HomeMy WebLinkAboutORD 04 (2004)ORDINANCE NO. 04 (2004)
AN ORDINANCE OF THE CITY OF DIAMOND BAR
APPROVING A DEVELOPMENT AGREEMENT BETWEEN
THE CITY AND LEWIS-DIAMOND BAR, LLC FOR THE
DIAMOND BAR VILLAGE PROJECT
THE CITY COUNCIL OF THE CITY OF DIAMOND BAR HEREBY ORDAINS AS
FOLLOWS:
Section 1. The City of Diamond Bar and Lewis -Diamond Bar, LLC, desire to
enter into a development agreement pursuant to Government Code Sections 65864
through 65869.5, and Chapter 22.62 of Title 22 of the Diamond Bar Municipal Code
with respect to real property located at the southeast corner of Diamond Bar Boulevard
and Grand Avenue in the City of Diamond Bar. The legal descriptions of said parcels
are more particularly described in the proposed development agreement, attached
hereto as Exhibit A and incorporated herein by reference.
Section 2. The Planning Commission conducted a public hearing to consider
the development agreement pursuant to Municipal Code Section 22.62.030(a) on
June 22, 2004, and recommended approval of the agreement. City Council held a
properly noticed public hearing regarding the proposed development agreement
pursuant to Section 22.62.030(b) on June 29, 2004. Both oral and written evidence
was presented both to the Commission and the Council.
Section 3. Based upon substantial evidence in the record of the proceeding
including, without limitation, the written and oral staff reports, the Initial Study and
Addendum prepared for the Diamond Bar Village project pursuant to the California
Environmental Quality Act, the General Plan, the proposed Specific Plan and the record
and decision of the Planning Commission, the City Council hereby finds that the
proposed development agreement is consistent with the General Plan of the City of
Diamond Bar and with the Diamond Bar Village Specific Plan. The City Council further
finds that the proposed development agreement complies with the zoning, subdivision,
and other applicable ordinances and regulations.
Section 4. The proposed development agreement is consistent with the public
convenience, general welfare, and good land use practice, making it in the public
interest to enter into the development agreement with the applicant. The development
agreement provides for the orderly and comprehensive development of a land area in a
visible and important location in the City. The development agreement ensures that the
project can be developed over time in its approved form, and that the applicant will
provide substantial public benefits as a part of the development.
Section 5. Taking into account all of the conditions of approval that have been
applied to the project, the City Council further finds that:
(a) The development agreement will not adversely affect the health, peace,
comfort or welfare of persons residing or working in the surrounding area,
since the project is in keeping with the character and general development
pattern of the existing area;
(b) The development agreement will not be materially detrimental to the use,
enjoyment or valuation of property of other persons located in the vicinity
of the site, since the development agreement ensures that public
improvements, additional infrastructure and other public benefits will be
provided as the project is constructed; or
(c) The development agreement will not jeopardize, endanger or otherwise
constitute a menace to the public health, safety or general welfare, since
the development agreement will provide public safety improvements such
traffic improvements and ample parking. Further, the project is
conditioned to comply with applicable fire, building and life safety codes
and regulations.
(d) The Development Agreement would be in the best interests of the City.
Development Agreement No. 2004-01 implements the proposed Diamond
Bar Village project and will provide certainty to the City and the Applicant
regarding the DBV development time table, impact fees, applicable
ordinances, overall development standards and similar matters. The
proposed DBV project will also transform an underutilized and graded site
into a functional and attractive development that will contribute to the
City's tax base. Because of this, the Agreement is in the best interests of
the City and its residents.
(e) The Development Agreement is consistent with the General Plan, any
applicable Specific Pian and the Development Code. Diamond Bar
Village, the subject of Development Agreement 2004-01, is consistent
with the General Plan (as amended), is the subject of an appropriate
Specific Plan and meets all applicable standards of the Development
Code. The administrative record and findings of this Resolution
demonstrate conformance with City requirements.
(f) The Development Agreement would promote the public interest and welfare
of the City. As stated above, Diamond Bar Village is a mixed-use
development that preserves open space and expands the City's tax base.
It retains a residential use adjacent to an existing residential area and limits
the commercial -retail and institutional use to an area adjacent to a major
intersection. Development Agreement No. 2004-01 implements this
development plan and thus promotes the public interest and welfare.
Section 6. The proposed development agreement complies with the terms,
conditions, restrictions and requirements of Section 22.62.040 of the Diamond Bar
Municipal Code. Pursuant to Diamond Bar Municipal Code Section 22.62.040(a), the
development agreement and the project approvals incorporated therein provide a
duration of the agreement, uses to be permitted on the property, permitted density,
maximum height, size and location of buildings, the reservation of land for public
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purposes such as open space, and a time schedule for public review. The proposed
development agreement also includes additional terms consistent with Diamond Bar
Municipal Code Section 22.62.040(b), such as construction schedules, bond and
insurance requirements, the provision of public improvements, and requirements for
yards, parking, ingress and egress.
Section 7. Pursuant to Section 21090 of CEQA and Sections 15006, 15162,
15164 and 15168 of the CEQA Guidelines, the Project, as defined in the Addendum, is
an action considered under the Medical Plaza and Revitalization EIRs, and there is
substantial evidence that there are no new significant environmental impacts, there is
no substantial increase in the severity of any previously identified impact and there are
no new mitigation measures required so as to warrant a supplemental or subsequent
EIR or negative declaration.
Section 8. Based upon the foregoing, the City Council hereby approves the
development agreement attached hereto as Exhibit "A" and authorizes the Mayor to
execute said development agreement on behalf of the City.
Section 9. The time within which to any legal challenge to the subject
development agreement must be brought is governed by Government Code Section
65009.
PASSED, APPROVED AND ADOPTED THIS6 LL DAY OF Ju1v2004, BY THE
CITY COUNCIL OF THE CITY OF DIAMOND BAR
B es, Mayor
I, Linda C. Lowry, 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 2_q±�day of June , 2004 and was finally passed at a regular
meeting of the City Council of the City of Diamond Bar held on the 6th day of
July , 2004 by the following vote:
AYES: Council Members: Chang, Huff, O'Connor, MPT/Herrera,
M/Zirbes
NOES: Council Members: None
ABSENT: Council Members: None
ABSTAIN: Council Members: None
City Clerk, City of Diamond Bai-
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Recorded at request of
Clerk, City Council
City of Diamond Bar
When recorded return to
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
Attention: City Clerk
Exempt from Filing Fees Gov. Code section 6103
DIAMOND BAR VILLAGE
DEVELOPMENT AGREEMENT NO. 2004-01
A STATUTORY DEVELOPMENT AGREEMENT
between
CITY OF DIAMOND BAR
a California municipal corporation
and
LEWIS-DIAMOND BAR, LLC,
a Delaware limited liability company
("Developer")
DEVELOPMENT AGREEMENT
This Development Agreement (hereinafter "Agreement") is entered into effective on the
Effective Date (defined below) by and between the City of Diamond Bar (hereinafter "CITY"), and
Lewis -Diamond Bar, LLC, a Delaware limited liability company (hereinafter "DEVELOPER"):
RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons
having legal or equitable interests in real property for the development of such property, pursuant to
Section 65864, et seMc . of the Government Code and Chapter 22.62 of the City's Municipal Code
(collectively the "DA Laws"); and
WHEREAS, DEVELOPER, as of the Effective Date, owns the real property which is the
subject of this Agreement (the "Property") and has an option to acquire certain additional real
property which may be annexed into this Agreement at a later date and made a part of the Property
(the "Annexable Property"); and
WHEREAS, DEVELOPER has requested CITY to enter into a development agreement and
proceedings have been taken in accordance with the DA Laws and all other rules and regulations of
CITY; and
WHEREAS, all of the rights and benefits of the Agreement shall inure to the benefit of the
Property and to DEVELOPER.
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils
of CITY by the obligations specified herein and limit the future exercise of CITY's ability to
regulate development on the Property; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive review by
CITY and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the City of Diamond Bar and the public
health, safety and welfare will be served by entering into this Agreement; and
WHEREAS, all of the procedures of the California Environmental Quality Act have been met
with respect to the Project and the Agreement, including the subsequent annexation of the Annexable
Property (as defined herein); and
WHEREAS, this Agreement and the Project are consistent with the Diamond Bar General
Plan and any Specific Plan applicable thereto; and
WHEREAS, all actions taken and approvals given by CITY have been duly taken or
approved in accordance with all applicable legal requirements for notice, public hearings, findings,
votes, and other procedural matters; and
WHEREAS, development of the Property in accordance with this Agreement will provide
substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the
orderly development of the Property, ensure progressive installation of necessary improvements,
provide for public services appropriate to the development of the Property, and generally serve the
purposes for which development agreements under the DA Laws are intended; and
WHEREAS, DEVELOPER has incurred and will in the future incur substantial costs in
excess of the generally applicable requirements in order to assure vesting of legal rights to develop
the Property in accordance with this Agreement.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in this Agreement shall be defined as
follows:
1.1.1 "Agreement" means this Development Agreement.
1.1.2 "Annexable Property" means the real property described on Exhibit "A-2" and
shown as a portion of Planning Area 1 on Exhibit "B".
law city.
1.1.3 "CITY" means the City of Diamond Bar, a municipal corporation and general
1.1.4 "City Council" means the City Council of the CITY.
1.1.5 "Condominium" means an estate in real property as defined in Civil Code
Sections 783 and 1351(f); Condominium units as defined in Civil Code Section 1351(f) are DU's as
defined in this Agreement.
1.1.6 "Current Development Approvals" mean all Development Approvals
approved or issued prior to the Effective Date. Current Development Approvals includes the
Approvals incorporated herein as Exhibit "C" and all other Development Approvals that are a matter
of public record on the Effective Date.
1.1.7 "Development" means the improvement of the Property for the purposes of
completing the structures, improvements and facilities comprising the Project including, but not
limited to: grading; the construction of infrastructure and public and private facilities related to the
Project whether located within or outside the Property; the construction of buildings and structures;
and the installation of landscaping. "Development" does not include the maintenance, repair,
reconstruction or redevelopment of any building, structure, improvement or facility after the
construction and completion thereof.
1.1.8 'Development Approvals" mean all permits and other entitlements for use
subject to approval or issuance by CITY in connection with development of the Property including,
but not limited to:
(a) specific plans and specific plan amendments;
(b) tentative and final subdivision and parcel maps;
(c) conditional use permits and site plans;
(d) zoning;
(e) design review approvals; and
(f) grading and building permits.
1.1.9 "Development Exaction" means any requirement of CITY in connection with
or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the
construction of improvements or public facilities, or the payment of fees in order to lessen, offset,
mitigate or compensate for the impacts of development on the environment or other public interests.
1.1.10 "Development Impact Fee" 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 a Iocal agency to
the 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 the development project, but does not include fees
specified in Government Code Section 66477, fees collected by CITY for other public agencies other
than the CITY, fees for processing applications for governmental regulatory actions or approvals,
fees collected under development agreements adopted pursuant to Article 2.5 (commencing with
Section 65864 of Chapter 4 of the Government Code), or fees collected pursuant to agreements with
redevelopment agencies which provide for the redevelopment of property in furtherance or for the
benefit of a redevelopment project for which a redevelopment plan has been adopted pursuant to the
Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24 of the
Health and Safety Code). 'Development Impact Fee" expressly excludes processing fees and charges
of every kind and nature imposed by CITY to cover the estimated actual costs to CITY ofprocessing
applications for Development Approvals or for monitoring compliance with any Development
Approvals granted or issued, including, without limitation, fees for zoning variances; zoning
changes; use permits; building inspections; building permits; filing and processing applications and
petitions filed with the local agency formation commission or conducting preliminary proceedings or
proceedings under the Cortese -Knox -Hertzberg Local Government Reorganization Act of 2000,
Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of
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maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section
66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3
(commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and
charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013,
66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and
Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public
Utilities Code, as such codes may be amended or superceded, including by amendment or
replacement.
1.1.11 "Development Plan" means the Current Development Approvals and the
Existing Land Use Regulations applicable to development of the Property.
1.1.12 "DEVELOPER" means Lewis -Diamond Bar, LLC, and its successor in
interest to all or any part of the Property
1.1.13 "DU's" means single-family and Condominium/townhouse residential
dwelling units, including detached and attached units for sale to the general public but do not include
residential units developed for rental purposes.
1.1.14 "Effective Date" means the date that is 31 days following the date that this
Agreement is approved by the City by final action of the City Council.
1.1.15 "EIR Addendum" means that certain Addendum to Environmental Impact
Report Nos. SCH No. 91121027 and 96111047 as described in Exhibit "C" attached hereto.
1.1.16 "Existing Land Use Regulations" mean all Land Use Regulations in effect on
the Effective Date. Existing Land Use Regulations include the Regulations incorporated herein as
Exhibit "D" and all other Regulations that are a matter of public record on the Effective Date.
1.1.17 "Land Use Regulations" mean all ordinances, resolutions, codes, rules,
regulations and official written policies of CITY governing the development and use of land,
including, without limitation, the permitted use of land, the density or intensity of use, subdivision
requirements, the maximum height and size of proposed buildings, the provisions for reservation or
dedication of land for public purposes, and the design, improvement and construction standards and
specifications applicable to the development of the property, as modified or supplemented by the
Current Development Approvals. "Land Use Regulations" does not include any CITY ordinance,
resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations;
(b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights and
interests that provide for the use of or the entry upon public property; or
(e) the exercise of the power of eminent domain.
1.1.1 S "Lot" means a legal subdivided lot.
1.1.19 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of
trust or any other security -device lender, and their successors and assigns.
1.1.20 "Project" means the development of the Property as contemplated by the
Development Plan as such Plan may be further defined, enhanced or modified pursuant to the
provisions of this Agreement.
1.1.21 "Property" means the real property described on Exhibit "A-1" and shown as
Planning Areas 2, 3, and 4 on Exhibit 'B" to this Agreement. The Property shall include the
"Annexable Property" upon recordation of a Notice of Annexation by Developer in the form of
Exhibit "A-3".
1.1.22 "Reservations of Authority" means the rights and authority excepted from the
assurances and rights provided to DEVELOPER under this Agreement and reserved to CITY under
Section 3.6 of this Agreement.
L 1.23 "Specific Plan" means the Diamond Bar Village Specific Plan No. 2004-01
approved June 29, 2004 by the City, Ordinance No. 03(2004).
1.1.24 "Subsequent Development Approvals" means all Development Approvals
approved by the City subsequent to the Effective Date in connection with development of the
Property.
1.1.25 "Subsequent Land Use Regulations" means any Land Use Regulations adopted
and effective after the Effective Date of this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference made apart
of, this Agreement:
Exhibit "A-1" -- Legal Description of Property.
Exhibit "A-2" - Description of Annexable Property
Exhibit "A-3" — Notice of Annexation
Exhibit "B" -- Map of Specific Plan Area
Exhibit "C" -- Current Development Approvals.
Exhibit "D" -- Existing Land Use Regulations.
Exhibit "E" — Grand Avenue Improvements.
Exhibit "F-1" — Commercial Component Description
Exhibit 7-2" — Letter of Credit Form
Schedule 1 — List of Pre -Approved Developers
Schedule 2 — Entitlement Processing Schedule
Schedule 3 — Project Impact Fees
2. GENERAL PROVISIONS.
2.1 Sinding Effect of Agreement. The Property is hereby made subj ect to this Agreement.
Development of the Property is hereby authorized and shall be carried out only in accordance with
the terms of this Agreement.
2.2 Ownership/Option. DEVELOPER represents and covenants that, as of the Effective
Date, it is the owner of the fee simple title to the Property and has an agreement to purchase the
Annexable Property. The Annexable Property is not owned or controlled by DEVELOPER and is
not a part of this Agreement; provided CITY and DEVELOPER agree that if DEVELOPER acquires
title to the Annexable Property, DEVELOPER agrees (i) to record a Notice of Annexation to annex
that Annexable Property into this Agreement within thirty (30) days after its acquisition of title to the
Annexable Property, (ii) that the Annexable Property will be developed by DEVELOPER consistent
with the Specific Plan and this Agreement; (iii) that the annexation of the Annexable Property is not
a discretionary act and is not a project within the meaning of CEQA, and (iv) that the environmental
consequences of annexing the Annexable Property have been evaluated in the Addendum. In the
event DEVELOPER fails to record the Notice of Annexation within the aforementioned 30 -day
period, the CITY shall have the unilateral right to execute and record that Notice of Annexation
without DEVELOPER's signature on the Notice.
2.3 Term. The term of this Agreement shall commence on the Effective Date and shall
continue for a period of five (5) years thereafter. This Agreement shall be void and of no force and
effect if DEVELOPER is not the owner of fee simple title to the Property as of the Effective Date.
2.4 Assignment.
2.4.1 Right to Assign. DEVELOPER shall have the right to sell, transfer or assign
the,Property in whole or in part (provided that no such partial transfer shall violate the Subdivision
Map Act, Government Code Section 66410, et seMc .), to any person, partnership, joint venture, firm or
corporation at any time during the term of this Agreement; provided, however, that any such sale,
transfer or assignment shall include the assignment and assumption of the rights, duties and
obligations arising under or from this Agreement and be made in strict compliance with the
following conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this Agreement
shall be made unless made together with the sale, transfer or assignment of all or a part of the
Property.
(b) Concurrent with any such sale, transfer or assignment, or within fifteen (15 )
business days thereafter, DEVELOPER shall notify CITY, in writing, of such sale, transfer or
assignment and shall provide CITY with an executed agreement, in a form reasonably acceptable to
CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or
assignee expressly and unconditionally assumes all the duties and obligations of DEVELOPER
under this Agreement.
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Any sale, transfer or assignment not made in strict compliance with the foregoing
conditions shall constitute a default by DEVELOPER under this Agreement. Notwithstanding the
failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of
this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser, transferee
or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or
assignee until and unless such agreement is executed; and the CITY approves of such purchaser,
transferee, or assignee, which approval shall not be unnecessarily withheld so long as the
requirements for Release of DEVELOPER are met in Section 2.4.2 below.
2.4.2 Release of DEVELOPER. Notwithstanding any sale, transfer or assignment,
DEVELOPER shall continue to be obligated under this Agreement as to that portion of the Property
sold, transferred or assigned unless DEVELOPER is given a release in writing by CITY, which
release shall be provided by CITY upon the full satisfaction by DEVELOPER of the following
conditions:
(a) DEVELOPER no longer has a legal or equitable interest in all or any part of
the Property sold;
(b) DEVELOPER is not then in default under this Agreement;
(c) DEVELOPER has provided CITY with the notice and executed agreement
required under Paragraph (b) of Subsection 2.4.1 above;
(d) The purchaser, transferee or assignee provides CITY with security equivalent
to any security previously provided by DEVELOPER to secure performance of its obligations
hereunder; and
(e) The purchaser, transferee, or assignee is a merchant home builder of DU's
and/or a developer of commercial/retail/office projects generally recognized by the Southern
California Building Industry Association as a quality, financially sound, developer, such as those
developers listed in Schedule 1 attached hereto.
2.4.3 Subsequent Assignment. Any subsequent sale, transfer or assignment after an
initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and
conditions of this Section.
2.4.4 Partial Release of Purchaser, Transferee or Assignee of Lot A purchaser,
transferee or assignee of a Lot, that has been finally subdivided as provided for in the Development
Plan and for which a site plan for development of the Lot has been finally approved pursuant to the
Development Plan, may submit a request, in writing, to CITY to release said Lot from the obligations
under this Agreement relating to all other portions of the Property. Within thirty (30) days of such
request, CITY shall review, and if the above site plan condition is satisfied shall approve the request
for release and notify the purchaser, transferee or assignee in writing thereof No such release
approved pursuant to this Subsection 2.4.4 shall cause, or otherwise effect, a release of
DEVELOPER from its duties and obligations under this Agreement as to the remainder of the
Property (exclusive of such Lot).
2.4.5 Termination of Agreement With Respect to Individual Lots Upon Sale to
Public and Completion of Construction. The restrictions and requirements of Subsection 2.4.1 shall
not apply to the sale or lease (for a period longer than one year) of any (i) Lot that has been finally
subdivided and/or any (ii) Condominium unit that is described on a condominium plan approved by
the City as defined in Civil Code Section 1351(e) (the "Condominium Plan") individually (and not in
"bulk") to a member of the public or other ultimate user. Notwithstanding any other provisions of
this Agreement, this Agreement shall terminate with respect to any Lot or Condominium unit and
such Lot or Condominium unit shall be released and no longer be subject to this Agreement without
the execution or recordation of any further document upon satisfaction of both of the following
conditions:
(a) The Lot has been finally subdivided and individually (and not in "bulk") sold
or leased (for a period longer than one year) to a member of the public or other ultimate user;
(b) The Condominium unit is described on a Condominium Plan approved by the
City and individually (and not in bulk) sold or leased (for a period longer than one year) to a member
of the public or other ultimate user; and,
(c) A final certificate of occupancy or similar certificate has been issued for a
building on the Lot or for the Condominium unit, and the fees set forth under Section 4 of this
Agreement have been paid.
2.5 Amendment or Cancellation of A rg eement. This Agreement may be amended or
cancelled in whole or in part only by written consent of all parties or their respective successors or
assigns with respect to their respective portions of the Property in the manner provided for in
Government Code Section 65868. This provision shall not limit any remedy of CITY or
DEVELOPER as provided by this Agreement.
2.6 Termination. This Agreement shall be deemed tenninated and of no further effect
upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section 2.3.
(b) Entry of a final judgment setting aside, voiding or annulling the adoption of
the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance
approving this Agreement.
(d) Completion of the Project in accordance with the terms of this Agreement,
including, without limitation, issuance of all required occupancy permits and acceptance by CITY or
applicable public agency of all required dedications.
Termination of this Agreement, except for termination under Section 7.4, shall not
constitute termination of any other land use entitlements approved for the Property. Except as
provided in Section 4, upon the termination of this Agreement, no party shall have any further right
or obligation hereunder except with respect to any obligation to have been performed prior to such
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termination or with respect to any default in the performance of the provisions of this Agreement that
has occurred prior to such termination or with respect to any obligations that are specifically set forth
as surviving this Agreement.
2.7 Notices.
(a) As used in this Agreement, "notice" includes, but is not limited to, the
communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver,
appointment or other communication required or permitted hereunder.
(b) All notices shall be in writing and shall be considered given either: (i) when
delivered in person to the recipient named below; or (ii) on the date of delivery 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; or (iii) on the date of delivery shown in the records of the telegraph company
after transmission by telegraph to the recipient named below. All notices shall be addressed as
follows: _
If to CITY:
City of Diamond Bar
21825 Copley Drive
Diamond Bar, CA 91765
Attention: City Manager
with a copy to:
Jenkins & Hogin
1230 Rosecrans Ave., Suite 110
Manhattan Beach, CA 90266
Attn: Michael Jenkins, Esq.
If to DEVELOPER:
Lewis -Diamond Bar, LLC
Attn. John M. Goodman
P. O. Box 670
Upland, CA 91785-0670
1156 N. Mountain Avenue
Upland, CA 91786-3633
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with a copy to:
Lewis Operating Corp.
Attn: W. Bradford Francke, Esq.
P. O. Box 670
Upland, CA 91785-0670
1156 N. Mountain Avenue
Upland, CA 91786-3633
(c) Either party may, by notice given at any time, require subsequent notices to be
given to another person or entity, whether a party or an officer or representative of a party, or to a
different address, or both. Notices given before actual receipt of notice of change shall not be
invalidated by the change.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservations
of Authority, DEVELOPER shall have a vested right to develop the Property in accordance with, and
to the extent of, the Development Plan. The Project shall remain subject to all Subsequent
Development Approvals required to complete the Project as contemplated by the Development Plan.
Except as otherwise provided expressly in this Agreement, the permitted uses of the Property, the
density and intensity of use, the maximum height and size of proposed buildings, the design,
improvement, and construction standards applicable to development of the Property, and provisions
for reservation and dedication of land for public purposes and Development Exactions shall be those
set forth in the Development Plan. Without limiting the foregoing, CITY and DEVELOPER agree
that the maximum density permitted for the Property is 200 DU's as provided in the Specific Plan,
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided
expressly under the terms of this Agreement including the Reservations of Authority, the rules,
regulations and official policies of the City governing permitted uses of the Property, the density and
intensity of use of the Property, the maximum height and size of proposed buildings, and the design,
improvement and construction standards and specifications applicable to development of the
Property shall be the Existing Land Use Regulations as modified by the Specific Plan and as
reflected in the other Current Development Approvals. In connection with any Subsequent
Development Approval, CITY shall exercise its discretion in accordance with the Development Plan,
and as provided by this Agreement including, but not limited to, the Reservations of Authority. CITY
shall accept for processing, review and action all applications for Subsequent Development
Approvals, and such applications shall be processed in the normal manner for processing such
matters, provided CITY shall use its best efforts to comply with the processing schedule attached
hereto as Schedule 1.
3.3 Timing of Development. The parties acknowledge that DEVELOPER cannot at this
time predict when or the rate at which phases of the Property will be developed. Such decisions
depend upon numerous factors that are not within the control of DEVELOPER, such as market
orientation and demand, interest rates, absorption, completion and other similar factors. Since the
California Supreme Court held in Pardee Construction -Co. v. City f„Camarillo (1984) 37 Cal.3d
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465, that the failure of the parties therein to provide for the timing of development resulted in a later
adopted initiative restricting the timing of development to prevail over such parties' agreement, it is
the parties' intent to cure that deficiency by acknowledging and providing that DEVELOPER shall
have the right to develop the Property in such order and at such rate and at such times as
DEVELOPER, in its sole and absolute discretion deems appropriate, subject only to any timing or
phasing requirements set forth in the Development Plan.
3.4 Phasing Plan. Development of the Property shall be subject to all timing and phasing
requirements established by the Development Plan.
3.5 Changes and Amendments. The parties acknowledge that development of the Project
will require Subsequent Development Approvals and may include changes that are appropriate and
mutually desirable in the Current Development Approvals. In the event DEVELOPER finds that a
change in the Current Development Approvals is necessary or appropriate, DEVELOPER shall apply
for a Subsequent Development Approval to effectuate such change and CITY shall process and act
on such application in accordance with the Existing Land Use Regulations, except as otherwise
provided by this Agreement, including, without limitation, the Reservations of Authority. If
approved, any such change in the Current Development Approvals shall be incorporated herein as an
addendum to Exhibit "C", and may be further changed from time to time as provided in this Section.
Unless otherwise required by law, as determined in CITY's reasonable discretion, a change to the
Current Development Approvals shall be deemed "minor" and not require an amendment to this
Agreement but instead require only the approval of the City Manager (or its designee) provided such
change does not:
(a) Alter the permitted uses of the Property as a whole; or,
(b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height of permitted buildings; or,
(d) Delete a requirement for the reservation or dedication of land for public
purposes within the Property as a whole or modify the Development Exactions; or,
(e) Constitute a project requiring a subsequent or supplemental environmental
impact report pursuant to Section 21166 of the Public Resources Code; or
(f) Permit material changes to the architecture, design, or materials provided for
in the Current Development Approvals or Subsequent Development Approvals for the Project; or
(g) Extend the term of this Agreement; or
(h) Reduce the benefits to the CITY or Development Exactions provided for in
this Agreement. .
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3.6 Reservations of Authority.
3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other
provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the
development of the Property:
(a) Processing fees and charges of every kind and nature imposed by CITY to
cover the estimated actual costs to CITY of processing applications for Development Approvals or
for monitoring compliance with any Development Approvals granted or issued.
(b) Procedural regulations relating to hearing bodies, petitions, applications,
notices, findings, records, hearings, reports, recommendations, appeals and any other matter of
procedure.
(c) Regulations governing construction standards and specifications including,
without limitation, the CITY's Building Code, Plumbing Code, Mechanical Code, Electrical Code,
Fire Code and Grading Code that are applied uniformly and on a City-wide basis to all development
projects of a similar type as the Project.
(d) Regulations imposing Development Exactions except as set forth in this
Agreement; provided, however, that no such subsequently adopted Development Exaction shall be
applicable to development of the Property unless such Development Exaction is applied uniformly to
development, either throughout the CITY or within a defined area of benefit that includes the
Property. No such subsequently adopted Development Exaction shall apply if its application to the
Property would prevent or increase the cost of development of the Property for the uses and to the
density or intensity of development set forth in the Development Plan. In the event any such
subsequently adopted Development Exaction fulfills the same purposes, in whole or in part, as the
fees set forth in Section 4 of this Agreement, CITY shall allow a credit against such subsequently
adopted Development Exaction for the fees paid under Section 4 of this Agreement to the extent
such fees fulfill the same purposes.
(e) Regulations that may be in conflict with the Development Plan but that are
reasonably necessary to protect the public health and safety of the residents of the Project or
immediate community. To the extent possible, any such regulations shall be applied and construed so
as to provide DEVELOPER with all of the rights and assurances provided under this Agreement.
(f) Regulations that are not in conflict with the Development Plan. Any
regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development of
the Property shall be deemed to conflict with the Development Plan and shall therefore not be
applicable to the development of the Property.
(g) Regulations that are in conflict with the Development Plan provided
DEVELOPER has given written consent to the application of such regulations to development of the
Property.
(h) Regulations that impose non-discriminatory City-wide taxes. assessments
and/or fees, including but no limited to franchise fees or business taxes upon all residents or
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nonresidential users (commercial or industrial) of real property in the CITY similar to the DU's or the
Commercial Component but not including any Development Exaction or other fee designed to
mitigate the impacts of the development of the Project.
3.6.2 Subse uent Development Approvals. This Agreement shall not prevent CITY,
in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations
that do not conflict with the Development Plan, nor shall this Agreement prevent CITY from denying
or conditionally approving any Subsequent Development Approval on the basis of the Existing Land
Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.
Without Iimiting the foregoing, DEVELOPER acknowledges that nothing in this Agreement limits
the right of the City to conduct design review in accordance with its Existing Land Use Regulations
prior to issuing any building permits for improvements on the Property. DEVELOPER further
acknowledges that such design review may result in modifications to the conceptual elevations and
site plans included in the Specific Plan.
3.6.3 Modification or Sust3ension by State or Federal Law. In the event that State or
Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude
compliance with one or more of the provisions of this Agreement, such provisions of this Agreement
shall be modified or suspended as may be necessary to comply with such State or Federal laws or
regulations, provided, however, that this Agreement shall remain in full force and effect to the extent
it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not
render such remaining provisions impractical to enforce.
3.6.4 Intent. The parties acknowledge and agree that CITY is restricted in its
authority to limit its police power by contract and that the foregoing limitations, reservations and
exceptions are intended to reserve to CITY all of its police power that cannot be so limited. This
Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such
power and authority that cannot be restricted by contract.
3.7 Public Works. If DEVELOPER is required by this Agreement to construct any
improvements that will be dedicated to CITY or any other public agency upon completion, and if
required by applicable laws to do so, DEVELOPER shall perform such work in the same manner and
subject to the same requirements as would be applicable to CITY or such other public agency should
it have undertaken such construction.
3.8 Provision of Real Property Interests by CITY. In any instance where DEVELOPER is
required to construct any public improvement on land not owned by DEVELOPER, DEVELOPER
shall at its sole cost and expense provide or cause to be provided, the real property interests
necessary for the construction of such public improvements. In the event DEVELOPER is unable,
after exercising commercially reasonable efforts, for a period of ninety (90) days, to acquire the real
property interests necessary for the construction of such public improvements, and if so instructed by
DEVELOPER and upon DEVELOPER'S provision of adequate security for costs CITY may
reasonably incur, CITY shall negotiate the purchase of the necessary real property interests to allow
DEVELOPER to construct the public improvements as required by this Agreement and, if necessary,
in accordance with the procedures established by law, use its power of eminent domain to acquire
such required real property interests. DEVELOPER shall pay all costs associated with such
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acquisition or condemnation proceedings. This Section 3.8 is not intended by the parties to impose
upon the DEVELOPER an enforceable duty to acquire land or construct any public improvements on
land not owned by DEVELOPER, except to the extent that the DEVELOPER elects to proceed with
the development of the Project, and then only in accordance with valid conditions consistent with the
Development Plan imposed by the CITY upon the development of the Project under the Subdivision
Map Act or other legal authority.
3.9 Regulation by Other Public Agencies. It is acknowledged by the parties that other
public agencies not within the control of CITY possess authority to regulate aspects of the
development of the Property separately from or jointly with CITY and this Agreement does not limit
the authority of such other public agencies.
3.10 Tentative Tract Map Extension. Notwithstanding the provisions of Section 66452.6 of
the Government Code, no tentative subdivision map or tentative parcel map, heretofore or hereafter
approved in connection with development of the Property, shall be granted an extension of time
except in accordance with the Existing Land Use Regulations.
3.11 Vesting Tentative Mans. If any tentative or final subdivision map, or tentative or final
parcel map, heretofore or hereafter approved in connection with development of the Property, is a
vesting map under the Subdivision Map Act (Government Code Section 66410, et seq.) and if this
Agreement is determined by a final judgment to be invalid or unenforceable insofar as it grants a
vested right to develop to DEVELOPER, then and to that extent the rights and protections afforded
DEVELOPER under the laws and ordinances applicable to vesting maps shall supersede the
provisions of this Agreement. Except as set forth immediately above, development of the Property
shall occur only as provided in this Agreement, and the provisions in this Agreement shall be
controlling over any conflicting provision of law or ordinance concerning vesting maps.
4. PUBLIC BENEFITS.
4.1 Intent. The parties acknowledge and agree that development of the Property will result
in substantial public needs that will not be fully met by the Development Plan and further
acknowledge and agree that this Agreement confers substantial private benefits on DEVELOPER
that should be balanced by commensurate public benefits. Accordingly, the parties intend to provide
consideration to the public to balance the private benefits conferred on DEVELOPER by providing
more fully for the satisfaction of the public needs resulting from the Project. Developer's obligations
under this Section 4 shall survive any termination of this Agreement except termination under
Section 7.5.
4.2 Development Impact Fees/Traffic Fee.
4.2.1 City Traffic Fee. DEVELOPER shall pay to the City a development impact
fee (the "City Traffic Impact Fee") equal to the "fair share" cost of those traffic improvements
allocable to the Property (and allocable to the Annexable Property when annexed to this Agreement)
as determined by the Project traffic study in accordance with Government Code Section 66000 et
seq.
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4.2.2 Time of PgMent. The City Traffic Fee required pursuant to Subsection 4.2.1
for the Property (and for the Annexable Property) shall be paid to CITY on the dates set forth in
Schedule 3. During the term of this Agreement, commencing as of the Effective Date, the City
Traffic Fee shall not be increased with respect to this Project,
4.2.3 In -Lieu Construction. DEVELOPER shall be entitled to credit against the
City Traffic Fee for the construction of any of the improvements for which those fees are paid. Such
credit shall be equal to the City's program costs for such improvement(s) listed on the "Fair Share"
studies used by City to determine those fees.
4.3 Project Park Requirement.
4.3.1 Quimby Fees. DEVELOPER currently contemplates the construction of 200
Condominium/townhouse DU's for which DEVELOPER shall pay Quimby Act Fees in the amount
and at the times set forth in Schedule 3 attached hereto in accordance with Chapter 21.32.040(D) of
the City's Municipal Code (the "Quimby Act Fees"). CITY agrees that the Quimby Act Fees shall
not be increased during the term of this Agreement. CITY and DEVELOPER agree that the Quimby
Act Fees were determined by using the fair market value of land located in the CITY reasonably
suitable for park purposes as mutually agreed by CITY and DEVELOPER.
4.3.2 Improvement Credits. DEVELOPER shall receive credit against the Quimby
Act Fees for any offsite park improvements or land dedications made by DEVELOPER.
4.3.3 Private Park Improvements. DEVELOPER shall design and construct private
park improvements for the exclusive use of the future residents of the DU's (the "Private Park
Improvements") of a type, size and quality reasonably approved by CITY. CITY and DEVELOPER
shall engage in good faith negotiations following execution of this Development Agreement for the
purpose of developing a conceptual design of the Private Park Improvements. DEVELOPER's
construction of the Private Park Improvements and payment of the Quimby Act Fees fully and
completely satisfies DEVELOPER's Quimby Act Fee obligation imposed against the DU's
constructed in the Project.
4.3.4 Park Credit. DEVELOPER may be entitled to credit against the Quimby Act
Fees for the value of private open space within the Property which is improved with Private Park
Improvements for active recreational uses in accordance with Government Code Section 60477(e) as
determined by the City in its reasonable discretion.
4.4 Development A_ eement Fees.
4.4.1 Residential Fees. Developer agrees to pay to the CITY a development
agreement fee at the issuance of certificates of occupancy for each DU in the Project as follows:
$5,000 per DU for the first 75 DU's
$12,000 per DU for the second 75 DU's
$14,500 per DU for the final 50 DU's
�L•
4.5 Commercial Fee.
4.5.1 Commercial Anchor/Letter of Credit. DEVELOPER acknowledges that the
development of the DU's will result in fiscal impacts to the CITY by reason of the need to furnish
CITY services, including, without limitation, police, fire, and utility services for which the DU's do
not generate tax revenue to offset the cost of those services. DEVELOPER intends to purchase the
Annexable Property and to develop that Property in accordance with the Specific Plan for the
commercial and retail uses described in Exhibit "F-1" attached hereto (the "Commercial
Component") that will generate significant sales tax revenue to the CITY. DEVELOPER
acknowledges and agrees that CITY would suffer the fiscal impacts of the DU's if DEVELOPER
fails to purchase the Annexable Property and/or timely develop the Commercial Component with a
Home Depot, Target, Lowes, or comparable sales tax generator reasonably approved by the CITY,
containing at least 130,000 square feet (the "Commercial Anchor"). As such, DEVELOPER agrees,
within thirty (30) days following the Effective Date of this Agreement, and provided there are no
lawsuits filed challenging this Agreement or any of the Current Development Approvals, or the
Project's CEQA compliance, to post a Two Million Dollar ($2,000,000.00) Letter of Credit to the
City to ensure timely development of the Commercial Anchor. The Letter of Crede shall be in the
form of Exhibit 7-2" attached hereto. If construction of a Commercial Anchor does not commence
on the Annexable Property on or prior to June 1, 2005, of if the Commercial Anchor is not open to
the general public by April, 2006, (each an "LC Default"), then the CITY may draw down the Letter
of Credit at the rate of Forty-one Thousand Six Hundred Sixty-six Dollars ($41,666.00) per month
until the earlier of (i) the date the applicable LC Default is cured, or (ii) until the $2,000,000 Letter of
Credit is exhausted.
following:
4.5.2 The right of the CITY to draw down the Letter of Credit is conditioned on the
(a) Permitted delays set forth in Section 10.10 of this Agreement.
(b) Timely CITY processing of Subsequent Development Approvals,
as provided in Section 3.6.2 and Schedule 2 herein.
(c) Final CITY approval of all Subsequent Development Approvals
required for construction of the DU's and for construction of the
Commercial Anchor.
(d) CITY completion of the Grand Avenue Improvements described in
Exhibit "E" benefitting the Commercial Component, within the
schedule set forth in Exhibit "E".
(e) CITY shall not otherwise be in materia] default under this
Agreement.
4.5.3 The Letter of Credit, and CITY's rights to draw against the Letter of Credit,
shall be the sole remedy available to CITY if DEVELOPER fails to acquire the Annexable Property
or timely develop the Commercial Anchor. CITY acknowledges that DEVELOPER shall not be
17
liable for any failure of the Commercial Component, including the Commercial Anchor, after
completion thereof, to generate sales tax revenue in amounts projected or anticipated by the CITY.
4.6 No Additional Impact Fees. Except for the City Traffic Fee and the Quimby Fees, the
City may not impose any new, additional, or increased Development Impact Fees upon the Property
during the term of this Agreement.
5, REVIEW FOR COMPLIANCE
5.1 Periodic Review. The City Manager (or its designee) 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 a form acceptable to the City Manager (or its designee), within 30
days after written notice from the City Manager (or its designee). The Annual Monitoring Report
shall be accompanied by an annual review and administration fee sufficient to defray the estimated
costs of review and administration of the Agreement during the succeeding year. The amount of the
annual review and administration fee shall be set annually by resolution of the City Council.
5.2 Special Review. The City Council may order a special review of compliance with this
Agreement at any time. The City Manager (or its designee) shall conduct such special reviews.
5.3 Procedure.
(a) 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.
(b) Upon completion of a periodic review or a special review, the City Manager
(or its designee) shall submit a report to the City Council 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.
(c) If the City Council finds 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.
(d) If the City Council makes a preliminary finding that DEVELOPER has not
complied in good faith with the terms and conditions of this Agreement, the City Council may
modify or terminate this Agreement as provided in Section 5.4 and Section 5.5. Notice of default as
provided under Section 7.4 of this Agreement shall be given to DEVELOPER prior to or concurrent
with, proceedings under Section 5.4 and Section 5.5.
5.4 Proceedings Upon Modification or Termination. If, upon a finding under Section 6.3,
CITY determines to proceed with modification or termination of this Agreement, CITY shall give
written notice to DEVELOPER of its intention so to do. The notice shall be given at least ten
calendar days prior to the scheduled hearing and shall contain:
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(a) The time and place of the hearing;
(b) A statement as to whether or not CITY proposes to terminate or to modify the
Agreement; and,
(c) Such other information as is reasonably necessary to inform DEVELOPER of
the nature of the proceeding.
5.5 Heating on Modification or Termination. At the time and place set for the hearing on
modification or termination, DEVELOPER shall be given an opportunity to be heard. 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.
5.6 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 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 City Manager (or its designee) 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 Los Angeles County Recorder.
Whether or not the Certificate is relied upon by assignees or other transferees or
DEVELOPER, CITY shall not be bound by a Certificate if a default existed at the time of the
periodic or special review, but was concealed from or otherwise not known to the City Manager (or
its designee) or City Council.
6. PREVAILING WAGES.
6.1 Public Works Determination. DEVELOPER has been alerted to the requirements of
California Labor Code section 1770 et seg., including, without limitation S.B. 975, which require the
payment of prevailing wage rates and the performance of other requirements if it is determined that
this Development Agreement constitutes a public works contract. It shall be the sole responsibility
of DEVELOPER to determine whether to pay prevailing wages for any or all work required by this
Development Agreement. Asa material part of this Development Agreement, DEVELOPER agrees
to assume all risk of liability arising from any decision not to pay prevailing wages for work required
by this Development Agreement.
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6.2 Indemnification. As a further material part of this Development Agreement,
DEVELOPER agrees to indemnify, defend and hold harmless the CITY, its officials, officers,
employees, consultants and agents from any and all claims, liability, loss, costs, damages, expenses,
fines and penalties, of whatever type or nature, including all costs of defense and attorneys' fees,
arising from any alleged failure of the DEVELOPER or DEVELOPER's contractors to comply with
the prevailing wage laws of the State of California. If the CITY or any of the other indemnified
parties is named as a party in any dispute arising from the failure of DEVELOPER or
DEVELOPER's contractors to pay prevailing wages, DEVELOPER agrees that the CITY and those
other indemnified parties may appoint their own independent counsel, and DEVELOPER agrees to
pay all attorneys' fees and defense costs of the CITY and the other indemnified parties as billed, in
addition to all other damages, fines, penalties, and losses incurred by the CITY and those other
indemnified parties as a result of the action.
7. DEFAULT AND REMEDIES.
7.1 Remedies in General. It is acknowledged by the parties that neither party would have
entered into this Agreement if it were to be liable in 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 that neither party shall be liable in damages to the
other party, or to any successor in interest of such party, or to any other person, and each party
covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action that arises out of
this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or
provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding
the application or interpretation or effect of the provisions of this Agreement.
7.2 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:
(a) Money damages are unavailable against CITY or DEVELOPER as provided in
Section 7.1 above; provided nothing in this Agreement precludes CITY from exercising its rights to
enforce bonds or other security furnished by DEVELOPER to CITY as required in the Development
Plan.
(b) Due to the size, nature and scope of the Project, it may not be practical or
possible to restore the Property 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 Property or portions thereof DEVELOPER has invested significant time and
20
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.
7.3 Release. Except for nondamage remedies, including the remedy of specific
performance as provided in Section 7.2, and judicial review as provided for in Section 5.5,
DEVELOPER, for itself, its successors and assignees, hereby releases the CITY, its officials,
officers, agents and employees from any and all claims, demands, actions, or suits of any kind or
nature arising out of any liability, known or unknown, present or future, including, but not limited to,
any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California
Constitution, the Fifth Amendment of the United States Constitution, or any other law -or ordinance
that seeks to impose any other liability or damage, whatsoever, upon the CITY because it entered
into this Agreement or because of the terms of this Agreement.
7.4 Termination or Modification of Agreement for Default of DEVELOPER. Subject to
the provisions contained in Subsection 5.5 herein, CITY may terminate or modify this Agreement for
any failure of DEVELOPER to perform any material duty or obligation of DEVELOPER under this
Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as
"default"); provided, however, CITY may terminate or modify this Agreement pursuant to this
Section only after providing written notice to DEVELOPER of default setting forth the nature of the
default and the actions, if any, required by DEVELOPER to cure such default and, where the default
can be cured, DEVELOPER has failed to take such actions and cure such default within 60 days after
the effective date of such notice or, in the event that such default cannot be cured within such 60 day
period but can be cured within a longer time, has failed to commence the actions necessary to cure
such default within such 60 day period and to diligently proceed to complete such actions and cure
such default.
7.5 Termination of Agreement for Default of CITY. DEVELOPER may terminate this
Agreement only in the event of a default by CITY in the performance of a material term of this
Agreement and only after providing written notice to CITY of default setting forth the nature of the
default and the actions, if any, required by CITY to cure such default and, where the default can be
cured, CITY has failed to take such actions and cure such default within 60 days after the effective
date of such notice or, in the event that such default cannot be cured within such 60 day period but
can be cured within a longer time, has failed to commence the actions necessary to cure such default
within such 60 day period and to diligently proceed to complete such actions and cure such default.
THIRD PARTY LITIGATION
8.1 General Plan Litigation. CITY has determined that this Agreement is consistent with
its General Plan, and that the General Plan meets all requirements of law. DEVELOPER has
reviewed the General Plan and concurs with CITY's determination.
CITY shall have no liability in damages under this Agreement for any failure of CITY to
perform under this Agreement or the inability of DEVELOPER to develop the Property as
contemplated by the Development Plan of this Agreement as the result of a judicial determination
21
that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid
or inadequate or not in compliance with law.
8.2 Third Party Litigation Concerning Agreement. DEVELOPER shall defend, at its
expense, including attorneys' fees, indemnify, and hold harmless CITY, its agents, officials, officers,
independent contractors, subcontractors, and employees from any claim, action or proceeding against
CITY, its agents, officials, officers, independent contractors, subcontractors, or employees to attack,
set aside, void, or annul the approval of this Agreement or the approval of any Subsequent
Development Approval granted pursuant to this Agreement. CITY shall promptly notify
DEVELOPER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If
CITY fails to promptly notify DEVELOPER of any such claim, action or proceeding, or if CITY
fails to cooperate in the defense, DEVELOPER shall not thereafter be responsible to defend,
indemnify, or hold harmless CITY. CITY may, in its discretion, participate in the defense of any
such claim, action or proceeding.
8.3 Indemnity. In addition to the provisions of Section 8.2 above; DEVELOPER shall
indemnify and hold CITY, its officials, officers, agents, employees and independent contractors free
and harmless from any liability whatsoever, based or asserted upon any act or omission of
DEVELOPER, its officers, agents, employees, subcontractors and independent contractors, for
property damage, bodily injury, or death (DEVELOPER's employees included) or any other element
of damage of any kind or nature, relating to or in any way connected with or arising from the
activities contemplated hereunder, including, but not limited to, the study, design, engineering,
construction, completion, failure or conveyance of the public improvements, save and except claims
for damages to the extent arising through the gross active negligence or willful misconduct of CITY.
DEVELOPER shall defend, at its expense, including attorneys' fees, CITY, its officers, officials,
agents, employees, subcontractors and independent contractors in any action or proceeding based
upon such alleged acts or omissions. CITY may, in its discretion, participate in the defense of any
such action or proceeding.
8.4 Environment Assurances. DEVELOPER shall indemnify and hold CITY, its officers,
officials, agents, independent contractors, subcontractors, and employees free and harmless from any
liability, based or asserted, upon any act or omission of DEVELOPER, its officers, agents,
employees, subcontractors, predecessors in interest, successors, assigns and independent contractors
for any violation of any federal, state or local law, ordinance or regulation relating to industrial
hygiene or to environmental conditions on, under or about the Property, including, but not limited to,
soil and groundwater conditions, and DEVELOPER shall defend, at its expense, including attorneys'
fees, CITY, its officers, officials, independent contractors, subcontractors, agents and employees in
any action based or asserted upon any such alleged act or omission. CITY may, in its discretion,
participate in the defense of any such action.
8.5 Reservation ofRi ghts. With respect to Sections 8.2, 8.3 and 8.4 herein, CITY reserves
the right to either (1) approve the attorney(s) that DEVELOPER selects, hires or otherwise engages
to defend CITY hereunder, which approval shall not be unreasonably withheld, or (2) conduct its
own defense, provided, however, that DEVELOPER shall reimburse CITY forthwith for any and all
reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting
therefor.
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8.6 Survival. The provisions of this Sections 8.1 through 8.6, inclusive, shall survive the
termination of this Agreement.
9. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit DEVELOPER, in any
manner, at DEVELOPER's sole discretion, from encumbering the Property or any portion thereof or
any improvement thereon by any mortgage, deed of trust or other security device securing financing
with respect to the Property. CITY acknowledges that Mortgagees providing such financing may
require certain Agreement interpretations and modifications and agrees upon request, from time to
time, to meet with DEVELOPER and representatives of such Mortgagees to negotiate in good faith
any such request for interpretation or modification. CITY will not unreasonably withhold its consent
to any such requested interpretation or modification provided such interpretation or modification is
consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be
entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall
defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good
faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or
any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner
specified herein for giving notices, shall be entitled to receive written notification from CITY of any
default by DEVELOPER in the performance of DEVELOPER's obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of any
notice of default 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 default to
DEVELOPER. The Mortgagee shall have the right, but not the obligation, to cure the default during
the remaining cure period allowed such party under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure,
shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any
other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty
under this Agreement to perform any of DEVELOPER's obligations or other affirmative covenants
of DEVELOPER hereunder, or to guarantee such performance; provided, however, that to the extent
that any covenant to be performed by DEVELOPER is a condition precedent to the performance of a
covenant by CITY , the performance thereof shall continue to be a condition precedent to CITY's
performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee
in possession shall be subject to the provisions of Section 2.4 of this Agreement.
23
10. MISCELLANEOUS PROVISIONS
10.1 Recordation of Agreement. This Agreement and any amendment or cancellation
thereof shall be recorded with the Los Angeles County Recorder by the City Clerk within the period
required by Section 65868.5 of the Government Code.
10.2 Entire Agreement. This Agreement sets forth and contains the entire understanding
and agreement of the parties, and there are no oral or written representations, understandings or
ancillary covenants, undertakings or agreements that are not contained or expressly referred to
herein. No testimony or evidence of any such representations, understandings or covenants shall be
admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions
of this Agreement.
10.3 Severability. If any term, provision, covenant or condition of this Agreement shall be
determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected
thereby to the extent such remaining provisions are not rendered impractical to perform taking into
consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the
public benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth
therein, are essential elements of this Agreement and CITY would not have entered into this
Agreement but for such provisions, and therefore in the event such provisions are determined to be
invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and
effect whatsoever.
10.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder
shall be governed and interpreted in accordance with the laws of the State of California. This
Agreement shall be construed as a whole according to its fair language and common meaning to
achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be employed in interpreting
this Agreement, all parties having been represented by counsel in the negotiation and preparation
hereof.
10.5 Section Headings. All section headings and subheadings are inserted for convenience
only and shall not affect any construction or interpretation of this Agreement.
10.6 Singular and Plural. As used herein, the singular of any word includes the plural.
10.7 Time of Essence. Time is of the essence in the performance of the provisions of this
Agreement as to which time is an element.
10.8 Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon
the default of the other party, shall not constitute a waiver of such party's right to insist and demand
strict compliance by the other party with the terms of this Agreement thereafter.
10.9 No Third Party Beneficiaries. This Agreement is made and entered into for the sole
protection and benefit of the parties and their successors and assigns. No other person shall have any
right of action based upon any provision of this Agreement.
24
10.10 Force Majeure. Neither party shall be deemed to be in default where failure or delay
in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other
Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the
party's control, (including the party's employment force), government regulations, court actions (such
as restraining orders or injunctions), or other causes beyond the party's control. If any such events
shall occur, the term of this Agreement and the time for performance by either party of any of its
obligations hereunder maybe extended by the written agreement of the parties for the period of time
that such events prevented such performance, provided that the term of this Agreement shall not be
extended under any circumstances for more than five (5) years.
10.11 Mutual Covenants. The covenants contained herein are mutual covenants and also
constitute conditions to the concurrent or subsequent performance by the party benefitted thereby of
the covenants to be performed hereunder by such benefitted party.
10.12 Successors in Interest. The burdens of this Agreement shall be binding upon, and the
benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement.
All provisions of this Agreement shall be enforceable as equitable servitudes rand constitute
covenants running with the land. Each covenant to do or refrain from doing some act hereunder with
regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of
the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party
and each successor in interest during ownership of the Property or any portion thereof.
10.13 Counterparts. This Agreement maybe executed by the parties in counterparts, which
counterparts shall be construed together and have the same effect as if ali of the parties had executed
the same instrument.
10.14 Jurisdiction and Venue. Any action at law or inequity arising under this Agreement or
brought by a party hereto for the purpose of enforcing, construing or determining the validity of any
provision of this Agreement shall be filed and tried in the Superior Court of the County of Los
Angeles, State of California, and the parties hereto waive all provisions of law providing for the
filing, removal or change of venue to any other court.
10.15 Project as a Private Undertaking. It is specifically understood and agreed by and
between the parties hereto that the development of the Project is a private development, that neither
party is acting as the agent of the other in any respect hereunder, and that each party is an
independent contracting entity with respect to the terms, covenants and conditions contained in this
Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between CITY and DEVELOPER is that of a government entity
regulating the development of private property and the developer of such property.
10.16 Further Actions and Instruments. Each of the parties shall cooperate with and provide
reasonable assistance to the other to the extent contemplated hereunder in the performance of all
obligations under this Agreement and the satisfaction of the conditions of 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 and take
any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent
25
and to fulfill the provisions of this Agreement or to evidence or consummate the transactions
contemplated by this Agreement.
10.17 Eminent Domain. No provision of this Agreement shall be construed to limit or
restrict the exercise by CITY of its power of eminent domain.
10.18 Agent for Service of Process. In the event DEVELOPER is not a resident of the State
of California or it is an association, partnership or joint venture without a member, partner or joint
venturer resident of the State of California, or it is a foreign corporation, then in any such event,
DEVELOPER shall file with the City Manager (or its designee), upon its execution of this
Agreement, a designation of a natural person residing in the State of California, giving his or her
name, residence and business addresses, as its agent for the purpose of service of process in any court
action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any
process in any such action shall constitute valid service upon DEVELOPER. If for any reason service
of such process upon such agent is not feasible, then in such event DEVELOPER may be personally
served with such process out of Los Angeles County and such service shall constitute valid service
upon DEVELOPER. DEVELOPER is amenable to the process so served, submits to -the jurisdiction
of the Court referenced in Section 10.14 so obtained and waives any and all objections and protests
thereto. DEVELOPER for itself, assigns and successors hereby waives the provisions of the Hague
Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or
Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).
10.19 Authority to Execute. The person or persons executing this Agreement on behalf of
DEVELOPER warrants and represents that he or she/they have the authority to execute this
Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and
represents that he or she/they hasihave the authority to bind DEVELOPER to the performance of its
obligations hereunder.
10.20 DEVELOPER ACKNOWLEDGES AND AGREES THAT DEVELOPER
THOROUGHLY REVIEWED THIS AGREEMENT THE RIGHTS AND OBLIGATIONS OF
DEVELOPER UNDER THIS AGREEMENT, WITH LEGAL COUNSEL, AND DEVELOPER
HAS EQUAL BARGAINING POWER AND THE REQUISITE EXPERIENCE,
SOPHISTICATION, AND FINANCIAL STRENGTH TO UNDERSTAND, INTERPRET, AND
AGREE TO THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
THE TERMS OF SECTION 4.4 OF THIS AGREEMENT. DEVELOPER ACKNOWLEDGES
AND AGREES THAT IT HAS EVALUATED THE RISKS AND MERITS OF OBLIGATIONS
AND BENEFITS OF THIS AGREEMENT AND IS WILLING AND ABLE TO BEAR THE
ECONOMIC RISK OF THIS AGREEMENT AND ALL REMEDIES RELATED THERETO.
091
EXHIBIT "A-1"
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Legal Description of Property
THE LAND SITUATED IN THE STATE OF CALIFORNIA, CITY OF DIAMOND BAR COUNTY
OF LOS ANGELES:
PARCEL A:
PARCELS 2 AND 3 OF PARCEL MAP NO. 14819, IN THE CITY OF DIAMOND BAR, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA AS PER MAP FILED IN BOOK 154, PAGES 27
TO 30 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY.
EXCEPT THEREFROM ALL OIL & GAS AND OTHER HYDROCARBONS AND MINERALS
NOW OR AT ANY TIME HEREAFTER SITUATED THEREIN AND THEREUNDER AS
RESERVED IN DEED OF TRANSAMERICA DEVELOPMENT COMPANY, A CORPORATION,
RECORDED MARCH 29, 1968, BOOK D3955 PAGE 185, OFFICIAL RECORDS. AND RE-
RECORDED JUNE 19, 1969, BOOK D4407, PAGE 591, OFFICIAL RECORDS. ALL SURFACE
RIGHTS TO A DEPTH OF 500 FEET WERE QUTTCLAIlVIED BY INSTRUMENT RECORDED
OCTOBER 9, 1981 AS INSTRUMENT NO. 81-1004553, OFFICIAL RECORDS.
PARCEL A 1:
THOSE CERTAIN NON-EXCLUSIVE PERPETUAL ROAD EASEMENTS GRANTED IN
ACCORDANCE WITH SECTIONS 5.01, 5.02, AND 5.03 OF THAT CERTAIN DECLARATION
OF RESTRICTIONS, SLOPE. DEVELOPMENT, MAINTENANCE AND EASEMENT DATED
MARCH 2. 1983, AND RECORDED MARCH 2, 1983 AS INSTRUMENT NO. 83-237794,
OFFICIAL RECORDS.
Exhibit "A -I"
EXHIBIT "A-2"
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Description of Annexable Property
Annexable Property is that portion of Planning Area 1 which provides for commerciai-retail
development of the type generally shown on Exhibit 7-1" attached hereto.
Exhibit "A-2"
EXHIBIT "A-3"
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Notice of Annexation
Recording requested by:
TITLE COMPANY
Order No.
When recorded return to:
(Space Above This Line for Recorder's Use Only)
NOTICE OF ANNEXATION
FOR
DIAMOND BAR VILLAGE
Exhibit "A-3"
NOTICE OF ANNEXATION
DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
THIS NOTICE OF ANNEXATION ("Notice of Annexation") is executed by the City of
Diamond Bar ("City") and Lewis -Diamond Bar, LLC, a Delaware limited liability company
("Developer"} this day of 1200 —
200, pursuant to and in accordance with
that certain Diamond Bar Village Development Agreement between the City of Diamond Bar and
Developer approved July 29, 2004 (Ordinance 04(2004) (the "Development Agreement") -
RECITALS
A. Developer is the owner of that certain real property located in the City of Diamond Bar,
County of Los Angeles, State of California, more particularly described and set forth in
Exhibit "A" attached hereto and incorporated herein by this reference (the "Annexable
Property").
B. Section 1:1.22 of Development Agreement requires that Developer annex the Annexable
Property into the Development Agreement within thirty (30) days after its acquisition of title
to the Annexable Property.
NOW, THEREFORE, in accordance with the foregoing recitals and pursuant to
Section 1. 1.22 of the Development Agreement, City and Developer agree as follows: :
ARTICLE 1
ANNEXATION
1.1 Annexation of Annexable Proe . City and Developer hereby declare that the Annexable
Property is annexed to and made part of the Property already subject to the Development
Agreement. This Notice of Annexation constitutes a notice of annexation as described in
Section 1. 1.20 of the Development Agreement. By virtue of such annexation, the
Annexation Property is and shall be part of the Property and subject to each and all of the
terms and conditions of the Development Agreement.
ARTICLE 2
GENERAL PROVISIONS
2.1 Amendment. This Notice of Annexation may be amended only in accordance with the
provisions of the Development Agreement.
2.2 Inurement. This Notice of Annexation, and each of the covenants, conditions, restrictions,
reservations, easements, liens and charges set forth in the Development Agreement, shall run
with the Annexable Property and shall inure to the benefit of and be binding upon Developer
and its successors -in -interest to the Annexable Property, for such duration and according to
such terms and provisions as set forth in the Development Agreement.
2.3 Defined Terms. Unless otherwise defined herein, all capitalized words and phrases used in
Exhibit "A-3"
Assignment / Notice of Annexation
Page 2
this Notice of Annexation shall have the same meanings given them in the Development
Agreement.
IN WITNESS WHEREOF, the City and Developer have executed this Notice of
Annexation as of the date first above written to be effective upon its recordation in the Official
Records of Los Angeles County, California.
"CITY"
CITY OF DIAMOND BAR
By:
Name:
Title:
"DEVELOPER"
LEWIS-DIAMOND BAR, LLC,
a Delaware limited liability company
By: LEWIS OPERATING CORP.,
a California corporation
0
Name:
Title:
Exhibit "A-3"
STATE OF CALIFORNIA )
)Ss.
COUNTY OF )
On before me, , a Notary
Public in and for said county and state, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
STATE OF CALIFORNIA }
) ss.
COUNTY OF
On before me, , a Notary
Public in and for said county and state, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person
whose name is subscribed to the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature
Exhibit "A-3"
ANNEXABLE PROPERTY
Exhibit "A-3"
EXHIBIT "B"
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Map of Specific Plan Area
Exhibit "B"
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EXHIBIT "B"
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Map of Specific Plan Area
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EXHIBIT "C"
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Current Development Approvals
General Plan Amendment No. 2004-01
Zone Change No. 2004-02
Diamond Bar Village Specific Plan No. 200401
Addendum to Medical Plaza Final Environmental
Impact Report, SCH No. 91121027 and
Diamond Bar Economic Revitalization Area
Final Environmental Impact Report,
SCH 96111047
Development Agreement No. 200401
Exhibit "C"
Resolution No. 2004-36
Ordinance No. 02(2004)
Ordinance No. 03(2004)
Resolution No. 2004-35
Ordinance No. 04(2004)
EXHIBIT "D"
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Existing Land Use Regulations
1. City of Diamond Bar, Development Code Adopted November 3, 1998.
2. City of Diamond Bar, General Plan Adopted July 25,1995.
Exhibit "D"
EXHIBIT "E"
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Grand Avenue Improvements
The proposed Grand Avenue Beautification/Betterment Project consists of
modifications/improvements to the existing center median islands, architectural treatment and
aesthetic enhancement to the roadway and intersections. The center median modifications will
include reconstruction of curbs for proper channelization of traffic, replacement of existing irrigation
systems, landscape, hardscape, planting, and concrete improvements. Included in this
Beautification/Betterment Project will be traffic safety enhancements such as street widening in the
vicinity of Golden Springs Drive, installation and/or modificabon.of signals, street lights, signal timing
synchronization, striping, drainage improvements and other streetscape improvements
Description and Construction Schedule
Start of Construction - April 2005.
Completion of construction — March 2006
Exhibit "E"
EXHIBIT "F-1"
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Commercial Component Description
Exhibit 7- "
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EXHIBIT "F-1
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT" CL 0
Commercial Component Description
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EXHIBIT "F 2"
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Letter of Credit Form
FINANCIAL INSTITUTION NAME
ADDRESS
Contact Phone:
Email:
IRREVOCABLE STANDBY LETTER OF CREDIT
nenencia Letter of Credit No.
City of Diamond Bar
21825 Copley Drive Date:
Diamond Bar, CA 91765
Ladies and Gentlemen:
2004
At the request and for the account of Lewis -Diamond Bar, LLC, a Delaware limited liability
company, 1156 North Mountain Avenue, Upland, California 91786, we hereby establish our
Irrevocable Letter of Credit in favor of the City of Diamond Bar in the amount of Two Million and
001 100 united States Dollars (US $2,000,000.00) available with us at our above office by payment of
your draft(s ) drawn on us at sight accompanied by your signed and dated statement worded pursuant
to either A or B below:
A. "The undersigned, an authorized representative of the City of Diamond Bar, hereby
certifies that:
1. Lewis -Diamond Bar, LLC, a Delaware limited liability company, has failed to
timely perform its obligations under Section 4.5.1 of that certain.Diamond Bar Village Development
Agreement (the 'Development Agreement") dated , 2004, by and between
the City of Diamond Bar, a municipal corporation of the State of California ('Beneficiary"), and
Lewis -Diamond Bar, LLC, a Delaware limited liability company ("Lewis"), with respect to the
development of the Commercial Component as defined in the Development Agreement; and
2. None of the conditions in Section 4.5.2 of the Development Agreement apply;
and
3. Written notice of default and intent to draw on this Letter of Credit was
delivered by Beneficiary to Lewis thirty (30) days prior to the date of this request to draw on the -
Letter of Credit; and therefore,
Exhibit "F-2"
4. Pursuant to Section 4.5.1 of the Development Agreement, a monthly draw in the
Amount of $41,666.00 is due and payable to Beneficiary on —.200—
and
200_and on the same day of each month thereafter until written notice that Lewis is not in default is
executed by Beneficiary and delivered to us; or
B. "The undersigned, an authorized representative of the City of Diamond Bar, hereby
certifies that:
1. Lewis -Diamond Bar, LLC, a Delaware limited liability company, has failed to
meet its obligations under Section 445 of that certain Development Agreement for the (the
"Development Agreement") dated , 2004, by and between the City of
Diamond Bar, a municipal corporation of the State of California ('Beneficiary"), and Lewis -
Diamond Bar, LLC, a Delaware limited liability company ("Lewis"), because [FINANCIAL
INSTITUTION NAME] delivered written notice not to extend the Letter of Credit and Lewis failed
to deliver a replacement Letter of Credit or to extend terra of this Letter of Credit at least ten (10)
days before expiration of this Letter of Credit; and therefore,
2. Pursuant to Section 4.5.1 of the Development Agreement, the Amount of
S is due and payable to Beneficiary."
Each draft must be accompanied by the original of this Letter of Credit for our
endorsement on this Letter of Credit in the amount of our payment on such draft.
Each draft drawn hereunder must be marked "Drawn under [FINANCIAL
INSTITUTION NAME] Letter of Credit No. , dated , 20(}4".
This Letter of Credit expires at our above office on ,
2005 but shall be automatically extended, without written amendment, first to
2006, then to , 2007, and then to, but not beyond ,2008 unless we
have sent written notice to you at your above address by registered mail or express courier that we
elect not to extend this Letter of Credit beyond the date specified in such notice, which date will be
, 2005, or , 2006, or 2007and
be at least thirty (30) calendar days after the date we send you such notice.
Partial drawings are permitted (more than one draft may be drawn and presented
under the Letter of Credit).
The aggregate amount of all drafts presented to us under and in compliance with the
terms of this Letter of Credit on or before 2005, or the expiration date as
extended, may not exceed $2,000,000.00.
This Letter of Credit is subject to the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500.
Exhibit "F-2"
We hereby engage with you that all drafts drawn under and in compliance with the
terms of this Credit will be duly honored by us if drawn and presented for payment at our office on or
before the expiration date as specified herein.
FINANCIAL INSTITUTION NAME
Name:
Title:
Exhibit "F-2"
SCHEDULEI
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Brookfield
Home Depot, Lowes, Target
List of Pre -Approved Developers
Schedule i
SCHEDULE2
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Entitlement Processing Schedule
To be determined
Schedule 2
SCHEDULE3
TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT
Project Impact Fees
FEE DESCRIPTION AMOUNT TIME OF PAYMENT
City Traffic Fee [To be Determined per Section 42,11 Residential — prior to each certificate of
occupancy
Commercial — prior to each certificate of
occupancy
Quimby Fee $2,175 per DU Prior to each certificate of occupancy
Schedule 3