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HomeMy WebLinkAbout09/12/2006PLANNING "`F Copy q111 iipi�i 11 7:00 P.M. South Coast Air Quality Management District Government Center Building - Auditorium 21865 Copley Drive Diamond Bar, CA Copies of staff reports or other written documentation relating to agenda items are on file in the Planning Division of the Dept. of Community & Development Services, located at 21825 Copley Drive, and are available for public inspection. If you have questions regarding an agenda item, please call (909) 839-7030 during regular business hours. In an effort to comply with the requirements of Title 11 of the Americans with Disabilities Act of 1990, the City of Diamond Bar requires that any person in need of any type of special equipment, assistance or accommodation (s) in order to communicate at a City public meeting must inform the Department of Community & Development Services at (909) 839-7030 a minimum of 72 hours prior to the scheduled meeting. Please refrain from smoking, eating or The City of Diamond Bar uses recycled paper drinking in the Auditorium and encourages you to do the same Vice Chairman Steve Nelson Commissioner Kwang Ho Lee Commissioner Tony Torng Commissioner Osman Wei Copies of staff reports or other written documentation relating to agenda items are on file in the Planning Division of the Dept. of Community & Development Services, located at 21825 Copley Drive, and are available for public inspection. If you have questions regarding an agenda item, please call (909) 839-7030 during regular business hours. In an effort to comply with the requirements of Title 11 of the Americans with Disabilities Act of 1990, the City of Diamond Bar requires that any person in need of any type of special equipment, assistance or accommodation (s) in order to communicate at a City public meeting must inform the Department of Community & Development Services at (909) 839-7030 a minimum of 72 hours prior to the scheduled meeting. Please refrain from smoking, eating or The City of Diamond Bar uses recycled paper drinking in the Auditorium and encourages you to do the same City of Diamond Bar Planning Commission MEETING RULES PUBLIC INPUT The meetings of the Diamond Bar Planning Commission are open to the public. A member of the public may address the Commission on the subject of one or more agenda items and/or other items of which are within the subject matter jurisdiction of the Diamond Bar Planning Commission. A request to address the Commission should be submitted in writing at the public hearing, to the Secretary of the Commission. As a general rule, the opportunity for public comments will take place at the discretion of the Chair. However, in order to facilitate the meeting, persons who are interested parties for an item may be requested to give their presentation at the time the item is called on the calendar. The Chair may limit individual public input to five minutes on any item; or the Chair may limit the total amount of time allocated for public testimony based on the number of people requesting to speak and the business of the Commission. Individuals are requested to conduct themselves in a professional and businesslike manner. Comments and questions are welcome so that all points of view are considered prior to the Commission making recommendations to the staff and City Council. In accordance with State Law (Brown Act), all matters to be acted on by the Commission must be posted at least 72 hours prior to the Commission meeting. In case of emergency or when a subject matter arises subsequent to the posting of the agenda, upon making certain findings, the Commission may act on item that is not on the posted agenda. INFORMATION RELATING TO AGENDAS AND ACTIONS OF THE COMMISSION Agendas for Diamond Bar Planning Commission meetings are prepared by the Planning Division of the Community and Development Services Department. Agendas are available 72 hours prior to the meeting at City Hall and the public library, and may be accessed by personal computer at the number below. Every meeting of the Planning Commission is recorded on cassette tapes and duplicate tapes are available for a nominal charge. ADA REQUIREMENTS A cordless microphone is available for those persons with mobility impairments who cannot access the public speaking area. The service of the cordless microphone and sign language interpreter services are available by giving notice at least three business days in advance of the meeting. Please telephone (909) 839-7030 between 7:30 a.m. and 5:30 p.m., Monday through Thursday, and 7:30 a.m. and 4:30 p.m., Friday. HELPFUL PHONE NUMBERS Copies of Agenda, Rules of the Commission, Cassette Tapes of Meetings (909) 839-7030 General Agendas (909) 839-7030 email: info(a),ci.diamond-bar.ca.us CITY OF DIAMOND BAR PLANNING COMMISSION Tuesday, September 12, 2006 PLEDGE • AL.LEGIANCI Next Resolution No. 2006-37 1. ROLL CALL: COMMISSIONERS: Vice Chairman Steve Nelson, Kwang Ho Lee, Tony Torng, Osman Wei 2. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: This is the time and place for the general public to address the members of the Planning Commission on any item that is within their jurisdiction, allowing the public an opportunity to speak on non-public hearing and non -agenda items. Please complete a SDeaker's Card for the recording___ Secretary (Completion of this form is voluntary. There is a five-minute maximum time limit when addressing the Planning Commission. 3. APPROVAL OF AGENDA: . Chairman 4. CONSENT CALENDAR: The following items listed on the consent calendar are considered routine and are approved by a single motion. Consent calendar items may be removed from the agenda by request of the Commission only. 4.1 Minutes of Regular Meeting: August 22, 2006. 5. OLD BUSINESS" None. 6. NEW BUSINESS: None. 7. PUBLIC HEARING(S): 7.1 Amendment No. 2 to Development Agreement 2004-01 - Between the City of Diamond Bar and Lewis -Diamond Bar, LLC for the Diamond Bar Village Specific Plan, a 71 -acre development consisting of 180 multi -family residential units and up to 270,000 square feet of commercial, retail and institutional uses. The proposed amendment is to consider proposed changes to the financial terms of the contract and the minor changes to the schedule of performance. Project Address: South of Grand Avenue, east of Golden Springs Drive Lli :1 • *kv, 1 -.1 :4 - 11, 9 10 PAGE 2 PLANNING COMMIS,SIOg Property Owner/ Lewis -Diamond Bar, LLC Applicant: 1156 N. Mountain Ave Upland, CA 91785 Environmental Determination: On June 29, 2004, the City Council approved an Addendum to the previously certified Final Environmental Impact Reports, SCH No. 91121027 and No. 96111047 for the related General Plan, Zone Change, and Diamond Bar Village Specific Plan. The proposed amendment to the Development Agreement makes changes to the financial terms and the schedule of performance, which is covered in the - previous addendum, therefore, additional CEQA review is not required. Recommendation: Staff recommends that the Planning Commission adopt a resolution recommending City Council approval of Amendment No. 2 to Development Agreement 2004-01. PLANNING COMMISSION COMMENTS / INFORMATIONAL ITEMS: STAFF COMMENTS / INFORMATIONAL ITEMS: 9.1 Public Hearing dates for future projects. SCHEDULE OF FUTURE EVENTS: TRAFFIC AND TRANSPORTATION COMMISSION MEETING: CITY COUNCIL MEETING: PLANNING COMMISSION MEETING: PARKS AND RECREATION COMMISSION MEETING: 11. ADJOURNMENT: Thursday, September.14, 2006 — 7:00 p.m. SCAQMD/Government Center Hearing Board Room — 21865 Copley Drive Tuesday, September 19, 2006 - 6:30 p.m. SCAQMD/Government Center Auditorium 21865 Copley Drive Tuesday, September 26, 2006 — 7:00 p.m. SCAQMD/Government Center Auditorium 21865 Copley Drive Thursday, September 28, 2006 — 7:00 p.m. SCAQMD/Government Center Hearing Board Room — 21865 Copley Drive MINUTES OF THE CITY OF DIAMOND BAR REGULAR MEETING OF THE PLANNING COMMISSION AUGUST 22, 2006 wffxft�;�� Vice Chairman Nelson called the meeting to order at 7:00 p.m. in the South Coast Air Quality Management District/Government Center Auditorium, 21865 Copley Drive, Diamond Bar, California 91765. PLEDGE OF ALLEGIANCE: Commissioner Lee led the Pledge of Allegiance. 1. ROLL CALL: Present: Commissioners Kwang Ho Lee, Tony Tomg, Osman Wei and Vice -Chairman Steve Nelson. Also present: Nancy Fong, Community Development Director; Ann Lungu, Associate Planner; and Stella Marquez, Senior Administrative Assistant. 2. MATTERS FROM THE AUDIENCE/PUBLIC COMMENTS: None Offered. 3. APPROVAL OF AGENDA: As Presented. 4. CONSENT CALENDAR: 4.1 . Minutes of the Regular Meetingof August 8, 2006 C/Lee moved, C[Wei seconded to approve the minutes of the regular meeting of August 8, 2006. Motion carried by the following Roll Call vote: AYES: NOES: ABSENT: 5. OLD BUSINESS: 6. NEW BUSINESS: COMMISSIONERS: COMMISSIONERS: COMMISSIONERS: None None Lee, Torng, Wei, VC/Nelson None None AUGUST 22, 2006 7. PUBLIC HEARINGS: IM110 7W PAGE 2 PLANNING COMMISSION 7.1 Development Review No. 2006- 30 and Minor Conditional Use Permit No. 2006-10. In accordance with Code Sections 22.48, 22.30 and 22.56 of the Diamond Bar Municipal Code, the applicant requested approval to revise the one-story front elevation with stone architectural details and a 323 square foot, two- story hobby room addition to the existing 1,949 square foot, two-story, single family residence plus three car garage. The request included: Modifications of a garage bay for the interior stairs and storage; modification of the existing porch to a covered porch with stone columns to support the two-story addition; and, modification of the existing three car driveway to two car driveway with a Minor Conditional Use Permit approval to allow for greater width at the garage entry. Project Address: 20925 Pasco Court Diamond Bar, CA 91765 Property Owner/ V.W. Torn and Lisa C. Bode Applicant: 20925 Pasco Court Diamond Bar, CA 91765 AssocP/Lungu presented staff's report and recommended Planning Commission approval of Development Review No. 2006-30 and Minor Conditional Use Permit 2006-10, Findings of Fact, and conditions of approval as listed within the resolution. VC/Nelson opened the public hearing. Jonathon Park, architect, explained the project. He responded to C[Torng that he was very pleased with City staffs response during this process. VC/Nelson closed the public hearing. C/Torng moved, C/Lee seconded to approve Development Review No. 2006-30 and Minor Conditional Use Permit 2006-10. Motion carried by the following Roll Call vote: AUGUST 22, 2006 �1- a PAGE 3 PLANNING COMMISSION AYES: COMMISSIONERS: Lee, Torng, Wei, VC/Nelson NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None PUBLIC HEARINGS: None PLANNING COMMISSIONER COMMENTS/INFORMATIONAL ITEMS: C/Torng asked for an update regarding the matter of Art in Public Places. CDD/Fong responded that at the last meeting she reported that a subcommittee was created to meet and discuss the matter. She explained that under Staff Comments/information Items tonight she was prepared to invite the subcommittee to meet at 6:00 p.m. on September 12 prior to the regular Planning Commission meeting. CDD/Fong responded to C/Torng that she would advise him about whether he could participate in discussions regarding the JCC project prior to the public hearing. C/Lee and C/Wei voiced their feelings and concerns about Art in Public Places and both agreed that each project should be considered on its own merits rather than limiting or imposing one percent of the project, for example. VC/Nelson strongly urged his colleagues to study the Draft EIR for the JCC Project when it became available, to list all of their questions and set a meeting with CDD/Fong to get answers in order to be certain about the facts rather than respond emotionally to the document. 10. STAFF COMM ENTS11 N FORMATION ITEMS. 10.1 Public Hearing dates for future projects. CDD/Fong reported that at this time the September 12 agenda contains only one public hearing item, a Development Agreement Amendment for the Target project. She stated that the Art in Public Places subcommittee was scheduled to meet at 6:00 p.m. on September 12 prior to the regular Planning Commission meeting. CDD/Fong reported that the JCC Environmental Impact Report would be available for public review on Friday, August 25. She recommended that the Planning Commission hold a study session following the regular September 12 Planning Commission meeting to receive information on the basics of an EIR document. A AUGUST 22, 2006 PAGE 4 PLANNING COMMISSION .JCC project community meeting is scheduled for September 20 and in order to avoid a quorum under the Brown Act, no more than two commissioners could be in attendance at the meeting. 11. SCHEDULE OF FUTURE EVENTS: As listed in tonight's agenda. ADJOURNMENT: With no further business before the Planning Commission, Vice Chairman Nelson adjourned the meeting at 7:32 p.m. Respectfully Submitted, Nancy Fong Community Development Director Attest: Steve Nelson, Vice Chairman CIT PLANNING COMMISSIO AGENDA REP • 21825 COPLEY DRIVE — DIAMOND BAR, CA: 91765 — TEL (909) 839-7030 — FAX (909) 861-3117 — www.UityofDiamondBar.com AGENDA ITEM NUMBER: 7.1 MEETING DATE: September 12, 2006 CASE/FILE NUMBER: Amendment No. 2 to Development Agreement No. 2004-01 PROJECT LOCATION: Southeast corner of Grand Avenue and Golden Springs Drive APPLICATION REQUEST: Amendment to the existing Development Agreement No. 2004-01 to consider proposed changes to the schedule of payment of the traffic fees for the commercial portion of the project. PROPERTY OWNERS: Target Corporation 1000 Nicollet Mail - Minneapolis, MN 55403 and Lewis - Diamond Bar, LLC 1156 N. Mountain Avenue Upland, CA 91785 APPLICANT: City of Diamond Bar STAFF RECOMENDATION: Adopt resolution recommending City Council approval of Amendment No. 2 to Development Agreement 2004-01 In June 2004, the City Council approved Development Agreement No. 2004-01 (the Agreement), which acted to guide future development of the 70 -acre vacant property located at the southeast corner of Grand Avenue and Golden Springs Drive. An amendment to the document was subsequently approved by the City Council on July 5, 2005 -revising the schedule of performance and establishing traffic fees to be paid by the developer. The Agreement and all subsequent amendments are processed pursuant to Government Code Section 65864, et seq. and Chapter 22.62 of the City's Development Code. Lewis - Diamond Bar, LLC, the developer, is proposing a second amendment to the Agreement to the traffic fees and payment schedule for the commercial portion of the project. The Agreement between the City of Diamond Bar and Lewis — Diamond Bar, LLC (the Developer) established the framework that permitted future. construction upon the site with a mixture of commercial retail, institutional, high density residential, office business park, and open space land uses; and adopted the Diamond Bar Village Specific Plan. The project involved a multi -phased land development project of Lewis -Diamond Bar, LLC and a substantial monetary investment. The Agreement reduced The Developer's' risk by locking in the development approvals and related project fees for a period of time. This assured The Developer that future City development policy changes or regulation changes would not affect the approved project. In exchange, the City receives assurance that the project will be developed as proposed by the Developer. After approval of the Agreement, the City and the developer worked towards -agreeing on the type of traffic improvements necessary to mitigate project impacts and estimating the cost of the improvements. With the approval of Amendment no. 1 to the Agreement the amount of fair share traffic fees to be paid by the developer and the schedule of payment to the City of the fees were established. Approximately $233,604.50 of the traffic fees were allocated to the residential portion of the project and $964,323.50 of the traffic fees were allocated to the commercial portion. The traffic fees for the commercial anchor were required to be paid before issuance of certificates of occupancy. Both parties to the Agreement, Lewis — Diamond Bar, LLC and the City, have worked diligently to implement the terms of the Agreement. In .2005, entitlements were approved for the 180 -unit residential condominium project (Brookfield) and for construction of Target, the major commercial anchor. Currently, the Brook -field project has been substantially constructed and several Certificates of Occupancy has been issued. Construction of the Target is also nearing completion and temporary Certificates of Occupancy were issued in August 2006. Target is expected to open to the public on October 8, 2006. K The developer is now requesting a second amendment to the Agreement to defer payment of a portion of the commercial traffic fees to when the two secondary commercial pads are developed. The developer is requesting to make the following. change to the Agreement: 1. Revise Section 4.2.1, City Traffic Fee, as follows: DEVELOPER and CITY agree that the traffic mitigation fees for project contributions and "fair share" costs for, area -wide impacts and the, . traffic mitigation costs allocable to the Property and Annexable Property as set forth on Schedule 3 and the timing for payment are as follows: $304,912 Residential — paid $893,016 Commercial: a) $351,565 Traffic mitigation fee — paid b) $541,451 Area -wide impact fee: 1. $406,088.26 Prior to the issuance of the certificate of occupancy for the Commercial Anchor 2. $67,681.37 Prior to the issuance of building permits for the development of Pad 2 (Parcel 2 of Tentative Parcel Map No. 061702) 3. $67,681.37 Prior to the issuance of building permits for the development of Pad 3 (Parcel 3 of Tentative Parcel Map No. 061702) Amendment no. 1 of the Agreement required the developer to pay all of the commercial traffic fees before the issuance of a certificate of occupancy for Target. To date, the developer has paid $351,565 of the traffic mitigation fees for the commercial portion of the project. The proposed amendment would allow the developer to pay 75% of the remaining traffic fees for area -wide impacts before the certificate of occupancy is issued for Target and to defer 25% of the area -wide traffic fees to prior to the development of the two smaller commercial pads. ' ENVIRONMENTAL ASSESSMENT: On June 29, 2004, the City Council approved an Addendum to the previously certified Final Environmental Impact Reports SCH No. 91121027 and No. 96111047 3 for the related General Plan, Zone Change, Development Agreement and Diamond Village Specific. The proposed amendment to the Agreement makes no changes to the land use plan for the 70 -acre site. The amendments only pertain to the schedule of performance. Therefore, additional CEQA review is not required. Public Notice for the City Council public hearing was published in the Inland Valley Bulletin and the San Gabriel Valley Tribune on August 25, 2006. Public Notices were mailed to 'all property owners within a 700 -foot radius of the project site on August 24, 2006. Prepared by: Sandra Campbell Contract Senior Planner ffIX—M =M - I Nancy Fong, AICP Community Development Director 1. Draft Planning. Commission Resolution 2. Exhibit "A" - Draft Amendment No. 2 to Development Agreement No. 2004-01 3. Amendment No. 1 to Development Agreement No. 2004-01 4. Development Agreement No. 2004-01 M PLANNING COMMISSION RESOLUTION NO. 2006- xx A. RECITALS The applicant, Lewis -Diamond Bar, LLC (Lewis), acting as a property owner, has filed an application for Amendment No. 2 to Development Agreement No. 2004-01 regarding development of a site comprised of approximately 70 -acres generally located at the southeast corner of Grand Avenue, and Golden Springs Drive and identified as Assessors Parcel Numbers - 8293-045-004, 8293-045-005, 8293-045-006, 8293-045-007, 8293-045-008 and 8293-045-009 Hereinafter in this Resolution, the subject application shall be referred to as the "Application," and the proposed development as the "project.". 2. The applicant has specifically requested the City to approve an Amendment to Development Agreement No. 2004-01 concerning schedule for the payment of traffic fees for the development of the commercial component of the Diamond Bar Village on the Property. 3. On August 25, 2006, notification of the public hearing for this application was provided in the San Gabriel Valley Tribune and Inland Valley Daily Bulletin newspapers. Furthermore, public hearing notices were mailed to approximately 552 property owners of record within a 700 -foot radius of the project. Furthermore, the project site was posted with a required display board and public notices were posted in three public places. 4. The Community Development Department has determined that the proposed Amendment No. 2 to the Development Agreement represents a consistent, logical, appropriate and rational implementing tool that furthers the goals and objectives of the City General Plan and it is in the public interest. 5. On September 12, 2006, the Planning Commission of the City of Diamond . Bar conducted and concluded a public hearing on the Application. 6. The documents and other materials constituting the administrative record of the proceedings upon which the City's decision is based are located at the City of Diamond Bar, Community Development Department, Planning Division, 21825 Copley Drive, Diamond -Bar, CA 91765. B. RESOLUTION NOW, THEREFORE, it is found, determined and resolved by the Planning Commission of the City of Diamond Bar as follows: 1. This Planning Commission hereby specifically finds that all of the facts set forth in the Recitals, Part I of this Resolution are true and correct. 2. Based on the findings and conclusions set forth herein, the Planning Commission hereby finds and recommends that the City Council approve Amendment No. 2 to Development Agreement No. 2004-01 as outlined within Exhibit "A" attached to this Resolution. 3. California Environmental Quality Act (CEQA): The Addendum for Diamond Bar Village, which is an addendum to the Medical Plaza and Revitalization EIRs, considers potential environmental impacts of Diamond Bar Village and the Specific Plan and meets all requirements for compliance with CEQA. 4. The Planning Commission does hereby recommend to the City Council approval of the proposed Amendment No. 2 to Development Agreement No. 2004-01, with finalization and execution by the City Manager, based on the following findings, as required by 22.62.030(e) of the Municipal Code and in conformance with California Government Code Section 65864 et seq.: a. Amendment No. 2 to Development Agreement would be in the best interest of the City. b. Amendment No. 2 to Development Agreement No. 2004-01 implements the proposed Diamond Bar Village project and. will provide certainty to the City and the Applicant regarding the development time table, impact fees, applicable ordinances, overall development standards and similar matters. Because of this, the Agreement is in the best interest of the City and its residents. 4 C. The amendment to the Development Agreement is consistent with the General Plan, any applicable Specific Plan and the Development Code. The subject of the amendment to Development Agreement 2004-01 is consistent with the General Plan and meets all applicable standards of the Development Code. The administrative record and findings of this Resolution demonstrate conformance with City requirements. d. Amendment No. 2 to Development Agreement would promote the public interest and welfare of the City. Development Agreement No. 2004-01 implements this development plan and thus promotes the public interest and welfare. e. The proposed amendment. to the Development Agreement, prepared in accordance with Government Code Section 65864 et seq., and Chapter 22.62 of the Development Code establishes a mutually beneficial agreement between the City and the applicant setting forth obligations and benefits to the City and the developer. 5. The Planning Commission does hereby recommend to the City Council that Amendment No. 2 to Development Agreement No. 2004-01 attached as Exhibit A and incorporated herein by reference. The Planning Commission shall: (1) Certify to the adoption of this Resolution; and (2) Forthwith transmit a certified copy of this Resolution to the City Council forthwith. APPROVED AND ADOPTED THIS 12TH DAY OF SEPTEMBER, 2006, BY THE PLANNING COMMISSION OF THE CITY OF DIAMOND BAR. LO -M Steve Nelson, Vice Chairman 3 I, Nancy Fong, Planning Commission Secretary, do hereby certify that the foregoing Resolution was duly introduced, passed, and adopted by the Planning Commission of the City of Diamond Bar, at a regular meeting of the Planning Commission held on the 12th day of September, 2006, by the following vote: AYES,_Commissioners: NOES: Commissioners: ABSENT: Commissioners: ABSTAIN: Commissioners: ATTEST: Nancy Fong, Secretary 2 Recorded at request of Draft September, 2006 Clerk, City Council City of Diamond Bar When recorded return to City of Diamond Bar 21825 Copley Drive Diamond Bax, CA 91765 Attention: City Clerk 4:11: v Exempt from Filing Fees Gov. Code section 6103 DIAMOND BAR VILLAGE AM[ENDM[ENT NO. 2 TO DEVELOPMENT AGREEMENT NO.. 2004-01 between CITY OF DL"10ND BAR a California municipal corporation =I LEWIS-DIAMOND BAR, LLC, a Delaware limited liability company . ("Developer") AMEENDMEENT NO. 2. TO DEVELOPMENT AGREEMENT (""endment") This Amendment No. 2 is dated this _ day of 1 2006 for reference purposes and amends that certain Development Agreement effective August 7, 2004, (the "'Development Agreement") by and between the City of Diamond Bar (hereinafter "CITY"), and Lewis -Diamond- Bar, LLC, a Delaware limited liability company (hereinafter "DEVELOPER"), - as amended by Amendment No. 1 on July 22, 2005. All capitalized terms shall have the meanings given those terms in the Development Agreement unless otherwise defined herein. RECITALS WHEREAS, DEVELOPER has requested CITY to amend the Development Agreement and the CITY has conducted all proceedings required to amend the Development Agreement in accordance with the DA Laws and all other rules and regulations of CITY; and WHEREAS, the terms and conditions of this Amendment have undergone review by CITY and the City Council and have been found to be fair, just and reasonable; and WHEREAS, all actions taken and approvals given by CITY for this Amendment have been duly taken and approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters. 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 to amend the Development Agreement as follows: Section 4.2.1, City Traffic Fee, and Schedule 3, are amended as follows: DEVELOPER and CITY agree that the "fair share" cost of the traffic improvements allocable to the Property and Annexable Property as set forth on Schedule 3 and the timing for payment are: a. $304,912 Residential — prior to the issuance of the first certificate of occupancy b. $893,016 Commercial: i) $757,653.26 Prior to the issuance of the certificate of occupancy for the Commercial Anchor ($351,565 plus $406,088.26) ii) $67,681.37 Prior to the issuance of building permits for the development of Pad 2 (Parcel 2 of Tentative Parcel Map No. 061702) i—ii) $67,681.37 Prior to the issuance of building - permits for the development of Pad 3 (Parcel 3 of Tentative Parcel Map No. 061702) 2. Except as amended above, the Development Agreement effective August 7, 2004, as amended by Amendment No 1, effective July 22, 2005, shall remain in fall force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below. "DEVELOPER" LEWIS-DIAMOND BAR, LLC a Delaware limited liability. company By: LEWIS INVESTMENT COMPANY, LLC, a California limited liability company Its Managing Member Dated: By: LEWIS OPERATING CORP., a California corporation — sole manager By: Name: Title: "CITY" Dated: . By: Name: Title: 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 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 Hipp- Fees Gov. Code section 6103. DIAMOND AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT NO. 2004-1 between 4 CITY OF DIAMOND BAR f, a California municipal corporation and. T' LEEWIS-DIAM®ND BAH LLC, a Delaware limited liability company ("Developer") ACCOMMODATION - kECORDING AMENDMENT NO. 1 TO DEVELOPMENT AGREEMENT ("Amendment") This Amendment is dated this 19th day of July, 2005 for reference purposes and amends that certain Development Agreement effective August 7, 2004, (the "Development Agreement") by and between the City of Diamond Bar (hereinafter "CITY"), and Lewis -Diamond B ar, LLC, a Delaware limited liability company (hereinafter "DEVELOPER"). All capitalized terms shall have the meanings given those terms in the Development Agreement unless otherwise defined herein. WHEREAS, DEVELOPER has requested CITY to amend the Development Agreement and the CITY has conducted all proceedings required to amend the Development Agreement in accordance with the DA Laws and all other rules and regulations of CITY; and WHEREAS, the terms and conditions of this Amendment have undergone review by CITY and the City Council and have been found to be fair, Just and reasonable; and WHEREAS, all actions taken and approvals given by CITY for this Amendment have been duly taken and approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters. 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 to amend the Development Agreement as follows: 1. Section 4.2.1, City Traffic Fee, and Schedule 3, are amended as follows: DEVELOPER and CITY agree that the "fair share" cost of the traffic ' improvements allocable to the Property and Annexable Property as set forth on Schedule 3 and the timing for payment are: $233,604.50 Reside -- prior to the issuance of the first certificate of occupncy $964,323.50 Commercial -- prior to the issuance of the certificate of occupancy for the Commercial Anchor 2. Section 4.4.1, Residential Fees, is deleted and the following inserted in place thereof: 4.4.1 Residential Fees. DEVELOPER agrees to pay i to the CITY development agreement fees in the total amount of $2,000,000 at the issuance of certificates of occupancy for each DU in the Project as follows: $10,000 per DU for the first 60 DU's = $600,000 $11,000 per DU for the second 60 DUs = $660,000 $12,333 per DU for the final 60 DU's = $740,000 %71 VI VV If less than one hundred eighty (180) DU's are developed by DEVELOPER, the amount equal to the difference between $2,000,000 and the total amount of Residential Fees paid as of the date the final certificate of occupancy is issued by City fortheProject, shall be paid concurrent with City's issuance of that final certificate of occupancy. The City may use the Residential Fees for any purpose permitted by the City's Municipal Code and any other applicable laws. 3. Section 4.5, Commercial Fee, is amended by extending the dates (i) for commencement of construction of the Commercial Anchor from June 1, 2005 to September 1, 2005, and (ii) for opening of I the Commercial Anchor to the general public from April 2006 to October 2006. City agrees to cooperate with DEVELOPER, at no cost to City, to amend the Letter of Credit as necessary to provide for these extensions. 4. CITY acknowledges and agrees that in furtherance of Section 4.5 of the Development Agreement and consistent with the Development Plan for the Project, Target Corporation ("Target") filed its applications for Conditional Use Permit No. 2005-03 and Development Review No. 2005-16 (collectively the "Target Development Application") which Was approved by the CITY by Planning Commission Resolution No. 2005-18 on April 26, 2005 (the "Target Resolution"). CITY.further acknowledges that Target and DEVELOPER will be processing (i) a Boundary Line Adjustment in the form of Exhibit "A" to this 'Amendment to create the. final boundaries of the Annexable Property (as set forth in Exhibit "B" of the Development Agreement) and of the Commercial Component within the Annexable Property under Section 4.5 .1 of the Development Agreement, and (ii) a parcel Map to create the two (2) retail pads fronting Golden Springs Drive and the remainder parcel of the Commercial Component to be developed by Target as the Commercial Anchor all as identified in the Target Development Application (the "Parc ' el Map"). CITY agrees that no Development Exactions or Development Impact Fees other than those set forth in the Target Resolution or Development Agreement shall be imposed by CITY as conditions on the BLA or Parcel Map. CITY acknowledges that this covenant is material to the decision of Target to proceed with the acquisition and development of the Annexable Property and Commercial Component. 5. Except as amended above, the Agreement shall remain in full -force an . d effect. V1 V1 vv IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below. "DEVELOPER" LEWIS-DL&MOND BAR, LLC a Delaware limited liability company By: LEWIS INVESTMENT COMPANY, LLC-, a California limited liability company Its Managing Member Dated: July 22 2005 By: LEWIS- OPERATING COPU., a California corporation — s ole manager By: Name: John M. Goodman Title: Sr. 0 "CITY" CITY OF DIAMOND BAR Dated: July 27, 2005. B Exhibit A — Boundary Line Adjustmc V1 V1 VV STATE OF CALIFORNIA ) ss. COUNTY OF -51W On IJ LVY 9�, OO z• . jow-!�Vlrlr a Notary Public in and for said before me, !E I)Aj 6 "' county and state, personally appeared personally known to me --iq- the b-���- �-�) 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. EC NIN, A!J�OHNSON WITNESS. my hand and official seal. Commission# 1419983 K rte; g Notary Public - California San emar lno County Signature y Comm.CommExplres Jun 4, 2007? STATE OF CALIFORNIA ss. COUNTY OF40,g- V before me Op- and for said j - in On,, U allotary Public county and state, personally appeared personally known to me (or proved to, me on the Basi 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 upo I n behalf of which the person acted, executed the instrument. WITNESSm hand and official seal. Signature a_"" 0 ANNE CkIBBINS :%'qdmMlSsl0n.141107 Notary 1 Pubill . Ca!fforn County COMM. Expires Apr 26,2007P EXHIBIT "A" BOUNDARY LINE ADJUSTMENT PIDF created with pdfFactory trial version wwW.POTraciory-co 05 2138219 HW- createcl witn PaTt-aciory mai version WWW.PUI.IdULUIY.fUll UO2138212 I-- 5 1 123 1 H 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 ,,4 Exempt from Filing Fees Gov. Code section 6103 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, pu'rsuant to Section 65864, et seq. 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, I 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 o ' f 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 r 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 Exhdbit "A-2" and shown as a portion of Planning Area I 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 DUs 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 thestructures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public and private facilities related to the 3 05 1198312 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. C� 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 local 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 I (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; filinig 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 4 05 1198312 maps under the provisions of the Subdivision Map Act, Division 2 (corr-�mencing 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 I of Title 7 of the Gover-nment 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 Developm ent 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 developrhent and use of land, including, without limitatiorr, 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; t (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 5 05 1198312 512310 5 (e) the exercise of the power of eminent domain. 1. 1. 18 "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 -l" 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. 1.1.23 "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. Ekhibit "D" Existing Land Use Regulations. Exhibit "E" — Grand Avenue Improvements. Exhibit "F-1" — Commercial Component Description Exhibit "F-2" — Letter of Credit Form Schedule 1 — List of Pre -Approved Developers Schedule 2 — Entitlement Processing Schedule Schedule U r10JeCL Impact QV_,Zo Z 2, GENERAL PROVISIONS. 2.1 Binding Effect of Agreement. The Property is hereby made subject 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 Arinexable 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 Ahnexation 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 seq.), 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 assign -merit, 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,. trans fer6e or assignee expressly and unconditionally assumes all the duties and obligations of DEVELOPER under this Agreement. 7 0 U 0"' lin8312 Any sale, transfer or assignment not made in strict compliat-nce with the foregoing conditions shall constitute a default by DEVELOPER under this Agreemer-It. 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 P� urchaser, transferee or assignee until and unless such agreement is executed, and the CITY -apprcpves of such purchaser, transferee, or assignee, which approval shall not be unnecessarily wi-thheld 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 DEVEUQPER 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 AgreQment; DEVELOPER has provided CITY with the notice ce . axid 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 DUs and/or a developer of commercial/retail/office projects generally reco ize g'n. I d by the Southern California Building Industry Association as a quality, financially sound, developer, such as those developers listed in Schedule I 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 ten -ns and conditions of this Section. 2.4.4 Partial Release of Purchaser,_ Transferee or AsSHD'9e 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 I ot 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 e 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 condomi nium plan approved by the City as defined in Civil Code Section 135 1 (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 I fees set forth under Section 4 of this Agreement have been paid. g 2.5 Amendment or Cancellation of Agreement. 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 terminated 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 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 9 05 1198312 termination or with respect to any default in the performance of the provision s of this Agreement that has occurred prior to such termination or with respect to any obligations that -ire 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 (11) 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 prepaicl. , and addressed to the recipient named below; or (11i) on the date of delivery shown in the records o:fthe telegraph company after transmission by telegraph to the recipient named below. All noticeE-, 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 ELI 10 OD 1198312 512310 5 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 anytime, require subsequent notices to be given to another person or entity, whether a party or an officer or represenlC;atiVe 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 ill accordance with, and to the extent of, the Development Plan. The Project shall remain subj ect 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 aild 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 If 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 bytheSpecific 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 DEVEI-OpER , 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 of Camarillo (1984) 37 Cal.3d 11 () CIS- 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 other -wise 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. 512310 5 3.6 Reservations of Authority. 3.6.1 Limitations, Reservations and Exceptions. Notv,,,ithstanding any other provision of this Agreement, the following Subsequent Land Use Regula --tions shall apply to the development of the Property. (a) Processingfees and charges of every kind and nature . imposed by CITY to cover the estimated actual costs to CITY of processing applications for DeN.- elopment 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 a -Ind 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 Exactior, 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 resiclents of the Project or immediate comm. . unity. 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 other -wise, limiting the rate or tinning 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 13 nonresidential users (commercial or industrial) of real property in the CITY sirnilar to the DUs 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 Subsequent 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 limiting the foregoing, DEVELOPER acknowledges that nothing ill 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 coriceptual elevations and site plans included in the Specific Plan. 1 3.6.3 Modification or Suspension 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 'ment 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. 3.7Public 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 mariner 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 toconstructany 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 s ' uch 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 14 0,7 11983,12- 5123105 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 MN 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 Maps. 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 improvemdnts 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. P- 15 OD. 1198312 5123105 4.2.2 Time of Payment. 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 20.0 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 ent 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 maybe 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 Agreement 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 DUs $14,500 per DU for the final 50 DU's E 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 bU'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 Credit shall be in the form of Exhibit "F-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 other -wise be in material 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 so ' le 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 95 1198312 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 theAgreement 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 areport 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 Ending 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 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: mpwaw� 5.12310 5 (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 Hearing 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 0 * f 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 seq., 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. As a 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. 5/2310 5 6.2 Indemnification. As a further material part of this De—velopment Agreement, DEVELOPER agrees to indemnify, defend and hold harmless the CIT'?-, its officials, officers, employees, consultants and agents from any and all claims, liability, loss, c® sts, damages, expenses, fines and penalties, of whatever type or nature, including all costs of se d f d attorneys fees defense and I arising from any alleged failure of the DEVELOPER or DEVELOPER's col-Atractors to comply with the prevailing wage laws of the State of California. If the CITY or any o f the other indemnified parties is named as a party in any dispute arising from the failuret. of DEVELOPER -or DEVELOPER's contractors to pay prevailing wages, DEVELOPER agrees khat the CITY and those other indemnified parties may appoint their own independent counsel, and I:DEVELOPER agrees to pay all attorneys' fees and defense costs of the CITY and the other indemnl fed 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 DEV -ELOPER -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 Developmerif 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 implementatiorl of this Agreement has begun. After such implementation, DEVELOPER may be foreclosed from other choices it mayhave had to utilize the Property or portions thereof. DEVELOPER has invested significant time and 20 05 11nU8312 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 tlie. 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 ia 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. Subj ect 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 corn ' mence 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. 8. 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 ajudicial determination 21 A 5, -,.1 C1 n ft . , 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, actioia 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 approv;al 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 coop prate 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 bold 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 of Rights. With respect to Sections 8.2, 8.3 and 8.4 herein, CITY reserves the right to either (1) approve the attorneys) that DEVELOPER selects, hires or otherwise engages to defend CITY'hereunder, which approval shall not be unreasonably withheld, or (2) condu'ct 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. .2 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 lira- it 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 e securing financing with respect to the Property. CITY acknowledges that Mortgagees provid-trig such financing may require certain Agreement interpretations and modifications and agrees up©n request,.ftom 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 ©f 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 encullbering the Property, or any part thereof, which Mortgagee, has submitted a request in wilting 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 p . art 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 Agreemerit. 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 4:) e t e e n 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 conditiot, ' 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 Agreetlaent. 23 n * 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 C)r 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 deter -mined 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 6f 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. e 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 . 05 1198312 10.10 Force Majeure. Neither party shall be deemed to be in defauTL -t 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 regulat:ions, court actions (such as restraining orders or injunctions), or other causes beyond the party's cOrx-trol. 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 may be extended by the written agreement of the Parti�s 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 mutl1al covenants and also constitute conditions to the concurrent or subsequent perfon-nance by the par-ty benefitted thereby of the covenants to be performed hereunder by such benefitted party. 10.12 Successors in Interest. The burdens of this Agreement shall b C--. binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the pat -ties to this Agreement. All provisions of this Agreement shall. be enforceable as equitable servitudes and 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 may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all Of the parties had executed the same instrument. 10.14 Jurisdiction and Venue. Any action at law or inequity arising Under this Agreemenfor brought by aparty hereto for the purpose of enforcing, construing or detcrmiining 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 05 1100". 512310 5 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 b e 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 n of 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), upor-1its 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 suclj 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 maybe 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 has/have 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. 26 X198,31 n' IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below. "DEVELOPER" LEWIS-DIAMOND BAR, LLC a Delaware limited liability company By: LEWIS OPTINGCORP., a Califo c oration — sole *an ager Dated: BY: Name: David R. L_ewis Title: Vice Pres i den -l -/D i rector of Multifamily Development/secretary "CITY" CITY OF DIAMOND BAR Dated: By:_::;��� Name: Title: WBF:Ian\949\G2303D-DevAgmt;062904 STATE OF CALIFORNIA )ss. COUNTY 0 F ) On lo er 1, -?-Oo I/ before me, 1�—�VAIA -q - j0�dyA( a Notary Public in and for said county and state, personally appeared DW -z:> R. personally known tome (G"i:eved to be the person whose name is subscribed to the within instrument and acknowledged to nae 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 OF CALIFORNIA ss. COUNTY OF L A. -A U On 7,,-)00(4 before me, 7(Dmnq!i -f- Anne,a Notary Public it and for said (county and state, personally appeared personally known to me ( ) 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 2C Omld'� C gg pa•4A E I I MMM C gg C 'mPmvmwm.==w 512310 5 EXHIBIT "A-1" TO DIAMOND BAR VILLAGE DEVELOPMENT AGRItE,-EMENT Legal Description of Property THE LAND SITUATED IN THE STATE OF CALIFORNIA, CITY OF DIA1,,,4OND 8AR OF LOS ANGELES: 'COUNTY PARCEL A: PARCELS'.? AND 3 OF PARCEL MAP NO. 14819, IN THE CITY OF DLkNIOND 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 COL)-NTy RECORDER OF SAID COUNTY. EXCEPT THEREFROM ALL OIL & GAS AND OTHER HYDROCARBONS AN -D MINERALS NOW OR AT ANY TIME HEREAFTER SITUATED THEREIN AN1---) THEREUNDER AS RESERVED IN DEED OF TRANSAMERICA DEVELOPMENT COMPANY, A CORPORATION, RECORDED MARCH 29, 1968, BOOK D3955 PAGE 185, OFFICIAL RECORDS . ANDRE_ RECORDED JUNE 19,1969, BOOK D4407, PAGE 591, OFFICIAL RECOIRDS. ALL SURFACE RIGHTS TO A DEPTH OF 500 FEET WERE QUITCLAIMED BY INSTR--rJMENT RECORDED OCTOBER 9, 1981 AS INSTRUMENT NO. 81-1004553, OFFICIAL RECpRDS. PARCEL Al: THOSE CERTAIN NON-EXCLUSIVE PERPETUAL ROAD EASEMENTS GRANTED IN ACCORDANCE WITH SECTIONS 5.01, 5.02, AND 5.03 OF THAT CER-rAIN DECLARATION OF RESTRICTIONS, SLOPE DEVELOPMENT, MAINTENANCE AND EASEMENT DATED MARCH 2, 1983, AND RECORDED MARCH 2, 1983 AS INSTRLT�4ENT NO. 83-237794, OFFICIAL RECORDS Exhibit "A-1 " 05 1198312 EXHIBIT TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT Description of Annexable, Property Annexable Property is that portion of Planning Area I which provides for commercial -retail development of the type generally shown on Exhibit "F-1" attached hereto. Exhibit "A-2" D 6 119 8 3 12, EXHIBIT "A-3" , TO DIAMOND BAR VILLAGE DEVELOPMENT AGR-V_EMENT 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" 05 1198312 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 - - . 200_ pursuant to and in accordance with that certain Diamond Bar Village Development Agreement between the City of Diamond Bar and Developer approved June 29, 2004 (Ordinance 04(2004) (the "Development Agreement'). RECITALS 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"). 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 Property. 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. Exhibit "A-3" 05 1198312 5/2310 5 Assignment / Notice of Annexation Page 2 J 2.3 Defined Terms. Unless otherwise defined herein, all capitalized V,,'()rds and phrases used in 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 record-ation in the OPFicial. Records of Los Angeles County, California. "CITY" By: Name: Title: "DEVELOPER" LEWIS-DIAMOND BAR, LLC, a Delaware limited liability company By: LEWIS OPERATING CORP., a California corporation By: Name: Title: Exhibit "A -Y 5123105 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 whosename is subscribed to the within instrument and acknowledged to me that he executed the same i I n 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 ON Exhibit "A-3" U5 l i 9 8 3 i 2 Exhibit "A-3" , _;, 4 4 n n , 5.12310 5 EXHIBIT "B" TO DIAMOND BAR VILLAGE DEVELOPMENT AGRF—EMENT Map of Specific Plan Area Exhibit "B" 05 li98312 ULH11311 '"15" TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT Map of Specific Plan Area ■ 1:11 A TQ Current Development Approvals General Plan Amendment No. 2004-01 Resolution Nom. 2004-36 Zone Change No. 2004-02 Ordinance N®, 02(2004) Diamond Bar Village Specific Plan No. 2004-01 Ordinance Nom, 03(2004) Addendum to Medical Plaza Final Environmental Impact Report, SCH No. 91121027 and Diamond Bar Economic Revitalization Area Final Environmental Impact Report, SCH 96111047 Resolution No,. 2004-35 Development Agreement No. 2004-01 Ordinance No'. 04(2004) 05 1198312 Exhibit "C" TO DIAMOND BAR VILLAGE DEVELOPMENT AGRE:ENIENT ]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. 5 1198312 Exhibit "D" 0. EXHIBIT "E" TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT -1 . � - Grand -Avenue Improvements The proposed Grand Avenue Bea utification/Betterment Prooject consists of mod ifications/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 oftraffic, replacement of existing irrigation systems, landscape, hardscape, planting, and concrete improvements. Included in this Bea utification/Betterment Project will be traffic safety enhancements such az street widening in the vicinity of Golden Springs Drive, installation and/or modification 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" I . 05 1198312 EXHIBIT "F-1" TO DIAMOND BAR VILLAGE DEVELOPMENT AGRIP—EMENT Commercial Component Description a Exhibit "F-1" 05 1198312 --7 "I+'-1" EXIMIT TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT 111111011 4a _ .. Commercial Component Description CL"�• �• ill 1' I I,' .-1_ \ i = _ + e� Down I •1 1 Ili; I I�i'Ii-I 'i,�.`'+, � - ,� - i- i , tall CUM 111 III XII .�F.F = ru g; , r tt _ Mai`1� • .,�, IIIIIf111 -. 114tI mg r �.' ' _ Ilfill t11 tllt ,-i -/=1 t ` �'. J I i � • fill it I ITT., TI14EI IES „ � �i i T Ili1s'I fi') J fly' i' iI,rl' H I ' j �. ��� ��II I`� .t���� i ( -t— a.l i III 1l'�. yam•_. --� _ -a IIzy�Illtll,�l i .' pd -a W. • _ >I_i l l I I � . �;. - ...._.__.__ _ � r yon€� "Emm9 M °mco9� m Zen Esc= Exhibit "F-1" Page 1 oft z�P=o3¢ a I= ntill,ttali,{t'a .!.I. EXIT "F-1" ON 1 OOR% - Nil ti IIII Iillllt, - = iiii ilOi till' !! a p� u- ® p��s o IILt L 1, I CL o® CL �,Vg U �I�liii!li'a l ;t:{,Itill{ �m Ili it ;- III;ii_II U rid rP tfn�. IIIIUiIii I;t IIIHII Iill! fu = - It!1 n BUT 'i!Il;illlil Iltl! llt I -_ !1 It 111I(tf III tl - Py �� do / •1'111 I!I ,i Y rUl EI i �- /•'� � �ti� �� =' ca =t tiri d ti;ri m'm - a. E � .Elm m rn aa�ov °_5;m .L ammo9r' .z -ovpsE cmc ` m a ._ Em E a u -9a-¢ m mo=uNa is - z�ea�o3¢ EXAIBIT "F-2" TO r r 4 VILLAGE DEVELOPMENT 4.G Letter of Credit Form FINANCIAL INSTITUTION NAME ADDRESS Contact Phone: Email: Beneficiary: Letter of Credit No.: City of Diamond Bar 21825 Copley Drive Date: 2004 Diamond Bar, CA 91765 Ladies and Gentlemen: 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 00/100 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 on the same day of each month thereafter until written notice that Levis is not in default is executed by Beneficiary and delivered to us; or B. "The undersigned, an authorized representative of the City 0 f Diamond Bar, hereby certifies that: 1. Lewis -Diamond Bar, LLC, a Delaware limited liability company; has failed to meet its obligations under Section 4.5 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 C-recl't and Lewis failed to deliver a replacement Letter of Credit or to extend term 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 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 [FINANCLkL INSTITUTION NAME] Letter of Credit No. dated - 2004". 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" e% VW - s®__ 512310 5 We hereby engageArith 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 pa�Ment at our office on or before the expiration date as specified herein. FINANCIAL INSTITUTION NAMF, By: . Name: Title: Exhibit "F-2" 05 1198312 We hereby engageArith 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 pa�Ment at our office on or before the expiration date as specified herein. FINANCIAL INSTITUTION NAMF, By: . Name: Title: Exhibit "F-2" 05 1198312 SCHEDULE TO DIAMOND BAR VILLAGE, DEVELOPMENT AGRVCE-NIENT Brookfield Home Depot, Lowes, Target List of Pre -Approved Developers Schedule 1 SCHEDULE2 TODIAM ITL # GE [MIRR '7 71 0 Schedule 2 5123105 SCHEDULE3 TO DIAMOND BAR VILLAGE DEVELOPMENT AGREEMENT Project Impact Fees FEE DESCRIPTION AMOUNT TIME OF PAYMENT City Traffic Fee [To be Determined per Section 4.2. 1 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 Project Meeting Schedule CITY OF DIAMOND BAR r.nNAMI INITY nFVFLOPMENT DEPARTMENT ocEttcnwcc, avv� - - -. PLANNING COMMISSION REVIEW PROJECTS PC cc PC cC, PC CC n 'Case # ` PM `` r`Apphcant� Project Location �' x �, 10/10/06 1.0!17/06 Ff .t. 3i :: } 1 . 7 lE. - 2 {f; 9126/06 9/12/06 s-�' i Y . GRAND/GOLDEN DA 2004-01 NF/ TARGET/LEWIS DEVELOPMENT PH SPRINGS SC (Amendment No. 2 to Development (Target Property) Agreement) 21725 GATEWAY CTR. DR 2006-20 LDM/ ROYAL STREET COM. Cont. AJL Telecommunications site PH 1196 CHISHOLM TRAIL DR2004-12(1) LKS NARINDER AND AASHA KUMAR PH One year extension TERMINUS AT CROOKED VTTM 54081 AJL DANIEL SINGH PH CREEK 19 Lot residentiallsubdivision ADMINISTRATIVE REVIEWS Project Location fit Case'# ? PMS + r z Applicant z L r F, } f 4 NONE PENDING PROJECTS r Project Location r "Case-# PM Re', Y ,> A , 526 BELLOWS DR 2006-21. AJL GUNN APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — MCUP 2006-11 Addition WAITING FOR ADDITIONAL INFORMATION 1336 BRIDGE GATE DR 2005-32 AJL KAISER MEDICAL APPLICANT NOTIFIED OF INCOMPLETE APPLICATION - Medical offices WAITING FOR ADDITIONAL INFORMATION 1200 CHISHOLM TRAIL DR 2006-19 LDM/ LEE APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — AJL WAITING FOR ADDITIONAL INFORMATION CITYWIDE DCA 2006-01 AJL DEVELOPMENT CODE PROCESSING AMENDMENT CLEAR CREEK CYN/ TTM 06166 AJL AKBAR OMAR APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — MONUMENT CYN TM 2005-02 (5 -lot single family residential) WAITING FOR ADDITIONAL INFORMATION. NEW PLANS TO BE SUBMITTED BY DEVELOPER. 2366 CLEAR CREEK LN. DR 2006-13 LDM/ GEORGE MIDLEY APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — AJL (Demo and rebuild single family WAITING FOR ADDITIONAL INFORMATION residence LEGEND PH = PUBLIC HEARING X = NON PUBLIC HEARING Project Meeting Schedule CITY OF DIAMOND BAR Page 2 rrr-WMAi MITY nFVF1 OPMFNT nFPARTRAFNT JCEllC111VC1 IG, GVVV ��••""—'"' --. - - - PENDING PROJECTS (continued) mss- P". �' W`^� -r -.J ..•_•,_-. ... h,,•r . rru-,.i t - Project Location t hGase! Status f 24445 DARRIN DR 2006-31 DA AGRAMONTE PROCESSING Addition 150 DIAMOND BAR BL. CUP 2006-02 SC CHEVRON PRODUCTS APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — DR 2006-05 (Demolish and rebuild gas station) WAITING FOR ADDITIONAL INFORMATION CSP 2006-01 206 DIAMOND BAR BL. ZC 2005-02 AJL SHELL APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — CUP 2005-07 (Remodel/addition of car wash) WAITING FOR ADDITIONAL INFORMATION DR 2005-36 SR 2005-32 2828 DIAMOND BAR BI. CSP 2006-04 SC MCC CAPITAL PROCESSING VAR 2006-04 (Country Hills Towne Center signage) 23655 FALCONS VIEW DR 2006-02 LDM/ CHIEN YEH APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — AJL (Demo of and construction of new WAITING FOR ADDITIONAL INFORMATION single family residence 1948 FLINT ROCK DR 2006-25 LDM/ LEU APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — VAR 2006-01 AJL New three story residence WAITING FOR ADDITIONAL INFORMATION 22324 GOLDEN SPGS CUP 2006-11 SC HIDDEN MANNA PROCESSING DR 2006-32 (Calvary Church - Additions) CSP 2006-03 20627 GOLDEN SPGS #1-0 CUP 2006-10 AJL BYUNG DO LIM APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — (Acupuncture/Acupressure Clinic WAITING FOR ADDITIONAL INFORMATION 1241 GRAND CUP 2006-12 DA CHEON PROCESSING Taekwondo Studio 1600 GRAND CUP 2005-08 AJL CINGULAR APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — Wireless at Diamond Bar Center WAITING FOR ADDITIONAL INFORMATION 2260 INDIAN CREEK DR 2006-28 AJL DEREK LEE APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — (Single family residence WAITING FOR ADDITIONAL INFORMATION LARKSTONE DR. EIR 2005-01 NF JCC — SOUTHPOINTE EIR IN PROCESS 99 single family residential 21324 PATHFINDER DR 2004-33 LKS MOHAMAD SALIMNIA APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — Gas station remodel WAITING FOR ADDITIONAL INFORMATION 2201 PEACEFUL HILLS CUP 2006-05 SC NEXTEL APPLICANT WITHDRAWN (Wireless facility) Project Meeting Schedule CITY OF DIAMOND BAR Page 3 nnnnnni inuTv nGVFI nPMFNT nF=PARTMFNT aepiemoer 14, 4uvv ••••• — _ _ — PENDING PROJECTS (continued) f Project Location ` ...Case # <: PM r A I�cant Statta APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — 23121 RIDGELINE DR 2006-18 AJL HGUI new single family residence WAITING FOR ADDITIONAL INFORMATION 2151 RUSTY SPUR DR 2006-26 LDM/ STEVEN HSIEH —GRACE APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — AJL COUNTRY DEV. WAITING FOR ADDITIONAL INFORMATION New single family residence 2887 SHADOW CANYON DR 2005-35 LKS EKO. KUNJORO APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — TP 2005-09 (New single family residence) WAITING FOR ADDITIONAL INFORMATION. NEW PLANS TO BE SUBMITTED BY DEVELOPER 2695 SHADY RIDGE DR 2005-21 LKS XLART GROUP APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — WAITING FOR ADDITIONAL INFORMATION 1425 SUMMITRIDGE CUP 2006-03 AJL OMNIPOINT COM. APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — Diamond Bar Center DR 2006-16(Wireless co -location WAITING FOR ADDITIONAL INFORMATION 24142 SYLVAN GLEN CUP 2006-01 LKS CINGULAR APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — Peterson Park DR 2006-01 (Expand telecommunication facility) WAITING FOR ADDITIONAL INFORMATION 3015 WAGON TRAIN DR 2003-27/ AJL LAUREN PARK APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — TP 2003-08/ (Extension of time) WAITING FOR ADDITIONAL INFORMATION MCUP 2004-02 20405 WALNUT DR 2005-34 AJL LAMPS PLUS APPLICANT NOTIFIED OF INCOMPLETE APPLICATION — arehouse/retail building) WAITING FOR ADDITIONAL INFORMATION CITY OF DIAMOND BAR NOTICE OF PUBLIC MEETING AND AFFIDAVIT OF POSTING STATE OF CALIFORNIA COUNTY OF LOS ANGELES CITY OF DIAMOND BAR On September 12, 2006, the Diamond Bar Planning Commission will hold a regular session at 7:00 p.m., at the South Coast Quality Management District/Government Center - Auditorium, 21865 Copley Drive, Diamond Bar, California. Items for consideration are listed on the attached agenda. 1, Stella Marquez, declare as follows: I am employed by the City of Diamond Bar. On September 7, 2006, a copy of the Notice for the Regular Meeting of the Diamond Bar Planning Commission, to be held on September 12, 2006, was posted at the following locations: South Coast Quality Management District Auditorium 21865 East Copley Drive Diamond Bar, CA 91765 Diamond Bar Center 1600 Grand Avenue Diamond Bar, CA 91765 Heritage Park 2900 Brea Canyon Road Diamond Bar, CA 91765 Diamond Bar Library 1061 Grand Ave. Diamond Bar, CA 91765 I declare under penalty of perjury that the foregoing is true and correct. Executed on September 7, 2006, at Diamond Bar, California. . Stella Marquez Community Development Department gA\affidavitposting.doc