HomeMy WebLinkAbout690ORDINANCE NO. 690
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
IRWINDALE APPROVING DEVELOPMENT AGREEMENT NO. 01-2013,
BETWEEN CITY OF IRWINDALE AND IRWINDALE OUTLET
PARTNERS, LLC, FOR THE PROPOSED OUTLET MALL PROJECT,
WHICH ENTAILS CONSTRUCTION OF AN APPROXIMATELY 700,000
SQUARE-FOOT SHOPPING CENTER WITH ATTENDANT PARKING
ON PROPERTY LOCATED AT 500 SPEEDWAY DRIVE (APNs 8532-
004-022; 025; 026) SUBJECT TO CONDITIONS AS SET FORTH
HEREIN AND MAKING FINDINGS IN SUPPORT THEREOF
A. RECITALS.
(i) Lindom Company (Applicant) on behalf of Irwindale Outlet Partners, LLC,
328 South Atlantic Boulevard, #268, Monterey Park, CA 91754 (Owner)
has made a request to enter into a Development Agreement with the City
of Irwindale to construct and operate a +/-700,000 square-foot shopping
center on property located at 500 Speedway Drive, APN # 8532-004-022;
025; 026 ("Subject Property"). In association with this request, the
Applicant has also requested that the City approve a Zone Change and a
Site Plan and Design Review with an exemption from the City's
Commercial and Industrial Design Guidelines.
(ii) The Subject Property is currently zoned M-2 (Heavy Manufacturing) and is
proposed to be re-zoned to C-2 (Heavy Commercial) as part of the
associated Zone Change request (ZC No. 01-2013) for General Plan
consistency purposes.
(iii) Pursuant to the authority and criteria contained in the California
Environmental Quality Act (CEQA) of 1970, as amended, and the City of
Irwindale environmental guidelines, the City, as the Lead Agency, has
analyzed the project and has prepared an Environmental Impact Report
("FIR"). The FIR was circulated for public review for the required 45 days
from December 24, 2014 through February 6, 2015. A copy of the EIR
was circulated through the State Clearinghouse (SCH# 2014071042),
posted on the City's website, and was available at the Irwindale Public
Library and Deputy City Clerk's Office. A copy of the FIR and Mitigation
Monitoring and Reporting Program was posted on the City's website.
(iv) The public review period for the Draft FIR ended on February 6, 2015.
Ordinance No. 690
Page 1
(v) A Final Environmental Impact Report was prepared on the proposed
project, including the Draft EIR, comments received on the Draft EIR and
responses to those comments, and any applicable revisions/corrections to
the Draft EIR made in response to comments received.
(vi) On February 26, 2015, the project was duly noticed and scheduled before
the Planning Commission for consideration. The Planning Commission
opened the hearing, solicited public testimony, left the hearing open, and
continued the hearing at the request of the Applicant to a special meeting
on March 9, 2015, at which time it received input from staff, the Assistant
City Attorney, and the Applicant, heard public testimony, discussed the
Proposed Project, and closed the public hearing. The Planning
Commission recommended that the City Council approve the
Development Agreement, Zone Change, Site Plan and Design Review
with design guidelines exemption, certify the Final EIR, and adopt the
Findings of Fact, a Statement of Overriding Considerations, and a
Mitigation Monitoring and Reporting Program per PC Resolution No.
658(15).
(vii) On March 25, 2014, the City Council conducted a duly noticed public
hearing, as required by law, on the Application and recommendation of
the Planning Commission to approve the Proposed Project, which allows
development of a +/-700,000 square-foot shopping center on the Subject
Property, took testimony, reviewed relevant documentary evidence and
conducted a first reading of this Ordinance approving Development
Agreement No. 01-2013; and
(viii) All legal prerequisites to the adoption of this Ordinance have occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF IRWINDALE DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The City Council finds that the above recitals are true and correct
and are incorporated herein by this reference.
SECTION 2. The City Council finds as follows:
Development Agreement Findings:
a. Development Agreement No. 01-2013 is consistent with the
provisions of the Development Agreement statutes, at Government Code sections
65864 et seq.;
Ordinance No. 690
Page 2
tki
a M. Nieto, CMC
'puty City Clerk
b. The proposed development of Outlet Shopping Center per
Development Agreement No. 01-2013 is consistent with the General Plan and proposed
0-2 Zoning designation; and
c. Development Agreement No. 01-2013 contains provision for
periodic review of Developer's compliance with its terms, is limited in duration through
2030, with two (2) additional ten (10) year extension options, and specifies the permitted
use of the site related to retail and associated activities thereon and provisions for City
access to the site where necessary.
SECTION 3. In light of the above findings and further testimony and
documentation provided at the public hearing to consider approval of the project
described in Development Agreement No. 01-2013, the City Council hereby approves
Development Agreement No. 01-2013 and authorizes its execution and all actions
necessary to comply with its terms, subject to approval as to form, including non-
substantive changes, as approved by the City Attorney.
SECTION 4. The City Council hereby authorizes and directs the Mayor and the
City Clerk to execute this Ordinance on behalf of the City of Irwindale forthwith upon its
adoption.
SECTION 5. The Deputy City Clerk shall certify as to the passage of this
Ordinance and shall cause the same to be published and/or posted at the designated
locations in the City of Irwindale.
PASSED, APPROVED, AND ADOPTED this 8 th day of April, 2015.
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el Cc
,Mark A. Breceda, Mayor
ATTEST:
Ordinance No. 690
Page 3
ra M. Nieto, CMC
eputy City Clerk
Dated:
ra M. Nieto, CMC
puty City Clerk
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES } ss.
CITY OF IRWINDALE
I, Laura M. Nieto, Deputy City Clerk of the City of Irwindale, do hereby certify that the
foregoing Ordinance No. 690 was duly introduced at a regular meeting of the Irwindale
City Council held on the 25 th day of March 2015, and was duly approved and adopted
on second reading at its regular meeting held on the 8 th day of April 2015, by the
following vote of the Council:
AYES: Councilmembers: Ambriz, Garcia, Miranda, Ortiz and Mayor Breceda
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ABSTAIN: Councilmembers: None
AFFIDAVIT OF POSTING
I, Laur4l. Nieto, Deputy City Clerk, certify that I caused a copy of Ordinance No. 690, adopted by the City Council of the City of
ind I at its regular meeting held April 8, 2015, to be posted at the City Hall, Library, and Post Office on April 14, 2015.
ithcffir
Ordinance No. 690
Page 4
Recording Requested by And
When Recorded Return to:
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: City Clerk
(Space Above This Line for Recorder's Office Use Only)
(Exempt from Recording Fee per Gov. Code § 6103)
DEVELOPMENT AGREEMENT
between
THE CITY OF IRWINDALE
("City")
and
IRWINDALE OUTLET PARTNERS, LLC
A Delaware Limited Liability Corporation
("Developer")
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DEVELOPMENT AGREEMENT
This Development Agreement (hereinafter "Agreement") is entered into this 25 th
day of March, 2015, by and between the City of Irwindale, a municipal charter
corporation (hereinafter "City"), and Irwindale Outlet Partners, LLC, a Delaware limited
liability corporation, ("hereinafter "Developer"). City and Developer are hereinafter
referred to each as a "party" and collectively as the "parties".
RECITALS
A. The Development Agreement Law. California Government Code Sections
65864 et seq. ("Development Agreement Law") authorizes cities to enter into binding
development agreements with persons having a legal or equitable interest in real
property for the development of such property, all for the purpose of strengthening the
public planning process, encouraging private participation and comprehensive planning
and identifying the economic costs of such development. The legislative findings and
declarations underlying the Development Agreement Law and the provisions governing
contents of development agreements state, in Government Code §§ 65864(c) and
65865.2, that the lack of public facilities, including, but not limited to, streets, sewerage,
transportation, drinking water, school, and utility facilities is a serious impediment to the
development of new housing and commercial economic development opportunities, and
that applicants and local governments may include provisions in development
agreements relating to applicant financing of necessary public facilities and subsequent
reimbursement over time.
B. The Property. Developer is the owner of legal and/or equitable interests in
certain real property legally described in Exhibit "A" attached hereto and incorporated
herein (the "Property"), and thus qualifies to enter into this Agreement in
accordance with Development Agreement Law. The Property was most recently
developed as the "Irwindale Speedway". Prior to the speedway, the Property was used
as an outdoor swap meet for several years and prior to the swap meet, a landfill. Prior
Property owner, Irwindale Speedway, LLC, declared bankruptcy after the 2011 season
and vacated the property in early 2012. The Property was purchased by the Developer
in 2013. There is extant a certain lease permitting operation of drag racing and other
activities on the Property, which Developer hereby represents will continue at
Developer's option until the Developer has pulled first building permit and starts
construction of the Project (as hereinafter defined).
C. Existing Uses and Zoning. The Property is zoned M-2 (Heavy
Manufacturing) and is relatively flat. The General Plan land use designation for the site
is Commercial/Recreation. The Property's surroundings consist of General Plan land
use designations of Industrial/Business Park, Quarry Overlay, and Regional
Commercial and related zoning of M-2 and C-2 (Heavy Commercial). Water features in
the area include the Santa Fe Dam approximately 0.8 miles northeast of the Property,
and the San Gabriel River approximately 0.25 miles east of the Property. Beyond the
immediately adjacent land uses are residential neighborhoods.
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D. The Project. Developer and City agree that a development agreement
should be approved and adopted for this Property in order to memorialize the
development expectations of City and Developer as more particularly described
herein. Developer proposes to develop, pursuant to this Agreement, an approximate
702,000 square foot regional shopping center and associated parking on the
approximately 63.5 acre Property (the "Project"). (See Scope of Development at Exhibit
"B".) In addition to the primary function of the shopping center to provide retail space for
shopping opportunities, the Project includes ancillary amenities including a central plaza
for public gatherings, entryway features, an outdoor entertainment/performance area, a
food court, and a police substation. The proposed Project would include related
improvements, including, but not limited to parking, landscape planters, fencing, and
walls. The Project consists of at least two fundamental components:
Phase 1: The (a) demolition and removal of the existing speedway
and associated buildings, with environmental/soils testing and remediation
to be conducted. Depending on the results of soil testing currently
underway, on-site soils will likely need to be over-excavated and re-
cornpacted or replaced with suitable soils. And (b) development of
approximately 459,000 square feet or 65 percent of the total Project
building space.
Phase 2: Development of approximately 242,000 square feet or 35
percent of the total Project space. Concrete, asphalt, and other
acceptable demolition debris would be used on site as fill within the
racetrack oval as well as other portions of the project as deemed
necessary for proper preparation of the Property's foundations.
E. Public Benefits of the Project. The City Council has found that this
Agreement is in the best public interest of the City and its residents, adopting this
Agreement constitutes a present exercise of the City's police power, and this Agreement
is consistent with the City's General Plan. This Agreement and the proposed Project (as
hereinafter defined) will achieve a number of City objectives, including the orderly
development of the Property; the provision of public benefits to the City and its residents
through public improvements, including a recreational component, improvements to the
Property, and infrastructure improvements in and around the Property. The Project will
provide local and regional public benefits to the City, including, without limitation:
Increased Tax Revenues. The development of the Property in
accordance with the terms of this Agreement will result in increased
real property, sales, utility and business taxes, and other revenues to
the City.
• Pedestrian Mobility. The Project encourages pedestrian mobility
through the provision of a "one stop" shopping center with walking
paths serving a variety of consumer needs in one location within
walking distance. Increased pedestrian mobility, and the concurrent
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decrease in vehicle trips, reduces air and noise pollution and is
consistent with the City's sustainability goals.
• Sustainable Design. The Developer will, to the extent reasonably
feasible, include sustainable design for commercial and industrial uses
and green building standards.
• Recreational Amenities. The Project includes an outdoor
entertainment/performance area.
• Job Creation. The Project proposes to employ approximately 5,000
people.
F. Public Hearing Findings. City finds and determines that all actions required of
City precedent to approval of this Agreement by Ordinance No. 690 of the City
Council have been duly and regularly taken. In accordance with the requirements of
the California Environmental Quality Act (Public Resources Code § 21000, et seq.
("CEQA")), appropriate studies, analyses, reports and documents were prepared and
considered by the Planning Commission and the City Council. The Planning
Commission, after a duly noticed public hearing on March 9, 2015„ recommended
certification of a Final Environmental Impact Report (SCH 2014071042) (the "EIR"),
adoption of Findings of Fact, Mitigation Monitoring and Reporting Program (MMRP),
and Statement of Overriding Conisderations in compliance with CEQA through the
adoption of PC Resolution No. 659(15). On the same day, the Planning Commission,
after giving notice pursuant to Government Code §§ 65090, 65091, 65092 and 65094,
held a public hearing on the Developer's application for this Agreement a Zone Change,
and a Site Plan and Design Review application and adopted Resolution No. 659(15)
recommending to the City Council approval of said requests. On March 25, 2015, the
City Council, after providing the public notice required by law, held a public hearing to
consider the Developer's application for this Agreement. The Planning Commission and
the City Council have found on the basis of substantial evidence based on the entire
administrative record, that this Agreement is consistent with all applicable plans, rules,
regulations and official policies of the City.
G. Exemption from Design Guidelines. This Project shall be exempt from the
City's "Design Guidelines" (as defined in Article 17 of the Irwindale Municipal Code)
pursuant to Irwindale Municipal Code Section 17.70.010(B)(3), which exempts from
Design Guidelines, "[n]ew or renovated buildings in a development subject to a
development agreement where the development contains at least fifty percent of the
square footage committed to retail establishments on one or more parcels tied together
and having at least 500,000 sguare feet of retail space."
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:
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Speedway Outlets Shopping Center
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1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. This Agreement uses a number of terms having specific
meanings, as defined below. These specially defined terms are distinguished by having
the initial letter capitalized, when used in the Agreement. The defined terms include the
following:
1.1.1 Agreement. "Agreement" means this Development Agreement and
all attachments and exhibits hereto.
1.1.2 Annual Review. "Annual Review" means the annual review of the
Developer's performance of the Agreement in accordance with Section 4.1 of the
Agreement and Government Code § 65865.1.
1.1.3 Applications. "Application(s)" means a complete application for the
applicable land use approvals (such as a subdivision map, conditional use permit, etc.)
meeting all of the current ordinances of the City provided that any additional or alternate
requirements in those ordinances enacted after the Effective Date which affect the
Project application shall apply only to the extent permitted by this Agreement.
1.1.4 Authorizing Ordinance. "Authorizing Ordinance" means Ordinance
No. 690 approving this Agreement, introduced on March 25, 2015 and adopted on April
8,2015.
1.1.5 Certificate of Occupancy. "Certificate of Occupancy," with respect to
a particular building or other work of improvement, means the final certificate of
occupancy issued by the City with respect to such building.
1.1.6 City. "City" means the City of Irwindale, a chartered municipal
corporation.
1.1.7 City Council. "City Council" means the City Council of the City.
1.1.8 Claims or Litigation. "Claims or Litigation" means any challenge by
adjacent owners or any other third parties (i) to the legality, validity or adequacy of the
General Plan as it is applied and processed in connection with the Project, Land Use
Regulations as applied and processed in connection with the Project, this Agreement,
the Development Approvals or other actions of the City pertaining to the Project, or
(ii) seeking damages which may arise directly or indirectly from the negotiation,
formation, execution, enforcement or termination of this Agreement and/or the
construction, maintenance and operation of the Project.
1.1.9 Developer. "Developer" means Irwindale Outlet Partners, LLC, a
Delaware limited liability corporation, and its successors and assigns to all or any part of
the Property.
1.1.10 Development. "Development" means the improvement of the
Property for the purposes of completing the structures, improvements and facilities
DEVELOPMENT AGREEMENT
Speedway Outlets Shopping Center -4-
1017711.1
comprising the Project including, but not limited to: grading; the construction of
infrastructure related to the Project whether located within or outside the Property; the
construction of buildings and structures; and the installation of landscaping and other
facilities and improvements necessary or appropriate for the Project, and the
maintenance, repair, or reconstruction of any building, structure, improvement,
landscaping or facility after the construction and completion thereof on the Property.
1.1.11 Development Approvals. "Development Approvals" means all site-
specific (meaning specifically applicable to the Property only and not generally applicable
to some or all other properties within the City) plans, maps, permits, and entitlements to
use of every kind and nature. Development Approvals include, but are not limited to,
General Plan amendments, specific plans, site plans, tentative and final subdivision
maps, design guidelines, variances, zoning designations or changes, conditional use
permits, grading, building, and other similar permits, the site-specific provisions of
General Plans, environmental assessments, including environmental impact reports and
negative declarations, and any amendments or modifications to those plans, maps,
permits, assessments and entitlements. The term Development Approvals does not
include (i) rules, regulations, policies, and other enactments of general application within
the City, or (ii) any matter where City has reserved authority under Article 3. It is
anticipated that the following Development Approvals will be approved before or in
conjunction with this Agreement: (i) Site Plan & Design Review Permit No. 01-2013, and
(ii) Zone Change No. 03-2013, and (iii) Lot Line Adjustment No. 01-2013, and
(iv) approval of the EIR pursuant to CEQA.
1.1.12 Development Plan. "Development Plan" means the Development
Approvals and Subsequent Development Approvals as to be processed pursuant to the
Existing Land Use Regulations by City subsequent to the Effective Date. Conceptual
drawings and Site Plan for the Development Plan are attached hereto as Exhibit "B."
1.1.13 Effective Date. "Effective Date" means the date thirty (30) days
after the adoption of the Authorizing Ordinance if no Claim or Litigation have been filed
which would prevent the Authorizing Ordinance from taking effect. If such a Claim or
Litigation has been filed, then the Effective Date shall be the date that the Claim or
Litigation has been filed, then tolled until the date that the Claim or Litigation has been
successfully resolved in the City's favor, and the time for any further judicial review has
run, so that the Authorizing Ordinance shall be effective. The City shall give Developer
notice as to the date established as the Effective Date. The Effective Date is not
otherwise tolled for any other Force Majeure as described in Section 10.10 or Section
3.4.2.
1.1.14 Existing Land Use Regulations. "Existing Land Use
Regulations" means the Land Use Regulations which have been adopted and are
effective on or before the Effective Date of this Agreement.
1.1.15 Land Use Regulations. "Land Use Regulations" means all
ordinances, laws, resolutions, codes, rules, regulations, policies, requirements,
guidelines or other actions of City, including but not limited to the City's General Plan,
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Speedway Outlets Shopping Center
1017711.1
any applicable Specific Plan, and Municipal Code and Zoning Code and including all
development impact fees (except as otherwise provided in Sections 3.11 and 3.13),
which affect, govern or apply to the development and use of the Property, including,
without limitation, the permitted use of land, the density or intensity of use, subdivision
requirements, the maximum height and size of proposed buildings, the provisions for
reservation or dedication of land for public purposes, and the design, improvement and
construction standards and specifications applicable to the Development of the Property,
subject to the terms of this Agreement. The term Land Use Regulations does not
include, however, regulations relating to the conduct of business, professions, and
occupancies generally; taxes and assessments; regulations for the control and
abatement of nuisances; uniform codes; utility easements; encroachment and other
permits and the conveyances of rights and interests which provide for the use of or entry
upon public property; any exercise of the power of eminent domain; health and safety
regulations; environmental regulations; or similar matters or any other matter reserved to
the City pursuant to Article 3.
1.1.16 Mortgagee. "Mortgagee" means a mortgagee of a mortgage, a
beneficiary under a deed of trust or any other security device, a lender or each of their
respective successors and assigns.
1.1.17 Project. "Project" means the Development of the Property
consistent with the Development Plan and this Agreement and as further described in
Recital D hereinabove and Exhibit "B."
1.1.18 Project Completion. "Project Completion" means issuance of
Certificate of Occupancy for 100% of the building shells within each phase and 65% of
the tenant space improvements therein for each phase.
1.1.19 Property. "Property" means the real property described in and
shown in Exhibit "A."
1.1.20 Public Improvements. "Public Improvements" means the
improvements to be constructed on and adjacent to the Property, as further described in
Exhibit "C" attached hereto.
1.1.21 Reservation of Authority. "Reservation of Authority" shall have the
meaning set forth in Section 3.6 of this Agreement.
1.1.22 Subsequent Development Approvals. "Subsequent Development
Approvals" means all Development Approvals issued subsequent to the Effective Date in
connection with Development of the Property, which shall include, without limitation, the
approvals defined herein as the Development Plan and (i) all on-site plans, including
grading and on-site utilities, (ii) approval of a Storm Water Pollution Prevention Plan
(SWPPP) to mitigate site runoff during construction and a Standard Urban Stormwater
Mitigation Plan (SUSMP) to mitigate for post-construction runoff flows, (iii) demolition
permits for existing on-site structures, and (iv) amendments of the Development
Approvals and the Development Plan, subject to Article 9 hereof.
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1017711.1
1.1.23 Subsequent Land Use Regulations. "Subsequent Land Use
Regulations" means any Land Use Regulations effective after the Effective Date of this
Agreement (whether adopted prior to or after the Effective Date of this Agreement),
which governs development, and use of the Property.
1.1.24 Term. "Term" shall mean the period of time from the Effective Date
until the termination of this Agreement as provided in Section 2.4, unless earlier
terminated as provided in this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference
made a part of, this Agreement:
A. Exhibit "A" (Legal Descriptions);
B. Exhibit "B" (Scope of Development with Development Plan, conceptual
and site plans);
C. Exhibit "C" (Public Improvements).
D. Exhibit "D" (CC&Rs)
E. Exhibit "E" (Estimated City Fees)
F. Exhibit "F" (Sign Design Depictions)
2. TERM & GENERAL COVENANTS.
2.1 Binding Effect of Agreement; Termination of Prior Entitlements. From
and following the Effective Date, actions by the City and Developer with respect to the
Development of the Property, including actions by the City on applications for
Subsequent Development Approvals affecting the Property, shall be subject to the terms
and provisions of this Agreement.
Further, it is agreed by the parties that this Agreement shall terminate all prior
development approvals, entitlements, agreements and permits that were granted by the
City to the Irwindale Speedway, LLC ("Speedway Approvals") for the specific purposes
of the Property's use and development by Irwindale Speedway, LLC.
2.2 Ownership of Property. Developer represents it has a legal or
equitable interest in the Property and thus Developer is qualified to enter into and be
a party to this Agreement under the Development Agreement Law.
2.3 Assignments Require City Approval. The experience, knowledge,
capability and reputation of Developer, its principals, employees and affiliates were a
substantial inducement for the City to enter into this Agreement. Except as otherwise
provided herein, the Developer shall not sell, transfer, or assign this Agreement or any
part thereof without the prior written consent of the City Manager, and then only upon
presentation of evidence demonstrating that the person or entity to whom any of the
rights or privileges granted herein are to be sold, transferred, leased, assigned,
hypothecated, encumbered, merged, or consolidated, meets the following criteria:
(i) the transferee has the financial strength and capability to perform its obligations
under the Agreement, including the provision of transferee's audited financials for at
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least the immediately preceding three (3) operating years; (ii) reasonably satisfactory
evidence that the transferee has the experience and expertise to operate the Project,
including reasonably satisfactory evidence that the transferee has experience with
operations and projects with a similar scale of this Project; and (iii) reasonably
satisfactory evidence that the transferee's key principals have no felony convictions.
The proposed transferee shall execute and deliver to the City an assumption agreement
assuming Developer's Project obligations, which assumption agreement shall be in a
form approved by the City Manager and City Attorney. No approved transfer shall
release the Consultant or any surety of Consultant of any liability hereunder without the
express consent of City.
2.3.1 Transfer Defined. As used herein, a "Transfer" or assignment
shall include any sale, transfer, lease, assignment, hypothecation or encumbrance of the
Property and the transfer to any person or group of persons acting in concert of more
than thirty percent (30%) of the present ownership and/or control of the Developer in the
aggregate, taking all transfers into account on a cumulative basis. In the event
Developer or its successor is a corporation or trust, such transfer shall refer to the
transfer of the issued and outstanding capital stock of Developer, or the beneficial
interests of such trust; in the event that Developer is a limited or general partnership,
such transfer shall refer to the transfer of more than thirty percent (30%) of the
ownership and/or control of any such joint venture partner, taking all transfers into
account on a cumulative basis ("Trigger Percentages"). The following shall not be
deemed to be a "Transfer":
A. Any mortgage, deed of trust, sale/lease-back, or other form of
conveyance for financing and any resulting foreclosure therefrom,
but Developer shall notify City in advance of any such mortgage,
deed of trust, or other form of conveyance for financing.
B. The granting of easements or dedications to any appropriate
governmental agency or utility or permits to facilitate the
development of the Property.
C. A sale or transfer resulting from, or in connection with, a
reorganization as contemplated by the provisions of the Internal
Revenue Code of 1986, as amended or otherwise, in which the
ownership interests of a corporation are assigned directly or by
operation of law to a person or persons, firm or corporation which
acquires the control of the voting capital stock of such corporation
or all or substantially all of the assets of such corporation.
D. A sale or transfer of less than the Trigger Percentages between
members of the same immediate family, or transfers to a trust,
testamentary or otherwise, in which the beneficiaries consist solely
of immediate family members of the trustor or transfers to a
corporation or partnership in which the immediate family members
or shareholders of the transferor who owns at least ten percent
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(10%) of the present equity ownership and/or at least fifty percent
(50%) of the voting control of Developer.
E. A transfer of common areas to a property owners' or tenants'
association.
F. Any transfer to Lindom Companies, LLC ("Lindom"), including any
wholly owned subsidiary or limited liability company of which
Lindom is the manager, managing member or member or a limited
partnership of which Lindom is a partner, or any affiliate of Lindom
or any other Developer Affiliate. "Developer Affiliate" shall mean
any entity which owns, or controls Developer, any entity owned or
controlled by Developer, any entity owned or controlled by or
affiliated with any entity which owns or controls Developer, or any
entity resulting from a consolidation, or the surviving entity in case
of a merger, to which consolidation or merger Developer shall be a
party, or to an entity to which all or substantially all of the assets of
Developer have been sold. The term "control," as used in this
subsection F, means, with respect to a corporation or limited liability
company, the right to exercise, directly or indirectly, more than fifty
percent (50%) of the voting rights attributable to the controlled
corporation or limited liability company and, with respect to any
individual, partnership, trust, other entity or association, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of the controlled entity.
G. Any transfer of any of the Property to a limited liability company or
limited partnership to be formed in the future with which Lindon has
entered into an agreement for Lindom to be the developer of the
Project for for Lindom to have primary decisionmaking responsibility
for leasing, construction, design and development of the Project.
H. The execution of any leases or subleases within the Project for
commercial unit occupancy purposes.
2.3.2 Declaration of Covenants, Conditions and Restrictions. Prior to
the transfer of any portion of the Project to a third party, Developer shall submit a
proposed form of Declaration of Covenants, Conditions and Restrictions to be recorded
against the Property to City for its review and approval ("CC&Rs"). Such CC&Rs shall
be substantially similar in form and substance to City's standard form of declaration of
covenants, conditions and restrictions imposed by City upon commercial development
projects located in the City, and will contain, among other things, protective covenants to
protect and preserve the integrity and value in the Project, including but not limited to use
restrictions, maintenance covenants, EIR Mitigation Measures, restrictions under this
Agreement and the Development Plan that will continue to apply to the Project, and a
provision giving City the right to enforce said CC&Rs (See, Exhibit "D" hereto).
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2.4 Term of Agreement. Unless earlier terminated as provided in this
Agreement, this Agreement shall continue in full force and effect until the date that is
fifteen (15) years from and after the Effective Date. Provided Developer is not in default
of this Agreement or the CC&Rs beyond applicable notice and cure periods set forth in
Section 5.2, either at the time it exercises an option or the date the applicable Extended
Term (as defined below) would commence, Developer shall have the right to extend the
Term, under the same terms, conditions and covenants herein contained for two (2)
additional successive terms of ten (10) years each, each Extended Term to begin at the
expiration of the preceding term (the "Extended Terms"). In order to extend the Term or
the Extended Term, Developer shall notify the City in writing of its intent to do so at least
thirty (30) days, but no more than sixty (60) days prior to expiration of the Term or the
Extended Term, as applicable.
2.5 Covenants Run with the Land. Except as specifically provided
otherwise in this Agreement, and pursuant to the Development Agreement Statute
(Gov. Code § 65868.5):
2.5.1 All of the provisions, agreements, rights, powers, standards,
terms, covenants and obligations contained in this Agreement shall be binding upon the
parties and their respective heirs, successors (by merger, consolidation, or otherwise)
and assigns, devisees, administrators, representatives, lessees, and all other persons
acquiring any rights or interests in the Property, or any portion thereof, whether by
operation of laws or in any manner whatsoever and shall inure to the benefit of the
parties and their respective heirs, successors (by merger, consolidation or otherwise)
and assigns;
2.5.2 All of the provisions of this Agreement shall be enforceable as
equitable servitudes and constitute covenants running with the land pursuant to
applicable law; and
2.5.3 Each covenant to do or refrain from doing some act on the
Property hereunder (i) is for the benefit of and is a burden upon every portion of the
Property, (ii) runs with such lands, and (iii) is binding upon each party and each
successive owner during its ownership of such properties or any portion thereof, and
each person having any interest therein derived in any manner through any owner of
such lands, or any portion thereof, and each other person succeeding to an interest in
such lands.
2.6 Covenant Against Discrimination. The Developer covenants that, by
and for itself, its heirs, executors, assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religion, sex, marital status, sexual
orientation or gender preference, national origin, or ancestry in the performance of this
Agreement. The Developer shall take affirmative action to insure that employees are
treated during employment without regard to their race, color, creed, religion, sex,
marital status, sexual orientation or gender preference, national origin, or ancestry.
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3. DEVELOPMENT OF THE PROJECT.
3.1 Rights to Develop. Subject to and during the Term of this Agreement,
Developer shall have a vested right to develop the Property in accordance with, and to
the extent of, the Development Plan, the Existing Land Use Regulations, and this
Agreement. Except as provided within this Agreement, the Development Plan shall
exclusively control the Development of the Property (including the uses of the Property,
the density or intensity of use, 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 Project).
The Developer retains the right to apportion the uses, intensities and densities, between
itself and any subsequent Owners, upon the sale, transfer, or assignment of any portion
of the Property, so long as such apportionment is consistent with the Existing Land Use
Regulations and this Agreement. Developer may elect to develop and construct upon
the Property or any portion thereof a Project of lesser height or building size than that
permitted by the Development Plan provided that such Project otherwise complies with
the Development Plan and this Agreement. Developer may apportion the uses,
intensities and densities within the Property so long as such apportionment complies
with the Existing Land Use Regulations, subject to any applicable requirements of
Article 9 for Project modifications.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise
provided under the terms of this Agreement, the rules, regulations and official policies
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 as set forth in the Existing Land Use Regulations which
were in full force and effect as of the Effective Date of this Agreement, subject to the
terms of this Agreement. Pursuant to Government Code Section 66452.6, the term of
any tentative map for the Property or any portion thereof, if any, filed within the term of
this Agreement shall automatically be extended for the term of this Agreement, as
amended by the Development Approvals. Except as expressly provided in this
Agreement, any Subsequent Land Use Regulations shall not be applied to the Project
or any phase thereof unless Developer, in its sole discretion, gives written notice to City
of its election to have such Subsequent Land Use Regulations applied to the Project or
such phase. All Subsequent Development Approvals for the Property shall, upon
approval by the City, be vested in the same manner as provided in this Agreement for
the Existing Land Use Regulations, for the term of this Agreement.
3.3 Timing of Development. The Parties acknowledge that the substantial
public benefits to be provided by the Developer to the City pursuant to this Agreement
are in consideration for, and in reliance upon, assurances that the City will permit
Development of the Property in accordance with the terms of this Agreement.
Accordingly, the City shall not attempt to restrict or limit the Development of the
Property in any manner that would conflict with the provisions of this Agreement. The
City acknowledges that the Developer cannot at this time predict the timing or rate at
which the Property will be Developed. The timing and rate of Development depend on
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1017711.1
numerous factors such as market demand, interest rates, absorption, completion
schedules and other factors, which are not within the control of Developer or the City.
In Pardee Construction Co. v. City of Camarillo (1984) 37 Ca1.3d 465, the California
Supreme Court held that a construction company was not exempt from a city's growth
control ordinance notwithstanding that the construction company and the city had
entered into a consent judgment (tantamount to a contract under California law)
establishing the company's vested rights to develop its property in accordance with the
zoning. The California Supreme Court reached this result on the basis that the consent
judgment failed to address the timing of development. It is the intent of the Parties to
avoid the result of the Pardee case by acknowledging and providing in this Agreement
that the Developer shall have the vested right to Develop the Property in such order and
at such rate and at such time as the Developer deems appropriate, but in accordance
with the "Development Schedule" (defined below) and the phasing plans developed in
accordance with Section 3.4, and in accordance with other terms hereof or in the
Development Approvals related to project phasing and timing, to the extent feasible. In
addition to, and not in limitation of, the foregoing, but except as set forth in the following
sentence, it is the intent of the Parties that no City moratorium or other similar limitation
relating to the rate or timing of the Development of the Property or any portion thereof,
whether adopted by initiative, referendum or otherwise, shall apply to the Property to the
extent that such moratorium, referendum or other similar limitation is in conflict with this
Agreement. Notwithstanding the foregoing, the Developer acknowledges that nothing
herein is intended or shall be construed as (1) overriding any provision of the Existing
Land Use Regulations to the phasing of development of the Project; or (ii) restricting the
City from exercising the powers reserved to it under this Article 3 to regulate
development of the Property. Nothing in this Section is intended to excuse or release
the Developer from any obligation set forth in this Agreement which is required to be
performed on or before a specified calendar date or event.
3.4 Development Schedule. Notwithstanding the provisions of Section 3.3,
the Developer must achieve certain goals and objectives in terms of Development in
order to keep the Agreement in place for the full Term or an Extended Term.
Satisfaction of the following Development Schedule will be reviewed at each Annual
Review: Developer shall endeavor to complete the Project by 2019, but no later than
2021. Developer shall endeavor to submit the Phase 1 Plans and Drawings (as defined
below) by January 1, 2016, but no later than January 1, 2017. Developer shall
endeavor to submit the Phase 2 Plans and Drawings (as defined below) by January 1,
2018, but no later than January 1,2019.
3.4.1 Phase -I Development Schedule. The Development Schedule
for Phase 1 is as follows:
• Within ninety (90) days of the date that
Developer has executed leases for
tenants covering sixty-five percent
(65%) of the building space in Phase 1
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Submission to City and
other agencies of any
required plans, drawings
and specifications
necessary to obtain
building permits for Phase
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1 ("Phase 1 Plans and
Drawings").
Start of Demolition. 2 months from the dates that the
Phase 1 Plans are approved by the
City or other agencies
Commencement of
grading and work on
Public Improvements.
2 months from the Start of Demolition
for Phase 1
Commencement of Phase
1 vertical construction.
• Commencing 7 months from the
Commencement of grading and work
on Public Improvements for Phase 1,
completed no later than 31 months
from the Commencement of grading
and work on Public Improvements for
Phase 1
Project Completion for
Phase 1.
• 25 months from the Commencement
of Phase I vertical construction
The trigger for submission of the Phase 1 Plans and Drawings, and all subsequent
Development Schedules, shall be subject to the provisions of Section 9.
3.4.2 Phase 2 Development Schedule. The Development Schedule
for Phase 2 is as follows:
Submission to City or
other agencies of any
required plans, drawings
and specifications
necessary to obtain
building permits for Phase
2 ("Phase 2 Plans and
Drawings").
• Within ninety (90) days of the date that
Developer has executed leases for
tenants covering sixty-five percent
(65%) of the building space in Phase 2
Commencement of on-
site Public Improvements
for Phase 2.
2 months from the approval of all
Phase 2 Plans and Drawings.
Commencement of Phase
2 vertical construction.
Commencing 12 months from the
commencement of on-site Public
Improvements for Phase 2, completed
no later than 36 months from the
commencement of on-site Public
Improvements for Phase 2
Project Completion for
Phase 2.
• 25 months from the Commencement
of Phase 2 vertical construction
The trigger for submission of the Phase 2 Plans and Drawings, and all subsequent
Development Schedules, shall be subject to the provisions of Section 9.
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3.4.3 Design Guidelines Exemption. This Project shall be exempt
from the City's "Design Guidelines" (as defined in Article 17 of the Irwindale Municipal
Code) pursuant to Irwindale Municipal Code Section 17.70.010(B)(3), which exempts
from Design Guidelines, "[n]ew or renovated buildings in a development subject to a
development agreement where the development contains at lease fifty percent of the
square footage committed to retail establishments on one or more parcels tied together
and having at least 500,000 square feet of retail space." Notwithstanding the exemption
from the City's Design Guidelines, the Developer shall endeavor to incorporate as many
elements of the Design Guidelines as reasonably possible, except that City may not
delay approval of any of the Project Approvals based on inconsistency with the Design
Guidelines, subject to the following standards:
(a) The Project design shall be of a modern aesthetic
consistent with, and commemorative to, the Property's prior usage as a top-class,
automotive speedway;
(b) The Project design shall be consistent with all other
zoning standards and codes in the Irwindale Municipal Code; and
(c) The Project design shall facilitate the public health, safety
and welfare.
3.4.4 Times of Economic Distress. Development Schedules can be
extended up to five (5) years for each Phase (a total of ten (10) years for the Project) —
but in no event less than one year—due to the occurrence of an "Economically
Distressed Year". In any year in which Developer believes conditions exist to warrant
declaration of an Economically Distressed Year, within 30 days before any anniversary
of the Effective Date, Developer shall submit its request therefore. In support thereof,
Developer shall provide City with a report including the following: (i) a written analysis of
County-wide data supporting the declaration; (ii) publicly available reports concerning
general market conditions affecting commercial retail building and tenancy; (iii) analysis
as to how general market conditions have affected the Project including demand, costs
and financing; and (iv) forecasts concerning the next two (2) years. In addition to
general market conditions, Developer's inability to achieve a tenant occupancy rate at or
exceeding 65% of the tenant-occupied building space in any Project phase shall be
deemed a basis for declaring an Economically Distressed Year, in which case the
aforementioned report shall include a description of the efforts made by Developer to
obtain tenants and any market analysis supporting Developer's inability to attract
tenants. The report is for informational purposes only and the City shall not be permitted
to disapprove the declaration of Economically Distress Year if the data submitted
supports either one of the following set of findings:
i. In the prior calendar year, the number of building permits for
commercial retail development in the San Gabriel Valley region of
Los Angeles County, California (including all cities and
unincorporated county territory) are less than 50% of the average
number of building permits issued during the prior 25 years, based
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on the annual report of the California Construction Industry
Research Board. If the number of building permits issued in any
calendar year are not available from the California Construction
Industry Research Board, then the City shall obtain them from any
other reliable source measuring the same data over the period; or
ii. Developer has made all commercially reasonable efforts, as
demonstrated by evidence submitted to the City, to secure tenancy
rates at or above 65% of the tenant-occupied building space.
The determination as to the existence of an Economically Distressed Year shall be made
by the City Manager within sixty (60) days of Developer's request for such a declaration
and shall be appealable in accordance with Irwindale Municipal Code Section 17.90.130.
In determining how long the Development Schedule will be extended in the event of an
Economically Distressed Year, the City shall consider any economic and market forecast
information provided in Developer's report and by staff.
3.5 Development Plan; Subsequent Development Approvals. The
Development Plan for the Project will require the processing of Subsequent
Development Approvals. The 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 in accordance with the
Existing Land Use Regulations. The parties acknowledge that subject to the Existing
Land Use Regulations, under no circumstances shall City be obligated in any manner to
approve any Subsequent Development Approval, or to approve any Subsequent
Development Approval with or without any particular condition, except that (i) the
Subsequent Development Approvals shall be generally consistent with the attached
Public Improvements, and Development Plan, and (ii) the density of the Project shall not
be increased by more than three percent (3%). However, unless otherwise requested
by Developer, City shall not, without good cause, amend or rescind any Subsequent
Development Approvals respecting the Property after such approvals have been
granted by the City. Processing of Subsequent Development Approvals or changes in
the Development Approvals or Development Plan made pursuant to Developer's
application shall not require an amendment to this Agreement.
This Agreement shall not prevent City from denying or conditionally approving any
application for a Subsequent Development Approval on the basis of the Existing Land
Use Regulations.
3.6 Reservation of Authority.
3.6.1 Limitations, Reservations and Exceptions. Notwithstanding
any other provision of this Agreement, the following Subsequent Land Use Regulations
shall apply to the Development of the Property:
(a) Processing fees and charges of every kind and nature
imposed by City to cover the estimated actual costs to City of processing applications
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for Subsequent Development Approvals or for monitoring compliance with any
Subsequent Development Approvals granted or issued.
(b) Procedural regulations consistent with this Agreement
relating to hearing bodies, petitions, applications, notices, findings, records, hearing,
reports, recommendations, appeals and any other matter of procedure.
(c) Changes adopted by the International Conference of
Building Officials, or other similar body, as part of the then most current versions of the
Uniform Building Code, Uniform Fire Code, Uniform Plumbing Code, Uniform Mechanical
Code, or National Electrical Code, or other such Uniform Codes, and also adopted
by City as Subsequent Land Use Regulations, if applicable City-wide.
(d) Regulations that may be in conflict with the Development Plan
or this Agreement, but which City determines are materially necessary to protect the
public health, safety, and welfare.
(e) Regulations that are not in conflict with the Development
Plan or this Agreement.
(f) Regulations that are in conflict with the Development Plan or
this Agreement, provided Developer has given written consent to the application of such
regulations to Development of the Property.
(g) Federal, State, County, and multi-jurisdictional laws and
regulations (the "Additional Regulations") which City is required to enforce as against
the Property or the Development of the Property, except if the Additional Regulations are
for the purpose of mitigating a significant or potentially significant impact that has already
been mitigated pursuant to the EIR.
(h) Subsequent Land Use Regulations applicable to regional or
other non-City development impact fees.
3.6.2 Modification or Suspension by Federal, State, County, or
Multi- Jurisdictional Law. In the event that Federal, State, County, or multi-jurisdictional
laws or regulations, enacted after the Effective Date of this Agreement, prevent or
preclude compliance with one or more of the provisions of this Agreement, such provisions
of this Agreement shall be modified or suspended as may be necessary to comply with
such Federal, State, County, or multi-jurisdictional laws or regulations, and 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 provision impractical to enforce.
3.7 Regulation by Other Public Agencies.
3.7.1 It is acknowledged by the parties that other public agencies
not subject to control by City may possess authority to regulate aspects of the
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Development of the Property, and this Agreement does not limit the authority of such
other public agencies.
3.7.2 The Developer shall apply in a timely manner for such other
permits and approvals as may be required from other governmental or quasi..
governmental agencies having jurisdiction over the Project as may be required for the
Development of, or provision of services to, the Project. The City shall provide the
Developer reasonable cooperation in Developer's efforts to obtain such permits and
approvals. The City and Developer shall cooperate and use reasonable efforts in
coordinating the implementation of the Development Plan with other public agencies, if
any, having jurisdiction over the Property or the Project.
3.8 Energy Efficient and Sustainable Building Design. All Project
buildings shall promote sustainable and energy efficient practices through compliance
with California Code of Regulations, Title 24. In addition, the Project shall maintain
highest standards of Development, including without limitation Developer's best efforts
to design the Project to meet or exceed the standards for a LEED Gold Certified
building (or equivalent techniques or designed used for the purpose of reduction of
energy use as approved by the Community Development Director in writing). Systems
which may be utilized would include solar panels and other alternative energy
technologies. Additionally, to reduce emissions, at all truck loading locations, power
plug-in stations shall be provided to reduce emissions from idling trucks.
3.9 Employment Outreach for Local Residents. A goal of the City with
respect to this Project and other major projects within the City is to foster employment
opportunities for Irwindale residents. To that end, Developer covenants that with
respect to the construction, operation and maintenance of the Project, the Developer
shall make reasonable efforts to cause all solicitations for full or part-time, new or
replacement, employment relating to the construction, operation and maintenance of the
Project to be advertised in such a manner as to target local City residents and shall
make other reasonable efforts at local employment outreach as the City shall approve.
Developer shall also notify the City of jobs available at the Project such that the City
may inform City residents of job availability at the Project. Developer will inform its
purchasers and lessees of the provisions of these requirements. Nothing in this
paragraph shall require Developer to offer employment to individuals who are not
otherwise qualified for such employment. Without limiting the generality of the
foregoing, the provisions of this Section 3.9 are not intended, and shall not be
construed, to benefit or be enforceable by any person whatsoever other than City.
3.10 Project Signage and Marketing. The parties intend that the Project will
become a regional facility and to this end exposure to nearby freeway corridors is
critical, and freeway signage will significantly increase sales. Accordingly, the City will
cooperate with Developer in a reasonable manner to locate and develop freeway sign
easements and signage, if reasonably available, for the purposes of advertising the
Project and/or any retail business occupying the Project. Nothing herein constitutes a
guarantee or warranty of the availability or location for such signage. Nor do any terms
of this Agreement limit or waive the City's discretion to approve/disapprove or condition
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any application for signage. Any applications for signage that may be submitted by
Developer shall be subject to all City codes and procedures and shall be processed in a
manner reasonably concurrent with Developer's final plans and entitlements for the
Project. Further Developer acknowledges that it may be required to secure approvals
and permits from other agencies that may have jurisdiction over freeway signage, such
as the California Department of Transportation ("CalTrans"). Developer shall be solely
responsible for securing any such approvals at its cost and City will reasonably
cooperate with Developer's efforts to secure same.
All proposed signage shall not adversely impact traffic circulation or create a
hazard to vehicular or pedestrian traffic, and measures shall be undertaken to construct
and maintain signage in an aesthetically attractive manner and reduce potential impacts
upon the visual character of the Property.
3.10.1 Monument Signage; Public Service Announcements. In
addition to other permitted Project signage, including 6 signs along Live Oak Avenue,
Developer shall install up to five "main" pylon signs advertising the Project and
businesses located within the Project, which sign(s) shall have overall or total
dimensions of no less than 25' x 46-10" (the "Main Sign(s)"). The Main Sign(s) shall be
freeway-oriented or oriented towards the planned major thoroughfares passing, or entry-
points to, the Project. Developer will dedicate at least 10% of the copy of the Main
Sign(s) to the word "Irwindale" in some iteration. At least 20% of the Main Sign shall be
dedicated as a digital, auto-changeable, full-color display (the "Digital Display"). Four
times per month, Developer shall allow the City to utilize 20% of the daily advertising
throughout the day of the Digital Display, meaning that out of every five messages
digitized onto the Digital Display at least one shall be dedicated to the City. Alternatively,
if the Main Sign(s) contain(s) multiple Digital Displays, the Developer has the option of
dedicating one such Display to the City, the area of which must be at least 10% of the
total Main Sign face. Acceptable Main Sign designs shall be substantially similar to
those depictions at Exhibit "F", particularly with respect the use of the word "Irwindale" on
the Main Sign. The logo for marketing materials shall include similar use of the word
"Irwindale". Modifications to the signage shall be subject to Section 9 of this Agreement.
Time dedicated on the Digital Display to the City shall be used for non-law
enforcement related Public Service announcements throughout. "Public Service
Announcements" pursuant to this Agreement shall be limited to City, City-related, or
other local agency social, ceremonial or governmental event announcements. The City
shall submit to Developer the text of the Public Service Announcements at least ten (10)
business days prior to the display of the Public Service Announcement. Developer, in its
sole discretion, shall determine design the Public Service Announcement to be
displayed. Nothing herein shall be deemed as requiring Developer to post any
advertisement for non-Project businesses or messages that would negatively impact
Project marketing. The Public Service Announcements shall be planned and designed
at City's sole cost, yet produced and installed on the Main Sign at Developer's sole cost,
in cooperation with City. City shall have sole discretion to approve the Public Service
Announcements.
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3.10.2 Light & Glare. Developer shall comply with State law regarding
the limitation of light or glare or such other standards as adopted by the Outdoor
Advertising Association of America, Inc. (OAAA), including but not limited to, the 0.3 foot-
candles limitation over ambient light levels and ensuring additional flexibility in further
reducing such maximum light level standard given the lighting environment upon request
by the City's Development Services Director, the obligation to have automatic diming
capabilities, as well as providing the City's Development Services Director or designee
with a designated Developer employee's phone number and/or email address for
emergencies or complaints that will be monitored 24 hours a day/7 days per week. Upon
any reasonable complaint by the City's Planning Officer or designee, Developer shall
perform a brightness measurement of the display using OAAA standards, or such lower
level given the lighting environment, and provide City with the results of same within 5
days of the City's complaint. Developer shall dim the display to the appropriate setting
immediately upon the conclusion of any such measurement that concluding that the light
standards were exceeded.
3.10.3 Historical Plaque. Developer agrees to place one stand-alone
and free-standing historical plaque at a central location in the Project. Said plaque shall
commemorate the Property's prior dedication to the Irwindale Speedway, conversion to
the Project, and all City Council members involved in such developments. The final
message and design of the historical plaque shall be mutually-agreed upon between the
City Council and the Developer, and approved at a City Council meeting, prior to
installation. The parties agree to set an objective of completing the historical plaque
process no later than sixty (60) days following issuance of the Certificate of Completion.
3.11 Development Costs & Fees. Developer shall be solely responsible for all
Development costs associated with the Project, including without limitation design, land
use entitlements, permitting, CEQA review, construction, rolling stock, equipment,
operational costs, advertising and public relations and information and City staff and
consultant expenses related to the Project. Project Development and operations will
entail extensive, significant costs and capital expenditures due, without limitation, to the
Project's size, the magnitude of necessary environmental mitigation measures, need for
heavy equipment and complex design and infrastructural elements. Currently, Project
costs are expected to approximate one-hundred, thirty four million - Dollars
($134,000,000). Further, Developer shall be responsible for paying all of the customary
and ordinary fees and costs imposed by the City on the development of a commercial
facility like the Project as set forth on the "Schedule of Estimated City Fees" attached
hereto as Exhibit "E".
3.11.1 Administrative Costs. Developer has agreed to pay the City
twenty-thousand dollars ($20,000.00) towards the City's staff time and legal fees for the
preparation and negotiation of this Development Agreement ("Administrative Cost
Reimbursement"). Developer has paid the City three thousand dollars ($3,000) of this
Administrative Cost Reimbursement, and Developer will pay the balance of the
Administrative Cost Reimbursement within no later than fifteen (15) days of this
Agreement's approval by the City Council.
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3.12 Prevailing Wages. Developer's purchase price for the Property and cost
of Developing the Project and constructing all of the on-site and off-site improvements, if
any, at or about the Property required to be constructed for the Project shall be borne by
Developer. Developer is aware of the laws of the State governing the payment of
prevailing wages on public projects and will comply with same and will indemnify City in
the event Developer fails to do so. As the City is not providing any direct or indirect
financial assistance to Developer, the Project should not be considered to be a "public
work" "paid for in whole or in part out of public funds," as described in California Labor
Code Section 1720. Accordingly, it is believed by the parties that Developer is not
required to pay prevailing wages in connection with any aspect of the Development or
the construction of the Project. However, to the extent that (contrary to the parties'
intent) it is determined that Developer was required to pay prevailing wage and has not
paid prevailing wages for any portion of the Project, Developer shall defend and hold
the City (which, for purposes of this Section, shall include its related agencies, officers,
employees, agents and assigns) harmless from and against any and all increase in
construction costs, or other liability, loss, damage, costs, or expenses (including
reasonable attorneys' fees and court costs) arising from or as a result of any action or
determination that Developer failed to pay prevailing wages in connection with the
construction of the Project. City shall reasonably cooperate with Developer regarding
any action by Developer hereunder challenging any determination that the Project is
subject to the payment of prevailing wages. Notwithstanding the foregoing, the City
retains the right to settle or abandon the matter without Developer's consent as to the
City's liabilities or rights only, but should it do so, City shall waive the indemnification
herein provided such waiver occurs prior to the issuance of any judgment in the matter.
3.13 Public Improvements. Off-site Public Improvements shall be constructed
or paid for by Developer as further described in Exhibit "C". In addition, and
notwithstanding any provision herein to the contrary, the City shall retain the right to
condition any Subsequent Development Approvals to require Developer to dedicate
necessary land and/or to pay for the required Public Improvements ("Exactions") at such
time as City shall determine subject to the following conditions:
3.13.1 The dedication, payment or construction must be to alleviate
an impact caused by the Project or be of benefit to the Project;
3.13.2 The timing of the Exaction should be reasonably related to the
phasing of the Development of the Project and said Public Improvements shall be
phased to be commensurate with the logical progression of the Project Development as
well as the reasonable needs of public; and
3.13.3 If Developer is required by this Agreement and/or the
Development Plan to construct any Public Improvements that will be dedicated to the
City or any other public agency upon completion, Developer shall perform such work in
the same manner and subject to the same construction standards as would be
applicable to the City or such other public agency should it have undertaken such
construction work. The City desires that required Public Improvements generally be
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constructed in the early portion of the Development cycle, with work on such Public
Improvements commencing not later than the start of on-site Project grading.
3.14 Fees, Taxes and Assessments. During the term of this Agreement, the
City shall not, without the prior written consent of Developer, impose any additional
fees, taxes or assessments on all or any portion of the Project, except such fees, taxes
and assessments as are described in or required by this Development Agreement
and/or the Development Plan. This Development Agreement shall not prohibit the
application of fees, taxes or assessments as follows:
3.14.1 Developer, or Developer's Project tenants, shall be obligated to
pay those fees, taxes or City assessments which exist as the Effective Date or are
included in the Development Plan and any increases in same, as provided herein;
3.14.2 Developer, or Developer's Project tenants, shall be obligated to
pay any fees or taxes, and increases thereof, imposed on a City-wide basis such as
business license fees or taxes, sales or use taxes, transient occupancy taxes, utility
taxes, and public safety taxes;
3.14.3 Developer, or Developer's Project tenants, shall be obligated to
pay any future fees or assessments imposed on an area-wide basis (such landscape
and lighting assessments and community services assessments), provided that
Developer reserves its right to protest the establishment or amount of any such fees or
assessments through the method prescribed by law;
3.14.4 Developer, or Developer's Project tenants, shall be obligated to
pay any fees imposed pursuant to any assessment district established within the Project
otherwise proposed or consented to by Developer;
3.14.5 Developer, or Developer's Project tenants, shall be obligated to
pay any fees imposed pursuant to any Uniform Code.
3.14.6 Developer, or Developer's Project tenants, shall be obligated to
pay any utility fees and charges, including amended rates thereof, for City services such
as electrical utility charges, water rates, and sewer rates.
3.15 Inconsistencies. It is expressly agreed that in the event of any
inconsistency between the provisions or conditions of the Existing Land Use
Regulations and the provisions of this Agreement, the provisions of this Agreement shall
govern. The conditions of such Existing Land Use Regulations shall be interpreted
insofar as possible to prevent such inconsistency, and in the event this Agreement is
silent concerning an issue, the conditions of the Existing Land Use Regulations shall
govern. As between several instruments and regulations governing the Project, in the
event of a clear and explicit conflict which cannot be resolved through interpretation, the
following interpretive priorities shall apply: (i) the terms of this Agreement shall prevail
over the provisions of the Existing Land Use Regulations; (ii) the terms of the Existing
Development Approvals shall prevail over the terms of the Existing Land Use
Regulations, except where such Existing Land Use Regulations are legally preemptive;
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and (iii) the terms of the Existing Development Approvals shall take priority over the
provisions of the Environmental Impact Report ("EIR") approved in conjunction with the
Project, except where the EIR is legally preemptive.
3.16 Infrastructure Financing. If the Developer undertakes public
infrastructure financing, such as Mello-Roos or community facilities districts, City will
cooperate fully in such endeavors and will process any related applications as
expeditiously as possible.
4. REVIEW FOR COMPLIANCE.
4.1 Annual Review. The City Council 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 ("Annual Review"). No
failure on part of City to conduct or complete an Annual Review as provided herein
shall have any impact on the validity of this Agreement, nor shall it be deemed a breach
on the part of Developer. The cost of the Annual Review shall be borne by Developer
and Developer shall pay the actual and reasonable costs incurred by the City for such
review.
4.2 Special Review. The City Council may, in its sole and absolute
discretion, order a special review of compliance with this Agreement at any time at
City's sole cost ("Special Review"). Developer shall cooperate with the City in the
conduct of such Special Reviews.
4.3 Procedure. Each party shall have a reasonable opportunity to assert
matters which it believes have not been undertaken in accordance with the Agreement,
to explain the basis for such assertion, and to receive from the other party a justification
of its position on such matters. The procedure for an Annual Review or Special
Review shall be as follows:
4.3.1 As part of either an Annual Review or Special Review, within
ten (10) days of a request for information by the City, the Developer shall deliver to the
City all information and supporting documents reasonably requested by City (i) regarding
the Developer's performance under this Agreement demonstrating that the Developer
has complied in good faith with the terms of this Agreement, and (ii) as required by the
Existing Land Use Regulations.
4.3.2 The City Manager, or his/her designee, shall prepare and
submit to Developer a written report on the performance of the Project and identify any
perceived deficiencies in Developer's performance of this Agreement. The Developer
may submit written responses to the report and Developer's written response shall be
included in the City Manager's report. If the City Manager determines that the Developer
has substantially complied with the terms and conditions of this Agreement, the Annual
or Special Review shall be concluded.
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4.3.3 If any deficiencies are noted, or if requested by a
Councilmember, a public hearing shall be held before the City Council at which the
Council will review the City Manager's report. The report to Council shall be made at a
regularly-scheduled City Council meeting occurring as soon as possible, subject to the
requirements of the Brown Act, after the commencement of the Annual or Special
Review process outlined in Section 4.3.1. If the City Council finds and determines,
based on substantial evidence, that the Developer has not substantially complied with
the terms and conditions of this Agreement for the period under review, the City may
declare a default by the Developer in accordance with Article 5.
4.3.4 Neither party hereto shall be deemed in breach if the reason for
non-compliance is due to a "force majeure" as defined in, and subject to the provisions
of, Section 10.10.
4.4 Certificate of Agreement Compliance. If, at the conclusion of an
Annual Review or a 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 Annual Review or
Special Review and based upon the information known or made known to the City
Manager, Planning Commission, and City Council that (i) this Agreement remains in effect
and (ii) Developer is in compliance. The Certificate, whether issued after an Annual Review
or Special Review, shall be in recordable form, shall contain information necessary to
communicate constructive record notice of the finding of compliance. Developer record the
Certificate with the County Recorder. Additionally, Developer may at any time request
from the City a Certificate stating, in addition to the foregoing, which obligations under
this Agreement have been fully satisfied with respect to the Property, or any lot or parcel
within the Property.
4.5 Review Process Not a Prerequisite to Declaring a Default. Neither the
Annual Review nor Special Review procedure is a prerequisite to either party declaring a
default and initiating the default and cure procedure in Article 5. In other words, either party
may declare a default at any time without first undertaking the Annual Review or Special
Review process.
4.6 Public Hearings. The public hearing prescribed by Section 4.3.3 is
independent of, and in addition to, any further hearing procedures prescribed in Article 5.
Thus, if the City Council finds that the Developer has not substantially complied with the
terms and conditions of this Agreement as part of a review process pursuant to Section
4.3.3 and determines to declare a default, the City Council is still required to follow the
notice/cure process (Section 5.2) and the termination hearing process (Section 5.4)
before terminating this Agreement.
5. DEFAULT AND REMEDIES.
5.1 Specific Performance Available. The parties acknowledge and agree
that other than the termination of this Agreement pursuant to Section 5.2, specific
performance is the only remedy available for the enforcement of this Agreement and
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knowingly, intelligently, and willingly waive any and all other remedies otherwise
available in law or equity. Accordingly, and not by way of limitation, and except as
otherwise provided in this Agreement, Developer shall not be entitled to any money
damages from City by reason of any default under this Agreement. Further, Developer
shall not bring an action against City nor obtain any judgment for damages for a
regulatory taking, inverse condemnation, unreasonable exactions, reduction in value of
property, delay in undertaking any action, or asserting any other liability for any matter
or for any cause which existed or which the Developer knew of or should have known of
prior to the time of entering this Agreement, Developer's sole remedies being as
specifically provided above. Developer acknowledges that such remedies are adequate
to protect Developer's interest hereunder and the waiver made herein is made in
consideration of the obligations assumed by the City hereunder. The Developer's
waiver of the right to recover monetary damages shall not apply to any damages or
injuries to a third party caused by the City's negligence.
5.2 Declaration of Default & Opportunity to Cure.
5.2.1 Rights of Non-Defaulting Party after Default. The parties
acknowledge that both parties shall have hereunder all legal and equitable remedies as
provided by law following the occurrence of a default or to enforce any covenant or
agreement herein except as provided in Section 5.1 above. Before this Agreement may
be terminated or action may be taken to obtain judicial relief the party seeking relief
("Non-Defaulting Party") shall comply with the notice and cure provisions of this Section
5.2.
5.2.2 Notice and Opportunity to Cure. A Non-Defaulting Party in its
discretion may elect to declare a default under this Agreement in accordance with the
procedures hereinafter set forth for any failure or breach of the other party ("Defaulting
Party") to perform any material duty or obligation of the Defaulting Party under the terms
of this Agreement. However, the Non-Defaulting Party must provide written notice to the
Defaulting Party setting forth the nature of the breach or failure and the actions, if any,
required by the Defaulting Party to cure such breach or failure (the "Default Notice").
The Defaulting Party shall be deemed in Default under this Agreement, if the breach or
failure can be cured, but the Defaulting Party has failed to take such actions and cure
such default within thirty (30) days after the date of such notice or ten (10) days for
monetary defaults (or such lesser time as may be specifically provided in this
Agreement). However, if such non-monetary Default cannot be cured within such thirty
(30) day period, and if and, as long as the Defaulting Party does each of the following:
1. Notifies the Non-Defaulting Party in writing with a reasonable
explanation as to the reasons the asserted default is not curable within the thirty (30)
day period;
2. Notifies the Non-Defaulting Party of the Defaulting Party's
proposed cause of action to cure the default;
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3. Promptly commences to cure the default within the thirty (30)
day period;
4. Makes periodic reports to the Non-Defaulting Party as to the
progress of the program of cure; and
. Diligently prosecutes such cure to completion.
Then the Defaulting Party shall not be deemed in breach of this Agreement.
5.3 Termination Notice. Upon receiving a Default Notice, should the
Defaulting Party fail to timely cure any default, or fail to diligently pursue such cure as
prescribed above, the Nondefaulting Party may seek termination of this Agreement, in
which case the Nondefaulting Party shall provide the Defaulting Party with a written
notice of intent to terminate this Agreement ("Termination Notice"). The Termination
Notice shall state that the Nondefaulting Party will elect to terminate this Agreement
within thirty (30) days and state the reasons therefor (including a copy of any specific
charges of default or a copy of the Default Notice) and a description of the evidence
upon which the decision to terminate is based. Once the Termination Notice has been
issued, the Nondefaulting Party's election to terminate this Agreement will only be
rescinded if so determined by the City Council pursuant to Section 5.4, below.
5.4 Hearing Opportunity Prior to Termination. If Developer is the
Defaulting Party pursuant to Section 5.3 above, then the City's Termination Notice to
Developer shall additionally specify that Developer has the right to a hearing prior to the
City's termination of any Agreements ("Termination Hearing"). The Termination Hearing
shall be scheduled as an open public hearing item at a regularly-scheduled City Council
meeting within thirty (30) days of the Termination Notice, subject to any legal
requirements including but not limited to the Ralph M. Brown Act, Government Code
Sections 54950-54963. At said Termination Hearing, Developer shall have the right to
present evidence to demonstrate that it is not in default and to rebut any evidence
presented in favor of termination. Based upon substantial evidence presented at the
Termination Hearing, the Council may, by adopted resolution, act as follows:
1. Decide to terminate this Agreement; or
2. Determine that Developer is innocent of a default and,
accordingly, dismiss the Termination Notice and any charges of default; or
3. Impose conditions on a finding of default and a time for cure,
such that Developer's fulfillment of said conditions will waive or cure any default.
Findings of a default or a conditional default must be based upon substantial evidence
supporting the following two findings: (i) that a default in fact occurred and has
continued to exist without timely cure, and (ii) that such default has caused or will cause
a material breach of this Agreement and/or a substantial negative impact upon public
health, safety and welfare, the environment, or such other interests that the City and
public may have in the Project.
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5.5 Rights and Duties Following Termination. Upon the termination of this
Agreement, no party shall have any further right or obligation hereunder except with
respect to (i) any obligations to have been performed prior to said termination, (ii) any
default in the performance of the provisions of this Agreement which has occurred prior
to said termination, or (iii) the indemnification provisions of Article 6. Termination of this
Agreement shall not affect either party's rights or obligations with respect to any
Development Approval granted prior to such termination.
5.6 Waiver of Breach. By not challenging any Development Approval within
90 days of the action of City enacting the same, Developer shall be deemed to have
waived any claim that any condition of approval is improper or that the action, as
approved, constitutes a breach of the provisions of this Agreement.
5.7 Interest on Monetary Default. In the event Developer fails to perform
any monetary obligation under this Agreement, Developer shall pay interest thereon at
the rate of ten percent (10%) per annum from and after the due date of said monetary
obligation until payment is actually received by City.
6. THIRD PARTY LITIGATION & INDEMNITIES.
6.1 Indemnity Obligations on Third-Party Claims or Litigation.
6.1.1 The Developer shall indemnify the City and its elected boards,
commissions, officers, agents and employees and will defend, hold and save them and
each of them harmless from any and all third-party Claims or Litigation (including but not
limited to attorneys' fees and costs) related to the Project or construction activities in
furtherance of the Project against the City and shall be responsible for any judgment
arising therefrom.
6.1.2 The City shall provide the Developer with notice of the
pendency of such Claims or Litigation within ten (10) days of being served or otherwise
notified of such Claims or Litigation and shall request that the Developer defend such
action. The Developer may utilize the City Attorney's office or use legal counsel of its
choosing, but shall reimburse the City for any necessary legal cost incurred by City. In
all cases, City shall have the right to utilize the City Attorney's office in any legal action.
The Developer shall provide a deposit in the amount of 100% of the City's estimate, in its
sole and absolute discretion, of the cost of litigation, including the cost of any award of
attorney's fees. If the Developer fails to provide the deposit, and after compliance with
the provision of Section 5, the City may abandon the action and the Developer shall pay
all costs resulting therefrom and City shall have no liability to the Developer. The
Developer's obligation to pay the cost of the action, including judgment, shall extend until
judgment. After judgment in a trial court, the parties must mutually agree as to whether
any appeal will be taken or defended. City agrees that it shall fully cooperate with the
Developer in the defense of any matter in which the Developer is defending and/or
holding the City harmless.
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6.1.3 The Developer shall have the right, within the first 30 days of
the service of the complaint, in its reasonable discretion, to determine that it does not
want to defend the Claims or Litigation, in which case the City shall allow the Developer
to settle the Claims or Litigation on whatever terms the Developer determines, in its
reasonable discretion, but Developer shall confer with City before acting and cannot bind
City. In that event, the Developer shall be liable for any costs incurred by the City up to
the date of settlement but shall have no further obligation to the City beyond the payment
of those costs. In the event of an appeal, or a settlement offer, the parties shall confer in
good faith as to how to proceed. Notwithstanding the Developer's indemnity for Claims
or Litigation, the City retains the right to settle any Claims or Litigation brought against it
in its sole and absolute discretion and the Developer shall remain liable except as
follows: (i) the settlement would reduce the scope, density or intensity of the Project by
5% or more, and (ii) the settlement would reduce more than one retail operation (i.e.,
retail space) planned for the Project. In such case the City may still settle the Claims or
Litigation but shall then be responsible for its own litigation expense but shall bear no
other liability to the Developer.
6.2 Hold Harmless: Developer's Construction and Other Activities. The
Developer shall defend, save and hold the City and its elected and appointed boards,
commissions, officers, agents, and employees harmless from any and all claims, costs
(including attorneys' fees) and liability for any damages, personal injury or death, which
may arise, directly or indirectly, from the Developer's or the Developer's agents,
contractors, subcontractors, agents, or employees' Project construction activities and
operations under this Agreement, whether such Project construction activities and
operations be by the Developer or by any of the Developer's agents, contractors or
subcontractors or by any one or more persons directly or indirectly employed by or
acting as agent for the Developer or any of the Developer's agents, contractors or
subcontractors. Nothing herein shall be construed to mean that the Developer shall
hold the City harmless and/or defend it from any claims arising from, or alleged to arise
from, the sole negligence or gross or willful misconduct of the City's officers, employees,
agents, contractors of subcontractors.
6.3 Loss and Damage. City shall not be liable for any damage to property of
Developer or of others located on the Property, nor for the loss of or damage to any
property of Developer or of others by theft or otherwise. City shall not be liable for any
injury or damage to persons or property resulting from fire, explosion, steam, gas,
electricity, water, rain, dampness or leaks from any part of the Property or from the
pipes or plumbing, or from the street, or from any environmental or soil contamination or
hazard, or from any other latent or patent defect in the soil, subsurface or physical
condition of the Property, or by any other cause of whatsoever nature. Nothing herein
shall be construed to mean that the Developer shall bear liability for the sole negligence
or gross or willful misconduct of the City's officers, employees, agents, contractors of
subcontractors.
6.4 Non-liability of City Officers and Employees. No official, agent,
contractor, or employee of the City shall be personally liable to the Developer, or any
successor in interest, in the event of any default or breach by the City or for any amount
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which may become due to the Developer or to its successor, or for breach of any
obligation of the terms of this Agreement.
6.5 Conflict of Interest. No officer or employee of the City shall have any
financial interest, direct or indirect, in this Agreement nor shall any such officer or
employee participate in any decision relating to this Agreement which affects the
financial interest of any corporation, partnership or association in which he or she is,
directly or indirectly, interested, in violation of any state statute or regulation.
6.6 Survival of Indemnity Obligations. All indemnity provisions set forth in
this Agreement shall survive termination of this Agreement for any reason other than a
default by City.
7. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit Developer,
in any manner, at Developer's sole discretion, from encumbering the Property or any
portion thereof or any improvement thereon by any mortgage, deed of trust or other
security device securing financing with respect to the Property. City acknowledges that
the lenders providing such financing may require certain Agreement interpretations and
modifications and City agrees upon request, from time to time, to meet with Developer
and representatives of such lenders to negotiate in good faith any such request for
interpretation or modification. Subject to compliance with applicable laws, City will not
unreasonably withhold its consent to any such requested interpretation or modification
provided City determines such interpretation or modification is consistent with the intent
and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the
following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on
the Property made in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering
the Property, or any part thereof, which Mortgagee has submitted a request in writing to
the City in the manner specified herein for giving notices, shall be entitled to receive
written notification from City of any default by Developer in the performance of
Developer's obligations under this Agreement.
(c) If City timely receives a request from a Mortgagee
requesting a copy of any notice of default given to Developer under the terms of this
Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of
sending the notice of default to Developer. The Mortgagee shall have the right, but not
the obligation, to cure the default during the period that is the longer of (i) the remaining
cure period allowed such party under this Agreement, or (ii) sixty (60) days.
(d) Any Mortgagee who comes into possession of the Property, or
any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu
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of such foreclosure, shall take the Property, or part thereof, subject to the terms of this
Agreement. Notwithstanding any other provision of this Agreement to the contrary, no
Mortgagee shall have an obligation or duty under this Agreement to perform any of
Developer's obligations or other affirmative covenants of Developer hereunder, or to
guarantee such performance; except that (i) to the extent that any covenant to be
performed by Developer is a condition precedent to the performance of a covenant by
City, the performance thereof shall continue to be a condition precedent to City's
performance hereunder, and (ii) in the event any Mortgagee seeks to develop or use
any portion of the Property acquired by such Mortgagee by foreclosure, deed of trust,
or deed in lieu of foreclosure, such Mortgagee shall strictly comply with all of the terms,
conditions and requirements of this Agreement and the Development Plan applicable to
the Property or such part thereof so acquired by the Mortgagee.
8. INSURANCE.
8.1 Types of Insurance.
8.1.1 Public Liability Insurance. Prior to commencement and until
completion of construction by Developer on the Property, Developer shall, at its sole cost
and expense, keep or cause to be kept in force, for the mutual benefit of City and
Developer, comprehensive broad form general public liability insurance against claims
and liability for personal injury or death arising from the use, occupancy, disuse or
condition of the Property, improvements or adjoining areas or ways, affected by such use
of the Property or for property damage. Such policy shall provide protection of a least
Five Million Dollars ($5,000,000) for bodily injury or death to any one person, at least
Five Million Dollars ($5,000,000) for any one accident or occurrence, and at least Five
Million Dollars ($5,000,000) for property damage, which limits shall be subject to such
increases in amount as City may reasonably require from time to time.
8.1.2 Builder's Risk Insurance. Prior to commencement and until
completion of construction by Developer on the Property, Developer shall procure and
shall maintain in force, or caused to be maintained in force, "all risks" builder's risk
insurance including vandalism and malicious mischief, covering improvements in place
and all material and equipment at the job site furnished under contract, but excluding
contractor's, subcontractor's, and construction manager's tools and equipment and
property owned by contractor's or subcontractor's employees, with limits in accordance
with Section 8.1.1 above.
8.1.3 Worker's Compensation. Developer shall also furnish or cause
to be furnished to City evidence reasonably satisfactory to it that any contractor with
whom Developer has contracted for the performance of any work for which Developer is
responsible hereunder carries workers' compensation insurance as required by law.
8.1.4 Automobile liability insurance. Consultant shall maintain
automobile insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of the Consultant arising out
of or in connection with Work to be performed under this Agreement, including coverage
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for any owned, hired, non-owned or rented vehicles, in an amount not less than
1,000,000 combined single limit for each accident.
8.1.5 Other Insurance. Developer may procure and maintain any
insurance not required by this Agreement, but all such insurance shall be subject to all of
the provisions hereof pertaining to insurance and shall be for the benefit of City and
Developer.
8.2 Insurance Policy Form, Sufficiency, Content and Insurer. All
insurance required by express provisions hereof shall be carried only by responsible
insurance companies licensed and admitted to do business by California, rated "A" or
better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the
Federal Register, and only if they are of a financial category Class VIII or better, unless
waived by City. All such policies shall be non-assessable and shall contain language, to
the extent obtainable, to the effect that (i) any loss shall be payable notwithstanding any
act of negligence of City or Developer that might otherwise result in the forfeiture of the
insurance, (ii) the insurer waives the right of subrogation against City and against City's
agents and representatives; (iii) the policies are primary and noncontributing with any
insurance that may be carried by City; and (iv) the policies cannot be canceled or
materially changed except after thirty (30) days' written notice by the insurer to City or
City's designated representative. Developer shall furnish City with copies of all such
policies promptly on receipt of them or with certificates evidencing the insurance. City
shall be named as an additional insured on all policies of insurance required to be
procured by the terms of this Agreement. Moreover, the insurance policy must specify
that where the primary insured does not satisfy the self-insured retention, any additional
insured may satisfy the self-insured retention. In the event the City's Risk Manager
determines that the use, activities or condition of the Property, improvements or
adjoining areas or ways, affected by such use of the Property under this Agreement
creates an increased or decreased risk of loss to the City, Developer agrees that the
minimum limits of the insurance policies required by Section 8.1 may be changed
accordingly upon receipt of written notice from the City's Risk Manager; provided that
Developer shall have the right to appeal a determination of increased coverage to the
City Council of City within ten (10) days of receipt of notice from the City's Risk
Manager.
8.3 Failure to Maintain Insurance and Proof of Compliance. Developer
shall deliver to City, in the manner required for notices, copies of certificates of all
insurance policies required hereunder together with evidence satisfactory to City of
payment required for procurement and maintenance of each policy within the following
time limits:
(a) For insurance required above, within thirty (30 days) after
the Effective Date.
(b) For any renewal or replacement of a policy already in
existence, at least ten (10) days before the expiration or termination of the existing
policy.
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If Developer fails or refuses to procure or maintain insurance as required hereby
or fails or refuses to furnish City with required proof that that insurance has been
procured and is in force and paid for, such failure or refusal shall be a default
hereunder.
8.4 Waiver of Subrogation. Developer agrees that it shall not make any
claim against, or seek to recover from City or its agents, servants, or employees, for any
loss or damage to Developer or to any person or property, except as specifically
provided hereunder and Developer shall give notice to any insurance carrier of the
foregoing waiver of subrogation, and obtain from such carrier, a waiver of right to
recovery against City, its agents and employees.
9. AMENDMENT AND MODIFICATION OF DEVELOPMENT AGREEMENT.
9.1 Initiation of Amendment. Either party may propose an amendment to
this Agreement.
9.2 Procedure. Except as set forth in Section 9.4 below, the procedure for
proposing and adopting an amendment to this Agreement shall be the same as the
procedure required for entering into this Agreement in the first instance, and meet the
requirements of the Development Agreement Statute § 65867.
9.3 Consent. Except as expressly provided in this Agreement, no
amendment to all or any provision of this Agreement shall be effective unless set forth in
writing and signed by duly authorized representatives of each of the parties hereto and
recorded in the Official Records of Los Angeles County.
9.4 Minor Modifications.
9.4.1 Flexibility Necessary. The provisions of this Agreement require
a close degree of cooperation between the City and the Developer. Implementation of
the Project may require minor modifications of the details of the Development Plan and
affect the performance of the parties under this Agreement. The anticipated refinements
to the Project and the Development of the Property may demonstrate that clarifications to
this Agreement and the Existing Land Use Regulations are appropriate with respect to
the details of performance of the City and the Developer. The parties desire to retain a
certain degree of flexibility with respect to those items covered in general terms under
this Agreement. Therefore, non-substantive and procedural modifications, as described
in Section 9.4.2 below, of the Development Plan shall not require amendment of this
Agreement.
9.4.2 Non-Material Changes. A modification will be deemed non-
substantive, non-material, and/or procedural if it does not result in a material change in
fees, maximum building density, maximum intensity of use, permitted uses, the
maximum height and size of buildings, the reservation or dedication of land for public
purposes, or the improvement and construction standards and specifications for the
Project. A "non-material change" is generally one that does not change the standard by
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ten percent (10%) or more. For example, for a height limit of 20 feet, a change of less
than two feet is deemed non-material. Where it is unclear if a change is non-material,
the Community Development Director may, in light of all Building Code standards and
the relative physical impact of the proposed change to the overall Project, make the
determination as to whether the proposed change is material or non-material. For
example, subject to Building Code requirements, design changes to color, facade finish
textures or surfaces, minor changes to height, landscaping or building configuration, or
type of construction materials will generally be deemed "non-material" because they do
not impact the overall character of the Project or adversely affect adjacent properties.
The Developer may appeal the determination of the Community Development Director
pursuant to this subsection 9.4.2 to the City Council within 20 days of receiving such
determination in writing, in accordance with the provisions of 17.90.130.
9.4.3 Hearing Rights Protected. Notwithstanding the foregoing, City
will process any change to this Agreement consistent with state law and will hold public
hearings thereon if so required by state law and the parties expressly agree nothing
herein is intended to deprive any party or person of due process of law.
9.5 Effect of Amendment to Development Agreement. Except as
expressly set forth in any such amendment, an amendment to this Agreement will not
alter, affect, impair, modify, waive, or otherwise impact any other rights, duties, or
obligations of either party under this Agreement.
10. MISCELLANEOUS PROVISIONS.
10.1 Recordation of Agreement This Agreement shall be recorded with the
County Recorder by the City Clerk within the period required by Section 65868.5 of the
Government Code. Amendments approved by the parties, and any cancellation, shall be
similarly recorded.
10.2 Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties with respect to the subject matter set forth
herein, and there are no oral or written representations, understandings or ancillary
covenants, undertakings or agreements which are not contained or expressly referred to
herein. No testimony or evidence of any such representations, understandings or
covenants shall be admissible in any proceeding of any kind or nature to interpret or
determine the terms or conditions of this Agreement.
10.3 Severability. If any term, provision, covenant or condition of this
Agreement shall be determined invalid, void or unenforceable, then this Agreement
shall terminate in its entirety, unless the parties otherwise agree in writing, which
agreement shall not be unreasonably withheld.
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
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Speedway Outlets Shopping Center
1017711.1
hereto, and the rule of construction to the effect that ambiguities are to be resolved
against the drafting party or in favor of City shall not be employed in interpreting this
Agreement, all parties having been represented by counsel in the negotiation and
preparation hereof.
10.5 Section Headings. All section headings and subheadings are inserted
for convenience only and shall not affect any construction or interpretation of this
Agreement.
10.6 Singular and Plural. As used herein, the singular of any word includes
the plural.
10.7 Time of Essence. Time is of the essence in the performance of the
provisions of this Agreement as to which time is an element.
10.8 Waiver. Failure of 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 for the parties and their successors and assigns. No
other person shall have any right of action based upon any provision of this Agreement.
10.10 Force Majeure. Neither party shall be deemed to be in default where
failure or delay in performance of any of its obligations under this Agreement is caused
by earthquakes, other acts of God, fires, wars, terrorism, riots or similar hostilities,
strikes and other labor difficulties beyond the party's control (including the party's
employment force), government regulations, court actions (such as restraining orders or
injunctions), or other causes beyond the party's reasonable control. If any such events
shall occur, the term of this Agreement and the time for performance shall be extended
for the duration of each such event, provided that the term of this Agreement shall not be
extended under any circumstances for more than one (1) year.
10.11 Mutual Covenants. The covenants contained herein are mutual
covenants and also constitute conditions to the concurrent or subsequent performance
by the party benefited thereby of the covenants to be performed hereunder by such
benefited party.
10.12 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.
10.13 Estoppel Certificates. Either party (or a Mortgagee under Article 7) may
at any time deliver written notice to the other party requesting an Estoppel Certificate
stating:
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Speedway Outlets Shopping Center
1017711.1
A. The Agreement is in full force and effect and is a binding obligation
of the parties;
B. The Agreement has not been amended or modified either orally or
in writing or, if so amended, identifying the amendments; and
C. There are no existing defaults under the Agreement to the actual
knowledge of the party signing the Estoppel Certificate.
A party receiving a request for an Estoppel Certificate shall provide a signed certificate
to the requesting party within thirty (30) days after receipt of the request. The City
Manager may sign Estoppel Certificates on behalf of the City. An Estoppel Certificate
may be relied on by assignees and Mortgagees.
10.14 Covenant Not To Sue. The parties to this Agreement, and each of them,
agree that this Agreement and each term hereof is legal, valid, binding, and
enforceable. The parties to this Agreement, and each of them, hereby covenant and
agree that each of them will not commence, maintain, or prosecute any claim,
demand, cause of action, suit, or other proceeding against any other party to this
Agreement, in law or in equity, or based on any allegation or assertion in any such
action, that this Agreement or any term hereof is void, invalid, or unenforceable.
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, on the one hand, and the holder of a legal or equitable
interest in such property and as future holder of fee title to such property, on the other
hand. City agrees that by its approval of, and entering into, this Agreement that it is not
taking any action which would transform this private Development into a "public work"
project, and that nothing herein shall be interpreted to convey upon Developer any
benefit which would transform Developer's private project into a public work project, it
being understood that this Agreement is entered into by City and Developer upon the
exchange of consideration described in this Agreement, including the Recitals to this
Agreement, and that City is receiving by and through this Agreement the full measure of
benefit in exchange for the burdens placed on Developer by this Agreement, including
but not limited to Developer's obligation to provide the public improvements set forth
herein.
10.16 Further Actions and Instruments. Each of the parties shall cooperate
with and provide reasonable assistance to the other to the extent contemplated here
under 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
-34.- DEVELOPMENT AGREEMENT
Speedway Outlets Shopping Center
1017711.1
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 and to fulfill the provisions of this Agreement or to evidence or
consummate the transactions contemplated by this Agreement.
10.17 Eminent Domain. No provision of this Agreement shall be construed to
limit or restrict the exercise by City of its power of eminent domain.
10.18 Attorney's Fees. If either party to this Agreement is required to initiate or
defend litigation against the other party, the prevailing party in such action or
proceeding, in addition to any other relief which may be granted, whether legal or
equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall include
attorney's fees on any appeal, and, in addition, a party entitled to attorney's fees shall
be entitled to all other reasonable costs for investigating such action, taking depositions
and discovery and all other necessary costs the court allows which are incurred in such
litigation. All such fees shall be deemed to have accrued on commencement of such
action and shall be enforceable whether or not such action is prosecuted to a final
judgment.
10.19 Corporate Authority. The person(s) executing this Agreement on behalf
of each of the parties hereto represent and warrant that (i) such party, if not an
individual, is duly organized and existing, (ii) they are duly authorized to execute and
deliver this Agreement on behalf of said party, (iii) by so executing this Agreement
such party is formally bound to the provisions of this Agreement, and (iv) the entering
into this Agreement does not violate any provision of any other agreement to which
such party is bound.
10.20 Notices. All notices under this Agreement shall be effective when
delivered by (i) personal delivery, or (ii) reputable same-day or overnight courier or
messenger service, (iii) overnight United States Postal Service Express Mail, postage
prepaid, or (iv) by United States Postal Service mail, registered or certified, postage
prepaid; and addressed to the respective parties as set forth below or as to such
other address as the parties may from time to time designate in writing:
To City:
With copy to:
City of Irwindale
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: John Davidson
Alesh ire & Wynder
18881 Von Karman Avenue, Suite 1700
Irvine, CA 92612
Attn: Fred Galante
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Speedway Outlets Shopping Center
1017711.1
To Developer:
With copy to:
Irwindale Outlet Partners, LLC
202 South Lake Ave., Suite 300
Pasadena, CA 91101
Attn: James Chou
Glaser Weil
10250 Constellation Blvd., Suite 1900
Los Angeles, CA 90067
Attn: Timothy McOsker
10.21 Recitals. The recitals in this Agreement constitute part of this Agreement
and each party shall be entitled to rely on the truth and accuracy of each recital as an
inducement to enter into this Agreement.
10.22 No Brokers. City and Developer represent and warrant to the other that
neither has employed any broker and/or finder to represent its interest in this
transaction. Each party agrees to indemnify and hold the other free and harmless from
and against any and all liability, loss, cost, or expense (including court costs and
reasonable attorney's fees) in any manner connected with a claim asserted by any
individual or entity for any commission or finder's fee in connection with this Agreement
arising out of agreements by the indemnifying party to pay any commission or finder's fee.
[SIGNATURE PAGE FOLLOWS]
-36- DEVELOPMENT AGREEMENT
Speedway Outlets Shopping Center
1017711.1
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first set forth above.
City: CITY OF IRWINDALE, a municipal
corporation
By:
Mark A. Breceda, Mayor+
ATTEST:
By
City Clerk
APPROVED AS TO FORM:
ALESH IRE & WYNDER, LLP
By
Fred Galante, City Attorney
Developer: IRWINDALE OUTLET
PARTNERS, LLC, a Delaware
limited liability corporation
By:
Haixigo Lin, Majority Owner
By:
Its:
[End of Signatures]
-37- DEVELOPMENT AGREEMENT
Speedway Outlets Shopping Center
1017711.1
1. STATE OF CALIFORNIA
2. COUNTY OF LOS ANGELES
3. On
before me„ Notary Public
4. personally appeared
5. who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) are subscribed to the
within instrument and acknowledged to me that they
executed the same in their authorized capacity, and that by
their signature(s) on the instrument the person(s), or the
entities upon behalf of which the person(s) acted, executed
the instrument.
6. I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
7. WITNESS my hand and official seal.
PlnrA NrItr/ SAP! AhnVe
Signature of Notary Public.
OPTIONAL
9, Though the information below is not required by law, it may prove valuable to persons relying on the
document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
10. Title or Type of Document:
11. Document Date: Number of Pages:
12. Signer(s) Other Than Named Above:
Capacity(ies) claimed by Signer(s)
13. Signer's Name:
14. 0 Individual
15. 0 Corporate Officer — Title(s):
16. 0 Partner — 0 Limited 0 General
17.0 Attorney in Fact
18. 0 Trustee
19. 0 Guardian or Conservator
20. 0 Other:
21. Signer is Representing:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
DEVELOPMENT AGREEMENT
Speedway Outlets Shopping Center -38-
1017711.1
DRAFT
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
[TO BE INSERTED]
DEVELOPMENT AGREEMENT
Speedway Outlets Shopping Center
Exhibit A
01005.0018/171522.19
Exhibit Page - Legal(exhibit)(08-07)
Escrow Pio.:
Locate No.: CACTI7756-7756-5680-0068005891
Title No.: 12-68005891-SS
EXHIBIT "A"
PARCEL 1:
Parcel 1, in the City of Irwindale, County of Los Angeles, State of California, as shown on Parcel Map No. 21968, filed in Book
237 Pages 26 and 27 of Parcel Maps, in the office of the County Recorder of said County.
PARCEL 2:
That area shown as "Remainder Parcel 50.30 Acres" on Parcel Map No. 21968, in the City of Irwindale, County of Los Angeles,
State of California, as per Parcel Map filed in Book 237 Pages 26 and 27 of Parcel Maps, in the office of the County Recorder
of said County.
APN: 8532-004-022, 8532-004-025, 8532-004-026
DRAFT
EXHIBIT "B"
DEVELOPMENT PLAN, CONCEPTUAL AND SITE PLANS, CONDITIONS OF
APPROVAL
Development Plan:
The Project site is approximately 63.5 acres in size. The proposed Project includes the construction and
occupancy of an approximately 702,000 -square foot shopping center and associated parking. In addition
to the primary function of the shopping center to provide "retail" commercial space for shopping
opportunities, the Project includes ancillary amenities including a central plaza for public gatherings,
entryway features, an outdoor entertainment/performance area, police substation, and a food court. The
proposed Project will include related improvements, including, but not limited to parking, landscape
planters, fencing, and walls.
Regular hours of operation of the shopping center are expected to be Monday through Saturday from 10
a.m. to 9 p.m. and Sundays from 10 a.m. to 9 p.m. It is anticipated that extended hours of operation will
occur during holidays.
Access and Circulation
Access to the Project would be from three driveways on Live Oak Avenue. Parking for customers and
employees would exist on all sides of the proposed shopping center.
Major Utilities
Post-development, the Project site will be divided into three storm water drainage sub-areas. The three
subareas will drain into three separate connections. All storm flows will be collected, treated and
conveyed to the existing storm drain system in Live Oak Avenue via catch basins or trench drains. On
each of the connection lines, the project proposes to install media filter devices. The filters will capture
and retain sediment, oils, metals, and other targeted constituents. Curb inlets, if utilized, will also have
media filters and curb guard installed. If roof drains are connected directly into the storm drain system,
roof drain filters will be installed on the roof leaders. A trench drain will be constructed across the
westerly driveway intercepting flows and directing the run-off into a drainage collection line. Trench drain
filters will be installed in this feature. This storm drain system shall be designed in accordance with the
National Pollution Discharge Elimination System (NPDES) requirements and Irwindale Municipal Code
Chapter 8.28.
Wastewater from the Project site would be conveyed by the City's local main sewer line located in Live
Oak Avenue to a Los Angeles County Sanitation District (LACSD) wastewater treatment plant. The main
sewer line connects to a primary sewer trunk line located to the west in Peck Road. The primary
treatment plant servicing the City is LSCSD's San Jose Creek Water Reclamation Plant (WRP), with
excess sewage and all bio solids treated at LSCSD's Joint Water Pollution Control Plant.
The Project is located in the water service area of Golden State Water Company (GSWC), with water
delivered by the South Arcadia System. Water delivery to the project site will be accomplished by a
connection to the existing water line located in Live Oak Avenue.
Construction and Phasing
The Project would be completed in two phases. Phase 1 of the project would start in 2015 and be
completed in fall 2017 and would include demolition of the speedway and associated buildings, all site
preparation and grading, and would develop approximately 455,000 square feet or 65 percent of the total
project building space. Phase 2 would start in winter of 2017 and be completed in the fall of 2018 and
DEVELOPMENT AGREEMENT
Speedway Outlets Shopping Center
Exhibit 13
01005.0018/171522.19
would develop approximately 245,000 square feet or 35 percent of the total project space. Concrete,
asphalt, and other acceptable demolition debris would be used on site as fill within the racetrack oval as
well as other portions of the project as deemed necessary for proper preparation of the site's foundations.
DEVELOPMENT AGREEMENT
-2- Speedway Outlets Shopping Center
Exhibit B
1017711.1
Site & Conceptual Plans
[TO BE INSERTED]
DEVELOPMENT AGREEMENT
-3- Speedway Outlets Shopping Center
Exhibit B
1017711.1
Conditions of Approval for Project
A. General Conditions:
1. The uses authorized by this Site Plan and Design Review Permit allow for
construction and operation of an approximately 700,000 square foot
shopping center. consisting of buildings up to 20 feet tall with appurtenant
open, on-surface parking areas providing approximately 3,250 onsite parking
spaces on approximately 63.47 acres. Total lot coverage for the project will
be approximately 25.4%.
2. Prior to the issuance of a business license and/or occupancy permit and/or
final inspection by the City, all applicable conditions of approval (except
those involving construction permits) shall be completed to the reasonable
satisfaction of the City,
3. The Applicant shall defend, indemnify and hold harmless the City of
Irwindale, its agents, officers, or employees from any claims, damages,
action, or proceeding against the City or its agents, officers, or employees to
attack, set aside, void or annul, any approval of the City, its advisory
agencies, appeal boards, or legislative body concerning Site Plan and
Design Review Permit No. 01-2013; Development Agreement No. 01-2013;
and Zone Change No. 03-2013. The City will promptly notify the permittee of
any such claim, action, or proceeding against the City and will cooperate fully
in the defense.
4. The use and improvements authorized by this Site Plan and Design Review
Permit shall conform to the plans as finally approved by the City (date
stamped on March 25, 2015) as conditioned herein, and any appreciable
modification of the plans or mode of operation, as determined by the
Community Development Director, shall require the prior approval of the City
Council pursuant to the amendment of the Site Plan and Design Review
Permit.
5. The Applicant agrees to allow City inspectors access to the site to
reasonably inspect the site during normal working hours to assure
compliance with these conditions and other codes. Any and all fees required
to be paid to any public agency shall be paid prior to obtaining any permits
for this project.
6. The Applicant shall maintain and use the project location and facility thereon
in full compliance with all codes, standards, policies and regulations imposed
by the City, County, State, or Federal agencies with jurisdiction over the
facility.
7. It shall be required that the subject location, and its contents, including but
not limited to; structures, fences or garden/block walls, and vehicles are
DEVELOPMENT AGREEMENT
-4- Speedway Outlets Shopping Center
Exhibit B
1017711.1
maintained free and clear of any graffiti. The Applicant shall be held
responsible for the immediate removal of any and all graffiti found on-site
within 48 hours of its application.
8. A sign program for the entire development shall be approved under a
separate permit.
9. The premises will be secured with appropriate security lighting, to obtain a
minimum of 1-foot candles over the entire site. A photometric lighting plan
shall be submitted, subject to the review and approval of the Community
Development Department and the Police Department
10. Security lighting fixtures are to be shielded and shall not project above the
fascia or roof line of the buildings. Security lighting fixtures shall not be
substituted for parking lot or walkway lighting fixtures.
11. In accordance with the provisions of Government Code Section 66020(d)(1),
the imposition of fees, dedications, reservations, or exactions for this project
are subject to protest by the applicant at the time of approval or conditional
approval of the project, or within 90 days after the date of imposition of the
fees, dedications, reservations, or exactions imposed on the project.
12. In order to maintain compatibility with existing uses, the project applicant
shall:
(a) Construct and maintain a solid wall to minimize noise,
vibration and dust impacts at the border between the project
site and the adjacent Hanson Irwindale Quarry, to the extent
feasible. Such wall shall be a minimum of six feet in height but
shall otherwise be built in accordance with the plans and
specifications approved by the City Engineer.
(b) Disclose, in writing, on all leases, subleases, rental
agreements, sales contracts, assignments, or other similar
contractual agreement, the existence of adjacent surface
mining and construction material uses that, even when
operating within regulatory standards, may create noise,
vibration, and dust.
13. At no cost to the City, Irwindale Outlet Partners LLC shall grant to the City a
perpetual forty (40) foot wide road and underground utility easement running
along and parallel to the westerly property line of the project as shown in
Attachment "B-2" to to these conditions, along with all necessary temporary
construction easements using a Grant of Easement Form as approved by
the City. Developer shall not be responsible for any improvements or
infrastructure within the easement.
DEVELOPMENT AGREEMENT
-5- Speedway Outlets Shopping Center
Exhibit B
1017711.1
B. Community Development Department Conditions:
14. All landscaping for the project shall consist of native plants, with the
exception of palm trees, which shall be featured in the landscape plan. At
the discretion of the Community Development Director, portions of the
landscaping shall serve as a demonstration garden for visitors to the site and
will include the common and botanical names of plants, and interpretive
signs with information about native plants and water conservation.
15. Landscape and irrigation plans shall be prepared by a licensed landscape
architect, and are subject to the approval of the Community Development
Director and the City Engineer. Vision clearance shall be maintained at all
vehicle entrances and exits.
16. A complete, permanent, automatic irrigation system shall be provided for all
landscaped areas.
17. All landscaped planters shall be surrounded by a six (6) inch horizontal
concrete curb.
18. The following invasive plants shall not be used in landscaping:
• Carpobrotus edulis (ice plant)
• Hedera helix, H. Hibemica, H. caneriensis (English ivy, Irish ivy,
Algerian ivy
• Vinca Major (periwinkle)
• Pennisetum setaceum and all cultivars and varieties (fountain grass)
• Cortaderia selloana, C. jubata and all cultivars and varieties (pampas
grass)
• Retama monosperma, Genista monspessulana, Cytisus
striatus,Cytisus scoparius, and Spartium junceum (broom — bridal,
French, Portuguese, Scotch, Spanish)
• Acacia Cyclops (acacia or western coastal wattle)
• Myoporum laetum (myoporum)
• Washingtonia robusta and Phoenix canariensis (Mexican fan palm
and Canary Island date palm)
• Schinus terevinthifolius (Brazilian pepper)
• Eucalyptus globules, E. camaldulensis (eucalyptus, blue gum, and red
gum)
19. At least 10 percent of the total gross land area of the site (in this case,
276,475 square feet) shall be landscaped.
20. At least 10 percent of the parking areas shall be landscaped. Trees shall be
planted in the parking lot such that at maturity, 35 percent of the parking
DEVELOPMENT AGREEMENT
-6- Speedway Outlets Shopping Center
Exhibit B
1017711.1
space area shall be shaded. Landscape plans shall show the radius of each
tree at maturity and the calculation of required shade coverage at maturity.
At the discretion of the Community Development Director, this condition may
be modified if solar collectors are installed in the parking lot over the parking
spaces and over the pedestrian walkways.
21. All plant material, including trees, shall be maintained in good condition and
replaced in the event they die or become diseased.
22. All perimeter fencing, block walls, etc. shall be maintained in satisfactory
condition in accordance with all applicable codes.
23. All utility equipment such as backflow units, transformers shall be screened
with native species as allowed.
24. All masonry walls and driveway gates shall be decorative. The design of the
walls and gates shall be subject to the review and approval of the
Community Development Department.
25. The entrance to all driveways will consist of river rock or be concrete color-
mixed and stamped to simulate terracotta tiles.
26. All rooftop mechanical equipment, including heating and air conditioning
units, antennas and other electronic devices, will be completely and
decoratively screened from view from all public rights of way and adjacent
properties, and will be integrated into the design and construction of the
buildings[1]. The decorative screening wall or parapet shall be at least 12
inches taller than the equipment being screened. All rooftop equipment and
screening shall be shown on the plans and elevations, and shall be
consistent with the building design and construction materials in texture and
color. Such rooftop equipment screening shall be subject to the review and
approval of the Community Development Department.
27. All rooftop wireless telecommunications antennas operated by third parties
or subject to the provisions of Chapter 17.90 of the Irwindale Municipal Code
shall require a separate permit in accordance with the provisions of the
Municipal Code.
28. The street numbers for the development will be painted on the rooftop of
each building in such a manner that it is clearly visible to public safety
personnel, with minimum five (5) foot long numbers and with minimum one
(1) foot wide brush strokes. Rooftop numbers shall be shown on the plans
submitted for plan check.
[1] Rooftop photo voltaic systems are exempt from this requirement.
DEVELOPMENT AGREEMENT
-7- Speedway Outlets Shopping Center
Exhibit B
1017711.1
29. A chain link fence with green screening shall be installed and maintained
throughout the perimeter of the site at all times during construction.
30. Applicant shall at all times comply with the Irwindale Municipal Code Noise
Standards as measured at the Site boundary. Additionally, if noise impacts
exceed the applicable noise standard contained in the Irwindale Municipal
Code, Applicant shall take necessary actions and implement procedures to
bring the operations into compliance with this Code.
31. All existing asphalt and concrete on the site shall be re-used on site so that
there is no export of these materials from the site. All nonhazardous
demolished materials shall be either be reused on site or recycled. These
specifications shall be included in the Construction Waste Management Plan
required by Section 5.408 of the 2013 California Green Building Standards
Code.
32. The project shall shall maintain highest standards of development, including
without limitation applicant's best efforts to design the Project to meet or
exceed the standards for a LEED Gold Certified building (or equivalent
techniques or designed used for the purpose of reduction of energy URA AR
approved by the Community Development Director in writing). Systems
which may be utilized would include solar panels and other alternative
energy technologies. Additionally, to reduce emissions, at all truck loading
locations, power plug-in stations shall be provided to reduce emissions from
idling trucks.
33. Individual monuments exemplifying the City's history and heritage shall be
created and placed along each interior plaza where four building corners
come together. Design of the monuments shall take into account pedestrian
safety including, but not limited to, location, access, and touch. Said
monuments shall be approved separately by the City Council at a future
meeting under "new business".
C. Fire Department Conditions:
34. Projects associated with a land development permit such as a tract or parcel
map, conditional use permit, zone change or other such permits, shall submit
plans to the Land Development Unit (LDU) for review and approval prior to
submitting to Fire Prevention Engineering for building plan review. To contact
LDU please call (323) 890-4243 or submit to our office located at 5823
Rickenbacker Road, Commerce, CA 90040.
35. Submit two sets of architectural plans to the Fire Prevention Engineering
Office located at 231 W. Mountain Avenue, Glendora CA 91741. Plan sets
shall contain a minimum of a site plan, floor plan(s), elevations, door and
DEVELOPMENT AGREEMENT
-8- Speedway Outlets Shopping Center
Exhibit B
1017711.1
window schedules, wall details, and appropriate section details. Please
provide architectural sheets only. No civil, electrical, mechanical, plumbing,
etc.
36. Indicate on plans the project address, assessor's parcel number, type of
construction, occupancy classification, area of each floor level and building
area increase modifications in accordance with the Building Code.
37. Provide a minimum unobstructed width of 26 feet, clear to the sky, Fire
Department vehicular access to within 150 feet of all portions of exterior
walls. Dead-end access roadways greater than 150 feet in length, shall be
provided with an approved fire apparatus turnaround. The access width shall
be increased to 28 feet when proposed buildings, or portions of buildings,
are more than 3 stories, or more than 35 feet in height. A 32 foot centerline
turning radius is required at each change of direction in vehicle travel
regardless of the required width.
38. On the site plan, show the location of all existing public fire hydrants within
300 feet of all property lines and call out the hydrant size and dimensions to
property lines. Additionally, show all existing on-site fire hydrants.
39. The required fire flow for public fire hydrants at this location is 4000 gallons
per minute at 20 psi for a duration of 4 hours over and above daily domestic
demand in accordance with Fire Code Appendix B, Table B105.1. A 50%
reduction in required fire flow may be applied for the installation of automatic
fire sprinklers. The minimum reduced fire flow shall not be less than 2000
gallons per minute at 20psi.
40. Complete and return the original "Fire Flow Availability" Form No. 196.
41. Indicate on the site plan the location of high voltage transmission lines near
the property. Structures proposed to be constructed adjacent to high voltage
transmission lines, within 100 feet of the drip line, shall be subject to
additional review by the Fire Marshal with regard to Fire Department
operational procedures. Based on the Fire Marshal review additional
building construction requirements may be imposed on the project in
accordance with Regulation #27.
42. Indicate existing or proposed photovoltaic systems on the building rooftop or
within the Fire Department access route.
43. Additional Requirements, including the installation of additional fire hydrants,
may be imposed, in accordance with applicable codes, regulations,
standards and policies after the above information is reviewed. Fire
Department requirements are based on the information provided on the
plans submitted for review.
DEVELOPMENT AGREEMENT
-9- Speedway Outlets Shopping Center
Exhibit B
1017711.1
44. Additional Fire Department Conditions attached hereto as Attachment B-1
D. Public Works/Enqineerinq Conditions:
Streets:
45. That the owner shall pay the cost of design, engineering, installation and
inspection to resurface the existing street frontage of Live Oak Avenue in
front of the project site.
46. The owner/developer shall pay the costs associated with the installation of
an Emergency Vehicle Preemption System (OPTICOM) at the intersection of
Arrow Hwy and Live Oak Avenue (West), Live Oak Avenue and Rivergrade
Road, and Arrow Highway and Live Oak Avenue (East) as determined by the
City Engineer and Fire Chief.
47. That the owner shall design and construct a 5-foot wide meandering
sidewalk along the Live Oak Avenue street frontage, consistent with City
standards.
48. Street right-of-way easements shall be dedicated as follows:
a. Corner cutoffs or radii as required by the Engineer.
b. Traffic Signal Maintenance Easement at intersection of Live Oak
Avenue and Driveway 1 and 3.
c. Five foot strip along the property frontage on Live Oak
Aveneu.
49. All monitoring wells, pipelines, tanks, and related lines within the public right-
of-way shall be removed from the right-of-way unless otherwise approved by
the City Engineer.
50. That the owner shall execute an affidavit agreeing to continue its
participation to the existing Landscape Maintenance District on Live Oak
Avenue. Annual cost shall be based on the City's cost to maintain the
landscaping on Live Oak Avenue.
51. That the owner shall execute an affidavit agreeing to participate in a future
street maintenance district or other type of benefit assessment district to
slurry seal, resurface and reconstruct the street frontage on regular intervals
(5-year, 10-year and 20-year intervals, respectively, as determined by the
City Engineer). The owner shall retain the right to challenge the costs and
method of spreading future assessments.
DEVELOPMENT AGREEMENT
-10- Speedway Outlets Shopping Center
Exhibit B
1017711.1
52. That adequate "on-site" parking shall be provided per City requirements, and
streets abutting the development shall be posted "No Stopping Any Time."
The City will cause the offsite signs to be installed. The owner shall pay the
actual cost of sign installation.
53. The owner/developer shall reimburse the City for the actual cost for the
installation, replacement or modification of street name signs, traffic control
signs, striping and pavement markings required in conjunction with the
development.
54. That common driveway shall not be allowed unless approved by the City
Engineer. Proposed driveways shall be located to clear existing fire
hydrants, street lights, water meters, etc.
55. The owner and/or developer shall pay for the design, installation, and
inspection of undergrounding overhead utilities, if any, on the south side of
Live Oak Avenue and any other utilities on the project site
56. Planting of new trees on the Live Oak Avenue frontage of subject property
per the direction of the City Engineer.
City Utilities:
57. Storm drains, catch basins, connector pipes, retention basin and
appurtenances built for this project shall be constructed in accordance with
City specifications in Live Oak Avenue. Storm drain plans shall be approved
by the City Engineer.
58. Fire hydrants shall be installed as required by the Fire Department. Existing
public fire hydrants adjacent to the site, if any, shall be upgraded if required
by the City Engineer and/or Fire Department.
59. That sanitary sewers shall be constructed in accordance with City
specifications to serve the subject development. The plans for the sanitary
sewers shall be approved by the City Engineer. A sewer study shall be
submitted along with the sanitary sewer plans.
60. All existing buildings shall be connected to the sanitary sewers.
61. Install landscape irrigation system along the Live Oak Avenue frontage,
subject to the City Engineer's approval. Separate meter(s) shall be installed
to accommodate connection of irrigation system for the landscaping on Live
Oak Avenue.
62. That the owner/developer shall obtain a Storm Drain Connection Permit for
any connection to the storm drain system.
DEVELOPMENT AGREEMENT
Speedway Outlets Shopping Center
Exhibit B
1017711.1
63. The owner/developer shall have an overall site utility master plan prepared
by a Registered Civil Engineer showing proposed location of all public water
mains, sanitary sewers and storm drains. This plan shall be approved by the
City Engineer prior to the preparation of any construction plans for the
aforementioned improvements.
Traffic:
64. The owner/developer shall pay for the entire cost for design, engineering,
construction and inspection of all improvements and/or mitigation
measures as identified in the Project EIR including installation of traffic
signals and/or modifications, the installation of additional turn lanes or
deceleration lanes, the lengthening of left turn lanes or other median
modifications, etc. that are warranted based on the project traffic study
report.The owner and/or developer shall pay to the City the full cost of
design engineering, installation and inspection of the improvements. The
City will design and cause construction of the improvements within the
public right-of-way.
65. That a deceleration lane shall be constructed at Driveway 1 to the proposed
development. The owner/developer shall pay for the entire cost to the City
the full cost of design engineering, installation and inspection of the
improvements. The City will design and cause construction of the
improvements within the public right-of-way.
Parcel/Tract Maps:
66. A Lot Line Adjustment to combine all three parcels shall be processed. The
Lot Line Adjustment application shall be prepared and submitted to the
Public Works Department for review and approval. The applicant shall be
responsible for all fees associated with the processing of the Lot Line
Adjustment.
Fees:
67. That the owner/developer shall comply with all requirements of the County
Sanitation District, make application for and pay the sewer
connection/maintenance fee.
Miscellaneous:
68. That a grading plan shall be submitted for drainage approval by the City
Engineer. The owner shall pay drainage review fees in conjunction with this
submittal. A professional civil engineer registered in the State of California
shall prepare the grading plan.
DEVELOPMENT AGREEMENT
-12- Speedway Outlets Shopping Center
Exhibit B
1017711.1
69. That a hydrology study shall be submitted to the City if requested by the City
Engineer. The study shall be prepared by a Professional Civil Engineer.
70. That upon completion of public improvements constructed by developer, the
developer's civil engineer shall submit mylar record drawings and AutoCAD
2014 drawing files to the office of the City Engineer.
71. That the owner/developer shall comply with the National Pollutant Discharge
Elimination System (NPDES) permit, and shall require the general contractor
to implement storm water/urban runoff pollution prevention controls and Best
Management Practices (BMPs) on all construction sites in accordance with
the City Code. The owner/developer will also be required to submit a
Certification for the project and may be required to prepare a Storm Water
Pollution Prevention Plan (SWPPP). Projects over five acres in size will be
required to file a Notice of Intent (N01) with the State Water Resources
Control Board (SWRCB). The owner/developer can obtain the current
application packet by contacting the SWRCB, Division of Water Quality, at
(916) 657-1977 or by downloading the forms from their website at
http://www.swrcb.ca.gov/stormwtr/construction.html . The project shall also
conform to Ordinance 915 regarding the requirements for the submittal of a
Standard Urban Storm Water Mitigation Plan ("SUSMP"). The SUSMP
includes a requirement to implement Post Construction BMPs to infiltrate the
first 3/4" of runoff from all storm events and to control peak-flow discharges.
Unless exempted by the Los Angeles Regional Water Quality Control Board,
a Covenant and Restriction ensuring the provisions of the approved SWPPP
shall also be required.
Building & Safety:
72. Building permits shall be obtained from the Building and Safety Division and
all construction shall be in compliance with the Irwindale Building Code and
all applicable regulations.
E. Police Department Conditions:
73. Provide for a police substation as part of the development that will consist of
an office space that is approximately 25 feet by 15 feet with a restroom
facility included. The location of the substation shall be mutually agreed upon
between the applicant and the Chief of of the Police Department.
74. A surveillance system shall be provided which covers the entire property,
including cameras to cover entry / exits of driveways, parking lots, walk
ways, hallways outside of restrooms, subject to the review and approval of
the Police Department.
DEVELOPMENT AGREEMENT
-13- Speedway Outlets Shopping Center
Exhibit B
1017711.1
75. Provide reserved parking stalls available for law enforcement vehicles
throughout the parking lots and near the substation. Locations of the parking
stalls shall be subject to the review and approval of the Police Department.
DEVELOPMENT AGREEMENT
-14- Speedway Outlets Shopping Center
Exhibit B
1017711.1
ATTACHMENT B-1
Additional Fire Department Conditions
DARYL L OSBY
FIRE CHIEF
FORESTER & FIRE WARDEN
COUNTY OF LOS ANGELES
FIRE DEPAR'rMENT
1320 NORTH EASTERN AVENUE
LOS ANGELES, CALIFORNIA 90063-3294
January20. 2015
Petite Kelly, .Sertior -Planner -
City of Invindale
Planning Department
5050 North iraindale Avenue,
Irwindaie, CA9`, 706.
Dear Ms. icelky:
NOTICE OF AVAILABILFTY OF A DRAFT ENVIRONMENTAL IMPACT REPORT,.
"IRWINDALE REGIONAL SHOPPING CENTER," PROPOSED A SHOPPING
CENTER CC.',NSIST:l-'; OF AN APPROXIMATELY 700,000 SQUARE FOOT TO
PROVIDE COMMERClAL. SPACE AND FOR SHOPPING OPPORTUNiTIES, TO BE
COMPLETED IN TWO PHASES, ECG SPEEDWAY DRIVE, IRWINDALE
(FFER 201400247)
The Notice of Availability of a Draft Environmental Impact Report has been reviewed by
the Planning Division, Land Development Unit, .Forettry Division, and Health .Hazardous
Materials Division of the County of Los Angeles Fire Department, The fol owir .;7, are
their comments:
PLA.NNING DIVISOV
1_, \Ne.nave oc comments ..at this time.
'LAND DEVELOPMENT 1.11-7 .
The development of this project must comply with at applicable :',ode and ordinance:
requirements for construction, a=ecs, water mains, fire flows, and fire hydrants. Specific
Fire and Life Safety requirements will be addressed during the cte plan reviewand -
building planzheck review.
SERVING THE UtattaRPORATEDAREAS OF LOS ANGELES COUNTY AND THE CITIES OF:
AGOURA RILLS
ARTESIA
BAL-MAN PARK
SELL
esa GARGEW
BELLFLOWER
BRADBURY
EALABASAS
CARBON
CERRITOS
CLAREMONT
COMMERCE
COMMA
CUDAHY
DIAMOND BAR
DUARTE
EL MONTE
GARDENA
GLENDORA
HARRIDAN GARDENS
HAWITiORNE
HIDDEN HILLS
HUNTINGTON PARK
LIGROSTRT
INGLEWOOD
IRWRIDALE
IA CANADA FUNTRIDGE
LA *ARRA
LA MIRADA
LA PUENTE
1AKERNOOD
LANCASTER
LAWNDALE
LOMITA
LYNWOOD
NAURU
MATWOOD
NORWALK
PALMDALE
PALMS DOGES ESTATES
PARAMOUNT
PICO RVERA
POMONA.
RANCHO PALOS VERDE&
ROLLING IRRIS
ROLLING HILLS ESTATES
ROSEMEAD
&AN DIMAS
SANTA MARRA
SIGNAL HILL
SOUTH EL MERITS
MUIR GATE
TEMPLE erry •
wAuarr
WEST HOLLyWOOI
WESTLAKE VitlAG
ERSITTIER
DEVELOPMENT AGREEMENT
-15- Speedway Outlets Shopping Center
Exhibit B
1017711.1
Paula Kelly, Senior Planner
January 20,2015'
Page 2
Submit a minimum of four (4) copies of the site plan and a minimum of one (1) copy of th
elevations to the Land Development Unit for review.
A • ESS REQUIREMENTS
1. Prior to the issuance of any building permits, the required Fire Apparatus Access
Roads and the public and private fire hydrants shall be inspected for compliance
by the County of Los Angeles Fire Department.
2. All on-site Fire Department vehicular access roads shall be labeled as "Private
Driveway and Fire Lane on the site plan along with the widths clearly depicted
on the plan. Labeling is necessary to assure the access availability for Fire
Department use. The designation allows for appropriate signage prohibiting
parking.
2. Fire Department vehicular access roads must be installed and maintained in a
serviceable manner prior to and during the time of construction.
Fire Code 501.4.
4. All fire lanes shall be clear of all encroachments and shall be maintained in
accordance with the Title 32, County of Los Angeles Fire Code.
5. The edge of the fire access roadway shall be located a minimum of feet
the building or any projections there from.
6. The Fire Apparatus Access Roads and designated fire lanes shall be measured
from flow line to flovv line.
7. If the proposed buildings are less than 30 feet in height provide a minimuM
unobstructed width of 26 feet exclusive of shoulders and an unobstructed vertical
clearance 'clear to sky" Fire Department vehicular access to Within 150 feet of all
portions of the exterior walls of the first story of the building as measured by an
.approved route around the exterior of the building.
Fire Code 503.1.1 and 503.2.2.
a) The Fire Apparatus Access Road shall be cross-hatch on the site plan,
and the width shall be clearly noted.
8. If the proposed buildings are 30 feet or greater in height provide a minimum
unobstructed width cif 28 feet exclusive of shoulders and an unobstructed vertical
clearance "clear to sky° Fire Department vehicular access to within 150 feet of all
DEVELOPMENT AGREEMENT
-16 - Speedway Outlets Shopping Center
Exhibit B
1017711.1
Paula Kelly, Senior Planner
January 20, 2015
Page 3
portions of the exterior walls of the first story of the building as measured by an
approved route around the exterior of the building when the height of the building
above the lowest level of the Fire Department vehicular access road is more than
30 feet high or the building is more than three stories. The access roadway shall
be located a minimum of 15 feet and a maximum of 30 feet from the building and
shall be positioned parallel to one entire side of the building. The side of the
building on which the aerial fire apparatus access road is positioned shall be
approved by the fire code official. Fire Code 503.1.1 and 503.2.2.
The Fire Apparatus Access Road shall be cross-hatch on the site plan
and the width shall be clearly noted.
9. lithe Fire Apparatus AceesS-.ROad.is separated by island, provide a minimunl
unobstructed width of 20 'feeteXclusive of shoulders and an Onobstriicted vertical
clearance "clear to s'Ky'' Fire Department vehicular access to within 150 feet of all
portions of the exterior walls of the first story of the building as measured by an
approved route around the exterior of the building,
Fire Code 503.1.1 and 503.2.2.
-a) The rim Apparatus Access Road shall be cross-hatch on the site plan
and the width shall be clearly noted,
10. The dimensions of the approved Fire Apparatus Access Roads shall be
maintained as originally approved by the fire code official. Fire Code 503.2.2.1.
1.. Dead-end fire apparatus access roads in excess of 150 feet in length shall be
provided with an approved Fire Department turnaround. Fire Code 503.2.5.
al. Include: The dimensions of the turnaround with the orientation of the
tdmaround shall be properly placed in thedirection Of travel of the
access roadway.
11 Fire Departmentvehicular access roads shall be provided with a 32-foot
centerline turning radius. Fire Code 503.2.4.
a) Indicate the centerline, inside, and outside turning radii for each change
in direction on the site plan.
13. Fire Apparatus Access Roaos shall be designed and maintained to support the
imposed load of fire apparatus weighing 37 % tons and shall be surfaced so as to
I MLN I
-17- Speedway Outlets Shopping Center
Exhibit B
1017711.1
Paula Kelly, Senior Planner
January 20, 2015
Page 4
provide all-weather driving capabilities. Fire apparatus access roads having a
grade of 10 percent or greater shall have a paved or concrete surface,
Fire Code 503.2.3.
14. The gradient of Fire Department vehicle access roads shall not exceed
15 percent unless approved by the fire code official. Fire Code 503.2.7.
'IS:. Provide approved signs or other approved noticesiorirriarkinds that include the
words "NO PARKING— FIRE LANE'. Signs shall have a -Minimum dimension of
12 inches wide by 18 inches high and have red letters on .a white reflective,
background. Signs their be provided for fire apparatus access roads to clearlyi
indicate the entrance to such road or prohibit the obstruction thereof and at
intervals as required by the Fire Inspector. Fire Code 503.3.
16. A minimum 5 foot wide approved firefighter access walkway leading from the fire
department access road to all required openings in the building's exterior walls
shall be provided for firefighting and rescue purposes. Fire Code 504.1.
Clearly identify firefighter walkway access routes on the site plan.
Indicate the slope and walking surface material. Clearly show the
required width.
IT Security barriers; visual screen barriers, Or other obstructions shall not be
installed on the roof of any building in such a manner as to obstruct firefighter
access oregress in the event of fire or other emergency. Parapets shall not
exceed 48 inches from the top of the parapet to the roof surface on more than
two -sides.. Fire Code 504.5.
Clearly indicate the height of all parapets in an elevation view.
1.8. Approved building address numbers, building numbers, or approved building .
identifisatic,n shall be provided and maintained so as to be plainly visible and
legible 'Trom the street fronting the property. The numbers shall contrast with
their background, be Arabic numerals or alphabet letters and be a minimum of
4-inches high with a minimum stroke width of 1,4 inch. Five Code 505.1.
19.. Multiple residential and commercial buildings having entrances to individual units.
not visible fror,-; the street or road shall have unit numbers displayed in groups for
all unite within each structure. Such numbers may be grouped on the wail of the
structure or mounted on a post independent of the structure and shall be
positioned to be plainly visible from the streetorroad.as.required by
GAT 111J11. D
1017711.1
Paula Kelly, Senior Planner
January 20, 2015
Page 5
Fire Code 505.3 and in accordance with Fire Code 505.1.
20: Fire Apparatus Access- Roads shall be identified with approved signs.
Temporary signs shall be installed at eacht Street intersection when construction
of new roadways .allows passage by vehicles. Signs shall be of an approved
size, weather resistant, and be maintained until replaced by permanent
Fire Code 505.2.
21. An approved key box, listed in accordance with UL 1037 shall be provided as .
required by Fire Code 506. The location of each key box shall be determined by
the Fire inspector. -
22. The proposed development may necessitate..multipleinaressiegress accesafor.:,.
the circulation of traffic and emergency response isaues.. The fire code official is
authorized to require more than one Fire Apparatus Access Road based on
the potential for impairment of a single road by vehicie congestion, condition of
terrain, climatic conditions, or other factors that could ilmit access. Such
additional access must comply with Title 21 of the Los Angeles County Code.
Fire Code 503.1.2.
.23.. Fire Apparatus Access Roads shall not be obstructed in any manner including by
the parking of vehicles or the use of traffic calming devices including but not
limited to speed bumps or speed humps. The minimum widths and clearances
.established in Section 503.2.1 shall be maintained at all times. Fire Code 5014...
24. Traffic Calming Devices including but not limited to speed bumps and speed.
humps shall be prohibited unless approved by the fire code official.
Fire Code 503.4.1.
.25. When security gates are provided maintain a minimum access width of the Fire
Apparatus Access Road. The security gate shall be provided with an approved.
means of emergency operation and shall be maintained operational at all times
and replaced or repaired when defective. Electric gate operatofs where provided
shall be listed in accordance with UL 325. Gates intended for automatic
operation shall be deaigned, constructed, and installed to comply with the
requirements of ASTM F220. Gates shall be of the swinging or sliding type:.
Construction of gates shall be of materials that allow manual operation by one
person': Fire Code 50'3.6.
Paula Kelly, Senior Piann
January 20, 2015
Page 6
WATER SYSTEM REQUIREMENTS
All fire hydrants shall measure 6"x 4"x 2-10 brass or bronze conforming to
current AWWA standard C503 or approved equal and shall be installed in
accordance with the County of Los Angeles Fire Department Regulation 8.
2. All required PUBLIC fire hydrants shall be installed, tested, and accepted prior to
beginning construction. Fire Code 501.4.
All on-site fire hydrants shall be installed a minimum of 25 feet from a structure or
protected by a two (2)-hour rated firewall. Indicate compliance prior to the
approval of this project. Fire Code Appendix C106.
4, All private on-site fire hydrants Shall be installed, tested, and approved prior to
'building occupancy. Fire Code 901:51.
a); Plans showing underground piping for private on-site fire hydrants
-shall be submitted to the Sprinkler Plan Check Unit for review and
approval prior to installation. Fire Code 901.2 and County of Los.
.Angeles Fire Department Regulation 7.
5.„ _Fire hydrant spacing shall be 300 feet and shall meet the following requiremens:
No portion of lot frontage shall be more than 200 feet via vehicular
access from a public fire hydrant.
No poition of a building shall exceed 400 feet via vehicular access.
from a properly spaced public fire hydrant.
c).. Additional hydrants will be required if hydrant spacing exceeds'
specified distances.
d) When cul-de-sac depth exceeds 200 feet on a commercial street,
hydrants shall be required at the corner and mid-block.
e) A cul-de-sac shall not be more than 500 feet in length when serving
land zoned for commercial use.
The .specific fire flow will be determined based on the type of construction of cad
building the square footage ofeach building and if there is an automatic fire
sprinkler tytterri is . installed.
1017711.1
Paula Kelly, Senior Planner
January 20, 2015
Page 7
a) The required fire flow for the public fire hydrants for this project is
5000 gpm at 20 psi residual pressure for 5 hours. Three (3) public fire
hydrants flowing simultaneously may be used to achieve the required
fire flow. Fire Code 507.3 and Appendix B105,1.
b) The required fire flow for the on-site private fire hydrants for this
project is 5000 apm at 20 psi residual pressure for 5 hours. Three (3)
on-site fire hydrants flowing simultaneously may be used to achieve
the required fire flow.
7. For the existing public fire hydrants, submit the completed original copy of the
Fire Flow Availability Form (Form 196). The fire flow data shall be submitted to
the County of Los Angeles Fire Department's Land Development Unit prior to the
issuance for clearance of this project. A fire hydrant upgrade is not necessary if
existing hydrants meet the fire flow requirements.
If there are any questions regarding the Land Development Unit's comments, please
contact FPEA Claudia Soiza or Wally Collins at (323) 890-4243.
FORESTRY DIVISION — OTHER ENVIRONMENTAL CONCERNS
1. The statutory responsibilities of the County of Los Angeles Fire Departments
Forestry Division include erosion control, watershed management, rare and
endangered species, vegetation, fuel modification for Very High Fire Hazard
Severity Zones or Fire Zone 4, archeological and cultural resources, and the
County Oak Tree Ordinance. Potential impacts in these areas should be
addressed.
HEALTH HAZARDOUS ,FiERIALS DIVISION
'L. The Health Hazardo us Materials Division has no additional comments than those
.already provided..
DEVELOPMENT AGREEMENT
-21- Speedway Outlets Shopping Center
Exhibit B
1017711.1
ATTACHMENT 8-2
Road and Underground Utility Easement
[TO BE INSERTED]
DEVELOPMENT AGREEMENT
-22- Speedway Outlets Shopping Center
Exhibit B
1017711.1
\."
DEPARTP' 03' TRAINSPGRIATIC,N
DISTRICT 7-OPFICP, OF TRANSPORTATION PLANNING
100 S. MAIN STREET. MS 16
I .0S ANGELES. CA 90012
PHONE, (2131897-9140
FAX 213) 897-1337
www.dot.ca.gov
J;) 'iri,vN
$(`
Serious droughi.
Rein save water!
?015
Mr. William Tarn
Public Works Director/City ,,,..unnet
City of Irwindale
5050 North Irwindale Avenue
4 ndalc, CA 91706
rwindaie Regional Shop? Center
Vie. LA-605, PM 23.52
SCH # 2014071042
Ref. 1GRICEQA No. 1.40729NY-N0P
Ref. IGR10EQA No. 150114AL-DEIR
IGRICEQA No No 150313ALFEIR-
ear Mr.
This is a follow up to. Caltrans' comment letter dated February 6, 2015. Atler review of the
Response to Comment, prepared on March 5. 2015 from the City, Caltrans has the Following
comments.
Caltrans concurs with Response to Caltrans Comrnent letter dated February 6. 2015.
Caltrans is delighted n.the City understands the potential traffic issues created by the
development of the shopping center. Caltram notes that the City has proposed improvements on
1-605 off-ramps at Arrow Highway and Live Oak Avenue, per Exhibit "A" in your letter,
with a fair share contribution to be paid by the Irwindale Regional Shopping Center developer,
It is also noted that the City will secure sufficient funding to complete the construction of these
improvement projects.
With the City aroposal, Caltrans traffic concerns have been addressed end satisfied. Cabr ans
looks forward to working with the City to improve the operation of the State transportation
facilities in this area. If you eave =any questions, Diease feel free to ic.'-ntat-,-`1. Mr. 6,atn. Lin the
t coordinator at (213) 897-8391 and refer to la ,IZICEQA No. 1503 I3AL-.
Cc-if V,
A INTNA WATS()
RIC EQ.A iranriT
Scott organ. Slate Clearinghouse
-Pr(wide a safe, suseainabie, integrated and efficient tragsponation .vvern
to enhance Califiirnia economy and livabilay"
DRAFT
EXHIBIT "C"
PUBLIC IMPROVEMENTS
The project improvements shall be funded by the Developer, Irwindale Outlet Partners,
LLC. The City will design and cause construction of the project improvements.
(a)1-605 Freeway N/B Off-Ramp at Live Oak Avenue (Table C-1, Item 1).
(b) 1-605 Freeway S/B Off-Ramp at Arrow Highway (Table C-1, Item 2).
(c) 1-605 Feasibility Study for cumulative projects improvements between 1-10
and 1-210.
For improvements to 1-605 Freeway as stated above (a) through (c), Developer shall
pay Two Million Five Hundred Fifty Three Thousand and 00/100 Dollars
($2,533,000.00). Such payment shall be made as follows:
a. The first payment of One Million Dollars ($1,000,000.00) shall be made
twelve (12) months after the effective date of the Agreement.
b. The second payment of One Million and Two Hundred Thousand
Dollars ($1,200,000.00) shall be made twelve (12) months after
completion of Phase 1 of the development.
c. The third payment of Three Hundred and Thirty Three Thousand
Dollars ($333,000.00) shall be made twelve (12) months after the
commencement of Phase 2 development.
TABLE C-1
IMPROVEMENT PROJECTS AT 1-605
Item
No.
Location of
Improvement
Description of
improvement
Construction
Schedule
Project Fair
Share Cost
1 1-605 Freeway
N/B Off-Ramp
at Live Oak
Avenue
Construct a 390 feet(+/-)
long second N/B Off-
Ramp Lane to E/B Live
Oak Avenue; install two
new traffic signals at 1/S
of 1-605 N/B Off-Ramp at
Live Oak Avenue; and to
resurface and restripe
Live Oak Avenue at this
intersection per Caltrans
approved Plans and
Specifications.
Construction to
be completed
prior to the
issuance of
Certification of
Occupancy for
the first phase of
development.
33-1/3% of
the total cost
for the
construction,
and
construction
management
and
inspection of
this
improvement.
2 1-605 Freeway
S/B Off-Ramp
at Arrow
Construct a 500 feet(+/-)
long second S/B Off-
Ramp Lane to Arrow
Construction to
be completed
prior to the
33-1/3% of
the total cost
for the
DEVELOPMENT AGREEMENT
Speedway Outlets Shopping Center
Exhibit B
1017711.1
Item
No.
Location of
Improvement
Description of
Improvement
Construction
Schedule
Project Fair
Share Cost
Highway Highway; install new
traffic signal modification
at I/S of 1-605 S/B Off-
issuance of
Certification of
Occupancy for
Design,
construction,
and
Ramp at Arrow Highway; the second construction
and to resurface and phase of management
restripe Arrow Highway at
this intersection per
Ca!trans approved Plans
and Specifications.
development, and
inspection of
this
improvement.
For all other required public improvements, Developer, at its sole cost, shall implement
per construction schedule listed in Table 0-2 below. The improvements as described in
Table 0-2 shall be designed and constructed to City's standards and/or other applicable
State and County standards. All improvements shall be based on construction plans
and specifications prepared by professional consultants retained by the City. Developer
shall deposit sufficient funds to the City, based on cost estimates prepared by the City
Engineer's office, prior to the City awarding contract for the design and construction
services for these improvements.
TABLE C-2
TRAFFIC CIRCULATION MITIGATION IMPROVEMENT
IRWINDALE REGIONAL SHOPPING CENTER
Item
No.
Location of
Improvement
Description of
Improvement
Construction
Schedule
Project Fair
Share Cost
1 Intersection of
Live Oak
Avenue and
Project
Driveway 1
Construct a new traffic
signal and to resurface
and restripe Live Oak
Avenue at this
intersection.
Construction to
be completed
prior to the
issuance of
Certification of
Occupancy for
the first phase of
development,
100% of the
total cost for
the Design,
construction,
and
construction
management
and
inspection of
this
improvement.
2 Intersection of
Live Oak
Avenue and
Project
Driveway 3
Construct a new traffic
signal and to resurface
and restripe Live Oak
Avenue at this
intersection.
Construction to
be completed
prior to the
issuance of
Certification of
Occupancy for
the first phase of
development,
100% of the
total cost for
the Design,
construction,
and
construction
management
and
inspection of
DEVELOPMENT AGREEMENT
-2- Speedway Outlets Shopping Center
Exhibit C
1017711.1
Item
No.
Location of
Improvement
Description of
Improvement
Construction
Schedule
Project Fair
Share Cost
this
improvement.
East
Intersection of
Arrow
Highway and
Live Oak
Avenue
Construct a third E/B
through lane and to
resurface and restripe the
intersection,
Construction to
be completed
prior to the
issuance of
Certification of
Occupancy for
the first phase of
development,
50% of the
total cost for
the Design,
construction,
and
construction
management
and
inspection of
this
improvement.
4 Intersection of
Avenida
Barbosa and
Arrow
Highway
Construct a 200 feet long
dual left turn lane for E/B
traffic and to resurface
and restripe the
intersection.
Construction to
be completed
prior to the
issuance of
Certification of
Occupancy for
the first phase of
development,
50% of the
total cost for
the Design,
construction,
and
construction
management
and
inspection of
this
improvement.
5 Live Oak
Avenue
Between
Arrow
Highway and
1-605 S/B On-
Ramp
Resurface the entire Live
Oak Avenue in front of the
project site.
Construction to
be completed
prior to the
issuance of
Certification of
Occupancy for
the first phase of
development,
100% of the
total cost for
the Design,
construction,
and
construction
management
and
inspection of
this
improvement.
6 Intersection of
Live Oak
Avenue and
Driveway 1
Construct a 100 feet
deceleration lane for E/B
traffic.
Construction to
be completed
prior to the
issuance of
100% of the
total cost for
the Design,
construction,
DEVELOPMENT AGREEMENT
-3- Speedway Outlets Shopping Center
Exhibit C
1017711.1
Item Location of Description of
No. Improvement Improvement
Construction
Schedule
Project Fair
Share Cost
Certification of
Occupancy for
the first phase of
development.
and
construction
management
and
inspection of
this
improvement.
DEVELOPMENT AGREEMENT
-4- Speedway Outlets Shopping Center
Exhibit C
1017711.1
DRAFT
EXHIBIT "D"
CC&Rs
[TO BE ATTACHED]
DEVELOPMENT AGREEMENT
Speedway Outlets Shopping Center
Page 1 of 1
01005.0018/171522.19
FREE RECORDING REQUESTED AND
WHEN RECORDED, RETURN TO:
City of Irwindale
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: City Clerk
(Space above this line for Recorder's Office Use Only)
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
("CC&Rs") is made and entered into this [ • ] day of [ ], 2015, by IRWINDALE OUTLET
PARTNERS, LLC, a Delaware limited liability company ("Owner" or "IOP"). These CC&Rs
are declared for the benefit of the CITY OF IRWINDALE, a California Charter municipality
("City"). Owner and City are occasionally referred to herein each as a "party" and collectively
as the "parties".
RECITALS:
A. TOP is the owner of that certain real property located in the City of Irwindale,
County of Los Angeles, State of California, more particularly described in Exhibit "A" attached
hereto and incorporated herein by this reference (the "Site").
B. IOP and the City of Irwindale are parties to that certain Development Agreement
entered in to on , (the "DA") regarding the development of the Site as a
commercial retail, outlet shopping center (the Project"). Pursuant to the DA, Owner shall submit
a proposed form of Declaration of Covenants, Conditions and Restrictions to be recorded against
the Site to ensure compliance with the Project construction, maintenance, and operation
requirements set forth in the DA.
D. City has fee or easement interests in various streets, sidewalks and other property
within the City and is responsible for the planning and development of land within the City in
such a manner so as to provide for the health, safety and welfare of the residents of the City.
That portion of the City's interest in real property most directly affected by these CC&Rs are
public rights of way surrounding the Site.
E. City and Owner now desire to place restrictions upon the use and operation of the
Site in order to ensure that the Site shall be developed and operated in accordance with the
requirements set forth in the DA.
F. It is the intent of City and Owner that these CC&Rs shall be recorded on title to
the Site in the Office of the County Recorder for the County of Los Angeles, and that the terms
01005.0019/241614.1
hereof shall be binding on the Owner and its successors in interest in the Site for so long as the
CC&Rs shall remain in effect.
AGREEMENT:
NOW, THEREFORE, Owner declares, covenants and agrees, by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through it, that the Site
shall be held, transferred, encumbered, used, sold, conveyed, leased and occupied, subject to the
covenants and restrictions hereinafter set forth, all of which are declared to be in furtherance of a
common plan for the improvement and sale of the Site, and are established expressly and
exclusively for the use and benefit of City, the residents of the City of Irwindale, and every
person buying an interest in the Site.
1. MAINTENANCE.
1.1 General Maintenance Obligations. Owner, for itself and its successors and
assigns, hereby covenants and agrees to maintain and repair or cause to be maintained and
repaired the Site and all related on-site improvements and landscaping thereon, including,
without limitation, buildings, parking areas, lighting, signs and walls in a first class condition and
repair, free of rubbish, debris and other hazards to persons using the same, and in accordance
with all applicable laws, rules, ordinances and regulations of all federal, state, and local bodies
and agencies having jurisdiction, at Owner's sole cost and expense. Such maintenance and repair
shall include, but not be limited to, the following: (i) sweeping and trash removal; (ii) the care
and replacement of all shrubbery, plantings, and other landscaping in a healthy condition; and
(iii) the repair, replacement and restriping of asphalt or concrete paving using the same type of
material originally installed, to the end that such pavings at all times be kept in a level and
smooth condition. In addition, Owner shall be required to maintain the Property or cause the
Property to be maintained in such a manner as to avoid the reasonable determination of a duly
authorized official of the City that a public nuisance has been created by the absence of adequate
maintenance such as to be detrimental to the public health, safety or general welfare or that such
a condition of deterioration or disrepair causes appreciable harm or is materially detrimental to
property or improvements within one thousand (1,000) feet of such portion of the Site.
1.2 Parking and Driveways. The driveways and traffic aisles on the Site shall
be kept clear and unobstructed at all times. No vehicles or other obstruction to vehicular or
pedstrian traffic shall project into any of such driveways or traffic aisles.
1.3 Tenant Compliance. All commercial lease agreements shall be in writing
and shall contain provisions which acknowledge the tenant's lease is subject to the terms and
conditions of these CC&Rs.
1.4 Right of Entry. In the event Owner, or its successor or assign, fails to
maintain the common area of the Site in the above-described condition, and satisfactory progress
is not made in correcting the condition within sixty (60) days from the date of written notice
from City, City may, at its option, and without further notice to Owner, declare the unperformed
maintenance to constitute a public nuisance. Thereafter, City, its employees, contractors or
agents, may cure Owner's default by entering upon the Site and performing the necessary
01005.0019/241614.1
landscaping and/or maintenance. The City shall give Owner reasonable notice of the time and
manner of entry, and entry shall only be at such times and in such manner as is reasonably
necessary to carry out these CC&Rs. The Owner, or its successors and assigns owning the
affected portion of the Site, shall pay such costs as are reasonably incurred by City for such
maintenance, including attorneys' fees and costs.
1.5 Lien. If such costs incurred by City pursuant to Section 1.4 above are not
reimbursed within thirty (30) days after Owner's, or such successor's, receipt of notice thereof,
the same shall be deemed delinquent, and the amount thereof shall bear interest thereafter at a
rate equal to the lesser of ten percent (10%) per annum or the legal maximum until paid. Any
and all delinquent amounts, together with said interest, costs and reasonable attorney's fees, shall
be an obligation of the Owner or such successor as well as a lien and charge, with power of sale,
upon the property interests of Owner or such successor, and the rents, issues and profits of such
property. City may bring an action at law against Owner or such successor obligated to pay any
such sums or foreclose the lien against Owner's or such successor's property interests. Any such
lien shall be created by recordation of a Notice of Claim of Lien against the affected portion of
the Site and may be enforced by sale by the City following recordation of a Notice of Default of
Sale given in the manner and time required by law as in the case of a deed of trust; such sale to
be conducted in accordance with the provisions of Section 2924, et seq., of the California Civil
Code, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any other
manner permitted by law.
Any monetary lien provided for herein shall be subordinate to any bona fide
mortgage or deed of trust covering an ownership interest or leasehold or subleasehold estate in
and to the Site or the applicable portion thereof, and any purchaser at any foreclosure or trustee's
sale (as well as the transferee under any deed or assignment in lieu of foreclosure or trustee's
sale) under any such mortgage or deed of trust shall take title free from any monetary lien
created by these CC&Rs, but otherwise subject to the provisions hereof; provided that, after the
foreclosure of any such mortgage and/or deed of trust, all other assessments provided for herein
to the extent they relate to the expenses incurred subsequent to such foreclosure and are assessed
hereunder to the purchaser at the foreclosure sale, as Owner of the subject Site after the date of
such foreclosure sale, shall become a lien upon the affected portion of the Site upon recordation
of a Notice of Claim of Lien as hereinabove provided.
2. COMPLIANCE WITH LAWS.
2.1 State and Local Laws. Owner or its successors and assigns shall comply
with all ordinances, regulations and standards of the State or City applicable to the Site. Owner
or its successors and assigns shall comply with all rules and regulations of any assessment
district of the City with jurisdiction over the Site.
2.2 Environmental Conditions; Compliance with Soil State and Local Soils
Conditions Requirements. The Site consists of a former landfill. The fill of the former landfill
comprising the Site is not adequately compacted and will require remediation to the extent and in
the manner as may be required by the County of Los Angeles, the City's contract building
department. Such fill and remediation shall be undertaken at the sole cost, and responsibility, of
Owner or any successor owner of the Site. Owner and its successor shall defend, save and hold
01005.0019/241614.1
the City and its elected and appointed boards, commissions, officers, agents, and employees
harmless from any and all claims, costs (including attorneys' fees) and liability for any damages,
personal injury or death, which may arise, directly or indirectly, from the conditions described in
the Section 2.2. Owner and its successors take the Site AS-IS with respect to all environmental
conditions thereon, and shall be responsible for any defects in the Site, including, without
limitation, the physical, environmental and geotechnical condition of the Site, and the existence
of any contamination, hazardous materials, underground storage tanks, vaults, debris, pipelines
or other structures located on, under or about the Site, excepting that nothing herein shall be
construed to require Owner or its successors to hold the City hainiless and/or defend it from any
claims arising from, or alleged to arise from, the sole negligence or gross or willful misconduct
of the City's officers, employees, agents, contractors of subcontractors..
3. INSURANCE.
3.1 Duty to Procure Insurance During Construction. Owner covenants and
agrees for itself, and its assigns and successors-in-interest in the Site, that during construction of
the improvements on the Site (the "Project"), Owner or such successors and assigns shall procure
and keep in full force and effect or cause to be procured and kept in full force and effect for the
mutual benefit of Owner and City, and shall provide City evidence reasonably acceptable to
Executive Director and the City's Risk Manager of the existence of, insurance policies meeting
all requirements for insurance set forth in the DA,
a. Minimum Scope of Insurance. Coverage shall be at least as broad as:
(1) Commercial general liability insurance to include products and
completed operations, independent contractors, broad form property damage, fire, legal, and
personal injury.
(2) Comprehensive automobile liability insurance to include all autos
owned, hired, and non-owned.
(3) Workers' Compensation as required by the Labor Code of the State
of California and employers' liability insurance.
b. Minimum Limits of Insurance. Owner shall maintain or cause to be
maintained limits no less than:
(1) Commercial General Liability: Million Dollars
($ ) combined single limit per occurrence for bodily injury, personal injury, and
property damage. This may be satisfied by a blanket policy, or a program that includes General
Liability and Excess and/or Umbrella Liability policies.
(2) Automobile Liability: Million Dollars
($
) combined single limit per occurrence for bodily injury and property damage.
(3) Workers' Compensation and Employers' Liability: Workers'
Compensation limits as required by the Labor Code of the State of California and employers'
liability limits of (S ) per accident.
01005.0019/241614.1
(4) Such other policies and coverage required by the DA.
c. General Requirements Pertaining to Insurance. All the policies of
insurance required by these CC&Rs and the DA shall be subject to the general insurance
requirements contained in Sections 8.2 through 8.4 of the DA.
4. OBLIGATION TO REPAIR.
4.1 Obligation to Repair and Restore Damage Due to Casualty Covered by
Insurance. If a portion of the Project shall be totally or partially destroyed or rendered wholly or
partly uninhabitable by fire or other casualty, Owner, or its successor with respect to the affected
portion of the Project, shall either (i) promptly proceed to obtain any available insurance
proceeds and take all steps necessary to begin reconstruction and, upon receipt of insurance
proceeds, to promptly and diligently commence and to thereafter pursue the repair or
replacement of the affected portion of the Project to substantially the same condition as existed
prior to such damage or destruction, or (ii) if Owner, or such successor with respect to the
affected portion of the Site, elects not to restore or replace such improvements, such Owner or
successor shall promptly remove all debris from the affected portion of the Site and place the
affected portion of the Site in a clear and secure condition. City shall cooperate with Owner, at
no expense to City, in obtaining any governmental permits required for the repair, replacement,
or restoration of any improvements. Following any such event of damage or destruction, Owner,
or its successor with respect to the affected portion of the Site, may also reconstruct such other
improvements on the Site as are consistent with applicable land use regulations provided it shall
obtain all legally required approvals from the City and other governmental agency or agencies
with jurisdiction with respect to those improvements.
5. ENFORCEMENT.
In the event Owner defaults in the performance or observance of any covenant,
agreement or obligation of Owner pursuant to these CC&Rs, and if such default remains uncured
for a period of thirty (30) days after written notice thereof shall have been given by City, or, in
the event said default cannot reasonably be cured within said time period, Owner has failed to
commence to cure such default within said thirty (30) days and thereafter fails to diligently
prosecute said cure to completion, then City may declare an "Event of Default" to have occurred
hereunder, and, at its option, may take one or more of the following steps:
5.1 By mandamus or other suit, action or proceeding at law or in equity,
require Owner to perform its obligations and covenants hereunder or enjoin any acts or things
which may be unlawful or in violation of these CC&Rs; or
5.2 Take such other action at law or in equity as may appear necessary or
desirable to enforce the obligations, covenants and agreements of Owner hereunder; or
5.3 Enter the Site and cure the Event of Default.
Except as otherwise expressly stated in these CC&Rs, the rights and remedies of the
parties are cumulative, and the exercise by any party of one or more of its rights or remedies
01005.0019/241614.1
shall not preclude the exercise by it; at the same or different times, of any other rights or
remedies for the same default or any other default by another party.
6. NONDISCRIMINATION.
There shall be no discrimination against or segregation of any person, or group of
persons, on account of race, color, creed, religion, sex, gender, sexual orientation, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Site, or any part thereof, nor shall Owner, or any person claiming under or
through it, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees of the Site, or any part thereof (except as permitted by these
CC&Rs).
7 COVENANTS TO RUN WITH THE LAND.
Owner hereby subjects the Site to the covenants, reservations, and restrictions set forth in
these CC&Rs. City and Owner hereby declare their express intent that all such covenants,
reservations, and restrictions shall be deemed covenants running with the land and shall pass to
and be binding upon the Owner's successors in title to the Site; provided, however, that on the
termination of these CC&Rs said covenants, reservations and restrictions shall expire. All
covenants without regard to technical classification or designation shall be binding for the
benefit of the City, and such covenants shall run in favor of the City for the entire term of these
CC&Rs, without regard to whether the City is or remains an owner of any land or interest therein
to which such covenants relate. Each and every contract, deed or other instrument hereafter
executed covering or conveying the Site or any portion thereof shall conclusively be held to have
been executed, delivered and accepted subject to such covenants, reservations, and restrictions,
regardless of whether such covenants, reservations, and restrictions are set forth in such contract,
deed or other instrument.
City and Owner hereby declare their understanding and intent that the burden of the
covenants set forth herein touch and concern the land. City and Owner hereby further declare
their understanding and intent that the benefit of such covenants touch and concern the land by
enhancing and increasing the enjoyment and use of the Site by the intended beneficiaries of such
covenants, reservations, and restrictions, and by furthering the public purposes of protecting the
public health, safety and welfare.
Owner hereby agrees to hold, sell, and convey the Site subject to the terms of these
CC&Rs. Owner also grants to the City, as a third party beneficiary hereof, the right and power
to enforce the terms of these CC&Rs against the Owner and all persons having any right, title or
interest in the Site or any part thereof, their heirs, successive owners and assigns.
All covenants, if any, set forth herein concerning construction and development of any
improvements on the Site, the insurance requirements set forth in Section 3 and any rights to
satisfy liens shall cease and terminate upon issuance of a certificate of occupancy for the Project.
The covenants against discrimination set forth herein shall remain in effect in perpetuity. All
other covenants shall cease and terminate concurrent with the termination or expiration of the
01005.0019/241614.1
DA. The teini "Owner" as used herein shall initially mean and refer to IOP and shall thereafter
mean and refer to the then owner of fee title to the affected portion of the Site from time to time.
Upon transfer of fee title to a portion of the Site to a successor Owner, the prior Owner shall be
released from any further liability under these CC&Rs first arising with respect to the transferred
portion of the Site after the date of such transfer.
EMPLOYMENT OF LOCAL RESIDENTS.
Owner and its successors and assigns shall comply with all requirements for the
employment outreach for local residents that are set forth in the DA, which requirements are
deemed incorporated herein by this reference.
INDEMNIFICATION.
Owner, while in possession of the Site, and each successor or assign of Owner while in
possession of the Site, shall remain fully obligated for the payment of any property taxes and
assessments applicable to its interest in the Site. Owner, and its successors and assigns, shall
indemnify, defend and hold harmless Agency and City from and against any loss, liability, claim
or judgment arising from their breach of the foregoing covenant. The foregoing indemnification,
defense, and hold harmless agreement shall only be applicable to and binding upon the party then
owning the Site or applicable portion thereof.
Further, all terms of indemnity set forth in the DA, including but not limited to DA
Section 3.11 and Article 6, are incorporated into the terms of these CC&Rs by this reference and
deemed terms hereof
10. ATTORNEY'S FEES.
In the event that a party to these CC&Rs brings an action against the other party hereto
by reason of the breach of any condition, covenant, representation or warranty in these CC&Rs,
or otherwise arising out of the DA, the prevailing party in such action shall be entitled to recover
from the other reasonable expert witness fees, and its reasonable attorney's fees and costs.
Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to
attorney's fees shall be entitled to all other reasonable costs for investigating such action,
including the conducting of discovery.
11, AMENDMENTS.
These CC&Rs shall be amended only by a written instrument executed by both the
Owner and City or their successors in title, and duly recorded in the real property records of the
County of Los Angeles.
12. NOTICES.
Any notice required to be given hereunder shall be made in writing and shall be given by
personal delivery, certified or registered mail, postage prepaid, return receipt requested, at the
addresses specified below, or at such other addresses as may be specified in writing by the
parties hereto:
01005.0019/241614.1
To City:
With copy to:
To Owner:
City of Irwindale
5050 N. Irwindale Ave.
Irwindale, CA 91706
Attn: City Manager
Aleshire & Wynder
18881 Von Karman Avenue, Suite 1700
Irvine, CA 92612
Attn: Fred Galante
Irwindale Outlet Partners, LLC
202 South Lake Ave., Suite 300
Pasadena, CA 91101
Attn:
The notice shall be deemed given three (3) business days after the date of mailing, or, if
personally delivered, when received.
13. SEVERABILITY /WAIVER/INTEGRATION/LENDER PROTECTION.
13.1 Severability. If any provision of these CC&Rs shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not
in any way be affected or impaired thereby.
13.2 Waiver. A waiver by either party of the performance of any covenant or
condition herein shall not invalidate these CC&Rs nor shall it be considered a waiver of any
other covenants or conditions, nor shall the delay or forbearance by either party in exercising any
remedy or right be considered a waiver of, or an estoppel against, the later exercise of such
remedy or right.
13.3 Owner's Breach Does Not Defeat Mortgage Lien. Owner's breach of any
of the covenants or restrictions contained in these CC&Rs shall not defeat or render void or
invalid the lien of any mortgage, deed of trust or other security interest encumbering the Site
made in good faith and for value but, unless otherwise provided herein, the terms, covenants,
conditions, restrictions, easements and reservations of these CC&Rs shall be binding and
effective against the holder of such encumbrance whose interest is acquired by foreclosure,
trustee's sale, deed or assignment in lieu thereof, or otherwise.
15. GOVERNING LAW.
These CC&Rs shall be governed by the laws of the State of California.
[SIGNATURE PAGE FOLLOWS]
01005.0019/241614.1
IN WITNESS WHEREOF, the Owner has executed these CC&Rs by its duly authorized
representative on the date first written hereinabove.
"OWNER"
Developer: IRWINDALE OUTLET
PARTNERS, LLC, a Delaware limited liability
corporation
By:
Haixigo Lin, Majority Owner
By:
01005.0019/241614.1
APPROVED BY CITY OF IRWINDALE as third-party beneficiary to the CC&Rs:
City: CITY OF IRWINDALE, a municipal
corporation
By:
Mark A. Breceda, Mayor+
ATTEST:
By
City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
By
Fred Galante, City Attorney
01005.0019/241614.1
STATE OF
) ss.
COUNTY OF
On , before me, , a Notary Public
in and for said 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/she executed
the same in his/her authorized capacity, and that by his/her 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.
Notary Public in and for said State
(SEAL)
01005.0019/241614.1
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
01005.0019/241614.1
Exhibit Page - Legal(exhibit)(08-07)
Escrow No.:
Locate No.: CAC117756-7756-5680-0068005891
Title No.: 12-68005891-SS
EXHIBIT A"
PARCEL 1:
Parcel 1, in the City of Irwindale, County of Los Angeles, State of California, as shown on Parcel Map No. 21968, filed in Book
237 Pages 26 and 27 of Parcel Maps, in the office of the County Recorder of said County.
PARCEL 2:
That area shown as "Remainder Parcel 50.30 Acres" on Parcel Map No. 21968, in the City of Irwindale, County of Los Angeles,
State of California, as per Parcel Map filed in Book 237 Pages 26 and 27 of Parcel Maps, in the office of the County Recorder
of said County.
APN: 8532-004-022, 8532-004-025, 8532-004-026
EXHIBIT "E"
SCHEDULE OF ESTIMATED CITY FEES
[TO BE ATTACHED1
DEVELOPMENT AGREEMENT
-1
Speedway Outlets Shopping Center
Exhibit E
1017711.1
DRAFT
EXHIBIT "F"
SIGN DESIGN DEPICTIONS
[TO BE ATTACHED]
DEVELOPMENT AGREEMENT
Speedway Outlets Shopping Center
Page 1 of 1
1017711.1