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Ordinance No. 1299ORDINANCE NO. 1299 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING WAREHOUSE DEVELOPMENT AGREEMENT NO. WH-001 FOR ASSESSOR PARCEL NUMBERS 6310-005-003, 6310-005-004, 6310-005-009, AND 6310-005-010 BETWEEN THE CITY OF VERNON AND GPT VERNON OWNER, LP SECTION 1. Recitals. A. GPT Vernon Owner, LP (Developer) currently has an ownership interest in that portion of real property within the City of Vernon (City), located at 5764 Alcoa Avenue, and wishes to remove existing warehouse buildings and associated structures totaling 145,950 square feet on a 7.12 acre (310,147 square feet) lot, and replace them with a single 153,000 square foot warehouse building. B. The City and Developer have negotiated and prepared Warehouse Development Agreement No. WH-001 (Development Agreement) the purpose of which is to memorialize, among other things, the respective duties of the parties with respect to the development, as well as the benefits that will inure to each of the parties during the term of the Development Agreement. C. Pursuant to Vernon Municipal Code Chapter 17.84 and Section 17.22.035, the City Council of the City of Vernon desires to approve the Development Agreement and make the findings set forth herein. THE CITY COUNCIL OF THE CITY OF VERNON HEREBY ORDAINS: SECTION 2. The City Council of the City of Vernon finds and determines that the above recitals are true and correct and are a substantial part of this ordinance. SECTION 3. This ordinance was assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the environmental regulations of the City. The City Council finds that this ordinance is not subject to CEQA because the adoption of this ordinance is not a “project” pursuant to CEQA Guidelines Section 15302, because the proposed development consists of the replacement and reconstruction of existing facilities where the new structure will be located on the same site as the structures being replaced and will have substantially the same size, purpose, and capacity as the structures being replaced. SECTION 4. Purpose and Authority. The purpose of this ordinance is to approve Warehouse Development Agreement No. WH-001 with GPT Vernon Owner, LP allowing the development of a 153,000 square foot warehouse at 5764 Alcoa Avenue. This ordinance is authorized pursuant to Vernon Municipal Code Chapter 17.84 and Section 17.22.035, and Government Code Sections 65864 through 65860.5.        Ordinance No. 1299 Page 2 of 3 _______________________ SECTION 5. Findings. In adopting this ordinance, the City Council makes the following findings: A. The proposed Development Agreement is consistent with the objectives, policies, and general land uses and programs of the City of Vernon General Plan. B.The proposed Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the real property is located. C. The proposed Development Agreement will not be detrimental to the health, safety, and general welfare of persons residing in the immediate area, or detrimental to the general welfare of residents of the City as a whole. D.The City Council approves and adopts the recommendations presented by the Director of Public Works pursuant to Vernon Municipal Code Section 17.22.035(B), as set forth in the agenda item report and during the public hearing on the proposed Development Agreement. E. The proposed Development Agreement is consistent with the provisions of Government Code Sections 65864 through 65869.5. F. The City Council has held a duly public noticed public hearing on the proposed Development Agreement and has considered the testimony presented at such public hearing. SECTION 6. Action. The City Council hereby approves Warehouse Development Agreement No. WH-001, in substantially the form presented to the City Council, and attached to this ordinance as Exhibit A. The Mayor is authorized and directed to execute the Development Agreement for and on behalf of, the City of Vernon, and the City Clerk or Deputy City Clerk shall attest thereto. SECTION 7. If any section, subsection, paragraph, sentence, clause, phrase, or portion thereof, of this ordinance is declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council declares that it would have adopted this ordinance, and each section, subsection, paragraph, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, paragraphs, sentences, clauses, phrases, or portions thereof, be declared invalid or unconstitutional. To this end, the provisions of this ordinance are declared to be severable. SECTION 8. The City Clerk or Deputy City Clerk shall certify the adoption and publish this ordinance as required by law.        Ordinance No. 1299 Page 3 of 3 _______________________ SECTION 9. This ordinance shall become effective after the thirtieth day following its adoption. APPROVED AND ADOPTED April 2, 2024. _______________________ CRYSTAL LARIOS, Mayor ATTEST: YONNIE PARKER, Deputy City Clerk (seal) APPROVED AS TO FORM: ZAYNAH N. MOUSSA, City Attorney I CERTIFY THAT THE FOREGOING ORDINANCE NO. 1299 was passed and adopted by the City Council of the City of Vernon at the regular meeting on April 2, 2024, by the following vote: AYES: 3 Council Members: Rivera, Ybarra, Larios NOES: 0 ABSENT: 2 Council Members: Lopez, Merlo ABSTAIN: 0 ________________________________ YONNIE PARKER, Deputy City Clerk (seal)        RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Vernon 4305 S. Santa Fe Avenue Vernon, CA 90058 Attn: City Clerk Exempt from Recording Fees Pursuant to Government Code Sections 6103 ______________________________________________________________________________ APNs: (Space Above This Line Reserved for Recorder’s Use Only) WAREHOUSE DEVELOPMENT AGREEMENT NO. WH-001 BY AND BETWEEN THE CITY OF VERNON AND GPT VERNON OWNER LP ([KLELW$ Ordinance No. 1299 Page 4 of 31 ___________________        DEVELOPMENT AGREEMENT This DEVELOPMENT AGREEMENT (“Development Agreement” or “Agreement”) is entered into as of the Effective Date, by and between the CITY OF VERNON, a California municipal corporation and California charter City (“City”), and GPT VERNON OWNER LP, a Delaware limited partnership (“Developer”). City and Developer may herein be referred to individually as a “Party,” and collectively as the “Parties.” RECITALS This Agreement is entered upon the basis of the following facts, understandings and intentions of City and Developer. A. Purpose. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Government Code sections 65864 et seq. (the “Development Agreement Statute”), which authorizes cities to enter into agreements for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property. In accordance with the Development Agreement Statute, City has enacted Chapter 17.84 of the Vernon City Code to implement procedures for the processing and approval of development agreements (“Chapter 17.84”). The provisions of the Development Agreement Statute and City’s development agreement policies Chapter 17.84 are herein referred to collectively as the “Development Agreement Law.” This Agreement has been drafted and processed pursuant to the Development Agreement Law. B. The Property. Developer has an equitable interest in or is the fee owner of approximately 7.12 acres of real property located in Vernon, California, comprised of Alameda County Assessor’s Parcel Numbers which property is legally described in Exhibit A-1 (“Legal Description”) and shown on the map attached hereto as Exhibit A-2 (“Depiction”). The Legal Description and Depiction comprise the real property that will be subject to this Agreement as provided in Section 1.2. (“Property”). C. The Project. Consistent with City’s land use planning objectives, Developer has proposed a project that is depicted in the Site Plan Review attached hereto as Exhibit B-1, depicted on the Landscape Plan attached hereto as Exhibit B-2, and depicted on the Elevations and Materials Board attached hereto as Exhibit B-3(collectively “Project”), which generally consists of the demolition of existing buildings and surface parking lots, and the development. The Site Plan Review, Landscape Plan, and Elevations and Materials Board were approved by the City on January 26, 2024. D. Developer’s Assurance. The complexity, magnitude and long-range nature of the Project would be difficult for Developer to undertake if City had not determined, through this Development Agreement, to provide a sufficient degree of certainty in the land use regulatory process to justify the substantial financial investment associated with development of the Project. As a result of the execution of this Development Agreement, both Parties can be assured that the Project can proceed without disruption caused by a change in City planning and development policies and requirements, which assurance will thereby reduce the actual or perceived risk of planning, financing and proceeding with construction of the Project. Ordinance No. 1299 Page 5 of 31 ___________________        E. City Benefits. City has determined that by entering into this Development Agreement: (1) City will ensure the productive use of property and foster orderly growth and quality development in City; (2) development will proceed in accordance with the goals and policies set forth in City’s General Plan; (3) and City will receive increased property tax revenues and Community Benefit Fees (as described hereinbelow). F. Consistency with General Plan. As required by Government Code section 65867.5, City has found that the provisions and purposes of this Development Agreement are consistent with the goals, policies, standards and land use designations specified in City’s General Plan. G. Substantial Benefits. For the reasons recited herein, City and Developer have determined that the Project is a development for which a Development Agreement is appropriate. This Development Agreement will reduce the uncertainty regarding the Project, thereby encouraging planning for investment in and commitment to use and develop the Property in a manner beneficial to City residents and surrounding properties. Use and development of the Property will provide employment and additional revenue to the City and contribute to the provision of needed infrastructure enhancements and public benefits, thereby achieving the goals and purposes for which the Development Agreement Law was enacted. NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein and other valuable consideration, City and Developer agree as follows: ADMINISTRATION 1.1 Definitions. This Development Agreement includes defined terms as provided throughout the Agreement, including the following definitions: 1.1.1 “Applicable Law” shall mean any ordinances, resolutions, orders, rules, official policies, standards, specifications, guidelines, or other regulations, which are promulgated or adopted by City (including but not limited to any City agency, body, department, officer, or employee) applicable to the development of the Property, in force and effect on the Effective Date. 1.1.2 “Applicable New City Laws” shall mean New City Laws that are enacted by City after the Effective Date and are specifically required to be applied by County, State or Federal laws or regulations. 1.1.3 “Excused Delay” shall mean delay due to the following, provided that Developer can reasonably document that such disruptions prevent, limit, retard or hinder the ability to complete the Project: (1) war, insurrection, terrorism, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, pandemics, epidemics, quarantine restrictions, or freight embargoes; (2) unusually severe weather; (3) initiatives, referenda, or litigation challenging the Existing Approvals or Subsequent Approvals; or (4) failure to act by a governmental agency (except that the failure to act by City shall not excuse performance by City). 1.1.4 “Existing Approvals” shall mean the permits and approvals granted to Developer by City for the Project. Ordinance No. 1299 Page 6 of 31 ___________________        1.1.5 “New City Laws” shall mean any ordinances, resolutions, orders, rules, official policies, standards, specifications, guidelines or other regulations, which are promulgated or adopted by City (including but not limited to any City agency, body, department, officer or employee) after the Effective Date. New City Laws include amendments to Applicable Law. 1.1.6 “Subsequent Approvals” shall mean the permits and approvals granted to Developer by City for the Project after the Effective Date, as described in Section 4.5. 1.2 Effective Date. The Effective Date of this Agreement shall be May 2, , 2024, which date is thirty (30) calendar days after the Ordinance approving this Agreement is adopted by second reading, provided that this Agreement is fully executed by the Parties. 1.3 Term. 1.3.1 Initial Term. The term of this Agreement shall commence on the Effective Date and shall continue for a period of six (6) years after the Effective Date, unless this Agreement is otherwise terminated or extended in accordance with the provisions of this Agreement (the “Term”). The Term has been established by the Parties as a reasonable estimate of the time required to carry out the Project, develop the Project and obtain the public benefits of the Project. 1.3.2 Extensions of Term. The Term may be extended as provided herein. a. If Developer is deprived of the benefits of this Agreement as a result of an Excused Delay, then the Term of this Agreement shall be extended for the period of such Excused Delay; provided, however, that in no event shall the total period of all Excused Delays exceed two (2) years. If the conditions warranting any Excused Delay extend beyond two (2) years, amendment of this Agreement shall be required in order to further extend the Term. Developer shall notify City of its intent to claim an Excused Delay within thirty (30) days of the commencement of the cause of such delay, the specific grounds for same, and the anticipated period of the Excused Delay, if known (“Notice of Excused Delay”). After City’s receipt of such notice, City may reasonably object in writing to Developer’s Notice of Excused Delay by delivering written notice to Developer setting forth the reasons for City’s objections. If City does not object in writing to Developer’s Notice of Excused Delay within thirty (30) days after receipt of such notice, then the Term of this Agreement shall be modified in accordance with the Notice of Excused Delay, subject to the limitations herein. If City timely objects in writing to Developer’s Notice of Excused Delay, City and Developer shall meet and confer regarding the grounds of the Excused Delay. Developer acknowledges that changes in economic conditions, market conditions or demand, or the inability to obtain financing or other lack of funding to complete the Project shall not constitute grounds for any Excused Delay. b. Notwithstanding Section 1.3.2(a), so long as Developer is not in default under this Agreement, Developer shall have one (1) option to extend the Term for an additional period of nine (9) years (the “Extension”). To exercise the Extension to extend the Term pursuant to this subsection, Developer shall provide written notice of intention to exercise the Extension and pay an extension fee of Five Hundred Thousand Dollars ($500,000). Within five (5) business days after Developer has given the notice of intention and delivered the extension fee, City shall confirm in writing that the Extension is in effect. Ordinance No. 1299 Page 7 of 31 ___________________        1.3.3 Memorandum of Extension. Upon City and Developer’s concurrence regarding the existence and duration of any Excused Delay, City and Developer shall execute and record, within ten (10) days after written request of any Party, a memorandum evidencing any approved extension of the Term pursuant to Section 1.3.1. However, recordation of a memorandum shall not be a condition of an approved extension of the Term. 1.4 Developer Representations and Warranties. Developer represents and warrants to City that, as of the Effective Date: 1.4.1 Developer is duly organized and validly existing under the laws of the State of its incorporation or formation, and is in good standing and has all necessary powers under the laws of the State of California to own property interests and in all other respects to enter into and perform its respective undertakings and obligations under this Agreement. 1.4.2 The execution and delivery of this Agreement and the performance of the obligations of Developer hereunder have been duly authorized by all necessary corporate, partnership or company action and all necessary shareholder, partner or member approvals have been obtained. 1.4.3 This Agreement is a valid obligation of Developer and is enforceable in accordance with its terms, and Developer has acquired the necessary legal or equitable interest in the Property as required by the Development Agreement Law. DEVELOPMENT AND USE OF THE PROPERTY 2.1 Vested Development Standards. City hereby grants to Developer the vested right to develop, construct and use the Property for uses authorized by the Applicable Law and this Agreement, provided that the provisions of this Agreement and the obligations required by the Existing Approvals are fulfilled. To the extent permitted by law, and except as otherwise provided herein, no future modification of the Applicable Law, including but not limited to, City’s General Plan, Municipal Code, ordinances, policies or regulations shall apply to the Property that purport to (i) limit the use of the Property, the density and intensity of use (including but not limited to maximum size and floor area ratios of commercial/retail buildings), the maximum height and size of proposed buildings; (ii) impose exactions, requirements for reservation or dedication of land for public purposes, the subdivision of land, or requirements for infrastructure, public improvements, or public utilities, other than as provided in this Agreement or pursuant to the Existing Approvals; (iii) impose conditions upon the development of the Property other than as permitted by the Applicable Law, the Existing Approvals and this Agreement; or (iv) limit the rate or timing of development of the Property. 2.1.1 Permitted Uses. Without limiting anything in the Existing Approvals, the permitted uses shall include approximately 153,000 square feet of industrial space, as is generally depicted in the Site Plan (collectively, the “Permitted Uses”). 2.1.2 Density and Design Standards. Without limiting the effect of Section 2.1, Developer shall have the vested right to develop the Property in conformance with and up to the maximum density indicated in the Site Plan, Permitted Density and Intensity of Use, in conformance with the existing General Plan designation. Minimum and maximum lot size, maximum gross lot Ordinance No. 1299 Page 8 of 31 ___________________        coverage, maximum floor area, setbacks and other development standards shall be as specified in the Existing Approvals. 2.2 Impact Fees, Exactions, Processing Fees and Taxes. Except as otherwise provided herein, Developer agrees to pay when due any required fees, taxes, assessments, impact fees and other monetary and non-monetary exactions as required by this Agreement. 2.2.1 Federal/State Compliance Fees. City may charge and Developer agrees to pay any new, increased or modified taxes, assessments, impact fees or other monetary or nonmonetary exactions, whether imposed as a condition of or in connection with any Existing Approvals, Subsequent Approvals or otherwise, which are uniformly imposed and required by any Federal or State statute or regulation that is enacted or adopted after the Effective Date of this Agreement. 2.2.2 City Processing Fees. City may charge and Developer agrees to pay all regular processing fees, including application, permit processing, plan check (time and materials) and inspection and monitoring fees (“Processing Fees”), for land use approvals, grading and building permits, and other permits and entitlements in connection with any Subsequent Existing Approval or otherwise, which are in force and effect on a City-wide basis at the time those permits, approvals or entitlements are applied for, and which are intended to cover the actual costs of processing the foregoing. 2.3 Timing of Commencement of Construction and Completion. Developer shall have the vested right to develop the Project in such order, at such rate and at such times as Developer deems appropriate in the exercise of its business judgment, and in accordance with the phasing requirements set forth herein and in the Existing Approvals. In particular, the Parties hereto seek to avoid the result applied by the California Supreme Court in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, that the failure of parties therein to consider, and expressly provide for, the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement. The Parties acknowledge that Developer shall have the vested right to develop the Project in such order and at such rate and at such times as Developer deems appropriate in the exercise of its business judgment, so long as each phase of construction can operate independently, consistent with the Phasing Plan, as determined by City in its reasonable discretion, and except as otherwise provided for in this Agreement. The adoption of an initiative after the Effective Date by City’s electorate shall have no effect on Developer’s such business judgment. 2.4 New City Laws; Reservations of Authority. Notwithstanding any other provision of this Agreement to the contrary, the following New City Laws shall apply to the development of the Property: 2.4.1 Fees. City updates to Processing Fees, as such fees and charges are adjusted from time to time, provided such updates are uniformly applied on a City-wide basis to all substantially similar types of development projects and properties similar to the Project. 2.4.2 Procedural Rules. Regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure, provided such procedures are uniformly applied on a City-wide basis to all substantially similar types of Development Projects and properties similar to the Project. Ordinance No. 1299 Page 9 of 31 ___________________        2.4.3 Construction Standards. Regulations governing construction standards and specifications, including City’s Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code, Grading and Erosion Control provisions and all other uniform construction codes then applicable in City at the time of permit application. 2.4.4 Health and Safety Standards. New City Laws which may be in conflict with the Existing Approvals, but which are necessary to protect persons or property from dangerous or hazardous conditions that create a threat to the public health or safety or create a physical risk, based on findings supported by substantial evidence by City identifying dangerous or hazardous conditions requiring such changes in the law, why there are no feasible alternatives to the imposition of such changes, and how such changes would alleviate the dangerous or hazardous condition. 2.4.5 Green Building Standards. New City Laws establishing or otherwise related to green building standards for residential or commercial development, as in effect at the time of Developer’s application for the applicable building permit. 2.4.6 Laws Not in Conflict with this Agreement. New City Laws applicable to the Property, which do not conflict with this Agreement or the Existing Approvals, provided such New City Laws are uniformly applied on a City-wide basis to all substantially similar types of development projects and properties and do not materially affect Developer’s ability to develop the Property or materially increase the costs of developing the Property consistent with the Applicable Law or the Existing Entitlements. 2.4.7 New Other Laws. City shall not be precluded from adopting and applying Applicable New City Laws to the Project to the extent that such Applicable New City Laws are specifically required to be adopted and applied to the Project by County, State or Federal laws or regulations enacted after the Effective Date. 2.5 Initiatives and Referenda. If any City ordinance is enacted or imposed by a citizen- sponsored initiative or referendum, and if such new City ordinance conflicts with the Applicable Law or Existing Approvals or reduces the development rights or assurances provided by this Agreement (“Citizen’s Initiative”), such Citizen’s Initiative shall not apply to the Property or Project; provided, however, the Parties acknowledge that City’s approval of this Agreement is a legislative action subject to the possibility of referendum. Without limiting the generality of any of the foregoing, no moratorium or other limitation (whether relating to the rate, timing, phasing or sequencing of development) affecting subdivision maps, use permits, building permits or other entitlements to develop or use the Property that are approved or to be approved, issued or granted by City shall apply to the Property or Project during the Term. City, except as otherwise provided herein and except to submit to vote of the electorate initiatives and referendums required by law to be placed on a ballot and fulfill any legal responsibility to defend a ballot measure passed by its voters, shall not support, adopt or enact any New City Law, or take any other action which would violate the express provisions or spirit and intent of this Agreement. 2.6 Regulation by Other Public Agencies. Developer agrees and understands that City does not have authority or jurisdiction over any other public agency’s ability to grant governmental approvals or permits or to impose a moratorium or other limitations that may affect the Project. 2.7 Nuisance. Developer shall not use or permit the use of any portion of the Project for any offensive, noisy or dangerous trade, business manufacturing activity or occupation; for any Ordinance No. 1299 Page 10 of 31 ___________________        activity which constitutes a nuisance or violated public policy; in violation of any law, ordinance rule or regulation of any governmental authority with jurisdiction over any portion of the Project. Such obligation shall terminate as to any legal lot upon issuance of a certificate of occupancy for a residential unit. PUBLIC BENEFITS 3.1 Community Benefit Contribution. Developer agrees, as a material inducement to the certainty of development rights agreed to in this Agreement, to pay the following community benefit fee, in the amounts and at such times as set forth herein: 3.1.1 Payment 1. Prior to and as a condition to issuance of a grading permit, Developer shall deliver to the City Two Hundred Fifty Thousand Dollars ($250,000). 3.1.2 Payment 2. Prior to and as a condition to issuance of a certificate of occupancy, Developer shall deliver to the City an estimated annual community benefit fee payment (an “Estimated ACBF Payment”) not to exceed Two Hundred Fifty Thousand Dollars ($250,000). The Estimated ACBF Payment shall be based upon the projected electrical usage for the upcoming 12-month period based upon Developer’s reasonable estimate (subject to approval of the General Manager of the City’s Department of Public Utilities) of expected electrical usage of occupant(s) of the Property. The formula set forth below in Section 3.2 will be applied to the estimate of expected electrical usage to calculate the Estimated ACBF. 3.1.3 Payment 3. On the date that is one (1) year after Payment 2 is made, Developer shall deliver to the City an Estimated ACBF Payment not to exceed Two Hundred Fifty Thousand Dollars ($250,000), calculated in the same manner as provided in Section 3.1.2. 3.1.4 Payment 4. On the date that is two (2) years after Payment 2 is made, Developer shall deliver to the City an Estimated ACBF Payment not to exceed Two Hundred Fifty Thousand Dollars ($250,000), calculated in the same manner as provided in Section 3.1.2. 3.2 Calculation of Annual Community Benefit Fee. The final annual community benefit fee payment shall be calculated annually based upon the City electrical power utility user tax (“UUT”) paid by the occupant(s) of the Property for the preceding calendar year as provided herein. The final annual community benefit fee payment shall be calculated based upon the actual user utility tax paid for electrical usage for the twelve (12) month period following an Estimated ACBF. The final annual community benefit fee shall be calculated as follows: 3.2.1 If the Property has generated at least Ten (10) cents of UUT per square foot of building floor area, the final annual community benefit fee shall be $150,000. 3.2.2 If the Property has generated at least Twenty (20) cents of UUT per square foot of building floor area, the final annual community benefit fee shall be $100,000. 3.2.3 If the Property has generated at least Thirty (30) cents of UUT per square foot of building floor area, the final annual community benefit fee shall be $50,000. Ordinance No. 1299 Page 11 of 31 ___________________        3.2.4 If the Property has generated at least Forty (40) cents of UUT per square foot of building floor area, the final annual community benefit fee shall be zero (0). 3.2.5 If the Estimated ACBF previously paid for a given year is less than the final annual community benefit fee payment amount, Developer shall within thirty (30) days written notice of underpayment (including City’s evidence relied upon to make such determination) remit the unpaid amount to the City. In no event shall City be required to refund to Developer any Estimated ACBF regardless of the final annual community benefit fee payment amount. By way of example and for avoidance of doubt, if Developer makes an Estimated ACBF for Year 2 in the amount of $100,000, and after the end of Year 2 City determines the final annual community benefit fee amount is $50,000, Developer is not entitled to any refund of the Estimated ACBF. If the final annual community benefit payment is determined to be $150,000, Developer is obligated to remit an additional $50,000 to City within the time provided. 3.3 Use Tax Point of Sale/Use Designation. Developer shall use good faith efforts to the extent allowed by law to require all persons and entities providing (i) forklifts and (ii) materials and fixtures to be used for internal materials movement (i.e., the racking system) , to (a) obtain a use tax direct payment permit; and (b) designate the Property as the place of use of materials and/or fixtures used in the construction of the Project in order to have the full local use tax portion of the sales and use tax distributed directly to the City. Developer shall instruct each of its contractors, and all subcontractors, to cooperate with the City to ensure the local use tax is allocated to City as applicable. AMENDMENT AND SUBSEQUENT APPROVALS 4.1 Amendment to Development Agreement. This Agreement may only be amended or canceled in whole or in part by the mutual consent of both Parties in writing. City’s review and approval of an amendment to this Agreement shall be strictly limited to consideration of only those provisions to be added or modified. No amendment, modification, waiver or change to this Agreement or any provision hereof shall be effective for any purpose unless it is specifically set forth in a writing that expressly refers to this Agreement and is signed by the duly authorized representatives of both Parties. All amendments to this Agreement shall be reviewed by the Director of Public Works and considered by the City Council and, if approved, will become part of the Existing Approvals. 4.2 Operating Memoranda. If, during the Term of this Agreement, City and Developer agree that minor clarifications of this Agreement are necessary or appropriate, City and Developer shall effectuate such clarifications by recording an operating memorandum approved by City and Developer, which, after execution and recordation, shall be attached hereto and become part of the Existing Approvals. Any proposed operating memorandum that does not substantially affect (i) the Term of this Agreement, (ii) permitted uses of the Property; (iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions or requirements for Subsequent Approvals, (v) the density or intensity of the use of the Property or the maximum height or size of proposed buildings, (vii) monetary contributions by Developer, or (viii) Developer’s Affordable Housing obligations hereunder may be deemed by City as a “Minor Amendment” subject to implementation through an operating memorandum and shall not, except to the extent otherwise required by law, require notice or public hearing before the parties may execute an amendment hereto. The following Ordinance No. 1299 Page 12 of 31 ___________________        modifications to the Project may constitute Minor Amendments, in City’s sole and reasonable discretion: (a) changes in landscaping; (b) variations in the location of structures that do not substantially alter the Tentative Map; (c) variations in the location of utilities or other infrastructure connections or facilities not materially affecting design concepts; (d) minor adjustments to the Tentative Map, Final Map or Property legal description; (e) minor variations in park or plaza configurations that do not reduce the overall acreage or proposed facilities; and (f) minor modifications to the Phasing Plan as long as phases continue to operate independently and uses provided in a particular phase are compatible. The City Administrator shall have authority to execute a Minor Amendment, in his or her discretion, or seek approval of a Minor Amendment by City resolution. The City Administrator, in consultation with the City Attorney, shall make the determination on behalf of City whether a requested clarification may be effectuated as an operating memorandum or whether the requested clarification requires formal amendment hereof. 4.3 Formal Amendment. Any amendment to this Agreement other than a Minor Amendment shall require noticed public hearings before the City Council consistent with the Development Agreement Law (“Formal Amendment”). 4.4 Amendments to Existing Approvals. Notwithstanding any other provision of this Development Agreement, Developer may seek and City may review and grant amendments or modifications to the Existing Approvals (including the Subsequent Approvals) subject to the following (except that the procedures for amendment of this Development Agreement are set forth in Section 4.1 herein). Existing Approvals other than this Development Agreement may be amended or modified from time to time, but only at the written request of Developer or with the written consent of Developer (at its sole discretion). All amendments to Existing Approvals shall automatically become part of the Existing Approvals, except to the extent such amendments are considered by the City Administrator, in his or her sole discretion and in consultation with the City Attorney, to require a Formal Amendment of this Agreement. 4.5 Subsequent Approvals. In order to develop the Project as contemplated in this Agreement, the Project will require land use approvals, entitlements, development permits, and use or construction approvals in addition to the Existing Approvals, which may include, without limitation: Site Development Reviews, administrative use permits, variances, subdivision approvals, street abandonments, demolition permits, improvement agreements, infrastructure agreements, grading permits, building permits, lot line adjustments, site plans, sewer and water connection permits, certificates of occupancy, parcel maps, lot splits, landscaping plans, master sign programs, transportation demand management programs, encroachment permits, and amendments thereto and to the Existing Approvals (collectively, “Subsequent Approvals”). At such time as any Subsequent Approval applicable to the Property is approved by City, such Subsequent Approval shall become subject to all terms and conditions herein and shall be treated as a “Existing Approval” under this Agreement. 4.5.1 Scope of Review of Subsequent Approvals. By approving the Existing Approvals, City has made a final policy decision that the Project is in the best interests of the public health, safety and general welfare. Accordingly, City shall not prevent or delay development of the Project in accordance with the Existing Approvals. The Subsequent Approvals shall be deemed to be tools to implement the Existing Approvals. The scope of the review of applications for Subsequent Approvals shall be limited to a review of substantial conformity with the Existing Approvals and Applicable Rules, and compliance with CEQA. Ordinance No. 1299 Page 13 of 31 ___________________        4.5.2 Conditions of Subsequent Approvals. In connection with any Subsequent Approvals, City shall have the right to impose reasonable conditions including, without limitation, normal and customary dedications for rights of way or easements for public access, utilities, water, sewers, and drainage necessary for the Project and in accordance with the provisions herein; provided, however, no conditions imposed on Subsequent Approvals shall require dedications or reservations for, or construction or funding of, public infrastructure or public improvements beyond those already included in the MMRP or Existing Approvals. ANNUAL REVIEW 5.1 Annual Review. The annual review required by California Government Code section 65865.1 will be conducted for the purposes and in the manner stated in those laws as further provided herein. As part of that review, City and Developer shall have a reasonable opportunity to assert actions that either Party believes have not been undertaken in accordance with this Development Agreement, to explain the basis for such assertion, and to receive from the other Party a justification for the other Party’s position with respect to such actions, and to take such actions as permitted by law. The procedure set forth in this Article shall be used by Developer and City in complying with the annual review requirement. City and Developer agree that the annual review process will review compliance by Developer and City with the obligations under this Development Agreement but will not review compliance with other Existing Approvals or other agreements between City and Developer. 5.2 Commencement of Process; Developer Compliance Letter. At least fifteen (15) days prior to the anniversary of the Effective Date each year, Developer shall submit an annual review form, using a form prepared by the Public Works Department, to the Director of the Public Works Department, demonstrating Developer’s good faith compliance with the material terms and conditions of this Development Agreement. 5.3 Development Services Director/City Engineer Review. Within thirty (30) days after the receipt of Developer’s letter, the Public Works Director shall review Developer’s submission and determine whether Developer has in fact, for the year under review, demonstrated good faith compliance with the material terms and conditions of this Agreement. If Developer has demonstrated good faith compliance, then the Public Works Director shall make such a finding and send a letter back to Developer describing the Public Works Director /City Engineer’s finding and any comments. 5.4 Noncompliance Finding. If the Public Works Director finds and determines that there is substantial evidence that Developer has not complied in good faith with any material term or condition of this Agreement, or that Developer is in material breach of this Development Agreement for the year under review, the Public Works Director shall issue and deliver to Developer a written “Notice of Default” specifying in detail the nature of the failure in performance that the Public Works Director claims constitutes material noncompliance or material breach, all facts demonstrating substantial evidence of material noncompliance, and the manner in which such noncompliance may be satisfactorily cured in accordance with this Agreement. In the event that the material noncompliance is an Event of Default pursuant to Article 6 herein, the Parties shall be Ordinance No. 1299 Page 14 of 31 ___________________        entitled to their respective rights and obligations under Article 6 herein, except that the particular entity allegedly in default shall be accorded only one 60 (sixty) day cure period. 5.5 Cure Period. If the Public Works Director finds that Developer is not in compliance, the Public Works Director shall grant a reasonable period of time of not less than thirty (30) days for Developer to cure the alleged noncompliance. The Public Works Director shall grant a cure period of at least sixty (60) days and shall extend the sixty (60) day period if Developer is proceeding in good faith to cure the noncompliance and additional time is reasonably needed. At the conclusion of the cure period, the Public Works Director shall either (i) find that Developer is in compliance; or (ii) find that Developer is not in compliance. 5.6 Referral of Noncompliance to City Council. The Public Works Director shall refer the alleged default to the City Administrator or their designee who then shall discuss the matter with the City Council. If Developer fails to cure the alleged noncompliance to the Public Works Director’s reasonable satisfaction during the prescribed cure period and any extensions thereto. The Public Works Director shall refer the alleged noncompliance to the City Administrator who shall forward to the City Council if Developer requests a hearing before the City Council. The Public Works Director shall prepare a staff report to the City Council which shall include, in addition to Developer’s letter, (i) demonstration of City’s good faith compliance with the terms and conditions of this Development Agreement; (ii) the Notice of Default; and (iii) a description of any cure undertaken by Developer during the cure period. 5.6.1 Delivery of Documents. At least five (5) days prior to any City hearing regarding Developer’s compliance with this Development Agreement, City shall deliver to Developer all staff reports and all other relevant documents pertaining to the hearing. 5.6.2 City Council Compliance Finding. If the City Council, following a noticed public hearing pursuant to Section 5.6, determines that Developer is in compliance with the material terms and conditions of this Agreement, the annual review shall be deemed concluded. City shall, at Developer’s request, issue and have recorded a Certificate of Compliance indicating Developer’s compliance with the terms of this Agreement. 5.6.3 City Council Noncompliance Finding. If the City Council, at a properly noticed public hearing pursuant to Section 5.6 finds and determines, on the basis of substantial evidence, that Developer has not complied in good faith with the material terms or conditions of this Agreement and that Developer is in material breach of this Agreement, Developer will have a reasonable time determined by the City Council to meet the reasonable terms of compliance approved by the City Council, which time shall be not less than fifteen (15) days. If Developer does not complete the terms of compliance within the time specified, the City Council shall hold a public hearing regarding termination or modification of this Agreement. Notification of intention to modify or terminate this Agreement shall be delivered to Developer by certified mail containing: (i) the time and place of the City Council hearing; (ii) a statement as to whether City proposes to terminate or modify this Agreement and the terms of any proposed modification; and (iii) any other information reasonably necessary to inform Developer of the nature of the proceedings. At the time of the hearing, Developer shall be given an opportunity to be heard. The City Council may impose conditions to the action it takes as necessary to protect the interests of City, provided that any modification or termination of this Development Agreement pursuant to this provision shall bear a Ordinance No. 1299 Page 15 of 31 ___________________        reasonable nexus to, and be proportional in severity to the magnitude of, the alleged breach, and in no event shall termination be permitted except in accordance with Article 6 herein. 5.7 Relationship to Default Provisions. The above procedures are independent of, in addition to, and do not replace, that provision of Section 6.1 of this Agreement whereby either City or Developer may, at any time, assert matters which either Party believes have not been undertaken in accordance with this Agreement by delivering a written Notice of Default and following the procedures set forth in Section 6.1. 5.8 Reimbursement of City Costs Incurred in Bringing Cure. Developer shall be obligated to reimburse to City all costs (including fully burdened staff time), expenses, damages and attorneys’ fees incurred as a result of any Developer’s default including all costs incurred in bringing about Developer’s cure of any such default. DEFAULT, REMEDIES AND TERMINATION 6.1 Event of Default. Subject to any extensions of time by mutual consent of the Parties in writing, and subject to the provisions of Section 1.3.3 hereof regarding Excused Delays and a Mortgagee’s right to cure pursuant to Section 9.3 hereof, any failure by either Party to perform any material term or provision of this Agreement (not including any failure by Developer to perform any term or provision of any other Existing Approvals) shall constitute an “Event of Default,” (i) if such defaulting Party does not cure such failure within sixty (60) days following written “Notice of Default” from the other Party, where such failure is of a nature that can be cured within such sixty (60) day period; or (ii) if such failure is not of a nature which can be cured within such sixty (60) day period, the defaulting Party does not within such sixty (60) day period commence substantial efforts to cure such failure, or thereafter does not within a reasonable time prosecute to completion with diligence and continuity the curing of such failure. Any Notice of Default given hereunder shall specify in detail the nature of the failures in performance that the noticing Party claims constitutes the Event of Default, all facts constituting substantial evidence of such failure, and the manner in which such failure may be satisfactorily cured in accordance with the terms and conditions of this Development Agreement. During the time periods herein specified for cure of a failure of performance, the Party charged therewith shall not be considered to be in default for purposes of (a) termination of this Development Agreement, (b) institution of legal proceedings with respect thereto, or (c) issuance of any approval with respect to the Project. The waiver by either Party of any default under this Development Agreement shall not operate as a waiver of any subsequent breach of the same or any other provision of this Development Agreement. 6.2 Meet and Confer. During the sixty (60) day period specified in Section 6.1 for cure of a failure of performance, the Parties shall meet and confer in a timely and responsive manner, to attempt to resolve any matters prior to litigation or other action being taken, including without limitation any action in law or equity; provided, however, nothing herein shall be construed to extend the time period for this meet and confer obligation beyond the sixty (60) day cure period Ordinance No. 1299 Page 16 of 31 ___________________        referred to in Section 6.1 (even if the sixty (60) day cure period itself is extended pursuant to Section 6.1) unless the Parties agree otherwise in writing. 6.3 Remedies and Termination. If, after notice and expiration of the cure periods and procedures set forth in Sections 6.1 and 6.2, the alleged Event of Default is not cured, the non- defaulting Party, at its option, may institute legal proceedings pursuant to Section 6.4 of this Agreement or terminate this Agreement pursuant to Section 6.5 herein. In the event that this Agreement is terminated pursuant to Section 6.5 herein and litigation is instituted that results in a final decision that such termination was improper, then this Agreement shall immediately be reinstated as though it had never been terminated. 6.4 Legal Action by Parties. 6.4.1 Remedies. Either Party may, in addition to any other rights or remedies, institute legal action to cure, correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation thereof, enforce by specific performance the obligations and rights of the Parties hereto or to obtain any remedies consistent with the purpose of this Development Agreement. All remedies shall be cumulative and not exclusive of one another, and the exercise of any one or more of these remedies shall not constitute a waiver or election with respect to any other available remedy. Without limiting the foregoing, Developer reserves the right to challenge in court any New City Laws that would conflict with Developer’s vested rights.. 6.5 Termination. 6.5.1 Automatic Termination. Except as otherwise provided herein, this Agreement shall be deemed terminated and of no further effect upon the expiration of the Term, including extension thereof, as set forth in Section 1.3 herein. 6.5.2 Survival of Obligations. Upon the termination or expiration of this Agreement as provided herein, neither Party shall have any further right or obligation with respect to the Property under this Agreement except with respect to any obligation that is specifically set forth as surviving the termination or expiration of this Agreement. The termination or expiration of this Agreement shall not affect the validity of the Existing Approvals (other than this Agreement) for the Project. 6.5.3 Termination by City. Notwithstanding any other provision of this Agreement, City shall not have the right to terminate this Agreement with respect to all or any portion of the Property before the expiration of its Term unless City complies with all termination procedures set forth in the Development Agreement Law and there is an alleged Event of Default by Developer and such Event of Default is not cured pursuant to Article 5 herein or this Article 6 and Developer has first been afforded an opportunity to be heard regarding the alleged default before the City Council and this Agreement is terminated only with respect to that portion of the Property to which the default applies. Ordinance No. 1299 Page 17 of 31 ___________________        COOPERATION AND IMPLEMENTATION 7.1 Further Actions and Instruments. Each Party to this Development Agreement shall cooperate with and provide reasonable assistance to the other Party and take all actions necessary to ensure that the Parties receive the benefits of this Development Agreement, subject to satisfaction of the conditions of this Development Agreement. Upon the request of any Party, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Development Agreement to carry out the intent and to fulfill the provisions of this Development Agreement or to evidence or consummate the transactions contemplated by this Development Agreement. 7.2 Regulation by Other Public Agencies. Other public agencies not within the control of City may possess authority to regulate aspects of the development of the Property separately from or jointly with City, and this Development Agreement does not limit the authority of such other public agencies. Nevertheless, City shall be bound by, and shall abide by, its covenants and obligations under this Development Agreement in all respects when dealing with any such agency regarding the Property. To the extent that City, the City Council, or any other board, agency, committee, department or commission of City constitutes and sits as any other board, agency, commission, committee, or department, it shall not take any action that conflicts with City’s obligations under this Agreement unless required to by any State or Federal law. 7.3 Other Governmental Permits and Approvals; Grants. Developer shall apply for the permits and approvals 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. Developer shall comply with all such permits, requirements and approvals. City shall cooperate with Developer in its endeavors to obtain (a) such permits and approvals and (b) any grants for the Project for which Developer applies. TRANSFERS AND ASSIGNMENTS 8.1 Right to Transfer. Developer shall have the right to sell, transfer, or assign the Property in whole or in part (provided that no such parcel transfer shall violate the Subdivision Map Act (Gov. Code § 66410, et seq.)) and the rights and obligations under this Agreement to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement. 8.2 Release upon Transfer. Upon the transfer of Developer’s rights and interests to the Property under this Development Agreement pursuant to Section 8.1, Developer shall automatically be released from its obligations Ordinance No. 1299 Page 18 of 31 ___________________        and liabilities under this Development Agreement with respect to that portion of the Property transferred, and any subsequent default or breach with respect to the transferred rights and/or obligations shall not constitute a default or breach with respect to the retained rights and/or obligations under this Development Agreement. 8.3 Covenants Run with the Land. All of the provisions, agreements, rights, powers, standards, terms, covenants and obligations contained in this Development Agreement shall be binding upon the Parties and their respective successors (by merger, reorganization, consolidation, or otherwise) and assigns, devisees, administrators, representatives, lessees, and all of the persons or entities acquiring the Property or any portion thereof, or any interest therein, whether by operation of law or in any manner whatsoever, and shall inure to the benefit of the Parties and their respective successors (by merger, consolidation or otherwise) and assigns. All of the provisions of this Development Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land pursuant to applicable law, including but not limited to, section 1468 of the Civil Code of the State of California. Each covenant to do, or refrain from doing, some act on the Property hereunder (i) is for the benefit of such Property and is a burden upon such Property: (ii) runs with such Property; (iii) is binding upon each Party and each successive owner during its ownership of such Property or any portion thereof; and (iv) each person or entity having any interest therein derived in any manner through any owner of such Property, or any portion thereof, and shall benefit the Property hereunder, and each other person or entity succeeding to an interest in such Property. MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE 9.1 Mortgagee Protection. This Development 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 (“Mortgage”). This Development Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording this Development Agreement, including the lien of any Mortgage. Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Development Agreement shall be binding upon and effective against and inure to the benefit of any person or entity, including any deed of trust beneficiary or mortgagee (“Mortgagee”) who acquires title to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure, or otherwise. 9.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 9.1 above, no Mortgagee shall have any obligation or duty under this Development Agreement to perform Developer’s obligations or other affirmative covenants of Developer hereunder, provided, however, that a Mortgagee shall not be entitled to devote the Property to any uses or to construct any improvements thereon other than those uses or improvements provided for or authorized by this Development Agreement, or by the Existing Approvals and Applicable Rules. Ordinance No. 1299 Page 19 of 31 ___________________        9.3 Notice of Default to Mortgagee; Right of Mortgagee to Cure. If City receives a notice from a Mortgagee requesting a copy of any Notice of Default given to Developer hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed a default, and if City makes a determination of noncompliance hereunder, City shall likewise serve notice of such noncompliance on such Mortgagee concurrently with service thereof on Developer. Each Mortgagee shall have the right (but not the obligation) during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the Event of Default claimed or the areas of noncompliance set forth in City’s notice. 9.4 No Supersedure. Nothing in this Article 9 shall be deemed to supersede or release a Mortgagee or modify a Mortgagee’s obligations under any subdivision improvement agreement or other obligation incurred with respect to the Project outside this Development Agreement, nor shall any provision of this Article 9 constitute an obligation of City to such Mortgagee, except as to the notice requirements of Section 9.3. 9.5 Technical Amendments. City agrees to reasonably consider and approve interpretations and/or technical amendments to the provisions of this Agreement that are required by lenders for the acquisition and construction of the improvements on the Property or any refinancing thereof and to otherwise cooperate in good faith to facilitate Developer’s negotiations with lenders. MISCELLANEOUS PROVISIONS 10.1 Limitation on Liability. Notwithstanding anything to the contrary contained in this Development Agreement, in no event shall any member, officer, agent or employee of City be personally liable for any breach of this Development Agreement by City or for any amount which may become due to Developer under the terms of this Development Agreement. 10.2 Notices, Demands and Communications Between the Parties. Written notices, demands, correspondence and communications between City and Developer shall be sufficiently given if (i) delivered personally (including delivery by private courier); (ii) dispatched by certified mail, postage prepaid and return receipt requested; or (iii) delivered by nationally recognized overnight courier service; (iv) by electronic facsimile transmission followed by delivery of a “hard” copy to the addresses indicated below; or (v) by electronic mail followed by delivery of a “hard” copy to the addresses indicated below. Such written notices, demands, correspondence and communications may be sent in the same manner to such persons and addresses as either Party may from time-to-time designate in writing at least fifteen (15) days prior to the name and/or address change and as provided in this Section 10.3. Ordinance No. 1299 Page 20 of 31 ___________________        City City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Administrator with copies to: City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Attn: City Attorney Developer: GPT VERNON OWNER LP 3333 Michelson Drive, Suite 725 Irvine, CA 92612 Attn: Joe Williams/Jenny Tseng, Esq. General Counsel Link Logistics Real Estate LLC 602 W Office Center Dr., Suite 200 Fort Washington, PA 19034 developmentcontracts@linklogistics.com Notices personally delivered shall be deemed to have been received upon delivery. Notices delivered by certified mail, as provided above, shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addresses designated above as the Party to whom notices are to be sent; or (ii) within five (5) days after a certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. Notices delivered by overnight courier service as provided above shall be deemed to have been received twenty- four (24) hours after the date of deposit. Notices delivered by electronic facsimile transmission or email shall be deemed received upon receipt of sender of electronic confirmation of delivery, provided that a “hard” copy is delivered as provided above. 10.3 Project Is Private Development. The Project constitutes private development, neither City nor Developer is acting as the agent of the other in any respect hereunder, and City and Developer are independent entities with respect to the terms and conditions of this Agreement. Nothing contained in this Development Agreement or in any document executed in connection with this Development Agreement shall be construed as making City and Developer joint venturers or partners. 10.4 Severability. If any terms or provision(s) of this Development Agreement or the application of any term(s)or provision(s) of this Development Agreement to a particular situation, is (are) held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of this Development Agreement or the application of this Development Agreement to other situations, shall remain in full force and effect unless amended or modified by mutual consent of the Parties. Notwithstanding the foregoing, if any material provision of this Development Agreement, or the Ordinance No. 1299 Page 21 of 31 ___________________        application of such provision to a particular situation, is held to be invalid, void or unenforceable, Developer (in its sole and absolute discretion) may terminate this Development Agreement by providing written notice of such termination to City. 10.5 Section Headings. Article and Section headings in this Development Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Development Agreement. 10.6 Construction of Agreement. This Development Agreement has been reviewed and revised by legal counsel for both Developer and City, and no presumption or rule that ambiguities shall be construed against the drafting Party shall apply to the interpretation or enforcement of this Development Agreement. 10.7 Entire Agreement. This Development Agreement, including the Recitals, and exhibits attached hereto and incorporated by reference herein, together with the Existing Approvals, constitutes the entire understanding and agreement of the Parties and supersedes all negotiations or previous agreements between the Parties with respect to all or any part of the subject matter hereof. 10.8 Estoppel Certificates. Either Party may, at any time during the Term of this Development Agreement, and from time to time, deliver written notice to the other Party requesting such Party to certify in writing that, to the knowledge of the certifying Party, (i) this Development Agreement is in full force and effect and a binding obligation of the Parties; (ii) this Development Agreement has not been amended or modified either orally or in writing, or if amended; identifying the amendments; (iii) the requesting Party is not in default in the performance of its obligations under this Development Agreement, or if in default, to describe therein the nature and amount of any such defaults; and (iv) any other information reasonably requested. The Party receiving a request hereunder shall execute and return such certificate or give a written, detailed response explaining why it will not do so within twenty (20) days following the receipt thereof. The failure of either Party to provide the requested certificate within such twenty (20) day period shall constitute a confirmation that this Agreement is in full force and effect and no modification or default exists. Either the City Administrator or their designee shall have the right to execute any certificate requested by Developer hereunder. City acknowledges that a certificate hereunder may be relied upon by transferees and Mortgagees. 10.9 No Waiver. No delay or omission by either Party in exercising any right or power accruing upon noncompliance or failure to perform by the other Party under any of the provisions of this Development Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either Party of any of the covenants or conditions to be performed by the other Party shall be in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought, and any such waiver shall not be construed as a waiver of any succeeding breach or non-performance of the same or other covenants and conditions hereof. Ordinance No. 1299 Page 22 of 31 ___________________        10.10 Time Is of the Essence. Time is of the essence for each provision of this Development Agreement for which time is an element. 10.11 Applicable Law. This Development Agreement shall be construed and enforced in accordance with the laws of the State of California. 10.12 Attorneys’ Fees. Should any legal action be brought by either Party because of a breach of this Development Agreement or to enforce any provision of this Development Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and such other costs as may be found by the court. 10.13 Third Party Beneficiaries. Except as otherwise provided herein, City and Developer hereby renounce the existence of any third party beneficiary to this Development Agreement and agree that nothing contained herein shall be construed as giving any other person or entity third party beneficiary status. 10.14 Constructive Notice and Acceptance. Every person who now or hereafter owns or acquires any right, title or interest in or to any portion of the Property is and shall be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Development Agreement is contained in the instrument by which such person acquired an interest in the Property. 10.15 Counterparts. This Development Agreement may be executed by each Party on a separate signature page, and when the executed signature pages are combined, shall constitute one single instrument. 10.16 Authority. The persons signing below represent and warrant that they have the authority to bind their respective Party and that all necessary board of directors,’ shareholders,’ partners,’ city councils or other approvals have been obtained. IN WITNESS WHEREOF, City and Developer have executed this Development Agreement as of the date first set forth above. [signatures on next page] Ordinance No. 1299 Page 23 of 31 ___________________        DEVELOPER: GPT VERNON OWNER LP, a Delaware limited partnership By: Link Logistics Real Estate Management, LLC, a Delaware limited liability company By: __________________________________ Its Authorized Agent CITY: CITY OF VERNON a California municipal corporation and California charter City By: __________________________________ Carlos R. Fandino Jr, City Administrator ATTESTATION: By: __________________________________ <RQQLH3DUNHU 'HSXW\City Clerk APPROVED AS TO FORM: By: __________________________________ Zaynah Moussa City Attorney SIGNATURES MUST BE NOTARIZED Ordinance No. 1299 Page 24 of 31 ___________________        ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of _____________________ ) On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Ordinance No. 1299 Page 25 of 31 ___________________        A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of _____________________ ) On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Ordinance No. 1299 Page 26 of 31 ___________________        EXHIBIT A-1 LEGAL DESCRIPTION OF PROPERTY Ordinance No. 1299 Page 27 of 31 ___________________        EXHIBIT A-2 DEPICTION OF PROPERTY Ordinance No. 1299 Page 28 of 31 ___________________        EXHIBIT B-1 SITE PLAN Ordinance No. 1299 Page 29 of 31 ___________________        EXHIBIT B-2 Landscape Plan Ordinance No. 1299 Page 30 of 31 ___________________        EXHIBIT B-3 Elevations and Materials Board Ordinance No. 1299 Page 31 of 31 ___________________        City Council Agenda Report Meeting Date: April 2, 2024 From: Yonnie Parker, Deputy City Clerk Department: City Clerk Submitted by: Sandra Dotson, Administrative Secretary Subject Warehouse Development Agreement for 5764 Alcoa Avenue Recommendation Conduct second reading and adopt Ordinance No. 1299 approving Warehouse Development Agreement No. WH-001 for Assessor Parcel Numbers 6310-005-003, 6310-005-004, 6310-005- 009, and 6310-005-010 between the City of Vernon and GPT Vernon Owner, LP. Background At the March 19, 2024 Regular City Council Meeting, the City Council introduced and conducted first reading of Ordinance No. 1299, which approves a Warehouse Development Agreement that allows GPT Vernon Owner, LP to remove existing warehouse buildings and associated structures totaling 145,950 square feet on a 7.12-acre (310, 147 square feet) lot, and replace them with a single 153,000 square foot warehouse building. Summary of the Ordinance was posted on the City's website on March 19, 2024, and published on March 28, 2024, pursuant to legal requirements. Fiscal Impact The fiscal impact of publishing the ordinance is estimated at $100. Sufficient funds are available in the General Fund, City Clerk Department, Advertisement/Promotion Account No. 011-010-125-525000 for the current fiscal year. Attachments 1. Ordinance No. 1299 ALIFORNIA• al NOTICE OF CITY COUNCIL PUBLIC HEARING The City Council of the City of Vernon will conduct a public hearing on March 19, 2024, at 9:00 a.m. (or as soon thereafter as the matter can be heard)which you may attend at Vernon City Hall, City Council Chamber, 4305 Santa Fe Avenue, Vernon, CA 90058 to: CONSIDER AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF VERNON AND GPT VERNON OWNER LP FOR THE CONSTRUCTION OF A WAREHOUSE AT 5764 ALCOA AVENUE All relevant documents will be available for public review on the City's website once the agenda for the meeting is posted or from the City Clerk at CityClerk@cityofvernon.orq or (323) 583-8811, ext. 546. All interested persons will be given an opportunity to comment on the above-referenced items during the public hearing. In addition, written comment or questions may be submitted prior to the hearing as set forth below. Written Testimony or questions must be received prior to 9:00 a.m. on the date of the hearing. Please send your comments or questions to: Daniel Wall, Director of Public Works 4305 Santa Fe Avenue, Vernon, CA 90058 (323) 583-8811 ext. 305 Email:dwall@cityofvernon.org If you challenge approval of the Development Agreement or any provision thereof in court, you may be limited to raising only those issues you or someone else raised at the hearing described in this notice or in written correspondence delivered to the City of Vernon at, or prior to, the meeting. In compliance with the Americans with Disabilities Act (ADA), if you need special assistance to participate in the meeting, please contact the City Clerk Department at(323)583-8811, ext. 546 at least 48 hours prior to the meeting to assure arrangements can be made. The hearing may be continued, adjourned, or cancelled and rescheduled to a stated time and place without further notice of a public hearing. Dated: March 4, 2024, 2024 Lisa Pope, City Clerk Publish: March 7, 2024, 2024 CALIFORNIA NEWSPAPER SERVICE BUREAU DAILY JOURNAL CORPORATION Mailing Address:915 E FIRST ST,LOS ANGELES,CA 90012 Telephone(800)788-7840/Fax (800)464-2839 Visit us @ www.LegalAdstore.com LISA POPE CITY OF VERNON CITY CLERK 4305 SANTA FE AVE VERNON, CA 90058 PRE# 3789338 NOTICE OF CITY COUNCIL PUBLIC HEARING The City Council of the City of Vernon will conduct a public hearing on March 19,2024,at 9:00 a.m.(or as soon thereafter as the matter can be heard)which you may attend at Vernon City Hall, City Council Chamber, 4305 Santa Fe COPY O F NOTICE Avenue,CONS Vernon,ER CA 90058 INA to: CONSIDER AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF VERNON AND GPT VERNON OWNER LP FOR THE CONSTRUCTION OF A WAREHOUSE AT 5764 ALCOA AVENUE All relevant documents will be available for public review on the City's website once the agenda for Notice Type: HRG NOTICE OF HEARING the meeting is posted or from the City Clerk at CitvClerk(a)citvofvernon.orq or (323) 583-8811, ext. 546.All interested persons will be given an Ad Description opportunity to comment on the above-referenced Notice of Public HearingApproval of Development Agreements items duringm the public hearing.beIn addition, - PP P 9 written comment or questions may submitted prior to the hearing as set forth below.Written Testimony or questions must be received prior to 9:00 a.m.on the date of the hearing. To the right is a copy of the notice you sent to us for publication in the Please send your comments or questions to: HUNTINGTON PARK BULLETIN. Please read this notice carefullyand call us Daniel Wall,Director of Public Works 4305 Santa Fe Avenue,Vernon,CA 90058 with any corrections.The Proof of Publication will be filed with the County (323)583-8811 ext.305 Email:dwallci Clerk,if required,and mailed to you after the last date below. Publication If you challenge appprovalo of the Development date(s)for this notice is(are): Agreement or any provision thereof in court,you may be limited to raising only those issues you or 03/07/2024 someone else raised at the hearing described in this notice or in written correspondence delivered to the City of Vernon at,or prior to,the meeting. In compliance with the Americans with Disabilities Act (ADA), if you need special assistance to participate in the meeting,please contact the City Clerk Department at(323)583-8811,ext.546 at least 48 hours prior to the meeting to assure An invoice will be sent after the last date of publication. Ifyou prepaid this arrangements can be made. p P The hearing may be continued, adjourned, or order in full,you will not receive an invoice. cancelled and rescheduled to a stated time and place without further notice of a public hearing. Dated:March 4,2024,2024 Lisa Pope,City Clerk Publish:March 7,2024,2024 3/7/24 PRE-3789338# HUNTINGTON PARK BULLETIN III UII II li1111111 Rh * A 0 0 0 0 0 6 7 0 5 2 6 3 * CALIFORNIA NEWSPAPER SERVICE BUREAU PRE# D A I L Y J O U R N A L C O R P O R A T I O N To the right is a copy of the notice you sent to us for publication in the HUNTINGTON PARK BULLETIN. Please read this notice carefully and call us with any corrections. The Proof of Publication will be filed with the County Clerk, if required, and mailed to you after the last date below. Publication date(s) for this notice is (are): Mailing Address : 915 E FIRST ST, LOS ANGELES, CA 90012 Telephone (800) 788-7840 / Fax (800) 464-2839 Visit us @ www.LegalAdstore.com Yonnie Parker CITY OF VERNON CITY CLERK 4305 SANTA FE AVE VERNON, CA 90058 ORD ORDINANCE PUBLICATION Ordinance 1299 Adoption Summary 04/11/2024 Notice Type: Ad Description COPY OF NOTICE 3800436 !A000006730388! An invoice will be sent after the last date of publication. If you prepaid this order in full, you will not receive an invoice. ADOPTION OF ORDINANCE No.1299 Ordinance No.1299 approves Warehouse Development Agreement No.WH-001 for Assessor Parcel Number 6310-005-003,6310- 005-004,6310-005-009,and 6310-005-010 between the City of Vernon and GPT Vernon Owner,LP. Ordinance No.1299 was introduced by the Vernon City Council at the regular meeting on March 19,2024,and adopted on April 2,2024,by the following vote: AYES:Rivera,Ybarra,Larios NOES:None ABSENT:Lopez,Merlo ABSTAIN:None The full text of Ordinance No.1299 is on file in the City Clerk Department and accessible on the City's website at www.cityofvernon.org. Posted:Wednesday,April 3,2024 Publish:Thursday,April 11,2024 4/11/24 PRE-3800436# HUNTINGTON PARK BULLETIN CALIFORNIA NEWSPAPER SERVICE BUREAU PRE# D A I L Y J O U R N A L C O R P O R A T I O N To the right is a copy of the notice you sent to us for publication in the HUNTINGTON PARK BULLETIN. Please read this notice carefully and call us with any corrections. The Proof of Publication will be filed with the County Clerk, if required, and mailed to you after the last date below. Publication date(s) for this notice is (are): Mailing Address : 915 E FIRST ST, LOS ANGELES, CA 90012 Telephone (800) 788-7840 / Fax (800) 464-2839 Visit us @ www.LegalAdstore.com Yonnie Parker CITY OF VERNON CITY CLERK 4305 SANTA FE AVE VERNON, CA 90058 ORD ORDINANCE PUBLICATION Ordinance 1299 - Introduction Summary 03/28/2024 Notice Type: Ad Description COPY OF NOTICE 3795648 !A000006717780! An invoice will be sent after the last date of publication. If you prepaid this order in full, you will not receive an invoice. INTRODUCTION OF ORDINANCE No.1299 Ordinance No.1299 approves Warehouse Development Agreement No.WH-001 for Assessor Parcel Number 6310-005-003,6310- 005-004,6310-005-009,and 6310-005-010 between the City of Vernon and GPT Vernon Owner,LP. Ordinance No.1299 was introduced by the Vernon City Council at the regular meeting on March 19,2024.Second reading and adoption of the ordinance is scheduled for the regular City Council meeting on April 2,2024,at City Hall, 4305 Santa Fe Avenue,Vernon,California. The full text of Ordinance No.1299 is on file in the City Clerk Department and accessible on the City's website at www.cityofvernon.org. Posted:Wednesday,March 19,2024 Publish:Thursday,March 28,2024 3/28/24 PRE-3795648# HUNTINGTON PARK BULLETIN