HomeMy WebLinkAbout1996-01-16; City Council; NS-346; Carlsbad Ranch/Legoland Specific Plan Amendment...b
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1 ll ORDINANCE NO. NS-346
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AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA APPROVING A
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF
CARLSBAD AND LEGO PARK PLANNING INC. (LPPI)
TO PROVIDE FOR THE CONSTRUCTION OF A
LEGOLAND PARK IN CARLSBAD
CASE NAME: CARLSBAD RANCH/LEGOLAND
CASE NO: DA 94-01
SPECIFIC PLAN AMENDMENT
a WHEREAS, the Planning Commission did on December 6,1995, hol
9 noticed public hearing as prescribed by law to consider a Development Agreement,
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l1 !! WHEREAS, the City Council of the City of Carlsbad, on the 9th
l2 11 January , 1996, held a duly advertised public hearing to consic
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Municipal Code Section 21.70.090 state that approval of a development agreen: 17
WHEREAS, California Government Code Section 65867.5 and (
1,8 legislative act which must be approved by ordinance; and
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development Agreement, and at that time received the recommendations, ob,
protests, comments of all persons interested in the development agreement; and
WHEREAS, this ordinance is adopted pursuant to Article 2.5 of the C
ll Government Code and Chapter 21.70 of the Carlsbad Municipal Code. 21
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SECTION I: That the Development Agreement between the 24
follows:
Carlsbad and LEGO Park Planning Inc., attached hereto marked Exhibit IT
26 incorporated by this reference ("LEGO Development Agreement" or "Devc
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Agreement") is approved. The Mayor is authorized and directed to execute said ai 28
on behalf of the City.
NOW, THEREFORE, City Council of the City of Carlsbad does c
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SECTION 11: That the findings of the Planning Commission as :
in Planning Commission Resolution No. 3854 constitute the Findings of the City (
SECTION 111: Upon execution by all parties, the City Clerk is au
and directed to record the Development Agreement in the Office of the San Diega
Recorder pursuant to Section 21.70.130 of the Carlsbad Municipal code.
EFFECTIVE DATE: This ordinance shall be effective thirty days
adoption, and the City Clerk shall certify to the adoption of this ordinance and cal
be published at least once in a newspaper of general circulation in the City of C
within fifteen days after its adoption.
INTRODUCED AND FIRST READ at a regular meeting of the C
City Council on the 9th day of January , 1996, and thereafter
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PASSED AND ADOPTED at a regular meeting of the City Councj
City of Carlsbad on the 16th day of January , 1996, by the following vote, to
AYES: Council Members Lewis, Nygaard, Kulchin, Finnila and Hall
NOES: None
ABSENT: None
ABSTAIN: None
APPROVED AS TO FORM AND LEGALITY
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1 2 RONALD R. BALL, City Attorney /-IF961
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ATTEST:
[b.;A CU-"
ALETHA L. RAUTENKRANZ, City Cldrk
(SEW
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d 0 0 EXHIBIT
k RECORDING REQUESTED BY
&ND WHEN RECORDED MAIL TO:
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, California 92008-1989
FREE RECORDIN( Attention: City Attorney GOVERNMENT COD
SECTION 610
DEVELOPMENT AGREEMENT
Relating to the development of LEGOLAND CARLSBAD in the Carlsbad Ranch Amended
Specific Plan Area
by and between
CITY OF CARLSBAD
and
LEG0 PARK PLANNING, INC.
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. DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF CARLSBAD
AND
&EGO PARK PLANNING, INC,
Paqc
1 RECITALS OF PREMISES, PURPOSE AND INTENT ......... 3
1.1 Code Authorization ................. 1
1.2 Reasons for Agreement ................. 1
1.3 Interest of LPPI .................. 2
1.4 Theproject. .................... :
1.5 Project Approvals .................. :
1.6 Project is Private Undertaking ........... :
2 DEFINITIONS ....................... l
2.1 Applicable Rules .................. 4
2.2 city ........................ 4
2.3 Coastal Commission Approval ............. 4
2.4 Code ........................ L
2.5 Commencement of Construction ............ L
2.6 CRC ......................... 4
2.7 Development Agreement Act .............. 4
2.8 Development Agreement Ordinance ........... 4
2.9 Development Impact Fees ............... 4
2.10 Effective Date ................... E
2.11 General Plan .................... E
2.12 Hazardous Substances ................ 5
2.13 LPPI ........................ E
2.14 LEGOLAND CARLSBAD .................. E
2.15 Mortgagee ...................... E
2.16 Opening Date .................... E
2.17 Parcel 18 ...................... E
2.18Project. ...................... E
2.19 Project Approvals .................. E
2.20 Specific Plan .................... t
2.21 Specific Plan Amendment ............... C
2.22 Term ........................ E
3 DEVELOPMENT OF PARCEL 18 ................. E
3.1 Land Uses, Approvals and Covenants ......... t
3.1.1 Land Uses, Densities and Intensities ... t
3.1.1.1 Right to Develop Parcel 18 ...... t
3.1.1.2 Certain Changes Prohibited Without
Consent of LPPI ........... t
3.1.1.3 Rights are Vested .......... :
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3.1.1.4 City's Reservation of Right
to Make Certain Changes ....... :
3.1.1.5 Preemption .............. :
3.1.1.6 Reservation of Right
to Apply Certain Development Moratoria and Utility Service
Limitations ...........
3.1.1.7 Other Governmental Approvals ...
Site Development Plan Review .....
3.1.2.2 Responsibility of LPPI ......
3.1.2 Subsequent Discretionary Approvals:
3.1.2.1 Site Development Plan Approval
Required .............
3.1.2.3 Responsibility for Paying Fees . .
3.1.2.4 Approval of Site Development Plans
3.1.2.5 Standard of Review ........
3.1.2.6 Preemption ............
3.1.2.7 Reservation of Right
to Impose Certain Conditions ...
3.1.2.8 Effect of Site Development Plan
Approval for Parcel 18 ......
3.1.2.9 Construction to be Consistent
with Approved Site Development
Plans ...............
Governmental Approvals ......
3.1.2.12 Growth Management ........
Construction .............
3.1.3.1 Hazardous Substances .......
3.1.3.2 Williamson Act Contract Cancellation ...........
3.1.4 LEGOLAND CARLSBAD: Parcel 18 .....
3.1.4.1 Right to develop LEGOLAND CARLSBAD
3.1.4.2 Intentionally Omitted ......
3.1.4.3 Intentionally Omitted ......
3.1.4.4 Modifications ..........
3.1.4.5 City-Provided Utilities:
Reservation of Sufficient Capacity
3.1.4.6 City-Provided Utilities:
Nondiscriminatory Rates and
Provision of Service .......
3.1.4.7 Operations of LEGOLAND ......
3.1.4.8 Quality of Life Fee .......
3.1.4.9 Clearance of Parcel 18
3.1.2.10 Revisions Required by Other
3.1.2.11 Revisions Requested by LPPI ...
3.1.3 General Conditions Precedent to
if LEGOLAND CARLSBAD is not
Completed or Ceases to Operate . .
3.1.4.10 Donation by LPPI .........
3.1.4.11 Signage .............
3.1.4.12 LEG0 Drive ............
3.1.5 Assignment by LPPI ..........
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w 3.1.6 Intentionally Omitted .......... 2'
3.2 Public Improvements and Utilities .......... 2
3.2.1 CFD # 1 Taxes .............. 28
3.2.2 City's Commitment to Assist in Financing
1-5/Cannon Road Interchange ....... 2
3.2.2.1 Method of Financing ........ 2
3.2.2.2 City's Monetary Commitment ..... 2
3.2.2.3 Agreement with Caltrans .... 2 . 2
3.2.2.4 Maintenance of I-5/Cannon Road
Interchange Landscaping ...... 2
3.2.3 EIR Mitigation Measures ......... 2
3.2.4 Dedications ............... 2.
3.2.5 Improvement Security/Insurance ..... 2:
3.2.6 Further Land Use Actions ........ 2:
3.2.7 Financing of Public Improvements .... 2:
3.3 Development Impact Fees .............. 2 .
3.3.1 Applicable Fees and Assessments ..... 2'
3.3.2 City Reserves Right to Increase Fees . . 2
3.3.3 Fee Credits ............... 2 .
3.5 Construction Reports and Scheduling ........ 2
3.6 Insurance ..................... 2
3.6.1 Maintenance of Insurance ........ 2
3.6.2 Workers' Compensation Insurance ..... 2
3.6.3 Liability Insurance ........... 2
3.6.4 Other Insurance Provisions ....... 2
4 GENERAL PROVISIONS ................... 2
3.4 Mortgagee Protection ............... 2 .
4.1 Approval Procedure; Effective Date; Recordation . . 2l
4.2 Term ....................... 22
4.2.1 Prior to Opening Date .......... 25
4.2.2 Following Opening Date ......... 25
4.2.3 Extensions of Time to Perform ...... 2:
4.3 Cooperation and Implementation .......... 3(
4.4 Enforceability .................. 3:
4.4.1 Default ................. 3:
4.4.2 Procedure Regarding Defaults ...... 3:
4.4.3 Annual Review .............. 3:
4.4.3.1 Responsibilities of the Parties . . 3:
4.4.3.2 Opportunity to be Heard ...... 3:
4.4.3.3 Information to be Provided LPPI . . 3:
4.4.5 Remedies ................ 3'
4.5 Notices ...................... 3'
4.6 Termination .................... 3t
4.7 Effectiveness Subject to Coastal Commission Approval ..................... 35
4.8 No Third Party Beneficiaries ........... 4C
4.9 Time of Essence .................. 4C
4.10 Modification. Amendment or Extension ....... 4C
4.11 Operating Memoranda ................ 4C
4.12 Conflicts of Law ................. 41
4.4.4 Institution of Legal Action ....... 34
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4.27
4.28
4.29
4.30
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4.12.1 Conflict with State or
Federal Laws .............. 4
4.12.2 cooperation in Securinq Permits b a e . . 4
Indemnity ..................... 4:
Waiver ...................... 4;
Intentionally Omitted ............... 4;
Successors and Assigns .............. 4;
Governing State Law ................ 4;
Statement of Compliance .............. 4;
Covenant of Good Faith and Fair Dealing ...... 4:
Covenant of Cooperation .............. 4: Further Actions and Instruments .......... 43
Section Headings ................. 42
Enforced Delay (Force Majeure) .......... 44
Emergency Circumstances .............. 44
Bankruptcy .................... 45
Severability ................... 4E
Interpretation .................. 4:
Counterparts ................... 4E
Entire Agreement ................. 4E
Constructive Notice and Acceptance ........ 4;
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SCHEDULE OF EXHIBITS
EXHIBIT A Legal Description
EXHIBIT B Location Map
EXHIBIT C Description of Public Improvements
EXHIBIT D Mitigation Measures
EXHIBIT E Description of Minimum Components of LEGOLANC
CARLSBAD
EXHIBIT F Description of Dedications
EXHIBIT G Form of LEG0 Corporate Guaranty
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\ DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF CARLSBAD
AND
LEGO PARK PLANNING, INC.
THIS AGREEMENT is entered into by and between the CITY C
CARLSBAD, a municipal corporation, and LEGO PARK PLANNING, INC.,
California corporation (IILPPI~I).
1. RECITALS OF PREMISES, PURPOSE AND INTENT
1.1 Code Authorization
To strengthen the public planning process, encourage privat
participation in comprehensive planning and reduce the economj
risk of development, the Legislature of the State of Californj adopted the Development Agreement Act which authorizes any city t
enter into binding development agreements establishing certaj
development rights in real property with persons having legal c
equitable interests in such property. Section 65864 of tk
Development Agreement Act expressly provides, in part, as follows
The Legislature finds and declares that:
(a) The lack of certainty in. the approval of developmer
projects can result in a waste of resources, escalate the cos
of housing and other development to the consumer ar
discourage investment in and a commitment to comprehensil
planning which would make maximum efficient utilization c
resources at the least economic cost to the public.
(b) Assurance to the applicant for a development project th;
upon approval of the project, the applicant may proceed wit
the project in accordance with existing policies, rules ar
regulations, and subject to conditions of approval wil
strengthen the public planning process, encourage privat participation in comprehensive planning and reduce tk economic cost of development.
1.2 Reasons for Aqreement
1.2.1 The parties hereto have. determined that ti
Project (as defined below) is a ,development for which a developmer
agreement is appropriate. Development of the Project in accordanc
with a development agreement will provide for the orderj
development of Parcel 18 (defined below) in accordance with tk
objectives set forth in the General Plan and the Specific Plar
Moreover, a development agreement for the Project will eliminat
uncertainty in planning for and securing orderly development of tt
Project, ensure attainment of the maximum efficient utilization c
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- resources within the City at the least economic cost to it
I citizens, and achieve the provision of public services, publi
the Development Agreement Act was enacted, all in the promotion c
uses, urban infrastructure and other goals and purposes for whic
the health, safety and general welfare of the City of Carlsbad ar
its residents. In exchange for these and other benefits to ti-
City, LPPI and its successors and assigns will receive th assurance that they may develop and use the Project during the ter of this Agreement, subject to the terms and conditions herei
contained.
1.2.2 This Agreement does not (1) grant density o
intensity in excess of that otherj;ise established in the Projec
Approvals, (2) supersede, nullify or amend any condition imposed i
the Project Approvals, (3) guarantee to LPPI or any other party an
profits from the Project, or (4) amend the General Plan.
1.2.3 City, a5 a result of the development of Parce
18 in accordance with the Specific Plan and this Agreernent, wii
receive substantial benefits. Such benefits will include, amon others, the following: the development and operation of LZGOLAN
CARLSBAD by LPPI; the Quality of Life Fee, as described in Sectio
3.1.4.8; installation and consrruction of infrastructur
improvements in advance of the time such improvements woul
-otherwise be installed or constructed; additional employmen
opportunities; increased property rax and sales tax.
1.3 Interest of LPPI
LPPI represents that as of the date of execution cf thi Agreement, LPPI has an equitable interest in Parcel 18, consistin1 of a valid and binding option to acquire the fee title to Parcel 1
from its current owner, and subjecc to the satisfaction of a1
applicable conditions precedent, intends to exercise its option an
acquire fee title prior to the end of 1997; and that there are n
terms or conditions precedent to the exercise of such option whic
are inconsistent with this Agreement. Concurrenzly Kith th execution of this Agreement, LPPI shall deliver to the City a tit1 report demonstrating to the satisfaction of the City that LPFI I* option is of record, and showing 07.1~ chose encumbrances xk.ich wil be removed prior to or concurrently xith the acquisixion of riel( by LPPI, or which the City reasonakly approves.
LPPI represents as follows: LPlI nas beer. established by LEG1
A/S, a Danish corporation, for the purpose cf developing LEGOLAN:
Carlsbad. LPPI is wholly owned by LEG3 A/S. LPPI's activities arl
managed, directed, controlled and ZGthorized by LEG3 P-/S. LEG0 A/
has provided, and will cDntir,ue tz pro\.i.de cr cause i:s successa
Guarantor to provide, zhe fundin5 necessary for L?PI to perform it
obligations under this Agree3ent.
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1.4 The Proiect
The Project consists of the development of Parcel 18 withi
the limitations of and as described in the Specific Plan and thi
Agreement.
1.5 Proiect Approvals
1.5.1 By Council Resolution No. I th
City Council certified, after making appropriate findings, th Environmental Impact Report for the Project dated
1995, under the provisions of the California Environmental Qualit Act (California Public Resources Code Section 21000, & sea.] (thl ItEIR") .
1.5.2 City has undertaken the necessary proceedings has found and determined that this Agreement is consistent with thl
General Plan and the Specific Plan and has adopted Ordinance No
approving this Agreement which ordinance becam'
effective on , 1996 (the "Approval Ordinance"). I
the event of any conflict between the provisions of the Specifit
Plan and the provisions of this Agreement, the provisions of thi::
Agreement shall prevail.
1.6 Proiect is Private Undertakinq
1.6.1 It is specifically understood and agreed to b!
and between the parties hereto that: (1) the subject development is a private development; (2) except for the obligations of thc City described herein, the City has no interest or responsibilitie$ for or duty to third parties concerning any public improvemenl
until such time and only until such time that the City accepts the
same pursuant to law and by resolution of the City Council; (3) LPPI shall have full power over and exclusive control of the real
property herein described; and (4) the contractual relationshir
between the City and LPPI is such that LPPI is not an agent of the
City.
1.6.2 Except as provided in this Agreement, the Citi
neither undertakes nor assumes nor will have any responsibility 01:
duty to LPPI or to any third party, as the result of this
Agreement, to review, inspect, supervise, pass judgment upon or
inform any party of any matter in connection with the development, rehabilitation or construction of the Project, whether regarding the quality, adequacy or suitability of the plans, any labor, service, equipment or material furnished to Parcel 18, any person
furnishing the same, or otherwise. LPPI and all third parties
shall rely upon its or their own judgment regarding such matters,
and any review, inspection, supervision, exercise of judgment or
information supplied to LPPI or to any third party by the City in
connection with such matter is for the public purpose of
implementing this Agreement, and neither LPPI (except for the
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- purposes set forth in this Agreement) nor any third party i:
entitled to rely thereon. Unless specifically provided for in thi,
Agreement, the City shall not be responsible for .any of the work o
construction, rehabilitation, improvement or development on Parce
18 or in connection with the Project. Nothing contained in thi
Agreement shall be deemed to waive or. modify any otherwis,.
applicable obligations the City, acting in its governmenta:
capacity and not as a party to this Agreement, may have to LPPI 01
any other party, under and in accordance with all applicable laws.
2. DEFINITIONS
For purposes of this Agreement, except as otherwise express11 provided or unless the context otherwise requires:
2.1 I'Applicable Rules" means the ordinances, resolutions,
rules, regulations, requirements and official policies of City ir.
force as of the "Effective Date" (as hereinafter defined), governing Development Agreements, permitted uses of Parcel 18, density and building intensity, growth control, subdivision,
zoning, grading, landscaping, signage and design, improvement and
construction standards and specifications applicable to development
of the Project,. and shall also include the Project Approvals.
2.2 llCityll means the City of Carlsbad, California.
2.3 I1Coastal Commission Approval" shall mean certification of
the local coastal program or approval of this Agreement by the
California Coastal Commission, as required by California Government
Code Section 65869.
2.4 t1Code81 means the City of Carlsbad Municipal Code.
2.5 llCommencement of Construction1+ shall mean the start of
construction of LEGOLAND CARLSBAD on Parcel 18, including grading
in advance of actual construction or installation of improvements
pursuant to a grading permit required to be obtained by LPPI for
Parcel 18.
2.6 IICRC" shall mean the Carlsbad Ranch Company or other
master developer of the Carlsbad Ranch Specific Plan (not a party
to this Agreement).
2.7 ltDevelopment Agreement Actt1 means Sections 65864 , et seq., of the California Government Code.
2.8 llDevelopment Agreement Ordinancell means City Ordinance
No. NS-302, adopted by the Carlsbad City Council February 14, 1995.
2.9 l'Development Impact Fees" shall mean and include all fees
charged by the City in connection with the application, processing
and approval of a Site Development Plan or issuance of permits for
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- development of any portion of Parcel 18, iqcludinq, withoL limitation: application fees; permit processing fees; inspectic
fees; utility capacity fees; service or connection fees
development impact or major facilities fees; park fees; floc control fees; agricultural conversion fees; Williamson Act Contrac cancellation fees; environmental impact mitigation fees; affordabl housing fees; and any similar governmental fees, charges an exactions required for the development of the Project.
2.10 "Effective Date" means the date described in Sectio
4.l(d) of this Agreement.
2.11 "General Plant1 means the General Plan of City.
2.12 I1Hazardous Substances" as used in this Agreement mean!
those substances listed in Division 4, Chapter 30, Article 9 0.
Title 22, California Administrative Code, or those which meet tht
toxicity, reactivity, corrosivity or flammability criteria 0:
Article 11 of the above Code, or any other contaminants, pollu-
tants, toxic substances or related materials which pose a hazard tc
health or the environment.
2.13 "LPPI" means LEG0 Park Planning, Inc. , and its successors
and assigns as to Parcel 18 approved by City in accordance witk Section 3.1.5 hereof.
2.14 "LEGOLAND CARLSBAD" means the family theme park to be
constructed and operated by LPPI on Parcel 18, in accordance with
the Project Approvals.
2.15 llMortgageell means a mortgagee of a mortgage and a
beneficiary under a deed of trust.
2.16 "Opening Date" shall mean the date when each of the
following shall have occurred: completion of construction of
LEGOLAND CARLSBAD, to the extent required in Exhibit IcE"; issuance
of all required City inspections or certificates required in order
to admit members of the public to LEGOLAND CARLSBAD; and the
opening of LEGOLAND CARLSBAD to paying members of the public.
2.17 "Parcel 18" means the parcel designated by the number 18, as shown in the Map attached hereto as Exhibit llBlr, legally
described as set forth in Exhibit I1At1 attached to this Agreement.
2.18 'lProjectll means the proposed development of Parcel 18
pursuant to this Agreement.
2.19 tlProject Approvals" means the Approval Ordinance
approving the following: the Specific Plan Amendment and associated General Plan amendment; Local Coastal Plan Amendment (to the extent the City is authorized to approve the same) ; Zone Change; Local Facilities Management Plan Amendment for Zones 5 and 13;
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- Cancellation Of a Land Conservation Contract on portions of Parct
18 and Amendment to the Preserve 'Boundaries; Master Tentative May
Non-Residential Planned Unit Development; Hillside Developmer
Permit; Development Agreement; and also including action by tk
City Council approving the Environmental Impact Report for tk
Project and making findings in connection therewith; amendments t
any of the foregoing approved by the City which are in complianc with this Agreement; and all conditions of approval adopted by tl- City Council in connection with any of the foregoing.
2.20 "Specific Plan" means the Carlsbad Ranch Specific Plan as amended by the Specific Plan Amendment.
2 -21 "Specific Plan Amendment" means the amendment to th
Specific Plan approved by City in conjunction with this Agreement
to allow for the development of the Project.
2.22 "Term" means the term of this Agreement, as provided i
Section 4.2 of this Agreement.
3. DEVELOPMENT OF PARCEL 18
3.1 Land Use Approvals and Covenants
3.1.1 Land Uses, Densities and Intensities
3.1.1.1 Riqht to Develog Parcel 18. City agree:
that during the Term of this Agreement, LPPI and its successors an(
assigns approved by City in accordance with Section 3.1.5 hereof
shall have the right to develop and use Parcel 18 in accordancl
with the land uses, densities and intensities, the zoning, and thc
development standards, conditions and improvement requirement5
specified in the Specific Plan, the other Project Approvals and thc
Applicable Rules (collectively, "Vested Rules") , subject to Sit€
Development Plan review in accordance with Section 3.1.2 hereof.
The Vested Rules shall include the standards and requirements fol
public facilities, parking, open space, setbacks, landscaping anc
signage set forth in the Specific Plan.
3.1.1.2 CertainChanqesProhibitedWithout Consent
of LPPI. Except as otherwise provided in this Agreement, during the Term of this Agreement, the City shall not, as to Parcel 18, without the prior written consent of LPPI: (a) change the Vested Rules, so as to prevent or materially, adversely affect development, construction or operation of Parcel 18 in accordance with the Vested Rules; or (b) apply to Parcel 18 any new or amendec ordinance, resolution, rule, regulation, requirement or official policy that is inconsistent with the Vested Rules, so as to prevent or materially, adversely affect development, construction or
operation of Parcel 18 in accordance with the Vested Rules; or (c) apply to Parcel 18 any new or amended ordinance, resolution, rule, regulation, requirement or official policy that requires additional
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- discretionary review or approval; or (d) apply to Parcel 18 any ne or amended ordinance, resolution, rule, regulation, requirement c
official policy that materially, adversely affects the timing c
phasing of construction or development, or which limits tk
availability of utilities or other infrastructure for Parcel 18.
3.1.1.3 Riqhts are Vested. Unless amended o terminated in the manner specified in this Agreement (and subjec to the provisions of this Agreement), LPPI shall have the right and benefits afforded by this Agreement and this Agreement shall Is enforceable by LPPI and the City notwithstanding any growth contro measure or any development moratorium adopted after the Effectiv Date, or any change in the applicable general or specific plans zoning, subdivision or building regulations adopted by the Cit
which alter or amend the Vested Rules or the adoption of any new o
amended ordinance, resolution, rule, regulation, requirement o official policy that is inconsistent with the Vested Rules so as t
prevent or materially adversely affect development, construction o
operation in accordance with the Vested Rules. This Section shal
be construed to prohibit the City from applying to Parcel 18 an development moratorium that is adopted specifically to prohibit th construction of the Project, or as an interim measure pendin
contemplated general plan, specific plan or zoning changes, or a.
a general growth control management measure without other bona fidt
reasons relating to unforeseeable emergency situations (a!
described in Section 3.1.1.6, below).
3.1.1.4 City's Reservation of Riqht to Makt
Certain Chanses. Notwithstanding any provision to the contrar]
contained herein, the City expressly reserves the right to modif]
zoning and design and development standards, provided sucl
modifications do not prevent or materially, adversely affecl development, construction or operation of Parcel 18 in accordancc with the Vested Rules, and provided further that such modifications are not inconsistent with the Specific Plan.
3.1.1.5 Preemption. Notwithstandinqanyprovisior
to the contrary contained herein, the City expressly reserves the
right to modify any of the Specific Plan, the Applicable Rules anc Project Approvals to the extent necessary to comply with applicable
federal or state laws, codes or regulations which preempt local
jurisdiction (including, by way of example, and without limiting
the generality of the foregoing, the California Environmental
Quality Act, building codes and safety regulations).
3.1.1.6 Reservation of Riqht to Apply Certain
DeveloDment Moratoria and Utility Service Limitations.
Notwithstanding any provision to the contrary contained herein, the
City expressly reserves the right to apply to Parcel 18 any
development moratorium, limitation on the delivery of city-provided
utility services, or other generally applicable emergency rule,
regulation, law or ordinance: (a) which is based on genuine health,
cbad\lego\da.6 -7-
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- safety and general welfare concerns (other than qeneral qrow'
lhanagement issues) ; (b) which arises out of a documented emergenc situation, as declared by the President of the United State:
Governor of California, or the Mayor or City Council of the City ( Carlsbad; and (c) based upon its terms or its effect as appliec
does not apply exclusively or primarily to Parcel 18.
3.1.1.7 Other Governmental ApDrovals. The partit
do not contemplate that development of the Project pursuant to tl-
Specific Plan and this Agreement shall be subject to the approvz of any other governmental agencies, except for Coastal Commissic Approval, and approval of the Caltrans Share of the I-5/Cannon Roz
Costs. Provided, however, that to the extent the City assume
responsibility.for processing the Coastal Development Permit, ar
subject to the city's obligations under the State Coastal Act arl
regulations promulgated pursuant thereto, the City's processing c
such Permit shall be subject to the Applicable Rules, the Projec
Approvals and this Agreement.
3.1.2 Subsequent Discretionary Approvals: Sit
Development Plan Review
3.1.2.1 Site Development Plan Approval Required
LPPI shall be required to obtain the approval by the City of a Sit Development Plan for the development of Parcel 18 and the issuanc
of all permits required therefor. The parties acknowledge an
agree that the approval of a Site Development Plan and issuance o
permits shall be subject to the Applicable Rules, the Projec
Approvals, this Agreement and any applicable laws in effect at tht time that are not expressly superseded by this Agreement.
3.1.2.2 Responsibility of LPPI. The obtaining 0:
Site Development Plan approval and all necessary permits for tht
development of Parcel 18, and complying with the condition: thereof, shall be the sole responsibility of LPPI or its successor:
and assigns approved by the City in accordance with this Agreement.
3.1.2.3 Responsibility for Pavinq Fees. LPP 1 shall be responsible for paying when due all Development Impact
Fees in connection with the approval of a Site Development Plan anc
issuance of permits for Parcel 18. LPPI represents that it ha.s 2
separate arrangement with CRC for the payment of Development Impact
Fees in connection with the approval of a Site Development Plan and
issuance of permits for LEGOLAND CARLSBAD. Consequently, the City
agrees that in the event of failure or delay by CRC to pay when due
a Development Impact Fee with respect to LEGOLAND CARLSBAD, LPPI
. shall have the right to apply to the City to extend the time required for the Opening Date to occur, and the City shall not unreasonably withhold, delay or condition approving an extension of the time required for the Opening Date to occur, to the extent reasonably required as a result of the delay; but the City shall not be obligated to issue any permit for the development of Parcel
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18, and LPPI shall not be permitted to commence construction c
LEGOLAND CARLSBAD, unless and until all applicable Developmen
Impact Fees are paid to the City to the extent such fees are du and payable prior to the time such construction is to commence, an all other applicable requirements are satisfied.
3.1.2.4 Approval of Site Development Plans. Th
City shall promptly review and approve, approve with conditions, o
disapprove a proposed Site Development Plan submitted pursuant tl
this Agreement. The City shall not unreasonably disapprove
condition or delay approval of a proposed Site Development Plan
and once a matter is approved, it shall not subsequently bl disapproved by the City. The process for approving a Sit1
Development Plan shall be as set forth in the Applicable Rules, a:
modified or supplemented by the Specific Plan. During tht
preparation of all drawings and plans, the City and LPPI shall holc
regular progress meetings to coordinate the preparation of,
submission to, and review of Site Development Plans and relatec
documents by the City. The City and LPPI shall communicate anc
consult informally as frequently as is necessary to insure that thc
formal submittal of any documents to the City can receive prompt
and speedy consideration.
3.1.2.5 Standard of Review. The City shall have
the right to disapprove or condition approval of a proposed Site
Development Plan in accordance with planning and design standards
and criteria generally applied by the City in reviewing Site
Development Plans in the City. Provided, however, that in its
review and approval of Site Development Plans submitted pursuant to this Agreement, the City shall be bound by, and shall not
disapprove or condition a Site Development Plan in a manner that is
not consistent with the uses permitted in the Specific Plan, the
Applicable Rules, the Project Approvals and this Agreement.
Provided further, the City shall be bound by, and shall not
disapprove or condition a Site Development Plan in a manner that is
not consistent with, the "Development Standards and Design
Guidelines" for Parcel 18 set forth in the Specific Plan.
3.1.2.6 Preemption. Notwithstandingany provision
to the contrary contained herein, Site Development Plan review and
issuance of permits shall be subject to applicable federal or state
laws, codes or regulations which preempt local jurisdiction
(including by way of example, and without limiting the generality
of the foregoing, the California Environmental Quality Act, building codes, safety regulations), and to development moratoria
in accordance w$th Section 3.1.1.6 hereof.
3.1.2.7 Reservation of Riqht to Impose Certain Conditions. In connection with the review of a Site Development
Plan, the City shall have the right: (a) to impose reasonable conditions on development that are not inconsistent with the
Specific Plan, the Applicable Rules and the Project Approvals, and
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provided such conditions do not prevent or materially, adverse:
affect development, construction or operation of Parcel 18 :
accordance with the Vested Rules; and (b) to impose reasonab; conditions deemed necessary by the City to mitigate environmenti
impacts identified in a subsequent or supplemental environment;
impact report or negative declaration prepared in connection wit a proposed Site Development Plan, which impacts could nc
reasonably have been foreseen at the time of approval of thj
Agreement or are otherwise required to be mitigated in accordanc
with State law in effect at the time of the Site Development P1: review.
3.1.2.8 Effect of Site Development Plan Approva
for Parcel 18. Following approval of a Site Development Plan fa
Parcel 18, the City shall not subsequently disapprove the permit
necessary for the development of Parcel 18 in accordance with SUC
Site Development Plan, if the final plans and specifications ar
consistent with and developed as a logical evolution of th
approved Site Development Plan, if LPPI satisfies all applicabl
conditions for such permit as set forth in the Specific Plan, th
Applicable Rules, the Project Approvals, this Agreement and th
approved Site Development Plan, and if LPPI is not in default o
this Agreement as to Parcel 18. Notwithstanding Municipal Codc
Section 21.06.160, approval of a Site Development Plan pursuant tc
this Agreement shall not expire unless a building permit is no.
issued within three (3) years, or such longer time if specified ii
the Project Approvals or the approved Site Development Plan.
3.1.2.9 Construction to be Consistent wit)
ApDroved Site Development Plans. LPPI shall construct or cause tc
be constructed all improvements on Parcel 18 in accordance with the
approved Site Development Plan and permits. Such Parcel shall be developed as established in the Specific Plan, Applicable Rules, Project Approvals and the approved Site Development Plan and related documents, except as changes may be mutually agreed upon
between the City and LPPI. Any such changes shall be within the
limitations of the Specific Plan, the Applicable Rules and the
Project Approvals.
3.1.2.10 Revisions Required by Other Governmental
Approvals. If any revisions or corrections of plans approved by
the City shall be required by any government official, agency,
department or bureau having jurisdiction over the development of Parcel 18 (except the City), LPPI and the City shall cooperate in efforts to obtain waiver of such requirements or to develop a
mutually acceptable alternative.
3.1.2.11 Revisions Requested by LPPI. If LPPI desires to make any change in an approved Site Development Plan
after its approval, such proposed change shall be submitted to the
City for approval in accordance with this Section 3.1.2.
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3.1.2.12 Growth Manaqement. LPPI acknowledgesa agrees that the development of LEGOLAND CARLSBAD shall be subje to Chapter 21.90 of the City Municipal Code (the "Growth Manageme
Ordinancett), and agrees to comply with the Growth Manageme
Ordinance and pay its fair share of all growth management fees a assessments. The City believes, based upon the comprehensive lev of facility planning performed in conjunction with the review the project, that during the term of this Agreement, no grow management compliance issues will arise. However, in the event t City determines that in conjunction with any proposed Si Development Plan, amendment to an approved Site Development Plan
application for a building permit submitted by LPPI for Parcel
(hereinafter referred to as a "Submittal") , any of the grow
management performance standards are not being met, the Ci agrees, irrespective of such failure of performance standards,
accept and process the Submittal in a reasonably timely manne
provided LPPI pays its fair share of the required improvement
facilities management fee or other fee or assessment as reasonat
determined by the City in order to guarantee compliance with t
performance standards. Said fee or assessment shall be paid at t
time the building permit is issued for the Submittal. The parti
agree that this Agreement does not impose upon LPPI any grok
manageme,nt obligations which it would not otherwise have in t
absence of this Agreement.
3.1.3 General Conditions Precedent to Constructic
As conditions precedent to the Commencement
Construction, LPPI shall: (a) provide evidence reasonat:
acceptable to the City that it has obtained fee title to Parcel 1
(b) obtain City approval of a Site Development Plan for Parcel 1
(c) obtain City approval of a subdivision map, to the exte required for the development of Parcel 18; (d) satisfy or cause be satisfied all conditions set forth in the Project Approvz
which are to be satisfied, by their terms, on or prior to t
Commencement of Construction, and which are conditions relating
the development of Parcel 18, or demonstrate to the satisfaction the City that such conditions have been satisfied (other than t satisfaction of any condition which is the obligation of the Ci
to perform), or that bonds have been provided as assurance completion, if otherwise permitted in accordance with the citl Tentative Map or other applicable procedure; and (e) not be default of any provision of this Agreement which, if not cur€
would permit the City to terminate this Agreement.
3.1.3.1 Hazardous Substances Prior to t
Commencement of Construction, LPPI shall perform or ensure that (
has performed all acts necessary to cause Parcel 18 to be free fl
Hazardous Substances in excess of any then-applicable regulatc
cleanup levels and shall submit evidence satisfactory to the C:
demonstrating that Parcel 18 is free from such Hazardc Substances.
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At all times after LPPI's ,acquisition of fee tit1
to Parcel 18, LPPI shall defend, indemnify and hold harmless tf
City, and its officers, employees, attorneys and consultants, fc
any and all claims, judgments, liability, costs, fines, penaltie5
charges and/or claims of any kind whatsoever relating to tf
presence and/or cleanup of Hazardous Substances on, in or unde
Parcel 18 or any portion thereof; provided that provisions of thi
Section shall not be construed as a waiver, to any extent, o
LPPI's rights and remedies against any parties responsible for th
same.
3.1.3.2 Williamson Act Contract Cancellatign, T
the extent legally permissible, the City, as administrator o agricultural preserves and contracts pursuant to the Williamson Ac
(Sections 51200 et seq. of the Government Code) , agrees t
discharge its responsibilities in a manner consistent with th approved land uses contained in, and the timely implementation of
the Specific Plan.
Notwithstanding any provision of this Agreement tc
the contrary, LPPI's obligation to open LEGOLAND CARLSBAD withi:
the time provided in Section 4.2 hereof shall be extended to thc
extent reasonably required as a result of any delay caused by an)
portion of Parcel 18 not being made available to LPPI fox
Commencement of Construction due to non-cancellation of thc
Williamson Act Contract by the City Council (and such non- cancellation results from circumstances beyond the control 01 LPPI) .
To the extent legally permissible, the City agrees
to use good faith efforts to implement the contemplated
cancellation of the Williamson Act Contract consistent with this
Agreement, and within the time required to facilitate the opening
of LEGOLAND CARLSBAD by the end of 1999.
3.1.4 LEGOLAND CARLSBAD: Parcel 18
3.1.4.1 Riqht to develop LEGOLAND CARLSBAD.
Provided LPPI is not in default of this Agreement, LPPI shall have the right during the Term of this Agreement to develop and
construct LEGOLAND CARLSBAD on Parcel 18 in accordance with the
Specific Plan, this Agreement, the Applicable Rules and Project Approvals, and the City shall not modify the permitted uses or the
key conditions of development (including standards and requirements
for public facilities, parking, open space, setbacks, landscaping
and signage) applicable to Parcel 18 without the prior written
consent of LPPI.
3.1.4.2 Intentionally Omitted
3.1.4.3 Intentionally Omitted
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3.1.4.4 Modifications. It is anticipated that c
the Opening Date, LEGOLAND CARLSBAD will include the minim[
development described in Exhibit "E", and that subsequently
LEGOLAND CARLSBAD may be expanded in one or more subsequent phases
From time to time during the Term of this Agreement, LPPI shal have the right to make modifications to Parcel 1 ("Modifications"), including expansion of LEGOLAND CARLSBAD c
Parcel 18, changes or additions to and/or replacement of egistir
buildings, rides, attractions, landscaping, parking facilities ar
other improvements; provided, that such Modifications are i
conformance with the Site Development Plan approved by the City, a
it may be amended from time to time. Certain amendments of th
Site Development Plan shall be approved administratively by th Planning Director, as set forth in the Specific Plan or a permitted under the terms of the approved Site Development Plan
Other amendments shall be approved by the Planning Commission
subject to (a) the Planning Commission's right to refer an
substantial amendments of a controversial nature to the Cit
Council as described in the Specific Plan, and (b) LPPI's right t
appeal any Planning Commission decision to the City Counci pursuant to Section 21.06 of the Carlsbad Municipal Code. Th, City's review of each amendment shall be subject to all limitation
to which the City's review of the initial Site Development Plan i subject under the terms of this Agreement.
3.1.4.5 City-Provided Utilities: Reservation 0: Sufficient Capacity. To the extent that it is within the contro:
of the City, the City shall use its best efforts to ensure thai there shall be sufficient capacity, 'facilities and services wit1 respect to City-provided utilities (such as potable and reclaimec
water, sewer and drainage) to complete construction and open to thc
public LEGOLAND CARLSBAD, and for any Modification that is withi]
the parameters of the Specific Plan. Notwithstanding the foregoing,
the City expressly reserves the right to limit such capacity,
facilities and services to the extent deemed necessary by the Citl
to respond to drought, other water shortage or similar emergencies: which limitation (a) is based on genuine health, safety and general welfare concerns (other than general growth management issues) ; (b) arises out of a documented emergency situation, as declared by thc
President of the United States, Governor of California, or the
Mayor or City Council of the City of Carlsbad; and (c) applies generally to property in the City of Carlsbad and, based upon its terms or its effect as applied, not exclusively or primarily tc
LEGOLAND CARLSBAD. The City agrees that if such limitations become
necessary, they shall be applied only to the extent necessary to
respond to such emergency, and shall not be applied against LEGOLAND CARLSBAD in a discriminatory manner.
cbad\lego\da.6 -13-
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1 3.1.4.6 City-Provided Utilities: Nondiscriminator
Rates and Provision of Service. The City agrees that rates an
charges for City-provided utilities (such as potable and reclaime water, sewer and drainage) for LEGOLAND CARLSBAD shall not be se or imposed in a discriminatory manner, but shall be those rates an charges that are or would be generally applicable to any user of
comparable quantity and quality of the utility use in the City o
Carlsbad (i.e, any other entity whose use or consumption of th
utility is comparable to that of LPPI), and that the City shall no
discriminate against LEGOLAND CARLSBAD in the provision of an'
City-provided utilities (such as potable and reclaimed water, sewe
and drainage).
3.1.4.7 Operations of LEGOLAND. LPPI agrees t operate and maintain Parcel 18 exclusively as LEGOLAND CARLSBAD substantially in accordance with the general description set fort1 in subsection (a) below, subject to the operating condition:
described in subsection (b) and in conformance with the hours 0:
operation described in subsection (c).
(a) General Description. LEGOLAND CARLSBAD means i facility which provides educational and entertainment activitie: and experiences in a park-like setting for children in the 2-13 agc group and their families. LEGOLAND CARLSBAD will include, but is not limited to, the following components:
(1) Active areas . including entertaininc
attractions, educational activities, anc
inter-active experiences such as rides anc
LEG0 building workshop areas;
(2) Passive areas with landscaping, pedestrian trails and garden features;
(3) Retail and restaurant facilities;
(4) Guest services and facilities;
(5) Vehicle parking areas, vehicle circulation
facilities and a pedestrian trail system; and
(6) Service and administrative offices and other
facilities related to the Park.
A more detailed description of LEGOLAND CARLSBAD is included in the
Specific Plan. LEGOLAND CARLSBAD will be developed in compliance
with the parameters, standards and requirements set forth in the Specific Plan.
(b) ODeratins Conditions. LPPI agrees to operate
LEGOLAND CARLSBAD subject to the following conditions:
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I (1) The Park will be operated under the LEG0 trad
name, will feature LEG9 brand products, an
will be comparable in quality and similar (bu not necessarily identical) to the Legolan Parks located in Billund, Denmark and Windsor
England;
(2) Attractions, educational and entertainmen
activities will be directed primarily a
children aged 2 to 13 and their families;
(3) High-speed thrill rides directed primarily a
adults or teenagers will be prohibited; and
(4) Educational components shall be incorporate
into the Park.
(c) Hours of Operation. It is LPPI's intent to operat
LEGOLAND CARLSBAD on a year-round basis, and LPPI anticipates tha the annual number of operating days will be approximately 300
LPPI shall have the right to close operation of LEGOLAND CARLSBA
from time to time, based upon seasonal attendance, economi
feasibility of operation and other factors. However, LPPI shal
operate LEGOLAND CARLSBAD for a minimum of 250 days per Operatin
Year (defined in Section 3.1.4.8, below), subject to closures fo
purposes of maintenance, construction, remodeling or reconstructio or due to force majeure events outside the reasonable control o
LPPI.
3.1.4.8 Pualitv of Life Fee.
(a) As consideration for the vested rights provided in thi
Agreement, LPPI agrees that in the event annual attendance durin
the Term of this Agreement exceeds 2.2 million visitors, LPPI shal
contribute to the City an amount, calculated as set forth i
subparagraph (b) of this Section 3.1.4.8, to be used by the City a
described in subparagraph (d) of this Section 3.1.4.8. Fo
purposes of this Section 3.1.4.8, the Term of this Agreement shal
consist of the five (5) consecutive twelve-month periods (each SUC
period referred to herein as an "Operating Year"), commencing o
the Opening Date (including partial months in the first month an the last month).
(b) LPPI shall contribute to the City an amount equal to th following, not to exceed $3,000,000 in the aggregate:
(i) For each paid admission during the applicabl
Operating Year in excess of 2,200,000 paid admissions, u
to and including 2,500,000 paid admissions, the sum o
$0.50; and
cbad\lego\da.6 -15-
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(ii) For each paid admission during the applicabl.
Operating Year in excess of 2,500,000 paid admissions
the sum of $1.00.
(c) To implement this Section 3.1.4.8, not later than thl
first day of February to occur following a complete Operating Year
and on the first day of February in each of the next four years,
LPPI shall submit to the City an attendance report for th(
preceding Operating Year, and the amount calculated in accordanct with subparagraph (b) of this Section 3.1.4.8, if any. Thc attendance report shall be certified by the chief financial off ice:
of LPPI and an independent certified public accountant as ai
accurate report of the attendance for the applicable Operatinr, Year. To the extent permitted by applicable law, the City shall
maintain the confidentiality of such report as a trade secret.
(d) The funds paid by LPPI to the City in accordance witk
this Section 3.1.4.8 (referred to hereinafter as the "Quality of
Life Fees") shall be used fur public projects, services or programs
which enhance the quality of life in the community and are consistent with the values of the City Council and LPPI, or mitigation of impacts in Carlsbad caused by the additional attendance at LEGOLAND CARLSBAD.
(e) This Section 3.1.4.8 shall automatically terminate and be
of no further force or effect in the event, during the Term of this
Agreement, the City enacts a tax, fee, assessment or surcharge on
ticket sales or entertainment uses wh.ich applies by its terms or in
effect to LEGOLAND CARLSBAD.
(f) LPPI shall keep such books and records as may be
necessary to prepare the attendance report required by this
section. For the purposes of this section, the City shall have the
rights and duties specified in Section 5.04.020 of the Carlsbad Municipal Code, except that when a license tax is referred to it
shall mean the Quality of Life Fee.
cbad\lego\da.6 -16-
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3.1.4.9 Clearance of Parcel 18 if LEGOLAN CARLSBAD is not Completed or Ceases t
ODerate.
(a) Subject to Force Majeure and to the exceptions set fort in this Section 3,1t4.9, if, prior to the Opening Date, LPPI shal
fail to diligently prosecute the construction of LEGOLAND CARLSBA
to completion within a reasonable time period, or abandon Parce
18, or if, at any time prior to the expiration of the Term of thi
Agreement, LPPI shall permanently cease to operate LEGOLAN CARLSBAD on Parcel 18, LPPI shall promptly remove or cause to b
removed and cleared from Parcel 18, at no cost to the City, a1
construction materials and equipment (if applicable), all LEG
model structures, theme park rides, attractions, signs
landscaping, buildings, structures and other improvements, excep
landscaping, buildings, structures and other improvements which ar
determined by the City to be reasonably adaptable to alternate use
on Parcel 18, which determination shall. not be unreasonabl
withheld or delayed.
(b) For purposes of this Section, LEGOLAND CARLSBAD shall bc deemed to "permanently cease to operate" if, subject to Fora Majeure, at any time after the initial opening of LEGOLAND CARLSBAI to the public, LPPI closes LEGOLAND CARLSBAD to the public for mor( than 90 days, or announces that LEGOLAND CARLSBAD will close for ai
indefinite time (except if in either case, such closure is ii
connection with construction or repair of LEGOLAND CARLSBAD an(
such construction or repair proceeds in a timely and continuou:
manner).
(c) This Section 3.1.4.9 shall not be deemed to apply to an: of the following:
(i) Scheduled phased construction prior to the Openin5
Date, including mass grading in advance of actual construction, provided such construction commences not later than 180 days after mass grading is completed, anc
is diligently prosecuted to completion thereafter;
(ii) A phased Modification or a decision not to proceec with a Modification, so long as the Park continues operation;
(iii) A cessation due to delay in obtaining necessarl
governmental permits and approvals;
(iv) A cessation resulting from a failure by CRC, the City, Caltrans or other third party to provide ,infrastructure required to be provided by such party; or
(v) A cessation resulting from a Force Majeure Event.
cbad\lego\da.6 -17-
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(d) Concurrently herewith, LPPI has caused its paren.
corporation, LEGO A/S, to execute and deliver to the City i
corporate guarantee, substantially in the form attached as Exhibit
"G" which is attached hereto and incorporated herein by this
reference, setting forth the agreement of LEGO A/S to perforn
LPPI's obligations pursuant to this Section in the event LPPI fails to perform such obligations.
3.1.4.10 Donation by LPPI. Subject to Forct
Majeure, and subject further to the right to extend the Term of
this Agreement set forth in Section 4.2, below, and provided LPPl
obtains all Project Approvals (unless failure to obtain a Project
Approval results from a failure by LPPI to submit any material required as a condition to processing of such Project Approval ox otherwise fail to satisfy any applicable condition precedent tc such Project Approval), in the event LPPI fails to open LEGOLANI:
CARLSBAD to the public prior to the expiration of the Term of this
Agreement, LPPI shall not be in default of this Agreement, but
shall make a monetary donation to the City in the amount of
$500,000, to compensate City for a portion of the administrative
and design costs expended by the City in connection with this
Agreement. By signing or initialing in the space provided below,
LPPI and City acknowledge and agree that it would be. impractical
and extremely difficult for City to estimate its costs and losses as the result of a failure by LPPI to complete construction of and open to the public LEGOLAND CARLSBAD as provided in this Agreement, and that under the circumstances as they exist as of the date of
execution of this Agreement, the sum of the donation set forth
above is a reasonable estimate of costs that the City would incur
in the event of such failure. Notwithstanding any provision to the
contrary contained herein, LPPI's obligation to make the donation
as set forth above shall survive termination of this Agreement.
Concurrently herewith, LPPI has caused its parent corporation, LEGO
A/S, to execute and deliver to the City a corporate guarantee,
substantially in the form attached as Exhibit rtGfl which is attached hereto and incorporated herein by this reference, setting forth the
agreement of LEGO A/S to perform LPPI Is' obligations pursuant to
this Section in the event LPPI fails to perform such obligations.
On behalf of LPPI On behalf of the City
cbad\lego\da.6 -18-
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3.1.4.11 Sicrnase. The City agrees that LPPI sha:
be entitled to erect, place and maintain within the Amendt
Specific Plan area signs identifying LEGOLAND CARLSBAD . accordance with the signage program set forth in the Amendt Specific Plan. In addition, the City agrees to support requests 1
Amended Specific Plan area that identify LEGOLAND CARLSBAD, and tk
City agrees not to contest or object to any such freeway signs th;
are approved by CalTrans.
LPPI for CalTrans' approval of freeway signs located outside t.
3.1.4.12 LEGO Drive. City agrees that the stret designated as such in the Map of Parcel 18 may be named "Legolar Drive" or similar name.
3.1.5 Assiqnment bv LPPI
3.1.5.1 Subject to the approval of the City t
provided below, upon written notice submitted to the City not les
than thirty (30) days prior to each transfer or assignment, tk
rights and obligations of LPPI as to Parcel 18 under this Agreemer
may be transferred or assigned from time to time during the Term c
this Agreement, provided that such transfer or assignment is eithc (a) made as part of a transfer, assignment, sale or lease of all c Parcel 18, or (b) pursuant to an assignment of a security interes
in Parcel 18 to a Mortgagee as security for financing of tl-
development and operations of LEGOLAND CARLSBAD on Parcel 1 (including any combination of construction financing, bridge loans take-out and permanent financing), &, subject further, .in ar~
event, that Parcel 18 shall continue to be operated exclusively a
a LEGO family park, as described in Section 3.1.4.7. Any SUC
transfer or assignment shall be subject to the provisions of thi Agreement and the controls and limitations contained herein. An
such assignee or transferee taking legal title or a leasehol
pursuant to a lease from LPPI, shall enjoy the rights of LPPI unde
this Agreement as such rights pertain to Parcel 18.
3.1.5.2 Concurrently with the submission of th notice of proposed transfer or assignment by LPPI, LPPI shal
submit to the City (a) a copy of all papers by which the transfe
is to be effected, (b) a fully executed instrument, in form an1 content reasonably acceptable to the City, pursuant to which thl
transferee expressly assumes and agrees for the benefit of the Cit, to perform all of the obligations of LPPI, under this Agreement
and (c) an acknowledgment, in form and content reasonably approve!
by the City and executed by the transferee, pursuant to which th' transferee acknowledges that the transferee has read an!
understands this Agreement and all of the provisions hereof. Th
City agrees to consider the pre-approval of any form of propose1
instruments submitted by LPPI pursuant to this Section 3.1.5. prior to the execution of such instruments. Provided LPPI is not iI
default of any of its obligations under this Agreement, the Cit!
cbad\lego\da.6 -19-
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shall promptly consider, and approve, conditionally approve o
disapprove the proposed transfer.
3.1.5.3 In addition to the notice referred t
above, LPPI shall submit written notice to the City immediate1
upon the consummation of any such transfer or assignment and shal include in such notice a fully executed copy (showing a1 recordation information for any recordable documents) of th
instrument(s) by which the transfer or assignment was effected.
3.1.5.4 Notwithstanding anything to the contrar,
contained herein, LPPI shall have the right, without any furthe
City consent, to transfer its interest in Parcel 18 and assign it
rights and obligations under this Agreement to any affiliate
company or entity owned or controlled, directly or indirectly, b
majority shares or voting rights, by the Kirk Christiansen family,
provided that Parcel 18 shall continue to be operated exclusivel]
as a LEG0 family park, as described in Section 3.1.4.7.
3.1.6 Intentionally Omitted
3.2 Public Improvements and Utilities
The parties hereby agree that the public improvements an(
utilities necessary for the development of Parcel 18 shall be thost set forth in the ltDescription of Public Improvements" attached tc this Agreement as Exhibit fICft.
3.2.1 CFD # 1 Taxes.
Nothing contained herein shall affect in any way thc
obligation of LPPI or its successors or assigns to pay applicable
fees with respect to Community Facilities District #l. The parties
acknowledge that Parcel 18 is subject to such taxes.
3.2.2 City's Commitment to Assist in Financinq I-
5/Cannon Road Interchanqe
3.2.2.1 Method of Financinq. The parties anticipate that the cost of improving the I-5/Cannon Road interchange (the 111-5/Cannon Road Improvementsft) shall be provided
as follows: (a) the California Department of Transportation (llCaltransll) shall provide 50% of the cost, up to-$3,000,000 (the "Caltrans Share"); and (b) the City shall provide $2,100,000 and, contingent upon Caltrans' assuming the cost of ramp metering at the I-S/Poinsettia Land Interchange and the 1-5/La Costa Avenue
Interchange, an additional $500,000 for a total not to exceed
$2,600,000 (the "City's Share of I-5/Cannon Road Costs").
cbad\lego\da.6 -20-
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3.2.2.2 City's Monetary Commitment. Provided (a
LPPi is not in default of this Agreement, and (b) Caltran
executes a cooperative agreement committing Caltrans to provide th
Caltrans Share of such costs, the City hereby aqrees to appropriat
funds to pay the City's Share of I-5/Cannon Road Costs, to be mad
available when and as needed for the construction of the I-5/Cannc
Road Improvements. The City shall make available the City's Shar of the 1-5/Cannon Road Costs when required by Caltrans. The City' Share of the 1-5/Cannon Road Costs shall be disbursed by the Cit
or Caltrans for construction in accordance with disbursemen procedures that are mutually acceptable to the City and Caltrans
3.2.2.3 Aqreement with Caltrans. City shall us
its best efforts to obtain all necessary approvals by the State o California to provide the Caltrans Share of the costs o constructing the 1-5/Cannon Road Interchange, so that th interchange may be completed prior to the Opening Date, a described in Sections 4.2.1 through 4.2.3. If necessary, the tim
required for the Opening Date to occur shall be extended unti construction of the 1-5/Cannon Road Interchange is completed. Th
parties agree that LPPI shall have the right, but not th obligation, to commence construction of LEGOLAND CARLSBAD, even i execution of all necessary documentation authorizing the respectiv
availability of the City Share and Caltrans Share of the I-5/Canno Road Costs shall not have occurred by the date of Commencement o
Construction; provided that completion of the 1-5/Cannon Roa Interchange shall be a condition precedent to LPPI's obligation t open LEGOLAND CARLSBAD to the public. If LPPI elects to dela commencement of construction of LEGOLAND CARLSBAD until executio of all such necessary documentation, the time required for openin LEGOLAND CARLSBAD to the public shall be extended to the exten required as a result of such delay in the commencement o construction, as reasonably determined by the City Council.
3.2.2.4 Maintenanceof I-S/CannonRoadInterchanq
LandscaDinq. The parties shall use their best efforts to obtai the agreement of Caltrans to install and maintain enhance landscaping around the I-5/Cannon Road interchange; provided however in the event Caltrans does not assume such responsibility LPPI, in conjunction with CRC, shall have the right to assign SUC responsibility to a voluntary maintenance association among one o more of the property owners within the Carlsbad Ranch Specifi Plan.
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3.2.3 EIR Mitisation Measures
LPPI (as to Parcel 18 only) shall at its own expens'
timely perform all mitigation measures identified in Exhibit I'D
attached hereto and incorporated herein by this reference, Thl
parties understand and agree that, if and to the extent required b the California Environmental Quality Act or other applicable law
the City may, at the time of Site Development Plan review, impos additional mitigation measures as described in Section 3.1.2.7(b) and that LPPI shall be responsible for paying the cost of and/o
performing all such subsequent mitigation measures. Nothing i
this Agreement shall be construed to relieve LPPI of its obligatio
to perform additional mitigation, if any, as determined i accordance with subsequent environmental documents.
3.2.4 Dedications
The portions of Parcel 18 to be reserved or dedicated fo public purposes pursuant to this Agreement, if any, shall be tha property described as set forth in Exhibit rtF'l , attached hereto an1 incorporated herein by this reference. The property described i Exhibit rcF1t shall be dedicated by LPPI not later than the issuancl of a building permit for LEGOLAND CARLSBAD. The City shall takl such actions as may be necessary to vacate any prior dedications offers to dedicate and grants of easements that are no longe.
necessary for the development of the Project in accordance with thl
Specific Plan and this Agreement. The parties understand and agrel
that minor changes, modifications or adjustments to the dedication; described in Exhibit clF1t and additional minor dedications may bl required as the result of Site Development Plan review for Parce
18, provided any such changes are consistent with the Specific
Plan, the Applicable Rules, the Project Approvals and thi:
Agreement, and shall not constitute an amendment to this Agreement
3.2.5 Improvement Security/Insurance
As a condition of approving a final subdivision map 0:
any future subdivision for all or a portion of Parcel 18, the Cit:
may require the furnishing of appropriate and reasonable improve, ment agreements and security pursuant to City Ordinance an(
California Government Code Sections 66462 and 66499, & sea Nothing in this Agreement shall be construed as altering 0:
relieving LPPI of any obligation imposed pursuant to Governmen'
Code Section 66462. In the event public financing is used to fun( construction of improvements, the City may also require evidence 0: compliance with labor standards and insurance required as a stan.
dard condition under federal, state or local law at the time 0:
City action on any necessary development permits or any othel
entitlements for the use and development of Parcel 18 pursuant tc
the Agreement. If the improvements are financed by an Assessmenl
District or Community Facilities District, the improvement securit]
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may be released in accordance with Government Code Section 66495. or similar provisions.
3.2.6 Further Land Use Actions
The parties acknowledge that subdivisions, boundary lir adjustments or similar modifications may be necessary in the futur
and are contemplated by this Agreement provided any such change
are consistent with the Specific Plan, the Applicable Rules, tk
Project Approvals and this Agreement, and shall not constitute t
amendment to this Agreement.
3.2.7 Financins of Public Improvements
(a) The required public improvements for LEGOLAND CARLSBP
consist of those offsite improvements described in the llDescriptic of Public Improvements" attached to this agreement as Exhibit IIC" The public improvements may be financed through a combination c private and public financing sources including, but not limited t
direct funding by CRC, Mello-Roos Districts, or Assessmer
Districts. In addition, the City and Caltrans shall share the cos
of constructing the Cannon Road/I-5 Interchange, as described i
Section 3.2.2 of this Agreement.
(b) In the event the Opening Date is or will 'be delayed t the result of the failure by CRC to provide offsite improvement
required to be provided by such entity, LPPI shall have the rigk to apply to the City to extend the time required for the Openir Date to occur, and the City shall not unreasonably withhold, dela
or condition approving an extension of the Opening Date to th extent reasonably required as a result of the delay. In additior in the event the Opening Date is or will be delayed as the resul of the failure of the City and/or Caltrans to provide for th construction of the Cannon Road/I-5 Interchange, as provided i Section 3.2.2 of this Agreement, LPPI's obligations pursuant t this Agreement shall be extended to the extent reasonably require
as a result of the delay, and, in the event of such a failure t
CRC, the City and/or Caltrans, LPPI shall have the right (but nc
the obligation), at its option, to:
(i) elect not to proceed with the construction c LEGOLAND CARLSBAD, and terminate this Agreement; or
(ii) assume some or all of the obligations of the part who is otherwise responsible for such improvements, complete th
work and obtain reimbursement from such party.
City agrees to reimburse LPPI promptly for any reasonable cost
incurred by LPPI in assuming any obligation of the City to provid
funds for the construction of the Cannon Road/I-5 Interchange, a provided in Section 3.2.2 of this Agreement. In addition, Cit
agrees to use its best efforts to assist LPPI in securir
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reimbursement from any other responsible party for any improvement
so constructed by LPPI.
(c) The parties anticipate that portions of the publi
improvements and utilities required for the Project will b
financed by an Assessment District ("Assessment District") pursuan to the Municipal Improvement Act of 1913, California Street an
Highways Code Section 10000 3 seq., and an Infrastructur
Financing District (ttIFDt4) pursuant to California Government Cod
Section 53395 & sea., to be formed at the request of CRC, as th
master developer of the Carlsbad Ranch Specific Plan area. Th
City shall use reasonable best efforts and diligence, subject t
satisfaction of all applicable legal requirements and Counci
policies:
(i) To cooperate in good faith with CRC in the formatio
of the Assessment District and the IFD and issuance and sale of on
or more series of bonds authorized by the Improvement Bond Act o
1915; and
(ii) To cooperate in good faith with LPPI to includ
provisions in the governing documents of the Districts t
facilitate LPPI's exercise of the rights and receipt of th
benefits available to CRC thereunder with respect to Parcel 18
including, but not limited to, the following:
(A) Provisions permitting the assignment to LPPI
at its option and upon its written demand, of CRC's right t
construct all or any portion of the public improvements an
utilities to be financed by any such District which ar required as a condition to development of the Project
together with CRC's right to convey the completed improvement
to the City and receive a purchase price or reimbursemen
therefor; and
(B) Provisions allowing LPPI the right to enforc
any provisions of the IFD which allocate the amount o
priority of property tax increment revenues or bond proceed
toward payment of assessments which are a lien on Parcel 18 o
provisions which otherwise benefit Parcel 18.
3.3 Development Impact Fees
3.3.1 Applicable Fees and Assessments
Subject to all applicable laws then in effect, city shall hav
the right to charge and apply to Parcel 18 all generally applicabl
Development Impact Fees and assessments as may be in effect at th
time a Site Development Plan is approved or permits are issued fo LEGOLAND CARLSBAD; provided, such fees shall not be applied by th City against Parcel 18 in a discriminatory manner, either by it
terms or (due to the unique nature of LEGOLAND CARLSBAD) i
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practice. Such fees and assessments shall be paid when and i
required by the applicable City ordinance establishing such fee (
assessment. City shall provide LPPI with a description of the ral
and method for computing any development impact fees to be assesst
against LEGOLAND CARLSBAD.
3.3.2 City Reserves Risht to Increase Fees
City reserves the right at any time during the Term ( this Agreement to increase or otherwise modify any and a:
Development Impact Fees applicable to the Project. City al:
reserves the right to create and apply to Parcel 18 new categorit
of development impact fees. Provided, (a) Such increases a1
modifications to fees, and any such new fees, shall have generz applicability, and not be applied by the City against Parcel 18 :
a discriminatory manner, either by its terms or (due to the uniql nature of LEGOLAND CARLSBAD) in practice; (b) the application ( such increases, modifications to fees and new fees is prospectivc and (c) their application would not prevent development of Para
18 in accordance with this Agreement.
3.3.3 Fee Credits
LPPI shall be eligible to receive any fee credits t which it may be entitled under the terms of the applicable Cit
ordinance creating any fee applicable to Parcel 18.
3.4 Mortqaqee Protection
3.4.1 The parties hereto agree that this Agreemel
shall not prevent or limit the right of LPPI at its so:
discretion, to encumber Parcel 18 or any portion thereof or a]
improvement thereon by any mortgage, deed of trust or otht
security device (collectively "Mortgageff) securing financing of tl development and operations of LEGOLAND CARLSBAD on Parcel : (including any combination of construction financing, bridge loan:
take-out and permanent financing), as provided in this Agreemenl
provided, however, that any such Mortgage shall be subordinate 1
(i) this Agreement, and (ii) all lien(s) and/or encumbrances : connection with the public financing contemplated by th: Agreement; and provided further that if any portion of Parcel 18 t be dedicated or transferred to the City pursuant to this Agreemer shall be subject to any Mortgage, such Mortgage shall be reconvey6 prior to the dedication or transfer.
3.4.2 Prior to the recordation of this Agreement LPPI shall ensure that any prior lienholders whose liens affec Parcel 18 upon acquisition of such fee title by LPPI and have priority senior to the Agreement subordinate their respecti\ interests to this Agreement.
cbad\lego\da.6 -25-
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3.4.3 The City acknowledges that prospective lende
providing such financing may request certain interpretations a
' modifications of this Agreement, and agrees upon request, from ti: to time, to meet with LPPI and representatives of such lenders
modification. City shall not unreasonably withhold its consent any such requested interpretation or modification which the Ci
determines is consistent with the. intent and purposes of th
Agreement and protects the interests of City under this Agreemen
Any Mortgagee of Parcel 18 shall be entitled to the followi
rights and privileges:
discuss in yood faith any such request for interpretation
(a) Neither entering into this Agreement nor
breach of this Agreement shall defeat, render invalid, diminish
impair the lien of any Mortgage made in good faith and for valul
(b) Any Mortgagee which has submitted a request
writing to the City in the manner specified herein for givi.
notices shall be entitled to receive written notification from Ci.
of any default LPPI in the performance of such party's obligatio:
under this Agreement.
(c) If City timely receives a request from
Mortgagee requesting a copy of any notice of default given to LP:
under the term of this Agreement, City shall provide a copy of th(
notice to the Mortgagee within ten (10) days of sending the noti(
of default to LPPI, as the case may be. The Mortgagee shall ha7
the right, but not the obligation, to cure the default during tl remaining cure period allowed such party under this Agreement.
(d) Any Mortgagee who comes into possession (
Parcel 18, or any part thereof, pursuant to foreclosure of ti
mortgage or deed of trust, or deed in lien of such foreclosurc
shall take Parcel 18, or part thereof , subject to the terms of th: Agreement; provided, however, that such Mortgagee shall not i liable for any defaults or monetary obligations of LPPI arisil prior to acquisition of title to Parcel 18 by such Mortgagee; a1
provided further in no event shall any such Mortgagee or it
successors or assigns be entitled to a building permit or occupanc
certificate unti1,all fees and other monetary obligations due und(
this Agreement have been paid to the City and all otherwi5
applicable conditions to such permit or certificate have bec
satisfied.
3.5 Construction Reports and Schedulinq
The parties shall meet quarterly or at such other reasonabl
times as requested by the City in order to discuss the progress c
construction. At these meetings, LPPI shall provide to the Cit schedules, progress updates and other information, indicating kc dates and events leading to the opening to the public of LEGOLAP
CARLSBAD. It is anticipated that such quarterly meetings shall I:
cbad\lego\da.6 -26-
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sufficient to report on the progress and status of inspections bu' the City Manager may require LPPI to submit written reports i:
deemed reasonably necessary.
3.6 Insurance
3.6.1 Maintenance of Insurance
Before commencing any improvement or construction worl
obtain the insurance required under this Agreement. Thereafter LPPI shall maintain all such insurance throughout the Term of thi: Agreement, unless LPPI obtains written approval of the City Ris: Manager for any proposed change in the insurance require1
hereunder.
pursuant to any City-appr.oved permit on the Project, LPPI shal
3.6.2 Workers' Compensation Insurance
LPPI shall maintain workers' compensation insurance wit limits as required by the Labor Code of the State of California fo
all persons employed by LPPI at the site of the Project. LPP
shall require each contractor and subcontractor to provide workers
compensation insurance for their respective employees. LPPI shal
indemnify the City for damage suffered by the City as a result o LPPI's failure to obtain and maintain such insurance.
3.6.3 Liabilitv Insurance
LPPI shall maintain or cause to be maintained commercia
general liability insurance with a liability limit of at leas
$3,000,000 combined single limit per occurrence, insuring LPP
against liability for bodily injury, personal injury and propert
damage arising out of the ownership, use, improvement, maintenanc and operation of the Project. Such liability insurance shall:
(a) Name the City (and its officials, employees agents, attorneys and authorized representatives) as an additiona
insured; provided, however, such insurance shall not cove
liabilities of the City to the extent arising out of the neqligenc
or willful misconduct of the City, or its officials, employees
agents, attorneys or authorized representatives;
(b) Constitute primary insurance as respects th
City and its officials, employees, agents, attorneys and authorize
representatives, and any insurance or self-insurance maintained b
the City, its officials, employees, agents, attorneys an
authorized representatives shall not contribute to it; and
(c) Provide for severability of interests 0 include a cross-liability endorsement, such that an act or omissi0
of an insured shall not reduce or avoid coverage of anothe
insured.
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3.6.4 Other Insurance Provisions
Each insurance policy required hereunder shall
endorsed to state that coverage shall not be suspended, voide
canceled or reduced in coverage or in limits, unless thirty (3
days' prior written notice by certified mail, return recei
requested, has been given to the City. All insurance shall placed with insurers licensed by the State of California transact business of the types required herein. Except where LP
provides self insurance, pursuant to a program of self-insuran
reasonably acceptable to the City, each insurer shall have current Best's Key Rating of not less than A-V.
4. GENERAL PROVISIONS
4.1 ADProval Procedure: Effective.Date; Recordation
The following procedure shall govern approval of th
Agreement (which shall precede the execution hereof by the City
(a) Prior to City Council consideration of th
Agreement LPPI shall execute this Agreement; provided, howeve that LPPI shall have the right prior to the Effective Date of th
Agreement to withdraw its execution based upon the terms a
conditions contained in the Project Approvals.
(b) City Council shall undertake all neceSSa
proceedings to consider this Agreement. Approval by the City sha be by adoption of the Approval Ordinance.
(c) Following adoption of the Approval Ordinance, tl
Mayor shall execute this Agreement on behalf of the City, and tal
such steps as may be required to obtain Coastal Commissic
Approval.
(d) This Agreement shall be effective immediately up(
Coastal Commission Approval (the ''Effective Date"). As provided Section 65868.5 of the Development Agreement Act, the City sha.
cause a copy of this Agreement to be recorded with the San Die(
County Recorder within ten (10) days following the Effective Datc
Any recording costs shall be paid by LPPI.
4.2 Term
This Agreement shall commence upon the Effective Date, an(
subject to earlier termination in accordance with the terms hereol
shall remain in effect for five years following the Opening Date LPPI intends to and shall use good faith efforts to open LEGOLAI
CARLSBAD to the public on or before December 31, 1999. LPPI sha:
in any event open LEGOLAND CARLSBAD to the public not later thi
the Opening Date as provided in Sections 4.2.1 through 4.2.:
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below. The City shall have the right to terminate thi? Aqreemer in the event LPPI fails to open LEGOLAND CARLSBAD prior to tk Opening Date set forth, and subject to the extensions of tin
provided in Sections 4.2.1 through 4.2.3.
4.2.1 Prior to the Open-inq Date
(a) Subject to extensions permitted by this Sectic
4.2,.1, and subject to the provisions of Section 4.2.3, below, ti Term of this Agreement shall expire on the fifth (5th) anniversal
of the Effective Date in the event the Opening Date does not oca
by that date.
(b) In the event LEGOLAND CARLSBAD is not open t
the public by the fifth (5th) anniversary of the Effective Date
LPPI shall be entitled to an extension of the time required for tk
Opening Date for one year, by delivering to the City, prior to tk,
fifth (5th) anniversary of the Effective Date, a notice c
extension, accompanied by payment in the amount of $450,000, s
that the Opening Date shall be required to occur on or prior to th
sixth (6th) anniversary of the Effective Date.
(c) In the event LPPI has extended the require
time for the Opening Date in accordance with subdivision (b), bu
LEGOLAND CARLSBAD is not open to the public by the sixth (6th
anniversary of the Effective Date, LPPI shall be entitled to
further extension of the time required for the Opening Date for on
additional year, by delivering to the City, prior to the sixt
(6th) anniversary of the Effective Date, a notice of secon
extension, accompanied by an additional payment in the amount o
$450,000, so that the Opening Date shall be required to occur on 0 prior to the seventh (7th) anniversary of the Effective Date.
4.2.2 Followina ODenins Date
In the event the Term of this Agreement does not expir
prior to the Opening Date in accordance with Section 4.2.1, th
Term of this Agreement shall expire five years following th
Opening Date.
4.2.3. Extensions of Time to Perform
Notwithstanding any other provision of this Agreement LPPI shall be entitled to extend the time required for the Openinc Date to occur, without payment of any extension fee, in the even1
of the following:
(a) Delay in obtaining any necessary governmenta: permits and approvals, including, but not limited to, delay i~ cancellation of the Williamson Act Contract as described in Sectiol
3.1.3.2, which delay is not caused by any failure by LPPI tc
provide any necessary submittals, or delay in execution of al:
cbad\tego\da.6 -29-
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necessary documentation authorizing the availability of the City and the State's contribution to the11-5/Cannon Road Costs, described in Section 3.2.2.3;
(b) Force Majeure Delay, as provided in Secti
4.24 of this Agreement; or
(c) LPPI shall be entitled to extend the ti
required for the Opening Date to occur, in the event of delay
default by the City or Caltrans in constructing the I-5/Cannon Ro
Improvements; and
(dl Subject to the approval of the City accordance with Sections 3.1.2.3 or 3.2.7, LPPI shall be entitl
to extend the time required for the Opening Date to occur, in t
event of delay or default by CRC in providing necessa
infrastructure or paying applicable fees (except fees relating
Williamson Act Contract cancellation).
4.3 Cooperation and Implementation
4.3.1 City represents that it will cooperate wi
LPPI to the fullest extent reasonable and feasible to impleme this Agreement. Upon satisfactory completion by LPPI of all of i preliminary actions and payments of appropriate fees, City sha
promptly commence and diligently proceed to complete all ste
necessary for the implementation of this Agreement and t
development of Parcel 18 in accordance with the terms of th
Agreement, including, but not limited to, the processing a1
checking of any and all Project Approvals, agreements, covenanl
and related matters required under the conditions of th:
Agreement, building plans and specifications, and any other plal
necessary for the development of Parcel 18, requests fc
inspections and certificates of occupancy, filed by or on behalf (
LPPI. LPPI shall, in a timely manner, provide City with a:
documents, plans and other information necessary for City to car]
out its obligations hereunder.
4.3.2 In the event of any legal action instituted I
a third party (not a party to this Agreement) or any governmentz entity or official (other than the City or an official of th
City) , challenging the validity of any provision of this Agreement
the Project Approvals or any City action relating thereto, th
parties hereby agree to cooperate in defending said actior
provided, however, LPPI shall indemnify and hold harmless City frc all litigation expenses, including reasonable attorneys' fees ar costs, arising out of any legal action instituted by such thir party (not a party to this Agreement), or other governmental entit
or official (other than City or an official of the Citl challenging the validity of any provision of this Agreement, tk
Project Approvals or any City action relating thereto. City shal
Promptly notify LPPI of any such action and City shall cooperate i
cbad\lego\da.6 -30-
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the defense thereof. LPPI's obligation to indemnify the Cit
pursuant to this Section shall not apply to legal actions by one c
area challenging City action relating to Project Approval
affecting such owners and not affecting Parcel 18.
mure other Owners of property within the Specific Plan Amendmer
4.3.3 The filing of any lawsuit(s) by a third part
(not a party to this Agreement) against City, LPPI relating to thj
Agreement or to other development issues affecting the Projec
shall not delay or stop the processing or issuance of any permit c
authorization necessary for development of the Project, unless tf City in good faith determines that such delay is legally required
4.4 Enforceability
4.4.1 Default
Subject to Section 4.4.2, failure by any party to perfor
any term or provision of this Agreement required to be performed k
such party shall constitute an event of default ("Event c Default"). For purposes of this Agreement, a party claimir another party is in default shall be referred to as tl-
tlComplaining Party," and the party alleged to be in default shal
be referred to as the "Party in Default." Provided, a Complainir
Party shall not exercise any of its remedies as the result of SUC
Event of Default unless such Complaining Party first gives notic
to the Party in Default as provided in Section 4.4.2, and the Part in Default 'fails to cure such Event of Default within th applicable cure period.
4.4.2 Procedure Resardins Defaults.
4.4.2.1 The Complaining Party shall give writte
notice of default to the Party in Default, specifying the defaul
complained of by the Complaining Party. Delay in giving SUC
notice shall not constitute a waiver of any default nor shall i
change the time of default.
4.4.2.2 The Party in Default shall diligent1
endeavor to cure, correct or remedy the matter complained of
provided such cure, correction or remedy shall be completed withi
the applicable time period set forth herein after receipt o
written notice (or such additional time as may be deemed by th Complaining Party to be reasonably necessary to correct th
matter).
4.4.2.3 Any failures or delays by a Complainin
Party in asserting any of its rights and remedies as to any defaul
shall not operate as a waiver of any default or of any such right or remedies. Delays by a Complaining Party in asserting any of it
rights and remedies shall not deprive the Complaining Party of it
right to institute and maintain any actions or proceedings which i
cbad\lego\da.6 -3 1-
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may deem necessary to protect, assert, or enforce any such rigk
or remedies.
4.4.2.4 If an Event of Default occurs with respe
to (a) the payment of money, (b) the submission of documents, ( the obtaining and maintaining of the insurance required by th
Agreement, or (d) the remediation of Hazardous Substances, prior
exercising any remedies, the Complaining Party shall give the Par in Default written notice of such default. The Party in Defau
shall have a period of thirty (30) days after such notice is giv within which to cure the default prior to exercise of remedies the Complaining Party.
4.4.2.5 If an Event of Default occurs with respe to any other obligation, prior to exercising any remedies, tl Complaining Party shall give the Party in Default written notice ( such default. If the default is reasonably capable of being cur( within thirty (30) days, the Party in Default shall have su( period to effect a cure prior to exercise of remedies by tl
Complaining Party. If the nature of the alleged default is su(
that it cannot practicably be cured within such 30 day period ai the default pertains to an obligation other than (a) the payment c
money, (b) the submission of documents, (c) the obtaining ar maintaining of the insurance required by this Agreement, or (d) tk remediation of Hazardous Substances, the cure shall be deemed t have occurred within such 30 day period if (w) the cure j commenced at the earliest practicable date following receipt of tk
notice; (x) the cure is diligently prosecuted to completion at a1
times thereafter; (y) at the earliest practicable date (in no even
later than 30 days after the curing party's receipt of the notice) the curing party provides written notice to the other party tha the cure cannot practicably be completed within such 30 day period
and (2) the cure is completed at the earliest practicable date. I no event shall Complaining Party be precluded from exercisin
remedies if a default is not cured within one hundred eighty (180
days after the first notice of default is given.
4.4.2.6 Subject to the foregoing, if a party fail to cure a default in accordance with the foregoing, the Complainin
Party, at its option, may terminate this Agreement, and/o
institute legal proceedings pursuant to this Agreement.
4.4.2.7 Without limitation, evidence of defaulr may arise in the course of the regularly scheduled annual revie1 described in Section 4.4.3. below.
cbad\lego\da.6 -32-
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4.4.3 Annual Review
4.4.3.1 Rewonsibilities of the Parties Cit shall, at least every twelve (12) months during the term of thi
Agreement, review the extent of good faith substantial complianc
by LPPI, with the terms of this Agreement. Subject to the notic
and cure procedure set forth in Section 4.4.2 , such a periodi review may result in amendment or termination of this Agre'ement
provided a default has been established under the terms of thi
Agreement. Pursuant to Government Code Section 65865.1, a
amended, LPPI shall have the duty to demonstrate its good fait
compliance with the terms of this Agreement at such periodi
review. The parties recognize that this Agreement and the docu
ments incorporated herein could be deemed to contain man.
requirements (i.e., construction standards, landscape standards
etc.) and that evidence of each and every requirement would be i
wasteful exercise of the parties' resources. Accordingly, LPP. shall be deemed to have satisfied its duty of demonstration if i. presents evidence satisfactory to the City of its good faith an!
substantial compliance with the major provisions of this Agreement
including information concerning the numbers, types, densities
heights and sizes of structures completed and of any reservation:
and dedications to the City. Any party may address any requiremen.
of this Agreement during the review. However, ten (10) days'
written notice of any requirement to be addressed shall be made b)
the requesting party. If at time of review an issue not previous11 identified in writing is required to be addressed, the review at
the request of either party shall be continued to afford sufficient
time for analysis and preparation. CRC shall pay the City's
reasonable costs in conducting annual review in accordance witk
this Section 4.4.3.1. Any costs required to be incurred in order to comply with this Agreement, as the result of such annual revieb or otherwise, shall be the responsibility of LPPI.
4.4.3.2 Opportunity to be Heard Upon written request to City by LPPI, LPPI shall be permitted an opportunity tc
be heard orally and/or in writing at a noticed public hearing regarding its performance under this Agreement. LPPI shall be
heard before the City Council at any required public hearing
Concerning a review of action on the Agreement.
4.4.3 -3 Information to be Provided LPPI The City shall, to such an extent as is practical, deposit in the mail to
LPPI a Copy Of staff reports and related exhibits concerning cQntract performance a minimum of ten (10) calendar days prior to any such review or action upon this Agreement by the Planning
Commission or the City Council.
cbad\lego\da.6 -33-
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4.4.4 Institution of Leqal Action
4.4.4.1 Subject to notice of default a
further to the limitation on remedies set forth in Section 4.4.
in addition to any other rights or remedies, any party to th
Agreement may institute legal action to cure, correct or remedy a.
default, to enforce any covenants or agreements herein, to enjo
any threatened or attempted violation hereof, or to obtain a
other remedies consistent with this Agreement. Such legal acti
shall be heard by a referee from the San Diego County Superi
Court pursuant to Code of Civil Procedure Sections 638 et g
LPPI and City shall agree upon a single referee who shall then t
all issues, whether of fact or law, and report a finding a
judgment thereon and issue all legal and equitable relic
appropriate under the circumstances of the controversy before h. or her. If the parties are not able to agree upon a referee with.
ten (10) days of a written request to do so by either party heretc
any party may seek to have a referee appointed pursuant to Code (
Civil Procedure Section 640. The costs of such proceeding sha:
initially be borne equally by the parties, and each party sha:
bear its own costs. Any referee selected pursuant to this Secti(
4.4.4.1 shall be considered a temporary judge appointed pursuant 1
Article 6, Section 21, of the California Constitution. Providec
however, that the obligation of the parties to utilize such referee is conditioned upon the referee having full legal authorit
to award and supervise full implementation of the remedic
described in Section 4.4.5 hereof. Nothing in this Section shal
preclude either party's right to appeal the decision of tk
referee.
opportunity to cure under Sections 4.4.1 and 4.4.2 , and subje
4 -4.4 -2 If a legal action or proceeding is brougk by any party to this Agreement because of an Event of Default undc
this Agreement, or to enforce a provision hereof, each party shal
bear its own costs, including attorneys' fees. This provision i
separate and several and shall survive the merger of this Agreemen
into any judgment on this Agreement.
4.4.5 Remedies
The parties would not have entered into this Agreemer
without the limits on damages under this Agreement set fort
herein. Moreover, City would not have entered into this Agreemen if LPPI had not acknowledged that a reasonable relationship exist
between all exactions imposed and all consideration referenced i
this Agreement and the impact of the Project upon the community Accordingly, the parties agree that each of the parties hereto ma
pursue any remedy at law or equity available for the breach of an provision of this Agreement, subject to the following:
(a) City and all persons acting on behalf of the Cit shall not be liable in damages to LPPI, or to any successor i.
cbad\lego\da.6 -34-
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interest, or to any other person. LPPI covenants not to sue f
monetary damages or claim any monetary damages:
(i) For any breach of this Agreement or for a.
cause of action which arises out of this Agreement; or
(ii) For the taking, impairment or restriction 1 any property right or interest as the result of or arising under 1 pursuant to this Agreement, but excluding claims based up1
applicable obligations of the City acting in its government,
capacity and not as a party to this Agreement, and reserving t:
reserved rights and remedies described in Section 4.4.5(d); or
(iii) Arising out of or connected with ar
dispute, controversy or issue regarding the application c interpretation or effect of the provisions of this Agreement.
( iv) Provided, however, that LPPI reserves tl right to sue to enforce the obligation of the City to provide tl
City's Share of the 1-5/Cannon Road Costs, not to excec
$2,600,000, as provided in Section 3.2.2.2., by specif:
performance, writ of mandate or other appropriate remedy nc
including damages seeking amounts other than the unpaid portion c
the City's Share.
(b) LPPI shall not be liable in monetary damages t
City, or to any person acting on behalf of City, and City covenant
not to sue for damages or claim any monetary damages:
(i) For failure to construct and open LEGOLAN
CARLSBAD, or. any breach of this Agreement or for any cause c
action which arises out of this Agreement; or
(ii) Arising out of or connected with any dispute
controversy or issue regarding the application or interpretation o effect of the provisions of this Agreement;
(iii) Provided, however, that City reserves th
right to sue for:
(A) any sums payable by LPPI to City pursuan to Section 4.13 (Indemnity) which LPPI fail: to pay, including, without limitation, a1
litigation costs, including reasonablc
attorney's fees, incurred as the result o'
LPPI's failure to defend City, its officers
agents , attorneys, employees a nc
representatives which LPPI is obligated tr
defend pursuant to Section 4.13;
(B) any sums payable by LPPI to City pursuant
to the following Sections, which LPPI fails tc
cbad\lego\da.6 -35-
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pay when and as due pursuant to th
Agreement: (i) Section 3.1.4.8 (Quality Life Fee) ; Section 3.1.4.9 (Cost to Cle'
Parcel 18) ; Section 3.1.4.10 (Donation fl
failure to construct LEGOLAND CARLSBAD);
(C) any other sums that are specifical
required to be paid pursuant to th
Agreement.
(c) The parties acknowledge that, except as provided Section 4.4.5(a) (iv) and ,(b) (iii) , above, money damages ai remedies at law generally are inadequate and that specif
performance or writ of mandate is the exclusive remedy for tl
enforcement of this Agreement and should be available to a: parties for the following reasons:
(i) Money damages are unavailable against City,
against LPPI except as provided above;
(ii) Due to the size, nature and scope of t:
Project, it will not be practical or possible to restore Parcel to its preexisting condition once implementation of this Agreeme. has begun. After such implementation, LPPI may be foreclosed frl
other choices it may have had to utilize Parcel 18 and provide fc other benefits. LPPI has invested significant time and resoura and performed extensive planning and processing of the Project . agreeing to the terms of this Agreement, and will be investing evt
more significant time and resources in implementing the Project :
reliance upon those terms, and it will not be possible to determir the sum of money that would adequately compensate LPPI for su( efforts. By the same token, City will have invested substanti?
time and resources and will have permitted irremediable changes t
the land and increased demands on the surrounding infrastructul
and will have committed, and will continue to commit, t
development in reliance upon the commitment to provic
infrastructure and related improvements and other exactions to mec
the needs of the proposed development and to mitigate its effect
on the area and upon City and the public at large, all in relianr
upon the terms of this Agreement, and it would not be possible 7
determine a sum of money which would adequately compensate City fc
such undertakings. For this reason, the parties hereto agree thi if any party fails to carry out its obligations under t,h: Agreement, an injured party shall be entitled to non-damagt remedies, including the remedy of specific performance of th: Agreement.
(d) Except for judicial review and non-damages remedie5
including, the remedy of specific perfor.mance of this Agreement c writ of mandate to enforce this Agreement, LPPI, for itself and it
SUCCeSSOrS and assigns, hereby releases the City, its officer:
agents, attorneys, employees and representatives, from any and al
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claims, demands, actions or suits of any kind or nature arising o
of any liability, known or unknown, present or future, includin
but not limited to, any claim or liability, based or asserte pursuant to Article I, Section 19 of the California Constitutio the Fifth Amendment of the United States Constitution, or any 0th
law or ordinance which seeks to impose any other liability damage, whatsoever, upon the City because it entered into th Agreement or because of the terms of this Agreement. Provide however, that LPPI reserves all of its otherwise applicable righ
and remedies in the event of an actual condemnation, inver
condemnation or inappropriate taking, restriction or regulation
the City, which are rights and remedies LPPI otherwise has as property owner.
(e) Nothing in this Agreement shall be deemed to wai
or limit any rights and remedies that the parties would otherwi
have against the other in the absence of this Agreement wi
respect to injury caused by the negligence or willful misconduct
a party.
(f) Notwithstanding any provision to the contra
contained herein, in the event LPPI fails to construct or op LEGOLAND CARLSBAD to the public, the City shall not have any rig
to sue LPPI for damages or for specific performance , except
enforce LPPI's obligations pursuant to Section 3.1.4.9 (Cost
Clear Parcel 18) and Section 3.1.4.10 (Donation for failure
construct LEGOLAND CARLSBAD).
4.5 Notices
All notices or other communications required hereunder sha
be in writing and shall be personally delivered (including by mea
of professional messenger service), or sent by registered
certified mail, postage prepaid, return receipt required, or
electronic facsimile transmission followed by delivery of a "har
copy, and shall be deemed received on the date of receipt thereo Unless otherwise indicated in writing, such notice shall be se addressed as follows:
If to the City:
City Manager
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, California 92008
With a copy to:
City Attorney
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, California 92008
cbad\lego\da.6 -37-
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City Clerk city of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, California 92008
If to LPPI:
LPPI c/o LEG0 Foundation
Attention: General Counsel
Legal Department
DK-7190 Billund
Denmark
With a copy to:
LPPI
7040 Avenida Encinas
Carlsbad, California 92009
Attention: Mr. John Jakobsen
With a copy to:
Ellen B. Spellman, Esq. Brobeck, Phleger & Harrison
550 West C Street, Suite 1300
San Diego, California 92112
4.6 Termination
4.6.1 As to Parcel 18 and all of the rights of LPP
hereunder, and except as otherwise provided in this Agreement, thi Agreement shall be deemed terminated and of no further effect up0 the expiration of the Term of this Agreement as set forth i Section 4.2.1 or 4.2.2, as applicable.
4.6.2 Subject to the notice and cure provisions se forth in Section 4.4.2, the City shall have the right to terminat this Agreement as to Parcel 18 and the rights of LPPI hereunder, i
the event:
(a) LPPI defaults and fails to cure such defaul
within the respective curative period; or
(b) LPPI, or any assignee permitted by thi
Agreement, fails to complete construction of and open to the publi LEGOLAND CARLSBAD within the time provided in Section 4.2.1 subject to extensions permitted by Section 4.2.1 and subject to th provisions of Section 4.2.3; or
cbad\lego\da.6 -38-
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(c) After the Opening Date, LPPI shall cease
loperate LEGOLAND CARLSBAD on Parcel 18, as provided in subparagra
(b) of Section 3.1.4.9, subject to the exceptions in subparagra
(c) of Section 3.1.4.9 of this Agreement.
(d) LPPI shall be entitled to extend the ti
required for the Opening Date to occur, in the event of delay default by the City or Caltrans in constructing the I-S/Cannon Ro
Improvements; and
(e) Subject to the approval of the City accordance with Sections 3.1.2.3 or 3.2.7, LPPI shall be entitl
to extend the time required for the Opening Date to occur, in t
event of delay or default by CRC in providing necessa
infrastructure or paying applicable fees (except fees relating
Williamson Act Contract cancellation).
4.6.3 In addition, subject to the notice and cu
provisions set forth in Section 4.4.2, LPPI shall have the right terminate this Agreement in the event the City (a) defaults in i
obligation to issue permits for LEGOLAND CARLSBAD as provided this Agreement, or (b) the City fails to provide the City's Sha of I-5/Cannon Road Costs and LPPI elects not to cure such defaul or (in the event LPPI pays the City's Share) , the City fails
reimburse LPPI within a reasonable time.
4.6.4 Upon the termination of this Agreement pursua
to Section 4.6.2 or 4.6.3 , neither party shall have any furth
right or obligation with respect to Parcel 18 hereunder except wi
respect to any obligation to have been performed prior to su
termination or with respect to any default in the performance the provisions of this Agreement which has occurred prior to sus termination or with respect to any obligations which are spec
fically set forth as surviving this Agreement. The followi
obligations of LPPI shall survive the termination of th
Agreement, except termination of this Agreement pursuant to Sectil
4.6.3: (a) LPPIgs obligation to pay the Quality of Life Fee, any, for any year prior to such termination, pursuant to Sectit
3.1.4.8; (b) LPPI's obligation to clear Parcel 18 pursuant .
Section 3.1.4.9; (c) LPPI's obligation to pay the Donation to tl
City pursuant -to Section 3.1.4.10; and (d) the indemnity
accordance with Section 4.13, but only as to matters occurri: prior to termination.
4.7 Effectiveness Subject to Coastal Commission ADproval
This Agreement shall not become effective unless it
determined, in the Approval Ordinance, to be consistent with t:
City's local coastal program and receives IgCoastal Commissil
Approval." For purposes of this Agreement, ggCoastal Commissil
Approvalgt shall mean certification of the local coastal program 1
cbad\lego\da.6 -39-
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approval of this Agreement by the California Coastal Commission, a required by California Government Code Section 65869.
4.8 No Third Party Beneficiaries
This Agreement is made and entered into for the Sol
protection and benefit of the parties and their successors ar assigns. No other person shall have any right of action based upc
any provision of this Agreement.
4.9 Time of Essence
Time is of the essence for each provision of this Agreement c
which time is an element.
4.10 Modification, Amendment or Extension
Subject to any notice and hearing requirements imposed by lah this Agreement may be modified, amended and/or extended from tin
to time by mutual written consent of the City and LPPI in the sarr
manner as its adoption by ordinance as set forth in Government Cod
Sections 65867, 65867.5 and 65868 and the Approval Ordinance.
4.11 Operatins Memoranda
The Provisions Of this Agreement require a close degree c
cooperation between the City and LPPI and development of Parcel 1 hereunder may demonstrate that refinements and clarifications ar
appropriate with respect to the details of performance of the Cit
and LppI. If and when, from time to time, during the term of thi
Agreement, the city and LPPI agree that such clarifications ar
necessary 01: appropriate, the City and LPPI shall effectuate suc clarifications through Operating memoranda approved by the City an
Lpplt whicht after execution, shall be attached hereto as addend
and become a Part hereof, and may be further clarified from time t time as necessary with future approval by the City and ~pp~. N
such operating memoranda shall constitute an amendment to thi
Agreement requiring public notice or hearing. The city Manager, i
consultation with the City Attorney, shall be authorized to mak
the determination On behalf of the City whether . a requeste
clarification may be effectuated pursuant to this Section 4-11 o
whether the requested clarification is of such a character t
constitUte an amendment hereof pursuant to Section 4.10 above. Th
city Manager shall be authorized to execute any operating memorand hereunder on behalf of the city.
cbad\lego\da.6 -40-
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4.12 Conflicts of Law
4.12.1 Conflict with State or Federal Laws
In the event that state or federal laws or regulatio.
enacted after this Agreement has been entered into or the action c
inaction of any other affected governmental jurisdiction prevent (
preclude compliance with one or more provisions of this Agreemei
the parties shall (a) provide the other party with written notic
of such state or federal restriction, provide a copy of SUI
regulation or policy and a statement of conflict with tl
provisions of this Agreement, and (b) LPPI and the City sta
shall, within thirty (30) days, meet and confer in good faith in reasonable attempt to modify this Agreement, but only to tk minimum extent necessary to comply with such federal or state 12
or regulation. Thereafter, regardless of whether the parties rea( an agreement on the effect of such federal or state law c
regulation upon this Agreement, the matter shall be scheduled fc
hearings before the Council. Ten (10) days’ written notice of su(
hearing shall be given, pursuant to Government Code Sectic
65854.5. The Council, at such hearing, shall determine the exac
modification or suspension which shall be necessitated by su( federal or state law or regulation. LPPI, at the hearing, shal have the right to offer oral and written testimony. Ar
modification or suspension shall be taken by the affirmative vot
of not less than a majority of the authorized voting members of tk Council. Any suspension or modification may be subject to judicia review.
Or require Changes in plans, maps or permits approved by the Cit:
4.12.2 Cooperation in Securinq Permits
The City shall cooperate with LPPI in the securing of ar.
permits which may be required as a result of such modifications o
suspensions.
4.13 Indemnity
4.13.1 LPPI agrees to and shall defend, indemnify an
hold harmless City, its officers, agents, attorneys, employees an representatives from liability for damage or claims for damage fo personal injury including death and claims for property damag
which may arise from the acts of the indemnifying party or those o their contractors, subcontractors, agents, employees or othe persons acting on his behalf in connection with the Project.
4.13.2 This indemnification and hold-harmles agreement applies to all damages and claims for damages suffered o alleged to have been suffered by reason of the activities an1 development referred to in this Agreement, regardless of whether o
not City prepared, supplied or approved plans or specifications, o
cbad\lego\da.6 -4 1-
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both, for such activities or development, excepting damages Caws( by the negligence or willful misconduct of the City.
4.14 Waiver
No waiver of any provision of this Agreement shall 1
effective unless in writing and signed by a duly authorized reprc sentative of the party against whom enforcement of a waiver I
sought and referring expressly to this Section. No waiver of ar
right or remedy in respect of any occurrence or event shall 1
deemed a waiver of any right or remedy in respect of any otht
occurrence or event.
4.15 Intentionally Omitted
4.16 Successors and Assisns
Except as expressly provided to the contrary in th:
Agreement, the burdens and obligations of this Agreement shall 1
binding upon, and the benefits of this Agreement shall inure tc
all successors in interest to the parties to this Agreement and a:
successors in interest to Parcel 18 or any portion thereof or ar
interest therein, and shall be covenants running with the land.
4.17 Governins State Law
This Agreement shall be construed in accordance with the lab
of the State of California.
4.18 Constructive Notice and AcceDtance
Every person who now or hereafter owns or acquires any right
title or interest in or to any portion of Parcel 18 is and shall k
conclusively deemed to have consented and agreed to every provisic
contained herein, whether or not any reference to this Agreement i
contained in the instrument by which such person acquired 2
interest in Parcel 18.
4.19 Statement of Compliance
Within fifteen (15) working days following any writtc
request, in accordance with the notice provisions of thi
Agreement, which either party may make from time to time, the othc
party shall execute and deliver to the requesting party a statemer certifying that: (a) this Agreement is unmodified and in ful force and effect or, if there have been modifications hereto, thz
this Agreement is in full force and effect, as modified, ar
stating the date and nature of such modifications; (b) there are r current uncured defaults under this Agreement or specifying tl- dates and nature of any such defaults; and (c) any other inforn
ation reasonably requested. The failure to deliver such statemer
within such time shall be conclusive upon the party which fails t
cbad\lego\da.6 -42-
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deliver such statement that this Agreemqnt is in full force ai
effect without modification except as may be represented by tl requesting party and that there are no uncured defaults in tl performance of the requesting party. Said statement(s) shall be . the form reasonably satisfactory to the city, LPPI and to a]
purchaser, lender, title company, governmental agency, or othc
person reasonably requesting such statement(s) in connectiqn wi.
sale, use, development, construction, financing or marketing t Parcel 18. The City and LPPI, for their own respective uses, sha also be entitled to obtain a statement of compliance at ai
reasonable time.
4.20 Covenant of Good Faith and Fair Dealing
No party shall do anything which shall have the effect 1
harming or injuring the right of the other parties to receive tl benefits of this Agreement.
4.21 Covenant of CooDeration
LPPI and the City shall cooperate with and assist each othc in the performance of the provisions of this Agreement, includi~
assistance in obtaining permits for the development of Parcel
which may be required from public agencies other than the Cit:
LPPI reserves the right to challenge any such ordinance, measurc
moratorium or other limitation in a court of law if it becomc
necessary to protect the development rights vested in Parcel : pursuant to this Agreement.
4.22 Further Actions and Instruments
The parties to this Agreement shall cooperate with and provic
reasonable assistance to the other parties to the exte!
contemplated in the performance of all obligations under th: Agreement and the satisfaction of the conditions of the Agreemenl Upon the request of any party, the other parties shall prompt: execute, with acknowledgment or affidavit if reasonably requirec and file or record such required instruments and writings and tal
any actions as may be reasonably necessary under the terms of th: Agreement to carry out the intent and to fulfill the provisions ( this Agreement or to evidence or consummate the transactio! contemplated by this Agreement.
4.23 Section Headinqs
All Article and Section headings and subheadings are insert6 for convenience only and shall not affect any construction c interpretation of this Agreement.
cbad\lego\da.6 -43-
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4.24 Enforced Delay (Force Maieurel
(a) In addition to specific provisions of this Agreemend
performance by any party hereunder shall not be deemed to be default where delays or defaults are due to war, insurrectiol
strikes, walkouts, riots, floods, earthquakes, fires, casualtie!
acts of God, governmental restrictions imposed or mandated 1 governmental entities (but only as to delays or defaults on tl
part of LPPI) , enactment of conflicting state or federal laws '
regulations (but only if the party claiming delay complies at a
times with the provisions of this Agreement pertaining to su(
conflicting laws) , delays caused by the delay or failure by a]
entity other than the party claiming such delay to provic
financing for or construction of needed public facilities (
infrastructure as contemplated or required by this Agreemen1
delays due to the enforcement of environmental regulation:
litigation, or similar bases for excused performance.
(b) An extension of time for any such cause (a "Force Majeui
Delay") shall be for the period of the enforced delay and sha:
commence to run from the time of the commencement of the cause, .
notice by the party claiming such extension is sent to the otht
parties within thirty (30) days of knowledge of the commencement (
the cause. Notwithstanding the foregoing, none of the foregoil
events shall constitute a Force Majeure Delay unless and until tl
party claiming such delay and interference delivers to the othc
party written notice describing the event, its cause, when and hc
such party obtained knowledge, the date the event commenced, a1 the estimated delay resulting therefrom. Any party claiming Force Majeure Delay shall deliver such written notice within thiri
(30) days after it obtains actual knowledge of the event. Times c
performance under this Agreement may also be extended in writing k the City.
(c) Notwithstanding the first sentence of paragraph (b)
above, the following shall apply: (i) LPPI shall be entitled to
Force Majeure Delay for a period longer than the period of enforce
delay if the City Council determines that such longer period j
reasonably required; and (ii) LPPI shall be entitled to a Forc
Majeure Delay notwithstanding the fact that LPPI may not have give
timely notice to the City, if the City Council determines that SUC
Force Majeure Delay is reasonably required.
4.25 Emeraencv Circumstances
(a) If, as the result of specific facts, events c
circumstances, the City believes that a severe and immediat
emergency threat to the health or safety of the City or it
residents, meeting the requirements of subparagraph (b), belok
requires the modification, suspension or termination of thi
Agreement, the City will, after reasonable notice to LPPI (in ligl-
of all the circumstances), hold a hearing on such facts, events c
cbad\lego\da.6 -44-
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circumstances, at which LPPI shall have the right to address ti City Council. The City shall have the right to modify, suspend (
terminate this Agreement, in whole or in part, if, following su( hearing, the City Council determines that such modificatiol
suspension or termination is required in order to protect tl health and safety of the City and its residents.
(b) For purposes of this Section 4.25, an emergency sha:
meet each of the following criteria: (i) it must be based (
genuine health, safety and general welfare concerns (other th;
general growth management issues) ; (ii) it must arise out of
documented emergency situation, as declared by the President of tl United States, Governor of California, or the Mayor, City Counc. or City Manager of the City of Carlsbad; and (iii) based upon ii terms or its effect as applied, it does not apply exclusively (
primarily to Parcel 18.
4.26 BankruDtcv
The obligations of this Agreement shall not be dischargeab:
in bankruptcy.
4.27 Severabilitv
Invalidation of any of the provisions contained in th:
Agreement, or of the application thereof to any person, by judgmel or court order, shall in no way affect any of the other provisiol
hereof or the application thereof to any other person or circur stance, and the same shall remain in full force and effect, unle:
enforcement of this Agreement, as so invalidated, would be unret
sonable or inequitable under all the circumstances or wou:
frustrate the purposes of this Agreement and/or the rights ar obligations of the parties hereto.
4.28 Interpretation
The language in all parts of this Agreement shall in all Cas€
be construed simply, as a whole and in accordance with its fa]
meaning and not strictly for or against any party. The partic
hereto acknowledge and agree that this Agreement has been preparc
jointly by the parties and has been the subject of'arm's length at
careful negotiation over a considerable period of time, that eac party has independently reviewed this Agreement with legal counsel and that each party has the requisite experience and sophisticatic to understand, interpret and agree to the particular language c
the provisions hereof. Accordingly, in the event of an ambiguit
in or dispute regarding the interpretation of this Agreement, thj
Agreement shall not be interpreted or construed against the part
preparing it, and instead other rules of interpretation ar
construction shall be utilized.
cbad\lego\da.6 -4 5-
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l
4.29 Countemarts
This Agreement may be executed in duplicate counterpal orig.inals, each of which is deemed to be an original and all ( which when taken together shall constitute one and the sar
instrument.
4.30 Entire Aareement
This Agreement consists of forty-seven (47) pages, two (: pages of notarial acknowledgments and seven (7) exhibit
(designated I1Ag1 through llGql), which constitute the entil
understanding and agreement of the parties.
IN WITNESS WHEREOF, the parties have each executed th; Agreement on the date first above written.
CITY OF CARLSBAD
By :
Mayor
ATTEST : APPROVED AS TO FORM:
By : By :
City Clerk City Attorney
[SIGNATURES CONTINUE ON NEXT PAGE]
cbad\(ego\da.b -46-
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cbad\lego\da.6
0
LEG0 PARK PLANNING, SNCI,
a California corporation
By :
-47-
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STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO )
) ss.
On before me, , persbnall
appeared , personally known t me (or proved to me on the basis of satisfactory evidence) to k
the person( s) whose name (s) is/are subscribed to the withi
instrument and acknowledged to me that he/she/they executed tk
same in his/her/their authorized capacity(ies1 I and that k
his/her/their signature(s) on the instrument the person(s) I or tl- entity upon behalf of which the person(s) acted, executed tl-
instrument.
WITNESS my hand and official seal.
Signature
e 0
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On before me , , personal.:
appeared , personally known t
me (or proved to me on the basis of satisfactory evidence) to 1
the person(s) whose name(s) is/are subscribed to the with]
instrument and acknowledged to me that he/she/they executed tt
same in his/her/their authorized capacity(ies), and that 1:
his/her/their signature(s) on the instrument the person(s) , or tk
entity upon behalf of which the person(s) acted, executed tf.
instrument.
WITNESS my hand and official seal.
Signature
e e
EXHIBIT "A"
LEGAL DESCRIPTION
The Property subject to this Agreement is defined as:
Lot 18 of Carlsbad Tentative Tract Map CT 94-09, in the City of Carlsbad, San Diego County,
California, as approved by Planning Commission
Resolution No. 3851 adopted on December 6, 1995.
The Property is graphically depicted on Exhibit llB1f attached to
this Agreement. As of the date of recordation of this Agreement a final subdivision map has not been recorded for the Property. Prior to recordation of a final subdivision map based upon Carlsbad Tentative Tract Map CT 94-09 and covering Lot 18 thereo
("Final Map") , the Property shall be legally described by the metes-and-bounds description set forth below. After recordation of the Final Map, such metes-and-bounds description shall be automatically superseded and the Property shall thereafter be defined as Lot.18 as shown on the Final Map, without the need fo
any amendment of the Agreement.
METES-AND-BOUNDS DESCRIPTION
BEGINNING AT THE MOST EASTERLY CORNER OF LOT 1 OF MAP 13078,
RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUN'I
ON DEC. 28, 1993, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA; THENCE NORTH 63 DEGREES 50 MINUTES 20
SECONDS EAST, 101.19 FEET TO THE TRUE POINT OF BEGINNING OF THE
HEREIN DESCRIBED PARCEL; THENCE CONTINUING NORTH 63 DEGREES 50
MINUTES 20 SECONDS EAST, 9.09 FEET TO A POINT ON THE ARC OF A
740.00 FOOT TANGENT CURVE, CONCAVE TO THE SOUTHWEST; THENCE
NORTHWESTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL
ANGLE OF 14 DEGREES 23 MINUTES 12 SECONDS A DISTANCE OF 185.81
FEET; THENCE NORTH 57 DEGREES 25 MINUTES 56 SECONDS EAST, 60.00
FEET; THENCE NORTH 41 DEGREES 00 MINUTES 21 SECONDS WEST, 318.31
FEET TO THE BEGINNING OF A 1300.00 FOOT TANGENT CURVE, CONCAVE.?
THE EAST; THENCE NORTHERLY, ALONG THE ARC OF SAID CURVE, THROUGE
A CENTRAL ANGLE OF 41 DEGREES 01 MINUTES 55 SECONDS A DISTANCE C
930.99 FEET; THENCE NORTH 00 DEGREES 01 MINUTES 34 SECONDS EAST,
915.53 FEET; THENCE SOUTH 89 DEGREES 58 MINUTES 26 SECONDS EAST,
892.06 FEET TO THE BEGINNING OF A 415.00 FOOT TANGENT CURVE,
BPHSO\EBS\0148586.WP
01/17/96
Exhibit I'AlI
Page 1 of 2
* 0
CONCAVE TO THE SOUTH; THENCE EASTERLY, ALONG THE ARC OF SAID
CURVE, THROUGH A CENTRAL ANGLE OF 27 DEGREES 49 MINUTES 07
SECONDS A DISTANCE OF 201.49 FEET; THENCE SOUTH 62 DEGREES 11
MINUTES 27 SECONDS EAST, 457.46 FEET TO THE BEGINNING OF A 554.01 FOOT TANGENT CURVE, CONCAVE TO THE SOUTHWEST; THENCE
SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 44 DEGREES 14 MINUTES 57 SECONDS A DISTANCE OF 427.85
FEET; THENCE SOUTH 17 DEGREES 56 MINUTES 30 SECONDS EAST, 178.45
FEET TO THE BEGINNING OF A 318.00 FOOT TANGENT CURVE, CONCAVE TO
THE NORTHEAST; THENCE SOUTHEASTERLY, ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 70 DEGREES 10 MINUTES 25 SECONDS A
DISTANCE OF 389.47 FEET; THENCE SOUTH 88 DEGREES 06 MINUTES 55
SECONDS EAST, 295.90 FEET; THENCE SOUTH 01 DEGREES 53 MINUTES 05
SECONDS WEST, 234.42 FEET TO THE BEGINNING OF A 842.00 FOOT
TANGENT CURVE, CONCAVE TO THE EAST; THENCE SOUTHERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 17 DEGREES 06 MINUTES 29 SECONDS A DISTANCE OF 251.41 FEET; THENCE SOUTH 15 DEGREES 13 MINUTES 24 SECONDS EAST, 998.25 FEET TO THE BEGINNING OF A 25.00 FOOT TANGENT CURVE, CONCAVE TO THE NORTHWEST; THENCE SOUTHWESTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 84 DEGREES 55 MINUTES 17 SECONDS A DISTANCE OF 37.05
FEET; THENCE SOUTH 69 DEGREES 41 MINUTES 53 SECONDS WEST, 1114.2
FEET TO THE BEGINNING OF A 2187.00 FOOT TANGENT CURVE, CONCAVE T
THE NORTH; THENCE WESTERLY, ALONG THE ARC OF SAID CURVE, THROUGH
A CENTRAL ANGLE OF 18 DEGREES 04 MINUTES 54 SECONDS A DISTANCE 0
690.18 FEET; THENCE NORTH 84 DEGREES 55 MINUTES 38 SECONDS WEST,
120.36 FEET TO THE BEGINNING OF A 2175.00 FOOT NON-TANGENT CURVE
CONCAVE TO THE NORTH, A RADIAL TO SAID POINT BEARS SOUTH 00
DEGREES 55 MINUTES 35 SECONDS WEST; THENCE WESTERLY, ALONG THE
ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 01 DEGREES 13 MINUTES 28 SECONDS A DISTANCE OF 46.48 FEET; THENCE NORTH 87 DEGREES 50 MINUTES 57 SECONDS WEST, 239.31 FEET TO THE BEGINNING OF A 25.00 FOOT TANGENT CURVE, CONCAVE TO THE NORTHEAST; THENCE NORTHWESTERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 90 DEGREES 00 MINUTES 00 SECONDS A DISTANCE OF 39.27 FEET; THENCE NORTH 02 DEGREES 09 MINUTES 03 SECONDS EAST, 109.71
FEET TO THE BEGINNING OF A 609.00 FOOT TANGENT CURVE, CONCAVE TC
THE EAST; THENCE NORTHERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 11 DEGREES 36 MINUTES 42 SECONDS A DISTANCE C
123.42 FEET; THENCE NORTH 13 DEGREES 45 MINUTES 45 SECONDS EAST,
87.97 FEET TO THE BEGINNING OF A 731.00 FOOT TANGENT CURVE,
CONCAVE TO THE WEST; THENCE NORTHERLY, ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 31 DEGREES 50 MINUTES 41
SECONDS A DISTANCE OF 406.29 FEET; THENCE NORTH 63 DEGREES 50 MINUTES 20 SECONDS EAST, 9-09 FEET TO THE TRUE POINT OF
BEGINNING.
BPHSD\EBS\0148586,WP
01 I1 7/96
Exhibit I1Af1
Page 2 of 2
. ,. -,"" 4 EXHIB.IT B z
LOCATION MAP
0 0
EXklDlT l'c'
DESGRIPTIQN QF
PUBLlC IMPROVEMENTS
1. Cannon Roadit& ramp widening and signalization per the mitigation requiwmxXs
of Environmental fmpact Report 94-01.
2. Cannon Road widening to Major Arterial standards from Paseo del Norte to Car
Country Drive.
3, Cannon Road full improvements tu Major Arterial standards from Car Country Drive
to Lego Drive.
4. Traffic signal at Cannon Road and Leg0 Drive.
5. Leg0 ' Drive full improvements from Cstnnon Road through and including the roundabout as shown on the tentative map for Garlsbad Tract (GT) 94-09
6, Public utilities in Lego Drive south of the roundabout.
7. Fuji median improvements, sidewalks, landscaping and street lighting on the north side of Palomar Airport Road from Armada Drive to Hidden Valley Road.
8. Conversion of overhead electric to underground aIong Palomar Airport Road, from
Armada Drive to Hidden Valley Road.
9. Palomar Aiport RoaWHidden Valley Road intersection, including median
reanfiguration and new traffic signal.
IO. Hidden Valley Road full improvements from Paiomar Airport Road to Lot 18
northern property line as shown on the tentative map for CT 94-09.
1 f. Public utilities in Armada Drive from optional emergency access at Leg0 Drive io Palomar Alrport Road as shown on the tentative map for CT 94-09.
12. All water lines deemed nqxssary by the Water District Engineer to serve lot 18.
\
v '2 ?FqOR€b '04' XWJ JC WO3 @'cfFrS1883 d0 M,r9 12 :60 NOM 96
e
EXHIBIT "D"
MITIGATION MEASURES
The mitigation measures for the entire project described in the
Carlsbad Ranch Specific Plan Amendment, including LEGOLAND CARLSBAD, are set forth in the Mitigation Conditions and
Mitigation Monitoring Program included in the Final Program
Environmental Impact Report [SCH N0.95051001, EIR 94-01], certified by the City of Carlsbad pursuant to City Council Resolution No. 96-1 approved on January 9, 1996 in connection with the Specific Plan Amendment.
LPPI shall implement those mitigation measures set forth in the
Mitigation Conditions and Mitigation Monitoring Program which
apply to Parcel 18. At the time of approval of the Site
Development Plan for LEGOLAND CARLSBAD, the Mitigation Condition
and Mitigation Monitoring Program shall be revised to identify
those mitigation measures which apply to Parcel 18.
e
EXHIBIT "E"
DESCRIPTION OF MINIMUM COMPONENTS OF
LEGOWD CARLSBAD
LEGOLAND CARLSBAD shall include the following minimum componeni located on-site (i.e., within Parcel 18):
I. Private street improvements to LEG0 Drive to
provide access to the parking area; improvements to
facilitate access from Hidden Valley Road to the bus parking and employee parking area and for
emergency access purposes; and other private street
improvements as needed to facilitate internal
access for service and administration pu.rposes;
2. An entrance facility;
3. Landscaping and fencing around the perimeter of 'EGOLAND CMLSBAD in accordance with the requirements of the Site Development Plan, but not to exceed the parameters set forth in the Specific Plan;
4 Parking areas for guest parking, bus parking and
employee parking in accordance with the requirements of the Site Development Plan, but not to exceed the parameters set forth in the Specific Plan;
5. Parking lot landscaping in accordance with the City
landscape requirement of one (I) tree per four (4)
parking stalls;
6. A minimum of one (1) food service facility;
7. A minimum of one (I) gift shop;
8. A minimum of three (3) attractions (and, for purposes c
example, an attraction may consist of, but is not limit€ to, any one of the following: a I8Minilandt8 featurir
models constructed of Leg0 bricks; a Miniland boat ride
a Lego product building workshop or building area; c other attraction) ;
9. An educational area for visiting school children; and
~ Exhibit ItEf1 Page 1 of 2
0 0
10. Wet and dry utilities to service the Site, I
including but not limited to the following: underground dry utilities; reclaimed and potable water service lines; fire hydrants; irrigation; . sewer; NPDES facilities and all on-site drainage
facilities. Note: All fire service lines are
public and will require an easement and
construction to public water main standards.
Exhibit llE1l
Page 2 of 2
0 m
EXHIBIT "F"
DESCRIPTION OF DEDICATIONS
1
THIS EXHIBIT WILL BE PREPARED AND ATTACHED ,AT THE TIME
THE AMENDED SPECIFIC PLAN, THE DEVELOPMENT AGREEMENT AND
RELATED MATTERS ARE TAXEN TO CITY COUNCIL FOR FINAL APPROVAL
Exhibit ItFf1
Page 1 of 1
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EXHIBIT "G"
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Guaranty") is made and entered into by LEGO A/S, a Danish corporation ("Guarantor") to and for
the benefit of the CITY OF CARLSBAD, CALIFORNIA ("City"), and it
successors and assigns.
- RECITALS:
A. LEGO PARK PLANNING, INC., a California corporation (ItLPPIfl) and City have entered into that certain Development Agreement executed concurrently herewith by and between LPPI and City (referred to herein as the I'DAst). LPPI intends to construc
on that real property described in the DA as "Parcel 18" certain
improvements referred to in the DA as LEGOLAND CARLSBAD. All of
the terms and provisions of the DA are fully incorporated herein
by this reference as though fully set forth herein.
B. Pursuant to Section 3.1.4.9 of the DA, LPPI has an
obligation, under the circumstances set forth in said Section,
and subject to the exceptions set forth in said Section, to
remove or cause to be removed and cleared from Parcel 18, at no cost to the City, all construction materials and equipment (if
applicable), all LEGO model structures, theme park rides, attractions, signs, landscaping, buildings, structures and other improvements, except landscaping, buildings, structures and othe improvements which are determined by the City to be reasonably adaptable to alternate uses on Parcel 18, which determination
shall not be unreasonably withheld or delayed. Pursuant to
Section 3.1.4.10 of the DA, LPPI has an obligation under the
circumstances set forth in said Section, and subject to the
exceptions set forth in said Section, to make a monetary donatio
to the City in the amount of $500,000, in the event LPPI fails t
open LEGOLAND CARLSBAD to the public prior to the expiration of the Term of the DA, to compensate City for a portion of the administrative and design costs expended by the City in connection with the DA. LPPI's .obligations pursuant to Sections
3.1.4.9 and 3.1.4.10 shall be referred to hereinafter as the "Guaranteed Obligations".
C. Guarantor (by and through its affiliate entities) has
substantial financial interest in the business and affairs of
LPPI and it will receive substantial economic benefit should LPP be permitted to develop LEGOLAND CARLSBAD on Parcel 18 in the manner and in accordance with the terms of the DA. Guarantor acknowledges that this Guaranty is required by City as a
Exhibit rcGtl
Page 1 of 7
0 0
condition precedent and as an inducement to City to enter into
the DA, and carry out its obligations in accordance with the
terms of the DA.
NOW, THEREFORE, in consideration of the foregoing and othe good and valuable consideration given by City to Guarantor,.the
receipt and sufficiency of which is hereby acknowledged, and in
further consideration of and to induce City to enter into and
perform its obligations under the DA, Guarantor does hereby
irrevocably warrant, guarantee and agree as follows:
1. Guarantor acknowledges receipt of a copy of the DA anc all of the instruments described therein and/or attached theretc
2. If for any reason, other than the acts of City, LPPI should fail to perform the Guaranteed Obligations as set forth : Section 3.1.4.9 or Section 3.1.4.10 of the DA, then City at its option, and upon thirty (30) days written notice to Guarantor,
may call upon Guarantor and Guarantor shall assume each and all
of the outstanding Guaranteed Obligations of LPPI, and shall
promptly commence and diligently prosecute to completion all su(
Guaranteed Obligations in accordance with the terms of the DA.
3. Guarantor's performance of the Guaranteed Obligations shall be excused during periods of delay caused by City or by ti occurrence of events described in Section 4.24 of the DA.
4. This Guaranty is a present, absolute and continuing guaranty; the execution by City of the DA shall conclusively evidence the reliance by City upon this Guaranty and the
obligations and agreements of Guarantor as set forth herein.
5. This Guaranty shall terminate with respect to the Guaranteed Obligations upon the expiration of the Term of the DE!
pursuant to Section 4.2.1 or 4.2.2 of the DA, or termination of the DA by LPPI pursuant to Section 4.6.3 of the DA.
6. Guarantor waives (a) any right to require that any action be brought against LPPI or any other person for the
performance of the Guaranteed Obligations under the DA prior to
the enforcement of this Guaranty by the City, and (b) any right
to pursue any remedy in LPPI's power whatsoever; and if any righ
of action shall accrue to City by reason of the failure of LPPI to perform the Guaranteed Obligations required of LPPI pursuant to the DA then, unless such default shall be cured by the
Guarantor as aforesaid, City, at its election, may proceed
against: (A) Guarantor, together with LPPI (B) against
Guarantor, and LPPI, severally; or (C) the Guarantor only, in each case, without having commenced any action or having obtaine
Exhibit "Gtl
Page 2 of 7
0 0
I any judgment against LPPI and whether or not LPPI is a Party in
any such action.
7. The joint and several obligations of Guarantor shall
not be discharged, impaired or otherwise affected by (a) any sale, transfer, assignment, pledge, surrender, indulgence, forbearance, alteration, substitution, exchange, change in, amendment, revision, modification or other disposition of the D,
or Parcel 18, other than termination as described in Section 5 1
this Guaranty; (b) the acceptance by City of any security for 0: other guarantors with respect to the Guaranteed Obligations; or (c) any failure, negligence or omission on the part of City to enforce the terms of the DA; it being expressly understood and
agreed that the undertakings, liabilities and obligations of
Guarantor shall not be affected, discharged, impaired or varied
by any act, omission or circumstance whatsoever (whether or not
specifically enumerated herein) except the due and punctual
performance of the Guaranteed Obligations.
8. Guarantor hereby expressly waives (a) notice of
acceptance of this Guaranty;. (b) all notices to which Guarantor
might otherwise be entitled; (c) any defense arising by reason {
any disability of LPPI or by reason of the cessation from any cause whatsoever (except a defense available to LPPI under the
DA) of the liability of LPPI other than full performance of the Guaranteed Obligations; (d) diligence in enforcement and any an(
all formalities which might otherwise be legally required to charge the Guarantor with liability, except to the extent that specific acts or omissions of City could actually be raised by LPPI with respect to itself under the DA; and (e) all diligence
in collection or protection and all presentment, demand, protest
and notice of protest, notice of dishonor and notice of default,
except to the extent that specific acts or omissions of City
could actually be raised by LPPI with respect to itself under tk
DA .
9. In the event that Guarantor should fail to fully
perform the Guaranteed Obligations promptly as herein provided,
City shall have the following remedies:
(a) at its option and without any obligation so to dc
but upon prior thirty (30) days written notice to Guarantor,
proceed to perform and/or pay on behalf of Guarantor any and all
of the Guaranteed Obligations, unless Guarantor has commenced
performance and/or payment of the Guaranteed Obligations during
such 30-day period and is diligently prosecuting such performanc
to completion; and Guarantor shall, upon demand, pay to City all
such sums expended by City in such performance on behalf of
Guarantor; and
Exhibit IIGtl
Page 3 of 7
L 0 I)
(b) from time to time and without first requiring ful
performance of any of the Guaranteed Obligations by LPPI, to
require performance by Guarantor of all of the Guaranteed Obligations (or any part thereof) pursuant to the terms hereof,
by action at law or in equity or both, and further to collect ir
any such action compensation for all loss, cost, damage, injury
and expense sustained or incurred by City as a consequence of
such breach.
10. This Guaranty is a guaranty consisting of the
performance and payment of certain obligations contained and
provided for herein by Guarantor, and Guarantor shall be liable
for any claims by City against LPPI with respect to the Guaranteed Obligations.
11. As of the date of execution of this Guaranty, (a)
Guarantor warrants that it has full authority to execute this
Guaranty and comply with its terms, and (b) Guarantor declares t
and covenants with City and its successors and assigns, that
Guarantor knows of no defense whatsoever to any action, suit or
proceeding, at law or otherwise, that may be instituted on this
Guaranty.
12. No failure on the part of City to pursue any remedy
hereunder or under the DA shall constitute a waiver on its part
of the right to pursue said remedy on the basis of the same or a
subsequent breach.
13. Until the Guaranteed Obligations have been performed ir
full, Guarantor shall have no right of subrogation, and hereby waives any right to enforce any remedy that City now has or may hereafter have against LPPI.
14. This Guaranty shall be binding upon the Guarantor
jointly and severally, and its successors and assigns. Guarantor
shall have the right, without any further City consent, to assign
its obligations under this Guaranty to any affiliated LEG0
company or entity owned or controlled, directly or indirectly, by
majority shares or voting rights, by the Kirk Christiansen
family, provided such company or entity has assets in an amount
that is substantially equal to or greater than those of
Guarantor, and that, concurrently with such assignment, the ownership and control of LPPI is assigned directly or indirectly to such company or entity.
Exhibit "G"
Page 4 of 7
f 0 0
15. Each reference herein to I1City" shall be deemed to include the City of Carlsbad, and each of its successors and
assigns; and all of the provisions of this Guaranty shall run ir favor of said named City and its said successors and assigns.
16. This Guaranty shall be governed by and construed in accordance with the laws of the State of California.
17. In addition to any other rights or remedies, the
parties hereto may institute legal action to cure, correct or
remedy any default, to recover damages for any default, or to
obtain any other remedy consistent with the purpose of this
Guaranty. Such legal actions must be instituted in the Superior
Court of the County of San Diego, State of California, located i
the City of Vista, California.
18. In the event that any legal action is commenced by the Guarantor against City, service of process on City shall be made
by personal service upon the City Manager or Mayor of the City,
or in such other manner as may be provided by law. In the event such legal action is commenced by City against the Guarantor, service of process on the Guarantor shall be made by personal service upon an officer of Guarantor and shall be valid whether
made within or without the State of California, or in such manne:
as may be provided by law.
19. Time is of the essence hereof.
20. If any term, provision, covenant or condition hereof 0: any application thereof should be held by a court of competent jurisdiction to be invalid, void or unenforceable, all terms, provisions, covenants and conditions hereof, and all application:
thereof not held invalid, void or unenforceable, shall continue
in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
21. Guarantor hereby represents that the person executing this instrument on behalf of Guarantor has full authorization to
do so. Concurrently with the delivery of the executed Guaranty,
Guarantor shall deliver to City a true copy of a corporate resolution evidencing the authority of the person signing on behalf of Guarantor.
Exhibit llG1l
Page 5 of 7
I
c
e 0
I IN WITNESS WHEREOF, Guarantor has executed this Agreement i
of the date set forth below.
LEG0 A/S
Date: By :
Exhibit llG1l
Page G of 7
6
e
z
I)
I
The City Of Carlsbad hereby accepts this Guaranty Agreement
in accordance with the terms and conditions contained herein.
CITY OF CARLSBAD
By : Mayor
ATTEST : APPROVED AS TO FORM:
By : By :
City Clerk City Attorney
Exhibit 'lGt8
Page 7 of 7