HomeMy WebLinkAbout1996-01-09; City Council; 13464 Exhibit 6; Carlsbad Ranch Specific PlantS%hi bi+ m3 /3,*
ORDINANCE NO. NS346 i/4 /a
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA APPROVING A
DEVELOPMENTAGREEMENTBETWEENTHECITYOF
CARLSBAD AND LEG0 PARK PLANNIN G INC. (LPPI)
TO PROVIDE FOR THE CONSTRUCHON OF A
LEGOLAND PARK IN CARLSBAD
CASE NAME: CARLSBAD RANCH/LEGOLAND
CASE NO:
SPECIFIC PLAN AMENDMENT
DA 94-01
WHEREAS, the Planning Commission did on December 6,1995, hold a duly
noticed public hearing as prescribed by law to consider a Development Agreement, DA 94-
01; and
WHEREAS, the City Council of the City of Carlsbad, on the day of 9th
January , 1996, held a duly advertised public hearing to consider said
development Agreement, and at that time received the recommendations, objections,
protests, comments of all persons interested in the development agreement; and
WHEREAS, California Government Code Section 65867.5 and Carlsbad
Municipal Code Section 21.70.090 state that approval of a development agreement is a
legislative act which must be approved by ordinance; and
WHEREAS, this ordinance is adopted pursuant to Article 2.5 of the California
Government Code and Chapter 21.70 of the Carlsbad Municipal Code.
NOW, THEREFORE, City Council of the City of Carlsbad does ordain as
follows:
SECI’ION I: That the Development Agreement between the City of
Carlsbad and LEG0 Park Planning Inc., attached hereto marked Exhibit “N-l” and
incorporated by this reference (“LEG0 Development Agreement” or “Development
Agreement”) is approved. The Mayor is authorized and directed to execute said agreement
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SECTION II: That the findings of the Planning Commission as set forth
in Planning Commission Resolution No. 3854 constitute the Findings of the City Council.
SECTION III: Upon execution by all parties, the City Clerk is authorized
and directed to record the Development Agreement in the Office of the San Diego County
Recorder pursuant to Section 21.70.130 of the Carlsbad Municipal code.
EFFECTIVE DATE: This ordinance shall be effective thirty days after its
adoption, and the City Clerk shall certify to the adoption of this ordinance and cause it to
be published at least once in a newspaper of general circulation in the City of Carlsbad
within fifteen days after its adoption.
INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad
City Council on the January 9 1996, and thereafter 9th day of
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PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Carlsbad on the day of , 1996, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED AS TO FORM AND LEGALITY
RONALD R. BALL, City Attorney
CLAUDE A. LEWIS, Mayor
ATTEST
.
ALETHA L. RAUTENKRANZ, City Clerk
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EXHBIT “WI’
RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, California 92008-1989
Attention: City Attorney FREE RECORDING GOVERNMENT CODE
SECTION 6103
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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2 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 4
3
DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF CARLSBAD mD LEG0 PARK PLANNING, INC.
Pace
RECITALS OF PREMISES, PURPOSE AND INTENT . . . . . . . . . 1
1.1 Code Authorization ................. 1 1.2 Reasons for Agreement ................ 1 1.3 Interest of LPPI .................. 2 1.4 The Project ..................... 3 1.5 Project Approvals .................. 3 1.6 Project is Private Undertaking ........... 3
2.1 Applicable Rules .................. 4 2.2 City ........................ . 2.3 Coastal Commission Approval ............. 4 2.4 Code ........................ . 2.5 Commencement of Construction ............ 4 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 ................... 5 2.11 General Plan .................... 5 2.12 Hazardous Substances ................ 5 2.13LPPI ........................ . 2.14 LEGOLAND CARLSBAD .................. 5 2.15 Mortgagee ...................... 5 2.16 Opening Date .................... 5 2.17 Parcel 18 ...................... 5 2.18 Project ....................... 5 2.19 Project Approvals .................. 5 2.20 Specific Plan .................... 6 2.21 Specific Plan Amendment ............... 6 2.22Term ........................ .
DEVELOPMENT OF PARCEL 18 ................. 6 3.1 Land Uses, Approvals and Covenants ......... 6 3.1.1 Land Uses, Densities and Intensities ... 6 3.1.1.1 Right to Develop Parcel 18 ...... 6 3.1.1.2 Certain Changes Prohibited Without Consent of LPPI ........... 6 3.1.1.3 Rights are Vested .......... 7
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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 . . . . 3.1.2 Subsequent Discretionary Approvals: Site 3.1.2.1
3.1.2.2 3.1.2.3 3.1.2.4 3.1.2.5 3.1.2.6 3.1.2.7
3.1.2.8
3.1.2.9
3.1.2.10
3.1.2.11 3.1.2.12
Development Plan Review . . . . . . Site Development Plan Approval Required . . . . . . . . . . . . . . Responsibility of LPPI . . . . . . . Responsibility for Paying Fees . . . Approval of Site Development Plans . Standard of Review . . . . . . . . . Preemption . . . . . . . . . . . . . Reservation of Right to Impose Certain Conditions . . . . Effect of Site Development Plan Approval for Parcel 18 . . . . . . . Construction to be Consistent with Approved Site Development Plans . . . . . . . . . . . . . . . . Revisions Required by Other Governmental Approvals . . . . . . . Revisions Requested by LPPI . . . . Growth Management . . . . . . . . . 3.1.3 General Conditions Precedent to 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:
3.1.4.6 Reservation of Sufficient Capacity . 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 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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3.1.6 Intentionally Omitted .......... 20 3.2 Public Improvements and Utilities ......... 20
3.2.1 CFD # 1 Taxes .............. 20
3.2.2 City's Commitment to Assist in Financing I-S/Cannon Road Interchange ....... 20 3.2.2.1 Method of Financing ........ 20
3.2.2.2 City's Monetary Commitment ..... 21
3.2.2.3 Agreement with Caltrans .... 2 . 21
3.2.2.4 Maintenance of I-5/Cannon Road Interchange Landscaping ...... 21
3.2.3 EIR Mitigation Measures ......... 22
3.2.4 Dedications ............... 22
3.2.5 Improvement Security/Insurance ..... 22
3.2.6 Further Land Use Actions ........ 23
3.2.7 Financing of Public Improvements .... 23
3.3 Development Impact Fees .............. 24 3.3.1 Applicable Fees and Assessments ..... 24
3.3.2 City Reserves Right to Increase Fees . . 25
3.3.3 Fee Credits ............... 25 3.4 Mortgagee Protection ............... 25 3.5 Construction Reports and Scheduling ........ 26
3.6 Insurance ..................... 27 3.6.1 Maintenance of Insurance ........ 27
3.6.2 Workers' Compensation Insurance ..... 27
3.6.3 Liability Insurance ........... 27
3.6.4 Other Insurance Provisions ....... 28
4 GENERAL PROVISIONS ................... 28 4.1 Approval Procedure; Effective Date; Recordation . . 28
4.2 Term ....................... 28
4.2.1 Prior to Opening Date .......... 29
4.2.2 Following Opening Date ......... 29
4.2.3 Extensions of Time to Perform ...... 29
4.3 Cooperation and Implementation .......... 30
4.4 Enforceability .................. 31
4.4.1 Default ................. 31
4.4.2 Procedure Regarding Defaults ...... 31
4.4.3 Annual Review .............. 33
4.4.3.1 Responsibilities of the Parties . . 33
4.4.3.2 Opportunity to be Heard ...... 33
4.4.3.3 Information to be Provided LPPI . . 33
4.4.4 Institution of Legal Action ....... 34
4.4.5 Remedies ................ 34
4.5 Notices ...................... 37 4.6 Termination .................... 38
4.7 Effectiveness Subject to Coastal Commission Approval ..................... 39 4.8 No Third Party Beneficiaries ........... 40 4.9 Time of Essence .................. 40 4.10 Modification, Amendment or Extension ....... 40 4.11 Operating Memoranda ................ 40 4.12 Conflicts of Law ................. 41
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4.13
4.14
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4.19
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4.30
4.12.1 Conflict with State or Federal Laws .............. 41
4.12.2 Cooperation in Securing Permits ..... 41 Indemnity ..................... 41 Waiver ...................... 42 Intentionally Omitted ............... 42 Successors and Assigns .............. 42 Governing State Law ................ 42 Constructive Notice and Acceptance ........ 42 Statement of Compliance .............. 42 Covenant of Good Faith and Fair Dealing ...... 43 Covenant of Cooperation .............. 43 Further Actions and Instruments .......... 43 Section Headings ................. 43 Enforced Delay (Force Majeure) .......... 44 Emergency Circumstances .............. 44 Bankruptcy .................... 45 Severability ................... 45 Interpretation .................. 45 Counterparts ................... 45 Entire Agreement ................. 46
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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 LEGOLAND 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 LEG0 PARK PLANNING, INC.
THIS AGREEMENT is entered into by and between the CITY OF CARLSBAD, a municipal corporation, and LEG0 PARK PLANNING, INC., a California corporation (ltLPPI").
1. RECITALS OF PREMISES, PURPOSE AND INTENT
1.1 Code Authorization
To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted the Development Agreement Act which authorizes any city to enter into binding development agreements establishing certain development rights in real property with persons having legal or equitable interests in such property. Section 65864 of the Development Agreement Act expressly provides, in part, as follows:
The Legislature finds and declares that:
(a) The lack of certainty inthe approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer and discourage investment in and a commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public.
(b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval will strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic cost of development.
1.2 Reasons for Aareement
1.2.1 The parties hereto have determined that the Project (as defined below) is a development for which a development agreement is appropriate. Development of the Project in accordance with a development agreement will provide for the orderly development of Parcel 18 (defined below) in accordance with the objectives set forth in the General Plan and the Specific Plan. Moreover, a development agreement for the Project will eliminate uncertainty in planning for and securing orderly development of the Project, ensure attainment of the maximum efficient utilization of
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resources within the City at the least economic cost to its citizens, and achieve the provision of public services, public uses, urban infrastructure and other goals and purposes for which the Development Agreement Act was enacted, all in the promotion of the health, safety and general welfare of the City of Carlsbad and its residents. In exchange for these and other benefits to the City, LPPI and its successors and assigns will receive the assurance that they may develop and use the Project during the term of this Agreement, subject to the terms and conditions herein contained.
1.2.2 This Agreement does not (1) grant density or intensity in excess of that otherj:ise established in the Project Approvals, (2) supersede, nullify or amend any condition imposed in the Project Approvals, (3) guarantee to LPPI or any other party any profits from the Project, or (4) amend the General Plan.
1.2.3 City, as a result of the development of Parcel 18 in accordance with the Specific Plan and this Agreement, will‘ receive substantial benefits. Such benefits will include, among others, the following: the development and operation of LEGOLAND CARLSBAD by LPPI; the Quality of Life Fee, as described in Section 3.1.4.8; installation and construction of infrastructure improvements in advance of the time such improvements would -otherwise be installed or constructed; additional employment opportunities; increased property tax and sales tax.
1.3 Interest of LPPI
LPPI represents that as of the date of execution of this Agreement, LPPI has an equitable interest in Parcel 18, consisting of a valid and binding option to acquire the fee title to Parcel 18 from its current owner, and subject to the satisfaction of all applicable conditions precedent, intends to exercise its option and acquire fee title prior to the end of 1997; and that there are no terms or conditions precedent to the exercise of such option which are inconsistent with this Agreement. Concurrently with the execution of this Agreement, LPPI shall deliver to the City a title report demonstrating to the satisfa+ &&ion of the City that LPPI's option is of record, and shoijing only those encumbrances which will be removed prior to or concurrently i;ith the acquisition of title by LPPI, or which the City reasonably approves.
LPPI represents as follows: LPPI has been established by LEG0 A/S, a Danish corporation, for the purpose of developing LEGOLAND Carlsbad. LPPI is wholly owned by LEG0 A/S. LPPI's activities are managed, directed, controlied and authorized by LEGO A/S. LEG0 A/S has provided, and will continue tc proLride cr cause its successor Guarantor to provide, the funding necessary for LPPI to perform its obligations under this Agreement.
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1.4 The Proiect
The Project consists of the development of Parcel 18 within the limitations of and as described in the Specific Plan and this Agreement.
1.5 Project Apnrovals
1.5.1 By Council Resolution No. , the City Council certified, after making appropriate findings, the Environmental Impact Report for the Project dated 1995, under the provisions of the California Environmental Qualit; Act [California Public Resources Code Section 21000, et sea.1 (the "EIR").
1.5.2 City has undertaken the necessary proceedings, has found and determined that this Agreement is consistent with the General Plan and the Specific Plan and has adopted Ordinance No. approving this Agreement which ordinance became effective on 1996 (the "Approval Ordinance"). In the event of any conflict between the provisions of the Specific Plan and the provisions of this Agreement, the provisions of this Agreement shall prevail.
1.6 Proiect is Private Undertaking
1.6.1 It is specifically understood and agreed to by and between the parties hereto that: (1) the subject development is a private development; (2) except for the obligations of the City described herein, the City has no interest or responsibilities for or duty to third parties concerning any public improvement 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 relationship 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 City neither undertakes nor assumes nor will have any responsibility or 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 implementing public purpose of this Agreement, and neither LPPI (except for the
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purposes set forth in this Agreement) nor any third party is entitled to rely thereon. Unless specifically provided for in this Agreement, the City shall not be responsible for any of the work of construction, rehabilitation, improvement or development on Parcel 18 or in connection with the Project. Nothing contained in this Agreement shall be deemed to waive or modify any otherwise applicable obligations the City, acting in its governmental capacity and not as a party to this Agreement, may have to LPPI or any other party, under and in accordance with all applicable laws.
2. DEFINITIONS
For purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
2.1 "Applicable Rules" means the ordinances, resolutions, rules, regulations, requirements and official policies of City in 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 I(Citytl means the City of Carlsbad, California.
2.3 ttCoastal 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 "Codel* means the City of Carlsbad Municipal Code.
2.5 'tCommencement of Construction" 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 'tCRCt' shall mean the Carlsbad Ranch Company or other master developer of the Carlsbad Ranch Specific Plan (not a party to this Agreement).
2.7 "Development Agreement Act" means Sections 65864, et sea- I of the California Government Code.
2.8 "Development Agreement Ordinance" means City Ordinance No. NS-302, adopted by the Carlsbad City Council February 14, 1995.
2.9 "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, including, without limitation: application fees; permit processing fees; inspection fees; utility capacity fees; service or connection fees; development impact or major facilities fees; park fees; flood control fees; agricultural conversion fees; Williamson Act Contract cancellation fees; environmental impact mitigation fees; affordable housing fees; and any similar governmental fees, charges and exactions required for the development of the Project.
2.10 "Effective Date" means the date described in Section 4.1(d) of this Agreement.
2.11 "General Plan" means the General Plan of City.
2.12 "Hazardous Substances" as used in this Agreement means those substances listed in Division 4, Chapter 30, Article 9 of Title 22, California Administrative Code, or those which meet the toxicity, reactivity, corrosivity or flammability criteria of Article 11 of the above Code, or any other contaminants, pollu- tants, toxic substances or related materials which pose a hazard to 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 with 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 "Mortgagee" 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 "E"; 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 "B", legally described as set forth in Exhibit "A" attached to this Agreement.
2.18 '*Project" means the proposed development of Parcel 18 pursuant to this Agreement.
2.19 "Project 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 Parcel 18 and Amendment to the Preserve Boundaries; Master Tentative Map; Non-Residential Planned Unit Development; Hillside Development Permit; Development Agreement; and also including action by the City Council approving the Environmental Impact Report for the Project and making findings in connection therewith; amendments to any of the foregoing approved by the City which are in compliance with this Agreement; and all conditions of approval adopted by the City Council in connection with any of the foregoing.
2.20 *IS ecific Plan*' means the Carlsbad Ranch Specific Plan, P as amended by the Specific Plan Amendment.
2.21 *'Specific Plan Amendmenttt means the amendment to the Specific Plan approved by City in conjunction with this Agreement, to allow for the development of the Project.
2.22 tlTerm't means the term of this Agreement, as provided in Section 4.2 of this Agreement.
3. DEVELOPMENT OF PARCEL 18
3.1 Land Use Annrovals and Covenants
3.1.1 Land Uses, Densities and Intensities
3.1.1.1 Right to Develon Parcel 18. City agrees that during the Term of this Agreement, LPPI and its successors and assigns approved by City in accordance with Section 3.1.5 hereof, shall have the right to develop and use Parcel 18 in accordance with the land uses, densities and intensities, the zoning, and the development standards, conditions and improvement requirements specified in the Specific Plan, the other Project Approvals and the Applicable Rules (collectively, *'Vested Rules"), subject to Site Development Plan review in accordance with Section 3.1.2 hereof. The Vested Rules shall include the standards and requirements for public facilities, parking, open space, setbacks, landscaping and signage set forth in the Specific Plan.
3.1.1.2 CertainChanaesProhibitedWithout 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 amended 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 new or amended ordinance, resolution, rule, regulation, requirement or official policy that materially, adversely affects the timing or phasing of construction or development, or which limits the availability of utilities or other infrastructure for Parcel 18.
3.1.1.3 Riahts are Vested. Unless amended or terminated in the manner specified in this Agreement (and subject to the provisions of this Agreement), LPPI shall have the rights and benefits afforded by this Agreement and this Agreement shall be enforceable by LPPI and the City notwithstanding any growth control measure or any development moratorium adopted after the Effective Date, or any change in the applicable general or specific plans, zoning, subdivision or building regulations adopted by the City which alter or amend the Vested Rules or the adoption of any new or amended 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 in accordance with the Vested Rules. This Section shall be construed to prohibit the City from applying to Parcel 18 any development moratorium that is adopted specifically to prohibit the construction of the Project, or as an interim measure pending contemplated general plan, specific plan or zoning changes, or as a general growth control management measure without other bona fide reasons relating to unforeseeable emergency situations (as described in Section 3.1.1.6, below).
3.1.1.4 City's Reservation of Risht to Make Certain Changes. Notwithstanding any provision to the contrary contained herein, the City expressly reserves the right to modify zoning and design and development standards, provided such modifications do not prevent or materially, adversely affect development, construction or operation of Parcel 18 in accordance with the Vested Rules, and provided further that such modifications are not inconsistent with the Specific Plan.
3.1.1.5 Preemption. Notwithstandinganyprovision to the contrary contained herein, the City expressly reserves the right to modify any of the Specific Plan, the Applicable Rules and 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 Right to Aool~ Certain Development 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,
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safety and general welfare concerns (other than general growth management issues); (b) which arises out of a documented emergency situation, as declared by the President of the United States, Governor of California, or the Mayor or City Council of the City of Carlsbad; and (c) based upon its terms or its effect as applied, does not apply exclusively or primarily to Parcel 18.
3.1.1.7 Other Governmental Approvals. The parties do not contemplate that development of the Project pursuant to the Specific Plan and this Agreement shall be subject to the approval of any other governmental agencies, except for Coastal Commission Approval, and approval of the Caltrans Share of the I-5/Cannon Road costs. Provided, however, that to the extent the City assumes responsibility for processing the Coastal Development Permit, and subject to the City's obligations under the State Coastal Act and regulations promulgated pursuant thereto, the City's processing of such Permit shall be subject to the Applicable Rules, the Project Approvals and this Agreement.
3.1.2 Subseauent Discretionary Annrovals: Site Development Plan Review
3.1.2.1 Site Development Plan Aporoval Required. LPPI shall be required to obtain the approval by the City of a Site Development Plan for the development of Parcel 18 and the issuance of all permits required therefor. The parties acknowledge and agree that the approval of a Site Development Plan and issuance of permits shall be subject to the Applicable Rules, the Project Approvals, this Agreement and any applicable laws in effect at the time that are not expressly superseded by this Agreement.
3.1.2.2 Responsibility of LPPI. The obtaining of Site Development Plan approval and all necessary permits for the development of Parcel 18, and complying with the conditions thereof, shall be the sole responsibility of LPPI or its successors and assigns approved by the City in accordance with this Agreement.
3.1.2.3 Responsibility for Paving Fees. LPPI shall be responsible for paying when due all Development Impact Fees in connection with the approval of a Site Development Plan and issuance of permits for Parcel 18. LPPI represents that it has a 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 of LEGOLAND CARLSBAD, unless and until all applicable Development Impact Fees are paid to the City to the extent such fees are due and payable prior to the time such construction is to commence, and all other applicable requirements are satisfied.
3.1.2.4 Aporoval of Site Development Plans. The City shall promptly review and approve, approve with conditions, or disapprove a proposed Site Development Plan submitted pursuant to 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 be disapproved by the City. The process for approving a Site Development Plan shall be as set forth in the Applicable Rules, as modified or supplemented by the Specific Plan. During the preparation of all drawings and plans, the City and LPPI shall hold regular progress meetings to coordinate the preparation of, submission to, and review of Site Development Plans and related documents by the City. The City and LPPI shall communicate and consult informally as frequently as is necessary to insure that the 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. Notwithstandinganyprovision 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 with Section 3.1.1.6 hereof.
3.1.2.7 Reservation of Right 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, adversely affect development, construction or operation of Parcel 18 in accordance with the Vested Rules; and (b) to impose reasonable conditions deemed necessary by the City to mitigate environmental impacts identified in a subsequent or supplemental environmental impact report or negative declaration prepared in connection with a proposed Site Development Plan, which impacts could not reasonably have been foreseen at the time of approval of this Agreement or are otherwise required to be mitigated in accordance with State law in effect at the time of the Site Development Plan review.
3.1.2.8 Effect of Site Development Plan Aoproval for Parcel 18. Following approval of a Site Development Plan for Parcel 18, the City shall not subsequently disapprove the permits necessary for the development of Parcel 18 in accordance with such Site Development Plan, if the final plans and specifications are consistent with and developed as a logical evolution of the approved Site Development Plan, if LPPI satisfies all applicable conditions for such permit as set forth in the Specific Plan, the Applicable Rules, the Project Approvals, this Agreement and the approved Site Development Plan, and if LPPI is not in default of this Agreement as to Parcel 18. Notwithstanding Municipal Code Section 21.06.160, approval of a Site Development Plan pursuant to this Agreement shall not expire unless a building permit is not issued within three (3) years, or such longer time if specified in the Project Approvals or the approved Site Development Plan.
3.1.2.9 Construction to be Consistent with Aooroved Site Development Plans. LPPI shall construct or cause to 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 Reauired bv Other Governmental Aoprovals. 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 Reauested bv 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 Management. LPPI acknowledgesand agrees that the development of LEGOLAND CARLSBAD shall be subject to Chapter 21.90 of the City Municipal Code (the "Growth Management OrdinanceI'), and agrees to comply with the Growth Management Ordinance and pay its fair share of all growth management fees and assessments. The City believes, based upon the comprehensive level of facility planning performed in conjunction with the review of the project, that during the term of this Agreement, no growth management compliance issues will arise. However, in the event the City determines that in conjunction with any proposed Site Development Plan, amendment to an approved Site Development Plan or application for a building permit submitted by LPPI for Parcel 18 (hereinafter referred to as a "Submittall'), any of the growth management performance standards are not being met, the City agrees, irrespective of such failure of performance standards, to accept and process the Submittal in a reasonably timely manner, provided LPPI pays its fair share of the required improvement or facilities management fee or other fee or assessment as reasonably determined by the City in order to guarantee compliance with the performance standards. Said fee or assessment shall be paid at the time the building permit is issued for the Submittal. The parties agree that this Agreement does not impose upon LPPI any growth management obligations which it would not otherwise have in the absence of this Agreement.
3.1.3 General Conditions Precedent to Construction
As conditions precedent to the Commencement of Construction, LPPI shall: (a) provide evidence reasonably acceptable to the City that it has -obtained fee title to Parcel 18; (b) obtain City approval of a Site Development Plan for Parcel 18;
(cl obtain City approval of a subdivision map, to the extent required for the development of Parcel 18; (d) satisfy or cause to be satisfied all conditions set forth in the Project Approvals which are to be satisfied, by their terms, on or prior to the Commencement of Construction, and which are conditions relating to the development of Parcel 18, or demonstrate to the satisfaction of the City that such conditions have been satisfied (other than the satisfaction of any condition which is the obligation of the City to perform), or that bonds have been provided as assurance of completion, if otherwise permitted in accordance with the City's Tentative Map or other applicable procedure; and (e) not be in default of any provision of this Agreement which, if not cured, would permit the City to terminate this Agreement.
3.1.3.1 Hazardous Substances Prior to the Commencement of Construction, LPPI shall perform or ensure that CRC has performed all acts necessary to cause Parcel 18 to be free from Hazardous Substances in excess of any then-applicable regulatory cleanup levels and shall submit evidence satisfactory to the City demonstrating that Parcel 18 is free from such Hazardous Substances.
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At all times after LPPI's acquisition of fee title to Parcel 18, LPPI shall defend, indemnify and hold harmless the City, and its officers, employees, attorneys and consultants, for any and all claims, judgments, liability, costs, fines, penalties, charges and/or claims of any kind whatsoever relating to the presence and/or cleanup of Hazardous Substances on, in or under Parcel 18 or any portion thereof; provided that provisions of this Section shall not be construed as a waiver, to any extent, of LPPI's rights and remedies against any parties responsible for the same.
3.1.3.2 Williamson Act Contract Cancellation. To the extent legally permissible, the City, as administrator of agricultural preserves and contracts pursuant to the Williamson Act (Sections 51200 et sea. of the Government Code), agrees to discharge its responsibilities in a manner consistent with the approved land uses contained in, and the timely implementation of, the Specific Plan.
Notwithstanding any provision of this Agreement to the contrary, LPPI's obligation to open LEGOLAND CARLSBAD within the time provided in Section 4.2 hereof shall be extended to the extent reasonably required as a result of any delay caused by any portion of Parcel 18 not being made available to LPPI for Commencement of Construction due to non-cancellation of the Williamson Act Contract by the City Council (and such non- cancellation results from circumstances beyond the control of 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 Right to develoo 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 on the Opening Date, LEGOLAND CARLSBAD will include the minimum 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 shall have the right to make modifications to Parcel ("ModificationsIt), including expansion of LEGOLAND CARLSBAD Ai Parcel 18, changes or additions to and/or replacement of existing buildings, rides, attractions, landscaping, parking facilities and other improvements; provided, that such Modifications are in conformance with the Site Development Plan approved by the City, as it may be amended from time to time. Certain amendments of the Site Development Plan shall be approved administratively by the Planning Director, as set forth in the Specific Plan or as 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 any substantial amendments of a controversial nature to the City Council as described in the Specific Plan, and (b) LPPI's right to appeal any Planning Commission decision to the City Council pursuant to Section 21.06 of the Carlsbad Municipal Code. The City's review of each amendment shall be subject to all limitations to which the City's review of the initial Site Development Plan is subject under the terms of this Agreement.
3.1.4.5 City-Provided Utilities: Reservation of Sufficient Capacity. To the extent that it is within the control of the City, the City shall use its best efforts to ensure that there shall be sufficient capacity, facilities and services with respect to City-provided utilities (such as potable and reclaimed water, sewer and drainage) to complete construction and open to the public LEGOLAND CARLSBAD, and for any Modification that is within 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 City 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 the 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 to 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.
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3.1.4.6 City-Provided Utilities: Nondiscriminatory Rates and Provision of Service. The City agrees that rates and charges for City-provided utilities (such as potable and reclaimed water, sewer and drainage) for LEGOLAND CARLSBAD shall not be set or imposed in a discriminatory manner, but shall be those rates and charges that are or would be generally applicable to any user of a comparable quantity and quality of the utility use in the City of Carlsbad (i.e, any other entity whose use or consumption of the utility is comparable to that of LPPI), and that the City shall not discriminate against LEGOLAND CARLSBAD in the provision of any City-provided utilities (such as potable and reclaimed water, sewer and drainage).
3.1.4.7 Ooerations of LEGOLAND. LPPI agrees to operate and maintain Parcel 18 exclusively as LEGOLAND CARLSBAD, substantially in accordance with the general description set forth in subsection (a) below, subject to the operating conditions described in subsection (b) and in conformance with the hours of operation described in subsection (c).
(a) General Description. LEGOLAND CARLSBAD means a facility which provides educational and entertainment activities and experiences in a park-like setting for children in the 2-13 age croup and their families. LEGOLAND CARLSBAD will include, but is not limited to, the
(1)
(2)
(3)
(4)
(5)
(6)
following components:
Active areas. including entertaining attractions, educational activities, and inter-active experiences such as rides and LEG0 building workshop areas;
Passive areas with landscaping, pedestrian trails and garden features;
Retail and restaurant facilities;
Guest services and facilities;
Vehicle parking areas, vehicle circulation facilities and a pedestrian trail system; and
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) Operatina Conditions. LPPI agrees to operate LEGOLAND CARLSBAD subject to the following conditions:
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(1)
(2)
(3)
(4)
The Park will be operated under the LEG0 trade name, will feature LEG0 brand products, and will be comparable in quality and similar (but not necessarily identical) to the Legoland Parks located in Billund, Denmark and Windsor, England;
Attractions, educational and entertainment activities will be directed primarily at children aged 2 to 13 and their families;
High-speed thrill rides directed primarily at adults or teenagers will be prohibited; and
Educational components shall be incorporated into the Park.
(c) Hours of Ooeration. It is LPPI's intent to operate LEGOLAND CARLSBAD on a year-round basis, and LPPI anticipates that the annual number of operating days will be approximately 300. LPPI shall have the right to close operation of LEGOLAND CARLSBAD from time to time, based upon seasonal attendance, economic feasibility of operation and other factors. However, LPPI shall operate LEGOLAND CARLSBAD for a minimum of 250 days per Operating Year (defined in Section 3.1.4.8, below), subject to closures for purposes of maintenance, construction, remodeling or reconstruction or due to force majeure events outside the reasonable control of LPPI.
3.1.4.8 Quality of Life Fee.
(a) As consideration for the vested rights provided in this Agreement, LPPI agrees that in the event annual attendance during the Term of this Agreement exceeds 2.2 million visitors, LPPI shall contribute to the City an amount, calculated as set forth in subparagraph (b) of this Section 3.1.4.8, to be used by the City as described in subparagraph (d) of this Section 3.1.4.8. For purposes of this Section 3.1.4.8, the Term of this Agreement shall consist of the five (5) consecutive twelve-month periods (each such period referred to herein as an "Operating Year"), commencing on the Opening Date (including partial months in the first month and the last month).
(b) LPPI shall contribute to the City an amount equal to the following, not to exceed $3,000,000 in the aggregate:
(0 For each paid admission during the applicable Operating Year in excess of 2,200,OOO paid admissions, up to and including 2,500,OOO paid admissions, the sum of $0.50; and
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(ii) For each paid admission during the applicable Operating Year in excess of 2,500,OOO paid admissions, the sum of $1.00.
(cl To implement this Section 3.1.4.8, not later than the 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 the preceding Operating Year, and the amount calculated in accordance with subparagraph (b) of this Section 3.1.4.8, if any. The attendance report shall be certified by the chief financial officer of LPPI and an independent certified public accountant as an accurate report of the attendance for the applicable Operating 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 with this Section 3.1.4.8 (referred to hereinafter as the "Quality of Life Fees") shall be used for 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 which 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.
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3.1.4.9 Clearance of Parcel 18 if LEGOLAND CARLSBAD is not Completed or Ceases to Operate.
(a) Subject to Force Majeure and to the exceptions set forth in this Section 3.1.4.9, if, prior to the Opening Date, LPPI shall fail to diligently prosecute the construction of LEGOLAND CARLSBAD to completion within a reasonable time period, or abandon Parcel 18, or if, at any time prior to the expiration of the Term of this Agreement, LPPI shall permanently cease to operate LEGOLAND CARLSBAD on Parcel 18, LPPI shall promptly 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 LEG0 model structures, theme park rides, attractions, signs, landscaping, buildings, structures and other improvements, except landscaping, buildings, structures and other 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.
(b) For purposes of this Section, LEGOLAND CARLSBAD shall be deemed to ttpermanently cease to operate" if, subject to Force Majeure, at any time after the initial opening of LEGOLAND CARLSBAD to the public, LPPI closes LEGOLAND CARLSBAD to the public for more than 90 days, or announces that LEGOLAND CARLSBAD will close for an indefinite time (except if in either case, such closure is in connection with construction or repair of LEGOLAND CARLSBAD and such construction or repair proceeds in a timely and continuous manner).
(c) This Section 3.1.4.9 shall not be deemed to apply to any of the following:
0) Scheduled phased construction prior to the Opening Date, including mass grading in advance of actual construction, provided such construction commences not later than 180 days after mass grading is completed, and is diligently prosecuted to completion thereafter;
(ii) A phased Modification or a decision not to proceed with a Modification, so long as the Park continues operation;
(iii) A cessation due to delay in obtaining necessary 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
(VI A cessation resulting from a Force Majeure Event.
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(d) Concurrently herewith, LPPI has caused its parent corporation, LEG0 A/S, to execute and deliver to the City a 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 LEG0 A/S to perform LPPIls obligations pursuant to this Section in the event LPPI fails to perform such obligations. .
3.1.4.10 Donation bv LPPI. Subject to Force Majeure, and subject further to the right to extend the Term of this Agreement set forth in Section 4.2, below, and provided LPPI 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 or otherwise fail to satisfy any applicable condition precedent to such Project Approval), in the event LPPI fails to open LEGOLAND 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, LEG0
A/S, to execute and deliver to the City a corporate guarantee, substantially in the form attached as Exhibit 81G1t which is attached hereto and incorporated herein by this reference, setting forth the agreement of LEG0 A/S to perform LPPI's obligations pursuant to this Section in the event LPPI fails to perform such obligations.
On behalf of LPPI On behalf of the City
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3.1.4.11 Sisnase. The City agrees that LPPI shall be entitled to erect, place and maintain within the Amended Specific Plan area signs identifying LEGOLAND CARLSBAD in accordance with the signage program set forth in the Amended Specific Plan. In addition, the City agrees to support requests by LPPI for CalTrans' approval of freeway signs located outside the Amended Specific Plan area that identify LEGOLAND CARLSBAD, and the City agrees not to contest or object to any such freeway signs that are approved by CalTrans.
3.1.4.12 LEG0 Drive. City agrees that the street designated as such in the Map of Parcel 18 may be named "Legoland Drive" or similar name.
3.1.5 Assisnment bv LPPI
3.1.5.1 Subject to the approval of the City as provided below, upon written notice submitted to the City not less than thirty (30) days prior to each transfer or assignment, the rights and obligations of LPPI as to Parcel 18 under this Agreement
may be transferred or assigned from time to time during the Term of this Agreement, provided that such transfer or assignment is either (a) made as part of a transfer, assignment, sale or lease of all of Parcel 18, or (b) pursuant to an assignment of a security interest in Parcel 18 to a Mortgagee as security for financing of the development and operations of LEGOLAND CARLSBAD on Parcel 18 (including any combination of construction financing, bridge loans, take-out and permanent financing), and, subject further, in any event, that Parcel 18 shall continue to be operated exclusively as a LEG0 family park, as described in Section 3.1.4.7. Any such transfer or assignment shall be subject to the provisions of this Agreement and the controls and limitations contained herein. Any such assignee or transferee taking legal title or a leasehold pursuant to a lease from LPPI, shall enjoy the rights of LPPI under this Agreement as such rights pertain to Parcel 18.
3.1.5.2 Concurrently with the submission of the notice of proposed transfer or assignment by LPPI, LPPI shall submit to the City (a) a copy of all papers by which the transfer is to be effected, (b) a fully executed instrument, in form and content reasonably acceptable to the City, pursuant to which the transferee expressly assumes and agrees for the benefit of the City to perform all of the obligations of LPPI, under this Agreement, and (c) an acknowledgment, in form and content reasonably approved by the City and executed by the transferee, pursuant to which the transferee acknowledges that the transferee has read and understands this Agreement and all of the provisions hereof. The City agrees to consider the pre-approval of any form of proposed instruments submitted by LPPI pursuant to this Section 3.1.5.2 prior to the execution of such instruments. Provided LPPI is not in default of any of its obligations under this Agreement, the City
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shall promptly consider, and approve, conditionally approve or disapprove the proposed transfer.
3.1.5.3 In addition to the notice referred to above, LPPI shall submit written notice to the City immediately upon the consummation of any such transfer or assignment and shall include in such notice a fully executed copy (showing all recordation information for any recordable documents) of the instrument(s) by which the transfer or assignment was effected.
3.1.5.4 Notwithstanding anything to the contrary contained herein, LPPI shall have the right, without any further City consent, to transfer its interest in Parcel 18 and assign its rights and obligations under this Agreement to any affiliated company or entity owned or controlled, directly or indirectly, by majority shares or voting rights, by the Kirk Christiansen family, provided that Parcel 18 shall continue to be operated exclusively 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 and utilities necessary for the development of Parcel 18 shall be those set forth in the "Description of Public Improvements" attached to this Agreement as Exhibit llCtt.
3.2.1 CFD # 1 Taxes.
Nothing contained herein shall affect in any way the obligation of LPPI or its successors or assigns to pay applicable fees with respect to Community Facilities District fl. The parties acknowledge that Parcel 18 is subject to such taxes.
3.2.2 City's Commitment to Assist in Financins I- S/Cannon Road Interchanse
3.2.2.1 Method of Financinq. The parties anticipate that the cost of improving the I-5/Cannon Road interchange (the ttI-5/Cannon Road Improvements") shall .be provided as follows: (filCaltranstl) shol provide 50% the California Department of Transportation 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 I-S/La Costa Avenue Interchange, an additional $500,000 for a total not to exceed $2,600,000 (the "City's Share of I-S/Cannon Road Coststl).
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3.2.2.2 Citv's Monetarv Commitment. Provided (a) LPPI is not in default of this Agreement, and (b) Caltrans executes a cooperative agreement committing Caltrans to provide the Caltrans Share of such costs, the City hereby agrees to appropriate funds to pay the City's Share of I-S/Cannon Road Costs, to be made available when and as needed for the construction of the I-S/Cannon Road Improvements. The City shall make available the City's Share of the I-S/Cannon Road Costs when required by Caltrans. The City's Share of the I-5/Cannon Road Costs shall be disbursed by the City or Caltrans for construction in accordance with disbursement procedures that are mutually acceptable to the City and Caltrans.
3.2.2.3 Asreement with Caltrans. City shall use its best efforts to obtain all necessary approvals by the State of California to provide the Caltrans Share of the costs of constructing the I-S/Cannon Road Interchange, so that the interchange may be completed prior to the Opening Date, as described in Sections 4.2.1through 4.2.3. If necessary, the time required for the Opening Date to occur shall be extended until construction of the I-5/Cannon Road Interchange is completed. The parties agree that LPPI shall have the right, but not the obligation, to commence construction of LEGOLAND CARLSBAD, even if execution of all necessary documentation authorizing the respective availability of the City Share and Caltrans Share of the I-S/Cannon Road Costs shall not have occurred by the date of Commencement of Construction; provided that completion of the I-S/Cannon Road Interchange shall be a condition precedent to LPPI's obligation to open LEGOLAND CARLSBAD to the public. If LPPI elects to delay commencement of construction of LEGOLAND CARLSBAD until execution of all such necessary documentation, the time required for opening LEGOLAND CARLSBAD to the public shall be extended to the extent required as a result of such delay in the commencement of construction, as reasonably determined by the City Council.
3.2.2.4 Maintenanceof I-5/CannonRoad Interchange Landscaninq. The parties shall use their best efforts to obtain the agreement of Caltrans to install and maintain enhanced 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 such responsibility to a voluntary maintenance association among one or more of the property owners within the Carlsbad Ranch Specific Plan.
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3.2.3 EIR Mitiaation Measures
LPPI (as to Parcel 18 only) shall at its own expense timely perform all mitigation measures identified in Exhibit 'ID" attached hereto and incorporated herein by this reference. The parties understand and agree that, if and to the extent required by the California Environmental Quality Act or other applicable law, the City may, at the time of Site Development Plan review, impose additional mitigation measures as described in Section 3.1.2.7(b), and that LPPI shall be responsible for paying the cost of and/or performing all such subsequent mitigation measures. Nothing in this Agreement shall be construed to relieve LPPI of its obligation to perform additional mitigation, if anyI as determined in accordance with subsequent environmental documents.
3.2.4 Dedications
The portions of Parcel 18 to be reserved or dedicated for public purposes pursuant to this Agreement, if any, shall be that property described as set forth in Exhibit I'F", attached hereto and incorporated herein by this reference. The property described in Exhibit llFtl shall be dedicated by LPPI not later than the issuance of a building permit for LEGOLAND CARLSBAD. The City shall take such actions as may be necessary to vacate any prior dedications, offers to dedicate and grants of easements that are no longer necessary for the development of the Project in accordance with the Specific Plan and this Agreement. The parties understand and agree that minor changes, modifications or adjustments to the dedications described in Exhibit *IF'l and additional minor dedications may be required as the result of Site Development Plan review for Parcel
18, provided any such changes are consistent with the Specific Plan, the Applicable Rules, the Project Approvals and this Agreement, and shall not constitute an amendment to this Agreement.
Imnrovement Security/Insurance
As a condition of approving a final subdivision map or any future subdivision for all or a portion of Parcel 18, the City may require the furnishing of appropriate and reasonable improve- ment agreements and security pursuant to City Ordinance and California Government Code Sections 66462 and 66499, Nothing in this Agreement shall be construed as et a. alterlnq or relieving LPPI of any obligation imposed pursuant to Government Code Section 66462. In the event public financing is used to fund construction of improvements, the City may also require evidence of compliance with labor standards and insurance required as a stan- dard condition under federal, state or local law at the time of City action on any necessary development permits or any other entitlements for the use and development of Parcel 18 pursuant to the Agreement. If the improvements are financed by an Assessment District or Community Facilities District, the improvement security
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may be released in accordance with Government Code Section 66495.5 or similar provisions.
3.2.6 Further Land Use Actions
The parties acknowledge that subdivisions, boundary line adjustments or similar modifications may be necessary in the. future and are contemplated by this Agreement provided any such changes are consistent with the Specific Plan, the Applicable Rules, the Project Approvals and this Aqreement, and shall not constitute an amendment to this Agreement.
3.2.7 Financina of Public Improvements
(a) The required public improvements for LEGOLAND CARLSBAD consist of those offsite improvements described in the lVDescription of Public Improvementstl attached to this agreement as Exhibit "CVt. The public improvements may be financed through a combination of private and public financing sources including, but not limited to direct funding by CRC, Mello-Roos Districts, or Assessment Districts. In addition, the City and Caltrans shall share the cost of constructing the Cannon Road/I-5 Interchange, as described in Section 3.2.2 of this Agreement.
(b) In the event the Opening Date is or will be delayed as the result of the failure by CRC to provide offsite improvements required to be provided by such entity, 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 Opening Date to the extent reasonably required as a result of the delay. In addition, in the event the Opening Date is or will be delayed as the result of the failure of the City and/or Caltrans to provide for the construction of the Cannon Road/I-5 Interchange, as provided in Section 3.2.2 of this Agreement, LPPI's obligations pursuant to this Agreement shall be extended to the extent reasonably required as a result of the delay, and, in the event of such a failure by CRC, the City and/or Caltrans, LPPI shall have the right (but not the obligation), at its option, to:
0) elect not to proceed with the construction of LEGOLAND CARLSBAD, and terminate this Agreement; or
(ii) assume some or all of the obligations of the party who is otherwise responsible for such improvements, complete the work and obtain reimbursement from such party.
City agrees to reimburse LPPI promptly for any reasonable costs incurred by LPPI in assuming any obligation of the City to provide funds for the construction of the Cannon Road/I-5 Interchange, as provided in Section 3.2.2 of this Agreement. In addition, City agrees to use its best efforts to assist LPPI in securing
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reimbursement from any other responsible party for any improvements so constructed by LPPI.
(‘=I The parties anticipate that portions of the public improvements and utilities required for the Project will be financed by an Assessment District ("Assessment District") pursuant to the Municipal Improvement Act of 1913, California Street and Highways Code Section 10000 & sea., and an Infrastructure Financing District (ltIFDt') pursuant to California Government Code Section 53395 & sea., to be formed at the request of CRC, as the master developer of the Carlsbad Ranch Specific Plan area. The City shall use reasonable best efforts and diligence, subject to satisfaction of all applicable legal requirements and Council policies:
(i) To cooperate in good faith with CRC in the formation of the Assessment District and the IFD and issuance and sale of one or more series of bonds authorized by the Improvement Bond Act of 1915; and
(ii) To cooperate in good faith with LPPI to include provisions in the governing documents of the Districts to facilitate LPPI's exercise of the rights and receipt of the 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 to construct all or any portion of the public improvements and utilities to be financed by any such District which are required as a condition to development of the Project, together with CRC's right to convey the completed improvements to the City and receive a purchase price or reimbursement therefor; and
(B) Provisions allowing LPPI the right to enforce any provisions of the IFD which allocate the amount or priority of property tax increment revenues or bond proceeds toward payment of assessments which are a lien on Parcel 18 or provisions which otherwise benefit Parcel 18.
3.3 Development Impact Fees
3.3.1 Anplicable Fees and Assessments
Subject to all applicable laws then in effect, City shall have the right to charge and apply to Parcel 18 all generally applicable Development Impact Fees and assessments as may be in effect at the
time a Site Development Plan is approved or permits are issued for LEGOLAND CARLSBAD; provided, such fees shall not be applied by the City against Parcel 18 in a discriminatory manner, either by its terms or (due to the unique nature of LEGOLAND CARLSBAD) in
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practice. Such fees and assessments shall be paid when and as required by the applicable City ordinance establishing such fee or assessment. City shall provide LPPI with a description of the rate and method for computing any development impact fees to be assessed against LEGOLAND CARLSBAD.
3.3.2 Citv Reserves Riuht to Increase Fees
City reserves the right at any time during the Term of this Agreement to increase or otherwise modify any and all Development Impact Fees applicable to the Project. City also reserves the right to create and apply to Parcel 18 new categories of development impact fees. Provided, (a) Such increases and modifications to fees, and any such new fees, shall have general applicability, and not be applied by the City against Parcel 18 in a discriminatory manner, either by its terms or (due to the unique nature of LEGOLAND CARLSBAD) in practice; (b) the application of such increases, modifications to fees and new fees is prospective; and (c) their application would not prevent development of Parcel 18 in accordance with this Agreement.
3.3.3 Fee Credits
LPPI shall be eligible to receive any fee credits to which it may be entitled under the terms of the applicable City ordinance creating any fee applicable to Parcel 18.
3.4 Mortuauee Protection
3.4.1 The parties hereto agree that this Agreement shall not prevent or limit the right of LPPI at its sole discretion, to encumber Parcel 18 or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device (collectively I'Mortqaqel~) securing financing of the development and operations of LEGOLAND CARLSBAD on Parcel 18 (including any combination of construction financing, bridge loans, take-out and permanent financing), as provided in this Agreement; provided, however, that any such Mortgage shall be subordinate to (i) this Agreement, and (ii) all lien(s) and/or encumbrances in connection with the public financing contemplated by this Agreement; and provided further that if any portion of Parcel 18 to be dedicated or transferred to the City pursuant to this Agreement shall be subject to any Mortgage, such Mortgage shall be reconveyed 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 affect Parcel 18 upon acquisition of such fee title by LPPI and have a priority senior to the Agreement subordinate their respective interests to this Agreement.
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3.4.3 The City acknowledges that prospective lenders providing such financing may request certain interpretations and modifications of this Agreement, and agrees upon request, from time to time, to meet with LPPI and representatives of such lenders to discuss in good faith any such request for interpretation or modification. City shall not unreasonably withhold its consent to any such requested interpretation or modification which the City determines is consistent with the intent and purposes of this Agreement and protects the interests of City under this Agreement. Any Mortgagee of Parcel 18 shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value.
(b) Any Mortgagee which has submitted a request in writing to the City in the manner specified herein for giving notices shall be entitled to receive written notification from City of any default LPPI in the performance of such party's obligations under this Agreement.
(cl If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to LPPI under the term of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to LPPI, as the case may be. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement.
(d) Any Mortgagee who comes into possession of Parcel 18, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lien of such foreclosure, shall take Parcel 18, or part thereof, subject to the terms of this Agreement; provided, however, that such Mortgagee shall not be liable for any defaults or monetary obligations of LPPI arising prior to acquisition of title to Parcel 18 by such Mortgagee; and provided further in no event shall any such Mortgagee or its successors or assigns be entitled to a building permit or occupancy certificate until all fees and other monetary obligations due under this Agreement have been paid to the City and all otherwise applicable conditions to such permit or certificate have been satisfied.
3.5 Construction Reports and Schedulinq
The parties shall meet quarterly or at such other reasonable times as requested by the City in order to discuss the progress of construction. At these meetings, schedules, LPPI shall provide to the City progress updates and other information, indicating key dates and events leading to the opening to the public of LEGOLAND CARLSBAD. It is anticipated that such quarterly meetings shall be
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sufficient to report on the progress and status of inspections but the City Manager may require LPPI to submit written reports if deemed reasonably necessary.
3.6 Insurance
3.6.1 Maintenance of Insurance
Before commencing any improvement or construction work pursuant to any City-approved permit on the Project, LPPI shall obtain the insurance required under this Agreement. Thereafter, LPPI shall maintain all such insurance throughout the Term of this Agreement, unless LPPI obtains written approval of the City Risk Manager for any proposed change in the insurance required hereunder.
3.6.2 Workers' Compensation Insurance
LPPI shall maintain workers' compensation insurance with limits as required by the Labor Code of the State of California for all persons employed by LPPI at the site of the Project. LPPI shall require each contractor and subcontractor to provide workers' compensation insurance for their respective employees. LPPI shall indemnify the City for damage suffered by the City as a result of LPPI's failure to obtain and maintain such insurance.
3.6.3 Liability Insurance
LPPI shall maintain or cause to be maintained commercial general liability insurance with a liability limit of at least $3,000,000 combined single limit per occurrence, insuring LPPI against liability for bodily injury, personal injury and property damage arising out of the ownership, use, improvement, maintenance and operation of the Project. Such liability insurance shall:
(a) Name the City (and its officials, employees, agents, attorneys and authorized representatives) as an additional insured; provided, however, such insurance shall not cover liabilities of the City to the extent arising out of the negligence or willful misconduct of the City, or its officials, employees, agents, attorneys or authorized representatives;
(b) Constitute primary insurance as respects the City and its officials, employees, agents, attorneys and authorized representatives, and any insurance or self-insurance maintained by the City, its officials, employees, agents, attorneys and authorized representatives shall not contribute to it; and
(cl Provide for severability of interests or include a cross-liability endorsement, such that an act or omission of an insured shall not reduce or avoid coverage of another insured.
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3.6.4 Other Insurance Provisions
Each insurance policy required hereunder shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits, unless thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. All insurance shall be placed with insurers licensed by the State of California to transact business of the types required herein. Except where LPPI provides self insurance, pursuant to a program of self-insurance reasonably acceptable to the City, each insurer shall have a current Best's Key Rating of not less than A-V.
4. GENERAL PROVISIONS
4.1 Approval Procedure; Effective Date; Recordation
The following procedure shall govern approval of this Agreement (which shall precede the execution hereof by the City):
(a) Prior to City Council consideration of this Agreement LPPI shall execute this Agreement; provided, however, that LPPI shall have the right prior to the Effective Date of this Agreement to withdraw its execution based upon the terms and conditions contained in the Project Approvals.
(b) City Council shall undertake all necessary proceedings to consider this Agreement. Approval by the City shall be by adoption of the Approval Ordinance.
(c) Following adoption of the Approval Ordinance, the Mayor shall execute this Agreement on behalf of the City, and take such steps as may be required to obtain Coastal Commission Approval.
(d) This Agreement shall be effective immediately upon Coastal Commission Approval (the "Effective Date"). As provided in Section 65868.5 of the Development Agreement Act, the City shall cause a copy of this Agreement to be recorded with the San Diego County Recorder within ten (10) days following the Effective Date. Any recording costs shall be paid by LPPI.
4.2 Term
This Agreement shall commence upon the Effective Date, and, subject to earlier termination in accordance with the terms hereof, shall remain in effect for five years following the Opening Date. LPPI intends to and shall use good faith efforts to open LEGOLAND CARLSBAD to the public on or before December 31, 1999. LPPI shall in any event open LEGOLAND CARLSBAD to the public not later than the Opening Date as provided in Sections 4.2.1 through 4.2.3,
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below. The City shall have the right to terminate this Agreement in the event LPPI fails to open LEGOLAND CARLSBAD prior to the Opening Date set forth, and subject to the extensions of time provided in Sections 4.2.1 through 4.2.3.
4.2.1 Prior to the Ooeninu Date
(a) Subject to extensions permitted by this Section 4.2.1, and subject to the provisions of Section 4.2.3, below, the Term of this Agreement shall expire on the fifth (5th) anniversary of the Effective Date in the event the Opening Date does not occur by that date.
(b) In the event LEGOLAND CARLSBAD is not open to the public by the fifth (5th) anniversary of the Effective Date, LPPI shall be entitled to an extension of the time required for the Opening Date for one year, by delivering to the City, prior to the fifth (5th) anniversary of the Effective Date, a notice of extension, accompanied by payment in the amount of $450,000, so that the Opening Date shall be required to occur on or prior to the sixth (6th) anniversary of the Effective Date.
(c) In the event LPPI has extended the required time for the Opening Date in accordance with subdivision (b), but LEGOLAND CARLSBAD is not open to the public by the sixth (6th) anniversary of the Effective Date, LPPI shall be entitled to a further extension of the time required for the Opening Date for one additional year, by delivering to the City, prior to the sixth (6th) anniversary of the Effective Date, a notice of second extension, accompanied by an additional payment in the amount of $450,000, so that the Opening Date shall be required to occur on or prior to the seventh (7th) anniversary of the Effective Date.
4.2.2 Followinu Openinu Date
In the event the Term of this Agreement does not expire prior to the Opening Date in accordance with Section 4.2.1, the Term of this Agreement shall expire five years following the 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 Opening Date to occur, without payment of any extension fee, in the event of the following:
(a) Delay in obtaining any necessary governmental permits and approvals, including, but not limited to, delay in cancellation of the Williamson Act Contract as described in Section 3.1.3.2, which delay is not caused by any provide any necessary submittals, failure by LPPI to or delay in execution of all
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necessary documentation authorizing the availability of the City's and the State's contribution to the I-S/Cannon Road Costs, as described in Section 3.2.2.3;
(b) Force Majeure Delay, as provided in Section 4.24 of this Agreement; or
(c) LPPI shall be entitled to extend the time required for the Opening Date to occur, in the event of delay or default by the City or Caltrans in constructing the I-S/Cannon Road Improvements; and
(d) Subject to the approval of the City in accordance with Sections 3.1.2.3 or 3.2.7, LPPI shall be entitled to extend the time required for the Opening Date to occur, in the event of delay or default by CRC in providing necessary infrastructure or paying applicable fees (except fees relating to Williamson Act Contract cancellation).
4.3 Cooperation and Imolementation
4.3.1 City represents that it will cooperate with LPPI to the fullest extent reasonable and feasible to implement this Agreement. Upon satisfactory completion by LPPI of all of its preliminary actions and payments of appropriate fees, City shall promptly commence and diligently proceed to complete all steps necessary for the implementation of this Aqreement and the development of Parcel 18 in accordance with the terms of this Agreement, including, but not limited to, the processing and checking of any and all Project Approvals, agreements, covenants and related matters required under the conditions of this Agreement, building plans and specifications, and any other plans necessary for the development of Parcel la, requests for inspections and certificates of occupancy, filed by or on behalf of LPPI. LPPI shall, in a timely manner, provide City with all documents, plans and other information necessary for City to carry out its obligations hereunder.
4.3.2 In the event of any legal action instituted by a third party (not a party to this Agreement) or any governmental entity or official (other than the City or an official of the
city), challenging the validity of any provision of this Agreement, the Project Approvals or any City action relating thereto, the parties hereby agree to cooperate in defending said action; provided, however, LPPI shall indemnify and hold harmless City from all litigation expenses, including reasonable attorneys' fees and costs, arising out of any legal action instituted by such third party (not a party to this Agreement), or other governmental entity
Of official (other than City or an official of the City) challenging the validity of any provision of this Agreement, the Project Approvals or any City action relating thereto. City shall promptly notify LPPI of any such action and City shall cooperate in
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the defense thereof. LPPI's obligation to indemnify the City pursuant to this Section shall not apply to legal actions by one or more other owners of property within the Specific Plan Amendment area challenging City action relating to Project Approvals affecting such owners and not affecting Parcel 18.
4.3.3 The filing of any lawsuit(s) by a third party (not a party to this Agreement) against City, LPPI relating to this Agreement or to other development issues affecting the Project shall not delay or stop the processing or issuance of any permit or authorization necessary for development of the Project, unless the 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 perform any term or provision of this Agreement required to be performed by such party shall constitute an event of default ("Event of Default"). For purposes of this Agreement, a party claiming another party is in default shall be referred to as the "Complaining Party,l' and the party alleged to be in default shall be referred to as the "Party in Default." Provided, a Complaining Party shall not exercise any of its remedies as the result of such Event of Default unless such Complaining Party first gives notice to the Party in Default as provided in Section 4.4.2, and the Party in Default fails to cure such Event of Default within the applicable cure period.
4.4.2 Procedure Reaardins Defaults.
4.4.2.1 The Complaining Party shall give written notice of default to the Party in Default, specifying the default complained of by the Complaining Party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default.
4.4.2.2 The Party in Default shall diligently endeavor to cure, correct or remedy the matter complained of, provided such cure, correction or remedy shall be completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the Complaining Party to be reasonably necessary to correct the matter).
4.4.2.3 Any failures or delays by a Complaining Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by a Complaining Party in asserting any of its rights and remedies shall not deprive the Complaining Party of its right to institute and maintain any actions or proceedings which it
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may deem necessary to protect, assert, or enforce any such rights or remedies.
4.4.2.4 If an Event of Default occurs with respect to (a) the payment of money, (b) the submission of documents, (c) the obtaining and maintaining of the insurance required by this Agreement, or (d) the remediation of Hazardous Substances, prior to exercising any remedies, the Complaining Party shall give the Party in Default written notice of such default. The Party in Default shall have a period of thirty (30) days after such notice is given within which to cure the default prior to exercise of remedies by the Complaining Party.
4.4.2.5 If an Event of Default occurs with respect to any other obligation, prior to exercising any remedies, the Complaining Party shall give the Party in Default written notice of such default. If the default is reasonably capable of being cured within thirty (30) days, the Party in Default shall have such period to effect a cure prior to exercise of remedies by the Complaining Party. If the nature of the alleged default is such that it cannot practicably be cured within such 30 day period and the default pertains to an obligation other than (a) the payment of money, (b) the submission of documents, (c) the obtaining and maintaining of the insurance required by this Agreement, or (d) the remediation of Hazardous Substances, the cure shall be deemed to have occurred within such 30 day period if (w) the cure is commenced at the earliest practicable date following receipt of the notice; (x) the cure is diligently prosecuted to completion at all times thereafter; (y) at the earliest practicable date (in no event later than 30 days after the curing party's receipt of the notice), the curing party provides written notice to the other party that the cure cannot practicably be completed within such 30 day period; and (z) the cure is completed at the earliest practicable date. In no event shall Complaining Party be precluded from exercising 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 fails to cure a default in accordance with the foregoing, the Complaining Party, at its option, may terminate this Agreement, and/or institute legal proceedings pursuant to this Agreement.
4.4.2.7 Without limitation, evidence of default may arise in the course of the regularly scheduled annual review described in Section 4.4.3. below.
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4.4.3 Annual Review
4.4.3.1 Responsibilities of the Parties City shall, at least every twelve (12) months during the term of this Agreement, review the extent of good faith substantial compliance by LPPI, with the terms of this Agreement. Subject to the notice and cure procedure set forth in Section 4.4.2, such a periodic review may result in amendment or termination of this Agreement, provided a default has been established under the terms of this Agreement. Pursuant to Government Code Section 65865.1, as amended, LPPI shall have the duty to demonstrate its good faith compliance with the terms of this Agreement at such periodic review. The parties recognize that this Agreement and the docu- ments incorporated herein could be deemed to contain many requirements (i.e., construction standards, landscape standards, etc.) and that evidence of each and every requirement would be a wasteful exercise of the parties' resources. Accordingly, LPPI shall be deemed to have satisfied its duty of demonstration if it presents evidence satisfactory to the City of its good faith and 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 reservations and dedications to the City. Any party may address any requirement of this Agreement during the review. However, ten (10) days' written notice of any requirement to be addressed shall be made by the requesting party. If at time of review an issue not previously 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 with 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 review or otherwise, shall be the responsibility of LPPI.
4.4.3.2 Ooportunitv to be Heard Upon written request to City by LPPI, LPPI shall be permitted an opportunity to 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 cgntract performance a minimum of ten (10) calendar days prior to any such review or action upon Commission or the City Council. this Agreement by the Planning
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4.4.4 Institution of Leual Action
4.4.4.1 Subject to notice of default and opportunity to cure under Sections 4.4.1 and 4.4.2, and subject further to the limitation on remedies set forth in Section 4.4.5, in addition to any other rights or remedies, any party to this Agreement may institute legal action to cure, correct or remedy any default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, or to obtain any other remedies consistent with this Agreement. Such legal action shall be heard by a referee from the San Diego County Superior Court pursuant to Code of Civil Procedure Sections 638 et sea. LPPI and City shall agree upon a single referee who shall then try all issues, whether of fact or law, and report a finding and judgment thereon and issue all legal and equitable relief appropriate under the circumstances of the controversy before him or her. If the parties are not able to agree upon a referee within ten (10) days of a written request to do so by either party hereto, any party may seek to have a referee appointed pursuant to Code of Civil Procedure Section 640. The costs of such proceeding shall initially be borne equally by the parties, and each party shall bear its own costs. Any referee selected pursuant to this Section 4.4.4.1 shall be considered a temporary judge appointed pursuant to Article 6, Section 21, of the California Constitution. Provided, however, that the obligation of the parties to utilize such a referee is conditioned upon the referee having full legal authority to award and supervise full implementation of the remedies described in Section 4.4.5 hereof. Nothing in this Section shall preclude either party's right to appeal the decision of the referee.
4.4.4.2 If a legal action or proceeding is brought by any party to this Agreement because of an Event of Default under this Agreement, or to enforce a provision hereof, each party shall bear its own costs, including attorneys' fees. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement.
4.4.5 Remedies
The parties would not have entered into this Agreement without the limits on damages under this Agreement set forth herein. Moreover, City would not have entered into this Agreement if LPPI had not acknowledged that a reasonable relationship exists between all exactions imposed and all consideration referenced in this Agreement and the impact of the Project upon the community. Accordingly, the parties agree that each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, subject to the following:
(a) City and all persons acting on behalf of the City shall not be liable in damages to LPPI, or to any successor in
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interest, or to any other person. LPPI covenants not to sue for monetary damages or claim any monetary damages:
(i) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(ii) For the taking, impairment or restriction of any property right or interest as the result of or arising under or pursuant to this Agreement, but excluding claims based upon applicable obligations of the City acting in its governmental capacity and not as a party to this Agreement, and reserving the reserved rights and remedies described in Section 4.4.5(d); or
(iii) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.
(iv) Provided, however, that LPPI reserves the right to sue to enforce the obligation of the City to provide the City's Share of the I-5/Cannon Road costs, not to exceed $2,600,000, as provided in Section 3.2.2.2., by specific performance, writ of mandate or other appropriate remedy not including damages seeking amounts other than the unpaid portion of the City's Share.
(b) LPPI shall not be liable in monetary damages to City, or to any person acting on behalf of City, and City covenants not to sue for damages or claim any monetary damages:
(0 For failure to construct and open LEGOLAND CARLSBAD, or any breach of this Agreement or for any cause of 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 or effect of the provisions of this Agreement;
(iii) Provided, however, that City reserves the right to sue for:
(A) any sums payable by LPPI to City pursuant to Section 4.13 (Indemnity) which LPPI fails
to pay, including, without limitation, all litigation costs, including reasonable attorney's fees, incurred as the result of LPPI's failure to defend City, its officers, agents, attorneys, employees and representatives which LPPI is obligated to defend pursuant to Section 4.13;
(B) any sums payable by LPPI to City pursuant to the following Sections, which LPPI fails to
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pay when and as due pursuant to this Agreement: (i) Section 3.1.4.8 (Quality of Life Fee); Section 3.1.4.9 (Cost to Clear Parcel 18); Section 3.1.4.10 (Donation for failure to construct LEGOLAND CARLSBAD);
(C) any other sums that are specifically required to be paid pursuant to this Agreement.
(c) The parties acknowledge that, except as provided in Section 4.4.5(a)(iv) and ,(b)(iii), above, money damages and remedies at law generally are inadequate and that specific performance or writ of mandate is the exclusive remedy for the enforcement of this Agreement and should be available to all parties for the following reasons:
W Money damages are unavailable against City, or against LPPI except as provided above;
(ii) Due to the size, nature and scope of the Project, it will not be practical or possible to restore Parcel 18 to its preexisting condition once implementation of this Agreement has begun. After such implementation, LPPI may be foreclosed from other choices it may have had to utilize Parcel 18 and provide for other benefits. LPPI has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement, and will be investing even more significant time and resources in implementing the Project in reliance upon those terms, and it will not be possible to determine the sum of money that would adequately compensate LPPI for such efforts. By the same token, City will have invested substantial time and resources and will have permitted irremediable changes to the land and increased demands on the surrounding infrastructure and will have committed, and will continue to commit, to development in reliance upon the commitment to provide infrastructure and related improvements and other exactions to meet the needs of the proposed development and to mitigate its effects on the area and upon City and the public at large, all in reliance upon the terms of this Agreement, and it would not be possible to determine a sum of money which would adequately compensate City for such undertakings. For this reason, the parties hereto agree that if any party fails to carry out its obligations under this Agreement, an injured party shall be entitled to non-damages remedies, including the remedy of specific performance of this Agreement.
(d) Except for judicial review and non-damages remedies, including, the remedy of specific performance of this Agreement or writ of mandate to enforce this Agreement, LPPI, for itself and its successors and assigns, hereby releases the City, its officers, agents, attorneys, employees and representatives, from any and all
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claims, demands, actions or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the City because it entered into this Agreement or because of the terms of this Agreement. Provided, however, that LPPI reserves all of its otherwise applicable rights and remedies in the event of an actual condemnation, inverse condemnation or inappropriate taking, restriction or regulation by the City, which are rights and remedies LPPI otherwise has as a property owner.
(e) Nothing in this Agreement shall be deemed to waive or limit any rights and remedies that the parties would otherwise have against the other in the absence of this Agreement with respect to injury caused by the negligence or willful misconduct of a party.
(f) Notwithstanding any provision to the contrary contained herein, in the event LPPI fails to construct or open LEGOLAND CARLSBAD to the public, the City shall not have any right to sue LPPI for damages or for specific performance, except to enforce LPPI's obligations pursuant to Section 3.1.4.9 (Cost to Clear Parcel 18) and Section 3.1.4.10 (Donation for failure to construct LEGOLAND CARLSBAD).
4.5 Notices \
All notices or other communications required hereunder shall be in writing and shall be personally delivered (including by means of professional messenger service), or sent by registered or certified mail, postage prepaid, return receipt required, or by electronic facsimile transmission followed by delivery of a "hardl'
copy, and shall be deemed received on the date of receipt thereof. Unless otherwise indicated in writing, such notice shall be sent 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
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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 LPPI hereunder, and except as otherwise provided in this Agreement, this Agreement shall be deemed terminated and of no further effect upon the expiration of the Term of this Agreement as set forth in Section 4.2.1 or 4.2.2, as applicable.
4.6.2 Subject to the notice and cure provisions set forth in Section 4.4.2, the City shall have the right to terminate this Agreement as to Parcel 18 and the rights of LPPI hereunder, in the event:
(a) LPPI defaults and fails to cure such default within the respective curative period; or
(b) LPPI, or any assignee permitted by this Agreement, fails to complete construction of and open to the public LEGOLAND CARLSBAD within the time provided in Section 4.2.1, subject to extensions permitted by Section 4.2.1 and subject to the provisions of Section 4.2.3; or
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(cl After the Opening Date, LPPI shall cease to operate LEGOLAND CARLSBAD on Parcel 18, as provided in subparagraph (b) of Section 3.1.4.9, subject to the exceptions in subparagraph (c) of Section 3.1.4.9 of this Agreement.
(d) LPPI shall be entitled to extend the time required for the Opening Date to occur, in the event of delay or default by the City or Caltrans in constructing the I-S/Cannon Road Improvements; and
(e) Subject to the approval of the City in accordance with Sections 3.1.2.3 or 3.2.7, LPPI shall be entitled to extend the time required for the Opening Date to occur, in the event of delay or default by CRC in providing necessary infrastructure or paying applicable fees (except fees relating to Williamson Act Contract cancellation).
4.6.3 In addition, subject to the notice and cure provisions set forth in Section 4.4.2, LPPI shall have the right to terminate this Agreement in the event the City (a) defaults in its obligation to issue permits for LEGOLAND CARLSBAD as provided in this Agreement, or (b) the City fails to provide the City's Share of I-S/Cannon Road Costs and LPPI elects not to cure such default, or (in the event LPPI pays the City's Share), the City fails to reimburse LPPI within a reasonable time.
4.6.4 Uponthetermination of this Agreement pursuant to Section 4.6.2 or 4.6.3, neither party shall have any further right or obligation with respect to Parcel 18 hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are speci- fically set forth as surviving this Agreement. The following obligations of LPPI shall survive the termination of this Agreement, except termination of this Agreement pursuant to Section 4.6.3: (a) LPPI's obligation to pay the Quality of Life Fee, if any, for any year prior to such termination, pursuant to Section 3.1.4.8; (b) LPPI's obligation to clear Parcel 18 pursuant to Section 3.1.4.9; (c) LPPI's obligation to pay the Donation to the City pursuant .to Section 3.1.4.10; and (d) the indemnity in accordance with Section 4.13, prior to termination. but only as to matters occurring
4.7 Effectiveness Subject to Coastal Commission Approval
This Agreement shall not become effective unless it is determined, in the Approval Ordinance, to be consistent with the City's local coastal program and receives "Coastal Commission Approval." For purposes of this Agreement, 'ICoastal Commission ApprovalI@ shall mean certification of the local coastal program or
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approval of this Agreement by the California Coastal Commission, as required by California Government Code Section 65869.
4.8 No Third Partv Beneficiaries
This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
4.9 Time of Essence
Time is of the essence for each provision of this Agreement of which time is an element.
4.10 Modification, Amendment or Extension
Subject to any notice and hearing requirements imposed by law, this Agreement may be modified, amended and/or extended from time to time by mutual written consent of the City and LPPI in the same manner as its adoption by ordinance as set forth in Government Code Sections 65867, 65867.5 and 65868 and the Approval Ordinance.
4.11 Ooeratina Memoranda
The provisions of this Agreement require a close degree of cooperation between the City and LPPI and development of Parcel 18 hereunder may demonstrate that refinements and clarifications are appropriate with respect to the details of performance of the City and LPPI. If and when, from time to time, during the term of this Agreement, the City and LPPI agree that such clarifications are necessary or appropriate, the City and LPPI shall effectuate such clarifications through operating memoranda approved by the City and LPPI, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further clarified from time to time as necessary with future approval by the City and LPPI. No such operating memoranda shall constitute an amendment to this Agreement requiring public notice or hearing. The City Manager, in consultation with the City Attorney, shall be authorized to make the determination on behalf of the City whether a requested clarification may be effectuated pursuant to this Section 4.11 or whether the requested clarification is of such a character to constitute an amendment hereof pursuant to Section 4.10 above. The City Manager shall be authorized to execute any operating memoranda hereunder on behalf of the City.
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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 regulations enacted after this Agreement has been entered into or the action or inaction of any other affected governmental jurisdiction prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, the parties shall (a) provide the other party with written notice of such state or federal restriction, provide a copy of such regulation or policy and a statement of conflict with the provisions of this Agreement, and (b) LPPI and the City staff shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Agreement, but only to the minimum extent necessary to comply with such federal or state law or regulation. Thereafter, regardless of whether the parties reach an agreement on the effect of such federal or state law or regulation upon this Agreement, the matter shall be scheduled for hearings before the Council. Ten (10) days' written notice of such hearing shall be given, pursuant to Government Code Section 65854.5. The Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation. LPPI, at the hearing, shall have the right to offer oral and written testimony. Any modification or suspension shall be taken by the affirmative vote of not less than a majority of the authorized voting members of the Council. Any suspension or modification may be subject to judicial review.
4.12.2 Coooeration in Securins Permits
The City shall cooperate with LPPI in the securing of any permits which may be required as a result of such modifications or suspensions.
4.13 Indemnitv
4.13.1 LPPI agrees to and shall defend, indemnify and hold harmless City, its officers, agents, attorneys, employees and representatives from liability for damage or claims for damage for personal injury including death and claims for property damage which may arise from the acts of the indemnifying party or those of their contractors, subcontractors, agents, employees or other persons acting on his behalf in connection with the Project.
4.13.2 This indemnification and hold-harmless agreement applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the activities and development referred to in this Agreement, not City prepared, regardless of whether or supplied or approved plans or specifications, or
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both, for such activities or development, excepting damages caused by the negligence or willful misconduct of the City.
4.14 Waiver
No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized repre- sentative of the party against whom enforcement of a waiver is sought and referring expressly to this Section. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respect of any other occurrence or event.
4.15 Intentionallv Omitted
4.16 Successors and Assiuns
Except as expressly provided to the contrary in this Agreement, the burdens and obligations of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement and all successors in interest to Parcel 18 or any portion thereof or any interest therein, and shall be covenants running with the land.
4.17 Governing State Law
This Agreement shall be construed in accordance with the laws of the State of California.
4.18 Constructive Notice and Acceptance
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 be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in Parcel 18.
4.19 Statement of Compliance
Within fifteen (15) working days following any written request, in accordance with the notice provisions of this Agreement, which either party may make from time to time, the other party shall execute and deliver to the requesting party a statement certifying that: (a) this Agreement is unmodified and in full force and effect or, if there have been modifications hereto, that this Agreement is in full force and effect, as modified, and stating the date and nature of such modifications; (b) there are no current uncured defaults under this Agreement or specifying the dates and nature of any such defaults; ation reasonably requested. and (c) any other inform- The failure to deliver such statement within such time shall be conclusive upon the party which fails to
cbad\lcgo\da.6 -42-
deliver such statement that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party. Said statement(s) shall be in the form reasonably satisfactory to the City, LPPI and to any purchaser, lender, title company, governmental agency, or other person reasonably requesting such statement(s) in connection with sale, use, development, construction, financing or marketing of Parcel 18. The City and LPPI, for their own respective uses, shall also be entitled to obtain a statement of compliance at any reasonable time.
4.20 Covenant of Good Faith and Fair Dealing
No party shall do anything which shall have the effect of harming or injuring the right of the other parties to receive the benefits of this Agreement.
4.21 Covenant of Cooperation
LPPI and the City shall cooperate with and assist each other in the performance of the provisions of this Agreement, including assistance in obtaining permits for the development of Parcel 18 which may be required from public agencies other than the City. LPPI reserves the right to challenge any such ordinance, measure, moratorium or other limitation in a court of law if it becomes necessary to protect the development rights vested in Parcel 18 pursuant to this Agreement.
4.22 Further Actions and Instruments
The parties to this Agreement shall cooperate with and provide reasonable assistance to the other parties to the extent contemplated in the performance of all obligations under this Agreement and the satisfaction of the conditions of the Agreement. Upon the request of any party, the other parties shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfil1 the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement.
4.23 Section Headinus
All Article and Section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
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4.24 Enforced Delav (Force Maieure)
(a) In addition to specific provisions of this Agreement, performance by any party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, walkouts, riots, floods, earthquakes, fires, casualties, acts of God, governmental restrictions imposed or mandated by governmental entities (but only as to delays or defaults on the part of LPPI), enactment of conflicting state or federal laws or regulations (but only if the party claiming delay complies at all times with the provisions of this Agreement pertaining to such conflicting laws), delays caused by the delay or failure by any entity other than the party claiming such delay to provide financing for or construction of needed public facilities or infrastructure as contemplated or required by this Agreement, delays due to the enforcement of environmental regulations, litigation, or similar bases for excused performance.
(b) An extension of time for any such cause (a "Force Majeure Delay") shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other parties within thirty (30) days of knowledge of the commencement of the cause. Notwithstanding the foregoing, none of the foregoing events shall constitute a Force Majeure Delay unless and until the party claiming such delay and interference delivers to the other party written notice describing the event, its cause, when and how such party obtained knowledge, the date the event commenced, and the estimated delay resulting therefrom. Any party claiming a Force Majeure Delay shall deliver such written notice within thirty (30) days after it obtains actual knowledge of the event. Times of performance under this Agreement may also be extended in writing by the City.
(‘=I Notwithstanding the first sentence of paragraph (b), above, the following shall apply: (i) LPPI shall be entitled to a Force Majeure Delay for a period longer than the period of enforced delay if the City Council determines that such longer period is reasonably required; and (ii) LPPI shall be entitled to a Force Majeure Delay notwithstanding the fact that LPPI may not have given timely notice to the City, if the City Council determines that such Force Majeure Delay is reasonably required.
4.25 eraencv Circumstances
(a) If, as the result of specific facts, events or circumstances, the City believes that a severe and immediate emergency threat to the health or safety of the City or its residents, meeting the requirements of subparagraph (b), below, requires the modification, suspension or termination of this Agreement, the City will, after reasonable notice to LPPI (in light of all the circumstances), hold a hearing on such facts, events or
cbad\Lego\da.6 -44-
circumstances, at which LPPI shall have the right to address the City Council. The City shall have the right to modify, suspend or terminate this Agreement, in whole or in part, if, following such hearing, the City Council determines that such modification, suspension or termination is required in order to protect the health and safety of the City and its residents.
(b) For purposes of this Section 4.25, an emergency shall meet each of the following criteria: (i) it must be based on genuine health, safety and general welfare concerns (other than general growth management issues); (ii) it must arise out of a documented emergency situation, as declared by the President of the United States, Governor of California, or the Mayor, City Council or City Manager of the City of Carlsbad; and (iii) based upon its terms or its effect as applied, it does not apply exclusively or primarily to Parcel 18.
4.26 Bankruptcy
The obligations of this Agreement shall not be dischargeable in bankruptcy.
4.27 Severability
Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person, by judgment
or court order, shall in no way affect any of the other provisions hereof or the application thereof to any other person or circum- stance, and the same shall remain in full force and effect, unless enforcement of this Agreement, as so invalidated, would be unrea- sonable or inequitable under all the circumstances or would frustrate the purposes of this Agreement and/or the rights and obligations of the parties hereto.
4.28 Interoretation
The language in all parts of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any party. The parties hereto acknowledge and agree that this Agreement has been prepared jointly by the parties and has been the subject of arm's length and careful negotiation over a considerable period of time, that each party has independently reviewed this Agreement with legal counsel, and that each party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions hereof. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the party preparing it, and instead other rules of interpretation and construction shall be utilized.
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4.29 Counternarts
This Agreement may be executed in duplicate counterpart originals, each of which is deemed to be an original and all of which when taken together shall constitute one and the same instrument.
4.30 Entire Aareement
This Agreement consists of forty-seven (47) pages, two (2) pages of notarial acknowledgments and seven (7) exhibits (designated ttAtt through t1G'8), which constitute the entire understanding and agreement of the parties.
IN WITNESS WHEREOF, the parties have each executed this 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]
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LEG0 PARK PLANNING, INC., a California corporation
Bv:
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STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO )
On before me, per&ally appeared personally known to me (or proved to me on the basis of satisfadtory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
STATE OF CALIFORNIA ) ) ss. COUNTY OF SAN DIEGO )
On before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
EXHIBIT “A”
LEGAL OESCIPTION
LOT 18 OF CARLSBAD TENTATIVE TRACT MAP CT 94-09
Exhibit ttA’q Page 1 of 1
i
17 I
i : \
EXHIBIT B
‘. LOCATION MAP . *
EXHIBIT "C"
DESCRIPTION OF PUBLIC IMPROVEMENTS
THIS EXHIBIT WILL BE PREPARED AND ATTACHED AT THE TIME THE AMENDED SPECIFIC PLAN, THE DEVELOPMENT AGREEMENT AND RELATED MATTERS ARE TAKEN TO CITY COUNCIL FOR FINAL APPROVAL
Exhibit rcC" Page 1 of 1
. .
EXHIBIT '@D"
MITIGATION MEAWRES
THIS EXHIBIT WILL BE PREPARED AND ATTACHED AT THE TIMi THE AMENDED SPECIFIC PLAN, THE DEVELOPMENT AGREEMENT AND RELATED MATTERS ARE TAXEN TO CITY COUNCIL FOR FINAL APPROVAL
Exhibit **D@* Page 1 of 1
EXHIBIT "E"
DESCRIPTION OF MINIMUM COMPONENTS OF LEGOLAND CARLSBAD
LEGOLAND CARLSBAD shall include the following minimum components located on-site (i.e., within Parcel 18):
1.
2.
3.
4.
5.
6.
7.
8.
9.
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 purposes;
An entrance facility;
Landscaping and fencing LEGOLAND CARLSBAD in requirements of the Site to exceed the parameters Plan;
Parking areas for guest employee parking in requirements of the Site to exceed the parameters Plan;
around the perimeter of accordance with the Development Plan, but not set forth in the Specific
parking, bus parking and accordance with the Development Plan, but not set forth in the Specific
Parking lot landscaping in accordance with the City landscape requirement of one (1) tree per four (4) parking stalls;
A minimum of one (1) food service facility;
A minimum of one (1) gift shop;
A minimum of three (3) attractions (and, for purposes of example, an attraction may consist of, but is not limited to, any one of the following: a "Miniland" featuring models constructed of Lego bricks; a Miniland boat ride; a Leg0 product building workshop or building area; or other attraction);
An educational area for visiting school children; and
Exhibit tlEtl Page 1 of 2
10. Wet and dry utilities to service the Site, 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 "Et' Page 2 of 2
EXHIBIT “F”
DESCRIPTION OF DEDICATIONS
THIS EXHIBIT WILL BE PREPARED AND ATTACHED,AT THE TIME THE AMENDED SPECIFIC PLAN, THE DEVELOPMENT AGREEMENT AND RELATED MATTERS ARE TAKEN TO CITY COUNCIL FOR FINAL APPROVAL
Exhibit “Ftt Page 1 of 1
EXHIBIT "G"
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Guaranty") is made and entered into by LEG0 A/S, a Danish corporation (ttGuarantort') to and for the benefit of the CITY OF CARLSBAD, CALIFORNIA (ltCity@l), and its successors and assigns.
LEG0 PARK PLANNING a California corporation ("LPP?") and City have entered'?kto that certain Development Agreement executed concurrently herewith by and between LPPI and City (referred to herein as the t'DAtl). LPPI intends to construct 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 LEG0 model structures, theme park rides, attractions, signs, landscaping, buildings, structures and other improvements, except landscaping, buildings, structures and other 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 donation to the City in the amount of $500,000, in the event LPPI fails to 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 WGuaranteed Obligationsti.
C. Guarantor (by and through its affiliate entities) has a substantial financial interest in the business and affairs of LPPI and it will receive substantial economic benefit should LPPI 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 ltGt' Page 1 of 7
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 other 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 and all of the instruments described therein and/or attached thereto.
2. If for any reason, other than the acts of City, LPPI should fail to perform the Guaranteed Obligations as set forth in 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 such 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 the 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 DA 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 right 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; each case, or (C) the Guarantor only, in without having commenced any action or having obtained
Exhibit "G** Page 2 of 7
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 DA or Parcel 18, other than termination as described in Section 5 of this Guaranty; (b) the acceptance by City of any security for or 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 of 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 and 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 the 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 do, 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 performance 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 tVGV1 Page 3 of 7
lb) from time to time and without first requiring full 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 in 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 to 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 in 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 "Gtl Page 4 of 7
15. Each reference herein to "City" 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 in 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 Dieqo, State of California, located in 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 manner as may be provided by law.
19. Time is of the essence hereof.
20. If any term, provision, covenant or condition hereof or 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 applications 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 llGV1 Page 5 of 7
IN WITNESS WHEREOF, Guarantor has executed this Agreement as of the date set forth below.
LEG0 A/S
Date: By:
Exhibit vtG1t Page 6 of 7
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 vlG1t Page 7 of 7