RES-8692 Approving Execution of Parking Area LeaseRESOLUTION NO. 8692
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
ORANGE APPROVING THE EXECUTION OF A PARKING AREA
LEASE BETWEEN THE MILLS LIMITED PARTNERSHIP, AS
LANDLORD, AND THE CITY OF ORANGE, AS TENANT,
COVERING THE PARKING AREA IN THE SHOPPING CENTER
COMMONLY KNOWN AS THE CITY SHOPPING CENTER, AND
APPROVING A PARKING AREA SUBLEASE BETWEEN THE
CITY OF ORANGE, AS SUBLANDLORD, AND THE MILLS
LIMITED PARTNERSHIP, AS SUBTENANT, COVERING THE
PARKING AREA IN THE SHOPPING CENTER COMMONLY
KNOWN AS THE CITY SHOPPING CENTER
WHEREAS, On September 10, 1996, the City Council of the City of Orange approved the
execution by the Orange Redevelopment Agency (the "Agency") of a Disposition and Development
Agreement (the "DDA") between the Agency and The Mills Limited Partnership, a Delaware limited
partnership (the "Developer"), covering certain real property known as The City Shopping Center (the
Site"); and
WHEREAS, the DDA provides, in part, that a condition of the DDA is the City's agreement
to lease a portion of the Site from the Developer for use as a public parking lot (the "Parking Area")
pursuant to a Parking Area Lease (in which the Developer is the "Landlord" and the City is the
Tenant"), and to sublease such portion back to the Developer pursuant to a Parking Area Sublease (in
which the City is the "Sublandlord" and the Developer is the "Subtenant"); and
WHEREAS, the form of the proposed Parking Area Lease is attached hereto as Exhibit 1, and
the form of the proposed Parking Area Sublease is attached hereto as Exhibit 2. Such Parking Area
Lease and Parking Area Sublease have been presented to and considered by the City Council; and
WHEREAS, the environmental impacts of the proposed development were analyzed in the
Mitigated Negative Declaration 1497-96 and evaluated by the Planning Commission and such
Mitigated Negative Declaration and the mitigation measures described therein were determined to be adequate
and complete;
and WHEREAS, the City Council and the Agency have obtained an analysis of the proposed
Parking Area Lease from GRC Associates, Inc. ("GRC"). Such analysis provides that the average
annual payments of rent on the Parking Area Lease of approximately $450,000 in present value represents
the cost of designating over 3,300 parking spaces for the use of the public without charge and
parking demand from surrounding uses will enjoy the benefits of the public
parking.NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Orange
hereby finds, determines, resolves and orders as
follows:
1-Reso. No.
8692 960904 jar d864-1.
THAT the City Council hereby fmds that the rent to be paid by the City pursuant to the Parking
Area Lease is equivalent to the fair rental value of the City's leasehold interest in the Parking Area.
BE IT FURTHER RESOLVED, that the City Council hereby finds that the rent to be paid by
the Developer pursuant to the Parking Area Sublease is equivalent to the fair reuse value of the Parking
Area, as encumbered by the restriction that the Parking Area be subject to the restriction such property
be used as a public parking lot.
BE IT FURTHER RESOLVED, that the City Council hereby approves the Parking Area Lease
and authorizes the execution of same by the Mayor (or another member of the City Council); provided,
however, minor modifications and corrections may be made thereto prior to its execution as approved
by the City Manager and City Attorney.
BE IT FURTHER RESOLVED, that the City Council hereby approves the Parking Area
Sublease and authorizes the execution of same by the Mayor; provided, however, minor modifications
and corrections may be made thereto prior to its execution as approved by the City Manager and the
City Attorney,
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Reso. No. 8692
960904 jar d864-1.jar
ADOPTED this 10th day of September, 1996.
Y",JOO_S~
Attest:
I hereby certifY that the foregoing Resolution was duly and regularly adopted by the City
Council of the City of Orange at a regular meeting thereof held on the 10th day of September, 1996,
by the following vote:
AYES: COUNCIL MEMBERS: MURPHY, BARRERA, COONTZ, SPURGEON, SLATER
NOES: COUNCIL MEMBERS: NONE
ABSENT: COUNCIL MEMBERS: NONE
ABSTAIN: COUNCIL MEMBERS: NONE
CA~ f-~/..M-
C City Clerk of thllCity of
Orange
3-Reso. No.
8692 960904 jar d864-1.
Exhibit 1
Parking Area Lease
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is dated as of , 19_ by and
between THE MILLS UMITED PARTNERSHIP, a Delaware limited partnership, ("Landlord"), as
landlord, and the CITY OF ORANGE, a municipal corporation ("Tenant"), as tenant.
RECIIAL~
WHEREAS, Landlord a party to a Disposition and Development Agreement dated
September 10, 1996, between the Orange Redevelopment Agency (as "Agency" therein) and The Mills
Limited Partnership, as the Developer therein, concerning that certain real property (the "Property")
located in the City of Orange, County of Orange, State of California, being described in Exhibit 1,
attached hereto and incorporated by reference herein.
WHEREAS, as provided in the DDA, Landlord has agreed to lease to Tenant, and Tenant
has agreed to lease from Landlord, the portion of the Property (the "Parking Site") described in Exhibit
2, attached hereto and incorporated by reference herein,
NOW, THEREFORE, in consideration of the foregoing and of the covenants and
conditions hereinafter set forth, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS; DEMISE OF PREMISES; TITLE; TERM
1.1 Unless the context shall otherwise require, the following terms shall have the meanings
hereinafter set forth:
1.1.1 "Agency" means the Orange Redevelopment Agency.
1.1.2 "City" means specifically the City of Orange in its municipal corporate capacity.
In the event this Lease is assigned by Tenant, any references herein to the "City" shall continue to mean
the City of Orange, and not the assignee or other successor of the City of Orange in its capacity as
Tenant herein.
1.1.3 "Closing of the Project" means the material cessation of business of more than
400,000 square feet of the gross leasable area of the Project, for a period of more than 9 months, after
initially opening for business; provided, however, leasable area shall not be considered "closed" for
purposes of this definition if (i) such leasable area is temporarily closed and is being actively
redeveloped, or (ii) Landlord is actively seeking to reacquire such area pursuant to contractual or legal
rights of Landlord to reacquire such property.
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960830 jar d825-2.jar 11091-00002 Orange RDA -- Mills Corporation Parking Area
1.1.4 "Commencement Date" means the fIrst day of the fIrst Sales and Use Tax Period.
1.1.5 "Completion of the Project" means all Improvements are complete, and Landlord
has recorded a Notice of Completion and 60 days have passed since such recordation and all mechanics
liens have either been paid or discharged by bond or insured over by appropriate title insurance
endorsements. Moreover, "Completion of the Project" shall be deemed to have occurred if the Agency
has issued CertifIcates of Completion for at least 500,000 square feet of entertainment or retail -
businesses,
including restaurants and motion picture theaters, in the Project, and such businesses have opened
for business.1.
1.6 "DDA" means the Disposition and Development Agreement dated September 10,1996,
by and between Landlord and the Agency with respect to the Property.1.
1.7 "Eligible Sales and Use Tax Revenues" means (i) Sales and Use Taxes derived from
tenants or other business operators on the initial 811,909 square feet of gross leasable area on the Property
and allocated to and received by the City pursuant to the Uniform Local Sales and Use Tax Law,
commencing with California Revenue and Taxation Code Section 7200 et seq. , as amended, minus ii)
any Excluded Sales Tax Revenues.1.
1.8 "Excluded Sales Tax Revenues" means the sum of Sales and Use Taxes generated by
tenants on the Property who had other businesses within the Agency's Southwest, Northwest, and Tustin
Project Areas, and who close such businesses within a 12 month period before or after opening for
business on the Property, except where such closure was beyond the control of the tenant, such as the
termination of such tenant's lease for reasons beyond the control of the tenant; provided, however,if
any premises that were so vacated by such business operator are later leased to another tenant or business
operator, then the amount of Excluded Sales Tax Revenues shall be reduced by the amount of Sales
and Use Taxes thereafter from time to time received by the City from the original premises of such
business operator, such reduction not to exceed the amount of Sales and Use Taxes received by the
City from the business operator on account of the business operated from the Property.1.
1. 9 "Event of Default" shall have the meaining ascribed to such term in Article 9 of this
Lease.1.
1.10 "Expiration Date" means the date upon which this Lease will expire. The Expiration
Date shall be twelve (12) years after the Commencement Date.1.
1.11 "Grand Opening Date" means the date on which entertainment or retail businesses,
including restaurants and motion picture theaters, cumulatively operating at least 500,000 square
feet of gross leasable area, have opened for business.1.
1.12 "Hazardous Materials" shall include, but not be limited to, substances defmed as "
hazardous substances," "hazardous materials," "pollutant or contaminant," "imminently hazardous chemical
substance or. mixture," "hazardous air pollutant," "toxic pollutant," "hazardous waste,"extremely
hazardous waste" or "toxic substances" in any of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, 42 U.S.C. ~9601, et seq.; the 2-
960830
jar dB25-2.jar 11091-00002 Orange RDA -- Mills Corporation parking Area Lease
Hazardous Materials Transportation Act, 49 U.S.C. ~1801, et seq.; The Resource Conservation and
Recovery Act, 42 U.S.C ~6901, et seq.; and those substances defined as "hazardous substances" in
25316 of the California Health & Safety Code; and in the regulations adopted and publications
promulgated pursuant to said laws ("Hazardous Materials Laws").
1.1.13 "Improvements" means the commercial and public improvements to be
constructed by Landlord which will constitute the Project as described in the Scope of Development.
1.1.14 "Landlord" means The Mills Limited Partnership, a Delaware limited partnership.
1.1.15 "Parking Area Sublease" means that certain sublease being executed concurrently
herewith between the City of Orange, as Sublandlord, and The Mills Limited Partnership, as Subtenant,
covering the Parking Site.
1.1.16 "Project" means the development of the Improvements on the Property in accor-
dance with the Scope of Development and the operation thereof.
1.1.17 "Restrictive Covenant" means that certain Restrictive Covenant dated
19 , and recorded on , 19 as Instrument No.
Official Records, Orange County, California, as from time to time amended.
1.1.18 "Sales and Use Tax Period" means a 12 month period, commencing on the first
day of the first full quarter as designated by the State Board of Equalization in its reports to the City
which follows the Grand Opening Date, and each 12 month period thereafter.
1.1.19 "Sales and Use Taxes" means the taxes derived from the Property and allocated
to and received by the City pursuant to the Uniform Local Sales and Use Tax Law, commencing with
California Revenue and Taxation Code Section 7200 et seq., as amended.
1.1.20 "Tenant" means the City of Orange, a municipal corporation.
1.1.21 "Term" or "Term of this Lease" shall have the meaning set forth in Section
1.2, 1.3 hereof.
All other terms used herein with initial capital letters, which are not otherwise defined,
shall have the same meaning ascribed to them in the DDA.
1.2 Landlord hereby leases the Parking Site to Tenant, and Tenant leases the Parking Site from
Landlord, for the Term and subject to the terms, covenants, agreements and conditions contained herein.
1.3 Subject to the terms, covenants, agreements and conditions contained herein, the Term of
this Lease shall commence on the first day of the first Sales and Use Tax Period following the Grand
Opening Date, and shall expire on the Lease Expiration Date, Notwithstanding the foregoing, this
Lease (and Tenant's obligation to pay any sums of Gross Rent) shall terminate upon the Closing of the
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960830 jar d825-2.jar 11091-00002 Orange RDA -- Mills Corporation Parking Area
Project, and, in such event, Tenant shall pay any Gross Rent accrued through the date of such
termination,
1.4 It is a condition of this Lease that following the Commencement Date, retail businesses
shall continuously and uninterruptedly operate during ordinary business hours from the Property.
Therefore, in the event of the Closing of the Project, Tenant may terminate this Lease and the Parking
Area Sublease.
ARTICLE 2
RENT AND OTHER PAYMENTS
2.1 Tenant covenants to pay to Landlord gross rent ("Gross Rent") for the Parking Site,
throughout the term of this Lease, determined as follows:
2.1,1 With respect to any Sales and Use Tax Period that the Eligible Sales and Use Tax
Revenues received by Tenant after the Commencement Date is less than or equal to the Sales Tax
Breakpoint for the applicable Sales and Use Tax Period, as set forth in Exhibit 3 hereto, the Gross Rent
shall be an amount equal to thirty-three percent (33%) of the Eligible Sales and Use Tax
Revenues received by Tenant for such Sales and Use Tax
Period.2.1.2 With respect to any Sales and Use Tax Period that the Eligible Sales and Use
Tax Revenues received by Tenant after the Commencement Date exceeds the Sales Tax Breakpoint for
the applicable Sales and Use Tax Period, as set forth in Exhibit 3 hereto, the Gross Rent shall be an
amount equal to the sum
of:A) thirty-three percent (33 %) of the Sales Tax Breakpoint applicable to such
Sales and Use Tax
Period, plus B) eighty percent (80%) of the amount by which the Eligible Sales and
Use Taxes Revenues received by Tenant exceeds the Sales Tax Breakpoint applicable to such Sales
and Use
Tax Period.If, for any Sales and Use Tax Period, any tenant or business at the Property
fails timely to file all sales and use tax returns for the businesses on the Property, or fails timely to pay
the amounts due as shown thereon for Sales and Use Taxes, then Gross Rent calculated on account of
such tenant shall not be due and payable until ninety (90) days after such reports for such Sales and Use
Tax Period are filed, and the Sales and Use Taxes on account of such Sales and Use Tax Period are paid
by such tenant or business. Landlord shall require all tenants and other operators of businesses subject
to Sales and Use Taxes on the Property to deliver copies of their Sales and Use Tax Returns to Tenant (
and to the City, if the City has assigned
this Lease).2.2 Notwithstanding the provisions of Section 2.1 hereof, if the basis of sales
tax distribution is changed by the State of California from the current basis (which provides for the distribution
to the City of an amount equal to 1 % of the retail sales occurring in the City that are subject to
the imposition of the Uniform Local Sales and Use Tax Law commencing with Section 7200 of the
California
Revenue 4-960830 jar d825-2.jar 11091-00002 Orange RDA -~ Mills Corporation
And Taxation Code), resulting in the City receiving less Sales and Use Taxes than were received by
the City prior to such new methodology, then the Gross Rent payable for each Sales and Use Tax
Period shall be reduced in the same proportion as the City's share of Sales and Use Tax revenues are
reduced for such period, as compared to the Sales and Use Taxes distributed to the City prior to the
change in the law. If California law should later provide that the City is entitled to receive more than
such 1 % amount, then the calculation of Gross Rent on this Lease shall assume that the City is entitled
to receive only 1 % of the retail sales.
2.3 Upon Tenant's cumulative payment of Gross Rent by Tenant in an amount equal to a
present discounted value of $6,300,000 (discounted at an 8% discount rate from the Commencement
Date), this Lease and Tenant's obligation for further Gross Rent shall be deemed automatically
terminated. Tenant and Landlord agree to execute at that time such documents as may be necessary to
memorialize such terminations; provided, however, Sections [2.11 and 2.12] of the DDA provide for
an adjuslinent in the Gross Rent payable by Tenant under certain conditions, and such $6,300,000
amount is subject to reduction on the terms and conditions set forth in said Sections [2.11 and 2.12]
of the DDA, the terms and provisions of which are incorporated by reference herein as though set forth
in full. For reference purposes, attached hereto as Exhibit 4 is a copy of the relevant pages of the DDA
containing said Sections [2.11 and 2.12].
2.4 Gross Rent shall be payable quarterly, in arrears, within 60 days after the later of (i) the
City's receipt from the State Board of Equalization of the applicable reports for the applicable Sales and
Use Tax Period and (ii) the City's receipt from the State Board of Equalization of the City's share of
the Sales and Use Taxes paid by the tenants (the "Rent Payment Date"). If subsequent to the delivery
of a Gross Rent payment there is a need for any adjustment, credit, refund, reduction, or additional
charge, due to an amendment to the report from the tenant, or charge from the State Board of
Equalization, or due to the Eligible Sales and Use Taxes exceeding the Sales Tax Breakpoint in any
Sales and Use Tax Period, then the parties shall make the appropriate adjustment between themselves
by means of a refund to Tenant or an additional rent payment to Landlord, as appropriate.
Notwithstanding the foregoing, Gross Rent shall not commence to accrue until the first day of the first
Sales and Use Tax Period and shall cease to accrue on the Lease Expiration Date. If there shall be any
Gross Rent accrued prior to the termination of the Lease that is unpaid as of such termination date,
Tenant shall be liable to pay the Gross Rent accrued on the next following day that would have been
a Rent Payment Date. Landlord acknowledges that such rent is not payable by Tenant directly from
such sales and use taxes, and, at Tenant's option, such Gross Rent may be paid from any legally
available funds of Tenant as selected by Tenant.
2.5 Landlord shall obtain and provide to Tenant true and correct copies of the reports filed by
the tenants with the State Board of Equalization in order to allow Tenant to determine and verifY the
amount of Sales and Use Taxes paid by the tenants on account of sales from the Property and thereby
determine the amount of the Gross Rent payable by Tenant.
2,6 Landlord acknowledges that the Gross Rent is based upon Sales and Use Tax revenues
received by Tenant only from operators or tenants occupying the initial 811,909 square feet of gross
leasable area, and any Sales and Use Taxes realized by the City from operators or tenants from any area
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960830 jar d82S-2.jar 11091-00002 Orange RDA -- Mills Corporation Parking Area
other than the initial 811,909 square feet of gross leasable area shall be excluded from the determination
of the Gross Rent payable by Tenant under this Lease.
To the extent that the rental provisions described herein differ from the rental provisions
described in the DDA, the rental provisions of the DDA shall control.
ARTICLE 3
CONDITIONS PRECEDENT TO RENTAL PAYMENTS
Tenant's obligation to make any Gross Rent payments under this Lease, shall be subject to
satisfaction of the following conditions precedent within the time period described therefor in each
subsection:
3.1 Completion of the Project. Landlord shall have achieved Completion of the Project by the
date set forth therefor in the Schedule of Performance attached to the DDA.
3.2 No Defaults. There shall not be any Event of Default on the part of Landlord under the
DDA, or any other default by Landlord under any other agreement with Tenant or the Agency in which
the cure period has expired.
3.3 Mechanics Liens. The Improvements, including all public improvements to be paid for or
acquired by the Agency pursuant to the DDA, shall be free of mechanics' and materialmen's liens and
claims or any such liens shall be handled or bonded over in customary fashion.
3.4 Proof of Insurance, Landlord shall have provided proof of insurance conforming to Section
8.1] of the DDA.
3.5 Pavment of Prooertv Taxes. No ad valorem property taxes or assessments legally and
validly assessed with respect to the Property shall be delinquent at the time of delivery of any payment
of Gross Rent, unless Landlord is contesting or protesting such taxes or assessments in accordance with
the manner provided by law.
ARTICLE 4
TITLE TO IMPROVEMENTS
4.1 The Improvements which are constructed by Landlord shall be and remain the property
of Landlord during the Term.
ARTICLE 5
USE
5.1 Landlord and Tenant shall, throughout the term hereof, use the Parking Site as a public
parking lot, jointly in conjunction with Landlord's use thereof as a parking lot for the adjoining
shopping center improvements. No portion of the Parking Site shall, nor shall any parking space
therein, be reserved for the sole or exclusive use of Landlord or for any owner, tenant, employee,
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960830 jar d825-2.jar 11091-00002 Orange RDA -- Mills Corporation Parking Area
agent, supplier, subtenant, licensee, invitee or customer, except for handicapped persons or as otherwise
required by applicable laws, rules and regulations, whether by striping, markers, signs, barriers or any
other means unless otherwise approved by Tenant; provided that, nothing contained herein shall restrict
the right of Landlord:
5,1.1 to adopt reasonable rules and regulations for the use of the Parking Site;
5.1.2 to temporarily interrupt the use of such parking spaces to make repairs and
replacements over or under the parking areas, or for emergencies;
5.1.3 to use portions of the Parking Site for the storage and parking of maintenance
vehicles and equipment; and
5.1.4 to conduct sidewalk sales which are in accordance with applicable laws.
ARTICLE 6
ASSIGNMENT AND SUBLETTING
6.1 Except as set forth in this Section, Tenant shall not assign, sublet, hypothecate, pledge,
alienate or otherwise transfer, whether directly or indirectly, voluntarily or by operation of law, any
interest in this Lease and/or the Parking Site without the prior written consent of Landlord, which
consent may be granted or withheld in the sole and absolute discretion of Landlord. Notwithstanding
the foregoing, (a) Tenant, concurrently herewith, is entering into the Parking Area Sublease, and
Landlord hereby consents thereto, and (b) Tenant may assign its rights hereunder to another public
entity without the prior consent of Landlord, Drovided that Tenant's obligations under Article 2 hereof
shall remain in full force and effect notwithstanding such permitted assignment. All rights acquired
under any such subletting or assignment shall be subject to each and all of the covenants, conditions and
restrictions set forth in this Lease and to all rights and interests of Landlord herein.
ARTICLE 7
REPAIRS, ALTERATIONS, IMPROVEMENTS AND REPLACEMENTS
7.1 Landlord shall, at its sole cost and expense, at any time and from time to time during the
Term, make any alterations, improvements or replacements in, on, to or of the Improvements, in whole
or in part, which may be necessary or desirable to keep the Parking Site in good and safe condition and
repair. Landlord shall perform (or'cause to be performed) and comply with, at no expense to Tenant,
all use, operation and maintenance requirements of the Restrictive Covenant and the DDA, the terms
and provisions of which are hereby incorporated herein by this reference as though set forth in full.
ARTICLE 8
DAMAGE AND DESTRUCTION
8.1 If the Improvements are damaged or destroyed by fire or other casualty, Landlord shall have
the prerogative, at its sole discretion, either to (a) repair or rebuild the Improvements (or any portion
of them) and diligently pursue the same to completion, or (b) not to repair or rebuild the Improvements
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960830 jar dB25-2.jar 11091-00002 Orange RDA -- Mills Corporation Parking Area
or any portion of them). Landlord shall, by written notice to Tenant, make its election whether to
repair and rebuild the Improvements within one hundred twenty (120) days after the date of the fIre or
other casualty. In the event that Landlord elects not to repair or rebuild, this Lease shall terminate as
of the date of the fIre or other casualty and Tenant shall pay any Gross Rent accrued through the date
of termination. The provisions of the Lease, including this Section, constitute an express agreement
between Landlord and Tenant with respect to any and all damage to, or destruction of, all or any part
of the Improvements constituting the Parking Site, and Landlord and Tenant agree that Sections 1932(2)
and 1933(4) of the California Civil Code shall have no application to this Lease or any damage or
destruction to any part of the Improvrnents constituting the Parking Stie,
ARTICLE 9
DEFAULT
9,1 A failure to perform any provision, covenant or warranty of the DDA, this Lease or the
Parking Area Sublease on the part of Tenant or Landlord to be performed, or any breach or Default of
any provision of the DDA, shall be a default hereunder. If any default occurs, then the non-
defaulting party shall serve written notice of such default upon the defaulting party. The defaulting party
shall commence and diligently thereafter pursue the curing of said default within 30 days after receipt of
a notice of such default from the non-defaulting party specifYing the default; provided, however,
if such cure cannot reasonably be effected with such 30 day period, such failure shall not be an
Event of Default so long as the defaulting party promptly (in any event, within 30 days after such notice
is given)commences a cure, and thereafter diligently prosecutes such cure to completion, and such
cure is completed in any event within 180 days after the notice of default. If the defaulting party does
not so cure any default in accordance with, and within the cure periods specifIed in, this Section
after receipt of a notice of default by the non-defaulting party, then an Event of Default shall be
deemed to have occurred. Upon the occurrence of an Event of Default, the non-defaulting
party may pursue its remedies in accordance with this Lease for
such Event of Default.9.2 Upon the occurrence of an Event of Default by
Tenant, including, without limitation,Tenant's failure to make any payment of Gross Rent as required herein in the amount
and by the date provided herein, or in the event of any other default by Tenant which is not
cured within the cure periods provided in Section 9.1, then Landlord, may either: (a) institute an action
at law to seek damages and/or in equity to seek mandamus or specifIc performance of the terms of
this Lease, or (b)terminate this Lease by delivering written notice thereof to Tenant. In no
event shall Tenant's obligation to pay Gross Rent be accelerated or made payable
in a lump sum.9.3 Upon the occurrence of an Event of Default by Landlord, Tenant
may terminate this Lease and the Parking Area Sublease, in which case Tenant (and the City, if applicable)
shall be released from any and all further obligations to Landlord. In addition, Tenant shall be entitled
to all other actual _damages (but not consequential damages) and remedies available at law or
in equity, including specifIc performance; provided, however, that Tenant shall not have the right to enjoin a
Transfer of the Site as defmed in the DDA) but merely to receive actual damages (but
not consequential damages) incurred by Tenant for a breach of Section 7.1 of the DDA, nor shall Landlord be required
to refund to Tenant any amounts of Gross Rent theretofore paid on this Lease. Except as otherwise
expressly stated in this Lease, the rights and remedies of the parties are cumulative, and the exercise by either
party
of one or 8-960830 jar d825~2.jar 11091-00002 Orange RDA -- Mills
more of such rights or remedies shall not preclude the exercise by it, at the same time or different
times, of any other rights or remedies for the same default or any other default by the other party.
9.4 Any failures or delays by either 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, or deprive either
such party of its rights to institute and maintain any actions or proceedings which it may deem necessary
to protect, assert or enforce any such rights or remedies.
9.5 Upon any event in which the DDA is terminated, this Lease and the Parking Area Sublease
shall likewise terminate.
ARTICLE 10
ESTOPPEL CERTIFICATES
10,1 Landlord and Tenant shall, respectively, at any time and from time to time within fifteen
15) days after written request by the other, deliver to the requesting party or to a prospective
purchaser, mortgagee or holder of a mortgage, an executed and acknowledged statement in writing
certifYing (a) that this Lease is unmodified and in full force and effect (or if there has been any
modification[s] thereof that the same is in full force and effect as modified, and stating the nature of
the modification or modifications); (b) that to its knowledge the requesting party is not in default under
this Lease (or if any such default exists, the specific nature and extent thereof); and (c) the date to
which Gross Rent has been paid in advance, if any.
ARTICLE 11
FORCE MAJEURE
Section 11.1 In addition to specific provisions of this Lease, delay in performance by any party
hereunder shall not be a default where delays or defaults are due to war; insurrection; strikes; lock-
outs;riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics;
quarantine restrictions; freight embargoes; shortages of transportation or materials; unusually severe weather;
acts of civil disobedience; or any other causes (other than financial inability) beyond the reasonable
control or without the fault of the party claiming an extension of time to perform (collectively, "
Force Majeure"). An extension of time for any such cause shall only be for the period of the delay,
which period shall commence to run from the time of the commencement of the cause, if written notice by
the party claiming such extension is delivered to the other party within 15 days after commencement of
the cause, and shall otherwise commence to run from the date of delivery of such
notice.ARTICLE
12
NOTICES Notices, demands and communications between Landlord and Tenant shall be
deemed sufficiently given if (i) delivered personally, (ii) dispatched by registered or certified mail,
postage prepaid, return receipt requested, or (iii) sent by nationally-recognized reputable
overnight delivery service to the principal offices of Landlord or Tenant as set forth below. Such written
notices, demands and communications may be sent in the same manner to such other addresses or to such
other
address 9-960830 jar dB25-2.jar 11091-00002 Orange RDA -- Mills corporation
as any party may from time to time designate by mail as provided in this Section, and shall be deemed
received upon delivery or refusal of delivery, if delivered personally, within three (3) business days
after deposit of same in the United States mail, if mailed, or one (1) business day after deposit of same
with a nationally recognized reputable overnight delivery service if sent by such a delivery service.
To Landlord: The Mills Corporation
1300 Wilson Boulevard
Suite 400
Arlington, Virginia 22209
Attn: James Dausch
and with copies to: The Mills Corporation
1300 Wilson Boulevard
Suite 400
Arlington, Virginia 22209
Attn: General Counsel
and
The Mills Corporation
6170 West Grand Avenue
Gurnee, Illinois 60031
Attn: Steve Jacobsen
and
Rudnick & Wolfe
203 North LaSalle Street
Suite 1800
Chicago, Illinois 60601
Attn: Jeffrey S. Arnold
To Tenant: City of Orange
c/o Orange Redevelopment Agency
230 East Chapman Avenue
Orange, California 92866
Attn: Executive Director
an with a copy to: Richards, Watson & Gershon
333 South Hope Street
38th Floor
Los Angeles, California 90071
Attn: Jeffrey A. Rabin
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960830 jar d825-2.jar 11091-00002 Orange RDA -- Mills Corporation Parking Area
ARTICLE 13
COSTS AND ATTORNEYS' FEES
13.1 In the event that any action or proceeding is brought by Landlord against Tenant or Tenant
against Landlord arising out of this Lease of any dispute under the terms of this Lease, then and in that
event the prevailing party in such action or proceeding shan be entitled to recover its costs and
reasonable attorneys' fees, charges and disbursements in connection with such action or proceeding.
ARTICLE 14
JOINDER IN INSTRUMENTS
14.1 Landlord and Tenant respectively agree that upon request of the other each shan promptly
join in any instruments of conveyance, dedication, grant of easement or license, or other instrument
as shall be reasonably necessary or convenient to provide public utility service and/or public roadway
access to the Parking Site or any portion or portions thereof.
ARTICLE 15
MISCELLANEOUS
15.1 If any term or provision of this Lease or the application thereof to any persons or circum-
stances shall to any extent be invalid and unenforceable, the remainder of this Lease, or the application
of such term or provision to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid
and shan be enforced to the extent permitted by law.
15.2 The headings to the various Articles and Sections of this Lease have been inserted for
convenient reference only and shall not to any extent have the effect of modifYing, amending or
changing the expressed terms and provisions of this Lease.
15.3 Time is of the essence of this Lease.
15.4 This Lease may be executed in counterparts, each of which shan be deemed an original
and an of which when taken together shall constitute one and the same instrument.
15.5 Whenever under this Lease provision is made for either party's securing the consent or
approval of the other, such consent or approval shall not be unreasonably withheld or delayed, except
as may be expressly set forth herein to the contrary.
15.6 Landlord and Tenant covenant by and for themselves, their successors and assigns, and
an persons claiming under or through each of them, and this Lease is made and accepted upon and
subject to the fonowing conditions:
That there shall be no discrimination against or segregation of any person
or group of persons on account of race, color, creed, religion, sex,
marital status, ancestry or national origin in the leasing, subleasing,
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960830 jar d82S-2.jar 11091-00002 Orange RDA -- Mills Corporation Parking Area
transferring, use, occupancy, tenure or enjoyment of the land herein
leased nor shall the lessee itself, or any person claiming under or through
it, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants or vendees in the
land herein leased."
15,7 Landlord represents and warrants that both Landlord is a limited partnership, duly
authorized and validly existing and in good standing under the laws of the State of Delaware and
authorized to do business in the State of California, and has all requisite power and authority to carry
on its business as now and whenever conducted, and to enter into and perform its obligations under this
Lease and the DDA. Landlord further represents and warrants that Landlord has complied with all laws
and regulations concerning its organization, existence and ability to transact business in the State of
California, and that Landlord has the right and power to own and develop the Property as contemplated
in this Lease and in the DDA, and that Landlord has, or at all appropriate times shall have properly
obtained, all permits, licenses and approvals necessary to construct, occupy, operate and market the
improvements on the Property (as the case may be) and in so doing has, or shall have (as appropriate),
complied with the plans and specifications for construction and all other applicable statutes, laws,
regulations and ordinances (as the case may be).
15.8 Landlord represents that Landlord has full right, power and authority to execute and
deliver this Lease, as well as the Parking Area Sublease and the DDA, and to perform the undertakings
of Landlord contained in this Lease, the Parking Area Sublease and the DDA. This Lease, the Parking
Area Sublease, and the DDA constitute valid and binding obligations of Landlord which are legally
enforceable in accordance with their terms.
15.9 Landlord represents and warrants that none of the undertakings of Landlord contained in
this Lease, the Parking Area Sublease, or the DDA violates any of the plans and specifications for
construction, or any applicable statute, law, regulation or ordinance or any order or ruling of any court
or governmental entity, or conflicts with, or constitutes a breach or default under, any agreement by
which Landlord is, or the Property and the improvements thereon, are bound or regulated.
15.10 Landlord represents and warrants that all financial information prepared by Landlord and
information delivered to Tenant, including, without limitation, information relating to Landlord, The
Mills Corporation, the Property, and the improvements thereon, fairly and accurately represent such
financial condition in all material respects as of the date such financial information was prepared. No
material adverse change in such financial condition has occurred as of the date of this Agreement from
that disclosed in such financial information and as of the date of Tenant's delivery of this Lease.
15.11 Except as disclosed on Exhibit 5 attached hereto and incorporated herein by this
reference, there is no litigation, action, suit, or other proceeding pending or threatened against
Landlord, the Property, or the Project which may in any manner whatsoever substantially adversely
affect the validity, priority, or enforceability of this Lease or the construction, use, occupancy or
operation of the Project by or on behalf of Landlord.
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960830 jar d825-2.jar 11091-00002 Orange RDA -- Mills Corporation Parking Area
15.12 To the best of Landlord's knowledge, Landlord is not in violation of any statute, law,
regulation or ordinance, or of any order of any court or governmental entity the effect of which would
prohibit Landlord from performing its obligations hereunder or under the DDA with respect to the
Property.
IN WITNESS WHEREOF, the parties hereto have entered into this Lease as of the day
and year first above written.
Tenant:Landlord:
CITY OF ORANGE, a municipal corporation THE MILLS LIMITED PARTNERSHIP, a
Delaware limited parl11ership
By:
By: The Mills Corporation, a Delaware
corporation, its general partner
Mayor
ATTEST:By:
President
City Clerk By:
Secretary
13 -960830
jar d82S-2.jar 11091-00002 Orange RDA -- Mills Corporation Parking Area Lease
Exhibit 2
Parking Area Sublease
THIS PARKING AREA SUBLEASE (this "Sublease") is made and entered into as of
the _ day of 199_, by and between THE CITY OF ORANGE, CALIFORNIA, a
municipal corporation (hereinafter called "Sublandlord"), and THE MILLS LIMITED
PARTNERSHIP, a Delaware limited parl11ership (hereinafter called "Subtenant").
W I T N E S S E T H:
WHEREAS, by that certain Parking Area Lease dated , 19_ (hereinafter
called the "Prime Lease"), THE MILLS LIMITED PARTNERSHIP, a Delaware limited
partnership ("Master Lessor"), leased to Sublandlord that certain real property as generally
depicted on Exhibit "A" attached hereto and made a part hereof (the "Parking Area"), for a term
commencing on the first day of the first Sales and Use Tax Period following the Grand Opening
and ending on the Lease Expiration Date; and
WHEREAS, pursuant to the consent of the Master Lessor, Subtenant desires to sublease
from Sublandlord, and Sublandlord desires to sublease to Subtenant, the Parking Area subject
to the Prime Lease (hereinafter called the "Premises"), all upon the terms and subject to the
conditions and provisions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and
promises contained herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby mutually acknowledged, Sublandlord and Subtenant hereby agree as follows:
1. Definitions. All capitalized terms not otherwise defined in this Sublease shall
have the meanings ascribed to them in the Prime Lease or, if not defined in the Prime Lease,
in that certain Disposition and Development Agreement dated as of September 10, 1996, by and
between the Master Lessor and Subtenant (the "DDA"). The Premises is the "Parking Area"
defined in the DDA,
2. Demise: Use. Sublandlord hereby leases to Subtenant and Subtenant hereby leases
from Sublandlord the Premises for the term and rental and upon the other terms and conditions
hereinafter set forth, to be used and occupied by Subtenant solely for the purposes set forth in
Section 5 and for no other purpose.
3. Tenn. The term ("Term") of this Sublease shall commence (the "Commencement
Date") on the first day of the first Sales and Use Tax Period following the Grand Opening and
shall terminate on the Lease Expiration Date. Subtenant and Sublandlord agree to execute a
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960904 jar d849-2.jar 11091-00002 Mills -- City of Orange Parking Area
supplement or amendment to this Sublease setting forth the dates of the Term as soon as such
dates are determined.
4. Rent. Subtenant shall pay to Sublandlord a total rental ("Rent") for the Premises
for the entire Term of One Dollar ($1.00), which shall be paid upon the execution of this
Sublease. No other charges or sums shall be due from Subtenant to Sublandlord or to Master
Lessor pursuant to this Sublease.
5. Use Subtenant shall, throughout the term hereof, use the Premises as a public
parking lot, jointly in conjunction with Subtenant's use thereof as a parking lot for the adjoining
shopping center improvements. No portion of the Premises shall, nor shall any parking space
therein, be reserved for the sole or exclusive use of Declarant or for any owner, tenant,
employee, agent, supplier, subtenant, licensee, invitee or customer, except for handicapped
persons or as otherwise required by applicable laws, rules and regulations, whether by striping,
markers, signs, barriers or any other means unless otherwise approved by Sublandlord; provided
that, nothing contained herein shall restrict the right of Subtenant:
i) to adopt reasonable rules and regulations for the use of the Premises;
ii) to temporarily interrupt the use of such parking spaces to make repairs and
replacements over or under the parking areas, or for emergencies;
iii) to use portions of the Premises for the storage and parking of maintenance
vehicles and equipment; and
iv) to conduct sidewalk sales which are in accordance with applicable laws.
Subtenant, in the use, occupation, control and enjoyment of the Premises, shall comply with all
applicable requirements of all applicable Governmental Requirements.
6. Condition of Premises. Subtenant's taking possession of the Premises shall
be conclusive evidence as against Subtenant that the Premises were in good order and satisfac-
tory condition when Subtenant took possession.
7. Maintenance of the Premises. Throughout the Term hereof, Subtenant shall, at
Subtenant's sole cost and expense, keep and maintain the Premises, or cause the Premises to be
kept and maintained, in a good and safe condition and repair, and in compliance with all
maintenance standards required by the DDA and the Restrictive Covenant. Tenant shall
adequately light, secure and protect persons or property on the Premises in accordance with
customary industry standards,
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960904 jar d849-2.jar 11091-00002 Mills -- Cily of Orange Parking Area
8. Taxes. Subtenant shall pay, or cause to be paid, prior to delinquency: (a) all
taxes, assessments, levies, fees, possessory interest taxes, water and sewer rents and charges,
and all other governmental charges, general and special, ordinary and extraordinary, and
whether or not the same shall have been within the express contemplation of the parties hereto,
together with any interest and penalties thereon, which are, at any time, imposed or levied upon
or assessed against the Premises, and all charges for water, gas, light, heat, telephone,
electricity, power and other utility and communications services rendered or used on or about
the Premises.
9. The Prime Lease.
a) This Sublease and all rights of Subtenant hereunder and with respect to the
Premises are subject to the terms, conditions and provisions of the Prime Lease.
Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect
to the Premises, all of Sublandlord's obligations, covenants, agreements and liabilities
under the Prime Lease and all terms, conditions, provisions and restrictions contained
in the Prime Lease except for the payment of "Rent" (as that term is defined in the Prime
Lease).
b) Subtenant shall not do anything or suffer or permit anything to be done
which could result in a default under the Prime Lease or permit the Prime Lease to be
cancelled or terminated.
c) Notwithstanding anything contained herein or in the Prime Lease which
may appear to be to the contrary, Sub landlord and Subtenant hereby agree that in the
event of any conflict between the terms, conditions and provisions of the Prime Lease
and of this Sublease, the terms, conditions and provisions of this Sublease shall, in all
instances, govern and control.
d) It is expressly understood and agreed that Sublandlord does not assume and
shall not have any of the obligations or liabilities of Master Lessor under the Prime Lease
and that Sublandlord is not making the representations or warranties, if any, made by
Master Lessor in the Prime Lease. Sublandlord shall not be liable in damages, nor shall
rent abate hereunder, for or on account of any failure by Master Lessor to perform the
obligations and duties imposed on it under the Prime Lease.
e) Nothing contained in this Sublease shall be construed to create privity of
estate or contract between Subtenant and Master Lessor, except the agreements of
Subtenant in Sections 13 and 14 hereof in favor of Master Lessor, and then only to the
extent of the same.
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960904 jar d849-2.jar 1 to91-OOOO2 Mills -- Cily of Orange Parking Area
10. Default.
a) A failure to perform any provision, covenant or warranty of the DDA, this
Sublease or the Parking Area Lease on the part of Subtenant or Sublandlord to be performed,
or any breach or Default of any provision of the DDA, shall be a default hereunder. If any
default occurs, then the non-defaulting party shall serve written notice of such default upon
the defaulting party. The defaulting party shall commence and diligently thereafter pursue
the curing of said default within 30 days after receipt of a notice of such default from the
non-defaulting party specifYing the default; provided, however, if such cure cannot reasonably
be effected with such 30 day period, such failure shall not be an Event of Default so long as
the defaulting party promptly (in any event, within 30 days after such notice is given)
commences a cure, and thereafter diligently prosecutes such cure to completion, and such cure is
completed in any event within 180 days after the notice of default. If the defaulting party does not so
cure any default in accordance with, and within the cure periods specified in, this Section after
receipt of a notice of default by the non-defaulting party, then an Event of Default shall be
deemed to have occurred. Upon the occurrence of an Event of Default, the non-
defaulting party may pursue its remedies in accordance with this Lease for such
Event of Default.b) Upon the occurrence of an Event of Default by Sublandlord,
then Subtenant may either: (a) institute an action at law to seek damages and/or in equity to
seek mandamus or specific performance of the terms of this Lease, or (b) terminate this
Sublease by delivering written notice
thereof to Sublandlord.c) Upon the occurrence of an Event of Default by Subtenant,
Sublandlord may terminate this Sublease, the DDA, and the Parking Area Lease, in which case
Sublandlord shall be released from any and all further obligations to Subtenant. In addition,
Subtenant shall be entitled to all other actual damages (but not consequential damages) and
remedies available at law or in equity, including specific performance; provided, however, that
Sublandlord shall not have the right to enjoin a Transfer of the Site (as defined in the DDA) but
merely to receive actual damages (but not consequential damages) incurred by Sublandlord for a
breach of Section 7,1 of the DDA, nor shall Subtenant be required to refund to Sublandlord any
amounts of Gross Rent theretofore paid on the Parking Area Lease. Except as otherwise expressly
stated in this Sublease, the rights and remedies of the parties are cumulative, and the exercise
by either party of one or more of such rights or remedies shall not preclude the exercise by it, at
the same time or different times, of any other rights or remedies for the same default or any
other default by
the other party,d) Any failures or delays by either 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, or deprive either such party of its rights to institute and maintain any actions
or proceedings which it may deem necessary to protect, assert or enforce any such
rights
or remedies.4-960904 jar d849-2.jar 11091-00002 Mills -- CiIy of
e) Upon any event in which the DDA is terminated, this Sublease and the Parking Area
Lease shall likewise terminate.
11. Nonwaiver. Failure of Sublandlord to declare any default or delay in taking any
action in connection therewith shall not waive such default. No receipt of moneys by
Sublandlord from Subtenant after the termination in any way of the term or of Subtenant's right
of possession hereunder or after the giving of any notice shall reinstate, continue or extend the
term or affect any notice given to Subtenant or any suit commenced or judgment entered prior
to receipt of such moneys.
12. Cumulative Ril!hts and Remedies. All rights and remedies of Sublandlord and
Subtenant under this Sublease shall be cumulative and none shall exclude any other rights or
remedies allowed by law.
13. Waiver of Claims and Indemnitv.
a) Subtenant hereby releases and waives any and all claims against Master
Lessor and Sublandlord and each of their respective officers, directors, partners, agents
and employees for injury or damage to person, property or business sustained in or about
the Premises by Subtenant other than by reason of the gross negligence or wilful
misconduct of Master Lessor or Sublandlord; but excluding any case which would render
this release and waiver void under law.
b) Subtenant agrees to indemnify, defend and hold harmless Master Lessor,
Sublandlord and each of their respective officers, directors, partners, agents and
employees, from and against any and all claims, demands, costs, expenses and liabilities
of every kind and nature, including reasonable attorneys' fees and litigation expenses,
arising from Subtenant's use and occupancy of the Premises or from any act or neglect
of Subtenant or its agents, officers, employees, or servants in or about the Premises, or
any other event occurring in, on or about the Premises (other than to the extent arising
as a result of Sublandlord's or Master Lessor's gross negligence or to the extent of any
wilful misconduct of Sublandlord or Master Lessor, and any matter which Sublandlord
or Master Lessor is not permitted by statute to waive).
14, Waiver of Subrol!ation. Anything in this Sublease to the contrary notwith-
standing, to the extent permitted by law, Sublandlord and Subtenant each hereby waive any and
all rights of recovery, claims, actions or causes of action against the other and the officers,
directors, partners, agents and employees of each of them in connection with this Sublease, and
Subtenant hereby waives any and all rights of recovery, claims, actions or causes of action
against Master Lessor and its agents and employees, in each case for any loss or damage that
may occur to the Premises, or any personal property of any person thereon, by reason of fire,
the elements or any other cause insured against under valid and collectible fire and extended
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960904 jar d849-2.jar 11091-00002 Mills -- CiIy of Orange Parking Area
coverage insurance policies, regardless of cause or origin, including negligence, except in any
case which would render this waiver void under law, to the extent that such loss or damage is
actually recovered under such insurance policies.
15. Brokeral!e Commissions. Each party hereby represents and warrants to the other
that it has had no dealings with any real estate broker or agent in connection with this Sublease.
Each party agrees to protect, defend, indemnifY and hold the other harmless from and against
any and all claims inconsistent with the foregoing representations and warranties for any
brokerage, finder's or similar fee or commission in connection with this Sublease, if such claims
are based on or relate to any act of the indemnifYing party which is contrary to the foregoing
representations and warranties.
16. Successors and Asshms. This Sublease shall be binding upon and inure to the
benefit of the successors and assigns of Sub landlord and Subtenant, as the case or context may
require. The provisions of Sections 13 and 14 hereof shall be binding upon and inure to the
benefit of the successors and assigns of Subtenant and Master Lessor.
17. Entire Al!J'eement. This Sublease (together with the DDA) contains all the terms,
covenants, conditions and agreements between Sublandlord and Subtenant relating in any manner
to the rental, use and occupancy of the Premises. Except for the DDA, no prior agreement or
understanding pertaining to the same shall be valid or of any force or effect. The terms,
covenants and conditions of this Sublease cannot be altered, changed, modified or added to
except by a written instrument signed by Sublandlord and Subtenant.
18, Notices.
a) Notices. Demands and Communications Between the Parties. Notices, demands and
communications between Sublandlord and Subtenant shall be deemed sufficiently given if (i)
delivered personally, (ii) dispatched by registered or certified mail, postage prepaid, return
receipt requested, or (iii) sent by nationally-recognized reputable overnight delivery service
to the principal offices of Sublandlord and Subtenant as set forth below. Such written
notices,demands and communications may be sent in the same manner to such other addresses or to
such other address as any Party may from time to time designate by mail as provided in this
Section,and shall be deemed received upon delivery or refusal of delivery, if delivered personally,
within three (3) business days after deposit of same in the United States mail, if mailed, or one (
1)business day after deposit of same with a nationally recognized reputable overnight
delivery service if sent by such a delivery
service.
6-960904 jar d849-2.jar 11091-00002 Mills -- City of Orange Parking
To the Subtenant: The Mills Corporation
1300 Wilson Boulevard
Suite 400
Arlington, Virginia 22209
Attn: James Dausch
and with copies to: The Mills Corporation
1300 Wilson Boulevard
Suite 400
Arlington, Virginia 22209
Attn: General Counsel
and
The Mills Corporation
6170 West Grand Avenue
Gurnee, Illinois 60031
Attn: Steve Jacobsen
and
Rudnick & Wolfe
203 North LaSalle Street
Suite 1800
Chicago, Illinois 60601
Attn: Jeffrey S. Arnold
To the Sublandlord: City of Orange
c/o Orange Redevelopment Agency
230 East Chapman Avenue
Orange, California 92866
Attn: Executive Director
an with a copy to: Richards, Watson & Gershon
333 South Hope Street
38th Floor
Los Angeles, California 90071
Attn: Jeffrey A. Rabin
19. Hazardous Material. If the Premises are not in a condition suitable for the use
or uses to which it shall be put by Subtenant, then it is the sole responsibility and obligation of
Subtenant to take such action as may be necessary to place the Premises in a condition suitable
for development of the Improvements thereon. Subtenant acknowledges and agrees specifically
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960904 jar d849-2.jar 1l09t-OOOO2 Mills -- City of Orange Parking Area
that neither the Agency nor Sub landlord shall have any responsibility or obligation with respect
to the abatement of asbestos and any other Hazardous Materials on the Premises, and that
Subtenant shall cause any Hazardous Materials to be remediated or abated and disposed of
properly. Subtenant agrees that if Subtenant acquires the Premises, then, except as set forth
below, Subtenant shall abate, or cause to be abated, and disposed, in a legally required and safe
manner, all asbestos and other Hazardous Materials on the Premises in a prompt and expeditious
manner. For purposes hereof, the term "Hazardous Materials" shall include, but not be limited
to, substances defined as "hazardous substances," "hazardous materials," "pollutant or
contaminant," "imminently hazardous chemical substance or mixture," "hazardous air pollutant,"
toxic pollutant," "hazardous waste," "extremely hazardous waste" or "toxic substances" in any
of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 D.S.C. ~9601, et seq.; the Hazardous Materials Transportation Act, 49 D.S.C.
1801, et seq.; The Resource Conservation and Recovery Act, 42 U.S.C ~6901, et seq,; and
those substances defined as "hazardous substances" in ~25316 of the California Health & Safety
Code; and in the regulations adopted and publications promulgated pursuant to said laws
Hazardous Materials Laws"),
Subtenant, on behalf of itself and its successors, affiliates, partners, and assigns
other than the Agency and Sublandlord with respect to any interest in the Premises that may be
held by the Agency or the Sublandlord), agrees to indemnifY, protect, defend and hold the
Agency and the Sublandlord harmless from and against any claim, action, suit, proceeding, loss,
cost, damage, liability, deficiency, fme, penalty, punitive damage, or expense (including,
without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the
presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials
on, under, in or about, or the transportation of any such Hazardous Materials to or from, the
Premises, or (ii) the violation, or alleged violation, or compliance with the requirements of any
stal11te, ordinance, order, rule, regulation, permit, judgment or license relating to the use,
generation, release, discharge, storage, disposal or transportation of Hazardous Materials on,
under, in or about, to or from, the Premises. This indemnity shall include, without limitation,
any damage, liability, fme, penalty, or expense arising from or out of any claim, action, suit or
proceeding for personal injury (including sickness, disease or death), tangible or intangible
property damage, compensation for lost wages, business income, profits or other economic loss,
damage to the natural resource or the environment, nuisance, contamination, leak, spill, release
or other adverse effect on the environment, and the cost of clean-up of the Premises, or
any portion thereof, or any improvements thereon, caused by or resulting from any
Hazardous Material, or toxic substances or waste existing on, under, about or adjacent to the
Premises.20. Authority of Subtenant, Subtenant represents and warrants to Sublandlord
that this Sublease has been duly authorized, executed and delivered by and on behalf of
Subtenant and constitutes the valid, enforceable and binding agreement of Subtenant in accordance with
the terms
hereof.
8-960904 jar d849-2.jar 11091-00002 Mills -- CiIy of Orange Parking
21. Consent of Master Lessor, The obligations of Sublandlord and Subtenant under
this Sublease are conditioned and contingent upon the Master Lessor consenting hereto by
executing and delivering a counterpart of this Sublease.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease as
of the date aforesaid.
Sublandlord:Subtenant:
CITY OF ORANGE, a municipal corporation THE MILLS LIMITED PARTNERSHIP, a
Delaware limited partnership
By:The Mills Corporation, a Delaware
corporation, its general partnerBy:
Mayor
ATTEST:By:
President
City Clerk By:
Secretary
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960904 jar d849-2.jar 11091-00002 Mills -- City of Orange Parking Area
EmmIT A
THE PREMISES
Not yet finalized. Subject to final approval by City Manager.
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960904 jar d849-2.jar 1l091~2 Mills -- City of Orange Parking Area Sublease
CONSENT TO SUBLEASE
THE MILLS LIMITED PARTNERSHIP ("Master Lessor"), as Landlord under
that certain Lease Agreement dated , 199_, by and between Master Lessor and the
CITY OF ORANGE, a municipal corporation ("Original Tenant") (the "Prime Lease"), hereby
grants its consent to the foregoing Sublease dated , 199_, by and between
Original Tenant and The Mills Limited Partnership.
Master Lessor:
THE MILLS LIMITED PARTNERSHIP, a
Delaware limited partnership
By: The Mills Corporation, a Delaware
corporation, its general partner
By:
President
By:
Secretary
ATTEST:
By:
Its:
By:
Its:
Date:
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960904 jar d849-2.jar 11091-00002 Mills -- City of Orange Parking Area