HomeMy WebLinkAboutORD-19-04 Development Agreement- City Plaza Two Site & 605 Building SiteORDINANCE NO. 19-
04
I AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ORANGE APPROVING A
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY
OF ORANGE AND CA-THE
CITY LIMITED PARTNERSHIP FOR DEVELOPMENT
PROJECTS ON THE "CITY PLAZA TWO SITE" AND
THE "605 BUIDLING SITE", WHICH ARE LOCATED
NORTH OF METROPOLITAN DRIVE AND EAST
OF LEWIS STREET (605 S. LEWIS STREET AND
ONE CITY
BLVD. WEST)WHEREAS, Section 65864 et seq. of the California Government
Code authorizes cities to enter into Development Agreements with any person having a legal
or equitable interest in real property for the development of such
property; and WHEREAS, the City Council of the City of Orange has adoptedChapter 17.44
of the Orange Municipal Code, which establishes procedures for the processing and
approval of Development
Agreements; and WHEREAS, CA-The City Limited Partnership, a Delaware
limited partnership (the Developer), is the owner of certain real property located in the City
of Orange commonly referred to as the City Plaza Two Site and the 605 Building Site, which
are more particularly described in the draft Development Agreement attached to this Resolution as
Exhibit A. The City Plaza Two Site is located north of Metropolitan Drive midway between
Lewis Street and The City Drive. The 605 Building Site is located at the northeast corner of
the intersection of Lewis Street and
Metropolitan Drive; and WHEREAS, the Developer has a legal and equitable interest in the City
Plaza Two Site and the 605 Building Site and has made application to the City to enter
into such Development Agreement for the development of the projects described in Resolutions No.
9521 and 9522,which were adopted by the City Council on October 9, 2001 (
the
Projects); and I WHEREAS, prior to its approval of the Projects three years
ago, an environmental review was conducted by the City, as the lead agency, under
the California Environmental Quality Act (CEQA) to evaluate the Projects, together with development projects
for two other separate development sites owned by the Developer or its affiliates. As a
result of the environmental review, Final Environmental Impact Report 1612-01 (
the Final EIR) was prepared and certified by the City Council in accordance with CEQA on
October 9, 2001; and WHEREAS, the proposed approval of the
Development Agreement constitutes a project within the meaning of CEQA and the State CEQA
Guidelines. In compliance with CEQA and the State CEQA Guidelines, the City has prepared an Addendum
to the Final EIR because it appears that none of the conditions described in Section 15162 [
Guidelines] calling for the preparation of a subsequent EIR or negative declaration have
occurred; and
WHEREAS, in accordance with State and local law, on August 16, 2004, the Planning
Commission conducted a duly noticed public hearing on the proposed Development Agreement
in substantially the form attached to this Resolution and the EIR, considered information
presented by City staff and public testimony regarding the proposed Development Agreement
and the Addendum to the FEIR, and, by a vote of not less than a majority of its total
membership, recommended City Council approval of the Addendum to the FEIR and approval
of the Development Agreement; and
WHEREAS, in accordance with State and local law, on September 28, 2004, the City
Council conducted a duly noticed public hearing on the proposed Development Agreement,
reviewed and considered proposed Development Agreement, the Addendum to the FEIR,
information presented by City staff and public testimony regarding the Addendum to the FEIR
and the proposed Development Agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ORANGE
DOES ORDAIN AS FOLLOWS:
SECTION I:
The City Council considered the Addendum to the FEIR and approved that Addendum
by the adoption of Resolution No. 9909.
SECTION II:
The City Council finds that a public hearing has been held before this City Council
pursuant to the procedures described in Chapter 17.44 of the Orange Municipal Code. At the
hearing, the City Council has considered testimony presented by the public and the Planning
Commission's recommendation to approve the Development Agreement between the City of
Orange and the Developer (Development Agreement).
SECTION III:
The City Council hereby finds that the Development Agreement between the City of
Orange and the Developer:
A. Is consistent with the objectives, policies, general land uses, and programs
specified in the General Plan; and
B. Is compatible with the uses authorized in, and the regulations prescribed for, the
zoning district in which the City Plaza Two Site and the 605 Building Site are and will be
located, and is consistent with the City's Zoning Code; and
2
C. Is in conformity with and will promote public necessity, public convenience,
general welfare, and good land use practices; and
D. Will be beneficial to the health, safety, and general welfare; and
I E. Will not adversely affect the orderly development of property or the preservation
of property values; and
F. Will promote and encourage the development of the proposed project by
providing a greater degree of requisite certainty.
SECTION IV:
The City Council approves and incorporates by reference the Development Agreement,
attached hereto as Exhibit A. Within ten (10) days after this Ordinance takes effect, the City
Council shall execute the Development Agreement.
SECTION V:
Within ten (10) days after the execution of the Development Agreement by all parties,
the City Clerk is directed to record the Development Agreement pursuant to the terms of the
Development Agreement in the Official Records of the County of Orange.
SECTION VI:
A summary of this Ordinance shall be published and a certified copy of the full text of
this Ordinance shall be posted in the Office of the City Clerk at least five (5) days prior to the
City Council meeting at which this Ordinance is adopted. A summary of this Ordinance shall
also be published once within fifteen (15) days after this Ordinance's passage in a newspaper of
general circulation, published, and circulated in the City of Orange. The City Clerk shall post
in the Office of the City Clerk a certified copy of the full text of such adopted Ordinance along
with the names of those City Council members voting for and against the Ordinance in
accordance with Govemment Code Section 36933. This Ordinance shall take effect thirty (30)
days from and after the date of its final passage.
ADOPTED this 28th day of September, 2004.
I
3
ATTEST:
i(<<c Z2
Mary E. 1tu~ty Clerk, lty ange
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF ORANGE )
I, MARY E, MURPHY, City Clerk of the City of Orange, California, do hereby certify
that the foregoing Ordinance was introduced at the regular meeting of the City Council held on
the 14th day of September, 2004, and thereafter at the regular meeting of said City Council duly
held on the 28th day of September, 2004, was duly passed and adopted by the following vote,
to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
COUNCILMEMBERS: Ambriz, Murphy, Coontz, Cavecche
COUNCILMEMBERS: None
COUNCILMEMBERS: Alvarez
COUNCILMEMBERS: None
M~f~-4
YFyr j EXEMPT
FROM
RECORDER'S FEES Pursuant to
Government Code ~~ 6103 and 27383 Rec:orded
in Official Records, Orange County To", Daly,
Clerk-Recorder IIIIII
111111111111111 1111111111111111111111111 11111 111111111111111 1111 1111 NO FE E 2005000013339
02:26pm 01/06/05 200200
A12 49 0.
00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 IRECORDING
REQUESTED BY AND WHEN RECORDED
RETURN TO:City
Clerk City
of Orange 300
East Chapman Avenue Orange,
California 92866 SPACE
ABOVE FOR RECORDER'S USE) 11 1Q(
vc/
DEVELOPMENT
AGREEMENT Dated
as of j)eCI mhl'"( I?' , 2004 By
and Between City
of Orange, a municipal corporation and
I
CA-
THE CITY LIMITED PARTNERSHIP,
a Delaware limited partnership
TABLE OF CONTENTS
Page
1. Recitals..............,.............."..,........................................................................."....,...,."..,. 1
2, Definitions .,..,..,....".,...",....,..,.....,..,....................,...,.."....,....,.."."..,..,......",...,...,............ 4
3, Binding Effect ......,.,.....,..,..,...",.."".......".,..,.,......,.....................................................,.." 5
4. Negation of Agency ..,........................................,..,.......,..,...."",..,..,..,........"..,....."..,......5
5. Development Standards for the Project, Applicable Rules .............................................. 5
6. Right to Develop ,..,.."..".".,.....,..,.....,.,..,..,.,.."..,.,..,..".,..,..,..,..,..""......,........................, 7
7. Acknowledgments, Agreements and Assurances on the Part of the Developer .............. 8
8. Acknowledgments, Agreements and Assurances on the Part of the City...................... 12
9. Cooperation and Implementation .......,............................................................................ 14
10. Compliance; Termination; Modifications and
Amendments.........................................
15
11, Operating Memoranda,.."..""",..,....".,..",..,..,..,..".,..".,....,.................................,..,......, 17
12. Term of Agreement ....................,....".........,..,.,.................................,.....,..,..,..""."",.." 18
13. Administration of Agreement and Resolution of Disputes ............................................ 18
14. Transfers and Assignm~ts ............................................................................................ 20
15. Mortgage Protection ........................ ...............................................,..,..,..,..".,..",..",.,.,.. 21
16. Notices ".."........."..,.,.,."..".,..........".......,....,..,,..."...."....,..,..,..,..,..,..,......."................... 22
17, Severability and Termination,..,....,..........,..",....,..............................................,.,..,...,.., 23
18. Time of Essence ..................,.....,.,.."..........,.............. ............................,..,...."....,."",.." 23
19. Force Majeure ..................,........................................ ...,.. .......".",......".,."..,.,..,.."".....,. 23
20. Waiver ..".."."".,...."..,..".."",.,.."".,.."".........""",...,....,..,..,.....,......."........,.................. 24
21. No Third Party Beneficiaries..........................................................................................
24
22, Attorneys' Fees ....,..........,.,.................................................... ........................................, 24
23, Incorporation of Exhibits ..................................................................................... ,......... 24
24, Copies of Applicable Rules............................................................................................ 24
25. Authority to Execute, Binding Effect............................................................................. 24
26. Entire Agreement; Conflicts......,..,..".,.,..,..",..,..,..,..,.."......,..,..,..,....,,..,..,..,..,.,..".,...,.., 25
27, Remedies ,................................".......,...,....",.........,..,..........,.,..."....,...,....,...,......,..,..',." 25
Exhibits
Exhibit "A-I" Legal Description of the City Plaza Two
Site Exhibit "A-2" Legal Description of 605
Building Site Exhibit "B" Resolution
No, 9843 Exhibit "C" Legal Description of the City Tower
Two Site Exhibit "D" Public
Benefit Fees Exhibit "E" Camera Site
I
I
DEVELOPMENT AGREEMENT
T is Development Agreement (the "Agreement") is made in Orange County, California
as of J~-ivnl:)t'r I'? , 2004, by and between the CITY OF ORANGE, a municipalcorporation (the "City") and CA-THE CITY LIMITED PARTNERSHIP, a Delaware
limited partnership ("Developer"). Together, the City and the Developer shall be referred to as
the
Parties".I. Recitals, This Agreement is made with respect to the following facts and for
the following purposes, each of which is acknowledged as true and correct by the
Parties:a) The City is authorized, pursuant to Government Code ~~65864through65869.5 (the "Development Agreement Statutes") and Chapter17.44 (Development Agreements) of the Orange Municipal Code to enter into binding agreements with persons
or entities having legal or equitable interests in real property for the development of suchpropertyinordertoestablishcertaintyinthedevelopment
process.b) Developer is the owner of certain real property located in the City
and consisting of those parcels commonly referred to
as:
and 1) The "City Plaza Two Site" (legally described on Exhibit II
A-I ");2) The "605 Building Site" (legally described on Exhibit "
A_2").c) References in this Agreement to the "Project" shall mean each
of the properties hereinabove described and the development project proposed for each
of such properties. References in this Agreement to the "Projects" shall meansuch
properties collectively.d) Developer seeks to enhance the vitality of the Citybydevelopingadditional
office uses.e) Pursuant to Government Code ~65867.5 and OrangeMunicipalCodeSection17.44.100, the City Council finds that: (i) this Agreement and any FutureApprovalsoftheProjectimplementthegoalsandpoliciesoftheCity's General Plan, providebalancedanddiversifiedlandusesandimposeappropriatestandardsandrequirementswithrespect
to land development and usage in order to maintain the overall quality of life andtheenvironmentwithintheCity; (ii) this Agreement is in the best interests of and not in detriment tothepublichealth, safety and general welfare of the residents of the City and thesurroundingregion;iii) this Agreement is compatible with the uses authorized in the zoning districtandplanningareainwhichtheProjectsiteislocated; (iv) adopting this Agreement is consistent with theCity's General Plan and constitutes a present exercise of the City's police power; and (
v) this Agreement is being entered into pursuant to and in compliance with therequirementsofGovernment
Code (
f) Substantial public benefits (as required by Section 17.44,200 of the
Orange Municipal Code) will be provided by Developer and the Project to the entire community,
These substantial public benefits include, but are not limited to, the following:
1) By and through its existence, the Project is and, at the completion
of the Project, will continue to be, an enormous benefit and resource to the community;
2) The Project will provide an expanded economic base for the City
by generating substantial property tax revenue;
3) The Project will provide temporary construction employment and
permanent office-based jobs for a substantial number of
workers;4) The Project, consisting of the City Plaza Two Site and
605 Building Site, will contribute traffic impact mitigation fees to the City pursuant to the
West Orange Circulation Study ("WOeS Study"), which will partially fund the completion of
traffic and circulation infrastructure in the WOCS Study area that will be needed to
accommodate demand from future growth;
and 5) The Project will provide for additional sales/use taxes to the
City,as provided in Section 7
hereof.In exchange for these substantial public benefits, City intends to give
Developer assurance that Developer can proceed with the development of the Project for the term
and pursuant to the terms and the conditions of this Agreement and in accordance with
the Applicable Rules (as hereinafter
defined).g) The Developer has applied for and the City has approved this
Agreement in order to create a beneficial project and a physical environment that will conform to
and compliment the goals of the City, create a development project sensitive to human needs
and values, facilitate efficient traffic circulation, and develop the
Project.h) This Agreement will bind the City to the terms and obligations specified
in this Agreement and will limit, to the degree specified in this Agreement and under the laws
of the State of California, the future exercise of the City's ability to delay, postpone, preclude
or regulate development on the Project, except as provided for
herein.i) In accordance with the Development Agreement Statutes, this
Agreement eliminates uncertainty in the planning process and provides for the orderly improvement of
the Project. Further, this Agreement provides for appropriate further development of the
Project over and above the improvements which currently exist on the Project and generally serves
the public interest within the City and the surrounding
region.j) The following actions were taken with respect to the approval of
this Agreement and the
Project:1) An environmental review was conducted and Final
Environmental Impact Report (FE1R) 1612-01 (the "Final EIR") was certified in accordance with
the
I
I
Environmental Quality Act ("CEQA"). The Final EIR was certified on October 9, 2001
pursuant to, among others, the following Resolutions of the City Council: (i) Resolution
No. 9521 with respect to the 605 Building Site and (ii) Resolution No, 9522 with respect to the
City Plaza Two Site.
2) In addition, on October 9, 2001, the City Council of the Cityapprovedthefollowing (herein referred to collectively as the "Existing Project Approvals"):
A) Conditional Use Permit No. 2380-01 and Major Site
Plan Review No, 108-99 for the City Plaza Two Site for the construction ofa19-story,360,000 square foot office building and a 6-level, 2,
nO-space parking structure; and B) Conditional Use Permit No.
2379-01 and Major Site Plan Review No. 107-99 for the 605 Building Site for
the construction of a 10-story, 200,000 square foot office
building and a 5-level, 1 ,528-space parking structure.
3) The Final EIR evaluated four (4) separate development sites including the Project) (collectively, the "
EOP Projects"), all of which were located in the area within or adjacent to "The Block at
Orange", and which together were to consist of one million one hundred fifty-seven thousand (1,
157,000) square feet of office space and a one hundred thirty-seven (137)
room hotel. A trip generation survey was conducted and the Final EIR determined that
the EOP Projects, upon completion, would generate a total of thirteen thousand eight
hundred seventy-six (13,876) average daily trips. The Final EIR designated separate average daily
trip generation estimates for each of the EOP Projects
based upon the estimated development square footage of each of the EOP Projects.4) As part of its
approval of the EOP Projects, the City imposed various traffic mitigation
conditions, including:A) a "fair share" allocation of the
cost of certain traffic improvements identified in the WOCS Study (the "
WOCS Improvements");B) the obligation to pay one hundred percent (100%)
of the cost of specific traffic improvements at three (3) designatedintersections; and C) a "fair share" of the
cost of widening the Orangewood A venue bridge over the Santa Ana River.The
traffic irnprovements
described in (B) and (C) are herein referred as the "Traffic Improvement Conditions".5) The WOCSStudy estimated the cost of the WOCS Improvements to
be approximately Three Million Five Hundred Thousand Dollars ($3,500,000.
00) and assigned "fair share" costs for such improvements
to the following projects:A) UCI Medical Center
Expansion -
C) The Block at Orange Expansion - thirty percent (30%),6)
On March 9,2004, the City adopted Resolution No. 9843 in which the
City determined that the "fair share" of the EOP Projects for the WOCS Improvements and the
Traffic Improvement Conditions would be as set forth in Exhibit "A" to Resolution No.9843.
A copy of Resolution No. 9843 is attached hereto as Exhibit "B",7)
In response to the Developer's application for a Development Agreement,
the City felt that it would be helpful to provide the public with information updating and
amplifYing some of the points raised in the Final EIR as they pertain to the Projects.Accordingly,
and as provided in Section 15164 of the State California Environmental Quality Act
Guidelines (the "CEQA Guidelines"), the City prepared an Addendum to the Final EIR (the Addendum").
8)
On August 16, 2004, the Planning Commission of the City held a duly
noticed public hearing on the Developer's application for a Development Agreement,considered
the Addendum with the Final EIR, and by Resolution No. PC 33-04 recommended to
the City Council of the City approval of this Agreement.
9) On September 14, 2004, the City Council of the City held a duly
noticed public hearing on the Developer's application for a Development Agreement, considered
the Addendum with the Final EIR, and on that date adopted Resolution No. 9909, making certain
findings under CEQA and determined that the Addendum is all that is necessary in connection
with this Agreement and the approval thereof. Thereafter, at its regular meeting of
September_, 2004, the City Council adopted its Ordinance No. 19-04 approving
this
Agreement.k) The Developer represents to the City that, as ofthe Effective Date, it is
the owner of the Project, subject to encumbrances, easements, covenants, conditions,
restrictions,and other matters of
record,2. Defmitions, In this Agreement, unless the context otherwise
requires:a) "Applicable Rules" means the development standards and restrictions
set forth in Section 5 of this Agreement which shall govern the use and development of the
Project and shall amend and supersede any conflicting or inconsistent provisions of zoning
ordinances,regulations or other City requirements relating to development of property within the
City.b) "Development Agreement Statutes" means Government Code ~~
65864 to 65869.
5.c) "Discretionary Actions" and "Discretionary Approvals" are
actions which require the exercise of judgment or a discretionary decision, and which contemplate
and authorize the imposition of revisions or additional conditions, by the City, including any
board,commission, or department of the City and any officer or employee of the City; as opposed
to actions which in the process of approving or disapproving a permit or other entitlement
merely requires the City, including any board, commission, or department of the City and any officer
or
I
I
employee of the City, to determine whether there has been compliance with applicable statutes,
ordinances, regulations, or conditions of approval.
d)
becomes effective.
Effective Date" is the date the ordinance approving this Agreement
e) "Future Approvals" means any action in implementation of developmentoftheProjectwhichrequiresDiscretionaryApprovalspursuanttotheApplicableRules,
including, without limitation, parcel maps, tentative subdivision maps, development plan and site
plan reviews, and conditional use permits. Upon approval of any of the Future Approvals, as
they may be amended from time to time, they shall become part of the Applicable Rules, and
Developer shall have a "vested right", as that term is defined under California law, in and to such
Future Approvals by virtue of this Agreement.
f) Other terms not specifically defined in this Agreement shall have the same
meaning as set forth in Chapter 17.44 (Development Agreements) of the Orange MunicipalCode.
3. Bindine Effect. This Agreement, and all of the terms and conditions of this
Agreement shall, to the extent permitted by law, constitute covenants which shall run with the
land comprising the Project for the benefit thereof, and the benefits and burdens of this
Agreement shall be binding upon and inure to the benefit of the Parties and their respectiveassigns, heirs, or other successors in interest.
4. Neeation of Aeencv. The Parties acknowledge that, in entering into and
performing under this Agreement, each is acting as an independent entity and not as an agent of
the other in any respect. Nothing contained herein or in any document executed in connection
herewith shall be construed as making the City and Developer joint venturers, partners, agents of
the other, or employer/employee,
5. Development Standards for the Proiect. Aoplicable Rules. The developmentstandardsandrestrictionssetforthinthisSectionshallgoverntheuseanddevelopmentofthe
Project and shall constitute the Applicable Rules, except as otherwise provided herein, and shall
amend and supersede any conflicting or inconsistent provisions of existing zoning ordinances,
regulations or other City requirements relating to development of the Project and any subsequentchangestotheApplicableRulesasspecificallydescribedinSection5(c).
a) The following ordinances and regulations shall be part of the ApplicableRules:
1) The City's General Plan as it exists on the Effective Date;
2) The City's Municipal Code relating to Development AgreementswhichissetforthinChapter17.44 of the Orange Municipal Code, as it exists on the Effective
Date; and
3) Such other ordinances, rules, regulations, and official policiesgoverningpermittedusesoftheProject, density, design, improvement, and construction
5
standards and specifications applicable to the development of the Project in force on the
Effective Date, except as they may be in conflict with the provision of Subsection (a)( 4) of this
Section.
4) The terms, provisions and conditions of the following with respect
to each Project as hereinafter described:
A) Conditional Use Permit No. 2380-01 and Major Site
Plan Review No.1 08-99 for the City Plaza
Two Site;B) Conditional Use Permit No. 2379-01 and
Major Site Plan Review No. 107-99 for the
605 Building Site; and C) The "fair share" of the
Projects for the WOCS Improvements and the Traffic Improvement Conditions as
set forth
in Resolution No, 9843,b) The City acknowledges that Developer is in the process
of selling one (1)of the EOP Projects legally described on Exhibit "C" attached hereto
and commonly referred to as the "City Tower Two Site" to a third party and, the City may grant
approvals to allow such third party to develop a residential project on the City Tower Two
Site. The City further acknowledges that the average daily trips which would be generated
by the proposed residential project may be substantially less than the average daily trips that would
have been generated by the original project for the City Tower Two Site as identified in the Final
EIR. The City hereby agrees and acknowledges that the traffic impacts identified in the Final EIR
were studied on an area-wide basis and that the Final EIR adequately studied and
determined the traffic impacts and relevant mitigation measures required for such traffic
impacts, Accordingly, the City hereby agrees that the difference between the average daily trips allocated
to the original City Tower Two Site and the average daily trips which are determined to
be generated by the residential project (or other project) located on the City Tower Two Site and
approved by the City (the Unused Trips") may be "transferred" to one of the two Projects or
in part to both Projects during the term
of this Agreement, subject to:1) The evaluation of site specific
traffic improvements in the area immediately adjacent to one or both of the Projects (
as the case may be);2) Compliance with the
applicable requirements of
the California Environmental Quality Act;3) Compliance with the City's standard
site plan review process; and 4) Any other acts or
actions requiring the subsequent, independent exercise of discretion by the City or any agency or
department thereof, provided that, in connection with the exercise of such discretion, the City shall at all
times take into account the existence of the Unused Trips (it being the intention of the Parties that
the Unused Trips shall be reserved for the benefit of Developer and the Projects and, without
the prior written consent of Developer, such Unused Trips shall hot be applied to or reserved for
the benefit of any other project that is subject
to
I
I
c) Neither Project shall be required to pay any portion of the "fair share" of
the WOCSImprovements and/or Traffic Improvement Conditions payable by or as a result of
any project approved by the City on the City Tower Two Site.
d) The "fair share" of the Projects shall not be increased as a result of the
failure by the City to recover (for whatever reason) the "fair share" contributions of the UCI
Medical Center Expansion and/or The Block at Orange Expansion, nor shall the cost of the
WOCS Improvements and the Traffic Improvement Conditions be deemed to be increased as a
result of such failure,
e) Notwithstanding the provisions of this Agreement, the City reserves the
right to apply certain other laws, ordinances and regulations under the certain limited
circumstances described below:
I) This Agreement shall not prevent the City from applying new
ordinances, rules, regulations and policies relating to uniform codes adopted by City or by the
State of California, such as the Uniform Building Code, National Electrical Code, Uniform
Mechanical Code or Uniform Fire Code, as amended, and the application of such uniform codes
to the Project at the time of application for issuance of building permits for structures on the
Project including such amendments to uniform codes as the City may adopt from time to time,
2) In the event that State or Federal laws or regulations prevent or
preclude cornpliance with one or more of the provisions of this Agreement, such provisions of
this Agreement shall be modified or suspended as may be necessary to comply with such State or
Federal laws or regulations; provided, however, that this Agreement shall remain in full force
and effect to the extent it is not inconsistent with such laws or regulations and to the extent such
laws or regulations do not render such remaining provisions impractical to enforce.
Notwithstanding the foregoing, City shall not adopt or undertake any regulation, program or
action or fail to take any action which is inconsistent or in conflict with this Agreement until,
following meetings and discussions with the Developer, the City Council makes a finding, at or
following a noticed public hearing, that such regulation, program actions or inaction is required
as opposed to pemJitted) to comply with such State and Federal laws or regulations after takingintoconsiderationallreasonablealternatives.
3) Notwithstanding anything to the contrary in this Agreement, CityshallhavetherighttoapplyCityordinancesandregulations (including amendments to
Applicable Rules) adopted by the City after the Effective Date, in connection with any Future
Approvals, or deny, or impose conditions of approval on, any Future Approvals in City's sole
discretion if such application is required to prevent a condition dangerous to the physical health
or safety of existing or future occupants of the Project, or any portion thereof or any lands
adjacent thereto.
6, Ril!:ht to Develop. Subject to the terms of this Agreement, and as of the Effective
Date, Developer shall have a vested right to develop the Projects in accordance with the
Applicable Rules,
7
7. Acknowlede:ments. Ae:reements and Assurances on the Part of the Developer.
a) Developer's Faithful Performance, The Parties acknowledge and agree
that Developer's performance in developing the Project and in constructing and installing certain
public improvements and complying with the Applicable Rules will fulfill substantial public
needs. The City acknowledges and agrees that there is good and valuable consideration to the
City resulting from Developer's assurances and faithful performance thereof and otherwise in
this Agreement, and that same is in balance with the benefits conferred by the City on the
Project. The Parties further acknowledge and agree that the exchanged consideration hereunder
is fair, just and reasonable,
b) Oblie:ations to be Non-Recourse. As a material element of
this Agreement, and as an inducement to Developer to enter into this Agreement, each of the
Parties understands and agrees that the City's remedies for breach of the obligations of Developer
under this Agreement shall be limited as described in this
Agreement.c) Traffic Monitorine: Camera. Commencing as of the date that
a Camera Site License Agreement" in substantially the form attached hereto as Exhibit "E"
is executed by both City and Developer, and continuing thereafter for ten (10) years, the
Developer will permit the City to install, use and maintain a site on the southeast rooftop of the Developer'
s City Plaza Tower", which is located at One City Boulevard West in the City of Orange,
along with access rights, for the placement of a City-owned traffic monitoring CCTV
camera, which will be used by the City to monitor traffic flows on Metropolitan Drive, City Drive, and
the SR-22 ramps, and for no other purposes, and will be connected via a wireless link to the
City's Traffic Management Center at 637 West
Struck Avenue.The City shall furnish detailed plans and specifications for installation
of the CCTV camera to the Developer for approval, which approval shall not be withheld unless: (
i) a design problem exists; (ii) the CCTV camera or the installation thereof
will unreasonably interfere with City Plaza Tower's building systems; (iii) the CCTV camera or
the installation thereof will unreasonably interfere with any other camera or
telecommunications equipment located on or within the City Plaza Tower's building as of the date of the
CCTV camera installation; or (iv) the CCTV camera or the installation thereof will unreasonably
interfere with any other camera or telecommunications equipment which, as of the date of the
CCTV camera installation, Developer is contractually obligated to install on or in the City
Plaza Tower building. The City shall pay for any and all costs and expenses in connection
with the installation, maintenance, use and removal of the CCTV camera but, in no event, shall
the City be obligated to pay the Developer any rental for that portion of the roof on which
the CCTV camera shall be located or to payor reimburse the Developer for any electrical service
fees for the operation of the CCTV camera. Furthermore, the City shall repair and maintain
the CCTV camera in good order and repair at
all times.City shall indemnifY, protect, defend (by counsel acceptable to
Developer) and hold harmless Developer and Developer's affiliated entities, and each of
their respective members, managers, partners, directors, officers, employees, shareholders,
lenders, agents,contractors, affiliates, successors and assigns (individually and collectively,
the "Developer Indemnitees") from and against any and all liabilities, obligations, damages,
penalties,
I
I
actions, costs, charges and expenses, including, without limitation, reasonable attorneys' fees and
other professional fees (if and to the extent permitted by law), which may be imposed upon,
incurred by or asserted against Developer or any of the Developer Indemnitees and arising at any
time during or after the term of this Agreement as a result (directly or indirectly) of the
installation, use, maintenance and/or operation of the CCTV camera or arising out of any acts or
omissions (including violations of law) of City, its partners, officers, directors, employees and
agents or any of City's transferees, contractors or licensees, in or about the City Plaza Tower
building, except to the extent caused by Developer's gross negligence or willful misconduct. In
addition, Developer and the Developer Indemnitees shall not be liable for, and City waives, all
claims for loss or damage to the CCTV camera (or any component thereof, including recorded
data and data transmissions) resulting from: (1) wind or weather; (2) the failure or malfunction
of any sprinkler, heating or air-conditioning equipment, any electric wiring or any gas, water
or steam pipes; (3) the backing up of any sewer pipe or downspout; (4) the bursting, leaking
or running of any tank, water closet, drain or other pipe; (5) water, snow or ice upon or
coming through the roof or any other place upon or near the City Plaza Tower building that may
affect the CCTV camera; (6) any act or omission of any party other than Developer or the
Developer Indemnitees; and (7) any causes not reasonably within the control of Developer. TheobligationsofCityunderthisSection7(c) shall survive the termination of this Agreement with respect
to any claims or liability arising prior to such
termination.d) Develooer's Commitment Rel!:ardinl!: California SaleslUse Taxes.
To the extent permitted by law, Developer will require in its general contractor construction
contract that Developer's general contractor and subcontractors exercise their option to obtain a Board
of Equalization sales/use tax subpermit for the jobsite at each of the two project sites and
allocate all eligible use tax payments to the City. Further, to the extent permitted by law, Developer
will require in its general contractor construction contract that prior to beginning construction of
each of the two projects, the general contractor and subcontractors will provide the City with either
a copy of the subpermit, or a statement that sales/use tax does not apply to their portion of the
job,or a statement that they do not have a resale license which is a precondition to obtaining
a subpermit. Further, to the extent permitted by law, Developer will use its best efforts to
require in its general contractor construction contract that (1) the general contractor or
subcontractor shall provide a written certification that the person(s) responsible for filing the tax
return understands the process of reporting the tax to the City and will do so in accordance with
the City's conditions of project approval as contained in this Agreement; (2) the general contractor
or subcontractor shall, on its quarterly sales/use tax return, identify the sales/use tax applicable
to the construction site and use the appropriate Board of Equalization forms and schedules to
ensure that the tax is allocated to the City of Orange; (3) in determining the amounts of sales/use tax
to be paid, the general contractor or subcontractor shall follow the guidelines set forth
in Section 1806 of Sales and Use Tax Regulations; (4) the general contractor or subcontractor
shall submit an advance copy of his tax return(s) to the City for inspection and confirmation prior
to submittal to the Board of Equalization; and (5) in the event it is later determined that
certain eligible sales/use tax amounts were not included on general contractor's or subcontractor'
s sales/use tax return(s), general contractor and subcontractor agree to amend those returns and
file them with the Board of Equalization in a manner that will ensure the City receives
such additional sales/use tax as City may be eligible to receive from the project for which
that particular contractor and its subcontractors were
responsible.
During the term of this Agreement, to the extent permitted by law, Developer
shall do one of the following: (1) Developer will review the Direct Payment Permit Process
established under State Revenue and Taxation Code Section 7051.3 and, if eligible, acquire and
use the permit so that the local share of its sales/use tax payments is allocated to the City;
Developer will provide City with either a copy of the direct payment permit or a statement
certifying ineligibility to qualify for the permit; Developer will further work with the City to
inform all tenants about the Direct Payment Permit Process and encourage their participation, if
qualified; or (2) Developer shall. make use of its resale license issued by the Board of
Equalization to exempt from sales/use taxes Developer's significant equipment purchases
relating to each of the two project sites from vendors and to direct pay all sales/use tax to the
Board of Equalization with the City of Orange as the point of sale for such purchases; in
connection with the foregoing, Developer shall provide to the City the vendor names, a
description of the equipment to be purchased, the purchase amoun~s for any out-of-state
or out-of-country purchases exceeding $500,000, and a copy of the applicable quarterly
sales/use tax reflecting paymentof the sales/use tax so long as the confidentiality thereof is
protected in a manner consistent with the restrictions imposed by Revenue and Taxation
Code Section 7056,City agrees to cause City's sales and use tax consultant, which
is presently the HdL Companies, to reasonably cooperate with Developer, Developer's general
contractor(s) and the general contractors' subcontractors to maximize City's receipt of sales/
use tax hereunder.e) Good Faith Efforts Ree:ardine: Block of Orane:e
Expansion. The City hereby acknowledges that, in connection with a proposed expansionof
an entertainment/retail commercial shopping center commonly known as the "Block at Orange," the
Orange City Mills Limited Partnership, a Delaware limited partnership ("Mills") has
recently received approval from the City for the development of five hundred (500) dwelling units,
one hundred twenty thousand (120,000) square feet of new commercial area, two (2) hotels, a
parking structure and related improvements (the "Block Expansion"), The Developer hereby represents
to the City that pursuant to that certain document entitled The City Covenants,
Conditions and Restrictions,dated April 9, 1997 and recorded on April 10, 1997 as Instrument No,
19970165663, as amended by that certain First Amendment to The City Covenants, Conditions
and Restrictions dated November 25, 1997 and recorded on January 21, 1998 as Instrument No.
19980033259 and that certain Second Amendment to the City Covenants, Conditions and
Restrictions dated November 25; 1997 and recorded on January 21, 1998 as Instrument No,
19980033260 (collectively, the CC&Rs"), the Block at Orange and the Block Expansion are subject to
certain land use restrictions in
favor of Developer f) The Developer represents to the City that the current
design, density and configuration of certain aspects of the Block Expansion, if not modified,
will negatively impact the value and functionality of certain projects owned by affiliates of
Developer located adjacent to the Block Expansion and the Block at Orange and, unless Mills and
Developer reach an agreement to modify certain aspects of the Block Expansion and the Block
at Orange to Developer's and Mill's reasonable satisfaction (including without
limitation, modifications to proposed design, density, parking rights and usage, configuration of
improvements and land usage considerations), the Block Expansion will not be approved by
Developer. In connection with the foregoing, the Developer further represents to the City that it is
willing to consider reasonable modifications to the CC&Rs provided that Mills agrees to modify
certain
I
I
the Block Expansion and the Block at Orange to Developer's reasonable satisfaction. The City
acknowledges that the failure of Developer to reach an agreement with Mills regarding a
modification to the CC&Rs will not be a default under this Agreement or otherwise affect the
rights and obligations of the Parties (except as expressly provided below) and, so long as Mills is
unwilling to modifY certain aspects of the Block Expansion and the Block at Orange to
Developer's reasonable satisfaction, Developer has no obligation to consent to and/or approve the
Block Expansion. Notwithstanding the foregoing, the Parties acknowledge that a substantial
public benefit will be provided by an agreement between Mills and Developer that will permit
Mills to develop and construct the Block Expansion and, as a result, Developer agrees to use
good faith efforts to cooperate with Mills to reach an agreement on acceptable modifications to
the current design, density, parking and configuration of the Block Expansion and the Block at
Orange (which agreement shall be evidenced by an amendment to the CC&Rs permitting the
development and construction of the Block Expansion by Mills subject only to the terms and
conditions set forth in such amendment), Following execution of such documents by and
between the Developer and Mills, the Developer hereby agrees to and shall furnish the City with
a certification signed by a duly authorized representative of Mills to the effect that Mills is
satisfied that it possesses the necessary consent from the Developer to develop and construct the
Block Expansion (the "Mills Certificate").
In the event that, on or before the first anniversary of the Effective Date of this
Agreement (the "First Resolution Date"), Developer and Mills have not reached an agreement
regarding acceptable modifications to (without limitation) the design, density, configuration and
parking at the Block Expansion and the Block at Orange (which agreement shall be evidenced by
an amendment to the CC&Rs permitting the development and construction of the Block
Expansion by Mills subject only to the terms and conditions set forth in such amendment),
Developer shall, by providing written notice to the City within ten (10) days following the First
Resolution Date (the "First Resolution Election Date"), elect to either: (i) terminate this
Agreement; or (ii) pay to the City the "Public Benefit Fees" that are applicable to the First
Resolution Date in the amounts and at the times identified on Exhibit "D" attached hereto,
Developer's failure to provide written notice of Developer's election on or before the First
Resolution Election Date shall be deemed to be Developer's election to take the action described
in subparagraph "(i)" above. In no event shall the Public Benefit Fees be supplemented, raised or
increased above the amounts identified on Exhibit "D".
If Developer and Mills fail to reach an agreement on or before the First Resolution Date
but Developer elects not to terminate this Agreement and pay to the City the Public Benefit Fees
identified on Exhibit "D" which are applicable to the First Resolution Date (and Developer has,
in fact, timely paid such fees to the City), Developer may continue to negotiate with Mills
regarding an amendment to the CC&Rs, acceptable to both Developer and Mills, that shall
permit Mills to develop and construct the Block Expansion. In the event, however, that
Developer and Mills have not reached an agreement regarding acceptable modifications to
without limitation) the design, density, configuration and parking at the Block Expansion and
the Block at Orange (which agreement shall be evidenced by an amendment to the CC&Rs
permitting the development and construction of the Block Expansion by Mills subject only to the
terms and conditions set forth in such amendment), on or before the second anniversary of the
Effective Date of this Agreement (the "Second Resolution Date"), Developer shall, byprovidingwrittennoticetotheCitywithinten (10) days following the Second Resolution Date
11
the "Second Resolution Election Date") elect to either: (i) temtinate this Agreement; or (ii) pay
to the City the Public Benefit Fees that are applicable to the Second Resolution Date in the
amounts and at the times identified on Exhibit "D" attached hereto, Developer's failure to
provide written notice of Developer's election on or prior to the Second Resolution Date shall be
deemed to be Developer's election to take the action described in subparagraph "(i)", above. In
no event shall the Public Benefit Fees be supplemented, raised or increased above the amounts
identified on Exhibit "D".
g) Limitation on Parking, Developer acknowledges and agrees that the total
amount of parking to be constructed by Developer in connection with the Projects shall not
exceed the maximum authorized parking set forth in Conditional Use Pemtit No. 2380-01
and Conditional Use Pemtit No.
2379-01.8. Acknowledgments. Agreements and Assurances on the Part of the
City. In order to effectuate the provisions of this Agreement, and in consideration for the
Developer to obligate itself to carry out the covenants and conditions set forth in the preceding Section
of this Agreement, the City hereby agrees and assures Developer that Developer will be
pemtitted to carry out and complete the development of the Projects in accordance with the
Applicable Rules,subject to the temtS and conditions of this Agreement and the Applicable Rules,
Therefore, the City hereby agrees and
acknowledges that:a) Entitlement to Develop. The Developer is hereby granted
the vested right to develop the Project to the extent and in the manner provided in this
Agreement, subject to the Applicable Rules and the
Future Approvals.b) Conflicting Enactments. Except as provided in Subsection (
e) of Section 5 above, any change in the Applicable Rules, including, without limitation,
any change in any applicable general area or specific plan, zoning, subdivision or
building regulation,adopted or becoming effective after the Effective Date, including, without limitation,
any such change by means of a Future Approval, an ordinance, initiative, resolution, policy,
order or moratorium, initiated or instituted for any reason whatsoever and adopted by the
Council, the Planning Commission or any other board, commission or department of City, or any
officer or employee thereof, or by the electorate, as the case may be, which would, absent
this Agreement,otherwise be applicable to the Project and which would conflict in any way with or
be more restrictive than the Applicable Rules ("Subsequent Rules"), shall not be applied by City
to any part of the Projects. Developer may give City written notice of its election to
have any Subsequent Rule applied to such portion of the Project as it may own, in which
case such Subsequent Rule shall be deemed to be an Applicable Rule insofar as that portion of
the Project
is concerned.c) Permitted Conditions, Provided Developer's applications for
any Future Approvals are consistent with this Agreement and the Applicable Rules, City shall
grant the Future Approvals in accordance with the Applicable Rules and authorize development
of the Project for the uses and to the density and regulations as described herein. City shall
have the right to impose reasonable conditions in connection with Future Approvals and,
in approving tentative subdivision maps, impose dedications for rights of way or easements for
public access,utilities, water, sewers, and drainage necessary for the Project or other developments
on
I
I
Project; provided, however, that such conditions and dedications shall not be inconsistent with
the Applicable Rules in effect prior to imposition of the new requirement nor inconsistent with
the developrnent of the Projects as contemplated by this Agreement; and provided further that
such conditions and dedication shall not impose additional infrastructure or public improvement
obligations in excess of those identified in this Agreement or normally imposed by the City. In
connection with a Future Approval, Developer may protest any conditions, dedications or fees to
the City Council or as otherwise provided by City rules or regulations while continuing to
develop the Projects; such a protest by Developer shall not delay or stop the issuance of building
pemJits or certificates of occupancy unless otherwise provided in the Applicable Rules,
d) Timinl! of Development. Because the California Supreme Court held in
Pardee Construction Co. v. City of Camarillo, 37 Ca1.3d 465 (1984) that failure of the parties to
provide for the timing of development resulted in a later adopted initiative restricting the timingofdevelopmenttoprevailovertheparties' agreement, it is the intent of Developer and the City to
cure that deficiency by acknowledging and providing that Developer shall have the rightwithouttheobligation) to develop the Projects in such order and at such rate and at such time as
it deems appropriate within the exercise of its subjective business judgment, subject to the temJS
of this Agreement.
e) Moratorium. No City-imposed moratorium or other limitation (
whether relating to the rate, timing or sequencing of the development or construction of all or any part
of the Project whether imposed by ordinance, initiative, resolution, policy, order or otherwise,
and whether enacted by the Council, an agency of City, the electorate, or otherwise) affecting
parcel or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy certificates or other entitlements to use or service (including, without limitation, water and
sewer,should the City ever provide such services) approved, issued or granted within City, orportionsofCity, shall apply to the Project to the extent such moratorium or other limitation is in
conflict with this Agreement and/or the Applicable
Rules.f) Permitted Fees and Exactions. Certain development impact
and processing fees have been imposed on the Projects as conditions of the Existing
Project Approvals (including, by way of example but not limited to, TSlP Fees, park facility fees, library facility fees, policy facility fees and fire facility fees), which impact and processing fees are
in existence on the Effective Date ("Development Project Fees"). Development Project
Fees applicable to the Projects, together with any processing fees charged by the City for the City'
s administrative time and related costs incurred in preparing and considering any application
for the Projects, shall be assessed in the amount they exist at the time Developer becomes liable
to pay such fees, provided that such fees shall not exceed the fees that are charged by theCitygenerallytoallotherapplicantssimilarlysituated, on a non-discriminatory basis
for similar approvals, pemJits, or entitlements granted by City. During the temJ of this Agreement, the City shall be precluded from applying any development impact fee that does not exist as
of the Effective Date, except for an impact fee the City may adopt on a City-
wide basis for administrative facility capital improvements. This provision does not authorizeCitytoimposefeesontheProjectsthatcouldnotbeimposedintheabsenceofthis
Agreement. Except as otherwise provided in this Agreement, City shall only charge and impose
those fees and exactions, including, without limitation, dedications and any other feesortaxes (including excise, construction or any other taxes) relating to development or the
privilege
the Projects as set forth in the Applicable Rules described in Section 5 of this Agreement;
provided, however, that Section 5 shall not apply to the following fees and taxes and shall not be
construed to limit the authority of City to:
I) Impose or levy general or special taxes, including but not limited
to, property taxes, sales taxes, parcel taxes, transient occupancy taxes, business taxes, which may
be applied to the Project or to businesses occupying the Project; provided, however, that the tax
is of general applicability citywide and does not burden the Project disproportionately to other
development within the City; or
2) Collect such fees or exactions as are imposed and set by
governmental entities not controlled by City but which are required to be collected by City.
g) Proiect Mitie:ation. The Developer shall undertake and complete the
mitigation requirements of the Existing Project Approvals. These requirements shall be satisfied
within the time established therefor in the Existing Project Approvals.
9. Cooperation and Implementation. The City and Developer agree that they will
cooperate with one another to the fullest extent reasonable and feasible to implement this
Agreement. Upon satisfactory performance by Developer of all required preliminary conditions
of approval, actions and payments, the City will commence and in a timely manner proceed to
complete all steps necessary for the implementation of this Agreement and the development of
the Project in accordance with the terms of this Agreement. Developer shall, in a timely manner,
provide the City with all documents, plans, and other information necessary for the City to carry
out its obligations. Additionally:
a) Further Assurances: Covenant to Sie:n Documents. Each party shall
take all actions and do all things, and execute, with acknowledgment or affidavit, if required, any
and all documents and writings, including estoppel certificates, that may be necessary or proper
to achieve the purposes and objectives of this Agreement.
b) Reimbursement and Apportionment. Nothing in this Agreement
precludes City and Developer from entering into any reimbursement agreements for
reimbursement to the Developer of the portion (if any) of the cost of any dedications, public
facilities and/or infrastructure that City, pursuant to this Agreement, may require as conditions of
the Future Approvals agreed to by the Parties, to the extent that they are in excess of those
reasonably necessary to mitigate the impacts of the Project or development on the Project.
c) Processine:, Upon satisfactory completion by Developer of all required
preliminary actions and payments of appropriate processing fees, if any, City shall, subject to all
legal requirements, promptly initiate, diligently process, and complete all required steps, and
promptly act upon any approvals and permits necessary for the development by Developer in
accordance with this Agreement, including, but not limited to, the following:
1) the processing of applications for and issuing of all discretionary
approvals requiring the exercise of judgment and deliberation by City, including without
limitation, the Future Approvals;
14
I
I
2) the holding of any required public hearings; and
3) the processing of applications for and issuing of all ministerial
approvals requiring the determination of conformance with the Applicable Rules, including,
without limitation, site plans, grading plans, improvement plans, building plans and
specifications, and ministerial issuance of one or more final maps, grading permits, improvement
permits, wall permits, building permits, lot line adjustments, encroachment permits, temporary
use permits, certificates of use and occupancy and approvals and entitlements and related matters
as necessary for the completion of the development of the Project ("Ministerial Approvals").
d) Processine: Durine: Third Party Litie:ation. The filing of any third party
lawsuit(s) against City and Developer relating to this Agreement or to other development issues
affecting the Project shall not delay or stop the development, processing or construction of the
Project, approval of the Future Approvals, or issuance of Ministerial Approvals, unless the third
party obtains a court order preventing the activity. City shall not stipulate to or fail to oppose the
issuance of any such order.
e) Defense of Ae:reement, City agrees to and shall timely take all actions
which are necessary or required to uphold the validity and enforceability of this Agreement and
the Applicable Rules, subject to the indemnification provisions of this Section. Developer shall
indemnifY, protect and hold harmless, the City and any agency or instrumentality thereof, and/or
any of its officers, employees, and agents from any and all claims, actions, or proceedings
against the City, or any agency or instrumentality thereof, or any of its officers, employees and
agents, to attack, set aside, void, armul, or seek monetary damages resulting from an approval of
the City, or any agency or instrumentality thereof, advisory agency, appeal board or legislative
body including actions approved by the voters of the City, concerning this Agreement. The City
shall promptly notifY the Developer of any claim, action, or proceeding brought forth within this
time period. The Developer and City shall select joint legal counsel to conduct such defense and
which legal counsel shall represent both the City and Developer in the defense of such action.
The City in consultation with Developer shall estimate the cost of the defense of the action and
Developer shall deposit said amount with the City. City may require additional deposits to cover
anticipated costs. City shall refund, without interest, any unused portions of the deposit once the
litigation is finally concluded. Should the City fail to either promptly notifY or cooperate fully,
Developer shall not thereafter be responsible to indemnifY, defend, protect, or hold harmless the
City, any agency or instrumentality thereof, or any of its officers, employees, or agents, Should
the Developer fail to post the required deposit within five (5) working days from notice by City,
City rnay terminate this Agreement pursuant to its terms. If City elects to terminate this
Agreement pursuant to this Section, it shall do so by written notice to Developer, whereupon this
Agreement shall terminate, expire and have no further force or effect as to the Project.
Thereafter, the terminating party's indemnity and defense obligations pursuant to this Agreement
shall have no further force or effect as to acts or omissions from and after the effective date of
said termination.
10. ComDliance: Termination: Modifications and Amendments.
a) Review of ComDliance. The City's Director of Community Development
shall review this Development Agreement once each year, on or before each armiversary of the
15
Effective Date ("Periodic Review"), in accordance with this Section, and the Applicable Rules
and the City's Municipal Code in order to determine whether or not Developer is out-
of-compliance with any specific term or provision of this Agreement. At commencement of
each Periodic Review, the Director shall notify Developer in writing that the Periodic Review
will commence or has
commenced,b) Prima Facie Compliance. Within thirty (30) days after receipt of
the Director's notice that the Periodic Review will commence or has commenced (and
unless Developer requests and is granted a waiver by the City), Developer shall demonstrate that it
has,during the preceding twelve (12) month period, been in reasonable prima facie compliance
with this Agreement. For purposes of this Agreement, the phrase "reasonable prima
facie compliance" shall mean that Developer has demonstrated that it has acted in accordance with
this
Agreement.c) Notice of Non-Compliance. Cure Ril!hts, If during
any Periodic Review, the Director reasonably concludes that (i) Developer has not demonstrated that it
is in reasonable prima facie compliance with this Agreement, and (ii) Developer is out
of compliance with a specific, substantive term or provision of this Agreement, then the Director may
issue and deliver to Developer a written notice of non-compliance ("
Notice of Non-Compliance")detailing the specific reasons for non-compliance (
including references to sections and provisions of this Agreement and Applicable Rules which have
allegedly been breached) and a complete statement of all facts demonstrating such
non-compliance. Developer shall have thirty 30) calendar days following its receipt of the Notice of
Non-compliance in which to cure said failure(s); provided, however, that if anyone or more of
the item(s) of non-compliance set forth in the Notice of Non-compliance cannot
reasonably be cured within said thirty (30) calendar day period, then Developer shall not be in breach
of this Agreement if it commences to cure said item(s) within said thirty (30)
day period and diligently prosecutes said cure to completion.Upon completion of each Periodic Review, the
Director shall submit a report to the City Council if the Director
determines that Developer has not satisfactorily demonstrated reasonable prima facie compliance with this Agreement. The
Director shall submit a report to the City Council stating what steps have been taken by
the Director or what steps the Director recommends that the City subsequently take
with reference to the alleged non-compliance. (If the Director determines that
the Developer has demonstrated reasonable prima facie compliance with this Agreement, the Director will not be
required to submit a report to the City Council.) Non-performance by either party shall
be excused when it is delayed unavoidably and beyond the reasonable control of the Parties as a result of
any
of the events identified in Section 19 of this Agreement.d)
Termination of Develooment Al!reement as to Breachinl! Party. If Developer fails to timely cure any item(
s) of non-compliance set forth in a Notice of Non-compliance, then the City shall
have the right, but not the obligation, to initiate proceedings for the purpose of terminating
this Agreement. Such proceedings shall be initiated by notice to the Developer, followed by meetings
between the Developer and the City for the purpose of good faith negotiations between the
Parties to resolve the dispute, If the City determines to terminate this Agreement following
a reasonable number of rneetings and a reasonable opportunity for the Developer to cure any
non-performance, the City shall give Developer written notice of its intent to so terminate
this
I
I
time and place for a public hearing on the issue, all in compliance with the Development
Agreement Statutes. At the noticed public hearing, Developer and/or its designated
representative shall be given an opportunity to make a full and public presentation to the City.If, following the taking of evidence and hearing of testimony at said public hearing, the Cityfinds, based upon a preponderance of evidence, that the Developer has not demonstrated
compliance with this Agreement, and that Developer is out of material compliance with a
specific, substantive term or provision of this Agreement, then the City may (unless the Parties
otherwise agree in writing) terminate this Agreement.
e) Notice and Oooortunity to Cure if City Breaches. If at any time
Developer reasonably concludes that (1) City has not acted in prima facie compliance with this
Agreement, and (ii) City is out of compliance with a specific, substantive term or provision of
this Agreement, then Developer may issue and deliver to City written notice of City's non-
compliance, detailing the specific reasons for non-compliance (including references to
sections and provisions of this Agreement which have allegedly been breached) and a complete
statement of all facts demonstrating such non-compliance. Developer shall also meet with the
City as appropriate to discuss any alleged non-compliance on the part of the City. Cityshallhavethirty30) calendar days following its receipt of the Notice of Non-compliance in
which to cure said failure(s); provided, however, that if anyone or more of the item(s)
of non-compliance set forth in the Notice of Non-compliance cannot reasonably be cured
within said thirty (30) calendar day period, then City shall not be in breach of this Agreement if it
commences to cure said item(s)within said thirty (30) day period and
diligently prosecutes said cure to completion.f) Modification or
Amendment. of Develooment Aereement. Subject to the notice and hearing requirements of
the applicable Development Agreement Statutes, this Agreement may be modified or amended from time to time
only with the written consent of Developer and the City or their successors and assigns in
accordance with the provisions of the
Municipal Code and Government Code 965868.g) No Cross-Default.
Notwithstanding anything set forth in this Agreement to the contrary, in no event shall the breach of ordefaultunderthisAgreementbyanyDeveloperwithrespecttoaProjectconstituteabreachofor
default under this Agreement with respect to any other Project. In other words, each Project identified
in this Agreement shall stand alone for purposes of its compliance with the
terms, provisions and requirements of this Agreement.11, Ooeratine Memoranda. The
provisions of this Agreement require a close degree of cooperation between City andDeveloper. The anticipated refinements to the Project and other development activity at the
Project may demonstrate that clarifications to this Agreement and the Applicable Rules are appropriate with
respect to the details of performance of City and Developer, If and when, from time to time during
the term of this Agreement, City and Developer agree that such clarifications are
necessary or appropriate, they shall effectuate such clarifications through operating memoranda approvedinwritingbytheCityandDeveloperwhich, after execution, shall be attached hereto and become
a part of this Agreement, and the same rnay be further clarified from time to time asnecessarywithfuturewrittenapprovalbyCityandDeveloper. Operating memoranda are not
intended to constitute an amendment to this Agreement but mere ministerial clarifications; therefore,
no public notice or hearing shall be required. The City Attorney shall be
authorized,
Developer, to determine whether a requested clarification may be effectuated pursuant to this
Section or whether the requested clarification is of such a character to constitute an amendment
hereof which requires compliance with the provisions of Section 1O(t) above. The authority to
enter into such operating memoranda is hereby delegated to the City Manager and the City
Manager is hereby authorized to execute any operating memoranda hereunder without further
action by the City Council. No such memoranda shall be effective unless executed by a duly
authorized officer of Equity Office Properties Trust, a Maryland real estate investment trust and
a member of its legal department.
12, Term of Al!reement. This Agreement shall become operative and shall
commence upon the Effective Date. Subject to the Automatic Renewal (defined below), this
Agreement shall remain in effect for a period of ten (10) years from the Effective Date (the
Initial Term") unless this Agreement is terminated, modified or extended upon mutual written
consent of the Parties hereto or as otherwise provided in this Agreement. Notwithstanding the
foregoing, in the event that, prior to the expiration of the eighth anniversary of the Effective
Date, Developer has applied for and received a building permit with respect to either the City
Plaza Two Site or the 605 Building Site, the Initial Term of this Agreement shall be
automatically extended for an additional period of five (5) years (the "Automatic Renewal") and
shall expire fifteen (15) years after the Effective Date unless terminated, modified or extended
upon mutual written consent of the Parties hereto or as otherwise provided in this Agreement.
Following expiration or termination of the term hereof, this Agreement shall be deemed
terminated and of no further force and effect; provided, however, that no such expiration or
termination shall automatically affect any right of the City and Developer arising from City
approvals on the Project prior to expiration or termination of the term hereof and arising from the
duties of the Parties as prescribed in this Agreement.
13, Administration of Al!I"eement and Resolution of Disputes,
a) Administration of Disputes. All disputes involving the enforcement,
interpretation or administration of this Agreement (including, but not limited to, decisions by the
City staff concerning this Agreement and any of the projects or other matters concerning this
Agreement which are the subject hereot) shall first be subject to good faith negotiations between
the Parties to resolve the dispute. In the event the dispute is not resolved by negotiations, the
dispute shall then be heard and decided by the City Council. Thereafter, any decision of the City
Council which remains in dispute shall be appealed to, heard by, and resolved pursuant to the
Mandatory Alternative Dispute Resolution procedures set forth in Section 13(b) hereinbelow.
Unless the dispute is resolved sooner, City shall use diligent efforts to complete the foregoing
City Council review within thirty (30) days following receipt of a written notice of defauJt or
dispute notice, Nothing in this Agreement shall prevent or delay Developer or City from seeking
a temporary or preliminary injunction in state or federal court if it believes that injunctive relief
is necessary on a more immediate basis.
b) Mandatorv Alternative Dispute Resolution. After the provisions of
Section 13(a) above have been complied with, and pursuant to Code of Civil Procedure ~638, et
seq., all disputes regarding the enforcement, interpretation or administration of this Agreement
including, but not limited to, appeals from decisions of the City Council, all matters involving
Code of Civil Procedure ~I094.5, all Ministerial Approvals, Discretionary Approvals, Future
18
I
I
Approvals and the application of Applicable Rules) shall be heard and resolved pursuant to the
alternative dispute resolution procedure set forth in this Section 13 (b). All matters to be heard
and resolved pursuant to this Section 13(b) shall be heard and resolved by a single appointedrefereewhoshallbearetiredjudgefromeithertheCaliforniaSuperiorCourt, the California
Court of Appeals, the California Supreme Court, the United States District Court or the United
States Court of Appeals, provided that the appointed referee shall have significant and recent
experience in resolving land use and real property disputes. The Parties to this Agreement who
are involved in the dispute shall agree and appoint a single referee who shall then try all issues,
whether of fact or law, and report in writing to the Parties to such dispute all findings of fact and
issues and decisions of law and the final judgments made thereon, in sufficient detail to inform
each party as to the basis of the referee's decision. The referee shall try all issues as if he/she
were a California Superior Court judge, sitting without a jury, and shall (unless otherwise limited
by any term or provision of this Agreement) have all legal and equitable powers granted a
California Superior Court judge. Prior to the hearing, the Parties shall have full discovery rightsasprovidedbytheCaliforniaCodeofCivilProcedure. At the hearing, the Parties shall have the
right to present evidence, examine and cross-examine lay and expert witnesses, submit briefs
and have arguments of counsel heard, all in accordance with a briefing and hearing
schedule reasonably established by the referee. The referee shall be required to follow and adhere to
all laws, rules and regulations of the State of California in the hearing of testimony, admission
of evidence, conduct of discovery, issuance of a judgment and fashioning of remedy, subject
to such restriction on remedies as set forth in this Agreement. If the Parties involved in the
dispute are unable to agree on a referee, any party to the dispute may seek to have a single
referee appointed by a California Superior Court judge and the hearing shall be held in OrangeCountypursuanttoCaliforniaCodeofCivilProcedure ~640. The cost of any proceeding heldpursuanttothisSection13(b) shall initially be borne equally by the Parties involved in the dispute,
and each party shall bear its own attorneys' fees. Any referee selected pursuant to this Section
shall be considered a temporary judge appointed pursuant to Article 6, Section 21 of theConstitutionoftheStateofCalifornia. The cost of the referee shall be borne equally by each party. Ifanypartytothedisputefailstotimelypayitsfeesorcosts, or fails to cooperate in the
administration of the hearing and decision process as determined by the referee, the referee shall, uponthewrittenrequestofanypartytothedispute, be required to issue a written notice of breach to
the defaulting party, and if the defaulting party fails to timely respond or cooperate with theperiodoftimesetforthinthenoticeofdefault (which in any event may not exceed thirty (30)
calendar days), then the referee shall, upon the request of any non-defaulting party, render
a default judgment against the defaulting party. At the end of the hearing, the referee shall issueawrittenjudgment (which may include an award of reasonable attorneys' fees and costsasprovidedelsewhereinthisAgreement), which judgment shall be final and binding between thePartiesandwhichmaybeenteredasafinaljudgmentinaCaliforniaSuperiorCourt. The refereeshallusehislherbesteffortstofinallyresolvethedisputeandissueafinaljudgmentwithinsixty (60)calendar days from the date of hislher appointment. Pursuant to Code ofCivilProcedureSection645, the decision of the referee may be excepted to and reviewed in like mannerasifmadebythe
Superior Court.I) Any party to the dispute may, in addition to any otherrightsorremediesprovidedbythisAgreement, seek appropriate judicial ancillary remedies fromacourtofcompetentjurisdictiontoenjoinanythreatenedorattemptedviolationhereof, or
enforce
specific performance the obligations and rights of the Parties hereto, except as otherwise
provided herein.
2) The Parties hereto agree that (i) the City would not have entered
into this Agreement if it were to be held liable for general, special or compensatory damages for
any default under or with respect to this Agreement or the application thereof, and (ii) Developer
has adequate remedies, other than general, special or compensatory damages, to secure City's
compliance with its obligations under this Agreement. Therefore, the undersigned agree that
neither the City nor its officers, employees or agents shall be liable for any general, special or
compensatory damages to Developer or to any successor or assignee or transferee of Developer
for the City's breach or default under or with respect to this Agreement; and Developer covenants
not to sue the City, its officers, employees or agents for, or claim against the City, its officers,
employees or agents, any right to receive general, special or compensatory damages for the City's
default under this Agreement. Notwithstanding the provisions of this Section 13(b )(2), City
agrees that Developer shall have the right to seek a refund or return of a deposit made with the
City or fee paid to the City in accordance with the provisions of the Applicable Rules.
c) In the event Developer challenges an ordinance or regulation of the City as
being outside of the authority of the City pursuant to this Agreement, Developer shall bear the
burden of proof in establishing that such ordinance, rule, regulation, or policy is inconsistent
with the terms of this Agreement and applied in violation thereof.
14. Transfers and Assi211ments.
a) Ril!:ht to Assi211. Developer shall have the right to encumber, sell,
transfer or assign all or any portion of the Project which it may own to any person or entity (such
person or entity, a "Transferee") at any time during the term of this Agreement without approval
of the City, provided that Developer provides the City with written notice of the applicable
transfer within thirty (30) days of the transfer, along with notice of the name and address of the
assignee. Nothing set forth herein shall cause a lease or license of any portion of the Project to
be deemed to constitute a transfer of the Project, or any portion thereof. This Agreement may be
assigned or transferred by Developer as to and in conjunction with the sale or transfer of all or a
portion of the Project, as permitted by this Section 14, provided that the Transferee has agreed in
writing to be subject to all of the provisions of this Agreement applicable to the portion of the
Proj ect so transferred.
b) Liabilities DDon Transfer. Upon the delegation of all duties and
obligations and the sale, transfer or assignment of all or any portion of the Project to a
Transferee, Developer shall be released from its obligations under this Agreement with respect to
the Project or portion thereof so transferred arising subsequent to the effective date of such
transfer if (I) Developer has provided to City thirty (30) days' prior written notice of such
transfer and (2) the Transferee has agreed in writing to be subject to all of the provisions hereof
applicable to the portion of the Project so transferred. Upon any transfer of any portion of the
Project and the express assumption of Developer's obligations under this Agreement by such
Transferee, the Transferee becomes a party to this Agreement, and the City agrees to look solely
to the Transferee for compliance by such Transferee with the provisions of this Agreement as
such provisions relate to the portion of the Project acquired by such Transferee. Any such
20
I
I
Transferee shall be entitled to the benefits of this Agreement and shall be subject to the
obligations of this Agreement, applicable to the parcel(s) transferred. A default by anyTransfereeshallonlyaffectthatportionoftheProjectownedbysuchTransfereeandshallnot
cancel or diminish in any way Developer's rights hereunder with respect to any portion of the
Project not owned by such Transferee. The Transferee shall be responsible for the reporting and
annual review requirements relating to the portion of the Project owned by such Transferee, and
any amendment to this Agreement between City and a transferee shall only affect the portion of
the Project owned by such transferee. In the event that Developer retains its obligations under
this Agreement with respect to the portion of the Project transferred by Developer, the
Transferee in such a transaction (a "Non-Assuming Transferee") shall be deemed to have
no obligations under this Agreement, but shall continue to benefit from all rights provided by
this Agreement for the duration of the term set forth in Section 12. Nothing in this section
shall exempt any Non-Assuming Transferee from payment of applicable fees and
assessments or compliance with applicable permit conditions of approval or
mitigation measures.15. Mortl!:3l!:e Protection. The Parties hereto agree that this Agreement
shall not prevent or limit Developer, at Developer's sole discretion, from encumbering the Projectoranyportionthereoforanyimprovementthereoninanymannerwhatsoeverbyanymortgage,
deed oftrust, sale/leaseback, synthetic lease or other security device securing financing with
respect to the Project. City acknowledges that the lender(s) providing such financing may
require certain Agreement interpretations and modifications and agrees, upon request, from time to
time, to meet with Developer and representatives of such lender(s) to negotiate in good faith
any such request for interpretation or modification; provided, however, that no such
interpretations or modifications shall diminish the public benefits received under this Agreement unless
the City agrees to the acceptance of such diminished public benefits. City will not
unreasonably withhold its consent to any such requested interpretation or modification, provided such
interpretation or modification is consistent with the intent and purposes of this Agreement. Any mortgagee
of a mortgage or a beneficiary of a deed of trust or landlord undera sale/leaseback, synthetic
lease or lender providing secured financing in any manner ("Mortgagee") on the Project shall
be entitled to the following rights
and privileges:a) Mortl!:al!:e Not Rendered Invalid. Neither entering into
this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien
of any mortgage, deed of trust or other financing documents on the Project made in good faith
and
for value.b) Request for NoticetoMortl!:al!:ee. The Mortgagee of any
mortgage, deed of trust or other financing documents encumbering the Project, or any part thereof,
who has submitted a request in writing to City in the manner specified herein for giving notices
shall be entitled to receive written notification from City of any default by Developer intheperformanceofDeveloper's obligations under
this Agreement.c) Mortl!:3l!:ee'S Time to Cure. If City timely receives 3 request
from 3 Mortgagee requesting a copy of any notice of default given to Developer under the terms
of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10)
days of sending the notice of default to Developer. The Mortgagee shall have the right, but
not the obligation, to cure the default during the remaining cure period allowed Developer
under
Agreement, as well as any reasonable additional time necessary to cure, including reasonable
time for reacquisition of the Project or the applicable portion thereof.
d) Proiect Taken Subiect to Oblil!:ations. Any Mortgagee who comes into
possession of the Project or any portion thereof, pursuant to foreclosure of the mortgage, deed of
trust, or other financing documents, or deed in lieu of foreclosure, shall take the Project or
portion thereof subject to the terms of this Agreement; provided, however, that in no event shall
such Mortgagee be held liable for any default or monetary obligation of Developer arising prior
to acquisition of title to the Project by such Mortgagee, except that no such Mortgagee (nor its
successors or assigns) shall be entitled to a building permit or occupancy certificate until all
delinquent and current fees and other monetary obligations due under this Agreement for the
Project or portion thereof acquired by such Mortgagee have been paid to City.
16. Notices. All notices under this Agreement shall be in writing and shall be
deemed delivered when personally received by the addressee, or within three (3) calendar days
after deposit in the United States mail by registered or certified mail, postage prepaid, return
receipt requested, to the following Parties and their counsel at the addresses indicated below;
provided, however, if any party to this Agreement delivers a notice or causes a notice to be
delivered to any other party to this Agreement, a duplicate of that Notice shall be concurrently
delivered to each other party and their respective counsel.
Jfto City:City of Orange
300 East Chapman Avenue
Orange, CA 92866
Attention: City Manager
Facsimile: (714) 744-
5147 With a copy to:David A. DeBerry,
Esq.City
Attorney City of
Orange 300 East Chapman
Avenue Orange, California
92866 Facsimile: (714)
538-7157 Jf
to Developer:With
copies to:Equity Office Management, L.
L.C.One
Market Street Spear Tower,
Suite 600 San Francisco,
California 94105-1000 Attention:
Susan Taymor Sagy
Facsimile: (415) 369-2421 Allen Matkins
Leck Gamble & Mallory LLP 1900
Main Street, 5th
Floor Irvine, California 92614 Attention:
R. Michael Joyce,
Esq.
I
I
andto-Equity Office Management, L.L.C.
Los Angeles Regional Office
550 South Hope Street, Suite 2200
Los Angeles, California 90071
Attention: Regional Senior Vice President
Facsimile: (213) 438-
4601 andto-Equity Office Management, L.L.
C.Two North Riverside Plaza, Suite
2100 Chicago, Illinois
60606-2601 Attention: Jeffrey S.
Arnold, Esq.Facsimile: (
312) 559-5209 Notice given in any other manner shall be effective when received by
the addressee. The addresses for notices may be changed by notice given in accordance
with this provision.17. Severability and Termination. If any provision of this
Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, or if any
provision of this Agreement is superseded or rendered unenforceable according to any
law which becomes effective after the Effective Date, the remainder of this Agreement shall be effective
to the extent the remaining provisions are not rendered impractical to perform, taking
into consideration the purposes
of this Agreement.18. Time of Essence. Time is of the essence for each provision of
this Agreement of which time
is an element.19. Force Maieure. Changed conditions, changes in local, state or
federal laws or regulations, floods, earthquakes, delays due to strikes or other labor
problems, moratoria enacted by City or by any other governmental entity or agency (subject to Sections 5 and
8 of this Agreement), third-party litigation, injunctions issued by any
court of competent jurisdiction,initiatives or referenda, the inability to obtain materials, civil commotion, fire,
acts of God, or other circumstances which substantially interfere with the development
or construction of the Project, or which substantially interfere with the ability of any of the
Parties to perform its obligations under this Agreement, shall collectively be referred to
as "Events of Force Majeure". If any party to this Agreement is prevented from performing
its obligation under this Agreement by any Event of Force Majeure, then, on the condition that
the party claiming the benefit of any Event of Force Majeure, (a) did not cause any such Event
of Force Majeure and b) such Event of Force Majeure was beyond said party's reasonable
control, the time for performance by said party of its obligations under this Agreement shall be
extended by a number of days equal to the number of days that said Event of Force Majeure continued
in effect, or by the number of days it takes to repair or restore the damage caused by any
such Event to the condition which existed prior to the occurrence of such Event, whichever
is longer. In addition,the termination date of this Agreement as set forth in Section 12 of
this Agreement shall be extended by the number of days equal to the number of days that any
Events of Force
Majeure
20. Waiver. No waiver of any provision of this Agreement shall be effective unless
in writing and signed by a duly authorized representative of the party against whom enforcement
of a waiver is sought.
21. No Third Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the Developer and the City and their successors and assigns.
Notwithstanding anything contained in this Agreement to the contrary, no other person
including Mills, as defined in Section 7(e) of this Agreement) shall have any right of action
based upon any provision of this Agreement.
22. Attornevs' Fees. In the event any dispute hereunder is resolved pursuant to the
terms of Section 13 (b) hereof, or if any party commences any action for the interpretation,
enforcement, termination, cancellation or rescission of this Agreement, or for specific
performance for the breach hereof, the prevailing party shall be entitled to its reasonable
attorneys' fees, litigation expenses and costs arising from the action. Attorneys' fees under this
Section shall include attorneys' fees on any appeal as well as any attorneys' fees incurred in any
post judgment proceedings to collect or enforce the judgment.
23. Incomoration of Exhibits. The following exhibits which are part of this
Agreement are attached hereto and each of which is incorporated herein by this reference as
though set forth in full:
a)
b)
c)
City of Orange;
Exhibit "A-I" - Legal Description ofthe City Plaza Two Site;
Exhibit "A-2" - Legal Description of 605 Building Site;
Exhibit "B" - Copyof Resolution No. 9843 of the City Council of the d)
e)
Exhibit "
C" - Legal Descriptionof the City Tower Two Site; and Exhibit "D" -
Public Benefit Fees.24. Copies of
Applicable Rules. Prior to the Effective Date, the Parties shall prepare two (2) sets
of the Applicable Rules, one each for City and Developer, so that if it becomes necessary in the
future to refer to any of the Applicable Rules, there will be a common set available to the
Parties.25. Authority to
Execute. Bindinl!: Effect. Developer representsand warrants to the City that it
has the power and authority to execute this Agreement and, once executed, this Agreement shall be
final, valid, binding and enforceable against Developer in accordance with its terms. The
City represents and warrants to Developer that (a) all public notices and public hearings have been
held in accordance with law and all required actions for the adoption of this Agreement have been
completed in accordance with applicable law; (b) this Agreement, once executed by the
City, shall be final, valid, binding and enforceable on the City in accordance with its terms;
and (c) this Agreement may not be amended, modified, changed or terminated in the future by
the City except in accordance with the terms and conditions set forth herein.24
I
I
26. Entire Al!:reement: Conflicts. This Agreement represents the entire agreementoftheParties. This Agreement integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements between the Parties or
their predecessors in interest with respect to all or any part of the subject matter hereof. Should
any or all of the provisions of this Agreement be found to be in conflict with any other provision
or provisions found in the Applicable Rules, then the provisions of this Agreement shall prevail.
27. Remedies. Upon either party's breach hereunder, the non-breaching party
shall be permitted to pursue any remedy provided for
hereunder.IN WITNESS WHEREOF, the Parties have each executed this Agreement on the
date first written
above.CITY OF
ORANGE:tt/
tlt APPROVED AS TO
FORM:
orney
By:
Theodore
Assistant
DEVELOPER:CA-THE CITY
LIMITED PARTNERSHIP,a Delaware
limited partnership By: EOM GP, L.L.C., a
Delaware limited liability company, its
general
partner
By:By:
Name: Sv Title: \/,rcr2 ~IDkI\\
r-
ACKNOWLEDGMENTS
STATE OF CALIFORNIA )
5a.n "FrC!.fJu-:>tll ) ss.
COUNTY OF ORANGE )
On \)ece.vn loeYlt ~()d.f, before me'vcJevie, L. .fG.ww it€>, a Notary Public
in and for said state, personally appeared SlA'OC\..V1 :jCl~ '
personally known to me (01 llFe'litl! te Ifte sa the bllsis sf slltisfa\:in~l "',,,1leaee) to be the person
whose name is subscribed to the within instrument and acknowledged to me thatM/she executed
the same in imlher authorized capacity, and that by hiilher signature on the instrument, the
person, or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
J"'--~ ~-_~-.- ~/ _.
v \
J t-1f ~ ~~ltrWW
f Notary Public in
and for said State MvCllnlm......Mav14.2007 SEAL)
STATE OF CALIFORNIA )
ss.
COUNTY OF ORANGE )
On
De.cemou ~':J. ~
lJO";, before me, 5'
h""'J)n L.., (I"'n"J~/)rJaNotaryPublic inand for said
state, personalty appeared ~~~. ~~~~ ~ 'personally known to me (
OqllO ,,,J to 111" v.. . ~ ~,,' { /. .i8~1!~e) to be the person whose name is subscribed
to the within instrument and acknowledged to me that he/slw executed the same in his/
hei: authorized capacity, andthat by his/.k@r signature on theinstrument, the person, or the entity
upon behalf of which the person acted, executed the instrument.WITNESS my hand and
official seal.OA n~~(?~hhija#No
ary Public inanaforaidStatSEAL)L.Cc!mrr~
lM
tll4S42UI
NlIIc . Cdamla ClIaI9 CounIV
Mvc:-......O'Cao.
z
I
I
EXHIBIT "A-
I"LEGAL
DESCRIPTION CITY PLAZA
TWO PARCEL
A:PARCEL 2, IN THE CITY OF ORANGE, COUNTY OF ORANGE, STATE
OF CALIFORNIA, AS SHOWN ON LOT LINE ADJUSTMENT LL 2001-
05, RECORDED APRIL 30,2001 AS INSTRUMENT NO. 20010270254, OF
OFFICIAL RECORDS.EXCEPT FROM THE PORTION THEREOF INCLUDED WITHIN
THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF FRACTIONALSECTION35,TOWNSHIP 4 SOUTH, RANGE 10 WEST IN THE RANCHO LAS BOLSAS, INTHECITYOFORANGE, COUNTY OF ORANGE, STARE OF CALIFORNIA, ASPERMAPRECORDEDINBOOK51, PAGE 10 OF SAID MISCELLANEOUS MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, ALL OIL AND
OTHER MINERAL RIGHTS IN OR UNDER SAID LAND LYING BELOW A DEPTH OF 500 FEETFROMTHESURFACETHEREOF, BUT WITHOUT THE RIGHT OF ENTRY, AS RESERVED
IN THE DEED FROM CHESTER M. BARNES AND OTHERS, RECORDED OCTOBER 2,
1959 IN BOOK 4911, PAGE 214,
OFFICIAL RECORDS.ALSO EXCEPT THEREFROM ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,NATURAL GAS, NATURAL GAS RIGHTS AND OTHER
HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY BE BELOW THE UPPER 100 FEETOFTHESUBSURFACEOFTHATPORTIONOFTHELANDHEREINDESCRIBEDTOGETHERWITHTHEPERPETUALRIGHTOFDRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND REMOVING THE SAME FROM SAID LANDORANYOTHERLAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALL
Y DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH ORACROSSTHESUBSURFACEOFTHELANDHEREINABOVEDESCRIBED, AND TOBOTTOMSUCHWHIPSTOCKEDORDIRECTIONALLYDRILLEDWELLS, TUNNELSANDSHAFTSUNDERANDBENEATHORBEYONDTHEEXTERIORLIMITSTHEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN ANDOPERATEANYSUCHWELLSORMINES, WITHOUT, HOWEVER, THE RIGHT TODRILL, MINE,EXPLORE AND OPERATE THROUGH THE SURFACE OF SAID UPPER 100FEETOFTHESUBSURFACEOFTHELANDHEREINABOVEDESCRIBEDOROTHERWISEINSUCHMANNERASTOENDANGERTHESAFETYOFANYHIGHWAYTHATMAYBECONSTRUCTEDONSAIDLANDS, AS EXCEPTED IN FAVOR OF HENRYJ. SIEVERS AND FERN o. SIEVERS IN FINAL ORDER OF CONDEMNATION INSUPERIORCOURTCASENO. 98716 ORANGE COUNTY, A COPY OF WHICH WASRECORDEDJANUARY29, 1963 IN BOOK 6412, PAGE 519, OFFICIAL RECORDS OF SAIDORANGECOUNTY,AS TO THAT PORTION OF SAID LAND LYING SOUTHERLY OFTHESOUTHERLYLINEOFSAIDLOTS33AND34OFTHEDAWNTRACTASPERMAPFILEDINBOOK8, PAGE 21 OF MISCELLANEOUS MAPS, AND EASTERLY OF THE WEST LINEOFTHENORTHEASTQUARTEROFTHESOUTHEASTQUARTEROFSAID
SECTION 35.
EXHIBIT "
ALSO EXCEPT ALL SUB SURF ACE WATER AND SUBSURF ACE WATER RIGHTS IN
AND UNDER SAID LAND.
PARCELB:
A NONEXCLUSIVE EASEMENT FOR UTILITY FACILITIES FOR THE BENEFIT OF
PARCEL A, IN, ON, OVER, TO, UNDER, THROUGH, UPON AND ACROSS THE REAL
PROPERTY DESCRIBED IN THAT CERTAIN DECLARATION OF UTILITY LINE
EASEMENT, DATED JULY 11,1996, AND RECORDED JULY 11, 1996 AS INSTRUMENT
NO. 19960354693 OF OFFICIAL RECORDS, AS SET FORTH IN SAID DECLARATION.
PARCELC
A NON-EXCLUSIVE EASEMENT FOR PEDESTRIAN AND VEHICULAR
INGRESS,EGRESS, ACCESS, CIRCULATION AND SURFACE DRAINAGE OVER THE
REAL PROPERTY DESCRIBED IN THAT CERTAIN ROADWAY EASEMENT
AGREEMENT DATED APRIL 9, 1997, AND RECORDED APRIL 10, 1997 AS INSTRUMENT NO.
97-0165666 OF OFFICIAL
RECORDS.EXHffilT"
A-
I
I
EXHffilT "A-
2"LEGAL
DESCRIPTION 605 BUILDING
SITE PARCEL
A:PARCEL 2 OF THE LOT LINE ADJUSTMENT NO. LL94-1, IN THE CITY
OF ORANGE,COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED APRIL 12,
1996 AS INSTRUMENT NO. 96-
180461, OFFICIAL RECORDS.EXCEPT FROM THAT PORTION THEREOF INCLUDED
WITHIN THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF
FRACTIONAL SECTION 35,TOWNSHIP 4 SOUTH, RANGE 10 WEST, IN THE RANCHO LAS BOLSAS,
IN THE CITY OF ORANGE, COUNTY OF ORANGE, STATE OF CALIFORNIA,
AS PER MAP RECORDED IN BOOK 51, PAGE 10 OF MISCELLANEOUS MAPS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, ALL OIL
AND OTHER MINERAL RIGHTS IN OR UNDER SAID LAND, LYING BELOW A DEPTH OF 500
FEET FROM THE SURFACE THEREOF, BUT WITHOUT THE RIGHT OF ENTRY, AS
RESERVED IN THE DEED FROM CHESTER M. BARNES AND OTHERS, RECORDED OCTOBER
2, 1999 IN BOOK 4911, PAGE
214, OFFICIAL RECORDS.ALSO EXCEPT THEREFROM ALL SUBSURFACE WATER
AND SUBSURFACE WATER RIGHTS IN AND
UNDER
SAID LAND.PARCELB:A NONEXCLUSIVE EASEMENT FOR UTILITY FACILITIES FOR
THE BENEFIT OF PARCEL A, IN, ON, OVER, TO, UNDER, THROUGH, UPON AND
ACROSS THE REAL PROPERTY DESCRIBED IN THAT CERTAIN DECLARATION
OF UTILITY LINE EASEMENT, DATED JULY 11, 1996, AND RECORDED JULY 11,
1996 AS INSTRUMENT NO. 19960354693 OF OFFICIAL RECORDS, AS SET FORTH
IN SAID
DECLARATION.
EXHIBIT"B"
COPY OF RESOLUTION NO. 9843
OF THE CITY COUNCIL OF THE CITY OF ORANGE
Behind this sheet.]
EXHIBIT"B"
1-
RESOLUTION NO. 9843
I
A RESOLUTION OF THE CITY COUNCIL OF
THE CITY OF ORANGE AMENDING
CONDITIONAL USE PERMIT 2378-01,
2379-01 AND 2380-01; MAJOR
SITE PLAN REVIEW NOS. 106-
99, 107-99 AND 108-99.WHEREAS, on October 10, 2001, !he City Council adopted resolutions approving the following conditional
use permits, major site plan reviews:1. The Chapman Sile consisting of 132,000squarefeetofofficespaceand
a 137-room hotel (Resolution No. 9519);2. City Tower Two Site consisting of465,000 square feet of office space
and eight-level parking structure (Resolution No. 9520);3. 605 Building Site consisting of200,000 square feet of office space
and a five-level parking structure (Resolution No. 9521);4. City Plaza Two Siteconsistingof136,000 square feet of office building
and a six-level parking structure (Resolution No. 9522); and WHEREAS, !heforegoingfourprojects
are hereaner referred to as !he EOP Projects; andIWHEREAS, !he City Council considered and approved Final Environmental ImpactReportNo. 1612-01 (hereafter, !he
FElR) which analyzed the environmental impacts of !heEOP Projects; andWHEREAS, !he City commissioned !he West Orange Circulati,on Stuc;ly hereafter, WOCStudy) to analyze the traffic impacts of the EOP Projects, expansion of
The Block at Orange and expansion ofUCI Medic.a1 Center; andWHEREAS, the WOC Study identified approximately $3.5 million in traffic improvementsandassignedfairsharecostsofsuchimprovements10thefollowingprojects: (I) UCI Medical Center expansion, 32~; (2) EOP Projects 38% (identified in the WOC Studyas
Spieker Office Properties); an\! (3) The Block at Orange expansion, ,WHEREAS, as a result oftheWOCStudytheFErn., as well as Resolution Nos.9519-9522 require the BOP Projectsasamitigationmeasuretopay38% of !he cost of the trafficimprovementsidentifiedinIheWOC
Study
as its fair share contribution hereafter WOC Traffic Improvements); and IWHEREAS, Resolutions Nos. 9519-9522 also require the BOP Projects to fully fundthreeimprovementsidentifiedinconditionsnos. 32, 34 and 35 of such resolutions and pursuant to condition no.
33, 10
pay
widening on Orangewood Avenue near its intersection with State Route 57 (hereafterconditions32-35 are referred to as, Traffic hnprovement Conditions);
and WHEREAS, on January 19, 2004, the Planning Commission adoptedResolutionNo. PC 04-04 approving a new development on the Chapman Site which
includes, but is not limited to, 58,260 square feet of commercial space and a fast
food restaurant hereafter, Best Buy Project) which would replace the Chapman Sitecomponent (City Council Resolution 9519) of the EOP
Projects; and WHEREAS, CA-The City (Chapman) Limited Partnership is in escrow
to sell the Chapman Site to City Town Center, L.P., for development of the Best
Buy Project; and WHEREAS, EOP-The City, L.L.G, has requestedthattheCityproportionallyreducethefairsharecostoftheWOCTraffichnprovementsandTraffichnprovementConditionstoreflectthefactthattheChapmanSiteisnolonger
a component of
the BOP Projects; and WHEREAS, City staff has determined that such a
reduction is appropriate and will fairly reflect the traffic impacts caused by the BOP Projects,
exc;lusive of the Chapman Site (hereafter,
the Remaining EOP Projects).NOW, THEREFORE, BE IT
RESOLVED THAT THE CITY COUNCIL OF THE CITY OF ORANGE
FINDS
AND DETERMINES as follows:1. The Remaining EOP Projects shall not bear the costs of the
Chapman Site's fair share of the WOC Traffic hnprovements, as originally identified in
the FEIR and the WOC Study. The fair shares of the BOP Projects for
the WOC Traffic hnprovements,as identified in the FEIR and WOC Study are reflected
in the attached ExhlbitA.2. The Remaining EOP Projects shall not bear the costs ofthe
Chapman Site's fair share of the Traffic hnprovcment Conditions as identified in
the FEIR. The fair shares of the EOP Projects for the Traffic hnprovement
Conditions, as identified in the FEIR are reflected in
the attached Exhibit A.3. This Resolution shall only become effective upon City
Town Center, L.P.,becoming the owner
of the Chapman Site.ADOPTED this 9th
day of March,
2004.ORIGINAL SIGNED
BY Mo\RKA. MURPHY Mark A. Murphy,
Mayor,
City of
Orange
ATTEST:
I
ORIGINAL SIGNED BY
MARY E. MURPHY
Mary E. Mwphy, City Clerk, City of Orange
I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby certifythattheforegoingResolutionwasdulyandregularlyadoptedbytheCityCounciloftheCityofOrangeataregularmeetingthereofheldonthe9thdayofMarch, 2004, by the followingvote:
AYES:
NOES:
ABSENT:
ABSTAIN:
COUNClLMEMBERS: Ambriz, Alvarez, Murphy, Coontz
COUNCILMEMBERS: None
COUNCaMEMBERS: Ca~cche
COUNClLMEMBERS: None
ORIGINAL SIGNED BY
MARy E. MURPHY
Mary E. Mwphy, City Clerk, City of Orange
I
3
EXHIBIT"B"
4-
EXHIBIT "A"
Intersection
Identified
In the WOe. Chapman City Tower City Plaza 2 T 605 Bldg. . I i Study' Site'
Two Share Share 1 II I -1
State
College &
Katella 0% 1% 1% 0%3 SR-57
NB RamOs & Katella 0% 1% 1% 0% 2%4 State
College & Gene AUtNWav 0% 0% 0% 0% 0%5 State
Colleoe & Oranoewood 0% 2% 1% 1% 4%6 SR-
57 SB RariiD. & Orangewood 1% 3% 2% 1% 7%10 .. .
Ha~ter&Cl:iapman... .6% 10"," 8% .5% '29%11
liewi$'IloChantl\ilit " 15%: .22.%: -'" .24%
14%
75%13 Th".
Cfl'(&..Ghaoman , . .. 8.%. 19.% .. .,. .. 4%' 2% 33%14 1-
5 SB Ramp on-Ramp & ChaDman 5% 16% 2% 1%
19 The.clly,Dr. & The CllY 'Nav, I' ,2% 1.0% .l(% .1% t5%
23 . . J;!astet.&UtriDsoti: '..4%" . . '7% , 14%. .:8% 33%
27 The CIIy Dr. & SR-2:! EB Ramos 1% 9% 4%
2%29 Hastk&'GaraenGroy& SlVd, t% ,. ,2~/o' ... 2%. t%
6%30 FaIJVi~& Garden GroveSlvd,.' ...1%. .....3%:. .. ..'.:6% . 3% 13,0/
ci 31 bllwis & Garden GrOve 'SllId;",, . "-:!1%::;.:"" , .3% t5% .9.% 28%
32 TheeltvDr. & Garden Grove., BlVd. 1% .7% . ",.:5%., 3% 16%
34 Howell & Katella 2% 0% 0% 0% 2%
Traffic
Improvement
Intersection
Chapman
Sit_ CIty Tower CltyPIua 605 EO Conditions 1 Tol I
32 The
Oty
Drive/
Garden Grove 10% 90% 'DO 33 SR.57JOrangewood Ave.(
Brfdge Widening) 14% 47% 25% 14% 'DO 34 Haster StJChapman Ave.
21% 36% 27% 16% 1100 35 lewis SUGardsn Grove
Blvd. 5% 13% 52% 30% 100 1 The shaded intersections
are identified
in the FEIR and woe Study and are the only intersections requiring traffic improvements and a fait share contribution.
2 Referred to as the '"North
Parce}"' in the FEIR tables.3 Conditionsarethose referenced in
City Council Resolutions 9S 19-9522.4 EXHIBIT"B"5-
EXHIBIT "c"
LEGAL DESCRIPTION
CITY TOWER TWO SITE
I
Parcel 2 of Parcel Map No. 81-769 recorded in Book 172, Pages 40-42 of Parcel Maps,
in the Office of the County Recorder of Orange
County,
California.I
EXHIBIT "
EXHIBIT "D"
PUBLIC BENEFIT FEES
A. Public Benefit Fees Payable Upon the First Resolution Date.
In the event that the Developer elects, in accordance with the terms and upon the conditions set
forth in subparagraph "(e)" of Section "7. Acknowledgements, Agreements and Assurances
on the Part of the Developer" of this Agreement, to pay to the City Public Benefit Fees
following the First Resolution Date, the Developer shall pay the following sums:
1. The Developer shall pay to the City or to the City of Orange Public Library
Foundation, Inc., as directed by the City, the sum of $ 100,000 (the "Library
Fee"). The Library Fee shall be payable as follows: (i) 70% of the Library Fee
i.e., $70,000) shall be paid within fifteen (15) days of the First Resolution
Election Date; (ii) 15% of the Library Fee (i.e., $15,000) shall be paid within two
2) business days following the date upon which Developer has received a
building permit with respect to the 605 Building Site; and (iii) 15% of the Library
Fee (i.e., $15,000) shall be paid within two (2) business days following the date
upon which Developer has received a building permit with respect to the City
Plaza Two Site; and
2. The Developer shall pay the sum of$IOO,OOO to the City or to the Community
Foundation of Orange, as directed by the City, to pay for a portion of the cost ofa
gymnasium at Grijalva Park (the "Park Fee"). The Park Fee shall be payable as
follows: (i) 70% of the Park Fee shall be paid within fifteen (15) days of the
Second Resolution Election Date; (ii) 15% of the Park Fee (i.e., $15,000) shall be
paid within two (2) business days following the date upon which Developer has
received a building permit with respect to the 605 Building Site; and (iii) 15% of
the Park Fee (i.e., $15,000) shall be paid within two (2) business days following
the date upon which Developer has received a building permit with respect to the
City Plaza Two Site.
B. Public Benefit Fees Payable Upon or After the Second Resolution Date.
In the event that the Agreement has not been previously terminated and Developer elects, in
accordance with the terms and upon the conditions set forth in subparagraph "(e)" of Section "7.
Acknowledgements, Agreements and Assurances on the Part ofthe Developer" of this
Agreement, to pay to City Public Benefit Fees following the Second Resolution Date, the
Developer shall pay the following sums:
1. Prior and as a condition precedent to the issuance of certificates of occupancy for
the City Plaza Two Site and the 605 Building Site, the Developer shall pay to the
City or to the City of Orange Public Library Foundation, Inc., as directed by the
City, the sum of $25,000 for each such certificate.
2. In addition and prior and as a condition precedent to the issuance of certificates of
occupancy for the City Plaza Two Site and the 605 Building Site, the Developer
EXHIBIT"D"
1-
shall pay to the City or to the Community Foundation of Orange, as directed by
the City, the sum of $25,000 for each such certificate.
3.Commencing on the Second Resolution Date and continuing thereafter on each
subsequent anniversary thereof during the balance of the Initial Term of the
Agreement, the Developer shall pay the sum of $30,000 to the City.
I
I
EXHIBIT"D"
2-
EXHIBIT "E"
CAMERA SITE LICENSE AGREEMENT
THIS CAMERA SITE LICENSE AGREEMENT ("Agreement") is made as of this
day of 2004, by and between CA-THE CITY
LIMITED PARTNERSHIP, a Delaware limited partnership ("Licensor"), and the CITY OF ORANGE,
a municipal corporation (the "
Licensee").
RECITALS:A. Licensor and Licensee are parties to that certain Development Agreement,
dated as of ,2004 (the "Development Agreement"). Pursuant to Section 7{c) of
the Development Agreement, Licensor has agreed to allow Licensee to use a portion of the roof
of that certain building commonly known as "City Plaza Tower" (the "Building"), for the
purpose of installing a video camera in order to monitor traffic flows on Metropolitan Drive, City
Drive,and the SR-22 ramps, all of which are located in the immediate vicinity of
the Building collectively, the "City
Monitored Streets").B. The parties desire to enter into this Agreement in order to identify
certain rights and obligations of Licensor and Licensee with respect to the installation,
maintenance and operation of the CCTV Camera (defined below) on the Building, all as
more particularly
described
below.AGREEMENT:NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Licensor and Licensee hereby agree
as follows:1. Term. The term of this License shall commence on the "Effective Date" (as
defined in the Development Agreement) and end on the earlier to occur of: (i) the date which
is ten IO) years following the Effective Date; or (ii) the date upon which
the Development Agreement terminates in accordance with the
terms thereof.2. License to Use. Subject to and upon the terms, provisions and conditions
hereinafter set forth, and in consideration of the duties, covenants and obligations
of Licensee hereunder, Licensor has granted and does hereby grant unto Licensee,
a nonexclusive license (the "License") to use the location depicted on Exhibit A attached
hereto (the Camera Site") for the installation, operation and maintenance, at Licensee'
s sole expense, of a traffic monitoring CCTV camera (the "CCTV
Camera"); provided,however, that Licensor hereby agrees to and shall arrange for and pay
any electrical utility service necessary for Licensee to operate the CCTV Camera at all times
during the term of this Agreement. In no event shall the Camera Site exceed _ L.)
square feet in area. This License is limited to allowing Licensee to install, maintain
and operate CCTV Camera equipment, which Licensee owns or leases, on the Camera Site
for the sole purpose of monitoring traffic flows on the City Monitored Streets and for
no other
EXHIBIT"
purpose. The CCTV Camera will be connected via a wireless link to the Licensee's
Traffic Management Center at 637 West Struck Avenue, Orange, California. In no event
shall Licensee use or install any vertical and/or horizontal risers, conduits or cable in the
Building without the prior written consent of Licensor.
I
3.Relocation. Licensor reserves the right to reasonably require Licensee, at Licensee's
expense, to move, alter or relocate the CCTV Camera to another location on the roof of
the Building as reasonably necessary during the term of this License in conformity with
the written notice of Licensor (herein referred to as a "rearrangement"); provided,
however, that when such rearrangement is done for the accommodation of any tenant or
lessee of the Building the cost of such arrangement shall be borne by Licensor. Any such
rearrangement shall take into account Licensee's use of the CCTV Camera for monitoring
traffic on the City Monitored Streets. Licensee shall be given not less than fifteen (15)
days' written notice of any rearrangement, which Licensee is required to make hereunder.
Such notice shall specify in reasonable detail the work to be done by Licensee and shall
specify the time that such work is to be accomplished. Licensor and Licensee shall
cooperate to minimize any disruption in the use of the CCTV Camera.
I
Notwithstanding anything contained herein to the contrary, Licensee's right to install the
CCTV Camera shall be subject to the approval rights of Licensor and Licensor's architect
and/or engineer with respect to the plans and specifications of the CCTV Camera, the
manner in which the CCTV Camera is attached to the roof of the Building and the
manner in which any cables are run to and from the CCTV Camera. The CCTV Camera
must be tagged with weatherproof labels showing the manufacturer and model thereof
and the name of the Licensee. In addition, any cable required to be used in connection
with the CCTV Camera that may be located within the Building's telecom closet{s) must
be tagged with the foregoing information. The precise specifications and a generaldescriptionoftheCCTVCameraalongwithalldocumentsLicensorreasonablyrequires
to review the installation of the CCTV Camera (the "Plans and Specifications") shall be
submitted to Licensor for Licensor's written approval no later than twenty (20) daysbeforeLicenseecommencestoinstalltheCCTVCamera. Licensee shall be solelyresponsibleforobtainingallnecessarygovermnentalandregulatoryapprovalsandforthe
cost of installing, operating, maintaining and removing the CCTV Camera. Licensee
shall notify Licensor upon completion of the installation of the CCTV Camera. If
Licensor determines that the CCTV Camera equipment does not comply with the
approved Plans and Specifications, that the Building has been damaged duringinstallationoftheCCTVCameraorthattheinstallationwasdefective, Licensor shall
notify Licensee of any noncompliance or detected problems and Licensee immediatelyshallcurethedefects. If the Licensee fails to immediately cure the defects, Licensee
shall pay to Licensor upon demand the cost, as reasonably determined by Licensor, of
correcting any defects and repairing any damage to the Building caused by such
installation. If at any time Licensor, in its sole discretion, deems it necessary, Licensee
shall provide and install, at Licensee's sole cost and expense, appropriate aesthetic
screening, reasonably satisfactory to Licensor, for the CCTV Camera (the "Aesthetic
Screening").
EXHffiIT"E"
2-
4. Roof Access. Licensor agrees that Licensee, upon reasonable prior written notice to
Licensor, shall have access to the roof of the Building and the Camera Site for the
purpose of installing, maintaining, repairing and removing the CCTV Camera, the
appurtenances and the Aesthetic Screening, if any, all of which shall be performed by
Licensee or Licensee's authorized representative or contractors, which shall be approved
by Licensor, at Licensee's sole cost and risk. It is agreed, however, that only authorized
engineers, employees or properly authorized contractors of Licensee, Federal
Communications Commission ("FCC") inspectors, or persons under their direct
supervision will be permitted to have access to the roof of the Building and the Camera
Site. Licensee further agrees to exercise firm control over the people requiring access to
the roof of the Building and the Camera Site in order to keep to a minimum the number
of people having access to the roof of the Building and the Camera Site and the frequency
of their visits.
5. Damage to Building. It is further understood and agreed that the installation,
maintenance, operation and removal of the CCTV Camera, the appurtenances and the
Aesthetic Screening, if any, is not permitted to damage the Building or the roof thereof,
or interfere with the use of the Building and roof by Licensor. Licensee agrees to be
responsible for any damage caused to the roof or any other part of the Building, which
may be caused by Licensee or any of its agents or representatives.
6. No Interference. Licensee agrees to install only equipment of types and frequencies
which will not cause unreasonable interference to Licensor or existing tenants of the
Building. In the event Licensee's equipment causes such interference, Licensee will take
any and all necessary steps to eliminate the interference. If said interference cannot be
eliminated within a reasonable period of time, in the judgment of Licensor, then Licensee
agrees to remove the CCTV Camera from the Camera Site.
7. Compliance With Law: Etc. Licensee shall, at its sole cost and expense, and at its sole
risk, install, operate and maintain the CCTV Camera in a good and workmanlike manner,
and in compliance with all Building, electric, communication, and safety codes,
ordinances, standards, regulations and requirements, now in effect or hereafter
promulgated, of the Federal Govemment, including, without limitation, the Federal
Aviation Administration ("FAA") or any successor agency of either the FCC or FAA
having jurisdiction over radio or telecommunications, and of the state, city and county in
which the Building is located. Under this License, the Licensor and its agents assume no
responsibility for the licensing, operation and/or maintenance of Licensee's equipment.
Licensee has the responsibility of carrying out the terms of any required FCC license in
all respects. The CCTV Camera shall be connected to Licensor's power supply in strict
compliance with all applicable Building, electrical, fire and safety codes. Neither
Licensor nor its agents shall be liable to Licensee for any stoppages or shortages of
electrical power furnished to the CCTV Camera or the Camera Site because of any act,
omission or requirement of the public utility serving the Building, or the act or omission
of any other tenant, invitee or licensee or their respective agents, employees or
contractors, or for any other cause beyond the reasonable control of Licensor. Neither
Licensor nor its agents shall have any responsibility or liability for the conduct or safety
EXHIBIT"E"
3-
I
I
of any of Licensee's representatives, repair, maintenance and engineering personnel while
in or on any part of the Building or the Camera Site.
8.Personal ProperlY. The CCTV Camera, the appurtenances and the Aesthetic Screening, if
any, shall remain the personal property of Licensee, and shall be removed by Licensee at
its own expense at the expiration or earlier termination of this Agreement or Licensee's
right to possession hereunder. Licensee shall repair any damage caused by such removal,
including the patching of any holes to match, as closely as possible, the color surrounding
the area where the equipment and appurtenances were attached. Licensee agrees to
maintain all of the Licensee's equipment placed on or about the roof or in any other part
of the Building in proper operating condition and maintain same in satisfactory condition
as to appearance and safety in Licensor's sole discretion. Such maintenance and
operation shall be performed in a manner to avoid any interference with any other tenants
or Licensor. Licensee agrees that at all times during the Term, it will keep the roof of the
Building and the Camera Site free of all trash or waste materials produced by Licensee or
Licensee's agents, employees or contractors.
9. Installation: Repairs: Etc.. In light of the specialized nature of the CCTV Camera,
Licensee shall be permitted to utilize the services of its choice for installation, operation,
removal and repair of the CCTV Camera, the appurtenances and the Aesthetic Screening,if any, subject to the reasonable approval of Licensor. Notwithstanding the foregoing,Licensee must provide Licensor with prior written notice of any such installation,
removal or repair and coordinate such work with Licensor in order to avoid voiding or
otherwise adversely affecting any warranties granted to Licensor with respect to the roof.
If necessary, Licensee, at its sole cost and expense, shall retain any contractor having a
then existing warranty in effect on the roof to perform such work (to the extent that it
involves the roof), or, at Licensee's option, to perform such work in conjunction with
Licensee's contractor. In the event the Licensor contemplates roof repairs that could
affect Licensee's CCTV Camera, or which may result in an interruption of the Licensee's
traffic monitoring, Licensor shall endeavor to notify Licensee at least 7 days in advance
except in cases of an emergency) prior to the commencement of such contemplated work
in order to allow Licensee to make other arrangements for such service.
10.Third Party Communication Services. Licensee shall not allow any provider of
telecommunication, video, data or related services ("Communication Services") to locate
any equipment on the roof of the Building or in the Camera Site for any purposewhatsoever, nor may Licensee use the Camera Site and/or CCTV Camera to provideCommunicationServicestoanunaffiliatedtenant, occupant or licensee of another
building, or to facilitate the provision of Communication Services on behalf of another
Communication Services provider to an unaffiliated tenant, occupant or licensee of the
Building or any other building.
11.Standard License Agreement. Licensee acknowledges that Licensor may at some time
establish a standard license agreement (the "Standard License Agreement") with respecttotheuseofroofspacebytenantsoftheBuilding. Licensee, upon request of Licensor,
shall enter into such Standard License Agreement with Licensor provided that such
EXHIBIT"E"
4-
agreement does not materially alter the rights of Licensee hereunder with respect to the
Camera Site.
12. Waiver of Damages from Certain Causes. Licensor, Site Manager and their respective
owners, members, partners, principals, officers, directors, shareholders, agents,
employees and contractors (collectively, the "Licensor Related Parties") shall not be
liable or responsible to Licensee, and Licensee hereby waives any claim, for any loss or
damage to any property or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition or other order of
govemmental body or authority, or for any damage or inconvenience which may arise
through maintenance, repair or alteration of any part of the Building, or failure to make
any such repairs, any act or omission of any party other than Licensor or the Licensor
Related Parties, and any causes not reasonably within the control of Licensor. The
obligations of City under this Section 12 shall survive the termination of this Agreement
with respect to any claims or liability arising prior to such termination.
12. Licensee's Insurance.
Unless it is a self-insured public entity, the Licensee shall maintain at
all appropriate times during the term of this Agreement, and shall cause,
as appropriate, each contractor, subcontractor, consultant or other party hired by
it pursuant to this Agreement to maintain at all times during the term of
this Agreement, at least the following
insurance:a) Comprehensive general liability insurance with the premiums
thereon fully paid in advance, issued by an insurance company acceptable to
Licensor,such insurance to afford minimum protection as
follows:Bodily Injury 2,000,000.00 for injury including death to
any person and for all injuries sustained by
more than one person in anyone
accident.Property Damage 2,000,000.00 for damage as a result of
any
accident.Contractual Liability 1,000,000.
00 b) Pursuant to Section 3700 of the California Labor Code, workers'
compensation insurance with employer's liability in the amoUnts required by law with respect
to Licensee's obligations under this
Agreement.Licensee agrees that: (1) each such comprehensive general liability insurance
policy shall name Licensor, Licensor's property manager for the Building (the "Site
Manager")and their respective members, partners, principals, and agents as additional insureds;
and 2) each such policy shall contain a provision that it may not be canceled unless at
least ten (10) days prior written notice of cancellation is given to
Licensor.EXHIBIT"
E"
I
14.Indemnity. To the fullest extent permitted by law, the Licensee shall indenmify, hold
harmless and defend the Licensor (by counsel acceptable to Licensor), the Site Manager and
their respective owners, members, partners, principals, officers, directors, shareholders,
agents, employees and contractors from and against all claims, damages, losses and
expenses, including reasonable attorney's fees, directly or indirectly arising out of or alleged
to arise out of or resulting from this Agreement, the License or any use of the Camera Site
by Licensee, its agents, employees, contractors or invitees or the acts or omissions of
Licensee or any of its agents, employees or contractors. The obligations of City under this
Section 14 shall survive the termination of this Agreement with respect to any claims or
liability arising prior to such termination.
15. Licensor's Rules and Regulations. Licensor or Site Manager, on Licensor's behalf, shall
have the power, from time to time, to promulgate by written notice to Licensee all
reasonably necessary or appropriate rules or regulations governing the operation of the
CCTV Camera and related equipment, access to the Camera Site, transportation ofCCTV
Camera and related equipment into and out of the Building, and other matters, to insure
the safe and orderly operation of the Building, and Licensee covenants and agrees to
comply with all such rules and regulations.
16. Default. Licensor has entered into this License upon the condition that Licensee shall
punctually and faithfully perform all of Licensee's covenants, conditions and agreements.
Therefore, the failure of Licensee to observe or perform any covenant, term or condition
set forth in this License within twenty (20) days after written notice of such failure is
delivered to Licensee shall be deemed an "Event of Default" hereunder. Upon the
occurrence of any such Event of Default, Licensor shall have the option to pursue any
one or more of the following remedies without any notice or demand whatsoever:
b)
I 17.
a) If the Event of Default pertains to work to be performed by Licensee, perform
such work, or cause such work to be performed, for the account of Licensee,
without waiving such Event of Default, and without liability to Licensee for any
loss or damage which may result to Licensee's equipment or business by reason
of such work, and Licensee, on demand, shall pay to Licensor, the cost of such
work plus ten percent (10%) thereof as administrative costs; or
Terminate this License by notice to Licensee, and upon such notice, Licensee's entry,
use, access and license rights (but not its obligations) under this License shall terminate
And the Licensee shall immediately remove the CCTV Camera and vacate the Building
subject to its obligation to repair and restore the Camera Site as required by this
Agreement.
Limitation of Liabilitv. No owner, general or limited partner, member, principal, officer,
director, employee, agent or shareholder of Licensor shall be personally liable for the
performance of Licensor's obligations under this Agreement. The liability of Licensor for
any of Licensor's obligations under this Agreement shall be limited to Licensor's interest in
the Building where the Camera Site is located, and Licensee shall not look to any of
EXHIBIT"E"
6-
Licensor's other assets for enforcement or satisfaction against any owner, general or limited
partner, member, principal, officer, director, employee, agent or shareholder of Licensor.
18. Partial Invalidity. If any term or provision of this Agreement, or the application thereof
to any person or circumstance, shall to any extent be invalid or unenforceable, as finally
determined by a court of competent jurisdiction, the remainder of this Agreement 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 Agreement shall be valid and enforced to the fullest extent permitted by
law.
19. Attorneys' Fees. If Licensee fails to perform any of the terms, covenants, agreements or
conditions contained in this Agreement and Licensor places the enforcement of this
Agreement, or any part thereof, or the collection of any sums due or to become due
hereunder in the hands of any attorney, or files suit upon same, Licensee agrees to pay all
reasonable costs associated with the same, including Licensor's reasonable attorney's
fees.
20. Non-Waiver. Failure of Licensor to insist upon strict performance of any of
the conditions, covenants, terms or provisions of this Agreement or to exercise any of
its rights hereunder shall not waive such rights, but Licensor shall have the right to
enforce such rights at any time and take such action as might be lawful or authorized
hereunder,either in law or in equity. The receipt of any sum paid by Licensee to Licensor after
a breach of this Agreement shall not be deemed a waiver of such breach unless
expressly set forth in writing by
Licensor.21. Alteration. This Agreement may not be altered, changed, or amended, except by
an instrument in writing signed by both parties
hereto.22. Subordination to Mortgage and Ground Lease. Licensee accepts this License subordinate
to any ground lease, mortgage, deed of trust or other lien ("Interest") presently existing
or hereafter arising upon the Camera Site, or upon the Building and to any
renewals,modifications, consolidations, refinancing, and extensions thereof, but Licensee agrees
that any such Interest holder shall have the right at any time to subordinate such Interest to
this License on such terms and subject to such conditions as such Interest holder may
deem appropriate in its discretion. Licensee agrees upon demand to execute such
further instruments subordinating this License or attorning to the holder of any such Interest
as Licensor may request. Licensee agrees that it will from time to time upon request
by Licensor execute and deliver to such Interest holders as Licensor shall request a statement
in recordable form certifying that this Agreement is unmodified and in full force and effect (
or if there have been modifications, that the same is in full force and effect as so
modified),stating the dates to which charges payable under this Agreement have paid, stating
that neither Licensor nor Licensee is in breach hereunder (or if Licensee alleges a breach,
stating the nature of such alleged breach) and further stating such other matters as Licensor
shall reasonably
require.EXHIBIT"
E"
23.
I
Mechanic's Liens. Licensee will not permit any mechanic's liens or other liens to be placedupontheBuildingandnothinginthisAgreementshallbedeemedorconstruedinanywayasconstitutingtheconsentorrequestofLicensor, express or implied, by inference orotherwise, to any person for the performance of any labor or the furnishing of any materialstotheBuilding, or any part thereof, nor as giving Licensee any right, power, or authority to
contract for or permit the rendering of any services or the furnishing of any materials thatwouldgiverisetoanymechanic's or other liens against the Building, except as otherwise
expressly provided herein. In the event any such lien is attached to the Building by reasonofLicensee's acts or omissions or because of a claim against Licensee, Licensee shall cause
same to be canceled or discharged of record by bond or otherwise within ten (10) days afterwrittennoticebyLicensor. If Licensee fails to cancel or discharge said lien or liens withinsaidten (10) day period, then, in addition to any other right or remedy of Licensor, Licensor
may, but shall not be obligated to, discharge the same. Any amount paid by Licensor for
any of the aforesaid purposes shall be paid by Licensee to Licensor on demand.
24. Miscellaneous.
I
a) This Agreement shall be binding upon and inure to the benefit of the successorsandassignsofLicensor, and shall be binding upon and inure to the benefit ofLicensee, its successors, and, to the extent assignment may be approved byLicensorhereunder, Licensee's assigns. The pronouns of any gender shallincludetheothergenders, and either the singular or the plural shall include theother.
b) All rights and remedies of Licensor under this License shall be cumulative and
none shall exclude any other rights or remedies allowed by law; and this LicenseandallofthetermsthereofshallbeconstruedaccordingtothelawsoftheStateofCalifornia.
c) This Agreement embodies the entire agreement between the parties hereto withrelationtothetransactioncontemplatedhereby, and there have been and are no
covenants, agreements, representations, warranties or restriction between thepartiesheretowithregardtheretootherthanthosespecificallysetforthherein.This Agreement shall not be amended or changed except by written instrument,signed by Licensor and Licensee.
Signature Page Follows]
EXHIBIT"E"
8-
IN WITNESS WHEREOF, the parties hereto have executed this License Agreement as of
the date aforesaid.
LICENSOR:
Mark A. Murphy, Mayor
ATTEST:
Mary E. Murphy, City Clerk
APPROVED AS TO FORM:
David A. DeBerry, City Attorney
By:
Theodore J. Reynolds
Assistant City Attorney
LICENSOR:
CA-THE CITY LIMITED PARTNERSHIP, a
Delaware limited
partnership By: EOM GP, L.L.C., a Delaware limited
liability company, its general
partner By: Equity Office Management, L.L.C.,
a Delaware limited liability company, its
non-member
manager
By:
Name:
Title:EXHIBIT"
E"
EXHIBIT "A"
CAMERA SITE LOCATION
I
Behind this sheet.]
I
EXHIBIT"E"
10-