HomeMy WebLinkAboutORD-4-04 Approve Development Agreement with Orange City Mills LmtdORDINANCE NO. 4-
04 AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF ORANGE APPROVING
A DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF ORANGE AND ORANGE
CITY MILLS LIMITED PARTNERSHIP, A
DELAWARE LIMITED PARTNERSHIP, FOR APPROVAL
OF THE PHASED EXPANSION OF THE BLOCK
AT ORANGE ON PROPERTY GENERALLY
LOCATED WEST OF THE CITY DRIVE BETWEEN
CHAPMAN AVENUE AND METROPOLITAN
DRIVE.APPLICANT: ORANGE CITY MILLS
LIMITED
PARTNERSHIP WHEREAS, Section 65864 et seq. of the California Govermnent 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 adopted Chapter17.44 of
the Orange Municipal Code which establishes procedures for the processing and approval
of development
agreements.NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
ORANGE DOES ORDAIN AS
FOLLOWS:SECTION
I:The City Council finds that a public hearing has been held before this City
Council pursuant to the procedures described in Chapter17.44 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 Orange City Mills Limited Partnership ("Development
Agreement").SECTION
11:The City Council hereby finds that the Development Agreement between the City
of Orange and the Orange City Mills Limited
Partnership:A. Is consistent with the objectives, policies, general land uses, and
programs specified in the General Plan and the Redevelopment Plan;
and B. Is compatible with the uses authorized in, and the regulations prescribed for,
the zoning district in which the real property is and will be located;
and
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
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 ofrequisite certainty.
SECTION 1l1:
The City Council hereby approves the Development Agreement in the form attached
hereto and incorporates the Agreement herein by this reference. Within ten (10) days after this
Ordinance takes effect, the City Council shall execute the Development Agreement
SECTION IV:
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 this
Agreement.
SECTION V:
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 Government Code Section 36933. This Ordinance shall take effect thirty (30)
days from and after the date of its final passage.
ADOPTED this 24th day of February, 2004.
tJtll~ M
Mark A. Murphy, Mayor, Ci
2
ATTEST:
5
Mary E. M~ty Clerk, It
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 10th day of February, 2004, and thereafter at the regular meeting of said City Council duly
held on the 24th day of February, 2004, was duly passed and adopted by the following vote, to
wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
COUNCILMEMBERS: Ambriz, Alvarez, Murphy, Coontz, Cavecche
COUNCILMEMBERS: None
COUNCILMEMBERS: None
COUNCILMEMBERS: None
MaryE.City Clerk, 1 Orange
3
1~/! - YjC~ .3 C,
j EXEMPT
FROM RECORDER'S FEES Pursuant
to Government Code ~~ 6103 and 27383 Recorded
in Official Records, Orange County Tom
Daly, Clerk-Recorder
111111111111111111111111111111111111111111111111111111111111111111111111111 NO FEE
2004000610769 03:31pm 07/06/04
211 128 A12 37
0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Recording requested by and when recorded return to,
City Clerk
City of Orange
300 East Chapman Avenue
Orange, CA 92866
SPACE ABOVE FOR RECORDER'S USE)
DEVELOPMENT AGREEMENT
The Block at Orange Expansion)
BY AND BETWEEN
CITY OF ORANGE,
a California municipal corporatiou,
and
ORANGE CITY MILLS LIMITED PARTNERSHIP,
a Delaware Limited Partnership
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE 965868.5
y
V
7rJV
TABLE OF CONTENTS
Pal!:e
I. Recitals ........ ......., ..... ......... ............... ..... ........ ..... ..... ...................... ....... ......... ......................1
2. Definitions ................................................. ......... ........ ..... .......... ........................... ...............4
3. Binding Effect................ ...................... ........... ......... ........... ............. ............ .................. ......
5
4. Negation of Agency ............................................................................................................5
5. Development Standards for the Project Site; Applicable Rules .........................................6
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 .........................10
9. Cooperation and Implementation ......................................................................................12
10. Compliance; Termination; Modifications And Amendments ...........................................14
II. Operating Memoranda ......................................................................................................16
12. Term of Agreement ...........................................................................................................16
13. Administration of Agreement and Resolution of Disputes ...............................................16
14. Transfers and Assignments ...............................................................................................19
15. Mortgage Protection ..........................................................................................................19
16.
Notices......................... ......... ..... .... ...................... ..... ....................................... .................
20
17. Severability and Termination ............................................................................................21
18. Time of Essence ................................................................................................................22.
19. Force Majeure ... ....... ..................... ................... ........................... ................. ... ..................22
20. Waiver ......... ... ..... ....... ... ... .... .... ....... ....... ............ ...... ................... ......................................22
21. No Third Party Beneficiaries ............................................................................................22
22. Attorneys . Fees .... ..... ... ............ .... ... ...... ... ............... ........ ...... .......... .......... ......... .......... .....22
23. incorporation of Exhibits ........ .............. ...... .............. ..... ....... ............ ........ ........................22
24. Copies of Applicable Rules ..............................................................................................23
25. Authority to Execute; Binding Effect ...............................................................................23
26. Entire Agreement; Conflicts ..............................................................................................23
27. Developer's Commitment Regarding California Sales/Use Taxes....................................23
28. Remedies.. ............. .............. ...................... ...... ......... ........... ........... ..... ......... ..... ... ........ ......24
Exhibits
Page on Which
First Referenced
Exhibit A
Exhibit B
ExhibitC
Legal Descriptions of Project Site ...................................................1
Site
Plans.................... ....... ......... ........ ...... ..... ......... ...................... ....
1
Design Security Features .................................................................9
I-
DEVELOPMENT AGREEMENT
The Block at Orange Expansion)
This Development Agreement (The Block at Orange Expansion) (the "Agreement") is
made in Orange County, California as of , 2004, by and between the City of
Orange, a municipal corporation (the "City"), and Orange City Mills Limited Partnership, a
Delaware Limited Partnership and its affiliates (collectively, "Developer"). Together, the City
and the Developer shall be referred to as the "Parties."
1. 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 SS65864 through
65869.5 (the "Development Agreement Statutes") and Chapter 17.44 (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 such property
in order to establish certainty in the development process.
b) There is located within the City an 85.67-acre site developed as The
Block at Orange (the "Project Site"), containing 889,198 square feet of commercial and
retail development, restaurants, a 30-screen movie theater, and a skate park. The Project Site
is legally defined in Exhibit A,
attached hereto.c) Developer seeks to enhance the vitality of The Block at Orange as
a high quality commercial, retail and entertainment development by transforming the Project Site
into a mixed-use development through the addition of multi-family
housing, hotels,
and additional retail space.d) The plan of future development of the Project Site is
depicted on the Site Plans attached hereto as Exhibit B (the "Project"). The Site
Plans reflect certain specific improvements that are further described and defined
in the Site Plans.e}Pursuant to Government Code S65867.5
and OrangeMunicipal Code Section 17.44.100, the City Council finds that: (i) this Agreement and
any Future Approvals of the Project implement the goals and policies of the City's General
Plan, provide balanced and diversified land uses and impose appropriate standards and requirements
with respect to land development and usage in order to maintain the overall quality of
life and the environment within the City; (ii) this Agreement is in the best interests of and not in
detriment to the public health, safety and general welfare of the residents of the City and
the surrounding region; (iii)this Agreement is compatible with the uses authorized in the zoning district
and planning area in which the Project Site is located; (iv) adopting this Agreement is consistent
with the City'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 the requirements
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 Block at Orange is and, at the
completion of the Project, will continue to be, a benefit and resource to the community;
2) The Project will provide an expanded economic base for the City
by generating substantial property and sales tax revenue, as well as additional hotel bed taxes. It
is estimated that gross sales tax and hotel bed tax revenue will exceed $1 million annually;
3) The Project will provide housing options for those who wish to
live within walking distance of commercial and retail establishments including offices, retail,
dining, and entertainment, and in so doing will reduce the amount and length of vehicle trips
made in the region, thereby reducing area air emissions as well as noise and traffic impacts;
4) The Project will enhance the vitality of The Block at Orange as a
high-quality commercial, retail, and entertainment development consisting of a diversity
of pedestrian-oriented uses, and provide for the evolution of The Block at Orange
from an exclusively retail- and entertainment-oriented center to a mixed-
use development consisting of residences and hotels that will further the site as a vital
destination in the City;5) The Project will attract additional shoppers
and tenants to The Block at Orange by providing additional quality retail development,
thereby enhancing one of the premier entertainment and retail centers in the County and
reinforcing the prominence ofthe
City in the area;6) The Project will provide construction
employment for a substantial number of workers, and will provide for approximately 400
permanent positions
required for Project operation;7) The Project will provide for additional sales/use
taxes to the City,as
provided in Section-27 hereof;8) The Project will contribute $1,050,
000 in traffic impact mitigation fees to the City pursuant to the West Orange Circulation Study,
which will partially fund the completion of traffic and circulation infrastructure in the
West Orange Circulation Study area that will be needed to
accommodate demand from future growth;9) The Project will provide high
quality on-site recreational and open space amenities for Project residents, including 75,
000 square feet of common outdoor recreational areas, including a swimming pool and playground, and
6,000 square feet of common indoor recreational amenities, including
clubhouse
will enhance on-site recreational opportunities for residents, and in so doing, reduce demand
by project residents for public parks and recreational facilities;
and 10) The Developer has implemented, and will continue to discuss
the implementation of possible measures to enhance public protection and safety, including but
not limited to increased pay and training for security officers, enforcement of curfew restrictions
and curfew sweeps, and targeted security prevention, including improved camera
surveillance systems, the concepts of Crime Prevention Through Enviromnental Design (CPTED)
and response to juvenile disturbances. Recent measures implemented by the Developer have
reduced City Police Department expenditures for law enforcement at the Project Site, which are
now within year 2003 budgeted parameters for
staffing.In exchange for these substantial public benefits, City intends to give
Developer assurance that Developer can proceed with the development of the Project and the Project
Site 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 enviromnent that will conform to
and compliment the goals of the City, create a development project sensitive to hwnan needs
and values and facilitate efficient
traffic
circulation..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 Wlder 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 Site, except as provided for
herein.i) In accordance with the Development Agreement Statutes, this
Agreement eliminates Wlcertainty in the planning process and provides for the orderly improvement of
the Project Site. Further, this Agreement provides for appropriate further development of the
Project Site over and above the improvements that currently exist on the Project Site and
generally serves the public interest within the City and the surroWlding
region.j). The following actions were taken with respect to the approval of
this Agreement and the
Project:I) An enviromnental review has been conducted and
the Enviromnental Impact Report for the Block at Orange Expansion (the "Final EIR")was
certified for the Project by the City Council on January 13, 2004 in accordance with the
California Enviromnental Quality
Act.2) On December 15, 2003 the Planning Commission of the City
of Orange held a duly noticed public hearing on the Developer's application for a
Development
Agreement and by Resolution No. 54-03 recommended to the City Council of the City ofOrangeapprovalofthis
Agreement.
3)approved the
following:On February 10, 2004, the City Council of the City of
Orange Mixed Use Residential and Commercial Development - Conditional Use Permit No. 2461-
03 and Major Site Plan Review
293-03;Hotel A - Conditional Use Permit No.
2462-03;Hotel B - Conditional Use Permit No.
2463-03 Major Site Plan Review No. 300-03 for 1,21
I-space parking structure 4) On February 10, 2004, the City Council of the
City of Orange held a duly noticed public hearing and approved Developer's
application for a Development Agreement and on February 24, 2004, the CityCouncil adopted
Ordinance No.
4-04 approving this Agreement.k) The Developer represents to the City that, as of the
Effective Date, it is the owner of the Project Site, which is subject to: (i) that
certain Parking Area Lease Agreement dated as of December 23, 1997 by and between the Mills
Limited Partnership as the Landlord,and the City as Tenant, a Memorandum of which was recorded in
the Official Records of the County of Orange on January 7,2004 as Instrument
No. 2004000012366; (ii) that certain Parking Area Sublease dated as of December 23, 1997 by and
between the City as the Sub landlord, and the Mills Limited Partnership as Subtenant,
a Memorandum of which was recorded in the Official Records of the County of Orange on January
7,2004 as Instrument No.2004000012367; and (iii) encumbrances,
easements, covenants, conditions, restrictions, and other matters of record, including, but not limited to,
that certain Restrictive Covenant and Declaration of Covenants, Conditions, Restrictions and Easements, dated
as of March 31,1997 and executed by the Mills Limited Partnership, as the Declarant, in favor
of the City and the Orange Redevelopment Agency, a public body, corporate and
politic (collectively, and as they may be subsequently
amended, the "Matters of Record").
2. Definitions. In this Agreement:a) "Applicable Rules" means the
development standards and restrictions set forth in Section 5 of this Agreement that shall govern the use and
development of the Project Site and shall amend and supersede any conflicting or
inconsistent provisions of zoning ordinances,regulations or other City requirements relating to development
of
to 65869.5.
b) "Development Agreement Statutes" means Government Code ~~ 65864
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
employee of the City, to determine whether there has been compliance with applicable statutes,
ordinances, regulations, or conditions of approval.
d) "Effective Date" is the date the ordinance approving this Agreement
becomes effective.
e) "Future Approvals" means any action in implementation of development
of the Project Site (as generally described in the Final EIR) which requires Discretionary
Approvals and/or Ministerial Approvals pursuant to the Applicable Rules. Discretionary
Approvals include, 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 ofthe 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) "Ministerial Approvals" could include, 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 Site.
g) 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 Municipal
Code.
3. Bindinl! 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 Site for the benefit thereof, and the benefits and burdens of this
Agreement shall be binding upon and inure to the benefit ofthe Parties and their respective
assigns, heirs, or other successors in interest.
4. Nel!ation of Al!encv. 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
5
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 Site: Applicable Rules. The
development standards and restrictions set forth in this Section shall govern the use and
development of the Project Site 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 Site and any subsequent changes to the Applicable Rules as specifically described in
Section 5(b)
a) The following ordinances and regulations shall be part of the Applicable
Rules:
I) The City's General Plan as it exists on the Effective Date;
2) The City's Municipal Code relating to Development Agreements
which is set forth in Chapter 17.44 of the Orange Municipal Code, as it exists on the Effective
Date;
3) The City's Building Security Standards (Orange Municipal Code
Chapter 15.52);
4) Such other ordinances, rules, regulations, and official policies
governing permitted uses of the Project Site, density, design, improvement, and construction
standards and specifications applicable to the development of the Project Site in force on the
Effective Date, including the Municipal Code, except as they may be in conflict with the
provision of subsection (a(5)) of this Section; and
5) The terms, provisions and conditions of the following, as of the
Effective Date:
Mixed Use Residential and Commercial Development - Conditional Use Permit No.2461-
03 and Major Site Plan Review 297-
03,Hotel A - Conditional Use Permit No. 2462-
03;Hotel B - Conditional Use Permit No. 2463-
03;Major Site Plan Review No. 300-
03; and Any Future Approvals approved after the
Effective
b) Notwithstanding the provisions of this Agreement, the City reserves therighttoapplycertainotherlaws, ordinances and regulations under the certain limited
circumstances described below:
I) This Agreement shall not prevent the City from applying newordinances, rules, regulations and policies relating to uniform codes adopted by City or by theStateofCalifornia, such as the Uniform Building Code, National Electrical Code, UniformMechanicalCodeorUniformFireCode, as amended, and the application of such uniform codes
to the Project Site at the time of application for issuance of building permits for structures on the
Project Site including such amendments to these 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 compliance with one or more of the provisions of this Agreement, such provisions ofthisAgreementshallbemodifiedorsuspendedasmaybenecessarytocomplywithsuchState 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 entorce.
Notwithstanding the foregoing, City shall not adopt or undertake any regulation, program or
action or take any action which is inconsistent or in conflict with this Agreement until, followingmeetingsanddiscussionswiththeDeveloper, the City Council makes a finding, at or following a .noticed public hearing, that such regulation, program actions or inaction is required (as opposedtopermitted) to comply with such State and Federal laws or regulations after taking into
consideration all reasonable alternatives.
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 Site, or any portion thereof or any lands
adjacent thereto.
6. Rieht to Develop. Subject to the terms of this Agreement, and as of the Effective
Date, Developer shall have a vested right to develop the Project Site in accordance with the
Applicable Rules
7
7. Acknowledl!:ments. Al!: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 on the Project Site 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 as referenced in Section I (t) hereof 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) Oblil!: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) TrafficMitil!:ation Fees. The Developer shall pay traffic
improvement mitigation fees pursuant to the West Orange Circulation Study ("WOCS Fees"), in the
total amount of$I,050,000. Such woes Fees shall be paid to the City in three separate stages,
with the amount based upon the percentage of trip generation for each stage identified in the
Final ElR as
follows:Residential Uses (30%) = $315,
000 Hotel Uses (22%) = $231,
000 Retail Uses (48%) = $504,
000 Developer shall also pay Transportation Systems Improvement Program fees ("TSIP
Fees")pursuant to Chapter15.41 of the Municipal Code and City Council Resolution 9428.
Currently,TSIP Fees are $642.00 per residential unit, $642.00 per hotel room, and $4.20 per square foot
of non-replacement commercial/
retail space.Payment of each stage of WOCS Fees, in the amounts identified in this Section,
shall be submitted by Developer prior to the issuance of the first building permit by the City
for that stage. Payment ofTSlP Fees shall be submitted prior to the issuance of building permits
for
new construction.d) Access
and Dedication I) In order to restore access to the Project Site,
Developer shall provide for the public dedication of the Fourth Leg (north side) of the
intersection of Metropolitan Drive with the relocated on and off ramps to the State Route 22
Freeway. The Fourth Leg is to provide a through route to another publicly
dedicated
2) The setback line for future development on the Project Site shall be
measured from the north line of the future Metropolitan Drive alignment as determined by the
California Department of Transportation (Caltrans) alignment of the widened SR-22
Freeway.3) Developer shall dedicate additional right-of-way
along the north side of Metropolitan Drive between City Drive and the future State Route 22
westbound on and off ramps sufficient to provide an additional westbound lane on Metropolitan
Drive, if the additional westbound lane is determined to be necessary by the City based
upon the traffic operations study for the Fourth Leg. Width of dedication ofthe additional
westbound lane shall take into account the location of the north right of way line for Metropolitan
Drive based upon the additional State Route 22 Freeway lanes and widths required by Caltrans as part
of the main line State Route 22
Freeway widening project.e) Security Measures. To enhance security and reduce the
impact to the City's Police Department, Developer shall
do the following:I) Within 30 days of the Effective Date the Developer
shall meet with the City to discuss ways to enhance the lighting in the existing parking lots on
the Project Site.The Orange Municipal Code's (Chapter 15.52) illumination standards require
I foot candle minimum maintained at ground during business hours and recent City lighting
tests indicate the lighting is below standard in some parking lot areas. The Developer
shall implement reasonable measures to enhance the lighting and in any event, all parking lots open for public
use shall meet these illumination standards within five years of
the Effective Date.2) The Developer shall (i) meet with the City to
discuss the feasibility and cost effectiveness of the installation of additional cameras in the parking lots at
The Block at Orange; and (ii) deploy private security personnel that meets industry
standards for similar venues in the Orange County and Los Angeles areas, as agreed upon between
the Developer and
the Police Department.3) Prior to the construction or approval of construction
of any new development approved by the City Council actions listed in paragraph 5(a)(
5) above, the Developer shall meet with the City's Police Department to discuss
the implementation of security design features into such new development of the Project as set forth
in the attached Exhibit C, entitled Design Security Features. Developer may agree, but shall not
be required by this paragraph, to implement new or additional Design Security Features on
development on the Project Site existing as of
the Effective Date.4) The City and Developer shall meet to review security
at the Project Site for the purpose of evaluating demand on City police services, as well as
the effectiveness of Developer's security measures upon the request of either Party. To the
extent appropriate and reasonable in light of the intent of this paragraph, the City may
require additional Design Security Features, appropriate modifications to security staffing levels and/
or the implementation of other security measures identified in Recital I (f)(l0) should any of
the
i) demands for City police services at the Project Site increase beyond the
existing staffing level of one sergeant, one corporal and six officers;
ii) net sales tax revenues to the City from the Project Site fall below
800,000 annually in the absence of a concurrent and comparable reduction in demand for police
services. If either (a) legislation, whether adopted prior to or following the Effective Date,
reduces the percentage of sales tax or property tax revenue the City receives from the Project Site
from one percent of retail sales at the Project Site subject to the Uniform Local Sales and Use
Tax Law, Revenue and Taxation Code g7200 et. seq.), or (b) following the occurrence of an
Event of Force Majeure as defined in Section 19, the Parties shall meet and discuss the impact of
such legislation or Event of Force Majeure and whether adjustments to the net sales tax revenues
threshold set forth in this paragraph are appropriate to account for the legislation or the
consequences of the Event of Force Majeure; or
iii) if part one crime at the Project Site increases by 10% above the annual
average number of part one crimes reported at The Project Site over the three calendar years
immediately prior to the Effective Date.
The intent of this paragraph is to ensure that the cost to the City for providing police services to
the Project Site does not substantially minimize or reduce the benefits of the Project, one such
benefit being the generation of tax revenue to the City and the Orange Redevelopment Agency.
This paragraph is not intended to obviate the need for continued coordination and cooperation
between the Developer and the City in providing security to the Project Site. Future discussions
between the Parties concerning the provision of security to the Project Site shall be mindful of
the intent of this paragraph and other tax revenues generated by the Project Site, including but
not limited to transient occupancy taxes, along with any other factors the Parties believe are
relevant, shall be considered in determining what future security measures can enhance the
public's safety.
8. Acknowledements. Aereements and Assurances on the Part of the City. In
order to effectuate the provisions ofthis 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 permitted to
carry out and complete the development of the Project and development on the Project Site in
accordance with the Applicable Rules, subject to the terms 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 on the Project Site to the extent and in the manner provided in this
Agreement, subject to the Applicable Rules and the Future Approvals.
b) Conflictine Enactments. Any change in the Applicable Rules, including,
without limitation, any change in any applicable general area or specific plan, zoning,
10
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 Site
and which would conflict in any way with or be more restrictive than the Applicable Rules
Subsequent Rules"), shaH not be applied by City to any part of the Project Site. Developer may
give City written notice of its election to have any Subsequent Rule applied to such portion of
the Project Site as it may own, in which case such Subsequent Rule shaH be deemed to be an
Applicable Rule insofar as that portion of the Project Site is concerned.
c) Permitted Conditions. Provided Developer's applications for any Future
Approvals are consistent with this Agreement and the Applicable Rules, City shaH grant the
Future Approvals in accordance with the Applicable Rules and authorize development of the
Project Site 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 the
Project Site; provided, however, that such conditions and dedications shaH not be inconsistent
with the Applicable Rules in effect prior to imposition of the new requirement nor inconsistent
with the development of the Project as contemplated by this Agreement; and provided further
that such conditions and dedication shaH not impose additional infrastructure or public
improvement obligations in excess of those identified in this Agreement or normaHy imposed by
the City. In connection with a Future Approval, Developer may protest any conditions,
dedications or fees to the City Councilor as otherwise provided by City rules or regulations
while continuing to develop the Project Site; such a protest by Developer shaH not delay or stop
the issuance of building permits or certificates of occupancy unless otherwise provided in the
Applicable Rules.
d) Timin!! of Development. Because the California Supreme Court held in
Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984) that the failure of the parties
to provide for the timing of development aHowed a later adopted initiative that restricted the
timing of development to prevail over the parties' agreement, it is the intent of Developer and the
City to cure that deficiency by acknowledging and providing that Developer shaH have the right
without the obligation) to develop the Project Site 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 terms 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 aH or any part
of the Project Site 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,
or portions of City, shall apply to the Project Site to the extent such moratorium or other
limitation is in conflict with this Agreement and/or the Applicable Rules.
f) Permitted Fees and Exactions. Except as otherwise provided in this
Agreement, City shall only charge and impose those fees and exactions, including, without
limitation, dedications and any other fees or taxes (including excise, construction or any other
taxes) relating to development or the privilege of developing the Project Site 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:
1) Charge any existing or subsequently adopted application,
processing, and permit fees for land use approvals, building permits, development impact
including, but not limited to, TSlP Fees, park facility fees, library facility fees, police facility
fees and fire facility fees); provided, however, that said application, processing, development
impact and permitting fees shall not exceed the fees that are charged by the City generally to all
other applicants similarly situated, on a non-discriminatory basis for similar approvals,
permits,or entitlements granted by
City;2) 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 Site or to businesses occupying the Project Site; provided, however,
that the tax is of general applicability citywide and does not burden the Project
Site disproportionately to other development within the City;
or 3) 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.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, actioflsand 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 on the Project Site 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 Sil!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 ofthose
reasonably necessary to mitigate the impacts of the Project or development on the Project Site.
c) Processinl!. 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;
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
d) Processinl! Durinl! Third Party Litil!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 Site 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 Al!reement. City agrees to and shall timely take all actions
that are necessary or required to uphold the validity and enforceability of this Agreement and the
Applicable Rules, subject to the indemnification provisions ofthis 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, annul, 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
13
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 postthe required deposit within five (5) working days from notice by City,
City may terminate this Agreement pursuant to its terms in accordance with Section lO(d) of this
Agreement. 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 Site. 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. Compliance: Termination: Modifications and Amendments.
a) Review of Compliance. The City's Director of Community Development
shall review this Development Agreement once each year, on or before each anniversary of the
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 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 any one 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
ifit 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
have been taken by the Director or what steps the Director recommends that the Citysubsequentlytakewithreferencetotheallegednon-compliance. (If the Director determinesthattheDeveloperhasdemonstratedreasonableprimafaciecompliancewiththisAgreement, the Director will not be required to submit a report to the City Council.) Non-performancebyeitherPartyshallbeexcusedwhenitisdelayedunavoidablyandbeyondthereasonablecontrolofthePartiesasaresultofanyoftheeventsidentifiedinSection19of
this Agreement.d) Termination of Development Al!reement as to Breachinl! Party. If Developer fails to timely cure any item(s) of non-compliance set forth in aNoticeofNon-compliance, then the City shall have the right, but not the obligation, toinitiateproceedingsforthepurposeofterminatingthisAgreement. Such proceedings shall be initiated bynoticetotheDeveloper, followed by meetings between the Developer and the City for thepurposeofgoodfaithnegotiationsbetweenthePartiestoresolvethedispute. If the CitydeterminestoterminatethisAgreementfollowingareasonablenumberofmeetingsandareasonableopportunityfortheDevelopertocureanynon-performance, the City shall give Developer writtennoticeofitsintenttosoterminatethisAgreement, specifying the precise grounds for terminationandsettingadate,time and place for a public hearing on the issue, all incompliancewiththeDevelopmentAgreementStatute. At the noticedpublic hearing, Developer and/or its designated representative shall be given an opportunity to make a full and public presentation to theCity. If, following the taking of evidence and hearing of testimony at said public hearing, the City
finds, 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 aspecific, substantive term or provision of this Agreement, then the City may (unless the Partiesotherwiseagreein
writing)terminate this Agreement.e) Notice and Opportunitv to Cure if City Breaches.
If at any time Developer reasonably concludes that (i) 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 beenbreached) 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 partoftheCity. City shall have thirty 30) calendar days following its receipt of the NoticeofNon-compliance in which to cure said failure(s); provided, however, that if any one ormoreoftheitem(s) of non-compliance set forth in the Notice of Non-compliancecannotreasonablybecuredwithinsaidthirty (30) calendar day period, then City shall not be in breach
of this Agreement ifit commences to cure said item(s)within said thirty (
30) day period anddiligentlyprosecutes said cure to completion.
I) Modification or Amendment.. of Development Al!reement. 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
11. Operatinl! Memoranda. The provisions of this Agreement require a close degree
of cooperation between City and Developer. The anticipated refinements to the Project and other
development activity at the Project Site 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 approved in writing by the City and Developer
which, after execution, shall be attached hereto and become a part of this Agreement, and the
same may be further clarified from time to time as necessary with future written approval by City
and Developer. 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, upon consultation with and approval of
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 10(f) 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.12. Term of Al!reement. This Agreement shall become operative and
shall commence upon the Effective Date. This Agreement shall remain in effect for a period of
ten 10) years from the Effective Date (the "Term") unless this Agreement is terminated, modified
or extended upon mutual written consent of the Parties hereto or as otherwise provided in
this Agreement. Following expiration or termination ofthe 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 Site 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!reement 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 hereof) 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 that remains in dispute shall be appealed to, heard by, and resolved pursuant to
the Mandatory Alternative Dispute Resolution procedures set forth in Section13(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
Non-Compliance. 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 isnecessaryonamoreimmediatebasis.
b) Mandatory Alternative Dispute Resolution. After the provisions ofSection13(a) above have been complied with, and pursuant to Code of Civil Procedure g638, etseq., all disputes regarding the enforcement, interpretation or administration of this Agreementincluding, but not limited to, appeals from decisions of the City Council, all matters involvingCodeofCivilProcedureg1094.5, all Ministerial Approvals, Discretionary Approvals, FutureApprovalsandtheapplicationofApplicableRules) shall be heard and resolved pursuant to thealternativedisputeresolutionproceduresetforthinthisSection13(b). All matters to be heardandresolvedpursuanttothisSection13(b) shall be heard and resolved by a single appointedrefereewhoshallbearetiredjudgefromeithertheCaliforniaSuperiorCourt, the CaliforniaCourtofAppeals, the California Supreme Court, the United States District Court or the UnitedStatesCourtofAppeals, provided that the appointed referee shall have significant and recentexperienceinresolvinglanduseandrealpropertydisputes. The Parties to this Agreement whoareinvolvedinthedisputeshallagreeandappointasinglerefereewhoshallthentryallissues,whether of fact or law, and report in writing to the Parties to such dispute all findings of fact andissuesanddecisionsoflawandthefinaljudgmentsmadethereon, in sufficient detail to informeachPartyastothebasisofthereferee'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 othelWise limitedbyanytermorprovisionofthisAgreement) have all legal and equitable powers granted aCaliforniaSuperiorCourtjudge. Prior to the hearing, the Parties shall have full discovery rightsasprovidedbytheCaliforniaCodeofCivilProcedure. At the hearing, the Parties shall have therighttopresentevidence, examine and cross-examine lay and expert witnesses, submit briefsandhaveargumentsofcounselheard, all in accordance with a briefing and hearing
schedule reasonably established by the referee. The referee shall be required to follow and adhere toalllaws, rules and regulations of the State of California in the hearing of testimony, admissionofevidence, conduct of discovery, issuance of a judgment and fashioning of remedy, subjecttosuchrestrictiononremediesassetforthinthisAgreement. If the Parties involved in thedisputeareunabletoagreeonareferee, 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 OrangeCountypursuanttoCaliforniaCodeofCivilProcedureg640. The cost of any proceeding heldpursuanttothisSectionl3(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 SectionshallbeconsideredatemporaryjudgeappointedpursuanttoArticle6, Section 21 of theConstitutionoftheStateofCalifornia. The cost of the referee shall be borne equally by eachParty,notwithstanding any language to the contrary in Section 22 of this Agreementconcerningattorneys' fees and costs. If any Party to the dispute fails to timely pay its fees or costs, or fails
to cooperate in the administration of the hearing and decision process as determined by thereferee,the referee shall, upon the written request of any Party to the dispute, be required to issueawrittennoticeofbreachtothedefaultingParty, and if the defaulting Party fails to timelyrespondorcooperatewiththeperiodoftimesetforthinthenoticeofdefault (which in any event maynotexceedthirty (30) calendar days), then the referee shall, upon the request of anynon-defaulting arty, render a default judgment against the defaulting arty. At the end of the hearing,
the
shall issue a written judgment (which may include an award of reasonable attorneys' fees and
costs as provided elsewhere in this Agreement), which judgment shall be final and binding
between the Parties and which may be entered as a final judgment in a California Superior Court.
The referee shall use hislher best efforts to finally resolve the dispute and issue a final judgment
within sixty (60) calendar days from the date ofhislher appointment. Pursuant to Code of Civil
Procedure Section 645, the decision of the referee may be excepted to and reviewed in like
manner as if made by the Superior Court.
1) Any party to the dispute may, in addition to any other rights or
remedies provided by this Agreement, seek to enjoin any threatened or attempted violation
hereof, or enforce by 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 non-compliance 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 Transferee of Developer for the City'
s breach or non-compliance under or with respect to this Agreement. In
addition, 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 resulting from the City's non-compliance under this Agreement.
Notwithstanding the provisions ofthis Section l3(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
14. Transfers and Assilmments.
a) Ril[ht to Assil[n. Developer shall have the right to encumber, sell, transfer
or assign all or any portion ofthe Project Site which it may own to any person (such person, a
Transferee") at any time during the term of this Agreement without approval of the City,provided that Developer has given thirty (30) days' prior written notice of the proposed transfer
to the City Manager and Developer provides City with notice of the name and address of the
Transferee within ten (10) days of the effective date of the transfer. 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 Site, 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 portionoftheProjectSitesotransferred.
b) Liabilities Upon Transfer. Upon the delegation of all duties and
obligations and the sale, transfer or assignment of all or any portion of the Project Site to a
Transferee, Developer shall be released from its obligations under this Agreement with respect to
the Project Site or portion thereof so transferred arising subsequent to the Effective Date of such
transfer if (1) 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 Site so transferred. Upon any transfer of any portion of
the Project Site 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 Site acquired by such Transferee. Any such
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 any
Transferee shall only affect that portion of the Project Site owned by such Transferee and shall
not cancel or diminish in any way Developer's rights hereunder with respect to any portion of the
Project Site not owned by such Transferee. The Transferee shall be responsible for the reporting
and annual review requirements relating to the portion of the Project Site owned by such
Transferee, and any amendment to this Agreement between City and a Transferee shall only
affect the portion of the Project Site owned by such Transferee. In the event that Developer
retains its obligations under this Agreement with respect to the portion of the Project Site
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!al!e Protection. The Parties hereto agree that this Agreement
shall not prevent or limit Developer, at Developer's sole discretion, from encumbering the Project
Site or any portion thereof or any improvement thereon in any manner whatsoever by
any mortgage,deed of trust or other security device securing financing with respect to the Project
Site.
acknowledges that the lender(s) providing such financing may require certain Agreementinterpretationsandmodificationsandagrees, upon request, from time to time, to meet with
Developer and representatives of such lender(s) to negotiate in good faith any such request forinterpretationormodification; provided, however, that no such interpretations or modificationsshalldiminishthepublicbenefitsreceivedunderthisAgreementunlesstheCityagreestothe
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 isconsistentwiththeintentandpurposesofthisAgreement. Any mortgagee of a mortgage or a
beneficiary of a deed of trust ("Mortgagee") on the Project Site shall be entitled to the followingrightsandprivileges:
a) Mortl!:al!:e Not Rendered Invalid. Neither entering into this AgreementnorabreachofthisAgreementshalldefeat, render invalid, diminish, or impair the lien of anymortgageordeedoftrustontheProjectSitemadeingoodfaithandforvalue.
b) Request for Notice to Mortl!:al!:ee. The Mortgagee of any mortgage ordeedoftrustencumberingtheProjectSite, 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 receivewrittennotificationfromCityofanynon-compliance by Developer in the performance
of Developer's obligations under this
Agreement.c) Mortl!:al!:ee's Time to Cure. If City timely receives a request from
a Mortgagee requesting a copy of any Notice of Non-Compliance 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 Non-Compliance to Developer. The Mortgagee
shall have the right, but not the obligation, to cure the non-compliance duringtheremainingcureperiodallowedDeveloperunderthisAgreement, as well as any reasonable
additional time necessary to cure, including reasonable time for reacquisition of the Project Siteor
the applicable portion thereof.d) Proiect SiteTaken Subiect to Oblil!:ations.
Any Mortgagee who comes into possession of the Project Site or any portion thereof, pursuant to
foreclosure of the mortgage or deed of trust, or deed in lieu offoreclosure, shall take the Project
Site or portion thereof subject to the terms of-this Agreement; provided, however, that innoeventshallsuchMortgageebeheldliableforanydefaultormonetaryobligationofDeveloper
arising prior to acquisition of title to the Project Site 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 Site 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 certifiedmail, postage prepaid, return receipt requested, to the following Parties and their counsel at
the
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.
If to 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, CA
92866 Facsimile: (714)
538-7157 If to Developer:
Elizabeth Link c/o The
Mills Corporation 824 St.
Louis Street Edwardsville,
IL 62025 Facsimile: (
618) 692-6295 With copies
to:General Counsel
The Mills Corporation
1300 Wilson Boulevard
Arlington, VA 22209
Facsimile: (703) 526-5336 and to-
Linda J. Bozung,
Esq.Piper Rudnick, LLP 1999 Avenue of
the Stars, 4th Floor
Los Angeles, CA
90067 Facsimile: (310) 595-3354 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. Severabilitv and Termination. rfany 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
18. Time of Essence. Time is of the essence for each provision of this Agreement of
which time is an element.
19. Force Majeure. 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, terrorist attacks,
fire,acts of God, or other circumstances which substantially interfere with the development
or construction of the Project Site or the development ofthe Project Site, 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 Term 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 were in
effect.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.
No other person shall have any right of action based upon any provision of this
Agreement.22. Attornevs' Fees. 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. Incorporation of Exhibits. The following exhibits that 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) Exhibit A, Legal Descriptions of
Project
b) Exhibit B, Site Plans
c) Exhibit C, Design Security Features
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 ifit 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: Sindin!! Effect. Developer represents and 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.
26. Entire A!!reement: Conflicts. This Agreement represents the entire agreement of
the Parties. 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, or Subsequent Applicable Rules, then the provisions
of this Agreement shall prevail. Notwithstanding anything herein to the contrary, in the event of
a conflict between the provisions of the Matters of Record and this Agreement, the Matters of
Record shall govern and control.
27. Developer's Commitment Re!!ardin!! California SalesfUse Taxes.
a) 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 the Project Site and allocate all eligible
use tax payments to the City. Developer will further require in its general contractor
construction contract that prior to beginning the Project, 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. Developer will further require in its general
contractor construction contract that (I) 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 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 or subcontractor agrees 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 from the Project as City may be eligible to receive.
b) Developer shall do one of the following: (I) Developer will review the
Direct Payment Permit Process established under State Revenue and Taxation Code 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 with 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 the Project Site 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; Developer shall
provide to the City the vendor names, a description of the equipment to be purchased, the
purchase amounts for any out-of-state or out-of-country purchases exceeding $
500,000, and a copy of the applicable quarterly sales/use tax return reflecting payment of 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.c) City agrees to cause City's tax consultant (
currently, The HdL Companies)to reasonably cooperate with Developer, Developer's general
contractor and the general contractor's subcontractors to maximize City's receipt of
sales/use tax hereunder.28. Remedies. Upon either Party's breach hereunder,
the non-breaching Party shall be permitted to pursue
any remedy provided for hereunder.
SIGNATURES
IN WITNESS WHEREOF, the Parties have each executed this Agreement on the date
first written above.
ATTEST:
M(j~Ct,;/ ~
DEVELOPER:
ORANGE CITY MILLS LIMITED PARTNERSHIP
a Delaware limited partnership
By: ORANGE CITY MILLS GP, L.L.C., its General Partner
By: THE MILLS LIMITED PARTNERSHIP, its Executive Manager
By:THE MILL ORPORATION, its General Partner
J
I . .
I> 1; 0-1 nami~ EP. F Z RALD tjJpf Executive Viceresident,Domestic Development
25
ACKNOWLEDGMENTS
STATE OF CALIFORNIA
ss:
COUNTY OF ORANGE
On a../ 'ir . 200 -#:,.. before me. the undersigned, a Notary Public in and for said State.personally
appeared I'Y\f'ti2.ILA. MueJ>tN as _ . tJ\..p,...I,Oe- ufTHE CITY
OF ORANGE. a municipal corporation, personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executedthesameintheirauthorizedcapacities, and that by their signatures on the instrument the person or the entity
upon behalf of which the person acted. executed the instrument.WITNESS
my hand and official seal.I
a. .
wICE
SHARYNIIHDl.fM I a:
COMM. 11285021 ~NOIMY
PI8JC.CUllIlIIA !ORANGEaurlY
I . My Comm.
Exp. Doc. 1l1.2II04 J A.-i ature
Notary s~
e.ty
STATE OF /COUNTY
F . ~
ss:On
04"e.
8 ,
2001:..... before me, the undersigned. a Notary Public in and ID2~ Stata..,-t-personallyappearealcvcnrl" ? :j:::tx~(colasE.<.o:.v. V. Po) 'J>c,r,.,=t-:L./ 'f"'i,f ORANCGE CITYMILLS LIMITED
PAR ERSHIP, a Delaware Limited Partnership, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to
me that helshe executed the same in hislber authorized capacity, and that by hislher 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.Nota!)' Seal]26
LEGAL DESCRIPTION
EXHmIT" A .,
PARCEL A:
PARCELS 3, 4, 5, 6, 7, 13, 16, 18, 19 AND 20 OF LOT LINE ADJUSTMENT NO. LL 96-
14 RECORDED APRIL 10, 1997 AS INSTRUMENT NO. 97-165656 OF
OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA, TOGETHER WITH PARCEL 2 OF
LOT LINE ADJUSTMENT NO. 97-4 RECORDED OCTOBER 15,1997 AS
INSTRUMENT NO. 97-515999, IN THE OFFICE OF THE COUNTY RECORDER
OF ORANGE COUNTY,CALIFORNIA, TOGETHER WITH PARCELS 1,3,4 AND 5 OF
LOT LINE ADJUSTMENT NO. LL 2001-05 RECORDED APRIL 30, 2001 AS
INSTRUMENT NO. 20010270254 OF OFFICIAL RECORDS
OF ORANGE COUNTY, CALIFORNIA.EXCEPT FROM THE PORTION THEREOF
INCLUDED WITHIN THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER
OF FRACTIONAL SECTION 35,TOWNSHIP 4 SOlITH, 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 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 FEET FROM THE SURFACE THEREOF, BUT WITHOUT THE RIGHT OF ENTRY,
AS RESERVED IN THE DEED FROM CHESTER M. BARNES AND OTHERS, RECORDED
OCTOBER 2,1959 IN BOOK 491 1,
PAGE 214, OFFICIAL RECORDS.ALSO EXCEPT THEREFROM ALL OIL, OIL
RIGHTS, MINERALS, MINERAL RIGHTS,NATIJRAL GAS, NATURAL GAS RIGHTS
AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY BE BELOW THE UPPER
100 FEET OF THE SUBSURFACE OF THAT PORTION OF THE
LAND HEREIN DESCRIBED TOGETHER WITH THE PERPETUAL RIGHT OF
DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND REMOVING THE SAME. FROM
SAID LAND OR ANY OTHER LAND, INCLUDING TIm RIGHT TO
WHIPSTOCK OR DlRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE
HEREINABOVE DESCRIBED, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO,
THROUGH OR ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED,
AND TO BOTTOMSUCH WHIPSTOCKED OR DIRECTIONALL Y DRILLED
WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
LIMITS THEREOF, AND TO REDRlLL, RETUNNEL, EQUIP, MAINTAIN, REPAIR,
DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT, HOWEVER, THE
RIGHT TO DRILL, MINE,EXPLORE AND OPERATE THROUGH THE SURFACE OF SAID
UPPER 100 FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE
DESCRIBED OR OTHERWISE IN SUCH MANNER AS TO ENDANGER THE SAFETY OF
ANY HIGHWAY THAT MAYBE CONSTRUCTED ON SAID LANDS, AS EXCEPTED IN FAVOR
OF HENRY J. SIEVERS AND FERN O. SIEVERS IN FINAL ORDER OF
CONDEMNATION IN SUPERIOR COURT CASE NO. 98716 ORANGE COUNTY, A COPY
OF WHICH WAS RECORDED JANUARY 29,1963 IN BOOK 6412, PAGE 519, OFFICIAL
COUNTY, AS TO THAT PORTION OF SAID LAND LYING SOUTHERLY OF THE
SOUTHERLY LINE OF SAID LOTS 33 AND 34 OF THE DAWN TRACT AS PER MAP
FILED IN BOOK 8, PAGE 21 OF MISCELLANEOUS MAPS, AND EASTERLY OF THE
WEST LINE OF THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER OF
SAID SECTION 35.
ALSO EXCEPT ALL SUBSURFACE WATER AND SUBSURFACE WATER RIGHTS IN
AND UNDER SAID LAND.
ALSO EXCEPT THEREFROM THAT PORTION OF PARCEL 3 OF LOT LINE
ADJUSTMENT NO. 96-14, RECORDED APRIL 10, 1997, AS INSTRUMENT NO.
97-165656 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY CONVEYED TO THE CITY OF ORANGE BY
INSTRUMENT RECORDED MAY1, 1998 AS INSTRUMENT NO. 1998-266726 OF
OFFICIAL RECORDS. ALSO EXCEPT THEREFROM THAT PORTION OF PARCEL 4 OF
LOT LINE ADJUSTMENT NO. 96-14, RECORDED APRIL 10,1997, AS INSTRUMENT
NO. 97-165656 OF OFFICIAL RECORDS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY CONVEYED TO THE CITY OF ORANGE BY
INSTRUMENT RECORDED MAY 1,1998 AS INSTRUMENT
NO. 1998-266727 OF OFFICIAL RECORDS.ALSO EXCEPT THEREFROM THAT PORTION
OF PARCEL 6 OF LOT LINE ADJUSTMENT NO. 96-14, RECORDED
APRIL 10, 1997, AS INSTRUMENT NO. 97-165656 OF OFFICIAL RECORDS, IN
THE OFFlCE OF THE COUNTY RECORDER OF SAID COUNTY CONVEYED
TO THE CITY OF ORANGE BY INSTRUMENT RECORDED MAY I,
1998
AS INSTRUMENT NO. 1998-266728 OF OFFICIAL RECORDS.
PARCELB:A PERPETUAL NON-EXCLUSrvE EASEMENT FOR PEDESTRIAN AND VEHICULAR
INGRESS, EGRESS, ACCESS AND PARKING PURPOSES FOR THE BENEFrr OF PARCEL A
OVER PARCEL 10 OF LOT LINE ADJUSTMENT NO. 96-14 RECORDED APRIL
10, 1997 AS INSTRUMENT NO. 97-165656 OF OFFICIALRECORDS OF ORANGE
COUNTY, CALIFORNIA, AS SET FORTH IN THE CITY P ARK1NG LOT
EASEMENT AGREEMENT .DATED APRIL 9, 1997, AND RECORDED APRIL
10,
1997
AS INSTRUMENT NO. 97-165664, OF OFFICIAL RECORDS
OF ORANGE COUNTY,CALIFORNIA.PARCELC:A PERPETUAL NON-EXCLuSrvE
EASEMENT FOR PEDESTRIAN AND VEHICULAR INGRESS, EGRESS, ACCESS AND CIRCULATION AND SURFACE DRAINAGE FOR
THE BENEFIT OF PARCEL A IN, ON, OVER, ACROSS AND THROUGH PARCELS 2,10
AND 15 OF LOT LINE ADJUSTMENT NO. LL 96-
14 RECORDED APRIL la, 1997 AS INSTRUMENT NO. 97-165656, OF OFFICIAL
RECORDS OF ORANGE COUNTY,CALIFORNIA, AND PARCEL NO.3 OF PARCEL MAP NO. 81-769, RECORDED
IN BOOK 172, PAGES 40,41 AND 42 OF PARCEL MAPS,
IN THE
EASEMENT AGREEMENT BETWEEN METROPOLITAN LIFE INSURANCE COMPANY
AND ORANGE CITY MILLS LIMITED PARTNERSHIP, DATED APRIL 9, 1997
RECORDED APRIL 10,1997, AS INSTRUMENT NO. 97-165666, OF OFFICIAL
RECORDS OF ORANGE COUNTY,
CALIFORNIA.
PARCELD:A PERPETUAL NON-EXCLUSIVE EASEMENT FOR VEHICULAR
AND PEDESTRIAN INGRESS, EGRESS, ACCESS AND CIRCULATION, SURFACE
DRAINAGE AND UNDERGROUND UTILITIES FOR THE BENEFIT OF PARCEL A, AS SET
FORTH IN DECLARATION OF ACCESS AND SIGNAGE EASEMENT, DATED JULY
11, 1996,RECORDED JULY 11,1996 AS INSTRUMENT NO. 96-0354694,
AS AMENDED BY AGREEMENT REGARDING EASEMENT AGREEMENTS
DATED AND RECORDED JULY II, 1996 AS INSTRUMENT NO. 96-0354696, BOTH
OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA, IN, ON, UNDER,
OVER, ACROSS AND THROUGH THAT PORTION OF LOT 15 OF TRACT NO. 3414, IN THE
CITY OF ORANGE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON
MAP THEREOF FILED IN BOOK 249, PAGES II TO 19, INCLUSIVE, OF MISCELLANEOUS
MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF ORANGE
COUNTY,
CALIFORNIA, DESCRIBED AS FOLLOWS:BEGINNING AT THE NORTHEASTERLY CORNER OF PARCEL 2,
AS SHOWN ON A MAP FILED IN BOOK66, PAGE 2 OF PARCEL MAPS, IN
THE OFFICE OF SAID COUNTY RECORDER, SAID CORNER ALSO BEING A
POINT ON A NON-TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 45.
50 FEET, A RADIAL LINE TO THE BEGINNING OF SAID CURVE BEARS
NORTH 19020'35"EAST; THENCE ALONG THE BOUNDARY OF SAID
LOT 15 THE FOLLOWING COURSES:WESTERLY 14.65 FEET ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 18026'47", TANGENT FROM SAID CURVE NORTH 89006'12" WEST
568.14 FEET TO A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A
RADIUS OF 26.83 FEET;SOUTHWESTERLY 42.25 FEET ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 90-12'57", NON-TANGENT FROM SAID
CURVE NORTH Ooo40'52"EAST, 135.99 FEET TO
A NON-TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 26.83 FEET, A RADIAL
LINE TO THE BEGlNNING OF SAID CURVE BEARS NORTH 89019'08"
WEST, SOUTHEASTERLY 42.04 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 89047' 03", TANGENT FROM SAID CURVE SOUTH 89006'12"EAST 582.
99 FEET TO THE NORTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID PARCEL 2;
THENCE SOUTH OQ051'31"WEST 84.67 FEET ALONG
SAID
NORTHERLY PROLONGATION TO THE POINT OF BEGINNING.PARCELE:A PERPETUAL
NON-EXCLUSIVE EASEMENT FOR SIGN AGE PURPOSES FOR THE BENEFIT OF PARCEL
A, AS SET FORTH IN DECLARATION OF ACCESS AND SIGNAGE EASEMENT,
DATED JULY 11, 1996, RECORDED JULY II, 1996
AS INSTRUMENT NO.
EASEMENT AGREEMENTS DATED AND RECORDED JULY 11,1996 AS INSTRUMENT
NO. 96-0354696, BOTH OF OFFICIAL RECORDS OF ORANGE COUNTY.
CALIFORNIA,IN, ON, OVER AND ACROSS THAT PORTION OF LOT 15 OF TRACT NO. 3414, IN
THE CITY OF ORANGE, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN
ON MAP THEREOF FILED IN BOOK 249, PAGES 11 TO 19, INCLUSIVE
OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
ORANGE COUNTY, CALIFORNIA, DESCRffiED AS
FOLLOWS:BEGINNING AT THE NORTHEASTERLY CORNER OF PARCEL 2, AS SHOWN ON
A MAP FILED IN BOOK 66, PAGE 2 OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER, SAID CORNER ALSO BEING A POINT ON A NON-
TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUSOF 45.50 FEET, A RADIAL LINE
TO THE BEGINNING OF SAID CURVE BEARS NORTH 19020'35" EAST; THENCE
ALONG THE BOUNDARY OF SAID LOT 15 THE
FOLLOWING COURSES:WESTERLY 14.65 FEET ALONG SAID CURVE TIIROUGH A CENTRAL
ANGLE OF 18026'47", TANGENT FROM SAID CURVE NORTH 89"06'12" WEST 568.14 FEET
TO A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 26.
83 FEET;SOUTHWESTERLY 42.25 FEET ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 90012'57", NON-TANGENT FROM SAID CURVE NORTII 00040'52"
EAST, 135.99 FEET TO A NON-TANGENT CURVE
CONCAVE NORTHEASTERLY HAVING A RADIUS OF 26.83 FEET, A RADIAL LINE TO THE BEGINNING
OF SAID CURVE BEARS NORTH 89019'08" WEST, SOUTIIEASTERLY 42.04
FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 89047' 03", TANGENT
FROM SAID CURVE SOUTH 89006' 12" EAST 582.99 FEET TO THE
NORTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID PARCEL 2; THENCE SOUTH OQ051'31"
WEST 84.67 FEET ALONG SAID NORTHERLY PROLONGATION TO
THE
POINT OF BEGINNING.PARCELF:A PERPETIJAL, NON-EXCLUSIVE RIGHT
AND EASEMENT FOR SIGNAGE PURPOSES FOR THE BENEFIT OF PARCEL A, UPON, UNDER. ON,
IN, OVER AND ACROSS THE LOCATIONS ON THE REAL PROPERTIES
DESCRIBED IN THE CITY COVENANTS,CONDITIONS AND RESTRICTIONS DATED APRIL 9,
1997, RECORDED APRIL 10, 1997 AS INSTRUMENT NO. 97-165663,
OF OFFICIAL RECORDS OF ORANGE COUNTY,CALIFORNIA, AS SET
FORTII
IN
SAID COVENANTS, CONDITIONS AND RESTRICTIONS.PARCELG:A PERPETUAL, NON-
EXCLUSIVE EASEMENT, SUBJECT TO THE TERMS AND CONDlTlONS
CONTAINED THEREIN, FOR PEDESTRIAN AND VEHICULAR INGRESS,EGRESS AND PARKING OVER
AND ACROSS THE PROPERTY DESCRIBED IN THE DECLARATION OF CROSS
PARKING EASEMENT DATED NOVEMBER 25,1997 AND RECORDED JANUARY 21,
1998 AS INSTRUMENT NO. 1998-
33262, OF OFFICIAL
PARCELH:
A PERPETUAL, NON-EXCLUSIVE EASEMENT FOR THE USE,
OPERATION,MAINTENANCE, REPAIR, REPLACEMENT, RELOCATION AND REMOVAL OF
THE UTILITY FACILITIES, FOR THE BENEFIT OF PARCEL A, OVER THOSE PORTIONS
OF THE "PARKWAY PROPERTIES" AS DESCRIBED IN THE DECLARATION OF
UTILITY LINE EASEMENT RECORDED JULY 11, 1996 AS INSTRUMENT NO. 1996-
354693, OF
OFFICIAL
RECORDS.PARCELl:A PERPETUAL, NON-EXCLUSIVE RIGHT AND EASEMENT FOR
SIGN AGE PURPOSES FOR THE BENEFIT OF PARCEL A, UPON, ON, IN, OVER
AND ACROSS THOSE PORTIONS OF PARCEL 1 OF PARCEL MAP NO. 81-769, IN
THE CITY OF ORANGE,COUNTY OF ORANGE, STATE OF CALIFORNIA, RECORDED IN
BOOK 172, PAGES 40-42 OF PARCEL MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY AS DESCRIBED IN THE
SIGNAGE EASEMENT AGREEMENT RECORDED AUGUST 23, 1999 AS INSTRUMENT NO.
1999-612718, OF
LOT 20. OF TRACT NO. 3414, IN THE CITY OF ORANGE, COUNTY OF ORANGE, STATE OF
CALIFORNIA, AS SHOWN ON A MAP THEREOF FILED IN BOOK 249, PAGES II TO 19
INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
ORANGE COUNTY.
EXCEP~ THAT PORTION OF SAID LOT 20, CONVEYED TO THE CITY OF ORANGE B~ DEED
RECORDED FEBRUARY 18, 1970 IN BOOK 9219. FAGE 338, OFFICIAL RECORDS.
EXCEP'l' FROM THE PORTION THEREOF INCLUDED WITHIN THE NORTIlWEST QUARTER OF THE
SOUTHEAST QUARTER OF FRACTIONAL SECTION 35, TOWNSHIF~4 SOUTH, RANGE 10 WEST, IN
THE RANCHO LAS BOLSAS, IN THE CITY OF ORANGE, COllNT'! OF ORANGE. STATE OF
CALIFORNIA. AS PER MAP RECORDED IN BOOK 51. PAGE 10 OF SAID MISCELLANEOUS MAPS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COllNT'!, ALL OIL AND 0TlIER MINERAL
RIGHTS IN OR UNDER SAID LAND L~ING BELOW A DEPTH OF 500 FEET FROM THE St1R.FACE
THEREOF, BUT WITHOUT THE RIGIl'l' OF EIl'1'RY. AS RESERVED IN THE DEED FROM CHESTER M.
BARNES AND OTHERS. RECORDED OCTOBER 2, 1959 IN BOOK U11. PAGE 214, OFFICIAL
RECORDS.
ALSO EXCEP'l' THEREFROH ALL OIL, OIL RIGH'l'S, KINBRALS. KINERAL RIGH'l'S. NA'l't1RAL
GAS. NATURAL GAS lUGH'l'S AND OTHER HYDROCARJIONS BY WHATOSEVER NAIIIB 1QlOWN THAT MA~
BE BELOW THE UPPER 100 FEET OF :rHB SUBSt1IU'ACll OF THAT PORTXON OF THE LAND IlEREIN
OESClUBED TOGETHEll WITH THE PEIlPE'1'UAL RIGHT OF DlULLING. KDlDIG. BXPLOIlING AND-
OPEIUlTING 'l'HE1UlJ'OR AND IU!HJVING THE SAHB FROH SAID LAND OR ANY OTHER LAND.
INCLUDING THE lUGH'l' TO WHIPll'1'OCJt OR DIREC'l'IOlOoLLY DRILL AIlD HDlB PROK LAHI)S
0'1'HEIl THAN THOn IlEREIHABOVB DBSCJaBBD. OIL OR GAS WBLLS. TUHNBI.S ANO SIfAI'1'S
INTO. THRDtlGH em ACROSS THB SUIlSURPACll OF THE LAND IlEREINA80VB DESCRIBED. AND TO
BO'l"1'OK SUCH WRIPSTv..;zuw OR DIRBC'1'IOlOoLLY DRILLED WELLS. TUHNBI.S AND SIIAF'1'S UNDER
AND BBllBATH OR 1lBY0Ntl THE Blt'l'BRIOR LIKI'l'S '1'HBRIlOP. AND TO RBDRILL. RE'1'lJNHBL.
EQUIP. MAINTAIN. REPAIR. DBUIlN AND OPERATB ANY SUCH WELLS OR KD/BS" WITIIOCT.
HOWEVER. THE RIGH'l' TO DIULL, HDlB. EXPLORE AND OPBRA'l'B TllRotlGH '1'HB SURJ'ACll OF
SAID OPPER 100 FEET OF THE SUBSt1IU'ACB 01" THE LAND IlB1IBINAIIOVII DESCRIBED OR
Cl'I'HERWl:SB IN SUCH MlUlNBR AS TO ENIlAtIGER TIIJ: SAl'B'1'Y 01" ANY HIGHWAY THAT MAY BE
CONSTRUCTED ON SAID LAHI)S. AS BXCBP'1'BD IN FAVOR OF HENRY J. SIEVERS AND FERN O.
SIEVERS IN FINAL ORDER OF CONDBllNATION IN SUPERIOR COURT CASB NO. 98716 OIWlGB'
COllNT'!. A COPY OF WHICH WAS RIlCOIlD3D JAHUARY 29. 1963 IN BOOK. 6412. PAGE 519,
OFFICIAL RECORDS or SAID 01WlGB COUN'1'Y. AS TO THAT PORTION or SAID LAND LYING
SOt11'HERL~ or THE SOU"l-......LY LDIB or SAID LO'l'S 33 AND 34 01" TIll: DANK TRAC'l' AS PER
MAP FILED IN BOOK 8. PAOlI 21 or lIISCILLAHBOUS IlAPS. AND EAS'l'BRL~ OF THE WBS'l'
LINE OF THE NOJlI1'IIUST~ QUARTER or THE SOO'1'IIBAST Qt1ARTIR or SAID SBCTION 35.
ALSO EXCllP'l' ALU SUB8UIlFACII 1fA'l'BR AND St1BSt1RPACll 1fA'l'BR RIGH"l'S Dr AND tINDER SAID
LAND.
ll: I~
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Exhibit C
Design Security Features
To ensure adequate services are provided and to minimize the demands on police service,
security and design measures that employ Defensible Space concepts will be utilized in
development and construction plans. These measures incorporate the concepts of Crime
Prevention Through Environmental Design (CPTED), which involves consideration such
as placement and orientation of structures, access and visibility of common areas,
placement of doors, windows, addressing and landscaping. CPTED promotes public
safety, physical security and aIlows residents and visitors the ability to monitor activity in
neighboring areas. The project elements that would address CPTED wiIl include but not
be limited to the foIlowing:
I. The City's Building Security Standards (OMC Chapter 15.52) shaIl be
imposed on the Project and will include requirements for door hardware,
lighting, addressing, landscaping, window security and construction specifics.
2. To limit unauthorized access to the residential development, elevators shaIl
have access controIled security vestibules permitting use by residents and
authorized personnel only.
3. Landscape design shaIl avoid dense plantings immediately adjacent to
buildings that create hiding places.
4. Landscaping design shaIl focus on creating usable space within courtyard
areas to encourage outdoor activity.
5. Recreational areas are to be located in such a way as to encourage a high level
of activity and opportunities for interaction among residents.
6. Travel time from building access points to apartment units shaIl be minimized
through the design of haIlway and corridor lengths.
7. A clear permanent architectural definition between public and private space
for the residential and retail uses shaIl be included in the design. These
definitions could included any or all of the following:
a. Unique architectural treatments.
b. Low fencing along landscape areas.
c. Stamped paving differences in drive isles.
d. Landscape patterns along borders.
8. Elevators must be adequately sized to discourage hiding places and stairweIls
should include view panels.
9. Alcoves are discouraged, but when necessary shall be limited to 12 inches in
depth to avoid creation of hiding places.
10. Parking structure design shall maximize visibility and surveillance through the
use of open stairwells, long-span construction and high ceilings,
increased lighting and uniformity, vandal resistant lenses on light fixtures, use of
video cameras and convex
mirrors.11. Access points into the parking structures for non-residents/guests
shall be limited by use of security grilles, gates and parking
attendants/security personnel. Security stations should be located where direct
monitoring of activity
is encouraged.12. Emergency phone locations shall be situated in all levels of
the parking structure at the determination of the City
Police Department.13. CCTV (cameras) shall be located throughout the parking
structures especially in areas such as the entrance, exit, elevator lobbies and
stairwells. The owner/contractor shall work closely with the City Police Department
to ensure maximum effectiveness of
the system.14. Illuminated diagrammatic apartmentlhotel directory at the main entrance
to the complex shall be included to assist in response time for
emergency personnel
entering site.15. All gates shall be keyed to Medico keyway combinations of the
City
Police Department.16. Building design will incorporate windows on all sides to
provide opportunities for observation of
outdoor activities.17. An address and photometric lighting plan shall be submitted to the
City Police Department for approval prior to start of construction. This plan
will include all parking structures and open lots in the
development plans.18. These measures are not intended to constitute an exhaustive list and
the Parties shall cooperate to implement additional and/or alternative
security measures depending on the features of