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Home My WebLink About02. Intro Ord Approving 2nd Amendment to Tierra Luna Developoment AgrmtA1C TO: • • i ' AND MEMBERS OF i FROM: OFFICE OF r• E. SCHINDLER,DIRECTOR • COMMUNITY DEVELOPMENT r _ �'iGl:t•I'a��I�y�: SECOND AMENDMENT TO TIERRA LUNA DEVELOPMENT BETWEEN THE CITY OF DOWNEY, PCCP IRG t• ri AND US VI DOWNEY, LLC That the City Council take the following action: -•'r •-r - t •-r • rri r• - r Wr r• •k, Lra L 11• The City of Downey • • the property n• _Promenade Shopping Center • PCC. IRG Downey, LLC, and IRG Downey, • -ly "Developer ) on • •- 2003. The City and the Developer entered into a Development Agreement for the Promenade Shopping on i Development ' Agreement dictated the land to be developed, - for development,.cote. •.'. development r: covenants •:n.various aspects of the development. • .••:•..'•. �- - ••. �.�- - • t ice' '1 •. rig Agreement be t• i is SECOND AMENDMENT TO TIERRA LUNA DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DOWNEY, PCCP IRG DOWNEY AND IRG DOWNEY MARCH 26, 2019 PAGE 2 On January 10, 2012, the City Council held a public hearing on this Agreement, considered the recommendations of the Planning Commission, and found that this Agreement was consistent with the General Plan. In accordance with the Development Agreement Statute and applicable law, on January 24, 2012, the City Council approved the Development Agreement. The partnership between the City and Developer produced the Promenade shopping center which hosts a 656,000 -square -foot shopping center and entertainment district, and has emerged as the area's new gathering spot and destination, merging retail, dining, and entertainment. The development also created 1,000 jobs through construction and existing operating retail and restaurants. At the August 2, 2017 Planning Commission meeting, staff recommended, and the Planning Commission subsequently recommended a first amendment to the Development Agreement, which was approved by the City Council on August 22, 2017. The owner has now requested a second amendment to the Development Agreement to extend the term of the Development Agreement for five years. The center is now 95% leased; as a result, the developer is working on conceptual plans for the next phase of development. The developer and former owner of the Promenade, PCCP IRG Downey, LLC and IRG Downey, LLC ("Former Owner") sold "The Promenade at Downey" to US VI Downey, LLC ("New Owner") on September 20, 2018 and entered into an Operating Agreement with the New Owner to cooperatively develop the remaining 20 acres of vacant land adjacent to the Promenade fronting Bellflower Boulevard. The Former Owner currently leases the remaining 20 acres adjacent to the Promenade from the City of Downey. The Former Owner wishes to start the conceptual site plan, design, marketing, and land assembly of the vacant 20 acres to compliment the Promenade. With this in mind, they have requested additional time to develop the site. The Development Agreement provides for the build -out of the adjacent 20 acres and the adaptive reuse of the former NASA and Vultee buildings that front onto Lakewood Boulevard. The City has been interested in retaining the historical context of the NASA and Vultee buildings and providing an end use that could serve the community and compliment the center. The Operating Agreement entered into between the New and Former Owners allows them to work cooperatively in the future build out of the entire Promenade area. Currently, the Development Agreement is set to expire on April 20, 2019; however, in order to plan appropriately for a project of this size they had requested a 10 -year extension of the term of the Development Agreement, which would start if the City Council approves the request. A time extension will also allow the City to work with the New and Former Owners on the final conceptual development plans for the total combined site. Accordingly, ownership asked for a second amendment to the Development Agreement to extend the term by 10 years. This request was presented to the Planning Commission on February 6, 2019. The Planning Commission is eager to see development occur on the site, and recommended a five-year term extension instead of the 10 -year term extension as requested by the Promenade Ownership. Subsequent to the Planning Commission's recommendation, city staff discussed the shorter term with the Promenade Ownership and both parties agreed to the five-year term. A 041191 BETTTEER TAE CITT OF DOTTRET, PCCP IRU UUTITITET-ARUIKU UVIT MARCH 26,2019 PAGE 3 FISCAL IMPACT Uvi 1-1 R HT, 19 A -►T1 W Attachment A: Ordinance (with: Tierra Luna Development Agreement, First and Seconi Amendments to Tierra Luna Development Agreement) Attachment B: Second Amendment to Tierra Luna Development Agreement Attachment C: P.C. Resolution No. 19-3082 Attachment D: Planning Commission Staff Report Attachment E: Draft Planning Commission Minutes AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DOWNEY APPROVING A SECOND AMENDMENT TO THE TIERRA LUNA DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DOWNEY, PCCP IG DOWNEY, LLC., IRG DOWNEY, LLC., AND US VI DOWNEY TO AMEND THE TERM OF THE AGREEMENT WHEREAS, on November 30, 2003, the City of Downey ("City") sold the property now known as the Promenade at Downey shopping center to PCCP IRG Downey, LLC, and IRG Downey, LLC (collectively "Developer"); and, WHEREAS, on March 15, 2012 the City and the Developer entered into the Tierra Luna Development Agreement for the Promenade at Downey shopping center, which is attached hereto as Exhibit "A" and incorporated herein by reference; and, WHEREAS, on August 2, 2017 the Planning Commission recommended a first amendment to the Tierra Luna Development Agreement, which was approved by the City Council on August 22, 2017 which is attached hereto as Exhibit "B" and incorporated herein by reference; and, WHEREAS, on September 20, 2018 the Developer sold the property to US VI Downey, LLC ("New Owner") and entered into an Operating Agreement with the New Owner to cooperatively develop the remaining 20 acres of vacant land adjacent to the Promenade fronting Bellflower Boulevard; and, WHEREAS, the City, the Developer, and New Owner now wish to enter into a second amendment extending the term of the Tierra Luna Development Agreement five years which is attached hereto as Exhibit "C" and incorporated herein by reference; and, WHEREAS, the Planning Commission held a duly noticed public hearing on February 6, 2019, and after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearing adopted Planning Commission Resolution 19-3082, thereby recommending that the City Council approve a five-year term extension amendment to the Tierra Luna Development Agreement between the City of Downey, PCCP IRG Downey, LLC., IRG Downey, LLC., and US VI DOWNEY, LLC.; and, WHEREAS, the City Council held a duly noticed public hearing on March 26, 2019, to fully consider all oral and written testimony and facts and opinions regarding the Second Amendment to the Tierra Luna Development Agreement; and, WHEREAS, the City Council finds, determines and declares the environmental impact of the proposed project has been reviewed and has been found to be in compliance with the California Environmental Quality Act (CEQA) and is categorically exempt from CEQA, pursuant to Guideline Section No. 15301 (Class 1, Existing Facilities); and, WHEREAS, having considered all of the oral and written evidence presented to it at said public hearing, the City Council further finds, determines and declares that: 1. The requested amendment to the Tierra Luna Development Agreement is consistent with the City's adopted General Plan. The subject site has a General Plan Land Use Designation of Mixed Use, which is intended to provide a variety of uses (retail, office, restaurant, entertainment) within close proximity to each other. Amending the Tierra Luna Development Agreement achieves this goal by allowing the continual growth of the • ` i 1 • Mr-ITTLet Promenade at Downey shopping center, and adjacent vacant 20 acres. This amendment will also streamline the review process for new tenants, which is consistent with General Plan Policy 9.4.2, which states, "Streamline the development review process." 2. The requested amendment to the Tierra Luna Development Agreement is consistent with the Downey Landing amended Specific Plan. The Tierra Luna Development Agreement is for the construction and operation of the Promenade at Downey shopping center, and adjacent vacant 20 acres. While the proposed change streamlines the review process for new businesses that want to operate in the shopping center, and adjacent vacant 20 acres, it does not alter the permitted uses. Additionally, no changes will occur to building locations, parking requirements, landscaping, or other development standard. NOW, THEREFORE,• OF THE CITY OF DOWNEY• ORDAIN AS FOLLOWS: SECTION 1. Based upon the findings set forth in this ordinance, the City Council of the City of Downey hereby approves the five-year term extension to the Tierra Luna Development Agreement, which is outlined in Exhibit "C", which is attached hereto and made a part hereof. SECTION 2. If any section, subsection, paragraph, sentence, clause or phrase of this Ordinance is declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance, and each section, subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or more sections, subsections, phrases, or portions be declared invalid or unconstitutional. SECTION 3. The City Clerk shall certify the adoption of this Ordinance and cause the same to be published in the manner prescribed by law. APPROVED AND ADOPTED this day of 2019. Rick Rodriguez, Mayor r-'VU*" Maria Alicia Duarte, CMC City Clerk STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss CITY OF DOWNEY ) I HEREBY CERTIFY that the foregoing Ordinance No. 19- was introduced at a Regular Meeting of the City Council of the City of Downey held on the 26'h day of March, 2019, and adopted at a Regular Meeting of the City Council of the City of Downey held on the _ day of _, 2019, by the following vote to wit: AYES: NOES: ABSENT: ABSTAIN: I FURTHER CERTIFY that a summary of the foregoing Ordinance No. 19- was published in the Downey Patriot, a newspaper of general circulation in the City of Downey, on _, 2019 (after introduction), and on _, 2019 (after adoption including the vote thereon). It was also posted in the Regular posting places in the City of Downey on the same dates. Maria Alicia Duarte, CMC City Clerk i ' 'I . 0 •. n r Ewsnr 04120/12 AT 08:OOAM VIIUIIIIIII�IAIIIIIIVII�II�II��VIVIIAI�V�RIIIIIA 201204200170027 003936047 is m 0.00 0x00 0.00 oloo L W 1. 10 , '? . doBY FIRST AMERICAN I I I Brookshire Downey, CA 90241 Attn: City Clerk 2698521.7/iManageM 0281 10-000213-14-12JIThViac I �IfIIP20V,�1'��BI��I�� , (Space Above this Line is for Recorder's Use Only) This Development Agreement is recorded at the request and for the benefit of the City of Downey and is exempt from the payment of a recording fee pursuant to Government Code § 27383. N I I N El ty-MIRY-11 by and between CITY OF DOW and PCCP IRG DOWNEY, LLC, interest-, and IRG DOWNEY, LLC, T ti-Fidivided 10% intekps�q ffi- 'i"ORDER MEMO: This COPY is NOT an OFFICIAL'RECORD. �ip ll TERM ............................................................................. ...................................... ........ 2.1 Term .......................................................................................................... ....... .11 2,1.1 Term without Enhanced Project Election ............................................... ll 2'1.3 Term with Enhanced Project Election .................................................... |\ 2.2 Provisions Surviving mfTerm ........................................................... l\ 4. FEES, CONDITIONS,PDBLTC BENEFITS, AND AUDIT RIGHTS ......................... l5 4.1 Temporary Fee Rebate ..................................... ..................................... ........... i5 4.2 Other Fees and Charges ................. .................................................................... l5 4.3 ......... ...................... .... .................................... ,_-................... l6 4.4 Accounting and Review ...................................................................................... l6 4/¢.1 Maintenance of Books and Records ....................... ............................... \6 4.4,2 Allocation ofCosts and Expenses --..—....,....,.--.—......--l8 4.4.3 Non -Waiver By City .................................................... ........................... l6 4/4.4 .................................... .................................................... 17 4/4.5 Survival mfAudit Rights ....... ............ ................................................ ... l7 5.2 Large Format and Remaining Commercial Development Retailers .... . ......... _ 17 680/029110-0002 5,6 Maintenance Covenant ....................................................................................... l@ 5,6.1 General Maintenance of Property ................................... .-._..........l8 5.6.2 Graffiti ... ................. ........ —_... .... -............. .._...... .—........._.l0 5.6.3 Lien Rights ............................................................................ --_... l9 6� DEVELOPER COVENANTS RELATING TO THE ENHANCED PROJECT ........... 19 7' ..............--.—_—..—.-----.—.--_--.2| 7,1 Obligation toRefrain from Discrimination ........................................................ %l 7.2 Form qfNou-discdndnmdmuand ClauoeV---... —... ... —.2\ 7]'1 Imdeeds ................. —....... ____ ...... ___ ....... ............ __^............. 2\ 7.2.2 Imleases ..---.--.._......... _...... ............ ..~............ ...... 2G 8.1 Election to Require Development of Fire Station Site . .......... ......... 22 8.5 Conveyance of Fire Station and Fire Station Site to City ......... 22 10.3 Certificate of Compliance .............. ............ ........ .......... .............. .... ---,25 1. 1 MORTGAGEE RIGHTS ......................................................................... ...................... 25 11.1 Encumbrances on the Property ._.,-....--.—..--.----.~._'....-.25 580/028/10-0002 ' Im 11.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ...... -- .... ... --- 25 13. INSURANCE AND INDEMNITY .... ................................................................ .......... 27 ]3,| Insurance ........ .................... ............................................................................... 27 13.1.1 Base Project Insurance ... ........ ............ ---- ... ......... ......... ~.,_... ^27 13.12 Enhanced Project Insurance .... .......... ^............................... %7 .^...-^..—.... 13.1.3 Insurance Does Not Relieve Liability ................... .,,.,,.,......... ,'~,_.^27 13.1.4 Default for Failure to Maintain Insurance .................... ...`.................. 27 13.2 Indemnities hvDeveloper ............. ............................ ...................................... %7 13.2'1 General Indemnity ................................................. Z7 ............... ................ 132.2 Prevailing Wage Indemnity and Notice to Developer of Labor CodeSection 1781. ............ .... .......... .......... --- 27 ................................ 13.2.3 Environmental Indemomitv... ........... .................................. ..:.~............ 28 13.3 Indemnification Poocedureo..._—_—........ ........ ......... —~~..~..~.^.......... 29 13.3.1 Prompt Notice ................................... —.............. ................................ 29 13,3.2 Cooperation '.........................................................................29 13.3.3 Settlement .................. ....... ,^........................... ^................ ...................... 29 13.3^4 City Cooperation .............................. ..—.............................. ............... .2A 13.3.5 Insurance Proceeds ........................... .....~'^—^''^^.^^'^..^.^.^^'~^'29 14, THIRD PARTY LEGAL CHALLENGE .............................. ............................ ,....... 29 14L1 Developer Covenant b»Defend this Agreement..-. ........................... 15, MISCELLANEOUS .......................................................... ............................................ 30 15.1 Compliance, with Applicable Law ............................................... .................... 30 15.2 Covenants ..................................................................................... ...................... 30 15.3 Mutual Covenants, ............... ............... ..^..~.,.—~—...... ....--..—..—.....30 15.4 Recmrdation� u Agreeouwmt...... ............ ..—..—..—...~....—.—................ 15.5 .3G Constructive Notice and Acceptance ..................... ...................... 30 15.6 ..................... Successors ioInterest ................................................................................ 38 15.7 ......... �� _'=moanmgerampoennenmato/w....._..--,.~--.~—..,—.~^....^—,.—,...._'_.�30 15.8 Political Refim2nAct ...................................................... ..--- .............................. 3l 15.9 Survival of Agreement, ............ ....^.....-~,~,.~........ ..~--.-.~.—.... ..... .... 3l 85'10 Entire Waivers and Amendments ................................................... 3l 15.11 Principles of Interpretation.,~.~_...~.~.~~~-,~~.._---.~'..—.—.—. 31 15.12 Incorporation of Recitals .................................................................................... ]2 15.13 Section Headings and Section and Article References .................. 32 15.14 ...................... Singular and Plural ......... ............................... ................... ........... .................... 32 660/020 JIQ-0002 15.16 Time of Essence ................. ..., ....... I ......... : ............................................... .... 32 15,17 Further Actions and Instruments . ........ .......................... ____ �_ 32 15.18 Severability .................... .................. .................................... ............................ 32 15.19 Legal Expenses .......................... ___ ...... ....... __ ... ....... __ ...... - ................. 32 15.20 No Third Party Beneficiaries.. .... ...... _ ... ___ ........ _ ............... ...... ... - ..... � 33 15.21 Relationship of Parties... ..... __ .......................................................................... 33 15.22 Development as a Private Undertaking ............................................................... 33 15.23 Inspection of Books and Records ....................................................................... 33 15.24 Estoppel Certificate... .............. ........................................................................... 33 15.25 Applicable Law; Venue ..... ............ ............ . ..................................................... 34 15.26 Non -Liability of City Officers and Employees .................................................. 34 15.23 Notices ...... - ....... ......... ........... ........... __ 34 15.31 Authority to Execute .................................................................... ....................... 35 15.32 Authority to Execute ........................................... ....... ___ ...... __ .... � 35 15J3 Execution of Agreement; Counterparts ...................... ....................................... 35 15.34 Exhibit '49 680102811 WD2 2699521.7 03/14/12 -iv- This TIE RRA LUNA DEVELOPMENT AGREEMENT ("Agreement") is entered into this 151h day of March, 2012, by and among the CITY OF DOWNEY, a California charter city ("City") and PCCP IRG DOWNEY, LLC, a Delaware limited liability company, as to an undivided 90% interest, and IRG DOWNEY, LLC, a California limited liability company, as to an undivided 10% interest (collectively, "Developer"), City and Developer are collectively referred to herein- as the "Parties" and individually as a "Party." R. E c I T A. L S A. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of California adopted the "Development Agreement Statute," Sections 65864, el seq., of the Government Code. The Development Agreement Statute authorizes City to enter into an agreement with any -person having a legal or equitable interest in real property and to provide for the development of such property and to establish certain development rights therein. B. Developer owns that certain real property consisting of approximately 58 acres of land area located at 12214 Lakewood Boulevard in the, Downey Landing Specific Plan Area, within the City of Downey, County of Los Angeles, State of California, as more particularly described in the legal description attached hereto as Exhibit "A" and depicted on Exhibit NY (the "Developer Owned Property"). C. Developer holds a leasehold interest in that certain real property consisting of approximately 20 acres of land area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area, within the City of Downey, County of Los Angeles, State of California, as more particularly described in the legal description attached as Exhibit "C" and depicted on Exhibit "D." (the "Developer Leased Property"). The Developer Owned Property and the Developer Leased Property abut each other. D. The Developer Owned Property and the Developer Leased Property are collectively described as the "Property." The Property is depicted on Exhibit "E" E. The Amended Downey Landing Specific Plan ("Specific Plan") allows for the development of the Property with a mixed-use commercial development consisting of up to 1,035,000 square feet of non -theater commercial/retail floor area; an additional 65,000 square feet of commercial/retail floor area for a theater use, 300,000 square feet of office floor area; and 116,000 square feet of hotel floor area (150 hotel rooms). The Specific Plan contemplates that, subject to City's approval if placed on the Developer Owner Property, an additional 200,000 square feet of office floor area may be incorporated into the proposed development so long as the retail floor area is decreased by 200,000 square feet and the total square footage of the proposed development does not exceed 1,516,000 square feet. Development of the Property in any manner consistent with the Specific Plan and the remaining Existing Land Use Regulations is hereinafter referred to as the "Base Project." 2698521.7/iMmageMS 0101 10-000213-14-12finiAn WTITIF9s-r F. Through this Agreement, the City has committed to provide certain vested rights to Developer in exchange for (i) the development of the Base Project on the Property, and (ii) Developer's provision of certain additional public benefits to City. G. Developer desires to develop the Property in a specific configuration that is consistent with the Specific Plan, consisting of the Large Format Retail Development, the Remaining Commercial Development, the Theater Development, the Office Development, and the Hotel Development, De'veloper's development of the Property within the parameters set forth in this Recital, and in a manner consistent with the Existing Land Use Regulations, is hereinafter referred to as the "Enhanced Project." H. Through this Agreement, the City has committed to provide certain additional inducements and benefits to Developer in exchange for the development of the Enhanced Project on the Property. 1. This Agreement is intended to be, and shall be construed as, a development agreement within the meaning of the Development Agreement Statute, This Agreement will eliminate uncertainty in planning for and secure the orderly development of the Property, ensure a desirable and functional community environment, provide effective and efficient development of public facilities, infrastructure, and services appropriate for the development of the Property, assure attainment of the maximum effective utilization of resources within City, and provide other significant public benefits to City and its residents by otherwise achieving the goals and purposes of the, Development Agreement Statute. in exchange for these benefits to City, Developer desires to receive the assurance that it may proceed with development of the Property in accordance with the terms and conditions of this Agreement and the Existing Land Use Regulations (as defined below), all as more particularly set forth herein. WJ. City has determined that the Base Project and. the Enhanced Project are consistent 0 with the goals and policies -of the General Plan and imposes appropriate standards and 0 W requirements with respect to the development of the Property in order to maintain the overall quality of life and of the environment within City. Prior to its approval of this Agreetnent, City considered the environmental impacts of the, Base Project and the Enhanced Project and completed its environmental review of the Based Project and the Enhanced Project. LL LL 0 K. On December 21, 2011, the Downey City Planning Commission ("Planning r_ Commission") held a public hearing on this Agreement, made certain findings and M determinations with respect thereto, and recommended to the City Council of the City of 0 Downey ("City Council") that the Agreement be approved. Z L. On January 10, 2012, the City Council held a public hearing on this Agreement, D_ considered the recommendations of the Planning Commission, and found that this Agreement is O consistent with General Plan. In accordance with the Development Agreement Statute and U applicable law, on January 24, 2012, the City Council adopted Ordinance No. 05-10 approving M rc this Agreement. 2698521.7/iMariagoOMS 028110-0002/3-14.121JI'MAae AGREEMENT Based upon the foregoing Recitals, which are incorporated herein by this reference, and for good and valuable consideration, die receipt and sufficiency of which is hereby acknowledged, City and Developer hereby agree as follows. The following terms when used in this Agreement shall have the meanings set forth 1.1 The term "Action" shall mean any proceeding between City and Developer seeking enforcement of any of the terms and provisions of this Agreement. 1.2 The term "Agreement" shall mean this Development Agreement by and among City and Developer. 1.3 The term "Annual Review" shall have the meaning ascribed in Section 10.1 of this Agreement. 1.4 The term "Bankruptcy Law" shall mean Title 11, United States Code, and any other or successor state or federal statute relating to assignment for the benefit of creditors, appointment of a receiver or trustee, bankruptcy, composition, insolvency., moratorium, reorganization, or similar matters. 1.5 The term "Bankruptcy Proceeding" shall mean any proceeding, whether voluntary or involuntary, tinder, any Bankruptcy Law. 1.6 [RESERVED] 1.7 The term "Base Project" shall mean Developer's development of the Property within the parameters set forth in Recital E, and in a manner otherwise consistent with the Existing Land Use Regulations. 1.8 The term "CEQA" shall mean and refer to the California Environmental Quality Act, Public Resources Code Sections 21000, et seq. L9 The term "Certificate of Occupancy" shall mean A Certificate of Occupancy as defined in the Uniform Building Code, 2010 Edition, published by the Intemational Conference of Building Officials, as may be amended from time to time. 1.10 The term "Certification" shall mean a written certification provided on or before February 15 of each year during the Term, signed by Developer's managing member (1) certifying its compliance with the operating covenant and all other covenants and restrictions set forth in Article 6 for each Compliance Year for which Developer seeks a Grant (if Developer makes the election authorized by Section 6,1); provided, however, that this portion of the Certification shall not be required unless Developer elects to develop the Enhanced Project under 269852I.7IjMwojef)M3 0281 10-ON113-14-12ATM/lac -3- 1109914ADA-Mi ff-TIT63 a 0 [*1 yn ov:X61:1 Section 6.1 of this Agreement, and (U) demonstrating Developer's good faith compliance all terms of this Agreement for purposes of conducting the annual review required by Section 10. 1.11 The term "City" shall mean the City of Downey, a California Charter City. 1.12 The term "City Council" shall mean the City Council of the City of Downey. 1.13 [RESERVED] 1.14 The term "City Fees and Charges" shall mean Development Fees and City Processing Fees, to the extent such fees are collected by and on behalf of City. IEMH�� 1.16 The term "City Parties" shall mean City, City Council, City officers, employees, attorneys and agents. I 1.17 The term "City Processing Fees" shall mean all fees charged by and on behalf of the City in connection with the processing, review, and consideration of applications for development, including any periodic updates thereto to reflect changes in the costs of processing, review, and consideration of applications.. 1.18 The term "Claim" shall mean any claim, loss, cost, damage, expense, liability, lien, action, cause of action (whether in tort, contract, under statute, at law, in equity or otherwise), charge, award, assessment, fine or penalty of any kind (including consultant and expert fees, Legal Costs, and expenses and investigation costs of whatever kind or nature), and any judgment. Without limiting the foregoing, "Claims" include any matter that results or arises in any way from any of the following: (t) the noncompliance by Developer or its contractor with any applicable local, state and/or federal law or regulation, including, without limitation, any applicable federal and/or state labor laws or regulations (including, without limitation, if applicable, the requirement to pay state and/or federal prevailing wages and hire apprentices); (2) the implementation of Labor Code Section 1781 and/or Davis -Bacon, or any other similar law or regulation; and/or (3) failure Developer to provide any required disclosure or identification as required by Labor Code Section 1781 and/or Davis Bacon, as the same may be amended from time to time, or any other similar law or regulation. MM190MMEM 1.20 The term "Compliance Year" shall mean and refer to a period of one year. The first Compliance Year commences on the Operation Period Commencement Date and ends on the anniversary of the Operation Period Commencement Date. The second through twentieth Compliance Years follow thereafter. I 1.21 The term "Defaulting Party" shall have the meaning set forth in Section 9.1, 2698521.7/iManageM 029110-0002/3.14-1213MAfte -4- RZKO] w"I 101:4 IN iTJ A Lyj ISMS 1.22 The term "Davis -Bacon" shall mean , 40 U.S.C. Section 3141, et seq., and the regulations promulgated thereunder set forth at 29 CPR Part 1, as the same may be amended from time to time, or any other similar law or regulation. 1.23 The term "Developer" shall mean the individual or entity which owns fee title to the Developer Owned Property, or any portion thereof, and holds the leasehold interest in the Developer Leased Property, or any portion thereof, and any permissible successor or assignee to the rights, powers, and responsibilities of said individual or entity hereunder, in accordance with Section 12 of this Agreement. 1.24 The term "Developer Leased Property" shall mean that certain real property that abuts the Developer Owned Property, and consists of approximately twenty (20) acres of land area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area, within the City of Downey, County of Los Angeles, State of California, as more particularly described in the legal description attached as 1,.xhibit "C"' and depicted on F*.xilibit "Wo 1.25 The term "Developer Owned Property" shall mean that certain real property consisting of approximately fifty eight (58) acres of land area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area, within the City of Downey,' County of Los Angeles, State of California, as more particularly described in the legal description attached hereto as Exhibit "A" and depicted on Exhibit "13". (the "Developer Owned Property"). 1.26 The term "Developer Representative" shall have the meaning set forth in Section 5.5. 1.27 The term "Development Agreement Statute" shall mean Sections 65864 through 65869.5 of the California Government Code, as the same may be amended from time to time. 1.28 The term "Development Fees" shall rn ' can all fees collected by and on behalf of the City that are enacted by the City at any time pursuant to the Mitigation Fee Act, Government Code sections 66000 etseq. 1.29 The term "Effective Date" shall mean March 15, 2012. 1.30 The term "Enhanced Project" shall mean Developer's development of the Property within the parameters set forth in Recital G, and in a manner otherwise consistent with the Existing Land Use Regulations. 1.31 The term "Environmental Losses" means any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, attorney fees, disbursements and costs of attorneys, environmental consultants and other experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever that may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded against, City directly or indirectly relating to or arising from any Environmental Matters arising during or from Developer's ownership or use of the Property. 2698521_71M=gCVMS 026110-0002/3. W.1211'rh-Vlae 1.32 The term "Environmental Matters" means (i) the presence of Hazardous Substances on, in, under, from or affecting all or any portion or the Property; (ii) the storage, holding, handling, release, threatened release, discharge, generation, leak, abatement, removal or transportation of any Hazardous Substances on, in, under, from or affecting all or any portion of Property; (W) the violation of any law, rule, regulation, judgment, order, permit, license, agreement, covenant, restriction, requirement or the like by Developer , its agents or contractors, relating to or governing in any way Hazardous Substances on, in, under, from or affecting all or any portion oftile Property; (iv) the failure of Developer, its agents or contractors, to properly complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations, covenants and the like in connection with Developer's activities on all or any portion of the Property; (y) the implementation and enforcement by Developer, its agents or contractors of any monitoring, notification or other precautionary measures that may, at any lime, become necessary to protect against the release, potential release or discharge of Hazardous Substances on, in, under, from or affecting all or any portion of the Property; (W) the failure of Developer, its agents or contractors, in compliance with all applicable Environmental Laws, to lawfully remove, contain, transport or dispose of any Hazardous Substances existing, stored or generated on, in, under or from all or any portion of the Property; and (0) any investigation, inquiry, order, hearing, action or other proceeding by or before any Governmental Agency in connection with any Hazardous Substances on, in, under, from or affecting all or any portion of the Property or the violation of any Environmental Law relating to all or any portion of the, Property. 1.33 The term "Existing Land Use Regulations" shall mean the General Plan, the Specific Plan, the MOA (which is part of the Specific Plan) the Zoning Code,: the Municipal Code, Maps, and all other ordinances, resolutions, rules, and regulations of City governing development and use of the Property in effect as of the Effective Date, including without limitation the permitted uses of the Property, the density and intensity of use, maximum height and size of proposed buildings, provisions for the reservation and dedication of land for public purposes, and, subject to the following sentence, construction standards and specifications. The wterm "Existing Land Use Regulations" does not include the Uniform Codes pertaining to X construction adopted for general application in City. The Specific Plan provides that in the event Qof a conflict between the provisions of the Specific Plan and the provisions of the Zoning Code, 0 the provisions of the Specific Plan control. U- U- 1.34 The term "Equity Interest" shall mean all or any part of any direct or indirect 0 equity or ownership interest(s) (whether stock, partnership interest, beneficial interest in a trust, C M membership interest, or other interest of an ownership or equity nature) in any entity at any tier 0 F- of ownership that directly or indirectly owns or holds any ownership or equity interest in a Z Person. 2 >- 1.35 [RESERVED] (L 0 0 1.36 The term "Fire Station" shall mean a minimum of an eight thousand (8,000) T square foot portion of Building I that is required to be preserved in place by the MOA, The Fire Station shall be appointed with amenities and facilities that are the functional equivalent of those at a typical fire station headquarters existing at the time of the development of the Fire Station. LIJ LIJ 269352 1.11i.N4ww1eDMS -6- 0 0 0 I A 1.37 The Term "Fire Station Construction Costs" shall mean an amount not to exceed Four Million Four Hundred Thousand Dollars ($4,400,000), including but not limited to construction costs, soft costs, financing costs and a developer fee of ten percent (10%). 1.38 The term "Fire Station Lease" shall mean a lease by Developer to City of the Fire Station and the Fire Station Site upon the following material terms: (1) initial rental rate under the Fire Station Lease shall equal five percent (5%) of the Fire Station Construction Costs incurred by Developer in the construction of the Fire Station; and (2) City shall receive rights of access over the Property sufficient to meet the reasonable access and response time needs of the Downey Fire Department, as reasonably determined by the Fire Chief of the Downey Fire Department. 1.39 The term "Fire Station Site" shall mean a site within that portion of the Property comprising approximately 38,000 square feet, together with associated parking, depicted on Exhibit I'." 1.40 The term "Floor Area" shall mean the total area of all floors conta i ined within the exterior walls of all buildings on the Property. I 1.41 The term "General Plan" shall mean and refer to the City of Downey General Plan, as said General Plan exists as of the Effective Date. 1.42 The term "Grant Amount" means up to One Million Dollars per year ($1,000,000.00) that, upon the satisfaction of certain conditions and requirements related to the development of the Enhanced Project, shall be paid by City to Developer, pursuant to the terms and conditions of this Agreement, commencing an June 30 of thefirst year after w , hich the Required Operations are established and maintained on the Property, and continuing -for nineteen years there -after; provided, however, that the Grant Amount shall not be payable on June 30 following any calendar year during which the Required Operations are not maintained, 1,43 The term "Hotel Development" shall mean 116,000 square -feet of floor area (150 hotel rooms) of development for hotel uses under the Enhanced Project Which shall be operated under one of the brand names set forth in Exhibit "I" or such other brand name approved by City, in its sole and absolute discretion; provided, however, that the City Manager shall have the authority to grant up to a ten percent (10%) variance in the amount of hotel square footage and/or the number of hotel rooms, and in the event such a variance is granted, the resulting development shall constitute "Hotel Development" under this Agreement. 1,44 The term "Hazardous Substances" means and refers to, without limitation, substances defined as "hazardous substances," "hazardous material," "toxic substance," "solid waste," or "pollutant or contaminate" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601, et seq.; the Toxic- Substances Control Act ("TSCA") '(15 U.S.C. Sections 2601, et seq.]; the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; the Resourice Conservation and Recovery Act, 42 U.S.C. Sections 6901, et seq.; those substances listed in the United States Department of Transportation (DOT) Table [49 CFR 172,101 ], or by the EPA, or any successor authority, as hazardous substances [40 CFR Part 302]; and those substances defined as 2698521,7/iMwLsScDMS .7- 028110-0003-14-121inf/Ino "hazardous waste" in Section 25117 of the California Health and Safety Code or, as "hazardous substances" in Section 25316 of the California Health and Safety Code; other Substances, materials, and wastes that are, or become, regulated or classified as hazardous or toxic under federal, state, or local laws or regulations and in the regulations adopted pursuant to said laws, and shall also include, without limitation, asbestos, polychlorinated biphenyl, flammable explosives, radioactive material, petroleum products, and substances designated as a hazardous substance pursuant to 33 U.S.C. Section 1321 or listed pursuant to 33 U.S.C. Section 1317. 1.45 The term "Improvements" shall mean all commercial improvements, landscaping, parking, and other related appurtenances to be constructed, on, under, about or around the Property for the uses authorized by this Agreement. 1,46 The term "Institutional Lender" shall mean any of the following: (a) A bank (State, Federal or foreign), trust company (in its individual or trust capacity), insurance company, credit union, savings bank (State. or Federal), pension, welfare or retirement fund or system, real estate investment trust (or an umbrella partnership or other entity of which a real estate investment trust is the majority owner), Federal or State agency regularly making or guaranteeing mortgage loans, investment bank or a subsidiary of a Fortune 500 company (such as AT&T Capital Corporation or General Electric Capital Corporation); (b) any Person that is a wholly owned subsidiary of or is a combination of any one or more of the Persons described in "(a)" of this Section. 1.47 [RESERVED] 1,49 [RESERVED] 1.50 The term "Large Format Retail Development" shall mean at least a total of 275,000 square feet of floor area of retail development spread over at least two retail establishments, each of which comprises at least 90,000 square feet of floor area, which shall be constructed if Developer makes the election under Section 6.1 to build the Enhanced Project. 1.51 The term "Legal Costs" shall mean, for any Person, all actual and reasonable costs and expenses such Person incurs in any legal proceeding (or other matter for which such Person is entitled to be reimbursed for its Legal Costs), including reasonable attorneys' fees, court costs and expenses, including in or as a result of any: (a) Bankruptcy Proceeding; (b) litigation between tile Parties; (c) negotiating or documenting any agreement with a third party requested by the other Party; (d) requirement or request that such Person or its employees act as a witness in any proceeding regarding this Agreement or the other Party; and (e) review or approval that the other Party requests of such Person. All references to Legal Costs shall include the salaries, benefits and costs of in-house or contract general counsel to City or Developer, respectively, and the lawyers employed in the office of such general counsel who provide legal services regarding a particular matter, adjusted to or billed at an hourly rate and multiplied by the time spent on such matter rounded to increments of one-tenth of an hour, in addition to Legal Costs of outside counsel retained by City or Developer, respectively, for such matter. 2698521,7AManageM 028110.000213-14-12AM110a 1.52 The term "Maintenance Deficiency" shall mean an occurrence of an adverse condition on any area of the Property that is subject to public view in contravention of the general maintenance standard described in Section 5.6.1, below. 1.53 The term "Maximum Fee Sharing Amount" shall mean three million eight hundred thousand dollars ($3,800,000). 1.54 The term "MOV means that Memorandum of Agreement by and among National Aeronautics and Space Administration, the General Services Administration, the California State Historic Preservation Officer and the City of Downey. 1.55 The term "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a portion thereof or interest therein, is pledged as security, and contracted for in good faith and for fair value. 1.56 The term "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage, or any successor or assignee of any such Mortgagee. 1.57 The term "Municipal Code" shall -mean and refer to the City of Downey Municipal Code, as the Municipal Code exists as of the Effective Date. 1.59 The term "Non -Defaulting Party" shall have the meaning set forth in Section 9.1, below. 1.60 The term "Office Development" shall mean 300,000 square feet of floor area of development for office uses. 1.61 The term "Operating Period" shall mean the period commencing upon the Operation Period Commencement Date and ending on the twentieth (20' anniversary thereof 1.62 The term "Operation Period Commencement Date" shall mean and refer to the date on which the Required Operations are established. 1.63 The term "Parties" shall mean Developer and City, and their respective successors and assigns. 1.64 The term "Person" shall mean any �association, corporation, government, individual, joint venture, joint-stock company, limited liability company, partnership, trust, unincorporated organization or other entity of any kind. 1.65 The term "Political Reform Act" shall, mean Government Code section 18000 el seq, 1.66 The term "Property" shall mean the Developer Owned Property and the Developer Leased Property, as jointly depicted on Exhibit "E." 2698521.7/iMamSeDM5 028110-000213-14-12MIAac -9- 1.67 The term "Remaining Commercial Development" shall mean all retail, commercial, restaurant development on the Property other than (i) the Large Format Retail Development, and (ii) the Theater Development. 1.68 The term "Required Operations" shall mean and refer to operations conducted or caused to be conducted by Developer on the Property that includes at least the opening for sales to the public of 1001/o of the Large Format Retail Development. As part of the Required Operations, all sales of taxable goods shall be subject to any and all sales and use taxes under the laws of. California, with the City designated as the point of sale for any and all such sales subject to California sales and use taxes. 1.69. The term "Sales Tax Revenues" shall mean shall mean the total sales taxes under the laws of California during a Compliance Year from sales on the Property that have the City and the Property designated as the point of sale. 1.70 The term "Specific Plan" shall mean and refer to the Amended Downey Landing Specific Plan, as it exists as of the Effective Date. 1.71 The term "Term" shall mean the period of time during which this Agreement shall be in effect and bind the Parties and their respective successors and assigns, as set forth in Section 2.1 of this Agreement; provided, however, that certain of the obligations described in this Agreement shall be in effect and bind the Parties and their respective successors and assigns for in perpetuity, as more particularly described in Sections 2.2. 1.72 The term "Theater Development" shall mean 65,000 square feet of development for one or more theater uses. 1.73 The term "Transfer" shall mean with respect to any property, right or obligation any of the following, whether by operation of law or otherwise, whether voluntary or involuntary, and whether direct or indirect; (1) any assignment, conveyance, grant, hypothecation, mortgage, pledge, sale, or other transfer, whether direct or indirect, of all or any part of such property, right or obligation, or of any legal, beneficial, or equitable interest or estate in such property, right or obligation or any part of it (including the grant of any easement, lien, or other encumbrance); Qi) any conversion, exchange, issuance, modification, reallocation, sale, or other transfer of any direct or indirect Equity Interest(s) in the owner of such property, right or obligation by the holders of such .Equity Interest(s); (iii) any transaction described in "(U)" of this Section affecting any Equity Interests) or any other interest in such property, right or obligation or in any such owner (or in any other direct or indirect owner at any higher tier of ownership) through any manner or means whatsoever; or (iv) any transaction that is in substance equivalent to any of the foregoing. A transaction affecting Equity Interests, as referred to in clauses "(i)" through "(iv)" of. this Section shall be deemed a Transfer by Developer even though Developer is not technically the transferor. A "Transfer" shall not, however, include any of the following (provided that the other Party to this Agreement has received notice of such occurrence) relating to any Equity Interest: (i) A mere change in form of ownership with no material change in beneficial ownership and constitutes a tax-free transaction under Federal income tax law and the State real estate transfer tax; (fl) A conveyance to member(s) of the immediate family(ies) of the 2698521.7/iManageDMS -1®� 02 8110-0002!3.14-121JTMAn transferor(s) or trusts for their benefit; or (iii) a conveyance to any Person that, as of the Effective Date, holds an Equity Interest in the entity whose Equity Interest is being transferred. 1.74 The term "Zoning Code" shall rnean and refer to the City of Downey Zoning Code, as said Zoning Code exists as of the Effective Date of this Agreement, and as it may further be amended by City from time. 2.1,1 Term without E-.ohanced Proiect F.lection. Subject to Section 2,2, if Developer does not make the election authorized by Section 6.1 within the time required by Section 6. 1, the Term shall commence on the Effective Date and shall continue thereafter for a period of seven (7) years froin and after the F.ffective Date, unless this agreement is terminated, Modified, or extended by circumstances set fiarth in this Agreement or by mutual written consent of the Parties. 2.1.2 Terni with 131ilianGed Proiect Plection. Subject to Section2.2, if Developer makes the election audiorized by Section 6.1 within the time requiredby Section 6.1, the Term shall commence on the Effective Date and shall continue thereafter for a period of twenty-five (25) years from and after the EfTective Date, unless this Agreement is terminated, wo9if red, Rr exte-tcled bv circuucstances set rorth iT this Aareernent or bv rrutual wril.en urrse-it MR117461MIMM 2.2 Provisions SurviviiioLpiral ion ofTerm, The provisions, rights, and obligations set forth in, Section 4.4,5 shall remain effective and binding on City and Developer (arid/or its successors) in interest) until the expiration of the time periods set forth in Section 4.4,5. The 0 provisions, rights, arid obligations set forth in. Article 8 shall remain effeciive and binding on City arid 0 Developer (and/or its successor(i) in inter -esl) until the expiration of the time periods set ... forth in Article 8, The provisions, rights, and obligations set Forth in Section 12.4 shall remain effective and binding on City and Developer (arid/or its successor(s) in interest) until the expiration or earlier termination of that certain Ground Lease By and Between City of Downey and Industrial Realty Group, LLC, dated on or about December 4, 2001 The provisions, rights, U- 0 and obligations set forth in Section 13.2 shall remain effective and binding on the City and C Developer (andfor its successor(s) in interest) until the expiration of the statute of limitations on any and every Claim, The provisions, rights, and obligations set forth in Article 5 shall remain effective arid binding on the (JEy and Developer (and/or its successor(s) in interest) for a period of twenty rive (25) years from and after the Effective Date. 3. DEVELOPMENT OF T1 IE PROPE'RTY. 3.1 Rcgt�lat ions, Vested Right to Develon. Other than as expressly set 0 forth herein, during the Term, (lie terins and conditions of development applicable to the Property, including but no( tinnited to the peiiiiined uses of the Property, the density and intensity of use, maximum height and size of proposed buildings, arid provisions for the reservation and and for public ♦pur oses, shall be •those set forth in the Existing Land Use dication of 1, P Regulations. In connection therewith, subject to the terms and conditions of this Agreement, 2698521.7/iManageDM9 028 1 10-0002/3-14-12finMao • L . Developer (and/or its successors) in interest) shall, have the vested right to carry out and develop the Base Project and/or the Enhanced Project on the Property in accordance with the Existing Land Use Regulations. Developer shall also have a vested right to: (i) receive from City all future development approvals for the Base Project and/or the Enhanced Project that are consistent with, and implement, the Existing Land Use Regulations and this Agreement; (H) not to have such approvals for the Base Project and/or the Enhanced Project be conditioned or delayed for reasons inconsistent with the Existing Land Use Regulations or this Agreement; and (W) develop the Base Project and/or the Enhanced Project in a manner consistent with such approvals in accordance with the Existing Land Use Regulations and this Agreement. 3.2 Tentative Subdivision _1vIaj,ss. With respect to applications by Developer for tentative subdivision maps for portions of the Property, City agrees that Developer may file and process vesting tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Government Code and the applicable provisions of City's subdivision ordinance, as the same may be amended from time to time. If final maps are not recorded for an entire parcel before such tentative map(s) would otherwise expire, the term of such tentative map(s) automatically shall be extended until the expiration of the Term or the earlier termination of this Agreement. If final maps are not recorded prior to the expiration of the Term or the earlier termination of this Agreement, but such maps have not otherwise expired tinder State law, the Municipal Code and/or the Zoning Code, then such maps shall remain effective until and to the extent otherwise required under State law, the Municipal Code, and/or the Zoning Code. 3.3 Processing of Apolications and Permits. Upon satisfactory completion by Developer of all required preliminary actions and payment of appropriate City Fees and Charges, if any, subject to the Maximum Fee Sharing Amount City shall proceed to process and check all applications for Base Project and/or the Enhanced Project development and building approvals within the times set forth in the Permit Streamlining Act (Chapter 4.5 (commencing with Section 65920) of Division I of Title 7 of the California Government Code), the Subdivision Map Act (Division 2 (commencing with Section 66410) of Title 7 of the California Government Code), and other applicable provisions of law, as the same may be amended from time to time. 3.4 Other Governmental Permits. Provided that Developer pays the reasonable cost UL of such cooperation, after City has approved the development of any portion of the Property, City shall reasonably cooperate with Developer in its efforts to obtain such additional permits and approvals as may be required by any other governmental or quasi -governmental agencies having jurisdiction over such portion of the Property, which permits and approvals are consistent with City's approval and which are consistent with applicable regulatory requirements. City does . Lanot warrant or represent that any other governmental or quasi -governmental permits or approvals '>- will be granted. 3,5 _Subseguent General Plan AT11CndJT1CntS and Zone Chan2es. In consideration for the benefits provided to Developer under. this Agreement, including without limitation the vesting of the right to develop the Base Project on the Property in accordance with the Existing Land Use Regulations, Developer agrees that City shall have no obligation under this Agreement to grant any subsequent application for any amendments to the General Plan and/or changes to the zone designations for the Property which may be initiated by Developer, Notwithstanding Mp 269852 J.7AMww0MS 028110.0002/3.14-121M,Mae -12- the foregoing, this Section 3.5 shall not limit Developer's statutory, constitutional, or common law right(s) (if any) to seek future legislative approvals from City. 3.6 Tunin,;, of I)evelopingit. City acknowledges that Developer cannot at this time predict the timing or rate at which the Base Project and/or the Enhanced Project will be developed. The timing and rate of development depend on numerous factors such as market demand, interest rates, absorption, completion schedules, and other factors which are not within the control of Developer or City. In Pardee Comiruction Co. v. City of Camarillo (1984) 37 Cal.3d 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance notwithstanding that the construction company and the city had, prior to the adoption of that ordinance, entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property in accordance with the existing zoning. The California Supreme Court reached this result on the basis that the consent judgment failed to address the timing of development. It is the intent of the Parties to avoid the result of the Pardee case by hereby acknowledging and providing in this Agreement that Developer shall have the vested right to develop the Base Project and/or the Enhanced Project on the Property in such order and it such rate and at such tin)'e as Developer deems appropriate within the exercise of Developer's sole subjective busitiess judgment, notwithstanding the adoption of an initiative or any other measure after the Effective Date by City's electorate to the contrary. In addition to and not in limitation of the foregoing, but except as set forth in the following sentence, it is the intent of the Parties that no City moratorium or other similar limitation relating to the rate or timing of the development of the Base Project and/or the Enhanced Project on the Property or any portion thereof, whether adopted by initiative or otherwise, shall apply to the Base Project and/or the Enhanced Project on the Property to the extent such moratorium or other similar limitation is in conflict with the express provisions of this Agreement. Notwithstanding the foregoing, Developer acknowledges and agrees that nothing herein is intended or shall be construed as overriding any of the provisions relating to the timing of and/or conditions to the provision of any benefit to Developer under Section 4.1, Section 4.3, Section 6.1, Section 6.2 and Section 6.3, or any Section that otherwise requires that Developer perform an obligation on or before a specified calendar date and/or event, and/or within a specified period of time. 3.7 Reservations of Authority. Notwithstanding any provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 3.7 shall apply to and govern development of the Base Project and/or the Enhanced Project on the Property: 3.7.1 Consistent Future City [WIM13ti011s. City ordinances, resolutions, regulations, and official policies adopted or approved after the Effective Date pursuant to procedures provided by law which do not conflict with the Existing Land Use Regulations shall apply to and govern dcvlopment of the Property. Any future City regulations which reduce the intensity of the development of the Property below that permitted by the Existing Land Use Regulations, or limit the rate, timing or sequencing of development of the Property in a manner not otherwise provided for in the Existing Land Use Regulations, shall be deemed inconsistent with this Agreement and shall not be applicable to the development of the Property. 2698521.7fiMaaaZqDMS 028110 -X102/3 -14.1N17 IAn -13- 33.2 Lvqri(linp- State and 1ederal L -a -wind Rcmutai.iclni. State and federal laws and regulations which override Developer's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies which are necessary to enable City to comply with. such overriding State and federal laws and regulations; provided, however, that (i) Developer does not waive its right to challenge or contest the validity of any such State, federal, or local laws, regulations or official policies; and (h) in the event that any such State or -federal law or regulation (or City ordinance, resolution, regulation, or official policy -undertaken pursuant thereto) prevents or precludes compliance with one or more provisions of this Agreement, the Parties agree to consider in good faith amending or suspending such provisions of this Agreement as may, be necessary to comply with such State or federal laws, provided that no Party shall be bound to approve any amendment to this Agreement unless' this Agreement is amended in accordance with the procedures applicable to the adoption of development agreements as set forth in the Development Agreement Statute and each Party retains -full discretion with respect thereto. 3.7.3 Public l-lealth and Safety. Any City ordinance, resolution, regulation, or official policy, which is necessary to protect persons on the Property or in the immediate community, or both, from conditions dangerous to their health or safety, or both, notwithstanding that the application of such ordinance, resolution, regulation, or official policy or other similar limitation would result in the impairment of Developer's vested rights under this Agreement. 3.7.4 Uniform Construction Codes. Provisions of the building standards set forth in the Uniform &o—tistruction Codes shall apply to the Property. As used herein, the term "Uniform Construction Codes" collectively refers to the 2010 California Building Codes, the 2010 California Electric Code, the 2010 California Plumbing Code, the 2010 California Mechanical Code, the 2009 Uniform Solar Energy Code, the 2009 Uniform Swimming Pool, Spa and Hot Tub Code, the 2010 Green Plumbing and Mechanical Code, and the 2010 California Fire Code (including amendments thereto by the Downey Fire Department), as modified and amended by official action of City, and any modifications or amendments to any such Code adopted in the future by City. 3.7,5 Police Power. In all respects not provided for in this Agreement, City shall retain full rights to exercise its police power to regulate the development of the Property. Any uses or developments requiring a site plan, tentative tract map, conditional use permit, variance, or other discretionary permit or approval in accordance with the Existing Land Use Regulations shall require a permit or approval pursuant to this Agreement, and, notwithstanding any other provision set forth herein, this Agreement is not intended to vest Developer's right to the issuance of such permit or approval nor to restrict City's exercise of discretion with respect thereto; provided, however, that City acknowledges that it is obligated to process discretionary and ministerial approvals consistent with the Existing Land Use Regulations in accordance with the procedures set forth in the Specific Plan. 3,8 Large I-onnat Retail DTLqlopmer!tr Parkina Easement. During the Term, Developer may request in writing that City enter into negotiations for the provision, at no additional charge to Developer, of a parking casement and/or license agreement to accommodate (5 M up to twenty (20) parking spaces on no more than forty five one hundredths (0.45) acres of W property adjacent to the Property and owned by City. The Parties shall negotiate in good faith to 2 tr 2698121.7/iM000pM -14- 0 Q determine the initial location and other terms and conditions for the provision of the easement or license, with a shared objective of recording the easement or license within ninety (90) days after Developer's request to enter into negotiations. City shall have the right to terminate the easement or license, and/or relocate the parking to a different location owned by City and adjacent to the Property if, in City's reasonable business and/or regulatory judgment, relocation of the parking is necessary to allow for the sale, lease, or other use of any property owned by City. If it elects to terminate or relocate the easement or license, City shall provide at least ninety (90) days advanced notice to Developer. If it elects to relocate the easement or license, Developer shall be responsible for all costs of improving the newly -designated parking area and of removing improvements on the prior -designated parking area. 3.9 SifillatUre E ;ntrance. City and Developer agree to work together in good faith, at no cost to City, toward the design, approval, and development of a signature entrance to the property for the Base Project and/or the Enhanced Project. 3.10 City Infrastructure Improvements. To the extent required by applicable laws, the City shall pay prevailing wages for intersection and groundwater well improvements that are funded (in part or in whole) by Developer as conditions of approval of the Project. City makes no representation or warranty to Developer concerning the legal effect, if any, of the City's construction of such improvements on Developer's rights and responsibilities under state law, federal law, and/or this Agreement. 3.11 Fix;xible Of Soace on Develooer Leascd Priq . Notwithstanding anything to the contrary in this Agreement, Developer shall be permitted to develop the 200,000 square feet or additional office floor area described in Recital E on the Developer Leased Property without further discretionary action by the City, so long as the retail floor area is decreased by 6 200,000 square feet and the total square footage of the proposed development does not exceed 0 X 1,516,000 square feet. 0 LU 4. FEES. CONDITIONS, PUBLIC BEN[�.I`IT& AND AUDIT RIt, H'S. X 4.1 '1'en1porary Fee lZebate. Within thirty (30) days following the end of each calendar quarter during the Term, Developer shall -submit to City written evidence of all City LL Fees and Charges paid during the preceding calendar quarter. Within fifteen (15) days after LL 0 submission of such written evidence, City shall notify Developer of any deficiencies in the r_ evidence submitted by Developer and/or any need for additional information. Developer shall provide such information as is reasonably requested by City in response to any request therefor. 0 Within sixty (60) days after receipt of sufficient documentation Of the Payment of City Fees and N Charges, City shall remit to Developer fifty percent (5011/o) of said City Fees and Charges. The procedures set forth in this Section 41 shall continue until the earlier of (i) the expiration of the Term, and (ii) such time as the total amount of City Fees and Charges rebated to Developer 0 equals the Maximum Fee Sharing Amount. Notwithstanding anything to the contrary in this Agreement, Developer shall only be eligible for the temporary fee rebate provided in this Section M 4.1 if and after it makes the election under Section 6.1 to build the Enhanced Project. O 4.2 Other Fees and Charges. Except as specifically set forth in this Section 4, nothing 2 — - W set forth in this Agreement is intended or shall be construed to firnit or restrict City's authority to tY LU 0281 1"00213-A-MM4/100 U_ impose, on new development within the City, new fees, charges, assessments, or taxes that apply to the development of the Property or that increase any existing fees, charges, assessments, or taxes that apply to the development of the Property, and nothing set forth herein is intended or shall be construed to limit or restrict whatever right Developer might otherwise have to challenge any fee, charge, assessment, or tax either not set forth in this Agreement or not in effect as of the Effective Date. In connection therewith, and subject to the partial rebate of City Fees and Charges provided in Section 4.1, Developer shall timely pay all applicable fees, charges, assessments, and special and general taxes validly imposed in accordance with the Constitution and laws of the State of California. Notwithstanding the foregoing, City represents that it has no current plans to increase any City Fees and Charges. 4.3 [RESERVED] 4.4 Accountinuand Keyiew, 4.4.1 Maintenance of Books and Records. Developer (and/or its successor(s) in interest) shall cause to be prepared and maintained complete, proper and accurate books, accounts and records of all matters or amounts relevant to any calculation of any and all sums owed to or by City under this Agreement, including without limitation the City Fe6 and Charges subject to rebate under Section 4.1, the Grant Amount under Section 6.3.2, and the Fire Station Construction Costs under Section 8 so that said payments can be accurately determined for all relevant periods; provided, however, that City shall not have a right of audit of the temporary fee rebate under Section 4.1 or the Grant Amount under Section 6.3.2 unless developer elects undcr. Section 6.1 to build the Enhanced Project. All such books, accounts and records, including true copies of all revenue and other income statements and tax returns, shall be maintained at Developer's (and/or its successor(s) in interest) address in Southern California,- or at another location reasonably designated by each Development Party in Southern California, for a period of at least five (5) calendar years after the expiration of the year during which the same relates. 4.4.2 Allocation of Cost,s and ExDcnsc—S. In allocating any item of cost, expense, receipts or income to a particular portion of the Property, commercially reasonable real estate accounting principles, consistently applied, shall be utilized. 4.4.3 Non-WaiveLOy City. The acceptance by the City of a payment, or the provision by City to Developer of a payment, required by this Agreement shall be without prejudice to the City's right to examine and to audit Developer's (and/or its successor(s) in interest) books, accounts and records to verify the accuracy of any information supplied by Developer (and/or its successor(s) in interest), and to challenge the accuracy and validity of any such payment(s), Developer (and/or its successor(s) in interest) shall make available to the City and the City's designated representatives for inspection during normal business hours at a business location of Developer (and/or its successor(s) in interest) located in Southern California, or at another location reasonably designated by Developer (and/or its successor(s) in interest) in Southern California, on twenty (20) business days' advance written notice, all of Developer's (and/or its successor(s) in interest's) books, accounts and records relating to the development of the Property (and all matters which are the subject of this Agreement), which books, accounts and records may be copied or extracted in whole or in part by the City or the City's designated representatives, but which will be maintained by City as proprietary and confidential business 2698521.7/iMaUSeWS — 028110-000213-14-MMMIa 16- information to the extent permitted by the California Public Records Act (Government Code section 6250, et seq.), the Ralph M. Brown Act (Government Code section 54950, et seq.) and/or any other, applicable state or federal laws respecting the disclosure of information held by a public agency. 4.4.4 [RESERVED] 4.4.5 Survival of Ai(dit Riv ' his, Notwithstanding any provision of this Agreement to the contrary, all of the City's rights under this Agreement to audit and review any calculations or information submitted thereunder and collect any payments due the City shall survive any expiration of this Agreement as follows: (i) if Developer elects under Section 6.1 to build the Enhanced Project, then any audit right of the temporary fee rebate amounts under Section 4.1 shall continue until two (2) years following the final payment of a rebate amount under Section 4.1; (U) if Developer elects under Section 6.1 to build the Enhanced Project, then any audit right of the Grant Amount under Section 6.3.2 shall continue until two (2) years after the expiration of the Operating Period; (iii) the City's audit right of the Fire Station Construction Costs under Section 8 shall continue until three (3) years after the issuance of a Certificate of Occupancy for the Fire Station. 5. GENEIRAL DEVEI.,OPFIR COVENANTS 5.1 Commencement of' lmorovements and Corn lotion. In accordance with Section 3.6, Developer shall commence and complete, or cause to be commenced and completed, at Developer's sole cost and expense the construction of the Improvements. Developer shall be responsible for all costs of developing the Base Project and/or the Enhanced Project, which includes all costs for construction, alteration, demolition, installation, and repair work, and all costs for pre -development and pre -construction associated therewith, including inspection and land surveying work, for the Improvements. Once construction has commenced, Developer shall use commercially reasonable efforts to proceed to complete or cause to be completed the Base Project and/or the Enhanced Project in a good and workmanlike manner. 5.2 Large Format and Remaining Commercial Myclooment Retailer%. All Large Format Retail Development and Remaining Commercial Development shall be operated under one of the retail brand names set forth in Exhibit "N" or such other retail brand name approved by City, in its sole and absolute discretion. 5.3 [RESERVED], 5.4 Citv Richt to Inspect. Officers, employees, agents and representatives of City shall have the right of reasonable access to the Property, without the payment of charges or fees, during normal construction hours, during the period of construction and operation of the Base Project and/or the Enhanced Project. Developer shall make a representative or Developer available to accompany City representatives onto the Property, at all times, during normal construction hours, upon reasonable advance notice from City. Developer understands and agrees that any such City inspections are for the sole purpose of protecting City's rights under this Agreement, are made solely for City's benefit, that City's inspections may be superficial and general in nature, and are for the purposes of informing City of the progress of the construction 2699521.7/iMpinngeOM3 028110-0002/3-14-12MMn4a -17. of the Base Project and/or the Enhanced Project in a manner consistent with the terms and conditions of this Agreement, and that Developer shall not be entitled to rely on any such inspection(s) as constituting City's approval, satisfaction or acceptance of any materials, workmanship, conformity of the Base Project and/or the Enhanced Project with this Agreement or otherwise, Developer agrees to make its own regular inspections of the work of construction of the Bisc Project and/or the F,rilianced Project to determine that the quality of the improvements and all other requirements of the work of construction of the Base Project alt dlor the Enhanced Project tire being performed in a manner satisfactory to Developer. 5.5 Develover Attendance at City Meetirias. Developer shall ensure that one or more of its employees or consultants who are knowledgeable regarding this Agreement and the construction and installation of the Improvements, such that such person(s) can meaningfully respond to City questions regarding the progress of the Improvements and attend meetings of the City Council and City staff, when reasonably requested to do so by City staff ("Developer Representative"), Developer shall identify the Developer Representative in writing to City within 30 days of the Effective Date, and shall identify any changes in the identity of die Developer Representative in writing to City immediately upon such change. 5.6 Maintenance Covenant. Developer for itself, its successors and assigns, covenants and agrees that: 5.6.1Cieneral Maintenance of Proverty. The areas of the Property that are subject to public view (including all improvements and the existing and future improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good repair and a creat, clean and orderly condition, ordinary wear and tear excepted. If at any time prior to the end of the Term, there is an occurrence of a Maintenance Deficiency, then City may notify Developer in writing of the Maintenance Deficiency. If Developer fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) calendar days of its receipt of notice of the Maintenance Deficiency, City shall have the right to enter the Property, as necessary, and perform all acts necessary to cure the Maintenance Deficiency,or to take any other action at law or in equity that may then be available to City to accomplish tile abatement of the Maintenance Deficiency. Any sum cxl)cjided by City for the abatenient or a Maintenance Deficiency, as authorized by this Section, shall become the debt of Developer, If the amount of the debt is not paid by Developer within thirty (30) calendar days after written demand for payment from City to Developer, City shall have the right to enforce collection by any available legal means including without limitation the withholding of the amount of the debt from any future payments and/or rebates to Developer under this Agreement. 5.6.2 6raffiti. Graffiti, as defined in Government Code Section 38772, that h been applied to the Improvements and that is visible from any public right-of-way adjacent contiguous to the Property shall be removed by Developer by either painting over the evideri, of such vandalism with a paint that has been color -matched to the surfice on which the paint applied, or graffiti may be removed with solvents, detergents or water, as appropriate, If a such graffiti is nor removed within seventy two (72) hours following the time of written noti from City to Developer of the discovery of the graffiti, City shall have the right to enter t Property, as necessary, and remove (lie graffiti, without further notice to Developer, Any su actually expended by City for the, abatement of the graffiti, as authorized by this Section, sh, 2698521.7hManagoOMS rq 028110-000213-14-12MVIbe IN IN iii 51 � I MONTE= , 910 become the debt of Developer. If the amount of the debt is not paid by Developer within thirty (30) calendar days after written demand for payment from City to Developer, City shall have the right to' enforce collection by any available legal means including without limitation the withholding of the amount of the debt from any future annual Grant payment under this Agreement. I 5.6.3 Lien Itialits. The obligations of Developer and its successors and assigns under this Section 5,6 shall be secured by a lien against the Property. Developer hereby grants to the City a security interest in the Property with the power to establish and crif'orce a lien or other encumbrance against the Property, in the manner provided in Civil Code Sections 2924, 2924b and 2924c, to secure the obligations of the Developer and it successors under this Section, including Legal Costs and other costs of the City associated with the abatement of a Maintenance Deficiency or removal of graffiti. This Agreement shall provide notice of such security interest in favor of the City. The City shall reasonably subordinate its lien rights under this Section to security instruments or leases securing bonafide financing from Institutional Lenders to the Developer for construction of the Base ProJect and/or the Enhanced Project, upon written request from Developer and on the condition that Developer reimburse the City all of its costs (including Legal Costs) incurred in providing such subordination. DEVELOPER COVENANTS 11rLATINCY TO THE ENUANCED NkOJECT 6.1 Developer Election To Develop Enhanced Prolect. At any time during the first five (5) years -following the Effective Date, Developer may in its sale and absolute discretion elect to develop the Enhanced Project. Such an election shall be Active upon the provision of notice of such election in writing to the City. 6,2 A"ilicabilitv of Base Proicct -Covellants. if, pursuant to. Section 6.1, Developer elects to develop the Enhanced Project, the following covenants, in addition to those set forth in Article 5 shall remain applicable and binding upon the parties. 6.3 Operatitie Covenant. The provision to City of an election to develop the Enhanced Project pursuant to Section 6.1, shall constitute Developer's binding commitment to be bound by the Operating Covenant contained in this Section 63, which consists of the following terms and conditions: 6.3.1 Conduct of Required OL)cratiou . During the Operating Period, Developer hereby covenants and agrees to diligently endeavor to continuously conduct or cause to be conducted the Required Operations on the Property. The failure of Developer to maintain the Required Operations during any Compliance Year within Operating Period shall, inter alfa, excuse the City from the obligation to make any annual Grant payment pursuant to Section 6.3.2 for that Compliance Year. i 6.3.2 Annual Grant Payment. Subject to Developer's continued compliance under this Agreement, on or before June 30 following each calendar year during Operating Period in which Developer, maintains the Required Operations, City agrees to pay Developer the Grant Amount, provided, however, that City shall, not be required to pay the Grant Amount for 2698521 7/NanageDMS 028110-000213-14-1 VJTMARe -19- any calendar year during which Sales Tax Revenues do not equal a minimum of Two Million Five Hundred Thousand Dollars ($2,500,000). 6.3.3 Certification. Within forty-five (45) days following the end of each Compliance Year for which Developer claims an entitlement to receive an annual Grant Amount, Developer shall file a Certification. 6.3.4 Use Res(rictioji. Throughout the Operating Period, the Property shall include buildings and facilities sufficient to support the Required Operations. 6.3.5 Covenant to Maintain Pr2perly on Tax Rolls. Developer covenants to cause the Property to remain on the County of Los Angeles secured real property tax rolls, continuously, throughout the Term, and to pay all property taxes regarding the Property and all improvements on or to the Property before delinquency, throughout the Term. Notwithstanding the foregoing, the City may, in its sole and absolute discretion, and upon written request of Developer, consent to a use of a portion of the Property that would cause said portion of the Property to be removed from the County of Los Angeles secured real property tax rolls. 6.3.6 No Cotivevance to Tax Lxempt F'Mtity. Developer covenants and agrees that throughout the Term, neither Developer, nor its successors or assigns, shall Transfer all or any portion of the Property to any Person or use all or any portion of the Property for any use, that is partially or wholly exempt from the payment of property taxes or that would cause the exemption of the payment of all or any portion of property taxes otherwise assessable regarding the Property, without the prior written consent of the City, which may be given or withheld in the City's sole and absolute discretion. Developer acknowledges and agrees that the covenants contained in this Section are material to the City and its decision to enter into this Agreement, as the City receives significant financing from property tax revenues from development within the City and that any violation of such covenants will result in financial injury to the City by depriving the City of property tax revenues from all or a portion of the Property or the Base Project and/or the Enhanced Project. Additionally, Developer acknowledges and agrees that the restrictions on Transfers set forth in this Section are reasonable under the circumstances because of the City's interest in property tax revenues from the Property. Notwithstanding the foregoing, Developer and City acknowledge that upon its transfer in accordance with Section 8 of this Agreement, ownership of the Fire Station Site may be held by a tax exempt entity and/or the Fire Station Site may be used for purpose that is exempt from taxation, and such ownership and/or use shall not require any further consents under this Section 6.3.6. Ct 6.3.7 Quplity of Improvements. Developer shall cause the Improvements for the Enhanced Project to be constructed in a first class manner and at an average cost (i.e., cost spread over all Improvements on the Property) of no less than two hundred thirty five dollars ($235.00) per square foot (including design, permitting, and construction costs), adjusted on an annual basis from and after the Effective Date based on the year -over -year change in the 2a California Highway Construction Cost.fndex (or, if the California Highway Construction Cost Index is discontinued, a substantially similar index selected by the City). All improvements will be maintained in a condition substantially identical (or better) than their original condition. All Large Format Retail Development and Remaining Commercial Development shall be operated 2698521.7hMana8eM 0281 W-0002/3-14-121JIMAec -20- I under one of the retail brand names set forth in Exhibit "B" or such other retail brand name approved by City, in its sole and absolute discretion. 6.4 Covenants Running with thi. Land. The provisions of this Article 6 shall be covenants running with the land of the Property during the Operating Period for the benefit of and shall be enforceable solely by the City in its sole discretion. 7. NON -DI SCIZIM)NATION 7.1 Obligation to Refrain frons Discriaiination '. Developer covenants and agrees for itself, its successors, its assigns and all persons claiming under or through them to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, or sublessees of the Property. The foregoing covenants shall run with the land and shall remain in effect during the Extended Term. 7.2 Form ol'Non- discritnination and Non-scqjaLion Clausus. Developer covenants and agrees for itself, its successors, its assigns, and all persons claiming under or through them to the Prop6rty that Developer, such successors and such - assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining to all or any portion of the Property shall contain or be subject to substantially the following non-discrimination or non -segregation covenants; 7.2,1 Ln dj;cds. "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub -tenants, or sub -lessees in the premises herein conveyed. The foregoing covenants shall run with the land." 7.2.2 In leases. "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this [cage is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub -lessees, or sub -tenants in the premises herein leased." 26985211-7/iManugeDIMS 0281 ]0-0002/3-14-1 7JJT&inac -21- 7.2.3 in contracts. "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status. national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or [eased, nor shall the transferee or ally person claiming under or through it, establish or permit any such practice or practices or discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub -lessees, or sub -tenants of the premises herein transferred," The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. FIRE STATION DEDICATION AND l)l_`VELOPlqC 8.1 Election to Require Develooment. of Fire Station Sitc. At any time during the twenty-five years period following the Effective Date, City may request in writing that Developer begin design and ultimately construct the Fire Station on the Fire Station Site. Upon issuing such request in writing, and upon furnishing approved specifications for the development of the Fire Station to Developer, Developer shall be required to diligently coinniciice dcsign and other predevelopment activities, and to diligently proceed to the completion of construction of the Fire Station on the Fire Station Site. City shall reasonably cooperate with Developer and developer shall reasonably cooperate with City in facilitating the construction of the Fire Station on the Fire, Station Site, The Parties completion of construction of the Fire Station on the Fire Station Site shall occur within twenty four (24) months after the City issues its request that Developer begin design and ultimately construct the Fire Station on the Fire Station Site, but said timeline shall be extended based on force majeure events under Section 9.4, and based on unreasonable delays in the issuance of permits or authorizations from governmental authorities. 8.2 Qesian and Construction Costs. Developer shall bear all costs, fees, burdens, and charges associated with the design, permitting, construction and delivery of the Fire Station in a manner that conforms to the specifications furnished by City pursuant to Section 8.1. City shall waive all City Fees and Charges in connection with the development and construction of tile Fire Station, and such waived amount shall not be included in the Maximum Fee Amount. 8.3 Subdivision of Fire Station Site. Within two years following the issuance of a Certificate of Occupancy for the Fire Station, Developer and City shall cause the Fire Station Site to be a separately saleable property through the filing of a condominium map, or such other procedure for rendering the Fire Station Site saleable as the Parties may mutually agree upon. 8.4 Developer's Rental of Fire Station to City, Upon issuance of a Certificate of Occupancy for the Fire Station, City and Developer shall enter into the Fire Station Lease. This Agreement creates a present obligation to enter into the Fire Station Lease. All.material terms and requirements to be included in the Fire Station Lease have been included in this Agreement, and any additional matters included by mutual consent in the Fire Station Lease shall be fully consistent with the terms set forth in this Agreement. 8.5 Lonvevatice of Fire Station and Fire Station Site to City. Upon payment by City to Developer of the Fire Station Construction Costs, which shall be paid by City to Developer as rent over a period of twenty (20) years, the Fire Station Lease shall terminate. Upon the 2698521 Mmanasr!)NIS -22= 0291 I0-0002/3-14-12MTkifiao W, I -1 termination of the Fire Station Lease, Developer shall convey fee title to the Fire Station, the Fire Station Site and all improvements and fixtures thereon to City, and the Fire Station Lease shall be terminated with such termination. 9. Dfal°AI)f,*fRl-Mi'l�I)II�'.S. ANDTFRMINATION. 9.1 Notice aildjU _() )o�lunitv to Cure. Before this Agreement may be terminated or _ action may be taken to obtain judicial relief, the Party seeking relief ("Non -Defaulting Party") shall comply with the notice and cure provisions of this Section 9. 1, A Nondeflulting Party in its discretion may elect to declare a default under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach of any other Party ("Defaulting Party") to perform any material duty or obligation of said Defaulting Party in accordance with the terms of this Agreement. However, the Non -Defaulting Party must provide written notice to the Defaulting Party setting forth the nature of the breach or failure and the actions, if any, required by the Nondefaulting Party to cure such breach or failure. The Defaulting Party shall be deemed in "default" of its obligations set forth in this Agreement if the Defaulting Party has failed to take action and cured the default within fifteen (15) days after the date of such notice (for monetary defaults), within thirty (30) days after the date of such notice (for non -monetary defaults), or within such lesser time as may be specifically provided in this Agreement. If, however, a non - monetary default cannot be cured within such thirty (30) day period, as long as the Defaulting Party does each of the following, then the Defaulting Party shall not be deemed in breach of this Agreement: (i) notifies the Non -Defaulting Party in writing with a reasonable explanation as to the reasons. the asserted default is not curable within the thirty (30) day period; (0) notifies the Non -Defaulting Party of the Defaulting Party's proposed course of action to cure the default; (M) promptly commences to cure the default within the thirty (30) day period; (iv) makes periodic reports to the Non -Defaulting Party as to the progress of the program of cure; and (v) diligently prosecutes such cure to completion. Notwithstanding the foregoing, the Defaulting Party shall be deemed in default of its obligations set forth in this Agreement if said breach or failure involves the payment of money but the Defaulting Party has failed to completely cure said monetary default within fifteen (J 5) days (or such lesser time as may be specifically provided in this Agreement) after the date of such notice. 9.2 Defitilt lZemedies. Subject to Section 9.3, in the event of a default, the Non - Defaulting Party, at its option, may institute legal action to cure, correct, or remedy such default, enjoin any threatened or attempted violation, enforce the terms of this Agreement by specific performance, or pursue any other legal or equitable remedy. Furthermore, City, in addition to or as an alternative to exercising the remedies set forth in this Section 9.2, in the event of a material default by Developer, may give notice of its intent to terminate or modify this Agreement pursuant to the Development Agreement Statute, in which event the matter shall be scheduled for consideration and review by the City Council in the manner set forth in the Development Agreement Statute. 9.3 Developer's 1:xclusive Re!ned A. The Parties acknowledge that City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement, or the Existing Land Use Regulations, or the application thereof, or any permit or approval. sought by Developer in accordance with the Existing Land Use Regulations. Accordingly, Developer covenants on behalf of itself and its successors and assigns, not to sue 2699521.7/iMPa*OeDZVS Mi io-000213-1442ITTWIw .23. City for damages or monetary relief for any breach of this Agreement or arising out of or connected with any dispute, controversy or issue regarding the application, interpretation or cffect of this Agreement, the Existing Land Use Regulations, or any land use permit or approval sought in connection with the development or use of the Property or any portion thereof, the Parties -iow a_—,wbaq .�n-ti)twtqk4 - - be Developer's sole and exclusive. judicial remedies. Notwithstanding the foregoing, the Parties acknowledge and agree that Developer may seek specific performance of City's monetary obligations under this Agreement, and that such an action for specific performance shall not be construed as an action for damages. 9A Force Maieure. The obligations by any Party hereunder shall not be deemed to be in default where delays or failures to perlbi'm are due to any cause without the raldt and beyond the reasonable control of such Party, including to the extent applicable, the following: war; insurrection; strikes; walk -outs; the unavailability or shortage of labor, material,lor equipment; riots; floods; earthquakes; the discovery and resolution of hazardous waste or significant geologic, hydrologic, archaeological, paleontological, or endangered species problems on the Property; fires; casualties; acts of God-, governmental restrictions imposed or mandated by other governmental entities; with regard to delays of Developer's performance, delays caused by City's failure to act or timely perform its obligations set forth herein; with regard to delays of City's performance, delays caused by Developers failure to act or timely perform its obligations set forth herein; inability to obtain necessary permits or approvals from other governmental entities; enactment of conflicting state or federal statutes or regulations; judicial decisions; or litigation not commenced by such Party. Notwithstanding the foregoing, any delay caused by the failure of City or any agency, division, or office of City to tiniely issue a license, perni,ilt, or approval required pursuant to this Agreement shall not constitute an event of fbi-ce ma,jviireextending the time for City's performance hereunder. If written notice of such delay or impossibility of performance is provided to the other Parties within a reasonable time after the commencement of such delay or condition of impossibility, an extension of time for such cause will be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon by the Parties in writing, or the perfon-nance rendered impossible may be excused in writing by the Party so notified. In no event shall adverse market or financial conditions constitute an event of force majeure extending the time for such Party's performance hereunder. Unless the parties agree in writing to the contrary, in no event shall the Term of this Agreement be extended by an event of force, majeure. 10. ANNUAL Rf,,Vlf.W. 10.1 Timina of Annual Review.. During the Term of this Agreement, at least once during every twelve (12) month period from the Effective Date, after receipt of each annual Certification from Deve er Aill revilyu J�j ggjgg� �j;V juw-ctiz-F 10.2 Standa,rdq for Annual Review. During the Annual Review, Developer shall be required to demonstrate good faith compliance with the terms of this Agreement. V City or its designee finds and determines that Developer has not complied with any of the terms or conditions of this Agreement, then City may declare a default by Developer in accordance with 2698521.7/iMmagoOMS 028110.0002)3.14-12111 U]ge -24- relr_lyq�� Article 9 herein. City may exercise its rights and remedies relating to any such event of default only after the period for curing a default as set forth in Article 9 has expired without cure Of the default. The costs incurred by City in connection with the Annual Review process shall be paid by Developer. 10.3 Certificate of Com ' Oiance. With respect to each year in which City approves Developer's compliance with this Agreement, City shall, upon written request by Developer, provide Developer with a written certificate of good faith compliance within thirty (30) days of City's receipt of Developer's request for same. H. MORTGAGEE MG141S. 11.1 17ticurnbrances oil the PrqpcLiat. The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, from encumbering the Property or any portion thereof or any improvements thereon with any Mortgage securing financing with respect to the construction, development, use, or operation of the Base Project and/or, the Enhanced Project. 11.2 Mort gLaire 11rotectioit. This Agreement shall be superior and senior to the Heil of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof by a Mortgagee (whether pursuant to rnrmlosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement and any such Mortgagee who takes title to the Property or any portion thereof shall be entitled to the benefits arising under this Agreement. 0 X 113 Mor(2,atiee Not Oblig4tpd,. Notwithstanding the provisions of this Article 11, a 0 Mortgagee will not have any obligation or duty pursuant to the terms set forth in this Agreement 0 LLI to perform the obligations of any of Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that (i) the Mortgagee shall have no right to < develop the Property under the Existing Land Use Regulations without fully complying with the 0 terms of this Agreement and (ii) to the extent that any covenant to be performed by Developer is IJ_ a condition to the performance of a covenant by City, the performance thereof shall continue to U_ 0 be a condition precedent to City's performance hereunder. C: M 11.4 Notice of Default to Mori pjg�e:.R to Cure. Each Mortgagee F_ Z0 shall, upon written request to City, be entitled to receive written notice from City of the results of the Annual Review and of any default by Developer of its obligations set forth in this 2 Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure such (L default within fifteen (15) days after receipt of such notice (for monetary defaults), within thirty 0 (30) days after receipt of such notice (for non -monetary defaults) or, if such default can only be U 0 remedied or cured by such Mortgagee upon obtaining possession of the Property, such z Mortgagee shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and to remedy or cure such default within thirty (30) days after obtaining possession, and, except in case of emergency or to protect the public health or safety, City may W not exercise any of its judicial remedies set forth in this Agreement until expiration of such thirty 2698521.7/iMampl)NIS -25- 028110.000213-14.9 2liTWa® (30) day period; provided, however, that in the case of a default which cannot with. diligence be remedied or cured within such thirty (30) day period, the Mortgagee shall have such additional time as is reasonably necessary to remedy or cure such default provided Mortgagee promptly commences to cure the default within the thirty (30) day period and diligently prosecutes such cure to completion. 12. ASSIGNMENT'. 12.1 Right to As§jga, Subject to City's prior written consent, which shall not be unreasonably withheld, Developer shall have the right to assign its rights and obligations under this Agreement in connection with a Transfer of Developer's interest in the Property. 1n the event of any such assignment, the assignee shall be liable for the performance of the assigned obligations of Developer. in determining whether to grant consent to an assignment under this Section, factors, that may be considered by the City include, but tire not limited to, the extent of the assignee's ownership interest in the Property (or any portion thereof), the desire to have the master developer of the Property hold substantially all of the rights under the , grectneiit, the assignee's demonstrated experience in developing and/or operating pro ' iMS of like kind and scale as the Base Project (or the Enhanced Project, if Developer makes the selection atallorized by Section 6.1), the assignee's commitment to develop ,in([ inaiitin the Base Project (or the Enhanced Project, if Developer makes the election authorized by Section 6.1), and the financial ability of the assipice to complete development and/or maintain operation of the Base Project (or the Enhanced Project, if Developer makes the election authorized by Section 6.1). In the event of Transfers to end users such as those who will develop Large Forinat Retail Development or Remaining Commercial Development, if such Transfer(s) is/are approved by the City, such transferee(s) shall inure to the benefits and burdens of this Agreement; provided, however, that such trans-feree(s) shall not receive the benefits of set forth in Section 4.1 and Section 6.3, W cc 12,2 Release thlon Transfer of AgLeernent. Upon the written consent of City to the 0 0 partial or complete assignment of this Agreement (which consent shall not be unreasonably 0: W Withheld) and the express written assumption in a form approved by City of such assigned -J obligations of Developer under this Agreement by the assignee, Developer shall be relieved of its < legal duty to perform the assigned obligations set forth in this Agreement, except to the extent 0 Developer is in default hereunder prior to said transfer. U - LL 0 12.3 As ect toTernis of m Agreeent. Following an assignment or transfer of A�'t'Si Ynee Mg"W any of the rights and interests of Developer set -forth in this Agreement in accordance with M OSections 12.1. and 12.2, the assignee's exercise, use, and enjoyment of the Property shall be Z subject to the terms of this Agreement to the same extent as if the assignee or transferee were 0 Developer. 0 12.4 Release UPon, Transfer of Interest in Leased PNp1M. Upon the written consent f C 0 o4 to the partial or complete transfer of Developer's interest in the Leased Property pursuant 2 to Section 13,01 of that certain Ground Lease By and Between City of Downey and Industrial Realty Group, LLC, dated on or about December 4, 2003 (which consent shall not be F - unreasonably withheld) and the express written assumption in a form approved by City of such assigned obligations of Developer under said Ground Lease by that assignee, Developer shall be LU UJ 0 2698521JfiMw4geDMS cc 029110-000213-14-121TWne �26- 0 C-) relieved of its legal duty to perform the assigned obligations set forth in said Ground Lease, except to the extent Developer is in default thereunder prior to said transfer. 13. INSURANCE AND IND 11TH'. 13.1 Insurance, 13.1,1 Base Proicel Insurance, Developer shall procure and maintain on the Developer Leased Property the insurance required under that certain Ground Lease dated December 4, 2003 between City and Industrial Realty Group, LLC, a Nevada limited liability company. 13.1.2 Enhanced Proicet Insurance. If Developer elects tinder Section 6.1 to build the Enhanced Project, then Developer shall procure and maintain insurance on the Property in the types and amounts required under that certain Ground Lease dated December 4, 2003 between City And Industrial Realty Group, LLC, a Nevada limited liability company. 13,1.3 Insurance Does Not Relieve Liability. Insurance coverage in the minimum amounts set forth in this Agreement shall not be construed to relieve Developer of any liability, whether within, outside, or in excess of such coverage, and regardless or solvency or insolvency of the insurer that issues the coverage; nor shall it preclude City from taking such other actions as are available to it under any other provision of this Agreement or otherwise at law. 13.1-A Default for Failure to Mnintain Insuratic.c. Failure by Developer to maintain all insurance required by this Agreement in effect at all times shall be a default by Developer under this Agreement. City, at its sole option, may exercise any remedy available to it in connection with such default, Additionally, City may purchase any such required insurance coverage and City shall be entitled to immediate payment from Developer for any premiums and associated costs paid by City for such insurance coverage. Any election by City to purchase or not to purchase insurance for Developer's contractor shall not relieve Developer of its obligation to obtain and maintain the insurance coverage required by this Agreement. MINNOMMMMUM 13,11 fieneral Indeniiii!y. Developer agrees to indemnify, protect, defend, and hold harmless the City Parties from and against any and all Claims which may arise, directly or indirectly, from the acts, omissions, or operations of Developer or Developer's agents, contractors, subcontractors, agents, or employees pursuant to this Agreement, but excluding any loss resulting solely from the intentional or active negligence of the City Parties. Notwithstanding the foregoing, City shall have the right to select and retain counsel to defend any such action or actions and Developer shall pay the cost thereof; provided, however, that the Parties agree to attempt in good faith to coordinate and/or consolidate their defense of any Claim that is subject to the indemnification provisions of this Section 13.2. 13.2.2 Prevailine--Yage Indemnity and Notice to Develover of Labor Code Section 1781. In connection with, but without limiting, the foregoing, Developer hereby LU LU expressly acknowledges and agrees that the City is not by this Agreement affirmatively LLJ 0 2698$21.7/iManageDNIS Er 02011040DI/3- W -12/JTtM&c -27- 0 representing, and has not previously affirmatively represented, to the Developer or any contractor(s) of Developer for any construction on or development on or adjacent to the Property, in writing or otherwise, in a call for bids or any agreement or otherwise, that any work to be undertaken on the Property, as may be referred to in this Agreement or construed under this Agreement, is not a "public work," as defined in Section 1720 of the Labor Code or under Davis - Bacon, or under any similar existing or hereinafter enacted law or regulation. The Parties agree that, in connection with the development and construction (as defined by applicable law) of the Base Project (or the Enhanced Project if Developer makes the election authorized by Section 6.1), including, without limitation, any and all public works (as defined by applicable law),. Developer shall bear all risks of payment or non-payment of prevailing wages under California law and/or federal law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or Davis Bacon and/or any other similar law. With respect to the, foregoing, Developer shall be solely responsible, expressly or impliedly and legally and financially, for determining and effectuating compliance with all applicable federal, state and local public works requirements, prevailing wage laws, and labor laws and standards, and City makes no representation, either legally and/or financially, as to the applicability or non - applicability of any federal, state and local laws to the construction of the Base Project and/or the Enhanced Project Without limiting the foregoing, Developer shall indemnify, protect, defend and hold harmless the City and its officers, employees, agents, representatives, and attorneys, with counsel reasonably acceptable to City, from and against "increased costs" as defined in California Labor Code Section 1781 (including City's reasonable attorneys' fees, court and litigation costs, and fees of expert witnesses) in connection with the development or construction (as defined by applicable law) of or on the Property, that results or arises in any way from (1) noncompliance by Developer of the requirement, if and to the extent applicable, to pay federal or state prevailing wages and hire apprentices; or (2) failure by Developer to provide, any required disclosure or 0 identification as required by California Labor Code Sections 1720 et seq. including without J limitation specifically Section 1781, as the same may be amended from time to time. The foregoing indemnity shall survive the expiration or earlier termination of this Agreement, 13.2.3 Environmental Indemnity. Developer agrees, in addition to any other LL indemnity obligations of .Developer to City under this Agreement or any other agreement LL between the Parties and at Developer's sole cost and expense, to indemnify, protect, defend, hold 0 harmless, (with counsel reasonably acceptable to City) the City Parties and each of them, from 0 and against any and all Environmental Losses that may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or, awarded against, City directly or indirectly relating to or arising from any Environmental Matters arising during or as a result of Developer's ownership or use of the Property, but excluding any loss resulting solely from the intentional or active 21" negligence of the City Parties. Notwithstanding the foregoing, City shall have the right to select and retain counsel to defend any such action or actions and Developer shall pay the cost thereof; provided, however, that the Parties agree to attempt in good faith to coordinate and/or 10 consolidate their defense of any Environmental Losses that are subject to the indemnification provisions of this Section 13.2.3. The indemnity provisions set forth in this Agreement shall survive termination of this Agreement until the expiration of the statute of limitations for the applicable Claim. 269M21.7hM&naicDM5 0281 10-0020-14-121MVIO -28- 13.3 ItideiiiiiiricatioiiPt,tice(lures. Wherever this Agreement requires any indemnitor to indemnify any indemnitee-, 13.3.1 lra nit irstc. City shall promptly notify Developer in writing of any Claim. law 411 IF �TCYU cAptusTs kinwAlflr% C06171 Costs) of such cooperation. 13.3.3 Settlenien-1. Any settlement shall require the prior written consent of both City and Developer, which consent shall not be unreasonably withheld. 13.3.4 Qi!Y_Cooqt�ration. City shall reasonably cooperate with Developer's defense,itotivided Deve-tvIer reimburses CiV ftr its ?.ctL1,fl rc.2.s+xAle Tut *f ytrkct exymift (including Legal Costs) of such cooperation, 13.3.5 lusurance Proceeds, Developer's obligations shall be reduced by net insurance proceeds City actually receives for the matter giving rise, to indemnification. 14.1 D_cySlgDer CoveriatittoDecaridthis Af!rectiierit. Developer acknowledges that City is a "public entity" and/or a "public agency" as defined under applicable California law, Therefore, City must satisfy the requirements of certain California statutes relating to the actions of public entities, including, without limitation, CEQA. Also, as a public body, City's action in approving this Agreement, the Specific Plan, Maps, and/or any other current or future action of City in connection with the approval or implementation of the Base Project and/or the Enhanced Project may be subject to proceedings to invalidate. this Agreement or mandamus. Developer assumes the risk of and waives and releases any claims for delays and damages that may result to Developer from any third -party legal actions related to City's approval of this Agreement, the activities contemplated under this Agreement, the Specific Plan, Maps, and/or any other current or future action of City in connection with the approval or implementation of the Base Project and/or the Enhanced Project, even in the event that an error, omission or abuse of discretion by the City is determined to have occurred. If a third party files a legal action regarding City's approval of this Agreement, the pursuit of the activities contemplated by this Agreement, the Specific Plan, Maps, and/or any other current or future action of City in connection with the approval or implementation of the Base Project and/or the Enhanced Project, Developer shall indemnify and defend the City, with legal counsel reasonably selected by the City, against such third -party legal action, and shall pay all of the court costs, attorney fees, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and any expenses of any and all financial or performance obligations resulting from the disposition of the legal action. If. Developer breaches its obligations to defend and indemnify City as detailed in this Section 14.1, City may terminate this Agreement on thirty (30) calendar days' written notice to Developer of City's intent to terminate this Agreement, referencing this Section 14.1, without any further obligation on the part of City to perform the terms of this Agreement. Nothing contained in this Section 14.1 shall be deemed or construed to be an express or implied admission that City is 2608321,71iMpasSI 0281110400M-14420NIAnz -29- i 11,1111 li 4 0 0 15. 11SCELLANL",O1JS. 15.1 Lof_llt)liaticetvitliAL)p)icibleL,aw. Developer shall carry out the construction of the Base Project and/or the Enhanced Project in accordance with all applicable laws, regulations, and rules of Governmental Agencies, including without limitation all applicable federal and state labor standards. 15.2 Covenants, The provisions of this Agreement shall constitute covenants which shall run with the land comprising the Property for the benefit thereof, and the burdens and benefits hereof shall bind and inure to the benefit of each of the Parties hereto and all successors in interest to the Parties hereto. 15.3 Mutual Covenants, The covenants contained in this Agreement are mutual covenants and constitute conditions precedent or concurrent to the subsequent or concurrent performance by the Party benefited by the covenant(s). 15,4 RecordatioiLpf Atl,rect T) ent. This Agreement and any amendment, modification, termination or cancellation of this Agreement shall be recorded against the Property in the official records of the County Recorder by the Clerk of the City Council, within the period required by Section 65868.5 of the Government Code. Developer authorizes the recording of all such documents against the Property, and each and every parcel within the Property, whether preceding, during or after the Extended Term. I 15.5 LQ—)_n,��iv:and nd AccepliLtice. Subject to Article 12, every person who 6 cr_ now or hereafter owns or acquires any right, title, or, interest in or to any portion of the Base 0 Project and/or the Enhanced Project or the Property is and shall be conclusively deemed to have 0 LJJ consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Base Project and/or the Enhanced Project or the Property. LLM6 Successors in Interest, Subject to Section 12.1, the burdens of this Agreement 0 shall be binding upon and the benefits of this Agreement shall inure to all successors in interest C to the Parties. All provisions of this Agreement shall be enforceable as equitable servitudes and M constitute covenants running with the land of the Property. Subject to Section 12.1, each 0 covenant of this Agreement to do or refrain from doing some act regarding development of the Z Property: (i) is for the benefit of and is a burden upon every portion of the Property; (U) runs .0 with every portion of the Property; and (W) is binding upon Developer and each successor in interest to Developer in ownership of the Property or any portion of the Property. 0 15.7 Cilv ManaULImplementalion. City shall implement this Agreement through its 20 City Manager. The City Manager is hereby authorized by City to issue, approvals, interpretations or waivers and enter into certain amendments to this Agreement on behalf of City, to the extent that any such action(s) does/do not materially or substantially change the Improvement or City W increase the monetary obligations of Cit by more than Seventy -Five Thousand Dollars 2 ($75,000) in the aggregate, provided, however, that in the event the Specific Plan allows certain cr LLJ 0 2699521 WiMmagoJIMS Ix 02811 &OOOV3-14- I VJnfAoo -30- 0 0 approvals by the Community Development Director, his designee or the Community Development Department, the procedures in the Specific Plan shall be followed. All other actions shall require the consideration and approval of the City Council, unless expressly provided otherwise by action of the City Council. Nothing in this Section 15.6 shall restrict the submission to the City Council of any matter within the City Manager's authority under this Section 15.6, in the City Manager's sole and absolute discretion, to obtain the City Council's express and specific authorization on such matter. The specific intent of this Section 15.6 is to authorize certain actions on behalf of City by the City Manager, but not to require that such actions be taken by the City Manager, without consideration by the City Council. 15,8 Political Reform Act. The Parties acknowledge that they are each aware of the Political Reform Act. Each Party represents and warrants to the other that it is its full intention to comply with all applicable provisions of the Political Reform Act. 15,9 Survival of - AjuKernent, All of the provisions of this Agreement shall be applicable to any dispute between the Parties arising from this Agreement, whether prior to or following expiration or termination of this Agreement, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a anon -appealable judgment or expiration of all applicable statutory limitations periods -and all terms and conditions of this Agreement relating to dispute, resolution and limitations on damages or remedies Shall survive any expiration or termination of this Agreement. 15.10 Vjifire Avjs:—etnera, Waivers and Amendalclits, This Agreement constitutes the entire understanding and agreement of the Parties and supersedes all previous negotiations, discussions, and agreements among the Parties with respect to all or part of the subject matter hereof. No parole evidence of any prior or other agreement shall be permitted to contradict or vary the terms of this Agreement. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by any other Party, or the failure by a Party to exercise its 0 rights upon the default of the other Party, shall not constitute a waiver of such Party's right to LU insist and demand strict compliance by the other Parties with the terms of this Agreement thereafter. Any amendments or modifications to this Agreement must be in writing, signed by duly authorized representatives of each of the Parties hereto, and recorded in the Official Records of Los Angeles County, California. LL LL 0 15.11 LILiticiptes of hiteraretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have F- both participated substantially in the negotiation, drafting, and revision of this Agreement, with 0 advice from legal and other counsel and advisers of their own selection. A word, term or phrase Z defined in the singular in this Agreement may be used in the plural, and vice versa, all in A accordance with ordinary principles of English grammar, which shall govern all language in this 0- Agreement. The words "include" and "including" in this Agreement shall be construed to be 0 0 followed by the words: "without limitation." Each collective noun in this Agreement shall be A interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The LU word "or" in this Agreement includes the word "and." Every reference to a law, statute, 2698521 7/iManageDIAS 02811 M0026-14-17fiThMae -31- regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 15.12 hicorooration of 1tccitals. The Recitals of fact set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference. 15.13 Section 1-leadilt s and Section and Article References. All section headings and subheadings in this Agreement are inserted for convenience only and shall not be considered in the construction or interpretation of this Agreement. All references to Section numbers shall be construed to include any and all subsections of the referenced Section number. All references to Articles shall be construed to include each and every section and subsection within the referenced Article. 15.14 5:tnaular and Plural. As used in this Agreement, the singular ofanyiword includes the plural. 1.5.15 Calculation cel" Finic Periods, Unless otherwise specified, all references to time periods in this Agreement measured in days shall be to consecutive calendar days, all references to time periods in this Agreement measured in months shall be to consecutive calendar months and all references to time periods in this Agreement measured in years shall be to consecutive calendar, years. Any reference to business days in this Agreement shall mean consecutive business days. 15.16 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. i 615.17 Further Actions and Instruments. Each of the Parties shall cooperate with and CC provide reasonable assistance to the, other Parties to the extent necessary to implement this 0 Agreement. Upon the request of a Party at any time, the other Parties shall promptly execute, 0 LLJ with acknowledgement or affidavit if reasonably required, and file or record such required tr instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. U. 15.18 Severability. If any term, provision, covenant, or condition of this Agreement is LL held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining 0 provisions of this Agreement shall continue in full force and effect, unless and to the extent the rights and obligations of any Party has been materially altered or abridged by such holding. 0 z 15.19 "al Lxoenscs, In any Action proceeding between City and Developer, the A prevailing party in such Action shall recover all of its actual and reasonable costs and expenses >- (whether or not the same would be recoverable pursuant to Code of Civil Procedure (L 0 Section 10335 or Civil Code Section 1717 in the absence of this Agreement), including expert 0 witness fees, attorney's fees, and costs of investigation and preparation prior to the 2 commencement of the Action. However, such recovery shall not exceed the dollar amount of the F- actual costs and expenses of the party from whom such recovery is sought for such same Action, O and such prevailing party shall not recover any costs and expenses in excess of the non - prevailing party's expenses. The right to recover such costs and expenses shall accrue upon 2698521.7hManapOMS 0281 10.00213-14-121MIA19 -32- commencement of the Action, regardless of whether the Action is prosecuted to a final judgment or decision. 15.20 No Third Party l31 ne curies. This Agreement and all of its terms, conditions, and provisions are entered into only for the benefit of the Parties executing this Agreement (and any successors in interest), and not for the benefit of any other individual or entity. In this regard, the owner of any portion of the Property that does not timely enter into and perform this Agreement or a substantially similar agreement with City shall have no benefit from, and shall not be a beneficiary of, any of the provisions of this Agreement. 15.21 RelationshiD of Parties. City and Developer hereby renounce the existence of any form of joint venture or partnership between them and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making City and Developer joint venturers or partners. 15.22 Development as a Private Undertaking. The Parties acknowledge and agree that the development of the Development is a private development. Neither Party is acting as the agent of the other in any respect pursuant to this Agreement and each Party is an independent contracting entity, with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. Other than the relationship between City and Developer with respect to the Developer Leased Property, the only relationship between City and Developer is that of a government entity regulating the development of private property and the owner of such property, 15,23. Ins ectwon of Books and Records. Subject to the limitations set forth in Section 4,41.5, City shall have the right at all reasonable times, at City's sole cost and expense, to inspect the books and records of Developer relating to this Agreement, the Property, the Base Project and/or the Enhanced Project, and any development approvals for the Base Project and/or the Enhanced Project, to the extent relevant to City's rights or obligations under this Agreement, but excluding any proprietary information or attorney-client privileged communications. Developer shall also have the right at all reasonable times, at Developer's sole cost and expense, to inspect the books and records of City relating to this Agreement, the Property, the Base Project and/or the Enhanced Project, and any development approvals for the Base Project and/or the Enhanced Project, to the extent relevant to Developer's rights or obligations under this Agreement, but excluding any proprietary, information, closed -session information or attorney-client privileged co communications. 15.24 Eskjppel Certific4ite. Any Party hereunder may, at any time, deliver written notice to any other Party requesting such Party to certify in writing that, to the best knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Party- (d) this Agreement has not been amended or modified either orally or in writing, or if so Cn amended, identifying the amendments; and (iii) the requesting Party is not in default in the performance of its obligations set forth in this Agreement or, if in default, to describe therein the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and 5 return such certificate within sixty (60) days following the receipt thereof Any third party including a Mortgagee shall be entitled to rely on the Certificate. 2698521.7/Minagel)MS 628110-000213-14-12)MIAae -33- 15.25 A jmlicable Law: Venue. This Agreement shall be construed and enforced in accordance with the internal laws of the State of California. Any action at law or in equity arising under this Agreement or brought by any Party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Los Angeles, State of California or the United States District Court for the Central District of California, Los Angeles Division, and the Parties hereto waive all provisions of law providing for the removal or change of venue to any other court. 15.26 Nond,iahilitj of City Officers and Eniployees. No official, officer, employee, agent or representative of City shall be personally liable to any of Developer or its shareholders, partners, officers, employees, agents, respective, successors and/or assigns for any loss arising out of or connected with this Agreement, the Existing Land Use Regulations, or the development of the Property. 15.27 Nott -Liability of Ueveloper's Officers and Emnlo ccs. No official, officer, employee, agent or representative of Developer shall be personally liable to any of the City Parties for any loss arising out of or Connected with this Agreement, the Existing Land Use Regulations, or the development of the Property, 15.28 Notices. Any notice or communication required hereunder between City and Developer must be in writing and may be given either personally, by registered or certified mail, return receipt requested, or by facsimile transmission. If given by registered or certified mail, the same shall be deemed to have been given and received on the date of actual receipt by the addressee designated hereinbelow as the Party to whom the notice is sent. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. Notices delivered by facsimile transmission shall be deemed to have been given on the first business day following the date of transmission to the Facsimile number. A Party hereto may at any time, by giving ten (10) days' written notice to the other Parties hereto, designate any other address in substitution of the address to, which such notice or communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below; I I' to City: City of Downey City Hall 111 I1 Brookshire Downey, CA 90241 Attn. City Manager Telephone: (562) 904-7284 Telecopy: (562) 923-6388 With a conte: Rutan & Tucker, LLP 611, Anton Blvd., Suite 1400 Costa Mesa, CA 92626 Attn: Jeffrey T. Melching, Esq. Telephone: (714)641-5100 Telecopy: (714) 546-9035 2698521.7/iMmagoDM3 028110-000211-14- 1 VIn-tho -34- to Rcvelomr: Manarino, Realty LLC 15615 Alton Parkway #450 Irvine, CA 92618 Attn: Robert A. Manarino Telephone: (949) 748-7800 Telecopy: (949) 748-7807 With a copy to: Allen Matkins Lock Gamble Mallory & Natsis LLP Three Embareadero Center, 120' Floor San Francisco, CA 9411.1-4074 Attn: Sonia Ransom, Esq. Telephone: (415)837-1515 Telecopy: (415) $37-1516 15.29 * !a�reqqtitat ion as to OwnqLhjip. Developer represents andwarrantsthat Developer is the owner in fee of the Developer Owned Property. 15.30 'Representation as to Ownershir). City represents and warrants that City is the owner in fee of the Developer Leased Property. 15.31 Authoritv to Excaitc. Developer warrants and represents that (i) it is duly organized and existing, (U) it is duly authorized to execute and deliver this Agreement, (iii) by so executing this Agreement, Developer is formally bound to the provisions of this Agreement, (iv) Developer's entering into and performance of its obligations set forth in this Agreement does not violate any provision of any other agreement to which Developer is bound, and (v) there is no existing or threatened litigation or legal proceeding of which Developer is aware which could prevent Developer from entering into or performing its obligations set forth in this Agreement, 15.32 Authority to -Excente. City warrants and represents that (i) it is duly organized and existing, (H) it is duly authorized to execute and deliver this Agreement, (iii) by SO execrating this Agreement, City is formally bound to the provisions of this Agreement, (iv) City's entering into and performance of its obligations set forth in this Agreement does not violate any provision of any other agreement to which City is bound, and (v) there is no existing or threatened litigation or legal proceeding of which City is aware which could prevent City from entering into or performing its obligations set forth in this Agreement. 15.33 Execution of Aucement: Counterparts, This Agreement may be executed by the Parties in counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. This Agreement shall constitute a valid and enforceable agreement between City and Developer. 15.34 Exhibits. This Agreement contains nine (9) exhibits, attached hereto and made a part hereof by this reference. Said exhibits are identified as follows: F- A Legal Description of Developer Owned Property d B Depiction of Developer Owned Property N C Legal Description of Developer Leased Property U.1 2 D Depiction of Developer Leased Property Ir LU a 2698521.7/iManagoDMS 0281 W-000213-14-]UrrWae 35- E Depiction of Property F Fire Station Site Plan G (RESERVED] H Pre -Approved Retail Development Brand Nam6 I Pre -Approved Hotel Development Brand Names [Signatures on next page] 2698521.7/iMmingeM 0281 IO-WO2/3-14-12JJTIvMw -36- . J�q IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the date first written above. CITY OF DO EY, a Charter City By: ?'0R, C 13F'O.S5,mck A17EST: (iv6-y Clerk - APPROVED AS TO FORM; Ate M. Abich Garcia City Attorney F�M'i 5 11, F III '' i ' 11111 IBERIA! 11 11i'll 11 111 120U' 2698521.7/iManagcM 6291 DMIAme -37- PCCP IRG DOWNEY, LLC, By: PCCI LB IRG Downey, LLC, na ' g Member its M5EF�� By: Name: William R. Lindsay Title: AUU10MCCI NIgn3jory IRG DOWNEY, LLC, ��— I&I'Tawl Nma�� By. S.L. Properties, InG,, By - Name: I'Im4m- Lacqfcr- Title: /0 /L4 f ci oc 0 0 uj trU- U- 0 C m 0 Z to IL 0 0 2) O uj 2 Ix LU -38- 0211 I&OOOV3.14-12MMASM 0 0- 11!111 lit 1111 iL STATE OF CALIFORNIA ) ss COUNTY OF LOS ANGELES) Notary Public On _P1(gck ZZ3cl—c- , before me, m,1 L k— keA personally appearedA6 a L''�d '<"Q6'N - ,,proved to me Ni the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ics), and that by his/her/their sigriature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the, instrument. I rnrlifit,mr1my =:NAj'rV CIF PEEPAIRY under th- laws, of the Witness my hand and official seal. 8W `1 te 04 %"' Lfflif3r,-, !a that the is true and cornect, STATE OF CALIFORNIA ) ss; COUNTY OF LOS ANGELES) a tary"'y ublic On before me, personally appeared personally known to me or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ics), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official. seal. ��N&otary Public ILIM, oil 2690521.7/iManisSoM 023110-000213-14-12/TMinc -39- W I I T State of California A County of 105 �&4 49� . 1. 1 On AZ*'before me, Natoo ono 11itto of oto off*W personally appeared Fdr MIT be the person(Wwhose name(,srp islwe subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in hislhedth& authorized capacity (j*, and that by hist it signature(s) on the instrument the person(*, or the entity upon behalf of which the person(a) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESSn ha -i a of i�' seal. Signaturel OPTIONAL Though the information below is not required by low, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: to Ll Individual 0 Corocrate Officer — Title(s): 0 Partner — El Limited El General 0 Attorney in Fact p d 'th.-h L) CJ Trustee here Ln 0 Guardian or Conservator M F- El Other: Signer Is Representing: - - - — - Number of Pages: Signer's game: El Individual 0 Corporate Officer —Title(s): 0 Partner — 0 Limited D General El Attorney in Fact • Trustee • Guardian or Conservator E. Other: Signer Is Representing: OF SIGfVER Q 04 dAUX01MA5167,0MI'M ,KMIA OF; I P-1110107MM MEM Q in, B�261-34 MRJERIMM- - U1 2 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of - L C� Mgacy public before me, itoto 1,wl Momf roid 'nfle of t1to Ofaw personally appeared \&A'00% ?-. Varre(s) I" GABRIE1 L. WILLEY Commission 1830053 n S3 Notary public - California Z Orange County Z q N1 My Comm. Expires Jan 9. 2013 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) Istarel,subscribed to the within Instrument and acknowledged to me that he/she/they executed the same in his/herAheir authorized capaclty(les), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct. WITNESS my hand and official seal. SigNLFgot natu Place Notary Seal Above OPTIdtYva ry Though the Information below is not requfred by law, it may prove valuable to persons retying on the document and could prevent fraudulent removal and reattachment of this form to another document. Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Signer's Name: 0 Individual • Corporate Officer — Title(s), • Partner — El Limited D General • Attorney in Fact allow • Trustee Top of thumb here El Guardian or Conservator 11 Other: Signer Is Representing: Number of Pages: Signer's Name: * Individual * Corporate Officer — Title(s)- [I Partner — [I Limited [I General L1 Attorney in Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: Top of thumb here 02007 National Notary Association - 9350 Do Soto Ave., P.O. Box 2402 - ChaWarth. CA 913132402-wwNallonalNotary.org ItemA5907 Reorder. CalrFal-Firoo I -80D-876-6827 State of California Count of ',�LA�44 before me, On 00- 4znll, o / 11. f 41 Mme end Vrklol oo CKrx personally appeared Norno(s) of slgmts) CIVIL COBE 5 1180 who proved to me on the basis of satisfactory evidence to be the erson(s who s am , is e d� subscribed to In within Sol; a ho�,edoe t Xhin's; ument and ac -howleciged § e that Zelthey executed the same in his r/their authorized c acity s), and that by r I h'eir natUr (s t�e instrument the or VwltL ily upon behalf of which the rsio—n . A it on s acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. I .— Signature: / f v Place Notary Seal Above Spnhmo al Notary Vublft OPTIONAL Though the information below is not required by law, It may prove valuable to parsons relying on the and cool I prevent fraudulent removal and reattachment of this form to another document. Description of Attached -Document Title or Type olkocurnant Document Date: Signer(s) Other Than Named ANw Capacity(les) Claimed by Sigr Signer's Name; 0 Corporate Officer — Title(s): 0 Individual 0 Partner — C3 Limited 0 General 0 Attorney in Fact [I Trustee * Guardian or Conservator * Other: Signer Is Representing: kmber of Pages: - ner*s Name: C) Corpdficer — Title(s): C, Individual of thuroh hore __j Partner — D Limited 11 Genera! Top of thumb here 0 Attorney in Fact El Trustee El Guardian or Conservator El Other: Signer Is Representing: 0 2010 National Notary Assocladon - Natlonal!Notwy.arg - 1 -800 -US NOTARY (1-800-876-6827) 118M 05907 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES) tt _ r L On i ��! , before me, -�. i , persolt:�lly appeared f ' ttiho proved to me on the basis of satisfactory evidence) to be the person(} whose name(As is/ ajre subscribed to the within instrument and acknowledged to me that he/ executed the same in his authorized capacity(im), and that by his signatureW on the instrument the person(s-) or the entity upon behalf of, which the person(,4 acted, executed the instrument. t certify under PENALTY OF PERJJRY under the laws of the Slate of -California that the foregoing is true and correct. Witness my hand and official seal. Notary Public STATE OF CALI I NIA COUNTYOF i On before me, appeared personally known to me (or proved to nye on person(s) whose name(s) is/are subscribed t he he/she/they executed the same in his/her/their signature(s) on the instrument the person(s) or acted, executed the instrument. Witness my hand and official seal. EM 2698521,7AManageDMS 028110-0002!3.14-12JJT hV1ae personally the basis of satisfactory evidence) to be the within instrument and acknowledged to me that thorized capacity(ies), and that by his/her/their entity upon behalf, .of which the person(s) KIM Notary Public I W, 41' 1 P MON, j," &al Descrivtion iflLkyeloper Owned Proijq!x Ell (01 f XN "A" LEGAL DESCWnOff ACQUISWION PARCEL 14 BEGWMG AT A POINT IN THE NORTHERLY LINE OF SAID LOT 2 IN THE NORTHWEST QUARTER OF FRACTIONAL SECTION 10, SAID UNE ALSO BEING THE NORTHERLY LINE OF STEWART AND GRAY ROAD, 00 FEET WIDE, DISTANT THEREON SOUTH 899714' WEST 648.51 FEET FROM THE NORTHEAST CORNER OF SAID LOT 2; THENCE ON A LINE BETWEEN SAID POINT OF BEGINNING AND THE SOUTHWEST CORNER OF THE SOUTHEAST OUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF FRACTIONAL SECTION 10, SOUTH 0013'16° WEST 1011.24 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 69'48'11" WEST 1194.23 FEET TO A POINT IN A LINE THAT IS PARALLEL WfIH AND DISTANT SOUTHEASTERLY 40.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE CEHTERLINE OF LAKEWOOD BOULEVARD, AS SHOWN ON COUNTY SURVEYORS S SERIES MAP NO. 1147, ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAID COUNTY; THENCE SOUTH 3141'36' WEST, ALONG SAID PARALLEL LINE. A DISTANCE OF 1487.27 FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT EASTERLY 40.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE CENTERUNE OF CLARK AVENUE AS SHOWN ON SAID COUNTY SURVEYORS B SERIES MAP NO, 1147; THENCE SOUTH 00°0338" WEST, ALONG LAST SAID PARALLEL LINE, A DISTANCE OF 466.49 FEET; THENCE NORTH 90WOW FAST 858.78 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAYING A RADIUS OF 600.00 FEET, THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18"4842", A DISTANCE OF 107.00 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 8Y.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF SWIX27, A IDISTANCE OF 84.73 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 396.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF MlW. A DISTANCE OF 641.05 FEET. THEM NORTH II '00' FAST 321.02 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVES ESTERLY AND HAVING A RADIUS OF 418.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 1T39OS, A DISTANCE OF 128.78 FEET TO SAID LINE BETWEEN THE POINT OF BEGINNING AND THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF FRACTIONAL SECTION 10; THENCE NORTH 0013'18° EAST, ALONG SAID LINE, A DISTANCE OF 1324.18 FEET TO THE TRUE POUR OF BEG NG. ►• a •. � r , • � • • • ALL AS SHOWN ON EXHIBIT "B' ATTACHED WE=RETO AND MADE A PART HEREOF. W7R . .. ,. SOdN, LS. G1G4 ; C t Nn. 0154 4 F.N. 341-00 0 i 0 4 1:1±1el •0 1 0 1 F.110 I IMAJ 68 1 men IN %Kel I.r rN (Above Space for Recorder's Use Only) FIRST'AMENDMENT TO 'I'll"lZRA L,LINA b 3,Lwd between CITY 0FDOWNEY and 11CCII IRG DOWNEY, I,I,C,,t Dclawme litnited liability-�� as to an undivided 90% hiterest, and MG DOWNEY. LLC, a California hinited liability coqMany, as to an undivided 10% interest This First Amendment to Tierra Luna Development Agreement ("First Amendment") is made and entered into effective as of 2017, by and between the CITY OF DOWNEY, a California charter city, ("City"), PCCP IRG DOWNEY, LLC, a Delaware limite(� liabiliq, comp liability company, as to an undivided 10% interest (collectively, "DEVELOPER"). City ani Developer are collectively referred to herein as the "Parties." A. Whereas, on March 15, 2012, the Parties entered into the Tierra Luna Development Agreement ("Development Agreement"); B. Whereas, the Development Agreement allowed Developer to develop the Property with either the Base Project or the Enhanced Project; C. Whereas, Developer was required by Section 6.1 to make an election in writing during the first five years of the Development Agreement's term if Developer wished to develop the Enhanced Project on the Property; D. Whereas, Developer did not make such an election and therefore Developer now wishes to codify in writing its decision to develop the Base Project on the Property; and E. Whereas, the Parties also wish to amend certain sections of the Development Agreement. 028110-0002/9-14-17/hsr/jtm -1— NOW, THEREFORE, based upon the foregoing Recitals, which are incorporated herein by reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: 1. DEVEI,OPMENT OF THE PROPERTY 1. 1. Developniciit of'ffie flase Proi��I. Developer has elected to carry out and develop the Base Project on the Property in accordance with the Existing Land Use Regulations. As a result, Developer hereby reaffirms that it will comply with the provisions of the Development Agreement that apply to the Base Project. 1.2. Developer Eleetioii to Develop Fiihaiiced llroiect. Developer has not and will not make an election to develop the Enhanced Project on the Property pursuant to Section 6.1 of the Development Agreement. In light of Developer's decision to develop the Base Project, the provisions of Article 6 of the Development Agreement do not and will not apply to the development of the Property. Article 6 of the Development Agreement shall therefore be deleted in its entirety. 1.3. Tenn witli F"ifliaticed Proiect Flection. Section 2.1.2 of the Development Project. 2. GENERAL DEIVELOPER COVENANTS 2.1. tarpe l'oriiiatiiici,Rciiiaitiiiig_C -cial Developinent Retailers. Section 5,2 of the Development Agreement shall be amended and replaced as follows: 3. FIRE STATION DEDICATION AND DEVELOPMENT Mows the City to request in WrIL11% Mat We jr.,aiireioper-71�cr-�-,zgoar-,t--u—o�Lf�iLf-Li�r� Finperty. The City no longer desires to have a Fire Station built on the Property. Article 8 of the Wevelopment Agreement, together with the definitions included in Sections 1.36, 1.37, 1.38 and 1.39, shall therefore be deleted in their entirety. Exhibit F shall also be deleted from the Development Agreement. 4. MISCELLANEOUS 4.1. Notices. Section 15.28 of the Development Agreement shall be amended to replace the Developer and its counsel with the following: 028110-0002/8-14-17thsr/jtm If to I)eVeloner: PCCP IRG Downey, LLC 555 California Street, Suite 3450 San Francisco, California 94104 Attn: Aaron Giovara Telephone: (415) 732-7645 Telecopy: (415) 732-7547 With a eppy to: Allen Matkins Leck Gamble Mallory & Natsis LLP One America Plaza •1111 F — -- .. •11 1 , , ' San Diego, California 92 101 Attn: Heather S. Riley Telephone: (619) 233-1155 Telecopy: (6 19) 233-1158 7 RPMAQ-41 4.3 Countervarts: This First Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the s oast 10-0002/8-14-17/hsr/jtm EN WITNESS WHEREOF, the Parties have executed this First Amendment as of the day and year first above w.-itten. M" CITY OF DOWNEY, a Municipal corporation of the State of Califomia UAIC UIF MKI] PCCP IRG DOWNEY, LLC, its Managing Member By:_ Name, Its: IRG DOWNEY, LLC, a California limited liability compan',� WMUU�� 028110-0002/9-14-17Aisr/jtm -I- A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or ,valid!!y of that document. 1K*1§j6N1WdLGj=• FROM I On August 15. 2017 . before me, Itenav Irene Cardona Mar( otary Public personally appeared John A. Mase who proved to me on the basis of satisfactory I q 4 17-B 60-OWN)l IKLSJ N 10 (;,14 01 � I&FAIM q 11 I certify under PENALTY OF PERJURY under the laws of the State of California that th(i r• g• paragraph is true and correct. UNIT "_ Signature M-171' I'll h'SS-1)T'AEi!E*F, the •. have ex-e-c-uTe-dTfffs-Fir-stAmend-m-e-n-f-a-s-o-fTfFe clay and year first above written. CITY OF DOWNEY, 0 PCCP IRG DOWNEY, LLC, e ce-AM ,ry hm ; 71. Mll Z � I ffl I �lj I �l �l I its Managing Member IRG DOWNEY, LLC, P-195RINJUNWIN 028110-0002/8-14-17/hsr/jtm -1" A notary public or other officer completing this certificate verifies only the idenW of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or valld!!y of that document. �M' ED ME On August 15, 2017 . before me, Rctiav Irene Cardoiia ManLuc�/ Notary Public personally appeared John A. Mase . who proved to me on the basis of satisfactory evidence to be the i erson whose name is subscribed to the within instn)tn W W I 11 0 - -- I IMMMI"i the person or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. KflENAY IdRE%NfCARD06NAWMANRQUECZSignature (Seal) N.t-,,P.blir-Cafifoxnpa LosAngelesCounly Commission 12182550 CMM Wiles Feb 0, 20x1 i►a '\ LOA UNKE WHEREAS, on November 30, 2003, the City of Downey ("City") sold the property now known as the Promenade at Downey shopping center to PCCP IRG Downey, LLC, and IRG Downey, LLC (collectively "Developer'); and, WHEREAS, on March 15, 2012 the City and the Developer entered into a Development Agreement for the Promenade at Downey shopping center, which is attached hereto as Exhibit "A" and incorporated herein by reference; and, WHEREAS, the City and the Developer now wish to amend the terms of the Development Agreement; and, WHEREAS, the Planning Commission held a duly noticed public hearing on August 2, 2017, and after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearing adopted Planning Commission Resolution 17-3028, thereby recommending that the City Council approve an amendment to the Tierra Luna development agreement between the City of Downey, and PCCP IRG Downey, LLC and IRG Downey, LLC.; and, WHEREAS, the City Council held a duly noticed public hearing on August 22, 2017, to fully consider all oral and written testimony and facts and opinions regarding the Amendment to the Development Agreement; and, WHEREAS, the City Council finds, determines and declares the environmental impact of the proposed project has been reviewed and has been found to be in compliance with the California Environmental Quality Act (CEQA) and is categorically exempt from CEQA, pursuant to Guideline Section No. 15301 (Class 1, Existing Facilities); and, WHEREAS, having considered all of the oral and written evidence presented to it at said public hearing, the City Council further finds, determines and declares that: 1. The requested amendment to the Development Agreement is consistent with the City's adopted General Plan. The subject site has a General Plan Land Use Designation of Mixed Use, which is intended to provide a variety of uses (retail, office, restaurant, entertainment) within close proximity to each other. Amending the Development Agreement achieves this goal by allowing the continual growth of the Promenade at Downey shopping center. This amendment will also streamline the review process for new tenants, which is consistent with General Plan Policy 9.4.2, which states, "Streamline the development review process." 2. The requested amendment to the Development Agreement is consistent with the Downey Landing amended Specific Plan. The Development Agreement is for the construction and operation of the Promenade at Downey shopping center. While the proposed change streamlines the review process for new businesses that want to operate in the shopping center, it does not alter the permitted uses. Additionally, no *RDINANCE NO.17-1383 PAGE 3 STATE OF CALIFORNIA COUNTY OF LOS ANGELES) ss: CITY OF DOWNEY I HEREBY CERTIFY that the foregoing Ordinance No. 17-1383 was introduced at a Regular Meeting of the City Council of the City of Downey held on the 22" day of August, 2017, and adopted at a Regular Meeting of the City Council of the City of Downey held on the 12'h day of September, 2017, by the following vote to wit, AYES: Council Members: Pacheco, Saab, Ashton, Mayor Vasquez NOES: Council Member: None. ABSENT: Council Member: None. ABSTAIN: Council Member: Rodriguez I FURTHER CERTIFY that a summary of the foregoing Ordinance No. 17-1383 was published in the Downey Patriot, a newspaper of general circulation in the City of Downey, on August 24, 2017 (after introduction), and on September 14, 2017 (after adoption including the vote thereon). It was also posted in the Regular posting places in the City of Downey on the same dates. AVRL ALICZIA� DUARTE,tMC Interim City Clerk ORDINANCE NO.17-1383 P4,GE 4 RIKS-1:1 ,'1:4,TJi i s • i +'0 ' i'� I7 ESMOT This page is part of your document - 00 NOT DISCARD '4440�&- 0120588430 201204200170027 04/20/12 AT 08:OOAM �tm'riu'tu' 003936047 ff� J .Copy) THIS i FORM IS NOT TO BE DUPUCATED i ri 0 0 OTHER: +0 J .Copy) THIS i FORM IS NOT TO BE DUPUCATED i ri I THIS INSTRUMENT FILED FOR RECORo By FIRST AMERICAN Tint INSURANCE CO, AS AN ACCOMMODATION ONLY. IT HAS NOT SEE14 EXAMINEO AS To ITS EXECUTION OR AS 10 ITS EFFECT UPON'TITLL RECORDING REQUESTED BY AND WHEN RECORDED MAfL TO: CITY OF DOWNEY I I I I I Brookshire Downey, CA 90241 Attn: City Clerk 2698S21.7fiManageDMS 0191 19-0002/3-14-121ITMAae a I��V';�,2Ildf��NlPi�u�ll� 30- (Space Above this Line is for Recorder's Use Only) This Development Agreement is recorded at the request and for the benefit of the City of Downey and is exempt from the payment of a recording fee pursuant to Government Code § 27383. by and between CITY OF DOWNEY and PCCP IRG DOWNEY, LLC, and IRG DOWNEY, LLC, Tr ayZ1111 W l. DEFINITIONS ..................................-'---_-----'----_---.--..-.3 %. TERM .................................................. ................. .... -....... ................... ..... -....... ll 2] Tenn ................................................................................................................... 2.1.1 Term without Enhanced Project Election ............................................. .11 2.1.2 Term with Enhanced Project Election ............................................... -'\( 5.2 Large Format and Remaining Commercial Development Retailers ................ _ 17 680/028110-0002 I DEVELOPMENT OFTHE PROPERTY .... ___ ... -.... ___ .... .... ..... ..... ----...1| \5 3.1 Applicable Regulations; Vested Right tnDevelop ............................................. || ................. .......... ____ ...... -.............. ---.......... ---....... 3.2 Tentative Subdivision Maps ................................................................. ........ .,i2 4'4 Accounting and Review ...................................................................................... l6 33 Processing ofApplications and Permits ......... ....... ___ ................... -----12 l6 - 3/4 Other Governmental Pernnko-...... ___ ........ ............ -....... ___ .......... -'---.|2 0 44.3 Non -Waiver By City ............................................................................... 3.5 Subsequent General Plan Amendments and Zone Changes .... ....... ........... -'\2 4.4.4[RESERVED]._--.—.—...~,_--._.~.~---.._._~_.17 3.8 Timing of Development ....... ...... ............ ......... .___ ........... ............. 13 3.7 Reservations of.................... --....... ...... ___ ..... ........... ___ .~.l3 3.7.1 Consistent Future City Regulations ........................................................ 13 3.72 Overriding State and Federal Laws and Regulations ...................... 14 37.3 Public Health and Qufety-... .......... --'''-_.---^-.—_-.l4 � 3.7.4 TJnifornnConstruction Codes ... ...... ...... ............. ...... ...................... . 14 3J.5 Police Pomer.......................................................................................... \4 3.0 Large Format Retail Development Easement ....................................... |4 ' 19 Signature Eo1ramce.............. ...... ..................... .____ ... ___ ......... -.......... .....l5 3.10 City Infrastructure Improvements ...................... 15 3.11 Flexible Office Space on Developer Leased Property-_...... ...... LIJ 5.2 Large Format and Remaining Commercial Development Retailers ................ _ 17 680/028110-0002 4.1 Temporary Fee Rebate .... ................................................................................... \5 4.2 Other Fees and Charges .-'--_--.------._--.-....-.-.-.---|5 LL4.3 ................. .......... ____ ...... -.............. ---.......... ---....... |6 ~_ 4'4 Accounting and Review ...................................................................................... l6 r_ 4.4[1 Maintenance of Books and Records ......................... ............................. l6 - 4.4.2 Allocation VfCosts and Expenses ------------------.-.l6 0 44.3 Non -Waiver By City ............................................................................... }6 z 4.4.4[RESERVED]._--.—.—...~,_--._.~.~---.._._~_.17 ^ 4.4.5 Survival ufAudit Righ1-..... .............. .......... ...... ........ .---_l7 5.2 Large Format and Remaining Commercial Development Retailers ................ _ 17 680/028110-0002 5.6 Maintenance CnveueoL..... ................. ............... ~.................. ................... ]O 5.6,1 General Maintenance ofProperty ...... ____ .......... --._--......... ....l8 5.6'2 GCaffiCi—_..... ___ ....... ____ ......................... ..---.--............. .. 18 5.63 Lien Rights ............ ... ............................................................................ l9 DEVELOPER COVENANTS RELATING TO THE ENHANCED PROJECT ........... 19 7. ............'—'—.^^^''`^'—~^'^^~^~^'^^^^^'—~`'-21 7.1 Obligation $VRefrain from Discrimination ....................................................... 7.2 Form nfNon-discrimination and Clauses. ...... ___ ..... .—... 2| 7.2.1 %odeeds .................................................................................. '................ 2| 7.2.2 In ............ ____ ...... ..... ..... ~—....... '..... 21 8.1 Election to Require Development of Fire Station Site ...... ................ __ 22 10. ANNUAL REVIEW ....... —............... ......... ____ ... ____ .......... .............. .1—......... 24 10J - Timing mfAnnual Review .................................................................................. 24 10.2 Stan6ucdnror Annual Review ...... .—.�r—_.—.—............. ....... .—.......... ... 24 11. MORTGAGEE RIGHTS ................................................................................................ 25 lll mmtbr ....—_.._-.,----._.—.—,—..—..-25 . __-_'_-__-_ ---�''� 68010281 10-M2 11.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ........................... 25 13. INSURANCE AND INDEMNITY ............................................. ............................ ....27 Compliance with Applicable Law ............. .............. .......... '........ ....... —....... 13.1 Insurance .......... .... ---- ......... ................. ..._..—....... ---- ............ ...... lJ 13.1.1. Base Project Insurance ........... —.—..--...... .............. ................ %7 13J2 Enhanced Project Insurance ............... ..—........... ........ ......... —........ --27 Mutual Covenants .... —...... ................. .—.... —....... —~._................ ....... ....... �30 13.1.3 Insurance Does Not Relieve Liability ..... —.....—.......—......,..-%7 15.4 13,1.4 Default for Failure to Maintain Insurance ................ ...... ....--......... 27 13.2 Indemnities 6vDeveloper ............................ —....--.—............ .... ............ —.27 Constructive Notice and -..... ........... ................. .—.—_—......... ..,3D 13.2.1 General .............................................................. .................. 27 � Prevailing Wage Notice Developer Luhor l3�LUl� 3O � Code Section 1781. ....... ...... .......................................... ...................... 27 13.2.3 Environmental Indemnity ... ..... --- ...... ............... ..... ........... _..~28 15,8 1I3 fn6emuificmtiomProcedures ...................... ............................... _—.....—....29 13.2.1 Prompt Notice ................ ...---......... ..... --- ........ ..—....... --29 Survival of..................... .......... ........ ..—.—....... .~~..... .,...... 133.2 Cooperation ......._.....'.'^~..^~..^...~^.^'~^^~'~~~^'^^''---'29 15'10 13.33 Settlement ...................................................................................... ........ 29 13.3.4 City Cooperation ....... -........ ....—...... ......... ....... ~~........ ....~....29 Principles of Interpretation ............~-.—.~....—...--'-------..3l 15,12 15.1 Compliance with Applicable Law ............. .............. .......... '........ ....... —....... 3& 15.2 Covenants —._.—.—...---....----....—..--.—......._..—..--...'38 15.3 Mutual Covenants .... —...... ................. .—.... —....... —~._................ ....... ....... �30 15.4 Recordation of ~.......... ....... _.-._—..... ....... ................ .... .3O 15.5 Constructive Notice and -..... ........... ................. .—.—_—......... ..,3D 15.0 Successors luInterest .......................................................................................... 3O 15'7 City Manager Implementation ................................ ............. .''--....... -~-3O 15,8 Political Reform Act ................ .............. ............. —........ ....... ...... ........ .....3) 15.9 Survival of..................... .......... ........ ..—.—....... .~~..... .,...... 3l 15'10 Entire Waivers and Amendments ...... .....,......... ................ 3l 15,11 Principles of Interpretation ............~-.—.~....—...--'-------..3l 15,12 Incorporation mfRecitals .................................................................................... 32 15,13 Section Headings and Section and Article References ........................................ 32 15,14 Singular and Plural .............................................................. .... ........................ 32 680/028110-0002 *901 Oki 15.16 Time of Essence ................................................................................................... 32 15.17 Further Actions and Instruments ...................................................... ............. 32 t5.1 8 Severability ........................................ ............................................ ................... 32 15.19 Legal Expenses ................................................................................................... 32 15,20 No Third Party Beneficiaries ....... .................................. ....... .......... A3 15.21 Relationship of Parties ............ ..................... ............................. ................... 33 15.22 Development as a Private Undertaking ............. .......... ..................................... 33 15.24 Estoppel Certificate ............... ............................................................................. 33 15.25 Applicable Law; Venue ...................................................................................... 34 15.26 Non -Liability of City Officers andEmployees ., ............................... I ............... - 34 15.27 Non -Liability of Developer's Officers and Employees ...................................... 34 15.28 Notices .................. _ .......................................................................... �� _... - - __ � 34 15.30 Representation as to Ownership ....... ............... .......... - ....... .... _ ...... __ ... �35 15.31 Authority to Execute ............................................................................................ 35 15.32 Authority to Execute .................... ........ ....... 35 15.33 Execution of Agreement; Counterparts.. ...... ___ ...... 35 15.34 Exhibits .......................... .................................................................................... 35 a cc 0 0 LLJ U. U. 0 C M 0 13- 0 0 toW W 6801028110-0002 2698521.7 a03/14/12 0 0 in This TIE RRA LUNA DEVELOPMENT AGREEMENT ("Agreement") is entered into this 151h day of March, 2012, by and among the CITY OF DOWNEY, a California charter city ("City") and PCCP IRG DOWNEY, LLC, a Delaware limited liability company, as to an undivided 90% interest, and IRG DOWNEY, LLC, a California limited liability company, as to an undivided 10% interest (collectively, "Developer"), City and Developer are collectively referred to herein as the "Parties" and individually as a "Party." mpg"RAW A, To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State. of California adopted the "Development Agreement Statute," Sections 65864, el seq., of the Government Code. The Development Agreement Statute authorizes City to enter into an agreement with any person having a legal or equitable interest in real property and to provide for the development of such property and to establish certain development rights therein. B. Developer owns that certain real property consisting of approximately 58 acres of land area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area, within the City of Downey, County of Los Angeles, State, of California, as more particularly described in tlie legal description attached hereto as Exhibit "A" and depicted on Fxhibit "B" (the "Developer Owned Property"). C. Developer holds a leasehold interest in that certain real property consisting of approximately 20 acres of land area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area, within the City of Downey, County of Los Angeles, State of California, as more particularly described in the legal description attached as 'Exhibit "C" and depicted on Exhibit "D'." (the "Developer Leased Property"). The Developer Owned Property and the Developer Leased Property abut each other. D. The Developer Owned Property and the Developer Leased Property are collectively described as the "Property." The Property is depicted on Exhibit "E,11 E. The Amended Downey Landing Specific Plan ("Specific Plan") allows for the development of the Property with a mixed-use commercial development consisting of up to 1,035,000 square feet of non -theater commercial/retail floor area; an additional 65,000 square feet of commercial/retail floor area for a theater use, 300,000 square feet of office floor area; and 116,000 square feet of hotel floor area (150 hotel moms). The Specific Plan contemplates that, subject to City's approval if placed on the Developer Owner Property, an additional 200,000 square feet of office floor area may be incorporated into the proposed development so long as the retail floor area is decreased by 200,000 square feet and the total square footage of the proposed development does not exceed 1,516,000 square feet. Development of the Property in any manner consistent with the Specific Plan and the remaining Existing Land Use Regulations is hereinafter referred to as the "Base Project." 2698521 WiManagcDMS 028110-000213-14-12JITWIm F. Through this Agreement, the City has committed to provide certain vested rights to Developer in exchange for (i) the development of the Base Project on the Property, and (ii) Developer's provision of certain additional public benefits to City. G. Developer desires to develop the Property in a specific configuration that is consistent with the Specific Plan, consisting of the Large Format Retail Development, the Remaining Commercial Development, the Theater Development, the Office Development, and the Hotel Development. Developer's development of the Property within the parameters set forth in this Recital, and in a manner consistent with the Existing Land Use Regulations, is hereinafter referred to as the "Enhanced Project." H. Through this Agreement, the City has committed to provide certain additional inducements and benefits to Developer in exchange for the development of the Enhanced Project on the Property. 1. This Agreement is intended to be, and shall be construed as, a development agreement within the meaning of the Development Agreement Statute, This Agreement will eliminate uncertainty in planning for and secure the orderly development of the Yro erty, ensure Property, a desirable and functional community environment, provide effective and efficietit development of public facilities, infrastructure, and services appropriate for the development of the Property, assure attainment of the maximum effective utilization of resources within City, and provide other significant public benefits to City and its residents by otherwise achieving the goals and purposes of the Development Agreement Statute. in exchange for these benefits to City, Developer desires to receive the assurance that it may proceed with development of the Property in accordance with the terms and conditions of this Agreement and the Existing Land Use Regulations (as defined below), all as more particularly set forth herein. J. City has determined that the Base Project and, the Enhanced Project are consistent with the goals and policies of the General Plan and imposes appropriate standards and requirements with respect to the development of the Property in order to maintain the overall quality of life and of the environment within City. Prior to its approval of this Agreement, City considered the environmental impacts of the Base Project and the Enhanced Project and completed its environmental review of the Based Project and the Enhanced Project, K. On December 21, 2011, the Downey City Planning Commission ("Planning Commission") held a public hearing on this Agreement, made certain findings and determinations with respect thereto, and recommended to the City Council of the City of Downey ("City Council") that the Agreement be approved. L. On January 10, 2012, the City Council held a public hearing on this Agreement, considered the recommendations of the Planning Commission, and found that this Agreement is consistent with General Plan. In accordance with the Development Agreement Statute and applicable law, on January 24, 2012, the City Council adopted Ordinance No. 05-10 approving this Agreement. 2698321.7/iManagaM 928110.000213-14.I M11-1fiae -2- AGREEMENT Based upon the foregoing Recitals, which are incorporated herein by this reference, and for good and valuable, consideration, the receipt and sufficiency of which is hereby acknowledged, City and Developer hereby agree as follows: MIGM11M The following terms when used in this Agreement shall have the meanings set forth below: 1.1 The term "Action" shall mean any proceeding between City and Developer seeking enforcement of any of the terms and provisions of this Agreement. 1.2 The term "Agreement" shall mean this Development Agreement by and among City and Developer. 1.3 The term "Annual Review" shall have the meaning ascribed in Section 10.1 of this Agreement. 1.4 The term "Bankruptcy Law" shall mean Title 11, United States Code, and any other or successor state or federal statute relating to assignment for the benefit of creditors, appointment of a receiver or trustee, bankruptcy, composition, insolvency, moratorium, reorganization, or similar matters. 1.5 The term "Bankruptcy Proceeding" shall mean any proceeding, whether voluntary or invo I untary, under, any Bankruptcy Law. 1.6 [RESERVED] 1.7 The term "Base Project" shall mean Developer's development of the Property within the parameters set forth in Recital E, and in a manner otherwise consistent with the Existing Land Use Regulations. 1.8 The term "CEQA" shall mean and refer to the California Environmental Quality Act, Public Resources Code Sections 21000, et seq. 1.9 The term "Certificate of Occupancy" shall mean A Certificate of Occupancy as defined in the Uniform Building Code, 2010 Edition, published by the International Conference of Building Officials, as may be amended from time to time. 1.10 The term "Certification" shall mean a written certification provided on or before February 15 of each year during the Term, signed by Developer's managing member (i) certifying its compliance with the operating covenant and all other covenants and restrictions set forth in Article 6 for each Compliance Year for which Developer seeks a Grant (if Developer makes the election authorized by Section 6.1); provided, however, that this portion of the Certification shall not be required unless Developer elects to develop the Enhanced Project tinder 2699521.7/iManageDMS -3- 028 t 10-000213-14-12UM1190 Section 6.1 of this Agreement, and (U) demonstrating Developer's good faith compliance all terms of this Agreement for purposes of conducting the annual review required by Section 10. 1.11 The term "City" shall mean the City of Downey, a California Charter City. 1.12 The term "City Council" shall mean the City Council of the City of Downey. MMUTITUM 1.14 The term "City Fees and Charges" shall mean Development Fees and City Processing Fees, to the extent such fees are collected by and on behalf of City. 1.15 [RESERVED] 1.16 The term "City Parties" shall mean City, City Council, City officers, employees, attorneys and agents. I 1.17 The term "City Processing Fees" shall mean all fees charged by and on behalf of the City in connection with the processing, review, and consideration of applications for development, including any periodic updates thereto to reflect changes in the costs of processing, review, and consideration of applications.. 1.18 The term "Claim" shall mean any claim, loss, cost, damage, expense, liability, lien, action, cause of action (whether in tort, contract, under statute, at law, in equity or otherwise), charge, award, assessment, fine or penalty of any kind (including consultant and expert fees, Legal Costs, and expenses and investigation costs of whatever kind or nature), and any judgment. Without limiting the foregoing, "Claims" include any matter that results or arises in any way from any of the following: (i) the noncompliance by Developer or its contractor with any applicable local, state and/or federal law or regulation, including, without limitation, any applicable federal and/or state labor laws or regulations (including, without limitation, if applicable, the requirement to pay state and/or federal prevailing wages and hire apprentices); (2) the implementation of Labor Code Section 1781 and/or Davis -Bacon, or any other similar law or regulation; and/or (3) failure Developer to provide any required disclosure or identification as required by Labor Code Section 1781 and/or Davis Bacon, as the same may be amended from time to time, or any other similar law or regulation. 1.19 [RESERVED] 1.20 The term "Compliance Year" shall mean and refer to a period of one year. The first Compliance Year commences on the Operation Period Commencement Date and ends on the anniversary of the Operation Period Commencement Date. The second through twentieth Compliance Years follow thereafter. 1.21 The term "Defaulting Party" shall have the meaning set forth in Section 9. 1, 2493521.7/NanageDMS -4, 1.22 The term "Davii-Bacon" shall mean , 40 U.S.C. Section 3141, et seq., and the regulations promulgated thereunder set forth at 29 CFR Part 1, as the same may be amended from time to time, or any other similar law or regulation. 1.23 The term "Developer" shall mean the individual or entity which owns fee title to the Developer Owned Property, or any portion thereof, and holds the leasehold interest in the Developer Leased Property, or any portion thereof, and any permissible successor or assignee to the rights, powers, and responsibilities of said individual or entity hereunder, in accordance with Section 12 of this Agreement. 1.24 The term "Developer Leased Property" shall mean that certain real property that abuts the Developer Owned Property, and consists of approximately twenty (20) acres of land area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area, within the City of Downey, County of Los Angeles, State of California, as more particularly described in the legal description attached as Exhibit "C" and depicted onL�`xhibit I'D." I 1.25 The term "Developer Owned Property" shall mean that certain real property consisting of approximately Fifty eight (58) acres of land area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area, within the City of Downey, County of Los Angeles, State of California, as more particularly described in the legal desuiption attached hereto as Fxhibit "A" and depicted on Exhibit "B" (the "Developer Owned Property"). 1.26 The term "Developer Representative" shall have the meaning set forth in Section 5.5. 1.27 The term "Development Agreement Statute" shall mean Sections 65864 through 65869.5 of the California Government Code, as the same may be amended from time to time. 1.28 The term "Development Fees" shall mean all fees collected by and on behalf of the City that are enacted by the City at any time pursuant to the Mitigation Fee Act Government Code sections 66000 et seq. 1.29 The term "Effective Date" shall mean March 15, 2012. 1.30 The term "Enhanced Project" shall mean Developer's development of the Property within the parameters set forth in Recital G, and in a manner otherwise consistent with the Existing Land Use Regulations. 1.31 The term "Environmental Losses" means any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, attorney fees, disbursements and costs of attorneys, environmental consultants and other experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever that may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded against, City directly or indirectly relating to or arising from any Environmental Matters arising during or from Developer's ownership or use of the Property. 2698521- 7AManageDMS 028110-000213-14-12JI'MIlae 1.32 The term "Environmental Matters" means (ithe presence of Hazardous Substances on, in, under, from or affecting all or any portion or the Property; (ii) the storage, holding, handling, release, threatened release, discharge, generation, leak, abatement, removal or transportation of any Hazardous Substances on, in, under, from or affecting all or any portion of Property; (W) the violation of any law, rule, regulation, judgment, order, permit, license, agreement, covenant, restriction, requirement or the like by Developer , its agents or contractors, relating to or governing in any way Hazardous Substances on, in, under, from or affecting all or any portion of.tile Property; (N) the failure of Developer, its agents or contractors, to properly complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations, covenants and the like in connection with Developer's activities on all or any portion of the Property; (y) the implementation and enforcement by Developer, its agents or contractors of any monitoring, notification or other precautionary measures that may, at any lime, become necessary to protect against the release, potential release or discharge of Hazardous Substances on, in, under, from or affecting all or any portion of the Property; (W) the failure of Developer, its agents or contractors, in compliance with all applicable Environmental Laws, to lawfully remove, contain, transport or dispose of any Hazardous Substances existing, stored or generated on, in, under or from all or any portion of the Property; and (vii) any investigation, inquiry, order, hearing, action or other proceeding by or before any Governmental Agency in connection with any Hazardous Substances on, in, under, from or affecting all or any portion of the Property or the violation of any Environmental Law relating to all or any portion of the Property. 1.33 The term "Existing Land Use Regulations" shall mean the General Plan, the Specific Plan, the MOA (which is part of the Specific Plan) the Zoning Code,! the Municipal Code, Maps, and all other ordinances, resolutions, rules, and regulations of City governing development and use of the Property in effect as of the Effective Date, including without limitation the permitted uses of the Property, the density and intensity of use, maximum height and size of proposed buildings, provisions for the reservation and dedication of land for public purposes, and, subject to the following sentence, construction standards and Specifications. The term "Existing Land Use Regulations" does not include the Uniform Codes pertaining to construction adopted for general application in City. The Specific Plan provides that in the event of a conflict between the provisions of the Specific Plan and the provisions of the Zoning Code, the provisions of the Specific Plan control, 1.34 The term "Equity Interest" shall mean all or any part of any director indirect equity or ownership interest(s) (whether stock, partnership interest, beneficial interest in a trust, membership interest, or other interest of an ownership or equity nature) in any entity at any tier of ownership that directly or indirectly owns or holds any ownership or equity interest in a Person. 1.35 [RESERVED] 1.36 The term "Fire Station" shall mean a minimum of an eight thousand (8,000) square foot portion of Building I that is required to be preserved in place by the MOA, The Fire Station shall be appointed with amenities and facilities that are the functional equivalent of those at a typical fire station headquarters existing at the time of the development of the Fire Station. 26985211/iMmageM 029 (10-000213.14-121JTMA= -6- 1.37 The Term "Fire Station Construction Costs" shall mean an amount not to exceed Four Million Four Hundred Thousand Dollars ($4,400,000), including but not limited to construction costs, soft costs, financing costs and a developer fee of ten percent (10%). 70 '' 1.38 The term "Fire Station Lease" shall mean a lease by Developer to City of the Fire Station and the Fire Station Site upon the following material terms: (1) initial rental rate Linder the Fire Station Lease shall equal five percent (5%) of the Fire Station Construction Costs incurred by Developer in the construction of the Fire Station; and (2) City shall receive rights of access over the Property sufficient to meet the reasonable access and response time needs of the Downey Fire Department, as reasonably determined by the Fire Chief of the Downey Fire Department. 1.39 The term "Fire Station Site" shall mean a site within that portion of the Property comprising approximately 38,000 square feet, together with associated parking, depicted on Exhibit "F." 1.40 The term "Floor Area" shall mean the total area of all floors contained within the exterior walls of all buildings on the Property. 1 1.41 The term "General Plan" shall mean and refer to the City of Downey General Plan, as said General Plan exists as of the Effective Date. 1.42 The term "Grant Amount" means up to One Million Dollars per year ($1,000,000.00) that, upon the satisfaction of certain conditions and requirements related to the development of the Enhanced Project, shall be paid by Qty to Developer, pursuant to the terms and conditions of this Agreement, commencing on June 30 of the first year after w , hich the Ci Required Operations are established and maintained on the Property, and continuing for nineteen Er years thereafter; provided, however, that the Grant Amount shall not be payable on June 30 0 following any calendar year during which the Required Operations are not maintained, 0 LU 1,43 The term "Hotel Development" shall mean 116,000 square feet of floor area (150 hotel rooms) of development for hotel uses under the Enhanced Project Which shall be operated under one of the brand names set forth in Exhibit "I" or such other brand name approved by City, in its sole and absolute discretion; provided, however, that the City Manager shall have the authority to grant up to a ten percent (10%) variance in the amount of hotel square footage and/or the number of hotel rooms, and in the event such a variance is granted, the resulting development shall constitute "Hotel Development" under this Agreement. 0 1.44 The term "Hazardous Substances" means and refers to, without limitation, (0 substances defined as "hazardous substances," "hazardous material," "toxic, substance," "solid 27 waste," or "pollutant or contaminate" in the Comprehensive Environmental Response, 0 Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601, et seq.; the 0 Toxic. Substances Control Act ("TSCA") [15 U.S.C. Sections 2601, et seq.]; the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; the Resourice Conservation and Recovery Act, 42 U.S.C. Sections 6901, et seq.; those substances listed in the United States Department of Transportation (DOT) Table [49 CFR 172.1.01.], or by the EPA, or any successor defined as authority, as hazardous substances [40 CFR Pad 302]; and those substances def LU 2698521.7/dMmgeDMS -7® 0281 [0-0003-14-MMMme "hazardous waste" in Section 25117 of the California Health and Safety Code or, as "hazardous substances" in Section 25316 of the California Health and Safety Code; other Substances, materials, and wastes that are, or become, regulated or classified as hazardous or toxic under federal, state, or local laws or regulations and in the regulations adopted pursuant to said laws, and shall also include, without limitation, asbestos, polychlorinated biphenyl, flammable explosives, radioactive material, petroleum products, and substances designated as a hazardous substance pursuant to 33 U.S.C. Section 1321 or listed pursuant to 33 U.S.C. Section 1317. 1.45 The term "Improvements" shall mean all commercial improvements, landscaping, parking, and other related appurtenances to be constructed on, under, about or around the Property for the uses authorized by this Agreement. 1.46 The term "Institutional Lender" shall mean any of the following: (a) A bank (State, Federal or foreign), trust company (in its individual or trust capacity), insurance company, credit union, savings bank (State or Federal), pension, welfare or retirement fund or system, real estate investment trust (or an umbrella partnership or other entity of which a real estate investmeht trust is the majority owner), Federal or State agency regularly making or guaranteeing mortgage loans, investment bank or a subsidiary of a Fortune 500 company (such as AT&T Capital Corporation or General Electric Capital Corporation); (b) any Person that is a wholly owned subsidiary of or is a combination of any one or more of the Persons described in "(a)" of this Section. 1.47 [RESERVED] 1.48 [RESERVED] 1.49 [RESERVED] 1.50 The term "Large Format Retail Development" shall mean at least a total of 275,000 square feet of floor area of retail development spread over at least two retail establishments, each of which comprises at least 90,000 square feet of floor area, which shall be constructed if Developer makes the election under Section 6.1 to build the Enhanced Project. U_ 1.51 The term "Legal Costs" shall mean, for any Person, all actual and reasonable U_ costs and expenses such Person incurs in any legal proceeding (or other matter for which such 0 Person is entitled to be reimbursed for its Legal Costs), including reasonable attorneys' fees, court costs and expenses, including in or as a result of any: (a) Bankruptcy Proceeding; 0 (b) litigation between the Parties; (c) negotiating or documenting any agreement with a third Z party requested by the other Party; (d) requirement or request that such Person or its employees . D act as a witness in any proceeding regarding this Agreement or the other Party- and (e) review or (L >_ approval that the other Party requests of such Person. All references to Legal Party; shall include 0 the salaries, benefits and costs of in-house or contract general counsel to City or Developer, 0 MO respectively, and the lawyers employed in the office of such general counsel who provide legal services regarding a particular matter, adjusted to or billed at an hourly rate and multiplied by the time spent on such matter rounded to increments of one-tenth of an hour, in addition to Legal Costs of outside counsel retained by City or Developer, respectively, for such matter. rY UJ 2698S21,7AMunaSeDMS 0 a281 I N000213-14-OWTIO/lae 0 1.52 The term "Maintenance Deficiency" shall mean an occurrence, of an adverse condition on any area of the Property that is subject to public view in contravention of the general maintenance standard described in Section 5.6.1, below. 1.53 The term "Maximum Fee Sharing Amount" shall mean three million eight hundred thousand dollars ($3,800,000). 1.54 The term "MOA" means that Memorandum of Agreement by and among National Aeronautics and Space Administration, the General Services Administration, the California State Historic Preservation Officer and the City of Downey. 1.55 The term "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a portion thereof or interest therein, is pledged as security, and contracted for in good faith and forfair value. 1.56 The term "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage, or any successor or assignee of any such Mortgagee, 1.57 The term "Municipal Code" shall -mean and refer to the City of Downey Municipal Code, as the Municipal Code exists as of the Effective Date. 1.58 , [RESERVED]. 1.59 The term "Non -Defaulting Party" shall have the meaning set forth in Section 9.1, below. 1.60 The term "Office Development" shall mean 300,000 square feet of floor area of development for office uses. 1.61 The tcrin "Operating Period" shall mean the period commencing upon the Operation Period Commencement Date and ending on the twentieth (20) anniversary thereof. 1.62 The term "Operation Period Commencement Date" shall mean and refer to the date on which the Required Operations are established. 1.63 The term "Parties" shall mean Developer and City, and their respective successors and assigns. 1.64 The term "Person" shall mean any association, corporation, government, individual, joint venture, joint-stock company, limited liability company, partnership, trust, unincorporated organization or other entity of any kind. 1.65 The term "Political Reform Act" shall mean Government Code section 18000 el seq. 1.66 The term "Property" shall mean the Developer Owned Property and the Developer Leased Property, as jointly depicted on Exhibit "E." 2698521,7fiMma8eDW 429110-000213.14-121JTNIAae -9- 1.67 The term "Remaining Commercial Development" shall mean all retail, commercial, restaurant development on the Property other than (i) the Large Format Retail Development, and (ii) the Theater Development. 1.68 The term "Required Operations" shall mean and refer to operations conducted o; caused to be conducted by Developer on the Property that includes at least the opening for sales to the public of 100% of the Large Format Retail Development. As part of the Required Operations, all sales of taxable goods shall be subject to any and all sales and use taxes under the laws of California, with the City designated as the point of sale for any and all such sales subject to California sales and use taxes. 1.69. The term "Sales Tax Revenues" shall mean shalt mean the total sales taxes under the laws of California during a Compliance Year from sales on the Property that have the City and the Property designated as the point of sale. 1.70 The term "Specific Plan" shall mean and refer to the Amended Dbwney Landing Specific Plan, as it exists as of the Effective Date. 1.71 The term "Term" shall mean the period of time during which this Agreement shall be in effect and bind the Parties and their respective successors and assigns, as set forth in Section 2.1 of this Agreement; provided, however, that certain of the obligations described in this Agreement shall be in effect and bind the Parties and their respective successors and assigns for in perpetuity, as more particularly described in Sections 2.2. 1.72 The term "Theater Development" shall mean 65,000 square feet of development for one or more theater uses. a 1.73 The term "Transfer" shall mean with respect to any property, right or obligation ix 0 any of the following, whether by operation of law or otherwise, whether voluntary or U involuntary, and whether direct or indirect: Q) any assignment, conveyance, grant, LU W hypothecation, mortgage, pledge, sale, or other transfer, whether direct or indirect, of all or any _J part of such property, right or obligation, or of any legal, beneficial, or equitable interest or estate < in such property, right or obligation or any part of it (including the grant of any easement, lien, or LL other encumbrance); (ii) any conversion, exchange, issuance, modification, reallocation, sale, or LL other transfer of any direct or indirect Equity Interest(s) in the owner of such property, right or 0 C obligation by the holders of such Equity Intercst(s); (W) any transaction described in "(U)" of this Section affecting any Equity Interest(s) or any other interest in such property, right or obligation 0 or in any such owner (or in any other direct or indirect owner at any higher tier of ownership) z through any manner or means whatsoever; or (N) any transaction that is in substance equivalent V to any of the foregoing. A. transaction affecting Equity Interests, as referred to in clauses '1(i)" >_ through "(iv)" of this Section shall be deemed a Transfer by Developer even though Developer is CL 0 not technically the transferor. A "Transfer" shall not, however, include any of the following U 9 (provided that the other Party to this Agreement has received notice of such occurrence) relating to any Equity Interest: (i) A mere change in form of ownership with no material change in beneficial ownership and constitutes a tax-free transaction under Federal income tax law and the O State real estate transfer tax; (ii) A conveyance to member(s) of the immediate family(ies) of the 2698521.7/iManageDNIS 402811 N0002/3-14-120TNIAm _10— Will 19'11il �l �lll 111;l l transferor(s) or trusts for their benefit; or (W) a conveyance to any Person that, as of the Effective Date, holds an Equity Interest in the entity whose Equity Interest is being transferred, 1.74 The term "Zoning Code" shall mean and refer to the City of Downey Zoning Code, as said Zoning Code exists as of the Effective Date of this Agreement, and as it may further be amended by City from time. VVIRM 2.1 Term. 2.1.1 Term without Emlianced ProiRet Election, Subject to Section 12, if Developer does not make, the election authorized by Section 6.1 within the time required by Section 6. 1, the Term shall commence on the Effective Date and shal I continue thereafter for a period of seven (7) years from and after the Muctive Date, unless this agreement is terminated, of the Parties. 2.1.2 Term with Enhanced Pro ' icet Election. Subject to Section 2.2, if Developer makes the election authorized by Section 6.1 within the time required ;by Section 6.1, the Term shall commence on the Effective Date and shall continue thereafter for a period of twenty-five (25) years from and after the Effective Date, unless this Agreement is terminated, modified, or extended by circumstances set forth in this Agreement or by mutual written consent of the Parties. 2.2 - Provisions Surviving 1,-,x he provisions, rights, and obligations j)iration of Term. T set forth in, Section 4-4.5 shall remain effective and binding on City and Developer (and/or its successor(s) in interest) until the expiration of the time periods set forth in Section 4.4.5. The O C.) provisions, rights, and obligations set forth in, Article 8 shall remain effective and binding on City and Developer (and/or its successor(s) in interest) until the expiration of the time periods set forth in Article 8. The provisions, rights, and obligations set forth in Section 12.4 shall remain effective and binding on City and Developer (and/or its successor(s) in interest) until the expiration or earlier termination of that certain Ground Lease By and Between City of Downey 16 and Industrial Realty Group, LLC, dated on or about December 4, 2003. The provisions, rights, LL 0 and obligations set forth in Section 13.2 shall rernain effective and binding on the City and r_ Developer (aridlor its successor(s) in interest) until the expiration of the statute of limitations on .M any and every Claim. The provisions, rights, and obligations set forth in Article 5 shall remain 0 effective and binding on the City and Developer (and/or its successor(s) in interest) for a period of twenty five (25) years from and after the Effective Date. DEVELOPMENT 017 TFIE PROPY, 3.1 AppIJ gable- Regqlat ions- Vested Ri6t to Q Other than as expressly set forth herein, during the Term, the tenris and conditions of development applicable to the Property, including but not limited to the permitted uses ofthe Property, the d'ensity and intensity of use, maximum height and size of proposed buildings, and provisions for the reservation arid dedication of land for public purposes, shall be those set forth in the Existing Land Use Regulations. In connection therewith, subject to the terms and conditions of this Agreement, 2699521,71iManugcOMS (1281 10-00213-14-12/JMAn 11 Developer (and/or its successor(s) in interest) shall have the vested right to carry out and develop the Base Project and/or the Enhanced Project on the Property in accordance with the Existing Land Use Regulations. Developer shall also have a vested right to: (i) receive from City all future development approvals for the Base Project and/or the Enhanced Project that are consistent with, and implement, the Existing Land Use Regulations and this Agreement; (H) not to have such approvals for the Base Project and/or the Enhanced Project be conditioned or delayed for reasons inconsistent with the Existing Land Use Regulations or this Agreement; and (W) develop the Base Project and/or the Enhanced Project in a manner consistent with such approvals in accordance with the Existing Land Use Regulations and this Agreement. 3.2 Tentative Subdivision MalLs. With respect to applications by Developer for tentative subdivision maps for portions of the Property, City agrees that Developer may file and process vesting tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Government Code and the, applicable provisions of City's subdivision ordinance, as the same may be amended from time to time. If final maps are not recorded for an entire parcel before such tentative map(s) would otherwise expire, the term of such tentative map(s) automatically shall be extended until the expiration of the Term or the earlier termination of this Agreement. If final maps are not recorded prior to the expiration of the Term or the earlier termination of this Agreement, but such maps have not otherwise expired under State law, the Municipal Code and/or the Zoning Code, then such maps shall remain effective until and to the extent otherwise required under State law, the Municipal Code, and/or the Zoning Code. 3.3 Processing of Applications and Permits. Upon satisfactory completion by Developer of all required preliminary actions and payment of appropriate City Fees and Charges, if any, subject to the Maximum Fee Sharing Amount City shall proceed to process and check all Ci applications for Base Project and/or the Enhanced Project development and building approvals W within the times set forth in the Permit Streamlining Act (Chapter 4.5 (commencing with 0 0 Section 65920) of Division I of Title 7 of the California Government Code), the Subdivision LU Map Act (Division 2 (commencing with Section 66410) of Title 7 of the California Government Code), and other applicable provisions of law, as the same may be amended from time to time. 3.4 Other Governmental Permits. Provided that Developer pays the reasonable cost LL of such cooperation, after City has approved the development of any portion of the Property, City shall reasonably cooperate with Developer in its efforts to obtain such additional permits and approvals as may be required by any other governmental or quasi -governmental agencies having jurisdiction over such portion of the Property, which permits and approvals are consistent with City's approval and which are consistent with applicable regulatory requirements. City does not warrant or represent that any other governmental or quasi -governmental permits or approvals will be granted. 3.5 Subsequent General Plan Amendments and Zone Changes. In consideration for W the benefits provided to Developer under this Agreement, including without limitation the vesting of the right to develop the Base Project on the Property in accordance with the Existing Land Use Regulations, Developer agrees that City shall have no obligation under this Agreement to grant any subsequent application for any amendments to the General Plan and/or changes to the zone designations for the Property which may be initiated by Developer. Notwithstanding 028110.000213-14-12UMV110 -12- the foregoing, this Section 3.5 shall not limit Developer's statutory, constitutional, or common law right(s) (if any) to seek future legislative approvals from City, 3.6 Timing of Development. City acknowledges that Developer cannot at this time predict the timing or rate at which the Base Project and/or the Enhanced Project will be developed. The timing and rate of development depend on numerous factors such as market demand, interest rates, absorption, completion schedules, and other factors which are not within the control of Developer or City. In Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d. 465, the California Supreme Court held that a construction company was not exempt from a city's growth control ordinance notwithstanding that the construction company and the city had, prior to the adoption of that ordinance, entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop its property in accordance with the existing zoning. The California Supreme Court reached this result on the basis that the consent judgment failed to address the, timing of development. It is the intent of the Parties to avoid the result of the Pardee case by hereby acknowledging and providing in this Agreement that Developer shall have the vested right to develop the Base Project and/or the Enhanced Project on the Property in such order and at such rate and at such tinnc as Developer deems appropriate within the exercise of Developer's sole subjective busifiess judgment, notwithstanding the adoption of an initiative or any other measure after the Effective Date by City's electorate to the, contrary. In addition to and not in limitation of the foregoing, but except as set forth in the following sentence, it is the intent of the Parties that no City moratorium or other similar limitation relating to the rate or timing of the development of the Base Project and/or the Enhanced Project on the Property or any portion thereof, whether adopted by initiative, or otherwise, shall apply to the Base Project and/or the Enhanced Project on the Property to the extent such moratorium or other similar limitation is in conflict with the express provisions of this Agreement. Notwithstanding the foregoing, Developer acknowledges and agrees that nothing herein is intended or shall be construed as overriding any of the provisions relating to the timing of and/or conditions to the provision of any benefit to Developer under Section 4.1, Section 4.3, Section 6.1, Section 6.2 and Section 6.3, or any Section that otherwise requires that Developer perform an obligation on or before a specified calendar date and/or event, and/or within a specified period of time. 3.7 Reservations of Authority. Notwithstanding any provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 3.7 shall apply to and govern development of the Base Project and/or the Enhanced Project on the Property: 3.7.1 Consistent Future City RegUlatiffli . City ordinances, resolutions, regulations, and official policies adopted or approved after the Effective Date pursuant to procedures provided by law which do not conflict with the Existing Land Use Regulations shall apply to and govern deve'lopment of the Property. Any future City regulations which reduce the intensity of the development of the Property below that permitted by the Existing Land Use Regulations, or limit the rate, timing or sequencing of development of the Property in a manner not otherwise provided for in the Existing Land Use Regulations, shall be deemed inconsistent with this Agreement and shall not be applicable to the development of the Property. 2698521.7AManag;1)MS 0281 10-00OV344-12/inillmn -13- , iiiiq� 11 ii;111-11ir��'� 111ii 3.7.2 Overriding State and Federal Laws and State and federal laws and regulations which override Developer's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies which are necessary to enable City to comply with such overriding State and federal laws and regulations; provided, however, that (i) Developer does not waive its right to challenge or contest the validity of any such State, federal, or local laws, regulations or official policies; and (it) in the event that any such State or federal law or regulation (or City ordinance, resolution, regulation, or official policy undertaken pursuant thereto) prevents or precludes compliance with one or more provisions of this Agreement, the Parties agree to consider in good faith amending or suspending such provisions of this Agreement as may, be necessary to comply with such State or federal laws, provided that no Party shalt be bound to approve any amendment to this Agreement unless this Agreement is amended in accordance with the procedures applicable to the adoption of development agreements as set forth in the Development Agreement Statute and each Party retains full discretion with respect thereto. 3.7.3 Public 1-leal,th_and Sal*etv. Any City ordinance, resolution, regulation, or official policy, which is necessary to protect persons on the Property or in the immediate community, or both, from conditions dangerous to their health or safety, or both, notwithstanding that the application of such ordinance, resolution, regulation, or official policy or other similar limitation would result in the impairment of Developer's vested rights under this Agreement. 3.7.4 Uniform Construction Codes. Provisions of the building standards set forth in the Uniform Construction Codes shall apply to the Property. As used herein, the term "Uniform Construction Codes" collectively refers to the 2010 California Building Codes, the 2010 California Electric Code, the 2010 California Plumbing Code, the 2010 California Mechanical Code, the 2009 Uniform Solar Energy Code, the 2009 Uniform Swimming Pool, Spa and Hot Tub Code, the 2010 Green Plumbing and Mechanical Code, and the 2010 California Fire Code (including amendments thereto by the Downey Fire Department), as modified and amended by official action of City, and any modifications or amendments to any such Code adopted in the future by City. 3.7,5 Police Power, In all respects not provided for in this Agreement, City shall retain full rights to exercise its police power to regulate the development of the Property. Any uses or developments requiring a site plan, tentative tract map, conditional use permit, variance, or other discretionary permit or approval in accordance with the Existing Land Use Regulations shall require a permit or approval pursuant to this Agreement, and, notwithstanding any other provision set forth herein, this Agreement is not intended to vest Developer's right to the issuance of such permit or approval nor to restrict City's exercise of discretion with respect thereto; provided, however, that City acknowledges that it is obligated to process discretionary and ministerial approvals consistent with the Existing Land Use Regulations in accordance with the procedures set forth in the Specific Plan. 3.8 Large Format Retail Develoriment Parkin Easement. During the Term, Developer may request in writing that City enter into negotiations for the provision, at no additional charge to Developer, of a parking casement and/or license agreement to accommodate up to twenty (20) parking spaces on no more than forty five one hundredths (0.45) acres of property adjacent to the Property and owned by City. The Parties shall negotiate i.n good faith to 2693521.7/iMonageM 018 110-0002)3-14- 1 VJTIM/Ioe -14- determine the initial location and other terms and conditions for the provision of the easement or license, with a shared objective of recording the easement or license, within ninety (90) days after Developer's request to enter into negotiations. City shall have the right to terminate the easement or license, and/or relocate the parking to a different location owned by City and adjacent to the Property if, in City's reasonable business and/or regulatory judgment, relocation of the parking is necessary to allow for the sale, lease, or other use of any property owned by City. If it elects to terminate or relocate the easement or licens ' e, City shall provide at least ninety (90) days advanced notice to Developer. If it elects to relocate the easement or license, Developer shall be responsible for all costs of improving the newly -designated parking area and of removing improvements on the prior -designated parking area. 3.9 5igivature Entrance. City and Developer agree to work together in good faith, at no cost to City, toward the design, approval, and development of a signature entrance to the property for the Base Project and/or the Enhanced Project. 3.10 City Infrastructure IrnprovemeriLs. To the extent required by applicable laws, the City shall pay prevailing wages for intersection and groundwater well improvements that are funded (in part or in whole) by Developer as conditions of approval of the Project. City makes no representation or warranty to Developer concerning the legal effect, if any, of the City's construction of such improvements on Developer's rights and responsibilities under state law, federal law, and/or this Agreement. 3.11 Flexible Of Space on Developer Lemjqd 11c. Notwithstanding anything to the contrary in this Agreement, Developer shall be permitted to develop the 200,000 square feet of additional office floor area described in Recital E on the Developer Leased Property without further discretionary action by the City, so long as the retail floor area is decreased by 200,000 square feet and the total square footage of the proposed development does not exceed 1,516,000 square feet. .FEES, CONDITIONS, PUBLIC BENEHrs, AND AUDITRIGZITS. 4.1 Teninorary Fee Rebate, Within thirty (30) days following the end of each calendar quarter during the Term, Developer shall submit to City written evidence of all City Fees and Charges paid during the preceding calendar quarter. Within fifteen (15) days after submission of such written evidence, City shall notify Developer of any deficiencies in the evidence submitted by Developer and/or any need for additional information. Developer shall provide such information as is reasonably requested by City in response to any request therefor. Within sixty (60) days after receipt of sufficient documentation of the payment of City Fees and Charges, City shall remit to Developer fifty percent (500/9) of said City Fees and Charges. The procedures set forth in this Section U shall continue until the earlier of (i) the expiration of the Term, and (U) such time as the total amount of City Fees and Charges rebated to Developer equals the Maximum Fee Sharing Amount. Notwithstanding anything to the contrary in this Agreement, Developer shall only be eligible for the temporary fee rebate provided in this Section 4.1 if and after it makes the election under Section 6.1 to build the Enhanced Project. 4.2 Other Fees and Charggs.. Except as specifically set forth in this Section 4, nothing set forth in this Agreement is intended or shall be construed to limit or restrict City's authority to 2699521,7/iManASeDMS 0291 10-002/3-14-MMOic impose, on new development within the City, new fees, charges, assessments, or taxes that apply to the development of the Property or that increase any existing fees, charges, assessments, or taxes that apply to the development of the Property, and nothing set forth herein is intended or shall be construed to limit or restrict whatever right Developer might otherwise have to challenge any fee, charge, assessment, or tax either not set forth in this Agreement or not in effect as of the Effective Date. In connection therewith, and subject to the partial rebate of City Fees and Charges provided in Section 4.1, Developer shall timely pay all applicable fees, charges, assessments, and special and genera[ taxes validly imposed in accordance with the Constitution and laws of the State of California. Notwithstanding the foregoing, City represents that it has no current plans to increase any City Fees and Charges. 4.3 [RESERVED] 4.4 Accountinp and Revicw. 4.4.1 Maintenance of Books and Records. Developer (and/or its successor(s) in interest) shall cause to be prepared and maintained complete, proper and accurate books, accounts and records of all matters or amounts; relevant to any calculation of any and all sums owed to or by City under this Agreement, including without limitation the City Fees and Charges subject to rebate under Section 4. 1, the Grant Amount under Section 6.3.2, and the Fire Station Construction Costs under Section 8 so that said payments can be accurately determined for all relevant periods; provided, however, that City shall not have a right of audit of the temporary fee rebate Linder Section 4.1 or the Grant Arnount under Section 6.3.2 unless developer elects under Section 6.1 to build the Enhanced Project. All such books, accounts and records, including true copies of all revenue and other income statements and tax returns, shall be maintained at Developer's (and/or its successor(s) in interest) address in Southern California,- or at another location reasonably designated by each Development Party in Southern California, for a period of at least five (5) calendar years after the expiration of the year during which the same relates. 4.4.2 Allocation of Costs -and Exiwnscs. In allocating any item of cost, expense, receipts or income to a particular portion of the Property, commercially reasonable real estate accounting principles, consistently applied, shall be utilized. 4.4.3 Non-Walver By City. The acceptance by the City of a payment, or the provision by City to Developer of a payment, required by this Agreement shall be without prejudice to the City's right to examine and to audit Developer's (and/or its successor(s) in interest) books, accounts and records to verify the accuracy of any information supplied by Developer (and/or its successor(s) in interest), and to challenge the accuracy and validity of any such payment(s). Developer (and/or its successor(s) in interest) shall make available to the City and the City's designated representatives for inspection during normal business hours at a business location of Developer (and/or its successor(s) in interest) located in Southern California, or at another location reasonably designated by Developer (and/or its successor(s) in interest) in Southern California, on twenty (20) business days' advance written notice, all of Developer's (and/or its successor(s) in interest's) books, accounts and records relating to the development of the Property (and all matters which are the subject of this Agreement), which books, accounts and records may be copied or extracted in whole or in part by the City or the City's designated representatives, but which will be maintained by City as proprietary and confidential business 1693521.7/iMannScM 028110-000213-14-12IM(nao -16- information to the extent permitted by the California Public Records Act (Government Code section 6250, et seq.), the Ralph M. Brown Act (Government Code section 54950, et seq.) and/or any other applicable state or federal laws respecting the disclosure of information held by a public agency. 4.4.5 Survival of Audit Richts. Notwithstanding any provision of this Agreement to the contrary, all of the City's rights under this Agreement to audit and review ally calculations or information submitted thereunder and collect any payments due the City shall survive any expiration of this Agreement as follows: (i) if Developer elects under Section 6.1 to build the Enhanced Project, then any audit right of the temporary fee rebate amounts under Section 4.1 shall continue until two (2) years following the final payment of a rebate amount under Section 4.1; (U) if Developer elects under Section 6.1 to build the Enhanced Project, then any audit right of the Grant Amount under Section 6.3.2 shall continue until two (2) years after the expiration of the Operating Period; (W) the City's audit right of the Fire Station Construction Costs under Section 8 shall continue until three (3) years after the issuance of a Certificate of Occupancy for the Fire Station. GFNERAL DEVELOPE.R COVENANTS 5.1 Coinineticenic " tit " of Inivrovenients and Coinl2letion In accordance with Section 3.6, Developer shall commence and complete, or cause to be commenced and completed, at Developer's sole cost and expense the construction of the Improvements. Developer shall be responsible for all costs of developing the Base Project and/or the Enhanced Project, which includes all costs for construction, alteration, demolition, installation, and repair work, and all costs for pre -development and pre -construction associated therewith, including inspection and land surveying work, for the Improvements. Once construction has commenced, Developer shall use commercially reasonable efforts to proceed to complete or cause to be completed the Base Project and/or the Enhanced Project in a good and workmanlike manner. 5.2 Large Format and Reinainina Commercial Development Revilers. All Large Format Retail Development and Remaining Commercial Development shall be. operated under one of the retail brand names set -forth in Exhibit "N" or such other retail brand name approved by City, in its sole and absolute discretion. UUMMUMMUMM 5.4 CitRiZht to Inspect. Officers, employees, agents and representatives of City shall have the right of reasonable access to the Property, without the payment of charges or fees, during normal construction hours, during the period of construction and. operation of the Base Project and/or the Enhanced Project. Developer shall make a representative or Developer available to accompany City representatives onto the Property, at all times, during normal construction hours, upon reasonable advance notice from City. Developer understands and agrees that any such City inspections are for the sole purpose of protecting City's rights under this Agreement, are made solely for City's benefit, that City's inspections may be superficial and general in nature, and are for the purposes of informing City of the progress of the construction 2699521.7hManagoDMS 028110-000213-14-12MM/laa I of the Base Project and/or the Enhanced Project in a manner consistent with the terms and conditions of this Agreement, and that Developer shall not be entitled to rely on any such inspection(s) as constituting City's approval, satisfaction or acceptance.of any materials, or otherwise. Developer agrees to make its own regular inspections of the work of construction of the Base Project and/or the Enhanced Project to determine that the quality of the 5.5 LDeveloncr Attendance at City Meethivs, Developer shall ensure that one or more of its employees or consultants who are knowledgeable regarding this Agreement and the construction and installation of the Improvements, such that such person(s) can meaningfully respond to City questions regarding the progress of the Improvements and attend meetings of the City Council and City staff, when reasonably requested to do so by City staff ("Developer Representative"). Developer shall identify the Developer Representative in writing to City within 30 days of the Effective Date, and shall identify any changes in the 'identity of the Developer Representative in writing to City immediately upon such change, 5.6 Maintenance Cove m ant. Developer for itself, its successors and assigns, covenants and agrees that: 5.6.1 General MaintenanceofProperty. The areas of the Property that are subject to public view (including all improvements and the existing and future improvements, paving, walkways, landscaping, exterior signage and ornamentation) shah he maintained in good repair and a neat, clean arid orderly condition, ordinary wear and tear excepted. If at any time prior to the end of the Term, there is an occurrence of a Maintenance Dericiency, then City may notify Developer in writing of the Maintenance Deficiency. If Developer fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) calendar days of its receipt of notice of the Maintenance Deficiency, City shall have the right to enter the Property, as necessary, and perform all acts necessary to cure the Maintenance Deficiency, or to take any other action at law or in equity that may then be available to City to accomplish the abatement of the Maintenance Deficiency. Any sum expended by City for the abatement of a Maintenance Deficiency, as authorized by this Section, shall become the debt of Developer. If the amount of the debt is not paid by Developer within thirty (30) calendar days after written demand for payment from City to Developer, City shall have the right to enforce collection by any available legal means including without limitation the withholding of the amount of the debt from any future payments and/or rebates to Developer under this Agreement. 5.6.2 Graffiti. Graffiti, as defined in Government Code Section 38772, that h been applied to the Improvements and that is visible from any public right-of-way adjacent contiguous to the Property shall be removed by Developer by either painting over the eviden applied, or graffiti may be removed with solvents, detergents or water, as appropriate, If a n noti such graffiti is not removed within seventy two (72) hours following the tinle of writte,] 'n from City to Developer of the discovery of the graffiti, City shall have the right to enter tl Property, as necessary, and remove the graffiti, without further notice to Developer. Any su actually expended by City for the, abatement of the graffiti, as authorized by this Section, sh 2698521.7hManageWS 0211110-00020-14-12/nIVIec become the debt of Developer, If the amount of the debt is not paid by Developer within thirty (30) calendar days after written demand for payment from City to Developer, City shall have the right to' enforce collection by any available legal means including without limitation the withholding of the amount of the debt from any future annual Grant payment under this Agreement. I 5.6.3 Lien Rialits, The, obligations of Developer and its successors and assigns under this Section 5.6 shall be secured by a lien against the Property. Developer hereby grants to the City a security interest in the Property with the power to establish and enforce a lien or other encumbrance against the Property, in the manner provided in Civil Code Sections 2924, 2924b and 2924c, to secure the obligations of the Developer and it successors under this Section, including Legal Costs and other costs of the City associated with the abatement of a Maintenance Deficiency or removal of graffiti. This Agreement shall provide notice of such security interest in favor of the City. The City shall reasonably subordinate its lien rights under this Section to security instruments or leases securing bonafide financing from Institutional Lenders to the Developer for construction of the Base Project and/or the Enhanced Project, upon ;written request from Developer and on the condition that Developer reimburse the City all of its Costs osts (including Legal Costs) incurred in providing such subordination. 6.1 Develover Election To Develop l"nhanced Project. At any time during the first -five (5) years following the Effective Date, Developer may in its sole and absolute discretion elect to develop the Enhanced Project. Such an election shall be effective upon the provision of notice of such election in writing to the City. 6.2 ARplicabilitv of Base Proicet Covenants. If, pursuant to -Section 6.1, Developer elects to develop the Enhanced Project, the following covenants, in addition to those set forth in Article 5 shall remain applicable and binding upon the parties. 6.3 Operatim, Covenant.. The provision to City of an election to develop the Enhanced Project pursuant to Section 6.1, shall constitute Developer's binding commitment to be bound by the Operating Covenant contained in this Section 63, which consists of the following terms and conditions: 63.1 Conduct of Reauired 0 7crations. During the Operating Period, Developer hereby covenants and agrees to diligently endeavor to continuously conduct or cause to be conducted the Required Operations on the Property. The failure of Developer to maintain the Required Operations during any Compliance Year within Operating Period shall, inter alga, excuse the City from the obligation to make any annual Grant payment pursuant to Section 6.3.2 for that Compliance Year. 6.3.2 Annual Grant Pa.vffLtLn—t. Subject to Developer's continued compliance under this Agreement, on or before June 30 following each calendar year during Operating Period in which Developer maintains the Required Operations, City agrees to pay Developer the Grant Amount, provided, however, that City shall not be required to pay the Grant Amount for 208521.7/iMangeDM5 0191 10-0002/3-14-IMPA/In -19- RW*j 1V 91:4 10 &1:1 LVA Lem I 1IM6161 WARM 01 M any calendar year during which Sales Tax Revenues do not equal a minimum of Two Million Five Hundred Thousand Dollars ($2,500,000). 6.3.3 Certification. Within forty-five (45) days following the end of each Compliance Year for which Developer claims an entitlement to receive an annual Grant Amount, Developer shall file a Certification. 6.3.4 Use Restriction, Throughout the Operating Period, the Property shall include buildings and facilities sufficient to support the Required Operations. 6.3.5 Covenant to Maintain ProL)crtypn Tax Rolls, Developer covenants to cause the Property to remain on the County of Los Angeles secured real property tax rolls, continuously, throughout the Term, and to pay all property taxes regarding the Property and all improvements on or to the Property before delinquency, throughout the Term. Notwithstanding the foregoing, the City may, in its sole and absolute discretion, and upon written request of Developer, consent to a use of a portion of the Property that would cause said portion of the Property to be removed from the County of Los Angeles secured real property tax rolls. 1 6.3.6 Ncovenants Convevancc to Tax Excinpi l-'ritity. Developer and agrees that throughout the Term, neither Developer, nor its successors or assigns, shall Transfer all or any portion of the Property to any Person or use all or any portion of the Property for any use, that is partially or wholly exempt from the payment of property taxes or that would cause the exemption of the payment of all or any portion of property taxes otherwise assessable regarding the Property, without the prior written consent of the City, which may be given or withheld in the City's sole and absolute discretion. Developer acknowledges and agrees that the covenants contained in this Section are material to the City and its decision to enter into this Agreement, as the City receives significant financing from property tax revenues from development within the City and that any violation of such covenants will result in financial injury to the City by depriving the City of property tax revenues from all or a portion of the Property or the Base Project and/or the Enhanced Project. Additionally, Developer acknowledges and agrees that the restrictions on Transfers set forth in this Section are reasonable under the circumstances because of the City's interest in property tax revenues from the Property. Notwithstanding the foregoing, Developer and City acknowledge that upon its transfer in- accordance with Section 8 of this Agreement, ownership of the Fire Station Site may be held by a tax exempt entity and/or the Fire Station Site may be used for purpose that is exempt from taxation, and such ownership and/or use shall not require any further consents under this Section 6.3.6. 0 6.3.7 Q.kqii!y_pfj1qprovcmcnts. Developer shall -cause the Improvements for the Enhanced Project to be constructed in a first class manner and at an average cost (i.e,, cost Z_ spread over all Improvements on the Property) of no less than two hundred thirty five dollars ($235.00) per square foot (including design, permitting, and construction costs), adjusted on an annual basis from and after the Effective Date based on the year -over -year change in the California Highway Construction Cost- Index (or, if the California Highway Construction Cost Index is discontinued, a substantially similar index selected by the City). All improvements will F- be maintained in a condition substantially identical (or better) than their original condition. All d !rp Large Format Retail Development and Remaining Commercial Development shall be operated 2698521.7hManageDMS 028110-000213-14-IMTWIlac -20- under one of the retail brand names set forth in Exhibit 14". or such other retail brand name approved by City, in its sole and absolute discretion. 6.4 Covenants Runninp, with the 1,an - d. The provisions of this Article 6 shall be covenants running with the land of the Property during the Operating Period for the benefit of and shall be enforceable solely by the City in its sole discretion. FAMMMR• r 7.1 Obligation. to Refrain from Discrimination. Developer covenants and agrees for itself, its successors, its assigns and all persons claiming under or through them to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, or sublessees of the Property. The foregoing covenants shall run with the land and shall remain in effect during the Extended Term. 7.2 Form of Non-discrimination and Non-seelLgation Claruses'. Developer covenants and agrees for itself, its successors, its assigns, and all persons claiming under or through them to the Prop6rty that Developer, such successors and suchassignsshall refrain from, restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining to all or any portion of the Property shall contain or be subject to substantially the following non-discrimination or non -segregation covenants: 0 7.2.1 In deeds, "The grantee herein covenants by and for itself, its successors U UJ and assigns, and all persons claiming under or through them, that there shall be no discrimination cc against or segregation of, any person or group of persons on account of race, color, creed, _J religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, J occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of 0 discrimination or segregation with reference to the selection, location, number, use or occupancy r_ of tenants, lessees, sub -tenants, or sub -lessees in the premises herein conveyed. The foregoing M covenants shall run with the land." 7.2.2 In leases. "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises here -in leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub -lessees, or sub -tenants in the premises herein leased." 2498521-7/iManageDMS CIS I I C�-0002/3-14-12JJTNIAac -21- 7.2.3 In contracts. "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status. national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices or discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub -lessees, or sub -tenants of the premises herein transferred," The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. FIRE STATION DEDICATION AND DEVE.LOPMENT. 8.1 Flection to Reouire Development of Fire Station Site. At any time during the twenty-five years period following the Effective Date, City may request in writing that Developer begin design and ultimately construct the Fire Station on the Fire Station Site. Upon issuing such request in writing, and upon Furnishing approved specifications for the development of the Fire Station to Devcluper, Developer shall be required to diligently commence design and other predevelopment activities, and to diligently procced to the completion of construction of the Fire Station on the Fire Station Site. City shall reasonably cooperate with Developer and developer shall reasonably cooperate with City in facilitating the construction of the Fire Station on the Fire Station Site. The Parties completion of construction or the Fire Station on the Fire Station Site shall occur within twenty four (24) months after the City issues its request that Developer begin design and ultimately construct the Fire Station on the Fire Station Site, but said timeline shall be extended based on force majeure events under Section 9.4, and based on unreasonable delays in the issuance of permits or authorizations from governmental authorities. 8.2 Design and Construction Costs., Developer shall bear all costs, fees, burdens, and charges associated with the design, permitting, construction and delivery of the Fire Station in a 0 0 manner that conforms to the specifications furnished by City pursuant to Section 8.1. City shall LU waive all City Fees and Charges in connection with the development and construction of the Fire Station, and such waived amount shall not be included in the Maximum Fee Amount. 0 8.3 Subdivision of Fire Station Site. Within two years following the issuance of a u_ Certificate of Occupancy for the Fire Station, Developer and City shall cause the Fire Station LL 0 Site to be a separately saleable property through the filing of a condominium map, or such other procedure for rendering the Fire Station Site saleable as the Parties may mutually agree upon. 0 8.4 I)eveloper's Rental of Fire Station to City. Upon issuance of a Certificate of Z 0 occupancy for the Fire Station, City and Developer shall enter Into the Fire Station Lease. This Agreement creates a present obligation to enter into the Fire Station Lease. All material terms and requirements to be included in the Fire Station Lease have been included in this Agreement, 0 0 and any additional matters included by mutual consent in the Fire Station Lease shall be fully .Ln consistent with the terms set forth in this Agreement. 8.5 LConveyance of Fire Station ind Fire Station Site to City. Upon payment by City to Developer of the Fire Station Construction Costs, which shall be paid by City to Developer as LLJ rent over a period of twenty (20) years, the Fire Station Lease shall terminate. Upon the 2 Ir LLI a 2699521.7/Nanagel)MS 0 cr 028110.000213-14.12/T M/lac -22- r' W I termination of the Fire Station Lease, Developer shall convey fee title to the Fire Station, the Fire Station Site and all improvements and fixtures thereon to City, and the Fire Station Lease shall be terminated with such termination. 9. DI--TAULT, RKMFMAF�S. AND TERMINATION. 9.1 Notice and Op ortunity to Cure. Before this Agreement may be terminated or action may be taken to obtain judicial relief, the Party seeking relief ("Non -Defaulting Party") shall comply with the notice and cure provisions of this Section 9.1. A Nondefaulting Party in its discretion may elect to declare a default under this Agreement in accordance with the procedures hereinafter set forth for any failure or breach of any other Party ("Defaulting Party") to perform any material duty or obligation of said Defaulting Party in accordance with the terms of this Agreement. However, the Non -Defaulting Party must provide written notice to the Defaulting Party setting forth the nature of the breach or failure and the actions, if any, required by the Nondefaulting Party to cure such breach or failure. The Defaulting Party shall be deemed in "default" of its obligations set forth in this Agreement if the Defaulting Party has failed to take action and cured the default within fifteen (1 S) days after the date of such notice (for monetary defaults), within thirty (30) days after the date of such notice (for non -monetary- defaults), or within such lesser time as may be specifically pro ' vided in this Agreement. if, however, a non - monetary default cannot be cured within such thirty (30) day period, as long as the Defaulting Party does each of the following, then the Defaulting Party shall not be deemed in breach of this Agreement: (i) notifies the Non -Defaulting Party in writing with a reasonable explanation as to the reasons the asserted default is not curable within the thirty (30) day period; (ii) notifies the Non -Defaulting Party of the Defaulting Party's proposed course of action to cure the default; (W) promptly commences to cure the default within the thirty (30) day period; (iv) makes periodic reports to the Non -Defaulting Party as to the progress of the program of cure; and (v) diligently prosecutes such cure to completion. Notwithstanding the foregoing, the Defaulting Party shall be deemed in default of its obligations set forth in this Agreement if said breach or failure involves the payment of money but the Defaulting Party has failed to completely cure said monetary default within fifteen (1 S) days (or such lesser time as may be specifically provided in this Agreement) after the date of such notice. 9.2 Default Iternedics. Subject to Section 9.3, in the event of a default, the Non - Defaulting Party, at its option, may institute legal action to cure., correct, or remedy such default, enjoin any threatened or attempted violation, enforce the terms of this Agreement by specific performance, Or pursue any other legal or equitable remedy. Furthermore, City, in addition to or as an alternative to exercising the remedies set forth in this Section 9.2, in the event of a material default by Developer, may give notice of its intent to terminate or modify this Agreement pursuant to the Development Agreement Statute, in which event the matter shall be scheduled for consideration and review by the City Council in the manner set forth in the Development Agreement Statute. 9.3 Develoner's Exclusive Reinedv. The Parties acknowledge that City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement, or the Existing Land Use Regulations, or the application thereof, or any permit or approval.- sought by Developer in accordance with the Existing Land Use Regulations. Accordingly, Developer covenants on behalf of itself and its successors and assigns, not to sue 2698521.7hManagcDM$ 0261 10-0003-14-12M Mw -23- 11 i 11 1 1 lllirl�'� 111111 1 1 i ir;i;; 1 1 1 iiqr�r'11� City for damages or monetary relief for any breach of this Agreement or arising out of or connected with any dispute, controversy or issue regarding the application, interpretation or effect of this Agreement, the Existing Land Use Regulations, or any land use permit or approval sought in connection with the development or use of the Property or any portion thereof, the Parties agreeing that declaratory and injunctive relief, mandate, and specific performance shall be Developer's sole and exclusive judicial remedies. Notwithstanding the foregoing, the Parties acknowledge and agree that Developer may seek specific performance of City's monetary obligations under this Agreement, and that such an action for specific performance shall not be construed as an action for damages. 9.4 Force Maieure. The obligations by any Party hereunder shall not be deemed to be in default where delays or failures to perform are due to any cause without the fault and beyond the reasonable control of such Party, including to the extent applicable, the following: war; insurrection; strikes; walk -outs; the unavailability or shortage of labor, matcrial,lor equipment; riots; floods; earthquakes; the discovery and resolution of hazardous waste or significant geologic, hydrologic, archaeological, paleontological, or endangered species problems on the Property; fires; casualties; acts of God; governmental restrictions imposed or mandated by other governmental entities; with regard to delays of Developer's performance, delays caused by City's failure to act or timely perform its obligations set forth herein; with regard to delays of City's performance, delays caused by Developer's failure to act or timely perform its obligations set forth herein; inability to obtain necessary permits or approvals from other governmental entities; enactment of conflicting state or federal statutes or regulations; judicial decisions; or litigation not commenced by such Party. Notwithstanding the foregoing, any delay caused by the failure of City or any agency, division, or office of City to timely issue a license, permit, or approval required pursuant to this Agreement shall not constitute iiia event of force majeure' extending the time for City's performance hereunder. If written notice of such delay or impossibility of performance is provided to the other Parties within a reasonable time after the commencement of such delay or condition of impossibility, an extension of time for such cause will be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon by the Parties in writing, or the performance 'rendered impossible may be excused in writing by the Party so notified. In no event shall adverse market or financial conditions constitute an event of force majeure extending the time for such Party's performance hereunder. Unless the parties agree in writing to the contrary, in no event shall the Term of this Agreement be extended by an event of force majeure. 10, ANNUAl. -REVIEW. F- 0 10.1 Timing of Annual Review. During the Term of this Agreement, at least once Z A during every twelve (12) month period from the Effective Date, after receipt of each annual >- Certification from Developer, City shall review the good faith compliance of Developer with the (L terms of this Agreement ("Annual Review"). The Annual Review shall be, conducted by the 0 0 City Council or its designee in accordance with the Development Agreement Staule. 10.2 Standards for AnnuaIJKqview. During the Annual Review, Developer shall be required to demonstrate good faith compliance with the terms of this Agreement, If City or its designee finds and determines that Developer has not complied with any of the terms or conditions bf this Agreement, then City may declare a default by Developer in accordance with 269852 LIAMamageMS D291 10-ON213-14-12/M, Mae -24- Article 9 herein. City may exercise its rights and remedies relating to any such event of default onl�j after the �#:,eriod f default. The costs incurred by City in connection with the Annual Review process shall be paid by Developer. 10.3 Certificate of Coml2liance. With respect to each year in which City approves Developees compliance with this Agreement, City shall, upon written request by Developer, provide Developer with a written certificate of good faith compliance within thirty (30) days of City's receipt of Developer's request for same. H. MORTGAGFJ-.� RIGHTS. 11.1 Fneumbrances - on (fie Property. The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, from encumbering the Prooefty or any portion thereof or any i ' mprovements thereon with any Mortgage securing financing with respect to the construction, development, use, or operation of the Base Project and/or,' the Enhanced Project. 11.2 M gee Protection. This Agreement shall be superior and senior to the lien of MP lit Magee � any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof by a Mortgagee (whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement and any such Mortgagee who takes title to the Property or any portion thereof shall be entitled to the benefits arising under this Agreement. ICU =EtirdMTJn7Zna""T lie perro Tvel�per a condition to the performance of a covenant by City, the performance thereof shall cont be a condition precedent to City's performance hereunder. 11.4 Notice of Defa(ilt it) Ofllllflortglg�,Aj_!��Lr,�. Each Mortgagee shall, upon written request to City, be entitled to receive written notice from City of the results of the Annual Review and of i' by Developer of its obligations set forth in this Agreement. Each Mortgagee shall have a further right, but not an obligation, to cure such default within fifteen (15) days after receipt of such notice (for monetary defaults), within thirty ('30) days after receipt of such notice (for non -monetary defaults) or, if such default can only be remedied or cured by such Mortgagee upon obtaining possession of the Property, such Jwma 6 1 117 ka I) Dais aWer oufaining possession, and, except in case of emergency or to protect the public health or safety, City may 2699521.7/iMill 024110-002/3-14-12/1 -25- (30) day period'. provided, however, that in the case of a default which cannot with diligence be remedied or cured within such thirty (30) day period, the Mortgagee shall have such additional time as is reasonably necessary to remedy or cure such default provided Mortgagee promptly commences to cure the default within the thirty (30) day period and diligently prosecutes such cure to completion. 12. ASSIGNM13NT. 12.1 Richt to Assipn. Subject to City's prior written consent, which shall not be unreasonably withheld, Developer shall have the right to assign its rights and obligations under this Agreement in connection with a Transfer of Developer's interest in the Property. In the event of any such assignment, the assignee shall be liable for the performance of the assigned obligations of Developer. In determining whether to grant consent to an assignment under this Section, factors that may be considered by the City include, but are not limited to, the extent of the assignee's ownership interest in the Property (or any portion thereof), the desire to have the master developer of the Property hold substantially all of the rights under tile �grcemcnt, tile assignee's demonstrated experience in developing and/or operating pv)ccts of like kind and scale as the Base Project (or the Enhanced Project, if Developer makes the clection audiori;,cd by Section 6.1), the assignee's commitment to develop and maintain the Base Project (or the Enhanced Project, if Developer makes the election authorized by Section 6.1), and the financial ability of the assignee to complete development and/or maintain operation of the Base Project (or the Enhanced Project, if Developer makes the election authorized by Section 6.1), In the event of Transfers to end users such as those who will develop Large Format Retail Development or Remaining Commercial Development, if such Transfer(s) is/are approved by the C ' ity, such transferees) shall inure to the benefits and burdens of this Agreement; provided, however, that such transferee(s) shall not receive the benefits of set forth in Section 4,1 and Section 6.3. 12,2 Release Uvon Transfer ol'Agivement. Upon the written consent of City to the partial or complete assignment of this Agreement (which consent shall not be unreasonably Withheld) and the express written assumption in a form approved by City of Stich assigned obligations of Developer under this Agreement by the assignee, Developer shall be relieved of its legal duty to perform the assigned obligations set forth in this Agreement, except to the extent Developer is in default hereunder prior to said transfer. 12.3 Assignee Subject toTerins of Afirceniew. Following an assignment or transfer of any of the rights and interests of Developer set forth in this Agreement in accordance with Sections 12.1 and 12.2, the assignee's exercise, use, and enjoyment of the Property shall be subject to the terms of this Agreement to the same extent as if the assignee or transferee were Developer. 12.4 Release Won Transfer of interest in Leased Pro pery y. Upon the written consent of City to the partial or complete transfer of Developer's interest in the Leased Property pursuant to Section 13.01 of that certain Ground Lease By and Between City of Downey and Industrial Realty Group, LLC, dated on or about December 4, 2003 (which consent shall not be unreasonably withheld) and the express written assumption in a form approved by City or such assigned obligations of Developer under said Ground Lease by that assignee, Developer shall be 269852LYManageOMS 028110-0002/1-14-121TIWAd -26- relieved of its legal duty to perform the assigned obligations set forth in said Ground Lease, except to the extent Developer is in default thereunder prior to said transfer. 13. INSURANCE AND INDEMNITY. 13.1 Insurance. 13,1,1 Base Project Insurance. Developer shall procure and maintain on the Developer Leased Property the insurance required under that certain Ground . Lease dated December 4, 2003 between City and Industrial Realty Group, LLC, a Nov,da limited liability company. 13.1.2 Frillanced Pro ' iect Insurance. If Developer elects tinder Section 6.1 to build the Enhanced Project, then Developer shall procure and maintain insurance, on the Property in the types and amounts required under that certain Ground Lease dated December 4, 2003 between City and Industrial Realty Group, LLC, a Nevada limited liability company. 13,13 Insurance Does Not Relieve Liability. Insurance coverage in the minimum amounts set forth in this Agreement shall not be construed to relieve Developer of any liability, whether within, outside, or in excess of such coverage, and regardless or solvency or insolvency of the insurer that issues the coverage; nor shall it preclude City from taking such other actions as are available to it under any other provision of this Agreement or otherwise at law. 131.4 Default for Failure to Maintain Insurance. Failure by Developer to maintain all insurance required by this Agreement in effect at all times shall be a default by Developer under this Agreement. City, at its sole option, may exercise any remedy available to it in connection with such default. Additionally, City may purchase any such required insurance coverage and City shall be entitled to immediate payment from Developer for any premiums and associated costs paid by City for such insurance coverage. Any election by City to purchase or not to purchase insurance for Developer's contractor shall not relieve Developer of its obligation to obtain and maintain the insurance coverage required by this Agreement. 13.2 Indemnities by DeveloDer. 13.2,1 General Indeninity. Developer agrees to indemnify, protect, defend, and hold harmless the City Parties from and against any and all Claims which may arise, directly or indirectly, from the 'acts, omissions, or operations of Developer or Developer's agents, contractors, subcontractors, agents, or employees pursuant to this Agreement, but excluding any loss resulting solely from the intentional or active negligence of the City Parties. Notwithstanding the foregoing, City shall have the right to select and retain counsel to defend any such action or actions and Developer shall pay the cost thereof-, provided, however, that the Parties agree to attempt in good faith to coordinate and/or consolidate their defense of any Claim that is subject to the indemnification provisions of this Section 13.2. 13.2.2 11'revailing-Wage Indemnity and Notice to Developer of Labor Code Section 1781. In connection with, but without limiting, the foregoing, Developer hereby expressly acknowledges and agrees that the City is not by this Agreement affirmatively 2698521-7AManageM 020110-0002/3- R-1 VJD44ae -27- representing, and has not, previously affirmatively represented, to the Developer or any contractor(s) of Developer for any construction on or development on or adjacent to the Property, in writing or otherwise, in a call for bids or any agreement or otherwise, that any work to be undertaken on the Property, as may be referred to in this Agreement or construed under this Agreement, is not a "public work," as defined in Section 1720 of the Labor Code or under Davis - Bacon, or under any similar existing or hereinafter enacted law or regulation. The Parties agree that, in connection with the development and construction (as defined by applicable law) of the Base Project (or the Enhanced Project if Developer makes the election authorized by Section 6.1), including, without limitation, any and all public works (as defined by applicable law),. Developer shall bear all risks of payment or non-payment of prevailing wages under California law and/or federal law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or Davis Bacon and/or any other similar law. With respect to the foregoing, Developer shall be solely responsible, expressly or impliedly and legally and financially, for determining and effectuating compliance with all applicable federal, state and local public works requirements, prevailing wage laws, and labor laws and standards, and City makes no representation, either legally and/or financially, as to the applicability or non - applicability of any federal, state and local laws to the construction of the Base Project and/or the Enhanced Project Without limiting the foregoing, Developer shall indemnify, protect, defend and hold harmless the City and its officers, employees, agents, representatives, and attorneys, with counsel reasonably acceptable to City, from and against "increased costs" as defined in California Labor Code Section 1781 (including City's reasonable attorneys' fees, court and litigation costs, and fees of expert witnesses) in connection with the development or construction (as defined by applicable law) of or on the Property, that results or arises in any way from (1) noncompliance by Developer of the requirement, if and to the extent applicable, to pay federal or state prevailing d wages and hire apprentices; or (2) failure by Developer to provide any required disclosure or identification as required by California Labor Code Sections 1720 et seq. including without limitation specifically Section 1781, as the same may be amended from time to time. The foregoing indemnity shall Survive the expiration or earlier termination of this Agreement. _J U13,23 Environmental Indeninity. Developer agrees, in addition to any other —nder this Agreement or any other agreement U_ indemnity obligations of.Developer to City U LL between the Parties and at Developer's sale cost and expense, to indemnify, protect, defend, hold harmless, (with counsel reasonably acceptable to City) the City Parties and each of them, from M and against any and all Environmental Losses that may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded against, City directly or indirectly relating to or arising from any Environmental Matters arising during or as a result of Developer's ownership or rn use of the Property, but excluding any loss resulting solely from the intentional or active negligence of the City Parties. Notwithstanding the foregoing, City shall have the right to select and retain counsel to defend any such action of actions and Developer shall pay the cost thereof, provided, however, that the Parties agree to attempt in good faith to coordinate and/or consolidate their defense of any Environmental Losses that are subject to the indemnification provisions of this Section 13,23. The indemnity provisions set forth in this Agreement shall survive termination of this Agreement until the expiration of the statute of limitations for the applicable Claim. 0283 10-0002A-14.12/frWlac -28- 13.3 Indeninirication Procedures -1 Wherever this Agreement requires any indemnitor to indemnify any indemnitee: 133.1 Prompt Notice.. City shall promptly notify Developer in writing of any 13.3.2 Cooveration. City shall reasonably cooperate with Developer's defense, provided Developer reimburses City's actual reasonable out of pocket expenses (including Legal Costs) of such cooperation. 13.3.3 Settlement, Any settlement shall requite the prior written consent of both City and Developer, which consent shall not be unreasonably withheld. 13.3.4 Citv Coo ertitictrt. City shall reasonably cooperate with Developer's defense, provided Developer reimburses City for its actual reasonable out of pocket expenses (including Legal Costs) of such cooperation. 13.3.5 Insurance -Proceeds. Developer's obligations shall be reduced by net insurance proceeds City actually receives for the matter giving rise to indemnificatiOn. 14. THIRD PARTY LEGAL CHALLENGE, 14,1 _Qc�v s1pner Coveriant to Dc end this Agrecnient. Developer acknowledges that City is a "public entity" and/or a "public agency" as defined under applicable California law, Therefore, City must satisfy the requirements of certain California statutes relating to the actions of public entities, including, without limitation, CEQA. Also, as a public body, City's action in approving this Agreement, the Specific Plan, Maps, and/or any other current or future action of Ci City in connection with the approval or implementation of the Base Project and/or the Enhanced X 0 Project may be subject to proceedings to invalidate. this Agreement or mandamus. Developer 0 assumes the risk of and waives and releases any claims for delays and damages that may result to LU X Developer from any third -party legal actions related to City's approval of this Agreement, the _J activities contemplated under this Agreement, the Specific Plan, Maps, and/or any other current < 0 or future action of City in connection with the approval or implementation of the Base Project 1 . and/or the Enhanced Project, even in the event that an error, omission or abuse of discretion by LL the City is determined to have occurred. if a third party files a legal action regarding City's 0 r_ approval of this Agreement, the pursuit of the activities contemplated by this Agreement, the (0 Specific Plan, Maps, and/or any other current or future action of City in connection with the 0 F- approval or implementation of the Base Project and/or the Enhanced Project, Developer shall z indemnify and defend the City, with legal counsel reasonably selected by the City, against such 0 third -party legal action, and shall pay all of the court costs, attorney fees, monetary awards, sanctions, attorney fee awards, expert witness and consulting' fees, and any expenses of any and all financial or performance obligations resulting from the disposition of the legal action. If 0 Developer breaches its obligations to defend and indemnify City as detailed in this Section 14.1, City may terminate this Agreement on thirty (30) calendar days' written notice to Developer of City's intent to terminate this Agreement, referencing this Section 14.1, without any further obligation on the part of City to perform the terms of this Agreement. Nothing contained in this Section 14.1 shall be deemed or construed to be an express or implied admission that City is 2698521,7AMFtnaBODMS 0281 10-0003-14-12IM440 -29- liable to Developer or any other person or entity for damages alleged from any alleged or established failure of City to comply with any statute, including, without limitation, CEQA. 15, MISCELLANEOUS. 15.1 Conwliance with Applicable Law. Developer shall carry out the construction of the Base Project and/or the Enhanced Project in accordance with all applicable laws, regulations, and rules of Governmental Agencies, including without limitation all applicable federal and state labor standards. 15.2 Covenants. The provisions of this Agreement shall constitute covenants which shall run with the landcomprisingthe Property for the benefit thereof, and the burdens and benefits hereof shall bind and inure to the benefit of each of the Parties hereto and all successors in interest to the Parties hereto. 1 15.3 Mutual Covenants. The covenants contained in this Agreement are mutual c . ovenants and constitute conditions precedent or concurrent to the subsequent or concurrent performance by the Party benefited by the covenant(s). 15A Recordation ol'Aarcement. This Agreement and any amendment, modification, termination or cancellation of this Agreement shall be recorded against the Property in the official records of the County Recorder by the Clerk of the City Council, within the period required by Section 65868,5 of the Government Code. Developer authorizes the recording of all such documents against the Property, and each and every parcel within the Property, whether preceding, during or after the Extended Term. 15.5 Constructive Notice and Acceptance. Subject to Article 12, every person who now or hereafter owns or acquires any right, title, or interest in or to any portion of the Base O Project and/or the Enhanced Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Base Project and/or the Enhanced Project or the Property. U- 15.6 Successors in Interest. Subject to Section 12. 1, the burdens of this Agreement U- shall be binding upon and the benefits of this Agreement shall inure to all successors in interest 0 to the Parties. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land of the Property. Subject to Section 12.1, each 0 covenant of this Agreement to do or refrain from doing some act regarding development of the Z Property: (i) is for the benefit of and is a burden upon every portion of the Property; (U) runs with every portion of the Property; and (W) is binding upon Developer and each successor in n interest to Developer in ownership of the Property or any portion of the Property. 15.7 Otv Manager Ininlementatiqn, City shall implement this Agreement through its City Manager. The City Manager is hereby authorized by City to issue approvals, interpretations or waivers and enter into certain amendments to this Agreement on behalf of City, to the extent that any such action(s) does/do not materially or substantially change the Improvement or increase the monetary obligations of City by more than Seventy -Five Thousand Dollars ($75,000) in the aggregate, provided, however, that in the event the Specific Plan allows certain 2698521.7/Nanagal)MS 0281 10-0003-14-12dMinae -30- approvals by the Community Development Director, his designee or the Community Development Department, the procedures in the Specific Plan shall be followed. All other actions shall require the consideration and approval of the City Council, unless expressly provided otherwise by action of the City Council. Nothing in this Section 15.6 shall restrict the submission to the City Council of any matter within the City Manager's authority under this Section 15.6, in the City Manager's sole and absolute discretion, to obtain the City Council's express and specific authorization on such matter. The specific intent of this Section 15.6 is to authorize certain actions on behalf of City by the City Manager, but not to require, that such actions be taken by the City Manager, without consideration by the City Council. 15,8 Political Reform Act. The Parties acknowledge that they are each aware of the Political Reform Act, Each Party represents and warrants to the other that it is its -full intention to comply with all applicable provisions of the Political Reform Act, 15.9 SLII-ViVnl of Aareernent. All of the provisions of this Agreement shall be applicable to any dispute between the Parties arising from this Agreement, whether prior to or following expiration or termination of this Agreement, until any such dispute) is finally and completely resolved between the Parties, either by written settlement, entry of a iion-appealable judgment or expiration of all applicable statutory limitations periods and all terms pnd conditions of this Agreement relating to dispute resolution and limitations on damages or remedies shall survive any expiration or termination of this Agreement. 15.10 Entirc Aurccuicat. Waiver -s and Aniendmenis. This Agreement constitutes the entire understanding and agreement of the Parties and supersedes all previous negotiations, discussions, and agreements among the Parties with respect to all or part of the subject matter hereof, No parole evidence of any prior or other agreement shall be permitted to contradict or vary the terms of this Agreement. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by any other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Parties with the terms of this Agreement thereafter. Any amendments or modifications to this Agreement must be in writing, signed by duly authorized representatives of each of the Parties hereto, and recorded in the Official Records of Los Angeles County, California. 15.11 Princioles of Interoretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have both participated substantially in the negotiation, drafting, and revision of this Agreement, with advice from legal and other counsel and advisers of their own selection. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words "include" and "including" in this Agreement shall be construed to be followed by the words: "without limitation." Each collective noun in this Agreement shall be interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document, as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document. The word "or" in this Agreement includes the word "and." Every reference to a law, statute, 2698521.7/iManaScOMS 0281 1WQ2t3-i4-1VJTWae -31- regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 15.1,2 Incorooration of Recitals'. The Recitals of fact set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference. 15.13 Section I-Icadines and Section and Article Referenecs, All section headings and subheadings in this Agreement are inserted for convenience only and shall not be considered in the construction or interpretation of this Agreement. All references to Section numbers shall be construed to include any and all subsections of the referenced Section number. All references to Articles shall be construed to include each and every section and subsection within the referenced Article. 15.14 Sineular and Plural. As used in this Agreement, the singular of anyiword includes the plural. 1 15.15 Calculation of Time Periods'. Unless otherwise specified, all references to time periods in this Agreement measured in days shall be to consecutive calendar days, all references to time periods in this Agreement measured in months shall be to consecutive calendar months and all references to time periods in this Agreement measured in years shall be to consecutive calendar years. Any reference to business days in this Agreement shall mean consecutive business days. 15.16 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element. i 6 15.17 Further Actions and Instruments. Each of the Parties shall cooperate with and X provide reasonable assistance to the other Parties to the extent necessary to implement this 0 Agreement. Upon the request of a Party at any time, the other Parties shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary to implement this Agreement or to evidence or consummate the transactions contemplated by this Agreement. LL 15.18 Severability. If any term, provision, covenant, or condition of this Agreement is U- held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining 0 C provisions of this Agreement shall continue in full force and effect, unless and to the extent the M rights and obligations of any Party has been materially altered or abridged by such holding. 0 z 15.19 Legral Ex2enscs, In any Action proceeding between City and Developer, the .9 prevailing party in such Action shall recover all of its actual and reasonable costs and expenses >- (whether or not the same would be recoverable pursuant to Code of Civil Procedure CL 0 Section 1033.5 or Civil Code Section 1717 in the absence of this Agreement), including expert witness fees, attorney's fees, and costs of investigation and preparation prior to the commencement of the Action. However, such recovery shall not exceed the dollar amount of the actual costs and expenses of the party from whom such recovery is sought for such same Action, O and such prevailing party shall not recover any costs and expenses in excess of the non - prevailing party's expenses. The right to recover such costs and expenses shall accrue upon 2698521,71iManaBaDNIS 0281 t0-000213-1442/M411ot -32- commencement of the Action, regardless of whether the Action is prosecuted to a final judgment or decision. 15.20 No Third I'Aar(v l3etiefiydarics. This Agreement and all of its terms, conditions, and provisions are entered into only for the benefit of the Parties executing this Agreement (and any successors in interest), and not for the benefit of any other individual or entity. III this regard, the owner of any portion of the Property that does not timely enter into and perform this Agreement or a substantially similar agreement with City shall have no benefit from, and shall not be a beneficiary of, any of the provisions of this Agreement. 15.21 ]tee itioii,,iiii)ori,,.tiiie,;. City and Developer hereby renounce the existence of any form of joint Venture or partnership between them and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making City and Developer joint venturers or partners. 15.22 Development as a Private Undcrlakinp_ The Parties acknowledgeland agree that the development of the Development is a private development. Neither Party is acting as the agent of the other in any respect pursuant to this Agreement and each Party is an independent contracting entity, with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. Other than the relationship between City and Developer with respect to the Developer. Leased Property, the only relationship between City and Developer is that of a government entity regulating the development of private property and the owner of such property. 15.23. Ins lion of Books Lod records. Subject to the limitations set forth in Section 4*55 City shall have the right at all reasonable times, at City's sole cost and expense, to inspect the books and records of Developer relating to this Agreement, the Property, the Base Project and/or the Enhanced Project, and any development approvals for the Base Project and/or the Enhanced Project, to the extent relevant to City's rights or obligations under this Agreement, but excluding any proprietary information or attorney-client privileged communications. Developer shall also have the right at all reasonable times, at Developer's sole cost and expense, to inspect the books and records of City relating to this Agreement, the Property, the Base Project and/or the Enhanced Project, and any development approvals for the Base Project and/or the Enhanced Project, to the extent relevant to Developer's rights or obligations under this Agreement, but excluding any proprietary information, closed -session information or attorney-client privileged M communications. 15.24 Eqto el Cerfilic-ate. Any Party hereunder may, at any time, deliver written notice to any other Party requesting such Party to certify in writing that, to the best knowledge of the certifying Patty, (i) this Agreement is in full force and effect and a binding obligation of the Party; (H) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments; and (iii) the requesting Party is not in default in the performance of its obligations set forth in this Agreement or, if in default, to describe therein the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and return such certificate within sixty (60) days following the receipt thereof. Any third party including a Mortgagee shall be entitled to rely on the Certificate. 2698521.7/iMinageDMS 02911 0-0002/3-1 4-12!]'f .33- ice!I` I ��Vjr 111111 301 15.25 AWlicable Law, Venue. This Agreement shall be construed and enforced in accordance with the internal laws of the State of California. Any action at law or in equity arising under this Agreement or brought by any Party hereto for the purpose of enforcing, 15.26 Non -Liability of Citv Officers and FlijiLlo e —yees. No official, officer, employe , agent or representative of City shall be personally liable to any of Developer or its shareholders, partners, officers, employees, agents, respective, successors and/or assigns for any loss arising out of or connected with this Aqrccment,. the Existin LanOL of the Property. 15.27 Non-Liabilitv of DcvelcTcrs Officer.q Itid EindoYce . No official, officer, employee, agent or representative of Developer shall be personally liable to any of the City Parties for any loss arising out of or connected with this Agreement, the Existing Land Use rxegulations, or the development of the Property. 15.28 Notices. Any notice or communication required hereunder between City and Developer must be in writing and may be given either personally, by registered or certified mail, return receipt requested, or by facsimile transmission. If given by registered or certified mail, the same shall be deemed to have been given and received on the date of actual receipt by the addressee designated hereinbelow as the Party to whom the notice is sent. If personally delivered, a notice shall be deemed to have been given when delivered to the Party to whom it is addressed. Notices delivered by facsimile transmission shall be deemed to have been given on the first business day following the date of transmission to the facsimile number. A Party hereto may at any time, by giving ten (10) days' written notice to the other Parties hereto, designate any other address in substitution of the address to -which such notice or, communication shall be given. Such notices or communications shall be given to the Parties at their addresses set forth below: I r tq-City: City of Downey City Hall 11111 Brookshire Downey, CA 90241 Attn: City Manager Telephone: (562) 904-7284 Telecopy: (562) 923-6388 Witf) a copy to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, CA 92626 Attn: Jeffrey T. Metching, Esq. Telephone, (714)641-5100 Telecopy: (714) 546-9035 2699521.71iMwe&cDMS 0281 10-,XO2/3-I4-I2/4T7,Mw -34- If to Develooer: Manarino Realty LLC 15615 Alton Parkway #450 Irvine, CA 92618 Attn: Robert A. Manarino Telephone: (949) 748-7800 Telecopy: (949) 748-7807 With a copy to: Allen Matkins Leck Gamble Mallory & Natsis LLP Three Embareadero Center, 121h Floor San Francisco, CA 94111-4074 Attri, Sonia Ransom, Esq. Telephone: (415) 837-1515 Telecopy: (415) 837-1516 15.29 ,LtelIrg it4aion is to Ownership. Developer represents and warrants that . _�,c Developer is the owner in fee of the Developer Owned Property. 1.5.30 Re-presenta on as to Ownership. City represents and warrants that City is the owner in fee of the Developer Leased Property. 15.31 Authority to FAccutc. Developer warrants and represents that (i) it is duly organized and existing, (d) it is duly authorized to execute and deliver this Agreement, (iii) by so executing this Agreement, Developer, is formally bound to the provisions of this Agreement, (iv) Developer's entering into and performance of its obligations set forth in this Agreement does not violate any provision of any other agreement to which Developer is bound, and (v) there is no existing or threatened litigation or legal proceeding of which Developer is aware which could prevent Developer from entering into or performing its obligations set forth in this Agreement. 15.32 Authority to Fxecute '. City warrants and represents that (i) it is duly organized and existing, (fl) it is duly authorized to execute and deliver this Agreement, (W) by so executing this Agreement, City is formally bound to the provisions of this Agreement, (b) City's entering into and performance of its obligations set forth in this Agreement does not violate any provision of any other agreement to which City is bound, and (v) there is no existing or threatened litigation or legal proceeding of which City is aware which could prevent City from entering into or performing its obligations set forth in this Agreement. 15,33 Execution of Asireement. COUntemarts. This Agreement may be executed by the Parties in counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. This Agreement shall constitute a valid and enforceable agreement between City and Developer. 1.5.34 Exhibits. This Agreement contains nine (9) exhibits, attached hereto and made a part hereof by this reference. Said exhibits are identified as follows: A Legal Description of Developer Owned Property B Depiction of Developer Owned Property C Legal Description of Developer Leased Property D Depiction of Developer Leased Property 2698521,7/jManapDMS .35- 028110-000213-14 -12JUNInn C Depiction of Property F Fire Station Site Plan G (RESERVED] 14 Pre -Approved Retail Development Brand N=6 I Pre -Approved Hotel Development Brand Names UMMEMEM= 0 0 w 0: _j L) LL LL 0 a cc 0 rn z (L 0 U F_ d 2 w w a 2698521.7/iMmiageM _3(j - ix 028110-0002/3-14-12/)TMae 0 -c'--- IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the date first written above. Mo CITY OF DOWNEY, a Charter City A By: -- May C. NrrEST, City Clerk 1,4 M, L) /Ircfi�z APPROVED AS TO FOM tte M. Abich Garcia City Attorney 1911-1�-MSFEFT I OFF I 111111T F i3i'll I I 2699521.7/iManageM 02911 "OVI, I 4-12/MlAso -37- PCCP IRG DOWNEY, LLC, By: ICCII LB IRG Downey, LLC, its S M t1a * a Member Nanic. William R. Lindsay Autliorficd Signato Title: ry IRG DOWNEY, LLC, F-DWITEEfflom By: S.L. Properties, In Dy; Name: aItmkm U(Af6A- Title: 4&4 f 2 698 5 21.7/WanagoDMS 0281 LO-000213-14-120MACC -38. STATE OF CALIFORNIA )ss COUNTY OF LOS ANGELES) Notary Public On _tNka" ZZ,? K -Z- before me, _64a,6 L personally appeared -Mqtp -it. U. r\ V*Hftety� r *04 provc�to =e n the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. 1 14; - 'j. DC:r11A1TVr1rPER 1iM'V..A fk I Af+h Witness my hand and official sea[. �� g,u" vi aQmaV State of %@Dfornfla that 'Me foregoing is true and conrcet. GAB 1171L"'�'N`8135016 Commission # 1630053 Notary Pubile - California ZZ Z Orange county t 190 Comm. Ezplres Jan 9.2013 t (SEAL] STATE OF CALIFORNIA ) ss COUNTY OF LOS ANGELES) otary t i b I i C On before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ics), and that by his/her/their signaturc(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seat. 2698521,71iMannoaDMS 026110.000213.14-1 VnM1nc -39- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of �0,5 On Z/,?before m®, aA, Date J / T A601 Namo 741 Wig of dig offict'd personally appeared Xo I who proved to me on the basis of satisfactory evidence to be the person(p?whose name(o is/ subscribed to the AURIA M, MNEZ within instrument and acknowledged to me that Cenr*gw 0 1971284 he/she/they executed the same in hisAwAbiair authorized ft"y pum - camomll capacity (j*, and that by hi it signature(s) on the Los Aopft Cooty – instrument the person*, or the entity upon behalf of which the person(o) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS han a offiseal.c, Signature Place Notary Seal Above OPTIONAL — f�lrtj0 l 1rGf NOVI POAC Though the information below 15 not required by law, It may prove valuable to person relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: O M Capacity(les) Claimed by Signer(e) Signer's Name; Signer's Name: 0 Individual LJ Individual 0 Corporate Officer —Title(s): El Corporate Officer — Tille(s): 0 Partner — El Limited [I GeneralEl Partner — E) Limited 0 General 0 Attorney In Fact Top ')f thumb� 0 Attorney in Fact VON" EJ Trustee here 0 Trustee Top el thumb here 0 Guardian or Conservator C. Guardian or Conservator E21 Other: D Other. O Signer Is Representing: Signer Is Representing: LU uj 1) 02007Natiaml Notary Ass odatbn - 9350 Do Soto Ave,, P.O.Box 2402 -ChatmerINCA 91313-24(32-www.NallonalMaInr)tDrg ItemN5M7 Reedar:GdTall-Freel-800-M-MI 9101 STATE OF CALIFORNIA ) ss COUNTY OF LOS ANGELES) ILC, On I 1 before me, persott lly� appeared kv IA)h 0 proved to me on the basis of satisfactory evidence) to be the personal whose name(s� is/acre subscribed to the within instrument and acknowledged to me that he/AeAhe), executed the same in his/UoAhek authorized capacity(los), and that by hisAwf4heir signature W on the instrument the person(s) or the entity upon behalf of which the person(.4 acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State ol"Callfornla that the foregoing is true and correct. Witness my hand and official seal. oo°Pubiie STATEOFCAL[F NIA COUNTY OF LO On N111 before me, appeared- N personally known to me (or proved t 0 on o\ person(s) whose name(s) is/are subscribed t lie he/she/they executed the same in his/hcr/th _ cir signature(s) on the instrument the person(s) or acted, executed the instrument. Witness my ban.l and official seal. 2698521.7/iManugeDMS 038110.000213 -14 -RI TBMe , personally the basis of satisfactory evidence) to be the within instrument and acknowledged to me that ,thorized capacity(ies), and that by his/her/their bvl-, 'entity upon behalf.of which the person(s) M Notary Public I CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of I On before me, Noiary flublic M10 Hoo kwil Nam rind TRW of ilto affcOt personally appeared Unc�i ame(s),of SigRortal QABRIEL .r L. Wit LEY Inn, COMMISS on 'I I Notary Public - caliloinla 0 Z orange county - Z M Comm Expires Jan 9 2013 t who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/arelsubscribed to the within instrument and acknowledglad to me that helshelthey executed the same in his/herAheir authorized capacity(ies), and that by his/herAheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct. WITNESS my hand and official seal. Pifts Noldry Seal Mow signatu'Modalulft M t4oulty Pu 4o OPTIONALi Though the informatlon below Is no( requirod by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Title or Type of Document: Document Date: Signer(s) Other Than Named Above: , Capacity(lies) Claimed by Signer(s) Signer's Name: L-1 Individual 0 Corporate Officer — Title(s)- 0 Partner — 0 Limited 0 General • Attorney in Fact • • Trustee Top at thumb here • Guardian or Conservator 11 Other: Signer Is Representing: Number of Pages: Signer's Name'. • Individual • Corporate Officer — Title(s): CJ Partner — El Limited El General 0 Attorney in Fact El Trustee top r.f 1h. -b her. 0 Guardian or Conservator 0 Other: Signer Is Representing: - 02007 Nallonal Notary Awmial4w - 9350 Do Soto Ave., P.O. So 9402 - ChatSmrth, CA 91313-2402-www.NalWWNMry.orq IteM45907 Reorder: Call Td-f;w 14*076-6827 State of California Count ot On rb e f o r e m e, a personally appear d who proved to me on the basis - of satisfactory evidence to be the erson(s whos am q�j�e i w -hC ment and acknowledged subscribed to 11 1 1 1 i�rtin i dlclo v e that aie�the� executed the same in his r/the te ir authorized c acity s), and that by h( I their _ i6natur ? (s t-i�ltlp e Instrument the .0 DENISE"MAMIE"76LAN"M Ec n �Lp , 0 �tulrlly upon behalf of which the Commission # 1849047 1 Z son(s acted, executed the instrument. Notary Public -California � Los Angeles County — I certify under PENALTY OF PERJURY under the MrnExplres May 21,201�31 laws of the State of California that the foregoing paragraph is true and correct. I WITNESS my jid am(o-fficiali se9l./i Signature: UL/ -f 11 tet ./ Place Notary Seal AMve - OPTIONAL S410 I 4turo 01 Notary ourAt Though the information below is not required by law, it may prove valuable to persons relying an the and coul 1 prevent fraudulent removal and reattachment of this form to another document. Title or Type oLQocument! Document Date: Signer(s) Other Than Named ATAwe;_, Capacity(les) Claimed by Signer( Signer's Name: • Corporate Officer — Titia(s); • Individual 0 Partner — 0 Limited 0 General 0 Attorney in Fact 0 Trustee Cl Guardian or Conservator 0 Other: Signer Is Representing: lon--fiumber of Pages: ner's Name, C1 Corpd? :) s ficer — Title( 'or a&M CJ Individual ti of thumb here 0 Partner — Fj Limited 0 General B Attorney in Fact El Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: Top of thumb here 0 2010 National Notary Amodadon - NatlanallNotary,org - 1 -000 -US NOTARY (1-800-876-8827) Ilern 95907 FIN111111'r $%A'* Lx%cription ol'Develover Owned 11roptr gall De _tj ELI EXHIBIT "A" LEGAL DESCRIPTION ACQLMSRION PARCEL r'}: • a: • 1. 1: i. is • • :1 rrT" i •• •.:• is 1.. is : •' •a: 1:• r- - • r • • it •.; is `.lp ltl : ' +, • BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTE IY AND HAVING A RADIUS OF WO,40 FEET; THFME NORTHEMTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF I 0`464r. A DISTANCE OF 1137,00 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 82.Ib FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL. ANGLE OF 66.1723'. A DISTANCE OF 84.73 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 366.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE 'THROUGH A CENTRAL ANGLE OF 78'01 , A DISTANCE O4` 641.05 FEET. THENCE NORTH MOM* EAST 321.62 FEET TO THE M43INNINGi OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 416.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF ir39W. A DISTANCE OF 128.78 FEET TO SAID UNE BETWEEN THE POEM OF BEGINNING AND THE SOUTHWEST CORNER OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF FRACTIONAL SECTION 10; THENCE NORTH 0013'18" EAST, ALONG SAID LINE, A DISTANCE OF 1324.18 FEET TO THE TRITE POINT OF BEGINIMING. CONTAINING AN AREA OF 2,550.878 SQUARE FEET, MORE OR LESS. ALL AS SHOWN ON EXHIBIT "B' ATTACHED HERETO AND MADE A PART HEREOF. LS, 6154 A RimeW 91:4 2:11 A, 1:4 lidM Iq A EXHIBIT "B" 'ACQUISITION PARCEL' SXWARY ANOP A MAR w UNE MSTA M if S 89-41111- W1144.21 e�a A cj Ft - IMADMON & AG&OCIATEk WC, �El Wo 0 SiFtill CA6 617to Odp CAUFOM (Ax NL MM S.W. c S' L m SECT. CENTER 10 A -5912% A-82.01 P IMADMON & AG&OCIATEk WC, �El Wo 0 SiFtill CA6 617to Odp CAUFOM (Ax NL MM S.W. c S' L m SECT. CENTER 10 mgce 2 - Deviction, of Developer Owned Proverty m Legal Descriotion )f Developer Leased Property m GOWAINING AN AREA OF 867,497 SQUARE FEET, MORE OR LESS. A a..a`....1 - EXHIBIT "B" 'INDUSTRIAL REALTY GROUP GROUND LEASE' L& (.1 2 STEWART AND ft')jqAD UNE NE BEARING DISTANT 1DI2S3T0A .NC t905 ti " U S 8OV N 8IN N -LY UN:E:—/ UN Z; LOT 2 Ag 41 LINE 4 2 WASRes HOUM m SEAT. 1C1 A,l r ----El Y u SA 11946, SEIM I n-24"9 �1 'yo R 2*,�l 6" L- 2,7 FT SILY S.E. ►Y4M.E. lu NZ aw. W. SEC. 10 EADOON A40"IATED. INQ EL;,A a #hpop cr.LA'aft A owmpm dm 0 fffrw LICERM K, 0001 CA. 11719 maom -1 0 81 FAX VA00" rW4j 336"4 17mrom I Wq *III,, IN U -17M PKV:Jetipp.Develofle.Y.J.....eased Pro erty a 'ACQUI T! PARCEL' KF - LOT .._ _ 1srraA,F IWO J gyW r—aoo• ELM A {{ j/� 40a ry IOF�1 a 0 c TER 9'8°E1' SCOT. 10 s � F f 41, F !N^414iPdi v N =3 g4• I 1hd1�4`d�i`42' -SF- 11/A s.wE l4q y I!MOON k Ad (Alms. INC. i MURNM 11 S1mmMUM ft OtB, dY ®10 Sao-117�r OUFMM 7 97m1 FAX oft" WWA De netion of ProjMrtv ME I-EMMI. -,W=-t 14 mom r ma n via lw=rTro f OT LOT 2 LOT 3 PARCEL WASHBURN 65,913 SFJ 411,342.84 SF 513,102.72 SF. 471,045.20 SF IZI AC 9.44 AC 11.78AC 10.81 AC OT 15 1 j LOT 16 PARCEL 187,333.97 SF 55,064.73 SF 5,221.67 SF 4.14 AC L 1-26 AC 0A2AC LOT14-T 6,966 SP LOT a.= 0A6AC 93,73 2.79 5F mom Jllj ziSAC -'o' 0 k; -101,492.91 SF�, -j : LOT LOTS .1 -OT 4 U- '234AC /LoTg 100,776 j PARCEL -j LOT13 74,459.15 52,668 SF' 167,695 SF 4,589.15 SF -i 1.21 AC 3.71 AC b.31 AC LW 106,492.91 SF 1.72 AC 0.10 AC 2.44 AC LOT7 L - 89,454.73 SF = PARCEL 2.05 AC ins 1I.Mm"L.W 6w U.4 351,259 SF CONG_RE55NLAN S7EVE LOT 12 LOT11 8.64 AC 261,32.08 SF 2345,613.11 SF 6.00AC 5.43 AC LEGEND: TPM. 71.543 nERMLUNA MAPIMTPUCE H&MORTIM011 11,•uslilunklill'i li lLellictioll of F re ShItioll Site SrM PLAN BLOCK PROGRAM STUI DY rNm CRY of mrwnay- V= 4w 11 X 1.7 'r, 45 liqll a'i • •' 1• .� • i iii; d a • r i 1181111 my% Pre- tge1 ]fie t lil Development Brand hi x a s 90 BIG 5 CABELAS DICKS SPORTING GOODS GOLF SMITH NIKE FACTORY STORE ROGER DUNN SPORT CHALET SPORTMART BASS PRO SHOP — OUTDOOR WORLD, TRACKER BOATS SUPERCENTER TOYS, GAMES & ELECTRONICS AT&T WIRELESS BABIES R US GAME STOP T -MOBILE TOYS R US VERIZON WIRELESS FRY'S SPECIALTY DINING AUNTIE ANNE'S PRETZEL BAJA FRESH BASKIN ROBBINS BEN & JERRY'S COFFEE BEAN & TEA LEAF COLDSTONE CREAMERY HOT DOG ON A STICK JAMBA JUICE LAMAJOON SHISH KABOB MAUI STYLE HAWAIIAN BBQ NIBI PHO BISTRO ON THE BORDER PANDA EXPRESS PANERA BREAD RED BRICK PIZZA ROCKY MOUNTAIN CHOCOLATE ROLL IT SUSHI SBARRO ITALIAN EATERY STARBUCKS SUBWAY SWEET FACTORY TOGO'S TUTTI FRUTTI FROZEN YOGURT YOGURTLAND PINKSERRY FARRELLS ICE CREAM PARLOR CALIFORNIA PIZZA KITCHEN CEFIORE ITALIAN YOGURT CHEESECAKE FACTORY CHICAGO PIZZA & BREWERY CLAIM JUMPER CORNER BAKERY CAFE DAILY GRILL DAPHNE'S GREEK CAFE EINSTEIN BROS BAGELS FIVE GUYS FAMOUS BURGERS AND FRIES FRESCA°S MEXICAN GRILL HANAH GRILLE ISLANDS RESTAURANTS JOE'S CRAB SHACK HOLDINGS, INC. JOHNNY ROCKETS HABIT BURGER LONE STAR STEAKHOUSE & SALOON INC. MACARONI GRILL MAGGIANO'S LITTLE ITALY MCCORMICK & SCHMICK'S SEAFOOD RESTAURANTS MEDS DRIVE-IN OLD SPAGHETTI FACTORY ON THE BORDER MEXICAN GRILL & CANTINA ORIGINAL ROADHOUSE GRILL OUTBACK STEAKHOUSE P.F. CHANG'S CHINA BISTRO, INC. PARADISE BAKERY & CAFE PEI WEI ASIAN DINER PICK UP STIR, INC. PORTILLO RESTAURANT GROUP RED LOBSTER RED ROBIN RUBY'S DINER SOUPLANTATION T.G.I. FRIDAYS WOOD RANCH YARDHOUSE FORMAL DINING FACTORY BOA STEAK HOUSE CAFt R&D FLEMINGS HOUSTONS KINGS SEAFOOD LE GRAND ORANGE MORTONS ROY'S SUSHIROKU TONY ROMAS TORO'S RUTH CHRIS STEAKHOUSE CASUAL DINING APPLEBEE'S BENIHANA BLACK ANGUS BOSTON'S GOURMET PIZZA BUSBA GUMP SHRIMP CO. RESTAURANTS 47 •'i � • •' • }� i � !moi CLAIRE'S NIKE FACTORY STORE CLARKS/BOSTONIAN NORDSTROM CONVERSE NORDSTROM RACK DC SHOES O'NEILL DSW PAOLO GIARDINI ETNIES: EXS PERRY ELLIS FAMOUS FOOTWEAR QUICKSILVER NINE WEST STEIN MART OFF BROADWAY T.J. MAXX PUMA TILLY'S REEBOK TOMMY HILFIGER ROCKPORT U.S. POLO ASSN. SHOE PAVILLION UNDER ARMOUR SKETCHERS VAN HEUSEN SPRITZ VANS VINCE CAMUTO SHOES WOMENS APPAREL VOLCOM AEROPOSTLE AMERICAN APPAREL ANN TAYLOR HOUSEWARES & HOME FURNISHING BANANA REPUBLIC 3 DAY BLINDS BCBGIRLS AARON BROTHERS BCBG( MAXAZRIA ANNA'S LINENS BENNETTON BOMBAY COMPANY BILLABONG CORNINGWARE CORELLE REVERE CABI COST PLUS CALVIN KLEIN HOME GOODS (TJX COMPANY) CHARLOTTE RUSSE KITCHEN COLLECTION CHARMING SHOPS LE CREUSET COLUMBIA SPORTSWEAR LINENS N THINGS DKNY MATTRESS GALLERY DOCKERS PIER 1 IMPORTS DOTS DRESS BARN ECKO UN LTD. MEN'S APPAREL ESPIRIT AEROPOSTLE FILENE'S BASEMENT AMERICAN APPAREL FOREIGN EXCHANGE BACHRACH FOSSIL BANANA REPUBLIC GAP, INC BENNETTON GUESS BILLABONG H&M CALVIN KLEIN HANES BRANDS COLUMBIA SPORTSWEAR HURLEY INTERNATIONAL DC SHOES IZOD DKNY JOURNEYS DOCKERS JUICY COUTURE ECKO UNLTD. JUSTICE FILENE'S BASEMENT KENNETH COLE FOSSIL KIPLING GAP, INC LEVIS GUESS LIDS H&M LUCKY BRAND JEANS HANES BRANDS MAIDENFORM HURLEY INTERNATIONAL MAXSTUDIO.COM IZOD MICHAEL KORS JOURNEYS MICHAEL'S JUICY COUTURE NAUTICA KENNETH COLE NIKE FACTORY STORE LEVIS NORDSTROM LIDS NORDSTROM RACK LUCKY BRAND JEANS NOT YOUR DAUGHTERS JEANS MICHAEL KORS O'NEILL MICHAEL'S PAPAYA FACTORY OUTLET NAUTICA PERRY ELLIS • .• HILTON WORLDWIDE LUXURY CONRAD HOTELS & RESORTS WALDORF ASTORIA HOTELS AND RESORTS FULL SERVICE HILTON HOTELS & RESORTS DOUBLETREE BY HILTON EMBASSY SUITES FOCUSED SERVICE HILTON GARDEN INN HAMPTONINN HAMPTON INN & SUITES STARWOOD HOTELS AND RESORTS SHERATON W ESTIN W HOTELS FOUR POINTS BY SHERATON LE MERIDIEN ST. REGIS THE LUXURY COLLECTION ALOFT ELEMENT MARRIOTT INTERNATIONAL MARRIOTT HOTELS & RESORTS JW MARRIOTT HOTELS & RESORTS RENAISSANCE HOTELS EDITION HOTELS AUTOGRAPH COLLECTION COURTYARD BY MARRIOTT AC HOTELS BY MARRIOTT RESIDENCE INN BY MARRIOTT FAIRFIELD INN & SUITES BY MARRIOTT MARRIOTT CONFERENCE CENTERS TOWNEPLACE SUITES BY MARRIOTT SPRINGHILL SUITES BY MARRIOTT MARRIOTT VACATION CLUB THE RITZ-CARLTON HOTEL COMPANY, L.L.C. THE RITZ-CARLTON DESTINATION CLUB EXECUSTAY MARRIOTT EXECUTIVE APARTMENTS GRAND RESIDENCES BY MARRIOTT O W tY LLI EVdA1 tT "I" ® 2698521.7liManagcD S 1 i iY 01-4110-0002n-24-12/JTM(jhn ', QUICKSILVER STEIN MART SUO T.J. MARX THE AVE TILLY'S TOMMY HILFIGER TORRID TREND THEORY TWO LIPS U.S. POLO ASSN. ULTA UNDER ARMOUR CHILDREWS APPAREL BABIES R US CARTER'S CHILDREN'S PLACE KIDS BUDDIEZ KIDS SUPERCENTER OSHKOSH STRIDE RITE SPECIALTIES 24 HOUR FITNESS ACE HARDWARE ARIZONA LEATHER BALLY'S BARBEQUES GALORE BARNES & NOBLE BEVERAGES N MORE BRISTOL FARMS CALIFORNIA NATIONAL BANK CHASE BANK COACH DAVIDS BRIDAL DAVE AND BUSTERS DESIGNER FRAGRANCES & COSMETICS ECKO UNLTD. FEDEX KINKOS GELSONS SUPER MARKET GOLD'S GYM GYMBOREE HAIR CUTTERS HAIR SALON HALLMARK HANCOCK FABRICS HENRY'S FARMERS MARKET HILTON JO -ANN FABRIC KRAGEN LIDS NAIL SALON OFFICE DEPOT PACIFIO DENTAL PARTY AME RICA SAMSONITE COMPANY STORE SMART & FINAL SPROCKETS KIDS SPROUTS MARKET SUNGLASS HUT TARGET TIME FACTORY WATCH OUTLET sil TRADER JOE'S TRUE VALUE WELLS FARGO WHOLEFOODS WILSONS LEATHER 49,•-r • Whitl .� . r • •• r 1 4,k, 6 r.11019ANTHIN I �'� (Above Space for Recorder's Use Only) FIRST ANIENDMENTTO TIERRA 1AJNA DEVELOINFINT AGREEIMEN11' lav and between (1TY 01 - DOWN EYsand IRR DOWN[N. H.C,a DOMWIVC JiMilCLI h0bilitV C01110,11 g�, as to an undivided 90% interest. and IRG DOWNFY. IJ.C.a Califlornia limited 14-ibilitv compalm as to an undivided 10% interest •-fy 77 L11, L . a r T, a Ualitornia cmirier city, ('771 —,T ':T 7� "I I I liability company, as to an undivided 90% interest, and IRG DOWNEY, LLC, a California limited liability company, as to an undivided 10% interest (collectively, "DEVELOPER"). City ani Developer are collectively referred to herein as the "Parties." A. Whereas, on March 15, 2012, the Parties entered into the Tierra Luna Development Agreement ("Development Agreement"); B. Whereas, the Development Agreement allowed Developer to develop the Property with either the Base Project or the Enhanced Project; C. Whereas, Developer was required by Section 6.1 to make an election in writirm, during the first five years of the Development Agreement's term if Developer wished to devel the Enhanced Project on the Property; I D. Whereas, Developer did not make such an election and therefore Developer no wishes to codify in writing its decision to develop the Base Project on the Property; and I I E. Whereas, the Parties also wish to amend certain sections of the Development Agreement. Attachment "B" NOW, THEREFORE, based upon the foregoing Recitals, which are incorporated herein by reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: 1. DEVELOPMENT OFT PROPERTY 1.1. Dcvelopment ofthe Base 1'roiect. Developer has elected to carry out and develop the Base Project on the Property in accordance with the Existing Land Use Regulations. As a result, Developer hereby reaffirms that it will comply with the provisions of the Development Agreement that apply to the Base Project. 1.2. Developer Flection to Develop Fnhanced Prqjgc!. Developer has not and will not make an election to develop the Enhanced Project on the Property pursuant to Section 6.1 of the Development Agreement. In light of Developer's decision to develop the Base Project, the provisions of Article 6 of the Development Agreement do not and will not apply to the development of the Property. Article 6 of the Development Agreement shall therefore be deleted in its entirety. 1.3. Term with Enhanced Proiect Flectimi. Section 2.1.2 of the Development Agreement shall be deleted in its entirety given the Developer's decision to proceed with the Base Project. 2.1. Lam)e Forillat and Renlailling, Commercial Dcvelotmictit Ketailers. Section 5.2 the Development Agreement shall be amended and replaced as follows: I I amje Format and Remaiging Commercial Develownent Retailers. All Large Format Retail Development and Remaining Commercial Development developed as part of the Base Project shall be operated under one of the retail brand names set forth in Exhibit "H" or such other retail brand narne in the Developer's sole discretion. 3.1. Development of the Fire Station Site. Article 8 of the Development AgreerneM] Property. The City no longer desires to have a Fire Station built on the Property. Article 8 of t Development Agreement, together with the definitions included in Sections 1.36, 1.37, 1.38 a 1.39, shall therefore be deleted in their entirety. Exhibit F shall also be deleted from t Development Agreement. I -2- I fLo Develooer: PCCP 1 Downey, LLC 555 California Street, Suite 3450 San Francisco, California 94104 Attn: Aaron Giovara Telephone: (415) 732-7645 Telecopy: (415) 732-7547 With a coin to: Allen Matkins Leck Gamble Mallory & Natsis LLP One America Plaza 600 West Broadway, 27th Floor San Diego, California 92101, Attn: Heather S. Riley Telephone: (619) 233-1155 Telecopy: (619) 233-1158 4.3 Cotjntcrtxirts: This First Amendment may be executed in any number (I counterparts, each of which shall be deemed an original, but all of which, taken together, sh constitute one and the same instrument. I 0"8 i I 0-K.'ONS, 14- 1711", fft the farties have executealffi-s-f—irst Amenctme lie clay and year first above written. Approved as to Form: 04k ette M. Abich Garcia t y v Attorney Kai I CITY OF DOWNEY, u. n jii i- Vt& t.- - 6 By, Nalne: ernand6 Vasquez Its: Mayor vfjwlq�r �rICCP IRG D,.:.. LLC, its Managing Member By: Name: Its: Kum IRG DOWNEY, LLC, 02 8110-0002/8-14-1 7/hsr/j tm -I- 9MUZURHIM ii- In i �' I FVTM 0I ; I :Zol-1 AUTq j,' Ill'A q -A -I "C QCXJPA A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of LOS 5 On x2M before me, fVt A10h4ry tU(lc- Date Here insert Name and Title of the Officer personally appeared Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person* whose name(k) is/ara subscribed to the within instrument and acknowledged to me that he/eheAhey executed the same In his r authorized capacity(jee), and that by his/hertthalt signature(4 on the Instrument the personN, or the entity upon behalf of which the person( j() acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. - ---------------- REBECCA ANN GUERRERO r— WITNESS my ha Yd official seal. Commission # 2112736 1 1 1 z Z Notary Public - California z ZLos Angeles County Signature Comm. lEx fres Jun 19,2,01J9 v� WV11111.11 Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: E) Corporate Officer — Title(s): El Partner — 0 Limited 0 General E) Individual El Attorney in ct El Trustee 0 Guar or Conservator El Other: Signer Is Repres ing: of Pages: Signer's Name: El Corporate Officer — Title(s): L1 Partner — 0 Limited El General 0 Individual El Attorney in Fact El Trustee El Guardian or Conservator El Other: Signer Is Representing: 14".x3rAM YVVIVII WMIN @2016 National Notary Association - www.NationalNotary.org - 1 -800 -US NOTARY (1-800-876-6827) Item #5907 ,q , -111111�10 • .1 1 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of On—AM3U,-yL Date ,abefore me, ate Here Heart Name and Title of th Officer personally appeared AarMA-hia/ffa Nan,L7eo of Signer} n- 71errm US "T or Me te6, ex�cut�d the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and, official seal., Signature Signa re of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: El Corporate Officer — Title(s): L1 Partner — El Limited 0 General E) Individual 0 Attorney in Fact 0 Trustee 0 Guardian or Conservator El Other: — Signer Is Representing: Kum�. Signer's i1ame: El Corporate Officer El Partner — El Limited 0 General El Individual El Attorney in Fact El Tnistee El Guardian or Conservat El Other: - Signer Is Representing: 02016 National Notary Association - www.NationaiNotary.org - 1 -800 -US NOTARY (1-800-876-6827) Item #5907 • executed 1 Irs ?, first above written. Maria Alicia Duarte, CMC Interim City Clerk Yvette M. Abich Garcia City Attorney 0281 10-0002/8-14 -1 7/kr/j tm Rehm CITY OF DOWNEY, ............ Name: Its: PCCP IRG DOWNEY, LLC, By: PCCP LB IRG Downey, LLC, its Managing Member By: Name: Lwn A. GOMM Its: --- ALJU oui 4-6d Siol -fatery IRG DOWNEY, LLC, 52USNUUM P-11MIXF&M Mriff-M M1 who signed the document to which this certificate is attached, and not the truthfUlness, acwacy, cw validity of that •♦ Ria •; AuLyust 15. 2017 , before me, Renav Irene Cardoria MarqLicz Notary Public personally appeared John A. Mase who proved to me on the basis of satisfactory - "EW14'"Wa"N the person or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. tW�RENAY IRENE CARDONAMARQUEZ (IUEZ "P� C'Ilfor Notary Public - CallfornlW�B- Los Angeles County Signature (Seal) COMMISSIon 12182550 'VJ53�� My Comm, Expire,069. 2021 DINNIN DIEU N U 01005 MAI W %1� City of Downey Attn: City Clerk 11111 Brookshire Avenue Downey, CA 90241 S E C 0 1 D AME 11 L YTT, I E f 1 —1 71 IT ME R—RT—LU 1 -1 7V DEVELOPMENT AGREEMENT bv and amona CITY OF DOWNEY, PCCP IRG DOWNEY, LLC, IRG DOWNEY, LLC and US VI DOWNEY, LLC This Second Amendment to Tierra Luna Development Agreement ("Second Amendment") is made and entered into effective as of , 2019, by and among the CITY OF DOWNEY, a California charter city ("City"), PCCP IRG DOWNEY, LLC, a Fikelaware limited liability company, as to an undivided 90% interest, IRG DOWNEY, LLC, a California limited liability company, as to an undivided 10% interest (collectively, "Developer"), and US VI Downey, LLC, a Delaware limited liability company ("Buyer"). City, Developer and FoLuyer are collectively referred to herein as the "Parties." A. Whereas, on March 15, 2012, the Parties entered into the Tierra Luna 4evelopment Agreement ("Development Agreement"); B. Whereas, the Development Agreement allowed Developer to develop the Property with either the Base Project or the Enhanced Project; C. Whereas, on September 13, 2017, the parties entered into the First Amendment to the Tierra Luna Development Agreement ("First Amendment"); D. Whereas, Developer was required by Section 6.1 of the Development Agreement to make an election in writing during the first five years of the Development Agreement's term if FIF,eveloper wished to develop the Enhanced Project on the Property; E. Whereas, Developer did not make such an election and Developer codified in writing its decision to develop the Base Project on the Property in the First Amendment; 12908308.2 F. Whereas, the Developer Owned Property has been sold to Buyer, but Developer has retained the Developer Leased Property; and G. Whereas as part of the sale of the Developer Owned Property, Developer and Buyer have entered into an Operating Agreement, dated September 21, 2018 ("Operating Agreement"). NOW, THEREFORE, based upon the foregoing Recitals, which are incorporated herein by reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: 1.1 Extension of Term. City, Developer and Buyer hereby agree to extend the Term of the Development Agreement pursuant to the authorization in Section 2.1.1 of the Development Agreement. The extended term of the Development Agreement shall commence upon the Effective Date of this Second Amendment and shall continue thereafter for five (5) years. 2.1 Notices. Section 15.28 of the Development Agreement, which was previously amended in the First Amendment, shall be ftirther amended to add a notice address for Buyer. Such notices and communications as described in Section 15.28 shall be given to Buyer at the address set forth below: If to Buver: c/o Northwood Investors LLC 11355 W. Olympic Blvd., Suite 100 Los Angeles, California 90064 Attn: Daniel Palmieri Facsimile: (310) 943-1685 With a cony to: Pircher Nichols & Meeks LLP 1901 Avenue of the Stars, Suite 1200 Los Angeles, California 90067 Attn: Real Estate Notices (DBG/ADK/5080001.5) Facsimile: (310) 201-8922 2.2 Defined Terms: Capitalized terms that are not specifically defined in this Second Amendment shall have the meaning assigned to those terms in the Development Agreement or the First Amendment. 2.3 Full Force and Effect. All applicable terms and provisions of the Development Agreement, the First Amendment and the Operating Agreement remain in full force and effect, except those that are specifically modified in this Second Amendment. 12908308.2 2 2.4 Counter - Parts: This Second Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City, Developer and Buyer hereto have executed this Second Amendment the date and year first above written. "CITY" CITY OF DO EY, a Municipal corporation of the State of California 111EVELOPER" PCCP IRG DOWNEY, LLC, a Delaware limited liability company By: ------- Nani/ Its: ET i" IRG DOWNEY, LLC, a CalifonziQ. li- * 1 1.• "J."M By: IRG III, LLC By: S.L. Properties, Inc. 12908308,2 3 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, aCCUraCy. or validity of that document. State of California CountyofAo-o On_�fficA,<-C,V% 12, 2019, before me, a Notary Public, personally appeared C zj je -T7L> who proved to me on the basis of satisfactory evidence to be the person(,*) whose name(,%) is/u—K subscribed to the within instrument and acknowledged to me that lichsli.5Z�- executed the saine in his/her��r authorized capacit, and that by his/h.VA4tor sitjnatiire�k) oti the iIIStI'LlMCl1t the person�g), or the entity upon belial f of which the person�'� acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Signature 12908308.2 5 C. K. RECINOS Notary Public - California Los Angeles County COMMISSion # 2197743 Signature 12908308.2 5 2.4 Counteroarts: This Second Amendment may be executed in any number of counterparts, each of i�hich shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City, Developer and Buyer hereto have executed this Second Amendment the date and year first above written. "CITY" CITY OF DOWNEY, a Municipal corporation of the State of California "DEVELOPER" PCCP IRG DOWNEY, LLC, e By: PCCP LB IRG Downey, LLC, its Managing Member By: Name: Its, "DEVELOPER" IRG DOWNEY, LLC, a California limited liability comDanv 1!14y: IRG 111, LLC ,jgb, By: S.I,. flroperlies, Inc. ,W af..i- - N, 12908308.2 3 A notary public or other officer completing this certificate verifies only the identity of the individual who signed th document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. e] State of Cal * fi rnia County of , "-q I On ��C VI kIA , '10 k4'j_, before me,'�gyyLq ICW- Cav-4ow4 �6(Ac!j&&L a Notary Public, personally appeared A tlwho proved to me on the basis of satisfactory evidence to be the person(4 whose name(4 isla;6 subscribed to the within instrument and acknowledged to me that he/s)(e/tI$y executed the same in his/lljfthmir authorized capacity(joo, and that by his/hjtr/th* signature(p) on the instrument the personV, or the entity upon behalf of which the personA acted, executed the instrument. 17 certify under PENALTY OF PERJURY under the laws of the State of California that the 'oregoing paragraph is true and correct. '%I7yq-IKTUVVI— A .4 ---1 rr an an o Signature W, 12908308.2 RENAVI RENE CARDONA MARQUEZ Notary Pubtic - CaBjjrornja Z. Los kqMesCaunty COMM�5'00n:t 2182550 MYCOMM, Expires At 9.202.1 9 a, tvt "t US VI DOWNEY, LLC, a Delaware limited liability. company By: US VI CP, LP, a Delaware limited partnership, its Sole Member Flo', y: BVK US VI CA GP, LLC, a Delaware limited liability company, its General Partner By: - .01'` Name: K"'8sf Title: VII e)eDI red V - By: uj Name: Title: v -R C4V 0 J 12908308.2 4 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. '(Vcj ya r L - State ofc� County of Ale r k _rC 111SLfL111C11L LUIC or the entity upon behalf of which the person(s) acted, executed the instrument. Nev; Yet, I certify under PENALTY OF PERJURY under the laws of the State ofC-alifeftiia h ie ff a In TITM� Signature 12908308.2 8 DIANE ANDREWS NOTARY PUBLIC -STATE OF NEW YORI< AN6359017 QualifiedIn RichmondCounty My Commission Expires 05-22-2021 im �tj A*W igjm!�••' ' 19 U11611 I I I E -7J I IN KWA I I M IN I Of KXKM go I I tar! uwjw mit"oll U-41HE, I Its E I uIng 11RE116114 1111111 maMUK4111mgmIj MIAMI 11,glamej U I or! two (lit - I Wo& - State of CaRfo� County of Alo-W On /V a- r cAA 1.3 - dqj_L, before me, 72) e- j4,\ rew-& , a Notary Public, INON 04 1 11INLI1111CHL UHU dUK110W1CUgCU LO Me MUL WiVi execMeu Me same in nis7MT11'..5 /hM17 'M', -arW -013 -in-ArUMent-the-per-,On(-,),--O, authorized capacity(ies), and that his It the the entity upon behalf of which the person(s) acted, executed the instrument. Y. 4- I certify under PENALTY OF PERJURY under the laws of the State of'-C�- � that the foregoing paragraph is true and correct. I M= 12908308.2 9 DIANE ANDREWS ZATAAY 7-', n -LIC -STATE #F NEW, Y#AK No. 01AN6359017 Qualified In Richmond County My Commission Expires 05-22-2021 i I It 01100 1 pion lki ply -#I t1411 D11205 ffir-11 I Me City of Downey Attn: City Clerk 11111 Brookshire Aventrii Downey, CA 90241 SECOND AMENDMENT TO TIERRA LUNA DEVELOPMENT AGREEMENT bv and amon.v CITY OF DOWNEY. PCCP tRG DOWNEY, LLC, IRG DOWNEY, LLC and US VI DOWNEY. LLC This Second Amendment to Tierra Luna Development Agreement ("Second Amendment") is made and entered into effective as of , 2019, by and among the CITY OF DOWNEY, a California charter city ("City"), PCCP IRG DOWNEY, LLC, a FIF.elaware limited liability company, as to an undivided 90% interest, IRG DOWNEY, LLC, a California limited liability company, as to an undivided 10% interest (collectively, "Developer"), and US VI Downey, LLC, a Delaware limited liability company ("Buyer"). City, Developer and Ituyer are collectively referred to herein as the "Parties." A. Whereas, on March 15, 2012, the Parties entered into the Tierra Luna [Wevelopment Agreement ("Development Agreement"); B. Whereas, the Development Agreement allowed Developer to develop the Property with either the Base Project or the Enhanced Project; C. Whereas, on September 13, 2017, the parties entered into the First Amendment to the Tierra Luna Development Agreement ("First Amendment"); D. Whereas, Developer was required by Section 6.1 of the Development Agreement to make an election in writing during the first five years of the Development Agreement's term if Developer wished t•r-•r- deop the Enhanced Project on the Property; E. Whereas, Developer did not make such an election and Developer codified in writing its decision to develop the Base Project on the Property in the First Amendment; Attachment "B" 12908308.2 F. Whereas, the Developer Owned Property has been sold to Buyer, but Developer has retained the Developer Leased Property; and G. Whereas as part of the sale of the Developer Owned Property, Developer and Buyer have entered into an Operating Agreement, dated September 21, 2018 ("Operating Agreement"). NOW, THEREFORE, based upon the foregoing Recitals, which are incorporated herein by reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: IMILMINVIKSIMMEM111� �L� 1.1 Extensioti of Tenn. City, Developer and Buyer hereby agree to extend the Tenn of the Development Agreement pursuant to the authorization in Section 2.1.1 of the Development Agreement. The extended term of the Development Agreement shall commence upon the Effective Date of this Second Amendment and shall continue thereafter for five (5) years. 2.1 Notices. Section 15.28 of the Development Agreement, which was previously ,,.mended in the First Amendment, shall be further amended to add a notice address for Buyer. Such notices and communications as described in Section 15.28 shall be given to Buyer at the t. -dress set forth below: If to Buver: c/o Northwood Investors LLC 11355 W. Olympic Blvd., Suite 100 Los Angeles, California 90064 Attn: Daniel Palmieri Facsimile: (310) 943-1685 With a cot�v-tw Pircher Nichols & Meeks LLP 1901 Avenue of the Stars, Suite 1200 Los Angeles, California 90067 Attn: Real Estate Notices (DBG/ADK/5080001.5) Facsimile: (310) 201-8922 2.2 Defined Terms: Capitalized terms that are not specifically defined in this Seconi Amendment shall have the meaning assigned to those terms in the Development Agreement or the First Amendment. 2.3 Full Force and Effect. All applicable terms and provisions of the Development Agreement, the First Amendment and the Operating Agreement remain in full force and effect, except those that are specifically modified in this Second Amendment. moan= 12908308.2 2 2.4 Counterparts: This Second Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City, Developer and Buyer hereto have executed this Second Amendment the date and year first above written. "CITY" CITY OF DO EY, a Municipal corporation of the State of California "DEVELOPER" PCCP IRG DOWNEY, LLC, aDelaw,qxe li W a -y: PCCP LB IRG Downey, LLC, its 'Maiiaghig Member By: Name. Its: i IV A. "DEVELOPER" IRG DOWNEY, LLC, a California limited liabilitv co,,tuiam- By: IRU III, LLC By: S.L. Properties, Inc. By: Name: Its: 12908308.2 3 A notary public or other officer completing this certificate verifies only the identity of the individual who signe th iocument to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of 111"11 — On �V"�-C'\n 12, 20L191' before me, . . --!2A---Pec�nC&--, a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(*) whobscribed to the within instrument and acknowledged to me that lic/sllq�� exectlited the sarne in IiisIlIVA-1 -he atithorized capacity(i ��, and that by Oil tllC ilIS1111111CM the pei,son,�s), or tliceiititvLtponbelialfof\\,Iiichtfiepet*soii' acted. exectited tl10 illSti-LITIVITt. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal, C. K, RECINCIS Notary Public - California Los Angeles County Commission 0 2197743 Camm. t:xFYfs+as Jun 10, 2021 Signature 129083082 $ 2.4 Counterparts: This Second Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City, Developer and Buyer hereto have executed this Second Amendment the date and year first above written. "CITY" CITY OF DOWNEY, a Municipal corporation of the State of California "DEVELOPER" r IRG DOWNEY, LLC, a Delaware li-itited li By: PCCP LB IRG DoII wney, LLC, its Managing Member "DEVELOPER" I DOWNEY, LLC, a California limited liability company By: IRG III, LLC By: SJ. I roperties, Inc. By: Name: 12908308.2 3 A notary public or other officer completing this certificate verifies only the identity of the individual who signed thq document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Cal't"ortua County of G'�' Ay\ Qv( before me,g"'T, a Notary Public, personally appeared oAYN w -o -e- I who prove'd to ine on the basis of satisfactory evidence to be the person( 4 whose nameW is/arZ subscribed to the within instrument and acknowledged to me that he/sye/tl)6y executed the same in his/lVr/tMir authorized capacity(jog), and that by his/h$er/thqir signature(A on the instrument the person(4, or the entity upon behalf of which the personA acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signatureqq--70 12908308.2 5 1"), NAY IWNFT,'ARD(INA ,1,AR0LA'Z Not i,� jut . 0 ItS'TJ DOWNEY, LLC, MH By: US VI CP, LP, a Delaware limited partnership, its Sole Member By: BVK US VI CA GP, LLC, a Delaware limited liability company, its General Partner By: Name: V) Title: 1 1 VT By: Name: '511 k v &- V I' 5vi d�- Title: -'-v-r\i'or 12908308.2 4 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the Iruth Culness, aeckiracy, or validity of that document. State of- "4WoH+ia- County of Ale-,,, T® r, k Me instrument Me person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. 6- 1 certify under PENALTY OF PERJURY under the laws of the State ofk44t'4Hii+4iqV�r�1— foregoing paragraph is true and correct. N-.= DIANE ANDREWS iTaTkF'y No-01AN6359017 Qualified In Richmond County My Commission Expires 05-22-2021 MINUM 11K1#11. ANDIHIM A1110 A/0 -) yp , L. State of C-14i4;Driiia- ' County of A10-0 ®<H -- r3 4- 13 A� r el Lz-& ,q]y ., before me, a Notary Public, ------- ---------- will 10"i " 1.11,1111 authorized capacity(ies), and . f.his tf-ttirc(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instntinem. Y, 4- I certify under PENALTY OF PERJURY under the laws of the State of Galifemi that the foregoing paragraph is true and correct. 12908308.2 9 DIARE ANDREWS No. 01 AN6359017 Oualified In Richmond County My Commission Expires 06-22-2021 i! '.'• ! • l is SECTION 1. The Planning Commission of the City of Downey does hereby fin determine and declare that: A. On November 30, 2003, the City of Downey ("City") sold the property now known as the Promenade at Downey shopping center to PCCP IRG Downey, LLC, and IRG Downey, LLC (collectively "Developer"); and, B, On March 15, 2012 the City and the Developer entered into a Development Agreement for • - d Downey •s•, • center; and, C. On August 22, 2017, the City Council of the City of Downey approved the first amendment to the Development Agreement; and, D. The developer anr former owner of • - _•r PCCP IRG Downey,• IRG Downey,•: Owner) r - • p • Downey, -r on ♦ - • ! and, E, The City and Former and Current Owners now wish to extend the Development Agreement • - and, F. On January 24, 2019, notice of the pending application published in the Downey Patriot and mailed to all property owners within 500' of the subject site; and, G. The Planning Commission held a duly noticed public hearing on February 6, 2019, and after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearing adopted this resolution. SECTION 2. The Planning Commission further finds, determines and declares the environmental impact of the proposed project has been reviewed and has been found to be in compliance with the California Environmental Quality Act (CEQA) and is categorically exempt from CEQA, pursuant to Guideline Section No. 15301 (Class 1, Existing Facilities). SECTION 3, Having considered all of the oral and written evidence presented to it at said public hearings regarding the amendment to the development agreement, the Planning Commission further finds, determines and declares that: The requested amendment to the Development Agreement is consistent with the City's adopted General Plan. The subject site has a General Plan Land Use Designation of Mixed Use, which is intended to provide a variety of uses (retail, office, restaurant, Attachment "C" .Nesolution No. 19-3082 antertainment) within close proximity to each other. Amending the development 2greement achieves this goal by allowing the continual growth of the Promenade at Downey shopping center. Particularly, this amendment will allow the City and New ani Former Owners time to work on the development plan for the vacant 21 -acres and ansure the appropriate mix of uses is provided. .0:lm The requested amendment to the Development Agreement is consistent with the — Specific Plan. The development agreement is for the construction and operation of the Promenade at Downey shopping center. This amendment will extend the timeframe of the Development Agreement, but will not alter the permitted uses, building locations, parking requirements, landscaping, or other development standard. SECTION 4. Based upon the findings set forth in Sections 1 through 3 of this resolution, ky IN I 1i ZIN 1111 6 14111111 all aoo*I 1W SECTION 5. The Secretary shall certify the adoption of this Resolution. Ile4 Steven Dominguezhair an S City Plannino.Conn I i a I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted by the Planning Commission of the City of Downey, at a regular meeting thereof held on the 61" day of February, EO 19, by the following vote, to wit: AYES: COMMISSIONERS: Owens, Spathopoulos, Duarte and Dominguez NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None ABSTAIN: COMMISSIONERS: Frometa Mary Ca6nagh, Secretary City Planning Commission 12214 Lakewood Blvd. — PLN -19-00009 February 6, 2019 — Page 2 -�' solution No. 19-3082 Ae 74 -IM fiu� SE.COND AMII)Ml-l''1'0'1'11�'LUNA DEVEL�Mii�l- AGREEMENItIZA—T [)_y4algid aniong CITY OF-DOWNEY, ITC11 11M DOWNI"Y' I,I,C, IRR DOWNEY, LLC'; and US VI DOWNEY, l,LC 12214 Lakewood Blvd. — PLN -1-00009 February 6. 2019 — Page 3 acy-11 -,A 1101 flo r -A I M klf� City of Downey Attn: City Clerk I I I I I Brookshire Aven Downey, CA 90241 SECOND AMENDMENT TO TIE RRA LUNA DEVELOPME,NT AGREEMENT by and amona CITY OF DOWNL-_Y.,- PCCP IRG DOWNEY. LLC" .- IRG DOWNEY, LLC, and US VI DOWNEY LLC This Second Amendment to Tierra Luna Development Agreement ("Secolm Amendment") is made and entered into effective as of -, 2019, by and among t CITY OF DOWNEY, a California charter city ("City"), PCCP IRG DOWNEY, LLC, Delaware limited liability company, as to an undivided 90% interest, IRG DOWNEY, LLC, California limited liability company, as to an undivided 10% interest (collectively, "Developer' and US VI Downey, LLC, a Delaware limited liability company ("Buyer"). City, Developer a Buyer are collectively referred to herein as the "Parties." I A. Whereas, on March 15, 2012, the Parties entered into the Tierra Lui Development Agreement ("Development Agreement"); B. Whereas, the Development Agreement allowed Developer to develop the Prope"I with either the Base Project or the Enhanced Project; C. Whereas, on September 13, 2017, the parties entered into the First Amendment the Tierra Luna Development Agreement rst Amendment"); i D. Whereas, Developer was required by Section 6.1 of the Development Agreement • -ement Agreement's term if r•W& Developer wished to develop the Enhanced Project on the Property; E. Whereas, Developer did not make such an election and Developer codified writing its decision to develop the Base Project on the Property in the First Amendment; i Error! Unknown document property nome..Error! Unknown document property name./Error! Unknown document Property name. Frrur! Unknown document property name. -Error! Unknown document property name./1-28-19/Error! Unknown document property name./Error! Unknown document property name. 12908308.2 F. Whereas, the Developer Owned Property has been sold to Buyer, but Developer has retained the Developer Leased Property; and G. Whereas as part of the sale of the Developer Owned Property, Developer and Buyer have entered into an Operating Agreement, dated September 21, 2018 ("Operating Agreement"). NOW, THEREFORE, based upon the foregoing Recitals, which are incorporated herein by reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: 1. TERM OF THE AGREEMENT 1.1 Extension of Term. City, Developer and Buyer hereby agree to extend the Term of the Development Agreement pursuant to the authorization in Section 2.1.1 of the Development Agreement. The extended term of the Development Agreement shall commence upon the Effective Date of this Second Amendment and shall continue thereafter for ten (10) years. 2. MISCELLANEOUS 2.1 Notices. Section 15.28 of the Development Agreement, which was previously amended in the First Amendment, shall be further amended to add a notice address for Buyer. Such notices and communications as described in Section 15.28 shall be given to Buyer at the address set forth below: If to Buyer: c/o Northwood Investors LLC 11355 W. Olympic Blvd., Suite 100 Los Angeles, California 90064 Attn: Daniel Palmieri Facsimile: (310) 943-1685 With a coRy to: Pircher Nichols & Meeks LLP 1901 Avenue of the Stars, Suite 1200 Los Angeles, California 90067 Attn: Real Estate Notices (DBG/ADK/5080001.5) Facsimile: (310) 201-8922 2.2 Defined Terms: Capitalized terms that are not specifically defined in this Secoll Amendment shall have the meaning assigned to those terms in the Development Agreement the First Amendment. I e 2.3 Full Force and Effect. All applicable terms and provisions of the Developm I Agreement, the First Amendment and the Operating Agreement remain in full force and effe except those that are specifically modified in this Second Amendment. OEM 129083082 2 Agenda Page 93 2.4 Counterpgrts: This Second Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City, Developer and Buyer hereto have executed this Second Amendment the date and year first above written. "CITY" CITY OF DOWNEY, By:� Name: Its: "DEVELOPER" PCCP IRG DOWNEY, LLC, By: PCCP LB IRG Downey, LLC, its Managing Member By: Name: Its: - "DEVELOPER" IRG DOWNEY, LLC, Ubwia li-Fifted liabilitv coM&an ..I 10*01y: IRG III, LLC Properties, Inc. By: Name:_ Its: 12908308.2 3 Agenda Page 94 US VI DOWNEY, LLC, By: US VI CP, LP, a Delaware • partnership, its Sole Member By: BVK US VI CA GP, LLC, a Delaware limited liability 12908308.2 4 Agenda Page 95 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State • • Uounty • On mea Notary Public, personally appeared , who proved to me on the basis of satisfactory • to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) • the instrument the person(s), • the entity upon behalf • which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and • rffMTM M I Signature 12908308.2 5 Agenda Page 96 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfultiess, accuracy, or validity of that document. State of Ca li—omia County of On , before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. F, certify under PENALTY OF PERJURY under the laws of the State of California that the fioregoing paragraph is true and correct. Signature 129083082 6 Agenda Page 97 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. • , before me, , a Notary Public, f!,ersonally appeared who proved to me on the basis of satisfactory • to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their ain*i•irized at his/her/their siinaturels) • the instrument the verson(s) •, I I I" I Eq I U-10 G r -j Vill♦11 MrImooLswivog I U-Iq I certify under PENALTY OF PERJURY under the laws • the State • • that th'k foregoing paragraph is true and correct. MZMM Signature 12908308.2 7 Agenda Page 98 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Ua i omig County of On -, before me, a Notary Public, personally appeared 'who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their 'ZWAI'IAf&i zxq'zrdzu- itc� 11-cT the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. 12908308.2 8 Agenda Page 99 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. County of On , before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their ,r rhhat atr on the instrument the verson�_s or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. 12908308.2 9 Agenda Page 100 DATE: FEBRUARY 6, 2019 TO: PLANNING COMMISSION SUBMITTED BY: ALDO E. SCHINDLER, DIRECTOR OF COMMUNITY DEVELOPMENT REVIEWED BY: DAVID BLUMENTHAL, CITY PLANNER PREPARED BY: DAVID BLUMENTHAL, CITY PLANNER 00i05 (DEVELOPMENT AGREEMENT AMENDMENT) REQUEST FOR A SECOND AMENDMENT THE TIERRA LUNA (AKA, THE PROMENADE AT DOWNEY) DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DOWNEY, PCCP IRG r• - r• AND US VI DOWNEY, LLC. LOCATION: 12214 LAKEWOOD BLVD ZONING: DOWNEY LANDING SPECIFIC PLAN The City of Downey previously entered into a Development Agreement with the developer and owner of the Promenade at Downey shopping center. At the August 2, 2017 Planning Commission meeting, staff recommended, and the Commission subsequently recommended an amendment to the Development Agreement, which was approved by the City Council on August 22, 2017. The owner has now requested a second amendment to the Development Agreement. The center is now 94% leased; as a result, the developer is working on conceptual plans for the next phase of development. Accordingly, ownership is asking for a second amendment to the Development Agreement to extend the term by 10 years. Based on the analysis contained in this report, staff is recommending the Planning Commission adopt the following titled resolution: Ir• i r i `• • r• r r• r• r r• • r ii .• r The City of Downey ("City") sold the property now known as The Promenade at Downey shopping center to PCCP IRG Downey, LLC, and IRG Downey, LLC (collectively "Developer") on November 30, 2003. The City and the Developer entered into a Development Agreement for - the Promenade at Downey shopping center on March 15, 2012. The Development Agreement dictated the land to be developed, the timeline for development, the scope of development and covenants on various aspects of the development. "Development Agreements" are tools used by government agencies and private parties to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of developments. The Legislature of the State of California adopted the "Development Agreement Statute" Sections 65864, et seq., of the Government Code. The Development Agreement Statute authorizes municipalities to enter into an agreement with any person having a legal or equitable interest in real property, to provide for the development, of such property, and to establish certain development rights therein. The partnership between the City and Developer produced the Promenade at Downey shopping center, which hosts a 656,000 -square -foot shopping center and entertainment district, and has emerged as the area's new gathering spot and destination by merging retail, dining, and entertainment use on one site. The development also created 1,000 jobs through construction and continual operation of retail and restaurants. The Planning Commission, acting in an advisory capacity, must review the proposed amendments to the Development Agreement to ensure that the amendments are consistent with the City's General Plan and the Downey Landing Specific Plan. Based on its consideration of the proposed amendments to the Development Agreement, the Planning Commission shall make a recommendation to the City Council. The City Council will consider the Planning Commission's recommendations in reviewing the proposed amendments. Under state law, to approve an amendment to a Development Agreement, the City Council must find that the proposed amendments are consistent with the City's General Plan and the Downey Landing Specific Plan (Government Code section 65967.5(b)). Pursuant to these requirements, notice of the pending public hearing was published in the Downey Patriot and mailed to all property owners within 500' of the subject site on January 24, 2019. 11 Rig I RI k" The developer and former owner of the Promenade, PCCP IRG Downey, LLC and IRG Downey, LLC ("Former Owner") sold the property to US VI Downey, LLC ("New Owner") on September 21, 2018 and entered into an Operating Agreement with the New Owner to cooperatively develop the remaining 21 acres of vacant land adjacent to the Promenade fronting Bellflower Boulevard. The Former Owner currently leases the remaining 21 acres adjacent to the Promenade from the City of Downey. The Former Owner wishes to start the conceptual site plan, design, marketing, and land assembly of the vacant 21 acres to compliment the Promenade. With this in mind, they have requested additional time to develop the site. The Development Agreement provides for the build -out of the adjacent 21 acres and the adaptive reuse of the former NASA and Vultee buildings that front onto Lakewood Boulevard. The City has been interested in retaining the historical context of the NASA and Vultee buildings and providing an end use that could serve the community and compliment the center. The Operating Agreement entered into between the New and Former Owners allows them to work cooperatively in the future build out of the entire Promenade area. Currently, the Development Agreement is set to expire on March 14, 2019; however, in order to plan appropriately for a project of this size they have requested a 10 -year extension of the term of the Development Agreement, which would start if the City Council approves the request. A time extension will 12214 Lakewood Blvd. — PLN -19-00005 February 6, 2019 — Page 2 Agenda Page 2 also allow the City to work with the New and Former Owners on the final conceptual development plans for the total combined site. DEVELOPMENT REVIEW COMMITTEE This request did not require review by the City's Development Review Committee. ENVIRONMENTAL ANALYSIS Staff has reviewed the proposed application for compliance with the California Environmental Quality Act (CEQA). Upon completion of this review, it has been determined that this request is categorically exempt from CEQA, pursuant to Guideline Section No. 15301 (Class 1, Existing Facilities). Categorical Exemptions are projects, which have been determined not to have a significant effect on the environment and have been exempted from the requirements of CEQA. Class 1 consists of projects that involve no or negligible expansion of the existing building or use. Inasmuch as amending the Development Agreement will not alter the permitted uses for the site, result in the construction of new buildings, or increase the intensity of the existing uses, staff feels that this request qualifies for this exemption. FINDINGS In order to approve the amendment to the Development Agreement, the following two findings need to be adopted: A. The requested amendment to the Development Agreement is consistent with the City's adopted General Plan. The subject site has a General Plan Land Use Designation of Mixed Use, which is intended to provide a variety of uses (retail, office, restaurant, entertainment) within close proximity to each other. Amending the development agreement achieves this goal by allowing the continual growth of the Promenade at Downey shopping center. Particularly, this amendment will allow the City, New and Former Owners time to work on the development plan for the vacant 21 -acres and ensure the appropriate mix of uses is provided. B. The requested amendment to the Development Agreement is consistent with the Specific Plan. The development agreement is for the construction and operation of the Promenade at Downey shopping center. This amendment will extend the timeframe of the Development Agreement, but will not alter the permitted uses, building locations, parking requirements, landscaping, or other development standard. CORRESPONDENCE As of the date that this report was printed, staff has not received any correspondence regarding this application. 12214 Lakewood Blvd. — PLN -19-00005 February 6, 2019 — Page 3 Based on the analysis contained within this report staff is concluding that allowing a second amendment tothe Development Agreement would be aprudent measure toensure the continual growth ofthe Promenade atDowney shopping center. Furthermore, staff ie concluding that the proposed amendment is consistent with the General Plan and the Downey Landing Specific Plan. Amsuch, staff iorecommending that the Planning Commission recommend that the City Council approve msecond amendment tothe Tierra Luna Development Agreement between the City of Downey, PCCP |RC9 Downey, LLC. |RG Downey, LLC and US VI Downey, LLC to add a 1 0 -year extension of the term of the Development Agreement. A. Napo B. Draft Resolution C. Amendment toTierra Luna Development Agreement D. Second Amendment to the Tierra Luna Development Agreement 12214 Lakewood Blvd. -PLm-1n*n000 03EIWE= 12214 Lakewood Blvd. — PLN -19-00005 February 6, 2019 — Page 5 i • • -Ulf' AGREER]Ful TAE CITY•• - • LLC, IRG • DOWNEY, LLC TO AMEND THE TERM OF THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS: SECTION 1. The Planning Commission of the City of Downey does hereby find, determine and declare that: A. On November 30, 2003, the City of Downey ("City") sold the property now known as the Promenade at Downey shopping center to PCCP IRG Downey, LLC, and IRG Downey, LLC (collectively "Developer"); and, B. On March 15, 2012 the City and the Developer entered into a Development Agreement for the Promenade at Downey shopping center; and, C. On August 22, 2017, the City Council of the City of Downey approved the first amendment to the Development Agreement; and, D. The developer and former owner of the Promenade, PCCP IRG Downey, LLC and IRG Downey, LLC ("Former Owner") sold the property to US VI Downey, LLC ("New Owner") on September 21, 2018; and, E. The City and Former and Current Owners now wish to extend the Development Agreement for ten years; and, F. On January 24, 2019, notice of the pending application published in the Downey Patriot and mailed to all property owners within 500' of the subject site; and, G. The Planning Commission held a duly noticed public hearing on February 6, 2019, and after fully considering all oral and written testimony and facts and opinions offered at the aforesaid public hearing adopted this resolution. SECTION 2. The Planning Commission further finds, determines and declares the environmental impact of the proposed project has been reviewed and has been found to be in compliance with the California Environmental Quality Act (CEQA) and is categorically exempt from CEQA, pursuant to Guideline Section No. 15301 (Class 1, Existing Facilities). SECTION 3. Having considered all of the oral and written evidence presented to it at said public hearings regarding the amendment to the development agreement, the Planning Commission further finds, determines and declares that: The requested amendment to the Development Agreement is consistent with the City's adopted General Plan. The subject site has a General Plan Land Use Designation of Mixed Use, which is intended to provide a variety of uses (retail, office, restaurant, Resolution No. 19 - Downey Planning Commission entertainment) within close proximity to each other. Amending the development agreement achieves this goal by allowing the continual growth of the Promenade at Downey shopping center. Particularly, this amendment will allow the City and New and Former Owners time to work on the development plan for the vacant 21 -acres and ensure the appropriate mix of uses is provided. 2. The requested amendment to the Development Agreement is consistent with the Specific Plan. The development agreement is for the construction and operation of the Promenade at Downey shopping center. This amendment will extend the timeframe of the Development Agreement, but will not alter the permitted uses, building locations, parking requirements, landscaping, or other development standard. SECTiN.4. Based upon the findings set forth in Sections 1 through 3 of this resolution, the Planning Commission of the City of Downey hereby recommends that the City Council of the City of Downey approve the amendments to the Development Agreement, which are outlined in Exhibit A. SECTION 5. The Secretary shall certify the adoption of this Resolution, PASSED, APPROVED AND ADOPTED this 6th day of February, 2019. Steven Dominguez, Chairman City Planning Commission I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted by the Planning Commission of the City of Downey at a regular meeting thereof, held on the 6th day of February, 2019, by the following vote, to wit: AYES: COMMISSIONERS: NOES: COMMISSIONERS, ABSENT: COMMISSIONERS: ABSTAIN: COMMISSIONERS: Mary Cavanagh, Secretary City Planning Commission 12214 Lakewood Blvd. — PLN -19-00005 February 6, 2019 — Page 2 1�igtLO;Uv VJS1[A-;U01U&--tj" CITY OF DOWNEY 'CITY CLEeK City of Downey Attn: City Clerk IlIliellp" )Off[ �--Tlxwq -XW6•TIEL A by and between CITY OF DOWNEY and PI IRG DOWNEY, LII a Delaware limited liability company, as to an undivided 90% Interest and IRG DOWNEY, ILLC, a California limited liability company, as to an undivided 110% Interest MITIM about:blank Agenda Page 8 6/28/2018 F1 4$ a a m FEES: 44.00 TAXES: 0.00 OTHER, 0.00 PAID: 44.00 BIIVYI��II�III�In�IIVIIIIINnI�n�IIIIWIIf��V�lfl LEADSHEET 201806270970027 F� F 009177857 A 01 SECURE Daily E57 -Tierra Lu,& Agmt Agenda Pape 9 about:blank b/28/2018 PAGE 2 changes will occur to building locations, parking requirements, landscaping, or other development standard. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES ORDAIN AS FOLLOWS: SECTION 1. Based upon the finding's got forth in this dtdinaride, the City Council of the City of Downey hereby approves the Amendments to the Development Agreement, which are outlined in Exhibit "B", which is attached hereto and made a part hereof. SECTION 2. If any section, subsection, paragraph, sentence, clause or phrase of this Ordinance is declared by a court of competent jurisdiction to be unconstitutional or otherwise invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance, and each section, subsection sentence clause �shrase or --ceortion thereof, irres-i.,ective of the fact that any one or more sections, subsections, phrases, or portions be declared invalid or unconstitutional. SECTION 3. The City Clerk shall certify the adoption of this Ordinance and cause the same to be published in the manner prescribed by law. APPROVED AND ADOPTED this 12th day of Septemb FER WDO VASQUEZ, Mayor ATTEST, CMC IAIAWALVI C-aIA'111T Interim City Clerk ORDINANCE NO.17-1383 PAGE 3 1 0 1 •- •' i0, • a U a Regular Ifleeting ot the City Uouncill oT ine Uny 3T Zwu Z, 2nd adopted at a Regular Meeting of the City Council of the City of Downey held on the 12th day if September, 2017, by the following vote to wit: AYES: Council Members: Pacheco, Saab, Ashton, Mayor Vasquez NOES: Council Member: None. ABSENT: Council Member: None. ABSTAIN: Council Member: Rodriguez I FURTHER CERTIFY that a summary of the foregoing Ordinance No. 17-1383 was published in the Downey Patriot, a newspaper of general circulation in the City of Downey, on August 24, 2017 (after introduction), and on September 14, 2017 (after adoption including the vote thereon). It was also posted in the Regular posting places in the City of Downey on the same dates. &FIL12047-AW-1 IN IN F -A Big 1.11 Vil I The f0MOlng Instrument Is 11 full, true and COnCt COPY Of the original on file in this office City Clark of the Clly �1 nay Ail [4 -.qt n- NEU WEME3�� 01 r� r� ewmr LEADSHEET 2012042001700V 11111IN1111111 DAR - Title COWanY (Hard Copy) THIS FORM 13 NOTTO BE DUPUCATED LL Oil I F we 11UNI: MYOFDOWNEY I I I I I Brookshire Downey, CA 90241 Attn: City Clerk 44 2 8430& (Space Above This Line is for Recorder's Use Only) This Development Agreement is recorded at the request and for the benefit of the City of Downey and is exempt from the payment of a recording fee pursuant to Government Code § 27383. TTERRALUNA by and between 'CrrY OF DOWNEY and ACCP IRG DOWNEY, LLC, a Delaware limited liability company, as to an undivided 90% Interest, and IRG DOWNEY, LLCO a California limited liability company, as to an undivided 10% interest 2698521.?AMwapDM3 01911 •11-1211 MAas --A Agenda Page 11 M 1 1' 2. TE.............................................................................................................................11 2.1 Term...................................................................................................................1 l 2.1.1 Term without Enhanced Project Election..............................................11 2.1.2 Term with Enhanced Project Election....................................................11 2.2 Provisions Surviving Expiration of Term........................................................... I 1 3. DEVELOPMENT PROPERTY 3.1 Applicable Regulations; Vested Right to Develop ............................................. 11 3.2 Tentative Subdivision Maps ......................................................... ............12 4.2 3.3 Processing of Applications and Permits.............................................................12 4.3 3.4 Other Governmental Permits ............................................................................12 4.4 3.5 Subsequent General Plan Amendments and Zone Changes...............................12 3.6 Timing of Development..........:................................................:.........................13 3.7 Reservations of Authority...................................................................................13 4.4.3 Non -Waiver By City..............................................................................16 3.7.1 Consistent Future City Regulations........................................................13 4.4.4 [RESERVED]........................................................................................17 3.7.2 Overriding State and Federal Laws and Regulations .............................14 4.4.5 Survival of Audit Rights.....................................................................17 3.7.3 Public Health and Safety ....................... . ......................I.,.............: 14 3.7.4 Uniform Construction Codes ........................................................ .......... 14 3.7.5 Police Power...........................................................................................14 3,8 Large Format Retail Development Parking Easement.....................................14 3.9 Signature Entrance......................................s.......................................................15 3.14 City Infrastructure Improvements................................................................... 15 3.11 Flexible Office Space on Developer Leased Property........................................15 4. FEES, CONDITIONS, PUBLIC BENEFITS, AND AUDIT RIGHTS ......................... 15 4.1 Temporary Fee Rebate.................................................................................... 15 4.2 Other Fees and Charges.....................................................,...............................15 4.3 [RESERVED].............................................................................. ..................16 4.4 Accounting and Review......................................................................................16 4.4.1 Maintenance of Books and Records.......................................................16 4.4.2 Allocation of Costs and Expenses..........................................................16 4.4.3 Non -Waiver By City..............................................................................16 4.4.4 [RESERVED]........................................................................................17 4.4.5 Survival of Audit Rights.....................................................................17 5. GENERAL DEVELOPER COVENANTS .................................................................... 17 5.1 Commencement of improvements and Completion...........................................17 5.2 Large Format and Remaining Commercial Development Retailers ..................17 5.3 [RESERVED]...................................................................................................17 5.4 City Right to Inspect........................................................................................ 17 5.5 Developer Attendance at City Meetings............................................................ Is 660X128110-0002 26911521.743114112 Agenda Page 16 w FMI 5.6 Maintenance Covenant.......................................................................................18 Default Remedies........................................................................................... 23 5.6.1 General Maintenance of Property ...........................................................18 Developer's Exclusive Remedy......................................................................... 23 9.4 5.6.2 Graffiti..................................................................................................18 5.6.3 Lien Rights............................................................................................. 19 6. DEVELOPER COVENANTS RELATING TO TRE ENHANCED PROMCT..: ........ 19 6.1 Developer Election To Develop Enhanced Project............................................19 6.2 Applicability of Base Project Covenants............................................................19 6.3 Operating Covenant............................................................................................19 6.3.1 Conduct of Required Operations............................................................19 6.3.2 Annual Grant Payment................................................:..........................19 6.3.3 Certification ............................................................................................20 6.3.4 Use Restriction ......... .................................. ........ ......... I......... i ................ 20 . 6.3.5 Covenant to Maintain Property on Tax Rolls ........................,............... 20 6.3.6 No Conveyance to Tax Exempt Entity ................................................... 20 6.3.7 Quality of Improvements...................................................................... 20 6.4 Covenants Running with the Land.................................................................... 21 7. NON-DISCR[ ATION.............................................................................................21 7.1. Obligation to Refrain fxom Discrimination..............................................:......... 21 7.2 Form of Non-discrimination and Non -segregation Clauses...............................21 7.2.1 In dceds................................................ .................................. a................ 21 7.2.2 In leases.................................................................... ....................... 21 7.2.3 In contracts................................................................................... .. 22 FIRE STATION DEDICATION AND DEVELOP ........................................... 22 8.1 Election to Require Development of Fire Station Site ....................................... 22 8.2 Design and Construction Costs........................................................................... 22 8.3 Subdivision of Fire Station Site............................................................e ............ 22 8.4 Developer's Rental of Fire Station to City.......................................................... 22 8.5 Conveyance of Fire Station and Fire Station Site to City ................................... 22 9. DEFAULT, REMEDIES, AND TERMINATION ........................................................ 23 9.1 Notice and Opportunity to Cure.........................................................................23 9.2 Default Remedies........................................................................................... 23 9.3 Developer's Exclusive Remedy......................................................................... 23 9.4 Force Majeure.....................................................................................................24 10. ANNUAL REVIEW..............................................................................I...............24 10.1 • Timing of Annual Review.................................................................................. 24 10.2 Standards for Annual Review...................................................................... 24 10.3 Certificate of Compliance................................................................................... 25 11. MORTGAGEE RIGHTS.............................................................................................. 25 11.1 Encumbrances on the Property.......................................................................... 25 11.2 Mortgagee Protection........................................................................................25 MOM l0 -M2 2698921.7 A3/1 4/12 BM 12. ASSIGNMENT .,...~_.~~....~~~-.~~~~_-_..^.,~-_--~~~~~.~~^~°~~~.._...~~-~26 1.2.1. Right&NAmsign~~~~~' 26 12.2 Release Upon Transfer .,._~.~..-...^~..~~.~^,~~,,,,,~.^._,..,~.,26 12,3 Assignee Subject tmTerms of Agreement ___~_~`~~___~_~_~,..,_,~,,.,.~,,,,,26 13. INSURANCE AND INDEMNITY --..,~.-.--'_'~.~.,^,.,,,.~_,_~,^^......~.~,,,,,~~^,27 83.1 Insurance ............................................................................................................. 27 13'1^1 Base Project Insurance ...__.--.-_--.,,~-'-...~-~~~...-,.....~~..27 13'K.2 Enhanced Project Insurance .................................................................... 27 13,1-3 Insurance Does Not Relieve Liability ..^,~._-^~,^~.~~,,,^^,.~,,,,,,~,27 13.1'4 Default for Failure WoMaintain Insurance .............................................. D7 13.2 Indemnities by Developer -'~.~~-~^-~_....^~'~~^^-~-^^..'~'^'~~~'~~'~~~'~~''~~^27 13.2.1 General Indemnity .................................................................. ~.~~..,,,~27 13�L2 Prevailing Wage Notice of Labb' � Code Section 1781, .......~........._-.--~...,~~.....~~.^.,.~..-~-~.27 13.2.3 Environmental Indcmnity ,.~~~. .: .~~~..~.28 13,3 Indemnification Procedures ................................................................................ 29 13.3.1 Prompt Notice ...... ......... .............................. ~~~~...',~'^,,...~._.......... ,.~,29 13.3.2 Cooperation ~~_~~~~~~.-,~.'.~^,.,-~~.~.~....^..~~_~.~-~_~~~.~..~.~29 13.3.3 Settlement -.~~~~.~~~.~.~~...~~.-...~-~~...-~-.~~'_~~~..-~~'~29 13.3.4 -_.^~--~.^..~.~^~_~~.~~..^^..~~~~~~~~....~~..,.39 14, THIRD PARTY LEGAL CHALLENGE ........................................................... ........... 29 14L1 Developer Covenant $uDefend this.................. ~~.......................... 29 15, MISCELLANEOUS ^---'~ ~..~.~30 15.1 Compliance with Applicable Law ~,~~~..-~~~.~_~-.,-.~'~~'~.~~-~~^..~..~.^30 15.2 Covenants ................................. ~~....~..~`,~...,~_..~~~�..~~.~-.~~...,-,........ 30 85.3 Mutual Covenants .................................................... ................ ~~,~~,............... 30 15/4 Recordation of Agreement ....~.._-..~-.......~--..^..-'......-.-..--.~.~~.~30 15:5 Constructive Notice and Acceptance ~~~.-..~..~...'~,.........~...~--'._._..-30 � 15.6 Successors in Interest .....--.,....~~.....r..~...,_....^,-.,......~.....~.............. ..30 15.7 City Manager Implementation -~~----~-'^^-'-'~~'~`---~.^'~^-..^_....-~.'..30 15.8 Political Reform Act ........................................................................................... 31 15.9 Survival of ,_,^^^,,,,^^_^~~-,^_~^_,,~^,,,,__,,,,^~_^,,,,,_,_^_~^.~~,,,,~,..,31 15.10 Entire Waivers and Amendments ................................................... 81 15.11 Principles of Interpretation .._-~......_.'..~,.~~..'^^~~,.-~.,...~~.-.,~'.~...31 15.12 Incorporation mfRecitals ................. ........ .~........ _,.____^._~~~_.~.,,~~~~-~11 15.13 Section and Section and Article References .......`....... ...... : ................ 32 15.14 Singular and Plumal..~~-~......~....^~.~~~~.~~~~°~.^.~,-.^,~...^^...^..'^,~... 3232 0802m1"002 Ag en da Page 11 66 It page 15.16 Time ofEssonce.........................................1........................................................ 32 15.17 Further Actions and Instruments...................................................................... 32 15.18 Severability ..................................................................................32 15.19 Legal Expenses ................................................................................................. 32 15.20 No Third Party Beneficiaries .............................................................................. 33 15.21 Relationship of Parties .................... e. ....................... .......... N ..................... ..... ..... 33 15.22 Development as a Private Undertaking.............................................................. 33 15,23 Inspection of Books and Records..................................................................... 33 15.24 Estoppel Certificate............................................................................................ 33 15.25 Applicable Law; Venue...................................................................................... 34 15.26 Non -Liability of City Officem and Employ .................................................. 34 15.27 Non -Liability of Developer's Officers and Employees......................................34 15.28 Nodces............................................................................................!.................34 15.29 Representation as to Ownership.... ..... 15.30 Representation as to Ownership......................................................................... 35 15.31 Authority to Execute........................................................................................... 35 15.32 Authority to Execute........................................................................................... 35 15.33 Execution ofAgreement; Counterparts..se.....e. ...................................................35 15.34 Exhibits...............................................................:...............................................35 6 8 01021 1 1 04 0 02 MIS2t.7 403114/12 �lv- " 4 sh , I Vii -Ail MUMMY :1 an undivided 10% interest (collectively, "Developer"), City and Developer are collective referred to hereiii, as the "Parties" and individually as a "Party," i _R E!Q!.T A, L S A. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the State of Califomia adopted the 'Development Agreement Statute," Sections 65864, ot seq., of the Government Code. The Development Agreement Statute authorizes City to enter into an t4K# [WL4LI001016� IM I I MUSATIV M MMMU-1 I Ito N17,1141 Mi7am I JJflrli B. Developer owns that certain real property consisting of approximately 58 acres of land area located at 12214 Lakewood Boulevard in the Downey Landing Specc Plan Area, within the City of Downey, County of Los Angeles, State of Cali fornia, as more particularly described In the legal description attached hereto as � and depicted on ENhibit "Developer Owned Property"). C. Developer holds a leasehold interest in that certain reit property consisting of approximately 20 acres of land area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area, within the City of Downey, County of Los Angeles, State of California, as more particularly described in the legal description attached as B?chibit and depicted on Exhibit "D." (the "Developer Leased Property"). The Developer Owned Property and die Deve—lowr Le petty abut each other. D. The ' Developer Owned Property and the Developer Leased Property are collectively described as the "Property." The Property is depicted on gxhibit "E�l E. The Amended Downey Landing Specific Plan ("Specific Plan") allows for the development of the Property with a mixed-use commercial development consisting of up to 1,035,000 square feet of non -theater commercial/retail floor area; an additional 65,000 square feet of commercial/retail floor area for a theater use, 300,000 square feet of office floor area; and 116,000 square feet of hotel floor area (150 hotel rooms). The Specific Plan contemplates that, subject to City's approval if placed on the Developer Owner Property, an addonal 200,000 square feet of office floor area may be incorporated into the proposed development so long as the retail floor area is decreased by 200,000 square feet and the total square footage of the proposed development does not exceed 1,516,000 square feet. Development of the Property in any manner consistent with the Specific Plan and the remaining Exng Land Use Regulations is hereinafter referred to as the "Base Project." 2699521.71IMmWOM G. Developer desires to develop the Property in a specific configuration that consistent with the Specific Plan, consisting of the Large Format Retail Development, t Remaining Commercial Development, the Theater Development, the Office Developmen� a the Hotel Development. Developer's development of the Property within the parameters $1 forth in this Recital, and in a manner consistent with the Existing Land Use Regulations, hereinafter referred to as the, "Enhanced Project." H. Through this Agreement, the City has committed to provide certain additional L 7his Agreement is intended to be, and shall be construed as, a development agreement within the meaning of the Development Agreement Statute. This Agreement will eliminate K. On December 21, 2011, the Downey City Planning Commission ("Planning Commission") hold a public hearing on this Agreement, made certain findings and deteminations with respect thereto, and recommended to the City Council of the City of Powney ("City Council") that the Agreement be approved. ! R. R. , W. WTX -I WN Ni , 11"MrWIMMIMMIT I! 7M Or= W InaRce L I Wappmving this Agreement. --__�' -2- AGREEMENT Based upon the foregoing Recitals, which are incorporated herein by this reference, and for good and valuable. consideration, the receipt and sufficiency of which is hereby acknowledged, City and Developer hereby agree as follows: The following terms when used in this Agreement shall have the meanings set forth below: I.1 The term "Action" shall mean any proceeding between City and Developer seeking enforcement of any of the terms and provisions of. this Agreement. 1.2 The term "Agreement" shall mean this Development Agreement by and among City and Developer. 1.3 The term "Annual Review" shall have the meaning ascribed in $ection 10.1 of this Agreement. 1.4 The term "Bankruptcy Law" shall mean Title 11, United States Code, and any other or successor state or federal statute relating to assignment for the benefit of creditors, appointment of a receiver or trustee, bankruptcy, composition, insolvency, moratorium, reorganization, or similar matters. 1.5 The term "Bankruptcy Proceeding" shall mean any proceeding, whether voluntary or involuntary, under any Bankruptcy Law. 1.7 The term "Base Project" shall mean Developer's development of. the Property within the parameters set forth in Recital E, and in a manner otherwise consistent with the Existing Land Use Regulations. 1.8 The term "CEA" shall mean and refer to the California Environmental Quality Act, Public Resources Code Sections 21000, et seq. 1.9 The term "Certificate of Occupancy" shall mean A Certificate of Occupancy as defined in the Uniform Building Code, 2010 Edition, published by the International Conference of Building Officials, as may be amended .from time to time. 1.10 The term "Ce ''cation" shall mean a written certification provided on or before February 15 of each year during the Term, signed by Developer's managing member (c) certifying its compliance with the operating covenant and all other covenants and restrictions set forth in Article 6 for each Compliance Year for which Developer seeks a Grant (if Developer makes the election authorized by Section 6.1); provided, however, that this portion of the Certification shall not be required unless Developer elects to develop the Enhanced Project under 2698731.1h'MuwgabM8 -3- 03811 q -MM -1 A-124TWin Section 6.1 of this Agreement, and (it) demonstrating Developer's good faith compliance all terms of, this Agreement for purposes of conducting the annual review required by Section 10. 1.11 The term "City" shall mean the City of Downey, a California Charter City. 1.12 The term "City Council" shall mean the City Council of, the City of Downey. 1.13 [RESERVED] 1.14 The term "City Fees and Charges" shall mean Development Fees and City Processing Fees, to the extent such fees are collected by and on behalf of City. 1.16 The term "City Parties" shall mean City, City Council, City officers, employees, attorneys and agents. 1.17 The term "City Processing Fees" shall mean all fees charged by and on behalf of the City in connection with the processing, review, and consideration of applications for development, including any periodic updates thereto to reflect changes in the costs of processing, review, and consideration of applications.. 1.18 The to "Claim" shall mean any claim, loss, cost, damage, expense, liability, Hon, action, cause of action (whether in tort, contract, under statute, at law, in equity or otherwise), charge, award, assessment, fine or penalty of any kind (including consultant and expert fees, Legal Costs, and expenses and investigation costs of whatever kind or nature), and any judgment. Without limiting the foregoing, "Claims" include any matter that results or arises in any way from any of the following: (i) the noncompliance by Developer or its contractor with any applicable local, state and/or federal law or regulation, including, without limitation, any applicable federal andlor state labor laws or regulations (including, without limitation, if applicable, the requirement to pay state and/or federal prevailing wages and hire apprentices); (2) c implementation of labor Code Section 1781 and/or Davis -Bacon, or any other similar law or regulation; and/or (3) failure Developer to provide any required disclosure or identification as required by Labor Code Section 1781 and/or Davis Bacon, as the same may be amended from time to time, or any other similar law or regulation. 1.19 [RESERVED] 1.20 The term "Compliance Year" shall mean and refer to a period of one year. The first Compliance Year commences on the Operation Period Commencement Date and ends on the anniversary of the Operation Period Commencement Date. The second through twentieth Compliance Years follow thereafter. 1.21 The term 01Defaulting Party" shall have the meaning set forth in Section 9.1, 2698521.71IM®neSeDM9 028110 MM-14-12107MAm M 1.22 The term "Davie -Bacon" shall mean , 40 U.S.C. Section 3141, et seq., and the regulations promulgated thereunder set forth at 29 CFR Part 1, as the same may be amended from time to time, or any other similar law or regulation. 1.23 The term "Developer" shall mean the individual or entity which owns fee title to the Developer Owned Property, or any portion thereof, and holds the leasehold interest in the Developer Leased Property, or any portion thereof, and any permissible successor or assignee to the rights, powers, and responsibilities of said individual or entity hereunder, in accordance with Section 12 of this Agreement. 1.24 The terns "Developer Leased Property" shall mean that certain real property that abuts the Developer Owned Property, and consists of approximately twenty (20) acres of land area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area, within the City of Downey, County of Los Angeles, State of California, as more particularly described in the legal description attached as Exhibit "C" and depicted on f. xhibit ""D." 1.25 The term "Developer Owned Property" shall mean that certain real property consisting of approximately fifty eight (58) acres of land area located at 12214 Lakewood Boulevard in the Downey Landing Specific Plan Area, within the City of Dowf ey; County of Los Angeles, State of California, as more particularly described in the legal description attached hereto as Exhibit "A" and depicted on Exhibit "B" (the "Developer Owned Property"). 1.26 The term "Developer Representative" shall have the meaning set forth in Section 5.5. 1.27 The term "Development Agreement Statute" shall mean Sections 65864 through 65869.5 of the California Government Code, as the same may be amended from time to time. 1.28 The term "Development Fees" shall mean all fees collected by and on behalf of the City that are enacted by the City at any time pursuant to the Mitigation Fee Act, Government Code sections 66000 et seq. 1.29 The term "Effective Date"' shall mean March 15, 2012. 1.30 The term "Enhanced Protect" shall mean Developer's development of the Property within the parameters set forth in Recital G, and in a manner otherwise consistent with the Existing Land Use Regulations. 1.31 The term "Environmental Losses" means any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, attorney fees, disbursements and costs of attorneys, environmental consultants and other experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever that may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded against, City directly or indirectly relating to or arising from any Environmental Matters arising during or from Developer's ownership or use of the Property. 2696529.7AMwag6AMS 0281 90-000M.14.92/rWaa -5— 1.32 Tfm term "Environmental Matters" means (i) the presence of Hazardous Substances on, in, under, from or affecting all or any portion or the Property; (U) the storage, holdin handlinp, release threatened release d' h monitoring, notification or other precaudonary measures that may, at any lime, bcoo e nece i i ir r# TIT is # L 1.33 The term "Existing Land Use Regulations" shall mean the General plan, the Specific Plan, the MOA (which is pan of the Specific Platt) the Zoning Code,; the Municipal Code, Maps, and all other ordinances, resolutions, rules, and regulations of City governing development and use of the Property in effect as of the Effective Date, including without limitation the permitted uses of the Property, the density and intensity of use, maximum height and size of proposed buildings, provisions for the reservation and dedication of land for public purposes, and, subject to the following sentence, construction standards and specifications. The term "Existing Land Use Regulations" does not include the Uniform Codes pertaining to construction adopted for general application in City. The Specific Plan provides that in the event of a conflict between the provisions of the Specific Plan and the provisions of the Zoning Code, the provisions of the Specific Plan control. 1.34 The term "Equity Interest" shall mean all or any part of any direct or indirect equity or ownership interests) (whether stock, partnership interest, beneficial interest in a trust membership interest, or other interest of an ownership or equity nature) in any entity at any tier of ownership that directly or indirectly owns or holds any ownership or equity interest in a Person. MMER2900 1.36 The term "Fire Station" shall mean a minimum of an eight thousand (8,000) to square foot portion of Building I that is required to be preserved in place by the MOA, The Fire Station shall be appointed with amenities and facilities that are the functional equivalent of those at a typical fire station headquarters existing at the time of the development of the fire Station. 2698321.7AMmOOMS 4BAH10�0002d3-i4-13AT6.f11#a -b-' NEMEM� 1 0 fQ �i Ad i "I K I. (I I ; I ; a hill r9*1 fM 14 1 N ([*I =t if MY71= jj I I .......... Downey Fire Department, as reasonably determined by the Fire Chief of if Fire Department. 1.39 The term "Fire Station SW shall mean a site within that portion of the Property comprising approximately 38,000 square feet together with associated parking, depicted on 1.40 The term "Floor Area" shall mew the total area of all floors cont4ned within the exterior walls of aft buildings on the Property. 1.41 The term "General Plan" shall mean and refer to the City of Downey Gene Plan, as said General Plan exists as of the Effective Date. I and conditions of this AgMeeme commencing on June 0 of the first year after which the ............ 74I: ?0= gel — 1.43 The term "Hotel Development" shall mean 116,000 square feet of floor area (I Mqk-mz, T Arm shall constitute "Hotel Development" under this Agreement. 20852LIAM&UPDMS 0211to-00VA-14-MM114C -7- r• i t' t : 1 • r- ii It I t' a+ •'= i' t r tt t a � t t 1.45 The term "Improvements" shall mean all commercial 'improvements, landscaping, parking, and other related appurtenances to be constructed on, under, about or r: i the Property! i i by this Agreement. •, r of r { bank Federal or `:• • r o ,r ,t it y: 1 . TX . t ` y • ! `: 1 :. it , •,: investmentestate investment trust (or an umbrella partnership or other entity of which a real estate is •Federalor or guaranteeing mortgage loans, investment bank or a subsidiary of a Fortune 500 company (such as AT&T Capital Corporation or General Electric Capital Corporation), (b) any Person that is a wholly ownedsubsidiaryof or r: t t: ofanyone or moretthe'{:>• described in of ZZEEZEMM �1.49 e r ' 1.50term"Large Vormat Retail Development" r of LU f0 square feet of floorof MWI development sr ,.a over x retail establishments,rowhichf comprises isquare feet of floor area, which shall be constructed if Developer makes the election under Section 6.1 to build the Enhanced Project. A. 1.51 The tem "Legal Costs" shall mean, for any Person, all actual and reasonable costsrexpenses such Personproceeding (or other matter for C Person is entitled to be reimbursed for its Lepl Costs), including reasonable attameys! fees, court costs and expenses, including in or as . result of any: (a) Bankruptcy (b) litigation between the Parties; (c) negotiating or documenting arty agreement with a third party requested by Party,t requirement or •uest that such Person or i, r yees act as a witness in any proceeding regarding this Agreement or the other Party; and (e) review or approval that the other Party requests of such Person. All references to Legal Costs shall include the salaries, benefits and costs of in-house or contract general counsel to City or Developer, respectively, and the lawyers employed ii office ocounsel;i provide legal services regarding a particular matter, adjusted to or billed at an hourly rate and multiplied by the time spent on such matter rounded to increments of one-terith of an hour, in addition to Legal Costs of outside counsel retained by City or Developer, respectively, for such matter, 1 ti Z 0281 ri 1.52 The term "Maintenance Deficiency" shall mean an occurrence of an adverse condition on any area of the Property that is subject to public view in contravention of the general maintenance standard described in Section 5.6.1, below. 1.53 The term "Maximum Fee Sharing .Amount" shall mean three million eight hundred thousand dollars ($3,800,000). 1.54 The term "MOA" means that Memorandum of Agreement by and among National Aeronautics and Space Administration, the General Services Administration, the California State Historic Preservation Officer and the City of Downey. 1.55 The term "Mortgage" shall mean a mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Property, or a portion thereof or interest therein, is pledged as security, and contracted for in good faith and for fair value. 1.56 The term "Mortgagee" shall mean the holder of a beneficial interest under a Mortgage, or any successor or assignee of any such Mortgagee. 1.57 The term "Municipal Code" shall mean and refer to the City of Downey Municipal Code, as the Municipal Code exists as of the Effective Date. 1.59 The term "Non -Defaulting Party" shall have the meaning set forth in Section 9.1, I The term -office Deveiopmene, shall mean 300,000 square fact of floor area , development for office „1 The terni "Operating Period"s period , Opemdon Period Commencement Date and ending on thereof. 1.62 The term "Operation i Commencement Date"and refer to the date on :qc Opestablished. 1.63 The term "Parties" shall rwan Developer p; successors and assigns. 1.64 The term "Person" shall mean any association, corporation, government, individual, joint venture, joint-stock company, limited liability company, partnership, trust, unincorporated organization or other entity of any kind. 1.65 The term "Political Reform Act" shall mean Government Code section 18000 et seq. 1.66 The term "Property" shall mean the Developer Owned Property and the Developer ,perty, asjointly depicted r 20021.7/iMaep ONO 029110-0002/9.19-121JTMAn -9+ 1.74 The term "Zoning Code" shall mean and refor to the City of Downey Zoning Code, as said Zoning Code exists as of the Effective Date of this Agreement, and as it may further be amended by City from time. 2.1.1 Term without EnLianRc Sub ec .2, if Developer does not make the election authorized by Section 6.1 within the time required by Section 6. 1, the Term shall commence on the Effective Date and shall continue thereafter for a period of seven (7) years from and after the 131kctive Date, unless this agreement is terminated, MIER; MIM 2.1.2 Temi with Enhanced-±r_oLect Election. Subject to Section2.2, if Developer makes the election authDrized by Section 6.1 within the time required I Section 6.1, the Term sbil commence on the Effective Date and shall continue diereAfter toyr a period of twunty-five (25) years from and after the Effective Date, unless this Agreement is terminated, 2.2 PLovisioM aurvivingE?S� of Term. The provisions, rights, and obligat set forth in, Section 4.0 shall re ain effective and binding on City and Developer (and/o successor(s) in interest) until the expiration of the time periods set forth in Section 4.4.5, ri, 0 provisions, rights, and obligations set forth in, Article 8 shall remain effective and binding on City and Developer (and/or its successor(s) in interest) until the expiration of the time periods set forth in Article S. 'Me provisions, rights, and obligations set forth in Section 12.4 shall remain effective and binding on City and Developer (and/or its successor(s) in interest) until the expiration or earlier termination of that certain Ground Lease By and Between City of Downey and Industrial Realty Group, LLC, dated on or about December 4, 2003. The provisions, rights, LL 0 and obligations set forth in Section 13.2 shall remain effective and binding on the City and C Developer (and/or its successor(s) in interest) until the expiration of the statute of limitations oft any and every Claim. The provisions, rights, and obligations set forth in Article 5 shall remain effective and binding on the City and Developer (and/or its successor(s) in interest) for a period U) of twenty rive (2S) years from and after the Effective Date. forth herein, during the Term, the tenns and conditions of development applicable to the Property, including but not limited to the permitted uses of the Property, the density and intensity of use, maximum height and size of proposed buildings, and provisions for the reservation and dedication of land for public purposes, shall be those set forth in the Existing Land Use � '~ 26982' 0291 � _—__'__ 'v ' I 9 N I any -1 the Base Project and/or the Enhanced Project on the Property in accordance with the Existi Land Use Regulations. Developer shall also have a vested right to: Q) receive from City future development approvals for the Base Project and/or the Enhanced Prwoject that consistent with, and implement, the Existing Land Use Regulations and this Agreement; (io , A to have such approvals for the Base Project and/or the Enhanced Project be conditioned SAW- I I t7M �;JvllvlTj 1,111 1K-,tKqf1 3.2 Tentativg.-Subdivision With respect to applications by Developer for es U10 term Ot suO11 tentative map(s) automatically shall be oxtonded until the expiration of the Term or the earlier termination of this Agreement. If final maps ate not recorded prior to the expiration of the Term or the earlier termination of this Agreement, but such maps have not otherwise expired tinder' State law, the Municipal Code and/or the Zoning Code, then such maps shall remain effective until and to the extent otherwise required under State law, the Municipal Code, and/or the Zoning Code. 3.3 isfactory completion by Lem- lumru= - rm,� groNSA11,1111 111,1111111111.,K041f; 111111111111f VIC; 'A C k [�,l D Ci,_4 2 fiK i -i ii 3.4 Provided that Developer pays the reasonable cost of such cooperation, after City has approved the development of any portion of the Property, City shall reasonably cooperate with Developer in its efForts to obtain such additional permits and approvals as may be required by any other governmental or quasi-govemmental agencies Jig Jk 4o liq4in v applivalm, M&M, Try rU-%-T1v3EUVFTT. will be granted. 3.5 Subs pent General Plan Amendments and Zone Chanees. In consideration for the benefits provided to Developer under this Agreement, including without limitation the WiTer af 0 to grant any subsequent application for any amendments to the General Plan and/or changes to the zone designations for the Property which may be initiated by Developer. Notwithstanding 26NJ21.7rUnnwVM3 OXI 10-0002434-14-120TWAms -12- the foregoing, this Section 3.5 shall not limit Developer's statutory, constitutional, or common law right(s) (if any) to seek future legislative approvals from City. 3.6 liming of Developmeqt. City acknowledges that Developer cannot at this time predict the timing or rate at which the Base Project and/or the Enhanced Project will be developed. The timing and rate of development depend on numerous factors such as market demand, iriterest rates, absorption, completion schedules, and other factors which are, not within the control of Developer or City. In Pardee Construction Co. v. City of Camarillo (1984) 37 CaUd 465, the California Supreme Court held that a construction company was not exempt from a city's growth control f::rdinance notwithstanding that the construction company and the city had, prior to the adoption of do ordinance, entered into a consent judgment (tantamount to a contract under California law) establishing the company's vested rights to develop f in accordance with the existing zoning. The California Supreme Court reached this result on the basis that the consent judgment failed to address the timing of development. It is the intent of Developer perform an obligation on or before a specified calendar date and/or cvcnt� and/or within a specd period of time. 3.7 Notwithstanding any provision set forth in this Agreement to the contrary, the laws, rules, regulations, and official policies set forth in this Section 3.7 shall apply to and govern development of the Base Project and/or the Enhanced Project on the Property: 3.7.1 gqqsijtentJ_uture City Rcrulatfls. City ordinances, resolutions, regulations, and offlicial policies adopted or approved after the Effective Date pursuant to 2698S21.11im"Mooh 028110-00620-14-12MMAna -13- NEMEMG� 3.7-2 Qyq�Hdin �tatc a�ndkderql I.aws aild [to gulations. State and federal laws and regulations which override Developer's vested rights set forth in this Agreement shall apply to the Property, together with any City ordinances, resolutions, regulations, and official policies which are necessary to enable City to comply with such overriding State and federal laws and regulations; provided, however, that (i)Developerdoes not waive its right to challenge or contest the validity of any such State, federal, or local laws, regulations or official policies; and (h) in the event that any such State or federal law or regulation (or City ordinance, resolution, regulation, or official policy undertaken pursuant thereto) prevents or precludes compliance with one or more provisions of this Agreement the Parties agree to consider in good faith amending or suspending such provisions of this Agreement as may, be necessary to comply with such State or federal laws, provided that no Party shall be bound to approve 40y amendment to this Agreement unless this Agreement is amended in accordance with the procedures applicable to the adoption of development agreements as set forth in the Development Agreement Statute and each Party retains full discretion with respect thereto, 3.7.3 Public Health and Sar—ety, Any City ordinance, resolution, regulation, or official policy, which is necessary to protect persons on the property or In the immediate community, or both, from conditions dangerous to their health or safety, or both, notwithstanding that the application of such ordinance, resolution, regulation, or official policy or other similar limitation would result in the impairment of Developer's vested rights under this Agreement. 3.7.4 Provisions of the buildinj standards set forth in the Uniform Construction Codes shall apply to the Property. As used herein, the term "Uniform Construction Codes" collectively refers to the 2010 California Building Codes, the 2010 California Electric Code, the 2010 California Plumbing Code, the 2010 California Mechanical Code, the 2009 Uniform Solar Energy Code, the 2009 Uniform Swimming Pool, Spa and Hot Tub Code, the 2010 Green Plumbing and Mechanical Code, and the 2010 California Fire Code (including amendments thereto by the Downey Fire Department), as modified and amended by official action of City, and any modifications or amendments to any such Code adopted in the future by City. 3.7.5 RL)lice—Po-w—per. In all respects not provided for in this Agreement, City shall retain full rights to exercise its police power to regulate the development of the Property. Any uses or developments requiring a site plan, tentative tract map, conditional use pomit, variance, or other discretionary permit or approval in accordance with the Existing Land Use Regulations shall require a permit or approval pursuant to this Agreement, and, notwithstanding any other provision set forth herein, this Agreement is not intended to vest Developer's right to the issuance of such permit or approval nor to restrict City's exercise of discretion with respect thereto; provided, however, that City acknowledges that it is obligated to process discretionary and ministerial approvals consistent with the Existing Land Use Regulations in accordance with the procedures set forth in the Specific Pfau, 3.8 LU:c a it evc ointent Parki During the Term, Developer may request in writing that City enter into negotiations for the provision, at no additional charge to Developer, of a parking easement and/or license agreement to accommodate up to twenty (20) parking spaces on no more than forty five one hundredths f0,45) acres of property adjacent to the Property and owned by City. ThePaftits shall negotiate to good faith to 2491521.71049floVEIMS 0211110-0000-14-12IM/Ift -14- WEM�� FT I . :11 #1 1 4 it v I- - - - - - - - - - - - - - - - - - - - - .1 . . . . . . . . . . . . . Developer's request to enter into negotiations. City shall have the right to terminate casement or license, and/or relocate the parking to a different location owned by City C te ty adjacent to the Property in City's reasonable business and/or regulatory judgment, rmelommcati of the parking is necessary to allow for the sale, lease, or other use of any property owned City. If it elects to terminate or relocate the easement or license, City shall provide at I ninety (90) days advanced notice to Developer. If it elects to relocate the easement or ficens Jay raT U401414 oil to] Qq+illl 3.9 51,priature EiLtrance. City and Developer agree to work together in good faith no cost to City, towaM the design, approval, and development of a signature entrance to property fbr the Base Project and/or the Enhanced Project, 3.10 City In-fras1ructure finorovenientg. To the extent required by applic,able laws, City shall pay prevailing ;;ages fWintersection and groundwater well improvements that funded (in part or in whole) by Developer as conditions of approval of the Proj"ect. City mak no representation or warranty to Developer concerning the legal effeC4 if any, of the Cit I construction of such improvements on Developer's rights and responsibilities under state la federal law, and/or this Agreement. REMEM 0=1 W Li Li OWK-1101W. I III'M ea f I Iraw a sale %of a 4 1— a &a,—%O%OV cam. Ij (7j&,T to the development of the Property or that increase any existing fees, charges, assessmeflU, taxes that apply to the development of the Property, and nothing set forth herein is intended 01 rZ UUMEMEM9 4A.1 -Ma—inteliance of BQoks and Recoags. Developer (and/or its successo*) in interest) shall cause to be prepared and maintained complete, proper and accurate books, accounts and records of all matters or amounts relevant to any calculation of any and all sums owed to r b City nder is M F 4.41 Allocation of,!Q2stfi, nd Expenses. In allocating any item of cosIZIPP-115ni. receipts or income to a particular portion of the Property, commercially reasonable accounting principles, consistently applied, shall be utilized. 4.4.3 Nktj--W-_ai_v-qL_E_Iy City. The acceptance by the City of apayment, or the provision by City to Developer of a payment, required by this Agreement shall be without prejudice to the City's right to examine and to audit Developees (and/or its successor($) in interest) books, accounts and records to verify the acc'uracy of any information supplied by Develo, cr an t it 0 0 OU 2693321,7AMmIcOM 028110-0003-14-1=60w —16— M77rtr,y, publicany other applicable state or federal laws respecting the disclosure of information held by a '.; ► 1 :'1 tw. 1 1 7 t,: 1 '1i,, 7 it . # Costs under Section a shall continue until three (3) years after the issuance of a Certificate of Occupancy for } 5.1 1 4, t wIn accordance Section♦ Develoser shall• d �,. 1}. 1 t '1 • 1 • 1 ! 1 i 1t° 1 - use commercially reasonable efforts to proceed to complete or cause to be completed the Base Project and/or the Enhanced Project in a good and worlananlike manner. 11011141 I'M "I'M 1 1011 IWI U 11,11,14111 by City. in its sole and absolute discretion. 5.3 [RESERVED]. r 2698 929.1hM®nNSGON 8 -17- 428119-00OW-14-121MAm %� a'4 A O . .—S..—. i. V— — — . . — . — . — . ora® . . — .' — . --an . — I 5.5 Nveloper Aqgudanc; at!giLy �Meetipj s. Developer shall ensure that one or more of its employees or consultants who are knowledgeable regarding this Agreement and the construction and installation of the Improvements, such that such person(s) can meaningfully WI 5.6 Maintenance CovSqq_q. Developer for itself, its successors and assigns, cI venants and "MMIWIRMNSINI, ,, w N 1 repair and a neat, clean and orderly condition, ordinary wear and tmr excepted. If at any time prior to the end of the Term, there is an occurrence of a Maintenance Deficiency, then City may notify Developer in writing of the Maintenance Deficiency. If Developer fails to cure or commence and dgently pursue to cum the Maintenance Deficiency within thirty (30) calendar 2698371.7AMWs*OM6 0281 10-400344-I2liMAN ---------- OWTUM-Wil NEMEM� . ° f become the debt Developer. if the amount of the debt o' paid by Developer right to'enforce collection by any available legal means including without limitation the withholding . : the amount of the debt from any future annual Grant payment Agreement. .. 5.6.3 Lien It i hts. The obligations of Developer and its successors and assigns under this Section 5.6 shall be secured by a lien against the Property. Developer hereby grants to the City a security interest in the Property with the power to establish and enforce a lien or other encumbrance against the Property, in the manner° provided in Civil Code Sections 2924, 292b and 2924c, to secure the obligations of the Developer and it successors under this Section, including Legal Costs and other costs of the City associated with the abatement of a Maintenance Deficiency or removal of graffiti. This Agreement shall provide notice of such security interest in favor of the City. The City shall reasonably subordinate its lien rights under this Section to security instruments or leases securing bonatide financing from Institutional ..enders to the Developer for const tion of the Ease Project and/or the Enhanced Project, upon �writtcn request from Developer and on the condition that Developer reimburse the City all of its costs (including Legal Costs) incurred in providing such subordination. 6.1 Qgvel2ger Election Tg lA ve ar ced P ~ `cit,. At any time during the first five (5) years following the Effective Date, Developer may in its sole and absolute discretion elect to develop -the Enhanced .Project. Such an election shall be effective upon the provision of notice of such election in writing to the City. 6.2 Aonlicabilitv f Base Pro iect Covenants. If, pursuant to. Section 6. 1, Developer elects to develop the Enhanced Project, the following covenants, in addition to those set forth in Article 5 shall remain applicable and binding upon the parties. ; 6.3 9peratinCovenant . The provision to City of an election to develop the Enhanced Project pursuant to Section 6, 1, shall constitute Developer's binding commitment to be bound by the Operating Covenant contained in this Section 6.3, which consists of the following terms and conditions: 6.3.1 C nduct of Re uired OveMfiggs, During the Operating Period, Developer hereby covenants and agrees to diligently endeavor to continuously conduct or cause to be conducted the Required Operations on the Property. The failure of Developer to maintain the Required Operations during any Compliance Year within Operating Period shall, inter alfa, excuse the City from the obligation to make any annual Grant payment pursuant to Section 6.3.2 for that Compliance Year. 6.3.2 Annual G,raq Pavz_rent. Subject to Developers continued compliance under this Agreement, on or before June 34 following each calendar year during Operating Period in which Developer maintains the Required Operations, City agrees to pay Developer the Grant Amount, provided, however, that City shall. not be required to pay the Grant Amount for 26"521.7nnm.rnn S -19- 02$1e®-®•0213-14.1VJTMfiw any calendar year during which Sales Tax Revenues do not equal a minimum of. Two Million Dive Hundred Thousand Dollars ($2,500,000). 6.3.3 Certification. Within forty-five (45) days following the end of each Compliance Year for which Developer claims an entitlement to receive an annual Grant Amount, Developer shall file a Certification. 6.3.4 (Ise Restriction. Throughout the Operating Period, the Property shall include buildings and facilities sufficient to support the Required Operations. 6.3.5 Covenant to Maintain Property on Tax. ,'Rol,1 . Developer covenants to cause the Property to remain on the County of Los Angeles secured real property tax rolls, continuously, throughout the Term, and to pay all property taxes regarding the Property and all improvements on or to the Property before delinquency, throughout the Term. Notwithstanding the foregoing, the City may, in its sole and absolute discretion, and upon written request of Developer, consent to a use of a portion of the Property that would cause said portion of the Property to be removed from the County of Los Angeles secured real property tax rolls. 6.3.6 leo Conve ance to j*ax„ xem t Entity. Developer covenants and agrees that throughout the Tenn, neither Developer, nor its successors or assigns, shall Transfer all or any portion of the Property to any Person or use all or any portion of the Property for any use, that is partially or wholly exempt from the payment of property taxes or that would cause the exemption of the payment of all or any portion of properly taxes otherwise assessable regarding the Property, without the prior written, consent of the City, which may be given or withhold in the City's sole and absolute discretion. Developer acknowledges and agrees that the covenants contained in this Section are material to the City and its decision to enter into this Agreement, as the City receives significant financing from property tax revenues from development within the City and that any violation of such covenants will result in financial injury to the City by depriving the City of property tax revenues from all or a portion of the Property or the Ease Project andlor the Enhanced Project. Additionally, Developer acknowledges and agrees that the restrictions on Transfers set forth in this Section are reasonable under the circumstances because of the City's interest in property tax revenues from the Property. Notwithstanding the foregoing, Developer and City acknowledge that upon its transfer iii• accordance with Section 8 of, this Agreement, ownership of the Fire Station Site may be held by a tax exempt entity and/or the Fire Station Site may be used for purpose that is exempt from taxation, and such ownership and/or use shall not require any further consents under this Section 6.3.6. 6.3.7 unlitof lniproven tints. Developer shall' cause the Improvements for Nthe Enhanced Project to be constructed in a first class manner and at an average cost (i.e., cost spread over all Improvements on the Property) of no less than two hundred thirty five dollars ($235.00) per square foot (including design, permitting, and construction costs), adjusted on an annual basis from and after the Effective Date based on the year -over -year change in the HCalifornia Highway Construction Cost Index (or, if the California Highway Construction Cost Index is discontinued, a substantially similar index selected by the City). All improvements will be maintained in a condition substantially identical (or better) than their original condition. All Large Format Retail Development and Remaining Commercial Development shall be operated JJ Y L 26"521.7Ji MS -20— jU2i110 0007J3-14-ILJYMAaa Agenda Page 39 %L__ I %6J . . ®0®i®g®4 . 0.4- . . 4 . — a I —. i .4 Qf F_ . RBo --. Y a under one of the retail brand names set forth in Exhibit" _" or such other retail brand name approved by City, in its sole and absolute discretion. 6.4 covenants Runnin witha Clip Land. The provisions of this Article 6 shall be covenants running with the land of the Property during the Operating Period for the benefit of and shall be enforceable solely by the City in its sole discretion. 7.1 Obli ation to refrain front Discriminat`on. Developer covenants and agrees for itself, its successors, its assigns and all persons claiming under or through them to the Property or any part thereof, that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Developer itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, or sublessees of the Property. The foregoing covenants shall run with the land and shall remain in effect during the Extended Term. 7.2 For n of Non-discriDttiltation and hi'on-segD°cgatioDa +ala+tsc. Developer covenants and agrees for itself, its successors, its assigns, and all persons claiming under or through them to the Propisrty haat Developer, such successors and such assigns shall refmin from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining to all or any portion of the Property shall contain or be subject to substantially the following non-discrimination or non -segregation covenants: 7.2.1 In dq ds. "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub -tenants, or sub -lessees in the premises herein conveyed. The foregoing covenants shall run with the land." 7.2.2 In leases. "The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: Ihat there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein ]eased nor shall the lessee itself, or -any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location,, number, use, or occupancy, of tenants, lessees, sub -lessees, or sub -tenants in the premises herein leased." 2698521JAMmageoMS ®28110 Qom]!! 14-DBJJTMAeo -21- Agenda Page 40 7.2.3 In contracts. "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status. national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person MIMI party or parties, or other transferees under the instrument 8. STATION DEDICATION AMn n-"-* 574 Iwo or the Fire Station to Developer, Developer shalt be required to diligently commence design and other predevelopment activities, and to gently proceed to the completion or �Gnstruction of the Fire Station on the Fire Station Site. City shall reasonably cooperate with Developer and 11 111! 8.3 SubdLyision of Firc Station itq. Within two years following the issuance of a Certificate of Occupancy for the Fire Station, Developer and City shall cause the Fire Station Site to be a separately saleable property through the filing of a condominium map, or such other procedure for rendering the Fire Station Site saleable as the Parties may mutually agree upon, M L ind any additional matters included by mutual consent in the Fire Station Lease sha be fully consistent with the terms set forth in this Agreement. 8.5 Lonvevance of'Fire Station inid Fire SLation Site to ( it L y. Upon payment by City to Developer of the Fire Station Construction Costs, which shall be paid by City to Devuloper as rent over a period of twenty (20) years, the Fire Station Lease shall terminate. Upon the r. M 2698.521,7/jUM@jvDW 028110.000-1442MM&P -22-� %,ownlimm lvlr--Ivl%j. i iub i ib mi P tui %jrrI%.oI. T W X z rn 0 0 2 5 termination of the Fire Station Lease, Developer shall convey fee title to the Fire Station, the Fire Station Site and all improvements and fixtures thereon to City, and the Fire Station Lease shall be terminated with such termination. 9. DETAULT _',RMlNA`r_1_0N. ., REMEDIES, AND TF 9.1 Notice an A Ono4unity to—f —ure. Before this Agreement may be terminated or action may be taken to obtain judicial relief, the Party seeking relief ("NOR -Defaulting Party") shall comply with the notice and cure provisions of this Section 9.1. A Nondefaulting Pirty in its discretion may elect to declare a default under this Agreement in accordance with the WTqWTMM%3Mr7n77M AM, =16, Agreement: (j) notifies the Non -Defaulting Party in writing with a reasonable explanation as to the reasons the asserted default is not curable within the thirty (30) day period; (4) notifies the Non -Defaulting Party of ft Defaulting Party's proposed course of action to cure the default (M) promptly commences to cure the default within the thirty (30) day period; (xv) makes periodic reports to the, Non -Defaulting Party as to the progress of the program of cure; and (y) diligently prosecutes such cure to completion. Notwithstanding the foregoing, the Defaulting Party shall be deemed in default of its obligations set forth in this Agreement if said breach or failure involves the payment of money but the Defaulting Party has failed to completely cure said monetary default within fifteen (15) days (or such lesser time as may be specifically provided in this Agreement) after the date of such notice. 9.2 Pg rault Remedies, Subject to Section 9.3, in the event of a default, the Non - Defaulting Party, at its option, may institute legal action to cure, correct, or remedy such default, enjoin any threatened or attempted violation, enforce the terms of this Agreement by specific performance, or pursue any other legal or equitable remedy. Furthermore, City, in addition to or as an alternative to exercising the remedies set forth in this Section 9.2, in the event of a material default by Developer, may give notice of its intent to terminate or modify this Agreement pursuant to the Development Agreement Statute, in which event the matter shall be scheduled for consideration and review by the City Council in the manner set forth in the Development Agreement Statute. 9.3 Developer's Exclusive Remedy. The Parties acknowledge that City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreemenk or the Existing Land Use Regulations, or the application thereof, or any permit or approval" sought by Developer in accordance with the Existing Land Use Regulations. Accordingly, Developer covenants on behalf of itself and its successors and assigns, not to sue 2699521JAMOMIGM4 -23- .J. City for damages or monetary relief for any breach of this Agreement or arising out of or connected with any dispute, controversy or issue regarding the application, interpretation or effect of this Agreement, the Existing Land Use Regulations, or any land use permit or approval sought in connection with the development or use of the Property or any portion thereof, the Parties agrocing that declaratory and injunctive relief, mandate, and specific performance shall be Developer's sole and exclusive judicial remedies. Notwithstanding the foregoing, the Parties acknowledge and agree that Developer may seek specific performance of City's monetary obligations under this Agreement, and that such an action for specific performance shall not be construed as an action for damages. . ig�cure. The obligations by any Party hereunder shall not, deemed to be in default where delays or failures to performare due to any cause without the fa It and beyond the reasonable control of such Party, including to e extent applicable, the fo lowing: , insurrection; strikes; walk -outs; the unavailability or shortage of labor, material,lor equipment; riots; floods; earthquakes; the discovery and resolution of hazardous waste ' or significant geologic, hydrologic, archaeological, paleontological, or endangered species problems on the Property; fires; casualties; acts of God; governmental restrictions imposed or mandated by other governmental entities; with regard to delays of Developers performance, delays caused by City's failure to act or timely perform its obligations set forth herein; with regard to delays of City's performance, delays caused by Developer's failure to act or timely perform its obligations set forth herein; inability to obtain necessary permits or approvals from other governmental entities; enactment of conflicting state or federal statutes or regulations; judicial decisions; or litigation not commenced by such Party. Notwithstanding the foregoing, any delay caused by the failure of City or any agency, division, or office of City to timely issue a license:, perrait, or approval required pursuant to this Agreement shall not constitute an event of force majeurc extending the time for City's performance hereunder. If written notice of, such delay or impossibility of performance is provided to the other Parties within a reasonable time after the commencement of such delay or condition of impossibility, an extension of time for such cause will be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon by the Parties in writing, or the performance rendered impossible may be excused in writing by the Party so notified. In no event shall adverse market or financial conditions constitute an event of force majeure extending the time for such Patty's performance hereunder. Unless the parties agree in writing to the contrary, in no event shall the Term of this Agreement be extended by an event of force majeurc. r f� 10.1 TJn in of a4f►nual Review. During the Term of this Agreement, at least once during every twelve (12) month period from the Effective Date, after receipt of each annual Certification from Developer, City shall review the good faith compliance of Developer with the terms of this Agreement ("Annual Review"). The Annual Review shall be conducted by the City Council or its designee in accordance with the Development Agreement Staute. 10.2 Standards for Annual Review. During the Annual Review, Developer shall be required to demonstrate good faith compliance with the terms of this Agreement. if City or its designee finds and determines that Developer has not complied with any of the terms or conditions bf this Agreement, then City may declare a default by Developer in accordance with 269652LM BOUMS �24- o2a1I•.o QW -1442M WIN 1111 r 1*111wo all Article 9 herein. City may exercise its rights and remedies relating to any such event of default only after the period for curing a default asset forth in Article 9 has expired without cure of the default. The costs incurred by City in connection with the Annual Review process shall be paid by Developer. 10.3 Certificatc of Compliance. With respect to each year in which City approve$ Developer's compliance with this Agreement, City shall, upon written request by Developer, provide Developer with a written certificate of good faith compliance within thirty (30) days of Cilys receipt of Developer's request for same. IL MORTGAGEE RIGHTS. 11.1 E LnEgrobtances. on the Property. The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, from encumbering the Prooerty or any portion thereof or any improvements thereon with any Mortgage securing firtanciog withrespect to the construction, development, use, or operation of the Base Project and/o� the Enhanced Project. I 11.2 Thii Agreement shall be superior and senior to the lieu of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shal I defeat tender invalid, diminish, or impair the lien, of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Property or any portion thereof by a Mortgagee (whether pursuant to foreelosure, trustee's sale, deed in lieu of foreclosure, lease termination, or otherwise) shall be subject to all of the terms and conditions of this Agreement and any such Mortgagee who takes title to the Property or any portion thereof shall be entitled to the benefits arisingunder this Agreement. 11.3 Mort "it tee Not Obfig@!q.4. Notwithstanding the provisions of. this Article If, a C, TIMM — i Y '707WEIMUMUT-777 be a condition precedent to Citys performance hereunder. 11.4 Notice of Default of Moqguqc to Cure. Each Mortgagee V T remedied or cured by such Mortgagee upon obtaining possession of the Property, such =1 0, 41fiv possession, and, except in caseof emergency or to protect the public health or safety, City may 269S52J.7fiMmmVDMS 021110-MM-14-JUXI'MAN -25- 1V1E:1V1%j. 1 1110 6s I Itp IM%J I all nLL,%,W"LF- (30) day period; provided, however, that in the case of a default which cannot with diligence be remedied or cured within such thirty (30) day period, the Mortgagee shall have such additional time as is reasonably necessary to remedy or cure such default provided Mortgagee promptly commences to cure the default within the thirty (30) day period and diligently prosecutes such cure to completion. 12. ASSIGNMWT-- 12.1 R Jght to Assign. Subject to City's prior written consent, which shall not be fl -C dight 12,2 Release lion Transfer (if Agreerneg, Upon the written consent of City to the partial or complete assignment of this Agreement (which consent shall not be unreasonably Withheld) and the express written assumption in a form approved by City of such assigned obligations of Developer under this Agreement by the assignee, Developer shall be relieved of its legal duty to perform the assigned obligations set forth in this Agreement, except to the extent Developer is in default hereunder prior to said transfer. .6 12.3 Aasinee ulact to Term,% f A rcernent. Following an assignment or transfer of C any of the rights and interests of Developer set forth in this Agreement in accordance with Sections 12.1 and 12.2, the assignee's exercise, use, and enjoyment of the Property shall be subject to the terms of this Agreement to the same extent as if the assignee or transferee were T z Developer. 12.4 Rcleasc_V 22n Transfer _oLinters stin L icd ProQM r . Upon the written consent s of City to the partial or complete transfer of Developer's interest in the Leased Property pursuant to Section 13.01 of that certain Ground Lease By and Between City of Downey and Industrial E Realty Group, LLC, dated on or about December 4, 2003 (which consent shall not be 5 unreasonably withheld) and the express written assumption in a form approved by City of such E assigned obligations of Developer under said Ground Lease by that assignee, Developer shall be 26985Z1.7fiM1aWDM8 028110 -000M -14421M/10 -26. Agenda Page 45 relieved of its legal duty to perform the assigned obligations set forth in said Ground Lease, except to the extent Developer is in default thereunder prior to said transfer. 13.1 Insurance., 13, 1.1 base Pro rct tltsuranLe. Developer shall procure and maintain on the Developer Leased Property the insurance required undcr that certain Grount Lease dated December 4, 2003 between City and Industrial fealty Group, .LLC, a Nevada limited liability Emauaz 13.1.2 lrrhatcd l'roiect ILL surace, if Developer elects under Section 6.1 to build the Enhanced Project, then Developer shall procure and maintain insurance on the Property in the types and amounts required under that certain Ground Lease dated December 4, 2003 between City and Industrial Realty Group, LLC, a Nevada limited liability company. 13.1.3 InsuranceDoes Not Relieve liability. Insurance coverage in the minimum amounts set forth in this Agreement shall not be construed to relieve Developer of any liability, whether within, outside, or in excess of such coverage, and regardless or solvency or insolvency of the insurer that issues the coverage; nor shall it preclude City from taking such other actions as are available to it under any other provision of this Agreement or otherwise at law. IMA Default for Faily a to Maintain Insura true. Failure by Developer to maintain all insurance required by this Agreement in effect at all times shall be a default by Developer under this Agreement. City, at its sole option, may exercise any remedy available to ® it in connection with such default. Additionally, City may purchase any such required insurance oc O coverage and City shall be entitled to immediate payment from Developer for any premiums and Wassociated costs paid by City for such insurance coverage. Any election by City to purchase or X not to purchase insurance for Developer's contractor shall not relieve Developer of its obligation J to obtain and maintain the insurance covcmge required by this Agreement. LL U 13.2 Indemnities by Develooc . U- 0 13.2.1 General 1 de mit . Develo er agrees to indemnify, p g y, protect, defend, and hold harmless the City Parties from and against any and all Claims which may arise, directly or indirectly, from the acts, omissions, or operations of Developer or Developer's agents, Z contractors, subcontractors, agents, or employees pursuant to this Agreement, but excluding any H loss resulting solely from the intentional or active negligence of the City Parties. Notwithstanding the foregoing, City shall have the right to select and retain counsel to defend I any such action or actions and Developer shall pay the cost thereof; provided, however, that the Parties agree to attempt in good faith to coordinate and/or consolidate their defense of any Claim T that is subject to the indemnification provisions of this Section 13.2. 13.2.2 Prevailing Wage Indemnity and Notice to IDevelrl ur of Labor Code L `ie tin t781. In connection with, but without limiting, the foregoing, Developer hereby E expressly acknowledges and agrees that the City is not by this Agreement affirmatively X u j 02®I [W02/344.114TWa -27- Agenda Page 46- Mac -11111%a. 1 1110 %.P%aff — I M I'l%J I Cap 1 %.01 a 1a.o1i96 I %&.F. representing, and has not. previously affirmatively represented, to the Deveipper or any contractor(s) of Developer for any construction on or development on or adjacent to the applicaullity 01 anj d4b V Enhanced Project MIN i. ee -28- Agenda Page 47 'LCUKUtH Mt=MU: inisuuFy is Nu I an Ur1-IUIALKt::k;UKU- 13.3 Wherever this Agreement requires any indemnitor to indemnify any indemnitee: 13.3.1 Promot Notice. City shall promptly notify Developer in writing of any Claim. 13.3.2 goopeL a giq_n. City shall reasortably cooperate with Develodefense, Costs) of such cooperation. 13.3.3 §eLdcmo. Any settlement shall require the prior written consent of both City and Developer, which consent shall not be unreasonably withheld. fol 0 TM (including Legal Costs) of such cooperation. 14. 2MS21.7JJMQRWDM 02811040OW-14-120TWoo -29- Agenda Page 48 eCVVRLJGII mr-i I i. i 1U, t,Vr r 15 amw B d1r Vrrnii^L_ nr_%I VRL.J. liable to Developer or any other person or entity for damages alleged from any alleged or established failure of City to comply with any statute, including, without limitation, CEQA. 15. 15CELI ANEOUS. 15.1 Compliagp& with A212licabig Law, Developer shall carry out the construction of the Base Project and/or the Enhanced Project in accordance with all applicable laws, regulations, and rules of Governmental Agencies, including without limitation all applicable federal and state labor standards. 15.2 Covenants. The provisions of this Agreement shall constitute covenants which shall run with the land comprising the property for the benefit thereof, and the burdens and benefits hereof shall bind and inure to the benefit of each of the Parties hereto and all successors in interest to the Parties hereto. a 15.3 Mutual Covenants, The covenants contained in this Agreement are mutual covenants and constitute conditions precedent or concurrent to the subsequent or concurrent performance by the Party benefited by the covenant(s). 15.4 Recordation of Agreement. This Agreement and any amendment, modification, termination or cancellation of this Agreement shall be recorded against the Property in the official records of the County Recorder by the Clerk of the City Council, within the period required by Section 65868.5 of the Government Code. Developer authorizes the recording, of all such documents against the Property, and each and every parcel within the Property, whether preceding, during or after the Extended Term. i 15.5 Constructive Notice and Acre tan+ce. Subject to Article 12, every person who now or hereafter owns or acquires any right, title, or interest in or to any portion of the Base Project and/or the Enhanced Project or the Property is and shall be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Base Project and/or the Enhanced Project or the Property. 15.6 ucceisorrs in Miter st. Subject to Section 12.1, the burdens of this Agreement shall be binding upon and the benefits of this Agreement shall inure to all successors in interest to the Parties. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land of the Property. Subject to Section 12.1, each covenant of this Agreement to do or refrain from doing some act regarding development of the Property: (r) is for the benefit of and is a burden upon every portion of the Property; (fl) runs with every portion of the Property; and (iii) is binding upon Developer and each successor in interest to Developer in ownership of the Property or any portion of the Property. 15.7 Cit mrrna?er lin letrrentati n. City shall implement this Agreement through its City Manager. The City Manager is hereby authorized by City to issue approvals, interpretations or waivers and enter into certain amendments to this Agreement on behalf of. City, to the extent that any such action(s) doestdo not materially or substantially change the Improvement or increase the monetary obligations of City by more than Seventy -Five Thousand Dollars ($75,000) in the aggregate, provided, however, that in the event the Specific Plan allows certain 169a521.7AMw aDhO -30- 039110-000713-11- WiMfu %L-%F%.f1 160" It IWIL-1w1w. I 1110 1 1.12P I'dw a 011 11 approvals by the Community Development Director, his designee or the Community Development Department, the procedures in the Specific Plan shall be followed. All other actions shall require the consideration and approval of the City Council, unless expressly provided otherwise by action of the City Council. Nothing in this Section 15.6 shall restrict the submission to the City Council of any matter within the City Manager's authority under this Section 15.6, in the City Manager's sole and absolute discretion, to obtain the City Council's express and specific authorization on such matter. The specific intent of this Section 15.6 is to authorize certain actions on behalf of City by the City Manager, but not to quire that such actions be taken by the City Manager, without consideration by the City Council. 15.8 Political Reform Act. The Parties acknowledge that they are each aware of the Political Reform Act. Each Party represents and warrants to the other that it is its full intention to comply with all applicable provisions of the Political Reform Act. 15.9 Survival cLf Agreement. All of S/ of this Agreement shall applicable to any j dispute between the Parties arising from this Agreement, whether prior to following expiration or termination of this Agreement, until any such dispute is fipinally or. iWiWW&"w-e-rA1rQ4-iL"A, IMU64 NUM, lvvx� V, W-17FAM&TT WVL-1 -M%ff of this Agreement relating to dispute resolution and limitations on damages or I remedies A survive, any expiration or termination of this Agreement. I 15.10Enfi�rerq �qjcnt- �Waiv�crand Amcndm ,Sms. This Agreement constitutes the entire understanding and agreement of the Parties and supersedes all previous negotiations, discussions, and agreements among the Parties with respect to all or part of the subject matter hereof. No parole evidence of any prior or other agreement shall be permitted to contradict or vary the terms of this Agreement. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by any other Party, or the failure by a Party to exercise its rights upon the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Parties with the terms of this Agreement thereafter. Any amendments or modifications to this Agreement must be in writing, signed by duly authorized representatives of each of the Parties hereto, and recorded in the Official Records of Los Angeles County, California. 15.11 Principlc§ -of Interpretation. No inference in favor of or against any Party shall be drawn from the fact that such Party has drafted any part of this Agreement. The Parties have both participated substantially in the negotiation, drafting, and revision of this Agreement, with advice from legal and other counsel and advisers of their own selection. A word, term or phrase defined in the singular in this Agreement may be used in the plural, and vice versa, all in accordance with ordinary principles of English grammar, which shall govern all language in this Agreement. The words "include" and "including" in this Agreement shall be construed to be followed by the wards: "without limitation." Each collective noun in this Agreement shall be interpreted as if followed by the words "(or any part of it)," except where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such document as modified from time to time (excepting any modification that violates this Agreement), and includes all exhibits, schedules, addenda and riders to such document, The word "or" in this Agreement includes the word "and." Every reference to a law, statute, 2698521.7fiMmiWDMS oull"OOM-14-1VTrwo -31- I a 110 ko%jr 1 10 11AW I C2J q %jr r jq,,gjnj_ n=%.OWMW, regulation, order, form or similar governmental requirement refers to each such requirement as amended, modified, renumbered, superseded or succeeded, from time to time. 1 15.12 Incorporafign ofAcciL a1g. The Recitals of fact set forth preceding this Agreement are true and correct and are inc4wporated into this Agreernent in their entirety by this reference. 15.13 Sergion Fl.e _jq,s and Section A rt er n 11 se 1 a h adi iii! il, icle Ref e ces. A cto e ngs and subheadings in this Agreement are inserted for convenience only and shall not be considered in the construction or interpretation of this Agreement. All references to Section numbers shall be construed to include any and all subsections of the referenced Section number. All references to Articles shall be construed to include each and every section and subsection within the referenced Article. I 15.14 $-Aij9L4-r and Plural. As used in this Agreement, the singular of any1w1rd includes the plural. 15.15 Calculation of rime Periods.. Unless otherwise specified, all references to time and all references to time periods in this Agreement measured In years shall be, to consecutive calendar years. Any referen-ce to business days in this Agreement shall mom consecutive business days. 15.16 _TI ifne,of Esselice. Time is of the essence in the performance, of th6 provisions of this Agmenient as to which time is an element. I 15.17 Furt !q �heA�cttns �nd Instrurle_nts. Each of the Parties shall cooperate with and Provide reasonable assistance to the other Parties to the extent necessary to implement this AgreemeniL Upon the request of a Party at any time, the other Parties shall promptly execute, with acknowledgement or affidavit if reasonably required, and file or record such required 15.19 Legal_ ExpMjcs, in any Action proceeding between City and Developer, thi and such prevang party shall not recover any costs and expenses in excess of the non. prevailing party's expenses. The right to recover such costs and expenses shall accrue upon 26"121.7/iMaWDM5 -W12MWsc 02811040213 IVIV—FVI%J. 1 1110 r' 1 m 1 1 mi commencement of. the Action, regardless of whether the Action is prosecuted to a final judgment or decision. 15.20 No Third Party_,Beneficiaries. This Agreement and all of its terms, conditions, and provisions are entered into only for the benefit of the Parties executing this Agreement (and any successors in interest), and not for the benefit of any other individual or entity. In this regard, the owner of any portion of the Property that does not timely enter into and perform this Agreement or a substantially similar agreement with City shall have no benefit from, and shall not be a beneficiary of, any of the provisions of this Agreement. 15.21 Relationship Qf2qqjg. City and Developer hereby renounce the existence of any form of joint venture or partnership between them and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making City and Developer joint venturers or partners. 15.22 Develootpelit as q Private Undcxtaking. The Parties acknowledgeiand agree that the development of the Development is a private development. Neither Party is acting as the agent of the other in any respect pursuant to this Agreement and each Party is an independent contracting entity, with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. Other than the relationship between City and Developer with respect to the Developer Leased Property, the only relationship between City and Developer is that of a government entity regulating the development of private property and the owner of such property. 15.23. Ins oettQq of Books ndrecords. Subject to the limitations set forth in Section 4.4.5, City shall have the right at all reasonable times, at City's sole cost and expense, to inspect the books and records of Developer relating to this Agreement, the Property, the Base Project D and/or the Enhanced Project, and any development approvals for the Base Project and/or the Enhanced Project, to the extent relevant to City's rights or obligations under this Agreement, but excluding any proprietary information or attorney-client privileged communications. Developer 3 shall also have the right at all reasonable times, at Developer's sole cost and expense, to inspect J the books and records of. City relating to this Agreement, the Property, the Base Project and/or the Enhanced Project, and any development approvals for the Base Project and/or the Enhanced D Project, to the extent relevant to Developer's rights or obligations under this Agreement, but excluding any proprietary. information, closed -session information or attorney-client privileged communications. D 15.24 jgtqppel f ertifig te. Any Party hereunder may, at any time, deliver written r notice to any other Party requesting such Party to certify in writing that, to the best knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the D Party; (ii) this Agreement has not been amended or modified either orally or in writing, or if so J amended, identifying the atnendments; and ur the requesting Pa is not in default in the uJ Y g {..> �l g rh' . r performance of its obligations set forth in this Agreement or, if in default, to describe therein the nature and amount of any such defaults. A Party receiving a request hereunder shall execute and y return such certificate within sixty (60) days following the receipt thereof.. Any third party including a Mortgagee shall be entitled to rely on the Certificate. y '1 2d96521.7/MaenVDM$ ®iett®.oao-14-a21iThfAm -33- Agenda Page 52 WICIVIW_ I III* %.0%jr T Ib 1.4%j 1 4211 %jFrn_It%I_ r_t=%.O%jr%U. 15.25 An2licable L Awj_V_cAt_tc. This Agreement shall be construed and enforced in accordance with the internal laws of the State of California. Any action at law or in equity arising under this Agreement or brought by any Patty hereto for the purpose of enforcing, I of the Property. 15.27 Non -Liability ofa # o official, offiTic employee, agent or representative of Developer shall be personally liable to any of the Ci Parties for any loss arising out of or connected with this Agreement, the Existing Land U Regulations,or the development of the Property. 11 15.28 Notim. Any notice or communication required hereunder between Cityf. Developer must be in writing and may be given either personally, by registered or certified ma return receipt requestod, or by facsimile transmission. If given by registered or certified mail, some shall be deemed to have been given and received on the date of actual receipt by addressee designated hereinbelow as the 'Party to whom the notice is sent. If personal a. other address in substitution of the address to -which such notice or communication -shall given. Such notices or communications shall be given to the Parties at their addresses set for L 'velow: 9LOSCid: City of Downey City Hall III I I Brookshire Downey, CA 90241 Attn: City Manager Telephone: (562) 904-7284 Telecopy: (562) 923-6388 With a copyjo: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, CA 92626 Attn: Jeffrey T. Melching, E81 Telephone: (714) 641-5 100 Telecopy: (714) 546-9035 2698521.7/iMOWD143 028110-00024444V4TWoo -34- 'I IWII—IWA%0. I IN" %0%04 1 I.M a V%.f a %me 1 %.41 1 IN.'si-tv— I witlsvylqo: Allen Matkins Lock Gamble Mallory & Natsis LLP Three Embareadero Center, IP Floor San Francisco, CA 94111-4074 Attn: Sonia Ransom, Esq. Telephone: (415) 837-1515 Telecopy: (415) $37-1516 15.29- a Rearcaentatioi s to Ownership. Developer represents and warrants that 11%eveloper is the owner in fee of the Developer Owned Property, 15.30 Representation, A.%jq—Qwrierhi . City represents and warrants that City is the owner in fee of the Developer Leased Property, 15.31 Authorit tc Lccute. Developer warrants and represents that (1) it is duly organized and existing, (H) it is duly authorized to execute and deliver this Agreement, (iii) by so executing this Agreement, Developer is formally and to the provisions of this Agreement, (N) Developer's entering into and performance of its obligations set forth in this Agreement does not violate any provision of any other agreement to which Developer is bound, and (y) there is no existing or threatened litigation or legal proceeding of which Developer is aware which could prevent Developer from entering into or performing its obligations set forth In this Agreement. 15 .32 - -Authoritv to 6xecute. City warrants and represents that (r) it is duly organized 11 11111V of any other agreement to which City is bound, and (v) there is no existing or'&catened "itation or or performing its obligations set forth in this Agreement. 15.33 Lr-,xecutionjfAgrcement&oqq IqWarts. Ibis Agreement may be executed by the Parties in counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. This Agreement shall Constitute a Valid and enforceable agreement between City and Developer. 15.34 E-xb-�b_its. This Agreement contains nine (9) exhibits, attached hereto and made part hereof by this reference. Said exhibits are identified as follows: I A Legal Description of Developer Owned Property B Depiction of Developer Owned Property C Legal Description of Developer Leased Property D Depiction of Developer Leased Property 2694$2LMM=#oDMS 024110.000W -14.1W TrW4e .35- E Depiction of Property F Fire Station Site Plan 0 [RESERVED) H Pro -Approved Retail Development Brand Namo� I Pro -Approved Hotel Development Brand Names IN WnNUS WHEREOF, City and Developer have excouted this Agreement as of the date first written above. CITY OF DOWNEY, a Charter City By: 4may APPROVED AS TO FORM' tte M. mr I ry tte M. Abich Garc ity Aftorney r�MIT 1117� T 1� TRIFFIII 1111"Sill I I gm� 26MI 1.7hMoomVDIAS -37- 0201MA000-14-124nMos : i nisF ' . DOWNEY, LLC, a h i Name: William R. Lindsov Title: Authorind Z. y: 1RG lll, LLC . Properties, 201521.?AMMWDM8 _38® 024110.0 .14•IMVA" n �5� - STATE OF CALIFORNIA )sS COUNTY OF LOS ANGELES) Notoy Pubfic On ore me, (;qV%6 L�'�Mke personally bef 1A appeared k-�-OQKLINto ti d's.411A proved to me bil the basis of satisfactory evidence) to be the re aa!rLa7-,1otgc1 tome tiat he/sho/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument, I oerfify under PENALTY OF PERJtJ'RY under the laws of the Witness my hand and official seal. State of Callfornla that the faregoing is twe and correct. Alto STATE OF CALIFORMA )ss COUNTY OF LOS ANGELES) On before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the signature(s) on the instrument the person(s) or the entity upon behalf of whir'h the person(s) acted, executed the instrument. Witness my hand and official seal. ♦ 2698521"9t0ate"ODMS 0281 10-0000-14-12/FrMao .39. I Aq:iencia Page .17.8 0 41W,1141111 gill State of California f 105 county o N. 0n0PKL/L/0'x eforeme, k 0410 . N M "Wthomm personalty appeared I, J�� 17-71,77-71z= Description of Attached Document TMe or Type ot Document: Document Date:.._ Signer(s) Other Than Named Above. Capacity(les) Claimed by SIgner(s) Signaes Name; 0 Individual 0 Corijarate Officer — 171ile(s): 0 Partner — 0 Urnited 0 General 0 Attorney In Fact CJ Trustee 0 Guardan or Conservator U Other 0 WQQ. iiTIJOIIT7, within Instrument and acknowledged to Me that C�.Jr ZLr. tn�n and correct - z OPTIONAL Number of Pages: Signer's Name: 0 Individual 11 Corporate Officer — Tifis(s): 0 Partner — U limited 0 General 0 Attorney in Fact Top of thumb here 13 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: Signer Is RepresentinW., FM am — W - Top d OW(Ab ft" STATE OF CALIFORNIA V 06 On I before me, 11�!� appeared 4 IL rff"04�y-�� proved to me on the basis of satisfactory evidence) to be the person(O whose name* is1W subscribed to the within instrument and acknowledged to me that 6JAA;0)� executed the same in WwAhek authorized c.Vacity*), and that by hisAwAWk signatureW on the instrument the person(s) or the entity upon behalf of which the person* acted, executed the instrument. Ice* under PENALTY OF PERjuFjy under the law$ of the Sals Of Cdkmia that ft bviong is Uw and owrect Witness my hand and official seat. a -V.1V( W40 R F-1 U M kl� L On before me, personally appeared personally known to me (or proved 0,, -.me on the basis of satisfactory evidence) to be the' t��,T ii6wgiu�- "T 1111A "14 entity upoll bebalf,of which the person(s) M EM 2698S21.7/"mgcMM 0231 10-MV344-RIMUhs 50, Notary Public I County of Nontry PUM0 On I before me, 0810 Ag-Vrw, personally appeared --A PA I I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph Is true and correct. WITNESS my hand and oti fficial seal.. Siginatur 816�- , Mw Notary Goal Above F "owe '(A�" Mw�,,. OPTIONAL Tholo the 1hromiation below 18 nol (OqVtMd by law, ft May prove valuable to PeAVM Mlft 00 the d0MW( and could poevent fraudulent romoval and reaffadvnent of thie farm to atwthetdocument. ,777-111MI IV1 M-77111-77177 it9mm 1 1. -1 : 5161011tL-1 Signer(s) Other Than Named Above: Capacity(les) Claimed by Signor(s) SIgnses Name: 0 Individual 0 Corporate Officer — Title($): [3 Partner —0 Limited DGeneml 0 Attorney in Fact Top of thumb here 0 Trustee o Guardian or Conservator 0 Other: Signer Is Representing: Number of Pages: Signefs Name: D Individual 0 Corporate Offloer * Attorney in Fact * Trustee * Guardian or Conservator El Other., — Signer Is RepresOntingl. f'f6H - —Mw'f1Pj1,rjr Agenda Pagei-&T X11i W4.1 11114 1 1 704 OATN R 51 M personally appeared • r` M Z;Zi� who proved o;: me on the basis lof sag sfactory if fi A VMM Signature: 1 %Wtotwo7off Place Notary 15W Abovea - OPTIONAL Though the Intommilon below is not mquIted by law, It may prove viddablS tO Persons rof,�ft On 1119 and cout I prevent fraudulent rentoyal and teelfachmon' of this form to "her document Description of Attluched -Document Title or Type o ocumentw III - Document Date: umher of Pages: Sigriar(s) Other Th am capacity(les) Cl i ed by Signer's Name: 0 Corporate Officer — Title(s): 0 coroor—W74VE� V 5T 0 Individual M 4 IT" W I. i 1PRIN 0 Individual * Partner — 0 Umlted El General of Owmb here 0 Partner — EJ Umited CED Ca..neral * Attorney In Fact U Attorney In Fact 0 Trustee 0 Trustee 0 Guardlan or Conservator 0 Guardian or Conservator 0 Other: 0 Other: — —1 Signer Is Representing. Signer is Representing: 0 2010 N00081 NO" Asoodallon - NOtIonSINOWY-Org - IIVLVU MVIARY P-M-010-wAF? MEMET=A= tr t Ell •-� D IM I nis L;Ljvy IS NU I an Ul-rIUAL Kt=k;UKU. EXHIBIT "B" *AOWWTIOM PARCEV $"ART AM ",Ylqp4 Ne I7MSTA W NAM .w S 82-4Wti lit 4"p 640 ,0 g 14 2 V0 12* r 'a -IS I"'* 00, L-197 10 low*" E a "Oomms4 we, mowv ALM% oulova IM 11 M., MZME39� •�;r • ♦- r • ar-r M Omar �� X70, Im NiMi. '�. i— • EXHIBIT "B* -S MART AND "�SWAPUNE-7- 99 p2jal:ction of Develcliliger Leged,Pro ert p I EN MEME39mm E 'A=LiFWN PARCEV S"ARt ANO ftlSWA 4OW rlE 1"-4W GA q S B$*4Vll* W ON R am 14 ITC-LoiczUbA llllllitiil� jlr!j� EXTHBIT "E" 44 Agenda Page 73 IV-b_lft4m#•. tg eras t i tg..... FF WirtT , �� Fg In 1 WP PARCELl 4�T1 - LOT2 LOT 471,045.20 SF 1:51 AC . 4.a AC 5F 11.78 AC � 5a 10.81 AC 18'7,33 SF LOT 1 ` 4.14 AC .., 55,064J3 F" *! , ,221/xL. .67` SF ii. L ''a i#. f e i �i'i. —rm of LOT 14 Lt}i5 ii it it r 0.16AC ». �r 93,,732.795E .11ST 10 .. !, .101,491-1.91 SF. -9 = Lai LOTS T4 PMaL3 LCi1�374,454.15 ,� 5F' 1Bt F '1oD.7755.! 4,589.155E ptlw, 106,492.$1 F . � � 1.72 AC AC x.71 AC ` AC 0.10 AC AC T r n,4 4.73 5F PARCEL 4 2.05 AG ang A&jpuw6m wm357,259 SF �- N RFSSAAA. RA, 8. C LOT T12A8 5F [ . LOT 11 ,613.11 5F •, (DD 6AOAC 5A3 AC -^- co $ D: :3 — TPM.7150r a Q � - a. ,t t c MERRA LUNA im Pas R&AMPLACE tQ CD I 'SFM PLAN Ar BLOCKPROC4tAMSTU lwm $k.*Oman Cloy oF Downey 45 Agenda Page 75 U, XHIBIT %$G" 1120-3213ill _- 46 Agenda Page 76 r;• rrrr., .[ ales CASELAS •ICK$ SPORTING GOODS GOLF SMITH FACTORYNIKE O. ROGERDUNN SPORT SPORTMART SUPERCENTER s `aME BABIES R US GAME •" • VERIZON FRYS SPECIALTY DINING AUNTIE ANNE'$ PRETZEL BAJA FRESH BASKIN ROBBINS COFFEE COLDSTONE NOT r•t ON JAMBA JUICE LAMAJOON SHISH KABOB MAUI STYLE HAWAIIAN M NIBI • BISTRO ON BORDER PANDA PANERABREAD 1 13RICK PIZZA ROLL IT SUSHI SBARRO ITALIAN EATERY FACTORYSTARBUCKS SUBWAY SWEET • Ci FROZEN•t YOGURTLAND PARLORPINKSERRY FARRELLS ICE CREAM DININGCASUAL BENIHANA :• •GOURMET c • ' 09 • CEFIORE ITALIAN YOGURT CHEESECAKEFACTORY CHICAGO PIZZA CLAIM JUMPER CORNER DAILY DAPHNesGREEK EINSTEIN BROS FIVE GUYS FAMOUS 1 FRIES GRILL ISLANDSHANAH GRILLE JOeS CRAB SHACK HOLDINGS, JOHNNYROCKETS BURGER LONE STAR STEAKHOUSEMOON MACARONI GRILL MAGGIANO'S LITTLE ITALY DRIVE-IN 1 SPAGHETTI FACTORY IN THE BORDER *RIGIN& ROADHOUSE GRILL 'SUTBACK STEAKHOUSE P.F. CHANG�S CHINA BISTRO, PARADISE BAKERY & CAFE PEI VVEI ASIAN DINER PICK UP SnX, INC. PORTILLO RESTAURANT GROUP RED LOBSTER RED ROSIN DINER SOUPLANTATION T.G.I. FRIDAY$ WOOD ,- YARDHOUSE CARE'S NIKE FACTORY STORE CLARKSIBOSTONIAN NORDSTROM CONVERSE NORDSTROM RACK DC SHOES ONEILL DSW PAOLO GIARDINI ETNIES: EXS PERRY ELLIS FAMOUS FOOTWEAR QUICKSILVER NINE WEST STEIN MART OFF BROADWAY T.J. MAXX PUMA TILLY'S REEBOK TOMMY HILFIGR CKPORT U.S. POLO ASSN. SHOE PAVILLION UNOERARMOUR SKETCHERS VAN HEUSEN SPRITZ VANS VINCE CAMUTO SHIDES WOMENS APPAREL VOLCOM AEROPOSTLE AMERICAN APPAREL ANN TAYLOR HOUSEWARES & HOME FURNISHING BANANA REPUBLIC 3 DAY BLINDS BCBGIRLS AARON BROTHERS QCBG! MAXAZRIA ANNAZ LINENS BENNETTON SOMBAYCOMPANY BILLABONG CORNINGWARE CORELLE REVERE CABI COST PLUS CALVIN KLEIN HOME GOODS (TJX COMPANY) CHARLOTTE RUSSE KITCHEN COLLECTION CHARMING SHOPS LE CREUSET COLUMBIA SPORTSWEAR LINENS N THINGS DKNY MATTRESS GALLERY DOCKERS PIER 1 IMPORTS DOT'S DRESS BARN ECKO UNLTD. MEN'SAPPAREL ESPIRIT AEROPOSTLE FILENE°S BASEMENT 1% AMERICAN APPAREL FOREIGN EXCHANGE U BACHRACH FOSSIL LU BANANA REPUBLIC , INC c:BENNE"ITON GUESS .: BILLABONG H&M CALVIN KLEIN HANES BRANDS COLUMBIA SPORTSWEAR HURLEY INTERNATIONAL DC SHOES IZOD Y 0 DOCKERS JUICY COUTURE ECKO UNLTD. JUSTICE FILENE°S BASEMENT KENNETH COLE F- FOSSIL KIPLING O GAP, INC LEVIS z GUESS LIDS ,N H&M LUCKY BRAND JEANS ?. HANES BRANDS MAIDENFORM Q. HURLEY INTERNATIONAL MAXSTUDIO.COM Q IZOD MICHAEL KORS U JOURNEYS MICHAEL°$ vi JUICY COUTURE NAUTICA KENNETH COLE NIKE FACTORY STORE LEVIS NORDSTROM LIDS NORDSTROM RACK LUCKY BRAND JEANS NOT YOUR DAUGHTERS JEANS Lu MICHAEL KORS O°NEILL MICHAEL°S PAPAYA FACTORY OUTLET It NAUTICA PERRY ELLIS W 48 +��tr s i" # 1 •R � r 1 t w to r; r HILTON/ • ; r r; CONRAD HOTELS & RESORTS x•- r- vWfA7UW4r a• SHERATON HOTELSWESTIN FOUR POINTS BY SHERATON LE M�RIDIEN ST. REGIS THE LUXURY COLLECTION ALOFT .. •. , MARRIOTrINTERNATIONAL MARRIOTT•RESORTS MARRIOTTjw •RESORTS RENAISSANCE HOTELS EDITION HOTELS AUTOGRAPH• • COURTYARO EfY MAAAIO17 HOTELSAC • RESIDENCE s MARRIOTT MARRIOTT• TOWNEPLACE SUITES BY MARRIOTT MARRIOTTSPRINGHILL SUITES BY MARRIOTT'VACATION i � s • 1 • i r•� s -• 2698521.7AiMnnspDMS 038110-000212-2442/AIW/jim I" -r • •- r r ' !'r M � • � •.: '■. •- iii, SPECIALTIES 24 HOUR FITNESS ACE HARDWARE ARIZONA BARBEQUES GALORE NOBLEBARNES & BEVERAGES N MORE BRISTOL CALIFORMA NATIONAL 41 COACHCHASEBANK DAVIDS BRIDAL 0 DAVE AND BUSTERS DESIGNER FRAGRANCES & COSMETICS Ill • UNLTD. FEDEX KINKOS GELSOINS GOLD'S GYM GYMBOREE LL LL HAIR CUTTERS 0 HAIR SALON HALLMARKHANCOCK HENRY'S FARMERS MARKET •HILTON JO -ANN „t CL NAIL • -' OFFICE DEPOT PACIFIO DENTAL PARTY AMERICA SAMSONITE COMPANYSTORE & FINAL SPROCKETSSMART r, SPROUTS SLINGLASS HUT 2 TARGET ItTIME FACTORYOUTLET uj ■ M � • � •.: '■. •- iii, i i 1 r MUM .1 f. ..m.w k FEES: 44.00 TAXES: 0.00 OTHER: 0.00 PAID: 44.00 II�IIII�IIIIMIIIINII�peIInI�IIIIIIII�IIIMIIVII LEADSHEET IIIIflIIIIn111�111111�19RIMIlaI�IIIIIIIII�rIIRllI 201806270970027 009177857 m SECURE Daily Time Sensitive s t WIM, E57 -Tierra WAY Agmt about:blank Agenda Pa 1 g • 1, .0.010 14 go 24 0 M � CITY OF DOWNEY CITY CLEM City of Downey AtIn. City Clerk - - t MM --I 19EMM flaMU 7ee Fmmpt-Govammm Code Q,C, §27MA (W 0) SPAct AsovE *ir, UkE RESERVEO ..D. U-9 by and between CITY OF DOWNEY and PCCP IRG DOWNEY, LLC, a Delaware limited liability company, as to an undivided 90% interest and IRG DOYMEY, LLC, a California limited liability company, as to an undivided 100% interest Agenda Pa@98M18 about:blank 41 1 1 0 • 0 FAZIMIATHIM 100MOIJIDJOR (Above Space for Recorder's Use Only) LI�IIW T AME -i -I -FlTJL- III T TWIIEATTET EA—I' bv and between CITY OF DOWNEY and PCCP IRG DOWNEY. LLC. a Delaware limited liability comnanv. as to an undivided 90% interest" and ' IRG DOWNEY. LLC. a California limited liability company, as to an undivided 10% interest This First Amendment to Tierra Luna Development Agreement ("First Amendment") is made and entered into efibetive as of� , I pe, ,* rJ3, 2017, by and between the CITY OF DOWNEY, a California charter city, ("City"I ), ICCII IRG DO Y, LLC, a Delaware limited liability company, as to an undivided 90% interest, and IRG DOWNEY, LLC, a California limited liability company, as to an undivided 10% interest (collectively, "DEVELOPER"). City and Developer are collectively referred to herein as the "Parties." A. Whereas, on March 15, 2012, the Parties entered into the Tierra Luna Development Agreement ("Development Agreement"); B. Whereas, the Development Agreement allowed Developer to develop the Property with either the Base Project or the Enhanced Project; C. Whereas, Developer was required by Section 6.1 to make an election in writing during the first five years of the Development Agreement's term if Developer wished to develop the Enhanced Project on the Property; D. Whereas, Developer did not make such an election and therefore Developer nol wishes to codify in writing its decision to develop the Base Project on the Property; and 0 E. Whereas, the Parties also wish to amend certain sections of the Development Agreement. 028110-0002/8-14-17/hsr/jtm -I- Agenda Page 84 W4112MUMI reyUCTIM, Ulu lur gUU@-5-FT(#- THIIE101C acknowledged, the Parties hereby agree as follows: 1. DEVELOPMENT OF THE PROPERTY 1.1. DeyelqpLnent of the Base Project, Developer has elected to carry out and develop L_ the Base Project on the Property in accordance with the Existing Land Use Regulations. As a result, Developer hereby reaffirms that it will comply with the provisions of the Development Agreement that apply to the Base Project. 1.2. Develop r Election to DevSl()X Enhanced Proiect. Developer has not and will not P Development Agreement. In light of Developer's decision to develop the Base Project, the provisions of Article 6 of the Development Agreement do not and will not apply to the development of the Property. Article 6 of the Development Agreement shall therefore be deleted in its entirety. 1.3. Term with Eiihariced Proicut Election. Section 2.1.2 of the Development 4 ,Ir —withAhe-B� Project. 2. GENERAL DEVELOPER COVENANTS 2.1. 1,,,arge Format and Rernainina Connercial Development Retailers. Section 5.2 of the Development Agreement shall be amended and replaced as follows: ,10 irliwilki 4.0 9M a 10 461 F.111 0 LOWN 13 910 3.1. Develooinent of the Fire Station Site. Article 8 of the Development Agreement Property. The City no longer desires to have a Fire Station built on the Property. Article 8 of the Development Agreement, together with the definitions included in Sections 1.36, 1.37, 1.38 and 1.39, shall therefore be deleted in their entirety. Exhibit F shall also be deleted from the Development Agreement. 4. MISCELLANEOUS 4.1. Notices. Section 15.28 of the Development Agreement shall be amended to replace the Developer and its counsel with the following: 029110-0002/8-14-37ftr/jim -2- Agenda Page 85 tt'lo DeveloMr: PCCP IRG Downey, LLC 555 California Street, Suite 3450 San Francisco, California 94104 Attn: Aaron Giovara Telephone: (415) 732-7645 Telecopy: (415) 732-7547 With a copy to: Allen Matkins Leck Gamble Mallory & Natsis LLP One America Plaza 600 West Broadway, 27th Floor San Diego, California 92 101 Attn: Heather S. Riley Telephone: (619) 233-1155 Telecopy: (619) 233-1158 a fflif ITIM;A N 90,11-y 1124117.2 r1wgi Ell I) I I (g I 4.3 - o CounterparLs: This First Amendment may be executed in any number f counterparts, each of which shall be deemed an original, but all of which, taken together, shall q 028110-0002/8-14-17/hsr/jtm Agenda Page 86 IN WITNESS WHEREOF, the Parties have executed this First Amendment as of the day and year first above written. ette M. Abich Garcia "ty Attorney 028110 -0002/8-14 -1 7A s r/jIm 0810M CITY OF DOWNEY, By: Name: Its: Mayor PCCP IRG DOWNEY, LLC, By: PCCP LB IRG Downey, LLC, its Managing Me nber Name: Its: AUthonzed SlwiuLury IRG DOWNEY, LLC, i: 0 SIGMEMMEMM CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. - ------ ------- State of California County of LD6 AX&C"?5 -1Al pu/4'e- On 0� before me, G44Y") P�fj Date Here Insert Name and Title of the Officer personally appeared r-erna"do VA 60A Z_ Names) of Signer(s) 0 N 11% r�mm%_'Adrl 041 RINI NAMORNAMPRON9.0 "40. ARMOR: WANW-040 F wi# or the entity upon behalf of which the person0f) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. REBECCA ANN GUERREF10 WITNESS my ha'r,�d and official seal. Commission # 2112736 z Notary Public - California z z a z Los Angeles County Signature. My Comm. Expires Jun 19.2019 Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Number of P • Signer(s) Other Than Named Above: I'll - Sig'ner's_�ame: 9 Corporate Officer in Partner — 1:1 Limited 0 General H Individual L1 Attorney in �F�! 9 Trustee OG 11 Other: Signer Is ReeEWMfng er's Name: 0 Corporate Officer • Partner — 11 Limited 0 General • Individual 0 Attorney in Fact tor 0 Trustee El Guardian or Conservator 0 Other: Signer Is Representing: 02016 National Notary Association - www.NationaiNotary.org - 1 -800 -US NOTARY (1-800-876-6827) Item #5907 NZME3�� CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County hPWea, M Date -dary-M&-, On M-7— before me, and Title of the Off, cer qAte- Hem Insert Name t1iD V 1 personally appeared _0 1,__L Name X of Signer(o 11 �1 699140 1 1 NOW 1,1M., wo I i 1 -cm -.1114 1 �%,q I fpu a KA irm tro 1 tK41 wel 2 j L" a M I - ra J�U; ted, executed the instrument. 1 ac I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Signet o Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Partner — 0 Limited 0 General • Individual 0 Attorney in Fact 0 Trustee [I Guardian or Conservator 0 Other: Signer Is Representing., Number of Pages: Signer's Name: 0 Corporate Officer 0 Partner — El Limited 0 General 11 Individual El Attorney in Fact 0 Trustee El Guardian or Conservator 11 Other: Signer Is Representing: 02016 National Notary Association - www.NationaiNotary.org - 1 -B00 -US NOTARY (1-800-876-6827) Item #5907 first above written. CITY OF DOW-AET, Wer" ......... ... L 1� Ir CCP IRG DOWNEY, LLC, WIT4TW Maria Alicia Duarte, CMC Interim City Clerk 11M By: PCCP LB IRG Downey, LLC, its Managing Member By: Name: Its: IRG DOWNEY, LLC, Al Yvette M. Abich Garcia City Attorney 028110-0002/9-14-17/hsr/jtm -I- BlEadmim By: S.L. Prop i s, I By Narne:_)(�IN vx� N. J&g� Its: 'fAul Agenda Page 90 # =11"' lam is attached, and not the truthfulness, accuracy, or validity of that document. ss. On August 15. 2017 . before me, Renav fretic Cardona Marqqez Notary Public personally appeared John A. Mase . who 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 he executed the same in his authorized capacity and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. TTMITC•- 1 12= (Seal) Signature 1 11i 1 1151111' 11,11 1! 1 il 1114 Jlii�l 91,111, 1 lw_w_ Am, MAM go I OWN ZA XK81 CA 1101 1AVA City of Downey Attn: City Clerk Downey, •CA 241 090��Ml SECOND AMENDMENT TO TIERRA LUN DEVELOPMENT AGREEMENT by and aniong CITY OF DOWNEY. PCCP IRG DOWNEY, LLC. IRG DOWNEY. HX, and LIS V1 DOWNl_-1'Y, I.IX This Second Amendment to Tierra Luna Development Agreement ("Second Amendment") is made and entered into effective as of , 2019, by andamong the CITY OF DOWNEY, a California charter city ("City"), PCCP IRG DOWNEY, LLC, a Delaware limited liability company, as to an undivided 90% interest, IRG DOWNEY, LLC, 2 California limited liability company, as to an undivided 10% interest (collectively, "Developer"), and US VI Downey, LLC, a Delaware limited liability company ("Buyer"). City, Developer and Buyer are collectively referred to herein as the "Parties." A. Whereas, on March 15, 2012, the Parties entered into the Tierra Lu Development Agreement ("Development Agreement"); I B. Whereas, the Development Agreement allowed Developer to develop the Property with either the Base Project or the Enhanced Project; C. Whereas, on September 13, 2017, the parties entered into the First Amendment t* the Tierra Luna Development Agreement ("First Amendment"); D. Whereas, Developer was required by Section 6.1 of the Development Agreement to make an election in writing during the first five Nears of the Develol,3menLAgreement's term if Developer wished to develop the Enhanced Project on the Property; E. Whereas, Developer did not make such an election and Developer codified in writing its decision to develop the Base Project on the Property in the First Amendment; Error! Unknown document property name. Error! Unknown document property name./Error! Unknown document property name. Error! Unknown document property name. -Error! Unknown document property nameA -28-19/Error! Unknown document property name./Error! Unknown document property name. 12908308.2 F. Whereas, the Developer Owned Property has been sold to Buyer, but Developer has retained the Developer Leased Property; and G. Whereas as part of the sale of the Developer Owned Property, Developer and Buyer have entered into an Operating Agreement, dated September 21, 2018 ("Operating Agreement"). NOW, THEREFORE, based upon the foregoing Recitals, which are incorporated herein by reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: 1. TERM OF THE AGREEMENT 1.1 'Extension or Term. City, Developer and Buyer hereby agree to extend the Term of the Development Agreement pursuant to the authorization in Section 2.1.1 of the Development Agreement. The extended term of the Development Agreement shall commence upon the Effective Date of this Second Amendment and shall continue thereafter for ten (10) years. 2. MISCELLANEOUS 2.1 Notices. Section 15.28 of the Development Agreement, which was previously amended in the First Amendment, shall be further amended to add a notice address for Buyer. Such notices and communications as described in Section 15.28 shall be given to Buyer at the address set forth below: if to Bliver: c/o Northwood Investors LLC 11355 W. Olympic Blvd., Suite 100 Los Angeles, California 90064 Attn: Daniel Palmieri Facsimile: (310) 943-1685 With a copy to: Pircher Nichols & Meeks LLP 1901 Avenue of the Stars, Suite 1200 Los Angeles, California 90067 Attn: Real Estate Notices (DBG/ADK/5080001.5) Facsimile: (310) 201-8922 2.2 Defined Terins: Capitalized terms that are not specifically defined in this Second Amendment shall have the meaning assigned to those terms in the Development Agreement or the First Amendment. 2.3 Full Force and Effect. All applicable terms and provisions of the Development Agreement, the First Amendment and the Operating Agreement remain in full force and effect, except those that are specifically modified in this Second Amendment. 1! ''1 1, 11, ;�I, F11 J11 JI 11111 111 11111 L 11 .1 111111 -111 .11111 L 129083082 2 Agenda Page 93 2.4 CoutiterDarts: This Second Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, City, Developer and Buyer hereto have executed this Seco Amendment the date and year first above written. I "CITY" CITY OF DOWNEY, a Municipal corporation of the State of California ■ "DEVELOPER" PCCP IRG DOWNEY, LLC, a Delaware limited liability companj [**,'y: PCCP LB IRG Downey, LLC, its Managing Member "DEVELOPER" IRG DOWNEY, LLC, a California limited liability companJ By: IRG 111, LLC Properties, Inc. By: Name: Its: 12908308.2 3 Agenda Page 94 US VI DOWNEY, LLC, 9- Delaxig.re li"d liabilitv comnany R" y: US VI CP, LP, a Delaware limited partnershi its Sole Member I By: BVK US VI CA GP, LLC, a Delaware limited liability RWIMPI I "Irly, 12908308.2 4 Agenda Page 95 document. "o -Which this certificate is'attached, and not the truthfulness, accuracy, or validity of that document. On , before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the •' •. or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. INVIUM wi= 12909308.2 5 Agenda Page 96 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. • M, WNT W-1 • • On before me, , a Notary Public, personally appeared who proved to me • the basis • • evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their t by his/her/their signature X) • the instrument the qerson(a•, the entity upon behalf • which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that thi* foregoing paragraph is true and • IMUT M -I M= 129083082 6 Agenda Page 97 • =111 REQUI R10=11 Mwa-00-MMIT2-MMI 9--61wrIff" MI -I I] I I Lvj I In kIAL"I I I Pi I all I RIX" I IV Rug kkvB farg lunt" I L-14 "L, I ILR 0 ILSIM tics qVII of Ito I g luilw1w. tol-11 1 r! twAlift'ra I Iq I I FMEI 1 raw i • LMMI'IIIVAIIJ� On I before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized ca acit esi and that bi his/her/their si naturis) on the instrument the Derson(s). or 11 117AM III IVA I I IDJ IN 91M I K I I IM WVA I I M IM I E-70 01M ViSM I WAM61 KKI I! I U-00MMIMI F certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. IT ff 01�- I 0!= 12908308.2 7 Agenda Page 98 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the (ruthfuhiess, accuracy, or validity of that document. I . 91 . . County of On before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their the entity upon behalf of which the person(s) acted, executed the instrument. [ certify under PENALTY OF PERJURY under the laws of the State of California that the iroregoing paragraph is true and correct. /290830z 8 Agenda Page -- State ol-CaTilornig • •' On , before me, , a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their 2 IV to A TWIV W IP or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws • the State • • that the foregoing paragraph is true and correct. 12908308.2 9 Agenda Page 100 MINUTES REGULAR MEETING DOWNEY CITY PLANNING • • WEDNESDAY, . 6,2019 COUNCILCITY CHAMBERS, .: s . . •.... • . AVENUE ` ■ • CALIFORNIA •.. Chairman Dominguez called the February 6, 2019, Regular Meeting of the Planning Commission to order at 6:33 p.m., at Downey City Hall, 11111 Brookshire Avenue, Downey, CA. After the flag salute, Secretary Cavanagh called roll. COMMISSIONERS PRESENT: Miguel Duarte, District 1, Vice Chairman Patrick Owens, District 2 Steven Dominguez, District 3, Chairman Jimmy Spathopoulos, District 4 Nolveris Frometa, District 5 OTHERS PRESENT: Aldo E. Schindler, Director of Community Development Yvette Abich Garcia, City Attorney David Blumenthal, City Planner Madeline Welch, Assistant Planner Mary Cavanagh, Secretary Matias Flores, Former Commissioner Gail Karish, Attorney with Best Best and Krieger CONFERENCE/MEETINGPLANNING COMMISSIONER ANNOUNCEMENTS; REQUEST FOR FUTURE AGENDA ITEMS; AND • Dominguez stat -s this yeargoing to be open and educational. • • • � s• • •lip + III + • + 1 Chairman Dominguez stated Mr. Flores provided great mentorship. Commissioner Owens stated that Mr. Flores provided great guidance on how to view what was being presented. Vice Chairman Duarte echoed what the prior Commissioners stated and added when he joined the board Mr. Flores provided a great role model. Commissioner Frometa thanked Mr. Flores for his work and time spend on the Commission. Commissioner Spathopoulos stated Mr. Flores has a great reputation. Mr. Flores thanked Ms. Cavanagh, Ms. Garcia and Staff. He stated is was a pleasure serving with the Commissioners. It was • -• by • • - Owens,• •-• by • •Frometa,• passed by / s 2dopt ResolutionNo.19-3081,-• approving Resolution of Appreciation • •Flores. Attachment «E" Planning Commission Minutes February 6, 2019 Gail Karish with Best Best and Krieger, gave a presentation of the wireless regulations landscape. Federal Laws Impacting local authority preempts local discretion to modifications, they must be approved. In addition, wireless towers cannot be prohibited, without substantial evidence in writing, and cannot be regulated based on concerns about environmental effects. Approval must be provided within 90 days for add-on and 150 days for new tower construction. Shot Clocks are applied to any request for authorization. Small cells now have 60 and 90 days to get approved. State Laws stated the Conditional Use Permit cannot be for less than ten years. Commissioner Spathopoulos asked about spacing requirements. Ms. Karish stated that would be in the City's Plan. If the carrier feels it is prohibiting them from installing effective equipment, then the carrier could file a law suit. City Attorney Garcia stated the City is currently working on the requirements that will go in effect on April 15°h. City Attorney Garcia stated there are some zoning laws in place that might need to be addressed so that the City complies with FCC regulations. Commissioner Owens asked if a city could push the carriers in the direction they would like them to go, such as micro towers versus macro towers. Ms. Karish stated that a city cannot design the network for the carriers. Vice Chairman Duarte asked about the shot clocks distinctions. Chairman Dominguez feels the situation is alarming since they cannot bring up the radio frequency concerns. He asked about the potential impact on property values. Ms. Karish stated that is not a successful reason for denial. The cities that have success denying requests are the ones that have very clear aesthetics standards that cannot be meet by the carrier. Chairman Dominguez asked if they can require carriers to use existing poles. Ms. Karish stated that is where the city has the most authority in regulating the carriers. She said as more and more towers are added to a city they can do an accumulative RF impact request. Director Schindler stated they can look in to adding it as a code amendment. Commissioner Owens asked about local area networks. Ms. Karish stated the carriers must meet FCC standards even if they are not presented in the reports to the cities. Commissioner Frometa asked if there are limits to the weight and equipment that can be safely placed on a pole. Ms. Karish stated there are regulations that must be used to determine if a pole is safe or if it would need to be replaced with a stronger pole for a safe installation. Commissioner Spathopoulos asked if there has been a city that has successfully composed ordinances that meet all the conditions that were accepted by both the city and the carriers that can be used as a guide. Ms. Karish stated although there are a lot of similarities every city has its own unique requirements. A 3, PLN -18-00033 JPlanned Sign Program... i.fl ion : Chairman Dominguez opened the public hearing for PLN -1800033 and Ms. Cavanagh affirmed proof of publication. Assistant Planner Madeline Welch presented the request for a proposed modification to an existing planned sign program at the Gardendale Center. Planner Welch reviewed the existing building, surrounding uses and parking. The applicant is requesting a modification to the existing sign program to enhance the overall appearance of the center. Each tenant space will be allowed 1.5 feet per linear foot of tenant space. The signs will be 24 inches high and internally illuminated. Commissioner Spathopoulos asked if each individual sign will have a height difference. Director Schindler stated the goal of the Sign Program is uniformity subject to national logos. Vice Chairman Duarte clarified where the second signs for the end units will be located on the building. Commissioner Owens asked about the signs for the kiosk. -2- Planning Commission Minutes February 6, 2019 Disclosures: Commissioner Owens stated he uses the key shop in the center. Applicant: Scott Lee and Alexis Estrada were present for the hearing. Mr. Lee thank everyone and stated they made the request for an upgrade to beautify the corner. Correspondence: None. Public Comment: None. Staff gave recommendation to adopt Resolution No. 19-3080 approving Planned Sign Program Modification (PLN -18-000033). Chairman Dominguez closed the public hearing. Commissioners spoke in favor of the request. It was moved by Commissioner Owens, seconded by Commissioner Frometa, and passed by a 5-0 vote, to adopt Resolution No. 19-3080, thereby approving Planned Sign Program Modification (PLN -18-00033). 4. Amendment to Development Aareement: Chairman Dominguez opened the public hearing. Director of Community Development Schindler presented the request for an Amendment to the Development Agreement to the Prominade. Director Schindler stated the request is for a ten-year extension to the development agreement. They want to make sure the remaining 21 acres are developed in the best way for the city. The developer is currently negotiating with Marriott regarding the hotel that will be built on the site. Also, the Kaiser facility expressed an interested in a section of the land. They are currently using a section for parking while construction is taking place at their facility. Then there is the historical building that they must incorporate into the plans. The City has been in partnership with the land owner since 2003 and look forward to a long partnership in the future. Commissioner Frometa abstained since he works at Kaiser Permanente. Commissioner Spathopoulos asked about the ownership of the property. Commissioner Owens asked who will maintain the property for the 10 years. Director Schindler stated they will stay on top of the lessee to make sure they keep the land maintained. Commissioner Owens stated he feels the historic part will be hard to lease. He feels the temporary use of the space for a firehouse while the existing firehouses are upgraded is a good idea. Commissioner Owens suggested finding a STEM program that could use the historic space. Vice Chairman Duarte asked about the restrictions of the historical building. Director Schindler stated the outside of the historic building must stay the same. Since the building is such an odd shape it is hard to get a retailer in the site. Chairman Dominguez asked why it has taken so long to develop the land. Director Schindler stated it was an extremely complex real estate transaction. The land had to be purchased from the federal government in parcels. In addition, there were covenants that stated when the land could be sold and developed. Chairman Dominguez stated the company that bought the land knew of the covenants, therefore, they should have taken that into consideration when they first took on the project. -3- Planning Commission Minutes February 6, 2019 Disclosures: None. Applicant: Jeffrey Cook stated they are proud of what they have done with the Prominade. They have since sold the Prominade. Mr. Cook's company currently leases the remaining 21 acres from the City of Downey. He said there are 53 years remaining on the lease. Chairman Dominguez asked if they already have concrete plans for the site. Mr. Cook said they are in the process of finding tenants. Chairman Dominguez asked what has taken place in the last 16 years. Mr. Cook stated that the down turn of the economy in 2007 impacted the progress of the development. They emerged from the recession in 2010 and modified the development agreement. The agreement was finally approved in 2012. In 2012 they demoed the site and encountered environmental issue from the previous use at the site. Due to the environmental issues, the waterboard approval took an additional two years. They focused on developing the other 60 acres while they were addressing the issues with to 21 acres. Chairman Dominguez asked if 10 years will be enough time. Mr. Cook stated 10 years should be enough. They are motivated to get the site developed. Chairman Dominguez asked about the hotel and how many acres they will need. He also asked what Kaiser would like to do with the land. Mr. Cook stated the hotel site will be 3 acres and they do not know how Kaiser would like to use the land. The remaining 18 acres are zoned for medical office and retail. Chairman Dominguez asked what will happen if Kaiser does not use the land. Mr. Cook stated they will still have a strong pull for medical office use due to the proximity to Kaiser and they also can offer retail pad sites. Commissioner Spathopoulos asked how they are looking for the tenants. Mr. Cook stated they hired brokers to find tenants. They are talking with Kaiser however, Kaiser is very slow moving. They have a retail broker and an office broker working on finding other tenants. Commissioner Spathopoulos asked if they have any large tenants that have committed. Mr. Cook stated they are currently in negotiations with several tenants and the site will not be hard to sell. Chairman Dominguez stated he is not happy with the way they developed the first 60 acres. Correspondence: None. Public Comment: None. Staff gave recommendation to approve the second amendment to the development agreement. City Attorney Garcia said the recommendation would be for the City Council to approve the second amendment. The Commissioner Spathopoulos stated he feels he does not know enough what their plan is to decide. Director Schindler stated that it is not the role of Planning Commissioners to dive into the leasing plans and the tenants or business transactions. It is the application to the code that is front of them. City Attorney Garcia stated there are two criteria in the resolution that must be meet. They can only make the decision based on the two criteria. Commissioner Owens stated ten years is too long and would like to shorten the extension. He also does not like the way the 60 acres were developed, and he does not frequent the stores. He stated he does understand the historic site will be hard to find a tenant. Still he feels the length should be shortened. Planning Commission Minutes February 6, 2019 Chairman Dominguez stated they should be uniform in the way they handle the requests. He does not think a trailer should be added to the recommendation, instead, Staff should come back with an amended resolution. Director Schindler stated that this is a different situation. This time they are making a recommendation and not a decision. Commissioner Spathopoulos said they should recommend that they approve five years instead of ten years. Chairman Dominguez stated he would like to recommend approval. It was moved by Commissioner Spathopoulos to extend the development for five years, seconded by Commissioner Owens, and passed by a 4-0-1 vote, with Commissioner Frometa abstaining, to adopt Resolution No. 19-3082 to recommend approval to City Council with recommended amendments. It was moved by Commissioner Owens, seconded by Vice Chairman Duarte, and passed by a 4-0-1 vote, with Commissioner Spathopoulos abstaining, to approve the minutes of October 3, 2018, meeting. 6. PLN -19-00012 (General Plan Consistence) Commissioner Owens asked if they are adding the City parkway to the parcel to make the shape of the parcel better. Director Schindler said Public Works is going to use some of the space to improve the turn lanes. The remaining space can be sold to the developer (3500 sq. ft.). The two existing buildings will be scrapped, and a new fast food restaurant will be built. They are in front of the Planning Committee now to get approval for the sale for the future use. Staff's opinion is it complies with zoning. It was motioned by Commissioner Owens, seconded by Vice Chairman Duarte, and passed by a 5-0 vote, to approve the General Plan Consistence (PLN -19-00012). OTHERBUSINESS: Commissioner Frometa asked about the lighting around the window display at the Hookah Lounge. The Code Enforcement Officers presented the owner with a Notice of Violation. Commissioner Owens thanked Staff for following up on the Commissioners' concerns about the microwave dish on top of the historic McDonald's. He also thanked Staff for addressing the stop needed at the exit at the Starbucks drive-thru. Commissioner Duarte encouraged Commission Spathopoulos to attend the upcoming conference for the Commissioners since the information gained is invaluable. Director Schindler stated everyone has signed up for the conference. Chairman Dominguez reminded everyone that the objective is to make this an educational year. STAFF MEMBER COMMENTS: Director Schindler stated Staff received a grant from Metro to conduct an analysis for the future light rail station that will be located on the southern portion of Ranch Helos Amigos. ADJOURNMENT: Chairman Dominguez adjourned the meeting at 9:23 p.m., to Wednesday, February 20, 2019, at 6:30p.m., at Downey City Hall, 11111 Brookshire Ave. -5- 11TIlm T1rwz§=- maml �0�# APPROVED AND ADOPTED this day of _ 2019. 0• of [6HFj:1F=1[ 1160191111111 • I HEREBY CERTIFY that the foregoing Minutes were duly approved at a Regular meeting of Planning Commission held on this day of , 2019, by the following vote: I 0 mm= 1 1 Fill UNIF111 I•IT, I IT, I FVQ4 M kq In 0 mm= 1 1