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Home My WebLink About08. Adopt Ord - Approving 2nd Amd -Tierra Luna Dev Agrmtlll-TtA\ C+ APPROVED BY CITY MANAGER TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: OFFICE OF THE CITY MANAGER BY: ALDO E. SCHINDLER, DIRECTOR OF COMMUNITY DEVELOP EN DATE: APRIL 9, 2019 Staff recommends that the City Council adopt the following titled ordinance: •-rLei *61 am 4LIq I W&O16111•] a 92, 1 4uld 1 WAL61 A r• ,..-• • r r • r •• r r• • r • At its March 26, 2019 meeting, the City Council introduced the attached ordinance, and after fully considering all oral and written testimony and facts and opinions offered, introduced the attached Ordinance. Economic Vibrancy This item will not impact the City's General Fund. SECOND AMENDMENT TO TIERRA LUNA DEVELOPMENT AGREEMENT BETWEEN THE CITY OF DOWNEY, PCCP IRG DOWNEY AND IRG DOWNEY APRIL 9, 1 PAGE 2 ATTACHMENTS Attachment t. OrdinanceTierraDevelopment Agreement,i Second Amendments i Tierra Luna Development Agreement) 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 IRG 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 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, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES ORDAIN • • 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. Rick Rodriguez, Mayor Maria Alicia Duarte, CMC City Clerk ATTEST: 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'n day of March, 2019, and adopted at a regular meeting of the City Council of the City of Downey held on the 9th day of April, 2019, by the following vote, to wit: AYES: Council Members: NOES: Council Member: ABSENT: Council Member: ABSTAIN: Council Member: 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 n - W - r. IIIIIIIIIIIIIIIIRIIIIIIIIIVIIIV�IInIIAIM�VIIIIIWIIn�W�l�u 201204200170027 i�einm�iAnmo 0.00 0.00 0.00 0.00 003936047 wJ Our" J I � � I I i I I I � I I 11111q� 111�ipi�pp��i ON Me: I I MANN W 1401E X THIS INSTRUMENT FILED FOR RECORD BY FIRST AMERICAN 0412 012 URA TITLE INSNCE CM AS AN ACCOMMODATION ONLY. i IT HNO AS T BEEN EXAMINED AS TO ITS EXECUTION OR AS 10 ITS EFFECT UPON TITLL iII111 RECORDING REQUESTED BY *20120588430 - AND WHEN RECO RDED MAIL TO: CITY OFDOWNF,Y I I I II Brookshire Downey, CA 90241 Attn: City Clerk (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. 2698521.7/iManage DWI S 028110-0002/3-14»12/J1'NVW TRA LUNA 1)1:&Tj 41 IKOI W 05 1 Mg 11 111 by and between PCCP IRG DOWNEY, LLC, and IRG DOWNEY, LLC, d " 1: A- il xkl= i P 1� u4F l. DEFINITIONS.... —_........ ~.—__,--................... —.—_—'-__—........... ......... .3 2. TER]0(................. ...... ............ ..... ..... ...... .......... --.---,—_..-......... ..—..11 2.1 Term ................. .......... ___ ....... ,.......... .............. --.--....... ---... ..l� 2.1.1 Term without Enhanced Project Election ....... ___ ........ .............. .___ --.11 2,1.2 Term with Enhanced Project Election ................................................ '. \\ 3. DEVELOPMENT 0FTIRE PROPERTY ............................ ___ ..... ....... ___ ........ ._-ll l5 3.1 Applicable Vested Right to ...... ............. ..--..—_..)l 4,2 Other Fees and Charges .................................................... .... ___ ... ...... ....,... 3.2 Tentative Subdivision Maps ...................................... ____ .... ........ —........ --|% l8 3.3 Processing ofApplications and Permits ............................................. —......... [2 3.4 Other Governmental Permits ................................................................... ---... 12 3.5 Subsequent General Plan Amendments and Zmoc Changes........... .... —_--'l2 4/4/4 ..................................... ~......... .................. ............. ...l7 3.6 Timing of Development ................ ........ ...... ............ ............ ~........... ...... /3 3.7 Reservations ofAuthority .......... .................................. ................. ._.—__—)3 3.7.1 Consistent Future City Regulations .................. ........................ .—... 13 3.7.2 Overriding State and Federal Laws and Regulations ........................ .... |4 3.7.3 Public Health and Safety ............ ........ —'_--_-----^_----_l4 { 3.7.4 Uniform Construction Codes ... ....~...—....—.................. .,_.....—.—l4 3'7.5 Police Power .................................. ...... ....... —.......... ........... _...... —..l4 3.8 Large Format Retail Development Easement ....... ............................ .|4 19 Signature Entrance ...... ......................................... ...... .... -............. ........... — 15 3.10 City Infrastructure Improvements ............................. ....... .—....... ......... —.... 15 4. FEES, CONDITIONS, PUBLIC BENEFITS, AND AUDIT RIGHTS ....... ................. l5 4`1 Temporary Fee Rebate .................................. ,...... .... .—.............. .............. l5 4,2 Other Fees and Charges .................................................... .... ___ ... ...... ....,... l5 4.3 ........................... ........ ......... ,~-.............. ...... ...... ....... —.—... l8 4.4 Accounting and Revie9/............. —....... .—.____ ........ ................................ l6 4.4.1 Maintenance of Books and Records ....................................... ............. l6 4.4.2 Allocation ofCosts and Expenses ............ ........ --._...---........ l6 44.3 Non -Waiver By City ......................... —... .... ......... ----......... ___ l6 4/4/4 ..................................... ~......... .................. ............. ...l7 5.2 Large Format and Remaining Commercial Development Retailers .................. 17 680w29/10-0002 5.6 Maintenance Covenant ....................... .................. ..... ..................... ,............ .l8 5.6.1 General Maintenance OfProperty .................... ---.—........... —........ l8 5.6.2 Graffiti ........... ........ .......... —.--........ .......... ....... ____ ... .~......... l8 5J6'3 Lien Rights .... ............ ..... ..—............. ............ ____ ...... ....... ....... 19 6. DEVELOPER COVENANTS RELATING TOTHE ENHANCED PROJECT ........... lQ 6.1 Developer Election TnDevelop Enhanced Project ............... —_—....... .-.—..l9 6^2 Applicability of Base Project Covenants .............. ..... .... ... .---.... .......... l9 6] Operating Covenant ...................... --.—......................... ~..-...... .......... ...... l9 6.3'1 Conduct of Required Operations .................... ~.._.....^~............... l9 6.3.2 Annual Grant Payment ...... ... .—..................... ....... .............. ___ ~.... l9 6.3'3 Certif icatioo............................................................................................ 20 6.3'4 Use Restriction .................... ....... .-.—......... .........~...-............ ...... 20 6.3.5 Covenant toMaintain Property ooTax Rolls ... ................. 20 6.3.6 NO Conveyance to Tux Exempt Entity ........... ....... .-.... .......... ......... .2O 6.3.7 Quality uJImprovements .................. .............. ..—........ .—.......... ..—.2 0 7' .... ............................. .~.... ... ....... ......... .................. -?l 7] Obligation to Refrain from Diacrimioution.................... .......................... .2l 7.2 Form OfNon-discrimination and Clauses ............................... 2( 72'1 Imdeeds ............. --._....... ..._--..-..—.............. .............. ...... ... 2| 7.2.2 Iuleases ............ ....... .............. ._._............................................... .... 21 8.5 Conveyance of Fire Station and Fire Station Site to City .... _.._ ....... ....... 22 9. DEFAULT, REMEDIES, AND TERMINATION ................. ..—....—...—......-%3 9.1 Notice and OpportunitytOCure ................................... ........................ ..,.._~~23 9.2 Default Remedies .................. .......... ........................ ................... ......... ........ 23 9.3 Developer's Exclusive Remedy .................................. .—........... ....,........3S 9.4 Force Majeure ...-_..._............—.—..............—...—......_...,._'-Z4 10. ANNUAL REVIEW ..... —_............. —.................. ............ .---.---.1................ 24 10.1 - Timing nfAnnual Review ............................................... ____ ........................ 24 10.2 Standards for Annual Review ............... �..._.................... ............................ 24 l|, MORTGAGEE RIGHTS ...................................................... .................. .................... 25 11.1 Encumbrances on the Property ....... -.................... .......... —... ... ............. ..~.25 68010281 W-0002 191 11.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ........ .............. —, 25 12. ASSIGNMENT ........... .... ...... ........ .......................... .................... ......... ........... 26 12] Right toAssign ................................................................................ ..~.......... 26 12.2 Release Upon Transfer ofAgreement .................. --....... ............ ........ ....... 26 12.3 Assignee Subject o}Terms uf Agreement .... ......................................... .......2O 124 Release Upon Transfer of Interest in Leased Property ..................... --- 26 13. INSURANCE AND INDEMNITY ..................... ..... --- .... ........ .......... .................... 27 l3,1. Insurance .......... ..... -...... --- ...... ~---- .......... ........... .-..... ---- ................... ..27 13. 1.1 Base Project Insurance ......... ---_-----.......... ........ ---- ........... .27 13.1.2 Enhanced Project Insurance .................................................................... 27 }3.[3 Insurance Does Not Relieve Liability ............................ ........................ 27 13.1'4 Default for Failure bn Maintain Insurance ........ ..... ..... .—........ ...... 27 11.2 Indemnities bvDeveloper ............... ............................ ...... ---- ........ ........... 27 132.1 General Indemnity ................................................................................... 27 13.2.2 Prevailing Wage Indemnity and Notice to Developer of Labor Code Section 178i. ,-.........,....—...—,................-...—...27 13.2.3 Environmental Indemnity .................... .......................... ...... ....... .......20 13'3 Indemnification Procedures ..... ... .—............ .............. ........... ....... ....... ...29 13.3.1 Prompt Notice ...... ........ —....... ...... .--....... ---_-------...29 13.3.2 Cooperation .... ........... —..... .............^��........ ............ 29 13.3.3 Settlement .............................................. --- ................ ........... ...-...'29 13.3'4 City Cooperation .... .~—..... .......... .—_.--- ............. .......................... 29 15. 8& ....................................................... ......... -....... ....... ..—....... 30 15,1 Compliance with Applicable Law ....................... ..--....................... ........ ... 3& 15.2 Covenants ................ .................... ...... ...... .............. ........... ......... ................ 30 15.3 Mutna:l Covenants ................................. ---- .... -.......... .—.—....... ..... ---- 3Q 15'4 Recordation of Agreement ................................. —..... ---- ........... ....... ....... ...3U 15.5 Constructive Notice and Acceptance.................... ...,-....—....... —~.......... 30 15.6 Successors iuInterest ..................................... ....... ................ —.—........... ..30 1I7 City Manager Implementation .... ..... ........... .......,~.............—.............. 3O 15.8 Political Reform Act ...................................... ........... ...... .—...—................... 3l 15.9 Survival of --.—.......,..._....--....--.............. 15'10 Entire Agreement; Waivers and Amendments ...................... _—................... 3l 1I11 Principles of Interpretation ............ ..... ....... ............. .._--........ .-............ .31 15.12 IncorporationnfRecitals .......... ................ .--_.--.—_---,-._......... ]2 15.13 Section Headings and Section and Article References ........................................ 32 15,14 Singular and Plural .................................. --- ...... ....-..................... ..32 6801028110w002 ' 15'16 Time ufEssence ......................................... ............................... ...... ^~....... ...... 32 15.17 Further Actions and Instruments ...... .... ......................................... ................. 32 15]8 Severability ......... ................. ..~,........... ..... -...................... ....... ................... 32 15.19 Legal Expenses .................... ................. ................. ..................... —_---. '.S2 15.20 NmThird Party Beneficiaries ...... .......................... ..... ___ ........... ........... ...-^~33 15.21 Relationship Of Parties..... ........ .......... ....... ____ ................. .~.................... 33 1.5.22 Development as a Private Undertaking ............................. —..—,............ .... 33 15.23 InspectionVfBooks and Records ..................................... .—..—............. ..3] 15.24 Estoppel,Certifivate.,...... ....... ........................ ~^`^^^^^^~^^^'--^^^^''^'—'.]3 15.25 Applicable Law; Venue .... ............. ____ ......... ...—........ ^............. ._...~.,.34 15.26 Non -Liability ofCity Officers and Employees ............. ...... ......... .—._—.]4 15.27 Non -Liability ofDeveloper's Officers and Employees ...... ................................ 34 1528 yJwtcea—........... ..—.--.......... ........ ---_-------....... ....... !—.......... 34 15.29 Representation as to --''-^^~'—~~^^'^'~^^^^~~^-^—^--'—^'—]5 15,30 Representation msh]Ownership ,_...,.^_~_,,,^.,.~^,...... ............ -----.35 15,31 Authority t0Execute .... ..........^~.^..~.......... ............... ... ............. ..-...35 15.32 Authority toExemute--....—............. .... ~----...... ........................ ...35 15.33 Execution of Counterparts ............. ....... --................... ....... ,.35 680w2110-0002 -m . - 269852 L.7 aG3/14/ 12 This TIERRA 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 ?in undivided 10% interest (collectively, "Developer"), City and Developer are collectively referred to herein. as the "Parties" and individually as a "Party." A. To strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development, the Legislature of the the Government Code. The Development Agreement Statute authorizes City to enter into an 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 "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 M." (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." F. Through this Agreement, the City has committed to provide certain vested righM to Developer in exchange for (i) the development of the Base Project on the Property, and 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 Wycemer.ts,2&1 kAefit.-b, :V;vel-v1er iA cxak-2-zg-. f*r t.'�c fcvclw,7,=>*vf tke Ex�qxcet Prrkect 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. 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. 269852 1, ?/NanagoDMS 0 2 9110-000213-14.12MNYlao 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: 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. 1.7 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 "Certificatt of Occupancy" shall mean A Certificate •' Occupancy as defined in the Uniform • Code, 2010 Edition, published by the International Conferenc-1; of • • as may • • 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 under 269852 L ViManaeeDMS 028110-000213-14-121MA/1me -3- Section 6.1 of this Agreement, and (H) 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. MMINUM932=0 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. 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 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 anyjudgment, 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 0 any applicable local, state and/or federal law or regulation, including, without limitation, any 0 applicable federal and/or state labor laws or regulations (including, without limitation, if W 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 0 U_ required by Labor Code Section 1781 and/or Davis Bacon, as the same may be amended from U_ time to time, or any other similar law or regulation. 0 C cc 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, 2698521.7/iManageDIVIS 0 028110-0002/3-14-1213DIfte 4- 0 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 CFR Part 1, as the same may be amended from time to time, or any other similar law or regulation, 1.2' ) The term "Developer" shall mean the individual or entity which owns fee title 4 the Developer Owned Property, or any portion thereof, and holds the leasehold interest in th-* Developer Leased Property, or any portion thereof, and any permissible successof or assignee a t Wyiights�ktxwers, and resi�ionsibilities of said individual or entit�j 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 Specc Plan Area, within the City of Downey, County of Los Angeles, State of California, as more particularly described in the legal description attached as Fxh,ibit "C" and depicted on Exhibit "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 Dow( ,ley, County of Los Angeles, State of California, as more particularly described in the legal description attached hereto as Exhibit "A" and depicted on Fxhibit "13" (the "Developer Owned Property"). 1.26 The term "Developer Representative" shall have the meaning set forth in Section 5.5. ffl613sI%TIIlnM*I FIONWIVOMIUMISM If 11 111 1- of; i 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 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 7AManageDW 028110.0002!3-14-32/ ThIllae W401 OV 91 :1 N IVA 1:4 LTA Lem I 1.32 The term "Environmental Matters" means Q) the presence of Hazardous Substances on, in, under, from or affecting all or any portion or the Property; (ii) the storage, -VA' neration, leak, abatement removal or release discharge". ' 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 141IJIM-41111i 1 04111 Kwill 1011 Iwo] =all W.) "INI IN 0 W1116101; 1101 1 911110 V11, 1XI, ILIII&Ct, U111111 Ul ULIVUL1116 mi ke- 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 at I 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 direct or indirect iv* *7 pfckii-apvhip �r&rwt- inw�-oa--� 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 Perso-r. NNONEWIRM 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 shalt be appointed with amenities and facilities that are the functional equivalent of those zt a typical fire station headquarters existing at the time of the development of the Fire Station. 2698521.71iM=SeDMS 028 t 10-00OW.14424'rNf/W -6- J I I i I 1.37 The Term "Fire Station Construction Costs" shalt mean an amount not to exceed Four Million Four Hundred ThoLisand 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 Linder the Fire Station Lease shall equal -rive 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 1 1.40 The term "Floor Area" shall mean the total area of all floors conta,ined within the exterior walls of all buildings on the Property. 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 D. 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 Required Operations are established and maintained on the Property, and continuing -for nineteen years thereafter; 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 shall constitute "Hotel Development" under this Agreement. 1 A4 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 CTSCA") [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 J, or by the EPA, or any successot authority, as hazardous substances [40 CFR Part 3021; and those substances defined as 2698521,7AMwmSeDMS 0281 10-0003-14-12=Vlae 7- "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 Linder federal, state, or local laws or regulations and in the regulations adopted pursuant to said laws, ?nd shall also include, without limitation, asbestos, polychlorinated biphenyl, flammabk� explosives, radioactive material, petroleum products, and substances designated as a hazardous qstance 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 (SWr, Fe -&r ,our W_i* 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 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] AMMUMOMAM 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 zstablishments, 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 a Person is entitled to be reimbursed for its Legal Costs), including reasonable attorneys' fees, M 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 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 0 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. LU W D 2698521.7/iManageMS 023110-000213-14-IMThl/he -8- 0 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 descri bed in Section 5.6. 1, below. 1.53 The term "Maximum Fee Sharing Amount" shalt 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 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 term "Operating Period" shall mean the period commencing upon the Operation Period Commencement Date and ending on the twentieth (2011) anniversary thereof. 1.62 The term "Operation Period Commencement Date" shall mean and refer to the date on which the Required Operationsareestablished. 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." 269$521,7AMwmSeDW 028110-000213.14-12MIAae -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 (fl) 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 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 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. 1.73 The term "Transfer" shall mean with respect to any property, right or obligation 0 any of the following, whether by operation of law or otherwise, whether voluntary or involuntary, and whether direct or indirect: (i) any assignment, conveyance, grant, LU Ix 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 UL other encumbrance); (H) 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 Interest(s); (iii) any transaction described in "(ii)" of this M Section affecting any Equity Interest(s) or any other interest in such property, right or obligation F- 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 .W 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 0 not technically the transteror. A "Transfer" shall not, however, include any of the following rn (provided that the other Party to this Agreement has received notice of such occurrence) relating Z 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 0 State real estate transfer tax; (ii) A conveyance to member(s) of the immediate family(ies) of the 2698521,7AManageDNIS 028110-000213-14-12MMIU, _10— 0 :D I N I I I I !Mlll ITO re 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. 2.1.1 Term without Enhanced Project Election. Subject to Section 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 Effective Date, unless this agreement is terminated, modified, or extended by circumstances set forth in this Agreement or by mutual written consen) of the Parties. 2.1.2 Term with Enhanced Project Election. Subject to Section Developer makes the election authorized by Section 6.1 within the time requiredb Section 6. 1, I y 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, ified- or extended bvA circumstances set forth in this Agreement or bVA mutual written conserit of the Parties. Provisions Survivina Expiration of Term. The provisions, rights, and obligations 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 provisions, rights, and obligations set forth in, Article 8 shall remain effective and binding on 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 and Industrial Realty Group, LLC, dated an or about December 4, 2003, The provisions, rights, and obligations set forth in Section 13.2 shall remain effective and binding on the City and Developer (and/or 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 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. 3.1 Applicable Reg-41at ions-, Vested lZiaht to Devrelom Other than as expressly set forth herein, during the Term, the terrns; 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 Regulations. In connection therewith, subject to the terms and conditions of this Agreement, 26985213AManageM 028 i 10-0002/3-14-12MTKIAac RW9309114 0.1 LVA 1:4 LVA COMM IIMNTGTOIYAVFi i i01 I. 0 0 I N I 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; (d) 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 (id) 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 Map�. 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 Califomia 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_ Perrnitg. Upon satisfactory completion by 11 •r of all required preliminary actions and payment of appropriate City Fees and Charges, Fee Sharin —Amount Citp shall Aroceed to Locrocess and check all ?pplications 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 66 410) of Title 7 of the California Government Code), and other applicable provisions of law, as the same may be amended from tirne to time. is Other Governmental Permits. 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 -governmental agencies lwirrb i "i1iol4trirei—svch with City's approval and which are consistent with applicable regulatory requirements. City does will be granted. 3.5 Subs ent General Plan Amendments and Zone Chang�s. 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 2698521.7/iMmWOM5 0281 i0-0002/3-14-12TEWIn -12- RWO] 0.191:4 Oka VA 1:1 TA Lem I 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 qf Camarillo (1984) 37 * i - -•W. - - W 11 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 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 time as Developer deems appropriate within the exercise of Developer's sole subjective business 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 ir�tent 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 r of any benefit to Developer under Section 4.1, Section 4.3, Section 6J, 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 Au�bqrity. 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 Regulations. City ordinances, resolutions, regulations, and official policies adopted or approved after the Effective Date pursuant to 1,1v%9 A �t6�4.s�q not conflict with the Existing Land Use Vegulations shall w 4iA�- - apply to and govern development 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 ViManagol)MS 028110.040213-14-128'rMi/lae -13- 33.2 Overridine State and Federal Laws and Regulations. 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 (ii) 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 Health 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 buildin:9 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 Larize Fortnat Retail Development Parkine, Easement. During the Term, Developer may request in writing that City enter into negotiations for the provision, at no easement and/or license ag=n=t to accommodate up to twenty (20) parking spaces on no more than forty five one hundredths (0.45) acres of I-troperty adjacent to the Property and owned by City. The Parties shall negotiate in good faith to 2698521.7/iManageDMS 028110.0002/3-14.I VJTM/lac -14- determine the initial location and other terms and conditions for the provision of the casement 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 casement 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 Si�mature 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 CitN ' , Infrastructure briprovenients. 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 Office Svacc on, Developer Leased Prooeny. 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. 4. FEES., CONDITIONS. PUBLIC BENEFITS. AND AUDIT 1UG1 ITS. 4.1. jernimrary 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 (50%) of said City Fees and Charges. The procedures set forth in this Section 4.1 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 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 Charges. 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 2698521.7/iAuagcDMS 028110-0002/3-14-12IAae -15- 1M impose, on new aeve MUM, —1 ryyr-FTMUM• 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 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 U, 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. UUMIMM22M 4.4 Acco nting and Review. 4.4.1 Main(enance 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 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 Amount 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 aLid Expenses, 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 -Waiver By Citv. 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/iManageDMS 028110-000213-14-124MInao -16- RZKOW 91:4 ON M 1:1 M ISM I 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. UUMOMMEM 4.4.5 Survival of Audit RiQhts, 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 Costs under Section 8 shall continue until three (3) years after the issuance of a Certificate of Occupancy for the Fire Station. 5.1 Commencement of Imorovements and ComOction. In accordance with Section 3.6.- Develqcer shill cor 111, mce and comylete or cause i;, 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 Remainina Commercial Devclooment Retailers. All Larg* Format Retail Development and Remaining Commercial Development shall be, operated under one of the retail brand names set forth in Exhibit 11" or such other retail brand name approved by City, in its sole and absolute discretion. MMERZIMMM 5.4 City RiO112jrispect. Officers, employees, agents and representatives of City 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 unde•r Iiii 411"IMA W W9.1 0211eli W illi 0-i N10111- ,MC*7 W33M= 269852 LIAMannSeM 028110-0002/3-14-12JJTWao -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 coristruction of the Base Project and/or the Enhanced Project to determine that the quality of the improvements and all other requirements of the work of construction of the Base Project and/or the Enhanced Project are being performed in a manner satisfactory to Developer. 5.5 Developer Attendance at City Meetings. 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($) 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 Covenant. Developer for itself, its successors and assigns, covenants and agrees that: 5.6.1 ' General Maintenance of Prop,��tt , The areas of the Property that are subject to public view (including all improvements and the existing and future improvements, 0 1 * IWI-v5p�2 MWL repair and a neat, 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 cow Tre-Fee ard-dih-zvttiv Dursue to cure the Maintenance Deficiency within thirtv (30) calendar um 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 M aintenance 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 has been applied to the Improvements and that is visible from any public right-of-way adjacent or contiguous to the Property shall be removed by Developer by either painting over the evidence of such vandalism with a paint that has been color -matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate, If any such graffiti is not removed within seventy two (72) hours following the time of written notice from City to Developer of the discovery of the graffiti, City shall have the right to enter the Property, as necessary, and remove the graffiti, without further notice to Developer. Any sum actually expended by City for the abatement of the graffiti, as authorized by this Section, shall 2698521.7/NanageDMS 028110-0002/344-121MIllso become the debt of Developer. If the amount of the debt is not paid by Developer within thirty (3 )0) 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 er 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, aintenance 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 Tr, P"J, I "Ww"Wig�l al Ernict ind/or the Enhiiiiiiiiiiii" W146AIM 1 - r - - - - - - - - - - Legal Costs) incurred in providing such subordination. Ii �1 1111 1111101 � � 111111111 FdWff-�� loll 111 01 aua. r� 6.1 Developer Election To Develon Enhanced 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 -iotice of such election in writing to the City, 6.2 A Lpolicability of Base Proil 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 Operatinp 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 6.3, which consists of the fbllowin.J terms and conditions: 6.3.1 Conduct of Reguired Operations, 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 al 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 Payment. Subject to Developer's continued compliance •.0 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 (5 Grant Amount, provided, however, that City shall. not be required to pay the Grant Amount for 2 LU LU 0 2698521.7AMl W- 0281110-000213-14-121MA/laa -19- 0 (I any calendar year DI' which Sales Tax Revenues do not equal a minimum of Two Million Five Hundred Thousand Dollars ($2,500,000). 63.3 Certification,. Within forty-five (45) days following the end of each 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 Proverty 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. 1 6.3.6 No Conveyance to Tax Exempt Entity. 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 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 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. 6.3.7 Quality of InivroverneriLs .. 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 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 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 2698521,7/iManageM 0281 W000213-14-12MMAac -20- I under one of the retail brand names set forth in Exhibit "H" or such other retail brand name approved by City, in its sole and absolute discretion. 6.4 Covenants RunninR with the ),,and. 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 Oblipation-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 ill 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 Property. The foregoing covenants shall run with the land and shall remain ill effect during the Extexded Terrf,,. 7.2 Forrn of Non-discrimination and Non-segreeation Clauses. Developer covenants •.g; for itself, its successors, its assigns, and all persons claiming under or through them to the Property 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 In deeds. "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 orn, 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 of tenants, lessees, sub -tenants, or wb-lessces 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 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 ]eased not 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 vecupancy, of tenants, lessees, sub -lessees, or sub -tenants in the premises herein leased." 2698521-71iMmageDMS 0231 10-OW213-14-IMTkillac -21- 7.2.3 In contracts. ]'here 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. 8. FIRE STATION DEDICATION AND DEVELOPMENT. 8.1 Election 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. 1Jpon 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 commence design and other predevelopment activities, and to diligently proceed to the completion of �onstruction 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 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. 6 8.2 Desian and Construction Costs. Developer shall bear all costs, fees, burdens, and X charges associated with the design, permitting, construction and delivery of the Fire Station in a 0 manner that conforms to the specifications furnished by City pursuant to Section 8. 1. City shall W waive all City Fees and Charges in connection with the development and construction of tile Fite X 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 U_ 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 Developer's Rental of Fire Station to City. Upon issuance of a Certificate of Z 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 CL and requirements to be included in the Fire Station Lease have been included in this Agreement, 0 and any additional matters included by mutual consent in the Fire Station Lease shall be fully 0 0 consistent with the terms set forth in this Agreement. 8.5 Conv9yance 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 LU rent over a period of twenty (20) years, the Fire Station Lease shall terminate. Upon the 2 Cr W 0 ) 2698521.7/Nanage!MS cr 029110-0002/3-14-12/M.1/fae -22- 0 ( I W I I termination I I I iI 'J - Station Site and all improvements and fixtures thereon to City, and the Fire Station Lease shall be terminated with such termination. 9.1 Notice and Opportunity 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") 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 if the DefaultiLg. Partk- ,L�, failed to takc, 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 Pa4O does each xf the following-, then the 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; promptly commences to cure the default within the thirty (30) day period; (w) 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 (15) days (or such lesser time as may be specifically provided in this Agreement) after the date of such notice. 9.2 Default RemedSubject to Section 9.3, in the event of a default, the Non- Defaultin . Partye- �ts wrtion, mau institute legal action to cure correct or rcmed�, such default - enjoin any threatened or attempted violation, enforce the terms of this Agreement by specific fir- rfbrmance, or pursue any other legal or equitable remedy. Furthermore, City, in addition to or -?, -g� in this Sectio- 9:2: in the . c_ar alter-Fative to exeg–risi-cizi tFe rege ieq set fri I 11W=50011111 (411111111, W.MOd"116 HUM11 pursuant to the Development Agre—nit Statutr .. ... ..... ch event the matter shall be scheduled tor consideration and review by the City Council in the manner set forth in the Development Agreement Statute. 9.3 Developer's Exc - lusive 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 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 2698521-7/iManspeDMS 028110-0002/3-1442M Mao -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 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 judl remedies. Notwithstanding the foregoing, the Parties exknowledge and agree that Developer may seek specific perforrnance of City's monetary *bligations under this Agreement, and that such an action for specific performance shall not be construed as at) action for damages. 9.4 Force Maicure. The obligations by any Party hercunder 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 ,fyi* +f 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 Q.�e�hem��nabilitj,, to obtain necessar, ermits or a rovals from o ther overnmental 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 re�q�uired icursuant to this Agreement shall not constitute an event of farce ma�eure� extendin� the time for City's performance hereunder. If written notice of such delay or impossibility 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. 10.1 TiminQ 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 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. M2 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 tesignee finds and determines that Developer has not complied with any of the terms or 2698521.7/1 ManageDMS 0281 io-oo®2l3• ] a -12/M, Mot -24- 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 CLire of the default. The costs incurred by City in connection with the Annual Review process shall be paid by Developer. 10.3 Certificate of Compliance. 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. 11. MORTGAGEE RIGHTS. 11.1 Encumbrances on the Property. 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 Proj ect. 11.2 Mo lagee Protection. This Agreement shall be superior and senior to the lien 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 3,1-Y 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. 0 X 11.3 Mortga cc Not Oblip-ated. 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 W 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 5 terms of this Agreement and (ii) to the extent that any covenant to be performed by Developer is U_ 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. F- 11.4 Notice of Default to Mortgagee.: RiRht of Mortp-apee to Cure. Each Mortgagee 0 shall, upon written request to City, be entitled to receive written notice from City of the results of z 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 0- default within fifteen (15) days after receipt of such notice (for monetary defaults), within thirty 0 (3 )0) days after receipt of such notice (for nrnetary defaults) or, if such default can only be remedied or cured by such Mortgagee upon obtaining possession of the Property, such Mortgagee shall have the right to seek to obtain possession with dgence 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 2698520hmanageDMS 028110-0002t3-14-121MIAae -25- (31F) aay periou-, pro 0 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 AWO. 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 perfon-nance of the assigned obligations of Developer. In determining whether to grant consent to an assignment tinder this Section, factors that may be considered by the City include, but are not limited to, the extent of *&-2, lave-dic master developer of the Property hold substantially all of the rights under the Agreement, the assignee's demonstrated experience in developing and/or operating projects of like kind and scale as the Base Project (or the Enhanced Project, if Developer makes the election authori7ed 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 *,f T7.mv&wiA* will develovL�arge Format Retail Develo��ffient 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-ferce(s) shall not receive the benefits of set forth in Section 4.1 and Section 6.3. 12,2 Release Upon Transfer of' Amement. 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 I 14, -*Opirixtwic f Nriwri, IiV,, �t," 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 Subiect to 'rerins of Agreement. 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 Uoon Transfer of Interest in Leased Proppi-tv. 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 .............. 269852t.7/iManageM 029 t 10-0002/3-14- 1VTfWat -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. 13J.] Base Proiect Insurance, Developer shall procure and maintain on the Developer Leased Property the insurance required under that certain Ground Lease dated L December 4, 2003 between City and Industrial Realty Group, LLC, a Nevada limited liability NEW26-M L" IM M 16,1111111", MW - WO M. 0 'roject, men Jrvmupt ijl- �Mq-rltalnu I QO On UK; r-1-01) 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 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 railure to Maintain [nsurance. 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 csomnectiom with such default. Additiogurchase any such reauired insurance 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. 1321 General Indemnitv. 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, employees pursuant to t -hjjt-e=tuAing-anyy 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 that is subject to the indemnification provisions of this Section 13.2. 13.2.2 Prevailine Wauc Indernnitv 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 7hManPg,0)MS 028110-000213444247Waa -27- representing, and has not ♦ affirmatively represented, to the Developer • any contractor(s) of Developer for any construction on or development on or adjacent to the Property, in writing orotherwise, in a call for bids or any agreement or otherwise, that any work 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) • 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 • Project X416-1,0113 13.3 Indemnification Procedures. Wherever this Agreement requires any indemnitor to indemnify any indemnitee: WIM 1.3.3.2 Coot3eration. City shall reasonably cooperate with Develope(s defense, Costs) of such cooperation, 13.3.3 Settlement. Any settlement shall require the prior written consent of both City and Developer, which consent shall not be unreasonably withheld. 13.3.4 Citv Cooperation. City shall reasonably cooperate with Developer's i :rl nw&CS7�` { (including Legal Costs) oi 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 indemnificat',ion. 14. THIRD PARTY LEGAL CHALLENGE, 2608521.7hMnnagaDMS 0281 104002/3-14-12/MlAac -29- I 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. lrb�LVAI clow-magm 15.1 Compliance with AUlicable Law. Developer shall carry out the construction of znd 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. I 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 of Aparcement. 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 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 Successors in Interest. Subject to Section 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: (i) is for the benefit of and is a burden upon every portion of the Property; (fl) runs 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. 15.7 City Manager IrriDlementation. 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 UJ increase the monetary obligations of City by more than Seventy -Five Thousand Dollars M ($75,000) in the aggregate, provided, however, that in the event the Specific Plan allows certain pC UJ 2698521 WiManagcDMS 0281 10-00OV3-14-121MVIac -30- 0 0 g-.pprovals by the Community Development Director, his designee or the Community Development Department, the procedures in the Specific Plan shall be followed. All other .?,ctions 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 cubmission to the City Council of any matter within the City Manager's authority under this �-ection 15.6, in the City Manager's sole and absolute discretion, to obtain the City Council's cxpress and specific authorization on such matter. The specific intent of this Section 15.6 is to �iuthorize certain actions on behalf of City by the City Manager, but not to require that such �;ctions 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 io comply with all applicable provisions of the Political Reform Act. 15.9 Survival of AgLeernent. 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 'non -appealable ration of all a. . icable statutory limitations periods and all terms I and conditions of this Agreement relating to dispute resolution arid limitations on damages or remedies shall survive any expiration or termination of this Agreement. 15.10 Entire Agreement- Waivers and Amendments, 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 PrinciPles, of Interpretation. No inference in favor of or against any Party shal I 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 ovem all lan�uage 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 itexcept where the context clearly requires otherwise. Every reference to any document, including this Agreement, refers to such ,iocument, 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, X IIJ M 2698521 7/iManageM cc 0281 IM002/3-14-IVJTMAae -31- 0 C ) W4101 Maki 1014 IN M 1:11 M Win I 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 Incorporation 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. 15.1.3 Section Headitvs 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. 15.1.4 Si nau lar and 'Plural. As used in this Agreement, the singular ofanyiword includes the plural. 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 I provisions of this Agreement as to which time is an element. 15.17 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other Parties to the extent necessary to implement this 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. 15.18 Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining 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. 15.19 Le `xnenses, In any Action proceeding between City and Developer, the gat L 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 Section 1033,5 or Civf1 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 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 2698521.7/iManageDMS 028110-0002/3-14-12MVIae -32- commencement of the Action, regardless of whether the Action is prosecuted to a final judgment or 4 -recision. 15.20 No 'nird Partv Beneficiaries. This Agreement and all of its terms, conditions, any successors in interest), and not for the benefit of any other individual or entity. III this Jova"on.6itiwifete Proxerto th.- not timelp enteu into and �cerform this Agreement or a substantially similar agreement with City shall have no benefit ftom, and shall not be a beneficiary of, any of the provisions of this Agreement. 15.21 Relationship of Parties. City and Developer hereby renounce the existence of ally 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 arid Developer joint venturers or partners. 15.22 Development as a Private Under "kin . 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 ally kind is fortned 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. Insoection of Books and Records. 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 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 attomey-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. 0 .10, 15.24 Estoppel Certificate. Any Party hereunder may, at any time, deliver written (n notice to any other Party requesting such Party to certify in writing that, to the best knowledge of the certifying Party, Q) this Agreement is in full force and effect and a binding obligation of the 0 Party; (ii) this Agreement has not been amended or modified either orally or in writing, or if so 0 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. 2698521.7hManagcDMS 0281 10-ODD213-14-1211TMAae -33- 15,25 AoPlicable Law-,-Yenue. This Agreement shall be • 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, 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 • the removal or change of venue to any other court. 15.26 Non-l-Jability of Cit ' v 0 ' fficers and Einolo . 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 of the Property. 15.27 Non-Liabilitv of Devclooer's Officers and Emplovees. 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 sarne shall be deemcd 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 shal I be given to the Parties at their addresses set forth below: If to City: City of Downey City Hall 11111 Brookshire Downey, CA 90241 Attn: City Manager Telephone: (562) 904-7284 Telecopy: (562) 923-6388 With a copy to: Rutan & Tucker, LLP 61.1. Anton Blvd., Suite 1400 Costa Mesa, CA 92626 Attn: Jeffrey T. Melching, Esq. Telephone: (714)641-5100 Telecopy: (714) 546-9035 2698521.7/iMmogeMS 028110-00021.1-14-IMTh-Wee -34- Zito Developer: Manarino Realty LLC Irvine, CA 926 18 Attn: Robert A. Manarino With a copy to: Allen Matkins Leck Gamble Mallory & Natsis LLP Three Ernbarcadero Center, 12t" Floor San Francisco, CA 94111-4074 Attn: Sonia Ransom, Esq. Telephone: (415) 837-1515 Telecopy: (415) 837-1516 15.29 - Representation as to Ownership. Developer represents and warrants that Developer is the owner in fee of the Developer Owned Property. 15.30 Representation as to Ownership. City represents and warrants that City is the owner in fee of the Developer Leased Property. 15.31 Authoritv to Execute. Developer warrants and represents that (i)it is duly organized and existing, (d) it is du ly 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 Execute. City warrants and represents that (i) it is duly organized and existing, (fi) it is duly authorized to execute and deliver this Agreement, (iii) by so executing this Agreement, City is formally bound to the provisions of this Agreement, (iv) City's entering of any other agreement to which City is bound, and (v) there is no existing or threatened or performing its obligations set forth in this Agreement. 15.33 Execution of Aoreement. 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. 1.5.34 Exhibits, This Agreement contains nine (9) exhibits, attached hereto and made t� i.art 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 2698521.7hMatiagoDNIS 029110-00021.1-14-12/rMillae sm W4101 IOU 91: A Oki T, 1: 4 LTA IOM I E Depiction of Property F Fire Station Site Plan G [RESERVED] H Pre -Approved Retail Development Brand Namek F. Pre -Approved Hotel Development -Brand Names 2698521,71iMmageM 028110.00076-14-121MIAac -36- IN WITNESS WHEREOF, City and Developer have executed this Agreement as of the date first written above. CITY OF DOWNEY, a Charter City Mayoo C i ty C Alerk?14 Im, | APPROVED AS TO FORM: intte M. Abich Garcia tyytAttorney 02811 M00713-14-12JMMAe -37- Romwel Oki DIAM 11 MET, Lem I MTKOI W&M ki Loll FIICCP IRG DOWNEY, LLC, � " -U, M k' u'g wbj& By. PcCq LB I Downey, LLC, its M n� Member By: Name: William R. Lindsay Title: AU1110rizecI.Signatory IRG DOWNEY, LLC, RVARITC19flym By: S.L. Properties, In By: Name: S"WAArx UcAf6P, Title: 4 AA f 26985 21.7/iMunagcDMS 0281 10-00OW-14-121UM/loc -38- STATE OF CALIFORNIA )ss COUNTY OF LOS ANGELES) Notary Public On jNkofjA ZZ,ZC*-L , before me, -6<6646 L personally appeared popgomitv-4ff a ,,proved to me �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 .4; A 'IIIA i -rV r -Ir n --,n 1! 1n -V 11 k I r 6 Witness my hand and official seat. V* i,- UH ri a .j U" Z;l k V. OTM U L State of 4allfarnla that the 1-�Yegoing is true and correct. GABRIEL L. WILLEY - - - - - - Commission 1830053 z Notary Public - CaMZ ornle Z orange County May Comm, Expires Jan 9, 2013 [SEAL] #""' STATE OF CALIFORNIA ) ss COUNTY OF LOS ANGELES) (;jotaryUblic 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. am 26985213/iMmogeM 028110.0002/3-14-12/JrMhe No W, Uhl I i, I' I WWTT 1 oill WRO State of California /I County of �05 d4lq� A04/U-( On P1 / /0. Zol)efore me, " In. Til)v Data / Ne "art Name end Iltie 01 do offmf personally appeared Place Notary Seal Above W ri- I I W I� ZL r z - W -V W V,J!;. io I - I M A I -V 9 1 S, within instrument and acknowledged to me that instrument the person*, or the entity upon behalf of which the personW acted, executed the instrument. I I certify under PENALTY OF VLHJUH, Y under the laws true and correct. WITNESS hart a offi` cal. Signature 5", .1".. 'it Nom Pubc OPTIONAL 4. Though the information below is not required by law, it may prove valuable to persons rolying on the document and could prevent fraudulent removal and reattachment of this form to another document. [sjT�, .MFJjM . iT-rjF9T-7M=1 Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) 0 Signer's Name: L1 Individual tn El Corporate Officer — Title(s): 13 Partner — 0 Limited El General 0 Attorney In Fact "Nam EJ Trustee Top of thumb here (n :2 E. Guardian or Conservator F- 21 Other: Signer Is Representing: -T- 1. -- Number of Pages: Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — Uj Limited D General El Attorney in Fact • El Trustee Top of thumb here E. Guardian or Conservator E: Other. Signer Is Representing: 1 -1 I kl'gdq� 1111111,11aa 01, r IFY14MMEr 11 , IM CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Lcf--,. Ok)sNGf'C N On 11—\ jAV Z�Nt before me, otary Public _4 A Dale Here Irmrt Name Lend T@0 of Ike OCR= personally appeared co\ LN(\rJ Q.,. I arne(s) of Signet(s) G48RlEL L. �WILLEY Commission # 1830053 Notary Public - califogrila > Z orange County Z Cafnm Expires San 9. 2013 L�Zlv 114111"n. 111, , V � V. 0 V, �.0 WL"V'T who proved to me on the basis of satisfactory evidence to be the person(s) whose narne(s) Warel subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capaolty(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. Signatur ... . ............ 11111-1.1-11".... Place I I I I. N I olary Sea I I Above OPTIONALF3 SIgnal-re of C'totary P4 Though the information below is not required by law, it may prove valuable to persons relying on the document 0 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: 0 Signer's Name: Signer's Name: Z El individual D Individual 0 Corporate Officer — Title(s): 0 Corporate Officer — Title(s): 0 Partner — El Limited L3 General El Partner — El Limited Ll General 0 Attorney in Fact 0 Attorney in Fact C) Trustee Top at thumb here El Trustee Top of thumb here El Guardian or Conservator 0 Guardian or Conservator F_ El Other: 0 Other: (5 — Signer Is Representing: Signer Is Representing: Q2007 National Notary Association- 9350 Do Sato Ave., P.O. Box 2402 -Chatsworth, CA 91313-2402-www.NallonaiNotary.org Item #5907 Reorder: Call Toll -Free 1-a00.87&6827 State of California Count of LYA21-before me, M Data , personally appeared who proved to me on the basis of satisfactory evidence to be the erson(s whosk, amidsoee subscribed to th ft�hln �inmient ai d ac :-howledged e that Ze/they executed the same in is r/the &e ir authorized c acity s), and that by rlh' their. gi-tn�atur (s�t�e Instrument the ity upon behalf of which the DENISE MARIE ALVAREZ rson' or COMMISSIon * 1849047 Z on( acted, executed the instrument. Notary Public - California Los Angeles County - Comm. ExPires May 21, 2013 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct, WITNESS my Jd anc(o-ificiai se Signature: L4, --f 11 Place Notary Seal Above Signature of Notary raft OPTIONAL .......... Though the information below is not required by law, it may prove valuable to persons relying an the doe rrrerlt and cool I prevent fraudulent removal and reattachment of this form to another document. Description of Attached -Document Title or Type o"Q10:1 unrenL Document Date: Limber of Pages: Signer(s) Other Than Named �A-. Capacity(ies) Claimed by Signer(s Signer's Name: ner's Name: • Corporate Officer — Title(s): Cl Coro fiver — Title(s): • Individual C3 Individual • Partner — Cl Limited Ll General it) of thumb here 0 Partner — Fj Limited D General Top of thumb here • Attorney in Fact 0 Attorney in Fact 0 Trustee ✓ El Trustee C1 Guardian or Conservator D Guardian or Conservator 0 Other: D Other: Signer Is Representing: Signer Is Representing: C 2010 National Notary Association - Natianafttary.org - 1 -800 -US NOTARY (1-800-876-6827) hern #5907 M U610 V 13 STATE OF CALIFORNIA ) ss COUNTY OF LOS ANGELES) 1=111K, -111 On 0119 o go) before me, (1) NAXa 'person I y �M:95nmlg_ JVka appeared proved to me on the basis of satisfactory evidence) to be the personW whose name(,4 is1W subscribed to the within instrument and acknowledged to me that he/&he*w!� executed the same in hisUFAek authorized capacity(ios), and that by hisiheftwwk signatureW on the instrument the person(*) or the entity upon behalf of which the person(s�, acted, executed the instrument. I certify under PENALV OF PERJURY under the laws of the State of California that the foregoing is true and correct, Witness my hand and official sea]. STATE OF CALtl-��NIA ) ss On N, before appeared personally known to me (or proved to e person(s) whose name(s) is/are subscribed ( he/she/they executed the same in his/her/their signature(s) on the instrument the person(s) acted, executed the instrument. Witness my band and official seat. [ME, 2698521.7AManagcDM5 Mi 10-0M2/3-14-L2/JT7%fAae Notary Public me, ., personally on the basis of satisfactory evidence) to be the he within instrument and acknowledged to me that thiorized capacity(ies), and that by his/her/their or t entity upon behalf.of which the person(s) IMI F,,XHIBIT "A" j,epl,De-scription of Developer Owned PropSrt . . 1 1. . I ELI EXN "A^ LEGAL DESCRIPTION ACQUISITION PARCEL THOSE PORTIONS OF LOT 2 AND LOT 3 OF FRACTIONAL SECTION % TOWNSHIP 3 SOUTH, RANGE 12 WEST. IN THE RANCHO SANTA GERTRUDES, TOGETHER WITH A PORTION OF THE SOUTHWEST QUARTER OF SAID FRACTIONAL SECTION 10, IN THE CITY OF DOWNEY. COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AS RECORDED IN BOOK 1, PAGE 5W OF MSCELLANEOUS RECORDS, RECORDED IN THE OFFICE OF THE COUNTY RECORDEROF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE NORTHERLY LINE OF SAID LOT 2 IN THE NORTHWEST QUARTER OF FRACTIONAL SECTION 10, SAID LINE ALSO BEING THE NORTHERLY UNE OF STEWART AND GRAY ROAD, 80 FEET WIDE, DISTANT THEREON SOUTH 995714° WEST 848.61 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 QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF FRACTIONAL SECTION 10, SOUTH 0013'16' WEST 1011.24 FEET TO THETRUE POINT OF BEGINNING; THENCE SOUTH 88'48'11' WEST 1184.23 FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHEASTERLY 40.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE OF LAKEWOOD BOULEVARD, AS SHOWN ON COUNTY SURVEYORS B SERIES MAP NO. 1147, ON FILE IN THE OFFICE OF THE COUNTY ENGINEER OF SAID COUNTY; THENCE SOUTH 3141'38' WEST, ALONG SAID PARALLEL UNE, A DISTANCE OF 1437.27 FEET TO A POINT IN A UNE THAT IS PARALLEL WITH AND DISTANT EASTERLY 40.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE OF CLARK AVENUE AS SHOWN ON SAID COUNTY SURVEYORS B SERIES MAP NO. 1147; THENCE SOUTH 00°0.3'38' WEST, ALONG LAST SAID PARALLEL UNE, A DISTANCE OF 465.49 FEET; THENCE NORTH O(r EAST 856.79 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 600.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18'48'42", A DISTANCE OF 197.00 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 82.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 69'12'23, A DISTANCE OF 84.73 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 396.00 FEET; THENCE NORTHEASTERLY ALONG SND CURVE THROUGH A CENTRAL ANGLE OF 78'01'06', A DISTANCE OF 641.98 FEET; THEME NORTH 901x1'00' EAST 321.62 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 418.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 17'3905', A DISTANCE OF 126.78 FEET TO SAID UNE 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 POINT OF BEG[ NG. CONTAINING AN AREA OF $550,978 SQUARE FEET, MORE OR LESS. ALL AS SHOWN ON EMIBTT'W ATTACHED HERETO AND MADE A PART HEREOF. A x CEJ EXHIBIT "B" ',kCO iStTlON PARCEL' No cM lt6dT 0 4 W NMG i! Y u2 i��w �j I r1 1 ef, [IOSTA Del, e Py 0 P 9°48'11 W.,,,,,. 1194,23' / f OENTER T 1O t I 4d 1 d : 0.,✓/ 1 N go=.o - a-IM78' 1ma 41.99" ' AoS91 '23' 1 L- '- w 90 1 mea 70 4ii4'4042" SX P#' g R�6p0,L0° N•r— 1/4, "1r.1 4. i B kt i Elld1�A000N 4 Ad CIATEIN t uawv.cmw4m Cx ®1710 AMWMA ]b/-1 1 dd + W -17®i AX Y'Nw',wumui I uu�l'4Y�U ��' '� si'�,i�i Baa v'11�+.��ww lull'utl YLell'uWilundn1'niu� 's�..wnui.�oe ruuwu m,a�„ a auuui su ro+ �u°„ ..0 uwuu uu wmuu.. uuer WlYilulid4WdYYWl1Y111WWIWYiYAdu YI� a a EXHIBIT "B" 'INDUMIAL REALTY GROUP - GROUND LASE" UNE TAB �-4 SMWART AND ?M"4 w UNE owmr.'1�01STANCE Ll S 89*51*Oe W 238-31' /i4 -LY UNEj LOT 2 all .4-2I I I ,691 11 E!, A 1'-400' LOT Y YNE o WASHOURN CIEN SECM o r—rug 4_W CT. to 0 1Z, % ) i; R-2b2OO L-217,00' L-230.23' Sly 114 N6 N S.W. SEC. 'a 0. MOONit AM% Me. E• UM 0 slmxq OL. wCA 91719 MUM in, 3"A ml FM Maw, ollm" .. . .. ........... . ........ . ........... . . .. ... ...... .. .. . .... .. . ..... ..... ... .... Moll'-wam Legal DescriPtion of Develover Leased Propsril, EN •-r111 11, wk'i�ll il iiiiiiian 1 11•• - ••r A EXHMIT"A" LEGAL INDUSTRIAL TY GROUP - GROUND LEM THAT PORTION OF LOT 21N THE NORTHWEST QUARTER OF FRACTIONAL SECTION 10, TOWNSHIP 3 SOUTH, RANGE 12 WEST, IN THE RANCHO SANTA GERTRUDES, TOGETHER W17H A PORTION OF THE SOUTHWEST QUARTER OF SAID FRACTIONAL SECTION 10, IN THE CITY OF WNEY, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA AS RECORDED IN BOOK 1, PAGE 502 OF MISCELLANEOUS RECORDS, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE NORTHERLY LINE OF SAID LOT 2 IN THE NORTHWEST QUARTER OF FRACTIONAL SECTION 10, SAID LINE ALSO BEING THE NORTHERLY UNE OF STEWART AND GRAY ROAD, 90 FEET WIDE, DISTANT THEREON SOUTH 14 WEST 849,51 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 QUARTER OF THE NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF FRACTIONAL SECTION 10, SOUTH 00'13'19° WEST 1100-59 FEET TO THE TRUE POINT OF BEGMING; THENCE AT RIGHT ANGLES TO THE EASTERLY LINE OF SAID LOT 2, SAID EASTERLY UNE ALSO BEING THE CENTERUNE OF BELLFLOWER BOULEVARD, NORTH 86°8723" EAST 913.20 FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT WESTERLY 40,40 FEET, MEASURED AT RIGHT ANGLES, FROM SAID EASTERLY LINE OF LOT 2; THENCE SOUTH 001=r EAST, ALONG SAID PARALLEL LINE, A DISTANCE OF VZ54 FEET TO THE INTERSECTION OF SAID PARAUXL LINE, WITH A LINE THAT IS PARALLEL WITH AND DISTANT WESTERLY 40.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE EASTERLY LINE OF SND SOUTHWEST QUARTER OF SAID FRACTIONAL SECTION 10; THENCE souTH oawi r EAST, ALONG LAST SAID PARALLEL LINE. A DISTANCE OF 1225.83 FEET TO A UNE THAT IS PARALLEL WITH AND DISTANT NORTHERLY 09.00 FEET, MEASURED AT RIGHT ANGLES, FROM THE SOUTHERLY LINE OF SAID NORTHEAST QUARTER OF THE SOUTHWEST QUARTER OF FRACTIONAL SECTION 10; THENCE SOUTH MI*W WEST, ALONG LAST SAtO PARA11JEL LINE, A DISTANCE OF ZX61 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 252,00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE 48'21'31', A DISTANCE OF 217.09 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 418.00 FEET; THENCE NORTHWESTERLY ALOW. SAID CURVE THROUGH A CENTRAL ANGLE OF 31 "33'30^, A DISTANCE OF 230.23 FEET TO SAID UNE 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 00°1318" EAST, ALONG SAID LINE, A DISTANCE OF 1234.83 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING AN AREA OF 887,497 SQUARE FEET. MORE OR LESS. ALL AS SHOWN ON E)(HIBIT'B"ATTACHED HERETO AND MADE A PART HEREOF. A EXHIBIT "B" 'INDUSTRIAL REALTY GROUP — GROUND LEASE" N LC 0 if R, 2 LIN STEWART AND ",Y,§qAD E TABLE 4 W MMING I ERSTANCE --fi46 §.I' N '51-0 t3a IF No MWIN1 )—1 UNE IF S 89 V W 236.81 N -Ly UN LOT 2 4�1 hgtl W 89'52'23" E anN 1*-4CV 'LY UNE CMTER—' rAT 2 RM SECT, 10 r—Twy u7 SECT tO Al R-Z52.OQ L -2V, slow— M23' IF S.W. C Sly U N.C. S o. E FAUMN A AGO=%M. INC. E 0 MAU ft I Wq 04 11 .1 Peviction. o.f. Develover Leased Proj)!jLtj EIR "ACQUISITION PARCEL" Hf- COR LOT 2 ,--C STEWART MO w NOTLy ?E LOT i"-4W IVWA 4, S 891'411* W 11041.23'.-- RD. &A T 4b' �� L1 R-- 239 A- hg'12'73* fl-82.00* L-84.73 .18-48*42* S.W. NU 1./4! IIWNM k AG"CIATOO. MC. Elt I IL CAN&VA 3m 9) SUM ocom ft CA. WIG SWANk EXHIBIT "E" M, el�rt "oil .1 i 4 3 Nam 11 1 li 61um8 f _ PARCEL 1 CST 1 - LOT 2j LOT 3 = 65,913 SF 411,342.84 SF l 513,102.72 SF 471,045.20 SF 1.5 7 AC 9.44 AC 11.78 AC 10.81 AC flT' 15 I LOT 16 — PARCEL 2 i 3.97 SF 55,064.73 SF _ 5,221.67 SF 4.14.14 A AC L1.26 AC _ L-A , 0.12 AC now °a L®T f 4 i 8 t3a LOT 8 _ ! Cam ,0.96 AC /,/ 93,732.79 SF " '! lroT10 4 2.15 AC �.,. �..� .101,492.91 SF.' = LOTS '2.34 AC `� LOT 9 t4T6 1flT4 = PARCEL 3 J ti 3 52,668 SF' 161,695 SF -100,776 5 LOT13 74,459.15F , 4,589.15 SF 106,492.91 5F - 1.72 AC : 1.21 AC 1 3.71 AC .31 AC 0,10 AC 2.44 AC - L_ L LOT 7 89,454.73 SF — PARCEL 4 2.05 AC 1 351,259 SF G3i C SPSTE�r°E p31V 8.64 AC LOT12 LOT 11 ` + Q 261,32.05 SF236,613.11 SF 6.00 AC 5.43 AC < LEGEND: — TPM. 71543 i!mom a"6jaw ®� 4 1 1 i 1 C 4 1 1 $ me M 1 1 I T1 I LUNA men mq MAPffrPLACE g0rol EXHIBIT "F" fteviction of Fire Station Site 'SM- PLAN BLOCK PROGP.AM M frac "ora cluly of Downey Mmh-wrrh*r 2P. 2011 I -ice 0 11 X 17 ER e I � I I I III I IIIII I r RUN 111FINTIM T EXHIBIT "Coto FRESERVEDI w . eel -Vol Pre:.Aoroved Retail Devt Brand Names SPORTING GOODS 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 W IRELESS 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 FACTORY ROLL IT SUSHI SBARRO ITALIAN EATERY STARBUCKS SUBWAY SWEET FACTORY TOGO'S TUTTI FRUTTI FROZEN YOGURT YOGURTLAND PINKBERRY 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 MEL'S DRIVE -1N 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 SOU PLANTATION T.G.I. FRIDAYS WOOD RANCH YARDHOUSE FORMAL DINING BOA STEAK HOUSE CAFE R&D FLEMINGS HOUSTONS KINGS SEAFOOD LE GRAND ORANGE MORTONS ROY'S SUSHIROKU TONY ROMAS TORO'S RUTH CHRIS STEAKHOUSE CASUAL DINING APPLEBEE'S FOOTWEAR BENIHANA ADIDAS BLACK ANGUS AEROSOLES BOSTON'S GOURMET PIZZA BASS BUBBA GUMP SHRIMP CO. RESTAURANTS BENNETTON 47 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 BCBGI 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 DOT'S DRESS BARN ECKO UNLTD. 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 Oki ';li !ka 7 L IE + L A D T QE L CONRAD HOTELS & RESORTS i - FULL SERVICE HILTON HOTELS & RESORTS DOUBLETREE BY HILTON EMBASSY SUITES F U ED SERVICE HILTON GARDEN INN HAMPTONINN HAMPTON INN & SUITES rr. r - r• SHERATON WESTINHOTELS FOUR POINTS BY SHERATON LE M�RIDIEN COLLECTIONST. REGIS THE LUXURY 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 -r • EXHIBIT "I" 2698521JAManagrOMS 028110.000212-24-12J1TMljlm "� " w , . QUICKSILVER STEIN MART SUO T.J. MAXX THE AVE TILLY'S TOMMY HILFIGER TORRID TREND THEORY TWO LIPS U.S. POLO ASSN. ULTA UNDER ARMOUR CHILDREN'S 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 PACIFIC DENTAL PARTY AMERICA SAMSONITE COMPANY STORE SMART & FINAL SPROCKETS KIDS SPROUTS MARKET SUNGLASS HUT TARGET TIME FACTORY WATCH OUTLET M, TRADER JOE'S TRUE VALUE WELLS FARGO WHOLEFOODS WILSONS LEATHER W101 WAIN am I NOMIN KIM HE IN (Above Space for Recorder's Use Only) FIRST AMENDMENT TO TIE RRA LUNA DEVELOPMENT AGREEMENT by and between CITY OF DOWNEYand 11CC11 llZ(J DOWN F Y. I .1,(% a Delawarc limited liability compaliv, as to an undivided 90% interest, mid W(s DOWNEY, LLC. a California lini itcd liability _coni pimv. as to an undivided 10% interest This First Amendment to Tierra Luna Development Agreement ("First Amendment") is made and entered into effi�ctive as of �Xp 2017, by and between the CITY OF DOWNEY, a California charter city, (Tiiy"), PCCP MG DOWNEY, LI.C. a Delaware limited Fabilit 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 Proper -11 with either the Base Project or the Enhanced Project; I 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 terin 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 E. Whereas, the Parties also wish to amend certain sections of the Development 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: I . DEVELOPMENT OF THE PROPERTY 1.1. I)cyclooment oftlic Base Proiect. 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. 1),eveloper Iilection to I)evcloi) l"nilanced Project. 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 Election. 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. Larve I-orniat asid Remainini,, Commercial Develomnent 1�clailersl, Section 5.2 of the Development Agreement shall be amended and replaced as follows: Large Format and Reinainina Commercial Development Retailers. All Large Forma! 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 name in the Developer's sole discretion, 3.1. I)evelomnent ofthe Fire Station Site. Article 8 of the Development Agreeme Property. The City no longer desires to have a Fire Station built on the Property. Article 8 of t I 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. 4.1. Notices. Section 15.28 of the Development Agreement shall be amended to repla)"T the Developer and its counsel with the following: I I I' to DevC1011q: PCCP I Downey, LLC 555 California Street, Suite 3450 San Francisco, California 94104 Attn: Aaron Giovara Telephone: (415) 732-7645 Telecopy: (4l 5) 732-7547 Will) a Cony to: Allen Matkins Leek 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 or -if a (slag 0 [01.ra vid I I I &NI I Moore !- ii 0i firwill1wMMAJ is 4.3 Counten)arts: This First Amendment may be executed in any n mbe (I U, r counterparts, each of which shall be deemed an original, but all of which, taken together, sh constitute one and the same instrument. I Ift 171TAESS'll'AEREOF, the Parties have execuTe-d-ffi—sHirst Amendment as of the day and year first above written. Approved as to Form: Pette M. Abich Garcia v .ityy Attorney CITY OF DOWNEY, a Municipal -eorpot:Wion of the State of California Name: Fernando Vasquez Its: Mayor FCCP IRG DOWNEY, LLC, ------- .... By: PCCP LB IRG Downey, LLC, its Managing Member By: Name: IRG DOWNEY, LLC, E wmaiwi a 028110-0002/8-14-1 7/hsr/jim —I- By: S.L. N-opertics, Inc. By: T�-4 Name:-r)U-14k Its. Q�' - 1�yxl e L L tLQ 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 AK&EL66 On before me, 9&ea&XII11 6-4�ft � Alakwy 14 Date Here Insert Name and Title of the Officer personally appeared Name(s) of Signer(s) SM64 fe ww. mm'.1'ej 1M z 1,16ii-AMMI'M 11111 MINNOW M I A W. -Mwavlwaw z or the entity upon behalf of which the person(g) 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 WITNESS my ha Yd official seal. Commission # 2112736 1 f Notary Public - California z Los Angeles County Signature Comm. Egires Jun 19, 201 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: N r of Pages: Ij Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: El Corporate Officer — Title(s): T D Partner — 11 Limited EEI General El Individual D Attorney i ct El Trustee Ll Guaroa or Conservator El Other: Signer Is RepreS90<119: Signer's Name: 0 Corporate Officer — Title(s): EJ Partner — 0 Limited 11 General 1-1 Individual El Attorney in Fact F1 Trustee El Guardian or Conservator 11 Other: Signer Is Representing: 02016 National Notary Association - www.NationaiNotary.org - 1 -800 -US NOTARY (1-800-876-6827) Item #5907 'q-1 111111-7,NIM-1 I 1e;11J.1 RA -IIIJ, 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 validity of that document. State of California County of On before fj th Here sert Name and Title of th •Mcer personally appeared A.. Hmara Marneo of Signer(l) who proved to me on the basis of satisfactory evidence to be the person whose na(110W WaK6 I cubscribed to the within instrument and acknowledged to me that he/�04e/ttO executed the same in executed the instrument. WIN "MR10 is true and correct. WITNESS my hand anA, official seal., �Z_, Signature Signa sof V67of Notary Public Place Notary Seal Above OPTIONAL Thiu.,gih this sactitti is *irtiziial, etm,7S, this hiftri-i6aft;i caii keter alteratiiz #f the-jetcieme?1ti, fraudulent reattachment of this form to an unintended 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 • Partner — El Limited U General • Individual [I Aftorney in Fact • Trustee 0 Guardian or Conservator El Other: Signer Is Representing: Signer's Name: -- 0 Corporate Officer El Partner — El Limited El General • Individual 0 Attorney in Fact • Trustee 0 Guardian or Conservator El Other: Signer Is Representing: it 1`1171111 1! i I 111WIM1517 SIMM1107=111 MITSUI= first above written. Yvette M. Abich Garcia City Attorney 028110-000218-) 4 -17/hsr/j tin CITY OF DOWNEY, of 0flif*ryi.? "DEVELOPER" PCCP IRG DOWNEY, LLC, a Delaware limited liability company I'My: PCCP LB IRG Downey, LLC, its Managing Me 'inber By: Name:--AmonA-Qovara Its: Authudzed Sigmat0l] [RG DOWNEY, LLC, q-C,aUfpr1f1L?--l*- ted lia'filitv cgi f ftyjffr� I 3y., _ Name. Its: - ------ - — ----- ---- - - ------ . .... A notary public or other officer completing this I cerificate verifies*ztly the ifeiOj of the in,�Iividua'. who signed the document to which this certificate i attached, and not the truthfulness, accuracy, or Ivalid1tv of that document. 3 ".1 "Q 411 On August 15, 2017 . before me, Retiav Iretie Cardoiia Nolarqqg��-Notary Public personally appeared John A. Mase who proved to me on the basis of satisfactory 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. Signature Ill if DR*V I lip I A W All AM VATA @* I Dion 114 DUKU A, 1J DI PAVI V. City of Downey Attn: City Clerk 11111 Brookshire Avenue Downey, CA 90241 SECOND AMENDMENT TOTIERRA LUNA DEVELOPMENT AGREEMENT by an amonp, CITY OF DOWNEY,- PCCP IRG DOWNEY. LLC. IRG DOWNEY. LI., . aild 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 Delaware 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 Buyer are collectively referred to herein as the "Parties." FRXO- 04�-1 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, 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 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 Exhibit "C" 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 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. Qi� 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 copy -t 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 Countemarts: 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 Califorrifiz By: e: Its; PCCP IRG DOWNEY, LLC, r Ar im k. wrl- its Maiiaging Member BY: Its: i /V "DEVELOPER" IRG DOWNEY, LLC, a California limited liability company By: Name: Its: 12908308.2 By: IRG III, LLC By: S.L. Properties, Inc. otary public or other officer completing this certificate verifies only the identity of the individu--al -w--ho-sig I ne 11 d document to which this certificate is atlaclied, and not the truthfiflness, acciiricy, or vilidily of that document. State of California County of C On....�Awcj 12, 20ft before me, rj r a Notary Public, personally appeared S, -1C , who proved to me on the basis of satisfactory evidence to be the personf.*) whose nameW is/are subscribed to the within instrument and acknowledged to me that he/shg1they executed the same in his/hCrAteff Wt /ko 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. RECINOS Notary Public - California Los Angeles County Commission 0 2197743 &V COMM txplms Jun 10, 2021 Signature 12908308.2 5 2.4 Countemarts: 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 OF DOWNEY, Rv:_____ Its - its Managing Member By: IRG III, LLC ,,AT&, By: IS, 1-4. firoperties, InP 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. On%&fCVI jLA,'10Iq before me, a Notary Public, personally appeared who proved to ine on the basis of satisfactory evidence to be the person(4 whose nameW islaV6 subscribed to the within instrument and acknowledged to me that he/s)(e/d?dy executed the same in his/her/tWir ,?.uAjAjjj inaciAttipA I a -rd *i"e�r sign=11A, gn M* t the inerso-f-61 or un1 er e Taws of Tne State of C certity un I foregoing paragraph is true and correct. VILM I ILI If 1 1W�Ip REN"Ifinq r6RDONA MAROUL? Wxy rut)ItC - CallrWnpa Los Anqefcs oiRnly Ir MCOMMI, Expjre� yFZ9,1.) Signature 12908308.2 US VI DOWNEY, LLC, rLy: US VI CP, LP, a Delaware limited partnership, its Sole Member FPO " y: BVK US VI CA GP, LLc—' a Delaware limited liabiliA By:_. Name: .18V Title: f--,�,juqr Majitk `2v 1 VIC, C4 -,o V - By: Name: Title: -59mior Mart--%#' f V)co 4 )DI 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, UCUNICY, or valklity of that document. Ive— j State of4' County of Alew y r k IF the entity upon behalf of which the person(s) acted, executed the instrurnent. New ye f4e'_1�9-&' I certify under PENALTY OF PERJURY under the laws of the State ofk-41 I ; kip.s4i;i a I i'll-a �'Ie foregoing paragraph is true and correct. LVIANWHEMMM-F. MI MWOU M- W =1 12908308.2 C DIANE ANDREWS NOTARY PUBLIC -STATE OF NEW YORK No. 0 1 AN6359017 QualifiedIn RichmondCounty My Commission Expires 05-22-2021 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document ocument to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. /Vo 'd YP r t' - State of County of &gvj I ell RM im I VAR -1 ii emki UNW-41111 6. Romig WN"am- I I I I I I 1-j I W 10 1 the entity upon behalf of which the person(s) acted, executed the instrtitnem. I certify under PENALTY OF PERJURY under the laws of the State oftlah4*-*ta that the foregoing paragraph is true and correct. hiq 61 illi�illi•ii 1111pill Signature 12908309.2 9 DIANE ANDREWS No. 01AN6369017 Qualified In HichmondCounty My Commission Expires 05-22-2021 MA- �- ktAVJ II DQ I R ROD] kti 11 DI 1JQ V411 M KO�� City of Downey Attn: City Clerk 11111 VrPtb-rkire-ANe=e Downey, CA 90241 S E COA Lj;rl 77r'071 X =E-1 11177 DEVELOPMEN r AGREEMENT bv and among CITY OF DOWNEY, .11CCII IRG DOWNEY, IRG DOWN1iYLLC, qndUSVIDOWNEY LLC, J— 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 Delaware limited liability company, as to an undivided 90% interest, IRG DOVY'NEY, LLC, '? California limited liability company, as to an undivided 10% interest (collectively, "Developer"), and US VI Downey, LLC, a Delaware limited liabty company ("Buyer"). City, Developer an�? Buyer 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, 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 _pmextAgreement's term 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; 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 J'-xtejj.%joii 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 t -mended in the First Amendment, shall be firilher amended to add a notice address for Buyer. I t th vuch notices and communications as described in Section 15.28 shal be given to Buyer a e ,,iddress 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 Will) Pircher Nichols & Meeks LLP 1901 Avenue of the Stars, Suite 1200 Los Angeles, California 90067 Attn: Real Estate Notices (DBG/ADKJ/5080001. Facsimile: (310) 201-8922 1 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 rull Forqe 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. I I Z I �li I 12 1 / I I 1Z I I I 1IFFF7,17 I I I I , 1 115 11 11 WMU= 12908308.2 2 2.4 Countemarts: 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. M�" CITY OF DOWNEY, "DEVELOPER" PCCP IRG DOWNEY, LLC, a Delaware limited liabili comnanv -a-rMn 17,• its Matiagitig Member "DEVELOPER" IRG DOWNEY, LLC, By: IRG 111, LLC By: S1. Properties, Inc, By:— Name:— Its:, 129083081 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, 41ccuracy, or validity of that document. State of California County of befo1. . $�; , a Notary Public, _10�A -"_YeC j re me, personally appeared _�<.> _ L>who proved to me on the basis of satisfactory evidence to be the personW whose name�* is/W subscribed to the within instrument and acknowledged to me that he/shqAhey executed the same in his/huA4err authorized capacity(i�% s/liVAh6r signature�*) on the instrument the persoq�g), or ,f , 4, and that by hi. 11.0] the entity upon beh; i r of which the person(Aacted, 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. art C. K. R! CINOS Notary Public - Callfornla Los Angeles County Commission 0 2197743 turMy Comm, Ulmin Jun 10, 2021 Signae 12908308.2 5 2.4 Countemarts: 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: IM "DEVELOPER" PCCP IRG DOWNEY, LLC, a Delaware limited liability company 11my: PCCP LB IRG Downey, LLU. its Managing Member I By: Name:— "DEVELOPER" IRG DOWNEY, LLC, g4w,"1w-1 '-A , J, 11 12909308.2 NEEMMEEM A nota-w,gbli I ift1r: 0 ua WON' A-111 3�ff -FT On � --'I , before me, Notary Public, personally appeared wiio prove(I to iiw on the basis of satisfactory evidence to be the personos� nam- --e --(A' is/ap6 subscribed to the within instrument and acknowledged to me that he/sjfe/tl)dy executed the same in hisfbier/fl-jeir authorized i. :r and that by histh9ir si=e(j. on the instrument the Derson(ft. or al AM I NO 174 ON OQI� I WE 1AM ULUM 12908308.2 5 1 4" Rf tf, I NAYNAY W'J,M CA 'H(J(tiviA US VI DOWNEY, LLC, a R-)Ukuy- 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 Name: Tide: 'ko, v By:�' Name: `511 v ti Vt g er.i Title: 4r for MA'V° pq' - 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 or validity of that document. State of County of Ale- w r k the entity upon behalf of which the person(s) acted, executed the instrument. New ye tk 15;) I certify under PENALTY OF PERJURY under the laws of the State of foregoing paragraph is true and correct. aff"I"M IM413"4 DIANE ANDREWS NOTARY PUBUC-STATE OF NEW YO No. 01 AN6359017 Qualif led in Richmond County My Commission Expires 05-22-2021 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, a.ndnotthe truElifulness, accuracy, or validit of that document. L' - State of "6Rimia- County ofe�- kal Wj-) W1110 the entity upon behalf of which the person(s) acted, executed the instrtiment. I certify under PENALTY OF PERJURY under the laws of the State of Ca44w mr that the foregoing paragraph is true and correct. IANE ANDRETTS .1*TAAY FY6Ll(;-STATE IF NEVT YI&K No. 01 AN6359017 Qualified In Richmond County My Commission Expires 05-22-2021 Signature _- 12908308.2 9