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HomeMy WebLinkAboutBella Terra Associates - 2006-03-20 (3) 2000 Main Street, Huntington Beach, CA City of Huntington Beach 92648 File #: 22-360 MEETING DATE: 5/3/2022 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Sean Joyce, Interim City Manager VIA: Ursula Luna-Reynosa, Director of Community Development PREPARED BY: Kriss Casanova, Economic Development Manager Subject: Approve and authorize a First Amendment to the License Agreement with Bella Terra Associates, LLC for a Police Substation at 7777 Edinger Avenue. Suite D-135 Statement of Issue: The City Council is requested to authorize execution of a First Amendment to the License Agreement with Bella Terra Associates, LLC for use of real property located at 7777 Edinger Avenue, Suite D- 135 by the Police Department for the Bella Terra Substation. Financial Impact: There is no financial impact associated with this request. Recommended Action: Approve and authorize the Mayor and City Clerk to execute the "Amendment to License Agreement - Bella Terra" for use of real property located at 7777 Edinger Avenue, Suite D-135 by the Police Department for the Bella Terra Substation. Alternative Action(s): Do not approve the amendment and direct staff accordingly. Analysis: The License Agreement ("Agreement") between the City and Bella Terra Associates. LLC, for a police substation at the Bella Terra Mall was originally executed in 2006 and provided 2,030 square feet of office space at no cost. The substation at Bella Terra allows for a more substantial police presence in the complex and the surrounding neighborhood, which helps to decrease response times and allows officers to stay in a more centralized area when processing paperwork and other routine assignments. The agreement had a term of ten years. expiring in 2016. and has since been extended by mutual consent of both parties. The amendment (Attachment #1 ) further extends the term to 2026, City of Huntington Beach Page 1 of 2 Pnnted on 4/272022 File #: 22-360 MEETING DATE: 5/3/2022 reduces the size of the space from 2,030 square feet to 286 square feet, eliminates use of the shared conference room, and provides one designated parking space. The smaller space is sufficient for the Police Department to accommodate its work stations, computers, and electrical equipment and allows Bella Terra Associates, LLC to utilize the additional space for their growing internal team. The City will continue to only pay for its own telephone and cleaning services and can terminate with 30 days written notice. Bella Terra Associates, LLC will spend approximately $15,000 on improvements to modify the space. Staff recommends approval of the proposed amendment, which has been reviewed and approved by the City Attorney. Environmental Status: Not applicable. Strategic Plan Goal: Financial Sustainability, Public Safety or Other Attachment(s): 1. Amendment to the License Agreement 2. Original Staff Report and License Agreement City of Huntington Beach Page 2 of 2 Printed on 4/272022 aowe,e1.48 Legmzar- AMENDMENT TO LICENSE AGREEMENT BELLA TERRA THIS AMENDMENT TO LICENSE AGREEMENT (this "Amendment"), dated for reference purposes as of _, 2022, ("Operative Date"), is made and entered by and between Bella Terra Associate , LLC,a Delaware limited liability company(hereafter"Licensor") and the City of Huntington Beach (hereafter"Licensee"), with reference to the following recitals, which the parties agree to be true and correct: RECITALS A. Licensee and Licensor entered into that certain License Agreement, dated March 20, 2006, ("Agreement') for the Licensed Area more particularly described under the Agreement; and B. Licensee and Licensor now desire to amend the Agreement to amend the Licensed Area and otherwise modify the Agreement as provided below. NOW, THEREFORE, in consideration of the agreements contained herein and for other valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, do hereby covenant and agree as follows: AGREEMENT 1. Recitals: Unmodified Terms; Capitalized Terms. Licensor and Licensee agree that the above Recitals are true and correct and are incorporated herein by this reference. The terms and provision of the Agreement which are not expressly modified by this Amendment shall remain in full force and effect. The use of any capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Agreement. In the event of any conflict between the terms and conditions set forth in this Amendment and in the Agreement, the terms and conditions of this Amendment shall control. 2. Licensed Area. The Licensed Area shall be reduced and amended, the new Licensed Area is approximately 286 square feet and is depicted in Exhibit A attached hereto and incorporated herein by this reference. No shared conference room use shall continue under the terms of the Agreement, the conference room shall be utilized solely by Licensor. Additionally, only one (1)parking space shall be designated for Licensee, not two(2). 3. Term. The Term of the Agreement expired on March 19, 2016. Licensor and Licensee have extended the Term to March 19, 2026. Licensor retains all of their original rights to terminate as provided under the Agreement. 22-11171/280067 1 5. Binding Effect and Severability. This Amendment shall not be et7ectiyc as an amendment or modification to the Agreement unless and until it has been executed by both Licensor and Licensee. By executing and delivering this Amendment. the person or persons signing on behalf of Licensor and Licensee represent and warrant that they have the requisite authority to bind I-icensor and Licensee, respectively, and that no consent of any other party is required. The agreements, representations, and warranties set forth in this Amendment shall survive the execution hereol'. It' any teen or provision of this Amendment shall be held to be invalid or unenforceable for any reason. such term or provision shall be ineffective to the extent of such invalidity or unenforccability without invalidating the remaining terms and provisions hereof. and this Amendment shall be construed as if such invalid or unenforceable terni or provision had not been contained herein, provided, however. that the foregoing shall in no way be interpreted or construed to effect the enforceability of the release provisions of this Amendment. 6. Governing Law. This Amendment constitutes the complete understanding of the parties with respect to the subject matter of this Amendment and cannot be changed except by instrument in writing signed by the parties. This Amendment shall be governed by the laws ofthe State of California applicable to contracts entered into, executed, and wholly perfornied within the State of California. and venue shall be in the count\' where the Premises are located. 7. Accessibility Disclosure. L.iccnsor hereby advises Licensee that the Project and the Premises have not undergone an inspection by a certified access specialist. and Licensor shall have no liability_ or responsibility to make any repairs or modifications to the License Area or the Shopping Center in order to comply with accessibility standards. The following disclosure is hereby made pursuant to applicable California law: "A Certified Access Specialist (CASp)can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or Licensor may not prohibit the Licensee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the Licensee or tenant. if requested by the Licensee or tenant. The parties shall nwtually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection. and the cost of making any repairs necessary to correct violations of construction- related accessibility standards within the premises." [Ccd. CA?. Code .Section 1938(e)]. 8. Counterparts. To facilitate execution of this Amendment. this Amendment may be executed in one or more counterparts as may be convenient or required, and an executed copy of this Amendment delivered electronically by facsimile or c-mail shall have the effect of an original, executed instrument. All counterparts of this Amendment shall collectively constitute a single instrument: but, in making proof of this Amendment it shall not be necessary to produce or account for more than one such counterpart executed by each party hereto. It shall not be necessary for the signature of. or on behalf of. each party hereto, or that the signature ofall persons required to bind any such party appear on each counterpart of this Amendment. 22-11171/280067 THE TERMS AND PROVISION OF THE AGREEMENT WHICH ARE NOT EXPRESSLY MODIFIED BY THIS AMENDMENT SHALL REMAIN IN FULL FORCE AND EFFECT. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Effective Date set forth above. LICENSOR LICENSEE BELLA TERRA ASSOCIATES, LLC, City of Huntington Beach, a municipal a Delaware limited liability company corporation of the State of Califo By: V 1), (]�t , - ki-A I Name: T . May r Its: Managing Member City Clerk s i% APPROVED AS FORM: Ci Attorney ►�f fNITIATED AND APPROVED: "'L �a- a Director of Community Development REVIEWED AND APPROVED: City Manager z2-111'1/2e006' 3 j, a CITY OF HUNTINGTON BEACH LOLV INTERDEPARTMENTAL COMMUNICATION TO: Honorable Mayor and City Council Members SUBMITTED BY: Sean Joyce. Interim City Manager PREPARED FROM: Ursula Luna-Reynosa, Director of Community Development (I` DATE: May 3, 2022 SUBJECT: SUPPLEMENTAL COMMUNICATION FOR ITEM 20 (22-360) - Approve and Authorize a First Amendment to the License Agreement with Bella Terra Associates, LLC for a Police Substation at 7777 Edinger Avenue, Suite D-135 This communication is being provided to update Exhibit A in the First Amendment to the License Agreement with Bella Terra Associates. LLC The revised exhibit was provided by Bella Terra Associates. LLC and more accurately reflects the new license area for the police substation xc Michael Gates. City Attorney Robin Estanislau, City Clerk Executive Team SUPPLEMENTAL COMMUNICATION Meeurq Dole: Agends bm No.: I aT 3(t4,L_ EXHIBIT A New License Area 4�-6" 171-2" R CLOSE POLICE SUB STATION " 22'X12' iv C 22'- 2" POLICE STATION 286 USF City of Huntington Beach 2000 Main Street ♦ Huntington Beach, CA 92648 (714) 536-5227 ♦ w"nw.huntingtonbeachca.gov i Office of the City Clerk Robin Estanislau, CAN,Clerk May 10, 2022 Grace Huang General Manager Bella Terra & La Habra Marketplace 7777 Edinger Ave., Suite 133 Huntington Beach, CA 92647 Dear Ms. Huang: Enclosed is a fully executed copy of the Amendment to License Agreement Bella Terra approved by City Council on May 5, 2022. Sincerely, 4. q4�a.-� Robin Estanislau, CIVIC City Clerk RE:ds Enclosure Sister Cities: Anjo, Japan • Waitakere, New Zealand EXHIBIT A New License Area ELM POLICE 22'X7' /111 71/280067 4 200SMAR -9 P111 33 Council/Agency Meeting Held O 6 ` Cl1 Ytor Deferred/Continued to HUWTIr GTCI 9 ACN Approved Cl Conditionally Approved ❑ Denied I CI S Slifiature Council Meeting Date 3/20/2006 Department ID Number ED 06-15 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO HONORABAE M(AAYYOR A/ _ND CIT4CCI NCIL MEMBERS SUBMITTED BY PENEL0 E CULBR(E.,TH-H-�GRARAFT ADMINISTRATOR PREPARED BY KENNETH W SMALL CHIEF OF POLICE 6_101 A60*4(.e9 STANLEY SMALEWITZ DIRECTOR OF ECONOMIC,; DEVELOPMENT SUBJECT APPROVAL OF LICENSE AGREEMENT FOR BELLA TERRA POLICE SUBSTATION AT 7777 EDINGER AVENUE SUITE D-135 Statement of Issue Funding Source Recommended Action Alternative Action(s) Analysis Environmental Status Attachment(s) Statement of Issue The City Council is requested to approve a ten-year license agreement with Bella Terra Associates, LLC for the use of real property located at 7777 Edinger Avenue Suite D-135 for use by the Police Department for the new Bella Terra Substation Funding Source Not Applicable Recommended Action Motion to 1 Approve the lease agreement by and between the City of Huntington Beach and Bella Terra Associates LLC for the use of real property located at 7777 Edinger Avenue Suite D-135 for use by the Police Department for the Bella Terra Substation 2 Authorize execution of the lease agreement by the Mayor and City Clerk Alternative Action(s) No alternatives to the proposed license agreement were considered Analysis A license agreement between the City and Bella Terra Associates Inc for a police substation at the new Bella Terra Mall is submitted for approval The mall owners have made available approximately 2 030 square feet of office space to the City for use by the Police Department at no cost The City will only pay for its own telephone and cleaning services The term of the agreement is ten years however the City will have the ability to terminate the agreement at any time upon 30 days written notice ts� REQUEST FOR ACTION MEETING DATE March 20, 2006 DEPARTMENT ID NUMBER ED 06-15 The Police Department has determined that operating a substation at Bella Terra will allow for a more substantial presence in the complex and the surrounding neighborhood, which would decrease response times and allow officers to stay in a more centralized area when processing paperwork and other routine assignments The Department is currently considering basing two full-time officers to operate the substation Thursday through Sunday Volunteers are anticipated to staff the reception area during business hours Monday through Friday Staff recommends approval of the proposed license agreement which has been reviewed and approved by the City Attorney Environmental Status Not applicable Attachment(s) City Clerk's Page No. Description 1 Lease agreement by and between the City of Huntington Beach and Bella Terra Associates LLC for the use of real property located at 7777 Edinger Avenue Suite D-135 2 Site Map G\Steve\Real Estate\Police\RCA for Bella Terra Substation Lease doc 2 3/7/2006 9 03 AM 154 Lease agreement by and between the City of Huntington Beach and Bella Terra Associates, LLC for the use of real property located at 7777 Edinger Avenue, Suite D-135 ATTACHMENT # 1 - 155 LICENSE AGREEMENT 1V This License Agreement ('Agreement' )is made this� day of March 2006 by and between Bella Terra Associates, LLC, a Delaware limited liability company ("Licensor"), and the City of Huntington Beach('Licensee") RECITALS WHEREAS Licensor owns and operates the Bella Terra Shopping Center ('Center") located at 7777 Edinger Avenue, Huntington Beach, California, WHEREAS Licensee desires to occupy a portion of Suite D-135 located in the Management Office/Secunty Offices located in the Center as shown on the attached Exhibit A, consisting of approximately 2,030 square feet(hereinafter referred to as the ` Licensed Area") for purposes of operating a City of Huntington Beach Police Substation and WHEREAS Licensor is willing to grant Licensee use of the Licensed Area subject to the terms and provisions of this Agreement, NOW, THEREFORE, Licensor hereby grants and Licensee hereby accepts a revocable license to operate at the Licensed Area, subject to the terms and provisions hereinafter set forth ARTICLE I LICENSED AREA AND USE THEREOF Section 1 1 Licensor hereby grants to Licensee and Licensee hereby accepts from Licensor a License to use the Licensed Area of the Centei The Licensed Area shall be used solely for operation of a City of Huntington Beach Police Substation Licensee shall have the right, but not the obligation to operate in Licensed Area 365 days per year, 24 hours per day Section 12 'lhe Licensed Area shall be equipped set up and maintained at the sole expense of Licensee Licensor agrees to furnish to the Licensed Area electricity water gas, trash service, internet access, and sewer service and deliver the Licensed Area to Licensee equipped with these services Licensee accepts the Licensed Area in its current "as-is" condition Subject to the provisions of Article XV below, Licensee shall have the right during the term of this Agreement to make, at its own expense, any interior, cosmetic alterations or improvements to the Licensed Area Licensee at Licensee's cost, shall repair any damage to the Licensed Area caused by Licensee or Licensee s contractors during performance of such alterations or improvements in or on the Licensed Area Licensee shall have the right to install satellite dishes and/or other antennas and/or other facilities for television, music and telecommunications ( Communication Equipment') on, and affix Communication Equipment to on or about the Licensed Area Any satellite dishes of antennas on the roof shall be properly screened to Licenser's satisfaction Licensee s use of the Licensed Area shall be exclusive for the term specified herein and not violate applicable laws and ordinances All such work shall be performed in a first class manner and shall comply with all laws and regulations Section 13 Licensor and Licensee acknowledge and agree that 1 156 (a) Neither the Licensed Area, nor any other space or area whatsoever at the Center is leased to the Licensee During the term of this Agreement, the Licensee shall have the use of the Licensed Area as Licensee solely for the purposes and uses herein slated The Licensee shall have the right to occupy the Licensed Area and to operate pursuant to the License hereby granted and to continue in the possession thereof only so long Licensee is in compliance with the terms and conditions of this Agreement (b) Licensee shall use the Licensed Area solely for the purpose stated in Section 1 1, and for no other purposes whatsoever (c) Licensee shall in no way interfere with nor jeopardize the business or reputation of the Property (d) Licensee acknowledges that neither the Licensor nor its personnel will have any responsibility for the operation of the Licensed Area Licensee's operations therein or any other aspect of Licensee's operations Licensee shall indemnify and hold harmless Licensor(its officers, principals and employees), its Landlord and mortgagee (hereinafter referred to collectively as the additional insureds') against any claims, costs or liabilities related to or arising out of Licensee's use of the Licensed Area or Licensee s obligation under this Agreement Licensee shall provide insurance as specified in Article IV of this Agreement and name the additional insureds on these insurance policies as their interests may appear Licensee further agrees to provide its employees within all required coverage, including without limitation workmen s compensation insurance Licensee shall pay all costs incurred with respect to the insurance coverage provided by Licensee under this Agreement (e) Licensee has not relied upon any representation statement or warranty of Licensor or of Licensor s agents or employees with respect to the Licensed Area, the Center or the business to be conducted thereat, and in no event shall Licensor be liable to Licensee for any defect in the Licensed Area or for any limitation on its use (except to the extent of Licensor s or Licensor's agents gross negligence or willful misconduct) and Licensee accepts the same "AS IS WHERE IS (f) Signs and Decor All signage and decor to be placed on the exterior of Licensed Area by Licensee shall be manufactured and displayed in accordance with the Sign Criteria Program developed by Licensor, as the same may change from time to time (g) Grant of Nonexclusive Common Area Rights Licensor hereby grants to Licensee its patrons, employees, and authorized representatives a nonexclusive right to use the Common Area within the Center for vehicular parking and for pedestrian and vehicular ingress, egress and travel and restroom access Licensor shall provide Licensee with two dedicated parking spaces in the service yard at the nearest possible location to the Licensed area or at a location mutually agreeable to both Licensor and Licensee 2 157 ARTICLE 11 TERM Section 2 1 The term of this Agreement herein granted shall commence as of M P/f d0 2o6bfor a TEN (10) year term which shall expire on , unless sooner exte terminated as specifically provided herein Section 2 2 Notwithstanding the foregoing, Licensee shall have the right to terminate the term of this Agreement without any further obligations or liability hereunder upon not less than thirty(30) days' prior written notice of such election Licensor shalt have the right to terminate the term of this Agreement without any further obligations or liability hereunder upon not less than sixty (60)days' prior written notice of such election Section 2 3 This Agreement may be extended at any time by mutual consent of the parties subject to the terms herein ARTICLE III LICENSEE FEE Section 3 1 There shall be no license fee associated with or required by this License Agreement ARTICLE IV INSURANCE Section 4 l Insurance Licensee shall at all times during the term of this Agreement and at its own cost and expense maintain, procure and continue in force commercial general liability insurance for personal injury bodily injury (including wrongful death) and damage to property with a combined single limit of not less than Two Million and No/100 Dollars ($2,000,000 000) pen occurrence naming Licensor as an additional insured Certificates of insurance evidencing the required insurance coverage shall be delivered to Licensor prior to Licensee's occupancy of the Licensed Area and thereafter executed copies of renewal pohcies or certificates thereof shall be delivered to Licensor within thirty (30) days prior to the expiration of the term of each such policy All policies on insurance delivered to Licensor must contain a provision that the company writing the policy will give Licensor twenty (20) days notice in writing in advance of any cancellation or lapse or the effective date of any reduction in the amounts of insurance All policies shall be written as primary policies and shall provide that any insurance which Licensor or Licensor s lender may carry is strictly excess, secondary and non- contributing with any insurance carried by Licensee Licensee shall be permitted to carry the insurance required in this Agreement under a blanket policy which also covers other locations of the Licensee Notwithstanding the foregoing, the Licensee may provide liability insurance through the Big Independent Cities Excess Pool ("BiCFP"), providing for a self insured retention in the amount applicable to all the members of BICEP(for calendar year 2006, such self insured retention amount is $1,000,000 with the member cities risk sharing any losses from S1,000,000 to $2,000,000 or larger) 3 158 Section 4 2 Indemnifications and Waivers (a) Indemnity To extent permitted by law, and except to the extent any such damage loss, claim, liability, or expense is attributable to the gross negligence or willful misconduct of Licensor its employees, authorized agents and representatives Licensee will at Licensee s sole cost and expense indemnify Licensor Parties against all Claims arising from (i) any Personal Injury, Bodily Injury or Property Damage whatsoever occurring in or at the Licensed Area, (it) any Bodily Injury to an employee of a Licensee Party arising out of and in the course of employment of the employee and occurring anywhere in the Center (Ili) the use or occupancy or manner of use of occupancy, or conduct or management of the Licensed Area by Licensee (b) Waivers To the extent permitted by law, and except to the extent any such damage, loss, claim liability, or expense is attributable to the gross negligence or willful misconduct of Licensor, its employees, authorized agents and representatives, Licensee on behalf of all Licensee Parties, waives all Claims against Licensor Parties arising from the following (i) any Personal Injury, Bodily Injury or Property Damage whatsoever occurring in or at the Licensed Area (u) any loss of or damage to property of a Licensee Party located in the Licensed Area or other part of the Center by theft or otherwise, (m) any Personal Injury Bodily Injury or Property Damage to any Licensee Party caused by other tenants of the Center parties not occupying space in the Center, occupants of property adjacent to the Center, or the public or by the construction of any private public or quasi-public work occurring either in the Licensed Area or elsewhere in the Center (iv) any interruption or stoppage of any utility service or for any damage to persons or property resulting from such stoppage, (v) business interruption or loss of use of the Licensed Area suffered by Licensee (vi) any latent defect in construction of the Center (vii)damages or injuries or interference with Licensee's business loss of occupancy or quiet enjoyment and any other loss resulting from the exercise by Licensor of any right or the performance by Licensor of Licensor's maintenance or other obligations under this Agreement or(vui) any Bodily Injury to an employee of a Licensee Party arising out of and in the course of employment of the employee and occurring anywhere in the Center (c) Licensor shall protect, defend, indemnify and hold harmless Licensee, its officers officials, employees and agents from and against any and all liability loss damage expenses, costs (including without limitation costs and fees of litigation of every nature)arising out of or in connection with Licenser's performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement except such loss or damage which was caused by the negligence or willful misconduct of the Licensee (d) Waivers of Subrogation Licensor and Licensee each hereby waive all rights of recovery against the other on account of loss and damage occasioned to such waiving party to the extent that such loss or damage is insured against under any insurance policies carried by the waiving party Licensor and Licensee shall each cause their insurers to waive their subrogation rights consistent with the foregoing (e) Definitions For purposes of this Paragraph 9 (1) the term 'Licensee Parties' means Licensee, and Licensee s officers members partners agents employees, subLicensees, licensees, invitees and independent contractors and all persons and entities 4 159 03/07/2006 14 43 FAX 714 374 1550 CITY OF HUNT BEACH 46 002/002 claummg through any of these persons or entities, (u)the term"Licensor Parties"means Licensor and the partners,venturerer,trustees and ancillary trustees of Licensor and the respootive officers, directors shareholders,members,parents, subsidiaries and any other affiliated entities,personal representatives, executors,heirs,assigns licensees, invites, beneficiaries,agents, servants employees and independent contractors of these persons or entities, (in)the term"Indemnify"means mdemnify,defend(vnth counsel reasonably acceptable to Licensor)and hold free and harmless for,from and agamst, (iv) the term 'Clam" means all liabilities,claims,damages (including consequential damages),losses,penalties, litigation,demands, causes of action (whether in tort or contract, in law or at equity or othervnse), suits proceedings,judgtnancs,disbursements charges, assessments and expenses (including attorneys and experts' fees and expenses incurred in investigating defending,or prosecuting any litigation,claim,or proceeding), (v)the term 'Weavers"means that the Licensee Parties waive and knowingly and voluntarily assume the risk of and(vi)the term "Bodily Injury","Personal Injury and"Property Damage vnU have the same meanings as in the form of commercial general insurance policy issued by Insurance Services Office, Inc most recently prior to the date of the injury or loss in question ARTICLE v TAXES AND OTHER CHARGES Section 51 Licensee shall pay and discharge when due and prior to the mtposiuon of any interest or penalty for delinquency in payment,all taxes, fees,or assessments imposed upon The operation of the Licensee s use of the Licensed Area_ Notwithstanding the foregoing, Licensee shall not be obligated to pay any taxes,charges or assessments applicable to Licensor s collection of the License Fee or with respect to Licensor s ownership of the Center Section 5 2 If requested by Licensor,Licensee shall furnish to Licensor a receipt or other evidence of the payment of each tax,assessment or imposition, or any such other charge winch is payable by Licensee within five(5)business days of such request Section 53 Licensee shall provide for and maintain its own secure telecommamicanons and data line equipment within the leased premises, and shall be responsible for the cost of maintaining these designated utilities Licensee shall also provide for and maintain a cleaning service for the leased premises,and shall be responsible for the cost of this service Licensor shall maintain and provide payment for all other utilities associated with the leased premises,including but not limited to,electrical,gas,water, sewer and trash services and shall pay all common area auatenance costs(CAM costs) including taxes insurance and gement fees Licensj shall not pay any additional rent or CAM costs Licensee shall not be responsible for any utilities serving the Common Areas of the Property TIS 61-110to Section 5 4 Licensee shall,during the Term of this Agreement,keep the Licensed Area in neat and clean condition subject to Licensor s obligations 5 160 claiming through any of these persons or entities, (u) the term `Licensor Parties"means Licensor and the partners venturerer trustees and ancillary trustees of Licensor and the respective officers, directors shareholders,members, parents, subsidiaries and any other affiliated entities, personal representatives executors, heirs assigns licensees, invites, beneficiaries, agents, servants, employees and independent contractors of these persons or entities, (in) the term `Indemnify means indemnify defend (with counsel reasonably acceptable to Licensor) and hold free and harmless for from and against (iv) the term ` Claims ' means all liabilities, claims damages(including consequential damages) losses, penalties, litigation, demands, causes of action (whether in tort or contract, in law or at equity or otherwise), suits, proceedings,judgments, disbursements, charges, assessments and expenses (including attorneys and experts' fees and expenses incurred in investigating, defending, or prosecuting any hugation, claim, or proceeding), (v)the term "Waivers"means that the Licensee Parties waive and knowingly and voluntanly assume the risk of and (vi)the term `Bodily Injury "Personal Injury" and 'Property Damage"will have the same meanings as in the form of commercial general insurance policy issued by Insurance Services Office, Inc most recently prior to the date of the injury or loss in question ARTICLE V TAXES AND OTHER CHARGES Section 5 1 Licensee shall pay and discharge when due and prior to the imposition of any interest or penalty for delinquency in payment all taxes, fees, or assessments imposed upon the operation of the Licensee's use of the Licensed Area Notwithstanding the foregoing Licensee shall not be obligated to pay any takes charges or assessments applicable to Licenser's collection of the License Fee or with respect to Licensor s ownership of the Center Section 5 2 If requested by Licensor, Licensee shall furnish to Licensor a receipt or other evidence of the payment of each tax, assessment or imposition, or any such other charge which is payable by Licensee, within five (5) business days of such request Section 5 3 Licensee shall provide for and maintain its own secure telecommunications and data line equipment within the leased prerruses and shall be responsible for the cost of maintaining these designated utilities Licensee shall also provide for and maintain a cleaning service for the leased premises and shall be responsible for the cost of this service Licensor shall maintain and provide payment for all other utilities associated with the leased premises, including but not limited to, electrical gas, water, sewer and trash services, and shall pay all common area maintenance costs (CAM costs) including taxes, insurance, and management fees Licenser shall not pay any additional rent or CAM costs Licensee shall not be responsible for any utilities servmg the Common Areas of the Property Tls al-ilob Section 5 a Licensee shall during the Term of this Agreement, keep the Licensed Area in neat and clean condition subject to Licensor s obligations 5 161 ARTICLE VI EVENTS OF DEFAULT AND REMEDIES ON DEFAULT Section 6 1 Any of the following occurrences or acts shall constitute an `Event of Default under this Agreement (a) if Licensee shall (i) default in making payment when due of the License Fee and such default shall continue twenty(20) business days of notice of non payment (but notwithstanding, no notice or 20 day cure period shall apply more than one time during the term of this Agreement), or (it) default in making payment when due of any other amount payable by Licensee hereunder and such default shall continue twenty(20) business days of notice of non payment (but notwithstanding no notice or 20 day cure period shall apply more than one time during the term of this Agreement), or (m) default in the observance or performance of anv other provision of this Agreement to be observed or performed by Licensee hereunder or (b) The suspension revocation or expiration of any of the Licensee's licenses required to conduct its business at the Licensed Area, of (c) Licensee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to the Bankruptcy Act or under any similar federal or state law now or hereafter in effect, or shall be adjudicated a bankrupt or become insolvent, of shall make an assignment for the benefit of its creditors, or shall admit in writing of its inability to pay its debts as they become due, or shall be dissolved or shall suspend payment of its obligations, or shall take any corporate action for the purpose of effecting any of the foregoing Section 6 2 Except with respect to Section 6 1(a)(i) and 6 1(a)(n), whenever an Event of Default shall have occurred Licensor may, at its election, in its sole discretion, terminate this License upon ten (10) business days written notice to Licensee whereupon all rights of Licensee to the use of the Licensed Area shall forthwith terminate as though this License had never been made, and Licensor shall have the immediate right of possession of the Licensed Area and the right to remove all persons and property therefrom without liability to the Licensee whatsoever, and in addition shall have the right to recover forthwith from the Licensee any and all License Fees and all other amounts payable by Licensee hereunder which have become due as of the date the termination of this License Notwithstanding the foregoing, no Event of Default shall deem to have occurred if Licensee cures said Default prior to the expiration of the twenty(20) day notice period In the event of a Default under Section 6 l(a)(t) or 6 1(a)(u), after the applicable cure period Licensor may, at its election in its sole discretion terminate this License with no further notice required to Licensee whet eupon all rights of Licensee to the use of the Licensed Area shall forthwith terminate as though this License had never been made and Licensor shall have the immediate right of possession of the Licensed Area and the right to remove all persons and property therefrom without Lability to the Licensee whatsoever and in addition shall have the right to recover forthwith from the Licensee any and all License Fees and all other amount% 6 162 payable by Licensee hereunder which have become due as of the date the termination of this License Section 6 3 The failure of the Licensor to insist upon a strict performance of any term or condition of this Agreement shall not be deemed a waiver of any right or remedy that the Licensor may have and shall not be deemed a waiver of any subsequent breach of such term or condition ARTICLE VII DAMAGE OR DESTRUCTION OF THE CENTER/EMINENT DOMAIN In the event of(material) damage to or destruction of the Center or to the Licensed Area, or in the event any (material) portion of the Center or Licensed Area shall be lawfully taken or condemned, either Licensee or Licensor shall have the right to terminate this Agreement as of the date of the damage or destruction or as of the taking (as the case may be) and upon such termination all License Fees shall be prorated and neither party shall thereafter have any rights or obligations thereafter accruing under this Agreement Licensee shall have no obligation with respect to any damage or destruction to the Licensed Area of the Center due to any casualty ARTICLE VIII ASSIGNMENT Section 8 1 Licensee shall not assign this Agreement or any interest therein and shall not sublicense the Licensed Area or any part thereof without the prior wTitten consent of Licensor at Licensor s sole and absolute discretion ARTICLE IX BINDING EFFECT, MERGER AND CONSOLIDATION, ENTIRE AGREEMENT Section 9 1 All the terms and provision contained in this Agreement shall be binding upon inure to the benefit of and be enforceable by, the successors and assigns of Licensor to the same extent as if each such successor or assign were named as part of this Agreement Section 9 2 This Agreement embodies the entire agreement between Licensor and Licensee relating to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter Neither this Agreement nor any provision hereof may be amended,modified, waived discharged or terminated orally but only as expressly provided herein or by an instrument signed by Licensor and Licensee Section 9 3 As used in this Agreement and whenever required by the context thereof, each number both singular and plural shall include all numbers and each gender shall include all genders Licensor and Licensee as used in this Agreement or in any other instrument referred to in or made a part of this Agreement shall likewise include both the singular and the plural, a corporation co partnership, individual or person acting in any fiduciary capacity as executor, administrator trustee or in any other representative capacity All covenants herein contained on the part of Licensor and Licensee shall be joint and several The language of all parts of this Agreement shall in all cases be construed as a whole according to its fair meaning, and not strictly for or against any of the parties If any provision of this Agreement is held by an 7 163 arbitrator or court of competent Jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement No covenant or provision shall be deemed dependent upon any other unless so expressly provided here Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law ARTICLE X NOTICES Section 10 1 All Notices must be in writing and shall be deemed to have been properly given or served by depositing in the United States Mail,postpaid and registered or certified return receipt requested, or sent by overnight delivery service, and addressed to the addresses set forth below All Notices shall be effective upon being deposited in the United States Mail However,the time period in which a response to any Notice must be given, if any, shall commence to run from the date of receipt of the Notice by the addressee thereof Rejection or other refusal to accept or the inability to deliver because of a changed address of which no Notice was given shall be deemed to be receipt of the Notice sent By giving at least five (5) days Notice thereof either parry shall have the right to specify as its address any other address within the United States of America Licensor s Address Bella'ferra Associates, LLC c/o DJM Capital Partners 60 S Market Street, Suite 1120 San Jose, CA 95113 -a36G 408-271-0366 408-271 0377— Fax Tax ID# 20-2921485 Licensee's Address City of Huntington Beach ATTN Chief of Police 2000 Main Street P O Box 190 Huntington Beach CA 92648 With copy to City of Huntington Beach Real Estate Services AYIN Steve Holtz 2000 Main Street Huntington Beach, CA 92648 8 164 i ARTICLE XI CONTROVERSY Section 11 1 Any controversy arising under this Agreement which is not resolved by the parties hereto shall be determined in and by the courts of the Sate of California, in accordance with the laws of the State of California ARTICLE XH COMPLIANCE Section 12 1 Licensee agrees at its own cost and expense to promptly execute and comply with all present or future rules, regulations, requirements laws and ordinances of all governmental authorities having junsdiction of the Licensed Area or the business of Licensee thereat, and to obtain all licenses and/or permits required to conduct the business of Licensee at the Licensed Area Notwithstanding the foregoing, Licensor shall not be responsible for any alterations or additions to the Licensed Area required by applicable laws and/or ordinances ARTICLE XIII MISCELLANEOUS Section 13 1 Nothing contained herein nor this Agreement shall be construed nor is it the intent of the parties to create ajoint venture or partnership between Licensor and Licensee Section 13 2 This Agieement is not to be recorded if this provision is breached any such recording shall be deemed null and void Section 13 3 if any provision of this Agreement or the application thereof to any person or in any circumstances shall be determined to be invalid, unlawful or unenforceable to any extent,then the remainder of this Agreement, and the application of such provisions other than the ones deemed invalid unenforceable or unlawful shall not be affected thereby and each remaining provision hereof shall continue to be valid and may be enforced to the fullest extent permitted by law Section 13 4 Nondiscrimination Licensee covenants by and for itself, its successors and assigns, and all persons claiming under or through it and this Agreement is made and accepted upon and subject to the following conditions That there shall be no discrimination against or segregation of any person or group of persons on account of sex marital status,race, color religion creed, national origin or ancestry, in the leasing, subleasing, transferring, use, or enjoyment of the Property nor shall Licensee itself, or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection location number use or occupancy of tenants Licensees, subLicensees, subtenants or vendees in the Center Section 13 5 Holding Over If Licensee continues to occupy the Licensed Area following the expiration or termination of this Agreement, such holding over shall constitute renewal of this License on a month to month basis, with License Pee payable for each month equal to 125%of the License Fee payable during the original term The License Term may 9 165 thereafter be terminable by either party upon one month s notice and otherwise on the terms of this Agreement Section 13 6 Authority Each signatory to this Agreement represents and warrants that (i)he or she is duly authorized to execute and deliver this Agreement on behalf of such entity in accordance with its corporate bylaws statement of partnership or certificate of limited partnership as the case may be, (n) this Agreement is binding upon said entity in accordance with its terms and (m) the entity is a duly organized and legally existing corporation or partnership in good standing in the State of Califorma Section 13 7 Attorneys' Fees In the event that any action shall be instituted by either of the parties to this Agreement (or their successors) for the enforcement of any of their rights in and under this Agreement, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees fiom the non prevailing party Section 13 8 Conference Room Licensee and Licensor agree to share the Conference Room adjacent to the Licensed Area, and identified on Exhibit A on a first come first served basis pursuant to rules and procedures reasonably determined by licensor This conference room shall not house any City of Huntington Beach Police Department telecommunications equipment Section 13 9 Brokers Each party warrants to and for the benefit of the other that it has engaged no broker of finder and that no claims for brokerage commissions or finder's fees will arise in connection with the execution of this Agreement and each of the parties agrees to indemnify the other against, hold it harmless from all liabilities arising from any such claim (including, without limitation, the cost of attorney s fees in connection therewith) Section t3 10 Legal Services Subcontracting Prohibited Licensor and Licensee agree that Licensee is not liable for payment of any subcontractor work involving legal services and that such legal services are expressly outside the scope of services contemplated hereunder Licensor understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for Licensee, and Licensee shall not be liable for payment of any legal services expenses incurred by Licensor Section 13 11 Duplicate Original The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall irrespective of the date of its execution and delivery be deemed an original Each duplicate ouginal shall be deemed an original instrument as against any party who signed it ARTICLE XIV SUBORDINATION This Agreement shall be subject and subordinate at all times to the hen of any mortgage, which may now or hereafter affect the Licensed Area Licensee will execute and deliver any instrument which may be required by Licensor in confirmation of such subordination promptly upon the request of the Licensor If the Licensee shall fail at any time to execute, acknowledge 10 166 and deliver any such instrument Licensor in addition to any other remedies available to it may execute acknowledge and deliver the same as attorney in-fact of the Licensee and in the Licensee's name place and stead, and the Licensee hereby irrevocably makes, constitutes and appoints Licensor its successor and assigns, such attorney in-fact for that purpose ARTICLE XV ALTERATIONS AND ADDITIONS Section 15 1 Licensee shall obtain Licensors prior written consent for alterations impiovements additions, utility installations or repairs in on or about the Licensed Area, or the Center which are (1) structural in nature, or (a) non-structural in nature and exceed a total cost of Five Thousand Dollars ($5,000 00) per alteration/addition Licensor may give or withhold its consent to any structural alterations, improvements, additions Utility installations or repairs in its sole and absolute discretion As used in thus Section 15 1 the term "Utility Installation" shall mean carpeting, window and wall coverings, power panels, electrical distribution systems lighting fixtures air conditioning, plumbing, and telephone and telecommunication wiring and equipment Licensor may require Licensee to remove said alterations, improvements, additions or Utility Installations at the expiration of the term to restore the Licensed Area and the Center to their prior condition at Licensee's expense Should Licensor permit Licensee to make its own alterations, improvements additions, or Utility Installations Licensee shall use only such contractor as has been expressly approved by Licensor Should Licensee make any alterations improvements, additions or Utility Installations without the prior approval of Licensor or use a contractor not expressly approved by Licensor, Licensor may, at any time during the term of the Lease, require that Licensee remove any part or all of the same Section 15 2 Any alterations, improvements, additions or Utility Installations in or about the Licensed Area or the Center that Licensee shall desire to make which are (i) structural in nature, or (n) non-structural in nature and exceed a total cost of Five Thousand Dollars ($5,000 00) per alteration/addition shall be presented to Licensor in written form, with proposed detailed plans Licensee shall reimburse Licensor as additional rent for Licensor's actual costs in reviewing any pioposed plans whether or not Licensor s consent thereto is given If Licensor shall give its consent to Licensee's making such alteration improvement, addition or Utility Installation, the consent shall be deemed conditioned upon Licensee acquiring a permit to do so from the applicable government agencies furnishing a copy thereof to Licensor prior to the commencement of the work, and compliance by Licensee with all conditions of said pernnt in a prompt and expeditious manner Licensor s approval of plans, specifications and working drawings for Licensee s alterations improvements, additions or Utility Installations shall create no responsibility or liability on the part of Licensor for their completeness, design, sufficiency or compliance with all laws, rules and regulations of governmental agencies or authorities Section 15 3 Licensee shall pay when due, all claims for labor or materials furnished or alleged to have been furnished to or for Licensee at or for use in the Licensed Area which claims are or may be secured by any mechanic's or materialmen s lien against the Licensed Area the or the Centert or any interest therein Section 15 4 Licensee shall give Licensor not less than ten (10) days notice prior to the ll 167 commencement of any work in the Licensed Area by Licensee, and Licensoi shall have the right to post notices of non-responsibility in or on the Licensed Area or the Center as provided by law If Licensee shall, in good faith contest the validity of any such hen claim or demand, then Licensee shall at its sole expense, defend itself and Licensor against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof against Licensor or the Licensed Area, or the Center, upon the condition that if Licensor shall require Licensee shall furnish to Licensor a surety bond satisfactory to Licensor in an amount equal to such contested lien or claim or demand indemnifying Licensor against liability for the same and holding the Licensed Area and the Center free from the effect of such lien or claim In addition, Licensor may require Licensee to pay Licensor's reasonable attorneys' fees and costs in participating in such action if Licensor shall decide it is to Licensor's best interest to do so Section 15 5 All alterations, improvements, additions and Utility Installations, which may be made to the Licensed Area by Licensee including but not limited to, floor coverings paneling doors, drapes, built-ins, moldings sound attenuation, and lighting and telephone or communication systems conduit, wiring and outlets, shall be made and done in a good workmanlike manner and of good and sufficient quality and materials and shall be the property of Licensor and remain upon and be surrendered with the Licensed Area at the expiration of the Lease term, unless Licensor requires their removal pursuant to Section 15 1 Provided Licensee is not in default notwithstanding the piovisions of this Section 15 5 Licensees personal property and equipment, other than that which is affixed to the Licensed Area so that it cannot be removed without material damage to the Licensed Area or the Center, and other than Utility installations, shall remain the property of Licensee and may be removed by Licensee subject to the provisions of Section 1 2 Section 15 6 Licensee shall provide Licensor with as-built plans and specifications for any alterations, imptovements, additions or Utility installations ARTICLE XVI SECURITY DEPOSIT AND TEFUMINATiON Section 16 1 —Licensor and Licensee agree there shall be no security deposit associated With or required by this Agreement Section 16 2—Upon termination of this License for any reason whatsoever, Licensee shall restore the Licensed Area to its condition immediately preceding the term of this License ARTICLE XVH COMPLIANCE WITH OWNER PARTICIPATION AGREEMENT (OPA) Licensee hereby acknowledges and agrees to be bound by, Sections 50 t-505 of the OPA By and Between the Redevelopment Agency of the City of Huntington Beach and Huntington Center Associates I.LC, as well as the agreement containing covenants affecting real property filed with the Orange County Clerk Recorder s office as Document No 2005-000643199 12 168 ARTICLE XVIII LICENSEE'S CONTRACT ADMINISTRATOR Licensee s Director of Economic Development, or his / her designee, shall be Licensee s Contract Administrator for this Agreement with the authority to act on behalf of Licensee for the purposes of this Agreement, and all Licensee approvals and notices required to be given herem to Licensee shall be so directed and addressed IN WITNESS WHEREOF the parties have cause the proper execution of this Agreement as of the date set forth above LICENSOR BELLA TERRA ASSOCIATES LLC, a Delaware limited liability company By Z- l Its V t c 2 )^Left ty Date 3 -7 —OFF LICENSEE City of Huntington Beach a- municipal corporation of the State of California. Mayor :y City Clerk ff APP .D AS TO FORM VV1 C1ty Att ey -UNIT-a, * 0(p INITIATED AND APPROVED �7 Director of Fconomibl Development REVIEWED AND APPROVED 13 169 lity Admi istrator 14 170 EXHIBIT "A" Licensed Area 1it I I I � 7- ,r. _ e _ F -itTV — _ 1 O - 7 1 III it ' IL O — 0— O O O 3 V BI.QD'AO P.WINL fT61 fiDCA i1JJ1 1 Iw u an rimn w Ivrt wur n e c mw - m w. Al0 Light shaded area= Licensed Area Darker shaded area=Adjacent Conference Room 15 171 ATTACHMENT #2::]l A il-ot &AIN4,7 i 2006 MAR —9 P11 1 33 Council/Agency Meeting Held �t Cli y Or Deferred/Continued to HU€v7(r1G`f01 B ACH Approved ❑ Conditionally Approved ❑ Denied I Cl s Si ature Council Meeting Date 3/20/2006 Department ID Number ED 06-15 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO HONORABLE MAYOR AND CQWNCIL MEMBERS SUBMITTED BY PENELO EE CCULBRETH-GRAFT CI Y ADMINISTRATOR PREPARED BY KENNETH W SMALL CHIEF OF POLICE 04A6'rld4(.& STANLEY SMALEWITZ DIRECTOR OF ECONOMIC DEVELOPMENT SUBJECT APPROVAL OF LICENSE AGREEMENT FOR BELLA TERRA POLICE SUBSTATION AT 7777 EDINGER AVENUE SUITE D-135 FSt71t1_1_.t1f Issue Funding Source Recommended Action Alternative Action(s) Analysis Environmental Status Attachment(s) Statement of Issue The City Council is requested to approve a ten-year license agreement with Bella Terra Associates, LLC for the use of real property located at 7777 Edinger Avenue Suite D-135 for use by the Police Department for the new Bella Terra Substation Funding Source Not Applicable Recommended Action Motion to 1 Approve the lease agreement by and between the City of Huntington Beach and Bella Terra Associates LLC for the use of real property located at 7777 Edinger Avenue Suite D-135 for use by the Police Department for the Bella Terra Substation 2 Authorize execution of the lease agreement by the Mayor and City Clerk Alternative Action(s) No alternatives to the proposed license agreement were considered Analysis A license agreement between the City and Bella Terra Associates Inc for a police substation at the new Bella Terra Mall is submitted for approval The mall owners have made available approximately 2 030 square feet of office space to the City for use by the Police Department at no cost The City will only pay for its own telephone and cleaning services The term of the agreement is ten years however the City will have the ability to terminate the agreement at any time upon 30 days written notice REQUEST FOR ACTION MEETING DATE March 20, 2006 DEPARTMENT ID NUMBER ED 06-15 The Police Department has determined that operating a substation at Bella Terra will allow for a more substantial presence in the complex and the surrounding neighborhood, which would decrease response times and allow officers to stay in a more centralized area when processing paperwork and other routine assignments The Department is currently considering basing two full-time officers to operate the substation Thursday through Sunday Volunteers are anticipated to staff the reception area during business hours Monday through Friday Staff recommends approval of the proposed license agreement which has been reviewed and approved by the City Attorney Environmental Status Not applicable Attachment(s) City Clerk's Page Number No. Description 1 Lease agreement by and between the City of Huntington Beach and Bella Terra Associates LLC for the use of real property located at 7777 Edinger Avenue Suite D-135 2 Site Map G\Steve\Real Estate\Police\RCA for Bella Terra Substation Lease doc 2 3/7/2006 9 03 AM Lease agreement by and between the City of Huntington Beach and Bella Terra Associates, LLC for the use of real property located at 7777 Edinger Avenue, Suite D-135 LICENSE AGREEMENT This License Agreement ('Agreement')is made this djC� day of March 2006 by and between Bella Terra Associates, LLC,a Delaware limited liability company ("Licensor"), and the City of Huntington Beach('Licensee") RECITALS WHEREAS Licensor owns and operates the Bella Terra Shopping Center('Center") located at 7777 Edinger Avenue,Huntington Beach, California, WHEREAS Licensee desires to occupy a portion of Suite D-135 located in the Management Office/Secunty Offices located in the Center as shown on the attached Exhibit A, consisting of approximately 2,030 square feet(hereinafter referred to as the 'Licensed Area") for purposes of operating a City of Huntington Beach Police Substation and WHEREAS Licensor is willing to grant Licensee use of the Licensed Area subject to the terms and provisions of this Agreement, NOW, THEREFORE, Licensor hereby grants and Licensee hereby accepts a revocable license to operate at the Licensed Area, subject to the terms and provisions hereinafter set forth ARTICLE I LICENSED AREA AND USE THEREOF Section 1 1 Licensor hereby grants to Licensee and Licensee hereby accepts from Licensor a License to use the Licensed Area of the Centei The Licensed Area shall be used solely for operation of a City of Huntington Beach Police Substation Licensee shall have the right,but not the obligation to operate in Licensed Area 365 days per year, 24 hours per day Section 12 The Licensed Area shall be equipped set up and maintained at the sole expense of Licensee Licensor agrees to furnish to the Licensed Area electricity water gas, trash service, internet access, and sewer service and deliver the Licensed Area to Licensee equipped with these services Licensee accepts the Licensed Area in its current"as-is" condition Subject to the provisions of Article XV below,Licensee shall have the right during the term of this Agreement to make, at its own expense, any interior, cosmetic alterations or improvements to the Licensed Area Licensee at Licensee's cost, shall repair any damage to the Licensed Area caused by Licensee or Licensee s conti actors during performance of such alterations or improvements in or on the Licensed Area Licensee shall have the right to install satellite dishes and/or other antennas and/or other facilities for television, music and telecommunications ( Communication Equipment') on, and affix Communication Equipment to on or about the Licensed Area Any satellite dishes of antennas on the roof shall be properly screened to Licensor's satisfaction Licensee s use of the Licensed Area shall be exclusive for the term specified herein and not violate applicable laws and ordinances All such work shall be performed in a first class manner and shall comply with all laws and regulations Section 13 Licensor and Licensee acknowledge and agree that 1 (a) Neither the Licensed Area, nor any other space or area whatsoever at the Center is leased to the Licensee During the term of this Agreement, the Licensee shall have the use of the Licensed Area as Licensee solely for the purposes and uses herein stated The Licensee shall have the right to occupy the Licensed Area and to operate pursuant to the License hereby granted and to continue in the possession thereof only so long Licensee is in compliance with the terms and conditions of this Agreement (b) Licensee shall use the Licensed Area solely for the purpose stated in Section 11, and for no other purposes whatsoever (c) Licensee shall in no way interfere with nor jeopardize the business or reputation of the Property (d) Licensee acknowledges that neither the Licensor nor its personnel will have any responsibility for the operation of the Licensed Area Licensee's operations therein or any other aspect of Licensee's operations Licensee shall indemnify and hold harmless Licensor(its officers,principals and employees),its Landlord and mortgagee(hereinafter referred to collectively as the additional insureds') against any claims, costs or liabilities related to or arising out of Licensee's use of the Licensed Area or Licensee s obligation under this Agreement Licensee shall provide insurance as specified in Article IV of this Agreement and name the additional insureds on these insurance policies as their interests may appear Licensee further agrees to provide its employees within all required coverage, including without limitation workmen s compensation insurance Licensee shall pay all costs incurred with respect to the insurance coverage provided by Licensee under this Agreement (e) Licensee has not relied upon any representation statement or warranty of Licensor or of Licensor s agents or employees with respect to the Licensed Area, the Center or the business to be conducted thereat, and in no event shall Licensor be liable to Licensee for any defect in the Licensed Area or for any limitation on its use (except to the extent of Licensor s or Licensor's agents gross negligence or willful misconduct) and Licensee accepts the same "AS IS WHERE IS (f) Signs and Decor All signage and decor to be placed on the exterior of Licensed Area by Licensee shall be manufactured and displayed in accordance with the Sign Criteria Program developed by Licensor, as the same may change from time to time (g) Grant of Nonexclusive Common Area Rights Licensor hereby grants to Licensee its patrons, employees, and authorized representatives a nonexclusive right to use the Common Area within the Center for vehicular parking and for pedestrian and vehicular ingress, egress and travel and restroom access Licensor shall provide Licensee with two dedicated parking spaces in the service yard at the nearest possible location to the Licensed area or at a location mutually agreeable to both Licensor and Licensee 2 ARTICLE II TERM Section 2 1 The term of this Agreement herein granted shall commence as of pAAe# dp_ apLbfbr a TEN(10)year term which shall expire on ,unless sooner extended or terminated as specifically provided herein Section 2 2 Notwithstanding the foregoing, Licensee shall have the right to terminate the term of this Agreement without any further obligations or liability hereunder upon not less than thirty(30)days' prior written notice of such election Licensor shall have the right to terminate the term of this Agreement without any further obligations or liability hereunder upon not less than sixty(60) days' prior written notice of such election Section 2 3 This Agreement may be extended at any time by mutual consent of the parties subject to the terms herein ARTICLE III LICENSEE FEE Section 3 1 There shall be no license fee associated with or required by this License Agreement ARTICLE IV INSURANCE Section 4 1 Insurance Licensee shall at all times during the term of this Agreement and at its own cost and expense maintain,procure and continue in force commercial general liability insurance for personal injury bodily injury (including wrongful death) and damage to property with a combined single limit of not less than Two Million and No/100 Dollars ($2,000,000 000)pei occurrence naming Licensor as an additional insured Certificates of Insurance evidencing the required insurance coverage shall be delivered to Licensor prior to Licensee's occupancy of the Licensed Area and thereafter executed copies of renewal policies or certificates thereof shall be delivered to Licensor within thirty (30) days prior to the expiration of the term of each such policy All policies on insurance delivered to Licensor must contain a provision that the company writing the policy will give Licensor twenty (20)days notice in writing in advance of any cancellation or lapse or the effective date of any reduction in the amounts of insurance All policies shall be written as primary policies and shall provide that any insurance which Licensor or Licensor s lender may carry is strictly excess, secondary and non- contributing with any insurance carried by Licensee Licensee shall be permitted to carry the insurance required in this Agreement under a blanket policy which also covers other locations of the Licensee Notwithstanding the foregoing,the Licensee may provide liability insurance through the Big Independent Cities Excess Pool ("BICEP"),providing for a self insured retention in the amount applicable to all the members of BICEP(for calendar year 2006, such self insured retention amount is $1,000,000 with the member cities risk sharing any losses from S1,000,000 to $2,000,000 or larger) 3 Section 4 2 Indemnifications and Waivers (a) Indemnity To extent permitted by law, and except to the extent any such damage loss, claim, liability, or expense is attributable to the gross negligence or willful misconduct of Licensor its employees, authorized agents and representatives Licensee will at Licensee s sole cost and expense indemnify Licensor Parties against all Claims arising from (i) any Personal Injury, Bodily Injury or Property Damage whatsoever occurring in or at the Licensed Area, (ii) any Bodily Injury to an employee of a Licensee Party arising out of and in the course of employment of the employee and occurring anywhere in the Center (111)the use or occupancy or manner of use of occupancy, or conduct or management of the Licensed Area by Licensee (b) Waivers To the extent permitted by law,and except to the extent any such damage, loss, claim liability, or expense is attributable to the gross negligence or willful misconduct of Licensor, its employees, authorized agents and representatives, Licensee on behalf of all Licensee Parties,waives all Claims against Licensor Parties arising from the following (1) any Personal Injury, Bodily Injury or Property Damage whatsoever occurring in or at the Licensed Area (ii) any loss of or damage to property of a Licensee Party located in the Licensed Area or other part of the Center by theft or otherwise, (iii) any Personal Injury Bodily Injury or Property Damage to any Licensee Party caused by other tenants of the Center parties not occupying space in the Center, occupants of property adjacent to the Center, or the public or by the construction of any private public or quasi-public work occurring either in the Licensed Area or elsewhere in the Center (iv) any interruption or stoppage of any utility service or for any damage to persons or property resulting from such stoppage, (v)business interruption or loss of use of the Licensed Area suffered by Licensee (vi) any latent defect in construction of the Center (vii)damages or injuries or interference with Licensee's business loss of occupancy or quiet enjoyment and any other loss resulting from the exercise by Licensor of any right or the performance by Licensor of Licensor's maintenance or other obligations under this Agreement or(viii) any Bodily Injury to an employee of a Licensee Party arising out of and in the course of employment of the employee and occurring anywhere in the Center (c) Licensor shall protect, defend,indemmfy and hold harmless Licensee,its officers officials, employees and agents from and against any and all liability loss damage expenses, costs (including without limitation costs and fees of litigation of every nature)arising out of or in connection with Licensor's performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement except such loss or damage which was caused by the negligence or willful misconduct of the Licensee (d) Waivers of Subrogation Licensor and Licensee each hereby waive all rights of recovery against the other on account of loss and damage occasioned to such waiving party to the extent that such loss or damage is insured against under any insurance policies carried by the waiving party Licensor and Licensee shall each cause their insurers to waive their subrogation rights consistent with the foregoing (e) Definitions For purposes of this Paragraph 9 (1)the term `Licensee Parties' means Licensee, and Licensee s officers members partners agents employees, subLicensees, licensees, invitees and independent contractors and all persons and entities 4 03/07/2006 14 43 FAX 714 374 1580 CITY OF HUNT BEACH 002/002 claiming through any of these persons or entities,(i►)the term"Licensor Parties"means Licensor and the partners,venturerer,trustees and ancillary trustees of Licensor and the respective officers,directors shareholders,members,parents, subsidiaries and any other affiliated entities,personal representatives,executors,heirs,assigns licensees,invites, beneficiaries,agents,servants employees and independent contractors of these persons or entities,(in)the term"Indemnify"means indemnify,defend(with counsel reasonably acceptable to Licensor)and hold free and harmless for,from and against, (iv)the term `Claims" means all lnabnUnttes,claims,damages(including consequential damages),losses,penalties, litigation,demands,causes of action(whether in tort or contract,in law or at equity or otherwise),swts proceedings,judgments,disbursements charges,assessments and expenses (including attorneys and experts' fees and expenses incurred in investigating defending,or prosecuting any litigation,claim,or proceeding),(v)the term 'Waivers"means that the Licensee Parties waive and knowingly and voluntarily assume the risk of and(va)the term "Bodily Injury","Personal Injury and"Property Damage will have the same meanings as in the form of commercial general insurance policy issued by Insurance Services Office, Inc most recently prior to the date of the injury or loss in question ARTICLE V TAXES AND OTHER CHARGES Section 51 Licensee shall pay and discharge when due and prior to the imposition of any interest or penalty for delinquency in payment,all taxes,fees,or assessments imposed upon the operation of the Licensee s use of the Licensed Area. Notwithstanding the foregoing, Licensee shall not be obligated to pay any taxes,charges or assessments applicable to Licensor s collection of the License Fee or with respect to Licensor s ownership of the Center Section S 2 If requested by Licensor,Licensee shall furnish to Licensor a receipt or other evidence of the payment of each tax,assessment or imposition, or any such other charge which is payable by Licensee within five(5)business days of such request Section 53 Licensee shall provide for and maintain its own secure telecommunications and data line equipment within the leased premises, and shall be responsible for the cost of maintaining these designated utilities Licensee shall also provide for and maintain a cleaning service for the leased premises,and shall be responsible for the cost of thus service Licensor shall manitain and provide payment for all other utilities associated with the leased premises,including but not limited to,electrical,gas,water,sewer and trash services and shall pay all common arear amtenance costs(CAM costs) including taxes insurance and anagement fees Lncens r shall not pay any additional rent or CAM costs Licensee shall not b���' bc responsible for any utilities serving the Common Areas of the Property T13 S1.110to Section 5 4 Licensee shall,during the Term of this Agreement,keep the Licensed Area in neat and clean condition subject to Licensor s obligations 5 claiming through any of these persons or entities, (ii)the term `Licensor Parties"means Licensor and the partners venturerer trustees and ancillary trustees of Licensor and the respective officers, directors shareholders,members, parents, subsidiaries and any other affiliated entities,personal representatives executors,heirs assigns licensees, invites, beneficiaries, agents, servants,employees and independent contractors of these persons or entities, (tin)the term `Indemnify means indemnify defend (with counsel reasonably acceptable to Licensor) and hold free and harmless for from and against (iv) the term'Claims' means all liabilities, claims damages(including consequential damages) losses,penalties, litigation,demands, causes of action (whether in tort or contract, in law or at equity or otherwise), suits, proceedings,judgments,disbursements, charges, assessments and expenses (including attorneys and experts' fees and expenses incurred in investigating, defending, or prosecuting any litigation, claim, or proceeding), (v)the term "Waivers"means that the Licensee Parties waive and knowingly and voluntarily assume the risk of and (vt)the term `Bodily Injury "Personal Injury"and 'Property Damage"will have the same meanings as to the form of commercial general insurance policy issued by Insurance Services Office, Inc most recently prior to the date of the injury or loss in question ARTICLE V TAXES AND OTHER CHARGES Section 5 1 Licensee shall pay and discharge when due and prior to the imposition of any interest or penalty for delinquency in payment all taxes, fees, or assessments imposed upon the operation of the Licensee's use of the Licensed Area Notwithstanding the foregoing Licensee shall not be obligated to pay any taxes charges or assessments applicable to Licensor's collection of the License Fee or with respect to Licensor s ownership of the Center Section 5 2 If requested by Licensor, Licensee shall furnish to Licensor a receipt or other evidence of the payment of each tax,assessment or imposition, or any such other charge which is payable by Licensee, within five (5)business days of such request Section 5 3 Licensee shall provide for and maintain its own secure telecommunications and data line equipment within the leased premises and shall be responsible for the cost of maintaining these designated utilities Licensee shall also provide for and maintain a cleaning service for the leased premises and shall be responsible for the cost of this service Licensor shall maintain and provide payment for all other utilities associated with the leased premises, including but not limited to,electrical gas, water, sewer and trash services,and shall pay all common area maintenance costs (CAM costs) including taxes,insurance, and management fees Licenser shall not pay any additional rent or CAM costs Licensee shall not be responsible for any utilities serving the Common Areas of the Property TLS -shloto Section 5 4 Licensee shall during the Term of this Agreement, keep the Licensed Area in neat and clean condition subject to Licensor s obligations 5 ARTICLE VI EVENTS OF DEFAULT AND REMEDIES ON DEFAULT Section 6 1 Any of the following occurrences or acts shall constitute an `Event of Default under this Agreement (a) If Licensee shall (i) default in making payment when due of the License Fee and such default shall continue twenty(20)business days of notice of non payment (but notwithstanding, no notice or 20 day cure period shall apply more than one time during the term of this Agreement), or (it) default in making payment when due of any other amount payable by Licensee hereunder and such default shall continue twenty(20)business days of notice of non payment(but notwithstanding no notice or 20 day cure period shall apply more than one time during the term of this Agreement), or (m) default in the observance or performance of anv other provision of this Agreement to be observed or performed by Licensee hereunder or (b) The suspension revocation or expiration of any of the Licensee's licenses required to conduct its business at the Licensed Area, of (c) Licensee shall file a petition in bankruptcy or for reorganization or for an arrangement pursuant to the Bankruptcy Act or under any similar federal or state law now or hereafter in effect, or shall be adjudicated a bankrupt or become insolvent, of shall make an assignment for the benefit of its creditors, or shall admit in writing of its inability to pay its debts as they become due, or shall be dissolved or shall suspend payment of its obligations, or shall take any corporate action for the purpose of effecting any of the foregoing Section 6 2 Except with respect to Section 6 1(a)(1) and 6 1(a)(ii),whenever an Event of Default shall have occurred Licensor may, at its election, in its sole discretion,terminate this License upon ten (10) business days written notice to Licensee whereupon all rights of Licensee to the use of the Licensed Area shall forthwith terminate as though this License had never been made, and Licensor shall have the immediate right of possession of the Licensed Area and the right to remove all persons and property therefrom without liability to the Licensee whatsoever, and in addition shall have the right to recover forthwith from the Licensee any and all License Fees and all other amounts payable by Licensee hereunder which have become due as of the date the termination of this License Notwithstanding the foregoing,no Event of Default shall deem to have occurred if Licensee cures said Default prior to the expiration of the twenty(20) day notice period In the event of a Default under Section 6 1(a)(1) or 6 1(a)(ii), after the applicable cure period Licensor may, at its election in its sole discretion terminate this License with no further notice required to Licensee whereupon all rights of Licensee to the use of the Licensed Area shall forthwith terminate as though this License had never been made and Licensor shall have the immediate right of possession of the Licensed Area and the right to remove all persons and property therefrom without liability to the Licensee whatsoever and in addition shall have the right to recover forthwith from the Licensee any and all License Fees and all other amounts 6 payable by Licensee hereunder which have become due as of the date the termination of this License Section 6 3 The failure of the Licensor to insist upon a strict performance of any term or condition of this Agreement shall not be deemed a waiver of any right or remedy that the Licensor may have and shall not be deemed a waiver of any subsequent breach of such term or condition ARTICLE VII DAMAGE OR DESTRUCTION OF THE CENTER/EMINENT DOMAIN In the event of(material)damage to or destruction of the Center or to the Licensed Area, or in the event any (material) portion of the Center or Licensed Area shall be lawfully taken or condemned, either Licensee or Licensor shall have the right to terminate this Agreement as of the date of the damage or destruction or as of the taking(as the case may be)and upon such termination all License Fees shall be prorated and neither party shall thereafter have any rights or obligations thereafter accruing under this Agreement Licensee shall have no obligation with respect to any damage or destruction to the Licensed Area of the Center due to any casualty ARTICLE VIII ASSIGNMENT Section S 1 Licensee shall not assign this Agreement or any interest therein and shall not sublicense the Licensed Area or any part thereof without the prior written consent of Licensor at Licensor s sole and absolute discretion ARTICLE IX BINDING EFFECT, MERGER AND CONSOLIDATION, ENTIRE AGREEMENT Section 9 1 All the terms and provision contained in this Agreement shall be binding upon inure to the benefit of and be enforceable by, the successors and assigns of Licensor to the same extent as if each such successor or assign were named as part of this Agreement Section 9 2 This Agreement embodies the entire agreement between Licensor and Licensee relating to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter Neither this Agreement nor any provision hereof may be amended,modified, waived discharged or terminated orally but only as expressly provided herein or by an instrument signed by Licensor and Licensee Section 9 3 As used in this Agreement and whenever required by the context thereof, each number both singular and plural shall include all numbers and each gender shall include all genders Licensor and Licensee as used in this Agreement or in any other instrument referred to in or made a part of this Agreement shall likewise include both the singular and the plural, a corporation co partnership, individual or person acting in any fiduciary capacity as executor, administrator trustee or in any other representative capacity All covenants herein contained on the part of Licensor and Licensee shall be joint and several The language of all parts of this Agreement shall in all cases be construed as a whole according to its fair meaning, and not strictly for or against any of the pasties If any provision of this Agreement is held by an 7 arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid,such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement No covenant or provision shall be deemed dependent upon any other unless so expressly provided here Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law ARTICLE X NOTICES Section 10 1 All Notices must be in writing and shall be deemed to have been properly given or served by depositing in the United States Mail,postpaid and registered or certified return receipt requested, or sent by overnight delivery service, and addressed to the addresses set forth below All Notices shall be effective upon being deposited in the United States Mail However,the time period in which a response to any Notice must be given, if any, shall commence to run from the date of receipt of the Notice by the addressee thereof Rejection or other refusal to accept or the inability to deliver because of a changed address of which no Notice was given shall be deemed to be receipt of the Notice sent By giving at least five(5) days Notice thereof either party shall have the right to specify as its address any other address within the United States of America Licensor s Address Bella Terra Associates, LLC c/o DJM Capital Partners 60 S Market Street, Suite 1120 San Jose, CA 95113 a36 408-271-0366 408-271 0377—Fax Tax ID#20-2921485 Licensee's Address City of Huntington Beach ATTN Chief of Police 2000 Main Street P O Box 190 Huntington Beach CA 92648 With copy to City of Huntington Beach Real Estate Services ATTN Steve Holtz 2000 Main Street Huntington Beach, CA 92648 8 ARTICLE XI CONTROVERSY Section 111 Any controversy arising under this Agreement which is not resolved by the parties hereto shall be determined in and by the courts of the Sate of California, in accordance with the laws of the State of California ARTICLE XII COMPLIANCE Section 12 1 Licensee agrees at its own cost and expense to promptly execute and comply with all present or future rules, regulations, requirements laws and ordinances of all governmental authorities having jurisdiction of the Licensed Area or the business of Licensee thereat, and to obtain all licenses and/or permits required to conduct the business of Licensee at the Licensed Area Notwithstanding the foregoing, Licensor shall not be responsible for any alterations or additions to the Licensed Area required by applicable laws and/or ordinances ARTICLE XIII MISCELLANEOUS Section 13 1 Nothing contained herein nor this Agreement shall be construed nor is it the intent of the parties to create a joint venture or partnership between Licensor and Licensee Section 13 2 This Agreement is not to be recorded If this provision is breached any such recording shall be deemed null and void Section 13 3 If any provision of this Agreement or the application thereof to any person or in any circumstances shall be determined to be invalid, unlawful or unenforceable to any extent,then the remainder of this Agreement, and the application of such provisions other than the ones deemed invalid unenforceable or unlawful shall not be affected thereby and each remaining provision hereof shall continue to be valid and may be enforced to the fullest extent permitted by law Section 13 4 Nondiscrimination Licensee covenants by and for itself, its successors and assigns, and all persons claiming under or through it and this Agreement is made and accepted upon and subject to the following conditions That there shall be no discrimination against or segregation of any person or group of persons on account of sex marital status,race, color religion creed, national origin or ancestry, in the leasing, subleasing, transferring,use,or enjoyment of the Property nor shall Licensee itself, or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection location number use or occupancy of tenants Licensees, subLicensees, subtenants or vendees in the Center Section 13 5 Holding Over If Licensee continues to occupy the Licensed Area following the expiration or termination of this Agreement, such holding over shall constitute renewal of this License on a month to month basis,with License Fee payable for each month equal to 125%of the License Fee payable during the original term The License Term may 9 thereafter be terminable by either party upon one month s notice and otherwise on the terms of this Agreement Section 13 6 Authority Each signatory to this Agreement represents and warrants that (i)he or she is duly authorized to execute and deliver this Agreement on behalf of such entity in accordance with its corporate bylaws statement of partnership or certificate of limited partnership as the case may be, (n)this Agreement is binding upon said entity in accordance with its terms and (ui)the entity is a duly organized and legally existing corporation or partnership in good standing in the State of California Section 13 7 Attorneys' Fees In the event that any action shall be instituted by either of the parties to this Agreement(or their successors) for the enforcement of any of their rights in and under this Agreement, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the non prevailing party Section 13 S Conference Room Licensee and Licensor agree to share the Conference Room adjacent to the Licensed Area, and identified on Exhibit A on a first come first served basis pursuant to rules and procedures reasonably determined by Licensor This conference room shall not house any City of Huntington Beach Police Department telecommunications equipment Section 13 9 Brokers Each party warrants to and for the benefit of the other that it has engaged no broker of finder and that no claims for brokerage commissions or finder's fees will arise in connection with the execution of this Agreement and each of the parties agrees to indemnify the other against, hold it harmless from all liabilities arising from any such claim (including, without limitation, the cost of attorney s fees in connection therewith) Section 13 10 Legal Services Subcontracting Prohibited Licensor and Licensee agree that Licensee is not liable for payment of any subcontractor work involving legal services and that such legal services are expressly outside the scope of services contemplated hereunder Licensor understands that pursuant to Huntington Beach City Charter Section 309,the City Attorney is the exclusive legal counsel for Licensee, and Licensee shall not be liable for payment of any legal services expenses incurred by Licensor Section 13 11 Duplicate Original The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall irrespective of the date of its execution and delivery be deemed an original Each duplicate original shall be deemed an original instrument as against any party who signed it ARTICLE XIV SUBORDINATION This Agreement shall be subject and subordinate at all times to the lien of any mortgage, which may now or hereafter affect the Licensed Area Licensee will execute and deliver any instrument which may be required by Licensor in confirmation of such subordination promptly upon the request of the Licensor If the Licensee shall fail at any time to execute, acknowledge 10 and deliver any such instrument Licensor in addition to any other remedies available to it may execute acknowledge and deliver the same as attorney in-fact of the Licensee and in the Licensee's name place and stead, and the Licensee hereby irrevocably makes, constitutes and appoints Licensor its successor and assigns, such attorney in-fact for that purpose ARTICLE XV ALTERATIONS AND ADDITIONS Section 15 1 Licensee shall obtain Licensors prior written consent for alterations improvements additions, utility installations or repairs in on or about the Licensed Area, or the Center which are (i) structural in nature, or (u) non-structural in nature and exceed a total cost of Five Thousand Dollars ($5,000 00) per alteration/addition Licensor may give or withhold its consent to any structural alterations, improvements, additions Utility Installations or repairs in its sole and absolute discretion As used in this Section 15 1 the term "Utility Installation" shall mean carpeting, window and wall coverings, power panels, electrical distribution systems lighting fixtures air conditioning, plumbing, and telephone and telecommunication wiring and equipment Licensor may require Licensee to remove said alterations, improvements, additions or Utility Installations at the expiration of the term to restore the Licensed Area and the Center to their prior condition at Licensee's expense Should Licensor permit Licensee to make its own alterations, improvements additions, or Utility Installations Licensee shall use only such contractor as has been expressly approved by Licensor Should Licensee make any alterations improvements, additions or Utility Installations without the prior approval of Licensor or use a contractor not expressly approved by Licensor, Licensor may, at any time during the term of the Lease,require that Licensee remove any part or all of the same Section 15 2 Any alterations, improvements, additions or Utility Installations in or about the Licensed Area or the Center that Licensee shall desire to make which are (i) structural in nature, or (ii) non-structural in nature and exceed a total cost of Five Thousand Dollars ($5,000 00) per alteration/addition shall be presented to Licensor in written form, with proposed detailed plans Licensee shall reimburse Licensor as additional rent for Licensor's actual costs in reviewing any proposed plans whether or not Licensor s consent thereto is given If Licensor shall give its consent to Licensee's making such alteration improvement, addition or Utility Installation, the consent shall be deemed conditioned upon Licensee acquiring a permit to do so from the applicable government agencies furnishing a copy thereof to Licensor prior to the commencement of the work, and compliance by Licensee with all conditions of said permit in a prompt and expeditious manner Licensors approval of plans, specifications and working drawings for Licensee s alterations improvements, additions or Utility Installations shall create no responsibility or liability on the part of Licensor for their completeness, design, sufficiency or compliance with all laws,rules and regulations of governmental agencies or authorities Section 15 3 Licensee shall pay when due, all claims for labor or materials furnished or alleged to have been furnished to or for Licensee at or for use in the Licensed Area which claims are or may be secured by any mechanic's or materialmen s lien against the Licensed Area the or the Centert or any interest therein Section 15 4 Licensee shall give Licensor not less than ten (10) days notice prior to the 11 commencement of any work in the Licensed Area by Licensee, and Licensoi shall have the right to post notices of non-responsibility in or on the Licensed Area or the Center as provided by law If Licensee shall, in good faith contest the validity of any such lien claim or demand, then Licensee shall at its sole expense, defend itself and Licensor against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof against Licensor or the Licensed Area, or the Center, upon the condition that if Licensor shall require Licensee shall furnish to Licensor a surety bond satisfactory to Licensor in an amount equal to such contested lien or claim or demand indemnifying Licensor against liability for the same and holding the Licensed Area and the Center free from the effect of such lien or claim In addition, Licensor may require Licensee to pay Licensor's reasonable attorneys' fees and costs in participating in such action if Licensor shall decide it is to Licensor's best interest to do so Section 15 5 All alterations, improvements, additions and Utility Installations, which may be made to the Licensed Area by Licensee including but not limited to, floor coverings paneling doors, drapes, built-ins, moldings sound attenuation, and lighting and telephone or communication systems conduit, wiring and outlets, shall be made and done in a good workmanlike manner and of good and sufficient quality and materials and shall be the property of Licensor and remain upon and be surrendered with the Licensed Area at the expiration of the Lease term, unless Licensor requires their removal pursuant to Section 15 1 Provided Licensee is not in default notwithstanding the piovrsrons of this Section 15 5 Licensee s personal property and equipment, other than that which is affixed to the Licensed Area so that it cannot be removed without material damage to the Licensed Area or the Center, and other than Utility Installations, shall remain the property of Licensee and may be removed by Licensee subject to the provisions of Section 1 2 Section 15 6 Licensee shall provide Licensor with as-built plans and specifications for any alterations, improvements, additions or Utility Installations ARTICLE XVI SECURITY DEPOSIT AND TERMINATION Section 16 1 —Licensor and Licensee agree there shall be no security deposit associated with or required by this Agreement Section 16 2—Upon termination of this License for any reason whatsoever,Licensee shall restore the Licensed Area to its condition immediately preceding the term of this License ARTICLE XVII COMPLIANCE WITH OWNER PARTICIPATION AGREEMENT (OPA) Licensee hereby acknowledges and agrees to be bound by, Sections 501-505 of the OPA By and Between the Redevelopment Agency of the City of Huntington Beach and Huntington Center Associates LLC, as well as the agreement containing covenants affecting real property filed with the Orange County Clerk Recorder s office as Document No 2005-000643199 12 ARTICLE XVIII LICENSEE'S CONTRACT ADMINISTRATOR Licensee s Director of Economic Development, or his / her designee, shall be Licensee s Contract Administrator for this Agreement with the authority to act on behalf of Licensee for the purposes of this Agreement, and all Licensee approvals and notices required to be given herem to Licensee shall be so directed and addressed IN WITNESS WHEREOF the parties have cause the proper execution of this Agreement as of the date set forth above LICENSOR BELLA TERRA ASSOCIATES LLC, a Delaware limited liability company By 2L=:, Its V( c e )q+-er c (L y--# Date 3 -7 -0 � LICENSEE City of Huntington Beach a- municipal f corporation of the State of California., Mayor r� U City Clerk a APP ED AS TO FORM V n V ,^ City Att ey -U 318 ate * d(p INITIATED AND APPROVED �7 Director of Economi Development REVIEWED AND APPROVED 13 fity Admi istrator 14 EXHIBIT"A" Licensed Area L ° Q o 4 o Q - Q 0- --�-- Q _ — I- - - - ro1-0 - I -'- � H o t I I m � D'BUILDING PARTIAL FIRST FLOOR PLAN r FA10 LOO LE END FLOOR PUN NOTE WALL TY E 6C EMLE KEYPLA Light shaded area=Licensed Area Darker shaded area=Adjacent Conference Room 15 Site Map ATTACHMENT #2 Site Map Bella Terra Police Substation 7777 Edinger Avenue, Suite D-135 Jj 3 �3Cw .� tut 1� 40 _fir—, �, � � � s •� �� .. � ��s Vella d R I Jt � F asp tit - v € ra' q. o 419 E + Rf RW9L9LL'�� 1 h3 � • � � fl �� '�.rfl 1 x. I 4 4 L igMA - ---- -- --- - - - I 110 I- - - I � rl O O D BUILDING PARTIAL FIRST FLOOR PLAN 1 m 3 LOOR EGEND LOOR UN OTES WALL TYPE SCHED LE El U A10 I Light shaded area = Licensed Area Darker shaded area = Adjacent Conference Room RESOLUTIONS OF THE BOARD OF DIRECTORS OF BELLA TERRA ASSOCIATES, LLC The Board of Directors of Bella Terra Associates LLC (the Company )hereby approves and adopts the resolutions set forth below and agrees that said resolutions shall have the same force and effect as if duly adopted at a meeting of the Company held for such purpose RESOLVED that the Company acquire that certain real estate project known as Bella Terra Shopping Center located at 7777 Edinger Avenue Huntington Beach California(the Property ) under and pursuant to that certain Purchase and Sale Agreement dated as of March 31 2005 by and between Huntington Center Associates LLC a Delaware limited liability company and DJM Acquisition Group LLC a California limited liability company as amended by that certain First Modification of Purchase Agreement dated as of April 19 2005 by and between Huntington Center Associates and DJM Acquisition Group LLC as further amended by that certain Second Modification of Purchase Agreement dated as of August 16 2005 by and between Huntington Center Associates and DJM Acquisition Group LLC and take an assignment of and perform under such Purchase and Sale Agreement as of the date hereof and RESOLVED that to finance the acquisition of the Property the Company borrow money by obtaining a first mortgage loan in the pnncipal amount of up to One Hundred Eighty Eight Million Dollars($188 000 000)(the First Mortgage Loan )and by obtaining with Bella Terra M Associates LLC a Delaware limited liability company ( Bella Terra M )a second mortgage loan in the principal amount of up to Twenty Three Million Dollars($23 000 000)(the Second Mortgage Loan and together with the First Mortgage Loan the Loans ) from GMAC Commercial Mortgage Corporation a Califorma corporation (the Lender ) the First Mortgage Loan to be secured by among other things a first mortgage lien on the Property and the Second Mortgage Loan to be secured by among other things a second mortgage lien on the Property and a first mortgage lien on that certain parcel of real property owned by Bella Terra M and more particularly desenbed as Parcel 5 of Parcel Map No 86 200 in the City of Huntington Beach County of Orange State of California as per Map recorded in Book 255 Pages 40 through 49 inclusive of Parcel Maps in the Office of the County Recorder of said County and RESOLVED that in connection with the actions authorized by the foregoing resolutions the Company shall cause the Authorized Signatory(as defined below)to execute acknowledge and deliver on behalf of the Company such documents instruments agreements or certificates and to pay any sums and take any other action as shall be necessary appropriate or desirable to consummate the transactions authorized by these resolutions and RESOLVED that each document instrument agreement or certificate executed by an Authorized Signatory(as defined below)to consummate the transactions LI3D/1522996 2 It 409111 2 BUSINESS authorized by these resolutions may be on such terms and conditions as are determined by the Authorized Signatory to be necessary appropriate or desirable and the Authorized Signatory s determination will be conclusively established by the Authorized Signatory s execution and delivery of the document instrument agreement or certificate and that D John Miller acting in his capacity as President of the Company Enc Sahn acting in his capacity as Vice President of the Company and Lindsay Parton acting in his capacity as Vice President of the Company are hereby named and approved as authorized signatones (each an Authonzed Si ng`atoff) and RESOLVED that each Authorized Signatory be and hereby is authorized to(a) sign execute certify to verify and acknowledge deliver accept file and record any and all instruments and documents and(b)take or cause to be taken any and all such action in the name and on behalf of the Company as in such Authorized Signatory s judgment is necessary desirable or appropriate in order to consummate the transactions contemplated by or otherwise to effect the purposes of the foregoing resolutions and RESOLVED that every action taken by the Company pnor Lo the date of these resolutions that would have been authonzed by these resolutions but for the fact that the action was taken prior to that date be and each hereby is ratified confinned and approved in all respects and that the transactions contemplated by the foregoing resolutions are reasonably expected to benefit the Company [Rest of page intentionally left blank] LB D/1522996 2 11409111 2 BUSINESS IN WITNESS WHEREOF the undersigned has executed these resolutions as of this J day of August 2005 D John Miller -L, PL" Eric Satin Oz4dL ( Y)r Lords Pa a Verll ons LIBD/I522986 2 RCA ROUTING SHEET INITIATING DEPARTMENT Economic Development & Police SUBJECT Approval of License Agreement for Bella Terra Police Substation at 7777 Edinger Avenue, Suite D-135 COUNCIL MEETING DATE March 20, 2006 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Resolution (w/exhibits & legislative draft if applicable) Attached ❑ Not Ap licable Tract Map Location Map and/or other Exhibits Attached Not Applicable ❑ Contract/Agreement (w/exhibits if applicable) AttachedNot Applicable El(Signed in full by the City Attorney) Subleases Third Party Agreements etc Attached ElNot Applicable (Approved as to form by City Attorney) Certificates of Insurance (Approved b the City Attorne Attached ❑ pproved y y y) Not Applicable ❑ Fiscal Impact Statement (Unbudget over $5 000) AttachedNot Applicable ❑ Bonds (If applicable) AttachedNot Applicable ❑ Staff Report (If applicable) AttachedNot Applicable Commission Board or Committee Report (If applicable) Attached ElNot Applicable Attached ElFindings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff ( ) Assistant City Administrator (Initial) ( ) ( ) City Administrator (Initial) ( ) ) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM Only)(Below Space For City Clerk's Use RCA Author STEVE HOLTZ (5901)/ MINDY JAMES (5425) CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK JOAN L FLYNN CITY CLERK March 23 2006 Bella Terra Associates LLC c/o DJM Capital Partners 60 S Market Street Suite 1120 San Jose CA 95113-2366 To Whom It May Concern Enclosed for your records is a copy of the License Agreement by and between the City of Huntington Beach and Bella Terra Associates LLC for the use of real property located at 7777 Edinger Avenue Suite D-135 Sincerely an L Flynn ity Clerk JF pe Enclosure Agreement G followup agrmt1tr (Telephone 714-536 5227)