HomeMy WebLinkAboutCostco Wholesale Corporation - BTDJM Phase II Associates, LLC - 2011-10-17Council/Agency Meeting Held:10
Deferred/Continued to:
%App ve ❑ Conditionally Approved ❑ Denied
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Council Meeting Date: October 17, 2011
Department ID Number: ED 11-47
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SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Manager
PREPARED BY: Bob Hall, Deputy City Manager
SUBJECT: Approve and authorize execution of a Parking License Agreement and
Covenant between Costco and the City of Huntington Beach - Bella
Terra Parking Structure
Statement of Issue: The City Council is asked to approve a Parking License Agreement
to allow Costco to utilize the parking structure for their patrons/employees as well as to
construct and maintain elevator and various improvements.
Financial Impact: No fiscal impacts.
Recommended Action: Motion to:
A) Approve the "Parking License Agreement and Covenant (City Parking Structure)" created
by and among Costco Wholesale Corporation, a Washington corporation, and City of
Huntington Beach, a California Charter City; and,
B) Authorize the Mayor and City Clerk to execute the Agreement and all related necessary
documents.
Alternative Action(s): Do not approve the Agreement and provide direction to staff.
HB -87- Item 9. - I
REQUEST FOR COUNCIL ACTION
MEETING DATE: 10/17/2011 DEPARTMENT ID NUMBER: ED 11-47
Analysis:
In 2003, the City of Huntington Beach created Community Facilities District 2003-1
(Huntington Center) and issued bonds to finance the construction of the Bella Terra Parking
Structure and other public improvements. The Community Facilities District (CFD) funded
the six -story, 1,400 parking space structure for public parking for the adjoining retail
businesses. The CFD is paid through annual assessments levied by the Bella Terra property
owner on the adjoining businesses.
As part of the approval of the Village at Bella Terra, which consists of a mixed -use project
including residential units and retail space, the utilization of the CFD parking structure was
approved as part of the conditions of the project. The use of the parking structure is for the
parking of Costco employees on the sixth floor and for parking structure improvements
(elevator and cart returns). The improvements will not impact the required parking spaces in
the parking structure.
To authorize the improvements to the parking structure, Costco will require ingress/egress to
the parking structure, ability to construct the elevator improvements, maintain the
improvements and pay associated utility costs through this Agreement.
The City's CFD bond counsel has reviewed and approved the Agreement.
Environmental Status: Project was reviewed through an approved Environmental Impact
Report and approved by the City Council and Planning Commission.
Strategic Plan Goal: Enhance Economic Development
Attachment(s):
1. I"Parking License Agreement and Covenant (City Parking Structure)" between
Costco and the Citv of Huntinaton Beach
Item 9. - 2 xB -88-
ATTACHMENT #1
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RECORDING REQUESTED BY
FIRST AMERICAN TITLE COMPANY
NATINAUSERVICES
COMMERCIAL�INDUSTIRIAL DIVISION
KICS-'A$c{5o i - Sc
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Costco Wholesale Corporation
999 Lake Drive
Issaquah, Washington 98027
Attn: Legal Department (SSK)
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
111111111111111111111111111111111111111111111111111111111111 69.00
2011000527963 03:46pm 10/21/11
66 422 Al2 22
0.00 0.00 0.00 0.00 63.00 0.00 0.00 0.00
(space above this line for Recorder's use only)
PARKING LICENSE AGREEMENT AND COVENANT
(City Parking Structure)
made by and among
Costco Wholesale Corporation, a Washington corporation,
and
City of Huntington Beach, a California charter city
Location of Property:
Huntington Beach, California
2583 5.0000115770689.2
PARKING LICENSE AGREEMENT AND COVENANT
(City Parking Structure)
This PARKING LICENSE AGREEMENT AND COVENANT ("Agreement") is made
and entered into as of the 1:7!3�1 day of ()cM,0&yL_ , 2011 (the "Effective Date"), by and
between the CITY OF HUNTINGTON BEACH, CALIFORNIA, a California charter city
("City"), and COSTCO WHOLESALE CORPORATION, a Washington corporation
("Costco").
RECITALS:
A. City is the fee owner of that certain parcel of real property located in the City of
Huntington Beach, County of Orange ("County"), State of California ("State") as more
particularly described on Exhibit "A" attached hereto (together with all improvements now or
hereafter located on such property) (the "Parking Parcel"), adjacent to that certain shopping
center commonly referred to as the "Bella Terra Mall," as more particularly described on
Exhibit "B" attached hereto (together with all improvements now or hereafter located on such
property, the "Retail Parcel'). The Parking Parcel is currently improved with a six -level
parking structure containing approximately 1,532 automobile parking spaces that is owned by
City and available for parking use by the general public.
B. The Public Parking Structure, defined herein, was financed with a portion of the
proceeds of Community Facilities District No. 2003-1 of the City of Huntington Beach
(Huntington Center) 2004 Special Tax Bonds (the "Special Tax Bonds") which Special Tax
Bonds were issued so that interest paid thereon is exempt from gross income for federal income
tax purposes.
C. Costco is the leasehold owner and has a right to purchase that certain parcel of
real property located adjacent to the Parking Parcel, and more particularly described on
Exhibit "C" attached hereto (together with all improvements now or hereafter located on such
property, the "Costco Parcel'). Costco intends to construct certain buildings and improvements
on the Costco Parcel and operate a Costco wholesale warehouse club thereon.
D. City and Costco desire to establish a parking license which allows for temporary
construction to improve the elevators which will benefit Costco and users of the Public Parking
Garage.
E. In addition to the terms defined in the foregoing Recitals, the following defined
terms, when used in this Agreement, shall have the meaning set forth below:
(i) "Developer" shall mean and refer to BTDJM Phase II Associates, LLC, a
Delaware limited liability company.
(ii) "Developer/City Parking Agreement" shall mean and refer to that
certain Parking and Reciprocal Easement Agreement and Option to Purchase, dated as of
March 1, 2004, made by and between City and Huntington Center Associates, LLC.
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25835.00001 \5770689.2
(iii) "Elevator System" means the elevator system located within the Parking
Parcel, including the "Revised Elevator System" as defined in Section 1 below.
(iv) "Improvements" shall mean and refer to any building or structure located
on the Parking Parcel.
(v) "Mortgage" shall mean and refer to any mortgage, indenture of mortgage,
deed of trust (whether fee or leasehold), sale and leaseback transaction or assignment and
subleaseback transaction which covers all or any portion of any Parcel, made by a reputable third
party bank or other institutional investor.
(vi) "Mortgagee" shall mean and refer to a mortgagee and/or a trustee and
beneficiary under a Mortgage and, to the extent applicable, a fee owner or lessor or sublessor of
any Parcel that is the subject of a sale and leaseback transaction or assignment and subleaseback
transaction.
(vii) "Operator" shall mean Bella Terra Associates, LLC, a Delaware limited
liability company, as successor -in -interest to Huntington Center Associates, LLC, or a successor
"Qualified Operator," as defined in the Developer/City Parking Agreement.
(viii) "Operating Agreement" shall mean that certain Operating Agreement
dated as of March 1, 2004, between City and Operator, pursuant to which Operator has
undertaken certain of the obligations of City.
(ix) "Parcel" or "Parcels", as the case may be, shall mean and refer to the
Parking Parcel or Costco Parcel, or either of them, as applicable.
(x) "Party" or "Parties", as the case may be, shall mean and refer to City and
Costco, or either of them, as applicable, and any party after the date hereof acquiring an interest
in or to the Parking Parcel and/or the Costco Parcel.
(xi) "Permittees" shall mean and refer to each Party, the tenants of each Party,
and their respective officers, directors, employees, agents, contractors, subcontractors,
customers, members, visitors, invitees, licensees, utility suppliers and concessionaires entering
such Parry's Parcel.
(xii) "Project" shall mean and refer to, collectively, the Parking Parcel, Public
Parking Structure, Retail Parcel and the Costco Parcel.
(xiii) "Public Parking Structure" shall mean the six -level parking structure
containing approximately 1,532 automobile parking spaces owned by City, including the
Revised Elevator System.
(xiv) "SCE Lease" shall mean and refer to that certain Lease, dated as of
March 15, 2004, made by and between Operator and Southern California Edison Company
("SCE"), relating to the lease of land located immediately adjacent to the Costco Parcel (the
"SCE Land") for use as a parking area and driveways for the Costco Parcel and that certain
Sublease Agreement by and between Developer and Costco.
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25835.00001 \5770689.2
(xv) "Utility Facilities" shall mean and refer to all utility and service lines and
systems serving a Parcel or portions thereof, including sewers; ejector pumps; water pipes and
systems; intake and exhaust vents; gas pipes and systems; sprinkler pipes and systems; drainage
lines and systems; electrical power conduits, lines and wires; energy transfer stations and
substations; chillers; transformers; electrical panels; vaults; cable television lines; microwave
communication systems; telephone conduits, lines and wires; security lines and systems; any
utilities required for teleconferencing facilities; and other service or utility lines necessary or
convenient to operate such Parcel.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, City and Costco hereby agree as follows:
1. CONSTRUCTION LICENSE. City hereby grants to Costco for the use by
Costco and its Permittees a temporary non-exclusive ingress, egress and general access license
(the "Construction License"), appurtenant to and for the benefit of the Costco Parcel over,
beneath and across the Parking Parcel and the Public Parking Structure for the purpose of
(a) constructing and installing a revised elevator system within the Public Parking Structure (the
"Revised Elevator System"), including, without limitation, all foundations, footings, columns,
floors, Utility Facilities, directional signs, hardware, painting, striping, lighting, cart corrals and
other improvements comprising the Revised Elevator System (all of which construction shall
comply with the provisions of Section 3 below), (b) vehicular and pedestrian ingress, egress and
access by Costco and its Permittees for purposes of such construction, (c) parking of vehicles in
connection with the construction and project management of the construction of the Revised
Elevator System, (d) if applicable, performing the maintenance, repair and reconstruction
obligations of City to the Elevator System as contemplated hereunder, if City fails to do so, and
(e) performing the maintenance, repair and reconstruction obligations of Costco related to the
Revised Elevator System as permitted herein. The Construction License (other than the rights in
clauses (d) and (e), which shall survive completion of the Revised Elevator System shall
terminate upon completion of the Revised Elevator System (as determined by the issuance by
City (acting in its governmental capacity) of a final certificate of occupancy for the Revised
Elevator System and delivery to and acceptance by City (in its proprietary capacity) of the
Revised Elevator System). Conceptual plans will be delivered separately to the City for
approval. The rights in clauses (d) and (e) shall survive the completion of the Revised Elevator
System and shall be exercised in the same manner as Section 7 of the Developer/City Parking
Agreement.
2. LICENSE FOR INGRESS AND EGRESS. City hereby grants to Costco for the
use by Costco and its Permittees a license for non-exclusive ingress, egress and general access
(the "Costco Access License"), for the purpose of providing vehicular and pedestrian ingress
and egress to and from the Parking Parcel and all levels of the Public Parking Structure to and
from the Costco Parcel in the same manner as members of the general public.
3. CONSTRUCTION OF REVISED ELEVATOR SYSTEM.
(a) Costco to Obtain Permits. Costco may cause the Revised Elevator System
to be constructed within the Public Parking Structure and in such case shall obtain all necessary
permits, entitlements and other authorizations from City (acting in its governmental capacity)
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and any other governmental entity maintaining jurisdiction over the Parking Parcel permitting
Costco to construct the Revised Elevator System. In constructing the Revised Elevator System,
Costco shall comply with all applicable City ordinances, codes, rules, regulations and applicable
conditions of approval to the entitlements for the Revised Elevator System. City shall have the
right to review plans and specifications of the Revised Elevator System, and shall have the right
to inspect Revised Elevator System during and after construction thereof and prior to acceptance
by the City of the Revised Elevator System. The review of any such plans and specifications
shall not constitute the assumption of any responsibility by, or impose any liability upon, City as
to the accuracy, efficacy, sufficiency or legality thereof.
(b) Costco's Cost. Any and all construction or other improvement work
undertaken by Costco for purposes of constructing the Revised Elevator System shall be at the
sole cost and expense of Costco as between Costco and City. The cost of maintaining, repairing
and replacing the Revised Elevator System, once completed and accepted by City, shall be at the
sole cost and expense of City as provided in Section 7 of the Developer/City Parking Agreement.
Notwithstanding the foregoing, Costco reserves the right, but shall not have the obligation, to
maintain, repair and replace the Revised Elevator System at its cost and expense pursuant to the
provisions of Section 7 of the Developer/City Parking Agreement, as may be amended.
(c) Insurance. In connection with the construction and improvement of the
Revised Elevator System only, Costco shall maintain builder's all risk insurance and commercial
general liability insurance with commercially reasonable limits of coverage and deductibles.
Costco covenants to keep the Parking Parcel free and clear from and against any mechanic's
and/or materialmen's liens or stop notice which may be recorded against the Parking Parcel
relating to Costco's construction or improvement work referred to herein. Costco further agrees
that it will undertake such reasonable actions as may by necessary to cause any such mechanic's
or materialmen's liens or stop notice to be removed within sixty (60) days of receipt of notice
that such lien or stop notice has attached to the Parking Parcel, including, but not limited to,
bonding around any such lien or stop notice in accordance with statute. Notwithstanding the
foregoing, Costco shall have the right to satisfy its insurance obligations hereunder by means of
self-insurance to the extent of all or part of the insurance required hereunder, but only so long as
(i) Costco (or an affiliate providing the insurance) shall have a net worth of at least
$200,000,000; and (ii) Costco (or an affiliate providing the insurance) shall, upon request,
provide a public securities filing showing the required net worth. In addition, the insurance
required to be carried by Costco may be carried under a policy or policies covering other
liabilities and locations of Costco; provided, however, that such policy or policies apply to the
Costco Parcel in an amount not less than the amount of insurance required to be carried by
Costco with respect thereto, which policy shall contain a per location endorsement.
4. MAINTENANCE OF PUBLIC PARKING STRUCTURE. The provisions of
Section 7 of the Developer/City Parking Agreement, as may be amended, apply to this
Agreement without limitations. City hereby represents and warrants that it will not amend the
Developer/City Parking Agreement without the written consent of Costco.
5. USE OF PUBLIC PARKING STRUCTURE. Except as provided in Section 2(a)
of the Developer/City Parking Agreement, the Public Parking Structure, providing exclusive
rights to a certain number of spaces, the Public Parking Structure will be used only for daily
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public parking, and for no other use whatsoever. Notwithstanding the generality of the foregoing,
long term and leased parking are specifically prohibited. City shall be permitted to charge
parking fees in its sole discretion in accordance with the provisions of Section 8 of the
Developer/City Parking Agreement, and prior to doing so, shall obtain a written parking rate
study of other publicly accessible parking facilities in the vicinity of the Project illustrating the
range of fees charged for parking in such facilities prepared by a reputable consultant possessing
knowledge and experience commensurate with the needs of such study. If City elects to impose
parking fees for use of the Public Parking Structure, City shall require parking operators to
provide procedures for validation privileges for Permittees of Costco and any other business
owners on behalf of individual users of the Public Parking Structure.
6. CASUALTY AND CONDEMNATION. Upon the event of Casualty Loss or
condemnation of the Public Parking Structure, the provisions of Section 10 of the Developer/City
Parking Agreement shall apply.
7. TAX MATTERS. The parties hereto acknowledge and agree that it is intended
that the interest on the Special Tax Bonds remain excluded from the gross incomes of the owners
thereof for purposes of federal income taxation, and that this Agreement does not confer any
"special legal entitlement" within the meaning of the Code and the regulations promulgated
thereunder upon the Developer or any other nongovernmental entity with respect to the Public
Parking Structure.
8. DISPUTE RESOLUTION. The dispute resolution provisions of Section 33 of the
Developer/City Parking Agreement shall apply hereunder in the event of any dispute between the
parties hereto.
9. NO LICENSE BY IMPLICATION; PREVENTION OF PRESCRIPTIVE
RIGHTS; PROHIBITION AGAINST GRANTING LICENSES. Neither the execution of this
Agreement or any instrument which may be executed in connection herewith nor the granting of
the rights described herein shall be deemed to grant any other license or easement to any third
party or to establish any easements or licenses by implication. The Parties to this Agreement
understand and agree that the only license or easement made and granted by the Parties are those
licenses and easements which are expressly made and granted by this Agreement. The City
hereby reserves the right to eject or cause the ejection from its Parcel any person not authorized,
empowered or privileged to use that Parcel. Further, the City reserves the right to restrict access
to its Parcel for such reasonable period or periods of time as may be legally necessary to prevent
the acquisition of prescriptive rights by any person; provided, however, that prior to such
restriction of access the Party exercising that right shall give written notice to the other Party of
its intention to do so and shall coordinate such restriction of access with the other Party so that
no unreasonable interference with the operation of the other Party's Parcel shall occur. Nothing
contained herein shall be deemed to be a gift or dedication of any portion of the following Parcel
to the general public or for the general public or for any public purpose whatsoever. No Party,
nor any person not a Party, shall grant an easement or license or licenses of the type set forth in
this Agreement for the benefit of any property not within the Project at the time of such grant.
10. RECIPROCAL REPRESENTATIONS AND WARRANTIES. The following
constitute reciprocal representations and warranties of City and Costco to the other Party.
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(a) Power. Each Party has the legal power, right and authority to enter into
this Agreement and the instruments referenced herein, and to consummate the transactions
contemplated hereby.
(b) Requisite Action. All requisite action (corporate, trust, partnership or
otherwise) has been taken by each Party in connection with the entering into this Agreement, the
instruments referenced herein, and the consummation of the transactions contemplated hereby.
Except as expressly described in this Agreement, no consent of any partner, shareholder,
creditor, investor, judicial or administrative body, governmental authority or other party is
required.
(c) Authority. The individuals executing this Agreement and the instruments
referenced herein on behalf of each Party and the partners, officers or trustees of such Party, if
any, have the legal power, right, and actual authority to bind such Party to the terms and
conditions hereof and thereof.
(d) Validity. This Agreement and all documents required hereby to be
executed by each Party are and shall be valid, legally binding obligations of and enforceable
against such Party in accordance with their terms, subject only to applicable bankruptcy,
insolvency, reorganization, moratorium laws or similar laws or equitable principles affecting or
limiting the rights of contracting parties generally.
11. ATTORNEYS' FEES. In the event at any time during the term of this Agreement
any action or suit is brought by a Party against another Party hereunder by reason of any breach
of any of the covenants, agreements or provisions on the part of the other Party arising out of this
Agreement, then in that event the prevailing Party shall be entitled to recover from the other
Party all costs and expenses of the action or suit, including, without limitation, actual attorneys'
fees, accounting and engineering fees, and any other professional fees resulting therefrom, and
all fees and costs incurred on any appeal from such action or proceeding.
12. NOTICE TO PARTIES. All notices or other communications required or
permitted hereunder shall be in writing, and shall be personally delivered (including by means of
professional messenger or overnight courier service) or sent by fax showing confirmed receipt,
and shall be deemed received upon the date of receipt thereof.
To Costco: Costco Wholesale Corporation
999 Lake Drive
Issaquah, Washington 98027
Attention: Property Management (Legal Dept.)
Facsimile No.: 425-313-8105
with a copy to: Voss, Cook & Thel LLP
895 Dove Street, Suite 450
Newport Beach, California 92660
Attention: David A. Lurker, Esq.
Facsimile No.: 949-435-0226
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To City: City of Huntington Beach
2000 Main Street
Huntington Beach, California 92648
Attn: Director of Economic Development
Facsimile: 714-375-5087
With copies to: City of Huntington Beach
2000 Main Street
Huntington Beach, California 92648
Attn: City Attorney
Facsimile: 714-374-1590
Notice of change of address shall be given by written notice in the manner detailed in this
Section 12.
13. AMENDMENT. The provisions of this Agreement may be modified or amended,
in whole or in part, only with the consent of the Parties, by declaration in writing, executed and
acknowledged by all of the same, duly recorded in the Official Records.
14. NO THIRD PARTY BENEFICIARIES. The provisions of this Agreement are for
the exclusive benefit of the Parties, any Mortgagees, and of their successors and assigns, and not
for the benefit of any other party, nor shall this Agreement be deemed to have conferred any
rights, express or implied, upon any other party. It is expressly understood and agreed that no
modification or amendment, in whole or in part, of this Agreement shall require any consent or
approval of any third party.
15. TERMINATION; BREACH SHALL NOT PERMIT TERMINATION. Except
as otherwise specifically provided in this Agreement, the licenses granted pursuant to
Section 1(a), (b) and (c) shall terminate upon the completion of the Revised Elevator System.
The remaining interests hereunder shall last until the termination of the Costco Lease, or if
Costco acquires the Costco parcel, shall last in perpetuity, unless sooner terminated by written
agreement between the Parties which is recorded in the Official Records. It is expressly agreed
that no breach of this Agreement shall entitle any Party to cancel, rescind, or otherwise terminate
this Agreement, and such limitations shall not affect in any manner any of the rights or remedies
which the Parties may have by reason of any breach of this Agreement.
16. ESTOPPEL CERTIFICATE. Each Party hereby severally covenants that upon
written request of the other Party, it will within thirty (30) days of such request, issue to such
other Party, or to any Mortgagee or any other party specified by such requesting Party, an
estoppel certificate stating: (a) whether the Party to whom the request has been directed knows of
any default under the Agreement, and if there are any known defaults, specifying the nature
thereof; (b) whether to its knowledge the Agreement has been assigned, modified or amended in
any way (or if it has, then stating the nature thereof), and (c) that to the Party's knowledge the
Agreement as of that date is in full force and effect. Such statement shall act as a waiver of any
claim by the Party furnishing it to the extent such claim is based upon facts contrary to those
asserted in the statement and to the extent the claim is asserted against a bona fide encumbrancer
or purchaser for value without knowledge of facts to the contrary of those contained in the
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or purchaser for value without knowledge of facts to the contrary of those contained in the
statement, and who has acted in reasonable reliance upon the statement. However, such
statement shall in no event subject the Party furnishing it to any liability whatsoever,
notwithstanding the negligence or other inadvertent failure of such Party to disclose correct
and/or relevant information.
17. NO PARTNERSHIP. Nothing contained in this Agreement, nor any acts of the
Parties, shall be deemed or construed to create any relationship of principal and agent, or of
partnership, or of joint venture, or of any association between the Parties.
18. PARTIAL INVALIDITY. If any term, provision or condition contained in this
Agreement or the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of such term or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each such term and provision of this Agreement
shall be valid and be enforced to the fullest extent permitted by law provided, however, if the
intent and purpose of the parties hereto is rendered unachievable due to such invalid term or
provision, then either party shall have the right to terminate this Agreement.
19. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the Parties hereto. Notwithstanding
anything contained herein to the contrary, either Party may delegate all or any portion of its
respective rights and obligations under this Agreement to any third party, so long as such
assignee expressly assumes in writing the obligations of such delegating Party hereunder and
such .delegating Party remains principally liable for such assignee's performance under this
Agreement, except as otherwise provided in Section 26 below.
20. TIME OF ESSENCE. The Parties hereby acknowledge and agree that time is
strictly of the essence with respect to each and every term, condition, obligation and provision
hereof and that failure to timely perform any of the terms, conditions, obligations or provisions
hereof by either Party shall constitute a material breach of and a non -curable (but waivable)
default under this Agreement by the Party so failing to perform.
21. CONSTRUCTION. Headings at the beginning of each paragraph are solely for
the convenience of the Parties and are not a part of the Agreement. Whenever required by the
context of this Agreement, the singular shall include the plural and the masculine shall include
the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by
one of the parties, but rather as if both parties had prepared the same. Unless otherwise indicated,
all references to paragraphs and subparagraphs are to this Agreement. All exhibits referred to in
this Agreement are attached and incorporated by this reference. In the event the date on which
either Party is required to take any action under the terms of this Agreement is not a business
day, the action shall be taken on the next succeeding business day.
22. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which, together, shall constitute one and the same
instrument. Signature pages may be detached from the counterparts and attached to a single copy
of this document to physically form one document.
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23. GOVERNING LAW. The Parties acknowledge that this Agreement has been
negotiated and entered into in the State of California. The Parties expressly agree that this
Agreement shall be governed by, interpreted under, and construed and enforced in accordance
with the laws of the State of California.
24. NO EFFECT ON MORTGAGE. The Parties acknowledge and agree that any
default or breach by a Party of its obligations hereunder shall in no way defeat, affect, render
void or reduce in any way the rights of any Mortgagee of any Parcel.
25. CONSENT. In any instance in which any Party shall be requested to consent to
or approve of any matter with respect to which such Party's consent or approval is required by
any of the provisions of this Agreement, such consent or approval or disapproval shall be given
in writing, and shall not be unreasonably withheld, conditioned or delayed, unless the provisions
of this Agreement with respect to a particular consent or approval shall expressly provide
otherwise.
26. RELEASE. If a Party shall sell, transfer or assign its entire Parcel or its interest
therein, it shall, except as provided otherwise in this Agreement, be released from its unaccrued
obligations hereunder from and after the date of such sale, transfer or assignment. It shall be a
condition precedent to the release and discharge of any grantor or assignor Party that the
following conditions are satisfied: (a) such grantor or assignor shall give notice to the other
Parties of any such sale, transfer, conveyance or assignment promptly following the filing for
record of the instrument effecting the same; and (b) the transferee shall execute and deliver to the
other Parties a written statement in a form suitable for recording in the appropriate County
Recorder's office in which: (i) the name and address of the transferee shall be disclosed; and
(ii) the transferee shall acknowledge its obligation hereunder and agree to be bound by this
Agreement and perform all obligations hereunder in accordance with the provisions of this
Agreement. Failure to deliver any such written statement shall not affect the running of any
covenants herein with the land, nor shall such failure negate, modify or otherwise affect the
liability of any transferee pursuant to the provisions of this Agreement, but such failure shall
constitute a default by the transferee hereunder. Notwithstanding anything in this Section to the
contrary, it is expressly understood and agreed that no such sale, transfer or assignment shall
effectuate a release pursuant to this Section until such successor in interest to the transferor Party
has executed and recorded in the appropriate County records an instrument whereby such
successor in interest agrees to be fully bound under the provisions of this Agreement in the place
and stead of the transferor Party.
27. ENTIRE AGREEMENT. This Agreement and the exhibits hereto contain all the
representations and the entire agreement between the City and Costco with respect to the subject
matter hereof. Any prior correspondence, memoranda or agreements are superseded in total by
this Agreement and Exhibits hereto. The provisions of this Agreement shall be construed as a
whole according to their common meaning and not strictly for or against any Party. This
Agreement is not, however, intended to supersede or otherwise modify the provisions of
Developer/City Parking Agreement.
28. WAIVER OF DEFAULT. No waiver of any default by any Party shall be
implied from any omission by any Party to take any action in respect of such default if such
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default continues or is repeated. No express written waiver of any default shall affect any default
or cover any period of time other than the default and period of time specified in such express
waiver. One or more written waivers of any default in the performance of any term, provision or
covenant contained in this Agreement shall not be deemed to be a waiver of any subsequent
default in the performance of the same term, provision or covenant or any other term, provision
or covenant contained in this Agreement. The consent or approval by any Party to or of any act
or request by any other Party requiring consent or approval shall not be deemed to waive or
render unnecessary the consent to or approval of any subsequent or similar acts or requests. The
rights and remedies given to any Party by this Agreement shall be deemed to be cumulative and
no one of such rights and remedies shall be exclusive of any of the others, or if any other right or
remedy at law or in equity which any such Party might otherwise have by virtue of a default
under this Agreement, and the exercise of one such right or remedy by any Party shall not impair
such Party's standing to exercise any other right or remedy.
29. LIABILITY OF CITY. Notwithstanding anything herein to the contrary, City
shall not have any liability or obligation of any kind under this Agreement in connection with
(a) the design or construction of the Public Parking Structure, or (b) the operation, use,
maintenance, repair or replacement of the Public Parking Structure during any period in which
Developer is acting as a Qualified Operator. Notwithstanding anything herein to the contrary,
any and all monetary obligations of City under this Agreement shall be payable solely from any
revenues derived by City from the Public Parking Structure or from the proceeds of the Public
Parking Structure Maintenance Special Tax (after deduction for the costs of collection and other
administrative expenses) levied by City on the District. In no event shall City's general fund be
liable hereunder. Costco hereby waives and releases City from any and all such liability or
obligation.
[Signatures follow on next page]
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25835.00001 \5770689.2
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
and year hereinabove written.
ATTEST:
By.
N oaK L. ly
Ti tl `: City Clerk
CITY
CITY OF HUNTINGTO EACH,
CALIFORNYA, a Ca ' ornia EACH,
city
By:
Name Joe C
Title: Mayor
COSTCO WHOLESALE CORPORATION,
a Wz
By:
Nam
Title.
H:\Client Folders\Costco (04210)\Bella Terra Lease (020)\Docs\City Parking License Agreement & Covenant VCT 041311 DOC
-11-
25835.00001 \5770689.2
STATE OF CALIFORNIA )
ss.
COUNTY OF I QR44 JG� )
On Oft&&=� /f , 20,ff, before me, . L-
a Notary Public, personally appeared��y4.ou L , who proved to
me on the basis of satisfactory evidence to be the personowhose name ' are ubscribed to
the within instrument and acknowledged to me that 4 the executed the same in
t ei authorized capaci ies , and that by 4is t'. e1 signatureo on the instrument, the
persono or the entity upon behalf of which the person(D acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
i t ESPARZA
Commission # 1857021
a "�AA Notary Public - California z �% , Z
(Se Orange County
) My Comm. Ex fires Au q
P 9 2013
25835.00001 \5770689.2
Notary Public
-1-
e
STATE OF-C - )
g ) ss.
COUNTY OF
On Agra—) a—) , 20#, before me, Le- V22 " % a4.rA my—,
a Notary Public, personally appearedwho proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.-^
I certify under penalty of perjury under the laws of the State of �a at the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Nota Public i•
(Seal)
-2-
25835.00001 \5770689.2
CONSENT AND APPROVAL
BELLA TERRA ASSOCIATES, LLC
The undersigned hereby expressly approves and consents to the terms of this Agreement
and, to the extent applicable, agrees to be bound by the terms and provisions hereof. This
Consent and Approval shall be binding on the undersigned's successors and assigns.
The undersigned agrees not to amend or modify the terms of the Developer/City Parking
Agreement or the Operating Agreement without the prior written consent of Costco, which
consent shall not be unreasonably withheld.
Nothing herein shall be deemed to limit any rights or remedies of Costco under the terms
of the Ground Lease between BTDJM Phase II Associates, LLC, Costco, the Developer/City
Parking Agreement, or the Amended and Restated Construction, Operation and Reciprocal
Easement Agreement applicable to the Retail Parcel, the Costco Parcel, and the SCE Lease
Parcel.
[signatures follow on next page]
-1-
2583 5.00001 \5770689.2
Dated: al, 7' -7 , 2011
BELLA TERRA ASSOCIATES, LLC,
a Delaware limited liability company
By:
Name: D. John Miller
Its: President
ATTEST:
City Clerk
APPROVED AS TO FORM:
Huntington Beach City Attorney
-2-
25 83 5.00001 \5 770689.2
STATE OF CALIFORNIA )
ss.
COUNTY OF &v,, h -- C� )
On Z , 20A before me, J - d— '5.S XI._�
a Notary Public, personally appeared who proved to
me on the basis of satisfactory evidence to be the perso whose nameks) 1 are subscribed to
t . within instrument and acknowledged to me thashe/they executed the same in
h/her/their authorized capacity, and that bydiwher/their signatureKon the instrument, the
person#), or the entity upon behalf of which the persony acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
S. R. ESHETT
Comm. # 1902187
t� Ea® S NOTARY PUBLIC -CALIFORNIA V1
in SANTA CLARA COUNTY e
(Seal) MY Comm. ESP. Am. 30, 2014 'A
Notary Public
-3-
2583 5.00001\5770689.2
CONSENT AND APPROVAL
BTDJM PHASE II ASSOCIATES, LLC
The undersigned is the fee owner of the Costco Parcel. The undersigned hereby
expressly approves and consents to the terms of this Agreement and, to the extent applicable,
agrees to be bound by the terms and provisions hereof. This Consent and Approval shall be
binding on the undersigned's successor and assigns.
Nothing herein shall be deemed to limit any rights or remedies of Costco under the terms
of the Ground Lease between the undersigned and Costco, the Developer/City Parking
Agreement, or the Amended and Restated Construction, Operation and Reciprocal Easement
Agreement applicable to the Retail Parcel, the Costco Parcel, and the SCE Lease Parcel.
Dated: , 2011
BTDJM PHASE II ASSOCIATES, LLC,
a Delaware fi company
T
By: /
Name: John Miller
Its: •President
-1-
2583 5.00001 \5770689.2
STATE OF CALIFORNIA )
ss.
COUTY OF- C/«_
N
On , 20/�, before me, s //-. �3 X,-� ,
a Notary Public, personally appeared �% /,, who proved to
me on the basis of satisfactory evidence to be the persou{sy whose name( /are subscribed to
the within instrument and acknowledged to me that &'/she/they executed the same in
0/her/their authorized capacity�,, and that by s er/their signature,(<on the instrument, the
persor�, or the entity upon behalf of which the persol4(<acted, executed the instrument.
I certify. under penalty of perjury under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
S. R. ESHET
Comm. # 1902187 11nn
;1 ""® NOTARY PUBLiC•CALWORMIA
SANTA CLARA COUNTY
(Seal) MT COMM. EXP. AUG. 30, 2D14
—,cf ?�(-
Notary Public
-2-
25835.00001M70689.2
EXHIBIT "A"
PARKING PARCEL
LD 1018 SHEET 1 OF 2
02-100 EXHIBIT "A"
LEGAL DESCRIPTION FOR
BELLA TERRA PARKING STRUCTURE '
THE LAND BEING REFERRED TO HEREIN IS SITUATED IN THE CITY OF
HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA.
PARCEL 'A"
BEING A PORTION OF PARCELS 2 AND 6 AS SHOWN IN PARCEL MAP NO. 86-200,
RECORDED IN BOOK 255, PAGES 40 THROUGH 45 INCLUSIVE OF PARCEL MAPS
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY OF ORANGE,
SAID PORTION OF LAND ALSO SHOWN AS PARCEL 11 OF APPROVED
TENTATIVE PARCEL MAP NO. 2003-163 DATED MARCH 5, 2004, DESCRIBED AS
FOLLOWS;
BEGINNING AT THE EASTERLY TERMINUS OF THE NORTH LINE OF SAID
PARCEL 2, SHOWN AS "NORTH 89'29'30" WEST 763.75 FEET' ON SAID PARCEL
MAP NO. 86-200, SAID POINT ALSO BEING ALONG THE SOUTHERLY LINE OF THE
SOUTHERN CALIFORNIA EDISON RIGHT OF WAY (150.00 FEET IN WIDTH) PER
GRANT DEED RECORDED DECEMBER 18, 1958 IN BOOK 4519, PAGE 491 OF
OFFICIAL RECORDS; THENCE ALONG SAID LINE NORTH 89'32'06" WEST
(N89'29'30"W) A DISTANCE OF 67.51 FEET TO THE TRUE POINT OF BEGINNING;
THENCE DEPARTING SAID LINE SOUTH 00°27'54" WEST (S00'30'30'W) A
DISTANCE OF 334.58 FEET; THENCE NORTH 89'32'06" WEST (N89'29'30'W) A
DISTANCE OF 135.12 FEET; THENCE SOUTH 70029'40" WEST (S70'32'16"W) A
DISTANCE OF 4,39 FEET; THENCE NORTH 89'32'06" WEST (N89°29'30'W) A
DISTANCE OF 3.00 FEET; THENCE NORTH 00°27'54' EAST (N00'30'30"E) A
DISTANCE OF 126.75 FEET; THENCE NORTH 89'32'06" WEST (N89'29'30'W) A
DISTANCE OF 274.25 FEET; THENCE NORTH 00027*54" EAST (N00'30'30'E) A
DISTANCE OF 209.33 FEET TO ABOVE MENTIONED NORTH LINE; THENCE
EASTERLY ALONG SAID LINE SOUTH 89'32'05- EAST (S89'29'30"E) A DISTANCE
OF 416.50 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING AN AREA OF 2.41 ACRES MORE OR LESS.
BASIS OF BEARINGS USED FOR THIS LEGAL DESCRIPTION IS BASED ON THE
BEARING BETWEEN O.C.S. HORIZONTAL CONTROL STATION GPS NO. 5110 AND
STATION G,P.S. NO. 5112, BEING NORTH 89'32'06" WEST PER RECORDS ON FILE
IN THE OFFICE OF THE COUNTY SURVEYOR. BEARINGS IN PARENTHESIS ARE
BASED ON PARCEL MAP NO. 86-200.
SEE EXHIBIT 'B" SHEET 2 OF 2 ATTACHED HERETO AND BY THIS REFERENCE
MADE A PART THEREOF.
N
�' �r` -4- fCHIRISTOPHER
ANIFl5
CHRIST PHER W. DANIELS
Exhibit "A"
25835.00001 \5770689.2
EXHIBIT "B"
RETAIL PARCEL
In the City of Huntington Beach, County of Orange, State of California, being Parcels 1 through 10,
inclusive of Parcel Map No. 2003-163 as per map filed in Book 358, Pages 1 through 9, inclusive of
Parcel Maps in the office of the County Recorder of said County, together with Parcel 1 of Parcel Map
No. 86-200 as per map filed in Book 255, Pages 40 through 45, inclusive of said Parcel Maps.
Exhibit "B"
25835.00001 \5770689.2
EXHIBIT "C"
C®STC® PARCEL!
PARCEL A (COSTCO PARCEL):
PARCELS 1 AND 2 OF LOT LINE ADJUSTMENT NO. 10 RECORDED QQ Z l _ 2011 AS INSTRUMENT
NO. 2Q1 tQQQ523 "k5 t OF OFFICIAL RECORDS IN ORANGE COUNTY, CALIFORNIA
Exhibit "C"
258 35.0000115770689.2