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CONTRACT 2976 Developer’s Agreement L E A D S H E E T 02-"06600713 R EC 0 R D E fj''�) L D OFFICRI. RECORDS L OI;. NC? S OFFICE 'r OLINTY, CAI'ff'o�i�t4 I�A L_3.21 PM MAR 19 2112 SPACE ABOVE THIS LINE FOR-RECORDERS USE At TITLE(S) FEE D.T.T. U5 CODE 20 CODE 19 CODE 9 Assessor's Identification Number (AIN) To Be Completed By Examiner OR Title Company In Black Ink Number of Parcels Shown At At THIS FORM IS NOT TO BE DUPLICATED RECORDING REQUEST BY WHEN RECORDED MAIL TO: City of El Segundo City Clerk's Office 350 Mail Street El Segundo, CA 90245 SPACE ABOVE THIS LINE RESERVED FOR RECORDER'S USE TITLE(S) DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF EL SEGUNDO AND TPG-EL SEGUNDO PARTNERS LLC r m RECORDING REQUESTED BY 02 0660073 AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF EL SEGUNDO 350 Main Street EXEMPT FROM RECORDER'S FEES El Segundo, California 90245 Pursuant to Government Code § 6103 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF EL SEGUNDO AND TPG-EL SEGUNDO PARTNERS LLC THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 TABLE OF CONTENTS 02 0660073 1. RECITALS .............--.,,....,.....,.....,..,...................,..,..,....,....,..,.......,...,....,...,...,.....,,..,,,.-A 2, PROPERTY SUBJECT TO THIS AGREEMENT ....—................. ,..,.,,.,..,.......,.,.,,.2 3, BINDING EFFECT.......................-..............,...........,....,,......................---......,..............,2 3.1 AGREEMENT PERSONAL TO DEVELOPER. ...........2 3.2 Constructive Notice and Acceptance.......................................„...........,.,,...,..,,..,.,...3 3.3 Rights to Assign........................................---............ ..........,., ..,,.....,........,....,.,....3 3.4 Liabilities Upon Transfer.......................................................... ..............................3 4. DEVELOPMENT OF THE PROPERTY.......,.. ........................................................4 4.1 Permitted Uses.........................................................—........,...............---............ .4 4.2 Development Standards.................... ........,.....,................,.----.........,......4 4.3 Building Standards...................................................................................................4 4.4 Fees, Exactions, Mitigation Measures, Conditions, Reservations and Dedications................................................................—............—4 4.5 Setbacks .............---.........................................--........................---..................4 4.6 Floor Area Ratio - ...........,.,.----....................................... —....,,.,..,....,....,..,,,...4 4.7 Maximum Height of Buildings and Structures........................................................4 4.8 Subdivided Lots.........................................................--............................,,........,.,.4 4.9 Minimum and Maximum Floor Area By Use..........................................................5 4.10 Maximum A.M. and P.M. Peak Hour Trips ....----... ..............................................5 5. VESTING OF DEVELOPMENT RIGHTS ........................—.......... .,—...............,....,.,,.,,,,6 5.1 Applicable Rules............................................................ .,,...,.,.—.,..........,.,,6 5.2 Entitlement to Develop..................... ...............--........,...,.,..,..........,....,...—. . ,,.6 5.3 Subsequent Enactments .....--.........................-,,-...................................................6 5.4 Future Approvals ..........................................................................................—..,. —6 5.5 Plan Review............................................................................................................,,7 -i- 9976 0 -1 02 0660'0073 5.6 Modification of Approvals.........,,,,,..,.. ........................ ..............................7 5.7 Timing of Development.................................................---..........,.................,,,,.,.8 5.8 Term.........................................................................................................................8 5.9 Issuance of Building Permits...................................................................................8 5.10 Satisfaction of Mitigation Measures and Conditions...............................................8 5.11 In Lieu Credits.................................................................... ,,,,.,...........,..,,,,...8 6, DEVELOPER AGREEMENTS ..........................................................................................9 6.1 General.....................................................................................................................9 6.2 Fire Station Site.................................................. ,,......................................9 6.3 Development Fees.................................. ................................................................9 6.4 Processing Fees.................. ...............,........,.,,,.,...,.........,..........,....,...,..9 6.5 Other Fees...................................... ............................................. ...........................9 6.6 Sale of Park Site.................... ................ ..................,,,,,,.9 6.7 Maintenance Obligation...........................................................................................9 6.8 Sales and Use Tax....................................................................................................9 7. CITY/DEVELOPER AGREEMENTS....................................... ....................................11 7.1 Expedited Processing.................... ......... ........... ............ 7.2 Processing Cooperation and Assistance.................................................................11 7.4 Processing During Third Party Litigation..............................................................1 l 7.5 Reimbursement and Apportionment........................ 8. MODIFICATION/SUSPENSION.....................................................................................1.1 9. DEMONSTRATION OF GOOD FAITH COMPLIANCE.........„.....................................12 9.1 Review of Compliance............................ ............................ ,.......,..........,,,,,,.,12 9.2 Good Faith Compliance.............................-...........,..,........ ...............,.,,.,...,.12 9.3 Information to be Provided to Developer..............................................................12 -ii - ` 0 � �� [ � 9.4 Notice,of Cure Rights.... ............._ ....... ....... ............. 12 9.5 Failure OfPeriodic Review .... — ........................--.—............—..—.-- ....l2 lO. EXCUSABLE DELAYS ........------.'.—__......- .......--.—................— ... .l2 ll, DEFAULT PROVISIONS........ ...... ....... , .............-~_..—_------_—.~.^-._.,--1] l].l Dofaol .---.----.....~.~..^~-------_--_..~'.'~_---.....,.l] 11.2 Content of Notice of Violation ........._-. ............................-_—.................l3 11.3 Remedies for Breach...................... ...................___.......___...... .-.._---.—.l3 12. MORTGAGEE PROTECTION ..... --.—... ............ ........... ...-...........--...............l3 12.1 Mortgage Not Rendered Invalid.......----........-.__--.--_........... --l4 . 12-2 Request for Notice mf Mortgagee....... . .........................._.—....... —.—......--l4 12.3 Mortgagee's Time b» Cure.................—_....... ........ ..........__ ............ ...~.--}4 12/4 Cure Rights ... ...... .._--_.........-~.-.__—. .............. ........... ............... ...l4 12.5 Bankruptcy.. .....~..,^ ... ...... .................. ~...~..__— ...............-._—...—....l4 12.6 Disaffirmation.......... ......... ........... .........'....... .^~._._--~—........... ._--~...l5 13. ESTOPPEL CERTIFICATE.,................. .,~.,__~,.,,,,,.,......... ......... .,,,,...__..........15 14. ADMINISTRATION OF AGREEMENT........... —..~.~.....—....... ...............-- ........,l5 14`1 Appeal of Staff Determinations.... .......... .......... .......15 14.2 Operating Memoranda......... ...... .....~._ ......................_--.. ........................l5 14.3 Certificate mf Performance.......... ............. ........ ............ ...............—............—..l6 15. AMENDMENT OR TERMINATION BY MIJ77lAL CONSENT......................................-'^~^'— ... ........ '-^—^^'^--- ......'...~._....... ......l6 ld. ................. ..............-...—.---- .................. .........l6 16.1 Indemnification....................... _.........^.-..-._—.........___--.--...-_ ...l6 16.2 Defense of Agreement .... ..._...... ...................._—............,......... ........... ..........l6 17. TIME OF ESSENCE ...,. .... .........___........ .....___...... ............. .... ............... .......l7 18. EFFECTIVE DATE...................'....— .................................~—~. .....~.. ........ ..---17 02 �� _ � � �� 19. NOTICES.... ......._.-----........---.....------....-..._-- ........ .~]7 _ 20. ENTIRE AGREEMENT...... ._.---__-------......-.. ........... ...... .......-.......l7 21. WAIVER............................... -----.............. .........-......... ......._.............. _........l7 . 22. SEVERABILITY.,......---.--. ...... ---........................-.....-,.-,..,_____~ ...}8 23. RELATIONSHIP OF THE PARTIES, -.._----- ....... -.-.---.. ......... ---.l0 24. NO THIRD PARTY BENEFICIARIES.........................-. .......- ........... ...... -.--l0' 25. RECORDATION OF AGREEMENT AND AMENDMENIS .....__-------.--.-..._...-......._...-.._--....-.--l8 26. COOPERATION BETWEEN CITY AND DEVELOPER............ --,18 27. RULES OF CONSTRUCTION.............-.-~-....... ...... .,..~',...._^...................... ....18 20. JOINT PREPARATION.......--- ........._..._----- .....................----- ... ..l8 29. GOVERNING LAW AND VENUE ----..........--..__-----__..--_--.l� 30. ' FEES---.----_._._-._--........-..._--------...-.-l4 ]l. COUNTERPARTS ........................... '^~^`r^^--^--....... -- ....... ^-~'--'-^~`'^~^A9 32 � � �I� . DEDICATION...........-._.-................__,^,^,__,,____ 19 EXHIBIT A-PROPERTY DESCRIPTION.... _.....- ....... ............ _....... ....... ..............2l EXHIBIT -ASSIGNMENT AND AS SllMPTION AGREEMENT---...-........... -- ....]O EXHIBIT C - TENTATIVE PHASING PLAN.............. ............ .............................-.-- ....34 EXHIBIT D - DEVELOPMENT FEE SCHEDULE..................... .....---- ......... ......................35 EXHIBIT ]B - PURCHASE AGREEMENT,_,__ ......................----......__................ ......38 ullilll� �Wi� � �iw� ° 7 02 0660073 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is made and entered into by and between the CITY OF EL SEGUNDO, a municipal corporation (referred to hereinafter as "City") and TPG- El Segundo Partners, LLC, a California limited liability company(referred to hereinafter as "Developer"). City and Developer, are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreements contained in this Agreement, City and Developer agree as follows: 1. l .ecitals. This Agreement is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: 1.1 Pursuant to Government Code section,65865 et se Q., City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property for the development of such property. 1.2 Developer is in escrow to purchase from Federal Express Corporation, a Delaware Corporation certain real property in the City of El Segundo, consisting of approximately 46.53 acres located in northeast quadrant of the City, as more specifically described by the legal description set forth in Exhibit A, which exhibit is attached hereto and incorporated herein by this reference (the "Property"). 1.3 Developer desires to develop the Property as a"Mixed- Use"project in accordance with the purpose and intent of the Corporate Campus Specific Plan (SP No. 01-1)(the "Specific Plan"), and specifically, develop the property with hotel/conference center, office (including general office, government office, and multimedia-related office),retail, light industrial, restaurant, research and development, as such are defined in the El Segundo Municipal Code, and technology, web hosting, and telecommunications uses, all as defined in the Specific Plan. 1.4 City has approved/certified, or is in the process of approving/certifying Environmental Impact Report No. EA-548, the Mitigation Monitoring Plan of the Project Environmental Impact Report; Vesting Tentative Tract No. 53570 (Sub. No. 01-5), Administrative Use Permit No. 01-1, and Development Agreement No. 01-1, General Plan Amendment No. 01-02, Zone Change No. 01-01, Zone Text Amendment 01-1, the Corporate Campus Specific Plan, and conditions of approval imposed in connection herewith (the "Conditions of Approval") (the foregoing are collectively referred to as the "Project Approvals" and are hereby incorporated into and made a part of this Agreement.) Developer's application for the Project Approvals was deemed complete by the City on September 24, 2001 (the "Application Date"). 1.5 By this Agreement, City desires to obtain the binding agreement of Developer to develop the Property in accordance with the Project Approvals and this Agreement,. In consideration thereof, City agrees to limit the future exercise of certain of its governmental and proprietary powers to the extent specified in this Agreement. - 1 - „ a '2 0660073 Lj 1.6 By this Agreement, Developer desires to obtain the binding agreement of City to permit the development of the Property in accordance with the Project Approvals, the Applicable Rules (as defined herein) and this Agreement. In consideration thereof, Developer agrees to waive its rights to challenge legally the limitations on density and use imposed upon development of the Property and other restrictions and obligations set forth in this Agreement, including, but not limited to, Developer's obligation to (a) dedicate a portion of the Property to the City for fire station purposes as provided in Section 6.2 below, (b) sell a portion of the Property to the City for park purposes as provided in Section 6.6 below, and (c) record a covenant to providing parking for the park as provided in Section 6.6 below. 1.7 City and Developer acknowledge and agree that the consideration that is to be exchanged pursuant to this Agreement is fair,just and reasonable and that this Agreement is consistent with the General Plan of City. 1.8 This Agreement is intended to provide flexible entitlements, within the parameters set forth herein and subject to the terms and conditions hereof, to meet the changing market demands that are likely to occur throughout the buildout of the Project. 1.9 The proposed Project uses are consistent with both the City's General Plan and Zoning Ordinance which identify the Property as "Urban Mixed-Use North” and "Multimedia Overlay District". 1.10 On October 25, 2001, the Planning Commission of the City commenced a duly noticed public hearing on this Agreement and at the conclusion of the hearing recommended approval of the Agreement. 1.11 On December 18, 2001, the City Council of the City("City Council") commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing certified the Final Environmental Impact Report SCH# 91041092 by Resolution No. 4241 and approved the Agreement by Ordinance No. 1345 (the "Enabling Ordinance"). 2. Pmt 'Subiect to this Agreement. All of the Property shall be subject to this Agreement. The Property or a portion thereof may be referred to hereinafter as "the Site" or the "Project Area." 3. Bindine Effect. The burdens of this Agreement are binding upon, and the benefits of the Agreement inure to, each Party and each successive successor in interest thereto and, subject to Section 3.1 below, constitute covenants that run with the Property. Whenever the terms "City" and "Developer" are used herein, such terms shall include every successor in interest thereto. 3.1 Agreement Personal to Developer. The Developer acknowledges and agrees that the City is entering into this Agreement based on the unique abilities of the Developer, including the Developer's expertise, proven track record and strong financial condition, to perform its obligations under this Agreement, deliver the public benefits promised to the City, and to construct and complete a high quality Project which will be a benefit to the City and its residents. Accordingly, the effectiveness of this Agreement and each of the Project Approvals is expressly conditioned on the acquisition of title to all or a portion (at least 16 acres) -2 - 02 0660073 of the Property, including, but not limited to, the Fire Station Site (as defined in Section 6.2 below) and the Park Site (as defined in Section 6.6 below), by Developer or an affiliated entity. As used herein, "affiliated entity" shall mean an entity which controls, is by controlled by, under common control with Developer or Developer's principals, or a partnership or joint venture of which Developer or Developer's principals are managing partners or members. In the event that Developer or an affiliated entity does not so take title to all or such portion of the Property for any reason on or before January 1, 2006, then this Agreement and Project Approvals shall, without any further action by either Party,be conclusively deemed to be void ab initi , and the zoning and General Plan designations for the Property, as amended from time to time, which existed prior to the City's adoption of the Project Approvals shall instead apply to the Property, including any subsequent amendments. Notwithstanding the provisions of Section 10 below, such January 6, 2006 deadline shall not be extended due to an Excusable Delay. 3.2 Constructive Notice and Acceptance. Every person who acquires any right, title or interest in or to any portion of the Property in which the Developer has a legal interest is, and shall be, conclusively deemed to have consented and agreed to be bound by this Agreement, whether or not any reference to the Agreement is contained in the instrument by which such person acquired such right, title or interest. 3.3 Ri hts 'to Assign. Upon acquisition of all or a portion of the Property as provided in Section 3.1 above, Developer may assign or transfer its rights and obligations under this Agreement with respect to the Property, or any portion thereof, to any person at any time during the term of this Agreement without approval of the City. 3.4 liabilities Uvon Transfer. Upon the delegation of the duties and obligations under this Agreement and the sale, transfer or assignment of all or any portion of the Property, Developer will be released from its obligations under this Agreement with respect to the Property, or portion thereof, so transferred arising subsequent to the effective date of such transfer, if(i) Developer has provided to the City prior or subsequent written notice of such transfer and(ii)the transferee has agreed in writing to be subject to all of the provisions hereof applicable to the portion of the Property so transferred by executing an Assignment and Assumption Agreement in the form of Exhibit B attached hereto. Upon any transfer of any portion of the Property and the express assumption of Developer's obligations under this Agreement by such transferee, the City agrees to look solely to the transferee for compliance by such transferee with the provisions of this Agreement as such provisions relate to the portion of the Property acquired by such transferee. Any such transferee shall be entitled to the benefits of this Agreement as "Developer"hereunder and shall be subject to the obligations of this Agreement applicable to the parcel(s)transferred. A default by any transferee shall only affect that portion of the Property owned by such transferee and shall not cancel or diminish in any way Developer's rights hereunder with respect to any portion of the Property not owned by such transferee. However,neither Developer nor any such transferee shall receive a certificate of occupancy for any Project building unless and until the Fire Station Site has been offered for dedication to the City as provided in Section 6.2 below, and the Park Site offered for sale as provided in Section 6.6 below. The transferee shall be responsible for satisfying the good faith compliance requirements set forth in Section 9 below relating to the portion of the Property owned by such transferee, and any amendment to this Agreement between the City and a transferee shall only affect the portion of the Property owned by such transferee. -3 - 02 04" 73 4. Develonment of the Property. The following provisions shall govern the subdivision, development and use of the Property. 4.1 Permitted Uses. The permitted and conditionally permitted uses of the Property, as well as the minimum and maximum allowable square footages for such uses, are set forth in the Specific Plan and condition numbers 29 and 30 of the Conditions of Approval. 4.2 Development Standards. All design and development standards that shall be applicable to the Property are set forth in the El Segundo General Plan, the Municipal Code, and City policies as of the Application Date, and the Specific Plan, the Project Approvals, and this Agreement. 4.3 Building Standards. All construction on the Property shall adhere to the Uniform Building Code, including the Fire Resistive Design Manual, the National Electrical Code, the Uniform Plumbing Code, the Uniform Mechanical Code, the Uniform Housing Code, the Uniform Sign Code, the Uniform Code for the Abatement of Dangerous Buildings, the Uniform Code for Building Conservation and the Uniform Administrative Code in effect at the time the plan check or permit is approved and to any federal or state building requirements that are then in.effect (collectively the "Building Codes"). 4.4 Fees, Exactions, M.itiaation Measures, Conditions, Reservations and Dedications. All fees, exactions,mitigation measures, conditions, reservations and dedications of land for public purposes that are applicable to the Project or the Property are set forth in the Project Approvals and this Agreement. 4.5 Setbacks. As set forth in the Specific Plan, buildings within the Project boundaries shall be setback a minimum of fifteen (15) feet from the adjoining public rights-of- way of Nash Street, Atwood Way, Douglas Street, and Mariposa Avenue. Building setbacks within the interior of the Project shall be a minimum of five (5) feet from each lot line, except for buildings adjacent to private streets/internal roadways, in which case setbacks will be 15 feet from curb face. 4.6 Floor Area Ratio ("FAR"). Development on the Property will not result in developed floor area exceeding that allowed by the Specific Plan. As provided in the Specific Plan, the maximum FAR should be calculated based on the entire area of the Property prior to the dedication and sale of the portions of the Property to the City as provided in Sections 6.2 and 6.6 below, respectively. Any covenants recorded against the Property, or portions thereof, in connection with any transfer of FAR pursuant to the Specific Plan shall survive the termination or expiration of this Agreement. 4.7 Maximum -1eiht of Buildings and Structures. As set forth in the Specific Plan and the Mixed-Used North zone, the maximum permitted height of buildings and structures on the Property shall not exceed 175 feet. 4.8 Subdivided Lots. Each lot shown on the vesting tentative tract map, and subsequent final maps, shall have a lot area of no less than 10,000 square feet. Furthermore, a -4 - 02 0660073 minimum of 100 feet of frontage shall be provided on a public street, private-and-future street, private street, or private driveway. 1 4.9 Minimum and Maximum Floor Area 13v Use. The maximum amount of net developed floor area on the Property is not to exceed the allowable FAR as permitted in the Specific Plan. Of this total, a maximum amount of eighty(80)percent of the total overall gross square footage constructed will be permitted for office uses (including general office, government office, and multimedia-related office). The minimum amount of non-office uses, consisting of one or more of the following: technology, web hosting, and telecommunication, financial institutions, hotels and motels, motion picture/television production facilities, restaurants, coffee shops, cafes, retail and wholesale sales and service, scientific research and experimental development laboratories, light industrial, medical-dental office, commercial recreational facilities, trade union halls, clubs, service clubs, veterans' organizations, lodges, and other similar uses approved by the City C.E.D.S. Director(collectively"Non-Office Uses"), shall be no less than twenty(20)percent of the total overall gross square footage constructed. Developer shall be entitled to defer development of Non-Office Uses to a later phase or phases of development pursuant to Section 6.2 and 6.6 below,,provided that the square footage of buildings or structures on the Fire Station Site and/or the Park Site shall not be considered to be Non- Office or Office Uses in determining Developer's compliance with this Section 4.9. 4.9.1 The Developer shall make a reasonable effort to include a hotel on the Property with at least 75 hotel rooms. 4.9.2 The Developer shall make a reasonable effort to include a day care of approximately 5,000 gross square feet on the Property. 4.9.3 The Developer anticipates developing the Project in phases in accordance with the Tentative Phasing Plan attached as Exhibit "C"hereto. 4.10 Maximum A.M. and P.M. peak Hoer Trims. The maximum number of A.M. and P.M. peak hour vehicle trips for the Project, as determined in accordance with the trip generation tables set forth in the Specific Plan, shall not exceed the respective maximum amounts permitted under the Specific Plan, unless a subsequent traffic report has been prepared to the reasonable satisfaction of the City of El Segundo Director of Community, Economic and Development Services ("City C.E.D.S. Director") that identifies potential impacts and proposes feasible measures to mitigate impacts and is otherwise consistent with CEQA. In the event that the traffic study identifies new, previously unidentified impacts or a substantial increase in' previously identified impacts that cannot be mitigated to insignificant levels, a Supplemental or Subsequent EIR will be prepared and processed at the City's discretion. 4.10.1 The Developer shall prepare a cumulative trip table, acceptable to the City C.E.D.S. Director, that is updated and submitted upon the filing of each building permit request. The table shall maintain an accounting of total square footage by land use as well as the number of A.M. and P.M. peak hour trips associated with each building permit. -5 - 02 0660073 5. Vesting, ofDeveloptnent Rights. 5.1 Ai licable Rules. The Applicable Rules shall consist of the following: 5.1.1 The City's General Plan, as it exists on the Effective Date; 5.1.2 The City Zoning Code, as it exists on the Effective Date; 5.1.3 Such other laws, ordinances, rules, regulations, and official policies governing permitted uses of the Property, density, design, improvement, development fees, and construction standards and specifications applicable to the development of the Property in force at the time of the Effective Date, which are not in conflict with this Agreement. 5.2 Entitlement to Develon. The Developer is hereby granted the vested right to develop the Project on the Property subject to the Applicable Rules, the Project Approvals and any future approvals granted by the City for the Project or the Property(the "Future Approvals"). 5.3 Subsequent Enactments. Any change in the Applicable Rules, including, without limitation, any change in any applicable general plan or specific plan, zoning, or subdivision regulation, adopted or becoming effective after the Effective Date, including, without limitation, any such change by means of an ordinance, initiative, resolution, policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the City Council, the Planning Commission or any other board, commission or department of the City, or any officer or employee thereof, or by the electorate, as the case may be (collectively the "Subsequent Rules"), which would, absent this Agreement, otherwise be applicable to the Property, shall not be applied by the City to any part of the Property. 5.4 Future Approvals. 5.4.1 Minor Modifications to Proi'ect. Developer may make minor changes to the Project ("Minor Modifications") without amending this Agreement upon the administrative approval of the City C.E.D.S. Director,provided that such modifications are consistent with the Development Standards, Applicable Rules, and Project Approvals and do not constitute Major Modifications pursuant to Section 5.4.2 below. The City shall not unreasonably withhold or delay approval of any Minor Modification. The City shall have the right to impose reasonable conditions in connection with Minor Modifications,provided, however, such conditions shall not(a)be inconsistent with the Applicable Rules or with the development of the Project as contemplated by this Agreement; (b) directly or indirectly, unreasonably hinder, delay, impede, obstruct, interfere with, or place unreasonably burdensome or restrictive measures or requirements upon development of the Project or the Property or any portion thereof, or(c) impose additional dedications, infrastructure or public improvement obligations, fees, or exactions in excess of those identified in this Agreement. 5.4.2 Modifications ReouirinL, Amendment to this A reernent. Any proposed modification to the Project as described below ("Major Modifications") shall not constitute a Minor Modification and shall instead require and amendment to this Agreement pursuant to Section 15 below: - 6- 02 0660073 (a) Any decrease in the_required building setbacks as set forth in Section 4.5 above; (b) Any increase in the total developable square footage of the entire Property in excess of the maximum FAR allowed under the Specific Plan; (c) Any increase in height of buildings or structures on the Property above 175 feet; (d) Any increase in the maximum amount of office uses on the Property to more than 80% of the total overall gross square footage constructed; (e) Any decrease of the minimum amount of Non-Office Uses above to less than 20% of the total overall gross square footage constructed; (f) Any increase in the maximum number of A.M. and P.M. peak hour vehicle trips for the Project as specified in Section 4.10 above, unless a subsequent traffic report has been prepared to the reasonable satisfaction of the City's C.E.D.S. Director that identifies potential impacts and proposes feasible mitigation measures to mitigate such impacts and otherwise complies with CEQA; (g) Any change in use to a use which is not permitted under the Specific Plan; (h) Any material modification to Developer's obligation to dedicate the Fire Station Site to the City as provided in Section 6.2 below or sell the Park Site to the City as provided in Section 6.6 below; and (i) Any material variation in the phasing of Non-Office Uses as provided in Section 4.9.3 above. Notwithstanding the foregoing to the contrary, modifications to the above development standards by the City C.E.D.S. Director pursuant to Section IV-B.2 of the Specific Plan shall be considered Minor Modifications. 5.5 Plan Review. Plans for each building on the Property, including plans for signage, trash enclosures and screening and landscaping shall be reviewed and approved by the City C.E.D.S. Director prior to issuance of a building permit; provided, however, that, notwithstanding anything to the contrary contained in the Applicable Rules, the sole purpose of such review shall be to verify consistency with the Development Standards, Applicable Rules, and Project Approvals. The City C.E.D.S. Director shall approve all features which are consistent with the Development Standards or are otherwise specifically approved by this Agreement and shall have no authority to disapprove or conditionally approve any features or matters which are consistent with the or otherwise which have been specifically approved by this Agreement. 5.6 Modification ofAorarovals. Throughout the term of this Agreement, the Developer shall have the right, at its election and without risk to any right that is vested pursuant to this Agreement, to apply to the City for modifications and amendments to the Project Approvals and any Future Approvals that may be granted to Developer. The approval or conditional approval of any such modification or amendment which does not constitute a Major Modification shall not require an amendment to this Agreement, provided that, in addition to any -7 - 02 0660073 p other findings that may be required, a finding is made that,the modification or amendment is I consistent with this Agreement. Any such modification or amendment shall be deemed incorporated into this Agreement at the time it becomes effective. 5.7 Tinning of Develon meat. In Pardee Construction Co. V. City of°Camarillo (Pardee), 37 Cal.3d 465 (1984), the California Supreme Court held that the failure of the parties therein to provide for the timing or rate of development resulted in a later-adopted initiative -restricting the rate of development to prevail against the parties' agreement. City and Developer intend to avoid the result in Pardee by acknowledging and providing that Developer shall have the right, without obligation, except as otherwise specifically set forth herein, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judgment subject to the term of this Agreement. In furtherance of the Parties' intent, as set forth in this section, no future amendment of any existing City ordinance or resolution, or future adoption of any ordinance, resolution or other action, that purports to limit the rate or timing of development over time or alter the sequencing of development phases, whether adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property. However, nothing in this section shall be construed to limit City's right to enforce Developer's obligation pursuant to this Agreement to provide all infrastructure required by the Project Approvals and this Agreement. 5.8 Term. Subject to Section 3.1 above, this Agreement shall be in effect for a period of nine (9) years from the effective date of the Ordinance establishing this Agreement. However, Developer or City shall be entitled to,by written request prior to the Agreement's expiration, one (1) five (5)-year extension, provided that the requesting Party is not in default of its obligations hereunder at such time. 5.9 Issuance of Building Permits. No building permit, final inspection or Certificate of Occupancy will be unreasonably withheld, conditioned, or delayed from the Developer if all infrastructure required to serve the portion of the Property covered by the building permit, final inspection or Certificate of Occupancy is in place or is suitably guaranteed to be completed (by covenant, bond, letter of credit or otherwise)to the reasonable satisfaction of the City prior to completion of construction and all of the other relevant provisions of the Project Approvals, subsequent approvals and this Agreement have been satisfied. 5.10 Satisfaction of Mitigation Measures and Conditions. In the event that any of the mitigation measures or conditions required of Developer hereunder have been implemented by others, Developer shall be conclusively deemed to have satisfied such mitigation measures or conditions, consistent with CEQA. If any such mitigation measures or conditions are rejected by a governmental agency with jurisdiction, the Developer may implement reasonably equivalent substitute mitigation, consistent with CEQA, to the City's satisfaction, in lieu of the rejected mitigation measures or conditions. Such substitution shall be deemed to be a Minor Modification pursuant to Section 5.4.1 above. 5.11 In Lieu Credits. The City shall grant developer in lieu credits, as appropriate, for the traffic mitigation measures set forth in the EIR. - 8 - 7 M z 6. Developer Agreements. 6.1 General. The Developer shall comply with (i) this Agreement, (ii) the Project Approvals, including without limitation all mitigation measures required by the determination made pursuant to the California Environmental Quality Act, and (iii) all Subsequent Approvals for which it is the applicant or a successor in interest to the applicant. 6.2 Fire Station Site. (a) Dedication. Developer shall, prior to the issuance of any Certificate of Occupancy obtained pursuant to the Project Approvals for any portion of the Property, dedicate to the City, by Grant Deed, one acre of the southeast corner of the Property which abuts either Douglas Street or Mariposa Avenue, or other mutually acceptable location ("Fire Station Site"). Because the fair market value of the Fire Station Site exceeds the amount of the services fees the City would otherwise collect in connection with the Project, Developer shall be exempt from paying any fire service mitigation fees with respect to the Project. In consideration for so dedicating the Fire Station Site, Developer shall be entitled to defer the first 50,000 gross square feet of the twenty(20)percent minimum Non-Office Uses required under Section 4.9 above. To a later phase or phases in Developer's sole good faith discretion. Prior to accepting such dedication, the City shall have the right to enter onto the Fire Station Site, upon 10 days' written notice;for purposes of conducting geotechnical and environmental soils testing. (b) Use and ImDrovemem. The City shall use the Fire Station Site solely for the purposes of constructing, operating, and maintaining a fire station or other similar public facilities compatible with the Project, such as a police station or community center. The City shall consult with Developer in developing plans and specifications for any proposed buildings or structures on the Fire Station Site in order to assure compatibility with existing and proposed development on the Property, including,but not limited to, eliminating surface parking through the joint use of parking structures on the Property where feasible, providing appropriate landscaping, and using materials and finishes which complement the Project; provided, however, that Developer shall not have any right of approval over such buildings or structures. The provision of this subsection 6.2(b) shall survive the termination or expiration of this Agreement for a period of thirty(30) years from the Effective Date. 6.3 Develotment Fees. Developer shall pay the development fee amounts identified on Exhibit D hereto ("Development Fees"). 6.4 Processine Fees. On the Effective Date of this Agreement, Developer shall pay all outstanding City processing, legal and environmental processing costs related to the project and preparation of this Agreement, if any. 6.5 Other Fees. In addition to fees specifically mentioned in this Agreement, Developer agrees to pay all City plan check fees, building inspection fees, and permit fees, generally applicable on a City-wide basis for similar projects, at the rate and amount in effect at the time the fee is required to be paid. -9 - 02 6.6 Sale of Park Site. . Prior to the issuance of any certificate of occupancy for any portion of the Property, the Developer shall offer for sale to the City an approximate 5-acre portion of the Property at the corner of Douglas Street and Mariposa Avenue (the "Park Site") pursuant to the Purchase and Sale Agreement in the form of Exhibit E attached hereto (the "Purchase Agreement"). The Park Site is more particularly described in the Purchase Agreement. As provided in Section 3.1 above, the Party's obligations to consummate the purchase and sale of the Park Site is expressly conditioned upon Developer's acquisition of title to the Park Site. The Parties shall execute the Purchase Agreement as soon as practical,but not later than sixty(60) days, after Developer acquires such title. Prior to the close of the purchase and sale of the Park Site, the City shall have the right to enter onto the Park Site for the purposes of conducting geotechnical and environmental soils testing, as provided in the Purchase Agreement. Developer shall execute a covenant reasonably satisfactory to the City to provide 100 parking spaces for the Park Site on the portion of the Property adjacent thereto in accordance with condition no. 69 of the Conditions of Approval. In consideration for selling the Park Site at less than fair market value, as determined by an independent appraisal; and providing offsite parking for the Park Site as provided herein, Developer shall be entitled to defer an additional 150,000 square feet of Non-Office Uses to a later phase or phases in Developer's sole good faith discretion. 6.7 Maintenance Obligation . The City shall maintain the Fire Stations Site, the Park Site, and any improvements thereon in a clean, neat and orderly manner. The Developer shall maintain all other portions of the Property in its possession or control, and any improvements thereon, in a clean, neat and orderly manner. The Parties' respective maintenance obligations shall survive any termination or expiration of this Agreement. 6.8 Sales and Use Tax. . (a) In the event the contract price for any work on the Project is valued at five million dollars ($5,000,000) or more, Developer agrees to report on a State Board of Equalization Tax Return, any purchases or tangible personal property made in connection with the finishing of and/or installation of materials, or fixtures for the Project, when such purchases were made without sales or used tax due. Developer shall indicate the City as a registered job site location on the State Board of Equalization Tax Return. In such event, Developer shall also obtain a permit or a sub-permit from the State Board of Equalization indicating the City as the registered job site location, in accordance with State Board of Equalization Operations Memorandum No. 1023. (b) Developer further agrees that if Developer retains contractors or subcontractors to perform a portion of work in the Project, and said contracts or subcontracts are valued at five million dollars ($5,000,000) or more, said contracts or subcontracts shall contain the provisions set forth in Subsection (a) above. (c) The Director of Finance of the City is authorized to relieve Developer, and Developer's contractors and subcontractors, from the requirements set forth in this Section 6.7 upon proof to the reasonable satisfaction of the Director of Finance that Developer and/or its contractors or subcontractors have made good faith efforts to obtain said permit or sub-permits, but were denied the same by the State Board of Equalization. - 10 - 02 0660073 7. City/Developer A reernents. 7.1 Expedited Processing,. The City shall process in an expedited manner all plan checking, excavation, grading, building, encroachment and street improvement permits, Certificates of Occupancy, utility connection authorizations, and other ministerial permits or approvals necessary, convenient or appropriate for the grading, excavation, construction, development, improvement, use and occupancy of the Project in accordance with the City's accelerated plan check process under the Applicable Rules. Without limiting the foregoing, the City agrees to utilize private planners and plan checkers (upon Developer's request and at Developer's cost) and any other available means to expedite the processing of Project applications, including concurrent processing of such applications by various City departments. 7.2 Processing Cooperation and Assistance. To the extent permitted by law, the City shall reasonably cooperate with the Developer in securing any and all entitlements, authorizations, permits or approvals which may be required by any other governmental or quasi- governmental entity in connection with the Development of the Project or the Property. Without limiting the foregoing, the City shall reasonably cooperate with the Developer in any dealings with federal, state and other local governmental and quasi-governmental entities concerning issues affecting the Property. The City shall keep the Developer fully informed with respect to its communications with such agencies which could impact the development of the Property. 7.3 Processine During Third Partv Litigation. The filing of any third party lawsuit(s) against the City or the Developer relating to this Agreement or to other development issues affecting any portion of the Property or the Project shall not hinder, delay or stop the development,processing or construction of the Project, approval of the Future Approvals, or issuance of ministerial permits or approvals, unless the third party obtains a court order preventing the activity. 7.4 Reimbursement and Apportionment. Although the parties do not contemplate a condition of a Future Approval requiring excess capacity or size of required dedications or public facilities beyond that required by the Applicable Rules, nothing in this Agreement precludes the City or the Developer from entering into any reimbursement agreements for the portion (if any) of the cost of any dedications, public facilities and/or infrastructure that,the City, pursuant to this Agreement,may require pursuant to the Applicable Rules as conditions of the Future Approvals, to the extent that they are in excess of those reasonably necessary to mitigate the impacts of the Project or development on the Property. 8. Modification/Suspension. Pursuant to Government Code Section 65869.5, in the event that any state or federal law or regulation, enacted after the Effective Date (as defined in Section 18), precludes compliance with any provision of this Agreement, such provision shall be deemed modified or suspended to the extent practicable to comply with such state or federal law or regulation, as reasonably determined necessary by City. Upon repeal of said law or regulation or the occurrence of any other event removing the effect thereof upon the Agreement, the provisions hereof shall be restored to their full original effect. - 11 - 02 0660073 9. Demonstration of Good Faith Compliance. 9.1 Review of"Corn liarce. In accordance with Government Code Section 65965.1, this Section 9 and the Applicable Rules, once each year, on or before each anniversary of the Effective Date ("Periodic Review"), the City C.E.D.S. Director shall review the extent of the Developer's good faith substantial compliance with the terms and provisions of this Agreement as well as the performance by the City of its obligations under this Agreement. 9.2 Good Faitli Comoliance. During each Periodic Review, the Developer shall demonstrate by written status report that, during the preceding twelve (12)month period, that it has been in good faith compliance with this Agreement. For purposes of this Agreement, the phrase "good faith compliance" shall mean that the Developer has demonstrated that it has acted in a commercially reasonable manner(taking into account the circumstances which then exist) and in good faith in and has substantially complied with the Developer's material obligations under this Agreement. 9.3 Information to be Provided to Develop. The City shall deliver to the Developer a copy of all staff reports prepared in connection with a Periodic Review, any prior staff reports generated during the review period,written comments from the public and, to the extent practical, all related exhibits concerning such Periodic Review concurrently with delivery of the Request Notice, but in no event later than six (6)business days prior to the City C.E.D.S. Director's submittal of a report setting forth his or her determination as to the results.of the Periodic Review. Upon the Developer's request, the Developer shall be given a full and adequate opportunity to be heard orally and in writing regarding its performance and, at its option, the City's performance under the Agreement prior to the completion of the City C.E.D.S, Director's Periodic Review. 9.4 Notice Of Non-Comviiance; Cure Rights. If at the completion of any Periodic Review, the City C.E.D.S. Director reasonably concludes on the basis of substantial evidence that as to any parcel or parcels comprising the Property(i)the Developer has not demonstrated that it is in good faith compliance with this Agreement, and (ii) that the Developer is out of compliance with a specific substantive term or provision of this Agreement, then the City C.E.D.S. Director may issue and deliver to the Developer a written Notice of Violation as set forth in Section 11.1 below. 9.5 Failure of Periodic Review. The City's failure to review, at least annually, compliance by the Developer with the terms and conditions of this Agreement shall not constitute or be asserted by any Party as a breach by any other Party of this Agreement. 10. Excusable Delays. Performance by any Party of its obligations hereunder, other than payment of fees and other monetary assessments, shall be excused during any period of "Excusable Delay," as hereinafter defined,provided that the Party claiming the delay gives notice of the delay to the other Parties as soon as reasonably possible after the same has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including without limitation: (a) act of"God; (b) civil commotion; (c)riot; (d) strike,picketing or other labor dispute; (e) shortage of materials or supplies; (f) damage to work in progress'by reason of fire, flood, - 12 - 02 0660073 earthquake or other casualty; (g) lack of adequate utility service for the property to the extent such impacts the health, safety and welfare of the residents and businesses of the City or is caused by a third party; (h) reasonably unforeseeable delay caused by a reasonably unforeseeable restriction imposed or mandated by a governmental entity other than City; (i) litigation brought by a third party attacking the validity of this Agreement, a Project Approval, a Subsequent Approval or any other action necessary for development of the Property, 0) delays caused by any default by City or the Developer hereunder, or(k) delays due to the presence or remediation of currently unknown hazardous materials. The term of this Agreement shall be extended by any period of Excusable Delay. 11. Default Provisions. 11.1 Default. Either party to this Agreement shall be deemed to have breached this Agreement if it materially breaches any of the provisions of the Agreement and the same is not cured within the time set forth in a written notice of violation(the "Notice of Violation") from the non-breaching party to the breaching party, which period of time shall not be less than ten(10) days for monetary defaults, and not less than sixty(60) days for non-monetary defaults from the date that the notice is deemed received,provided if the breaching party cannot reasonably cure a non-monetary breach within the time set forth in the notice, then the breaching party shall not be in default if it commences to cure the breach within such time limit and diligently effects such cure thereafter. If the City determines to proceed with termination of this Agreement, the City shall given written notice to the Developer of its intention to terminate this Agreement and comply with the notice and public hearing requirements of Government Code Sections 65867 and 65868. At the time and place set for the hearing on termination, the Developer shall be given an opportunity to be heard. If the Council finds based upon the evidence that the Developer is in breach of the Agreement, the Council may modify or terminate this Agreement. 11.2 Content of Notice of Violation. Every Notice of Violation shall state with specificity that it is given pursuant to this section of the Agreement, the nature of the alleged breach, (including references to the pertinent provisions of this Agreement and Applicable Rules), the portion of the,Property involved, and the manner in which the breach may be satisfactorily cured. The notice shall be deemed given on the date that it is personally delivered or on the date that is three (3)business days after it is deposited in the United States mail, in accordance with Section 19 hereof. 11.3 Remedies for Breach. The Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. The remedies for breach of the Agreement by City or Developer shall be limited to injunctive relief and/or specific performance. 12. Mort ga ee Protection. This Agreement shall not prevent or limit the Developer, in any manner, at Developer's sole discretion, from encumbering the Property or any portion thereof (except for the Fire Station Site and the Park Site) or any improvements thereon by any mortgage, deed of trust or other security device. The City acknowledges that the lender(s) providing such financing("Mortgagee")may require certain Agreement interpretations and agrees, upon request, from time to time, to meet with the Developer and representatives of such - 13 - 02 0660073 i lender(s) to provide within a reasonable time period the City's response to such requested interpretations. The City will not unreasonably withhold its consent to any such requested interpretation, provided that such interpretation is consistent with the intent and purposes of this Agreement. Any Mortgagee of a mortgage or a beneficiary of a deed of trust or any successor or assign thereof, including without limitation the purchaser at a judicial or non judicial foreclosure sale or a person or entity who obtains title by deed-in-lieu of foreclosure on the Property shall be entitled to the following rights and privileges: 12.1 Mort aec Not Rendered Invalid. Neither entering into this Agreement nor a breach of this.Agreement shall defeat, render invalid, diminish, or impair the priority of the lien of any mortgage or deed of trust on the Property made in good faith and for value. No Mortgagee shall have an obligation or duty under this Agreement to perform the Developer's obligations, or to guarantee such performance, prior to taking title to all or a portion of the Property. 12.2 Reauest for Notice to Mort ace. The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, who has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive a copy of any Notice of Violation delivered to the Developer. 12.3 Mortaee's"rime to Cure. The City shall provide a copy of any Notice of Violation to the Mortgagee within ten (10) days of sending the Notice of Violation to the Developer. The Mortgagee shall have the right, but not the obligation, to cure the default for a period of thirty(30) days after receipt of such Notice of Violation. Notwithstanding the foregoing, if such default shall be a default which can only be remedied by such Mortgagee obtaining possession of a Property, or any portion thereof, and such Mortgagee seeks to obtain possession, such Mortgagee shall have until thirty(30) days after the date of obtaining such possession to cure or, if such default cannot reasonably be cured within such period, to commence to cure such default, provided that such default is cured no later than one (1) year after Mortgagee obtains such possession. 12.4 Cure Rights. Any.Mortgagee who takes title to all of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or a deed in lieu of foreclosure, shall succeed to the rights and obligations of the Developer under this Agreement as to the Property or portion thereof so acquired; provided, however, in-no event shall such Mortgagee be liable for any defaults or monetary obligations of the Developer arising prior to acquisition of title to the Property by such Mortgagee, except that any such Mortgagee shall not be entitled to a building permit or occupancy certificate until all delinquent and current fees and other monetary or nonmonetary obligations due under this Agreement for the Property, or portion thereof acquired by such Mortgagee, have been satisfied. 12.5 Bankruptcy. If any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature of foreclosure by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceedings involving the Developer, the times specified in Section 12.3 above shall be extended for the period of the prohibition, except that any such extension shall not extend the term of this Agreement. - 14- 7 02 0660073 u. M 12.6 Disafl=irnnation. If this Agreement is terminated as to any portion of the Property by reason of(i) any default or(ii) as a result of a bankruptcy proceeding, this Agreement is disaffirmed by a receiver, liquidator, or trustee for the Developer or its property, the City, if requested by any Mortgagee, shall negotiate in good faith with such Mortgagee for a new development agreement for the Project as to such portion of the Property with the most senior Mortgagee requesting such new agreement. This Agreement does not require any Mortgagee or the City to enter into a new development agreement pursuant to this Section. 13. Ess el Certificate. At any time and from time to time, any Developer may deliver written notice to City and City may deliver written notice to the Developer requesting that such party certify in writing that, to the knowledge of the certified Party(i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii)this Agreement has not been amended, or if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach, a description of each such breach. The Party receiving such a request shall execute and return the certificate within thirty(30) days following receipt of the notice. The failure of the City to deliver such a written notice within such time shall constitute a conclusive presumption against the City that, except as may be represented by the Developer, this Agreement is in full force and effect without modification, and that there are no uncured defaults in the performance of the Developer. The City C.E.D.S. Director shall be authorized to execute, on behalf of the City, any Estoppel Certificate requested by the Developer, City acknowledges that.a certificate may be relied upon by successors in interest to the Developer who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that Developer has a legal interest. 14. Administration of Agreement. 14.1 Anneal of Staff Determinations. Any decision by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by the Developer to the Planning Commission, and thereafter, if necessary, to the City Council pursuant to the El Segundo Municipal Code. The Developer shall not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section. All decisions by the City Staff concerning the administration of this Agreement and the Project which is the subject hereof are appealable to the Planning Commission and thereafter, if necessary, to the City Council. Final determinations by the Council are subject to judicial review subject to the restrictions and limitations of California law. 14.2 Overatiner Memoranda. The provisions of this Agreement require a close degree of cooperation between City and Developer. During the Term of this Agreement, clarifications to this Agreement and the Applicable Rules may be appropriate with respect to the details of performance of City and Developer. If and when, from time to time, during the terms of this Agreement, City and Developer agree that such clarifications are necessary or appropriate, they shall effectuate such clarification through operating memoranda approved in writing by City and Developer, which, after execution, shall be attached hereto and become part of this Agreement and the same may be further clarified from time to time as necessary with future written approval by City and the Developer. Operating memoranda are not intended to - 15 - J . 02 0600673 0 and cannot constitute an amendment to this Agreement or allow a Major Modification to the ) Project but are mere ministerial clarifications, therefore public notices and hearings shall not be required. The City Attorney shall be authorized, upon consultation with, and approval of, the Developer, to determine whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such character to constitute an amendment hereof which requires compliance with the provisions of Section 15 below. The authority to enter into such operating memoranda is hereby delegated to the City C.E.D. Director, and the City C.E.D. Director is hereby authorized to execute any operating memoranda hereunder without further City Council action. 14.3 Certificate of Performance. Upon the completion of the Project, or the development of any Parcel, or upon performance of this Agreement or its earlier revocation and termination, the City shall provide the Developer, upon the Developer's request, with a statement ("Certificate of Performance") evidencing said completion or revocation and the release of the Developer from further obligations hereunder, except for any ongoing obligations hereunder. The Certificate of Performance shall be signed by the appropriate agents of the Developer and the City and shall be recorded in the official records of Los Angeles County, California. Such Certificate of Performance is not a notice of completion as referred to in California Civil Code Section 3093. 15. Amendnient or Tennination by Mutual Consent. Except as otherwise set forth herein, this Agreement may only be amended or terminated, in whole or in part, by mutual consent of City and the Developer, and upon compliance with the provisions of Government Code Section 65867. 16. Indemnification/Defense. 16.1 Indemnification. The Developer shall indemnify, defend with counsel reasonably acceptable to the City, and hold harmless the City and its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments arising out of, or resulting in any way from, the Developer's performance pursuant to this Agreement except to the extent such is a result of the City's negligence or intentional misconduct. Developer shall indemnify, defend with counsel reasonably acceptable to the City, and hold harmless the City and its officers, employees and agents from and against any action or proceeding to attack, review, set aside, void or annul this Agreement or the Project Approvals or any provisions thereof. 16.2 Defense of Agreement. If the City accepts Developer's indemnification and defense as provided in Section 16.1 above, the City agrees to and shall timely take all actions which are necessary or required to uphold the validity and enforceability of this Agreement and the Applicable Rules. - 16- 7 r, 02 0660073 17. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 18. Effective Date. This Agreement shall become operative on the date Zhe Enabling Ordinance becomes effective (the "Effective Date")pursuant to Government Code Section 36937. 19. Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered or upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid, return receipt requested, to the Parties at the following addresses: If to City: City of El Segundo 350 Main Street El Segundo, CA 90245 Attention: City Clerk With a Copy to: Burke, Williams & Sorensen 611 West Sixth Street 25th Floor Los Angeles, CA 90017 Attention: Mark D. Hensley, Esq. If to Developer: TPG-El Segundo Partners, LLC 355 South Grand Avenue Suite 2820 Los Angeles, CA 90071 Attention: Thomas S. Ricci, Senior Vice President With a Copy to: Greenberg Glusker Fields Claman Machtinger& Kinsella LLP 900 Avenue of the Stars Suite 2100 Los Angeles, CA 90067 Attention: Dale J. Goldsmith, Esq. Any Party may, from time to time,by written notice to the other, designate a different address which shall be substituted for the one above specified. 20. Entire A. reement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. 21. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in - 17 - 2gi.. 02 0660073 writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 22. Severabilitv. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement; provided, however, that in the event Section 3.1 above is determined to be invalid or unenforceable, and Developer or an affiliated entity does not take title to all or a portion of the Project as provided in Section 3.1 above, then the Park Site shall be dedicated to the City at no cost instead of sold. 23. Relationship of the .Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of any of the other Party in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners,joint ventures or any other association of any kind or nature between City and Developer,jointly or severally. 24. No Third Partv Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest. No other person or party shall have any right of action based upon any provision of this Agreement. 25. Recordation of A reernent and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Los Angeles by'the City Clerk of City. 26. Cooperation Between Citv and Developer. City and Developer shall execute and deliver to the other all such other and further instruments and documents as may be reasonably necessary to carry out the purposes of this Agreement. Upon satisfactory performance by Developer, and subject to the continuing cooperation of the Developer, City will commence and in a timely manner proceed to complete all steps necessary for the implementation of this Agreement and development of the Project or Property in accordance with the terms of this Agreement. 27. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they shall not constitute a part of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Project Approvals or the Subsequent Approvals, the provisions of this Agreement shall prevail over the Project Approvals. 28. ,Joint Preparation. This Agreement shall be deemed to have been prepared jointly and equally by the Parties, and it shall not be construed against any Party on the ground that the Party prepared the Agreement or caused it to be prepared. 29. Govemine Law and Venue. This Agreement is made, entered into, and executed in the County of Los Angeles, California, and the laws of the State of California shall govern its interpretation and enforcement. Any action, suit or proceeding related to, or arising from, this - 18 - 02 0660073 Agreement shall be filed in the appropriate court having jurisdiction in the County of Los Angeles. 30. Attorneys' ,Fees. In the event any action, suit or proceeding is brought for the enforcement or declaration of any right or obligation pursuant to, or as a result of any alleged breach of, this Agreement, the prevailing Party shall be entitled to its reasonable attorneys, fees and litigation expenses and costs, and any judgment, order or decree rendered in such action,suit or proceeding shall include an award thereof. Attorneys' fees under this section shall include attorneys' fees on any appeal and any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 31. COUntervarts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original,but all of which constitute one and the same instrument. 32. Not a Public Dedication. Except as otherwise expressly provided herein (including, but not limited to, Sections 6.2 and 6.6 above), nothing herein contained shall be deemed to be a gift or dedication of the Property, or of the Project, or any portion thereof, to the general public, for the general public, or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that this Agreement be strictly limited to and for the purposes herein expressed for the development of the Project as private property. Except for any portion of the Property which has been conveyed to the City by the Developer as provided in Sections 6.2 and 6.6 above, the Developer shall have the right to prevent or prohibit the use of the Property, or the Project, or any portion thereof, including common areas and buildings and improvements located thereon, by any person for any purpose which is not consistent with the development of the Project. Any portion of the Property conveyed to the City by the Developer as provided herein shall be held and used by the City only for the purposes contemplated herein or otherwise provided in such conveyance, and the City shall not take or permit to be taken (if within the power or authority of the City) any action or activity with respect to such portion of the Property that would-deprive the Developer of the material benefits of this Agreement, or would in any manner interfere with the development of the Project as contemplated by this Agreement. - 19- 1976 02 0660073 IN WITNESS WHEREOF, Developer and City of El Segundo have executed this Development Agreement on the date first above written. CITY: CITY OF EL SEGUNDO, a municipal corporation By, ua44'mlj� Mike Gordon, Mayor ATTEST Cindy Mort 'en City Clerk APPROVED AS TO FORM: Mark D. Hensley, City Attorney DEVELOPER: TPG-EL SEGUNDO PARTNERS, LLC, a California limited)iability corporation By: ( Its. i ! .,..�t ° .�. .. By: Its: -20 - 02 0660073 February 20, 2002 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS CITY OF EL SEGUNDO ) On February 20, 2002, before Cathy Domann, Deputy City Clerk, personally appeared Mike Gordon, Mayor of the City of El Segundo, personally known to me to be the person whose name is subscribed to on the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or entity upon behalf of which the persons acted, executed the instrument. Witness my hand and Official Seal. ............................... Cathy Dome h, Deputy City Clerk CJorms\certsig � 77 � 02 0660073 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Californiayy t ss. County of On i ,�„ r ,��^ taefore me ':.'. ZC Dale � � �^". r . �' qr°a dtniy ligtlq f147�11�i:oa fcr I�f NrtnvPr Does Notary 4'Ti y I„� personally appeared ..... � '.'? . - ....r,amem(s)' ...�. of Signer(s) "�',;� ersonally known to me ,proved to me on the basis of satisfactory evidence to be the person whose names} is/are- subscribed to the within instrument and acknowledged to me that he/sli /they executed SARAr8L1�CASS the same in his/her/their authorized Commissi capacit'y(ies), and hhal by his/her/their' fly' Notary Public-Californi a signature(sj on the instrument the person(s), or Los Angeles County the entity upon behalf of which the person(s)My Comm.Expires Feb 1,2006 acted, executed the instrument. �WITNESS my hand a nd officiya�.seal � .......' &ggvulilie(44 Notary Public . OPTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document . t,r Document Date: ..,. Number of Pages: Signer(s) Other Than Named Above: ........._.... _ Capacity(ies) Claimed by Signer Signer's Name: --w............... m w L1 IndIVldUal Top of thumb Nsrrrr„ ❑ Corporate Officer—Title(s): ....w_............". .m.. ..._......ww............ ❑ Partner—❑ Limited ❑General ❑ Attorney-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: — -._ ........ ....................... - Signer Is Representing: ...................... ©1999 National Notary Association-9350 De Soto Ave P.O.Box 2402•Chatswonh,CA 91313-2402•www.nattonalnotary org Prod.No 5907 Reorder:Call Toll-Free 1-800-076-6827 02 06� 600�3. EXHIBIT A PROPERTY DESCRIPTION PARCEL A: A PORTION OF THE WEST HALF OF THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 3 SOUTH, RANGE 14 WEST, IN THE RANCHO SAUSAL REDONDO, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF THAT CERTAIN 12.625 ACRE PARCEL OF LAND DESCRIBED IN DEED DATED FEBRUARY 25, 1929 AND RECORDED IN BOOK 7451 PAGE 166 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID POINT BEING DISTANT SOUTH 0 DEGREES 12 MINUTES EAST 564.44 FEET FROM THE NORTHERLY LINE OF SAID NORTHEAST QUARTER OF SECTION 7 AND BEING A POINT IN THE WESTERLY LINE OF DOUGLAS STREET (150 FEET WIDE); THENCE SOUTH 0 DEGREES 12 MINUTES EAST ALONG SAID SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID 12.625 ACRE PARCEL, A DISTANCE OF 1400.00 FEET; THENCE SOUTH 89 DEGREES 47 MINUTES WEST PARALLEL WITH THE NORTHERLY LINE OF SAID NORTHEAST QUARTER, 650.00 FEET; THENCE NORTH 0 DEGREES 12 MINUTES WEST ALONG A LINE WHICH IS PARALLEL WITH AND DISTANT 650.00 FEET WESTERLY AT RIGHT ANGLES FROM THE FIRST DESCRIBED COURSE OF THIS DESCRIPTION, A DISTANCE OF 708.21 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF A CURVE, TANGENT TO LAST COURSE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 588.81 FEET, THROUGH A CENTRAL ANGLE OF 50 DEGREES 54 MINUTES 37 SECONDS, A DISTANCE OF 523.19 FEET; THENCE IN A DIRECT LINE NORTH 61 DEGREES 17 MINUTES EAST 492.17 FEET TO THE POINT OF BEGINNING. EXCEPT THEREFROM THAT PORTION THEREOF LYING NORTHERLY OF THE SOUTHERLY LINE OF THE LAND DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA, RECORDED SEPTEMBER 1, 1995 AS INSTRUMENT NO. 95-1439414. -21 - 'u ALSO EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBON AND y MINERAL SUBSTANCES, BUT WITHOUT RIGHT OF SURFACE ENTRY, AS CONVEYED (A) TO STANDARD OIL COMPANY OF CALIFORNIA, BY DEED DATED DECEMBER 21, 1942, RECORDED JULY 27, 1943 IN BOOK 20145 PAGE 298 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND (B) TO CHANSLOR-CANFIELD MIDWAY OIL COMPANY, BY DEED DATED AUGUST 23, 1945, RECORDED SEPTEMBER 7, 1945 IN BOOK 22243 PAGE 336 OF SAID OFFICIAL RECORDS. PARCEL B: A PORTION OF THE WEST HALF OF THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 3 SOUTH, RANGE 14 WEST, IN THE RANCHO SAUSAL REDONDO, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEASTERLY CORNER OF THAT CERTAIN 17.858 ACRE PARCEL OF LAND DESCRIBED IN DEED DATED JUNE 15, 1948, FROM SANTA FE LAND IMPROVEMENT COMPANY, TO NORTH AMERICAN AVIATION, INC., RECORDED IN BOOK 27854 PAGE 191, OFFICIAL RECORDS OF SAID LOS ANGELES COUNTY, SAID POINT BEING IN THE WESTERLY LINE OF DOUGLAS STREET (150 FEET WIDE), DISTANT SOUTH 0 DEGREES 12 MINUTES EAST ALONG SAID WEST LINE 1964.44 FEET FROM THE NORTHERLY LINE OF THE NORTHEAST QUARTER OF SAID SECTION 7; THENCE CONTINUING ALONG SAID WESTERLY LINE SOUTH 0 DEGREES 12 MINUTES EAST 678.96 FEET, MORE OR LESS, TO A POINT IN THE SOUTHERLY LINE OF THE NORTHEAST QUARTER OF SAID SECTION 7; THENCE SOUTH 89 DEGREES 47 MINUTES WEST ALONG SAID SOUTHERLY LINE 650.00 FEET TO A POINT IN A LINE WHICH IS PARALLEL WITH AND DISTANT 650.00 FEET WESTERLY AT RIGHT ANGLES FROM THE WESTERLY LINE OF DOUGLAS STREET; THENCE NORTH 0 DEGREES 12 MINUTES WEST ALONG LAST SAID PARALLEL LINE 678.96 FEET, MORE OR LESS, TO THE SOUTHWEST CORNER OF SAID 17.858 ACRE PARCEL; THENCE NORTH 89 DEGREES 47 MINUTES EAST ALONG THE SOUTH LINE OF SAID 17.858 ACRE PARCEL, A DISTANCE OF 650.00 FEET TO THE POINT OF BEGINNING. -22 - 02 0660073 EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBON AND MINERAL SUBSTANCES, BUT WITHOUT RIGHT OF SURFACE ENTRY, AS CONVEYED (A) TO STANDARD OIL COMPANY OF CALIFORNIA, BY DEED DATED DECEMBER 21, 1942, RECORDED JULY 27, 1943 IN BOOK 20145 PAGE 298 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND (B) TO CHANSLOR- CANFIELD MIDWAY OIL COMPANY, BY DEED DATED AUGUST 23, 1945, RECORDED SEPTEMBER 7, 1945 IN BOOK 22243 PAGE 336 OF SAID OFFICIAL RECORDS. PARCEL C: A STRIP OF LAND 1.00 FEET IN WIDTH BY 1820.82 FEET IN AVERAGE LENGTH, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BEING A PORTION OF THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 3 SOUTH, RANGE 14 WEST, IN THE RANCH OF SAUSAL REDONDO AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTHERLY LINE OF THE NORTHEAST QUARTER OF SAID SECTION 7, WITH A LINE WHICH IS PARALLEL WITH AND DISTANT 650.00 FEET WESTERLY AT RIGHT ANGLES FROM THE WESTERLY LINE OF DOUGLAS STREET (150 FEET WIDE), SAID POINT BEING IN THE WESTERLY LINE OF THAT CERTAIN 10.1314 ACRE PARCEL OF LAND DESCRIBED IN DEED DATED OCTOBER 23, 1950, FROM SANTA FE LAND IMPROVEMENT COMPANY, TO NORTH AMERICAN AVIATION, INC., RECORDED IN BOOK 34649 PAGE 88, OFFICIAL RECORDS OF SAID LOS ANGELES COUNTY; THENCE NORTH 0 DEGREES 12 MINUTES WEST ALONG SAID PARALLEL LINE, BEING ALONG THE WESTERLY LINE OF SAID 10.1314 ACRE PARCEL AND ALONG THE WESTERLY LINE OF THAT CERTAIN 17.858 ACRE PARCEL OF LAND DESCRIBED IN DEED DATED JUNE 15, 1948, FROM SANTA FE LAND IMPROVEMENTS COMPANY, TO NORTH AMERICAN AVIATION, INC., RECORDED IN BOOK 27854 PAGE 191, OFFICIAL RECORDS OF SAID LOS ANGELES COUNTY, A DISTANCE OF 1387.17 FEET, MORE OR LESS, TO A CURVE POINT IN LAST SAID WESTERLY LINE; THENCE CONTINUING ALONG LAST SAID WESTERLY LINE, BEING ALONG THE ARC OF A CURVE, TANGENT TO LAST COURSE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 588.81 FEET, THROUGH A CENTRAL ANGLE OF 42 DEGREES 24 MINUTES 18 SECONDS, A DISTANCE OF 435.78 FEET, MORE OR LESS, TO A POINT IN THE SOUTHERLY LINE OF THAT CERTAIN 2.007 ACRE PARCEL OF LAND DESCRIBED IN DEED DATED MARCH 15, 1949, FROM SANTA FE LAND IMPROVEMENT COMPANY, TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, RECORDED IN BOOK 29807 PAGE 332, OFFICIAL RECORDS OF SAID LOS ANGELES COUNTY; THENCE SOUTHWESTERLY ALONG -23 - rip LAST SAID SOUTHERLY LINE, BEING ALONG THE ARC OF A CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 628.805 FEET, A DISTANCE OF 5.66 FEET, MORE OR LESS, TO A POINT IN A LINE WHICH IS CONCENTRIC WITH AND DISTANT RADIALLY 1.00 FEET NORTHWESTERLY FROM THE SECOND DESCRIBED COURSE OF THIS DESCRIPTION; THENCE SOUTHWESTERLY ALONG LAST SAID CONCENTRIC LINE, BEING ALONG THE ARC OF A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 589.81 FEET, A DISTANCE•OF 431.53 FEET, MORE OR LESS, TO A POINT IN A LINE WHICH IS PARALLEL WITH AND DISTANT 65 1.00 FEET WESTERLY AT RIGHT ANGLES FROM THE WESTERLY LINE OF DOUGLAS STREET (150 FEET WIDE); THENCE SOUTH 0 DEGREES 12 MINUTES EAST ALONG LAST SAID PARALLEL LINE 1387.17 FEET, MORE OR LESS, TO THE SOUTH LINE OF THE NORTHEAST QUARTER OF SAID SECTION 7; THENCE NORTH 89 DEGREES 47 MINUTES EAST ALONG SAID SOUTH LINE, 1.00 FEET TO THE POINT OF BEGINNING; CONTAINING AN AREA OF 0.042 OF AN ACRE, MORE OR LESS. EXCEPT THEREFROM ALL OIL, GAS AND OTHER HYDROCARBON AND MINERAL SUBSTANCES, AS CONVEYED (A) TO STANDARD OIL COMPANY OF CALIFORNIA, BY DEED DATED DECEMBER 21, 1942, RECORDED JULY 27, 1943 IN BOOK 20145 PAGE 298 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND (B) TO CHANSLOR-CANFIELD MIDWAY OIL COMPANY, BY DEED DATED AUGUST 23, 1945, RECORDED SEPTEMBER 7, 1945 IN BOOK 22243 PAGE 336 OF SAID OFFICIAL RECORDS. PARCEL D: THAT PORTION OF THE WEST HALF OF THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 3 SOUTH, RANGE 14 WEST, IN THE RANCHO SAUSAL REDONDO, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF THE NORTHEAST QUARTER OF SAID SECTION 7, WITH A LINE WHICH IS PARALLEL WITH AND DISTANT 30.0 FEET EASTERLY AT RIGHT ANGLES FROM THE WESTERLY LINE OF THE NORTHEAST QUARTER OF SAID SECTION 7; THENCE NORTH 0 DEGREES 12 MINUTES 30 SECONDS WEST ALONG SAID PARALLEL LINE 1578.80 FEET, MORE OR LESS, TO A POINT IN THE SOUTHERLY LINE OF THAT CERTAIN 2.007 ACRES PARCEL OF LAND DESCRIBED IN DEED DATED MARCH 15, 1949, FROM SANTA FE LAND IMPROVEMENT COMPANY, TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, RECORDED IN BOOK 29807 PAGE 332, OFFICIAL RECORDS OF SAID LOS ANGELES COUNTY; THENCE FOLLOWING ALONG THE SOUTHERLY -24- w d LINE OF SAID 2.007 ACRES PARCEL,NORTH 78 DEGREES 47 MINUTES EAST 434.45 FEET, AND NORTHEASTERLY ALONG THE ARC OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 628.805 FEET, A DISTANCE OF 182.61 FEET, MORE OR LESS, TO A POINT IN A LINE WHICH IS CONCENTRIC WITH AND DISTANT RADIALLY 44.00 FEET NORTHWESTERLY FROM THE NORTHWESTERLY LINE OF THAT CERTAIN 17.858 ACRES PARCEL OF LAND DESCRIBED IN DEED DATED JUNE 15, 1948, FROM SANTA FE LAND IMPROVEMENT CO., TO NORTH AMERICAN AVIATION, INC., RECORDED IN BOOK 27854 PAGE 191, OFFICIAL RECORDS OF SAID LOS ANGELES COUNTY; THENCE SOUTHWESTERLY ALONG SAID CONCENTRIC LINE, BEING ALONG THE ARC OF A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 632.81 FEET, A DISTANCE OF 352.73 FEET, MORE OR LESS, TO A POINT IN A LINE WHICH IS PARALLEL WITH AND DISTANT 694.00 FEET WESTERLY AT RIGHT ANGLES FROM THE WESTERLY LINE OF DOUGLAS STREET (150 FEET WIDE); THENCE SOUTH 0 DEGREES 12 MINUTES EAST ALONG LAST SAID PARALLEL LINE, BEING TANGENT TO LAST DESCRIBED CURVE, A DISTANCE OF 1387.18 FEET, MORE OR LESS, TO THE SOUTH LINE OF THE NORTHEAST QUARTER OF SAID SECTION 7; THENCE SOUTH 89 DEGREES 47 MINUTES WEST ALONG SAID SOUTH LINE 502.13 FEET, MORE OR LESS, TO THE POINT OF BEGINNING. EXCEPT THEREFROM THOSE PORTIONS THEREOF DESCRIBED IN THE DEED TO THE LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, A PUBLIC AGENCY, IN DEED RECORDED NOVEMBER 1, 1994 AS INSTRUMENT NO. 94- 1978699. ALSO EXCEPT THEREFROM THAT PORTION, IF ANY, LYING NORTHERLY OF THE SOUTHERLY LINE OF THE LAND DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA, IN DEED RECORDED SEPTEMBER 1, 1995 AS INSTRUMENT NO. 95- 1439430. ALSO EXCEPT THEREFROM ALL NATURAL GAS CONTAINED IN OR UNDER OR THAT MAY BE PRODUCED FROM SAID LAND, BUT WITHOUT ANY RIGHT TO GO UPON OR USE THE SURFACE OF SAID LAND IN ANY MANNER FOR THE PURPOSE OF DISCOVERING OR EXTRACTING SUCH NATURAL GAS, AS GRANTED TO STANDARD OIL COMPANY OF CALIFORNIA, A DELAWARE CORPORATION, BY DEED RECORDED ON JULY 27, 1943 IN BOOK 20145 PAGE 298, OFFICIAL RECORDS. ALSO EXCEPT THEREFROM ALL OIL, HYDROCARBON AND MINERAL SUBSTANCES, CONTAINED IN OR UNDER OR THAT MAY BE PRODUCED FROM SAID LAND, WITHOUT ANY RIGHT TO ENTER UPON THE SURFACE OF SAID LAND —25 — Y. 02 0660073 FOR THE PURPOSE OF EXTRACTING ANY SUCH OIL, HYDROCARBON AND MINERAL SUBSTANCES, NOR FOR ANY OTHER PURPOSES, AS GRANTED TO CHANSLOR-CANFIELD MIDWAY OIL COMPANY, A CORPORATION, BY DEED RECORDED ON SEPTEMBER 7, 1945 IN BOOK 22243 PAGE 336, OFFICIAL RECORDS. PARCEL E: THAT PORTION OF THE LAND IN THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 3 SOUTH, RANGE 14 WEST, IN THE RANCHO SAUSAL REDONDO, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, DESCRIBED IN THE GRANT DEED FROM THE SANTA FE LAND IMPROVEMENT COMPANY TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, RECORDED APRIL 11, 1949 IN BOOK 29807 PAGE 332 OF OFFICIAL RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THAT CERTAIN COURSE DESCRIBED AS HAVING A BEARING OF NORTH 78 DEGREES 47 MINUTES EAST AND A LENGTH OF 633.30 FEET IN THE SOUTHERLY LINE OF THE LAND DESCRIBED IN SAID DEED, SAID POINT BEING DISTANT THEREON SOUTH 78 DEGREES 55 MINUTES 38 SECONDS WEST 435.35 FEET FROM THE EASTERLY TERMINUS THEREOF; THENCE SOUTH 89 DEGREES 56 MINUTES 28 SECONDS WEST 6.55 FEET; THENCE NORTH 29 DEGREES 28 MINUTES 46 SECONDS EAST 11.49 FEET TO A LINE THAT IS PARALLEL WITH AND DISTANT 10.00 FEET NORTHERLY FROM THE COURSE HEREIN ABOVE CITED AS HAVING A BEARING OF SOUTH 89 DEGREES 56 MINUTES 28 SECONDS WEST AND A LENGTH OF 6.55 FEET; THENCE NORTH 89 DEGREES 56 MINUTES 28 SECONDS EAST 44.85 FEET ALONG SAID PARALLEL LINE TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 834.00 FEET; THENCE EASTERLY 7.58 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 0 DEGREES 31 MINUTES 15 SECONDS TO ITS INTERSECTION WITH SAID CERTAIN COURSE; THENCE SOUTH 78 DEGREES 55 MINUTES 38 SECONDS WEST 52.52 FEET ALONG SAID CERTAIN COURSE TO THE POINT OF BEGINNING. PARCEL F: THAT PORTION OF THE LAND IN THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 3 SOUTH, RANGE 14 WEST, IN THE RANCHO SAUSAL REDONDO, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, DESCRIBED IN THE GRANT DEED FROM THE SANTA FE LAND IMPROVEMENT -26- . sy 0660073 COMPANY TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, RECORDED APRIL 11, 1949 IN BOOK 29807 PAGE 332 OF OFFICIAL RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THAT CERTAIN COURSE DESCRIBED AS HAVING A BEARING OF NORTH 78 DEGREES 47 MINUTES EAST AND A LENGTH OF 633.30 FEET IN THE SOUTHERLY LINE OF THE LAND DESCRIBED IN SAID DEED, SAID POINT BEING DISTANT THEREON SOUTH 78 DEGREES 55 MINUTES 38 SECONDS WEST 26.77 FEET FROM THE EASTERLY TERMINUS THEREOF; THENCE NORTH 67 DEGREES 51 MINUTES 23 SECONDS EAST 291.58 FEET TO A POINT ON A CURVE IN SAID SOUTHERLY LINE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 628.805 FEET, (SAID CURVE BEING DESCRIBED IN SAID DEED AS HAVING A LENGTH OF 294.76 FEET, MORE OR LESS),A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH 35 DEGREES 26 MINUTES 04 SECONDS EAST; THENCE ALONG SAID SOUTHERLY LINE OF THE FOLLOWING COURSES: NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 2 DEGREES 26 MINUTES 38 SECONDS, AN ARC DISTANCE OF 26.82 FEET TO A POINT ON A NON-TANGENT CURVE IN SAID SOUTHERLY LINE, CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 588.81 FEET, A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS NORTH 47 DEGREES 41 MINUTES 01 SECONDS WEST; AND NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 0 DEGREES 45 MINUTES 02 SECONDS, AN ARC DISTANCE OF 7.71 FEET TO A LINE THAT IS PARALLEL WITH AND DISTANT 10.00 FEET NORTHWESTERLY FROM THE COURSE HEREIN ABOVE CITED AS HAVING A BEARING OF NORTH 67 DEGREES 51 MINUTES 23 SECONDS EAST AND A LENGTH OF 291.58 FEET; THENCE LEAVING SAID SOUTHERLY LINE SOUTH 67 DEGREES 51 MINUTES 23 SECONDS WEST 3G7.43 FEET ALONG SAID PARALLEL LINE TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 834.00 FEET; THENCE SOUTHWESTERLY 8.41 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 0 DEGREES 34 MINUTES 41 SECONDS TO ITS INTERSECTION WITH SAID CERTAIN COURSE; THENCE NORTH 78 DEGREES 55 MINUTES 38 SECONDS EAST 52.30 FEET ALONG SAID CERTAIN COURSE TO THE POINT OF BEGINNING. PARCEL G: THAT PORTION OF THE LAND IN THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 3 SOUTH, RANGE 14 WEST, IN THE RANCHO SAUSAL REDONDO, IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, DESCRIBED IN THE GRANT DEED FROM THE SANTA FE LARD IMPROVEMENT COMPANY TO THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, -27- P RECORDED APRIL 11, 1949 IN BOOK 29807 PAGE 332 OF OFFICIAL RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: -- BEGINNING AT A POINT ON THAT CERTAIN COURSE DESCRIBED AS HAVING A BEARING OF NORTH 78 DEGREES 47 MINUTES EAST AND A LENGTH OF 633.30 FEET IN THE SOUTHERLY LINE OF THE LAND DESCRIBED IN SAID DEED, SAID POINT BEING DISTANT THEREON SOUTH 78 DEGREES S5 MINUTES 38 SECONDS WEST 26.77 FEET FROM THE EASTERLY TERMINUS THEREOF; THENCE NORTH 67 DEGREES 51 MINUTES 23 SECONDS EAST 291.58 FEET TO A POINT ON A CURVE IN SAID SOUTHERLY LINE, CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 682.805 FEET, (SAID CURVE BEING DESCRIBED IN SAID DEED AS HAVING A LENGTH OF 294.76 FEET, MORE OR LESS), A RADIAL LINE OF SAID CURVE TO SAID POINT BEARS SOUTH 35 DEGREES 26 MINUTES 04 SECONDS EAST; THENCE SOUTHWESTERLY ALONG SAID CURVE AND SOUTHERLY LINE THROUGH A CENTRAL ANGLE OF 24 DEGREES 21 MINUTES 42 SECONDS, AN ARC DISTANCE OF 276.37 FEET TO THE EASTERLY TERMINUS OF SAID CERTAIN COURSE; THENCE SOUTH 78 DEGREES 55 MINUTES 38 SECONDS WEST 26.77 FEET ALONG SAID CERTAIN COURSE TO THE POINT OF BEGINNING. PARCEL H: A PARCEL OF LAND IN THE CITY OF EL SEGUNDO, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, BEING A PORTION OF THE NORTHEAST QUARTER OF SECTION 7, TOWNSHIP 3 SOUTH, RANGE 14 WEST, IN THE RANCHO SAUSAL REDONDO, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF THAT CERTAIN 18.877 ACRE PARCEL OF LAND DESCRIBED I-DEED FROM SANTA FE LAND IMPROVEMENT COMPANY, TO NORTH AMERICAN AVIATION, INC., RECORDED APRIL 2, 1951 IN BOOK 35937 PAGE 52, OFFICIAL RECORDS OF SAID COUNTY, SAID SOUTHEAST CORNER BEING A POINT IN THE SOUTHERLY LINE OF THAT CERTAIN 1.10 ACRE PARCEL DESCRIBED AS PARCEL NO. 2 IN EASEMENT FROM SANTA FE LAND IMPROVEMENT COMPANY TO THE CITY OF EL SEGUNDO, RECORDED SEPTEMBER 28, 1953 IN BOOK 42792 PAGE 108, OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG THE EASTERLY LINE OF SAID 18.877 ACRE PARCEL THE FOLLOWING COURSES: NORTH 0 DEGREES 12 MINUTES WEST 1387.18 FEET; THENCE NORTHERLY ALONG THE ARC OF A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 632.81 FEET, A DISTANCE OF 352.73 FEET, MORE OR LESS, TO A POINT IN THE SOUTHERLY LINE OF THAT CERTAIN 2.007 ACRE PARCEL OF LAND DESCRIBED IN DEED FROM SANTA FE LAND IMPROVEMENT COMPANY TO THE ATCHISON TOPEKA AND SANTA FE RAILWAY COMPANY, RECORDED APRIL -28 - 11, 1949 IN BOOK 29807 PAGE 332, OFFICIAL RECORDS OF SAID COUNTY, LAST SAID POINT BEING IN THE ARC OF A CURVE-CONCAVE NORTHWESTERLY AND 4` HAVING A RADIUS OF 628.805 FEET; THENCE, LEAVING SAID EASTERLY LINE, NORTHEASTERLY ALONG SAID SOUTHERLY LINE, AN ARC DISTANCE OF 106.49 FEET, MORE OR LESS, TO A POINT IN THE WESTERLY LINE OF THAT CERTAIN 0.042 ACRE PARCEL DESCRIBED IN DEED FROM SANTA FE LAND IMPROVEMENT COMPANY, TO NORTH AMERICAN AVIATION, INC., RECORDED JANUARY 2, 1951 AS INSTRUMENT NO. 1761 IN BOOK 35204 PAGE 41, OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG SAID OF SAID 0.042 ACRE PARCEL THE FOLLOWING COURSES: SOUTHERLY ALONG CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 589.81 FEET, A DISTANCE OF 431.53 FEET, MORE OR LESS; THENCE SOUTH 0 DEGREES 12 MINUTES EAST TO A POINT IN THE SOUTHERLY LINE OF SAID 1.10 ACRE PARCEL; THENCE WESTERLY LINE THE ARC OF A DISTANCE OF 1387.17 FEET SOUTH 89 DEGREES 47 MINUTES WEST ALONG SAID SOUTHERLY LINE 43 FEET, MORE OR LESS, TO THE POINT OF BEGINNING. EXCEPT ALL NATURAL GAS AND ALL OIL, HYDROCARBON AND MINERAL SUBSTANCES IN OR UNDER OR THAT MAY BE PRODUCED FROM SAID LAND, BUT WITHOUT THE RIGHT OF SURFACE ENTRY FOR THE PURPOSE OF DISCOVERING OR EXTRACTING SAID SUBSTANCES, AS GRANTED TO STANDARD OIL COMPANY OF CALIFORNIA, A CORPORATION, BY DEED RECORDED JULY 27, 1943 IN BOOK 20145 PAGE 298, OFFICIAL RECORDS AND TO CHANSLOR-CANFIELD MIDWAY OIL COMPANY, A CORPORATION, BY DEED RECORDED SEPTEMBER 7, 1945 IN BOOK 22243 PAGE 336, OFFICIAL RECORDS. -29 - ' d � II tl 4 02 0660073 EXHIBIT B Recording Requested By and When Recorded Mail To: Greenberg Glusker Fields Claman Machtinger&Kinsella LLP 1900 Avenue of the Stars, Suite 2100 Los Angeles, California 90067-4590 Attn: Dale Goldsmith, Esq. ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") is made and entered into by and between TPG-EL SEGUNDO PARTNERS, LLC, a California limited liability company("Assignor"), and , a ("Assignee"). RECITALS A. The City of El Segundo ("City") and Assignor entered into that certain Development Agreement dated , 2001 (the "Development Agreement"), with respect to the real property located in the City of El Segundo, State of California more particularly described in Exhibit "A" attached hereto (the"Project Site"), and B. Assignor has obtained from the City certain development approvals and permits with respect to the development of the Project Site, including without limitation, approval of Vesting Tentative Maps for the Project Site (collectively, the "Project Approvals"). C. Assignor intends to sell, and Assignee intends to purchase that portion, of the Project Site more particularly described in Exhibit `B" attached hereto (the "Transferred Property"). D. In connection with such purchase and sale, Assignor desires to transfer all of the Assignor's right, title, and interest in and to the Development Agreement and the Project Approvals with respect to the Transferred Property. Assignee desires to accept such assignment from Assignor and assume the obligations of Assignor under the Development Agreement and the Project Approvals with respect to the Transferred Property. THEREFORE, the parties agree as follows: 1. Ass�. Assignor hereby assigns and transfers to Assignee all of Assignor's right, title, and interest in and to the Development Agreement and the Project Approvals with respect to the Transferred Property. Assignee hereby accepts such assignment from Assignor. -30 - 02 0660073 2. ASSLIMPti011. Assignee expressly assumes and agrees to keep, perform, and fulfill all the terms, conditions, covenants, and obligations required to be kept, performed, and fulfilled by Assignor under the Development Agreement and the Project Approvals with respect to the Transferred Property, including but not limited to those obligations specifically allocated to the Transferred Parcel as set forth on Exhibit "C" attached hereto. 3. Effective Date. The execution by City of the attached receipt for this Agreement shall be considered as conclusive proof of delivery of this Agreement and of the assignment and assumption contained herein. This Agreement shall be effective upon its recordation in the Official Records of Los Angeles County, California,provided that Assignee has closed the purchase and sale transaction and acquired legal title to the Transferred Property. 4. Remainder of Proiect. Any and all rights or obligations pertaining to such portion of the Project Site other than the Transferred Property are expressly excluded from the assignment and assumption provided in Sections 1 and 2 above. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the dates set forth next to their signatures below. "ASSIGNOR" TPG-EL SEGUNDO PARTNERS, LLC, a California limited liability company Date: By: Its: "ASSIGNEE" a Date: By: Its: i2 P 6 1 RECEIPT BY CITY N The attached ASSIGNMENT AND ASSUMPTION AGREEMENT is received by the City of El Segundo on this_day of CITY OF EL SEGUNDO By: Planning Director -32- w 02 0660073 STATE OF CALIFORNIA SS: COUNTY OF ) On , 2001, before me, , a Notary Public, personally appeared . , personally known to me (or proved to me on the basis of satisfactory evidence)to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) STATE OF CALIFORNIA ) SS: COUNTY OF ) On , 2001,before me, , a Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. -33 - EXHIBIT C_ 02 0660073 TENTATIVE PHASING PLAN y II Phase Start Construction Complete Construction PHASE I JULY 2002 JULY 2004 • 300,000 gsf mixed-use,proportional retail and associated parking PHASE II JANUARY 2003 JANUARY 2005 • 250,000 gsf mixed-use, proportional retail and associated parking PHASE III JULY 2003 JULY 2005 • 250,000 gsf mixed-use, proportional retail and associated parking PHASE IV JANUARY 2004 JANUARY 2006 • 250,000 gsf mixed-use, proportional retail and associated parking PHASE V JULY 2004 JULY 2006 • 250,000 gsf mixed-use,proportional retail and associated parking PHASE VI JANUARY 2005 JANUARY 2007 250,000 gsf mixed-use,proportional retail and associated parking PHASE VII JULY 2005 JULY 2007 • 250,000 gsf mixed-use, proportional retail and associated parking PHASE VIII JANUARY 2006 JANUARY 2008 • 250,000 gsf mixed-use,proportional retail and associated parking PHASE IX JULY 2006 JULY 2008 • 250,000 gsf mixed-use,proportional retail and associated parking PHASE X JANUARY 2007 JANUARY 2009 • 250,000 gsf mixed-use,proportional retail and associated parking Total Complete Buildout July 2009 • 2,000,000 gsf mixed-use, 550,000 retail and associated parking. -34- EXHIBIT 02 0660073 qPP' DEVELOPMENT FEE SCHEDULE „ 1 City of El Segundo Fees: 1. Police Service Mitigation Fee $0.11 per gross floor area 2. Fire Service Mitigation Fee Deemed satisfied by the dedication of a fire station site. 3. Library Service Mitigation Fee $0.03 per gross floor area 4. Traffic Mitigation Fee Per City Council Resolution No. 3969 adopted May 21, 1996, subject to the in lieu credits listed on Attachment D-1. 5. Water Meter Installation Fees Per Title 14 of El Segundo Municipal Code -35 - ATTACHMENT D-1 TO EXHIBIT D 02 0660073 IN LIEU CREDITS AGAINST TRAFFIC MITIGATION FEE EIR IMPROVEMENT ESTIMATED PERCENTAGE ESTIMATED REF COST AMOUNT OF NO. CREDIT B-1 Transportation Demand $25,000 100% $25,000 Management Program B-2 Transit (Shuttle) $175,000 100% $175,000 B-3 Bicycle Station $100,000 100% $100,000 B-4 Bicycle Amenities $25,000 100% $25,000 B-5 Centralized Transportation $25,000 100% $25,000 Management Office ("TMO") B-6 Maple.Avenue between $537,000 80% $430,000 Nash Street and Douglas Street B-7 Imperial Highway& $50,000 100% $50,000 Sepulveda Boulevard I B-8 El Segundo Boulevard & $250,000 100% $250,000 Sepulveda Boulevard B-11 Imperial Highway&Nash $25,000 100% $25,000 Street/I-105 Freeway Westbound Offramp (one- way operation only) B-12 Atwood Way&I-105 $250,000 80% $200,000 Freeway Eastbound Offramp (one-way operation only) B-13 Atwood Way&I-105 $250,000 80% $200,000 Freeway offramp (two- way operation only) I -36- 2976 0,2 0660073 B-14 El Segundo Boulevard & $150000 _ 100% gu , $150,000 Douglas Street (two-way operation only) ..........................................._....... N/A Connection of Maple to $287,000 80% $230,000 Atwood Way The above-referenced costs are based on current estimates and may change upon mutual agreement of the parties. The total amount of in lieu credits would be $1,535,000, assuming one-way operations of Nash Street and Douglas Street, and $1,660,000, assuming two-way operations. -37 - 9 ,..� 0660073 EXHIBIT E AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS This Agreement of Purchase and Sale and Escrow Instructions (the "Agreement") is made.as of ,by and between TPG-El Segundo Partners, LLC, a California corporation("Seller"), and the City of El Segundo, a municipal corporation ("Buyer"). Recitals A. Seller is the owner of the approximately 5 acres of unimproved real property located at the northwest corner of Mariposa Avenue and Douglas Street, El Segundo, California, described in Paragraph 1.1 below. B. In consideration of the agreements set forth in this Agreement, Seller has agreed to sell the Property to Buyer, and Buyer has agreed to purchase the Property from Seller under the terms of this Agreement for use as a public recreational facility. THE PARTIES AGREE AS FOLLOWS: 1. Sale of Pronertv; Purchase Price. 1.1 Sale of Prosy. Seller shall sell to Buyer and Buyer shall purchase from Seller, at the price and upon the terms and conditions set forth in this Agreement: (i) that certain real property containing approximately 5 acres and located at the northeast corner of Mariposa Avenue and Nash Street, in El Segundo, California and more particularly described in Exhibit "1.1" attached hereto (the "Real Property"); (ii) all appurtenances to the Real Property owned by Seller, including, without limitation, all development rights, air rights, mineral rights, water, water rights and water stock relating to the Real Property(the "Appurtenant Rights"). The Real Property and the Appurtenant Rights are collectively referred to herein as the"Property." 1.2 Purchase Price. Buyer shall pay to Seller as the total purchase price for the Property(the "Purchase Price") an amount equal to the fair market value of the Property, as determined by an independent appraisal as provided in Paragraph 2.12 below, not to exceed $5,000,000. The Purchase Price shall be payable as follows: 1.2.1 Deposits. Buyer shall deposit the sum of$50,000 (the "Deposit') to Seller into "Escrow" (as defined in Paragraph 2.1 below) in immediately available funds concurrently with the Opening of Escrow (as defined in Paragraph 2.1 below). 1.2.2 Balance. The balance of the Purchase Price (the "Balance") shall be deposited by Buyer in immediately available funds into Escrow no later than two (2)business days before the Closing Date (as defined in Paragraph 2.2 below). -38 - 2. Escrow, Closinfa, Conditions. 02 0660073 2.1 Escrow. No later than five (5)business days after the execution of this Agreement by Buyer and Seller, Buyer and Seller shall open an escrow (the "Escrow")with (the "Escrow Holder") and shall deliver a fully executed copy of this Agreement to Escrow Holder. The deposit with Escrow Holder of this Agreement shall constitute the opening of Escrow (the "Opening of Escrow") and authorization to Escrow Holder.to act in accordance with the terms of this Agreement. Escrow Holder's standard provisions are attached hereto as Exhibit "2.1" and shall become a part hereof, provided, however that if there is any conflict or inconsistency between such standard provisions and this Agreement, then this Agreement shall control. 2.2 CJosin2 Date. The Escrow shall close on that date which is thirty(30) days following the expiration of the Feasibility Period (the "Closing Date"), but in no event shall the Closing occur later than . Notwithstanding the foregoing, the "Closing" or"Close of Escrow" (as defined in Paragraph 2.7 below) shall not occur unless the conditions to the Close of Escrow set forth in this Agreement have been satisfied or waived, including, without limitation, (i) the conditions set forth in Paragraphs 2.9 and 2.10 below, (ii) the condition that all items described in Paragraphs 2.5 and 2.6 below shall have been deposited with Escrow Holder, and(iii)the condition that the "Title Company" (as defined in Paragraph 2.3 below) has unconditionally committed to issue the"Title Policy" (as defined in Paragraph 2.3 below). If any of such conditions have not been satisfied or waived on or before the Closing Date and neither party is in default hereunder, this Agreement and the Escrow shall terminate, and the provisions of Paragraph 2.11 below shall apply. 2.3 Title and Title Insurance. Seller shall convey title to the Property to Buyer by a grant deed(the"Grant Deed"). At the "Close of Escrow," (the "Title Company"), shall issue through Escrow an ALTA Owner's Policy of Title Insurance (the "Title Policy")with liability in the amount of the Purchase Price, insuring fee title to the Property vested in Buyer, subject only to the following exceptions (the"Permitted Exceptions"): 2.3.1.1 (i) the standard printed exceptions set forth in the Title Policy; 2.3.1.2 (ii) general and special taxes and assessments not then delinquent; 2.3.1.3 (iii) those certain exceptions which have been approved by Buyer as provided in Paragraph 2.9.2 below; and 2.3.1.4 (iv) any exceptions to title created by or made through Buyer. 2.4 Costs. 2.4.1 Escrow Holder's fees with respect to the Escrow shall be shared equally by Seller and Buyer. -39 - 2976 02 0660073 2.4.2 Seller shall pay the premium for the CLTA portion of the Title Policy. The additional cost for the ALTA coverage-and any endorsements to the Title Policy requested by Buyer shall be paid for by Buyer. Buyer shall pay all costs and expenses, if any, incurred in connection with its obtaining a survey of the Property. 2.4.3 All expenses and charges incurred in connection with the discharge of delinquent taxes, if any, or liens or encumbrances on the Property(other than those Permitted Exceptions), shall be paid by Seller. 2.4.4 All installments of bonds, special taxes or assessments which are a lien on the Property prior to the time of Closing shall be paid by Seller. 2.4.5 Each party shall be responsible for payment of the fees and expenses of its counsel relating to this Agreement and the transactions contemplated hereby. 2.4.6 Any documentary or transfer taxes and recording fees shall be paid by Seller. 2.4.7 Any other closing costs or charges are to be paid as is customary in the County of Los Angeles, California. 2.5 Deposit of Documents and Funds by Seller. Seller shall deposit with Escrow Holder the following items no later than two (2) business days prior to the Closing Date, duly executed and acknowledged where required: 2.5.1 The Grant Deed. 2.5.2 An affidavit certifying that Seller is not a"foreign person," as defined in the Internal Revenue Code. 2.5.3 All other documents as may reasonably be required by Escrow Holder or the Title Company to close the Escrow in accordance with this Agreement. 2.6 Deposit of Documents and ;Funds by TAI'. Buyer shall deposit with Escrow Holder the following items no later than two (2)business days prior to the Closing Date, duly executed and acknowledged where required: 2.6.1 The Balance,plus such additional funds as are required to pay Buyer's costs and prorations as provided in Paragraph 2.4 above and Paragraph 2.8 below, less any credits Buyer is entitled to hereunder. 2.6.2 A completed and originally executed Preliminary Change of Ownership Report in the form required by the Los Angeles County Recorder's Office (the "Change of Ownership Report"). 2.6.3 The Covenant (as defined in Paragraph 10 below), -40 - 29 " f , . a 6 .2.6.4 All other funds and documents as may be reason0a ly requi©6.re by 0 73 r Escrow Holder to close the Escrow in accordance with this Agreement. 2.7 Delivery of Docurnents and Funds at Closing. The performance of the acts set forth in this paragraph shall constitute the "Closing" or the "Close of Escrow" as such terms are used in this Agreement. The Escrow Holder shall conduct the Closing by recording and distributing the following described documents and funds in the following manner: 2.7.1 Record the Grant Deed and the Covenant in the Office of the County Recorder of Los Angeles County and simultaneously deliver the Change of Ownership Report to such Office. The Covenant shall be recorded prior to the recordation of any deed of trust of any purchase money lender of Buyer. 2.7.2 Obtain and deliver the original Title Policy to Buyer and a copy to Seller. 2.7.3 Deliver to Seller on the Closing Date in immediately available funds the sum of the Balance, and such other funds, if any, due Seller by reason of prorations, less Seller's closing costs and prorations, if any, as provided in Paragraph 2.4 above and Paragraph 2.8 below, and any credits Buyer is entitled to hereunder. 2.7.4 Pay the costs referred to in Paragraph 2.4 above. 2.8 Prorations. 2.8.1 Taxes. Escrow Holder shall prorate on a 365-day basis the real estate taxes on the Real Property for the current fiscal year as of the Close of Escrow based upon the most current real estate tax information available. Any supplemental real estate taxes on the Real Property attributable to the period prior to the Closing Date shall be paid by Seller outside of Escrow. 2.8.2 Utilities. Escrow Holder shall prorate through Escrow, on a 365- day basis all water, gas, electric and other utility services, if any, on the Property. 2.9 Bu er's Conditions to Closing. Buyer shall not be obligated to proceed to the Close of Escrow and the Closing shall not occur unless and until, in addition to all other conditions contained in this Agreement, the following conditions have been satisfied or waived in writing by Buyer: 2.9.1 Evaluation ofPronerty. 2.9.1.1 Feasibility Period Buyer shall have a reasonable amount of time, but no more than one hundred eighty(180) days after execution of this Agreement by both parties (the "Feasibility Period"), in Buyer's sole discretion, to (a) determine the feasibility of using the Property as a public recreational facility, (b) approve the results of all tests or studies conducted by or on behalf of Buyer including any tests, inspections or studies pursuant to Paragraph 9 below, and (c) deliver written notice thereof to Seller and Escrow Holder. Buyer's failure to notify Seller or Escrow Holder prior to the expiration of the Feasibility Period of Buyer's -41 - �d �7 Uwe •Y' n m u 02 0660073 disapproval of any of Buyer's feasibility studies shall constitute Buyer's election to proceed to the Close of Escrow. Buyer agrees that during the Feasibility Period, Buyer shall keep Seller reasonably informed as to the status of Buyer's various inspections and feasibility studies. Seller will cooperate with Buyer in connection with Buyer's inspections. Buyer shall commence and complete such tests, studies and inspections with reasonable speed and diligence. 2.9.1.2 Related Documents. Within ten (10) calendar days following execution of this Agreement, Seller shall deliver to Buyer copies of any technical studies or reports in Seller's possession regarding the environmental, seismic, or geotechnical condition of the Property; provided, however, that Seller does not represent or warrant that any such studies or reports exist. or are in Seller's possession. 2.9.2 AVoroval of"I"itle. Promptly following the execution of this Agreement by Buyer and Seller, the Title Company shall deliver to Buyer a preliminary title report issued by the Title Company(the "Title Report") for the Property(as well as copies of all title documents referred to therein). Buyer shall have approved in writing to Seller all matters affecting title to the Real Property prior to the fifteenth(15th) day following Buyer's receipt of the Title Report and copies of all title documents referred to therein. The failure of Buyer to approve or disapprove any matter affecting title by written notice to Seller within such period shall be deemed Buyer's approval of that matter. Buyer shall not be entitled to disapprove liens for current nondelinquent property taxes. Should Buyer disapprove any matters of title, Seller shall determine, within ten (10) days after Seller receives Buyer's timely notice of disapproval (the "First Notice"), whether Seller is able, in Seller's reasonable discretion, to cause such disapproved items to be eliminated prior to or at Closing. If Seller determines, within such ten (10) day period, that it is unable, in Seller's reasonable discretion, to cause certain disapproved items to be eliminated prior to or at Closing, Seller shall give written notice to Escrow Holder and to Buyer specifying those disapproved matters (the "Second Notice"). If Seller does not deliver the Second Notice, then Seller shall be deemed to have agreed to cause such disapproved items to be removed from title to the Property prior to or at the Closing, in which event, Seller covenants to so remove such disapproved items. If Seller delivers the Second Notice specifying certain disapproved matters, and if Buyer is unwilling to waive Buyer's disapproval of those matters, Buyer shall give Seller and Escrow Holder written notice of Buyer's unwillingness, in Buyer's sole discretion, on or before the tenth (10th) day following Buyer's receipt of the Second Notice (the "Third Notice"), and this Agreement and the Escrow shall terminate in accordance with Paragraph 2.11 herein. If Buyer does not give the Third Notice within such 10-day period, Buyer shall be deemed to have waived its prior disapprovals except as to those matters Seller has eliminated or will eliminate prior to or at the Closing, and the condition contained in this Paragraph 2.9.2 shall be deemed satisfied. 2.9.3 Issuance of Title Policy. The Title Company has issued the Title Policy as of the Close of Escrow subject only to Permitted Exceptions. 2.9.4 Waiver. The foregoing conditions set forth in this Paragraph 2.9 are for the benefit of Buyer, and may be waived by Buyer in writing delivered to Seller and Escrow Holder. In satisfying the foregoing conditions, Buyer and Seller shall each exercise good faith, reasonableness and diligence. However, decisions authorized to be made in the sole -42 - „ 2 0660073 discretion of either Buyer or Seller shall be final and not subject to review or challenge on any basis. 2.9.5 Obli xation to Close. If the foregoing conditions set forth in this Paragraph 2.9 are not timely satisfied or waived by Buyer in accordance with Paragraph 2.9.4 above, this Agreement shall terminate and the provisions of Paragraph 2.11 below shall apply. If each of the conditions set forth in Paragraphs 2.9.1 and 2.9.2 above are timely satisfied or waived by Buyer, then Buyer shall be obligated to proceed with the Close of Escrow. 2.10 Final Subdivisioal. It shall be a condition precedent to Seller's and Buyer's obligation to proceed with the Close of Escrow(which condition cannot be waived by either Seller or Buyer)that the transactions contemplated hereunder comply with the California Subdivision Map Act (California Government Code Section 66410, et seq.) and all local ordinances adopted pursuant thereto (collectively the "Map Act"). Therefore, as of the Close of Escrow, Seller shall obtain and record, or cause to be recorded, a final tract map (the "Map") or other document if such is in accordance with the Map Act as may be legally necessary to reconfigure the Real Property into one or more legal parcels under the Map Act for conveyance to Buyer. Seller covenants to use its good faith reasonable efforts to record the Map as soon as possible following the execution of this Agreement. Seller shall pay all costs and expenses in preparing and recording the Map. If the conditions set forth herein have not been satisfied by the Closing Date, then this Agreement shall terminate and the provisions of Section 2.11 below shall apply. 2.11 Termination. Upon any termination of this Agreement and the Escrow (if applicable) for any reason other than either party's default hereunder, (i) each party shall execute such documents as Escrow Holder may reasonably require to evidence such termination, (ii) Escrow Holder shall return all documents to the party who deposited them, (iii) Escrow Holder shall charge its fees and expenses to both parties equally unless the termination of this Agreement is as a result of a default by one of the parties hereto, in which event the defaulting party shall be solely responsible for such fees and expenses, (iv) Escrow Holder shall return the Deposit to Buyer, less such fees and expenses charged to Buyer, (v) Buyer shall return to Seller all documents delivered to it by Seller relating to the Property, and (vi) all obligations of either party relating to this Agreement and the Property shall terminate. 2.12 Appraisal. It shall be a condition precedent to Seller's and Buyer's obligation to proceed with the Close of Escrow (which condition may be waived by mutual written agreement of Buyer and Seller) that an independent appraisal be conducted during the Feasibility Period to ascertain the Purchase Price of the Property; provided, however, if a lawsuit is filed challenging the Development Agreement or other entitlements granted to Seller pertaining to the Property, then the appraisal shall be prepared following final resolution of such lawsuit and the Feasibility Period shall be extended until such final resolution. The parties shall mutually select the appraiser. If the parties are unable to agree upon an appraiser within thirty (30) days from the Opening of Escrow, each party shall select its own appraiser, and the two appraisers will be instructed to appraise the Property at the appropriate time. If the two appraisals are different in value, then the two appraisals will be averaged together and that average will constitute the appraised price. The Purchase Price shall be the appraised price, not to exceed$5,000,000. The parties shall mutually agree to certain qualifications for the -43 - 1 appraisers. Each party shall pay one-half of the costs of the appraisal(s). The Property shall be appraised as park land. 3. Seller's representations and Warranties. Seller hereby represents and warrants to Buyer that, unless otherwise provided, at the date of execution hereof and at and as of the Closing Date: 3.1 Co orate Existence and Authority. Seller is a limited liability company(i) validly existing and in good standing under the laws of the State of California; and (ii) duly authorized, qualified and licensed under any and all laws, ordinances, rules, regulations and requirements of all governmental authorities to do all things required of it under or in connection with this Agreement. This Agreement and all agreements, instruments and documents herein provided to be executed or to be caused to be executed by Seller are duly executed by and binding upon and enforceable against Seller. 3.2 Documents. To Seller's actual knowledge, all the documents and information delivered by Seller to Buyer in connection with the Property and this Agreement and the exhibits attached thereto are true and correct copies of what they purport to represent. 3.3 Non-Foreign Person. Seller is not a"foreign person"within the meaning of Internal Revenue Code §1445. 3.4 Litigation. To Seller's actual knowledge, Seller has not been served in connection with any litigation or other proceeding respecting the Property or its use. 3.5 Eminent Domain. To Seller's actual knowledge, there is no existing or proposed eminent domain proceeding against the Property, or any part thereof. 3.5.1.1 Except where expressly indicated to the contrary, the phrase "to Seller's actual knowledge" as used herein shall mean the actual knowledge of Thomas S. Ricci or an officer or director of Seller. 4. Btrver's Revresentations and Warranties. Buyer hereby represents and warrants to Seller that at the date of execution hereof and at and as of the Closing Date, Buyer is a municipal corporation(i) validly existing and in good standing under the laws of the State of California; and(ii) duly authorized, qualified and licensed under any and all laws, ordinances, rules, regulations and requirements of all governmental authorities to do all things required of it under or in connection with this Agreement. This Agreement and all agreements, instruments and documents herein provided to be executed or to be caused to be executed by Buyer are duly executed and binding on and enforceable against Buyer. 5. Buver's Exannination of the Property. Except as provided elsewhere in this Agreement, Seller makes no representation or warranty respecting the Property, or any portion thereof, or otherwise in connection with the transaction contemplated hereby. Without limiting the generality of the foregoing, Buyer hereby acknowledges that Buyer will be purchasing the Property"AS IS"without representation or warranty of any kind, except as provided in Paragraph 3 above and Paragraph 7 below, and more specifically that: -44- 'i' 6 0660073 5.1.1 (a) Prior to the Close of Escrow, Buyer will have made its own independent investigation of the Property and all other aspects of this transaction, and has relied entirely thereon and on the advice of its independent consultants (if any) in entering into this Agreement. 5.1.2 (b) Prior to the Close of Escrow, Buyer will have reviewed all instruments, records and documents which Buyer deemed appropriate or advisable to review in connection with the Property and this transaction, and Buyer will have determined that the information and data contained therein or evidenced thereby was satisfactory to Buyer. 5.1.3 (c) Subject to the conditions, covenants, representations and warranties of the parties set forth herein, notwithstanding any adverse effect on the marketability, desirability or value of the Property or any portion thereof which occurs between the execution of this Agreement and the Closing Date, including, without limitation, any adverse effect arising from or related to any changes or proposed changes to any governmental laws, ordinances, statutes, rules or regulations, the transactions contemplated by this Agreement shall be consummated on the terms and conditions contained herein. 6. Covenants by Seller. Commencing with the execution of this Agreement and until the Close of Escrow: 6.1 Seller agrees not to place any liens, encumbrances, or easements on the Property, other than the Permitted Exceptions, nor will Seller enter into any agreement regarding the sale,rental, management,repair, improvement, or any other matter affecting the Property that would be binding on Buyer or the Property after the Close of Escrow, without the prior written consent of Buyer. 6.2 Seller agrees to maintain the Property in its condition on the date of this Agreement, ordinary wear and tear excepted, and agrees not to permit any act of waste or act that would tend to diminish the value of the Property in any way. 7. Additional Remesentatiotts & Warranties of Seller. Seller represents and warrants to Buyer as of the date of this Agreement and as of the Close of Escrow: 7.1 To the best of Seller's knowledge, and except as disclosed by Seller to Buyer in writing prior to the end of the Feasibility Period: 7.1.1 Seller has received no notice, warning, notice of violation, administrative complaint,judicial complaint, or other formal or informal notice alleging that conditions on the Property are or have been in violation of any law, regulation or official policy of any local governmental agency, the State of California or the United Stated Government regulating or controlling Hazardous Substances as hereinafter defined (collectively, `Environmental Law"), or informing Seller that the Property is subject to investigation or inquiry regarding Hazardous Substances on the Property or the potential violation of any Environmental Law. 7.1.2 There is no monitoring program required by the Environmental Protection Agency("EPA") or any similar state agency concerning the Property. -45 - 7 7.1.3 Seller has disclosed to Buyer all information, records, and studies maintained by Seller in connection with the Property concerning Hazardous Substances. 7.1.4 For the purposes of this Paragraph 7.1, the phrase "to the best of Seller's knowledge" shall mean the actual knowledge of Thomas C. Ricci or an officer or director of Seller. 7.2 Other than those disclosed by Seller to Buyer in writing prior to the execution hereof, there are no contracts or other agreements relating to the Property which will be in force on the Closing Date, and there is not monetary default or material non-monetary default thereunder by Seller that remains uncured. 8. Mutual Indemnities 8.1 Seller agrees to indemnify, defend and hold Buyer harmless from and against all claims, losses, liabilities, damages, actions,judgments, costs and expenses (including reasonable attorneys' fees) arising out of the acts or omissions of Seller, its agents, employees, representative, contractors, guests and invitees in or about the Property prior to the Closing or the conduct of business by Seller at the Property prior to the Closing. 8.2 Buyer agrees to indemnify, defend and hold Seller harmless from and against all claims, losses, liabilities, damages, actions,judgments, costs and expenses (including reasonable attorneys' fees) arising out of the acts or omissions of Buyer, its agents, employees, representative, contractors, guests and invitees in or about the Property after the Closing or the conduct of business by Buyer at the Property after the Closing. 9. Hazardous Material. 9.1 Definition of Hazardous Material. As used herein, the term "Hazardous Material"means any hazardous or toxic substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government. 9.2 Right to his ect. Prior to the expiration of the Feasibility Period, Buyer shall have the right, at its sole cost and expense, to conduct such physical inspections of the Property as necessary in order to determine the presence or absence of Hazardous Material on or under the Property. Such inspections by Buyer shall be conducted at reasonable times and under reasonable circumstances and shall be subject to the prior approval of Seller which shall not be unreasonably withheld. Buyer shall promptly deliver the results of such inspections to the Seller. 9.3 Cleanup of Hazardous Material. If Buyer determines that a legally unacceptable level, according to applicable governmental standards, of Hazardous Material exists on or under the Property, then Buyer may, in Buyer's sole discretion, terminate this Agreement. In such case, Buyer shall bear its own inspection costs, and the provisions of Paragraph 2.11 shall apply. If Buyer elects not to so terminate this Agreement, then Seller shall commence to remove such Hazardous Material from the Property, in which event the Close of Escrow shall be delayed until following Seller's completion of such removal. If Seller commences to remove such Hazardous Material, Seller shall thereafter diligently proceed with -46- /` 6 . o 02 06600' 3 such removal at Seller's sole cost and expense, and in accordance with all applicable laws, rules, and regulations. 9.4 Buyer's Inspection . If Seller removes such Hazardous Material pursuant to Paragraph 9.3 above, upon completion of such removal, Seller shall deliver to Buyer and to Escrow Holder notice stating that such removal has been completed. Within thirty(30) days following Buyer's receipt of such notice, Buyer shall inspect the Property in order to determine the presence or absence of Hazardous Material on or under the Property; provided, however, that Seller shall have the right to reasonably approve Buyer's agent who is to conduct such inspection. If such inspection reveals that the level of Hazardous Material remaining on or under the Property is at or less than the allowable level under applicable governmental rules or regulations, then Buyer shall be obligated to proceed to the Close of Escrow, and the Close of Escrow shall occur within two (2)weeks following Buyer's inspection. 9.5 Indemnification. 9.5.1 If following Buyer's inspection of the Property(and any removal by Seller of Hazardous Material from the Property), the parties proceed to the Close of Escrow, Buyer shall indemnify, defend and hold Seller harmless from any and all claims, demands (including demands by any governmental agency), liabilities, costs, expenses,penalties, damages, losses and liens, including reasonable attorneys' fees, arising out of or with respect to (1) any subsequent release of Hazardous Material on or under the Property caused by or through Buyer. The indemnity provided herein shall survive the Close of Escrow and shall not be merged into the Grant Deed. 9.5.2 If following Buyer's inspection of the Property(and any removal by Seller of Hazardous Materials from the Property), the parties proceed in the Close of Escrow, Seller shall indemnify, defend and hold Buyer harmless from any and all claims, demands (including demands by any governmental agency), liabilities, costs, expenses, penalties, damages, losses and liens, including reasonable attorneys' fees, arising out of or with respect to (1) any Hazardous Materials placed on or under the Property by Seller or its agents, (2) any Hazardous Materials of which Seller has actual knowledge, but did not disclose to Buyer, on or before the Close of Escrow, and (3) any migration of Hazardous Materials onto or under the Property from the adjacent property owned by Seller. The indemnity provided herein shall survive the Close of Escrow and shall not be merged into the Grant Deed. 9.6 Release. If following Buyer's inspection of the Property(and any removal by Seller of Hazardous Material from the Property if so elected by Seller), the parties proceed to the Close of Escrow, then: 9.6.1 Buyer and its elected and appointed officials, employees, contractors, agents, and each of them, and their respective successors and assigns, agree to forever release, discharge and acquit Seller and its parent, subsidiary and/or affiliate corporations, partnerships (general and limited), partners, directors, officers, shareholders, and employees, and each of them, and their successors and assigns, of and from any and all claims, demands, obligations, liabilities, indebtedness, breaches of duty of any relationship, acts, omissions, misfeasance, malfeasance, cause or causes of action, costs, sums of money, accounts, -47 - 06600'7 compensations, contracts, controversies,promises, dames, costs, losses and expenses, of every type, kind, nature, description or character(including without limitation reasonable attorneys' fees) (collectively"Claims"), and irrespective of how, why or by reason of what facts, whether heretofore or now existing, or which could, might or may be claimed to exist in the future, whether known or unknown, suspected or unsuspected, liquidated or unliquidated, each as if fully set forth herein at length, which in any way arise out of, or are connected with or relate to (1) any subsequent release of Hazardous Material on or under the Property caused by or through Buyer, and (2) any required clean-up of any and all Hazardous Material existing on or under the Property as of the Close of Escrow that Buyer did not discover during its inspection and testing of the Property as provided in Paragraphs 9.2 and 9.4 above, except for any Hazardous Materials placed on or under the Property by Seller or its agents, or any Hazardous Materials of which Seller has actual knowledge, but did not disclose to Buyer, on or before the Close of Escrow. Notwithstanding anything to the contrary contained herein, the release provided in this Paragraph 9.6 shall not extend to any past owners of the Property, even if such past owners succeed to Seller's interest in or to a portion of the Property. 9.6.2 Buyer and Seller each respectively hereby agrees, represents and warrants that it has had advice of counsel of its own choosing in negotiations for and the preparation of this Agreement (including, without limitation, Paragraphs 9.1 through 9.6.1 herein), that it has read Paragraphs 9.1 through 9.6, that it has had such Paragraphs fully explained by such counsel, and that it is fully aware of their contents and legal effect. 10. Buyer's Covenants. Buyer shall execute a covenant to Seller's reasonable satisfaction running with the Property(the "Covenant") that restricts Buyer's use of the Property solely for the purposes of constructing, operating, and maintaining a public park/and or soccer fields or similar public facilities compatible with the improvements on Seller's adjacent property, such as a police station or community center. The Covenant shall further provide that Buyer shall consult with Seller in developing plans and specifications for any proposed buildings or structures on the Property in order to assure compatibility with existing and proposed development on Seller's adjacent property, including, but not limited to, providing appropriate landscaping and using materials and finishes which complement the improvements on Seller's adjacent property; provided, however, that Seller shall not have any right of approval over such buildings or structures. The provisions of the Covenant shall survive the Close of Escrow for a period of 30 years and shall not be merged into the Grant Deed. 11. Casualties. Buyer and Seller each acknowledge that there are no improvements currently located on the Property and that Buyer is purchasing the Property for its land value. 12. Removal of Personal .Proi)erty. Prior to the Close of Escrow Seller shall remove any items of personal property from the Property. Such removal shall not affect the amount of the Purchase Price or any other terms or conditions of this Agreement. 13. Ii ht of Entrv. Buyer and its representatives, employees, contractors, agents and designees shall have the right to enter upon the Property, at Buyer's sole cost and expense, in order to inspect and investigate the Property and to conduct any and all surveys, tests and studies Buyer deems necessary or convenient, provided that Buyer shall restore any damage done to the Property as the result of any such tests, surveys or studies. Prior to any entry upon the Property -48 - ro m aw 117 13 Buyer shall designate in writing to Seller one or more_rgresentatives of Buyer who shall accompany any of such persons each time they enter upon the Property. Such entry or review shall be made only after reasonable advance written notice to Seller by Buyer and at times reasonably acceptable to Seller. Buyer shall indemnify and defend Seller against and hold Seller and the Property free and harmless from any and all claims, demands, liabilities, costs, expenses, penalties, damages, losses and liens, including reasonable attorneys' fees, arising out of any such entry by Buyer or its representatives, employees, agents, contractors or designees. The indemnity provided for herein shall survive the termination of this Agreement or the Close of Escrow hereunder and shall not be merged into the Grant Deed. The inspections of the Property shall be subject to the terms of this Paragraph 13 and shall be considered entries upon the Property for the purposes of this Paragraph 13. 14. Condemnation. This Agreement is subject to the provisions of California Civil Code, Section 1662 (the "Statute"). For the purposes of the Statute in determining whether a taking by eminent domain is of a"material part" of the Property, it shall be material if the taking exceeds ten percent (10%) of the gross land area of the Real Property. It is hereby understood that in the event of a taking of a"material part" of the Property, then Buyer shall not be obligated to proceed to the Close of Escrow hereunder. In the event of such a condemnation of less than a "material part,"Buyer and Seller shall, nonetheless, proceed to Closing without abatement of the Purchase Price but Seller shall assign to Buyer all of Seller's right to recover from the condemning authority. Seller agrees that it will both before and after the Closing Date execute such documents or instruments and further assurances as Buyer may reasonably request in order to facilitate such recovery by Buyer, and Seller will cooperate in any manner reasonably requested by Buyer. 15. Delivery of Possession. Except as expressly provided herein, Seller shall deliver possession of the Property to Buyer at the Close of Escrow. 16. No Commissions. Seller represents and warrants to Buyer that Seller has made no statement or representation nor entered into any agreement with a broker, salesman or finder in connection'with the transactions contemplated by this Agreement. Buyer represents and warrants to Seller that Buyer has made no statement or representation nor entered into any agreement with a broker, salesman or finder in connection with the transactions contemplated by this Agreement. In the event of a claim for brokers' or finders' fees or commissions in connection with the negotiation or execution of this Agreement or the transactions contemplated hereunder, Seller shall indemnify, hold harmless and defend Buyer from and against such claim if it shall be based upon any statement or representation or agreement alleged to have been made by Seller, and Buyer shall indemnify, hold harmless and defend Seller if such claim shall be based upon any statement, representation or agreement alleged to have been made by Buyer. 17. Attorneys' Fees. If any action or proceeding shall be brought by either party in order to enforce the provisions of this Agreement, or to collect damages as a result of the breach of any of the provisions of this Agreement, the prevailing party shall be entitled to recover all reasonable costs incurred in connection therewith, including attorneys' fees. 18. Notices. Whenever Escrow Holder or any party hereto shall desire to give or serve upon the other any notice, demand, request or other communication, each such notice, demand, -49- 02 46600►73 request or other communication shall be in writing, shall be given by personal delivery (including by commercial courier or delivery service) or by registered or certified United States mail, return receipt requested, postage prepaid, addressed as follows: TO SELLER: TPG-El Segundo Partners, LLC 355 South Grand Avenue Suite 2820 Los Angeles, CA 90071 Attention: Thomas S. Ricci, Senior Vice President with a copy to: Greenberg Glusker Fields Claman Machtinger&Kinsella LLP 1900 Avenue of the Stars Suite 2100 Los Angeles, CA 90067 Attention: Dale J. Goldsmith, Esq. TO BUYER: City of El Segundo 350 Main Street El Segundo, CA 90245 Attention: City Clerk with a copy to: Burke, Williams and Sorensen 611 West Sixth Street 25th Floor Los Angeles, CA 90017 Attention: Mark D. Hensley, Esq. TO ESCROW HOLDER: To the address supplied by Escrow Holder to Buyer and Seller at the Opening of Escrow. Any such notice, demand, request or other communication shall be deemed effective on the day of actual delivery as shown by the addressee's return receipt. If the date on which any notice to be given hereunder(or if the date of Closing) falls on a weekend or legal holiday then such date shall automatically be extended to the next business day immediately following such weekend or holiday. The foregoing addresses may be changed by notice given in accordance with this Paragraph 18. -50 - 6. 02 0660073 19. Amendrncnt; one to A reernent. All amendments and supplements to this Agreement must be in writing and executed by Buyer and Seller. All understandings and agreements between the parties (including any printed offer of sale provided by Seller to Buyer) regarding the Property are merged in this Agreement, which alone fully and completely expresses the agreement of the parties regarding the Property. This Agreement has been entered into after full investigation of the facts by both parties and neither party has relied on any statement or representation not embodied in this document. ,This Agreement has been drafted through a joint effort of the parties and their counsel and therefore shall not be construed against either of the parties as the draftsperson. 20. overnin�, Law. This Agreement shall be governed under the laws of the State of California. 21. Counterparts, headings and Defined T'ernns. This Agreement may be executed in several counterparts each of which shall be an original, but all of such counterparts shall constitute one such Agreement. The headings used herein are for convenience only and are not to be construed to be part of this Agreement. For the purposes of this Agreement, (a) the term "including"means "including without limitation," and (b) when a time period is specified in this Agreement for the performance of an act or the occurrence of an event, "days" shall mean "calendar days,"unless otherwise specified herein. 22. Time of the Essence. Time is of the essence of this Agreement. 23. Waiver. The waiver by one party of performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be considered to be a waiver by it of any other covenant, condition or promise. The waiver by either or both parties of the time for performing any act shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time. The exercise of any remedy provided in this Agreement shall not be a waiver of any other remedy provided by law. 24. Third .Parties. Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement. 25. Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, unless such invalidity, illegality or unenforceability materially affects the transactions contemplated by this Agreement or the ability of either party to perform its obligations under this Agreement. In such case, either party may terminate this Agreement and the Escrow on written notice to the other party given no later than ten(10)business days after the party giving such. notice becomes aware of such invalidity, illegality or unenforceability, and the provisions of Paragraph 2.11 above shall apply. -51 - 26. Additional Documents. Each party hereto_agrees to perform any further acts and to execute and deliver any further documents which may be reasonably necessary to carry out the provisions of this Agreement. 27. Ass gniment, Rindiniz Effect. This Agreement shall not be assignable by Buyer to any other party without the prior written consent of Seller. Subject to the foregoing, this Agreement shall be binding upon the successors and assigns of Seller and Buyer. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. Mark D. Hensley, City Attorney ATTEST: Cindy Mortensen City Clerk APPROVED AS TO FORM: SELLER: TPG-EL SEGUNDO PARTNERS, LLC, a California limited liability company By: Title: By: Title: BUYER: CITY OF EL SEGUNDO, INC., a California Municipal corporation By: Mike Gordon, Mayor -52 - 02 0660073 Receipt of the foregoing instructions by Escrow Holder is acknowledged, said escrow holding is accepted atid Escrow Holder agrees to hold and dispose of the ffirids and documents deposited in the escrow in accordance with these instructions. Dated: By: ...........11........................ Title: -53 - it m.. ^ w. 9 a 1 0 . 7 AGREEMENT Off" PU1ZC'l®1 E AND SA1,E AN ESC,1 OW INSTRUCTIONS LIST OF EXHIBITS 4 Exhibit 1.1 Legal Description of Real Property Exhibit 2.1 Escrow Holder's Standard Provisions Exhibit 3.1 Covenant and Agreement -54- AGREEMENT OF PURCHASE AND SALE 2" S i 1"H AND ESCROW INSTRUCTIONS 4 EXH IB,IT "I.1". LEGAL DESCRIPTION OF REAL PROPERTY 02 0660073 [To be added] -55 - m2 ,,, , w AGREEMENT OF PURCHkSE AND SALE AND ESCROW INSTRUCTIONS 02 0600073 EXHIBIT "2.1" ESCROW HOLDER'S S"I"A. (DA D .PROVISIONS [To be added] -56- it r'Ip III;�','�, m .•,i,, -AGREEMENT OF PURCHASE AND SALE AND ESCROW INSTRUCTIONS Uz Q660073 EXHIBIT "3.1" COVENANT AND AGREEMENT [To be added] -57 -