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91-023 Westland Properties, Inc. relative to Vallco Fashion Park Development (x-ref 1974)DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF CUPERTINO AND WESTLAND PROPERTIES, INC. AND WESTLAND SHOPPING CENTER L.P. RELATIVE TO THE DEVELOPMENT KNOWN AS VALLCO FASHION PARK CENTER DEVELOPMENT AGREEMENT TABLE OF CONTENTS RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 AGREEMENT . . . .. . . . . . . . . . . . . . . . . . . . . . . . 7 1. General Provisions . . . . . . . . . . . . . . . . . . . . . 7 1.1 Covenants . . . . . . . . . . . . . . . . . . . . . . . 7 1.2 Term . . . . . . . . . . . . . . . . . . . . . . . . . 7 1.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . 7 2. General Development . . . . . . . . . . . . . . . . . . . . . 9 2.1 Development and Control of Development . . . . . . . . 9 2.2 Vested Elements . . . . . . . . . . . . . . . . . . . . 9 2.2.1 Location of Development . . . . . . . . . . . . 11 2.3 Conditions with Regard to the Ice Rink Facility . . . . 12 2.4 Conditions with Regard to Bus and Transit Facilities . 14 2.5 Conditions with Regard to Child Care Facilities . . . . 16 2.6 Conditions with Regard to the Master Use Permit . . . . 17 2.6.1 Cinema Complex Next to Sears Store . . . . . . . 18 2.6.2 Building of Cinema on Westside Site . . . . . . 18 2.6.3 Building of Cinema on Eastside Site . . . . . . 19 2.6.4 Conditions with Regard to Single User Space . . 20 2.7 Grant of Easements . . . . . . . . . . . . . . . . . . 21 2.7.1 Consideration for Easement . . . . . . . . . . . 21 2.7.2 Westland's Obligation to Begin Payment . . . . . 23 2.7.3 Annual Payment . . . . . . . . . . . . . . . . . 24 2.8 Rules, Regulations and Official Policies . . . . . . . 25 2.8.1 Subject to Standards of General Plan . . . . . . 25 2.8.2 Section Shall Not Preclude Changes in Laws or Regulations . . . . . . . . . . . . . . . . 26 2.8.3 Right to City to Require the Processing of Building Permits . . . . . . . . . . . . . . 26 2.8.4 Applications Shall be Subject to the Development and Processing Fees & Taxes . . . . . . . . 28 2.8.5 Permits Shall Apply As of Time Permit is Granted . . . . . . . . . . . . . . . . . . 29 2.8.6 Precludes Any Future Building Moratorium . . . . 31 2.8.7 City Shall Cooperate in Establishing Assessment Dist., Issuing Bonds . . . . . . 32 2.9 Construction Phasing for New Parking . . . . . . . . . 32 2.10 Development of "Non -Residential Uses" . . . . . . . . . 33 2.10.1 Residential Development . . . . . . . . . . . . 34 2.10.2 Conversion of Existing Space to Non -Retail . . 37 2.10.3 Modification of the In -Lieu Fee . . . . . . . . 39 2.10.4 Adjustment Threshold . . . . . . . . . . . . . 40 2.11 Conditions with Regard to Housing Mitigation . . . . . 41 2.11.1 Affordable Housing Within Shopping Center . . . 41 2.11.2 Affordable Housing Within City . . . . . . . . 42 2.11.3 Payment of One Time Fee . . . . . . . . . . . . 42 2.11.4 Participation in Housing Mitigation Program 43 2.11.5 Mutually Accepted Alternative Housing Mitigation Measures . . . . . . . . . . . . . 44 2.11.6 Administration of Housing Mitigation . . . . . 44 3. Default, Remedies, Termination . . . . . . . . . . . . 46 3.1 General Provisions . . . . . . . . . . . . . . . 46 3.2 Annual Review . . . . . . . . . . . . . . . . . . 47 3.3 Default by City . . . . . . . . . . . . . . . . . 48 3.4 Enforced Delay, Extension of Time of Performance . 48 3.5 Legal Action . . . . . . . . . . . . . . . . . . . 49 3.6 Applicable Law . . . . . . . . . . . . . . . . . . 49 4. Hold Harmless Agreement . . . . . . . . . . . . . . . . 49 5. No Joint Venture or Partnership . . . . . . . . . . . . 50 6. Cooperation-Implementation . . . . . . . . . . . . . . 50 6.1 Processing . . . . . . . . . . . . . . . . . . . . 50 6.2 Other Governmental Permits . . . . . . . . . . . . 50 7. Cooperation in the Event of Legal Challenge . . . . . . 51 8. Mortgage Protection; Certain Rights of Cure . . . . . . 51 8.1 Mortgage Protection . . . . . . . . . . . . . . . 51 8.2 Mortgagee Not Obligated . . . . . . . . . . . . . 52 8.3 Notice of Default to Mortgagee . . . . . . . . . . 52 9. General . . . . . . . . . . . . . . . . . . . . . . . . 53 9.1 Enforceability of Agreement . . . . . . . . . . . 53 9.2 Validity of Parts of Agreement . . . . . . . . . . 53 9.3 Execution . . . . . . . . . . . . . . . . . . . . 53 10. CPI . . . . . . . . . . . . . . . . . . . . . . . . . . 53 11. Assignment . . . . . . . . . . . . . . . . . . . . . . 54 12. Bankruptcy or Receivership . . . . . . . . . . . . . . 55 13. Notices . . . . . . . . . . . . . . . . . . . . . . . . 55 14. Arbitration . . . . . . . . . . . . . . . . . . . . . . 56 15. Counterparts . . . . . . . . . . . . . . . . . . . . . 59 ddt172s DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF CUPERTINO AND WESTLAND PROPERTIES, INC. AND WESTLAND SHOPPING CENTER L.P. RELATIVE TO THE DEVELOPMENT KNOWN AS VALLCO FASHION PARK CENTER THIS DEVELOPMENT AGREEMENT ("Agreement") is entered into this 15th day of August, 1991 (the "Effective Date"), by and between WESTLAND PROPERTIES, INC., a Delaware corporation and WESTLAND SHOPPING CENTER L.P., a California limited partnership (collec- tively "Westland"), and THE CITY OF CUPERTINO, a municipal cor- poration ("City"). RECITALS A. The Legislature of the State of California adopted Section 65864 et se . of the Government Code (the "Development Agreement Statute"), which authorizes City to enter into a property development agreement. The City has adopted Ordinance No. 1256 (part) setting forth requirements and procedures for development agreements with City ("Development Agreement Ordi- nance"). B. Westland has a legal or equitable interest in that real property outlined in Exhibit "A-1" (the "Property") which is a portion of the Vallco Fashion Park Shopping Center (the "Shopping Center") which is outlined in Exhibit "A-211, and that real pro- perty outlined in Exhibit "A-1" designated as the "Rose Bowl" and is a "Qualified Applicant" as defined in Section 20.12.010(H) of the Development Agreement Ordinance. C. On July 16, 1974, the City Council approved Application 6-U-73, which provided for the development of 1,028,426 net rentable square feet of retailing space, including store stock -1- room space at the Shopping Center. Application 6-U-73 was amended pursuant to Application 7-U-76 by the City Council on May 17, 1976 to 1,020,000 net rentable square feet of retailing space, including store stock room space at the Shopping Center. To date, not all of this allocation has been used. D. Under both the prior and current zoning regulations, the Rose Bowl may be developed with office buildings with a Floor Area Ratio ("F.A.R.") of .37 or with commercial buildings with a F.A.R. of .25. E. On December 5, 1983, the City Council adopted Ordinance No. 1250, approving an amendment to zoning application 1-Z-83 establishing a Planned Development which was consistent with City's amended General Plan and which included the Shopping Center and Rose Bowl. The amendment established permitted land use types and intensity, set design standards, established conditions of development applicable to the Shopping Center and Rose Bowl, authorized commercial building space of 300,000 square feet in addition to the 1,020,000 square feet approved for the Shopping Center and the approximately 65,100 square feet available for development of the Rose Bowl. The approvals for the 300,000 square feet and 65,100 square feet of building space for develop- ment pertain exclusively to the Property and the "Rose Bowl" or such other areas of the Shopping Center as Westland may deem appropriate. These approvals and development policies are refer- red to as the "Existing Approvals." F. On July 1, 1991, the City Council approved the following Applications: -2- (i) General Plan Amendment 2 - GPA -89 by Resolution No. 8251. General Plan Amendment 2 - GPA -89 increased the designated development capacity of the Shopping Center by adding 260,000 square feet of additional net rentable square feet. Taken together with the existing available building capacity under Existing Approvals, the Amendment provides for 535,000 square feet of future development in the Property and the Rose Bowl or such other areas of the Shopping Center as Westland may deem appropri- ate, for a total build -out of net rentable space, including store stock room space, of 1,645,700 square feet; (ii) Application 7-Z-90, by Ordinance No. 1539. Application 7-Z-90 provides for rezoning of the Rose Bowl to P(CG, ML, Office, Hotel, Regional Shopping) Intent to achieve consistency with the zoning for the remainder of the Shopping Center. However, the P(CG, ML, Office, Hotel, Regional Shopping) designation for the Rose Bowl shall retain the office, industrial use option and the hotel use option available under the prior planned development zoning for the Rose Bowl parcel. Subject to the terms of this Agreement, Westland, in its sole discretion, may develop the Rose Bowl consistent with the P (Regional Shopping) Intent zoning applicable to the remainder of the Shopping Center, or Westland may develop the Rose Bowl for office, industrial use or hotel use, as set forth in the General Plan, the Vested Elements and this Agreement. (iii) Application No. 9-U-90, Application 9-U-90 which links the additional 260,000 square feet of net rentable square feet capacity approved pursuant to General Plan Amendment 2 -GPA -89 to the terms of the existing Master Use Permit for the Shopping -3- Center, approves development of a cinema complex subject to the conditions more fully described in the approved Application 9-U-90 and in Section 2.6 hereinbelow, and also modifies provisions of the existing Master Use Permit, as stated in Application 9-U-90 (the existing Master Use permit, as modified by Application 9-U-90 is hereinafter referred to as the "Master Use Permit"). (iv) Application No.'s ASAC 51,908.1 and ASAC 51,908.2 setting forth revised signage criteria for the Shopping Center and authorizing Westland to construct a pylon sign(s) in accordance with conditions set forth therein. Applications ASAC 51,908.1 and ASAC 51,908.2 are hereinafter collectively referred to as the "ASAC Applications". These approvals and development policies are referred to as the "Project Approvals" and pertain exclusively to the Property and the "Rose Bowl" or such other areas of the Shopping Center as Westland may deem appropriate. G. The improvements allowed pursuant to the Existing Approvals and the Project Approvals are referred to collectively as the "Project." H. The Project and the Project Approvals were subject to an Initial Study as required by the California Environmental Quality Act and were found to have no significant environmental impact. On July 1, 1991, the City Council granted a Negative Declaration for the Project and the Project Approvals. I. Westland and City have determined that the Project is a development for which this Agreement is appropriate in order to achieve the goals and objectives of the City's land use planning policies including the maintenance of the current ice rink located -4- at the Shopping Center and to provide appropriate assurances to Westland regarding its ability to complete the Project. This Agreement will eliminate uncertainty in planning for and securing orderly development of the Project, assure progressive installa- tion of necessary improvements, provide for public services appropriate to each stage of development of the Project, insure attainment of the maximum effective utilization of resources within City at the least economic cost to its citizens, and otherwise achieve the goals and purposes for which the Development Agreement Statute was enacted. In exchange for these benefits to City, Westland desires to receive the assurance that it may proceed with the Project in accordance with the existing General Plan, ordinances, resolutions and regulations, subject to the terms and conditions contained in this Agreement, in order to implement the intent of the City in enacting the Development Agreement Ordinance. J. City has found and determined that execution of this Agreement is in the best interests of the public health, safety and general welfare and that the provisions of this Agreement are consistent with the General Plan and provide balanced and diversified land uses in order to maintain the overall quality of life and of the environment within the City. The City believes that the orderly development of the Project will provide many public benefits to City through the collection of increased tax revenues resulting in fiscal benefits to City, construction of beneficial urban in -fill between already developed properties at a location serviced by major local thoroughfares and regional trans- portation systems, and the creation of job opportunities through -5- the construction and development of the Project and the location of businesses therein, as well as the maintenance of the present ice rink located at the Shopping Center which serves unique recre- ational needs within the City. K. On July 1, 1991, after due review of and report on Westland's application for this Agreement by all concerned City agencies and departments, and consideration of all other evidence heard and submitted at a duly noticed public hearing pursuant to the Development Agreement Ordinance, the City Council found and determined that the Parties have complied with all requirements regarding their entry into this Agreement and that this Agreement is consistent with the objectives, policies, general plan uses and programs specified in the General Plan and the Existing Approvals; it is compatible with the uses authorized in and regulations prescribed for the land use district in which the Project is located; is in conformity with and will promote public convenience, general welfare and good land use practices; will not be detrimental to the health, safety and general welfare of the City or the regions surrounding the City; will not adversely affect the orderly development of property or the preservation of property values within the City and will promote the same; and will promote and encourage the development of the Project by providing a greater degree of requisite certainty with respect thereto. L. Thereafter, on July 15, 1991, the City Council adopted Ordinance No. 1540 (the "Enacting Ordinance") enacting this Agreement as its legislative act and such ordinance became effec- tive August 15, 1991. -6- AGREEMENT 1. General Provisions. 1.1 Covenants. This Agreement is intended to be a covenant which runs with the Property and the Rose Bowl and the burdens and benefits of the Agreement shall bind and inure to the benefit of all successors in interest to the parties. 1.2 Term. The term of this Agreement ("Term") shall commence upon the Effective Date of this Agreement, which is the same as the effective date of the Enacting Ordinance (provided that in no event shall the Effective Date be earlier than thirty (30) days from the date General Plan Amendment 2 -GPA -89 becomes effective) and shall continue for a term of fifteen (15) years, unless terminated, modified or extended as set forth in this Agreement or by the mutual agreement of the parties hereto. Upon expiration of the Term, or the earlier termination of this Agree- ment, this Agreement shall be of no further force or effect, provided, however, termination shall not effect the rights of Westland which may arise from entitlements or approvals for development of the Shopping Center which were approved prior to, concurrent with or subsequent to the approval of this Agreement. 1.3 Amendment. This Agreement may be amended from time to time by mutual consent of the parties in accordance with the provisions of the City's Development Agreement Ordinance. West- land shall have the right to apply for modifications and/or amendments to this Agreement subject to the express written approval of City. Such application shall not be deemed a waiver of any term or provision of this Agreement unless so stated in the application. -7- 1.3.1 Upon the written request of Westland for a minor amendment or modification to the Master Use Permit, Design Objectives Narrative (a copy of which is attached hereto as Appendix I), the Project Development Map, or this Agreement, including but not limited to, (a) the location of buildings and other physical facilities, (b) conditions of operation of the Shopping Center, or (c) the design or configuration of the Project, the Director of Community Development shall determine whether the requested amendment or modification is consistent with this Agreement, the General Plan and applicable provisions of the Project Approvals. For purposes of this Agreement, the determina- tion of whether such amendment or modification is minor shall refer to whether the amendment or modification is minor in context of the overall Shopping Center. Upon receipt of a written request for a minor modification or amendment from Westland, the Director of Community Development shall (i) approve the proposed amendment without notice and public hearing, if the Director finds that the proposed amendment is both minor and consistent with this Agree- ment, the General Plan and the Project approvals, or (ii) disap- prove (in writing, with an explanation of the basis for disapproval) the proposed amendment if the Director finds that the proposed amendment is not minor or consistent with this Agreement, the General Plan and the Project Approvals, in which case Westland may refer such disapproval to the City Council for reconsidera- tion, or (iii) the Director may independently refer such proposed amendment directly to the City Council. If the City Council finds that the proposed amendment is both minor and consistent with this Agreement, the General Plan, and the Project Approvals, the City -8- Council may approve the proposed amendment without notice and public hearing. In the event the proposed amendment is submitted to the City Council, either upon referral by Westland or by direct referral by the Director, the approval of the City Council for such proposed amendment or modification shall not be unreasonably withheld or delayed. For purposes of this Agreement, any amend- ments or modifications which are treated as minor amendments or modifications as described in the Master Use Permit shall be deemed minor amendments or modifications hereunder. Amendments or modifications approved pursuant to this paragraph 1.3.1 shall not constitute subsequent discretionary approvals subject to further CEQA review. 2. General Development. 2.1 Development and Control of Development. Westland shall be permitted to develop the Project and City shall approve the development of the Project in accordance with this Agreement. 2.2 Vested Elements. The permitted uses of the Property, the "Rose Bowl" or such areas of the Shopping Center as Westland may deem appropriate from time to time, the density and intensity of use, the maximum height and size of the proposed buildings, existing codes and other provisions for reservation or dedication of land for public purposes, traffic mitigation measures and provisions for public improvements, and other terms and conditions of development applicable to the Property, the "Rose Bowl" or such other areas of the Shopping Center as Westland may deem appropriate, as set forth in: L':EL (a) The General Plan for commercial, office and hotel designation as of the date of the Enacting Ordinance for this Agreement; and (b) The "Existing Approvals" and the "Project Approvals" as set forth hereinabove; and (c) Application 24-U-87; which previously approved construction of a parking deck on the portion of the Shopping Center specified therein. are hereby incorporated herein and are vested subject to the provisions of this Agreement (the "Vested Elements"). In the event Westland elects, in its sole discretion, to develop the Project on areas or portions of the Shopping Center other than the Property or the Rose Bowl, then Westland may allocate its rights under this Agreement to such property without the consent of City, provided that the development of the Project on such property shall be expressly subject to the terms and conditions of this Agreement regarding the construction, design, materials, maximum height and size of the proposed buildings (including provisions which relate to said issues in the Project Approvals, Exhibit B, Appendix I and Appendix II attached hereto and incorporated herein) and further provided that Westland or its successor shall remain obligated by the terms of this Agreement. In addition, Westland agrees that, except as otherwise provided herein, any development of the Project on any portion of the Shopping Center other than the Property or Rose Bowl will be generally consistent with the Definitive Development Plan set forth in Application 7-Z-90. -10- 2.2.1 Location of Development. In the event Westland wishes to develop a portion of the Project in an area of the Shopping Center other than those areas of the Shopping Center which are designated on the Shopping Center map attached hereto as Exhibit "B" and incorporated herein ("Project Development Map"), as areas of "approved future development" for the Project, any development of the Project outside of those areas shall be subject to the terms and conditions of this Agreement and the Vested Elements. In addition, any such development outside the areas designated for "approved future development" on Exhibit "B" shall be subject to separate use permit review procedure by City. City acknowledges that development of the Project in areas not shown on the Project Development Map involve only a change in location and design from the construction of net rentable square footage approved under the Vested Elements and is not additional develop- ment. Therefore, City's use permit review procedure shall not, except as expressly set forth herein, require any additional payments (other than payment of standard fees for such use permit application), exactions or impact fees from Westland as a condi- tion of approval. Notwithstanding the foregoing, City may impose additional impact fees or exactions as specific mitigation measures which are conditions of approval of such use permit application, provided that such impact fee or exaction shall only be imposed to mitigate a specific, identifiable impact arising directly as a result of that portion of the development which is in a new location outside the approved areas shown in Exhibit "B", and provided further, that Westland is unable or has elected not to exercise its right to cure or mitigate such specific impact -11- through independent mitigation measures to be implemented by Westland, with the prior approval of City (which approval shall not be unreasonably withheld or delayed). City shall provide assurance to Westland that the impact fee or exaction payment paid by Westland will only be used to mitigate the specific impact for which the fee or exaction was imposed. If City fails to so use such impact fee or exaction payments as required by the current provisions of Government Code §6600 et. seq., then the fee or exaction will be refunded to Westland, with interest, as provided in the current provisions of Government Code §6601. The restric- tions on City's use of such impact fee or exaction payments set forth herein shall continue in effect, notwithstanding any future changes or repeal of Government Code §6600 et seq. Except as allowed above, City may not impose any additional impact fees, exactions or charges as a condition of approval of such use permit application. All parking structures which are shown on Exhibit "B" hereto in the areas designated as "areas for future parking structures" shall be deemed to be included within the term "Project" as used in this Agreement. All provisions in this Agreement regarding approvals, timing and application of the Vested Elements pertaining to the Project shall be considered to apply equally to parking structures to be constructed at the request of Westland. Any development of the Project or of the Shopping Center pursuant to the terms of Vested Elements or this Agreement shall be subject to the Parking Ratio set forth in Section 2.9 herein. -12- Westland's failure to develop the Project shall not result in liability to Westland except as may otherwise result from a failure to comply with Sections 2.3, 2.4 or 2.5. 2.3 Conditions with Regard to the Ice Rink Facility. Westland agrees to operate and maintain, or cause to be operated and maintained, the ice rink facility within the City of Cupertino at no cost to the City in a physical condition which equals, or is superior to, the physical condition of the present ice rink facility. In the event that Westland completes construction of and receives a Certificate of Occupancy for expansion of at least 100,000 square feet of new net rentable space during the Term of this Agreement, then the continued operation of the ice rink shall become a permanent condition of operation of the Shopping Center under the Master Use Permit. If Westland does not complete construction of, and receive a Certificate of Occupancy for, expansion of at least 100,000 square feet of new net rentable space during the term of this Agreement, then Westland shall only be obligated to continue maintenance and operation of the ice rink during the Term of this Agreement. Westland may elect in the future, in its sole and absolute discretion, to close the entire Shopping Center, and if Westland does so elect, this Agreement shall terminate and Westland shall be released from any obligation under this Agreement or the Master User Permit to continue to operate the ice rink as well as its obligations under paragraphs 2.4 and 2.5 herein. Further, nothing herein shall be deemed to prohibit Westland from operating the ice rink facility at a profit and City shall have no control over Westland's operation of such facility other than as expressly set forth in this Agreement. -13- Westland agrees that, subject to the foregoing, it will use good faith efforts, to operate and maintain, or cause to be operated and maintained, the ice rink facility in a manner which does not unreasonably restrict public access to the ice rink facility. City agrees to cooperate with Westland in processing any applica- tions for expansion, alterations or improvements to the ice rink facility and/or its ancillary uses, provided City shall not be required to contribute any money to such expansion. City further agrees that the net rentable square footage occupied by the ice rink facility and any ancillary uses appurtenant thereto, including any expansion of the ice rink or its ancillary uses, shall be excluded from calculation of the floor area allocation of the 1,645,700 net rentable square feet authorized under 2 -GPA 89. 2.4 Conditions with Regard to Park and Ride and Transit Facilities. At the request of the Santa Clara County Transportation Agency ("S.C.C.T.A."), Westland agrees to enter into an agreement with S.C.C.T.A. to establish parking spaces for a shared use park and ride parking area suitable for up to seventy-five (75) spaces ("Park and Ride Agreement"). The shared use park and ride area shall be located in a single location in the Shopping Center parking areas within any one of the following locations, determined in Westfield's discretion: (i) within 750 feet of any bus turnout location (either currently existing or which may be built) on either the westerly or easterly side of Wolfe Road and south of Vallco Parkway, or (ii) such other loca- tion as may be agreed between Westland and S.C.C.T.A. In the event Westland completes construction of, and receives a Certifi- cate of Occupancy for, expansion of at least 100,000 square feet -14- of new net rentable space during the Term of this Agreement, then operation of the park and ride facility shall become a permanent condition of operation of the Shopping Center under the Master Use Permit, unless the Park and Ride Agreement is terminated by the mutual consent of S.C.C.T.A. and Westland. If Westland does not complete construction of, and receive a Certificate of Occupancy for, expansion of at least 100,000 square feet of new net rentable space during the Term of this Agreement, then Westland shall only be obligated to allow operation of the park and ride facility during the Term of this Agreement, unless the Park and Ride Agree- ment is earlier terminated by the mutual consent of S.C.C.T.A. and Westland. The spaces designated for park and ride use shall be included as available Shopping Center parking spaces for purposes of determining the Shopping Center's compliance with applicable parking ratio requirements and Westland shall not be required to provide additional parking spaces to compensate for the spaces designated for park and ride use. The park and ride spaces shall be designated as such upon a weekday and non-public holiday only basis. The Park and Ride Agreement shall provide that the park and ride spaces shall be available exclusively for parking by commuters during the 6:00 a.m. to 9:00 a.m. time period. After 9:00 a.m. the park and ride spaces shall be equally available to both commuters and non -commuter Shopping Center users on a first come first served basis. The Park and Ride Agreement shall provide that S.C.C.T.A., City or another appropriate agency or authority shall be responsible for liability, maintenance and any other matters directly related to the operation of the shared use park and ride. -15- City agrees that in the event City wishes to construct new bus stops, located on the easterly and westerly sides of Wolfe Road between Vallco Parkway and Stevens Creek Boulevard, City shall construct such bus stops entirely within the current Wolfe Road right of way and Westland shall have no obligation to dedi- cate or transfer any portion of the Shopping Center to City in connection with such bus stops. Westland shall have no obligation to pay any amount to City to acquire any additional property necessary to construct such bus stops, except as expressly set forth in this Agreement. This section 2.4 and section 2.7 sets forth all of Westland's obligations with regard to bus transfer or other transportation facilities or programs and upon satisfaction of the obligations set forth herein, Westland shall have no further obligations concerning bus transfer or other transportation facilities or programs under the Existing Approvals, the Project Approvals or any other approvals or consents granted in the future pursuant to this Agreement. 2.5 Conditions with Regard to Child Care Facilities. Westland and City agree that Westland shall continue to maintain or operate, or cause to be maintained or operated a child care facility within the Shopping Center during the term of this Agreement. Notwithstanding such agreement, Westland agrees that in the event City adopts and implements a city-wide child care plan or policy applicable to new developments, Westland shall either, (i) participate in such plan or policy, with Westland's participation in such plan or policy being based upon the 260,000 square feet of additional gross leasable area authorized by -16- General Plan Amendment 2 -GPA -89; or (ii) Westland may elect, in lieu of such participation, to continue to operate and maintain or cause to be operated and maintained, at Westland's discretion, the child care facility currently located in the Shopping Center, or a similar type operation of a similar size (based on the number of net rentable square feet occupied by the facility currently located in the Shopping Center), for the remaining Term of this Agreement, provided however, this obligation shall terminate if Westland is unable to obtain, despite reasonable efforts, a tenant who is a qualified, licensed operator to operate such child care facility in compliance with all applicable regulations and requirements. In either event, Westland shall receive any benefits or bonuses to which it is entitled under such plan or policy adopted by the City. City agrees that the net rentable square footage occupied by the Child Care Facility and any ancil- lary uses appurtenant thereto shall be excluded from calculation of the floor area allocation of the 1,645,700 net rentable square feet authorized under 2 -GPA -89. 2.6 Conditions with Regard to the Master Use Permit. The provisions of the Master Use Permit for the Shopping Center will apply to currently existing uses and to any proposed uses which may occupy the Shopping Center, including unbuilt floor area authorized hereunder, as follows: (i) proposed uses located east of Wolfe Road which are not otherwise required to obtain separate use permit review and approval under the terms of the Master Use Permit and this Agreement will not be subject to separate use permit review and approval solely because such proposed use will operate between the hours of 11:00 p.m. and 7:00 a.m.; -17- (ii) existing approved uses or future approved uses located anywhere in the Shopping Center may remain open to the public between 11:00 p.m. and 7:00 a.m. on an occasional basis for special marketing and promotional events subject to prior written approval from the City's Community Development Director. Such approval may be granted, in the Community Development Director's discretion, for events involving the entire Shopping Center, events involving a group of the Shopping Center occupants and events involving a single Shopping Center occupant, subject to a finding by the Community Development Director that adequate steps have been taken to minimize the disturbance resulting from opera- tion during such hours to property owners adjoining the Shopping Center; (iii) proposed uses located west of Wolfe Road which wish to operate between the hours of 11:00 p.m. and 7:00 a.m. shall remain subject to separate use permit approval. Notwithstanding the foregoing, pursuant to the provisions of the Master Use Permit and this Agreement, a cinema complex may be built and operated in one of the following locations, without a separate use permit application, subject to the conditions set forth in the Master Use Permit: 2.6.1 Westland may elect to build a cinema complex of up to 2,500 seats on the site adjacent to the Sears store shown on Exhibit "B" (the "Westside Site"). 2.6.2 Westland may elect to build a cinema complex of up to 3,500 seats on the Westside Site, provided that if Westland elects to build a 3,500 seat cinema complex, the total build out to 1,645,700 square feet of gross leasable area for the Shopping Center authorized under General Plan Amendment 2 -GPA -89 -18- and this Agreement shall be reduced by 100,000 square feet of gross leasable area, thus reducing the total build out authorized under the Master Use Permit to 1,545,700 square feet of gross leasable area. 2.6.3 Westland may elect to build a cinema complex of up to 3,500 seats at either the site shown on Exhibit "B" located between the Penneys' store and the proposed site for the Sports Connection facility, or anywhere on the Rose Bowl (collec- tively, the "Eastside Sites"). If Westland elects to build a 3,500 seat cinema complex on one of the Eastside Sites, the total build out to 1,645,700 square feet of gross leasable area author- ized hereunder shall be reduced to a total build out of 1,600,000 square feet of gross leasable area. If Westland elects to build a cinema complex pursuant to the provisions of 2.6.1, 2.6.2 or 2.6.3 above, said use may operate during hours of operation customary to the cinema industry. The parties acknowledge that the reduction in the total build out of gross leasable square footage specified in paragraphs 2.6.2 and 2.6.3 is a negotiated measure intended to mitigate potential traffic impacts of the cinema use and that the approval for a cinema use specified herein is not intended to limit or restrict Westland's right to pursue development of additional space for cinema use, in any location in the Shopping Center, in accordance with the provisions of this Agreement and the Vested Elements. Approval of additional space for cinema use shall be subject to separate use permit application. City agrees that it will not impose any tax, fee or surcharge on cinema admission revenues as a condition of the construction of -19- the cinema facility or of the cinema's operation. However, City retains the right to adopt a city-wide admissions tax, fee or surcharge in the future and Westland agrees not to oppose such action by City. Any building permit application for such cinema shall be subject to review as set forth in paragraph 2.8.3 hereinbelow. 2.6.4 Conditions with Regard to Single User Space. Westland agrees that at least 80,000 square feet of the total 260,000 square feet of additional net rentable square feet authorized by General Plan Amendment 2 -GPA -89, when completely constructed, will be reserved for use by a "Single User". For purposes of this Agreement, a "Single User" shall mean a depart- ment store, specialty store, major retail attraction or major attraction, which is subject to the control of a single management entity or lessee and which operates as or appears to the public to operate as a single entity or user, even if some areas within such space are operated by other parties. In the event Westland requests a proposed use for the Single User space which does not satisfy all the criteria set forth herein, such proposed use shall be allowed, subject to approval by a majority of the City Council. Westland may request approval by submitting a written request to the Director of Planning specifying the alternative proposed use for the Single User Space and Westland shall provide any addi- tional information reasonably requested by City. The Director of Planning shall submit the request to the City Council for approval. City Council shall schedule a public hearing pursuant to the City's procedural ordinance and thereafter shall vote to approve or disapprove such request within sixty (60) days from -20- delivery of the written request from Westland. City may continue the request for one additional thirty (30) day period, with Westland's prior consent, which consent shall not be unreasonably withheld. Failure of the City Council to approve or disapprove Westland's request within such sixty (60) day period (or ninety (90) day period, if extended as set forth above) shall be deemed approval. 2.7 Grant of Easements. In consideration of the payments to be made by Westland under section 2.7.1, City shall grant and deliver to Westland, in recordable form, contemporan- eously with the execution of this Agreement, an easement agreement whereby City grants to Westland perpetual air, surface and subter- ranean easements running with the land, which will provide the Project with easements for additional pedestrian and/or vehicular access for ingress and egress over and under Wolfe Road and Vallco Parkway. The tunnel easements granted under Wolfe Road and Vallco Parkway shall be used only for internal traffic circulation within the Shopping Center. The form and substance of such easement agreement shall be in the form attached as Exhibit "C" and incor- porated herein. Said easement agreement shall also contain a termination and quitclaim of easement rights previously granted City over those portions of the Shopping Center described in Exhibit "C" attached hereto. 2.7.1 In consideration of the granting of such easements by City to Westland and the termination of City's existing easement rights, Westland agrees, subject to the terms of paragraphs 2.7.2 and 2.7.3 below, to pay City the base amount of One Hundred Thousand Dollars ($100,000) per year (which base -21- amount will be subject to adjustment as set forth in para- graph 2.7.2(a)). The base amount of $100,000, as adjusted, is hereinafter referred to as the "Annual Payment". The Annual Payment shall commence on the dates set forth below and will continue thereafter for a period of fifteen (15) years. The parties acknowledge that Westland is currently obligated to make annual payments of $67,000 to City pursuant to the terms of that certain agreement between City and Vallco Park Ltd., a California limited partnership, dated October 8, 1974, as amended ("Easement Agreement"). Westland's obligation to pay the sum of $67,000 per year shall terminate in 1994 and nothing contained herein shall be deemed to extend such obligation past the dates set forth in the Easement Agreement. Notwithstanding the foregoing, in the event Westland commences payment of the Annual Payment amount prior to termination of its obligation to pay such $67,000 annual amount, payment of the Annual Payment amount shall supersede and be in lieu of payment of such $67,000 amount. Under no circumstances shall Westland be obligated to pay both the Annual Payment amount and the $67,000 annual payment required under the Easement Agree- ment during the same year. The Easement Agreement shall be amended as set forth in Exhibit "C" to incorporate the provisions of this section 2.7. The Annual Payment, together with the payments previously received by City under the Easement Agreement, shall be utilized by City in a manner as approved by the City Council to enhance the environmental quality of the City. The City Council shall give priority to environmental problems in the vicinity of the Shopping Center. In consideration of this Agreement and the Annual Payment -22- to City, Westland shall not be obligated at any time to partici- pate in or pay any amounts required under any environmentally related programs affecting or relating to the Shopping Center or Westland's operation of the Shopping Center, including without limit traffic, transportation, parking, air quality and sewage programs (collectively "Environmental Programs") currently in effect or which may be adopted in the future by City, except as expressly set forth in this Agreement. Notwithstanding the foregoing, Westland shall participate in and pay any amounts required under any Environmental Program mandated by and paid to the State of California or the United States Government or any direct agencies thereof. 2.7.2 Westland's obligation to begin payment of the Annual Payment shall not commence until Westland has completed expansion of the Shopping Center consisting of at least 200,000 square feet of additional net rentable space. Such 200,000 square feet of additional net rentable space shall be deemed completed when City has issued Certificates of Occupancy for such new construction and development within the Shopping Center, such that the total available net rentable square footage within the Shopping Center immediately available for occupancy is at least 1,310,700 square feet. The 1,310,700 square feet of available net rentable space shall be hereinafter referred to as the "Payment Threshold". Upon reaching the Payment Threshold, Westland's obligation to pay the Annual Payment amount shall commence and shall continue yearly thereafter for a period of fifteen (15) years. Once the Payment Threshold has been reached, the obliga- tion to make such payments shall survive the earlier termination -23- of this Agreement. The amount of the Annual Payment shall be determined at the time the Payment Threshold is reached in the following manner: (a) The amount of the Annual Payment shall be calculated by multiplying the sum of $100,000 by a fraction the numerator of which is the "CPI" (as defined in paragraph 10) published nearest and preceding the Payment Threshold date and the denominator of which is the CPI published nearest and following the Effective Date of this Agreement. The amount so calculated shall be the Annual Payment, provided that in no event shall the amount of the Annual Payment when calculated exceed $150,000. 2.7.3 The amount of the Annual Payment shall be increased on the fifth (5th) and tenth (10th) anniversary of the Payment Threshold date. The amount of each increase shall be equal to the "Adjustment Amount", which shall be calculated in the following manner: (a) The Adjustment Amount shall be determined when the Payment Threshold is reached, at the same time as when the amount of the Annual Payment is determined, and shall be calculated by multiplying the sum of $25,000 by a fraction, the numerator of which is the CPI published nearest and preceding the Payment Threshold date and the denominator of which is the CPI published nearest and following the Effective Date of this Agree- ment. The amount so calculated shall be the Adjustment Amount, provided that in no event will the Adjustment Amount when so calculated exceed $37,500. Once the amount of the Annual Payment and the Adjustment Amount are determined, neither amount shall be subject to any further CPI adjustment. -24- 2.7.4 The Annual Payment shall be paid by Westland in two (2) equal installments. The installments shall be due on March 1 and September 1, of each year, commencing after the Payment Threshold has been reached and Westland's obligation to pay the Annual Payment shall only apply to installment payments which become due after the date the Payment Threshold is attained. 2.8 Rules, Regulations and Official Policies. 2.8.1 Development of the Project shall be subject to all standards in the General Plan, the zoning codes, and other rules, regulations, ordinances and official policies applicable to such development on the Effective Date (collectively called the "Existing Ordinances"). True and correct copies of the Existing Ordinances on the Effective Date are attached as Exhibit "D". To' the extent any changes in the Existing Ordinances or any provi- sions of future General Plans, zoning codes or other rules, ordinances, regulations or policies, adopted on a city-wide basis, are applicable to the Project and are in conflict with, or prevent the implementation of the Vested Elements or the benefits to Westland derived thereunder, the Vested Elements shall prevail. To the extent any provisions of future General Plans, zoning codes or other rules, ordinances, regulations or policies, adopted on a city-wide basis, are applicable to the Project and do not conflict with or prevent the implementation of the Vested Elements or the benefits to Westland derived thereunder, such General Plan, zoning codes or other rules, ordinances, regulations or policies shall be applicable. Further, to the extent any provisions of future General Plans, zoning codes or other rules, ordinances, regula- tions or policies, adopted on a city-wide basis, are applicable to -25- the Project and are less restrictive than those General Plans, zoning codes or other rules, ordinances, regulations or policies in effect as of the Effective Date, then Westland may file an application with the City Council to be governed by such future General Plan, zoning codes, or other rules, ordinances, regula- tions or policies and City Council's consent to such application shall not be unreasonably withheld or delayed. 2.8.2 This section shall not preclude the applica- tion to development of the Project of changes in City laws, regulations, plans or policies, the terms of which are specifical- ly mandated or required by changes in State or Federal laws or regulations. In the event State or Federal laws or regulations enacted after the Effective Date of this Agreement or action by any governmental jurisdiction other than the City prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans, maps or permits approved by the City, this Agreement shall be modified, extended or suspended as required pursuant to Sections 3.4 (Enforced Delay; Extension of Time of Performance) and 6 (Cooperation - Implementation) of this Agreement in a manner so as to preserve to the fullest extent possible the intent of the parties as set forth herein. In addition, City shall cooperate with Westland in the event that Westland elects to contest either the lawfulness or the applica- bility of the changed law or regulation to Westland, the Shopping Center, or this Agreement. 2.8.3 Nothing set forth herein shall impair the right of City to require the processing of building permits as required by law and to conduct design review of any specific -26- improvements proposed for the Project. However, in connection with such review the City shall not impose any condition which would be inconsistent with any term or provision of this Agreement or the Vested Elements and City shall not unreasonably withhold or delay review or approval of proposed improvements. The City's design review shall be limited to review by the Director of Community Development to determine whether the plans, drawings and specifications for proposed construction are consistent with the Design Objectives Narrative and Use Permit conditions approved by City as part of Application 9-U-90 and the signage criteria approved by the City as part of the ASAC Applications. A copy of the Design Objectives Narrative is attached hereto as Appendix I is incorporated herein by reference. A copy of the ASAC Applica- tions as approved by City, are attached hereto as Appendix II and incorporated herein. Upon receipt of a complete building permit application, the Director of Community Development shall (i) approve the building permit application without notice and public hearing, unless the Director finds that the plans, drawings and specifications submitted with such building permit application materially depart from the architectural and design elements and signage criteria for the Project set forth in the Design Objec- tives Narrative, the ASAC Applications and the Vested Elements, or (ii) disapprove (in writing, with an explanation of the basis for disapproval) the building permit application if the Director finds that the plans, drawing and specifications submitted with building permit application materially depart from the architectural and design elements and signage criteria for the Project set forth in the Design Objectives Narrative, the ASAC Applications and the -27- Vested Elements, in which case Westland may refer such disapproval to the City Council for reconsideration, or (iii) the Director may independently refer such building permit application directly to the City Council. If the City Council finds that the building permit application does not materially depart from the architec- tural and design elements and signage criteria for the Project set forth in the Design Objections Narrative, the ASAC Applications and the Vested Elements, the City Council shall approve the building permit application without notice and public hearing and such approval shall not be unreasonably withheld. In the event the building permit application is submitted to the City Council, either upon referral by Westland or by direct referral by the DM:-ector, the City Council shall give Westland notice of approval or disapproval (with an explanation of the basis for disapproval) of the building permit application within sixty (60) days from the date of referral. Such sixty (60) day period may be extended by City for an additional thirty (30) day period with the prior consent of Westland. Failure of the City Council to approve or disapprove the building permit application within such time period shall be deemed approval. 2.8.4 All applications for City approvals, permits and entitlements shall be subject to the development and process- ing fees, charges and taxes within the control of the City which are in force and effect as of the time of granting of such approvals, permits or entitlement. Notwithstanding the foregoing, Westland shall not be required to pay new fees, or fees or charges that are in addition to or greater than the fees in existence as of the Effective Date except as follows: -28- (a) City may increase existing fees and charges based on any increase in the estimated reasonable cost to City for performing the work for which the particular fee or charge is paid, by an amount which will compensate City for the estimated reasonable costs and increases incurred, as permitted pursuant to Government Code Sections 66013 et seq. (b) Any new exactions, dedications, impact fees or regulations enacted or adopted by City shall only apply to the Project if all of the following conditions are met. (i) such new exactions, dedications, impact fees or regulations apply to all new development in the City and do not discriminate against the Project, (ii) there is a direct nexus between the new exac- tion, dedication, impact fee or regulation and a specific impact arising directly as a result of the development of the Project and City provides assurance to Westland that the impact fee or exac- tion payment paid by Westland will only be used to mitigate the specific impact for which it was imposed and (iii) the area of the impact addressed by such new exactions dedications, impact fees or regulations is not already mitigated, as provided under the terms of this Agreement. 2.8.5 Notwithstanding any provisions contained in any Vested Element in this Agreement to the contrary, codes, ordi- nances and regulations relating to health, safety, fire, sewer, water or construction standards or permits shall apply as of the time of each applicable permit is granted. Upon complying with the applicable conditions established in the Existing and Project Approvals, Westland shall have the right to apply for any neces- sary permits or approvals under the City's then presently existing -29- building and fire codes. Upon application by Westland, City shall review the application and, within a reasonable time issue all necessary permits, occupancy certificates, or other required permits for the construction, use and occupancy of the Project, or any portion of it, including connection to all utility systems under the City's jurisdiction. Notwithstanding any provision of this section to the con- trary, in event of a sewer connection moratorium ordered by the Regional or State Water Quality Control Board, or in the event of restrictions on additional water connections or restrictions on the availability of other utilities or scarce resources imposed by the United States Government, the State of California or the County of Santa Clara, or in the event of any other event beyond the control of the City of Cupertino, which restricts or prohibits the issuance of building permits, the obligations of City contained in this section to issue building or occupancy permits shall be suspended until the City is legally able to issue said permits; provided, however, that to the extent possible and provided such priority shall not negatively impact any immediate and legitimate health and safety needs of City for new public facilities, City shall grant to Westland a priority in the pro- cessing and issuance of building permits requested by Westland to enable Westland to receive said permits as soon as the City is legally able to issue said permits. Said suspension shall not constitute a breach of this Agreement and shall not relieve the parties from their obligations under the remaining provisions of this Agreement. In the event the obligation of City to issue said permits is suspended because of an actual shortage in the avail- -30- ability of utility capacity necessary to service the Project or because of restrictions on availability of utility capacity or other allocated resources or entitlements imposed by the United States Government, the State of California, County of Santa Clara or other governmental entity (other than City) then City agrees that in the event City has discretion or authority to ration such utility capacity or other allocated resource or entitlement, Westland shall be entitled to receive a fixed annual allocation of available capacity equal to (i) at least thirty percent (30%) of the total water and sewer allocations available for new develop- ment in the City of Cupertino during the calendar year in which Westland has applied for such building permit, and (ii) as to any other allocated resources, City shall use its best efforts to allocate and secure sufficient allocations of resources to allow development of the Project to go forward and the parties hereto acknowledge it is the intent of City to assist Westland as much as possible in getting the Project completed as expeditiously as possible. The precise plan for implementation of the fixed allocation of total available capacity for the benefit of Westland shall be determined if and when an actual shortage or restriction of available utility capacity actually occurs. 2.8.6 The City and Westland recognize that the success of the contemplated expansion of the Project is substan- tially dependent upon the timing of the construction of the improvements coinciding with the market demand for the additional space, and that the market demand is beyond the reasonable control of either City or Westland. The inability to make a timely response to market demand may result in the permanent loss of the -31- economic opportunity otherwise available to City and Westland. Further, the City will receive a substantial economic benefit from the success of the expansion. Therefore, City agrees that this Agreement shall preclude application to the Project of any future building moratorium or similar ordinance, whether enacted pursuant to California Government Code Section 65858, or otherwise. 2.8.7 City shall cooperate to the fullest extent with Westland in establishing assessment districts, issuing bonds, and providing such other public financing mechanisms as may be appropriate for the Project. 2.9 Construction Phasing for New Parking. Due to the fact that construction of the Project by Westland will be deter- mined by market demand and conditions, the decision to expand the Shopping Center as authorized herein and the timing of construc- tion of the Project, shall be within Westland's sole discretion. However to ensure that adequate parking will be available, Westland shall provide additional parking to accommodate the development of the Project. New parking for the Project shall be provided at a ratio of one (1) parking space for every 248 square feet of gross leasable floor area of retail space ("Parking Ratio"). The parties acknowledge that it is Westland's goal that construction of the additional parking facilities required to maintain the Parking Ratio shall be phased to coincide with the construction of the Project so that upon completion of new con- struction on the Rose Bowl or upon completion of new construction elsewhere in the Shopping Center, Westland shall provide or construct additional parking spaces in reasonable proximity to the new construction, in order to maintain the total number parking -32- spaces in compliance with the Parking Ratio. Notwithstanding the foregoing, City and Westland acknowledge that development of the Project may occur incrementally, with development of smaller portions occurring first, and that construction of new parking structures to accommodate parking for such development may not be feasible or economical. During construction of the Project, Westland shall be deemed to continue to be in compliance with the Parking Ratio as long as the total number of parking spaces provided by Westland for the Shopping Center are not more than 200 parking spaces below the total number of spaces required under the Parking Ratio (the "Parking Threshold"). If available parking falls below the Parking Threshold, Westland shall commence con- struction of new parking facilities to provide the required number of additional parking spaces. Westland shall also proceed in good faith to obtain cooperative shared offsite parking to offset short term parking deficit conditions which may occur during the "Christmas" shopping season, which shall mean the period from Thanksgiving through December 27. Upon completion of the entire Project, new parking facilities will be provided to maintain parking for the Shopping Center in compliance with the Parking Ratio. For purposes of this Agreement new parking spaces shall be deemed to be in "reasonable proximity" to newly constructed retail space if such new parking is located within reasonable proximity to a mall entrance to the Shopping Center. 2.10 Development of "Non -Retail Uses". City and Westland agree that Westland may build all or a portion of the Project for "Non -Retail Uses", subject to the provisions of paragraphs 2.10.1 and 2.10.2 hereinbelow. For purposes of this -33- Agreement, the terms "Non -Retail Use" or "Non -Retail Uses" shall mean any use which is authorized under the General Plan and zoning for the Shopping Center or the Rose Bowl as set forth in the Vested Elements and which is not included in the list of "Retail Uses" set forth on Exhibit "E" attached hereto and incorporated herein. The term "Existing Non -Retail Uses" shall mean any Non - Retail Uses which are located in the Shopping Center as of the Effective Date of this Agreement. The terms "Retail Use" or "Retail Uses" shall mean one or more of the uses which are listed on Exhibit "E". 2.10.1 In the event Westland elects to develop the Rose Bowl or other areas of the Shopping Center for Non -Retail Use, then such new development shall be subject to a separate use permit application by Westland. City agrees that as a condition of approval of such use permit application City may not require, except as expressly set forth herein, any additional payments (other than standard use permit application fees), exactions or impact fees, from Westland and that City may not require a traffic study as a condition of such use permit until the new space built for Non -Retail Uses exceeds 65,100 square feet. Notwithstanding the foregoing, City may impose new impact fees or exactions as specific mitigation measures which are conditions of approval of such use permit application provided that such impact fee or exaction shall only be imposed to mitigate a specific identifiable impact arising directly as a result of the development of space for Non -Retail Uses, as opposed to space for Retail Uses, and provided further that Westland is unable or has elected not to exercise its right to cure or remedy such specific impact through -34- independent mitigation measures to be implemented by Westland, with the prior approval of City (which approval shall not be unreasonably withheld or delayed). City shall provide assurances to Westland that the impact fee, or exaction paid by Westland will only be used to mitigate the specific impact for which the fee or exaction was imposed. If City fails to use such impact fee or exaction payments as required by the current provisions of Government Code §6600 et seq., the fee or exaction will be refunded to Westland, with interest, as provided in the current provisions of Government Code §6601. The restrictions on City's use of such impact fee or exaction payments set forth herein shall continue in effect notwithstanding any future changes or repeal of Government Code §6600 et seq. Except as allowed above, City may not impose any additional impact fees, exactions or charges as a condition of such use permit approval. City and Westland agree that for each one (1) net rentable square foot of new space constructed for Non -Retail Use above the New Non -Retail Use Threshold, the total build out of net rentable space to 1,645,700 approved hereunder shall be reduced by one (1) square foot. An example of the application of this formula is as follows: If 20,000 square feet of net rentable square footage above the New Non -Retail Use Threshold is built for Non -Retail Use, the total build out of net rentable square footage for the Shopping Center approved by City shall be reduced by 20,000 square feet to a total of 1,625,700 square feet. The parties hereto acknowledge that shopping centers naturally consist of a small amount of Non -Retail Uses and there- fore, the in -lieu fee (described below) shall apply only to net -35- rentable square footage of new space constructed which is used for Non -Retail Use to the extent that the total of such new square footage occupied by Non -Retail Uses exceeds the lesser of: seven percent (7%) of the total of all net rentable square feet allowed to be constructed pursuant to this Agreement or, seven percent (7%) of the total of all net rentable square feet actually built pursuant to this Agreement at the time the new Non -Retail Use takes occupancy ("New Non -Retail Use Threshold"). For each square foot of new net rentable space built for Non -Retail Use in excess of the New Non -Retail Use Threshold during the term of this Agreement, Westland shall pay City an annual "in -lieu fee". The in -lieu fee will be calculated by totaling the sales tax revenue received by City from taxable sales occurring in the Shopping Center in the year prior to commencement of construction of the space for Non -Retail Use (the "base tax year"). The total amount of the base tax year sales taxes revenue to City generated by the Shopping Center shall then be divided by the total number of net rentable square feet in the Shopping Center during the base tax year, to determine the sales tax per square foot generated by the Shopping Center for the base tax year. The in -lieu fee shall be equal to the sales tax revenue to City per square foot of net rentable space generated by the Shopping Center in the base tax year. The in -lieu fee shall only apply to new space built for Non - Retail Use when such space is occupied by a tenant. If any new space built by Westland for Non -Retail Use is later converted by Westland to a Retail Use or is vacated by the tenant, the in -lieu fee as to such space shall be terminated from the date such space -36- is converted or vacated. The amount of the in -lieu fee shall be calculated annually, as described above, based on the sales tax revenue to City per net rentable square foot, generated by the Shopping Center during the prior calendar year. The amount of the in -lieu fee for any given year shall be determined by City within a reasonable time from when the information necessary to calculate the sales tax revenue to City per net rentable square foot gener- ated by the Shopping Center becomes available. All such informa- tion necessary to calculate said in -lieu fee shall be delivered to Westland as soon as it becomes available to the City. The in -lieu fee for such space shall be payable annually for as long as such space is occupied by Non -Retail Uses, which may continue beyond the term of this Agreement. If new rentable space is built for Retail Uses, Westland may thereafter convert such space to Non -Retail Uses and such space shall be subject to the in -lieu fee, as provided in this paragraph 2.10.1, provided, however, the in -lieu fee shall only apply to new space converted from Retail Uses to Non -Retail Uses to the extent the total amount of net rentable square feet of such new space converted from Retail Uses to Non -Retail Uses when added to existing Non -Retail Uses in the new space exceeds the New Non - Retail Use Threshold. 2.10.2 Conversion of Existing Space to Non -Retail Uses. Westland shall have the right to convert to Non -Retail Uses all or a portion of the currently existing net rentable square feet occupied by Retail Uses in the Property (the "Existing Retail Space"). Westland's right to convert such Existing Retail Space shall not be subject to separate use permit application, but shall -37- be conditioned upon Westland paying to the City the annual in -lieu fee described in paragraph 2.10.1 above, for each square foot of Existing Retail Space converted to Non -Retail Uses. Provided, however, that such in -lieu fee shall not apply to any Existing Retail Space converted to Non -Retail Uses until such time as the total amount of net rentable space in the Shopping Center (excluding any new net rentable space built as provided herein) occupied by Non -Retail Uses exceeds the amount of net rentable space in the Shopping Center currently occupied by Existing Non - Retail Uses as of the Effective Date plus 65,100 square feet (the "Existing Non -Retail Threshold"). Once the Existing Non -Retail Threshold is reached, the in -lieu fee shall thereafter apply to Existing Retail Space converted to Non -Retail Use when such space is occupied by a tenant. If any Existing Retail Space converted to Non -Retail Uses is later converted back to Retail Uses or is vacated by the Non -Retail Use tenant, the in -lieu fee as to such space shall terminate. If payment of the in -lieu fees described in paragraph 2.10.1 and this paragraph 2.10.2 causes economic hardship to Westland, then Westland may apply to the City Council for a waiver of the in -lieu fee and the City Council shall not unreasonably withhold or delay its approval to such request. Upon approval from the City Council the in -lieu fee shall be waived for as long as such economic hardship continues. The total amount of the annual in -lieu fee described in paragraphs 2.10.1 and 2.10.2 for any calendar year shall be due on or before the 1st of March, following the end of such calendar year. The total amount of the annual in -lieu fee for such calendar year shall be calculated by multiplying the annual in -lieu fee per square foot (calculated as -38- set forth in paragraph 2.10.1) times the total number of net rentable square feet subject to the in -lieu fee during such calendar year. The amount of the in -lieu fee described in para- graphs 2.10.1 and 2.10.2, for space which is only occupied by a Non -Retail Use tenant for a portion of such calendar year shall be prorated based on amount of time the space was actually occupied by such Non -Retail Use tenant. The in -lieu fee described in paragraphs 2.10.1 and 2.10.2 shall not apply and shall not be due for any space built for or converted to Non -Retail Use after the term of this Agreement. Notwithstanding anything to the contrary set forth herein, in no event shall the space occupied currently or in the future by the Sears store, the Penney's store, the Emporium store, the ice rink facility or the child care facility, or any uses ancillary thereto or any successors thereof, be subject to the in -lieu fee described in paragraph 2.10.1 or 2.10.2. 2.10.3 Modification of the In -Lieu Fee. In the event Westland converts Existing Retail Space to Non -Retail Use such that the amount of Existing Retail Space converted to and occupied by Non -Retail Uses exceeds the amount specified below (the "Adjustment Threshold"), then the formula for determining the annual in -lieu fee per square foot shall be subject to reevalua- tion by Westland and City. Upon conversion of Existing Retail Space over and above the Adjustment Threshold, either City or Westland may call for a meeting to review data regarding the effect of the conversion of Existing Retail Space to Non -Retail Uses on Westland, City and the in -lieu fee paid pursuant to this paragraph 10. Westland and City shall thereafter attempt to -39- determine a mutually agreeable adjustment or modification to the .n -lieu fee. During the period of time between the date the Adjustment Threshold is passed and the date a final resolution of a modification to the in -lieu fee is reached, the in -lieu fee payable by Westland shall be equal to the average of the annual in -lieu fee per square feet paid during the prior five (5) calendar years. If this period of review by Westland and City exceeds one (1) year, then City may elect to continue the amount of the in -lieu fee per square feet paid -during the prior year or elect to have the in -lieu fee per square foot payable after such first year be equal to the average of the in -lieu fee per square feet paid during the most recent prior five (5) calendar years (including the most recent calendar year). If City and Westland are unable to reach a mutually agreeable position regarding a modification of the in -lieu fee per square foot within 12 months from the date the Adjustment Threshold is reached, then either City or Westland may submit written notice to the other party requesting that the issue be submitted to the City Council, as provided in paragraph 14 herein. 2.10.4 The Adjustment Threshold shall be reached when the total amount of Existing Retail Space converted to space occupied by Non -Retail Use tenants exceeds twenty percent (20%) of the total amount of the "Conversion Base Amount." The term "Conversion Base Amount" shall mean the total amount of net rentable square feet available in the Shopping Center as of the Effective Date, less the total net rentable square feet occupied by Sears, Penneys and the Emporium space and the net rentable -40- square feet occupied by the ice rink facility and its ancillary users. 2.11 Conditions with Renard to Housing Mitigation Measures. In order to completely and fully mitigate the effect of the Project on the supply of affordable housing in the City, Westland shall be required to implement one (1) of the following housing mitigation measures (collectively the "housing mitigation options"): 2.11.1 Subject to paragraph 2.11.6, Westland may elect to build or cause to be built at least fifty (50) units of "affordable housing" located within the Shopping Center property. In the event Westland elects to implement this housing mitigation option, City shall cooperate with Westland in authorizing and approving any zoning approvals, subdivision of the Shopping Center, use permit applications or other entitlements or approvals necessary to build such housing units on the Shopping Center property. For purposes of this paragraph 2.11, the term "afford- able housing" shall mean any type of housing that would qualify to be included in the City's supply of low income housing units, including without limit, single resident occupancy units ("SRO's") apartments or attached housing. Such housing shall reserve occupancy by low income persons according to the terms of a supplemental agreement approved by the City Council and by the City Attorney prior to recordation. Said supplemental agreement shall restrict occupancy of said units for a minimum period of 30 years. To eliminate displacement of residents, at the end of 30 years, upon prior approval by the City, existing residents in the affordable units will be able to remain there at affordable rates -41- until they choose to leave or are evicted for just cause. Afford- able rates charged shall not exceed 25 percent of gross income of eligible low income persons and eligibility of potential tenants will be based on incomes not exceeding HUD low income limits for the San Jose Primary Metropolitan Statistical Area. Any residen- tial units built by Westland on the Shopping Center property will be in addition to, and will not be included as part of, the 535,000 square feet of additional net rentable space authorized under the Project Approvals. 2.11.2 Subject to paragraph 2.11.6, Westland may elect to build or cause to be built at least fifty (50) units of "affordable housing", to be located somewhere in the City, other than the Shopping Center Property. In the event Westland elects to implement this housing mitigation option, City shall cooperate with Westland in authorizing and approving any zoning approvals, subdivisions, use permit applications or other entitlements or approvals necessary to build such housing units. The housing units described in this paragraph 2.11.2 and paragraph 2.11.1 above may be built, owned and/or managed by Westland in conjunc- tion with City, other public or private non-profit housing groups, or other private developers. If Westland does not directly build such units, the determination of whether Westland "caused" such units to be built will be made by the Director of Community Development, in the same manner as set forth in paragraph 1.3.1 hereinabove for approval of proposed amendments. 2.11.3 Westland may elect to pay a one time housing mitigation fee of up to Five Hundred Thousand dollars ($500,000) (the "Housing Fee"). The Housing Fee shall be subject -42- to adjustment, as described in subparagraph 2.11.3(a) below, and shall be paid pro -rata, in installments, as the Project is built. The amount of each installment shall be calculated at the time Westland receives a building permit for construction of a portion of the Project. The amount of such installment shall be equal to the sum of $500,000 times a fraction, the numerator of which is the number of rentable square feet of space authorized under the building permit received by Westland and the denominator of which is 535,000, provided, however, that if, at the time such Housing Fee is due, Westland has received a building permit to build a 3,500 seat cinema complex in the "Westside Site" (as defined in section 2.6 hereinabove), then the denominator of the fraction shall be 435,000. If Westland has received a building permit to build a 3,500 seat cinema complex in one of the "Eastside Sites" (as defined in section 2.6 hereinabove), then the denominator of the fraction shall be 489,300. Such installment shall be due and payable by Westland when the Certificate of Occupancy for such space is issued. If requested by City, Westland shall post a bond or other reasonably similar security for the payment of such installment at the time Westland receives the building permit on which such installment is based (the "Building Permit). The amount of each installment of the Housing Fee to be paid by Westland shall be adjusted as follows: (a) The amount of each Housing Fee install- ment payment determined as set forth hereinabove shall be multi- plied by a fraction, the numerator of which is the "CPI" (as defined in paragraph 10) published nearest and preceding the date on which the Building Permit is issued (the "Adjustment Date") and -43- the denominator of which is the CPI published nearest and following the Effective Date of this Agreement. 2.11.4 Westland may elect to participate in and comply with any housing mitigation program enacted by the City and in effect at the time a building permit for a portion of the Project is received by Westland. If City has not enacted a housing mitigation program within two (2) years from the Effective Date of this Agreement, then City will be deemed to have no housing mitigation program for purposes of this Agreement and Westland shall have no obligation to implement any housing mitiga- tion options or pay any housing mitigation fee for any building permits received after such two (2) year period. If during such two (2) year period Westland receives a building permit and City has not enacted a housing mitigation program, Westland shall be required to implement one of the other housing mitigation options as to the pro -rata portion of the Project approved under such building permit. If a housing mitigation program has been enacted by City within such two (2) year period, Westland may thereafter elect to implement this option. If a housing mitigation program is not enacted within such two (2) year period, Westland shall not receive a refund of any Housing Fees previously paid. 2.11.5 Any alternative housing mitigation measures which are mutually acceptable to Westland and the City. Approval and implementation of such alternative measures shall not be considered an amendment to this Agreement and shall not require a public hearing to approve such alternative measures. 2.11.6 Administration of Housing Mitigation Options. The fifty (50) housing units specified in paragraphs -44- 2.11.1 and 2.11.2 above and the sum of $500,000 (as adjusted) specified in paragraph 2.11.3 above shall be the maximum number of units or the maximum Housing Fee, as the case may be, required hereunder and is based on a complete build out by Westland of all 535,000 square feet of future development approved under the Vested Elements and this Agreement. In the event Westland builds out less than all of such 535,000 square feet during the term of this Agreement, then Westland's obligation to implement one of the housing mitigation options shall be reduced by the same ratio that the number of rentable square feet actually completed by Westland during the term of this Agreement bears to the total of 535,000 square feet of approved future development authorized hereunder, provided however, the total of 535,000 square feet of approved future development used for purposes of calculating the ratio shall be reduced to (i) 435,000 square feet if Westland builds a 3,500 seat cinema complex in the "Westside Site" (pursuant to the provisions of section 2.6.2 hereinabove), or (ii) reduced to 489,300 square feet if Westland builds a 3,500 seat cinema complex in one of the "Eastside Sites") (pursuant to the provisions of section 2.6.3 hereinabove). Westland may elect to implement any one of the housing mitigation options as to each building permit received by Westland and implementation of such option shall fully satisfy Westland's housing mitigation obligation as to the space authorized by such building permit. Westland shall notify City as to which housing mitigation option will be implemented for each building permit at the time Westland applies for such building permit. In the event Westland elects to implement the housing mitigation options set forth in paragraphs 2.11.1 or 2.11.2, with -45- regard to a specific building permit, Westland shall be obligated to complete the required pro rata number of housing units by the time Westland receives a Certificate of Occupancy for the rentable space built pursuant to such building permit. The parties hereto acknowledge that in the event the total of 535,00 square feet of future development authorized hereunder is reduced pursuant to the provisions of Section 2.6, Westland's obligation to implement one of the housing mitigation options based on a total build out of 535,000 square feet of rentable space will not be correspondingly reduced and Westland will be required to implement housing mitigation measures for up to 100,000 square feet of space that Westfield did not develop. City acknowledges that an issue exists as to whether Westland should receive a Housing Mitigation exemption which could be applied to future development of 100,000 square feet in excess of that currently allowed herein. Such an exemption would allow said 100,000 square feet to be built without the developer being required to pay additional fees or provide additional affordable housing to satisfy any affordable housing requirements. Due to time constraints, the issue has been discussed but not resolved in this Agreement. The parties hereto agree that Westland reserves the right to apply to the city in the future, without prejudice, for a Housing Mitigation exemption, in consideration of the additional housing mitigation requirements currently set forth in this Agreement. 3. Default; Remedies; Termination. 3.1 General Provisions. Failure or unreasonable delay by either party to perform and to commence to perform any term or -46- provision of this Agreement for a period of thirty (30) days after written notice thereof from the party alleging a default shall constitute a default under this Agreement, subject to extensions of time by mutual consent in writing. Said notice shall specify the nature of the alleged default and the manner in which said default may be satisfactorily cured. If the nature of the alleged default is such that it cannot reasonably be cured within such 30 - day period, the commencement of the cure within such time period and the diligent prosecution to completion of the cure shall be deemed a cure within such period. Subject to the foregoing, after notice and expiration of the 30 -day period without cure, the other party to this Agreement, at its option, may institute legal proceedings pursuant to this Agreement and/or give notice of intent to terminate the Agreement pursuant to Government Code Section 65868. Following notice of intent to terminate, the matter shall be scheduled for considera- tion and review by the City within thirty (30) calendar days in the manner set forth in Government Code Sections 65865, 65867 and 65868. Following consideration of the evidence presented in said review before the City Council, the party alleging the default by the other party may give written notice of termination of this Agreement to the other party. Evidence of default may also arise in the course of regularly scheduled annual review of this Agreement as described in Section 3.2 below. 3.2 Annual Review. Each year beginning in 1993, City shall review the extent of good faith compliance by Westland with -47- the terms of this Agreement. Such annual review shall be conducted in accordance with the City Development Agreement Ordinance. The timing of the construction of the improvements contemplated by this Agreement shall remain in the sole and absolute discretion of Westland based upon its own determination of the advisability of its commencing construction based upon its analysis of existing and projected market conditions and the advisability of the allocation of its time and capital to the Property. City recognizes that Westland has greater expertise in the area of judging market conditions and is willing to defer to Westland's judgement in this matter. Nothing in this Agreement shall require Westland to commence construction of any of the improvements during the term of this Agreement, and Westland shall not be deemed to not be in good faith compliance with this agree- ment for not planning or commencing the construction of the improvements contemplated by this Agreement. 3.3 Default by City. In the event City does not accept, review, approve or issue necessary development permits, entitlement or other land use or building approvals for use in a timely fashion as provided in this Agreement, or as otherwise agreed to by the parties, or City otherwise defaults under the terms of this Agreement, Westland shall have all rights and remedies provided herein or under applicable law. 3.4 Enforced Delay; Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes, walk -outs, riots, floods, earthquakes, fires, casualties, acts of -48- God, governmental restrictions imposed or mandated by governmental entities other than City, enactment of conflicting state or federal laws or regulations, judicial decisions or similar basis for excused performance which is not within the reasonable control of the party to be excused. If written notice of such delay is given to either party within thirty (30) days of the commencement of such delay, an extension of time for such cause will be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon. 3.5 Legal Action. Either party may, in addition to any other right or remedies, institute legal action to cure, correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation or enforce by specific performance the obligations and rights of the parties hereto. 3.6 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of California. 4. Hold Harmless Agreement. Westland hereby agrees to, and shall defend, save and hold City and its elected an appointed councils, commissions, officers, agents and employees harmless from, any and all claims, costs and liability for any damages, personal injury or death, which are caused by, directly or indirectly, Westland's or Westland's contractors', subcontrac- tors', agents' or employees' operations under this Agreement, whether such operations be by Westland or by any of Westland's contractor, subcontractors, by any one or more persons directly or indirectly employed by, or acting as agent for Westland. -49- 5. No Joint Venture or Partnership. City and Westland hereby renounce the existence of any form of joint venture or partnership between them, and agree that nothing contained herein or in any document executed in connection with this Agreement shall be construed as making City and Westland joint venturers or partners. 6. Cooperation -Implementation. 6.1 Processing. City agrees to cooperate with Westland in implementing all of the conditions of the Existing Approvals and the Project approvals. In addition, City shall cooperate with Westland in the processing and checking of all maps, plans, building plans and specifications and other plans relating to the development of the Shopping Center, filed by Westland. In this regard, Westland will, in a timely manner, provide City with all documents, applications, plans and other information necessary for City to carry out its obligations hereunder and cause Westland's planners, engineers and all other consultants to submit in a timely manner all required materials and documents therefor. 6.2 Other Governmental Permits. In addition, Westland shall apply in a timely manner for such other permits and approvals as may be required from other governmental or quasi - governmental agencies having jurisdiction over the Project as may be required for the development of, or provision of services to, the Project. City shall cooperate with Westland in its endeavors to obtain such permits and approvals and shall, from time to time at the request of Westland, attempt with due diligence and in good faith to enter into binding agreements with any such entity in order to assure the availability of such permits and approvals or -50- services, provided such agreements are reasonable and not detri- mental to City. To the extent allowed by law, Westland shall be a party to any such agreement, or a third party beneficiary thereof. Westland shall reimburse City for all costs and expenses incurred in connection with seeking and entering into any such agreement, provided that Westland has requested same. Westland shall defend City in any challenge by any person to any such agreement, and shall reimburse City for any costs and expenses incurred by City in enforcing any such agreement. 7. Cooperation in the Event of Legal Challenge. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, the parties hereby agree to cooperate and to both use their best efforts in defending said action. Each party shall bear its own costs with respect to such challenge, unless the parties otherwise agree in writing. 8. Mortgage Protection; Certain Rights of Cure. 8.1 Mortgage Protection. This Agreement shall be superior and senior to any lien placed upon the Shopping Center, or any portion, after the date of recording this Development Agreement, including the lien of any deed of trust or mortgage ("New Mortgage"). This Agreement shall be subject to and subordi- nate to any lien placed upon the Shopping Center or any portion thereof and recorded prior to the recording of this Development Agreement, including the lien of any deed of trust or mortgage ("Existing Mortgage"). This Agreement shall be binding upon and effective against any person or entity, including any deed of trust beneficiary or mortgagee ("Mortgagee") who acquires title to -51- the Property, or any portion thereof, by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise pursuant to the lien of a New Mortgage. However, no breach of this Agreement shall defeat, render invalid or impair the lien of any New Mortgage made in good faith and for value. 8.2 Mortgagee Not Obligated. No Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of improvements, or to guarantee such construction or completion. A Mortgagee that acquires title through foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise pursuant to the lien of a New Mortgage, shall have no personal liability under this Agreement, and recourse, if any, under this Agreement shall be limited to the Mortgagee's equity in the Project. 8.3 Notice of Default to Mortgagee. If City receives notice from a Mortgagee requesting a copy of any notice of default given Westland hereunder and specifying the address for service thereof, then City shall deliver to such Mortgagee, concurrently with service to Westland, any notice given to Westland with respect to any claim by City that Westland has committed an event of default. If City makes a determination of noncompliance with this Agreement, City shall likewise serve notice of intent to terminate on such Mortgagee concurrently with service thereof on Westland. Each Mortgagee shall have the right during the thirty (30) day period following service of the notice of default upon the Mortgagee, and a thirty (30) day period following service of the notice of intent to terminate upon the Mortgagee to cure or -52- remedy, or to commence to cure or remedy, the event of default claimed or the areas of noncompliance set forth in City's notice. 9. General. 9.1 City and Westland agree that unless this Agreement is amended or terminated pursuant to the provisions of this Agree- ment, this Agreement shall be enforceable by any party hereto notwithstanding any change hereafter in any applicable General Plan, Specific Plan, zoning ordinance, controlled growth ordinance or any other land use ordinances or building ordinances, resolu- tions or other regulations adopted by City which changes, alters or amends the rules, regulations and policies applicable to the development of the Shopping Center at the time of the approval of this Agreement. This Agreement shall not prevent City from applying new rules, regulations and policies which do not conflict with, or prevent the implementation of those rules, regulations and policies, and the benefits thereof, applicable to the Project as set forth in the Vested Elements or this Agreement. 9.2 If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect. 9.3 Each party shall execute and deliver to the other all such other further instruments and documents as may be reason- ably necessary to carry out this Agreement in order to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. 10. CPI: The term "CPI" shall mean the Consumer Price Index, All Urban Consumers All Items, San Francisco -Oakland -San -53- Jose Metropolitan Area (1982-84=100), now being published by the United States Department of Labor, Bureau of Labor Statistics. If the CPI is changed so that the base year is altered from that used as of the Effective Date, then the CPI shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics, to obtain the same result that would have been obtained had the base year not been changed. If no conversion factor is available, or if the CPI is otherwise changed, revised or discontinued for any reason, there shall be substituted in lieu thereof the term "CPI" shall thereafter refer to the most nearly comparable official price index of the United States Government in order to obtain substan- tially the same result for any adjustment required by this Agree- ment as would have been obtained had the original CPI not been discontinued, revised or changed. 11. Assignment. This Agreement shall be binding upon and inure to the benefit of the heirs, successors, and assigns of the parties. This Agreement shall only be assignable by Westland with the consent of the City, which consent shall not be unreasonably delayed or withheld. Any such assignment shall contain an assump- tion by the proposed assignee of all the current and future obligations of Westland hereunder. Upon such assumption, Westland shall have no further obligations or liability under this Agree- ment. If the assignee has sufficient economic resources to reasonably assure the continued operation of the ice rink as required by Paragraph 2.3 of this Agreement, City shall consent to the assignment. An assignment by Westland to an affiliate of Westland, or to an affiliate of the parent of Westland, shall not -54- require the consent of the City, provided that Westland shall not be released from any obligation concerning the continued operation of the ice rink. For purposes of this provision, an affiliate shall be an entity in which Westland, or its parent, retains at least a 25% legal or equitable interest. 12. Bankruptcy or Receivership. In the event Westland seeks protection from its creditors by the filing of any petition in the United States Bankruptcy Court or is subject to involuntary proceedings by its creditors or is made subject to any receiver- ship proceedings in state court, the City, may, terminate this Agreement upon ten (10) days written notice if (1) the Trustee does not affirm this Agreement within one hundred twenty (120) days of the commencement of the proceeding, and (2) Westland fails to continue to operate the ice rink in the manner required by this Agreement. For purposes of this provision, the term "Westland" shall refer to the then record owner of the Project, and not to any former owner. 13. Notices. Any notice or communication required hereunder between City or Westland must be in writing, and may be given by registered or certified mail, return receipt requested. The notice shall be deemed to have been given and received on the first to occur of (i) actual receipt by any of the addresses designated below as the party to whom notices are to be sent, or (ii) five (5) days after a registered or certified letter contain- ing such notice, properly addressed, with postage prepared, is deposited in the United States mail. Any party hereto may at any time, by giving ten (10) days' written notice to the other party designate any other address in substitution of the address to -55- which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to City: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Attn: Director of Community Development If to Westland: c/o Westfield, Inc. 11111 Santa Monica Boulevard, Suite 1400 Los Angeles, CA 90025-3348 Attn: John Endicott 14. Arbitration. In the event the issue of modification of the in -lieu fee described in paragraph 2.10.3 herein is to be submitted to the City Council, such issue shall be determined pursuant to the provisions of this paragraph. Either party may request a hearing before the City Council by giving the notice described in paragraph 2.10.3 hereinabove. The hearing before the City Council shall take place not less than sixty (60) days nor more than ninety (90) days from the date either party submits notice of request for a hearing. At the hearing the City Council shall receive evidence presented by Westland and/or City, or their designated agents, attorneys, accountants, contractors or employees and the general public. Westland may request, as a matter of right, to have the hearing continued to the next regularly scheduled City Council meeting and Westland may review the Videotape of the initial hearing and present additional relevant evidence at the continued hearing. At the conclusion of the hearing, the City Council shall render a decision after evaluating the evidence presented. -56- In evaluating the evidence the City Council shall consider the intent of the parties hereto that the in -lieu fee is intended to discourage development of Non - Retail Uses within the Shopping Center, but also that the in -lieu fee was not intended to cause economic hardships to Westland and if economic conditions require Westland to seek Non -Retail Uses for space in the Shopping Center, such Non -Retail Uses are prefer- able to vacancy or other economic hardships to Westland and City resulting from lack of viable Retail Uses. At the hearing before the City Council Westland and City may present any evidence relevant to the issues to be decided by the City Council. Such hearing shall be videotaped by City (and by Westland if Westland elects to videotape the hearing) and each party shall be provided with a copy of the other party's videotape. If Westland objects to the decision of the City Council, Westland shall deliver written notice to City within thirty (30) days from the date of the City Council's decision, requesting that the issue of modification of the in -lieu fee be submitted to arbitration. Such arbitration shall be conducted pursuant to the provisions of the laws of the state of California then in force, with the rules of procedure to be those of the American Arbitra- tion Association or its successor insofar as said rules of proce- dure do not conflict with the laws of the state of California then in force. Once notice to arbitrate has been given, Westland and City shall jointly, within thirty (30) days of such notice, select one arbitrator, or if they cannot agree on one arbitrator then each party shall select an arbitrator within forty (40) days of delivery of said notice and the two (2) chosen arbitrators shall select a third arbitrator. If the two (2) arbitrators are unable -57- to agree on a third arbitrator then the third arbitrator shall be appointed by the presiding judge of the Superior Court of the State of California, County of Santa Clara. The three (3) arbitrators so selected shall convene as soon as practicable and review the evidence that was presented at the City Council hearing. Such evidence shall be limited to the videotape, any documentary evidence presented at the City Council hearing, any confidential evidence reviewed by the City Council and if Westland was not allowed an opportunity to present relevant evidence at the hearing, Westland may present such evidence directly to the arbitrator(s). Except as set forth herein, neither party may present new evidence or conduct a new presentation of the evidence presented at the City Council hearing. The arbitrator(s) shall independently review the evidence without any presumption regarding any findings of the City Council and by majority vote, render a decision regarding modification of the in -lieu fee. Such decision may approve, modify or disapprove the decision of the City Council and such decision shall be binding upon the parties hereto. The cost of arbitration shall be borne equally by Westland and City. In the event either party fails to appoint an arbitrator within the time required by this paragraph, then upon application of either party, the arbitrator shall be appointed by the American Arbitration Association, or if there be no American Arbitration Association, or if it shall refuse to perform this function, then at the request of the other party such arbitrator shall be appointed by the then presiding judge of the Superior Court of the State of California for the County of Santa Clara. -58- 15. Counterparts. This Agreement is executed in three duplicate originals, each of which is deemed to be an original. This Agreement consists of fifty nine (59) pages and six (6) exhibits and two (2) appendices which constitute the entire understanding and agreement of the parties. Said exhibits and appendices are identified as follows: Exhibit "A-1" Map of Property and "Rose Bowl" Exhibit "A-2" Map of Shopping Center Exhibit "B" Project Development Map Exhibit "C" Easement Agreement Exhibit "D" Existing Ordinances Exhibit "E" List of "Retail Uses" Appendix I Design Objectives Narrative Appendix II ASAC Applications -59- IN WITNESS WHEREOF, Westland and City have executed this Agreement as of the date first hereinabove written. CITY OF CUPERTINO, WESTLAND SHOPPING CENTER L.P., a a Municipal Corporation California limited partnership By: WESTLAND PROJECTS, INC., a corporation, its By; - GENE TNER BARBARA KOP Mayor By: /°'����Gv�,L Its: ; 5 ( T MARSHALL GOLDMAN, Councilmember WESTLAND PROPERTIES, INC., a Delaware corporation yURALEE SOREN EN, By: Councilmemb Its: PQ�St�D� r BY: Li NICHOLAS SZABO, Councilmember BARBARA ROGERS, Councilmember Attest: CHARLES KILIAN, City Attorney Appro ed as to form: 41 VONALD BROWN-, City Manager R020.GM 10/3/91 STATE OF CALIFORNIA ) ss: COUNTY OF vk On this the da Notary Pulblic 'n and for appeared BARBARA KOPPEL, BARBARA personally known to me t Y, f 1991, before me, L r'US the undersigned, a said County and State, personally MARSHALL GOLDMAN, LAURALEE SORENSEN, ROGERS, DONALD BROWN and CHARLES KILIAN, o be the persons whose names are subscribed to this instrument, executed it. ��9G.(9� C9G`C9G:c9GL� :�;'�,,`L9�:C9G`rJC� c9G`L t �• OFFICIAL <"AL +a Doroth n,. �J y ft �r1e Cornelius SANT Y My Commission ExpiresSept., 9�C9�C9�C9bC9G��C9�i�i C9� 9 .79r+2 ^s and acknowledged that they NOTA 41UIBIALI,State of California My Commission Expires: yp �_ STATE OF CALIFORNIA ) ss. CITY OF LOS ANGELES ) On this 18th day of May , 1992, before me, Rory A. Packer, a Notary Public, personally appeared Richard E. Green, known to me to be the person who executed 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 entity upon behalf of which he acted, executed the instrument. WITNESS my hand and official seal. lic Capacity of signer: Presi ent/ of Westland Projects, Inc. general partn T—/of Westland Shopping Center L.P. Type of Document: Development Agreement STATE OF CALIFORNIA ) ) ss. CITY OF LOS ANGELES ) a. OFFICIAL SEAL RORY A PACKER o Notary PublirrCalifomia LOS ANGELES COUNTY My Comm. Exp. Apr. 12, 1993 On this 18th day of May , 1992, before me, Rory A. Packer, a Notary Public, personally appeared Richard E. Green, known to me to be the person who executed 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 entity upon behalf of which he acted, executed the instrument. WITNESS my hand and officialsal. ary/Public Capacity of signer: \Pre sident of Westland Properties, Inc. Type of Document: Development Agreement OFFICIAL SEAL RORY A PACKER Notary Public -California { LOS AN^"LES COUNTY { My Comma. Gxp. Apr. 12, 1993 Omh k hot s survey of the tand but Is complleo for Information from data shown by the official ncores by Tlcor Tltls Insurance Company. ' 7ti N. PORTAL = AVE t 30 a ,�, a, rw.at H A I p/-• dl N M > � O s► M � N M.g o MM M • � • � I ,frau C r .� m r L S v ^ �I+�► ♦ O ' .fir j1 ✓�� f ✓�� D �. i rn =C>r rn � t r n l N ioi• ` = R r ii N Y- r� O N. _ WOLFE I ' ROADic \ we < r v > > A rIko OR use IL CH N. jar . 1 . g Cn w •O � 7d yy �i \ 1 I{O �� � � 4Y rx ' F -4 r --;—._ r• v = V i Viz. O > UA � D U, N AN TA _ . AVE V' =00 I- Ni Or"'l k not a aunwy Of the fond but Is compy l for Information from data shown by the oHlciv rncorQs by Ticor Tlue Insurance Company. 7i1 N. PORTAL = AVE L 102.75 .y • - i \\ • n W V A C. 1�tU .1 I N .f * . r N O0 a 111 n r1 .41 M F z r �. n� f ✓�^ D 'Ziarn < ~ fri J ^ � � �� �rr •.�� ~ u n, M M O N. _ WOLFE ROAD ws� 'r TIT . _ ' f?'71:4 � � � � s• w.. 1 �' s o r C OnY Ir ~ �� toll so r z ' �i 4� f f_ZAl�ty,'LIL ^. sa r, Y s ' 10 PO 1. X l we Y \ • � As rn TANTAU AVE N 0 w 3 w o� _ Exhibit A- a U � " ► I :.� ^-•.ice:. ■ 451 ■ SHLES —I�UL-U AREA BELOW MALL BLD FfNCIf 1 `�� 1 t,�0'�rGigol � �i'p • (,•►.!�,;! AGE;.:• �- . - ---- -- OFFICE BILI OfA i OFFK[ eUIONG r r VALLCO FASHION PARK 50 100 z—... WESTFIELD INI I PAWNG ?ROYIOCD ElRSTTq ae:T ePACEe ExPAMegN wee ePACEe <, naa a ai■> TO TAI lege -AC g AREAS FOR "FUTURE DEVELOPMENT' AREAS FOR FUTURE PARKIN(: STRUCTURES