HomeMy WebLinkAboutr 10505 garden street long term 99 year leaseRESOLUTION NO. 10505 (2014 Series)
A RESOLUTION OF THE CITY OF SAN LUIS OBISPO ADOPTING AND RATIFYING
THE MEMORANDUM OF AGREEMENT BETWEEN THE CITY OF SAN LUIS OBISPO
AND GARDEN STREET SLO PARTNERS L.P. PROVIDING FOR A LONG TERM 99
YEAR LEASE FOR PARKING LOT #2
WHEREAS, representatives of Garden Street SLO Partners L.P. met multiple times with
City representatives to identify the terms that would provide benefit to the City of San Luis Obispo;
and
WHEREAS, the Garden Street SLO Partners L.P., recognizes their obligation to fulfill the
agreed requirements of the MOA; and
WHEREAS, the City Council has duly considered all evidence, including the testimony
of the applicant, interested parties, and the evaluation and recommendations by staff, presented at
said hearing.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of San Luis
Obispo as follows:
SECTION 1. The Memorandum of Agreement between the City of San Luis Obispo and
the Garden Street SLO Partners L.P., attached hereto as Exhibit "A" and incorporated herein by this
reference, is hereby approved.
Upon motion of Council Member Ashbaugh, seconded by Vice Mayor Christianson, and on
the following roll call vote:
AYES: Council Member Ashbaugh, Vice Mayor Christianson and Mayor Marx
NOES: Council Member Smith
ABSTAINED: Council Member Carpenter
ABSENT: None
The foregoing resolution was adopted this 4th day of March 2014.
r�
May an Marx
/.1
City Clerk
A R AS T
,,Yhiistine Dietrick
City Attorney
R 10505
Resolution No. 10505 (2014 Series)
Page 2
EXHIBIT A
AMENDED AND RESTATED MEMORANDUM OF AGREEMENTS
This MEMORANDUM OF AGREEMENTS (the "Agreement ") is made and entered
into, effective as of February _, 2014 (the "Effective Date "), by and between THE CITY OF
SAN LUIS OBISPO, a chartered California municipal corporation (the "City "), and GARDEN
STREET SLO PARTNERS, L.P., a California limited partnership ( "Developer ") and
supersedes the prior MOU between the parties dated August 17, 2010, with reference to the
following facts:
RECITALS:
A. Except for the real property and improvements situated at 778 Marsh Street, San
Luis Obispo, California, Developer and its affiliates have acquired title to or control of all
parcels of real property that are owned by parties other than the City and are situated in that
portion of the City of San Luis Obispo that is bounded by Broad Street, Garden Street, Marsh
Street, and the Garden Alley (such parcels, in conjunction with "Parking Lot 2" described below,
collectively are referred to as the "Project Area "), the ownership of which is set forth on
EXHIBIT 1 to this Agreement; and
B. The City is the owner of a 62 -space parking facility that is situated at the interior
of the Project Area; and
C. Developer desires to develop and construct in the Project Area a mixed use
Project that will include residential condominiums, a hotel, retail stores, and restaurants, and
which will eliminate on -site public parking previously contemplated to be constructed on a
portion of the Project Area (collectively, the "Project "); and
D. On July 18, 2006, Developer and City entered into an MOU which contemplated
the sale of Parking Lot 2 to Developer in exchange for the Developer's construction and lease
back to the City of an airspace condominium public parking facility; and
E. The Project originally contemplated by the parties has been modified through the
City's environmental and development review processes; and
F. On June 1, 2010, the City Council of the City provided final approval of the
environmental and land use entitlements for the Project by adopting the following resolutions
(together, the "Final Entitlements "):
(i) Resolution No. 10182 (2010 Series), "A Resolution of City of San Luis
Obispo Certifying the Final EIR for the Garden Street Terraces Project and
Approving the Reduced Development and Project without Public Parking
Spaces Alternatives as the Required Project (E 1240 -06)," certifying the final
environmental impact report for the Project; and
Resolution No. 10505 92014 Series)
Page 3
(ii) Resolution No. 10183 (2010 Series), "A Resolution of the City of San Luis
Obispo Approving A Modified Use Permit and Vesting Tentative Tract Map
for the Garden Street Terraces Project (U /TR 124 -06)" (Resolution No.
10183 "), approving Developer's application for a use permit for the Project;
and
G. The appeal periods for the Final Entitlements have lapsed without any appeal
being filed with respect to such Final Entitlements; and
H. The Final Entitlements require the Project to be reduced in scale, eliminate the
previously contemplated public parking component of the Project, and in accordance with the
City's customary exercise of its police powers over all projects within the City, require review
and approval of final design of the Project by the City Council; and
I. As a result of the modified Project, as entitled, Council also approved a Term
Sheet setting forth terms to be included in a successor Memorandum of Understanding
memorializing the parties' conceptual agreement for the lease of Parking Lot 2 to Developer for
a period of 99 years (the "Long Term Lease ") in order to facilitate the construction and
operation of the Project; and
J. The Project as entitled will have an important revitalization effect on the
downtown area and, therefore, continues to merit particular consideration by the City; and
K. The Project is consistent with key General Plan policies including Land Use
Element Policy 4. 1, which describes downtown's role as that of ensuring: 1) the Downtown is
the cultural, social and political center of the City for its residents as well as home for those who
live in its historic neighborhoods; 2) that the civic, cultural and commercial portions of
downtown should be a major tourist destination; and 3), that downtown visitor appeal should be
based on natural, historical, and cultural features, retail services, and numerous and varied visitor
accommodations. In addition, Land Use Element Policy 4.2.1, together with Housing Element
Policy 3.11.2, direct new Downtown development, such as the Project, to include dwellings; and
L. The Project will support concepts set forth in the Conceptual Physical Plan for the
City's Center (the Downtown Concept Plan), which is to be considered by the City as set forth in
Land Use Element Policy 4.16; and
M. Negotiations between City and Developer are appropriate in light of Developer's
ownership or control of the parcels abutting Parking Lot 2, but for those parcels fronting Higuera
Street and 742 Marsh Street, and the Developer's significant investment to procure the Project
entitlements to date because, without Developer's participation, the Project and the benefits it
confers upon the community would not occur; and
N. Therefore, the City contemplates that the proposed Long Term Lease (as defined
in Recital I above) will be accomplished without a competitive bidding process that the City
otherwise might use if the Project, of which the Long Term Lease is a part, did not serve
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substantial revitalization objectives furthered by the Project, and if private ownership on the site
was fragmented, rather than fully consolidated by the Developer, as in this instance; and
O. The utilization of City property and the elimination of on site City parking is
critical to implement the Project, as entitled by the City Council on June 1, 2010; and
P. Developer has agreed diligently to pursue final design approval of the Project as
entitled; and
Q. The parties contemplate later entering into a Property Lease Agreement and other
instruments necessary to implement the terms and conditions set forth herein, subject to
Developer receiving design approval and completing required environmental review of the Long
Term Lease; and
R. Section 15162 et seq. of the California Environmental Quality Ac t provides that a
lead agency, such as the City of San Luis Obispo may determine that when an environmental
impact report ( "EIR ") has been certified for a project, no subsequent EIR shall be prepared for
that project unless the lead agency determines, on the basis of substantial evidence in light of the
whole record. The City of San Luis Obispo has determined the revised project is consistent with
and any and all environmental impacts associated with the certified EIR.
S. The core components of the Project contemplated to be a part of the Long Term
Lease were part of the Project description included in the final EIR, which was certified by
Council Resolution No. 10182 (20 10 Series);
T. Developer and City previously executed that certain Memorandum of Agreements
dated effective August 17, 2010 (the "2010 MOU'), pursuant to which the City and Developer,
inter alia, amended and restated the 2006 MOU and agreed upon terms to be included in a Long
Term Lease (to be finalized at a later date) in order to facilitate the construction and operation of
the Project; and
U. The parties have agreed to execute this Agreement in order to amend and restate
the 2010 MOU and memorialize the core components and terms and conditions precedent to the
execution of the contemplated Long Term Lease and related aspects of the Project.
AGREEMENTS:
NOW, THEREFORE, the parties hereto, intending to be legally bound, do hereby agree
as follows with respect to the proposed Long Term Lease and the Project.
1. CONCEPTUAL PROJECT DESCRIPTION. The Project, as originally entitled,
included the following elements, which the parties acknowledge may be modified as to number
of units and total retail square footage prior to final design, subject to the limits set forth in
Paragraph 2, below:
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1.1 HOTEL. A 63 -room hotel containing approximately 2,500 square feet of
meeting space and a restaurant, bar, gym, and spa facility occupying a total built area of
51,346 square feet; and
1.2 RESIDENTIAL UNITS. 33 residential units ranging in size from 650
square feet to 1,500 square feet, with the average size of each unit being approximately
1,100 square feet occupying a total built area of 40,775 square feet; and
1.3 RETAIL SPACE. General - 14,341 square feet of retail space on the
ground floors; and
1.4 RETAIL SPACE. Market — 13,248 square feet of retail space; and
1.5 PARKING. 147 parking spaces, not including any public parking spaces.
2. PERMISSIBLE SCOPE OF CHANGES TO PROJECT COMPONENTS.
Developer acknowledges that the inclusion of the following Project components are a necessary
elements of the consideration for the Agreement and the City's Execution of the Long Term
Lease and the parties agree that if the Developer reduces or eliminates any component below the
following minimum requirements, the City shall have no obligation to enter into the Long Term
Lease contemplated herein:
2.1 HOTEL. The Project shall include a hotel that has no fewer than 45 boutique
hotel rooms and carries a three -star or four -star rating, as determined by a mutually agreeable
third party.
2.2. RESIDENTIAL UNITS. The Project shall include no fewer than 8 Residential
units.
2.3 RETAIL SPACE. The Project shall include no less than 20,000 square feet of
retail space including ground level retail as approved by the City Council.
3. ENVIRONMENTAL REVIEW OF LONG TERM LEASE. The Parties (a)
acknowledge that (i) the Long Term Lease, which shall be finally negotiated based upon the final
approved project design, will require environmental review, (ii) the City shall have no obligation
to enter into the Lease, as contemplated herein, until Developer has obtained the requisite
environmental determination relating to the Long Term Lease and has agreed to comply with any
required mitigations, and (iii) as noted in Recital R above, the core components of the Long
Term Lease were part of the Project description included in the final EIR, which was certified by
Council Resolution No. 10182 (2010 Series), and (b) agree to complete such environmental
review of the Long Term Lease at the earliest meaningful time after which the proposed final
project design is known. The City has determined that this Agreement is consistent with and
was analyzed and any impacts to the extent feasible were mitigated in the certified EIR for the
project, up to and including the addendum dated February 2014.
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4. LEASE OF PARKING LOT BY CITY — Subject to Paragraph 3, above, the City and
Developer shall enter into the Long Term Lease with respect to Parking Lot 2, and the City shall
convey to Developer certain airspace rights, on the following terms and subject to the conditions
precedent set forth in this Agreement:
4.1 PREMISES — LEASE. The premises subject to the Long Term Lease shall
include the undivided fee interest in Parking Lot 2.
4.2 PREMISES — AIRSPACE. Developer shall be permitted to pursue a
subdivision of the airspace above Parking Lot 2, and in consideration of Developer's
contribution pursuant to Paragraph 17.2, below, toward the costs of the public
improvements described in Paragraph 17.1, below, City shall convey to Developer fee
ownership of the airspace lots created by any subdivision that may be approved, while
retaining fee ownership of the ground below any subdivided airspace. The Developer and
City jointly shall engage an M.A.I. appraiser to appraise the value of the airspace rights to
be conveyed to Developer pursuant to the preceding sentence, and if such appraiser
determines that the fair market value of such airspace rights exceeds the amount that
Developer is required to contribute pursuant to Paragraph 17.2, below, then the amount that
Developer is required to advance under that Paragraph 17.2 shall be increased by such
excess amount.
5. TERM. The term of the Long Term Lease shall be ninety -nine (99) years. The Long
Term Lease shall provide that, at the end of the lease term, Developer shall have no further right
to occupy or improve Parking Lot 2 and all rights and title to any and all improvements on or to
the Property shall become the sole property of the City, unless a successor lease is negotiated
prior to the expiration of the term.
6. BASE RENT. Developer will pay to the City base rent that is equal to an agreed upon
fair market percentage of the fair market value of the real property, to be determined by a
qualified appraiser agreeable to Developer and City, subject to the terms and conditions set forth
in Paragraphs 6.1 and 6_2 below.
6.1 The parties acknowledge that the City's annual net revenue from the
operation of Parking Lot 2 currently is $204,379 per year, and agree that in no event shall
the base rent be less than the amount of the City's annual net revenue from the operation of
Parking Lot 2 as of the date the lot is taken out of operation.
6.2 Annual base rent shall be increased (a) on the first day of every third fiscal
year (each such date, an "Adjustment Date ") by the amount of increase in the Consumer
Price Index for All Urban Consumers (Los Angeles- Riverside - Orange County) (the
"Index "), for the period of three (3) years immediately preceding such Adjustment Date
(comparing (i) the change in the Index for the month of April immediately prior to the
effective date of the Long Term Lease, with (ii) the Index for the month of April
immediately preceding the Adjustment Date), but in no event shall the increase be less than
two percent (2 %) nor more than four percent (4 %) per year, for a cumulative total increase
of not less than six percent (6 %) and not more than twelve percent (12 %) in any three year
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7. TIME OF RENT PAYMENT. Base rent payments shall begin to accrue on the date on
which the City delivers to Developer possession of the premises, which shall mean the date on
which the Developer requests and the City agrees, in writing, to cease operation of Parking Lot
2. Rent shall be due and payable in advance on the first day of the first year of the lease term
and first day of each fiscal year every year of the lease term thereafter.
8. INTENTIONALLY OMITTED.
9. INTENTIONALLY OMITTED.
10. DEVELOPER DILIGENCE; LEASE "AS IS." Developer shall perform at its cost and
expense such due diligence investigations of Parking Lot 2 as Developer determines to be
appropriate. The City shall lease Parking Lot 2 to Developer on an "AS IS" basis, without any
representation or warranty regarding the condition of such property. City shall not be responsible
in any way for cleaning, removing, monitoring, cataloguing or otherwise addressing sub -soil
conditions, archeological conditions, hazardous materials, etc. that may be found in the Project
Area and the parties shall execute any additional agreements necessary to ensure that Developer
will assume full responsibility for such costs.
11. FINAL PROJECT ENTITLEMENTS.
11.1 The City acknowledges and agrees that Developer has successfully
completed the processing of all discretionary land use approvals needed to proceed with the
final design of the Project. Building permits and other regulatory permits consistent with
conditions of discretionary entitlements and mitigations required by the certified Final EIR,
and any subsequent environmental review, must be obtained in order for construction to
proceed.
11.2 The City acknowledges that Developer has provided to the City with respect
to the Project, as entitled, a construction phasing plan that has been approved by the
Community Development Director. The Parties acknowledge that if any significant changes
are made to the project subsequent to the date on which the Final Project Entitlements were
approved by the City Council, then the Developer will be required to submit such changes to
and obtain Director approval of a revised construction phasing plan.
12. CONDITIONS TO LEASE EXECUTION. The obligations of the Parties to proceed
with the Long Term Lease shall be subject to the waiver or satisfaction of the following
conditions.
12.1 DEVELOPER REQUIREMENTS. Subject to Paragraph 3 of this
Agreement, the City shall be obligated to enter into the Long Term Lease contemplated by
this Agreement if and only if Developer has satisfied or legally bound itself to satisfy the
following conditions or the City has waived the conditions:
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(a) Developer has obtained final design approval to proceed with the Project
in accordance with the City's normal design review requirements, which shall be subject to the
City Council's final approval[this condition shall not be waived by the City];
(b) The proposed Lease has received final environmental approval and any
subsequent Project environmental review necessitated by any changes by the Developer to the
Project has been completed [this condition shall not be waived by the City];
(c) Developer has obtained or agrees to obtain, by a date to be specified by
the City; building permits for the Project, consistent with the design finally approved by the San
Luis Obispo City Council;
(d) City shall have no obligation to permit Developer to occupy Parking Lot
2 and City shall retain the right to operate and retain all revenues from its parking lot until such
time as Developer has obtained a final, binding commitment letter from a lender of Developer's
choice to fund the construction costs of the Project, obtained building permits to construct the
Project consistent with the City's approved phasing plan, and has requested and received written
authorization from the City to take Parking Lot 2 out of operation; and
(e) Developer shall agree to include a provision to permit termination of the
Long Term Lease and reversion of all rights in and to Parking Lot 2 to the City if Developer fails
to meet agreed upon benchmarks toward Project completion, which shall be set forth in the Long
Term Lease;
(f) Developer has provided a plan that is acceptable to the City and addresses
trash and delivery access, during construction, to the businesses along Higuera Street that
currently depend upon Parking Lot 2 and the alleyway adjacent to it for these purposes.
12.2 CITY REQUIREMENTS. Developer shall be obligated to enter into the
Long Term Lease if and only if the City has satisfied or legally bound itself to satisfy the
following conditions, or the Developer has waived the conditions:
(a) City agrees to allow Developer to pursue a subdivision of the airspace
above Parking Lot 2 as necessary to facilitate the development of the Project as finally approved
by the San Luis Obispo City Council; and
(b) City agrees to convey to Developer fee ownership of the airspace lots
created by any subdivision that may be approved, free and clear of all liens and encumbrances
securing monetary obligations and free and clear of all covenants, conditions, and restrictions
(other than those hereafter negotiated between the City and Developer in connection with the
Long Term Lease and the Project). Developer acknowledges that City shall retain fee
ownership of the ground below any subdivided airspace.
13. DATE FOR SATISFACTION OF ALL TERMS AND CONDITIONS. All terms and
conditions contained herein shall be completed by and construction of the Project on Lot 2 shall
begin no later than five years from the date of execution of this Agreement ( "Date of
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Completion "). Failure to satisfy all terms and conditions by the Date of Completion, without a
party waiving a term or condition, or legally binding itself to satisfy a term or condition,
terminates this Agreement. The City Manager shall have the authority to extend the Date of
Completion for a time period not to exceed one year.
14. INTENTIONALLY OMITTED.
15. IN -LIEU PARKING FEES. If the Project fails to provide all on -site parking required
under applicable provisions of the City's Zoning Code, then the Developer will be required to
pay the generally applicable in -lieu parking fee at the time building permits are issued.
16. LOAN TO DEVELOPER. The City, will provide a loan to the Developer, at no cost to
the City, in the original principal amount of Five Hundred Thousand Dollars ($500,000), which
Developer shall repay as follows:
16.1 INTEREST RATE. The loan shall bear interest at a fixed annual rate equal
to the Wall Street Journal Prime Lending Rate in effect on the date of the loan plus two
percent (2.0 %). For purposes of the foregoing, the term "Wall Street Journal Prime Lending;
Rate" means, as of any day, the "U.S. Prime Rate" published in The Wall Street Journal's
"Money Rate" table on the last business day immediately prior to the day as of which such
rate is being determined. If such table or rate is not published as of such date, then the term
"Wall Street Journal Prime Lending Rate" shall be deemed to be a reference to the prime
lending rate of Bank of America in effect on the last business day immediately prior to such
date. If Bank of America does not then exist or does not then publish its prime lending rate,
then the "Wall Street Journal Prime Lending Rate" shall be the prime lending rate of the
City's principal banking institution on the last business day immediately prior to the date as
of which such rate is being determined.
16.2 AMORTIZATION; REPAYMENT; MATURITY. The principal of and
interest on such loan shall be repayable in equal monthly installments of principal and
interest based upon 25 -year amortization, provided that the loan shall mature and be
repayable in full ten (10) years following the date of such loan.
16.3 SECURITY. The obligations of Developer under such loan shall be
secured by a deed of trust encumbering title to the Hotel to be constructed as part of the
Project. The lien of such deed of trust shall be a second - priority lien, subordinate to the lien
of a first- priority deed of trust securing financing in an original principal amount of not
more than 65% of the fair market value of the Property (as built, and with rents stabilized).
16.4 USE OF PROCEEDS. Developer shall use the proceeds of such loan to
finance only that part of the Project that is owned by Developer or other persons other than
the City or any governmental agency or authority, and for the avoidance of doubt, no
portion of the proceeds of such loan shall be used to construct improvements on any real
property owned by the City or to fund the cost of the public improvements to be constructed
by Developer pursuant to Paragraph 17, below.
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17. DEVELOPER PARTICIPATION IN GARDEN STREET IMPROVEMENTS.
17.1 DESIGN AND CONSTRUCTION. Developer shall complete the design
and construction of physical improvement to Garden Street substantially consistent with the
Garden Street Makeover Plan (as memorialized in those certain "Garden Street
Improvements Construction Documents" prepared by "firma" (Specification No. CP
#90088B) dated 1214103) (the "Garden Street Improvements "). The design for said Garden
Street Improvements shall be submitted to the City as part of the final Garden Street
Terraces Project architectural design review process consistent with Recital H and
Paragraph 11 of this Agreement.
17.2 COSTS. Subject to increase pursuant to Paragraph 4, above, the aggregate
costs of such physical improvements shall be paid solely by Developer.
17.3 CONSTRUCTION OF PROJECT. As part of the Project, Developer shall
assure high levels of maintenance, uniformity of street facade appearance and maintenance,
adequate security and a variety of other enhancement improvements to the streetscape of
Garden Street from Marsh Street to Higuera, some of which will occur on public property or
on property not owned by the Developer. Developer shall construct all of the Garden Street
improvements, concurrently with project construction on Garden Street, the cost and
expense of which shall be paid in accordance with Paragraph 17.2, above.
18. PREVAILING WAGES.
18.1 Developer shall be responsible for evaluating the applicability of and, to the
extent applicable, complying with prevailing wage requirements, if any, that may be
applicable to work associated with the Garden Street Makeover Plan improvements that
Developer will construct. The Long Term Lease to be executed prior to construction of the
Project shall provide that the Developer shall hold harmless and indemnify the City against
any and all claims, liabilities and /or costs of any kind arising from or as a result of
Developer's contracting for and /or construction of the Garden Street Makeover Plan
improvements .
19. DOCUMENTATION. The parties agree that, at a minimum, the documentation to be
created as a result of this Agreement may include the following:
19.1 Lease Agreement;
19.2 Loan Documents and security instrument(s); and
19.3 A Performance Bond for the Garden Street Makeover improvements.
19.4 Conveyance of airspace rights to Developer.
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20. RESPONSIBILITIES OF THE PARTIES
20.1 DEVELOPER. It shall be the responsibility of the Developer diligently to
pursue final design approval for the Project and pay all costs associated with Project
approvals, including any environmental processing and reimbursement to the City for third
party expenses associated with the Long Term Lease, subsequent or supplemental
environmental review necessitated by subsequent changes to the Project to comply with
approved Project conditions or mitigations, and for third party expenses (without any mark
up) incurred after approval of this Agreement in the preparation of any documents necessary
to implement this Agreement and finalize other documents contemplated herein.
20.2 CITY. The City, in its role as landowner, shall cooperate with and furnish
information to the Developer regarding the properties included within the Project. With
regard to zoning, land use, and environmental and design review and /or approval, the City's
responsibility shall be limited to providing that level of interaction, timely response, and
review as provided for in state law, regulations and ordinances of the City of San Luis
Obispo.
21. OTHER MUNICIPAL PROCESSING. The Parties understand and agree that those
approvals required of the City acting in its governmental or regulatory capacity are separate and
distinct from those approvals required by the City under this Agreement. Notwithstanding
anything to the contrary in this Agreement, nothing herein shall be interpreted to mean that the
City is in any way waiving, limiting, or weakening any regulatory or police power the City may
have in any of its governmental capacities. It is intended that the Developer shall be obligated to
fulfill such requirements as may be imposed by the City or any other governmental agency or
authority having or exercising any jurisdiction over the Project or over any construction to be
undertaken by the Developer in, on or about said Project. Refusal or failure by the City in its
governmental or regulatory capacity to take a legislative action, issue any permit, license or any
other action or approval sought by the Developer for construction of improvements on, or
development of, the Project shall not constitute a breach of this Agreement.
22. HOLD HARMLESS AND INDEMNIFICATION. Developer agrees to hold harmless,
defend and indemnify the City, its agents, officers and employees from and against all actions,
damages, claims, losses or expense of every type and description to which they may be subjected
or put, by reason of, or resulting from any claims arising out of or related to this Agreement.
Notwithstanding the foregoing, no indemnification is given hereunder for any action, damage,
claim, loss or expense to the extent directly attributable to the intentional acts or negligence of
the City or its officers, directors, employees or agents.
23. POSSESSORY INTEREST TAXES. The Developer (a) acknowledges that if the
Project contemplated by this Agreement is subsequently approved and constructed, then a
possessory interest subject to property tax may be created and owed by Developer, and the
Developer or its interest in the Project and the improvements thereon may be subject to payment
of property taxes levied on such possessory interests, and (b) agrees to pay all such taxes,
however categorized or calculated.
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24. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California (without regard to application of the
conflict -of -law principles thereunder). Upon the request of either party, each of the undersigned
shall make, execute, and deliver such documents and instruments, and shall take such other
actions, as may be reasonably necessary to carry into effect the agreements of the parties
described in this Agreement. If at any time any provision of this Agreement is or becomes
illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions hereof, nor the legality, validity, or
enforceability of such provision under the law of any other jurisdiction, will in any way be
affected or impaired thereby, and the remainder of the provisions of this Agreement will remain
in full force and effect. This Agreement (a) represents the entire understanding between the
parties regarding the subject matter hereof, and supersedes and replaces the 2010 MOU and all
other prior and contemporaneous understandings, whether oral or written, regarding such subject
matter, and (b) may not be modified or amended, except by a written agreement executed after
the effective date hereof by the party sought to be charged by such modification or amendment.
If any action is commenced to construe or enforce this Agreement or the rights and duties of the
parties hereunder, then the party prevailing in that action shall be entitled to recover its costs and
reasonable attorneys' fees in that action, as well as such costs and fees of enforcing any
judgment entered therein. This Agreement may be executed in counterparts, each of which shall
be deemed an original and both of which, taken together, shall constitute one and the same
instrument, binding on each signatory thereto. A copy of this Agreement that is executed by a
party and transmitted by that party to the other party by facsimile or as an attachment (e.g., in
".tif' or ".pdf' format) to an email shall be binding upon the signatory to the same extent as a
copy hereof containing that party's original signature.
[Signatures appear on the following page]
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Page 13
IN WITNESS WHEREOF, the undersigned have executed this Agreement, effective as
of the "Effective Date" set forth above.
"CITY:" "DEVELOPER:"
CITY OF SAN LUIS OBISPO GARDEN STREET SLO PARTNERS, L.P.,
A Municipal Corporation
By= --
City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
City Attorney
13
a California limited partnership
By DOWNTOWN INVESTORS, LLC, a
California limited liability company, its
general partner
By
Hamish Marshall, its Manager
EXHIBIT I
OWNERSHIP OF PROJECT AREA
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Garden Alley
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Parking Lot #2
APN: 002 -424 -022
Ground Level Plot Map
n� Scele:l " -50' Rev: 03.12.06
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N55'08'46 "E 29651'
Marsh Street
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Denotes City -Owned Parcel
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Legend
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Denotes City -Owned Parcel
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* (Marsh Street Associates, LLQ