20-0601_SCHWARTZ FAMILY TRUST & STEVE HUFSTEDLER REVOCABLE TRUST_Ground LeaseGROUND LEASE
THIS GROUND LEASE (this "Lease") is dated the June 1, 2020 (the "Execution Date"),
and entered into by and between THE S. ALAN SCHWARTZ AND JACQUELINE F.
SCHWARTZ FAMILY TRUST dated April 26, 1985 and THE STEVE HUFSTEDLER
REVOCABLE TRUST under DECLARATION OF TRUST dated November 10, 2017
("Landlord') and the CITY OF SAN JUAN CAPISTRANO, a municipal corporation and
general law city ("City" or "Tenant"). Landlord and Tenant are hereinafter sometimes
individually referred to as "Party" and, collectively, referred to as the "parties."
RECITALS
A. Landlord owns the land located in the City of San Juan Capistrano,
County of Orange, State of California, comprised of portions of Assessor Parcel Number
668-241-38, and legally described and depicted in Exhibit A attached hereto and
incorporated herein (the "Premises").
B. The Tenant is interested in improving the appearance of the entry to the
City and seeks site control and authorization to improve the northern corner parcel of the
Del Taco site with landscaping including a focal specimen tree and citrus grove, and
hardscape including a low stone wall ( the "Project").
C. The Tenant desires to lease the Premises from Landlord and Landlord
wishes to lease the Premises to Tenant on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the provisions set forth hereinafter, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
1. PREAUSES
Landlord leases to Tenant and Tenant leases from Landlord, the Premises, upon the terms
and conditions contained herein. The Premises are being leased in their "as is" condition.
Tenant shall prepare, at its sole cost and expense, any request or application required for
improvements on the Premises.
2. TERM
2.1 Term. The initial term of this Lease shall be thirteen (13) years (the "Initial
Term") corresponding with Del Taco's, or a successor restaurant -operator's, current lease with
Landlord, commencing upon the Execution Date (the "Commencement Date") and expiring on
June 1, 2033. Provided that Tenant is not then in default of this Lease Tenant shall have the
option to extend the term of this Lease for three (3) additional five (5) year extensions (the
"Extended Term") at One Dollar ($1.00) per year. Tenant's right to use each five-year extension
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option is conditioned on Del Taco, or a successor restaurant operator, exercising their right to
extend their lease. Tenant will only be able to exercise each five-year extension option if Del
Taco, or a successor restaurant operator, has elected to exercise their corresponding five-year
lease extension. To exercise any of Tenant's options to extend, Tenant must notify Landlord in
writing that it elects to exercise a Lease Extension Option on or before sixty (60) days before the
date of expiration of the Initial Term or Extended Term. The use of the word "Tenn" in this
Lease shall refer to the Initial Term and/or Extended Term, as applicable.
2.2 Holdover. Tenant has no right under the Lease to retain possession of the
Premises or any part thereof beyond the Term. In the event the Landlord chooses to accept any
holdover possession of the Premises beyond the Tenn, such holdover tenancy shall be on a
month-to-month tenancy basis.
3. RENT
The annual rent for the Premises shall be equal to One Dollar ($1.00) per year and be
payable yearly commencing on the Commencement Date and continuing on the yearly
anniversary of the Commencement Date thereafter.
4. USE OF PREMISES
4.1 Use. Tenant and its subtenants may use the Premises in order to conduct
landscaping and hardscaping improvements (the "Improvements") for the Project, as depicted in
Exhibit B attached hereto and incorporated herein. The preliminary cost estimates for the
Improvements are described in Exhibit C attached hereto and incorporated herein.
4.2 Nuisance. Tenant shall not use, suffer or permit any person or persons to use the
Premises or improvements thereon other than the uses permitted in Section 4. 1, nor in any
manner that will tend to create waste or a nuisance.
4.3 Condition of Premises. Tenant acknowledges that prior to the delivery of
possession of the Premises to Tenant, Tenant inspected the Premises and agreed to take the same
"AS IS" and Tenant further acknowledges that the taking of possession of the Premises by
Tenant conclusively evidences that the Premises were in satisfactory condition at the time such
possession was so taken. Landlord has made no representations, warranties or guaranties
regarding the Premises or its conditions other than those expressly contained within this Lease.
4.4 Non -Discrimination. There shall be no discrimination against or segregation of
any person, or group of persons, on account of race, religion, national origin, ancestry, sex,
sexual orientation, age, physical handicap, marital status, or medical condition in the lease,
sublease, transfer, use, occupancy, tenure, or enjoyment of the Premises or any part of the
Premises or any operations or activities conducted on the Premises or any part of the Premises,
nor shall Tenant or any person claiming under or through Tenant establish or permit any such
practice or practices of discrimination or segregation with reference to the selection, location,
number, use of occupancy of tenants, subtenants, or vendees of the Premises. Any sublease or
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assignment that may be permitted under this Lease shall also be subject to the non-discrimination
clauses contained in this Section 4.4.
4.5 Right of Entrv/Waiver of Good Faith Improver. Tenant shall have the right to
enter upon the Premises on the Commencement Date in order to landscape and improve the
Premises.
5. CONSTRUCTION OF IMPROVEMENTS ON PREMISES
Tenant shall, at its sole cost and expense, design, construct and install in a good and
workmanlike manner any landscape and hardscape improvements desired by Tenant upon the
Premises, as provided below. Tenant shall carry out the construction, installation and
maintenance of any improvements on and about the Premises in conformity with all applicable
federal, state and local laws, ordinances and regulations ("Governmental Requirements").
Tenant shall, at its own expense, obtain and maintain any and all City approvals for the
construction of the improvements and operation of any activities on the Premises. The
improvements shall not obstruct the view that pedestrians or vehicles have of Del Taco's
restaurant or any monument signs. In addition, landscaping of the Premises shall be maintained
by the Tenant in such a way that the landscaping will not block the view of Del Taco's restaurant
or signage at any time. The Landlord shall have the right to approve or reject the design of all
improvements. Approvals shall not be unreasonably withheld. Should the Landlord redevelop
the property in the future, Tenant agrees to credit landscaping improvements associated with this
Lease towards any comparable landscape improvements required of the future redevelopment of
the property.
6. SIGNS
Tenant shall have the right to install and maintain, at Tenant's sole cost, one or more
signs, provided all such signage shall meet any applicable Governmental Requirements and
Tenant has received such permits therefor as may be necessary.
7. TAXES
7.1 Personal Property Taxes. Tenant is an exempt entity for purposes of property
taxes and is not responsible for any taxes as a result of this Lease. If the property taxes increase
because the Tenant's improvements cause an increase in the property's assessed valuation, the
Tenant shall pay to the Landlord annually the increased amount that is attributable to their
improvements.
7.2 Real Property Taxes. Landlord shall pay all real property taxes, general and
special taxes and assessments ("Real Property Taxes") levied and assessed against the Premises.
If the property taxes on the Leased Premises increase because the Tenant's improvements cause
an increase in the property's assessed valuation, the Tenant shall pay to the Landlord, through a
reimbursement, the increased amount that is attributable to their improvements. Landlord will
bill the Tenant annually requesting such a reimbursement, and Tenant will pay Landlord within
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thirty (30) days of receiving a bill. Landlord will provide Tenant with copies of Secured
Property Tax Bills from before and after installation of the Tenant improvements as evidence of
the increase of property taxes.
8. INSURANCE
8.1 Insurance. Tenant shall at its sole cost and expense, procure and maintain, or
cause to be procured and maintained, during the Term of this Lease the insurance described in
this Section 8.1. Tenant shall have no right to self -insure. Tenant shall, at its sole cost and
expense, during the Term hereof, keep in full force and effect: (i) a policy of public liability and
property damage insurance with respect to the Premises, and the business operated by Tenant
and any subtenants of Tenant in the Premises, in which the limits of public liability shall be not
less than Two Million Dollars ($2,000,000.00) per occurrence, and in which the limit of property
damage liability shall be not less than Five Hundred Thousand Dollars ($500,000.00); and (ii)
workers compensation coverage as required by law. Tenant expressly acknowledges that
Landlord has not and will not provide any insurance whatsoever for the benefit of Tenant.
8.2 Policy Requirements. All insurance required to be carried by Tenant under this
Lease shall name Landlord as an additional insured as to coverage of the Premises, as its interest
may appear, in the form of a separate endorsement containing the language: "This insurance
shall be primary and non-contributing with any other insurance carried by Landlord," and
certified copies of all policies shall be delivered to Landlord by Tenant at least ten (10) calendar
days prior to Tenant's opening for business in the Premises. Each policy of insurance to be
obtained by Tenant under this Lease shall (i) be written as primary policies or under one or more
umbrella and/or master policies, and (ii) be written by insurance companies having a Best's
rating of "A-" or better.
8.3 Waiver of Subrogation. Landlord and Tenant each hereby waives any and all
rights of recovery against the other and against the officers, employees, agents and
representatives of the other for loss of or damage to such waiving party of its property or the
property of others under its control, arising from any cause insured against under any policy of
insurance carried by such waiving party, to the extent that such loss or damage is recoverable
under said insurance policies. Tenant and Landlord shall each obtain and furnish evidence to the
other, upon request, of the waiver by such party's insurance carrier of any right of subrogation
against the other party.
9. UTILITIES
Tenant shall pay, directly to the appropriate supplier, for all water, sewage, telephone,
computer, telecommunication, cable, gas, power and electric current and all other utilities used
by Tenant on the Premises, from and after the delivery of possession of the Premises by
Landlord. If any such charges are not paid when due, Landlord may, after notice to Tenant, pay
the same, and any amount so paid by Landlord shall thereupon become due to Landlord from
Tenant together with interest thereon. Tenant shall, at Tenant's expense, install its own meter(s)
and service distribution for all utilities utilized in or serving the Premises.
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10. INDEMNITY OF LANDLORD
10.1 Tenant's Obligation. Tenant shall indemnify, defend and hold harmless Landlord,
its officers, partners, agents, and employees ("Landlord's Agents") from and against any claims,
damages, costs, expenses, or liabilities (collectively "Claims") arising out of or in any way
connected with this Lease including, without limitation, Claims for loss or damage to any
property, or for death or injury to any person or persons, except for such Claims arising from the
gross negligence or willful misconduct of Landlord or Landlord's Agents.
10.2 Landlord's Obligation. Landlord shall indemnify, defend and hold harmless
Tenant and its officers, partners, agents, tenants and employees ("Tenant's Agents") from any
Claims connected with this Lease that arise from the gross negligence or willful misconduct of
Landlord or Landlord's Agents.
All indemnifications within this Lease shall survive the expiration or earlier termination
of this Lease.
11. EXEMPTION OF LANDLORD FROM LIABILITY
Except to the extent attributable to the gross negligence or willful misconduct of
Landlord or Landlord's Agents, Landlord shall not be liable to Tenant and Tenant hereby waives
all claims against Landlord for any injury or damage to any person or property in or about the
Premises, by or from any cause whatsoever and whether the said damage or injury results from
conditions arising upon the Premises or from other sources. The provisions of this Section 11
shall survive the expiration or earlier termination of this Lease.
12. TENANT ESTOPPEL CERTIFICATE
Within twenty (20) business days after written request by Landlord, Tenant shall execute
and deliver to Landlord an estoppel statement in such form as Landlord may reasonably request.
Tenant's failure to deliver such statement within twenty (20) business days of Landlord's written
request therefore shall constitute, without limitation of any of Landlord's other rights or remedies
with respect to such default, an irrevocable, binding agreement of Tenant (i) that this Lease is in
full force and effect, without modification except as may be represented by Landlord, and (ii)
that there are no uncured defaults in Landlord's performance hereunder.
13. LANDLORD ESTOPPEL CERTIFICATE
Within twenty (20) business days after written request by Tenant, Landlord shall execute
and deliver to Tenant an estoppel statement in such form as Tenant may reasonably request. Any
such statement may be conclusively relied upon by any such party. Landlord's failure to deliver
such statement within twenty (20) business days of Tenant's written request therefore shall
constitute, without limitation of any of Tenant's other rights or remedies with respect to such
default, an irrevocable, binding agreement of Landlord (i) that this Lease is in full force and
effect, without modification except as may be represented by Tenant, (ii) that there are no
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uncured defaults in Tenant's performance hereunder nor any fact, act, omission or condition
which, with notice or lapse of time or both, would constitute a default of Tenant, and (iii) that all
improvements have been constructed in accordance with the requirements of this Lease.
14. REPAIRS AND MAINTENANCE
14.1 Tenant's Obligation to Repair and Maintain. Tenant shall, at its own cost and
expense, during the Term of this Lease, keep the Premises, including all improvements
constructed by Tenant thereon, in a good, clean, safe and secure condition and shall make all
necessary repairs and replacements with materials and workmanship of the same character, kind
and quality as the original.
14.2 Landlord's Obligation to Repair and Maintain. In the absence of any damage to
the interlocking block wall along the easterly side of the premises ("Retaining Wall") caused by
the Tenant, Landlord shall maintain the Retaining Wall. Tenant will take care not to damage
Retaining Wall during construction of improvements or subsequent maintenance of the
improvements. In addition, Tenant will not allow excessive irrigation water to reach the
Retaining Wall and will not direct rainwater towards the Retaining Wall. Any damage to the
Retaining Wall caused by the Tenant will be immediately repaired by the Tenant at their sole
expense. Also, any damage to Tenant's improvements caused by failure of the retaining wall
that is the result of tenant's construction or maintenance activities, will be repaired by the Tenant
at their sole expense.
14.3 Landlord's Right to Make Repairs. If Tenant fails to maintain the Premises, or
any part thereof, in good condition, within thirty (30) business days after written notice from
Landlord specifying the work required (unless the nature thereof reasonably requires additional
time), then in such event Landlord shall have the right to perform the maintenance on behalf of
and for the account of Tenant and all costs reasonably incurred by Landlord to perform such
maintenance shall be paid to Landlord by Tenant within ten (10) business days after Landlord's
demand therefor with supporting documentation.
15. ALTERATIONS
15.1 Approved Alterations. Any improvements not related to the Improvements shall
be in accordance with paragraph 5.0 and shall require the prior written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed. Any and all
improvements to the Premises shall be in conformance with the requirements of all
Governmental Requirements.
15.2 Work Standards. In performing the work of any improvements, Tenant shall use
a qualified, licensed contractor. Before commencing any such improvements in or about the
Premises, Tenant shall notify Landlord in writing of the expected date of commencement
thereof. Landlord shall have the right, but not the responsibility to, at any time and from time to
time to post and maintain on the Premises such notices as Landlord deems necessary to protect
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the Premises and Landlord from the liens of mechanics, laborers, material men, suppliers or
vendors..
15.3 Mechanic's and Other Liens. With regards to any improvements performed by
the Tenant, it is the Tenant's sole responsibility to (i) keep the Premises, at all times during the
Term hereof, free from liens and other liens of like nature created or claimed by reason of
transactions made by Tenant and (ii) at all times fully protect, defend and indemnify Landlord
against all such liens or claims which may ripen into such liens and all expenses arising from
such liens or claims.
16. TITLE TO IMPROVEMENTS
Tenant shall have title to all improvements on or to the Premises constructed by Tenant
prior to or after Commencement Date, including without limitation, all structures and other
improvements installed, relocated, constructed or erected by Tenant, and such title shall remain
in Tenant during the Term of this Lease. Upon termination of this Lease, whether by expiration,
cancellation or otherwise, title to all improvements on the Premises shall pass to and vest in
Landlord unless removed prior to the end of the Term by Tenant. If not removed, all structures
and other improvements installed, relocated, constructed or erected by Tenant upon the Premises
shall remain upon and be surrendered with the Premises as part thereof upon termination of this
Lease. Title to all equipment, furnishings and trade fixtures placed by Tenant upon the Premises
shall remain in Tenant, and replacements, substitutions and modifications thereof may be made
by Tenant throughout the Term of this Lease, and Tenant may remove the same upon termination
of this Lease; provided that Tenant shall repair to the satisfaction of Landlord any damage to the
Premises caused by such removal. Any equipment, furniture, furnishings and trade fixtures
remaining upon the Premises after termination of this Lease shall become the property of
Landlord. Upon termination of the Lease, Landlord can accept some or all of the improvements
that Tenant does not remove. Any improvements not accepted by Landlord will be removed by
Tenant. Alternatively, Landlord may require Tenant to restore Premises to the condition they
were in prior to Tenant taking possession of the Premises.
17. DAMAGE, DESTRUCTION AND TAKING
In the event of a fire or any other casualty to all or a portion of the Premises or in the
event of a Taking of any portion or all of the Premises, Landlord or Tenant may terminate this
Lease upon written notice to the other party, such termination to be effective upon the date of
such damage or upon the date the condemning authority takes title, as the case may be. -Absent
any termination, Tenant must undertake to restore the Premises to the same condition as when
the Improvements were completed. As used in this Section 17, "Taking" shall mean any taking
or appropriation for public or quasi -public use by the right of eminent domain or otherwise by a
taking in the nature of inverse condemnation, with or without litigation, or a transfer by
agreement in lieu thereof. Tenant (along with its successors and/or assignees) forever releases,
discharges, and holds Landlord harmless for any and all damages, losses, claims and/or demands
associated with or arising out of a "Taking" of the Premises, or any portion thereof, as described
herein.
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18. TERMINATION
At the conclusion of the Initial Term or an Extended Term, and provided that Del Taco
restaurant, or successor restaurant operator, does not choose to extend the term of its Lease by
exercising a Lease Extension Option, Landlord or Tenant shall have the right to terminate this
Lease for any reason by giving thirty (30) days' written notice to the other of its intent to so
terminate and in that event, this Lease shall terminate thirty (30) days thereafter. If Tenant
terminates this Lease under this Section 18 prior to the expiration of the Tenn, Tenant shall
reimburse Landlord the Rent for each year remaining on the Term of this Lease, Payment of all
such sums shall be made by Tenant upon the termination of this Lease.
19. MEMORANDUM OF LEASE
A Memorandum of Lease, substantially in the form attached to this Lease as Exhibit D,
shall be completed and executed by both parties concurrently with the execution of this Lease.
Such Memorandum of Lease shall be recorded forthwith upon execution of this Lease.
20. ASSIGNMENT, SUBLETTING AND ENCUMBRANCE
20.1 Tenant's Right to Assign. Tenant may sublet the whole or any part of the
Premises. Subject to the foregoing, Tenant shall not assign or transfer this Lease or any interest
herein or right granted hereby without the written consent of Landlord, which shall not be
unreasonably withheld, delayed or conditioned.
20.2 Landlord's Right to Assign. Landlord shall have the right, but not the obligation,
to assign this Lease.
21. MISCELLANEOUS
21.1 Notices. Any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered and received whether actually received or not: twenty-four (24)
hours after sent by USPS, UPS, Airborne, Federal Express, or a comparably reliable national air
courier service (i.e., one which delivers service in at least 48 states) provided that any such
courier service provides written evidence of delivery; or seventy-two (72) hours after deposited
in the United States Mail, postage prepaid, Registered or Certified Mail, Return Receipt
Requested, addressed to the parties hereto at the respective addresses set out opposite their
names below, or at such other addresses as they have theretofore specified by written notice
delivered in accordance herewith:
LANDLORD: The Schwartz Family Trust
13402 Eton Pl.
Santa Ana, CA 92705
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TENANT: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attention: City Manager
21.2 No Waiver. One of more waivers of a breach of any covenant, term or condition
of this Lease by either party shall not be construed by the other party as any waiver of a
subsequent breach of the same covenant, term or condition. The consent or approval of either
party to or of any act by the other party of a nature requiring consent or approval shall not be
deemed to waive or render unnecessary consent to or approval of any subsequent or similar act.
21.3 No Partnership. Nothing herein contained, either in the method of computing rent
or otherwise, shall create between the parties hereto, or be relied upon by others as creating, any
relationship of partnership, association, joint venture, or otherwise. The sole relationship of the
parties hereto shall be that of landlord and tenant.
21.4 Governing. The laws of the State of California shall govern the validity,
performance and enforcement of this Lease. Should either party institute legal suit or action for
the interpretation of this Lease or the enforcement of any obligation contained herein, the venue
of such action shall be in Orange County, California, and both parties expressly consent to such
venue. Although any printed provisions of this Lease may have been drawn by one party or the
other, this Lease represents the negotiated agreement of the parties and shall not be construed
against either party as a result thereof.
21.5 Attorneys' Fees. If at any time during the Term of this Lease, or thereafter, either
Landlord or Tenant shall institute any action or proceeding against the other relating to the
provisions of this Lease or any default hereunder, then the unsuccessful party in such action or
proceeding shall reimburse the prevailing party therein for the actual attorneys' fees and costs of
suit reasonably incurred by the prevailing party. The "prevailing party" as used in this Lease
includes a party who dismisses an action for recovery hereunder in exchange for sums allegedly
due, performance of covenants allegedly breached or consideration substantially equal to the
relief sought in the action.
21.6 Binding Effect. The terms and agreements as contained in this Lease shall apply to,
run in favor of and shall be binding upon and inure to the benefit of the parties hereto, and their
respective heirs, executors, administrators, personal representatives and assigns and successors in
interest.
21.7 No Prior Agreements. It is understood that there are no oral agreements or
representations between the parties hereto affecting this Lease, and this Lease supersedes and
cancels any and all previous negotiations, arrangements, brochures, agreements or
representations and understandings, if any, between the parties hereto or displayed by either
party to the other with respect to the subject matter thereof, and none thereof shall be used to
interpret or construe this Lease. Except as otherwise expressly set forth herein, there are no other
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representations or warranties between the parties and all reliance with respect to representations
is solely upon the representations and agreements contained in this document.
21.8 Authority of Signatories. The Parties agree that each individual executing this
Lease represents and warrants that he or she is duly authorized to execute and deliver this Lease
on behalf of Party.
21.9 Titles for Convenience Only. The titles of articles and sections herein are for
convenience only and do not in any way define, limit or construe the contents thereof.
21.10 Invalidity of Provisions. If any provision of this Lease shall be determined to be
void by any court of competent jurisdiction, then such determination shall not affect any other
provisions of this Lease and all such other provisions shall remain in full force and effect; and it
is the intention of the parties hereto that if any provision of this Lease is capable of two
constructions, only one of which would render the provision valid, then the provision shall have
the meaning which renders it valid.
21.11 Excusable Delay. Any prevention, delay or stoppage due to strikes, lockouts,
labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes
therefore, governmental restrictions, governmental regulations, governmental controls,
governmental delays, enemy or hostile governmental action, civil commotion, fire or other
casualty, natural disaster and other causes beyond the reasonable control of the party obligated to
perform any tern, covenant or condition of this Lease (each an "Excusable Delay"), shall excuse
the performance by such party for a period equal to any such prevention, delay or stoppage.
21.12 Hazardous Materials. The parties agree as follows:
A. Tenant shall not store or possess any material that any government agency
whose jurisdiction includes the Premises defines as a hazardous material ("Hazardous
Substance") on the Premises. At all times and in all respects, Tenant shall comply with all
Governmental Requirements, including, but not limited to, the Federal Water Pollution Control
Act (33 U.S.C. Section 1251, et seq.). Resource Conversation & Recovery Act (42 U.S.C.
Section 6901 et seq.), Safe Drinking Water Act (42 U.S.C. Section 300(f) et seq.), Toxic
Substances Control Act (15 U.S.C. Section 2601 et seq.), the Clean Air Act (42 U.S.C. Section
7401 et seq.), Comprehensive Environmental Response of Compensation and Liability Act (42
U.S.C. Section 9601 et seq.), California Health & Safety Code (Sections 25100 et seq. and 39000
et seq.), California Water Code (Section 13000 et seq.), and other comparable state laws
("Hazardous Materials Laws") relating to industrial hygiene, environmental protection or the
use, analysis, generation, manufacture, storage, disposal or transportation of any oil, flammable
explosives, asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous,
toxic, contaminated or polluting materials, substances or wastes, including, without limitation,
any "hazardous substances", "hazardous wastes", "hazardous materials" or "toxic substances"
under any such Hazardous Materials Laws (collectively "Hazardous Materials").
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B. Tenant shall in all respects handle, treat, deal with and manage any and all
Hazardous Materials in, on, under or about the Premises in total conformity with all applicable
Hazardous Materials Laws and prudent industry practices regarding management of such
Hazardous Materials.
C. Tenant and Landlord shall immediately notify the other in writing of. (i)
any enforcement, cleanup, removal or other governmental or regulatory action instituted,
completed or threatened pursuant to any Hazardous Materials Laws; (ii) any claim made or
threatened by any person against Tenant, the Premises, or any building relating to damage,
contribution, cost recovery compensation, loss or injury resulting from or claimed to result from
any Hazardous Materials; and (iii) any reports made to any environmental agency arising out of
or concerning hazardous substances located upon the Premises pursuant to the provisions of
California Health and Safety Code Section 25359.7. The parties hereby agree that this Section
21.12 constitutes the notice required pursuant to said statute and the parties hereby waive their
right to further notice pursuant to such statute to the extent described herein. The parties
acknowledge that Tenant shall maintain and use certain substances upon the Premises, which
may be classified as "hazardous substances" to clean, maintain and operate the Premises. The
parties acknowledge that the use of any of such substances which may be a "hazardous
substance" within the scope of Health and Safety Code Section 25359.7 shall not constitute a
breach of this Lease and shall require no further notice from Tenant. Tenant agrees, however,
that the use of other hazardous substances upon the Premises are not subject to the terms of this
notice and waiver and Tenant shall be obligated to report the existence of such other hazardous
substances pursuant to the requirements of Health and Safety Code Section 25359.7. In no event
shall Tenant be responsible for the removal of hazardous substances or Hazardous Materials
from the Premises that were in existence on the Execution Date.
21.13 Quiet Enjoyment. Tenant shall and may peaceably and quietly have, hold, and
enjoy the Premises in accordance with the provisions hereof.
21.14 Determination. Except as otherwise expressly provided herein, all approvals,
elections, consents, agreements, determinations, options and actions of City required pursuant to
this Lease shall not be unreasonably withheld, determined, made or taken.
21.15 Time. Time is of the essence with respect to the performance or observance of
each of the obligations, covenants and agreements under this Lease. Except where expressly
stated to be "business days", the word "days" shall mean "calendar days", and shall include any
holiday. `Business day" shall mean any day on which the City Hall is open to the public for City
operations.
21.16 Counterparts. This Lease may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which, taken together, shall constitute one and the
same instrument. The parties may execute and electronically deliver copies of this Lease and/or
counterpart signature pages, which electronic copies shall be equally as effective as delivery of
original executed counterparts.
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21.17 Amendments. Landlord and Tenant may amend this Lease at any time provided
that such amendments make specific reference to this Lease, are executed in writing, approved
by the City Council following any required public hearing or noticing, and are signed by a duly
authorized representative of each organization. Amendments shall not invalidate this Lease but
may relieve or release either party from certain obligations contained herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the date first
above written.
Landlord:
THE S. ALAN SCHWARTZ and JACQUELINE F.
SCHWARTZ FAMILY TRUST dated April 26,
1985 and THE STEVE HUFSTEDLER
REVOCABLE TRUST under DECLARATION OF
TRUST ted November 10, 2017
By:
By:
Sm "i w ux. . Trustee
Tenant:
CITY OF SANJUAN CAP TRANO
BY: yy
Benja a Sipjek6ty Manager /
ATTEST:
04 IRr
City (31jrk
Approved as to Form:
� 3
Jeff'Ballinger, City Attorney
13
61147.IOOSOU2716497.1
EXHIBIT A
LEGAL DESCRIPTION AND DEPICTION
RECORDING REQUESTED BY
DEPARTMENT OF TRANSPORTATION
WHEN RECORDED MAIL TO:
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
1750 E. 4 -STREET, SUITE 100
SANTA ANA, CALIFORNIA 92705
ATTN: EVANGELINA WASHINGTON
RAN TITLES & ESCROW
RAN Map No.: E120M APN: NIA
DIRECTOR'S DEED
GRANT
0 0 0 2 2
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk-Recorder�rl 'I
• f R 0 0 1 0 1 9 1 3 0 7 s.
2018000241488 8:48 am 07102!18
37 416 D10 1123
6.60 6.60 0.00 0.00 30.00 0.00 0.000.000.00 0.00
Tho undorslpod gnuftrisl s1
Doeunrartary trnabr tax Is $ S fid -2,6
Compuod on W value of property conveyed, or
Camp" on foci vWw loss value of Gens or enamb wMa
M"WW a at ume of sale,
_ UnMomporated Area X_ CRy of San Juan Ceplalrano
Distrld
County
Roma
Postrrdle
Number
OD102499.01-01
12
ORA
5
9.6
102499.2
102499.3
The State of CalNamla, acting by and through its Director of Transportation, hereinatter called STATE,
hereby grants to
The S. Alen Schwartz and Jacqueline F. Schwartz Family Trust dated April 26, 1985 and The Steve
Hufstedler Revocable Trust under Declaration of Trust dated November 10, 2017,
hereinafter called GRANTEE, that real property in the City of San Juan Capistrano, County of Orange,
State of California, as follows:
Parcel DD102499-01-01 described In the attached Exhlbit'A', and shown In the attached Exhibit'B',
which by these references are Included herein and made a part hereof.
EXCEPTING unto the STATE all vehicle scows rights to the adjacent public way over and across that
Line described and shown as Parcel OD102499-01-01 Vehicle Access Denial Line In said attached
Exhibit W and Exhlbit 'S'.
RESERVING unto SAN DIEGO GAS & ELECTRIC COMPANY an easement as stated In the attached
Exhibit'C', which by this reference is Included herein and made a part hereof. upon, over, under, and
across that land described and shown as Parcel 102499-2 In sold attached Exhibit'A' and Exhibft'S'.
RESERVING unto COX COMMUNICATIONS CALIFORNIA, LLC., A DELAWARE LIMITED LIABILITY
COMPANY an easement for utility purposes upon, over, under, and across that land described and
shown as Parcel 102499.3 In said attached Exhibit 'A' and E)ftbit 'B'.
There shall be no abuttses rights, Including rights of access, appurtenant to the above described
real property in and to the adjacent STATE freeway.
Subject to special assessments if any, restrictions, reservations, and easements of record.
MAIL TAX
STATEMENTS TO: 13402 Eton Place
Santa Ana, CA 92705
61147.1005M327 r o"7 r. r
Y�l
R714 - INST. NO. 2014000364295, REC.
9 -SEP -2014, OFFICIAL RECORDS OF ORANGE CO., CA
R724 - INST. NO. 2014000336803, REC.
20 -AUG -2014, OFFICIAL RECORDS OF ORANGE CO., CA
BEARINO
NOTE, DISTANCES ARE USFT GRID. DIVIDE GRID BY 0.99995716 TO OBTAIN USFT GROUND DISTANCES.
(v
CURVE TABLE:
S21. 51'02'W
Access DENIAL
UTILITT EASE. RESERVATION
DELTA RADIUS
LENOTN
102499-3
C261 11.06.51' 63.89'
12.40'
AREA 10 SO.FT
TRU£ PDB. CZ62 sr OS' Jl - 26. r S
28.3Z
_TRUE PA.B`
', 102499'3 C263 42.10.09' 19.18'
14. r2'
4
UTILIT7 EASE. RESERVATION', �i� : L99tt'5 C264 21.55.08' 70.32'
26.90'
10249
Ll
C271 14.45.09' 70.32'
16.11'
AREA 14 SO.fT etb _
_ _ C272 Or 58' 10' 70. jr
3.64'
1 i GZ1' {1i
e Gs ,/% A /,A
p -
!f VEHICLEu
ACCESS RIONTS i
/ RETAINED B7 STATE
,p ,Aq, lbs
01koi to a,Z4 ��
•.P_fC.
N
XrX
10oor %
A
PAa
DO/o2i49•Dioi �' /
w '+
LINE TABLE+
y
BEARINO
01ST.
(v
L991
S21. 51'02'W
47. 30'
J
L992
N77.49'18'W
10.89•
L993
&74.59' 55'W
6.59•
L"4
971.55.50'W
7.30'
L995
X27.08' 36'E
11.34'
y
L996
&30•/3.11'£
4.42'
L997
X60.11' 56'W
LINE •L X PER
PER RSA246132.43
L998
&32*01' J9'E
35.11'
L999
X53.56.46'E
37.11'
LI000
SOO.28'/2'W
84.22'
> EErSTIXG STATE R/W
LIOI1
S43.24.18'£
3. 79'
PER RS.B.246/32.43
LI 012
X47.15.04'E
3.60'
ALL ABUTTER'S RICNTS.
L1013
X42.45' 29'W
J. 73'
INCLUDING ACCESS RIGHTS.
L102I
X53.56.46 -E
9.37'
RETAINED BT STATE
L1022
SJS'12' JS'E
1.83'
L0023
X54•55'08'E
5.11'
L1024
X33•07'43•W
1.92'
`CouRSE Ylr OF
`I-E'lI-lST,Iwjl
WINE DESCRIPTION r
eA�pE Obr�B
PER
R7/4
G a�`3obI1.B
T p.M.
PER A714
61147.10050132718497.1
15
L1025 S53.56.46 -W 5.27'
EXHIBIT 'B' SKETCH
TO ACCOMPANY LEGAL DESCRIPTION
PAGE 2 OF 2
PATGM: NAAUXIOL91MI.JSOXANGECVVN"SLWVSIORAA111STJKNT
CO"01NA TX SYNWM: CVW SONE 6. COONO#NAT94 EEAXINGE. A#STANC
(1)41AINSP/ACT0R: &VfV TI4 (GR0lf"-GRJbNWNEINEOIAC70RI
NOT TO SCA#!
EXHIBIT B
DEPICTION OF IMPROVEMENTS
Improvements — in yellow below - are conceptual and will not conflict with provisions in the lease that prohibit tenant from
making improvements that block the view of Del Taco. Working drawings to be approved by Landlord and Del Two.
16
61147.10050,32718497.1
EXHIBIT C
PRELIMINARY COST ESTIMATES FOR
THEIMPROVEMENTS
ATELY-OWNED NORTHEAST CORNER
TOTAL
in &Demo allowance
$
5,500.00
n eallowance
$
3,500.00
tion Allowance(sf)
$
16,500.00
chinus
$
4,500.00
ines
$
15,000.00
itrus trees
$
14,400.00
hrubs
r
$
2,000.00=lentshmbs
$
8,000.00
isc shrubs$
12,000.00
ulch layer(so
$
3,000.00
prep/ fine rake (sf)
$
2,250.00
a Maintenance
$
900.00
n walls-24"hi h
$
40,000.00
in ency
$
3,000.00
Plans and processing
$
9,000.00
Subtotal
$139,550.00
General wnditions/site protection
$
9,768.50
Contractor fees and insurance
$
13,955.00
Subtotal
$163,273.50
Prevailin Wa e
$
57,145.73
Total
$220,419.23
17
61147, 10050327194W.
EXHIBIT D
MEMORANDUM OF LEASE
When recorded, return to: -
City of San Juan Capistrano
32400 Paseo Adclanto
San Juan Capistrano, CA 92675
Attention: City Manager
Fee Exempt per Cal. Gov. Code,
§§ 6103, 27383
(Space Above for Recorder's Use)
Assessor Parcel Number 668-241-38
MEMORANDUM OF GROUND LEASE
This MEMORANDUM OF GROUND LEASE ("Memorandum"), dated to be effective
as of, 2020, is entered into by THE S. ALAN SCHWARTZ AND JACQUELINE
F. SCHWARTZ FAMILY TRUST dated April 26, 1985 and THE STEVE HUFSTEDLER
REVOCABLE TRUST under DECLARATION OF TRUST dated November 10, 2017
("Landlord") and the CITY OF SAN JUAN CAPISTRANO, a municipal corporation and general
law city ("City" or "Tenant").
1. Grant of Lease: Term. Landlord leases to Tenant, and Tenant leases from Landlord,
those certain premises located in the City of San Juan Capistrano, County of Orange, State of
California, comprised of portions of Assessor Parcel Numbers 668-241-38, and legally described
and depicted in Exhibit 1 attached hereto and incorporated herein ("Premises"), for eighteen (18)
years (the "Initial Term"), subject to the provisions of that certain Ground Lease between the
parties hereto, dated , 2020 ("Lease"). The provisions of the Lease are
incorporated herein by this reference.
2. Purpose. This Memorandum is prepared for the purpose of recordation only, and
it in no way modifies the provisions of the Lease. In the event of any inconsistency between the
provisions of this Memorandum and the Lease, the provisions of the Lease shall prevail.
3. Miscellaneous. The parties have executed this Memorandum of Lease as of the
date first set forth above on. the dates and at the places indicated in their acknowledgments below.
4. Termination. When the Lease expires or is terminated, Tenant and Landlord shall
execute and deliver a termination of this Memorandum in form for recordation.
(SIGNATURES ARE ON THE FOLLOWING PAGE]
17
61147.1(1050\32718497.1
LANDLORD:
THE S. ALAN SCHWARTZ and JACQUELINE F.
SCHWARTZ FAMILY TRUST dated April 26,
1985 and THE STEVE HUFSTEDLER
REVOCABLE TRUST under DECLARATION OF
TRUST dated November 10, 2017
Trustee
By:
Trustee
TENANT:
CITY OF SAN JUAN CAPISTRANO
By:
Benjamin Siegel, City Manager
ATTEST:
Maria Morris, City Clerk
Approved as to Form:
Jeff Ballinger, City Attorney
18
61147. 10050\32719497.1
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , 2020 before me, , Notary Public,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
19
61147.10050\32718497.1
(seal)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity
of that document.
STATE OF CALIFORNIA
COUNTY OF ORANGE
On , 2020 before me, , Notary Public,
personally appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies),. and that by his/her/their signatures) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
20
61147.10050\32718497.1
(seal)
RECORDING REQUESTED BY
DEPARTMENT OF TRANSPORTATION
WHEN RECORDED MAIL TO
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
1760E 4TMSTREET. SUITE 100
SANTA ANA, CALIFORNIA WM
ATTN: EVANGELINA WASHINGTON
RAW TITLES 6 ESCROW
7Na4'400
Cad06103i27>db
E12DRO APP: WA
DIRECTOR'S DEED
GRANT
-00022 Ai;ll, I C2UP,
Recorded In Official Records, Orange County
H 1a�R 0 1 1a0�=36.00
2018000241498 8:48 am 07102118
57 410 010 1125
6.60 6.60 0.00 0.00 30.00 0.00 0.000.000.00 0.00
l3.,w
The undeestyud aceta dsdsrsts)
Doeranurlsrytrsaalatas b
_ ComOresd on Re V VA psPary a urs , or
Cmpued m ea vahua raa was of Oau a eneunbimma
mmdrba at am or aala.
UnVC PM ted Area X Cay d Sen Juan Cep&m
ouutd
coasly
Route
post?"
Ntunbor
DD102490-01-01
12
ORA
5
9.6
102499.2
1024893
The State of California, acting by and through its Director of Transportation, hereinafter called STATE,
hereby Wants to
The S. Alan Schwartz and Jaequa[ine F. Schwartz Family Trust dated April 26. 1985 and The Sfevo
Hufatedler Revocable Trust under Dedara0on of Trust dated November 10, 2017,
hereinafter called GRANTEE, that reel property M the City at San Juan Capistrano, County of Orange,
State of California, as tallows:
Parcel 0010249941-01 described In the attached Exh[bit'A', end shown In the attached Exhlbh 'B'.
which by these references aro Included heroin and made a part hereot.
EXCEPTING unto the STATE all vohlde access d" to the 60=M public way over and =ran that
Line desafbed and shown as Parcel OD1024041-01 Vehicle Access Dental Line in said attached
Extftk A' and Exhibit B'.
RESERVING unto SAN DIEGO OAS b ELECTRIC COMPANY an easement as stated In the attached
Eldhlbk IV, whin by this roterence is Included heroin and mode a part hereof; uponk over. udder, and
across that land described and shown as Parcel 102499.2 In said attached Exhibtl'A' and Exhlbtt V.
RESERVING unto COX COMMUNICATIONS CALIFORNIA, LLC., A DELAWARE LIMITED LIABILITY
COMPANY an easement for udlfty purposes upon, over. under. and across that land described and
shown as Ps" 1024993 In said attached E10hibft'A' and ExNblt'B'.
Then *hail be no abutter's rights, Including rights of across, appurtenant to the above described
real property In and to the adjacent STATE frsaway.
Sub)od to spedai assesamerns if any. restrictions. reservations, and easements of record.
MAIL TAX
STATEMENTS TO: 13402 Eton Place
Sante Ana, CA 02705
21
61147.10050\32718497.1
J" t
1Z
1
Jl
R714 - INST. N0. 2014000364295. AEC.
9 -SEP -2014, OFFICIAL RECORDS OF ORANGE CO.. CA
LINE TABLE►
8724 - INST. NO. 2014000336803, REC.
20 -AUG -2014. OFFICIAL RECORDS OF ORANGE CO., CA
WARIAG D1 Sr.
NOTE* DISTANCES ARE USFT GRID. DIVIDE
GRID BY 0.99995716 TO OBTAIN USFT GROUND DISTANCES.
L291 521•Sf•Orr 4r. Jo•
CURVE TABLET
Ayy
LG,t-YLN,CIE y
ACCSiS D2N►AL
, , Ur1L1rV LASE. RESERVATION
DELTA RAVI us
L[RGTN
1
102499.3
0291 11.06.52• 63. fir
Is, 40•
AREA +O SO.r7
tRyf fp9i.. Ct62 6r as, 51 • 28. r J
2R. sr
MC ppm.
"'
S.. m40!•! 0265 4r 1 +' 09• 19.161
14.1 r
RESEAVA7ION '. 4
C264 21 • sa• 02• ro. Jr
19�1$f5.
26.00'
urlUrr [ASE.
^
0271 14.45.09• 70.32'
16.111
102499.2
AREA 14 sorr to
_ C272 orse•+0• fo. jr
A54•
%A
�t't% / 6=�• 1.1 %P .
w
LINE TABLE►
Popo 6%1
w E� 1 'a �4'
v
WARIAG D1 Sr.
P'M"0•
OPSV S'
A{�7A
L291 521•Sf•Orr 4r. Jo•
i`iNT
Ayy
LG,t-YLN,CIE y
L 19 NW 49• re•w 10.09•
KI(L�'0(Ri
�J
1
ACCLSS RpMrs :i 'A 4[
L 99 Mr4'30'33.2 6.39'
v
RETAWED Or STAT[r0
L994 NH'33. 30.2 2. Jo'
L996
L99t FEC t
L993 Mt7•o0•!6•E 11.54•
�.
102499.01-01 y
L996 MJCIS•rl•E 4.42,
OiAgq-1
1�ZA
AREA STJT fOfr UM[ 'LR5'PER
9•C �!'
Sa1 L
P 45k 1'CC
�0%4 - PER Rst✓246/52rJ
[996 Nlr O!'LOOP
l3.
1999 ws5.56.461E l2. f1•
T��
P�
LION $00. 26.1 2.2 04. 22'
Av
ESISTWO S7Arf RIM
ODWL499.O,•01� ��' PER RS9.2461J2.9
L1 Of f SI3*24.10'r 1 r9'
LIVJZ 44r•15'04'E J. 60'
4 ALL AWrrCfrS MKS.
UW 5 w4r43.29•2 J. r!'
Nlt
rNCLuD/R0 ACCESS M mrS.
ir021 033*56.46•r 9. Jr'
q
RLIAIMLD Or SIAT[
tro22 1361+rle•r 1.es•
UO2! wsPas, 00•E s.If'
LION w33•0?'4J•r 1. Or
,q•_ C
'Y•
LIMS SS3•36.46•r 3.22•
CWRs[ 'r+r cr
EXHIBIT W SKETCH
'LIME DESCRIPTION r
TO ACCOMPANY LEGAL DESCRIPTION
♦N"-3o�-
PER Rr+4
311.9
PAGE 2 OF 2
0.
�e�. 04t►'1h
M.ONt/OG2/IILfIQMMCw iOMMrsc'R.YrWAN[ihITA7
rfAu/I[lr, R7l2fOMfa
P'
�rllfrfMO P1'a ;ObL'hyLIRrMI
CeRRwfRATONSWE fMC{OfR)ARCq
&MIUMEAMM Ag""104 (ORO14M•ORfR/OOAlR/NlO FACTOR)
RIM Diir q .�•a•
IMI TO MALS
22
61147.10050 32718497.1