19-1203_SAN JUAN CAPISTRANO, CITY OF_Assignment and Assumption AgreementRECORDING REQUESTED BY:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
AND WHEN RECORDED, MAIL TO:
City of San Juan Capistrano
Attn: Maria Morris, City Clerk
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Exempt from Recording Fees:
Gov Code 27383
City of San Juan Capistrano
Recorded in Official Records, Orange County
Hugh Nguyen, Clerk -Recorder
1II 111111111 II II II NO FEE
*$ R 0 0 1 2 1 3 2 2 7 0$*
2020000570384 9:38 am 10114120
90 NCP1 A30 A38 99
0.00 0.00 0.00 0.00 294.00 0.00 0.000.000.00 0.00
This Space for Recorder's Use Only
Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement'), dated and
effective as of �bu',� , 2019, (the "Assignment Date"), is entered into by and among the
Successor Agency of the City of San Juan Capistrano Community Redevelopment Agency, a
public body, corporate, and politic ("Assignor"), as successor -in -interest to the San Juan
Capistrano Community Redevelopment Agency ("RDA'), and the City of San Juan Capistrano, a
municipal corporation ("City" or "Assignee"). Assignor and Assignee may each individually be
referred to as a "Party," and collectively as the "Parties," to this Agreement.
RECITALS
1. Assignor, as successor -in -interest to the RDA, and the Alfa Plaza LLC
("Owner"), as successor -in -interest to Franciscan Plaza Investment Group ("FPIG"), are each
parties to the following agreements related to the parking structure at Verdugo Street/Alfa Plaza
("Structure"):
(a) that certain Owner Participation Agreement by and among the RDA
and FPIG, recorded in the official records of Orange County, California ("Official Records") on
December 22, 1987, as Instrument No. 87-704662, a copy of which is attached hereto as Exhibit
"A" ("Original OPA Agreement"), as subsequently amended by that certain First Amendment to
the Original Agreement, dated October 17, 1989, a copy of which is attached hereto as Exhibit "B"
("First OPA Amendment"), and that certain Second Amendment to the Original Agreement,
dated May 7, 2002, a copy of which is attached hereto as Exhibit "C" ("Second OPA
Amendment," and collectively with the Original OPA Agreement and the First OPA Amendment,
"OPA");
(b) that certain Joint Parking and Maintenance Agreement and
Declaration of Covenants Running with the Land by and between the RDA and FPIG, recorded in
the Official Records on December 15, 1989, as Instrument No. 89-681025, a copy of which is
attached hereto as Exhibit "D" ("Original Maintenance Agreement"), as amended by that certain
First Amendment to Joint Parking and Maintenance Agreement and Declaration of Covenants
Running with the Land, dated May 7, 2002, a copy of which is attached hereto as Exhibit "E"
("First Amendment to Maintenance Agreement," and collectively with the Original
Maintenance Agreement, "Maintenance Agreement'); and
(c) that certain Lease Agreement by and among the RDA and FPIG,
recorded in the official records of Orange County, California on August 14, 1990, as Instrument
No. 90-429893, a copy of which is attached hereto as Exhibit "F" ("Lease Agreement," and
collectively with the OPA and the Maintenance Agreement, the "Parking Structure
Agreements").
2. Assignor desires to assign to Assignee all of Assignor's rights and interests
in and to the Parking Structure Agreements and to delegate to Assignee all of Assignor's duties
and obligations under the Parking Structure Agreements. Assignee desires to accept the
assignment of such rights and interests and assume such obligations thereunder.
ATTACHMENT 1 - Page 1 of 3
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
terms and conditions contained herein, the Parties hereto hereby agree as follows:
1. Incorporation of Recitals and Exhibits. The "Exhibits" and "Recitals" of
this Agreement constitute a material part of this Agreement and are incorporated by reference as
though fully set forth herein.
2. Assignment and Acceptance of Rights and Interests in the Parking Structure
Agreements. Assignor hereby assigns and transfers to Assignee all of Assignor's rights and
interests in and to the Parking Structure Agreements, and Assignee hereby accepts from Assignor
the assignment of any and all rights and interests of Assignor under the Parking Structure
Agreements.
3. Delegation and Assumption of Obligations Under the Parking Structure
Agreements. Assignor hereby delegates to Assignee all Assignor's obligations, covenants, and
promises under the Parking Structure Agreements, to the maximum extent permissible by law, and
Assignee hereby accepts the foregoing delegation of such obligations, covenants, and promises,
and agrees to fully perform such obligations and fulfill such covenants and promises, all to the
extent accruing or arising on or after the date hereof.
4. General Provisions.
(a) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of California.
(b) Entire Agreement: Conflict. This Agreement, and the exhibits and
documents reference herein, constitute the entire agreement between the Parties with respect to the
assignment and assumption of the Parking Structure Agreements and supersedes all prior
agreements and understandings between the Parties with respect thereto. In the event of a conflict
between the terms of this Agreement and the terms of the Parking Structure Agreements, the terms
of this Agreement shall control.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, and all of which together shall constitute
one in the same agreement.
(d) Status of Parking Structure Agreements. All terms, conditions and
covenants set forth in the Parking Structure Agreements shall remain in full force and effect,
subject only to the terms and amendments set forth in this Agreement.
(e) Indemnification and Hold Harmless. Assignee agrees to defend,
indemnify, protect and hold Assignor harmless from any and all claims, actions, judgments, losses,
liabilities, damages, and costs (including, without limitation, reasonable attorney's fees) arising
out of or in any way related to Assignee's performance after assignment of the Parking Structure
Agreements.
ATTACHMENT 1 - Page 2 of 3
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year
first above written.
0
APPROVED AS TO FORM:
"ASSIGNOR"
SUCCESSOR AGENCY OF THE SAN JUAN
CAPISTRANO REDEVELOPMENT AGENCY,
a public body, corporate, and politic
By:
Sergio Farias
Chairperson
Jeff Ballin r, S ccesso Agency General Counsel
APPROVED AS TO FORM:
� I4 /22
Jeff B in r, City Attorney
61147.00150\32465829.2
"ASSIGNEE"
CITY OF THE SAN JUAN CAPISTRANO,
a municipal corporation
By:
Troy A. Bourne
Mayor
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
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 ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 118 1)
On March 19, 2020, before me, Maria Morris, City Clerk personally appeared
Sereio Faria, Chairperson, who proved to me on the basis of satisfactory evidence to the be
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/there
signature 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.
(SEAL)
Capacity Claimed by Signers
Chairperson
Title
WITNESS
Maria
OPTIONAL
Signer is Representing
Successor Agency of the San Juan Capistrano
Redevelopment Agency
official -seal.
Description of Attached Document
Title or Type of Document
Assignment and Assumption Agreement
Parking Structures
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
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 ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 118 1)
On March 19, 2020, before me, Maria Morris, City Clerk personally appeared
Tory A. Bourne, Mavor, who proved to me on the basis of satisfactory evidence to the be 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/there signature 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
naragranh is true and correct.
Capacity Claimed by Signers
Mayor
Title
Signer is Representing
City of San Juan Capistrano
OPTIONAL
Description of Attached Document
Title or Type of Document
Assignment and Assumption Agreement
Parking Structures
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
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 ) ss.
City of San Juan Capistrano )
(Gov't Code 40814 & Civil Code 118 1)
On October 6. 2020, before me, Maria Morris, City Clerk, personally appeared
Jeffrey Ballineer, City Attorney and Successor Aeency General Counsel, who proved to me on
the basis of satisfactory evidence to the be 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/there signature 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.
(SEAL)
Capacity Claimed by Signers
OPTIONAL
City Attorney and Successor Agency
General Counsel
Title
Signer is Representing
City of San Juan Capistrano
Successor Agency to the San Juan Capistrano
Redevelopment Agency
Description of Attached Document
Title or Type of Document
Assignment and Assumption Agreement
Parking Structures
ReLirding requested by
city of San Juan Capistrano
1 When recorded mail to:
../Agency Secretary '
San Juan Capistrano Community
Redevelopment Agency
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
EXE $PT
Recording f • r pt due to Government Code 610
DoocummJentai, rt-. -:.!r Tax -�Noo Consideration
Mary Ann ovef, City Clerk
City of Saii Juan Capistrano
8T-704662
OWNER PARTICIPATION AGREEMENT
by and among the
RECORDED IN OFFICIAL RECORDS
OF ORANGE COUNTY, CALIFORNIA
-216 PM DEC 2 287
SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY,
AGENCY,
and
FRANCISCAN PLAZA INVESTMENT GROUP
PARTICIPANT,
EXHIBIT A - Page 1 of 38
BT -704662
(i)
EXHIBIT A - Page 2 of 38
TABLE OF CONTENTS
I.
[§100]
SUBJECT OF AGREEMENT,
A.
1§1011
Purpose of Agreement
B.
[§102]
The Redevelopment Plan
C.
(6103]
The Site
D.
[§1041
The Property
E.
[§1051
Parties to the Agreement
1. [§106]
The Agency
2. [§107] The Participant
3. (5108] Representations by Participant
4. [§109] Prohibition Against Change in
Ownership, Management and Control of
Participant
5. [§110] Relationship of Agency and Participant
II.
(§200]
ASSEMBLY OF THE SITE
A.
(§201]
Participant Assembly Obligations
B.
[5202]
Indemnity
III.
[§300]
DISPOSITION OF THE SITE
A.
(§301]
Lease
B.
(§302]
Conditions Precedent
C.
[5303]
Escrow
D.
[§304]
Conveyance of Leasehold Title
E.
[§305]
Form of Documents
F.
["§3061
Condition of Leasehold Title
G.
[§307]
Recordation of Documents
(i)
EXHIBIT A - Page 2 of 38
87-704662
H.
(§308]
Title Insurance
I.
[5309]
Condition of the Site
J.
[§310]
Preliminary Work and Grading
IV.
[§400]
DEVELOPMENT OF THE SITE
A.
(§401]
Scope of Development
B.
[§402]
Site Plan
r
C.
[§403]
Construction Drawings and Related Documents
D.
[§404]
City Approval of Plans, Drawings, and
Related Documents
E.
(§405]
Cost of Construction
F.
[§406]
Construction Schedule
G.
(6407]
Bodily Injury 'and Property Damage Insurance
H.
(§408]
City and Other Governmental Agency Permits
I.
(§409]
Rights of Access
J:
[§410]
Local, State and Federal Laws
K.
[§411]
Antidiscrimination During Construction
L.
[§413]
Taxes, Assessments, Encumbrances and Liens
M.
[§414]
Prohibition Against Transfer of the Site,
the Buildings or Structures Thereon and
Assignment of Agreement
N.
(§415]
Mortgage, Deed of Trust; Sale and Lease -Back
Financing; Rights of Holders
1. [9416] No Encumbrances Except Mortgages, Deeds
of Trust, or Sale and Lease -Back for
Development
EXHIBIT A - Page 3 of 38
87-704662
EXHIBIT A -Page 4 of 38
2.
[§417] Holder Not Obligated to Construct
Improvements
3.
(§418] Notice of Default to Mortgagee or Deed
of Trust Holders; Right to Cure
4. [§419] Failure of Holder to Complete
Improvements
5. [§420]
Right of the Agency to Cure Mortgage or
Deed of Trust Default
O.
[§421]
Right of the Agency to Satisfy Other Liens
on the Site After Title Passes
P
(§422]
Certificate of Completion
V.
(§500]
USE OF THE SITE
A.
[5501]
Uses
B.
[§502]
Maintenance and Operation of Facility
C.
[§503]
Rights of Access
D.
(§504]
Effect of Violation of the Terms and
Provisions of this Agreement After
Completion of Construction
VI
(§600]
GENERAL PROVISIONS
A
[§601]
Notices, Demands and Communications Between
the Parties
B.
[6602]
Conflicts of Interest
C
[§603]
Enforced Delay; Extension of Times of
Performance
Li2
[§604]
Nonliability of Officials and Employees of
'
the Agency
VII.
[§700]
DEFAULTS AND REMEDIES
A.
[§701]
Defaults -- General
B.
[§702]
Legal Actions
1. (9703]
Institution of Legal Actions
EXHIBIT A -Page 4 of 38
VIII
87-704662
2. [6704] Applicable Law
3. •(§705) Acceptance of Service of Process
C. (5706] Rights and Remedies Are Cumulative
D. [§707] Inaction Not a Waiver of Default
E. [§708] Remedies and Rights of Termination
1. [§709] Damages
2. [§710] Specific Performance
3. [§711] Termination by the Participant
4. [§712] Termination by the Agency
[§800] SPECIAL PROVISIONS
A., [§801] Real Estate Commissions
B. [§802] 5ggcessors in Interest
C. [§803] Amendments to this Agreement
[§900] ENTIRE AGREEMENT, WAIVERS
(§1000] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
(iv)
EXHIBIT A -Page 5 of 38
87-704662
(v)
EXHIBIT A - Page 6 of 38
ATTACHMENTS
Attachment
No.
1
Site Map
Attachment
No.
2
Legal Description
Attachment
No.
3
Schedule of Performance
Attachment
No.
4
Lease
Attachment
No.
5
Deed of Trust
Attachment
No.
6
Scope of Development
Attachment
No.
7
Certificate of Completion
Attachment
No.
8
Guaranty
Attachment
No.
9
Non -Disturbance and Attornment Agreement
(v)
EXHIBIT A - Page 6 of 38
ST -70466Z
OWNER PARTICIPATION/AGREEMENT
THIS AGREEMENT is entered into by and among the SAN
JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY (the "Agency")
and.FRANCISCAN PLAZA INVESTMENT GROUP, a California limited
partnership (the "Participant"). The Agency and the
Participant, hereby agree as follows:
I. [§100)
SUBJECT
OF
AGREEMENT
A. [§1011
Purpose
of
Agreement
The purpose of this Agreement is to effectuate the
Redevelopment Plan (as hereinafter defined) for the Central
Redevelopment Project Area by providing for the disposition and
development of certain property situated within the Project
Area (the "Project Area") of the Project. .That portion of the
Project Area to be developed pursuant to this Agreement (the
"Site") is depicted on the "Site Map", which is attached hereto
as Attachment No. 1 and incorporated herein by reference. This
Agreement is entered into for the purpose of developing the
Site by the construction of a parking facility (`.he "Facility")
and not 'for speculation in land holding. Completing the
development on the Site pursuant to this Agreement and the
acquisition by the Agency of that leasehold interest in certain
real property to be ,conveyed by the Participant to the Agency
is in the vital and best interest of the City of San Juan
Capistrano, California (the "City") and the health, safety,
morals and welfare of its residents, and in accord with the
public purposes and provisions of applicable state and local
laws and requirements under which the Project has been
undertaken.
B. [§102) The Redevelopment Plan
The Redevelopment Plan was approved and adopted by the
City Council of the City of San Juan Capistrano by Ordinance
No. 488 as amended by Ordinance Nos. 509, 547 and 582; said
ordinances and The Redevelopment as so approved (the
"Redevelopment Plan") are incorporated herein by reference.
C. [§103) The Site
The Site is that portion of the Project Area
designated on the Site Map (Attachment No. 1) and described in
the "Legal Description", which is attached hereto as Attachment
No. 2 and is incorporated herein by reference.
EXHIBIT A - Page 7 of 38
l
9S 10 9 abed - N 1191HX3
87-704662
D. (1104] The Property
The Property is that portion of the Project Area so
designated on *the Site Map (Attachment No. 1). The Property is
currently owned by the Participant. The Parking Facility and
specified improvements to be constructed thereon in accordance
with this Agreement, is sometimes hereinafter referred to as
the "Project".
E. (§105] Parties to the Agreement
1. (§106] The Agency
The Agency is a public body, corporate and
politic, exercising governmental functions and powers and
organized and existing under Chapter 2 of the Community
Redevelopment Law of the State of California. The principal
office and mailing address of the Agency (for purposes of this
Agreement) is located at 32400 Paseo Adelanto, San Juan
Capistrano, California 02675.
"Agency", as used in this Agreement, includes the
City of San Juan Capistrano Redevelopment Agency, and any
assignee of or successor to its rights, powers and
responsibilities.
2. (§107] The Participant
The Participant is FRANCISCAN PLAZA INVESTMENT
GROUP, a California limited partnership. The general
partner(s) of•FRANCISCAN PLAZA INVESTMENT GROUP is Paul L.
Farber and Associates, Inc.., a California corporation. The
principal office and mailing address of the Participant for the
purposes of this Agreement is c/o Paul A. Farber & Associates,
26,300 La Alameda, Suite 470, Mission Viejo, California 92691.
The Participant has represented to the Agency
that the Participant has the experience and qualifications
necessary to perform as Participant pursuant to this Agreement.
3. (6108] Representations by Participant
Participant represents and warrants to the Agency
as followst
A. The Participant is duly established and in
good standing under the laws of the State of California and has
duly authorized, executed and delivered this Agreement and any
and al'1 other agreements and documents required to be executed
and delivered by the Participant in order to carry out, give
12-11-87
7241k/2299/30
-2-
BT -704662
effect to, and consummate the transactions contemplated by this
Agreement.
B. The Participant does not have any material
contingent obligations or any material contractual agreements
which could materially adversely affect the ability of the
Participant to carry out its obligations hereunder.
C. There are no material pending or, so far as
is known to the Participant, threatened, legal proceedings to
which the Participant is or may be made a party or to which any
of its property is or may become subject, which has not been
fully disclosed in the material submitted to the Agency which
could materially adversely affect the ability of the
Participant to carry out its obligations hereunder.
D. There is no action or proceeding pending or,
to the Participant's best knowledge, threatened, looking toward
the dissolution or liquidation of the Participant, and there is
no action or proceeding pending or, to the Participant's best
knowledge, threatened by or against the Participant which could
affect the validity and enforceability of the terms of this
Agreement, or materially and adversely affect the ability of
the Participant to carry out its obligations hereunder.
E. The Participant has performed all of its
obligations to be performed at or prior to this date in
accordance with the Schedule of Performance and is not in
default hereunder.
,Each of the foregoing items A to E, inclusive
shall be deemed to be an ongoing representation and warranty.
The Participant shall advise the Agency in writing if there is
any change pertaining to any matters set forth or referenced in
the foregoing items A to E, inclusive.
4. (5109] Prohibition Against Change in
Ownership, Management and Control of
Participant
The qualifications and, identity of the
Participant are of particular concern to the City and the
Agency. It is because of those qualifications and identity
that the Agency has entered into this Agreement with the
Participant. No voluntary or involuntary successor in interest
of the Participant shall acquire any rights or powers under
this Agreement except as expressly set forth herein.
Prior to issuance of a Certificate of Completion
for all of the Public Improvements, the Participant shall not
assign or transfer all or any part of this Agreement or the
Site or any rights hereunder without the prior written approval
of the Agency. The Agency shall not unreasonably withhold its
12-11-87
7241k/2299x30 -3- EXHIBIT A - Page 9 of 38
B7 70466?
approval of an assignment or an expanded partnership or new
partnership which includes (i) Paul L. Farber ("Farber") or
(ii) an entity in which Farber retains an interest of greater
than 50% of profits and losses or maintains complete
operational and managerial control as a general partner,
provided that: (1) the assignee partnership shall expressly
assume the obligations of the Participant pursuant to this
Agreement in writing reasonably satisfactory to the Agency;
(2) the original Participant shall remain fully responsible for
the performance and liable for the obligations of the
Participant pursuant to this Agreement; and (3) the assignee
(or expanded partnership) is financially capable, as reasonably
determined by the Agency, of performing the duties and
discharging the obligations it is assuming. The Participant
shall promptly notify the' Agency in writing of any and all
changes whatsoever in the identity of the persons in control of
the Participant and the degree thereof. In the event of death
or incapacity of one or more of the partners or principals of
the Participant, the Agency shall not unreasonably withhold its
approval of an assignment satisfying criteria numbered (1) and
(3), respectively, in the preceding sentence.
All of the terms, covenants and conditions of
this Agreement shall be binding upon and shall inure to the
benefit of the Parties and the permitted successors and assigns
of the Parties. Whenever the term "Participant" is used
herein, such term shall include any other permitted successors
and assigns as herein provided.
Section 109 shall be inapplicable following the
issuance by the Agency of a Certificate of Completion for all
of the Public Improvements.
5. (§110] Relationship of Agency and Participant
It is hereby acknowledged that the relationship
between the Agency and the Participant is not that of a
partnership nor joint venture and that the Agency and the
Developer shall not be deemed or construed for any purpose to
be the agent of the other.
II. [6200] ASSEMBLY OF THE SITE
A. [9201] Participant Assembly Obligations
The Participant has acquired fee title to all portions
of real property comprising the Site.
12-11-87
7241k/2299/30 -4- EXHIBITA - Page 10 of 38
BT -704662
B. [,6202 ) Indemnity
J The Participant shall defend, indemnify, and hold
harmless each of the Agency and the City from and against any
claims, demands, suits, judgments or awards arising from or
related in any manner to (i) the activities of the Participant,
(ii) the prior acquisition of the Site by the Participant,
(iii) the disposition of the Site pursuant to this Agreement
(including without limitation the "Lease", which is attached
hereto as Attachment No. 4, and is incorporated herein by
reference, or (iv) relocation or removal of any occupants of
the Site (whether effectdd by the Agency or the Participant).
This indemnity shall not apply to the Agency's breach or
default of any of the terms, conditions or covenants of the
Lease (Attachment No. 4).
III. (9300) DISPOSITION OF THE SITE
A. (5301) Lease
1. The Participant shall lease the Parking Facility
as depicted on the Sate Map (Attachment No. 1) to the Agency
pursuant to the Lease (Attachment No. 4). The transfer of
leasehold estate pursuant to the Lease (Attachment No. 4) shall
constitute the "Lease Transfer". The respective obligations of
the parties, including without limitation the development of
the•Parking Facility and Public Improvement's and the payment of
rent, are set forth in the Lease (Attachment No. 4). The
Participant and the Agency shall execute the Lease (Attachment
No. 4) by the applicable time established therefor in the
Schedule of Performance (Attachment No. 3); provided that the
execution by the Agency of said Lease shall be subject to and
conditioned upon the prior satisfaction by the Participant of
the.,"Conditions Precedent", as set forth in Section 302 of this
Agreement.
2. In addition to the consideration set forth in
this Section 301, the Participant shall pay all of those costs,
charges, fees and expenses as hereafter expressly provided to
be paid by Participant pursuant to this Agreement and shall, at
its cost, provide all of the improvements required by this
Agreement to be provided by the Participant (the "Public
Improvements"). The Public Improvements are described in the
"Public Improvement Specifications" which is attached hereto as
Attachment No. 8 and is incorporated herein by reference.
Participant shall pay 1007 of the cost of the Public
Improvements (Attachment No. 8) with the exception that :here
shall be a limit of Thirty -Five Thousand Dollars ($35,000.o0)
to Participant's expenditure for the railroad platform
improvement and the _landscaping associated with the rac_road
platform improvement.
12-11-87
7241k/2299/.@0 -5-
EXHIBIT A -Page 11 of 38
87-70466?
` The Agreement and the Lease (Attachment No. 4)
provide substantial economic incentives to the Participant,
based upon covenants by the Participant to dedicate the parking
structure to public purposes. Public purposes shall be defined
as "open and available to the public on an equal basis." This
covenant of dedication to public purposes is permanent, shall
run with the land and shall therefor continue beyond the term
of the Lease (Attachment No. 4). Additional economic
incentives are provided in that Parking Revenue generated from
commuter parking or other paid parking, is to be divided
between the Agency and the Participant on a 50/50 basis.
a'
B. [5302) Conditions Precedent
As conditions precedent to the obligations to the
Agency to commence the term of the Lease (Attachment No. 4),
the Participant shall complete all of the following:
1. the Participant executes the Lease (Attachment
No. 4);
2. the Participant provides proof satisfactory to
the Agency that the Participant: (i)- holds fee
title to all of the Site; and (ii) has verified
that the zoning of ,the Site is such as to permit
development of the Public Improvements and the
use, operation, and maintenance of such
l improvements;
3. the Participant executes (and obtains execution
of all parties having any fee ownership interest
in the Site) the Deed of Trust (Attachment No. 5);
4. the Participant provides proof satisfactory to
the Agency that all real property taxes levied
with respect to the Site have been paid, and that
no such taxes are delinquent;
S. the condition of the leasehold title of the
Agency upon recordation of the Lease (Attachment
No. 4) would conform to Section 306 of, this
Agreement.
The foregoing conditions numbered 1• to 5, inclusive,
shall collectively constitute the "Conditions Precedent".
C. [§303] Escrow
The Agency agrees to open an escrow (the "Escrow")
with First American Title Insurance Company (or with another
mutually agreeable escrow company) (the "Escrow Agent") by the
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time established therefor in the Schedule of Performance
(Attachment No. 3). The Escrow Agent shall accomplish the
recordation of the Lease (Attachment No. 4) and the Deed of
Trust (Attachment No. 5.), all as more particularly set forth
herein. This Agreement constitutes the joint basic escrow
instructions of the Agency and the Participant for creation of
a leasehold interest for the Agency pursuant to the Lease
(Attachment No. 4), and an interest pursuant to the Deed of
Trust (Attachment No. 5) and a duplicate original of this
Agreement shall be delivered to the Escrow Agent upon the
opening of the Escrow. The Agency and the Participant shall
provide such additional escrow instructions as shall be
necessary for and consistent with this Agreement. The Escrow
Agent is hereby empowered to act under this Agreement, and the
Escrow Agent, upon indicating within five (5) days after the
opening of the Escrow its acceptance of the provisions of this
Section 303, in writing, delivered to the Agency and the
Participant, shall carry out its duties as Escrow Agent
hereunder.
Upon delivery.of the Lease (Attachment No. 4), and the
Deed of Trust (Attachment No. 5) to the Escrow Agent by the
Agency, the Escrow Agent shall record such Lease and Deed of
Trust, when leasehold title can be vested in the Agency and the
interest of the Agency pursuant to the Deed of Trust
(Attachment No. 5) shall similarly be vested in the Agency, all
in accordance with the terms and provisions of this Agreement.
Any insurance policies covering the Property or any parcel are
not to be transferred.
The Participant shall pay in escrow to the Escrow
Agent the following fees, charges and costs promptly after the
Escrow Agent has notified the Participant of the amount of such
fees, charges and costs, but not earlier than ten (10) days
prior to the scheduled date for closing the Escrow:
1. One-half (1/2) of the escrow fee;
2. Any State, County or City Documentary Stamps;
3. Any transfer tax;
4. Costs necessary to place title to the Property in
the condition required by this Agreement prior to
recordation of the Lease (Attachment No. 4) and
the Deed of Trust (Attachment No. 5);.
5. Recording fees;
'6. Nota. -y fees; and
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7. The premium for the title insurance policy to be
paid by the Participant as set forth in Section
•308 of this Agreement.
The Agency shall pay to the Escrow Agent prior to
closing one-half (1/2) of the escrow fee.
By the time established therefor in the Schedule of
Performance .(Attachment No. 3)., the Participant shall execute
and deposit with the Escrow Agent the Lease (Attachment No. 4)
and the Deed of Trust (Attachment No. 5). Subject to Section
302 of this Agreement, the Agency shall execute such Lease and
such Deed of Trust prior to the close of escrow.
The Escrow Agent is authorized to:
1. Pay, and charge the Participant and Agency for
any fees, charges and costs payable under this
Section 303 of this Agreement. Before such
payments or charges are made, the Escrow Agent
shall notify the Agency and the Participant of
the fees, charges and costs necessary to clear
title and close the Escrow.
2.
Disburse funds and deliver the deed and other
documents to the parties entitled thereto when
1
the conditions of this Escrow have been fulfilled
by the Agency and the Participant.
Record any instruments delivered through this
Escrow, if necessary or proper, to vest leasehold
title in the Agency in accordance with the terms
and provisions of this Agreement.
All
funds received in this Escrow shall be deposited
by the Escrow Agent, with other escrow funds of the Escrow
Agent in an
interest earning general escrow account or accounts
with any state
or national bank doing business in the State of
California.
Such funds maybe transferred to any other general
escrow account or accounts. All disbursements shall be made by
check of the
Escrow Agent. All adjustments are to be made on
the basis of
a thirty (30) day month.
If this Escrow is not in condition to close on or
before the time established therefor in Section 304 of this
Agreement, either party who then shall have fully performed the
acts to be performed before the conveyance of leasehold title
may, in writing, demand from the Escrow Agent the return of its
money, papers or documents deposited with the Escrow Agent. No,
demand for return shall be recognized until ten (10) days after
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the Escrow Agent shall have mailed copies of such demand to the
other party or parties at the address of its or their principal
place or places of business. Objections, if any, shall be
raised by written notice to the Escrow Agent and to the other
party within the ten (30) day period, in which event the Escrow
Agent is authorized to hold all money, papers and documents
with respect to the Property until instructed by a mutual
agreement of the parties or by a court of competent
jurisdiction. If no such demands are made, the Escrow shall be
closed as soon as possible.
The Escrow Agent shall not be obligated to return any
such money, papers or documents except upon the written
instructions of both the Agency and the Participant or until
the party entitled thereto has been determined by a final
decision of a court of competent jurisdiction.
Any amendment to these Escrow instructions shall be in
writing and signed by both the Agency and the Participant. At
the time of any amendment, the Escrow Agent shall agree to
carry out its duties as Escrow Agent under such amendment.
All communications from the Escrow Agent to the Agency
or the Participant shall be'directed to the addresses specified
in Sections 1'05 and 106 of this Agreement and in the manner
established in Section 601 of this Agreement for notices,
demands and communications between the Agency and the
Participant.
The liability of the Escrow Agent under this Agreement
is limited to performance of the obligations imposed upon .it
under Sections 303 to 308, both inclusive, of this Agreement.
Neither the Agency'nor the Participant shall be liable
f9r any real estate commissions or brokerage fees which may
arise,herefrom. The Agency and the Participant each represents
that it has not engaged any broker, agent or finder in
connection with this transaction.
D. (5304) Conveyance of Leasehold Title
Subject to any extensions of time mutually agreed upon
between the Agency and the Participant, the conveyance of
leasehold title to the Agency pursuant to the Lease (Attachment
No. 4) shall be completed on or prior to the date specified
therefor in the Schedule of Performance (Attachment No. 3).
Said Schedule of Performance (Attachment No. 3) is subject to
revision from time to time as mutually agreed upon in writing
between the Participant and the Agency. The Agency and the
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Participant agree to perform all acts necessary to conveyance
/ of leasehold title in sufficient time for leasehold title to be
conveyed in accordance with the foregoing provisions.
Possession shall be delivered to the Agency
concurrently with the conveyance of leasehold title.
E. (§305) Form of Documents
The Participant shall convey to the Agency leasehold
title to the Property in the condition provided in Section 306
of this Agreement by the Lease (Attachment No. 4). The
Participant shall additionally cause the concurrent recordation
of the Deed of Trust (Attachment No. 5).
F. (§306) Condition of Leasehold Title
The Participant shall convey to the Agency leasehold
title to the Parking Facility free and clear of all recorded or
unrecorded liens, encumbrances, covenants, assessments,
easements, leases and taxes, except for liens, encumbrances,
covenants, assessments, and easements of record which are
hereafter approved in writing by the Agency (which shall act
reasonably in evaluating any such encumbrances) and liens for
construction or take-out financing for the Public Improvements;
the interest of the Agency to be created upon recordation of
the Deed of Trust (Attachment No. 5) shall be subject only to
the same encumbrances. The Participant shall have the right tc
pledge any rent payable by the Agency pursuant to the Lease
(Attachment No. 4). The Agency authorizes its Executive
Director to execute such documents as may be necessary to
subordinate its total interest in the Parking Facility
including the Lease (Attachment No. 4) to deeds of trust in
favor of lenders providing construction or take-out financing
iii'Lonnection with the Project, where the lender seeking
subordination has executed a Non -Disturbance and Attornment
Agreement substantially in the form of Attachment No. 9 which
is attached hereto and incorporated herein by this reference.
G. 1§307) Recordation of Documents
The Escrow Agent shall file first the Lease
(Attachment No. 4) and the Deed of Trust (Attachment No. 5) for
recordation among the land records in the Office of the County
Recorder for Orange County, after delivery to the Agency of vwo
title insurance policies, insuring leasehold title pursuant to
the Lease (Attachment No. 4) and the interest of the Agency by
virtue of the Deed of Trust (Attachment No. -5) in conformity
with Section 308 of this Agreement. The Escrow Agent shall
also record any applicable subordination and non -disturbance
and attornment agreements.
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H. [§308) Title Insurance
i
Concurrently with recordation of the Lease (Attachment
No. 4) and the, Deed of Trust (Attachmesit No. 5), First American
Title Insurance Company (the "Title Company"), shall provide
and deliver to the Agency .a title insurance .policy -issued by
the Title Company insuring that leasehold title to the Parking
Facility (pursuant to the Lease (Attachment No. 4)) is vested
isi the Agency and that the interest to be held by the agency
pursuant to the Deed of Trust (Attachment No. 5) all is reposed
in the Agency in the cor;dition required by Section 306 of this
Agreement. The Title Company shall provide the Agency with a
copy of the title insurance policies for its leasehold interest
pursuant to the Lease (Attachment No. 4) (based upon the amount
of Two Million and Five hundred Thousand Dollars •($2,500,000),
and for its interest pursuant to the Deed of Trust (Attachment
No. 5), which shall be an ALTA lender's policy for the amount
of Two Million and Five Hundred Thousand"Dollars ($2,500,000).
The Participant shall bear all costs for the foregoing title
insurance policies.
In the event that the Title Company will insure the
interest of the Agency as provided herein to the same extent as
set forth in this Section 308 as !an update to policy issued to
the Participant, such -a policy may be utilized; provided,
however., that the Agency shall be a named insured pursuant to
such.insurance policy.
In the event the Participant seeks any title insurance
policy for its benefit, all costs for such title insurance
shall be borne solely by the Participant.
I. [§309) Condition of the Site
• The Participant, at Participant's expense, shall
perform any excavation, backfilling, demolition, removal of
structures (including subsurface structures), and grading,
necessary for the Public Improvements. If the soil conditions
of the Site are not in all respects entirely suitable for the
use or uses to which the Site will be put, then it is the sole
responsibility and obligations of Participant to take such
action as may be necessary to place the Site in a condition
entirely suitable for the development of the Site. After the
close of escrow, Participant agrees to indemnify,and defend the
City and/or Agency for any claims which may be asserted against
the City and/or the Agency under the Comprehensive
Environmental Response and Compensation and Liability Act, as
amended, (42 U.S.C. 99601 at. seq.) ("CERCLIO ), and the
Resource Conservation and Recovery Act, (42 U.S.C. §6901 et.
sem.) which claims are based at least in part on the fact that
the City and/or Agency held a leasehold interest in the Parking
Facility.
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J. [§3101 Preliminary Work and Grading:
The Participant assumes full responsibility to obtain
any necessary consents of affected property owners and tenants
at its expense prior to undertaking any work on the Site.
The Participant agrees to undertake such demolition,
soil excavation, importation and compaction work as is
necessary to prepare Site for the Public Improvements.
The Participant shall save and protect the Agency and
the City against any claifis resulting from all preliminary
work, access or use of the Site undertaken pursuant to this
Section 310. Copies of data, -surveys and tests obtained or
made by the Participant on the Site pursuant .to this
Section 310 shall be filed with the Agency within fifteen (15)
days after receipt by the Participant. Any preliminary work by
the Participant shall be undertaken only. after securing any
necessary permits from the appropriate governmental agencies.
IV. (§400) DEVELOPMENT OF THE SITE
A. [6401] Scope of Development
i
The Participant shall commence and complete
construction of the Public Improvements by the respective times
established therefor in the Schedule of Performance (Attachment
No. 3). The Participant additionally assumes all
responsibility to cause the timely commencement and completion
of the "Site Grading", as hereinafter set forth in Section 310
of this Agreement.
The Parking Facility and Public Improvements
shall be developed as provided in the "Attachment No. 6", which
is attached hereto as the Scope of Development and is
incorporated herein.
The development shall include any plans and
specifications submitted to City and/or Agency for approval,
and shall incorporate or show compliance with all applicable
mitigation measures.
B. [§4021 Site Plan
By the respective times set forth therefor in the
Schedule of Performance (Attachment No. 3), the Participant
shall prepare and submit to the Agency for its approval any
modifications to the approved plans for development of the Site
in sufficient detail to enable the Agency to eval,Uate the
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87 704662
proposal for conformity to the requirements of this Agreement.
The Site shall be developed as established in this Agreement
and such documents except as changes may be mutually agreed
upon between the Participant and the Agency. Any such changes
shall be within the limitations of the Scope of the Development
(Attachment No. 6).
C. (6403) Construction Drawings and Related Documents
By the time set forth therefor in the Schedule of
Performance (Attachment No. 3), 'the Participant shall prepare
and submit to the City,, 'construction drawings, landscape plan,
and related documents for development of the Site for written
approval. Approval of the drawings and specifications, as
provided in the Schedule of Performance (Attachment No. 3),
will be granted by the City if they conform to Site Plan
theretofore approved. Any items so submitted and approved in
writing by the City shall not be subject to subsequent
disapproval.
During the preparation of all drawings and plans,
staff of the Agency, City, and the Participant shall hold
regular progress meetings to coordinate the preparation of,.
submission to, and review of drawings, plans and related
documents by the Agency. The staff of Agency, City, and the
Participant shall communicate and consult informally as
frequently as is necessary to insure that the formal submittal
of ariy documents to the Agency or City can receive prompt and
speedy consideration. The Participant shall be obligated to
obtain all City approvals required for the construction of the
Public Improvements.
D. I§4041City Approval of Plans, Drawings, and
Related Documents
The City shall have the right of planning review
of all plans and submissions including any changes therein.
Provided that the submissions by the Participant
are made timely and are complete, the City shall approve or
disapprove the plans, drawings and related documents referred
to in Sections 403 and 404 of this Agreement within the times
established in the Schedule of Performance (Attachment No. 3).
Any disapproval shall state in writing the reasons for
disapproval. The Participant, upon receipt of a disapproval
based upon powers reserved by the City hereunder, shall revise
such portions and resubmit to the City as soon as possible
after receipt of the notice of disapproval as provided '^ the
Schedule of Performance (Attachment No. 3).
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The City shall advise the Participant within ten
(10). days of any submittal, of plans or drawings if the
submittal isnot complete or not inaccordancewith City/Agency
procedures. If the City determines that such a submittal is
not complete or not in accordance with procedures, such tender
shall not be deemed to constitute a submittal for purposes of
satisfying the Schedule of Performance (Attachment No. 3):
If the Participant desire's to make any
substantial changes in the construction plans after their
approval by the City, the Participant shall submit the proposed
change to the City for its approval. The City shall approve or
reject the proposed change and notify the Participant in .
writing within 30 days after submission to the City.
E. (§405] Cost of Construction
All the costs of site preparation and developing
the Public Improvements and developing the Site and
constructing all improvements thereon shall be borne solely by
the Participant.
F. [§406] Construction Schedule
The Participant shall promptly begin and
thereafter diligently prosecute to completion. the construction
ti of the Public Improvements, with all construction commencing
and being completed within the times specified therefor in the
Schedule of Performance (Attachment No. 3).
G. (§407) Bodily Injury "and Property Damage Insurance
The Participant shall defend, assume all
responsibility for and hold the Agency, its officers and
employees, harmless from, all claims or suits for, and damages
to, property and injuries to persons, including accidental
death (including attorneys fees and costs), which may be caused
by any of the Participant's activities under this Agreement,
whether such activities or performance thereof be by the
Participant or anyone directly or indirectly employed or
contracted with by the Participant and whether such damage
shall accrue or be discovered before or after termination of
this Agreement. The Participant shall take out and maintain
throughout the period set forth in this Section 408, a
comprehensive liability policy in the amount of Two Million
Dollars ($2,000,000) combined single limit policy, including
contractual liability, as shall protect the Participant, City
and Agency from claims for such damages.
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The Participant shall furnish a certificate of
insurance countersigned by an authorized agent of the insurance
carrier on a form of the insurance carrier setting forth the
general provisions of the insurance coverage. This
countersigned .certificate shall name the City and the Agency
and their respective offices, agents, and employees as
Additional insureds under the policy. The certificate by the
insurance carrier shall contain a statement of obligation on
the part of the carrier to notify City and the Agency of any
material change, cancellation or termination of the coverage at
least thirty (30) days in advance of the effective date of any
such material change, cancellation or termination, Coverage
provided hereunder by the Participant shall.be primary
insurance and not contributing with any insurance maintained by
the Agency or 'City, and the policy shall contain such an
endorsement. The insurance policy or the certificate of
insurance shall contain a waiver of subrogation for the benefit
of the City and the Agency. The required certificate shall be
furnished by the Participant at the time set forth therefor in
the Schedule of Performance (Attachment No. 3).
The Participant shall also furnish or cause to be
furnished to the Agency evidence satisfactory to the Agency
that any contractor with whom it has contracted for the
performance of work on the Site or otherwise pursuant to this
Agreement carries workers' compensation insurance as required
by law.
The obligations set forth in this Section 407
shall remain in effect only until the date of issuance of a
final Certificate of Completion for the Parking Facility and
all of the Public Improvements as hereafter provided in Section
422 of this Agreement.
H. (§408] City and Other Governmental Agency Permits
Before commencement of construction or
development of any buildings, structures or other works of
improvement upon the Site or within the Project Area, the
Participant shall, at its own expense, secure or cause to be
secured any and all permits which may be required by the City
or any other governmental agency affected by such construction,
development or work. It is understood that the P"articipant's
obligation is to pay all necessary fees and to timely submit to
the City final drawings with final corrections to obtain a
building permit; the Agency will, without obligation to incur
liability or expense therefor, use its best efforts to expedite
issuance of building permits and certificates of occupancy for
construction that meets the requirements of. the City Code.
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I. [§409] Rights of -Access
•For the purpose of assuring compliance with this
Agreement, representatives of the Agency and the City shall
have the right of access to all portions of the Site in which
the Participant shall have an ownership, interest, without
charges or fees, at normal construction hours during the period
of construction for the purposes of this Agreement; including,
but not limited to, the inspection of the work being performed
in: constructing the improvements, so long as they comply with
all safety rules. Such representatives of the Agency or of the
City shall be those who are so identified in writing by the
Executive Director of the Agency.' The Agency shall indemnify,
defend and hold the Participant harmless from and against any
bodily injury or related damages arising out of the activities
of the Agency 'and the City as referred to in this Section 409
Including but not limited to, claims, causes of action,
liability, loss, cost or expense (including reasonable
attorneys' fees) in connection therewith.
The Participant and the Agency agree to cooperate
in placing and. maintaining on the Site one sign indicating the
respective parts of the Participant and the Agency. in the
Project. The cost of the sign shall be borne solely by the
Participant.
1 J; [§410) Local, State and Federal Laws
The Participant shall carry out the construction
of the improvements in conformity with all applicable laws,
including all applicable federal immigration laws and federal
and state labor standards, provided, however, Participant and
its contractors, successors, assigns, transferees, and lessees
are not waiving their rights to contest any such laws, rules or
standards.
K. [§411] Antidiscrimination During Const^.action
The Participant, for itself and its successors
and assigns, agrees that in the construction of the
improvements provided for in this Agreement, the Participant
will not discriminate against any employee or applicant for
employment because of race, color, creed, religion; age, sex,
marital status, handicap, national origin or ances=ry.
L. [§'413) Taxes, Assessments, ..Encumbrances and Liens
The Participant shall pay when due all real estate
taxes and assessments on the Site whether levied before or
after the Lease Transfer. Prior to issuance of a Certificate
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of Completion pursuant to Section 422, the Participant shall
l not place on the Site or any part thereof any mortgage, trust
deed, encumbrance'or lien other than as expressly allowed by
this Agreement, including, without limitation, the Lease
(Attachment No. 4). The Participant shall remove or have
removed any levy or attachment made on any of the Site or any
part thereof, or assure the satisfaction thereof within a
reasonable time but in any event prior to a sale thereunder.
Nothing herein contained shall be deemed to prohibit the
Participant from contesting the validity or amounts of any tax
assessment, encumbrance gr lien, nor to limit the remedies
available to the Participant in respect thereto.
M. (§4141 Prohibition Against Transfer of the Site,
the, Buildings or 'Structures Thereon and
Assignment of Agreement
Prior to the issuance by the appropriate governmental
authority of a Certificate of Completion (pursuant to
Section 422 of this Agreement) as to any building or structure,
the Participant shall not, except as permitted by this
Agreement, without prior approval of the Agency, make any total
or partial sale, transfer, conveyance, assignment or lease of
the whole or any part of. the Site or of the buildings or
structures on the Site. This prohibition shall not be deemed
to prevent construction loans allowable pursuant to Section
416, the granting of temporary or permanent easements or.
permits to facilitate the development of the Site or to
prohibit or restrict the leasing of any part or parts of a
building or structure for occupancy for a term commencing upon
completion.
N. j§415) Mortgage, Deed of Trust, Sale and Lease -Back
Financing; Rights of Holders
1. j§4161 No Encumbrances Except Mortgages, Deeds
of Trust, or Sale and Lease -Back for
Development
Mortgages, deeds of trust and sales and
leases -back are to be permitted before completion of the
construction of the improvements pursuant to this Section 416,
but only for the purpose of securing loans of funds to be used
for financing the construction of improvements on the Site,
permanent financing, and any other purposes necessary and
appropriate in connection with development under this
Agreement. The Participant shall notify the Agency in advance
of any mortgage, deed of trust or sale and lease -back
financing, if the Participant proposes to enter into the same
before completion of, the construction of the improveme.^.:s on
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$7-704662
:> the Site. The words "mortgage" and "trust deed" as used
hereinafter shall include sale and lease -back. The Participant
shall not enter into any such conveyance for financing without
the prior written approval of the Agency, which approval Agency
agrees to give if any such conveyance for financing is given to
a responsible lender.
2. (9417) Holder Not Obligated to Construct
Improvements
The holder of any mortgage or deed of trust
authorized by this Agreement shall not be obligated by the
provisions of this Agreement to construct or complete the
improvements or to guarantee such construction or completion.
Nothing in this Agreement shall be deemed to construe, permit
or authorize any such holder to devote the Site to any uses or
to construct any improvements thereon, other than those uses or
improvements provided for or authorized by this Agreement.
3, (§418) Notice of Default to Mortgagee or Deed
of Trust Holders.; Right to Cure
With respect to any mortgage or deed of trust
granted by Participant as provided herein, whenever the Agency
shall deliver any notice or demand to Participant with respect
to any breach or default by the Participant in completion of
1 construction of the improvements, the Agency shall at the same
time deliver to each holder of record of any mortgage or deed
of trust authorized by this Agreement a copy of such notice or
demand. Each such holder shall (insofar as the rights of the
Agency are concerned) have the right, at its option, within
thirty (30) days after the receipt of the notice, to cure or
remedy or commence to cure or remedy and pursue with due
diligence any such default and to add the cost thereof to the
mortgage debt and the lien of its mortgage. Nothing contained
in this Agreement shall be deemed to permit or authorize such
holder to undertake or continue the const%uction or completion
of the improvements (beyond the extent necessary to conserve or
protect the improvements or construction already made) without
first having expressly assumed the Participant's obligations to
the agency by written agreement satisfactory to the Agency.
The holder, in that event, must agree to complete, in the
manner provided in this Agreement, the improvements to which
the lien or title of such holder 'relates, and submit evidence
satisfactory to the Agency that it has the qualifications and
financial responsibility necessary to perform such
obligations. Any such holder properly completing such
improvement shall be entitled, upon compliance with the
requirements of Section 422 of this Agreement,'to a.Certificate
of Completion (as therein defined).
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,'•N
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4. [§419) Failure of Holder to Complete
Improvements
Subject to the provisions of Section 603 of this
Agreement, in any case where, thirty (30) days after default by
the Participant in completion of construction of improvements
under this Agreement, the holder of any mortgage or deed of
trust creating a lien or encumbrance upon the Site or any part
thereof has not exercised the -option to construct, or,if it has
exercised the option and has not proceeded diligently with
construction, the Agency may purchase the mortgage or deed of
trust by payment to the holder of the amount of the unpaid
mortgage or deed of trust debt, including principal and
interest and all other sums secured by the mortgage or deed of
trust. I£ the ownership of the Participant Parcel or any part
thereof has vested in the holder, the Agency, if it so desires,
shall be entitled to a conveyance from the holder to the Agency
upon payment to the holder of an amount equal to the sum of the
following:
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7241k/2299/30
a. The unpaid mortgage or deed of trust debt at
the time title became vested in the holder
(less all appropriate credits; including
those resulting from collection and
application of rentals and other income
received during foreclosure proceedings);
b. All -expenses with respect to foreclosure;
The net expense, if any,(exclusive of
general overhead), incurred by the holder as
a direct result of the subsequent management
of the Site or part thereof;
d. The costs of any improvements made by such
holder;
e. An amount equivalent to the interest that
would have accrued on the aggregate of such
amounts had all such amounts become part of
the mortgage or deed of trust debt and such
debt had continued in existence to the date
of payment by the Agency; and
f. Any customary prepayment charges imposed by
the lender pursuant to its loan documents
and agreed to by the Participant.
—19 EXHIBIT A - Page 25 of 38
87-704662
5. (§420] Right o£ the Agency to Cure Mortgage or
Deed of Trust Default
In the event of a mortgage or deed of trust
default or breach by the Participant prior to the completion of
the construction of the improvements on the Site or any part
thereof and the holder of any mortgage or deed of trust has not
exercised its option to construct, the Agency may cure the
default. In such event, the Agency shall be entitled to
reimbursement from the Participant of all proper costs and
expenses incurred by the,Agency in curing such default. The
Agency shall also be entitled to a lien upon the Site and the
Site to the extent of such costs and disbursements. Any such
lien shall be subject and subordinate to the construction
financing mortgages or deeds of trust.
O. (9421] Right of the Agency to Satisfy Other Liens
on the Site After Title Passes
After the conveyance of Leasehold interest to Agency
and prior to the completion of construction, and after the
Participant has had written notice and has failed after a
reasonable time, but in any event not less than fifteen (15)
days, to challenge, cure, adequately bond against, or satisfy
any liens or encumbrances on the Site which are not otherwise
permitted under this Agreement, the Agency shall have the right
1 but ng obligation to satisfy any such liens or encumbrances.
P. [§422] Certificate of Completion
Promptly after completion of all construction and
development required by this•Agreement-to be completed by the
Participant upon the Site in conformity with this Agreement,
the Agency shall £prnish the Participant with a Certificate of
Completion upon written request therefor by the Participant.
Such Certificate shall be substantially in the form of
Attachment No. 7 hereto. The Agency shall not unreasonably
withhold any such Certificate of Completion. Such Certificate
of Completion shall be a conclusive determination of
satisfactory completion of the construction required by this
Agreement upon the Site and the Certificate of Completion shall
so state. After recordation of such Certificate -of Completion,
any party then owning or thereafter purchasing, leasing or
otherwise acquiring any interest therein shall not (because of
such ownership, purchase, lease or acquisition), incur any
obligation or liability under this Agreement except as provided
in the Lease (Attachment No. 4) or other documents establishing
covenants on the Site in accordance with the provisions of
Section 401 of this Agreement, which shall be applicable
according to its terms.
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If the Agency refuses or fails to furnish a
Certificate of Completion for the Public Improvements after
written request from the Participant, the Agency shall, within
thirty (30) days of written request therefor, provide the
Participant with a written statement of the reasons the Agency
refused or failed to furnish a Certificate of Completion. The
statement shall also contain Agency's opinion of the actions of
the Participant must take to obtain a Certificate of
Completion. If the reason for such refusal is confined to the
immediate availability of specific items of materials for
landscaping, the Agency gill issue its Certificate of
Completion upon the posting of a bond or an unconditional
letter of credit (in form and substance reasonably acceptable
to the Agency and its legal counsel) by the Participant with
the Agency in an amount representing a fair value of the work
not yet completed. If the Agency shall have failed to provide
such written statement within said thirty (30) day period, the
Participant shall be deemed entitled to the Certificate of
Completion.
Such Certificate of Completion shall not constitute
evidence of compliance with or satisfaction of any obligation
of the Participant to any holder of any mortgage, or any
insurer of a mortgage securing money loaned to finance the
improvements, or any part thereof. Such Certificate of
Completion is not a notice of completion as referred to in the
California Civil Code, Section 3093.
V. (§500) USE OF THE SITE
A. (65011 Uses
The Participant covenants and agrees for itself, its
successors, its assigns, and every successor in interest zo the
Site or any part thereof, that during construction and
thereafter, the Participant, such successors and such
assignees, shall devote the Site to the uses specified in the
Redevelopment Plan, and this Agreement for the periods of time
specified therein. No use other than the operation of a
parking facility principally devoted to a combination of
commuter and commercial parking shall be allowed on the Site
without the prior written approval of the Agency (which
approval the Agency may grant, deny, withhold, or grant subject
to conditions, at its sole and absolute discretion). The
number of commuter and commercial parking spaces shall be based
upon a determination of the parking spaces necessary for the
commercial uses as determined by the City of San Juan
Capistrano Municipal Code (the "Code") with tide remainder of
the spaces allocated to commuter use. This proportion shall be
readjusted if a change in use of the commercial space reaufres
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8T -T04662
a greater or lesser number of parking spaces under the .Code.
However, in no event shall the number of commuter spaces be
less than one hundred (100). The parking must be used for
public purposes and shall be considered to be used for public
purposes as long as it is open and available to the public on
an equal basis. The foregoing covenants shall run with the
land.
The Participant covenants by and for itself and any
successors in interest that there shall be no discrimination
against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, marital status,
age, handicap, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the
Site, nor shall therParticipant itself or any person claiming
under or through it'establish or permit any such practice or
practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the Site. The
foregoing covenants shall run with the land.
The Participant shall refrain from restricting the
rental, sale or lease of the Site on the basis of race, color,
creed, religion, sex, marital status, handicap, national origin
or ancestry of any person. All such deeds, leases or contracts
shall contain. or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
1. In deeds: "The grantee herein covenants by and
for himself or herself, his or her heirs,
executors, administrators and assigns, and all
persons claiming under or through them, that
there shall be no discrimination against or
segregation of, any person or group of persons on
account of race, color, creed, religion, sex,
marital status, age, handicap, national origin or
ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the grantee himself or
herself or any person claiming under or through
him or her, establish or permit any such practice
or practices of discrimination or segregation
with reference to the selection, location,
number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land
herein conveyed. The foregoing covenants shall
run with the land."
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ST -70466Z
2. In leases: "The lessee herein covenants by and
for himself or herself, his or her heirs,
executors, administrators and, assigns, and all
persons claiming under or through him or her, and
this lease is made and accepted upon and subject
to the following conditions:
"There shall be no discrimination against or
segregation of any person or group of persons on
account of race, color, creed, religion, sex,
marital status, handicap, age, ancestry or
national origin in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment
of the premises herein leased nor shall the
lessee himself or herself, or any person claiming
under or through him or her, establish or permit
any such practice or practices of discrimination
or segregation with reference to the selection,
location, number, use or occupancy of tenants,,
lessees, sublessees, subtenants or vendees in the
premises herein leased."
3. In contracts: "There shall be no discrimination
against or segregation of, any person, or group
of persons on account of race, color, creed,
religion, sex, marital status, age, handicap,
ancestry or national origin, in the sale, lease,
sublease, transfer, use, occupancy, tenure or
enjoyment of the premises,'nor shall the
transferee himself or herself or any person
claiming under or through him or her, establish
or permit any such practice or practices of
discrimination or segregation with reference to
the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or
vendees of the premises."
Except for covenants against discrimination or
segregation, which shall continue in effect in perpetuity, the
covenants set forth in this Section 501 shall remain in effect
until the termination date of the Redevelopment Plan. Each of
the Participant shall be jointly and severally liable in the
event of noncompliance with this Section 501.
B. _ [5502] Maintenance and Operation of Facility
Agency and Participant shall jointly select and enter
into a Maintenance and Operation Agreement with a qualified
management company for maintenance and operation of the
structure by the time designated in the Schedule of Performance
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87-704662
(Attachment No. 3). The cost of the common area maintenance
j ("CAM") charges shall be allocated between the Agency and the
Participant in proportion both to the ratio of commuter parking
spaces and the commercial spaces and the commuter parking days
of .Monday through Friday and hours of 6:00 AM to 6:00 PM. The
following equation expresses this ratio:
Agency's portion (# of Commuter (# of working
of CAM charges. = Spaces) (12 hrs) days in month)
Total CAN charges (Total # of (17 hrs) (#.of days in
Spaces) month)
The number of commuter parking spaces and commercial parking
spaces shall be determined as specified in §501 of this
Agreement. tt�patk3ag
Collection of fees shall be handled by th
operator of the structure or as otherwise agreed between the
parties and distributed, based on a 50/50 division, to the
Participant and the Agency on a quarterly basis after the CAM
charge has been satisfied.
Issuance of a Certificate of Completion by the Agency
shall not affect Participant's obligations under this section.
C. [5503) Rights of Access
The Agency, for itself and for the City and other
public agencies, at their sole risk and expense, reserves the
right to enter the Site or any part thereof which is owned or
controlled by the Participant, at all reasonable times for the
purpose of construction, reconstruction, maintenance, repair or
service of any public improvements or public facilities located
on the Site. Any such entry shall be made only after
reasonable notice to Participant, and Agency shall indemnify
and hold Participant harmless from any costs, claims, damages
or liabilities pertaining to any entry. This Section 503 shall
not be deemed to diminish any rights the Agency, the City, or
any other public agencies may have without reference to this
Section 503.
D. [§504) Effect of Violation of' the Terms and
Provisions of this Agreement ==ter
Completion of Construecion
The Agency is deemed the beneficiary c= the terms and
provisions of this Agreement and of the covenants running with
the land, for and in its own rights and for the =urposes of
protecting the interests of the community and'eter parties,
public or private, in whose favor and for whose :enefit this
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87-704662
Agreement and the covenants running with the land have been
provided: The Agreement and the covenants' shall run in favor
of the Agency, without regard to whether the Agency has been,
remains or is an owner of any land or interest therein in the
Site or in the Project Area. The Agency shall have the right,
if the Agreement or covenants are breached, to exercise all
rights and remedies, and to maintain any actions or suits at
law or in equity or other proper proceedings to enforce the
curing of such breaches to which it or any other beneficiaries
of this Agreement and covenants may be entitled.
After issuance bf a Certificate of Completion for all
grading and improvements to be completed by the Participant
pursuant to this Agreement, all of the terms, covenants,
agreements and conditions set forth in this Agreement relating
to the Site shall cease and terminate as to that portion of the
Site for which the Certificate of Completion is issued,
excepting only the provisions listed below which shall survive
as follows:
(a) Sections 409, 501, 502 and 503 relating to Uses,
Maintenance and Access.
(b) Section 407 (relating to indemnification and
insurance) shall remain in effect in accordance with the
terms and conditions set forth therein.
(c) Sections 700 to 707 and 713 to 715 (relating to
rights and remedies) shall remain in effect to the extent
necessary to enforce other provisions of this Agreement.
(d) The Lease (Attachment No. 4) and Section 301 of
this Agreement shall remain enforceable according •to their
terms.
VI. (§600] GENERAL PROVISIONS
A. (§601] Notices, Demands and Communications Between
the Parties
Written notices, demands and communications between
the Agency, the Participant shall be sufficiently given if
'delivered by hand (and a receipt therefor is obtained or is
refused to be given) or dispatched by registered or certified
mail, postage prepaid, return receipt requested, to the
principal offices of the Agency, the Participant. Such written
notices, demands and communications may be sent in the same
manner to such other addresses as either party may from time to
time designate by mail as provided in this Section 601.
Notwithstanding the foregoing, notice by the Agency to either
the Participant shall be deemed to constitute notice to both
the Participant.
,12-11-87
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87-T04662
Any written notice, demand or communication shall be deemed received
Immediately If delivered by hand and shall be deemed received on the tenth day from the
date it is postmarked if delivered by registered or certified mail.
B. ( §6021 Conflicts of Interest
No member, official or employee of the Agency shall have any personal
Interest, direct or indirect, in this Agreement, nor shall any member, official or
employee participate in any decision relating to the Agreement which affects his
personal interests or the Interests of any corporation, partnership or association In which
he is directly or Indirectly interested. No member, official or employee of the Agency
shall be personally liable to the Participant, or any successor In Interest, In the event of
any default or breach of the Agency, or for any amount which may become due to the
Participant or successor or on any obligations under the terms of this Agreement.
Each of the Participant warrants that it has not paid or given, and will not pay
or give, any third party any money or other consideration for obtaining this Agreement.
C. ( §6031 Enforced Delay; Extension of Times
Performance
In addition to specific provisions of this Agreement, performance by either
party hereunder shall not be deemed to be In default, and all performance and other
dates specified In this Agreement and the Attachments hereto shall be extended, where
delays or defaults are due to: war; Insurrection; strikes; lockouts; riots; floods;
earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics;
quarantine restrictions; freight embargoes; lack of transportation; governmental
restrictions or priority; litigation; unusually, severe weather; inability to secure permits
(if the inability to secure permits isnot the fault of the participant), necessary labor,
materials or tools; delays of any contractor, -subcontractor or supplier; acts or omissions
of the other party; acts or failures to act of the CIty of San Juan Capistrano or any other
public or governmental agency or entity (other than the acts or failures to act of the
Agency which shall not excuse performance by the Agency); or any other causes beyond
the control or without the fault of the .party claiming an extension of time to perform..
Notwithstanding anything to the contrary in this Agreement, an extension of time for any
such cause shall be for the period of the enforced delay and shall commence to run from
the time of the commencement of the cause, if notice by the party claiming such
extension is sent to the other party within thirty (30) days of
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EXHIBIT A - Page 32 of 38
87-70466?
the commencement of the cause. Times of performance under this
Agreement may also be extended in writing by the mutual
agreement of Agency and Participant.
Notwithstanding the foregoing portion of this Section
603, the Participant is not entitled pursuant to this Section
603 to an extension of time to perform because of (i) past,
present, or future difficulty in obtaining suitable temporary
or permanent financing for the development of the Site.
D. [§604) Nonliability of Officials and Employees of
the.Aaencv
No member, official or employee of the Agency or the
City shall be personally liable to the Participant, or any
successor in interest, in the event of any default or breach by
the Agency (or -the City) or for any amount which may become due
to the Participant or its successors, or on any obligations
under the terms of this Agreement.
VII. [§700) DEFAULTS AND REMEDIES
A. [6701) Defaults -- General
Subject to the extensions of time set forth in
Section 603, failure or delay by either party to perform any
termor provision of this Agreement constitutes a default under
this Agreement. The party who so fails or delays must
immediately commence to cure, correct, or remedy such failure
or delay, and shall complete such cure, correction or remedy
with diligence.
The injured party shall give written notice of default
to. -the party in default, as well as other persons or entities
entitled to notice hereunder, specifying the default complained
of by the injured party. Except as required to protect against
further damages, the injured party may not institute
proceedings against the party in default until thirty (30) days
after giving such notice or, provided that the party is
proceeding with diligence to cure, such greater time as may be
necessary to cure given the nature of the default. Failure or
delay in giving such notice shall not constitute a waiver of
any default, nor shall it change the time of default.
B. [§7021 Legal Actions
1. (§703) Institution of Leaal Actions
In addition to any other rights or remedies and
subject to the restrictions in Section 701, either party may
institute legal action to cure, correct or remedy any default,
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87-704662
to recover damages for any default, or to obtain any other
remedy consistent with the purpose of this Agreement. Such
legal actions must be instituted in the Superior Court of the
County of Orange, State of California, in an appropriate
municipal court in that county, or in the Federal District
Court in the Central District of California.
2. [§7041 Applicable Law
The laws of�the State of California shall govern
the interpretation and enforcement of this Agreement.
3. [97051 Acceptance of Service of Process
In the event that any legal action is commenced
by the Participant against the Agency, service of process on
the Agency shall be made by personal service upon the Director
or in such other manner as may be provided by law.
In the event that any legal action is commenced
by the Agency against the Participant, service of process on
the Participant shall be made by personal service upon the
general partner of the Participant and shall be valid whether'
made within or without the State of California or in such other
manner as may be provided by law.
C. 167061 Rights and Remedies Are Cumulative
I Except as otherwise expressly stated in this,
Agreement, the rights and remedies of the parties are
cumulative, and the exercise by either party of one or more of
such rights or remedies shall not preclude the exercise by it,
at the same or different times, of any other rights or remedies
for the same default or any other default by the ocher party.
D. (§7071 Inaction Not a Waiver of Default
Any failures or delays by either party in asserting
any of its rights and remedies as to any default :hall not
operate as a waiver of any default or of any such rights or
remedies, or deprive either such party of its right to
institute and maintain any actions or proceedings which it may
deem necessary to protect, assert or enforce any such rights or
remedies.
E. [§708] Remedies and Rights of Termination
1. (§7091 Damages.
If either party defaults with regard =o any of
the provisions of this Agreement, the non-default_:g party
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87-704662
shall serve written notice of such default upon the defaulting
party. If the default is not cured or commenced to be cured by
the defaulting party within thirty (30) days after service of
the notice of default (or within such other period as is set
forth herein), the defaulting party shall be liable to the
other party for any damages caused by such default.
2. [§710] Specific Performance
If either party defaults under any of the provisions
of this Agreement, the non -defaulting party shall serve written
notice of such default upon the defaulting party. If the
-default is not cured by the defaulting party within thirty (30)
days of service of the notice of default, or such other time
limit as may be set forth herein with respect to such default,
the non -defaulting party at its option may thereafter (.but not
before) commence an action for specific performance of terms of
this Agreement.
[§711] Termination by the Participant
In the event that prior to the time established
for the Lease Transfer in the Schedule of Performance
(Attachment No. 3), the Participant is not in default of this
Agreement and has satisfied all of the Conditions Precedent (as
set forth in Section 302 of this Agreement), bui. the Agency
nevertheless fails to execute the Lease (Attachment No. 4) by
the time established therefor in the Schedule of Performance
(Attachment No. 3) then this Agreement shall, at the option of
the Participant, be terminated by written notice thereof to the
Agency. A termination under this Section 711 shall not prevent
the Participant from pursuing any claim for damages or specific
performance to which it might otherwise be entitled.
4. (§712] Termination by the Agency
Conveyance:
In the event that prior to the Leasehold
(a) The Participant (or any successor in
interest) assigns or attempts to assign the
Agreement or any rights therein or in the
Site in violation of this Agreement; or
(b) There is a change in the ownership sf he
Participant contrary to the provisions of
Section 109 hereof; or
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87-704552
(c) The Participant does not submit certificates
of insurance, construction plans, drawings
and related documents as required by this
Agreement, in the manner and by the dates
respectively provided in this Agreement
therefor any such default or failure shall
not be cured within forty-five (45) days
after the date of written demand therefor by
the Agency; or
(d) The Participant fails to satisfy all
Conditions Precedent (as set forth in
Section 302 of this Agreement) by the time
established therefor in the Schedule of
Performance (Attachment No. 3); or
(e) The Participant fails to provide proof to
the Agency by the date established for the
Agency Conveyance by the Schedule of
Performance (Attachment No. 3) that the
Participant has obtained binding loan
commitments for construction financing for
all of the Public Improvements;
then this Agreement and any rights of the Participant or any
assignee or transferee in the Agreement, or arising therefrom
with respect to the Agency or the Site, shall, at the option of
the Agency, be terminated by the Agency. A termination under
this Section 712 shall not prevent the Agency from pursuing any
claim for damages or specific performance to which it might
otherwise be entitled.
VIII. [§800) SPECIAL PROVISIONS
A. [§801) Real Estate Commissions
Each of the Agency, the Participant represents to the
other party that it has not engaged the services of any finder
or broker and that it is not liable for any real estate
commissions, broker's fees, or finder's fees which may accrue
by means of the acquisition of the Site, and agrees to hold
harmless the other party from such commissions or fees as are
alleged to be due from the party making such representations.
B. (§802) Successors In Interest
The terms, covenants, conditions and restrictions of
this Agreement shall extend to and shall be binding upon and
inure to the benefit of the heirs, executors, administrators,
successors and assigns of the parties.
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EXHIBIT A - Page 36 of 38
BT -T04662
Upon the termination of the restrictions imposed by
Section 109 of this Agreement, which terminate upon the
issuance by the Agency of a Certificate of Completion for all
of the Public Improvements, all of the terms, covenants,
conditions and restrictions of this Agreement which do not
terminate upon the issuance by the Agency of the Certificate of
Completion for the entire Site shall be deemed to be, and
shall, constitute terms, covenants, conditions and restrictions
running with the land.
C. [§803] Amendments to this Agreement
The Participant and the Agency agree to mutually
consider reasonable requests for amendments to this Agreement
which may be made by lenders, or Agency's counsel or financial
consultants, provided said requests are consistent with this
Agreement and would not substantially alter the basic business
terms included herein.
IX. [§900] ENTIRE AGREEMENT, WAIVERS
This Agreement may be signed in counter -parts, and is
executed in five (5) duplicate originals, each of which is
deemed to be an original. This Agreement includes pages 1
through 34 and Attachments 1 through 8, which constitutes the
entire understanding and agreement of the parties.
This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and
supersedes all negotiations or previous agreements between the
parties or their predecessors in interest with respect to all
or any part of the subject matter hereof.
All waivers of the provisions of this Agreement must
be In writing by the appropriate authorities of the Agency, the
Participant, and all amendments hereto must be in writing by
the appropriate authorities of the Agency, the Participant.
In any circumstance where under this Agreement either
party is required to approve or disapprove any matter, approval
shall not be unreasonably withheld.
X. [§1000] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
This Agreement, when executed by the Participant and
delivered to the Agency, must be authorized, executed and
delivered by the Agency on or before thirty (30) days after
signing and delivery of this Agreement by Participant or this
_Agreement shall be void, except to the extent that the
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EXHIBIT A - Page 37 of 38
87-704662
Participant shall consent in writing to a further extension of
time for the authorization, execution and delivery of this
Agreement. The date of this Agreement shall be the date when
it shall have been signed by the Agency.
IN WITNESS WHEREOF, the Agency and the Participant
have signed this Agreement on the respective dates set forth.
below.
December 15, 3.987 SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY
By:
Chairman
y L. Hausdorfer
"AGENCY"
ATTEST:
gency Se emary
Mary Ann Hanover
APPROVED AS TO FORM:
~. Thomas Clark Jr
'
Stradling, occa, Car on & Rauth,
Special Counsel to thd Agency
Agency Counsel
FRANCI AN PLAZA'
INVESTMENT GROUP
Paul Lloyd Farber
"PARTICIPANT"
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EXHIBIT A - Page 38 of 38
FIRST AMENDMENT TO
OWNER PARTICIPATION AGREEMENT
Agency Copy
This 'First Amendment to Owner Participation Agreement
("First Amendment") is entered into as of thisl7th day
of October , 1989, by and between the San Juan Capistrano
Community Redevelopment Agency (the "Agency") and Franciscan
Plaza Investment Group, a California corporation (the
"Participant"). '
R x Z I I a L 2
WHEREAS, Agency and Participant have previously entered
into an Owner Participation Agreement dated December 15, 1987,
(the "OPA"); and
WHEREAS, the parties mutually desire to add certain
provisions to the OPA, including without limitation Amendment
of the Lease Agreement between the parties (Attachment No. 4 to
the OPA) and provisions concerning reimbursement for costs
incurred by the parties or to be incurred by the parties for
archaeological studies.
NOW, THEREFORE, the Agency and the Participant agree to
amend the OPA as follows:
Section 1. On page 22 of the OPA, in Section 501,
entitled "Uses," amend the first full sentence on page 22 to
read: "However, in no event shall the number of commuter
spaces be less than one hundred thirty-one (131)."
Section 2. On page 22 of the OPA, preceding the first
full paragraph add:
As set out in greater detail in that certain Joint
Parking Agreement to be negotiated by and between
Participant and the Agency (the "Joint Parking Agreement"),
after completion of Phase II, In the event circumstances
determine that not all of the spaces in the Parking
Facility are needed for tenant parking, the Agency shall
have the right to obtain and set aside additional commuter
spaces upon -payment to the Participant -of $5,446 per
space. It is the intention of the parties that commuter
parking will not affect the evening hours of operation of
tenants as set forth in the Joint Parking Agreement.
The Agency shall have the right, upon• reasonable
notification to Participant, to use of the entire structure
for general public parking with no controls or charges for
special events and on special days, such as the annual
EXHIBIT B - Page 1 of 7
9
community celebration of Swallow's Day. Notwithstanding
1 anything herein to the contrary, the number of special
/ event days shall not exceed six (6) days per year, and
Participant shall receive notice thirty (30) days prior to
such special events. If so requested by the Agency,
Participant shall provide space to house the employees and
operations for proposed rail"baggage service and ticket
sales. In the event Agency requests such space in an area
other than the office being built in the Parking Facility,
or such office needs to be modified for this use, Agency
shall make such modifications at its sole cost. If any
modifications approved by both parties require a reduction
in the number of parking spaces such loss shall result in
an equal reduction in the one hundred and thirty-one (131)
spaces available for commuters.
Commencing with the opening of the Parking Structure
there shall be a minimum charge assessed for use of
commuter parking spaces and fifty percent (50%) of said
charge shall be payable to Participant.
Participant shall make the restrooms on the first
floor of the project available for use by the general
public. Signage indicating this shall be approved by both
the Agency and Participant and shall be appropriately
posted to adequately inform the public of the availability
of the restrooms.
Section 3. On page ,23 of the OPA, delete the first
sentence of the first paragraph of Section B.502 and
replace with the following:
Agency shall have sole discretion in selecting the
firm and/or method for managing the parking facility,
including the charges for use and other terms of operations
subject to providing the tenants of the Participant and the
Provincial Building with the required parking spaces and
ensuring the Participant receives 50% of the proceeds of
all paid parking.
Section 4. On page 30 of the OPA, after Section 803,
add new Sections 804, 805, 806, 807 and 808 to read as
follows:
"D. [§804] Reimbursement for Archaeological Studies.
1. [§805] Agency Reimbursement for Archaeological
Investigations
Participant at its sole cost and expense has caused
the investigation for cultural resources on that portion of
the Site identified as Assessor's Parcel Nos, 121-150-09,
121-150-10, 121-150-12, 121-1.50-20, 121-150-21, 121-150-22
(the "Parcels") at a cost of $24,980, The Agency agrees to
3488n/2299/030 -2-
EXHIBIT B - Page 2 of 7
reimburse the Participant for one-half of those costs
\ actually incurred in an amount not to exceed $12,490.
Reimbursement will be made within thirty (30) days after
the Participant has submitted a final accounting to the
Agency with supporting documentation which evidences the
costs actually incurred in the cultural resources
investigation of the Parcels.
2. [58063 Participant Reimbursement For
Archaeological Investigations
Agency at its sole cost and expense has caused the
further investigation of the Parcels for archaeological
resources at a cost not to exceed $141,188, under an
agreement with the Chambers Group dated May 3, 1989 (the
"Chambers Group Agreement"), and amended through subsequent
authorized change orders. The Participant agrees to
reimburse the Agency for a portion of the costs actually
incurred under the Chambers Group Agreement in an amount of
$35,297. Reimbursement will be made within thirty (30)
days of the completion of work under the Chambers Group
Agreement. -
In addition, Participant shall at its sole cost and
expense has caused further archaeological investigation of
the Parcels at a cost of $212,897. The Agency agrees to
reimburse the Participant for additional mitigation
1 measures in an amount not to exceed $158,984.
Reimbursement will be made within thirty (30) days after
the Participant has submitted a final accounting to the
Agency with supporting documentation which evidences the
costs actually incurred and paid in the cultural resources
investigation of the Parcels.
The Agency's total obligations in Section 805 and 806
is $277,365., of which $74,899.53 has already been paid.
The remainder shall be reimbursed according to the
provisions set forth in Sections 805 and 806.
Participant agrees that in return for the
reimbursement promised and the cost incurred by the Agency
under Sections 805 and '806 that the Agency shall become the
sole owner of any archaeologically significant materials,
objects or other finds located on the Parcels. Participant
shall have the right to display selected items from the
archeological finds located on the Parcels provided they
are properly displayed and adequately protected as required
by Agency. Agency shall have the right to 'approve the
specific items and period of display. In the event that
the Agency determines to transfer the ownership interest in
3488n/2299/030 -3-
EXHIBIT B - Page 3 of 7
any of said finds located on the Parcels, then the proceeds
of said transfer shall be divided on a fifty percent (50°x)
basis between the Agency and the Participant.
4. moa -i Liability
Participant shall protect, defend, indemnify and hold
harmless the City of San Juan Capistrano (the "City"), the
Agency and their elective and appointive boards, officers,
agents and employees from any and all claims, liabilities,
expenses, or damages of any nature, including attorney
fees, for injury to, br death of, any person, and for
injury to any property, including consequential damages of
any nature resulting therefrom, arising out of or in any
way connected with the performance under Sections 805 or
806 of this Agreement by, or on behalf of,Participant.
Participant shall comply with all of the provisions of
the Worker's Compensation Insurance and Safety in
Employment Laws of the State of California, including the
applicable provisions of Divisions 4 and 5 of the
California Labor Code and ally amendments thereto, and all
similar state, federal, or local laws applicable; and shall
indemnify and hold harmless the City and the Agency and
their employees, officers and agents from and against all
claims, liabilities, expenses, damages, suits, actions,
proceedings and judgments of every nature and description,
iiicluding.attorney, s fees, presented, brought or recovered
against City or Agency, for or on account of any liability
under any of said laws which may be incurred by reason of
any work performed under Sections 805 or 806 of this
Agreement by Participant or on its behalf.
Agency and City do not, and shall not, waive any
rights against Participant which they may have by reason of
this Section 808 because of the acceptance by City or
Agency or the deposit with City or Agency by Participant of
any insurance policies or certificates. of insurance
purporting to indemnify for the aforesaid losses. The
aforesaid hold -harmless agreements by Participant shall
apply to all liabilities, claims, expenses, and damages of
every kind including, but not limited to, attorney fees,
suffered or alleged to have been suffered, by reason of the
aforesaid operations of Participant or any subcontractor or
others performing on behalf of Participant, regardless of
whether or not such insurance policies are applicable."
Section 5. On pages 3 and 4 of Attachment Eq. 4 to the
OPA (the "Lease Agreement") amend Section 4(a) 'to read as
follows:
348Bn/2299/030
-4-
EXHIBIT B - Page 4 of 7
'(a) Rent. For each of the periods (the 'Rental Periods")
commencing six (6) months from the date the City allows the
occupancy of the Parking Facility through the issuance of
the Certificate of Occupancy or a Temporary Certificate of
Occupancy on the Parking Facility in conformity with the
Agreement and continuing according to the schedule below
for the first six (6) Rental Periods and thereafter on an
annual basis, the Lessee agrees to pay to the Lessor as the
Base Rent the sum of One Dollar ($1.00). The Certificate
of Occupancy or Temporary Certificate of Occupancy shall
not be withheld due solely to a delay in the Participant's
installation of the eiluipment necessary for commuter
parking. in addition to the Base Rent, the Lessee agrees
to pay to the Lessor Supplemental Rent for the first three
(3) Rental Periods according to the following table:
Ending in Amount of
Rental Period Month Supplemental Rent
1 6 $312,540
2 - 18 281,271
3 36 250,024
At the end of the third operating year after the date of
issuance of the certificate of completion for the Parking
Facility, the Lessee and Lessor shall review the actual
performance to determine the third year net cash flow after
debt service and before distribution to the Participant as a
percentage of equity. In making this calculation, equity shall
be the difference between the construction lender(s)' or
permanent lender(s) determination of project value for the
purposes of making the construction loan and the amount of the
loan. Using this percentage the Lessee shall pay an additional
amount of Supplemental Rent for Rental Periods 4, 5 and 6,
ending in months 48, 60 and 72 respectively, based on the
following table:
Cash Flow as Additional Amount of .
% of Equity Supplemental Rent
less than 0% 275,000
0% to 4.0% 200,000
4.0% to 8.0% 175,000
8.0% to 13.0% 150,000
13.0% to 17.0% 125,000
more than 17.0% -0-
Section 6. Option to Purchase.
The Agency shall have the right to purchase the Parking
Facility at its sole option. This option may not be exercised
before two (2) years after the certificate of completion has
3488n/2299/030 -5-
EXHIBIT B - Page 5 of 7
been issued on the entire project (Phase I and Phase II), and
must be exercised no later than seven (7) years after the
issuance of the certificate of completion for the entire
.project.
The Agency and the Participant shall begin negotiations to
set the price at which the Agency may purchase the Parking
Facility and the lease back costs within thirty (30) days of
the execution of this First Amendment. At the time of
negotiations, the Agency and the Participant shall agree in
writing on all factors which shall be used to establish a value
for the structure including, but not limited to, the following
criteria:
1. The original construction cost of the Parking Facility
including hard costs, soft costs and offsites.
2. The original cost of the land on which the Parking
Facility is located.
3. Payments -the Participant has made to the date of the
purchase for financing fees,, principal and interest on the
portion of his financing dealing with the Parking Facility.
4. Compensation paid to date by the Agency to the
Participant for the lease of the structure.
5.• such other factors as the Agency or the Participant
may deem appropriate in establishing a value for the structure.
Unless otherwise modified by agreement between the Agency
and the Participant, upon purchasing the Parking Facility the
Agency and the Participant shall ensure the following:
1. Adequate parking shall be maintained for the tenants
of Franciscan Plaza and the Provincial Building according to
conditions set forth in the Joint Parking Agreement.
2. The Participant shall continue to: (i) receive its
share of the compensation collected by the Agency for the paid
parking and (ii) pay its share of the CAM.charges.
In the event that the parties, are unable to come to an
agreement by October 1, 1990 as to the option purchase price
this option shall be terminable by either party. In the event
that this section is found to be unenforceable or invalid such
unenforcibility or invalidity shall not effect .any other
provision of this Agreement which shall remain in full force
and effect.
3488n/2299/030 -6-
EXHIBIT B - Page 6 of 7
Section 7. Each and every provision of the OPA remains
i in full force and effect and survives this Amendment. The OPA
is incorporated herein by this reference.
SAN JUAN CAPISTRANO COMMUNITY
REDEVE�NT AGENCY '
Kenneth E. F ies , Chairman
APPROVED AS TO FORM:
�&ate .fl�-4, .;Al).
Stradling, Yocca, Carlson & Rauth
Agency Attorney
FRANCISL A INVESTMENT GROUP
By:
Paul F rber, Rzesident
3488n/2299/030 -7-
EXHIBIT B - Page 7 of 7
Recording Requested by:
City of San Juan Capistrano
And when recorded, please mail to:
City of San Juan Capistrano
City Clerk's Department
32900 Paseo Adelanto
San Juan Capistrano, CA 92675
Recording fees exempt due to Govt
Code 6103
Documentary Transfer Tax - No
Considerat ory�
M r are t M. Monahan, City Clerk
C t of San Juan Capistrano
Second Amendment to Owner Participation Agreement
This Second Amendment to Owner Participation Agreement ("Second
Amendment") is entered into as of this 7th day of May, 2002, by and
between the San Juan Capistrano Community Development Agency (the
"Agency") and Busk Development, Inc. (hereinafter referred to as
"Owner").
Recitals
Whereas,' the Owner Participation Agreement was executed by the
Agency and Franciscan Plaza Investment Group, the original
developer of the Franciscan Plaza project (the "Participant"), on
December 15, 1987;and,
Whereas, the First Amendment to the owner Participation Agreement
was executed by the Agency and the Participant on October 17,
1989;and,
Whereas, the current "Owner" and Agency desire to amend certain
provisions of the Owner Participation Agreement and its First
Amendment.
Now, therefore, the Agency and Owner agree to amend the Owner
Participation Agreement and the First Amendment to the Owner
Participation Agreement as follows:
Section A. Section 1 of the First Amendment to the Owner
Participation Agreement and Section 501 of the Owner Participation
Agreement shall be amended to provide for• seventy-three
(73)commuter parking spaces.
Section B. Except to the extent that the Owner Participation
Agreement and the First Amendment to the Owner Participation
1
EXHIBIT C - Page 1 of 2
Land are modified by the First Amendment each and every provision
of the Joint Parking and Maintenance Agreement remains -in full
force and effect and survives this Amendment. The Joint Parking
And Maintenance Agreement is incorporated herein and by this
reference. If any ambiguity exists between this First Amendment
and the Joint Parking and Maintenance Agreement, this First
Amendment shall control.
In Witness Whereof, the parties have executed this First Amendment
as of the day and year above,written.
ApprQye as to Form:
John Shaw; Agency Council
Attest: *� /
Ma ret M. Monahan, Agency Secretary
2
EXHIBIT C - Page 2 of 2
Agency
RECORDED IN OFFICIALRECOR 09-681 0Z5 C°PY
OF ORANGE COUNTY CALIFOR
4:00
PM DEC 15 1989
X jap Q. c4,, JL, Rworder
Recording Requested by: Recording fees exempt due to Govt
City of San Juan Capistrano Como 6103
Documentary Transfer Tax - No
Consideration
And when recorded mail to: �//
City of San Juan Capistrano /j /GC!/}C�Q&If4l N�
City Clerk's Department Nary An an ver, C— ity Cler k
32400 Paseo Adelanto City of San Juan Capistrano
San Juan Capistrano, CA 92675
JOINT PARKING AND MAINTENANCE AGREEMENT AND
DECLARATION OF COVENANTS
RUNNING WITH THE LAND
THIS JOINT PARKING AND MAINTENANCE AGREEMENT AND DECLARATION
OF COVENANTS RUNNING WITH THE LAND (the "Agreement") is made and
entered into on this 5th day of December , 1989, by and between
Franciscan Plaza Investment Group, a California limited
partnership, (hereinafter referred to as "Developer") and the San
Juan Capistrano Community Redevelopment agency, a public body,
corporate and politic (hereinafter referred to as "Agency").
RECITALS:
This Agreement is made and entered into on the basis of the
following facts, understandings and intentions of the Parties:
A. On or about September 30, 1987, Developer and Robert L.
Larasen and Dorothy Ngaire Larsen, Trustee of the Robert L. Larsen
and Dorothy Ngaire Larsen 1984 Inter Vivos Trust, Dated December
6, 1984 ("Larsen" collectively herein) entered into a certain
Easement Agreement (the "Developer/Larsen Easement Agreement")
which was recorded December 18, 1989 as instrument number 87-700180
in Official Records of Orange County, California which provided for
certain reciprocal easements appurtenant to the properties owned
by Developer and Larsen, respectively, and which contains an
agreement concerning parking in the Parking Facility hereinafter
defined. The term "Larsen Parcel" as used herein shall mean those
certain lands referred to as the Larsen Parcel in the
Developer/Larsen Easement Agreement. '
B. On or about December 15, 1987, Developer and Agency
entered into a certain Owner Participation Agreement (the "OPA")
which defined a certain Parking Facility and made provision for a
EXHIBIT D - Page 1 of 23
* a
future lease between Developer and Agency for said Parking Facility
as well as the potential subsequent acquisition of the fee interest
in the Parking Facility by Agency from Developer. The Parking
Facility is indicated on Attachment No. 1 attached hereto and is
a structure built on a portion of those lands more fully described
in Attachment No. 2 attached hereto. The potential subsequent
acquisition of the fee interest in the Parking Facility is subject
to Developer's compliance with the California Subdivision Map Act.
All terms used in this Agreement are more fully defined in said
ORA, said OPA being incorporated by reference herein.
C. Concurrently with the grant of an estate in the Parking
Facility from Developer to Agency (defined as the "Lease Transfer"
in the ORA), Developer and Agency desire to set forth certain
covenants which will run with the Parking Facility and pertain to
the operation and use of said Parking Facility as (1) an integral
part of the contiguous real property fully defined in Exhibit A
attached hereto (the "Shopping Center"), (2) an integral part of
the contiguous real property fully defined in Exhibit B attached
hereto (the "Larsen Parcel") pursuant to the terms of the
Developer/Larsen Agreement, and (3) as a public facility used for
paid commuter parking. The Shopping Center together with the
Parking Facility shall be collectively referred to herein as the
"Parcels".
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other valuable consideration, the
Parties agree as follows:
1. DEFINITIONS. Each reference in this Agreement to any of the
following terms shall mean:
1.1. Building Area. Those areas to be utilized for
construction of the building and improvements intended for
commercial or office use on the Shopping Center.
1.2. Common Area. All areas of the Parking Facility
together with the "pedestrian promenade" and "pedestrian bridge",
all as shown and indicated on Attachment No. 1 hereto together with
the "Camino Capistrano driveway" shown and indicated on Attachment
No. 2 hereto. Any enlargement of or addition to the Common Area
as provided herein shall be included in the definition of Common
Area for purposes of this Agreement.
1.4 Occupant. Any person or persons from time to time
entitled to the use and occupancy of any portion of the Building
Area in the shopping Center or the Larsen Parcel under this
Agreement or any lease, license or concession agreement, or other
instrument or arrangement under which the Occupant acquires its
EXHIBIT D - Page 2 of 23
right to such use and occupancy. Occupant shall include the
officers, directors, employees and agents of such persons.
1.5 Parking Area. That portion of the Common Area used for
parking of motor vehicles, including without limitation, incidental
and interior roadways, walkways, curbs and landscaping within the
areas used for such parking, together with all improvements which
at any time are erected thereon, but excluding parking equipment
or space to house the employees and operations for proposed rail
baggage service and ticket sales and for security personnel located
in the Common Area. Any enlargement of or addition to the Parking
Area shall be included in the definition of Parking Area for
purposes of this Agreement.
1.6 ' Parties. Agency and Developer and their respective
successors in interest to their respective interests in the
Shopping Center and Parking Facility, as shown on the Official
Records of Orange County, California.
1.7 Users. All persons granted permission to utilize the
Common Area, including without limitation, Occupants, Parties,
employees and service people, licensees, invitees, customers,
owners, contractors, agents, lessees, sublessees, tenants and
concessionaires.
1.8 Commuters. Members of the public who have paid a daily
fee in the minimum amount of Two Dollars ($2.00) per day for a
license to park their vehicles in the Parking Facility.
2. GRANT OF RECIPROCAL EASEMENTS.
2.1 Common Area Easements. The Common Area on each Parcel
shall be used only for the following purposes related to the
business and activities conducted in the Shopping Center and in the
Larsen Parcal and related to the use of the Parking Facility for
paid Commuter parking:
a. Parking. Parking of motor vehicles in the Parking
Facility. The number of spaces allocated without charge to the
Users and Occupants of the Shopping Center shall be based upon a
determination of the parking spaces necessary for the commercial
uses as determined by the City of San Juan Municipal Code (the
"Code"). Additionally, a certain number of spaces shall be
allocated to Users and Occupants of the Larsen Parcel as set forth
in Section 7.1.a, hereinafter. The remainder of the spaces shall
be allocated to Commuters. This proportion shall be readjusted if
a change in the use of the commercial space requires a greater or
lesser number of parking spaces under the Code. Notwithstanding,
(1) in no event shall the number of Commuter spaces be less than
EXHIBIT D - Page 3 of 23
one hundred thirty-one (131) and (2) in the event that, after
completion of Phase II, circumstances determine that not all of the
spaces in the Parking Facility are needed prior to 7 P.M. for
parking by Users and Occupants of the Shopping Center, the Agency
shall have the right to obtain and set aside additional Commuter
spaces upon written agreement between the Parties and upon payment
to the Developer of $5,446.00 per space or more; it being agreed
and understood that the sum of $5,446.00 was arrived at based upon
a projected cost of $1,203,566.00 and a total of 221 spaces for the
purposes of this Section 2.1.a.
Subject to the rights hereto granted by Developer to Users and
Occupants of the Shopping Center, the Agency shall have the right,
upon reasonable notification to Developer, to use all of the
Parking Facility for public parking on Swallow's Day and up to five
(5) additional "Special Days" per year upon reasonable notice to
Developer. In such event, no fee shall be collected from persons
parking in the Parking'Facility. On such days, Users and Occupants
shall continue to have the right to use the Parking Facility but
such use will be on a "first come, first serve" basis.
The Agency may promulgate, and shall use their best efforts to
enforce, rules and regulations pertaining to parking. Agency
shall have sole discretion in selecting the firm and/or method for
managing the parking facility, including the regulations,
reasonable charges for Commuter parking use and other terms of
operations subject to the terms of this Agreement. As of the date
of this Agreement, however, Developer has been designated by Agency
as the manager of the Parking Facility and, as manager, Developer
will continue to receive a management fee from Agency, it being
agreed and understood that the management fee is equal to the
administrative fee included in common area maintenance charges
described hereinbelow. Agency may at any time upon thirty (30)
days written notice to Developer select an alternative management
firm. The purpose of the rules and regulations shall be to ensure
order and safety but shall not unreasonably interfere with the
rights granted Developer hereunder. All fees collected by the
Agency (or Developer if Developer is acting as manager of the
Parking Facility) shall be distributed, on a 50/50 basis, between
Developer and Agency on a quarterly basis. No offset shall be
made for common area maintenance charges. Agency (or Developer
if Developer is acting as manager of the Parking Facility) shall
bill Developer (or Agency if Developer is acting as manager of the
Parking Facility) quarterly for the other Party's share of common
area maintenance charges attributable to the Parking Facility
pursuant to Section 3.2 hereinafter and such charges shall be paid
EXHIBIT D - Page 4 of 23
0 f
within forty=five (45) days of billing.
b. Ingress and Egress. Ingress and egress by any Users
and any motor vehicles of such Users to and from any portion of the
Common Area and the public streets adjacent to the Common Area.
C. Public Utilities. Installation, maintenance and
operation of public utilities and services for the Common Area'or
Building Area, together with and including, without limitation,
vaults, manholes, meters, transformers, pipelines, valves,
hydrants, sprinkler controls, conduits, sewage facilities, and all
related facilities, all of which shall whenever and wherever
reasonably feasible be located below the surface of the Common
Area, or the surface of any other above ground improvements located
thereon; provided, however, that in any event, all of the foregoing
permitted public utilities and installations, which are located
above the surface of the Common Area, shall be placed so as not to
interfere with, restrict, or impede other uses of Common Area
provided for herein.
d. Pedestrian Traffic. Pedestrian traffic by Users
between business establishments in the Building Areas, between the
Building Areas and the Common Area, and, between the Building Areas
and Common Area and the adjoining streets.
e. Comfort and Convenience. Minor comfort and
convenience facilities for Users, such as mailboxes, public
telephones, and benches, as each Party may from time to time deem
appropriate to construct or permit to be constructed on the
respective Parcels; provided, however, that no such minor
inconvenience facilities shall interfere with, restrict or impede
other uses of the Common Area provided herein.
f. Temporary Construction Activity. Construction,
maintenance, repair, replacement, rearrangement and remodeling of
buildings and improvements within Building Areas, and Common Areas,
landscaping, pedestrian walkways and other improvements in the
Common Area not substantially affecting or changing the Common Area
except as permitted or required. herein. All such work shall be
conducted in the most expeditious manner reasonably possible to
minimize the interference with use of the Common Area, shall be
diligently prosecuted to completion, and shall otherwise be
performed in compliance with the provisions of Section 2.5 hereof.
in connection with work of construction performed with Building
Areas; incidental encroachment upon Common Area may occur as a
result of the use of ladders, scaffolding, store -front barricades
and similar facilities resulting in temporary obstruction of
portions of the Common Area, all of which are permitted hereunder
so long as their use is kept within reasonable requirements of
5
EXHIBIT D - Page 5 of 23
construction work expeditiously pursued. Common Area may be
utilized from ingress and egress of vehicles transporting
construction materials and equipment and persons employed in
connection with any work provided for herein and temporary storage
of materials and vehicles being utilized in connection with such
construction, subject to all of the other terms of this Agreement.
g. Service and Delivery Vehicles. Ingress, egress, and
temporary parking of delivery and service vehicles travelling to
and from the Building Areas, or any portion thereof, and the public
streets adjacent to the Shopping Center for the delivery of goods,
wares, merchandise, furniture, fixtures, supplies and equipment,
and the rendering of services to any Occupant.
h. Doors and Exits. The opening on to the Common Area
of doors and other exits of portions of the building Areas
contiguous to the Common Area.
i. Foundations, Footings, Overhangs and Canopies.
Installation, repair, replacement and maintenance of:
(i) building foundations and footings; (ii) building canopies and
canopy support columns; and (iii) pilasters and other building
columns or pillars extending from any portion of the Building Area
of any Parcel, over, onto, under and into the Common Area;
provided, however, that building foundations and footings shall not
extend beyond a lateral distance of five feet (5') from the
Building Area limit lines upon which the building is located; and
provided, further, that any building canopies or building overhangs
on any building on a Parcel shall not in any event extend beyond
the vertical plane of the outside edge of a sidewalk in the Common
Area located on the Parcel, adjoining the Building Area perimeter.
j. Encroachments. Minor encroachments of building
overhangs, support columns, canopies, eaves and signs from a
Building Area into the Common Area.
2.3 Grant of Easements by Parties. Each Party grants to the
other Party non-exclusive easements over, across, in, under and
through each Parcel and appurtenant to and for the benefit of the
other Parcel, for the uses and purposes set forth in Section 2.1
and 2.2. Each Party further grants to the other Party a non-
exclusive easement, appurtenant to and for the benefit of their
respective Parcels, for ingress, egress and access to the Common
Area located over, along, and under each Party's Parcel for the
purpose, of effectuating any necessary repairs, maintenance and
replacement of the Common Area located on each Parcel as provided
herein.
2.4 Use, Duration, and Termination of Easements.
EXHIBIT 0 - Page 6 of 23
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Recording Requested by:
City of San Juan Capistrano
And when recorded, please mail to:
Recording fees exempt due
Code 6103
Documentary Transfer Tax
Consideration
to Govt
- No
Margaret M. Monahan, City Clerk
City of San Juan Capistrano City of San Juan Capistrano
City Clerk's Department
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
First Amendment to Joint Parking and Maintenance Agreement and
Declaration of Covenants Running with the Land.
This First Amendment to Joint Parking and Maintenance Agreement and
Declaration of Covenants Running with the Land. ("First
Amendment") is entered into as of this 7th day of May, 2002, by and
between the San Juan Capistrano Community Development Agency (the
"Agency") and Busk Development, Inc. (hereinafter referred to as
"Owner").
Recitals
Whereas, the Joint Parking and Maintenance Agreement and
Declaration of Covenants Running with the Land was executed by the
Agency and Franciscan Plaza Investment Group, the original
developer of the Franciscan Plaza project, on December 5, 1989;and,
Whereas, the current "owner" and Agency desire to amend certain
provisions of the Joint Parking and Maintenance Agreement and
Declaration of Covenants Running with the Land.
Now, therefore, the Agency and Owner agree to amend the Joint
Parking and Maintenance Agreement and Declaration of Covenants
Running with the Land as follows:
Section 1. On page 3, Section 2, entitled, "Grant of Reciprocal
Easements". Subsection (a.), entitled, "Parking", the sixth
sentence that reads: "Notwithstanding, (1) in no event shall the
numbers of commuter spaces be less than 131...". Shall be amended
to read: "Notwithstanding (1) in no event shall the number of
Commuter spaces be less than seventy-three (73)...".
Section 2. Except to the extent that the Joint Parking and
Maintenance Agreement and Declaration of Covenants Running with the
A
EXHIBIT E - Page 1 of 2
0
0
Land are modified by the First Amendment each and every provision
of the Joint Parking and Maintenance Agreement remains in full
force and effect and survives this Amendment. The Joint Parking
and Maintenance Agreement is incorporated herein and by this
reference. If any ambiguity exists between this First Amendment
and the Joint Parking and Maintenance Agreement, this First
Amendment shall control.
In Witness Whereof, the parties have executed this First Amendment
as of the day and year above written.
Appro a as to Form:
John Shaw, Agency Council
Attest:
Margaret M. Monahan, Agency Secretary
Owne
lmaBus k,�-;a—
Agency: ✓
Collene Campbell,
Chairperson
CIOrEXEMrCC
Recording Requested By and
When Recorded Mail To:
San Juan Capistrano Community
Redevelopment Agency
Attention: C$ty Clerk
32400 Paseo Adelanto
Sari Juan Capistrano, CA 92675
Recordir --Fees Exempt Due to Gov 1-t Code
Section V r2cumentary Trrnsfer Tax -
Noo Considei , _7.
City Cl k, ity of Sa:f JuaiWCapiaYrano
`RECORDD ) OFORANGEI000NTY.CAUFORNIA
3:00
P.m. AUG 14//1990
Q.'6td WZREOORDER
above for Recorder's use only
zX&®r
THIS LEASE AGREEMENT is dated as of ra(' S , 1990
by and between FRANCISCAN PLAZA INVESTMENT GROUP, a California
limited partnership (the "Lessor") and the SAN JUAN CAPISTRANO
COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and
politic (the "Lessee").
W I T N E S S E T H:
That for and in consideration of the mutual promises
and agreements herein contained, -the parties hereto agree as
follows:
SECTION 1: Definitions.
Unless the contest otherwise requires, the terms defined in
this'Section 1 shall, for all purposes of this Lease, have the
meanings herein specified.
"Agreement" means that owner participation agreement
entered into between. the Lessor and the Lessee for the
disposition and development of various property (including
without limitation that property described in Exhibit A to this
Lease), dated December 15, 1967, together with, and as amended
by the First Amendment to the owner participation agreement
dated October 17, 1989. A copy of said Agreement, which is on
file with the Lessee at. its offices, is incorporated herein by
reference.
.Base Rent
"Base Rent" means that rent due for the Project as defined
in Section 4(a) of this Lease.
EXHIBIT F - Page 1 of 20
City
"City" means the City. of San Juan Capistrano, a municipal
corporation.
"Lessee" or "Agency". means the San Juan Capistrano
Community Redevelopment Agency, a public body, corporate and
politic.
Lessor or Participant
x
"Lessor" or "Participant" means Franciscan Plaza Investment
Group, a California limited partnership. The Lessee shall be
entitled to make payment to Franciscan Plaza Investment Group,
which payment shall discharge its obligations for payment
hereunder to the Lessor. Franciscan Plaza Investment Group
shall be liable and responsible for all of the undertakings,
duties and covenants of the Lessor set forth in this Lease or
arising therefrom.
"=,
"Public Improvements" means those improvements so described
in the Agreement.
"Parking Facility" means the structure to be completed on
the Site as depicted on Attachment No. 1 to the Agreement.
"Redevelopment Plan" means the Redevelopment Plan which was
approved, adopted and amended by the City Council of the City
of San Juan Capistrano by ordinance Nos. 509, 547 and 582.
"Rental Period" means the period with respect to which Rent
is payable pursuant to Section 4(a) of this Lease.
"Site" means that real property so described in the
Agreement and the "Legal Description of the Site" which is
attached hereto marked Exhibit "A" and incorporated herein by
reference.
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EXHIBIT F - Page 2 of 20
"Term" means the period of fifty-five (55) years.
The Lessor hereby leases the Parking Facility, when the
same is constructed according to the Agreement, to the Lessee,
subject to the terms and conditions of this Lease.
SECTION 3: Term.
The Term of this Lease shall commence on the date of
issuance of the Certificate of Completion for the Parking
Facility. This Lease shall terminate at the end of the Term.
This Lease, and any provisions hereof, shall not be extended
without the express written approval of the Lessee which
approval the Lessee may grant, withhold, or deny at its sole
and absolute discretion.
SECTION 4 • Rent.
The Lessee shall pay rent to the Lessor in the amounts, at
the times and in the manner set forth herein, said amounts
constituting in the aggregate the total of the annual rents
payable under this Lease as follows:
(a) Rent: For each of the periods (the "Rental
Periods")'commencing six (6) months from the date the City
allows the occupancy of the Parking Facility through the
issuance of the Certificate of Occupancy or a Temporary
Certificate of Occupancy on the Parking Facility in conformity
with the Agreement and continuing according to the schedule
below for the first six (6) Rental Periods and thereafter on an
annual basis, the Lessee agrees to pay to the Lessor as the
Base Rent the sum of One Dollar ($1.00). The Certificate of
Occupancy or Temporary Certificate of Occupancy shall not be
withheld due solely to a delay in the Participant's
installation of the equipment necessary for commuter parking.
In addition to the Base Rent, the Lessee agrees to pay to the
Lessor Supplemental Rent for the first three (3) Rental Periods
according to the following table:
Ending In Amount of
Rental Period Month_ Supplemental Rent
1 6 $312,540
2 18 281,271
3 36 250,024
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EXHIBIT F - Page 3 of 20
At the end of the third operating year after the date of
issuance of the certificate of completion for the Parking
Facility, the Lessee and Lessor shall review the actual
performance to.determine the third year net cash flow after
debt service and before distribution to the' Participant as a
percentage of equity. In making this calculation, equity shall
be the difference between the construction lender(s)' or
permanent lender(s) determination of project value for the
purposes of making the construction loan and the amount of the
loan. Using this percentage the Lessee shall pay an additional
amount of Supplemental Rent for 'Rental Periods 4, 5 and 6,
ending in months 48, 60 and 72 respectively, based on the
following table:
Cash Flow as Additional Amount of
of Ecauity S+�onlemental_Rent
less than 0% 275;000
0% to 4.0% 200,000
4.0% to 8.0% 175,000
8.0% to 13.0% 150,000
13.0% to 17.0% 125,000
more than 17.0% -0-
(b) Payment. Payments of Rent shall be made in lawful
money of the United States of America, by warrant or check
drawn against funds of the Lessee.
(c) Consideration. The payments of Base Rent and, if
applicable, Supplemental Rent,• hereunder for each Rental Period
for the term of this Lease, shall constitute the total rental
for said Rental Period and shall be paid by the Lessee at the
conclusion of said Rental Period. In addition to the rental,
the parties agree as specified in the Agreement that Parking
Revenue generated from commuter or other paid parking shall be
divided between the Participant and the Agency.
�1 •1- •f • • V4.1 t :1•.
No duties, other than those set out in the Agreement, with
respect to the construction of any improvements on the Site or
the maintenance of the Site or any improvements thereon, or to
provide insurance or indemnities with respect to the use of the
Site shall be deemed to be imposed upon the Lessee by virtue of
this Lease. Lessor and Lessee shall enter into a maintenance
and operation agreement with a qualified management company
(the "Operator"). The cost of the common area maintenance
("CAM") charges shall be allocated between the Agency and the
Participant in proportion to a ratio which considers the number
of commuter parking spaces and commuter hours and days of
operation compared to the total operational use of the
04/02/90
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EXHIBIT F - Page 4 of 20
structure. Specifically the Agency portion of monthly CAM
charges may be determined by utilizing the following formula:
Agency's po r ion (# of.Commuter (# of Working
of CAM charges = Sgaces) (12 hrs) days in month)/7
Total CAM charges (Total # of ( hrs) (# of days in
Spaces) 14 nA month) lq(
SECTION 6• UM. ( 'X
During the term of this Lease, subject to obtaining consept
by lenders of record with 'encumbrances senior to the Agency's
rights pursuant to this Lease and subject to the terms of the
maintenance and operation agreement as described in Section 5
of this Lease, the Lessee shall have the right to use the Site,
and to assign its rights hereon or enter into a sublease to any
public or nonprofit entity as it deems appropriate, in its sole
discretion. Both parties acknowledge that the Parking Facility
is burdened with a covenant which shall run with the land to
provide for public use of the facility as defined in the
Agreement. The proportion of commuter and .commercial parking
shall be as specified in §501 of the Agreement.
SECTION 7: Insurance.
Throughout the Term, the Lessor shall maintain or cause -to
be maintained at its cost the following policies of insurance:
(1) insurance against loss or damage to the
aboveground portion of the Facilities resulting from fire,
earthquake, lightning, vandalism, malicious mischief and such
perils ordinarily defined as "extended coverage" and such other
perils' as the Lessor and the Lessee may agree should be insured
against, if such insurance is available from reputable
insurers. In the event that Lessor determines that \ the
earthquake portion of the insurance required in this Section 7
has become economically unreasonable to obtain, it may request
relief from the Agency for this requirement and the Agency
shall not unreasonably withhold its permission to modify this
section if it -determines in its sole discretion that such a
requirement has become an economically unreasonable burden.
Such insurance shall be maintained in an amount not less than
the full insurable value of the Facilities subject to al
"deductible clause" in the amount of Ten Thousand Dollars
($10,000.00) and shall contain an inflation guard endorsement.
The term "full insurable value" as used in this Section shall
mean the actual replacement cost "new";
(2) public liability insurance against claims for ,
bodily injury or death, or damage to property occurring upon,
in or about the Project, such insurance to afford protection to
09/02/90
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EXHIBIT F - Page 5 of 20
a limit of not less than Two Million Dollars ($2,000,000)
combined single limit bodily injury and property damage with
not greater than Ten Thousand Dollars ($10,000) deductible;
(3) worker's compensation insurance, if applicable,
issued by a'responsible carrier authorized under the laws of
the State of California to insure employers against liability
for compensation under the Worker's Compensation insurance and
Safety Act now in force in California, or any act hereafter
enacted as an amendmgnt or supplement thereto or in lieu
thereof, such worker's compensation insurance to cover all
persons employed in connection with the Parking Facility and to
cover full liability for compensation under any such act
aforesaid, based upon death or bodily injury claims made by,
for or on behalf of any person incurring or suffering injury or
death during or in connection with the Parking Facility or the
business of the Lessor and activities of the Lessee with
respect to the Parking Facility.
All insurance herein provided for shall be effected under
policies issued by insurers of recognized responsibility,
licensed or admitted to do business in the State of
California. All policies or certificates shall name the
Lessee, the City and the Lessor as named insureds, and shall <5 -
include waivers of subrogation.
All policies or certificates issued by the respective
insurers for insurance shall provide that such policies or
certificates shall not be cancelled or materially changed
without at least 30 days' prior written notice to the Lessee,
and shall carry loss payable endorsements in favor of the
Lessee where applicable. Certified copies of such policies (or
other evidence of coverage reasonably satisfactory to the
Lessee) shall be deposited with the Lessee, together with
appropriate evidence of payment of the premiums therefor; and,
at least 10 days prior to the expiration dates of expiring
policies or certificates, certified copies of renewal or new
policies or certificates (or other evidence of coverage
reasonably satisfactory to the Lessee) shall be deposited with
the Lessee.
In the event the Lessor fails to maintain the insurance
required to be maintained hereunder, the Lessee following ten
('10) days' written notice to Lessor shall have the right to
procure and maintain such insurance and deduct such cost from
the Rent otherwise payable pursuant to Section 4 of this Lease;
provided that if all such Rent has been paid, the Lessor shall,
within ten (10) days of receipt of notice by the Lessee, refund
to the Lessee all such costs incurred by the Lessee, together
with interest at the maximum rate allowable by law accruing
from the expiration of the aforesaid ten (10) day notice period
until the Lessee has been fully reimbursed with interest.
04/02/90
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EXHIBIT F - Page 6 of 20
It is expressly understood -and agreed that the rentals
hereunder are in consideration of the right to, occupy and use
the Leased Premises throughout the entire Term, and, except as
herein provided, it is the responsibility of the Lessor to
provide such right at all times.
In the event of destruction or damage to'the Leased
Premises by an insured casualty or events, where said insurance
meetsthe criteria specified in Section 7 of this Lease, so
that they become wholly or partly unusable, the Lessor shall
rebuild and repair the Leased Premises so that they shall be
restored to use, and this Lease shall remain in full force and
effect.
If the whole of the Leased Premises, or so much thereof as
to render the remainder -unusable for the purposes for which the
same was constructed, shall be taken under the power of eminent
domain then this Lease shall terminate as to only the portion
of the Site so taken. If the remainder is usable for the
Project purposes, then this. Lease shall continue in full force
and effect and shall not be terminated by virtue of such taking
(and the parties waive the benefit of any law to the'
contrary). The Lessor shall be entitled to receive any and all
proceeds of such condemnation award or settlement.
In the event the Lessee subleases or assigns its interest
in this Lease, the Lessee shall take reasonable steps to assure
that liens do not attach to the Property by virtue of the
activities of the Leasee or that any such liens are reasonably
removed.
SECTION 11• Taxes.
It is understood between the parties that that. portion of
the Parking Facility which is dedicated' to public commuter
parking use and leased by the Agency should be exempt from the
imposition of property tax and that therefore such taxes as are
imposed should represent only the value of the commercial use
of the Parking Facility. If it is determined that that portion
of the Parking Facility which is dedicated to public commuter
use is exempt from property tax, then the Lessor agrees to pay
any property taxes assessed on the Leased Premises. If there
is no such exemption the property taxes shall be included as
part of the CAM charges and assessed against the Lessor and the
Lessee according to the CAM charge allocation set out in
Section 5 of this Lease.
04/02/90
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EXHIBIT F - Page 7 of 20
SECTION 12: Ouiet Enjoyment.
The parties hereto mutually covenant and agree that the
Lessee, by keeping and performing the covenants and agreements
herein contained, shall at'all times during the term, peaceably
and. quietly, have, hold and enjoy the Leased Premises.
SECTION 13: Lessor Covenants.
In addition to those undertakings and covenants elsewhere
set forth in this Lease by the Lessor, the Lessor covenants
that Lessor shall cause the completion of the Public
Improvements by the time established therefor in the Agreement.
The Lessee shall have the right to purchase the Parking
Facility at its sole option. This option may not be exercised
before two (2) years after the certificate of completion has
been issued on the entire project (Phase I and Phase II), and
must be exercised no later than seven (7) years after the
issuance of the certificate of completion for the entire
project.
The Lessee and the Lessor shall begin negotiations to set
the price at which the Lessee may purchase the Parking Facility
and the lease back costs within thirty (30) days of the
execution of the First Amendment to the owner participation
agreement dated October 17, 1989. At the time of negotiations,
the Lessee and the Lessor shall agree in writing on all factors
which shall be used to establish a value for the structure
including, but not limited to, the following criteria:
1. The original construction cost of the Parking
Facility including hard -costs, soft costs and offsites.
2. The original cost of the land on which the
Parking Facility is located.
3. Payments the Lessor has made to the date of the
purchase for financing fees, principal and interest on the
portion of his financing dealing with the Parking Facility.
9. Compensation paid to date by the Lessee to the
Lessor for the lease of the structure.
5. Such other factors as the Lessee or the Lessor
may deem appropriate in establishing a value for the structure.
Unless otherwise modified by agreement
and the Lessor, upon purchasing the Parking
and the Lessor shall ensure the following:
09/02/90
8599n/2299/3Q
between the Lessee
Facility the Lessee
EXHIBIT F - Page 8 of 20
1. Adequate parking shall be maintained for the
tenants of Franciscan Plaza and the Provincial Building
according to conditions set forth in the Joint Parking
Agreement.
2. The Lessor shall continue to: (i) receive its
share of the compensation collected by the Lessee for the paid
parking and (ii) pay its share of the CAM charges.
In the event that the parties are unable to come to an
agreement by October 1, 1990 as to the option purchase price
this option shall be terminable by either party. In the event
that this section is founCto be unenforceable or invalid such
unenforcibility or invalidity shall not effect any other
provision of this Agreement which shall remain in full force
and effect.
This Lease is made in the State of California under the
Congtitution and laws of such State and is to be so construed.
SECTION 16: Notices.
All notices, statements, demands, requests, consents,
approvals, authorizations', offers, agreements, appointments or
designations hereunder by either party to the other shall be. in
writing and shall be sufficiently given and served upon the
other party, if sent by United States registered mail, return
receipt requested, postage prepaid and addressed as follows:
Lessor - Franciscan Plaza Investment Group
c/o Paul L. Farber and Associates
U3/78/ ckq C're4si GLr C 303
---==^-- ---��� ^----- SA*,-/gNiritQisTiLf✓0 h,.'if7S
Lessee - San Juan Capistrano Community Redevelopment Agency
Attention: Executive Director
32400 Paseo Adelanto
San Juan Capistrano, California 92675
SECTION 17: Default by Lessee: Termination.
If the Lessee shall fail to pay any rental payable
hereunder within sixty (60) days from the date such rental is
payable; then the Lessee shall be deemed to be in default
hereunder.
If the Lessee should, after notice of default, fail to
commence to remedy any default with all reasonable dispatch and
shall thereafter fail to diligently prosecute the cure to
completion, the Lessor after sixty (60) days' notice may
04/02/90
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-9 -
EXHIBIT F - Page 9 of 20
re-enter, cure such breach and charge the Lessee therefor with
interest thereof at the maximum rate permitted by law, and
eject all parties in possession thereof therefrom.
SECTION 18: Assianment.
The rights of the Lessee herein shall be for the benefit of
the Lessee or a successor in interest to the Lessee or assignee
which attorns to the Lessor. The Lessor shall accept such
successor or assignee as a tenant herbunder on terms identical
to those set forth In this Lease. Unless the Lessor expressly
agrees to the contrary, the Lessee shall remain liable as a
principal for payment of the Rent hereunder notwithstanding
such assignment.
This Lease may be simultaneously executed in any number of
counterparts, each of which when so executed shall be deemed to
be an original, but all together shall constitute but one and
the same Lease, and it is also understood and agreed that
separate counterparts of this Lease may be separately executed
by the Lessor and the Lessee, all with the same full force and
effect as though the same counterpart had been executed
simultaneously by both the Lessor and the Lessee.
SECTION 20: Validity.
If 'any one or more of the terms, provisions, promises,
covenants or conditions of this Lease shall to any.extent be
adjudged invalid, unenforceable, void or voidable for any
reason whatsoever by a court of competent jurisdiction, each
and all of the remaining terms, provisions, promises, covenants
and conditions of this Lease shall not be affected thereby and
shall be valid and enforceable to the fullest extent permitted
by law.
SECTION 21: Headings.
Any headings preceding the texts of the several Sections
hereof shall be solely for convenience of reference and shall
not constitute a part of this Lease, nor shall they affect its
meaning, construction or effect.
The Lessee covenants by and for itself, its successors and
assigns, and all persons claiming under or through it, and this
Lease is made and accepted upon and subject to the following
conditions: That there shall be no discrimination against or
segregation of any person or group of persons, on account of
race, color, creed, religion, sex, marital status, national
09/02/90
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EXHIBIT F - Page 10 of 20
origin or ancestry, in the leasing, subleasing, transferring,
use, occupancy, tenure or enjoyment of the premises herein
leased nor shall the Lessee itself, or any person claiming
under or. through it, establish or permit any such practice or
practices of discrimination or segregation with reference 'to
the selection, location, number, use or occupancy, of tenants,
lessees, sublessees, subtenants or vendees in the premises
herein leased.
Lessee agrees to subordinate its rights under this Lease
only to deeds of trust in favor of lenders providing
construction or take out financing in connection with the
Project, where said lender has executed a non -disturbance and
attornment agreement in accordance with §306 of the Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Lease to be executed and attested by their proper officers -
thereunto duly authorized, and their official seals to be
hereto affixed, all as of the day and year first above written.
ATTEST:
S c t
(SEAL)
SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY
By �•
hairman, Ken11riess
"LESSEE"
FRANCISCAN PLAZA INVESTMENT GROUP
By:
iesid Paul Farber
"LESSOR"
09/02/90
8599n/2299/30• -11-
EXHIBIT F - Page 11 of 20
CORPORATE ACKNOWLEDGMENT
cearnne California It
County of
SS.
Orange
OFFICIAL SEAL
CHERYL A. JOHNSON
o NOTARY PUBLIC • CALIFORNIA
0IME DMM
My own espiref OEI; 33. 1993
1
NO. M
On this the 14th day of Jun 19- before me,
Cheryl A Johnson
the undersigned Notary Public, personally appeared
Jeffrey C. Parker
:9 personally known to me
O proved tome on the basis of satisfactory evidence
to be the person(a) who executed the within instruments
Agency Secretary oronbeh%floilhyr��Wilontherein
named, and acknowledged to me that therL561poraiflon executed It.
WITNESS my hand and official seal.
Notary's Sig un)
W1nONAL NOTARYASSOCIAnoN • 23012 VNtM she • V.O.Ow 4025 • W,gdMd N13AG 9135"62S
EXHIBIT F - Page 12 of 20
STATE OF CALIFORNIA
ss.
COUNTY OF ORANGE
On this 1990, before me, a Notary
Public, State of California, duly commissioned and sworn,
personally appeared /= i Tff �•FRI�sr a
.lti=
known to me to be the Chairman xM
• , of the SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY, a public corporation, that executed the
within instrument -on behalf of said public corporation therein
named, and acknowledged to me that such public corporation
executed the within instrument pursuant to a resolution of the
Members of said public corporation.
WITNESS my hand and official seal.
(SEAL) OFFICIAL SEAL
EILEEN FEGTE'
m NOTARY PUBLIC - CALIFORNIA
ORANGE COUNTY
fAy mmm, exPkn APR 15, Y^3
STATE OF CALIFORNIA
ss.
COUNTY OF ORANGE
On 'LA ne- ? 1 1990, before me, the
undersigned,Notary Public in and for said State, personally
appeared =1- rAn gg -
personally known to me or proved to me on the basis of
satisfactory eviden o b t e�,person who executed the within
instrument as the Pzaw fM FRANCISCAN PLAZA INVESTMENT
GROUP, a California limited partnership, that executed the
within instrument and acknowledged -to me that such partnership
executed the within instrument pursuant to its bylaws or a
resolution of its Board of Directors.
(SEAL)
WITNESS my hand and official seal.
OFFICIAL SEAL
CI'.ERYL A. JOHN 0
;1
fIOTAR•! PUBLIC • CALIFORR'A
0.WIGE C..'Urf
fey mmm. upirq DEC 13, 77 7
04/02/90 1
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EXHIBIT F - Page 13 of 20
EXHIBIT "A"
") LEGAL DESCRIPTION OF THE SITE.
(121-150-20)
LOT 40 OF TRACT NO. 103 AS SHOWN ON A MAP RECORDED IN BOOK 11,
PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF
ORANGE COUNTY, CALIFORNIA.
EXCEPTING THEREFROM THE WESTERLY 13.00 FEET OF SAID LOT, BEING
A STRIP OF LAND 13.00 FEET IN WIDTH LYING EASTERLY AND
CONTIGUOUS TO THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND
SANTA FE RAILWAY COMPANY, AS DESCRIBED IN DEED RECORDED
FEBRUARY 27, 1936 IN BOOK 807 PAGE 286 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION THEREOF DESCRIBED AS
FOLLOWS:
COMMENCING AT A POINT IN THE NORTHERLY LINE OF LOT 42 OF SAID
TRACT NO. 103, SAID POINT BEING SOUTH .84 DEGREES 07 MINUTES 30
SECONDS WEST 202.60 FEET FROM THE NORTHEAST CORNER OF SAID LOT
42; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135.66
FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42, SAID
POINT BEING SOUTH 84 DEGREES 28 MINUTES 00 SECONDS WEST 201.44
FEET FROM THE SOUTHEAST CORNER OF SAID LOT 42; THENCE
CONTINUING SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84.18•
FEET TO A POINT IN THE SOUTHERLY LINE OF LOT 41 OF SAID TRACT
NO. 103; THENCE SOUTH •84 DEGREES 27 MINUTES WEST ALONG SAID
SOUTHERLY LINE 15.00 FEET TO THE TRUE POINT OF BEGINNING;
THENCE ALONG SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 9.50
FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT
SOUTHERLY 9.50 FEET FROM THE NORTHERLY LINE OF SAID LOT 40;
THENCE WESTERLY PARALLEL WITH AND DISTANT SOUTHERLY 9.50 FEET
FROM SAID NORTHERLY LINE TO A POINT IN THE WESTERLY LINE OF
SAID LOT 40; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO THE
NORTHWEST CORNER OF SAID LOT 40; THENCE EASTERLY ALONG THE .
NORTHERLY LINE OF SAID LOT 40 TO THE TRUE POINT OF BEGINNING.
(121-150-21)
LOT 43, AS SHOWN ON A LICENSED SURVEYOR'S MAP, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 2,
PAGES 31 TO 38 INCLUSIVE, RECORD OF SURVEYS, -IN THE OFFICE OF
THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM THE WESTERLY 12 FEET.
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EXHIBIT "A"
Page 1 of 3
EXHIBIT F -Page 14 of 20
(121-150-22)
THAT PORTION OF LOT 40 OF TRACT NO. 103, IN THE CITY OF SAN
JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF'
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT IN THE'NORTHERLY LINE OF LOT 42 OF SAID
TRACT NO. 103, SAID POINT BEING SOUTH 84 DEGREES 07 MINUTES 30
SECONDS WEST 202.60 FEET FROM THE NORTHEAST CORNER OF SAID LOT
42; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135.66
FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42, SAID
POINT BEING SOUTH 84 DEGREES 28 MINUTES 00 SECONDS WEST 201.44
FEET FROM THE SOUTHEAST CORNER OF SAID LOT 42; THENCE
CONTINUING SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84.18
FEET TO A POINT IN THE SOUTHERLY LINE OF LOT 41 OF SAID TRACT
103; THENCE SOUTH 84 DEGREES 27 MINUTES WEST ALONG SAID
SOUTHERLY LINE 15.00 FEET TO THE TRUE POINT OF BEGINNING;
THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 9.50 FEET TO
A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY
9.50 FEET FROM THE NORTHERLY LINE OF SAID LOT 40; THENCE LINE
TO A POINT IN THE WESTERLY LINE OF SAID LOT 40'; THENCE
NORTHERLY ALONG SAID WESTERLY LINE TO THE NORTHWEST CORNER OF
SAID LOT 40; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID
LOT 40 TO THE -TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THE WESTERLY 13.00 FEET OF SAID LOT, BEING
A STRIP'OF LAND 13.00 FEET IN WIDTH LYING EASTERLY OF AND
CONTIGUOUS TO THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND
SANTA FE RAILWAY COMPANY, AS DESCRIBED IN DEED RECORDED
FEBRUARY 27, 1936 IN BOOK '807 PAGE 286 OF OFFICIAL RECORDS.
(121-150-09)
LOT 42 OF TRACT NO. 103, IN THE CITY OF SAN JUAN CAPISTRANO,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN
BOOK 11, PAGES 29 TO 30 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE
OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PROPERTY:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 42, SAID
CORNER BEING ON THE WESTERLY PROPERTY LINE OF THE CALIFORNIA
STATE HIGHWAY: THENCE NORTH 5 DEGREES 23 MINUTES 00 SECONDS
WEST ALONG THE ABOVE MENTIONED PROPERTY LINE 136.88 FEET TO AN
INTERSECTION WITH THE SOUTHERLY LINE OF GARDEN STREET: THENCE
SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST ALONG THE SOUTHERLY
LINE OF GARDEN STREET 202.60 FEET TO A POINT: THENCE SOUTH 5
DEGREES 52 MINUTES 30 SECONDS EAST 135.66 FEET TO A POINT ON
THE SOUTHERLY LINE OF THE ABOVE MENTIONED LOT 42; THENCE NORTH
84 DEGREES 28 MINUTES 00 SECONDS EAST ALONG THE SOUTHERLY LINE
OF LOT 42, 201:44 FEET TO THE POINT OF BEGINNING.
04/02/90 EXHIBIT "A"
8599n/2299/30 Page 2 of 3
EXHIBIT F - Page 15 of 20
(121-150-12)
'THAT PORTION OF LOT 41 OF TRACT NO. 103, IN THE CITY OF SAN
JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF
MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA,
DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 41; RUNNING
THENCE NORTH 9 DEGREES 40 MINUTES WEST 84.41 FEET ALONG THE
WEST LINE OF SAID LOT 41 TO THE NORTHWEST CORNER THEREOF:
THENCE NORTH 84 DEGREES 28 MINUTES EAST 41.13 FEET ALONG THE.
NORTHERLY LINE OF SAID LOT'41 TO A POINT WHICH IS LOCATED
201.44 FEET SOUTH 84 DEGREES 28 MINUTES WEST FROM THE SOUTHEAST
CORNER OF LOT 42 OF SAID TRACT NO. 103; THENCE SOUTH 5 DEGREES
52 MINUTES 30 SECONDS EAST 84.18 FEET TO A POINT IN THE
SOUTHERLY LINE OF SAID LOT 41; THENCE SOUTH 84 DEGREES 27
MINUTES WEST 35.55 FEET ALONG THE SOUTHERLY LINE OF SAID LOT 41
TO THE POINT OF BEGINNING.
(121-150-10)
THAT PORTION OF LOT 42 OF TRACT NO. 103, IN THE CITY OF SAN
JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BACK 11, PAGES 29 TO 33, INCLUSIVE OF
MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS
FOLLOWS:
BEGINNING TO THE MOST EASTERLY CORNER OF SAID LOT, SAID CORNER
BEING IN THE WESTERLY PROPERTY LINE OF THE CALIFORNIA STATE
HIGHWAY; THENCE NORTH 5 DEGREES 23 MINUTES 00 SECONDS WEST
ALONG THE ABOVE MENTIONED PROPERTY LINE 136.88 FEET TO AN
INTERSECTION WITH THE SOUTHERLY LINE OF GARDEN STREET; THENCE
SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST, ALONG THE
SOUTHERLY LINE OF GARDEN STREET, 202.60 FEET TO A POINT;tTHENCE
SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135.66 FEET TO A
POINT IN THE SOUTHERLY LINE OF SAID LOT 42; THENCE NORTH 84
DEGREES 28 MINUTES 00 SECONDS EAST, ALONG THE SOUTHERLY LINE OF
SAID LOT, 201.44 FEET TO THE POINT OF BEGINNING.
E�;L
04/02/90 EXHIBIT "A"
8599n/2299/30 Page 3 of 3
EXHIBIT F - Page 16 of 20
RESOLUTION NO. CRA 90-8-7-1
ACCEPTING LEASE - FRANCISCAN PLAZA PARKING STRUCTURE
A RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY, ACCEPTING THE LEASE
AGREEMENT BETWEEN THE FRANCISCAN PLAZA INVESTMENT
GROUP AS LESSOR AND THE SAN JUAN CAPISTRANO
COMMUNITY REDEVELOPMENT AGENCY AS LESSEE FOR
SPACES IN THE FRANCISCAN PLAZA PARKING STRUCTURE
WHEREAS, In Decemberj%9871 the Community Redevelopment Agency of the
City of San Juan Capistrano entered into an Owner Participation Agreement with the
Franciscan Plaza Investment Group which called for the execution of a Lease
Agreement. In October, 1989, the San Juan Capistrano Community Redevelopment
Agency amended this Owner Participation Agreement which modified the Lease
Agreement; and, .
WHEREAS, this modified Lease Agreement was executed on June 5, 1990; and,
WHEREAS, the County Recorder's Office has requested that a Resolution of
Acceptance of this Lease Agreement be executed under their interpretation of
Government Code Section 27 28 1.
NOW, THEREFORE, BE IT RESOLVED, that the San Juan Capistrano
Community Redevelopment Agency, City of San Juan Capistrano, California, does'hereby
accept the Lease Agreement executed by the San Juan Capistrano _ Community
Redevelopment Agency and Franciscan Plaza Investment Group on June 5, 1990.
PASSED, APPROVED, AND .ADOPTED this 7th day
of August , 1990.
ATTEST:
,rGla". i
KENNFTH E. FRIESS, CHAIRMAN
-I- EXHIBIT F - Page 17 of 20
STATE OF CALIFORNIA )
COUNTY OF ORANGE
CITY OF SAN JUAN CAPISTRANO )
a
11 CHERYL JOHNSON, City- Clerk of the City of San Juan Capistrano,
Califomia, DO HEREBY CERTIFY that the attached is a true and correct copy of
Resolution No. CRA 90-8-7-1, adopted by the San Juan Capistrano Community
Redevelopment Agency at a regular meeting thereof held on the 7th day of August, 1990.
(SEAL)
Cheryl Johnso, CI Clerk
San Juan Capistranot California
DATED: THIS 9th day of August, 1990.
EXHIBIT F - Page 18 of 20
STATE OF CALIFORNIA I
COUNTY
IITY OF SAN JUAN CAPISTRANO ) ss
1, JEFFREY C. PARKER,_ Acting Secretary of the San Juan Capistrano
Community Redevelopment Agency, DO HEREBY CERTIFY that the foregoing is a true
and correct copy of Resolution No. CRA 90-8-7-1 adopted by the Board of
Directors of the San Juan Capistrano Community Redevelopment Agency, at a regular
meeting thereof held on the .7th day of Auggst , 1990, by the following
vote:
AYES:
NOES:
ABSENT:
(SEAL)
Directors Schwartze, Hausdorfer, Buchheim, Bland
and Chairman Friess
None
None
0
-2-
EXHIBIT F - Page 19 of 20
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss. AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO )
JEFFREY C. PARKER, being first duly sworn, deposes and says:
That he is the duly appointed and qualified Acting Secretary of the San Juan
Capistrano Community Redevelopment Agencyi
That in compliance with State laws of the State of California and in further
compliance with City Resolution No. CRA 83-12-20-I and on the 9th day
of August , 1990, she caused to be posted:
RESOLUTION NO. CRA 90-8-7-1 , being:
ACCEPTING LEASE - FRANCISCAN PLAZA'PARKING STRUCTURE
A RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY
REDEVELOPMENT AGENCY, ACCEPTING THE LEASE
AGREEMENT BETWEEN THE FRANCISCAN PLAZA INVESTMENT
GROUP AS LESSOR AND THE SAN JUAN CAPISTRANO
COMMUNITY REDEVELOPMENT AGENCY AS LESSEE FOR
SPACES IN THE FRANCISCAN PLAZA PARKING STRUCTURE
in three (3) public places in the City of San Juan Capistrano, to wit: City Hall; Old Fire
Station Recreation Complex; Orange County Public Library.
/' , ! - / a, —
SETPARKER, Acting Agency Secretary
S J n C pistrano Community
Redevelopment Agency
-3- EXHIBIT F - Page 20 of 20
9 •
a. Use and Duration. Each easements granted herein
shall be used by the Parties as an appurtenance to and for the
benefit of their respective Parcels, and solely for the purpose of
developing and operating the Parcels pursuant to a common plan of
beneficial use. Any such easement shall terminate with respect to
the benefitted and burdened Parcels after the termination of this
Agreement under Section 11.2 if the use thereof for the benefit of
a Parcel is abandoned for a continuous period of two (2) years.
b. Procedure to Establish Termination. Abandonment and
termination of an easement hereunder shall be presumed for the
benefit of any Parcel burdened by such easement upon compliance
with the following procedures by the then record owner of such
Parcel. Such record owner shall record a notice and affidavit in
the Office of the Recorder of the County of Orange which shall
contain the following:
(i) Name. The name of the record owner of the burdened
Parcel.
(ii) Statement of Abandonment. A statement concerning
the basis upon which the easement is deemed abandoned.
(iii) Identification of Owner. An identification of
the record owner of the Parcel benefited by the abandoned easement
and the identification of the record owner, if any,of any leasehold
interest in such Parcel.
(iv) Parcel Description. A description of the Parcel
burdened and the Parcel benefited by the easement.
The foregoing notice and affidavit shall be duly verified
and acknowledged and contain a certificate verifying that a copy
thereof has been served upon the then record owner of the Parcel
benefits by such easement that the then record owner, if any, of
the leasehold interest in such benefited Parcel by mailing such
notice, certified mail, return receipt requested, postage prepaid
to the address given for mailing tax statements in the office of
the Tax Collector of orange County. The notice and affidavit
under subsection b. shall create a conclusive presumption binding
upon all persons owning any interest in either the Parcel benefited
or the Parcel burdened by the easement claimed to be abandoned,
unless the record owner of the fee interest in the Parcel benefited
by such easement or any record owner of any leasehold interest in
such Parcel records, in the Office of the Recorder of Orange
County, and concurrently serves on the then record owner of the
Parcel burdened by such easement, a notice and affidavit setting
forth the following information:
EXHIBIT D - Page 7 of 23
0 0
(i) Name. The name of the persons giving the notice
and affidavit, identifying the basis upon which such person claims
to have the requisite record interest in the benefitted Parcel;
(ii) Basis of Non -Abandonment. A statement setting
forth the facts constituting the claim for non -abandonment of the
easement;
(iii) Identification of Owner. An identification of the
record owner of the Parcel burdened by the easement; and
(iv) Parcel Description. A description of the Parcel
benefited and the Parcel burdened by the easement.
Such notice and affidavit shall be duly verified and
,acknowledged .and contain a certificate verifying that a copy
thereof has been served upon the then record owner of the Parcel
burdened by the easement by mailing such notice, certified mail,
return receipt requested, postage prepaid, to the Address given for
mailing tax statements in the office of the Tax Collector of Orange
County.
d. Relocations of Utilities. Upon termination of this
Agreement, the rights of the then owners of the Parcels with
respect to the easements for utilities under Section 2.2(c) shall
be governed by the provisions of Section 2.5, to relocate any
utilities serving any other Parcel, provided that such relocation
is done at the sole cost and expense of the owner accomplishing
such relocation and, provided, further, that such relocation does
not interfere with or increase the cost of the provision of utility
services to the parcel benefited by such utilities.
2.5 Utility Easements. The Parties shall cooperate with one
another and permit installation of any necessary utility and
service lines, sanitary or storm water drainage sewers, water
lines, telephone conduits or lines, and all other public utilities
jointly and mutually to serve the Parcels and Building Areas. Any
such utilities shall not be located under any building located on
any Building Area, shall be constructed as is reasonably possible
so as not to interfere unduly with the overall development and
operation of each Parcel by the Parties hereto, and shall otherwise
conform to the applicable requirements of this Article 2. All such
utilities shall be separately metered or separately assessed for
the respective use of the Building Areas located on each Parcel.
2.6 Maintenance of Utility Facilities. All separate utility
facilities installed by any. Party pursuant to the easements granted
under this Article 2 designed to serve exclusively the Building
EXHIBIT D - Page 8 of 23
0 0
Area on such Party's Parcel shall be installed, maintained,
repaired and removed.by such Party without cost or expense to the
other Party; provided, however, that if the other Party connects
into or utilizes such separate utility facilities pursuant to any
easement granted under this Article 2, then each Party shall be
responsible for the installation, maintenance, repair and removal
in connection with its utilization of such separate utility
facilities.
2.7 Indemnification by Parties. Each Party shall indemnify,
defend and hold the other Party harmless of and from any and all
loss, cost, damage, injury or expense (including without limitation
reasonable attorneys' fees) arising by reason of injury to or death
of persons, damage to property or claims of lien for work or labor
performed, materials or supplies furnished arising out of or in
connection with use by the indemnifying Party of the easements
granted hereunder or the exercise by such Party of the rights
grantedto it in this Agreement. Any Party may contest any lien
or claim of lien asserted against such Party or its Parcel;
provided, however, 'that such Party shall pay and fully discharge
any such claim of lien within five (5) days after entry of final
judgment adverse to such Party in any action to enforce or
foreclose the same, which judgment shall be deemed final when it
can be enforced by execution or judicial sale and no such judgment
shall be considered final for the purpose hereof during the
pendency of a stay of, execution in connection with an appeal, or
during the time in which an appeal may be taken.
3. MAINTENANCE
3.1 Building Upkeep and Maintenance. Each Party shall,
without cost or expense to the other Party, provide for appropriate
upkeep and maintenance for the exterior of their buildings and
improvements located in the Building Area of each Party's Parcel.
3.2 Maintenance of Common Area. Each party shall, without
cost or expense to the other Party, provide for appropriate upkeep
and maintenance for the Common Area located on such party's parcel.
The Parties' obligations to maintain the Common Area shall include
but not be limited to .the following:
a. Paved Areas. Maintaining all paved surfaces and
curbs of the Common Area in a smooth and evenly covered condition
which maintenance work shall include, without limitation, cleaning,
sweeping, restripping, repainting, repairing and resurfacing of the
Parking Area, and curbs, using surfacing material of a quality
equal or superior to the original surfacing material.
b. Debris and Refuse. Removal of all papers, debris,
EXHIBIT D - Page 9 of 23
0
u
filth, refuse, snow and ice, and sweeping the Common Area to the
extent necessary to keep the Common Area in a first class, clean
and orderly condition; provided, however, that each Party shall
install, ,operate and properly maintain, or cause to be so
installed, operated and maintained, on its Parcel, without cost or
expense to the other Party and so as not to be visible to the,
general public doing business at the Shopping Center, sufficient
trash compactors, or enclosed or lidded trash bins, for use in
connection with storage or all trash, refuse and waste materials
of the Occupants of such Party's Parcel and each Party shall take,
or cause to be taken, all necessary measures to keep the Parcels
free from all debris and rubbish caused by from such facilities.
C. Signals and Markers. Placing, keeping in repair,
replacing and repainting any appropriate directional signs, markers
and lines.
d. Parking Area Lighting. Operating, keeping in repair,
cleaning and replacing when necessary such Common, Area lighting
facilities as may be reasonably required, including all ex erior
lights attached to buildings located on Building Areas which are
intended to illuminate the Common Area.
e.- Landscaped Areas. Cleaning and maintaining all
landscaped areas, including landscaping and planters adjacent to
exterior walls of buildings, repairing automatic sprinkler systems
or water lines in the Common Area, weeding, pruning, fertilizing
and making replacement of shrubs and other landscaping as
necessary.
f. Utilities. Maintaining, cleaning and repairing any
and all common storm drains, utility lines, sewers and other
utility systems and services located in the Common Area which are
necessary for the operation of the Common Area and the Building
Area, and any buildings and improvements therein.
g. Insurance. The maintenance of the following policies
of insurance:
(1) Insurance against loss or damage to the
aboveground portion of the Parking Facility resulting from fire,
earthquake, lightning, vandalism, malicious mischief and such
perils ordinarily defined as "extended coverage" and such other
perils as Agency and Developer may agree should be insured against,
if such insurance is available from reputable insurers. In the
event that either party determines that the earthquake portion of
the insurance required in this Section 3.g.(1) has become
economically unreasonable to obtain, it may request relief from the
other party for this requirement and the other party shall not
unreasonably withhold its permission to modify this section if it
10
EXHIBIT D- Page 10 of 23
0
unreasonably withhold its permission to modify this section if it
too determines that such a requirement has become an economically
unreasonable burden. Such insurance shall be maintained in an
amount not less that the full insurable value of the Parking
Facility subject to a "deductible clause" in the amount of Ten
Thousand Dollars ($10,000.00) and shall contain an inflation guard
endorsement. The term "full insurable value" as used in this
Section shall mean the actual replacement cost "new";
(2) public liability insurance against claims for
bodily injury or death, or damage to property occurring upon, in
or about the Common Area, such insurance to afford protection to
a limit of not less than Two Million Dollars ($2,000,000.00)
combined single limit bodily injury and property damage with not
greater than Ten Thousand Dollars'($10400.00) deductible;
(3) Worker's compensation insurance, if applicable,
inssued by a responsible carrier authorized under the laws of the
State of California to insure employers against liability for
compensation under the Worker's Compensation Insurance and safety
Act now in force in California, or any act hereafter enacted as an
amendment or supplement thereto or in lieu thereof, such worker's
compensation insurance to cover all persons employed in connection
with the Parking Facility and to cover full liability for
compensation under any such act aforesaid,, based upon death or
bodily injury claims made by, for or on behalf of any person
incurring or suffering injury or death during or in connection with
the Parking Facility or ,the business of the Developer and
activities of the Agency with respect to the Parking Facility.
h. City, county, state or federal governmental
impositions placed on or based upon the Common Area'or revenues
derived therefrom.
Notwithstanding the above, Agency shall select a qualified
management company for the maintenance and operation of the Parking
Facility. The Agency shall enter into an agreement with the
selected management company and the cost of those common area
maintenance charges for the Parking Facility as described in (a)
through (h), inclusive, hereinabove together with an administrative
fee equal to fifteen percent (15%) of the common area maintenance
charges shall be allocated between the Agency and Developer in
proportion to the ratio of Commuter parking spaces and spaces used
by the Users and Occupants of the Shopping Center. This ratio
shall be determined with regard to the hours of 6:00 A.M. to 6:00
P.M. Mondays through Fridays. The following equation expresses
this ratio:
11
EXHIBIT D -Pagel 1 of 23
0
Agency's portion (# of Commuter (12 hrs)
of CAM charges Spaces)
Total CAM charges (Total # of (17 hrs)
Spaces)
The number of Commuter parking spaces and the number of parking
spaces allocated to Users and Occupants of the Shopping Center and
the Larsen Parcel shall be determined in accordance with Section
2.1.a. hereinabove. All common area maintenance charges,
including the adminstrative fee, to be allocated between Agency and
Developer shall be paid within forty five•(45) days after billing.
4. RESTRICTIONS ON. BUILDING AREA USE.
In the event Agency makes a good faith determination, subject
to review by Developer, that the Parking Area is insufficient to
meet the demand for parking by Users between the hours of 7 p.m.
to 6 a.m., Agency will so notify Developer and Developer shall have
sixty (60) days within which to designate f by way of notice to
Agency, up to four thousand five hundred' `4,500) square feet of
Building Area with the Franciscan Plaza Project Phases I and II
which. Developer agrees will thereafter not be open to the public
between the hours of 7 p.m. to 6 a.m. Developer, by way of notice,
to Agency, may at any time change the Building Areas so restricted
provided that at all times at least four thousand five hundred
(4,500) square feet of Building Area in the Project shall be so
restricted. ,
5. RIGHTS ON DEFAULT.
5.1 Legal Rights on Default. Each Party shall have the right
to prosecute any proceedings at law or in against the other
Party, or any other person, violating or attempting to violate or
defaulting upon any of the provisions contained in this Agreement,
in order to prevent the violating or attempting to violate or
defaulting upon the provisions of this Agreement and to recover
damages for any such violation or default. The remedies available
under this Section 5.1 shall include, by way of illustration but
not limitation, ex parte applications and permanent injunctions
enjoining any such violation or attempted. violation or default, and
actions for specific performance of the Agreement.
6. ESTOPPEL CERTIFICATE.. Any Party may, at any time and from
time to time, in connection with the sale or transfer of the
Party's Parcel, or in connection with the financing or refinancing
of the Party's Parcel by mortgage, deed of trust or sale leaseback
made in good faith and for value, deliver written notice to the
other Party requesting such Party to certify in writing that to the
best knowledge of the certifying Party, the requesting Party is not
12
EXHIBIT D - Page 12 of 23
in default in the performance of its obligations under this
Agreement, or, any and all defaults. The Party receiving such
request shall execute and return such certificate within thirty
(30) days following the receipt thereof. Failure by a Party so to
execute and return such certificate within the specified period
shall be deemed an admission on such Party's part that the Party
requesting the certificate is current and not in this Agreement.
The parties acknowledge that such certificate may be relied upon
by transferees, mortgagees, deed of trust beneficiaries and
leaseback lessors.
7. TRANSFERS OF INTEREST, RIGHTS, POWERS AND OBLIGATIONS.
7.1 Limitations on Parties. in no event shall the rights,
powe=s and obligations conferred upon the Parties hereto pursuant
to this Agreement be at any time transferred or assigned by any of
such Parties except through a transfer of their respective
interests in their respective Parcels or except as specifically set
forth to the contrary in this Subsection 7.1, and then only to the
extent and in the manner hereinafter provided;
a. Rights of Larsen. Subject to Developer's obligations
as contained in the Developer/Larsen Agreement, the Occupants and
Users of the Larsen Parcel (as defined above) shall have the right
to use, without any charge or fee, during the daytime from 8:00
A.M. to 7:00 P.M., the following number of parking spaces:
(i.) The number of parking spaces required by the
City of San Juan Capistrano for the building located this date on
the Larsen Parcel based upon its current square footage; and
(ii.) Such additional parking spaces as may be
needed for up to, but not to exceed, an additional Six Thousand
(6,000) square feet addition to the building on the Larsen Parcel,
provided such additional square footage is for retail or office
type of tenants and does not require more than one (1) parking
space per 250 square feet of tenant space or a maximum of twenty-
four (24) parking spaces.
Notwithstanding, Larsen is not a Party (as defined hereinabove) to
this Agreement and Larsen shall have no rights, interests or
liabilities under this Agreement except the parking rights
conferred in this Subsection a.
b. Transfer of Entire Interest. In the event of'the
transfer, conveyance or termination of the whole of the interest
of the Party in its Parcel (or any leasehold interest in a Parcel)
• without retaining any beneficial interest therein other than as a
beneficiary under the terms of a deed of trust or mortgage or
13
EXHIBIT D - Page 13 of 23
0
without simultaneously acquiring a new interest by way of
leasehold, life estate, or any other similar interest,. than the
rights and powers conferred upon and the obligations under this
Agreement of the transferring Party shall be transferred and
assigned with its interest.
C. Retention of Interest. In the event that (i) the
whole of the interest of any party in its Parcel is transferred or
conveyed, but a new interest is created in the transferring Party
simultaneously with the conveyance of its previous interest, by way
of leasehold, life estate, or any other similar interest, or (ii)
the transferring Party shall convey its interest in its Parcel, or
a portion thereof, by deed of trust, mortgage or other security
instrument as security for the obligation or indebtedness of such
Party, then none of the rights and powers conferred upon or
obligations under this Agreement of the transferring Party shall
be transferred or assigned with the transfer or conveyance of its
interest, but all of the rights and powers conferred upon and
obligations under this Agreement of the transferring Party shall
remain in such Party as long as such Party retains, under (i)
above, the new interest in and to its Parcel (other than as
beneficiary under the terms of a deed or trust or mortgage), or so
long as such Party remains under (ii) above, the beneficial owner
of its Parcel. Upon the termination'of the new interest created
in the transferring Party as specified in this Subsection c., the
rights and powers conferred upon, or the obligations of such Party
shall vest in accordance with Subsection b. or d. hereof, whichever
is applicable, as if the new interest created in such Party had
never existed, subject only to the provisions of Article 11 of this
Agreement.
d. Multiple Ownership. In the event that any Party
shall transfer or convey its interest in its Parcel, or any portion
of its Parcel or interest in its Parcel, in such manner as to vest
ownership of the Parcel or interest therein in more than one
person, then the persons owning all of such interest in such Parcel
shall be jointly considered a single Party and such persons
involved in the transaction creating the multiple interest shall
designate one of their number to act on behalf of all such Persons
in the performance of the provisions of thio Agreement. Any such
designation shall be in writing, duly executed, verified and
acknowledged by each such person, shall be served upon the other
Party in accordance with the notice provision of this Agreement,
shall contain a certificate that a copy thereof has been'so served,
and shall'be recorded in the office of the Recorder of the County
of Orange. In the absence of such written designation, the acts
of the Party whose interest is so divided with respect to the
performance of the, provisions of .this Agreement shall be binding
upon all of the persons owning any interest in such Party's Parcel,
14
EXHIBIT D - Page 14 of 23
0 J0
until such time as the written designation is properly served and
recorded as provided .by this subsection d. The exercise or
performance of any rights, powers or obligations of a Party under
this Agreement by the person designated to represent such Party
shall be binding upon all persons having an interest or right in
such parcel and/or upon all persons having an interest in such
Party. So long as such designation remains in effect, all persons
having an interest or right in the Parcel and±or all persons having
an interest in such Party shall act only through such persons
designated hereunder and the other Parties shall have the right to
deal exclusively with and rely solely upon the act or omissions of
such person in the performance or provision of this Agreement. Any
person designated hereunder may be removed by the persons so
designating, in accordance with any procedure agreed to between
them, provided that written notice of such removal and designation
of, a new person to act as the Party on behalf of all such persons
under this Agreement is given and made in the manner specified in.
this Subsection d., and in absence of any such written notice and
designation, the previous designation shall continue in effect and
the acts of the person previously designated with respect to the
performance of the provisions of this Agreement shall be binding
upon all such persons until such time as the written notice and
designation is properly served as provided by this Subsection d.
Any person designated pursuant to the 'provisions of this
Subsection d., shall be the agent of each of its principals, hereby
irrevocably appointed for such purpose, upon whom service of any
process, writ, summons, order or other mandate of any nature of any
court- in any action, suit or proceeding arising out of this
Agreement may made, and service upon such designated person shall
constitute due and proper service of any such matters is also
mailed to such principals at the principals' last addresses known
to the sender. Notwithstanding anything to the contrary herein
contained, the designation of a person to act on behalf of persons
as a Party under this Subsection d. shall not for any purpose
relieve any such persons from the obligations or liabilities
created by or arising from this Agreement.
8. RELEASE UPON SALE OF INTEREST.
8.1 Sale by any Party. Upon the sale or transfer -by any
Party of its entire right, title and interest in its Parcel, that
party shall be released from the obligations of this Agreement
(other than those obligations arising from any default by such
Party in the performance of any provision of this Agreement prior
to such sale or transfer, including payment of any amounts which
may then be due and owing under this Agreement); provided that such
Party shall have given notice to the other Party of sale, transfer,
conveyance or assignment of all of its right, title and interest
in its parcel concurrently with the filing for record of the
15
EXHIBIT D - Page 15 of 23
.0 - •
9. EFFECT ON BREACH UPON PURCHASERS AND MORTGAGEES.
9.1 No Termination. The breach of this Agreement shall not
eliminate any Party or person to cancel, rescind or otherwise
terminate its obligations hereunder.
9.2 Mortgagee Protection. This Agreement, and the rights,
privileges, covenants, agreements and easements hereunder with
respect to each Party and Parcel, shall be superior and senior to
any lien placed upon any Parcel, including the lien of any mortgage
or deed of trust. Notwithstanding the foregoing, no breach hereof
shall defeat, render invalid, diminish or impair the lien of any
mortgage or deed of trust made in 'good faith and for value, but the
covenants and restrictions, easements and conditions herein
contained shall be binding upon and effective against any owner
(including any mortgagee or beneficiary under a deed of trust) of
any Parcel, or any portion thereof, who acquires title thereto by
foreclosure, trustee's sale, deed in lieu of foreclosure or
otherwise.
10. COVENANTS AND RECORDATION.
10.1' Covenants Run with the Land. All of the applicable
provisions, agreements, rights, powers, covenants, conditions and
obligations contained in this Agreement shall be binding upon and
insure to the benefit of the Parties hereto, their respective
heirs, successors (by merger, consolidation or otherwise) and
assigns, devisees, administrators, representatives, lessees and all
other persons acquiring any Parcel, or any part thereof of any
interest therein whether by operation of law or in any manner
whatsoever, unless and until modified as herein provided. All of
the provisions of this Agreement shall be covenants running with
the land .pursuant to the applicable law, including but not limited
to Section 1468 of the Civil Code of the State of California. It
is expressly acknowledged that each covenant to do refrain from
doing some act on each Parcel hereunder (i) is for the benefit'of
each other Parcel and is a burden upon each other Parcel, (ii) runs
with each Parcel and (iii) shall benefit or be binding upon each
successive owner during its ownership of each Parcel, or any
portion thereof, and each person having any interest therein
derived in any manner through any owner of any Parcel, or any
portion thereof.
11. RECORDATION. This Agreement shall become effective and
binding upon the Parties and their respective successors in
interest in accordance with the provisions of this Article 10 upon
recordation of this Agreement in the office of the County Recorder
of Orange County.
irl
EXHIBIT D - Page 16 of 23
12. MISCELLANEOUS.
12.1 Negation of Partnership. None of the terms or
provisions of this Agreement shall be deemed to create a
partnership between or among the Parties in their respective
businesses or otherwise, nor shall it cause them to be considered
joint venturers or members of any joint enterprise.
12.2 Termination and Amendment. Except as otherwise
specified in this Agreement, this Agreement may be cancelled,
changed, modified or amended in whole or in part only by written
and recorded instrument executed by all of the Parties hereto and
by all of the record owners of all of each Parcel. in the event that
any of such record owners are not then Parties hereto.
Notwithstanding any other provisions of this Agreement to the
contrary, all the provisions hereof shall terminate upon the 55th
anniversary date of the recordation hereof.
12.3 Approvals. Unless otherwise herein provided, whenever
approval or consent is required of any 'Party, it shall not be
unreasonably withheld. Unless provision is made for a specific
time period, approval or consent shall be deemed given in ninety
(90) days of the receipt of the written request for approval or
consent, and if a Party shall neither approve nor disapprove within
such ninety (90) day period, or other time period as may be
specified in this Agreement for approval or consent, that Party
shall then be deemed to have given its approval or consent. If a
Party shall disapprove, the reasons therefor shall be stated in
reasonable detail in writing. The consent or approval by a party
to or of any act or request by any other Party shall not be deemed
to waive or render unnecessary consent or approval to or any
similar or subsequent acts or requests.
12.4 Public Dedication. Developer and Agency covenant that
the Parking Facility shall be dedicated to public purposes
provided, however, that "public purposes" shall be defined as "open
and available to the public on an equal basis". All parking,
except for parking by Users and Occupants, shall be paid for by the
users of the Parking Facility. In the event, however, that neither
the Agency nor its successors in interest hold any interest (either
leasehold or fee) in the Parking Facility, all paid parking
proceeds shall belong to Developer.
Nothing herein contained shall be deemed to be a gift or dedication
of any portion of .the Shopping Center, or of any other parcel, or
portion thereof, to the general public, for the general public or
for any public use or purpose whatsoever, it being the intention
and understanding of the Parties that this Agreement- shall be
strictly limited to and for the purposes herein expressed and that
17
EXHIBIT D - Page 17 of 23
0
A
all property described herein, except for the Parking Facility, is
and shall continue to be private property.
12.5 Excusable Delays. Whenever performance is required of
any Party hereunder, that Party shall use all due diligence to
perform and take all necessary measures in good faith to perform;
provided, however, that if delays are caused by civil commotion,
riots, strikes, picketing, or other labor disputes, unavailability
of labor or materials or damage to work in progress by reason of
fire or other casualty or cause beyond the reasonable control of
a Party (financial inability, imprudent management or negligence
excepted), then the time for performance as herein specified shall
be appropriately extended by the amount of delay.
12.6 Severability. Invalidation of any of the provisions
contained in this Agreement, or of the application thereof to any
person by judgment or court order shall in no way affect any of the
other provisions hereof or the application thereof to any other
person and the same shall remain in full force'and effect, unless
enforcement of this Agreement as so invalidated would be
unreasonable or grossly inequitable under all the circumstances or
would frustrate the purposes of this Agreement.
12.7 Notices. Any notice to any Party shall be in'writing
and given by delivering the same to such Party in person or by
sending the same by registered or certified mail, return receipt
requested, with postage, prepaid to the Party's mailing address.
The respective mailing addresses of the Parties hereto are, until
changed as hereinafter provided, the following:
Agency: SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attention: Executive Director
and, in the event of a claim against the Agency, with a copy to:
SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attention: Agency Secretary
Developer: Franciscan Plaza Investment Group
31831 Camino Capistrano
San Juan Capistrano, CA 92675
Attention: Paul Farber
18
EXHIBIT D - Page 18 of 23
12.8 Change of Address. Any Party may change its mailing
address at any time by giving written notice of such change to the
other Party in the manner provided herein at least ten (10) days
prior to the date such change is effected. All notices under this
Agreement shall be deemed given, received, made or communicated on
the date personal delivery is effected or, if mailed, on the
delivery date or attempted delivery date shown on the .return
receipt.
12.9 Entire Agreement. This written Agreement contains all
the representations and the entire agreement between the Parties
hereto with respect to the subject matter hereof. Any prior
correspondence, memoranda or agreements are superseded in total by
this Agreement. The provisions of this Agreement shall be
construed as a whole according to their common meaning and not
strictly for or against any Party. -
12.10 Captions. The captions preceding the text of each
Article, Section and Subsection hereof are included only for
convenience, of reference and shall be disregarded in the
construction and interpretation of this Agreement.
12.11 References. All references herein to a given Article,
Section or Subsection refer to the Article, Section or Subsection
of this Agreement,.
12.12 Minimization of Damages. In all situations arising
out of this Agreement, all Parties shall attempt to avoid and
minimize the damages resulting from the conduct of any other Party.
Each Party shall take all necessary measures to effectuate the
provisions of this Agreement.
12.13 Litigation Expenses. If any Party shall bring an
action against the other Party by reason of the breach or alleged
violation of any covenant, term or obligation hereof, or for the
enforcement of any provision hereof or otherwise arising out of
this Agreement, the prevailing Party in such suit shall be entitled
to its costs of suit and reasonable attorneys' fees, which shall
be payable whether or not such action is prosecuted to judgment.
"Prevailing Party" within the meaning of this Section 12.13 shall
include, without limitation, a Party who dismisses an action for
recovery hereunder in exchange for payment of the sums allegedly
due, performance of covenants allegedly breached or consideration
substantially equal to the relief sought in the action.
i&1
EXHIBIT D - Page 19 of 23
0
12.14 Signature' Pages. For convenience, the signatures of
each of the Parties to this Agreement may be executed and
acknowledged on separate pages which when attached to this
Agreement shall constitute this as one complete Agreement.
12.15 Time. Time is of the essence of this Agreement and
each and every provision hereof.
IN WITNESS WHEREOF, the Parties hereto have executed and
acknowledged this Agreement as of the day and year first above
written.
December 5 1989 , 19 SAN JUAN CAPISTRANO COMMUNITY
REDEVEL PMENT AGENCY
By 2 '��
Kenneth E. FriessChairman
ATTEST:
J/ .' s.� ;ice✓✓�/ ®' ./
APPROVED AS TO FORM:
t+uraal=g, Yocuu, tai ULI a naui.u,
Special Counsel to the Agency
Agency Counsel
"AGENCY"
FR777--A,
ZA INVESTMENT GROUP
"Developer"
By Paul Farber, General Partner
20
EXHIBIT D - Page 20 of 23
STATE OF CALIFORNIA
COUNTY OF Orange
�� OFFICIAL SEAL
Of FEN FEGTE'
m NOTAnY PUBLI: - CAUFOn NIA
ORS::q COUNTY
Aly eemm. Oxpires APR 15, 1991
n-'ca�c
ACNh0WLEMMENT-CenaNl U LONIM Yarmershlp-WOUIRS Form MA -Rev. 5 52
2'1952WOLCOnS.I141. W146018-21
On this day of �.(/��n�A� , in the year 19_,
before me, the undersigned, a Notary Public in and for said State, personally appeared
_ Paul Farhrr
personally known to me
for proved to me on the basis of satisfactory evidence) to be the person who executed the
within Instrument on behalf of the I ; m; r eri Partnership named therein, and acknow-
lodged to me that the limited Partnership executed it.
WITNESS my hand and official seal.
Notary Public in and r said State.
CORPORATE ACK•
!//J!/IJJ!✓IJJJIJJ✓!!!!JJ!%/!✓!1 .-. :.^/:/::/!_/JJJlI!/!/!.l!_/_'/!!!/./J/- �!!!!J!!!'IJJJIJ/!!/./'/ J/1-`1
Il`l ,i
•19 before me,
County of Or
1i
`l
1
1the undersignedappeared 1
Kenneth E. Friess
❑ personally known to me
=0my,
,��❑ proved tome on the basis of satisfactory evidence
L SEA]aNA
to be the persona) who executed the within Instrument a4
FEGTE' m m cal-CAUFChairman or on behalf of th�cbrpVr on therein
COuN. fnamed, and acknowledged to me that the corporation executed it,
es nPR WITNESS my hand and official seal.
a
Notary' Ig nature
2 NATIONAL NOTARY ASSOCIATION • 23012 VenWm BW. • P.O.B0x4525 • Woodland Hill;CA9136E
CORPORATE ACKNOWLEDGMENT No. 2o2
State of California On this the J--2—day of�/.,�0- >.�a-�. 1969'f�o, before me,
SS.
County of Orange
the undersigned Notary Public, personally appeared
Cheryl A Johnson ,
❑ personally known tome
OFFICIA L. SEAL❑ proved tome on the basis of satisfactory evidence
EILEEN FEGTE' CALIFOR
�
NOTA2y P115L:C A to be the person(() who executed the within Instrument as,
Ir -NIN mUnl 1 a1
,- oar:^r. COura:Y Il Djgnuty AAgency Secretary oron behalf of thehmunilitle�n (herein
My con -1. er;.i: es APR 15_ 1^71 r, named, and acknowledged to me that the corporation executed it.
WITNESS myhan�and officialseal.
Notary's Signature
NATIONAL NOTARY ASSOCIATION • 23012 Vonw,S6W,IPHO.Lefo..C6fSdr f(dahanelllnACA 913654825