HomeMy WebLinkAboutNB 4 STEVENS SQUARE 02-01-82k
DATE:
Jan. 29, 1982
NEW
NO. 4
2-1-82
Inter-Corn
TO:
FROM:
SUBJECT:
HONORABLE MAYOR AND CITY COUNCIL
BILL HUSTON, CITY MANAGER
STEVENS SQUARE D~VELOPMENT-AGREEMENTS FOR PARKING STRUCTURE
AND MALL AND PLAZA
RECOMMENDATION:
That following its review of the agreements, the City Council authorize the
Mayor to execute the agreements.
It is also recommended that the City Council authorize preparation of an
agreement between the City and Redevelopment Agency which provides for a
loan of approximately $300,000 - $350,000 from the City to the Agency to be
used for financing of the Agency's share of the cost of constructing the
parking structure.
BACKGROUND:
The Redevelopment Agency has previously approved its participation in the
construction of a parking structure and mall and plaza for the Stevens
Square office project. The Agency authorized an appropriation of $600,000
for the parking structure and $50,000 for the mall and plaza. The City
Attorney's office has preprared the attached agreements which set forth the
terms and conditions for City/Agency participation in the project. The
City Attorney will make a presentation at the February 1, 1982 meeting
concerning the agreements.
DISCUSSION:
The extent of the City/Agency involvement in the mall and plaza is a fixed
contribution of $50,000 towards its construction and abandonment of the
street right-of-way. One issue to be resolved by the February 1, 1982
meeting is the extent, if any, to which the City/Agency will participate in
maintenance of the plaza.
The agreements are structured such that the City/Agency will lease the
upper deck of the parking structure (less 24 spaces assigned to Stevens
Square) with an option to purchae its interest in the parking structure.
An estimate of the cost of constructing the structure will be available at
Monday's meeting.
It is staff's recommendation that the City/Agency immediately exercise its
option to purchase its interest in the structure. The Redevelopment Agency
originally appropriated $250,000 for parking facilities in the 1981-82
budget. Staff is recommending that the balance, approximately $300,000 to
$350,000, be obtained through a loan from the General Fund. This approach
has two advantages.
1. An Agency debt is created which is necessary in order to continue to
receive tax increment income.
2. It is less costly than obtaining financing through the developer or a
bank.
The loan, the terms of which would be reviewed by the City Council at a
later date, would provic~ for a three-five year payback at 12% interest.
The monies would be appropriated from the General Fund balances.
PARKING STR~ [FASE
1. Parties. 5his Agr~-~ne, nt is entered into as of this
day of , 1982, between STEVENS SQUARE, a C~lifornia limited
partnership (hereinafter referred to as "Lessor") and TUSTIN COMMUNITY
· REDEV~OR~ENT AGENCY, a statutory entity within the City of Tustin, to
wit a California Co~u~anity Redevelopment Agency (hereinafter referred to
as "Lessee").
2. Premises.
(a) Subject to the terms herein Lessor ~oes hereby lease to
Lessee and Lessee hereby leases from Lessor those certain portions of a
parking structure (hereinafter referred to as '~ramises"), said Pr~m~ses
being agreed, for the purposes of this Lease, to have an area of approx-
imately square feet and being situated on a portion of the
upper level of that certain parking structure (hereinafter referred to
as the "Parking Structure") to be constructed on real property located
on "~' Strcct near Main Strcct', Tustin, California. Said Premises and
real property are described with more particularity in Exhibits "A" and
B, respectively, attached hereto and inco.rporated herein by this
reference. Lessor shall erect, or cause to be erected, said Parking
Structure substantially in accordance with plans and specifications now
on file with the City .of Tustin, which plans and specifications are
'attached hereto as Exhibit "C" and incorporated herein by this reference·
(b) Lessor shall give Lessee notice of the reasonably
contemplated date of completion, occupancy and use of the parking
structure in writing at least ninety (90) days in advance of the comple-
tion of t~e Parking Structure, and the rental hereunder sba11 c~,~nce
to accrue on the date so fixed in such notice from Lessor, if in fact,
the Premises are ready for use and occupancy on said date. Immediately
upon receipt of such notice, subject to the terms herein, Lessee shall
subject to the terms herein, have the right to commence the installation
of any al'~erations, additions or improvements and make such other
preparations as it may deem necessary or desirable so that the Leased
Premises will be available for the use of Lessee from the date when the
rental shall be payable hereunder. If Lessee takes p?ssession of the
Leased Premises prior to the date specified herein, Lessee will pay rent
in full from the date of such taking of possession.
(c) Said Lease is subject to the terms, covenants and
conditions heEein set forth and Lesscc covenants as a material part of
the consideration for this Lease to keep and perform each and all of
said terms, Covenants and conditions by it to be kept and performed and
that this Lease is made upon the condition of said performance.
(d) The parties hereto, and each of them, understand and
agree that parking spaces on the lower level of the Parking Structure
and a portion of the parking space on the upper level of the Parking
Structure, to wit twenty-four (24) spaces, together with c~J~on non-
exclusive rights of access for ingress thereto and egress therefrom (as
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described with more particularity in Exhibit "U' attached hereto and
incorporated herein by this reference) shall be retained by Lessor for
the benefit and use of Lessor's, or its successor's:in interest, tenants,
authorized representatives, invitees, clients and customers. Notwith-
standing the above, the parties hereto agree that Lessee and its offi-
cers, employees, agents and invitccs have the exclusive right to use the
Premises, together with the non-exclusive rights of ingress thereto and
egress therefrom.
(e) Concurrent with the execution hereof, Lessor and Lessee
have entered into an Option Agreement whereby Lessor~ as Optioaor, has
granted to Lessee, as Optionee~ the exclusive right to purchase a
certain' condomini%ml interest in the Parking Structure coupled with the
exclusive right to the use of the Premises, more particularly designated
as Unit No. 2 in the Declaration of Covenants, Conditions and Restric-
tions for Stevens Square Parking Structure Condomini~ Association,
which docmnent is attached to the Option Agr~-~ment attached hereto as
Exhibit "~' and incorporated herein by this reference.
(f) Lessee acknowledges that Lessor will assign and transfer
both the'. Parking Structure in' which the Pr~mises are located and the
real property on which the parking Structure is located to Stevens
Square Association, a non-profit mutual benefit corporation. Lessor
agrees, represents and warrants that the transfer of the Parking Struc-
ture to Stevens Square Association. will be subject to each, every and
all of Lessee's rights hereunder and further subject to Lessee's rights
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to acquire the condominimm interest described in ParaErapb (e) above.
Lessor aErees that concurrently or prior to Lessee's acquisition of said
condominit~ interest the Covenants, Conditions and Restrictions des-
cribed in paragraph (e) above will be recorded in the Office of the
County Recorder of Orange County, C~lifornia. As a signator hereto~
Stevens Square Association hereby expressly s~rees to assume all the
obiigations of Lessor hereunder upon transfer of the Parking Structure
as described above, and to do all thin~s, to take all action, and to
execute a~d deliver ali doctmlents and instruments which are reasonably
required, necessary or convenient to carry out, implement and give full
force and effect to the term~ of this Lease A~rc~--ment.
3. Term. Ihe te~'m of this Lease shall covalence as of the date
of execution of this Lease and te~a£.~nate thirty (30) years thereafter.
4. Possession.
(a) If Lessor, for any reason whatsoever, c~nnot deliver
possession of .the said Pr~m%ises to Lessee on the date noticed to Lessee
pursuant to Section 9.(b) above, this Lease shall not be void or void-
able, nor shall Lessor be liable to Lessee for any loss or d~mage
resulting therefrom, nor shall the expiration date of the above term be
in any way extended, but in that event, all rent shall be abated during
the period bet~.cc.n the commencement of said term and the time when
Lessor delivers possession and all rights and remedies of both parties
hereunder shall be suspended until such tim~ as Lessor. can deliver
possession of the Premises to Lessee.
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(b) In the event that Lessor shall permit Lessee to occupy
the Premises Prior to the commencement date of rental accrual, such
occupancy shall be subject to all the provisions of ;this Lease.
5. Basic Rent. Lessee agrees to pay to Lessor as rental,
without prior notice or dem2nd, for the Premises, the sram of
and __/lOOths Dollars
($_,__. ) on or before the first day of the first full calendar month
following delivery of possession of the Premises to Lessee as herein
provided and a like sum on or before the first day of each and every
successive calendar month thereafter during the term hereof. Rent
for any. period during the term hereof which is for less than one (1)
month Shall be a prorated portion of the monthly installment herein,
based upon. a thirty (30) day month. Said rental shall be paid to
Lessor, Wihout deduction or offset in lawful money of the United States
of America, which shall be legal tender at the time of payment at the
business office of Lessor, or to such other person or at such other
place as Lessor may from time to time designate in writing.
6. Operating Expense Adjustments.
(a) For the purposes of this Section, the following terms
are defined as follows:
"Base Year":
this Lease.
"Comparison Year":
the Base Year.
Tae first full calendar year during the term of
Each calendar year of the term after
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"Direct Expenses": Ail reasonable, customary and necessary
direct costs of operation, maintenance and repair, paid by the Lessor,
as determined by standard accounting practices, which shall include the
following costs by way of illustration, but not be limited to: real
property taxes and assessments (whether assessed against the Lessor or
Lessee), water and sewer charEes, if any, insurance premi~ns, utilities,
janitorial services, landscaping services~ labor costs incurred in tbe
management and operation of the l~rking Structure, supplies, mate-
rials, equipment, and tools. ("Direct Expenses" shall not include
depreciation on the Parking Structure of which the Premises are a part
or equipment therein, loan payments, executive salaries, or real estate
brokers' commissions) ~ Notwithstanding the foregoing both parties
understand and agree that the cost of constructing or operating any
control or access devices or, as to Lessee, any alterations, additions
or improvements made by Lessee on the Premises pursuant to Section 9(b),
shall be excluded in the. determination of the operating expense adjust-
ment.
(b) If the Direct Expenses paid or incurred by the Lessor
for the Comparison Year on account of the operation, maintenance or
repair of the Parking Structure of which the Premises are a part are in
excess of the Direct Expenses paid or incurred for the Base Year, tben
the Lessee shall pay such a portion of the excess as is equal to the sum
obtained by multiplying the amount of the excess, by .3838. Lessor
shall endeavor to give to Lessee on or before the first day of March of
each year following the respective (~omparison Year a statement of the
increase in rent payable by Lessee hereunder, but failure by Lessor to
give such statement by said date shall not constitute a waiver by Lessor
of its right to require an increase in rent. Upon receipt of the
statement for the first Comparison Year, Lessee shall pay in full the
total smount of increase due for the first Comparison Year, and in
addition for the then current year, the amount of any such increase
shall be used as an estimate for said current year and this amount shall
be divided into twelve (12) eq,,,1 monthly installments and Lessee shall
pay to Lessor, concurrently with the regular monthly rent payment next
due following the receipt of such statement, an amount equal to one (1)
monthly installment multiplied by the number of months from January in
the calendar year in which said statement is submitted to the month of
such payment, both months inclusive. Subsequent installments shall be
payable .concurrently with the regular .monthly rent payments for the
balance of that calendar year and shall continue until the next Com-
parison Year's statement is rendered. If the next or any succeeding
Comparison Year results in a greater increase in Direct Expenses, then
upon receipt of a statement from Lessor, Lessee shall pay a lump sum
equal to such total increase in' Direct Expenses over the Base Year, less
the total of the monthly installments of estimated increases paid in the
previous calendar year for which comparison is then being made to the
Base Year; and the estimated monthly installments to be paid for the
next year, 'following said Comparison Year, shall be adjusted to reflect
such increase. If in-any Comparison Year the Lessee's share of Direct
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Expenses is less than the preceding year, than upon receipt of Lessor's
statement any overpayment made by Lessc~ on the monthly installment
basis provided above shall be credited towards the next monthly rent
falling due and the estimated monthly installments of Direct Expenses to
be paid shall be adjusted to reflect such lower Direct Expenses for the
most recent Comparison Year.
(c) Even though the term has expired and Lessee has vacated
the P~emises, when the final determination is made of Lessee's sha~e of
Direct Ex~nses for the year in which this Lease terminates, Lessee
shall immediately pay to Lessor any increases due over the estimated
expenses paid and conversely any overpayment made in the event said
expenses decrease shall be Jmf~diatel¥ rebated by Lessor to Lessee.
(d) Notwithstanding anything contained in this Section
6, the' rental payment by Lessee shall inf.no event be less than the rent
specified in Section 5 hereinabove.
7. Use'~
(a) LesscC and any and all persons it generally or specifi-
cally authorizes shall use the P~emises for the parking of automo-
biles and/or passenger trucks. Lessor agrees that its use of any
portion of the Parking Structure will be similarly limited to the
parking of automobiles and/or passenger trucks. Neither Lessor or
Lessee will use or permit the Premises to be used for any other purpose
without the prior written consent oS-the other party.
(b) Lessee shall not do or permit anything to be done
in or about the Premises nor bring or keep anything therein ~4uich will
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in any way increase the existing rate of or affect any fire or other
insurance upon the Parking Structure or ~uy of its contents or cause
cancellation of any insurance polic~; covering said ;Parking Structure or
a~¥ p~rt thereof or any of its contents. Lessee shall not do or permit
anything to be done in or about the Pranises or Parking Structure which
will in any way obstruct or interfere with the rights of other tenants,
customers, guests, invitees, licensees or other users of the Parking
Structure or injure or annoy them or use or allow the Premises or
Parking Structure to be used for any improper, ia'noral, or objectionable
purpose, nor shall Lessee cause, maintain or permit any nuisance in, on
or about the Premises or Parking Structure. Lessee shall not commit or
suffer to be c~,itted any waste in or upon the Premises or Parking
Structure. 'Lessor shall likewise be restricted 2nd bound in the use of
the parking Structure.
8. Compliance With Law.
(a) Neitber Lessee nor Lessor shall use the Premises or
permit anything to be done in or about the Premises or Parking Structure
which will in any way conflict with any law, statute, ordinance or
government rule or regulation 'now in force or which may hereafter be
enacted or promulgated. Lessee shall, at its sole cost and expense,
promptly comply with all laws, statutes, ordinances and government
rules, regulations or requirements now in force or ~4uich may hereafter
be in force,
underwriters
' relating to,
and with the requirements of any:board of fire insurance
or other- similar bodies now or hereafter constituted,
or affecting the condition, use or occupancy of the Pre-
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mises. ~he judgment of ~ny court of competent jurisdiction or the
admission of Lessee in any. action against Lessee, whether Lessor be a
p~rty thereto or not, that Lessee has violated any law, statute, ordi-
nance or government rule, regulation or requirement, shall be conclusive
of that fact as between the Lessor and Lessee. Lessor shall likewise be
restricted and bound.
(b) Lessee shall not be obligated to comply with any law
that requires alterations, maintenance, or restoration to the Premises
or l~arkin~ Structure unless the alterations, n~iutenance, or restoration
are required as a result of Lessee's particular and specific use of the
Premises or Parking Structure at the time. Lessor shall make any
alterations, maintenance, or restoration to the Pramises required by
such laws that Lessee is not obligated to make.
9. Alterations~ Additions and Improvements.
(a) Except as noted to the contrary in Section 9(b) below,
Lessee shall :not m~ke or suffer to be made any other alterations,
additions or improvements to the Premises or any part thereof, without
the prior written consent of Lessor, which consent shall not be un-
reasonably withheld.
(b) Lessee may, without securing the prior written consent
of Lessor make any alterations, additions or improvements on the
Premises necessary to install parking meters, control or access devices,
booths or other structures used for the collection of parking fees,
specialized parking stalls, lighting or other items directly relating to
the parking of vehicles on the Premises so long as the construction,
installation and existence of said itsrs shall not interfere with the
righ%s of Lessor, its invitees, guests, representatives, clients and
customers to use the remaining portion of the Parking Structure.
(c) In the event Lessee makes any alterations, additions or
improvements pur~_,-nt to either Sections 9(a) or 9(b) above, the same
shall be made by Lessee at Lessee's sole cost and expense and upon the
expiration or sooner termination of the reign hereof (except termination
· purs~nt to Lesscc's exercise of its Option to purchase a tenancy ia
common interest in the Parking Structure by reason of Exhibit "D"
herein) Lessee shall, upon written demand by Lessor at Lessee's sole
cost and expense, forthwith and with all due diligence remove any such
alterations~ additions or improvements designated by Lessor to be
removed and repair any-dsma~e to the Premises or Parking Structure
caused bY such removal. All such alterations, additions and improve-
ments not so designated to be removed by Lessor pursuant to this
Section 9(c) and which r~main on the Pre~lises after the termination of
this Lease, shall become a part Of the realty and belong to the Lessor
and shall be surrendered with the Premises.
(d) Neither Lessor nor anyone acting on behalf of Lessor,
nor any successor in interest to Lessor, shall do anything or construct
or maintain anything to interfere with, impair or diminish Lessee's full
rights of use or occupancy of the Pramises and access for ingress and
egress thereto.
10. Repairs.
(a) By taking possession of the Premises, Lessee shall be
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deemed to have accepted the Premises as being in good condition and
repair. ~essee shall at Lessee's sole cost and expense, keep any
alterations, additions and improvements made by Lessee pursuant to
Section 9 above in good condition and repair.
(b) Notwithstanding the provisions of Section 10(a) herein-
above, Lessor shall repair and maintain in good condition the Pr~nises
an~d Parking Structure unless such m~_ ~utenance and/or repairs are caused
in part or in whole by the act, neglect, fault or omission of any duty
by the LeSsee, its agents, servants, employccs or invitees, in which
case Lessee shall pay to Lessor the reasonable cost of such.maintenance
and repairs. Lessor shall not be liable for any failure to make any
such repairs or to p?rform any m~_ ~ntenance unless such failure shall
persist for thirty (30) days after written notice of the need of
such repairs or m_-_~ntenance is §iven to Lessor by Lessee, unless the
nature of the problem presents a b~rd or emergency and Lessee so
notifies Less~.r, in which case Lessor shall iu~,~diately make any such
repairs or perform any such maintenance. There shall be no abatement of
rent and no liability of Lessor by reason of any injury to or inter-
ference with Lessee's use of the Pramises arising from the making of any
repairs, alterations or improvements in or to any portion of the Struc-
ture or the Premises, in or to ~ny portion of the Premises unless Lessee
is prevented from using the p~rking spaces located on the Premises by
reason of ~said interference. The rent during the-period, of the inter-
ference shall be abated by 1/81 of the total otherwise due for every
parking space the use of which is lost because of such interference.
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11. Liens. Lessee shall keep the Premises and the property
in which the Premises are situated frcc~ from any liens arising out of
any work performed, materials furbished or obliCations incurred by
Lessee. Lessor may require, at Lessor's sole option, that Lessee shall
provide to Lessor, at Lessee's sole cost and expense, a lien and comple-
tion bond in an amount equal to one and one-half (1-1/2) times any and
all estimated cost of any improvements, additions, or alterations in the
Premises, to insure Lessor against any liability for mechanic's liens
and to insure completion of the work.
12. Assignment.
(a) Lessee shall not either voluntarily or by operation of
law, assign or transfer this Lease or any interest therein, or any right
or privilege appurtenant thereto, (the employees, agents, servants and
invitees,'of the Lessee and the 'partnership, corporation or association
which is the successor entity or successor in interest of the Lesscc
excepted) without the prior written consent of Lessor first had and
obtained, which consent shall not ~be unreasonably withheld so long as
the financial status, ability and condition of the proposed assignee are
of a natUre sufficient to m~ct and satisfy the obligations of Lessee
herein. Lessee shall fUrnish all financial information regarding the
proposed assignee, or transferee reasonably requested by Lessor in-
cluding, without limitation, certified financial statements and recent
federal income tax retUrns. A consent to one 'assignment or trans-
fer.by any other person shall not be deemed to be a consent to any
'subsequent assignment or transfer, by another person. Any such assign-
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ment or transfer, without such consent shall be void, and shall, at the
option of the Lessor, constitute a default under this Lease. Notwith-
standing the above, Lessee shall not either voluntarily or by operation
of law, mortgage, pledge, hypothecate or enc~nher this Lease or any
interest therein without the prior written consent of Lessor first had
and obtained, which consent ,~y be withheld by Lessor for any reason
whatsoever. In the event of any ~-~signment or transfer approved by
Lessor and as a condition thereof, Lessee shall deliver to Lessor an
executed ~ocument whereby the assignee or transferee acknowledges
acceptance of all of the terms and conditions of this Lease Agrccment.
(b) Notwithstanding the preceding Section 12(a), Lessee
shall have the right., without securing Lessor's prior consent, to
transfer and assign its right, title and interest in and to this Lease
to any municipai entity which has been designated by an appropriate
governmental entity as the successor in interest to Lessc¢.
13. Hold Harmless.
(a) (1) Lessee shall indemnify and hold harmless Lessor
against and from any and all ~claims arising from Lessee's use of the
Premises or from any activity, work, or other thing done, peni,~tted or
suffered by the Lessc~ in or about the Parking Structure, and shall
further inde~nnify and hold harmless Lessor against and from any and all
claims arising from any breach or default in the performance of any
obligation on Lessee's part to be performed under the. terms of this
Lease, or arising from any act or negligence of the Lessee, or~ any
official, agent, employee, guest, or invitee of Lessee, and from all and
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against all costs, attorney's fees, expenses and liabilities incurred in
or about any such claim or any action or proceeding brought thereon,
and, in any case, should an action or procccding be brought a~ainst
Lessor by reason of any such cls~m, Lessee upon notice from Lessor shall
defend the same at Lessee's expense by counsel reasonably satisfactory
to Lessor. A party's obligation under ~this paragraph to indemnify and
hold the other party harmless shall be limited to the s%un that excccds
the amount of insurance proceeds, if any, received by the party being
indemnified.
(2) Lessor shall indemnify and hold harmless Lessee
aga/nst and from any and all cla/ms arising from Lessor's use of the
Parking' Structure or from any activity, work, or other thing done,
· permitted or suffered by the Lessor in or about the l>arking Structure,
and shalI further indemnify and hold harmless Lessee against and from
any and all claims arising from any breach or default in the performance
of any obligation on Lessor's part to be performed under the terms of
this Lease, or arising from any act or negligence of the Lessor, or any
official, s4~eut, employee, guest, or invitee of Lessor, and from all and
aga/nst all costs, attorney's f~cs, expenses and liabilities incurred in
or about any such claim or any action or proceeding brought thereon,
and, in any case, should an action or proceeding be brought against
Lessee by reason of any such claim, Lessor upon notice from Lessee shall
defend the same at Lessor's expense by-counsel reasonably satisfactory
to Lessee. A party's obligation under this paragraph to indemnify and
hold the other party harmless shall be limited to the s~ml that exceeds
the amount of insurance procccds, if any, received by the party being
indemnified.
(b) (1) Lessor or its a~ents shall not be liable for a~y
dsmage to property entrusted to the ~ployees, agents or representatives
of the Parking Structure, if any, nor for any injury~ loss or damage to
persons or property, including but not limited to, injury, loss or
ds~ ~e to persons or property resulting from theft, vandalism, inten-
tional or negligent acts of any third parties, fire, explosion, falling
plaster, steam, gas, electricity~ water or rain which may leak from any
part of the Parking Structure or from the pipes, applicances or plumbing
works therein or from the roof~ street or subsurface or from shy other
place resulting from dsmpness or any other cause whatsoever~ unless
caused by or due to the negligence of Lessor, its agents, servants or
employees. Lessor or its a~ents shall not be liable for loss of busi-
ness by Lessee, nor shall Lessor be liable for any latent or patent
defect in the ~emises or in the Parking Structure. Notwithstanding the
above, Lessee shall, give prompt notice to Lessor in cs.se of any injury
to, loss or damage to persons or property in the Premises or in the
Parking Structure or of defects therein or in the fixtures or equiunent.
(2) Lessee or its agents shall not be liable for any
damage to property entrusted to the employees, ageGts or representatives
of the Lessee, if any, nor for any injury, loss or damage to persons or
property, including but not limited to, injury, loss or damage to
persons or property resulting from theft, vandalism, intentional or
negligent acts of any third parties, ~ire, explosion, falling plaster,
steam, g_~, electricity, w~ter or rs.in which may leak frc~ any part of
the Parking Structure or from the pipes, appl~cances or plumbing
works therein or from the roof, street or subsurface or from any other
place resulting from dampness or any other cause whatsoever, unless
caused by or due to the negligence of Lessee, its agents, servants or
employees. Notwithstanding the above, Lessor shall give prompt notice
to Lessee in case of any injury to, loss or damage to persons or pro-
perry in the Premises or in the P~rking Structure or of defects therein
or in the fixtures or equipment.
14. Liability Insurance. Lessor shall, at Lessor's expense,
obtain 'and kccp in force during the texm of this Lease a policy Of
comprehensive public liability and personal property insurance in-
suring Lessor and Lessee against any liability arising out of the
ownership, use, occupancy or m~ntenacce of the P~rking Structure with a
single combined liability limit of not les~ than O~e Million Dollars
($1,000,000.00) and which specifi.c.~lly lists the Lessee as an additional
named insured on said policy. Lessor may carry said insurance under a
blanket policy, providing, however, said insurance by Lessor shall have
a Lessee's protective liability endorsement attached thereto. Lessor
shall maintain fire and extended coverage insurance on the P~rking
Structure, including the Premises, in an amount equ~l to ninety percent
(90~) of the full insurable value of the P~rking Structure. If Lessor
shall fail to procure and m~intain said insurance, Lessee may, but shall
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not be required to, procure and mainta/n same, but at the expense of
Lessor. No policy shall be cancellable or subject to reduction of
coverage except after ten (10) days' prior written notice to Lessee.
15. Services and Utilities.
(a) Provided that Lessee is not in default hereunder, and
subject to the plans and specifications of the Parking Structure as more
fully set forth in Exhibit '~" herein, Lessor agrees to furnish to the
Parking Structure and adjacent property as described in Exhibit "~'
hereto ali the following utilities: electricity, water, janitJrial
service, regular maintenance and upkeep ~-d landscape maintenance.
Lessor shall also maintain and keep lighted the comnon stairs, common
entries and rest rooms, if any, in the Parking Structure of which the
Premises are a part. Lessor shall not be liable for, and Lessee shall
'not be entitled to, any reduction of rental by reason of Lessor's
failure to furnish any of the foregoing when such failure is caused by
accident, breakage, repairs, strikes, lockouts or other labor distur-
bances or labor disputes of any character, or by any other cause,
similar or dissimilar, beyond the.reasonable control of Lessor.
16. Rules and Regulations. Lessee shall faithfully observe
and comply with any reasonable rules and regulations that Lessor my
from time to time promulgate. Lessor reserves the right from time to
time to make all reasonable modifications to said rules. The additions
and modifications to those rules shall be binding upon Lessee upoQ
delivery of a copy of them to Lessee.
17. Holding Over. If Lessee remains in possession of the
premises or any pa~t thereof after the expiration of the term hereof,
with the express written consent oi Lessor, such occupancy shall be a
tenancy from year to year at a rental in the amount of the last annual
rental, plus all other char§es payable hereunder, ,nd upon all the terms
hereof applicable to a year to year tenancy.
18. E~try by Lessor. LeSSor reserves and shall at any and all
times have the right to enter the Premises, inspect the same, supply
janitorial service and any other service to be provided by Lessor to
Lessee hereunder, to post notices of non-responsibility, and to alter,
improve or repair the Premises and any portion of the Parking Structure
of which the Premises are a part that Lessor may deem necessary an_d mag
\
for that purpose erect scaffolding and other necessary structures where
reasonably required by the character of the work to be performed, always
providing that the entrance to the Praises shall not be blocked there-
by, and further prOViding that the parking business of LeSSee shall not
be interfered with unreasonably.'. Any entry to the Premises by Lessor
shall not under any circ%unstances be construed or deemed to be a force-
able or 'unlawful entry intO, 'or a detainer of, the Premises, or an
eviction of Lesscc from the Premises or any portion thereof.
19. Reconstruction.
(a) In the event the Premises or the Parking Structure of
which the Premises are-a part are. dam~_ged by any perils, Lessor agr~-~cs
-19-
to forthwith repair the same~ and this Lease shall re~tu in full force
and effect, except that Lessee shall be entitled to a proportionate
reduction of the rent ~hile such repairs are being ~de, such propor-
tionate reduction to be based upon the extent to which the n~king of
such repairs shall materially ~aterfere with the business carried on by
the Lessee on the Premises. If the damage is due to the fauIt or
neglect of Lessee or its employees, there shall be no abatement of
rent.
'(b) In the event the Pr~nises or the Parking Structure of
which the PrognOses are a part are damaged than the per±Is covered by
fire and extended coverage insurance, then Lessor shall within a reason-
able t~e thereafter'forthw~th repair the sa~e, provided the extent of
the destruction is less tb~'n five (59) percent ef the then full replace-
ment cost of the ParkAng Structure of which the Pr~ses are a part. In
the event the destruction of the Praises or the Structure is to an
extent greater than five (59) percent of said full replacement cost,
then Lessor shall have the option~ (1) to repa£r or restore such damage,
th±s Lease continuing in full force and effect, but the rent to be
proportionately reduced as hereinabove in this Section 19; or (2) at any
t~ne within sixty (60) days after-such damage give notice to Lessee
terminating this Lease as of the date specified in such notice, which
date shall be no less than thirty (30) and no more than ninety (90) days
after the giving of"such uotice. In the event of giving such notice,
this Lease shall expire and all interest of the Lessee in the Premises
shall terminate on the date so specified in such notice and the
reduced by a proportioBate amount, ,'based upon the extent, if any, to
which such damage materially interfered with the business carried on by
the Lessee in the Pramises, shall be paid up to the date of said such
termination.
(c) Nothwithstanding anything to the contrary contained in
· this Section 19, Lessor shall not be required to repair any injury or
damage by fire or other cause, or to make any repairs or replacements of
any improvements to the Premises which Lessee installed purs, m~t to
Section 9 above.
(d) Except as noted above ia this Section 19, Lessee shall
not be entitled to any compensation or dama6es fro~ Lessor for loss of
the use .of the Whole or any part of the Prem/ses~.~ Lessee's personal
property or any inconvenience or 8_ouoyance occasioned by such damage,
repair, reconstruction or restoration.
20. Default. The occurrence of any one or more of the follow-
ing events shall constitute a default and breach of this Lease by
Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent
or any other payment required to be made by Lessee hereunder, as and
when due, where such failure shall continue for a period of five (5)
days after written notice thereof by Lessor to Lessee.
(c) The failure by Lessee to observe or perform any of
the covenants, conditions or provisions of this Lease to be observed
or performed by the Lessee, other than described in Section 21(b)
above, where such failure shall continue for a period of thirty (30)
days after written notice thereof by Lessor to Lessee; provided, how-
ever, that if the nature of Lessee's default is such that more than
thirty (SO) days are reasonably required for its cure, then Lessee shall
not be dee~ed to be in default if Lessee commences such cure within said
thirty (SO) day period and thereafter diligently prosecutes such cure to
completion.
9.1. Remedies in Default. In the event of any such material
default or breach by Lessee, Lessor my at any time thereafter, with or
without notice or demand and without limiting Lessor in the exercise of
~ right or remedy which Lessor may have by reason of such default or
bre~ch;
(a) Maintain Lessee's right to possession, in which case
this Lease shall continue in effect whether or not Lessee shall have
abandoned the Premises. In such event Lessor shall be entitled to
enforce all of Lessor's rights and remedies under this Lease, including
the right to recover the rent as it becomes due hereunder.
(b) Pursue any other remedy now or hereafter available to
Lessor under the laws or judicial decisions 'of the State in which the
Premises are located.
22. Eminent Do~ ~n. If any portion of the Parking Structure,
including, but not limited to, the' Premises shal~ be t~ken or appro-
priated by the City of Tustin or any entity or political subdivision
thereof, Lessor shall have the right, at its option, to terminate
this Lease, and Lessor shall be entitled to any and all income, rent,
award, or any interest therein whatsoever which may be paid or made in
· connection with such publ.ic or c~i-public use or purpose, and Lessee
shall have no claim against Lessor for the value of any unexpired term
of this Lease.
23. Offset Statement. Lessee shall, upon not less than ten (10)
days prior written notice .from Lessor, execute, acknowledge and deliver
to Lessor a statement .in writing, (a) certifying that this Lease is
unmodified and in full force and effect' (or ~s raod±fied, stating the
nature of such modification and certifying that this Lease as so mod~
ified, is in full force and effect) and the date to which the rental
and other charges are paid in adVance, if any, and (b) acknowledging
that there are not, to Lessee's knowledge, any uncured defaults on the
part of the Lessor hereunder,'or specifying such defaults if any are
claimed. Any such statement my be relied upon by any prospective
purchaser or encumbrancer of all or any portion of the real property of
which the Pr~raises are a part.
24. Brokers.' Both parties warrant that they had no dealings
-23-
with any real estate broker or agents in connection with the negotiation
of this Lease and they know of no other real estate broker or agent who
is entitled to a c~1f, lssion in connection with this Lease.
25. General Provisions.
(a) Exhibits and Riders. Clauses, exhibits, plats and
riders, if any, s~igned by the Lessor and the Lessee and endorsed on or
affixed to this Lease are incorporated herein by this reference.
(b) Waiver. ~he waiver by either party of any term, cove-
nant or condition herein contained shall not be d¢~-~ to be a waiver of
such term, covenant or condition on any subsequent breach of the same or
any other term, covenant or condition herein contained. ~he subsequent
acceptance of rent hereunder by Lessor shall not be dee~d to be a
waiver of any preceding breach by Lessee of any term, covenant or
condition of this Lease, other than the failure of the Lessee to pay the
particular rental so accepted, regardless of Lessor's knowledge of such
preceding bre~.ch at the time of the acceptance of such rent.
(c) Joint Obligation. If there be more than one lessee
the obligations hereUnder imposed .upon Lessee shall be joint and several.
(d) Notices. All notices and demands which may or are to
be required or permitted to be given by either party to the other
hereunder shall be in writing. Ail notices and demands by either party
hereto to the other party shall be sent by United States ~gkil, postage
prepaid, addressed to the other Party at the address set forth after the
other party's signature to this Lease, or to such other person or place
as the other party may from time to time designate by written notice.
(e) Time. Time is of the essence of this Lease and each and
all of its provisions in which perfo. ~rm~nce is a factor.
(f) Successors and Assigns. Tae covenants and conditions
herein contained~ subject to the provisions as to assi§~nent~ apply to
and bind the heirs~ officers~ elected officials~ amployee~ successors~
executors~ administrators~ subless¢c~ ~ud assigns of the parties hereto
and as a condition to Lessor~s approval of any such assignment~ transfer
or sublease Lesscc shall deliver to Lessor a w~-itten statement from the
proposed assigncc~ tranferee or sublessee wherein said party ack~ow-
ledges and agrees to be bound by all the term~ and conditions of this
Lease.
Cg) Recordation. Either party at its option m2y record this
Lease or 'a short form memorandum hereof ~ith the prior written consent
of the other party.
(h) Quiet Possession. Upon Lessee paying the rent reserved
hereunder and observin§ and perfo.rming all of the covenants~ conditions
and provisions on Lesseets part to be observed and performed hereunder~
Lessee shall have quiet possession of the Premises for the entire term
hereof~ subject to all the provisions of this Lease.
(i) ~te ~har§es. Lessee hereby acknowledges that late
payment by Lessee to Lessor of rent or other sums due hereunder ~ill
cause Lessor .to incur: costs not contemplated by this Lease~ the exact
amount of which will be extremely difficult to ascertain. Such costs
include, but are not limited to, processing and accounting charges,
and late charges which may be imposed upon Lessor. Accordingly, if any
installment of rent or of a sum due from Lessee shall not be received by
Lessor or Lessor's designated agent within ten (10) days after written
notice that said amount is past due, then Lesscc shall pay to Lessor a
la~e charge equal to ten (10%) percent of such overdue amount. Tae
parties hereby agree that such late charges represent a fair and reason-
able estimate of the cost that Lessor w111 incur by reason of the late
payment by Lessee. Acceptance of such late charges by the Lessor shall
in no event constitute a waiver of Lessee's default with respect to such
overdue amount, nor prevent Lessor from exercising any of the other
rights and remedies granted hereunder.
(~) Prior Agreements. Tnls Lease contains all of the
agreements of the parties hereto with respect to any matter covered or
mentioned in'.the Lease, and no prior agreements or understandings
pertaining to any such matters shall be effective for any purpose. No
provision of this Lease may be' amended or added to except by agree-
ment in ~riting signed by the parties hereto or their respective suc-
cessors in interest. Tais Lease shall not be effective or binding on
any party until fully executed by both parties hereto.
(k) Inability to Perform.
the Lessee :hereunder shall not be
Lessor is unable to fulfill
~ais Lease and the obligations of
affected or impaired because the
any of its obligations hereunder or is
delayed in doin§ so, if such inability or delay is caused by reason
of causes beyond the control of Lessor.
(1)
ceedinB brou§bt
Attorneys' Fees. fn the event of. any action or pro-
by either party against the other under this Lease
the prevailing party shall be entitled to recover all costs and expenses
includin§ the fees of its attorneys in such action or proceeding in such
amount as the court my adjud§e reasonable as attorneys' fees.
(m) Sale of PremisesbyLessor. In the event of any sale of
the Parking Structure by the Lessor, Lessor shall be and is hereby
entirely freed and relieved of any liability under any and all of
its covenants and obligations comtained in or derived from this Lease
arising out of any act, occurrence or omission occurring after the
consummation of such'sale; and the purchaser, at such sale or any
subsequent sale of the Parking Structure shall be dc~-med, without any
further agreanent between the parties or their successors in interest or
betwccn the parties and any such purchaser, to have assumed and agrcmfl~~
to carry out any and all of the'covenants and obligations of the Lessor
under this Lease.
(n) Severability. 'In the event that any of the provisions,
or any portion thereof, of this Lease are held to be unenforceable or
invalid by any court of competent jurisdiction, the validity and en-
forceability of the remaining provisions or portions thereof, shall not
be affected thereby.
(o) Cumulative Remedies. No remedy or election hereunder
-27-
shall be d~med exclusive but shall, wherever possible, be cumulative
with all other remedies at law or in equity.
(p) Choice of Law. ~his Lease shall be governed by the
laws of the State of California.
(q) Signs. Lessee shall not place any sign upon the Pre-
mises or Parking Structure without Lessor's prior consent, which consent
s~all not be unreasonably withheld so long as said sign is of a reason-
able size ~ud design mhd is limited to the advertising of the availa-
bility of 'parking on the Premises.
(r) Unless otherwise specifically provided herein, all
notices, demands or other con~nunications given hereunder shall be
in ~riting and shall be decreed to have been delivered as of actual
personal delivery or as of the second business day after mailing by
~nited States registered or certified mil~ return receipt requested,
postage prepaid, addressed as follows:
· If to Lessee, to:
TUSTIN CO~FONITY R~EVELOP~ENT AGENCY
TUstin City Hall
Mzin and Centennial
Tustin, California 92680
ATYENTION: Executive Director
Copy to:
JA~ES G. ROURKE, ESQ.
City Attorney
1055 No. Main Strcct
Suite 1020
'Santa Aha, California 92701
It to 'Lessor, to:
STEVENS SQUARE,
c/o GF~,T.WR DEVELOPMENT COMPANY, INC.
228 West l~n Strc~ct
Tustin, C~lifornia 92680
ATI~TION: Douglas M. GfeIler, President
Copy to:
BALDIKOSKI, KLUI~, & DRAGONETTE
270 Newport Center D~ive
Newport Beach, C~lifornia 92660
AT~E~ION: Thc~r~ H. Baldikoski, Esq.
or such other address or .'to such other person as ,ny party shall desig-
nate to the others for such purpose in the manner hereinabove set
forth.
The parties heret° have executed this Lease at the place and on
the dates specified irarediately adjacent to their respect signatures.
LESSOR: LESSEE:
TUSTIN~ITYREDEV~OPM~r
AGENCY, a statutory entity within
the City of Tustin
By D~ted:
STEVENS SQUARE,
a California Limited Partnership
BY GFELLER DEVELOPMENT COMPANY, INC.,
a California corporation,
As General Partner
By D~ted: '
Douglas M. Czfeller - President
First American Title Insur.~ce and Trus~ Oompany
Escrow No.
OPTION AG~k~T AND ESCROW INSRUCTIONS
THIS AGREEMENT, dated as of the
198_, by and between
and
day of ,
STEVENS SQUARE,
a C~lifornia limited partnership,
herein referred to as "Optionor",
TUSTIN CO~qUNITY REDEV~OP~ENT AGENCY,
a statutory entity within the City of Tustin
to wit, a California Community Redevelop~ent Agency,
herein referred to as "Optionee",
is entered 'into with reference to the recitals set forth in Article 1
below and constitutes (a) an option to purchase-the Property described
below, and (b) further escrow instructions to First American Title
Insurance and Trust Company (herein referred to as "Escrow Agent"), the
consent of which appears at the end of this Agreement.
ARTICLE 1
Recitals
1.1 Optionor owns and holds the fee title to that certain
real property consisting of approximately acres located in the
City of Tustin, County of Orange, State of California, which real
property is more particularly described on Exhibit "A" attached hereto
(said real property is hereinafter referred to as the '~roperty").
1.2 Optionor, as developer, is presently constructing a
two-story parking structure on the Property. The title to the Property
will be transferred to Stevens Sq,,~re Association, a California non-
profit mutual benefit corporation, a~ part of a cormmercial development
undertaken by Optionor on property adjacent to the Property (said
two-story parking structure is hereinafter referred to as the '~arking
Structure").
1.3 (bncurrent with the execution of this Option Agreement,
Optionor, 'as Lessor, and Tustin C~z~unity Redevelopment Agency, a~
Le~ee~ have entered into a Parking Structure Lease whereby Optionor, a~
Lessor, leases to Option.cc, as Lessee, certain parking space located in
the Parking Structure, which parking space is more particularly des-
cribed in Exhibit 't~" attaChed hereto and incorporated herein by this
reference.
1.4 Optionee desires to acquire the exclusive right to
purchase and Optionor desires to sell a certain interest in the Imarking
Structure purs,~,nt to the provisions hereof.
ARTICLE 2
Agr~anent of Sale
2.1 For and in consideration of O~e Dollar ($1.00) receipt of
which is hereby acknowledged, the mutual covenants herein contained and
other good and valuable consideration, Optionor hereby grants to Op-
tionee the right to purchase the Unit in the Parking Structure desig-
nated as Unit No. 2 in the Declaration of Covenants, Conditions and
-2-
Restrictions and Reservation of E~sements for Stevens Sq~,~re Parking
Structure Condominiu~n Association together with an undivided 38.38~ fcc
interest _.~ a tenant in common in the common area designated in
Declaration which is attached hereto -~ ]~khibit "C" and incorporated
herein by this reference. (Said property to be referred to as the
"Option Property").
(a) Thim option shall coa~ence on the date of execution
hereof and continue until such time as the Lease Agreement described
above shali terminate (herein referred to as "option period"), except
the event Lessor terminates said Lease Agreement pur~mnt to a termina-
tion right of' Lessor, if any, the option described above shall continue
for an additional six .(6) months after such termination.
(b) Optionor shall have the exclusive right during
the option period to' purchase the Option Property, for a total purchase
price eq,,-] to:
(1) Six Hundred Thousand Dollars ($~0,000) or the
cost of Construction as defined in 'subsections (c) and (d) hereof of the
Parking Structure, whichever is less;
(2) Less 'the sum of Seventy-Two Thousand Dollars
($72,000);
(3) Less any amounts paid by Optionee upon the
principal balance of the construction 'loan for the Parking Structure.
(4) Plus the sum of Fifteen Thousand Dollars
($15,000) as a fee for office and field supervision.
-3-
(c) "Cost of Construction" as used herein shall mean
the actual costs necessarily and reasonably incurred for the proper
perform2nce of the work, such costs to include 'the following items:
(1) Wages, salaries and fees paid to Optionor's
contractors performing authorized work upon the Parking Structure.
(2) Cost of necessary mterials, equiunent, tools,
supplies, fuel, freight charges and services.
(3) Reasonable rentals on construction equipment
and tools.'
(4) Cost of necessary licenses, permit fees and
bonds required for the construction.
($) Cost of necessary engineering services, plans
and specifications and architectural expenses.
(d) '~ost of construction" shall not include the roi-
lowing:
off-site offices.
(2)
(3)
(4)
employees of Optionor.
the Parking Structure.
(e)
('1) Expenses for operating Optionor's on-site or
Interest om capital employed or money borrowed.
Overhead or general expenses of any kind.
compensation of officers, owners, partners or
Any profit attributed to the construction of
Discounts, rebates and refunds accrued to Optionor
as a result of construction of the P~rking Structure, and Optionor shall
take the necessary steps to secure same, shall be deducted from the Cost
of Construction.
(f) Dar~__Ees and liquidated dsnmEes recovered by Optionor
on labor, materials, or supplies charged as a Cost of Construction shall
be deducted fro~ the Oost of Construction.
(g) Sun~ collected by Optionor as a result of the sales
of surplus materials, equiunent, supplies and scrap shall be deducted
fro~ the Cost of Construction, and Optionor shall take the necessary
steps to sell such surplus.
(h) The value of all surplus materials, equipment,
supplies and scrap retained by Optionor shall be deducted from the Cost
of Construction.
~.., 2.2 To exercise its option, Optionee shall give Optionor and
Escrow Agent sixty (60) days prior written notice of its intention to
exercise its option to purchase the Option Property. Tae sixtccath day
thereafter shall be the closing date of the option escrow.
Upon Optionee giving notice of its intention to exercise its
option, Optionor shall deliver to Escrow Agent, with a copy to Optionee,
a copy (conformed to show recording in the Office of the Orange County
Recorder) of the Declaration of Covenants, Conditions, Restrictions and
Reservations of Fas~leats for Steveas S~uare Parking Structure Co~dom~-
ni~ Association attached hereto as Exhibit "~'.
ARTICLE 3
Title Report
3.1 A preliminary title report shall be delivered to Optioncc
at Optionor's cost on or before twenty (20) days 'after Optionee bas
given Optionor and Escrow Agent w~-itten notice of its intention to
exercise its option pur~,,nt to Section 2.2(a) above. Optionee shall
notify Optionor within ten (10) days 'of receipt of said preliminary
title report of any objections or disapproval of exceptions to title.
In the event Optionee objects to any exceptions to title, Optionor shall
cure such title objections within thirty (30) days after receipt of
notice from Optioncc, provided that Optionor shall have the right to
apply any portiou of the purchase price payable at or prior to close of
escrow for purposes of curing any title objections of a definitive and
ascertainable amount concurrent with the close of escrow. If Optionee
fails to give Optionor notice of such disapproval or objections to title
within said ten (10) day period, the conditions of title shall be deemed
approved.
ARTICLE 4
Optionee's Deliveries to Escrow Agent
4.1 Prior to close of escrow Optionee shall deposit with the
Escrow Agent cash in an amount eq,,~! to the purchase price as described
in Section 2.1(b) herein.
ARTICLE 5
Optionor's Deliveries to Escrow Agent
5.1 Optionor shall, prior to the close of escrow deliver to
Escrow Agent ~
5.1.1 ~he Optionor's Grant Deed in the form commonly
used by First American Title Insurance and Trust Company on the Closing
Date conveying the Option Property to Optionee, subject only to the
terms of Exhibit "~' herein 'and those exceptions to title approved by
Optionee pursuant to Section 3.1 above, which Grant Deed shall be
executed and acknowledged by 0ptionor ~d/or such person(s) as the title
insurer may require in order to issue the Title Policy described in
Section 6.1 · 2.
5.1.2 If the funds required to be deposited with Escrow
Agent by Optionee and the instruments described herein are insufficient
· to (a)' procure the Title Policy, and (b) pay the amounts otherwise
required of optionor hereunder, then, in such event, 0ptionor shall
deliver .to Escrow Agent sufficient funds and instr~aents to accomplish
the matters described in subsections (a) and (b) above.
ARTICLE 6
Tbe 'Closing
6.1 Escrow Agent shall close the escrow on the Closing
Date, or as soon thereafter as' optioDor shall have complied with all of
its obligations hereunder, by (a) filing for record the Optionor's
Grant Deed for the Option Property and such documents ~s may be neces-
sary to procure the Title policy, and (b) delivering funds amd documents
as set forth in Article 8, entitled "Escrow Agent's Delivery of Funds
and Docmneats" IF AND ONLY IF each of the following conditions bas been
satisfied:
6.1.1 All funds and imstr~nents described in Articles 4
and 5 have been delivered to Escrow Agent.
6.1.9 Escrow Agent can procure from First American Title
Insurance and Trust Company a CLTA owner's policy of title insurance
(the "Pitle Policy"), with liability in the amount of the total purchase
price for the Option Property on the Closing Date. Said CLTA policy is
to insure fee title to the Option Property vesting in optioncc~, subject
only to all matters shown on the preliminary report on title and ap-
proved by Optioncc as more fully described in Section 3 above and the
terms of Exhibit "~' herein.
ARTIf~.w. 7
Fees and Costs
. 7.1 Optionor will pay (a) Doc~nentary Transfer Tax, in the
amount Escrow Agent determines to be required by law, (b) the Title
Policy pre~it~., (c) one-half (1/2) of Escrow Agent's fee, and (d) usual
optionor's/seller's docur, ent-draft-ing and recording charges.
7.2 Optionee will pay (a) one-half (1/2) of Escrow Agent's
and (b) usual optionee's/buyer's document-drafting and recording
fee~
charges.
ARTICLE 8
Escrow Agent's Delivery of Funds and Documents
8. I Escrow 'Agent will cause the County Recorder of Orange
County to mail the optionor's Grant Deed (and each other document which
is herein expressed to be, or by general usage i$, recorded), after
recordation, to the Optionee, grantee, beneficiary or person (a) ac-
quiring rights under said document, or (b) for. whose benefit said
document ~as acquired.
8.2 Escrow Agent will deliver by United States mail (or ~rll!
hold for personal pickup, if requested), each non-recorded doct~aent
re~.eived hereunder by Escrow Agent to the payee or person (a) acquiring
rights under said document, or (b) for whose benefit said document was
acquired.
8.3 Escrow Agent ~111 deliver to Optionor a copy (conformed
to show recording date) of the Optionor's Grant Deed and each document
recorded to place title in the condition reqmired by this Agreement.
8.4 Escrow Agent will, at the close of the escrow, deliver by
United States mail (or will hold for personal pickup if requested) (a)
to Optionor, or order, the purchase price (cash) as determined is
accordance with the terms of this Agrc~:ment and (b) to Optionee, or
order, any excess funds theretofore delivered to Escrow Agent by Op-
t ionc~.
8.5 Escrow Agent wilI cause the County Recorder of Orange
County to m2il Exhibit '~' herein to Optionor after recordation and
deliver to Optiouee a copy of said document conformed to show recording
date.
ARTI~.~ 9
Interest of Stevens Squ~re Association
9.1 Optionee acknowledges that Optionor has or will have
assigned and tr~nsfere~ both the Par~ing Structure iu ~hich the O~tion
Property is located and the Property to Stevens ~quare O~ers ~ssocia-
tion, a non-profit n~tual benefit corporation. Opt.ionor represents and
warrants that said transfer to Stevens ~quare Owners ~ssociation was is
and will be subject to Optioncc's rights to acquire the Option Property
pur~nt to the terms of this Option Agreement. Prior to the transfer
o~ Option Property as noted above, Exhibit "~' herein will be recorded
in the Office of the County Recorder of Orange County,-California.
Optionee dnderstands aud agrees that it will take title to the Option
Property subject to all the te~s and conditions of said Exhibit 'I?.
ARTICLE 10
Warrauties md l~$t Closing Obligations
10.1 O~tionor warrants that it bas the authority to enter into
this Agrc~ent~ and that it is a~are of no actions, claims, claims for
possession including' adverse possession, or litigation pending con-
cerning the Property or the Option Property as of the date of this
Agreement. Seller will advise Buyer if it becc~r~s aware of any actions~
claims, clain~ for pessession including adverse possession, or litiga-
tion pending after the date of 'this Agrc~ent.
10.2 Optionee warrants that it bas the authority to enter into
this Agre~nent. By reason of its signature hereto, the City of Tustin
agrees that the terms of ~bis Agr~r~nt shall be binding on and enfor-
ceable against any ~n~u~ic±pal entity created ~ a successor in interest
to Optionee.
10.3 Notwithstanding anything conta±ned herein to the con-
tr~y, each p~ty expressly ~r~s to ~ve its right to bring ~ ~ction
to .p~tition the ~tion Pro~rty. ~¢h part~ f~the: ~r~s that ~d
~aiver of its right to ptrtition tbe property in question ~ilI be
binding u~n its succ~sors ~d ~ig~ ~ inter.t, ~d ~11 ~ a
coven~t r~ning ~th the l~d.
10.4 ~tionor ~r~ts that' at close of e~row the ~tion
~operty ~11 ~ frc¢ ~d cle~ of ~y liens ~d/or other enc~br~c~.
~I~.R 11
~ ~A~ ~I88ION
11.1~ ~cro~ ~eot sh~ll h&~ no ~nce~ ~th, nor liability
nor res~nsibility for, this ~ticle.
11.2 ~tionor ~rr~ts to ~tion~ that it h~ inc~r~ no
obligmtign for ~ real ~t~te broker's, ~ent's or sgl~n's c~ssion
by re,on of this ~re~nt, or the tr~ction cont~lat~ hereby~~ for
which ~tioncc would be liable ~d no broker or other ~rson is entitl~
to ~ c~ssion or finder's f~.in conn~tion ~th ~y of the tr~sac-
tions describ~ herein ~d ~tionor ~r~s to ind~ify ~d hold ~-
tionee h~fle~ for ~ liability, cla~, d~d, mcco~t, lien or
enc~br~ce ~sert~ by ~y such broker, s~e~n or ~ent.
11.3 ~tionc~ ~r~ts to ~tionor that it h~ inc~r~ no
obligmtion for a re~l estate broker's, ~ent's or salon's c~ssion
by re, on of this ~rc~nt, or the tr~saction cont~plated hereby, for
which ~tionor would be li~le ~d no broker or other ~rsoa is entitl~
-11-
to any commission or finder's fee in connection with any of the transac-
tions described herein and Optioncc agrees to indsmuify and hold Op-
tionor harmless for any liability, claim, .demand, account, lien or
enc~nbrance asserted by any such broker, salesman or agent.
ARTI(~.~. 12
Assignment by Optionee
12. I Optionee shall not either voluntarily or by operation of
law, assign or transfer this Agre~nent or any interest therein, or any
right or ~rivilege appurtenant thereto, (the employees, agents, servants
and invitees of the Optionee and the partnership, corporation or asso-
ciation' which is the successor entity or successor in interest of the
Optionee excepted) without the prior written consent of OptionOr first
had and obtained, which consent shall not be unreasonably withheld so
long as the financial status, ability and condition of the proposed
assignee are of a nature sufficient to ~n~ct and satisfy the obligations
of Optionee herein. Optionee shall furnish all financial informatio~
regarding the proposed assignee, or transferee reasonably requested by
Optionor including,' without l~m~tation, certified financial statements
and recent federal income tax returns. A consent to one assignment of
transfer by any other person shall not be. d~ned to be a consent to any
subsequent assignment or transfer, by another person. A~y such assign-
ment or transfer, without such consent shall be void, and shall, at the
option of the Optionor~ constitute a default under this Agreement.
Notwithstanding the above, Optionee shall not either voluntarily or by
operation of law, mortgage, pledge, hypothecate or enc,~nber this Agree-
ment or any interest therein without the prior written consent of
Optionor first had and obtained,, which consent, may be withheld hy
Optionor for ~n¥ re-~on whatsoever. In the event of a~y assignment or
transfer approved by Optionor and as a condition thereof, Optionee shall
deliver to Optionor ~n executed doct~nent whereby the assignee or trans-
feree acknowledges acceptance of all of the terms and conditions of this
~rc~ent.
1~..2 Notwithstanding the preceding Section 12.1, Optionee
shall have the right, without securing Optionor's prior consent, to
transfer and assign its right, title and interest in and to this Agree-
ment tO any municipal entity which ha~ b~cn designated by a~ appropriate
governmental entity a~ the successor in interest to Optionee.
A/~IO,~. 13
Notices
13.1- Unless otherwise specifically provided herein, all
notices, demands or other ca.,,aications given hereunder shall be in
writing and shall he d:~d to have b~on delivered as of actual personal
delivery or as o£ the second business day after mailing by United States
registered or certified mil, return receipt requested, postage prepaid,
addressed as follows:
If to Optionee, to:
TUS'PIN OOMtfONIT~ REDEVELOt~iENT AGENCY
Tustin City ~all
Main and Centennial
Tustin, California 92680
ATTE~ION: Executive Director
Copy to~
JAME~G. ROURKE, Esq.
City Attorney
1055 N. ~£n Street
Suite 1020
Santa Ana, California
92701
If to Optionor, to:
c/o GF~L~R DEVELOI~.ENT OOMPANY, INC.
228 West Main Street
Tustin, California 92680
ATTENTION: Dougla~ M. C/feller, President
Copy to:
BALDIKOSKI, KLOTZ, & DRAGONETPE
270 Newport Center Drive
Newport Beach, California 92660
ATrENTION: Tnc~--~ H. Baldikoski, Esq.
If to EscrowAgent, to:
FIRST AMERICAN TITLE
114 Ernst Fifth Street
Santa Aha, California
ATrENTION:
or such other address or to such other person a~ amy party shall desig-
hate to the others for such purpose in the manner hereinabove set
forth.
ARTIO~ 14
Indemnity
14.1 E~ch party (hereinafter referred to in this Article
14 as the "Ind~nnifYing Part~') agrees to keep and hold the other party
(hereinafter referred to in this Article 14 as the "Other Party") free
and harmless from, and to indemnify and defend the Other Party against:
(a) any and all obligations, liabilitie~, clsims, accounts,
liens or encumbrances asserted by third ~i~, ~e~her dir~,
~ingen~ or cons~uen~ial ~d no ~ter how arising, in ~y ~y relat~
~o ~ ac~, conduc~, ~ion, contract, ~n~ or c~n~ of ~he
Ind~ifying ~r~y, its ~loy~, ~en~s or licenses, a~
prior ~o re.nation of escrow, conn~ ~h or ~ising fr~ the
c~su~ion of this ~r~s~ion, (b) ~y lo~ or d~se ~o the ~her
~r~F r~l~ing fr~ ~y inacc~acy or br~h of ~y repr~ent~tioa or
~r~y ~f the Ind~ifying ~rty, or re~ing fr~ ~y bre~ch or
defa~ of ~he Ind~ifying ~r~y of ~ coven~ or ~re~a~ ~h ~he
~her ~ty ~der this ~rc~n~ or o~her d~n~s en%er~ into p~-
s~ hereto, ~d (c) all costs ~d ex~ns~ including a~orney's
related to ~y ~tioa, ~t or jud~nt inciden~ ~o ~y of the ohliga-
~ioa~ descri~ in ~c~ioa 14.1(a) ~d (b).
14.2 ~e ~her ~r~y sh~ll pr~tly notify ~he Ind~ifying
~rty in the event ..y cla~ is ~e ~ainst it for ~ich the Ind~i-
lying ~rty h~ ~r~ to ind~ify the ~her ~rty ~ set forth in this
~re~nt ~d the Ind~ifying ~rty shall ~dert~e to defend ~d hold
the ~her ~rty frcc ~d ha~ therefr~ ~ing co~sel r~o~ably
satisf~to~ to the ~her ~r~y. ~ould the Ind~ifying ~rty fail
discharge or ~dert~e to defend the ~her ~rty ag~nst such liability,
~hen the ~her ~rty my settle the s~e ~d the Ind~ifying ~rty's
liability to the Other Party shall be conclusively established
such settl~nt consideration ~d the re~onable costs ~d ex~nses,
-l§-
including attoroey's fees, necessar£1y incurred by the Other Party in
effecting such settl~eot.
14.3 All indemnities given pur~,~-t to this ~rticle are not
intended to be in lieu of any other remedy, expressed or
or in equity, and shall not be dee~ed to' be a waiver of any r~dy, and
shall survive the Closing Date.
· AI~TICL~ 15
Lessor Insurance
15.1 During the optioa period, Optionor, at its cost shall
maintain on the Parking Structure a policy of standard fire and extended
coverage insurance, with vandalism ~nd malicious mischief endorsements,
to the extent of at leas~ the full replacement value thereof. The "full
replac~nent value" of the building and other improvements to be insured
under this paragraph shall be determined by the company issuing the
insurance policy at the time the policy is initially obtained. Not more
frequently than once every throo years, either party hereto shall have
the right to notify the other party that it elects to have the replace-
ment value redetermined by an insurance co~pany. The redetermination
shall be made pr~nptl¥ and in'accordance with the ~ules and practices of
the Board of Fire Unde~-wx-iters, or a like board recognized and generally
accepted by the insurance company, and each p~rty sh~li be promptly
notified of the results by the company. The insu~ance policy shall be
adjusted according to the rede~e~ninatioa.
15.2 Ail policies of insurance required by Section ~$.!
above, shall be issued i~ the names of Optionor, Optionee, -nd Op-
tionor's lender as their interests appea~. The insurance policies shall
provide that any proceeds sh~ll be. made payable, to Optionor or
tionee's lender if so required by the lender. The parties release each
other and their respective authorized representatives from any claims
for damage to any person or to the Parking Structure and to the fix-
t~-es, personal property, improvements 'and ,Iterations thereon that ~re
caused by or result from risks insured a~zinst under any insurance
policies ~rried by the p~rties and enforced at the time of any such
damage. E~ch party shall cause each insurance policy obtained, by it to
pr?vide that the insurance company waives all right of recovery by way
of subrogation against either party in connection with any d~ma§e
covered by any policy. Neither p~rty shall be liable to the other for
any damage caused by fire or any of the risks insttred ~gginst u~der any
other insurance policy required by this Agr~-~ment.
15.-3 All insurance required under this Agreement shall:
15.3.1 Be issued, by insurance companies author, s. ed to
do business in the State of C~lifornia~ ~rith the financi&l rating of at
least A plus 3A status as related in the most recent addition of Best's
insurance reports.
15.3.9~
15.3.3
Be issued as a pri~rF policy.
Contain an endorsement requiring 30 days'
written notice from the insurance company to each party and Optionor's
lender before cancellation or chanEe in the coverage, scope, or amount
of any policy.
Each policy, or a certificate of the policy, together with evidence of
payment of premim~s, shall be deposited with both parties at the com-
mencement of the term of the policy, and on renewal of the policy, not
less than 30 days before expiration of the tern of the policy.
ARTICLE 16
Extent of Escrow Agent's Responsibilitie~
10.1 Escrow Agent shall not be liable for any of its acts or
omissioas 'unless the' same shall constitute negligence or willful miscon-
duct.
i6.2 Escrow Agent shall have no obligation to inform any party
of any other trsn~actions or of facts within Escrow Agent's knowledge,
even though the same concerns the Option Property or Ppemises~ provided
such m~tters dq~not prevent Escrow Agent's compliance with this Agrccnlent.
16.3 Escrow' Agent shall not be responsible for (a) the suffi-
ciency or correctness as to form or the validity of any doc~nent de-
posited with Escrow Agent,. (b) the n~nner of execution of any such
deposited doc~nent,' ~nless such execution occurs in Escrow Agent's
pr~llises and under its s~pervisio~, or (c) the identity, authority, or
rights of any person executing any document deposited with Escrow
Agent.
16.4 Should Escrow Agent receive or become aware of con-
flicting d~qnds or claims with respect to the escrow, the rights of any
patty hereto, or funds, docL~nents, or property deposited with Escrow
-18-
A~ent, Escrow Agent shall have ~he right to discontinue any further acts
until such conflict is resolved to its satisfaction, and it shall have
the further right to commence or defend any action for the determination
of such conflict. ~he parties shall, immediately after demand therefore
by Escrow A~ent, reimburse Escrow Agent (in such respective proportions
as Escrow Agent shall determine) any reasonable attorney's fees and
court costs incurred by Escrow Agent pur~nt ~o this Paragraph.
ARTIf~,R 17
General Provisions
17.1 Definitions of words and phrases used in this Agrc~cment:
17.1.1 "Cash" means (a) currency, or (b) cashier's
check(s), or (c) certified check(s).
17.1.2 ."party" or "parties" means Optionor and/or
Optionee~ as the context indicates.
17.1.3 "/he escroff' means the escrow created hereby.
-17.1.4 The phrase "Closing Date" means the date on
which Optionee has elected to exercise its option to purchase the Optio~
Property purs,~nt to the notice requirements of Section 9..2(a) herein.
17.1.5 The phrase "the opening of the escroff' means the
date Escrow Agent signs the "Consent of Escrow Agent" attached hereto.
17.9. The use herein of (a) the neuter gender includes the
masculine and the feminine, and (b) the singular number includes the
plural, whenever the context so requires.
17.3 Captions in this Agrc~ment are inserted for convenience
-19-
of reference only and do not define, describe, affect the construction
or interpretation or limit the scope or the intent ot this Agr~ment or
any of the ter~ and provisions hereof.
17.4 A11 exhibits referred to herein and attached hereto are a
part hereof and incorporated herein by this reference.
17.5 This Agreement and the Exhibits thereto contain the
e.ntire agreement between the parties relating to the transactions
contemplated hereby and all prior or contemporaneous agreements, under-
standings,' representations, and statements, oral or written, are merged
herein.
17.6 No modification, waiver, smendment, discharge or change
of this Agreement shall be valid unless the same is im writing and
signed by the party against which the enforc~nent of such modification,
waiver, amendment, discharge, or ch~nse is or may be sought.
i?.? Optionor and Optionee shall, whenever and as often as
reasonably req. uested to do so by the other party, execute, acknowledge
and deliver or cause to be executed, acknowledged or delivered, any and
all doc~nents and instr~nents as m~y be necessary, expedient or proper
in the opinio~ of the requesting pa~ty to carry out the intent and
purposes of this Agreement, providing that the requesting pa~ty shall
bear the cost and expense of such further inst~mnents or documents
(except that each party shall bear its own attorneys' fees).
17.8 In the eSent either party commences litigation for the
judicial interpretation, enforcement, breach or rescission hereof, the
17.12
herein.
17.13
prevailing p~rty shall be entitled to a judcment acainst the other for
an amount equal to reasonable attorney's fees and court and other costs
incurred.
17.9 All terms of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and
their respective legal representatives, successors, and assigns.
17.10 This Agreement shall be construed and enforced in accor-
dance with the laws of the State of California.
17.-11 All obligations referred to herein to be performed in a
time or times after the close of the escrow, and all warranties and
representations contained herein, shall survive the close of escrow and
the delivery of Optionor's Grant Deed.
Time is of the essence of each obligation of each party
Tae parties hereto, and each of them, acknowledge that
this Agrccment. has been prepared by the joint efforts of the parties
hereto and their respective counsel and the parties agree that the terms
of this Agreement Shall be given a neutral interpretation and any
ambiguity or uncertainty is not to be construed against either party
hereto.
17.14 In the event that any of the provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by
any court of competent jurisdiction, the validity and enforceability of
the remaining provisions, or portions thereof, shall not be affected
-21-
thereby.
/his Agreement has been executed by Seller and
the date set forth at the beginning hereof.
Buyer, ms of
STEVENS SQUARE,
m C~lifornia limited partnership,
by GFk~LWRDEVELOP~ENTCO~PANY, INC.,
a C~lifornia corporation,
General Partner
TUSTINOO~FONITYREDEVELOt%~ENT
AGENCY, a C~lifornia
Co~,~unity Redevelopment Agency
Douglas M. Gfeller - President
CITY OF TUSTIN,
a municipal entity
CONSENT OF ESCROW AGENT
The undersigned Escrow Agent hereby aErees to (a) accept the
foregoing Acreement and Instructions, (b) be Escrow Agent under said
Agreement and Instructions for the fees therein specified and (c) be
bound by said Agreement and Instructions in the performance of its
duties as Escrow Agent; provided, however, the undersigned shall have no
obligations, liability or responsibility under (i) this Consent or
otherwise, unless and until said Agr~-~ment and Instructions, fully
signed by the parties, has been delivered to the undersigned, or (ii)
any amendment to said Agrc~,-~nent and Instructions unless and until the
same shall be accepted by the undersigned in writing.
DATED:
FIRST AMERICAN TITLE INSURANCE
AND TRUST CO~PANY
By
Escrow OTficer
AGREEMENT
A. Parties. This Agreement is entered into as of this
day of February,~1982, by, between and among STEVENS SQUARE, a
California limited partnership (hereinafter "STEVENS"), CITY OF
TUSTIN, a municipal corporation (hereinafter "CITY"), and TUSTIN
COMMUNITY REDEVELOPMENT AGENCY, a statutory entity within the
City of Tustin, to wit, a California Community Redevelopment
Agency (hereinafter "AGENCY").
B. Recitals. Whereas, STEVENS is developing an office condo-
minium project at the southwest corner of the intersection of Main
Street and "C" Street in the City of Tustin; and
Whereas, the City Council of CITY has adopted Resolution No.
, vacating a portion of "C" Street as described in
said resolution; .and
Whereas, STEVENS is developing the office condominium, the
parking structure and the vacated portion of "C" Street as a
single development with a pedestrian and vehicular traffic mall
and plaza located generally between the office condominium and
parking structure; and
Whereas, CITY has excepted from said street vacation an ease-
ment for pedestrian and vehicular traffic over the mall and plaza as
more particularly described in Exhibit "A" attached hereto and incor-
porated herein by this reference; and
Whereas, pursuant to the Lease and Option Agreements executed
concurrently herewith, the Parking Structure is intended for the
joint use and potential joint ownership by STEVENS and its suc-
cessor in interest, AGENCY and CITY; and
%~ereas, the parties.hereto now desire to provide for the
development of the mall and plaza, together with the easements
reserved by CITY, and further desire to provide for the maintenance
of the same.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations herein contained, it is agreed by, between and among
the parties hereto as follows:
ARTICLE 1
DESCRIPTION
1.1 For the purposes of this Agreement, the property to be
subject to the terms and conditions of this Agreement (hereinafter
"premises") is described in Exhibit "A" attached hereto and incor-
porated herein by this reference.
ARTICLE 2
IMPROVEMENTS
2.1 Construction. STEVENS or any contractor(s) selected by
STEVENS to perform the construction work required of STEVENS pur-
suant to this Agreement (hereinafter collectively referred to in
this Article 2 as "STEVENS") shall within (30) days after execu-
tion of this Agreement commence construction of improvements on
the premises in conformance with the plans and specifications
attached hereto and incorporated herein by this reference as
Exhibit "B" and shall with reasonable diligence prosecute to
completion all such construction of improvements, additions, or
alterations on the premises. Construction shall be completed
and ready for use within __ months after commencement of con-
struction, proVided~that the time for completion may be extended
for as long as STEVENS is prevented from completing construction
--2--
by delays beyond STEVENS'S control.
Ail work shall be performed in a good and workmanlike manner,
shall substantially comply with plans and specifications submitted
to CITY as required by this Agreement, and shall.comply with all
applicable governmental permits, laws, ordinances, and regulations.
2.2 Protection of Property Against Claims. Except as pro-
vided in Paragraph 2.6, STEVENS shall pay or cause to be paid the
total cost and expense of all works of improvement, as that phrase
is defined in the Mechanics' Lien Law in effect at the place of
construction when the work begins. STEVENS shall not suffer or
permit to be enforced against the premises or any part of it any
mechanic's, materialman's, contractgr's, or subcontractor's lien
arising from any work of improvement, however it may arise. How-
~ever, STEVENS may in good faith and at STEVENS'S own expense con-
test the validity of any such asserted lien, claim, or demand, pro-
vided STEVENS has furnished the bond required in California Civil
Code Section 3143 (o~ any comparable statute hereafter enacted for
providing a bond freeing the premises from the effect of such a
lien claim).
STEVENS shall defend and indemnify CITY and AGENCY against all
liability and loss of any type arising out of work performed on
the premises by STEVENS, together with reasonable attorneys' fees
and all costs and expenses incurred by CITY and AGENCY in negoti-
ating, settling, defending, or otherwise prote~ting against'such
claims.
2.3 Right to DiScharge Lien. If STEVENS does not cause to be
recorded the bond described in California Civil Code Section 3143
or otherwise protect the property under any alternative or successor
statute, and a final judgment has been rendered against STEVENS by
a court of competent jurisdiction for the foreclosure of a mechanic's,
materialman's, contractor's or-subcontractor's lien claim, and if
STEVENS fails to stay the execution of the judgment by lawful means
or to pay the judgment, CITY and/or AGENCY shall have the right,
but not'the duty, to pay or otherwise discharge, stay, or prevent
the execution of any such judgment or lien or both. STEVENS shall
reimburse CITY and/or AGENCY for all sums paid by them under this
paragraph, together with all their reasonable attorneys' fees and
costs, plus interest on those sums, fees, and costs at the rate of
10 percent per year from the date of payment until the date of reim-
bursement.
2.4 Notice of Completion. On completion of any substantial
work of improvement required by this Agreement, STEVENS shall file
or cause to be filed a ~tice of Complgtion.
2.5 Changes in Plans. On completion of any work of improve-
ment, STEVENS shall give CITY and AGENCY notice of all changes in
plans or specifications made during the course of the work and shall,
at the same time and in the same manner, supply CITY and AGENCY
with "as built" drawings accurately reflecting all such changes.
Changes that do not substantially alter plans and specifications
previously approved by CITY and AGENCY do not constitute a breach
of STEVENS'S obligations.
2.6 Payment by Agency. Within sixty (60) days after the filing
~of the-~Notice of Completion of the construction herein required, .'
AGENCY shall pay to STEVENS or any party designated by STEVENS, the
sum of Fifty Thousand Dollars ($50,000.00) less any sums paid by
CITY or AGENCY pursuant to paragraph 2.3 and 2.7. STEVENS shall
pay for all other costs of construction or other costs incidental
thereto.
2.7
Insurance, Legal Responsibility and Safety.
2.7.01 INSURANCE. STEVENS shall not commence any work
until STEVENS obtains, at STEVENS'S own expense, all required in-
surance. Such insurance must have the approval of CITY and AGENCY
as to limit, form, and amount.
a. Types: The types of insurance required to be obtained
and maintained pursuant to this Agreement will be: Workmen's Com-
pensation Insurance, Comprehensive General Liability Insurance,
and Builders' Risk "All-Risk" Insurance as detailed in the following
portions of this specification.
b. Evidence: As evidence of specified insurance coverage,
CITY or AGENCY may, in lieu of actual policies, accept certificates
issued by the insurance carrier showing such policies in force for
the specified period. Each policy or certificate will bear an
endorsement or statement waiving right of cancellation or reduction
in coverage without ten days' notice in writing to be delivered by
registered mail to CITY and AGENCY. Should any policy be cancelled
before completion of construction and STEVENS fail immediately to
procure other insurance as specified, CITY reserves the right to
procure such insurance and to deduct the cost thereof from any sum
due STEVENS under this Agreement.
c. Payment of Damages: Nothing contained, in these insurance
requirements, is to be construed as limiting the extent of STEVENS'S
responsibility for payment of damages resulting from his operations
under this Agreement.
2.7.02 WORKMEN'S COMPENSATION INSURANCE: Before this
Agreement is entered into, STEVENS shall submit written evidence
that all contractors and subcontractors involved in the subject
construction have obtained, for the period of construction, full
Workmen's Compensation Insurance coverage for all persons whom
they employ or may employ in carrying out the work under this
Agreement. This insurance shall be in strict accordance with the
requirements of the most current and applicable state Workmen's
Compensation Insurance Laws.
2.7.03 COMPREHENSIVE GENERAL LIABILITY INSURANCE: Before
commencement of the work, STEVENS shall submit written evidence that
all contractors have obtained for the period of construction, full
Comprehensive General Liability Insurance coverage. This coverage
shall provide for both bodily injury and property damage. The
Comprehensive General Liability Insurance will include as Additional
Named Insureds: CITY; AGENCY; ASSOCIATION; and their consultants;
and each of their officers, agents, and employees.
a. Bodily Injury portion shall include coverage for injury,
sickness or disease, and death, arising directly or indirectly
out of or in connection with, the performance of work under this
Agreement, and shall provide for a limit of not less than two
hundred thousand dollars ($200,000) for all damages arising out
of bodily injury, sickness or disease to or death of one person,
and a total limit of one million dollars ($1,000,000) for damages
arising out of bodily injury, sickness or disease and death of two
or more persons in any one occurrence.
b. Property Damage portion will provide for a limit of not
less than two hundred thousand dollars ($200,000) for all damages
arising out of injury to or destruction of property of others
arising directly or indirectly out of or in connection with the
performance of work under this Agreement and in any one occurrence
including explosion, collapse and underground exposure.
c. Indemnity: Included in such insurance will be contractual
coverage sufficiently broad to insure the provisions of Paragraph
2.7.05.
2~7.04 INDEMNITY: STEVENS shall hold harmless, indemnify
and defend the CITY, AGENCY, ASSOCIATION an~ their consultants,
and each of their officers and employees and agents, .from any and
all liability claims, losses or damage arising or alleged to arise
from the performance of the work described herein, but not including
the negligence of CITY, AGENCY or ASSOCIATION', its employees or
authorized-agents or representatives.
2.7.05 PATENTS AND ROYALTIES: If any design, device,
material or process ,covered by letters patent or copyright is used
by STEVENS, STEVENS shall provide for such use by legal agreement
with the owner of the patent or a duly authorized licensee of such
owner, and shall save harmless the CITY, AGENCY and ASSOCIATION
from any and all loss or expense on account thereof, including its
use by CITY, AGENCY or ASSOCIATION.
- 2.7.06 PERMITS: All permits and licenses necessary fori'
prosecution of the work ~hall be-secured and paid for by STEVENS
or its authorize~ agents or representatives.
2.7.07 LAWS TO BE OBSERVED: STEVENS shall cause to be
given all not~ces and comply with all Federal, SAate and local laws~
ordinanCes~and regulations in any manner affecting the conduct of
the work, and all such orders and decrees as exist, or may be en- -
acted by bodies or tribunals having any jurisdiction or authority
over the work, and shall indemnify and save harmless CITY, AGENCY
and ASSOCIATION against any claim or liability arising from, or
based on, the violation of any such law, ordinance, regulation,
order or decree.
2.7.08 WORK DURING AN EMERGENCY: STEVENS shall perform
any work and shall furnish and install any materials and equipment
necessary during an emergency endangering life or property..
2.7.09 WARNING SIGNS AND BARRICADES: STEVENS ~hall pro-
vide adequate signs, barricades, red lights and watchmen and take
all necessary precautions f6r the protection of the work and the
safety of the public. All barricades and obstructions shall be
~otected at night by suitable signal lights which shall be kept
burning from sunset to sunrise. Barricades shall be of substan-
tial construction and shall be painted such as to increase their
visibility at night. Suitable warning signs shall be so placed
and illuminated at night as to show in advance where construction,
barricades, or detours exist.
2.7.10 PUBLIC CONVENIENCE: STEVENS shall at all times so
conduct the work as to insure the least possible obstruction to
traffic and inconvenience to the general public and the residents
in the vicinity of the work and to insure the protection of persons
and property. No road or street shall be closed to the public ex-
cept with the permission of the proper authorities. ~ire hydrants
on or adjacent to the work sh~ll be kept accessible to fire-
fighting equipment at al~ times. Temporary provisions'shall be
made by STEVENS to,insure the use of sidewalks and the proper func-
tioning of all gutters, sewer inlets, drainage ditches, and
irrigation ditches,~ which shall not be obstructed.'
2.7.11 SAFETY: In accordance with generally accepted
construction practices, STEVENS shall be solely and completely
responsible for conditions of the job site, including safety of
all persons and property affected directly or indirectly by its
operations during the performance of the work. This requirement
will apply continuously 24 hours per day until completion of the
work and shall not be limited to normal working hours.
2.7.12 SANITARY PROVISIONS: STEVENS shall provide and
maintain such sanitary accommodations for the use of its employees
and those of its contractors as may be necessary to comply with
the requirements and regulations of the local and state departments
of health.
ARTICLE 3
MAINTENANCE
3.1 Maintenance of Premises.
(a) The overall maintenance, repair and control of the
premises shall be vested in STEVENS and CITY or their successors
in interest, (hereinafter collectively referred to in this Article
3 as "STEVENS and CITY") and all decisions made and agreed to in
writing by both shall be binding upon all of the parties to this
Agreement. The premises shall have a manager ("Manager") who shall
be designated pursuant to Section 3.2 hereof. The Manager shall
be responsible for the implementation of the decisions of STEVENS
and CITY and for~conducting the ordinary and usual business and
affairs arising out of, or in connection with, the premises.
(b) No act shall be taken, sum expended, or obligation
incurred by the Manager or any party hereto with respect to a
matter affecting the premises unless such action, expenditure or
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incurrance has been approved in writing by STEVENS and CITY.
3.2 Appointment of Manager. STEVENS and CITY, or their
successors in interest,- shall have ~he right to appoint, discharge
or replace the Manager by mutual written agreement.
3.3 Duties of Manager.
(a) The Manager, or any replacement thereof, shall im-
plement or cause to be implemented all decisions approved by both
STEVENS and CITY in accordance with and as limited by this Agreement,
including the following:
~ (1) Negotiate and, when approved in writing by
STEVENS and CITY, enter into and supervise the performance of con-
tracts covering the construction and/or completion or any improve-
ments, to the premises;
'(2) Keep all books of account and other records in
connection with the'premises;
(3) Prepare and deliver to each of the parties here-
'to periodic reports of the state of the affairs arising out of, or
in connection with, the premises;
(4) Retain or employ and coordinate the services
of any and all employees, supervisors, architects, custodial and
maintenance personnel, engineers, accountants, attorneys, real
estate management agents and other persons necessary 'or appropriate
to perform the maintenance as may be required on the premises.
(5) Pay the debts and other obligations arising out
of the premises approved in writing by STEVENS and CITY, including
costs of approved construction and maintenance of the premises;
(6) During the Germ of this Agreement, Manager
shall promptly comply with all present and future laws, ordinances,
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orders, rules, regulations and requirements of all federal, state
and municipal governments, courts, departments, commissions, boards
and officers, which may be applicable to the premises.
(7) Perform other normal maintenance in connection
with the premises and its operatio~ in accordance with and as
limited by this Agreement; and
(8) Perform any other obligations provided else-
where in this Agreement to be performed by the Manager.
(b) Notwithstanding any provision hereof to the contrary,
except for expenditures-made and obligations inc6rred in direct pur-
suance of a Budget or an agreement theretofore approved by the
STEVENS and CITY, the Manager shall not have any authority to make any
expenditure or incur any obligation arising out of, or in connection
with, the premises or its operation involving in the aggregate for
each such transaction or group of similar transactions, which in any
twelve (12) month period would exceed the sum of $200.00. The Manager
shall not expend more than a reasonable sum of money for any goods
purchased or services engaged in connection with the premises nor
pay any salary, wages, and fringe benefits to any of the officers,
shareholders, directors, employees or members of any party hereto
unless previously approved by all parties.
3.4 Budgets. Not less often than one time each fiscal year
(July 1 to June 30), the Manager shall prepare, and not less than
Sixty (60) days prior to the close of the fiscal year, submit to
STEVENS and ciTY for their consideration an annual budget ("Budget")
setting forth the estimated receipts, if~any, and costs and ex-
penses (including necessary capital, operating expenses and reason-
able contingencies and reserves) arising out of or in connection
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with the premises for the next fiscal year. When approved by
STEVENS and CITY, Manager shall implement the Budget and shall be
authorized, without the need for further approval by the Parties
hereto, to make the expenditures and incur the obligations pro-
vided for in the Budget and to assess the parties for their share
of the costs and expenses arising out of or in connection with the
premises. If within thirty (30) days after their receipt of the
proposed Budget, STEVENS and CITY have not disapproved the Budget
submitted by the Manager, it shall be deemed approved.
3.5 Compensation to Parties. Except as may be expressly pro-
vided for herein, no payment will be made to any party hereto for
the services of such party or to any member or employee of any
party.
3.6
Accounting.
(a) The fiscal year used in connection with the premises
shall commence on July 1 of each year.
(b) The books of account maintained in connection with
the maintenance of the premises shall be kept and maintained at
all times at a place approved by STEVENS and CITY. The books of
account shall be maintained on an accrual basis in accordance with
generally accepted accounting princiPles, consistently applied,
and shall show all items of income and expense.
i(c) The Manager shall prepare and furnish to each of
the parties hereto promptly after the close of each fiscal year'
an unaudited statement, certified by Manager to be true and correct
to the best-of his knowledge and belief, showing the receipts, if
any, and disbursements arising out of or in connection with the
premises for the preceding year, the unpaid balance due under
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all obligations in connection with the premises, and all other
information reasonably requested by any party hereto.
3.7 Inspection of Accounts. Each Party hereto shall have the
right at all reasonable times during usual business hours to audit,
examine, and make copies of or extracts from the books of account
maintained in connection with the premises. Such right may be
exercised through any agent, representative or employee of such
party. Each party shall bear all expenses incurred in any examin-
ation made for such accounting.
3.8 Bank Accounts. All funds arising out of, or in connec-
tion with, the premises shall be deposited in an account with such
designation and in such bank or banks as shall be appro, ved by
STEVENS and CITY. Withdrawals from bank accounts shall be made
by the Manager. STEVENS and CITY agree to at all times maintain
an adequate balance in said account(s) to meet all obligations
arising in connection with premises provided such obligations
have been approved by them in writing.
3.9 Division of Costs. Except as provided to the contrary
herein, STEVENS or its successors in interest shall pay 61.62% and
Agency shall pay 38.38% of all costs and expenses arising out of
the maintenance of the premises.
3.10 Covenants for Maintenance Costs. STEVENS and AGENCY
hereby covenant and agree to pay to Manager all costs of main-
taining the premises ("Maintenance Costs") pursuant to the terms
of this Agreement. All such Maintenance Costs, together within-
terest, costs, and reasonable attorney's fees, shall be a separate,
distinct and personal obligation of the respective parties at the
time it is due, and shall bind such party's heirs, successors in
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interest, personal representatives and assigns.~ No party may ex-
empt itself from personal liability for such Maintenance Costs
levied on such party pursuant to this Agreement, nor release its
interest in the premises from the liens and charges hereof, by
waiver of the use and enjoyment or abandonment of the premises.
The obligation to pay Maintenance Costs by a party having the fee
title in the premises shall burden the premises and such obligation
shall run with the land.
3.11 Determination of Maintenance Costs. The annual Mainten-
ance Cost shall be equal to the Annual Budget approved by STEVENS
and AGENCY as amended from time to time by their written agreement.
STEVENS and AGENCY shall pay to the Manager his annual Maintenance
Cost in installments at monthly intervals, or at such frequency
and in such amounts as may be established by the Manager and
approved by STEVENS and AGENCY.
3.12 Collection of Maintenance Costs. From and after the first
day of the'first month following execution of this Agreement the
Manager shall fix and collect from STEVENS and AGENCY their pro rata
share of the Maintenance Costs. At the end'of any fiscal year, .
STEVENS and AGENCY may determine that all excess Maintenance Cost.
funds may be returned to STEVENS and AGENCY proportionately, or may
be retained by the Manager and used to reduce the following year's
Maintenance Costs. In any voluntary or involuntary conveyance of
an interest in the premises, the. transferee ("Purchaser") shall be
jointly and severally liable with the previous owner ("Seller") for
all unpaid installments .of Maintenance Costs levied by the Manager
against the Seller up to the date of' Close of Escrow of the grant
or conveyance, without p~ejudice to the right,of the Purchaser to
collect from'the Seller therefor. However, any such Purchaser
shall be entitled to a statement from the Manager, setting forth
the amount of the unpaid Maintenance Costs against the Seller;
and such Purchaser shall not be liable for, nor shall the interest
conveyed be liable for any unpaid Maintenance Costs levied by the
Manager against the Seller in excess of the amount set forth in
the statement; provided, however, that the Purchaser shall be per-
sonally liable for any and all installments of Maintenance Costs
and other charges becoming due after Close of Escrow.
3.13 Delinquency. Any installment of Maintenance Costs pro-
vided for in this Agreement shall become delinquent if not paid
on the due date as established pursuant to this Agreement. With
respect to each installment of Maintenance Costs not paid within
ten (10) days after its due date, the Manager may, at its election,
require the delinquent party to pay a. late charge of ten percent
(10%) of the amount of the delinquent installment, together with
interest at the maximum rate permitted by law on such delinquent
sums, calculated from the date of delinquency to and including
the date full payment is received by the Manager. If any install-
ment of Maintenance Costs is not paid within thirty (30) days after
its due date, the Manager may mail a notice to the party, which
notice shall specify (1) the fact that the installment is delinquent;
(2) the action required to cure the default; (3) a date, not less
than thirty (30) days from the date the notice if mailed to the
party by which such default must be cured; and (4) that failure to
cure the default on or before the date specified An the notice may .
result in acceleration of the balance of the installments of the
Maintenance Costs for the then current fiscal year and sale of
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said party's interest in the premises. The notice shall further in-
form the party of his right to cure after acceleration. If the
delinquent installments of Maintenance'Costs and any charges thereon
are not paid in full on or before the date specified in the notice,
the Manager may declare all of the unpaid balance of the annual
Maintenance Costs for the then current fiscal year attributable to
that party and its interest in the premises to be immediately due
and payable without further demand and may enforce the collection
of the full Maintenance Costs and all charges'thereon in any manner
authorized by law and this Agreement.
3.14 Notice of Lien. The Manager may cause to be recorded
in the Office of the County Recorder of Orange County a Notice of
Assessment ("Notice of Lien") securing the payment of any Maintenance
Costs, or installment thereof, levied by the Manager against any
party having an interest in the fee title to the premises. Such
Notice of Lien shall state the amount of such-Maintenance Cost or
installment, as the case may be, and other authorized charges and
interest, including the cost of preparing and recording such Notice
of Lien, the expenses of collection in connection with any delin-
quent installments, including, but not limited to, reasonable
attorneys' fees, a sufficient description of the interest therein
against which the same has been assessed, the name of the party
thereof, and the name and address of the Manager. Such Notice of
Lien shall be signed by the Manager, or the Manager's attorney(s)
then representing the Manager. Upon payment to the Manager
of the full amount claimed in the Notice of Lien, or other satis
faction thereof, the Manager shall cause to be recorded a Notice of
Satisfaction and Release of Lien ("Notice of Release") stating the
satisfaction and release of such amount claimed. The Manager may
demand and receive from the applicable party a reasonable charge
for the preparation and recordation of such Notice of Release be-
fore recording the same. Any purchaser or encumbrancer, who has
acted in good faith and extended value, may rely upon such Notice of
Release, as conclusive evidence of the full satisfaction of the sums
stated in the Notice of Lien.
3.15 Enforcement of Liens. All sums assessed in accordance
with the provisions of this Agreement'shall constitute an assessment
lien on the respective interest of the party having a fee interest
in the premises prior and superior to all other liens, except (1)
all taxes, bonds, assessments and other levies which, by law, would
be superior thereto. Such assessment liens shall become effective
upon recordation of the Notice of Lien in the manner provided in
Section 3.14. It shall be the duty of the Manager to enforce the
collection of any'amounts due under this Agreement by one or more
of the alternative means o~ relief afforded by this Agreement.
Assessment liens may be enforced by sale of the interest of a party
having a fee title in the premises by the Manager, its attorney
or other person authorized to make the sale, after failure of said
party to pay the Maintenance Costs, or installment thereof, as pro-
vided herein. Such sale shall be conducted in accordance with the
provisions of the California Civil Code, applicable to the exercise
of p6wers of sale in mortgages and deeds of trust, or in any manner
permitted by law. An action may be brought.by the Manager or any
other party to this. Agreement to foreclose said assessment lien
after the expiration of at least thirty (30) days from the date on
which the Notice of Lien was recorded; provided that at least ten
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(10) days have expired since a copy of the Notice of Lien was
mailed to the party affected thereby, and subject to the provisions
of Section 3.13 in the event that the ~anager accelerates the due
date of any Maintenance Cost install ments. A suit to recover a
money judgment for unpaid Maintenance Costs shall be maintainable
without foreclosing or waiving the lien securing the same, but this
provision or any institution of suit to recover a money judgment
shall not constitute an affirmation of the adequacy of money damages.
Any recovery resulting from a suit in law or equity initiated pur-
suant to this Section may include reasonable attorneys' fees.
3.16 Repair and Maintenance Duties of ~anager. The ~anager
shall maintain, repair, replace and resurface the premises as re-
quired to keep the premises in a good, sanitary, attractive and safe
condition. Such maintenance and repairs shall include, without
limitation, repair and maintenance of all streets, parking areas,
walks and other means of ingress and egress within the premises.
ARTICLE 4
INSURANCE
4.1 Duty to Obtain Insurance; Types. Manager, in the name
of STEVENS, its successors in interest, CITY and AGENCY shal~ ob-
tain and continue in effect adequate blanket public liability
insurance (including medical payments) in an amount not less than
One Million Dollars ($1,000,000.00), covering all claims for personal
injury and property, damage arising out of a single occurrence to
the premises. MANAGER shall also obtain and continue in effect
fire insurance-with,extended coverage in an amount as near as
poss%ble'to the full replacement valUe of the premises without
deduction for dePreciation.
MANAGER shall purchase such other
insurance, as necessary, including but not limited to, errors and
omissions, medical payments, malicious mischief, and vandalism
insurance, fidelity bonds and workme~'s compensation, and other
risks as may customarily be covered with respect to similar premises.
All such policies of insurance maintained by the Manager shall con-
tain a provision that said policy or policies shall not be cancelled
or terminated, nor expire by their terms, without thirty (30) days'
prior written notice to all additional named insureds and every
other person or entity who shall have requested such notice of
the insurer. All policies of physical damage insurance shall pro-
vide, if reasonably possible, for waiver of the following rights,
to the extent that the respective insurers would have the rights
without such waivers: (a) subrogation of claims against the
parties hereto; (b) any defense based on co-insurance; (c) any
right of set-off, counterclaim, apportionment, proration or
contribution by reason of other insurance carried by the parties;
(d) any invalidity, other adverse effect or defense on account of
any breach of warranty or condition caused by any party or arising
from any act, neglect~ or omission of any named insured or the
respective agents, contractors and employees of any insured; (e)
any right of the insurer to repair, rebuild or replace and, in the
event the premises are not repaired, rebuilt or replaced following
loss, any right to pay under the insurance an amount less than the
replacement'value of the improvements insured or the fair market
value thereof; and (f) notice of the assignment of any party of
its interest in the insurance by virtue of a conveyance of
interest in the premises. All costs in obtaining and maigtaining
the forms of insurance described in this Section 4.1 shall be borne
by the parties hereto in the same proportion as described in Section
3.9 above.
ARTICLE 5
DAMAGE OR LOSS TO IMPROVEMENTS
5.1 Restoration of Premises. Except as otherwise provided
in this Agreement, in the event of any destruction of any portion
of the premises, it shall be the duty of STEVENS, its successors in
interest, and CITY to restore and repair the same to its former
condition, as promptly as practical. The proceeds of any insurance
maintained pursuant to Article 4 hereof shall be used for such
purpose, unless otherwise provided herein. The premises shall be
reconstructed or rebuilt substantially in accordance with the
original construction plans if they are available, with such
changes as are agreed to by all parties. In the event that the
amount available from the proceeds of such insurance policies
for such restoration and repair shall be less than the estimated
cost of restoration and repair, the insurance proceeds available
shall be applied to said reconstruction. To the extent of any
reconstruction expenses in excess of said insurance proceeds,
such expenses shall be shared in the same proportion as the
maintenance costs'as specified in paragraph 3.9 of this Agreement.
ARTICLE 6
TERM
6.1 The term of this Agreement shall be 55 years, provided,
however, the term shall be automatically extended ten years at the
end of the original term and ~en years at the end o~ each exten-
sion thereof unless the parties hereto, or successors to said
parties agree in writing prior to the end of the original or ex-
tended terms that the teLm of this Agreement shall not be extended.
ARTICLE 7
USE RESTRICTIONS
7.1 Permitted Uses. Ail parties hereto agree that no part
of the area described in Exhibit "A" hereto shall ever be used or
caused to be used or allowed or authbrized in any way, directly'
or indirectly, to be used for any purpose other than for a
pedestrian and vehicular traffic mall and plaza.
7.2 Nuisances. No noxious or offensive trade or activity
shall be Carried on upon any part of the mall and plaza area des-
cribed in'Exhibit "A" nor shall anything be done thereon which
shall in any way increase the rate of insurance required under
this Agreement. Electrical reflectors, spot lights, flood lights '
and other methods of illumination may be used to illuminate
buildings, 'signs for the adjacent parking 'areas, provided that any
such illumination shall be previously approved by all the parties~
hereto or their successors in interest.
7.3 Signs. No sign, p~ster, billboard o~ other advertising
of any kind shall be permitted on any'portion of the mall and
plaza area, except such signs ~hat identify the name, place and
price of Parking for the parking areas advertised and which are
of a size, design, color and style as shall be previously approved
by the parties hereto or their' successors in interest.
7.4 Storage and Waste. All rubbish, trash, garbage and
other waste shall be regularly removed from the mall and plaza
area and shall not be allowed to accumulate thereon. No refuse
containers shall'be maihtained on the mall and.plaza area other
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than in the location and manner provided for by the Manager, and
no storage area Shall be kept or ~maintained on the mall and plaza
area without the prior approval of the Manager.
7.5 Temporary Structures and Obstructions. No structure of
a temporary character, trailer, camper, boat or any machinery or
equipment shall be permitted to remain on the mall and plaza area
without the prior approval of the Manager. There shall be no ob-
struction of any walkway or driveway in the mall and plaza area
which would interfere with the Circulation of foot or automobile
traffic, except such obstruction as may be reasonably required in
connection with repairs of such driveways and walkways.
ARTICLE 8
GENERAL PROVISIONS
8.1 Amendment. This Agreement may not be amended except by
way of a written document executed by all parties, and/or their
successors in interest.
8.2 Legal Proceedings. Failure to comply with any of the
terms of this Agreement by a party, his guests, customers, employees,
invitees or lessees, shall be grounds for relief which may include,
without limitation, an action to recover sums due for damages, in-
junctive relief, or any combination thereof. Failure to enforce
any provision hereof shall not constitute a waiver of the right to
enforce said provision, or any other provision hereof. Any party
shall be entitled to bring an action for damages against any de-
faulting party, and in addition may enjoin any violation of this
Agreement. Any judgment rendered in any action or proceeding
pursuant thereto shall include a sum for attorneys' fees in such
amount as the Court may deem reasonable, in favor of the prevailing
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party,'as well as the amount of any delinquent payment, together
with interest, costs of collection and court costs. Each remedy
provided for in this Agreement shall be cumulative and not ex-
clusive or exhaustive.
8.3 Severability. The provisions hereof shall be deemed in-
dependent and severable, and a determination.of invalidity or par-
tial invalidity or enforceability of any one provision or portion
here6f by a court of competent jurisdiction shall not affect the
validity or enforceability of any other provisions hereof.
8.4. Interpretation. The Provisions of this Agreement shall
be liberally construed to effectuate its purpose of creating a
uniform plan for the maintenance of ~the premises, and any violation
of this Agreement shall bedeemed to be a nuisance. The article
and section headings, titles and ~aptions have been inserted
for convenience only, and shall not be considered or referred
to in resolving questlons of interpretation or construction. As
Used herei9, the singular shall include the plural and the mas-
culine, feminine and neuter shall mean the same.
8.5 Notices. Except as Otherwise provided in. this Agreement,
in each instance in which notice is to be given to a party, the same
shall be in writing and may be delivered Personally'to the party.
Personal deliverY of such notice to any office or agent for the
service of process on a corporation shall be deemed delivery to
the corporation. Iniieu of the' foregoing, such notice may be de-
livered by regular United States mail, postage prepaid, addressed
to.the party at the most -recent address furnished by such party to
the remaining parties or, if no such addr~s~ shall have been fur-
nished, to the street address noted below. Such notice shall be
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deemed delivered forty-eight (48) hours after the time of such
mailing.
8.6 Binding on Successors. This Agreement shall be binding
upon and inure to the benefit of all successors and assigns of the
parties. CITY and AGENCY acknowledge and agree that STEVENS' in-
terest in this Agreement can be assigned to the Non-Profit Mutuai
Benefit Corporation created as a result of STEVENS' development
of the office condominium project to be located adjacent to the
mall and plaza area, provided that said Non-Profit Mutual Benefit
Corporation agree in writing to assume all of the obligations of
STEVENS arising out of this Agreement.
8.7 Nondiscrimination. The p~rties to this Agreement covenant
and for themselves, their 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, national origin, or,ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure, o_r. enjoyment of the
premises, nor shall the parties hereto or any person claiming
under or through them, 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 premises. The foregoing
covenants shall run with the land.
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THIS AGREEMENT has been executed on this
· 1982~ at Tustin, California.
TUSTIN REDEVELOPMENT AGENCY STEVENS SQUARE
a municipal entity
day of
a California limited partnership
By
By Gfeller Development Company,
Inc., a California corpqration
as General Partner
By
By
Douglas M. Gfeller, President
Address:
Address:
RLL:Sl:D:01/25/82 (A-24)
RLL:sl:R:01/27/82 ~
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