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HomeMy WebLinkAboutOB 1 GFELLER DEVELOP 02-16-82DATE: February 10, 1982 OLD BUSINESS No. 1 2-16,-82 Inter-Corn TO: FROM: SUBJECT: HONORABLE MAYOR AND CITY COUNCIL BILL HUSTON, CITY MANAGER GFELLER DEVELOPMENT RECOMMENDATION: That the City Council authorize the following: The Mayor to execute the final form of the agreements between the City and Gfeller Development Co. for the parking structure and mall and plaza. e A loan from the General Fund to the Redevelopment Agency in the amount of $350,000, to be repaid in three years at 12% interest (or whatever higher rate is authorized by state law and subsequently approved by the City Council), said loan to supplement Agency funds allocated for the parking structure. e The Redevelopment Agency to allocate an additional $83,743 from the Agency unrestricted fund balance to supplement the $250,000 currently budgeted for the parking structure and the $350,000 loan. DISCUSSION: The City Attorney has submitted a memorandum, a copy of which is attached, which outlines the final form of the parking structure lease and option agreements and mall and plaza agreement. The mall and plaza agreements provide that the City will contribute $50,000 towards their construction, with Gfeller Development responsible for all maintenance. In approving the initial agreements, the City Council indicated its intent to exercise the option to purchase the City's share of the parking structure as soon as possible in order to avoid interest costs during the construction period. However, subsequent to the February 1, 1982 meeting, it was determined that the City would be unable to purchase the parking structure at the outset. Essentially, the City is unable to work out an arrangement wherein the City would have an adequate pledge of security granted by Gfeller Development during the construction period. This is not because Gfeller Development does not want to assist in determining the form of security. Because of Gfeller Development Company's loan arrangements for the office project, it would not be possible for the City to obtain a first deed of trust (for the property upon which the parking structure will be situated) which the City considers the most desirable form of security. DATE: 2/12/82 Inter-Corn T0: WILLIAM HUSTON, CITY MANAGER FROM: JAMES G. ROURKE, CITY ATTORNEY SUBJECT: PARKING STRUCTURE MESSENGER DELIVERED Pursuant to our telephone conversation this morning, enclosed are copies mak[nq two m[n0r chan§es. Re: option. Agreement & Escrow Ins%ructions: A new page 5: This changes the dollar amoun% in the fifth line from the top from $9,510.00 to $10,377.00. Re: Mall & Plaza Agreement: Last line on page 17: This changes Exhibit F to Exhibit E. Please have these pages Substituted. JGR: se: D: 2/12/82 Enclosures DATE: February 10, 1982 OLD BUSINESS No. 1 2-16,-82 Inter-Corn TO: FROM: SUBJECT: HONORABLE MAYOR AND CITY COUNCIL BILL HUSTON, CITY MANAGER GFELLER DEVELOPMENT RECOMMENDATION: That the City Council authorize the following: The Mayor to execute the final form of the agreements between the City and Gfeller Development Co. for the parking structure and mall and plaza. A loan from the General Fund to the Redevelopment Agency in the amount of $350,000, to be repaid in three years at 12% interest (or whatever higher rate is authorized by state law and subsequently approved by the City Council), said loan to supplement Agency funds allocated for the parking structure. The Redevelopment Agency to allocate an additional $83,743 from the Agency unrestricted fund balance to supplement the $250,U00 currently budgeted for the parking structure and the $350,000 loan. DISCUSSION: The City Attorney has submitted a memorandum, a copy of which is attached, which outlines the final form of the parking structure lease and option agreements and mall and plaza agreement. The mall and plaza agreements provide that the City will contribute $50,000 towards their construction, with Gfeller Development responsible for all maintenance. In approving the initial agreements, the City Council indicated its intent to exercise the option to purchase the City's share of the parking structure as soon as possible in order to avoid interest costs during the construction period. However, subsequent to the February 1, 1982 meeting, it was determined that the City would be unable to purchase the parking structure at the outset. Essentially, the City is unable to work out an arrangement wherein the City would have an adequate pleage of security granted by Gfeller Development during the construction period. This is not because Gfeller Development does not want to assist in determining the form of security. Because of Gfeller Development Company's loan arrangements for the office project, it would not be possible for the City to obtain a first deed of trust (for the property upon which the parking structure will be situated) which the City considers the most desirable form of security. Because of this limitation, the. City Attorney and staff have determined it would be in the City's best interest to enter into the lease and purchase the City's share of the parking structure upon its completion. It is important to note this is the arrangement which was approved in concept when the City and Gfeller Development initially agreed upon the joint venture. Unfortunately, through no fault of the City or Gfeller Development, an immediate purchase cannot be effectuateU. The financial implication is the cost of construction financing which will be approximately $49,000. This amount represents approximately 18.5~ interest on the estimated construction cost of $634,743 and 1 1/2 points for the loan. In addition to the cost of construction financing, an additional $30,000 (this amount is included in the $634,743 construction estimate) has been included for installing a fire sprinkler system. Since ground level parking will be approximately four feet below grade, there will be no exterior openings at the ground level except at the C Street frontage. In order to meet building and fire code requirements a sprinkler system must be included. The alternative would be to reduce the size of the parking structure, however, approximately twenty parking stalls would be lost. Despite the additional costs of construction financing and a fire sprinkler system, the City's share of the cost of the parking structure is reasonable. It is important to keep in mind that the City is avoiding the cost of land acquisition and is providing additional parking necessary to encourage and stimulate sound development in the Old Town area. AGREEMENTS WI'LL FOLLOW IN SUPPLEMENTAL PACKET. DATE: 2/12/82 Inter - C om TO: WILLIAM HUSTON, CITY MANAGER FROM: JAMES G. ROURKE, CITY ATTORNEY SUBJ£CT: PARKING STRUCTURE MESSENGER DELIVERED Pursuant to our telephone conversation this morning, enclosed are copies making two minor changes. Re: Option Agreement & Escrow Instructions: ~ new page 5: This changes the dollar amount in the fifth line from the top from $9,510.00 to $10,377.00. Re: Mall & Plaza Agreement: Last line on page 17: This changes Exhibit F to Exhibit E. Please have these pages substituted. JGR: se:D: 2/12/82 Enclosures aouo!%d0 Kq pa~OAO00l SO~Eump pa~p~nb!t puE ss~hn~] (~) · uo!~on~%suc0 ~o %sc0 Sq% luo~ p~onp~p sq IIzqs '~ums ~noos o~ sdg~s K2z~sso~u @q% @%n~ II~qs Jouo~%do pu~ 's~n~on~%S ~u~F<f @q~ ~o ~o!~on~s~oo ~o ~Ins~ ~ s~ aouo!%d0 0% p9naooE spur{~8/ pu~ s~Eqsg ~s%unoos!Q (9) Io uo!%ona%suoo 8q$ o~ ps~nq!a%~ $!toad KnV ao sagu%aEd ~sg9u~o ~sJgo!~jO ~o no!~Esu~d~c0 · pu!~ XnE to s9sn9d×~ I~a9us~ go pE~qa~^0 · aouor~d0 ;o (s) ao a%!s-uo s,.[o~o!$do ~u!%wa~do ao~ sssuadx~ (i) obligations of STEVENS arising out of this Agreement. 8.7 Nondiscrimination. The part~es 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, or enjoyment of the Premises, nor shall the parties hereto or any person claiming under or through them, establish o~ 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. 8.8 Recordation. A copy of this Agreement, or a Memorandum thereof, may be recorded by any party hereto. Should any party desire to record a Memorandum of this Agreement, each of the parties agree to execute the same in such a manner as is required for recording the same. 8.9 Covenants Running With the Land. The benefits of this Agreement shall run with the land underlying the office condo- minium project described herein on Exhibit E attached hereto and incorporated hereby by this reference, with the land under- lying the parking structure described on Exhibit F attached hereto and incorporated herein by this reference, and the Premises. The burdens of this Agreement shall run with the land described herein on said Exhibit E. -17- :)ATE: TO: Feb. 11, 1982 Inter-Corn FROM: SUBJECT: HONORABLE MAYOR AND' CITY COUNCIL BILL HUSTON, CITY MANAGER STEVENS SQUAR~ PARKING STRUCTURE, MALL AND ~- 'MENTS The Council has received a memorandum in f.j~ agreements. The following supplemental i', Memorandum.from the City Attorney above Letter from the attorney for Steve,,~ Square. Parking structure lease. Option agreement and escrow instructions. Declaration of Covenants, Conditions, Restrictions and Reservations of Easements. Mall and Plaza Agreement. The Mall and Plaza Agreement will be executed by the Mayor and Gfeller Devel- opment on Friday, February 12, 1982, thereby allowing Gfeller Development's contractor to commence work on the mall and Plaza. The City Council had approved the mall and plaza agreement with the stipulation that the agreement provide that Stevens Square shall be responsible for maintenance of the mall and~aza. The final form of the agreement so provides. With regard to the Parking Structure Lease and Option AgreemeNt, the Mayor feels the Council should consider them before they are executed in their final form. The differences between the lease and option agreements considered by the Council at its last meeting and the attached agreements are discussed in the memorandums from the Cit~ Manager and City Attorney. (The City Manager's memorandum is in the Council packet and the City Attorney's memo is attached) OAT[: 2/11/82 Inter -Corn L TO: FROM: SUB J ECT: WILLIAM HUSTON, CITY MANAGER JAMES G. ROURKE, CITY ATTORNEY STEVENS SQUARE PARKING STRUCTURE Enclosed are the originals and two copies of the following docu- ments: Parking Structure Lease Option Agreement and Escrow Instructions Declaration of Covenants, Conditions, Restrictions and Reservations of Easements Mall and Plaza Agreement Delivery letter of attorney Bruce Charles These documents are now in final form (except as noted below) and bare been approved by the attorneys for Gfeller Development Company and by this office, having been substantially revised in various respects since the drafts that were in hand on February 1st. Originally the documents were based on the premise that approxi- mately eighty-one spaces in the parking structure would be leased by the Redevelopment Agency from Gfeller Development until such time as the Redevelopment Agency found it possible and desirable to purchase those spaces. Subsequently it was decided that it would be possible and more financially desirable if the Redevelopment Agency could pay the purchase price for the interest in the parking structure at the very outset of the transaction, thus saving interest and points on a construction loan. An attempt was made to work out a procedure whereby this could be done while still meeting all of the Agency's legal obligations and requirements of adequate security. Attempts to work out procedures to attain these goals were not successful and we have had to fall back to the original concept of a lease and option. However, the trans- action is now structured in such manner that the Redevelopment Agency will purchase its interest in the parking structure as soon as the structure is complete and the title company can insure unencumbered title in the Redevelopment Agency. Further developments have been that it now appears certain that the parking structure must be sprinklered,which of course will result in an increased option-purchase price, and the construction loan interest rate and loan points have been fixed. We would request that a copy Of each of these documents be provided at once to the involved members of the City staff, e.g. Mike Brote- markle, Ron Nault and Robert Ledendecker and that they each carefully review the documents insofar as they pertain to their particular areas of involvement. We would ask that any comments, requests, suggestions, or questions of the staff be given to us at once. We would suggest that copies of each of these documents be furnished to the City Council as soon as possible. Gfeller Development wants to start construction on the parking structure as soon as the agreements are signed, which they hope might be today. Gfeller Development understands that the only existing authorization for execution of the agreements is that which was given by the Agency at its meeting of February 1st and it limits the obligation of the Agency to $600,000.00. It is for that reason that the agreements provide for maximum obligation of the Agency of $600,000.00 but the delivery letter of the attorneys for Gfeller Development provides that Gfeller Development may rescind the agree- ments if the Council does not within ten days authorize the increase of the maximum obligation of the Agency to $634,734.00 plus the construction loan points and interest, which would mean a total maximum of approximately $702,000.00. we will need to have the original and three copies of ea-h of the documents signed by the Mayor and City Clerk. JGR:se:D:2~10/82 Enclosures as cited. BALDiKOSKi, KLOTZ & DRAGONETTE February 10, 1982 ~ESSENGER D~_.IVERY James G. 'Rourke, Esq. Rourke & Woodruff Suite 109.0 California First Bank Building 1055 North Main Street Santa Aha, California 9~701 Re: Stevens Square/Tustin Redevelopment Agency Parking Structure Agrccmen~s Purs-~t to our conference on February 8, 1982 at the Tustin City Hall and the red-lined revisions to the Lease, Option and CCR's your office recently delivered to our office, enclosed herein please find four (4) copies each of the following doct~ents in final form ready for execution: I. Option Agreement and Eecrow Instructions, 2. Parking Structure Lease; and Declaration of Covenants, Conditions and Restric- tions and Reservation of Fasements for Stevens Square Parking Structure. /his letter will also serve to confirm our understanding and agreement that the enclosed Option Agrcc~nent has been prepared using a figure of $600,000.00 in Section 2.1(b) only so that this doct~ent may be executed at the present time and that in~ediately following said execution, the City of T~stin will take such steps as are necessary to- approve the a~end~ent of this document such that the $600,000.00 figure contained in Section 2.1(b) will be revised upward to an amount equal to the sum of $634,743.00 and the cost of interest, "Doints" and insurance premiums now described in Sections 2.1(c)(6) and (7). It is also understood and ~reed that if for any reason the City of Tustin does not approve the amendment noted above within ten (10) days after the date hereof, Stevens Sql!are reserves the right to rescind the enclosed Lease and Option Agrc~-~nents within thirty (30) days thereafter. ~ALDIKOSKI, KLOTZ & D~AGONETTE l:~ge 2 Febr, m~-y 10, 1982 If the foregoing acurately reflects our understanding snd agree- ment as to the matters described above, I would appreciate it if you and the City authorities executing all four (4) copies of both the Lease and Option Agrccments would execute a copy of this letter where aoted below along with the Lease and Option Agreements, notify me iamediately upon the execution of the doc%~ents, whereupon I will contact Bob Reese and arrange for his im~,ediate execution of s~id doc~nents. If you should have any questions on the foregoing~ please do not hesitate to contact me. ~o,nk you for your courtesy and cooperation in this matter. Very truly yours, BALDIKOSKI, KLOTZ & DRAGONETrE cc: Douclas ~. Gfeller ~he foregoing accurately reflects our understanding and agrccment as to the execution -nd effectiveness of the above-described Lease and Option Agrc---~ments and the execution and effectiveness of said Agree- ments are conditioned upon the terms noted above. ~urke&Woed~f JamesG.~urke ~ty~torney~ityofTustin CITY OF TUSTIN TUSTIN N~EVELOt~ENT AGENCY PARKING STR~ LEASE 1. Parties. Tais A~reement is entered into as of this day of , 1989., between STEVENS SQUARE, a California limited partnership (hereinafter referred to as "Lessor") and TUSTIN COMMUNITY REDEVELOPMENT AGENCY, a statutory entity within the City of Tustin~ to wit a California Co~a,,~nit¥ Redevelopment A~ency (hereins.fter referred to as "Lessee"). 2o Premises o (a) Subject to the terms herein Lessor does hereby lease to Lessee and Lessee hereby leases from Lessor those certain portions of a parking structure (hereinafter referred to as '~Premises")~ said Premises being a~rcc.~ for the purposes of this Lease, .to be an area of approx- imately 81 parking sp~ces as per Exhibit "C' and being situated on a portion of the upper level of that certain parking structure (herein- after referred to as the "Parking Structure") to be constructed by Lessor on real property located on "~' Street near Main Street, Tustin, California. Said Pr~mises and real property (hereinafter referred to as "Real Property") are described with more particularity in Exhibits "A" and "B"; respectively, attached hereto and incorporated herein by this reference. Lessor shall erect, or cause to be erected, said Parking Structure in accordance with plans and specifications now on file with .the City of Tustin, minor deviations excepted. (b) Lessor shall give Lessee notice of the reasonably contemplated date of completion, occupancy and use of the parking structure in writing at least thirty (SO) days in advance of the comple- tion of the I>arking Structure, and the rental hereunder shall commence 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. I~mmdiately 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 alterations, 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 possession 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 herein set forth and Lessee 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-five (25) spaces,' together with co~mon non- exclusive rights of access for ingress thereto and egress therefrom (as -2- described with more particularity in Exhibit "D" 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 9arties hereto a~ree that Lessee and its offi- cers, el~loyees, a~emts and invitees have the exclusive right to use the Pre~nises, together with the non-exclusive rights of ingress thereto and egress therefrom. (e) By virtue of the several doc~nents being entered into concurrently herewith by the parties, Lessor shall: (a) construct at its ow~ cost a Parking Structure in comDliance with the Dlans and specifications on file with City, minor deviations exceDted; (b) cause a Parking Structure Condominium to be created in accordance with the Declaration of Covenants, Conditions, Restrictions and Reservations attached to certain of the said Agreements; and (c) convey without consideratio.n the various tenancy in cot/non interests in the Real Property to the Stevens Sq,~e Parking Structure condominium owuers, to-wit, iessor/Optionor and Lessee/Optionee, as tenants-in-co~mon. Concurrent with the execution hereof, Lessor and Lessee have entered into an Option Agreement whereby Lessor, as Optionor, has Eranted to Lessee, as Optionee, the exclusive right to purchase a certain condomi- nium interest in the Parking Structure coupled with the exclusive right to the use of the Premises, more particularly designated as Unit No. 1 in the Declaration of Cdvenants, Conditions and Restrictions for Stevens -3- Square I~rkin~ Structure Condomini~ Association, which doc~nent is attached to the Option A~reement attached hereto as Exhibit "F' and incorporated herein by this reference. (f) Lessee acknowledEes that Lessor intends to assi~.a and transfer its interest in the Parkin$ Structure, to-wit, Unit 2 to Stevens Square Association, a non-profit r~utual benefit corporation. Lessor a$rees, represents and warrants that the transfer of the ParkinE Structure to Stevens Square Association will be subject to each, every add all of Lessee's riChts hereunder and further subject to Lessee's rights to acquire the condominiu~ interest described in Paragraph (e) above. Lessor a~rees that concurrently or prior to Lessee's acquisition of said condomini~n interest the Covenants, Conditions and Restrictions described in paragraph (e) above will be recorded in the Office of .the County Recorder of O~ange County, California. 3. Term. The term of this Le~se shall commence as of the date of execution of this Lease and terminate thirty (30) years thereafter. 4. Possession. (a) If Lessor, for any reason whatsoever, cannot deliver possession of the said Premises to Lessee on the date noticed to Lessee purs,~-nt to Section R(b) above, this Lease shall DOt be void or void- able, nor shall Lessor be liable to Lessee for any loss or damage resultin~ therefrom, nor shall the expiration date of the above term be in any way extended, but in that event~ all rent shall be abated durin~ the period between 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 time as Lessor can deliver. possession of the Premises to Lessee. (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 demand, for the Premises, the sum of Ten Thousand Seven Hundred and No/100ths Dollars ($10,700.00) 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, without 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. Provided, however, that Lessee shall have no obligation to pay rent for any period or periods during which the purchase pursuant to the aforementioned Option Agreement cannot be completed due to no fault or failure of Lessee. -5- 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. /he first full calendar year during the term of Each calendar year of the term after "Direct Expenses": All 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 ag-inst the Lessor or Lessee), water and sewer charges, if any, insurance premi~ns', utilities, janitorial services, landscaping services, labor costs incurred in the management and operation of the Parking Structure, supplies, rote- 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' co~missions). 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 pursu~mnt 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 Cormparison Year on account of the operation, maintenance or -6- 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, then the Lessee shall pay such a portion of the excess as is equal to the 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 Comparison 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 r~ght to require an increase in rent. Upon receipt of the statement for the first Comparison Year, Lessee shall pay in full the total amount of increase due for the first Comparison Year, and in addition for the then current year, the amount of any s~ch increase shall be used as an estimate for said current year and this amount sh~ll be divided into twelve (12) equal monthly installments and Lessee shall pay to Lessor, concurrently with the regular ~1onthly rent payment next due followin~ the receipt of such statement, an s~ount equal to one (1) monthly installment multiplied by the number of months fro~ January in the calendar year in which said statement is suk~itted 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 equal to such total increase ia Direct Expenses over the Base Year, less the total of the monthly installments of estimated increases paid in the -7- 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 Leesee's share of Direct Expenses is less than the preceding year, than upon receipt of Lessor's statement any overpayment made by Lessee 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 E~penses for the most recent Comparison Year. (c) Even though the term has expired and Lessee has vacated the Premises, when the final determination is made of Les~ee's share of Direct Expenses for the year in which this Lease terminates, Lessee shall inrnediately pay to Lessor any increases due over the esti,mted expenses paid and conversely any overpayment made in the event said expenses decrease shall be i~,~diately rebated by ~essor to Lessee. (d) Notwithstanding anything contained in this Section 6, the rental payment by Lessee shall in no event be less than the rent specified in Section 5 bereinabove. ?. Use. (a) Leesee and any and all persons it generally or specifi- cally authorizes shall use the Premises for the parking of automo- biles and/or passenger trucks. Lessor agrees that its use of any portion of the Parkin~ 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 --8-- without the prior written consent of 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 which will in any way increase the existing rate of or affect any fire or other insurance upon the l~rking Structure or any of its contents or cause cancellation of any insurance policy covering said Parking Structure or a~y part thereof or any of its contents. Lessee shall not do or permit anything to be done in or ~bout the Pre~/ses or Parking Structure which will in a~¥ way obstruct or interfere with the rights of other tenants, customers, ~uests, invitees, licensees or other users of the l~arking Structure or injure or annoy them or use or allow the Premises or Parking Structure to be used for any improper, i~moral, or objectionable purpose, nor shall Lessee cause, maintain or permit any nuisance in, on or about the Premise~ or Parking Structure. Lessee shall not co,amir or suffer to be cor~fttted any waste in or upon the Pr~m~ises or Parking Structure. Lessor shall likewise be restricted and bound in the use of the Parking Structure. 8. Compliance With Law. (a) Neither 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 w~y conflict with any law, statute, ordinance or government ~ule or re~,ulation now in force or which may hereafter be enacted or promulgated. Lessee shall, at its sole cost and expense, promptly comply with ~11 laws, statutes, ordinances and government rules, reEulations or requirements now in force or which may hereafter be in force~ and with the requirements of any board of fire insurance -9- underwriters or other similar bodies now or hereafter constituted, relating to, or affecting the condition, use or occupancy of the Pre- raises. /he jud~nent of any court of competent, jurisdiction or the admission of Lessee in any action against Lessee, whether Lessor be a party 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 a~d bound. (b) Lessee shall not be obligated to comply with any law that requires alterations, maintenance, or restoration to the Premises or Parking Structure unless the alterations, m-iutenance, or restoration are required as a result of Lessee's particular ,nd specific nse of the Premises or Parking Structure at the time. Lessor shall make any alterations, maintensnce, or restoration to the Premises 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 make or suffer to be made any other alterations, additions or improvements to the Pr~aises 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 i~stall 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 -10- the parking of vehicles on the Premises so long as the construction, installation and existence of said item~ shall not interfere with the rights of Lessor, its invitess, ~uests, representatives, clients and customers to use the retaining portion of the Parking Structure. (c) In the event Lessee makes any alterations, additions or improvements pursuant to either Sections 9(a) or 9(b) above, the same shall be made by Leeses at Lessee's sole cost and expense and upon the expiration or sooner termination of the term hereof (except ~ermination pur~snt 'to Lesses's exercise of its Option to purchase a tenancy in 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 damage to the Premises or Parking Structure caused by such re~oval. All such alterations, additions and improve- ments not so designated to be removed by Lessor pursuant to this Section 9(c) and which rem-~ on the Pr~nises 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 oF construct or maintain anything to interfere with~ impair or diminish Lessee's full rights of use or occupancy of the Premises and access for ingress and egress thereto. 10. Repairs. (a) By taking possessio~ of the Premises, Lessee shall be -11- deemed to have accepted the Premises as being in good condition and repair. Lessee shall at Lessee's sole cost and expense, keep any alterations, additions and improvements made by. Lessee purs,~nt to Section 9 above ia good condition and repair. (b) Notwithstanding the provisions of Section lO(a) herein- above, Lessor shall repair and maintain in good condition the Premises and Parking Structure unless such maintenance and/or repairs are caused in part or in whole by the act, neglect, fault or emission of any duty by the Lessee, its agents, servants, employees 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 perform any maintenance unless such failure shall persist for thirty (30) days after written notice of the need of such repairs or maintenance is given to Lessor by Lessee, unless the nature of the probl~n presents a hazard or emergency and Lessee so notifies Lessor, in which case Lessor shall inmediately make any such repairs or perfornl any such maintenance. /here shall be no abatement of rent and no liability of Lessor by reason of any injury to or inter- fer~nce with Lessee's use of the Pr~mises arising from the making of any repairs, alterations or improve~lents in or to any portion of the Struc- ture or the Premises, in or to any portion of the Premises unless Lessee is prevented from using the parking 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. -19.- 1I. Liens. Lessee shall keep the Premises and the property in ~hich the Premises are situated free from any liens arising out of any work perforr~ed, m~erials furnished or obligations incurred by Lessee. Lessor my require, at Lessor's sole option, that Lessee shall provide to Lessor, at Lessee's sole cost and expense, a lien smd 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 Pr~nises, to insure Lessor ags_tnst any liability for mechanic's liens and to insure completion of the ~ork. 12. Assignment. (a) Lessee shall not either voluntarily or by operation of law, assig~ or trsmsfer this Lease or any interest .therein, or anF right or privilege appttrtenant thereto~ (the e~ployees, agents, servants and invite~s of the Lessee and the partnership, corporation or association which is the successor entity or successor in interest of the Lessee 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 ~eet 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 t~x returns. A consent to one assignment or trans- fer by any other person shall not be deemed to be a co~sent to any subsequent assignment or transfer, by gnother person. Any such assign- -13- 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 enctmlber this Lease or any interest therein without the prior writte~ consent of Lessor first had and obtained, which consent may be withheld by Lessor for any reason whatsoever. In the event of any assignment or transfer approved by Lessor and as a condition thereof, Lessee shall deliver to Lessor an executed document whereby the assignee or transferee acknowledges acceptance of all of the terms and conditions of this Lease Agreement. (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 municipal entity which has been designated by an appropriate governmental entity as the successor in interest to Lessee. 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 ~ctivity, work, or other thing done, permitted or suffered by the Lessee in or about the P~rking Structure, and shall further indemnify and hold harmless Lessor against and from any and all claims arising from any breach or default in the perforra~nce 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 against all costs, attorney's ~ees, 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 a~inst Lessor by reason of any such claim, 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 paracraph to indenmify amd hold the other party harmless shall be limited to the sum that exceeds the amount of insurance proceeds, if any, received by the party b~Lug inde~ifie~. (2) Lessor shall indemnify and hold harmless Lessee agains~ and from any and all claims arising from Lessor's use of the lmarking Structure or from any activity, ~ork, or other thing, done, permitted or suffered by the Lessor in or about the Parking Structure, and shall further indemnify and hold harmless Lessee against and from any and all clm~m~ 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, agent, employee, guest, or invitee of Lessor, and frora all and against all costs, attorney's fees, expenses and liabilities incurred in or about any such claim or any action or procccding brought thereon, and, in any case, should an action or procccding be brought against Lessee by reason of any such claim, Lessor upon notice from Lessee shail defend the same at Lessor's expense by counsel reasonably satisfactory to Lessee. A party's obligation under this paragraph to indecmify and hold the other party ha~mles~ shall be limited .to the sum that exceeds -15- the amount of insurance proceeds, if any, received by the party being indemnified. (b) (I) Lessor or its agents sba/1 not be liable for any damage to property entrusted to the employees, agents or representatives of the Parking Structure, if any, nor for any injury, loss or d.ra~e to persons or property, including but not limited to, injury, loss or damage 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 pl~nbing 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 Lessor, its agents, servants or employees. Lessor or its agents shall not be liable for loss of busi- ness by Lessee, nor shall Lessor be liable for any latent or patent defect in the Premises or in the Parking Structure. Notwithstanding the above, Lessee shall give prompt notice to Lessor in case 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 equi~nent. (2) Lessee or its agents shall not be liable for any damage to property entrusted to the employees, agents or representatives of the Lessee~ if any, nor for any injury, loss or dan~ge to persons or property, including but not limited to, injury, loss or damage to persons or property resulting from-theft, vandalism, intentional or -16- 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 any other place resulting from dampness or any other cause whatsoever, unless caused by or due to the negligence of Lessee, its a~ents, servants or enlployees. Notwithstanding the above, Lessor shall give prompt notice to Lessee in case of any injury to, loss or dams~e to persons or pro- perry in ~'he Pr~m~ses or in the imarking Structure or of defects therein or in the fixtures or equipment. 14. Liability Insurance. Lessor shall, at Lessor's expense, obtain and keep in force during the ter~ 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 r~intenance of the Parking Structure with a single co, bin.ed liability limit of not less than One Million Dollars ($I,000,000.00) and which specifically lists the Lessee as an additional nsmed 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 corette insurance on the Parking Structure~ including the Prenises, in an amount equal to ninety percent (90~) of the full insurable value of the Parking Structure. If Lessor shall fail to procure and maintain said insurance, Lessee may, but shall -17- not be required to, procure and maintain 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. Service~ and Utilities. (a) Provided that Levee 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 all the followJ~g utilities: electricity, water, janitorial service, regular m~ ntenaace and upkeep and landscape ~ ~ utenance. Lessor shall also maintain and keep lighted the coramon stairs, common entries and rest rooms, if any, in the Parking Structure of which the Premises are a Dart. Lessor shall not be liable for, ,nd 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, break~,_ge, 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 co~ly with any reasonable rules and regulations that Lessor ~lay from time to time promulgate. Lessor reserves the right from time to time to make all reasonable modifications to said rules. Tae additions and modifications to those rules shall be binding upon Lessee upon delivery of a coPY of them to Lessee. -18- 17. Holding Over. If Lessee remains in possession of the Premises or any part thereof after the expiration of the term hereof, with the express written consent of Lessor, such occupancy shall be a tenancy from year to year at a rental in the amount of the last annum1 rental, plus all other charges p~ysble hereunder, and upon all the terms hereof applicsble to a year to yes~ tenancy. 18. Entry by Lessor. Lessor reserves smd 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 slter, improve or repair the Premises and any portion of the Parking Structu. re of ~hich the Premises are a p~rt that Lessor m~y deem necessary and may for that purpose erect scaffolding and other neoessar7 structures ~here reasonably required by the character of the work to be performed~ always providing that the entrance to the Pr~nises shall not be blocked there- by~ and furthe, r providing that the parking business of Lessee sb~ll not be interfered with unreasonably. Any entry to the Premises by Lessor shall not under any circ~nstances be construed or dc~-~ned to be a force- able or unlawful entry into~ or a detainer of, the Premises, or an eviction of Lessee fro~ the Pre,rises or any portion thereof. 19. Reconstruction. (a) In the event the Premises or the Parking Structure of which the Pr~mises are a part are ds~zged by any perils, Lessor agrees to forthwith repair the same; and this Lease shall renm/n in 'full force and effect, except that Lessee shall be entitled to a proportionate reduction of the rent while such repairs are being made, such propor- tionate reduction to be based upon the extent to which the ,~king of such repairs shall materially interfere with the business carried on by the Lessee on the Premises. If the damage is due to the fault or neglect of Lessee or its employees, there shall be no abatement of rent. (b) In the event the Premises or the Parking Structure of which the Premises are a part are dmrzged than the perils covered by fire and extended coverage insurance, then Lessor shall within a reason- able time thereafter forthwith repair the same, provided the extent of the destruction is less than five (5%) percent of the then full replace- ment cost of the Parking Structure of which the Premises are a part. In the event the destruction of the Premises or the Structure is to an extent greater than five ($4) percent of said full replacement cost, then Lessor shall have the option; (1) to repair or restore such damage, this Lease continuing in full force and effect, but the rent to be proportionately reduced as hereinabove in this Section 19; or (2) at any time 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 notice. In the event of giving such notice, -20- this Lease shall expire and all interest of the Lessee in the P~emises shall terminate on the date so specified in such notice ~nd the Rent, reduced by a proportionate amount~ based uDon the extent~ if any, to which such dsl~age m~terially interfered with the business cs/'ried on by the Lessee in the Premises, shall be paid up to the date of s~id such tennination. (c) Nothwithstanding s~ything to the contrary contained in this Section 19, Lessor shall not be required to repa/r any injury or damage by ~ire or other cause, or to make any repairs or replacements of any improv~nents to the Premises which Lessee insts/led pursuant to Section 9 above. (d) Except as noted above in this ~ection 19, Lessee shall not be entitled to any compensation or damages from Lessor for loss of the use of the whole or any part of the Prem/ses, Lessee's personal property or any inconvenience or annoyance occasioned by such damage, repair, reconatruction 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 ~bandonment of the Prsmises 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) -21- 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 fail~re 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 (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. 21. Remedies in Default. In the event of any such material default or breach by Lessee, Lessor may at any time thereafter, ~ith or without notice or demand and without limiting Lessor in the exercise of a right or remedy which Lessor may have by reason of such default or breach; (a) ~{aintain 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 decisioas of the State in which the Premises are located. 22. Eminent Domain. I£ any portlon of the P~rking Structure, including, but not limited to, the Pr~mises shall be taken or appro- priated by the City of Tustin or ~ny entity or political subdivision thereof, Lessor shall have the right, at its option, to terminate this Lease, ~nd Lessor shall be entitled to any and all income, rent, a~rd, or any interest therein ~hatsoever ~hich m~y be p~id or m~de in connection with such public or q,~--~i-public use or purpose, and Lessee shall h~v6 no cla~im 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, arJmowledge and deliver to Lessor a state~ezlt in writing, (a) certifying that this Lease is unmodified and in full force and effect (or as modified, 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 ~re 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 may be relied upon by any prospective purchaser or encm~brancer of all or any portion of the real property of which the Premises 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 co~nission in connection with this .Lease. 25. General Provisions. (a) Exhibits and Riders. Clauses, exhibits, plats and riders, if any, signed by the Lessor and the Lessee and endorsed on or affixed to this Lease are incorporated herein by this reference. (b) Wgiver. /he ws.iver by either party of any term, cove- nant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition on any subsequent breach of the sa~e or any other term, covenant or condition herein contained. Tae subsequent acceptance of rent hereunder by Lessor shall not be dc~-n%ed 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 ~ccepted, regardless of Lessor's knowledge of such preceding brea~h 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 deffmnds which may or are to be required or permitted to be given by either party to the other hereunder sh~ll be in ~riting. All notices and demands by either party hereto to the other party shall be sent by United States Mil, postage prepgid~ 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 performance is a factor. (f) Successors and Assigns. The covenants and conditions herein contained, subject to the provisions as to assignment, apply to and hind the heirs, officers, elected officials, em~loyess, successors, executors, administrators, sublessees and assigns of the parties hereto and as a condition to Lessor's approval of any ~,_ch assignment, transfer or sublease Lessee shail deliver to Lessor a written statement from the proposed assignee, tranferee or sublessee wherein said party acknow- ledges and agrees to be bound by all the terms and conditions of this Lease. (g) Recordation. Either party at its option may record this Lease or a short form memorand~n hereof with the prior written consent of the other p~rty. (h) Q~iet Possession. Upon Lessee paying the rent reserved hereunder and observing and performing all of the covenants, conditions and provisions on Lessee's part to be observed and performed hereunder, Lessee shall bZve quiet possession of the Pr~m~ses for the entire term hereof, subject to all the provisions of this Lease. (i) Late Charges. Lessee hereby ~.2{nowledges that late payment by Lessee to Lessor of rent or other suans due hereunder will cause Lessor to incur costs not cont~plated by this Le~se, the exact -25- 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 a~y installment of rent or of a s~ due from Lessee shall not be received by Lessor or Lessor's desi~lated a~ent within ten (10) days a.fter written notice that sa_id amount is past due, then Lessee shall p~y to Lessor late charge equ~l to ten (10%) percent of such overdue amount. parties hereby a~ree that such late charges represent a fair and reason- able esti,t~te of the cost that Lessor will incu~ 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. (j) Prior Agreements. This Lease contains all of the agreements of the p~rties hereto with respect to any rotter 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 a~ree- ment in wTiting signed by the~parties hereto or their respective suc- cessors in interest. ~his Lease shall not be effective or binding on any party until fully executed by both pa~ties hereto. (k) Inability to Perform. Tais Lease and the obligations of the Lessee hereunder shall not be affected or impaired because the Lessor is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused by reason of causes beyond the control of Lessor. (1) Attorneys' Fees. In the event of any action or pro- ceeding brought by either party ~.inst the other under this Lease the prevailing party shall be entitled to recover all costs and expenses including the fees of its attorneys in such action or proceeding in such amount as the court may adjudge reasonable as attorneys' fees. (m) Sale of Premises by Lessor. In the event of any sale of the Parkifig Structure by the Le~or, Lessor shall be and is hereby entirely freed and relieved of any liability under any and all of its covenants and obligations contained 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 deemed, without any further agreement between the paFties or their successors in interest or between the parties and any such purchaser~ to have ~ and agreed 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 conlpetent jurisdiction~ the validity and en- forceability of the remaining provisions or portions thereof, shall not be affected thereby. (o) 'Clauulative Remedies. No refl~dy or election hereunder -R?- shall be deemed exclusive but shall, wherever possible, be cmmulative with all other remedies at law or in equity. (p) Choice of Law. /his Lease shall be soverned by the laws of the State of C~lifornia. (q) Signs. Lessee shall not place any siEn upon the Pre- mises or P~rking Structure without Lessor's prior consent, which consent shall not be unreasonably withheld so lone as said sign is of a reason- able size and design and 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 communications given hereunder shall be in writing and shall be dcc~d to have been delivered as of act,~! personal delivery or as of the second business day after mailinE by United States registered or certified m-~l, return receipt requested, postaEe prepaid, addressed as follows: If to Lessee, to: TUSTIN ~ITY REDEVEDOP~ENT AGENCY Tustin City Hall Main and Centennial Tustin, California 99~680 ATTENTION: - ~ecutive Director Copy to: JANES G. ROUPJ~, ESQ. City Attorney 1055 No. Mg~n Street Suite 1020 Santa Aha, California 92701 -28- If to ~essor, to: STEVENS SQUARE, C/O GF~W,~'.~ DEVELOPMENT COMPANY, INC. 228 West ~in Street Tustin, California 92680 A~fENTION: Douglas ~. C/feller, President Copy to: B~I.DIKOSKI, KLOTZ, & DRAGONETI~ 270 Newport Center Drive Newpor~ Beach, California 92660 ATTENTION: Tmom~m H. Baldikoski, Esq. or such other address or to such other person as any party shall desig- hate to the others for such purpose in the manner hereinabove set forth. ~he p~rties hereto have executed this Lease at the place and on the dates specified iamm~iately adjacent to their respect signatures. LESSOR: LESSEE: TUSTIN~ITY Mk~EVELOPMENT AGENCY, a statutory entity ~rithin the City of Tustin By D~ted: a California Limited Partnership BT GFW~.k~R DEVELOPM~TCO~PANY, INC., a California corDoration, As General Partner By Dated: Douglas M. Gfeller - President The description of the leased Premises is contained in a document entitled "A Proposed Parking Structure For The Stevens Square Project" filed with the City of Tustin on February L 1982; which document has been reviewed by both parties hereto and is incorporated herein by this reference. The Premises include the upper level of the Parking Structure as depicted on Page A-2 of the above-referenced document, except for the twenty-five (25) parking spaces closest to "C" Str.eet and all driveways and parking ramps used for ingress to and egress from. said 25 parking'spaces. EXHIBIT "A" C:OVER,-,,.,E P'JL ] :~;¥ SCHEDULE C THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF TUSTIN AND IS DESCRIBED AS .FOLLOWS: PARCEL 1: THE SOUTH 50.00 FEET/OF T~AT ~-ObS~T~r~JOF LOTS 7, 8 AND~/~IN BLOCK 17 OF 'A PART OF TUSTIN ~TT~; A~ SHO~N ON MAP RECORDED I'N BOOK 4, PAGES 218 AND 219 OF MISCELLANEOUS RECORDS OF LOS ANGELES COLINTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 9; THENCE EAST 137.C)9 FEET TO THE NORTHWEST CORNER OF THE LAND CONVEYED TO CHAS. S. KELLY BY DEED RECORDED JANUARY 20, 1~12 IN BOOK 20~, PA~E ~ OF DEEDS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE SOUTH ALONG THE WEST LINE OF SAID LAND, 150.00 FEET TO THE SOUTHWEST CORNER THEREOFI THENCE WEST 13~.~3 FEET TO THE SOUTHWEST CORNER OF SAID LOT 9; THENCE NORTH I50.00 FEET TO THE POINT OF BEGINNING. PARCEL 2: ~ RIGHT OF WAY FOR ALLEY PURPOSES OVER THE AOUTH 10 O0 FEET OF THAT PORTION OF LOTS 6 AND 7 IN BLOCK'~ 17 OF "A pARTY's. OF~T~STIN CITY", AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGES 21~ AND ~1~ OF ~MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DE:~CRIBEO ZAS FOLLOWo: , BEGINNING AT A POINT 141.83 FEET WEST OF THE NORTHEAST CORNER OF SAID BLOCK 17, SAID POINT BEING ALSO 162.0~ FEET EAST OF THE NORTHWEST CORNER OF SAID BLOCK 17; THENCE SOUTH 150.00 FEET TO A POINT 141.&~ FEET WEST OF THE SOUTHEAST CORNER OF LOT 4 OF SAID oFBLOCK 17, AND BEING ALSO I~I.c/3 FEET EAST OF THE SOUTHWEST CORNER LOT ~ OF SAID BLOm~K" 171 THENCE WEST 25.00 FEET) THENCE NORTH 150.00 FEET; THENCE EAST 25.00 FEET TO THE POINT OF BEGINNING. PARCEL 3: LOTS 10, 11 AND 12 IN BLOCK 17 OF A PART OF TUSTIN CITY, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGES 218 AND 21~ OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA. ~HB:CLC PAGE 5 0R-1337~60 DESCRIPTION ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF TUSTIN, DESCRIBED AS FOLLOWS: THAT PORTION OF 5TH STREET AS SHOWN ON A MAP OF TUSTIN CITY RECORDED IN BOOK 4, PAGE 218 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS1 BEGINNING AT A POINT IN THE EAST LINE OF "C" STREET, AS SHOWN ON SAID MAP, 300.00 FEET SOUTH OF THE NORTHWEST CORNER OF BLOCK 17 OF TUSTIN CITY; THENCE EAST 150.00 FEET TO THE WEST LINE DF THE LAND CONVEYED TO N. F. RITCHEY BY DEED RECORDED MAY 5, 1904 IN BOOK 105, PAOE 202 OF DEEDS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE ALONG SAID WEST LINE AND ALONG THE WEST LINE OF THE LAND CONVEYED TO ARTHUR F. RITCHEY RECORDED MAY 5, 1904 IN BOOK 105, PAGE 203 OF E:AID DEEDS, SOUTH 66 FEET TO THE NORTH LINE OF BLOCK 24 OF SAID TUSTIN CITY; THENCE ALONG SAID NORTH LINE, WEST 150.00 FEET TO SAID EAST LINE OF "C" STREET; THENCE ALONG SAID EAST LINE, NORTH 66.00 FEET TO THE POINT OF BEGINNING. WHB:MF PLATS (AND CC&R'S. IF ANY)' ENCLOSED. NOTE: ACCORDING TO THE PUBLIC RECORDS, THERE HAVE BEEN NO DEEDS CONVEYING THE PROPERTY IN THIS REPORT WITHIN SlX MONTHS PRIOR TO THE DATE OF THIS REPORT, EXCEPT A~ FOLLOWS: NONE. PAOE 3 Exhibit "C" to this Agreement (plans and specifications for the Parking Structure) is a document entitled "A proposed Structure For The Stevens Square Project" filed with the City of Tustin on February~ 1982; which document has been reviewed by both parties hereto and is incorporated'herein by this reference. EXHIBIT "C" The description of the portion of the Parking Structure retained by Lessor is contained in a document entitled "A Proposed Parking Structure For The Stevens Square Project" filed with the City of Tustin on February-l, 1982; which document has been reviewed by both parties hereto and is incorporated · ~erein by this reference. The portion of the Parking Structure retained by Lessor consists of the entire area depicted on Page A-1 of said document and the twenty-five (25) parking spaces closest to "C" Street and all driveways and parking ramps.used for ingress to and egres~ from said 25 parking spaces as depicted on Page A-2 of the above-referenced document. EXHIBIT "D" First American Title Insurance and Trust Company Escrow No. OPTION AG~m~T AND ESCROW INSRUCTIONS THIS AGREEMENT, dated as of the day of , 198_, by a~d between and STEVENS SQUARE, a California limited partnership, herein referred to as "Optionor", TUSTIN COMMUNITY REDEVELOt~ENT AGq~CY, a statutory entity within the City of Tustin to wit, a California Corfl~unity Redevelo~ent Agency, herein referred to ~s "Optionee", is entered into with reference to the recita/s set forth in Article 1 below and constitutes (a) an option to purchRse 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 Agre~llent. ARTICLE 1 Recitals 1.1 Optionor o~ns and holds the fee title to that certain real property consisting of approximately 40,000 square feet 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 "Property"). 1.2 Optiono~, as developer, is presently constructing a two-story parking structure on the Property (hereinafter referred to as the "Parking Structure"), purs,~,nt to its contractual obligations set forth in other documents concurrently executed by the parties hereto, Optionor will within one hundred and eighty (180) days at its sole expense (a) cause to be formed Stevens Sq, m~e Parking Structure Condomi- nium Association, a California non-profit mutual benefit corporation (hereinafter "Association"); (b) will cause a parking structure to be constructed on the Property in accordance with the plans and specifica- tions now on file with the City of Tustin, ~inor devi&tions excepted; (c) will cause a condornini~n to be created consistent with the provi- sions contained herein and in compliance with all laws; and (d) convey various tenancy in co~,)n interests in the fee title to the underlying real property to the parking structure condomini~u Owuers~ to-wit~ Optionor and Optionee, as tenants-in-co,talon. Optionor shall also cause to be formed Stevens Square Association, a California non-profit mut,~a3 benefit corporation, as part of a co~l~ercial development undertaken by Optionor on property adjacent to the Property. 1.3 Concurrent with the execution of this Option Agreement, Optionor, as Lessor, and Tustin Co~k.~anity Redevelopraent Agency, as Lessee, have entered into a P~rking Structure Lease whereby Optionor, as Lessor, leases to Optionee, as Lessee, certain parking space located in the Parking Structure to be constructed by Optionor as Lessor, which parking space is more particularly described in Exhibit '~" attached -2- 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 Parking Structure Condomini%ml to be created as provided herein, to-wit, U~it 1 of the Condom~ui~n plus an undivided 38.38% fee interest as a tenant-in- common in the common areas and underlying real property as herein provided. ARTICLE 2 A~resment 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 Condo~aini~n designated as Unit No. 1 in the Declaration of Covenants~ Conditions and Restrictions and Reservation of Easements for Stevens Square Parking Structure Condomini~n A~sociation together with an undivided 38.38~ fee interest as a tenant in cocrnon in the underlying real property and conmon area designated in said Declaration which is attached hereto as Exhibit "C" and incorporated herein by this reference. (Said property to be referred to as the "Option P~opert¥"). (a) This option shall cocr~ence on the date of execution hereof and continue until such time as the Lease A~reement described above shall terminate (herein referred to as "option period"), except in the event Lesso~ terminates said Lease A~reement pursuant to a termina- -3- tion right of Lessor, if any, the option described above shall continue for an additional six (6) months after such termination. (b) Optionee shall have the exclusive right during the option ~eriod to purchase the Option Property, for a total purchase price equal to Six Htmdred ~ho~sand Dollars ($600,000.00) or the Cost of Construction as defined in subsections (c) and (d) hereof, whichever is less; (c) '~ost of Construction" as used herein shall ~lean the actual costs necessarily and reasonably incurred for the construc- tion of the Parking Structure, such costs to include, but not be limited to, the following items: (1) contractors performing ~ages, salaries and fees paid to Optionor's authorized work upon the Parking Struc.ture. Cost of necessary materials, equipment, 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. (5) Cost of necessary engineering services, plans and specifications and architectural expenses. (8) Interest incurred prior to the completion of the construction of the Parking Structure or Optionee's taking posses- sion of the parking spaces described in Exhibit 'qB" hereto pursuant to the Parking Structure Lease referenced in Section 1.3 above, ~ichever is later in time, plus "points". /]ne interest to be included in the "Cost of Construction" may not exceed Fifty Seven Thousand Sixty Dollars ($57,060.00) and the "points" included in the "Cost of Construction" may not exceed Ten Thousand~Three Hundred and Seventy-__Seven~ ~Do~l_~ars (?) Cost of obtaining and maintaining insurance of a' type generally referred to as course of construction insurance. (8) Tae such of Twenty Thousand Dollars ($20,000.00) as a fee for office and field supervision. (d) Except a~ noted tO the contrary in this Agreement, "Cost of Construction" shall not include the following:: (1) Expenses for operating Optionor's on-site or of£-site offices. (2) employees of Optionor. (4) the Parking Structure. Overbead or g~neral expenses of any kind. Compensation of officers, owners, partners or Any profit attributed to the construction of (e) Discounts, rebates and refunds accrued to Optionor as a result of construction of the Parking Structure~ and Optionor shall take the necessary steps to secure same, shall be deducted from the Cost of Construction. (f) Damages a~d liquidated damages recoveredby Optionor on labor, materials, or"supplies char~ed as a Cost of Construction shall be deducted from the Cost of Construction. (g) Sums collected by Optionor as a result of the sales of surplus materials, equirmnent, supplies and scrap shall be deducted from the Cost of Construction, and Optionor shall take the necessary step~ 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. (i) There shall be deducted from the Cost of Construc- tion as deter1~ined by Paragraph (c) above: (1) An amount equal to the cost for Optionor's construction of a single level parking facility, which for purposes of this A~reement the parties hereto agree is Seventy Two Thousand Dollars. ($72,000.00); a~d (2) Any a~ounts paid by Optionee on the principal balance of the construction loan for the Parking St ructure. 9..2 Optionee hereby gives Optionor its notice of intention to exercise the option to purchase .the Option Property. Closing date of the escrow shall be when each of the following have been completed: (a) The Parking Structure has been completed in accor- dance with the plans and specifications referenced in the doct~nents attached hereto~ minor deviations excepted. (b) The Parking Structure Condominium has been created. (c) The title company is prepared to issue a CLTA standard coverage policy of title insurance insuring title to Optionee Df Unit 1 of the Parking Structure Condominium together with an un- divided 38.38% interest in the fee title to the underlying real property and common areas, free and clear of all encumbrances except those set forth below. (d) When the foregoing have been completed and upon notice thereof to Optionee, Optionee shall forthwith deposit the Pur- chase Price as hereinabove prescribed into escrow and the escrow shall close forthwith. (e) Optionor shall deliver to Escrow Agent, with a copy to Optionee, a copy, conformed to show recordi~q in the office of the Orange County Recorder, the Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for Stevens Square Parking Structure Condominium Association in the form attached hereto as Exhibit "C" and incorporated herein by this reference. ARTICLE 3 Title Report 3.1 A copy of a CLTA standard coverage Policy Number OR-1315082, of First American Title Insurance Company dated June 23, 1981, and Preliminary Title Report Number OR-1337660 of First American Title Insurance Company dated February 3, 1982, are attached hereto marked Exhibit "D". Optionee approves said title reports except for Exceptions Number 1 and 4 of Part 2 of the former and except for Exceptions Number 1 and 3 of the latter. Optionor shall have the right to apply any portion of the Purchase Price payable at or prior to close of escrow - for purposes of curing any title objections of a definitive and -7- ascertainable amount concurrent with the close of escrow. 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 equal to the purchase price as described in Section 2.1(b) herein. ARTICLE 5 Optionor's Deliveries to Escrow Agent Optionor shall, prior to the close of escrow deliver to 5.1 Escrow Agent: 5.1.1 '~e 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 Optionor and/or s~lch person(s) as the title insurer may require in order to issue the Title Policy described in Sectio~ 6.1.2. 5.1.9. 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~ Optionor shall deliver to Escrow Agent sufficient funds and instrt~nents to accomplish the matters described in' subsections (a) and (b) above. -8- ARTICLE S The ClosinE 8.1 Escrow Agent shall close the escrow on the Closing Date, or as soon thereafter as Optionor shall have complied with all of its obligations hereunder, by (a) filing for record the Optionor's Grant Deed for the Option Property a~d such doo,,ments as may be neces- sary to procure the Title Policy, and (b) delivering funds and documents as set forth in Article 8, entitled "Escrow A~ent's Delivery of Funds and Documents" IF AND ONLY IF each of the following conditions has been satisfied: 8.1.1 All funds and instrt~nents described in Articles 4 and 5 have been delivered to Escrow A~eat. 6.1.~. Escrow A~ent can procure from First ~erican Title Insurance and Trust Company a CLTA owner's policy of title insurance (the '~itle Policy"), with liability in the amount of the total purchase price for the. Option Property on the Closing D~te. Said CLTA policy is to insure fee title to the Option Property vesting in Optionee, subject only to all matters shown oe the report on title and approved by OP- tionee as more fully described in Section 3.1 above and the terms of Exhibit "~' herein. ARTICLE 7 Fees and Costs ?.1 Optionor will ~ay (a) Doc~nentary Transfer Tax, in the amount Escrow Agent de~ermines to be required by law, (b) the Title -9- Policy premi~n, (c) one-half (1/2) of Escrow Agent's fee, and (d) usual optionor's/seller's doc~nent-drafting and recording charges. 7.2 Optionee will pay (a) one-half (1/2) of Escrow Agent's fee~ and (b) usual optionee's/buyer's doc~nent-drafting and recording charges. ARTICLE 8 Escrow Agent's Delivery of Funds and Doc~nents 8.1 Escrow Agent will cause the County Recorder of Orange County to m~il the Optionor's Grant Deed (and each other doc~nent which is herein expressed to be, or by general usage is, recorded)~ after recordatioa, to the Optionee, grantee~ beneficiary or person (a) ac- quiring rights under .said document, or (b) for whose benefit said doc~nent was acquired. 8.2 Escrow Agent will deliver by United States mail (or will hold for personal pickup~ if requested), each non-recorded document received hereunder by Escrow Agent to the payee or person (a) acquiring rights under said doctgnent, or (b) for whose benefit said doc~nent was acquired. 8.3 Escrow Agent will deliver to Optiomor a copy (conformed to show recording date) of the Optionor's Grant Deed and each doct~nent recorded to place title in the condition required by this Agre~nent. 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 in -10- accordance with the terms of this Agrc~--~ent and (b) to Optionee, or order, any excess funds theretofore delivered to Escrow Agent by tionee. 8.5 Escrow Agent will cause the Co~lty Recorder of Orange County to mail Exhibit "C' herein to Optionor after recordation and deliver to Optionee a copy of said doc~nent conformed to show recording date. ARTICLE 9 Interest of Stevens Sq,,~e Association 9.1 Optionee acknowledges that Optionor intends to transfer its interest in Unit 2 and its undivided 61.8P.~ interest as tenant-in- common in the common areas and underlying real property to Stevens Square Owner's Association, a non-profit ~utual benefit corporation to be for~ed by 09tionor. Optionee understands and a~rees that it will take title to the Option Property subject to all the terms and condi- tions of said Exhibit "C"'. ARTICLE 10 Warranties and Post Closing Obligations 10.1 Optionor warrants ~hat it bas the authority to enter into this Agreement, and that it is aware of no actions, cl~i_~s, 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 becomes aware of any actions, cla/ms, claims for possession including adverse possession, or litiga- -11- tion pending after the date of this A~reement. 10.2 Optionee warrants that it has the authority to enter into this A~reement. By reason of its signature hereto, the City of Tustin agrees that the terms of this A~re~nent shall be binding on and enfor- ceable a~inst any ~unicipat entity created as a successor in interest to Optionee. 10.3 Notwithstanding anything contained herein to the con- trary, each party expressly a~rees to waive its right to bring an action to partition the Option Property. Eacb party further a~rees that said waiver of its right to partition the property in question will be binding upon its successors and assigns in interest, and will be a covenant running with the land. 10.4 Optionor warrants that, except ss noted herein (e.g. Exhibit "C~' herein), at close of escrow the Option Property will be free and clear of any liens and/or other encumbrances. ARTICLE 11 Real Estate Co~mission 11.1 Escrow A~ent shall have no concern with, nor liability nor responsibility for, this Article. 11.9. Optionor warrants to Op~ionee that it has incurred no obligation for a real estate broker's, aEent's or salesman's co~nission by reason of this A~reement, or the transaction conte~nDlated hereby, for which Optionee would be liable and no broker or other person is entitled to any commission or finder's fee in Connection with any of the transac- -12- tions described herein ~nd O~tionor ~rees to indemnify ~nd hold Op- tionee hs/'mless for ~y li~ility, c12]~, d~d, zcco~t~ lien or enc~r~ce ~sert~ by ~y such broker, sal~ or ~ent. 11.3 ~tion~ ~r~ts to ~tionor that it h~ ~c~red no obligation for a real estate broker's, ~ent's or ~'s c~ion by re,on of this ~r~nt, or the tr~s~tioa coDt~lat~ hereby, for which ~tionor ~d be li~le ~d no broker or other ~son is e~titl~ to ~y c~ion o~ finder's f~ in co~tion ~th ~y of the tions de~rib~ herein ~d ~tiom~ ~r~ to ind~ify ~d hold tionor hm~ess for ~y liability, clx, d~d, accost, lien or enc~br~ce ~serted bY any such broker~ sgl~ or agent. ~si~nt bY ~tioD~ 1R.1 ~tion~ shall not either vol~t~rily or bY o~r~tion of law, ~i~ or tr~fer this ~r~Dt or ~y inter~t therein, or right or privilege ~pp~ten~t thereto, (the ~loy~s, ~ents, se~ts and in~t~s of the ~tion~ ~d the ~tnership, cor~r~tion or ciztion ~ich is the successor entity or succe~or in interest of the ~tion~ excepted) ~ithout the prior ~itten consent of ~tionor first had ~d obt~n~, ~ich consent sb~l not be ~re~on~ly ~t~eld lon~ ~ the fin~cial stat~, ability ~d conditio~ of the pro~s~ zssi~n~ ~e of a n~ture sufficient to ~et ~d satisfy the obligations of ~tion~ herein. ~tion~ shall f~nish ~1i fin~cial info~tion re~rdin~ the p~o~s~ ~si~n~, or 'tr~sfer~ re~on~bly requested by -13- Optionor including, without limitation, certified financial statements and recent federal income tax returns. A consent to one assignment of transfer by any other person shall not be deemed to be a consent to azly subsequent assignment or transfer, by another person. Any 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 encumber this Agree- ment or any interest therein without the prior written consent of Optionor first had and obtained, which consent may be withheld by Optionor for any reason whatsoever. In the event of any assignment or transfer approved by Optionor and as a condition thereof, Optionee shall deliver to Optionor an executed doctmlent whereby the assignee or trans- feree acknowledges acceptance of all of the terms and conditions of this Agreement. 12.2 shall have the Notwithstanding the preceding Section 12.1, Optionee 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 has been designated by an appropriate governmental entity as the successor in interest to Optionee. ARTICLE 13 Notices 13.1 Unless otherwise specifically provided herein, all notices, demands or other cc,~punica~ions given hereunder shall be in -14- ~riting and shall be deemed to have been delivered as of actual personal delivery or as of the second business day ~fter nm~iling by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to Optionee, to: TUSTIN COMMUNITY REDEVELOPMENT AGENCY Tustin City Hzll ~in and Centennial Tustin, California 92680 ATI~NTION: Executive Director Copy to: JA~_S G. ROURKN, Esq. C±ty Attorney 1055 N. Ma~n St~'eet Suite 1020 Santa ma, Cal±fornia 92701 If to Optiouor~ to: ¢/o GF~.r.~ DEVELOPMENT CO~IP~Y, INC. 228 Wes~ ~n Stree~ ~ti~ California 92680 A~"ENTION: Douglas M. Gfel~er, Presiden~ Copy to: B~r.~IKOSKX, KLOT~., & DRAGONETI~ 270 Newport Ceuter Drive NewDort Beach~ Califoruia 92660 ATYENTION: Taomas H. Baldikoski, Esq. If to Escrow Agent, to: FIRST AMERICAN TITLE INSURANCE AND TRUST CO~ANY 114 East Fifth Street Santa Ana~ California ATTENTION: or such other address o~ to such other person as any p~ty shall desi~- -15- nate to the others for such purpose in the manner hereinabove set forth. ARTICLE 14 Indenmity 14.1 Each ps~ty (hereinafter referred to in this Article 14 as the "Indemnifying Party") a~rees 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 a~ainst: (a) any and all obligations, liabilities, cl-~m~, accounts, de,ands, liens or encumbrances asserted by third parties, whether direct, con- tingent or consequential and no matter how arising, in any way related to any act, conduct, o~lission, contract, a~rc~-~ent or commitment of the Indemnifying Party, its employees, a~entS or licensees, at any time prior to ternlination of escrow, connected with or arising from the consu~nation of this transaction, (b) any loss or damage to the Other Party resulting from any inaccuracy or breach of any representation or warranty of the Indemnifying Party, or resulting from any breach or default of the Ind~nnifying Party of any covenant or a~ree~nent with the Other party under this A~r~-'~e. nt or other documents entered into pur- s,,-nt hereto, and (c) all costs and expenses including attorney's fees, related to any action, suit or judgment incident to any of the obliga- tions described in Section 14.1(a) and (b). 14.9. Tae Other Party shall promptly notify the Indemnifying Party in the event any-claim is made a~ainst it for which the Indemni- -16- lying Party bas a~r~d to ind~z~if¥ the Other Party ss set forth in this A~rc~ment and the Indemnifying imarty shall u~dertake to defend and hold the Other Party free and harmless therefrom using counsel reasonably satisfactory to the Other t~artF. Should the Indemnifying I>~rty fail to discharge or undertake to defend the Other Party a~ainst such liability, then the other Party may settle the same and the Indemnifying Party's liability to the Other Party shall be conclusively established by such settle~lent consideration and the reasonable costs and expenses, including attorney's fees, necessarily incurred by the Other Party in effecting such settlement. 14.3 Ail indemnities given pursuant to this Article are not intended to be in lieu of any other remedy, expressed or implied,, in law or in equity, and shall not be dc~--~ed to be a w~iver of any remedy, and shall survive the Closing D~te. ARTICLE 15 Optionor Insurance 1§.1 During the option period, Optionor, at its cost shall maintain on the Parking Structure a policy of standard fire and extended coverage insurance, with vandalism and mlicious mischief endorsements, to the extent of at least the full replacement v~lue thereof. The "full replace~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 three yea~s, either party hereto shall have -17- the right to notify the other party that it elects to have the replaCe- ment value redetermined by an insurance company. /he redetermination shall be made promptly and in accordance with the rules and practices of the Board of Fire Underwriters, or a like board recognized and generally accepted by the insurance com~ny, and each party shall be pron~tly notified of the results by the company. The insurance policy shall be adjusted according to the redetermination. 15.2 All policies of insurance required by Section 15.1 above, shall be isslled in the names of ODtionor, ODtionee, and Op- tionor's lender as their interests appear. The insurance policies shall provide that any proceeds shall be m~de payable to Optionor or Op- 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- tures, personal property, improvements and alterations thereon that are caused by or result from risks insured against under any insurance policies carried by the parties and enforced at the time of any such damage. Each party shall cause each insurance policy obtained by it to provide that the insurance company waives all right of recovery by of subrogation against either party in connection with any damage covered by any policy. Neither party shs_ll be liable to the other for any damage caused by fire or any of the risks insured against under any other insurance policy required by this Agreement. 15.3 All insurance required under this Agreement shall: -18- 15.3.1 Be issued by insurance companies authorized to do business in the State of California, with the financial ratin~ of at least A plus 3A status as related in the most recent ~ddition of Best's insurance reports. 15.3.2 15.3.3 Be issued as a primary policy. Contain an endorsement requiring 30 days' written notice fro~ the insurance company to each party and Optionor's lender before cancellation or chanEe in the covers~e, scope, or ~mount of any policy. 15.4 Each policy, or a certificate of the policy, together with evidence of payment of premiums, shall be deposited with both parties at the commencement of the term of the policy, and on renewal of the policy~ not less than 30 days before expiration of the term of the policy. ARTICLE 16 Extent of Escrow Agent's Responsibilities 16.1 Escrow A~e~t shall not be liable for any of its acts or omissions u~less the same shall constitute negligence or willful miscon- duct. 16.2 Escrow A~ent shall have no obligation to inform any party of any other transactions or of facts within Escrow A~ent's knowledge, even though the same concerns the Option Property or Premises, provided such matters do not prevent Escrow A~ent's co~lpliance with this A~rcc.~nt. 16.3 Escrow A~ent shall not be responsible for (a) the suffi- -19- ciency or correctness as to form or the validity of any document de- posited with Escrow Agent, (b) the manner of execution of any such deposited doc~neut, unless such execution occurs in Escrow Agent's premises and under its supervision, 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 de~lsnds or cI~ims with respect to the escrow, the rights of any ps~ty hereto~ or funds, doc%~ents, or property deposited with Escrow Agent, Escrow Agent shall have the 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. Tae parties shall, ia,~d!ately after demand therefore by Escrow Agent, reimburse Escrow Agent (in such respective proportions as Escrow Agent shall determine) any reasonable attorney's fees and court costs incurred by Escrow Agent pursuant to this Paragraph. ARTICLE 17 Purchase of Additional Pa~king Spa2e I7.1 As a m~tter With which escrow holder need not be con- cerned, Optionor hereby gives Optionee the irrevocable right for five (5) years following execution of this doczm~ent to p~rchase up to an additional seven (?) parking spaces (without any voting rights) in that portion of Unit 2 (Unit 2 as described in Exhibit "C"' herein) located on the upper level of the subject Pa2king Structure adjacent to Unit 1 -20- at a Purchase Price of Six Thousand Five Hundred Dollars ($6,500.00) for each parking space. It is further agreed that any such purchase of additional parking spaces by Optionee shall not result in or effect a change in the shares of operation and maintenance expenses or Associa- tion fees for which the parties and/or their successors in interest shall be obliged to pay as provided herein and that if and when said transfer is effectuated~ the par~ies further ¢gree that the descriptions of Unit 1 and Unit 2 as per the above-referenced Exhibit "C" and all other relkted documents shall be amended so that the additions.1 seven (7) spaces noted above will be deleted from Unit 2 and added to Unit 1 as per Exhibit "E"' of said Exhibit "C~' herein. In the event that during said five (5) years, Optionee has not exercised its rights to purchase any or all of s~id additional seven (7) parking spaces and Optionor desires to sell one or more of said spaces to a third party, Optionor shall give written notice to Optionee of his proposal to sell any or all of said spaces to a third party, setting forth the name and address of the party to whom such sale is proposed and the proposed Purchase Price, terms and conditions of said sale. Optionee shall thereupon have thirty (30) days following receipt of such written notice fro~ Optionor in which to advise Optionor in Writing of Optionee's intention to purchase said spaces. Optionee shall have the right to purchase the said spaces for Six Thousand Five Hundred Dollars ($6,500.00) per space or for the Purchase Price and upon the terms and conditions Optionor proposed to sell said space or spaces to said third party, whichever is less. If -21- Optionee gives Optionor such written notice of intention to purchase, Optionee shall open an escrow at First Americsn Title Insu~a~qce Company forthwith, with appropriate instructions and shall, deposit the required Purchase P~ice therein. ARTICLE 18 General l~ovisions 18.1 Definitions of words and phrases used in this Agreement: 18.1.1 "Cash" means (a) currency, or (b) cashier's check(s), or (c) certified check(s). 18.1.9. "Party" or "parties" means Optionor and/or Optionee, a~ the context indicates. 18.1.3 '~lhe escroW' means the escrow created hereby. 18.1.4 The Dhrase "Closing Date" means the date on which C~tionee has elected to exercise its option to purchase the Option P~operty pur~mnt to the notice requirements of Section 2.2 herein. 18.1.5 ~ne phrase "the opening of the escroW' means the date Escrow Agent signs the "Co~sent of Escrow Agent" attached hereto. 18.2 ~he 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. 18.3 Captions in this Agreement are inserted for convenience of reference only and do not define, describe, ~ffect the construction or interpretation or limit the scope or the intent of this Agreement or any of the ter~ and pro-visions hereof. -22- 18.4 All exhibits referred to herein and attached hereto are a part hereof and incorporated herein by this reference. 18.5 This Agreement and the Exhibits thereto contain the entire agreement between the parties relating to the transactions contemplated hereby and all prior or contemporaneous agreements, under- standings, representations, and state~aents, oral or written, are merged herein. 18.6 No modification, waiver, amendment, discharge or change of this ~re~nent shall be valid unless the same is in writing and signed by the party against which the enforcement of such modification, waiver, amendment, discharge, or change is or may be sought. 18.7 Optionor and Optionee shall, whenever and as often as reasonably requested to do so by the other party, execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and all doct~ents and instrt~ents as My be necessary, expedient or proper in the opinion of the requesting party to carry out the intent and purposes of this A~ree~ent, providing that the requesting party shall hear the cost and expense of such further instrt~ents or documents (except that each party shall bear its own attorneys' fees). 18.8 In the event either party commences litigation for the judicial interpretation, enforcement, breach or rescission hereof, the prevailing party shall be entitled to a judgment against the other for an 8mount equal to reasonable attorney's fees and court and other costs incurred. -23- 18.12 herein. 18.13 18.9 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,. ~nd assigns. 18.10 7his Agreement shall be construed and enforced in accor- dance with the laws of the State of C~lifornia. 18.11 All obligations referred to herein to be performed in a time or times after the close of the escrow, and all warranties and representations conta/ned herein, sh~ll survive the close of escrow and the delivery of Optionor's Grant Deed. Time is of the essence of each obligation of each pgrty The parties hereto, and each of them, acknowledge that this Agreement 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. 18.14 In the event that any of the provisions, or portions thereof, of this Agre/~ent are held to be unenforceable or invalid bF any court of competent jurisdiction, ~he v~lidity and enforceability of the r~mzining provisions, or portions thereof, shall not be affected thereby. -24- ~his Agreement has been executed by Seller and Buyer, as of the date set forth at the beginning hereof. a California limited partnership, by GF~J.~R DEVEIDP~NT CO~P~, INC., ~ California corpormtion, General Partner TUSTIN CO~f0NITY AGENCY, a California Co,,.,~nity Redevelopment Agency Douglas M. Gfeller - President CITY OF TUSTIN, a municipal entity -25- CONSENT OF ESCRO~ AGENT ~he undersigned Escrow Agent hereby agrees to (a) accept the foregoing Agreement 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 Agrccment and Instructions, fully signed by the parties, has been delivered to the undersigned, or (ii) any amendment to said Agreement and Instructions unless and until the same shall be accepted by the undersigned in writing. DATED: FIRST A~ERICAN TITLE INSURANCE AND TRUST COMPANY By Escrow Officer -26- Real property in ~he City of Tustin, County of Orange, State of California, being a portion of Block 17 and 5th Street (abandoned) as shown on a map filed in Book 4, pages 218 and 219 of Miscellaneous Records of Los Angeles County, described as follows: Parcel 1: The south 50.00 feet of Lots 7, 8 and in said Block 17, described as follows: Beginning at the Northwest corner of said Lot 9; thence East 137.09 feet to the Northwest corner of the land conveyed to Chas. S. Kelly by deed recorded January 20, 1912 in Book 206, ~age 8 of Deeds, Records of Orange County, California; thence South along the West line of said land, 150.00 feet to the Southwest corner thereof; t~nce West 136.93 feet to the Southwest corner of said Lot 9; thence North 150.00 feet to the point of beginning. Parcel 2: Lots 10, 11 and 12 in said Block 17. parcel 3: That portion of 5th Street described as follows: Beginning 'at a point in the East line of "C" Street, as shown on said Map, 300.00 feet South of the Northwest corn6r of Block 17 of said Tustin City; thence East 150.00 feet to the West line of the land conveyed to N.P. Ritchey by deed recorded May 5, 1904 in Book 105, page. 202 of Deeds, reocrds of Orange County, Califor- nia; thence along said West line and along the West line of the land donveyed to Arthur F. Ritchey recorded May 5, 1904 in Book 105, page 203 of said deeds, south 66.00 feet to the North line. of Block 24 of said Tustin City; thence along said North line, West 150.00 feet to said East line of "C" Street; thence along said East line, North 66.00 feet to the point of beginning. EXHIBIT "A" The description of the leased portion of the Parking Structure is contained in a document entitled "A Proposed Parking Structure For The Stevens Square Project" filed with the City of Tustin on February L 1982; which document has been reviewed by both parties .hereto and is incorporated herein by this reference. .~ The.leased. portion of the Parking Structure includes the upper level of the Parking Structure as depicted on Page A-2 of the above-referenced document, except for the tWenty-five ('25) parking spaces closest to "C" Street and all driveways and parking ramps for ingress to and egress from said 25 parking spaces. l~,rll pi/ EXHIBIT "C" to this Option Agreement and Escrow Instruutions is a docmnent entitled. "Declaration of Covenants,. Conditions and Restrictions and Reservation of Easements f0~ Stevens Square Parking Structure, which document has been reviewed and approved on February 3, 1982 by. both parties hereto and their respective ~ounsel. Said document is incorporated herein.by this reference as though fully set forth herein. EXHIBIT "C" Copies of CLTA standard coverage policy number OR-1315082 of First American Title Insurance Company dated June 23, 1981, and Preliminary Title Report Number OR-1337660 of First American Title Insurance Company dated February 3, 1982. EXHIBIT "D" POLICY OF TITLE INSURANCE LqS UED BY ir t.4mez'ican Title Zaeuraace Compa/ur SUBJECT TO SCHEDULE B AND THE CONDITIONS AND STIPULATIONS HEREOF, FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called the Company, insures the insured, as oi' Date of Policy shown in Schedule A. against loss or damage, not exceeding the amount of insurance stated in Schedule A, and attorneys' fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by ~id insured by reason of: I. Title to the estate or interest described in Schedule A being vested other than as s~ated therein: 2. Any defect in or lien or encumbrance on such title; 3. Unmarketability of such title; or 4. Any lack of the ordinary right of an abutting owner for access rD at least one physically open street or highway if the'land, in fact, abuts upon one or more such streets or h~ghways; and in addition, as to an insured lender only: 5. Invalidity of the lien of the insured morlgage upon said estate or imerest except to the extent that such invalidity, or claim thereof, arises out of the transaction evidenced by the insured mortgage and is based upon a. usury, or b, any consumer credit protection or truth in lending law;' 6. Priority of any lien or encumbrance over the lien of the insured mortgage, said mortgage being shown in Schedule 8 in the order of its priority; or 7. Invalidit'y of any assignment of the insured mortgage, provided such assignment is shown in Schedule B. IN WITNESS WHEREOF, First American Title Insurance Company has caused this policy to be signed and sealed by its duly author/zed officers as of Date of Policy shown in Schedule A. 31 715799 First American Title insurance Company S~-:HEDULE A COVERAGE OR-1315082 TOTAL FEE FOR TITLE, EXAMINATION AND TITLE IN:E;URANCE $1,208.50 AMOUNT OF INSURANCE: $440,000.00 DATE OF POLICY: dUNE 23, 1981 AT 4:00 P.M. 1. NAME OF INSURED: STEVENS SQUARE, A CALIFORNIA LIMITED PARTNERSHIP. 2. THE ESTATE OR INTEREST REFERRED TO HEREIN IS AT DATE OF POLICY VESTED IN: STEVENS SQUARE, A CALIFORNIA LIMITED PARTNERSHIP. THE ESTATE OR INTEREST IN THE LAND DESCRIBED IN SCHEDULE C AND WHICH IS COVERED BY THIS POLICY IS: A FEE AS TO PARCELS I AND 3. AN EASEMENT AS TO PARCEL 2. PAGE 2 CLTA S T C--.,~',/£~,-n, Rl:'l COVERAGE F'OL ICY OR-1" -~, .;. 1 ~ 002 SCHEDULE B THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE, NOR AGAINST COSTS, ATTORNEYS' FEES OR EXPENSES, ANY OR ALL OF WHICH ARISE BY REASON OF THE FOLLOWING: PART ONE: TAXES OR ASSESSMENTS WHICH ARE NOT SHOWN AS EXISTING LIENS BY THE RECORDS OF ANY TAXING AUTHORITY THAT LEVIES TAXES OR ASSESSMENTS ON REAL PROF'ERTY OR BY THE PUBLIC RECORDS. PROCEEDINGS BY A PUBLIC AGENCY WHICH MAY RESULT IN TAXES OR ASSESSMENTS, OR NOTICES OF SUCH PROCEEDINGS, WHETHER OR NOT SHOWN BY THE RECORDS OF SUCH AGENCY OR BY THE PUBLIC RECORDS. ANY FACTS, RIGHTS, INTERESTS OR CLAIMS WHICH ARE NOT SHOWN BY PUBLIC RECORDS BUT WHICH COULD BE ASCERTAINED BY AN INSPECTION OF THE LAND OR BY MAKING INQUIRY OF PERSONS IN POSSESSION THEREOF. EASEMENTS, LIENS OR ENCUMBRANCES, OR CLAIMS THEREOF, WHICH ARE NOT SHOWN BY THE PUBLIC RECORDS. DISCREPANCIES, CONFLICTS IN BOUNDARY LINES, SHORTAGE IN AREA, ENCROACHMENTS, OR ANY OTHER FACTS WHICH A CORRECT SURVEY WOULD DISCLOSE, AND WHICH ARE NOT SHOWN BY THE PUBLIC RECORDS. (A) UNPATENTED MINING CLAIMS; (B) RESERVATIONS OR EXCEPTIONS IN PATENTS OR IN ACTS AUTHORIZING THE ISSUANCE THEREOF~ (C) WATER RIGHTS, CLAIMS OR TITLE TO WATER. ANY RIGHT, TITLE, INTEREST, ESTATE OR EASEMENT IN LAND BEYOND THE LINES OF AREA SPECIFICALLY DESCRIBED OR REFERRED TO IN SCHEDULE C, OR IN ABUTTING STREETS, ROADS, AVENUES, ALLEYS, LANES, WAYS OR WATERWAYS, BUT NOTHING IN THIS PARAGRAPH SHALL MODIFY OR LIMIT THE EXTENT TO WHICH THE ORDINARY RIGHT OF AN ABUTTING OWNER FOR ACCESS TO A PHYSICALLY OPEN STREET OR. HIGHWAY IS INSURED BY THIS POLICY. ANY LAW, ORDINANCE OR GOVERNMENTAL REGULATION (INCLUDING BUT NOT LIMITED TO BUILDING AND ZONING ORDINANCES) RESTRICTING OR REGULATING OR PROHIBITING THE OCCUPANCY, USE OR ENJOYMENT OF THE LAND, OR REGULATING THE CHARACTER, DIMENSIONS OR LOCATION OF ANY IMPROVEMENT NOW OR HEREAFTER ERECTED ON THE LAND, OR PROHIBITING A SEPARATION IN THE OWNERSHIP OF A REDUCTION IN THE DIMENSIONS OR AREA OF THE LAND, OR THE EFFECT OF ANY VIOLATION OF ANY SUCH LAW, ORDINANCE OR GOVERNMENTAL REGULATION, CLTA STANDARD COVERAGE POLICY 0R-1315082 RIGHTS OF EMINENT DOMAIN OR GOVERNMENTAL RIGHTS OF POLICE POWER UNLESS NOTICE OF THE EXERCISE OF SUCH RIGHT~ APPEARS IN THE PUBLIC RECORDS, DEFECTS, LIENS, ENCUMBRANCES, ADVERSE CLAIMS. OR OTHER MATTERS (~) CREATED, SUFFERED, ASSUMED OR AGREED TO BY THE INSURED CLAIMANT; (B) NOT SHOWN BY THE PUBLIC RECORDS AND NOT OTHERWISE EXCLUDED FROM COVERAGE BUT KNOWN TO THE INSURED CLAIMANT EITHER AT DATE OF POLICY OR AT THE DATE SUCH CLAIMANT ACQUIRED AN ESTATE OR INTEREST INSURED BY THIS POLICY OR ACQUIRED THE INSURED MORTGAGE AND NOT DISCLOSED IN WRITING BY THE INSURED CLAIMANT TO THE COMPANY PRIOR TO THE DATE SUCH INSURED CLAIMANT BECAME AN INSURED HEREUNDER~ ¢C) RESULTING IN NO LOSS OR DAMAGE TO THE INSURED CLAIMANT; (D) ATTACHING OR CREATED SUBSEQUENT TO DATE OF POLICY; OR CE> RESULTIN~ IN LOSS OR DAMAGE WHICH WOULD NOT HAVE BEEN SUSTAINED IF THE INSURED CLAIMANT HAD BEEN A PURCHASER OR ENCUMBRANCER FOR VALUE WITHOUT KNOWLEDGE. PART TWO: I. GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1981-1982~ A LIEN NOT YET PAYABLE. 2. THE FACT THAT SAID LAND IS INCLUDED IN THE PROPERTY AFFECTED BY THAT CERTAIN "NOTICE OF THE APPROVAL & ADOPTION OF THE TUSTIN REDEVELOPMENT PLANn, RECORDED NOVEMBER 29, 1976 IN BOOK I197~, PAGE 35, OFFICIAL RECORDS. 3. ANY RESTRICTIONS COVERING THE FUTURE USE OF SAID LAND AS DISCLOSED BY A "STATEMENT FOR REDEVELOPMENT PROdECT" RECORDED BY THE CITY OF TUSTIN ON NOVEMBER 29, 1976 IN BOOK 11975, PAGE 35 OF OFFICIAL RECORDS, COVERING SAID AND OTHER LAND, 4. A DEED OF TRUST TO SECURE AN INDEBTEDNESS OF $4,300,000.00, RECORDED dUNE 23, 1981 IN BOOK i4112. PAGE 1638 OF OFFICIAL RECORDS, AS INSTRUMENT NO. 34889. DATED: MAY 20, 1981, TRUSTOR: STEVENS SQUARE, A LIMITED PARTNERSHIP. TRUSTEE: UNION BANK, A CALIFORNIA CORPORATION. BENEFICIARY: UNION BANK, A CALIFORNIA CORPORATION. PAGE SCHEDULE C THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF ORANGE, CITY OF TUSTIN AND IS DESCRIBED AS FOLLOWS: PARCEL 1: THE S:OUTH 50.00 FEET/OF THAT ~~OF LOTS 7, 8 ANO~?IN BLOCK 17 OF "A PART OF TUSTIN CITY", AS SHOWN ON MAP RECORDED 'lq~ BOOK 4~ PAGES 218 AND 219 OF MISCELLANEOUS RECORDS OF LOS AN~3ELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLUWo. BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 9; THENCE EAST 137.09 FEET TO THE NORTHWEST CORNER OF THE LAND CONVEYED TO CHAS. S. KELLY BY DEED RECORDED JANUARY 20, 1912 IN BOOK 206, PAGE 8 OF DEEDS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE SOUTH ALONG THE WEST LINE OF SAID LAND, 150.00 FEET TO THE SOUTHWEST CORNER THEREOF; THENCE WEST 136.93 FEET TO THE SOUTHWEST CORNER OF SAID LOT ~; THENCE NORTH 150.00 FEET TO THE POINT OF 'BEGINNING. PARCEL 2: ~ RIGHT OF WAY FOR 'ALLEY PURPOSES OVER THE SOUTH 10.00 FEET OF THAT PORTION OF LOTS 6 AND 7 IN BLOCK 17 OF "A P~RT OF~TUSTIN CITY", AS SHOWN ON A MAP RECORDED IN BOOK 4, PA~ES 21~ AND ~19 C~ ~ '.xMISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DE:~CRIBED ---/AS FOLLOWS. BEGINNING AT A POINT 141.83 FEET WEST OF THE NORTHEAST CORNER OF SAID BLOCK 17, SAID POINT BEING ALSO 162.07 FEET EAST OF THE NORTHWEST CORNER OF SAID BLOCK 17; THENCE SOUTH 150.00 FEET TO A oFPOINT 141.~9 FEET WEST OF THE SOUTHEAST CORNER OF LOT 4 OF SAID BLOCK 17, AND BEING ALSO 161.93~ FEET EAST OF THE SOUTHWEST CORNER LOT 9 OF SAID BLOCK 17; THENCE WEST 25.00 FEET; THENCE NORTH 150.00 FEET; THENCE EAST 25.00 FEET TO THE POINT OF BEGINNING. PARCEL 3: LOTS 10, 11 AND 12 IN BLOCK 17 OF A PART OF TUSTIN CITY, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGES 218 AND 219 OF MIS:CELLANEOUS RECORDS OF LOS ANOELES COUNTY, CALIFORNIA. WHB:CLO PAGE 5 GFELLE~ B~[OPMENT 2070 ~UBINESB CENTER DRIVE ~10 IRVINE, CALIFORNIA OR- ! S:37660 FORM OF POLICY COVERAGE REQUESTED: CALIFORNIA LAND TITLE ASSOCIATION STANDARD POLICY IN RESPONSE TO THE ABOVE REFERENCED APPLICATION FOR A POLICY OF TITLE INSURANCE, THIS COMPANY HEREBY REPORTS THAT IT IS PREPARED TO I$~UE, OR CAUSE TO BE ISSUED, AS OF THE DATE HEREOF, A POLICY OF TITLE INSURANCE IN THE FORM SPECIFIED ABOVE, DESCRIBING THE LAND AND THE ESTATE OR INTEREST THEREIN HEREINAFTER SET FORTH, INSURING AGAINST LOSS WHICH MAY BE SUSTAINED BY REASON OF ANY DEFECT, LIEN OR ENCUMBRANCE NOT SHOWN OR REFERRE~ TO AS AN EXCEPTION BELOW OR NOT EXCLUDE~ FROM COVERAG~ PURSUANT TO THE PRINTED SCHEDULES, CONDITIONS AN~ STIPULATIONS OF SAI~ POLICY FORM., THIS REPORT (AND ANY SUPPLEMENTS OR AMENDMENTS THERETO~ IS ISSUED SOLELY FOR THE PURPOSE OF FACILITATING THE ISSUANCE OF A POLICY OF TITLE INSURANCE AND NO LIABILITY IS ASSUMED HEREBY. IF IT IS DESIRED THAT LIABILITY BE ASSUMED PRIOR TO THE ISSUANCE O~ A POLICY OF TITLE INSURANCe, A BINDER OR COMMITMENT SHOULD BE REQUESTED. WILLIAM H. BRUNS - TITLE OFFICER TITLE TO SAID ESTATE OR INTEREST AT THE DATE HEREOF IS VESTED IN: STEVENS SQUARE. A CALIFORNIA LIMITED PARTNERSHIP. THE ESTATE OR INTEREST IN THE LAND HEREINAFTER DESCRIBED OR REFERRED TO COVERED BY THIS REPORT IS: A FEE. AT THE DATE HEREOF EXCEPTIONS TO COVERAGE IN ADDITION TO THE PRINTED EXCEPTIONS AND EXCLUSIONS CONTAINED IN SAID POLICY FORM WOULD BE AS FOLLOWS: PAGE I SECOND INSTALLMENT GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1~81-1~82, AMOUNT $726.26; CODE AREA 13-04~, A, P, NO. 401-~22-13, THE ABOVE DOES NOT INCLUDE A VETERANS DR HOMEOWNERS TAX EXEMPTION. 2. ANY RESTRICTIONS COVERING THE FUTURE USE OF SAID LAND AS DISCLOSED BY A "STATEMENT FOR A REDEVELOPMENT PROJECT" RECORDED BY THE CITY OF TUSTIN ON NOVEMBER 29, 1976 IN BOOK l1976,.PAGE 35 OF OFFICIAL RECORDS COVERING SAID LAND AND OTHER LAND. 3. A DEED OF TRUST TO SECURE AN INDEBTEDNESS OF $&O,O00. O0, RECORDED dANUARY 16, 1~81 IN BOOK 13~16, PAGE ~78 OF OFFICIAL RECORDS, AS INSTRUMENT NO, 17~90. DATED~ JANUARY 9, 1781. TRUSTOR: STEVENS SQUARE, A CALIFORNIA LIMITED PARTNERSHIP. TRUSTEE: CONTINENTAL AUXILIARY COMPANY, A CALIFORNIA CORPORATION. BENEFICIARY~ BANK OF AMERIOA NATIONAL TRUST AND SAVINGS A~$OCIATION, A NATIONAL BANKING ASSOCIATION, 4. A DOCUMENT ENTITLED COVENANT AND AGREEMENT TO HOLD PROPERTY AS ONE PARCEL EXECUTED BY STEVEN~ SQUARE, A CALIFORNIA LIMITED PARTNERSHIP RECORDED OCTOBER 23, 1~81 IN BOOK 14267, PAGE 407 OF OFFICIAL RECORDS. PAGE 0R-1337~60 DESCRIPTION ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, OF ORANGE, CITY OF TUSTIN, DESCRIBED AS FOLLOWS: COUNTY THAT PORTION.OF 5TH STREET AS SHOWN ON A MAP OF TUSTIN CITY RECORDED IN BOOK 4, PAGE 218 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE EAST %INE OF "C" STREET, AS SHOWN ON SAID MAP, 300.00 FEET SOUTH OF THE NORTHWEST CORNER OF BLOCK 17 OF TUSTIN CITY; THENCE EAST 150.00 FEET TO THE WEST LINE OF THE LAND CONVEYED TO N. F. RITCHEY BY DEED RECORDED MAY 5, 1904 IN BOOK 105, PAGE 202 OF DEEDS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE ALONG SAID WEST LINE AND ALONG THE WEST LINE OF THE LAND CONVEYED TO ARTHUR F. RITCHEY RECORDED MAY 5, I~04 IN BOOK 105, PAGE 203 OF SAID DEEDS, SOUTH 6~ FEET TO THE NORTH LINE OF BLOCK 24 OF SAID TUSTIN CITY; THENCE ALONG SAID NORTH LINE, WEST 150.00 FEET TO SAID EAST LINE OF "C" STREET; THENCE ALONG 5;AID EAST LINE, NORTH 66.00 FEET TO THE POINT OF BEGINNING. MHB:MF PLATS (AND CC&R'S, IF ANY) ENCLOSED. NOTE: ACCORDING TO THE PUBLIC RECORDS, THERE HAVE BEEN NO DEEDS CONVEYING THE PROPERTY IN THIS REPORT WITHIN SIX MONTHS PRIOR TO THE DATE OF THIS REPORT, EXCEPT AS FOLLOWS: NONE. RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: BALDIKOSKI, KLOTZ & DRAGONE/TE 270 Newport Center Drive Newport Beach, California 92C~0 Attention: Bruce H. Charles D~CLARATION OF COVENANTS, CONDITIONS, Rw~fRICTIONS AND ~ERVATION OF EASEMENTS FOR STEVENS S~JARE PARKING STRUCIV3RE TABLE OF CONTENTS FOR D~SLARATION OF COVENANTS, CONDITIONS, RW~TRICTIONS AND RESERVATION OF EASEMENTS FOR STEVENS SQUARE PARKING STRUCr~ DESCRIPTION PREAMBLE ARTICLE I Section 1.01 Section 1.02 Section 1.03 Section 1.04 Section 1.05 Section 1.06 Section 1.07 Section 1.08 Section 1.09 Section 1.10 Section 1.11 Section 1.12 Section 1.13 Section 1.14 Section 1.15 Section 1.18 Section 1.17 Section 1.18 Section 1.19 Section 1.9.0 Section 1.21 Section 1.22 Section 1.23 Section 1.24 Section 1.9.5 Section 1.2S ARTICLE II Section 2.01 Section 2~02 Section 2.03 DEFINITIONS Articles Association Board of Directors or Board Capital Improvement Asses~ne~t Co~lT~ttee of Development Con~nittee Corcmon Ar em.s Cond~d.nit~ Condomini~n Building Condomini~'n Doct.anents Condom~nit~ Plan Declarant Declaration Improvement Member Mortgage-Mortgagee-Mortgagor Ow~er Parking Structure Person Property Reconstruction Assessment Record-File R~gular Asses~nent Special Assessment Unit MEMBERSHIP Membership Transfer Voting Rights PAGE NO. 1 -i- TABLE OF CONTENTS (Continued) ARTICLE III PROPERTY RIGHTS IN THE C0NNDN AREA Section 3.01 Section 3.02 Section 3.03 Members' Easenents of Wnjo~ment Rights to Common Area Extent of Members' Easements ARTICLE IV COVENANTS FOR MAINTENANCE ASSESSMENTS Section Section Section Seckion Section Section Section Section Section Section Section 4.01 4.02 4.03 4.04 4.05 4.06 4.07 4.08 4.09 4.10 4.11 Creation of the Lien and Personal Obligations of Assessments Purpose of Assessments Regular Assessments Capital Improvement Assessnents Special Assess;nents Certificate of Payment Nonuse and Abandonment Percentage Rate of Asses~nent Exempt P~operty Offsets Collection of Regular Assessments ARTICLE V NONPAYMENT OF ASSESSMENTS Section 5.01 Section 5.02 Section 5.03 Sectio~ 4.04 Delinquency Notice of Lien Enforcements of Liens Exemption of Tustin Co.l~unity Redevelopment Agency ARTICLE VI THE ASSOCIATION Section Section Section Section Section Section Section Section 6.01 6.02 6.03 6.04 6.05 6.06 6.07 6.08 Formation and Membership General Association Rules Ent~ ,nd ~nergency Powers Delegation of Powers Acts of Association Priorities and Inconsistencies ~eetings, ~oard of Directors and Officers ARTICLE VII EASEN~NTS AND RIGHTS OF ENTRY Section 7.01 Section 7.02 Section 7.03 Co~on Area Easements (a) Access (b) Maintenance and Repair (c) Utility Easements (d) Encroachment Rights of Entry PAGE NO. 9 9 10 10 11 11 11 11 11' 11 13 13 14 15 16 16 18 18 18 18 18 19 20 20 20 20 21 21 21 -ii- TABLE OF CONTENTS (Continued) DESCRIPTION PAGE NO. ARTICLE VIII USE RESTRICTIONS Section Section Section Section Section Section Section Section Section 8.01 8.02 8.03 8.04 8.05 8.06 8.07 8.08 8.09 Per~tted Uses 22- Nuisances 22 Signs 23 Antennae 23 Drainage 23 Storage and Waste 24 Temporary Structures and Obstructions 24 Dsz~e to Conmon Area 24 Leases 24 ARTICLE IX ARCHI~, DEVELOt~ENT.AND LANDSCAPING PROVISIONS Section 9.01 Section 9.02 Section 9.03 DeveloDment Conmittee 25 Mechanics of Operation 25 (a) Required Approvals 25 (b) I~epa~ration and Su~ssion of 25 Plans (c) Discretionary Powers of the 25 Coranittee (d) Violations; Waiver 26 (e) Nonliability of Committee 26 Members Variance 27 ARTICLE X REPAIR AND ~AINTENANCE Section 10.01 Section 10.02 Section 10.03 Repair and Maintenance Duties of the 27 Association Special Po~ers of Association 28 Installation, Repair and Maintenance 28 Duties of O~ners ARTICLE XI Section 11.01 Section 11.02 Section 11.03 Section 11.04 Section 11.05 Section 11.06 ~Section 11.07 CO~ON AREA PROTtL-TION Association Control 29 Regulation of Parking 30 F~sements for Vehicular Traffic 30 Fzsements for City and County Use 30 Waiver of Use 30 Taxes 30 Municipal ExemPtion 31 -iii- ARTICLE XII Section 12.01 Section 12.02 Section 12.03 Section 12.04 Section 12.05 Section 12.06 Section 12.07 Section 12.08 ARTICLE XIII Section 13.01 Section 13.02 Section 13.03 ARTICLE XIV Section 14.01 Section 14.02 ARTICLE XV Section 15.01 Section 15.02 Section 15.03 Section 15.04 Section 15.05 Section 15.06 Sectio~ 15.07 Section 15.08 INSURANCE Duty of Obtain Insurance; Types Right and Duty of Owners of Insure Notice of Expiration Requirements Insurance Pr emit~ns Trustee for Policies Actions as T~ustee Annual Insurance Review Required Waiver DAMAGE OR LOSS TO IMPROVEMENTS Restoration of Conmon Areas Restoration Obligation of Owners Condemmation D~RATIONANDANENE~ Duration Amendment GEN~P~kL PROVISIONS Legal Proceedings Severability Interpretation Hold Harmless and Indemnification Mergers or Consolidations No Public RiEht or Dedication Nonliability and Indemnification Notices 32 32 33 33 33 33 34 34 35 35 35 36 36 37 37 37 37 38 38 38 39 -iv- DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS AND Rw~ERVATION OF EASEMENTS FOR STEVENS SQUARE PARKING STRUCTURE THIS DECLARATION is made on by STEVENS SQUARE, a California limited partnership ferred to as "Declarant"). , 1982, (hereinafter re- PREAMBLE A. Declar-nt is the owner of a certain parking structure located at in the City of Tustin, County of Orange, State of California. The parking structure and the real pro- perty on which the parking structure is located are more particularly described in Exhibit "~' attached hereto and incorporated herein by this reference and are hereinafter collectively referred to as the "Property". B. Declarant is about to sell, lease and/or convey Condomini~ns as herein defined on the Property and Declarant desires and intends to hereby subject the same, purs,,~nt to California Civil Code Section 1355, to certain limitations, restrictions, conditions and covenants herein set forth. C. Declarant will cause to be recorded in the Official Records of Orsnge County, California, a Condominium1 Plan as the s~me is des- cribed in California Civil Code Section 1381 (the "Condoalinium Plan"). D. Declarant has deemed it desirable to establish covenants, conditions and restrictions which shall run with the land upon the Property and each and every Condominium and portion thereto, which will constitute a general schene for the use, occupancy and enjoyment there- of, all for the purpose of enhancing and protecting the value, desira- bility and attrgctiveness thereof. E. It is desirable for the efficient preservation of the value, desirability and attractiveness of the Property to create an association to which should be delegated and assigned the powers of mintaining and administering the Common Area, and the Project and administering and enforcing these covenants, conditions and restrictions and collecting and disbursing funds purs,~mnt to the assessment and charges hereinafter created and referred to. F. Stevens Square P~rking Structure Condomini~n Association, a nonprofit California corporation, has been or will be created under the laws of the State of California for the purpose of exercising the powers and functions aforesaid. All persons who purchase Condomini~ns within this Project shall be Owners as defined herein and shall thereby auto- matically become Me~bers of said Association smd shall be subject to its powers and jurisdiction. G. Declarant will convey without cc~pensation various tenancy in common interests in the fee title to the Property tO Stevens Square Parking Structure Condominitm~ O~ners as tenants-in-common. H. Declarant hereby declares that all of the Property shall be held, leased, occupied, sold, and conveyed subject to the following covenants, conditions, restrictions and easements, all and each of which are for the purpose of enhancing and perfecting the value, desirability, and attractiveness of the Property as a parking structure and in fur- therance of a general plan for the protection of the Property, or any portion thereof. 'Ail, and each of these covenants, conditions, restric- tions, and easements are hereby imposed as equitable servitudes upon the Property, shall run with the Property, and shall be binding on all parties having or acquiring any right, title or interest in the Pro- perty, or in any part thereof, and their successors and assigns. ARTICLE I DEFINITIONS The following werds, when used in this Declaration and in any Declaration of Amendment, unless otherwise provided, shall have the following mea.nings: Section 1.01. "Articles" shall mean the Articles of Incorpora- tion of the Association which have been or may hereafter be filed in the office of the Secretary of the State of California, a true copy of which is attached hereto, marked Exhibit '~" and incorporated herein by this reference, as such Articles my be amended from time to time. Section 1.02. "Association" shall mean Stevens Square Parking Structure Condcmini~m~ Association, a- California corporation, its suc- cessors and assigns. Section 1.03. '~oard of Directors" or "Board" shall mean the Board of Directors of the Association. Section 1.04. '~By-Laws" shall mean the By-Laws of the Associa- tion, as adopted by the Board initially in the form of Exhibit "C" attached hereto and incorporated herein by this reference, as such By-Laws may be amended from time to time. Section 1.05. "capital Improvement Assessment" shall mean a -2- charge against each Owner and his interest in the Property, representing a portion of the cost to the Association for installation or comstruc- tion of any capital improvements on any of the Con, non Areas, which the Association may from time to time authorize in accordance with this Declaration. Section 1.06. "Committee" or "Develounent Committee" shall mean the single Architectural, DeveloI~nent and Landscaping Con~ittee formed purs, mnt to Article VIII hereof. Section 1.07. "Con~n Areas" shall mean those portions of the Property to which title is held by all of the owners in common, and managed by the Association for the common use of all of the Owners or over which the Association has an easement for ~ntenance and repair, excepting the individual units. Said Cor~non Areas are described in more detail in Exhibit "U' attached hereto and incorporated herein by this reference. Section t.08. "Common Expenses" shall mean the actual and estimated costs of: maintenance, management, operation, repair and replacement of the Property (including unpaid Assessments of all kind and those costs not paid by the Owner responsible for paymemt); the costs of all coammnly metered utilities, including without limitation water furnished to the Property, and other commonly metered charges for the Property; costs of refuse storage and collection; costs of manage- ment and administration of the Association including, but not limited to, compensation paid by the Association to managers, accountants, attorneys and other emploMees; the costs of all services benefiting the Common Areas; costs of insurance and bonding of the members of the management body, taxes paid by the Association and amounts paid by the Association for discharge of any lien or encumbrance levied against the Co~on Areas; and the costs of any other it~ or items designated by the Association for any reason in connection with the Property for the benefit of all of the Owners. Section 1.09. "Condominium" shall mean an estate in real pro- perty as defined in California Civil Code $783, consisting of title to a unit and an undivided interest in the Common Area. The ownership of each condominium shall include the ownership of a unit, membership in the Association, and a nonexclusive easement for ingress and egress over the common area. E~ch unit shall be a separate freehold estate con- sisting of the space described and defined in the Condominium Plan structure so described and the airspace so encompassed. Section 1.10. "Condominium Building" shall mean the Parking Structure containing condominium units. Section 1.11. .Condominium Doc~ents" means and includes this Declaration as it may be amended from time to time, the exhibits, if -3- any, attached thereto, the Articles, the Bylav~ of the Association, s_nd the rules and regulations for the members as established from time to time. Section 1.12. "Condomini~n Plan" shall mean and refer to the recorded diagrsn~natic floor plan of the units built on the Property which identifies each unit and shows its dimensions purs, mnt to Civil Code Section 1.1S. "Declarant" shall mean STEVENS SQUARE, a Califor- nia limited partnership and its successors and assigns. Section 1.14. "Declaration" shall mean this Declaration of Covenants, Conditions and Restrictions, and Reservation of Easements, as it may be amended from time to time as provided herein. SeCtion 1.15. "Improvement" shall mean all structures and appurtenances thereto of every kind, whether above or below the land surface, including but not limited to, buildings, utility systems, walkways, driveways, parking areas, loading areas, landscaping items, fences, walls, decks, stairs, poles, landscaping vegetations, signs, exterior fixtures and any other structure of any kind. Section 1.16. "Member" shall mean every person who holds a membership in the Association, as provided in Section 2.01 below. Section 1.17. "~rtgage" - "Mortgagee" - "Mortgagor". A mo~t- gage shall mean any mortgage or deed of trust or other conveyance of a unit or interest therein to secure the performance of an obligation which will be void and reconveyed upn completion of such performance. Reference in this Declaration to a mortgagee shall be dc~---md to include the beneficiary of a deed of trust; reference to a mortgagor shall be deemed to include the trustor of the deed of trust. Section 1.18. "Owner" shall mean the person, including Decla- rant, holding fee simple interest of record to any Unit or interest therein, including sellers under executory contracts of sale, but excluding those having such interest merely as security for the perfor- mance of an obligation. For purposes of Article VII only, unless the context other-wise requires, O~uer shall also include the guests, invi- tees, licensees and lessees of any Owner. Section 1.19. "Parking Structure" shall mean the structure referred to in the Preamble to this Declaration in which the units are located. Section 1~20. "Person" shall~mean a natural individual or any other entity, including, but not limited to, corporations, partnership or other business associations, with the legal right to hold title to real property, Section 1.21. "Property" shall mean all the property described in the Preamble of this Declaration. Section 1.22. "Reconstruction Assessment" shall mean a charge against each Owner and his interest in the Property, representing a portion of the cost to the Association for repair or replacement of any portion of the damaged or lost Improvements in the Common Areas, as provided for in this Declaration. Section 1.23. "Record" - "File" shall mean, with respect to any document, the recordation thereof, and with respect to any mp, the filing thereof, in the Office of the Recorder of Orange County, State of California. Section 1.24. "Regular Assessments" shall mean the annual charge against each Owner and his interest in the Property, representing a portion of the total, ordinary costs of maintaining, operating, im- proving, repairing, replacing and managing the Conxnon Areas, which shall be paid by each Owner to the Association, to satisfy Con, on Expenses as further provided herein. Section 1.25. "Special Assessment" Shall mean a charge against a particular Owner and his interest in the Property, directly attributable to, or reimbursable by, the Owner, equal to the cost incurred by the Association for corrective action performed pursuant to the provisions of this Declaration, plus interest and other charges thereon as provided for in this Declaration. Section 1.26. "Unit" shall refer to the individual condominit~ns within the Parking Structure which condominiums are not owned in cor~non by the Owners and which are estates of inheritance or perpetual estates as defined under California Civil Code §783. A description of the condominiums and their physical dimensions is attached hereto in Exhibit "~'. -5- ARTI~W~E II ~BERSHIP Section 2.01. Membership. The Owner of each Unit shall be a Member of the Association and shall remain a Member thereof until such time as his ownership ceases. Ownership of a Unit shall be the sole qualification for Membership in the Association. All memberships shall be appurtenant to a Unit, and with the exception of Declarant, an individual or entity shall be deemed an O~uer of a Unit only upon the close of escrow for the sale of a Unit to said individual or entity. Except as may otherwise be provided hePein, the rights, duties, privi- Leges and obligations of all Members of the Association shall be as set forth in the Declaration, the Articles of Incorporation and By-Laws of the Association, and the rules and re~Llations of the Association adopted in accordance with the By-Laws of the Association. Section 2.02. Transfer. Except as otherwise provided for herein, the Membership held by any Owner shall not be transferred, pledged or alienated in any way, except upon the sale of such Owner's Unit, and then only to the purchaser of such interest in such Unit. Any attempt to make a prohibited transfer is void and will not be reflected upon the books and records of the Association. ~he Owners of each Unit, at such Owner's sole cost and expense shall have the right to subdivide their Unit in such m~nuer as such Owner de~s desirable, and such Owner shall have the further right to convey the subdivided parcels therein. Tae Owners of such subdivided parcels shall share the original Owner's membership, including voting rights. Declarants and its successors in interest and each Owner of a Unit agree to fully cooperate in the subdivision of the Units and to do all things and sign all doctnnents reasonably required or convenient in connection therewith. Section 2.03. Voting Rights. All voting rights shall be subject to the restrictions and limitations provided herein and in the Articles and Bylaws of the Association. Unit 1. The Owner(s) of the Unit described in Exhibit "~' attached hereto as "Unit 1" shall have eighty-one (81) votes. When more than one (1) individual or entity are Owners of this Unit, the votes allowable to the Unit described, herein shall be exercised as they among th~nselves determine, but in no event shall more votes than those authorized under this par~raph be cast with respect to this Unit. Unit 2. The Owner(s) of the Unit described in Exhibit "F' attached hereto as "Unit 2" shall be entitled to eighty-one (81) votes. When more than one (1) individual or entity are Owners of this Unit, or the Improvements thereon, the votes allowable to this Unit described herein shall be exercised as they among themselves determine, but in no event shall mope votes than those authorized undeP this paragraph be cast with respect to this Unit. -6- ARTICLE III PROPERTY RIGHTS IN THE (DMMON AREA Section 3.1. Members' Easements of Enjoyment. Subject to the provisions of Section 3.3 below, every Member shall have a right and easement of access, use and enjoyment in and to the Conmon Area and such easement shall be apurtenant to and shall pass with o~nership of every Condominit~n subject to Assessment. Section 3.2. Rights to Cotton Area. Declarant shall convey to each Owner the following Dercentage undivided interest as a tenant-in- common to the Conraon Area: Owner of Unit 1 - 38.38~ Owner of Unit 2 - 61.62~. Section 3.3. Extent of Members' Easements. The rights and easements of access, use and enjoyment to the Common Area created hereby shall be subject to the following: (a) The right of the Association to borrow money for the purpose of improving the C~,~-on Area and facilities thereon, if any, and in aid thereof, to deed in trust the said Comuon Area; provided, how- ever, that the rights of any beneficiary under such deed of trust shall be subordinate to the rights of the Me~bers. (b) The right of the Association to take such steps as are reasonably necessary to protect the Common Area against foreclosure; and (c) The right of the Association to suspend the voting rights of a Member for any period during which any Assessment against the Condominium of such Member remains unpaid and delinquent; and (d) The right of the Association to dedicate or transfer all or any part of the CotmDn Area to any public agency, authority or utility or any other entity and subject to such conditions as may be agreed to by the Members; provided, however that no such dedication or transfer shall be effective unless approved by the vote or written consent of Members entitled to exercise not less than two-thirds (2/3) of the voting power of the Membership and an instrument in writing is -7- recorded and signed by the Sec£etary of the Association certifying that such dedication or transfer has been approved by the required vote and/or written consent; provided, further, the granting of easements for public utilities or for other public purposes coasistent with the intended use of the Common Area shall not require the prior written consent of Men~bers of First Beneficiaries; and (e) The right of the Association to establish and enforce reasonable rules and regulations pertaining to the use and enjoyment of the Common Area and the facilities thereon; and (f) The right of the Association to perform its duties and exercise its powers under Article 8 hereof, including the power to grant easements on the Common Area as provided in said Article; and (g) Other rights of the Association, the Architectural Committee,' the O~ners and Declarant with respect to the Corrmon Area, as may be provided for in this Declaration. Section 3.4. Delegation of Use. Any Member may delegate, in accordance with the Bylaws, his right of use and enjoyment to the Co~lon Area to his employees, clients, agents, invitees, tenants or sublessees. -8- ARTICLE IV Section 4.01. Creation of the Lien and Personal Obligations of Assessments. Declarant, for each Unit owned by Declarant, hereby covenants and agrees to pay, and each Unit Owner or owner of an interest in a Unit, by acceptance of a deed to a Unit or an interest therein, whether or not it shall be so expressed in any such deed, is dc~-~ed to covenant and agree to pay to the Association all Regular Assessments, Special Assessments, Reconstruction Assessments and Capital Improvement Assessments, as such Assessments may be fixed, established and collected from time to time as provided herein. Ail such assessments, together with interest, costs, and reasonable attorney's fees, shall be a sepa- rate~ distinct and personal obligation of the Owner at the time the assessment falls due, shall bind his heirs, successors in interest, devisees, personal representatives and assigns and shall be a continuing lien upon the Condominium Unit against which each Assessment is made. This lien shall become effective upon recordation of a Notice of Claim of Lien in accordance with the terms of this Declaration. This personal obligation cannot be avoided by abandonment of the Unit or interest therein or Improvements thereon or by an offer to waive use of the Section 4.02.. Purpose of Assessments. 5he assessments levied by the Board of Directors on behalf of the Association shall be used exclusively to promote the health, safety and welfare of the Members including the enhancement of the value and attractiveness of the Pro- perty and for the operation, replacement, ia~rovement and maintenance of the Con, non Area. Disbursements from the maintenance fund of the Asso- ciation shall be made by the Board for such purposes as may be necessary for the discharge of its responsibilities herein. Nothing in this Declaration shall be construed in such a way as to limit the right of the Board to use any Regular Assessr~ents to abate any annoyance or nuisance emanating from outside the physical boundaries of the Property. Special, Capital and Reconstructive Asses~nents shall be made exclu- sively for the purposes for which such Assessments were levied as provided for in this Declaration. Section 4.03. Regular Asses-~ents. (a) Amount and Time of Payment. Regular Assessments shall be levied on a calendar or fiscal year basis ("Assessment Period") as determined by the Board and the amount and time of payment of Regular Assessments shall be determined by the Board after giving due consi- deration to the Coranon Expenses of the Association. In the event the amount budgeted to meet the Coranon Expenses for an Assessment Period -9- proves to be excessive in light of the actual Conm~n Expenses, the Board in its discretion may, by resolution, reduce the smount of the Regular Asses~nents. (b) Date of Commencement of Regular Assessments. The Regular Assessments provided for herein shall covalence ~s to a Condomi- ni~n on the first day of the month following the conveyance of title of such Condominit~n to an Owner (other th~n the Declarant). (c) Asses~nent Procedures. At lesst thirty (30) days in advance of e~ch Assessment Period, the Board shall estimate the total Co,mon Expenses to all incurred by the Association for such forthcoming Assessment Period and shall at that time determine and fix the amount of the Regular Assessment agsinst each Condominium subject thereto for such Assessment Period. Written notice of such Regul~.r Assessment shall be sent to every O~ner subject thereto at least fifteen (15) days in advance o~ each Asses.~ment Period. E~ch Owner shs_ll thereszfter p~y to the Association his Regular Assessment in installments ss established by the Board. In the event the Board shall determine at ~ny time that the Regular Assessments levied for a current Assessment period a~e, or ~ill become, inadequate to meet all Common Expenses for shy reason, it shall inm~ediately determine the approximate amount of such inadequacy, issue a suppl~ental estia~te of the total Co~on Expenses and revise and fix the s~ount of Regular Assessments ~inst e~ch Owner. (d) Regular Assessment Limitations. No Regular Assessment for an Assessment Period shall be in sm smount ~hich is more than t~enty percent (20~) greater ths_n the Regular Asses~lent for the in~nediately preceding Assessment Period without the approval by vote or written consent of a majority of the Members. Sec~io~ 4.04. Capital Improvement Asses~imts. In addition to Regular Asses~ents, the Association may levy for shy Assessment Period, Capital Improvement Assessments applicable to that Assessment Period only for the purpose of defraying, in whole or p~rt, the cost of any construction or reconstruction, unexpected reps/r or replacement of a described capital improvement upon the Coranon Area, to the extent the same is not covered by the provisions for Reconstruction Assessments herein, including the necessary fixtures and personal property related thereto; provided that any such capital Improv~nt of the budgeted Con, non Expense for such Assessment Period shall have the approval by vote or ~ritten consent of a majority of the M~mbers. Capital Improve- ment Assessments shall be due and'payable at the times and in the amount fixed by the Board. Section 4.05. Special Assessments. Special Assessments may be levied (a) by the Board from time to time against Condominiums with -10- respect to Which particular costs or expenses have been incurred by the Association for materials or services furnished at the request, or with the consent, of the Owaer of s_ny such Condomini~n~ or (b) by Declarant and/or the Association in accordance with this Declaration. Speci&l Assessments levied by the Association shall be due and payable at the times and in the smounts which Declarant establishes. Section 4.06. Certificate of Payment. Upon demand, the Associa- tion shall furnish to any Owner liable for Asses~zents a certificate in writing signed by an officer or authorized s~ent of the Association setting forth whether said Assessments or any portions thereof have been paid. Such certificate shall be conclusive evidence of payment of any Assessments or portions thereof therein stated to have been paid. A reasonable cha/-ge m~y be made by the Board for the iss,,~nce of such certificate. Section 4.07. Nonuse and Abandonment. No O~ner may waive or escape personal liability for the Assessments provided for herein, nor relesse his Condominiun fro~ the liens and charges hereof, by nonuse of the Cor~aon Area or abandonment of his Condominitm~. Section 4.08. Percentage Rate of Assessment. All Regular, Capital Improvement and Reconstruction Assessments shall .be fixed at the following rates for e~ch Condomini%m~ Uhit: Unit 1 - 38.38~ Unit 2 - 61.62~ Section 4.09. Exempt P~operty. The following property subject to this Decla~ation shall be exempt from the Asses..~m~nts, charges and liens created herein: (a) all Cora~on Area; and (b) all properties exempted from t~xation bM the la~s of the State of California, upon the terms and to the extent of such legal exemption. Section 4.10. Offsets. All Assessments shall be payble in the a~nount specified in the Assessment levied by the Association or Decla- rant and no offsets z~ainst .such amount shall be permitted for any reason, including~ without limitation, a claim that the Association is not properly exercising its duties of maintenance or enforcement. Section 4.11. Collection of Regular Asses~nents. From and after the date of cor~nencement of Regul~ Assessments purs~,nt to Section 4.03(b) above, the Board shall fix and collect from each Member his share of the Regula~ Assessments in accord with Section 4.08. Regula~ Assessments for fractions of any month involved shall be prorated. At the end of any fiscal year of the Association, the MembeFship may determine that all excess assessment funds may be returned to the -11- Members proportionately, according to their contributions, or may be retained by the Association and used to reduce the following year's Regular Assessments. In any voluntary or involuntary conveyance of a Unit or any interest therein, or the Improvements thereon, the new O~ner ("Purchaser") shall be jointly and severally liable with the previous Owner ("Seller") for all unpaid installments of assessments levied by the Board of Directors against the Seller for his share of Re~Llar Assessments up to the date of Close of Rscrow of the grant or convey- ance, without prejudice to the right of the Purchaser to collect from the Seller therefor. However, any such Purchaser shall be entitled to a statement from the Board of Directors or the ~anagement ~ent of the Association, as the case may be, setting forth the amount of the unpaid assessments against the Seller due the Association; and such Purchaser shall not be lisble for, nor shall the interest in the Unit conveyed be liable for any unpaid assessments levied by the Board of Directors against the Seller in excess of the remount set forth in the statement; provided, however, that the Purchaser shall be personally liable for any and all installments of assessments and other charges becoming due after Close of Escrow. Notwithstanding the foregoing, any first ~ortg~ee for value who obtains title to a Unit or any interest therein, or to such Improvements pursuant to the remedies provided in the ~ort~s~e or foreclosure of the ~ortga~e, shall not be liable for u~paid assessments or charges ~ainst the mortgs~ed Unit which accrue prior to the time such Mortgagee acquires title to that Unit, or any interest therein, or such Improvements. -12- ARTICLE V NO~AYNENTOF ~S~S~{ENTS Section S.O1. Delinquency. Except as provided in Section 4.04, any installment of any asses~nent provided for in this Declaration shall become delinquent if not paid on the due date as established by the Board of Directors of the Association. With respect to each installment of an assessment not paid within ten (10) days after its due date, the Board of Directors may, at its election, require the delinquent Owner 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 sans, calculated from the date of delinquency to and including the date full payment is received by the Association. If any installment of a Regular Assessment is not paid within thirty (30) days after its due date, the Board may mail a notice to the Owner and to the first Mortgagee, if any, of such Owner. ~he 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 is mailed to the Owner, by which such default must be cured; and (4) that failure to cure the default on or before the date specified in the notice may result in acceleration of the balance of the installments of the Regular Assessment for the then current fiscal year and sale of Owner's interest in the Unit. ~he notice shall further inform the Owner of his right to cure after acceleration. If the delinquent installments of the Regular Assessment and any charges thereon are not paid in full on or before the date specified in the notice, the Board at its option my declare all of the unpaid balance of the annual Regular Asses~nent for the then current fiscal year attribu- table to that Owner and his interest in a Unit, to be in~iately due and payable without further demand and may enforce the collection of the full Regular Asses~nent and all charges thereon in any manner authorized by law and this Declaration. Section $.02. Notice of Lien. Except as provided in Section 5.04, the Board of Directors 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 amses~nent or installment thereof, levied by the Association against any O~ner. Such Notice of Lien shall state the amount of such amsesmnent or installment, as the came may be, and other authorized charges and interest, including the cost of pre- paring and recording such Notice of Lien, the expenses of collection in connection with any delinquent installments, reasonable attorney's fees, a sufficient description of the Unit or interest therein against which the same ham been ~ssessed, the name of the Owner thereof, and the name and address of the Association. Such Notice of Lien shall be signed by an authorized representative of the Association, including the attor- -13- ney(s) or property management company and its employees, then repre- senting the Association. Upon payment to the Association of the full amount claimed in the Notice of Lien, or other satisfaction thereof, the Board of Directors shall cause to be recorded a Notice of Satisfaction and Release of Lien ("Notice of Release") stating the satisfaction and release of such amount cl2~med. ~he Board of Directors m~y de~r~nd alld receive fro~ the applicable Owner a reasonable charge for the prepara- tion and recordation of such Notice of Release before 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 su~ns stated in the Notice of Lien. Section 5.03. Enforcement of Liens. Except as provided in Section 5.04, all stains assessed in accordance with the provisions of this Declaration shall constitute a lien on the respective Unit or interest therein and shall be prior and superior to all other liens, except (1) all taxes, bonds, assessments and other levies which, by law, would be superior thereto, and (2) the lien or charge of any first Mortgage of record (meaning any recorded Mortgage or deed of trust with first priority or seniority over other Mortgages or deeds of trust) made in good faith and for value and recorded prior to the date on which the assessment lien became effective, subject to the provisions of this Declaration. Asses~nent liens shall become effective upon recordation of the Notice of Lien in the mmnner provided in Section 5.02. It shall be the duty of the Board of Directors to enforce the collection of any amounts due under this Declaration by one or more of the alternative means of relief afforded by this Declaration. Assessment liens may be enforced by sale of the interest of such Owner in the Unit or interest therein by the Association, its attorney or other Person authorized to make the sale., after failure of the Owner to pay an assessment, or installment thereof, as provided herein. Such sale shall be conducted in accordance with the provisions of the California Civil Code, appli- cable to the exercise of powers of sale in Mortgages and deeds of trust, or in any ~l~lner pernlitted by law. An action may be brought to fore- close the lien of the Association by the Board, or by any Owner if the Board fails or refuses to act, 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 (10) days have expired since a copy of the Notice of Lien was mailed to the Owner affected thereby, and subject to the provisions of Section 5.01 in the event that the Board accelerates the due date of any Regular Assessment installments. In any such foreclosure, the Owner shall be required to pay a reasonable rental for the Unit or interest therein and any Improvements thereon and the plaintiff in such foreclosure action shall be entitled to the appoint- ment of a receiver to collect the same. The Association, through its agent, shall have the power to bid on the Unit or interest therein and Improvements at foreclosure sale, and to acquire and hold, lease, mortgage and convey the same. A suit to recover a money judgment for unpaid Regular Assessments shall be maintainable without foreclosing or waiving the lien securing the same, but this provision or any institu- tion of suit to recover a money judgment shall not .constitute an affir- mation of the adequacy of money damages. Any recovery resulting from a suit in law or equity initiated pursuant to this Section may include reasonable attorney's fees as fixed by the Court. Section 5.04. Exemption of Tustin Community Redevelopment Asency. Notwithstanding anything contained in this Declaration to the contrary, should the Tustin Community Redevelopment Agency (hereafter referred to as '~fustin") become an O~ner of the Association, the Asso- ciation's sole and exclusive remedy for unpaid assessments of any kind by Tustin shall be an action for damages. -15- A~TICLE VI THE ASSOCIATION Section 8.01. Formation and Membership. ~he Association shall be incorporated under the name of STEVENS SQUARE PARKING STRUClWJRE CONDO~INIU~ ASSOCIATION, as a corporation not for profit under the Nonprofit ~utual Benefit Corporation Law of the State of California. Section 8.02. General. In addition to the duties and powers enumerated in its Articles and Bylaws, or elsewhere provided for herein, and without limiting the generalities thereof, the Association shall, (a) Enforce the provisions of this Declaration, the Articles and the Bylaws by appropriate means and carry out the obligations of the Association hereunder, including without limitation, the expenditure of funds of the Association, the employment of legal counsel, the commence- ment of actions, the promulgation of the Association Rules as provided in the Bylaws and a Section of this Article, which shall include the establishment of a system of reasonable disciplinary proceedings, including, without limitation, fines or penalties, enforceable as Special Assessments, also as provided for in the Bylaws; (b) P~y taxes and Assess~ents which are or could become a lien on the Common Area or some port/on thereof; (c) Contract for and maintain such policy or policies of insurance as my be required by the Declaration or as the Board dc~--ns necessary or desirable in furthering the purposes of and protecting the interest of the Association and its Members, and review the effective- ness and adequacy of such policies on an annual basis; (d) Contract for materials and/or services for the Co~m~n Area or the Association; (e) Delegate its powers to conm~ittees officers, or employ- ees as expressly authorized in the Declaration, Articles and Bylaws; (f) Formulate rules of operation of the Common Area for adoption by the Association; (g) Initiate and carry out disciplinary proceedings against Members for violations of provisions of the Declaration, Articles and Bylaws in accordance with procedures set forth in the Declaration, Articles and Bylaws. (h) Enter upon any Unit Where necessary in connection with -16- construction, maintenance or repair for the benefit of the Corrmon Area or Owners; (i) Obtain, for the benefit of the Con. on Area, all water, gas and electric and refuse collections and other services. (j) Grant easements where necessary for utilities and sewer facilities over Con, non Area to serve the Property; (k) Establish and m~.iutain a working capital and contingency fund in an amount to be determined by the Board; (1) Have the duty to m~iutain architectural control over the Property and appoint an Architectural Committee in connection therewith, pursuant to this Declaration; (m) Fix and levy from time to time pur~mnt to this Decla- ration and the Bylaws, Assessments upon the Members; determine and fix the due date for the payment of such Assessments and the date upon which the smme shall become delinquent; provided, however, such Assessments shall be fixed and levied as authorized in the Declaration and in performing or causing to be performed any of the purposes of the Asso- ciation for the general welfare of its Members, and the Board is hereby authorized to incur any and all such expenditures for any of the fore- going purposes and to provide adequate reserves for replacements as it shall be deemed to be necessary or advisable in the interest of the Association or welfare of its Members. (n) Borrow money and incure indebtedness for the purposes of the Association and cause to be executed and delivered therefor, in the Association's name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges or other evidence of debt and security there- fore; (o) Negotiate and enter into contracts with potential beneficiaries and mortgage insureres and guarantors as may be necessary or desirable to facilitate the availability of loans secured by Deeds of Trust upon the Condominiums. (p) Maintain, or cause to be maintained the Common Area (including any drainage or irrigation facilities or systems located thereon), in a neat, orderly, safe and sanitary condition (including the repair and replacement of landscaping and improvements when necessary or appropriate) and in such a manner as to enhance their appearance, maintain and preserve established slope ratios, prevent erosion or sliding problems and to facilitate the orderly discharge or water through established drainage systems and patterns. -17- Section 6.03. Association Rules. 'Uae Association shall also have the power, as provided in the BFlaws, to adopt, amend, and repeal such rules and regulations as it deems reasonable (the "Association Rules"). ~/ue Association Rules shall govern such matters in furtherance of the purposes of the Association, as the Board shall deem appropriate, including, without limitation, the use of the Corrmon Area; provided, however, that the Association Rules may not discriminate among the Owners, and shall not be inconsistent with this Declaration, the Arti- cles, or Bylaws. A copy of the Association Rules as they may from time to time be adopted, amended or repealed, shall be mailed or otherwise delivered to each Owuer in the same manner established in this Declara- tion for the delivery of notices. Upon such mailing or delivery and posting, said Association Rules shall have the same force and effect as if they were set forth in and were part of this Declaration. The Association Rules, as adopted, amended or repealed, shall be available at the pri. ncipal office of the Association to each Owner and Institu- tional Mortg~gse upon request. In the event of any conflict between any such Association Rules and any other provisions of this Declaration, or the Articles or Bylaws the provisions of the Association Rules shall be deemed to be superseded by the provisions of this Declaration, the Articles or Bylaws to the extent of any such inconsistency. Section 6.04. Entry and ~nergency Powers. The Association or any person authorized by the Association may enter any Unit in the event of any emergency involving illness or potential danger to life or property, or in any nonemergency situations, after reasonable notice and at reasonable hours, for the purpose of perfonming its duties and exercising its powers as set forth in this Declaration, including entry when necessary in connection with construction, maintenance, or repair for the benefit of the Con1~on Area or the Owners. Any damage caused by said entry shall be repaired at the cost of the Association. Section 6.05. Delegation of Powers. /he Association shall have the right to delegate any of its powers according to law under this Declaration, the Articles and Bylaws; provided, however, no such delega- tions, whether to a professional management coillpany or otherwise, shall relieve the Association or its obligations to perform such delegated duty. Section 6.0~. Acts of Association. All lawful agrc~--~ents and determinations made by the Association in accordance with the applicable statutes of the State of California and the provisions of this Declara- tion, the Articles and the Bylaws shall be binding upon all Owners, their successors and assigns. Section 6.07. Priorities and Inconsistencies. If there are conflicts or inconsistencies between this Declaration and either the -18- Articles of Incorporation or the By-Laws of the Association, the terms and provisions of this Declaration shall prevail. Section 6.08. ~{eetings, Board of Directors and Officers. Except as provided to the contrary herein all matters relating to: the meet- ing, special or annual, of the Members of the Association; and the Board of Directors, including, but not limited to, their m~nber, powers and duties, election, term of office, vacancies, removal and/or meetings, regular or special, shall be governed by the terms of the Association's By-Laws · -19- ARTICLE VII EASEMENTS AND RIGHTS OF ENTRY Section 7.01. Common Area. Subject to Section 7.03 below, Declarant hereby grants to the Association an easement or easements over the Conmon Area for purposes of maintenance thereof, together with a license in favor of the Association, its agents and representatives, to traverse upon such additional conti~uous property as shall be necessary to gain access to such Areas, over ~hich said easement or easements have been granted and to gain access to any Common Area. Each Owner a~rees, for himself and his heirs, successors, executors, administrators and assigns, that he will permit free access by the Association and its authorized agents and representatives for the purpose of exercising its rights and duties with respect to the Common Area. The Association shall have the right to repave, reline and otherwise modify and to maintain the parking spaces and other matters on the Common Area. Section 7.02. Easements. (a) Access. Declarant expressly reserves for the benefit of the Owners in the Property reciprocal, non-exclusive easements for access, ingress and e~ress over all of the Cordon Areas and the individual Units or interest therein. Subject to the provi- sions of this Declaration governing use and enjoytnent thereof, such easements my be used by Declarant, its successors, pur- chasers and all Owners, their guests, tenants and invitees, transacting business on or te~lporarily visiting the Property, for walkways, vehicular access, parking, drainage and such other purposes reasonably necessary for the use and enjoyment of a parking* space in the Parking Structure. The Board of Directors of the Association shall have the right to grant necessary eas~uents and rights-of-way over the Common Areas to any Person. The Owners hereby designate and constitute the Board of Directors as their true and lawful attorney-in-fact to execute and deliver all such easements and rights-of-way. (b) Maintenance and Repair. Declarant expressly reserves for the benefit of the Board of Directors and all agents, officers and employees of the Association nonexclusive easements over the Cor~non Areas as necessary to maintain and repair the Conmon Areas and to perform all other tasks in accordance with the provisions of this Declaration. Such easements over the Coin~on Areas shall be appurtenant to and shall pass with the title to every Unit or interest therein. /here are specifically reserved for the benefit of the Owners easements and reciprocal -20- negative easements for utility services and repairs, replacement and m~iutenance of the same over all of the Con, non Areas. Such easements shall be as not to unreasonably interfere with the use and enjoyment by the Owners of adjoining Parking Spaces. (c) Utility Easements. Declarant expressly reserves easements over the Units and the Common Areas for utility services and laterals serving the individual Units as necessary in accordance with the locations of the utilities as initially installed or in accordance with alterations as approved by the Development Co,mitt ee. (d) Encroachment. Declarant, the Association and the Owners of the Units shall have reciprocal easements appurtenant to each of said Units for the purposes of (1) accomnedating any exi.sting encroachment of any wall of the building thereon, (2) maintaining the same and acccmodating authorized construction, reconstruction, repair, shifting, movenent or natural settling of the Parking Structure, or any portion thereof, and (3) main- taining drainage in accordance with the drainace pattern existing at the time of recordation of this Declaration or in acccordance with such drainage pattern as altered with the prior consent of the Development Con~ittee. Section 7.03. Rights of Entry. ~he Board of Directors and the Development Committee shall have a limited right of entry upon any Unit for the purpose of inspecting the Property, and taking whatever corrective action may be dc~-nled ~ecessary or proper, consistent with the provisions of this Declaration. However, nothing herein shall be construed to impose any obligation upon the Association, the Board, the Corr~aittee or Declarant to maintain or repair any portion of either Unit which is to be maintained or repaired by the Owner puts, rant to the terms herein. Nothing in this Article VII shall in any ~anner limit the right of any Owner to the exclusive occupancy and control over his Unit. However, an Owner shall permit access to the Owner's Unit or its Im- provements thereon by any Person authorized by the Board of Directors, the Committee or Declarant as reasonably necessary, such as in case of any emergency originating on or threatening such Unit or Improvements, whether the Owner is present or not. -21- ARTICLE VIII USE RESTRICTIONS Section 8.01. Permitted Uses. All rights to the exclusive use of either Unit in the Parking Structure shall be used for no purpose other than the parking of automobiles and/or passenger trucks. No part of the Property shall ever be used or caused to be used or allowed or authorized in any way, directly or indirectly, for any other purpose. All business operations of an Owner related to the parking of automobiles shall be performed and carried out in such a manner that the enclosed operations and uses do not cause or produce a n~isance to other portions of the Property, such as, but not limited to, vibration, sound, electromechanical disturbance and radiation, electro- magnetic disturbance, air or water pollution, dust or emission of odors, toxic or nontoxic matter. Section 8.02. Nuisances. No noxious or offensive trade or activity shall be carried on within either Unit or any part of the Property, nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to the neighborhood, or which shall in any way interfere with the quiet enjoyment of each of the Owners of his respective Unit, or which shall in any way increase the rate of insu- rance for the other Unit or interest in a Unit or any portion of the Conm~on Areas. In this regard, .all noises, sounds and vibrations shall be appropriately muffled in such a manner so as not to be objectionable as to intermittent beat, frequency, shrillness or volume. Every use shall be operated in such a manner that the ground vibration, heat and glare inherently and recurrently generated from such use is not percep- tible beyond the foundation or perimeter line of the building in which the use is located. Electrical reflectors, spotlights, flood lights and other methods of ill~llination may be used to illuminate the units and signs provided that such devices are equipped with proper lenses con- centratin~ the illunination upon such areas preventing any bright or direct illumination upon an adjacent Unit or upon any Street, whether public or private, and provided further that any such illumination shall first be approved by the Development Cormlittee. A "nuisance" shall include, without limitation, any of the following conditions: (a) Emmission of dust, sweepings, dirt or cinders into the atmosphere, or discharEes of liquid, solid wastes, or other harmful matter into any stream, river, or other body of water or an em/ssion or discharse of any other material if such ~nission or discharge may adversely affect the use or intended use of any property or may adversely affect the health, safety, or comfort of persons in the vicinity, or discharEe of waste or any sub- stance or material of any kind into any public or Association- maintained sewer serving any portion of the Property in violation of any law, rule or regulation of any public body having juris- diction thereof; (b) Escape or discharge of f~es, odors, gases, vapors, acids, or other substances into the atmosphere if such escape or discharge my be detrimental to the health, safety, or welfare of persons, may interfere with the cc~ffort of persons within the vicinity, or may be harmful to property or vegetation; (c) The perception, at any point outside the boundaries of any Unit, whether at, above or below ground level, of noise from any activity, machine, device, or combination thereof located on that Unit that unreasonably interferes with the use or enjoyment of any other Unit, except noise from motor vehicles; (d) of smoke excluding emissions Wind-borne dust, sprays, or mists and visible emissions originating within a Unit in unreasonable amounts, the exhausts emitted by ~otor vehicles, but including from the disposal of trash and waste materials; or (e) Ground vibrations inherently and recurrently generated on a Unit that are perceptible without instrt~ents at any point outside the boundaries of the p~rk~ng structure whether at, above or below ground level, including vibrations caused by automobiles and passenger trucks. Section 8.03. Signs. No sign, poster, billboard or other advertising of any kind shall be permitted on any portion of the Pro- perry, except such signs that identify the name, place and price of parking for the Unit advertised and which are of a size, design, color, style and illumination as shall be specifically approved in writing by the Development Conmittse and as are consistent with the ordinances of the City of Tustin. Section 8.04. Antennae. No television, radio or other elec- tronic antenna or device of any type shall be erected, constructed, placed or permitted to revmiu on any portion of either Unit, or Improve- ments constructed on the Units unless and until the same shall have been approved in writing by the Development Con~nittee. Section 8.05. Drainage. There shall be no interference with the established drs_inage pattern over any portion of the Property unless adequate provision is made for proper drainage and is approved by the Development Co~11ittee. For the purposes hereof, "established" drainage is defined as the drainage which exists at the time of the recordation -23- of this Declaration. Each Owner shall be responsible for the cost of making adequate provision for drainage in the event he changes the established drainage over his Unit. /here are hereby reserved for the benefit of the Association and all of the Owners, reciprocal non- exclusive easements for drainage over adjacent Units and for rr~iutenance and repair of any drainage facilities on the Property. Section 8.06. Storage and Waste. Ail rubbish, trash, garbage and other waste shall be regularly removed from each Unit and shall not be allowed to acc~nulate thereon. No refuse container shall be main- tained on the Corr~non Areas other than in the location and manner provided for by the Develo~nent Committee in accordance with its rules adopted from time to time; and no storage area, machinery or equipment shall be kept or ~aintained on any Unit so as to be visible from the Conm~on Areas of the Property. Tile Association shall be responsible for the costs of refuse storage and collection. Section 8.07. Tamporary Structures and Obstructions. No struc- ture of a temporary character, trailer, camper, boat or similar equip- ment shall be permitted to remain upon any Unit or Common Area, without the prior written approval of the Development Committee. There shall be no obstruction of any walkway or driveway in the Parking Structure 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. Section 8.08. Damage to Common Area. Each Member shall be liable to the Association for any d~,t2ge to the Common Area or to any of the equipment or improvements thereon which may be sustained by reason of negligence or willful misconduct of said Member, or his guests, invitees, employees or representatives, both minor and adult. Section 8.09. Leases. This Declaration is intended to be binding upon any lessee or tenant of any Unit or portion thereof. In order to ensure the binding effect on tenants and lessees, each Owner agrees, by acceptance of a deed by which he acquires a title to a Unit, not to rent or lease all or any portion of his Unit to any person, partnership, corporation, trust, or other entity except pursuant to a written lease or rental agreement that (a) expressly refers to this Declaration and contains a covenant by the lessee or tenant that he accepts the leasehold estate subject to this Declaration, and (b) contains either a covenant that the lessee or tenant agrees to perform and comply with the restrictions herein or adequate provisions to permit entry and other actions by the Lessor for the purpose of performing and complying with these rest. fictions. ARTICLE IX ARCHITECTURAL, DEVELOt%5~ AND LANDSCAPING PROVISIONS Section 9.01. Development Committee. A Development Committee ("Committee"), consisting of two members is hereby created with the rights and powers set forth in this Declaration. The initial members of the Committee shall be one (1) representative appointed by the Owner of Unit 1 and one (1) representative appointed by the Owner of Unit 2. .Thereafter the Board shall have the power to appoint and remove all of the members of the Coramittee. Members appointed to the Committee by the Board need not be from the Membership of the Association. No fence, wall, building, sign or other structure, exterior addition to or change or alteration (including painting) of a Unit or landscaping, shall be commenced, constructed, erected, placed, altered, maintained or per- mitted to re~rmiu on the Co~m~on Area or any portion thereof, until plans and specifications shall have been suixaitted to and approved in writing by the Co~mittee. Section 9.02. Mechanics of Operation. (a) Required Approvals. Subject to the provisions of this Declaration, no improvement shall be commenced, erected or m. lutained upon the Property, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the ~ature, kind, shape, height, materials and location of the same shall have been submitted to and ap- proved in writing by the Conm~ittee as to harmony of external design, color and location in relation to surrounding structures and topography. (6) Preparation and Submission of Plans. Ail plans and specifications shall be prepared by an architect, engineer or landscape designer or landscape architect, said person to be employed by and at the expense of the Owner making the applica- tion. The Owner shall obtain a written receipt for the plans and specifications from aa authorized agent of the Coam%ittee. Plans and resHb~uittals thereof shall be approved or disapproved within forty-five (45) days after receipt by the Committee. Failure of the Co.,~ttee to respond to a su~xnittal or resut~nittal of plans within such period shall be deemed to be disapproval of the plans as submitted or resubmitted. (c) Discretionary Powers of the Committee. The approval of the plans and specifications may be withheld not only because of noncompliance with any of the specific conditions, covenants and restrictions contained in this Declaration, but also by -25- virtue of the reasonable dissatisfaction of the Committee with any or all other ~t~ers or things which, in the reasonable judgment of the Committee, will render the proposed item of I~provement inharmonious or out of keeping with the geners_l plan of i~rove~lent of the Property. /he Co~nittee shall have the right to promulgate reasonable standards in order to insure that the prorated plans conform to and are consistent with the general plan of irmprovement of the Property. (d) Violations; Waiver. If, after such plans and specifi- cations have been approved, the inlprov~lents are altered, erec- ted~ or maintained upon the Unit other th~n as approved by the Committee, such alteration, erection and ma4utenance shall be deemed to have been undertaken without the approval of the Conmlittee having been obtained as required by this Declaration. After the expiration of one (1) year from the date of completion of any in~rovement, addition or alteration, said i~rovement, addition or alteration shall, in favor of purchasers and brancers, in good faith and for value, be dee~ to comply with all of the provisions hereof, unless a notice of such noncom- pliance, executed by at least one me,er of the Coramittee, shall appear of record in the Office of the County Recorder of Orange County, California, or legal proceedings shall have been in- stituted to enforce compliance with these provisions. Upon approval of the Con~mittee, it shall be conclusively presu~ that the location and exterior configuration o'f any building, struc- ture or other improvement, addition or alteration placed or constructed in accordance ~rith the approved plans and specifica- riots does not violate the provisions of this Declaration. approval of the Con, tree of any plans or specifications sub- mitred for approval as herein specified shall not be deemed to be a waiver by the Conm~ittee of its rights to object to any of the features or ele~nents e~died in such plans and specifications, if or when the same features or elephants are e~died in any s~bsequent plans and specifications sutz~itted, nor shall its approval be deemed approval of any plan or design from the standpoint of structural safety or conformance with building or other codes. (e) Nonliability of Co~ittee Me~bers. Neither Declarant, the Committee nor any member thereof, nor their duly authorized representatives shall be liable to any ~er for any loss, da~e or injury arising out of or in any way connected with the neg- ligent perfor~nce of the Conluittee's duties hereunder, unless due to willful misconduct or bad faith. Co~ittee members shall not be entitled to any compensation for services performed pursuant to this Declaration. -26- Section 9.03. Variance. The Co~amittee may authorize v~riances from compliance with any provisions of this Declaration, including without limitation restrictions upon height, size or placement of structures, or similar restrictions, when circumstances such as hard- ship, aesthetic or environmental considerations may require. Such variances must be evidenced in writing, must be signed by the two (2) members of the Co~nlittee and shall become effective upon recordation in the Office of the Orange County Recorder. If suc~ variances are granted, no violation of the covenants, conditions and restrictions contained in this Declaration shall be dc~-~d to have occurred with respect to the matter for which the variance was granted. The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose except as to the parti- cular property and particular provision hereof covered by the variance, nor shall it affect in any way the Owner's obligation to comply with all government.al laws and regulations affecting the use of his Unit or interest therein. ARTICLE X REPAIR AND ~AINTENANCE Section 10.01. Repair and Naintenance Duties of the Association. Following their initial installation as provided herein, the Association shall maintain, repair, replace, resurface and make necessary improve- ments to the Common Areas, or shall contract for such maintenance, repair and improvements, to assure the maintenance of the Co~n~n Areas, including without limitation all Improvements thereon, in a good, sanitary and attractive condition. Such maintenance, repairs and improvements shall include, without l~m~tation, maintenance and replace- ment of shrubs, trees, vegetation, irrigation systems, and other land- scaping improvements located on the Co~on Areas, repair and payment for all centrally metered utilities, mechanical and electrical equipment in the Core, on Areas, and repair and maintenance of all Streets, parking areas, walks and other means of ingress and e~ress within the Property. The Association shall further provide for the painting, maintenance, repairs and replace~nents as necessary of the interior surfaces of the perimeter walls, floors, ceilings and doors of the Parking Structure. All such m,i~tenance, repairs and improvements to the Common Areas and the above-described area of the l~rking Structure shall be paid for as Cormgon Expenses. To the extent not paid by the Tenants, the Association shall have the right, but not the obligation, to pay all real and personal property taxes and assessments which shall constitute a lien upon any portion of the P~rking Structure. To the extent not covered by the regular maintenance fee asses~nents, all costs and expenses for work perfoz1~ed regarding maintenance, repairs, improvements or taxes and assessments paid for and on behalf of a Owner shall be charged to such -27- Owner as a Special Assessment, which Special Assessment shall be due and payable upon the Association's delivery to an Owner of a written receipt evidencing the Association's payment of said costs, expenses, taxes and/or assessments. Said Special Assessment shall be subject to levy, enforcement and collection by the Association in .accordance with the assess~nt lien procedure provided for in this Declaration. Section 10.02. Special Powers of the Association and Cogmittes. Without in any way limiting the generality of the foregoing, in the event that the Association or Develo~qent Con, tree determines that an improvement, the maintenance of which is the responsibility of an individual O~;ner, is in need of repair, restoration or painting, or the Board deter~tnes that there is a violation of any provision of this Declaration, then the Association or Conlmittee shall give written notice to the Owner of such condition or violation. Upon such notice the Owner has thirty (30) days from the date of notice to su~t corrective plans to re~m~dy the condition con~l~ned of. ~he Association or Develolxflent Conmxittee has five (5) days from the receipt of the corrective plans to approve or disapprove them; if no indication of approval or disapproval is given, the plans are deemed to be disapproved. Upon notice that the corrective plans have been approved, an (h~ner has sixty (60) days in order to effect those plans. ~nould an Owner fail to submit and have approved corrective plans within the prescribed period, or should he fail to carry out such plans once approved, the Association or Con~littee shall undertake to re~y the condition complained of, and the cost thereof shall be charged to the Owner and his interest in a Unit, which is the subject matter of the corrective work. Such cost shall be dee~ to be a s~ial assessment to such Owner and his interest in a Unit and subject to levy enforcement and collection by the Board of Directors in accordance with the asses~nt lien procedure provided for in this Declaration. Section 10.03. Installation, Repair and Maintenance Duties of Tenants. Notwithstanding the foregoing, each Tenant shall construct, maintain, repair, finish and restore or cause to be maintained, re- paired, replaced, finished and restored, at his sole cost and expense, any improvament or structures comstructed or installed by said Tenant on its parking area in a clean, sanitary and attractive condition. Each Tenant shall further be responsible for all costs and expenses incurred in the operation of any business related to the parking of cars on its parking area. -28- ARTICLE XI C0~N AREA PROTECTION Section 11.1. Association Control. Tae Association shall have an exclusive easement over the Common Areas, in order to perform its duties hereunder, which easement shall include, without limitation, the following appurtenant rights and duties: (a) The right of the Association to reasonably limit the number of guests, patrons and invitees of Owners using the Co~non Areas. (b) The right of the Association to establish uniform rules and regulations pertaining to the use of the Conmon Areas, including, but not limited to, the right and obligation of the Assdciation to enforce all parking restrictions within the conm~n Areas as set forth in Section 11.2 below. (c) The right of the Association in accordance with the Articles, By-Laws and this Declaration, with the unanimous vote or written assent of each class of members, to borrow money for the purpose of improving the Common Areas and facilities and in aid thereof, and to mortgage, pledge, deed in trust, or hypothe- cate any or all of its real or personal property as security for money borrowed or debts incurred, provided that the rights of such ~ortgagee shall be subordinated to the rights of the Owners. (d) The right of the Association to suspend the voting rights and right to use the Common Areas by aa Owner (except the right o.f ingress and egress to and from said Owner's Unit) for any period during which aa assessment against his interest in a Unit remains unpaid and delinquent; and for a period not to exceed thirty (30) days for any single infraction of the pub- lished rules and regulations of the Association, provided that any suspension of such voting rights or right to use the Common Areas shall be made only by the Board of Directors, after Notice and aa opportunity for a Hearing as provided in the By-Laws. (e) The right of the Association to dedicate, release, alienate or transfer the Con, non Areas to any public agency, authority, utility or other Person for such purposes and subject to such conditions as may be agreed to by the Members. No such dedication, release, alienation or transfer shall be effective, unless an instrument signed by all Members entitled to cast the voting Power of each class of Members of the Association, agreeing to such dedication, release, alienation or transfer has been recorded. -29- (f) The right of the Association (by action of the Board) to reconstruct, replace or refinish any improvement or portion thereof upon the Co~11on Areas, in accordance with the original design, finish or standard of construction of such i~lprove~nt, or of the general irmprovements within the Property, as the case may be; and if not in accordance with such original design, finish or standard of construction only with the unanJ~ous vote or written consent' of the Owners. (g) The right of the Association to replace destroyed trees or other vegetation and plant trees, shrubs and ground cover upon any portion of the Conmlon Areas. Section 11.02. Reculation of Parking. Tae Association, throuch its officers, conraittees and a~ents is hereby e~gpowered to establish "parking" and "no parking!' a~eas within the Co~non Areas (Exhibit "D") in accordance with Section 9.9.58 of the California Vehicle Code, or any similar statute hereafter enacted. ~he Association is etnpowered to enforce these parking limitations, as well as the parking ordinances of the City of ~%~stin and the Vehicle Code of the State of California by all lawful means, including the removal of any violating vehicles by those so empowered. Section 11.03. Easements for Ve~icular Traffic. In addition to the general easements for use of the Conmon Areas reserved herein, there shall be, and Declarant hereby reserves and Covenants for itself and all future Owners within the Property, non-exclusive easements appurtenant for vehicular and pedestrian traffic over all private streets within the Property, subject to the provisions set forth in Section 11.09. above. Section 11.04. w~-~ements for City and County Use. In addition to the foregoing easements over the Conzgon Areas, there shall be, and Declarant hereby reserves and covenants for itself and all future Owners within the Property, easements for City and County public services and utilities and the right of the City of /Mstin to install, m~intain and repair public sanitary sewer and public water system, s, including but not limited to, the ri~jlt of the police to enter upon any part of the Coramon Areas for the purpose of enforcing the law. Section 11.05. Waiver of Use. No Owner may exempt himself from personal liability for assessments duly levied by the Association, nor release his interest in a Unit or other property owned by him from the liens and charges hereof, by waiver of the use and enjoyment of the Coramon Areas or by abandonment of his interest in a Unit or any other property in the Property. Section 1i.06. Taxes. Each Owner shall execute such instruments and take such action as may reasonably be specified by the Association -30- to obtain a separate real estate tax asses~nent of each Unit or interest therein. If any taxes or assessments may, in the opinion o£ the Asso- ciation, nevertheless be a lien on the Common Areas, or any part thereof, they my be paid by the Association and each Owner shall be obligated to pay or to reimburse the Association for, as the case may be, the taxes and asses~ents assessed by the County Assessor or other taxing autho- rity against the Con, non Areas and attributable to his own Unit or interest therein and interest in the Common Areas. Section 11.07. Municipal Exemption. If for any reason Tustin shall receive an exemption for taxes or other governmental asses.~neuts based on its status as a municipal entity, Tustin shall be entitled to a reduction in its share of the costs and expenses of the operation of the Parking Structure to the extent that said exemption reduces the overall cost and expenses of operating the entire lmarking Structure. -31- ARTICLE XlI Section 19..01. Duty to Obtain Insurance; Types. ~he Board of Directors shall obtain and continue in effect adequate blanket public liability insurance (including medical payments) in an amount not less than One Million and No/1OOths Dollars ($1,000,000.00), or in such greater reasonable amount as the Board may determine, covering all claims for personal injury and property damage arising out of a single occurrence to the Common Areas or within any Unit. ~ne Board shall also obtain, on behalf of all of the Owners, adequate blanket casualty insurance and fire insurance in such form as the Board dc~---ms appropriate in an amount as near as possible to the replacement value, without deduction for depreciation or coinsurance, of all of the structural portions of the Parking Structure and earthquake insurance in an amount equal to the full insurable va/ue of the P~rking Structure shall be maintained unless otherwise detelmlined by the Board. Such insurance shall be maintained by the Association as named insured for the benefit of the Association~ the Ow~ers, and the encumbrancers upon the respec- tive Units or any part thereof as their interests may appear, subject, however, to loss payment requirements as set forth herein. All insur- ance purchased by the Board shall waive subrogations rights by the Owners and the Owners shall be named as additional insured on all policies. Section 12.09.. Right and Duty of Owners to Insure. Each Owner shall provide fire and extended coverage insurance on his personal property and fixtures within his interest in a Unit and Improvements thereon. Each O~uer shall carry public liability insurance to cover his individual liability for damage to person or property occurring upon his interest in a Unit or elsewhere upon the Property, in any manner arising out of use of such Owner,s Unit. Such insurance shall be in an amount not less than One Million and No/lOOths Dollars ($1,000,000.00), or in such other mini~aum amount as the Board my deterraine, covering all claims for personal injury and property damage arising out of a single occurrence, or in such lesser amount as may be permitted by the Associa- tion. All such policies as may be carried by Owners shall contain waivers of subrogation of claims against Declarant, the Association, the Board of Directors of the Association, the Officers of the Association and all other Owners. Each Owner shall review annually the limits of his insurance coverage and increase such limits as appropriate. Each Owner shall carry the Association as a named insured on all policies of insurance carried by such Owner, and shall furnish the Association with a current certificate of such insurance at all times. Such policies shall not adversely affect or diminish any liability under any insurance obtained by the Association and duplicate copies of such other policies shall be deposited with the Board of Directors. If any loss intended to be covered by insurance carried by the Association shall occur and the proceeds payable thereunder shall be reduced by reason of insurance -32- carried by any Owner, such O~ner shall assign the proceeds of such insurance carried by him to the Association, to the extent of such reduction, for application by the Board of Directors to the same pur- poses as the reduced proceeds are to be applied. Tae provisions re- garding the carrying of insurance by an individual Owner shall no~ apply to the City of Tustin nor to the Tustin Co~,,n~nity Redevelo~nent Agency which are substantially self-insured. Section 12.03. Notice of Expiration Requirements. All of the policies of insurance n~intained by the Association shall contain 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 the Board of Directors, Declarant, the O~ners and every other Person in interest who shall have requested such notice of the insurer. Section 12.04. Insurance Premiums. Insurance premi~ for any such blanket insursnce coversge obtained by the Association and any other insurance deemed necessary by the Board of directors shall be a Coramon Expense and be included in the Coh~non Asses.~:nents levied by the Association and collected from the Owners. Section 19.. 08. Trustee for Policies. The Association, . acting through its board of Directors, is hereby appointed and sh~ll be deemed trustee of the interests of all named insureds under policies of insur- ance purchased and m-iutained by the Association. All insurance pro- ceeds under any such policies as provided for in Section 19..01 above shall be paid to the board of Directors as Trustees. /he Board of Directors shall have full power to receive and to receipt for the proceeds and to deal therewith as provided herein. Insurance proceeds shall be used. by the Association for the repair or replacement of the property for which the insurance was carried or other~rise disposed of as provided in Article XIII of this Declaration. The Board of Directors is hereby granted the authority to negotiate loss settlements with the appropriate insurance carriers, with participation, to the extent they desire. Any two Directors of the Association may sign a loss claim form and release form in connection with the settlement of a loss claim, and such signatures shall be binding on all the named insureds. Section 12.0~. Actions as Trustee. Except as otherwise specifi- cally provided in this Declaration, the Board of Directors, acting on behalf of the Association and all Owners, shall have the exclusive right to bind such parties in respect to all matters affecting insurance carried by the Association, the settlement of a loss claim, and the surrender, cancellation, and modification of all such insurance. Duplicate originals or certificates of all policies of fire and casualty insurance carried by the Association and of ail renewals thereof, together with proof of payment of premiums, shall be delivered by the Association to all ~ortgagees who have requested the same in writing. -33- Section 12.07. Annual' Insurance Review. The Board of Directors shall review the insurance carried by the Association at least annually, for the purpose of determining the amount of the insurance referred to in Section 12.01 above. The Board of Directors shall obtain a current appraisal of the full replacement value of the Conxnon Areas and other structural portion of the Property, without deduction for deprecia- tion, by a qualified independent insurance appraiser, prior to each such annual review. The minimum amount of such insurance shall be reviewed annually and shall be adjusted as appropriate to reflect then-current customary amounts of coverage for risks arising out of properties and uses similar to those of the parking strticture. In no event shall the amount of b],nket casualty and fire insurance carried by the Association be less than the full replacement value of the common areas slid other structural portions of the Property as such v~lue is determined by the independent insurance appraiser. Section 19..08. Required Waiver. All policies of insurance described above shall provide, if reasonably possible, for waiver of the following rights, to the extent that the respective insurers ~ould have the rights without such waivers: (a) subrogation of claims against the tenants of the Owners; (b) any defense based on co- insurance; (c) any right of set-off, counterclaim, apportionment, proration or contribution by re,son of other insurance carried by the Association; (d) any invalidity, other adverse effect or defense on account of any breach of warranty or condition caused by the Associa- tion, any Owner or any tenant or lessee of any Owner, or arising from any act, neglect, or o~lission 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 P~rking Structure is not repaired, rebuilt or replaced following loss, any right to pay under the insurance an amount less than the replacement value of the Property insured or the fair market value thereof; (f) notice of the assignment of any Owner of its interest in the insurance by virtue of a conveyance of any interest in a Unit; and (g) any right to require any assignment of any mortgage to the insurer. As to each policy of in- surance maintained by the Association which will not be voided or impaired thereby, the Association hereby waives and releases all claims against the Board, the Owners, the Ms~ager, Declarant, and the agents and employees of each of the foregoing, with respect to any loss covered by such insurance, ~/sether or not caused by negligence of or breach of any agrc~.--~e, nt by said persons, but only to the extent that insurance proceeds are received in compensation for such loss. ARTICLE XlII DAMAGE OR LOSS TO IMPROVl~D~VrS Section 13.01. Restoration of ~n Areas. Except as otherwise provided in this Declaration, in the event of any destruction of any portion of the Property, P~rking Structure or any other non-Owner improvement thereto insured by the Association, it shall be the duty of the Association to restore and repair the same to its former condition, as promptly as practical. The proceeds of any insurance maintained pursuant to Article XII hereof shall be used for such purpose, unless otherwise provided herein. ~he Board of Directors shall be authorized to have prepared the necessary doctmlents to effect such reconstruction as promptly as practical. The Parking Structure and other non-Owner inlprovements shall be reconstructed or rebuilt substantially in accor- dance with the original construction plans if they are available, with such chan~es as are recommended by the DeveloI~nent Committee. In the event that the amount available from the proceeds of such insurance policies for such restoration and repair shall be less than the esti- mated cost of restoration and repair, a Reconstruction Assessment shall be levied by the Board of Directors upon the Owners and their property in order to provide the necessary funds for such reconstruction over and above the amount of any insurance proceeds available for such purpose. Reconstruction Asses.~ents shall be borne by the Owners in the same proportions as Regular Assessments. Notwithstanding the foregoing, in the event of total destruction of the P~rking Structure, and a unanimous decision' of the Board not to rebuild, the procccds of the insurance carried by the Association shall be paid 50.00~ to the Owner(s) of Unit 1, and 50.00~ to the Owner(s) of Unit 2, the real property sold and the proceeds divided 50.00~ to the Owller(s) of Unit 1 and 50.00~ to the Owner(s) of Unit 2. Section 13.02. Restoration Obligation of Owners. In the event of damage or destruction of any portion of the Parking Structure which is not insured by the Association (hereinafter referred to as "Destroyed Property") then it shall be the duty of such Owner, as soon as may be practical, to repair and replace the Destroyed Property, or such portion thereof as will render such damage or destruction indiscernable from the exterior of the Destroyed Property. Section 13.03. Condemnation. In the event of a taking or partial taking of either Unit, including the Con,non Areas located thereon, by condamnation proceedings, the Owner of such Unit, together with his Mortgagees, shall have the right to prosecute the proceedings for the respective taking awards and to retain the proceeds thereof. -35- ARTICLE XIV DURATION AND AMENDMENT Section 14.01. Duration. This Declaration shall continue in full force for a term of ninty-nine (99) years from the date hereof, after which time the same shall be automatically extended for successive periods of ten (10) years, unless a Declaration of Termination is recorded in the Official Records, O~ange County~ California, meeting the require~uents of an amendment to this Decla~ation as set forth in Section 14.02 below. Taere shall be no severance by sale, conveyance, enc%~n- brance or hypothecation of an interest in any Unit fro~ the concomitant Membership in the Association~ as long as this Declaration shall con- tinue in full force and effect. Section 14.02. Amendment-. Notice of the subject rotter of a proposed amendment to this Declaration in reasonably detailed fora shall be included in the notice of any meeting of the Association at ~hich a proposed amendment is to be considered. A resolution adopting a pro- posed amendment may be proposed by an Owner at a meeting of Members of the Association. Tile resolution shall be Cdopted by the unanimous vote, in person or by proxy, or wl'itten consent of the voting power of the Association. A copy of each amendment shall be certified by at least two (2) office~s of the Association and the amenc~ent shall not be effective until approved by the City of Tustin and the Certificate of ~znendment is recorded in the Official Records, 0~ange County, California. -36- ARTICLE XV GENERAL PROVISIONS Section 15.01. Lecal Proceedings. Failure to comply with any of the terms of this Decla~ration, the Articles and By-Laws of the Associa- tion or reculations adopted pursuant .thereto, by an Owner, his guests, employees, invitees or tenants (except for the non-payment of any Assessments provided for herein), shall be grounds for relief which my include, without limitation% an action to recover SkmlS due for damages, injunctive relief, foreclosure of lien, or any combination thereof, which relief may be sought by Declarant, the Board of Directors, or, if appropriate~ by an a~grieved Owner. Fa/lure to enforce any provision hereof shall not constitute a waiver of the right to enforce said provision, or any other provision' hereof. ~he Association, any Owner (not at the time in default hereunder), or Declarant shall be entitled to bring ~n action for danishes a~ainst any defaulting O~ner, and in addition may enjoin any violation of this Declaration. Any judcment rendered in any action or proceeding pur~nt thereto shall include a sum for attorney's fees in such amount as the Court may deem reasonable, in favor of the prevailing party, as well as the amount of any delin- quent payment, together with interest, costs of collection and court costs. Each remedy provided for in this Declaration shall be c~mulative and not exclusive or exhaustive. Section 15.02. Severability. The provisions hereof shall be deemed independent and severable, and a determination of invalidity or partial invalidity or enforceability of any one provision or portion hereof by a court of competent jurisdiction shall not affect the vali- dity or enforceability of any other provisions hereof. Section 15.03. Interpretation. The provisions of this Declara- tion shall be liberally construed to effectuate its purpose of creating a uniform plan for the creation and operation of a parking structure and for the maintenance of Co~mon Areas, and any violation of this Declaration shall be deemed to be a nuisance. The article and section headings, titles and captions have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. As used herein, the singular shall include the plural and the masculine, feminine and neuter shall mean the ss~ne. Section 15.04. Hold Harmless and Indemnification. Each Owner shall be liable to the Association for any injury to any person or damage to the Co~mon Areas or any equipment thereon which may be sus- tained by reason of the negligence of said Owner or of his guests, employees, invitees or tenants, to the extent that any such damage shall -37- not be covered by insurance. The costs incurred by the Association as a result of such damage shall be deemed a Special Assessment to such Owner, and his Unit or interest therein, and shall be subject to levy, enforcement and collection by the Board of Directors in accordance with the asses~nent lien procedure provided for in this Declaration. Tae Association further reserves the right to charge a Special Assessment equal to the increase, if any, in the insurance premi~n directly attri- butable to the damage or injury caused by such Owner or by the use of the Unit or interest therein of such Owner. The Association shall hold each O~ner safe and harmless from liability for loss or injuries occur- ring on the Coramon Areas to the extent that such loss or injuries are covered by insurance to be maintained by the Association. Section 15.05. Mergers or Consolidations. Upon a merger or consolidation of the Association with another association, its Property, rights and obligations may, by operation of law, be transferred to anotber surviving or consolidated association or, alternatively, tbe property, rights and obligations of another association may, by opera- tion of law, be added to the Property, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association my administer the covenants, conditions and restrictions established by this Declaration governing the Property, together with the covenants and restrictions established upon any other property, as one plan. Section 15.0~. No Public Right or Dedication. Nothing contained in this Declaration shall be de~ned to be a gift or dedication of all or any part of the Property to the public, or for any public use. Section 15.07. Nonliability and Indemnification. No right or power conferred on the Board of Directors or the Develo~nent Conrnittee by virtue of this Declaration or by the Articles of Incorporation or By-Laws of the Association shall be construed as a duty, obligation or disability charged upon the Board of Directors, the Con~tittee, or upon any director or member thereof~ and except for injuries arising out of their malicious acts, no m~nber of the Board of Directors or the CoFmit- tee shall be liable to any person for his decisions or failure to act in making decisions as a ~mlber of the Board of Directors or the Corrnlittee. The Association shall p~y all expenses incurred by, and satisfy any judgment or fine rendered or levied against, any person who is or has been a director~ officer, ~l~ployee or Con~rnittee member of the Associa- tion in any action brought by a third party or by the Association against such person (whether or not the Association is joined as a party defendant) to impose a liability or penalty on such person for action undertaken while a director, officer, employee, or Corffnittee member; provided, that the Board of Directors of the Association determines in good faith that such director~ officer, employee or Con~nittee member was -38- acting in good faith within what he reasonably believed to be the scope of his employment or authority a~d for a purpose which he reasonably believed to be in the best interests of the Association or its ~{e~bers. Payments include amounts paid and expenses incurred in settling any such action or threatened action. This provision shall be construed to provide for such payments and indennification to the fullest extent permitted by the provisions of the applicable laws. Notwithstanding the foregoing, the members of the Board of Directors shall receive no compensation for their services performed pursuant to this Declaration or the By-Laws of the Association. Section 15.08. Notices. Except as otherwise provided in this declaration~ in each instance in which notice is to be given to an Owner, the same shall be in writing and may be delivered personally to the Owner, in which case personal delivery of such notice to one or more co-owners of a Unit or to any general partner of a partnership or corporatio~ or unincorporated association owning a Unit shall be deemed delivery to all co-owners or to the partnership, as the case may be. Personal delivery of such notice to any officer or a~ent for the service of process on a corporation shall be deemed delivery to the corporation. In lieu of the foregoing, such notice may be delivered by regular United States _m~_31, postage prepaid, addressed to the Owner at the most recent address furnished by such Owner to the Association or, if no such address shall have been furnished, to the street address of such Unit. Such be dee~ed delivered forty-eiEht ~(48) hours after the time of such mailing, except for notice of a meeting of Yembers or of the Board of Directors in which case the notice provisions of the By-Laws of the Association shall control. Any notice to be given to the Association may be delivered personally to any Member of the Board of Directors~ or sent by United States mail, postaEe prepaid, addressed to the Associa- tion at such address as shall be fixed from time to time and circulated to all Owners. THIS DECLARATION has been executed on the date first written above. a California limited partnership By Gfeller Development Company, a California corporation, as General Partner Inc. Douglas ~. Gfeller - President -39- STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On , 1989., before me, the under- signed, a Notary Public in and for said State, personally appeared DOUGLAS M. GFk~,r.k~,, known to me to be the President of GFk~.L~R DEVELOP- MENT O0~PANY, INC., the corporation that executed the within instrmment and known to me to be the person who executed the within instrmment on behalf of said corporation, said corporation being known to me to be oue of the partners of STEVENS SQUARE, the partnership that executed the within instrument, and acknowledged to me that such corporation executed the same as such partner and that such partnership executed the same. WITNESS my hand and official seal. -40- Real property in the City of Tustin, County of Orange, State of California, being a portion of Block 17 and 5th Street (abandoned) as shown on a map filed in Book 4, pages 218 and 219 of Miscellaneous Records of Los Angeles County, described as follows: Parcel 1: The south 50.00 feet of Lots 7, 8 and in said Block 17, described as follows: Beginning at the Northwest corner of said Lot 9; thence East 137.09 feet to the Northwest corner of the land conveyed to Chas. S. Kelly by deed recorded January 20, 1912 in Book 206, Page 8 of Deeds, Records of Orange County, California; thence South along the West line of said land, 150.00 feet to the Southwest corner thereof; thence West 136.93 feet to the Southwest corner of said -Lot 9; thence North 150.00 feet to the point of beginning. .Parcel 2: Lots 10, 1i and 12 in said Block 17. · arcel That portion of 5th Street described as follows: Beginning. at a point in the East line of "C" Street, as shown on said Map, 300.00 feet South of the N~rthwest corner of Block 17 of said Tustin City; thence East 150.00 feet to the West line of the land conve~ed to N.F. Ritchey by deed recorded May 5, 1904 in Book 105, page 202 of Deeds, reocrds of Orange County, Califor- nia; thence along said West line and along the West line of the land donveyed to Arthur F. Ritchey recorded May 5, 1904 in Book 105, page 203 of said deeds, south 66.00 feet to the North line' of Block 24 of said Tustin City; thence along said North line, West 150.00 feet to said East line of "C" Street; thence along said East.line, North 66.00'feet to the point of beginning. EXHIBIT "A" The balance of Exhibit "A" to this Agreement (i.e., Parking Structure description) is contained in a document entitled "A Proposed Parking Structure For The Stevens Square PrOject'' filed with the City of Tustin on February 1, 1982; which document has been r~viewed by both parties hereto and is incorporated herein by this reference. EXHIBIT "A" ARTICLES OF INCORPORATION OF STEVENS SQUARE PARKING STRUCTURE CONDQMINIUM ASSOCIATION ARTICLE I NAME Toe oame of tbis corporztion'is STEVENS SQUARE PARKINO STRUC,- ~e p~ses for ~ich this ~s~iation is fo~d ~e: tion org~ ~der the Nonprofit Mural ~uefit ~r~ratioa ~w. ~e p~se 9f this cor~r~tiou is to en~e. ~ ~y la~ ~t or xc=i~ty for ~ a co,ration my be org~i~ ~der su~ law. (b) No~thst~d~g ~Y of the ~ve st~ts of p~e mud powers, the Association shall not, except to mn insubstantizl degr~, eagle in ~y ~ti~ti~ or exercise ~y ~ers that ~e not f~%her~ce of the pr~ p~s~ of the ~R S~VI~ OF ~e ~ty ~ t~s ~zte ~ere the principal office for the tr~sgc=ion of the b~iness of the ~sociztion is l~t~ is the of ~ge. ~e ~socigtion's initial ~en~ for service of process is EXHIBIT "B" Thomas H. Baldikoski, California 92880. 270 Newport Center Drive, Newport Beach, ARTICLE IV Amendment of these Articles shall require the unanimous vote or. w~it~en assent of the governing bod~ of the Association. ..IN WITNESS WHEREOF, the undersigned, constituting the incor- .porator of this Association have executed these Articles of Incorpora- tion on Jsm,,~ry , 1982. Bruce H. Cantles STATE OF CALIFORNIA ) ) ss. COUNT OF ) , I982, before me, the undersigned, a Notary Public in and for said S~ate, Personally appeared BRUCE H. CHAB~.wM, known to me to be the PerSOn whose named is subscribed to the within instrument and acknowledged that he exeCuted the same. WITNESS my hand and official seal. Signature -2- BYLAWS OF STEVENS SQUARE PAP~ING STRU~ ' CONDO~INID%{ ASSOCIATION EXHIBIT "C" Article $ 4 6 TABLE OF CONTEN/~ Title LCCATION ................. . .... DEFINITIONS ................... ~TING OF ~{/5~BERS AND VOTING RIGHTS ...... 3.1 Annu~/ Meetings ............. Special Mee~tngs .............. 3.3 Notice and Location of Needings ...... 3.4 quor~ . 3.6 Ad journme~l: ..... 3.8 Classes of M~mbership .......... BOARD OF DIRECIORS; Iv.WC'TION; TER~ OF OFFICE . . 4.1 Number and Term of Directors ....... 4.2 Election of Board of Directors *. ..... 4.4 Vacancies ................. ~INGS ,OF DIRECTORS ............. 5.1 Regular' Meetings ............. 5~'2 Special Meetings ............. 5.3 Action Witbou~ ~ ~ee~ing ......... 5.4 ~aiver of Notice ............. 5.5 ~uorum ................... 5.6 AdJourn~gent; Executive Session ...... 5.7 Board Meetings Ope~ to Members ...... POWERS AND DQTIES OF THE BOARD OF DIRECIORS . . . 6. I Powers and Duties ............ 6.2 Limitation on Board's Power ........ OFFICERS AND DUTIES .............. ?. 1 Eoune~mtion ~nd TeTM .......... ?.2 Election of Officers ........... 3 '3 3 3 -i- Article Title TABLE OF ODNTENTS 8 9 10 i1 12 7.3 7.4 7.5 Nultiple Offices ............. Duties . . . (b) Vice-President ............ (c) Secretary .............. (d) Chief Financial Officer ........ (e) Signing Authority ........... DISCIPLINE OF MS~BERS; SUSPENSION OF RIGHTS . . . BUDGET, FINANCIAL STATEMENTS, BOOKS AND RECORDS 10.1 Budget and Fin~ncial Statements ..... 10.2 Fiscal Year ............... 10.3 InspectiOn of Association's Books and Records ................. AMENEMENT OF BYLAWS .... : .......... MISC~ I ANEOUS PROVISIONS ............ 12.1 Regulations ............... 12.2 Compensation and Indemnity of Officers and Directors . .' .............. 12.3 Com~ttees 12.5 Notices .................. .9 ~ 10 10 10 11 11 11 11 11 11 -ii- jo' BYLAWS OF STEVENS. ~UARE PARKING STRUCTURE CONDO~INIU~: ASSOCIATION ARTICLE I LOCATION · ' The principal office of the S~eveas Sq,,-,e Parking Structure Condominium Association, a ~Lfornia nonprofit mut,,~ benefit corpora- tion, bereins.fter "Association" is located at , Tustin, .County of Orange, California. ARTICLE 2 DEFINITIONS 2.1 "Declaration" shall mean the Declaration of Covenants, Conditions and Restrictions for Stevens Square Parking Structure Condo- miniumAssociation,'applicable to the property recorded on ~. , 198__, as Document No. , in Book , ~ages through , inclusive, in the Official Records of the County R~corder for Orange County, California. 2.2 The definitions contained'in the above Declara=ion are incorporate~.hereinb¥ reference a s though set ou~ in full. 2.3 Tae n~,me, of the corporation shall be Stevens Sq,,-~e Parking Structure Condominium Association (hereinafter referred to as the "Association"). These By-Laws shall be known and designated as the "By-La~ of Stevens Square. Parking Structure Condominium Association" and shall constitute the By-Laws referred to in said Declaration. 2.4 "Declarant" shall denote the Stevens S~,~e Condominium Association. ARTICLE 3 ~EETING OF MEMBERS AND VOTING RIGHT~ 3.1 Annual M~etings. RegUlar annual meetings of members of ~he- Association shall be held no less than once each calendar year at the · principal office of the Association, or at such o~her suitable place convenient ~o the members as may be designated by the Board. The first meeting of ~he Association shall be held wi:bin foray-five (45) days · fter ~he recordation of the Declaration. 3.2 Special Meetings. A special meeting of Nembers of the Association shall be promptly cs/led bM the Board upon the vote for such a meeting by vote of a~y three Directors, or upon receipt of a written request therefor signed by.Members representing at least fifty percent (5(~) of the total voting power of the Association.' 3.3 Notice and Location of Meetings. Written notice of regular and special m~ctings shall be given by the Board by mailing a notice to each Member which shall specify the place, day, and hour of the meeting, and, in the case of a special meeting, the nature of the business to be undertaken. Notice shall be given not less than ten (10) but not more th~- ninety (90) days before the date. of any m~cting at which Members ar.e required or permitted to take any action. Meetings of the Associa- tion shall be held at the principal office of the Association or at a meeting place as close thereto as possible. 3.4' Quorum. The presence in person or by proxy of a majority of the voting power Of the Association shall constitute a 3.$ Proxies. At S/1 meetings of Members, each Member may vote in person or by proxy. All proxies shall be in writing and filed with the appropriate officer of the As~ociation before the appointe~'ti~e' of each meeting. Every proxy shall be revocable and shall autom~tically cease upon conveyance' by the Member of his lot or receipt of notice by the appropriate officer of the Associatio~ or the Board of Directors. 3'.8 Adjournment. In the absence of a quorum at a Members' meeting, a majority of those present in person or hy proxy may adjourn the meeting to another time, but m~y not transact any other business. An adjournment for l, ck of a quorum shall be to a date not les~ than five (5) days. and not more than thirty (30) days from the original meeting date. The quor~m~ for such an adjourned meeting sh~ll be fifty percent ($0~) of the total voting power of the Association. If a time and place for the adjourned meeting or if for any reason a new date is fixed for the adjourned meeting after adjournment, notice of the time and place of the adjourned meeting sba/1 be given to Members in the manner prescribed for regular meetings. 3.7 Action Without Meeting. Any action which may be taken by the vote of Members at a regular or special meeting, except the election of the Board of Directors where cumulative voting is a requirement, may be taken without a mccting if done in compliance with the provisions of Section 7513 of. the Corporations Code~ 3.8 Classes of'Membership. '/be Association shall have one (1) class of voting membership established according to the D~=cI&ratio~. -2- Ai~TIc~E 4 BOARD OF DIRECTORS; ~.FL-TION; TERM OF OFFICE 4.1 Number and Term of Directors. The Bo.amd shall consist of four (4) Directors, each of whom shall be au .O~.=er, or au agent of an Owner. Each Director shall serve a t~o-¥ear term. 4.2 Election of Board of DirectOrs. The Owner(s) of each Unit may nominate candidates for election to the Board. Elections of Direc- tors shall be by secret written ballot. Ail elections shall be con- ducked by cumulative voting subject only to the procedural prerequisite~ to' cumulative voting described in Section 7615(b) of the Corporations Code. 4.3" Ramoval. Unless the entire Board is removed from office by the vote of Association Members, au individ,,-1 Director shall not be 'removed prior to the expiration of his term of office if the number of votes cast against his r~mov~l would be sufficient to elect the indivi- dual Director if voted cumulatively at an election at which the .~me total number, of votes were cast and the entire number of Directors authorized by these Bylaws at the time of the most recent election Of 'the isdivid,,-~ Director were then being elected. Vacancies on th~ Board caused by removal of a Director shall be filled by vote of the Members as hereinahove described and the Director so elected shall serve out the re~tnder of the r~moved Director's term. 414 Vacancies'. Vacancies on the Board c~nsed by reason other than the removal of a Director may be filled by vote of the majority of the remaining .Birectors, whether or not less than a quorum, or by a sole retaining Director, if only one re~us. Each person so elected shall be a Director for the remainder of the term of the Director so replaced. In the event vacancies on the Board are not filled by the r~r~uing Directors within sixty (60) days after the vacancy occurs, the members shall elect a Director pursuant to the provisions hereinabove set o%It. MEETINGS OF DIRECTORS 5.1 Regular Meetings. Regular mcctings of the Board shall be conducted at least one (1) time per year at a time and place as may be fixed by the Board. Notice of the time smd place of the regular mccting shall be given %o each 'Director, personally or by mail, telephone or telegraph, not less than four (4) days prior to the day named for the ~eeting, and shall also be posted at a prominent place or places within the Common Area. -3- 5.2 Special Meetings. A special meeting of the Board m~y be called by written notice signed by the President of the Associatioa or by three Directors. Notice shall be sent to all Directors not less than seventy-two (72) hours prior to the scheduled time of the meeting smd posted in the Common Area in the m~n~e~ prescribed for notice of regular meetings, and shall include a description of the nature of any special business to be considered by the Board. 5.3 Action Without a Meeting. The Board may take actions without a mccting ii all of the Directors consent in writing to the action to be taken. If the Board resolves by unanimous written consent to take action, a written explacation of the action to be taken shall be delivered to ~11 ~embers of the Association at their last known a~dress within seven (?) days afte= the written consent of all Directors have been obtaided. 5.4' Waiver of Notice. Before or at any regular or special meeting of the Board, any Director may, in writing, waive notice of such meeting or give written consent to the holding of such meeting, and such w~iver or written consect shall be deemed equ/valent to the giving of such notice to that Director. Attendance by a Director at any meeting of the Board shall be'a ws.iver of notice by him of the time and place of the meeting. 5.5 Quorum. The presence in per,on of three Directors at any meeting.of the Board shall constitute a .quorum. 5.6 Adjournment; Executive Session. The Board may, with the approval of a'maJority of the Directors, ~djourn a meeting and reconvene in executive session to discuss and vote upon personnel matters, litiga- tion in which, the Association is or my become involved, and order of business of a similar nature. The nature of any and all business to be considered in executive session shall first be announced in open session. 5.7 Board Meetings Open to Members. Regular and special meet- ings of.' :he Board shall be' open to all Members of the Association; provided, however, that Association Me~oers who are not on the Board may no: particip&te in any deliberation or discussion unless expressly so authorized by the vote of a majority of a quoru~ of the Board. ARTICLE ~OWERS AND DUTIES OF THE BOARD OF DIRECTORS 8.1 P~wers and Duties. /he Board shall have the powers an~ duties necessary for the administration of the affairs of the Associa- tion. ~ithout limitation OQ the generality of the foregoing powers ~nd duties, the Board shall be vested ~ith, and responsibility for, ~he following powers and duties: -4- (a) To elect, appoint, supervise, and remove all officers, agents, and employees of the Association; to prescribe such powers and duties for them as may be consistent with law, and with the Articles, the Declaration of these BYlaws; and to fix their .compensation, if no~ prohibited under these Bylaws, and to require, from them security for faithful service when d~--~u~d advisable by the Board; (b) To fill vacancies on the Board of Directors except for a vacancy created by the removal of a Member of the Board which shall be filled as hereinabove provided; (c) To enforce the applicable provisions of the Declara- Articles, and these BYlaws; (d) To adopt and publish rules and regulations govern/rig ~he use of' the Cormnon Area smd facilities, and the personal conduct of the Members and their guests thereon, and to establish procedures and penalties for the infraction thereof, subject to approval of the member- ship, and not in derogation of any appropriate statute or governmental guidelines; (e) To ~ay all taxes and _,~essments which are, or could become~ a lien on the Co~n Area or a portion thereof; " (f) To contract for casualty, liability smd other insurance on behalf Of the Association as provided in the Declaration; (g) To cause the Common Area to be maintained and to contract for goods and/or services for the Common Area or for the Association, subject to the l~m~tations set forth ia this Article; (h) To delegate its powers ~o committees, officers or employees of the Association, or.to a m-n%gement company purs-~nt to a written contract, as expressly authorized by the Articles, E~claratiou and theseBYlaws; (i) To prepare budgets and financial statements for ~he Association as prescribed in these BYlaws; (j) To initiate and execute disciplinary proceedings against Members of the Association for violations of the provisions of the Articles, Declaration, these Bylaws and such rules as may be promulgated by the Board, in accordance with procedures set forth in these Bylaws, and not-in delegation of any appropriate statute or governmental guidelines~ (k) To enter upon any privately o~med Unit as necessary in -S- connection with construction, maintenance or emergency repair for the benefit of the Common Area or the Owners. (1) To borrow money and incur indebtedness for purposes of the Association, and to cause to be executed and delivered therefor, in the Association's name, promissory notes, bonds, debentures, of trust, mortgages, pledges, hypothecations or other evidence of debt and securities therefor; (m) To fix and collect regular and special assessments according to the Declaration and these Bylaws, and, if necessary, to record a notice of assessment and foreclose the lien against any Unit or interest therein for which an assessment is not paid within thirty (30) days s.fter the due date, or bring an action at law against the Owner personally obligated to..pay such --~ssmment. Ail reserves for capital expansion,, repair and maintenance shall be transferred to and held ia a trust fund or funds for such purpose established by vote of a majority of Members, and shall be expended only in the trust manner prescribed. (n) To cause to be kept adequate and correct hooks and records of account,, mt-utes of proceedings of its Members, Board and cc~ttees, and a record of its Members, giving their nsme$ and. ad- dresses and the class Of membership. Minutes shall be kept in written form. Other books an~d records shall be kept either in written form or in any other form capable of being converted into written form. 8.2 Limitation on Board's Power. Except with the vote or written assent of two-thirds of the voting power of the Association residing in' the Members, the Board shall be prohibited from taking any of the following actions: (a') Incurring aggregate expenditures for capital improve- ments to the Common Area in any fiscal year in excess of five percent (5~) of the budgeted gross expenses of the Association for that fiscal year. (b) Selling during any fiscal year property of the Associa- tion baying an aggregate fair market va/ue greater than five percent (5~) of the budgeted gross expenses of the Association for that fiscal year o (c) Paying compensation to Directors or to Officers of the Association .for services performed in the conduct of the Association's business; provided,, however, that the Board may cause a Director" or. Officer to be reimbursed for expenses incurred in carrying on"~he. business of the Association. -8- (d) Entering into a contract with a third person wherein the third person will furnish goods or services for the Common Area or the Association for a term longer than one (1) year with the following exceptions: (i) A contract with a puhlic utility company if the rates charged for the materials or services are regulated by the Public Utilities Commission; provided, however, that the term of the contract shall mot exceed the shortest term for which the supplier will contract at the regulated rate; · (ii) Prepaid casuaIty ~nd/or liability insurance ~olicies of not to exceed three ($) years duration provided that the policy permits for short rate cancellation by ~he insured; : Any agreemen~ for professional m~-~gemen~ of the Project, or any other contract providing for services by Declarant, shall provide for termination by either party without cause and without payment of a ~ermination fee on thirty (30) days or less written notice and shall provide for amax i mum contract terra of one (1) year. ARTICLE ? OFFICE~S AND DUTIES 7.1' Enumeration and Term. The officers of this Association shall be a president and vice-president, who shall a~ all times be members of the Board of Directors, a secretary, and a chief financial officer, and ~,-ch other officers as the Board m~y from time to t~me by resolution c. reate. The officers shall be elected annually by the Board and each shall hold office for one (1) year unless he shall sooner resign, or shall be removed, or otherwise disqualified to serve. 7.2' Election of Office~s. Tae election of officers shall take place at the first m~cting of ~he Board of Directors following each annual meeting of the M~mbers. 7.3 Vacancies. A vacancy in any office may be filled by ap- pointment by the Board except where such vacancy is caused by a removal of a Director. The officer appointed to such vacancy shall serve for the remainder of the term of the officer he replaces. 7.4 Multiple Offices. The offices of secretary and chief financial officer may be held by the same person. No person shall simultaneously hold more than one of any of the other offices except.~in . the case of special offices created pursuant to this Article. 7.$ Duties. The duties of ~he officers are ~s follo~: -?- (a) President. The President shall preside at all meetings of the Board of Directors; shall see that orders and resolutions of the Board are carried out; shall sign all leases, mortgages, deeds and other written instruments and shall co-sign all checks, unless the authority to sign checks in the ordinary course of Association business has been delegated to a r~nagement company as provided in these Bylaws, and promissory notes. (b) Vice-President. The Vice-President shall act in the place and stead of the President in the event of his absence, inability or refusal to act, and shall exercise and discharge such other duties as may' be required of him by the Board. (c) Secretary. Tae Secretary shall perform or cause to be performed' the following duties: record the votes and keep the minutes of all meetings and proceedings of the Board and of the Members; serve notice of' meetings of the Board and of the Members; keep appropriate current records showing the Members of the Association together with their addresses, and shall perform such other duties as required by the Board. · (d) Chief Fin-ncial Officer. The Chief Financial Offider shall receive and deposit, in appropriate bank accounts all monies of the Association and shall' disburse such funds as directed by resolution of the Board of Directors; shall co-sign all checks and promissory notes of the Association; and shall keep proper books of account and prepare or have prepared financial statements as required in these BFlaws. The duty of the Chief Financial Officer to receive and deposit funds and to sign checks in the ordinary course of Association business may be delegated to. a management company as provided in these Bylaws. (~) Signing Authority. No~withstanding anything to the contrary set forth herein, only the President and the Secretary together shall be permitted to sign checks, contacts, and other documents for and on behalf of the Association; provided, however, ~he Association my delegate .such signing authority to a m~=agament company as provided in these Bylaws. ARTICLE Pursuant to the procedures and guidelines set forth in the Declaration, the Board 'shall levy,~Collect and enforce regular and special assessments for' the operation of the Association, and for the management, maintenance, and operation of the Common Area. Tae assess- ments shall be used exclusively to promote the recreation, health, -8- safety, and welfare o~ all residents in ~he entire ~roject and for the i~p~ov~nent and ~en~ce o~ ~he ~n ~he ~oJ~. ~ar ~n~s shall ~clude for m~u~en~ce, rep~rs ~d repl~m~n~ of the ~n ~. ARTICLE 9 DISCIPLINE OF HEHBERS; SUSP~2{SION OF RIGHTS The Association shall have no power to cause a forfeiture or abridgement of an Owner's right to the full use and enjoyment of his iq.~erest in a Unit on account of a .failure by the Owner to comply with provisions of the Declaration, Articles, these Bylaws, or of duly enacted rules of operation for the Co~mon Area smd facilities, except where the loss or forfeiture is the re, alt of the judgment of a court or a decision' arising out of arbitration or on account of a foreclosure or sale under a power of sale for failure of the Owner to pay assessments levied by the Association. Not~thst~nding the foregoing the Board shall have the power to impose reasonable monetary penalties, temporary suspensions of reasonable duration of aa Owner's rights as a Member of ~he Association or other appropriate discipline for failure to co~ly with the Declaration, Articles, these Bylawe or duly enacted., rules; case in which monetary pens_lties are to be imposed, such penalties 'shall include ac~,,-1 attorneys'' fees and a/1 costs in connection with the collection of such penalties. ARTICLE 10 BODGETS, FINANCIAL STA~, BOOES AND REOORDS 10.1 ~udget and Financial Statements. Financial statements for the Association shall be regularly prepared and copies shall be distri- buted to each Member of the AssOCiation regardless of the number of Members or the amount of assets in the Association as follows: (a) A pro forma operation statement, or budget, for each fiscal year shall be distributed no: less ~has sixty (60) days before =he beginning of the fiscal year. (b) An annual report consisting of the following shall be distributed within one hundred ~wenty (120) days aiter the close of the fiscal year as defined below: (i) ciation's fiscal year; fiscal year; A balance sheet as of the last day of the Asso- ~' (ii) An operating, or income, statement for said -9- (iii) A statement of changes in financial ~osition .for said fiscal year; and (iv) Any. information required to he reported ~uder Section $32~ of the Corporations Code. For any fis6al year in which the gross income to the Association exceeds Seventy-Five Thousand Dollars ($75,000.00). (c) The annual report referred to above shall be prepared by an independent accountant, it shall he accomDsmied by the certificate of an authorized officer of the Association that the statements were prepared without an audit from the books and records of the Association. 10.2 Fiscal Year. The fiscal year of the Association shall he · 'as designated by resolution of the Board. In the absence of such a resolution, the fiscal year shall run from July i to June 30 each year. 10.3. Inspection of Associatioa's Books and Records. The membership re§ister, including names, addresses and voting rights, books of account and minutes of meetings of the Members, of the Board,.and of committees shall he made available for inspection a~d cop~ing bF any Member of the Associationi or by his duly appointed representative, at any reasonable time and for a purpose reasonably related to his interemt as a Member at the O~fice of the Association or at ~uch other place within the project as the Board of Directors shall premcribe. The Board shall establish reasonable rules with respect to: (a)' Notice to be given to the custodian of the records by the Member desiring to .~ke the inspection; be made; (~) Hours and days of the week when such as inspection may (c) Payment of the cost of reproducing copies of documents requested .by a Member. Every Director shall have the absolute right at any reasonable time to inspect all books, records and documents of the Associatio~ and the physical properties owned or controlled by the Association. The right of inspection by a Director includes the right to make extracts and copies of documents. AP~ND~{KNT OF BYLAWS These Bylaws shall be amended only by the vote or written amsent 'of two-thirds of the Members. -10- PROVISIONS 12.1 Regulations. All Owners, tenants, or. their a,ployees, or any other per,on that might use the facilities of the Project in any manner, are subject to the regulations set forth in these Bylaws and in the Project Documents and to all reasonable rules enacted purmmnt tO the Declaration. Acquisition, rental, or occupancy of any Unit $ball constitute acceptance and ratification of the provisions of all such rules and regulations. 12.2 Compensation and Indemnity of Officers and Directors. No Director or officer shall receive any compensation for services rendered for or on behalf of the Association, except reimbursement according'to the provisions of these Bylav~. To the maximum extent permitted by the California Corporations Code, each Director and officer shall be indemnified by the Association against all expenses and liabi- lities, including attorneys' fees, reasonably incurred by or imposed upon him by jud§ment or settlement in connection with any proceeding to which he may 'be a party, or in which he may become involved, by reason of his. being or having been a Director or officer of the Association, except in cases of fraud, gross negligence or bad faith of the'Director or officer in the performance of his duties. 12.3' Committees. ~he Board may appoint a Nominating Committee, as provided i~ these Bylaws. Im addition, the Board of Directors shall appoin~ o~her conmttt~ as deemed appropriate in carrying out i~s purposes. 19..4 Resignation of Officers or Directors. Any officer or Director my resign effective upon giving written notice to the Board, or any other officer prescribed in these Bylaws unless the notice specifies a later time at which such resignation will become effective. If the resignation is effective at a future time, a successor m~y be selected, pursuant to these Bylaws, to take office when the resignation becomes effective. Unless Otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 12.5 Notices. Any notice permitted or required to be given by the Project Documents may be delivered either personally or by mail or as otherwise specifically provided in the Project Documents. If delivery is by mail, .it shall be deemed to have been given seven~y-two (72) hours af.ter a copy of the same has been deposited in the United States mail, postage prepaid, return receipt requested, addressed to each person at the current address given by such person to the Secretary of the Association or addressed to the offices of this Association if no address has been given to the Secretary; provided, however, that notice of regular or special meetings of Members may he mailed without request for a return receipt. -11- ADOPTION OF BYLAWS ~.e, the undersigned, being al~ of the Direct6rs of Stevens Square Parking Structure Owners Association, do hereby certify: That we are entitled to exercise all of the voting power of said Stevens Sq,,~e Parking Structure Owners Association; That we hereby assent to the within and foregoing Bylaws and hereby adopt the same as the Bylaws. of said Stevens Sq,,~-e P~rking Structure Owners Association. Executed by the undersigned on I, ~he undersigned, the duly elected and acting Secretary of Stevens Sql,~re Parking Structure Owners Association, do hereby certify: That the within and foregoing Bylaws were adopted as the Bylaws of said Association on , 198 , and that the same do now constitute the Byla~ of said Association. Executed by the undersigned on ., 1982. -12- STATE OF CALIFORNIA ) COUR~Y OF ORANGE ) On this day of , 19 , before me, a Notary Public, for the State oi (klifornia, duly co~mis- sioned and sworn, personally appeared , , and , know~ to ~ to be the ~rso~s ~ose n~ ~e s~scrib~ ~o the ~t~in ~la~ a~d ~owl~ed ~o ~ t~ ~hey ex~u~ ~he s~. IN WITNESS W~P~OF, I have hereunto set my hand and ~ffixed my official s.eal the day and year first above written. Notary Public in and for said County and State -13- The common area includes all property real and personal, described in Exhibit "A" to this Agreement, except that portion of the Parking Structure designated as parking spaces on Pages A-1 and A-2 of a document entitled "A Proposed Parking Structure For The Stevens Square Project" filed with the City of Tustin on 'February 1, 1982; which document has been reviewed by both parties hereto and is incorporated herein by this reference. EXHIBIT "D" The description of the Units of the P~rkin§ Structure is con- tained in a document entitled "A P~opose~ P~rking S~ruc~ure For /he Stevens Square Project" filed with the City of Tustin on February 1, 1982; which document has been reviewed by both parties hereto and is incorporated herein by this reference. Each of the Units as separately described below consists of the Space bounded by and contained within the interior unfinished surfaces of the ~erimeter walls, floors and ceilinss of each Unit. Each Unit includes the airspace so encompassed and does ~o~ include those areas and those thinEs which are defined as Con, on Areas herein. Unit I includes the ~irsDace as described above within the parkin$ spaces on the. upper level of the Parking Structure as depicted on P~ge A-2 of the above-referenced doc%~ent, except for the twenty-five (25) parking spaces closest to the Plaz~ located on the area formerly known as "C' Street. Unit 2 includes the airspace as described above within the .Darkin$ spaces depicted on Page A-1 of the above-referenced doc~nent amd the airspace within the twenty-five (9_5) parking spaces closest to the Plaza located on the area formerly knowa as "C' Street as depicted ou image A-2 of said docunent. EXHIBIT Recording Reques ] By and When Recorded ~ail to: ROURKE & WOODRUFF 1055 North Main Street #1020 Santa Aha, California 92701 ~IALL AND PLAZA AGREEMENT A. Parties. This Agreement is entered into as of this day of February, 1982, by 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 located within the City of Tustin, to-wit, a California Community Redevelopment Agency (hereinafter "AGENCY"). B. Recitals. Whereas, STEVENS owns and is developing an office condominium project and intends to construct a parking structure fronting on "C" Street, near Main. Street in the City of Tustin; and Whereas, the City Council of CITY has adopted Resolution No. 82-12, vacating certain rights in a portion of "C" Street as described in said resolution, a copy of which is attached hereto marked Exhibit "A" and incorporated herein by this reference as though set forth in full hereat; and Whereas, CITY has excepted from said street vacation ease- ments for pedestrian, vehicular traffic, and other purposes over the mall and plaza as described in said Exhibit "A" and has re- ceived grants of easements, copies of which are attached hereto marked respectively as Exhibits "B" and "C" and incorporated herein by this reference as though set forth in full hereat; and Whereas, the purpose of this Agreement is to provide for the construction, use and maintenance of that said portion of "C" Street vacated pursuant to Resolution No. 82-12 of the City Council of CITY together with those portions of real property described in said Exhibits B and C, all of those said portions of real property described in Exhibit A, B and C collectively described hereinafter as the "Premises"; and Whereas, a plat of the mall and plaza as proposed to be developed is attached hereto marked Exhibit "D" and incorporated herein by this reference; and Whereas, the parties hereto now desire to provide for the development, use and maintenance of th Premises. 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 the "Premises"' is described in said Exhibits A, B and C, attached hereto and incorporated herein by this reference. ARTICLE 2 IMPROVEMENTS 2.1 Construction. STEVENS, at its sole cost and expense, by itself or by any contractor(s) selected by STEVENS to perform the construction work required of STEVENS pursuant to this Agreement (hereinafter collectively referred to in this -2- Article 2 as "STEVENS"), shall within (30) days after execution of this Agreement commence construction of improvements on the Premises in conformance with the plans and specifications filed with the City of Tustin on February 1, 1982, an~ 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 six (6) months after commencement of construction, provided that the time for completion may be extended for as long as STEVENS is prevented from completing construction by delays beyond STEVENS' control. All work shall be performed in a good and workmanlike manner, shal3 substantially comply with said plans and specifications ~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, contractor'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' 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 (or any comparable statute hereafter enacted for -3- 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 protecting 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 Notice of Completion. 2.5 Changes in Plans. On completion of any work of improve- ment, STEVENS shall give CITY and AGENCY notice of all changes in --4-- 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. 2.6 Payment by Agency. 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 as follows: $25,000 upon completion of 50% of construction $20,000 upon completion of construction $ 5,000 thirty (30) days after completion of construction and filing of a Notice of Completion. STEVENS shall pay for all other expenses and costs of construction and all other expenses and 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' sole cost and expense, all required insurance. Except as provided herein, 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: Workers Com- pensation Insurance, and Comprehensive General Liability 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 -5- 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' responsibility for payment of damages resulting from his operations under this Agreement. 2.7.02 WORKERS COMPENSATION INSURANCE: Before commence- ment of work, STEVENS shall submit written evidence that it and all contractors and subcontractors involved in the subject constru- ction have obtained, for the period of construction, full Workers 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 Workers Compensation Insurance Laws. 2.7.03 COMPREHENSIVE GENERAL LIABILITY INSURANCE: Before commencement of the work, STEVENS shall submit written evidence that it and/or all contractors have obtained for the period of construc- tion, 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 and AGENCY. -6- a. The 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 five hundred thousand dollars ($500,000) 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. The Property Damage portion will provide for a limit of not less than two hundred thousand dollars ($200,000) for all damages arisinq 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 ~ccurrence including explosion, collapse and underground exposure. c. Indemnity: Included in such insurance shall be contractual coverage sufficiently broad to insure the provisions of Paragraph 2.7.04. 2.7.0'4 INDEMNITY: STEVENS shall hold harmless, indem- nify and defend the CITY, AGENCY and 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 active negligence of CITY, AGENCY, 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 --7-- with the owner of the patent or a duly authorized licensee of such owner, and shall save harmless the CITY and AGENCY from any and all loss or expense on account thereof, including its use by CITY and AGENCY. 2.7.06 PE~ITS: All permits and licenses necessary for prosecution of the work shall be secured and paid for by STEVENS or its authorized agents or representatives'. 2.7.07 LAWS TO BE OBSERVED: STEVENS shall cause to be given all notices and comply with all Federal, State 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 and AGENCY 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 WARblING SIGNS AND BARRICADES: STEVENS shall pro- vide adequate signs, barricades, red lights and watchmen and take all necessary precautions for the protection of the work and the safety of the public. All barricades and obstructions shall be protected 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 CO~VENIENCE: 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. Fire hydrants on or adjacent to the work shall be kept accessible to fire- fighting equipment at all 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 Repair and Maintenance Duties of STEVENS. STEVE~;S at its sole cost and expense shall maintain, repair, replace and resurface the Premises and all improvements therein or thereon -9- as required to keep the Premises in a good, sanitary, attractive and safe condition and in conformance with the said plans and speci- fications. Such maintenance and repairs shall include, without limitation, sweeping, cleaning, repair and maintenance of all streets, parking areas, walks and other means of ingress and egress within the Premises and providing water, electricity, lighting and gardening. ARTICLE 4 INSURANCE AFTER CONSTRUCTION 4.1 Duty to Obtain Insurance; Types. STEVENS, at its sole cost and expense, shall obtain 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 on th~ Premises. CITY and AGENCY shall be designated as additional named insureds on said policy. STEVENS, at its sole cost and expense, shall also obtain and'.con- tinue in effect fire insurance with extended coverage in an amount as near as possible to the full replacement value of the Premises without deduction for depreciation, with STEVENS, CITY and AGENCY designated as named insureds, as their interests may appear. STEVENS shall, at its sole cost and expense, purchase such other insurance, as necessary, including but not limited to, errors and omissions, medical payments, malicious mischief, and vandalism insurance, fidelity bonds and workers compensation, and other risks as may customarily be covered with respect to -10- similar Premises, with CITY and AGENCY designated as additional named insureds. As evidence of required insurance, CITY or AGENCY may, in lieu of actual policies, accept certificates, issued by the insurance carrier showing said policies in force for the specified period. All such policies or certificates of insurance maintained by STEVENS shall contain a provision that said policy or policies shall not be ~ancelled or terminated, nor expire by their terms, without thirty (30) days' prior wrftten 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 provide, if r~asonably possible, for waiver of the following rights, to the extent that the respec- tive insurers would have the rights without such ~aivers: (a) subro~at~ion 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 ~mprovements 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 its \ interest in the premises. The insurance required to be furnished by STEVENS may be furnished by a policy or policies also covering the adjacent office condominium. All costs in obtaining and maintaining the forms of insurance described in this Section 4.1 shall be borne by STEVENS. 4.2 Indemnity. STEVENS shall hold harmless, indemnify and defend CITY and AGENCY, and each of their officers, employees and aqents from any and all liability, losses, damage or attorneys' fees arising Br alleged to arise from the performance of the STEVENS' duties described herein. This obligation is in addition to the obligation to maintain insurance as otherwise provided herein. 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 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 substan- tially 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 recon- struction. -12- 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 ten years at the end of each exten- sion thereof unless and until any one or more of the parties hereto, or successors to said parties give notice to the other parties in writing prior to the end of the original or extended terms that the term of this Agreement shall not be extended. Upon any termination upon the election of STEVENS or a successor to its interest, STEVENS and/or its successor in interest shall have no further rights of use of that part of the Premises described in Exhibit "A" other than those enjoyed by the general public, and hereby irrevocably offers the Premises as described for dedication to the City of Tustin. ARTICLE 7 USE RESTRICTIONS 7.1 Permitted Uses. All parties hereto agree that no part of the Premises shall ever be used or caused to be used or allowed or authorize~ 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 Premises. 7.3 Signs. No sign, poster, billboard or other advertising of any kind shall be permitted on any portion of the Premises, -13- 7.4 Storage and Waste. Ail 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 maintained on the mall and plaza area other 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. N~ structure of a temporary character, trailer, camper, boat or any machinery or equipment shall be permitted to remain on the mall and plaza area. There shall be no obstruction 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. 7.6 Regulations. CITY shall have the right to prescribe and enforce such regulations, limitations and restrictions upon vehicular and pedestrian access and use of the Premises by such ordinances, resolutions or minute orders as may be adopted from time to time by the City Council of the City of Tustin. ARTICLE 8 GENERAL PROVISIONS 8.1 Amendment. This Agreement may not be amended except by way of a written document executed by each of the parties hereto. -14- 8.2 Legal Proceedings. Failure to comply with any of the tel~ns of this Agreement by a party, its guests, customers, employees, invitees, lessees, or successors in interest, shall be grounds for ~elief which may include, without limitation, an action to recover sums due for damages, injunctive 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 defaulting 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 party, as well as the amount of any delinquent payment, together with interest, costs of collection and court costs. Each remedy provided for in thi's Agreement shall be cumulative and not exclusive 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 o~e provision or portion hereof 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 be deemed to be a nuisance. The article and section headings, titles and captions have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. As -15- used herein, 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. In lieu 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 address shall have been fur- nished, to the street address noted below. Such notice shall be 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 the parties and all successors and assigns of the parties. CITY and AGENCY acknowledge and agree that STEVENS contemplates the assignment of its interest in this Agreement to a nonprofit mutual benefit corporation intended by STEVENS to be created as a result of STEVENS' development of the office condominium project to be located adjacent to the mall and plaza area. Such assignment may be made by STEVENS provided that the organizational structure, financial status, ability and condition of the propsed assignee are of a nature sufficient to meet and satisfy the obligations of STEVENS herein and provided that said nonprofit mutual benefit corporation agrees in writing with CITY and AGENCY to assume all of the -16- obligations of STEVENS arising out of this Agreement. 8.7 Nondiscrimination. The parties 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, or enjoyment of the Premises, nor shall the parties hereto or any person claiming under or through them, establish o~ 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. ~ 8.8 Recordation. A copy of this Agreement, or a ~emorandum thereof, may be recorded by any party hereto. Should any party desire to record a Memorandum of this Agreement, each of the parties agree to execute the same in such a manner as is required for recording the same. 8.9 Covenants Running With the Land. The benefits of this Agreement shall run with the land underlying the office condo- minium project described herein on Exhibit E attached hereto and incorporated hereby by this reference, with the land under- lying the parking structure described on Exhibit F attached hereto and incorporated herein by this reference, and the Premises. The burdens of this Agreement shall run with the land described herein on said Exhibit E. -17- THIS AGREEMENT has been executed on this ~-~, 1982, at Tustin, California. TUSTIN COM~IUNITY REDEVELOPMENT AGENCY, a statutory entity, to-wit a California redevelopment agency Chairman ~ STEVENS SQ[3ARE a California limited partnership By Gfeller Development Company, Inc., a California corporation as General Partner ATTEST: Secretary~r RedevelOpment Agency By Douglas M. Gfeller, President Address: 300 Centennial Way Tustin, California 92680 Address: 228 West Main Street T~stin, California 92680 CITY OF TUSTIN Mayor ATTEST: Address: 300 Centennial Way Tustin, California 92680 JGR:se:R:02/04/82 (A-14) 1 2 3 4 5 6 7 8 9 10 tl 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTIO~ NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFOR3]IA, VACATING A PORTION OF "C" STREET. ~EREAS, the City Council of the City of Tustin, California, on January 4, 1982, passed and adopted Resolution No. 2014, a Resolution of the City Council Declaring i~s Intention to Vacate a Portion of "C" Street as more particularly described therein; and WHEREAS, pursuant to the provisions of said Resolution a public hearing was set, the Resolution was duly published and notices of hearing were duly posted along the portion of the street to be vacated, all as required by law; and WHEREAS, on the 1st day of February , 1982, at 7:30 p.m., a public hearing has been duly held and all persons interested in the proposed vacation have been heard by the City Council. ~OW, THEREFORE, the City Council of the City of Tustin, California, does hereby resolve as follows: Section 1. That the City Council of the City of Tustin, California, finds from all of the evidence submitted that the portion of "C" Street located between ~ain Street and Sixth Street in the City of Tustin, California, more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference, and shown on the plat attached hereto and marked Exhibit "B", is unnecessary for present or prospective use, except as reserved as hereinafter provided. Section 2. That the vacation of said portion of "C" Street has been determined to be a project which will not have a significant effect upon the environment and Notice of Preparation of Negative Declaration has been properly published and that after, consideration of the Negative Declaration, a copy of which is attached hereto, together with comments received during public'review, the Negative Declaration is approved. Section 3. That the above-described portion of "C" Street be, and the same hereby is, vacated to the extent that its character and use are changed from a'regular public street to a pedestrian and vehicular traffic mall and plaza. Said vacation is subject to the reservation and exemption from this vacation of permanent easements, rights and rights of way for pedestrian and vehicular traffic and other public uses within limitations and upon conditions prescribed from time to time by the City Council of the City of Tustin, and EXHIBIT A 1 2 4 5, 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 reservation of a permanent easement or easements and right at any time and from time to time to construct, maintain, operate, replace, remove and renew aboveground and under- ground facilities and appurtenant structures under franchise to and/or owned by Orange County Sanitation District ~]o. 7, Southern California Gas Company, Tustin Water Works, Pacific Telephone and Telegraph Company, Southern California Edison Company, the City of Tustin and the Tustin Community Redevel- opment Agency and all other public agencies and public utilities in, on, over, through and across said street and all portions thereof and the rights to construct, maintain, operate, replace, remove and renew and enlarge lines of pipe, conduits, cables, wires, poles and other convenient structures, equipment and fixtures for the operation of gas pipelines, telegraphic and telephone lines, railroad lines and for the transportation or distribution of electric energy, petroleum and its products, ammonia, water and incidental purposes, including access to keep the property free from inflammable materials and otherwise protect the same from all hazards in, upon and over said street or part thereof; there are further reserved and exempted from this vacation a permanent easement of all rights to the public, to the City of Tustin and to the Tustin Community Redevelopment Agency for use, access, ingress, egress, and to cross over as set forth in that certain agreement by and among the City of Tustin, the Tustin Community Redevelopment Agency, Stevens Square and Stevens Square Association, a copy of which shall be attached hereto marked "Exhibit C" and incorporated herein by this reference as though set forth in full hereat. This resolution and vacation shall only be effective upon execution by the City and all other parties thereto of a Parking Structure Lease, Option Agreement and Escrow Instructions, and Mall and Plaza Agreement. Section 4. The City Clerk is hereby ordered to have recorded in the office of the Recorder of the County of Orange, a certified copy of this Resolution. The City Clerk is further ordered to file a Notice of Determination con- sistent with this resolution with the Clerk of the County of Orange. PASSED ~D ADOPTED at a regular meeting of the City Council of the City of Tustin, California, held on the 1st day of February , 1982. ATTEST: MAYOR CITY CLERK RLL:lw:D:l/13/82 JGR:se:a:l/21/82 (B) JGR:se:R:2/2/82 "C" STREET VACATION All that ?ortion of "C" Street' lying'between Blocks 16 an 17 as shown on the Map of a Part of Tustin City filed in book 4, pages 218 and 219 of Miscellaneous records of Los Angeles County California and that portion of "C" Street as dedicated for public use on a map of Tract 10979, filed in Book 495, pages 32 and 33, of Miscellaneous Mai~S, records of Orange County, California, described as follows: Beginning at a point in the West right-of-way line of said Street that is distant thereon S. 0" 10' 37" E. 88.40 feet from the Southerly terminus' of that certain 22.00 foot radius curve in the boundary of said Tract No. 10979; thence continuing S. 0" 10' 37" E. 79.86 feet along said West line to a point on a non-tangent 20. O0..foot radius curve that is concave Northerly, a radial to said-point bears S. 20" 39' 51" E.; thence Westerly 7.15 feet along said curve through a central angle of 20" 29' 14"; thence non-tangent S. 0" 10' 37" E. 28.00 feet to a point om a non-tangent 20.00 foot radius curve that is concave Southerly, a radial to said point bears N. 0" 10' 37" W.; thence Easterly 7.15 feet along said curve through a central angle of 20" 29' 14"; to said West right-of-way line; thence non-tangent S. 0" 10' 37" E. 81.57 feet along said line; thence N. 89" 49' 23" E. 40.50 feet to the beginning of a 34.00 foot radius curve that is concave Southwesterly; thence Southeasterly 28.83 feet along Said · curve through a central angle of 48" 35' 25" to a point of cusp with the East right-of-way line of said "C" Street; thence N. 10' 37" W. 213.57 feet along said line; thence S. 89" 49' 23" W. 0.54 feet to a point on a non-tangent 35.00 foot,radius curve that is concave Northerly;. a radial to said point bears S. 80" 03' 25" E.; thence Southwesterly and Northwesterly 86.88 feet along said curve through a central angle of 142" 13' 10" to the p.oint of beg~nnlng. EXHIBIT "A" SUBJECT HOWEVER tO the reservation and exemption.of permanent easements, rights and rights of way for pedestrian and vehicular traffic and other public uses within limitations and upon conditons prescribed from time to time by the City Council of the City of Tustin, and reservation of a permanent easement or easements and right at any time and from time to time to construct, maintain, operate, replace, remove and renew aboveground and underground facilities and appurtenant structures under franchise to and/or'owned by Orange County Sanitation District No. 7, Southern California Gas Company, Tustin Water Works, Pacific Telephone and Telegraph Company, Southern California Edison Company, the City of Tustin and the Tustin'Community Redevelopment Agency and all other public agencies and public utilities in, on, ouer, through and across said street and all portions thereof and the rights to construct, maintain, operate, replace, remove and renew and enlarge lines of pipe, conduits, cables, wires, poles and other convenient structures, equipment and fixtures for the operation of gas pipelines, telegraphic and telephone lines, railroad lines and for the transportation or distribution of electric energy, petroleum and its products, ammonia, water and incidental purposes, including access to keep the property free fr~m inflammable materials and otherwise protect the same from all haza'rds in, upon and over said street or part thereof; there are further reserved and exempted from this vacation a p~rmanent easement of all-rights to the public, to the City of Tustin and to the Tustin Community · EXHIBIT "A" Redevelopment Agency for use, access, ingresS, egress, and to cross over as set forth in that certain agreement by and among the Cit,-of Tusti~, the Tustin Community Redevelop~ent Agency, Stevens Square and Stevens Square Associaton, a copy of which is attached hereto marked Exhibit "C" and incorporated herein by %bis reference as though set forth in full hereat. EXHIBIT PLAZA A' GREEMENT FOR USE OF' STEVENS SQUi=3'E - .- EXHIBIT C ABOVE THIS LINE FOR REC. ORDER'$ USE Documentary transfer tax $ ............................................ f-I Computed on full value of property conveyed, or [] Computed on full value less liens & encumbrances remaining thereon at time of sale. _glgnagure oJ* dec]aran! or agent determining ~ax · firm name [] Unincorporated area [] City o.[ .............................. :... - Grant Deed FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Stevens Square, a California limited partnership hereby GRANT(S) to City of Tustin, A Municipal Corporation, a Perpetual Easement for Pedestrian purposes, in, on, over, through and across the following described real property ia the City of TUStill county, of Or'aFdc , st. at'e of That portion of 'C" Street (abandoned) and Tract 10979, in the City of Tustin, County of Orange, State of California as shown cna map filed in Book 495, Pages 32 and 33, Miscellanecus Maps, records of said county described as folIcws; Beginning at a point in the East line of said "C" Street that is diseant there on N. 0° 10' 37" W. 48.67 feet frcm the Southwest c~rner of Lot 12, Block 17, as shown cna Map of a Portion of Tustin City filed in Book 4, Pages 218 and 219 of Miscellaneous Records of Los Angeles County; thence S. 89° 49' 23" W. 92.50 feet; thence N. 37" W. 92.62 feet; thence N. 89° 49' 23" E. 31.88 feet; thence bl. 44e 07' 08" 42.09 feet to a point on a non-tangent 35.00 foot radius curve that is c~ncave Northerly, a radial to said point bears S. 6' 21' 48" E.; thence Easterly 16.~3 feet along said curve through a central angle of 26° 24' 38"; thence non-tangent S. 77° 30' 03" E. ~2.24 feet; thence N. 89° 49' 23" E. 4.20 feet to the East line of said "C" Street: thence S. 0' 10' 37" E. 125.37 feet along said East line to the point of beginning. Dated ~TA?I: O~ CALIFORP,~,~ , COUNTY OF ~ ~; · '~ Q On , .% , ' ' ' ' ' known to ~ to ~ t~ '" Preslden(, in" ..... ? 2j .L': ...,T F '- ' . ~hilf of s~id corporition, slid cor~rlli~ ~ing ~nown to ~ to ~ the generll pa~n~ ~ . the Hmi~ed parsners~Jp thai executed the w~thln ~ns~ment, and tcknow~edged to ~e t~er suc~ parlner and that such partnership ex~t~ the lame. WIT~E~ my ~end ind o~clil seal before me, the und.ersigned, a.Notery Public in and for Stevens Square, A California limited partnership BY: Gfeller Development Company, Inc. A California Corporation, il partner 1 EXHIBIT · 5~,aIL. OR STAMp tt~01 C~ TV~IG~/ PEDESTRIAN EASEMENT ~{PA~:w' ABOV£ TH/~ L.JN~ FOR ~S(ZO~O~:R'S Documenlary trans'.er tax $ ............................................ Computed on full value of property conveyed, or Computed on full value {~s Hens & cncumhrance~ remaining, thereon at time of sale. Si&nature o[ declarant or agent determining tax . ~rm name [] Unincorporated area{"'] C~ty of .................................. Grant Deed FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Stevens Square, a California limited partnership hereby GRANT(S) to City of Tustin, A Municipal Corporation, a Perpetual Eas~n~nt for Vehionlar ingress and egress and surface drainage in, on, over, through and across the following described real property in the City of T6stin county of Orar~e , state of Cali{omia: ~hat portion of "C" Street (abandoned) and Tract 10979, in the City of Tus~in, CcuntY of Orange, State of California as shown o~ a map filed in Bcok 495, Pages 32 and 33, Miscellaneous Maps, records of said county, described as follows: PARCEL 1: ~ PARC~r. 2: CamL~ncing at a point in the East line of said "C" Street that is distant there on N. 0° 10' 37" W. 48.67 feet frcm the Southwest corner of Lot 12, Block 17, as shown on a Map of a Portion of Tustin City filed in Book 4, Pages 218 and 219 of Miscellaneous Records of Los Angeles County; thence S. 89° 49' 23" W. 18.00 feet to the TRUE POINT C~ BEGINNING: thence $. 89° 49' 23" W. 74.50 feet; thence N. 0" 10' 37" W. 92.62 feet; thence N. 89° 49' 23" E. 31.88 feet; thence N. 44" 07' 08" E. 42.09 feet to a point on a non-tanqent 35.00 foot radius curve that is concave Northeasterly; a radial to said point bears S. 6' 21' 48" E.; thence Northwesterly 30.84 feet along said curve through a Central angle of 50" 28' 56"; thence non-tangent S. 44° 07' 08" West 9.55 feet to the beginning of a 20.00 foot radius curve that is concave Northwesterly; thence Southwesterly ~5.95 feet along said curve through a central angle of 45° 42' ]5"; thence S. 89' 49' 23" W. 39.07 feet; thence S. 0° 10' 37" E. 149.95 feet; thence N. 89" 49' 23" E. 69.50 feet to the beginning of a 2.00 foot radius ~rv~ that is concave Southwesterly; thence Southeasterly 3.14 feet along said curu~ through a central angle of 90e 00' 00"; thence S. 0" 10' 37" E. 18.34 feet; thenc~., N. 89' 49' 23" E. 22.50 feet to the beginning of a 34.00 foot radius curve that is concave Southerly; thence Easterly 7.56 feet along said curv~ through a central angle of 12° 44' 37"; thence non-tangent N. 0° 10' 37" W. 51.50 feet to the TRUE POINT CF B~T:INN1/q~. acknowledged to me thai such~partner and thl! such partnership WITNESS my hand and o~{a{ sell __ Beginning at a point on the East line of said "C" Street that is distant thereon N. 0° 10' .37" W. 23.98 feet frcm the Southwest corner of LOt 9, said Block 17; thence N. 0° 10' 37" W. 26.02 feet along said East line; thence S. 89° 49' 23" W. 0.54 feet to a point on a nc~-tangent 35.00 foot r~dius curv~ that is concave Northwesterly, a radial to said point bears S. 80' 03' 25" E.; thence Southwesterly 28.88 feet along said curve thrcugh a central angle of 47' 16' 59"; thence non-tangent S. 77~ 30' 03" _EL~12.24 feet; the..nce N. 89" 49' 23" East 4.20 feet to the point of beginning. l ~'~'~',~' ~~ "4/~ I ~,,~ ~ ~ ~ ~Z _ J * ~I ~ I, ;:~:~ · ~ ~ ~,~ J ~'~ . ~__ ,~ ~,~.~. ~ - '!- VAN DELL AND ASSOCIATES. ACCESS FASFHFNT B m CAIV~O I~. EXttIBIT ~ Ail of the real property at the southwesterly corner of Main and C Streets in the City of Tustin, County of Orange, State of California, upon which an office condominium in several structures is located and known as Stevens Square, including Assessor's Parcel Number 401-621-01 and Tract Number 10979 recorded in Book 495, Pages 32 and 33 in Miscellaneous Maps, Official Records of Orange County, California. EXHIBIT E COVEF,~,.-,E PuL 1 ;:.:¥ OR- 1 SCHEDULE C THE LAND REFERRED TO IN THIS POLICY IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY oF ORANGE, CITY OF TUSTIN AND IS DESCRIBED AS .FOLLOWS: PARCEL 1: THE SOUTH 50.00 FEET/.~F THAT p~!C~J]OF'LO{S 7, 8 AN .D~IN ~LOCi( 17 OF "A PART OF TUSTIN CITY", AS SHOWN ON MAP RECORDED 'irl~ BOOK 4, PAGES 218 AND 219 OF MISCELLANEOUS RECORDS OF LOS AN~CELES COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID LOT 9; THENCE EAST 137.09 FEET TO THE NORTHWEST CORNER OF THE LAND CONVEYED TO CHAS. S. KELLY BY DEED RECORDED JANUARY 20, 1912 IN BOOK 206, PAGE 8 OF DEEDS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE SOUTH ALONG THE WEST LINE OF SAID LAND, 150.00 FEET TO THE SOUTHWEST CORNER THEREOF; THENCE WEST 136.93 FEET TO THE SOUTHWEST CORNER OF SAID LOT 9; THENCE NORTH 150.00 FEET TO THE POINT OF BEGINNING. PARCEL 2: ?.RIGH~ OF WAY FOR 'ALLEY ~'URPOSES OVER !HE ~OLITH 10.00 FEET 0C THAT ORTION OF LOTS 6 AND 7 IN BLOCK 17 OF A P~RT OF TUSTIN CITY', AS ~ SHOWN ON A MAP RECC, RDED IN BOOK 4, ~AOES 21~ AND ~MISCELLAN~?US RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, DE:~CRIBED AS FOLLOW~. ' / BEGINNING A; A F'OI~T 141 S3 'FE~T WEST OF ~HE NORTHEAST CORNER OF / SAID BLOC~ ]7, SAID POINT ~EING ALSO 1&2.07 FEET EAST OF THE NORTHWEST CORNER OF SAID BLOCK ~7~ THENCE SOUTH 150.00 FEET TO A oFPOINT141.~ FEET ~EST OF THE ~OUTHEAST CORNER OF LOT 4 OF SAID BLOCK iT, AND BEING ALSO 161.9~ FEET EAS~ OF THE SOUTHWEST CORNER LOT ? OF SAID BLOCK 17; THENCE.~EST 2~.00 FEET~ THENCE NORTH 150.00 FEET~ THENCE EAST 2~ O0 FEET TO THE POINT OFBE~INNINU.,- PARCEL 3: LOTS I0, 11 AND 12 IN BLOCK 17' OF A PART OF TUSTIN CITY, AS SHOWN ON A MAP RECORDED IN BOOK 4, PAGES 218 AND 219 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, - WHB:CLC · -EXHIBIT *o~- 37 I · I ~® 27 ( I Ig DESCRIPTION ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, OF ORANGE, CITY OF TUSTIN, DESCRIBED AS FOLLOW~: O~-l~7&&O COUNTY THAT PORTION J3F 5TH STREET AS SHOWN ON A MAP OF TUSTIN CITY RECORDED IN r~OK 4, PAGE 218 GF MISCELLANEOUS RECORDS OF LOS ANGELE~ COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS~ BEGINNING AT A POINT IN THE EAST %INE OF "C" STREET, AS SHOWN ON SAID MAP, 300.00 FEET SOUTH OF THE NORTHWEST CORNER OF BLOCK I7 OF TUSTIN CITY; THENCE EAST 150.00 FEET TO THE NEST LINE OF THE LAND CONVEYED TO N. F. RITCHEY BY DEED RECORDED MAY 5, 1904 IN BOOK PAGE 202 OF DEEDS, RECORDS OF ORANGE COUNTY, CALIFORNIA; THENCE ALONG SAID WEST LINE AND ALONG THE NEST LINE OF THE LAND CONVEYED TO ARTHUR F. RITCHEY RECORDED MAY 5, 1904 IN BOOK 105, PAGE 203 OF SAID DEEDS, SOUTH 66 FEET TO THE NORTH LINE OF BLOCK 24 OF SAID TUSTIN CITY; THENCE ALONG SAID NORTH LINE, WEST 150.00 FEET TO SAID EAST LINE OF "C" STREET; THENCE ALONG SAID EAST LINE, NORTH 66.00 FEET TO THE POINT OF BEGINNING. WHB: MF PLATS (AND CC&R'S, IF ANY> ENCLOSED. NOTE~ ACCORDING TO THE PUBLIC RECORDS, THERE HAVE BEEN NO DEEDS CONVEYING THE PROPERTY IN THIS REPORT WITHIN SIX MONTHS PRIOR TO THE DATE OF THIS REPORT, EXCEPT AS FOLLOWS~ NONE. PAGE 3 CAMINO