12-20-2011 - Disposition & Development Agreement with CGM Development, Inc.0
City of west Covina
Memorandum
DATE: December 20, 20
TO: Andrew G
FROM: Christopher J.
Community I
AGENDA
ITEM NO. 19
DATE: December 20, 2011
City Manager and the City Council
t Commission Director
SUBJECT: DISPOSITION! AND DEVELOPMENT AGREEMENT WITH CGM
DEVELOPMENT, INC.
RECOMMENDATION:
It is recommended that the City Council approve the Disposition and Development Agreement
("DDA") with CGM Development, Inc. ("CGM") and authorize the City Manager, or his
designee, to execute all agreements necessary to implement the medical/professional office
development project. j
DISCUSSION:
CGM is proposing a four-story, 55,680 square foot medical/professional office development at
the Civic Center property. The office building would be located on an approximately 28,192
square foot pad at the corner of West Covina Parkway and Garvey Avenue. The site is currently
zoned "P-B" (Public Building) and under the proposed "N-C" (Neighborhood Commercial)
zoning, a variety of professionals services, medical and retail uses would be permitted. The
proposed building will be comprised of 39-condominium units allowing for private ownership of
the individual units. CGM is purIsuing the medical/professional office condominium project as
they believe there is a strong market demand from small business professionals wishing to own
their own property instead of Teasing, and because CGM has demonstrated its ability to
successfully develop similar condominium project in West Covina (i.e., Nogales Medical Plaza,
a Class -A building).
The medical/professional office development will be supported by a new 218-space parking lot
("Office Parking Lot"), which will be constructed by CGM. The City will retain ownership of
the land and will grant CGM a p4rking easement. CGM will be responsible for the full cost to
construct and maintain the Office Parking Lot, and will install a paid parking system similar to
the system already install at the (Civic Center. The revenue collected from the paid parking
system will be collected by the City. Tenants of the building will be issued a parking pass, and
visitors may be provided free parking by the use of a validation system or temporary parking
passes. It is important to note that this parking arrangement may be amended or adjusted to
improve parking for the tenants, visitors and City.
Although the Office Parking Lot would be dedicated for the office development, library patrons
would also be able to utilize the lost after business hours and weekends free of charge. The three
handicap parking spaces adjacent o the library building will be available to the library patrons at
no fee.
The project will be a high-qualit
process of marketing the site seve
resulted in an issue of how to lit
because medical use has a higher
allow the flexibility of tenant mill
was performed analyzing the pr(
created an incorrect project descri
and further created a perceived p
that a 100% medical use of the bi
peak hour, which is less than the
Center has ample over -flow parki
r medical/professional office development. However, in the
-al medical users indicated a desire to purchase the units. This
iit which units could and could not be used for medical use,
parking requirement under the City's Zoning Code. In order to
and also to study the "worst -case" scenario, a parking study
ject as a 100% medical use. In doing so, this accidentally
ition that the entire project was dedicated to 100% medical use
irking shortage by Code. The parking demand study found
ilding would generate a parking demand of 177-spaces during
18-spaces proposed to be constructed. In addition, the Civic
ig, if necessary. The City conducted a parking survey of the
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Andrew G. Pasmant, City
December 20, 2011
Page 2 of 8
and the City Council
Civic Center's 625-parking spaces (surface and parking structure). The survey concluded that at
peak hour, 79% of the Civic Center parking was utilized resulting in 137-parking excess spaces
available for over -flow parking, if necessary.
One of the primary reasons that t1
to allow flexibility for the City 1
easement provides for a conditiol
possession of the Office Parking
development. Such a condition e
upgrading the Civic Center, the
Center property.
Library Parking
The proposed project is located in
parking spaces (Lot "A") from th
agreement with the County is set t
library, should the City not reneNA
now, CGM has proposed to conso
lot which currently has 42-parkin
Health Services and the library. (
no cost to the City or the Co
consolidating the library parking
proposed parking lot will also incl
deter non -library patrons from par.
The parking study conducted ve>
departments and visitors to the c
library's hours of operation are fi
Saturday between 8:00 to 6:00
employees and 15 employees wo
located in the library building e
additional 4 people, for a total of
as early as 7:00 a.m., when the lil
present, 30 parking spaces were 4
9:30 a.m., approximately 73-spai
30-parking spaces, 43 of the 73-1
peak hour of 11:00 a.m., 131-pa
spaces were most likely utilized b
land for the Office Parking Lot is not being sold to CGM is
develop the site in the future, if so desired. The parking
that the City may terminate the parking easement and take
of land by replacing the office parking spaces in the future
3ures that if in the future the City envisions redeveloping or
ity maintains control of a significant amount of the Civic
an area where the County of Los Angeles currently leases 100-
City (see Attachment No. 1 — Site Plan). The parking lease
o expire in 2023 and poses a future parking loss for the County
the lease. As a remedy to resolve a potential future problem
lidate all County library parking onto a County -owned parking
g spaces (referred to as Lot "D") located between the County
'GM will build a new 129-space parking lot on County land at
unty. The City believes that the County is supportive of
lot as it secures library parking now and for the future. The
ude the County requested parkng gate and validation system to
king in the lot.
ies that non -library patrons (i.e. park and ride, other County
urthouse) are currently impacting library parking areas. The
in 10 a.m. to 8:00 p.m., Tuesday, Wednesday, Thursday, and
,.in. The library has approximately 29 full- and part-time
:ing together at any given time. The library's regional office
Zployees 11 persons and the bookmobile operation employ
0 people at any given time. The parking survey revealed that
-ary was closed and no library employees or visitors would be
;cupied. More parking spaces filled up each half hour and at
�s were occupied. Assuming that library employees utilized
irking spaces were most likely used by non -library users. At
zing spaces were utilized, of which approximately 43 to 62-
non-library patrons.
The County is of the opinion that by installing gates and parking validation system, the library
will be able to provide better parking amenities for library patrons and discourage non -patrons
from parking in the lot. As such, 129-parking spaces would be sufficient for library employees
and patrons by deterring parking by non -library patrons.
The County has agreed to concept of consolidating all library parking into the new 129-parking
space lot, and construction drawings are being finalized which are subject to approval by all
County departments. The County has also selected the parking validation system to be installed
by Developer. In addition, negotiations on the County agreements to approve the project have
been completed and are being presented for the City Council consideration.
Trees
As part of CGM's proposed proje
but learned that the site is compri
structural improvements. CGM
the entire site. Unfortunately, thi
are not protected or required to
A, CGM originally attempted to save as many trees as possible
ied of undocumented fill that would not support the load of the.
lust excavate all undocumented fill to bedrock and recompact
requires a majority of trees to be removed. Although the trees
)e replaced by City's Municipal Code, the development will
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Andrew G. Pasmant, City Manager and the City Council
December 20, 2011
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result in the installation of a greater number of trees than are being removed by the proposed
project. According to the Developer, the project will remove a total of 114 trees on the City land
and 19 trees on the County property (133 total trees). Of the 114 trees, 58 are large trees of 20
inches to 36 inches in trunk diameter, 34 trees are medium size of 7 inch to 18 inch in trunk
diameter, and 22 are small trees and shrubs. The project will install 150 trees on -site (office
development area and County Lot D parking area) and additional 50 trees will be installed at
City parks or other public locations as desired by the City, for a total of 200 new trees. Thirty of
the 150 trees to be installed on -site will be 36-inch box size and will be planted adjacent to the
new medical/professional office building. CGM's Landscape Architect indicates that the trees
being removed are mature and could create significant issues in the future, including disease,
infestation and fallen trees and limbs. The overcrowded landscape creates trees with significant
loss of natural canopies and significant debris. Many trees exhibit uneven and poor shape and
form, a shallow root systems and an unfavorable tree tilt in several trees could cause such trees to
topple.
It is also important to note that even if the proposed project does not move forward, the City may
lose several trees along West Garvey Avenue due to the Caltrans HOV expansion project.
Caltrans will be installing a five-foot side sidewalk and retaining wall along West Garvey
Avenue from West Covina Parkway to Crazy Horse restaurant. As the landscape berm is
undocumented fill, Caltrans may! have to over -excavate and recompact the soil removing trees
and landscaping in the process.
The current zoning for the area is j"P-B" (Public -Building), which is the same zoning as the Civic
Center and the City yard, and is not designated open space or park. As a result, the landscaping
within the area is not designated for park or open space, and is considered to be landscaped area
for P-B zoning designation.
Terms
The DDA will provide for the !authorization of the sale and development of the project in
conjunction with the agreements with the County of Los Angeles ("County"). The following is a
summary of the project deal points:
1. Proposed Development:
square foot medical/profe
commercial retail and res
spaces parking lot on 89,
parking lot, the existing 1
library will be redesignec
County -owned parking lc
stalls to 129-parking stall
the City. The constructiol
the existing Lot A parl
disturbance to the library.
2. Site: The proposed deN
Parkway and Garvey A
approximately 28,192 sc
medical/professional off
medical, commercial reta
space parking area. The i
and would have the right
3. Purchase Price: CGM
right to park on the City -
higher than the appraised
of the right to park on th(
prepared by two different
CGM is proposing to develop a 4-story, approximately 55,680
sional office that will also allow professional offices, medical,
aurants. Parking for the project will be supported by 218-
144 square foot of land. In order to construct the new office
)0-space City -owned parking lot (Lot A) leased to the County
to support the project. CGM will also reconstruct the south
(Lot D) to increase library parking spaces from 42-parking
with a parking validation system at no cost to the County or
of the new Lot D library parking lot will be completed before
ing lot is decommissioned to ensure minimal operational
.opment is located on the southeast corner of West Covina
�nue of the Civic Center. The building pad will be on
are feet of un-developed land for the development of a
development that will also allow professional offices,
and restaurants, and 89,644 square foot of land for the 218-
ty would maintain ownership of the City -owned parking area
ability to develop it in the future, if desired.
,ill purchase the 28,192 square foot building pad and have the
,weed parking area. The purchase price is $700,000 (which is
fair market value) and includes full consideration for the value
City -owned parking area. Two separate appraisals have been
VIAI appraisers. Jay C. Fisher, MAI was retained by CGM and
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Andrew G. Pasmant, City
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Page 4 of 8
appraised the value of the
Lidgard and Associates, a
and the City Council
pad and right to park at $550,000. The City's appraiser,
d the office pad and right to park at $660,000.
The City will carry a note for 80% of the Purchase Price for 180-days after the close of
escrow at a fair market interest rate of 7% per annum. As a result, $140,000 would be
received at the close of escrow and $579,600 (including principle and interest) would
become due after 180-days!, (or $719,600 total).
4. Escrow Period: Escrow will be opened within 15-days from approval of the DDA. The
developer will deposit $50,000 an as good faith deposit. The term of the escrow period is
6-months or sooner. The City and the developer would each pay one-half (or equal
share) of the escrow, recording, and notary fees. The City would provide the standard
CLTA title insurance poliey, and the developer may obtain extended ALTA coverage at
its cost.
5. Local Jobs: Prior to commencement of construction, the developer and its contractor
will make reasonable efforts to first hire West Covina residents. The Developer and its
contractor may work with local employment development department (e.g., EDD) or hold
on -site job fairs. The prof ct would also result in approximately 180 new permanent jobs
and 114 construction jobs.
i
6. Construction Start and Completion: The construction commencement date is within
180-days from the effective date of the DDA and issuance of permits from the County
and the City. The new library parking Lot D will be completed before the existing Lot A
parking lot is decommissioned. The completion term is 24-months from the construction
commencement date.
i
7. County Allreements: The County is in agreement with the new library parking lot
design, and two (2) separate agreements are being finalized to allow for removal of the
100-space parking lot from the County's lease and the ability to construct the new 129-
space parking lot on the County property. The Developer will sublet the County Ground
Lease Agreement to facilitate the improvements and will further provide all necessary
insurance and indemnity for City and County.
Project Benefits
The proposed project would result in various benefits to the City, County and the library in many
ways, including but not limited to'lthe following:
1. The project will provide is high -quality medical/professional office development with
landscaping and water fountain features, and will become the gateway into the Civic
Center. An entry monument signage would be constructed at the intersection of Garvey
Avenue and West Covina Parkway to predominately identify the Civic Center facilities.
2. The development does not, impact the Civic Center's grass area between City Hall and the
library where City functions are held (i.e. Easter Egg Hunt).
3. The development would
jobs.
4. The development would
the City.
5. The project will create ad
the City's professional w,
draw of people working,
benefits and revenues to t
approximately 180-permanent jobs and 114-construction
approximately $183,000 in new annual property tax to
d synergy within the Civic Center by infusing and increasing
force and attracting more visitors into the City. The added
c)pping and dining would further result in economic spin-off
surrounding area.
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Andrew G. Pasmant, City
December 20, 2011
Page 5 of 8
no
7
The project would
also promote West
City would receive land
80% of the purchase price
and the City Council
medical/professional services to the community and would
as a business -friendly City.
proceed of $700,000, plus interest for carrying a note of
180-days at an annum interest rate of 7%.
The project would result in West Covina businesses serving West Covina residents.
9. CGM will construct a nev 129-space library parking lot on the County's property at no
cost to the County or the City. This will benefit the County and the library in the
following ways:
a. The current 100-space library parking is leased to the County from the City and
will expire in 2021 The new County 129-space parking lot would alleviate the
future parking shortage and the potential impact to the library operation when the
100-space parking lot reverts back to the City.
b. At the request of t e County library, a gate and parking validation system will be
installed in the new 129-space County parking lot. This will allow for the library
to have better control of the parking lot usage for its patrons and will be a
deterrent for non -library users such as park and ride, other County facilities and
Municipal Court parking.
C. The County has approved the concept of consolidating library parking to a new
129-space parking lot on County land and has approved the initial design of the
new County library parking lot. The parking lot is subject to the County's final
approval and the construction drawings are currently in the County's plancheck
process. The County believes that the parking validation system will discourage
non -library users, resulting in adequate parking for library patrons.
d. The office devel
adjacent to the li
parking lot will t
weekends.
10. The 218-space Office Par
business hours and week(
and easement granted to t
certain rights to the land
Center project in the futt
development.
ment will also allow the three handicap parking spaces
iry to be available for library patrons and the entire office
available to library patrons after business hours and during
ng Lot would also be available to library patrons during pon-
ds at no charge. This parking lot will be owned by the City
office development project. As such, the City will maintain
including the ability to develop the land for a larger Civic
subject to constructing replacement parking for the office
11. The project will replace more trees than it is removing (200 trees replaced to 133 trees
lost). 150 trees will be i eplaced on -site (office development area and County Lot D
parking area) of which 30 trees will be a 36-inch box trees and will be planted adjacent to
the medical/professional office development. Additional 50 trees will be installed at City
parks or other public locations as desired by the City, for a total of 200 new trees.
12. The proposed project has a higher landscaping coverage (15.34%) than required by Code
(8%) and the project will become a prominent gateway into the Civic Center.
13. The proposed is consis-
Covina General Plan as
a. The General Plan
Headquarters Cit
(1986) when the (
Business District
with the established goals and objectives of the City of West
lows:
ites that the City's vision of establishing West Covina as "the
of the East San Gabriel Valley" dates back over 25 years
,ic Center property was identified as part of the City's Central
)re boundary in the City's General Plan. In order to achieve
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Andrew G. Pasmant, City
December 20, 2011
Page 6 of 8
and the City Council
this goal, the General Plan adopted goals and objectives and implementation
measures within the Economic Development Element of the General Plan to,
"actively encourage appropriate development of vacant land within core areas"
and that the "Redevelopment Agency shall actively market sites currently owned
by the City or the Agency."
b. In the General Plari's Land Use Element, it states that the City should provide for
a range of non-residential uses that will ensure a strong economic base for the
City. The Land Use Element designated two major commercial cores for intense
regional commercial activity. One core is the Central Business District in which
the General Plan states that has opportunities for development that are almost
unlimited and the Civic Center and proposed project is located within that Central
Business District Core. The General Plan identified the Civic Center to be an area
for intense regional commercial activity and further stated that rezoning land use
may be necessary to achieve such goals. As such, the proposed
medical/professional office development at the Civic Center is consistent with the
Land Use Element and the General Plan.
C. In the General PI a 's Economic Development Element, it states that sound local
economy is essential to the City's future vitality. It provides jobs for the labor
force, increase disposable incomes of residents, and assures the City the revenues,
which finance its jwide range of responsibilities. The Economic Development
Element stated goals and objectives as follows:
• In the 1986 General Plan, the City recognized that the City can no longer rely
upon new construction on vacant land and a growing population to generate
funds to provide the high level of public services familiar to West Covina
residents. As a result, the Economic Development Element states that through
effective economic development, West Covina must secure additional sources
of revenue to maintain its standard for quality of life.
• Develop and
opportunities,
• It is the ecc
into West C
Implementation
are:
• The City s
within core
• The Redevelc
by the City or
• The City shall
corporate and
the local economy in order to create new employment
new investment and strengthen the tax base of the City.
goal of West Covina to attract employment opportunities
to create a larger daytime population for the City.
the Economic Development Elements Goals and Objectives
actively encourage appropriate development of vacant land
s (Central Business District Core that project falls within).
-nt Agency shall actively market the sites currently owned
Agency.
and assemble development sites to accommodate major
1 users.
As such, the City's General Plan recognized the need to diversify land use and
employment base in which the proposed project would achieve.
14. The CDC has been pars
years and the proposed
West Covina's Redevelc
a. The 1994 Rf
Avenue/Civic
a redevelopment project at the Civic Center for the past 17
.opment is consistent with the Goals and Objectives of the
it Plan and CDC's Implementation Plans as follows:
pment Plan called for the development of the Cameron
area as an "office and business district. "
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Andrew G. Pasmant, City
December 20, 2011
Page 7 of 8
b. The Redevelopme
the West Covina
commercial and it
sales and property
replanning, recom
better utilization c
means to develop
goals of attracting
Gabriel Valley. "
C. The Civic Center s
site in the 2005-20
which states that "
and visibility, is lo,
Garvey Avenue Soi
commercial retail ,
Summary
In summary, the City has been
City's General Plan, the West C
Commission's 5-Year Implement
over 25 years (1986). In consider
the City is to attract the "corpora
land use within the Central Busing
and the City Council
Plan that was amended in 1996, further clarified the goals of
:development Project Area to "Encourage expansion of local
.ustrial opportunities which will create jobs and an expanded
ix base" and to "Introduce comprehensive planning, redesign,
-uction, and rehabilitation of uses to facilitate a higher and
land. The reference of "higher and better utilization of land".
igh-rise office towers consistent with the City's General Plan
orporations and being the "Headquarters City of the East San
has been specifically identified as a potential redevelopment
and 2010-2014 Redevelopment Implementation Plans,
'he City owned 7.8-acre site, with excellent freeway access
?d at the southeast corner of West Covina Parkway and
Possible developments could include a hotel, offices,
Vor restaurants. "
ursuing a project following the goals and Objectives of the
wina Redevelopment Plan and the Community Development
tion Plan. The goals and objectives of the plans date back to
ng all the goals and objectives, it is believed that the vision of
and "headquarters" which can only be done by intensifying
3s District core and developing high rise office buildings.
The City has already embarked on developing high-rise developments and a 4-story
medical/professional office development would be consistent with the efforts and visions already
bestowed by the forefathers of West Covina. It is not an easy process to create a General Plan
and develop the overall goals and objectives of where the City is to be in the future. It takes
numerous community meetings and significant community input to set the vision of the City. As
such, City has been following the goals and objectives currently set for the City's General Plan.
The proposed project is consistent with the General Plan, Redevelopment Plan and
Implementation Plan.
The proposed project will also have long-term benefits to the County, County library and library
patrons. The City parking lease to the County is set expire in 2023 and should the City not
renew the lease, the library will stand to lose 100-parking spaces. The County would need to
resolve the loss of parking at that time and City would have the right to utilize the 100-parking
space area (Lot A) as desired. In addition, the County would need to resolve the current parking
impacts of non -library users (i.e. spark and ride, other County departments and utilizing library
parking). CGM is proposing to resolve the County's future parking problem now by
constructing a new 129-space parking lot on County owned land with a gate and parking
validation system at no cost to thel City or County.
The proposed project will not only generate land sale proceeds of $700,000 (plus interest as
stated above), it will also create new diverse employment opportunities and result in West
Covina businesses serving and employing West Covina residents.
ALTERNATIVES:
The CDC Board has the following , alternatives:
1. Approve the Disposition and Development Agreement ("DDA") with CGM
Development, Inc. and authorize the City Manager, or his designee, to execute all
agreements necessary to implement the medical/professional office development project;
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Andrew G. Pasmant, City
December 20, 2011
Page 8 of 8
2. Deny the DDA;
3. Direct Staff to renegotiate
4. Provide staff with an
FISCAL IMPACT:
and the City Council
DDA under different terms and conditions; or
ve direction.
The City will realize $700,000 (plus interest) in land sale and parking easement proceeds. The
City will also receive new property tax revenue of approximately $183,000 (annual) and any
incremental sales tax generated by the project. In addition, 180 new employment opportunities
with increased trips to city will result in spin-off revenues to the City.
amm
Approved Via Telephon
Reviewed/ Arnold M. Alvare:
Approved by: City Attorney
Attachments: No. 1
— Site map al
No. 2
— Disposition
No. 3
— County of
No. 4
— County of
eviewed Mike Lee
er Assistant CDC Director
R
lasman proved by: topher J. C ung
rDirector
.d elevation plans
and Development Agreement ("DDA")
,os Angeles Construction Lease for Parking Lot D
,os Angeles Parking Lease Amendment No. 3
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Attachment No. I
Site Map and Elevation
z
W:
LL
ZW
civ089bkcc(3)(cIean).doc
civ089bkcc(3)(clean).doc
South View
civ089bkcc(3)(clean).doc
• i s
East View
West View
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ATTACHMENT NO.2
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
THE CITY OF WEST COVINA
and
CGM DEVELOPMENT, INC.
, 2011
CGM DDA Final Sen.DOC i
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TABLE OF CONTENTS
Page
DISPOSITION AND DEVELOPMENT AGREEMENT..........................................................I
SEC. 100 SUBJECT OF AGREEMENT.................................................................................1
Sec. 101 Purpose of Agreement .................................................. ................................. I
Sec. 102 Intentionally Deleted ...................................... .............................................. I
Sec. 103 The Property(ies)............................................................................:............I
Sec. 104 Parties to the Agreement..............................................................................2
Sec. 104.1 The City.......................................................................................................2
Sec. 104.2 The Developer..............................................................................................2
Sec. 104.3 Prohibition Against Transfer, Change in Ownership, Management
and Control of Developer.............................................................................2
Sec. 105 Representations and Warranties............................................:...................... 4
Sec. 105.1 City's Representations.......:..............................:.......................................... 4
Sec. 105.2 Developer's Representations.......................................................................5
SEC. 200 DISPOSITION OF THE OFFICE SITE PROPERTY AND
OFFICEPARKING LOT ............................................ :.......................................................6
Sec. 201 Sale, Purchase and Deposit..........................................................................6
Sec. 201.1 Liquidated Damages....................................................................................7
Sec.202 Escrow..........................................................................................................7
Sec. 202.1 Opening of Escrow..................................................................................7
Sec. 202.2 Close of Escrow...........................................................................................7
Sec. 202.3 Developer's Deposits in Escrow..................................................................8•
Sec. 202.4 City's Deposits in Escrow............................................................................8
Sec. 202.5 Escrow Instructions......................................................................................9
Sec. 202.6 Condition of Title and Title Insurance.......................................................10
Sec. 202.7 Conveyance of Title and Delivery of Possession......................................10
Sec: 202.8 Form of Deed.......................................:.....................................................I I
Sec. 202.9 Time and Place for Delivery of Deeds.......................................................I I
Sec: 202.10 Recordation of Deeds.............................:..................................................I I
Sec. 202.11 'faxes, Assessments and Prorations...........................................................11
Sec. 202.12 Evidence of Financing...............................................................................12
Sec. 206 Condition of the Office Site Property.........................................................13
Sec. 206.1 Developer Due Diligence............................................................................14
Sec. 207 Conditions Precedent to Close of Escrow..................................................15
Sec. 207.1 Developer's Conditions Precedent.............................................................15
Sec. 207:2 Failure of Developer's Conditions Precedent; Termination ......................16
Sec. 207.3 Conditions Precedent to City's Obligations...............................................16
Sec. 207.4 Failure of City's Conditions Precedent; Termination................................17
Sec. 208 Environmental Gompliance.......................................................................17
Sec. 209 Memorandum of DDA...............................................................................17
Sec. 210 Repurchase Option.....................................................................................17
CGM DDA Final Sen.DOC
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SEC. 300 DEVELOPMENT OF THE PROPERTIES .......... :................................................. 18
Sec. 301
Development of Improvements .........................
Sec. 301.1
Scope of Development ............................. ...................................................
18
Sec. 301.2
Office Parking Lot Declaration ....................................... I ..........................
19
Sec. 301.3
Employment Opportunities........................................................................20
Sec. 301.4
City Approval of Plans, Drawings and Related Documents ......................20
Sec. 301.5
Cost of Development.................................................................................21
Sec. 302
Schedule of Performance...........................................................................21
Sec. 303
Insurance; Indemnity .............................. :..................................................
21
Sec. 304
Environmental Indemnity..........................................................................22
Sec. 304.1
Environmental Release..............................................................................22
Sec. 304.2
Environmental Indemnity..........................................................................22
Sec. 304.3
Defense of Claims......................................................................................23
Sec.304A
Definitions..................................................................................................23
Sec. 305
Prevailing Wage.........................:.............................................................1.25
Sec. 306
City'and Other Governmental City Permits...............................................25
Sec. 307
Rights of Access........................................................................................25
Sec. 308
Local, State and Federal Laws...................................................................26
Sec. 309
Taxes, Assessments, Encumbrances and Liens.........................................26
SEC. 400 SECURITY FINANCING; RIGHTS OF HOLDERS...........................................26
Sec. 401
No Encumbrances Except Mortgages, Deeds of Trust, Sales and
Leases Back or Other Financing for Development....................................26
Sec. 402
Construction Financing..............................................................................27
Sec. 403
Intentionally Deleted..................................................................................27
Sec. 404
Intentionally Deleted..................................................................................27
Sec. 405
Holder Not Obligated to Construct Improvements ........................ :........... 27
Sec. 406
Notice of Default to Mortgage, Deed of Trust or Other Security
Interest Holders; Right to Cure..................................................................27
Sec. 407
Failure of Holder to Complete Improvements...........................................28
Sec. 408
Right of City to Cure Mortgage, Deed of Trust or Other Security
InterestDefault...........................................................................................28
Sec. 409
Rights of City to Satisfy Other Liens on the Property After Title
Passes.......................................................................................................:.28
SEC. 500 USE OF THE SITE AND COVENANTS.............................................................29
Sec. 501 Uses and Covenants...................................................................................29
Sec. 502 Obligation to Refrain from Discrimination................................................29
Sec. 503 Operating Covenants..................................................................................29
Sec. 504 Release of Construction Covenants...........................................................29
Sec. 505 Effect and Duration of Covenants..............................................................30
SEC. 600 DEFAULTS AND REMEDIES............................................................................31
Sec.601 Defaults—General.....................................................................................31
Sec. 602 Legal Actions.............................................................................................31
Sec. 602.1 Institution of Legal Actions.......................................................................31
Sec. 602.2 Applicable Law..........................................................................................31
CGM DDA Final Sen.DOC ii
Sec. 602.3
Acceptance of Service of Process..............................................................31
Sec, 603
Rights and Remedies Are Cumulative.......................................................32
Sec. 604
Remedies and Rights of Termination Prior to Conveyance .......................32
Sec. 604.1
Termination by Developer ..................... ....32
................................................
Sec. 604.2
Termination by City .................................... :................................... .............
32
Sec. 605
Remedies of City for Default by Developer After Passage of Title
and Prior to Completion of Construction...................................................33
Sec. 605.1
Termination and Damages.....................................:............:......................33
Sec. 605.2
Specific Performance..............:..................................................................33
Sec. 605.3
Right of Reentry........................................................................:................33
SEC. 70.0 GENERAL
PROVISIONS ....................... ....................:.:......................................
35
Sec. 701
Notices, Demands and Communications Between the Parties ..................35
Sec. 702
Conflicts of Interest....................................................................................35
Sec. 703
Enforced Delay; Extension of Times of Performance...............................35
Sec. 704
Non -Liability of Officials and Employees of the City.,
SEC, 800 EMPLOYMENT
OPPORTUNITIES ...... :.............................................................
36
Sec. 801
Job Opportunities Created by Developer...................................................36
SEC. 900 SPECIAL PROVISIONS ............................... .........................:..............................
36
See. 901
Submission of Documents to the City for Approval..................................36
Sec. 902
Amendments to this Agreement.................................................................37
Sec. 903
Operating Memoranda...............................................................................37
Sec. 904
Real Estate Commissions...........................................................................37
Sec. 905
Survivor Provisions....................................................................................37
Sec. 906
Reservation of Discretion ........................
Sec. 907
Costs and Attorneys' Fees............................................................. . ....... . ...3
8
SEC. 1000 ENTIRE AGREEMENT, WAIVERS.........:.........................................................38
SEC. 1100 TIME FOR ACCEPTANCE OF AGREEMENT..................................................38
CGM DDA Final Sen.DOC iii
LIST OF ATTACHMENTS
Page
ATTACHMENT NO. 1
SITE MAP OF PROPERTY ...........................'. .... ..""".... I ... I
ATTACHMENT NO. 2-A
OFFICE SITE LEGAL DESCRIPTION................................I
ATTACHMENT NO. ?-B
OFFICE PARKING, LOT DESCRIPTION ............................I
ATTACHMENT NO.2-C
AREA D PARKING LOT DESCRIPTION ...........................I
ATTACHMENT NO. 3
GRANT DEED......................................................•.................1
ATTACHMENT NO. 4
MEMORANDUM OF DDA.................................................. I
ATTACHMENT NO. 5
AREA D PARKING LOT SITE PLAN.................................I
ATTACHMENT NO. 6
ELEVATION .................... ............:....................... .................. 1.
ATTACHMENT NO. 7
SCOPE OF DEVELOPMENT...............................................1
ATTACHMENT NO. 8
SCHEDULE OF PERFORMANCE ....................................... I
ATTACHMENT NO. 9
RELEASE OF CONSTRUCTION COVENANTS ............... l
ATTACHMENT NO. 10
DECLARATION FOR OFFICE PARKING LOT................I
ATTACHMENT NO. 11
PROMISSORY NOTE.........................................................I
ATTACHMENT NO. 12
DEED OF TRUST ............................ .................................... I
CGM DDA Final Sen.DOC iv
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (hereinafter the "DDA" or
"Agreement") is dated for reference purposes only as of ,
2011 and* entered into by and between the CITY OF WEST COVINA ("City") and CGM
DEVELOPMENT, INC. (the "Developer"), collectively referred to herein as the Parties. The
effective. date of this Agreement shall be , the date of the City
Council meeting at which this Agreement is approved ("Effective Date"). The City and
Developer hereby agree as follows:
SEC. 100 SUBJECT OF AGREEMENT
Sec. 101 Purpose of Agreement
(1) The purpose of this Agreement is to effectuate the General Plan of the City of
West Covina by providing for disposition of approximately 28,200 square feet portion ("Office
Site") of 14.88-acre property ("Civic Center") owned by the City for the development of a four-
story approximately 55,000 square foot office building; the execution of a Parking Easement and
Declaration of Covenants, Conditions and Restrictions ("Declaration") for approximately
89,700 square feet of City -owned property for associated office development parking lot
("Office Parking Lot"); and the construction of a new library parking lot ("Area D Parking
Lot") approximately 62,270 square feet of a 7.93-acre property owned by the County for the
County library (hereinafter the "Project"). The Project is generally located along West Covina
Parkway and at the southeast corner of West Covina Parkway and Garvey Avenue South, West
Covina, California, as shown on the "SITE MAP" attached hereto as Attachment No. 1.
(2) The sale of the City -owned Property by City to Developer, the execution of the
Declaration and Developer's completion and operation of the Project in accordance with this
Agreement is in the vital and best interest of the City, and in accord with the public purposes and
provisions of the General Plan and applicable state and local laws and requirements. The Project
will be a benefit to the citizens of the City. This Agreement is entered into for the purpose of
development and not for speculation in land holding.
(3) As part of the Project, the Developer will construct a new Area D Parking Lot on
County property at no cost to the City or County. This Area D Parking Lot will replace the
existing library parking lot of which the lease is scheduled to expire in the year 2023. The
Project will further benefit the citizens of the City and the surrounding area as permanent library
parking lot will be constructed for perpetual public access to the County library.
Sec. 102 Intentionally Deleted.
Sec. 103 The Property(ies)
The property(ies) ("Property(ies)" or "Site(s)") consist of the following:
(1) The disposition of approximately 28,200 square feet of City -owned land
(hereinafter the "Office Site") for the development of an approximately 55,000
CGM DDA Final Sen.DOC
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square feet office building at the southeast corner of West Covina Parkway
Avenue. The Office Site is more specifically described on Attachment No. 2-A,
attached hereto and incorporated herein by this reference.
(2). The Construction of a new approximately 89,700 square foot parking lot
(hereinafter the "Office Parking Lot") on City -owned land (more specifically
described on Attachment No. 2-B attached hereto and incorporated herein by this
reference) and the execution of the Declaration with the Developer for the Office
Parking Lot construction, operation and maintenance; and
(3) The construction of a new, approximately 62,270 square foot, parking lot
(hereinafter "Area D Parking Lot") on Los Angeles County owned land located
along West Covina Parkway (more specifically described on Attachment No. 2-
C attached hereto -and incorporated herein by this reference) in accordance with
the terms of the Ground Lease and Agreement for Parking Lot Construction
between the County of Los Angeles and the City of West Covina ("County
Ground Lease").
Sec. 104 Parties to the Agreement
Sec, 104.1 The City
(1) The City is a public body, corporate and politic, exercising governmental
functions and powers and organized and existing under the laws of the State of California. The
City's address for service of process is:
Andrew Pasmant, City Manager
1444 West Garvey Avenue
West Covina, California 91790
Phone: (626) 939-8401
Fax: (626) 939-8406
(2) The City, as used in this Agreement, includes the City of West Covina and
any assignee of, or successor to, its rights, powers and responsibilities.
Sec. 104.2 The Developer
(1) The Developer, as used herein, refers to CGM Development, Inc., a
California corporation or its members. Developer's principal office and agent for service of
process is:
CGM Development, Inc.
17528 East Rowland Street
City of Industry, California 91748
Phone: (626) 913-8939
Fax: (626) 913-1911
(2) Whenever the term Developer is used herein, such term shall include any
nominee, assignee or successor, in interest, individually and collectively as herein provided,
subject to the prohibitions set forth in Section 104.3 below.
Sec. 104.3 Prohibition Against Transfer Change in Ownership Management
CGM DDA Final Sen.DOC
and Control of Developer.
(1) ` The qualifications and identity of. Developer and its managing members
are of particular concern to the City. 'It is because of those qualifications and identity that the
City has entered into this Agreement with Developer. No voluntary successor in interest of
Developer shall acquire any rights or powers under this Agreement, except as expressly set forth
herein.
(2) The Developer shall promptly notify. the ,City of any and all changes
whatsoever in the identity of the parties in control of Developer or the degree thereof, of which it
or any of its officers have been notified or otherwise have knowledge or information. City must
approve any such changes in writing and shall not unreasonably withhold such approval. If
Developer allows any significant change (voluntary or involuntary) in membership,
management, or control of.Developer, prior to issuance of a Release of Construction Covenants
for the Properties without the approval of City, than this Agreement may be terminated by the
City.
(3) The Developer may not assign all or any part of this Agreement without
the prior written approval of the City. If Developer seeks an assignment, Developer shall
promptly notify City in writing of the proposed assignment. Any such proposed assignment
shall be subject to the terms of section 104.3(5) of this Agreement.
(4) Prior to. recordation by the City of a Release of Construction Covenants
for construction of the Properties, Developer shall not, except as may be required by a tenant for
the development of the Improvements and as permitted by this Agreement, make any total or
partial sale, transfer, conveyance, or assign the whole or any part of the Properties or the
buildings or structures or any Parcel in the Properties, excluding necessary financing transactions
as permitted in this agreement, without the prior written approval of the City which shall not be
unreasonably withheld. This prohibition shall not be deemed to prevent the granting of
temporary easements or permits to facilitate development of the Properties.
(5). Except as expressly hereinafter provided, any such proposed transferee,
for which the City's consent is required hereunder, shall have the qualifications and necessary
financial resources, as may be reasonably determined by City, to fulfill the obligations
undertaken by Developer in this Agreement. Any such proposed transferee, for which consent
City approval is needed shall expressly assume all obligations of Developer under this
Agreement, including the loan obligation, and agree to be subject to all conditions and
restrictions under this Agreement to which Developer is subject.. Any such transfer shall be
made by an instrument in writing satisfactory to City. All instruments and other legal documents
proposed to effect any such transfer, shall be submitted to City for review. If approved by the
City, its approval shall be indicated to Developer in writing.
(6) In the absence of a specific written agreement by the City, no such
transfer, assigmment or approval by the City shall be' deemed to relieve Developer or any other
party from any obligations under this Agreement until completion of construction and resale of
the particular Properties.
(7) Notwithstanding any other provision in this Section 104.3, Developer shall
have the right to assign this Agreement or the Properties, or any rights therein, to a limited
CGM DDA Final Sen.DOC
liability company or any other entity which is controlled and owned by a majority interest by
Developer.
(8) � After issuance of the Release of Construction Covenants, all of the
covenants or conditions set forth in this Section shall terminate, except those provisions which
shall survive and are set forth in the Grant Deed.
Sec. 105 Representations and Warranties
1. The City and Developer _acknowledge that neither the City nor Developer is
relying upon any representations or warranties other than those set. out in this Agreement, and
that the representations and warranties set out in this Agreement constitute all of the
representations and warranties of the City and Developer in regard to this transaction.
Sec. 105.1 Cityls Representations
The City represents and warrants as follows:
(1) Except as disclosed herein, there are no physical or legal facts,
circumstances, problems or governmental actions known to City with respect to the Property
which, if disclosed to Developer, would materially or adversely impact decisions regarding
acquisition and development of the Properties. City acknowledges that City does not have
control of the County parking lot site. City shall enterinto such agreements with County as
necessary to allow Developer to proceed with Developer's rights and obligations provided for
herein; and
(2) 'The City has no knowledge of any violations of governmental codes,
ordinances, regulations or orders with respect to the Properties.
(3) City has duly authorized, executed and delivered this Agreement and City
has or will authorize, execute and deliver, within the times set forth therefore in the Schedule of
Performance (Attachment No. 8), any and all other agreements and documents required to be
authorized, executed and delivered by City in order to carry out, give effect to and consummate
the transaction contemplated by this Agreement.
(4) City has performed all acts necessary to validly enter into this Agreement.
This Agreement is valid and binding agreement enforceable against the City.
(5) City is not relying upon any representations or warranties by Developer
other than those expressly set forth in this Agreement and the representations and warranties of
Developer set forth herein constitute all of the representations and warranties of Developer in
regard to this transaction.
(6) . City has not entered into any agreements which will adversely affect the
title to the Properties or Developer's right to construct any phase of the Project, as provided in
this Agreement.
-(7) City represents and warrants to* the Developer that there is no suit, legal
action, administrative arbitration or other proceeding or governmental investigation process
which has been served upon City or, which to City's best knowledge, is otherwise pending or
threatened against City in which any party is making or has made 'a claim or defense that, if
sustained, would materially and adversely affect the performance of City under this Agreement
CGM DDA Final Sen.DOC 4
or materially and adversely interfere with the ability of City to consummate the transactions
contemplated herein.
Each of the foregoing items (1) through (7) shall be deemed to be an on -going
representation and warranty -and shall survive in perpetuity. The City shall advise Developer in
writing, if there is any change pertaining to any matters set forth or referenced in the foregoing
items (1) through (7).
Sec. 105.2 Developer's Representations
Developer represents and warrants to the City that:
(1) Within one hundred eighty days- (180) days of the Effective Date of this
Agreement, or within twenty (20) days after giving of the Notice of Commencement pursuant to
Section 23 of the County Ground Lease, whichever is later, Developer will commence
development of the Properties and will diligently pursue completion of the Project in accordance
with the Schedule of Performance set forth in Attachment No. 8, attached hereto.
(2) Developer has duly authorized, Iexecuted and delivered this Agreement
and Developer has or will authorize, execute and deliver; within the times set forth therefore in
the Schedule of Performance (Attachment No. 8), any and all other agreements and documents
required to be authorized, executed and delivered by Developer in order to carry out, give effect
to and consummate the transaction contemplated by this Agreement.
(3) Neither this Agreement nor anything provided to be done hereunder by
Developer violates or shall violate any contract, agreement, or instrument to which Developer is
a party.
(4) Developer is duly organized and validly existing as a California
corporation pursuant to the laws of the State of California and has been duly qualified to conduct
its business in California, has full power and authority to own property and conduct its business
as provided for in this Agreement, and has full power and authority to enter into this Agreement.
(5) This. Agreement is a valid and binding agreement enforceable against
Developer in accordance with its terms, subject to laws relating to bankruptcy and creditor's
rights and generally applicable equitable principles.'
(6)Developer is not relying upon any representations or warranties by City
other than those expressly set forth in this Agreement and the representations and warranties of
City set forth herein constitute all of the representations and warranties of City in regard to this
transaction.
(7) Developer has not entered into any agreements which will adversely affect
the title to the Properties or Developer's right to construct any phase of the Project, as provided
in this Agreement.
(8) Developer represents and warrants to the City that there is no suit, legal
action, adininistrative arbitration or other proceeding or governmental investigation process
which has been served upon Developer or, which to Developer's best knowledge, is otherwise
pending or threatened against Developer in which any party is making or has made a claim or
defense that, if sustained, would materially and adversely affect the performance of Developer
CCM DDA final Sen.DOC
i 1 •
under this Agreement or materially and adversely interfere with the ability of Developer to
consummate the transactions contemplated herein.
(9) Developer possesses adequate financial resources and has the skill and
experience to develop and operate the Project.
(10) Developer is entering into this Agreement for the purpose of developing
the Properties and not for speculation in land holding or land banking. In this regard, Developer
recognizes the importance of the development of the Project on the Properties to the general
welfare of the residents of the City, and the fact that the qualifications and identity of Developer
are of particular concern to City and that it is because of such qualifications and identity that City
is entering into this Agreement with Developer.
Each of the foregoing items (1) through (10) shall be deemed to be an on -going
representation and warranty. Developer shall advise the City in writing if there is any change
pertaining to any matters set forth or referenced in the, foregoing items (1) through (10).
SEC. 200 DISPOSITION OF THE OFFICE SITE PROPERTY AND OFFICE PARKING
LOT
Sec..201 Sale Purchase and Deposit
(1) The City agrees to sell the approximately 28,200 square feet Office Site property
and to execute the Declarationfor the Office Parking Lot to the Developer and the Developer
agrees to purchase the approximately 28,200 square feet Office Site property and execute the
Declaration for the Office Parking Lot from the City. Prior to the transfer of the Office Site
property from City to Developer, Developer shall prove to the. satisfaction of City that it has
sufficient funds (such as a commitment letter for funding from a recognized lending institution),
to reasonably accomplish the development of the Office Site Property in accordance with this
Agreement. Developer shall accept such transfer of the Office Site Property from City, and as
consideration for such transfers, shall pay to City the purchase price of Seven Hundred Thousand
Dollars ($700,000) (the "Purchase Price"),• which is the fair market value of the Office Site
Property and the interest in the Declaration for the Office Parking Lot property. The Purchase
Price shall be paid as follows:
(a) Upon the Opening of Escrow Developer shall deposit the sum of Fifty
Thousand Dollars ($50,000) as a good faith deposit ("Developer's Escrow Deposit").
(b) At least two business days before the Close of Escrow Developer shall
deposit in Escrow a promissory note representing eighty (80) percent of the Purchase Price in the
amount of Five Hundred Sixty Thousand Dollars ($560,000) ("Promissory Note"). The
Promissory Note shall be in the form attached hereto as Attachment No. 11. The Promissory
Note shall become all due and payable six (6) months from the Close of Escrow and shall bear
interest at the rate of seven (7) percent per annum. Developer may prepay the Promissory Note
at any time prior to the due date at no cost and with no penalty. The Promissory Note shall be
secured by a Deed of Trust on the Office Site in favor. of City in the form attached hereto as
Attachment No. 12.
(c) Developer shall deposit in Escrow the balance of the Purchase Price two
business days prior to Close of Escrow.
CGM DDA Final sen.DOC
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Sec. 201.1 Liquidated Damages
If through default Developer fails or refuses to complete the transfer of title to the Office
.Site Property, to which City is prepared to deliver insurable title in accordance with the
terms and conditions of this Agreement, this Agreement may be terminated at the sole
option of City, and the parties agree that City shall draw down Developer's Escrow Deposit
as liquidated damages in an amount of Fifty Thousand Dollars ($50,000) which sum the
Parties agree is a reasonable sum considering all of the circumstances existing on the date
of this Agreement, including the relationship of the sum to the range of harm to City that
reasonably could be anticipated and the anticipation that proof of actual damages would be
costly or inconvenient. In placing their initials at the place provided, each Party
specifically confirms the accuracy of the statements made above and the fact that each
Party was represented by counsel who explained the consequences of this liquidated
damages provision at the time this Agreement was made. This paragraph shall not be
construed to grant Developer the option to purchase the Office Site Property or in the
alternative to pay the liquidated damages.
Developer's initial here: _ - City's initial here:
Sec.202 Escrow
Sec. 202.1 Opening of Escrow
(1) The City and Developer agree to open an escrow (the "Escrow") with
Stewart Title of California, Inc., escrow officer Enid Yee at 525 North Brand Blvd., Glendale,
California 91203; (818) 500-5698 ("Escrow Agent") within fifteen (15) business days after the
execution of this Agreement. This Agreement shall constitute the joint escrow instructions
between the City and Developer, and a duplicate original to this Agreement shall be delivered to
the Escrow Agent upon the opening of the escrow (the "Opening of Escrow"). The City and
Developer shall provide such additional escrow instructions as shall be necessary and consistent
with this Agreement. The Escrow Agent is hereby empowered to act under this Agreement and,
upon indicating its acceptance of the provisions of this Section 202 in writing delivered to City
and to Developer within five (5) days after the opening of the escrow; shall carry out its duties as
Escrow Agent hereunder. In the event of any inconsistency between any escrow instructions and
this Agreement, this Agreement shall control, notwithstanding that either party may have
intentionally or inadvertently executed such inconsistent instructions. Notwithstanding the
foregoing, upon discovery of the inconsistency, .the Parties may agree in writing to modify these
instructions to address said inconsistency.
Sec. 202.2 Close of Escrow
(1) The "Close of Escrow" or the "Closing" shall be not later than one
hundred eighty (180) days from the Opening of Escrow or within ten (10) days after the giving
of the Notice of Commencement pursuant to Section 2.13 of the County Ground Lease,
whichever is later. The Escrow may be extended for any periods of time with the mutual
written agreement of the City and Developer, delivered to Escrow. The City and Developer
CGM DDA Final Sen.DOC
agree to deliver all documents necessary for the conveyance of title in conformity with this
Agreement.
Sec. 202.3 Developer's Deposits in Escrow
(1) Developer shall pay/deliver into escrow, to the Escrow Agent, the
following fees, charges and costs and documents at the time they are required to place the
Escrow in a condition to close:
(a) One half ('/2) of the escrow fee;
(b) One half ('/2) of the recording fees;
(c) One half (%) of the notary fees;
(d) Any State, County or City documentary stamps or transfer tax;
(e) The Developer's Escrow Deposit; and
(f) The balance of the Purchase Price.
(g) 'The Promissory Note fully executed.
Sec. 202.4 City's Deposits in Escrow
(1) The City shall pay/deliver into escrow, to the Escrow Agent, the following
fees, charges and costs and documents at the time they are required to place the Escrow in a
condition to close:
(a) One half ('/2) of the escrow fee;
(b) One half ('/2) of the recording fees;
(c). One half (%2) of the notary fees;
- (d) Ad Valorem taxes, if any, upon the Office Site Property, pursuant
to Section 205.12 of this Agreement;
(e) The premium for the CLTA Title Insurance Policy on the Office
Site Property and the Office Parking Lot property. Developer may obtain extended coverage
title insurance, ALTA coverage, or surveys at the cost of Developer;
(f) Costs necessary to place the title in condition for conveyance
required by the provisions of this Agreement;
(g) Grant Deed for the Office Site Property and the costs of drawing
the deeds; ,
(h) Executed Declaration for the Office Parking Lot in substantially
the form attached hereto as Attachment No. 10.
CGM DDA Final Sen.DOC 8
(i) Executed Memorandum of DDA, in substantially the form attached
hereto as Attachment No. 4, to be recorded at close of escrow.
Sec. 202.5 Escrow Instructions
(1) The Escrow Agent is authorized to:
(a) Pay and charge Developer and City for any fees, charges and costs
payable under Sections 202.3 and 202.4 of this Agreement. Before such payments are made, the
Escrow Agent shall notify City and Developer of such fees, charges and costs. City and
Developer will close escrow in accordance with Section 202.2 unless a sooner or later date or
termination of this Agreement is mutually agreed upon by each of the Parties to this Agreement.
(b) Disburse funds and deliver the deeds, and other documents to the
Parties entitled thereto, when the conditions of the escrow have been fulfilled by City and
Developer. The Purchase Price shall not be disbursed by the Escrow Agent unless and until it
has recorded the Grant Deed and has delivered to .the appropriate party a title insurance policy
insuring title, acceptable to Developer and the lender, and conforming to the requirements of
Section 202.10 of this Agreement.
(c) Record any instrument delivered through this escrow, if necessary
or proper to vest title in Developer, in accordance with the terms and provisions of this
Agreement.
(d) Cause to be prepared on behalf of City and delivered to Developer
such disclosure documents and reports concerning flood hazards, earthquake, fire and wildlands
as may be required by California Government Code Sections 8589.3, 8589.4 and 51183.5 and
California Public Resources Code Sections 2621.9, 2694 and 4136.
(2) All funds received into escrow shall be deposited in an interest bearing
account by the Escrow Agent with other escrow funds of the Escrow Agent in a general escrow
account or accounts with any state or national bank doing business in the State of California.
Such funds may be transferred to any other such general escrow account or accounts. All
disbursements shall be made on the basis of a 30-day month. All interest earned on funds
received into escrow as a result of this Agreement shall accrue to the benefit of Developer and
may be, at the direction of Developer, applied toward the Purchase Price.
(3) The Escrow Agent shall not be obligated to return any such money, papers
or documents except upon the written instructions of both City and Developer, or until the party
entitled thereto has been determined by a final decision of a court of competent jurisdiction.
(4) Any amendment of these escrow instructions shall be. in writing and
signed by both City and Developer. At the time of any amenchnent, the Escrow Agent shall
agree to carry out its duties as Escrow Agent under such amendment.
(5) All communication from the Escrow Agent to the City or Developer shall
be directed to the addressees in the manner established in Sections 104.1 and 104.2 of this
Agreement. Nothing in this Section 202.5 shall be construed to impair or affect the rights or
obligations of the City or Developer as to specific performance.
CGM DDA Final Sen.DOC
Sec. 202.6 Condition of Title and Title Insurance
(1) The conveyances of the Office Site Property shall be by fee simple,
merchantable and insurable title free and clear of all recorded liens, encumbrances, covenants,
assessments, easements, leases and taxes except as are consistent with this Agreement and
approved by the Developer ("Approved Title Condition").
(2) Within ten (10) days of the opening of the escrow, City shall deliver to the
Developer a preliminary title report for a CLTA Owner's .Title Insurance Policy ("Report")
covering the City parcel which includes .the Office Site Property and issued by a title company
acceptable to the Parties (the "Title Company"), together with readable and legible copies of all
instruments, if any, referred to in the Report as exceptions to title. Developer shall, in addition to
all other approvals, have the right to review and accept the assessments, and any liens or other
matters affecting title, whether or not of record, including all matters affecting title that are
incorporated in this Agreement for the Office Site by reference. Within thirty (30) days of
opening of Escrow, Developer shall give written notice to City of any defects in or objections to
the title as so evidenced. The City shall, within twenty (20) days after written notice from
Developer of any defects in title, or such reasonable time as may be extended by Developer,
exert its best efforts to clear the title of the defects and objections for the Office Site so specified.
If City is unable to clear such defects or objections within such twenty (20) day period, it shall
give written notice to Developer within fifteen (15) days following the twenty (20) day period
that City elects to terminate this DDA. Developer shall then have 'fifteen (15) days to give
written notice to City that Developer will accept the defects or objections which City was unable
to clear. If Developer does not give City such notice of acceptance of defects or objections
within fifteen (15) days, then this DDA and the Escrow shall be terminated. Upon such
termination Developer shall be entitled to the return of all of its deposits.
(3) City shall pay the cost of Title Insurance. Developer may obtain extended
coverage title insurance, ALTA coverage, or surveys at the cost of Developer.
(4) Concurrent with the recording of . the Grant Deed conveying title to the
Office Site Property to Developer, the Title Company shall, if requested by Developer, provide
Developer with an endorsement to insure the amount of Developer's estimated construction costs
for improvements to be constructed upon the Property. Developer shall pay the entire premium
for any such additional title insurance coverage.
Sec. 202.7 Conveyance of Title and Delivery of Possession
(1) Subject to any mutually agreed upon extensions of time, conveyance of
title and delivery of exclusive possession of the Office Site Property to Developer shall be
completed on or prior to the date for close of escrow. City and Developer agree to perform all
acts necessary to convey title in sufficient time for title to be conveyed in accordance with the
foregoing provisions. If prior to the Closing, all or part of the Property should be condemned,
by governmental- or other lawful authority, other than the City, this Agreement shall be
terminated.
(2) The Developer acknowledges that the Office Site is currently undivided
and a portion of a larger 14.88-acre City -owned land referred to as the West Covina Civic
Center. As part of this Agreement, the Developer shall subdivide the approximately 28,200
square feet Office Site and complete recordation prior to conveyance of title. The Developer
CGM DDA Final Sen.DOC 10
acknowledges that the Office Site may be conveyed by metes and bounds by the City and the
Developer agrees to record a Tract Map to clarify subdivision of parcels. City shall cooperate
and assist Developer in all actions reasonably necessary to effectuate this subdivision of land.
Sec. 202.8 Form of Deed
(1) Subject to Section 202.7, the City shall convey the title to Developer as
follows:
(a) In the condition provided in Section 202.6 of this Agreement;
(b) By Grant Deed to be prepared subsequent to the subdivision as
stated in Section 202.7(2) of this Agreement;
(c) After review and approval of the title report submitted to Escrow,
consistent with the terms of this Agreement, which is mutually satisfactory to the Title Company,
the Developer, the Developer's Lender and the City; and
(d) After the Title Company agrees to insure the title herein.
Sec. 202.9 Time and Place for Delivery of Deeds
(1) The City shall timely and properly execute, acknowledge and deliver to
Escrow a Grant Deed(s) to the Office Site Property with the requirements set forth in Section
205.8 of this Agreement, which is substantially in the form as the "Grant Deed" attached hereto
as Attachment No. 3. Subject to any mutually agreed upon extension of time, the City shall
deposit the Grant Deed with the Escrow Agent at least two (2) days before close of Escrow.
Sec. 202.10 Recordation of Deeds
(1) Title shall be transferred to Developer by Grant Deed upon or prior to the
date for conveyance thereof, provided that the Escrow Agent shall have notified the parties in
writing that the deed, properly executed and acknowledged, has been delivered to the Escrow
Agent, and that title is in the condition to be conveyed in conformity with the provisions of
Section 205.9 of this Agreement and that the parties have complied with all of their obligations
and fulfilled all of their responsibilities to be performed by them prior to the conveyance of title.
The Escrow Agent shall file the deed for recordation among the land records in the office of the
County Recorder. for Los Angeles County.
Sec. 202.11 Taxes, Assessments and Prorations
(1) Any ad valorem taxes and/or assessments on the Office Site Property or
taxes imposed upon this Agreement, or any rights thereunder levied, assessed or imposed for any
period occurring prior to Close of Escrow, shall be borne by City. All ad valorem taxes and
assessments levied or imposed on the Office Site Property for any period occurring after Close of
Escrow shall be paid by Developer.
(2) Any taxes, assessments, fees or charges which cover a period before and
after the Close of Escrow shall be prorated. Prorations shall be made as of the Close of Escrow.
All prorations shall be made on the basis of a thirty (30) day month and shall be credited to City
if it is entitled thereto, or shall be credited against the cash portion of the Purchase Price if
Developer is entitled thereto. Such prorations shall be made by Escrow Agent on the basis of a
CGM DDA Final Sen.DOC I I
statement(s) approved by Developer and City and deposited into the Escrow prior to the Close of
Escrow.
(3) Supplemental taxes, fees or charges assessed or imposed on the Office Site
Property after the Close of Escrow, but which are imposed for a period prior to Close of Escrow
shall be prorated between City and Developer as provided in subparagraphs (1) and (2) of this
section 205.11.
Sec. 202.12 Evidence of Financing
(1) Within the time set forth in the Schedule of Performance, attached hereto
as Attachment No. 8, Developer shall exercise commercially reasonable efforts to obtain
sufficient equity capital and debt financing on terms reasonably satisfactory to Developer as
necessary to undertake acquisition of the Office Site Property and development of the Project
thereon, as applicable. Contingent upon its ability to obtain such equity and debt financing within
the time set forth in the Schedule of Performance, Developer shall submit such evidence of
financing to the City Manager, or his designee for approval, which shall not be unreasonably
withheld. Such evidence of financing shall include, as applicable, the following: (i) a copy of the
loan documents (in substantially their final form) to be obtained by Developer from one or more
financial institutions for the mortgage loan or loans for financing to acquire•the Site and develop the
Project; and/or (ii) written documentation and evidence from the chief financial officer of Developer
(or such other person serving in the most comparable capacity for Developer) that Developer has
sufficient funds for such acquisition and construction and that such fiords have been committed to
the Project; and/or (iii) such other documentation reasonably satisfactory to City Manager, or his
designee as evidence of other sources of capital sufficient to demonstrate that Developer has
adequate funds to cover the difference between the total acquisition and development cost for the
Project less financing authorized by those loans referred to in clause (i) hereinabove.
(2) City Manager, or his designee shall approve or disapprove Developer's
evidence of financial capability and commitments within fifteen (15) days after receipt of a
complete submittal. Approval shall not be unreasonably withheld, delayed, or conditioned. If
City Manager, or his designee shall disapprove any such evidence of financing, he or she shall do
so by delivery of written notice to Developer stating the reasons for such disapproval and
describing what additional information is required to obtain City Manager's reasonable approval.
Upon receipt of the City Manager, or his designee's disapproval of Developer's -proposed
financing, Developer shall exercise commercially reasonable efforts to promptly obtain and
submit new evidence of financing or terminate this Agreement as provided in Section 604.1, and
in the event Developer elects to seek new financing the time for Developer to do so and all
provisions of the Schedule of Performance related to the applicable Closing. automatically shall
be extended until Developer obtains the City Manager, or his designee's approval of Developer's
evidence of financing or by one hundred twenty (120) days, whichever occurs first. The City
Manager, or his designee shall approve or disapprove any such new evidence of financing in the
same manner and within the same times established in this Section 205.12 for Developer's initial
submittal.
If any portion of Developer's financing consists of secured third party loans, Developer
shall close the approved financing at the Closing. The mortgage, deed of trust, or other form of
conveyance for financing required for Developer's acquisition of the Site and its development of
CGM DDA Final Sen.DOC 12
the Project, including any extension; modification, renewal, or refinancing of any such mortgage,
deed of trust, or other form of conveyance for financing, is referred to herein as a "Developer Deed
of Trust."
Sec. 203-205 Intentionally Left Blank
Sec. 206 Condition of the Office Site Property
. (1). Except as provided in this Agreement, the Office Site Property shall be conveyed
and delivered to Developer in an "as -is" physical condition. BUYER SPECIFICALLY
ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND BUYER IS
PURCHASING THE SALE PROPERTY ON AN "AS IS WITH ALL FAULTS" BASIS AND
THAT, EXCEPT _AS EXPRESSLY SET FORTH IN PARAGRAPH 105.1, BUYER IS NOT
RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER, ITS AGENTS OR BROKER AS
TO ANY MATTERS CONCERNING THE SALE PROPERTY, INCLUDING WITHOUT
LIMITATION:
(a) The quality, nature, adequacy and physical condition and aspects of the
Office Site Property, including, but not limited to, sewage, and utility systems, the square
footage within the Property.
(b) The quality, nature, adequacy, and physical condition of soils, geology and
any groundwater.
(c) The existence, quality, nature,. adequacy and physical condition of utilities
serving the. Property.
(d) The development potential of the Office Site Property, and the Property's
use, habitability, merchantability, or fitness, or the suitability; value or adequacy of the Property
for any particular purpose.
(e) The zoning or other legal status of the Office Site Property or any other
public or private restrictions on use of the Property.
(f) The compliance of the Office Site Property with any applicable codes,
laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any
governmental or quasi -governmental, entity or of any other person or entity_ (including, without
limitation, the Americans with Disabilities Act).,
(g) The presence of hazardous materials on, under or about the Office Site
Property or the adjoining or neighboring Property.
(h) The quality of any labor and materials used in any Improvements.
(i) The' economics of the operation of the Office Site Property.
(2) City is not in any way responsible for any demolition or physical site clearance of
said Office Site Property. Developer is solely responsible for the relocation of utilities and
easements as necessary on any parcel within the Property. .
CGM DDA Final Sen.DOC 13
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Sec. 206.1 Developer Due Diligence
(1) Developer will have a ninety (90) day "Due Diligence Period"
commencing upon opening of escrow to conduct any investigation of the Office Site Property
and the Project.
(2) During the Due Diligence Period Developer is invited, urged, and
cautioned to conduct, at Developer's expense, such investigations, inspections, surveys, plans,
and tests of the Office Site Property, including, without implied limitation, soils, groundwater,
wells, percolation, geology, environmental, drainage, engineering and utilities investigations,
inspections, surveys, plans, and tests (collectively, "Investigations"), as Developer determines,
in Developer's sole discretion, are required to determine the suitability of the Office Site
Property for Developer's intended use and development. Such Investigations shall be conducted
at the sole cost and expense of Developer. Developer shall hold harmless, indemnify and defend
City against all costs, damages, liabilities or expenses, including mechanics lien claims arising
out of Developer's activities on the Office Site Property.
(3) City hereby grants to Developer, its employees, representatives, agents
and independent contractors, a license to enter the Office Site Property for purposes of
conducting such Investigations during normal business hours. Developer shall provide City
twenty-four (24) hours notice prior to entering the Office Site Property.
(4) In the event that Developer exercises this right of entry, Developer shall
comply with all applicable laws and obtain all permits which may be required with respect to its
investigations and testing. Developer further agrees to indemnify, defend, and hold harmless City
and the Office Site Property from and against any and all claims, damages,. liabilities, and losses
arising from such activities of Developer or its employees or agents, and from and against all
mechanics', materialmens',. and other liens resulting from any such conduct. Developer shall
restore the Office Site Property as nearly as possible to its condition existing immediately prior to
any such entry by or on behalf of Developer. Prior to entry upon the Site Developer shall obtain
insurance covering Developer's indemnity, hold harmless, and defense obligations to City pursuant
to this paragraph. Prior to entry upon the Office Site Property for such Investigations Developer
shall furnish to City duplicates of appropriate certificates of commercial general liability
insurance in the amount of at least One Million Dollars ($1,000,000) combined single limit for
bodily injury and property damage and Two Million Dollars ($2,000,000) general aggregate
limit, naming City as an additional insured, insuring Developer's obligations and responsibilities
under this paragraph (4). Developer shall maintain each such policy in effect until the Close of
Escrow.
(5) Developer shall notify City in writing of any objections as to the condition
of the Office Site Property, by delivering such written objection to escrow within the Due
Diligence Period. City shall then have ten (10) days to correct the objection to the reasonable
satisfaction of Developer, or give written notice to Developer through escrow that City elects to
terminate the DDA. If City elects to terminate the DDA, Developer shall have ten (10) days to
give written notice to City through escrow that Developer waives the objection or terminates the
DDA.
CGM DDA Final Sen.DOC 14
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Sec. 207 Conditions Precedent to Close of Escrow
Sec. 207.1 Developer's Conditions Precedent
(1) Notwithstanding any other provision set forth in this Agreement to the
contrary, Developer's obligation to close the Escrow for the Office Site Property and its obligation
to accept conveyance of the Property from City shall be subject to satisfaction or Developer's
written and signed waiver . of each of the following conditions precedent (collectively, the
"Developer's Conditions Precedent"):
(a) At the Closing, the Title Company shall be irrevocably committed
to issue the Title Policy that is required to be paid for by City pursuant to Section 202.6 of this
Agreement insuring fee title to the Office Site Property as being vested in Developer in the
Approved Title Condition;
(b) City shall have tendered possession of the Office Site to Developer
in the condition required pursuant to Section 206 of this Agreement;
(c) Prior to the expiration of the applicable Due Diligence Period,
Developer shall have approved all Due Diligence matters or have waived any objections in
writing;
(d) Developer shall have obtained entitlement approvals for the Office
Site, Office Parking Lot, and Area D Parking Lot projects;
(e) Developer shall have been able to obtain and the City Manager
shall have approved Developer's evidence of financing commitments, as provided for in Section
202.12 of this Agreement;
(f) City shall have provided evidence of site control through a lease
with the County that Developer is entitled and authorized to enter on the Area D Parking Lot and
take all actions required by and necessary to satisfy the terms and conditions of this Agreement;
(g) The subdivision required by Section 202.7 has been completed;
(h) The City Council finds, pursuant. -to Government Code Section
65402, that the Project is consistent with the City's General Plan;.
(i) . Developer approves the Escrow Holder's final estimated
closing/settlement statement;
0) City and Developer shall have entered into a lease for the Office
Parking Lot property on terms agreeable to both Parties;
(i) Escrow Agent holds and will deliver to Developer the instruments
and funds accruing to Developer pursuant to this Agreement with respect to the applicable
Escrow; and
(j) All representations and warranties by City in this Agreement shall
be true on and as of the applicable Closing as though made at that time. All covenants of City
with respect to the Site which are required to be performed prior to the applicable Closing shall
have been performed by such date.
CGM DDA Final Sen.DOC 15
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Sec. 207.2 Failure of Developer's Conditions Precedent-, Termination
The failure of any of the Developer's Conditions Precedent set forth in Section 207.1 shall
not be a bar to the Closing nor an excuse for Developer's complete perfonnance under this
Agreement if the failure of the condition is due in whole or in part to the fault of Developer.
Developer shall cooperate with City and the Escrow Agent to attempt to satisfy each and every one
of the Developer's. Conditions Precedent. In .the event, however, that Developer has fully
performed its obligations set forth in this Agreement but any of the Developer's Conditions
Precedent is not satisfied or waived in a writing signed by Developer prior to the expiration of the
applicable period for satisfaction or waiver, Developer may, in addition to asserting or claiming any
other right or remedy Developer may have for City's breach or default hereunder, cancel the
applicable Escrow and terminate this Agreement. Such cancellation shall be in writing and
delivered to Escrow Agent and City. In the event Developer elects to cancel the Escrow and/or
terminate this Agreement, all documents and funds, if any, delivered by one Party to the other Party
or to the Escrow Agent with respect to the cancelled Escrow shall be returned to the Party,making
delivery. Developer shall be entitled to all interest earned on Developer funds deposited into
escrow.
Sec. 207.3 Conditions Precedent to City's Obligations
(1) Notwithstanding any other provision set forth in this Agreement to the
contrary, City's obligation to close the Escrow for the Site, and its obligation to convey the Site to
Developer shall be subject to satisfaction or City's written and signed waiver of each of the
following conditions precedent (collectively, the "City's Conditions Precedent"):
. (a) Escrow Agent holds and will deliver to City the instruments and
funds accruing to City;pursuant to this Agreement with respect to the Escrow;
(b) Developer shall have obtained City approval of all of the
Development Entitlements for the Office Site Project;
(c) Developer shall have submitted and obtained the City Manager's
approval of the insurance required with respect to the Escrow pursuant to Section 304 of this
Agreement;
(d) Developer shall have submitted and obtained the City Manager's
approval of Developer's evidence of financing commitments with respect to the applicable
Escrow as provided for in Section 202.12 of this Agreement; .
(e) The .City Council finds, pursuant to Government Code Section
65402, that the Project is consistent with the City's General Plan;
(f) City approves the Escrow Holder's final estimated
closing/settlement statement; and
(g) All representations and warranties by Developer in this Agreement
with respect to the Site shall be true on and as of the Closing as though made at that time and all
covenants of Developer which are required to be performed prior to the applicable Closing shall
have been performed by such date.
CGM DDA Final Sen.DOC 16
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u
Sec. 207.4 Failure of City's Conditions Precedent; Termination
(1) The failure of any of the City's Conditions set forth in Section 207.3 shall
not be a bar to the Closing of the Escrow nor an excuse for City's complete performance under this
Agreement if the failure of the condition is due in whole or in part to the fault of City. City shall
cooperate with Developer and the Escrow Agent to attempt to satisfy each and every one of the
City's Conditions Precedent. In the event, however, that City has fully performed its obligations set
forth in this Agreement but any of the City's Conditions Precedent is not satisfied or waived in a
writing signed by City prior to the expiration of the applicable period for satisfaction or waiver, City
may, in addition to asserting or claiming any other right or remedy City may have hereunder for
Developer's breach or default hereunder, cancel the Escrow and terminate this Agreement. Such
cancellation shall be in writing and delivered to Escrow Agent and City. In the event City elects to
cancel the Escrow and/or terminate this Agreement, all documents and funds, if any, delivered by
one Party to the other Party or to the Escrow Agent with respect to the cancelled Escrow, shall be
returned. to the Party making delivery.
Sec. 208 Environmental Compliance
(1) Full and complete California Environmental Quality Act ("CEQA")
analysis, noticing, documentation and public review will be undertaken by the appropriate lead
agency prior to approval of the Development Entitlements. CEQA compliance is a condition
precedent to Close of Escrow. and performance of this Agreement. The approval of this
Agreement shall not limit the scope of CEQA analysis including project mitigation measures and
the consideration of project alternatives, including a no -project alternative. All costs associated
with the CEQA process shall be paid by Developer.
(2) Notwithstanding the foregoing, the Parties acknowledge that a Mitigated
Negative Declaration has been prepared for the Project and will be considered by the City
Council with the consideration of the Development Entitlements prior to the consideration of this
Agreement.
Sec. 209 Memorandum of DDA
(1) At the time of execution of the DDA the City and Developer shall also sign the
-"Memorandum of DDA" in the form of Attachment No. 4. City shall deliver the
Memorandum of DDA to Escrow, and it shall be recorded at Close of Escrow.
Sec. 210 Repurchase Option
(1) If Developer does not obtain building permits to construct all of the Developer
Improvements, as defined in Section 302 below, pursuant to the Schedule of Performance as set
forth in Attachment 8, or if the Developer defaults in the performance of this Agreement after the
transfer of the Property to Developer prior to the release of the Construction Covenants, then
City shall have an option to repurchase the Property (the "Repurchase Option") for the amount
of the Purchase Price. City must give Developer written notice of its intent to exercise the
Repurchase Option within ninety (90) days after the default or within ninety (90) days after
Developer's failure to obtain a building permit as set for in the Schedule of Performance. Upon
receipt of said written notice, Developer shall have forty-five (45) days to cure, or commence
and diligently pursue such cure, the alleged default or to obtain the building permit. Following
CGM DDA Final Sen.DOC 17
the expiration of the cure period herein, -if City still wishes to repurchase the Property, City shall
notice a public hearing pursuant to Government Code Section 6061 at which the City Council
shall consider the circumstances of the default or failure to obtain said building permit.
Following the decision by the City Council to repurchase the Property, the Developer and City
shall open an escrow within thirty (30) days for the purchase and sale of the Property from
Developer to City. Each party shall pay the customary fees and charges of escrow. Developer
retains the right to litigate the alleged default under this Agreement and seek redress from a court
of competent jurisdiction. The Repurchase Option shall terminate upon issuance of the
Certificate of Occupancy or the release of the Construction Covenants, whichever shall occur
first.
SEC. 300 DEVELOPMENT OF THE PROPERTIES
Sec. 301. Development of Improvements
(1) The Developer shall construct the improvements described in this Section 302,
all of its subsections, and more specifically described on the Scope of Development (the
"Developer Improvements"), attached hereto as Attachment No. 7, at its own cost and
expense. The Property and any improvements to be constructed thereon by Developer shall be
developed as provided in the site plans, development plans, renderings and zoning entitlements
(the "Development Entitlements") to be submitted by Developer and approved by City.
Sec. 301.1 Scope of Development
(1) The Project consists of the following:
(a) A four-story modern office building with amenities on an
approximately 28,200 square feet Office Site;
(b) An approximately 218-space Office Parking Lot on City -owned
property subject to the Declaration for the four-story office development; and
(c) A new approximately 129-space library parking lot (Area D
Parking Lot) on adjacent Los Angeles County land as designed and approved by County.
(2) The Office Parking Lot will be constructed, operated and maintained by
the Developer at the sole cost of Developer and will provide the parking for the Office Site.
(3) Developer shall construct at its sole cost, and without any public
assistance of any kind, the "Area D Parking Lot" as shown on the Site Plan (attached hereto as
Attachment No. 5) in accordance with plans and specifications, including a validation system,
approved by the County of Los Angeles. Developer shall convey the Area D Parking Lot
improvements to the County of Los Angeles free of charge. The Area D Parking Lot shall be
owned by the County of Los Angeles, and shall be used for the exclusive use of the patrons of
the County Library or as otherwise designated by the County of Los Angeles. The Area D
Parking Lot shall be owned and maintained by the County of Los Angeles.
(4) The construction of the Area D Parking Lot shall be completed and
CGM DDA Final Sen.DOC 1 18
available for parking use by the County of Los Angeles prior to the commencement of any
demolition, grading or any other activity on the existing 100-space parking lot for the County
Library.
(5) The architecture of the building on the Office Site will be of a
contemporary style substantially as shown on the "Elevation" attached hereto as Attachment
No. 6.
(6) The Development of the Property shall be in accordance with the
Development Entitlements and the "Scope of Development" attached hereto as Attachment No.
7, and within the time period specified in the "Schedule of Performance" attached hereto as
Attachment No. 8.
(7) Following issuance of a certificate of completion for the Area D Parking
Lot improvements, Developer shall be released and relieved of all duties, obligations, and risks
associated with the use of the Area D Parking Lot.. Developer shall have no ongoing obligations
or liabilities associated with the maintenance, use, or operation of the Area D Parking Lot. City
waives and releases Developer from future liability arising from or related to the Area D Parking
Lot. Notwithstanding the foregoing Developer shall remain responsible for any liability arising
from the work performed by Developer in the planning, design or construction of the
Improvements as follows:
1. For responsibility and liability for defects in construction,
workmanship, and warranty of the work, a period of one year from completion of the Area D
Parking Lot improvements.
2. For responsibility and liability to the County of Los Angeles or the
City for design defects, a period of ten years from completion of the Area D Parking Lot
improvements.
3. For responsibility and liability to third parties for personal injury,
bodily injury or death, a period of time after completion of the Area D Parking Lot
improvements in accordance with the applicable statute of limitations.
Sec. 301.2 Office Parking Lot Declaration
The City and Developer will execute the. Declaration for the Office Parking Lot
on the following terms:
(a) The Declaration shall commence as of the date on which the
Developer closes escrow and acquires fee title to the Office Site property, and shall expire
ninety-nine (99) years thereafter (the "Initial Term"). The Declaration shall be for the non-
exclusive use of Developer and shall allow general public parking in the Office Parking Lot.
(b) The consideration for the Declaration for the Office Parking Lot
for the Initial Term is included in the Purchase Price. There shall be no refund of any part of the
Purchase Price if the Declaration is terminated early. As additional rent, Developer shall pay all
real estate taxes, assessments, special assessments, liability and broad form protection property
insurance, and all maintenance costs of operating the Office Parking Lot.
CGM DDA Final Scn.DOC 19
0 9
(c) Developer shall comply with all other conditions mutually agreed
to and memorialized in the Declaration for the Office Parking Lot, a nonbinding draft of which is
attached to this Agreement as Attachment No. 10. It is anticipated that the Declaration will'be
amended by mutual agreement of Developer and City to accommodate construction, financing
and sale of condominium office units and the formation of an owners association to operate and
maintain the Office Parking Lot. The City Manager is authorized.to execute any necessary
documents to implement the provision of this subsection (c). The final Declaration for the Office
Parking Lot must be approved by the City Attorney and City Manager.
(d) Developer acknowledges that the City shall have the right at any
time during the terns of the Declaration to terminate said Declaration and take possession of the
Office Parking Lot for the purpose of implementing a new development project of the Office
Parking Lot, contingent upon the City providing, prior to Developer losing access to the Office
Parking Lot, replacement parking for the Office Project. Prior to terminating the Declaration
pursuant to this Section, the City shall provide like replacement parking that is acceptable to the
Developer, which may be within a parking structure on City's Civic Center property, and shall
provide no less than the same number of parking spaces constructed by the Developer, unless an
acceptable shared parking arrangement can be established. Replacement parking provided to the
Developer shall ensure that Developer remains in compliance with all laws, rules and regulations
governing parking requirements for the Office Site.
Sec. 301.3 Employment Opportunities
Developer shall make good faith efforts to hire West Covina residents as
employees of Developer for the operation and maintenance of the Project.
Sec. 301.4 City Approval of Plans Drawings and Related Documents
(1) Developer shall prepare and submit to the City the construction drawings
and related documents for development of the Property for architectural review and written
approval. City will promptly review the drawings and specifications. Any items so submitted
and approved in writing by the City shall not be subject to subsequent disapproval by the City.
In addition, Developer shall submit the plans, drawings and related documents to the City for
approval, for which Developer shall bear such costs as normally charged for these City services.
The City shall approve or disapprove all plans, drawings and related documents before or on the
day that the City approves or disapproves said documents. The Developer shall obtain all
required permits and pay development impact fees related to the development of the Property
(provided such fees are levied pursuant to a citywide ordinance and are not specially assessed
against the Property). The Developer shall pay all government processing fees related to the
development (provided such fees are levied pursuant to a citywide ordinance and are not
specially assessed against the Property).
(2) During the preparation of all drawings and plans, the City and Developer
shall hold regular progress meetings or conference calls to coordinate the preparation,
submission, and review of drawings, plans and related documents by the City. The City and
Developer shall communicate and consult informally and as frequently as necessary to insure
that the formal submittal of any documents to the City can receive prompt and speedy
consideration.
CGM DDA Final Sen.DOC 20
9 •
(3) If any revisions or corrections of plans approved by the City shall be
required by any government official, agency,* department or bureau having jurisdiction or any
lending institution involved in financing, Developer shall coordinate efforts to obtain waiver of
such requirements, if reasonably practicable, or develop an alternative mutually acceptable to the
City. Costs for planning and constructing Developer improvements shall include, but not be
limited to the following: All on -site improvements, costs of acts of mitigating adverse
environmental impacts, fees (federal, state and local), and other related costs generally necessary
for a development of the scope and nature proposed by the Developer.
Sec. 301.5 Cost of Development
(1) All costs for engineering, planning, designing, parcel map, permits,
entitlements and constructing the Developer Improvements shall be borne exclusively by the
Developer. The Developer shall also bear all costs related to discharging the duties of the
Developer set forth in this Agreement.
Sec. 302 Schedule of Performance
(1) As soon as commercially practical after the conveyance of the Office Site
Property to Developer and Developer receives Development Entitlements, Developer shall begin
to diligently commence and complete the construction of the Improvements and the development
of the Properties. Developer shall begin and complete plans, development and construction of
the Property within the time specified in the "Schedule of Performance" attached hereto as
Attachment No. S, or such reasonable extension of said dates as may be granted by City
Manager, which extension shall not be unreasonably withheld. The Schedule of Performance is
subject to revision from time to time as mutually agreed upon in writing between Developer and
City Manager.
Sec. 303 Insurance; Indemnity
(1) Prior 'to the commencement or continuation of any construction hereunder
occurring after the City approves this Agreement, the Developer shall obtain a general liability
insurance'policy and maintain such policy in effect until the completion of all of the Developer.
Improvements (as reasonably determined by the City) providing coverage for bodily injury and
property damage in the minimum amount of Two Million Dollars ($2,000,000) per occurrence.
The policy shall name, as additionally assureds, the City and their officers and employees in their
official capacity and while acting within the scope of their duties, _against all claims, suits, or
other actions of any nature brought for or on account of any deaths, injuries, damage or loss,
arising out of or connected with the work of Developer Improvements under this Agreement.
(2) Insurance coverage furnished by Developer, pursuant to this Section 304, may be
submitted as one or more policies or part of a blanket policy, but coverage shall conform to this
Section 304 and shall pertain to all activities on the Properties and shall require approval by the
City.
(3) Developer shall furnish City a certificate of insurance from its insurer evidencing
compliance with this Section 304 with the provision that the insurer shall endeavor not to cancel
or modify the policy without thirty (30) days written notice to City. Developer shall give City
prompt and timely notice of any claim made or suit instituted. City and their officers and
employees, in their official capacity and while acting within the scope of their duties, shall also
CGM DDA Final Sen.DOC 21
be named as additionally insured in any policies of Developer's contractors covering work under
this Agreement; and such policies shall comply with this Section 304. Coverage shall be primary
and not contributing with any policy or coverage maintained by or obtained by the City, and
shall include an appropriate endorsement and waiver of subrogation.
(4) Developer shall comply with all of the provisions of the Workers' Compensation
Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and
5 of the California Labor Code, and all amendments thereto, and all similar State or Federal acts
or laws applicable and arising thereunder. Developer shall furnish to City a certificate of
Workers' Compensation insurance providing that the insurer shall endeavor not to cancel or
modify the policy without thirty (30) days prior written notice to City. As an alternative,
Developer may show proof of a certificate of consent to self -insure issued by the Director of
Industrial Relations, pursuant to California Labor Code § 3800.
(5) Developer agrees to and shall indemnify, defend and hold harmless the City from
and against all claims, demands, liabilities, losses, damages, costs, mechanics' liens, or expenses
(including reasonable attorneys' fees and court costs) arising from or relating to the death of any
person or any accident, injury, loss, or damage whatsoever to person or property which shall
occur on the Properties and which shall be directly or indirectly caused by any acts, errors or
omissions of Developer or its agents, servants, employees, tenants, or contractors. Developer
shall not be responsible for, and this indemnity shall not apply to, such matters to the extent
caused by any willful or negligent conduct of the City or the City or their respective agents,
servants, employees, or contractors.
Sec.304 Environmental Indemnity
Sec. 304.1 Environmental Release
(1) Developer, for itself and its successors and assigns, unconditionally
releases City from and against any and all liability to Developer, both known and unknown,
present and future, for Environmental Damages to Developer arising out of any violation of
Environmental Requirements or the presence of Hazardous Material on, under or about the
Properties (the "Environmental Release") following the Close of Escrow or as a result of
Developer actions.
(2) With respect to the Environmental Release, Developer, after consultation
with legal counsel and with full knowledge of the consequences of its actions, waives the
provisions of California Civil Code Section 1542, which provides: .
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT BY THE DEBTOR.
Developer's Initials:
Sec.304.2 EnvrronmentalIndemnity
(1) Developer .shall indemnify, defend, and hold City harmless from and
against all Environ rental Damages arising from the presence of any Hazardous Material at, in,
on, or under the Properties, or migrating off the Properties (including groundwater), if such
CGM DDA Final Sen.DOC 22
Hazardous Material was first introduced to the Properties following the Close of Escrow or as a
result of Developer's action, including without limitation:
(a) all claims, lawsuits, demands, obligations, investigations, damages,
penalties, fines or actions by any federal, state, or local governmental agency (collectively,
"Government Claims" ) based upon Developer's failure to remediate the Properties;
(b) all claims, lawsuits, demands, obligations, investigations, damages
(including but not limited to diminution in value of properties and related stigma damages, lost
profits and consequential damages), penalties, fines or actions by owners and operators of
adjacent and nearby properties or any other persons (collectively, "Third -Party Claims");
(c) all claims, lawsuits, demands, liabilities, damages, losses or
judgments for personal injury or for injury to real or personal property;
(d) all claims, lawsuits, demands, obligations, investigations, damages,
penalties, fines or actions by subsequent owners and operators of the Properties or any lenders
providing financing with respect to the Property arising from any underlying Govermnent Claims
under Section 10.3(a), Third -Party Claims under Section 10.3(b); and/or any other claims under
Section 10.3(c); and
(2) Developer's obligations under this Section 203.3 are collectively referred
to in this Agreement as "Developer's Indemnity Obligations".
Sec. 304.3 Defense of Claims
(1) Provided that Developer accepts any tender of any Reasonable expense or
reasonable claim by City without any reservation, Developer shall have the right, in consultation
with City, to control on behalf of City any and all negotiations, settlement discussions,
investigations, testing, defenses, trials, actions, proceedings, hearings, additional remediation
obligations, and other resolutions with.all Agencies and third parties arising out of, incidental to,
or in connection with Developer's performance of Developer's Indemnity Obligations. If.
Developer does not accept a tender of any reasonable expense or reasonable claim by City
without reservation, City shall be entitled to engage in all such matters described in the preceding
sentence on its own account, and shall be entitled to recover from Developer the costs of
engaging in such matters (including consultants' fees and reasonable attorneys' fees), provided
Developer's denial of liability is adjudicated to be in violation of the terms hereof. Without
limiting Developer's rights as described above, Developer shall undertake reasonable
consultation with City with respect to matters materially involving the Properties or City.
Sec.304.4 Definitions
(1) For purposes of Section 305 the following terms have the meanings
indicated.
(a) "Environmental Damages" means all claims, judgments,
damages, losses, penalties, fines, liabilities (including strict liability), encumbrances, liens, costs,
and expenses of investigation and defense of any clai>n, whether or not such claim is ultimately
defeated, and of any good faith settlement of judgment, of whatever kind or nature, contingent or
otherwise, matured or unmatured, foreseeable or unforeseeable, including without limitation
reasonable attorneys' fees and disbursements and consultants' fees, any of which are incurred at
CGM DDA Final Sen.DOC 23
any time as a result of the existence of Hazardous Material, prior to the Closing, upon, about,
beneath the Properties or inigrating or threatening to migrate to or from the Properties, or the
existence of a violation of Environmental Requirements pertaining to the Properties, regardless
of whether the existence of such Hazardous Material or the violation of Environmental
'Requirements arose prior to the present ownership or operation of the Properties, and including
without limitation:
1. Damages for personal injury, or injury to property or
natural resources occurring upon or off the Properties, foreseeable or unforeseeable, including,
without limitation, lost profits, consequential damages, the cost of demolition and rebuilding of
any improvements on real property, interest and penalties;
2. Fees incurred for the services of attorneys, consultants,
contractors, experts, laboratories and all other costs incurred in connection with the investigation
or remediation of such Hazardous Materials or violation of Environmental Requirements
including, but not limited to, the preparation. of any feasibility studies or reports or the
performance of any cleanup, remediation, removal, response, abatement, containment, closure,
restoration or monitoring work required . by any federal, state or local government agency or
economic use of the Properties or any other property in a manner consistent with its current use
or otherwise expended in connection with such conditions, and including without limitation any
attorneys' fees, costs and expenses incurred in enforcing this agreement or collecting any sums
due hereunder;
3. Liability to any third person or governmental agency to
indemnify ,such person or agency for costs expended in connection with the items referenced in
subparagraph (ii) herein; and
4. Diminution in the value of the Properties, and damages for
the loss of business and restriction on the use of or adverse impact on the marketing of rentable
or usable space or of any amenity of the Properties.
(b) "Environmental Requirements" means all applicable present and
future statutes regulations, rules, ordinances, codes, licenses, permits, orders, approvals, plans,
authorizations, concessions, franchises, and similar items, of all governmental agencies,
departments, commissions, boards, bureaus, or instrumentalities of the United States, states and
political subdivisions thereof and all applicable judicial, administrative, and regulatory decrees,
judgments, and orders, relating to the protection of human health or the environment, including,
without limitation:
1. All requirements, including but not limited to those
pertaining to reporting, licensing, pennitting, investigation, and remediation of emissions,
discharges, releases, or threatened releases of Hazardous Materials, chemical substances,
pollutants, contaminants, or hazardous or toxic substances, materials or wastes whether solid,
liquid, or gaseous in nature, into. the air, surface water, groundwater, or land, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of
chemical substances, pollutants, contaminants, or hazardous or toxic substances, materials or
wastes, whether solid, liquid, or gaseous in nature, and
2. All requirements pertaining to the protection of the health
and safety of employees or the public.
CGM DDA Final Sen.DOC 24
0 0
(c) "Hazardous Material" means any substance:
1. the presence of which requires investigation or remediation
under any federal, state or local statute, regulation, ordinance, order, action, policy or common
law; or
2. which is or becomes defined as a "hazardous waste,"
"hazardous substances," pollutant or contaminant under any federal, state or local statute,
regulation, rule or ordinance or amendments thereto including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section
9601 et seq.); and/or the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.); or
3. which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any
governmental authority, agency, department, commission, board, agency or instrumentality of
the United States, the State of California or any political subdivision thereof, or
4. the presence of which on the Properties pose or threaten to
pose a hazard to the health or safety of persons on or about the Properties; or
5. which contains petroleum, petroleum products or other
hydrocarbon substances; or
6. which contains polychlorinated biphenyls (PCB's),
asbestos, urea formaldehyde foam insulation or radon gas.
Sec. 305 Prevailing Wage
(1) Developer acknowledges that portions of the Project consist of.public owned
property. Developer further understands and acknowledges that Developer may be required by
California Labor Code Sections 1720 and 1770 to comply with the prevailing wage requirements
of California Labor Code Sections 1720-1861. Failure to comply with these provisions may
result in substantial penalties.
Sec. 306 City and Other Governmental City Permits
(1) Except for City's responsibilities under this Agreement, before commencement of
construction or development of any buildings, structures or other work or improvement within
the Properties (but not necessarily before the conveyance of title, unless such construction or
development or work is to be commenced before the conveyance of title), the Developer shall, at.
its own expense, secure or cause to be secured any nonnal permits which may be required by the
City or any other governmental agency affected by such construction, development or work.
City shall provide appropriate assistance to Developer in securing these permits.
Sec. 307 Rights of Access
(1) For the purposes of assuring compliance with this Agreement, representatives of
City shall have the reasonable right of access to the Properties without charges or fees, at normal
construction hours during the period of construction for the purposes of monitoring Developer's
compliance with this Agreement.
CGM DDA Final Sen.DOC 25
•
(2) Additionally, representatives of the City shall have.the reasonable right of access
to the Properties, without charges or fees, at normal construction hours during the period of
construction, for the purposes contained in this Agreement, to inspect the work being performed
in constructing the Improvements.
Sec. 308 Local, State and Federal Laws
(1) The Developer shall carry out the construction of all Improvements and the
development of the Properties in conformity with all applicable laws, including all applicable
federal and state labor standards, provided, however, Developer and its contractors, successors,
assigns and transferees, and lessees are not waiving their rights to contest any such laws, rules or
standards.
(2) Notwithstanding any provision of this Agreement to the contrary, Developer shall
not be required to contract with or otherwise do business with any contractor that in its sole
discretion seems not responsible and/or incapable of adequately performing the construction
improvements.
Sec. 309 Taxes, Assessments Encumbrances and Liens
(1) Developer shall pay when due all real estate taxes and assessments on the
Properties levied subsequent to a conveyance of title to the Property. Developer shall not place
or allow to be placed on the Properties or any part thereof, any mortgage, trust deed,
encumbrance or lien unauthorized by this Agreement. Developer shall remove or have removed
any levy or attachment made on any of the Properties or portion thereof or assure the satisfaction
thereof within a reasonable time, but in any event prior to a sale thereunder.
(2) If Developer or a successor, transferee, assignee, or tenant contests the validity or
grant of any tax assessment, the Developer, successor, transferee, assignee or tenant shall notify
the City that it intends to contest the assessment. The City shall have the right to challenge any
contest of a tax assessment of the Project Properties.
SEC. 400 SECURITY FINANCING• RIGHTS OF HOLDERS
Sec._401 No Encumbrances Except Mortgages Deeds of Trust Sales and Leases
Back or Other Financing for Development
(1) Mortgages, deeds of trust, sales and leases back or any other form of conveyance
required for any reasonable method of financing are permitted before issuance of a Release of
Construction Covenants of the construction of Improvements, but only for the purpose of
securing loans of funds to be used for land and acquisition, fees, permits, consultants and for the
construction of Improvements on the Site and any other expenditures necessary and appropriate
to develop, maintain, and operate the Site under this Agreement. Developer shall notify the City
in advance of any mortgage, deed of trust, sale or lease back or other form of conveyance for
financing, if Developer proposes to enter into the same before issuance of a Release of
Construction Covenants of the construction of the Improvements on the Site.
(2) The Office Parking Lot property and Developer's interest in the Office Parking
Lot may not be mortgaged, encumbered or liened in any manner by Developer without the prior
CGM DDA Final Sen.DOC 26
written consent of City, which consent City may withhold in its sole discretion with or without
cause.
Sec. 402 Construction Financing
(1) Developer shall not enter into any such conveyance for financing without the
prior written approval of City which approval City agrees to give if any such conveyance for
financing is given to a responsible financial or lending institution or other acceptable person or
entity. Such lender must be approved in writing by the City. Any financing consistent with and
approved pursuant to Section 202.12 shall be deemed acceptable to the City and not require
additional written approval.
(2) The word "mortgage" and "deed of trust," as used. herein, include all other
appropriate modes of financing real estate acquisition, construction, and land development.
Sec. 403 Intentionally Deleted.
Sec. 404 Intentionally Deleted.
Sec. 405 Holder Not Obligated to Construct Improvements
(1) The holder of any mortgage, deed of trust or other security interest authorized by
this Agreement shall in no way be obligated by the provisions of this Agreement to construct or
complete the Improvements or to guarantee such construction or completion; nor shall any
covenant or any other provision in the Grant Deed for the property be construed so to obligate
such holder. Nothing in this Agreement shall be deemed to construe,. permit, or authorize any
such holder to devote the Site or any part thereof to any uses, or to construct any improvements
thereon, other than those uses or improvements provided for or authorized by this Agreement.
_Sec. 406 Notice of Default to Mortgage Deed of Trust or Other Security Interest
Holders; Right to Cure
(1) Whenever City shall deliver any notice or demand to Developer, with respect to
any breach or default by Developer in completion of construction of the Improvements, the City
shall, at the same time, deliver to each holder of record of any mortgage, deed of trust or other
security interest authorized by this Agreement who has requested in writing said notices from the
City, a copy of such notice or demand. ,Each such holder shall (insofar as the rights of City are
concerned) have the right, at its option within sixty (60) days after the receipt of the notice, to
cure or remedy any such default and to add the cost thereof to the security interest debt and the
lien on its security interest. The time for Lender to cure shall be extended, if the Lender has
undertaken steps to cure, in which case such time .will be extended for as long as Lender
reasonably needs, providing the Lender- is acting diligently. Nothing contained in this
Agreement shall be deemed to permit or authorize such holder to undertake or continue the
construction or completion of the Improvements (beyond the extent necessary to conserve or
protect the improvements or construction already made) without first having expressly assumed
Developer's remaining obligations to City by written agreement satisfactory to the City. In that
event, the holder must agree to complete, in the manner provided in this Agreement, the
Improvements to which the lien or title of such holder relates, and submit satisfactory evidence
to City that it possesses the qualifications and financial resources necessary to perform such
CGM DDA Final Sen.DOC 27
obligations. Any such holder properly completing such Improvements shall be entitled, upon
written request made to City, to a Release of Construction.Covenants from the City.
Sec. 407 Failure of Holder to Complete Improvements
(1) In any case of an uncured sixty (60) day default by Developer in completion of
construction of improvements under this Agreement, if the holder of any mortgage, deed of trust
or other security interest creating a lien or encumbrance upon the Site or any Parcel thereof has
not exercised the option to construct, or if it has exercised the option and has not proceeded
diligently with construction, the City may purchase the mortgage, deed of trust or other security
interest by payment to the holder of the amount of the unpaid debt. If the ownership of the Site
or any part has been vested in the holder, the City, if it so desires, shall be entitled to a
conveyance of the Site, or any part of the Site, from the holder to the City upon payment to the
holder of an amount equal to the sum of the following:
(a) Unpaid mortgage, deed of trust or other security interest debt at the time
title became vested in the holder (less all appropriate credits, including those resulting from
collection by lender and application of rentals and income received during foreclosure
proceedings).
(b) All reasonable expenses with respect to foreclosure.
(c) The net expenses, if any (exclusive of overhead), incurred by the holder as
a direct result of the City approved subsequent management of the Site or part thereof.
(d) The cost or value, whichever is less, of any City approved improvements
made by such holder.
Sec. 408 Right of City to Cure Mortgage Deed of Trust or Other Security Interest
Default
(1) In the event of an uncured default by Developer or breach of a mortgage, deed of
trust or other security interest, prior .to recordation of a Release of Construction Covenants for
the improvements on the project Site, and the holder of any such security interest has not
exercised its option to complete the development, after an advance written demand to Developer
that the default must be cured within thirty (30) days, the City may cure the default prior to
completion of any foreclosure. In such event, the City shall be entitled to reimbursement from
Developer of all costs and expenses incurred by the City in curing the default. The City shall
also be entitled to a lien upon the Site to the extent of such costs and disbursements. Any such
lien shall be subject to mortgages, deeds of trust or other security instruments executed for the
sole purpose of obtaining funds to purchase and develop the Site as authorized herein.
Sec. 409 Rights of City to Satisfy Other Liens on the Property After Title Passes
(1) After the conveyance of title of the Site, prior to the recordation of a Release of
Construction Covenants for construction and development, and after Developer has had
reasonable time to challenge, cure or satisfy any liens or encumbrances on the Site, or any part
thereof, the City shall have the right to satisfy any such liens or encumbrances, provided
however, that nothing in this Agreement shall require Developer to pay or make provision for the
CGM DD.A final Sen.DOC 28
payment of any tax, assessment, lien or charge as long as the Developer shall in good faith
contest the validity or amount thereof, and provided such delay in payment shall not subject the
Site, or part thereof, to forfeiture or sale.
SEC. 500 USE OF THE SITE AND COVENANTS
Sec. 501 Uses and Covenants
(1) The Developer covenants and agrees, for itself, its successors, its assigns, and
every successor in interest to the Site or any part thereof, that during construction and thereafter,
the Developer, such successors and such assignees, shall devote the Site to the uses specified in
the City Zoning Laws, General Plan, the Grant Deed, the Development Entitlements and the
Covenants, Conditions and Restrictions on the Site. The Grant Deed shall provide that
Developer shall commence and complete the construction of the improvements required in the
Development Entitlements. After issuance of a Release of Construction Covenants for all or a
portion of such improvements, Developer may alter, modify, or replace such improvements,
provided that such changes are consistent with the City Zoning Laws, General Plan and do not
reduce the value of the improvements below the value of the improvements immediately prior to
their alteration, modification or replacement. Any change in use inconsistent with the City
Zoning Laws, General. Plan, the Development Entitlements defined under this Agreement, or the
Grant Deed shall not be permitted without the prior written approval of the City of West Covina.
(2) The Developer covenants and agrees for itself, its successors, its assigns, and
every successor in interest or any part thereof, that Developer, such successors and such
assignees, shall devote the project Site, to the uses specified in the City Zoning Laws, General
Plan and for purposes specified in the Development Entitlements as authorized by this
Agreement or the City for a period of twenty (20) years, unless a change of use is approved by
the City. This covenant shall run with the land.
Sec. 502 Obligation to Refrain from Discrimination
(1) There shall be no discrimination against or segregation of any person, a group of
persons, on account of race, color, religion, marital status, disability, age, national origin or
ancestry in the construction, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the Site, nor shall the Developer itself or any person claiming under or through it establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Site.
Sec. 503 Operating Covenants
(1) Developer covenants and agrees. as follows:
(a) Developer shall cause the completion of the Project and the opening of the
Project by the dates set forth therefore in the Schedule of Performance.
Sec. 504 Release of Construction Covenants
(1.) Within in five (5) days following the issuance of the Certificate of Occupancy,
which shall- not be unreasonable withheld or delayed, for the office building on the Office Site,
City shall furnish Developer with a "Release of Construction Covenants" in a form consistent
CGM DDA Final Sen.DOC 29
with Attachment No. 9, upon written request therefore by Developer. The City shall not
unreasonably withhold such Release of Construction Covenants. Such Release of Construction
Covenants shall provide that satisfactory completion of the construction required by this
Agreement and all other performance required by Developer under this Agreement has been
conclusively determined by the City. If requested by Developer, City shall furnish with a
certificate of completion or release of construction obligations for the construction of the Area D
Parking Lot and the Office Parking Lot separately from and prior to the issuance of the Release
of Construction Covenants for the office building on the Site.
(2) The Release of Construction Covenants shall be in such form as to permit it to be
recorded in the Recorder's Office of Los Angeles County.
(3) Such Release of Construction Covenants shall not constitute evidence of
compliance with or satisfaction of any obligation of Developer to any holder of any mortgage or
any insurer of a mortgage securing money loan to finance the improvements, or any part thereof.
Such Release of Construction Covenants is not Notice of Compliance as referred to in the
California Civil Code.§ 3093.
Sec. 505 Effect and Duration of Covenants
(1) The covenants established in this Agreement and the deeds shall, without regard
to technical classification and designation, be binding for the benefit and in favor of the City, its
successors and assigns, the City and any successor in interest to the Site. The covenants against
discrimination shall also be binding for the benefit and in favor of the State of California and the
City. The non-discrimination covenants contained in this Agreement at Section 502 and in the
deeds shall remain in effect in perpetuity from the date of issuance of a Release of Construction
Covenants.
(2) Breach of any of the covenants or provisions contained in this Agreement shall
not give rise to any right of reverter, to any estate of reverter, nor to any right of reentry or
forfeiture of the Site or any part thereof, or to any successor assignee in interest in the property
or any part thereof or any interest therein.
(3) The. City is deemed the beneficiary of the terms and provisions of this Agreement
and of the covenants running with the land, for and in its own rights and for the purposes of
protecting the interests of the community and other parties, public or private, in whose favor and
for whose benefit this Agreement and the covenants running with the land have been provided.
The Agreement and the covenants shall run in favor of the City, without regard to whether the
City has been, remains or is an owner of any land or interest therein in the Site. Except as
expressly limited by the terms of this Agreement, the City shall have the right, if the Agreement
or covenants are breached, to exercise all rights and remedies, and to maintain any actions or
suits at law or in equity or other proper proceedings to enforce the curing of such breaches io
which it or any other named beneficiaries of this Agreement and covenants may be entitled. The
provisions of this Agreement do not create any rights except in the City, City and State of
California as named beneficiaries.
(4) The covenants in favor of the City shall run with the land without regard to
whether the City has been, remains, or is an owner of any land or interest therein in the Site. The
City shall have the right, if this Agreement or any covenants set forth are breached, to commence
an action for specific performance of the terms of this Section.
CGM DDA Final Sen.DDC 30
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SEC. 600 DEFAULTS AND REMEDIES
Sec.601 Defaults —General
(1) Subject to the extensions of time set forth in Section 703, unexcused and uncured
failure or delay by either party to perform any material term or provision of this Agreement
constitutes a default under this Agreement. The party who so fails or delays must immediately
cure, correct, or remedy such failure or delay.
(2) The injured party shall give written notice of default to the party in default,
specifying the default complained of by the injured party. Except as required to protect against
further damages, and except as otherwise expressly provided in Section 603 of this Agreement,
the injured party may not institute proceedings against the party in default until at least thirty
(30) days after giving such notice. Delay in giving such notice shall not constitute,a waiver of
any default; nor shall it change the time of default.
(3) Except as otherwise expressly provided in this Agreement, any failures or delays
by either party in asserting any of its rights and remedies as to any default, shall not operate as a
waiver of any default or of any such rights or remedies, or deprive either such party of its rights
to institute and maintain any actions or proceedings which it may deem necessary to protect,
assert, or enforce any such rights or remedies.
Sec. 602 Legal Actions
Sec. 602.1 Institution of Leaal Actions
(1) In addition to any other rights or remedies and subject to the restrictions in
Section 601, the Developer or the City may institute legal action to seek specific performance of
the terms of this Agreement or to cure, correct or remedy any default, to recover damages for any
default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal
actions must be instituted in the Superior Court of the County of Los Angeles, State of
California, East District, in an appropriate municipal court in that county, or in the Central
Federal District Court of California. The Developer and the City shall have such rights and
remedies available to it under law, including the right to sue for specific performance, except as
expressly limited by the terms of this Agreement.
Sec. 602.2 Applicable Law
(1) The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
Sec. 602.3 Acceptance of Service of Process
(1) In the event that any legal action is commenced by Developer against the
City, service of process on the City shall be made by personal service upon the City Manager or
in such other manner as may be provided by law.
(2) In the event that any legal action is commenced by the City against the
Developer, service of process on Developer shall be made by personal service and shall be valid
whether made within or without the State of California or in such other manner as may be
provided by law.
CGM DDA Final Sen.DOC 31
Sec. 603 Rights and Remedies Are Cumulative
(1) Except as otherwise expressly stated in this Agreement, the rights and remedies of
the parties are cumulative, and the exercise by either party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same or different times, of any other rights
or remedies for the same default or any other default by the other party.
Sec. 604 Remedies and Rights of Termination Prior to Conveyance
Sec. 604.1 Termination by Developer
(1) In the event that the City by default does not tender conveyance of title to
the Office Site or execute lease of the Office Parking Lot, or possession thereof, in the manner
and condition, and by the dates provided in this Agreement, and any such failure is not cured
within thirty (30) days after the date of written demand by Developer, the Agreement may then,
at the option of Developer, be terminated by written notice thereof to the City, and neither the
City nor Developer shall have any further rights or remedies against or liability to the other under
this Agreement with respect to said Site, except that the City will return the Developer's Escrow
Deposit and Performance Deposit to Developer.
Sec. 604.2 Termination by City
(1) The City may terminate this Agreement if, after thirty (30) days written.
notice, any of the following defaults exist prior to the conveyance of title to Developer:
(a) Developer (or any successor in interest) wrongfully' assigns or
attempts to assign this Agreement or any rights therein, or in the Site or part thereof;
(b) Developer does not submit construction plans, drawings and
related documents as required by this Agreement in satisfactory form and in the manner and by
the dates respectively provided in this Agreement therefore, or does not submit evidence that it
has the necessary equity capital, construction financing and mortgage financing, and insurance in
satisfactory form and in the manner and by the dates respectively provided in this Agreement; or
(c) Developer does not pay the Purchase Price and take title under
tender of conveyance by the City pursuant to this Agreement.
(2) . If any default or failure referred to in subdivisions (a) through (c) inclusive
of this Section 604.2 shall not be cured within thirty (30) days after the date of written demand,
by City, then this Agreement with respect to unconveyed portion of the Site and any rights of
Developer or any assignee or transferee in this Agreement, pertaining thereto or arising
therefrom, with respect to City, may, at the option of the City, be terminated by City, in which
event, Developer (or assignee or transferee) shall have no further rights against the City under
this Agreement. In the event of termination, pursuant to paragraphs (a) through (c) above, the
Developer's Deposit shall be retained by the City as liquidated damages and as its property
without deduction, offset, or recoupment whatsoever, and Developer (or assignee or transferee)
shall have no further rights under the Agreement with respect to the unconveyed portion of the
Site, and any improvements to be developed and constructed thereon, and Developer shall have
no other or further liability under this Agreement.
CGM DDA Final Sen.DOC 32
(3) The right of termination and retention of the Developer's Escrow Deposit
as liquidated damages shall be. City's sole and exclusive remedy against Developer in the event
of Developer's default or failure as provided above prior to conveyance of title to the Site.
Sec. 605 Remedies of City for Default by Developer After Passage of Title and
Prior to Completion of Construction
Sec. 605.1 Termination and Damages
(1) After conveyance of title to the Site and prior to recordation of a Release
of Construction Covenants, if the Developer defaults with regard to any provision of this
Agreement, the City shall serve written notice of such default upon the Developer. If the default
is not cured, or substantially commenced to be cured, by the Developer within thirty (30) days
after service of the notice thereof by the City, the City at its option may terminate this
Agreement, subject to the rights of secured lenders, and the defaulting party shall be liable to the
City for any damages caused by such default and such other relief as is afforded by applicable
law.
Sec. 605.2 Specific Performance
(1) If either Party defaults under any of the provisions of this Agreement prior to the
completion of construction of the improvements to be made thereon, the injured party shall serve
written notice of such default upon the Developer. If the default is not commenced to be cured
by the Developer within thirty (30) days of service of the notice of default, the injured party,. at
its option, may institute an action for specific performance of the terms of this Agreement in lieu
of any other remedy.
Sec. 605.3 Right of Reentry
(1) Subject to the rights of Developer's lenders and/or secured lien holders to
the Site, City shall have the additional right, at its option, to reenter and take possession of the
Site with all improvements thereon and to terminate and revest in the City the estate conveyed to
Developer if, after conveyance of title and prior to the recordation of the Release of Construction
Covenants, Developer (or its successors in interest) shall, in violation of its covenants under this
Agreement, but subject to the provisions of Section 703 of this Agreement:
(a) Fails to commence construction of the improvements, as required
by this Agreement, for a period of thirty (30) consecutive days after written notice to proceed
from the City, provided that Developer has not obtained an extension or postponement to which
Developer may be entitled, pursuant to the terms of this Agreement, and provided that Developer
has obtained all approvals and entitlements necessary for the construction of the Improvements;
(b) Abandons or substantially suspends construction of the
improvements for a period of thirty (30) consecutive days after written notice of such
abandonment or suspension from the City, provided Developer has not obtained an extension or
postponement to which Developer may be entitled, pursuant to.the terms of this Agreement; and
(c) Transfers or suffers any involuntary transfer of the Site, or any part
hereof, in violation of this Agreement, and such violation has not been cured within thirty (30)
days after written demand by City to Developer.
CGM DDA Final Sen.DOC 33,
• 9
(2) The right to reenter and repossess, terminate, and revest shall be subject
to, be limited by and shall not defeat, render invalid, or limit:
(a) Any mortgage, deed of trust or other security instrument permitted
by this Agreement; or
(b) Any rights or interest provided in this Agreement for the protection
of the holder of such mortgages, deeds of trust or other security instruments.
(3) The rights established in this Section shall not apply to individual parts of
the Site on which the improvements to be constructed thereon have been completed in
accordance with the Agreement, and for which a Release of Construction Covenants has been
recorded therefore as provided in Section 506.
(4) Subject to the rights of the lender, the deed shall contain appropriate
reference and provision to give effect to the City's right, as set forth in this Section 605.3, under
specified circumstances prior to recordation of the Release of Construction Covenants to reenter
and take possession of the Site or portion thereof with all improvements thereon and.to terminate
and revest in the City the estate conveyed to Developer. The deed shall contain language that all
such rights provided in this Section 605.3 shall be deemed void upon the issuance of the Release
of Construction Covenants.
(5) Subject tothe prior rights of the lender, upon the revesting of title to the
property to the City, as provided in this Section 605.3, City shall, pursuant to its responsibilities
under state law, use its best efforts to resell the property or part thereof, as soon as and in such
manner the City shall find feasible and consistent with the objectives of such law and with the
Redevelopment Plan, to a qualified and responsible party or parties (as determined by City), that
will assume the obligation of making or completing the improvements, or such other
improvements in their stead, as shall be satisfactory to. City and in accordance with the uses
specified for the Site, or part thereof, in the Redevelopment Plan. Upon such resale of the
Property, subject to the rights of the lender as reasonably agreed to by the City, the proceeds
thereof shall be applied:
(a) First, to reimburse City, on its own behalf or on behalf of the City,
for all costs and expenses incurred by City, including but not limited to direct salaries of
personnel engaged in such action (but excluding City's overhead expenses) in connection with
the recapture, management, and resale.of the property (but less any income derived by the City
from the Site or part thereof in connection with such management); all taxes, assessments, and
water and sewer charges with respect to the Site; any payments made, or necessary to be made,
to discharge or prevent from attaching or being made any subsequent encumbrance or lien due to
obligations, defaults, or acts of Developer, its successors or transferees, any expenditures made
or obligation incurred, with respect to making or the completion of the improvements, or any
part thereof, and any amounts otherwise owing the City by Developer and its successor or
transferee; and
(b) Second, to reimburse Developer, its successor or, transferee up to
the amount equal to (1) the sum of the Purchase Price paid to City by Developer for the property;
(2) the costs incurred for the Project by Developer for the improvements existing on the property
at the time of the reentry and repossession; (3) less any gains or income withdrawn or made by
CGM DDA final Sen.DOC 34
Developer from such Site or the improvements thereon. Developer shall furnish to City bona
fide costs records, sufficient to support cost claimed.
(6) Any balance remaining after such reimbursement shall be retained by City
as its property.
(7) The rights established in this Section are to be interpreted in light of the
fact that City will convey the land to Developer for development and not for speculation in
undeveloped land.
SEC. 700 GENERAL PROVISIONS
Sec. 701 Notices, Demands and Communications Between the Parties
(1) Written notices, demands and communications between the City and the
Developer shall be sufficiently given if delivered by hand (and a receipt thereof is obtained or is.
refused to be given), if dispatched by registered or certified mail, postage prepaid, return receipt
requested, addressed to the designated person or persons at the principal offices of the City and
the Developer, as set forth at Sections 104.1 and 104.2, respectively, or be given by way
nationally recognized overnight delivery service. Such written notices, demands and
communications may be sent in the same manner to such other addresses as either party may
from time to time designate by mail as provided in this Section 701.
(2) Any written notice, demand or communication shall be deemed received
immediately if delivered by hand or messenger, three (3) business days fiom certification of date
received if delivered by registered or certified mail; and the next business day if sent by Federal
Express.or other nationally recognized overnight delivery service.
Sec. 702 Conflicts of Interest
(1) No member, official or employee of the City shall .have any personal interest,
direct or indirect, in this Agreement, nor shall any member, official or employee participate in
any decision relating to the Agreement which affects his personal interests or the interests of any
corporation, partnership or association in which he is directly or indirectly interested. No
member, official or employee of the City shall be personally liable to Developer, or any
successor in interest, in the event of any default or breach by the City, or for any amount which
may become due to the Developer or successor or on any obligations under the terms of this
Agreement. The Developer warrants that it has not paid or given, and will not pay or give, any
third person any money or other consideration for obtaining this Agreement.
Sec. 703 Enforced Delay; Extension of Times of Performance
(1) In addition to specific provisions of this Agreement, performance by either party
hereunder shall not be deemed to be in default, and all performance another dates specified in
this Agreement shall be extended, where delays or defaults are due to: war; insurrection; strikes;
lockouts; riots; floods; earthquakes; fires; casualties; acts of God; .acts of .the public enemy;
epidemics; quarantine restrictions; freight embargoes; lack of transportation; govermnental
restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor,
materials or tools; delays of any contractor, subcontractor or supplier; acts of omissions of the
other party;. acts or failures to act of the City of West Covina or any other public or governmental
CGM DDA Final Sen.DOC 35
agency or entity (except acts or failures to act of the City which shall not excuse performance by
the City); or any other causes beyond the control or without the fault of the party claiming an
extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an
extension of time for any such cause shall be for the period of the enforced delay and shall
commence to run from the time of cessation of the cause, if notice by the party claiming such
extension is sent to the other party within thirty (30) days of the commencement of the cause or
if the other party had actual notice of the delay. Times of performance under this Agreement
may also be extended in writing by the mutual agreement of the City and Developer.
(2) Notwithstanding the foregoing portion of this Section 703, Developer is not
entitled, pursuant to this Section 703, to an extension of time to perform because of past, present,
or future difficulty in obtaining suitable temporary or permanent financing for the development
of the Site, unless such delay is caused by City's refusal to amend this Agreement or accept the
reasonable and customary requests of the Developer's lender.
Sec. 704 Non -Liability of Officials and Employees of the Cif
(1) No member, official or employee of the City or the City shall be personally liable
to Developer or any successor in interest, in the event of any default or breach by the City (or the
City) or for any amount which may become due to Developer or its successors, or on any
obligations under the terms of this Agreement.
SEC. 800 EMPLOYMENT OPPORTUNITIES
Sec: 801 Job Opportunities Created by Developer
(1) To the extent permitted by relevant federal, state and local laws, and to the extent
qualified applicants apply, Developer will make reasonable efforts and shall request all tenants
consistent with the provisions of this Agreement, to make reasonable efforts to give West Covina
residents first hiring consideration related to the construction of the improvements on the
Properties. The Developer agrees and shall require its general contractor, any and all
subcontractor to use reasonable efforts to either work with the local Employment Development
Department ("EDD") or to hold on -site job fairs for any job employment opportunities.
Developer agrees and shall request the Project Site tenants to conduct local job fairs, advertise in
West Covina newspapers, distribute job notices to the high schools and colleges located in West
Covina, and use reasonable efforts to hire West Covina residents first. Developer's. failure to
hire West Covina residents pursuant to this Section shall not be a default under this Agreement.
SEC. 900 SPECIAL PROVISIONS
Sec. 901 Submission of Documents to the City for Approval
(1) Wherever this Agreement requires any party to approve any contract, document,
plan, specification, drawing or other matter, such approval shall be given in a prompt and timely
manner in writing and shall not be unreasonably withheld. If a disapproval is given, the reasons
for such disapproval must also be given in writing:
CGM DDA Final Sen.DOC 36
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•
Sec. 902 Amendments to this Agreement
(1) Developer and City agree to mutually consider reasonable requests for
amendments to this Agreement, provided said requests are consistent with this Agreement and
would not substantially alter the basic business terms included herein.
Sec. 903 Operating Memoranda
(1) , It is recognized that performance under this Agreement will require. a
considerable degree of cooperation between the City and Developer. It is further realized that
subsequent events may demonstrate that revisions will be required in the performance hereunder,
and that a certain degree of flexibility will be required. ' It is to preserve such flexibility that
certain provisions may have been delineated in this Agreement in general terms only, with the
understanding that more precise details may be sent forth in "Operating Memoranda" as may
be required from time to time. Each , Operating Memoranda shall be approved by the City
Manager and Developer's designated representative and shall be, attached hereto as an
addendum; and become a part hereof, and may be further changed and amended from time to
time as necessary upon approval by the City and Developer.
Sec. 904 Real Estate Commissions
(1) The . City and the Developer each represent to the other party that it has not
engaged the services of any finder or broker and that it is not liable for any real estate
commissions, broker's fees, or finder's fees which may accrue by means of the acquisition of all
or pant of the Site, and agrees to hold harmless the other party from such commissions or fees as
are alleged to be due from the party making such representations.
Sec. 905 Survivor Provisions
(1) After issuance of a Release of Construction Covenants, with regard to any parcel
or any building, all of the terms, covenants, agreements, or conditions set forth in this
Agreement, relating to such parcel or building, shall cease and terminate except as otherwise
provided in this agreement or recorded against properties
Sec. 906 Reservation of Discretion
(1) The Parties agree and acknowledge that nothing in this Agreement in any respect
does or shall be construed to affect or prejudge the exercise of the City's discretion concerning
consideration of any submittal by the Developer or any other party. Further, nothing in this
Agreement in any respect does or shall be construed. to affect or prejudge the City's discretion to
consider, negotiate, or undertake the Project or any required approvals necessary by the laws,
rules, and regulations governing the development of property.
(2) By its execution of this Agreement, the City is not committing itself to or
agreeing to undertake any other acts or activities requiring the subsequent independent exercise
of discretion by the City or any City or department thereof. Except as specifically provided in
this Agreement, the City shall not be responsible for any costs or expenses incurred by the
Developer pursuant to this Agreement, nor shall the City be responsible for any potential lost
profits of the Developer.
CGM DDA Final Sen.DOC 37
•
(3) Developer is aware, understands, and acknowledges that City is by law required
to exercise their sole unfettered discretion in approving or denying any land use, development or
building permit approvals required for the Project. Neither this Agreement nor any other
agreement with Developer obligates City to approve, disapprove or consider the Development
Entitlements for the Project in a particular manner.
Sec. 907 Costs and Attorneys' Fees.
(1) In any action between the Parties to interpret, enforce, reform, modify, rescind, or
otherwise in connection with any of the terns or provisions of this Agreement, the prevailing
party in the action shall be entitled, in addition to damages, injunctive relief, or any other relief to
which it might be entitled, reasonable costs and expenses including, without limitation, litigation
costs and reasonable attorneys' fees.
SEC. 1000 ENTIRE AGREEMENT. WAIVERS
(1) This Agreement is executed in four (4) duplicate originals, each of which is
deemed to be an original. This Agreement constitutes the entire Agreement and the
understanding of the parties. The attachments. shall be a part of this Agreement, but if the
attachments conflict with this Agreement, then the provisions of this Agreement shall prevail.
(2) This Agreement integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements between the parties or
their predecessors in interest with respect to all or any part of the subject matter hereof.
(3) The waivers of the provisions of this Agreement must be in writing`and executed
by the appropriate authorities of the City and Developer, and all amendments hereto must be in
writing, approved by the City Council and executed by the appropriate authorities of the City and
Developer.
(4) Developer acknowledges that it has had ample opportunity for review and
approval of this document by its attorney, and that.any waiver of representation is a result of
independent decision. Developer further acknowledges that City Counsel is acting solely on
behalf of the City.
SEC. 1100 TIME FOR ACCEPTANCE OF AGREEMENT
(1) This Agreement shall be executed by Developer prior to approval by City.
(Signature pages follow)
CGM DDA Final Sen.DOC 38
0
IN WITNESS WHEREOF, the City and the Developer have signed this Agreement on
the date set forth herein below.
CITY OF WEST COVINA
By:
City Manager
Date:
ATTEST
Secretary
APPROVED AS TO FORM:
City Counsel
CGM DDA Final Sen.DOC 39
CGM DEVELOPMENT, INC.
C
By:
Peichin Lee, Pres> ent
Date: . pem , � i �2ze /Z
is 0
ATTACHMENT NO. I
SITE MAP OF PROPERTY
1
CGM DDA Final Sen.DOC
•
ATTACHMENT NO. 2-A
OFFICE SITE LEGAL DESCRIPTION
APPENDIX A
LEGAL DESCRIPTION
THAT PORTION OF LOT 123 OF E.J. BALDWIN'S FOURTH SUBDIVISION IN THE CITY OF
WEST COVINA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON
MAP RECORDED IN BOOK 8, PAGES 186 AND 187, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, BEING DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID LOT 123; THENCE NORTH
41"25'10" EAST, A DISTANCE OF 40.00 FEET, TO THE NORTHERLY LINE OF WEST
COVINA PARKWAY AS SHOWN ON RECORD OF SURVEY, RECORDED IN BOOK 188,
PAGE 58, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE NORTHERLY ALONG
SAID NORTHERLY LINE OF WEST COVINA PARKWAY; NORTH 45"00'25" WEST, A
DISTANCE OF 160.84 FEET; THENCE NORTH 41"24'45" EAST, A DISTANCE OF 5.00 FEET;
THENCE NORTH .46055'12' WEST, A DISTANCE OF 18.68 FEET TO THE POINT OF
INTERSECTION OF SAID WESTERLY LINE WITH THE NORTHWESTERLY LINE OF THAT
PARCEL OF' LAND DESCRIBED IN DEED TO THE COUNTY OF LOS ANGELES,
RECORDED IN BOOK D5138, PAGE 192, OF OFFICIAL RECORDS, IN THE OFFICE OF
SAID COUNTY RECORDER; THENCE NORTH 46"55'12" WEST, ALONG SAID NORTHERLY
LINE OF THE WEST COVINA PARKWAY, A DISTANCE OF 194.00 FEET TO THE TRUE
POINT OF BEGINNING; THENCE NORTH 46055'12' WEST, ALONG SAID NORTHERLY
LINE OF THE WEST COVINA PARKWAY, A DISTANCE OF 129.82 FEET, TO THE
BEGINNING OF A TANGENT CURVE, HAVING A RADIUS OF 25.00 FEET, BEING
CONCAVE EASTERLY, THENCE NORTHERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 89"51 02", AN ARC DISTANCE OF 39.20 FEET, TO THE BEGINNING
OF A COMPOUND CURVE, HAVING A RADIUS OF 264.50 FEET, BEING CONCAVE
SOUTHEASTERLY; THENCE EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL
ANGLE OF 40"3343", AN ARC DISTANCE OF 187.25 FEET, TO THE BEGINNING OF A
COMPOUND CURVE, HAVING A RADIUS OF 4844.77 FEET, BEING CONCAVE
SOUTHERLY. THENCE EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE
OF 0034'51", AN ARC DISTANCE OF 49.11 FEET; THENCE SOUTH 5"46'13" EAST, A
DISTANCE OF 61.19 FEET, TO THE BEGINNING OF. A TANGENT CURVE, HAVING A
RADIUS OF 40.00 FEET, BEING CONCAVE NORTHWESTERLY, THENCE SOUTHERLY
ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 48"51'01", AN ARC DISTANCE OF
34.10 FEET; THENCE SOUTH 43004'48" WEST, A DISTANCE OF 163.98 FEET, TO THE
TRUE POINT OF BEGINNING.
CONTAINS AN AREA OF APPROXIMATELY 28,192 SQUARE FEET OR 0.65 ACRES.
CGM DDA Final Sen.DOC
ATTACHMENT NO.2-B
OFFICE PARKING LOT DESCRIPTION
APPENDIX A_
LEGAL DESCRIPTION
FOR
OFFICE PARKING LOT
THAT PORTION OF LOT 123 OF E.J. BALDWIN'S FOURTH SUBDIVISION IN THE CITY OF
WEST COVINA, COUNTY, OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON
MAP RECORDED IN BOOK 8, PAGES 186 AND 187, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, BEING DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID LOT 123; THENCE NORTH
41°25'10" EAST, A DISTANCE OF 40.00 FEET, TO THE NORTHERLY LINE OF WEST
COVINA PARKWAY, AS SHOWN ON RECORDS OF SURVEY, RECORDED IN BOOK 188,
PAGE 58, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE NORTHERLY ALONG
SAID NORTHERLY LINE OF WEST COVINA PARKWAY; NORTH 45000'25" WEST, A
DISTANCE OF 160.84 FEET; THENCE NORTH 4102445" EAST, A DISTANCE OF 5.00 FEET;
THENCE NORTH 46055'12" WEST, A DISTANCE OF 18.68 FEET TO THE POINT OF
INTERSECTION OF SAID WESTERLY LINE WITH THE NORTHWESTERLY LINE OF THAT
PARCEL OF LAND DESCRIBED IN DEED TO THE COUNTY OF LOS ANGELES,
RECORDED IN BOOK D5138, PAGE 192, OF OFFICIAL RECORDS, IN THE OFFICE OF
SAID COUNTY RECORDER, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING;
THENCE NORTH 46055'12" WEST, ALONG SAID NORTHERLY LINE OF WEST COVINA
PARKWAY, A DISTANCE OF 194.00.FEET; THENCE NORTH 4300448" EAST, A DISTANCE
OF 163.98 FEET, TO THE BEGINNING OF, A TANGENT CURVE, HAVING A RADIUS OF
40.00 FEET, BEING CONCAVE NORTHWESTERLY, THENCE NORTHERLY ALONG SAID
CURVE, THROUGH A CENTRAL ANGLE OF 48051'01", AN ARC DISTANCE OF 34.10 FEET;
THENCE NORTH 504613" WEST, A DISTANCE OF 71.69 FEET, TO A POINT IN THE
SOUTHERLY RIGHT-OF-WAY LINE OF GARVEY AVENUE, AS SHOWN ON RECORD OF
SURVEY RECORDED IN BOOK 188, PAGE 58, BEING A POINT IN A CURVE, HAVING A
RADIUS OF 4855.27 FEET, BEING CONCAVE SOUTHERLY AND A RADIAL LINE TO SAID
POINT BEARS SOUTH 5056'51" EAST; THENCE EASTERLY ALONG SAID SOUTHERLY
RIGHT-OF-WAY LINE OF GARVEY AVENUE, THROUGH A CENTRAL ANGLE OF 302416",
AN ARC DISTANCE OF 288.50 FEET; THENCE SOUTH 401148" EAST, A DISTANCE OF
202.32 FEET; THENCE SOUTH 4402943" WEST, A DISTANCE OF 40.22 FEET; THENCE
NORTH 7701448" WEST, A DISTANCE OF 101.95 FEET; THENCE SOUTH 41025'10" WEST,
A:DISTANCE OF 224.49 FEET, TO THE TRUE POINT OF BEGINNING.
CONTAINS AN AREA OF APPROXIMATELY 89,644 SQUARE FEET OR 2.06 ACRES.
CGM DDA Final Sen.DOC
ATTACHMENT NO. 2-C
AREA D PARKING LOT DESCRIPTION
Approximately 62,270 square feet area on County of Los Angeles property.
APN 8474-001-907
CGM DDA Final Sen.DOC
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0
WHEN RECORDED RETURN TO .
MAIL TAX STATEMENTS TO:
ATTACHMENT NO.3
GRANT DEED
THE AREA ABOVE IS RESERVED FOR RECORDER'S USE
No recording fee required; this document exempt
from fee pursuant to Section 6103 of the
California Government Code
GRANT DEED
For a valuable consideration, receipt of which is hereby acknowledged.
THE CITY OF WEST COVINA, a public body, corporate and politic ("Grantor"),
hereby grants to CGM DEVELOPMENT, INC., a California corporation ("Grantee"), that
certain real property described in Exhibit "A" attached hereto and incorporated herein by this
reference ("Property").
1. The Grantee covenants and agrees to use, occupy and maintain the Property only
for the construction and operation of uses permitted by the City of West Covina General Plan,
the applicable zoning of the City of West Covina, and related on- and off -site improvements, as
set forth in that certain Disposition and Development Agreement, dated ,
(the "DDA") between Grantor and Grantee.
2. The Grantee covenants and agrees to use, operate and maintain the Property only
for the construction and operation of an office building with ancillary uses as permitted by the
DDA for a period of twenty years from the date the Release of Construction Covenants is
recorded pursuant to the DDA.
3. Developer covenants and agrees to comply with all of the covenants contained in
the DDA, and specifically those covenants contained in sections 501,502, 503 and 504 of the
DDA.
CGM DDA Final Sen.DOC
4. The Grantee covenants by and for itself and any successors in interest that there
shall be no discrimination against or segregation of any person or group of persons on account of
race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Grantee
itself or any person claiming under or through it establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use of
occupancy of tenants, lessees, subtenants, sublessees or vendees in the Property.
5. No violation or breach of the covenants, conditions, restrictions, provisions or
limitation contained in this Grant Deed shall defeat or render invalid or in any way impair the
lien or charge of any mortgage, deed of trust or other financing or security instrument permitted
by the DDA; provided, however, that any successor of Grantee to the Property shall be bound by
such remaining covenants, conditions, restrictions, limitations and provisions, whether such
successor's title was acquired . by foreclosure, deed in lieu of foreclosure, trustee's sale or
otherwise.
6. The covenants contained in Paragraphs 1 and 2 of this Grant Deed shall remain in
effect until the expiration of twenty (20) years from the issuance of a Release of Construction
Covenants for the Property. The covenants contained in Paragraph 4 of this Grant Deed shall
remain in effect in perpetuity or, if the state law requiring such covenants changes such that
those covenants are not required to remain in effect in perpetuity, those covenants shall terminate
at such earlier date as may be pennitted by state law.
7. The covenants in Paragraphs 1, 2, 3, 4 and 5 of this Grant Deed shall be binding
for the benefit . of the Grantor, its successors and assigns, the City of West Covina and any
successor in interest to said parties. Such covenants shall run in favor of the Grantor and such
aforementioned parties for the entire period during which such covenants shall be in force and
effect, without regard to whether the Grantor is or remains an owner of any land or interest
therein to which such covenants relate. The Grantor and such aforementioned parties, in the
event of any breach of any such covenants, shall have the right to exercise all of the rights and
remedies, and to maintain. any actions at law or suits in equity or contained in this Grant Deed
shall be.for the benefit of and shall be enforceable only by the.Grantor, its successors and such
aforementioned parties.
8. In the event of any express conflict between this Grant Deed or the DDA, the
provisions of this Grant Deed shall control.
9. The Covenants and Conditions of this Grant Deed shall be deemed to be
covenants running with the land and shall bind future purchasers, encumbrances and transferees.
10. Section 605.3 of the DDA grants the City the right of reentry and reverter upon
specified conditions and restrictions. All such rights provided in Section 605.3 shall be deemed
void upon the issuance and recordation of the Release of Construction Covenants pursuant to the
DDA.
11. Section 210 of the DDA grants the City an Option to Repurchase the Property
upon the occurrence of specified events. All such rights provided in Section 210 shall be deemed
CGM DDA final Sen.DOC
void upon the issuance and recordation of the Release of Construction Covenants pursuant to the
DDA.
12. If legal proceedings are initiated to enforce the rights, duties or obligations of any
of the covenants set forth in this Grant Deed, then the prevailing party in such proceeding shall
be entitled to collect its reasonable attorney fees and costs from the other party in addition to any
other damages or relief obtained in such proceedings.
13. In the event that any provision of this Grant Deed is held to be invalid or unlawful
by a final judgment of a court of competent jurisdiction, such invalidity shall not affect the
validity of any other provision of this Grant Deed.
[Signatures on following page)
3
CGM DDA Final Sen.DOC
IN WITNESS WHEREOF, the Grantor has caused this Grant Deed to be executed by its
authorized representative(s) on this _ day of , 2011.
CITY OF WEST COVINA
Andrew Pasmant, City Manager
ATTEST:
Secretary
APPROVED AS TO FORM:
City Attorney
State of California )
County of Los Angeles )
On before me, (here
insert name and title of the officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within. instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the.person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
4
CUM DDA Final Sen.DOC
State of California )
County of Los Angeles )
On before me, (here
insert name and title of the officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature
CGM DDA final Sen.DOC
(Seal)
0 •
CERTIFICATE OF ACCEPTANCE OF
GRANT DEED
The undersigned hereby acknowledges acceptance by CGM Development, Inc., the Grantee in
the within Grant Deed, of the delivery of the subject Property described in the within Grant Deed
from the City of West Covina, subject to all of the conditiona, covenants and restrictions
expressly set forth or incorporated within the Grant Deed.
"DEVELOPER"
R-A
Peichin, Lee
President
CGM Development, Inc.
Date:
State of California )
County of Los Angeles )
On before me, (here
insert name and title of the officer), personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature
State of California )
County of Los Angeles )
(Seal)
On before me, (here
insert name and title of the officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
6
CGM DDA Final Sen.DOC
C�
•
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature
CGM DDA Final Sen.DOC
(Sea])
•
0
Exhibit "A" to Grant Deed
LEGAL DESCRIPTION OF THE OFFICE SITE PROPERTY
APPENDIX A
LEGAL DESCRIPTION
THAT PORTION OF LOT 123 OF E.J. BALDWIN'S FOURTH SUBDIVISION IN THE CITY OF
WEST COVINA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON
MAP RECORDED IN BOOK.8, PAGES 186 AND 187, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, BEING DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID LOT 123; THENCE NORTH
41025'10" EAST, A DISTANCE OF 40.00 FEET, TO THE NORTHERLY LINE OF WEST
COVINA PARKWAY AS SHOWN ON RECORD OF SURVEY, RECORDED IN BOOK 188,
PAGE 58, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE NORTHERLY ALONG,
SAID NORTHERLY LINE OF WEST COVINA PARKWAY; NORTH 45"00'25' WEST, A
DISTANCE OF 160.84 FEET; THENCE NORTH 41024'45" EAST, A DISTANCE OF 5.00 FEET;
THENCE NORTH 46"55'12" WEST, A DISTANCE OF 18.68 FEET TO THE POINT OF
INTERSECTION OF SAID WESTERLY LINE WITH THE NORTHWESTERLY LINE OF THAT
PARCEL OF LAND DESCRIBED IN DEED TO THE COUNTY OF LOS ANGELES,
RECORDED IN BOOK D5138, PAGE 192, OF OFFICIAL RECORDS, IN THE OFFICE OF
SAID COUNTY RECORDER; THENCE NORTH 46"55'12' WEST, ALONG SAID NORTHERLY
LINE OF THE WEST COVINA PARKWAY, A DISTANCE OF 194.00 FEET TO THE TRUE
POINT OF BEGINNING; THENCE NORTH 46055'12' WEST, ALONG SAID NORTHERLY
LINE OF THE WEST COVINA PARKWAY, A DISTANCE OF 129.82 FEET, TO THE
BEGINNING OF A TANGENT CURVE, HAVING A RADIUS OF 25.00 FEET, .BEING
CONCAVE EASTERLY, THENCE NORTHERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 89051`02", AN ARC DISTANCE OF 39.20 FEET, TO THE BEGINNING
OF A COMPOUND CURVE, HAVING A RADIUS OF 264.50 FEET, BEING CONCAVE
SOUTHEASTERLY; THENCE EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL
ANGLE OF 40033'43", AN ARC DISTANCE OF 187.25 FEET, TO THE BEGINNING OF A
COMPOUND CURVE, HAVING A RADIUS OF 4844.77 FEET, BEING CONCAVE
SOUTHERLY, THENCE EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE
OF 0034'51", AN ARC DISTANCE OF 49.11 FEET; THENCE SOUTH 5"46'13' EAST, A
DISTANCE OF 61.19 FEET, TO THE BEGINNING OF A TANGENT CURVE, HAVING A
RADIUS OF 40.00 FEET, BEING CONCAVE NORTHWESTERLY, THENCE SOUTHERLY
ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 48051'01", AN ARC DISTANCE OF
34.10 FEET; THENCE SOUTH 43004'48" WEST, A DISTANCE OF 163.98 FEET, TO THE
TRUE POINT OF BEGINNING.
CONTAINS AN AREA OF APPROXIMATELY 28,192 SQUARE FEET OR 0.65 ACRES.
CGM DDA Final Sen.DOC
•
n
U
WHEN RECORDED RETURN TO
City of West Covina
MAIL TAX STATEMENTS TO:
ATTACHMENT NO. 4
MEMORANDUM OF DDA
THE AREA ABOVE IS RESERVED FOR RECORDER'S USE
No recording fee required; this document
exempt from fee pursuant to Section 6103 of
the California Government Code
MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
This Memorandum of Disposition and Development Agreement is recorded to give
notice of that certain Disposition and Development Agreement ("DDA") dated
, 2011, and any amendments thereto, by and between the City of West Covina
("City") and CGM DEVELOPMENT, INC., a ("Developer").
The DDA provides for the sale by the City to Developer of approximately 30,574 square
feet of real property generally located 'at the southeast corner of West Covina Parkway and
Garvey Avenue South, West Covina, California (the "Office Site Property"), legally described
on Exhibit "A" attached hereto, for the development of a four-story office building with ancillary
uses; construction of approximately 76,400 square feet of associated parking on City -owned
property and leased to the Developer; and new approximately 62,270 square feet parking for the
Los Angeles County Library ("Area D Parking Lot"). All of the terms and conditions of the
DDA are incorporated into this Memorandum of Disposition and Development Agreement.
Section 605.3 of the DDA grants the City the right of reentry and reverter upon specified
conditions and restrictions. All such rights provided in Section 605.3 shall be deemed void upon
the issuance and recordation of the Release of Construction Covenants pursuant to the DDA.
Section 210 of the DDA grants the City an Option to Repurchase the Property upon the
occurrence of specified events. All such rights provided in Section 210 shall be deemed void
CGM DDA Final Sen.DOC
upon the issuance and recordation of the Release of Construction Covenants- pursuant to the
DDA.
IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum on the
same date as that of the Agreement first written above.
"DEVELOPER"
CGM DEVELOPMENT, INC.
By:
Peichin Lee, President
Date:
State of California )
County of Los Angeles )
"CITY"
City of West Covina
By:
Andrew Pasmant, City Manager
Date:
Attest:
City Clerk
On before me, (here
insert name and title of the officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature
CGM DDA Final Sen.DOC
(Seal)
%A
0
•
State of California )
County of Los Angeles )
On before rne, (here
insert name and title of the officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose nante(s) Ware subscribed to the
within instrument and acknowledged to me that he/she/they executed the sarne in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature
CGM DDA Final Sen.DOC
(Seal)
EXHIBIT "A"
to Memorandum of DDA
(Legal Description of Property)
APPENDIX A
LEGAL DESCRIPTION
THAT PORTION OF LOT 123 OF E.J. BALDWIN'S FOURTH SUBDIVISION IN THE CITY OF
WEST COVINA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON
MAP RECORDED IN BOOK 8, PAGES 186 AND 187, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, BEING DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID LOT 123; THENCE NORTH
41"25'10" EAST, A DISTANCE OF 40.00 FEET, TO THE NORTHERLY LINE OF WEST
COVINA PARKWAY AS SHOWN ON RECORD OF SURVEY, RECORDED IN BOOK 188,
PAGE 58, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE NORTHERLY ALONG
SAID NORTHERLY LINE OF WEST COVINA PARKWAY; NORTH 45"00'25" WEST, A
DISTANCE OF 160.84 FEET; THENCE NORTH 41"24'45" EAST, A DISTANCE OF 5.00 FEET;
THENCE NORTH 46"55'12" WEST, A DISTANCE OF 18.68 FEET TO THE POINT OF
INTERSECTION OF SAID WESTERLY LINE WITH THE NORTHWESTERLY LINE OF THAT
PARCEL OF LAND DESCRIBED IN DEED TO THE COUNTY OF LOS ANGELES,
RECORDED IN BOOK D5138, PAGE 192, OF OFFICIAL RECORDS, IN THE OFFICE OF
SAID COUNTY RECORDER; THENCE NORTH 46"55'12' WEST, ALONG SAID NORTHERLY
LINE OF THE WEST COVINA PARKWAY, A DISTANCE OF 194.00 FEET TO THE TRUE
POINT OF BEGINNING; THENCE NORTH 46055'12' WEST, ALONG SAID NORTHERLY
LINE OF THE WEST COVINA PARKWAY, A DISTANCE OF 129.82 FEET, TO THE
BEGINNING OF A TANGENT CURVE, HAVING A RADIUS OF 25.00 FEET, BEING
CONCAVE EASTERLY, THENCE NORTHERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 89051'02', AN ARC DISTANCE OF 39.20 FEET, TO THE BEGINNING
OF A COMPOUND CURVE, HAVING A RADIUS OF 264.50 FEET, BEING CONCAVE
SOUTHEASTERLY; THENCE EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL
ANGLE OF 40033'43", AN ARC DISTANCE OF 187.25 FEET, TO THE BEGINNING OF A
COMPOUND CURVE, HAVING A RADIUS OF 4844.77 FEET, BEING CONCAVE
SOUTHERLY, THENCE EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE
OF 0034'51", AN ARC DISTANCE OF 49.11 FEET; THENCE SOUTH 5"46'13" EAST, A
DISTANCE OF 61.19 FEET, TO THE BEGINNING OF A TANGENT CURVE, HAVING A
RADIUS OF 40.00 FEET, BEING CONCAVE NORTHWESTERLY, THENCE SOUTHERLY
ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 48"51'01", AN ARC DISTANCE OF
34.10 FEET; THENCE SOUTH 43004'48" WEST, A DISTANCE OF 163.98 FEET, TO THE
TRUE POINT OF BEGINNING.
CONTAINS AN AREA OF APPROXIMATELY 28,192 SQUARE FEET OR 0.65 ACRES.
4
CGM DDA Final Sen.DOC
ATTACHMENT NO. 5
AREA D PARKING LOT SITE PLAN
I
CGM DDA Final Sen.DOC
ATTACHMENT NU: 6
ELEVATION,
CGM DDA Final Sen.DOC
• 0
ATTACHMENT NO.7
SCOPE OF DEVELOPMENT
The following obligations shall be performed by Developer:
Construct the new 129-space library parking lot (Lot "D") on County owned property,
located adjacent and to the south of the library building.
Construction of the four-story, approximately 55,000 square feet, professional office
building and the 218-space office building parking lot, with all related on -site
improvements.
Construction of all project related off -site improvements including utilities and
curb/street work to support the proposed project.
4. Installation of landscaping including trees and other vegetation approved for the project.
CGM DDA Final Sen.DOC
ATTACHMENT NO.8
SCHEDULE OF PERFORMANCE
No.
Event/Performance
Timeline
Tar et Date
1
Effective Date of
The date of the City Council meeting
December 20,
Agreement
approving this agreement.
2011
2
Open Escrow (Sec. 201)
Within 15-days from Effective Date of the
January 4, 2012
DDA. Deposit $50,000 as good faith
deposit.
3
Developer's Due
Commencing upon escrow opening date
March 31, 2012
Diligence Period (Sec.
& terminating 90-days thereafter.
206.1)
4
Provide Evidence of
Prior to transfer of land of the Office Pad.
On or before
Financing (Sec. 202.12)
approx. June 26,
2012
5
Record Metes & Bounds
On or prior to close of escrow.
On or before
for the Office Pad (Sec.
approx. June 26,
202.7(2))
2012
6
Contact local
Prior to start of construction.
Before June 11,
employment
2012
.development department
(EDD) or hold on -site job
fairs to make reasonable
efforts to first hire West
Covina residents (Section
801)
7
Commence Construction
Not later than 180 days after the effective
On or before June
(Sec. 105.2) — Lot D 129-
date of the DDA or within 20-days of
11, 2012
Space Library Parking
giving of the Notice of Commencement
Lot
pursuant to Section 23 of the County
Ground Lease, whichever is later. Start
construction of Lot D first. Complete
construction of Lot D prior to any demo,
grading or other activities on the 100-
space parking lot (Lot A) (Sec. 301.1(4)).
8
Deposit Promissory Note
Minimum of 2-days before closing of
On or before
(Sec. 201(1)(b))
escrow.
approx. June 24,
2012
9
Deposit balance of
Minimum of 2-days before closing of
On or before
CGM DDA Final Sen.DOC
Purchase Price (Sec.
escrow.
approx June 24,
201(1)(c))
2012
10
Close of Escrow (Sec.
Not later than six months after Opening of
On or before
202.2)
Escrow or within 10 days after giving of
approx. June 26,
the Notice of Commencement pursuant to
2012
Section 2.13 of the County Ground Lease,
whichever is later.
1 l
Commence Construction
Construction of the office parking lot (Lot
— Office Pad & Office
A) to commence after completion of Lot
Parking (Section
D.
301.1(4))
12
Promissory Note Due
Within 6-months from close of escrow.
On or before
(Sec. 201(1)(b))
approx.
December 16,
2012
13
Completion of the
Within 24-months from construction
Approx. May 17,
Project
commencement date.
2014
CGM DDA Final Sen.DOC
0
•
ATTACHMENT NO. 9
RELEASE OF CONSTRUCTION COVENANTS
WHEN RECORDED RETURN TO
THE AREA ABOVE 1S RESERVED FOR RECORDER'S USE
No recording fee required; this document exempt
from fee pursuant to Section 6103 of the
California Government Code
RELEASE OF CONSTRUCTION COVENANTS
WHEREAS, on or about , the City of West Covina, a public
body corporate and politic, hereinafter referred to as "City," and CGM Development, Inc.,
hereinafter referred to as "Developer," entered into that certain Disposition and Development
Agreement (the `'Agreement"), dated , providing for the development
of certain real property (the "Property") situated in the City of West Covina, California,
described on Exhibit "A" attached hereto;
WHEREAS, the Agreement requires that the .City furnish Developer with a Release of
Construction Covenants upon completion of construction, and that said Release be in such form
as to permit recordation in the Los Angeles County Recorder's Office;
WHEREAS, such Release shall be conclusive determination of satisfactory completion
of the construction of the Developer Improvements, as that term is defined in the Agreement, on
the Property, as required by the Agreement; and
WHEREAS, the City has conclusively determined that construction of the Developer
Improvements has been satisfactorily completed.
NOW THEREFORE,
1. As provided in the Agreement, the City does hereby certify that construction of the
Developer Improvements has been fully performed and satisfactorily completed. .
CGM DDA Final Sen.DOC
0 0
2. The conditions and all rights and obligations under the Agreement are terminated with
respect to the Developer Improvements constructed on the Project site, except as set forth
in the Agreement. .
After recordation of this Release of Construction Covenants, any person or entity then
owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the
Project site will not (because of such ownership, purchase lease, or acquisition) incur any
obligation or liability under the Agreement, except that such party shall be bound by any
and all of the covenants, conditions, and restrictions, provisions or limitations set forth in
the Grant Deed, dated
This Release of Construction Covenants shall not constitute evidence with or satisfaction
of any obligation of the Developer to any holder of a mortgage, or any insurer of a
mortgage securing money loaned to finance Developer Improvements to the Project, nor
any part thereof. This Release of Construction Covenants is not a notice of completion as
referenced in California Civil Code § 3093.
The Recitals above are incorporated in full as part of the substantive text of this Release
of Construction Covenants.
IN WITNESS WHEREOF, the City has executed this release this day of
, 2011.
ATTEST:
CITY OF WEST COVINA, a public body
corporate and politic
Andrew Pasmant, City Manager
APPROVED AS TO FORM:
City Clerk City Attorney
State of California )
County of Los Angeles )
On before me, (here
insert name and title of the officer), personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
2
CGM DDA Final Sen.DOC
0
Signature
CGM DDA Final Sen.DOC
(Seal)
0
EXHIBIT "A" TO RELEASE OF CONSTRUCTION COVENANTS
Legal Description of Property
APPENDIX A
LEGAL DESCRIPTION
THAT PORTION OF LOT 123 OF E.J. BALDWIN'S FOURTH SUBDIVISION IN THE CITY OF
WEST COVINA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS SHOWN ON
MAP RECORDED IN BOOK 8, PAGES 186 AND 187, OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, BEING DESCRIBED AS FOLLOWS:
COMMENCING AT THE MOST SOUTHERLY CORNER OF SAID LOT 123; THENCE NORTH
41"25'10" EAST, A DISTANCE OF 40.00 FEET, TO THE NORTHERLY LINE OF WEST
COVINA PARKWAY AS SHOWN ON RECORD OF SURVEY, RECORDED IN BOOK 188,
PAGE 58, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE NORTHERLY ALONG
SAID NORTHERLY LINE OF WEST COVINA PARKWAY; NORTH 4500025" WEST, A
DISTANCE OF 160.84 FEET; THENCE NORTH 41024'45" EAST, A DISTANCE OF 5.00 FEET;
THENCE NORTH 46"55'12" WEST, A DISTANCE OF 18.68 FEET TO THE POINT OF
INTERSECTION OF SAID WESTERLY LINE WITH THE NORTHWESTERLY LINE OF THAT
PARCEL OF LAND DESCRIBED IN DEED TO THE COUNTY OF LOS ANGELES,
RECORDED IN BOOK D5138, PAGE 192, OF OFFICIAL RECORDS, IN THE OFFICE OF
SAID COUNTY RECORDER; THENCE NORTH 46"55'12" WEST, ALONG SAID NORTHERLY
LINE OF THE WEST COVINA PARKWAY, A DISTANCE OF 194.00 FEET TO THE TRUE
POINT OF BEGINNING; THENCE NORTH 46055'12' WEST, ALONG SAID NORTHERLY
LINE OF THE WEST COVINA PARKWAY, A DISTANCE OF 129.82 FEET, TO THE
BEGINNING OF A TANGENT CURVE, HAVING A RADIUS OF 25.00 FEET, BEING
CONCAVE EASTERLY, THENCE NORTHERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 89"51'02', AN ARC DISTANCE OF 39.20 FEET, TO THE BEGINNING
OF A COMPOUND CURVE, HAVING A RADIUS .OF 264.50 FEET, BEING CONCAVE
SOUTHEASTERLY; THENCE EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL
ANGLE OF 40"33'43", AN ARC DISTANCE OF 187.25 FEET, TO THE BEGINNING OF A
COMPOUND CURVE, HAVING A RADIUS OF 4844.77 FEET, BEING CONCAVE
SOUTHERLY, THENCE EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE
OF 0°34'51", AN ARC DISTANCE OF 49.11 FEET; THENCE SOUTH 5"46'13" EAST, A
DISTANCE OF 61.19 FEET, TO THE BEGINNING OF A TANGENT CURVE, HAVING A
RADIUS OF 40.00 FEET, BEING CONCAVE NORTHWESTERLY, THENCE SOUTHERLY
ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 48051'01", AN ARC DISTANCE OF
34.10 FEET; THENCE SOUTH 43004'48" WEST, A DISTANCE OF 163.98 FEET, TO THE
TRUE POINT OF BEGINNING.
CONTAINS AN AREA OF APPROXIMATELY 28,192 SQUARE FEET OR 0.65 ACRES.
CGM DDA Final Sen.DOC
ATTACHMENT NO. 10
DECLARATION FOR OFFICE PARKING LOT
CGM DDA Final Sen.DOC
Recording requested by
and when recorded return to:
PARKING EASEMENT AND DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
1
26211.00018\7066956.1
TABLE OF CONTENTS
RECITALS......................................................:........................................:............:......:................. 3
1.
PARKING Easement........................:...................................................................................:.
3
2.
TERM OF EASEMENT AND DECLARATION...................:..:...........................................
4
3.
CONSTRUCTION OF OFFICE PARKING LOT IMPROVEMENTS .................................
4
4.
USE OF THE OFFICE PARKING LOT
5
5.
................................................................................
OPERATION AND MAINTENANCE OF THE OFFICE PARKING LOT ...:.....................
5
6.
Insurance.................................................................................................
6
7.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS .........................................
6
8.
MECHANICS' LIENS.........:..................................................................................................
7
9.
TAXES AND ASSESSMENTS.:......:..........................................::............
7
10. DEFAULT IN PERFORMANCE :......................:......................
II:
MODIFICATION..................................................::........................::...............................8
12. MISCELLANEOUS PROVISIONS.................:.................................................................
8
12.1 Binding Successors
on . ....................... ......:::......................:.....:................::....................
8
12.2 Assignment and Assumption . ......................... ..................................................................
9
12.3 Mortgagee Protection......................:.............:................................................................. 9
12.4 Severability ........... :.........
12.5 Attorney's Fees.........................:...........................................................:.......................... 9
12.6 Eminent Domain. ................................ .........
12.7 Captions. .........................................................................................
10
12.8 Force Majeure...........................................::::...................... ..........................................
10
12.9 No Merger of Estates..............:.....................................................................................
10
12.1.0 Liens............:..:::::.......................:.............................................................................10
12.11 Mutual Waivers....:..
.:......................:............................................:..........................
11
12.12 Further Assurances.....................................................................:..............................
11
12.13 Notices...............:........:.......:.....................................................................................11
12.14 Existing and Future Agreements ................................................:
11
2
26211.00018\7066956.1
THIS PARKING' EASEMENT
AND DECLARATION OF COVENANTS,
CONDITONS .AND RESTRICTIONS (this "Declaration") is dated for reference purposes
only as of and made and entered into by and between the
CITY OF WEST COVINA, a California municipal corporation ("City"), and CGM
DEVELOPMENT, INC., a California corporation ("Developer").
RECITALS
A. City is the Owner of certain real property located in the City of West aCovina,
County of Los Angeles, State of California, more particularly described on Exhibit "A-1"
attached hereto and incorporated herein by this reference (thc "City Property");
B. City and Developer have entered into a Disposition and Development
Agreement dated ("DDA") for the purchase by Developer of a
portion of the City Property ("Developer Property") and development of the Developer
Property with an office complex ("Project"). The Developer Property is more particularly
described on Exhibit "A-211, attached hereto and incorporated herein by this reference.
C. Pursuant to the terms of the DDA the purchase price for the Developer Property
includes the purchase of an easement and declaration of covenants conditions and restrictions
for the construction and use of a portion of the City Property for a parking lot ("Office Parking
Lot"). The Office Parking Lot property is more particularly described on Exhibit "B" attached
hereto and incorporated herein by this reference.
D. City and Developer desire to provide for the transfer to the Office Parking Lot
easement from the city to the Developer and establish criteria for the use, operation and
maintenance of the Office Parking Lot.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
contained herein, and other, good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged and confessed, City, and Developer hereby establish this
Declaration and declare that all of the Office Parking Lot property, is held and shall be held,
conveyed, hypothecated or encumbered, leased, rented, used, occupied and improved, subject to
the following easements, protective restrictions, limitations, conditions, covenants, reservations,
liens and charges, which are established and agreed upon for the purpose of enhancing and
protecting the value, desirability and attractiveness of. the Project and every part thereof.
1. PARKING Easement.
(a) City hereby declares, establishes and grants to Developer and its respective heirs,
personal representatives, successors and assigns for the benefit of the Developer Property a non-
exclusive, easement over, across and through all portions of the Office Parking Lot for (a)
vehicle parking, pedestrian and vehicular ingress and egress, passage, travel and deliveries, and
3
26211.00018\7066956.1
(b) sewers, utilities, communication facilities, gas and other energy facilities, and drainage
facilities, provided "that such easements will be limited so that the implementation and use
thereof shall not interfere with the intended primary uses of the Office Parking Lot for parking
and ingress and egress on an overall basis. The Office Parking Lot shall be open to use by the
general public without any charge, fee or limitation.
(b) No parking shall ever be permitted on the designated driveways, fire lanes,
entranceways, and exits of the Office Parking Lot.
(c) City agrees to grant to any public utility or governmental entity and its successors
and assigns easements for sewer, utility communication facilities, gas and other energy facilities,
or drainage purposes under and through the Office Parking. Lot, provided that such easements
will be limited so that the use thereof will not unreasonably interfere with the intended primary
uses of the Office Parking Lot for parking and ingress and egress on an overall basis, and
provided further such easements shall be non-exclusive unless otherwise reasonably required by
the utility company or governmental entity. All sewer, utility; drainage and flood control
facilities located within the Office Parking Lot shall include the right to erect, maintain, operate,
repair, remove and replace all necessary lines, facilities, transformers and meters. All sewer,
utility, drainage and flood` control facilities located within the Office Parking Lot shall be below
finished ground surface, except for above ground retention basins approved by the City. Such
facilities that are located above finished ground surface shall be attractively painted or
reasonably screened from view by landscaping or fencing. No walls, fences or barriers of any
sort or nature, shall be constructed or erected on or around the Office Parking Lot, or any portion
thereof, which shall prevent or impair the use or exercise of any of the easements set forth
herein; or the free access and movement of vehicular and pedestrian traffic within and around the
Office Parking Lot or ingress from or egress to the Abutting Highways; provided, however, that
curb stops and other reasonable traffic controls, including without limitation, direction markers
and parking stops, as may reasonably necessary to guide and control the orderly flow of
traffic .may be installed so long as the access driveways in the Office Parking Lot are not closed
or effectively blocked:
2. TERM OF EASEMENT AND DECLARATION
This Declaration, including but not limited to the easements established hereby, shall
continue for a term of ninety-nine (99) years unless and until terminated or modified as provided
in Section of this. Declaration.
3. CONSTRUCTION OF OFFICE PARKING LOT IMPROVEMENTS
(a) Developer shall demolish the existing Office Parking Lot improvements and
design and construct new Office Parking Lot improvements all at Developer's own cost and
expense, and without any monetary consideration or other assistance from city or any other
public agency.
(b) . Developer shall construct the new Office Parking Lot improvements in
accordance with plans and specifications approved by the City. The Office Parking Lot
improvements shall consist of approximately 189 parking spaces, hardscape, landscaping and
lighting in accordance .with the plans and specifications approved by the City.
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(c) Developer shall be. responsible for all costs of operation, maintenance and repair
of the Office Parking Lot, including the payment of all utilities.
(d) The Office Parking Lot improvements may not modified or altered without the
prior written consent of the City.
4. USE OF THE OFFICE PARKING LOT
(a) The Office Parking Lot shall be used only for the development, construction,
operation, maintenance and renovation of vehicular parking, ingress and egress and pedestrian
walkways and related uses including the placement of utilities necessary for the operation of the
Office Parking:Lot and Project.
(b) No portion of the -Office Parking Lot shall be used for a use that, in the reasonable
judgment of the City, creates strong or unusual odors, fumes, dust or vapors that are clearly
offensive; is a public or private nuisance; emits noise or sounds that are clearly objectionable; or
creates an unusual fire or explosive hazard.
5. OPERATION AND MAINTENANCE OF THE OFFICE PARKING LOT
(a) Commencing on the date of the Close of Escrow for the sale of the Office
Property to Developer, shall operate and maintain or cause to be operated and maintained the
Office Parking Lot in accordance with and subject to the terms and conditions of this Section 5.
Such operation and maintenance of the Office Parking Lot shall include, but not be limited to:
(1) 'Maintaining,' repairing and replacing all portions of the Office Parking
Lot so as to keep the 'same at all 'times in good and functional condition in accordance with
standards of the West Covina Civic.. Center and office projects in the City to the reasonable
satisfaction of City;
(2) Maintaining and replacing all paved surfaces in a level, smooth, and
evenly covered condition;with the type of surfacing material originally installed or such
substitute as shall in all respects be equal in quality, use and durability;
(3);, Removing all papers, debris, filth and refuse and washing or thoroughly
sweeping and draining the Office Parking Lot to maintain itin a neat, clean, and orderly
condition;
(4) Repairing and replacing, as needed, traffic and parking facilities
(including re -painting of striping and direction markers), and operating; keeping in repair, and
replacing when necessary such bumpers and artificial lighting facilities all as shall be reasonably
required so as to provide . for orderly parking of automobiles, and placing and maintaining
entrance and exit signs and other traffic control devises and signs to direct traffic in and out of
parking areas;
(5) Operating the Office Parking Lot lighting;
26211.00018\7066956.1
(6) Maintaining the perimeter walls and any drainage, sewage, irrigation and
utility systems located within the Office Parking Lot in good condition and repair (unless
maintained by a public utility);
(7) Paying any utility costs for utilities serving the Office Parking Lot;
(8) Maintaining all landscaped areas and planters. with such replacements of
shrubs and other landscaping and irrigation systems as is appropriate, and keeping the irrigation
system in the Office Parking Lot maintained in a first class condition and all landscaped areas of
the Office Parking Lot weeded, mowed, watered and pruned in first-class condition;
(9) Employing, in Operator's discretion, or at the reasonable request of City,
security personnel to patrol the Office Parking Lot and provide security services for the Project;
(10) Providing bookkeeping and accounting services in connection with the
operation and maintenance of the Office Parking Lot:
(11) Casualty. When in its judgment such action is reasonably required, or at
the reasonable request of City, Developer shall undertake or cause to be undertaken, the repair,
restoration and/or replacement of Office Parking Lot facilities and improvements which have.
been damaged, destroyed, or have become obsolete or worn.
6. Insurance.
(a) Developer shall obtain and maintain commercial general liability insurance with
the premiums thereon fully paid% in advance, issued by and binding upon an insurance company
authorized to transact, business in the State of California and of good financial standing, such
insurance shall afford minimum protection in a commercially reasonable amount with a
commercially reasonably deductible, and as otherwise approved or required by City. Developer
shall name City as an additional insured on Developer's liability insurance policy to the extent of
Developer's indemnification obligations contained herein. On or prior to the execution of this
Declaration, and, at any time thereafter within ten (10) days following City's request, Developer
shall deliver. to City a certificate of insurance evidencing the coverage required herein.
(b) Developer shall' obtain and maintain. property insurance on all improvements
located on the Office Parking; Lot, issued by and binding upon an insurance company authorized
to transact business in the State of California and of good financial standing, in commercially
reasonable amounts andwith commercially reasonable deductibles, and as otherwise approved or
required by City. Such -policy shall indicate and insure the respective interests of Developer and
City.
7. COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS
Developer shall at all times comply with all requirements of Federal, State, County and
Local governments with respect to the use ,operation and maintenance of the Office Parking Lot.
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8. MECHANICS' LIENS.
Developer shall indemnify, defend and hold City and the Office Parking Lot property
harmless from and against all mechanics', materialmen's liens, stop notices, or other construction
liens arising out of construction performed by or on behalf of Developer and shall cause any such
liens to be promptly removed (but in all events within ten (10) days following actual notice
thereof), by bonding or otherwise, from the Office Parking Lot property.
9. TAXES AND ASSESSMENTS.
Developer shall pay, or cause to be paid, prior to delinquency, all real estate taxes, possessory
interest taxes, assessments and special assessments assessed against the Office Parking Lot
property. Developer, at its own cost and expense, with the consent of the City, shall have the
right, at any time, to contest or seek a reduction in the assessed valuation attributable to the
Office Parking Lot property, or to contest any real estate taxes and assessments that are so
attributable, provided Developer undertakes all proceedings necessary to prevent the sale of the
Office Parking Lot property for such real estate taxes and assessments (including payment of the
full contested amount subject to such contest or possible reduction if required by applicable law),
and promptly upon termination of such proceedings (but in any event prior to the sale of such
Parcel for taxes) pays in full the real estate taxes and assessments determined to be due and
owing, plus all interest, penalties and other costs with respect to such contest. If Developer fails
at any time to pay its taxes, before the date +.such payment is due, then any such delinquent
amounts may be paid by City after 10 days prior written notice to Developer, in which event the
Developer shall be obligated to reimburse City together with interest thereon commencing upon
the date of receipt of such written demand at an annual interest rate equal to the Default Rate (as
defined below). Such reimbursement shall be made within 5 days after written demand therefor.
Such reimbursement obligations shall be secured by a lien and charge upon all the real and
personal property ofDeveloper in:the Project. Nothing contained in this Section 9 shall be
construed as prohibiting Developer from requiring. a tenant or other occupant of Developer's
Project, to pay or cause to be paid all` o.r any portion of Developer's real estate taxes and
assessments or to reimburse Developer for all or any portion thereof, nor shall this Section 9 be
construed as prohibiting Developer from having or entering into a separate agreement with any
third party as to the responsibility for payment or reimbursement of real estate taxes and
assessments in a manner different than is provided for in this Section 9.
10. DEFAULT.IN PERFORMANCE.
(a) If Developer `fails to perform any of its obligations described in this Declaration,
including, without limitation, the maintenance and repair obligations described in Section 9, the
City may, after delivery of written notice to Developer specifying the actions to be taken and the
expiration of a thirty (30) day cure period, cure any such failure and assess Developerfor the
reasonable costs of such action, which shall be payable by Developer upon presentation of a
written invoice thcrcfor.
(b) Any and all reasonable costs and expenses incurred by City to cure the default of
Developer under the provisions of this Declaration, together with interest thereon at the lesser of
(a) the annual rate of interest then published in The Wall Street Journal as the "Prime Rate" of
interest for big money banks plus seven percent (7%) or (b) the maximum nonusurious rate of
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interest allowed by applicable law [the lesser of (a) or (b) preceding being referred to as the
"Default Rate"], and all costs and expenses of any proceedings at law or in equity, including
reasonable attorneys' fees, shall be assessed against and paid by Developer. Further, if
Developer fails -to pay any sum or money which is due and owing from Developer to City as of
the date which is thirty (30) days following an invoice therefor (unless a shorter period is herein
specified..for payment), the amount of money owed by Developer shall thereafter bear interest at
the Default Rate until paid in full.
11. MODIFICATION.
This Declaration may be amended or canceled in whole or in part only by a written and
recorded agreement executed by.the City and Developer, provided that no such amendment or
cancellation shall (i) result in the practical or legal inability of.ingress arid. egress.for vehicles and
pedestrians to and from an abutting highway to and from the Office Parking Lot or the Office
Property if the owner of such property has not consented to such amending and' cancelling.
12. MISCELLANEOUS PROVISIONS.
12.1 Binding on Successors.
Each and all of the foregoing covenants, conditions and restrictions:
(a) Shall apply to, bind and inure to the benefit of, City and Developer and
all portions of the Office Parking Lot property or any interest therein and each and all of their
respective heirs, mortgagees, tenants and subtenants, and ,permitted successors, assigns and
grantees;
(b) Are hereby imposed pursuant to a general plan for the improvement and
use of the Project and are designed for the mutual -benefit of the City Property, the Developer
Property and the Office Parking Lot property, their owners, tenants, and occupants of any and
all portions thereof;
(c) Shall constitute .equitable servitudes on the Office. Parking Lot property
and the Project for the benefit of the City Property, the Developer. Property and the Office
Parking Lot property;
(d) Burdens" the Office Parking Lot property and is for the benefit of The
City Property, the Developer. Property and the Office Parking Lot property; and
(e) Runs with both the land owned by the City and the land owned by the
Developer.
26211.00018\7066956.1
12.2 Assignment and Assumption.
Developer shall not assign or transfer all or any portion of its interest in the Office
Parking Lot property (including, without limitation, to a condominium association or similar
ownership association) without the prior written consent of City which consent shall not be
unreasonably withheld, conditioned or delayed. Any attempted assignment or transfer by
Developer without the consent of City shall be automatically void and of no force or effect. In
the event that any Owner of a Parcel within the Project shall sell, assign, or convey all or any
portion of its Parcel, .then the new Owner who takes title to such Parcel or such portion of a
Parcel or any interest therein shall be deemed to have automatically assumed all liability as
respects the performance .of any agreement or obligation on the part of such Owner contained in
this Declaration to be performed with respect to the Parcel' so sold, assigned, or conveyed
accruing from and after the date of such transfer, sale or conveyance; provided however,
Developer shall be and remain liable for any obligations contained in this Declaration following
the date of such transfer, sale or conveyance unless such transfer (and the documents evidencing
such transfer) and releasing Developer from liability after the date of such transfer, sale or
conveyance has been approved by City. In no event shall any Owner be liable for the failure of
another Owner to comply with its obligations- contained in this Declaration, including but not
limited to a failure to comply with the restrictions set forth in another Owner's leases.
12.3 Mortgagee Protection.
Breach of any covenants or restrictions contained in this Declaration shall not defeat nor
render invalid the lien of any mortgage or deed of trust made in good faith and for value as to the
Project or any part thereof; but all of the foregoing provisions, restrictions, and covenants shall
be binding and effective against any Owner of any Parcel of the Project, or any part thereof,
whose title thereto. is acquired by foreclosure, trustee's sale, deed in lieu of foreclosure, or
otherwise.
12.4 Severability
Invalidation of any one of the covenants, conditions, restrictions, or other provisions herein
contained by judgment or court order shall in. no way affect any of the other covenants,
conditions, restrictions, or provisions hereof, and the same shall remain in full force and effect.
12.5 Attorney'sFees.
In the event that suit is. brought for the enforcement of this Declaration or as the result of any
alleged breach thereof, the prevailing party or parties to such suit shall be entitled to be paid
reasonable attorney's fees by the losing party or parties, and any judgment or decree.r-endered
shall include an award thereof.
12.6 Eminent Domain.
In the event of condemnation by any duly constituted authority for a public or quasi -public use of
all or any part of the Project, that portion of the award attributable to, the value of any land and
improvements within each Parcel so taken shall.be payable only to the Owner in fee thereof, and
no claim thereon shall be made by other Owners of any other portion of the Project; provided,
however, all other Owners may file collateral severance or other claims with the condemning
authority over and above the value of the land and improvements of the area to be taken.
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12.7 Captions.
. The captions heading the various sections of this Declaration are for convenience and
identification only, and shall not be deemed to limit or define the contents of their respective
sections.
12.8 Force Majeure.
As a matter of general applicability, each Owner shall be excused from performing any
obligation or undertaking provided in this Declaration, except any obligation to pay any sums
of money under the applicable provisions hereof in the event and so long as the performance of
any such obligation is prevented or delayed, retarded or hindered by act of God, fire,
earthquake, floods, explosion, actions of the elements, war, invasion, insurrection, riot, mob
violence, sabotage; :inability to' procure or general shortage of. labor, equipment, facilities,
materials or. supplies in the ordinary course on the open market; ,failure of normal
transportation; strikes, lockouts, action of labor unions; condemnation, requisition; laws, orders
of governmental or civil or military or naval authorities; the inability to obtain -governmental or
civil or military or naval authorities; the inability to" obtain governmental approvals or permits
despite the exercise of due diligence and best efforts by anOwner; or any cause, whether
similar or dissimilar to the foregoing, not within the reasonable control of such Owner, other
than the lack of or, inability to obtain funds to fulfill its commitments and obligations or
undertakings provided under this Declaration.
12.9 No Merger of Estates.
There shall be no merger of any easements, rights, interests, or estates created by this
Declaration by reason of the fact that more than one Parcel of the Project may be owned or held
directly or indirectly by or for the account of the same person or entity, and no such merger
shall occur unless and until all persons and entities at the time having an interest in the Project
(including, but not limited' o, the Mortgagees with respect to any portion of the Project) shall
join in a written instrument ..affecting .such,. merger and shall duly record the same. The
ownership,of the entireProject .Declarant or any other Owner shall not effect a termination
in this Declaration.
12.10 Liens.
The lieris provided for in this Declaration may be established by filing for record by the
party entitled thereto as a claim of lien against the defaulting Owner on the property of the
defaulting Owner (and, if applicable, any condominium or ownership association applicable
thereto) in the office of the County Recorder, which filing shall contain at least: (i) a statement
of the unpaid amount of costs and expenses; (ii) a description sufficient for identification of
that portion of the property of the defaulting Owner which is the subject of the lien; and (iii) the
name of the Owner or reputed Owner of the property which is the subject of the alleged lien..
Such lien, when so established against the real property described in said lien, shall be prior and
superior to any right, title, interest, lien, or claim which may be or has been acquired or
attached, to such real property after the time of filing of such lien. Such lien shall be for the use
and benefit of the person filing same, and may be enforced in a suit or action brought idany
court of competent jurisdiction. Notwithstanding any of the foregoing to the contrary, any such
lien shall be subordinate to any Mortgage covering any portion of the Project recorded prior to
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26211.00018\7066956.1
the establishment of such lien, and any purchaser at any foreclosure sale or trustee's sale (or the
grantee of a deed in lieu of foreclosure or trustee's sale) under any such Mortgage shall take
title free from any such lien, but otherwise subject to the provisions.of this Declaration.
12.11 Mutual Waivers.
Each Owner hereby waives any and every,claim which.arises, or may arise, in its favor
and against any other Owner during the term of this Declaration for any and all loss of, or
damage to, any of its property located within or upon, or constituting apart of, the Project, which
loss or damage is the type or kind which would be covered by property insurance policies then in
common use. Said mutual waivers shall be in addition to, and not in.limitation or derogation of,
any other waiver or release regarding any loss, or damage to, the said property of any Owner.
Inasmuch as said mutual waivers will preclude the assignment of any such claim by way of
subrogation (or otherwise) to an insurance company (or any other person, firm or corporation),
each Owner shall give to each insurance company which has issued to it policies of property
insurance with respect to the Project or any portion 'thereof, written notice of the terms of said
mutual waivers, and shall have said insurance policies properly endorsed, if necessary, to prevent
invalidation of said insurance coverages by reason of said. waivers. Nothing to the contrary
herein withstanding, said waivers shall only be effective' if they do not invalidate any insurance
coverage with respect to the Project or any portion thereof.
12.12 Further Assurances
Each Owner hereby agrees to perform any further acts and deliver any additional
documents in recordable form that may be reasonably requested by any other party to carry out
the provisions of this Declaration, and to effectuate and implement the grant of and
establishment of any easement described herein.
12.13 Notices.
Unless otherwise specifically provided in this Declaration, Any notice hereunder must be
in writing and shall be effective two (2) business days after being deposited in the United States
mail, certified mail, return receipt requested ,_,addressed to the applicable Owner as set forth
below (or, as may be designated from time to time in the manner provided in this Section I I (o))
or when actually received by the party to be notified if hand delivered. For the purposes of
notice, the addresses of the signatories hereto, until changed as herein, provided, shall be as
follows:
12.14 Existing and Future Agreements.
Notwithstanding any provisions of this Declaration to the contrary, this Declaration is
subject and subordinate to (i) any leases of the Project that are in effect on the date hereof and
(ii) all matters of record as of the date of recordation of this Declaration. North Owner shall not
enter into any agreement affecting the ownership of the North Parcel. (but excluding any
agreements with third party lenders in connection with the financing of the development of the
North Parcel), including, without limitation, any condominium, declaration, or amendments
thereto, without the prior written approval of Approving Party, which consent shall not be
unreasonably withheld. Within thirty (30) days following North Owner's written request for
approval of any such agreement, Approving Party shall either approve or disapprove such
agreement, and in the event Approving Party provides written notice of its disapproval thereof,
such notice shall set forth with specificity the reasons for its disapproval; provided, however, if
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Approving Party fails to respond within such 30-day period, Approving Party shall be deemed
to have disapproved such agreement. Approving Party shall have the right from time to time,
upon at least two (2) days advance notice to North Owner; to review all documents and budgets
relating to any condominium regime or owner's association established with respect to the
improvements or operations on the North Parcel. Notwithstanding anything to the contrary set
forth in this Section 11(p), Approving Party shall have no right to approve the sale of individual
office condominium units by the North Owner.
[Remainder of page intentionally left blank.]
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26211.00018\7066956.1
DEVELOPER
CGM Development, Inc
By:
Date:
13
26211.00018\7066956.1
CITY
City, of West Covina,
By:
Andrew Pasmant, Executive Director
Date:
ATTACHMENT NO. 11
PROMISSORY NOTE
PROMISSORY NOTE
Secured by Deed of Trust
West Covina, California
92011
For value received, CGM DEVELOPMENT, INC. a California corporation, ("CGM") herein
referred to as the undersigned, jointly and severally promise to pay to the order of the CITY OF
WEST COVINA, County of Los Angeles, State of California, ("City") its successors and
assigns, herein referred to as holder, at West Covina, California, the sum of not to exceed Five
Hundred Sixty Thousand Dollars ($560,000) with interest payable at the rate of seven percent
(7%) per annum from the date of Close of Escrow pursuant to the Disposition and Development
agreement entered into between CGM and City dated all principal and
interest payable in one lump sum on or before six (6) months from the date of Close of Escrow.
The Principal and interest due on this Promissory Note may be prepaid without penalty. Each
payment shall be credited first toward interest, then toward late fees/collection charges, then
toward any other amounts due from undersigned to holder, and then toward principal.. .
1. If any payment is not paid when due, the undersigned shall pay collection charges of
three (3%) percent for each overdue payment or the actual costs of collection, whichever is
greater.
2. Attorneys' fees. The undersigned shall pay all reasonable attorneys' .fees incurred -by
holder- in enforcing any right or remedy under this note.
3. Interest on unpaid amounts. All sums remaining unpaid on the agreed or accelerated date
of maturity of the last payment shall thereafter bear interest at the rate of ten (10%) percent per
annum.
4: Completion or modification of note. Each of the undersigned authorizes holder to date
and complete this note in accordance with the terms of the loan evidenced hereby, to accept
additional comakers, to release comakers, to change or extend dates of payment, and to grant
indulgences all without or affecting the obligations of any of the undersigned.
CGM DDA Final Sen.DOC
0 1 0
5. Waiver of rights by comakers. The undersigned waives (a) presentment, protest, notice
of protest and notice of dishonor; (b) the right, if any, to the benefit of, or to direct the
application of, any security hypothecated to holder until all indebtedness of the undersigned to
holder, however arising, shall have been paid; (c) the right to require holder to proceed against
the undersigned, or to pursue any other remedy in holder's power: Holder may proceed against
any of the undersigned directly and independently of .any other, for any reason other than full
payment, or any extension, forbearance, change of rate of interest, or acceptance, release, or
substitution of security, or any impairment or suspension of holder's remedies or rights against
any of the undersigned, shall not in any way affect the liability of any off _the undersigned.
Holder shall, prior to any action of collection or foreclosure, give the undersigned a 30-day
notice of any breach or default and shall commence action of collection or foreclosure only in the
event the undersigned has failed to cure any breach or default with respect to the payment of
money within such 30-day period or if such breach or default is not with respect to the payment
of money only in the event the undersigned has failed to commence curing such breach or default
within such 30-day period and thereafter fails to diligently pursue curing such breach.
CGM DEVELOPMENT, INC.
an
Name:
Its:
CGM DDA Final Sen.DOC
ATTACHMENT NO. 12
DEED OF TRUST
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
COMMUNITY DEVELOPMENT COMMISSION FOR
THE CITY OF WEST COVINA, CALIFORNIA .
(Space above for Recorder Exempt trom
Exempt from Recording fees Government Code
27838)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
TO CITY OF WEST COVINA, CALIFORNIA
THIS DEED OF TRUST WITH 'ASSIGNMENT OF RENTS is made on
by and between CGM DEVELOPMENT, INC., a California
corporation (the "Trustor" or "Borrower"), whose address is
and
("Trustee"). and the CITY OF WEST
COVINA, CALIFORNIA a public body, corporate and politic ("City" or 'Beneficiary").
WITNESSETH: That Trustor/Borrower Irrevocably, Grants, Transfers and Assigns to
Trustee in Trust, with Power of Sale, that certain real property (the "Property") in the City of
West Covina, County of Los Angeles, State of California, commonly known as,
, West Covina, California, and legally described on
Attachment No. 1, attached hereto and incorporated'herein by this reference (Trustor agrees that
any greater title to the Land later acquired during the term of this Deed of Trust will be subject to
this Deed of Trust),
TOGETHER WITH: (a) all buildings, improvements and fixtures, as now or hereafter
may be placed thereon, it being understood and agreed that all classes of property attached or
0
CGM DDA Final Sen.DOC
0 0
unattached used in connection herewith shall be deemed fixtures, (b) rents, issues and profits
thereof, and (c) any water'rights and/or stock appurtenant or pertaining to the land.
FOR THE PURPOSE OF SECURING:
1. Payment of the Sum of $560,000 as described in the Promissory Note with
interest as provided thereon according to the terms of a? romissory Note dated the same date
herewith, made by CGM Development; Inc., payable to the order of the City Beneficiary and
extensions or renewals thereof.
A copy of the Promissory Note is attached as Attachment No. 2.
2. ' Performance of each and every obligation, covenant, promise or agreement of
Borrower contained herein.
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, BORROWER AGREES:
1. To keep the Property in good condition and repair; to allow Beneficiary or its
representatives to enter and inspect the premises at all reasonable times with forty eight (48)
hours notice and access thereto shall be permitted for that purpose; not to remove or demolish
any building thereon; not to make alterations thereto without the consent of the Beneficiary; to
complete or restore promptly and in good and worlanan-like manner_any building which may be
constructed, damaged or destroyed thereon, including, without restricting the generality of the
foregoing, damage from termites and dry -rot; to pay when due all claims for labor performed and
materials furnished in connection with such property and not to permit any mechanics liens
against such property; to comply with all laws affecting such property or requiring any
alterations or improvements to be made thereon; not to initiate or acquiesce in any zoning
reclassification without Beneficiary's written consent - not to commit or permit waste thereon;
not to commit, suffer or permit any act upon such property in violation of the law; and to paint,
cultivate, irrigate, fertilize, fumigate, prune, and do all other acts that from the character or use of
the property may be reasonably necessary.
If the loan secured hereby or any part. thereof is being obtained or should any additional
loan be made hereafter for the purpose of financing rehabilitation improvements on the property,
Borrower further agrees, anything in the Promissory Note or this Deed of Trust to the contrary
notwithstanding: (a) to complete the same in accordance with City approved plans and
specifications satisfactory to Beneficiary; (b) to allow Beneficiary to inspect such property at all
times during rehabilitation;. (c) to replace any work or materials unsatisfactory to Beneficiary
within fifteen (15) calendar days after written notice from Beneficiary of such fact, which notice
may be given to Borrower by registered or certified mail, sent to the last known address, or by
personal service of the same; (d) that work .shall not cease on the rehabilitation of such
improvements for any reason whatsoever for the period of fifteen (15) calendar days, without the
CGM DDA Final Sen.DOC
written permission of the Beneficiary; (e) to pay when due all claims for Iabor and materials
furnished in connection with the rehabilitation and not permit any claims of lien for the work or
material to be filed of record against the property; and (f) not to permit any notice claims to be.
presented to Beneficiary. If the property is part of a larger tract'upon which improvements will
be constructed, Borrower shall make separate contracts and sub -contracts for the construction
which shall pertain to the property. only and shall keep separate, full and complete records of all
work and materials furnished to the property. Trustee, upon presentation to .it of an affidavit
signed by the Beneficiary setting forth facts showing a default by Borrower under this paragraph,
is authorized to accept as true and conclusive all facts_ and statements therein, and to act thereon
hereunder.
2. To provide, and maintain in force at all times with respect to the Property, fire and
other types of insurance as required by Beneficiary in the Agreement. All of such insurance
shall have a loss payable endorsement in favor of Beneficiary, shall be for a term and in form,
content, amount and with such companies as satisfactory to Beneficiary and set forth in the
Agreement, and policies therefor shall be delivered to and remain in possession of Beneficiary as
further security for the faithful performance of Borrower hereunder. At least thirty (30) days
prior to the expiration of any insurance policy, a policy or policies renewing or extending such
expiring insurance shall be delivered to Beneficiary together with written .evidence showing
payment of the premium therefor. In case of insurance loss, beneficiary is hereby authorized
either (a) upon prior notice to Borrower, to settle and adjust any claim under the insurance
policies provided for in this document without the consent of the Borrower, or (b) to allow
Borrower to.agree with the insurance company or companies on the amount to be paid upon the
loss.. In either case, the Beneficiary is authorized to collect and make receipt of any such
insurance money. Any such insurance proceeds at the option of the Beneficiary, shall either be
applied in reduction of the indebtedness secured hereby whether due or not, or in such order as
Beneficiary may determine, or be held by the Beneficiary and used to reimburse the Borrower
for the cost of rebuilding or restoring the building or improvements on the premises. Such
buildings and improvements shall be restored or rebuilt so as to be of equal value and
substantially the same character as prior to the damage or destruction, and shall be in a condition
satisfactory to Beneficiary,. 'Such application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to such notice. Any and -all
unexpired insurance shall inure to the benefit of, and pass to the purchaser of, the property
conveyed at any Trustee sale held hereunder. I
3. To pay: (a) at least ten (10) days before delinquency, all general; and special City
and County taxes, and all assessments on appurtenant water stock, affecting such Property; (b)
when due, all special assessments for public improvements, without permitting any
improvements bond to issue for any special assessment; (c) when due, all encumbrances, charges
and liens, with interest,. on the Propertyor any part thereof, which are or appear to be prior or
superior hereto; (d) all costs, fees and expenses of this trust; (e) for any statement regarding the
obligation secured hereby and any amount demanded by Beneficiary not to exceed the maximum
allowed by law thereof at the time when such request is made; (f) such other charges for services
rendered by Beneficiary and furnished at Borrower's request or that of any successor in interest
to Borrower as the Beneficiary may deem reasonable.
CGM DDA Final Sen.DOC
If, by the laws of the United States of America, or of any state having jurisdiction over
the Borrower, any tax is due or becomes due in respect to the issuance of the Note hereby
secured, -the, Borrower covenants and agrees to pay such tax in the manner required by such law.
4. That, should Borrower fail to make any payment or do any act as provided in this
Deed of Trust, then Beneficiary or Trustee, but without obligation to do so and without notice to
or demand upon Borrower and without releasing Borrower from any obligation hereof, may (a)
make or do the same in such manner and to such extent as either may deem necessary to protect
the security hereof, Beneficiary or Trustee being authorized to enter upon the property for such
purposes; (b) commence, or defend any action or proceeding purporting to affect the security
hereof or the property covered by this Deed of Trust, or the. rights or powers of Beneficiary or
Trustee; (c) pay, purchase, contest or compromise any encumbrance, charge or lien, which in the
judgment of either is or appears to be prior or superior hereto; and (d) in exercising any such
powers, pay necessary expenses, employ counsel. and pay the reasonable fees. Borrower agrees
to repay any amount so expended on demand of Beneficiary, and any amount so expended may
be added by Beneficiary to the indebtedness secured hereby and shall bear a like rate of interest.
5. To appear in and defend any action or proceeding purporting to affect the security
hereof or the property which is covered by this Deed of Trust, or the rights or powers of
Beneficiary or Trustee, and whether or not Borrower so appears or defends, to pay all costs and
expenses, including cost of evidence of title and attorneys, fees in a reasonable sum, in any such
action or proceeding in which Beneficiary or Trustee may appear by virtue of being made a party
defendant or otherwise irrespective of whether the interest of Beneficiary or Trustee in such
property is directly questioned by such action, including any action for the condemnation or
partition of the premises, and in any suit brought by Beneficiary to foreclose this Deed of Trust.
6. To pay immediately and without demand, all sums expended under the terms of
this Deed of Trust by Beneficiary or Trustee, with interest from the date of expenditure at the
rate which the principal obligation secured hereby bears at the time such payment is made, and
the repayment of such sums shall be secured hereby.
7. That, should the Borrower or any successor in interest to Borrower in such
Property drill or extract, or enter into a lease for drilling or extraction of oil, gas or other
hydrocarbon substances or any mineral of any kind or character, or sell, convey, further
encumber, or alienate the property, or any part thereof, or any interest therein, or be divested of
title or any interest therein in any manner or way, whether voluntarily or involuntarily,
Beneficiary shall have the right, at its option, to declare any indebtedness or obligations secured
hereby irrespective of the maturity date specified in any Note evidencing the same, immediately
due and payable, and no waiver of this right shall be effective unless in writing.
CGM DDA Final Sen.DOC
8. That any award, settlement or damages for injury or damages to such Property, or
in connection with the transaction financed by such loan, and any award of damages in
connection with any condemnation for public use of or injury to the property, or any part thereof,
is hereby assigned and shall be paid to Beneficiary, who may apply or release such monies
received by it in such manner and with the same effect as above provided for the disposition of
proceeds of fire or other insurance.
9. Beneficiary does not waive its right either to require prompt payment when due of
all sums so secured or to declare a default for failure so to pay, by accepting payment of any sum
secured hereby after its due, date or by making any payment, or perfonning any act on behalf of
Borrower, that Borrower was obligated hereunder, but failed, to make, or perform, or by adding
any payment so made by Beneficiary to the indebtedness secured hereby.
10. That at any time; or from time to time, without liability of the Beneficiary or
Trustee thereof, and without notice, upon written request of Beneficiary and presentation of the
Deed of Trust and any Note secured hereby for endorsement,. and without affecting the personal
liability of any person for payment of the indebtedness secured hereby, or the lien of the Deed of
Trust upon the remainder of the property for the full amount of the indebtedness then or
thereafter secured hereby, or the rights or powers of Beneficiary or the Trustee with respect to
the remainder of the property, Trustee may: (a) ieconvey any part of the property, (b) consent to
the making of any map or plat thereof, (c) join in granting any easement thereon, (d) join in any
agreement subordinating the lien or charge hereof.
11. That the lien hereof shall remain in full force and effect during any postponement
or extension of time of payment of the indebtedness secured hereby, or any part thereof.
12. That upon written request of Beneficiary stating that all sums secured hereby have
been paid, and upon surrender of this Deed of Trust and the Note or Notes to Trustee for
cancellation and retention, and upon payment of its fees, Trustee shall reconvey, without
warranty, the property then held hereunder. The recitals in such reconveyance of any matters of
fact shall be conclusive evidence of the truthfulness thereof. The grantee in such reconveyance
may be described as the person or persons legally entitled thereto. Such request and
reconveyance shall operate as a re -assignment of the rents, issues, royalties and profits
hereinafter assigned to Beneficiary. Five (5) years after issuance of such full reconveyance,
Trustee may destroy the Note and this Deed of Trust (unless directed in such request to retain
them).
13. That as additional security, Borrower irrevocably assigns to City the rents, issues,
and profits of the Property affected by this Deed of Trust for the purposes and upon the terns
and conditions set forth below. This assignment shall not impose upon City any duty to produce
rents from the property affected by this Deed of Trust, or cause City to be (a) mortgagee in
possession for any purpose, (b) responsible for performing any of the obligations of the lessor
CGM DDA Final Sen.DOC
•
under any lease; or. (c) responsible for any waste committed by lessees or any other parties, for
any dangerous or defective condition of the property affected by this Deed of Trust, or for any
negligence in the management, upkeep, repair, or control. of such property. This is an absolute
assignment, not an assignment for security only, and Beneficiary's right to rents, issues and
profits is not contingent upon, and may be exercised without possession of, the property affected
by this Deed of Trust.
To the extent permitted by the Promissory Note; City confers upon Borrower a license
("License") to collect and retain the issues and profits of the property affected by this Deed of
Trust 'as they become due and payable, until the occurrence of a default hereunder. Upon such
default, the License shall be automatically revoked and City may collect and retain the issues and
profits without notice and without taking possession of the property affected by this Deed of
Trust. This right to collect issues and profits shall not grant to City or Trustee the right to
possession except as otherwise provided herein; and neither the right, nor termination of the
License, shall impose upon City or Trustee the duty to*produce issues or profits or maintain all or
any part of the property affected by this Deed of Trust, if Borrower shall default, Borrower's
right to collect any such money shall cease and Beneficiary shall have the right, with or without
taking possession of the property affected hereby, to collect all issues, royalties and profits and
shall be authorized to, and may, without notice and,irrespective of whether declaration of default
has been delivered to Trustee and without regard to the adequacy of the security for the
indebtedness secured hereby, either personally or by attorney or agent, without bringing any
action or proceeding, or by receiver to be appointed by the Court, enter into possession and hold,
occupy, possess and enjoy the property, and to sue, and to take; receive and collect all or any pail
of the issues and profits of the property affected hereby, and after paying such costs of
maintenance, operation of the property, and of collections, including reasonable attorneys, fees,
as in its judgment it may deem proper, to apply the balance upon any indebtedness then -secured'
hereby, the issues, royalties and profits of the property being hereby assigned to Beneficiary.
The acceptance of such rents, issues, royalties and profits shall not constitute a waiver of any
other right which Trustee or Beneficiary may enjoyunder this Deed of Trust or under the laws of
California. Failure of or discontinuance by Beneficiary at any time, or from, time to time, to
collect any such issues,. royalties or profits shall not in any manner affect the subsequent
enforcement by Beneficiary of the right, power and authority to collect the same. The receipt
and application by Beneficiary of all such issues, royalties and profits pursuant hereto, and after
execution and delivery of declaration of default and demand for sale as hereinafter provided, or
during the pendency of Trustee's sale proceedings hereunder, shall not cure such breach or
default nor affect the sale proceedings, or any sale made pursuant thereto, but such rents, issues,
royalties and profits, less all costs of operation, maintenance; collection and reasonable attorneys
fees, when received by Beneficiary, shall be applied in reduction of the indebtedness secured
hereby, from time to time, in such order as Beneficiary may determine. Nothing contained
herein, nor the exercise of the right by Beneficiary to collect, shall be, or be construed to be, an
affirmation by Beneficiary of any tenancy, lease or option, nor an assumption of liability under,
nor a subordination of the lien or charge of this Deed of Trust to, any such tenancy, lease or
option.
CGM DDA Final Sen.DOC
14. That upon default by Borrower in payment of any indebtedness secured hereby or
in -performance of any.agreement affecting Borrower's ownership of the Property, shall constitute
a default under this Deed of Trust, and upon default 'by Borrower under the terms of any
encumbrance, charge or lien which is or appears to be -prior to or superior hereto, Beneficiary
may declare all sums secured hereby immediately due and payable by delivery to Borrower of
written declaration of default and demand for sale of written notice of default and of election to
cause to be sold the property, which notice Trustee shall cause to be filed for record. Beneficiary
shall also deposit with Trustee this Deed of Trust and any.Notes and all documents evidencing
expenditures secured hereby. After the lapse of such time as then may be required by law
following recordation of such notice of default, and notice of sale having been given as then
required by law, Trustee, .without demand on Borrower, shall sell the property at the time and
place fixed by it in such notice of sale, whether as a whole or in separate parcels, and -in such
order as it "play deternline,'at public auction to the highest bidder in lawful money of the United
States, payable at time of sale. Trustee may postpone sale of all or any portion of the property by
public announcement at such time and place of sale, ' and from time to time thereafter may
postpone such sale by public announcement at the time fixed by the .preceding postponement.
Trustee shall deliver to such purchaser its Deed conveying the property so sold, but without any
covenant or warranty, express or implied: The recital in such Deed of any matters of fact shall
be conclusive `evidence of the truthfulness thereof. Any person, including Borrower, Trustee, or
Beneficiary as hereinafter defined, may purchase at such sale. Trustee may, also, sell at any such
sale and as part thereof any shares of corporate stock securing the obligations secured hereby,
and Borrower waives demand and notice of such sale. (Beneficiary at its option may also
foreclose on such shares by independent pledge sale, and Borrower waives demand and notice of
such sale.) After deducting all costs, fees and expenses of Trustee, and of this Trust, including
cost of evidence of title in connection with this sale, Trustee shall apply the proceeds of sale to
payment, first, of all sums expended under the terms hereof, not then repaid, with accrued
interest' at the rate then payable under the Note or Notes secured hereby, and then of all other
sums secured hereby, and, if there are any proceeds remaining, shall distribute them to the person
or persons legally entitled thereto.
15. To waive, to the fullest extent permissible by law, the right to plead any statute of
limitations as a defense to any demand secured hereby.
16. The Beneficiary may, from time to time, by instrument in writing, substitute a
successor or successors to any Trustee named herein or acting hereunder, which instrument,
executed and acknowledged by Beneficiary and recorded in the office of the recorder of the
county or counties where such_ Property is situated, shall be conclusive proof of property
substitution of such successor Trustee -or Trustees, who shall, without conveyances from the
Trustee predecessor, succeed to all its title; estate, rights, powers and duties, including by not
limited to the power to reconvey the whole or any part ,of the property covered by this Deed of
Trust. Such instrument must contain the name of the original Borrower, Trustee and Beneficiary
hereunder, and the book and page where this Deed of Trust is recorded. If notice of default shall
have been recorded, this power of substitution cannot be exercised until after the costs, fees and
expenses of the then acting Trustee shall have been paid to such Trustee, who shall endorse
CGM DDA Final Sen.DOC
receipt thereof upon such instrument. The procedures herein provided for substitution of Trustee
shall not be exclusive of other provisions for Substitution provided bylaw.
17. That this Deed of Trust applies to, insures to the benefit of, and binds all parties
hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The
term "Beneficiary" shall mean the owner and holder, including pledgee, of the Note secured
hereby, whether or not named as Beneficiary herein. In this Deed of Trust, whenever the context
so requires, the masculine gender includes the feminine an&or neuter, and the singular number
includes the plural.
18. That in the event of a demand for, and the preparation and delivery of a written
statement regarding the obligations secured by this Deed of Trust pursuant to Sections 2943 and
2954 of the Civil Code of California (or successor statutes), Beneficiary shall be entitled to make
a reasonable charge, not exceeding the maximum amount which is permitted by law at the time
the statement is furnished. Beneficiary may also charge Borrower a reasonable fee for any other
services rendered to Borrower or rendered in Borrower's behalf in connection with the Property
of this Deed of Trust, including changing Beneficiary's records pertaining to this Deed of Trust
and the loan secured hereby in connection with the transfer of the property, or releasing an
existing policy of fire insurance or other casualty insurance held by Beneficiary and replacing the
same with another such policy.
19. That Trustee accepts this Trust when this Deed of Trust, duly executed and
acknowledged, is made a public record as provided by law. Trustee is not obligated to
notify any party hereto of pending sale under any other Deed of Trust or of any action or
proceeding in which Borrower, Beneficiary or Trustee shall be a party unless brought by
Trustee.
20. That Borrower has made certain representations and disclosures in order to induce
Beneficiary to make the loan evidenced by the Promissory Note or Notes which this Deed of
Trust secures and in the event that Borrower has made any material misrepresentation or failed to
disclose any material fact, Beneficiary at its option and without notice, shall have the right to
declare the indebtedness secured hereby, irrespective of the maturity date specified in such Note
or Notes, immediatelydue and payable, and on failure to so pay Beneficiary may make a written
declaration of default and demand for sale as in paragraph No. 14, herein set forth. Trustee,
upon presentation to it of an affidavit signed by Beneficiary setting forth facts showing a default
by Borrower under this paragraph, is authorized to accept as true and conclusive all facts and
statements therein, and to act thereon hereunder.
Any notice which any party hereto may desire or be required to give to the other party shall be in
writing. The mailing thereof must be certified mail addressed to the Borrower at their address
hereinabove set forth or to the Beneficiary at its office or at such other place as such parties
hereto may designate in writing.
CGM DDA Final Sen.DOC
THE UNDERSIGNED BORROWER REQUESTS that a copy of any notice of default and of
any notice of sale hereunder be mailed at the address hereinbefore set forth.
Dated: Signature,of Borrower(s)
CMG Development, Inc.
By:
Name:
By: —
Name:
ATTACH APPROPRIATE NOTARY FORMS.
9
CGM DDA Final Sen.DOC
Attachment No. 1 to Deed of Trust
Legal Description of Property
CGM DDA Final sen.Doc
Attachment No. 2 to Deed of Trust
Promissory Note
CGM DDA final Sen.DOC
J
Attachment No. 3
GROUND LEASE AND AGREEMENT
FOR PARKING LOT CONSTRUCTION
by and between
COUNTY OF LOS ANGELES
Lessor
CITY OF WEST COVINA
Lessee
Contract #
County Const Grnd Lease 12-7-11
TABLE OF CONTENTS
INDEX
Page
1. DESCRIPTION OF PREMISES............................................................................2
2. GROUND LEASE AND TERM THEREOF............................................................2
3. LEASE CONSIDERATIONS.................................................................................3
4. USES: APPLICABLE LAWS.......................................................................4
5. TAXES AND ASSESSMENTS............................................................................:.5
6. UTILITIES.............................................................................................................6
7. CONSTRUCTION AND LIENS.............................................................................7
8. MAINTENANCE OF LESSEE'S PROJECT.......................................................11
9. NON -SUBORDINATION AND NON -ASSIGNMENT AS SECURITY..................11
10. LIENS........................................................................................................:........12
A. General....................................................................................................12
B. Mechanics' and other Liens......................................................................13
11. INDEMNIFICATION AND INSURANCE..............................................................13
12. REPAIR AND RESTORATION...........................................................................16
13. DEFAULT ................................. :......................................................................... 17
A. Material Default........................................................................................17
B. Remedies.................................................................................................18
C. Equitable Relief...............................................:........................................18
D. Cumulative Remedies..................................................................18
14. WAIVER OF CONDITIONS OR COVENANTS...................................................18
15. EMINENT DOMAIN............................................................................................19
16. ASSIGNMENT/SUBLETTING.............................................................................19
A. No Assignment.........................................................................................18
B. No Involuntary Assignment......................................................................20
17. OWNERSHIP OF IMPROVEMENTS DURING TERM., ....................................... 20
County Const Grnd Lease 12-7-11 ii
18. REVERSION OF IMPROVEMENTS AND SURRENDER...................................20
19. HAZARDOUS SUBSTANCES .................. .......................... 20
.................................
20. ADMINISTRATION.............................................................................................22
21. COUNTY'S LOBBYISTS.....................................................................................22
22. NOTICES..........................................................................................................22
23. GENERAL PROVISIONS...................................................................................23
EXHIBITS
A. Premises Map
B. Area "D" Parking Plan
County Const Grnd Lease 12-7-11 iii
E
this
THIS GROUND LEASE AGREEMENT (the "Lease") is made and entered into
day of , 20_ (the "Effective Date"),
BY AND BETWEEN COUNTY OF LOS ANGELES (the
"Lessor" and/or the "County"),
AND
RECITALS:
CITY OF WEST COVINA (The
"Lessee" and/or "City")
WHEREAS, Lessor is the fee owner of the real property containing
approximately 62,270 square feet of land for the new 129-space County parking lot
("Premises" - Area "D") adjoining the West Covina Library located at 1601 West
Covina Parkway, West Covina, California 91790, which is more particularly outlined in
Exhibit "A" and depicted in Exhibit "B," all attached hereto and incorporated herein by
this reference; and
WHEREAS, the City is the fee owner of real property located at 1444 West
Garvey Avenue, West Covina, California 91790, which includes land, building, and
improvements (parking lots, parking structures, lighting, signage and landscaping)
commonly referred to as Civic Center ("City Property"); and,
WHEREAS, the City and County have entered into Lease Agreement No. 19104,
dated January 4, 1972 ("Old County Lease") for the County to lease Off -Street Parking
from City and such Lease Agreement No. 19104 is set to expire without any further
extensions on January 4, 2023; and
WHEREAS, according to Lease Agreement No. 19104, dated January 4, 1972,
the County is leasing 100 parking spaces (Area "A") on City Property for the County
Public Library; and
WHEREAS, the City proposes to enter into a development agreement with CGM
Development, Inc. ("Developer") to develop approximately 118,000 square feet of the
City Property for the development of an office building and parking lot ("Office
Project"). The proposed project would include the City -owned parking area (Area "A")
currently leased to the County for the County Library parking and would result in the
reduction of 100 parking spaces that. the County is leasing from the City on City
Property; and
WHEREAS, the Developer proposes to cause the construction of a new 129
space parking lot on County owned land situated between the Court House and the
West Covina County Library. The construction cost of the new parking lot is estimated
to be approximately $500,000 and shall be constructed at no cost to the County using
only private funds; and,
County Const Grnd Lease 12-7-11
WHEREAS, Lessor voluntarily agrees to amend Lease Agreement 19104 to
eliminate 100 parking spaces (Area "A") that the County is currently leasing on City
Property for the County Library parking. Lessor further acknowledges that in light of the
pending expiration of Old County Lease 19104 on January 4, 2023, the construction of
a new 129 parking lot (Area "D") on the Premises will provide permanent long-term
parking to the Lessor and County Library, which is of benefit to the Lessor and County
Library patrons; and
WHEREAS, Lessor is prepared to ground lease the Premises to Lessee
pursuant to Government Code Sections 25365 and 26227, in order to effectuate the
improvements at no cost to the Lessor and which will be constructed solely with private
funds by the Developer; and
WHEREAS, the County will continue to have access to said 100 leased spaces
(Area "A") until the new parking lot (Area "D") is completed by the Developer and
accepted by the County; and
WHEREAS, the project to be built on the Premises by Lessee/Developer (the
"New County Parking Lot" — Area "D") shall consist of approximately 62,270 gross
square feet, contain 129 parking spaces [plus related site and landscaping
improvements] in accordance with the entitlements, permits, plans and specifications
issued or approved by the County of Los Angeles, all of which are hereinafter
collectively referred to as the "Improvements." The Premises, Improvements and all
changes and alterations thereto are hereinafter collectively referred to as the "Project."
NOW, THEREFORE, in consideration of the terms and conditions hereinafter
contained, and the foregoing recitals, each of which is deemed a contracted part hereof,
Lessor and Lessee agree as follows:
1. PREMISES: Lessor is the fee owner of the real property containing
approximately 62,270 square feet of land for the new 129-space County parking lot
("Premises" — Area "D") adjoining the west Covina Library located at 1601 West
Covina Parkway, West Covina, California 91790, which is more particularly outlined in
Exhibit "A" and depicted in Exhibit "B," all attached hereto and incorporated herein by.
this reference.
2. GROUND LEASE AND TERM THEREOF: For good and valuable
consideration receipt of which is hereby acknowledged, Lessor hereby leases to
Lessee, and Lessee hires from Lessor, the Premises, subject to the terms, covenants,
conditions, exceptions, and/or reservations as hereinafter set forth.
A. Full Disclosure of Site Condition.
(1) . The Premises currently includes landscaping and paved
areas, portions of which Lessee will cause to be demolished by Developer. Upon
execution of this agreement, Lessor shall provide Lessee with any and all information,
documents, records or studies that may disclose any or all known site defects, including
but not limited to the existence of soil contamination. In addition to Lessor providing full
County Const Grnd Lease 12-7-11 2
0
disclosure of any known site or soil defects, within 60 days of execution of this Lease,
Lessor will provide the Lessee the opportunity to perform all necessary tests,
inspections, reviews, studies and investigations respecting the Premises as so
improved as it considers necessary or appropriate to adequately evaluate the condition
and other aspects of the Premises, including a Phase I Environmental Hazards Report.
Lessee may within 30 days of the completion of the inspection notify Lessor in writing
that the condition of the Premises is not satisfactory to Lessee, in Lessee's sole
discretion and that the Lease is terminated. If Lessee does not give such notice,
Lessee accepts the Premises as so improved on an "AS IS WITH ALL FAULTS" basis
and, except for any soil contamination or other conditions as expressly set forth in this
Lease.
(2) Reservations. Lessee expressly agrees that this Lease and
all rights hereunder shall be subject to all encumbrances, reservations, licenses,
easements and rights of way: (a) existing as of the Effective Date, (b) otherwise
referenced in this Lease in, to, over or affecting the Premises for any purpose
whatsoever, or (c) consented to by Lessee. Without limiting the foregoing, Lessee
expressly agrees that this Lease and all rights hereunder shall be subject to all prior
matters of record and the right of County existing as of the Effective Date or otherwise
disclosed to or known to Lessee, as their interests may appear, to install, construct,
maintain, service and operate sanitary sewers, public roads and sidewalks, fire access
roads, storm drains, drainage facilities, electric power lines, telephone lines and access
and utility easements across, upon or under the Premises, together with the right of
County to convey such easements and transfer such rights to others. Notwithstanding
the foregoing or anything herein to the contrary, County agrees to cooperate with
Lessee, in Lessee's efforts to address title matters, if any, which would prevent Lessee
from proceeding with the Improvements, as long as such .efforts do not materially
adversely affect the County (e.g., by way of illustration only, cooperating with Lessee in
the relocation at Lessor's cost of any easements which interfere with the Improvements,
to the extent such relocation is reasonably acceptable to County).
B. Term. The term of this Lease (the "Term") shall extend for a period
not to exceed six (6) months, beginning upon notice of commencement delivered by the
Lessee to the Lessor (the commencement notice shall be delivered no later than six (6)
months from execution of this agreement) and terminating upon completion of
construction and acceptance of the improvements by the County, provided, however,
that in the event Lessee fails to commence construction of the Improvements within the
time provided in Section 7.B.(3) hereof; this Lease shall end and expire upon notice
from County. The term of this Lease may be extended six (6) additional months at the
option of the Lessee should additional time be needed to complete construction
documents and obtain appropriate County approvals, provided that Lessee shall give
County 30 days advance written notice of its intent to exercise the option. Lessee
agrees that all of County's existing leased parking pursuant to the Old County Lease
shall continue to be available to County throughout the option term, in the event Lessee
elects to exercise its option.
County Const Grnd Lease 12-7-11 3
•
3. LEASE CONSIDERATIONS
leasing the Premises to Lessee hereunder:
As additional consideration for Lessor
A. Lessee shall cause Developer to demolish and remove, at no cost
to the County, all of the improvements located within the Premises existing as the date
hereof in accordance with Section 7 hereof and shall abide by and comply with all
applicable local, State and Federal laws including without limitation those concerning
the removal of hazardous materials. Lessee shall cause Developer, at no cost to the
County, to construct or cause to be constructed the Improvements in accordance with
Section 6 hereof.
B. Lessee acknowledges that Lessor has a security interest in all
plans, drawings, specifications, documents evidencing governmental approvals or
partial approvals, permits, environmental documents, soil, engineering and planning
studies,. working drawings, architect agreements, construction contracts and
agreements pertaining to the Project, together with all amendments thereto (hereinafter
collectively called the "Development Documents"). . Lessee further acknowledges its
affirmative obligation to secure the full right, title and lien -free ownership interest in all
Development Documents. Upon any cancellation or termination of this Lease, Lessor,
or its assignee, shall immediately receive true copies of all Development Documents of
Lessee related to the development of the Lessee's Project. The Lessee shall, however,
retain its proprietary interest in the Development Documents and such documents may
not be used by the Lessor, other than use that is incidental to the maintenance, repair or
remodeling of the Improvements, without the prior express written consent of the
Lessee.
C. Lessee.shall perform or cause Developer to perform all obligations
required by this Lease, including those contained in the exhibits to this Lease. Lessor
and Lessee understand and acknowledge that Lessee intends to have all of its rights
and obligations under this Lease performed by Developer pursuant to a sublease to
Developer. Lessor understands and acknowledges that Developer will perform the
rights and obligations of Lessee pursuant to this Lease for the construction of the
Project. Notwithstanding the foregoing, Lessor and Lessee understand and
acknowledge that Lessee is primarily liable to Lessor for the performance of this Lease
and the construction of the Project.
D. Lessee acknowledges that all costs associated with the preparation
of any environmental documentation for compliance with the California Environmental
Quality Act and legal descriptions related to this Lease shall be solely Lessee's
responsibility.
E. , Lessee shall cause Developer to. provide all Development
Documents to Lessor for approval in accordance with Section. 6B. hereof.
County Const Grnd Lease 12-7-11 4
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4. USES: APPLICABLE LAWS:
A. Uses:
(1) Lessee shall cause Developer to construct on the Premises
the Lessee's Project as specified in Section 7 hereof for the purpose of providing a
parking lot to the County.
B. Compliance with Applicable Laws: The Lessee's Project, or any
part thereof, shall not be used or permitted to be used for any activity which constitutes
a nuisance. Subject to Lessee's right to contest in accordance with Section 4.C. hereof,
Lessee shall, at its sole cost and expense, conform to, and cause all persons using or
occupying any part of the Lessee's Project which is under Lessee's control to comply
with all Applicable Laws and rules and regulations governing the Premises that may be
in effect from time to time applicable to the construction of the Improvements and/or to
the use of the Lessee's Project. Lessee hereby warrants and covenants that the
construction of the Project shall not interfere with any functions of Lessor outside of the
Premises. Lessee covenants and agrees to indemnify and to hold Lessor harmless
from any penalties, damages, or charges imposed for any violation of any and all
Applicable Laws, whether occasioned by neglect, omission, or willful act of Lessee or
any person (other than Lessor, its officers, agents, employees, guests, and invitees) by
license, invitation, sublease, assignment, or any other arrangement with Lessee..
C. Right to Contest Applicable Laws: Lessee shall have the right to
contest, by appropriate judicial or administrative proceedings, without cost or expense
to Lessor, the validity or application of any present or future Applicable Laws which
restrict Lessee's use of the Project or which require Lessee to repair, maintain, alter, or
replace the Lessee's Project in whole or in part. Lessee shall not be in default for failing
to exercise its rights under this clause or forfailing to commence repairs, maintenance,
alterations, or replacement obligations imposed by such Applicable Laws, until a
reasonable time following the final judgment and conclusion of appeals in Lessee's
administrative and judicial proceedings, provided that Lessee protects Lessor and the
Project from. any lien by surety bond or other security satisfactory to Lessor. Lessor
may, but is not obligated to, join in the Lessee's contest but Lessor shall have full
subrogation rights in. the event of Lessee's failure to contest. Lessee's right to contest
must be exercised in such manner as to avoid any exposure of the Lessee's Project or
any part thereof to foreclosure or execution sale.
5. TAXES AND ASSESSMENTS:
A. Payment of Taxes: Lessee shall have sole responsibility to pay
promptly any applicable personal property taxes, real property. taxes, rental taxes,
excise taxes, business and occupation taxes and assessments, or taxes or charges of
any kind or nature whatsoever (hereinafter referred to collectively as "Taxes") levied or
assessed against the Lessee's Project, Lessee's operations on the Premises, or against
Lessee's possessory interest, by any government entity. Lessee's leasehold interest
may be subject to property taxation and Lessee agrees to pay any property tax levied
on any such interest.
County Const Grnd Lease 12-7-11 5
B. Indemnity: Lessee agrees to indemnify and hold Lessor harmless
from the payment of Taxes, including any penalties and interest associated therewith.
Lessee further agrees to prevent said Taxes from becoming delinquency liens upon the
Project, and except where Lessee notifies Lessor in writing that Lessee is contesting or
proposes to contest Taxes, to allow Lessor to pay such Taxes which have become
more than 90 days delinquent. Lessor shall in no way be obligated to pay such Taxes
which come delinquent; but, if Lessor makes such payments, they will become
immediately due and payable to Lessor by the Lessee and shall include any Late
Charge or penalties assessed.
C. Lessee's Right to Contest Taxes: Lessee shall have the right, at its
own expense, to contest the amount or validity of any Taxes by appropriate proceedings
diligently conducted in good faith which shall operate to prevent the collection of any
Taxes so contested. Pending final judgment and appeals of any such legal
proceedings, Lessor shall not have the right to pay, remove, or discharge any Taxes
thereby contested, provided that Lessee shall protect Lessor and the Lessee's Project
from any lien by adequate surety bond or other security deemed appropriate by Lessor.
D. Proration of Taxes: If, at any time during the term of this Lease,
any Taxes are levied for a benefit which shall have a useful life longer than the
remaining Lease Term then whether or not such Taxes are actually paid in installments,
Lessee shall only be responsible to pay that portion of the Taxes which would have
been payable during the term of this Lease, had such Taxes been paid in installments.
If Taxes become due and payable after the expiration or termination of the Lease,
Lessee, within 15 days of such expiration or termination, shall pay Lessor its prorata
share of such Taxes. To the extent that Lessee pays such taxes in excess of its prorata
share prior to termination, Lessor shall promptly return the excess upon expiration or
other termination of the Lease.
6. UTILITIES:
A. Consent from Lessor: Lessee or Developer shall not enter into any
contract or agreement with any governmental agency or body or public utility with
reference to sewer lines, water lines, street improvements, street lighting, or utility
connections, lines, or easements without the prior written consent of Lessor which
consent shall not be unreasonably withheld or delayed. All costs associated with
bringing .required utilities to the Lessee's Project, including related professional and
service charges, and the costs of connections to the utility system shall be considered
part of the construction cost of the Project and shall be solely the Lessee's
responsibility. Notwithstanding, Lessor acknowledges and agrees that Lessor's
approval of plans shall also authorize Lessee or Developer to construct related utility
connections as may be deemed appropriate and necessary to complete the Project.
This section shall not prevent the Lessee or Developer from entering into any
construction agreement with any non -governmental entity or non -utility company to
cause the construction of such utility improvements.
County Const Grnd Lease 12-7-11 6
B. Lessor Utility Services: To the extent that the Lessee uses water or
electricity financed and/or maintained in whole or in part by Lessor, both during and.
after construction of the Improvements, the charge for such water and electrical
services shall be paid by Lessee (or Lessee shall cause Developer to pay), together
with a prorata share of the capital costs associated with any necessary additions or
improvements to the utility system at the same rate given to other users.
C. Ownership: As between County and Lessee, title to all utility lines,
transformer vaults and all other utility facilities constructed or installed by Lessee upon
the Premises shall vest in County upon construction or installation to the extent that
they are not owned by a utility company or other third party provider. Notwithstanding
that title shall vest in County, all utility lines, transformer vaults and all other utility
facilities (other than any sewer, storm drain or other utility systems_ which have been
dedicated to and accepted by County pursuant to a dedication separate from this
Lease), .shall be maintained, repaired, and replaced, if and as needed, by Lessee or
Developer during the Term hereof.
7. CONSTRUCTION AND LIENS:
A. Development Work.
(1) Development Plan: Promptly following the Effective Date,
Lessee shall, or shall cause Developer to commence the performance of the
Development Work (as hereinafter defined) on the Premises described in the County
approved development plan prepared by Lessee (the "Development Plan"), which
approved Development Plan shall be in accordance with Area "D" as depicted in
Exhibit B . The construction work described in the Development Plan, including the
Improvements, landscape and other site work approved by County and to be performed
in connection with the work described in such Development Plan and the Development
Documents as defined in Section 3B hereof, is referred to collectively herein as the
"Development Work."
(2) Implementation of Development Plan: There shall be no
changes, modifications or exceptions to the Development Plan, except as expressly
approved in advance in writing by the County or otherwise in accordance with this
Section 7, which approval shall not be unreasonably withheld. The scope, design,
density, site coverage, layout and open space, view corridors, height, construction
materials, landscaping, landscaping and other improvement specifications pertaining to
the Development Work shall be in accordance with the Development Plan, and shall be
subject to County's reasonable approval as set forth in this Section 7. Lessee shall be
responsible for the acquisition and compliance with all required governmental approvals
(including, without limitation, City, planning and entitlement approvals) for the
Development Work. Lessee shall be solely responsible for all costs and expenses
incurred in connection with the design, entitlement and construction of the Development
Work. The remaining sections of this Section 7 pertain to the construction of the
Development Work and to any other Work (as defined below) which Lessee may be
required or desire to make to the Premises during the Term. The Lessor agrees that it
shall assist Lessee and/or Developer to obtain all necessary County approvals to
County Const Grnd Lease 12-7-11 7
facilitate the development and implementation of the Development Plan, including but
not limited to permits, plan check and approval, and related inspections.
B. Construction of Improvements:
(1) Construction: Construction of the Improvements (all of
which construction is hereinafter referred to sometimes as "Work") shall be made
subject to the conditions hereinafter set forth, which Lessee covenants to observe and
perform.
(2) Governmental Approvals: Work shall not be undertaken until
Lessee shall have provided and paid for, so far as the same may be required, from time
to time, all applicable municipal and other governmental permits and authorizations of
the various municipal departments and governmental agencies having jurisdiction over
the work. No zoning changes or variances may be obtained except with Lessor's prior
written consent, provided_ that Lessor shall not unreasonably withhold or delay its
consent to any petition or application for zoning change or variance as may be required
for the construction of the Improvements and the uses of the Premises and
Improvements permitted pursuant to this Lease. In the event, however, that any
application or petition is rejected or returned, for revision and Lessee is making a good
faith, reasonably diligent effort to complete the necessary revisions to the plans or
applications, then Lessee shall be granted an additional six months within which to
obtain the necessary approvals
(3) Commencement and Completion of Construction: All Work
shall be completed at the expense of Lessee, including capital and financing costs, and
without expense to Lessor. All Work shall be prosecuted to completion with due
diligence. Notwithstanding the foregoing, construction of the Improvements in
accordance with the Development Plan shall be commenced within two (2) months of
the issuance. of all necessary permits and shall be completed (except normal punch -list
items), within four (4) months following the commencement of construction. For
purposes of this Lease, the commencement of construction shall be the first date upon
which construction activity for the Improvements is begun. Notwithstanding the
foregoing, if Lessor fails to respond to any request for approval described in Section
7.D. hereof within the time frames provided therein, then Lessee shall be entitled to a
day -for -day extension of the time periods set forth in this Section 7.13.
(4) Performance and Payment Bonds: Prior to the execution of
construction, Lessee shall cause the Developer to file surety bonds with the Lessee as
stated in Paragraph 11.13.2. hereof.
County Const Grnd Lease 12-7-11
C. CONSTRUCTION STANDARDS:
(1) General Construction Standards: In connection with all
Work, demolition, construction, alteration, or repair work permitted herein, Lessee shall
take all reasonably. necessary measures to minimize any damage, disruption or
inconvenience caused by such Work and shall make adequate provision for the safety
and convenience of all persons, affected thereby. Lessee shall repair, at its own cost
and expense, any and all damage caused by such Work.
(2) Utility Work: Any work performed by or on behalf of Lessee
or any occupant of the Premises to connect to, repair, relocate, maintain or install any
storm drain, sanitary sewer, water line, gasoline, telephone conduit or any other public
utility service shall be performed so as to minimize interference with the provision of
such services to occupants of the West Covina Library and other persons.
(3) Compliance with Applicable Laws: All improvements on the
Premises shall be constructed in compliance with all applicable local, state and federal
Applicable Laws. Lessee shall have the sole responsibility for obtaining all necessary
permits and shall make application: for such permits directly to the person or
governmental, agency having jurisdiction thereover. Lessor shall assist Lessee and/or
its Developer in obtaining all . necessary approvals and acknowledges' that this Lease
shall serve as authorization to. seek application with owner's' approval to all necessary
governmental or utility service in compliance with the Development Plan.
(4) - Prevailing Wages: Lessee has concluded that the Project is
not subject to prevailing wage requirements because it is privately funded. However,. if
and to the extent applicable, Lessee shall have sole responsibility for ensuring
compliance by Lessee and its Developer with all applicable provisions of the Labor
Code of the State of California, including without limitation the prevailing wage laws, in
connection with the Project.
(5) Construction Safeguards:Lessee shall erect and properly
maintain at all times, as required by the, conditions and the progress of Work performed
by Lessee and/or Developer, all necessary safeguards for the protection of workers and
the public.
(a) Rights of Access: Representatives of Lessor shall
have the right of reasonable access to the Premises and the improvements thereon at
normal construction hours during the period of construction, for the purpose of
ascertaining compliance with the terms of this Lease, including, but not limited to, the
inspection of the construction work being performed. Lessor's access shall be
reasonably calculated to minimize interference with Lessee's construction and/or
operations.
County Const Grnd Lease 12-7-11 9
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(b) Notice of Completion: Upon completion of
construction of any building on the Premises, Lessee shall file or cause to be filed in the
Official Records of the County of Los Angeles a Notice of Completion (each a "Notice of
Completion") with respect to said Improvements, and Lessee shall provide for Lessor a
diagram and shall label and identify all electrical panels, circuit breakers,. switches, and
plumbing shut off valves as to areas controlled both on the drawings and on the breaker
panels and valves, if any in the parking lot. Upon completion Lessee shall furnish the
County's Chief Executive Office, Real Estate Division each with one complete set of
electronic reproducible as -built drawings.
D. APPROVAL OF PLANS:
(1) Approval of Plans, Drawings and Related Documents:
Subject to the terms of this Lease, the Lessor shall have the right to review and approve
all Development Documents, including any material changes or amendments thereto,
which approval shall not be unreasonably withheld or delayed. Lessee shall submit
three copies of all Development Documents to Lessor. Lessor's failure to respond to
the Development Documents within 30 days following receipt of same shall be deemed
approval thereof. Lessor's approval shall not be unreasonably withheld or delayed.
However, such Lessor review and approval shall not relieve Lessee of any obligations
under this Lease, including any regulatory requirements imposed by federal,. state or
local governments.
(2) Changes to Plans Following Approval` No material changes
to the approved plans and specifications shall . be made without the prior written
approval of the Lessor. Any such proposed changes shall be submitted to Lessor for
Lessor's approval or disapproval. Lessor shall have 10 days following receipt of the
proposed changes in which to respond and set forth in detail the reasons for
disapproval. Lessor's failure to approve such proposed changes within .the 10-day
period shall be deemed approval thereof.
E. PROTECTION OF LESSOR:
(1) No Consent of Lessor: Nothing in this Lease shall be
construed as constituting the consent of Lessor, express or implied, to the performance
of any labor or the furnishing of any materials or any specific improvements, alterations
of, or repairs to, the Premises or any part thereof by any contractor, subcontractor,
laborer or materialman, nor as giving Lessee or any other person any right, power or
authority to act as agent of or to contract for, or permit the rendering of, any services, or
the furnishing of any materials, in such manner as would give rise to the filing of
mechanics' liens or other claims against the fee of the Premises or the Lessee's Project.
County Const Grnd Lease 12-7-11 10
(2) Protection Against Liens: Lessor shall have the right at all
reasonable times to post, and keep posted, on the Premises any notices which Lessor
may deem necessary for the protection of Lessor , and of the Premises and the
improvements thereof from mechanics' liens or other claims. Lessee shall give Lessor
five days prior written notice of the commencement of any work to be done on the
Premises to enable Lessor to post such notices. In addition, Lessee shall make, or
cause to be made, prompt payment. of all monies due and legally owing to all persons
doing any work or furnishing any materials or supplies to Lessee or any of its
contractors or subcontractors. in connection with the Premises and the Improvements
thereon in accordance with Section 10 hereof.
(3) Notice: Should any claims of lien be filed against the
Premises or the Improvements thereon, or any action affecting the title to the Premises
or the Improvements thereon be commenced, the party receiving notice of such lien or
action shall forthwith give the other party written notice thereof.
8. MAINTENANCE OF LESSEE'S PROJECT:
A. Lessor Responsibilities: Lessor shall not be required or obligated
to make any changes, alterations, additions, improvements, or repairs in, on, or about
the Project or any part thereof, or any improvements thereon during the term of this
Lease.
B. Lessee's or Developer's Responsibility: Throughout the term of this
Lease, Lessee shall, at Lessee's sole cost and expense, maintain the Project in good
condition and repair and in accordance with the requirements of: (i) all Applicable Laws;
(ii) the insurance underwriting board or insurance inspection bureau having or claiming
jurisdiction; and (iii) any insurance companies insuring all or any part of the Lessee's
Project, if applicable. .
C. Waste: Lessee shall not commit or permit the commission of any
waste upon the Premises. Lessee shall not store or dispose of any waste or by-
products of Lessee's operation on the Premises.
9. NON -SUBORDINATION AND NON -ASSIGNMENT AS SECURITY: This is
a non -subordinated lease. Except as may be provided in Section 6, UTILITIES, or this
Section 9, Lessee agrees that it shall not create or suffer any encumbrance upon the
Premises or the Improvements without the written consent of Lessor. Lessee shall not,
without obtaining the written consent of Lessor, assign any of Lessee's interest under
this Lease as security. Any consent required by this Section 9 shall be evidenced by
letter signed by Lessor's Chief Executive Office. Lessor shall be provide a response to
any request for consent pursuant to this Section 9 within 30 days of such request;
provided, however, that Lessor's failure to timely. provide a response shall not be
construed as consent. Lessee agrees, without any cost or expense to Lessor, to
execute any instrument which is necessary or is requested by Lessor to further effect
the non -subordination of this Lease.Lessee agrees that in order to obtain Lessor's
consent hereunder: (a) any financing obtained for construction of the Project shall be
and shall always remain subordinate to this Ground Lease, and (b) the amount of
County Const Grnd Lease 12-7-11 11.
Lessee's endowment/investment funds collateral to any proposed financing shall
exceed the amount of said financing at all times during the term hereof.
Notwithstanding the foregoing, the Lessor acknowledges and agrees that in order to
effectuate the purpose of this lease, Lessee shall have the right to sublease this Lease
to the Developer.
10. LIENS:
A. General: Subject to the provisions of Section 9 regarding NOW
SUBORDINATION AND NON -ASSIGNMENT AS SECURITY, Lessee hereby
covenants to keep the Premises and every part thereof free and clear of any and all
liens or encumbrances of any kind whatsoever created by Lessee's acts or omissions
and/or created by the performance of any labor or furnishing of any material, supplies,
or equipment contemplated hereunder. Lessor covenants to keep the Lessee's Project
and every part thereof free and clear of any and all liens or encumbrances of any kind
whatsoever created by Lessor's acts or omissions or those of its agents or employees,
and shall indemnify and hold Lessee harmless from any such Lessor created liens or
demands. Lessee further agrees to hold Lessor and the Premises and all parts thereof
free and harmless from any such Lessee -created liens, claims, or demands, and any
and all costs, damages or liability in connection therewith, together with reasonable
attorney's fees and all Actual Cost and expenses incurred by Lessor in negotiating,
settling, defending, and otherwise protecting the Premises or Lessee's Project or any
part thereof against such liens, claims or demands.
B. Mechanics' and other Liens: Lessee shall pay, or cause to be paid,
the total cost and expense of all works of improvement as that phrase is defined in the
applicable mechanics' lien law in effect when the Work begins. Lessee shall not permit
any mechanic's, materialman's, contractor's, subcontractor's or other lien, arising out of
the performance of the Lease, to stand against the Premises or Lessee's Project, or any
part thereof. If any such lien shall be filed against the Premises or Lessee's Project,
Lessee shall cause the same to be discharged within ten days after actual notice of
such filing, by payment, deposit, or bond. If Lessee fails to discharge any such lien,
Lessor may, but shall not be obligated to, discharge the same, and any amount so paid
or deposited by Lessor and all Actual Costs and expenses incurred by Lessor, including
reasonable attorney's fees, shall become immediately due and payable by Lessee to
Lessor, together with interest thereon computed at the rate of seven percent per annum.
If Lessee desires to contest any such lien, Lessee shall notify Lessor in writing of
Lessee's intention to do so within ten days after the filing of and service upon Lessee of
such lien, or lose the right to contest. In such case, provided that Lessee shall furnish
the bond required by California Civil Code Section 3143 (or any comparable statute
hereafter enacted for providing a bond freeing the Premises and Lessee's Project from
the effect of such lien), Lessee shall not be in default until five days after the final
determination of the validity thereof, within which time Lessee shall satisfy and
discharge any such lien to the extent held valid, but the satisfaction and discharge of
any such lien shall not, in any case, be delayed until execution is had upon any
judgment rendered thereto, and such delay. shall be a material default of Lessee
hereunder. In the event of any such contest, Lessee shall protect and indemnify Lessor
against all loss, Actual Cost, expense and damage, including reasonable attorney's
fees, resulting therefrom.
County Const Grnd Lease 12-7-11 12
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11. INDEMNIFICATION AND INSURANCE
A. . To the fullest extent permitted by law, the Developer and or Lessee
shall indemnify, defend, and hold harmless the Lessor, its Special Districts, elected and
appointed officials, the Board of Supervisors, officers, employees, agents, and trustees
(the Indemnified Parties) from and against any and all liability, loss, injury, or damage,
including, but not limited to, demands, claims, lawsuits, actions, proceedings,
judgments, settlements, awards, fees, costs, and expenses (including any fees of
accountants, attorneys, experts, or other professionals, and costs of investigation,
mediation, arbitration, litigation, and appeal), which arise out of, pertain to, or relate to
the Work, this Lease, or the Project performed by the Developer and/or Lessee or its
Subcontractors and Subconsultants, or anyone directly or indirectly engaged by the
Developer and or Lessee relating to or in connection with the Work, this Lease or the
Project, including, but not limited to, any design -related services and/or non -design -
related services (including, but not limited to, construction . services). The Developer
and or Lessee's duty to defend, indemnify, and hold harmless the Indemnified Parties
includes, but is not limited to, bodily injury, death, property damage, and other damage
(including, but not limited to, economic loss, and liability arising from contract, tort,
patent, copyright, trade secret, or trademark infringement).
B. The indemnity and defense obligations provided for in this section
shall survive the termination, rescission, breach, abandonment, or completion of the
Work or the obligations of this Lease. If the Developer and or Lessee fails to perform
any of these indemnities or defense obligations, Lessor may in its discretion charge the
Developer and or Lessee for Lessor's costs and damages resulting therefrom and
deduct such amounts owed hereunder, if any.
1. Insurance: Without limiting Lessee's indemnification of Lessor,
and during the Term of this Lease, Lessee shall, or shall have Developer, provide and
maintain the following insurance. Lessee, at its sole option, may satisfy all or any part of
this insurance requirement through use of a program of self insurance (self -funding of
its liabilities). Certificate evidencing coverage or letter .evidencing self -funding will be
provided to Lessor after execution of this Lease at Lessor's request. Such insurance
shall be primary to and not contributing with any other insurance or self-insurance
programs maintained by County, and such coverage shall be provided and maintained
at Lessee's or Developer's own expense.
a. Evidence of Insurance. Such insurance shall be provided by
insurer(s) satisfactory to County and evidence of such insurance shall be delivered to
County at the Chief Executive Office, Real Estate Management Division, 222 South Hill
Street, Los Angeles. Certificate(s) or other evidence of coverage satisfactory to County
shall be delivered to County prior to the Commencement Date and shall:
(i) Specifically identify this Lease;
(ii) Clearly evidence all coverage required in this Lease;
County Const Grnd Lease 12-7-11 13
(iii) Contain the express condition that insurer will use its
best efforts to give written notice by mail to County at least thirty (30) days in advance of
cancellation for all policies evidenced on the certificate of insurance; and
(iv) Identify any deductibles or self -insured retentions
exceeding $25,000.
b. Insurance Coverage Requirements. Lessee or Developer
shall maintain the following:
(i) General Liability insurance (written by ISO policy form
CG 00 01 or its equivalent and endorsed to name County as an additional insured, with
limits of not less than the following:
General Aggregate: $ 2 million
Products/Completed Operations : $ 1 million
Personal and Advertising Injury: $ 1 million
Each Occurrence: $ 1 million
(ii) Automobile Liability insurance: Written on ISO policy
form CA 00 01 or its equivalent with a limit of liability of not less than $1 million for bodily
injury property damage, in combined or its equivalent split limits, for each single
accident. Such insurance shall cover liability arising out of Contractor's use of vehicles
pursuant to this Project, including owned, leased, hired, and/or non -owned autos, as
each may be applicable. -Lessee will provide pollution insurance for the transport of
waste generated and the coverage will be at least as broad as provided with the ISO
endorsement policy form CA 99 48 03 06.
(iii) Workers Compensation and Employers' Liability
insurance or qualified self-insurance satisfying statutory requirements, which includes
Employers' Liability coverage with limits of not less than $1 million per accident. If
leasee will provide leased employees, or, is an employee leasing or temporary staffing
firm or a professional employer organization (PEO), coverage also shall include an
Alternate Employer Endorsement (providing scope of coverage equivalent to ISO policy
form WC 00 03 01 A) naming the County as the Alternate Employer, and the
endorsement form shall be modified to provide that County will receive not less than
thirty (30) days advance written notice of cancellation of this coverage provision. If
applicable to lesee's operations, coverage also shall be arranged to satisfy the
requirements of any federal workers or workmen's compensation law or any federal
occupational disease law.
County Const Grnd Lease 12-7-11 14
c. General Liability or Owners/Contractors Protective (OCP).
insurance (written on ISO policy form CG 00 01 or its equivalent) with limits of not less
than the following:
General Aggregate
$ 2 million
Products/Completed Operations Aggregate: $ 2 million
Personal and Advertising Injury: $ 1 million
Each Occurrence:
$ 1 million
The Lessor also shall be named as an additional insured
(ISO form CG 20 10 or equivalent) under the Contractor's policy.
d. Automobile Liability Insurance (written ISO policy form CG
00 01 or its equivalent) with a limit of liability of not less than $2 million for each
accident. Such insurance shall include coverage for all "owned", "hired", and "non -
owned" vehicles (or for "any auto") utilized by Contractor.
e. Lessee shall cause the Developer to provide Workers
Compensation and Employers' Liability insurance or qualified self-insurance satisfying
statutory requirements, if Developer has employees. Lessee shall cause Developer to
require all subcontractors or other persons performing work on the Project to obtain
workers compensation as required by law which includes Employers' Liability coverage
with limits of not less than $1 million per accident. If Contractor will provide leased
employees, or, is an employee leasing or temporary staffing firm or a professional
employer organization (PEO), coverage also shall include an Alternate Employer
Endorsement (providing scope of coverage equivalent to ISO policy form WC 00 03 01
A) naming the County as the Alternate Employer, and the endorsement form shall be
modified to provide that County will receive not less than thirty (30) days advance
written notice of cancellation of this coverage provision. If applicable to Contractor's
operations, coverage also shall be arranged to satisfy the requirements of any federal
workers or workmen's compensation law or any federal occupational disease law.
2 Performance Security Requirements. Prior to execution of
the Construction Contract between Lessee and its Developer, Lessee shall cause the
Developer to shall file surety bonds with the Lessee in the amounts and for the
purposes noted below. All bonds issued in compliance with the Construction Contract
shall be duly executed by a solvent surety company that is authorized by the State of
California and is satisfactory to the Lessee, and it shall pay all premiums and costs
thereof and incidental thereto.
Each bond shall be signed by both the Lessee's Developer
(as Principal) and the Surety.
County Const Grnd Lease 12-7-11 15
The Lessee shall require its Developer to provide. two surety
bonds with good and sufficient sureties: the first in the sum of not less than 80% of the
Contract price to assure the payment of claims of material men supplying materials to
the Developer, subcontractors and mechanics and laborers employed by the Developer
on the Work and the second in the sum of not less than 100% of the Contract price to
assure the faithful performance of the Construction Contract.
a. The "Materials and Labor Bond" (or "Payment Bond") shall
be so conditioned as to insure to the benefit of persons furnishing materials for or
performing labor upon the Work. This bond shall be maintained by the Developer in full
force and effect until the Work is completed and accepted by the Lessee, and until all
claims for materials, labor and subcontracts are paid.
b. The "Bond for Faithful Performance" shall be so conditioned
as to assure the faithful performance by the Developer of all Work under said
Construction Contract, within the time limits prescribed, including any maintenance and
warranty provisions, in a manner that is satisfactory and acceptable to the Lessee, that
all materials and workmanship supplied by Developer will be free from original or
developed defects, and that should original or developed defects or failures appear
within a period of one year from the date of Acceptance of the Work by the Lessee, the
Developer shall, at Developer's own expense, make good such defects and failures and
make all replacements and adjustments required, within a reasonable time after being
notified by the Lessee to do so, and to the approval of the department. This bond shall
be maintained by the Developer in full force and effect during the performance of the
Work under this Lease and for a period of one year after acceptance of the Work by the
Lessee.
Should any surety or sureties upon said bonds or any of
them become insufficient or be deemed unsatisfactory by the Lessee, said Developer
shall replace said bond or bonds with good and sufficient sureties within 10 days after
receiving notice from the Lessee that the surety or sureties are insufficient or
unsatisfactory.
Lessee shall stipulate in the Construction Contract that no
further payment shall be deemed due or will be made to Developer until the new
sureties shall qualify and be accepted by the Lessee.
12. REPAIR AND RESTORATION:
A. If, during the Term of this Lease, the Improvements are damaged
due to a risk covered by insurance maintained under Section 11 of this Lease, Lessee
shall cause the damage to be repaired and the Improvements restored to substantially
the same condition as they were in immediately before such damage.
County Const Grnd Lease 12-7-11 16
B. If, during the Term of this Lease, the Improvements are damaged
due to a risk not covered by insurance maintained under Section 11 of this Lease, and
whether or not such damage is substantial, Lessee may elect either to cause the
damage to be repaired and the Improvements restored to substantially the same
condition as they were immediately before the damage or to terminate this Lease, and
Lessee shall restore the Premises to its previous condition. Said election shall be made
by written notice to Lessor within 60 days of the occurrence of the damage.
C. If Lessee is required or elects to - repair any damage to the
Improvements, such damage shall be repaired and the Improvements restored to
substantially the same condition as they were in immediately before the damage as
promptly as is reasonably possible. To the extent the damage is due to a risk covered
by insurance maintained under Section 11 of this Lease, such repairs shall be made
from the proceeds of such insurance and -the proceeds of such insurance shall be made
available to Lessee for such purpose. All work shall be performed in a good and
workmanlike manner and shall be completed as promptly as is reasonably possible and
in accordance with all applicable public Applicable Laws, ordinances and regulations.
Commencement of the repair and restoration shall require (a) securing. the area to
prevent injury to persons and/or vandalism to the Improvements and (b) the placement
of a work order or contract for obtaining the labor and materials to accomplish the repair
and restoration. In no event shall Lessee be required to repair, replace or restore any
damaged equipment, personal property, or trade fixtures of Lessor located in or about
the Improvements, , it being understood that the repair, replacement, or restoration
thereof shall be the sole responsibility and expense of Lessor.
D. Notwithstanding any provision contained in this Lease to the
contrary, if the Applicable Laws existing at the time of the damage do not permit the
repair or restoration, either party may terminate this Lease immediately by giving written
notice to the other party. If this Lease is terminated pursuant to any of the provisions in
this Section 12, the proceeds of any and all insurance maintained under Section 11.13 of
this Lease shall be the sole property of Lessee and shall, if received by Lessor, be
promptly paid to Lessee; however, the proceeds are to be used first to restore the
Premises to a condition substantially the same as that existing immediately prior to such
damage.
(1) Lessee waives the provisions of California Civil Code
Sections 1932(2) and 1933(4) which relate to termination of leases when the thing
leased is destroyed and agrees that such event shall be governed exclusively by the
terms of this Lease.
13. DEFAULT:
- . A. Material Default: The occurrence of any of the following shall
constitute a material default and breach of this Lease, which shall allow Lessor, in
addition to any other rights or remedies at law or in equity, to terminate this Lease:
County Const Grnd Lease 12-7-11 17
(1) A failure by Lessee to observe and perform Lessee's
Obligations hereunder when such failure continues for 30 days after written notice
thereof to Lessee; provided, however, that if the nature of such default is such that the
same cannot reasonably be cured within such 30 day period, Lessee shall not be
deemed to be in default if Lessee shall within such period commence such cure and
thereafter diligently prosecute the same to completion. Failure to observe and perform
Lessee's Obligations shall not include those instances where the Premises are not in
use because of remodeling, repairs, or the replacement of equipment, provided that
such remodeling, repairs, and replacement are undertaken and completed in a prompt
manner by Lessee.
(2) A default under Section 16 of this Lease..
B. Remedies: If Lessee defaults under this Lease, Lessor, without
further notice to Lessee shall, in addition to any other remedies available by Law or
equity, have one or more.of the following remedies at Lessor's election:
(1) Without barring later election of any other remedy and
without terminating Lessee's right to possession of the Lessee's Project, or any part
thereof; Lessor may require strict performance of all covenants and obligations herein
as the same shall accrue or become due, without terminating this Lease, and Lessor
shall have the right of action therefor without awaiting the end of the Lease term.
(2) Declare the Lease terminated upon ten days prior written
notice to Lessee and Developer. Upon the giving of notice of such termination to
Lessee, all of Lessee's rights in the Premises and the Improvements shall terminate.
C. Equitable Relief: Nothing contained herein shall affect, change, or
waive any rights of Lessor or Lessee to obtain equitable relief when such relief is
otherwise appropriate, or to obtain the relief provided by Chapter 4 (commencing with
Section 1159) of Title 3 of Part 3 of the Code of Civil Procedure, relating to actions for
unlawful detainer, forcible entry, and forcible detainer.
D. . Cumulative Remedies: The remedies of Lessor as provided above
are cumulative and in addition to, rather than exclusive of, any other remedy of Lessor
herein given or that may be permitted by Law. Any lawful re-entry as provided for
herein shall not make Lessor liable_ in damages or guilty of trespass because of any
such lawful re-entry.
14. WAIVER OF CONDITIONS OR COVENANTS: Any. waiver by Lessor of
any breach or any one or more of the covenants, conditions, terms and agreements of
this Lease shall not be construed to be a waiver of any subsequent or other breach of
the same or of any other covenant, condition, term, or agreement of this Lease, nor
shall failure on the part of Lessor to require exact, full and complete compliance with
any of the covenants, conditions, terms, and agreements of this Lease be construed as
in any manner changing the terms hereof, nor shall the terms of this Lease be changed
or altered in any manner whatsoever other than by written agreement between Lessor
and Lessee. No delay, failure, or omission of Lessor to re-enter the Premises or to
County Const Grnd Lease 12-7-11 18
exercise any right, power, privilege, or option, arising from any default shall impair any
such right, power, privilege, or option or be construed as -a waiver of or acquiescence in
such default or as a relinquishment of any right. No notice -to Lessee shall be required
to restore or revise "time is of the essence" after the waiver by Lessor of any default.
No option, right, power, remedy, or privilege of Lessor shall be construed as being
exhausted by the exercise thereof in one or more instance. The rights, powers, options,
and remedies given Lessor by this Lease shall be cumulative.
15. EMINENT DOMAIN: If the whole or any part of the Premises shall be
taken by any paramount public authority under the power of eminent domain, then the
Term of this Lease shall cease as to the part so taken from the day the possession of
that part shall be taken for any public purpose, and from that day Lessee shall have the
right to either cancel this Lease or to continue . in the possession of the remainder of
these Premises under the terms herein provided. All damages awarded for such taking
shall belong to and be the .property of Lessor provided, however, that Lessor shall not
be entitled to any portion of the award made for loss of structures, buildings, or other
improvements or personal property, equipment, and trade fixtures belonging to Lessee
immediately prior to the taking of possession by the condemning authority.
16. ASSIGNMENT/SUBLETTING:
A.. No Assignment: Lessee shall not, without the prior written consent
of Lessor, either directly or indirectly give, assign, hypothecate, encumber, transfer,.or
grant control of this Lease or any interest, right, or privilege therein, or sublet the whole
or any portion of the Premises, or license the use of the same in whole or in part. In
addition, for purposes of this Section 16, County consent shall require a written
amendment to this Lease,. which amendment must be formally approved and executed
by the parties. Said consent shall not be unreasonably withheld. For purposes of this
provision, the following acts of Lessee shall be considered an assignment requiring the
prior written consent of Lessor to be effective:
(1) Any disposition(s) that effectuates a change in the majority
control of Lessee to any person(s), corporation, partnership, or legal entity other than
the majority controlling interest therein at the time of execution of this Lease; and
(2) Any assumption, assignment, delegation, or takeover of any
of the Lessee's duties, responsibilities, obligations, or performance of same hereunder
by any entity other than the Lessee (whether through assignment, subcontract,
delegation, merger, buyout, or any other mechanism), with or without consideration, for
any reason . whatsoever, except Lessor acknowledges and understands that the
Improvements and Work will be performed by Developer pursuant to a contract between
the City and the Developer..
In' the event one of the above occurs without County's
express prior written approval, such occurrence shall constitute a material breach of this
Lease which shall entitle County, at its discretion, to terminate this Lease. In the event
of such termination, County shall be entitled to pursue the same remedies against
Lessee as it could , pursue in the event of default by Lessee pursuant to the terms
hereof, including without limitation Section 13 at law and in equity.
County Const Grnd Lease 12-7-11 19
B. No Involuntary Assignment: Neither this Lease nor any interest
therein shall be assignable or transferable in proceedings in attachment, garnishment or
execution against Lessee, or in voluntary or involuntary proceedings in bankruptcy or
insolvency or receivership taken by or against Lessee, so that the same and the making
by Lessee of any general assignment for the benefit of creditors; or the filing of a
petition to have Lessee adjudicated a bankruptcy, or the filing of a petition for
reorganization or arrangement under any law relating to bankruptcy unless, in the case
of a petition filed against Lessee, the same is dismissed within 60 days; or the
appointment of a trustee. or receiver to take possession of substantially all of Lessee's
assets located at the Lessee's Project or of Lessee's interest in this Lease, when such
seizure is not discharged within 60 days, shall be a material default under this Lease.
C. Notwithstanding the foregoing, Lessee may sublet the whole or any
part of the Premises to the Developer without first obtaining Lessor's prior consent and
without a formal amendment to this Lease: provided, however, that no such subletting
shall relieve Lessee of any liability under this Lease.
17. OWNERSHIP OF IMPROVEMENTS DURING TERM: Subject to
Section 6.0 hereof, until expiration or sooner termination of this Lease, the
Improvements and all alterations, additions, or betterments made thereto by Lessee
shall be owned by Lessee. Lessor shall have no right, title or interest therein except as
expressly set forth in this Lease; provided, however, that Lessee's rights and powers
with respect to the Improvements are subject to the terms and limitations of this Lease.
Once constructed, the Improvements shall be transferred to the Lessor.
18. REVERSION OF IMPROVEMENTS AND SURRENDER: At the
expiration or sooner termination of the Term of this Lease, at the election of Lessor, and
without notice to Lessee, all structures, buildings, Improvements and all alterations,
additions, and betterments thereto, and all other improvements made to or upon the
Premises shall remain upon and be surrendered with the Premises as part thereof and
title thereto shall automatically vest in Lessor without compensation therefor to Lessee.
19. .HAZARDOUS SUBSTANCES:
A. Definition: For purpose of this Lease, the term Hazardous
Substances shall be deemed to include "hazardous substances" as defined in
California Health and Safety Code Section 25316, and those chemicals and substances
identified pursuant to Health and Safety Code Section 25249.8.
B. Warranties and Representations:
(1) Lessee hereby warrants and represents that it will not cause
the introduction, use, storage, or disposal of any Hazardous Substances on or about the
Premises without the prior written consent of Lessor, except to the extent that
construction materials, asphalt, sealers and other materials used in the ordinary course
of construction of the improvements may constitute hazardous substances.
County Const Grnd Lease 12-7-11 20
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(2) - Lessee hereby warrants and represents that it shall comply
with all Applicable Laws and regulations concerning the use, release, storage, and
disposal by Lessee, its agents, and contractors of Hazardous .Substances on the
Premises. Lessor hereby warrants and represents that it has complied with all
Applicable Laws and regulations concerning the use, release, storage, and disposal of
Hazardous Substances on the Premises, and that said compliance was in effect prior to
the beginning of the Term of this Lease.
(3) Lessor hereby warrants and represents that it has no actual
current or past knowledge of the existence of any hazardous substances or
contaminated soils on or about the Premises.
C. Remedies After Construction Commences:
Should hazardous materials or contaminated soils be discovered by Lessee or
Developer during the construction in which such contamination existed prior to
commencement of construction activities and not as a result of Lessee's or Developer's
actions, the Lessor may either take immediate action to remediate such contamination
at Lessor's own expense so as not to adversely impact or damage Lessee's or
Developer's construction timeframe and costs; or terminate this Lease. If Lessor elects
not to remediate the contamination, Lessee and/or Developer shall have the option to
take immediate action to remediate such contamination, at no cost to Lessor, so as not
to adversely impact or damage Lessee's or Developer's construction timeframe and
construction costs. If no party elects to remediate the Hazard, then the lease shall
terminate. If the Lease is terminated pursuant to this subparagraph ("C"), Lessee and/or
Developer shall pay the costs of the project up to the date of termination. Lessee
and/or Developer shall have no further obligation to complete the Work, the Project or
the obligations of this Lease. All works in progress, structures and improvements
constructed pursuant to the terms of this Lease shall become the property of Lessor.
Lessor, Lesee and Developer shall have no further obligations to each other pursuant to
the provisions of this Lease.
D. Notice: Lessee agrees to immediately notify Lessor when
Hazardous Substances have been released on the Premises, upon becoming aware of
the same.
E. Indemni :
(1) Lessee agrees to indemnify, defend, and hold harmless
Lessor and its Special Districts, elected and appointed officers, agents and employees,
from and against all liability, expense (including defense costs, legal fees, and response
costs imposed by law) and claims for damages of any nature whatsoever which arise
out of the presence or release of Hazardous Substances on the Premises which is
caused by Lessee.
County Const Grnd Lease 12-7-11 21
(2) Lessor agrees to indemnify, defend and hold harmless
Lessee, from and against all liability, expense (including defense costs, legal fees, and
response costs imposed by law) and claims for damages of any nature whatsoever
which arise out of the presence or release of Hazardous Substances on the Premises,
which occurred after the notice to commence and is caused by Lessor.
(3) The indemnity provided by this Section 19 shall survive the
termination of this Lease.
F. Default: Lessee's failure to comply with the provisions of this
Section 18 may, in Lessor's sole discretion, be deemed a default of this Lease and
entitle Lessor to terminate this Lease immediately.
20. ADMINISTRATION: The Chief Executive Officer or his authorized,
designee shall have the authority to administer this Lease on behalf of County.
21 COUNTY'S LOBBYISTS: Lessee and each County lobbyist or County
lobbying firm, as defined in Los Angeles County Code Section 2.160.010, retained by
Lessee, shall fully comply with County's Lobbyist Ordinance, Los Angeles County Code
Chapter 2.160. Failure on the part of Lessee or any County lobbyist or County lobbying
firm retained by Lessee to fully comply with County's Lobbyist Ordinance shall constitute
a material breach of this Lease upon which County may immediately terminate or
suspend this Lease.
22. NOTICES: Notices desired or required to be given by this Lease or by
any law now or hereinafter in effect may be given by enclosing the same in a sealed
envelope with postage prepaid, registered mail, return receipt requested, with the
United States Postal Service. Addresses and persons to be notified may be changed
by providing at least ten days' written notice to the other party except that Lessee shall
at all time maintain a mailing address in California.
A. Notices to Lessee shall be addressed as follows:
Andrew G. Pasmant
City Manager
1444 West Garvey Avenue
West Covina, CA 91790
B. Notices to Lessor shall be addressed as follows:
(1) Chief Executive Office
Real Estate Division
222 South Hill Street, 3rd Floor
Los Angeles, California 90012
Attn: Director of Real Estate
County Const Grnd Lease 12-7-11 22
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23. GENERAL PROVISIONS:
A. Waiver: The waiver by Lessor or Lessee of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term, covenant,
or condition on any subsequent breach of the same or any other term, covenant, or
condition herein contained.
B. Marginal Headings: The Section titles in this Lease are not a part
of this Lease and shall have no effect upon the construction or interpretation of any part
hereof.
C. Time: Time is of the essence for this Lease and each and all of its
provisions in which performance is a factor.
D, Recordation: Either party may record this Lease at any time
without the prior written consent of the other party.
E. Bindinq on Successors:
herein contained shall be binding upon and
in interest of the Lessor and Lessee.
Each and all of the terms and agreements
shall inure to the benefit of the successors
F. Prior Agreements: The Lease, agreements incorporated by
reference and attachments hereto contain all of the agreements of the parties hereto
with respect to any matter covered or mentioned in this Lease, and no prior agreement
or understanding pertaining to any such matter shall be effective for any purpose. No
provision of this Lease may amended or added to except by an agreement in writing
signed by the parties hereto or their respective successors -in -interest. This Lease shall
not be effective or binding on any party until fully executed by both parties hereto.
G. Unavoidable Delay: Any prevention, delay, non-performance or
stoppage due to any of the following causes shall excuse non-performance for a period
equal to any such prevention, delay, non-performance or stoppage. The causes
referred to above are: strikes, lockouts, labor disputes, failure of power, irresistible
superhuman cause, acts of public enemies, riots, insurrections, civil commotion, inability
to obtain labor or materials or reasonable substitutes for either, Governmental
restrictions or regulations or controls, casualties not contemplated by insurance
provisions of this Lease, or other cause beyond the reasonable control of the party
obligated to perform.
H. Separability: Any provision of this Lease which shall prove to be
invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision
hereof and such other provisions shall remain in full force and effect.
I. Cumulative Remedies:- No remedy or, election hereunder shall be
deemed exclusive but shall wherever possible be cumulative with all other remedies at
law or in equity.
County Const Grnd Lease 12-7-11 23
0 .
J. Choice of Law: This Lease shall be governed by the internal laws
of the State of California.
K. Arbitration: In the event of any dispute regarding the terms,
conditions, rights, or obligations of the parties hereto, such dispute may, at the request
of either party, be submitted to arbitration in accordance with the provisions of California
Code of Civil Procedure Section 1280 et. seq., as they now exist or may later be
amended. The Chief Executive Office, Director of Real Estate, or his designee, shall
act on behalf of Lessor in arbitration with the assistance of County Counsel, for so long
as County is the Lessor under this Lease, provided, however, that the settlement of
certain claims my be subject to approval by the County's Board of Supervisors.
L. Interpretation: Unless the context of this Lease clearly requires
otherwise: (i) the plural and singular numbers shall be deemed to include the other; (ii)
the masculine, feminine and neuter genders shall be deemed to include the others; (iii)
"or" is not exclusive; and (iv) "includes" and "including" are not limiting.
County Const Grnd Lease 12-7-11 24
IN WITNESS WHEREOF, the Board of Supervisors of the County of Los Angeles
has caused this Lease to be subscribed by its Chairman and Lessee has caused this
Lease to be subscribed in its behalf by its duly authorized officer, the day, month, and
year first above written:
COUNTY OF LOS ANGELES
By:
ZEV YAROSLAVSKY
Chairman, Board of Supervisors
ATTEST:
SACHI A. HAMAI
Executive Officer -Clerk of
the Board of Supervisors
By:
Deputy
APPROVED AS TO FORM:
ANDREA SHERIDAN ORDIN
County Counsel
By:
Senior Deputy
County Const Grnd Lease 12-7-11 25
CITY OF WEST COVINA
Mayor
ATTEST:
By:
City Clerk
APPROVED AS TO FORM
CITY ATTORNEY
EXHIBIT A
PREMISE MAP
t
County Const Grnd Lease 12-7-11 26
EXHIBIT B
AREA "D" PARKING PLAN
County Const Grnd Lease 12-7-11 27
Attachment No. 4
AMENDMENT NO.3 TO
LEASE AND AGREEMENT NO. 19104
FOR OFF-STREET PARKING FACILITIES
WEST COVINA CIVIC CENTER SITE
THIS AMENDMENT NO. 3 TO LEASE AND AGREEMENT NO. 19104
("Amendment No. 3"), effective as of the date specified in Paragraph 5 hereof, is made and
entered into by and between the City of West Covina (referred to either as the "City" or
"Original Lessor") and the County of Los Angeles (referred to either as the "County" or
"Lessee"), collectively referred to herein as the "Parties."
RECITALS:
WHEREAS, on January 4, 1972, the City and County entered into a certain Lease and
Agreement No. 9104 for Off -Street Parking Facilities, West Covina Civic Center Site
(hereinafter referred to as the "Lease"), the terms of which are incorporated herein by this
reference. In accordance with the Lease, the County leased 596 parking spaces from the City for
use by the County for its, various County facilities located within the West Covina Civic Center
Site ("Site");.
WHEREAS, the Lease provided for an initial term of 25 years, with said term
commencing in 1973 and expiring in the year 1998;
WHEREAS, in 1998, as part of a certain Amendment No. 1 to the Lease, the terms of
which are incorporated herein by this reference, the County exercised the first of its five renewal
options, extending the term of the Lease to 2003. In addition, the County reduced the number of
parking spaces to be leased by 35, leaving a total of 561 parking spaces on the Site leased by the
County from the City;
WHEREAS, in 2003, as part of a certain Amendment No. 2 to the Lease, the terms of
which are incorporated herein by this reference, the County exercised the second of its five
renewal options, extending the term of the Lease to 2008. In addition, the County voluntarily
reduced the number of spaces to be leased by 125, leaving a total of 436 parking spaces on the
Site leased by the County;
WHEREAS, in 2008, the County exercised the third of its five renewal options,
extending the term of the Lease to 2013;
WHEREAS, The Original Lease as amended by Amendment No. 1 and Amendment No.
2 is referred to herein as the "Lease."
HOA.84005.8.1
Amendment No. 3 to Lease & Agreement No. 19104 for Off -Street Parking Facilities
West Covina Civic Center Site
Page 2 of 5
WHEREAS, of the 436 parking spaces leased by the County, 100 spaces are contained
within a parking lot on the Site, depicted as "Area A" Parking Lot on the Site Map attached
hereto as Exhibit "A," with said spaces used by the County as part of its operation of a library
facility ("Library") on the Site;
WHEREAS, the City is in negotiations with a private third party ("Developer") to build a
55,000 square foot office development ("Proposed Development") on land owned by the City,
at the corner of Garvey Avenue and West Covina Parkway, and to construct. a new 218 space
parking lot ("Office Parking Lot") which includes the Area A Parking Lot (Exhibit `B");
WHEREAS, if established, the Proposed Development would eliminate the 100 parking
spaces in the Area A Parking Lot currently leased by the Lessee and used by the Library. The
new number of parking spaces to be leased by the Lessee will be reduced from 436 to 336;
WHEREAS, the City would require Developer to cause the construction of a new 129
space parking lot on County -owned land between the Library and the Court House (referred to
herein as "Area D Parking Lot"). Area D Parking Lot shall be built at the sole cost of the
Developer of the .Proposed Development and at no cost to the City or County. The Area D
Parking Lot shall be for the sole use and benefit of the County Library unless otherwise
designated by the County;
WHEREAS, the County desires to provide authorization and approval to City and
Developer by entering into a ground lease (effective the same day of execution of this
Amendment No. 3) to' make necessary improvements for construction of 129 parking spaces on
County -owned property known as Area D Parking Lot;
WHEREAS, the Parties desire to amend the Lease by this Amendment No. 3 to address
the provision of the Library Parking Spaces, should the Proposed Development be approved by
City.
NOW, THEREFORE, in consideration of the above -recitals, which shall become an
integral part of the Lease, as amended, between the Parties; the Parties hereby agree as follows:
1. MATERIAL PROVISIONS:
The effectiveness of the provisions of this Amendment No. 3 is contingent on the
following conditions precedent.
(a) The City shall enter into a binding written agreement with a Developer for the
construction and completion of the Proposed Development ("Development Agreement").
(b) The Developer of the Proposed Development shall agree in the Development
Agreement to construct at its sole cost, and without any monetary assistance or other
HOA.840058.1
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•
Amendment No. 3 to Lease & Agreement No. 19104 for Off -Street Parking Facilities
West Covina Civic Center Site
Page 3 of 5
consideration from County or City, the Area D Parking Lot substantially in form as shown on the
Site Map attached hereto as Exhibit "B". in accordance with plans and specifications designed
and/or approved by the Lessee. Upon completion, the Area D Parking Lot improvements shall
be owned, operated, and maintained exclusively by the County. The Area D Parking Lot
improvements shall include a parking validation system substantially as described in Exhibit "C"
attached hereto and incorporated herein by reference.
(c) The construction of the Area D Parking Lot shall be completed and available for
parking use by the County of Los Angeles prior to the commencement of any demolition,
grading or any other activity which will directly adversely affect, hamper or inconvenience the
use of the existing. City -owned parking lot for the County Library which is shown as the Area A
Parking on the Site Map.
(d) If construction of the Area D Parking Lot has not commenced within 6 months
from the date of execution of this Agreement by all parties, then this Amendment terminates and
becomes null and void and the original terms of the existing Lease shall survive, unless this
Amendment is extended in a writing signed by the City and the Developer and the County's
Chief Executive Office extending the time to commence construction of the Area D Parking Lot
for a period of additional 6 months in order to obtain County approvals.
2. PROVISION OF LIBRARY PARKING SPACES DURING CONSTRUCTION
The construction of the Area D Parking Lot shall be completed and available for parking
use by the County of Los Angeles prior to the commencement of any demolition, grading or any
other activity on the Area A Parking Lot on the Site Map. Notwithstanding the foregoing, the
Developer shall be able to commence any demolition, grading or other activity that does not
directly adversely' impact, affect, hamper or inconvenience the use of the existing parking lot
(Area A Parking Lot).
3. PROVISION OF LIBRARY PARKING SPACES POST CONSTRUCTION
Paragraph 3 of the Lease shall be amended to read as follows:
"Commencing on the date that the Proposed Development commences construction on
the Area A Parking Lot, the 100 parking spaces in the Area A Parking Lot shall be deleted from
the leased Premises set forth in the Lease. City shall provide Lessee with a written Notice of
Commencement.
Lessee shall continue to pay as monthly rent during the current five-year option period
the reduced amount of Two Hundred Thirty Seven and 50/100 Dollars ($237.50).
Additionally, commencing on the date that the Proposed Development commences
construction on the Area A Parking Lot Lessee shall no longer pay $230 per month in operating
HOA.840058.1
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Amendment No. 3 to Lease & Agreement No. 19104 for Off -Street Parking Facilities
West Covina Civic Center Site
Page 4 of 5
expenses for the deleted Area A Parking Lot. Lessee shall continue to pay operating expenses of
$20.44/space/month for 230 parking spaces in the parking structure located as Area "C" as
described on the Site Map attached hereto as Exhibit "A" ($4,701.20), and $2.30/space/month for
106 parking spaces in the surface parking lot located as Area "B" on the Site Map attached hereto
as Exhibit "A" ($243.80); totaling Four Thousand Nine Hundred Forty Five and No/100 Dollars
($4,945) monthly during the current five-year option period as provided in the Lease."
4. - 'EFFECT OF AMENDMENT
Except as modified herein, the terms and provisions of the Lease and related amendments
thereto previously entered into by the Parties shall remain in full force and effect without change,
including but not limited to, the City's right as Lessor to be compensated by the County in
accordance with the. Lease and Amendments and the County's right as Lessee to exercise its
remaining renewal options.
5. EFFECTIVE DATE
Unless otherwise specified herein, this Amendment No. 3 shall become effective as of the
date set forth below on which the last of the Parties, whether City or County, executes this
Amendment No. 3.
IN WITNESS WHEREOF, the Parties hereto cause this Amendment No. 3 to be
executed by its duly authorized officers.
CITY OF WEST COVINA
("City/Lessor")
Mayor,
Date:
HOA.840058.1
COUNTY OF LOS ANGELES
("County/Lessee")
ZEV YAROSLAVSKY
Chairman, Board of Supervisors
Date:
Amendment No. 3 to Lease & Agreement No. 19104 for Off -Street Parking Facilities
West Covina Civic Center Site
Page 5 of 5
ATTEST:
City Clerk
HOA.840058.1
ATTEST:
Executive Officer -Clerk of the Board
Of Supervisors
Approved As To Form:
ANDREA SHERIDAN ORDIN
COUNTY COUNSEL
Amy M. Caves
Senior Deputy County Counsel
Exhibit A
(Original Exhibit of Lease & Agreement No. 19104)
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HOA.840058.1
Exhibit B
HOA.840058.1
Exhibit C
Area D Parking Lot validation system, as listed below or similar per approval by the
County.
EPS Engineered Parking Systems or similar including:
Entrance
(1) 301-10, Barrier gate with 10 ft. arm,
(1) TD-6030P, Ticket machine,
(2) 3416D, Loop detector,
(2)- PFL-48, Preformed loops,
Exit
(1) 301-10, Barrier gate with 10 ft. arm,
(1) 3416D, Loop detector,
(1) PFL-48, Preformed loops,
(1) XV 2020 , Exit pass verifier with pedestal,
Exit Pass Printer
MV-2020, Exit pass printer
Staff Access Control
Sielox Pinnacle Control System
HOA.840058.1