HomeMy WebLinkAboutE-07 Staff Report - BoA Parking Easement Agreement45635.01848\31747611.3
CONSENT ITEM
E-7
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
VIA: SERGIO GONZALEZ, CITY MANAGER
FROM: CARINA CAMPOS, ECONOMIC DEVELOPMENT SPECIALIST
MANUEL MUÑOZ, SENIOR PLANNER
DATE: JANUARY 22, 2018
SUBJECT: APPROVING AN AMENDED AND RESTATED PARKING EASEMENT
AGREEMENT WITH BANK OF AMERICA, NATIONAL ASSOCIATION FOR THE
CITY PROPERTY LOCATED AT THE NORTHWEST CORNER OF FOOTHILL
BOULEVARD AND ALAMEDA AVENUE AND AUTHORIZING THE CITY
MANAGER TO EXECUTE THE AGREEMENT.
BACKGROUND:
On November 20, 2007 the Redevelopment Agency of the City of Azusa (“City”) entered into a Parking
Easement Agreement (“Parking Agreement”) with Bank of America, National Association (“Bank”).
The Parking Agreement granted the Bank certain easements on City property for the purpose of
vehicular ingress, egress and vehicular parking during the anticipated construction of the then proposed
project adjacent to the Bank site. Due to the economic down turn the proposed Reg Azusa Block 36
project did not proceed. However, the improvements on the site adjacent to the Bank property had been
removed and the Bank still needed access to the City property for parking purposes. The City and Bank
have used the parking lot pursuant to the terms of the Parking Agreement since 2007. The proposed
actions approve an Amended and Restated Parking Easement Agreement (“Amended Agreement”) with
Bank of America, National Association to reflect the design of the new proposed project on Block 36
and the temporary ongoing need for Bank parking on the City property.
RECOMMENDATION:
Staff recommends the City Council take the following actions:
1)Approve the Amended and Restated Parking Easement Agreement with Bank of America,
National Association in substantially final form, subject to minor modifications as approved by
the City Manager and the City Attorney;
2)Authorize the City Manager to execute the Amended Agreement, in a form acceptable to City
Attorney, on behalf of the City; and
3)Direct Staff to file a Notice of Exemption pursuant to the California Environmental Quality Act.
APPROVED
CITY COUNCIL
1/22/2019
Approve Amended and Restated Parking Easement Agreement with Bank of America
January 22, 2019
Page 2
ANALYSIS:
The City is currently under a Disposition and Development Agreement with Azusa Block 36, LLC
(“Developer”) who is proposing a mixed use development project called The Orchard, which consists of
163 residential units and 31,716 square feet of commercial retail space. In preparation for the
construction, Staff recommends the City enter into the Amended Agreement (Attachment 1) granting the
Bank the right to utilize the City property for parking and addressing final design and other issues for the
development of the proposed project to accommodate the ongoing needs of the Bank. The proposed
actions approve the Amended Agreement and authorize the City Manager to execute on behalf of the
City.
Once the parking structure for the proposed project is completed, the Bank will have access to onsite
parking and will no longer require the easement and parking rights on the City property. The Parking
Agreement will terminate at that time. In the event that the City does not convey the City Property to the
Developer, the Amended Agreement will be perpetual until the terms are fully satisfied.
Approval of the amendment to the Parking Agreement is exempt from environmental review under the
California Environmental Quality Act (“CEQA”) pursuant to section 15301 of the State CEQA
Guidelines (Cal. Code Regs., tit. 14, § 15000). Section 15301 exempts the leasing of existing public
facilities where these is no expansion of use. Staff will file a Notice of Exemption pursuant to CEQA.
FISCAL IMPACT:
There is no fiscal impact associated with the proposed recommendations.
Prepared by: Reviewed by:
Carina Campos Manuel Muñoz
Economic Development Specialist Senior Planner
Reviewed and Approved: Reviewed and Approved:
Sergio Gonzalez
City Manager
Attachment:
1) Amended and Restated Parking Easement Agreement – Bank of America
THIS SPACE ABOVE FOR RECORDERS USE
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:Prepared by:
Bank of America, National Association F. Eugene Allison, Esq.
214 N. Tryon Street Katten Muchin Rosenman LLP
Mail Code: NC1-027-18-05 550 S. Tryon Street, Suite 2900
Charlotte, NC 28255 Charlotte, NC 28202
Attention: Thomas BissettBissette
AMENDED AND RESTATED
PARKING EASEMENT AGREEMENT
THIS PARKING EASEMENT AGREEMENT (this “Agreement”) is made and entered
into as of _____,2018,2019, by and between THE CITY OF AZUSA (the “City”), and BANK
OF AMERICA, NATIONAL ASSOCIATION, a national banking association, successor by
merger to Bank of America National Trust and Savings Association (the “Bank”).
RECITALS:
In November 2007, The Redevelopment Agency of the City of Azusa (“Agency”)A.
acquired from the Bank the real property (the “City Property”) located in the City of Azusa, Los
Angeles County, California, more particularly described on Exhibit A attached hereto and made
a part hereof for all purposes.
The Bank is the owner of the real property (the “Bank Property”) located in theB.
City of Azusa, Los Angeles County, California contiguous to the City Property, more particularly
described on Exhibit B attached hereto and made a part hereof for all purposes.
The City Property is currently an asphalt surface parking lot.C.
The Agency had contracted to resell the City Property to Reg Azusa, LLC, aD.
Delaware limited liability company, pursuant to the terms and conditions of the Disposition and
Development Agreement between the Agency and Reg Azusa, LLC dated January 16, 2007, as
amended (as so amended, the “DDA”).
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Revised E-7 Attachment Parking Easement Agreement
By that certain Parking Easement Agreement by and between the Agency and theE.
Bank, dated November 20, 2007 and recorded December 13, 2007, as Instrument No.
20072738350 in the Office of the County Recorder the County of Los Angeles, State of
California (“Original Easement”), (i) the Agency granted to the Bank certain easements and other
rights on, over and across the City Property for purposes including pedestrian and vehicular
ingress and egress and the parking of automobiles or other vehicles in the parking spaces
contained in the City Property, and (ii) Reg Azusa, LLC was obligated to perform certain
construction on the City Property, all as set forth in the Original Easement.
By that certain Parking Lease by and between the Agency, as Landlord, and theF.
Bank, as Tenant, dated November 20, 2007 (“Parking Lease”), a copy of which is attached hereto
as Exhibit E and incorporated herein by reference, the Agency leased to the Bank the Parking Lot
(a surface parking lot located at the northwest corner of the intersection of Alameda Avenue and
Foothill Boulevard, directly across Foothill Boulevard from the Bank Property, all as more
particularly defined and described in the Parking Lease) for use by the Bank during the
construction of the Project.
Reg Azusa, LLC never performed its obligations and the City Property has beenG.
used by the Parties as a parking lot subject to the Original Easement since 2007.
The Agency was dissolved pursuant to AB 1X 26 in 2012 and the City PropertyH.
and the Parking Lot were conveyed from the Agency to the City pursuant to the laws governing
the dissolution of the Agency.
The City has now contracted to sell the City Property to Azusa Block 36, LLC, aI.
California limited liability company (the “Developer”) pursuant to the terms and conditions of
the Disposition and Development Agreement by and between the City and Developer, dated
April 20, 2017 (the “DDA”). The escrow opened to convey the City Property to the Developer is
referred to herein as the “Escrow.”
Pursuant to the DDA, the Developer agrees to construct a first-class mixed useJ.
development project (the “Project”) consisting of approximately 163 residential units, 31,716
square feet of commercial retail space which includes a 8,350 square foot multiscreen art house
theater, and 309 parking spaces (“Parking Structure”).
The City succeeded to the rights and obligations of the Agency as Landlord underK.
the Parking Lease and the Bank has continued its rights and obligations as Tenant thereunder.
In light of the Project and the sale of the land to the Developer, the Parties nowL.
desire to enter into this Amended and Restated Parking Easement Agreement.
NOW, THEREFORE,for and in consideration of Ten Dollars ($10.00) and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the City and the Bank do hereby agree that the Original Easement is hereby amended and restated
in its entirety as follows:
Parking Easement. The City hereby grants, sells and conveys to the Bank and1.
any and all future owners of the Bank Property for the benefit of the Bank Property, a perpetual
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(until terminated in accordance with the terms hereof), irrevocable, exclusive easement and right
of way running with the land on, over and across the City Property (the “Parking Easement”) for
the parking of not less than thirty-eight (38) automobiles and other vehicles, pedestrian and
vehicular ingress and egress in connection therewith, and other incidental uses, for the benefit of
the Bank Property and the Bank Parties (as defined below). The Parking Easement is appurtenant
to the Bank Property, as the dominant tenement, and shall burden the City Property, as the
servient tenement.
Term.2.
The term (“Term”) of this Agreement shall commence on the recordation(a)
hereof and shall terminate on the date that all of the following conditions have been fully
satisfied:
The City shall have notified the Bank that all of the conditions to(i)
the City’s obligation to convey the City Property to the Developer under the DDA have been
fully satisfied; and
The Developer shall have executed and delivered to the Bank a(ii)
Project Completion Guaranty in favor of the Bank, in the same form as the Project Completion
Guaranty Developer is executing in favor of its construction lender; and
The Developer shall have executed and delivered to the Bank an(iii)
agreement in a form reasonably satisfactory to the Bank, and guaranteed by Developer, whereby
the Developer shall agree to pay the Bank liquidated damages in the amount of One Thousand
Dollars ($1,000.00) per day for each day following the date that is nine hundred (900) days
(“Construction Schedule”) after the Developer’s commencement of construction of the Project
that the Parking Structure is not completed, fully operational and available for use by the Bank
and the Bank Parties. The Construction Schedule may be extended for an Unavoidable Delay as
defined in the DDA (“Construction Schedule Extension”); and
The Developer shall have executed and delivered into Escrow in(iv)
recordable form a Declaration of Restrictions and Easements Agreement in the form of Exhibit
C attached hereto (“Declaration”), a Facade Agreement in the form of Exhibit D attached hereto,
and a License Agreement in the form of Exhibit E attached hereto, with irrevocable instructions
to record each of said agreements immediately following conveyance of the City Property to the
Developer and prior to the recordation of any documents securing the Developer’s construction
financing; and
At least sixty (60) days shall have elapsed since the City provided(v)
the Bank with written notice of the commencement of construction on the City Property.
Upon full satisfaction of each of the conditions specified in Paragraph 2(a)(b)
above, the Bank agrees to execute and deliver to the Developer a quitclaim deed in recordable
form acknowledging that its rights to the Parking Easement (as defined in the Declaration)
supersede its rights to the Parking Easement (as defined in Section 1 of this Agreement).
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If the City shall not convey the City Property to Developer, this Agreement(c)
shall not terminate unless any other transferee shall satisfy the conditions set forth in Paragraph
2(a) above or equivalent conditions to the reasonable satisfaction of the Bank, including, without
limitation, providing a project completion guaranty and guaranty of liquidated damages as set
forth above by an entity having a net worth of not less than Forty Million Dollars ($40,000,000).
Maintenance Obligations. During the Term of this Agreement, the Bank shall3.
maintain the City Property in substantially the same condition as exists on the date of this
Agreement, subject to reasonable wear and tear.
Cost of Parking Easement. Except as provided in Paragraph 3 above, the City4.
shall be responsible for the payment of all costs associated with the City Property.
Signage and Improvements.5.
Pursuant to the Original Easement, the Bank, at its sole cost and expense,(a)
installed signage designating the City Property for use by the Bank and the Bank Parties. All
signage may remain and any new signage shall be subject to all applicable laws, rules,
regulations and permits. All signage installed by Bank during the term of the Original Easement
or during the term of this Agreement shall be removed by the Bank, at the Bank’s sole cost and
expense, upon the termination or expiration of this Agreement.
The Bank may, with the consent of the City, make modifications to the(b)
City Property, which consent shall not be unreasonably withheld or delayed. Said modifications
shall be made at the Bank’s sole cost and expense upon receipt of written consent from the City.
Any modifications made to the City Property without the written consent of the City shall, upon
notification of the Bank by the City, be removed immediately at the Bank’s sole cost and
expense.
Prohibited Liens. The Bank agrees to keep the City Property free and clear of6.
any liens resulting from the Bank’s use of the City Property.
Compliance with Law. Provided that the City takes no action or modifies the7.
City Property so as to directly or indirectly cause the City Property to not be in compliance with
applicable laws, the Bank shall be responsible, at its sole cost and expense, for causing the City
Property to comply with all applicable laws during the Term, including without limitation, the
Americans with Disabilities Act (“ADA”), and shall take such actions as may be required from
time to time to keep the City Property in compliance with all applicable laws.
The City’s Limitation of Liability. The City makes no representations or8.
warranties as to the security of vehicles parked in the City Property, and is under no obligation to
provide security for persons or property on the City Property. Except as otherwise provided by
law, the City is not responsible to the Bank or the general public for any fire, theft or damage to
vehicles parked at the City Property. The City maintains its right to assert any and all applicable
defenses, counterclaims, and immunities available to it. The Bank, in its sole discretion, may
elect to engage a parking attendant at the City Property, at the Bank’s sole cost and expense.
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Assumption of Risk. To the maximum extent allowed by law, except for the9.
City’s willful or actively negligent acts or as a result of a breach of the City’s duties pursuant to
this Agreement, the Bank assumes any and all risk of loss, damage or injury of any kind to any
person or property which is on or about the City Property. Subject to the foregoing exceptions,
the Bank’s assumption of risk shall include, without limitation, loss or damage caused by defects
in any structure or improvement on the City Property, accident, fire or other casualty on the City
Property. To the maximum extent allowed by law, except for the City’s willful or actively
negligent acts or as a result of a breach of the City’s duties pursuant to this Agreement, the Bank
hereby waives all claims and demands against the City and the City’s officials, officers,
employees, volunteers and agents for injury to persons, damage to property or any other interest
of the Bank sustained by the Bank or any person claiming to be the Bank resulting from any
occurrence on or about the City Property.
City Property. Except as otherwise expressly provided herein, the Bank10.
acknowledges that it accepts the rights granted by this Agreement to use the parking spaces on
the City Property in their AS-IS, WHERE IS condition, and neither the City nor any agent or
designee of the City has made any representation or warranty with respect to such parking spaces
or the condition thereof or any improvements located on the City Property. The Bank hereby
agrees and warrants that it is very familiar with the condition of the City Property and that it has
investigated and inspected the condition of the City Property and the suitability of same for the
Bank’s purposes, and the Bank does hereby waive and disclaim any objection to, cause of action
based upon, or claim that its obligations hereunder should be reduced or limited because of the
condition of the City Property. The taking of possession of the City Property shall conclusively
establish that the City Property were at such time in satisfactory condition.
Insurance. The Bank shall have in effect a commercial general liability insurance11.
policy, including, but not limited to, owned and non-owned vehicle liability, personal injury,
blanket contractual, and broad form property damage liability coverage, covering the liability of
the Bank with respect to or arising out of the Bank’s use of the City Property under this
Agreement, with limits of not less than One Million Dollars ($1,000,000) per occurrence for
bodily injury, personal injury and property damage liability. Any policy obtained by the Bank
shall be in a form and shall name such additional insureds as may be reasonably required by the
City. Any policy issued to satisfy the insurance requirements herein shall be subject to the
approval of the City, which approval shall not be unreasonably withheld or delayed. The Bank
represents and warrants that if the Bank fails to maintain such insurance policy, the City Property
shall be deemed included in and covered by the Bank’s self-insurance program at and to the same
level of coverage required by this Agreement, and such self-insurance shall satisfy the
requirements of this Paragraph.
No Public Dedication. The Parking Easement is not a public easement, but is an12.
easement for the use and benefit of the Bank, and its employees, customers, agents, contractors,
licensees, tenants, and invitees, and also for the use and benefit of the owners and holders of all
liens, present and future, whether the same be created by deed, deed of trust, security agreement,
assignment of rental, assignment of leases or other voluntary contractual document, covering the
whole or any portion of the Bank Property (collectively, the “Bank Parties”). The Parking
Easement is not intended to, nor shall it be construed as, creating any dedication to, or any right
in or for the benefit of, the general public.
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Amendment. This Agreement may be amended, rescinded, or terminated only by13.
an instrument or instruments in writing purporting to amend, rescind, or terminate this
Agreement, executed and acknowledged in the manner suitable for recording by the record
owners of the Bank Property and the City Property and all the then lienholders owning and
holding a lien upon or a security interest in said benefited parcel(s), which instrument or
instruments of amendment, rescission, or termination, to be fully effective, must be filed for
record in the Office of the Recorder of the County of Los Angeles, California.
Parking Lease. The City and the Bank hereby confirm that the Parking Lease, a14.
copy of which is attached hereto as Exhibit F, remains in full force and effect, with the City
having succeeded to the rights and obligations of the Agency as Landlord thereunder, and with
the Bank continuing with its rights and obligations as Tenant thereunder, except that in light of
the matters set forth in the Recitals above, the City and the Bank agree to the following updates
to the Parking Lease:
All references therein to “DDA” shall mean the DDA as defined in Recital(a)
I of this Agreement;
All references to “Developer” therein shall mean the Developer as defined(b)
in Recital I of this Agreement;
All notices to Tenant thereunder (and copies thereof), shall be given to(c)
Tenant and copy recipients at the addresses set forth in Section 15 below; and
All notices to Landlord thereunder (and copies thereof) shall be given to(d)
Landlord and copy recipients at the addresses set forth in Section 15 below.
Miscellaneous.15.
Binding on Successors and Assigns. The grants and obligations, benefits(a)
and burdens of the City and the Bank shall be covenants running with the land and shall apply to,
be binding upon and inure to the benefit of all present and future owners and lien creditors of the
City Property and the Bank Property, as applicable, and their respective successors and assigns.
The Parking Easement is an easement appurtenant to the Bank Property.
No Third Party Beneficiary. No obligation of a party under this(b)
Agreement is enforceable by, or is for the benefit of, any creditor of any or all parties hereto or
any other third parties. The provisions of this Agreement are for the exclusive benefit of the
parties hereto and their respective successors and assigns and not for the benefit of any third
person, nor shall this Agreement be deemed to have conferred any rights, express or implied,
upon any third person. It is expressly understood and agreed that no modification or amendment,
in whole or in part, of this Agreement shall require consent or approval on the part of any third
party.
No Easement by Implication; Prevention of Prescriptive Rights. Neither(c)
the execution of this Agreement, nor the granting of the Parking Easement described herein, shall
be deemed to grant any other easement or to establish any other easement by implication or
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prescription, and the parties to this Agreement understand and agree that the only easements
made and granted are the easements which are expressly made and granted by this Agreement.
Expenses of Enforcement. Should any suit be brought by either party(d)
against the other for the enforcement of any rights of such party against the other pursuant to the
provisions of this Agreement, or by reason of any alleged breach of any of the provisions of this
Agreement or arising from this Agreement, then and in such event the successful party in such
action shall be entitled to receive from the unsuccessful party, all costs incurred in connection
with such suit, including reasonable attorneys’ fees incurred by the successful party.
Waiver and Default. The waiver by one party of the performance of any(e)
provision of this Agreement shall not invalidate this Agreement, nor shall it be considered a
waiver by it of any other provision under this Agreement or of any subsequent breach by the
other party of the same provision.
Notices. Any notices required or permitted to be given hereunder shall be(f)
given in writing and shall be delivered (i) in person, (ii) by certified mail, postage prepaid, return
receipt requested, or (iii) by a commercial overnight courier that guarantees next day delivery and
provides a receipt, and such notices shall be addressed as follows:
To the City:City of Azusa
213 East Foothill Boulevard
Azusa, CA 91702
Attn: City Manager
Phone (626) 812-5238
With copy to:Best & Krieger, LLP
18101 Von Karman Avenue
10th Floor
Irvine, CA 92612
Attn: Elizabeth Wagner Hull, Esq.
Phone: (949) 263-2608
To the Bank:Bank of America, National Association
Mail Code: NC2-150-03-06
13850 Ballantyne Corporate Place
Charlotte, North Carolina 28277
Attn: CA7-115
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With copies to:Bank of America, National Association
2505 W. Chandler Blvd.
AZ1-805-01-30
Chandler, AZ 85224
Attn: Leslie O'Brien, Vice President – Sr. Business
Control Specialist
Bank of America, National Association
214 N. Tryon Street
Mail Code: NC1-027-18-05
Charlotte, NC 28255
Attention: Thomas BissettBissette
Katten Muchin Rosenman LLP
550 S. Tryon Street, Suite 2900
Charlotte, NC 28202
Attention: Jennifer A. Dunbar
or to such other address as either party may from time to time specify in writing to the other
party. Any notice shall be effective only upon delivery.
Construction. The rule of strict construction does not apply to this(g)
Agreement. The language of this Agreement shall be construed simply, according to its fair
meaning, so that the intention of the parties is carried out.
Enforcement. Each party hereunder shall have the right to enforce by(h)
proceedings at law or in equity, all restrictions and covenants now or hereafter imposed by the
provisions of this Agreement or any amendment thereto, including the right to prevent the
violation of any such restrictions and covenants and the right to recover damages and other
amounts due in connection with such violation as provided for in this Agreement.
Cumulative Remedies. All rights, options and remedies of each party(i)
under this Agreement are cumulative and not one of them shall be exclusive of any other. Each
party hereunder shall have the right to pursue any one or all of such rights, options and remedies
or any other remedy or relief which may be provided by law, whether or not stated in this
Agreement.
Severability. If any term, covenant, condition or provision of this(j)
Agreement, or the application thereof to any person or circumstance, shall to any extent be held
by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
terms, covenants, conditions or provisions of this Agreement, or the application thereof to any
other person or circumstance, shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
Headings. The headings in this Agreement are inserted for reference only(k)
and in no way define, describe or limit the scope or intent of this Agreement or of any of the
provisions hereof.
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Governing Law. This Agreement shall be subject to and governed by the(l)
laws of the State of California.
Counterparts. This Agreement may be executed in one or more(m)
counterparts, and bear the signature of each party on a separate counterpart, each of which when
so executed and delivered shall be deemed an original but all of which taken together shall
constitute but one and the same instrument.
Entire Agreement. This Agreement and its exhibits constitute the entire(n)
agreement between the parties hereto pertaining to the subject matter hereof, and are the final,
complete and exclusive expression of the terms and conditions thereof. Prior agreements,
representations, negotiations, and understandings of the parties hereto, oral or written, express or
implied, are hereby superseded and merged herein.
[Remainder of Page Intentionally Blank]
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EXECUTED as of the day and year first above written.
CITY:
THE CITY OF AZUSA
By:
Print Name: Sergio Gonzalez
Title: City Manager
BANK:
BANK OF AMERICA, NATIONAL
ASSOCIATION,
a national banking association
By:
Print Name: Leslie O’Brien
Title: Vice President – Sr. Business Control Specialist
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STATE OF ________________)
)ss.
COUNTY OF ______________)
On ________________, 20___ before me, _____________________________, a Notary Public,
personally appeared Sergio Gonzales, City Manager of the City of Azusa , 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.
WITNESS my hand and official seal.
______________________________
Signature of Notary Public
[Notary seal]
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135982281v34_386430-01729
STATE OF ________________)
)ss.
COUNTY OF ______________)
On ________________, 20___ before me, _____________________________, a Notary Public,
personally appeared Leslie O’Brien, Vice President – Sr. Business Control Specialist, Bank of
America, National Association, a national banking association , 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.
WITNESS my hand and official seal.
______________________________
Signature of Notary Public
[Notary seal]
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Exhibit A
to Amended and Restated Parking Easement Agreement
City Property
[See Attached Pages]
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EXHIBIT A
LEGAL DESCRIPTION
CITY PROPERTY
CITY OF AZUSA
COUNTY OF LOS ANGELES
APN PORTION OF 8611-003-041
LOTS 5, 46, 47, 48, 49, 50 AND THAT PORTION OF LOT 4 OF BLOCK 36 OF AZUSA
TRACT, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 93 TO 96 INCLUSIVE OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF LOT 1 OF SAID BLOCK 36 OF AZUSA
TRACT; THENCE SOUTHERLY A LONG THE EASTERLY LINE OF SAID LOT 1, SOUTH
00°01’18” WEST 149.88 FEET (150.00 FEET RECORD) TO THE SOUTHEAST CORNER OF
SAID LOT 1, SAID CORNER BEING THE NORTHEAST CORNER OF SAID LOT 50, SAID
CORNER BEING THE TRUE POINT OF BEGINNING; THENCE SOUTHERLY A LONG
THE EASTERLY LINE OF SAID LOTS 50, 49, 48, 47 AND 46, SOUTH 00°01’18” WEST
125.11 FEET (125.00 FEET RECORD) TO THE SOUTHEAST CORNER OF SAID LOT 46;
THENCE WESTERLY A LONG THE SOUTHERLY LINE OF SAID LOT 46, NORTH
89°58’20” WEST 140.16 FEET (140.00 FEET RECORD) TO THE SOUTHWEST CORNER
OF SAID LOT 46; THENCE NORTHERLY A LONG THE WESTERLY LINE OF SAID LOTS
46, 47, 48, 49 AND 50, NORTH 00°00’44” EAST 125.14 FEET (125.00 FEET RECORD) TO
THE NORTHWEST CORNER OF SAID LOT 50; THENCE EASTERLY A LONG THE
NORTHERLY LINE OF LOT 50, SAID LINE BEING THE SOUTHERLY LINE OF LOTS 7
AND 6 OF SAID BLOCK 36 OF AZUSA TRACT, SOUTH 89°57’39” EAST 40.05 FEET
(40.00 FEET RECORD) TO THE SOUTHWEST CORNER OF SAID LOT 5; THENCE
NORTHERLY ALONG THE WESTERLY LINE OF SAID LOT 5, NORTH 00’01’05” EAST
149.88 FEET (150.00 FEET RECORD) TO THE NORTHWEST CORNER OF SAID LOT 5;
THENCE EASTERLY A LONG THE NORTHERLY LINE OF SAID LOTS 5 AND 4, SOUTH
89°57’39” EAST 23.12 FEET MORE OR LESS TO A POINT 77.02 FEET WESTERLY FROM
SAID NORTHEAST CORNER OF SAID LOT 1; THENCE LEAVING SAID NORTHERLY
LINE, SOUTH 00°01’18” WEST 27.32 FEET; THENCE SOUTH 89°57’39” EAST 16.96 FEET
TO A POINT ON THE EASTERLY LINE OF SAID LOT 4; THENCE SOUTHERLY ALONG
SAID EASTERLY LINE SOUTH 00°01’18” WEST 122.56 FEET TO THE SOUTHEAST
CORNER OF SAID LOT 4, SAID CORNER BEING ON THE NORTHERLY LINE OF SAID
LOT 50; THENCE EASTERLY A LONG SAID NORTHERLY LINE SOUTH 89°57’39” EAST
60.06 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING: 23,082.11 SQUARE FEET 0.530 ACRES MORE OR LESS
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THIS REAL PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY
DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYOR’S
ACT.
_____________________________________
DOUGLAS R. MELCHIOR, P.L.S. #4611
LICENSE EXPIRES 9-30-2008
DATE: DECEMBER 7, 2007
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Exhibit B
to Amended and Restated Parking Easement Agreement
Bank Property
[See Attached Pages]
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EXHIBIT B
LEGAL DESCRIPTION
BANK PROPERTY
CITY OF AZUSA
COUNTY OF LOS ANGELES
APN PORTION OF 8611-003-041
LOTS 1, 2, 3 AND THAT PORTION OF LOT 4 OF BLOCK 36 OF AZUSA TRACT, IN THE
CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 15 PAGE 93 TO 96 INCLUSIVE OF MISCELLANEOUS RECORDS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 1, SAID CORNER BEING
THE TRUE POINT OF BEGINNING; THENCE SOUTHERLY A LONG THE EASTERLY
LINE OF SAID LOT 1, SOUTH 0°01’18” WEST 149.88 FEET (150.00 FEET RECORD) TO
THE SOUTHEAST CORNER OF SAID LOT 1; THENCE LEAVING SAID EASTERLY LINE
ALONG THE SOUTHERLY LINES OF SAID LOTS 1, 2 AND 3, NORTH 89°57’39” WEST
60.06 FEET (60.00 RECORD) TO THE SOUTHWEST CORNER OF SAID LOT 3; THENCE
NORTHERLY A LONG THE WESTERLY LINE OF SAID LOT 3, NORTH 0°01’18” EAST
122.56 FEET; THENCE LEAVING SAID WESTERLY LINE NORTH 89°57’39” WEST 16.96
FEET; THENCE NORTH 0°01’18” EAST 27.32 FEET TO THE NORTHERLY LINE OF SAID
LOT 4; THENCE EASTERLY A LONG SAID NORTHERLY LINE OF SAID LOT 4, AND
ALONG THE NORTHERLY LINE OF SAID LOTS 3, 2 AND 1, SOUTH 89°57’39” EAST
77.02 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING: 9465.14 SQ. FT.0.217 ACRES MORE OR LESS
THIS REAL PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY
DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYOR’S
ACT.
___________________________________________
DOUGLAS R. MELCHIOR, P.L.S. #4611
LICENSE EXPIRES 9-30-2008
DATE: DECEMBER 7, 2007
JN 3044 PAGE 1 OF 1
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Exhibit C
to Amended and Restated Parking Easement Agreement
Declaration of Restrictions and Easements Agreement
[See Following Pages]
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THIS SPACE FOR RECORDER’S USE
Recording Requested By and
When Recorded Return To:Prepared by:
Bank of America, National Association F. Eugene Allison, Esq.
214 N. Tryon Street Katten Muchin Rosenman LLP
Mail Code: NC1-027-18-05 550 S. Tryon Street, Suite 2900
Charlotte, NC 28255 Charlotte, NC 28202
Attention: Thomas BissettBissette
DECLARATION OF RESTRICTIONS AND EASEMENTS AGREEMENT
THIS DECLARATION OF RESTRICTIONS AND EASEMENTS AGREEMENT
(“Declaration”) is made and entered into as of the ________________ day of ___________,
2018, by and between BANK OF AMERICA, NATIONAL ASSOCIATION, a national banking
association, successor by merger to Bank of America National Trust and Savings Association
(“Bank”), and AZUSA BLOCK 36, LLC, a California limited liability company (“Developer”).
RECITALS:
Bank previously owned that certain real property situated in City of Azusa,A.
County of Los Angeles, as more particularly described in Exhibit A attached hereto and
incorporated herein by this reference (the “Original Parcel”).
Pursuant to a Purchase and Sale Agreement by and between Bank, as seller, andB.
The Redevelopment Agency of the City of Azusa (the “Agency”), as buyer, the Agency
purchased a portion of the Original Parcel, as more particularly described in Exhibit B attached
hereto and incorporated herein by this reference (the “Adjacent Tract”).
The Agency was dissolved pursuant to AB 1X 26 in 2012 and the Adjacent TractC.
was conveyed from the Agency to the City of Azusa (“City”) pursuant to the laws governing the
dissolution of the Agency.
Pursuant to that certain Disposition and Development Agreement (“DDA”), datedD.
April 20, 2017 by and between the City and Developer, the Developer purchased the Adjacent
Tract.
The portion of the Original Parcel still owned by Bank after the sale and transferE.
of the Adjacent Tract to the City is more particularly described in Exhibit C attached hereto, and
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shall be hereinafter referred to as the “Bank Tract”. The Bank Tract and Adjacent Tract shall be,
collectively, referred to herein as the “Properties” or the “Tracts”; and, individually, as a “Tract”.
Simultaneously with the sale and transfer of the Adjacent Tract to Developer, thisF.
Declaration was executed and recorded by Bank and Developer to document and create certain
easements, covenants, agreements and restrictions affecting the Tracts after redevelopment of the
Adjacent Tract.
Developer intends to develop and operate the Adjacent Tract as a mixed useG.
residential, parking and retail shopping complex, and in order to effectuate the cooperative use of
the Bank Tract and the Adjacent Tract, the Parties desire to enter into certain covenants and
agreements, to impose certain restrictions and to grant Bank certain easements, in, to, over, and
across the Adjacent Tract.
AGREEMENT:
NOW, THEREFORE, in consideration of the promises, covenants and agreements
hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Bank and Adjacent Tract Owner hereby declare, agree,
covenant and consent that the Adjacent Tract shall be held, sold and conveyed subject to the
following easements, restrictions,covenants and conditions, which are intended to “run with the
land” and be binding on and inure to the benefit of all Parties having any right, title or interest in
the Tracts or any part thereof, their heirs, successors and assigns:
ARTICLE I
DEFINITIONS
“Adjacent Tract Owner” shall mean the Party owning the fee interest in the Adjacent
Tract or any portion thereof. Initially, the Adjacent Tract Owner shall mean Azusa Block 36,
LLC, a California limited liability company.
“Bank Tract Owner” shall mean the Party owning the fee interest in the Bank Tract or any
portion thereof. Initially, Bank Tract Owner shall mean Bank of America, National Association, a
national banking association.
“Building” shall mean any permanently enclosed structure placed, constructed or located
on a Tract, which for the purpose of this Declaration shall include any building appurtenances
such as stairs leading to or from a door, transformers, trash containers or compactors, canopies,
supports, loading docks, truck ramps, and other outward extensions of such structure.
“DDA” means that certain 2017 Disposition and Development Agreement by and
between the City and Developer.
“Governmental Authorities” shall mean any federal, state, county, city or local
governmental or quasi-governmental authority, entity or body (or any departmental agency
thereof) exercising jurisdiction over a particular subject matter.
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“Governmental Requirements” shall mean all applicable laws, statutes, ordinances, codes,
rules, regulations, orders, and applicable judicial decisions or decrees, as presently existing and
hereafter amended, of any Governmental Authorities.
“Interest” has the meaning set forth in Section 6.2.
“Occupant” shall mean any Person from time to time entitled to the use and occupancy of
any portion of a Building under an ownership right or under any lease, sublease, license,
concession, or other similar agreement.
“Parking Structure” shall mean and refer to that certain parking facility to be constructed
by Adjacent Tract Owner on the Adjacent Tract pursuant to the Site Plan.
“Party” shall mean and refer to each owner of fee simple title to any Tract (but excluding
those having such interest merely as security for the performance of any obligation). Each Party
shall be liable for the performance of all covenants, obligations and undertakings applicable to
the Tract or portion thereof owned by it that accrue during the period of such ownership. If the
fee ownership for any Tract vests in more than one entity and/or individual, such owners shall be
jointly considered a single “Party” hereunder, but such owners shall appoint a single owner as
such Party’s agent (the “Agent”) and only the Agent duly named as representing such Party shall
have the right to exercise the rights of the Party in respect to such Tract, and all obligations of
such Party may be enforced by action or other appropriate proceedings against such Agent,
without the necessity of joining any other entity and/or individual having any interest in such
Tract.
“Permittee” shall mean all Occupants and the officers, directors, employees, agents,
contractors, customers, vendors, suppliers, visitors, invitees, licensees, subtenants, and
concessionaires of Occupants insofar as their activities relate to the development, use and
occupancy of the Tracts.
“Person” shall mean any individual, partnership, firm, association, corporation, limited
liability company, trust, or any other form of business or Governmental Authority.
“Site Plan” shall mean the site plan for the Adjacent Tract, the current version of which
has been approved by the Parties and is attached hereto as Exhibit D, as may be amended in the
future with the prior approval of the Bank, which approval shall not be unreasonably withheld if
the access and parking remain in similar form and function as the previous Site Plan. Following
such approval, the Bank may (but shall not be obligated to unless requested and the recording of
the amendment is paid for by the other Party) record an amendment to this Declaration to replace
the then existing Site Plan with the approved revised Site Plan.
ARTICLE II
EASEMENTS
Parking and Access Easements. The Adjacent Tract Owner hereby declares that2.1
the Adjacent Tract shall be subject to, and the Adjacent Tract Owner hereby grants, for the
benefit of the Bank Tract and the Bank Tract Owner and its Permittees, a perpetual and
irrevocable easement and right of way over and across the Adjacent Tract (a) for the parking of a
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135982281v34_386430-01729
total of thirty-eight (38) automobiles and other motor vehicles (the “Parking Easement”) and (b)
for nonexclusive pedestrian and vehicular ingress, egress and access, and other incidental uses
across the areas designated for such uses (the “Access Easements” and, together with the Parking
Easement, collectively, the “Easements”). The Easements are appurtenant to the Bank Tract, as
the dominant tenement, and shall burden the Adjacent Tract, as the servient tenement, and shall
initially be located over those portions of the Adjacent Tract which are shown on Exhibit E
attached hereto as the “Parking Easement Area” and the “Access Easement Area”. The Parking
Easement Area and Access Easement Area shall not be changed without the prior written
approval of the Bank Tract Owner, and shall in all events provide a clear and unobstructed
pedestrian passageway from the Adjacent Tract to the Bank Tract.
Designated Parking Spaces. So long as the Parking Structure exists on the2.2
Adjacent Tract, the Easements shall allow the Bank Tract Owner and its Permittees (a) the
exclusive use of twenty (20) parking stalls, to be located on the street level of the Parking
Structure (“Reserved Spaces”); and (b) the non-exclusive use of eighteen (18) parking stalls in
the Parking Structure (“Non-Reserved Spaces” and, together with the Reserved Spaces,
collectively, the “Parking Spaces”). If, at any time, the Parking Structure is damaged or
demolished or otherwise no longer exists on the Adjacent Tract, then the Adjacent Tract Owner
must always provide the Reserved Spaces on the Adjacent Tract at street level, and the
Non-Reserved Spaces at such location on the Adjacent Tract as the Bank Tract Owner shall
approve in its reasonable discretion. The Reserved Spaces shall be designated by signs or other
markings to be installed by Adjacent Tract Owner at its expense, but subject to the reasonable
approval of the Bank Tract Owner. Initially, the Reserved Spaces shall be designated for “Bank
Patron Use Only”.
No Parking Charges. Except as expressly provided in Section 4.2 of this2.3
Declaration, the use of the Easements by the Bank Tract Owner and its Permittees, including the
rights to the use of the Reserved Spaces hereunder, shall be at no charge whatsoever to the Bank
Tract Owner or its Permittees.
Default. In the event Adjacent Tract Owner fails to perform its obligations or2.4
materially interferes with the Easements under this Article II, then, without limiting the rights of
the Bank Tract Owner pursuant to Article VI below, Bank Tract Owner shall have the right to
claim a default pursuant to Section 6.1 and avail itself of all the provisions therein contained,
including the right to lien the Adjacent Tract and receive reimbursement for all sums expended to
cure such default (including Interest thereon).
ARTICLE III
CONSTRUCTION
Permitted Alterations. Adjacent Tract Owner shall make no material alterations,3.1
additions or improvements (collectively,“Alterations”) on or to the Adjacent Tract that change
the physical layout of, or access to, the Parking Easement or change the rights of the Bank Tract
Owner set forth in this Declaration without the approval of the Bank Tract Owner, which shall
not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Bank
hereby approves construction of the Parking Structure and other improvements as shown on the
Site Plan. All requests for approval of the Bank Tract Owner hereunder shall be submitted in
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writing to the Bank Tract Owner and shall be accompanied by detailed plans of the proposed
Alterations as well as a construction schedule for such work (collectively the “Plans”). Approval
of the Plans by the Bank Tract Owner shall not constitute assumption of responsibility for the
accuracy, sufficiency or propriety thereof, nor shall such approval constitute a representation or
warranty that the Plans comply with Governmental Requirements. No material deviation which
changes the physical layout of, or access to, the Parking Easement shall be made from the
approved Plans. Adjacent Tract Owner agrees that once it has commenced construction of any
improvements, it shall exercise due diligence to complete such construction work within a
reasonable time.
No Interference. Adjacent Tract Owner agrees that any Alterations or other3.2
construction activities performed or authorized by it shall not: (a) unreasonably interfere with the
use, occupancy or enjoyment of any part of the Bank Tract by the Bank Tract Owner or its
Permittees; or (b) cause any Building located on the Bank Tract to be in violation of any
Governmental Requirements as a result of performing such Alterations or other construction
activities. Adjacent Tract Owner agrees to defend, protect, indemnify and hold harmless Bank
from and against all claims and demands, including any action or proceeding brought thereon,
and all costs, losses, expenses and liabilities of any kind relating thereto, including reasonable
attorneys fees and cost of suit, arising out of or resulting from any construction activities
performed or authorized by Adjacent Tract Owner; provided, however, that the foregoing shall
not be applicable to either events or circumstances caused by the gross negligence or willful act
or omission of Bank, its licensees, concessionaires, agents, servants, employees, or anyone
claiming by, through, or under any of them.
ARTICLE IV
MAINTENANCE AND REPAIR
Adjacent Tract Owner’s Obligations. Adjacent Tract Owner will at all times keep4.1
the parking facilities located on the Adjacent Tract, including the Parking Structure (collectively,
the “Parking Facilities”), and all other improvements located on the Adjacent Tract in good
condition and repair and in compliance with all Governmental Requirements, and use
commercially reasonable efforts to maintain the same free from hazardous conditions, waste and
refuse, and any repairs or replacements shall be with materials at least equal to the quality of the
materials being repaired or replaced. Such operation, maintenance and repair obligations shall
include, but not be limited to, the following with respect to the Parking Facilities:
Drive and Parking Areas. Maintaining all paved surfaces and curbs in a4.1.1
smooth and evenly covered condition, including, without limitation, periodic replacement of
base, skin patch, and resurfacing, when necessary to re-stripe and reseal the parking lot.
Debris and Refuse. Regularly removing papers, debris, filth, refuse, ice4.1.2
and snow, including vacuuming and broom-sweeping, to the extent necessary to keep the Parking
Facilities in a first-class, clean and orderly condition. All sweeping shall be at appropriate
intervals during such times as to minimize interference with the conduct of business or use of the
Parking Facilities by Permittees.
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Directional Signs and Markers. Maintaining, cleaning and replacing any4.1.3
appropriate directional, stop or handicapped parking signs or markers; restriping parking stalls
and drive lanes as necessary to maintain parking space designation and traffic direction; and
keeping clearly marked fire lanes, loading zones, no parking areas and pedestrian cross-walks.
Lighting. Maintaining, cleaning and replacing lighting facilities, as well as4.1.4
any exterior lighting fixtures, including any lighting fixtures associated with a canopy or other
architectural feature forming a part of the Parking Facilities, including, but not limited to, the
provision of walkways from the Parking Facilities to the Bank Tract and the Bank’s automatic
teller machines (“ATMs”) lit in accordance with California AB 244 requirements. The Bank may
install additional lighting along such walkways at its sole cost upon reasonable notice to
Adjacent Tract Owner.
Landscaping. Maintaining and replacing all landscape plantings, trees and4.1.5
shrubs, and keeping such landscaping trimmed and weeded and in compliance with all
Governmental Requirements; maintaining and replacing landscape planters as appropriate,
including those adjacent to exterior walls of Parking Facilities; providing water for landscape
irrigation through a properly maintained system, and maintaining such system in compliance with
Governmental Requirements.
Obstructions. Keeping the parking stalls and drive lanes in the Parking4.1.6
Facilities free from obstructions, including those caused by the sale or display of merchandise.
Sidewalks and Walkways. Maintaining, cleaning and replacing sidewalks4.1.7
and walkways in and adjacent to the Parking Facilities, including the passageway from the
Adjacent Tract to the Bank Tract. Sidewalks and walkways shall be swept, cleaned and washed
periodically at appropriate intervals during such times as to minimize interference with the
conduct of business or use of the Parking Facilities.
Security. Bank shall have the right to install a mirror for visibility at or4.1.8
near the ATMs, as designated on the Site Plan. Bank shall also have the right to install security
cameras along the “courtyard” as designated on the Site Plan. The additional mirror and cameras
shall be installed and maintained as Bank’s sole cost and expense.
Maintenance Costs.4.2
The Bank Tract Owner shall reimburse Adjacent Tract Owner annually for4.2.1
its proportionate share (“Bank’s Proportionate Share”) of all routine maintenance, operation,
taxes, and insurance costs incurred by the Adjacent Tract Owner for the Parking Facilities
(“Maintenance Costs”); provided, however, that any damage to the Easement Area caused by a
party’s (or its employees’, agents’, contractors’, vendors’, visitors’ and invitees’) negligence,
misconduct, misuse, overuse or intentional act shall be paid entirely by such party, except to the
extent, in the case of the Bank Tract Owner, such damage is covered by the insurance carried by
the Adjacent Tract Owner (or required to be carried by the Adjacent Tract Owner pursuant to this
Declaration). Bank’s Proportionate Share shall be calculated as a fraction, the numerator of
which is thirty-eight (38) and the denominator of which is the total number of parking spaces in
the Parking Facilities, provided that in no event shall Bank’s Proportionate Share exceed twenty
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and seventy-seven one-hundredths percent (20.77%). Within sixty (60) days after the close of
each calendar year, Adjacent Tract Owner will deliver to the Bank Tract Owner a statement,
certified as accurate by Adjacent Tract Owner (“Expense Statement”), of the total Maintenance
Costs incurred by Adjacent Tract Owner during the previous calendar year. The Bank Tract
Owner will reimburse Adjacent Tract Owner for Bank’s Proportionate Share of such
Maintenance Costs within thirty (30) days after receiving the Expense Statement. In no event
shall the term Maintenance Costs include the cost of any capital repairs, replacements or
improvements.
If Bank Tract Owner disputes any amount set forth in the Expense4.2.2
Statement, Bank Tract Owner shall have the right, at no cost to Adjacent Tract Owner (except as
set forth below), after reasonable notice to Adjacent Tract Owner, to have its authorized
employees, agents or contractors inspect, at Adjacent Tract Owner’s designated office in Los
Angeles County, during normal business hours, Adjacent Tract Owner’s books, records, and
supporting documents concerning the Maintenance Costs set forth in the Expense Statement,
provided that Bank Tract Owner commences and completes such audit within six (6) months
following its receipt of the Expense Statement in question. Adjacent Tract Owner and Bank Tract
Owner shall reasonably cooperate with each other so that such inspection can be performed
pursuant to a mutually acceptable schedule, in an expeditious manner, and without undue
interference with Adjacent Tract Owner’s operations. If such audit reveals that Adjacent Tract
Owner has overcharged Bank Tract Owner, Adjacent Tract Owner shall reimburse Bank Tract
Owner for the amount of such overcharge within thirty (30) days after (a) the results of such audit
are made available to Adjacent Tract Owner and (b) Adjacent Tract Owner receives a letter from
Bank Tract Owner requesting reimbursement for the overcharge. Bank Tract Owner shall pay the
cost of such audit unless the audit reveals that the Expense Statement that was the subject of the
audit overstated the Maintenance Costs by five percent (5%) or more, in which case all actual
costs incurred by Bank Tract Owner in connection with the audit shall be reimbursed by Adjacent
Tract Owner within thirty (30) days after demand for payment of such costs.
ARTICLE V
USE RESTRICTIONS; INSURANCE
Use Restrictions. Notwithstanding any provision of the DDA to the contrary or5.1
other document or instrument affecting the Adjacent Tract, the following use and occupancy
restrictions shall be applicable to the Adjacent Tract so long as the improvements on the Bank
Tract are occupied by a Financial Services Institution:
No Financial Services Institutions (as hereinafter defined) shall be located on the Adjacent Tract
nor shall any Banking Use (as defined below) be permitted on the Adjacent Tract. For purposes
of this Declaration, the term “Financial Services Institution” shall mean any entity engaged in any
one or more of the following activities (all or any one or more of which is hereinafter,
collectively, referred to as a “Banking Use”): (a) operation of a commercial bank, savings bank,
savings and loan association, credit union, a mutual or thrift association or any other institution
that accepts deposits of money, whether accomplished by means of full service, express service,
or motorbank facilities, automated teller machines or other self-service banking devices or
otherwise (except to the extent that such automated teller machines are located within a
convenience store or market of at least 5,000 square feet), (b) operation of a stock brokerage
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firm, (c) operation of a mortgage broker, (d) operation of a finance company, mortgage company
or any other institution that lends money, (e) investment banking, or (f) any other financial
services or products that Bank of America, National Association (or its corporate successors by
merger, corporate reorganization or similar transaction) is permitted to offer by law.
Insurance.5.2
Adjacent Tract Owner shall maintain or cause to be maintained in full5.2.1
force and effect in commercially reasonable amounts, which in no event shall be less than the
minimum insurance coverages set forth below:
Commercial General Liability Insurance with a single limit of(a)
liability of Two Million Dollars ($2,000,000.00) and an aggregate of Two Million Dollars
($2,000,000.00) for bodily injury, personal injury and property damage, arising out of any
one occurrence.
Insurance coverage insuring the Parking Facilities against damage(b)
or loss by fire and such other hazards (including lightning, windstorm, hail, explosion,
riot, acts of striking employees, civil commotion, vandalism, malicious mischief, aircraft,
vehicle, and smoke) as are covered by the broadest form of extended coverage
endorsement available from time to time, in an amount not less than the full insurable
value of the Parking Facilities, with a deductible amount not to exceed Twenty-Five
Thousand Dollars ($25,000), providing all of the following coverage:
Against damage or loss by flood, if the Parking Facilities are located in an area identified
by the United States Secretary of Housing and Urban Development or any successor or
other appropriate authority (governmental or private) as an area having special flood
hazards and in which flood insurance is available under the National Flood Insurance Act
of 1968 or the Flood Disaster Protection Act of 1973, as amended, modified,
supplemented, or replaced from time to time, on such basis and in such amounts as the
City may require.
Workers’ compensation liability insurance as required by any(c)
applicable law or regulation; and
Automobile Liability Insurance for owned, hired and non-owned(d)
automobiles. The limits of liability shall not be less than $1,000,000 combined single
limit each accident for bodily injury and property damage.
Prior to commencing any Alterations or other construction activities in or5.2.2
to the Parking Facilities, Adjacent Tract Owner shall obtain (or require its contractor or
subcontractor to obtain) and thereafter maintain so long as such construction activity is occurring,
at least the minimum insurance coverages set forth below:
Workers’ compensation as required by any applicable law or(a)
regulation.
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Commercial General Liability insurance covering all operations by(b)
or on behalf of the contractor, which shall include the coverages for Premises and
Operations, Products and Completed Operations, Contractual Liability, insuring the
indemnity obligations assumed by contractor under the contract documents, Broad Form
Property Damage (including Completed Operations), Explosion, Collapse and
Underground Hazards, and Personal Injury Liability, in amounts not less than:
$1,000,000 each occurrence (for bodily injury and property(i)
damage).
$1,000,000 for Personal Injury Liability.(ii)
$2,000,000 aggregate for Products and Completed(iii)
Operations.
$2,000,000 general aggregate applying separately to this(iv)
project.
Automobile liability insurance including coverage for owned, hired(c)
and non-owned automobiles. The limits of liability shall not be less than $1,000,000
combined single limit each accident for bodily injury and property damage. The
contractor shall require each of his subcontractors to include in their liability insurance
policies coverage for automobile contractual liability.
The contractor and subcontractor (for subcontracts larger than(d)
$100,000) shall also carry umbrella/excess liability insurance with a single limit of
liability of Two Million Dollars ($2,000,000.00) and an aggregate of Two Million Dollars
($2,000,000.00).
All insurance required by Adjacent Tract Owner pursuant to this Section5.2.3
5.2 shall be written on an occurrence basis and procured from companies rated by Best’s Rating
Guide not less than A:VII, and which are authorized to do business in the State of California. All
insurance may be provided under (a) an individual policy covering the Adjacent Tract; (b) a
blanket policy or policies which includes other liabilities, properties and locations of Adjacent
Tract Owner; provided, however, that if such blanket commercial general liability insurance
policy or policies contain a general policy aggregate of less than $5,000,000, then Adjacent Tract
Owner shall also maintain excess liability coverage necessary to establish a total liability
insurance limit of $5,000,000; (c) a plan of self-insurance, provided that any Party so
self-insuring has $250,000,000 of both net worth and net current assets; or (d) a combination of
any of the foregoing insurance programs.
All dollar amounts in this Section 5.2 shall be adjusted on the date that is5.2.4
10 years after the recording of this Declaration and every 10 years thereafter to be the equivalent
of 2018 dollars.
Indemnification. Adjacent Tract Owner agrees to defend, protect, indemnify and5.3
hold harmless the Bank Tract Owner from and against all claims or demands, including any
action or proceedings brought thereon, and all costs, losses, expenses and liability of any kind
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relating thereto, including reasonable attorneys’ fees and cost of suit, arising out of or resulting
from the injury to or death of any Person, or damage to the property of any Person located on the
Adjacent Tract; provided, however, the foregoing obligation shall not apply to claims or demands
based on the gross negligence or willful act or omission of Bank, its agents, or employees.
ARTICLE VI
MISCELLANEOUS
Default.6.1
The occurrence of any one or more of the following events shall constitute6.1.1
a material default and breach of this Declaration by the non-performing Party (the “Defaulting
Party”):
The failure to make any payment required to be made hereunder to(a)
the other Party within fourteen (14) days after the due date.
The failure to observe or perform any of the covenants, conditions(b)
or obligations of this Declaration, other than as described in (a) above, within thirty (30)
days after the issuance of a notice by another Party, as the case may be (the
“Non-Defaulting Party”) specifying the nature of the default claimed or such longer time
period as shall be reasonably necessary to effect such cure, if the nature of such failure
will take longer than thirty (30) days to cure, provided the Party receiving such notice
commences such cure within such thirty (30) day period and diligently pursues the same
thereafter to its completion.
With respect to any default under Section 6.1.1(b), any Non-Defaulting6.1.2
Party shall have the right following the expiration of any applicable cure period, if any, but not
the obligation, to cure such default by the payment of money or the performance of some other
action for the account of and at the expense of the Defaulting Party; provided, however, that in
the event such default shall constitute an emergency condition, the Non-Defaulting Party, acting
in good faith, shall have the right to cure such default upon such advance notice as is reasonably
possible under the circumstances or, if necessary, without advance notice, so long as notice is
given as soon as possible thereafter. To effectuate any such cure, the Non-Defaulting Party shall
have the right to enter upon the Tract of the Defaulting Party to perform any necessary work or
furnish any necessary materials or services to cure the default of the Defaulting Party. Each Party
shall be responsible for the default of its Occupants. In the event any Non-Defaulting Party shall
cure a default, the Defaulting Party shall reimburse the Non-Defaulting Party for all costs and
expenses incurred in connection with such curative action, plus Interest as provided herein,
within fourteen (14) days after receipt of demand therefor, together with reasonable
documentation supporting the expenditures made. In the event the Defaulting Party does not
reimburse the Non-Defaulting Party as set forth above, in addition to any other remedy available,
the Non-Defaulting Party shall have the right to offset such amount owed against any current or
future sum of money due the Defaulting Party until the full amount owed is recovered.
The right to cure the default of another Party shall not be deemed to:6.1.3
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135982281v34_386430-01729
Impose any obligation on a Non-Defaulting Party to do so.(a)
Render the Non-Defaulting Party liable to the Defaulting Party or(b)
any third party for an election not to do so.
Relieve the Defaulting Party from any performance obligation(c)
hereunder.
Relieve the Defaulting Party from any indemnity obligation as(d)
provided in this Declaration.
Costs, expenses and Interest accruing and/or assessed pursuant to Section6.1.4
6.1.1(a) and/or Section 6.1.2 above shall constitute a lien against the Defaulting Party’s Tract.
Such lien shall attach and take effect only upon recordation of a claim of lien in the office of the
Recorder of the County of Los Angeles, California by the Party making such claim, and shall be
subordinate to the lien of any mortgage recorded prior to the recordation of such claim of lien.
The claim of lien shall include the following:
The name of the lien claimant.(a)
A statement concerning the basis for the claim of lien and(b)
identifying the lien claimant as a Non-Defaulting Party.
An identification of the owner or reputed owner of the Tract or(c)
interest therein against which the lien is claimed.
A description of the Tract against which the lien is claimed.(d)
A description of the work performed which has given rise to the(e)
claim of lien and a statement itemizing the amount thereof.
A statement that the lien is claimed pursuant to the provisions of(f)
this Declaration, reciting the date and document number of recordation hereof. The notice
shall be duly verified, acknowledged and contain a certificate that a copy thereof has been
served upon the Party against whom the lien is claimed, by personal service or by mailing
pursuant to Section 6.3 below. The lien so claimed shall attach from the date of
recordation solely in the amount claimed thereby and may be enforced in any judicial
proceedings allowed by law, including without limitation, a suit in the nature of a suit to
foreclose a mortgage/deed of trust or mechanic’s lien under the applicable provisions of
the law of the State in which the Defaulting Party’s Tract is located.
Each Non-Defaulting Party shall have the right to prosecute any6.1.5
proceedings at law or in equity against any Defaulting Party hereto, or any other Person, violating
or attempting to violate or defaulting upon any of the provisions contained in this Declaration,
and to recover damages for any such violation or default. Such proceeding shall include the right
to restrain by injunction any violation or threatened violation by another Party or Person of any of
the terms, covenants or conditions of this Declaration, or to obtain a decree to compel
performance of any such terms, covenants or conditions, it being agreed that the remedy at law
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135982281v34_386430-01729
for a breach of any such term, covenant or condition (except those, if any, requiring the payment
of a liquidated sum) is not adequate. All of the remedies permitted or available to a Party under
this Declaration or at law or in equity shall be cumulative and not alternative, and the invocation
of any such right or remedy shall not constitute a waiver or election of remedies with respect to
any other permitted or available right or remedy.
Interest. Any time a Party shall not pay any sum payable hereunder to another6.2
Party within ten (10) days of the due date, such delinquent Party shall pay interest on such
amount from the due date to and including the date such payment is received by the Party entitled
thereto, at the lesser of:
The highest rate permitted by law to be either paid on such typ e of6.2.1
obligation by the Party obligated to make such payment or charged by the Party to whom such
payment is due, whichever is less.
The prime rate, plus three percent (3%). As used herein,“prime rate” shall6.2.2
mean the rate of interest published from time to time as the “Prime Rate” in the Wall Street
Journal under the heading “Money Rates”; provided, however, that (i) if more than one such rate
is published therein the prime rate shall be the highest such rate and (ii) if such rate is no longer
published in the Wall Street Journal or is otherwise unavailable, the prime rate shall be a
substantially comparable index of short term loan interest rates charged by U.S. banks to
corporate borrowers selected by the Bank.
Notices. All notices, demands and requests (collectively, the “notice”) required or6.3
permitted to be given under this Declaration must be in writing and shall be deemed to have been
given as of the date such notice is (i) delivered to the Party intended, (ii) delivered to the then
designated address of the Party intended, (iii) refused at the then designated address of the Party
intended, provided such notice was sent prepaid, or (iv) if sent by nationally recognized
overnight courier with delivery instructions for “next business day” service, or by United States
certified mail, return receipt requested, postage prepaid and addressed to the then designated
address of the Party intended, on the day the notice is delivered or refused as shown by the
records of such courier or as noted on the return receipt (or if no date is noted on the return
receipt, the postmark of such return receipt). The initial addresses of the Parties shall be:
Bank:Bank of America, National Association
Mail Code: NC2-150-03-06
13850 Ballantyne Corporate Place
Charlotte, North Carolina 28277
Attn: CA7-115
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135982281v34_386430-01729
With copies to:Bank of America, National Association
2505 W. Chandler Blvd.
AZ1-805-01-30
Chandler, AZ 85224
Attn: Leslie O'Brien, Vice President – Sr. Business
Control Specialist
Bank of America, National Association
214 North Tryon Street
Mail Code: NC1-027-18-05
Charlotte, NC 28255
Attention: Thomas BissettBissette
Katten Muchin Rosenman LLP
550 South Tryon Street, Suite 2900
Charlotte, NC 28202
Attention: Jennifer A. Dunbar
Adjacent Tract Owner:Azusa Block 36, LLC
_______________________________
_______________________________
_______________________________
Upon at least ten (10) days prior written notice, each Party may change its address to any
other address within the United States of America.
Casualty; Condemnation.6.4
If the Parking Facilities are partially or totally destroyed by fire or other6.4.1
casualty covered by insurance, so as to make the Parking Spaces unavailable for the use of the
Bank Tract Owner, Adjacent Tract Owner will proceed with all due diligence to repair and
restore the Parking Facilities so as to provide Bank Tract Owner with the requisite number of
Parking Spaces granted under the Parking Easement or, if Adjacent Tract Owner elects not to
replace the Parking Facilities, Adjacent Tract Owner shall promptly remove all improvements
and debris and provide to the Bank Tract thirty-eight (38) paved, usable surface parking spaces in
the approximate location shown on Exhibit F hereto. Other than as provided in this Section 6.4.1,
Adjacent Tract Owner shall be entitled to retain all insurance proceeds and payments resulting as
a consequence of any damage or destruction to its Tract.
In the event any portion of the Parking Facilities, or access thereto shall be6.4.2
condemned, or conveyed under threat of condemnation, the award shall be paid to Adjacent Tract
Owner, and the Bank Tract Owner hereby waives and releases any right to recover any value
attributable to the property interest so taken, except that (a) the award shall be used to relocate,
replace or restore the Parking Facilities to a useful condition or to provide thirty-eight (38) paved,
usable surface parking spaces located on the portion of the Adjacent Tract which is closest to the
Bank Tract, and (b) if the Easements shall be materially impaired, the portion of the award
allocable to the Easements shall be paid to the Bank Tract Owner. In addition to the foregoing, if
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135982281v34_386430-01729
a separate claim can be filed for the taking of any other property interest existing pursuant to this
Declaration, then the owner of such other property interest shall have the right to seek an award
for the taking thereof. Except to the extent they burden the land taken, no easement or license set
forth in this Declaration shall expire or terminate based solely upon such taking.
Binding Effect. The terms of this Declaration and all easements granted6.5
hereunder shall constitute covenants running with the land and shall bind the Tracts described
herein and inure to the benefit of and be binding upon each Party. This Declaration is not
intended to supersede, modify, amend or otherwise change the provisions of any prior instrument
affecting the land burdened hereby.
Construction and Interpretation.6.6
This Declaration and the Exhibits hereto contain all the representations6.6.1
and the entire agreement between the Parties with respect to the subject matter hereof. Any prior
negotiations, correspondence, memoranda or agreements are superseded in total by this
Declaration and the Exhibits attached hereto. This Declaration has been fully negotiated at arm’s
length between the signatories hereto, and after advice by counsel and other representatives
chosen by such Parties, and such Parties are fully informed with respect thereto; no such Party
shall be deemed the scrivener of this Declaration; and, based on the foregoing, the provisions of
this Declaration and the Exhibits hereto shall be construed as a whole according to their common
meaning and not strictly for or against any Party.
All exhibits are incorporated in this Declaration by reference. As used6.6.2
herein, the term “Declaration” includes such exhibits (as exhibits and, if appropriate, as
subsequently executed agreements and instruments).
Whenever required by the context of this Declaration, (i) the singular shall6.6.3
include the plural, and vice versa, and the masculine shall include the feminine and neuter
genders, and vice versa, and (ii) use of the words “including,”“such as,” or words of similar
import, when following any general term, statement or matter shall not be construed to limit such
statement, term or matter to specific items, whether or not language of non-limitation, such as
“without limitation,” or “but not limited to,” are used with reference thereto, but rather shall be
deemed to refer to all other items or matters that could reasonably fall within the broadest scope
of such statement, term or matter.
The captions preceding the text of each article and section of this6.6.4
Declaration are included only for convenience of reference. Captions shall be disregarded in the
construction and interpretation of this Declaration. Capitalized terms are also selected only for
convenience of reference and do not necessarily have any connection to the meaning that might
otherwise be attached to such term in a context outside of this Declaration.
Invalidation of any of the provisions contained in this Declaration, or of6.6.5
the application thereof to any Person by judgment or court order, shall in no way affect any of the
other provisions hereof or the application thereof to any other Person and the same shall remain
in full force and effect.
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135982281v34_386430-01729
This Declaration may be amended by, and only by, a written agreement6.6.6
signed by the then current Parties and shall be effective only when recorded in Los Angeles
County, California; provided, however, that no such amendment shall impose any materially
greater obligation on, or materially impair any right of, a Party or its Tract without the consent of
such Party. No agreement to any amendment of this Declaration shall ever be required of any
Occupant or Person other than the Parties, nor shall any Occupant or Person other than the
Parties have any right to enforce any of the provisions hereof. Since the submission of a proposed
amendment to the Parties is not an item of “consent” or “approval,” each Party may consider any
proposed amendment to this Declaration in its sole and absolute discretion without regard to
reasonableness or timeliness.
This Declaration may be executed in several counterparts, each of which6.6.7
shall be deemed an original. The signatures to this Declaration may be executed and notarized on
separate pages, and when attached to this Declaration shall constitute one (1) complete
document.
The grantee of any Tract or any portion thereof, by acceptance of a deed6.6.8
conveying title thereto or the execution of a contract for the purchase thereof, whether from an
original party or from a subsequent owner of such Tract, shall accept such deed or contract upon
and subject to each and all of the easements, covenants, conditions, restrictions and obligations
contained herein. By such acceptance, any such grantee shall for himself and his successors,
assigns, heirs, and personal representatives, covenant, consent, and agree to and with the other
party, to keep, observe, comply with, and perform the obligations and agreements set forth herein
with respect to the property so acquired by such grantee.
Each Party, within twenty (20) days of its receipt of a written request from6.6.9
the other Party, shall from time to time provide the requesting Party, a certificate binding upon
such Party stating: (a) to the best of such Party’s knowledge, whether any party to this
Declaration is in default or violation of this Declaration and if so identifying such default or
violation; and (b) that this Declaration is in full force and effect and identifying any amendments
to the Declaration as of the date of such certificate.
In the event of any bankruptcy affecting any Party or Occupant of any6.6.10
Tract, the Parties agree that this Declaration shall, to the maximum extent permitted by law, be
considered an agreement that runs with the land and that is not rejectable, in whole or in part, by
the bankrupt person or entity.
This Declaration has been entered into under, and shall be governed by,6.6.11
the laws of the State of California.
Negation of Partnership. None of the terms or provisions of this Declaration shall6.7
be deemed to create a partnership between or among the Parties in their respective businesses or
otherwise, nor shall it cause them to be considered joint venturers or members of any joint
enterprise. Each Party shall be considered a separate owner, and no Party shall have the right to
act as an agent for another Party, unless expressly authorized to do so herein or by separate
written instrument signed by the Party to be charged.
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135982281v34_386430-01729
Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or6.8
dedication of any portion of the Tracts or of any Tract or portion thereof to the general public, or
for any public use or purpose whatsoever. Except as herein specifically provided, no right,
privileges or immunities of any Party hereto shall inure to the benefit of any third-party Person,
nor shall any third-party Person be deemed to be a beneficiary of any of the provisions contained
herein.
Declaration Shall Continue Notwithstanding Breach. It is expressly agreed that no6.9
breach of this Declaration shall (a) entitle any Party to cancel, rescind, or otherwise terminate this
Declaration, or (b) defeat or render invalid the lien of any mortgage or trust deed made in good
faith and for value as to any part of the Properties (each, a “Mortgagee”); provided, however, that
such limitation shall not affect in any manner any other rights or remedies which a Party may
have hereunder by reason of any such breach, and the Easements and all other restrictions and
other provisions of this Declaration shall be binding upon and effective against any owner whose
title is acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise. Any
Mortgagee shall, by giving a written request to the Parties, be entitled to receive a copy of any
written notice of any default given by any party under this Declaration to another to the extent
such default or alleged default has occurred with respect to the interest encumbered by such
Mortgagee’s security instrument. In the event of any default by any of the Parties under this
Declaration, any Mortgagee holding a security interest in the lands of such Party shall have the
right, but not the obligation, to pay any and all of the amounts due from such Party under this
Declaration and do any other act or thing required of such Party under this Agreement, upon ten
(10) business days’ prior written notice to the Parties, or such longer period of time as may be
reasonably necessary in order to cure the particular default, so long as such Mortgagee
commences the cure of such default within such ten (10) business day period and diligently
prosecutes it to completion.
Time. Time is of the essence of this Declaration.6.10
No Waiver. The failure of any Party to insist upon strict performance of any of6.11
the terms, covenants or conditions hereof shall not be deemed a waiver of any rights or remedies
which that Party may have hereunder, at law or in equity, and shall not be deemed a waiver of
any subsequent breach or default in any of such terms, covenants or conditions. No waiver by any
Party of any default under this Declaration shall be effective or binding on such Party unless
made in writing by such Party and no such waiver shall be implied from any omission by a Party
to take action in respect to such default. No express written waiver of any default shall affect any
other default or cover any other period of time other than any default and/or period of time
specified in such express waiver. One (1) or more written waivers of any default under any
provision of this Declaration shall not be deemed to be a waiver of any subsequent default in the
performance of the same provision or any other term or provision contained in this Declaration.
The failure of a Party to provide a statement for amounts owed within a specified time shall not
act as a waiver of such Party’s right to collect such amount upon the later issuance of the required
statement.
ARTICLE VII
COVENANTS TO RUN WITH THE LAND
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135982281v34_386430-01729
It is intended that each of the easements, covenants, conditions, restrictions, rights and
obligations set forth herein shall run with the land and create equitable servitudes in favor of the
real property benefited thereby, shall bind every person having any fee, leasehold or other interest
therein and shall inure to the benefit of the respective parties and their successors, assigns, heirs,
and personal representatives.
[Remainder of Page Intentionally Blank]
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135982281v34_386430-01729
IN WITNESS WHEREOF, the Parties have caused this Declaration to be executed
effective as of the day and year first above written.
BANK:
BANK OF AMERICA, NATIONAL ASSOCIATION,
a national banking association
By:
Name: Leslie O’Brien
Title: Vice President – Sr. Business Control Specialist
ADJACENT TRACT OWNER:
AZUSA BLOCK 36, LLC,
a California limited liability company
By:
Name:
Title:
39
135982281v34_386430-01729
STATE OF ________________)
)ss.
COUNTY OF ______________)
On ________________, 20___ before me, _____________________________, a Notary Public,
personally appeared Leslie O’Brien, Vice President – Sr. Business Control Specialist, Bank of
America, National Association, a national banking association , 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.
WITNESS my hand and official seal.
______________________________
Signature of Notary Public
[Notary seal]
40
135982281v34_386430-01729
STATE OF ________________)
)ss.
COUNTY OF ______________)
On ________________, 20___ before me, _____________________________, a Notary Public,
personally appeared ______________________________, ________________________ of
Azusa Block 36, LLC, a California limited liability company , 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.
WITNESS my hand and official seal.
______________________________
Signature of Notary Public
[Notary seal]
41
135982281v34_386430-01729
Exhibit A
Legal Description of Original Parcel
[To Be Inserted]
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135982281v34_386430-01729
Exhibit B
Legal Description of Adjacent Tract
[See Attached Pages]
43
135982281v34_386430-01729
EXHIBIT B
LEGAL DESCRIPTION
CITY PROPERTY
CITY OF AZUSA
COUNTY OF LOS ANGELES
APN PORTION OF 8611-003-041
LOTS 5, 46, 47, 48, 49, 50 AND THAT PORTION OF LOT 4 OF BLOCK 36 OF AZUSA
TRACT, IN THE CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, AS PER MAP RECORDED IN BOOK 15 PAGES 93 TO 96 INCLUSIVE OF
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF LOT 1 OF SAID BLOCK 36 OF AZUSA
TRACT; THENCE SOUTHERLY A LONG THE EASTERLY LINE OF SAID LOT 1, SOUTH
00°01’18” WEST 149.88 FEET (150.00 FEET RECORD) TO THE SOUTHEAST CORNER OF
SAID LOT 1, SAID CORNER BEING THE NORTHEAST CORNER OF SAID LOT 50, SAID
CORNER BEING THE TRUE POINT OF BEGINNING; THENCE SOUTHERLY A LONG
THE EASTERLY LINE OF SAID LOTS 50, 49, 48, 47 AND 46, SOUTH 00°01’18” WEST
125.11 FEET (125.00 FEET RECORD) TO THE SOUTHEAST CORNER OF SAID LOT 46;
THENCE WESTERLY A LONG THE SOUTHERLY LINE OF SAID LOT 46, NORTH
89°58’20” WEST 140.16 FEET (140.00 FEET RECORD) TO THE SOUTHWEST CORNER
OF SAID LOT 46; THENCE NORTHERLY A LONG THE WESTERLY LINE OF SAID LOTS
46, 47, 48, 49 AND 50, NORTH 00°00’44” EAST 125.14 FEET (125.00 FEET RECORD) TO
THE NORTHWEST CORNER OF SAID LOT 50; THENCE EASTERLY A LONG THE
NORTHERLY LINE OF LOT 50, SAID LINE BEING THE SOUTHERLY LINE OF LOTS 7
AND 6 OF SAID BLOCK 36 OF AZUSA TRACT, SOUTH 89°57’39” EAST 40.05 FEET
(40.00 FEET RECORD) TO THE SOUTHWEST CORNER OF SAID LOT 5; THENCE
NORTHERLY ALONG THE WESTERLY LINE OF SAID LOT 5, NORTH 00’01’05” EAST
149.88 FEET (150.00 FEET RECORD) TO THE NORTHWEST CORNER OF SAID LOT 5;
THENCE EASTERLY A LONG THE NORTHERLY LINE OF SAID LOTS 5 AND 4, SOUTH
89°57’39” EAST 23.12 FEET MORE OR LESS TO A POINT 77.02 FEET WESTERLY FROM
SAID NORTHEAST CORNER OF SAID LOT 1; THENCE LEAVING SAID NORTHERLY
LINE, SOUTH 00°01’18” WEST 27.32 FEET; THENCE SOUTH 89°57’39” EAST 16.96 FEET
TO A POINT ON THE EASTERLY LINE OF SAID LOT 4; THENCE SOUTHERLY ALONG
SAID EASTERLY LINE SOUTH 00°01’18” WEST 122.56 FEET TO THE SOUTHEAST
CORNER OF SAID LOT 4, SAID CORNER BEING ON THE NORTHERLY LINE OF SAID
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135982281v34_386430-01729
LOT 50; THENCE EASTERLY A LONG SAID NORTHERLY LINE SOUTH 89°57’39” EAST
60.06 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING: 23,082.11 SQUARE FEET 0.530 ACRES MORE OR LESS
THIS REAL PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY
DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYOR’S
ACT.
_____________________________________
DOUGLAS R. MELCHIOR, P.L.S. #4611
LICENSE EXPIRES 9-30-2008
DATE: DECEMBER 7, 2007
45
135982281v34_386430-01729
46
135982281v34_386430-01729
47
135982281v34_386430-01729
48
135982281v34_386430-01729
Exhibit C
Legal Description of Bank Tract
[See Attached Pages]
49
135982281v34_386430-01729
EXHIBIT C
LEGAL DESCRIPTION
BANK PROPERTY
CITY OF AZUSA
COUNTY OF LOS ANGELES
APN PORTION OF 8611-003-041
LOTS 1, 2, 3 AND THAT PORTION OF LOT 4 OF BLOCK 36 OF AZUSA TRACT, IN THE
CITY OF AZUSA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 15 PAGE 93 TO 96 INCLUSIVE OF MISCELLANEOUS RECORDS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEAST CORNER OF SAID LOT 1, SAID CORNER BEING
THE TRUE POINT OF BEGINNING; THENCE SOUTHERLY A LONG THE EASTERLY
LINE OF SAID LOT 1, SOUTH 0°01’18” WEST 149.88 FEET (150.00 FEET RECORD) TO
THE SOUTHEAST CORNER OF SAID LOT 1; THENCE LEAVING SAID EASTERLY LINE
ALONG THE SOUTHERLY LINES OF SAID LOTS 1, 2 AND 3, NORTH 89°57’39” WEST
60.06 FEET (60.00 RECORD) TO THE SOUTHWEST CORNER OF SAID LOT 3; THENCE
NORTHERLY A LONG THE WESTERLY LINE OF SAID LOT 3, NORTH 0°01’18” EAST
122.56 FEET; THENCE LEAVING SAID WESTERLY LINE NORTH 89°57’39” WEST 16.96
FEET; THENCE NORTH 0°01’18” EAST 27.32 FEET TO THE NORTHERLY LINE OF SAID
LOT 4; THENCE EASTERLY A LONG SAID NORTHERLY LINE OF SAID LOT 4, AND
ALONG THE NORTHERLY LINE OF SAID LOTS 3, 2 AND 1, SOUTH 89°57’39” EAST
77.02 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING: 9465.14 SQ. FT.0.217 ACRES MORE OR LESS
THIS REAL PROPERTY DESCRIPTION HAS BEEN PREPARED BY ME, OR UNDER MY
DIRECTION, IN CONFORMANCE WITH THE PROFESSIONAL LAND SURVEYOR’S
ACT.
___________________________________________
DOUGLAS R. MELCHIOR, P.L.S. #4611
LICENSE EXPIRES 9-30-2008
DATE: DECEMBER 7, 2007
JN 3044 PAGE 1 OF 1
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135982281v34_386430-01729
51
135982281v34_386430-01729
Exhibit D
Approved Site Plan
52
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Exhibit E
Easement Areas
53
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54
135982281v34_386430-01729
Exhibit F
55
135982281v34_386430-01729
Exhibit D
to Amended and Restated Parking Easement Agreement
Facade Agreement
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135982281v34_386430-01729
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Bank of America, National Association
214 N. Tryon Street
Mail Code: NC1-027-18-05
Charlotte, NC 28255
Attention: Thomas BissettBissette
Prepared by:
F. Eugene Allison, Esq.
Katten Muchin Rosenman LLP
550 S. Tryon Street, Suite 2900
Charlotte, NC 28202
LICENSE AGREEMENT
(Façade Work)
THIS LICENSE AGREEMENT (“Agreement”) is made this _______________ day of
_______________ 20___, by and between BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking association (“Bank”), successor by merger to Bank of
America National Trust and Savings Association, and AZUSA BLOCK 36, LLC, a California
limited liability company (“Licensee”).
WHEREAS, Bank owns that certain building located at 152 East Foothill Boulevard,
Azusa, California (“Building”), which is located on the real property owned by Bank, more
particularly described on Exhibit A attached hereto (“Bank’s Parcel”);
WHEREAS, Licensee intends to construct certain improvements (“Project”) on
Licensee’s real property located immediately adjacent to Bank’s Parcel, more particularly
described on Exhibit B attached hereto (“Licensee’s Parcel”);
WHEREAS, Licensee has agreed to make certain improvements to the facade of the
Building in order to maintain a consistent appearance with the Project;
WHEREAS, the work (“Work”) to be performed by Licensee under this Agreement on
Bank’s Parcel includes work to the facade of the Building to match the stylistic theme of the
improvements Licensee shall construct on Licensee’s Parcel, as set forth on the elevation and
Work requirements attached hereto as Exhibit C; and
WHEREAS, Bank is willing to grant Licensee a license to enter upon, over, under,
across, and through (as applicable) Bank’s Parcel for the purpose of performing the Work, on the
terms set forth herein.
NOW, THEREFORE, in consideration of the covenants herein contained, Bank and
Licensee hereby agree as follows:
ARTICLE I
GRANT OF LICENSE
Grant of License. Subject to the terms and conditions of this Agreement, Bank1.1
hereby grants to Licensee, its contractors and agents, a license (the “License”) to enter
periodically upon Bank’s Parcel for the purpose of perforating the Work.
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Expiration and Termination of License. The term of this Agreement and the1.2
License granted hereby shall commence upon the recordation hereof and shall expire upon the
earlier of: (i) two (2) years from the date hereof; or (ii) the completion of construction by
Licensee of the Work, unless earlier terminated by Bank pursuant to Section 7.2 of this
Agreement. Upon the expiration or earlier termination of this Agreement, if some or all of the
Work has been performed and/or some or all materials, supplies or equipment have been placed
on Bank’s Parcel, then Licensee shall immediately remove all such materials, supplies and
equipment from Bank’s Parcel, in a manner that is safe and compatible with the uninterrupted
operations of Bank and the use and enjoyment of the Building. In such event, Licensee shall
restore Bank’s Parcel in accordance with any applicable building code(s) and to Bank’s
reasonable satisfaction. Upon the expiration or earlier termination of this Agreement, and after
such removal and restoration, Bank shall record a termination of this Agreement in the official
records of Los Angeles County, CA.
ARTICLE II
DESIGN REVIEW AND ACCESS PLAN
Approval of Drawings and Information. Prior to commencing construction of the2.1
Work, Licensee shall submit to Bank a complete set of fully detailed drawings and design
calculations for the construction of the Work, in accordance with Section 2.2 below. Licensee
shall not commence any work on Bank’s Parcel unless and until Bank has approved such
drawings and calculations. After approval, no material deviations or modifications of the Work
shall be permitted or performed until fully detailed drawings and design calculations of all such
deviations and modifications have first been approved in writing by Bank. It is specifically
agreed that any approval by Bank of such drawings and information provided by Licensee is for
the purpose of determining whether the Work and activities relating thereto will interfere with
the Building, access to and use of the Building and Bank’s Parcel, and the day-to-day operations
of Bank and not for determining the adequacy of the drawings and information. Licensee shall
have the full, complete and exclusive responsibility for the design and construction of the Work
in all respects, including, but not limited to, compliance with all laws, regulations, rules and
industry standards, and for the appearance, integrity and safety of the Building and Bank’s Parcel
to the extent affected or impacted by the construction of the Work.
Design; Permits. Licensee shall cause all drawings, calculations and designs of2.2
the Work: (i) to be signed by Licensee’s architect and, where appropriate, a licensed California
structural engineer approved in advance in writing by Bank (by execution of this Agreement, the
Bank hereby approves Nishkian Chamberlain as initial structural engineer for the Work and
William Hezmalhalch Architects as the initial architect for the Work); (ii) to be warranted by the
design professional responsible for the respective portion of the Work to be free of design defects
and to be warranted in writing by such design professional to Licensee and Bank to be free from
any defects in design, and Licensee agrees to give to Bank any assignment or other assurances
that may be necessary to permit Bank to directly enforce such warranty against such design
professional (such warranties shall include, without charge to Bank, the repair of any portion of
the Building that may be damaged as a result of the removal or replacement of the defective
design); (iii) to be certified by the architect as in compliance with all applicable state and local
laws, and (iv) to be approved by any governmental agency having authority over the Work, to the
extent required by law. Bank acknowledges that Licensee’s role with respect to the Work is to
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engage licensed professionals to design and thereafter perform the Work. Bank acknowledges
that Licensee is not a design professional and will not be the contractor for such Work, and that
Licensee is not providing a warranty or guaranty of work performed by other parties. Licensee
shall be responsible for obtaining and paying for all building permits required for the Work.
General Contractor; Mechanics’ Liens.2.3
Licensee shall retain a licensed general contractor as the contractor(a)
for the construction of the Work (the “Contractor”). The Contractor must be experienced
in the performance of work comparable to the Work on buildings comparable to the
Building, and shall be subject to Bank’s prior approval, which approval shall not be
unreasonably withheld, conditional or delayed. By the execution of this Agreement, Bank
hereby approves Pacific Empire Builders, Inc. as Contractor. All subcontractors,
laborers, materialmen and suppliers used by Licensee or Contractor (such subcontractors,
laborers, materialmen and suppliers, together with the Contractor, are collectively
referred to herein as “Licensee’s Agents”) must be approved in writing by Bank, which
approval shall not be unreasonably withheld, conditioned or delayed. Bank shall approve
or reject each proposed Licensee Agent within seven (7) business days of submittal;
provided, that if Bank does not respond within such seven (7) day period then the
proposed Licensee Agent will be deemed approved. Notwithstanding the foregoing, if
any of the Work affects the Building security system, such Work shall be performed by
the contractor designated by Bank.
Licensee shall furnish Bank with true and correct copies of all(b)
construction contracts between or among Licensee, the Contractor and all subcontractors
relating to the Work, provided that Bank’s review of such contracts shall not relieve
Licensee from its obligations under this Agreement nor shall such review be deemed to
constitute Bank’s representation that such contracts comply with the requirements of this
Agreement. All such contracts shall expressly provide that (i) the work to be performed
thereunder shall be subject to the terms and conditions of this Agreement, and (ii) the
Work (or in the case of a subcontractor, the portion thereof performed by such
subcontractor) will be performed in a good and workman-like manner and will be
warranted in writing to Licensee and Bank to be free from any defects in workmanship
and materials for a period of not less than one (1) year from the date of completion of the
Work. Licensee agrees to give to Bank any assignment or other assurances which may be
necessary to permit Bank to directly enforce such warranties (such warranties shall
include, without charge to Bank, the repair of any portion of the Building that may be
damaged as a result of the removal or replacement of the defective Work). If at any time
any of Licensee’s Agents unreasonably interferes with the use of the Building, or
performs any work which may or does impair the quality, integrity or performance of any
portion of the Building, including any building sys tems, Licensee shall cause such
subcontractor, laborer, materialman or supplier to leave the Building and remove all
tools, equipment and materials immediately upon written notice delivered to Licensee,
and Licensee shall reimburse Bank for all costs, expenses, losses or damages incurred or
suffered by Bank resulting from the acts or omissions of Licensee’s Agents in or about
the Building.
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Licensee shall keep the Building free from any liens arising out of(c)
work performed, materials furnished or obligations incurred by Licensee, Should
Licensee fail to remove any such lien within thirty (30) days after notice to do so from
Bank, Bank may, in addition to any other remedies, record a bond pursuant to California
Civil Code Section 3143 and all costs and obligations incurred by Bank in so doing shall
immediately become due and payable by Licensee to Bank upon demand. Bank shall have
the right to post and keep posted on or about the Building any notices that may be
required or permitted by applicable laws, or which Bank may deem to be proper, for the
protection of Bank and the Building from such liens. Promptly following completion of
construction, Licensee shall provide Bank a copy of a final unconditional lien release
from the Contractor and each of Licensee’s Agents who performed work or supplied
materials for the Work. Upon completion of construction, Licensee shall promptly record
a Notice of Completion in accordance with California Civil Code Section 3093 and
provide a copy thereof to Bank.
Completion: Corrective Work. For purposes of this Agreement,“completion” of2.4
the Work shall be defined as the date on which Bank receives a certified statement from
Licensee’s architect that the Work has been completed in accordance with the approved
drawings, calculations and designs and in compliance with all applicable laws. Without limiting
any other remedy of Bank hereunder, if the Building is damaged by any acts or conduct of
Licensee or its agents or employees or any of Licensee’s Agents, Licensee, at its sole cost and
expense, shall repair such damage and restore the Building to at least the Building’s original
condition; provided, however, any such corrective work shall be performed by contractors,
engineers and other design professionals acceptable to Bank, at times and on other terms
acceptable to Bank, and shall be undertaken in a manner that minimizes interference with Bank’s
use and enjoyment of the Building and Bank’s Parcel.
Access to Bank’s Parcel and the Building. Licensee shall not obstruct access to2.5
Bank’s Parcel or the Building or interfere with the use and enjoyment of Bank’s Parcel or the
Building in performing work under the License or the Work. The means and location of access
and periodic entries by Licensee and Licensee’s Agents onto Bank’s Parcel and into the Building
shall be subject to Bank’s approval and control. Prior to commencing any work on the Project or
the Work, the Contractor shall provide to Bank a detailed plan setting forth the means, location
and timing of access, and Licensee’s dust, debris and security control procedures during
construction of the Work (“Access Coordination Plan”). Licensee shall not commence any work
on the Project or the Work unless and until Licensee has approved Licensee’s Access
Coordination Plan. During construction of the Work, Licensee and Licensee’s Agents shall only
enter upon the Bank Parcel at times and in a manner consistent with the approved Access
Coordination Plan, except as otherwise approved by Bank in advance or as necessary in the case
of an emergency. In addition, Licensee shall not place or permit any materials, supplies or
equipment on Bank’s Parcel without the prior written consent and approval of Bank.
Structural Integrity of the Building. Licensee’s contractor shall agree that it will2.6
not, through its or its subcontractors’ performance of the Work, diminish the structural integrity
of the Building or Bank’s Parcel. Licensee shall require that its contractor perform the Work in a
manner that will prevent vibration, jarring or shaking of the Building.
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ARTICLE III
COSTS AND EXPENSES
Cost of Work. Licensee shall perform the Work and its obligations under this3.1
Agreement at no cost to Bank. Construction of the Work is anticipated to cost a maximum of
Two Hundred Thousand Dollars ($200,000.00). Before the commencement of any work under
this Agreement, Licensee shall submit to Bank a reasonably detailed budget for the Work (the
“Budget”) showing that the Work will be performed for a maximum of Two Hundred Thousand
Dollars ($200,000.00). Notwithstanding the Budget, (i) if the Work and Licensee’s obligations
under this Agreement cost less than Two Hundred Thousand Dollars ($200,000.00), the
difference shall be paid to Bank by Licensee, and (ii) if cost of the Work and Licensee’s
obligations under this Agreement exceed the Budget, any such excess cost shall be the sole
responsibility of Licensee. No later than the completion of the Work, Licensee shall submit to
Bank evidence of its expenditures, accompanied by reasonable supporting documentation.
Licensee’s Payment of Bank’s Expenses. Licensee shall pay to Bank all actual3.2
and reasonable fees and costs incurred by Bank in reviewing Licensee’s design of the Work,
coordinating the performance of the Work or otherwise in connection with this Agreement, up to
a maximum of Ten Thousand Dollars ($10,000.00). Such fees and costs of Bank shall not be
included in the Budget nor within the Two Hundred Thousand Dollar ($200,000.00) maximum
cost of the Work.
Invoices. Bank shall submit invoices to Licensee for fees and costs incurred in3.3
connection with this Agreement. Payment of each such invoice will be made promptly after
receipt by Licensee, but in no event later than thirty (30) days after the last day of the month in
which receipt by Licensee of Bank’s invoice occurs. This provision is not intended to be for the
benefit of any third party, and no other party shall have any rights or remedies hereunder.
Interest. Interest shall be paid by Licensee to Bank on any late payments from the3.4
date due until paid at a rate per annum of twelve percent (12%).
ARTICLE IV
INSURANCE
Licensee shall obtain and maintain, or cause Licensee’s Agents to obtain and maintain,
for all the work to be performed under the License and for the construction of the Work, the
insurance coverage described in Exhibit D attached hereto and by this reference incorporated
herein (the “Coverage”). Bank and any mortgagee of the Building shall be named as additional
insured parties on the policies providing for such Coverage. Licensee shall maintain the required
Coverage to the extent that the Contractor and subcontractors (if applicable), fail to maintain the
required Coverage. Licensee shall provide Bank with insurance certificates or other satisfactory
evidence of such insurance Coverage prior to any entry onto Bank’s Parcel.
If at any time Licensee fails to maintain any policy of insurance required under this
Agreement, Bank may, but shall not be obligated to, obtain such insurance for the benefit of
Bank. Licensee shall promptly reimburse Bank for the cost of obtaining such insurance together
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with interest thereon at the rate of twelve percent (12%) per annum from the date Bank incurs
such cost until paid by Licensee.
ARTICLE V
INDEMNITY
Licensee, at its sole cost and expense, hereby agrees to indemnify, protect, hold harmless
and defend (with counsel acceptable to Bank) Bank and its officers, directors, members,
associates, employees, lessees, sublessees, agents and secured lenders (“Indemnitees”) from and
against any and all liability, claims, liens, loss, demands, damages (including consequential
damages), costs, attorneys’ fees and other expenses (collectively,“Claims”) whatsoever,
including, but not limited to, injury to or death of persons or damage to property, directly or
indirectly caused by the acts or omissions of Licensee, its employees, officers, agents, contractors
or subcontractors arising out of or in connection with the design, installation or construction by
or on behalf of Licensee, of the Work or any other work performed by or on behalf of Licensee
under this Agreement, including, but not limited to, any expenses paid or liabilities incurred by
Indemnitees in settlement of and expenses paid or incurred in connection with any such Claims,
in procuring or attempting to procure releases from liability or in recovering or attempting to
recover such costs, losses, attorneys’ fees or expenses as aforesaid.
The indemnification provisions above in this Article V shall extend to Claims occurring
after this Agreement is terminated as well as while it is in force. Such indemnity provisions apply
regardless of any active and/or passive negligent act or omission of Indemnitees; provided,
however, Licensee shall not be obligated under this Agreement to indemnify Indemnitees for
Claims to the extent arising from the gross negligence or willful misconduct of Indemnitees.
The rights of Indemnitees and obligations of Licensee set forth in this Article V shall not
be limited by the insurance requirements and/or coverage amounts for any such insurance
policies set forth in this Agreement.
ARTICLE VI
COMPLIANCE WITH LAWS
Licensee shall, and shall require its contractors, employees and agents to, comply with all
applicable laws, rules and regulations of all governmental agencies having jurisdiction over the
Work. Prior to the performance by Licensee of any work on, over or under Bank’s Parcel,
Licensee shall obtain and deliver to Bank, copies of all permits and approvals required by
applicable governmental jurisdictions to commence and perform the work on any item of Work.
ARTICLE VII
DEFAULT AND REMEDIES
Default. Licensee will be in default hereunder if Licensee fails to perform or7.1
comply with any covenant, agreement or condition contained in this Agreement and does not
cure that failure within the period of two (2) business days (except in the case of an emergency)
after receipt of a written notice of default from Bank (or if such default is of a nature which
cannot reasonably be cured within two (2) business days, then Licensee does not cure such failure
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within such longer period of time, but not exceeding thirty (30) days, as is reasonably required to
cure such default, provided that Licensee undertakes in good faith to commence such cure within
two (2) business days after receipt of a written notice of default and diligently prosecutes such
cure to completion).
Remedies. If Licensee is in default hereunder, Bank may terminate this7.2
Agreement, effective immediately upon delivery of notice to Licensee of such termination, and
may exercise any right or remedy which it may have under this Agreement or otherwise available
at law or in equity or by statute. All rights and remedies of Bank hereunder shall be cumulative
and non-exclusive and shall survive the expiration or termination of this Agreement, subject to
applicable statutes of limitation.
ARTICLE VIII
SECURITY FOR PERFORMANCE
On or before the commencement of the Work, Licensee at its sole cost and expense, shall
furnish Bank a completion guarantee from Licensee’s parent entity in the comparable form as is
provided to Licensee’s lender, which guarantees the lien-free completion of the Work. If
Licensee is not Azusa Block 36, LLC or a related or affiliated entity, then such parent guarantor
shall have a net worth reasonably satisfactory to Bank.
ARTICLE IX
MISCELLANEOUS
Entire Agreement. This Agreement sets forth the entire agreement between the9.1
parties hereto relating to the rights herein granted and the obligations herein assumed. Any oral
representations or modifications concerning this Agreement shall be of no force or effect. Any
modification or amendment hereof must be in writing and signed by the parties hereto.
Attorneys’ Fees. In any lawsuit, action, arbitration, quasi-judicial proceeding,9.2
administrative proceeding, or any other proceeding brought by either party to enforce any of such
party’s rights or remedies under this Agreement, and/or any covenant therein, including any
action or proceeding for damages, declaratory relief or breach of contract, the prevailing party
shall be entitled to reasonable attorneys’ fees and all costs, expenses and disbursements in
connection with such action or proceeding, including, but not limited to, all costs of reasonable
investigation, and all costs associated with expert witnesses and expert consultation, which sums
may be included in any judgment or decree entered in such action in favor of the prevailing party.
In addition, Licensee shall pay all attorneys’ fees and other fees and costs, including, but not
limited to, investigative costs and expert witness and consultant fees and costs, that Bank incurs
in enforcing this Agreement and/or any covenant therein where an action or proceeding is not
brought. Licensee also shall pay all attorneys’ fees and other fees and costs, including, but not
limited to, investigative costs and expert witness and consultant fees and costs, that Bank incurs
in enforcing, defending, or interpreting this Agreement, or otherwise protecting Bank’s rights
under this Agreement, in any voluntary or involuntary bankruptcy case, assignment for the
benefit of creditors, or other insolvency, liquidation, or reorganization proceeding involving
Licensee or this Agreement, including, but not limited to, all motions and proceedings regarding
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or related to relief from the automatic stay, assumption or rejection and/or extensions of time
related thereto, claim objections and disclosure statements and plans of reorganization.
Governing Law; Judicial Reference. This Agreement is executed in the State of9.3
California and the laws of the State of California shall govern its interpretation and effect. Bank
and Licensee agree that, other than any action which seeks relief which can only be obtained by
court proceeding, any action or proceeding by either of them against the other arising out of or in
connection with this Agreement, the License, or any claim of injury or damage occurring in or
about Licensee’s Parcel or Bank’s Parcel shall, upon the motion of either party, be submitted to
general judicial reference pursuant to California Code of Civil Procedure Sections 638 et seq. or
any successor statutes thereto. The parties shall cooperate in good faith to ensure that all
necessary and appropriate parties are included in the judicial reference proceeding. The general
referee shall have the authority to try all issues, whether of fact or law, and to report a statement
of decision to the court. Bank and Licensee shall use the procedures adopted by Judicial
Arbitration and Mediation Services/Endispute (“JAMS”) for judicial reference (or any other
entity offering judicial reference dispute resolution procedures as may be mutually acceptable to
the parties), provided that the following rules and procedures shall apply in all cases unless the
parties agree otherwise:
The proceedings shall be heard in the County of Los Angeles,(a)
California;
The referee must be a retired judge or a licensed attorney with(b)
substantial experience in relevant real estate matters;
Any dispute regarding the selection of the referee shall be resolved(c)
by JAMS or the entity providing the reference services, or, if no entity is involved, by the
court with appropriate jurisdiction;
The referee may require one or more pre-hearing conferences;(d)
The parties shall be entitled to discovery, and the referee shall(e)
oversee discovery and may enforce all discovery orders in the same manner as any trial
court judge;
A stenographic record of the trial shall be made, provided that the(f)
record shall remain confidential except as may be necessary for post- hearing motions and
any appeals;
The referee’s statement of decision shall contain findings of fact(g)
and conclusions of law to the extent applicable; and
The referee shall have the authority to rule on all post- hearing(h)
motions in the same manner as a trial judge.
The statement of decision of the referee upon all of the issues considered by the referee
shall be binding upon the parties, and upon filing of the statement of decision with the clerk of
the court, or with the judge where there is no clerk, judgment may be entered thereon. The
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decision of the referee shall be appealable as if rendered by the court. This provision shall in no
way be construed to limit any valid cause of action which may be brought by any of the parties.
BY INITIALING BELOW, THE PARTIES ACKNOWLEDGE THAT THEY HAVE
READ AND UNDERSTAND THE FOREGOING AND ACCEPT THAT BY CHOOSING
JUDICIAL REFERENCE THEY ARE GIVING UP THE RIGHT TO A JURY TRIAL.
Bank’s Initials _____________Licensee’s Initials _____________
IN ADDITION, IN ANY ACTION OR PROCEEDING ARISING HEREFROM, BANK
AND LICENSEE HEREBY CONSENT TO (I) SUBJECT TO THE FOREGOING
PROVISIONS OF THIS SECTION 9.3, THE JURISDICTION OF ANY COMPETENT COURT
WITHIN THE STATE OF CALIFORNIA, AND (II) SERVICE OF PROCESS BY ANY
MEANS AUTHORIZED BY CALIFORNIA LAW. THE PROVISIONS OF THIS SECTION 9.3
SHALL SURVIVE THE EXPIRATION OF THE TERM OF THE LICENSE OR EARLIER
TERMINATION OF THIS AGREEMENT.
Limitation on Liability. Bank’s liability under this Agreement is limited solely9.4
and exclusively to an amount which is equal to the lesser of (a) the interest of Bank in Bank’s
Parcel or (b) the equity interest that Bank would have in Bank’s Parcel if Bank’s Parcel were
encumbered by third-party debt in an amount equal to eighty percent (80%) of the value thereof.
In no event shall Bank’s liability extend to any other property or assets of Bank, nor shall any
officer, director, employee, agent, shareholder, partner, member or beneficiary of Bank be
personally liable for any of Bank’s obligations hereunder. Further, in no event shall Bank be
liable under any circumstances for any consequential damages or for injury or damage to, or
interference with, the business of Licensee, including but not limited to, loss of profits, loss of
rents or other revenues, loss of business opportunity, loss of goodwill, or loss of use, however
occurring.
Severability. If any term, provision, covenant, agreement or condition of this9.5
Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of this Agreement shall remain in full force and effect and shall not be affected,
impaired or invalidated.
Notices. Without limiting any of Licensee’s other obligations under this9.6
Agreement, Licensee shall give Bank at least five (5) business days written notice prior to
Licensee’s first entry onto Bank’s Parcel or into the Building, unless Licensee’s entry is required
in the case of an emergency.
All notices, demands and requests (collectively,“notice”) required or permitted to be
given under this Agreement must be in writing and shall be deemed to have been given as of the
date such notice is (i) delivered to the party intended, (ii) delivered to the then designated address
of the party intended, (iii) refused at the then designated address of the party intended, provided
such notice was sent prepaid, or (iv) if sent by nationally recognized overnight courier with
delivery instructions for “next business day” service, or by United States certified mail, return
receipt requested, postage prepaid and addressed to the then designated address of the party
intended, on the day the notice is delivered or refused as shown by the records of such courier or
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as noted on the return receipt (or if no date is noted on the return receipt, the postmark of such
return receipt). The initial addresses of the parties shall be:
Bank:Bank of America, National Association
Mail Code: NC2-150-03-06
13850 Ballantyne Corporate Place
Charlotte, North Carolina 28277
Attn: CA7-115
with copies to:Bank of America, National Association
2505 W. Chandler Blvd.
AZ1-805-01-30
Chandler, AZ 85224
Attn: Leslie O'Brien, Vice President – Sr. Business
Control Specialist
Bank of America, National Association
214 N. Tryon Street
Mail Code: NC1-027-18-05
Charlotte, NC 28255
Attention: Thomas BissettBissette
Katten Muchin Rosenman LLP
550 S. Tryon Street, Suite 2900
Charlotte, NC 28202
Attention: Jennifer A. Dunbar
If to Licensee:Azusa Block 36, LLC
_______________________________
_______________________________
_______________________________
Attn:
Any party may change its address for receipt of notice by a written notice given in
accordance with the foregoing provision.
No Waiver. Any waiver of the provisions of this Agreement must be in writing9.7
and signed by an authorized representative of the waiving party. A failure by any party to enforce
any of its rights under this Agreement shall not be deemed to be a waiver of its right to enforce
the same or any other term, condition or covenant of this Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which9.8
shall be deemed an original.
Captions for Convenience; Construction. The paragraph and section headings9.9
herein are for convenience only and shall not in any way affect the meaning or interpretation of
this Agreement. This Agreement shall be given a fair and reasonable construction in accordance
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with the intention of the parties hereto and without regard to or aid of legal principles requiring
construction against the party responsible for the drafting of the same.
Successors and Assigns. This Agreement and each of its terms and provisions9.10
shall be binding upon and shall inure to the benefit of the parties hereto and, except as otherwise
provided herein, their respective heirs, representatives, successors and assigns. Notwithstanding
the foregoing, Licensee may not assign, transfer or convey its rights or obligations under this
Agreement at any time without the prior written consent of Bank, which Bank may withhold in
its sole discretion.
All Work at the Sole Expense of Licensee and Diligently Prosecuted. All work,9.11
labor and materials furnished or installed by Licensee under any of the terms or conditions of this
Agreement, shall be at the sole cost and expense of Licensee, and once commenced, shall be
properly, timely and diligently prosecuted to completion by Licensee. Time is the essence of this
Agreement.
Bank’s Designated Agent. Licensee shall designate an agent or representative of9.12
Licensee located in Southern California who will be on 24-hour call in cases of emergency.
Licensee shall, before the execution hereof, inform Bank of the full name, address and business,
mobile and residence phone numbers of such designated agent or representative. Such agent or
representative may be replaced by Licensee upon giving Bank 48-hours written notice of the full
name, address and business, mobile and residence phone numbers of the replacing agent or
representative.
Copies of this Agreement to Be Furnished to Contractors. Copies of this9.13
Agreement shall be promptly furnished to Licensee’s Agents. Each of Licensee’s Agents shall
each promptly sign a written agreement in the form attached hereto as Exhibit E, acknowledging
the receipt of a copy of this Agreement and agreeing to be bound to all of the provisions of this
Agreement pertaining to the entry on Bank’s Parcel and to the giving of notices of any such
intended entry. A copy of each such agreement shall be furnished by Licensee to Bank before any
of Licensee’s Agents enters on to the Bank’s Parcel.
Bank’s Right to Cure. If Licensee fails to perform any obligations under this9.14
Agreement and fails to cure such failure after any applicable notice and/or cure period as set forth
in this Agreement, Bank may cure any such failure on Licensee’s behalf; provided, however, that
in the event of an emergency, Bank may cure any such failure immediately without regard to any
time periods set forth in this Agreement. Any expenses reasonably incurred by Bank in
connection with such corrective actions shall be immediately due from Licensee on demand by
Bank.
No Option. The submission of this Agreement to Licensee for review or9.15
execution does not create an option or constitute an offer to Licensee on the terms and conditions
contained herein, and this Agreement shall not become effective unless and until it has been
executed and delivered by both Bank and Licensee.
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No Third Party Beneficiaries. Notwithstanding any provision of this Agreement9.16
to the contrary, no provision of this Agreement shall create, or be deemed to create, any third
party beneficiary(s) hereof.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set
forth above.
BANK:
Bank of America, National Association,
a national banking association
By:
Print Name: Leslie O’Brien
Its: Vice President – Sr. Business Control Specialist
LICENSEE:
Azusa Block 36, LLC,
a California limited liability company
By:
Print Name:
Its:
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STATE OF ________________)
)ss.
COUNTY OF ______________)
On ________________, 20___ before me, _____________________________, a Notary Public,
personally appeared Leslie O’Brien, Vice President – Sr. Business Control Specialist, Bank of
America, National Association, a national banking association , 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.
WITNESS my hand and official seal.
______________________________
Signature of Notary Public
[Notary seal]
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STATE OF ________________)
)ss.
COUNTY OF ______________)
On ________________, 20___ before me, _____________________________, a Notary Public,
personally appeared ______________________________, ________________________ of
Azusa Block 36, LLC, a California limited liability company , 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.
WITNESS my hand and official seal.
______________________________
Signature of Notary Public
[Notary seal]
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EXHIBIT A
LEGAL DESCRIPTION OF BANK’S PARCEL
[TO BE ATTACHED]
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EXHIBIT B
LEGAL DESCRIPTION OF LICENSEE’S PARCEL
[TO BE ATTACHED]
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EXHIBIT C
FACADE ELEVATION AND WORK REQUIREMENTS
[TO BE ATTACHED]
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EXHIBIT D
INSURANCE REQUIREMENTS
Before commencement of the Work or any entry by Licensee or any of Licensee’s Agents
upon the Bank Parcel, Licensee shall at its own expense secure and maintain, and shall require
Licensee’s Agents to secure and maintain, throughout the term of this Agreement, the following
insurance with companies qualified to do business in the jurisdiction in which the Work will be
performed and rating A-VII or better in the current Best’s Insurance Reports published by A.M.
Best Company and shall, within thirty (30) calendar days after the date of this Agreement and
before commencing work, furnish to Bank of America, National Association, a national banking
association (the “Bank”) certificates and required endorsements evidencing such insurance. Bank
shall be named as an “Additional Insured” to the coverages required below. The certificates shall
state the amount of all deductibles and shall contain evidence that the policy or policies shall not
be canceled or materially altered without at least thirty (30) calendar days’ prior written notice to
Bank. The insurance coverages and limits required to be maintained by Licensee and Licensee’s
Agents shall be primary to insurance coverage, if any, maintained by Bank. Licensee and
Licensee’s Agents and their underwriters shall waive subrogation against Bank.
Workers’ compensation as required by any applicable law or regulation.(i)
Commercial General Liability insurance covering all operations by or on(ii)
behalf of the contractor, which shall include the coverages for Premises
and Operations, Products and Completed Operations, Contractual
Liability, insuring the indemnity obligations assumed by contractor under
the contract documents, Broad Form Property Damage (including
Completed Operations), Explosion, Collapse and Underground Hazards,
and Personal Injury Liability, in amounts not less than:
$1,000,000 each occurrence (for bodily injury and property(a)
damage).
$1,000,000 for Personal Injury Liability.(b)
$2,000,000 aggregate for Products and Completed Operations for a(c)
period of at least four (4) years following completion of the Work.
$2,000,000 general aggregate applying separately to this project.(d)
Automobile liability insurance including coverage for owned, hired and(iii)
non-owned automobiles. The limits of liability shall not be less than
$1,000,000 combined single limit each accident for bodily injury and
property damage. The contractor shall require each of his subcontractors to
include in their liability insurance policies coverage for automobile
contractual liability.
The contractor and subcontractor shall also carry umbrella/excess liability(iv)
insurance with a single limit of liability of Two Million Dollars
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($2,000,000.00) and an aggregate of Two Million Dollars ($2,000,000.00).
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EXHIBIT E
NOTICE AND ENTRY AGREEMENT
The undersigned acknowledges receipt of that certain License Agreement (“Agreement”)
dated _____________________, 20__, by and between Azusa Block 36, LLC, a California
limited liability company (“Licensee”), and Bank of America, National Association, a national
banking association (“Bank”). The undersigned understands and agrees to be bound by the
insurance, indemnity and all other provisions and notice requirements in the Agreement
pertaining to any entry by Licensee on the property owned by Bank (“Bank’s Parcel”) or entry
into the building located on Bank’s Parcel.
Dated: ___________, 20___[Contractor or Subcontractor]
By:
Its:
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Exhibit E
to Amended and Restated Parking Easement Agreement
FORM OF LICENSE AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL
TO:
Bank of America, National Association
214 N. Tryon Street
Mail Code: NC1-027-18-05
Charlotte, NC 28255
Attention: Thomas Bissette
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (“Agreement”) is made this _______________ day of
___________________ 20__, by and between BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking association, successor by merger to Bank of America
National Trust and Savings Association (“Licensor”) and AZUSA BLOCK 36, LLC, a California
limited liability company (“Licensee”).
WHEREAS, Licensor owns that certain building located at 152 East Foothill Boulevard
Azusa, California (“Building”), which is located on the real property owned by Licensor, more
particularly described on Exhibit “A” attached hereto (“Licensor’s Parcel”);
WHEREAS, Licensee intends to construct certain improvements (“Project”) on
Licensee’s real property located immediately adjacent to Licensor’s Parcel and more particularly
described on Exhibit “B” attached hereto (“Licensee’s Parcel”);
WHEREAS, the development of the Project involves excavation that will necessitate the
construction and installation of sys tems to provide lateral and subjacent support to the Building
and Licensor’s Parcel;
WHEREAS, the scope of work (“Scope of Work”) to be performed by Licensee under
this Agreement on Licensor’s Parcel may include the following: (i) constructing and installing
tiebacks under Licensor’s Parcel in the locations depicted on Schedule “1” attached hereto; (ii)
constructing and installing such other shoring and supporting systems as may be necessary to
fully support and protect Licensor’s Parcel and the Building and as required by subparagraph 4 of
Section 832 of the California Civil Code; and (iii) monitoring and inspecting any settlement or
movement of the Building prior to, during and after the construction and installation of the
tiebacks, shoring, and other supporting systems and completion of the Project; and
WHEREAS, Licensor is willing to grant Licensee a license to enter upon, over, under,
across, and through (as applicable) Licensor’s Parcel for the purpose of performing the Scope of
Work, on the terms set forth herein.
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NOW, THEREFORE, in consideration of the covenants herein contained, Licensor and
Licensee hereby agree as follows:
ARTICLE I
SUPPORT SYSTEM LICENSE
Grant of Support Sys tem License. Subject to the terms and conditions of this1.1
Agreement, Licensor hereby grants to Licensee, its contractors, agents, successors and assigns, a
license (“Support Sys tem License”) to enter periodically upon Licensor’s Parcel for the purpose
of: (i) constructing, installing, using, repairing, modifying, and maintaining any tieback system
and any and all other shoring and supporting systems (collectively, the “Support System”) as may
be necessary to fully support and protect Licensor’s Parcel and the Building during excavation
and construction associated with the Project, and as required by subparagraph 4 of Section 832 of
the California Civil Code; and (ii) monitoring and inspecting any settlement or movement of the
Building prior to, during and after the construction and installation of the Support System and
completion of the Project.
Expiration and Termination of Support Sys tem License. The term of this1.2
Agreement and the Support System License granted hereby shall commence upon the date hereof
and shall expire upon the completion of construction by Licensee of the Project, unless earlier
terminated by Licensor pursuant to Section 7.2 of this Agreement. Upon the expiration or earlier
termination of this Agreement, the following shall apply.
If no work has been performed on the Support System and no(a)
materials, supplies or equipment have been moved onto the Licensor’s Parcel, then the
expiration or earlier termination of this Agreement shall be without any further obligation
of either party hereto, other than as provided in Articles II and III hereof.
If some or all of the work on the Support Sys tem has been(b)
performed and/or some or all materials, supplies, equipment or supporting sys tems have
been placed on Licensor’s Parcel, then Licensee shall immediately remove all such
materials, supplies and equipment and, to the extent possible, all Licensee-constructed
supporting systems or components thereof from Licensor’s Parcel (other than the tiebacks
and components thereof), in a manner that is safe and compatible with the uninterrupted
operations of Licensor and the use and enjoyment of the Building. In such event, Licensee
shall restore Licensee’s Parcel in accordance with any applicable building code(s) in
order to adequately support Licensor’s Parcel and the Building.
Notwithstanding anything herein to the contrary, the Support Sys tem License and the
rights and obligations of the parties hereunder shall remain effective after completion of the
Project for the limited purpose of permitting Licensee to perform the monitoring and inspections
required by this Agreement under Section 1.4, below.
Approval of Drawings and Information. Prior to commencing construction of the1.3
Support Sys tem, Licensee shall submit to Licensor a complete set of fully detailed drawings and
design calculations for the Support Sys tem and any other supporting and shoring sys tems for the
construction of the Project, in accordance with Section 1.5, below. Licensee shall not commence
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any work, including, but not limited to, the Scope of Work, on or under Licensee’s Parcel unless
and until Licensor has approved such drawings and calculations. Thereafter, no material
deviations or modifications of such work shall be permitted or performed until fully detailed
drawings and design calculations of all such deviations and modifications have first been
approved in writing by Licensor. It is specifically agreed that any approval by Licensor of such
drawings and information provided by Licensee is for the purpose of determining whether the
Support System and activities relating thereto will interfere with the Building, access to and use
of the Building and Licensor’s Parcel, and the day-to-day operations of Licensor and not for
determining the adequacy of the structural integrity of the Building or the Support Sys tem or the
supporting or shoring sys tems for the Project. Licensee shall have the full, complete and
exclusive responsibility for the design, construction and installation of the Project, the supporting
and shoring systems thereof and the Support System in all respects, including, but not limited to,
compliance with subparagraph 4 of Section 832 of the California Civil Code and all other laws,
regulations, rules and industry standards, and for the support, integrity and safety of the Building
and Licensor’s Parcel to the extent affected or impacted by the construction of the Project, the
shoring and supporting systems thereof, the Scope of Work or the Support System.
Movement Monitoring Program and Corrective Work. The Support System shall1.4
be designed and constructed to prevent the movement and/or settlement of the Building,
including, but not limited to, the existing footings and foundations thereof, and to assure the
structural support, integrity and safety of the Building. Prior to the commencement of
construction of the Support System, Licensee shall have prepared pre-condition surveys and
photographs and shall have installed an appropriate number of properly located movement and
settlement reading points, to be approved in writing by Licensor, in and adjacent to the Building
in order to fully evaluate the condition of the Building prior to and during construction of the
Support System and the Project and for a two-year period thereafter. For the purposes of this
Agreement,“completion” of the Project shall be defined as the date on which Licensee receives a
Temporary Certificate of Occupancy (or its equivalent, as appropriate) for the shell and core of
the Project. During the construction of the Support System and Project, Licensee shall, at least
once a month, conduct inspections on Licensor’s Parcel and within the Building and take
settlement readings (horizontal and vertical) to monitor any movement or settlement and the
condition of the Building, including, but not limited to, the footings and foundations thereof. In
addition, one such inspection and readings shall be taken at the completion of the construction of
the Project, one inspection and readings a year thereafter, and one inspection and readings two
years after such completion. All such surveys, installations, inspections and readings shall be
performed by a California licensed civil engineer or land surveyor approved in advance in writing
by Licensor. The findings of all such inspections, surveys and readings shall be in writing and
copies thereof shall be furnished to Licensor within fifteen (15) business days after the making
and taking of such inspections and readings. Without limiting any other remedy of Licensor
hereunder, if the Building is damaged by the construction of the Support System or the Project or
by any acts or conduct of Licensee or its agents, employees or contractors, Licensee, at its sole
cost and expense, shall repair such damage and restore the Building to at least the Building’s
original condition; provided, however, any such corrective work shall be performed by
contractors, engineers and other design professionals acceptable to Licensor, at times and on
other terms acceptable to Licensor, and shall be undertaken in a manner that minimizes
interference with Licensor’s use and enjoyment of the Building and Licensor Parcel.
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Design; Permits; Mechanics’ Liens. In order to assure the structural support and1.5
integrity and the continued and uninterrupted operation and use of the Building during the
construction period, Licensee shall take a conservative approach to the design of the Support
System, and Licensee shall cause all drawings, calculations and designs thereof: (i) to be signed
by a licensed California structural engineer approved in advance in writing by Licensor; (ii) to
comply with all applicable state and local law, and (iii) to be approved by any governmental
agency having authority over the Scope of Work, to the extent required by law. Licensee shall be
responsible for obtaining and paying for all building permits required for the Support Sys tem,
and for supplying unconditional releases of any mechanics’ liens upon the Licensor’s Parcel.
Contingency Plan; Internal Bracing. The design of the Support System shall1.6
include a contingency plan that shall involve a sys tem of internal bracing within the excavation
on Licensee’s Parcel (“Contingency Plan”). Licensee shall implement the Contingency Plan
immediately in the event the construction of the Support Sys tem or the Project causes any
movement or settlement of the Building, including, but not limited to, the existing footings and
foundations thereof, which causes, has caused or could cause structural or architectural harm or
damage to the Building, including, but not limited to, the footings and foundations thereof.
Detensioning of Tiebacks. Unless otherwise directed to remove any tiebacks or1.7
any other portion of the Support System, any tiebacks installed on Licensor’s Parcel as part of the
Support Sys tem will be left in place by Licensee after the termination of the Support System
License. However, the tiebacks shall be detensioned upon the completion of the construction of
the Project by the Licensee. Legal title to the tiebacks and components thereof located under
Licensor’s Parcel shall pass to Licensor upon the termination of the Support System License.
Access to Licensor’s Parcel and the Building. Licensee shall not obstruct access1.8
to Licensor’s Parcel or the Building or interfere with the use and enjoyment of Licensor’s Parcel
or the Building in performing work under the Support System License or the Scope of Work. The
means and location of access and periodic entries by Licensee onto Licensor’s Parcel and into the
Building shall be subject to Licensor’s approval and control. Prior to commencing any work on
the Project or the Scope of Work, Licensee’s general contractor shall provide to Licensor a
detailed plan setting forth such means, location and timing of access, and Licensee’s dust, debris
and security control procedures during construction of the Support Sys tem and the Project
(“Access Coordination Plan”). Licensee shall not commence any work on the Project or the
Scope or Work unless and until Licensee has approved Licensee’s Access Coordination Plan.
During construction of the Support System and the Project, Licensee shall only enter upon the
Licensor Parcel at times and in a manner consistent with the approved Access Coordination Plan,
except as otherwise approved by Licensor in advance or as necessary in the case of an
emergency. In addition, Licensee shall place no materials, supplies or equipment on Licensor’s
Parcel without the prior written consent and approval of Licensor.
Structural Integrity of the Building. Licensee shall not, through its performance of1.9
the Scope of Work and construction of the Project, diminish the structural integrity or support of
the Building or Licensor’s Parcel in any way. The Support Sys tem shall be designed and
constructed to avoid any subsidence of or damage to any part of Licensor’s Parcel or the
Building, and to avoid cracking or misalignment of walls or subsidence of or damage to any
improvements on Licensor’s Parcel.
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Manner of Construction. Construction of the Support Sys tem and the Project1.10
shall be performed in a manner that will prevent vibration, jarring or shaking of the Building.
The parties acknowledge that there may occur minor vibration and/or shaking of the Building
associated with any augering operation on Licensee’s Parcel as provided in this Agreement. If
any unreasonable or excessive vibration and/or shaking of the Building does occur, Licensor
shall notify Licensee of such occurrence, and Licensee shall employ within twenty-four (24)
hours following Licensor’s notice, alternate construction methods, in order to prevent any
unreasonable or excessive vibration and/or shaking of the Building.
ARTICLE II
INTENTIONALLY DELETED
ARTICLE III
PLAN AND AGREEMENT REVIEW AND ACCESS ASSISTANCE
Licensee’s Payment of Licensor’s Expenses. Licensee shall pay to Licensor all3.1
actual and reasonable fees incurred by Licensor for all engineering and field work in reviewing
Licensee’s design, calculations, information, drawings and specifications for the Support System,
Scope of Work, and underground portion of the Project and Licensee’s performance of its
obligations under this Agreement, and in addition, for all actual and reasonable attorneys’ fees
incurred by Licensor in reviewing or advising on this Agreement, including Licensee’s
performance thereof.
Licensee shall pay to Licensor all actual and reasonable costs incurred by Licensor for
access and traffic assistance and control rendered by Licensor to Licensor’s management, tenants
and guests entering or exiting the Building, caused and made necessary by Licensee’s activities
on or adjacent to Licensor’s Parcel. Such access and traffic assistance and control shall include,
but shall not be limited to, the installation of necessary signs on Licensor’s Parcel and a sign on
Licensee’s barricades.
Invoices. Licensor shall submit invoices to Licensee for such fees, costs and work3.2
performed, containing the itemized cost of labor for access assistance, engineering, field and
legal work and a general description of the activities performed. Payment of each such invoice
will be made promptly after receipt by Licensee, but in no event later than thirty (30) days after
receipt by Licensee of Licensor’s invoice. This provision is not intended to be for the benefit of
any third party, and no other party shall have any rights or remedies hereunder.
Interest. Interest shall be paid by Licensee to Licensor on any late payments from3.3
the date due until paid at a rate per annum equal to the lesser of (a) the annual “Bank Prime
Loan” rate cited in the Federal Reserve Statistical Release Publication G.13(415), published on
the first Tuesday of each calendar month (or such other comparable index as Licensor and
Licensee shall reasonably agree upon if such rate ceases to be published) plus five (5) percentage
points, or (b) the highest rate permitted by applicable law (“Interest Rate”).
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ARTICLE IV
INSURANCE
Licensee shall obtain and maintain or cause its general contractor and all of its
subcontractors (if applicable), to obtain and maintain for all the work to be performed under the
Support System License and for the construction of the Support Sys tem and excavation for the
Project, the insurance coverage described in Exhibit “C” attached hereto and by this reference
incorporated herein (the “Coverage”). Licensor and any mortgagee of the Building shall be
named as additional insured parties on the policies providing for such Coverage. Licensee shall
maintain the required Coverage to the extent that its general contractor and subcontractors (if
applicable), fail to maintain the required Coverage. Said policies shall include completed
operations coverage for ten (10) years following completion of the Project and coverage for
Licensee’s contractual indemnity herein. Licensee shall provide Licensor with insurance
endorsements or other satisfactory evidence of such insurance Coverage.
If at any time Licensee fails to maintain any policy of insurance required under this
Agreement, Licensor may, but shall not be obligated to, obtain such insurance for the benefit of
Licensor. Licensee shall promptly reimburse Licensor for the cost of obtaining such insurance
together with interest thereon at the Interest Rate.
ARTICLE V
INDEMNITY
Licensee, at its sole cost and expense, hereby agrees to indemnify, protect, hold harmless
and defend (with counsel acceptable to Licensor) Licensor and its officers, directors, members,
associates, employees, lessees, sublessees, agents and secured lenders (“Indemnitees”) from and
against any and all liability, claims, liens, loss, demands, damages (including consequential
damages), costs, attorneys’ fees and other expenses (collectively,“Claims”) whatsoever,
including, but not limited to, injury to or death of persons or damage to property, directly or
indirectly caused by the acts or omissions of Licensee, its employees, officers, agents or
contractors arising out of or in connection with the design, installation or construction by or on
behalf of Licensee, of the Support System, the Project, the Scope of Work or any other work
performed by or on behalf of Licensee under this Agreement, including, but not limited to, any
expenses paid or liabilities incurred by Indemnitees in settlement of and expenses paid or
incurred in connection with any such Claims, in procuring or attempting to procure releases from
liability or in recovering or attempting to recover such costs, losses, attorneys’ fees or expenses
as aforesaid.
The indemnification provisions above in this Article V shall extend to Claims occurring
after this Agreement is terminated as well as while it is in force. Such indemnity provisions apply
regardless of any active and/or passive negligent act or omission of Indemnitees; provided,
however, Licensee shall not be obligated under this Agreement to indemnify Indemnitees for
Claims to the extent arising from the sole negligence or willful misconduct of Indemnitees.
The rights of Indemnitees and obligations of Licensee set forth in this Article V shall not
be limited by the insurance requirements and/or coverage amounts for any such insurance
policies set forth in this Agreement. In addition, Licensee hereby forever and unconditionally
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waives, relinquishes, discharges and releases the Indemnitees from any and all Claims incurred in
performance of the Scope of Work or any other work undertaken pursuant to this Agreement.
ARTICLE VI
COMPLIANCE WITH LAWS
Licensee and its contractors, employees and agents shall comply with all applicable laws,
rules and regulations of all governmental agencies having jurisdiction over the work referred to
in this Agreement. Prior to the performance by Licensee of any work on, over or under
Licensor’s Parcel, Licensee shall obtain and deliver to Licensor, copies of all permits and
approvals required by applicable governmental jurisdictions to commence and perform the work
on the Support System or any item within the Scope of Work.
ARTICLE VII
DEFAULT AND REMEDIES
Default. Licensee will be in default hereunder if Licensee fails to perform or7.1
comply with any covenant, agreement or condition contained in this Agreement and does not
cure that failure within the period of twenty-four (24) hours after receipt of a written notice of
default from Licensor (or if such default is of a nature which cannot reasonably be cured within
twenty-four (24) hours, then Licensee does not cure such failure within such longer period of
time, but not exceeding ninety (90) days, as is reasonably required to cure such default, provided
that Licensee undertakes in good faith to commence such cure within twenty-four (24) hours
after receipt of a written notice of default and diligently prosecutes such cure to completion).
Remedies. If Licensee is in default hereunder, Licensor may terminate this7.2
Agreement, effective immediately upon delivery of notice to Licensee of such termination, and
may exercise any right or remedy which it may have under this Agreement or otherwise available
at law or in equity or by statute. All rights and remedies of Licensor hereunder shall be
cumulative and non-exclusive and shall survive the expiration or termination of this Agreement,
subject to applicable statutes of limitation.
ARTICLE VIII
PERFORMANCE BOND
On or before the commencement of the Scope of Work, Licensee at its sole cost and
expense, shall furnish Licensor an at sight, standby documentary letter of credit or a corporate
surety bond in favor of Licensor, as obligee, in the amount of One Million Dollars
($1,000,000.00), to guarantee the faithful performance of all duties and obligations of Licensee
under this Agreement.
The corporate surety on said Bond shall be a company listed in the Federal Register of
Bonding Companies, and the amount of said Bond shall be within underwriting limits of such
company as listed in said Register.
If any surety upon any bond furnished in connection with this Agreement becomes
unacceptable to Licensor, or if any such surety fails to furnish reports as to its financial condition
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from time to time as requested by the Licensor, Licensee shall promptly furnish such additional
security as may be required from time to time to protect the interests of Licensor.
ARTICLE IX
MISCELLANEOUS
Entire Agreement. This Agreement sets forth the entire agreement between the9.1
parties hereto relating to the rights herein granted and the obligations herein assumed. Any oral
representations or modifications concerning this Agreement shall be of no force or effect. Any
modification or amendment hereof must be in writing and signed by the parties hereto.
Attorneys’ Fees. In any lawsuit, action, arbitration, quasi-judicial proceeding,9.2
administrative proceeding, or any other proceeding brought by either party to enforce any of such
party’s rights or remedies under this Agreement, and/or any covenant therein, including any
action or proceeding for damages, declaratory relief or breach of contract, the prevailing party
shall be entitled to reasonable attorneys’ fees and all costs, expenses and disbursements in
connection with such action or proceeding, including, but not limited to, all costs of reasonable
investigation, and all costs associated with expert witnesses and expert consultation, which sums
may be included in any judgment or decree entered in such action in favor of the prevailing party.
In addition, Licensee shall pay all attorneys’ fees and other fees and costs, including, but not
limited to, investigative costs and expert witness and consultant fees and costs, that Licensor
incurs in enforcing this Agreement and/or any covenant therein where an action or proceeding is
not brought. Licensee also shall pay all attorneys’ fees and other fees and costs, including, but not
limited to, investigative costs and expert witness and consultant fees and costs, that Licensor
incurs in enforcing, defending, or interpreting this Agreement, or otherwise protecting Licensor’s
rights under this Agreement, in any voluntary or involuntary bankruptcy case, assignment for the
benefit of creditors, or other insolvency, liquidation, or reorganization proceeding involving
Licensee or this Agreement, including, but not limited to, all motions and proceedings regarding
or related to relief from the automatic stay, assumption or rejection and/or extensions of time
related thereto, claim objections and disclosure statements and plans of reorganization.
Governing Law; Judicial Reference. This Agreement is executed in the State of9.3
California and the laws of said State shall govern its interpretation and effect. Licensor and
Licensee agree that, other than any action which seeks relief which can only be obtained by court
proceeding, any action or proceeding by either of them against the other arising out of or in
connection with this Agreement, the Support System License, or any claim of injury or damage
occurring in or about Licensee’s Parcel or Licensor’s Parcel shall, upon the motion of either
party, be submitted to general judicial reference pursuant to California Code of Civil Procedure
Sections 638 et seq. or any successor statutes thereto. The parties shall cooperate in good faith to
ensure that all necessary and appropriate parties are included in the judicial reference proceeding.
The general referee shall have the authority to try all issues, whether of fact or law, and to report
a statement of decision to the court. Licensor and Licensee shall use the procedures adopted by
Judicial Arbitration and Mediation Services/Endispute (“JAMS”) for judicial reference (or any
other entity offering judicial reference dispute resolution procedures as may be mutually
acceptable to the parties), provided that the following rules and procedures shall apply in all
cases unless the parties agree otherwise:
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The proceedings shall be heard in the County of Los Angeles,(a)
California;
The referee must be a retired judge or a licensed attorney with(b)
substantial experience in relevant real estate matters;
Any dispute regarding the selection of the referee shall be resolved(c)
by JAMS or the entity providing the reference services, or, if no entity is involved, by the
court with appropriate jurisdiction;
The referee may require one or more pre-hearing conferences;(d)
The parties shall be entitled to discovery, and the referee shall(e)
oversee discovery and may enforce all discovery orders in the same manner as any trial
court judge;
A stenographic record of the trial shall be made, provided that the(f)
record shall remain confidential except as may be necessary for post- hearing motions and
any appeals;
The referee’s statement of decision shall contain findings of fact(g)
and conclusions of law to the extent applicable; and
The referee shall have the authority to rule on all post-hearing(h)
motions in the same manner as a trial judge.
The statement of decision of the referee upon all of the issues considered by the referee
shall be binding upon the parties, and upon filing of the statement of decision with the clerk of
the court, or with the judge where there is no clerk, judgment may be entered thereon. The
decision of the referee shall be appealable as if rendered by the court. This provision shall in no
way be construed to limit any valid cause of action which may be brought by any of the parties.
BY INITIALING BELOW, THE PARTIES ACKNOWLEDGE THAT THEY HAVE
READ AND UNDERSTAND THE FOREGOING AND ACCEPT THAT BY CHOOSING
JUDICIAL REFERENCE THEY ARE GIVING UP THE RIGHT TO A JURY TRIAL.
Licensor’s Initials _____________Licensee’s Initials _____________
IN ADDITION, IN ANY ACTION OR PROCEEDING ARISING HEREFROM,
LICENSOR AND LIC ENSEE HEREBY CONSENT TO (I) SUBJECT TO THE FOREGOING
PROVISIONS OF THIS SECTION 9.3, THE JURISDICTION OF ANY COMPETENT COURT
WITHIN THE STATE OF CALIFORNIA, AND (II) SERVICE OF PROCESS BY ANY
MEANS AUTHORIZED BY CALIFORNIA LAW. THE PROVISIONS OF THIS SECTION 9.3
SHALL SURVIVE THE EXPIRATION OF THE TERM OF THE SUPPORT SYSTEM
LICENSE OR EARLIER TERMINATION OF THIS AGREEMENT.
Limitation on Liability. Licensor shall have no personal liability under this9.4
Agreement; its liability shall be limited solely and exclusively to an amount which is equal to the
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lesser of (a) the interest of Licensor in Licensor’s Parcel or (b) the equity interest that Licensor
would have in Licensor’s Parcel if Licensor’s Parcel were encumbered by third-party debt in an
amount equal to eighty percent (80%) of the value thereof. In no event shall Licensor’s liability
extend to any other property or assets of Licensor, nor shall any officer, director, employee,
agent, shareholder, partner, member or beneficiary of Licensor be personally liable for any of
Licensor’s obligations hereunder. Further, in no event shall Licensor be liable under any
circumstances for any consequential damages or for injury or damage to, or interference with, the
business of Licensee, including but not limited to, loss of profits, loss of rents or other revenues,
loss of business opportunity, loss of goodwill, or loss of use, however occurring.
Severability. If any term, provision, covenant, agreement or condition of this9.5
Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of this Agreement shall remain in full force and effect and shall not be affected,
impaired or invalidated.
Notices. Without limiting any of Licensee’s other obligations under this9.6
Agreement, Licensee shall give Licensor at least five (5) business days written notice prior to
Licensee’s first entry onto Licensor’s Parcel or into the Building, unless Licensee’s entry is
required in the case of an emergency.
Any notice, demand or other communication to any of the parties hereto shall be in
writing and shall be sent by United States Mail, first class, registered or certified mail, postage
prepaid, return receipt requested, or hand delivery and shall be effective upon receipt at the
address of the party to whom notice is sent, which are set forth below.
If to Licensor:Bank of America, National Association
Mail Code: NC2-150-03-06
13850 Ballantyne Corporate Place
Charlotte, North Carolina 28277
Attn: CA7-115
with copies to:Bank of America, National Association
2505 W. Chandler Blvd.
AZ1-805-01-30
Chandler, AZ 85224
Attn: Leslie O'Brien, Vice President – Sr. Business
Control Specialist
Bank of America, National Association
214 N. Tryon Street
Mail Code: NC1-027-18-05
Charlotte, NC 28255
Attention: Thomas Bissette
Katten Muchin Rosenman LLP
550 S. Tryon Street, Suite 2900
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135982281v34_386430-01729
Charlotte, NC 28202
Attention: Jennifer A. Dunbar
If to Licensee:AZUSA BLOCK 36, LLC
_____________________________
_____________________________
_____________________________
_____________________________
_____________________________
Any party may change its address for receipt of notice by a written notice given in
accordance with the foregoing provision.
No Waiver. Any waiver of the provisions of this Agreement must be in writing9.7
and signed by an authorized representative of the waiving party. A failure by any party to enforce
any of its rights under this Agreement shall not be deemed to be a waiver of its right to enforce
the same or any other term, condition or covenant of this Agreement.
Counterparts. This Agreement may be executed in counterparts, each of which9.8
shall be deemed an original.
Captions for Convenience: Construction. The paragraph and section headings9.9
herein are for convenience only and shall not in any way affect the meaning or interpretation of
this Agreement. This Agreement shall be given a fair and reasonable construction in accordance
with the intention of the parties hereto and without regard to or aid of legal principles requiring
construction against the party responsible for the drafting of the same.
Successors and Assigns. This Agreement and each of its terms and provisions9.10
shall be binding upon and shall inure to the benefit of the parties hereto and, except as otherwise
provided herein, their respective heirs, representatives, successors and assigns. Notwithstanding
the foregoing, Licensee may not assign, transfer or convey its rights or obligations under this
Agreement at any time without the prior written consent of Licensor, which Licensor may
withhold in its sole discretion.
All Work At The Sole Expense of Licensee and Diligently Prosecuted. All work,9.11
labor and materials furnished or installed by Licensee under any of the terms or conditions of this
Agreement, shall be at the sole cost and expense of Licensee, and once commenced, shall be
properly, timely and diligently prosecuted to completion by Licensee. Time is the essence of this
Agreement.
Licensor’s Designated Agent. Licensee shall designate an agent or representative9.12
of Licensee who will be on 24-hour call in cases of emergency. Licensee shall within ten (10)
calendar days of the execution hereof, inform Licensor of the full name, address and business and
residence phone numbers of such designated agent or representative. Such agent or representative
may be replaced by Licensee upon giving Licensor 48-hours written notice of the full name,
address and business and residence phone numbers of the replacing agent or representative.
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135982281v34_386430-01729
Copies of This Agreement To Be Furnished To Contractors. Copies of this9.13
Agreement shall be promptly furnished to Licensee’s general contractor and to all subcontractors
furnishing or performing any work, labor or materials in connection with this Agreement or any
of the Licensee’s obligations or duties under this Agreement. Such general contractor and
subcontractors shall each promptly sign a written agreement in the form attached hereto as
Exhibit “D”, acknowledging the receipt of a copy of this Agreement and agreeing to be bound to
all of the provisions of this Agreement pertaining to the entry on Licensor’s Parcel and to the
giving of notices of any such intended entry. A copy of each such agreement shall be furnished
by Licensee to Licensor within thirty (30) calendar days after the signing of each such agreement.
Required Notice. This Agreement and Licensee’s submittal to Licensor of the9.14
documents required by Paragraph 1.1 of this Agreement shall fulfill all Licensee’s obligations to
notify Licensor of the excavation on the Licensee’s Parcel in accordance with the provisions of
California Civil Code Section 832, and this Agreement is intended to comply with all the notice
requirements of such Section.
Licensor’s Plan Review. Notwithstanding any provision to the contrary contained9.15
herein, when Licensee delivers plans for Licensee’s Support System to Licensor for approval,
Licensor shall have fourteen (14) days from the day it receives such plans in which to respond to
Licensee, and if Licensor does not respond within such fourteen (14) day period, then such plans
shall be deemed approved; provided, however, that Licensor’s approval or deemed approval of
any plans for Licensee’s Support System shall not relieve Licensee from the responsibility for the
legal sufficiency and technical competency thereof, and shall in no way be deemed a
representation by Licensor that such plans comply with applicable laws, such compliance being
the sole responsibility of Licensee.
Licensor’s Right to Cure. If Licensee fails to perform any obligations under this9.16
Agreement and fails to cure such failure after any applicable notice and/or cure period as set forth
in this Agreement, Licensor may cure any such failure on Licensee’s behalf; provided, however,
that in the event of an emergency, Licensor may cure any such failure immediately without
regard to any time periods set forth in this Agreement. Any expenses reasonably incurred by
Licensor in connection with such corrective actions shall be immediately due from Licensee on
demand by Licensor.
No Option. The submission of this Agreement to Licensee for review or9.17
execution does not create an option or constitute an offer to Licensee on the terms and conditions
contained herein, and this Agreement shall not become effective unless and until it has been
executed and delivered by both Licensor and Licensee.
No Third Party Beneficiaries. Notwithstanding any provision of this Agreement9.18
to the contrary, no provision of this Agreement shall create, or be deemed to create, any third
party beneficiary(s) hereof.
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135982281v34_386430-01729
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set
forth above.
LICENSOR:
Bank of America, National Association,
a national banking association
By:
Print Name: Leslie O’Brien
Its: Vice President – Sr. Business Control Specialist
LICENSEE:
Azusa Block 36, LLC,
a California limited liability company
By:
Print Name:
Its:
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135982281v34_386430-01729
STATE OF ________________)
)ss.
COUNTY OF ______________)
On ________________, 20___ before me, _____________________________, a Notary Public,
personally appeared Leslie O’Brien, Vice President – Sr. Business Control Specialist, Bank of
America, National Association, a national banking association , 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.
WITNESS my hand and official seal.
______________________________
Signature of Notary Public
[Notary seal]
91
135982281v34_386430-01729
STATE OF ________________)
)ss.
COUNTY OF ______________)
On ________________, 20___ before me, _____________________________, a Notary Public,
personally appeared ______________________________, ________________________ of
Azusa Block 36, LLC, a California limited liability company , 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.
WITNESS my hand and official seal.
______________________________
Signature of Notary Public
[Notary seal]
92
135982281v34_386430-01729
EXHIBIT “A”
LEGAL DESCRIPTION OF LICENSOR’S PARCEL
[TO BE ATTACHED]
93
135982281v4_386430-01729
EXHIBIT “B”
LEGAL DESCRIPTION OF LICENSEE’S PARCEL
[TO BE ATTACHED]
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135982281v4_386430-01729
EXHIBIT “C”
INSURANCE REQUIREMENTS
Prior to commencement of the Scope of Work or any entry by Licensee upon the Licensor
Parcel, Licensee shall at its own expense secure and maintain, and shall require its
Subcontractors to secure and maintain, throughout the Term, the following insurance with
companies qualified to do business in the jurisdiction in which the Services will be performed
and rating A-VI’ or better in the current Best’s Insurance Reports published by A.M. Best
Company and shall, within thirty (30) calendar days of the Effective Date and prior to
commencing work, furnish to Bank of America certificates and required endorsements
evidencing such insurance. Bank of America shall be named as an “Additional Insured” to the
coverages required below. The certificates shall state the amount of all deductibles and shall
contain evidence that the policy or policies shall not be canceled or materially altered without at
least thirty (30) calendar days prior written notice to Bank of America. The insurance coverages
and limits required to be maintained by Licensee and its Subcontractors shall be primary to
insurance coverage, if any, maintained by Bank of America. Licensee and its Subcontractors and
their underwriters shall waive subrogation against Bank of America.
Worker’s Compensation Insurance which shall fully comply with(a)
the statutory requirements of all applicable state and federal laws. Employers’ Liability
Insurance which limit shall be $1,000,000 per accident for Bodily Injury and $1,000,000
per employee/aggregate for disease.
Commercial General Liability Insurance with a minimum(b)
combined single limit of liability of $1,000,000 per occurrence and $2,000,000 aggregate
for bodily injury, death, property damage and personal injury. This policy shall include
products/completed operations coverages and shall also include contractual coverage.
Business Automobile Liability Insurance covering all owned, hired(c)
and non-owned vehicles and equipment used by Supplier with a minimum combined
single limit of liability of $1,000,000 for injury and/or death and/or property damage.
Excess coverage with respect to the above with a per occurrence(d)
limit of $5,000,000.
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135982281v4_386430-01729
EXHIBIT “D”
NOTICE AND ENTRY AGREEMENT
The undersigned acknowledges receipt of that certain License Agreement (“Agreement”)
dated _____________________, 20_, by and between (“Li censee”), and Bank of America, NA.,
a national banking association (“Licensor”). The undersigned understands and agrees to be bound
by those provisions and notice requirements in the Agreement pertaining to any entry by Licensee
on the property owned by Licensor (“Licensor’s Parcel”) or entry into the building located on
Licensor’s Parcel.
Dated:[Contractor or Subcontractor]
By:
Its:
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SCHEDULE “1”
LOCATION OF TIEBACKS
[TO BE ATTACHED)
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135982281v4_386430-01729
Exhibit F
to Amended and Restated Parking Easement Agreement
Parking Lease
[See attached Pages]
98
135982281v4_386430-01729
Document comparison by W orkshare 9.5 on Friday, January 18, 2019 5:11:25
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Document 1 ID interwovenSite://LOCAL/US/135982281/3
Description #135982281v3<US> - Azusa - Amended and Restated
Parking Easement Agreement
Document 2 ID interwovenSite://LOCAL/US/135982281/4
Description #135982281v4<US> - Azusa - Amended and Restated
Parking Easement Agreement
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