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HomeMy WebLinkAboutCARIBOU INDUSTRIES (10).b' 0 V RECORDED AT THE REQUEST OF rAND WHEN RECORDED'MAIL TO: ]THE CITY OF SANTA ANA Z 20 CIVIC CENTER PLAZA, M-30 SANTA ANA, CA 92701 ATTENTION: CITY CLERK 000q 1-,ql ► -78 Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder NO FEE *$ R 0 0 1 4 1 0 4 1 8 2$ 2022000403443 2:56 pm 12/09/22 340 NC-5 Al2 E01 33 0.00 0.00 0.00 0.00 96.00 0.00 0.000.000.00 0.00 (Space Above This Line for Recorder's Office Use Only) ® COA(M,MOrley�S,VA�quezitPER 004% GOVERNMENT CODESECTION EXEMPT FROM N273 3E 103 N -1 Return WILLY EXECUTED A-2020-265-02 + Copy to COTC, M-30 N _ o GRANT OF EASEMENTS AND RECIPROCAL ACCESS, PARKING OPERATION AND MAINTENANCE AGREEMENT by and between the CITY OF SANTA ANA, a California charter city in the County of Orange of the State of California, and CARIBOU INDUSTRIES, INC., a Nevada Corporation [Dated as of October 5, 2020, for reference purposes only] Page 1 of 12 55394.00049133221248.8 Form of Parking Agreement THIS GRANT OF EASEMENTS AND RECIPROCAL ACCESS, PARKING OPERATION AND MAINTENANCE AGREEMENT ("Parking Agreement') is dated for reference purposes only as of October 5, 2020 and made and entered into by and between the City of Santa Ana, a California charter city in the County of Orange of the State of California (the "City"), and Caribou Industries, Inc. a Nevada Corporation (the "Developer") (collectively, the "Parties," and each a "Party"). The Parties enter into this Agreement with reference to the following recited facts (collectively, the "Recitals," and each a "Recital"): RECITALS A. City and Developer have entered into a Disposition and Development Agreement, dated October 5, 2020 for references purposes only, which was recorded on January 28, 2021, as Instrument No. 2021000061922 of the Official Records of Orange County, California (the "DDA") for the development of the Property with a Mixed Use Project including apartments, commercial (including retail and food/beverage establishments), a seventy-five (75) room Hotel Project and a Parking Structure which will contain 444 total parking spaces including 211 public parking spaces ("Project'). B. Pursuant to the DDA, the City will convey to Developer the real property generally located at 201 West Yd Street, Santa Ana, CA 92701 and as more particularly described in the legal description(s) attached to this Agreement as Exhibit "A" and depicted as APN 398-264-13, and including all land described in Exhibit "A", and on the site plan attached to this Agreement as Exhibit "F" to the DDA (the "Property"). C. City is the Owner of "Parcel A" as shown on Exhibit B, which is incorporated herein by this reference which contains 211 public parking spaces. ("Public Parking Parcel") D. Developer is the owner of the Mixed Use Project, which contains 171 residential units, as shown on "Parcel B" as shown on Exhibit B which contains 196 parking spaces. ("Mixed Use Parking") E. Developer is the owner of the Hotel Project, which contains seventy five (75) hotel units, as shown on "Parcel C" as shown on Exhibit B which contains eighty-three (83) parking spaces which are accomplished by tandem parking spaces as well as the use of mechanical lifts. ("Hotel Parking") F. The Public Parking Parcel, the Mixed Use Parking and Hotel Parking are shown on Exhibit B, which is incorporated herein by this reference. G. Mixed Use Parking and Hotel Parking may be referred to together as "Developer Parking Parcels." ("Developer Parking Parcels") H. Public Parking Parcel, Mixed Use Parking and Hotel Parking may be referred to together as "Parkine Structure". I. The City and Developer desire to enter into this Parking Agreement to set forth with specificity the accessibility and parking obligations applicable to the Parking Structure. ARTICLE 1 PARTIES; EFFECTIVE DATE Page 2 of 12 5 53 94.00049\3 3221248.8 Form of Parking Agreement 1.1 Incorporation of Recitals. The City and Developer agree that all of the above recitals are true and correct and are hereby incorporated into this Parking Agreement. 1.2 Effective Date of Agreement. This Parking Agreement is dated as of October 5, 2020, for reference purposes only. This Parking Agreement will become effective upon execution by the parties ("Effective Date") 1.3 Parties to Agreement. 1.3.1 The City. The address of the City is 20 Civic Center Plaza (M-25), P.O. Box 1988, Santa Ana, CA 92701; Attention: Kristine Ridge, City Manager. 1.3.2 The Developer. The Developer is Caribou Industries, Inc. a Nevada Corporation, LLC, The principal address of the Developer is 1103 N. Broadway, Santa Ana, CA 92701; Attention: Michael Harrah. 1.4 All of the terms, covenants and conditions of this Parking Agreement shall be binding on and shall inure to the benefit of the Developer and its nominees, successors and assigns. Wherever the tenn "Developer" is used herein or therein, such term shall include any nominee, assignee or successor of the Developer. 1.4.1 The City and Developer are sometimes individually referred to as "Party" and collectively as "Parties." ARTICLE 2 GRANT OF EASEMENTS 2.1 City Grant of Easements in Public Parking Parcel. The City hereby grants to Developer, for the benefit of Developer, a non-exclusive easement for pedestrian and vehicular ingress and egress over that certain real property (referred to herein as "Public Parking Parcel' described in Exhibit B and Exhibits B is hereby incorporated herein by reference. ("City Easement') The City Easement is being granted for the benefit of Developer for the purpose of constructing, operating and maintaining a portion of the Parking Structure and enabling the provision of a vehicular passageway throughout the Parking Structure. City Easement shall be enforceable as a covenant running with the land and an equitable servitude upon the lands overlying the Parking Structure, binding upon said lands, each person having or acquiring any right title or interest in said lands or any part thereof, or any improvements thereon, and upon their respective successors and assigns, and shall run for the benefit of the Developer and its successors and assigns owning or operating the Parking Structure. The grant of these Easements shall survive the termination of this Parking Agreement. 2.2 Developer Grant Easements in Developer Parking Parcels. The Developer hereby grants to City, for the benefit of City, non-exclusive easement for pedestrian and vehicular ingress and egress over that certain real property (referred to herein as the "Developer Parking Parcels") described in Exhibit B. ("Developer Easement') The Developer Easement shall be enforceable as a covenant running with the land and an equitable servitude upon the Parking Structure, binding upon each person having or acquiring any right, title, or interest in the Site or any part thereof, or any improvements thereon, and upon their respective successors and assigns, and shall run for the benefit of the City and its successors and assigns owning or operating the Parking Structure. Any conveyance of all or any part of or interest in the Parking Structure or Project shall be subject to, and by this Parking Agreement is deemed to be subject to, Easement Page 3 of 12 5 5 394.00049\3 322 1248. 8 Form of Parking Agreement granted by Developer to the Developer Parking Parcels. The grant of these Easements shall survive the termination of this Parking Agreement. 2.3 Tenn. The term of this Parking Agreement shall remain in effect so long as the City owns the Public Parking Parcel. ARTICLE 3 OPERATION OF PARKING STRUCTURE 3.1 Costs of Operation and Maintenance. During the term of this Parking Agreement, Developer shall be solely responsible for all costs and expenses incurred for operating and maintaining, or causing to be operated and maintained, the Parking Structure, in accordance with the terns of this Parking Agreement. 3.2 Public Parking. Upon the issuance of a certificate of occupancy or certificate of completion by the City for the Parking Structure, or as soon thereafter as the Parties may mutually agree, the Public Parking Parcel which contains 211 public parking spaces, shall be available to members of the public twenty-four (24) hours a day, 365 days a year (the "Public Parking"). Developer shall ensure that the Residential tenants, Hotel Guests, and the staff for any use within the Project shall park in those designated spaces and shall not utilize the Public Parking at anytime unless they pay for use of the Public Parking. Any use of the Public Parking by Residential tenants, Hotel Guests, and the staff for any use within the Project shall be subject to paying the Public Parking Fee consistent with the current Public Parking Rates set in accordance with Section 3.3. 3.2.1 No Common Area on floors within the Parking Structure containing Public Parking Parcels be used for parking without the express written consent of the City, nor shall any Common Area necessary to access the Public Parking Area be used for parking without the express written consent of the City. 3.2.2 Developer understands that the City currently sells monthly parking passes, and thirty (30) parking spaces are leased to California State University, Fullerton Foundation. The lease with California State University, Fullerton Foundation is set to expire on December 31, 2028. The City will work with California State University, Fullerton Foundation to relocate the thirty (30) leased parking spaces. If the relocation cannot be accomplished the Developer will accommodate the lease as part of the 211 public parking spaces. 3.2.3 If the thirty (30) leased parking spaces are unable to be relocated prior to the execution of this Agreement, these thirty (30) leased parking spaces shall not be subject to the parking rates as set forth in Section 3.3. 3.3 Parking Rates. Developer shall be entitled to establish the Public Parking Rates. The parking rates should be consistent with parking rates in the surrounding area. Public Parking Rates shall be approved in writing by the City. Developer shall not lease or issue any monthly parking pass for the Public Parking Space(s) without the prior written approval of the City. 3.4 Parking Revenue. Page 4 of 12 55394.00049\33221248.8 Form of Parking Agreement 3.4.1 Collection of Parking Revenue. Developer may either provide staff to collect the Public Parking Fees, utilize automated equipment to collect the Public Parking Fees or a combination of staff and automated equipment. The Parking Rates shall be charged and collected twenty-four (24) hours a day. 3.4.2 Distribution of Parking Revenue. Developer shall use and distribute the Public Parking Revenue in the following order (1) payment of any Third Party Parking Agreement, if one is executed by Developer in accordance with DDA Section 5.13.2; (2) Parking Structure Operation expenses; (3) Payment of the Parking Structure Debt incurred by the City; (4) Distribution to City and Developer in compliance with Terms of the DDA Section 5.13, et. seq. 3.5 Developer's Duties. The Developer at all times shall have full control of and management of the Parking Structure, subject to the following: 3.5.1 Parking Structure Debt. Developer covenants and agrees pursuant to the terms of the DDA that Developer shall be solely responsible to pay the Parking Structure Debt in accordance with the terms of the DDA. 3.5.2 Management and Operating Plan. At least ninety (90) days prior to the completion of the Parking Structure, Developer shall submit to the City a Management and Operating Plan for the Parking Structure. 3.5.2.1 The Management and Operating Plan shall contain the following: (a) the method of collection of Parking Fees (e.g. staff collection at gate, automated gates or pay point); (b) the proposed fee structure for the Parking Rates; (c) the maintenance schedule including a telephone number where the City can contact someone twenty-four (24) hours a day to identify any deficiencies with the maintenance of the Parking Structure; (d) if Developer will be using a Third Party Operator, the proposed agreement with the Third Party Operator shall be provided; and (e) the annual Budget to the operation of the Parking Structure. 3.5.2.2 City shall be entitled to request and Developer shall provide any additional information City determines in its sole discretion is necessary to ensure the adequate operation of the Parking Structure. 3.5.3 Consistent with the approved Site Plans for the Project, Developer shall be entitled to post signage and paint curbs and lines in a manner typical of Parking Structure such as, without limitation, restricting the hours and duration of parking, designating specific spaces for use by members of the Public, or the Hotel or Residential use; designating specific spaces for handicapped parking, and establishing speed limits, gates, controls and other barriers and routes of travel. At no time shall Developer designate any parking within the Public Parking Parcel for any use other than Public Parking. Page 5 of 12 5 53 94.00049\33221248.8 Form of Parking Agreement 3.5.4 Enforce the observation of posted speed limits within the Parking Structure and to enforce parking restrictions including the duration of parking, and specified purpose spaces, and in connection therewith, to exact fines and penalties and/or cause vehicles to be towed away at the vehicle owner's expense in accordance with applicable parking ordinances. 3.5.5 In consultation with City's Police Department and in compliance with all City laws and regulations, institute security measures which may include, but are not limited to, gates, parking attendants, video cameras, motion sensors, lighting, and other means of controlling and securing the Parking Structure against unauthorized entry or improper, undesirable, or criminal conduct. It is further understood that notwithstanding that the Public Parking to be made available, Developer retains the right to exclude any specific person or persons who may have committed or be suspected of committing any improper, undesirable or criminal conduct or for any other reasons whatsoever except and to the extent prohibited by law. 3.5.6 Maintenance of Parking Structure. During the Term, Developer shall maintain, or cause to be maintained, in good condition and repair Parking Structure, in a neat, clean, sanitary and orderly condition, ordinary wear and tear and casualty excepted, including landscaping, utility systems, lighting, paving, irrigation systems, drainage facilities or systems, grading, subsidence, retaining walls or similar support structures foundations, directional signage, ornamentation, and all other improvements on or to the Parking Structure, now existing or made in the future. All maintenance shall be done in accordance with the all applicable Federal, State and local statutes, ordinances, rules, standards and regulations. 3.5.6.1 Developer shall provide a telephone number that the City can contact twenty-four (24) hours a day to report any maintenance deficiency. 3.5.6.2 Developer shall make repairs as soon as practicable and shall notify City once the maintenance deficiency is corrected. If Developer fails to correct the maintenance deficiency within forty-eight (48) hours of being reported by the City, unless Developer has requested additional time is necessary to correct the maintenance deficiency, City in its sole discretion has the right but not the duty to correct the maintenance deficiency, or to hire a contractor to perform the correction. Developer shall be liable for all costs incurred by the City to correct the maintenance deficiency, including City Staff time, and shall reimburse City for the costs within ten (10) days of receiving the invoice from the City. Should Developer fail to pay the invoice within thirty (30) calendar days from invoice, the costs shall accrue interest at the lesser of: (i) the rate often percent (10%) per annum or (ii) the Usury Limit, until paid in full. The City's right, but not the obligation, to cure any maintenance deficiencies shall not be deemed to create any special duty of care or create any right of any third parties, whether founded in tort or contract. 3.6 Insurance. 3.6.1 Continuously during the Term, Developer shall furnish, or shall cause to be furnished, to City evidence that Developer maintains Commercial General Liability insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 0001; such insurance policy or policies (including umbrella coverage, if any) to afford with minimum limits of at least Three Million Dollars ($3,000,000.00) per occurrence for bodily injury, personal injury and property damage. 3.6.2 Endorsements containing the following four provisions shall be obtained for the policies providing the above insurance: Page 6 of 12 5 53 94.00049\3 3221249.8 Form of Parking Agreement 3.6.2.1 Additional named insureds: "The City of Santa Ana, its elective and appointive boards, officers, agents, volunteers and employees are added as additional named insureds with respect to this subject project and contract with the City." 3.6.2.2 Notice: "Said policy shall not terminate nor shall it be canceled or the coverage reduced until after thirty (30) days written notice is given to the City of Santa Ana." 3.6.2.3 Primary coverage: "Said policy and coverage as is afforded to the City of Santa Ana, its elective and appointive boards, officers, agents, volunteers and employees shall be primary insurance and not contributing with any other insurance maintained by the City of Santa Ana." 3.6.2.4 Cross-liability/Severability of interests: "Said policy provides cross -liability coverage for Developer and City and provides for severability of interests." 3.6.3 Any and all insurance policies required hereunder shall be obtained and maintained at all times from insurance companies admitted in the State of California and rated at least A: VIII in Best's Insurance Guide. Any insurance maintained hereunder may be maintained under blanket policies, covering other risks and properties. 3.6.4 Developer agrees that any policy limits specified in this Section 3.6 shall be increased from time to time during the Term as reasonably requested by City in writing as follows: 3.6.4.1 City may request no more than once in any five (5) year period during the Term that the coverage limits be reviewed to set forth an increase in coverage limits. 3.6.4.2 Upon receipt of such a request from City, Developer shall consult with Developer's insurance agent and City shall consult with its Risk Manager, and the insurance limits shall be increased, if appropriate, to equal the then -prevailing commercially reasonable levels of insurance carried by prudent and responsible owners of similar privately - owned parking facilities in Orange County. 3.7 Indemnity. 3.7.1 To the fullest extent permitted by law, Developer shall fully indemnify, defend (at Developer's sole cost and expense and with legal counsel selected and approved by City, in City's sole discretion), protect and hold harmless City, its elected officials, directors, board members, officers, employees, contractors, volunteers, agents and attorneys (collectively "City Indemnitees") from and against any and all actual claims, demands, obligations, acts, causes of action, damages, costs, expenses, losses, judgments, fines, penalties and liabilities, in law or in equity ("Claims"), to person or property, of every kind or nature whatsoever claimed, made or suffered by any person or entity, relating to this Parking Agreement, the construction or condition of the Parking Structure, or operation of the Parking Structure by Developer, or its employees, agents, contractors or representatives ("Third Party Challenge"), except insofar as such Claims are the result of gross negligence or willful misconduct of any City Indemnitee. Developer further agrees that City may use its own legal staff or outside counsel in connection with defense of any Third -Party Challenge, at the City Attorney's sole discretion, and City shall Page 7 of 12 5 53 94.00049\33221248. 8 Form of Parking Agreement have the right to select outside counsel of its choice, in its sole discretion. All reasonable costs to City associated with its defense of any Third Party Challenge, including but not limited to the time and expenses of the City Attorney's Office, other City staff, any Consultants or experts retained in connection with the Third Party Challenge, attorney's fees of City's selected outside counsel, and litigation costs shall be fully reimbursed to City by Developer. City will provide Developer with monthly invoices for all such costs in the case of a Third Party Challenge. Developer shall make payment to City for any costs covered by this section within thirty (30) days of receipt of an invoice from City for such costs. 3.7.2 Developer's waivers with regard to City as well as its commitments to the defense and indemnification of City set forth herein shall remain in full force and effect throughout all stages of any lawsuit, claim, or proceeding. 3.7.3 In the event of any Third Party Challenge, the Parties shall cooperate in defending against such challenge. Each party shall promptly notify the other of any such challenges. Developer shall assist and cooperate at its expense with City in connection with any such challenges. 3.7.4 In any action at law or equity or other legal or administrative proceeding arising out of or relating to this Parking Agreement, or Developer's operation of the Parking Structure, neither City nor Developer shall be entitled to damages or other remedies or relief except as expressly set forth in this Parking Agreement. Permitted remedies shall include mandatory or injunctive relief, writ of mandate, specific performance of this Parking Agreement, or a claim for reimbursement of unexpended funds and advanced by Developer to City. Without limiting the generality of the foregoing, neither City nor Developer shall be liable under any circumstances for any direct, indirect, special, compensatory, consequential, punitive or exemplary damages, regardless of whether the claim for damages is based on contract, tort, statute or other basis of liability. 3.7.5 Indemnification Survives Termination. The rights and obligations set forth in this Section 3.7 shall survive termination of this Parking Agreement. 3.8 Developer Solely Responsible. Developer acknowledges and agrees that it is solely responsible for the operation and maintenance of Parking Structure and that City shall have no liability for any claims arising out of such operation and maintenance of Parking Structure. 3.9 Restoration After Casualty. Subject to the limitations contained in this Section 3.9, in case of casualty resulting in damage or destruction to the Parking Structure during the Tenn, Developer shall restore the Parking Structure, as nearly as feasible to its condition prior to the casualty (except that Developer shall have the right to make reasonable alterations). 3.10 Developer's Obligation to Pay Taxes. During the Term, Developer shall pay all lawfully required property taxes and assessments on the Site, including, without limitation, real estate and personal property taxes, and any and all utility, city, or county assessments, lawfully assessed, levied, confirmed, or imposed during the Tenn of this Parking Agreement, whether or not now customary or within the contemplation of City and Developer. 3.10.1 Developer will have the right to contest the amount or validity, in whole or in part, of any tax or assessment by appropriate proceedings diligently conducted in good faith, only after paying the tax or posting such security as may be reasonably and customarily Page 8 of 12 5 53 94.00049\33221248.8 Form of Parking Agreement necessary in order to protect the Public Parking against loss or forfeiture. Upon the termination of those proceedings, Developer will pay the amount of the tax or part of the tax as finally determined, the payment of which may have been deferred during the prosecution of the proceedings, together with any costs, fees, interest, penalties, or other related liabilities. City will not be required to join in any contest or proceedings unless the provisions of any law or regulations then in effect require that the proceedings be brought by or in the name of City. In that event, City will join in the proceedings or permit them to be brought in its name; however, City will not be subjected to any liability for the payment of any costs or expenses in connection with any contest or proceedings, and Developer will indemnify City against and hold City harmless from any of those costs and expenses. 3.11 Covenants Running with the Land. The covenants of this Article 2 and 3 shall be covenants running with the land under California Civil Code Section 1468 of the Developer Property and of the Public Access Parcels for the benefit of the and the City, and binding upon successive owners of the Developer Property, until the end of the term, as defined in Section 2.3. ARTICLE 4 AUDITS 4.1 Audit and Records. The Developer agrees to provide, within forty-eight (48) of written notice provided by City, such reasonable reports, ledgers, receipts, invoices and similar documentation as may be necessary or relevant to the determination of Revenue received by Developer from the collection of Parking Fees, the Costs of Operation and Maintenance of the Parking Structure, and data regarding Parking Structure activity. City or its designee may request any other information it deems necessary to monitory compliance with the requirements set forth in the DDA or this Parking Agreement. Such records shall be maintained for a period of no less than five (5) years from their creation. The City may at any time, require the Developer to allow an audit of its books and records concerning the operation and maintenance of the Parking Structure by a certified public accounting firm of the City's choice and shall direct its accountants, attorneys, consultants and others having possession or control of such information and/or documentation to reasonably cooperate with the City's auditors; provided, however, that the Developer shall be required to disclose or make available any information or document subject to a privilege or exemption pursuant to any provision of the California Evidence Code. 4.1.1 City shall be permitted to inspect and photocopy same, and to retain copies, outside of the Developer's premises, of any and all records with appropriate safeguards, if such retention is deemed necessary by the City in its reasonable discretion. This information shall be kept by the City in strictest confidence allowed by law. 4.1.2 All books, records, documents and any other evidence referenced in this Section 4.1 shall be maintained or made available in a single location in Santa Ana. 4.1.3 Once every fiscal year, City may request an audit to be performed by an independent audit firm selected by City, Developer shall be solely responsible for the expense of this audit. City may perform additional audits during the fiscal year, but any additional audit(s) shall be at the sole expense of the City. 4.2 If the conclusion of such audit is that the Developer has understated its Parking Revenue by more than ten percent (10%), or overstated its Expenses by more than ten percent Page 9 of 12 55394.00049\33221248.8 Form of Parking Agreement (10%), in any quarter, the Developer shall reimburse the City any underpayment of Fees owed to City within ten (10) days written demand therefor, computed from the date that such underpayment was otherwise due, together shall accrue interest at the lesser of: (i) the rate of ten percent (10%) per annum or (ii) the Usury Limit, until paid in full. ARTICLE 5 DEFAULTS AND TERMINATION 5.1 Event of Default. Each of the following shall constitute an "Event of Default" under this Parking Agreement: 5.1.1 Failure by a Party to comply with and observe any of the conditions, terms, or covenants set forth in this Parking Agreement, if such failure remains uncured within sixty (60) days after written notice of such failure from the other Party in the manner provided herein or, with respect to a default that cannot be cured within thirty (30) days, if the Party in default fails to commence such cure within such sixty (60) day period or thereafter fails to diligently and continuously proceed with such cure to completion. However, if a different period, notice requirement, or remedy is specified under any other section of this Parking Agreement, then the specific provision shall control. 5.1.2 At City's sole discretion, City can request developer Terminate the Third Party Operator. Developer shall replace the Third Party Operator within ninety (90) calendar days of City's request. 5.1.3 At City's sole discretion if Developer fails to cure the default, City shall have the right but not the obligation to become the operator of the Parking Structure. If City becomes the Operator, all City incurred expenses including staff time for the operation of the Parking Structure shall be paid by the Parking Revenue received by the Parking Structure, should the Parking Revenue be insufficient to cover City incurred expenses, then Developer shall reimburse the City for the City's incurred expenses that were not covered by the Parking Revenue. Developer shall pay City within thirty (30) calendar days after written demand for payment from the City. Any amount expended by the City pursuant to this Section 5.3.1 that is not reimbursed to the City by the Developer within thirty (30) calendar days after written demand to the Developer for such reimbursement, shall accrue interest at the lesser of: (i) the rate of ten percent (10%) per annum or (ii) the Usury Limit, until paid in full. 5.1.4 Should Developer purchase Public Parking Parcel from City and Record of a covenant to retain and maintain the 211 Public Parking Spaces in perpetuity the benefit of the City, then the terms of this Parking Agreement shall expire, excepting however, that the Indemnity Provisions and all granted Easements, for access and parking shall survive the tennination of this Parking Agreement. 5.2 Legal Actions. Either party may institute legal action to cure, correct or remedy any default, and recover damages for any such default, or to obtain any other remedy available to that party, in law or in equity, consistent with the provisions of this Parking Agreement. Such legal actions must be instituted in the Superior Court of the County of Orange County, State of California. Page 10 of 12 55394.00049\33221248.8 Form of Parking Agreement ARTICLE 6 MISCELLANEOUS TERMS 6.1 Entire Agreement. This Parking Agreement, which incorporates the DDA, contains the entire agreement between the Parties relating to the rights herein granted and the obligations herein assumed. Any oral representations or modifications concerning this Parking Agreement shall be of no force and effect. This Parking Agreement may be amended only by a subsequent document in writing, signed by the Parties. 6.2 Attorneys' Fees. In the event of any action or proceeding relating to this Parking Agreement or any breach thereof, the prevailing Party shall be entitled to recover from the non - prevailing Party, in addition to all other relief available to it, its reasonable attorneys' fees and costs. 6.3 BindingEffect. This instrument shall be binding on and shall inure to the benefit of Developer and City, and their respective permitted successors, assigns, heirs, executors and administrators, and shall run with the land comprising the Parking Structure, and be binding upon all successor owners, lessees and mortgagees of the Site, and inure to the benefit of all successor owners of the Site and their mortgagees. 6.4 City Manager's Authority. The City Manager is hereby given the authority, on behalf of the City, to approve minor, non -substantive amendments to this Parking Agreement, and to give, condition or withhold the City's approvals as described herein, all without the need to return to the City's governing board for approval or ratification. 6.5 Subordination. At Developer's request from time to time, the City shall sign such documents as may be requested by Developer, to confirm that the City's rights under this Parking Agreement, are subject and subordinate to other encumbrances on the Site including, without limitation, deeds of trust and declarations of covenants, conditions, restrictions and reciprocal easements; provided, however, that as a condition of signing any document, the City shall be provided an agreement from the holder of the senior encumbrance that, except in the case of an Event of Default on the part of the City, the City's rights under this Parking Agreement including, without limitation, the Parking Covenant, shall not be disturbed. [Signatures on, following pages] Page 11 of 12 5 5394.00049\3 3221248.8 Form of Parking Agreement A-2020-265-02 SIGNATURE PAGE TO GRANT OF EASEMENTS AND RECIPROCAL ACCESS, PARKING OPERATION AND MAINTENANCE AGREEMENT By and Between CITY OF SANTA ANA AND CARIBOU INDUSTRIES, INC. CITY CITY OF SANTA ANA: By: i Name: Kristine Ridge Its: City Manager 1 k City Clerk ow. ♦ . APPROVED AS TO FORM: By: . f Cityttomey DEVELOPER: Page 12 of 12 5 53 94.00049\33221248.8 Form of Parking Agreement ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange ) On November 23, 2022,before me, L.J. Ortiz, Notary Public (insert name and title of the officer) personally appeared ii /k 4-{'> -aA who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. / L. J. ORTIZ NotaryPublic - California Orange county 4 Signature (Seal) _ = Commission k 2406078 Q-0 My Comm. Expires May 27, 2026 ' ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange ) On December 2. 2022, before me, L.J. Ortiz, Notary Public (insert name and title of the officer) personally appeared Kristine Ridge, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. >v ` L. J. ORTIZ Notary Public - California ` Orange County Signature (Seal) Commission p 2406078 r 'w ua+P My Comm. Expires May 27, 2026' EXHIBIT "A" TO GRANT OF EASEMENTS AND RECIPROCAL ACCESS, PARKING OPERATION AND MAINTENANCE AGREEMENT PROPERTY LEGAL DESCRIPTION All of that certain real property situated in the State of California, County of Orange, City of Santa Ana, described as follows: Parcel 1: All of Lots 2,3,6 and the northerly 20.00 feet of Lot 5 in Block 11 and all of Lots 1, 2, 3, 4, 5 and 6 in Block 12 of the town of Santa Ana, as shown on a map recorded in Book 2, Page 51 of miscellaneous records of Los Angeles County, California. Together with that portion of Sycamore Street, 60.00 feet wide, as shown on said map, as vacated and described in that certain resolution No. 82-17 of the city council of the City of Santa Ana, a certified copy of which was recorded February 11, 1982, as Document No. 82-051577 of official records of Orange County, California, bounded southerly by the north line of Third Street, 60.00 feet wide, and bounded northerly by a line parallel with and distant northerly 140.00 feet, measured at right angles, from said north line of Third Street. Excepting therefrom the easterly 15.00 feet of said Lot 3 in said Block 11. Parcel 2: A perpetual easement for ingress and egress over the south 2.50 feet of the east 15.00 feet of Lot 3 in Block 11 of the town of Santa Ana, as shown on a map recorded in Book 2, Page 51 of miscellaneous records of Los Angeles County, California, as reserved in the deed to J. E. Lieberg et at, dated June 5, 1923 and recorded in Book 475, Page 362 of deeds, records of Orange County, California. Parcel 3: The right to use that portion of a brick wall of the building on Lot 1 in Block 11 of the town of Santa Ana, as per map recorded in Book 2, Page 51 of miscellaneous records of Los Angeles County, California, which adjoins the east boundary line of the south 25.00 feet of Lot 2 in said Block 11, as a party wall, as granted by that certain agreement, dated July 1, 1919 by and between H. R. Andre, also known as Roy Andre, et at, as parties of the first part, and L. J. Carden et at, as parties of the second part recorded August 19, 1919 in Book 341, Page 362 of deeds, records of Orange County, California. EXHIBIT "B" TO GRANT OF EASEMENTS AND RECIPROCAL ACCESS, PARKING OPERATION AND MAINTENANCE AGREEMENT City Easement and Developer Easement Public Parking Parcel Developer Parking Parcel EXHIBIT "F" EXHIBIT "F-1" AND EXHIBIT "F-2" TO DISPOSITION AND DEVELOPMENT AGREEMENT Scope of Development/Site Plans I II�•I VI_II �, �r�� �� �v, ��. II �d �,� "" Illlllllllllil�ll 1 �pp�Hfll�pryp�l��l� � ' I * u�L �: � ii-i' ■Ira I � IhI i� III�II r� fsf:�'�� =n„y�t �� i m=n 6 � NO �:�riiMr�Is�.�_�® III►,\llil•®I ■�����9 �_,�_s�_s�rAi���'•: III I Scope of Development 171 Residential Units 75 Room Hotel 13,419 Commercial Space 46 Parking spaces 444 Parking Spaces Exhibit' F" Scope of Development/Site Plan 553 94.00049\33 23 9203.12