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HomeMy WebLinkAboutItem 1d - Purchase and Sale Agreement for 100 W. Huntington Drive. DATE: April 17, 2018 TO: Honorable Mayor and City Council FROM: Jason Kruckeberg, Assistant City Manager/Development Services Director SUBJECT: AGREEMENT FOR THE PURCHASE AND SALE OF CERTAIN REAL PROPERTY AND FOR RESTRICTIVE COVENANTS WITH SAICP, LLC, FOR THE SALE OF REAL PROPERTY LOCATED AT 100 WEST HUNTINGTON DRIVE Recommendation: Approve SUMMARY The City owns a small piece of property addressed as 100 West Huntington Drive, located at the southwest corner of the intersection of Huntington Drive and Santa Clara Street. The property was formerly used as a bar/tavern called the “100-1 Club”, but that building has been demolished and is currently vacant. The City is interested in beautifying this parcel and making in an attractive focal point at this busy intersection. As a result, the City is pursuing a sale of the property to the adjacent property owner to facilitate the installation of landscaping, hardscape, and public art to make this corner a source of pride for the City. Therefore, it is recommended that the City Council approve, and authorize and direct the City Manager to execute an Agreement for the Purchase and Sale of Certain Real Property and for Restrictive Covenants with SAICP, LLC, for the sale of real property located at 100 West Huntington Drive. BACKGROUND In 2015, the City of Arcadia purchased a piece of property located at 100 W. Huntington Drive. Street and right-of-way improvements adjacent to the property were necessary, and the property had become a safety concern. The installation of additional traffic signal hardware, a median, and a needed sidewalk in the area would have rendered the parking and access to this problematic and dangerous. In addition to safety issues, the buildings on site (the former “100-1 Club” Tavern) were derelict and an eyesore for the community. At about the same time, the adjacent property, formerly the Santa Anita Inn, was going through an approval process for a new Specific Plan that proposed a new hotel on the site as well as a residential/mixed-use tower. Currently, the Santa Anita Inn is being Purchase and Sale Agreement for 100 W. Huntington Drive April 17, 2018 Page 2 of 3 demolished and the site is being graded for the new hotel, a 227-room Le Meridien Hotel. Throughout the approval process for the new hotel project, the City has been in discussions with the property owner related to the sale of the former “100-1” Club property and recently, an agreement has been made as to the sale of the property, and its future use. DISCUSSION Following the street and intersection improvements that were conducted, the parcel addressed as 100 West Huntington Drive was rendered essentially undevelopable. The site is only 6,273 square feet in size, and is surrounded by both eastbound and westbound Huntington Drive at a very busy intersection. There is no practical and safe method of building on this lot and providing the necessary parking, access, and egress, to make a new construction project feasible. As a result, the only practical and beneficial options for future use of the property are either to incorporate the property into the adjacent, privately-owned property (over 5 acres in size), or as a City-owned open space or landscaped area. Given these options, the City Council has reasoned that it would be serve the public interest to sell this property to the adjacent property owner, along with some restrictive covenants as to how the property can be used to best serve the public need. Since the property is not suitable for building placement or access, the best use of this property is to incorporate it into the adjacent parcel and utilize it for public art, landscaping, and hardscape. The Purchase and Sale Agreement is structured to sell the land for a nominal cost of $1,000. This fee reflects the lack of “buildable” land that the site represents. However, in addition to the cost, the buyer of the property, SAICP, LLC, who is building the new Le Meridien Hotel, will be required to do the following: 1) landscape the site, 2) fund the creation and installation of a public art piece to be permanently housed on the site, 3) install hardscape and lighting on the site, 3) forever maintain the art and landscaping on site. As for the public art component, the City Council is interested in hosting an open public art competition with the theme of “Hometown Heroes”, to develop an appropriate piece of art. The City, and the buyer, will review entries for their appropriateness for this location. The buyer has agreed to fund the creation/fabrication of the art piece up to a total of $75,000, in addition to funding the installation and the long term maintenance of the piece after installation. The sale of the property provides a public benefit in that this property will serve as a beautified focal point at an important and visible intersection within the City. As the property is not developable with buildings or access, the use contemplated here is the highest and best for the property. This piece serves as a “gateway” not only to Arcadia’s Downtown area as you go eastbound, but also to the Racetrack and Civic Center area Purchase and Sale Agreement for 100 W. Huntington Drive April 17, 2018 Page 3 of 3 traveling westbound. The installation of public art, developed through an open competition, will also be in the overall public interest and benefit as it will provide a source of public interest and pride for the City. By selling the property, rather than developing this site independently, the City also saves future costs of landscaping, hardscape, lighting, and the public art costs, not to mention long term maintenance and upkeep costs. ENVIRONMENTAL ANALYSIS The proposed action does not constitute a project under the California Environmental Quality Act (“CEQA”) per Section 15061(b)(3), as it can be seen with certainty that it will have no impact on the environment. Thus, the Purchase and Sale Agreement itself is exempt under CEQA. The future award of the art piece and its installation will be reviewed under CEQA as well. FISCAL IMPACT The small sale proceeds involved ($1,000) will accrue to the City. In addition, the City will no longer be responsible for taxes, maintenance, or installation costs of landscaping or hardscape on the property. RECOMMENDATION It is recommended that the City Council approve, and authorize and direct the City Manager to execute an Agreement for the Purchase and Sale of Certain Real Property and for Restrictive Covenants Agreement with SAICP, LLC, for the sale of real property located at 100 West Huntington Drive. Attachments: 1 - Proposed Agreement for the Purchase and Sale of Certain Real Property and for Restrictive Covenants 2 - Grant and Declaration of Public Art Space Conditions, Covenants and Restrictions 24347.00365\30852901. 11 AGREEMENT FOR THE PURCHASE AND SALE OF CERTAIN REAL PROPERTY AND FOR RESTRICTIVE COVENANTS This Agreement for the Purchase and Sale of Certain Real Property and for Restrictive Covenants (the “Agreement”) is entered into as of April ___, 2018, by and between the City of Arcadia, a California charter city and municipal corporation (“City”) and SAICP LLC, a California limited liability company (“Purchaser”). City and Purchaser shall individually be referred to herein as a “party” and together as the “parties.” RECITALS A. City is the record owner of a parcel of land commonly known as 100 W. Huntington Drive, Arcadia, California, which is a vacant lot containing approximately 6,273 square feet (the “Property”), which is identified by the Los Angeles County Assessor’s Office as Assessor’s Parcel Number 5775-024-919. The Property is more particularly described in the attached Exhibit “A”, which is incorporated by this reference. B. Purchaser desires to acquire the Property from City for a cash price of $1,000.00. City is willing to sell the Property to Purchaser on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the above and the mutual covenants contained herein, the parties hereto agree as follows: 1. Incorporation of Recitals. The recitals set forth above, and all defined terms set forth in the recitals and in the introductory paragraph preceding the recitals, are hereby incorporated into this Agreement as if set forth in full. 2. Purchase and Sale of Property. a. Acquisition of Property. Purchaser agrees to acquire the Property from City. b. Purchase Price. The purchase price (“Purchase Price”) for the Property shall be ONE THOUSAND DOLLARS ($1,000.00). The Purchase Price shall be paid by Purchaser to City as part of the Closing (as defined below) by a cashier’s check payable to “City of Arcadia”. c. Transfer of Ownership; Declaration of Restrictions. City shall transfer ownership of the Property to Purchaser, provided all conditions in this Agreement have been satisfied, pursuant to a Grant Deed in a form to be agreed to by the parties. Upon the transfer of ownership of the Property at the Closing (as defined below), Purchaser shall be in possession of, and be responsible for maintenance of, the Property. Immediately following the recording of the Grant Deed, the Purchaser 24347.00365\30852901. 12 shall execute and record a Grant and Declaration of Public Art Space Conditions, Covenants and Restrictions in the form of the attached Exhibit “B”. 3. Closing; Pre-Closing Acts. The Closing shall occur when City delivers to Purchaser a Grant Deed as described above, and Purchaser pays to City the Purchase Price. There shall be no escrow between the parties, but prior to the Closing and as conditions of the Closing, the parties shall do the following: a. City shall in cooperation with Purchaser open a title order with Title 365, 5000 Birch St., #300, Newport Beach, CA 92660 and request a preliminary title report (the “PTR”) which shall then be delivered to Purchaser for review. b. Purchaser shall then have 10 business days to review the PTR and notify City of any objections it has to the PTR. If no objections are made within that time, Purchaser shall be deemed to have waived any objections to the state of title of the Property. If objections are made, City shall have 10 business days in which to advise Purchaser either that the objection will be removed from title, or to advise that City will not proceed with the sale, in which event this Agreement shall terminate. c. As part of the Closing, the parties shall request that Title 365 arrange for the recording of the Grant Deed conveying title to Purchaser, and then issue a CLTA Owners Policy of Title Insurance for the benefit of Purchaser, showing that the Property is free and clear of all liens except for real property taxes and assessments not yet due and payable, and such other exceptions which appeared on the PTR and to which Purchaser did not object. d. All of the expenses for the reports, recording and title policy shall be paid by Purchaser. 4. Maintenance of Property, Display of Public Art Work and Payment for Public Art Work. Purchaser understands and agrees that the following shall be covenants, conditions and restrictions on the Property which are intended to run with the land and which will be a part of the Grant Deed: a. The parties acknowledge that the Property is located in a prominent location in the City of Arcadia which is seen by thousands of people on a regular basis. They also acknowledge that the proposed development project for the land adjacent to the Property will benefit by the Property being maintained in a condition as to make it attractive to all who pass by the Property and the adjacent parcels of land. b. To maximize the long-term benefits to City and to Purchaser, and the successors of Purchaser, the Parties agree that it is best that the Property be kept free of buildings, and that it be appropriately landscaped/hardscaped in a manner approved by City and that it have on it a work of art in the form of a work of public art which will be attractive to those 24347.00365\30852901. 13 who view the Property (the “Public Art”). c. Purchaser agrees that City will have a design competition with a theme of “Hometown Heroes” to select the Public Art, and that the competition shall involve the Art Department at Arcadia High School. The Public Art shall be of a size which is significant enough to be viewed clearly from the public rights-of-way yet not overwhelm the corner landscaping, and shall be no larger in dimension than twelve (12) feet high and ten (10) feet wide, including any pedestal or other mounting method. d. Upon City selecting the winner of that competition, in its sole and absolute discretion, Purchaser will coordinate with City for Purchaser to pay for the cost of the Public Art (up to a maximum of $75,000.00), and for the installation and ongoing annual maintenance of the Public Art. The Public Art will be installed in coordination with City as soon as the Property has been landscaped. The Public Art shall be illuminated appropriately. The Public Art shall be a permanent installation. Once installed, the Public Art may never be removed without the express written permission of City. 5. Real Property TAxes. City shall not be responsible for any real estate taxes and assessments for the Property for the period prior to the Closing. 6. City’s Promise Not to Further Encumber and to Maintain Property. City agrees to deliver the Property at the Closing in substantially the same order and condition as on the Effective Date of this Agreement, except as may be otherwise provided in this Agreement. During the term of this Agreement, City shall not do any of the following without the prior written consent of Purchaser, which shall not be unreasonably withheld: a. Make or extend any leases, contracts, options, or agreements whatsoever affecting the Property that fail to incorporate the terms of this Agreement by reference or that would authorize any action that would be a violation of this Agreement that City cannot remove by Close of Escrow; or b. Cause of permit any lien, encumbrance, mortgage, deed of trust, right, restriction, or easement to be placed upon the Property. 7. City’s Representations. a. Authority. By the Closing, City shall have full power and authority to enter into this Agreement and to sell, transfer, and convey fee title to the Property. b. Pending Actions. There is no suit, action, arbitration, legal, administrative, or other proceeding or other inquiry pending or to the best of City’s knowledge threatened against the Property or pending or to the best of City’s knowledge, threatened against City that will affect City’s title to the Property, or any portion thereof, or materially affect the value of the Property. To the best of City’s knowledge, there are no: 24347.00365\30852901. 14 i. Intended public improvements or private rights that will result in the creation of any liens upon the Property, except as are included in the Permitted Encumbrances; ii. Uncured notices that have been served upon City from any governmental agency notifying City of any violations of law, ordinance, rule, or regulation that affect the Property; iii. Mechanic’s liens against the Property; iv. Notices or other information giving City reason to believe that any conditions existing on the Property or in the vicinity of the Property or in ground or surface waters associated with the Property will have a material effect on the value of the Property or subject the owner of the Property to liabilities under environmental law; or v. Leases, licenses, permits, other options, rights of first refusal, or other agreements (written or oral) that will affect the Property after the Closing, except as are included in the Permitted Encumbrances. c. Other Agreements. This Agreement shall not constitute a breach or default under any agreement to which City is bound or to which the Property is subject. d. Condemnation. There are no presently pending or, to the best of City’s knowledge, contemplated proceedings to condemn the Property. 8. Purchaser Representations. Purchaser represents and warrants to City that Purchaser has full power and authority to enter into this Agreement and to purchase the Property under the terms of this Agreement, and the person(s) signing this Agreement on behalf of Purchaser has full power and authority to sign for Purchaser and to bind Purchaser to this Agreement. This Agreement shall not constitute a breach or default under any agreement to which Purchaser is bound or violate any law affecting Purchaser. 9. Condition and Inspection of Property. Notwithstanding any other provision of this Agreement to the contrary, neither City nor any principal, employee, or agent of City has made or will make, either expressly or impliedly, any representations, guarantees, promises, statements, assurances, or warranties of any kind concerning the Property including, without limitation, the following matters (collectively referred to herein as the “Property Conditions”): (i) the suitability or condition of the Property for any purpose or its fitness for any particular use, (ii) the profitability and/or feasibility of owning, developing, operating, and/or improving the Property, (iii) the physical or environmental condition of the Property or conditions that may affect the Property or its current or future uses, habitability, value, or desirability, (iv) the rentals, income, costs, or expenses thereof, (v) the net or gross acreage, usable or unusable, contained therein, (vi) the zoning of the Property, (vii) the condition of title, (viii) the compliance by the Property with applicable zoning or building laws, codes, or ordinances, or other laws, rules, and regulations, (ix) storm drainage, water or utility availability or use restrictions, (x) 24347.00365\30852901. 15 geologic/seismic conditions, soil and terrain stability, or drainage, (xi) sewer, septic, and well systems and components, (xii) other neighborhood or Property conditions, including, schools, proximity and adequacy of law enforcement and fire protection, crime statistics, noise or odor from any sources, landfills, proposed future developments, or other conditions or influences that may be significant to certain cultures or religions, or (xiii) any other past, present, or future matter relating to the Property that may affect the Property or its current or future use, habitability, value, or desirability. The Property is sold AS IS, WHEREAS, WITH ALL FAULTS, AND THERE IS NO WARRANTY, EXPRESS OR IMPLIED, REGARDING THE CONDITION OF THE PROPERTY. Purchaser hereby represents and warrants that it is relying solely upon its own independent inspection, investigation, and analysis of the Property as it deems necessary or appropriate in so acquiring the Property from City, including without limitation, any and all of the Property Conditions. Upon the Closing, Purchaser will assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser’s inspections and investigations. Purchaser acknowledges that City would not sell the Property to Purchaser without the foregoing acknowledgements. PURCHASER EXPRESSLY WAIVES ALL RIGHTS UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE THAT PROVIDES: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. ______________________ Initial of Purchaser’s Authorized Representative THE FOREGOING WAIVER AND RELEASE SHALL SURVIVE THE CLOSE OF ESCROW AND THE DELIVERY AND RECORDING OF THE DEED 10. Conditions Precedent and Survival of Representations and Warranties. a. Conditions Precedent. Purchaser and City’s obligations under this Agreement are both expressly subject to the representations and warranties of the other party, as set forth herein. All such representations shall be true and accurate as of the Closing. b. Survival of Warranties. Purchaser and City agree that each representation and warranty in this Agreement respectively shall survive the Closing for a period of six (6) months thereafter and shall not merge with the delivery of the Grant Deed to Purchaser. 11. Risk of Loss. All risk of loss or damage to the Property (except any damage caused by City or City’s representatives for which City shall be responsible) shall remain with City until Closing. In the event some material loss or damage occurs prior to the Closing (except any damage caused by City or City’s representatives for which City shall be responsible), City 24347.00365\30852901. 16 may, without liability, terminate this Agreement. In the event of such termination, no party shall have any further liability or obligation under this Agreement, except as expressly provided in this Agreement. 12. Assignment and Successors. This Agreement may not be assigned by either party without the prior written consent of the other party, to be given in its sole and absolute discretion. Subject to the foregoing sentence, this Agreement shall inure to the benefit of and be binding on the parties to this Agreement and their respective heirs, beneficiaries, successors, and assigns. 13. General Provisions. a. Professional Advisors. City encourages Purchaser to retain and rely upon its own professional advisors. Except for what is set forth in this Agreement, Purchaser is not relying on any statements, information, representations, or advice provided by City in this transaction. Purchaser will rely on independent counsel regarding all aspects of this transaction, including without limitation, the characterization of the transaction by the County tax assessor. b. Commissions. Each party represents to the other party that it does not have a broker in the current transaction and that the representing party has incurred no liability for any brokerage commission or finder’s fee arising from or relating to the transactions contemplated by this Agreement. Each party indemnifies and agrees to protect, defend, and hold harmless the other party from and against all liability, cost, damage, or expense (including without limitation attorneys’ fees and costs incurred in connection therewith) on account of any brokerage commission or finder’s fee that the indemnifying party has agreed to pay or which is claimed to be due as a result of the actions of the indemnifying party. c. Integration. The terms of this Agreement are intended by the parties as a final expression of their agreement with respect to such terms as are included herein and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. The parties further intend that this Agreement constitutes the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving this Agreement. d. Additional Documents. The parties agree to execute such additional commercially reasonable documents, including escrow instructions, as may be reasonable and necessary to carry out the provisions of this Agreement; provided that no party shall be required to execute any document that conflicts with any of the provisions of this Agreement. e. Amendments. This Agreement may not be amended, modified, altered, or changed in any respect except by a further agreement in writing executed by the parties. f. Notices. All notices, claims, demands, or other communications under this Agreement (each such, a “notice”) shall be in writing, delivered by hand, facsimile transmission, commercial express courier service, or U.S. mail, postage prepaid, to the parties and their attorneys at the addresses provided below. Notices delivered by hand or by commercial express 24347.00365\30852901. 17 courier service shall be deemed given when received, as evidenced by written receipt. Notices delivered by mail shall be deemed given three (3) days after mailing. Notices transmitted by facsimile shall be deemed given when transmitted. To City: City of Arcadia Attn: Jason Kruckeberg, Assistant City Manager/Development Services Director 240 West Huntington Drive Arcadia, California 91007 Phone: (626) 574-5414 Email: jkruckeberg@arcadiaca.gov With a copy to: Best Best & Krieger LLP Attn: Stephen P. Deitsch 2855 East Guasti Road, Suite 400 Ontario, California 91761 Phone: (909) 483-6642 E-Mail: stephen.deitsch@bbklaw.com To Purchaser: SAICP LLC 119 A La Porte Arcadia, Ca. 91006 Attn: Robb MacMillan g. Independent Parties. In performing this Agreement, Purchaser is an independent party and not an agent of City. City shall have no responsibility for payment to any contractor or supplier of Purchaser. It is not intended by the parties that this Agreement create a partnership or joint venture between them, and this Agreement shall not otherwise be construed. h. Attorneys’ Fees. If any legal action is brought by either party to enforce any provision of this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorneys’ fees, costs, and court costs in such amounts as shall be allowed by the court. This Section shall survive the Closing or any earlier termination of this Agreement. i. Severability. Each provision of this Agreement is severable from any and all other provisions of this Agreement. Should any provision of this Agreement be for any reason unenforceable, the balance shall nonetheless be in full force and effect. j. Time of Essence. Time is of the essence of this Agreement. k. Mediation of Disputes; Remedies. City and City agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action. Mediation fees, if any, shall be divided equally between 24347.00365\30852901. 18 the parties. The exercise of any remedy provided by law and the provisions of this Agreement for any remedy shall not exclude other remedies unless they are expressly excluded. l. Waiver. Waiver by one party of the performance of any covenant, condition, or promise shall not invalidate this Agreement, nor shall it be considered to be a waiver by such party of any other covenant, condition, or promise hereunder. The waiver by any party of the time for performing any act shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time. m. Dependency. The respective warranties, representations, covenants, agreements, obligations, and undertakings of each party hereunder shall be construed as dependent upon and given in consideration of those of the other party. n. Construction. As used in this Agreement, the masculine, feminine, or neuter gender and the singular or plural number shall each be deemed to include the other whenever the context so indicates. This Agreement shall be governed by, and construed under, the laws of the State of California, as having been drafted by both parties. o. Interpretation; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any legal action to enforce or interpret the provisions of this Agreement may be commenced only in the Superior Court of the County of Los Angeles, State of California. p. Acquisition of Salvation Army Property. To induce City to enter into this Agreement, Purchaser agrees to use its best efforts to acquire from the owner of that property the real property and improvements located at 180 W. Huntington Drive, Arcadia, CA 91007 (APN#5775-024-015). IN WITNESS WHEREOF, the parties have executed this Agreement on the dates shown below, the latter of which shall be the “Effective Date,” and Purchaser and City hereby acknowledge receipt of a copy of this Agreement. CITY OF ARCADIA, a California municipal corporation By: Date: Peter Amundson, Mayor Attest: By: City Clerk 24347.00365\30852901. 19 Approved as to form: By: Stephen P. Deitsch, City Attorney PURCHASER SAICP, LLC, a California limited liability company, By: Date: Its: Manager #156236 v8 9999.1 1 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: SAICP LLC 119A La Porte Steet Arcadia, CA, 91006 Attention: (Space Above Line for Recorder’s Use Only) GRANT AND DECLARATION OF PUBLIC ART SPACE CONDITIONS, COVENANTS AND RESTRICTIONS This Grant and Declaration of Public Art Space Conditions, Covenants and Restrictions (the “Declaration”) is made as of ________ __, 2018 by SAICP LLC, a California limited liability company (“Declarant”). A. Declarant is the fee owner of a parcel of real property located in the City of Arcadia (the “City”), County of Los Angeles (the “County”), State of California generally described as 100 W. Huntington Drive, Arcadia, California, which is a vacant lot containing approximately 6,273 square feet (the “Property”), which is identified by the Los Angeles County Assessor’s Office as Assessor’s Parcel Number 5775-024-919 (“the Parcel”). The Parcel is more particularly described in Exhibit “A” which is attached to this Declaration as Exhibit “A” and made part hereof. As used herein, the term “Declarant” means SAICP, LLC and any other person or legal entity who or which acquires any form of legal or equitable title to the Parcel whether by grant, foreclosure, lien, lease, license, easement or otherwise. B. Declarant has acquired title to the Parcel from the City of Arcadia, California (the “City”). As part of that acquisition, Declarant has agreed that: 1. The Parcel is located in a prominent location in the City which is and will be seen by thousands of people on a regular basis. The proposed development project for the land adjacent to the Parcel will benefit by the Parcel being maintained in a condition as to make it attractive to all who pass by the Parcel and the adjacent parcels of land. 2. As part of the purchase of the Parcel, the Declarant and the City agreed that it is best that the Parcel be kept free of buildings, and that it be appropriately landscaped/hardscaped in a manner approved by City and that it have on it a work of art in the form of a work of public art which will be attractive to those who view the Parcel (the “Public Art”). 3. The Declarant has further agreed with the City that it will pay a specified and agreed sum for the installation and ongoing annual maintenance of the Public Art. The Public Art will be installed in coordination with City as soon as the Parcel has been landscaped, and shall be illuminated appropriately as a permanent installation. The Declarant has further agreed that once it is installed, the Public Art may never be removed without the express written permission of City. #156236 v8 9999.1 2 C. Declarant desires to enter into and record this Declaration for itself, its successors and assigns to declare that the Parcel is to be held, sold, leased and conveyed subject to the covenants, conditions and restrictions herein declared and which covenants, conditions, and restrictions shall be in full force and effect in perpetuity. NOW, THEREFORE, Declarant hereby declares, for itself, its successors and assigns, the covenants, conditions and restrictions over the Parcel, which shall be appurtenant to the Parcel when conveyed in any manner, as follows: 1. Declaration of Covenants, Conditions and Restrictions. Declarant declares that the following covenants, conditions and restrictions shall hereafter perpetually bind the Parcel: (a) The Parcel shall be perpetually used solely for the display of the Public Art, and the Public Art may not be thereafter removed or altered without the express written consent of the City; (b) The Parcel shall be hardscaped and landscaped in a manner acceptable to the City and shall thereafter be maintained in first class condition by the Declarant; and, (c) The Parcel will be kept free of buildings and any other types of structures. 2. Public Benefit. This Declaration is made for the public benefit of the City. 3. Enforcement and Remedies. The provisions of this Declaration, and the conditions, covenants and restrictions declared, established and created herein may be enforced by the City in proceedings at law or in equity, including without limitation: (a) Right of Action. All actions at law for damages, and/or all equitable remedies shall be available to redress or to prevent violation of any provision, easement, covenant, condition, or restriction of this Declaration. (b) Nuisance. To the full extent permitted by applicable law, the result of every act or omission whereby any provision, easement, covenant, condition, or restriction of this Declaration is violated, in whole or in part, is hereby declared to be and does constitute a nuisance, and every remedy allowed by law or equity against a private nuisance shall be available to redress or prevent every act or omission with such a result. 4. Covenants, Conditions and Restrictions to Run with the Parcels. The covenants, conditions and restrictions declared in this Declaration shall be interests in the Parcel. The rights and obligations provided in this Declaration shall be appurtenant to and shall run with the Parcel in perpetuity, and the benefits and burdens of this Declaration shall bind and benefit all parties having or acquiring any right, title or interest in the Parcel, or any part of the Parcel. Upon recordation of this Declaration, every person or entity that now or hereafter owns or acquires any right, title or interest in or to all or any portion of the Parcel is and shall be conclusively deemed to have consented and agreed to every provision of this Declaration, and every easement, covenant, condition, and restriction created by this Declaration, whether or not any reference to this Declaration is contained in the instrument by which such person or entity acquired such interest in #156236 v8 9999.1 3 such Parcel. This Declaration may never be amended, modified or terminated without the express written consent of the City, which may be withheld by it in its sole discretion. 5. Assignment. Declarant may assign all or any of its rights or obligations under this Declaration at any time to any successor in interest in all or any portion of the Parcel (a ”Successor”). Upon any assignment of rights or obligations by Declarant or a Successor as permitted above, Declarant or such Successor may retain such of its rights and obligations, if any, under this Declaration as Declarant or such Successor may desire, with the right to assign such rights and obligations to a Successor in one or more further assignments from time to time in the future. Any and each such assignment of rights or obligations to a Successor pursuant to this Section shall be evidenced by a writing recorded in the Official Records of the County, which shall include a written acceptance of such rights and assumption of such obligations on behalf of the Successor. Upon a Successor’s assumption of an obligation of Declarant under this Declaration, Declarant (or the assigning Successor, as applicable) shall have no responsibility for any further performance of such obligation, but shall remain liable for such performance and breaches occurring during the period that Declarant (or such assigning Successor, as applicable) held such obligation hereunder. 6. Miscellaneous Provisions. (a) Cumulative Remedies. All rights, options and remedies declared herein are cumulative and no one of them shall be exclusive of any other. The Declaration may be enforced by pursuit of any one or all of the rights, options, and remedies available pursuant to this Declaration, or any other remedy or relief provided by law. (b) Notices. Any notice, request, demand, consent, approval, payment, or other communication required or permitted to be made hereunder or by law shall validly be given or made only if in writing and delivered in person to an officer or duly authorized representative of the addressee, or deposited in the United States mail, duly certified or registered (return receipt requested), postage prepaid, and directed to the addressee for whom intended at an address furnished by addressee for the purpose of such communications. If no address is provided, communications may be delivered to the principal office or place of business of the addressee. (c) Attorneys’ Fees. In the event of any controversy, claim or dispute relating to this Declaration or the breach thereof, the prevailing party shall be entitled to recover from the losing party expenses, attorneys’ fees and costs actually and reasonably incurred. (d) Captions. The section headings used in this Declaration are for convenience only, and do not modify, alter, or add to the terms in the Declaration. (e) Severability. If any term, provision, easement, covenant or condition of this Declaration is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Declaration shall not be affected thereby, and each term, provision, easement, covenant, condition, or restriction of this Declaration shall be valid and enforceable to the fullest extent permitted by law. (f) Governing Law. This Declaration shall be construed and enforced in accordance with the laws of the State of California. #156236 v8 9999.1 4 (g) Waiver. The waiver of any breach of any provision, easement, covenant, condition or restriction of this Declaration by the City or its successor shall not be deemed to be a waiver of such right or of any preceding or subsequent breach of the same or any other provision, easement, covenant, condition or restriction. 7. Equitable Servitudes. Each of the conditions, restrictions, and covenants set forth herein above are equitable servitudes and shall run with the land and be binding on the parties hereto and on their successors-in-interest as owners of any real property interest in all or any portion of the Parcel. 8. Representation of Authority. Declarant represents that the person or persons executing this Declaration on its behalf has the legal authority to do so, and Declarant waives any right to contest this Declaration based upon a claim that the signatory lacked the requisite authority. IN WITNESS WHEREOF, Declarant has executed this instrument as of the day and year first above written. SAICP LLC, a California limited liability company, By: _____________________________ Its:__________________________ #156236 v8 9999.1 5 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 Los Angeles ) On ____________ before me, ____________________________, a Notary Public, personally appeared ________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature #156236 v8 9999.1 A-1 EXHIBIT “A” 24347.00365\30852602.1