Notwithstanding anything to the contrary in this Lease, an extension of time for delays actually caused by any such event shall be for the period of the Unavoidable Delay and shall commence to run from the time of the commencement of the event, if notice by the party claiming such extension is sent to the other party within thirty (30) days after the commencement of the event.
17.7 Mem
orandum of Lease. A Memorandum of Lease in the form attached hereto as Exhibit B (“Memorandum of Lease”) shall be signed by City and Tenant at the same time as this Lease is signed. The Memorandum of Lease shall be recorded in the Official Records of the County of Orange, California, on the Term Commencement Date. Tenant will pay all costs of recording, including any County documentary transfer tax or City conveyance tax. Tenant shall pay the cost of any title insurance it may require.
17.8 C
aptions . The word titles contained herein are inserted solely for convenience and under no circumstances are they or any of them to be treated or construed as any part of this instrument.
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17.9 Successors and Assigns . Subject to the provisions hereof, this Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns, and wherever a reference in this Lease is made to either of the parties hereto such reference shall be deemed to include, wherever applicable, also a reference to the successors and assigns of such party, as if in every case so expressed.
17.10 I
ndemnity Includes Defense Costs . In any case where one party is obligated under an express provision of this Lease to indemnify and to save the other party harmless from any damage or liability, the indemnity obligation shall be deemed to include defense of the indemnified party, such defense to be through legal counsel selected by or reasonably acceptable to the indemnified party.
17.11 B
usiness Days. As used herein, the term “business day” shall mean any day other than a Saturday, Sunday or day on which the City is closed for business. If any of the dates specified in this Lease shall fall on a non-business day, then the date of such action shall be deemed to be extended to the next business day.
17.12 D isclaimer of Partnership . The relationship of the parties hereto is that of Lessor and tenant, and it is expressly understood and agreed that City does not as a result of this Lease in any way nor for any purpose become a partner of Tenant or a joint venturer with Tenant in the conduct of Tenant ’s business or otherwise. This Lease is not intended to, and shall not be construed to, create the relationship of agent, servant, employee, partnership, joint venture, or association as between City and Tenant.
17.13 N
otice and Cooperation in Legal Proceedings . Tenant shall give prompt notice, in writing, to the City of the commencement of any action, lawsuit or other legal proceeding against City or against Tenant with respect to any aspect or part of the Premises or this Lease. Tenant shall cooperate with City , and shall cause all the Tenant Representatives to cooperate, in connection with the prosecution or defense of any such legal proceedings. For purposes of this Lease, “Tenant Representatives ” shall mean Tenan t’s agents, contractors, subcontractors, representatives, officers, employees, members, partners, shareholders, directors and managers.
17.14 N
o Waiver . No delay or failure to require performance of any provision of this Lease shall constitute a waiver of that provision as to that or any other instance. Any waiver granted by a party must be in writing and shall apply to the specific instance expressly stated.
17.15 T
hird Party Beneficiaries . Except as otherwise expressly stated herein, this Lease does not confer any rights or remedies upon any person or entity other than the parties. Except as otherwise expressly stated herein, there are no third- party beneficiaries to this Lease. Each Leasehold Lender is hereby made an express third party beneficiary of the express rights granted hereunder.
17.16 C
ounterparts; Electronic Signatures . This Lease may be executed in any number of counterparts, and all of such counterparts so executed together shall be deemed to constitute one and the same agreement, and each such counterpart shall be deemed to be an original. The parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term
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“electronic copy of a signed contract ” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the parties.
17.17 Entire Lease: Governing Language. This Lease constitutes the entire agreement by and between the parties with respect to the subject matters hereof, and supersedes all prior understandings and agreements relating thereto. .
17.18 C hanges or Amendments to Lease. No modification or amendment shall be valid unless set forth in writing and signed by City and Tenant and approved by the Leasehold Lenders(except modifications made in accordance with section 2.2 hereof), in writing, on the terms and conditions required pursuant to this Lease. City shall cooperate in including within this Lease by suitable amendment from time to time any provision that may reasonably be requested by any Leasehold Lender or any proposed Leasehold Lender, for the purpose of allowing any such Leasehold Lender or proposed Leasehold Lender, reasonable means to protect or preserve its interest in the Tenant and/or the Premises, as applicable. City agrees to execute and deliver (and to acknowledge, if necessary, for recording purposes) any agreement necessary to effect any such amendment; provided, however, that any such amendment shall not in any way affect the Lease Term or rent under this Lease nor otherwise in any material respect adversely affect any rights o f City under this Lease.
17.19 C
umulative Remedies . The rights and remedies of the parties to this Lease, whether pursuant to this Lease or in accordance with law, shall be construed as cumulative, and the exercise of any single right or remedy shall constitute neither a bar to the exercise of nor the waiver of any other available right or remedy.
17.20 T
ime of the Essence. Time is of the essence of this Lease. Failure to comply with any time requirement of this Lease shall constitute a material breach of this Lease.
17.21 I ncorporation of Exhibits . All exhibits referred to in this Lease and any addenda, appendices, attachments, exhibits, and schedules which may, from time to time, be attached to in any duly executed amendment of this Lease are by such reference incorporated in this Lease and shall be deemed to be part of this Lease.
17.22 S
everability . Should any part of this Lease be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the validity of the remainder of this Lease which shall continue in full force and effect, provided that such remainder can, absent the excised portion, be reasonably interpreted to give the effect to the intentions of the parties.
17.23 A
mbiguities . This Lease was drafted jointly by the parties. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party does not apply in interpreting this Lease. Should any ambiguities or conflicts between contract terms and conditions contained in this Lease and its exhibits exist, the terms and conditions in this Lease shall control over its exhibits.
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17.24 Other Representations, Warranties and Covenants. Tenant represents, warrants and covenants that the following is true and correct and shall be true and correct at all times during the Term:
17.24.1 Tenant is in good standing under the laws of the State of California and is authorized to carry on and do business in the State of California as such business is now conducted and to perform its obligations under this Lease.
17.24.2 Tenant has the full right, power and lawful authority to enter into this Lease and its execution and delivery of this Lease by it or on its behalf has been fully authorized by all requisite actions.
17.24.3 Tenant has provided City with true and correct copies of documentation reasonably requested by City designating the parties authorized to execute this Lease on its behalf.
17.24.4 Tenant’s execution, delivery and performance of its obligations under this Lease will not violate any applicable laws, regulations, or rules nor to its knowledge, constitute a breach or default under any contract, agreement, or instrument to which it is a party, or any judicial or regulatory decree or order to which it is a party or by which it is bound.
17.24.5 Tenant has not made an assignment for the benefit of creditors, filed a petition in bankruptcy, been adjudicated insolvent or bankrupt, petitioned a court for the appointment of any receiver of or trustee for it or any substantial part of its property, or commenced any proceeding relating it under any reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or later in effect. There has not been commenced nor is there pending against it any proceeding of the nature described in the first sentence of this subsection. No order for relief has been entered with respect to it under the Federal Bankruptcy Code.
17.24.6 All documents, instruments, and other information delivered by Tenant to the City pursuant to this Lease are true, accurate, correct and complete to the actual knowledge of Tenant unless otherwise indicated in writing delivered concurrently with such delivery. City shall be entitled to rely upon the accuracy and completeness of the information, surveys, and reports provided by Tenant or any of Tenant’s employees, agents, subcontractors or consultants.
17.24.7 This Lease, when executed by it and delivered, shall constitute its legal, valid and binding obligation. No consent, approval, or authorization of any third person to its execution, delivery, and performance of this Lease is required, other than consents, approvals, and authorizations which have already been unconditionally given.
17.24.8 Upon its receipt of actual knowledge that any fact or condition which would cause any warranty or representation made by it pursuant to this Section is not true in all material respects, promptly give written notice of such fact or conditions to the City.
17.25 Further Assurances. Tenant covenants and agrees that it will execute such other and further instruments and documents as are or may become reasonably necessary to effectuate and carry out this Lease.
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17.26 Representation by Counsel. The parties to this Lease were represented by their respective counsel in the negotiation and execution of this Lease.
17.27 N o Merger. There shall be no merger of this Lease or any interest in this Lease nor of the leasehold estate created by this Lease, with the fee estate in the Premises, by reason of the fact that this Lease or such interest in the Lease, or such leasehold estate may be directly or indirectly held by or for the account of any person who shall hold the fee estate in the Premises, or any interest in such fee estate, nor shall there be such a merger by reason of the fact that all or any part of the leasehold estate created by this Lease may be conveyed or mortgaged in a leasehold mortgage to a leasehold mortgagee who shall hold the fee estate in the Premises or any interest of the City under this Lease.
ARTICLE 18
REPRESENTATIONS, WARRANTIES AND COVENANTS
18.1 Representations, Warranties and Covenants of City . As an inducement to Tenant to enter into and to proceed under this Lease, City warrants, represents and covenants to Tenant as follows, which warranties, representations and covenants are true and correct as of the date of this Lease:
(a) City has the right, power and authority to enter into this Lease and the right, power and authority to comply with the terms, obligations, provisions and conditions contained in this Lease;
(b) City is a California municipal corporation. The execution, performance and delivery of this Lease by City have been fully authorized by all requisite actions on the part of City.
(c) City is not the subject of a bankruptcy proceeding. (d) There are no known actions, suits, material claims, legal proceedings, or any proceedings affecting the Premises or any portion thereof, at law or in equity before any court of governmental agency, domestic of foreign.
(e) The entry by City into this Lease and the performance of all of the terms, provisions and conditions contained herein will not, or with the giving of notice or the passage of time, or both, would not, violate or cause a breach or default under any other agreements to which City is a party or by which it is bound.
(f) City is the owner of the fee simple title to the Premises free and clear of all recorded and unrecorded monetary liens, encumbrances, easements, leases, covenants, conditions, restrictions, and other exceptions to or defects in title, excepting only the following: (a) current taxes not yet delinquent; and (b) those additional title exceptions listed in the Proforma Owner ’s Policy of Title Insurance No. ______________________ issued by First American Title Company (“Title Report”), and such encumbrances approved by Tenant and recorded concurrently with the Memorandum of Lease, including, without limitation, the City Easement Agreement.
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(g) As of the Commencement Date, the Premises are not subject to any outstanding lease agreement, contract of sale, right of first refusal or purchase option, in favor of any person or entity, except Tenant. There are no (i) agreements or arrangements pursuant to which goods, services, water, equipment, labor, supplies, or any other items are being or will be furnished to the Premises, including without limitation, equipment leases, maintenance agreements, service contracts, w arranties, and management contract s, except for utilities arrangements; (ii) agreements whereby any person or entity holds any right, license, or privilege or possess or use the Premises or any portion thereof; and (iii) licensing, franchise, or permits issued or required for the ownership and/or operation of the Premises. No agreements or understanding relating to or affecting the Premises exist, except for this Lease and the agreements shown as exceptions to the Premises’ title,
(h) There are no tenants or other persons who have a lawful interest in the Premises, and no person or entity has the right to possess the Premises or portion of it. (i) City has not received any notice from any governmental agency or authority alleging that the Premises is currently in violation of any law, ordinance, rule, regulation, or requirement applicable to its use and operation. If any such notice or notices are received by City following the Commencement Date, City shall, within ten (10) business days of receipt of such notice, notify Tenant in writing. Further, no violations exist of any statutes, ordinances, regulations, or administrative or judicial orders or holdings, whether or not appearing in public records, with respect to the Premises, and present use of the Premises complies with the existing City zoning laws and ordinances.
(j) City has disclosed to Tenant all information, records, and studies maintained by City for the Premises concerning “Hazardous Materials” (as defined below). City has not received written notice from any governmental authority that the Premises or the use or operation thereof are in violation of any “ Hazardous Materials Laws” (as defined below), and to City’s knowledge, no such written notice has been issued and, to City ’s knowledge, no violation of any Hazardous Materials Laws has occurred. To City’s knowledge, no part of the Premises has ever been used by any person or entity to refine, produce, use, store, handle, transfer, process, transport or dispose of any Hazardous Materials.
As used in this Lease, the term “Hazardous Materials” means any oil or any fraction thereof or petroleum products or “hazardous substance” as defined in Section 101(14) of CERCLA (42 U.S.C. Section 9601(14) or Section 25281(h) or 25316 of the California Health and Safety Code at such time; any “hazardous waste,” “infectious waste” or “hazardous material” as defined in Section 25117, 25117.5 or 25501(j) of the California Health and Safety Code at such time; any other waste, substance or material designated or regulated in any way as “toxic” or “hazardous” in the RCRA (42 U.S.C. Section 6901, et seq.), CERCLA Federal Water Pollution Control Act (33 U.S.C. Section 1251, et seq.), Safe Drinking Water Act (42 U.S.C. Section 300(f), et seq.), Toxic Substances Control Act (15 U.S.C. Section 2601, et seq.), Clean Air Act (42 U.S.C. Section 7401, et seq.), California Health and Safety Code (Section 25100, et seq., Section 39000, et seq.), or California Water Code (Section 13000, et seq.) at such time; and any additional wastes, substances or material which at such time are classified, considered or regulated as hazardous or toxic under any other present or future environmental or other similar laws relating to the Premises, but excluding any substances or materials used in the construction, development, maintenance or
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operation of the Improvements, so long as the same are used in accordance with all applicable laws.
As used in this Lease, the term “Hazardous Materials Laws” means all federal, state, and local laws, ordinances, regulations, orders and directives pertaining to Hazardous Materials in, on or under the Premises or any portion thereof.
18.2 Representations, Warranties and Covenants of Tenant . As an inducement to City to enter into and to proceed under this Lease, Tenant warrants and represents to City as follows, which warranties, representations and covenants are true and correct as of the date of this Lease:
(a) Tenant has the right, power and authority to enter into this Lease and the right, power and authority to comply with the terms, obligations, provisions and conditions contained in this Lease;
(b) Tenant is a California limited partnership. The execution, performance and delivery of this Lease by Tenant have been fully authorized by all requisite actions on the part of the Tenant.
(c) Tenant is not the subject of a bankruptcy proceeding. (d) The entry by Tenant into this Lease and the performance of all of the terms, provisions and conditions contained herein will not, or with the giving of notice or the passage of time, or both, would not, violate or cause a breach or default under any other agreements to which Tenant is a party or by which it is bound.
18.3 Hazardous Materials.
18.3.1 Certain Covenants and Agreements. Tenant hereby covenants and agrees that:
(a) Tenant shall not knowingly permit the Premises or any portion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Materials or otherwise knowingly permit the presence of Hazardous Materials in, on or under the Premises in violation of any applicable law;
(b) Tenant shall keep and maintain the Premises and each portion thereof in compliance with, and shall not cause or permit the Premises or any portion thereof to be in violation of, any Hazardous Materials Laws;
(c) Upon receiving actual knowledge of the same Tenant shall immediately advise City in writing of:
(i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Tenant or the Premises pursuant to any applicable Hazardous Materials Laws;
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(ii) any and all claims made or threatened by any third party against Tenant or the Premises relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in the foregoing clause (i) and this clause (ii) are hereinafter referred to as “Hazardous Materials Claims”); or (iii) the presence of any Hazardous Materials in, on or under the Premises in such quantities which require reporting to a government agency.
If City reasonably determines that Tenant is not adequately responding to a Hazardous Material Claim or any condition in Section 18.3.1(c)(iii), City shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any such Hazardous Materials Claims and to have its reasonable attorney’ s fees in connection therewith paid by Tenant.
(d) Without City’s prior written consent, which shall not be unreasonably withheld or delayed, Tenant shall not take any remedial action in response to the presence of any Hazardous Materials on, under, or about the Premises (other than in emergency situations or as required by governmental agencies having jurisdiction), nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Materials Claims. (e) Tenant has conducted its own inspections, including a Phase I Environmental Assessment and Phase II Environmental Assessment (if necessary), to familiarize itself with the condition of the Premises, including the presence of any Hazardous Materials, and has, subject to the representations and warranties made by City under this Lease and/or under the AH/DDA, unconditionally accepted the condition of the Premises based on its own due diligence.
18.3.2 Tenant Indemnity. Without limiting the generality of the indemnification set forth in Section 9.1 above, Tenant hereby agrees to indemnify, protect, hold harmless and defend (by counsel selected by or otherwise approved by City) the Indemnitees from and against any and all claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of any kind, and all costs and expenses incurred in connection therewith (including, but not limited to, attorney’s fees and expenses), arising directly or indirectly, in whole or in part, out of:
(a) the failure of Tenant on or after the Commencement Date to comply with any Hazardous Materials Law relating in any way whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation or disposal of Hazardous Mate rials into, on, under or from the Premises; or
(b) any release or discharge of any Hazardous Materials into, on, under or from the Premises, first arising on or after the Commencement Date, or the presence in, on, or under the Premises of any Hazardous Materials that first occurs on the Premises after the Commencement Date.
(c) The provisions of this subsection shall survive expiration of the Term or other termination of this Lease, and shall remain in full force and effect. This indemnity obligation shall not extend to any claim to the extent arising from any Indemnitee’s gross negligence or willful misconduct. Notwithstanding anything herein to the contrary Tenant ’s liability under this
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Section 18.3 shall not extend to cover the violation of any Hazardous Materials Laws that first arise, commence or occur after the actual dispossession from the entire Premises of Tenant and all entities which control, are controlled by, or are under common control with Jamboree, except to the extent that such release of Hazardous Materials or toxic substances, or materials and/or waste therefrom were exacerbated or caused by Tenant during its occupancy of the Premises.
18.3.3 No Limitation . Tenant hereby acknowledges and agrees that Tenant ’s duties, obligations and liabilities under this Lease, including, without limitation, under subsection
18.3.2 above, are in no way limited or otherwise affected by any information City may have concerning the Premises and/or the presence on the Premises of any Hazardous Materials, whether City obtained such information from Tenant or from its own investigations.
18.3.4 C
ity Indemnity. City hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to Tenant) Tenant, its officers, board members, directors, agents, successors, assigns and employees (the “Tenant Indemnitees”) from and against any and all claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of any kind, and all costs and expenses incurred in connection therewith (including, but not limited to, attorney’s fees and expenses), arising directly or indirectly, in whole or in part, out of:
(a) the failure of City prior to the Commencement Date to comply with any Hazardous Materials Law relating in any way whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation or disposal of Hazardous Materials into, on, under or from the Premises; or
(b) any release or discharge of any Hazardous Materials into, on, under or from the Premises, first arising prior to the Commencement Date, or the presence in, on, or under the Premises of any Hazardous Materials that first occurred on the Premises prior to the Commencement Date.
The provisions of this subsection shall survive expiration of the Term or other termination of this Lease, and shall remain in full force and effect. This indemnity obligation shall not extend to any claim to the extent arising from any Tenant Indemnitee ’s gross negligence or willful misconduct.
18.4 As-Is Conveyance; Release.
18.4.1 As-Is Conveyance. Except as otherwise provided in this Lease and/or in the AH/DDA, this Lease is made “ AS IS, ” with no warranties or representations by the City concerning the condition of the Premises. City hereby agrees and acknowledges that except in the event of any fraud by City , and except for the representations by City expressly set forth herein and/or in the AH/DDA: (i) neither City, nor anyone acting for or on behalf of City, has made any representation, statement, warranty or promise to Tenant concerning the development potential or condition of the Premises; (ii) in entering into this Lease, Tenant has not relied on any representation, statement or warranty of City , or anyone acting for or on behalf of City ; (iii) all matters concerning the Premises have been or shall be independently verified by Tenant and Tenant shall lease the Premises on Tenant ’s own prior examination thereof; and (iv) Tenant is
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leasing the Premises in an “ as is ” physical condition and in an “ as is ” state of repair. If the condition of the Premises is not in all respects entirely suitable for the use or uses to which such Premises will be put, then except in the event of any fraud by City , and except for the representations by City expressly set forth herein, it is the sole responsibility and obligation of Tenant to place the Premises in all respects in a condition suitable for Tenant ’s development project, solely at Tenant’s expense.
18.4.2 General Release. Except for City ’s fraud or the breach by City of a representation, warranty, or covenant in this Lease and/or in the AH/DDA, Tenant and its owners, employees, agents, assigns and successors agree that as of the Commencement Date, Tenant shall be deemed conclusively to have released and discharged City and its agents, employees, trustees, assigns and successors, from any and all damages, losses, demands, claims, debts, liabilities, obligations, causes of action and rights, whether known or unknown, by Tenant regarding the physical condition of the Premises as of the Commencement Date, including, but not limited to, the environmental condition of the Premises.
18.4.3 W
aiver of Civil Code Section 1542. Tenant agrees that, with respect to the General Release contained in Section 18.4.2 above, the General Release extends to all matters regarding the Premises, whether or not claimed or suspected, to and including the date of execution hereof, and constitutes a waiver of each and all the provisions of the California Civil Code section 1542, which reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE
TIME OF EXECUTING THE RELEASE AND THAT, IF
KNOWN BY HIM OR HER WOULD HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WIT H THE DEBTOR
OR RELEASED PARTY.”
Tenant herein acknowledges that the effect and import of the provisions of Civil Code section 1542 have been explained to it by its own counsel. Tenant understands and acknowledges the significance and the consequence of such specific waiver of unknown claims and hereby assumes full responsibility for any injuries, damages, losses or liabilities that it may hereinafter incur from the waiver of these unknown claims.
//SIGNATURES FOLLOW ON NEXT PAGE//
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IN WITNESS WHEREOF, City and Tenant have executed this Lease as of the Effective Date.
CITY:
The City of Costa Mesa,
a California municipal corporation
By: __________________________________
Lori Ann Farrell Harrison, City Manager
Date: ____________________________
ATTEST:
___________________________________
City Clerk
APPROVED AS TO FORM:
JONES MAYER
________________________________
Counsel to the City of Costa Mesa
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TENANT:
_____________________________________ LP,
a California limited partnership,
By: ____________________ LLC,
a California limited liability company,
Managing General Partner
By: Jamboree Housing Corporation,
a California nonprofit public benefit corporation,
Manager
By:
Michael Massie, Executive Vice President
and Chief Development Officer
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EXHIBIT A
-1-
EXHIBIT A
The Land referred to herein is situated in the State of California, County of Orange, City of Costa Mesa, and described as follows:
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EXHIBIT B
FORM OF MEMORANDUM OF LEASE
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EXHIBIT B
-1-
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
__________________________, LP
c/o Jamboree Housing Corporation
17701 Cowan Avenue, Suite 200
Irvine, CA 92614
Attention: _____________________
APN: (SPACE ABOVE THIS LINE FOR RECORDER’S USE ONLY)
[To be recorded at no fee pursuant to Government Code §27383]
MEMORANDUM OF GROUND LEASE
This Memorandum of Ground Lease (“Memorandum”) is made as of __________________, ____ by and between the City of Costa Mesa, a California municipal corporation (“City”) and _____________, LP, a California limited partnership (“Tenant”).
For good and valuable consideration, receipt of which is hereby acknowledged, City hereby leases to Tenant and Tenant hires from City certain real property described on Exhibit A hereto ( “Premises”); which Premises are subject to an easement agreement recorded concurrently herewith in favor of City for drainage, egress, ingress, access and parking over the surface parking thereon. The terms and conditions of this lease are more particularly set forth in an unrecorded Ground Lease (the “Lease”) between City and Tenant dated for reference purposes as of ________________ which is hereby incorporated herein by this reference thereto. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Lease.
1. The term of the Lease ( “Lease Term”) commences on the Term Commencement Date (which is defined in the Lease as the date this Memorandum is recorded in the public records) and expires on the last day of the month in which the ninety- ninth (99th) anniversary of the Term Commencement Date occurs.
2. The Lease requires that the Premises be used for the Term for affordable housing and related uses, as more particularly set forth in the Lease.
3. This Memorandum has been executed, acknowledged and recorded solely for the purpose of providing constructive notice of the Lease. This Memorandum may be executed in any number of counterparts, and all of such counterparts so executed together shall be deemed to constitute one and the same agreement, and each such counterpart sha ll be deemed to be an original. If any inconsistency or conflict exists between the provisions of this Memorandum and the Lease, the terms, covenants and conditions of the Lease shall control. [signatures on following pages]
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EXHIBIT B
-2-
IN WITNESS WHEREOF, the parties hereto have executed this Memorandum as of the day and year first written above.
ATTEST:
City Clerk
Tenant:
__________________________________
LP, a California limited partnership,
By: ____________________ LLC, a
California limited liability company,
Managing General Partner
By: Jamboree Housing
Corporation, a California nonprofit public
benefit corporation, Manager
By:_________________________
Name: Michael Massie, Executive
Vice President and Chief Development
Officer
City:
City of Costa Mesa, a California municipal
corporation
By:
Its:
APPROVED AS TO FORM:
JONES MAYER
Counsel to the City of Costa Mesa
[SIGNATURES OF OTHER THAN COUNSEL MUST BE ACKNOWLEDGED]
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EXHIBIT B
-3-
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 ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
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 (Seal)
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EXHIBIT B
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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 ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
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 (Seal)
882/020587-0159
21179182.11 a03/12/25
EXHIBIT B
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EXHIBIT A TO MEMORANDUM OF LEASE
LEGAL DESCRIPTION OF PREMISES
The Land referred to herein is situated in the State of California, County of Orange, City of Costa Mesa, and described as follows:
882/020587-0159
21179182.11 a03/12/25
TABLE OF EXHIBITS
EXHIBIT A Legal Description of Premises
EXHIBIT B Form of Memorandum of Lease