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Home My WebLink AboutD-1869 1820 Osos Street Recorded 09/14/2010• JULIE RODEINA� San Luis Obispo Cou lerk/Recorder Recorded at the request of JE except TX & DSS RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of San Luis Obispo City Clerk 990 Palm Street San Luis Obispo, CA 93401 1 DOC#: 2010p04081 y�9 III �IIIIIIIII�� %II�IIIII 1vo FEE PER GcvrPvVAn NQ( Co Oa' SEC, G1 03 ENVIRONMENTAL INDEMNITY AGREEMENT DG 9/14/2010 3:04 PM Titles: 1 Pages: 18 Fees Taxes Others PAID THIS ENVIRONMENTAL INDEMNITY AGREEMENT is dated as of July 27 , 2010 and is between the City of San Luis Obispo ( "City "), a municipal corporation and charter city, and Depot Square LP, a California limited partnership ( "Depot Square "). City and Depot Square are collectively referred to herein as the "Parties," and each individually as a "Party." ARTICLE I. RECITALS 1.1 City is the owner of certain real property located at 1820 Osos Street in the City of San Luis Obispo (Assessor's Parcel No. 003 - 655 -009), a portion of which was exchanged with Depot Square for certain other property pursuant to a lot line adjustment recorded on SEfTEmSa ) , 2010 ("Transfer Date ") as Document # 20 I 0 0 4 q 91'7 of the official records of San Luis Obispo County, State of California, pursuant to that certain "Real Property Exchange Agreement" dated July 1, 2008, executed on July 10, 2008 (the "Exchange Agreement'). Said portion of City property transferred to Depot Square by said lot line adjustment, together with Parcel X and Parcel Y of the Upham Street abandonment according to Resolution No. 10105 (2009 Series) recorded on July 29, 2009, as Document # 2009042635 in the official records of said County, are hereinafter collectively referred to as "Real Property". The Real Property is shown in Exhibit A, which is attached hereto and incorporated herein by this reference. 1.2 As a material part of the consideration for the City's agreement to enter into the Exchange Agreement, City wishes to be released, held harmless and indemnified by Depot Square and its successors and assigns, and completely protected, to the fullest extent possible under the law, from any and all claims, liabilities and obligations associated with the physical or environmental condition of the Real Property and to have Depot Square and its successors and assigns, as transferees, accept all risks, liabilities and financial obligations arising from or relating to the physical and environmental condition of the Real Property, regardless of the nature or degree of any defect in such condition. 1.3 After allowing Depot Square a full opportunity to inspect the Real Property in whatever manner it deemed appropriate, and in order to induce the transfer of the properties, and pursuant to the Exchange Agreement, the Parties are executing this 0.00 0.00 0.00 50.00 M Depot Square Environmental Indemnity Agreement • Page 2 Environmental Indemnity Agreement ( "Indemnity Agreement ") effective as of the date first set forth above. 1.4 By this Indemnity Agreement, the Parties intend to insure that the City is insulated, to the fullest extent possible, from all risks, liabilities and financial obligations arising from or relating to the physical or environmental condition of the Real Property, including, but not limited to any contamination by Hazardous Materials, as defined below. ARTICLE II. DEFINITIONS 2.1 For purposes of this Indemnity Agreement, the following capitalized terms shall have the following meanings: , 2.1.1 The term "Environmental Expenses" shall mean all costs and expenses reasonably incurred in response to (a) a Hazardous Release; (b) an Environmental Claim; or (c) the requirements of the Environmental Laws, including but not limited to investigating, characterizing, responding to, removing or remediating Hazardous Materials existing or allegedly existing, in, on or over the Real Property. By way of example, and not limitation, it includes consulting and investigation fees, feasibility studies, repair, detoxification, closure or other clean -up costs, reasonable attorney's fees incurred (including, without limit, consultants' and attorneys' fees incurred in evaluating, reviewing and supervising the response, removal and remediation measures and in negotiating, litigating, satisfying or settling the Environmental Claims). Without limitation such costs and expenses shall be at least coextensive with the types and categories of reimbursable costs and expenses and administrative overhead recoverable by the United States Government in cost recovery actions under the Environmental Laws, including CERCLA, as defined below. 2.1.2 The term "Hazardous Materials" shall mean any substance or material, which, because of its status as a waste, or its quantity, concentration or physical or chemical characteristics, is at any time now or hereafter deemed by any federal, state or local governmental authority to pose a present or potential hazard or threat to public health, welfare or the environment, or which is regulated based on such potentially hazardous effects. The term "hazardous materials" includes, without limitation, any material or substance defined as a "hazardous" or "toxic" substance or "waste," and any pollutant or contaminant regulated under the federal or California Clean Water Act, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ( "CERCLA ") (42 U.S.C. Sections 9601 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 6901 et seq.), or pursuant to Section 25316 et seq. of the California Health and Safety Code; any material listed pursuant to Section 25140 et seq. of the California Health and Safety Code; any man -made asbestos and asbestos containing materials, and any petroleum, including, without limitation, crude oil or any fraction thereof, natural gas or natural gas liquids; or otherwise under the Environmental Laws. Depot Square Environmental Indemnity Agreement Page 3 2.1.3 The term "Hazardous Release" shall include any historic, actual or imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, storing, or disposing in, on, under or about the Real Property of any Hazardous Materials. 2.1.4 The term "City Representatives" shall mean the City of San Luis Obispo, its Council members, officers, employees, agents, contractors, and their respective successors and assigns. 2.1.5 The term "Transfer Date" shall mean SfPfi5MA R 11, 2010 [the date that the lot line adjustment document is recorded]. 2.1.6 The term "Agency" shall mean any governmental agency having jurisdiction over any Hazardous Materials located in, on, above, or under the Real Property. 2.1.7 The term "Environmental Claim" shall mean (i) any claim, demand, complaint, process, proceeding, penalty, or cause of action relating to a Hazardous Release or (ii) any action, proceeding, penalty, liability, loss, damage or cost caused by a breach of the provisions of this Indemnity Agreement. 2.1.8 The term "Environmental Laws" shall mean all present and future federal, state and local laws, regulations, ordinances, mandates, decrees or other regulation or imposition enforceable by any police powers, including those of an Agency or other branch of government, as developed, created or amended from time to time, and whether under common law, statutes, ordinances, regulations, rules, administrative rules and policies, judicial or administrative orders or decrees, and all other requirements or impositions of any Agency relating to the protection of human health or the environment. Such term includes, without limitation: the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. ( "RCRA "); the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq.; the Clean Water Act, 33 U.S.C. Sections 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Sections 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); the California Porter - Cologne Water Quality Control Act, Water Code Sections 13000 et seq. Depot Square Environmental In3�mnity Agreement • Page 4 ARTICLE III. INDEMNITY 3.1 Depot Square and its successors and assigns hereby unconditionally agree at their sole cost to indemnify, protect and to hold City Representatives harmless from, and to defend the City Representatives (with counsel selected by City) against, any and all (a) Environmental Claims; (b) Environmental Expenses; and (c) liabilities, losses, damages, fines, penalties, charges, orders, judgments or liens; to the extent any of the foregoing arise, directly or indirectly, in whole or in part out of: (i) a Hazardous Release into, through, from or upon the Real Property; or (ii) any act or omission by Depot Square in discharge of its obligations under this Indemnity Agreement, including without limit, the handling, investigation, treatment, storage, decontamination, remediation, removal, transport or disposal of any Hazardous Materials. Depot Square's liability hereunder is absolute and does not depend on whether the events described in (a), (b), or (c) resulted from any act or omission of City, or if so caused, whether City's acts or omissions were legal, negligent, or within its control. 3.2 City's rights to the indemnity and defense identified herein, and the obligations undertaken by Depot Square herein to provide such indemnity and defense, shall supersede all other agreements between the Parties as of the Transfer Date which are inconsistent with these provisions, and any contrary rights that Depot Square may have at common law or by statute are waived by Depot Square. No inspection, nor any failure by Depot Square to inspect the Real Property, nor any failure of any Party to exact any particular form of representation or warranty from any other Party, shall be construed to modify, eliminate or diminish the indemnity obligations of Depot Square hereunder. Nothing in this Indemnity Agreement is meant to affect the rights of any third party or governmental agency to proceed against any Party under any federal, state or local law. Notwithstanding the foregoing, the City's right to indemnity and defense identified herein shall not extend to any liability for an environmental condition of which the City had actual knowledge as of the date of the Real Property Exchange Agreement. ARTICLE IV. CONDITION OF PROPERTY 4.1 Prior to the Transfer Date, City may have delivered to Depot Square information or reports relating to the condition of the Real Property (collectively, the "Reports "). Depot Square acknowledges and agrees that if Depot Square acquires the Real Property, then it is acquiring the Real Property subject to any and all deficiencies, defects and other matters referred to or otherwise set forth in any Reports delivered to Depot Square or otherwise made available to Depot Square. City makes no representations or warranties with respect to the adequacy or accuracy of the Reports. City shall have no liability with respect to any matters disclosed or contained in the Reports provided to Depot Square. For purposes of this Indemnity Agreement, Depot Square shall be deemed to have actual knowledge of the contents of the Reports, and to have pursued all reasonable further diligence that any reasonably prudent person would have pursued in light of the information provided in such documents. Depot Square Environmental Indemnity Agreement Page 5 4.2 Depot Square acknowledges and agrees: (i) that, prior to the Transfer Date, Depot Square has thoroughly inspected the Real Property and observed all of the legal, environmental, zoning, land use, seismic, title, survey and physical characteristics and conditions of the Real Property and has approved of all such characteristics and conditions and by acquiring the Real Property, Depot Square waives any and all right or ability to make a claim of any kind or nature against any of the City Representatives (defined herein) for any and all deficiencies or defects in the characteristics and conditions of the Real Property which would be disclosed by an inspection; (ii) to acquire the Real Property with any and all of such deficiencies and defects, and subject to all matters disclosed by City herein or in any separate writing with respect to the Real Property; (iii) none of the City Representatives has made any representations, warranties or provided any promises or assurances of any kind whatsoever respecting the Real Property, its condition, its size, the permitted uses or the suitability of Depot Square's intended use of the Real Property other than as provided in this Indemnity Agreement; (iv) that it is purchasing (and the City is conveying) the Real Property in its present condition, "AS IS ", "WHERE IS" AND WITH ALL FAULTS, and that no patent or latent defect or deficiency in the condition of the Real Property whether or not known or discovered, shall affect the rights of City, the City Representatives, or Depot Square hereunder; (v) that any and all information and documents furnished to Depot Square by or on behalf of City relating to the Real Property, including the Reports, shall be deemed furnished as a courtesy to Depot Square and without any warranty of any kind from or on behalf of the City, (vi) that Depot Square has performed an independent inspection and investigation of the Real Property and has also investigated and has knowledge of operative or proposed governmental laws and regulations including without limitation, land use laws and regulations to which the Property may be subject; and (vi) that Depot Square shall acquire the Real Property solely upon the basis of its independent inspection and investigation of the Real Property, including without limitation, (a) the quality, nature, habitability, merchantability, use, operation, value, marketability, adequacy or physical condition of the Real Property or any aspect or portion thereof, including, without limitation, appurtenances, access, landscaping, availability of utility systems, soils, geology and groundwater, or whether the Real Property lies within a special flood hazard area, an area of potential flooding, a very high fire hazard severity zone, a wildland fire area, an earthquake fault zone or a seismic hazard zone, (b) the development or income potential of the Real Property, (c) the zoning or other legal status of the Real Property or any other public or private restrictions on the use of the Real Property, (d) the compliance of the Real Property or Depot Square Environmental In emnity Agreement Page 6 its operation with any applicable codes, laws, regulations,, statutes, ordinances, covenants, conditions and restrictions of any governmental or regulatory agency or authority or of any other person or entity, (e) the ability of Depot Square to obtain any necessary governmental approvals, licenses or permits for Depot Square's intended use or development of the Real Property, (f) the presence or absence of Hazardous Materials on, in, under, above or about the Real Property or any adjoining or neighboring property, or (g) the condition of title to the Real Property. CITY'S INITIALS: DEPOT SQUARE'S INITIALS: ARTICLE V. REPRESENTATIONS 5.1 Depot Square represents and warrants to City that: (i) Depot Square is a limited partnership created under California law duly formed, validly existing and in good standing under the laws of the State of California; (ii) this Indemnity Agreement (a) is duly authorized, executed and delivered by Depot Square, (b) does not violate any provision of any judicial order to which Depot Square is a party or to which Depot Square is subject and (c) constitutes a valid and legally binding obligation of Depot Square; (iii) Depot Square has full and complete power and authority to enter into this Indemnity Agreement and to perform its obligations hereunder; (iv) Depot Square is not presently the subject of a bankruptcy, insolvency or probate proceeding and Depot Square neither anticipates nor intends to file or cause to be filed any bankruptcy or insolvency proceeding involving Depot Square or Depot Square's assets during the pendency of this Indemnity Agreement; (v) Depot Square is a sophisticated property manager with substantial experience in acquiring assets of the same type as the Real Property and has such knowledge and experience in financial and business matters that Depot Square is capable of evaluating the merits and risks of the Real Property; (vi) Depot Square is represented by competent counsel; and . (vii) Depot Square and its agents have thoroughly inspected the Real Property, fully observed the characteristics and conditions of the Real Property, and is purchasing the Real Property subject to the terms of this Indemnity Agreement, including without limitation, Article III. The foregoing representations and warranties of Depot Square shall survive the transfer of the Real Property to Depot Square. Depot Square Environmental I9mnity Agreement Page 7 5.2 Depot Square and City each specifically acknowledge and agree that all references in this Indemnity Agreement, in any of the exhibits attached hereto and in any document, certificate or statement to be delivered by City to Depot Square hereunder, to the phrases "to City's actual knowledge," or "known to City" (whether used in the phrase "to the actual knowledge of City," "actually known to City," "City's knowledge," or in similar or other contexts): (i) shall mean the actual (not constructive or imputed) personal knowledge of the management employees of City with knowledge of the Real Property (which City representatives are limited to Mayor Dave Romero and Public Works Director Jay Walter; (ii) shall in no case mean or refer to the actual or constructive knowledge of any other City Representative; and (iii) shall in no event or circumstance impose upon City or any of the City Representatives any duty or obligation to verify, inquire or make any independent inquiry or investigation of any such representation, warranty or statement, or to otherwise investigate the facts or circumstances relating or otherwise pertinent thereto. Depot Square further acknowledges and agrees that: (i) none of the City Representatives shall be personally liable, or otherwise have any personal liability, under or in connection with this Indemnity Agreement, including without limitation, in connection with any of the representations, warranties or statements made in connection with, or pursuant to, this Indemnity Agreement; and (ii) Depot Square shall have no right to rely on, and City shall have no liability with respect to, any representation or warranty (including any future certification or statement, actually or deemed made, as to representations or warranties) which Depot Square actually knows to be inaccurate or untrue at any time prior to the Transfer Date. Any claim, action or proceeding brought by Depot Square against the City for any alleged misrepresentation or failure to disclose any material fact relating to the Real Property must be brought within one year of the Transfer Date or the same shall be deemed waived and of no further effect. Any such claim shall be limited to the recovery of direct damages. ARTICLE VI. RELEASES 6.1 Depot Square hereby agrees that the City Representatives shall be, and are hereby, fully and forever released and discharged from any and all liabilities, losses, claims (including third party claims), demands, damages (of any nature whatsoever), causes of action, costs, penalties, fines, judgments, attorneys' fees, consultants' fees and costs and experts' fees, special, indirect or consequential damages (collectively, the "Claims "), whether direct or indirect, known or unknown, foreseen or unforeseen, Depot Square Environmental Indemnity Agreement r Page 8 that may arise on account of or in any way be connected with the Real Property including, without limitation, the physical, environmental and seismic condition of the Real Property or the violation of any law or regulation applicable thereto, including, without limitation, any Environmental Claim (regardless of when it first appeared) relating to or arising from: (i) the presence of any Hazardous Release, or the use, presence, storage, release, discharge, or migration of Hazardous Materials on, in, under or around the Real Property regardless of when such Hazardous Materials were first introduced in, on or about the Real Property; (ii) any patent or latent defects or deficiencies with respect to the Real Property; and (iii) any and all matters related to the Real Property or any portion thereof, including without limitation, the condition and /or operation of the Real Property and each part thereof, provided, however, that the City Representatives shall not be released from any claim involving intentional and written misrepresentation or the direct damages arising from a breach by City of this Indemnity Agreement. Depot Square hereby waives and agrees not to commence any action, legal proceeding, cause of action or suits in law or equity, of whatever kind or nature, including, but not limited to, a private right of action under the federal superfund laws, 42 U.S.C. Sections 9601 et seq. and California Health and Safety Code Sections 25300 et seq. (as such laws and statutes may be amended, supplemented or replaced from time to time), directly or indirectly, against the City Representatives or their agents in connection with the Claims described above. In connection with all of the foregoing provisions of this section 6.1, Depot Square expressly waives the provisions of Section 1542 of the California Civil Code which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR and all similar provisions or rules of law. Depot Square elects to and does assume all risk for such Claims heretofore and hereafter arising, whether now known or unknown by Depot Square. Depot Square hereby agrees, represents and warrants that: (i) factual matters now unknown to it may have given or may hereafter give rise to Claims which are presently unknown, unanticipated and unsuspected and (ii) the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Depot Square nevertheless hereby intends to release, discharge and acquit City from any such unknown Claims. Depot Square Environmental InImnity Agreement Page 9 Without limiting the foregoing, if Depot Square has actual knowledge of (i) a default in any of the covenants, contracts or obligations to be performed by City under this Indemnity Agreement, (ii) any breach or inaccuracy in any representation of City made in this Indemnity Agreement, and /or (iii) any fact or other matter related to the Real Property, Depot Square shall be conclusively deemed to have waived any such default, breach or inaccuracy and /or fact or matter, and shall have no Claim against City with respect thereto. City has given Depot Square material concessions regarding this transaction in exchange for Depot Square's Release and all other assurances and agreements under this Section 6.1. City and Depot Square have each initialed this Section to further indicate their awareness and acceptance of each and every provision hereof. The provisions of this Section shall survive the transfer of the Real Property to Depot Square and shall not be deemed merged into any instrument or conveyance. CITY'S INITIAL DEPOT SQUA S INITIALS: ARTICLE VII. MISCELLANEOUS 7.1 Notices. All notices and other communications under this Indemnity Agreement shall be in writing and shall be deemed to have been duly given (a) on the date of delivery, if delivered personally on the Party to whom notice is given, or if made by telecopy directed to the Party to whom notice is to be given at the telecopy number listed below, or (b) on receipt, if mailed to the Party to whom notice is to be given by first class mail, registered or certified, return receipt requested, postage prepaid and properly addressed as follows: To City: City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 -3249 Attention: City Manager Facsimile: (805) 781=7109 with a copy to: City Attorney City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 -3249 Facsimile: (805) 781 -7409 Depot Square Environmental 41n?emnity Agreement ' Page 10 To Depot Square: (fill in this info) 895 Aerovista Place, Suite 100 San.Luis Obispo, Ca 93401 with a copy to: M_icha_e1.E. Pfau, Esq. 1421 State Street, Ste. L Santa Barbara, Ca 93101 7.2 Governing Law. This Indemnity Agreement shall be governed by and construed in accordance with the laws of the State of California. 7.3 Headings. The article and section headings in this Indemnity Agreement are for convenience only and shall not be used in its interpretation or considered part of this Indemnity Agreement. 7.4 Counterparts. This Indemnity Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 7.5 Effect of Indemnity Agreement. This instrument sets forth the entire agreement between the Parties concerning its subject matter. All negotiations relative to the matters contemplated by this Indemnity Agreement are merged herein and there are no other understandings or agreements relating to the matters and things herein set forth other than those incorporated this Indemnity Agreement. No provision of this Indemnity Agreement shall be altered, amended, revoked or waived except by an instrument in writing signed by the Party to be charged with such amendment, revocation or waiver. Subject to the provisions of Section 7.14, this Indemnity Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns. 7.6 Severability. If any clause or provision of this Indemnity Agreement is illegal, invalid or unenforceable under applicable present or future laws, then it is the intention of the Parties that the remainder of this Indemnity Agreement shall not be affected but shall remain in full force and effect. 7.7 Payment; Interest. All payment obligations of any Party hereunder shall be payable immediately upon demand. If not paid within sixty (60) days after demand, they shall bear interest at ten percent (10 %) per annum, unless otherwise specified herein. Where the specified interest rate exceeds the maximum rate allowed by law, the rate shall be deemed restated at the maximum legal rate. 7.8 Survival. Unless otherwise specified in this Indemnity Agreement, the Parties hereby acknowledge and agree that the rights and obligations of each Party Depot Square Environmental Indemnity Agreement • Page 11 under this Indemnity Agreement shall survive any transfer of title to any portion of the Real Property. 7.9 Independent Obligations. Each Party's_ obligations hereunder are independent of any or all of its other obligations to any other Party, and each Party may enforce any of its rights hereunder independently of any other right or remedy that it may at any time hold. 7.10 No Waiver. No failure or delay on the part of any Party in exercising any right, power or remedy may be, or may be deemed to be, a waiver thereof; nor shall any single or partial exercise of any right, power or remedy preclude the further exercise thereof. Any change in the rights and remedies of the Parties shall be by written agreement, executed by each Party; it shall not arise by conduct or implication. 7.11 Attorney's Fees. If any dispute arises out of or pertains to this Indemnity Agreement, the prevailing Party shall be entitled to reasonable attorney's fees and costs as the court may determine, regardless of whether the matter is tried to judgment. 7.12 Binding Nature. This Indemnity Agreement and the terms, covenants and conditions hereof shall be binding upon and inure to the benefit of the Parties, the City Representatives, and their respective successors and assigns. 7.13 Third Party Beneficiaries. The Parties hereby expressly acknowledge and agree that this Indemnity Agreement is made and entered into for the express protection and benefit of the Parties hereto, and those designated in this Indemnity Agreement and no other party or entity whatsoever is a third party beneficiary hereof. 7.14 Jurisdiction. The Parties hereby expressly consent to, and will not contest, the exercise of jurisdiction by a competent court of the State of California. 7.15 Construction. Whenever the context requires, all terms used herein in the singular shall be construed in the plural and vice versa, and each gender shall include each other gender. 7.16 No Party Deemed Drafter. Each Party participated in the preparation of this Indemnity Agreement personally and with the benefit of counsel. If this Indemnity Agreement is ever construed by a court of law or equity, such court shall not construe this Indemnity Agreement or any provision hereof more harshly against any Party by virtue of its role as drafter. 7.17 Time is of the Essence. Each Party recognizes that time is of the essence in the performance of this Indemnity Agreement. Depot Square Environmental Inde Y Agreement A reement • Page 12 IN WITNESS WHEREOF, the Parties hereto have caused this Indemnity Agreement. to be duly executed as of the date first above written. CITY OF SAN LUIS OBISPO A Municipal Corporation and Charter City By: _ Title: Mayor David F. Romero APPROVED AS n Thristine Dietrick ity Attorney F. DEPOT SQUARE LP A California Limited Partnership By: zz/—� Hami 3 arshall, Agent for Owner APPROVED AS TO FORM: Michael Pfau, Attorney for Depot Square NOTE: Mayor and Depot Square's signatures must be notarized. Depot Square Environmental Indemnity Agreement Page 12 IN WITNESS WHEREOF, the Parties hereto have caused this Indemnity Agreement to be duly executed as of the date first above written. CITY OF SAN LUIS OBISPO A Municipal Corporation and Charter City By: Title: Mayor David F. Romero APPROVED AS T iristine Dietrick_ Attorney DEPOT SQUARE LP A California Limited Partnership By: Hami e�ar,,'shall, Agent for Owner APPROVED AS TO F Michael Pfau, Attorney for Depot S ware NOTE: Mayor and Depot Square's signatures must be notarized. rlNlpHllll!'�IIN��Ih��i�� a y Of Sn cU luil oBispo �� sso Palm Street, San Luis Obispo, C.spo„�.s STATE OF C_ ALIFORNIA ) )ss COUNTY OF SAN LUIS OBISPO ) On July 27, 2010, before me Elaina Cano, City Clerk, personally appeared David F. Romero, Mayor, CITY OF SAN LUIS OBI PO, who proved to me on the basis of satisfactory evidence to be the person whose name(p) subscribed to a within instrument and acknowledged to me that he /s a /th y executed the same in his* /Oir authorized capacity(ie , and that by s/her/th signature(gf on the instrument the person, or the entity upon bdhalf of which the person�4acted, 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 City Clerk (Seal) The City of San Luis Obispo is committed to include the disabled in all of its services, programs and activities. Telecommunications Device for the Deaf (805) 781 -7410. CALIFO R.NIA ALL-PURPOSE ACKNOWLEDGMENT :�i�G�rG1.a� 3S�iG•� l'av�•as^ �iA3c��v�t��< ��t✓�a�SG�S��G•'»G ��:�k�a Gov.» mu. ."I . State of California County of fo Ja/w LV"� S &� S ?� o p I On U"S� U s 0 before me, ` t Date C' (� � sere Insert Name and Title of the Officer personally appeared ��'` 15 J ' S y`u^ Names) of Signer(s) Description of Attached Document - I Title or Type of Document: Document Date: _� """ -I 2� i ?,b 10 Number of Pages: Z Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual • Corporate Officer —Title(s): — ❑ Partner-0 Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER ... ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT _OF.SIGNER_ 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 913132402 • www.NabonalNotaryorg Item #5907 Reorder: Call Toll -Free 1- 800 - 876 -6827 who proved to me on the basis of satisfactory evidence to be the person whose name() is /a/e subscribed to the within instrument and acknowledged to me that he /s / e executed the same in his/he(r/tWeir au horized capacity(), and that by hi"r4eir signature( on the instrument the person(s , or the entity upon behalf of which the person( acted, executed the instrument. ELIZABETH MYFIITE Caandssion O 1B4l 3! I certify under PENALTY OF PERJURY under the laws Ivry Public - California z Lr*A of the State of California that the foregoing paragraph is San Lids Obispo County = Com- M= 7, 2013 true and correct. WITNESS my hand and official seal. Signature sqv,_� I I - Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document.. Description of Attached Document - I Title or Type of Document: Document Date: _� """ -I 2� i ?,b 10 Number of Pages: Z Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual • Corporate Officer —Title(s): — ❑ Partner-0 Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER ... ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMBPRINT _OF.SIGNER_ 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 913132402 • www.NabonalNotaryorg Item #5907 Reorder: Call Toll -Free 1- 800 - 876 -6827 Depot Square Environmental Indemnity Agreement Page 13 Beneficiary's Consent to Environmental Indemnity Agreement hnw�t can Conk is the Beneficiary under Deed of Trust dated Ste► a a � , recorded Q u a 2- ')-00 e as Instrument Number lac �� c � 3 gs6 3 of Offici ecords, in the Office of the County Recorder of the County of San Luis Obispo, State:of California. The Deed of Trust encumbers the real property described in the attached "Environmental Indemnity Agreement" (The "Agreement "). As the Beneficiary of said Deed of Trust, Beneficiary hereby consents to the execution and recordation of the Agreement, and agrees that upon recordation of said Agreement, Trustee's and Beneficiary's interests in said real. property shall be subordinate to the Agreement. -AmcairaN f1f1AfCiPLr BANK Date Beneficiary ALL SIGNATURES MUST BE NOTARIZED. BENEFICIARY MUST SIGN STATEMENT. TRUSTEE CANNOT SIGN ON BEHALF OF BENEFICIARY. • C, CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT �5,.- �5.��G•'��G -za..• �7a,' - �afGaS ,��•G3a.'�,�7>•G�a�G�'�.= >e��a• - '�..��4•�iG�'�•�-�a•�'�iG��G•'• •�sG•'�.v!�asG•-yG•�,,i' mar- �sG�5.-' �a�' v��G' �a��i..- y. � -�ar�-�SG•7iG35.�7R.- ��'��G��.i State of • • • r s On Q a1, aolC� before me, Z. ►^� � n,,JV Date - - - 'Here Insert Name and Title of the Officer personally appeared Name(s) of Signer(s) 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 KELLI J. BLACKBURN capacity(ies), and that by his/her /their signature(s) on the Commission 1853133 Notary Public - California z instrument the person(s), or the entity upon behalf of z San Luis Obispo County which the person(s) acted, executed the instrument. My Comm. Expires Jun B. 2013 I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 -Chatsworth, CA 913132402 • www.NationalNotaryorg Item #5907 Reorder: Call Tall -Free 1 -800- 876.6827 WITNESS my hand and official seal. 1 Signature Place Notary Seal Above Sig t, ture of Notary Public. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual Olndividual ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General _ El Partner — El Limited El General _ ❑ Attorney in Fact - - ❑ Attorney in Fact • ❑ Trustee Top of thumb here ❑ Trustee. Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 -Chatsworth, CA 913132402 • www.NationalNotaryorg Item #5907 Reorder: Call Tall -Free 1 -800- 876.6827 m 0 6I O� �O Z D Q Z LEGEND H7LH-AREA TO BE DE SQUARE BY LLA SCALE -UPHAM STREET ABANDONMENT -AREA TO BE DEEDED TO DEPOT 0 25 50 100 DATE:1 /21/2010 SQUARE BY LLA 1 INCH = 50 FEET EXHIBIT A PAGE 1 OF 1 JOB NO.: 562 -01 612 CLARION COURT ENVIRONMENTAL INDEMNITY DRAWING:RS WEEmma,. SAN LUISOBISPO.CA93401 AGREEMENT DRAWN BY. MM T 805 544294 5 F BO" -4294 CITY OF SAN LUIS OBISPO DATE: 112112010 www.wallacegrwp.us COUNTY OF SAN LUIS OBISPO CA WALLACE GROUP END OF DOCUMENT