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HomeMy WebLinkAbout8.1 Attmt 2 Off-Site Parking Agreement efi? ORIGINAL PARKING LICENSE AND INDEMNITY AGREEMENT P4 05-au This Parking License and Indemnity Agreement (this "Agreement"), is made as of July 2, 2008, by and between WALTON CWCA SIERRA 18, L.L.C., a Delaware limited liability company ("Licensor"), whose address is c/o Walton Street Capital, LLC, Attn: Brian T. Kelly, Principal, 901) North Michigan Avenue, Suite 1900, Chicago, IL 60611 with copies to c.1o Colliers International; 360 Campus Lane, Suite 101, Fairfield, CA 94534, Attn: Property Manager, and THE WELL CHRISTIAN COMMUNITY, a California non-profit organization ("Licensee"), whose address is 6533 Sierra Lane, Dublin, California 94568. WHEREAS, Licensee has requested a license from Licensor to use certain portions of the parking areas located at 6591 Sierra Lane, Dublin, California and 6723 and 6761 Sierra Curt, Dublin, California located in the Dublin, California Sierra Trinity Business Park (collectively, the "Property") for parking the automobiles of Licensee's employees, congregation members, invitees and other Church att,-ndees of Licensee's property located adjacent to the Property located at 6533 Sierra Lane, Dublin, California (the "C hurch Property"); and WHEREAS, the Licensor has agreed to grant Licensee such license upon the teats and conditions set out in this Agreement. NOW, THEREFORE, in co nsideration of the covenants and agreemc nts herein contained and for good and valuable consideration, the receipt ajld sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. License. Licensor hereby grants to Licensee a non-exclusive license, in common with tenants and other occupants of the Property and such tenants' and occupants' employees, customers, agents, contractors and invitees, to use the parking area at the Property shown outlined on Exhibit A attached hereto (the "Designated Parking Area") on Sundays between the hours of 6 a.m. to 5:00 p.m. (the "Permitted Hours"). Licensor may change said licensed parking area from time to time upon not less than five (5) days' prior written notice to Licensee, in which case the substituted parking ar.-a shall thereupon be deemed the Designated Parking Area hereunder. Licensee may use the Designated Parking Area solely for parking automobiles of Licensee's employees, congregation members, invitees and other attendees who attend church services at the Church Property. In no event shall overnight parking be permitted in the Designated Parking Area, nor shall the Designated Parking Area be used to perform automobile repairs or maintenance or for any other purpose other than parking of passenger automobiles during the Permitted Hours. In no event shall parking outside the Designatec. Parking Area be permitted and in no event shall Licensee be permitted to park in any area or manner which blocks a fire lane or the access of tenants of the Property to the portions of the Property beyond the Designated Parking Area. Licensee's right to use the Designated Parking Area shall be subject to such rules and regulations as tray be promulgated by Licensor from time to time upon prior written notice to Licensee. Licensee acknowledges t iat tenants and other occupants of and visitors to the Property have access to the parking facilities of the Property, inch ding the Designated Parking Area, and Licensor does not guarantee the availability to Licensee of the parking spaces in the Designated Parking Area. Such parking spaces shall be available to al l permitted users thereof on a first come first served basis. Without limiting the foregoing, in no event shall Licensor be liable to Licensee for any loss or damage, claim or liability by reason of the unavailability of any parking spaces in the Designated Parking Area, nor shall Licensee be entitled to use any other parking spaces in the parking facilities of the Property by reason of any such unavailability. 2. License Fee/Attom3y's Fees. No license fee shall be payal:le by Licensee for the license granted hereunder. Notwithstanding the foregoing, upon Licensor's execution and delivery of this Agreement, Licensee shall pay to Licensor the amount of $ j ?00 - , which represents the reascnable out of pocket costs (including attorney's fees) incurred by Licensor for Licensor's preparation and delivery o f this Agreement. 3. Term. The term of this Agreement and the license granted hereunder shall commence on the date of this Agreement first set forth above and shall continue for a term of one (1) year (the "Term"); provided, however, that the Agreement shall automatically renew for one-year renewal terms unless Lie -nsee or Licensor sends a notice to the other party indicating its unwillingness to renew the Term (or renewal term) or or before thirty (30) days prior to the end of the Term or renewal term, as applicable. - I - Initials SF1 28325710.3 ATTACHMENT 2 4. Waiver and Indemni The license provided for hereir. is solely for the accommodation of Licensee, and Licensor assumes no responsibility or liability for death ornijury to persons or loss or damage to property from any cause whatsoever with respect to the Designated Parking Area or any other portion of the Property, including adjoining streets, sidewalks, driveways, property and passageways, or the use thereof by Licensee or Licensee's employees, congregation members, invitees, any church attendees (collectively, the "Licensee Parties") or otherwise arising out of the use of the Designated Parking Area by any of the Licensee Parties, and Licensee hereby waives any and all claims against Licensor and its agents, employees, su,-cessors, assigns, members, partners, shareholders, tenants and contractors (collectively, the "Licensor Parties") arising out of or in connection with any such death, injury, loss or damage. To the maximum extent permitted by law, Licensee shall indemnify, defend (by counsel reasonably acceptable to Licensor) and hold harmless Licensor and the other Licensor Parties from and against any and all injury, loss, costs, expenses, claims or damage (including reasonable attorney's fees and disbursements) to any person or property arising from, related to, or in connection with the use of the Designated Parking Area by any of the Licensee Parties; provided, however, that the foregoing indemnity shall not apply to the extent any such injury, loss, costs, expenses, claims or damage are caused by the gross negligence or willful misconduct of the party seeking such indemnification. This indemnification shall survive the expiration or earlier termination of this Agreement. 5. Insurance. License.- shall keep in force throughout the Tenn: (a) a Commercial General Liability insurance policy or policies to protect the Licensee against any liability to the public or to any invitee of Licensee or Licensor incidental to the use of or resulting from any accident occurring in er upon the Property with a limit of not less than $1,000,000 per occurrence and not less than $2,000,000 in the annual aggregate, or such larger amount as Licensor may prudently require from time to time, covering bodily injury and property damage liability and $1,000,000 products/completed operations aggregate; and (b) Business Auto Liability covering owned, non-owned and hired vehicles with a limit of not less than $1,000,000 per accident. The ?Lforesaid policies shall: (i) be provided at Licensee's expense; and (ii) name the Licensor, WCV Commercial Properties, Inc., Colliers Bennett & Kahnweiler Inc. and Colliers International Management, Inc. as additiona insureds. A certificate of Liability insurance on shall be delivered to Licensor upon the date of this Agreement ar d at least thirty (30) days prior to each renewal of said insurance 6. Maintenance and Repair of Property. If any portion of the Property requires maintenance or repair as result of Licensee's or any other o f the Licensee Parties' use of the Designated Parking Area, then Licensee agrees to reimburse Licensor within thirty (30) days of Licensor's demand for any expenses which Licensor may incur for such maintenance or repair, plus interest from the date of expenditure- by Licensor at a rate of ten percent (10%) of the cost incurred by Licensor. 7. Parkine Monitors. Licensee shall engage at least two (2) parking monitors to monitor the Property during the Permitted Hours to ensure that there are no parking conflicts or prohibited parking. 8. Termination. Notwithstanding anything contained herein to the contrary (a) either party shall have the right, for any reason or no reason at all, to terminate this Agreement z rid the license granted hereunder by giving at least thirty (30) days' prior written notice of such earlier termination to the other party, (b) in the event Licensee defaults under this Agreement, Licensor shall have the right to terminate this Agreement immediately by giving written notice of such earlier termination to Licensee, and (c) if Licenser should sell the Property, this Agreement shall terminate effective simultaneously with the sale of the Property unless the transferee of the Property assumes in writing the obligations of Licensor under this Agreement. 9. Miscellaneous. Any notice or document required or permitted to be delivered under this Agreement shall be addressed to the intended recipient, by fully prepaid regist;red or certified United States Mail return receipt requested, or by reputable independent contract delivery service furnishing a written record of attempted or actual delivery, and shall be deemed to be delivered when tendered for delivery to the addressee at its address set forth above or at such other address as it has then last specified by written notice to the other party. The license granted herein is personal to the Licensee originally named herein and may not be transferred to or utilized by any successor to or assignee or other transferee of such Licensee. Licensee shall not record or register this Agreement or a short form memorandum hereof. The failure of either party to enforce any provisions of this Agreement shall not be deemed a waiver or limitation of that party's right to sr bsequently enforce and compel strict compliance with every provision of this Agreement. If any part or parts of this Agreement shall be held SF1 28325710.3 C -)Z -2_ Initials unenforceable for any reason, the remainder of this Agreement shall continue : n full force and effect. The covenants and conditions contained in this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. No modification of this Agreement shall be effective unless the same is in writing and executed by both Licensor and Licensee. This Agreement constitutes the entire agreement between the parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of California. In the event of litigation, the prevailing party shall be entitled to court costs and attorney fees. 10. Limitation of Licensor's Liability. Redress for any claim against Licensor under this Agreement shall be limited to and enforceable only against and to the extent of Licensor's interest in the Property. The obligations of Licensor under this Agreement are not intended to be and shall not be personally binding on, nor shall any resort be had to the private properties of, any of its or its investment manager's trustees, directors, officers, partners, beneficiaries, members, stockholders, employees, or agents, and in no case shall Licensor be liable to Licensee hereunder for any lost profits, damage to business, or any form of sp,;cial, indirect or consequential damages. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written. LICENSOR: LICENSEE: WALTON CWCA SIERRA 18, L.L.C., THE WELL CHRISTIAN COMMUNITY A Delaware limited liability company A California non.-profit organization By: WCV Commercial Properties fnc., An Illinois corporation Its Autho ' ent h By: By Name: Dwain T. Berry J Name: Evan L. Simmons Title: Senior Asset Manager Title: Overseer of Ministry Operations -3- SFI 28325710.3 EXHIBIT A Designated Parking Area SR 28325710.3 Initial - 0?