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HomeMy WebLinkAboutAGENDA REPORT 2017 1206 CCSA REG ITEM 10M ITEM 1_ ig• -e 0201a .fPrj1W._ MOORPARK CITY COUNCIL ' ' - AGENDA REPORT TO: Honorable City Council FROM: David A. Bobardt, Community Development Directori DATE: November 21, 2017 (CC Meeting of 12/6/2017) SUBJECT: Consider City Sign Agreement and Conditions, Covenants and Restrictions by and between NLA 14339, LLC and the City of Moorpark for Property at 14339 White Sage Road BACKGROUND/DISCUSSION On July 19, 2017, the City Council adopted Resolution No. 2017-3614, approving Modification No. 2 to Commercial Planned Development Permit No. 2004-03 and Conditional Use Permit No. 2016-05 for a 48-foot high wireless communication tower at 14339 White Sage Road. One of the conditions of approval was as follows: Prior to issuance of a building permit for the wireless communications facility, the property owner and City shall enter into an agreement to provide City Welcome signage on the tower at the applicant's expense including perpetual maintenance, with a design, materials, colors, and illumination to be reviewed and approved by the City Council. Any future change to the City Welcome signage would require City Council approval. The City Attorney's Office has drafted an agreement between the City and Property Owner (attached) that ensures that the City Welcome signage would be constructed and installed at the expense of the owner (NLA 14339 LLC) or tenant (Verizon Wireless) on the top of three sides of the tower (not on the side facing the building), and that the tower structure would be constructed in compliance with Building Code, as most recently amended for telecommunication towers. The City Welcome signage would be maintained by the owner or tenant for the life of the tower, however, the City would have the right to update the signage every 5 years at their expense. It should be noted that there is a Deed of Trust from the bank on title for the subject property. Accordingly, the agreement includes text in the body of the Agreement and then a sample subordination document by which staff is seeking to have the bank subordinate its Deed of Trust to this agreement so that if there is a foreclosure on the Deed of Trust, this Agreement is not wiped out. 657 Honorable City Council December 6, 2017 Page 2 STAFF RECOMMENDATION Approve City Sign Agreement subject to final language approval by the City Manager and City Attorney. Attachment: Draft City Sign Agreement • S:\Community Development\DEV PMTS\C U P\20161CUP 2016-05 Verizon Wreless\Agenda Reports\20171206 CC Rpt docx 6 5 8 DRAFT RECORDING REQUESTED BY, AND WHEN RECORDED RETURN TO: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Clerk With a copy to: NLA 14339, LLC 14349 White Sage Rd. Moorpark, CA 93021 Attn: Tom Schlender APN: 513-0-050-315 Exempt from recording fees under California Government Code Section 27383. CITY SIGN AGREEMENT AND CONDITIONS, COVENANTS AND RESTRICTIONS This CITY SIGN AGREEMENT AND CONDITIONS, COVENANTS AND RESTRICTIONS (this "Agreement") is dated as of , 2017, and is entered into by and between NLA 14339, LLC, a Delaware limited liability company ("Owner") and the CITY OF MOORPARK, a municipal corporation ("City"). RECITALS A. Owner owns the land described on Exhibit "A" and all improvements thereon (the "Property"). B. Owner and Los Angeles SMSA Limited Partnership (dba "Verizon Wireless") ("Tenant") plan to enter into or have executed a ground lease called "Land Lease Agreement" ("Ground Lease") for the portion of the Property described on Exhibit "B" ("Leased Premises") which will permit Tenant to construct a four-sided tower structure thereon for cellular telecommunications purposes, (together with any replacements thereof constructed by or for Tenant or Owner, collectively the "Tower"). C. Owner has applied for a Zoning Ordinance Amendment No. 2017-04 and Modification No. 2 to Commercial Planned Development Permit No. 2004-03, and Tenant has (with Owner's consent) applied for Conditional Use Permit No. 2016-05 to develop the Property. D. City has required as a condition of approval of Modification No. 2 to Commercial Planned Development Permit No. 2004-03 and Conditional Use Permit No. 2016-05, that Owner execute, acknowledge and deliver this Agreement to City. 659 CC ATTACHMENT DRAFT E. This Agreement is to be recorded in order to evidence the Modification No. 2 to Commercial Planned Development Permit No. 2004-03 and Conditional Use Permit No. 2016-05 and the permit condition and provides that Owner provide and maintain, or cause Tenant to provide and maintain, certain City signs on the Tower, to maintain such signs for as long as the Tower exists, that Owner shall maintain such signs after the expiration or earlier termination of the Lease, and that this Agreement may not be subject or subordinate to any deeds of trust or other liens or to any ground lease or other agreement which would conflict with the terms hereof. F. In 2005, the City entered into a Development Agreement with NLA 118, LLC that applies to the Property and required, in Section 6.10 of that Development Agreement, that the owner provide an easement to the City for a "City Welcome Sign" and to pay the City $25,000 to construct that sign. The obligations of Section 6.10 of the 2005 Development Agreement have been satisfied and those obligations are separate from the obligations provided in this Agreement. NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: AGREEMENT 1. Installation and Renovation of City Signs. Owner shall install, or shall cause Tenant to (i) install City signs as described on Exhibit "C" at the locations on the Tower that are also described on Exhibit"C", at Owner's or Tenant's cost and expense before the Tower is used or operated; and (ii) update/renovate the City signs as requested by City in writing within sixty (60) days after the applicable request, at no cost to City, not more than once every five (5) calendar years after the date of this Agreement. City may update/renovate the City signs, at City's cost, at any time and from time to time. If Owner fails to comply with item (i) or (ii) above with respect to a City sign, the Owner shall pay to City the sum of One Hundred and No/100 Dollars ($100.00) for the applicable sign per day as liquidated damages until such failure is cured. IF OWNER FAILS TO TIMELY COMPLY WITH ITEM (i) OR (ii) CITY WILL BE DAMAGED AND WILL BE ENTITLED TO COMPENSATION FOR THOSE DAMAGES, BUT SUCH DAMAGES WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE, AND OWNER DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH OWNER MIGHT BE LIABLE. CITY AND OWNER ALSO WISH TO AVOID THE COSTS AND LENGTHY DELAYS THAT WOULD RESULT IF CITY FILED A LAWSUIT TO COLLECT ITS DAMAGES. CONSEQUENTLY, OWNER AND CITY AGREE THAT THE PER DIEM SUM DESCRIBED ABOVE IS A REASONABLE ESTIMATE OF CITY'S DAMAGES AND SHALL BE RETAINED BY CITY AS LIQUIDATED DAMAGES AS CITY'S SOLE AND EXCLUSIVE DAMAGES REMEDY (BUT WITHOUT LIMITING THE CITY'S OTHER REMEDIES). CITY AND OWNER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS. -2- 660 DRAFT THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO CITY PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671. CITY'S INITIALS OWNER'S INITIALS 2. Tower Construction. Owner shall cause Tenant to construct the Tower in compliance with the City's adopted version of the California Building Code, which includes amendments for cellular tower construction contained in City of Moorpark Ordinance No. 456 relating to earthquake hazard reduction for telecommunication and broadcast towers. 3. Maintenance. Owner shall, or shall cause Tenant to, maintain and repair the Tower and Signs in good condition and repair at all times. Additionally, Owner shall obtain and pay for electricity to illuminate the Signs.. If Owner fails to comply with its maintenance or repair obligations for a City sign, then Owner shall pay to City the sum of One Hundred and No/100 Dollars ($100.00) per day for the applicable sign as liquidated damages until such failure is cured. IF OWNER FAILS TO COMPLY WITH ITS MAINTENANCE OBLIGATIONS, CITY WILL BE DAMAGED AND WILL BE ENTITLED TO COMPENSATION FOR THOSE DAMAGES, BUT SUCH DAMAGES WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO DETERMINE, AND OWNER DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH OWNER MIGHT BE LIABLE. CITY AND OWNER ALSO WISH TO AVOID THE COSTS AND LENGTHY DELAYS THAT WOULD RESULT IF CITY FILED A LAWSUIT TO COLLECT ITS DAMAGES. CONSEQUENTLY, OWNER AND CITY AGREE THAT THE PER DIEM SUM DESCRIBED ABOVE IS A REASONABLE ESTIMATE OF CITY'S DAMAGES AND SHALL BE RETAINED BY CITY AS LIQUIDATED DAMAGES AS CITY'S SOLE AND EXCLUSIVE DAMAGES REMEDY (BUT WITHOUT LIMITING ANY OF THE CITY'S OTHER REMEDIES). CITY AND OWNER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671. CITY'S INITIALS OWNER'S INITIALS 4. Term. This Agreement shall continue for as long as the Tower exists, and shall survive the expiration or earlier termination of the Ground Lease for so long as the Tower exists. -3- 6 61 DRAFT 5. Property Taxes and Assessments. Owner shall pay (or shall cause Tenant to pay) all property taxes and assessments on the Leased Premises. 6. Indemnity. Owner shall defend, indemnify, with counsel of the City's choice, and hold harmless, the City and its officers, employees and agents, from and against any and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments arising out of, or resulting in any way from, the performance of Owner's obligations hereunder, or the performance thereof by Tenant on Owner's behalf and for the construction or use of the Tower. In addition, Owner shall defend, indemnify, with counsel of the City's choice, and hold harmless, the City and its officers, employees and agents, from and against any action or proceeding to attack, review, set aside, void or annul this Agreement, or any provision thereof, the environmental documents prepared and approved in connection with the approval of the Project, or any modifications thereto, or any other subsequent entitlements for the project and including any related environmental approval. Owner's obligations under this section shall survive the expiration of this Agreement. 7. Terms of this Agreement as Covenants Running With the Land: Successors and Assigns. The terms of this Agreement constitute covenants running with the land which bind the Owner's fee interest in the Leased Premises, and shall be binding upon all successors to any portion of or interest in said fee interest. 8. Violation of this Agreement. Should Owner fail to perform the obligations imposed by this Agreement, then in addition to any other rights or remedies at law or in equity, City shall have the right to enter upon the Leased Premises to cure the default and all costs and expenses incurred by City to cure the default shall be paid by Owner within ten (10) days after written demand from City with evidence of the costs and expenses. The foregoing shall not limit City's other rights and remedies for any such failure, including without limitation its rights and remedies for any violations of permits or applicable laws. 9. Attorneys' Fees. If any legal action or other proceeding is brought for the enforcement or interpretation of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to its/their actual attorneys' fees and other costs incurred in that action or proceeding, in addition to any other relief to which it/they may be entitled. 10. Governing Law and Jurisdiction. This Agreement is made under, and shall be construed in accordance with, the substantive law of the State of California without regard to choice of law principles. Any action brought to interpret or enforce any term or provision hereof shall be filed and maintained solely in a court of competent jurisdiction situated in one of the following counties, as mutually agreed to by the Parties: Ventura, Santa Barbara, Los Angeles, Orange or Riverside. 11. Rules of Construction. The Parties, including their counsel, have participated in the preparation of this Agreement, and this Agreement is the result of the joint efforts of the Parties. This Agreement has been accepted and approved as to its final form by all Parties and upon the advice of their respective counsel. Accordingly, any uncertainty or ambiguity existing in this Agreement shall not be interpreted against any Party as a result of the manner of the -4- 6 6 2 DRAFT preparation of this Agreement. Each Party to this Agreement agrees that any statute or rule of construction providing that ambiguities are to be resolved against the drafting Party shall not be employed in the interpretation of this Agreement and are hereby waived. 12. Severability. Any provision of this Agreement that is declared or determined by a court of competent jurisdiction to be prohibited or otherwise held invalid, void, or unenforceable shall be ineffective only to the extent of such prohibition or invalidity, and shall not invalidate or otherwise render ineffective any of the remaining provisions hereof. Notwithstanding the foregoing, if the provisions of Section 2, 3, 4, or 6 of this Agreement are declared invalid, void or unenforceable, such determination shall not be severable from the rest of the Agreement and the entire Agreement shall become void and unenforceable. 13. Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings of the parties. No supplementation, modification, waiver or termination of this Agreement shall be binding unless by a written instrument by the City and the then-current owner(s) of the Leased Premises, and recorded in the office of the Ventura County Recorder. The foregoing shall not limit City's rights and remedies for any violations of permits or applicable laws. 14. Amendments or Modifications. This Agreement may be amended or modified by the mutual consent and agreement of the Parties in writing. 15. Effective Date. This Agreement shall become effective on the date that both Parties have executed the Agreement. 16. Headings. The headings of sections of this Agreement are inserted solely for the convenience of reference and are not a part of and are not intended to govern, limit, or aid in the construction or interpretation of any term or provision hereof. 17. Counterparts. This Agreement may be executed in one or more separate counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 18. Time of Essence. Time is of the essence of every provision hereof in which time is a factor. 19. Notices. All notices and demands shall be given in writing by certified mail, postage prepaid, and return receipt requested, or by reputable overnight messenger. Notices shall be considered given upon the earlier of(a) one business day following deposit or delivery with a nationally recognized overnight courier delivery charges prepaid, or (b) upon delivery or attempted delivery as shown on the return receipt if sent by certified mail. Notices shall be addressed as provided below for the respective party; provided that if any party gives notice in writing of a change of name or address, notices to such party shall thereafter be given as demanded in that notice and provided, further, that notices to successors-in-interest shall be given as directed by such successors-in-interest: _5_ 663 DRAFT The City: City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Attn: City Manager Owner: NLA 14339, LLC 14349 White Sage Rd. Moorpark, CA 93021 Attn: Tom Schlender 20. No Liens. Owner hereby represents to City that the Property is not subject to any deeds of trust or other liens except for liens for property taxes and assessments not yet due and except for the deed of trust that is being subordinated to this Agreement pursuant to the attached Subordination of Deed of Trust. 21. Effective Ground Lease. Owner's obligations hereunder are not conditioned upon the execution of the Ground Lease. 22. Removal of Signs. Upon expiration or earlier termination of the Ground Lease, Owner shall remove or cause Tenant to remove all signs on the Tower within thirty (30) days. IN WITNESS WHEREOF, this Agreement has been executed to be effective as of the date first written above. OWNER: CITY: NLA 14339, LLC CITY OF MOORPARK By: By: Tom Schlender, Janice S. Parvin Manager Mayor Attest: Maureen Benson, City Clerk -6- 6 6 4 DRAFT 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 Ventura ) 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) _7_ 665 DRAFT 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 Ventura ) 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 signatures) 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) -8- 6 6 6 DRAFT EXHIBIT "A" OWNER'S PROPERTY 14339 White Sage Road 93021, in the City of Moorpark, County of Ventura, State of California (APN: 513-0-050-315), more particularly described as follows: PARCEL A: PARCEL 2 OF PARCEL MAP NO. 5532, IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, AS SHOWN ON A PARCEL MAP FILED IN BOOK 65 PAGES 7, 8 AND 9 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT ONE-HALF OF 24/40THS INTEREST OF ALL OIL AND MINERAL RIGHTS BELOW 500 FEET FROM THE SURFACE, BUT WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESERVED BY VIVIAN AGOURE ESCALLIER, ET AL., IN DEED RECORDED SEPTEMBER 11, 1963 IN BOOK 2390 PAGE 306, OF OFFICIAL RECORDS. ALSO EXCEPT ONE-HALF OF 13/40THS INTEREST OF ALL OIL AND MINERAL RIGHTS BELOW 500 FEET FROM THE SURFACE, WITHOUT THE RIGHT OF ENTRY, AS RESERVED BY PETER VAIL, AS GUARDIAN OF THE ESTATE OF ANGELE AGOURE VAIL, AN INCOMPETENT PERSON, IN DEED RECORDED OCTOBER 17, 1963 IN BOOK 2410, PAGE 561 OF OFFICIAL RECORDS. ALSO EXCEPT 25% OF ALL MINERALS, COAL, OIL, PETROLEUM, GAS, ASPHALTUM AND KINDRED SUBSTANCES, NOW OR HEREAFTER IN OR UNDER SAID LAND BELOW A DEPTH OF 500 FEET FROM THE SURFACE THEREOF WITHOUT THE RIGHT OF SURFACE ENTRY, AS RESERVED IN DEED DATED DECEMBER 13, 1966 FROM MILAN ROVEN AND ABRAHAM SPIEGEL, RECORDED DECEMBER 20, 1966, IN BOOK 3081, PAGE 337 OF OFFICIAL RECORDS. ALSO EXCEPT ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL GAS RIGHTS AND OTHER HYDROCARBON SUBSTANCES BY WHATSOEVER NAME KNOWN THAT MAY BE BELOW THE UPPER 100 FEET OF THE SUBSURFACE OF SAID LAND, WITHOUT, HOWEVER, THE RIGHT OF SURFACE ENTRY, AS EXCEPTED IN DOCUMENT RECORDED MAY 22, 1969, IN BOOK 3492, PAGE 234 OF OFFICIAL RECORDS. PARCEL B: AN EASEMENT FOR ACCESS, INGRESS AND EGRESS, PUBLIC UTILITIES AND INCIDENTAL PURPOSES OVER THAT PORTION OF LOT 3 OF TRACT NO. 5004, IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 137, PAGES 97 TO 102 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SHOWN AND DELINEATED ON THE MAP OF SAID TRACT AS "WHITE SAGE ROAD (PRIVATE STREET)". • 667 12853-0001\2093180v6.doc DRAFT EXHIBIT "B" LEASED PREMISES An approximately sixteen foot, ten-inch (16' — 10") by sixteen foot, ten inch (16' — 10") parcel containing approximately 283 square feet, as depicted on Exhibit "B" to the Land Lease Agreement. 668 12853-0001\2093180v6.doc EXHIBIT "C" DESCRIPTION OF CITY SIGNS (INCLUDING LOCATIONS ON PROPOSED TOWER) Locations: Top of the tower on the north, south and west sides, as shown on the attached diagram. (East side wall not have signage.) Number/Design: Three signs, up to 40 square feet each, with City staff to determine size of letters, font, color and message. Quality of materials to be the same or better as those for tenant signage on tower, with channel letters with 4" deep returns, internally reverse lit or reverse halo lit and with raceways behind wall. It is intended that the signs do not interfere with the operation of the wireless communication facilities. Plans: Signage plans shall be submitted to City staff, and shall be subject to approval by City staff and then by the City Council. 669 12853-0001\2093180v6.doc I • 11 :I: 'Weome to i 91 8" 'I Moorpark .j Ii �!I 11 II. F liliM 12' C KITCHEN & BATH 4$, CENTER MATTRESS Innovation 12' Dance Center ___ . ....e—,®fes _11_-_._I..A =9 1 II II 1 rizsoism emu= 10° I -- ® � I © AU failER {� If—_I1nii• I ii--� U.--moiII I II !. I II__Il I _ :•.r I`• Imo.5 •W Np -12- 670 12853-000112853-0001\2093180v 6.doc CERTIFICATE OF ACCEPTANCE (California Government Code Section 27281) This is to certify that to the extent the attached City Sign Agreement and Conditions, Covenants and Restrictions is construed to be an easement or other interest in real property held by the City of Moorpark, such interest is hereby accepted by the undersigned officer on behalf of the City of Moorpark pursuant to the authority conferred by action of the City of Moorpark on , 2017, and the grantee consents to recordation thereof by its duly authorized officer. Dated: , 2017 Steven Kueny, City Manager ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy,or validity of that document. State of California ) County of Ventura ) On , 2017, 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) -13- 671 12853-000l\2093180v6.doc SUBORDINATION AGREEMENT The undersigned, JPMORGAN CHASE BANK, NA ("Beneficiary"), is the beneficiary, and NLA 14339, LLC ("Trustor") is the trustor, under that certain_Deed of Trust, Assignment of Leases and Rents, Security Agreement and Financing Statement dated March 28, 2016 and recorded on April 8, 2016 as Document No. 20160408-00048117-0 1/13 in the Official Records of the County of Ventura, California("Deed of Trust"). Beneficiary, with the knowledge and consent of the Trustor, hereby subordinates the Deed of Trust (including any lien created thereby) to the foregoing "City Sign Agreement and Conditions, Covenants and Restrictions"; however, this Lender Subordination Agreement shall not constitute an agreement by Beneficiary to assume or be liable for any obligations of the Trustor arising or accruing under said documents prior to the acquisition of title by Beneficiary (or by an affiliate or designee of Beneficiary) to the real property described in said sign agreement. BENEFICIARY: JP MORGAN CHASE BANK, NA By: Print Name: Title: TRUSTOR: NLA 14339, LLC By: Tom Schlender, Manager -14- 12853-000I\2093180v6.doc 6 7 2 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) -15- 12853-0001\2093180v6.doc 6 7 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 sianature(s) on the instrument the person(s), or the entity upon behalf of which theperson(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) -16- 12853-000I\2093180v6.doc 6 7 4