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03-0603_BERTOLINO, RALPH A._C1_Agenda Report• • CRA 6/3/2003 CRA AGENDA ITEM C 1 TO: George Scarborough, Executive Director FROM: Douglas D. Dumhart, Principal Managment Analyst SUBJECT: Consideration of Settlement Agreement by and between the City, the Agency and Ralph Bertolino to conclude the rent increase dispute at 26755 Verdugo Street - Vaquero West Mercantile By motion, approve the Settlement Agreement with Ralph Bertolino and authorize the Chairman to execute documents. SUMMARY: In 1990, the Redevelopment Agency acquired the leasehold interest of 26755 Verdugo Street; for the purpose of eliminating the operation of a saloon directly across the street from the then recently opened family movie theater. This lease is referred to as the "1971 Lease". The Agency subsequently leased the building to Vaquero West Mercantile in 1992 for the operation of a retail western wear establishment. Under the terms of the 1971 Lease, the ground rent was to be reset in 1996 to 8% of the value of the Leased premises. There is a dispute between the Agency and Ralph Bertolino as to whether the Leased premises refers to just the footprint of the building or all of the land of Lot 4 on which the building sits. The footprint of the building is nearly 3,700 square feet and the land area of Lot 4 including the building footprint is approximately 12,750 square feet. Part of the confusion is that Bertolino leased all of Lot 4, less the building footprint, to the City in a 1982 ground Lease, so the City could build the Multi -Modal Parking Lot. There is also a dispute between the Agency and Bertolino regarding the value of the land. The Agency appraisal established a value of $34.00 per square foot and the Bertolino appraisal established a value of $65.00 per square foot. A Settlement Agreement has been arrived at to resolve the rent dispute. Under the Settlement Agreement, the Agency agrees to pay back rent in the amount of $239,815.00 and transfer all of the Agency's rights in the 1971 Lease to Bertolino. As a result, Bertolino will have direct lease control over the Vaquero West commercial building, giving Bertolino the opportunity to have the marketplace determine fair market rent for the facility. A copy of the Settlement Agreement is provided to this memorandum as Attachment 1. The Settlement Agreement involves both the City and Agency as parties to the Agreement because it resolves issues pertaining to the City's 1982 Ground Lease and the Agency's 1971 Lease. FOUR CITY C0014Cll. AGLNUA. 0 0 Agenda Item -2- June 3, 2003 BACKGROUND: The subject property Lot 4, of Tract 134 is encumbered with two ground lease agreements. One ground lease originated in 1971 between National Producers Life Insurance Company, as then - current owner, and Provincial Properties, Inc., as tenant, (1971 lease). The other ground lease was entered into in 1982 between the "Bertolinos", comprised of Antonin, Echo Mae, and Ralph Alan Bertolino, and the City for use as a parking lot (1982 lease). In 1990, the Redevelopment Agency acquired a leasehold interest in the San Juan Saloon, the 1971 lease. This leasehold interest has changed hands several times since it was created in 1971. A review of the 1971 lease indicates that it encompasses Lot 4 in its entirety. This is in conflict with the City's 1982 lease for parking purposes. The Bertolino's did not have the right to lease a portion of Lot 4 to the City in 1982 as there was a pre-existing ground lease for the entire lot dating back to 1971. The rent increase provisions of the 1971 lease states, "the rental ... shall be adjusted to a sum equal to eight percent (8%) of the fair market value of the leased land (exclusive of Leasee's structure and appurtenances thereon)....". Hence, the rent increase is based on the market value of Lot 4 in its entirety, not on the land under the building footprint. At the same time the City has been paying the property taxes for Lot 4 under the 1982 lease. The City's position has been that Bertolino has been trying to enforce the rent increase provision of the 1971 lease while at the same time maintaining that the he had the right to lease Lot 4 for parking purposes in the 1982 lease. The dilemma is in whether we continue interpretations of the ground leases using the 1982 lease assumptions (footprint) or the literal provisions of the 1971 lease. Complicating matters is the fact that both the Agency and Bertolino have prepared appraisals for determining the fair market value and hence the rent increase. The appraisals are almost 100% apart in their values. Both appraisals contain valuations for the footprint and the entire lot, since at the time of preparation we could not agree on what the increase would be based on. The matter of two leases and two very different appraisals has hindered our ability to conclude the rent increase negotiations. We have had three attorneys's reviews the history of the leases. Staff and legal counsel corresponded via mail and meetings with the landlord on a regular basis between 1995 and 2002. Those efforts were fruitless. The 1971 Lease has provisions for arbitrating the rent increase in case of a dispute. Staff had verbally offered having the issue arbitrated to bring a resolution to the matter. Mr. Bertolino and his Counsel had rebuffed that suggestion. Recently staff has focused on improving our relationship with the landlord and developing a settlement solution. On March 21, 2002, the Agency made a settlement offer to Bertolino to pay a lump sum of back rent in cash plus assign the 1971 leasehold interest to Bertolino. His agents agreed to the deal points and over the last year the parties have been preparing documents for the Settlement Agreement. 0 Agenda Item -3- June 3, 2003 It is important to note that should the 1971 lease be assigned to Bertolino, he could take the position that his family never had the right to lease a portion of Lot 4 in the 1982 lease. Thus, having the 1971 lease assigned to him will give him control over a portion of the Multi -Modal Parking Lot. The Settlement Agreement which assigns Bertolino the 1971 lease has provisions for re -affirming the intent to lease a balance of Lot 4 (entire parcel less building footprint) to the City per the 1982 ground lease. This reason is why the City is party to the Settlement Agreement. The Salient points of the Settlement Agreement set out the following: The Agency will pay Bertolino $239,815.00 in cash; and, 2. The Agency will assign the 1971 lease to Bertolino; and, The Agency and City warrant the following: (i) Agency is owner of the building (ii) There are no tenancy agreements affecting the building or footprint. (iii) The City will maintain the 1982 leasehold interest at it's sole cost and expense. (iv) The permitted uses of the building are those contained in Section 9-3.303 of the Municipal Code, (v) The City will credit all of Bertolino's holdings (Capistrano Plaza and Vaquero West Building) with not less than 82 parking spaces. 4. The Vaquero West Building is on the City's list of buildings and sites of distinction. That the list is strictly an honorary designation and imposes no restrictions nor conveys any benefits. 5. Bertolino reaffirms the intent to lease Lot 4 (less the building footprint) to the City as intended under the 1982 ground lease. FINANCIAL CONSIDERATIONS: The net benefit or cost to the Agency is the difference between the likely rental income and the likely ground rent expense. With respect to rental income, the Agency's financial consultant, Keyser Marston and Associates believes it is unlikely that the property could achieve significantly higher rents over the next several years than what is currently being. The anticipated loss would be between $800 and $63,590 depending on the ground lease due which would be subject to arbitration. Funds for the back rent payment of $239,815.00 have been budgeted in the FY 02/03 budget. It should be noted that the Agency acquired this site to eliminate a public nuisance and that goal has been accomplished. The City also had the goal of trying to improve its relationship with Mr. Bertolino and that has value too. 0 Agenda Item -4- NOTIFICATION: Steve McHolm, Snell and Wilmer Tom Clark, Straddling, Yocca, Carlson and Rauth Ralph Bertolino, C/O Haas Accounting Tim Holsten Bill Angermann BOARD/COMMISSION REVIEW: Not applicable ALTERNATE ACTIONS: CJ June 3, 2003 1. By motion, approve the Settlement Agreement with Ralph Bertolino and authorize the Chairman to execute documents. 2. Refer to Staff for additional information. RECOMMENDATION: By motion, approve the Settlement Agreement with Ralph Bertolino and authorize the Chairman to execute documents. Res tfully submittteed, aO,-4 F"� Douglas . Dumhart Principal Management Analyst Attachments: 1. Settlement Agreement 0 9 SETTLEMENT AGREEMENT This SETTLEMENT AGREEMENT (this "Agreement"), dated 2003, is made by and among RALPH A. BERTOLINO, AS TRUSTEE OF THE RALPH ALAN BERTOLINO 1996 TRUST and RALPH A. BERTOLINO, AS TRUSTEE OF THE RALPH ALAN BERTOLINO 1996 TRUST DBA "CAPISTRANO PLAZA" (hereafter collectively referred to as "Bertolino,"), the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic (hereafter referred to as the "Agency"), and the CITY OF SAN JUAN CAPISTRANO, a municipal corporation (the "City"). Bertolino, Agency and City are sometimes referred to together as the "Parties". In consideration of the promises made herein, the Parties agree as follows: 1. Nature of Complaint and Recitals. Bertolino and the Agency have been engaged in a dispute concerning the following: (a) rent and other charges Bertolino alleges to be due from the Agency under that certain Ground Lease dated March 8, 1971, between National Producers Life Insurance Company (the "Original Lessor") as Lessor, and Provincial Properties, Inc. (the "Original Lessee") as Lessee (the "1971 Lease"), by virtue of the fact that the Agency is a sublessee of a portion of the Original Lessee's interest in the 1971 Lease, and Bertolino has succeeded to the interests of both the Original Lessor and the Original Lessee. Bertolino contends, among other things, that all of the real property and improvements known as Lot 4 of Tract 134, per map recorded in Book 11, page 23 of Miscellaneous Maps, records of Orange County, California ("Lot 4") is subject to the 1971 Lease, and that accordingly, certain rent, taxes, and other charges are in arrears and that the City's rent should be calculated based on such an interpretation of the facts, whereas the City contends that only that portion of Lot 4 shown on Exhibit A and described on Exhibit B (the "Footprint") is subject to the 1971 Lease, and that therefore the increased rent owed to Bertolino should be calculated accordingly. Pursuant to the 1971 Lease, a rent adjustment was to have occurred on or about April 9, 1996, and the parties have been unable to agree on the amount due. Bertolino now claims the amount due with respect to such an increase is between $375,000.00 and $525,000.00, plus, in any case, interest from the date each rent payment was due. The Agency admits that some amount is due, but contends that the amount is substantially less. (b) the inclusion of all portions of Lot 4 other than the Footprint in that certain Ground Lease Agreement dated July 15, 1982, between Antonin Bertolino, Echo May Bertolino, and Ralph A. Bertolino as landlord but referred to therein as "Owner" and the City as tenant but referred to therein as "City" (the "1982 Lease"). The City maintains that all of Lot 4 other than the Footprint is governed by the 1982 Lease and that therefore (i) a lesser rent increase is due Bertolino, which increase should relate only to the Footprint, (ii) no increase is due with respect to the balance of Lot 4, and (iii) Bertolino has no right to control the portions of Lot 4 governed by the 1982 Lease except as described in the 1982 Lease. For purposes of this Agreement, all of Lot 4 other than the Footprint is referred to herein as the "Remaining Portion". (c) Bertolino owns the shopping center commonly known as Capistrano Plaza (legally described on Exhibit C hereto), which is adjacent to Lot 4, and other property governed by the 1982 Lease. The 1982 Lease covers all (if interpreted as the City contends is correct), or DOCSOC\931556v6\22299.0029 ::ODM"CDOCSVRV\315673\3 ATTACHMENT 1 05/19/03 1:50 PM substantially all (if interpreted as Bertolino contends is correct) of what was the entire parking area for Capistrano Plaza. Bertolino contends that the 1982 Lease and the parties' understandings and expectations at the time of entering into same requires the City to (a) permit parking at no charge and subject to no other restrictive conditions to patrons and employees of Capistrano Plaza, and (b) allow expansion of the rentable square footage of Capistrano Plaza and other improvements to be made there without reference to parking requirements and without any conditions, costs, fees, or charges concerning parking or parking requirements that might otherwise be imposed as a result of such expansion or improvements. (d) The Parties have agreed that they wish to bring an end to this dispute, and have reached agreement with respect to same, as set forth in this Settlement Agreement. 2. Terms of Settlement. In settlement of the Dispute, in exchange for the promises and performances of each other set forth herein, and subject to vacation of the Building, the Parties agree as follows: (a) The Agency shall pay Bertolino the sum of $239,815.00; (b) The Agency shall execute and deliver a Grant Deed in the form of Exhibit D hereto, conveying to Bertolino all of improvements on the Footprint, including, without limitation, the two story building and related improvements known as 26755 Verdugo Street, San Juan Capistrano (the "Building"). The Building contains approximately 3,650 square feet of area, including residential living quarters on the second floor and retail operations on the first floor, and has a patio area in the rear. Effective upon such conveyance, this Agreement shall also constitute an assignment of any and all right, title and interest of the City in and to the 1971 Lease, and any other Lease, sublease, or any other type of tenancy or ownership agreement pursuant to which the City has or claims any right, title or interest in or to the Footprint or the Building. It is the intention of the parties hereto that following such conveyance, Bertolino shall own the Building and all such related improvements in fee simple absolute, shall continue to own the fee interest in the Footprint, and shall have, and the City will convey, pursuant to the Access Easement Agreement and Deed attached hereto as Exhibit E and incorporated herein by reference, a permanent right of ingress, egress and access to such Building from the public sidewalk in front of the Building, and from Verdugo Street, which is a public street, to said sidewalk and the Building. In addition, without regard to their specific location on or off of the Footprint, the City hereby grants and conveys to Bertolino the right to construct, keep in good order and repair, replace as necessary and maintain any and all water, gas, electric, telephone, sewer, storm drain and any other utility which serves the Building or any successor improvements on the Footprint (collectively, the "Utilities"), and Bertolino shall have the right, at reasonable times and on reasonable notice (except in the event of an emergency, in which case only such notice as is practicable shall be required), at its sole cost and expense, to enter onto any property covered by the 1982 Lease to maintain, repair, and replace the Utilities, all pursuant to the Utility Easement Agreement and Deed attached hereto as Exhibit F and incorporated herein by reference. All of the rights of Bertolino described herein are intended to be permanent, and to be covenants running with the land of Bertolino and the leasehold estate of the City in the 1982 Lease, which shall inure to the benefit of Bertolino's successors in interest in the Building and the Footprint. In connection with these conveyances, the City represents, warrants, and agrees as follows: DOCSOC\931556v6\22299.0029 05/19/03 1:50 PM (i) It is the owner of the Building and related improvements, and except as described in this subsection, has not granted or conveyed any interest in or to same, or encumbered same in any way. (ii) The Building is currently occupied by William Angerman ("Angerman"), who contends he is the assignee of Tim Holsten ("Holsten") under that certain Commercial Lease dated as of April 7, 1992, between the Agency as Landlord, and Holsten as Tenant, which was amended July 6, 1993, March 15, 1994, November 1, 1994, and October 15, 1996 (as amended, the "Vaquero Lease"). The Agency has not consented to the assignment, sublease or other transfer of the Vaquero Lease to Angerman, or any other person or entity, and has no knowledge of any other person or entity who claims any rights under the Vaquero Lease, or any other rights of possession whatsoever, save and except for concessionaires in the Building who entered into possession by virtue of contracts or agreements with Holsten or Angerman or both of them. The Agency intends to terminate the Vaquero Lease and cause the vacation of the Premises on or before May 3, 2003. The Agency has not entered into any other lease or tenancy agreement affecting the Building or the Footprint. (iii) The City shall, during the term of the 1982 Lease, at its sole cost and expense, maintain in good condition and repair and in a manner consistent with all laws, rules, regulations and safety codes governing same, all landscaping and improvements of whatever type or extent as may exist from time to time on Lot 4 save and except for the Building and the component parts thereof, and the utilities serving the Building. (iv) The current retail and residential uses in the Building are permitted uses as that term is used in San Juan Municipal Code § 9-3.303. (v) The Building and any successor Building or improvements on the Footprint, and Capistrano Plaza and any successor buildings or improvements on the current location thereof, shall, for all construction entitlement, building and safety code compliance, and similar purposes be allocated, and the owners, occupants, tenants, and invitees of each of them shall be credited with not more than 82 parking spaces within the area currently improved as a parking lot adjacent to the Building and Capistrano Plaza which is governed by the 1982 Lease ("Parking Lot") or, at the election of the Agency, in a downtown location which is functionally equivalent to the Parking Lot, in each case without cost, condition, or restriction. Further, at no time shall the City be permitted to (a) deny or limit any present or future use of the Building or any successor Building or improvements on the Footprint or of Capistrano Plaza or any successor buildings or improvements on the current location thereof on the basis of a lack of sufficient parking, or (b) to impose any costs or other conditions related to parking in support of uses in the Building or any successor Building or improvements on the Footprint or of Capistrano Plaza or any successor buildings or improvements on the current location thereof, during the term of the 1982 Lease unless in either such case any such uses shall require more than 82 parking spaces. (vi) The Building is included in the Building and Sites of Distinction List (the "List"). The List serves as a catalogue of structures and sites which are potentially eligible for inclusion on the City's "Inventory of Historical and Cultural Landmarks" when each such building and/or site meets all listing criteria and the property owner consents to inclusion. The List is strictly an honorary designation and imposes no restrictions nor conveys any benefits (see October 27, 1987 Cultural Heritage Commission Agenda Item on the "Buildings of Distinction"). DOCSOC\931556v6\22299.0029 ::ODMA\PCDOCS\IR V1315673\3 05/19/03 1:50 PM (c) Bertolino, for himself, his heirs, successors and assigns, hereby acknowledges and agrees that this Agreement shall constitute a clarification of, and to the extent necessary, an amendment to, the 1982 Lease, in which the City hereby joins, to the effect that the Remainder Portion is a portion of the "premises" described in the 1982 Lease, and shall be governed in all respects by the 1982 Lease. Accordingly, upon payment of the sum set forth in subparagraph 2(a) and the completion of the conveyances described in subparagraph 2(b), above, the 1982 Lease will be deemed to be amended, clarified, and reformed as described in this subparagraph (c) and shall constitute a valid, legal and binding obligation of the parties thereto enforceable in accordance with its terms. (d) Bertolino and the City hereby agree that from and after the effective date of this Agreement, the 1982 Lease is further amended, modified and clarified to state that any and all references in the 1982 Lease or this Agreement to the "Footprint" shall mean the real property described on Exhibit G and depicted on Exhibit H hereto, and therefore the "Remaining Portion" shall mean and refer to all portions of Lot 4 not included within such legal description or shown on such depiction. The parties agree to take such further actions and execute such other documents as may be necessary in the future to allow the separate conveyance of the Footprint property, or to otherwise ensure that it is or will be a legal parcel, if necessary in order to comply with applicable law. (e) Upon payment of the sum set forth in subparagraph 2(a) and the completion of the conveyances described in subparagraph 2(b), above, the Agency shall be deemed current on all obligations under the 1971 Lease. 3. Effect of Agreement. This entire Agreement shall constitute full settlement and discharge of the referenced claims and the resulting dispute between Bertolino and Agency, and all parties represented by or claiming through them with respect to the matters set forth in Paragraph 1, above (the "Dispute"). Neither the fact of settlement nor anything in this Agreement shall constitute an admission of liability for any of such claims or portion of the Dispute. 4. Compromise Agreement. In further consideration of the promises provided for in this Agreement, the Parties hereby compromise and settle any and all past, present, or future claims, demands, obligations, or causes of action arising out of the operative facts of this dispute for compensatory or punitive damages, costs, losses, expenses, and compensation, whether based on tort, contract, statute, or other theories of recovery, which the Parties have against each other, their predecessors and successors in interest, heirs, and assigns, and the Parties' past, present, and future officers, directors, shareholders, agents, employees, attorneys, parent and subsidiary organizations, affiliates, and partners, and agree that this compromise and settlement shall constitute a bar to all such claims which are included within the definition of the "Dispute". 5. Release and Discharge. In consideration of the promises provided for in this Agreement, the Parties hereby release and discharge each other, their predecessors and successors in interest, heirs, and assigns, and the Parties' past, present, and future officers, directors, shareholders, agents, employees, attorneys, parent and subsidiary organizations, affiliates, and partners, from, and relinquishes any and all past, present, or future claims, demands, obligations, or causes of action arising out of the operative facts of the Dispute for, compensatory or punitive damages, costs, losses, expenses, and compensation, whether based on tort, contract, statute, or other theories of recovery, 4 D0CS0C\931556v6122299.0029 ::ODMAIPCDOCSVRVU 15673\3 05/19!03 1:50 PM 0 0 which the Parties have ever had, or may now have, against each other included within the definition of the Dispute. 6. Unknown Claims. The Parties hereby acknowledge and agree that the releases set forth in paragraph 4 above are general releases that apply to all claims for injuries, damages, or losses to the Parties' person and property, real or personal (whether those injuries, damages, or losses are known or unknown, foreseen or unforeseen, or patent or latent) which the Parties may have against each other concerning the Dispute and the Parties thereby waive application of California Civil Code Section 1542. Each Party certifies that he has read the following provisions of California Civil Code Section 1542: "A general release does not extend to claims which the creditor does not know or suspect to exist in favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." and indicates that fact by signing his initials here The Parties understand and acknowledge that the significance and consequence of this waiver of California Civil Code Section 1542 is that even if either of them should eventually suffer additional damages arising out of the Dispute or discover new and different facts, he will not be able to make any claim for those damages. Furthermore, each Party acknowledges that he intends these consequences even as to claims for damages that may exist as of the date of this release but which that Party does not know exists, and which, if known, would materially affect that Party's decision to execute this release, regardless of whether that Party's lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause. The release given by this Agreement shall be and remain in effect as a full and complete release notwithstanding the discovery or existence of any such additional or different facts or the suffering of new or different damages or injury. 7. Warranties of Parties. Bertolino and the Agency warrant and represent to the other that each is the only person who has any interest in the claims referred to herein, and the ability, right, and authority to execute this Agreement. The Parties further warrant and represent that neither has transferred or otherwise disposed of any of the claims referred to in this Agreement. 8. Reliance on Legal Advice. All Parties represent and warrant that in executing this Agreement, they have relied upon legal advice from the attorneys of their choice, that the terms of this Agreement have been completely read and explained to them by that attorney, and that they fully understand and voluntarily accept the terms of this Agreement. 9. Cooperation. All parties to this Agreement shall cooperate fully in the execution of any and all other documents and in the completion of any additional actions that may be necessary or appropriate to give full force and effect to the terms and intent of this Agreement, including, without limitation, separate easement deeds to effectuate the rights granted to Bertolino pursuant to subparagraph 2(b), above. 10. Entire Agreement. This document contains the entire agreement and understanding concerning this subject matter between the Parties and supersedes and replaces all earlier negotiations, proposed agreements, and agreements, written or oral. All Parties signing this DOCSOC\931556v6\22299.0029 ::ODMA\PCDOCSURN315673U 05/19/03 1:50 PM Agreement acknowledge that no other party, nor any agent or attorney of any party, has made any promise, representation, or warranty whatsoever, express or implied, not contained in this Agreement concerning its subject matter, to induce them to execute this instrument. Further, each party acknowledges that it has not executed this instrument in reliance on any such promise, representation, or warranty not contained in this Agreement. 11. Effect on Successors. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns and the executors, administrators, personal representatives, and heirs of the Bertolino and City. 12. Effective Date. This Agreement shall become effective upon the later to occur of (i) execution hereof by Bertolino, the City and the Agency, (ii) vacation of the Building by the current tenant or (iii) full execution of the Termination Agreement. The matter of the approval of this Agreement shall be placed on the agenda at the first meeting of each of the Council and the Agency where it is legally permissible to do so. Each of the City and the Agency shall be responsible for and diligently pursue setting the matter for hearing, if required, agendizing said approval, satisfying all notice requirements, and satisfying all other legal requirements related to the approval by the City Council and the Board of Directors of the Agency and any other legal requirements related to each of the Agency's and the City's right to enter into and perform its obligations under this Agreement. The fulfillment of the terms hereof shall be undertaken and completed as soon as practicable following approval by the City Council and the Board of Directors of the Agency. In the event that this Agreement is not approved, or the terms set forth above are not fulfilled by July 31, 2003, this Agreement shall be null and void. 13. Governing Law. This Agreement is entered into, and shall be construed and interpreted in accordance with, the laws of the State of California. 14. Attorneys' Fees. If there is litigation or arbitration to enforce this Agreement, the prevailing party shall be entitled to its attorneys' fees and costs. 15. Counterparts. This Agreement may be executed in counterparts with the same force and effect as if executed in one complete document. There is no effective agreement, however, until each of the Parties has executed at least one counterpart. ]DOCUMENT CONTINUED ON NEXT PAGE] 6 DOCSOC\931556v6\22299.0029 ::ODM A\PCDOCSV R V\315673 V 05/19/03 1:50 PM Cl • 16. Exceptions to General Release. Notwithstanding anything contained in this Settlement Agreement to the contrary, it is the express intention of the Parties, and each of them that the Claims released do not include Claims, if any, which arise from, pertain to, or are based upon a breach of this Settlement Agreement. Dated: May_, 2003 RALPH A. BERTOLINO, AS TRUSTEE OF THE RALPH ALAN BERTOLINO 1996 TRUST Ralph A. Bertolino, Trustee RALPH A. BERTOLINO, AS TRUSTEE OF THE RALPH ALAN BERTOLINO 1996 TRUST DBA "CAPISTRANO PLAZA" Dated: May _, 2003 By: Ralph A. Bertolino, Trustee CITY OF SAN JUAN CAPISTRANO, a municipal corporation Dated: May 2003 By: John S. Gelff, Mayor ATTEST: Margaret R. Monahan City Clerk APPROVED AS TO FORM: Un Special Counsel to City [Signatures continued on Page 81 DOCSOC\931556v6\22299.0029 ::ODMA\PCDOCSUR V \315673 U 05/19/03 1:50 PM 0 Dated: May _, 2003 ATTEST: Margaret R. Monahan Agency Secretary APPROVED AS TO FORM: 0 Thomas P. Clark, Jr. Agency Counsel DOCS04C\931556v6\22299.0029 05/19/03 1:50 PM 0 [Signatures continued from Page 7] SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic Wyatt Hart, Chairman W �� Y � .. •� ami .JJx � M � O � ♦ ,A � N a i S07 N Q 2 n vn.n YO, I ga I 1 h O ti :01'Iz I O O ( O joiq CID 133d(LS a n _ l o J 1 v'• 1. � ...Y � • I d k O Q Z� i Icy � 1 : .rJJY S Q li o- W a K m C STOEET Z STREET .3 _ Y •' STREET 4' K E / f• �i61 c '9 c loop R ++ IS n 0• visr► _ RAYMOND R. TOAL, RCE 16889 Of AV S. MEUM, IS 4384 MICHAEL A ROTIL IS 6211 0 0 TOAL ENGINEERING, INC. CIVIL. ENGINEERS, LAND PLANNERS AND LAND SURVEYORS 139 AVENIDA NAVARRO- SAN CLEMENTE, CA 92672 (949) 492-8586 - FAX (949) 498-8625 LEGAL DESCRIPTION MAILING ADDRESS P.O. BOX 187 SAN CLEMENFE, CA 92674 In the City of San Juan Capistrano, County of Orange, State of California, being that portion of Lot 4 in Tract 134, as shown on a map recorded in Book 11, Page 23 of Mscellaneous Maps, records of said Orange County, more particularly described as follows: Beginning at the most Southeasterly corner of said Lot 4; thence along the Southerly boundary of said Lot 4 South 84002'00" West 47.59 feet to the beginning of a curve concave Northerly and having a radius of 17.00 feet; thence Westerly along said curve through a central angle of 59°51'31" an arc length of 17.76 feet; thence non -tangent to said curve North 6°34'00" West 51.55 feet; thence North 81°22'31" East 14.03 feet; thence North 4°50'36" West 3.92 feet; thence North 8432'1 T' East 48.07 feet to a point in the Easterly boundary of said Lot 4; thence along said boundary South 6°34'00" East 64.17 feet to the POINT OF BEGINNING, AS:as 111451egal Ar 5N ,? MEUM WIRES Olav S. Meum LS 4384 9-30-05 ..• POR. LOT d • EXHIBIT "A" --------------- VERDUGO STREET ATI N MAP NO OUV S. MEUM EXPIRES 9-30-05 NO. 4384 LOT 3 m CITY OF SAN JUAN CAPISTRANO MASTER GROUND LEASE SAN JUAN SALOON SITE 0 0 D. The Agency, by virtue of its interest as a sub lessee under that certain Ground Lease dated March 8, 1971, between National Producers Life Insurance Company (the "Original Lessor") as Lessor, and Provincial Properties, Inc. (the "Original Lessee") as Lessee (the "1971 Lease"), may have acquired some right, title or interest in and to some or all of the real property or improvements ("Residual Rights Area") which surround the Footprint Property, which were a portion of the property governed by the 1971 Lease. Although the 1971 Lease is, or by the date of recordation of this Agreement will be, terminated, the Agency joins in this Agreement for the purpose of insuring that no residual rights remain in Agency which could operate to prohibit or interfere with Grantee's ingress and access to, or egress from, the Footprint Property and the private property improved with landscaping, sidewalks, parking areas, driveways and similar items which surrounds the Footprint Property. The Agency joins in the granting of the easements conveyed herein as its interests, if any, may appear, and no intention to create any new interest, or assume any obligations or liabilities which it would not otherwise have are to be deemed to be created by virtue of such joinder. E. The City is the owner of the Leasehold interest in the property described on Exhibit "C" hereto (the "Parking Lot"), pursuant to that certain Ground Lease Agreement dated July 15, 1982, between Antonin Bertolino, Echo May Bertolino, and Ralph A. Bertolino as landlord but referred to therein as "Owner" and the City as tenant but referred to therein as "City" (the "1982 Lease"). Bertolino is the current fee owner of the Parking Lot property, which is adjacent to both the Footprint Property and Capistrano Plaza. F. The City and the Agency are sometimes referred to herein collectively as "Grantor", and the Public Property, the Parking Lot, and the Residual Rights Area are sometimes collectively referred to herein as the "Easement Areas". G. The Parties desire to ensure that the Footprint Property has adequate ingress, egress and access to and from the Building and the Public Property, the Residual Rights Area, and the Parking Lot, and have entered into this Agreement to accomplish same. Therefore, the Parties agree as follows: 1. Grant of Easement By City. The City hereby grants to Grantee, its successors and assigns with respect to Grantee's interest in the Building and the Footprint Property, a perpetual, non-exclusive easement for pedestrian and vehicular (but only to the extent vehicular access is consistent with the level of improvement of the Public Property and the Parking Lot) and is otherwise in conformity with all applicable laws, rules and regulations) ingress, egress and access (a) to the Footprint Property and the Building from the Public Property which is contiguous to the Building or the Footprint Property, or which is otherwise reasonably necessary to provide usual and customary ingress, egress and access to and from the Building and Footprint Property, and (b) to and from the Parking Lotoo the Building and the Footprint Property, and to and from the Building or Footprint Property to the Parking Lot. 2. Grant of Easement By Agency. The Agency, as and if its interest in the servient tenement may appear, hereby grants to Grantee, its successors and assigns with respect to Grantee's interest in the Building and the Footprint Property, a perpetual, non-exclusive easement for pedestrian and vehicular (but only to the extent vehicular access is consistent with 384%3.0W1WCWLMS'gRW11000.1 2 0 9 the level of improvement of the Residual Rights Area) and is otherwise in conformity with all applicable laws, rules and regulations) ingress, egress and access to the Footprint Property and the Building from the Residual Rights Area which is contiguous to the Building or the Footprint Property, or which is otherwise reasonably necessary to provide usual and customary ingress, egress and access to and from the Building and Footprint Property. 3. Reservation of Rights. The City, and its respective successors and assigns, and the Agency and its respective successors and assigns, with respect to the Residual Rights Area, each hereby reserve the right to use same for any purpose whatsoever so long as such use does not unreasonably interfere with the continuous and uninterrupted use of the easements by Grantee. 4. General Management of Easement Areas. (a) Obstruction of Easement Areas. Neither the City nor the Agency nor either of their employees, agents, subtenants, licensees, contractors will impair, nor will they permit the impairment by any of their respective guests, occupants, invitees and/or permitted of the continuous and uninterrupted use by Grantee of the easement rights granted herein, for the purposes set forth in this Declaration. (b) No Charge. Neither the City nor the Agency shall collect, attempt to collect or permit the collection of any charge for the use of, or access to or through any portion of the Easement Areas. (c) Maintenance of Easement Areas. Except as provided specifically herein, all maintenance and repairs, whether ordinary or extraordinary, capital or expense in nature, major or minor, of the Easement Areas shall be performed by their respective owners, which, as used herein, shall mean the Grantor with respect to each portion of such Areas, at their sole cost and expense. All such work shall be performed in such manner and at such intervals so that the Easement Areas shall at all times be in a clean, safe and sanitary condition. 5. General Provisions. (a) Related Rights. The Easements granted herein shall also include such other incidental and related rights as are reasonably necessary for Grantee to enjoy and enforce its rights, and perform its duties, created herein (b) Indemnity. Grantor agrees to, and shall, indemnify, defend, hold harmless the City or the Agency, as relevant, from and against any and all liabilities, judgments, claims, demands, losses, damages, costs, including costs of defense, expenses and fees (including reasonable attorneys' fees and costs) arising from or related to the exercise of any easement rights by Grantee in a manner inconsistent herewith. (c) Easements and Covenants Binding on Successors and Assigns. The Easements and the terms, rights, conditions, restrictions and limitations contained herein with respect thereto shall burden and run with the property interests of the Grantors with respect to their respective property, shall be appurtenant to and run with the Footprint Parcel and the Building (including any replacement of same), and shall inure to the benefit of Grantee and any 384810DOINCHOIMSURW 11000.1 3 0 9 subsequent owner of the Building or the Footprint Property and their respective successors and assigns. The benefit and burdens of the Easements and covenants contained in this Agreement shall run with the referenced properties and property interests as covenants and equitable servitudes running with the land. (d) Exclusivity. The Easements granted hereunder are non-exclusive and each Grantor reserves the right to use and grant other easement rights in and to the Easement Areas, provided that such use and easement rights shall not materially interfere with the Easement rights granted hereunder. (e) Enforcement Rights. (i) Any Party, or their successors as provided herein, may enforce the provisions of this Agreement (i) by a suit for declaratory relief to determine the enforceability of any of the terms hereof, (ii) by an action in equity or otherwise for specific performance to enforce compliance with the terms hereof or for any injunction to enjoin the continuance of any breach or violation thereof, or (iii) through any other right or remedy to which such Party may be entitled at law or in equity. (ii) The rights and remedies established under this Agreement shall be deemed to be cumulative; and no one of such rights and remedies shall be exclusive of any other right or remedy which any Party might otherwise have by virtue of the terms of this Agreement or under law. The exercise of any particular right or remedy shall not impair the right to exercise any other right or remedy. (f) No Waiver. No waiver of any default hereunder shall be implied from any omission by any Party to take any action with respect to such default, if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. A waiver of any default in the performance of any provision contained in this Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same provision or any other provision contained herein. (g) Mortgagee Protection. A breach of any or all of the terms, conditions, covenants or restrictions of this Agreement shall not defeat or render invalid the lien of any mortgage or deed of trust on the Easement Areas or the Footprint Property or the Building, but such terms, covenants, conditions, and restrictions shall be binding upon and effective against any parties whose title to such properties, or any portion thereof, is acquired by foreclosure, trustee's sale or otherwise. (h) Attorneys' Fees. In the event of any controversy, claim or dispute relating to this Agreement or any breach thereof, the prevailing party shall be entitled to recover from the other party or parties its reasonable attorneys' fees and costs. (i) No Rights in Public. Nothing herein contained shall be deemed to create any rights in the general public, nor be deemed to be a gift or a dedication of any portion of any of any of the described property to or for the general public or for any public purpose 38483.0001 V.4CHOLMSVRW 11000.1 4 whatsoever, it being the intention that this Agreement shall be strictly limited to and for the purposes herein expressed. 0) General Interpretation. (i) This Agreement shall be governed by, enforced and construed in accordance with the laws of the State of California. If any term, provision or condition contained in this Agreement (or the application of any such term, provision or condition) shall to any extent be invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law. The exhibits attached hereto are incorporated herein by this reference for all purposes. (ii) When the context in which the words are used herein indicates that such is the intent, words in the singular number shall include the plural and visa versa. All pronouns and any variations thereof shall be deemed to refer to all genders, and the terms Owner, Grantor, and Grantee shall include natural individuals, associations, trusts, estates and all other form of business entities. The captions of the paragraphs and subparagraphs herein are for convenience of reference only and shall not be considered or referred to in resolving questions of interpretation or construction. (iii) In all cases the language in all parts of this Agreement shall be construed simply, according to its fair meaning under California law. 6. Counterparts. This Ingress/Egress Easement Deed may be executed in counterparts and shall become effective upon execution by all the parties hereto and each such counterpart shall be deemed to be an original. 7. Modifications. No alteration or variation of this term of this Agreement shall be valid unless made in writing and signed by the parties hereto and recorded, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. CONTINUED ON NEXT PAGE 38483.0001WCH0l.MSURVU 11000.1 9 8. Attorneys' Fees. In the event of controversy, claim or dispute between the parties hereto arising out of or relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover from the other party reasonable expenses, reasonable attorneys' fees and reasonable costs. IN WITNESS WHEREOF, the parties hereto have executed this agreement on the dates opposite their respective signatures. E94 AMM" CITY OF SAN JUAN CAPISTRANO Dated: 2003 By: Dated: .2003 Approved as to Form: La Attorneys for City Dated: .2003 Dated: 2003 "GRANTEE" RALPH A. BERTOLINO, TRUSTEE OF THE RALPH A. BERTOLINO 1996 TRUST Ralph A. Bertolino, Trustee RALPH A. BERTOLINO, TRUSTEE OF THE RALPH A. BERTOLINO 1996 TRUST DBA CAPISTRANO PLAZA Ralph A. Bertolino, Trustee 38483.0001 \MCHOLMMIRW 11000.1 6 State of California ) ss. County of ) On , 2003 before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) istare 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. WITNESS my hand and official seal. Signature of the Notary My Commission Expires State of California ) ss. County of ) On 2003 before me, re - personally appeared personally known to me (or 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. WITNESS my hand and official seal. Signature of the Notary My Commission Expires 394H3.0001 MCHOLMS\JRV\311000.1 0 9 State of California ) ss. County of ) On , 2003 before me, personally appeared personally known to me (or 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. WITNESS my hand and official seal. Signature of the Notary My Commission Expires State of California County of On re - personally appeared ss. 2003 before me, personally known to me (or 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. WITNESS my hand and official seal. Signature of the Notary My Commission Expires 38483.000MCHOLMSUR V\311000.1 State of California ss. County of On , 2003 before me, personally appeared personally known to me (or 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. WITNESS my hand and official seal. Signature of the Notary My Commission Expires 38483.0001UdCHOLMSUV\711000.1 9 0 EXHIBIT F E UTILITY EASEMENT AGREEMENT F-1 D005OCV31556v6122299.0029 9 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Attention: (Space above line for Recordets use only) UTILITY EASEMENT AGREEMENT AND DEED This UTILITY EASEMENT AGREEMENT AND DEED (this "Agreement"), dated _ 2003, is made by and among RALPH A. BERTOLINO, AS TRUSTEE OF THE RALPH ALAN BERTOLINO 1996 TRUST and RALPH A. BERTOLINO, AS TRUSTEE OF THE RALPH ALAN BERTOLINO 1996 TRUST DBA "CAPISTRANO PLAZA" (hereafter collectively referred to as "Bertolino,"), the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic (hereafter referred to as the "Agency"), and the CITY OF SAN JUAN CAPISTRANO, a municipal corporation (the "City"). Bertolino, Agency and City are sometimes referred to together as the "Parties". In consideration of the promises made herein, the Parties agree as follows: RECITALS A. 1 BERTOLINO (hereafter sometimes referred to as "Grantee") is the owner of certain real property located in the County of Orange, State of California, as more particularly described on Exhibits "A" and "B", attached hereto and by this reference made a part hereof. The property described on Exhibit "A" is referred to herein as the "Footprint Property", and the property described on Exhibit "B" is referred to herein as the "Capistrano Plaza Property". The Footprint Property and the Capistrano Plaza Property may sometimes be referred to collectively as the "Grantee's Property". B. The Footprint Property is improved with certain improvements, including, but not limited to, a two story building and fences, walkways, walls and landscaping and similar incidental items, collectively referred to herein as the "Building", and is commonly known as 26755 Verdugo Street, in the City of San Juan Capistrano, State of California. C. The City is the owner of the public sidewalks which are immediately adjacent to the Footprint, and of the public streets, curbs, driveways and gutters which are in tum adjacent to such public sidewalks (collectively, the "Public Property"). 38483-001 \M0J0LMSllR VU 11003.1 0 0 D. The Agency, by virtue of its interest as a sub lessee under that certain Ground Lease dated March 8, 1971, between National Producers Life Insurance Company (the "Original Lessor") as Lessor, and Provincial Properties, Inc. (the "Original Lessee") as Lessee (the "1971 Lease"), may have acquired some right, title or interest in and to some or all of the real property or improvements ("Residual Rights Area") which surround the Footprint Property, which were a portion of the property governed by the 1971 Lease. Although the 1971 Lease is, or by the date of recordation of this Agreement will be, terminated, the Agency joins in this Agreement for the purpose of insuring that no residual rights remain in Agency which could operate to prohibit or interfere with Grantee's ingress and access to, or egress from, the Footprint Property and the private property improved with landscaping, sidewalks, parking areas, driveways and similar items which surrounds the Footprint Property. The Agency joins in the granting of the easements conveyed herein as its interests, if any, may appear, and no intention to create any new interest, or assume any obligations or liabilities which it would not otherwise have are to be deemed to be created by virtue of such joinder. E. The City is the owner of the Leasehold interest in the property described on Exhibit "C" hereto (the "Parking Lot"), pursuant to that certain Ground Lease Agreement dated July 15, 1982, between Antonin Bertolino, Echo May Bertolino, and Ralph A. Bertolino as landlord but referred to therein as "Owner" and the City as tenant but referred to therein as "City" (the "1982 Lease"). Bertolino is the current fee owner of the Parking Lot property, which is adjacent to both the Footprint Property and Capistrano Plaza. F. The City and the Agency are sometimes referred to herein collectively as "Grantor", and the Public Property, the Parking Lot, and the Residual Rights Area are sometimes collectively referred to herein as the "Easement Areas". G. The Parties desire to ensure that the Footprint Property and the Building has adequate utility service, and the right to repair, maintain and replace utility lines, pipes, and related improvements serving the Footprint Property and the Building, and have entered into this Agreement to accomplish same. Therefore, the Parties agree as follows: 1. Grant of Easement By City. The City hereby grants to Grantee, its successors and assigns with respect to Grantee's interest in the Building and the Footprint Property, a perpetual, non-exclusive easement for the use, installation, repair, maintenance, construction, operation and replacement of underground and aboveground utility and service lines, including but not limited to, water, sewer, gas, storm drains, telephone, electricity and other cable and communication lines (collectively, "the Utility Improvements"), in, under, and above the Public Property and the Parking Lot, at such locations and in such a manner, and in at least such capacity as exists as of the date hereof and presently serve the Footprint Property and the Building. The Parties acknowledge and agree that due to the age of the Building and the existing Utility Improvements, the exact location of some of the Utility Improvements may not be known exactly, or at all, but they nonetheless wish to grant the rights and make the agreements set forth herein. 38483.000INCHOLMSURV\311003.1 2 2. Grant of Easement By Agency. The Agency, as and if its interest may appear, hereby grants to Grantee, its successors and assigns with respect to Grantee's interest in the Building and the Footprint Property, a perpetual, non-exclusive easement for the use, installation, repair, maintenance, construction, operation and replacement of the Utility Improvements, in, under, and above the Residual Rights Area, at such locations and in such a manner, and in at least such capacity as exists as of the date hereof and presently serve the Footprint Property and the Building. The Parties acknowledge and agree that due to the age of the Building and the existing Utility Improvements, the exact location of some of the Utility Improvements may not be known exactly, or at all, but they nonetheless wish to grant the rights and make the agreements set forth herein. 3. Reservation of Rights. The City, and its respective successors and assigns, and the Agency and its respective successors and assigns, with respect to the Residual Rights Area, each hereby reserve the right to use same for any purpose whatsoever so long as such use does not unreasonably interfere with the continuous and uninterrupted use of the easements by Grantee. 4. General Management of Easement Areas. (a) Obstruction of Easement Areas. Neither the City nor the Agency nor either of their employees, agents, subtenants, licensees, contractors will impair, nor will they permit the impairment by any of their respective guests, occupants, invitees and/or permitted of the continuous and uninterrupted use by Grantee of the easement rights granted herein, for the purposes set forth in this Declaration. (b) No Charge. Neither the City nor the Agency shall collect, attempt to collect or permit the collection of any charge for the use of, or access to or through any portion of the Easement Areas. 5. General Provisions. (a) Related Rights. The Easements granted herein shall also include such other incidental and related rights as are reasonably necessary for Grantee to enjoy and enforce its rights, and perform its duties, created herein. Such rights shall include, without limitation, the right, upon reasonable notice, (except in the event of an emergency in which case no notice shall be required, but Grantee shall notify Grantor of such emergency as soon as practicable) to enter upon Grantor's property where any of the Utility Installations are located for the purpose of constructing, maintaining, repairing, and replacing such Utility Installations. Grantee shall repair, at its sole cost and expense, any damage to Grantor's property caused by Grantee's entrance onto such property for the purposes set forth herein. (b) Indemnity. Grantor agrees to, and shall, indemnify, defend, hold harmless the City or the Agency, as relevant, from and against any and all liabilities, judgments, claims, demands, losses, damages, costs, including costs of defense, expenses and fees (including reasonable attorneys' fees and costs) arising from or related to the exercise of any easement rights by Grantee in a manner inconsistent herewith. 38483.0001' .ACHOLMSVRV\311003.1 0 9 (c) Easements and Covenants Binding on Successors and Assigns. The Easements and the terms, rights, conditions, restrictions and limitations contained herein with respect thereto shall burden and run with the property interests of the Grantors with respect to their respective property, shall be appurtenant to and run with the Footprint Parcel and the Building (including any replacement of same), and shall inure to the benefit of Grantee and any subsequent owner of the Building or the Footprint Property and their respective successors and assigns. The benefit and burdens of the Easements and covenants contained in this Agreement shall run with the referenced properties and property interests as covenants and equitable servitudes running with the land. (d) Exclusivity. The Easements granted hereunder are non-exclusive and each Grantor reserves the right to use and grant other easement rights in and to the Easement Areas, provided that such use and easement rights shall not materially interfere with the Easement rights granted hereunder. (e) Enforcement Rights. (i) Any Party, or their successors as provided herein, may enforce the provisions of this Agreement (i) by a suit for declaratory relief to determine the enforceability of any of the terms hereof, (ii) by an action in equity or otherwise for specific performance to enforce compliance with the terms hereof or for any injunction to enjoin the continuance of any breach or violation thereof, or (iii) through any other right or remedy to which such Party may be entitled at law or in equity. (ii) The rights and remedies established under this Agreement shall be deemed to be cumulative; and no one of such rights and remedies shall be exclusive of any other right or remedy which any Party might otherwise have by virtue of the terms of this Agreement or under law. The exercise of any particular right or remedy shall not impair the right to exercise any other right or remedy. (f) No Waiver. No waiver of any default hereunder shall be implied from any omission by any Party to take any action with respect to such default, if such default continues or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. A waiver of any default in the performance of any provision contained in this Agreement shall not be deemed to be a waiver of any subsequent default in the performance of the same provision or any other provision contained herein. (g) Mortgagee Protection. A breach of any or all of the terms, conditions, covenants or restrictions of this Agreement shall not defeat or render invalid the lien of any mortgage or deed of trust on the Easement Areas or the Footprint Property or the Building, but such terms, covenants, conditions, and restrictions shall be binding upon and effective against any parties whose title to such properties, or any portion thereof, is acquired by foreclosure, trustee's sale or otherwise. 3&483AOOIWCHOLMSURV\311003.1 4 0 0 (h) Attorneys' Fees. In the event of any controversy, claim or dispute relating to this Agreement or any breach thereof, the prevailing party shall be entitled to recover from the other party or parties its reasonable attorneys' fees and costs. (i) No Rights in Public. Nothing herein contained shall be deemed to create any rights in the general public, nor be deemed to be a gift or a dedication of any portion of any of any of the described property to or for the general public or for any public purpose whatsoever, it being the intention that this Agreement shall be strictly limited to and for the purposes herein expressed. 0) General Interpretation. (i) This Agreement shall be governed by, enforced and construed in accordance with the laws of the State of California. If any term, provision or condition contained in this Agreement (or the application of any such term, provision or condition) shalt to any extent be invalid or unenforceable, the remainder of this Agreement shall be valid and enforceable to the fullest extent permitted by law. The exhibits attached hereto are incorporated herein by this reference for all purposes. (ii) When the context in which the words are used herein indicates that such is the intent, words in the singular number shall include the plural and visa versa. All pronouns and any variations thereof shall be deemed to refer to all genders, and the terms Owner, Grantor, and Grantee shall include natural individuals, associations, trusts, estates and all other form of business entities. The captions of the paragraphs and subparagraphs herein are for convenience of reference only and shall not be considered or referred to in resolving questions of interpretation or construction. (iii) In all cases the language in all parts of this Agreement shall be construed simply, according to its fair meaning under California law. 6. Counterparts. This Ingress/Egress Easement Deed may be executed in counterparts and shall become effective upon execution by all the parties hereto and each such counterpart shall be deemed to be an original. 7. Modifications. No alteration or variation of this term of this Agreement shall be valid unless made in writing and signed by the parties hereto and recorded, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. CONTINUED ON NEXT PAGE 38483.0001 \MCH012AMV1311003.1 8. Attorneys' Fees. In the event of controversy, claim or dispute between the parties hereto arising out of or relating to this Agreement or the breach thereof, the prevailing party shall be entitled to recover from the other party reasonable expenses, reasonable attorneys' fees and reasonable costs. IN WITNESS WHEREOF, the parties hereto have executed this agreement on the dates opposite their respective signatures. "GRANTOR" CITY OF SAN JUAN CAPISTRANO Dated: 2003 By: Dated: 2003 By: Approved as to Form: By: Attorneys for City "GRANTEE" RALPH A. BERTOLINO, TRUSTEE OF THE RALPH A. BERTOLINO 1996 TRUST Dated: 2003 Ralph A. Bertolino, Trustee RALPH A. BERTOLINO, TRUSTEE OF THE RALPH A. BERTOLINO 1996 TRUST DBA CAPISTRANO PLAZA Dated: , 2003 By: Ralph A. Bertolino, Trustee 38483.0001\MCH0LMS1RN311003.1 6 State of California ) ss. County of ) On 2003 before me, personally appeared personally known to me (or 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. WITNESS my hand and official seal. Signature of the Notary My Commission Expires State of California ) ) ss. County of ) On 2003 before me, personally appeared personally known to me (or 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. WITNESS my hand and official seal. Signature of the Notary My Commission Expires 38483.0D01\MCH0LMSVRV\3110D3.1 7 State of California ss. County of On 2003 before me, personally appeared personally known to me (or 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. WITNESS my hand and official seal. Signature of the Notary My Commission Expires State of California ss. County of On 12003 before me, personally appeared personally known to me (or 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. WITNESS my hand and official seal. Signature of the Notary My Commission Expires 38483,00011MCHOLMSURV 1311003.1 State of California ss. County of On , 2003 before me, personally appeared personally known to me (or 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. WITNESS my hand and official seal. Signature of the Notary My Commission Expires 38483.0W11MCHOLMS\IRV13n1g3.1 9 San Juan Capistrano Community Redevelopment Agency NOTIFICATION OF MEETING OF POTENTIAL INTEREST SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY The Board of Directors of San Juan Capistrano Community Redevelopment Agency will meet at 7:00 p.m. on June 3, 2003, in the City Council Chamber in City Hall, to consider: "Consideration of Settlement Agreement by and between the City, the Agency and Ralph Bertolino to conclude the rent increase dispute at 26755 Verdugo Street -Vaquero West Mercantile" – Item No. C1 If you have specific thoughts or concerns regarding this item, you are encouraged to participate in this decision making process. You can communicate with the Board of Directors through correspondence addressed to the Board and/or by attending the meeting and speaking to the Board during the public meeting. Correspondence related to this item must be received at City Hall by 5:00 p.m. on Monday, June 2, 2003 to allow time for the Board to consider its content. If you would like to speak at the meeting, please complete a blue "Request to Speak" form found inside the entrance to the Council Chamber. This form is turned in at the staff table, just in front of the Council dais. You will be called to speak by the Chairman when the item is considered. You have received this notice at the request of the City staff member Douglas D. Dumhart, Principal Management Analyst. You may contact that staff member at (949) 443-6316 with any questions. The Community Redevelopment Agency agenda is available to you on the City's web site: www.sanjuancapistrano.org. Thank you for your interest, cc: —Steve McHolm, Snell and Wilmer; Tom Clark, Straddling, Yocca, Carlson and Rauth; Ralph Bertolino, C/O Haas Accounting; Tim Holsten; Bill Angermann; Douglas D. Dumhart, Principal Management Analyst " Received staff report 32400 Paseo Adelanto San Juan Capistrano California 92675 949-493-1171 MEMORANDUM TO: Memo to File FROM: Maria Guevara, Se, DATE: August 16, 2003 SUBJECT: Bertolino, Ralph A. Relevant files: CRA CITY 600.40 600.30 Settlement Agreement 2003 Settlement Agreement 2003 BERTOLINO, RALPH A. BERTOLINO, RALPH A. Verdugo Street, 26755 Verdugo Street, 26755 670.50 670.50 Ingress/Egress/Access Easement 2003 Ingress/Egress/Access Easement 2003 BERTOLINO, RALPH A. BERTOLINO, RALPH A. Verdugo Street, 26755 Verdugo Street, 26755 670.50 670.50 Utility Easement Deed 2003 Utility Easement Deed 2003 BERTOLINO, RALPH A. BERTOLINO, RALPH A. Verdugo Street, 26755 Verdugo Street, 26755 670.50 670.50 Grant Deed 2003 Quitclaim Deed 2003 BERTOLINO, RALPH A. BERTOLINO, RALPH A. Verdugo Street, 26755 Verdugo Street, 26755