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1994-0620_PRICE COMPANY, THE_Disposition and Development Agreement and Promissory Note 2nd Amdi SECOND AMENDMENT TO a DISPOSITION AND DEVELOPMENT AGREEMENT AND PROMISSORY NOTE THIS SECOND AMENDMENT ("Second Amendment") is made this ZO day of, 1994 by and between the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY (the "Agency") and THE PRICE COMPANY, a California corporation (the "Developer"). RECITALS x A. Agency and Developer are the parties to a Disposition and Development Agreement dated December 16, 1986 as amended by Amendment dated October 1, 1992 (referred to herein as the "DDA"); B. Pursuant to Section 302 of the DDA, the Agency issued a promissory note to the Developer (referred to herein as the "Note"); d C. Attachment No. 5 to the DDA captioned "Scope of Development" provides in Section IC that the "Site" may not be used for "Auto Dealers or Repair" unless part of the Price Club operation (referred to herein as the "Restriction"); D. Developer wishes to eliminate the Restriction so that the Developer is able to lease or sell a portion of the Site to be used by an auto dealership that sells, services and makes repairs with respect to new and used automobiles and trucks (referred to herein as the "Auto Business"); E. The Agency is willing to eliminate the Restriction thus permitting an Auto Business on the Site provided the Agency is permitted to retain an amount equal to Thirty Percent (30%) of the Tax Revenues generated by the Auto Business subject to all of the other terms and conditions of this Amendment; 0 0 (2) Paragraph (A)(1) above shall not apply if any provision of this Second Amendment is held to be invalid, void or otherwise unenforceable by a court of competent jurisdiction in which case one hundred percent (100%) of the Auto Tax Revenues shall be treated as Allocated Tax Revenues. B. In the event an Auto Business commences operations within the Site and thereafter is replaced with another business, (which is not prohibited under the DDA), the Tax Revenues from such replacement business shall be included within the term "Allocated Tax Revenues". 5. Auto Tax Revenues. J� A. The Agency shall pay to the Developer during each year from the date hereof until July 12, 2023, an amount equal to seventy percent (70%) of the Auto Tax Revenues. Such amount shall be paid quarterly within thirty (30) days after receipt by the City of sales tax verification from the State of California with respect to each calendar quarter. B. Payments by the Agency to the Developer under paragraph (A) above shall not be credited against the Note. 6. Unenforceability. In the event that any provision of this Second Amendment is held to be invalid, void or otherwise unenforceable by any court of competent jurisdiction, then this Second Amendment shall be deemed null and void; provided, however that, to the extent permitted by a court of competent jurisdiction, the provisions of paragraph 3 hereof (captioned "Restricted Use Eliminated") and paragraph 4A(2) shall survive any such adverse determination. The parties agree and it is their intention that paragraph 3 and paragraph 4A(2) survive notwithstanding the invalidity or unenforceability of any other provision of this Amendment. PUBL:15445_31201 B2299.62 3 0 NOW, THEREFORE, in consideration of the mutual covenants herein, the parties agree to amend the DDA as follows: 1. Terms and Definitions. a. All references to terms and definitions herein shall have the same meaning as in the DDA except as otherwise provided herein. b. All references to section numbers herein shall mean section numbers of the DDA except as otherwise provided herein. reference. 2. Incorporation of Recitals. The recital paragraphs above are incorporated into this Amendment by 3. Restricted Use Eliminated. a A. Attachment No. 5 to the DDA captioned "Scope of Development" is amended in the third paragraph of Section 1C thereof by striking the words "Auto dealers or repairs" and replaced with "auto repair unless part of an auto dealer". B. Notwithstanding anything in the DDA to the contrary there shall be no prohibition of the Auto Business. 4. Allocated Tax Revenues. A. (1) In the event at any time and from time to time, Tax Revenues are generated on the Site by a business (other than the Price Club) engaged in the Auto Business, such Tax Revenues (referred to herein as "Auto Tax Revenues") shall not be included within the term "Allocated Tax Revenues". rustA5445_31201112299.62 2 . • 0 7. Effect of Second Amendment. Except as amended herein the DDA is in full force and effect in accordance with its terms. EXECUTED as of the date first written above. SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY By: &�� >404,11 Chairman ATTEST i THE PRICE COMPANY, a California corporation �'r 2! �� By: Its: By: _ Its: APPROVED AS TO FORM X29� 0 Agency Special Counsel PUBLA5445_31201132299.62 4 AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT AND PROMISSORY NOTE AMENDMENT made this 1st day of October , 1991 by and between the San Juan Capistrano Redevelopment Agency (the "Agency") and THE PRICE COMPANY, a California corporation (the "Developer"). RECITALS A) Agency and Developer are the parties to a Disposition and Development Agreement dated December 16, 1986 (referred to herein as the "DDA"). B) Pursuant to Section 302 of the DDA the Agency issued a promissory note to the Developer (referred to herein as the "Note"). C) Section 303(2) of the DDA provides, in part, that if the Developer opens a Price Club or similar retail operation within ten (10) miles from the incorporated boundaries of the City of San Juan Capistrano the balance of the Note shall be deemed fully discharged. A similar provision is found in Paragraph 8 of the Note. D) The Developer wishes to open a Price Club on a site located on Technology Drive between Alton Parkway and Barranca Parkway in the City of Irvine, California (referred to herein as the "Irvine Site"). The Irvine Site is within ten (10) miles of the incorporated boundaries of the City of San Juan Capistrano. E) The Developer wishes the Agency to waive its right to have the Note discharged in the event a Price Club opens on the Irvine Site, and only on the Irvine Site. F) Section 303 of the DDA provides, in part, that payments by the Agency on the Note are based upon City sales taxes generated by the Price Club in San Juan Capistrano, and based upon the follow- ing allocation: (i) First $400,000.00 to Agency; (ii) Next $600,000.00 to Developer; (iii) Balance 50% to Agency and 50% to Developer. The Agency wishes to increase the first allocation to the Agency from $400,000.00 to $450,000.00 in the event a Price Club or similar retail operation opens for business on the Irvine Site. NOW THEREFORE, in consideration of the mutual covenants herein, the parties agree that the DDA and the Note are amended as provided herein. 1. The above Recitals of this Amendment. 090491:CAPISTRANO:AMEND01 are incorporated into and made part q 0 2. All references to section numbers herein shall mean sections of the DDA unless otherwise indicated. 3. All references to terms herein shall mean the terms of the DDA unless otherwise indicated. 4. Notwithstanding anything to the contrary in the DDA or the Note, in the event a Price Club or similar retail operation opens for business on the Irvine Site the Note shall not be discharged and shall remain in full force and effect. 5. Notwithstanding anything to the contrary in the DDA or the Note, in the event a Price Club or similar retail operation opens for business on the Irvine Site then on such date Section 303(1)(b) of the DDA and Paragraph 7(b) of the Note shall each be deemed to be amended in its entirety to read as follows: "(b) "Allocated Tax Revenues" shall mean the tax reve- nues considered allocated each Note Year to the Developer based upon the following allocation each Note Year: (1) First $450,000.00 to Agency; (2) Next $600,000.00 to Developer; (3) Balance 50% to Agency and 50% to Developer." 6. In the event a Price Club or similar retail operation opens for business on the Irvine Site on a day other than the first day of a Note Year, the $50,000.00 increase in sales tax allocation to the Agency (from $400,000.00 to $450,000.00) shall be prorated based upon the portion of the Note Year from the date the Price Club opens on the Irvine Site until the end of such Note Year. 7. This Amendment shall be terminated without action by either party and the provisions hereof shall be of no further force or effect in the event that a Price Club or similar retail operation does not open for business on the Irvine Site within twelve (12) months after the Developer acquires fee title to the Irvine Site; provided, however, that in the event that Developer shall be delayed or hindered in or prevented from constructing and/or opening a Price Club by reason of strikes, weather conditions, lockouts, litigation, unavailability of materials, failure of power, governmental laws or regulations, delay in obtaining governmental permits or approvals, riots, insurrections, war, or other reason beyond its control, then the twelve (12) month period as aforementioned shall be deemed extended for the period of the delay; provided, however, that notwithstanding the above, this Amendment shall be terminated without action by either party and the provisions hereof shall be of no further force or effect without regard to the aforementioned force majeure provisions, in the event that the Developer fails to acquire fee title to the Irvine Site within three (3) years from the date hereof. 090491:CAPISTRANO:AMEND01 - 2 - 8. Except as amended herein the DDA and the Note remain in full force and effect. Executed as of the date first written above. 1 SAN JUAN CAPISTRANO COMMUNITY REDEVELAp9kNT AGENCY ATTEST: By Approved as to form: Agency Counsel ive THE PRICE COMPANY By: )2y - President 090491:CAPISTRANO:AMEND01 - 3 - • RECORDED AT THE REQUEST OF AND RETURN TO: City of San Juan Capistrano City Clerk's Department 32400 Paseo Adelanto San Juan Capistrano, CA 92675 9) RECORDING FEES EXEMPT DUE TO GOVERNMENT CODE SECTION 6103 Cheryl John n, eity Clerk City of San Juan Capistrano, CA NOTICE OF COMPLETION WHEREAS, by Grant Deed recorded on June 17, 1987, as Document No. 87-342095 of the Official Records of the County Recorder of the County of Orange, California, the San Juan Capistrano Community Redevelopment Agency, a public body, corporate and politic, sometimes hereinafter referred to as "Agency", conveyed to THE PRICE COMPANY, a California corporation, sometimes hereinafter referred to as the "Developer", certain real property situated in the City of San Juan Capistrano, California, described on Exhibit "A" attached hereto and made a part hereof; and WHEREAS, the Grant Deed incorporates by reference that certain Disposition and Development Agreement by and between the San Juan Capistrano Community Redevelopment Agency and the Price Company, dated December 16, 1986, hereinafter referred to as the "Agreement"; and WHEREAS, as referenced in said Agreement, the Agency shall furnish the Developer with a Notice of Completion upon completion of construction and development, such Notice shall be in such form as to permit it to be recorded in the Official Records of the County Recorder of the County of Orange, California; and WHEREAS, such Notice of Completion shall constitute a conclusive determination by the Agency of the satisfactory completion by the Developer of the construction and development required by the Agreement and of the Developer's full compliance with the terms of the Agreement with respect to such construction and development; and WHEREAS, the Agency has conclusively determined that the construction and development on the real property described in Exhibit "A" required by the Agreement has been satisfactorily completed by the Developer in full compliance with the terms of the Agreement. NOW THEREFORE, 1. As provided in the Agreement, the Agency does hereby certify and determine that the construction and development on the real property described in Exhibit "A" has been fully and satisfactorily performed and completed in full compliance with the terms of the Agreement, and the plans and specifications for the project. 2. Except as otherwise expressly provided in this Notice of Completion, nothing contained in this instrument shall modify in any other way any other provisions of the Agreement. IN WITNESS WHEREOF, the Agency has executed this Notice of Completion this day of —M*19.e, , �9FJ SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY By: Exec tive Director STATE OF CALIFORNIA ) COUNTY OF ORANGE )SS. CITY OF SAN JUAN CAPISTRANO ) I, Cheryl Johnson, the duly appointed and qualified City Clerk of the City of San Juan Capistrano, California, do hereby certify under penalty of perjury that the foregoing Notice of Completion is true and correct, and that said Notice of Completion was duly and regularly ordered to be recorded in the Office of the Orange County Recorder by said City Council of the City of San Juan Capistrano. Dated at San Juan Capistrano this 2-5t'�" day of 14+tzGN 1991. John&,yfi, fiVity Clerk mISIT "0 E7-342095 DESCRIPTION: PARCEL is THAT PORTION OF THE RANCHO DOCA_BE_LA IPMYA,_tN_TIE_CITY 0► OF TO TO EXCEPT THAT PORTION THEREOF LYING EASTERLY OF THE CENTER LINE OF IN STATE HIGHWAY AS DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA. RECORDED APRIL S, 1970 IN BOOK 773. PAGE ", OFFICIAL RECORDS. SUBSTANCES THEREFROM SAID L�NDD AiDIRLESER ESD IN THE DEED FROM N A MARRIED MAN, RECORDED JANUARY 25, 1991 IN DOOR 2150, ►AGE 320, RECORDS. LT:17A(II1S4 iIRST YESTERN BANK AMD TRUST C011►ANY, RECORDED JANUARY 3, PAGE 994. OFFICIAL RECORDS. PARCEL 2: BEGINNING AT THE INTERSECTION Of THE CASTERLY LINE OF THE PRYOR MON99TEAD AS `sCRIDED IN DECREE RECORDED IN BOOK 1. PAGE :1 OF HOMESTEADS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA. WIT" TIE CENTERLINE OF THE CALIFORNIA STATE HIGHWAY AT ENGINEER'S STATION 410 ♦ 49.24 TM[RlWs THENCE FOLLOWING IN[ EASIWEST EALy 265.41 NFEET AND SOUTH 27OF SAID PRYOR D EGREES 40MIN TES 40 STH 21 ECONDS S 53 MINUTES 197 61 [FELTS OT -3.0 5 POINT LESS TRAM SN FEET TNER[FRON. AS RESERVED IN DEED RECORDED AOWST 01. I9461 IN DOOR 5E34, PAGE DN. OFFICIAL RECORDS. SAID PARCELS OF LAND ARE :ODYN ON A NO FILED FOR RECORD IN DOW 117. ►AGE 44 OF RECORD OF SY MVS. IN THE OFFICE OF THE COMP RECORDER OF :AID COtMM. DISPOSITION AND DEVELOPMENT AGREEMENT by and between SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY and THE PRICE COMPANY, DEVELOPER 0 0 TABLE OF CONTENTS Page I. [§100] SUBJECT OF AGREEMENT ................. 1 A. [§101] Purpose of Agreement ................. 1 B. [§102] The Redevelopment Plan ............... 1 C. [§103] Description of the Site .............. 1 D. [§104) Parties to the Agreement ............. 2 1. [§105] The Agency ...................... 2 2. [§106] The Developer ................... 2 3. [§107] Prohibition Against Change in Ownership, Management and Control of Developer and Operator .................... 2 4. [§108] Developer's Authority ........... 3 5. [§109] Agency's Authority .............. 3 6. [§110] Extension of time to Perform .... 3 II. [§200) ASSEMBLY OF THE SITE ................. 3 A. [§201] Assembly Procedures.................. III. [§300] LOAN BY DEVELOPER TO AGENCY .......... 5 A. [§301] Loan ................................. 5 B. [§302) Promissory Note 5 C. [§303] Method of Note Repayment ............. 6 IV. [§400] DISPOSITION OF THE SITE .............. 7 A. [§401] Disposition Conveyance ............... 7 B. [§402] Conditions Precedent ................. 8 (i) 0 0 Page C. [§403] Escrow ............................... 11 D. [§404] Conveyance of Title .................. 14 E. [§405] Form of Deeds ........................ 14 F. [§406] Condition of Title - Title Insurance ............................ 14 G. [§407] Recordation of Documents ............. 14 H. [§408] Separate Legal Parcel ................ 15 I. [§409] Right of Entry ....................... 15 V. [§500] DEVELOPMENT OF THE SITE .............. 15 A. [§501] Development of the Site by the Developer ........................ 15 1. [§502] Scope of Development ............ 15 2. [§503] Plans and Drawings .............. 15 3. [§504] Cost of Construction ............ 16 4. [§505] Construction Schedule ........... 16 5. [§506] Bodily Injury and Property Damage Insurance ................ 16 6. [§507] City and Other Governmental Agency Permits .................. 17 7. [§508] Rights of Access ................ 18 8. [§509] Local, State and Federal Laws ... 18 9. [§510] Antidiscrimination During Construction .................... 18 B. [§511] Taxes, Assessments, Encumbrances and Liens ............................ 18 C. [§512] Prohibition Against Transfer of the Site, the Buildings or Structures Thereon and Assignment of Agreement ......................... 19 Page D. [§513] Holder Not Obligated to Construct Improvements ......................... 19 E. [§514] Notice of Default to Mortgage or Deed of Trust Holders; Right to Cure .............................. 19 F. [§515] Failure of Holder to Complete Improvements ......................... 20 G. [§516] Right of the Agency to Cure Mortgage or Deed of Trust Default ............. 21 H. [§517] Right of the Agency to Satisfy Other Liens On the Site After Title Passes ......................... 21 I. [§518] Certificate of Completion ............ 21 VI. [§600] USE OF THE SITE ...................... 22 A. [§601] Uses ................................. 22 B. [§602] Non -Discrimination ................... 22 C. [§603] Effect and Duration of Covenant ...... 24 D. [§604] Rights of Access ..................... 24 VII. [§700] DEFAULTS AND REMEDIES ................ 25 A. [§701] Defaults - General ................... 25 B. [§702] Legal Actions ........................ 25 1. [§703] Institution of Legal Action ..... 25 2. [§704] Applicable Law .................. 25 3. [§705] Acceptance of Service of Process ......................... 25 C. [§706] Rights and Remedies Are Cumulative ... 26 D. [§707] Inaction Not a Waiver of Default ..... 26 E. [§708] Damages .............................. 26 U Page F. [§709] Specific Performance ................. 26 G. [§710] Remedies and Rights Prior to the Legal Description Attachment No. Acquisition Transfer ................. 26 Attachment 1. [§711] Termination by the Agency ....... 26 H. [§712] Attorneys Fees ....................... 27 VIII. [§800] GENERAL PROVISIONS ................... 27 A. [§801] Notices, Demands and Communications Price Club Radius Restriction Map Attachment No. Between the Parties .................. 27 B. [§802] Conflicts of Interest ................ 28 C. [§803] Enforced Delay; Extension of Times of Performance ................. 28 D. [§804] Non -liability of Officials and Employees of the Agency .............. 28 E. [§805] Brokers .............................. 29 IX. [§900] ENTIRE AGREEMENT; WAIVERS, CONSENT ... 29 X. [§1000] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY ............................ 29 ATTACHMENTS Attachment No. 1 Map Attachment No. 2 Legal Description Attachment No. 3 Schedule of Performance Attachment No. 4 Agency Deed Attachment No. 5 Scope of Development Attachment No. 7 Form of the Note Attachment No. 8 Price Club Radius Restriction Map Attachment No. 9 Certificate of Completion Form (iv) • 0 DISPOSITION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into by and between the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY (the "Agency") and THE PRICE COMPANY, a California corporation (the "Developer"). The Agency and the Developer hereby agree as follows: [§100] SUBJECT OF AGREEMENT A. [§101] Purpose of Agreement The purpose of this Agreement is to effectuate the Redevelopment Plan (as hereinafter defined) for the Central Redevelopment Project, as therein defined (the "Project") by providing for the disposition and development of certain property situated in the Project Area (the "Project Area") of the Project. That certain area which is to be developed pursuant to this Agreement (the "Site") is depicted on the "Map," which is attached hereto as Attachment No. 1 and incorporated herein by reference. This Agreement is entered into for the purpose of redeveloping the Site and not for speculation in land holding. Completing the development on the Site pursuant to this Agreement is in the vital and best interest of the City of San Juan Capistrano, California (the "City") and the health, safety, morals and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local laws and requirements under which the Project has been undertaken. B. [§102) The Redevelopment Plan The Redevelopment Plan was approved and adopted by Ordinance No. 488 of the City Council of the City of San Juan Capistrano as was amended by Ordinance Numbers 509, 547 and 582; said ordinances and the Redevelopment Plan as so amended (the "Redevelopment Plan") are incorporated herein by reference. C. [§103] Description of the Site The "Site" is that certain real property so designated on the Map (Attachment No. 1) and described in the "Legal Description", which is attached hereto as Attachment No. 2 and is incorporated herein by reference. The Site, which consists of approximately 23.032 gross acres, is located within the corporate limits of the City and within the Project Area. D. [§104] Parties to the Agreement 1. [§105] The Agency The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California. The principal office of the Agency is located at City Hall, 32400 Paseo Adelanto, San Juan Capistrano, California, 92675. "Agency", as used in this Agreement, includes the San Juan Capistrano Redevelopment Agency, and any assignee of or successor to its rights, powers and responsibilities. 2. [§106] The Developer The Developer is The Price Company, a California corporation, or any permitted assignees. The office and mailing address of the Developer for purposes of this Agreement is The Price Company, 2550 5th Avenue, Suite 629, San Diego, California 92103. 3. [§107] Prohibition Against Change in Ownership, Management and Control of Developer and Operator The qualifications and identity of the Developer are of particular concern to the City and the Agency. It is because of those qualifications and identity that the Agency has entered into this Agreement with the Developer. Prior to issuance of a Certificate of Completion, no voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement except as expressly set forth herein. Prior to issuance of a Certificate of Completion and subject to the provisions of Section 512, hereof, the Developer shall not assign all or any part of this Agreement or any rights hereunder without the prior written approval of the Agency, in its sole and absolute discretion. All of the terms, covenants and conditions of this Agreement shall be binding upon and shall inure to the benefit of the Developer and the permitted successors and assigns of the Developer. Whenever the term "Developer" is used herein, such term shall include any other permitted successors and assigns as herein provided. 12-09-86 2199k/2299/16 -2- 4. [§108] Developer's Authority Developer represents and warrants that it is a corporation organized and existing under the laws of the State of California, having its principal place of business in the County of San Diego, California; that the officers executing this Agreement are authorized to execute same on behalf of the Developer, and that all other documents delivered by Developer to Agency, now or at the close of escrow, have been or will be duly authorized, executed and delivered by Developer; and are legal, valid and binding obligations of Developer; and are enforceable in accordance with their respective terms; and do not violate any provision of any agreement to which Developer is a party. 5. [§109] Agency's Authority The Agency represents and warrants that: (i) it is a redevelopment agency duly organized and existing under the laws of the State of California; (ii) by proper action of the Agency, the Agency has been duly authorized to execute and deliver this Agreement, acting by and through its duly authorized officers; (iii) this Agreement does not violate any provision of any other Agreement to which the Agency is a party; and (iv) to the best of Agency's knowledge there is no claim, suit, demand, litigation or administrative proceeding threatened or pending as of the date hereof with respect to or in connection with this Agreement or the Redevelopment Plan. 6. [§110] Extension of Time to Perform The Executive Director of the Agency is authorized to approve extensions of time to the Developer relating to the Schedule of Performance. II. [§200] ASSEMBLY OF THE SITE A. [§201] Assembly Procedures 1. Pursuant to the Redevelopment Plan, the Agency has entered into a written contract dated July 1, 1986 (the "Great Western Agreement") to acquire the "Site" from Great Western Savings and Loan Association (the "Owner"). The Great Western Agreement has been amended by written amendment dated December 2, 1986 ("Great Western Agreement, as amended"), pursuant to which Great Western has agreed to extend the time within which to close escrow, as follows: (a) Upon the payment of One Hundred Thousand Dollars ($100,000) all cash to Great Western on or before December 17, 1986, close of escrow shall be extended to on or before March 30, 1987. 12-09-86 2199k/2299/16 -3- 0 0 (b) Six (6) additional one-month extensions shall be permitted at the election of Agency at the rate of Thirty Thousand Dollars ($30,000) per month, payable all cash to Great Western. (c) All of the above deposits shall be forfeitable but applicable to the Purchase Price. Concurrently with the Agency's acquisition of the Site, the Agency agrees to sell and transfer the Site to the Developer and the Developer agrees to purchase and acquire the Site from the Agency subject to the terms and conditions of this Agreement. 2. Subject to the fulfillment of<Conditions Precedent, the Agency agrees to use diligent efforts to acquire by voluntary purchase the Site from the Owner for the amount of Ten Million Five Hundred Thirty Four Thousand Three Hundred Seventy Seven Dollars ($10,534,377) (the "Acquisition Price"). The conveyance of the Site by the Owner to the Agency shall constitute the "Acquisition Conveyance". 3. By the time established therefore in the Schedule of Performance (Attachment No. 3), the Developer shall deposit into escrow or on behalf of the Agency, as the case may be, the amount of Thirteen Million, Forty -Nine Thousand, Three Hundred Seventy - Seven Dollars ($13,049,377), or such lesser amount as may be required, consisting of (i) the amount of Three Million One Hundred Thirty -Six Thousand Three Hundred Twenty Dollars ($3,136,320) (the "Price Parcel Amount") representing the Purchase Price payable by the Developer to the Agency for that portion of the Site consisting of twelve (12) acres (referred to as the "Price Portion") (deposit into escrow); (ii) the amount of Four Million Eight Hundred Five Thousand Five Hundred Forty Dollars ($4,805,540) (the "Retail Portion Amount") representing the Purchase Price payable by the Developer to the Agency for that portion of the Site consisting of approximately eleven and 032/100 (11.032) acres (the "Retail Portion") (deposit into escrow); (Subparagraphs (i) and (ii) represent a total Purchase Price of Seven Million Nine Hundred Forty One Thousand Eight Hundred Sixty Dollars ($7,941,860)) for the Site; (iii) an amount not to exceed Five Million One Hundred Seven Thousand Five Hundred Seventeen Dollars ($5,107,517) (the "Loan") as a loan to the Agency representing the writedown of the Site ($10,534,377 - $7,941,860 = $2,592,517) (deposit into escrow); plus the estimated cost of offsite and onsite improvements ($1,722,500) (payment by Developer on behalf of Agency for design and construction of offaite and onsite improvements as provided in the Scope of Development), plus Development Fees required to be paid by the Agency as provided in the Scope of Development ($775,000), and 12-09-86 2199k/2299/16 -4- • 0 the cost of an environmental impact report ($17,500) required to be paid by the Agency (deposit into escrow). With respect to the additional deposits required by Great Western to extend the close of escrow described in Paragraph 1 of this Section 201, Agency and Developer shall each pay one-half. Agency agrees to extend the Great Western Escrow to March 30, 1987 on a month by month basis as required but no later than June 30, 1987 provided this Agreement has not been sooner terminated. In the event that the acquisition from Great Western fails to close for any reason and said monies are forfeited to Great Western then, in that event, Agency and Developer shall each forfeit the monies so deposited and neither party shall have any further rights or obligations with respect to the other. In the event that the escrow closes as set forth in the Great Western Agreement, as amended, and the escrow provided herein closes, the amounts advanced by the Agency to Great Western for extension of the time of Closing shall be reimbursed to the Agency by Developer upon close of Escrow and included within the Loan described in Section 301 hereof. The amounts advanced by Developer shall reduce the amount to be deposited by Developer into Escrow pursuant to Paragraph 3 of this Section 201 as part of the Purchase Price. III. [§300] LOAN BY DEVELOPER TO AGENCY A. [§301] Loan 1. The Developer shall loan (the "Loan") to the Agency the principal sum of Five Million One Hundred Seven Thousand Five Hundred Seventeen Dollars ($5,107,517) referred to in Section 201(3) above or such lesser amount as required to be loaned under the terms of this Agreement as set forth in Paragraph 2 of this Section 301. 2. The Agency shall use the Loan only for the following purposes: $2,592,517 to be applied towards the acquisition of the Site by the Agency and the balance of the Loan for (i) an environmental impact report; (ii) off-site and onsite improvements required to be paid for by the Agency in the Scope of Development; and (iii) development fees required to be paid for by the Agency as provided in the Scope of Development. In the event that any portion of the Loan funds received by the Agency has not been expended within one (1) year after issuance of a Certificate of Completion for the Site, such portion not expended shall be returned to the Developer in principal reduction of the outstanding Loan balance. 12-09-86 2199k/2299/16 -5- 0 0 B. [§302] Promissory Note Simultaneously with the advance of any Loan funds by Developer, the Agency shall deliver to the Developer through escrow the Agency's promissory note in a form substantially the same as the note attached hereto as Attachment 7 (the "Note"). The Note shall be non -assignable and the City shall have no obligation with respect to the Note. C. [§303] Method of Note Repayment 1. Definitions. For purposes of this section, the following terms shall apply: (a) "Tax Revenues" for a Note Year shall mean an amount equal to one hundred percent (100%) of that portion of taxes derived by the City and/or the Agency from the imposition of the Bradley Burns Uniform Local Sales and Use Tax Law commencing with Section 7200 of the Revenue and Taxation Code of the State of California, as amended, arising from all businesses and activities conducted on the Site from time to time, which are subject to such Sales and Use Tax Law. (b) "Allocated Tax Revenues" shall mean the Tax Revenues considered allocated each Note Year to the Developer based upon the following allocation each Note Year: (1) First $400,000 to Agency; (2) Next $600,000 to Developer; (3) Balance 50% to Agency and 50% to Developer. (c) "Note Year" means (i) the twelve (12) calendar months beginning on the first day that a new Price Club facility is open (on the Property) for business to the public, and (ii) each twelve (12) calendar months thereafter. If the Price Club opens on a day other than the first day of a calendar month, the first NOTE year shall consist of the twelve calendar months beginning with the first calendar month after the date the Price Club opens plus the period from the date of the opening until the first day of the first calendar month after the opening. 12-09-86 2199k/2299/16 -6- (d) "Payment Date" means the last day of the sixth month of any such Note Year and the first day of any such Note Year. (e) "Interest Rate" means prime rate as charged by Bank of America NT as of seven (7) days prior to the close of escrow. 12-09-86 2199k/2299/16 -6- 0 0 (£) "Debt Service Payment" means each and every payment required to be made by the Agency under paragraph 2 below in repayment of principal and interest on the Agency Note. 2. Note Payment Provided Developer has completed and opened a Price Club for business and Developer has not opened another Price Club or similar retail operation within ten (10) miles from the incorporated boundaries of the City of San Juan Capistrano as such boundaries presently exist as shown in Attachment No. 8, in which later event the balance of Note shall be deemed fully discharged, the Agency shall make Debt Service Payments on each Payment Date during each Note Year in an amount equal to the total allocated Tax Revenues for the Note Year as of the Payment Date less any Debt Service Payment previously paid to Developer for such Note Year. Debt Service Payments shall be credited to the payment of all accrued but unpaid Interest and the balance to principal. Debt Service Payments shall be made for a period of twenty-three (23) Note Years less one (1) year for each $120,000 in principal reduction as a result of repayment by Agency to Developer of any unexpended portion of the Loan pursuant to Paragraph 2 of Section 301 hereof. In the event that Debt Service Payments are insufficient to fully discharge the Note within the Note Years described in the sentence immediately preceding then, in such event, the unpaid balance of the Note, including any accrued interest, shall be deemed forgiven. 3. Covenant Regarding Sales Tax. In the event that the Agency fails to make Debt Service Payments on any Payment Date and fails to cure same within thirty (30) days after written notice from the Developer, Agency hereby covenants to adopt a resolution or ordinance setting a tax rate (in an amount sufficient to provide funds to satisfy the Agency's debt to the Developer under the Note) upon all retail sales in the Project Area pursuant to the Ordinance described in Subparagraph (c) of Paragraph 1 in Section 402 hereof and to transmit same to the State Board of Equalization upon adoption. Upon receipt of such sales and use tax from the State, Agency shall forthwith make Debt Service Payments as described herein. All sales taxes to be received by the Agency pursuant to this paragraph 3 are deemed pledged to secure the Agency's debt to Developer. IV. [§400) DISPOSITION OF THE SITE 12-09-86 2199k/2299/16 -7- A. [§401] Disposition Conveyance Concurrent with Acquisition Conveyance, the Agency shall convey the Site to the Developer pursuant to the Agency Deed (Attachment No. 4); such conveyance shall constitute the "Disposition Conveyance". The Developer and the Agency shall execute the Agency Deed (Attachment No. 4) by the time established therefor in the Schedule of Performance (Attachment No. 3); provided that the execution by the Agency of said Agency Deed shall be subject to and conditioned upon the prior or concurrent satisfaction by the Developer of the "Conditions Precedent", as set forth in Section 402 of this Agreement. B. [§402] Conditions Precedent Developer's Conditions Precedent Developer's obligations to advance funds, and purchase the site are subject to all of the following conditions being first approved or waived by the Developer; any approvals being made in Developer's sole and absolute discretion: (a) Developer's obligation to purchase the Site is conditioned upon Developer approving (or waiving) the physical condition of the Property, including a soils report, to be obtained by Developer at its expense. If Developer does not notify Agency of ite approval or waiver of the soils report, or notifies Agency of its disapproval, within forty-five (45) days after the date hereof, this condition shall be deemed not satisfied and this Agreement shall be deemed terminated. Approval shall constitute assumption by Developer of obligations, if any, imposed by Health & Safety Code 25298 and Developer hereby indemnifies and holds Agency harmless with respect thereto. (b) Developer's obligation to purchase the Site is conditioned upon (i) Developer first obtaining all required zoning, governmental land use permits and approvals, site plan and architectural approvals, building permits, and other permits under conditions satisfactory to Purchaser (such permits, approvals and licenses referred to as ("Permits") for the immediate construction and operation on the Site as determined by Developer of a Price Club and shopping center (the "Planned Use"), (ii) Developer 12-09-86 2199k/2299/16 -8- 0 E being satisfied with respect to all engineering and feasibility studies, drainage, topography, utilities, traffic, ingress and egress and related issues with respect to Developer's development of the Site, (iii) sewer, water, drainage, telephone, gas and electric utility lines being within a public street adjacent to the Site, and immediately available for use and connection with size and capacity adequate to properly serve Developer's development and operation of the Planned Use on the Site without governmental restrictions or prohibitions and subject only to payment of usual front foot benefit charges, connection fees and consumption charges associated therewith, and without the requirements of obtaining easements from other property owners for the extension and connection of any and all of such utilities. If, on or before June 30, 1987, Developer does not notify Agency that all conditions of this Section are satisfied or waived, or notifies Agency of such dissatisfaction, then such conditions shall be deemed not satisfied and this Agreement shall be deemed terminated. (c) No later than sixty (60) days after the date of this Agreement the City passes an ordinance under Revenue and Taxpayer Code Section 7202.5 providing for a credit for sales and use taxes paid to the Agency and the Agency adopting a sales and use tax ordinance under Revenue and Taxation Code 7202.6 which will impose a tax upon all retail sales in the Project Area under the terms and conditions set forth herein. If such ordinances are not passed by the City and the Agency within such sixty (60) day period Developer may terminate this Agreement at any time prior to close of escrow. (d) Developer's obligation to purchase the Site is subject to Developer approving (or waiving) the legal description (including the size) of the Site and all title exceptions in the preliminary title report obtained by Developer (other than liens and encumbrances which Agency covenants to eliminate prior to close of escrow) (collectively referred to as "Title 12-09-86 2199k/2299/16 -9- 0 0 Matters") within fifteen (15) days after the date of this Agreement and receipt of all Title Documents including an up to date title report and all exception documents. If Developer does not notify Agency of its approval or disapproval of the Title Matters within the fifteen (15) day time limit, this condition shall be deemed satisfied. If, within such fifteen (15) day period, Developer, at its option, notifies Agency of objections to particular title exceptions, Agency may, within ten (10) days thereafter ("Cure Period"), at its option, give Developer notice of Agency's covenant to have some or all of such objected exceptions eliminated as title defects prior to close of escrow. I£ Agency covenants to have all objected exceptions eliminated, the conditions of this Section 402(1)(d) shall be deemed satisfied and Agency must deliver title free of those objected exceptions. If Agency does not agree to cure all objections, then Developer may, at its option, within ten (10) days after the ten (10) day Cure Period, give Agency notice of Developer's election to waive its objection to those exceptions which Agency does not covenant to cure, in which case the conditions of this Section 402(1)(d) shall be deemed satisfied, and Agency must deliver title free of those exceptions which it has agreed to cure. If Developer does not waive its objections, Developer's obligation to purchase the Site shall be deemed terminated. The foregoing items (a) to (d) inclusive constitute the "Developer Conditions". 2. Agency's Conditions Precedent As conditions precedent (or concurrent) to the obligations of the Agency to acquire the Site, execute the Agency Deed (Attachment No. 4) or to effect the Disposition Conveyance, the Developer Conditions shall have been satisfied or waived by Developer and further the Developer shall complete all of the following: a. the Developer shall certify in writing that the Developer has determined based upon its own investigation that soil conditions and zoning are in all respects satisfactory and that the Developer knows of no reason that 12-09-86 2199k/2299/16 -10- 0 0 it will not proceed to acquire the Site and develop and operate improvements pursuant to this Agreement; and b. the Developer executes the Agency Deed (Attachment No. 4); and As a condition precedent to the Agency conveying the Site to the Developer, the Owner shall convey the Site to the Agency in exchange for the Acquisition Price, free of possession, and with title conforming to the requirements of the Agency and the Developer. The foregoing conditions, together with the Developer Conditions shall collectively constitute the "Conditions Precedent". Closing Conditions The Developer's obligation to purchase and develop the Site and Agency's obligation to acquire and convey the Site are subject to the condition that there is no pending litigation which would prohibit Developer from acquiring and developing the Site in accordance with the terms of this Agreement unless this condition is waived by Developer and Agency. C. [§403] Escrow The Agency and Developer agree to open an escrow (the "Escrow") with Ticor Title Insurance Company, Orange County, California (or with a mutually agreeable escrow company) (the "Escrow Agent"), by the time established therefor in the Schedule of Performance (Attachment No. 3). This Agreement constitutes the joint basic escrow instructions of the Agency and the Developer for the conveyance of the Site from the Agency to the Developer pursuant to the Agency Deed (Attachment No. 4); a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. The Agency and the Developer shall provide such additional escrow instructions as shall be necessary for and consistent with this Agreement. No provision of additional escrow instruction shall modify or change this Agreement. The Escrow Agent is hereby empowered to act under this Agreement, and the Escrow Agent, upon indicating within five (5) days after the opening of the Escrow its acceptance of the provisions of this Section 403, in writing, delivered to the Agency and the Developer, shall carry out its duties as Escrow Agent hereunder. 12-09-86 2199k/2299/16 -11- 0 0 Upon delivery by the Owner of (i) grant deeds by the Owner conveying the Site to the Agency and delivery of the Agency Deed (Attachment No. 4) and the Note duly executed by the Agency, the Escrow Agent shall record (i) the grant deeds conveying the Site to the Agency; and thereafter (iii) the Agency Deed (Attachment No. 4), when title can be vested in Developer, all in accordance with the terms and provisions of this Agreement. Any liability or casualty insurance policies covering the Site or any parcel are not to be transferred. Upon close of escrow the Escrow Agent shall insert the date of the Note and deliver same to Developer. The Agency shall submit instructions for the acquisition of the Site from the Owner. The content of those instructions is a matter of no concern to the Developer and will be handled outside the scope of this Agreement. In connection with the conveyance of the Site from the Agency to the Developer, Escrow Agent shall charge the Agency out of the Purchase Price; (i) cost of transfer taxes; (ii) any amount due Developer resulting from prorations; (iii) usual Agency's document drafting charges; (iv) release fees on any encumbrances; (v) one-half any escrow fee or escrow termination charge; and (vi) title insurance premiums for a CLTA standard owner's policy. Developer shall pay for the following: (i) any amount due Agency resulting from prorations; (ii) one-half of any escrow fee or escrow termination charge; (iii) usual Developer's document drafting and recording charges; and (iv) the difference between the cost of title insurance premium for a standard owner's policy and the cost of any additional title insurance coverage requested by Developer. The Escrow Agent is authorized to: 1. Pay and charge the Developer or Agency, as provided above, for any fees, charges and costs payable under this Section 403 0£ this Agreement. Before such payments or charges are made, the Escrow Agent shall notify the Agency and the Developer of the fees, charges and costs necessary to clear title and close the Escrow. 2. Disburse funds and deliver the deed and other documents to the parties entitled thereto when the conditions of this Escrow have been fulfilled by the Agency and the Developer. Funds shall not be disbursed by the Escrow Agent unless and until the Escrow Agent has recorded the grant deeds for the Disposition Conveyance and the Agency Deed (Attachment No. 4), and has delivered to the 12-09-86 2199k/2299/16 -12- Developer a title insurance policy insuring the interest of the Developer in conformity with Section 406 of this Agreement. 3. Record any instruments delivered through this Escrow, if necessary or proper, to vest title in the Developer in accordance with the terms and provisions of this Agreement. All funds deposited by Developer into this Escrow shall be held in an insured interest-bearing account with all accrued interest credited to the account of the Developer until close of escrow or termination of this Agreement as the case mey be. All disbursements shall be made by check of the Escrow Agent. All adjustments are to be made on the basis of a thirty (30) day month. On any occasion when Escrow Agent is required to pay funds from the Escrow Deposit to either the Agency or Developer, it shall transmit such funds by check by United States overnight express mail or, if so instructed by the party entitled to the funds, by federal wire transfer. The Escrow Agent shall not cash any checks received from Developer unless and until Escrow Agent is prepared to immediately invest such funds, upon collection, in interest-bearing investments as aforesaid. If this Escrow is not in condition to close on or before the time established therefor in Section 404 of this Agreement, any party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, demand from the Escrow Agent the return of its money, papers or documents deposited with the Escrow Agent. No demand for return shall be recognized until ten (10) days after the Escrow Agent shall have mailed copies of such demand to the other party or parties at the address of its or their principal place or places of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party within the ten (10) day period, in which event the Escrow Agent is authorized to hold all money, papers and documents with respect to the Site until instructed by a mutual agreement of the parties or by a court of competent jurisdiction. If no such demands are made, the Escrow shall be closed as soon as possible. The Escrow Agent shall not be obligated to return any such money, papers or documents except upon the written instructions of each of the Agency and the Developer or until the party entitled thereto has been determined by a final decision of a court of competent jurisdiction. Any amendment to these Escrow instructions shall be in writing and signed by both the Agency and the Developer. At 12-09-86 2199k/2299/16 -13- r� r the time of any amendment, the Escrow Agent shall agree to carry out its duties as Escrow Agent under such amendment. All communications from the Escrow Agent to the Agency and the Developer shall be directed to the addresses and in the manner established in Section 801 of this Agreement for notices, demands and communications between the Agency and the Developer. The liability of the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Section 302 and Sections 403 to 408, both inclusive, of this Agreement. D. [§404] Conveyance of Title Subject to any extensions of time mutually agreed upon between the Agency and the Developer, the conveyance of fee title to the Developer pursuant to the Disposition Conveyance shall be completed on or prior to the date specified therefor in the Schedule of Performance (Attachment No. 3). Said Schedule of Performance (Attachment No. 3) is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Agency. E. [§405] Form of Deeds The Agency shall convey the Site to the Developer pursuant to the Agency Deed (Attachment No. 4). F. [§406] Condition of Title -Title Insurance Upon the Acquisition Conveyance, the Agency shall deliver a Grant Deed conveying good and marketable title to the Site to the Developer in fee simple free of all liens and encumbrances and subject only to current taxes which are liens not yet payable and covenants, conditions, restrictions, easements and rights of way approved by Developer. At the close of escrow and as a condition of closing, Agency shall furnish Developer with a CLTA standard owner's title insurance policy issued by Ticor Title Insurance Company (the "Title Company") or a mutually agreeable title company in the amount of Ten Million Five Hundred Thirty Four Three Hundred Seventy Seven ($10,534,377), insuring that fee title to the Property is vested in Developer in such condition as provided in this Section 406. The cost of such insurance shall be paid for by Agency. However, Developer, at its option, may require an ALTA standard owner's coverage title insurance policy and/or such title endorsements as Developer may desire, in which event Developer shall pay the premium differential between a CLTA standard owner's policy and such additional title insurance as Developer may desire. 12-09-86 2199k/2299/16 -14- 0 0 G. [§407] Recordation of Documents The Escrow Agent shall file first the deeds conveying the Site to the Agency then the Agency Deed (Attachment No. 4), for recordation among the land records in the Office of the County Recorder for Orange County. H. [§408] Separate Legal Parcel Agency shall convey the Site at closing as a separate legal parcel or parcels and the Property must be in compliance with all applicable subdivision laws, rules and regulations. The Site must be delivered at close of escrow free of all tenants and occupants. The Developer assumes responsibility for the preparation, approval, and recordation of any subdivision maps as may be required in connection with development of the Site. [§409] Right of Entry Until closing or termination of this Agreement, whichever occurs first, and subject to the rights of Agency under the Agreement with Owner described in Section 201 hereof, Developer and its agents and designees shall have the right to enter upon the Site at any time and from time to time to perform any and all tests and studies Developer deems appropriate, including, but not limited to, soils tests. Developer hereby agrees to indemnify, defend and hold Agency completely harmless against any loss, damage, liability or expense, including reasonable attorneys' fees, arising out of Developer's activities under this section, or in enforcing this indemnity. If Developer does not acquire the Site, Developer agrees to repair any damage and to restore the Site to substantially the same condition it is in as of the date of this Agreement. V. [§500] DEVELOPMENT OF THE SITE A. [§501] Development of the Site by the Developer 1. [§502] Scope of Development The Site shall be developed as provided in the "Scope of Development", which is attached hereto as Attachment No. 5 and is incorporated herein and plus approved by the City and Agency. 2. [§503] Plans and Drawings By the respective times set forth therefor in the Schedule of Performance (Attachment No. 3), the Developer shall prepare and submit to the City plans, including elevations, 12-09-86 2199k/2299/16 -15- 1 describing in detail the on-site developer improvements (as hereafter provided in the Scope of Development [Attachment No. 5]). The plans and elevations shall be submitted in sufficient detail to enable the Agency to evaluate the proposal for conformity to the requirements of this Agreement. In addition to normal City Processing, the Plans are subject to review by the Agency and shall be approved or disapproved as provided in the Schedule of Performance (Attachment No. 3). Failure by the Agency to either approve or disapprove within the times established in the Schedule of Performance (Attachment No. 3) shall be deemed an approval. Any disapproval shall state in writing the reasons for disapproval and shall indicate requested changes. The Developer, upon receipt of a disapproval based upon powers reserved by the Agency hereunder, shall revise such portions and resubmit to the Agency as soon as possible after receipt of the notice of disapproval as provided in the Schedule of Performance (Attachment No. 3) provided such suggested changes are acceptable to Developer. The Site shall be developed as established in this Agreement and such documents except as changes may be mutually agreed upon between the Developer and the Agency. Any such changes shall be within the limitations of the Scope of Development (Attachment No. 5). 3. [§504] Cost of Construction All of the cost of developing and constructing all of the improvements, and all demolition and site preparation costs shall be as provided in the Scope of Development. 4. [§505] Construction Schedule The Developer shall begin and complete all construction and development within the times specified in the Schedule of Performance (Attachment No. 3). 5. [§506] Bodily Iniury and Property Damage Insurance The Developer shall defend, indemnify, assume all responsibility for and hold the Agency, its officers and employees, harmless from, all claims or suits for, and damages to, property and injuries to persons, including accidental death (including attorneys' fees and costs), which may be caused by any of the Developer's activities under this Agreement, whether such activities or performance thereof be by the Developer or anyone directly or indirectly employed or contracted with by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement. The Developer shall take out and maintain during the life of this Agreement (including without limitation all 12-09-86 2199k/2299/16 -16- 0 0 Attachments hereto), a comprehensive liability policy in the amount of Five Million Dollars ($5,000,000) combined single limit policy, including contractual liability, as shall protect the Developer, City and Agency from claims for such damages. The Developer shall furnish a certificate of insurance countersigned by an authorized agent of the insurance carrier on a form of the insurance carrier setting forth the general provisions of the insurance coverage. This countersigned certificate shall name the City and the Agency and their respective offices, agents, and employees as additionally insured parties under the policy. The certificate by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify in writing the City and the Agency of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination. Coverage provided hereunder by the Developer shall be primary insurance and not contributing with any insurance maintained by the Agency or City, and the policy shall contain such an endorsement. The insurance policy or the certificate of insurance shall contain a waiver of subrogation for the benefit of the City and the Agency other than for negligent acts or omissions of the Agency and/or City. The required certificate shall be furnished by the Developer at the time set forth therefor in the Schedule of Performance (Attachment No. 3). The Developer shall also furnish or cause to be furnished to the Agency evidence satisfactory to the Agency that any contractor with whom it has contracted for the performance of work on the Site or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. The obligations set forth in this Section 506 shall remain in effect only until a final Certificate of Completion has been furnished for all of the Developer Improvements as hereafter provided in Section 513 of this Agreement. Notwithstanding the aforementioned in this Section 506, the Developer may satisfy insurance obligations by self insurance (evidenced by certification of same) provided Developer's net worth is in excess of One Hundred Million Dollars ($100,000,000). 6. [§5071 City and Other Governmental A encu pprmita Before commencement of construction or development of any buildings, structures or other works of improvement upon the Site, the Developer shall, at its own expense, secure or cause to be secured any and all land use and 12-09-86 2199k/2299/16 -17- 0 other entitlements which may be required by the'City or any other governmental agency affected by such construction, development or work. Fees and other charges payable in the Scope of Development to the City shall be paid as provided in the Scope of Development. 7. [§508] Rights of Access For the purpose of assuring compliance with this Agreement, representatives of the Agency shall have the right of access to the Site, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in constructing the improvements, so long as they comply with all safety rules. Such representatives of the Agency shall be those who are so identified in writing by the Executive Director of the Agency. The Agency (or its representatives) shall, except in emergency situations, notify the Developer prior to exercising its rights pursuant to this Section 508 to provide the Developer a reasonable opportunity to accompany the Agency representatives. This Section 508 shall not diminish the rights of the City to enforce its enactments. 8. [§509] Local, State and Federal Laws The Developer shall carry out the construction of the improvements in conformity with all applicable laws. 9. [§510] Antidiscrimination During Construction The Developer, for itself and its successors and assigns, agrees that in the construction of the improvements provided for in this Agreement, the Developer will not discriminate against any employee or applicant for employment because of race, color, creed, religion, age, sex, marital status, handicap, national origin or ancestry. B. [§511] Taxes, Assessments, Encumbrances and Liens After the Disposition Conveyance, the Developer shall pay all taxes levied upon the Site prior to delinquency and shall hold harmless the Agency and City from and against any liability or claim with respect to real estate taxes or assessment in connection with the Site or improvements thereon accruing after the Disposition Conveyance except as otherwise provided herein. Prior to issuance of a Certificate of Completion pursuant to Section 518, the Developer shall not place or allow to be placed on the Site or any part thereof any mortgage, trust deed, encumbrance or lien other than by a recognized financial institution. Nothing herein contained shall be deemed to prohibit the Developer from contesting the 12-09-86 2199k/2299/16 -18- validity or amounts lien, nor to limit respect thereto. C. [§512] LI of any property tax, or any encumbrance or the remedies available to the Developer in Ass tion Against Trans ., Prior to the issuance by the Agency of a Certificate of Completion or partial Certificate of Completion (pursuant to Section 518 of this Agreement) as to any building or structure, the Developer shall not, except as permitted by this Agreement, without prior approval of the Agency, make any total or partial sale, transfer, of the whole or any part of the Site except to a partnership in which Developer has at least a 50% interest in profits and losses; provided Developer shall remain fully responsible hereunder. This prohibition shall not be deemed to prevent the granting of leases, or temporary or permanent easements or permits to facilitate the development of the Site. D. [§513] Holder Not Obligated to Construct Improvements The holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion; nor shall any covenant or any other provision in the deed for the Site be construed so as to obligate such holder. Nothing in this Agreement shall be deemed to construe, permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. E. [§514] Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure With respect to any mortgage or deed of trust granted by Developer as provided herein, whenever the Agency shall deliver any notice or demand to Developer with respect to any breach or default by the Developer in completion of construction of the improvements, the Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement and of which the Agency has received notice in writing a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, within thirty (30) days after the receipt of the notice, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the 12-09-86 2199k/2299/16 -19- 0 0 construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement satisfactory to the Agency. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates, and submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of Section 518 of this Agreement, to a Certificate of Completion (as therein defined) F. [§515] Failure of Holder to Complete Improvements In any case where, thirty (30) days after default by the Developer in completion of construction of improvements under this Agreement, the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof has not exercised the option to construct, or if it has exercised the option and has not proceeded diligently with construction, the Agency may purchase the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. I£ the ownership of the Site or any part thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: 1. The unpaid mortgage or deed of trust debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); 2. All expenses with respect to foreclosure; 3. The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Property or part thereof; 4. The costs of any improvements made by such holder; and 5. An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or 12-09-86 2199k/2299/16 -20- 0 0 deed of trust debt and such debt had continued in existence to the date of payment by the Agency. G. [§516] Right of the Agency to Cure Mortgage or Deed of Trust Default In the event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the construction of the improvements on the Site or any part thereof and the holder of any mortgage or deed of trust has not exercised its option to construct, the Agency may cure the default. In such event, the Agency shall be entitled to reimbursement from the Developer of all proper costs and expenses incurred by the Agency in curing such default. The Agency shall also be entitled to a lien upon the Site to the extent of such costs and disbursements. Any such lien shall be subject to the construction financing mortgages or deeds of trust. H. [§517] Right of the Agency to Satisfy Other Liens After the conveyance of title and prior to the issuance of a Certificate of Completion, and after the Developer has had written notice and has failed after a reasonable time, but in any event not less than fifteen (15) days, to challenge, cure, adequately bond against, or satisfy any liens or encumbrances on the Site which are not otherwise permitted under this Agreement, the Agency shall have the right but no obligation to satisfy any such liens or encumbrances. I. [§518] Certificate of Completion Promptly after completion of all construction and development required by this Agreement to be completed by the Developer upon the Site, the Agency shall furnish the Developer with a Certificate of Completion upon written request therefor by the Developer. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion shall be a conclusive determination of satisfactory completion of the construction required by this Agreement upon the Site and the Certificate of Completion shall so state. After recordation of such Certificate of Completion, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest therein shall not (because of such ownership, purchase, lease or acquisition), incur any obligation or liability under this Agreement except as provided in the Agency Deed (Attachment No. 4). A Certificate of Completion of construction for the entire improvement and development of the Site shall be in such form as to permit it to be recorded in the Recorder's Office of Orange County in a form attached hereto as Attachment No. 9. 12-09-86 2199k/2299/16 -21- Partial certificates evidencing completion of development upon the Site may be requested and thereupon issuance shall be in accordance with the other provisions of this Section 518. If the Agency refuses or fails to furnish a Certificate of Completion for the Site, or part thereof, after written request from the Developer, the Agency shall, within thirty (30) days of written request therefor, provide the Developer with a written statement of the reasons the Agency refused or failed to furnish a Certificate of Completion. The statement shall also contain Agency's opinion of the actions the Developer must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate availability of specific items of materials for landscaping, the Agency will issue its Certificate of Completion upon the posting of a bond by the Developer with.the Agency in an amount representing a fair value of the work not yet completed. If the Agency shall have filed to provide such written statement within said thirty (30) day period, the Developer shall be deemed entitled to the Certificate of Completion. Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the improvements, or any part thereof. Such Certificate of Completion is not a notice of completion as referred to in the California Civil Code, Section 3093. VI. [§600] USE OF THE SITE A. [§601] Uses The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Site or any part thereof, that during construction and thereafter, the Developer and such successors and such assignees, shall not devote the Site to any uses prohibited by the Redevelopment Plan and this Agreement. The foregoing covenant shall run with the land for twenty (20) years commencing with the date of execution of this Agreement by the Agency. B. [§602] Non -Discrimination The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, age, handicap, national origin or ancestry in the sale, lease, 12-09-86 2199k/2299/16 -22- 0 0 sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site. The foregoing covenants shall run with the land. The Developer shall refrain from restricting the rental, sale or lease of the Site on the basis of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 1. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, age, handicap, national origin or ancestry in the sale, lease, Sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." 2. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, age, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination 12-09-86 2199k/2299/16 -23- 0 0 or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased." 3. In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, age, handicap, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises." C. [§603] Effect and Duration of Covenant The covenants established in this Agreement and the deeds shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency, its successors and assigns, the City and any successor in interest to the Site or any part thereof. The covenants, contained in this Agreement shall remain in effect until the termination date of the Redevelopment Plan except as otherwise provided herein. The covenants against racial discrimination shall remain in perpetuity. D. [§604) Rights of Access The Agency, for itself and for the City and other public agencies, at its sole risk and expense, reserves and the Developer grants the right to enter the Site or any part thereof at all reasonable times for the purpose of construction, reconstruction, maintenance, repair or service of any public improvements or public facilities located on the Site and recorded as a matter of record as of the date of this Agreement; provided that, except in emergency situations, such rights shall not be exercised during the Christmas season or without reasonable prior notice. Any such entry shall be made only after reasonable notice to Developer, and Agency shall defend, indemnify and hold Developer harmless from any costs, claims, damages or liabilities pertaining to any entry. Nothing herein shall be construed as a grant of an easement or other property right not of record. 12-09-86 2199k/2299/16 -24- 0 0 VII. [§700] DEFAULTS AND REMEDIES A. (§701] Defaults -- General Subject to the extensions of time set forth in Section 803, failure by either party to perform any term or provision of this Agreement within the time periods provided herein constitutes a default under this Agreement. A party claiming a default (claimant) shall give written notice of default to the other parties, specifying the default complained of. Except as otherwise expressly provided in Sections 711 and 712 of this Agreement, the claimant shall not institute proceedings against any other party and the other party shall not be in default if such other party within thirty (30) days from receipt of such notice immediately, with due diligence, commences to cure, correct or remedy such failure or delay and shall complete such cure, correction or remedy with diligence. B. [§702] Legal Actions 1. [§703] Institution of Legal Actions In addition to any other rights or remedies and subject to the restrictions in Section 701, any party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Orange, State of California, in an appropriate municipal court in that county, or in the Federal District Court in the Central District of California. 2. [§704] Applicable Law The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 3. [§705] Acceptance of Service of Process In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service, whether made within or without the State of California, or in such other manner as may be provided by law. 12-09-86 2199k/2299/16 -25- 0 C. [§706] Rights and Remedies Are Cumulative Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by any party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. D. [§707] Inaction Not a Waiver of Default Any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. E. [§708] Damages If any party defaults with regard to any of the provisions of this Agreement, the non -defaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured as provided in Section 701, the defaulting party shall be liable to the other party for any damages caused by such default, and the non -defaulting party may thereafter (but not before) commence an action for damages against the defaulting party with respect to such default. F. [§709] Specific Performance If any party defaults under any of the provisions of this Agreement, the non -defaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured as provided in Section 701, the non -defaulting party at its option may thereafter (but not before) commence an action for specific performance of terms of this Agreement pertaining to such default. G. [§710] Remedies and Rights Prior to the Acquisition Transfer 1. [§711] Termination by the Agency In the event that prior to the Acquisition Conveyance: (a) The Developer (or any successor in interest) assigns or attempts to assign by executing a written agreement of assignment the Agreement or any rights therein or in the Site in violation of this Agreement; or 12-09-86 2199k/2299/16 -26- 0 (b) The Developer does not submit construction plans, drawings and related documents as required by this Agreement, in the manner and by the dates respectively provided in this Agreement therefor any such default or failure shall not be cured within forty-five (45) days after the date of written demand therefor by the Agency; or (c) Any of the Conditions Precedent (as set forth in Section 402 of this Agreement) are not satisfied or waived by the time established therefor in the Schedule of Performance (Attachment No. 3); then this Agreement and any rights and obligations thereunder of the Developer (or any authorized assignee or transferee) or the Agency, shall, at the option of the Agency, be terminated by the Agency. H. [§712] Attorneys Fees If either party hereto files an action or brings any proceeding against the other arising out of this Agreement, or is made a party to any action of proceeding brought by the Escrow Agent, then the prevailing party shall be entitled to recover as an element of its costs of suit and not as damages, reasonable attorneys' fees to be fixed by the court. The "prevailing party" shall be the party who is entitled to recover its costs of suit whether or not suit proceeds to final judgment. VIII. [§800] GENERAL PROVISIONS A. [§801] Notices, Demands and Communications Between the Parties Written notices, demands and communications between the Agency and the Developer shall be sufficiently given if delivered by hand or dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by courier, to the principal offices of the Agency and the Developer. Such written notices, demands and communications may be sent in the same manner to such other addresses as such parties may from time to time designate by mail as provided in this Section 801. Any written notice, demand or communication shall be deemed received immediately if delivered by courier. 12-09-86 2199k/2299/16 -27- 9 0 B. [§802] Conflicts of Interest No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. C. [§803] Enforced Delay; Extension of Times of Performance In addition to specific provisions of this Agreement, performance by any party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, other than for the payment of money, where delays or defaults are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; epidemics; quarantine restrictions; freight embargoes; litigation; unusually severe weather; acts or omissions of another party; acts or failures to act of the City of San Juan Capistrano or any other public or governmental agency or entity (other than the acts or failures to act of the City which shall not excuse performance by the Agency); or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Agency and the Developer. The Developer shall not be entitled pursuant to this Section 803 to an extension of time to perform because of past, present, or future difficulty in obtaining suitable temporary or permanent financing for the acquisition of the Site. D. [§804] Non -liability of Officials and Employees of the Agency No member, official or employee of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency (or the City) or for any amount which may become due to the Developer or their successors, or on any obligations under the terms of this Agreement. 12-09-86 2199k/2299/16 -28- 0 0 The Developer expressly agrees and acknowledges that the City and the Agency are not obligated, by virtue of this Agreement, to approve any ordinances or take or refrain from taking any legislative acts, including, without limitation the approval of a redevelopment plan amendment and the creation of authority in the Agency to impose sales taxes with respect to the Site (or any other area), except as provided in Section 303 (3). [§805] Brokers Neither the Agency nor the Developer shall be liable for any real estate commissions, brokerage fees or finders fee which may arise here from. The Agency and the Developer each represents that it has not engaged any broker, agent or finder in connection with this transaction, and each agrees to defend, indemnify and hold harmless the other parties from and against any claim with respect to such commissions based upon the acts of such party. IX. [§900] ENTIRE AGREEMENT; WAIVERS, CONSENT This Agreement is executed in five (5) duplicate originals, each of which is deemed to be an original. This Agreement includes pages 1 through 28 and Attachments 1 through 9, which constitutes the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of the Agency and the Developer and all amendments hereto must be in writing by the appropriate authorities of the Agency and the Developer. Neither the Agency nor the Developer makes any representations or warranties except as expressly set forth in this Agreement. X. [§1000] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency on or before thirty (30) days after signing and delivery of this Agreement by Developer or either party may decline to enter into this Agreement, except to the 12-09-86 2199k/2299/16 -29- extent that the Developer shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement. The date of this Agreement shall be the date when it shall have been signed by the Agency. The individuals signing below on behalf of the Developer represent and warrant that they have the authority to bind such entities. IN WITNESS WHEREOF, the Agency and the Developer have signed this Agreement on the respective dates set forth below. December 16 19&� SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY Lo C�ary)L. Haus or er, C air an ATTEST: Mary Ann Ha ve , Agency gecretary APP VED T �. Agency Counsel THE PRICE COMPANY, a California corporation i W. By: 111.1 \S Its: "DEVELOPER" 12-09-86 2199k/2299/16 -30- 0 0 STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) CITY OF SAN JUAN CAPISTRANO On thi s 16th day of December in the year 1986 before me, the undersigned, a Notary Public in and for said State, personally appeared Gary L. Hausdorfer and Ann Hanover , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persom who executed this instrument as the Chairman and Secretary (insert title of the officer) San Juan Ca (name of istrano Community Redevelopment Agency lblic corporation, agency or political subdivis and acknowledged to me that the San Juan Capistrano Community c corporation, agency or political subdivis executed it. .y M SEALHNSONCALIFORNIAaaly NGV 11, 1989 12-09-86 2199k/2299/16 'Ile w4' 5ignatu_rk of NotAlry Public Cheryl A. Johnson Name typed or printed 6 STATE OF CALIFORNIA ss. COUNTY OF S a r I� r _4o ) On December 12, )98/0 undersigned, a Notary Public in and for appeared kober-F <5 {PrIce, personally known to me or proved to me satisfactory evidence to be the person 46 before me, the said State, personally on the basis of who executed the within instrument as the President, and C-7, les (J . P;a+e ry,a n personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the ✓}53 5-t C? rr+ Secretary of the Corporation that executed the within instrument and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors. WITNESS my hand and official seal. OFFICIAL SEAL (SEAL) CDLLEEN CARPENTER DWYER NOTARY PUBLIC-CALIfORNfA SAN DIEGO COUN I v �ttpx My comm EXQ"Pr A"" t, i pqb 12-09-86 2199k/2299/16 -- - --- ATTACHIOT NO. 1 4. :EL 2 - CL F- L -rA, -sire P,'kzced BLVD VICTORIA ATTACHMENT NO. Page 1 of 1 DESCRIPTION PARCEL 1: ATTACHMENT NO. 2 • TICOR TITLE t SURANCE COMPANY OF CALIFORNIA LEGAL DESCRIPTION 022 THAT PORTION OF THE RANCHO ROCA DE LA PLAYA, CITY OF SAN JUAN CAPISTRANO, COUNTY OF' ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAF' RECORDED JUNE 29, 1887 IN BOOK, 4 PAGES 118 AND 119 OF PATENTS, RECORDS OF LOS ANGELES COUNTY CALIFORNIA DESCRIBED AS FOLLOWS BEGINNING AT THE SOUTHEAST CORNER OF THE TRACT ALLOTTED TO ROSA A. DE PRYOR Ii THE PARTITION OF THE PRYOR HOMESTEAD IN CASE NO, 1210 OF THE SUPERIOR COURT OF ORANGE COUNTY, CALIFORNIA; THENCE NORTH 33 DEGREES 40 MINUTES EAST 21 FEET TO FENCE CORNER; THENCE ALONG OLD FENCE NORTH 27 DEGREES 10 MINUTES WEST, 518 FEET TO A FENCE CORNER; THENCE NORTH 46-1/2 DEGREES WEST, 880 FEET TO THE RIGHT OF WAY OF THE SOUTHERN CALIFORNIA RAILWAY COMPANY; THENCE SOUTH 26 DEGREES WEST ALONG SAID RIGHT OF WAY 717 FEET TO LINE OF LAND ALLOTTED IN CASE TO CHRISTINE S. PRYOR, AND THENCE: SOUTH 69-1/2 DEGREES EAST, 1122 FEET TO THE POINT OF BEGINNING. EXCEPT THAT PORTION THEREOF LYING EASTERLY OF THE CENTER LINE OF THE STATE HIGHWAY AS DESCRIBER IN THE DEED TO THE STATE OF CALIFORNIA, RECORDED APRIL 5, 1930 IN BOOK 375 PAGE 99, OFFICIAL RECORDS. ALSO EXCEPT THEREFROM 1/16TH OF ALL. OIL, GAS, MINERALS AND HYDROCARBON SUBSTANCES IN AND UNDER SAID LAND AS RESERVED IN THE DEED FROM NEIL RAEMUSSEN, A MARRIED MAN, RECORDED JANUARY 25, 1951 IN BOOK 2134 PAGE. 528, OFFICIAL. RECORDS. ALSO EXCEPT THEREFROM THE REMAINING INTEREST OF THE GRANTOR IN AND TO ALL OIL, OIL RIGI-ITS, MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL. GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY BE WITHIN OR UNDER THE PARCEL. OF LAND HE:RF_.INABOVL DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING. MINING, EXPLORING AND OPERATING THEREFOR AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED, OIL, OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE: OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 100 FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED OR OTHERWISE IN SUCH MANNER AS TO ENDANGER THE SAFETY OF ANY HIGHWAY THAT MAY BE CONSTRUCTED ON SAID LANDS. PARCEL. 2: BEGINNING AT THE INTERSECTION OF THE EASTERLY LINE OF THE PRYOR HOMESTEAD AS DESCRIBED IN DECREE RECORDED IN BOOK 7 PAGE 31 OF HOMESTEADS, RECORDS OF LOS ANGELES COUNTY, CALIFORNIA, WITH THE CENTER LINE OF THE CALIFORNIA STATE HIGHWAY AT ENGINEER'S STATION 416 + 49.24 THEREOF; THENCE FOLLOWING THE EASTERLY LINE OF SAID PRYOR HOMESTEAD, SOUTH 27 DEGREES 53 MINUTES 30 SECONDS WEST 265,41 FEET AND SOUTH 27 DEGREES 08 MINUTES 40 SECONDS EAST 193.61 FEET TO THE CENTER LINE OF SAID HIGHWAY AT ENGINEER'S STATION 412 + 40,.84; AND THENCE NORTHERLY ALONG THE: CENTER LINE OF SAID HIGHWAY 408.40 FEET TO THE ATTACHMENT NO. 2 Age 1 of 2 06114 0805292 • R • • TICOR TITLE INSURANCE COMPANY OF CALIFORNIA POINT OF BEGINNING. PARCEL. 3: THAT PORTION OF THE PRYOR HOMESTEAD TRACT. IN THE RANCHO OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON MAF' ATTACHED FINAL DECREE MADE BY THE SUPERIOR COURT OF SAID COUNTY, WHICH IS RECORDED IN BOOK 27 PAGE 89 OF DEEDS IN THE IN COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: 020 DOCA LA PLAYA, COUt TO CASE NO. 1210, I A CERTIFIED COPY OF THE OFFICE OF THE COMMENCING AT THE NORTHEASTERLY CORNER OF THE 49.8 ACRES ALLOTTED TO ALBERT PRYOR IN SAID CASE NO. 100 OF THE SUPERIOR COURT OF SAID COUNTY; THENCE WESTERLY ALONG. THE: NORTHERLY LINE OF SAID 49.8 ACRES ALLOTTED TO ALBERT PV40 NORTH 68 DEGREES 35 MINUTES 09 SECONDS WEST, 949.60 FEET TO A POINT IN THE EASTERLY RIGHT OF WAY LINE OF THE. SOUTHERN CALIFORNIA RAILWAY, AS SHOWN ON M OF SAID PRYOR HOMESTEAD TRACT, SAID POINT BEING ALSO THE SOUTHWESTERLY CORNE OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN DEED RECORDED IN BOOK 5834 PAGE 580 OF OFFICIAL_ RECORDS IN SAID OFFICE; THENCE NORTHERLY ALONG SAID EASTERLY RIGHT OF WAY LINE NORTH 16 DEGREES 47 MINUTES 31 SECONDS EAST; 580.08 FEET T THE NORTHERLY LINE OF THE 49.8 ACRES ALLOTTED TO CHRISTINA S. PRYOR IN SAID SUPERIOR COURT CASE. NO. 1210; THENCE LEAVING SAID EASTERLY RIGHT OF WAY LINE SOUTH 68 DEGREES 35 MINUTES 09 SECONDS EAST, ALONG SAID LAST MENTIONED NORTHERLY LINE, A DISTANCE: OF 962.29 FEET TO A POINT IN THE CENTER LINE OF THAT CERTAIN PARCEL OF LAND CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED IN BOOK 374 PAGE 101, OFFICIAL RECORDS IN SAID OFFICE; THENCE SOUTHERLY ALONG SAID CENTER LINE SOUTH 05 DEGREES 51 MINUTES 24 SECONDS WEST 42.18 FEET TO THE. BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 1500.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE, THROUGH AN ANGLE 15 DEGREES 27 MINUTES 45 SECONDS, AN ARC DISTANCE OF 404.81 FEET; THENCE LEAVING SAID CENTER LINE, ALONG THE NORTHEASTERLY PROLONGATION OF THE SOUTHEASTERLY LINE OF THAT CERTAIN PARCEL. OF LAND CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED IN BOOK 375 PAGE 99, OFFICIAL RECORDS IN SAID OFFICE, SOUTH 34 DEGREES 34 MINUTES 51 SECONDS WEST, 141.45 FEET TO THE POIN OF BEGINNING. EXCEPTING THEREFROM THAT CERTAIN STRIP OF LAND i.00 FOOT WIDE, AS DESCRIBED DEED RECORDED IN BOOK 7503 RACE 60, OFFICIAL RECORDS, IN SAID OFFICE. 80% RATE ATTACHMENT NO. 2 Page 2 of 2 ATTACHMENT NO. 3 SCHEDULE OF PERFORMANCE I. GENERAL PROVISIONS 1. Execution of Agreement by the Agency. The Agency shall hold a public hearing on this agreement, shall authorize execution and shall execute this agreement, and shall deliver five (5) executed copies of this agreement to the Developer. 2. Submission - Basic Concept and Schematic Drawings. The Developer shall submit the basic concept and schematic drawings (complete submittal package) for review and comment to the Environmental Review Board, Traffic and Trans- portation Commission, architectural Board of Review and Planning Commission. 3. Approval - Basic Concept and Schematic Drawings. The Agency shall approve or disapprove the basic concept and schematic drawings. No later than December 16, 1986. Concurrent with execution of the agreement. Within 30 days of Agency's execution of this Agreement. 4. Completion of Soils or Prior to or concurrent with the Geotechnical Test. The Agency's execution of this Developer shall conduct at its Agreement. expense all work necessary to investigate and determine the soil condition of the site. 5. Submission - Preliminary Title Concurrent with execution of Reports. The Agency shall this Agreement by the Agency. submit to the Developer copies of thepreliminary title reports for the site. 12-09-86 Attachment No. 3 2199k/2299/16 Page 1 of 3 0 6. Comments - Preliminary Title Reports. The Developer shall submit to the Agency/City its comments on the preliminary title reports for the site. II. CONVEYANCE AND CONSTRUCTION 1. Submission - Preliminary Construction Drawings and Grading and Landscaping Plans. The Developer shall prepare and submit to the Agency and City preliminary construction drawings and grading and landscaping plans for the combined site. 2. Approval - Preliminary Construction Drawings and Grading and Landscape Plans. The Agency and City shall approve or disapprove the preliminary construction drawings and grading and landscaping plans. 3. Submission - 100 Percent Complete Final Construction Drawings and Grading and Landscaping Plans. The Developer shall prepare and submit to the Agency and City 100 percent complete construction drawings and a final landscaping and finish grading plan. 4. Approval - 100 Percent Complete Final Construction Drawings and Grading and Landscaping Plans. The Agency and City shall approve or disapprove the 100 percent complete final construction drawings and the final landscaping and finish grading plan. 0 Within 30 days after receipt by the Developer. Within 60 Days after the Agency approves basic concept and schematic drawings. Within 30 days after receipt by the Agency. Within 90 days after the Agency approves the preliminary construction drawings. Within 30 days after receipt by the Agency. S. Conditions Precedent. The Prior to the date for Developer meets all conditions conveyance of the site. of approval. 12-09-86 Attachment No. 3 2199k/2299/16 Page 2 of 3 0 6. Opening of Escrow. The Agency shall open the escrow for the parcels. 7. Conveyance of Title. The Agency shall convey title and/or possession of the parcels to the Developer. 8. Commencement of Construction The Developer shall commence construction of improvements on the Site. 9. Grading, Excavation and Laying of Foundations. The Developer shall complete the grading, excavation and laying of foundations. 10. Completion of Construction and Development. The Developer shall complete the construction of the Price Club Building. 0 At least 60 days prior to the date for conveyance to the Developer by the Agency. No later than June 30, 1987. Within 90 days after conveyance of title and possession of Site to the Developer and issuance of building permits. Within 180 days of the commencement of construction. Within twelve (12) months after issuance of building permits. Development will occur in three phases in accordance with the Scope of Development. Phase I ("Price Club") and the planning for the Site shall proceed in accordance with the above Schedule. Construction of Phase II shall be completed on or before the first anniversary date of the completion of construction and the issuance of a Certificate of Occupancy therefore. Construction of Phase III shall be completed on or before the second anniversary date of the completion of construction of the Price Club and the issuance of Certificates of Occupancy therefor. 12-09-86 Attachment No. 3 2199k/2299/16 Page 3 of 3 ATTACHMENT NO. 4 AGENCY DEED Recording Requested By and ) When Recorded Return To and ) Mail Tax Statements To: ) Space above for recorder's use on GRANT DEED For a valuable consideration receipt of which is hereby acknowledged, The SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic, of the State of California, herein called "Grantor" acting to carry out the Redevelopment Plan, herein called "Redevelopment Plan" for the Redevelopment Project for the Central Redevelopment Project Area, herein called "Project", under the Community Redevelopment Law of California, hereby grants to THE PRICE COMPANY, a California corporation, herein called "Grantee", the real property hereinafter referred to as "Property", described in Exhibit A attached hereto and incorporated herein, subject to the existing easements, restrictions and covenants of record. 1. Said Property is conveyed in accordance with and subject to the Redevelopment Plan which was approved and adopted by the City Council of the City of San Juan Capistrano by Ordinance No. 488, as amended by Ordinance Nos. 509, 547 and 582, and a Disposition and Development Agreement entered into between Grantor and Grantee dated (the "DDA"), a copy of which is on file with the Grantor at its offices as a public record and which is incorporated herein by reference. 12-09-86 Attachment No. 4 2199k/2299/16 Page 1 of 4 2. The Grantee shall not use the Property for uses prohibited in the applicable provisions of the Redevelopment Plan for the Project (or any amendments thereof approved pursuant to paragraph 9 of this Grant Deed), and this Grant Deed, whichever document is more restrictive. 3. The Property is conveyed to grantee at a purchase price, herein called "Purchase Price", determined in accordance with the uses permitted. Therefore, Grantee hereby covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Property that the Grantee, such successors and such assigns, shall develop, maintain, and use the Property only as follows: (a) Grantee shall develop the Property as required by the DDA, and with parking conforming to the requirements of the San Juan Capistrano City Code. (b) Grantee shall maintain the improvements on the Property and shall keep the Property free from any accumulation of debris or waste materials. Grantee shall also maintain the required landscaping in a healthy condition. (c) After the issuance of a Certificate of Completion as provided in the DDA, the Developer may make changes, additions and alterations to improvements on the Property provided Developer is in compliance with all applicable laws, ordinances and regulations. (d) Grantee shall only sell, transfer or convey the Property as a whole and is not permitted to subdivide the Property for the duration of the Redevelopment Plan without first recording a reciprocal easement agreement for parking and access purposes between or among the subdivided parcels, if required by the Grantor and the City. 4. Prior to recordation of a Certificate of Completion issued by the Grantor for the improvements to be constructed on the Property: (a) Except for leases, the Grantee shall not make any sale, transfer, conveyance, or assignment of the Property or any part thereof or any interest therein, except to a partnership in which the Developer has at least a 50% interest in profits and losses without the prior written consent of the Grantor except as permitted by paragraph 4(b) of this Grant Deed. This prohibition shall not be deemed to prevent the granting of easements or permits to facilitate the development of the Property. 12-09-86 Attachment No. 4 2199k/2299/16 Page 2 of 4 (b) The Grantee shall not place or suffer to be placed on the Property any lien or encumbrance other than mortgages, deeds of trust, or any other form of conveyance required for financing of the acquisition of the Property, the construction of improvements on the Property, and any other expenditures necessary and appropriate to develop the Property. 5. The Grantee agrees for itself and any successor in interest not to discriminate upon the basis of race, color, creed or national origin in the sale, lease, or rental or in the use or occupancy of the Property hereby conveyed or any part thereof. Grantee covenants by and for itself, its successors, and assigns, and all persons claiming under or through them that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall the Grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub -tenants, sublessees, or vendees in the Property. The foregoing covenants shall run with the land. 6. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest permitted by paragraph 4(b) of this Grant Deed; provided, however, that any subsequent owner of the Property shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such owner's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. 7. All covenants contained in this Grant Deed shall be covenants running with the land. Grantee's obligation to develop the improvements on the Property provided in paragraph 3(a) of this Grant Deed shall terminate and shall become null and void upon recordation of a Certificate of Completion issued by Grantor for the Property. Grantee's obligation to use or cause the use of the improvements constructed as provided in paragraph 3(a) shall continue in effect until expiration of the Redevelopment Plan. Every covenant contained in this Grant Deed against discrimination contained in paragraph 5 of this Grant Deed shall remain in perpetuity. 8. All covenants without regard to technical classification or designation shall be binding for the benefit of the Grantor, and such covenants shall run in favor of the 12-09-86 Attachment No. 4 2199k/2299/16 Page 3 of 4 0 0 Grantor for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or remains an owner of any land or interest therein to which such covenants relate. The Grantor, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. 9. Both before and after recordation of a Certificate of Completion, both Grantor, its successors and assigns, and Grantee and the successors and assigns of Grantee in and to all or any part of the fee title to the Property shall have the right to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants or restrictions contained in this Grant Deed without the consent of any tenant, lessee, easement holder, licenses, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. The covenants contained in this Grant Deed, without regard to technical classification shall not benefit or be enforceable by any person or entity other than the Grantor or its successors and assigns. Any amendments to the Redevelopment Plan which change the uses or development permitted on the Property, or otherwise change any of the restrictions or controls that apply to the Property, shall require the written consent of Grantee or the successors and assigns of Grantee in and to all or any part of the fee title to the Property, but any such amendment shall not require the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. 10. The covenants contained in this Grant Deed shall be construed as covenants running with the land and not as conditions which might result in forfeiture of title. IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on their behalf by their respective officers hereunto duly authorized, this day of , 1986. SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY By: 12-09-86 Attachment No. 4 2199k/2299/16 Page 4 of 4 Attachment No. 5 Scope of Development I. GENERAL n u This document presents general requirements for the development of the Site and off-site improvements. Detailed requirements will be addressed in the development review process and approval of specific construction plans and documents. The site shall be designed and developed as an integrated complex in which the buildings will achieve architectural excellence, both individually as well as in their integration into the complex as a whole. The Developer and the Agency will cooperate and direct their consultants, architects and engineers to cooperate so as to ensure the continuity and coordination necessary for the proper and timely completion of the project. A. Site Description The Site is an area bounded by a mobile home park on the north, the creek and A.T. & S.F.R.R. on the west, existing commercial on the south and Doheny Park Road on the east. The Site area is approximately 23.032 acres (1,003,274 sq. ft.). B. Architecture and Site Desi n The architecture shall include elements of a village marine architectural theme, which is evident in the surrounding area known as Capistrano Beach. It is important this style be evident in all elements of design, from all elevations of the structures down to smaller elements such as street furniture and trash enclosures. Particular attention shall be paid to massing, color and materials. Materials shall include those approved by City in its discretion. The Developer shall apply for approvals from the City and the Agency for the project's site design and elevations as required by City codes and this Disposition and Development Agreement. 12-09-86 Attachment No. 5 2199k/2299/16 Page 1 of 10 C. Uses The Site shall include a Price Club of not less than 112,000 square feet nor more than 150,000 square feet with a total gross leaseable area of all buildings including the Price Club building of not less than 166,000 square feet. The following uses and sales items are prohibited unless part of the Price Club operation: Movie theaters, lumber yards, hardware or home improvement (as a principal use of a single business), bowling alley, grocery store (as a principal use of a single business), thrift stores, auto dealers or repair, professional offices, banks, savings and loan, credit unions, hotels/motels, antique stores, live entertainment or dancing nightclubs or cabarets, dwellings, townhouses or apartments in connection with a commercial use, religious related uses, including churches, temples, synagogues, convents, monasteries, religious retreats and other places of religious worship, pool or billiard center, computer or data processing center, linen and diaper supply service, ambulance services, trading stamp redemption centers, secondhand stores, private clubs and lodges, car wash, child day-care centers, convalescent and nursing homes, homes for the aged, childrens' homes and sanitariums, manufacturing assembling, testing, repairing or research on components, devices, equipment and systems of an electrical, electronic or electromechanical nature, adult bookstores, pornographic theatres or bookstores or adult model studio, massage parlors, campgrounds and commercial recreational vehicle park, collection or recycling of paper, glass and other materials, animal shelter, kennels, vehicle storage. Notwithstanding anything herein to the contrary, not more than eleven percent (11%) of the gross leaseable area of the Site excluding the gross leaseable area for the Price Club, can be utilized for general office and/or financial institutions. The Price Club shall open as a full service store with a full range of merchandise as offered by the Price Club in its stores in the Southern California area; provided that this obligation shall not be construed as a continuing obligation to operate a Price Club in any particular manner or for any length of time. 12-09-86 Attachment No. 5 2199k/2299/16 Page 2 of 10 0 i II. ON-SITE DEVELOPMENT AND IMPROVEMENTS The following requirements shall be the sole financial responsiblity of the Developer, unless specifically noted otherwise. All improvements shall be completed in accordance with the Schedule of Performance. A. Project - The Developer shall construct the buildings as referred to in Section 1.0 above in three (3) phases as provided in the Schedule of Performance in accordance with the Phasing Plan attached hereto as Exhibit 1. B. Site Preparation - The Developer shall be responsible for preparing the Site for construction, including without limitation demolition and relocation of utilities as follows: 1. Demolition - The Developer shall be responsible for and shall pay for: a. Insofar as necessary to provide the Developer improvements , the reduction and removal of any structures and improvements from the Site, including subsurface structures, and the removal of all bricks, lumber, pipes, equipment and other material and all debris and rubbish resulting from such demolition. b. Insofar as necessary to provide the Developer improvements, the removal of all paving (including catch basins, curbs, gutters, drives, sewers, water lines and sidewalks) within or on the Site. C. Removal and abandonment by public utility companies of such utility lines, installations, facilities and related equipment within the Site required to effectuate the purposes of this Agreement. The Agency is not in any way responsible for the filling of any excavations, nor for grading or compaction. Soil conditions shall be solely the responsibility of the Developer. 12-09-86 Attachment No. 5 2199k/2299/16 Page 3 of 10 2. Soil Conditions - Subject to Developer approval of soils as set forth in Section 402 of this Agreement, the Developer assumes the responsibility to deal with all portions of the Site in an "as is" condition. It shall be solely the responsibility of the Developer, at its expense, to investigate and determine the soil and subsurface conditions of the Site and suitability of such Site for the development to be constructed or caused to be constructed by Developer. If the soil conditions of the Site are not in all respects entirely suitable for the use or uses to which the Site will be put, then it is the sole responsibility and obligation of the Developer to take such action as may be necessary to place the Site and the soil conditions of the Site in all respects in a condition entirely suitable for the development of the Site 3. Lot Line Adjustment - The Developer and Agency shall process a lot line adjustment or a reversion to acreage for the Site as may be required so that one parcel is conveyed to the Developer or if a parcel map is necessary, the Developer shall prepare or cause to be prepared and recorded a parcel map which illustrates the Site, easements encumbering the site, dedications, and realigned streets, if any. The Developer shall pay for all costs incurred as a result of the preparation and recordation of such map and all costs for the lot line adjustment or reversion to acreage except as to Development Fees associated therewith which are allocated pursuant to Paragraph 13(c) hereof. 4. Easements - The Developer shall grant and permit all necessary and appropriate utility easements and rights for the development of the Site, including but not limited to sanitary sewers, storm drains, water, electrical power, telephone, natural gas, CATV, etc. 5. Parking - The site shall provide adequate parking facilities, including access, circulation and amount of parking according to the San Juan Capistrano Municipal Code and San Juan Capistrano Parking Standards. The number and location of standard and compact spaces may be modified as approved by the City. The design and configuration of the parking facilities shall conform to standards established by the City. 12-09-86 Attachment No. 5 2199k/2299/16 Page 4 of 10 0 0 All parking and pedestrian areas shall incorporate adequate lighting, both for security and for the safety and security needs of the pedestrian. Exterior lighting standards shall be consistent with the overall design theme of the project and shall be approved by the Agency and the City. Vehicular Access - The site shall provide adequate vehicular access. The placement of vehicular drives shall be coordinated and approved with the Public Works Department and Planning and Community Development Department. The City will approve all curb break locations for access to the Site for off-street and truck loading. 7. Screening - Screening of air conditioning and other equipment on or in the buildings shall be screened to the extent and in the manner approved by the Agency and the City. Adequate loading/unloading space shall be provided as approved by the Agency. All loading spaces visible from the street shall be landscaped or screened to prevent an unsightly or barren appearance. 8. Landscaping - Landscaping for the site shall be consistent with the architectural theme of the project and shall incorporate drought -resistant plant materials and low water usage irrigation. Plant materials shall conform to that recommended in the Capistrano Beach Specific Plan and as approved by the Planning Commission and City. Unless stated specifically otherwise in this document, Developer shall maintain all on Site landscaping and related features at his sole cost and expense. A detailed landscape/irrigation plan shall be approved by the City prior to issuance of any building permits. Said plan shall include,but not be limited to: type, size and location of all plants and trees; type of ground cover; sprinklers; all walls, fences, or barriers; trash enclosures; driveways; parking lots and security lighting; and type, location, and assignment of street addresses on property.Landscaping shall be installed in accordance with the approved plan prior to release of utilities. Design of trash enclosure(s) shall be approved by the City. All 12-09-86 Attachment No. 2199k/2299/16 Page 5 of 10 landscaped areas shall be separated from paved vehicular areas by 6 -inch high continuous Portland Cement Concrete curbing. Specific attention shall be given to the buffer area to the north side of the Site. The buffer shall be approved by the City and Agency, as well as the landscaping elements. The design shall be in harmony with the overall project design. 9. Signs - Sign design, color selection, letter style and placement shall be compatible with the architectural theme of the Site. Signs, shall be limited in size, subdued and otherwise designated to contribute positively to the environment. Signs identifying the building use will be permitted, but their height, size, location, color, lighting and design will be subject to Agency and City approval and must conform to the Planned Community District adopted for the project. No animated signs or signs extending above the roof parapet are allowed. Permits must be received for all signs in accordance with the San Juan Capistrano Municipal Code. 10. Maintenance and Operation - Except if within a public right of way, on-site Improvements to be maintained by the Developer shall include but not be limited to sidewalks, pedestrian lighting, landscaping and architectural elements identifying the site. 11. Engineering/Public Improvements - Developer shall submit a grading plan, street improvement plans, hydrology and hydraulic calculations to the Public Works Department and Orange County Environmental Management Agency. Developer shall be responsible for the design and construction of all improvements in any public right-of-way required in connection with Development of the Site (referred to as "Public Right of Way Improvements"). As provided in paragraph III below, Design of all Public Right of Way Improvements shall require the approval of the Community Planning and Development and Public Works departments and, if applicable, Orange County Environmental Management Agency and A.T. & S.F.R.R. All costs and expenses of designing and constructing Public Right of Way Improvements shall be paid for by the Agency. 12-09-86 Attachment No. 5 2199k/2299/16 Page 6 of 10 12. Utilities - Developer shall provide for the onsite installation or the relocation of such sewer, storm drain, water, gas, electric, telephone, cable television and other utility distribution lines, installations and facilities as are necessary to be installed or relocated in connection with the Site by reason of the new development. Developer shall be responsible for all necessary connections/ hookup interconnects for existing and new utilities from the Site to the curbline except for sewer and storm drain which Developer shall install hookups on the Site. The cost of the design and construction and other related costs of the storm drain on the Site shall be the sole responsibility of the Agency. Developer shall connect to existing sewer on site and shall be responsible for any relocation, if -:ecessary, of this on-site sewer line. Any new on-site sewer lines constructed shall be at the Developer's cost. All such facilities located above -ground shall meet with the approval of the Community Planning and Development Department and the serving Utility. Said installation shall be in a manner acceptable to the public utility and shall be in the form of a vault, wall cabinet or wallbox, and shall be installed in accordance with standard plans and specifications of the City of San Juan Capistrano. Developer shall provide for the installation of Cable T.V. facilities and equipment for all buildings constructed on-site. Utility facilities and related equipment which are to remain as agreed to by the Agency and the Developer shall be protected by the Developer or the public utility which operates and maintains such facilities and related equipment. 13. Development Fees a. Definitions - For purpose of this paragraph 13, the following terms shall apply: 1) "Development Fees" shall mean all City fees in connection with the development of the Site, including, but not limited to: 12-09-86 Attachment No. 5 2199k/2299/16 Page 7 of 10 a) Engineering fees, including, but not limited to: Plan Check, Development Inspections, Sewer Capacity Fees, and Agricultural Preservation Fees. b) Planning fees, including, but not limited to Zone Change Fees, Agricultural Control, General Plan Amendment, Parcel Map, and E.I.R. Review. C) Building fees, including, but not limited to: Systems Development, Transportation Corridor Fees, and Building Permit Fees. b. The Agency shall timely pay to the City its share of Development Fetes as provided in paragraph c below. The Developer shall timely pay its share of Development Fees as provided in paragraph c below. Developer shall be responsible for all Development Fees to any other governmental body other than the City. C. Development Fees shall be payable thirty-two percent (32%) by the Developer and sixty-eight percent (68%) payable by the Agency. 14. Fire - All occupied structures shall be provided with automatic fire sprinklers, if required by the fire department or building codes. All vehicular ways shall be capable of supporting a fire truck as directed by the Fire Department . Water improvement plans shall be approved by the County Fire Department. Water mains shall be of adequate size, as specified by by the County Fire Department and City Public Works Department. Access consisting of a minimum 20' (36' if Parking permitted) roadway capable of supporting 12-09-86 Attachment No. 5 2199k/2299/16 Page 8 of 10 0 9 fire apparatus shall be maintained to all fire hydrants from the time that the hydrants are placed in service. Special consideration shall be given to maintaining the integrity of such roadways during periods of inclement weather. III. OFF-SITE DEVELOPMENT AND IMPROVEMENTS A. The Developer shall cause to be designed and constructed the following "Public Right of Way Improvements" the entire cost and expense of which shall be paid for by the Agency: 1. Water line to provide water service from San Juan Creek Road to the Site. 2. Street improvements to include approximately 1,650 lineal feet of curb and gutter; 776 tons of asphalt concrete; 2,238 tons of aggregate base; 6,900 square feet of sidewalk; and signing, striping and landscapiong. 3. Traffic signal at the entrance to the Site and a traffic signal at Avenida Averopuerro. 4. Drainage lines estimated to be approximately 2,167 lineal feet and four junction structures. 5. Street lighting and fire hydrants. 6. Landscaping within public easements or rights of way. 7. Installation and relocation by the public utility companies of such sewers, drains, water and gas distribution lines, electric and telephone and all other public utility lines installations and facilities. 8. Undergrounding of public utilities. 9. Any and all other Public Right of Way Improvements required by the City, County or other governmental agency in connection with the development of the Site. B. Bid Process. The Developer shall obtain three bids for all Public Right of Way Improvements, and the storm drain referred to in Paragraph II(B)(12) of this Scope of Development and select the lowest bid unless for good 12-09-86 Attachment No. 5 2199k/2299/16 Page 9 of 10 reason Developer chooses a higher bid. Developer shall submit the three bids to the Agency. The Agency shall, in writing, approve the bid selected by the Developer within ten (10) days after receipt of such bids or direct the Developer to accept a different bid. I£ the Agency fails to approve the selected bid or direct the Developer to accept a different bid within such ten (10) day period, the selected bid by Developer shall be deemed approved by the Agency. C. Advances of Funds. The Developer shall advance the funds necessary for the cost of the design and construction and other related expenses of the storm drain on the Site referred to in Paragraph II(B)(12) herein and the Public Right of Way Improvements as provided in this paragraph III. Such advances shall be deemed part of the Loan from the Developer to the Agency as provided in Section 301 0£ the Agreement. In the event the maximum loan amount as provided in Section 301 of the Agreement is reached, then any additional funds necessary for Agency's financial obligations for the storm drain and Public Right of Way Improvements and Agency's share of Development Fees shall be paid immediately by the Agency from its own funds. D. Utility Work. Any utility work shall be performed in accordance with the technical specifications, standards and practices of the City and the appropriate utility owner. The Developer's plans for such public improvements shall be submitted to the Agency and the City for review and approval prior to the advertisement for bids. Once such items are constructed, Developer shall be responsible, at its expense, for any and all repairs due to damages caused by Developer's construction and any changes required by the Developer. 12-09-86 Attachment No. 5 2199k/2299/16 Page 10 of 10 EXHIBIT 1 - PHASING PLAN For purposes of thisng plan, proposed building &red drawn to scale. Building sites are numbered as 2•.- Second Phase; 3 - Third Phase. L O !� E should not be consid- s: 1 - First Phase; --=__ __ �'_-_ H!;�il � 'Itt IIII�I!': j��l!�. L 'lilll� ' I �.1 �..r.i....iiriL:. n r III' II I l H I..1 u • • !)lJ1UCAKU ASSUCIAI(5 • R ♦[t u1111 Il'RI A\O YI A��I� n ATTACHMENT NO. 7 (Form of Note) UNITED STATES OF AMERICA STATE OF CALIFORNIA COUNTY OF ORANGE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY PROMISSORY NOTE Rate of Dated Interest: percent ( ) per annum Date: Owner: Principal Amount: 1. The San Juan Capistrano Community Redevelopment Agency, in the County of Orange, State of California (the "Agency"), a public body corporate and politic, duly organized and existing under the laws of the State of California, for value received, promises to pay to the order of The Price Company, a California corporation (the "Developer") at 2657 Ariane Drive, San Diego, California, or its permitted assigns, the principal sum of Five Million One Hundred Seven Thousand Five Hundred Seventeen Dollars ($5,107,517) or such lesser amount as may be advanced and outstanding and in like manner to pay interest in said sum from the date of each advance at the Rate of Interest set forth above. Notwithstanding the Rate of Interest on the Note herein specified, such rate shall not exceed the stated maximum rate of interest permitted on bonds issued by a redevelopment agency pursuant to Section 33645 of the Health and Safety Code of the State of California, as amended, or the maximum rate of interest provided by law. The principal of and interest on this Note are payable in lawful money of the United States of America, such payments to be made to the Developer by check or draft mailed to the Developer at the address referred to above or such other address as the Developer may instruct in writing to the Agency. 12-09-86 Attachment No 2199k/2299/16 Page 1 of 5 2. This Note is issued for the purpose of providing funds to finance certain redevelopment activities of the Agency and the Developer, all as set forth and described in the Disposition and Development Agreement, dated as of 1986, by and between the Agency and the Developer (the "Agreement"), which is incorporated herein by reference. The Note is issued under the authority and pursuant to the Community Redevelopment Law, commencing with Section 33000, of the Health and Safety Code of the State of California, as amended (the "Law") and is a general obligation of the Agency. 3. This Note is issued under and secured by and entitled to the protection of the Agreement as from time to time amended and supplemented, pursuant to which the Tax Revenues (as defined herein) are pledged to secure the payment of the principal of and interest on this Note; but in no event shall the principal of or interest on this Note be payable out of any funds other than those of the Agency. 4. The obligation of the Agency to repay the principal of and interest on this Note does not constitute a debt of the City of San Juan Capistrano, the State of California or any of its political subdivisions, and does not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction. Neither the members of the Agency nor any persons executing this Note are liable personally on this Note by reason of its execution. 5. This Note, together with any accrued interest thereon then owing, may be paid in full in advance of any Payment Date established herein without penalty. Upon such prepayment of the principal amount of this Note, together with any accrued interest thereon then owing, the holder of such Note shall surrender the Note at the principal corporate office of the Agency in San Juan Capistrano, California, and, notwithstanding any failure to surrender such Note, all obligaitons and duties of the Agency shall thereupon cease to exist and the Note shall no longer be secured by the Agreement and shall not be deemed to be outstanding under the provisions of the Agreement. 6. This Note may not be assigned, transferred or otherwise pledged or conveyed, either in whole or in part, by the Developer, without the express written consent of the Agency. 7. For purposes of this section, the following terms shall apply: (a) "Tax Revenues" for a Note Year shall mean the sum of an amount equal to one hundred percent (100%) of that portion of taxes derived by the City and/or the Agency 12-09-86 Attachment No. 7 2199k/2299/16 Page 2 of 5 from the imposition of the Bradley Burns Uniform Local Sales and Use Tax Law commencing with Section 7200 of the Revenue and Taxation Code of the State of California, as amended, arising from all businesses and activities conducted on the Site from time to time, which are subject to such Sales and Use Tax Law. (b) "Allocated Tax Revenues" shall mean the Tax Revenues considered allocated each Note Year to the Developer based upon the following allocation each Note Year: (1) First $400,000 to Agency; (2) Next $600,000 to Developer; (3) Balance 50% to Agency and 50% to Developer. (c) "Note Year" means (i) the twelve (12) calendar months beginning on the first day that a new Price Club facility is open (on the Property) for business to the public, and (ii) each twelve (12) calendar months thereafter. I£ the Price Club opens on a day other than the first day of a calendar month, the first NOTE year shall consist of the twelve calendar months beginning with the first calendar month after the date the Price Club opens plus the period from the date of the opening until the first day of the first calendar month after the opening. (f) "Debt Service Payment" means each and every payment required to be made by the Agency under paragraph 8 below in Repayment of Principal and Interest on this Note. 8. Note Payment Provided Developer has completed and opened a Price Club for business and Developer has not opened a Price Club or similar retail operation within ten (10) miles from the incorporated boundaries of the City of San Juan Capistrano as such boundaries presently exist shown in Attachment No. 8 of the Agreement, in which later event the Note shall be deemed fully discharged, the Agency shall make Debt Service Payments on each Payment Date during each Note Year in an amount equal to the total Allocated Tax Revenues for the Note Year as of the Payment Date less any Debt Service Payment previously paid to 12-09-86 Attachment No. 7 2199k/2299/16 Page 3 of 5 (d) "Payment Date" means the last day of the sixth month of any such Note Year and the first day of any such Note Year. (e) "Interest Rate" means prime rate as charged by Bank of America NT as of seven (7) days prior to the close of escrow. (f) "Debt Service Payment" means each and every payment required to be made by the Agency under paragraph 8 below in Repayment of Principal and Interest on this Note. 8. Note Payment Provided Developer has completed and opened a Price Club for business and Developer has not opened a Price Club or similar retail operation within ten (10) miles from the incorporated boundaries of the City of San Juan Capistrano as such boundaries presently exist shown in Attachment No. 8 of the Agreement, in which later event the Note shall be deemed fully discharged, the Agency shall make Debt Service Payments on each Payment Date during each Note Year in an amount equal to the total Allocated Tax Revenues for the Note Year as of the Payment Date less any Debt Service Payment previously paid to 12-09-86 Attachment No. 7 2199k/2299/16 Page 3 of 5 Developer for such Note Year. Debt Service Payments shall be credited to the payment of all accrued but unpaid Interest and the balance to principal. Debt Service Payments shall be made for a period of twenty-three (23) Note Years less one (1) year for each $120,000 in principal reduction as a result of repayment by Agency to Developer of any unexpended portion of the Loan pursuant to Paragraph 2 of Section 301 of the Agreement. In the event that Debt Service Payments are insufficient to fully discharge the Note within the Note Years described in the sentence immediately preceding then, in such event, the unpaid balance of the Note, including any accrued interest, shall be deemed forgiven. In the event that the Agency fails to make Debt Service Payments on any Payment Date and fails to cure same within thirty (30) days after written notice from the Developer, Agency hereby convenants to adopt a resolution setting a tax rate in an amount sufficient to provide funds to satisfy Agency's debt to the Developer under the Note upon all retail sales in the Project Area pursuant to the Ordinance described in Subparagraph (c) of Paragraph 1 in Section 402 0£ the Agreement and to transmit same to the State Board of Equalization upon adoption. Upon receipt of such sales and use tax from the. State, Agency shall forthwith make Debt Service Payments as described herein. All sales taxes to be received by the Agency pursuant to this Paragraph 8 are deemed pledged to secure the Agency's debt to the Developer. 9. Any late payment of interest due on this Note shall itself bear interest from the date due until paid at the interest rate provided herein. 10. This Note has been executed in the State of California and shall be construed and interpreted according to the laws of the State of California. 11. The Agency promises to pay all costs and expenses, including reasonable attorneys' fees incurred in collecting payment on this Note or in enforcing any judgment obtained in any legal process to collect on this Note, whether or not legal action is instituted. 12. In the event the Agency defaults in making any payment due under this Note, and does not cure such default within thirty (30) days after written notice from the Developer to cure such default, then,the entire unpaid principal balance and accrued interest will be due and apayable. Failure of Developer to give such written notice shall not be deemed a waiver of the default by the Agency. 12-09-86 Attachment No. 7 2199k/2299/16 Page 4 of 5 0 IN WITNESS WHEREOF, the San Juan Capistrano Community Redevelopment Agency has caused this Note to be executed in its name by the manual signature of its Chairperson and attested by the manual signature of its Executive Director and its corporate seal to be affixed hereto or imprinted hereon, and has caused this Note to be dated as of , 1987. SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY Chairperson (SEAL) ATTEST: Executive Director APPROVED AS TO FORM: Agency Counsel 12-09-86 Attachment No. 7 2199k/2299/16 Page 5 of 5 1�• _ CITY OF BAN JUAN CAPISTRiANO price club radius restriction map OtA AL •4 , esti . `.+ ',,• f Y I- i�' �'j`.3 � WSJ +� IiI -. � y��� ���•� r � 1:. �I�•- 11;, Attachment no.8 a 1�• _ CITY OF BAN JUAN CAPISTRiANO price club radius restriction map OtA AL •4 , esti . `.+ ',,• f Y I- i�' �'j`.3 � WSJ +� IiI -. � y��� ���•� r � 1:. �I�•- 11;, Attachment no.8 • a' ATTACHMENT NO..9 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: THE PRICE COMPANY 2550 Fifth Avenue Suite 629 Dan Diego, California 92103 [Space above for recorder.] CERTIFICATE OF COMPLETION WHEREAS, by Grant Deed recorded on , as Document No. of the Official Records of the County Recorder of the County of , California, the San Juan Capistrano Community Redevelopment Agency, a public body, corporate and politic, sometimes hereinafter referred to as "Agency", conveyed to THE PRICE COMPANY, a California corporation, sometimes hereinafter referred to as the "Developer", certain real property situated in the City of Alhambra, California, described on Exhibit "A" attached hereto and made a part hereof; and WHEREAS, the Grant Deed incorporates by reference that certain Disposition and Developmen Agreement by and between the San Juan Capistrano Community Redevelopment Agency and The Price Company, dated , 1986, and recorded in the Official Records of the County Clerk of the County of Orange, California, on , as Document No. hereinafter referred to as the "Agreement"; and WHEREAS, as referenced in said Agreement, the Agency shall furnish the Developer with a Certificate of Completion upon completion of construction and development, which certificate shall be in such form as to permit it to be recorded in the Official Records of the County Recorder of the County of Orange, California; and WHEREAS, such Certificate of Completion shall constitute a conclusive determination by the Agency of the satisfactory completion by the Developer of the construction and development required by the Agreement and of the Developer's full compliance with the terms of the Agreement with respect to such construction and development; and WHEREAS, the Agency has conclusively determined that the construction and development on the real property described in 12-09-86 Attachment No. 9 2199k/2299/16 Page 1 of 2 Exhibit "A" required by the Agreement has been satisfactorily completed by the Developer in full compliance with the terms of the Agreement. NOW, THEREFORE, 1. As provided in the Agreement, the Agency does hereby certify and determine that the construction and development on the real property described in Exhibit "A" has been fully and satisfactorily performed and completed in full compliance with the terms of the Agreement. 2. Except as otherwise expressly provided in this Certificate of Completion, nothing contained in this instrument shall modify in any other way any other provisions of the Agreement. IN WITNESS WHEREOF, the Certificate of Completion this _ 1986. Agency has executed this day of SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY U7 Executive Director 12-09-86 Attachment No. 9 2199k/2299/16 Page 2 of 2