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11-0104_CHRYSLER GROUP REALTY CO. LLC._AgreementAGREEMENT REGARDING OPERATING COVENANT AND RESTRICTIVE COVENANTS This. AGREEMENT REGARDING OPERATING COVENANT AND RESTRICTIVE COVLNANTS (the "Agreement") is entered into this day ofAAOOLe- % 2011 (the "Date of Agreement"), by and between the SAN JUAN CAPISTRANO COUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency") and CHRYSLER GROUP REALTY COMPANY LLC, a Delaware limited liability company ("CRC"), with reference to the following facts: A. CRC desires to open and operate a new automobile dealership under a Chrysler franchise within the Redevelopment Project Area. B. The Agency has found that it would benefit the Redevelopment Project Area speci#ically, and the City generally, to induce CRC to open and operate a new Chrysler dealership at 32881 Camino Capistrano (the "Property") which Property is farther described. in Exhibit A hereto. C. CRC is willing to be bound by the terms of the Covenants contained herein in return for which the Agency will pay to CRC the Covenant Consideration also described herein. D. The purpose and intention of the Agency entering into this Agreement with CRC is to (i) assist in the elimination of blight, (ii) enhance local employment, and (iii) expand the Agency's and City's revenue base. NOW, THEREFORE, in consideration of the mutual covenants and conditions hereinafter set forth, the parties hereto agree as follows: 1. Definitions. 1.1 "Additional Covenants of CRC" is defined in Section S. t.2 "Affiliate" means any person, directly or indirectly, In control. of, controlled by, or under common control with, a Party. A Party shall be deemed to control another person if such Party possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other person, whether through the ownership of voting securities, by contract or otherwise. 1..3 "Agency" means the San Juan Capistrano Community Redevelopment Agency, a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law, and any assignee of or successor to its rights, powers and responsibilities. 1.4 "Agreement" means this Agreement Regarding Operating Covenant and Restrictive Covenants. 1.5 "Automobile Dealership Improvements" is defined in Recital B. 1.5 "Business Days" and "Days" are defined in Section 3.0. DOCSOCIl 454142v51022299-0090 1.7 "Chrysler Dealership" means a dealership operating pursuant to a franchise agreement with Chrysler Group LLC. 1.8 "Chrysler Group" means Chrysler Group LLC, a Delaware limited liability company, which is the parent entity of CRC. corporation. 1.9 "City" means the City of San Tuan Capistrano, a California municipal 1.:10 "Covenant Consideration" is defined in. Section. 3.1.. 1..11 "Covenants" is defined in Section 2.4. 1.12 "CRC" weans Chrysler Group Realty Company LLC, a Delaware limited liability company. 1.13 "Date of Agreement" is defined in the Preamble. 1.14 "Escrow Account" is defined in Section 3.4. 1.15 "Escrow Holder" shall mean Fidelity National Title Company, Attention: Valerie Rapp, located at 1300 Dove Street, Suite 310, Newport Beach, California 92660. 1.16 "Environmental Claim" shall mean any claim, action, suit, or proceeding for personal injury (including sickness, disease or death), or for tangible or intangible injury or damage to property or natural resources or the environment; including, without limitation, compensation for lost profits, wages, business income, or other economic loss, consequential damages, diminution of property value or loss of use of property, nuisance, or for any violation or alleged violation of, or noncompliance with, the requirements of any Environmental Law. 1.17 "Environmental Cleanup Liability" shall mean any cost or expense incurred to investigate, monitor, remove, remediate, treat, clean up, abate or otherwise respond to any Release or threatened Release of Hazardous Materials, including, without limitation, the cost of obtaining site closure from applicable governmental agencies and the cost of restoring the affected property upon completion of responsive action, all to the extent necessary in consideration of the commercial use of the Property. 1.18 "Environmental Compliance Costs" shall mean any cost or expense necessary to enable the real property impacted by the presence of Hazardous Materials to comply with all applicable Environmental Laws. 1.19 "Environmental Law" shall mean any applicable federal, California, regional or local law, statute, ordinance, rule, regulation or order for the protection of human health or the environment, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9603, etseq.); the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.); the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.); the Clean Air Act (42 U.S.C. § 7401 et seq.); the Safe Drinking Water Act (42 U.S.C. § 300f et seg.); the Emergency Planning and Community Right To Know Act of 1986 (42 U.S.C. § 11001 et seq.); the Occupational Safety and Health Act (29 U.S.C. § 651 et seq.); the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. § 1.36 et seq.); the Hazardous Materials 2 DOCSOC/ 1454142v5/022299-0090 Transportation Act (49 U.S.C, § 5101 etseq.); the Carpenter Presley Tanner Hazardous Substance Account Act (Health. and Safety Code § 25300 et seq.); the Hazardous Waste Control Law (Health and Safety Code § 25100 et seq.); the Hazardous Waste Disposal Land Use law (Health and Safety Code § 25220 et seq.); the Porter Cologne Water Quality Control Act (Water Code § 13000 et seq.); Hazardous Materials Release Response Plans and Inventory (Health and Safety Code § 25500 et seq.); Underground Storage of Hazardous Substances (Health and. Safety § 25280 et seq.); The Safe Drinking Water and Toxic Enforcement Act of 1956 (Proposition 65) (Health and Safety Code § 25249.5 25249.13); the Asbestos Notification Law (Health and Safety Code § 2591.5 et seq.); the California Occupational Safety and Health Act (Labor Code § 6300 et seq.); Chapters 10 and I1, Division 4.5, Title 22, California Code of Regulations; and any law or regulation implementing, amending or succeeding any of the foregoing, and any similar laws or regulations at any time in effect having any of the purposes designated above. 3.20 "Event of Default" is defined in Section 4.3. 1.21 "force Majeure" is defined in Section 15. 1.22 "Franchise(s)" means the Chrysler Dealership which will operate on the Property under a naive which will include "San Juan Capistrano' or "Capistrano' ("Capistrano') and any other automobile dealership permitted to operate on the Property hereunder. 1.23 "Governmental Requirement(s)" means all valid and enforceable laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State, the County, the City or any other political subdivision in which the Property is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over Agency, Developer or the Property, including, without limitation., all applicable state labor standards, the City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation (to the extent applicable), Labor Code Sections 1770 et seq., the Americans With Disabilities Act, 42 U,S.C. Section 12101, et seq., Government Code Section 4450, et seg., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq. 1.24 "Hazardous Materials" shall mean any pollutant, contaminant, hazardous or toxic substance, material or waste which is or becomes identified, listed or regulated as such under any Envirownental Law by the United States government, the State of California or any regional or local governmental authority having jurisdiction over the Property. 1..25 "Indemnitees" is defined in Section 2.3. 1.26 "Initial Payment" shall be an amount equal to Three Hundred Thousand Dollars ($300,000). 1.27 "Initial Payment Date" is defined in Section 3.1. L28 "Liquidated Damages Amount" is defined in Section 4.4. 1..29 "Opening for Business" or "Open(ed) for Business" is defined in Section 2.1. DOCSOC 1454142v51022299-0090 1.30 "Operate" or "Operation" is defined in Section 2.1. 1.31 "Operating Period" is defined in Section 2.1. 1.32 "Operator(s)" means the entity designated by Chrysler Group as the operator of the Franchise. The initial Operator will be Capo Motors, LLC, a California limited liability company, dba Orange Coast Chrysler/Jeep/Dodge of San Juan Capistrano. 1.33 "Permitted Assignee" is defined in Section 9. 1.34 "Person" or "Party" is defined in Section 16. 1.35 "Property" is defined in Recital B. 1.36 "Redevelopment Project Area" means the geographical boundaries of the redevelopment plan ("Redevelopment Plan") approved and adopted by the City Council of the City on July 12, 1983 by Ordinance No. 488, as the same has been amended from time to time. 1.37 "Release" shall mean the release, as defined in Health and Safety Code §§ 25320 and 25321, of a Hazardous Material or Hazardous Materials. 1.38 "Sales and Use Tax Law" is defined. in Section 1.39. 1.39 ",Sales Tax Revenues" means that portion of tax revenues derived and received by the City 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, or its equivalent (the "Sales and Use Tax Lary"), that the State Board of Equalization ("SBOE") determines are generated by the Chrysler Dealership and any addi.tionaI Franchises on the Property, conducted from the date that CRC Opens for Business and commences operation of its Chrysler Dealership on the Property, until thirteen (13) years from the date of Opening for Business unless the Operating Period is earlier terminated (the "Sales Tax Revenue Accrual Period"); provided that the Semi -Annual Payments shall not be first paid unless and until the Initial Payment Date occurs and the accrual of such Sales Tax Revenues for purposes of computing the Semi -Annual Payments shall be for a period of not to exceed one hundred eighty (180) days. In no event, shall the Sales Tax Revenue Accrual Period exceed thirteen (13) years from the Opening of Business. Sales Tax Revenues shall be based upon the total Sales Tax Revenues received by the City (less any State Board of Equalization adjustments that would have modified previous payments to CRC) during the applicable preceding semi-annual period (for the February 1st payment, Sales Tax Revenues received during the preceding months of April through September, and for the August Ist payment, Sales Tax Revenues received during the preceding months of October through March) as confirmed by the report furnished by the City's sales tax consultant as provided by the State Board of Equalization, and the sales tax returns as filed by CRC, and any verifiable reporting as it relates to sales and leasing activities generated by CRC and use taxes assessed and collected thereon by a third party leasing or financing company. CRC shall provide documentation supporting the calculation of Sales Tax Revenues to the CRC. In. the event that the first payment measured by Sales Tax Revenues hereunder (i.e., other than the Initial Payment) or the last such payment due hereunder covers less than a full semi-annual period, the amount of Sales Tax Revenues for said partial semi-annual period shall be calculated by multiplying the total Sales Revenues for the entire semi-annual period (assuming that CRC was entitled to receive Covenant Consideration for the semi-annual period) by a noe sac/ 1454142v5/022299-0090 fraction in which the numerator equals the number of days in such semi-annual period included within the period of Agency's payment obligation and in which the denominator equals the total number of days in the semi-annual period. 1.40 "Sales Tax Revenue Accrual Period" is defined in Section 1.39. 1.41 "SBOE" is defined in Section 1.39. 1.42 "Serpi-Annual Payments" is defined in Section 3.1. 1.43 "Site Map" means that map attached hereto as Exhibit B and incorporated herein by reference showing the Property. 2. Operating Covenant and Restrictive Covenants. 2.1 Operating Covenant. CRC hereby covenants and agrees that it shall open, or cause to be opened, for business to the general public ("Opening for Business" or "Open(ed) for Business") and continuously operate, or cause to be operated on the Property, an automobile dealership during normal business hours, as pennitted by the City, primarily for the sale and lease of all makes and models of Chrysler vehicles, and secondarily, the sale and lease of used vehicles, and other ancillary automotive uses commonly associated with such uses from time to time, including without limitation the servicing and repair of vehicles, and vehicle parts sales ("Operate" or "Operation") for a period of twenty (20) years from the date of Opening for Business (the "Operating Period"). Such continuous Operation shall be subject to the force Majeure provisions of Section 15 hereof, and temporary interruptions for commercially reasonable periods of time for casualty losses, repairs, replacment of an Operator, and the like. 2.2 Restrictive Covenants. During the Operating Period, CRC shall do or cause to be done the following: (1) designate the Property as the point of sale for sales tax purposes in all. retail sales and lease contracts for vehicles whose sales and leases originate frorn the Property; (2) to the extent commercially reasonable cause all. vehicles purchased through the Operator via internet/online sales to be scheduled for delivery from the property, and (3) at no cost to Agency, keep and maintain the Property and the Automobile Dealership Improvements thereon and all facilities appurtenant thereto, consistent with automobile dealerships, in good order and repair and safe condition, and the whole of the Property, the Automobile Dealership Improvements, and landscaping in a clean, sanitary; and orderly condition free from debris, graffiti and waste materials. In addition, during such Operating Period and subject to CRC's right to contest same, CRC shall observe and comply with all Governmental Requirements. 2.3 Indemnities/Release. CRC agrees to indemnify, protect, defend, reimburse and hold the Agency and City and their elected and appointed officials, employees, representatives, agents, consultants, attorneys, volunteers, successors and assigns, each of them jointly and severally (collectively, the "Indemnitees), harmless from and against any and all liabilities, suits, actions, claims, demands, penalties, damages (including, without limitation, penalties, fines and monetary sanctions), losses, costs or expenses, proceedings, lawsuits, orders, judgments, fines, obligations, encumbrances, liens, expenses (including without limitation all costs and expenses reasonably incurred to investigate and defend claims, whether or not any such claim is ultimately defeated, and costs and expenses reasonably incurred for consultants, court fees, administrative fees, expert witness fees, and attorneys' fees and remedial and response costs) of whatever kind or nature, contingent or DOC SOC/ 1454142v5/022299-0090 otherwise, matured or not matured, foreseeable or unforeseeable, at law or in equity, any of which are suffered or incurred by said Indemnitees, or assessed, levied or asserted by any person or entity (whether governmental or private) against said Indemnitees, relating to, resulting from, arising out of or based upon, in whole or in part, the following: (i) any act, omission or negligence of CRC or any lessee of CRC, or their respective contractors, licensees, invitees, agents, sublessees, servants or employees, wheresoever on or adjacent to the Property that the same may occur, (ii) any use of the Property, or any accident, injury, death or damage to any person or property occurring in, on or about the Property or any part thereof, or from the conduct of CRC's business or from any activity, work or thing done, permitted or suffered by CRC or its sublessees, contractors, employees, or invitees, in, on, or about the Property, (iii) CRC's failure to comply with Governmental Requirements, (iv) the presence, release, use, generation, discharge, storage, disposal, removal or remediation of any Hazardous Materials on, in, under, or emanating from the Property, (v) the violation, or alleged violation, or compliance with the requirements of any Environmental Law, or any other statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials to, from, on, in, under, about or around the Property, or (vi) any Environmental Cleanup Liability or Environmental Compliance Costs related to the Property. This indemnity shall include, without limitation., any liabilities arising from or out of or relating in any manner to any Environmental Claim or any nuisance, contamination, leak, spill, release or other adverse effect on the environment caused by or resulting from. any Hazardous Material, or toxic substances or waste existing on, under, or emanating from the Property. Notwithstanding the foregoing, the indemnities described in (i) and (ii) above shall not apply to the extent of the sole negligence or misconduct of the Indemnitees. CRC, on behalf of itself and its successors, Affiliates, partners, and assigns hereby fully and entirely releases and discharges the Agency (including its elected and appointed officials, employees, representatives, agents, consultants, attorneys, volunteers, successors and assigns), and of each of them alone, of and from any and all liabilities, suits, actions, claims, demands, penalties, damages (including, without limitation, penalties, fines and monetary sanctions), losses, costs or expenses, proceedings, lawsuits, orders, judgments, fines, obligations, encurnbrances, or liens, of whatever kind or nature, matured or not matured, anticipated or unanticipated, known or unknown, at law or in equity, on account of the presence of any Hazardous Materials (i) in., on, under, or emanating from the Property, or (ii) in connection with, or in any way related to, the Property, or (iii) for or on account of the physical condition of the Property. This release constitutes an explicit waiver by CRC of each and all of the provisions of California Civil Code Section 1542, which states as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by hire or her must have materially affected his or her settlement with the debtor." CRC hereby declares and represents that it is effecting and executing this release of the Agency after having read all of this release and with full understanding of its meaning and effect and after having received full legal advice as to its rights from an attorney. 2.4 Covenants. The foregoing sub -Sections 2.1, 2.2 and 2.3 are collectively hereinafter referred to as the "Covenants." DOCS OC/ 1454142v5/0222 99-0090 2.5 Additional Franchise(s). Subject to compliance with applicable laws related thereto, including, without limitation, the provisions of Health and Safety Code Section 33426.7, CRC, or any Affiliate of CRC, shall have the right to Operate additional Franchise(s) on the Property without the prier written approval of the Agency. 3. Covenant: Consideration. 3.1 Payment of Consideration. In consideration for CRC's agreement to be bound by the Covenants, Agency agrees to pay to CRC (i) the all cash sum in the amount of the Initial Payment within five (5) business days from the date of Opening for Business (the "Initial Payment Date") plus (ii) an. amount equal to fifty percent (50%) of all Sales Tax Revenues in each such year generated during the Sales Tax Revenue Accrual Period, which payments shall be made until the earlier of (a) receipt by CRC of an amount equal to Two Million Dollars ($2,000,000) inclusive of the Initial Payment; or (b) expiration of or earlier termination of the Sales Tax Revenue Accrual Period (payments described in clause (ii) are referred to herein. as the "Semi -Annual Payments," and together with the Initial Payment are collectively referred to herein as the "Covenant Consideration"). CRC shall notify the Agency when the Initial Payment is due; provided, however, in no event shall the Initial Payment or the first Semi -Annual Payment be due earlier then five (5) business days following the Agency's receipt of notice from CRC that the Initial Payment Date has occurred. CRC and Agency acknowledge and agree that the definition of Sales Tax Revenues as used herein is used strictly as a pleasure of the amount of payment due hereunder and as a means of computing the Semi -Annual Payments. Semi -Annual Payments shall be made semi annually, on or before February 1st and August 1st of each year during the Sales Tax Revenue Accrual Period, consistent with the procedure described in the definition of "Sales Tax Revenues" above. The Agency, prior to malting each such Semi -Annual Payment, shall work with the City to determine the total. Sales Tax Revenues actually paid to the City during the prior semi-annual period. Based on the data provided by the SBOE to City, and based upon such determination and the formula described above, the Agency shall determine the amount of the applicable Semi -Annual Payment, 3.2 Cap on Consideration. Notwithstanding anything else herein contained, in no event shall the Semi -Annual Payments paid to CRC pursuant to Section 3.1 exceed the sum of One Million Seven Hundred Thousand Dollars ($1,700,000), nor shall the Covenant Consideration exceed Two Million Dollars ($2,000,000). 3.3 No Acceleration. It is acknowledged by the parties that any payments by the Agency provided for herein may only be paid in those periods in which CRC is in. compliance with the Covenants provided for herein.. Therefore, the failure of the Agency to make any payments as and when provided for in Section 3.1 shall not cause the acceleration of any future payments by the Agency to CRC beyond the date of CRC's uncured default. 3.4 Initial Payment to Escrow. Within five (5) business days after the later of (a) the execution of this Agreement by the parties, and (b) CRC providing written notice to the Agency that CRC has obtained a leasehold interest in the Property, the Agency shall deposit cash in the amount of the Initial. Payment into a joint escrow account for the benefit of Agency and CRC ("Escrow Account") with Escrow Holder, which funds shall remain in the Escrow Account until the earlier to occur of (x) the date the Initial Payment is required to be made to CRC in accordance with Section 3.1. above, at which time such funds shall be disbursed by Escrow Holder to CRC, or (y) the date that this Agreement is terminated as provided herein at which time such funds shall be disbursed by Escrow Holder to Agency. Except for accrued interest (which shall be and remain the sole DOCSOC 1454142v5/022299-0090 property of the Agency and shall be disbursed by Escrow Holder to the Agency from time to time as requested by the Agency without the requirement of the joint signature of CRC) and except following termination hereunder, no disbursements or withdrawals may be made from the Escrow Account without the joint signature of an authorized representative of the Agency and an authorized representative of CRC. Agency and CRC shall each cooperate to open the Escrow Account and deliver to Escrow Agent a commercially reasonable agreement and/or instructions that Escrow Agent rn.ay reasonably request in order to hold and manage the Initial Payment funds. 4. Defaults and Remedies. Occurrence of any or all of the following shall constitute a default by CRC under this Agreement: 4.1 CRC's failure to fully and completely comply with the Covenants as and when such compliance is required. 4.2 The filing of a petition in bankruptcy by or against CRC or appointment of a receiver or trustee of any property of CRC, or an assignment by CRC for the benefit of creditors, or adjudication that CRC is insolvent by a court, and a failure of CRC to cause such petition, appointment or assignment to be removed or discharged within sixty (60) days. 4.3 The failure by CRC to comply with any other provision of this Agreement. In the event of any default under the terms of this Agreement, the nondefaulting party shall give written notice to the defaulting party. The defaulting party shall commence and diligently thereafter pursue the curing of said default within thirty (30) days after receipt of notice of such default; provided, however, if such a cure cannot reasonably be effected within such thirty (30) day period, such failure shall not be a default so long as the defaulting party promptly commences a cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion. Failure to cure, as specified above, shall constitute an "Event of Default" hereunder. 4.4 Liquidated Damages. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY,IF THERE IS AN EVENT OF DEFAULT BY CRC HEREUNDER AFTER THE DATE THAT T14E INITIAL PAYMENT IS RELEASED TO CRC IN ACCORDANCE WITH SECTION 3, THEN AGENCY'S SOLE AND EXCLUSIVE t� REMEDY FOR SUCH EVENT OF DEFAULT SHALL BE TO TERMINATE THIS AGREEMENT',k4' AND RECEIVE FROM CRC AS LIQUIDATED DAMAGES AN AMOUNT EQUAL TO THREE HUNDRED THOUSAND DOLLARS ($300,000) (THE "LIQUIDATED DAMAGES AMOUNT"). THE PARTIES HAVE AGREED THAT AGENCY'S ACTUAL DAMAGES, IN THE EVENT OF SUCH AN EVENT OF DEFAULT BY CRC, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. AFTER. NEGOTIATION, THE PARTIES HAVE AGREED THAT, CONSIDERING ALL THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES AMOUNT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT AGENCY WOULD INCUR IN SUCH EVENT, BY PLACING THEIR INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE, THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION. TIIE PARTIES ACKNOWLEDGE THAT SUCH PAYMENT OF THE DEPOSIT IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE DOCSOC/1454142v5/€322299-0090 SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO AGENCY UNDER CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. Initials: Agency CRC `0'v In the Event of Default by CRC, and without seeking judicial relief, the following shall automatically and immediately occur: (i) CRC's right to receive Covenant Consideration during the period that the Franchise is not in compliance with the Covenants shall be suspended and the term of the payment period described in Section 3.1 herein shall not be extended; and (ii) subject to the provisions of Section 15 below, in the event the Franchise is closed for a continuous period of one (1) year, CRC's right to receive payments from Agency pursuant to this Agreement shall be permanently terminated and the terms of this Agreement shall be of no further force or effect, except for the provisions of Sections 2.3, 4, 8, 12 and 20 hereof which shall survive termination as set forth herein. 5. Representations and Warranties of CRC. CRC hereby represents and warrants as follows, each of which representations and warranties is made as of the Date of Agreement: 5.1 CRC is a Delaware limited liability company, duly organized, validly existing and in good standing under the laws of the State of California, with corporate and/or partnership powers adequate for the making and performing of this Agreement and for carrying on the business now conducted or proposed to be conducted by it. CRC has taken all corporate action required to execute, deliver and perforn this Agreement and to make all of the provisions of this Agreement the valid and enforceable obligations they purport to be and has caused this Agreement to be executed by a duly authorized partner or officer. Such corporate action is evidenced by an appropriate resolution of the members of CRC which resolution shall be delivered to Agency concurrently with CRC's delivery to Agency of an executed copy of this Agreement. 5.2 The execution and delivery of this Agreement and all related documents and the performance of its obligations hereunder by CRC do not conflict with any provision of any law or regulation to which CRC is subject, conflict with or result in a breach of or constitute a default under any of the terms, conditions or provisions of any agreement or instrument to which CRC is a party or by which CRC is bound, or any order or decree applicable to CRC, or result in the creation or imposition of any lien on any of CRC's assets or property which would materially and adversely affect the Agreement; and CRC has obtained all consents, approvals, authorizations or orders of any court or governmental agency or body, if any, required for the execution, delivery, and performance by CRC of its obligations under this Agreement. 5.3 There are no judgments, orders or decrees of any kind of record against CRC which. are unpaid or unsatisfied, nor are there any other legal or administrative proceedings pending, threatened or reasonably anticipated which could be filed before any court or administrative agency which has or is likely to have any material adverse effect on (a) the business or assets or the condition, financial or otherwise, of CRC, or (b) the ability of CRC to perform its obligations under this Agreement. 5,4 CRC has not filed any petition seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any law relating to bankruptcy or insolvency, nor has any such petition been filed against CRC. No general assignment of CRC's property has been made for the benefit of creditors, and no receiver, master, DOCSOC/ 1454142v5/022299-0090 liquidator, or trustee has been appointed for CRC or any of its property. CRC is not insolvent and the consummation of the transactions contemplated by this Agreement shall not render CRC insolvent. CRC has now and will have throughout the term of this Agreement, sufficient capital or net worth to rneet its current obligations, including all obligations under this Agreement. 5.5 CRC is a sophisticated real estate development company and its decision to enter into this Agreement is based upon its own independent investigations, evaluations, and assessments. CRC has not relied in entering into this Agreement upon any oral or written information from Agency or its employees, agents, consultants, advisors, or representatives, other than the express representations and warranties of Agency specifically set forth herein. CRC acknowledges no employee, agent, consultant, advisor or representative of Agency has been authorized to make, and CRC has not relied upon, any statements or representations made thereby, other than those specifically contained in this Agreement. 5.6 The information provided to Agency by CRC was, is, and shall remain true and correct and accurate and complete in all material respects throughout the term of this Agreement. 6. Representations and 'warranties of Agency. Agency represents and warrants as follows, each of which representations and warranties is made as of the Date of Agreement: 6.1 The execution of this Agreement and the performance by Agency of its obligations hereunder have been duly authorized and approved. The term of the Redevelopment Plan expires on July 12, 2028. 6.2 The execution and delivery of this Agreement and all related documents and the performance of Agency's obligations hereunder by Agency do not conflict with or result in a breach of or constitute a default under any of the terns, conditions or provisions of any agreement or instrument to which Agency is a party or by which Agency is bound, or any order or decree applicable to Agency, or result in the creation or imposition of any lien on any of agency's assets or property which would materially and adversely affect the Agreement; and Agency has obtained all consents, approvals, authorizations or orders of any court or governmental agency or body, if any, required for the execution, delivery, and performance by Agency of its obligations under this Agreement. 6.3 There are no judgments, orders or decrees of any kind of record against Agency which are unpaid or unsatisfied, nor are there any other legal or administrative proceedings pending, threatened or reasonably anticipated which could be filed before any court or administrative agency which has or is likely to have any material adverse effect on (a) the business or assets or the condition, financial or otherwise, of Agency, or (b) the ability of Agency to perform its obligations under this Agreement. 6.4 Agency has not filed any petition seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any law relating to bankruptcy or insolvency, nor has any such petition been filed against Agency. No general assignment of Agency's property has been made for the benefit of creditors, and no receiver, master, liquidator, or trustee has been appointed for Agency or any of its property. Agency is not insolvent and the consummation of the transactions contemplated by this Agreement snail not render Agency insolvent. 10 DOCS OC/ 1454142v 5/022299-0090 6.5 The information provided to CRC by Agency was, is, and shall remain true and correct and accurate and complete in all material respects throughout the term of this Agreement. 7. Disclaimer of Representations and Warranties of Agency. 7.1 There are no representations, agreements, arrangements, or circumstances, oral or written, between the parties hereto relating to the subject matter contained in this Agreement that are not fully expressed herein, and Agency has not made and does not make any representation or warranty concerning any matter or thing affecting or relating to the Chrysler franchise and/or the Property. 7.2 Agency has made no representations or warranties with regard to zoning and subdivision laws, ordinances, resolutions and regulations of governmental authorities having jurisdiction over the Property, and the use and improvement of the Property. 8. Additional Covenants of CRC. The following are referred to herein as "Additional Covenants of CRC." 8.1 Nondiscrimination Covenants. CRC herein covenants by and for itself, and its successors and assigns, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall the CRC or any person claiming under or through CRC, establish or permit any 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 Property. The foregoing covenants shall run with the Property. Notwithstanding the immediately preceding paragraph, with respect to familial status, the immediately preceding paragraph shall not be construed to apply to housing for older persons, as defined in Section 1.2955.9 of the Government Code. With respect to familial status, nothing in the immediately preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.1.1., and. 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to the immediately preceding paragraph. Any deeds, leases or contracts for the sale, lease, sublease or other transfer of any portion of the real property consisting of the Property shall contain the following language: (a) 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 any basis listed in subdivision (a) or (d) of Section. 12955 of the Government Code, as those bases are defined in Sections 12926, 1.2926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or 1.1 DOC SOC/ l 454142v5/022299-0090 occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing; covenants shall run with the land. Notwithstanding the immediately preceding paragraph, with respect to familial status, the immediately preceding paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the immediately preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and () of Section. 12955 of the Government Code shall apply to the immediately preceding paragraph. (b) 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: That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, 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 or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased. Notwithstanding the immediately preceding paragraph, with respect to familial status, the immediately preceding paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in the immediately preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision. (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to the immediately preceding paragraph. (c) In contracts: There shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises which are the subject of this Agreement, nor shall the grantee or any person claiming under or through him or her, establish or permit any 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 premises herein conveyed. The foregoing covenants shall run with the land. The Agency shall be a third -party beneficiary of such provisions in each such deed, lease or contract. 12 DOCS OC/ 1454142v5/022299-0090 8.2 Compliance with Governmental Requirements. Subject to CRC's right to contest same, CRC shall, at all times, comply with all applicable laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State of California, the County of Orange, the Agency or any other political subdivision in which the Property is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over the Agency, CRC, or the Property, including all applicable federal, state and local occupation, safety and health laws, rules, regulations and standards, applicable state and labor standards, applicable prevailing wage requirements, the City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City of San Tuan Capistrano and its Municipal Code, and all applicable disabled and handicapped access requirements, including, without the limitation, the Americans With Disabilities Act, 42 U&C. §12101 et seq., Government Code §4450 et seq., and the Unruh Civil Rights Act, Civil Code §51 et seq. ("(Governmental Requirements"). Nothing in this Agreement is intended by the parties to in any way require, or be construed to require, CRC to pay prevailing wages with respect to any work of construction or improvement within the Property (a "Non -Intended Prevailing Wage Requirement"). But for the understanding of the parties as reflected in the immediately preceding sentence, the parties would not have entered into this Agreement based upon terms and conditions set forth herein. CRC and Agency have made every effort in reaching this Agreement to ensure that its terms and conditions will not result in. a Non -Intended Prevailing Wage Requirement. These efforts have been conducted in the absence of any existing judicial interpretation of the recent amendment to the California prevailing wage law. If, despite such efforts, any provision of this Agreement shall be determined by any court of competent jurisdiction to result in a Non - Intended Prevailing Wage Requirement, such determination shall not invalidate or render unenforceable any provisions hereof; provided, however, that the parties hereby agree that, in such event, the parties, each acting in their sole and absolute discretion, shall attempt to reform this Agreement such that each provision of this Agreement that results in the Non -Intended Prevailing Wage Requirement may be removed from this Agreement that results in the Non -Intended Prevailing Wage Requirement may be removed from this agreement as though such provisions were never a pant of this Agreement, and, in lieu of such provision(s), replacement provisions including, without limitation, the provisions of Section 2, Section 3, and this Section 8.2 , may be included that are legal, valid and enforceable but without resulting in the Non -Intended Prevailing Wage Requirement. 8.3 Participation in Business Improvement District. Subject to commercially reasonable standards and conditions, CRC agrees to participate in, and actively support, a business improvement district or similar type association of automobile dealers the purpose of which is to promote sales of automobiles in San Juan Capistrano. 9. Assignment and Assumption. The terms, covenants, and obligations of CRC pursuant to this Agreement shall be binding upon CRC's lessees, successors and assigns to its leasehold interest in the Property or any portion. thereof. It is understood that the identity of the holder of the leasehold interest in the Property will be different from CRC and that the Franchise will be operated by the Operator. Wherever the term CRC is used in this Agreement, such term shall be deemed to refer to CRC and/or any other holder of a leasehold interest in all or a portion of the Property and/or the Operator and any authorized successor or assign of same, as provided herein. Except as to a transfer described in the last paragraph of this Section 9, notwithstanding any transfer by CRC of its leasehold interest in the Property or any portion thereof or any rights therein or any assignment by CRC of any obligations under this Agreement to an Affiliate or any other person or entity, CRC shall remain fully liable for all obligations and requirements set forth in this Agreement. During the Operating Period, CRC shall include reference to this Agreement in any lease or operating agreement respecting the Property, and each lessee or Operators must, in such lease or 13 DOCS OCI I 454142v51022299-0090 operating agreement, acknowledge and agree (i) that its interests, rights and obligations are subject to this Agreement, and (ii) that it must comply, or enable CRC to comply, with all terms and provisions of this Agreement applicable and in force and effect following the effective date of such lease or operating agreement. The rights of CRC under this Agreement shall not be subject to assignment by attachment, execution or proceedings under any provision of the Bankruptcy Act, and any such assignment or transfer shall be wholly void and of no force and effect unless written consent thereto is first obtained from the Agency. CRC may transfer its leasehold interest in all or any portion of the Property and/or Franchise(s) being operated on the Property, including its rights and obligations under this Agreement, without the approval or consent from the Agency, to any entity approved by Chrysler Group LLC or, if more than one Franchise is being operated on the Property; to any entity approved by the automobile manufacturer issuing the Franchise that is the subject of CRC's proposed transfer (a "Permitted Assignee"); provided that in any such event, CRC shall remain liable hereunder. If CRC elects to request the Agency's consent to an assignment by CRC of its leasehold interest in the Property and/or a Franchise, including its rights and obligations under this Agreement, the Agency, acting in its sole and absolute discretion, shall have the right to approve CRC's proposed assignee; provided, however, that Agency shall not withhold such consent if the proposed assignee has financial capability and operating experience at least equal to CRC's and the proposed assignee expressly assumes the obligations of CRC hereunder. If the Agency approves CRC's proposed assignee, CRC shall, following the date of such assignment, be relieved of any and all obligations including, without limitation, the Covenants set forth in Section 2 and the "Additional Covenants of CRC" set forth in Section 8 above, accruing after the date of such assignment. 10. Notices. All notices under this Agreement shall be given in writing by personal delivery, or by certified mail or registered United States Mail, return receipt requested, postage prepaid, or by overnight delivery, or by facsimile and shall be deemed communicated when received if given by personal delivery or upon receipt or rejection if mailed as provided above or upon the delivery date or attempted delivery date shown on the air bill or facsimile on a business day during business hours in the location where received, and if not then on the next business day, as the case may be. Mailed notices shall be addressed as set forth below, but either party may change its address by giving written notice thereof to the other in accordance with the provisions of this article: To Agency: San Juan Capistrano Community Redevelopment Agency 32400 Paseo Adelan.to San Juan Capistrano, California 92675 Attention: Agency Executive Director With a copy to: Stradling Yocca Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660 Attention: Thomas P. Clark, Jr., Esq. To CRC: Chrysler Group Realty Company LLC 1000 Chrysler Drive, CIMS: 485-03-20 Auburn Hills, Michigan. 48326 Attention.: Mark E. Nagel 14 DOCS©C/ 1454142v5/022299-0090 With a copy to: Howard and Howard Attorneys PLLC c/o Chrysler Croup Realty Company LLC 1000 Chrysler Drive, CIMS: 485-0320 Auburn Hills, Michigan 48325 Attention: Sally A. Rutledge, Esq. 11. Miscellaneous. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior agreements and understandings written and oral. This Agreement may not be modified or amended except in a writing signed by all parties hereto. 12. Brokerage Commissions. Agency and CRC shall each indemnify, defend and hold the other party harinless from and against any and all costs, liabilities, losses, damages, claims, causes of action or proceedings which may result from the Indemitor's dealing with any broker, agency or finder, license or otherwise in connection with the transaction covered by this Agreement. 13. Construction. The parties agree that each party and its counsel have reviewed and revised this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement or any amendments or exhibits to this Agreement. 14. Police Power. Nothing contained in this Agreement shall be deemed to limit, restrict, amend or modify, or to constitute a waiver or release of, any ordinances, notices, orders, rules, regulations or requirements (now or hereafter enacted or adopted and/or as amended from time to time) of the City and Agency, or their departments, commission, agencies and boards and the officers of the City and Agency, including without limitation, any redevelopment or general plan or any zoning ordinances, or any of their duties, obligations, rights or remedies thereunder or pursuant thereto or the general policy powers, rights, privileges and discretion in the furtherance of the public health, welfare and safety of the inbabitants of the City of San Juan Capistrano, provided, however, that neither shall take any action to frustrate or hinder the intent or effect of this Agreement. 15. Force Majeure. Time for performance hereunder shall be extended by any period of delay caused by circumstances beyond the reasonable control of the party claiming the delay despite the party's diligent efforts, other than financial. ability, provided the party claiming the delay provides written notice to the other party within a reasonable period following commencement of any such circumstances which circumstances shall include, without limitation, fire/casualty losses; dealer protests; strikes; litigation; unusually severe weather; inability to secure necessary labor, materials, or tools; environmental remediation; including governmental review and processing of environmental remediation, delays of any contractor, subcontractor, or supplier; delay caused by the other party; and acts of God (collectively, "Force Majeure"). 16. Interpretation. In this Agreement the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words "person" and "Party" include corporation, partnership, firm, trust, or association where the context so requires. 17. 'I`ime of the Essence. Time is of the essence of this Agreement and all parties' obligations under this Agreement, 1.5 DOCSOC/1454142v5/O222 99-0090 18. Authority to Execute. The person or persons executing this Agreement on behalf of CRC warrant and represent that they have the authority to execute this Agreement on behalf of their corporation, partnership or business entity and warrant and represent that they have the authority to bind CRC to the performance of its obligations hereunder. 19. Warranty Against Payment of Consideration. for Agreement. CRC warrants that it has not paid or given, and will not pay or give, to any third person, any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers and attorneys. 20. Release of Public Officials. No member, official, agent, employee, or attorney of the City or Agency shall be personally liable to CRC, or any successor in interest of CRC, in the event of any default or breach by the Agency or for any amount which may become due to CRC or its successors, or on any obligations under the terms of this Agreement. CRC hereby waives and releases any claire it may have personally against the members, officials, agents, employees, consultants, or attorneys of the City and Agency with respect to any default or breach by there or for any amount which may become due to CRC or its successors, or on any obligations under the terms of this Agreement. CRC makes such release with full knowledge of Civil. Code Section 1542, and hereby waives any and all rights thereunder to the extent of this release, if such Section 1542 is applicable California Civil Code Section 1542 provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." 21. ]Headings. The headings to the Sections of this Agreement have been inserted for convenience reference only and shall not to any extent have the effect of .modifying, amending or changing the expressed terns and provisions of this Agreement. 22. Venue. In the event of any litigation under this Agreement, all such actions shall be instituted in the Superior Court of the County of Orange, State of California, or in an appropriate municipal court in the County of Orange, State of California. 23. Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 24. Successors and Assigns. The provisions of this Agreement shall be binding upon, and inure to the benefit of, the Agency and CRC and their successors and assigns as the case or context may require. 25. No Joint Venture. Nothing contained in. this Agreement shall be construed to render the Agency in any way or for any purpose a partner or joint venturer, or in any manner associated in any relationship with CRC, nor shall this Agreement be construed to authorize any party to act as agent for the other. 26. Waiver. The waiver by the Agency or CRC of any breach by the other party of any term, covenant, or condition in this Agreement contained shall not be deemed to be a waiver of such term, covenant, or condition or any subsequent breach of the sarne or any other term, covenant, or 16 DOCSOC/ i 454142v5l022299-0090 condition herein contained. Any party's acceptance of any performance by the other party after the due date of such performance shall not be deemed to be a waiver by any party or any preceding breach by the other party of any term, covenant, or condition of this Agreement, regardless of such party's knowledge of such preceding breach at the time of acceptance of such performance. 27. Counterparts. This Agreement may be executed and acknowledged in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one (1) Agreement, binding on the parties hereto. 28. Memorandum of Agreement. A Memorandum of this Agreement in a form mutually agreeable to the parties shall be recorded in the records of the Orange County Recorder's Office after CRC has acquired a leasehold interest in. the Property (directly or through an Affiliate). Following the termination of the Operating Period or the earlier termination of this Agreement in accordance with the terms thereof, the parties shall cooperate in removal of the Memorandum of Agreement from the records of the Orange County Recorder's Office. 29. Facsimile Signatures. Signatures delivered by facsimile shall be as binding as originals upon the parties so signing and delivering. 30. Business Days. As used in this Agreement, the term "business days" shall mean days other than. Saturdays, Sundays and legal holidays and closures observed by the City and "days" shall mean calendar days. If the time for performance of an obligation under this Agreement falls on other than a business day, the time for performance shall be extended to the next business day. 31. Attorneys' Fees. In the event that suit is brought for the enforcement of this Agreement or as of the result of any alleged breach hereof, the prevailing party in such suit shall be entitled to recover their reasonable attorneys' fees from the losing party, and any judgment or decree rendered in such proceeding shall include an award thereof. Attorneys' fees under this Section shall include attorneys' fees on any appeal and, in addition, a party entitled to attorneys' fees shall be entitled to all other reasonable costs and expenses incurred in connection with such action. In addition to the foregoing award of attorneys' fees to the prevailing party, the prevailing party in any lawsuit shall be entitled to its attorneys' fees incurred in any post judgment proceedings to collect or enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 32. No Third Party Beneficiary. Except for the indemnities in favor of the City set forth in Section 2.3 above, this Agreement is not intended, nor shall it be construed, to create any third party beneficiary rights and any person who is not a party hereto, unless expressly provided otherwise. 33. Captions. The captions of this Agreement are inserted for convenience and are not part of this Agreement. 17 BOC S OC/ 1454142x5/022299-0090 IN WITNESS WHEREOF, the parties hereto have executed this Agreement Regarding Operating Covenant and Restrictive Covenants as of the Bate of Agreement, APPROVED AS TO✓fOR54: Thomas P. Clark -,-Tr, Stradling Yocca Car Agency Special Cou AGENCY: SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic By: 4UAA Laura Freese, Chair CRC: CHRYSLER GROUP REALT COMPANY LLC, a Delaware limited liability c pan M Mark E. Nagel Vice President 18 DOCSOC{ 1454142v5/022299-0090 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY ALTAi OSS LAND -nTLE SURVEY or P tiawrE aty')csu 'AW4 aiasrw .eQUNIYOFnf WA, , VATEOF 1'AG.LFOH;"7i/, A$ �+C'N O, A FARM DEAN MV) IN n, PA(—, t6AfoG T fSF.PkiCE:. a. IWMEOMCE OFI §£ COATY REC.09MR Or 5AiP CCUYiY.iY3Y+G 1VIT9i1N'SK{ '4KOM HALT OFSECi ON Q, TOWND42PS SCttfN, ?iAl�cjC A WEST 0: Sjjr ,, K 5'c?h'A�'73fM1`� BASE 6, 4M1Y,fiIlkAA.yThT[ E F0J F0RNj&. DOCSOC/ 1454142v5/022299-0090 yw1 �g n EXHIBIT B SITE MAP Exhibit B--1 D005OC/ 1454 142v4/022299-0090 TABLE OF CONTENTS i DOCS OCI 1454142v 5/022299-0090 Page 1. Definitions. . .................................................................................................... 1 2. Operating Covenant and Restrictive Covenants........................................................................5 3. Covenant Consideration............................................................................................................ 7 4. Defaults and Remedies.............................................................................................................. 8 5. Representations and Warranties of CRC.. .................................. ................ ......................... 9 6. Representations and Warranties of Agency............................................................................10 7. Disclaimer of Representations and Warranties of Agency ...................................................... 11 8, Additional Covenants of CRC.................................................................................................11 9. Assignment and Assumption........................................................ ..1.3 10. Notices.....................................................................................................................................14 11. Miscellaneous..........................................................................................................................15 12. Brokerage Commissions.......................................................................................................... 15 13. Construction............................................................................................................................15 14. Police Power............................................................................................................................15 15. Force Majeure.—, ......... ..................1.5 16. Interpretation........................................................................................................................... 15 17. Time of the Essence.................................................................................................................15 18. Authority to Execute................................................................................................................16 19. Warranty Against Payment of Consideration for Agreement ................................................. 16 20. Release of Public Officials......................................................................................................16 21. Headings..................................................................................................................................16 22. Venue.......................................................................................................................................16 23. Applicable Law.. ........................... .................................. .... — ..... .......................... 16 24. Successors and Assigns...........................................................................................................16 25. No Joint Venture...................................................................................................................... 16 26. Waiver..................................................................................................................................... 16 27. Counterparts ............................................................................................................................ 17 28. Memorandum of Agreement .................................... ... 17 29, Facsimile Signatures................................................................................................................ 17 30. Business Days.......................................................................................................................... 1.7 i DOCS OCI 1454142v 5/022299-0090 Table of Contents (continued) Page 31. Attorneys' Fees........................................................................................................................17 32. No ,third Party Beneficiary.....................................................................................................17 33. Captions...................................................................................................................................17 w DOCSOC/ 1454142v5/022299-0090 Today's Date: 143MI Lit) Transmittal Routing (Check All That Apply) ❑ City Attorney ❑ City Manager ❑ City Clerk CIP No. (if any): Project Manager's fast Name: Russell Council or CRA Meeting Date (if applicable): _114111 Phone Extension: -6301 APPROVING AUTHORITY: (Check One) ❑ Mayor CRA Chair ❑ City Manager Provide (1) executed original contract for each signing party, including the City. If the agreement is to be recorded - only (1) original will be recorded with certified copies going to other parties. Please provide the mailing address of any party to receive an agreement - unless the mailing address is included within the body of the agreement: Name(s) - - Street_ City St Zip Thomas P. Clark, Jr., Esq. Stradling Yocca Carlson & Rauth Newport Beach CA ` 92660 [ _ 660 Newport Center Drive, Suite 1600 Mark E. Nagel T - — Chrysler Group Realty Company LLC, 1000 Chrysler Drive, CIMS: 485-03-20 Auburn Hills i MI 48326 Sally A. Rutledge, Esq. Howard and Howard Attorneys PLLC c/o Chrysler Group Realty Auburn Hills MI 48326 Company LLC, 1000 Chrysler Drive, CIMS 485-03-20 OTHER INSTRUCTIONS: 32.400 RASEO ABELlANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (9 89) 493-1053 FAX www.sanjuancapistrano. org E7 TO: Stradling Yocca Carlson & Rauth Attw Thomas P. Clark, Jr., Esq. 660 Newport Center Drive, Suite 1600 Newport Beach, CA 92660 DATE: January 25, 2011 FROM: Christy Jakl, Deputy City Clerk (949) 443-6310 MEMBERS OF THE CITY COUNCIL SAM ALLEVATO LAURA FREESE LARRY KRAMER DEREK REEVE JOHN TAYLOR RE: Agreement Regarding Operating Covenant and Restrictive Covenants — Chrysler Group Realty Company LLC Enclosed: (1) Original Agreement Regard ing.Operating Covenant and Restrictive Covenants If you have questions concerning the agreement, please contact Cindy Russell, Chief Financial Officer at (949) 443-6301. Cc: Cindy Russell, Chief Financial Officer Karisa Rojas, Administrative Specialist Mark E. Nagel, Chrysler Group Realty Company LLC Sally A. Rutledge, Esq., Howard and Howard Attorneys LLC San Juan Capistrano: Preserving the Past to Enhance the Future, i.: Printed on 100% rervdee oaoef 32400 PASEO ADEL.tANTO SAN JUAN CAPISTRANO, CA 92675 (949) 493-1171 (949) 493-1053 FAX www sanjuancapistrano. org e Ho Chrysler Group Realty Company LLC Attn: Mark E. Nagel 1000 Chrysler Drive, CIMS: 485-03-20 Auburn Hills, MI 48326 DATE: January 25, 2011 FROM: Christy Jakl, Deputy City Clerk (949) 443-6310 RE: Agreement Regarding Operating Covenant and Restrictive Covenants — Chrysler Group Realty Company LLC Enclosed: (1) Original Agreement Regarding Operating Covenant and Restrictive Covenants If you have questions concerning the agreement, please contact Cindy Russell, Chief Financial Officer at (949) 443-6301. Cc: Cindy Russell, Chief Financial Officer Karisa Rojas, Administrative Specialist Thomas P. Clark, Jr., Esq, Stradling Yocca Carlson & Rauth Sally A. Rutledge, Esq., Howard and Howard Attorneys LLC San Juan Capistrano: Preserving the Past to Enhance the Future 0 Printed on 100% recycled paper MEMBERS OF THE CITY COUNCIL ���: k SAM ALLEVATO t1flailsulp Intoaaoaar£s LAURA FREESE ��sf LARRY KRAMER !7�& DEREK REEVE JoA JOHN TAYLOR Chrysler Group Realty Company LLC Attn: Mark E. Nagel 1000 Chrysler Drive, CIMS: 485-03-20 Auburn Hills, MI 48326 DATE: January 25, 2011 FROM: Christy Jakl, Deputy City Clerk (949) 443-6310 RE: Agreement Regarding Operating Covenant and Restrictive Covenants — Chrysler Group Realty Company LLC Enclosed: (1) Original Agreement Regarding Operating Covenant and Restrictive Covenants If you have questions concerning the agreement, please contact Cindy Russell, Chief Financial Officer at (949) 443-6301. Cc: Cindy Russell, Chief Financial Officer Karisa Rojas, Administrative Specialist Thomas P. Clark, Jr., Esq, Stradling Yocca Carlson & Rauth Sally A. Rutledge, Esq., Howard and Howard Attorneys LLC San Juan Capistrano: Preserving the Past to Enhance the Future 0 Printed on 100% recycled paper 32400 PASEO ADIELANTO SAN JUAN CAPISTRANO, CA 92,675 (949)493.1 171 (949) 493-1053 FAX wwwsanjuancapistrano. org TRANSMITTAL TO: s MEMBERS OF THE CITY COUNCIL SAM ALLEVATO 16Ix8PxxxTix LAURA FREESE Enaxrl4x�x ���1 LARRY KRAMER 1776 DEREK REEVE • ® JOHN TAYLOR Howard and Howard Attorneys LLC Attn: Sally A. Rutledge, Esq. 1000 Chrysler Drive, CIMS: 485-03-20 Auburn Hills, MI 48326 DATE: January 25, 2011 FROM: Christy Jakl, Deputy City Clerk (949) 443-6310 RE: Agreement Regarding Operating Covenant and Restrictive Covenants --- Chrysler Group Realty Company LLC Enclosed: (1) Original Agreement Regarding Operating Covenant and Restrictive Covenants If you have questions concerning the agreement, please contact Cindy Russell, Chief Financial Officer at (949) 443-6301. Cc: Cindy Russell, Chief Financial Officer Karisa Rojas, Administrative Specialist Thomas P. Clark, Jr., Esq, Stradling Yocca Carlson & Rauth Mark E. Nagel, Chrysler Group Realty Company LLC San Juan Capistrano: Preserving the Past to Enhance the Future 40 Printed on 100% reWdc ?d paper