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13-0305_TUTTLE- CLICK_Reinstate of Agr for Defer of Improv 1st AmdN Recorded in Official Records, Orange County Hu h ItIIIINIIIIII{Clek-Recorder IIIg{IIjjlj� 1111111111 II� IIIIIIIIIII1III 1II27.00 $ R o a aI 2013000245183 2:02 pm 04124113 47 422 Al2 F13 7 0.00 0.00 0.00 0.00 18-00 0.00 0.00 0.00 SPACE ABOVE THIS LINE FOR RECORDER'S USE RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: u CITY OF SAN JUAN CAPISTRANO Development Services Department l 32400 Paseo Adelanto ) p San Juan Capistrano, CA 92675 FIRST AMENDMENT TO AND REINSTATEMENT OF AGREEMENT FOR DEFERRAL OF IMPROVEMENTS Architectural Control (AC) 10-039 Tuttle -Click's Capistrano Ford between THE CITY OF SAN JUAN CAPISTRANO a California municipal corporation and TUTTLE-CLICK'S CAPISTRANO FORD, INC., a California corporation, and TUTTLE-CLICK'S CAPISTRANO PROPERTY, INC., a California corporation Agreement for Deferral of Improve ments Tuttle -Click's Capistrano Ford pace 2 of 5 I. PARTIES AND DATE. This First Amendment to the Agreement for the Deferral of Improvements ("Agreement") dated this 5t' day of March, 2013, is by and between the City of San Juan Capistrano, a California municipal corporation ("City"), on the one hand, and Tuttle -Click's Capistrano Ford, Inc., a California corporation and Tuttle -Click's Capistrano Property, Inc., a California corporation (collectively referred to herein as "Developer"), on the other. City and Developer are hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties." II. RECITALS. A. City and Developer entered into an Agreement for the Deferral of Improvements on November 30, 2012 (Instrument No. 2012000739983, recorded on 11130112). The Developer has requested an amendment to extend the Term per Section IV (2)• B. Developer is the owner of the real property located at 33301 Camino Capistrano, San Juan Capistrano, Orange County, California comprised of 3.9 acres and more precisely referred to as Assessor Parcel Number (APN) 668-121-14 and having Legal Description: Book 48, Page 10, and Parcel 1 (the "Property'). C. On November 23, 2011, the Development Services Director approved an Administrative Approval for Architectural Control (AC) 10-031 (hereinafter the "Approval"). The Approval relates to the Property. The Approval became effective on December 8, 2011. D. The Approval was issued for the remodeling of the former Dodge dealership building and constructing site improvements to accommodate the new Tuttle - Click's Capistrano Ford dealership (hereinafter the °Pro ect"). The Project includes the demolition of 1,611 s.f. and the addition of 2,543 s.f. to the existing building, resulting in a net increase of 932 s.f. The project also includes parking improvements and enhancement to the landscape areas. E. Developer has constructed certain improvements on the Project site in accordance with the Approval but has not yet included all required improvements, but has not completed all of the improvements required by the Approval. F. Developer desires to obtain Temporary Certificates of Occupancy (CO) in order to allow the use of the sales office and auto repair service area and occupancy of all other buildings on the Project. G. Developer desires to defer the installation of certain required improvements and City is willing to agree to such a deferral in strict accordance with the terms contained herein. Agreement for Deferral of Improvements Tuttle -Click's Capistrano Ford Daae 3 of 5 III. TERM OF AGREEMENT. This Agreement shall be effective upon the latter of either the date it is fully executed by all the Parties or the Developer has deposited with the City the Cash Deposit (defined herein below). This Agreement shall terminate only upon the completion of all the project improvements required by the Approval and issuance of a Final Certificate of Occupancy for each building on the Property. IV. TERMS. AGREEMENT BINDING ON SUCCESSOR IN INTEREST. This Agreement is an instrument affecting the title to or possession of the Property. During the term of this Agreement, Developer agrees that it shall not submit and City shall not be required to accept any application to subdivide the Property. Upon sale of the Property, the terms of this Agreement shall be deemed to apply to and bind any subsequent owner of all of the obligations accepted on Developer by this Agreement. 2. INCOMPLETE IMPROVEMENTS TO BE DEFERED. On or before June 1, 2013 (the "Completion Date"), each and every one of the following improvements shown on the approved site plan and referenced in the Approval shall be completed to the satisfaction of the City: A. Installation of all Landscape as shown on the approved plans dated November 23, 2011. B. Installation of all Irrigation as shown on the approved plans dated November 23, 2011. C. Installation of all Parking Lot Striping as shown on the approved plans dated November 23, 2011. D. Completion of all Grading and Drainage Improvements. E. Completion of all Final Building Exterior Materials and Colors. F. Installation of all rain gutters and downspouts on all buildings. G. Installation of all guard rails, hand rails, and accessibility. H. Remove all temporary power poles and cables. Installation of a masonry retaining wall between the main sales building and the service building located on the south side of the main building. 3. SECURITY. Developer has made a cash deposit (herein "Cash Deposit') with City in the amount of One -Hundred and Fifty -Thousand Dollars and no cents Agreement for Deferral of Improvements Tuttle -Click's Capistrano Ford pa-ge 4 of 5 ($150,000) on November 30, 2012 as security to ensure completion of all improvements as specified in this Agreement. Upon the completion of all improvements to the satisfaction of the City and issuance of a Final Certificate of Occupancy for all buildings subject to the Approval, City shall, within five (5) days of that issuance, release the Cash Deposit less the cost to the City of completing the improvements. 4. DEFAULT BY DEVELOPER. If Developer does not complete the required improvements by the Completion Date, City through its Development Services Director, may make written demand upon Developer to immediately complete the improvements and set forth a final cure date. If the required work is not substantially commenced within five (5) days of such demand, or if work commences but it is not thereafter diligently prosecuted to a completion acceptable to City by the cure date specified in the demand, City may, but is not required to, then complete all remaining work in the manner it ,in its sole and absolute discretion, deems appropriate including but not limited to, use of City's forces, purchasing of materials, and/.or hiring of contractors,. All such work or remedial activity shall be at the sole and exclusive expense and obligation of Developer without the necessity of giving any further notice to Developer. City's right to take such actions shall in no way be limited by the fact that Developer may have constructed any of the required improvements at the time of City's demand for performance. In the event City elects to complete or arrange for completion of the remaining work and improvements, City may require all work by Developer or its surety to cease in order to permit adequate coordination by City. City may pay for any costs associated with completing the improvements from the Cash Deposit. Developer waives any right to contest the reasonableness of the necessity or amount of any such payments and agrees City's actions shall be deemed reasonable mitigation of damages. City may also reimburse itself the standard hourly rate of staff time spent on causing completion of the required improvements as well attorney's fees and costs. 5. EXPIRATION OF TEMPORARY CERTIFICATE OF OCCUPANCY. In addition to any other remedy provided herein or provided by law, and not constituting an election of remedies, Developer expressly acknowledges and agrees that (i) the issuance of a Temporary Certificate of Occupancy is an accommodation by the City to allow the deferral permitted by the this Agreement, (ii) the Temporary Certificate of Occupancy shall expire automatically on the Completion Date, and (iii) all use and occupancy of the Property shall cease and be prohibited if the required improvements are not completed; (iv) City may revoke the Temporary Conditional Certificate of Occupancy for the model building, and/or withhold issuance of any future certificate of occupancy, until the default is remedied to the satisfaction of City; and (iv) continued use and occupancy of the Property in any way after the Completion Date without a final Certificate of Occupancy may be prosecuted as a criminal violation and/or subject to a civil action seeking an temporary restraining order, preliminary injunction and permanent injunction without necessity of showing irreparable harm. Agreement for Deferral of Improvements Tuttle -Click's Capistrano Ford papa 5 of 5 6. INDEMNIFICATION. Developer agrees to protect, defend and hold harmless City, its elected and appointed officials and employees from any and all claims, liabilities, expenses or damages of any nature, including attorneys' fees, arising out of or in connection with this Agreement, including claims by third parties challenging this Agreement or asserting any claims against City relating to this Agreement or relating to the work, operation or activities of Developer, its agents, employees and subcontractors in carrying out its obligations under this Agreement or the Approval. QUALITY OF WORK. All improvements as described in the Agreement shall be constructed and installed pursuant to City's satisfaction. The construction plans and specifications for the improvements shall be prepared in accordance with all applicable federal, state and local laws, ordinances, regulations and other requirements. In addition, the improvements shall be completed in accordance with all maps, plans and specifications on file with City, as well as all applicable federal, state and local laws, ordinances, regulations and other requirements. It is understood and agreed that all work and improvements done pursuant to this Agreement shall conform to the standards applicable at the time work is actually commenced. THE CITY OF SAN J AN CAPISTRANO By: Grant Taylor Development Services Director Date: TUTTLE-CLICK'S CAPISTRANO FORD, INC. Date: ) . 'I -C) . 13 I Ed Phiar Date: 3 t• () TUTTLE-CLICK'S PISTRANO PROPERTY, INC. Chris Cotter Date: Its: 4 - By: Ed Yas Date: 3 1 N Its: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of CML CODE 51leg On Mai Lh U uG before me, I<rIS11Y1 TWIle y I NOtAt'y Yu10`i1C Dem /� �t7 N.re iw.n Ne,w.mmmarw on personally appeared 1 Numeier a151Bnege) who proved to me on the basis of satisfactory evidence to be the persoro) whose nameklfoare subscribed to the within instrument and acknowledged KRISTIN JANE KELLEa to me that &she/they executed the same in < Commission N 1923330 (her/their authorized CapaCity(ie�, and that by Notary Public. California s/her/their signatureo) on the instrument the orange countyperson(p) or the entity upon behalf of which the M Comm. E fres Feb 21.2015 t person(d) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: n �- Me Nomry SeelFMvx Sgrewre of Na ryPllc OPTIONAL Though the information below Is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document i S1��1�(�•� (7p b�, Ytt 7k�➢ t Document Date: Aaa. c& LU1Z0�� Number of Pages: /_ Signers) Other Than Named Above: tt�c Capacity(les) /Claimed by Signer(s)n _ ` Signer's Name:I )rtst ,jr l.� i� Signer's Name: �Qy' � ( X Corporate officer—Title(s): xComorate Officer—Title(s): Gi ❑ Individual Individual ❑ Partner — S Limited I IGeneralroe onnumh Hera 'Partner— Limited I :General 7_ -Attorney in Fact = Attorney in Fact Trustee - Trustee _: Guardian or Conservator LJ Guardian or Conservator IJ Other: Other: Signer is Representing P11rk AAD Lem. _ I,om tl59W PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT State of California ) County of Orange ) ss. City of San Juan Capistrano ) (Gov't Code 40814 & Civil Code 118 1) On March 21, 2013, before me, Christy Jakl, Deputy City Clerk, personally appeared Grant Taylor, Development Services Director, who proved to me on the basis of satisfactory evidence to the be person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/there signature on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. (SEAL) Capacity Claimed by Signers Development Services Director Title Signer is Representing City of San Juan Capistrano WITNESS my hand and official seal. Christy Jakl, OPTIONAL Description of Attached Document Title or Type of Document First Amendment to and Reinstatement of Agreement for Deferral of Improvements (AC 10-031) — Tuttle -Click's Capistrano Ford Number of Pages: 7