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Resolution Number 93-1-19-3J 111 RESOLUTION NO. 93-1-19-3 DEVELOPMENT AGREEMENT FOR THE A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING THE DISPOSITION AND DEVELOPMENT AGREEMENT FOR CERTAIN PROPERTY WITHIN THE SAN JUAN CAPISTRANO CENTRAL REDEVELOPMENT PROJECT AREA TO STEPHEN A. NORDECK (SWALLOWS INN) WHEREAS, the Community Redevelopment Agency of the City of San Juan Capistrano (the "Agency") is engaged in activities necessary to carry out and implement the Redevelopment Plan for the San Juan Capistrano Central Redevelopment Project Area; and, WHEREAS, in order to carry out and implement such Redevelopment Plan, the Agency proposes to enter into the Disposition and Development Agreement (the "Agreement"), made a part hereof by reference, with Stephen A. Nordeck (the "Developer") for the sale of the premises (the "Premises") in the San Juan Capistrano Central Redevelopment Project Area, described in the Agreement as encompassing approximately 15,320 square feet and including one approximately 3,350 -square -foot building commonly known as the Swallows Inn/Paisley Penguin with a mailing address of 31782-31786 Camino Capistrano; and, WHEREAS, the Developer has submitted to the Agency copies of said proposed Agreement in a form desired by the Participant; and, WHEREAS, pursuant to the California Community Redevelopment Law (California Health and Safety Code, Section 33000 et seq.), the Agency and this City Council held a joint public hearing on the Agreement and the proposed sale of the Premises, having duly published notice of such public hearing and made copies of the proposed Agreement available for public inspection and comment; and, WHEREAS, the Agency has duly considered all terms and conditions of the proposed Agreement and believes that the redevelopment of and sale of the Premises thereof is in the best interest of the City of San Juan Capistrano and the health, safety, and welfare of its residents, and in accord with the public purposes and provisions of applicable State and local law and requirements; and, WHEREAS, the proposed agreement was determined by the Planning Director to be Categorically Exempt pursuant to California Environmental Quality Act Guidelines (CEQA) , Class 12, on July 30, 1992. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of San Juan Capistrano as follows: 1. The City Council has received and heard all oral and written objections to the proposed Agreement and to the proposed sale of the Premises and -1- 112 to other matters pertaining to this transaction, and that all such oral and written objections are hereby overruled. 2. The City Council hereby finds and determines that the consideration to be paid by the Developer for the sale of the premises is in accordance with the covenants and conditions governing such sale. The City Council hereby further finds and determines that all consideration to be paid under the Agreement is in an amount necessary to effectuate the purposes of the Redevelopment Plan for the San Juan Capistrano Central Redevelopment Project. 3. The Categorical Exemption issued on July 30, 1992, adequately considered all environmental impacts potentially caused by the proposed sale of Premises as there are no substantial changes in the proposed sale which would alter the determination that the project is exempt under CEQA Guidelines, Class 12. 4. The sale of the Premises and the proposed Agreement, which establish the terms and conditions therefor, are hereby approved. 5. The City Council hereby authorizes the City Clerk to deliver a copy of this resolution to the Executive Director of the Agency. A copy of the Agreement, when executed by the Agency, shall be placed on file in the Office of the City Clerk. PASSED, APPROVED, AND ADOPTED this ofT,n„ar)4 , 1993. ATTEST: 19th day i i Map, �/✓�Lai I WK41 -2- 1.13 ' STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO ) 1, CHERYL JOHNSON, City Clerk of the City of San Juan Capistrano, California, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Resolution No. 93-1-19-3 adopted by the City Council of the City of San Juan Capistrano, California, at a regular meeting thereof held on the 19th day Of .January , 1993, by the following vote: AYES: Council Members Nash, Hausdorfer, Campbell and Vasquez NOES: None ABSTAIN: Mayor Jones ABSENT: None (SEAL) l /% (�it [/� i/ %�J�� CHERYL JO SO , CITY CLERK -3- 114 DISPOSITION AND DEVELOPMENT AGREEMENT by and between the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, Agency, and STEPHEN A. NORDECK Developer. 115 TABLE OF CONTENTS [§100] SUBJECT OF AGREEMENT ................. 1 A. [§101] Purpose of the Agreement ........ 1 B. [§102] The Redevelopment Plan .......... 1 C. [§103] The Redevelopment Project Area .. 1 D. [§104] The Property .................... 1 E. [§105] Parties to the Agreement ........ 2 1. [§106] The Agency ................. 2 2. [§107] The Developer .............. 2 F. [§108] Prohibition Against Change in Ownership, Management and Control of Developer ........ 2 II. [§200] DISPOSITION OF THE PROPERTY .......... 3 A. [§201] Sale and Purchase of the Property ........................ 3 B. [§202] Escrow .......................... 4 C. [§203] Conveyance of Title and Delivery of Possession .......... 7 D. [§204] Form of Grant Deed .............. 8 E. [§205] Condition of Title .............. 8 F. [§206] Time for and Place of Delivery ' of Grant Deed ................... 9 G. [§207) Payment of the Purchase Price and Recordation of the Grant Deed 9 H. [§208] Title Insurance ................. 9 I. [§209] Taxes and Assessments ........... 10 J. [§210] Occupants of the Property ....... 10 K. [§211] Zoning of the Property .......... 10 L. [§212] Condition of the Property ....... 11 1. [§213] Suitability of the Property .. 11 2. [§214] "As Is" Conveyance ........... 12 M. [§215] Access to and Entry by the Developer upon the Property ..... 13 N. [§216] Representations and Warranties ofAgency ....................... 13 0. [§217] Representations and Warranties of Developer .................... 14 III. [§300] DEVELOPMENT OF THE PROPERTY .......... 16 A. (6301] Scope of Development ............ 16 B. [§302] Cost of Construction ............ 17 C. [§303] City and Other Governmental Agency Permits .................. 17 D. [§304] Rights of Access ................ 17 116 E. [§305] Local, State and Federal Laws ... 17 F. [§306] Nondiscrimination During Construction .................... 17 G. [§307] Certificate of Completion ....... 17 IV. [§400] USE OF THE PROPERTY .................. 18 A. [§401] Uses ............................ 18 B. [§402] Obligation to Refrain from Discrimination .................. 19 C. [§403] Form of Nondiscrimination and Nonsegregation Clauses .......... 19 D. [§404] Effect and Duration of Covenants ....................... 20 V. [§500] DEFAULTS, REMEDIES AND TERMINATION ... 21 A. [§501] Defaults - General .............. 21 B. [§502] Legal Actions ................... 21 1. [§503] Institution of Legal Actions 21 2. [§504] Applicable Law ............. 22 3. [§505] Acceptance of Service of Process .................... 22 C. [§506] Rights and Remedies are Cumulative ...................... 22 D. [§507] Damages ......................... 22 E. [§508] Specific Performance ............ 22 F. [§509] Remedies and Rights of Termination ..................... 23 1. [§510] Termination of Developer ... 23 2. [§511] Termination by Agency .... 23 G. [§512] Rights and Remedies Subsequent to the Issuance of a Certificate of 25 Completion ...................... VI. [§600] GENERAL PROVISIONS ................... 25 A. [§601] Notices, Demands and Communications Between the Parties ......................... 25 B. [§602] Conflicts of Interest ........... 25 C. [§603] Warranty against Payment of Consideration for Agreement ..... 26 D. [§604] Nonliability of Agency Officials and Employees ......... 26 11'7 E. [§605] Enforced Delay: Extension of Times of Performance 26 F. [§606] Approval by the Agency and :a :::::::: ' the Developer 26 G. [§607] Plans and Data .................. 27 VII. [§700] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS ........................... 27 VIII. [§800] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY ............................ 27 ATTACHMENTS Attachment No. 1 Property Map Attachment No. 2 Legal Description Attachment No. 3 Scope of Development Attachment No. 4 Grant Deed Attachment No. 5 Irrevocable Offer of Dedication Attachment No. 6 Grant of Easement for Public Parking Attachment No. 7 Understanding Regarding Future Parking Attachment No. 8 Certificate of Completion i DISPOSITION AND DEVELOPMENT AGREEMENT THIS AGREEMENT is entered into by and between the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and STEPHEN A. NORDECK, an individual ("Developer"). The Agency and the Developer agree as follows: [§100] SUBJECT OF AGREEMENT A. [§101] Purpose of the Agreement 1. The purpose of this Agreement is to effectuate the Redevelopment Plan for the Central Redevelopment Project (the "Redevelopment Project") by providing for the disposition and development of property owned by the Agency within the Redevelopment Project area. The Agency's disposition of the Property is authorized by Article 11, Sections 33430 et seg. of the California Health and Safety Code and is in the vital and best interest of the City of San Juan Capistrano and the health, safety, and welfare of its residents, necessary for purposes of redevelopment within the Project Area, and in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements. B. [§ 1021 The Redevelopment Plan This Agreement is subject to the provisions of the Redevelopment Plan for the Redevelopment Project, which was approved and adopted by the City Council of the City of San Juan Capistrano by Ordinance No. 470, and amended by Ordinance Nos. 509, 547 and 582; said ordinances and the Redevelopment Plan (the "Redevelopment Plan") are incorporated herein by reference and made a part hereof as though fully set forth herein. C. [§ 1031 The Redevelopment Project Area The San Juan Capistrano Project Area (the "Project Area") is located in the City of San Juan Capistrano, California, (the "City"). The exact boundaries of the Project Area are specifically and legally described in the Redevelopment Plan. D. [§ 104] The Property The Agency holds fee title to certain real property in the City (Assessor Parcel #124-160-21) located at 31786 Camino Capistrano (the "Property"). The Property is in the Project Area and is shown on the "Property Map" attached hereto as Attachment No. 1 and described in the "Legal Description of the Property" attached hereto as Attachment No. 2, both Attachments incorporated herein by reference. The Property encompasses approximately 15,320 square feet and includes an existing two -unit retail building of approximately 3,350 square feet. E. [§ 105] Parties to the Agreement 1. [§ 106] 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 32400 Paseo Adelanto, San Juan Capistrano; California, 92675, Attention: Executive Director. "Agency" as used in this Agreement includes the San Juan Capistrano Community Redevelopment Agency and any assignee of or successor to its rights, powers and responsibilities. 2. [§ 1071 The Developer The Developer is Stephen A. Nordeck, an individual. The ' principal office of the Developer for purposes of this Agreement is located at 26 Via Barcaza, Trabuco Canyon, California, 92679. n Wherever the term "Developer" is used herein, such term shall include any permitted nominee, assignee or successor in interest as herein provided. F. [§108] Prohibition against Change in Ownership. Management and Control of Developer The Developer represents and agrees that his purchase of the Property and his other undertakings pursuant to this Agreement are, and will be used, for the purpose of redevelopment of the Property and not for speculation in land holding. The Developer further recognizes that, in view of: (a) the importance of the redevelopment of the Property to the general welfare of the community; (b) the public aids that have been made available by law and by the government for the purpose of making such redevelopment possible; and 01/13/93 3439Q/2299/00 -2- 120 (c) the fact that a change in ownership or control of the Developer or of a substantial part thereof, or any other act or transaction involving or resulting in a significant change in ownership or control of the Developer or the degree thereof, is for practical purposes a transfer or disposition of the property then owned by the Developer, the qualifications and identity of the Developer are of particular concern to the community and the Agency. The Developer further recognizes that it is because of such qualifications and identity that the Agency is entering into this Agreement with the Developer. 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. The Developer shall not assign all or any part of this Agreement without the prior written approval of the Agency. The Agency shall not unreasonably withhold its approval of an assignment to an entity where the Developer owns at least a fifty-one percent (51%) interest or is the managing general partner and owns at least twenty-five percent (25%), provided that: (1) the assignee entity shall expressly assume the obligations of the Developer pursuant to this Agreement in writing satisfactory to the Agency; (2) the original Developer shall remain fully responsbile for the performance and liable —" for the obligations of the Developer pursuant to this Agreement; and (3) the assignee is financially capable of and experienced with performing the duties and discharging the obligations it is assuming. The restrictions of this Section 108 shall terminate upon issuance by the Agency of a Certificate of Completion for the Property as described in Section 307 of this Agreement. II. [§200) DISPOSITION OF THE PROPERTY A. [§201] Sale and Purchase of the Property 1. Purchase and Sale In accordance with and subject to all the terms, covenants and conditions of this Agreement, the Agency agrees to sell the Property to the Developer and the Developer agrees to purchase the Property from the Agency. 2. Purchase Price The Purchase Price payable for the Property and the terms of the purchase by the Developer shall be Four 01/13/93 3439Q/2299/00 -3- 121 Hundred Fifty Thousand Dollars ($450,000.00) CASH (the ' "Purchase Price"). 3. Developer Good Faith Deposit; Liquidated Damages Within forty-eight (48) hours of the opening of escrow by the Agency as provided in Section 202 of this Agreement, the Developer shall deliver to the Agency cash or a cashier's or certified check in the amount of Twenty -Five Thousand Dollars ($25,000.00). The above described funds delivered to the Agency are herein called the "Good Faith Deposit." Upon the Developer's delivery of the Good Faith Deposit to the Agency, the Agency shall deposit the Good Faith Deposit in a federally insured financial institution and the parties agree that the interest rate on such deposit shall be the prevailing rate paid by financial institutions for regular short term passbook accounts. Upon the occurrence of the termination of this Agreement pursuant to Section 510 hereof, the Good Faith Deposit shall be promptly returned to the Developer. Upon the termination of this Agreement pursuant to Section 511 hereof, the Good Faith Deposit shall be retained by the Agency as liquidated damages, as further provided in Section 511 hereof. Regardless of whether the Good Faith Deposit is retained by the Agency as either liquidated damages ' or as a portion of the Purchase Price, or is returned to the Developer pursuant to Section 510 of this Agreement, the parties agree that all interest accrued on the Good Faith Deposit while on deposit shall be paid to the Agency. B. [§202] Escrow 11 Following the execution of this Agreement by the Agency, the Agency agrees to open an escrow for conveyance of the Property with First American Title Insurance Company, or such other escrow agent as may be agreed upon by the parties (the "Escrow Agent"). The escrow shall be opened and run concurrently with the Developer's opening of a separate escrow for the Developer's acquisition of the "Swallows Inn" business operation and name. Sections 104 through 107 and 200 through 209, inclusive, of this Agreement shall constitute the joint escrow instructions of the Agency and the Developer with respect to the sale and purchase of the Property, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of escrow. The Agency and the Developer shall provide such additional escrow instructions as shall be necessary and consistent with this Agreement. The Escrow Agent is hereby empowered to act under this Agreement and upon indicating its 01/13/93 3439Q/2299/00 -4- 122 acceptance of the applicable provisions of,this Agreement in writing, delivered to the Agency and to the Developer within five (5) days after opening of the escrow, shall carry out its duties as Escrow Agent hereunder. The Agency shall timely and properly execute, acknowledge and deliver a Grant Deed for the conveyance of title to the Property (or other transferring document) in substantially the form established in Section 204 of this Agreement and attached hereto as Attachment No. 4 and incorporated herein by reference. Upon delivery to the Escrow Agent by the Agency of the Grant Deed (Attachment No. 4) for the Property pursuant to Section 206 of this Agreement, the Escrow Agent shall record such deed when title thereto can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Escrow Agent shall buy, affix, and cancel any transfer stamps required by applicable law, and pay any transfer tax required by law. Any insurance policies governing the Property are not to be transferred. The Developer shall pay in escrow to the Escrow Agent the following fees, charges and costs promptly after the Escrow Agent has notified the Developer of the amount of such fees, charges, and costs, but not earlier than ten (10) days prior to the scheduled date for the conveyance of the Property: 1. The portion of the premium for the title insurance policies to be paid by the Developer as set forth in Section 208 of this Agreement; 2. Any transfer tax and any State, County or City documentary stamps. The Developer shall deposit the Purchase Price for the Property (less the Good Faith Deposit previously deposited with the Agency) and any other amounts required by the provisions of this Agreement with the Escrow Agent in accordance with the provisions of Section 207 of this Agreement. The Escrow Agent shall charge the following fees, charges, and costs to the Agency and deduct the same from the Purchase Price provided that prior to the close of escrow, the Agency has approved a pro forma closing statement setting forth the amount of such fees, charges and costs: 1. Costs necessary to place title to the Property in the condition required by the provisions of this Agreement; 2. The escrow fee; 01/13/93 3439Q/2299/00 -5- 123 3. Cost of drawing the deed; ' 4. Recording fees; S. Notary fees; 6. The portion of the premium for the title insurance policy to be paid by the Agency as set forth in Section 208 of this Agreement; 7. Ad valorem taxes, if any, upon the Property for any time prior to conveyance of title; The Agency shall furnish, at its expense, a termite report for the Property within thirty (30) days of the date of this Agreement. If the termite report determines that such work is necessary, the Agency will, at its cost and expense, cause the building upon the Property to be treated by a licensed pest control company for the elimination of termite infestation. The Developer shall be solely responsible for all other necessary or recommended repairs or corrections listed in the termite report. The Escrow Agent is authorized to: 1. Pay, and charge the Agency and the Developer respectively, for any fees, charges and costs payable under Section 202 of this Agreement. Before such payments 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 Grant Deed (Attachment No. 4) and other documents to the parties entitled thereto when the conditions of this escrow have been fulfilled by the Agency and the Developer. Such funds shall not be disbursed by the Escrow Agent unless and until it has recorded the Grant Deed (Attachment No. 4) to the Property and is prepared to deliver to the Developer a title insurance policy insuring and conforming to the requirements of Section 208 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 the escrow instructions portion of this Agreement (Sections 104-107 and 200-209, inclusive. 4. Report all information required pursuant to Internal Revenue Service Code Section 6045(a) regarding the disposition of the Property by the Agency to the Developer hereunder, and provide copies of all such reports to all parties hereto. 01/13/93 3439Q/2299/00 -6- 124 All funds received in this escrow shall be deposited by the Escrow Agent in a general escrow account with any state or — national bank doing business in the State of California and reasonably approved by the Developer and the Agency, and may be combined in such with other escrow funds of the Escrow Agent. If this escrow is not in condition to close on or before the time for conveyance established in Section 203 of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, demand the return of its money, papers, or documents from the Escrow Agent. No demand for return shall be recognized until ten (10) days after the Escrow Agent (or the party making such demand) shall have mailed copies of such demand to the other party at the address of its principal place of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party within the 10 -day period, in which event the Escrow Agent is authorized to hold all money, papers and documents until instructed by mutual agreement of the parties or, upon failure thereof, by a court of competent jurisdiction. If no such demands are made, the escrow shall be closed as soon as possible. If objections are raised as above provided for, the Escrow Agent shall not be obligated to return any such money, papers or documents except upon the written instructions of _ both the Agency and the Developer, or until the party entitled thereto has been determined by a final decision of a court of competent jurisdiction. If no such objections are made within said 10 -day period, the Escrow Agent shall immediately return the demanded money, papers or documents. Any amendment to these escrow instructions shall be in writing and signed by both the Agency and the Developer. At 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 or the Developer shall be directed to the addresses and in the manner established in Section 601 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 Sections 104 through 107 and Sections 200 through 209, inclusive, of this Agreement. The Agency shall not be liable for any real estate commissions or brokerage fees which may arise herefrom. The Agency represents that it has engaged no broker, agent, or 01/13/93 3439Q/2299/00 -7- 125 finder in connection with this transaction, and the Developer agrees to hold the Agency harmless from any claim by any broker, agent or finder retained by the Developer. C. [§203] Conveyance of Title and Delivery of Possession Subject to any mutually agreed upon extension of time, conveyance to the Developer of title to the Property in accordance with the provisions of Section 205 of this Agreement shall occur within sixty (60) days of the date of the opening of this escrow and, to the extent reasonably possible, concurrent with the close of the Developer's escrow for acquisition of the "Swallows Inn" business operation and name, or such later date as may be authorized by the Agency and the Developer and communicated in writing to the Escrow Agent. The Developer shall provide the Escrow Agent with immediate notice of the completion of said acquisition. Possession of the Property shall be delivered to the Developer concurrently with the conveyance of title. The Developer shall accept title to and possession of the Property on or before the date established for conveyance in this Section 203. D. [§204] Form of Grant Deed ' The Agency shall convey to the Developer title to the Property in the condition provided in Section 205 of this Agreement by Grant Deed (or other conveyancing instrument) substantially in the form of -Attachment No. 4 and consistent with the provisions of Section 205 of this Agreement. The Grant Deed (Attachment No. 4) shall contain covenants necessary or desirable to carry out this Agreement. The Agency shall have the right, at its sole discretion, to include within the Grant Deed (Attachment No. 4) an express reservation of easement in such portion of the Property as may be necessary for (1) the realignment of Ortega Highway, and (2) the improvement of public sidewalks along the western edge of the Property, and the Developer hereby consents and approves of such reservation in the Grant Deed (Attachment No. 4). E. [§205] Condition of Title The Agency shall convey to the Developer fee simple title to the Property free and clear of all liens, encumbrances, assessments, easements, leases and taxes, except for (1) covenants and easements of record at the time of execution of this Agreement which the Developer has approved; (2) the Redevelopment Plan; (3) those tenancies which are set forth in Section 210 of this Agreement; and (4) such other encumbrances 01/13/93 3439Q/2299/00 -8- 126 to which the Developer may consent and which are otherwise consistent with this Agreement. Notwithstanding any other provision of this Agreement to the contrary, the Agency may obtain possession of part or all of the Property by means of an order of immediate possession from a court exercising eminent domain jurisdiction or similar right. F. [§206] Time for and Place of Delivery of Grant Deed Subject to any mutually agreed upon extension of time, the Agency shall deposit the Grant Deed (Attachment No. 4) for the Property with the Escrow Agent on or before the date established for the conveyance of the Property in Section 203 of this Agreement. G. [§207] Payment of the Purchase Price and Recordation of the Grant Deed The Developer shall promptly deposit the Purchase Price (less the Good Faith Deposit previously deposited with the Agency) with the Escrow Agent no later than one (1) day prior to the date for conveyance, provided that the Escrow Agent shall have notified the Developer in writing that the Grant Deed (Attachment No. 4), properly executed and acknowledged by the Agency, has been delivered to the Escrow Agent and that title is in the condition to be conveyed in conformity with the provisions of Section 205 of this Agreement. The Escrow Agent shall deliver the Purchase Price (less the Good Faith Deposit previously deposited with the Agency) to the Agency in accordance with Section 203 at such time as the Escrow Agent is prepared to deliver to the Developer a title insurance policy in conformity with Section 208 of this Agreement, and shall promptly file the Grant Deed for recordation among the land records in the Office of the County Recorder for Orange County. H. [§208) Title Insurance Concurrently with recordation of the Grant Deed, First American Title Insurance Company or another insurance company acceptable to the parties (the "Title Insurance Co.") shall provide and deliver to the Developer a title insurance policy (which at the Developer's option may be an ALTA owner's policy) issued by the Title Insurance Co. insuring that title to the Property is vested in the Developer in the condition required by Section 205 of this Agreement. The Title Insurance Co. shall provide the title insurance policy, and the title insurance policy shall be in the amount of the Purchase Price for the Property or in such greater amount as the Developer may specify as hereinafter provided. 01/13/93 3439Q/2299/00 -9- 127 The Agency shall pay only for that pqrtion of the title ' insurance premium attributable to a CLTA or'ALTA standard form owner's policy of title insurance in the amount of the Purchase Price for the Property. The Developer shall pay for all additional premiums, including those for any extended coverage or special endorsements which it requests. I. [§209] Taxes and Assessments All ad valorem taxes and assessments levied or imposed for any period commencing after conveyance of title to or delivery of possession of the Property to the Developer and taxes upon this Agreement or any rights hereunder, shall be borne solely by the Developer. J. [§210] Occupants of the Property The parties agree that title to the Property shall be conveyed to the Developer subject only to any possession or right of possession of the two current tenants of the Property: (1) Tacy Lee, the owner of the "Swallows Inn" business, and (2) Alan Brown, doing business as the "Paisley Penguin" business. The Developer is presently in the process of acquiring the "Swallows Inn" business operation and name from its current owner. ' On December 1, 1992, the Agency served upon Alan Brown a "Three Day Notice to Pay Rent or Quit" which stated the Agency's election to declare the forfeiture of the rental agreement if past due rents were not paid. On December 17, 1992, the Agency filed in the South Judicial District of the Municipal Court of Orange County and served upon Alan Brown, a Complaint for Unlawful Detainer; Alan Brown did not answer this complaint and, on January 12, 1993, a default judgment for possession of that portion of the Property occupied by Paisley Penguin was entered by the court and a writ of possession of real property was issued by the court. In the event the "Paisley Penguin" has not been removed from occupancy of the Property on or before the date established in Section 203 of this Agreement for conveyance of the Property, the Developer shall accept title to the Property subject to the "Paisley Penguin" tenancy; notwithstanding, however, that the Developer reserves the right to make subsequent changes to the terms and/or conditions of that tenancy. The Agency shall defend, assume all responsibility for, and hold the Developer harmless from all claims, demands, suits or judgments made with respect to the Agency's actions in removing the "Paisley Penguin" from occupancy of the Property. The parties acknowledge that neither the current owner of the "Swallows Inn" business nor the "Paisley Penguin" business 01/13/93 3439Q/2299/00 -10- is an intended third party beneficiary of this Agreement and that the disposition and development and/or rehabilitation of the Property that is provided for in this Agreement will not cause such owners to be permanently displaced from the Property. K. [§211] Zoning of the Property The Property is presently zoned CT (Tourist Commercial) and the current use of the Property as a restaurant/bar is a permitted use in the CT zone. Since a primary purpose of this Agreement is to provide for the continuation of the Property's current use, the Agency and the Developer agree to exercise best efforts to facilitate the continuation of the Property's current use for so long as such use remains financially viable for the Developer. The Developer shall insure that any plans for improvement and/or rehabilitation of the Property as provided for in this Agreement conform to said zoning. L. [§212] Condition of the Property For the purposes of Section 213, Section 214 and Section 217 hereto, the term "Hazardous Materials" shall mean (i) any "hazardous substance" as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seg.), as amended from time to time, and regulations promulgated thereunder; (ii) any "hazardous substance" as defined by the Carpenter -Presley -Tanner Hazardous Substance Account Act (California Health and Safety Code Sections 25300 et seg.), as amended from time to time, and regulations promulgated thereunder; (iii) asbestos; (iv) polychlorinated biphenyls; (v) petroleum, oil, gasoline (refined and unrefined) and their respective by-products and constituents; and (vi) any other substance, whether in the form of a solid, liquid, gas or any other form whatsoever, which by any "Governmental Requirements" either requires special handling in its use, transportation, generation, collection, storage, handling, treatment or disposal, or is defined as "hazardous" or harmful to the environment. The term ' "Governmental Requirements" shall mean all 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 the Agency, the Developer or the Property. 1. [§213] Suitability of the Property The Developer acknowledges and agrees that the Agency will provide the Developer with access to the Property for the purpose of investigating and determining the presence of 01/13/93 3439Q/2299/00 -11- 129 Hazardous Materials, soil condition of the Property, its ' seismic condition, its geology, the presence of known and unknown faults, and the suitability of the Property for economically feasible development and use thereof by the Developer in accordance with this Agreement. The Developer shall have thirty (30) days from the date of execution of this Agreement by the Agency to undertake, at the Developer's sole cost and expense, the Hazardous Materials assessment of the Property (the "Hazardous Materials Assessment"). The Developer shall provide the Agency with a copy of the Hazardous Materials Assessment immediately upon receipt of same by the Developer. In the event it is determined by the Hazardous Materials Assessment that remediation is required, and the cost thereof is projected to exceed the amount of Five Thousand Dollars ($5,000), the Developer shall have the option to terminate the Agreement. The Developer shall exercise such option by giving the Agency written notice within three (3) days of his receipt of the Hazardous Materials Assessment. In the event it is determined by the Hazardous Materials Assessment that the cost of remediation will be equal to or less than Five Thousand Dollars ($5,000.00), or if the cost of such remediation exceeds Five Thousand Dollars ($5,000.00) but the Developer has not terminated this Agreement pursuant to this Section 213, or Section 510 of this Agreement, the Developer shall cause the required remediation to be performed ' with the cost of the remediation to be borne solely by the Developer. 2. [§214] "As Is" Conveyance Possession of the Property shall be delivered from the Agency to the Developer in an "as is" physical condition, with no warranty, expressed or implied by the Agency as to the presence or absence of Hazardous Materials or the condition of the soil, its geology, or the presence or absence of known or unknown faults, or the suitability of the Property for any particular use or purpose. The Agency acknowledges that the existing building upon the Property is constructed using a reinforced masonry block method and does not constitute a "potentially hazardous building" as defined in California Government Code Section 8875. The Agency cannot warrant that future seismic safety improvements to the building may be required relating to changes in State law. If the condition of the Property (including the building thereon) is not in all respects entirely suitable for the use or uses to which the Property will be put, then it is the sole responsibility and obligation of the Developer to place the Property in all respects in a condition entirely suitable for his development and/or use thereof. 01/13/93 3439Q/2299/00 -12- 130 After delivery of possession of the Property, the Developer shall defend, release, indemnify and hold the Agency, the City, and their officers, employees, contractors, and/or agents harmless from any claims, liability, injury, damages, costs and expenses (including, without limitation, the cost of any clean-up of Hazardous Materials and the cost of attorneys' and consultants' fees arising as a result of the presence of Hazardous Materials) which the Agency may sustain as a result of the presence or clean-up of Hazardous Materials on the Property. M. [§215] Access to and Entry by the Developer upon the Property The Developer shall have the right of access to and entry upon the Property for the purpose of obtaining data and making surveys and tests necessary for the Hazardous Materials Assessment. The Developer covenants and agrees to and shall defend, release, indemnify and hold the Agency and the City harmless from and against any and all injuries or damages, and any liens, arising out of any work or activity of the Developer, his agents, servants, employees or contractors. This covenant of the Developer shall remain in full force and effect and survives the termination or expiration of this Agreement. The Agency agrees to provide or cause to be provided to the Developer all data and information pertaining to the Property and available to the Agency when requested in writing by the Developer. The Agency makes no warranty as to the accuracy or sufficiency of such data or information. N. [§216] Representations and Warranties of Agency The Agency hereby represents and warrants to the Developer as follows: 1. The Agency is the owner of the Property and/or has the full right, power and authority to transfer the Property to the Developer as provided herein and to perform all of the Agency's obligations hereunder. 2. To the best of the Agency's knowledge, there are no unsatisfied mechanic's or materialman's lien rights concerning the Property. 3. The Agency discloses that the proposed future realignment of Ortega Highway may require the removal of a one hundred fifty (150) square foot section of the northwest corner of the building upon the Property. The Agency recognizes that, although the Property shall be sold subject to an easement in 01/13/93 3439Q/2299/00 -13- 13.1 favor of the City as to this portion of the Property, the cost ' of any building modifications necessitated by such realignment will be borne by the City and/or the Agency. 4. Except as to proposed plans for the realignment of Ortega Highway, to the best of the Agency's knowledge, no actions, suits, or proceedings are pending or threatened before any governmental department, commission, board, bureau, agency or instrumentality that would adversely affect the Property or the right to occupy or utilize it. 5. The Agency has disclosed to the Developer all information concerning the Property of which the Agency is aware. If the Agency becomes aware of any fact or circumstance which would change or render incorrect, in whole or in part, any representation or warranty by the Agency under this Agreement, whether as of the date given or any time thereafter through the close of Escrow, and whether or not such representation or warranty was based on the Agency's knowledge and/or belief as of a certain date, the Agency will give immediate written notice of such changed facts or circumstances immediately to the Developer. 6. The Agency staff shall, following Agency's furnishing to the Developer of the Certificate of Completion (as specified in Section 307 of this Agreement), cooperate with ' the Developer to facilitate the expeditious processing and consideration of future permit and approval requests subject only to the Developer's compliance with applicable land use and building code regulations and Federal and State law. In addition, the Agency agrees to pursue discussions with the Developer regarding long-term parking improvements and policies in the vicinity of the Property as set forth in Attachment No. 7 to this Agreement and incorporated herein by reference. 0. [§2171 Representations and Warranties of Developer The Developer hereby represents and warrants to, and covenants with, the Agency as follows: 1. The Developer is familiar with the Property and has made such independent investigations as the Developer deems necessary or appropriate concerning all aspects of the Property, including, but not limited to, its title, physical condition, economic viability, financing and any and all other matters relating to the Property. 2. Except for the Agency's representations and warranties under Section 216 of this Agreement, the Developer is relying solely upon his own inspection, investigation and analysis of the foregoing matters in purchasing the Property, 01/13/93 3439Q/2299/00 -14- 32 and is not relying in any way upon any representations, statements, agreements, warranties, studies, plans, reports, descriptions, guidelines or other information or material furnished by the Agency or its representatives, whether oral or written, express or implied, of any nature whatsoever regarding any of the foregoing matters. 3. Except for the Agency's representations and warranties under Section 216 of this Agreement, the Developer acknowledges that he is aware of the condition of the building infrastructure and utilities and that he is acquiring the Property "as is" without representation or warranty by the Agency or any of the Agency's representatives or agents as to any matters. 4. In purchasing the Property on an "as is" basis, the Developer acknowledges that in the past certain Hazardous Materials (as defined in Section 212 of this Agreement) may have been stored on and deposited onto the Property which storage and depositing may violate local, state and federal laws, may result in restrictions being placed on the Developer's use of the Property and may result in fines, damages, cleanup costs and other liability being assessed against the Developer as owner of the Property. The Developer agrees that he will make no claims against the Agency or any person comprising the Agency for any fines, damages, costs or other losses the Developer suffers because of the past storage or depositing of Hazardous Materials on the Property. The Developer releases the Agency from any liability, loss, damage, judgment, fine, claim, cost or expense (including, without limitation, attorneys' fees and court costs) arising from or related to the storage or deposit of Hazardous Materials on the Property, whether or not caused in whole or in part by the active or passive negligence of the Agency. Further the Developer agrees that the Agency shall not be liable for the Developer's inability to use or develop the Property as intended for any reason whatsoever due to the past storage or depositing of Hazardous Materials on the Property and that such storage and depositing shall not provide any grounds whatsoever to support rescission of this Agreement or any other recovery by the Developer under this Agreement. In addition, the Agency shall have no liability for any subsequently discovered defects, whether latent or patent, or any other problems related to the Property. 5. The Developer acknowledges that certain exterior or interior modifications to the building, including changes to the facade, may require approval through the normal City Design Review Process. The Developer understands that all permit and processing fees and deposits for such modifications are to be paid by the Developer. 01/13/93 3439Q/2299/00 -15- 133 7. The Developer is aware of the potential adverse impacts the proposed Ortega Highway realignment may have upon any business conducted upon the Property and hereby releases the Agency and the City from any claims, liability, or causes of action regarding damage to his business from such impacts. 8. The Developer shall, prior to the close of ' escrow as provided in Section 203 of this Agreement, execute and deliver to the Agency a joint use easement in substantially the form attached hereto as Attachment No. 6 and incorporated herein by reference, for the purpose of allowing public parking on the rear parking area of the Property from the hours of 6 a.m. until 6 p.m. In addition, the Developer agrees to pursue discussions with the Agency regarding long-term parking improvements and policies in the vicinity of the Property as set forth in Attachment No. 7 to this Agreement and incorporated herein by reference. III. [§300) DEVELOPMENT OF THE PROPERTY A. [§301] Scope of Development This Agreement contemplates the disposition of the Property to the Developer and the Developer's performance of certain minor reconstruction, rehabilitation and/or repair of the existing improvements upon the Property as deemed appropriate by the Developer for his utilization of the Property (collectively, the "Repairs"). The Repairs shall be undertaken by the Developer in accordance with the Redevelopment Plan and the "Scope of Development" attached to this Agreement as Attachment No. 3 and incorporated herein by reference. 01/13/93 3439Q/2299/00 -16- 6. The Developer is familiar with plans for the future realignment of Ortega Highway and that this proposed realignment may require the removal of a one hundred fifty (150) square foot section of the northwest corner of the building upon the Property. Understanding that the City and/or the Agency will pay the cost of any building modifications necessitated by said realignment, the Developer shall, without cost to the City and/or the Agency, irrevocably offer to dedicate to the City a sufficient amount of the Property as may be necessary to accomplish said realignment. Therefore, the Developer shall, prior to the close of escrow as provided in Section 203 of this Agreement, execute and deliver to the City an "Irrevocable Offer of Dedication" in substantially the form attached hereto as Attachment No. 5 and incorporated herein by reference, for the purpose of irrevocably dedicating to the City an easement for public road and highway purposes in, upon, over and across the northwest corner of the Property so as to accommodate the realignment of Ortega Highway. 7. The Developer is aware of the potential adverse impacts the proposed Ortega Highway realignment may have upon any business conducted upon the Property and hereby releases the Agency and the City from any claims, liability, or causes of action regarding damage to his business from such impacts. 8. The Developer shall, prior to the close of ' escrow as provided in Section 203 of this Agreement, execute and deliver to the Agency a joint use easement in substantially the form attached hereto as Attachment No. 6 and incorporated herein by reference, for the purpose of allowing public parking on the rear parking area of the Property from the hours of 6 a.m. until 6 p.m. In addition, the Developer agrees to pursue discussions with the Agency regarding long-term parking improvements and policies in the vicinity of the Property as set forth in Attachment No. 7 to this Agreement and incorporated herein by reference. III. [§300) DEVELOPMENT OF THE PROPERTY A. [§301] Scope of Development This Agreement contemplates the disposition of the Property to the Developer and the Developer's performance of certain minor reconstruction, rehabilitation and/or repair of the existing improvements upon the Property as deemed appropriate by the Developer for his utilization of the Property (collectively, the "Repairs"). The Repairs shall be undertaken by the Developer in accordance with the Redevelopment Plan and the "Scope of Development" attached to this Agreement as Attachment No. 3 and incorporated herein by reference. 01/13/93 3439Q/2299/00 -16- 134 [§302] Cost of Construction The cost of the Repairs shall be borne solely by the Developer. [§303] City and Other Governmental Agency Permits The Developer shall, at his own expense, secure or cause to be secured, any and all permits which may be required by the City or any other governmental agency affected by the Repairs. The Agency staff will work cooperatively with the Developer to assist in coordinating the expeditious processing and consideration of all necessary permits and approvals. D. [§304] Rights of Access Representatives of the Agency and the City shall have the reasonable right of access to the Property without charge or fees, at normal business hours during the period of the Repairs for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in connection with the Repairs. Such representatives of the Agency or the City shall be those who are so identified in writing by the Community Development Director of the Agency. E. [§305] Local, State and Federal Laws The Developer shall carry out the Repairs in conformity with all applicable laws, including all applicable federal and state labor standards. F. [§306] Nondiscrimination During Construction The Developer for himself, his successors and assigns, agrees that in undertaking the Repairs upon the Property provided for in this Agreement, the Developer will not discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, marital status, or national origin or ancestry. G. [§307] Certificate of Completion Promptly after completion of the Repairs by the Developer upon the Property as generally and specifically required by this Agreement and in particular the Scope of Development (Attachment No. 3), the Agency shall furnish the Developer with a "Certificate of Completion" upon written request therefor by the Developer. The Certificate of Completion (Attachment No. 8) shall be substantially in the form of the "RELEASE OF CONSTRUCTION COVENANT" attached hereto as Attachment No. 8 and incorporated herein by reference, and in such form as to permit 01/13/93 3439(2/2299/00 -17- 135 it to be recorded in the Recorder's Office of Orange County. ' Such Certificate of Completion (Attachment No. 8) shall be a conclusive determination of satisfactory completion of the improvement work required by this Agreement upon the Property and shall so state. Following the Agency's issuance of the Certificate of Completion (Attachment No. 8) to the Developer, the Developer may, at his discretion, make subsequent alterations or enhancements to the Property as are approved by the City and are consistent with the Redevelopment Plan. If the Agency refuses or fails to furnish a Certificate of Completion (Attachment No. 8) for the Property after written request from the Developer, the Agency shall, within thirty (30) days of the written request, provide the Developer with a written statement of the reasons the Agency refused or failed to furnish a Certificate of Completion (Attachment No. 8). The statement shall also contain the Agency's opinion of the action the Developer must take to obtain a Certificate of Completion (Attachment No: 8). If the reason for such refusal is confined to a matter deemed insubstantial by the Community Development Director, the Agency may issue its Certificate of Completion (Attachment No. 8) upon the posting of a bond by the Developer with the Agency in an amount representing the fair value of the work not yet completed. I£ the Agency shall have failed to provide such written statement within said 30 -day period, the Developer shall be deemed entitled to the Certificate of Completion (Attachment No. 8). Such Certificate of Completion (Attachment No. 8) shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder or any insurer of a mortgage securing money loaned to finance the improvements, or any part thereof. Such Certificate of Completion (Attachment No. 8) is not notice of completion as referred to in Section 3093 of the California Civil Code. IV. [§400[ USE OF THE PROPERTY A. [§401] Uses The Developer covenants and agrees (for himself, his successors, his assigns, and every successor in interest to the Property or any part thereof) that during construction and thereafter, the Developer, such successors, and such assigns shall: 1. carry out all development and/or rehabilitation activities as provided for in this Agreement in such manner as will not cause the temporary or permanent displacement of the businesses currently occupying the Property; 01/13/93 3439Q/2299/00 -18- 136 2. rehabilitate, maintain and operate the Property as described in the Scope of Development (Attachment No. 3) and any plans approved pursuant hereto, and devote the Property to that use, as specified therefor in the Redevelopment Plan and this Agreement; 3. maintain the improvements on the Property in good condition and faithful to their western flavor and historic character, and keep the Property free from debris, graffiti or waste materials and maintain any landscaping in a healthy and weed -free condition; 4. continue to operate the historic "Swallows Inn" business upon the Property after the date of conveyance of the Property to the Developer, so long as the financial viability of the "Swallows Inn" business enterprise supports its continued operation. The Agency staff will cooperate in the transfer of the "Swallows Inn" business operation and name as such transfer relates to City permits and licenses. B. [§402] Obligation to Refrain from Discrimination 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, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, and the Developer itself (or any person claiming under or through it) shall not 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 Property. C. [§403] Form of Nondiscrimination and Nonsegregation Clauses The Developer shall refrain from restricting the rental, sale or lease of the Property, or any portion thereof, on the basis of race, color, creed, religion, sex, marital status, 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, his heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against 01/13/93 3439Q/2299/00 -19- 13'7 or segregation of, any person or, group of persons on ' account of race, color, creed, teligion, sex, marital status, 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 any person claiming under or through him, 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, his heirs, executors, administrators and assigns, and all persons claiming under or through him, 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 race, color, creed, religion, sex, marital status, national origin or ancestry, in the leasing, subleasing, transferring, use or enjoyment of the land herein leased nor shall the lessee ' himself, or any person claiming under or through him, 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 land 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, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him, 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 land." D. (9404] Effect and Duration of Covenants The covenants established in this Agreement shall, without regard to technical classification and designation, be binding on the Developer and any successor in interest to the 01/13/93 3439Q/2299/00 -20- Property, or any part thereof, for the benefit and in favor of the Agency, its successors and assigns, and the City. Except as set forth in the following sentence, the covenants contained in this Agreement shall remain in effect until the termination of the Redevelopment Plan. The covenants against discrimination set forth in Sections 402 and 403 of this Agreement shall remain in perpetuity. V. [§500] DEFAULTS, REMEDIES AND TERMINATION A. [§501] Defaults - General Subject to the extensions of time set forth in Section 605, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who so fails or delays must immediately commence to cure, correct, or remedy such failure or delay, and shall complete such cure, correction or remedy with reasonable diligence, and during any period of curing shall not be in default. The injured party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. Except as otherwise expressly provided in this Agreement, any failures or delays by either party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by either party in asserting any of its rights or remedies shall not deprive either 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. B. 1§5021 Legal Actions 1. [§503] Institution of Legal Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions may be instituted in the Superior Court of the County of Orange, State of California in an appropriate municipal court in that County. 01/13/93 3439Q/2299/00 -21- 139 2. 1§5041 Applicable Law ' The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 3. [§505] 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 Secretary of the Agency, 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 upon the Developer or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. C. [§506] 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 either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same default or any other default by the other party. D. [§507] Damages If either party defaults with regard to any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the defaulting party shall be liable to the nondefaulting party for any damages caused by such default, and the nondefaulting party may thereafter (but not before) commence an action for damages against the defaulting party with respect to such default. E. 1§5081 Specific Performance If either party defaults with regard to any of the provisions of this Agreement, the nondefaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within thirty (30) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement, the nondefaulting party, at its option, may thereafter (but not before) commence 01/13/93 3439Q/2299/00 -22- an action for specific performance of the terms of this Agreement pertaining to such default. F. [§509] Remedies and Rights of Termination 1. [§510] Termination by Developer In addition to the Developer's option to terminate this Agreement as set forth in Section 213 hereof, in the event the Developer is not in default of any of the terms and conditions of this Agreement and the Agency does not tender conveyance of title and possession of the Property to the Developer in the manner and condition and within the time established therefor by Section 203 of this Agreement, then the Developer shall notify the Agency in writing to cure such failure within ninety (90) days after the date of receipt of such notice. If such failure shall not be cured within such ninety (90) day period, then this Agreement shall, at the option of the Developer, be terminated by written notice thereof to the Agency. In such event, the Purchase Price, if any shall have been paid, and the Good Faith Deposit shall be returned to the Developer, and thereafter neither the Agency nor the Developer (or assignee or transferee) shall have any further rights against or liability to the other under this Agreement. In the event conveyance of the Property to the Developer has not occurred within five (5) days after the Developer has acquired the "Swallows Inn" business operation and name, or such later date as the parties shall mutually agree to in writing. . 2. [§511] Termination by Agency In the event that prior to the conveyance of title or transfer of possession to the Property to the Developer: (a) The Developer (or any successor in interest) assigns or attempts to assign this Agreement or any rights herein, or makes any total or partial sale, transfer, or conveyance of the whole or any part of the Property or the improvements thereon, in violation of this Agreement; or (b) There is a change in ownership of the Developer contrary to the provisions of Section 108 of this Agreement; or (c) The Developer does not deliver the Good Faith Deposit to the Agency in the amount and within the time established therefor in Section 201 of this Agreement; or (d) The Developer does not pay the Purchase Price, pursuant to Section 207 of this Agreement; or 01/13/93 3439Q/2299/00 -23- then, in addition to any other remedy to which the Agency may be entitled, this Agreement and any rights of the Developer or transferee thereof arising from this Agreement shall, at the option of the Agency, be terminated by the Agency by written notice thereof to the Developer. From the date of the written notice of termination of this Agreement by the Agency to the Developer and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties, except the ' retention of the entire Good Faith Deposit by the Agency as liquidated damages as hereinafter set forth. IN THE EVENT OF AGENCY TERMINATION OF THIS AGREEMENT UNDER THIS SECTION 511, THE GOOD FAITH DEPOSIT, AS SET OUT IN SECTION 201 HEREOF, SHALL BE RETAINED BY THE AGENCY AS LIQUIDATED DAMAGES AS THE SOLE AND EXCLUSIVE REMEDY OF THE AGENCY HEREUNDER. IN THE EVENT OF TERMINATION, THE AGENCY WOULD SUSTAIN DAMAGES BY REASON THEREOF WHICH WOULD BE UNCERTAIN. SUCH DAMAGES WOULD INVOLVE SUCH VARIABLE FACTORS AS THE DELAY OR FRUSTRATION OF TAX REVENUES THEREFROM TO THE CITY OF SAN JUAN CAPISTRANO AND THE AGENCY, THE DELAY OR FAILURE OF THE AGENCY TO FURTHER THE IMPLEMENTATION OF THE REDEVELOPMENT PLAN, AND A LOSS OF OPPORTUNITY TO ENGAGE IN OTHER POTENTIAL TRANSACTIONS, RESULTING IN DAMAGE AND LOSS TO THE AGENCY. IT IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE AMOUNT OF SUCH DAMAGES TO THE AGENCY, BUT THE PARTIES ARE OF THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE TO THEM THAT SUCH DAMAGES WOULD APPROXIMATELY EQUAL THE AMOUNT OF THE GOOD FAITH DEPOSIT, AND SUCH AMOUNT SHALL BE RETAINED BY THE AGENCY UPON TERMINATION AS THE REASONABLE TOTAL OF ALL LIQUIDATED DAMAGES FOR ANY AND ALL SUCH DEFAULTS AND NOT AS A PENALTY. IN THE EVENT THAT THE DEVELOPER SHOULD CHALLENGE THE APPLICABILITY OR EFFICACY OF THIS PARAGRAPH OR IF THIS PARAGRAPH SHOULD BE HELD TO BE VOID FOR ANY REASON, THE AGENCY SHALL BE ENTITLED TO THE ' FULL EXTENT OF DAMAGES OTHERWISE PROVIDED BY LAW. 01/13/93 3439Q/2299/00 -24- (e) The Developer does not execute and deliver to the City the "Irrevocable Offer of Dedication" (Attachment No. 5) pursuant to paragraph 6 of Section 217 of this Agreement. (f) The Developer does not execute and deliver to the Agency the "Grant of Easement for Public Parking" (Attachment No. 6) pursuant to paragraph S of Section 217 of this Agreement. (g) The Developer does not take title to the Property under a tender of conveyance by the Agency pursuant to this Agreement; or (h) The Developer is otherwise in default of this Agreement; then, in addition to any other remedy to which the Agency may be entitled, this Agreement and any rights of the Developer or transferee thereof arising from this Agreement shall, at the option of the Agency, be terminated by the Agency by written notice thereof to the Developer. From the date of the written notice of termination of this Agreement by the Agency to the Developer and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties, except the ' retention of the entire Good Faith Deposit by the Agency as liquidated damages as hereinafter set forth. IN THE EVENT OF AGENCY TERMINATION OF THIS AGREEMENT UNDER THIS SECTION 511, THE GOOD FAITH DEPOSIT, AS SET OUT IN SECTION 201 HEREOF, SHALL BE RETAINED BY THE AGENCY AS LIQUIDATED DAMAGES AS THE SOLE AND EXCLUSIVE REMEDY OF THE AGENCY HEREUNDER. IN THE EVENT OF TERMINATION, THE AGENCY WOULD SUSTAIN DAMAGES BY REASON THEREOF WHICH WOULD BE UNCERTAIN. SUCH DAMAGES WOULD INVOLVE SUCH VARIABLE FACTORS AS THE DELAY OR FRUSTRATION OF TAX REVENUES THEREFROM TO THE CITY OF SAN JUAN CAPISTRANO AND THE AGENCY, THE DELAY OR FAILURE OF THE AGENCY TO FURTHER THE IMPLEMENTATION OF THE REDEVELOPMENT PLAN, AND A LOSS OF OPPORTUNITY TO ENGAGE IN OTHER POTENTIAL TRANSACTIONS, RESULTING IN DAMAGE AND LOSS TO THE AGENCY. IT IS IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE AMOUNT OF SUCH DAMAGES TO THE AGENCY, BUT THE PARTIES ARE OF THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE TO THEM THAT SUCH DAMAGES WOULD APPROXIMATELY EQUAL THE AMOUNT OF THE GOOD FAITH DEPOSIT, AND SUCH AMOUNT SHALL BE RETAINED BY THE AGENCY UPON TERMINATION AS THE REASONABLE TOTAL OF ALL LIQUIDATED DAMAGES FOR ANY AND ALL SUCH DEFAULTS AND NOT AS A PENALTY. IN THE EVENT THAT THE DEVELOPER SHOULD CHALLENGE THE APPLICABILITY OR EFFICACY OF THIS PARAGRAPH OR IF THIS PARAGRAPH SHOULD BE HELD TO BE VOID FOR ANY REASON, THE AGENCY SHALL BE ENTITLED TO THE ' FULL EXTENT OF DAMAGES OTHERWISE PROVIDED BY LAW. 01/13/93 3439Q/2299/00 -24- 142 THE DEVELOPER AND THE AGENCY SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR SIGNATURES BELOW: Developer Agency Notwithstanding the termination of the Agreement by the Agency as set forth in this Section 511, the obligation of the Developer to the Agency and the City set forth in Section 215 of this Agreement, shall remain in full force and effect. Notwithstanding anything herein to the contrary, the Agency shall have the right to terminate this Agreement upon thirty (30) days written notice to the Developer. G. [§512] Rights and Remedies Subsequent to the Issuance of a Certificate of Completion If either the Developer or the Agency defaults under any of the provisions of this Agreement subsequent to the issuance of the Certificate of Completion, then subject to the provisions of Section 501, the non -defaulting party at its option may institute an action at law or in equity, and/or the defaulting party shall be liable to the other party for any damages caused by such default, and/or the non -defaulting party may seek any remedies available at law or in equity. VI. [§600] GENERAL PROVISIONS A. [§601] Notices, Demands and Communications Between the Parties Formal notices, demands and communications between the Agency and the Developer shall be deemed sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer as provided in Section 106 and 107 of this Agreement. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section. B. [§602] Conflicts of Interest No member, official or employee of the Agency shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. 01/13/93 3439Q/2299/00 -25- C. [§6031 Warranty against Payment of Consideration for Agreement The Developer warrants that he has not paid or given, and will not pay or give, 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. D. [§604] Nonliability of Agency Officials and Employees No member, official or employee of the Agency shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or for any amount which may become due to the Developer or successor, or on any obligation under the terms of this Agreement. E. [§6051 Enforced Delay: Extension of Times of Performance In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock -outs; riots; floods; earthquakes; ' fires; casualties; acts of God; acts of the public enemy; epidemic; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation (other than condemnation actions); unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts of the other party; acts or the failure to act, of any public or governmental agency or entity (except that acts or failure to act of the Agency 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. An extension of time for any such cause shall• only be for the period of the enforced delay, and shall commence to run from the time of the commencement of the cause, if 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 mutual agreement of the Agency and the Developer. F. [§606} Approval by the Agency and the Developer Wherever this Agreement requires the Agency or the Developer to approve any contract, document, plan, proposal, specification, drawing or other matter, such approval shall not be unreasonably withheld. 01/13/93 3439Q/2299/00 -26- 144 G. [§607] Plans and Data Where the Developer does not proceed with the purchase and development of the Property, and when this Agreement is terminated with respect thereto for any reason, the Developer shall deliver to the Agency any and all plans concerning the Property, and the Agency or any person or entity designated by the Agency shall have the right to use such plans and data. VII. [§700] ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS This Agreement is executed in five (5) identical originals, each of which is deemed to be an original. This Agreement includes twenty-eight (28) pages and eight (8) Attachments which constitute 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 with respect to all or any part of the subject matter hereof. None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the Grant Deed conveying title to the Property, the Covenant Agreement and this Agreement shall continue in full force and effect before and after such conveyance. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Agency or the Developer, and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer. VIII. [§800] 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 within forty-five (45) days after the date of signature by the Developer, or this Agreement may be withdrawn by the Developer on written notice to the Agency. 01/13/93 3439(2/2299/00 -27- �„5 The date of this Agreement shall be the date when this Agreement shall have been signed by the Agency. SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic Date: By: _ Its: "AGENCY" APPROVED AS TO FORM: STRADLING, YOCCA, CARLSON & RAUTH By: Agency Special Counsel STEPHEN A. NORDECK, an individual ' Date: By: Stephen A. Nordeck "DEVELOPER" 01/13/93 3439Q/2299/00 -28- STATE OF CALIFORNIA ss. COUNTY OF ORANGE On , 1993, before me, the undersigned, a Notary Public in and for said State, personally appeared STEPHEN A. NORDECK, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. Signature of Notary Name typed or printed (SEAL) STATE OF CALIFORNIA ss. COUNTY OF ORANGE On , 1993, before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the of the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY and acknowledged to me that the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY executed it. (SEAL) Signature of Notary Public Name typed or printed ATTACHMENT NO. 1 IPROPERTY MAP L7 [To Be Attached] 01/13/93 ATTACHMENT NO 3439Q/2299/00 Page 1 of 1 147 ATTACHMENT NO. 2 LEGAL DESCRIPTION [To Be Provided] 01/13/93 ATTACHMENT NO 3439Q/2299/00 Page 1 of 1 149 ATTACHMENT NO. 3 SCOPE OF DEVELOPMENT The Developer understands and appreciates the western flavor, historic character, and local legends surrounding the Property. The Developer is purchasing the Property in an "as is" condition, and will undertake the economic development and/or rehabilitation of the Property, maintaining the character of the building and improvements thereon. In conjunction with the purchase of the Property, the Developer is acquiring the "Swallows Inn" business and name. The Developer will continue to operate the historic "Swallows Inn" business in this location after the date of conveyance of the Property to the Developer, so long as the financial viability of the "Swallows Inn" enterprise supports its continued operation by the Developer. 01/13/93 3439Q/2299/00 ATTACHMENT NO Page 1 of 1 150 ATTACHMENT NO. 4 GRANT DEED [To be provided] 01/13/93 ATTACHMENT NO. 4 3439Q/2299/00 Page 1 of 1 ATTACHMENT NO. 5 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attention: City Clerk [Space Above For A51 s Use] This document is recorded for the benefit of the CITY OF SAN JUAN CAPISTRANO. The recording fee is exempt under Section 6103 of the Government Code. NO CONSIDERATION. By: Its: IRREVOCABLE OFFER OF DEDICATION I, STEPHEN A. NORDECK, the record owner of the following described property in the City of San Juan Capistrano, County of Orange, State of California: do hereby irrevocably offer to dedicate to the City of San Juan Capistrano, a municipal corporation, an easement for public road and highway purposes in, upon, over and across that certain portion of the above described parcel of land described as follows: 01/13/93 3439Q/2299/00 ATTACHMENT NO. 5 Page 1 of 2 152 The undersigned agrees to execute an easeme4t deed in favor of the City of San Juan Capistrano for public road and highway purposes in, upon, over and across the above described portion of said property whenever the road easement form bearing the precise legal description of the road easement required for the realignment of Ortega Highway is presented for execution. It is understood and agreed that upon its acceptance and recordation, the easement deed shall supersede this agreement and any portion of this agreement that is inconsistent with said easement deed shall cease and terminate and be of no further effect. It is further understood and agreed that this agreement shall be irrevocable upon its acceptance by the City of San Juan Capistrano and that it shall be binding upon the undersigned's successors or assigns. Dated: 01/13/93 3439Q/2299/00 1993 Stephen A. Nordeck ATTACHMENT NO. 5 Page 2 of 2 153 ATTACHMENT NO. 6 ' RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: ) San Juan Capistrano Community ) Redevelopment Agency ) 32400 Paseo Adelanto ) San Juan Capistrano, CA 92675 ) Attention: Agency Secretary ) [Space Above For Recorder's Use] This document is recorded for the benefit of the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY. The recording fee is exempt under Section 6103 of the Government Code. NO CONSIDERATION. By: Its: ' GRANT OF EASEMENT FOR PUBLIC PARKING R E C I T A L S Grantor is the fee owner of certain real property located in the City of San Juan Capistrano, California, legally described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"). Grantee desires to obtain an easement for public parking upon the Property. Grantor desires to grant such easement to Grantee in exchange for Grantee agreeing to share on a pro rata basis the maintenance and any improvement cost of the parking lot upon the Property during the term of such easement. On , 1993, Grantor and Grantee entered into a certain Disposition and Development Agreement ("Agreement") whereby Grantee conveyed title to the Property to Grantor. Pursuant to the terms of the Agreement, Grantor shall grant to ' Grantee a perpetual easement for public parking permitting 01/13/93 ATTACHMENT NO. 6 3439Q/2299/00 Page 1 of 3 154 unrestricted public parking upon the Property during the hours set forth herein. NOW THEREFORE, FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, STEPHEN A. NORDECK, an individual ("Grantor"), hereby irrevocably grants and conveys to the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic ("Grantee"), a perpetual non-exclusive easement for ingress and egress of pedestrian and vehicular traffic in, over and across, the vehicular parking upon the Property subject to the terms more particularly set forth below. Terms 1. The right to use the easement granted by Grantor shall be for the benefit of the general public for public parking in undesignated spaces seven days a week during the hours of six a.m. to six p.m. and as permitted by Grantee and/or the City of San Juan Capistrano (the "City"). 2. The easement acquired herein is acquired subject to the right of Grantor, its successors and assigns, to use the Property to the extent that such use is compatible with the full and free exercise of the easement by Grantee. 3. Except as provided in Paragraph 4 below, no fence or other barrier which would unreasonably prevent or obstruct the passage of pedestrian or vehicular travel for the purposes of ingress and egress shall be erected or permitted within or across the easement without the prior written consent of the Grantee or Grantee's successors and assigns. 4. Subject to Paragraph 6 below, Grantor reserves the right, with respect to the Property to temporarily close off a portion of the access in order to repair, replace, change or maintain any portion of the easement. 5. Grantee agrees, at its sole cost and as consideration for this grant of easement by Grantor, to patch and repair those unpaved portions of the easement area from which bungalows were previously removed. 6. Grantor and Grantee shall each have the affirmative obligation at all times to bear fifty percent (50%) of all costs incurred in repairing and maintaining the easement in a fully serviceable, level and safe condition consistent with community standards for public parking areas. Grantor agrees at its sole cost to provide for the routine cleaning and sweeping of the easement and adjacent land areas and to keep such areas free and clear of all debris and rubbish. 01/13/93 ATTACHMENT NO. 6 3439Q/2299/00 Page 2 of 3 F -j 155 7. Grantee shall defend, assume all responsibility for, and hold the Grantor, its employees and agents, harmless from all claims or suits for any damages to property or injuries to persons, including accidental death which may be caused by Grantee's use of the easement area for public parking; provided, however, that Grantee shall not be liable for such property damage or bodily injury occasioned by the sole negligence of Grantor, Grantor's patrons, or its employees or agents. 8. This Grant of Easement shall become effective upon its recordation with the Recorder of the County of Orange and shall not be terminated except upon the written consent of Grantee or Grantee's successors and assigns. 9. The covenants of Grantor contained herein shall be burdens upon and run with the Property for the benefit of the Grantee and Grantee's successors and assigns and shall be binding upon the Grantor and upon the Grantor's successors and assigns and tenants. IN WITNESS WHEREOF, this instrument has been executed this day of 1993. STEPHEN A. NORDECK, an individual Stephen A. Nordeck 01/13/93 ATTACHMENT NO. 6 3439Q/2299/00 Page 3 of 3 156 01/13/93 3439Q/2299/00 EXHIBIT A LEGAL DESCRIPTION [to be inserted] STATE OF CALIFORNIA ' ss. COUNTY OF ORANGE ) On , 1993, before me, the undersigned, a Notary Public in and for said State, personally appeared STEPHEN A. NORDECK, 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 and personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument, and acknowledged to me that he executed the same. WITNESS my hand and official seal. I (SEAL) i 01/13/93 3439Q/2299/00 Signature of Notary Public Name typed or printed 158 CERTIFICATE OF ACCEPTANCE The undersigned, being the duly appointed agent of SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), Orange County, California, pursuant to its Resolution No. , does hereby accept on behalf of the Agency, the grant of all interests in real estate for public purposes as described in the attached Grant of Easement dated the day of , 1993, by STEPHEN A. NORDECK, an individual, and does hereby certify that the Agency consents to the recordation of the attached Grant of Easement. DATED: , 1993 (SEAL) 01/13/93 3439Q/2299/00 SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY By: Its: ATTACHMENT NO. 7 UNDERSTANDING REGARDING FUTURE PARKING The parties to the sale of 31782-31786 Camino Capistrano, have discussions regarding the in the area. the property located at San Juan Capistrano agree to long term parking improvements Both parties agree to discuss in good faith, to the benefit of long-term parking improvements in the area. The buyer of the property at 31782-31876 Camino Capistrano (the "Owner") acknowledges that parking for this property is in a key location in terms of downtown public parking and that all surrounding parking is public parking. Several improvements to this area have been proposed and include the realignment of Ortega Highway, the development of a Historic Town Center Archaeological Park, the development of additional tourist commercial activities, and the construction of improved public parking lots. Additionally, the adjacent public parking area to the north will be removed with the construction of the Ortega Highway realignment. ' These improvements may impact the public parking situation. For many years, the City of San Juan Capistrano has pursued long term solutions to public parking in the downtown. The planning and design of these improvements are on-going. Consequently, since the property at 31782-31786 Camino Capistrano is in a location that will be affected by these improvements, the parties agree to discuss: 1. The use of excess parking at 31782-31786 Camino Capistrano for public parking during certain operating hours, under conditions to be established by the Owner of the property. 2. The Owner acknowledges that certain parking improvements to the area will take place which may affect his parking area in terms of pedestrian and vehicle circulation, engineering and design, etc. The Agency would expect his reasonable cooperation in discussions towards the implementation of a successful parking plan for the area. 3. Currently the Owner's parking area is designated for "Patron Use Only," the adjacent lot to the north is designated for three-hour parking only, and the lot to the south is designated for all day parking. Patrons 01/13/93 ATTACHMENT NO. 7 3439Q/2299/00 Page 1 of 2 160 of the Owner's establishment currently use these surrounding lots and patrons of businesses in the vicinity may use his lot. The Owner agrees to continue this cooperative use as long as reasonable. 4. The City of San Juan Capistrano currently leases a parking area off of E1 Camino Real for downtown merchant and employee parking. These spaces or other City parking will be made available to employees and/or patrons of the Owner in the event the Owner at some future date improves and/or expands the utilization of the property at 31782-31786 Camino Capistrano in such a way that requires additional employee and/or patron parking. In connection with the sale of the property at 31782-31786 Camino Capistrano, the Owner has granted to the San Juan Capistrano Community Redevelopment Agency a "Grant of Easement for Public Parking" upon the present parking area of the property. In the event the City and/or the Agency form a parking district which includes the Owner's property at 31782-31786 Camino Capistrano within its boundaries, the parties agree to discuss the reconveyance of this Grant of Easement for Public Parking back to the Owner. 01/13/93 3439Q/2299/00 ATTACHMENT NO Page 2 of 2 .161 ATTACHMENT NO. 8 ' RECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO: ) San Juan Capistrano Community ), Redevelopment Agency ) 32400 Paseo Adelanto ) San Juan Capistrano, CA 92675 ) Attention: Agency Secretary ) This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY By: Its: RELEASE OF CONSTRUCTION COVENANT ("Certificate of Completion") THIS RELEASE OF CONSTRUCTION COVENANT (the "Certificate of Completion") is made by the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body corporate and politic (the "Agency") in favor of STEPHEN A. NORDECK, an individual (the "Developer"), as of the date set forth below. RECITALS A. The Agency and the Developer have entered into that certain Disposition and Development Agreement (the "DDA") dated 1993 concerning the redevelopment of certain real property situated in the City of San Juan Capistrano, California as more fully described in Exhibit "A" attached hereto and made a part hereof. B. As referenced in Section 307 of the OPA, the Agency is required to furnish the Developer with a Certificate of Completion upon completion of certain reconstruction, rehabilitation and/or repair activities by the Developer as described in the DDA, which certificate shall be in such form ' as to permit it to be recorded in the Recorder's office of 01/13/93 ATTACHMENT NO. 8 3439Q/2299/00 Page 1 of 3 162 Orange County. Such Certificate of Completion shall be conclusive determination of satisfactory completion of the construction activities required by the DDA. C. The Agency has conclusively determined that such construction and development has been satisfactorily completed. NOW, THEREFORE, the Agency hereby certifies as follows: 1. The construction activities to be undertaken by the Developer have been fully and satisfactorily completed in conformance with the DDA. Any operating requirements and all use, maintenance or nondiscrimination covenants contained in the DDA shall remain in effect and enforceable according to their terms. 2. Nothing contained in this instrument shall modify in any other way any other provisions of the DDA. IN WITNESS WHEREOF, the Agency has executed this Certificate of Completion this day of 19 Dated: ATTEST: Agency Secretary APPROVED AS TO FORM: SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body corporate and politic By: Its: 01/13/93 ATTACHMENT NO. 8 3439Q/2299/00 Page 2 of 3 1 STATE OF CALIFORNIA ss. COUNTY OF Orange On , 199_, before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the of the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body corporate and politic, and acknowledged to me that the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY executed it. WITNESS my hand and official seal. (SEAL) 01/13/93 3439Q/2299/00 Signature of Notary Public Name typed or prin ATTACHMENT NO. 8 Page 3 of 3