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1989-1017_FRANCISCAN PLAZA INVESTMENT GROUP_1st Amendment to Owner Participation AgreementAgency Copy FIRST AMENDMENT TO OWNER PARTICIPATION AGREEMENT This First Amendment to Owner Participation Agreement First Amendment") is entered into as of this17t day of October , 1989, by and between the San Juan Capistrano Community Redevelopment Agency (the "Agency" ) and Franciscan Plaza Investment Group, a California corporation (the Participant") . R E 1 I T A L ZS WHEREAS, Agency and Participant have previously entered into an Owner Participation Agreement dated December 15, 1987, the "OPA") ; and WHEREAS, the parties mutually desire to add certain provisions to the OPA, including without limitation Amendment of the Lease Agreement between the parties (Attachment No. 4 to the OPA) and provisions concerning reimbursement for costs incurred by the parties or to be incurred by the parties for archaeological studies . NOW, THEREFORE, the Agency and the Participant agree to amend the OPA as follows: Section I. On page 22 of the OPA, in Section 501, entitled "Uses, " amend the first full sentence on page 22 to read: "However, in no event shall the number of commuter spaces be less than one hundred thirty-one (131) . " Section 2 . On page 22 of the OPA, preceding the first full paragraph add: As set out in greater detail in that certain Joint Parking Agreement to be negotiated by and between Participant and the Agency (the "Joint Parking Agreement") , after completion of Phase II, in the event circumstances determine that not all of the spaces in the Parking Facility are needed for tenant parking, the Agency shall have the right to obtain and set aside additional commuter spaces upon payment to the Participant of $5,446 per space. It is the intention of the parties that commuter parking will not affect the evening hours of operation of tenants as set forth in the Joint Parking Agreement . The Agency shall have the right, upon reasonable notification to Participant, to use of the entire structure for general public parking with no controls or charges for special events and on special days, such as the annual community celebration of Swallow' s Day. Notwithstanding anything herein to the contrary, the number of special event days shall not exceed six (6) days per year, and Participant shall receive notice thirty (30) days prior to such special events . If so requested by the Agency, Participant shall provide space to house the employees and operations for proposed rail baggage service and ticket sales . In the event Agency requests such space in an area other than the office being built in the Parking Facility, or such office needs to be modified for this use, Agency shall make such modifications at its sole cost. if any modifications approved by both parties require a reduction in the number of parking spaces such loss shall result in an equal reduction in the one hundred and thirty-one (131) spaces available for commuters . Commencing with the opening of the Parking Structure there shall be a minimum charge assessed for use of commuter parking spaces and fifty percent (50%) of said charge shall be payable to Participant. Participant shall make the restrooms on the first floor of the project available for use by the general public. Signage indicating this shall be approved by both the Agency and Participant and shall be appropriately posted to adequately inform the public of the availability of the restrooms. Section 3 . On page 23 of the OPA, delete the first sentence of the first paragraph of Section B. 502 and replace with the following: Agency shall have sole discretion in selecting the firm and/or method for managing the parking facility, including the charges for use and other terms of operations subject to providing the tenants of the Participant and the Provincial Building with the required parking spaces and ensuring the Participant receives 50`s of the proceeds of all paid parking. Section 4 . On page 30 of the OPA, after Section 803 , add new Sections 804, 805, 806, 807 and 808 to read as follows : D. [§8041 Reimbursement for Archaeological Studies . 1. [§8051 Agency Reimbursement for Archaeological Investigations Participant at its sole cost and expense has caused the investigation for cultural resources on that portion of the Site identified as Assessor ' s Parcel Nos. 121-150-09, 121-150-10, 121-150-12, 121-1,50-20, 121-150-21, 121-150-22 the "Parcels") at a cost of $24, 980 . The Agency agrees to 3488n/2299/030 2- reimburse the Participant for one-half of those costs actually incurred in an amount not to exceed $12,490 . Reimbursement will be made within thirty (30) days after the Participant has submitted a final accounting to the Agency with supporting documentation which evidences the costs actually incurred in the cultural resources investigation of the Parcels . 2 . [§806] Participant Reimbursement For Archaeological Investigations Agency at its sole cost and expense has caused the further investigation of the Parcels for archaeological resources at a cost not to exceed $141, 188, under an agreement with the Chambers Group dated May 3, 1989 (the Chambers Group Agreement") , and amended through subsequent authorized change orders. The Participant agrees to reimburse the Agency for a portion of the costs actually incurred under the Chambers Group Agreement in an amount of 35,297. Reimbursement will be made within thirty (30) days of the completion of work under the Chambers Group Agreement . In addition, Participant shall at its sole cost and expense has caused further archaeological investigation of the Parcels at a cost of $212, 897. The Agency agrees to reimburse the Participant for additional mitigation measures in an amount not to exceed $158, 984 . Reimbursement will be made within thirty (30) days after the Participant has submitted a final accounting to the Agency with supporting documentation which evidences the costs actually incurred and paid in the cultural resources investigation of the Parcels. The Agency' s total obligations in Section 805 and 806 is $277,365 . , of which $74, 899 . 53 has already been paid. The remainder shall be reimbursed according to the provisions set forth in Sections 805 and 806 . 3 . [§807)Agency Ownership of Archaeological Finds Participant agrees that in return for the reimbursement promised and the cost incurred by the Agency under Sections 805 and 806 that the Agency shall become the sole owner of any archaeologically significant materials, objects or other finds located on the Parcels. Participant shall have the right to display selected items from the archeological finds located on the Parcels provided they are properly displayed and adequately protected as required by Agency. Agency shall have the right to approve the specific items and period of display. In the event that the Agency determines to transfer the ownership interest in 3488n/2299/030 3- any of said finds located on the Parcels, then the proceeds of said transfer shall be divided on a fifty percent (50%) basis between the Agency and the Participant. 4 . [§808] Liability Participant shall protect, defend, indemnify and hold harmless the City of San Juan Capistrano (the "City" ) , the Agency and their elective and appointive boards, officers, agents and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorney fees, for injury to, or death of, any person, and for injury to any property, including consequential damages of any nature resulting therefrom, arising out of or in any way connected with the performance under Sections 805 or 806 of this Agreement by, or on behalf of Participant. Participant shall comply with all of the provisions of the Worker' s Compensation Insurance and Safety in Employment Laws of the State of California, including the applicable provisions of Divisions 4 and 5 of the California Labor Code and all, amendments thereto, and all similar state, federal, or local laws applicable; and shall indemnify and hold harmless the City and the Agency and their employees, officers and agents from and against all claims, liabilities, expenses, damages, suits, actions, proceedings and judgments of every nature and description, including attorney' s fees, presented, brought or recovered against City or Agency, for or on account of any liability under any of said laws which may be incurred by reason of any work performed under Sections 805 or 806 of this Agreement by Participant or on its behalf . Agency and City do not, and shall not, waive any rights against Participant which they may have by reason of this Section 808 because of the acceptance by City or Agency or the deposit with City or Agency by Participant of any insurance policies or certificates of insurance purporting to indemnify for the aforesaid losses . The aforesaid hold-harmless agreements by Participant shall apply to all liabilities, claims, expenses, and damages of every kind including, but not limited to, attorney fees, suffered or alleged to have been suffered, by reason of the aforesaid operations of Participant or any subcontractor or others performing on behalf of Participant, regardless of whether or not such insurance policies are applicable. " Section 5 . On pages 3 and 4 of Attachment No. 4 to the OPA (the "Lease Agreement") amend Section 4 (a) to read as follows: 3488n/2299/030 4- a) Rent. For each of the periods (the "Rental Periods" ) commencing six (6) months from the date the City allows the occupancy of the Parking Facility through the issuance of the Certificate of Occupancy or a Temporary Certificate of Occupancy on the Parking Facility in conformity with the Agreement and continuing according to the schedule below for the first six (6) Rental Periods and thereafter on an annual basis, the Lessee agrees to pay to the Lessor as the Base Rent the sum of One Dollar ($1. 00) . The Certificate of Occupancy or Temporary Certificate of Occupancy shall not be withheld due solely to a delay in the Participant ' s installation of the equipment necessary for commuter parking. In addition to the Base Rent, the Lessee agrees to pay to the Lessor Supplemental Rent for the first three 3) Rental Periods according to the following table: Ending In Amount of Rental Period Month Supplemental Rent 1 6 312, 540 2 18 281,271 3 36 250,024 At the end of the third operating year after the date of issuance of the certificate of completion for the Parking Facility, the Lessee and Lessor shall review the actual performance to determine the third year net cash flow after debt service and before distribution to the Participant as a percentage of equity. In making this calculation, equity shall be the difference between the construction lender(s) ' or permanent lender(s) determination of project value for the purposes of making the construction loan and the amount of the loan. Using this percentage the Lessee shall pay an additional amount of Supplemental Rent for Rental Periods 4 , 5 and 6, ending in months 48, 60 and 72 respectively, based on the following table: Cash Flow as Additional Amount of of Equity Supplemental Rent less than 0% 275, 000 0% to 4 . 0% 200, 000 4 . 0% to 8 . 0$ 175, 000 8 . 0% to 13 .0% 150, 000 13 . 0% to 17.0% 125, 000 more than 17. 0%0- Section 6 . Option to Purchase. The Agency shall have the right to purchase the Parking Facility at its sole option. This option may not be exercised before two (2) years after the certificate of completion has 3488n/2299/030 5- been issued on the entire project (Phase I and Phase II) , and must be exercised no later than seven (7) years after the issuance of the certificate of completion for the entire project . The Agency and the Participant shall begin negotiations to set the price at which the Agency may purchase the Parking Facility and the lease back costs within thirty (30) days of the execution of this First Amendment. At the time of negotiations, the Agency and the Participant shall agree in writing on all factors which shall be used to establish a value for the structure including, but not limited to, the following criteria : 1. The original construction cost of the Parking Facility including hard costs, soft costs and offsites . 2. The original cost of the land on which the Parking Facility is located. 3 . Payments- the Participant has made to the date of the purchase for financing fees, principal and interest on the portion of his financing dealing with the Parking Facility. 4 . Compensation paid to date by the Agency to the Participant for the lease of the structure. 5 . Such other factors as the Agency or the Participant may deem appropriate in establishing a value for the structure. Unless otherwise modified by agreement between the Agency and the Participant, upon purchasing the Parking Facility the Agency and the Participant shall ensure the following: 1 . Adequate parking shall be maintained for the tenants of Franciscan Plaza and the Provincial Building according to conditions set forth in the Joint Parking Agreement . 2 . The Participant shall continue to: (i) receive its share of the compensation collected by the Agency for the paid parking and (ii) pay its share of the CAM charges. In the event that the parties are unable to come to an agreement by October 1, 1990 as to the option purchase price this option shall be terminable by either party. In the event that this section is found to be unenforceable or invalid such unenforcibility or invalidity shall not effect any other provision of this Agreement which shall remain in full force and effect. 3488n/2299/030 6- Section 7. Each and every provision of the OPA remains in full force and effect and survives this Amendment. The OPA is incorporated herein by this reference. SAN JUAN CAPISTRANO COMMUNITY REDEVVELOO NT AGENCY By. Kenneth E. Fries , Chairman ATTEST: gAencySretary APPROVED AS TO FORM: Stradling, Yocca, earlson & Rauth Agency Attorney FRANCISCISC-A INVESTMENT GROUP By: Paul F rber, Vz4zideat 3488n/2299/030 7-