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-