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1987-1222_FRANCISCAN PLAZA INVESTMENT GROUP_Owener Participation Agreement y � Re �rding requested byis Recording fees#1 pt due to Government Code 6103 RNe ,rding requested by TL. :,_,r Tax - No Consideration i City of San Juan Capistrano When recorded mail to: Agency Secretary Mary Ann no , City Clerk Sari Juan Capistrano Community City of Saii Juan Capistrano Redevelopment Agency 32400 Paseo Adelanto San Juan Capistrano, CA 92675 8T--10466? EXEMPT C+8 RECORDED IN OFFICIAL RECORDS OF ORANGE COUNTY. CALIFORNIA OWNER PARTICIPATION AGREEMENT `2 1§ PM DEC 2 2'87 RECORMP by and among the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, AGENCY, t and FRANCISCAN PLAZA INVESTMENT GROUP PARTICIPANT, 8T-704562 10 TABLE OF CONTENTS I . [ §100] SUBJECT OF AGREEMENT. A. 1 §1011 Purpose of Agreement B. [ §102 ] The Redevelopment Plan C. [ §103 ] The Site D. [ §104] The Property E. [ §105 ] Parties to the Agreement 1 . [ §106] The Agency 2 . [ §107 ] The Participant 3 . [ §1081 Representations by Participant 4. [ §109 ] Prohibition Against Change in Ownership, Management and Control of Participant 5 . [ §110] Relationship of Agency and Participant II . [ §200] ASSEMBLY OF THE SITE A. [ §201 ] Participant Assembly Obligations B. [ §202 ] Indemnity III . [ §300) DISPOSITION OF THE SITE A. [ §3011 Lease B. [ §302 ] Conditions Precedent C. [ §303 ] Escrow D. [ §3041 Conveyance of Leasehold Title E. [ §305 ] Form of Documents F. [ §3061 Condition of Leasehold Title G. [ §307 ] Recordation of Documents W B7Y-70466? H. { §308] Title Insurance I . j §3091 Condition of the Site J. [ §310] Preliminary Work and Grading IV. [ §400] DEVELOPMENT OF THE SITE A. [ §401 ] Scope of Development B. [ §402 ] Site Plan C. [ §403 ] Construction Drawings and Related Documents D. [ §404] City Approval of Plans, Drawings, and Related Documents E. [ §405 ] Cost of Construction F. [ §406] Construction Schedule G. [ §407 ] Bodily Injury and Property Damage Insurance H. [ §408 ] City and Other Governmental Agency Permits I . [ §409] Rights of Access J. [ §410 ] Local, State and Federal Laws K. [ §411 ] Antidiscrimination During Construction L. [ §413 ] Taxes, Assessments, Encumbrances and Liens M. [ §414] Prohibition Against Transfer of the Site, the Buildings or Structures Thereon and Assignment of Agreement N. [ §415 ] Mortgage, Deed of Trust, Sale and Lease-Back Financing; Rights of Holders 1 . [ §416] No Encumbrances Except Mortgages, Deeds of Trust, or Sale and Lease-Back for Development (ii ) 57-704662 2 . [ §4171 Holder Not Obligated to Construct Improvements 3 . [ §418 ] Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure 4. [ §419 ] Failure of Holder to Complete Improvements 5. [ §420 ] Right of the Agency to Cure Mortgage or Deed of Trust Default 0. [ §421 ] Right of the Agency to Satisfy Other Liens on the Site After Title Passes P. [ §422 ] Certificate of Completion V. [ §500] USE OF THE SITE A. [ §501 ] Uses B. [ §502 ] Maintenance and Operation of Facility C. [ §503 ] Rights of Access D. [ §504] Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction VI . [ §600] GENERAL PROVISIONS A. [ §6011 Notices, Demands and Communications Between the Parties B. [ §6021 Conflicts of Interest C. [ §603 ] Enforced Delay; Extension of Times of Performance D. [ §604] Nonliability of Officials and Employees of the Agency VII . [ §700 ] DEFAULTS AND REMEDIES A. [ §701 ] Defaults -- General B. [ §702 ] Legal Actions 1 . [ §703 ] Institution of Legal Actions ( iii ) 2 . [ §704] Applicable Law 3 . [ §705 ] Acceptance of Service of Process C. [ §706] Rights and Remedies Are Cumulative D. [ §707 ] Inaction Not a Waiver of Default E. [ §708] Remedies and Rights of Termination 1 . [ §709) Damages 2 . [ §710] Specific Performance 3 . [ §7111 Termination by the Participant 4. [ §712 ] Termination by the Agency VIII . [ §800] SPECIAL PROVISIONS A. [ §801 ] Real Estate Commissions B. [ §8021 Successors in Interest C. [ §803 ] Amendments to this Agreement IX. [ §900] ENTIRE AGREEMENT, WAIVERS X. [ §1000 ] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY (iv) 87-7046fi2 i ATTACHMENTS Attachment No. 1 Site Map Attachment No. 2 Legal Description Attachment No. 3 Schedule of Performance Attachment No. 4 Lease Attachment No. 5 Deed of Trust Attachment No. 6 Scope of Development Attachment No. 7 Certificate of Completion Attachment No. 8 Guaranty Attachment No. 9 Non-Disturbance and Attornment Agreement (v) 87--70468? OWNER PARTICIPATION AGREEMENT THIS AGREEMENT is entered into by and among the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY (the "Agency" ) and FRANCISCAN PLAZA INVESTMENT GROUP, a California limited partnership (the "Participant" ) . The Agency and the Participant, hereby agree as follows: I . [ §100 ] SUBJECT OF AGREEMENT A. [ §101 ] Pur ose of Agreement The purpose of this Agreement is to effectuate the Redevelopment Plan (as hereinafter defined) for the Central Redevelopment Project Area by providing for the disposition and development of certain property situated within the Project Area (the "Project Area" ) of the Project. That portion of the Project Area to be developed pursuant to this Agreement (the "Site" ) is depicted on the "Site Map" , which is attached hereto as Attachment No. 1 and incorporated herein by reference. This Agreement is entered into for the purpose of developing the Site by the construction of a parking facility (the "Facility" ) and not for speculation in land holding. Completing the development on the Site pursuant to this Agreement and the acquisition by the Agency of that leasehold interest in certain real property to be conveyed by the Participant to the Agency is in the vital and best interest of the City of San Juan Capistrano, California (the "City" ) and the health, safety, morals and welfare of its residents, and in accord with the public purposes and provisions of applicable state and local laws and requirements under which the Project has been undertaken. B. [ §102 ] The Redevelopment Plan The Redevelopment Plan was approved and adopted by the City Council of the City of San Juan Capistrano by Ordinance No. 488 as amended by Ordinance Nos. 509, 547 and 582; said ordinances and The Redevelopment as so approved (the "Redevelopment Plan" ) are incorporated herein by reference. C. [ §103 ] The Site The Site is that portion of the Project Area designated on the Site Map (Attachment No. 1 ) and described in the "Legal Description" , which is attached hereto as Attachment No. 2 and is incorporated herein by reference . 87-704662 D. [ §104] The Property The Property is that portion of the Project Area so designated on the Site Map (Attachment No. 1) . The Property is currently owned by the Participant. The Parking Facility and specified improvements to be constructed thereon in accordance with this Agreement, is sometimes hereinafter referred to as the "Project" . E. [ §105 ] Parties to the Agreement I . [ §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 and mailing address of the Agency (for purposes of this Agreement) is located at 32400 Paseo Adelanto, San Juan Capistrano, California 02675 . "Agency" , as used in this Agreement, includes the City of San Juan Capistrano Redevelopment Agency, and any assignee of or successor to its rights, powers and responsibilities . 2 . [ §107 ] The Partici ant The Participant is FRANCISCAN PLAZA INVESTMENT GROUP, a California limited partnership. The general partner( s) of FRANCISCAN PLAZA INVESTMENT GROUP is Paul L. Farber and Associates, Inc . , a California corporation. The principal office and mailing address of the Participant for the purposes of this Agreement is c/o Paul A. Farber & Associates, 26300 La Alameda, Suite 470, Mission Viejo, California 92691 . The Participant has represented to the Agency that the Participant has the experience and qualifications necessary to perform as Participant pursuant to this Agreement. 3 . [ §108 ] Representations by Participant Participant represents and warrants to the Agency as follows: A. The Participant is duly established and in good standing under the laws of the State of California and has duly authorized, executed and delivered this Agreement and any and all other agreements and documents required to be executed and delivered by the Participant in order to carry out, give 12-11-87 7241k/2299/30 -2- 8T-704662 effect to, and consummate the transactions contemplated by this Agreement. B. The Participant does not have any material contingent obligations or any material contractual agreements which could materially adversely affect the ability of the Participant to carry out its obligations hereunder. C. There are no material pending or, so far as is known to the Participant, threatened, legal proceedings to which the Participant is or may be made a party or to which any of its property is or may become subject, which has not been fully disclosed in the material submitted to the Agency which could materially adversely affect the ability of the Participant to carry out its obligations hereunder. D. There is no action or proceeding pending or, to the Participant' s best knowledge, threatened, looking toward the dissolution or liquidation of the Participant, and there is no action or proceeding pending or, to the Participant' s best knowledge, threatened by or against the Participant which could affect the validity and enforceability of the terms of this Agreement, or materially and adversely affect the ability of the Participant to carry out its obligations hereunder. E. The Participant has performed all of its obligations to be performed at or prior to this date in accordance with the Schedule of Performance and is not in default hereunder. Each of the foregoing items A to E, inclusive shall be deemed to be an ongoing representation and warranty. The Participant shall advise the Agency in writing if there is any change pertaining to any matters set forth or referenced in the foregoing items A to E, inclusive. 4. [ §109 ] Prohibition Against Change in Ownership, Management and Control of Participant The qualifications and identity of the Participant are of particular concern to the City and the Agency. It is because of those qualifications and identity that the Agency has entered into this Agreement with the Participant. No voluntary or involuntary successor in interest of the Participant shall acquire any rights or powers under this Agreement except as expressly set forth herein. Prior to issuance of a Certificate of Completion for all of the Public Improvements, the Participant shall not assign or transfer all or any part of this Agreement or the Site or any rights hereunder without the prior written approval of the Agency. The Agency shall not unreasonably withhold its 12-11-87 7241k/2299/3O -3- approval of an assignment or an expanded partnership or new partnership which includes (i) Paul L. Farber ("Farber" ) or (ii ) an entity in which Farber retains an interest of greater than 50% of profits and losses or maintains complete operational and managerial control as a general partner, provided that: ( 1 ) the assignee partnership shall expressly assume the obligations of the Participant pursuant to this Agreement in writing reasonably satisfactory to the Agency; (2 ) the original Participant shall remain fully responsible for the performance and liable for the obligations of the Participant pursuant to this Agreement; and (3 ) the assignee (or expanded partnership) is financially capable, as reasonably determined by the Agency, of performing the duties and discharging the obligations it is assuming. The Participant shall promptly notify the Agency in writing of any and all changes whatsoever in the identity of the persons in control of the Participant and the degree thereof. In the event of death or incapacity of one or more of the partners or principals Of the Participant, the Agency shall not unreasonably withhold its approval of an assignment satisfying criteria numbered (1) and (3) , respectively, in the preceding sentence. All of the terms, covenants and conditions of this Agreement shall be binding upon and shall inure to the benefit of the Parties and the permitted successors and assigns of the Parties. Whenever the term "Participant" is used herein, such term shall include any other permitted successors and assigns as herein provided. Section 109 shall be inapplicable following the issuance by the Agency of a Certificate of Completion for all of the Public Improvements. 5 . [ §110 ] Relationship_ of Agency and Participant It is hereby acknowledged that the relationship between the Agency and the Participant is not that of a partnership nor joint venture and that the Agency and the Developer shall not be deemed or construed for any purpose to be the agent of the other. II . [ §200] ASSEMBLY OF THE SITE A. ( §201 ] Participant Assembly Obli ations The Participant has acquired fee title to all portions of real property comprising the Site . 12-11-87 7241k/2299/30 -4- • • 87-704662 B. [ §202 ] Indemnitor The Participant shall defend, indemnify, and hold harmless each of the Agency and the City from and against any claims, demands, suits, judgments or awards arising from or related in any manner to (i ) the activities of the Participant, ( ii ) the prior acquisition of the Site by the Participant, ( iii ) the disposition of the Site pursuant to this Agreement (including without limitation the "Lease", which is attached hereto as Attachment No . 4, and is incorporated herein by reference, or (iv) relocation or removal of any occupants of the Site (whether effected by the Agency or the Participant) . This indemnity shall not apply to the Agency' s breach or default of any of the terms, conditions or covenants of the Lease (Attachment No. 4) . III . [ §300} DISPOSITION OF THE SITE A. [ §301 ] Lease 1 . The Participant shall lease the Parking Facility as depicted on the S-_ z�e Map (Attachment No. 1 ) to the Agency pursuant to the Lease (Attachment No. 4) . The transfer of leasehold estate pursuant to the Lease (Attachment No. 4) shall constitute the "Lease Transfer" . The respective obligations of the parties, including without limitation the development of the Parking Facility and Public Improvements and the payment of rent, are set forth in the Lease (Attachment No. 4) . The Participant and the Agency shall execute the Lease (Attachment No. 4) by the applicable time established therefor in the Schedule of Performance (Attachment No. 3 ) ; provided that the execution by the Agency of said Lease shall be subject to and conditioned upon the prior satisfaction by the Participant of the "Conditions Precedent" , as set forth in Section 302 of this Agreement. 2 . In addition to the consideration set forth in this Section 301 , the Participant shall pay all of those costs, charges, fees and expenses as hereafter expressly provided to be paid by Participant pursuant to this Agreement and shall, at its cost, provide all of the improvements required by this Agreement to be provided by the Participant (the "Public Improvements" ) . The Public Improvements are described in the "Public Improvement Specifications" which is attached hereto as Attachment No. 8 and is incorporated herein by reference. Participant shall pay 100% of the cost of the Public Improvements (Attachment No. 8) with the exception that there shall be a limit of Thirty-Five Thousand Dollars ( $35, 000. 00) to Participant' s expenditure for the railroad platform improvement and the landscaping associated with the railroad platform improvement. 12-11-87 7241k/2299/30 -5- • 87-TO456? The Agreement and the Lease (Attachment No . 4) provide substantial economic incentives to the Participant, based upon covenants by the Participant to dedicate the parking structure to public purposes. Public purposes shall be defined as "open and available to the public on an equal basis. " This covenant of dedication to public purposes is permanent, shall run with the land and shall therefor continue beyond the term of the Lease (Attachment No. 4) . Additional economic incentives are provided in that Parking Revenue generated from commuter parking or other paid parking, is to be divided between the Agency and the Participant on a 50/50 basis. B. [ §302 ] Conditions Precedent As conditions precedent to the obligations to the Agency to commence the term of the Lease (Attachment No. 4) , the Participant shall complete all of the following: I . the Participant executes the Lease (Attachment No. 4) ; 2 . the Participant provides proof satisfactory to the Agency that the Participant: (i ) holds fee title to all of the Site; and ( ii ) has verified that the zoning of the Site is such as to permit development of the Public Improvements and the use, operation, and maintenance of such improvements; 3 . the Participant executes (and obtains execution of all parties having any fee ownership interest in the Site) the Deed of Trust (Attachment No. 5) ; 4. the Participant provides proof satisfactory to the Agency that all real property taxes levied with respect to the Site have been paid, and that no such taxes are delinquent; 5 . the condition of the leasehold title of the Agency upon recordation of the Lease (Attachment No. 4) would conform to Section 306 of this Agreement. The foregoing conditions numbered 1 to 5, inclusive, shall collectively constitute the "Conditions Precedent" . C. [ §303 ] Escrow The Agency agrees to open an escrow (the "Escrow" ) with First American Title Insurance Company (or with another mutually agreeable escrow company) (the "Escrow Agent" ) by the 12--11-s7 7241k/2299/30 -6- r 87--704062 time established therefor in the Schedule of Performance (Attachment No. 3 ) . The Escrow Agent shall accomplish the recordation of the Lease (Attachment No. 4) and the Deed of Trust (Attachment No. 5) , all as more particularly set forth herein. This Agreement constitutes the joint basic escrow instructions of the Agency and the Participant for creation of a leasehold interest for the Agency pursuant to the Lease (Attachment No. 4) , and an interest pursuant to the Deed of Trust (Attachment No. 5) and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. The Agency and the Participant shall provide such additional escrow instructions as shall be necessary for and consistent with this Agreement. The Escrow Agent is hereby empowered to act under this Agreement, and the Escrow Agent, upon indicating within five (5 ) days after the opening of the Escrow its acceptance of the provisions of this Section 303, in writing, delivered to the Agency and the Participant, shall carry out its duties as Escrow Agent hereunder. Upon delivery of the Lease (Attachment No. 4) , and the Deed of Trust (Attachment No. 5 ) to the Escrow Agent by the Agency, the Escrow Agent shall record such Lease and Deed of Trust, when leasehold title can be vested in the Agency and the interest of the Agency pursuant to the Deed of Trust (Attachment No. 5) shall similarly be vested in the Agency, all in accordance with the terms and provisions of this Agreement. Any insurance policies covering the Property or any parcel are not to be transferred. The Participant shall pay in escrow to the Escrow Agent the following fees, charges and costs promptly after the Escrow Agent has notified the Participant of the amount of such fees, charges and costs, but not earlier than ten ( 10) days prior to the scheduled date for closing the Escrow: 1 . One-half ( 1/2) of the escrow fee; 2 . Any State, County or City Documentary Stamps; 3 . Any transfer tax; 4. Costs necessary to place title to the Property in the condition required by this Agreement prior to recordation of the Lease (Attachment No. 4) and the Deed of Trust (Attachment No. 5 ) ; 5 . Recording fetes; 6. Nota . y fees; and 12-11-87 7241k/2299/30 -7- 7 . The premium for the title insurance policy to be ` -paid by the Participant as set forth in Section 1 308 of this Agreement. r The Agency shall pay to the Escrow Agent prior to closing one-half ( 1/2 ) of the escrow fee. By the time established therefor in the Schedule of Performance (Attachment No. 3 ) , the Participant shall execute and deposit with the Escrow Agent the Lease (Attachment No. 4) and the Deed of Trust (Attachment No . 5) . Subject to Section 302 of this Agreement, the Agency shall execute such Lease and such Deed of Trust prior to the close of escrow. The Escrow Agent is authorized to: 1 . Pay, and charge the Participant and Agency for any fees, charges and costs payable under this Section 303 of this Agreement. Before such payments or charges are made, the Escrow Agent shall notify the Agency and the Participant of the fees, charges and costs necessary to clear title and close the Escrow. 2 . Disburse funds and deliver the deed and other documents to the parties entitled thereto when the conditions of this Escrow have been fulfilled by the Agency and the Participant. 3 . Record any instruments delivered through this Escrow, if necessary or proper, to vest leasehold title in the Agency in accordance with the terms and provisions of this Agreement. All funds received in this Escrow shall be deposited by the Escrow Agent, with other escrow funds of the Escrow Agent in an interest earning general escrow account or accounts with any state or national bank doing business in the State of California. Such funds may be transferred to any other general escrow account or accounts. All disbursements shall be made by check of the Escrow Agent. All adjustments are to be made on the basis of a thirty (30) day month. If this Escrow is not in condition to close on or before the time established therefor in Section 304 of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of leasehold title may, in writing, demand from the Escrow Agent the return of its money, papers or documents deposited with the Escrow Agent. No demand for return shall be recognized until ten ( 10) days after 12-11-87 7241k/2299/30 -6- • • 8 7-70455? the Escrow Agent shall have mailed copies of such demand to the other party or parties at the address of its or their principal place or places of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party within the ten ( 10) day period, in which event the Escrow Agent is authorized to hold all money, papers and documents with respect to the Property until instructed by a mutual agreement of the parties or by a court of competent jurisdiction. If no such demands are made, the Escrow shall be closed as soon as possible. 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 Participant or until the party entitled thereto has been determined by a final decision of a court of competent jurisdiction. Any amendment to these Escrow instructions shall be in writing and signed by both the Agency and the Participant. 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 Participant shall be directed to the addresses specified in Sections 105 and 106 of this Agreement and in the manner established in Section 601 of this Agreement for notices, demands and communications between the Agency and the Participant. The liability of the Escrow Agent under this Agreement is limited to performance of the obligations imposed upon it under Sections 303 to 308, both inclusive, of this Agreement. Neither the Agency nor the Participant shall be liable for any real estate commissions or brokerage fees which may arise herefrom. The Agency and the Participant each represents that it has not engaged any broker, agent or finder in connection with this transaction. D. [ §3041 Conveyance of Leasehold Title Subject to any extensions of time mutually agreed upon between the Agency and the Participant, the conveyance of leasehold title to the Agency pursuant to the Lease (Attachment No. 4) shall be completed on or prior to the date specified therefor in the Schedule of Performance (Attachment No. 3 ) . Said Schedule of Performance (Attachment No. 3) is subject to revision from time to time as mutually agreed upon in writing between the Participant and the Agency. The Agency and the 12-11-87 7241.k/2299/30 -9- 87-704662 Participant agree to perform all acts necessary to conveyance of leasehold title in sufficient time for leasehold title to be conveyed in accordance with the foregoing provisions. Possession shall be delivered to the Agency concurrently with the conveyance of leasehold title. E. [ §305 ] Form of Documents The Participant shall convey to the Agency leasehold title to the Property in the condition provided in Section 306 of this Agreement by the Lease (Attachment No. 4) . The Participant shall additionally cause the concurrent recordation of the Deed of Trust (Attachment No. 5) . F. [ §306] Condition of Leasehold Title The Participant shall convey to the Agency leasehold title to the Parking Facility free and clear of all recorded or unrecorded liens, encumbrances, covenants, assessments, easements, leases and taxes, except for liens, encumbrances, covenants, assessments, and easements of record which are hereafter approved in writing by the Agency (which shall act reasonably in evaluating any such encumbrances) and liens for construction or take-out financing for the Public Improvements; the interest of the Agency to be created upon recordation of the Deed of Trust (Attachment No. 5) shall be subject only to the same encumbrances. The Participant shall have the right to pledge any rent payable by the Agency pursuant to the Lease (Attachment No. 4) . The Agency authorizes its Executive Director to execute such documents as may be necessary to subordinate its total interest in the Parking Facility including the Lease (Attachment No. 4) to deeds of trust in favor of lenders providing construction or take-out financing in connection with the Project, where the lender seeking subordination has executed a Non-Disturbance and Attornment Agreement substantially in the form of Attachment No. 9 which is attached hereto and incorporated herein by this reference. G. [ §307 ] Recordation of Documents The Escrow Agent shall file first the Lease (Attachment No. 4) and the Deed of Trust (Attachment No. 5) for recordation among the land records in the Office of the County Recorder for Orange County, after delivery to the Agency of two title insurance policies, insuring leasehold title pursuant to the Lease (Attachment No. 4) and the interest of the Agency by virtue of the Deed of Trust (Attachment No . 5) in conformity with Section 308 of this Agreement. The Escrow Agent shall also record any applicable subordination and non-disturbance and attornment agreements. 12-11-s7 7241k/2299/30 -10- � i 87-7fl�56a H. [ §308] Title Insurance Concurrently with recordation of the Lease (Attachment No. 4) and the Deed of Trust (Attachment No . 5 ) , First American Title Insurance Company (the "Title Company" ) , shall provide and deliver to the Agency a title insurance policy issued by the Title Company insuring that leasehold title to the Parking Facility (pursuant to the Lease [Attachment No. 4] ) is vested in the Agency and that the interest to be held by the agency pursuant to the Deed of Trust (Attachment No. 5) all is reposed in the Agency in the condition required by Section 306 of this Agreement. The Title Company shall provide the Agency with a copy of the title insurance policies for its leasehold interest pursuant to the Lease (Attachment No. 4) (based upon the amount of Two Million and Five Hundred Thousand Dollars ($2 , 500, 000) , and for its interest pursuant to the Deed of Trust (Attachment No . 5) , which shall be an ALTA lender' s policy for the amount of Two Million and Five Hundred Thousand Dollars ( $2, 500,000) . The Participant shall bear all costs for the foregoing title insurance policies. In the event that the Title Company will insure the interest of the Agency as provided herein to the same extent as set forth in this Section 308 as an update to policy issued to the Participant, such a policy may be utilized; provided, however, that the Agency shall be a named insured pursuant to such insurance policy. In the event the Participant seeks any title insurance policy for its benefit, all costs for such title insurance shall be borne solely by the Participant. I . [ §309 ] Condition of the Site The Participant, at Participant' s expense, shall perform any excavation, backfilling, demolition, removal of structures (including subsurface structures) , and grading necessary for the Public Improvements . If the soil conditions of the Site are not in all respects entirely suitable for the use or uses to which the Site will be put, then it is the sole responsibility and obligations of Participant to take such action as may be necessary to place the Site in a condition entirely suitable for the development of the Site . After the close of escrow, Participant agrees to indemnify and defend the City and/or Agency for any claims which may be asserted against the City and/or the Agency under the Comprehensive Environmental Response and Compensation and Liability Act, as amended, (42 U. S .C. §9601 et. _t . ) ( "CERCLA" ) , and the Resource Conservation and Recovery Act, (42 U. S.C. §6301 et. seq. ) which claims are based at least in part on the fact that the City and/or Agency held a leasehold interest in the Parking Facility. 12-11-87 7241k/2299/30 -11- • • 87�7o45s? J. [ §3101 Preliminary Work and Grading The Participant assumes full responsibility to obtain any necessary consents of affected property owners and tenants at its expense prior to undertaking any work on the Site. The Participant agrees to undertake such demolition, soil excavation, importation and compaction work as is necessary to prepare Site for the Public Improvements. The Participant shall save and protect the Agency and the City against any claims resulting from all preliminary work, access or use of the Site undertaken pursuant to this Section 310. Copies of data, surveys and tests obtained or made by the Participant on the Site pursuant to this Section 310 shall be filed with the Agency within fifteen ( 15) days after receipt by the Participant. Any preliminary work by the Participant shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. IV. [ §400] DEVELOPMENT OF THE SITE A. [ §401 ] Scope of Development The Participant shall commence and complete construction of the Public Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 3 ) . The Participant additionally assumes all responsibility to cause the timely commencement and completion of the "Site Grading" , as hereinafter set forth in Section 310 of this Agreement. The Parking Facility and Public Improvements shall be developed as provided in the "Attachment No. 5" , which is attached hereto as the Scope of Development and is incorporated herein. The development shall include any plans and specifications submitted to City and/or Agency for approval, and shall incorporate or show compliance with all applicable mitigation measures. B. [ §402 ] Site Plan By the respective times set forth therefor in the Schedule of Performance (Attachment No. 3 ) , the Participant shall prepare and submit to the Agency for its approval any modifications to the approved plans for development of the Site in sufficient detail to enable the Agency to evaluate the 12-11-87 7241k/2299/30 -12- • 87-70466?- proposal for conformity to the requirements of this Agreement. The Site shall be developed as established in this Agreement and such documents except as changes may be mutually agreed upon between the Participant and the Agency. Any such changes shall be within the limitations of the Scope of the Development (Attachment No. 5) . C. [ §403 ] Construction Drawings and Related Documents By the time set forth therefor in the Schedule of Performance (Attachment No. 3) , the Participant shall prepare and submit to the City, construction drawings, landscape plan, and related documents for development of the Site for written approval . Approval of the drawings and specifications, as provided in the Schedule of Performance (Attachment No. 3 ) , will be granted by the City if they conform to Site Plan theretofore approved. Any items so submitted and approved in writing by the City shall not be subject to subsequent disapproval . During the preparation of all drawings and plans, staff of the Agency, City, and the Participant shall hold regular progress meetings to coordinate the preparation of, submission to, and review of drawings, plans and related documents by the Agency. The staff of Agency, City, and the Participant shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the Agency or City can receive prompt and speedy consideration. The Participant shall be obligated to obtain all City approvals required for the construction of the Public Improvements. D. [ §404] City_ Approval of Plans, Drawings, and Related Documents The City shall have the right of planning review of all plans and submissions including any changes therein. Provided that the submissions by the Participant are made timely and are complete, the City shall approve or disapprove the plans, drawings and related documents referred to in Sections 403 and 404 of this Agreement within the times established in the Schedule of Performance (Attachment No. 3) . Any disapproval shall state in writing the reasons for disapproval. The Participant, upon receipt of a disapproval based upon powers reserved by the City hereunder, shall revise such portions and resubmit to the City as soon as possible after receipt of the notice of disapproval as provided in the Schedule of Performance (Attachment No. 3 ) . 12-11-87 7241k/2299/30 -13- • • 87-704662 The City shall advise the Participant within ten ( 10) days of any submittal of plans or drawings if the submittal is not complete or not in accordance with City/Agency procedures. If the City determines that such a submittal is not complete or not in accordance with procedures, such tender shall not be deemed to constitute a submittal for purposes of satisfying the Schedule of Performance (Attachment No. 3 ) . If the Participant desires to make any substantial changes in the construction plans after their approval by the City, the Participant shall submit the proposed change to the City for its approval . The City shall approve or reject the proposed change and notify the Participant in writing within 30 days after submission to the City. E. [ §405 ) Cost of Construction All the costs of site preparation and developing the Public Improvements and developing the Site and constructing all improvements thereon shall be borne solely by the Participant. F. [ §406 ] Construction Schedule The Participant shall promptly begin and thereafter diligently prosecute to completion the construction of the Public Improvements, with all construction commencing and being completed within the times specified therefor in the Schedule of Performance (Attachment No. 3) . G. [ §4071 Bodily Injury and Property Damage Insurance The Participant shall defend, assume all responsibility for and hold the Agency, its officers and employees, harmless from, all claims or suits for, and damages to, property and injuries to persons, including accidental death ( including attorneys fees and costs) , which may be caused by any of the Participant' s activities under this Agreement, whether such activities or performance thereof be by the Participant or anyone directly or indirectly employed or contracted with by the Participant and whether such damage shall accrue or be discovered before or after termination of this Agreement, The Participant shall take out and maintain throughout the period set forth in this Section 408, a comprehensive liability policy in the amount of Two Million. Dollars ($2 , 000, 000) combined single limit policy, including contractual liability, as shall protect the Participant, City and Agency from claims for such damages. 12-11-87 7241k/2299/30 -14- 0 S7-7o4562 The Participant shall furnish a certificate of insurance countersigned by an authorized agent of the insurance carrier on a form of the insurance carrier setting forth the general provisions of the insurance coverage. This countersigned certificate shall name the City and the Agency and their respective offices, agents, and employees as additional insureds under the policy. The certificate by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City and the Agency of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination. Coverage provided hereunder by the Participant shall be primary insurance and not contributing with any insurance maintained by the Agency or City, and the policy shall contain such an endorsement. The insurance policy or the certificate of insurance shall contain a waiver of subrogation for the benefit of the City and the Agency. The required certificate shall be furnished by the Participant at the time set forth therefor in the Schedule of Performance (Attachment No. 3 ) . The Participant shall also furnish or cause to be furnished to the Agency evidence satisfactory to the Agency that any contractor with whom it has contracted for the performance of work on the Site or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. The obligations set forth in this Section 407 shall remain in effect only until the date of issuance of a final Certificate of Completion for the Parking Facility and all of the Public Improvements as hereafter provided in Section 422 of this Agreement. H. [ §408 ] City and Other Governmental Agency Permits Before commencement of construction or development of any buildings, structures or other works of improvement upon the Site or within the Project Area, the Participant shall, at its 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 such construction, development or work. It is understood that the Participant' s obligation is to pay all necessary fees and to timely submit to the City final drawings with final corrections to obtain a building permit; the Agency will, without obligation to incur liability or expense therefor, use its best efforts to expedite issuance of building permits and certificates of occupancy for construction that meets the requirements of the City Code. 12-11-87 7241k/2299/30 -15- 1 . [ §409 ] Rights of Access For the purpose of assuring compliance with this Agreement, representatives of the Agency and the City shall have the right of access to all portions of the Site in which the Participant shall have an ownership interest, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in constructing the improvements, so long as they comply with all safety rules. Such representatives of the Agency or of the City shall be those who are so identified in writing by the Executive Director of the Agency. The Agency shall indemnify, defend and hold the Participant harmless from and against any bodily injury or related damages arising out of the activities of the Agency and the City as referred to in this Section 409 including but not limited to, claims, causes of action, liability, loss, cost or expense ( including reasonable attorneys' fees) in connection therewith. The Participant and the Agency agree to cooperate in placing and maintaining on the Site one sign indicating the respective parts of the Participant and the Agency in the Project. The cost of the sign shall be borne solely by the Participant. J. [ §4101 Local, State and Federal Laws The Participant shall carry out the construction of the improvements in conformity with all applicable laws, including all applicable federal immigration laws and federal and state labor standards, provided, however, Participant and its contractors, successors, assigns, transferees, and lessees are not waiving their rights to contest any such laws, rules or standards. K. [ §4111 Antidiscrimination During Construction The Participant, for itself and its successors and assigns, agrees that in the construction of the improvements provided for in this Agreement, the Participant will not discriminate against any employee or applicant for employment because of race, color, creed, religion, age, sex, marital status, handicap, national origin or ancestry. L. 1 §413 ] Taxes, Assessments, Encumbrances and Liens The Participant shall pay when due all real estate taxes and assessments on the Site whether levied before or after the Lease Transfer. Prior to issuance of a Certificate 12-11-87 7241k/2299/30 -16- 87-70466? of Completion pursuant to Section 422, the Participant shall not place on the Site or any part thereof any mortgage, trust deed, encumbrance or lien other than as expressly allowed by this Agreement, including, without limitation, the Lease (Attachment No. 4) . The Participant shall remove or have removed any levy or attachment made on any of the Site or any part thereof, or assure the satisfaction thereof within a reasonable time but in any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit the Participant from contesting the validity or amounts of any tax assessment, encumbrance or lien, nor to limit the remedies available to the Participant in respect thereto. M. [ §414] Prohibition Against Transfer of the Site, the Buildings or Structures Thereon and Assignment of Agreement Prior to the issuance by the appropriate governmental authority of a Certificate of Completion (pursuant to Section 422 of this Agreement) as to any building or structure, the Participant shall not, except as permitted by this Agreement, without prior approval of the Agency, make any total or partial sale, transfer, conveyance, assignment or lease of the whole or any part of the Site or of the buildings or structures on the Site . This prohibition shall not be deemed to prevent construction loans allowable pursuant to Section 416, the granting of temporary or permanent easements or permits to facilitate the development of the Site or to prohibit or restrict the leasing of any part or parts of a building or structure for occupancy for a term commencing upon completion. N. [ §415 ] Mortgage, Deed of Trust, Sale and Lease-Back Financing; Rights of Holders 1 . [ §416 ] No Encumbrances Except Mortgages, Deeds of Trust_, or Sale and Lease-Back for Development Mortgages, deeds of trust and sales and leases-back are to be permitted before completion of the construction of the improvements pursuant to this Section 416, but only for the purpose of securing loans of funds to be used for financing the construction of improvements on the Site, permanent financing, and any other purposes necessary and appropriate in connection with development under this Agreement. The Participant shall notify the Agency in advance of any mortgage, deed of trust or sale and lease-back financing, if the Participant proposes to enter into the same before completion of the construction of the improvements on 12-11-87 7241k/2299/30 -17- • 0 .� 6? $z �o the Site. The words "mortgage" and "trust deed" as used hereinafter shall include sale and lease-back. The Participant shall not enter into any such conveyance for financing without the prior written approval of the Agency, which approval Agency agrees to give if any such conveyance for financing is given to a responsible lender. 2 . [ §4171 Holder Not Obligated to Construct Improvements The holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this Agreement to construct or complete the improvements or to guarantee such construction or completion. Nothing in this Agreement shall be deemed to construe, permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. 3 . [ §418 ] Notice of Default to Mortgagee or Deed of Trust Holders; Right to_ Cu g re With respect to any mortgage or deed of trust granted by Participant as provided herein, whenever the Agency shall deliver any notice or demand to Participant with respect to any breach or default by the Participant in completion of construction of the improvements, the Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, within thirty (30) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and pursue with due diligence any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the improvements (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed the Participant' s obligations to the agency by written agreement satisfactory to the Agency. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates, and submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of Section 422 of this Agreement, to a Certificate of Completion ( as therein defined) . 12-11-87 7241k/2299/30 -18- • • 87-70466? 4. [ §419 ) Failure of Holder to Complete Improvements Subject to the provisions of Section 603 of this Agreement, in any case where, thirty (30) days after default by the Participant in completion of construction of improvements under this Agreement, the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof has not exercised the option to construct, or if it has exercised the option and has not proceeded diligently with construction, the Agency may purchase the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership of the Participant Parcel or any part thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: a. The unpaid mortgage or deed of trust debt at the time title became vested in the holder ( less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings) ; b. All expenses with respect to foreclosure; C . The net expense, if any (exclusive of general overhead) , incurred by the holder as a direct result of the subsequent management of the Site or part thereof; d. The costs of any improvements made by such holder; e. An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency; and f. Any customary prepayment charges imposed by the lender pursuant to its loan documents and agreed to by the Participant. 12-11-87 7241k/2299/30 -19- 8770fi 5 . ( §420 ] Right of the Agency to Cure Mortgage or Deed of Trust Default In the event of a mortgage or deed of trust default or breach by the Participant prior to the completion of the construction of the improvements on the Site or any part thereof and the holder of any mortgage or deed of trust has not exercised its option to construct, the Agency may cure the default. In such event, the Agency shall be entitled to reimbursement from the Participant of all proper costs and expenses incurred by the Agency in curing such default. The Agency shall also be entitled to a lien upon the Site and the Site to the extent of such costs and disbursements. Any such lien shall be subject and subordinate to the construction financing mortgages or deeds of trust. O. [ §421 ] Right of the Agency to Satisfy Other Liens on the Site After Title Passes After the conveyance of Leasehold interest to Agency and prior to the completion of construction, and after the Participant has had written notice and has failed after a reasonable time, but in any event not less than fifteen ( 15) days, to challenge, cure, adequately bond against, or satisfy any liens or encumbrances on the Site which are not otherwise permitted under this Agreement, the Agency shall have the right but no obligation to satisfy any such liens or encumbrances . P . [ §422 ] Certificate of Completion Promptly after completion of all construction and development required by this Agreement to be completed by the Participant upon the Site in conformity with this Agreement, the Agency shall furnish the Participant with a Certificate of Completion upon written request therefor by the Participant. Such Certificate shall be substantially in the form of Attachment No. 7 hereto. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion shall be a conclusive determination of satisfactory completion of the construction required by this Agreement upon the Site and the Certificate of Completion shall so state. After recordation of such Certificate of Completion, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest therein shall not (because of such ownership, purchase, lease or acquisition) , incur any obligation or liability under this Agreement except as provided in the Lease (Attachment No. 4) or other documents establishing covenants on the Site in accordance with the provisions of Section 401 of this Agreement, which shall be applicable according to its terms. 12-11-87 7241k/2299/30 -20- • • 87-76466? If the Agency refuses or fails to furnish a Certificate of Completion for the Public Improvements after written request from the Participant, the Agency shall, within thirty (30) days of written request therefor, provide the Participant with a written statement of the reasons the Agency refused or failed to furnish a Certificate of Completion. The statement shall also contain Agency' s opinion of the actions of the Participant must take to obtain a Certificate of Completion. If the reason for such refusal is confined to the immediate availability of specific items of materials for landscaping, the Agency will issue its Certificate of Completion upon the posting of a bond or an unconditional letter of credit ( in form and substance reasonably acceptable to the Agency and its legal counsel) by the Participant with the Agency in an amount representing a fair value of the work not yet completed. If the Agency shall have failed to provide such written statement within said thirty (30) day period, the Participant shall be deemed entitled to the Certificate of Completion. Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Participant to any holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the improvements, or any part thereof. Such Certificate of Completion is not a notice of completion as referred to in the California Civil Code, Section 3093 . V. [ §500 ] USE OF THE SITE A. [ §501 ] Uses The Participant covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Site or any part thereof, that during construction and thereafter, the Participant, such successors and such assignees, shall devote the Site to the uses specified in the Redevelopment Plan, and this Agreement for the periods of time specified therein. No use other than the operation of a parking facility principally devoted to a combination of commuter and commercial parking shall be allowed on the Site without the prior written approval of the Agency (which approval the Agency may grant, deny, withhold, or grant subject to conditions, at its sole and absolute discretion) . The number of commuter and commercial parking spaces shall be based upon a determination of the parking spaces necessary for the commercial uses as determined by the City of San Juan Capistrano Municipal Code (the "Code" ) with the remainder of the spaces allocated to commuter use. This proportion shall be readjusted if a change in use of the commercial space requires 1211-87 7241k/2299/30 -21- • 8T-(0456? a greater or lesser number of parking spaces under the Code. However, in no event shall the number of commuter spaces be less than one hundred ( 100) . The parking must be used for public purposes and shall be considered to be used for public purposes as long as it is open and available to the public on an equal basis. The foregoing covenants shall run with the land. The Participant covenants by and for itself and any successors in interest 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, age, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Participant itself or any person claiming under or through it 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 Site. The foregoing covenants shall run with the land. The Participant shall refrain from restricting the rental, sale or lease of the Site on the basis of race, color, creed, religion, sex, marital status, handicap, 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 or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, age, handicap, 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 herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " 1.2-11-87 7241k/2299/30 -22- BT-70466?- 2 . In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: "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, handicap, age, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased. " 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, age, handicap, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises. " Except for covenants against discrimination or segregation, which shall continue in effect in perpetuity, the covenants set forth in this Section 501 shall remain in effect until the termination date of the Redevelopment Plan. Each of the Participant shall be jointly and severally liable in the event of noncompliance with this Section 501. B. [ §502 ] Maintenance and Operation of Facility Agency and Participant shall jointly select and enter into a Maintenance and Operation Agreement with a qualified management company for maintenance and operation of the structure by the time designated in the Schedule of Performance 12-11-87 7241k/2299/30 -23- 8T-T0466? (Attachment No. 3 ) . The cost of the common area maintenance ( "CAM" ) charges shall be allocated between the Agency and the Participant in proportion both to the ratio of commuter parking spaces and the commercial spaces and the commuter parking days of Monday through Friday and hours of 6: 00 AM to 6: 00 PM. The following equation expresses this ratio: Agency' s portion (# of Commuter (# of working of CAM charges = _Spaces) (12 hrs) days in month) Total CAM charges (Total # of ( 17 hrs) (# of days in Spaces) month) The number of commuter parking spaces and commercial parking spaces shall be determined as specified in §501 of this Agreement. Collection of fees shall be handled by th operator of the structure or as otherwise agreed between the parties and distributed, based on a 50/50 division, to the Participant and the Agency on a quarterly basis after the CAM charge has been satisfied. Issuance of a Certificate of Completion by the Agency shall not affect Participant' s obligations under this section. C. [ §503 ] Ri hts of Access The Agency, for itself and for the City and other public agencies, at their sole risk and expense, reserves the right to enter the Site or any part thereof which is owned or controlled by the Participant, at all reasonable times for the purpose of construction, reconstruction, maintenance, repair or service of any public improvements or public facilities located on the Site. Any such entry shall be made only after reasonable notice to Participant, and Agency shall indemnify and hold Participant harmless from any costs, claims, damages or liabilities pertaining to any entry. This Section 503 shall not be deemed to diminish any rights the Agency, the City, or any other public agencies may have without reference to this Section 503 . D. [ §504] Effect of Violation_ of the Terms and Provisions of this Agreement After Completion of Construction The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own rights and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this 12-11-87 7241k/2299/30 -24- 8T-To45s? Agreement and the covenants running with the land have been provided. The Agreement and the covenants shall run in favor of the Agency, without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Site or in the Project Area. The Agency shall have the right, if the Agreement or covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled. After issuance of a Certificate of Completion for all grading and improvements to be completed by the Participant pursuant to this Agreement, all of the terms, covenants, agreements and conditions set forth in this Agreement relating to the Site shall cease and terminate as to what portion of the Site for which the Certificate of Completion is issued, excepting only the provisions listed below which shall survive as follows: (a) Sections 409, 501, 502 and 503 relating to Uses, Maintenance and Access . (b) Section 407 (relating to indemnification and insurance) shall remain in effect in accordance with the terms and conditions set forth therein. (c ) Sections 700 to 707 and 713 to 715 (relating to rights and remedies) shall remain in effect to the extent necessary to enforce other provisions of this Agreement. (d) The Lease (Attachment No. 4) and Section 301 of this Agreement shall remain enforceable according to their terms. VI . [ §600] GENERAL PROVISIONS A. [ §601 ] Notices, Demands and Communications Between the Parties - Written notices, demands and communications between the Agency, the Participant shall be sufficiently given if delivered by hand (and a receipt therefor is obtained or is refused to be given) or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency, the Participant. 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 601 . Notwithstanding the foregoing, notice by the Agency to either the Participant shall be deemed to constitute notice to both the Participant. 12-11-87 7241k/2299/30 -25- 87-70466? Any written notice, demand or communication shall be deemed received immediately if delivered by hand and shall be deemed received on the tenth day from the date it is postmarked if delivered by registered or certified mail. B. [ §602 ] Conflicts of Interest No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. No member, official or employee of the Agency shall be personally liable to the Participant, or any successor in interest, in the event of any default or breach of the Agency, or for any amount which may become due to the Participant or successor or on any obligations under the terms of this Agreement. Each of the Participant warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. C. [ §603 Enforced Delay; Extension of Times Performance In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement and the Attachments hereto shall be extended, where delays or defaults are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure permits (if the inability to secure permits is not the fault of the participant), necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts or omissions of the other party; acts or failures to act of the City of San Juan Capistrano or any other public or governmental agency or entity (other than the acts or failures to act of the Agency which 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. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall 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 extensions is sent to the other party within thirty (30) days of 12-11-87 7241k/1199/30 -26- 87-70456 the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Agency and Participant. Notwithstanding the foregoing portion of this Section 603, the Participant is not entitled pursuant to this Section 603 to an extension of time to perform because of ( i) past, present, or future difficulty in obtaining suitable temporary or permanent financing for the development of the Site. D. [ §6041 Nonliability of Officials and Em to ees of the Agency No member, official or employee of the Agency or the City shall be personally liable to the Participant, or any successor in interest, in the event of any default or breach by the Agency (or the City) or for any amount which may become due to the Participant or its successors, or on any obligations under the terms of this Agreement. VII . [ §700] DEFAULTS AND REMEDIES A. [ §701 ] Defaults -- Genera-1 Subject to the extensions of time set forth in Section 603 , 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 diligence. The injured party shall give written notice of default to the party in default, as well as other persons or entities entitled to notice hereunder, specifying the default complained of by the injured party. Except as required to protect against further damages, the injured party may not institute proceedings against the party in default until thirty (30) days after giving such notice or, provided that the party is proceeding with diligence to cure, such greater time as may be necessary to cure given the nature of the default. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. B. [ §702 ] Legal Actions 1 . [ §703 ] Institution of Legal Actions In addition to any other rights or remedies and subject to the restrictions in Section 701, either party may institute legal action to cure, correct or remedy any default, 12-11-87 7241k/2299/30 -27- BT-T0466? to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Orange, State of California, in an appropriate municipal court in that county, or in the Federal District Court in the Central District of California. 2 . [ §704] Applicable Law The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 3 . [ §705 ] Acceptance of Service of Process In the event that any legal action is commenced by the Participant against the Agency, service of process on the Agency shall be made by personal service upon the Director 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 Participant, service of process on the Participant shall be made by personal service upon the general partner of the Participant and shall be valid whether made within or without the State of California or in such other manner as may be provided by law. C. [ §706 ] 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 or different times, of any other rights or remedies for the same default or any other default by the other party. D. [ §707 ] Inaction Not a Waiver of Default Any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such 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. E. [ §708] Remedies and Rights of Termination 1 . [ §709 ] Damages. If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party 12-11-87 7241k/2299/30 -28- 087-704662 shall serve written notice of such default upon the defaulting party. If the default is not cured or commenced to be cured by the defaulting party within thirty (30) days after service of the notice of default (or within such other period as is set forth herein) , the defaulting party shall be liable to the other party for any damages caused by such default. 2 . [ §710 ] Specific Performance If either party defaults under any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not cured by the defaulting party within thirty (30) days of service of the notice of default, or such other time limit as may be set forth herein with respect to such default, the non-defaulting party at its option may thereafter (but not before) commence an action for specific performance of terms of this Agreement. 3 . [ §711 ] Termination by the Participant In the event that prior to the time established for the Lease Transfer in the Schedule of Performance (Attachment No. 3 ) , the Participant is not in default of this Agreement and has satisfied all of the Conditions Precedent ( as set forth in Section 302 of this Agreement) , but the Agency nevertheless fails to execute the Lease (Attachment No. 4) by the time established therefor in the Schedule of Performance (Attachment No . 3 ) then this Agreement shall, at the option of the Participant, be terminated by written notice thereof to the Agency. A termination under this Section 711 shall not prevent the Participant from pursuing any claim for damages or specific performance to which it might otherwise be entitled. 4. [ §712 ] Termination by the Agency In the event that prior to the Leasehold Conveyance: (a) The Participant (or any successor in interest) assigns or attempts to assign the Agreement or any rights therein or in the Site in violation of this Agreement; or (b) There is a change in the ownership of the Participant contrary to the provisions of Section 109 hereof; or 12-11-s7 7241k/2299/30 -29- • i a�WTa�as? (c) The Participant does not submit certificates of insurance, construction plans, drawings and related documents as required by this Agreement, in the manner and by the dates respectively provided in this Agreement therefor any such default or failure shall not be cured within forty-five (45) days after the date of written demand therefor by the Agency; or (d) The Participant fails to satisfy all Conditions Precedent (as set forth in Section 302 of this Agreement) by the time established therefor in the Schedule of Performance (Attachment No. 3 ) ; or (e) The Participant fails to provide proof to the Agency by the date established for the Agency Conveyance by the Schedule of Performance (Attachment No. 3 ) that the Participant has obtained binding loan commitments for construction financing for all of the Public Improvements; then this Agreement and any rights of the Participant or any assignee or transferee in the Agreement, or arising therefrom with respect to the Agency or the Site, shall, at the option of the Agency, be terminated by the Agency. A termination under this Section 712 shall not prevent the Agency from pursuing any claim for damages or specific performance to which it might otherwise be entitled. VIII . [ §800] SPECIAL PROVISIONS A. [ §801 ] Real Estate Commissions Each of the Agency, the Participant represents to the other party that it has not engaged the services of any finder or broker and that it is not liable for any real estate commissions, broker' s fees, or finder' s fees which may accrue by means of the acquisition of the Site, and agrees to hold harmless the other party from such commissions or fees as are alleged to be due from the party making such representations . B. [ §802 ] Successors In Interest The terms, covenants, conditions and restrictions of this Agreement shall extend to and shall be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties . 12-11-87 7241k/2299/30 -30- • 87-704552 Upon the termination of the restrictions imposed by Section 109 of this Agreement, which terminate upon the issuance by the Agency of a Certificate of Completion for all of the Public Improvements, all of the terms, covenants, conditions and restrictions of this Agreement which do not terminate upon the issuance by the Agency of the Certificate of Completion for the entire Site shall be deemed to be, and shall, constitute terms, covenants, conditions and restrictions running with the land. C. [ §803 ] Amendments to this Agreement The Participant and the Agency agree to mutually consider reasonable requests for amendments to this Agreement which may be made by lenders, or Agency' s counsel or financial consultants, provided said requests are consistent with this Agreement and would not substantially alter the basic business terms included herein. IX. [ §9001 ENTIRE AGREEMENT, WAIVERS This Agreement may be signed in counter-parts, and is executed in five ( 5) duplicate originals, each of which is deemed to be an original . This Agreement includes pages 1 through 34 and Attachments l through 8, which constitutes 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 or their predecessors in interest with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of the Agency, the Participant, and all amendments hereto must be in writing by the appropriate authorities of the Agency, the Participant. In any circumstance where under this Agreement either party is required to approve or disapprove any matter, approval shall not be unreasonably withheld. X. [ §1000 ] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY This Agreement, when executed by the Participant and delivered to the Agency, must be authorized, executed and delivered by the Agency on or before thirty (30) days after signing and delivery of this Agreement by Participant or this Agreement shall be void, except to the extent that the 12-11-87 7241k/2299/30 -31- 87-7066? Participant shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement. The date of this Agreement shall be the date when it shall have been signed by the Agency. IN WITNESS WHEREOF, the Agency and the Participant have signed this Agreement on the respective dates set forth below. December 15, 1987 SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY By: /--,— Chairman (9yy . Hausdorfer "AGENCY" ATTEST: Agency Se e ary Mary Ann anover APPROVED AS TO FORM: Thomas Clark Jr Stradling, occa, Car on & Rauth, Special Counsel to the Agency Agency Counsel FRANCI AN PLAZA INVESTMENT GROUP Paul Floyd Farber "PARTICIPANT" 12-11-87 7241k/2299/30 -32- 87-704662 CORPORATE ACKNOWLEDGMENT NO.202 State of California On this the 15th day of Decemb&x 19$Z, before me, SS. County of Orange Cheryl A, .Tnhncnn the undersigned Notary Public, personally appeared C'FI'ICIAL SEAL Gary L. Hausdorfer and Mary Ann i-Hannizer CHEf,YL A x personally known tome VAP n NOTARY Pu,,^L C - CAU O;`;dIA { I Z proved to me on the basis of satisfactory evidence P.iy c2r.::1. ex�i;e;T�('Jrll, 19E3 to be the person(s)who executed the within instrument as. munic a Chairman and Agency Sec. oron behalf of the%orpora in1herein munic al named,and acknowledged to me that the/Brporati n executed it. WITNESS my hand and official seal. Notary's SigtAture 7120 122 NATIONAL NOTARY ASSOCIATION * 23012 Ventura Blvd. • P.O.Box 4625 • Woodland Hills,GA 91365-4625 (SEAL) 12-11-87 7241k/2299/30 -33- ! �l4`'t1411 U, ::-i- Lo to awrrl.•.►aar i � _� � anarlw•c•nar.»o lug. �— \rr•r.w— L.r .... . ;j Z 04 Z ......�......� s-.. w...1.. �r r•� � lrMf !••\re f V "IC x V 1111-41,10 .accs94.09 ar '• �Y. Z � t fa qa•! 7� �y 1 , 1 1 tArrarcr�ar.aalw• 1 ( ,/-� ,. � a!1•Hra rY1Ulw• a• /• \•�f YSgI ° • !! � �� 0 ST-70466? ATTACHMENT NO. 2 LEGAL DESCRIPTION ( 121-150-20) LOT 40 OF TRACT NO. 103 AS SHOWN ON A MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THE WESTERLY 13 . 00 FEET OF SAID LOT, BEING A STRIP OF LAND 13 . 00 FEET IN WIDTH LYING EASTERLY AND CONTIGUOUS TO THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS DESCRIBED IN DEED RECORDED FEBRUARY 27, 1936 IN BOOK 807 PAGE 286 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM THAT PORTION THEREOF DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE NORTHERLY LINE OF LOT 42 OF SAID TRACT NO. 103 , SAID POINT BEING SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST 202 . 60 FEET FROM THE NORTHEAST CORNER OF SAID LOT 42; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42, SAID POINT BEING SOUTH 84 DEGREES 28 MINUTES 00 SECONDS WEST 201 . 44 FEET FROM THE SOUTHEAST CORNER OF SAID LOT 42 ; THENCE CONTINUING SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF LOT 41 OF SAID TRACT NO. 103 ; THENCE SOUTH 84 DEGREES 27 MINUTES WEST ALONG SAID SOUTHERLY LINE 35 . 00 FEET TO THE TRUE POINT OF BEGINNING; THENCE ALONG SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 9 . 50 FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM THE NORTHERLY LINE OF SAID LOT 40; THENCE WESTERLY PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM SAID NORTHERLY LINE TO A POINT IN THE WESTERLY LINE OF SAID LOT 40; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO THE NORTHWEST CORNER OF SAID LOT 40; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 40 TO THE TRUE POINT OF BEGINNING. ( 121-150-21 ) LOT 43 , AS SHOWN ON A LICENSED SURVEYOR' S MAP, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 2, PAGES 31 TO 38 INCLUSIVE, RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM THE WESTERLY 12 FEET. 12-11-87 7242k/2299/30 ATTACHMENT NO. 2 87--T04662 ( 121-150-22 ) THAT PORTION OF LOT 40 OF TRACT NO. 103, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE NORTHERLY LINE OF LOT 42 OF SAID TRACT NO. 103 , SAID POINT BEING SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST 202 . 60 FEET FROM THE NORTHEAST CORNER OF SAID LOT 42; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42, SAID POINT BEING SOUTH 84 DEGREES 28 MINUTES 00 SECONDS WEST 201 . 44 FEET FROM THE SOUTHEAST CORNER OF SAID LOT 42; THENCE CONTINUING SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF LOT 41 OF SAID TRACT 103 ; THENCE SOUTH 84 DEGREES 27 MINUTES WEST ALONG SAID SOUTHERLY LINE 15 . 00 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 9 . 50 FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM THE NORTHERLY LINE OF SAID LOT 40; THENCE LINE TO A POINT IN THE WESTERLY LINE OF SAID LOT 40; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO THE NORTHWEST CORNER OF SAID LOT 40; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 40 TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THE WESTERLY 13 .00 FEET OF SAID LOT, BEING A STRIP OF LAND 13 . 00 FEET IN WIDTH LYING EASTERLY OF AND CONTIGUOUS TO THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS DESCRIBED IN DEED RECORDED FEBRUARY 27, 1936 IN BOOK 807 PAGE 286 OF OFFICIAL RECORDS. ( 121-150-09 ) LOT 42 OF TRACT NO. 103 , IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 TO 30 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PROPERTY: BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 42 , SAID CORNER BEING ON THE WESTERLY PROPERTY LINE OF THE CALIFORNIA STATE HIGHWAY: THENCE NORTH 5 DEGREES 23 MINUTES 00 SECONDS WEST ALONG THE ABOVE MENTIONED PROPERTY LINE 136 . 88 FEET TO AN INTERSECTION WITH THE SOUTHERLY LINE OF GARDEN STREET: THENCE SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST ALONG THE SOUTHERLY LINE OF GARDEN STREET 202 . 60 FEET TO A POINT: THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT ON THE SOUTHERLY LINE OF THE ABOVE MENTIONED LOT 42 ; THENCE NORTH 84 DEGREES 28 MINUTES 00 SECONDS EAST ALONG THE SOUTHERLY LINE OF LOT 42, 201 . 44 FEET TO THE POINT OF BEGINNING. 12-11-87 7242k/2299/30 ATTACHMENT NO. 2 87-70466? ( 121-150-12 ) THAT PORTION OF LOT 41 OF TRACT NO. 1.03 , IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 41; RUNNING THENCE NORTH 9 DEGREES 40 MINUTES WEST 84.41 FEET ALONG THE WEST LINE OF SAID LOT 41 TO THE NORTHWEST CORNER THEREOF: THENCE NORTH 84 DEGREES 28 MINUTES EAST 41 . 13 FEET ALONG THE NORTHERLY LINE OF SAID LOT 41 TO A POINT WHICH IS LOCATED 201 . 44 FEET SOUTH 84 DEGREES 28 MINUTES WEST FROM THE SOUTHEAST CORNER OF LOT 42 OF SAID TRACT NO. 103 ; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 41; THENCE SOUTH 84 DEGREES 27 MINUTES WEST 35 . 55 FEET ALONG THE SOUTHERLY LINE OF SAID LOT 41 TO THE POINT OF BEGINNING. ( 121-150-10) THAT PORTION OF LOT 42 OF TRACT NO. 103 , IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BACK 11, PAGES 29 TO 33, INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS : BEGINNING TO THE MOST EASTERLY CORNER OF SAID LOT, SAID CORNER BEING IN THE WESTERLY PROPERTY LINE OF THE CALIFORNIA STATE HIGHWAY; THENCE NORTH 5 DEGREES 23 MINUTES 00 SECONDS WEST ALONG THE ABOVE MENTIONED PROPERTY LINE 136. 88 FEET TO AN INTERSECTION WITH THE SOUTHERLY LINE OF GARDEN STREET; THENCE SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST, ALONG THE SOUTHERLY LINE OF GARDEN STREET, 202 . 60 FEET TO A POINT; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42 ; THENCE NORTH 84 DEGREES 28 MINUTES 00 SECONDS EAST, ALONG THE SOUTHERLY LINE OF SAID LOT, 201 .44 FEET TO THE POINT OF BEGINNING, END 12-11-87 7242k/2299/30 ATTACHMENT NO. 2 ATTACHMENT NO. 3 SCHEDULE OF PERFORMANCE I. Owner Participation Agreement 1. Approval by Agency December 13, 1987. II. Plan Check/Construction Documents Processing 1. Owner submits adjusted final Within 43 days of OPA approval. plans for construction drawings grading and landscaping plans for theatre and retail. 2. City again reviews and returns Within 30 days of plan resubmittal plans to Participant for by Owner. for adjustments. 3. Owner resubmits adjusted plans. Within 30 days of City return of adjusted plans to Owner. 4. City again reviews and returns Within 30 days of plan resubmittal by plans to Owner for adjustment. Owner. S. Owner resubmits adjusted plans Within 30 days of City return of and originals for final approval. adjusted plans to Owner. 6. City returns approved plans to Within 30 days of Owner submittal of Owner. final plans. 7. Owner obtains building permit. Within 14 days after City approval of final plans. III. Escrow and Lease Execution 1. Escrow opened to convey Within 60 days of the OPA approval. leasehold title. 2. Execution of lease and Within 90 days of opening escrow. trust deed. 3. Commencement of lease. Upon issuance of the Certificate of Completion for the parking facility. 4. Close of escrow; commencement On the date of issuance of the of lease. Certificate of Completion for the parking facility. IV. Construction 1. Owner commences construction Within 90 days of issuance of building of parking structure and permits. public improvements. 2. Grading and excavation completed Within 120 days of commencement of and foundations laid for parking of construction. structure and public improvements. 3. Completion of construction of Within 180 days of completion of parking structure and public of Step 2. improvements. Issuance of Certificate of Completion. 4. Completion of construction of Within one year of completion of Phase I (north portion) of parking structure. retail/restaurant. Issuance of Certificate of Completion. 5. Completion of construction of Within one year of completion of theaters. Issuance of No. 4. Certificate of Completion. 6. Completion of construction of Within one year of completion of Phase II (south portion) of No. 5. retail/restaurant. Issuance of Certificate of Completion. V. Maintenance and Operation Agreement for Parking Facility 1. Begin selection of operator Within 90 days of issuance of building for parking facility. permits. 2. Complete selection of operator Within 60 days of commencement of of parking facility. construction. 3. Execution of Maintenance and Within 45 days of selection. Operation Agreement with selected operator. RJZ12872 -2- 8T-70466? ATTACHMENT NO. 4 Recording Requested By and } When Recorded Mail To: ) San Juan Capistrano Community ) Redevelopment Agency ) Attention: Executive Director ) 32400 Paseo Adelanto ) San Juan Capistrano, CA 92675 } (Space above for Recorder' s use only) LEASE THIS LEASE AGREEMENT is dated as of 198_ by and between FRANCISCAN PLAZA INVESTMENT GROUP, a California limited partnership, dated , 198_ (the "Lessor" ) and the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Lessee" ) . W I T N E S S E T H: That for and in consideration of the mutual promises and agreements herein contained, the parties hereto agree as follows: SECTION 1 : Definitions. Unless the context otherwise requires, the terms defined in this Section 1 shall , for all purposes of this Lease, have the meanings herein specified. Agreement "Agreement" means that owner participation agreement entered into between the Lessor and the Lessee for the disposition and development of various property (including without limitation that property described in Exhibit A to this Lease) , dated ; a copy of said Agreement, which is on file with the Lessee at its offices, is incorporated herein by reference . 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 1 of 16 87-764662 Base Rent "Base Rent" means that rent due for the Project as defined in Section 4(a) of this Lease. City "City" means the City of San Juan Capistrano, a municipal corporation. Lessee or Agency "Lessee" or "Agency" means the San Juan Capistrano Community Redevelopment Agency, a public body, corporate and politic. Lessor or Participant "Lessor" or "Participant" means Franciscan Plaza Investment Group, a California limited partnership. The Lessee shall be entitled to make payment to Franciscan Plaza Investment Group, which payment shall discharge its obligations for payment hereunder to the Lessor. Franciscan Plaza Investment Group shall be liable and responsible for all of the undertakings, duties and covenants of the Lessor set forth in this Lease or arising therefrom. Public Improvements "Public Improvements" means those improvements so described in the Agreement. Parking_ Facility "Parking Facility" means the structure to be completed on the Site as depicted on Attachment No. 1 to the Agreement. Redevelopment Plan "Redevelopment Plan" means the Redevelopment Plan which was approved, adopted and amended by the City Council of the City of San Juan Capistrano by Ordinance Nos. 509, 547 and 582 . Rental Period "Rental Period" means the period with respect to which Rent is payable pursuant to Section 4(a) of this Lease. 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 2 of 16 87-70466?, Site "Site" means that real property so described in the Agreement and the "Legal Description of the Site" which is attached hereto marked Exhibit "A" and incorporated herein by reference. Term "Term" means the period of fifty-five (55) years. SECTION 2 : Demised Premises, Ownership. The Lessor hereby leases the Parking Facility, when the same is constructed according to the Agreement, to the Lessee, subject to the terms and conditions of this Lease. SECTION 3 : Term. The Term of this Lease shall commence on the date of issuance of the Certificate of Completion for the Parking Facility. This Lease shall terminate at the end of the Term. This Lease, and any provisions hereof, shall not be extended without the express written approval of the Lessee which approval the Lessee may grant, withhold, or deny at its sole and absolute discretion. SECTION 4: Rent. The Lessee shall pay rent to the Lessor in the amounts, at the times and in the manner set forth herein, said amounts constituting in the aggregate the total of the annual rents payable under this Lease as follows: ( a) Rent. For each of the periods (the "Rental Periods" ) commencing six months from the issuance of the Certificate of Occupancy on the Parking Facility in conformity with the Agreement and continuing according to the schedule below for the first six 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) . In addition to the Base Rent, the Lessee agrees to pay to the Lessor Supplemental Rent for the first three Rental Periods according to the following table: 12-I1-87 ATTACHMENT NO. 4 7242k/2299/30 Page 3 of 16 87-704562 ENDING IN AMOUNT OF RENTAL PERIOD MONTH SUPPLEMENTAL RENT 1 6 $ 250, 000 2 18 225, 000 3 36 200, 000 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) ' 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 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 Agency of Equity Participation 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- (b) Payment. Payments of Rent shall be made in lawful money of the United States of America, by warrant or check drawn against funds of the Lessee. (c ) Consideration. The payments of Base Rent and, if applicable, Supplemental Rent, hereunder for each Rental Period for the term of this Lease, shall constitute the total rental for said Rental Period and shall be paid by the Lessee at the conclusion of said Rental Period. In addition to the rental, the parties agree as specified in the Agreement that Parking Revenue generated from commuter of other paid parking shall be divided between the Participant and the Agency. 12-11-67 ATTACHMENT NO. 4 7242k/2299/30 Page 4 of 16 87-704562 SECTION 5 : Construction of Project, Maintenance and Operation. No duties, other than those set out in the Agreement, with respect to the construction of any improvements on the Site or the maintenance of the Site or any improvements thereon, or to provide insurance or indemnities with respect to the use of the Site shall be deemed to be imposed upon the Lessee by virtue of this Lease. Lessor and Lessee shall enter into a maintenance and operation agreement with a qualified management company (the "Operator" ) . The cost of the common area maintenance ( "CAM" ) charges shall be allocated between the Agency and the Participant in proportion to a ratio which considers the number of commuter parking spaces and commuter hours and days of operation compared to the total operational use of the structure . Specifically the Agency portion of monthly CAM charges may be determined by utilizing the following formula: Agency' s portion (# of Commuter (# of working of CAM charges = Spaces) ( 12 hrs) days in month) Total CAM charges (Total # of (17 hrs) (# of days in Spaces) month) -Th- MJR�Mljm pet day . SECTION 6: Use. During the term of this Lease, subject to obtaining consent by lenders of record with encumbrances senior to the Agency' s rights pursuant to this Lease and subject to the terms of the maintenance and operation agreement as described in Section 5 of this Lease, the Lessee shall have the right to use the Site, and to assign its rights hereon or enter into a sublease to any public or nonprofit entity as it deems appropriate, in its sole discretion. Both parties acknowledge that the Parking Facility is burdened with a covenant which shall run with the land to provide for public use of the facility as defined in the Agreement. The proportion of commuter and commercial parking shall be as specified in §501 of the Agreement. SECTION 7: Insurance. Throughout the Term, the Lessor shall maintain or cause to be maintained at its cost the following policies of insurance: ( 1) insurance against loss or damage to the aboveground portion of the Facilities resulting from fire, earthquake, lightning, vandalism, malicious mischief and such 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 5 of 16 8T--T04662 perils ordinarily defined as "extended coverage" and such other perils as the Lessor and the Lessee may agree should be insured against, if such insurance is available from reputable insurers. In the event that Lessor determines that the earthquake portion of the insurance required in this Section 7 has become economically unreasonable to obtain, it may request relief from the Agency for this requirement and the Agency shall not unreasonably withhold its permission to modify this section if it determines in its sole discretion that such a requirement has become an economically unreasonable burden. Such insurance shall be maintained in an amount not less than the full insurable value of the Facilities subject to a "deductible clause" in the amount of Ten Thousand Dollars ($10, 000. 00) and shall contain an inflation guard endorsement. The term "full insurable value" as used in this Section shall mean the actual replacement cost "new" ; (2 ) public liability insurance against claims for bodily injury or death, or damage to property occurring upon, in or about the Project, such insurance to afford protection to a limit of not less than Two Million Dollars ($2 , 000, 000) combined single limit bodily injury and property damage with not greater than Ten Thousand Dollars ($10, 000) deductible; (3 ) worker' s compensation insurance, if applicable, issued by a responsible carrier authorized under the laws of the State of California to insure employers against liability for compensation under the Worker' s Compensation Insurance and Safety Act now in force in California, or any act hereafter enacted as an amendment or supplement thereto or in lieu thereof, such worker' s compensation insurance to cover all persons employed in connection with the Parking Facility and to cover full liability for compensation under any such act aforesaid, based upon death or bodily injury claims made by, for or on behalf of any person incurring or suffering injury or death during or in connection with the Parking Facility or the business of the Lessor and activities of the Lessee with respect to the Parking Facility. All insurance herein provided for shall be effected under policies issued by insurers of recognized responsibility, licensed or admitted to do business in the State of California. All policies or certificates shall name the Lessee, the City and the Lessor as named insureds, and shall include waivers of subrogation. All policies or certificates issued by the respective insurers for insurance shall provide that such policies or certificates shall not be cancelled or materially changed without at least 30 days' prior written notice to the Lessee, 12-11-87 ATTACHMENT N0. 4 7242k/2299/30 Page 6 of 16 r • BT-TO466? and shall carry loss payable endorsements in favor of the Lessee where applicable. Certified copies of such policies (or other evidence of coverage reasonably satisfactory to the Lessee) shall be deposited with the Lessee, together with appropriate evidence of payment of the premiums therefor; and, at least 10 days prior to the expiration dates of expiring policies or certificates, certified copies of renewal or new policies or certificates (or other evidence of coverage reasonably satisfactory to the Lessee) shall be deposited with the Lessee. In the event the Lessor fails to maintain the insurance required to be maintained hereunder, the Lessee following ten ( 10) days' written notice to Lessor shall have the right to procure and maintain such insurance and deduct such cost from the Rent otherwise payable pursuant to Section 4 of this Lease; provided that if all such Rent has been paid, the Lessor shall, within ten ( 10) days of receipt of notice by the Lessee, refund to the Lessee all such costs incurred by the Lessee, together with interest at the maximum rate allowable by law accruing from the expiration of the aforesaid ten ( 10) day notice period until the Lessee has been fully reimbursed with interest. SECTION 8: Damage by Casualty It is expressly understood and agreed that the rentals hereunder are in consideration of the right to occupy and use the Leased Premises throughout the entire Term, and, except as herein provided, it is the responsibility of the Lessor to provide such right at all times . In the event of destruction or damage to the Leased Premises by an insured casualty or events, where said insurance meets the criteria specified in Section 7 of this Lease, so that they become wholly or partly unusable, the Lessor shall rebuild and repair the Leased Premises so that they shall be restored to use, and this Lease shall remain in full force and effect. SECTION 9 : Eminent Domain. If the whole of the Leased Premises, or so much thereof as to render the remainder unusable for the purposes for which the same was constructed, shall be taken under the power of eminent domain then this Lease shall terminate as to only the portion of the Site so taken. If the remainder is usable for the Project purposes, then this Lease shall continue in full force and effect and shall not be terminated by virtue of such taking ( and the parties waive the benefit of any law to the contrary) . The Lessor shall be entitled to receive any and all proceeds of such condemnation award or settlement. 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 7 of 16 SECTION 10: Liens . In the event the Lessee subleases or assigns its interest in this Lease, the Lessee shall take reasonable steps to assure that liens do not attach to the Property by virtue of the activities of the Leasee or that any such liens are reasonably removed. SECTION 11: Taxes. and-_••ell st any-property tames rsas .er7 Ga the T va�aA Drrsm: dec ow any-•inteFe-st Q-f the Car. Aian Cap ctrano Community e?=_opment n.-.enpkr-r*u ..t to the r ea'6 It is understood between the parties that that portion of the Parking Facility which is dedicated to public commuter parking use and leased by the Agency should be exempt from the imposition of property tax and that therefore such taxes as are imposed should represent only the value of the commercial use of the Parking Facility. I€ it is determined that that portion of the Parking Facility which is dedicated to public commuter use is exempt from property tax, then the Lessor agrees to pay any property taxes assessed on the Leased Premises. If there is no such exemption the property taxes shall be included as part of the CAM charges and assessed against the Lessor and the Lessee according to the CAM charge allocation set out in Section 5 of this Lease. SECTION 12 : Quiet EnjoyLnent. The parties hereto mutually covenant and agree that the Lessee, by keeping and performing the covenants and agreements herein contained, shall at all times during the term, peaceably and quietly, have, hold and enjoy the Leased Premises. SECTION 13 : Lessor Covenants. In addition to those undertakings and covenants elsewhere set forth in this Lease by the Lessor, the Lessor covenants that Lessor shall cause the completion of the Public Improvements by the time established therefor in the Agreement. SECTION 14: Law Governing. This Lease is made in the State of California under the Constitution and laws of such State and is to be so construed. SECTION 15 : Notices. All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements, appointments or designations hereunder by either party to the other shall be in writing and shall be sufficiently given and served upon the other party, if sent by United States registered mail, return receipt requested, postage prepaid and addressed as follows: 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 8 of 16 0 87-T04662 Lessor - Franciscan Plaza Investment Group c/o Paul L. Farber and Associates 26300 La Alameda, Suite 470 Mission Viejo, California. 92691 Lessee - San Juan Capistrano Community Redevelopment Agency Attention: Executive Director 32400 Paseo Adelanto San Juan Capistrano, California 92675 SECTION 16: Default by Lessee; Termination. If the Lessee shall fail to pay any rental payable hereunder within sixty ( 60) days from the date such rental is payable, then the Lessee shall be deemed to be in default hereunder. If the Lessee should, after notice of default, fail to commence to remedy any default with all reasonable dispatch and shall thereafter fail to diligently prosecute the cure to completion, the Lessor after sixty (60) days' notice may re-enter, cure such breach and charge the Lessee therefor with interest thereof at the maximum rate permitted by law, and eject all parties in possession thereof therefrom. SECTION 17 : Assignment. The rights of the Lessee herein shall be for the benefit of the Lessee or a successor in interest to the Lessee or assignee which attorns to the Lessor. The Lessor shall accept such successor or assignee as a tenant hereunder on terms identical to those set forth in this Lease. Unless the Lessor expressly agrees to the contrary, the Lessee shall remain liable as a principal for payment of the Rent hereunder notwithstanding such assignment. SECTION 18: Execution. This Lease may be simultaneously executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all together shall constitute but one and the same Lease, and it is also understood and agreed that separate counterparts of this Lease may be separately executed by the Lessor and the Lessee, all with the same full force and effect as though the same counterpart had been executed simultaneously by both the Lessor and the Lessee . SECTION 19 : Validity. If any one or more of the terms, provisions, promises, covenants or conditions of this Lease shall to any extent be 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 9 of 16 8T-704562 adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions of this Lease shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. SECTION 20: Headings. Any headings preceding the texts of the several Sections hereof shall be solely for convenience of reference and shall not constitute a part of this Lease, nor shall they affect its meaning, construction or effect. SECTION 21 : Non-discrimination. The Lessee covenants by and for itself, its successors and assigns, and all persons claiming under or through it, 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, occupancy, tenure or enjoyment of the premises herein leased nor shall the Lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy, of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased. SECTION 22 : Subordination Lessee agrees to subordinate its rights under this Lease only to deeds of trust in favor of lenders providing construction or take out financing in connection with the Project, where said lender has executed a non-disturbance and attornment agreement in accordance with §306 of the Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed and attested by their proper officers thereunto duly authorized, and their official seals to be hereto affixed, all as of the day and year first above written. SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY By: Chairman "LESSEE" 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 10 of 16 r 8T-T04662- ATTEST: Secretary (SEAL) FRANCISCAN PLAZA INVESTMENT GROUP "LESSOR" 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 11 of 16 8T-7048fi2 STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) On this 198_, before me, a Notary Public, State of California, duly commissioned and sworn, personally appeared and known to me to be the Chairman and Secretary, respectively, of the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public corporation, that executed the within instrument on behalf of said public corporation therein named, and acknowledged to me that such public corporation executed the within instrument pursuant to a resolution of the Members of said public corporation. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year in this certificate first above written. (SEAL) 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 12 of 16 87--7048fi? STATE OF CALIFORNIA ss. COUNTY OF ORANGE ) On this day of 1987, before me, the undersigned, a Notary Public in and for said State, personally appeared 'A. known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument and who is known to me to be the general partner of FRANCISCAN PLAZA INVESTMENT GROUP, a general partnership, the general partnership that executed the within instrument, and acknowledged to me that he executed the within instrument on behalf of said partnership and that said partnership executed the same. WITNESS my hand and official seal. Notary Public Name (typed or printed) (SEAL) 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 13 of 16 0 67 '76466? EXHIBIT "A" LEGAL DESCRIPTION OF THE SITE ( 121-150-20) LOT 40 OF TRACT NO. 103 AS SHOWN ON A MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THE WESTERLY 13 . 00 FEET OF SAID LOT, BEING A STRIP OF LAND 13 .00 FEET IN WIDTH LYING EASTERLY AND CONTIGUOUS TO THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS DESCRIBED IN DEED RECORDED FEBRUARY 27, 2936 IN BOOK 807 PAGE 286 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM THAT PORTION THEREOF DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE NORTHERLY LINE OF LOT 42 OF SAID TRACT NO. 103 , SAID POINT BEING SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST 202 . 60 FEET FROM THE NORTHEAST CORNER OF SAID LOT 42; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135. 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42 , SAID POINT BEING SOUTH 84 DEGREES 28 MINUTES 00 SECONDS WEST 201. 44 FEET FROM THE SOUTHEAST CORNER OF SAID LOT 42; THENCE CONTINUING SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF LOT 41 OF SAID TRACT NO. 103 ; THENCE SOUTH 84 DEGREES 27 MINUTES WEST ALONG SAID SOUTHERLY LINE 15 . 00 FEET TO THE TRUE POINT OF BEGINNING; THENCE ALONG SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 9 . 50 FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM THE NORTHERLY LINE OF SAID LOT 40; THENCE WESTERLY PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM SAID NORTHERLY LINE TO A POINT IN THE WESTERLY LINE OF SAID LOT 40; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO THE NORTHWEST CORNER OF SAID LOT 40; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 40 TO THE TRUE POINT OF BEGINNING. ( 121-150-21 ) LOT 43, AS SHOWN ON A LICENSED SURVEYOR' S MAP, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 2 , PAGES 31 TO 38 INCLUSIVE, RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM THE WESTERLY 12 FEET. 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 14 of 16 • 87-704662 ( 121,150-22) THAT PORTION OF LOT 40 OF TRACT NO. 103, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE NORTHERLY LINE OF LOT 42 OF SAID TRACT NO. 103, SAID POINT BEING SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST 202 . 60 FEET FROM THE NORTHEAST CORNER OF SAID LOT 42; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42, SAID POINT BEING SOUTH 84 DEGREES 28 MINUTES 00 SECONDS WEST 201. 44 FEET FROM THE SOUTHEAST CORNER OF SAID LOT 42; THENCE CONTINUING SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF LOT 41 OF SAID TRACT 103 ; THENCE SOUTH 84 DEGREES 27 MINUTES WEST ALONG SAID SOUTHERLY LINE 15 . 00 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 9 . 50 FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM THE NORTHERLY LINE OF SAID LOT 40; THENCE LINE TO A POINT IN THE WESTERLY LINE OF SAID LOT 40; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO THE NORTHWEST CORNER OF SAID LOT 40; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 40 TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THE WESTERLY 13 . 00 FEET OF SAID LOT, BEING A STRIP OF LAND 13 . 00 FEET IN WIDTH LYING EASTERLY OF AND CONTIGUOUS TO THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS DESCRIBED IN DEED RECORDED FEBRUARY 27 , 1936 IN BOOK 807 PAGE 286 OF OFFICIAL RECORDS . ( 121-150-09 ) LOT 42 OF TRACT NO. 103 , IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 TO 30 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PROPERTY: BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 42 , SAID CORNER BEING ON THE WESTERLY PROPERTY LINE OF THE CALIFORNIA STATE HIGHWAY: THENCE NORTH 5 DEGREES 23 MINUTES 00 SECONDS WEST ALONG THE ABOVE MENTIONED PROPERTY LINE 136. 88 FEET TO AN INTERSECTION WITH THE SOUTHERLY LINE OF GARDEN STREET: THENCE SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST ALONG THE SOUTHERLY LINE OF GARDEN STREET 202 . 60 FEET TO A POINT: THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT ON THE SOUTHERLY LINE OF THE ABOVE MENTIONED LOT 42; THENCE NORTH 84 DEGREES 28 MINUTES 00 SECONDS EAST ALONG THE SOUTHERLY LINE OF LOT 42, 201 . 44 FEET TO THE POINT OF BEGINNING. 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 15 of 16 87- 704882 ( 121-150-12 ) THAT PORTION OF LOT 41 OF TRACT NO. 103, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 41; RUNNING THENCE NORTH 9 DEGREES 40 MINUTES WEST 84.41 FEET ALONG THE WEST LINE OF SAID LOT 41 TO THE NORTHWEST CORNER THEREOF: THENCE NORTH 84 DEGREES 28 MINUTES EAST 41 . 13 FEET ALONG THE NORTHERLY LINE OF SAID LOT 41 TO A POINT WHICH IS LOCATED 201 . 44 FEET SOUTH 84 DEGREES 28 MINUTES WEST FROM THE SOUTHEAST CORNER OF LOT 42 OF SAID TRACT NO. 103; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 41; THENCE SOUTH 84 DEGREES 27 MINUTES WEST 35 . 55 FEET ALONG THE SOUTHERLY LINE OF SAID LOT 41 TO THE POINT OF BEGINNING. ( 121-150-10) THAT PORTION OF LOT 42 OF TRACT NO. 103, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BACK 11, PAGES 29 TO 33 , INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: BEGINNING TO THE MOST EASTERLY CORNER OF SAID LOT, SAID CORNER BEING IN THE WESTERLY PROPERTY LINE OF THE CALIFORNIA STATE HIGHWAY; THENCE NORTH 5 DEGREES 23 MINUTES 00 SECONDS WEST ALONG THE ABOVE MENTIONED PROPERTY LINE 136.88 FEET TO AN INTERSECTION WITH THE SOUTHERLY LINE OF GARDEN STREET; THENCE SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST, ALONG THE SOUTHERLY LINE OF GARDEN STREET, 202 . 60 FEET TO A POINT; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42 ; THENCE NORTH 84 DEGREES 28 MINUTES 00 SECONDS EAST, ALONG THE SOUTHERLY LINE OF SAID LOT, 201 . 44 FEET TO THE POINT OF BEGINNING. END 12-11-87 ATTACHMENT NO. 4 7242k/2299/30 Page 16 of 16 UT-704662 ATTACHMENT NO. 5 RECORDING REQUESTED BY ) AND WHEN RECORDED MAIL TO ) AND MAIL TAX STATEMENTS TO: ) San Juan Capistrano Community ) Redevelopment Agency ) 32400 Paseo Adelanto ) San Juan Capistrano, CA 92675 ) Attn: Executive Director ) (Space above for Recorder) DEED OF TRUST AND ASSIGNMENT OF RENTS (Orange County) THIS DEED OF TRUST AND ASSIGNMENT OF RENTS is made as of this day of , 1987 by and among FRANCISCAN PLAZA INVESTMENT GROUP, a California limited partnership (the "Trustor" ) , FIRST AMERICAN TITLE INSURANCE COMPANY (the "Trustee" ) , whose address is 114E Fifth Street, Santa Ana, California 92701, and the SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, whose address is 32400 Paseo Adelanto, San Juan Capistrano, California 92675 (the "Beneficiary" ) . FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, the property where a parking facility and public improvements shall be constructed according to that certain Owner Participation Agreement entered into among the Trustor and the Beneficiary as of (the "Agreement" ) , incorporated by reference herein. Said property is located in the County of Orange, State of California. That property is described in Exhibit A, attached hereto and by this reference incorporated herein (the "Property" ) . TOGETHER WITH all rents, issues, profits, royalties, income and other benefits derived from the Property (collectively, the "rents" ) , provided that so long as Trustor is not in default hereunder, it shall be permitted to collect rents and operate the Project, as hereinafter defined, in accordance with the requirements of the Agreement; 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 1 of 19 8T-T05fi2 TOGETHER WITH all interests, estates or other claims, both in law and in equity which Trustor now has or may hereafter acquire in the Property and the rents; TOGETHER WITH all easements, rights-of-way and rights used in connection therewith or as a means of access thereto, including, without limiting the generality of the foregoing, all tenements, hereditaments and appurtenances thereof and thereto; TOGETHER WITH any and all buildings and improvements now or hereafter erected thereon, and all property of the Trustor now or hereafter affixed to or placed upon the Property, including, without limitation, all fixtures, attachments, appliances, furnishings, equipment and machinery (whether fixed or movable) and other articles ( including, in each instance, improvements, restorations, replacements, repairs, additions, accessions or substitutions thereto or therefor) ; TOGETHER WITH all leasehold estate, right, title and interest of Trustor in and to all leases or subleases covering the Property or any portion thereof now or hereafter existing or entered into, and all right, title and interest of Trustor thereunder, including, without limitation, all cash or security deposits, advance rentals, and deposits or payments of similar nature; TOGETHER WITH all right, title and interest of Trustor in and to all options to purchase or lease the Property or any portion thereof or interest therein, and any greater estate in the Property owned or hereafter acquired; TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with the Property; TOGETHER WITH all the estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity, including, but not limited to, all deposits made with or other security given by Trustor to utility companies, the proceeds from any or all of such property, including the Property, claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by any proceeding or purchase in lieu thereof of the whole or any part of such property, including without limitation, any awards resulting from a change of grade of streets and awards for severance damages; 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 2 of 19 All of the foregoing, together with the Property, is herein referred to as the "Security" . FOR THE PURPOSE OF SECURING: (a) The performance by Trustor of all of those obligations incurred as the Participant in the Agreement; (b) Payment of any sums advanced by Beneficiary to protect the Security pursuant to the terms and provisions of this Deed of Trust following a breach of any of Trustor' s obligations which may impact the security and the expiration of any applicable cure period and upon five (5) business days notice to the Trustor, with interest thereon as provided herein; ARTICLE I DEFINITIONS 1 . "Agreement" means that Owner Participation Agreement entered into by the Participant and the Beneficiary hereof, dated ; said Agreement (a copy of which is on file with the Beneficiary as a public record at the address stated above, and including all of its attachments) is incorporated herein by reference. 2 . "Expiration Date" means: ( i ) the date upon which the term of the Lease, which is Attachment No. 5 to the Agreement, expires. 3 . "Mortgage" means any permanent or long-term loan (other than a loan by an entity related to or controlled by the Redeveloper) , or any other financing device (including without limitation deeds of trust) the proceeds of which are used in the construction of the Project Improvements, which loan is secured by a security financing interest in the Trustor' s interest in the Project Improvements; 4. "Public Improvements" is defined in the main body of the Agreement. 5. "Project" means the "Property" and the "Public improvements" , insofar as situated on the Property, together with all additions, improvements, restorations and replacements thereof, and together with the items set forth in the sixth paragraph hereof. 6. "Property" is defined in the second paragraph hereof. 7 . "Security" is defined in the twelfth paragraph hereof. 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 3 of 19 * • 87-7D�552 8. "Standards" means those standards of construction and operation characteristic of first-class new parking facility of a character found in newer parking facilities in the Southern California area. 9 . "Trustor" means Franciscan Plaza Investment Group, collectively, and each of their transferees and successors in interest. Where an obligation is created herein binding upon Trustor, the obligation shall also apply to and bind any transferees or successors in interest as well as Paul L. Farber. Where the terms of the Deed of Trust have the effect of creating an obligation of the Trustor and a transferee, such obligation shall be deemed to be a joint and several obligation of the Trustor and such transferee. Paul L. Farber shall be jointly and severally liable for the obligations of the Trustor as set forth in or pursuant to this Deed of Trust. Unless the context clearly otherwise requires, any capitalized term used herein and not defined herein shall have the meaning given to it under the Agreement ( and any amendments thereto) . ARTICLE II MAINTENANCE AND MODIFICATION OF THE PROJECT AND SECURITY; RELEASE UPON PAYMENT Section 2 . 1 Maintenance and Modification of the Project by Trustor. The Trustor agrees that at all times prior to the Expiration Date, the Trustor will, at the Trustor' s own expense, maintain, preserve and keep the Project or cause the Project to be maintained, preserved and kept in a condition substantially similar to other first-class commercial developments of size similar to or greater than the Project consisting only of legally permissible uses . The Trustor will from time to time make or cause to be made all repairs, replacements and renewals deemed proper and necessary by it. The Beneficiary shall have no responsibility in any of these matters or for the making of improvements or additions to the Project. Trustor agrees to pay fully and discharge (or cause to be paid fully and discharged) all claims for labor done and for material and services furnished in connection with the Security, diligently to file or procure the filing of a valid notice of completion upon completion of construction of any part of the Security, diligently file or procure the filing of a notice of cessation upon the event of a cessation of labor on the work or construction on the Security for a continuous period of thirty (30) days or more, and to take all other 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 4 of 19 reasonable steps to forestall the assertion of claims of lien against the Security or any part thereof. Section 2 .2 Release of Land and Improvements. Upon the Expiration Date, and provided that the Trustor is not in default under the Agreement, the Beneficiary shall, upon the request of the Trustor, deliver to the Trustor such instruments as are reasonably necessary to confirm the release of the Security from the lien of this Deed of Trust. Section 2 . 3 Granting of Easements . Trustor may grant easements, licenses, rights-of-way or other similar rights or privileges in the nature of easements with respect to any property or rights included in the Security without the prior written approval of the Beneficiary. In the event such rights are granted, the Trustor shall promptly so advise the Beneficiary in writing. ARTICLE III TAXES AND INSURANCE; ADVANCES Section 3 . 1 Taxes, Other Governmental Charges and Utility Charges. Trustor shall pay, or cause to be paid, at least fifteen ( 15 ) days prior to delinquency, all taxes, assessments, charges and levies imposed by any public authority or utility company which are or may become a lien affecting the Security or any part thereof; provided, however, that Trustor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as ( a) the legality thereof shall be promptly and actively contested in good faith and by appropriate proceedings, and (b) Trustor maintains reserves adequate to pay any liabilities contested pursuant to this Section 3 . 1 in accordance with generally accepted accounting principles . With respect to special assessments or other similar governmental charges, Trustor shall pay such amount in full prior to the attachment of any lien therefor on any part of the Security unless the Trustor has secured the prior written approval of the Beneficiary to pay such amounts in installments over a period of years. In the event that Trustor shall fail to pay any of the foregoing items required by this Section to be paid by Trustor, Beneficiary may (but shall be under no obligation to) pay the same, after the Beneficiary has notified the Trustor of such failure to pay and the Trustor fails to fully pay any such item within seven (7 ) business days of the earlier of the receipt or mailing of such notice. Any amount so advanced therefor by Beneficiary, together with interest thereon from the date of such advance at the maximum rate permitted under Section 1(2 ) 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 5 of 19 0 8T-704662 of Article XV of the California Constitution, shall become an additional obligation of Trustor to the Beneficiary and shall be secured hereby, and Trustor hereby agrees to pay all such amounts. Section 3 . 2 Provisions Respecting Insurance. Trustor agrees to provide that insurance coverage provided for in the Agreement. Section 3 . 3 Advances . In the event the Trustor shall fail to maintain the full insurance coverage required by this Deed of Trust or shall fail to keep the Project in good repair and operating condition, the Beneficiary may (but shall be under no obligation to) take out the required policies of insurance and pay the premium on the same or may make such repairs or replacements as are necessary and provide for payment thereof; and, provided that the Beneficiary provides five (5) business days' notice to the Trustor all amounts so advanced therefor by the Beneficiary shall become an additional obligation of the Trustor to the Beneficiary (together with interest as set forth below) and shall be secured hereby, which amounts the Trustor agrees to pay on demand of the Beneficiary, and if not so paid, shall bear interest from the date of the advance at the maximum rate permitted by Section 1 (2 ) of Article XV of the California Constitution. ARTICLE IV DAMAGE, DESTRUCTION OR CONDEMNATION Section 4. 1 Damage and Destruction. If, prior to the Expiration Date, the Project or any porton thereof is destroyed ( in whole or in part) or is damaged by fire or other casualty, the Trustor shall (a) cause any insurance proceeds arising from insurance referred to in Section 3 . 2 hereof and any other coverage acquired by the Trustor to be used to promptly rebuild and replace the Project, and (b) repair and replace the Project as necessary to bring the Project into conformity with the Standards. Section 4.2 Condemnation. Subject to the provisions of senior obligations to which this Deed of Trust is subordinate, if title to or any interest in or the temporary use of the Project or any part thereof shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, including any proceeding or purchase in lieu thereof, the proceeds as a result of such taking shall be paid as provided pursuant to the Lease. 12-11--87 ATTACHMENT NO. 5 7242k/2299/30 Page 6 of 19 . • � 7 ARTICLE V REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE TRUSTOR Section 5 . 1 Defense of the Title. The Trustor covenants that it is lawfully seised and possessed of title in fee simple to the Property, that it has good right to sell, convey or otherwise transfer or encumber the same, and that the Trustor, for itself and its successors and assigns, warrants and will forever defend the right and title to the foregoing described and conveyed property unto the Beneficiary, its successors and assigns, against the claims of all persons whomsoever, excepting only encumbrances approved by the Beneficiary. Section 5 .2 Inspection of the Project. The Trustor covenants and agrees that at any and all reasonable times and upon reasonable notice, the Beneficiary and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right, without payment of charges or fees, to inspect the Property. ARTICLE VI AGREEMENTS AFFECTING THE PROJECT; FURTHER ASSURANCES; PAYMENT OF THE TOTAL OBLIGATION Section 6. 1 Other Agreements Affecting Project. The Trustor shall duly and punctually perform all terms, covenants, conditions and agreements binding upon it under the Agreement or any other agreement of any nature whatsoever now or hereafter involving or affecting the Property or any part thereof. Section 6 .2 Further Assurances; After Acquired Property. At any time, and from time to time, upon request by the Beneficiary, the Trustor shall make, execute and deliver, or cause to be made, executed and delivered, to the Beneficiary and, where appropriate, cause to be recorded and/or filed, and from time to time thereafter to be recorded and/or filed, and from time to time thereafter to be re-recorded and/or refiled, at such time and in such offices and places as shall be deemed desirable by the Beneficiary, any and all such other and further deeds of trust, security agreements, financing statements respecting personal property, instruments of further assurance, certificates and other documents as may, in the opinion of the Beneficiary, be necessary or desirable in order to effectuate, complete or perfect, or to continue and preserve, (a) the obligations of the Trustor under this Deed of Trust, and (b) the lien of this Deed of Trust as a lien prior 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 7 of 19 BT-704662 to all liens except those obligations which shall be senior obligations pursuant to the provisions of the Agreement. Upon any failure by the Trustor to do so, the Beneficiary may make, execute, record, file re-record and/or refile any and all such deeds of trust, security agreements, instruments, certificates and documents for and in the name of the Trustor, and the Trustor hereby irrevocably appoints the Beneficiary the agent and attorney-in-fact of the Trustor to do so. The lien hereof shall automatically attach, without further act, to all after-acquired property deemed to be part of the Security as defined herein. Section 6 . 3 Agreement to Pay Attorney' s Fees and Expenses. In the event of an Event of Default hereunder, and if the Beneficiary should employ attorneys or incur other expenses for the collection of amounts due or the enforcement of performance or observance of an obligation or agreement on the part of the Trustor in this Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Beneficiary; and any such amounts paid by the Beneficiary shall be added to the indebtedness secured by the lien of this Deed of Trust, and shall bear interest from the date such expenses are incurred at the maximum rate permitted by Section 1(2 ) of Article XV of the California Constitution. Section 6. 4 Subrogation; Payment of Claims. Provided that the Beneficiary gives notice of at least five (5 ) business days to the Trustor, the Beneficiary shall be subrogated to the claims and liens of all parties whose claims or liens are discharged or paid by the Beneficiary pursuant to the provisions hereof. If permitted in the Mortgage, the Beneficiary shall have the right to pay and discharge the obligations secured by the Mortgage. Section 6. 5 Operation of the Property. The Trustor agrees and covenants to enter into an agreement for maintenance and operation of the Property as set out in the Agreement. Both Parties acknowledge that the Parking Facility has been dedicated to Public Purpose use as specified and defined in the Agreement. Section 6. 6 Transfer. No sale, transfer, lease, pledge, encumbrance, creation of a security interest in or other hypothecation of the Security shall relieve or release the Trustor from primary liability under this Deed of Trust, the Agreement or the Site Covenants, as the case may be. 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 8 of 19 8T--T0466? ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7 . 1 Events of Default Defined. The occurrence of any failure of the Trustor to perform under this Deed of Trust, and the continuation of said failure for a period of thirty (30) business days as to monetary obligations and sixty (60) business days as to non-monetary obligations, after written notice specifying such failure and requesting that it be remedied shall have been given to Trustor from the Beneficiary, shall be an Event of Default under this Deed of Trust. Section 7 .2 The Beneficiary' s Right to Enter and Take Possession. If an Event of Default as to a monitary obligation of Trustor; including without limitation a transfer contrary to Section 301 of the Agreement, shall have occurred and be continuing, the Beneficiary may: (a) Either in person or by agent, with or without bringing any action or proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Property and take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of Trustee, and do any acts which it deems necessary or desirable to preserve the value, marketability or rentability of the Property, or part thereof or interest therein, increase the income therefrom or protect the Security hereof and, with or without taking possession of the Property, sue for or otherwise collect the rents, issues and profits thereof, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including attorneys' fees, upon any indebtedness secured hereby, all in such order as Beneficiary may determine. The entering upon and taking possession of the Property, the collection of such rents, issues and profits and the application thereof, as aforesaid, shall not cure or waive any Default or notice of Default hereunder or invalidate any act done in response to such Default or pursuant to such notice of Default and, notwithstanding the continuance in possession of the Property or the collection, receipt and application of rents, issues or profits, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, the Agreement or by law upon occurrence of any Event of Default, including the right to exercise the power of sale; (b) Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 9 of 19 i 87-704662 (c) Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Trustor' s interest in the property to be sold, which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official Records of the County in which the Property is located; or (d) Exercise all other rights and remedies provided herein, in the instruments by which the Trustor acquires title to the Property, including any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. Section 7 . 3 Foreclosure By Power of Sale . Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the Beneficiary shall notify Trustee and shall deposit with Trustee this Deed of Trust which is secured hereby ( and the deposit of which shall be deemed to constitute evidence that the Total Obligation is immediately due and payable) , and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require. ( a) Upon receipt of such notice from the Beneficiary, Trustee shall cause to be recorded, published and delivered to Trustor such Notice of Default and Election to Sell as then required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such Notice of Default and after Notice of Sale having been given as required by law, sell the Property, at the time and place of sale fixed by it in said Notice of Sale, either as a whole or in separate lots or parcels or items as Trustee shall deem expedient and in such order as it may determine, at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such purchaser or purchasers. (b) After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of: ( i ) the Total Obligation; (ii ) all other sums then secured hereby; and (iii ) the remainder, if any, to the person or persons legally entitled thereto. 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 10 of 19 8T-704662 (c ) Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new notice of sale. Section 7 . 4 Receiver. If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of right and without further notice to Trustor or anyone claiming under Security, and without regard to the then value of the Property or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Security (or a part thereof) , and Trustor hereby irrevocably consents to such appointment and waives further notice of any application therefor. Any such receiver or receivers shall have all the powers and duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and shall continue as such and exercise all such powers until the date of confirmation of sale of the Property, unless such receivership is sooner terminated. Section 7 . 5 Remedies Cumulative. No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity. Section 7 . 6 No Waiver. ( a) No delay or omission of the Beneficiary to exercise any right, power or remedy accruing upon any Default shall exhaust or impair any such right, power or remedy, or shall be construed to be a waiver of any such Default or acquiescence therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious by the Beneficiary. No consent or waiver, expressed or implied, by the Beneficiary to or of any breach by the Trustor in the performance of the obligations hereunder shall be deemed or construed to be a consent to or waiver of obligations of the Trustor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Beneficiary of its right hereunder or impair any rights, powers or remedies consequent on any breach or Default by the Trustor. 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 11 of 19 8T--T04662 (b) If the Beneficiary ( i ) grants forbearance or an extension of time for the performance of any obligations secured hereby, (ii ) takes other or additional security, ( iii) waives or does not exercise any right granted herein, or in the Agreement, (iv) releases any part of the Security from the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements of this Deed of Trust, or the Agreement, (v) consents to the filing of any map, plat or replat affecting the Security, (vi ) consents to the granting of any easement or other right affecting the Security, or (vii ) makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not release, discharge, modify, change or affect the original liability under this Deed of Trust, or any other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-signer, endorser, surety or guarantor (unless expressly released) ; nor shall any such act or omission preclude the Beneficiary from exercising any right, power or privilege herein granted or intended to be granted in the event of any Default then made or of any subsequent Default, nor, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary shall the lien of this Deed of Trust be altered thereby. In the event of the sale or transfer by operation of law or otherwise of all or any part of the Property, the Beneficiary, without notice, is hereby authorized and empowered to deal with any such vendee or transferee with reference to the Security (or a part thereof) or the indebtedness secured hereby, or with reference to any of the terms, covenants, conditions or agreements hereof, as fully and to the same extent as it might deal with the Trustor and without in any way releasing or discharging any liabilities, obligations or undertakings of the Trustor. Section 7 . 7 Suits to Protect the Securit The Beneficiary shall have power (upon ninety (90) days notice to the Trustor) to (a) institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Security (and the rights of the Beneficiary as secured by this Deed of Trust) by any acts which may be unlawful or any violation of this Deed of Trust, (b) preserve or protect its interest ( as described in this Deed of Trust) in the Security and in the rents, issues, profits and revenues arising therefrom, and (c) restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, rule or order would impair the security thereunder or be prejudicial to the interests of the Beneficiary. Section 7 . 8 Trustee May File Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, 12-11-87 ATTACHMENT N0. 5 7242k/2299/30 Page 12 of 19 87-704662 reorganization, arrangement, adjustment, composition or other proceedings affecting the Trustor, its creditors or its property, the Beneficiary, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of the Beneficiary allowed in such proceedings for the entire amount due and payable by the Trustor under this Deed of Trust at the date of the institution of such proceedings and for any additional amount which may become due and payable by the Trustor hereunder after such date. ARTICLE VIII MISCELLANEOUS Section 8 . 1. Amendments. This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of any waiver, change, discharge or termination is sought. Section 8 .2 Trustor Waiver of Rights. Trustor hereby acknowledges that it is aware of and has the advice of counsel of its choice with respect to its rights under the Constitution of the United States, including, but not limited to, its rights arising under the Fourth, Fifth, Sixth and Fourteenth Amendments thereto, and the Constitution of the State of California. Trustor agrees that Beneficiary may exercise its rights hereunder in accordance with the provisions hereof, including, but not limited to, the exercise of the power of sale pursuant to Section 7 . 4 hereof, and Trustor hereby expressly waives and releases its rights under such Constitutions with respect thereto, including, but not limited to, its rights, if any, to notice and a hearing upon the occurrence of an Event of Default hereunder; provided, however, nothing contained herein shall be deemed to be a waiver of Trustor' s rights to reinstate or redeem this Deed of Trust in accordance with applicable law. Trustor further waives to the extent permitted by law, ( a) the benefit of all laws now existing or that may hereafter be enacted providing for any appraisement before sale of any portion of the Security, (b) all rights of valuation, appraisement, stay of execution, notice of election to mature or declare due the whole of the secured indebtedness and marshaling in the event of foreclosure of the liens hereby created, and (c) all rights and remedies which Trustor may have or be able to assert by reason of the laws of the State of California pertaining to the rights and remedies of sureties. 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 13 of 19 - . . r • -zo4ssz 8� Section 8. 3 Reconveyance by Trustee. Upon written request of either party after the Expiration Date, or sooner upon written request of Beneficiary stating that all conditions or obligations contained or referenced herein and in the Agreement have been completed or satisfied, and upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by Trustor of Trustee' s reasonable fees, Trustee shall reconvey to Trustor, or to the person or persons legally entitled thereto, without warranty, any portion of the Property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in any reconveyance may be described as "the person or person legally entitled thereto. " Section 8. 4 Notices. Whenever Beneficiary, Trustor or Trustee shall desire to give or serve any notice, demand, request or other communication with respect to this Deed of Trust, each such notice, demand, request, or other communication shall be in writing and shall be effective only if the same is delivered by personal service or mailed by registered or certified mail, postage prepaid, return receipts requested, or by telegram, addressed to the address set forth in the first paragraph of this Deed of Trust. .Any party may at any time change its address for such notices by delivering or mailing to the other parties hereto, as aforesaid, a notice of such change. Section 8.5 Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. Section 8. 6 Captions. The captions or headings at the beginning of each Section hereof are for the covenience of the parties and are not a part of this Deed of Trust. Section 8. 7 Invalidity of Certain Provisions . Every provision of this Deed of Trust is intended to be severable . In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable . If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured portion of the debt, and all payments made on the debt, whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid on and applied to the full payment of that portion of the debt which is not secured or partially secured by the lien of this Deed of Trust. 1.2-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 14 of 19 Section 8. 9 No Merger. If title to the Property shall become vested in the Beneficiary, this Deed of Trust and the lien created hereby shall not be destroyed or terminated by application of the doctrine of merger and, in such event, Beneficiary shall continue to have and enjoy all of the rights and privileges of Beneficiary under this Deed of Trust. In addition, upon foreclosure under this Deed of Trust pursuant to the provisions hereof, any leases or subleases then existing and affecting all or any portion of the Security shall not be destroyed or terminated by application of the law of merger or as a matter of law or as a result of such foreclosure unless Beneficiary or any purchaser at any such foreclosure shall so elect. No act by or on behalf of Beneficiary or any such purchaser shall constitute a termination of any lease or sublease unless Beneficiary or such purchaser shall give written notice of termination to such tenant or subtenant. Section 8. 10 Governing Law. This Deed of Trust shall be governed by and construed in accordance with the laws of the State of California. Section 8. 11 Gender and Number. In this Deed of Trust the singular shall include the plural and the masculine shall include the feminine and neuter and vice versa, if the context so requires. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above written. FRANCISCAN PLAZA INVESTMENT GROUP 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 15 of 19 STATE OF CALIFORNIA BB. COUNTY OF ORANGE ) On this day of 1987, before me, the undersigned, a Notary Public in and for said State, personally appeared , known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed the within instrument and who is known to me to be the general partner of FRANCISCAN PLAZA INVESTMENT GROUP, a general partnership, the general partnership that executed the within instrument, and acknowledged to me that he executed the within instrument on behalf of said partnership and that said partnership executed the same. WITNESS my hand and official seal. Notary Public Name (typed or printed) (SEAL) 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 16 of 19 10 8T--T04662 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY ( 121-150-20) LOT 40 OF TRACT NO. 103 AS SHOWN ON A MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THE WESTERLY 13 . 00 FEET OF SAID LOT, BEING A STRIP OF LAND 13 . 00 FEET IN WIDTH LYING EASTERLY AND CONTIGUOUS TO THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS DESCRIBED IN DEED RECORDED FEBRUARY 27, 1936 IN BOOK 807 PAGE 286 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM THAT PORTION THEREOF DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE NORTHERLY LINE OF LOT 42 OF SAID TRACT NO. 103 , SAID POINT BEING SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST 202 . 60 FEET FROM THE NORTHEAST CORNER OF SAID LOT 42; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42, SAID POINT BEING SOUTH 84 DEGREES 28 MINUTES 00 SECONDS WEST 201. 44 FEET FROM THE SOUTHEAST CORNER OF SAID LOT 42 ; THENCE CONTINUING SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF LOT 41 OF SAID TRACT NO. 103 ; THENCE SOUTH 84 DEGREES 27 MINUTES WEST ALONG SAID SOUTHERLY LINE 15 . 00 FEET TO THE TRUE POINT OF BEGINNING; THENCE ALONG SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 9 . 50 FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM THE NORTHERLY LINE OF SAID LOT 40; THENCE WESTERLY PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM SAID NORTHERLY LINE TO A POINT IN THE WESTERLY LINE OF SAID LOT 40; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO THE NORTHWEST CORNER OF SAID LOT 40; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 40 TO THE TRUE POINT OF BEGINNING. ( 121-150-21 ) LOT 43 , AS SHOWN ON A LICENSED SURVEYOR' S MAP, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 2, PAGES 31 TO 38 INCLUSIVE, RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM THE WESTERLY 12 FEET. 32-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 17 of 19 87-T0466Z ( 121-150-22 ) THAT PORTION OF LOT 40 OF TRACT NO. 103, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE NORTHERLY LINE OF LOT 42 OF SAID TRACT NO. 103 , SAID POINT BEING SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST 202 . 60 FEET FROM THE NORTHEAST CORNER OF SAID LOT 42; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42 , SAID POINT BEING SOUTH 84 DEGREES 28 MINUTES 00 SECONDS WEST 201. 44 FEET FROM THE SOUTHEAST CORNER OF SAID LOT 42 ; THENCE CONTINUING SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF LOT 41 OF SAID TRACT 103; THENCE SOUTH 64 DEGREES 27 MINUTES WEST ALONG SAID SOUTHERLY LINE 15 . 00 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 9 . 50 FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM THE NORTHERLY LINE OF SAID LOT 40; THENCE LINE TO A POINT IN THE WESTERLY LINE OF SAID LOT 40; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO THE NORTHWEST CORNER OF SAID LOT 40; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 40 TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THE WESTERLY 13 . 00 FEET OF SAID LOT, BEING A STRIP OF LAND 13 . 00 FEET IN WIDTH LYING EASTERLY OF AND CONTIGUOUS TO THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS DESCRIBED IN DEED RECORDED FEBRUARY 27, 1936 IN BOOK 807 PAGE 286 OF OFFICIAL RECORDS. ( 121-150-09) LOT 42 OF TRACT NO. 103, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 TO 30 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PROPERTY: BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 42, SAID CORNER BEING ON THE WESTERLY PROPERTY LINE OF THE CALIFORNIA STATE HIGHWAY: THENCE NORTH 5 DEGREES 23 MINUTES 00 SECONDS WEST ALONG THE ABOVE MENTIONED PROPERTY LINE 136. 88 FEET TO AN INTERSECTION WITH THE SOUTHERLY LINE OF GARDEN STREET: THENCE SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST ALONG THE SOUTHERLY LINE OF GARDEN STREET 202 . 60 FEET TO A POINT: THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT ON THE SOUTHERLY LINE OF THE ABOVE MENTIONED LOT 42 ; THENCE NORTH 84 DEGREES 28 MINUTES 00 SECONDS EAST ALONG THE SOUTHERLY LINE OF LOT 42 , 201 . 44 FEET TO THE POINT OF BEGINNING. 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 18 of 19 ST-T0466? ( 121-150-12 ) THAT PORTION OF LOT 41 OF TRACT NO. 103 , IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 41; RUNNING THENCE NORTH 9 DEGREES 40 MINUTES WEST 84. 41 FEET ALONG THE WEST LINE OF SAID LOT 41 TO THE NORTHWEST CORNER THEREOF: THENCE NORTH 84 DEGREES 26 MINUTES EAST 41 . 13 FEET ALONG THE NORTHERLY LINE OF SAID LOT 41 TO A POINT WHICH IS LOCATED 201 . 44 FEET SOUTH 84 DEGREES 28 MINUTES WEST FROM THE SOUTHEAST CORNER OF LOT 42 OF SAID TRACT NO. 103 ; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 41; THENCE SOUTH 84 DEGREES 27 MINUTES WEST 35 . 55 FEET ALONG THE SOUTHERLY LINE OF SAID LOT 41 TO THE POINT OF BEGINNING. ( 121-150-10) THAT PORTION OF LOT 42 OF TRACT NO. 103 , IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BACK 11, PAGES 29 TO 33, INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: BEGINNING TO THE MOST EASTERLY CORNER OF SAID LOT, SAID CORNER BEING IN THE WESTERLY PROPERTY LINE OF THE CALIFORNIA STATE HIGHWAY; THENCE NORTH 5 DEGREES 23 MINUTES 00 SECONDS WEST ALONG THE ABOVE MENTIONED PROPERTY LINE 136. 88 FEET TO AN INTERSECTION WITH THE SOUTHERLY LINE OF GARDEN STREET; THENCE SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST, ALONG THE SOUTHERLY LINE OF GARDEN STREET, 202 . 60 FEET TO A POINT; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42; THENCE NORTH 84 DEGREES 28 MINUTES 00 SECONDS EAST, ALONG THE SOUTHERLY LINE OF SAID LOT, 201 .44 FEET TO THE POINT OF BEGINNING. END 12-11-87 ATTACHMENT NO. 5 7242k/2299/30 Page 19 of 19 8T-70466?- ATTACHMENT NO. 6 SCOPE OF DEVELOPMENT I. GENERAL This document presents general requirements for the development of the Site and off-site improvements. Detailed requirements are addressed in the development review process and approval of specific construction plans and documents. The site shall be designed and developed as an integrated complex in which the buildings will achieve architectural excellence, both individually as well as-4n their integration into the complex as a whole. The Developer and the Agency will cooperate and direct their consultants, architects and engineers to cooperate so as to ensure the continuity and coordination necessary for the proper and timely completion of the project. A. Site Description The Site is an area bounded by A.T. & S.F.R.R. on the west, Camino Capistrano on the east, existing commercial on the south and Verdugo Street on the north, The Site area is approximately 2.41 acres ( 104,980 sq. ft.). B. Architecture and Site Desmon The architecture shall include elements of a mission village architectural theme, which is evident in the surrounding area. It is important this style be evident in all elements of design, from all elevations of the structures down to smaller elements such as street furniture and trash enclosures. Particular attention shall be paid to massing, color and materials. Materials shall include those approved by City in its discretion. The Developer shall apply for approvals from the City and the Agency for any changes to the project's approved site design and elevations, as required by City codes and this Owner Participation Agreement. C. Uses The Site shall include a 18,500 square foot five-plex movie theatre, 16,000 square feet of retail space, and a three level parking structure. The lease of facilities by the Agency in accordance with this agreement is limited to the parking structure, Attachment No. 6 Page 1 of 6 S7-704662 to the environment. Signs identifying the building use will be permitted, but their height, size, location, color, lighting and design will be subject to Agency and City approval and must conform to the standards adopted for the Tourist Commercial District. No animated signs or signs extending above the roof parapet are allowed. Permits must be received for all signs in accordance with the San Juan Capistrano Municipal Code. 9. Maintenance and O enation - Except if within a public right of way, on- site improvements to be maintained by the Developer shall include but not be limited to sidewalks, pedestrian lighting, landscaping and architectural elements identifying the site. 10. En1tineerintt/Public Improvements - Developer shall submit a grading plan, street improvement plans, hydrology and hydraulic calculations to the Public Works Department and Orange County Environmental Management Agency. Developer shall be responsible for the design and construction of all improvements in any public right-of-way required in connection with Development of the Site (referred to as "Public Right of Way Improvements"). As provided in paragraph III below, Design of all Public Right of Way Improvements shall require the approval of the Community Planning and Development and Public Works Departments and, if applicable, Orange County Environmental Management Agency and A.T. & S.F.R.R. 11. Utilities - Developer shall provide for the on-site installation or the relocation of such sewer, storm drain, water, gas, electric, telephone, cable television and other utility distribution lines, installations and facilities as are necessary to be installed or relocated in connection with the Site by reason of the new development. Developer shall be responsible for all necessary connections/hookup interconnects for existing and new utilities from the Site to the curbline except for sewer and storm drain which Developer shall install hookups on the Site. Developer shall connect to existing sewer on site and shall be responsible for any relocation, if necessary, of this on-site sewer line. Any new on- site sewer lines constructed shall be at the Developer's cost. All such facilities located above-ground shall meet with the approval of the Community Planning and Development Department and the serving utility. Said installation shall be in a manner acceptable to the public utility and shall be in the form of a vault, wall cabinet or wallbox, and shall be installed in accordance with standard plans and specifications of the City of San Juan Capistrano. Developer shall provide for the installation of Cable T. V. facilities and equipment for all buildings constructed on-site. Attachment No. 6 Page 4 of 6 0 87-704662 Utility facilities and related equipment which are to remain as agreed to by the Agency and the Developer shall be protected by the Developer or the public utility which operates and maintains such facilities and related equipment. 12. Development Fees All development fees shall be paid by the developer. 13. Fire All occupied structures shall be provided with automatic fire sprinklers, if required by the fire department or building codes. All vehicular ways shall be capable of supporting a fire truck as directed by the Fire Department. Water improvement glans shall be approved by the County Fire Department, Water mains shall be of adequate size, as specified by the County Fire Department and City Public Works Department. Access consisting of a minimum 201061 if parking permitted) roadway capable of supporting fire apparatus shall be maintained to all fire hydrants from the time that the hydrants are placed in service. Special consideration shall be given to maintaining the integrity of such roadways during periods of inclement weather. III. PUBLIC IMPROVEMENTS A. The Developer shall cause to be designed and constructed the following "Public Right of Way Improvements" the entire cost and expense of which shall be paid for by the Developer: 1. Street improvements to include curb and gutter; asphalt concrete; aggregate base; sidewalks; and signing, striping and landscaping. 2. Traffic signal at the intersection of Camino Capistrano and Verdugo Streets, with interconnect to existing Camino Capistrano signals. 3. Street lighting and fire hydrants. 4. Landscaping within public easements or rights of way. 5. Installation and relocation by the public utility companies of such sewers, drains, water and gas distribution lines, electric and telephone and all other public utility lines installations and facilities. 6. Undergrounding of public utilities. 7. Any and all other Public Right of Way Improvements required by the City, County or other governmental agency in connection with the development of the Site. 8. Improvements needed for the railraod platform, including landscaping, up to a maximum expenditure by the developer of $35,000. Attachment No. 6 Page 5 of 6 B. Utili Work 87-704662 Any utility work shall be performed in accordance with the technical specifications, standards and practices of the City and the appropriate utility owner. The Developer's plans for such public improvements shall be submitted to the Agency and the City for review and approval prior to the advertisement for bids. Once such items are constructed, Developer shall be responsible, at its expense, for any and all repairs due to damages caused by Developer's construction and any changes required by the Developer. GBF108728 Attachment No. 6 Page 6 of 6 1 ATTACHMENT NO. 7 87-704662 1 04662 Recording Requested by ) and When Recorded Return to ) and Mail Tax Statements to: ) Space above this line for Recorder' s use CERTIFICATE OF COMPLETION FOR CONSTRUCTION AND DEVELOPMENT WHEREAS, by Agreement dated the San Juan Capistrano Community Redevelopment Agency, a public body, corporate and politic, hereinafter referred to as "Agency" , entered into a owner participation agreement with Franciscan Plaza Investment Group, a California limited partnership, hereinafter referred to as the "Participant" , concerning certain real property situated in the City of San Juan Capistrano, California described on Exhibit "1" attached hereto and made a part hereof; and WHEREAS, as referenced in said Agreement, the Agency shall furnish the Participant with a Certificate of Completion upon completion of construction and development, which certificate shall be in such form as to permit it to be recorded in the Recorder' s Office of Orange County; and WHEREAS, such certificate shall be conclusive determination of satisfactory completion of the construction and development required by the Agreement on the Site; and WHEREAS, the Agency has conclusively determined that the construction and development on the above described real property required by the Agreement on the Site has been satisfactorily completed; NOW THEREFORE, 1 . As provided in said Agreement, the Agency does hereby certify that the construction and development on the Site, as required by the Agreement, has been fully performed and completed. Any requirements for operation pursuant to the Agreement which is on file with the Agency as a public record 12-11-87 ATTACHMENT NO. 7 7242k/2299/30 Page 1 of 5 8T-704562 and incorporated herein by reference, shall remain enforceable according to their terms. 2 . Nothing contained in this instrument shall modify in any other way any other provisions of the Agreement or the Lease referred to in such Agreement (as above referenced) , or that certain Deed of Trust recorded among the official records of the County of Orange as document number book , page WITNESS WHEREOF, the Agency has executed this certificate this day of , 19— SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY By: ATTEST: 12-11-87 ATTACHMENT NO. 7 7242k/2299/30 Page 2 of 5 EXHIBIT "1" 87-704662- LEGAL 7-70466?LEGAL DESCRIPTION ( 121-150-20) LOT 40 OF TRACT NO. 103 AS SHOWN ON A MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING THEREFROM THE WESTERLY 13 .00 FEET OF SAID LOT, BEING A STRIP OF LAND 13 . 00 FEET IN WIDTH LYING EASTERLY AND CONTIGUOUS TO THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS DESCRIBED IN DEED RECORDED FEBRUARY 27, 1936 IN BOOK 807 PAGE 286 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM THAT PORTION THEREOF DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE NORTHERLY LINE OF LOT 42 OF SAID TRACT NO. 103 , SAID POINT BEING SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST 202 . 60 FEET FROM THE NORTHEAST CORNER OF SAID LOT 42 ; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135. 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42 , SAID POINT BEING SOUTH 84 DEGREES 28 MINUTES 00 SECONDS WEST 201 . 44 FEET FROM THE SOUTHEAST CORNER OF SAID LOT 42; THENCE CONTINUING SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF LOT 41 OF SAID TRACT NO. 103 ; THENCE SOUTH 84 DEGREES 27 MINUTES WEST ALONG SAID SOUTHERLY LINE 15 . 00 FEET TO THE TRUE POINT OF BEGINNING; THENCE ALONG SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 9 . 50 FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM THE NORTHERLY LINE OF SAID LOT 40; THENCE WESTERLY PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM SAID NORTHERLY LINE TO A POINT IN THE WESTERLY LINE OF SAID LOT 40; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO THE NORTHWEST CORNER OF SAID LOT 40; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 40 TO THE TRUE POINT OF BEGINNING. ( 121-150-21) LOT 43, AS SHOWN ON A LICENSED SURVEYOR' S MAP, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 2 , PAGES 31 TO 38 INCLUSIVE, RECORD OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM THE WESTERLY 12 FEET. 1211-87 ATTACHMENT NO. 7 7242k/2299/30 Page 3 of 5 0 8T-TQ4662 ( 121-150-22 ) THAT PORTION OF LOT 40 OF TRACT NO. 103, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT IN THE NORTHERLY LINE OF LOT 42 OF SAID TRACT NO. 103, SAID POINT BEING SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST 202 . 60 FEET FROM THE NORTHEAST CORNER OF SAID LOT 42 ; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42, SAID POINT BEING SOUTH 84 DEGREES 28 MINUTES 00 SECONDS WEST 201 . 44 FEET FROM THE SOUTHEAST CORNER OF SAID LOT 42 ; THENCE CONTINUING SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF LOT 41 OF SAID TRACT 103 ; THENCE SOUTH 84 DEGREES 27 MINUTES WEST ALONG SAID SOUTHERLY LINE 15 . 00 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 9 . 50 FEET TO A POINT IN A LINE THAT IS PARALLEL WITH AND DISTANT SOUTHERLY 9 . 50 FEET FROM THE NORTHERLY LINE OF SAID LOT 40; THENCE LINE TO A POINT IN THE WESTERLY LINE OF SAID LOT 40; THENCE NORTHERLY ALONG SAID WESTERLY LINE TO THE NORTHWEST CORNER OF SAID LOT 40; THENCE EASTERLY ALONG THE NORTHERLY LINE OF SAID LOT 40 TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THE WESTERLY 13 . 00 FEET OF SAID LOT, BEING A STRIP OF LAND 13 . 00 FEET IN WIDTH LYING EASTERLY OF AND CONTIGUOUS TO THE RIGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, AS DESCRIBED IN DEED RECORDED FEBRUARY 27 , 1936 IN BOOK 807 PAGE 286 OF OFFICIAL RECORDS . ( 121-150-09 ) LOT 42 OF TRACT NO. 103 , IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 TO 30 INCLUSIVE OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PROPERTY: BEGINNING AT THE MOST EASTERLY CORNER OF SAID LOT 42, SAID CORNER BEING ON THE WESTERLY PROPERTY LINE OF THE CALIFORNIA STATE HIGHWAY: THENCE NORTH 5 DEGREES 23 MINUTES 00 SECONDS WEST ALONG THE ABOVE MENTIONED PROPERTY LINE 136 . 88 FEET TO AN INTERSECTION WITH THE SOUTHERLY LINE OF GARDEN STREET: THENCE SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST ALONG THE SOUTHERLY LINE OF GARDEN STREET 202 . 60 FEET TO A POINT: THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT ON THE SOUTHERLY LINE OF THE ABOVE MENTIONED LOT 42; THENCE NORTH 84 DEGREES 28 MINUTES 00 SECONDS EAST ALONG THE SOUTHERLY LINE OF LOT 42 , 201 . 44 FEET TO THE POINT OF BEGINNING. 12-11-87 ATTACHMENT NO. 7 7242k/2299/30 Page 4 of 5 87-704662 ( 121-150-12 ) THAT PORTION OF LOT 41 OF TRACT NO. 103, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGES 29 THROUGH 33 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 41; RUNNING THENCE NORTH 9 DEGREES 40 MINUTES WEST 84. 41 FEET ALONG THE WEST LINE OF SAID LOT 41 TO THE NORTHWEST CORNER THEREOF: THENCE NORTH 84 DEGREES 28 MINUTES EAST 41 . 13 FEET ALONG THE NORTHERLY LINE OF SAID LOT 41 TO A POINT WHICH IS LOCATED 201 . 44 FEET SOUTH 84 DEGREES 28 MINUTES WEST FROM THE SOUTHEAST CORNER OF LOT 42 OF SAID TRACT NO. 103 ; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84. 18 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 41; THENCE SOUTH 84 DEGREES 27 MINUTES WEST 35 . 55 FEET ALONG THE SOUTHERLY LINE OF SAID LOT 41 TO THE POINT OF BEGINNING. ( 121-150-10) THAT PORTION OF LOT 42 OF TRACT NO. 103, IN THE CITY OF SAN JUAN CAPISTRANO, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BACK 11, PAGES 29 TO 33, INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY, DESCRIBED AS FOLLOWS: BEGINNING TO THE MOST EASTERLY CORNER OF SAID LOT, SAID CORNER BEING IN THE WESTERLY PROPERTY LINE OF THE CALIFORNIA STATE HIGHWAY; THENCE NORTH 5 DEGREES 23 MINUTES 00 SECONDS WEST ALONG THE ABOVE MENTIONED PROPERTY LINE 136.88 FEET TO AN INTERSECTION WITH THE SOUTHERLY LINE OF GARDEN STREET; THENCE SOUTH 84 DEGREES 07 MINUTES 30 SECONDS WEST, ALONG THE SOUTHERLY LINE OF GARDEN STREET, 202 . 60 FEET TO A POINT; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135 . 66 FEET TO A POINT IN THE SOUTHERLY LINE OF SAID LOT 42; THENCE NORTH 84 DEGREES 28 MINUTES 00 SECONDS EAST, ALONG THE SOUTHERLY LINE OF SAID LOT, 201 . 44 FEET TO THE POINT OF BEGINNING. END 12-11-87 ATTACHMENT NO. 7 7242k/2299/30 Page 5 of 5 ATTACHMENT NO. 8 87-7046 6? GUARANTY AND AGREEMENT OF ( PAUL L. FARBER THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY (the "Agency" ) , FRANCISCAN PLAZA INVESTMENT GROUP (the "Developer" ) , and PAUL L. FARBER, an individual (the "Guarantor" ) have entered or will enter into that certain Owner Participation Agreement for the Central Redevelopment Project Area (the "Agreement" ) , which Agreement provides in part that the Guarantor shall make and deliver a guaranty as provided in said Agreement. Except as expressly defined herein, all terms shall have the same meanings as used in the Agreement. R E C I T A L S A. The Guarantor is a related party to the Developer, and will significantly benefit by the execution by the Agency of the Agreement. B. The execution by the Guarantor of this Guaranty is a condition but for which the Agency would not execute the Agreement. In consideration of the execution of the Agreement, and of other valuable consideration, receipt of which is hereby acknowledged: 1 . Guarantor guarantees to each of Agency the full , timely and faithful performance by Developer of all of its obligations, duties, promises, covenants and agreements as set forth in the Agreement, including without limitation devela.-ment of the Developer Improvements and all other consideration, claims, or losses payable by the Developer pursuant to the Agreement. 2 . This Guaranty is unconditional and may be enforced directly against the undersigned. No extensions, modifications or changes to the Agreement shall release the undersigned or affect this Guaranty in any way, and the undersigned waives notification thereof. 3 . The undersigned hereby waives all of the suretyship provisions of the California Civil Code Sections 2788 through 2855 . 12-11-87 ATTACHMENT NO. 8 7242k/2299/30 Page 1 of 4 87-704662 4. Guarantor hereby waives and agrees not to assert or take advantage of (a) any right to require Agency to proceed against the Developer (or any guarantor other than the undersigned) or to pursue any other remedy in the Agency' s power before proceeding against the Guarantor, (b) demand, protest, and notice which the Agency may be required to provide to Developer under the Agreement, and (c) any duty on the part of Agency to disclose to Guarantor any facts Agency or City now or hereafter know about the Site, the Property, the Agreement, or the Developer, regardless of whether Agency has reason to believe that any such facts materially increase the risks beyond that which Guarantor intends to assume or has reason to believe that such facts are unknown to Guarantor or has a reasonable opportunity to communicate such facts to Guarantor, it being understood and agreed that Guarantor is fully responsible for being and keeping informed of all circumstances regarding the Site, the Property, the Agreement, the obligations of the Developer, the financial condition of the Developer, and of all circumstances bearing on the risk of any obligation by Developer hereby guaranteed. 5 . Guarantor shall have no right of subrogation and waives any right to enforce any remedy the Agency now have or may hereafter have against the Developer, and any benefit of, and any right to participate in any security now or hereafter held by Agency. 5. The obligations of Guarantor hereunder are independent of the obligations of Developer and, in the event of default hereunder, a separate action or actions may be brought and prosecuted against Guarantor (or any other guarantor) whether or not Developer (or any other guarantor) is joined therein or a separate action or actions are brought against Developer. 7 . In the event of any litigation between Agency and Guarantor arising out of this Guaranty, the prevailing party shall be entitled to recover its reasonable costs and attorney' s fees. 8. No provisions of this Guaranty can be waived nor can Guarantor be released from the obligations hereunder except by a writing duly executed by each of Agency. 9 . Guarantor agrees to pay all reasonable attorney' s fees and all other costs and expenses which may be incurred by Agency in enforcing or attempting to enforce this Guaranty, whether the same shall be enforced by suit or otherwise. 10. Guarantor hereby waives notice of any demand by the Agency, as well as notice of any default by the Developer. 12-11-87 ATTACHMENT NO. 8 7242k/2299/30 Page 2 of 4 SI--704662 11 . The Agency may assign this Guaranty. When so assigned, Guarantor shall be bound as above to the assignees without in any manner affecting Guarantor' s liability hereunder. 12 . This Guaranty shall remain in effect notwithstanding any bankruptcy, reorganization or insolvency of the Developer or any successor or assignee thereof or any disaffirmance by a trustee of the Developer. 13 . This Guaranty shall inure to the benefit of and bind the successors and assigns of Agency and Guarantor. 14. Guarantor agrees that jurisiction and venue with respect to any matter pertaining to the Guaranty or acts or omissions hereunder shall lie exclusively with the Superior Court of the County of Orange, State of California, in an appropriate municipal court of that county, or in the Federal District Court in the Central District of California. Gurantor irrevocably waives any and all defenses based upon revenue or forum non conveniens. 15 . The laws of the State of California shall govern the interpretation and enforcement of this Guaranty. IN WITNESS WHEREOF, /)the undersigned has executed this Guaranty this 1.501 day of ¢k, , 198il PAUL L. FARBER, an individual "Guarantor" 12-11-87 ATTACHMENT NO. 8 7242k/2299/30 Page 3 of 4 87 .704662 STATE OF CALIFORNIA } ss. COUNTY OF ORANGE ) On thisday of , 1987, before me, the undersigned, a Notary Public in and for said State, personally appeared 81,41 dbw, 4 aA PJM - — (or proved to me on thk5 basis of satisfactory evidence) to be the person who executed the within instrument. WITNESS my hand and official seal . OFFW l7CPlL'Yl?Q�+/n-J tyNNEN a r y Public AOTA$Zy MY � Name (typed or printed) [ SEAL] 12-11-87 ATTACHMENT NO. 8 7242k/2299/30 Page 4 of 4 V 87-704662 ATTACHMENT NO. 9 NON-DISTURBANCE AND ATTORNMENT AGREEMENT The SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, a public body, corporate and politic, ( "Lessee" ) has executed a lease ( "Lease" ) , with FRANCISCAN PLAZA INVESTMENT GROUP, a California limited partnership, of the premises ( "Premises" ) described in Exhibit A attached hereto . ( "Beneficiary' ) , has caused a deed of trust to be recorded on _ , as Instrument No. , in the Official Records of the County of Orange, State of California, on said premises of which it is the Beneficiary. Lessee and Beneficiary desire hereby to establish certain rights, safeguards, obligations and priorities with respect to their respective interest by means of the following Non-Disturbance and Attornment Agreement. NOW, THEREFORE, the parties hereto covenant and agree as follows: 1 . Provided the Lease is in full force and effect and Lessee is not in default thereunder after the applicable cure period, then: (a) The right of possession of Lessee to the premises and the Lessee' s rights arising out of the Lease shall not be affected or disturbed by the Beneficiary in the exercise of any of its rights under the Deed of Trust or the Note secured thereby. (b) In the event that the Beneficiary, or any other person acquires title to the Premises pursuant to the exercise of any remedy provided for in the Deed of Trust or under the law of California, the Lease shall not be terminated or affected by said foreclosure or sale resulting from any such proceeding, and the Beneficiary hereby covenants that any sale by it of the Premises pursuant to the exercise of any rights and remedies under the Deed of Trust, or otherwise, shall be made subject to the Lease and the rights of the Lessee thereunder; and the Lessee covenants and agrees to attorn to the Beneficiary or such person as its new Lessor, and the Lease shall continue in full force and effect as a direct lease between Lessee and Beneficiary, or such other person upon all the terms, covenants, conditions and agreements set forth in the Lease between Lessee and Lessor. Upon such attornment, the Lease is incorporated herein as a part of this Agreement. 2 . The Lease shall be subject and subordinate to the lien of the Deed of trust and to all the terms, conditions and provisions thereof, to all advances made or to be made thereunder, and to any renewals, extensions, modifications or replacements thereof, not inconsistent with Paragraph 1 of this Agreement. 12-11-87 ATTACHMENT NO. 9 7242k/2299/30 Page 1 of 2 8T-T0466? 3 . The foregoing provisions shall be self-operative and effective without the execution of any further instruments on the part of either party hereto . This Agreement may not be modified other than an agreement in writing signed by the parties hereto or by their respective successors in interest. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their successors and assigns. IN WITNESS WHEREOF, the parties hereto have cause this Agreement to be duly executed this day of , 198_. SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY By: Chairman "LESSEE" ATTEST: Secretary (SEAL) By: Title By: Title "BENEFICIARY" 12-11-87 ATTACHMENT NO. 9 7242k/2299/30 Page 2 of 2 87-T04662 STATE OF CALIFORNIA ) ss. COUNTY OF ORANGE ) On thisZ::�A day of 1987, before me, the undersigne , a Notary Public in and for said State, personally appeared (or proved to me on 'thN basis of satisfactory evidence) to be the person who executed the within instrument and who is known to me to be the general partner of FRANCISCAN PLAZA INVESTMENT GROUP, a general partnership, the general partnership that executed the within instrument, and acknowledged to me that he executed the within instrument on behalf of said partnership and that said partnership executed the same. WITNESS my hand and official seal. Notary Public OFFICIAL SEAL YAJLE7TG' 61AWA-) LYNNEIT'E C LEHMANN Name (typed or printed) ¢, fjOTARy PUBLIC'CALIFORNIA OWGE CONTY My comm. expires OCT 23, 1991 (SEAL) 12-11-87 7242k/2299/30 -34- RECORDING REQUESTED BY a # .INE UNDERSIGNED AGENT HEREBY i CERTIFIES THAT THIS IS A TRUE wtiFm mconDw MAIL 10 _- >, AND CORRECT COPY OF THE ORIGINAL DOCUMENT RECORDED REAL ESTATE FORECLOSURE SERVICES ON 03/15194 6101 BALL ROAD SUITE 308 By MELINDA BERBER CYPRESS,CA 90630 REAL ESTATE SPACE ABOVE THIS LINE rOR RECORDER'S USE LOAN No. 19-12073-21FRANCISCAN PLA OTIIER REF. 94-02691.20 T.S. NO.3941Z LB NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST IMPORTANT NOTICE IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, and you may have the legal right to bring your account in good standing by paying all of your past due payments plus permitted costs and expenses within the time permitted by law for reinstatement of your account which is normally five business dayysprior to the date set for the sale of your property. No sale date may be set until three months from the date this notice of default may be recorded (which date of recordation appears on this notice). This amount is $59, 188 . 00 as of 03/14/1994 , and will increase until your account becomes current. While your property Is In foreclosure, youstill must pay other obli ations (such as insurance and taxes) required by your note and deed of trust or mortgage. If you ail to make future payments on the loan pay taxes on the prope, provide Insurance on the property, or pay other obligations as required In the note and deed of rust or mortgage, the beneficiary or mortgagee may insist that you do so In.order to reinstate your account In good standing. In addition, the beneficiary or mortgagee may require as a condition to reinstatement that you provide reliable written evidence that you paid SII senior liens, property taxes, and hazard insurance premiums. Upon your written request, the beneficiary or mortgagee will give you a written itemization of the entire amount you must pay. You may not have to pay the entire unpaid portion of your account, even though fall payment was demanded but you must pay all amounts in default at the time payment is made. However, you and your beneficiary or mortgagee may mutually agree In writing prior to the time the notice of sale is posted (which may not be earlier than the and of the three-month period stated above) to, among other things, 1) provide additional time in which to cure the default by transfer of the property or otherwise; or O establish a schedule of payments in order to cure your default; or both (1) and(2). Following the expiration of the time period referred to in the first paragraph of this notice, unless the obligation being foreclosed upon or a separate written agreement between you and your creditor permits a longer period, you have only the legal right to stop the sale of your property by paying the entire amount demanded by your creditor. To find out the amount you must pay, or to arrange for payment to stop the foreclosure, or if your property is in foreclosure for any other reason, contact: Name of Beneficiary or Mortgagee: UNION FEDERAL BANK F/K/A UNION FEDERAL SAVINGS BANK 0/0 REAL ESTATE FORECLOSURE SERVICES fi 01 BALL ROAD, SUITE 308 CYPRESS, CA 90630 Phone: (714)821-3071 If you have any questions, you should contact a lawyer or the Governmental agency which may have Insured your loan. Notwithstanding the fact that your property is in foreclosure, you may offer your property for sale, provided the sale is concluded prior to the conclusion of the foreclosure. Remember,YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION. \f 1 Notice of Default - Page 1 HEL-004 (04/93) (� Continued on Page 2 NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST LOAN NO. 19-12073-2/FRANCISCAN PLA OTHER REF. 94-02691-20 T.S. NO.3941Z NOTICE IS HEREBY GIVEN:That UNION FEDERAL BANK,A FEDERAL SAVINGS BANK , is duly appointed Trustee under a Deed of Trust dated 02/20/1990, executed by FRANCISCAN PLAZA INVESTMENT GROUP,A CALIFORNIA LIMITED PARTNERSHIP as Trustor,to secure certaln obligations In favor of UNION FEDERAL SAVINGS BANK,A FEDERALLY-CHARTERED SAVINGS BANK as Beneficiary, Recorded 03/23/1990 ,as Instrument No. 90-151731 , Book N/A , Page N/A and He-recorded ,as Instrument No. N/A , Book N/A , page N/A of Offlelal Records In the office of the Recorder of ORANGE County,California,describing the fand therein: As more fully described on said Deed of Trust. A MODIFICATION OF DEED OF TRUST AGREEMENT, SUBSTITUTION OF TRUSTEE AND PARTIAL RECONVEYANCE RECORDED ON FEBRUARY 25, 1992 AND INSTRUMENT NUMBER X92-111442 AND RECORDED IN THE COUNTY OF ORANGE. ' Including 1 note(s)for the sum of $1,007,500.00 ;that the beneficial Interest tinder such Deed of Trust and the obligations secured thereby are presently held by the beneficiary above referred to;that a breach of, and default in, the obligations for which such Deed of Trust is security has occurred In that payment has not been made of: Failure to make the 02/01/94 payment of principal and/or interest and all subsequent payments, together with late charges, impounds, advances, taxes, delinquent payments on senior liens or assessments, plus attorneys fees and/or costs. that by reason thereof,the present beneficiary under such Deed of Trust has executed and delivered to said duly appointed Trustee, a written Declaration of Default and Demand for Sale, and has deposited with said duly appointed Trustee such Deem of Trust and all documents evidencing obligations secured thereby, and has declared and does hereby declare all sums secured thereby Immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations secured thereby. Datecl: 03/14/1994 UNION FEDERAL BANK, A FEDERAL SAVINGS BANK AS SUCCESSOR TRUSTEE AND R.E. F.S. INC DBA REAL ESTA!E FORECLOSURE SERVICES AS� ENT EX,IZABETH RBER MICE PRESS ENT HEL-0042 (04/93) Notice of Default-Page 2 RECORDING REQUESTED BY THE UNDERSIGNED AGENT HERESY CER11FIES THAT THIS IS A*MUE WI IFN nFC0nDED MAUL 1b AND CORRECT COPY OF THE ORIGINAL DOCUMENT RECORDED REAL ESTATE FORECLOSURE SERVICES ON 03115/94 6101 SALL ROAD SUITE 308 qy MELINDA BERBER CYPRESS, CA 90630 REAL ESTATE SMVM SPACE ABOVE TIIIS LINE FOR RECORDER'S USE LOAN NO. 19-12073-2/FRANCISCAN PLA OTHER REF. 94-02691-20 T.S. NO.3941Z LB NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST IMPORTANT NOTICE IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, and you may have the legal right to bring your account in good standing by payingg all of your past due payments plus permitted costs and expenses within the time ermltted by law for reinstatement of your account which is normally five business days prior to the date set for the sale of your property. No sale date may be set until three months from the date this notice of default may be recorded (which date of recordation appears on this notice). This amount Is $59, 1.88 . oo as of 03/14/1994 , and will Increase until your account becomes current. While our rope is in foreclosure, you still must pay other obligations (such as insurance and taxes)Tequped by your note and deed of trust or mortgage. if you fall to make future payments on the loan pay taxes on the props, provide insurance on the property, or pay other obligations as requires( In he note and deed of rust or mortgage, the beneficiary or mortgagee may insist that you do so in•order to reinstate your account in good standing. In addition, the beneficiary or mortgagee may require as a condition to reinstatement that you provide reliable written evidence that you paid dil senior liens, property taxes, and hazard insurance premiums. Upon your written request, the beneficiary or mortgagee will give you a written Itemization of the entire amount you must pay. You may not have to pay the entire unpaidortion of your account, even though full payment was demanded' but you must pay all amounts In default at the time payment Is made. However, you and your beneficiary or mortga es may mutually agree in writing prior to the time the notice of sale is posted (which ma Holy be earlier than the and of the three-month period stated above) to, among other things, t1) provide additional time in which to cure the default by transfer of the property or otherwise; or ( ) establish a schedule of payments In order to cure your default, or both (1) and(2). Following the expiration of the time period referred to in the first paragraph of this notice, unless the obligation being foreclosed upon or a separate written agreement between you and your creditor permits a longer period, you have only the legal right to stop the sale of your property by paying the entire amount demanded by your creditor. To find out the amount you must pay, or to arrange for payment to stop the foreclosure, or if your property is in foreclosure for any other reason, contact: Name of Beneficiary or Mortgagee: UNION FEDERAL BANK F/K/A UNION FEDERAL SAVINGS BANK C/O REAL ESTATE FORECLOSURE SERVICES 6101 BALL ROAD, SUITE 308 CYPRESS, CA 90630 Phone: (714)821-3071 If you have any questions, you should contact a lawyer or the Governmental agency which may have Insured your loan. Notwithstanding the fact that your property Is in foreclosure,you may offer your property for sale, provided the sae is concluded prior to the conclusion of the foreclosure. Remember,YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION. � Ar Notice of Default - Page 1 REL-UOri (Or�f43) �,1 r jVj)l h� Continued on Page 2 �4Y yr J NOTICE OF DEFAULT AND ELECTION TO SELL UNDER DEED OF TRUST LOAN No. 19-12073-2/FRANCISCAN PLA OTHER REF. 94-02891-20 7.S. NO-39412 NOTICE IS HEREBY GIVEN:That UNION FEDERAL BANK,A FEDERAL SAVINGS BANK ,Is duly appointed Trustee under a Deed of Trust dated 02/20/1990, executed by FRANCISCAN PLAZA INVESTMENT GROUP,A CALIFORNIA LIMITED PARTNERSHIP as Trustor,to secure certain obligations in favor of UNION FEDERAL SAVINGS BANK,A FEDERALLY-CHARTERED SAVINGS BANK as Beneficiary, Recorded 03/23/4990 ,as Instrument No. 90-151731 , Book N/A , Page N/A and Re-recorded ,as Instrument No. N/A , Book N/A ,Page N/A of Official Records In the offlce of the Recorder of ORANGE County,California,describing the land therein: As more fully described on said Deed of Trust. A MODIFICATION OF DEED OF TRUST AGREEMENT, SUBSTITUTION OF TRUSTEE AND PARTIAL RECONVEYANCE RECORDED ON FEBRUARY 25, 1992 AND INSTRUMENT NUMBER #92-111442 AND RECORDED IN THE COUNTY OF ORANGE. ' Including 1 note(s) for the sum of $1,807,500.00 ;that the beneficial interest under such Deed of Trust and the obligations secured thereby are presently held by the beneficiary above referred to;that a breach of,and default In, the obligations for which such Deed of Trust is security has occurred In that payment has not been made of: Failure to make the 02/01/94 payment of principal and/or interest and all s.Ubsequent payments, together with late charges, impounds, advances, taxes, delinquent payments an senior liens or assessments, plus attorney's fees and/or costs. that by reason thereof, the present beneficiary under such Deed of Trust has executed and delivered to said duly appointed Trustee, a written Declaratlon of Default and Demand for Sale, and has deposited with said duly appointed Trustee such Deed of Trust and all documents evidencing obligations secured thereby, and has declared and does hereby declare all sums secured thereby Immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations secured thereby. Dated: 03/14/1994 UNION FEDERAL BANK, A FEDERAL SAVINGS BANK AS SUCCESSOR TRUSTEE AND R.E.F.S. INC DBA REAL ESTA FORECLOSURE SERVICES , AS qXqENT EL12 T IE PRES- E� RBER ,CIE MEL-0042 (04/93) Notice of Defautt-Page 2 ' APRIL 18, 1995 REGULAR MEETING OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY BOARD OF DIRECTORS The Regular Meeting of the Board of Directors of the City of San Juan Capistrano Redevelopment Agency was called to order by Chairman Swerdlin at 7:34 p.m. in the City Council Chamber. ROLL-CALL: PRESENT: David Swerdlin, Chairman Carolyn Nash, Vice Chairman Collene Campbell, Director Wyatt Hart, Director Gil Jones, Director ;E ABSENT: None STAFF PRESENT: George Scarborough,Executive Director; Thomas Tomlinson, Deputy Director; Richard K. Denhalter, Agency Counsel/City Attorney; Cheryl Johnson, Agency Secretary; William Huber, Director of Engineering and Building Services; Lt. Paul Sullivan, Chief of Police Services; Nancy Bernardi, Recording Secretary. PUBLIC HEARINGS AhENDhEM TO THE OWNER„ EA911CIPATION AGREEMENT (FRANCISCAN PLAZA IN'vTSIUEM GRQUP/FARB Proposal: Consideration of a Third Amendment to the existing Owner Participation Agreement with Franciscan Plaza Investment Group. Applicant: Mr. Paull Farber ' Franciscan Plaza Investment Group � 31831 Camino Capistrano, Suite 100 San Juan Capistrano, CA 92675 V_Yijaeu CouWunic um. Report dated April 18, 1995, from the Finance Officer, recommending that this item be tabled 4� indefinitely at the request of the applicant. CAA Minutes -1- 4/18/95 1 � • f Motion to Tabir, Itg It was moved by Director Campbell, seconded by Director Hart, and unanimously carried that this item be tabled at the request of the applicant. C,QNSENT CALENDAR It was moved by Director Jones, seconded by Director Hart, that the staff recommendations be accepted for the following items listed on the Consent Calendar. The motion carried by the following vote: AYES: Directors Campbell, Hart, Jones, Nash, and Chairman Swerdlin NOES: None ABSENT: None 1. APPROVAL OF COMMUNITY ZWE�MLOPMIENT AGENCY MMIES REGULAR MEETING OF M MCH 21 1995995 The Minutes of the Regular Meeting of March 21, 1995, were approved as submitted. 2. RECEIVE AND FILE WARRANTS FOR MARCH 1995„(300.30) The List of Demands dated March 29, 1995, in the total amount of$7,466.02 was received and filed. 3. RECEIVE AND FILE FINANCE OFFICE'S REP RT OF INVESTMENTS ALU MARCH 1995 (35030) The Finance Officer's Report of Investments as of March 31, 1995, in the total amount of $1,655,294.36 was received and filed. 1. CONSIDERATION OF FACADE EASEMENT AhM R 'ERIO&EASE,MENI-- r. CAPISTRANO DEPOT (670.50 , `. Director Jones indicated he would abstain in this matter due to a potential conflict of interest relating to the proximity of his residence/business to this project. i-R Written Communication, `} Report dated April 18, 1995, from the Planning Director, recommending that the Preservation Easement Agreement for the interior and exterior portions of the Capistrano Depot and the exterior portion of the Freight Building be approved as a condition of sale for the buildings. The intent of the facade easements is to provide added protection to the buildings, which are CRA Minutes -2- 4/18/95 AGE DA ITEM April 18, 1995 TO: George Scarborough, Executive Director Community Redevelopment Agency FROM: Cynthia L. Pendleton,Finance Officer Community Redevelopment Agency SUBJECT: Joint Public Hearing of the City of San Juan Capistrano and the San Juan Capistrano Community Redevelopment Agency on the Proposed Third Amendment to the Existing Owner Participation Agreement with Franciscan Plaza Investment Group located at 37181 - 31831 Camino Capistrano RECOMMENDATION By Motion, table the Third Amendment to the Owner Participation Agreement. ISIS TUATION: As the request of the applicant,Franciscan Plaza Investment Group, staff recommends the Agency Board of Directors table the Third Amendment to the Owner Participation Agreement with Franciscan Plaza Investment Group. NOTIFICATION: Mr. Paul Farber Mr. Pat Toomey Franciscan Plaza Investment Group Union Federal Bank 31831 Camino Capistrano, Suite 100 330 E. Lambert Road San Juan Capistrano, CA 92675 Brea, California 92621 RECOMMENDATION By Motion,table the Third Amendment to the Owner Participation Agreement. Respectfully Submitted, &P1LW1U-0--L . �) Cy thia L. Pendleton Finance Officer Attachment FOR CITY COUNCIL AGEND ... 04/06/95 14,17 0714 240 6754 F,RANCISM/FARDBR CITY OF SJC X1002 FRANCISCAN PLA. April. 6, 1995 To: Candy Pendleton City of San Suan Capistrano F3[OM: PaUl L. Farber Re: Request to Postpone Application for Early Distribution of CRA Fund!,- Dear undDear Cindy, Pursuant to our phone convorsation I at4t withdrawing the application for a April. 21 t discounted payor nt on the remaJ-Ding balance due to Franciscan Plaza Investment Group Per the CEPA agr+eet. I have decided to wart until the current- disputes with my Lender are resolved after which I will request that the application be resubmitted. Please feel free to contact xe if you should have any questions or require any further information on this matter. Sina Yr Farbor 1 Paxtner/Property Manager 3178.1 Camiiw Capistrano, Suise 306, San Juan CdzAstra no, CA 92675 (714) 489--3108 Venae (7714) 489-1042 4 - A 0 0 RECORDING REQUESTED BY ANO wrlrH nECOWED MAn_To REAL ESTATE FOnECLOSURE SERVICES 6101 BALL ROAD SUITE 308 CYPRESS, CA 90630 SPA_C_E_ABOVE THIS Lltm FOR RECORDER'S US$ LOAN No. 19-12073-7/FRANCISCAN PLAZA OTHER RFF. 94-02691-20 T.S. too. 39412 MB A.P. NU"r3Frt, 121-150-25 YOU ARE 1N DEFAULT UNDER A DEED OF TRUST DATED February 20, 1990 UNLESS YOU TAKE ACTION TO PROTECT YOUR PROPERTY, IT MAY BE SOLD AT PUBLIC SALE. IF YOU NEED AN EXPLANATION OF THE NATURE OF THE PRO- CEEDING AGAINST YOU, YOU SHOULD CONTACT A LAWYER. Notice of Trustee`s Sale Under Deed of Trust Notice is hereby given that UNION FEDERAL BANK,A FEDERAL SAVINGS BANK ,as trustee,or successor trustee,or substituted trustee pursuant to the Deed of Trust executed by FRANCISCAN PLAZA INVESTMENT GROUP,A CALIFORNIA LIMITED PARTNERSHIP Recorded 03/23/1990 In Book N/A Page N/A Inst. # 90-151731 of Official Records in the office of the County recorder of ORANGE County,California,and pursuant to the Notice of Default and Election to Sell thereunder recorded 03/15/1994 in Book N/A Page N/A Inst # 94-179562 of said Official Records,will SBII on 07/15/1994 at 9:45 A.M. at THE MAIN (NORTH) ENTRANCE TO THE COUNTY *RE-RECORDED: / / COURTHOUSE INST: N/A 700 CIVIC CENTER DRIVE WEST BOOK: N/A SANTA ANA, CA PAGE: N/A at public auction, to the highest bidder for cash (payable at the time of sale in lawful money of the United Slates),all right, title, and Interest, conveyed to and now held by it under said Deed of Trust In the property situated In said County and State and described as follows: As more full-y described ozz said Deed of Trust. A MODIFICATION OF DEED OF TRUST AGREEMENT, SUBSTITUTION OF TRUSTEE AND PARTIAL RECONVEYANCE RECORDED ON FEBRUARY 25, 1992 AND INSTRUMENT NUMBER #92-111442 AND RECORDED IN THE COUN'T'Y OF ORANGE. The street address and other common designation, if any, of the real property described above is purported to be: 31831 CAMINO CAPISTRANO SAN JUAN CANSTRANO, CA The undersigned Trustee disclaims any liability for any incorrectness of the street address and other common designation,if any,shown herein. The total amount of the unpaid balance of the obligation secured by the property to be sold and reasonable estimated costs,expenses and advances at the time of the initial publication of the Notice of sale is: $3,742,BB3.91 In addition to cash, tha Trustee will accept a cashier's check drawn on a state or national bank, a check drawn by a state or federal credit union or a chac!;diawr:by a stats or!adoral savinga and loan association,sa;•!ngs nsaoelatlon or savings bank specified in Section 5102 of the nnaneial Code and authorized to do business In this state.In the event tender other than cash is accepted,the Trustee may withhold the issuance of the Trustee's Deed until funds become available to the payee or endorsee as a matter of right, Said sale will be made, but without covenant or warranty, express or implied regarding title,possession or encumbrances,to satisfy the indebtedness secured by said Deed,advances thereunder,with interest as provided therein, and the unpaid principal of the note secured by said deed with interest thereon as provided in said Note,fees,charges and expenses of the trustee and of the trusts created by said Deed of Trust. UNION FEDERAL BANK F/K/A UNION FEDERAL SAVINGS BANK C/O REAL ESTATE FORECLOSURE SERVICES AS AGENT 6101 BALL ROAD, SUITE 308 CYPRESS, CA 90630 ( 714 ) 821-3071 - r Dated, 06/16/1994 ALIZABETH ETRBER VICE PRESID NT TWC-007 (2/9p) Notice of Truetee'e Sale Uzi I osp" I's-1 F UNE 1 ----------- j L ALZ W , FOLD AT PERFORATION Firc E R T I T I E D I L � INSERT IN STANDARD#10 WINDOW ENVELOPE. M A PROM E R MOORE RECORDING REQUESTED BY j;Ay AND WHEN nECOnDED MAIL TO REAL ESTATE FORECLOSURE SERVICES 6101 BALL ROAD SUITE 308 CYPRESS, CA 90630 THIS LINE FOR RECORDER'S USE T,OAN No. 19-12073-2/FRANCISCAN PLA 7,A oxnER REF. 94-02691-20 T.S. No. 3941Z MB n.P. Nunnnnt 121-150-25 YOU ARE IN DEFAULT UNDER A DEED OF TRUST DATED February 20, 1990 UNLESS YOU TAKE ACTION TO PROTECT YOUR PROPERTY, iT MAY BE SOLD AT PUBLIC SALE. IF YOU NEED AN EXPLANATION OF THE NATURE OF THE PRO- CEEDING AGAINST YOU, YOU SHOULD CONTACT A LAWYER. Notice of Trustee's Sale Under Deed of Trust Notice Is hereby givers that UNION FEDERAL BANK,A FEDERAL SAVINGS BANK ,as trustee, or successor trustee, or substituted trustee pursuant to the Deed of Trust executed by FRANCISCAN PLAZA INVESTMENT GROUP ,A CALIFORNIA LIMITED PARTNERSHIP Recorded 03/23/1990 in Book N/A Page N/A Inst. # 90-151731 of Official Records In the office of the County Recorder of ORANGE County, California,and pursuant to the Notice of Default and Election to Sell thereunder recorded 03/15/1994 In Book N/A Page N/A Inst# 94-179562 of said Official Records,will SON on 07/15/1994 at 9:45 A.M. at THE MAIN (NORTH) ENTRANCE TO THE COUNTY *RE-RECORDED: / / COURTHOUSE INST: N/A 700 CIVIC CENTER DRIVE WEST BOOK: N/A SANTA ANA, CA PAGE : N/A at public auction, to the highest bidder for cash (payable at the time of sale in lawful money of the United States),all right, title,and Interest, conveyed to and now held by it under said Deed of Trust in the property situated In said County and State and described as follows: As more fully described on said Deed of Trust. A MODIFICATION OF DEED OF TRUST AGREEMENT, SUBSTITUTION OF TRUSTEE AND PARTIAL RECONVEYANCE RECORDED ON FEBRUARY 25, 1992 AND INSTRUMENT NUMBER #92-111442 AND RECORDED IN THE COUNTY OF ORANGE. The street address and other common designation, if any,of the real property described above Is purported to be: 31631 CAMiNO CAPISTRANO SAN JUAN CAPISTRANO,CA The undersigned Trustee disclaims any liability for any incorrectness of the sheet address and other common designation,If any,shown herein. The total amount of the unpaid balance of the obligation secured by the property to be sold and reasonable estimated costs,expenses and advances at the time of the initial publication of the Notice of sale is: $3,742,883.91 In addition to cash, the Trustee will accept a cashier's check drawn on a state or national bank, a check drawn by a state or federal credit union of a check drawn by a state or federal savings and loan association,savings association or savings bank specified In Seotion 5102 of the Financial Code and authorized to do business In this state.In the event tender other than cash is accepted,the Trustee may withhold the issuance of the Trustee's Deed until funds become available to the payee or endorsee as a matter of right. Said sale will be made, but without covenant or warranty,express or implied regarding title,possession or encumbrances,to satisfy this Indebtedness secured by said Deed, advances thereunder,with interest as provided therein,and the unpaid principal of the note secured by sold deed with Interest thereon as provided In said Note,tees,charges and expenses of the trustee and of the trusts created by said Deed of Trust. UNION FEDERAL BANK F/K/A UNION FEDERAL SAVINGS BANK C/O REAL ESTATE FORECLOSURE SERVICES AS AGENT 6101 BALL ROAD, SUITE 308 CYPRESS, CA 90630 ( 714) 821-3071 Dated: 06/16/1994 f3 % _ .. �� LIZABETH RB1sR b 101VW VICE PRESID NT �wC_rJo7 tz,9SAIr f71�ij7� � � AdrnS , �)V ��� �jqSSPW D ^A �qt Notice o£ Truetee•s Sele A R T I C L E P 917 060 393 LINE, 3941Z SAN � -- --------- NUMBERSAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY ATTENTION: CITY CLERK 32400 PASEO AOELANTO SAN .JUAN CAPISTRANO , CA 92675 L J T FOLD AT PERFORATION T WALZ INSERT IN STANDARD#10 WINDOW ENVELOPE. M aFP E a. I DID ML A.ME m UM' ()6/17/1994 / OWN[ I., r�I i?Y rel >>1 i }PISIA C _ -1 _ IF l'11 C1F tiAIl Cc' yT0., 1)< San Juan Capistrano Community Redevelopment Agency September 12, 1994 Mr. Paul Farber Franciscan Plaza Investment Group 31831 Camino Capistrano San Juan Capistrano, California 92675 Re: Second Amendment to Owner Participation Agreement Dear Mr. Farber: At their meeting of September 6, 1994, the San Juan Capistrano Community Redevelopment Agency Board of Directors and the City Council held a joint public hearing to consider the Second Amendment to the Owner Participation Agreement with the Franciscan Plaza Investment Group. Following the Hearing the two bodies took action to approve the amendment to adjust the Agency's Supplement Rent Payment Schedule for the parking structure. The following are enclosed for your files: (1) a fully-executed copy of the Second Amendment; (2) Resolution No. CRA 94-9-6-1, setting forth the Community Redevelopment Agency approval of the Amendment; and, (3) Resolution No. 94-9-6-2, setting forth the City Council's approval of the Amendment. If you need any further information, please let us know. Very truly yours, Cheryl Johnson Agency Secretary Enclosures cc: Executive Director (with copy of Amendment/Resolutions) Finance Officer (with copy of Amendment/Resolutions) 32400 Paseo Adelanto San Juan Capistrano California 92675 714-493-1171 SEPTEMBER 6, 1994 REGULAR MEETING OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY BOARD OF DIRECTORS The Regular Meeting of the Board of Directors of the City of San Juan Capistrano Redevelopment Agency was called to order by Chairman Nash at 7:32 p.m. in the City Council Chamber, ROLL CALL: PRESENT: Carolyn Nash,Chairman Collene Campbell, Vice Chairman Gary L. Hausdorfer,Director Gil Jones, Director Jeff Vasquez, Director ABSENT: None STAFF PRESENT: George Scarborough, Executive Director; Thomas Tomlinson, Deputy Director; Richard K. Denhalter,Agency Counsel/City Attorney;Cynthia L. Pendleton,Finance Officer; Dawn Schanderl, Deputy City Clerk;William Huber,Director of Engineering and Building Services; Lt. Paul Sullivan,Chief of Police Services; Nancy Bernardi, Recording Secretary. MINUTES The Minutes of the Regular Meeting of August 2, 1994, were approved as submitted as part of the City Council Consent Calendar. PIMLIC HEARINGS --�"-� 1. JOINT PjJBLIC, HEARING WITH THE CITY COUNCIL; PROPOSED SECOND AMEN12MENT TO THE OWNER PARTICIPATION_AGREEMENT FOR_PROEE LOQATM AT_ 31781-31831 CAMINO CAPISIRANO (FRANCISCAN PLAZA INV 6 40 Pr_onosal: Consideration of a proposal by the Franciscan Plaza Investment Group to accelerate the remaining two supplemental rent payments to be made under the Lease Agreement with the CRA in order to provide a more even cash flow situation. Applig : Franciscan Plaza Investment Group 31781 Camino Capistrano San Juan Capistrano,CA 92675 Wren Comic, on: Report dated September 6, 1994, from the Finance Officer,recommending that the request by the Franciscan Plaza Investment Group to accelerate the remaining two supplemental rent payments be approved,including a budget adjustment to the CRA's Debt Service Fund in the amount of$125,790 to cover the resulting increase in expenditures for fiscal year 1994-95. CRA Minutes -1- 9,'694 Ms. Pendleton made an oral presentation. bblic Hearing: Notice having been given as required by law, Mayor Campbell opened the Public Hearing, and the following person responded: (1) The applicant, Paul Farber,stated he was present to answer any questions. There being no further input,the hearing was declared closed with the right to reopen at any time. Adaption of Resolution Approying Second AmendmgAt to Owner PaWeipation Agreement with Franciscan Plaza Investment Group: It was moved by Director Hausdorfer,seconded by Director Jones,that the following Resolution be adopted: RE5OLUTI N N0, CRA 94-9-6-1_ APPROVING SECOND AMENDMENT TO OWNER PARTICIPATION AGREEMENT(FRANCISCAN PLAZA INVESTMENT GROUP/FARBER) - A RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, APPROVING A SECOND AMENDMENT TO AN OWNER PARTICIPATION AGREEMENT WITH FRANCISCAN PLAZA INVESTMENT GROUP(FARBER) The motion carried by the following vote: AYES: Directors Campbell, Hausdorfer,Jones,Vasquez, and Chairman Nash NOES: None ABSENT: None BOARD ACTIONS I. MCEIVE AND FILE WARRANTS FOR AUGUST 1994(3 00.30 It was moved by Director Jones,seconded by Director Campbell,and unanimously carried that the List of Demands dated August 17, 1994,in the total amount of$5,942.74 be received and filed. CLOSEID SESSION The Board recessed to the Council meeting at 7:33 p.m. and reconvened in Closed Session at 7:45 p.m. for: 1. Conference with Real Property Negotiator per Government Code Section 54956.8 for property located at Decorative Arts Study Center, 31431 Camino Capistrano, with Libros Y Artes de San Juan Capistrano as the negotiating party,to consider price and terms of payment; and 2. Conference with Legal Counsel,Anticipated Litigation,per Government Code Section 54956.9(b), for significant exposure to litigation in four cases, and Government Code Section 54956.9(c), the initiation of litigation in two cases; and CRA Minutes -2- 9/6,94 r 2 • • AGENDA ITEM September 6, 1994 TO: George Scarborough, Executive Director Community Redevelopment Agency FROM: Cynthia L. Pendleton, Finance Officer Community Redevelopment Agency SUBJECT: Joint Public Hearing of the City of San Juan Capistrano and the San Juan Capistrano Community Redevelopment Agency on the Proposed Second Amendment to an Existing Owner Participation Agreement with Franciscan Plaza Investment Group located at 37181 - 31831 Camino Capistrano RECOMMENDATION By Motion; a. Adopt the attached resolution approving the Second Amendment to the Franciscan Plaza Investment Group Owner Participation Agreement, and; b. Approve an additional appropriation of$ 125,790 to the Community Redevelopment Agency Fy 1994-95 Debt Service Budget. SITUATION: A. Summary and-Recomm�e dation - On December 15, 1987, the Community Redevelopment Agency (CRA) entered into an Owner Participation Agreement (OPA) with Franciscan Plaza Investment Group. This OPA was amended on October 17, 1989. The original OPA and the first amendment provided financial assistance towards the construction of the Franciscan Plaza Parking Structure. This financial assistance is in the form of supplemental rent under a Lease Agreement between the CRA and Franciscan Plaza Investment Group. At this time there are two more supplemental rent payments to be made under the Lease Agreement. Franciscan Plaza Investment Group has requested that the payment schedule for these last two payments be altered to provide a more even cash flow situation. Since the payments would be accelerated under the revised payment schedule, it is appropriate to discount these payments to adjust for the Agency's lose of investment earnings on these funds. Additionally, the accelearted payment schedule will increase expenditures in Fy 1994-95 while reducing them in Fy 1995-96. At this time, staff recommends that the Agency Board of Directors adopt the attached resolution approving the Second Amendment to the OPA and approve a budget adjustment of$ 125,790 to the Agency's Debt Service Fund. FOR CITY COUNCIL AGE .. 1 1 Agenda Item -2- September 6, 1994 B. Background-The OPA as amended provides for six(6)supplemental rent payments. These rent payments began in June 1990 and will conclude in December 1995. The supplemental rent payment schedule is as follows: Amount of Rental Period Due Date SuMplemental Rent 1 June 1990 $ 312,540 2 June 1991 281,271 3 December 1992 250,024 4 December 1993 275,000 5 December 1994 275,000 6 December 1995 275,000 Franciscan Plaza Investment Group has requested that the Supplemental Rental payments for periods five (5) and six (6) be adjusted to provide a more even stream of payments over the calendar year. The following schedule was proposed by Franciscan Plaza Investment Group: Amount of Rental Period Payment Due Supplemental Rent 5 08-15-94 $ 200,000 5 12-15-94 75,000 6 03-15-94 66,666 6 06-15-94 66,667 6 09-15-94 66,667 6 12-15-94 ____75,000 Total Payments 550 OOQ Staff has reviewed the Agency's cash flow projections and anticipates that funds will be available to accommodate this request with some minor alterations. Since the adjustment in the payment schedule would require the Agency to accelerate the payments, staff recommends that all payments made prior to the original payment date be discounted by 6%. The Agency's current return on investments is approximately 4.5%. Therefore,the agency will realize a minor profit by discounting these payments by 6%. The Second Amendment to the OPA provides for the following payments: Agenda Item -3- September 6, 1994 Ending In Additional Amount of Discounted Amount of Rental Period Month Supplemental Rent Due Supplemental Rent Due 5 57 $ 200,000 $ 197,030 5 60 75,000 75,000 6 64 66,666 64,060 6 66 66,666 64,700 6 69 66,667 65,675 6 72 75.000 75.000 Total Payments LJIL,465 PUBLIC NOTIFICATION The required legal notices were published on August 25, 1994 and September 1, 1994 in the Capistrano Valley News. No other public notice is required by law. NOTIFICATION Mr. Paul Farber Franciscan Plaza Investment Group 31831 Camino Capistrano, Suite 100 San Juan Capistrano, CA 92675 COMMISSIONIBOARD REVIEW, RECOMMENDATION Not Applicable. FINANCIAL CONSIDERATIONS The lost investment earnings on this accelerated payment schedule total approximately $ 6,300. The total discount on accelerated payments is $ 8,535. This will net approximately$2,200 over the next 16 months. The Community Redevelopment Agency five-year budget shows $275,000 in Fy 1994- 95 and $275,000 in Fy 1995-96 for payment of Supplemental Rent under the current OPA. This second amendment would require a budget adjustment for Fy 1994-95 of$ 125,790 to the Agency's Debt Service. Accordingly, the Fy 1995-96 budget would be reduced by $134,325. These adjustments will result in a net decrease in Agency expenditures over two years of$ 8,535. Agenda Item -4- September 6, 1994 ALTERNATE ACTIONS 1. By Motion; a. Adopt the attached resolution approving the Second Amendment to the Franciscan Plaza Investment Group Owner Participation Agreement, and; b. Approve an additional appropriation of$ 125,790 to the Community Redevelopment Agency Fy 1994-95 Debt Service Budget. 2. Do not adopt the resolution. RECOMMENDATION By Motion; a. Adopt the attached resolution approving the Second Amendment to the Franciscan Plaza Investment Group Owner Participation Agreement, and; b. Approve an additional appropriation of$ 125,790 to the Community Redevelopment Agency Fy 1994-95 Debt Service Budget. Respectfully Submitte , C is L. Pendleton Finance Officer Community Redevelopment Agency RESOLUTION NO. CRA 94-9-6-1 APPROVING SECOND AAUNDMENT TO OWNER P�, TR ICI ATION AGREEMENT (FRANCISCAN PLAZA V4VE5TMZNT GROUP/FARSE) A RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, APPROVING A SECOND AMENDMENT TO AN OWNER PARTICIPATION AGREEMENT WITH FRANCISCAN PLAZA INVESTMENT GROUP (FARBER) 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 Second Amendment (the "Amendment") to the Owner Participation Agreement (the "Agreement") with Franciscan Plaza Investment Group (the "Participant")to adjust the payment schedule of Additional Supplemental Rent; and, WHEREAS, the Participant has submitted to the Agency copies of said proposed Amendment 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 the City Council held a joint public hearing on the Amendment, having duly published notice of such public hearing and made copies of the proposed Amendment available for public inspection and comment; and, WHEREAS, the Amendment provides for a schedule of payments regarding public access to a parking structure which benefits the project area and is essential to allow development according to the Redevelopment Plan, and the parking structure would not have been feasible without the financial participation by the Agency. NOW, THEREFORE, BE IT RESOLVED, by the San Juan Capistrano Community Redevelopment Agency Board of Directors, City of San Juan Capistrano, California, as follows: 1. The Agency has received and heard all oral and written objections to the proposed Agreements and to other matters pertaining to this transaction, and that all such oral and written objections are hereby overruled. 2. The Agency hereby finds and determines that the public and common improvements to be financed in part by the Agency are a benefit to the -1- Project Area and are essential to its development according to the Redevelopment Plan and that the costs to provide said improvements would be infeasible without the contribution by the Agency. 3. The Chairman of the Agency is hereby authorized to execute the Agreement on behalf of the Agency. 4. The Executive Director of the Agency(or his designee) is hereby authorized, on behalf of the Agency, to sign all documents necessary and appropriate to carry out and implement the Agreement and to administer the Agency's obligations, responsibilities, and duties to be performed under the Agreement, and related documents. PASSED, APPROVED, AND ADOPTED this 6th day of September 11994. CAROLYN NAM, CHA MIAN ATTEST: AGt&CY SECRETARY G ,� -2- STATE OF CALIFORNIA } COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO } 1, CHERYL JOHNSON, Agency Secretary of the San Juan Capistrano Community Redevelopment Agency, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Resolution No. CRA 94-9--6-1 adopted by the San Juan Capistrano Community Redevelopment Agency Board of Directors at a regular meeting thereof held on the 6th day of September , 1994, by the following vote: AYES: Directors Jones, Hausdorfer, Campbell, Vasquez and Chairman Nash NOES: None ABSTAIN: None ABSENT: None (SEAL) MtRYL JOHNSON, AGENCY SECRETARY -3- RECEIVED AFFIDAVIT OF PUBLICATION SAF ( 34 PV Space below for Filing Stamp Only_ o�(��r; ,atr r 'r STATE OF CALIFORNIA COUNTY OF ORANGE I am a citizen of the United States and a resident of the County aforesaid. I am over the age of eighteen years,and not a party to or interested in the above entitled matter.I am the principal clerk of the proof of Publication of Capistrano Valley News, a newspaper that has been adjudged to be a newspaper of general circulation by the Superior Court of the County of Orange, State of California, on ,tune 7, 1984, Case No. NOTICE OF PUBLIC HEAR 1 NG A-122949 in and for the City of San Juan Capistrano, County of •... ............................... Orange, State of California;that the notice,of which the annexed is CITY OF SAN JUAN CAP I STRANO a true printed copy, has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to wit: I NOTICWFfPUBLICNEAXMG CITY'OF SAN JUAN CAPISTRANO . August 25, September 1 , 1994 JOINT PUBLIC HEARING I CITYOFSAN JUANCAPISTRANO SAN JUAN CAPISTRANO colltll uXiTy RZMVELOPMENT AGENCY PROPOSED SECOND AUMDUMT TO THE OWNER I declare under penalty of perjury that the foregoing is true and PARTICIPATION AGREMENT(FRANCISCANPLAZA INVESTMENT GRDup1FARBER) Correct. 'Notieelsieregygiven,UMonaaethAjworseptemher.104,at 7:00 Rart.is the City Oa moil ChemM,-,32100 Paseo AddWq, San Juan Capistrano,Calitbreta,the city Council of the City Jr San Juan captstrano and tba Saar Juan Capistrano,oammwft RedevelopmesitAgency.will add a joint public hearing purmu* to the California community Redevelopment Law(health&JOAN* Executed at Mission Viejo, Orange County, Calitomia,on the�Section 33MPartt�ation to 'aeeement*A"-Fnwet,tm existing potion Agreement lttth�lYt'aepisran Plaza Investment Group. The original,Owner ParticlPaliorr September 1 , 199Agreement October 7, �approved on December 15,1957,and smx%dad on ................................................................................................ This Second Amendment provides for an adjustment to the Sup. plemental Rent Schedule in the original Owner Participation Agreement and the First Amendment The proposed Second Amendment wilt provide ppo rent payments to be loads quaRerly as oppWettt tb aatgraty, beginning in September 1994.In return the Agency will be'dis- ................................... counting allpayments Ly 0%ftam the original paynteat date m (SigrtOturt recover any==tont due to aeeelmuen or the payassm schedule. A copy orthe proposed Second Ameddateat to the Owner Parud patio Agreement will be on Ile in the office of the City Clerk. Those desiring to be bwd in fVW 4K or in appo""tr,1F item will be given an oppe Y Wo so darLt ooh`sae q OG prior m the steeling,by weith*to P*CRpConnell at 3$IOOR1wa Adetai to,San Juan Crane;C'ibftesla MMS Attention;C11# Cleric Government Code Section 5W?.5 stipulates that writings distributed to the kgiplative J16ft bV say person are.publle re-, crxde and shag be na fe avatlahle wly delay.df you bring rnitteeiaforatatiaMsfathcCi�yC iaeNiagfordistributMntq the CitycwmenattaehmaowLpim�pr�videadd(twlwetp fir0KrllNtlan to lip andiestce.' For M**JWWOatka,you wW eontaet Cynthia Pet**mi Capistrano Valley News Dopartmosvi xlfAdmhh&v&wServices ri4 3-1171. CMRV L JOHNSON,Cn-j CLXJM (A Publication of South Orange County News) Pgbliahaa CapistNowi*aneyNews 23811 Via FabdGante Ali/+ , 1!MI�1tr 1,lA94 P. O. Box 3629 Mission Viejo, California 92690 (714)768-3631 r NOTICE OF TRANSMITTAL - LEGAL PUBLICATIONS TO: CAPISTRANO VALLEY NEWS Bea Gougeon, Legal FOR PUBLICATION ON: THURSDAY, AUGUST 25, 1994 THURSDAY, SEPTEMBER 1, 1994 DOCUMENT TO BE PUBLISHED: NOTICE OF PUBLIC HEARING- PROPOSED SECOND AMENDMENT TO OWNER PARTICIPATION AGREEMENT (FRANCISCAN PLAZA INVESTMENT GROUP/FARBER) PROOF OF PUBLICATION Please send to: City Clerk's Division, City Hall 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (714) 493-1171 AUTHORIZED BY: DATE: August 17, 1994 Date of Public Hearing - 09/06/94 Date notice published - 08/25/94 - 09/01/94 Date affidavit received 191674 Date notice posted in designated posting places (3) - 08/25/94 Date notice posted on property - 08/25/94 Date of mailing notice to interested parties - 08/25/94 Date notice transmitted to City Manager's Office - 08/18/94 notiteof • ClPUBLIC HEARING TY OF SAN JUAN CAPISTRANO JOINT PUBLIC HEARING CITY OF SAN JUAN CAPISTRANO SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY PROPOSED SECOND AMENDMENT TO THE OWNER PARTICIPATION AGREEMENT (FRANCISCAN PLAZA INVESTMENT GROUP/FARBER) Notice is hereby given, that on the 6th day of September, 1994, at 7:00 p.m., in the City Council Chamber, 32400 Paseo Adelanto, San Juan Capistrano, California, the City Council of the City of San Juan Capistrano and the San Juan Capistrano Community Redevelopment Agency will hold a joint public hearing pursuant to the California Community Redevelopment Law(Health & Safety Code Section 33000 et seq) to consider a Second Amendment to the existing Owner Participation Agreement with Franciscan Plaza Investment Group. The original Owner Participation Agreement was approved on December 15, 1987, and amended on October 7, 1989. This Second Amendment provides for an adjustment to the Supplemental Rent Schedule in the original Owner Participation Agreement and the First Amendment. The proposed Second Amendment will provide for supplement rent payments to be made quarterly as opposed to annually, beginning in September 1994. In return the Agency will be discounting all payments by 6% from the original payment date to recover any interest lost due to acceleration of the payment schedule. A copy of the proposed Second Amendment to the Owner Participation Agreement will be on file in the office of the City Clerk, Those desiring to be heard in favor of, or in opposition to, this item will be given an opportunity to do so during such hearing or, prior to the meeting, by writing to the City Council at 32400 Paseo Adelanto, San Juan Capistrano, California 92675, Attention: City Clerk. Government Code Section 54957.5 stipulates that writings distributed to the legislative body by any person are public records and shall be made available without delay. If you bring written information to the City Council meeting for distribution to the City Council at such meeting, please provide additional copies for distribution to the audience. For further information, you may contact Cynthia Pendleton, Department of Administrative Services at 493-1171. CHERYL J S , CITY CLERK FOR OFFICE USE ONLY: STATE OF CALIFORNIA ) COUNTY OF ORANGE } ss. AFFIDAVIT OF POSTING CITY OF SAN JUAN CAPISTRANO ) AND PUBLICATIO I, CHERYL JOHNSON, declare that I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano; that on August 25, 1994, I caused the above Notice to be posted in three (3) public places in the City of San Juan Capistrano, to wit: City Hall; Old Fire Station Recreation Complex; Orange County Public Library AND, that on August 25, 1994, and September 1, 1994, the above Notice was published in the Capistrano Valley News newspaper. I declare under penalty of perjury that the foregoing is true and correct. "ZZZ2�7 - CHE4Y1, JOHNSON, I Y CLERK City of San Juan Capistrano California JOINT PUBLIC HEARING NOTIFICATION September 6, 1994 Proposed Second Amendment to the Owner Participation Agreement (Franciscan Plaza Investment Group/Farber) Mr. Paul Farber Franciscan Plaza Investment Group 31831 Camino Capistrano, Suite 100 San Juan Capistrano, CA 92675 1 FEBRUARY 1, 1994 REGULAR MEETING OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY BOARD OF DIRECTORS The Regular Meeting of the Board of Directors of the City of San Juan Capistrano Redevelopment Agency was called to order by Chairman Nash at 7:20 p.m. in the City Council Chamber. ROLL CALL PRESENT: Carolyn Nash, Chairman Jeff Vasquez, Vice Chairman Collene Campbell, Director Gary L. Hausdorfer, Director Gil Jones, Director ABSENT: None STAFF PRESENT: George Scarborough,Executive Director;Thomas Tomlinson,Deputy Director;Richard K Denhalter, Agency Counsel/City Attorney; Cynthia L. Pendleton, Finance Officer; Cheryl Johnson, Agency Secretary;William Huber,Director of Engineering and Building Services;Ronald C.Sievers, Director of Public Lands and Facilities;Al King, Jr., Director of Community Services; Lt. Paul Sullivan, Orange County Sheriff's Department; Nancy Bernardi, Recording Secretary. The Minutes of the Regular Meeting of January 4, 1994,were approved as submitted as part of the City Council Consent Calendar. 1. RECEIVE AND FILE WARRANTS FOR JANUARY 1994 (300,N) It was moved by Director Hausdorfer,seconded by Director Vasquez,and unanimously carried that the List of Demands dated January 20, 1994, in the total amount of$719,737.85 be received and filed. 2. CONSIDERADON OF REQUEST FOR REIMBURNE ENT OF MITIGATION COSTS FOR P AR Director Jones indicated he would abstain on this item due to a potential conflict of interest relating to the proximity of his residence/business to this project. Wptten C=Mg 1i.SiXl41p Report dated February 1, 1994, from the Finance Officer, recommending that the Agency approve additional reimbursement, not to exceed 25% (539,974), for mitigation costs to the Franciscan Plaza Investment Group based on the public benefits of the Franciscan Plaza, Phase II project. Ms. Pendleton made an oral presentation. Director Campbell stated she would support the additional reimbursement since the City required the mitigation measures to preserve the heritage of the community and maintain the historic Avila Adobe. Director Vasquez felt that the CRA had insufficient funding to provide the additional reimbursement and noted that the City requires these measures for many projects in the City. He expressed concern that other developers within the historic area would request the same type of financial participation by the City. CRA Minutes -1- 2/1/94 ._ ., __.�,..�.,-,s�,c'vai:,xnbts�.,.�,x�,aaakr_�a.�;;.aestk:P =a.+s.',�w-=syi,.�:�*�.%gw;.:��:xaw"M�.=w.�,+�.��r�ds�',tx:+sw:�u5.���a#+�3�5e�ao-����FF�is`»�`��' -�:�.�;�EW�r;.ndr'�':'P��'a�;A.+�skz�5:ls. tn3'�k..r' 'aafX��:.:�- , ,. A t ARnroy Lof Additional Reimbursement: It was moved by Director Campbell, seconded by Director Hausdorfer, that the Agency provide additional reimbursement, in an amount not to exceed 25% ($39,974), for mitigation costs to the Franciscan Plaza Investment Group based on the public benefits of the Franciscan Plaza, Phase II project. The motion was carried by the following roll call vote: AYES:. Directors Campbell, Hausdorfer, and Chairman Nash NOES: Director Vasquez ABSTAIN: Director Jones ABSENT: None CLOSED SESSION The Board recessed to the Council meeting at 7:25 p.m. and reconvened in Closed Session at 8:25 p.m. for discussion of Real Property Negotiations with the City Council per Government Code Section 54956.8 (26832 Ortega Highway--O'Neill/Nordeck/Riverside Commercial Investors) and Initiated Litigation per Government Code Section 54956.9(a) (Negrete v. San Juan Capistrano and related litigation), the Agency Secretary being excused therefrom, and reconvened at 10:15 p.m. BOARD ACTIONS (Conducted jointly with the City Council) 1. REAL PROPERTY NEGOTIATIOM - 26832 ORIgGA HIGHWAY 'NEI (670.M It was moved by Director Hausdorfer, seconded by Director Jones, to authorize the City Manager to enter into negotiations with the O'Neill Group for the purposes of determining the final aspects of the transaction, including purchase price, date and time of closing, and other associated details such as specific development proposals for the property, timing of that development, retrofitting and timing of retrofitting and all other details relative to development of the property. The results of the negotiations are to be returned to the City Council within ten working days for further consideration; should those negotiations fail, the proposal by Riverside Commercial Investors will then be considered on its merits. Chairman Nash and Director Campbell indicated they would not support the motion due to their feeling that the proposal from Riverside Commercial Investors was a better proposal for the City. The motion carried by the following roll call vote: AYES: Directors Hausdorfer, Jones, and Vasquez NOES: Director Campbell and Chairman Nash ABSENT: None 2. SE131MENT AGREEMMAND MLMAL RELEASEMM E T T R The Agency Counsel advised that the Agreement involved all cases and appeals filed by the Committee to Restore Integrity in San Juan Capistrano v. the City and Carlos F. Negrete v The City and all defendants. The Agreement required that all litigation and appeals be dismissed,with prejudice to any refiling and included a five-year provision that Mr. Negrete will not personally file nor institute as an attorney, any lawsuits against the City, except in areas that involve specific exceptions dealing with him in his personal or legal capacity for injuries. If the provision was breached the full amount of attorneys' CRA Minutes -2- 2/1/94 i i AGENDAITEM February 1, 1994 TO: George Scarborough, Executive Director FROM: Cynthia L. Pendleton, Finance Officer SUBJECT: Consideration of reimbursement of an additional 25% of reimbursement of mitigation costs for Franciscan Plaza Phase II RECOMMENDATION: By motion, at their discretion, the Agency Board of Directors may provide additional reimbursement in an amount not to exceed 25% ($39,974) for mitigation costs to the Franciscan Plaza Investment Group based on the public benefits of the project. SITUATION: A. Summary and Recommendation On December 7, 1993, the Community Redevelopment Agency approved the reimbursement of archaeological costs per existing City Policy No. 604 (50% of testing and 25% of mitigation) for Franciscan Plaza Phase II. The total amount of this reimbursement was $63,676. At the time of this approval, the Franciscan Plaza Investment Group was requesting an additional 25% of mitigation costs. The Agency directed staff to return with a report regarding the request for additional reimbursement. Over the last two months, staff has been working with the Developer and reviewing the records to provide the Agency with additional information. Staff analysis verifies that the basis for granting an additional 25% ($39,974) of mitigation costs must be made on the public benefits associated with the projects such as: the high quality of the completed project; the restoration of the Avila Adobe; the benefits associated with the testing, analysis, and documentation of the resources; and curation of the artifacts in the public domain. Consideration should also be given to the amount expended on mitigation measures over that required under California Environmental Quality Act (CEQA) provisions. Staff recommends that, at their discretion, the Agency provide additional reimbursement not to exceed 25% ($39,974)for mitigation costs to the Franciscan Plaza Investment Group based on the public benefits of the project. FOR C-ITY COUNCIL AGENT 1 • • Agenda Item - 2 - February 1, 1994 B. Background The archaeological work for Franciscan Plaza Phase II is nearing completion. At the time the Agency granted reimbursement of the archaeological work according to City policy, the Developer requested an additional 25% of mitigation costs ($39,974) because of the unique characteristics of the project and the relatively high cost of archaeological work in comparison to the total project cost. The Developer believes he exceeded requirements in the restoration of the Avila Adobe and the preservation of the cistern. Additionally, the site contained many refuse deposits dating to the turn of the century and foundations of a previous adobe structure on the site. A high percentage of the refuse resources were excavated and the foundations were documented and many of the adobe bricks were salvaged. These resources required research and documentation in a report which contributed to the high costs of the mitigation measures. As stated earlier, the Agency has reimbursed the Developer the amount required under City Council policy. Under CEQA, a developer is not required to expend more than one half of 1% of the total cost of the project on mitigation measures. Mitigation costs are defined as those activities which generally occur after the discovery of the resources and may include: extensive testing, removal, documentation, report preparation, restoration and preservation. The Franciscan Plaza project includes two phases and a parking structure. The total construction cost was $13,213,230—one half of 1% would be $66,066. The total cost of mitigation for Phase I and II is as follows: 11—paid by Developer Paid by City Total Phase I $ 88,272 $264,815 $353,087 Phase II $119,885 $ 39,962 $159,847 TOTALa8,1 314,' 7 $SIy93 Franciscan Plaza's share of mitigation for both phases exceeds the CEQA required amount of$66,066 by $132,091. It should be noted that the quality of restoration of the Avila Adobe and cistern, over that which may have been required by the City, contributes to the high mitigation measure costs. Franciscan Plaza proceeded with the requested mitigation measures by the City in order not to delay the project. If the Franciscan Plaza Investment Group had pursued the CEQA financial limitation, it is unclear what the City's position would have been with regard to the mitigation of the resources. Agenda Item - 3 - February 1, 1994 Consideration for reimbursement must also be made on the public benefits of the project. The City of San Juan Capistrano is lucky to have a number of historic structures remaining in the community. The restoration of the Avila adobe to its 19th century appearance preserves the character of the historic streetscape along Camino Capistrano. The cistern's preservation and the creation of a viewing well and descriptive plaque provides an opportunity for the public to have first-hand exposure to part of the community's history. Once the Phase II archaeological report is completed, they will provide historical information and educational benefits. The artifacts will be turned over to the City and will be available for future academic efforts, curation and display. The breadth of archaeological resources associated with the Franciscan Plaza Phase I and II developments is complemented by the Mission San Juan Capistrano and the Historic Town Center property. The Agency must determine the value of these resources and their public benefit in light of what is available elsewhere in the community. The Franciscan Plaza Investment Group has been reimbursed the total amount due under the existing City Council Policy for Phase 11. The Developer also entered into the Phase II development knowing the high probability of finding significant archaeological resources. The Agency Board of Directors must determine if the relatively high cost of the mitigation measures and the public benefits of the project justify an additional reimbursement. COMMISSION OARDREVIEWANDRECOMMENDATIONS: Not applicable. FINANCIALCONSIDERATIONS: The December 7, 1993, Agency action approving $63,676 in reimbursements will be funded from revenues identified in Fiscal Year 93-94 and from savings in the area of legal services, planning services and staff charges. An additional amount not to exceed $39,974 could be reimbursed from these savings without increasing the Agency deficit. However, this will reduce available funds for other discretionary actions by the Agency Board of Directors. The expenditures could be adjusted as part of the mid-year budget process. Agenda Item - 4 - February 1, 1994 NOTIFICATION: Paul Farber Franciscan Plaza Investment Group 31831 Camino Capistrano #100 San Juan Capistrano, California 92675 ALTERNATFACTIONS: 1. By motion, at their discretion, the Agency Board of Directors directs staff to provide additional reimbursement in an amount not to exceed 25% ($39,974) for mitigation costs, to the Franciscan Plaza Investment Group based on the public benefits of the project. 2. By motion, the Agency Board of Directors directs staff to provide the requested additional 25% reimbursement of $39,974 for mitigation costs, to the Franciscan Plaza Investment Group based on the public benefits of the project. 3. By motion, the Agency Board of Directors will not provide additional reimbursement for Franciscan Plaza Phase II archaeological costs. RECOMMENDATION: By motion, at their discretion, the Agency Board of Directors may provide additional reimbursement in an amount not to exceed 25% ($39,974) for mitigation costs to the Franciscan Plaza Investment Group based on the public benefits of the project. Respectfully submitted C thia L. Pendleton Finance Officer CLP:CLW:rmb "01 ill "I F 11 nmmrn +rnl I--- c 11\ 1 4tt 4ftlk ti San Juan Capistrano Community Redevelopment Agency December 9, 1993 Mr. Paul Farber Franciscan Plaza Investment Group 31831 Camino Capistrano, #100 San Juan Capistrano, California 92675 Re: R-ehmbursementf Archatological. Costs - Fr n iscan Plaza Phase II Dear Mr. Farber: At their meeting of December 7, 1993, the San Juan Capistrano Community Redevelopment Agency Board of Directors considered your request for additional reimbursement for the archaeological costs associated with Phase II of the Franciscan Plaza. The Directors authorized reimbursement at this time in accordance with the current Council Policy No. 604, and directed staff to further evaluate your request and provide a report to the Board in January. We will provide a copy of the Agenda and Staff Report to you when the item is again scheduled for consideration. If you have any questions, please contact Cynthia Pendleton, Director of Administrative Services. Very truly yours, Cheryl Joh on Agency Secretary 32400 Paseo Adelanto San Juan Capistrano California 92675 714-493-1171 00 RESOLUTION NO, CRA 93-12-7-1. FINDINGS REGARDING THE AGENCY'S ABU= TO MEET THE PROOF. Y TAX SHIFTSUbMER ,SF6N6M BILL = - A RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, MAKING CERTAIN FINDINGS REGARDING THE AGENCY'S ABILITY TO MEET ITS REQUIRED PROPERTY TAX SHIFT UNDER SENATE BILL 1135 The motion carried by the following vote: AYES: Directors Campbell,Jones, and Chairman Nash NOES: None ABSENT: Directors Hausdorfer and Vasquez BOARD ACTIONS 1. RECEIVE AND FILE WARRANTS OF NQVEMBER 1222f300.30) It was moved by Director Campbell,seconded by Director Jones,and unanimously carried that the List of Demands dated October 31, 1993,in the total amount of$2,357.50, and the List of Demands dated . November 24, 1993, in the total amount of$336,393.44 be received and filed. 2. ANNUAL REfORT OF THE AN JUAN CAPISTRANO COMMU REDEVELOPb%NT AGENCY - JULY 1. 12M THROUGH JUNE 30, 1993 4 - WrittenGQmmuniication: Report dated December 7, 1993, from the Executive Director,forwarding the Agency's Annual Report pursuant to Section 33080.1 of the California Health and Safety Code, including a summary of the activities within the Community Redevelopment Agency Project Area. Receipt and Filingof JKeuorr It was moved by Director Campbell, seconded by Director Jones, and unanimously carried that the Agencys Annual Report for fiscal year 1992-93 be received and filed. - - 3. CONSIDERATIQN OF REQJJQT FOR REIMBURSEMENT OF ARCHAEOLOGICAL COSTS FOR FRANCIS EL&ZA, PHASE II (FARBER) l Director Jones indicated he would abstain in this matter because of the proximity of his residence to this project. Mr. Denhalter advised that this matter could still be acted upon by the majority of the Directors present. Well Report dated December 7, 1993,from the Director of Administrative Services, recommending that the applicant be reimbursed for 50%of his archaeological costs during the construction of Franciscan Plaza II, in accordance with Council Policy No. 604, which provides for City reimbursement of 50% of evaluation testing costs. The Report further recommended that the applicant's request for an additional 25% reimbursement for mitigation costs be referred to staff for recommendation to the Council in January 1994. Ms. Pendleton made an oral presentation. The applicant, Paul Farber, 31831 Camino Capistrano, Suite 100, noted the financial hardships he has endured since the inception of the project,including 5250,000 for restoration work;and,his commitment to maintaining the integrity of the City. He noted the attention to detail used in restoring the astern CRA Minutes -2- 12/7/93 W�va+�+�R�. -- -i�+a�--='rYeslci�gi "°�==;mow=--- « ,b��s:�: is�" s_.. and the Avila Adobe and explained that the archaeological costs and preservation work for Phase II were much more than anticipated. He felt that his request for a total of 50% reimbursement for the mitigation costs was a fair compromise to preserve a portion of the City's history and to secure a suitable tenant for the site. Approval of Reimbursement Costs and Diction to Review Request for Additional 25% Reimbursement: It was moved by Director Campbell, seconded by Chairman Nash, that reimbursement of 50% of the archaeological costs incurred by Franciscan Plaza for Phase II be authorized in accordance with Council Policy No. 604 in the amount of $63,676. Staff was directed to review the applicant's request for an additional 25%reimbursement of mitigation costs and to prepare a report for City Council consideration in January 1994. The motion carried by a 2-0-1 vote, with Director Jones abstaining. CLOSED SESSION None. ADIOURNMENP There being no further business before the Board, the meeting was adjourned at 8:50 p.m. to the next regular meeting date of Tuesday, December 21, 1993, at 7:00 p.m. in the City Council Chamber. That meeting will not be held, and the next meeting will be held January 4, 1994. Respectfully submitted, CHERYL JOHNSON, AGENCY SECRETARY ATTEST: CAROLYN NASH, CHAIRMAN CRA Minutes -3- 12/7/93 AGENDA ITEM: December 7, 1993 TO: George Scarborough, City Manager FROM: Cynthia L. Pendleton, Director of Administrative Services SUBJECT: Consideration of request for Reimbursement of Archaeological Costs per Council Policy No. 604 (Franciscan Plaza - Phase II) RECOMMENDATION: By motion: 1. Approve reimbursement of archaeological costs incurred by Franciscan Plaza for Phase lI testing and mitigation in accordance with Council Policy No. 604 (50% reimbursement). 2. Direct staff to review Franciscan Plaza's request for an additional 25% reimbursement of mitigation and prepare a report for City Council in January, 1994. SITUATION/RECOMMENDATION: Franciscan Plaza (the "Participant") is in the process of completing their archaeological work for Phase II of their project. Based on Council Policy No. 604 (Payment for Contract Archaeology, Exhibit A), the developer is requesting reimbursement for 50% of the cost of evaluation testing and 25% of the cost of mitigation ($63,676). Franciscan Plaza is requesting an additional 25% reimbursement of all mitigation costs incurred (Exhibit B). The current Council Policy provides for 25% reimbursement of archaeological costs. In an effort to properly evaluate Franciscan Plaza's request for additional reimbursement, staff recommends that the City Council approve reimbursement for archaeological costs on Phase II per Council Policy No. 604. Additionally, staff will evaluate Franciscan Plaza's request for additional reimbursement on the mitigation portion of these costs. Background: Council Policy No. 604, regarding reimbursement for contract archaeology paid for by developers was adopted April 16, 1980. This policy provides for 50% of evaluation testing services and 25% of salvage to be reimbursed by the City. In October 1989, the Agency Hoard approved an amendment to the Franciscan Plaza Owner Participation Agreement that included an increase to the Agency's participation in the costs of archaeology for Phase I. The amendment provides for the Agency to increase its contribution to the cost of implementing mitigation measures from 25% to 75%. The total archaeological costs for Phase I were as followed: C.)—olq=J' CONIL AGI=VDA c3 AGENDA ITEW 2- December 7, 1993 Paid by Paid by Agency Developer Total Testing $ 12,479 $ 12,479 $ 24,958 Mitigation 264,815 88,272 53,087 $277,364 $100,751 $378,115 As outlined above, the costs associated with the mitigation measures for Phase I were significant. This extraordinary work included the removal and storage of artifacts and a stone wall. Additionally, measures for the preservation of the Valenzuela Adobe were made. The construction of the viewing well at the Valenzuela Adobe was paid for by the participant with no assistance from the Agency. Total costs for archaeology on Phase I were 3.82% of construction. Since these cultural resources are of a benefit to the entire community, the Agency's commitment to assist in these costs was increased. In exchange for this increased participation, the Agency obtained sole ownership of all archaeologically significant resources located on the involved parcels. This means the Agency has control over which items are displayed and how they are displayed. Phase II Franciscan Plaza is now in the process of completing this process on Phase II of this project. They have submitted a request for reimbursement of certain costs. The costs are broken down as follows: Total Reimbursement Requested Cost per Policy Reimbursement Testing $ 40,655 $ 20,328 $ 20,328 Native American Monitoring 6,755 3,378 3,378 Mitigation 100,744 25,194 50,387 Cistern Restoration 59,103 _142776 29,552 $207,287 $63,676 $103,645 Franciscan Plaza's request for additional assistance needs to be evaluated further to determine whether or not the community value of the improvements made warrant an increase. Staff will analyze this request based on the costs incurred in the development process of the Avila Adobe. COMMISSION/BOARD REVIEW, RECOMMENDATION: Not Applicable AGENDA ITEM -3- December 7, 1993 FINANCIAL CONSIDERATIONS: Archaeological costs associated with Phase 11 total $207,287. Franciscan Plaza has requested reimbursement of 50% of these costs in the amount of $103,645. Based on the City's policy total reimbursement would be $63,676. Also, approximately $32,600 of Phase II mitigation work is yet to be completed. This work will be completed over the next year. Based on this information, the Agency would need $55,526 for reimbursement in Fiscal Year 1993-94 for cost already incurred and $8,150 would be reimbursed in Fiscal Year 1994-95. The costs have been budgeted for Fiscal Year 1993-94, however the Agency has identified savings in the areas of outside legal services, planning services and staff charges. These savings would allow this reimbursement to be made without increasing the Agency deficit. These expenditures would be adjusted at mid-year to accommodate this reimbursement. NOTIFICATION: Paul Farber Franciscan Plaza Investment Group 31831 Camino Capistrano #100 San Juan Capistrano, California 92675 ALTERNATE ACTIONS: 1. By motion, approve reimbursement of Franciscan Plaza II archaeological costs per Council Policy No. 604 (50% of testing; 25% of mitigation) and direct staff to return with a report regarding the request for additional reimbursement. 2. By motion, approve a 50% reimbursement of all Franciscan Plaza Phase II Archaeological costs not to exceed $103,645. 3. Request additional information from staff. RECOMMENDATION: By motion: 1. Approve reimbursement of archaeological costs incurred by Franciscan Plaza for Phase II testing and mitigation in accordance with Council Policy No. 604 (50% reimbursement). 2. Direct staff to review Franciscan Plaza's request for an additional 25% reimbursement of mitigation and prepare a report for City Council in January, 1994. ------------------------------------------------------------------------------ Respectfully submi d, L ACChia L. Pendleton CLP:ja Attachment . . EXHIBIT A CITY OF SAN JUAN CAPISTRANO COUNCIL POLICY Subject: Effective Policy Page Date Number PAYMENT FOR CONTRACT ARCHAEOLOGY I of 1 4/16/80 604 It is a policy of the City Council that payment for contract archaeology shall be borne by the developer for all field surveys and minor subsurface testing. The cost of evaluation testing of more than a week's duration shall be borne equally by the developer and the entities requesting the evaluation. Salvage shall be paid for by the developer (75%) and the City (25%) if arrangements for salvage cannot be made by a local educational institution. i EXHIBIT B FRANCISCAN PLAZA November 22, 1993 George Scarborough City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Re: Pending Reimbursement for Franciscan Plaza Phase 2 Archeological, Preservation and Restoration Costs Dear George, I have been working with Cindy Pendleton of the City's Administrative Services Department in compiling all the relevant data in regard to the request for reimbursement of the Archeological related costs for the second phase of the Franciscan Plaza. The attached schedule will clearly illustrate the higher amounts (in total and as a % of total construction costs) that the second phase has required. We approached this situation with the main objective being to restore the Avila Adobe and to preserve the Cistern with the utmost care and with a commitment to doing the job in a manner that would yield the best result in regard to recapturing their historic validity. The very positive comments from City Officials and many Citizens concerned with the Archeological preservation of San Juan Capistrano has convinced us that we have completed this challenging task to the highest standards possible. The $475, 154 spent on these costs for the Second Phase has made it very difficult for the owners. We have had to utilize all of the funds that were set aside for the Phase 2 Tenant Improvements Allowances. This has made it difficult for us to attract Tenants and has forced us lower our base rents and to borrow additional funds. This situation has put even more strain on the project. I am trying very hard in these difficult times to maintain the integrity of the Project and have resisted renting to Tenants whose operations are not to the high standards that the Projects deserve. 31831 Camino Capistrano, Suite 100, San Juan Capistrano, CA 92675 (714) 489-30I0 Fax (714) 489-3099 I am requesting that a compromise policy be adopted for this situation. The First Phase received reimbursements from the City for 50% of Testing costs and 75% of Mitigation costs. The current policy mandates reimbursements of 50% for Testing costs and 25% of Mitigation costs. If the City adopted a policy of 50% reimbursement for Mitigation costs in this instance; it would mean an additional reimbursement of $39, 969 ($103, 393 less $63,824) . These requests have never included the $268,867 we spent in restoring the Avila Adobe. I am not asking for them to be included now. I am only asking for a fair approach to a difficulty situation. Cindy can confirm for you that $32, 606 of the requested amounts are not payable until 1994 ($9, 250 in the 1st Qtr. and 1356 in the 3rd Qtr. ) . This would make the immediate cash flow aspects of the compromise policy more manageable. George; I have been previously asked to attend the December 7 City Council meeting to accept two awards for the Phase 1 and Phase 2 Projects. I know the City is proud of what I have done in the Historic Area and is grateful for the Franciscan Plaza's ability to bring our Citizens into the Downtown area. Please show your appreciation in a more positive manner by "putting your money where your mouth is". since Paul L. Farber cc: C. Pendleton Franciscan Plaza- Franciscan Promenade Projects Analysis of Archeological, Preservation & Restoration Costs Phase 1: Total Project Construction Costs including Archeological & Preservation Costs * $10, 613,217 Total Archeological & Preservation Costs: Archeological Costs $379, 047 Valenzuela Adobe Preservation Costs (Well) _ 26, 119 Total Costs $405, 166 % of Total Construction Costs Represented by Archeological & Preservation Costs 3.82% Phase 2 : Total Project Construction Costs including Archeological, Preservation & Restoration Costs * $2, 600, 013 Total Archeological, Preservation & Restoration Costs: Archeological Costs (When Reports Completed) $148, 184 . Preservation of Historic Cistern Costs 59, 103 Restoration of Avila Adobe Costs 268,8§7 Total Costs $475, 154 % of Total Construction Costs Represented by Archeological, Preservation & Restoration Costs 18. 28% * Does Not include Carrying Costs Franciscan Promenade Project Analysis of Archeological Costs - Phase 2 19ss- Present --Description-_ Cont.Amt. Extras Total Testing Mitigation A -Chambers Group work done in 88-89 48,871 4,052 44, 819 B 8/9/90 28, 382 28, 382 13, 344 15, 038 - 12,492 12.492 12,492 40,874 C 9/10/90 22, 526 - 22, 526 7,402 15, 124 D 11/6/90 4 ,725 4 ,725 2 ,630 2 ,095 735 735 735 5,460 E 1/8/92 23 ,698 23, 698 23, 698 F Native American Indian Testing - 6,755 6,755 6,755 ---- G Cistern Restoration 59, 103 59..103 - 59 . 103 TOTALS 207,287 47 ,410 155,877 Paid to date: A 48,871 B 32 ,492 C 11, 500 D 5,460 E 10,500 F 6,755 G 59 . 10 Total 174,681 Developer Proposal For Reimbursement: Policy Used for Reimbursement of Phase 1 Costs: 50% of Testing Costs 23 ,855 75% of Mitigation Costs 119.908 Total 143,763 Current Policy: 50% of Testing Costs 23,855 25% of Mitigation Costs 39 .969 Total 63,824 Possible Compromise Policy: 50% of Testing Costs 23,855 50% of Mitigation Costs 79 ,938 Total 103,793 i S-an juan Gapistrailo (.olnlnilrlitV Rcdeccloh:nrnl gunc� January 10, 1991 Mr. Paul Farber General Partner Franciscan Plaza Investment Group 31781 Camino Capistrano, Suite 303 San Juan Capistrano, California 92675 Dear Paul: On December 15, 1987, you entered into an Owner Participation Agreement (OPA) with the San Juan Capistrano Community Redevelopment Agency (Agency) as General Partner for the Franciscan Plaza Investment Group. Under the terms of this OPA (Section III.A.301.2. ) , you agreed to pay 100% of the cost of Public Improvements associated with the Development of Franciscan Plaza, including the payment of $35, 000. 00 for railroad platform improvements and associated landscaping. As you know, over the last several years you have expended a portion of this $35, 000. 00 on the design concept for the railroad platform under the direction of Agency staff. Recently, agreement was reached on a concept plan for the railroad platform, and we are ready to proceed with the development of working drawings. The Agency is about to enter into an Agreement with Blair Ballard Architects to complete the design development work for the railroad platform. Under discussions with Agency staff, you have agreed to pay for this design development cost in compliance with the OPA section cited above. You have supplied an accounting of the costs expended to date, and reviewed and approved the proposal submitted by Blair Ballard Architects dated December 21, 1990 (attached) , for the design of the platform. You have further agreed to pay the remaining design costs per this proposal at a cost not to exceed the amount of $25,0000.00. 32'100 Pasco Adelanto San]Llitn Capistrano C ilif<asnia 926T') 71-1-19:3-1171 * • January 10, 1991 Page 2 Under the terms of the proposal and the Agreement to be executed between Blair Ballard Architects and the Agency, you will be responsible for the payment of these services not to exceed a cost of $25, 000.00. You agree to make an initial payment of $2, 375.00 to Blair Ballard Architects, which will be credited to your account, upon execution of the above-mentioned agreement between the Agency and the Architect, and make monthly progress payments within five days of receipt of an approved invoice by the Agency. You further agree to all payment terms outlined in the proposal and Agreement. Your signature below and return of this letter indicates your agreement with the above statements and agreement to pay the design coasts /olat' ' nedabove at a cost not to exceed $25, 000.00. �'A PaIll Farber, General Partner Franciscan Plaza Investment Group Thank you for your assistance with this project. We are looking forward to the completion of the design and the development of the platform. Sincerely, Stephen B. Jul an Executive Director SBJ:CW:rmb PUBLIC JUARING11 -- ;�>1. JOINT_ PUBLIC HEARING ON PROPOSED AMENDMENT TO OWNER P tTICIPATION AGREEMENT FM PROPERTY LOCATED AT 31781-31831 CA INO CAP TRANO FARB R FRANCIS CM PLAZA) 600.40 Prpposal: Consideration of an amendment to the Owner Participation Agreement dated December 15, 1987, between the Redevelopment Agency and Franciscan Plaza Investment Group to reimburse the developer for significant costs associated with archaeological investigations and completed mitigation measures incurred during construction. WrilLt—en Communication: Report dated October 17, 1989, from the Executive Director recommending approval of the amendment and listing a chronology of events associated with the archaeological investigations for this project. The Agency's financial contribution would amount to 73 percent of the total costs involved (approximately $277, 365) , of which $75, 000 has already been paid by the Agency. Jeff Parker, Assistant to the City Manager, made an oral presentation, noting that 31 parking spaces would be allotted to the City at the Plaza for public parking. Pu l Lc H_earin_a: Notice having been given as required by law, Mayor Hausdorfer opened the Public Hearing, and the following person responded: (1) Paul Farber of the Franciscan Plaza Investment Group, noted the costs involved for the project. There being no further response, the hearing was declared closed with the right to reopen at any time. Adoption of Resolution: It was moved by Director Schwartze, seconded by Director Buchheim, that the following Resolution be adopted, approving financing in the amount of $277,365 from the Redevelopment,d►gency for reimbursement of archaeological investigation costs: -2_ 10/17/89 r , 0 ESSOLUTION NO. CRA 89- APPROVING AMENDMENT IQ..OWNER PARTICIPATION AGREEMENT(FRANCISCAN PLAZA INVESTMENT GROUP/FARBER) - A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CITY OF SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, APPROVING AN AMENDMENT TO AN OWNER - PARTICIPATION AGREEMENT WITH FRANCISCAN PLAZA INVESTMENT GROUP The motion carried by the following vote: AYES: Directors Schwartze, Bland, Buchheim, Hausdorfer, and Chairman Friess NOES: None ABSENT: None Mr. Julian noted that with this authorization, the Redevelopment Agency would maintain ownership of the ` archeological finds for the City's benefit and future display. BOARD ACTIONS 1. APPROVAL OF WARRANTS (30Q.30) It was moved by Director Buchheim, seconded by Director Hausdorfer, and unanimously carried to approve the List of Demands dated October 5, 1989, in the total amount of $38, 680.59. 2 . CONTRACT FOR CIVIC CENTER MASTER PLAN (IBI) (600.40) Written Communication: Report dated October 17, 1989, from the Executive Director, recommending that a contract be approved with the IBI Group to prepare the Civic Center Master Plan, at a cost not to exceed $146,000. Approval of Contract: It was moved by Director Buchheim, seconded by Director Hausdorfer, and unanimously carried, that a contract be entered into with the IBI Group to prepare the Civic Center Master Plan, at a cost not to exceed $146,000. -3- 10/17/89 3- 10/17/89 San Juan Capistrano Community Redevelopment Agency b a ,,R r , A .w1�ee1Xm ..rx+rxi.dvHen i�f nr3 xii MEMORANDUM TO: Interested Persons FROM: Mary Ann Hanover, City Clerk DATE: October 19, 1989 SUBJECT: Franciscan Plaza - Amendment Owner Participation A reement At their meeting of October 17, 1989, the Community Redevelopment Agency Board of Directors conducted a joint public hearing with the City Council to consider amending the Owner Participation Agreement for the Franciscan Plaza project. The Amendment, which will reimburse the developer a total of $277,365 for archaeology work required at the site, was approved by both the Agency and the City Council. If you have any questions, please do not hesitate to call. MARY A HANOVER MAH/cj cc. Friends of Historic San Juan Capistrano Frank Ducey Rita Skora Kerry Keeler 32400 Paseo Adelanto San Juan Capistrano C:alilornia 92675 714.493-1171 San Juan Opistrano Conlin till it Redeveiopment . Agmc] ' October 19, 1989 Mr. Paul Farber Franciscan Plaza investment Group 26300 La Alameda, Suite 470 Mission Viejo, California 92691 Re; Amendment to Owner Participation Agreement Dear Mr. Farber: The Board of Directors of the San Juan Capistrano Community Redevelopment Agency at its regular meeting held October 17, 1989, conducted a joint public hearing with the City Council to consider amending the Owner Participation Agreement for the Franciscan Plaza project to authorize repayment of $277,365 from the Agency for archaeological costs. Following that hearing the Agency Board of Directors approved the amendment by adopting Resolution No. CRA 89-10-17-1. The City Council approved the amendment by adopting Resolution No. 89-10-17-2. Enclosed for your files are a fully-executed copy of the First Amendment to the Owner Participation Agreement; a copy of Resolution No. CRA 89-10-17-1; and, a copy of City Council Resolution No. 89-10-17-2. If you have any questions, please do not hesitate to call. Very truly yours, Mary An anover, CMC Agency Secretary MAH/cj Enclosure cc: Executive Director (with agreement) Cass Walker (with agreement) 32400 Paseo Adelanto San Juan Capistrano California 92675 714-493-1171 AGENDA ITEM October 17, 1989 TO: Chairman and Members of the Agency Board of Directors FROM: Stephen B. Julian, Executive Director SUBJECT: Joint Public Hearing of the City of San Juan Capistrano and the San Juan Capistrano Community Redevelopment Agency on the Proposed Amendment to an Existing Owner Participation Agreement with Franciscan Plaza Investment Group located at 31791 - 31931 Camino Capistrano. SITUATION A. Summary and Recommendation - On December 15, 1987, the Redevelopment Agency entered into an Owner Participation Agreement (OPA) with Franciscan Plaza Investment Group. The original OPA provided financial assistance towards the construction of a parking structure. The entire project encompasses approximately 18,500 square feet of restaurants and speciality shops, a five screen movie theatre complex, and a 352 space parking structure. During the demolition of structures on the site, archaeological foundations were discovered and construction was halted. The City's Environmental Review Board determined that additional study was required. On May 3, 1989, the Redevelopment Agency authorized the Executive Director to enter into a contract with the Chambers Group to preform the additional archaeological investigation and to reimburse the Developer for a portion of the previous archaeological costs. The proposed OPA provides the mechanism for reimbursement of the Developer for the significant costs associated with the archaeological investigations and implemented mitigation measures. It is recommended that the Owner Participation Agreement Amendment be approved to reimburse the developer for these archaeological costs. B. Background - Development plans for the Franciscan Plaza were approved by the City in 1987. _ A negative declaration was issued for the project by the City's Environmental Review Board. The Developer was required to provide an on-site archaeologist to monitor the site during the initial stages of demolition and grading. The developer hired the Chambers Group for site monitoring. No cultural resources were anticipated on the site because of the previous 20th Century development on the site, including underground parking in the old Franciscan Plaza, and a large basement level in the old packing house. During the demolition and construction on the site, the archaeologists discovered Mission period ruins. Work was stopped and the ruins were investigated. The following is a chronology of the events associated with this investigation. FOR CITY COUNCIL AGEND l Agenda Item -2- October 17, 1989 1. Project received final approval of the City December 16,1986 2. OPA approved by the Agency December 15, 1987 3. Archaeologist suspends work during site Demolition April 6, 1988 4. Preliminary field report and recommendations submitted to the City April 23, 1988 5. Additional archaeological work authorized by the ERB April 26, 1988 6. Agency authorizes payment participation for additional archaeological work May 3, 1988 7. Developer authorizes archaeologists to investigate mitigation measures for the site May 16, 1988 8. Staff, Archaeologist, and Developer meet to discuss mitigation for Avila Adobe May 26, 1988 9. Completion of additional testing reports submitted June 1, 1988 10. ERB considers report and recommendations June 2, 1988 11. City Council approves mitigation plan except for central foundation June 7, 1988 12. Investigation of central foundation complete July 8, 1988 13. ERB considers central foundation report and recommendations August 5, 1988 14. City Council authorizes no further preservation for the central foundation and removal August 16, 1988 15. Final Report to be received October 24, 1989 The chronology illustrates how closely the Agency and City Council have been involved in the process to evaluate the archaeological resources and implement appropriate mitigation measures. At the time approval was given to proceed with mitigation of the resources, cost estimates were not available. To date $27,681 has been spent on preliminary testing and an additional $351,366 has been spent on detailed testing and mitigation, for a total project cost of $379,047. Agenda Item -3- October 17, 1989 C. Archaeology Cost Reimbursement - City Council policy provides for a 50150 split of archaeological research of this type. However the costs associated with the archaeology work undertaken were extraordinary and the cultural resources are of benefit to the entire community. At their May 3, 1988 meeting, the Agency agreed to revise this policy to allow the Developer reimbursement of 50 percent of the archeology costs incurred in monitoring and prelimiary testing of the resources and reimbursement of 25% of the costs associated with additional testing and investigation. At there meetings on June 7, 1989 and August 16, 1989 the City Council approved the implementation of extensive mitigation measures to preserve archaeological resorces located on the project site. The California Enivronmental Quality Act allows the City to require the applicant or developer to pay one-half of the cost of archaeological work provided it does not exceed one-half of the total projected cost of the project. Staff has worked with the Developer regarding the reimbursement for the extraordinary archaeological cost associated with this project. Under the proposed OPA Amendment the Agency would pay 50 percent of the archaeology costs associated with the testing of the site and 75 percent of the costs associated with implementing the mitigation measures. The Agency would reimburse the developer a total of $277,365 of which $74,899.53 has already been paid. Due to the significance of the costs associated with archaeology, the Agency's involvement in the project in terms of the initial financial assistance for the parking structure, and the Agency's commitment to assist in the costs of archaeological testing and mitigation; the Agency has, negotiated certain revision to the initial OPA. Under the terms of the OPA Amendment, the Agency would have sole ownership of all archaeologically significant resources located on the involved parcels. The Developer would have the right to display the resources. The Agency would obtain access to 131 parking spaces available for commuter parking rather than the orginal 100 spaces. The entire structure will be used for public parking purposes including tenant, patrons, and commuters. The Agency shall have an option to purchase the structure and will have management and operation responsibility for the structure. PUBLIC NOTIFICATION The required legal notices were published on October 3, 1989 in the Orange County Register and on October 5, 1989 in the Capistrano Valley News. No other public notice is required by law. COMMISSIONIBOARD REVIEW,RECOMMENDATION Not applicable. Agenda Item -4- October 17, 1989 FINANCIAL CONSIDERATIONS Archaeological costs associated with this project totaled $379,047. Under the Amendment to the OPA, the Agency's contribution would equal $277,365 or approximatly 73 percent of the total costs, approximately $75,000.00 has already been paid. Funds are currenity available in the Agency's specialized services account for reimbursement of these costs. Under the terms of this OPA Amendment, no expenditure of City funds is required or requested and No obligation is placed on City revenues. ALTERNATE ACTIONS 1. By motion, adopt the resolution approving the OPA Amendment and authorize the expenditure of the funds. 2. Do not adopt the resolution. RECOMMENDATION By motion, adopt the resolution approving the OPA Amendment and authorize the expenditure of the funds. Respectfully su d, tep en B. Jul' n, Executive Director 5BJ:CW:mm GC W/c 1089-01 RESOLUTION NO. CRA 89-10-17-1 APPROVING AMENDMENT TO OWNER PARTICIPATION AGREEMENT (FRANCISCAN PLAZA INVESTMENT GROUP FARBER A RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, APPROVING AN AMENDMENT TO AN OWNER PARTICIPATION AGREEMENT WITH FRANCISCAN PLAZA INVESTMENT GROUP (FARBER) 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 Amendment to the Owner Participation Agreement (the "Agreement") with Franciscan Plaza Investment Group (the "Participant") toward the contribution by the Agency for archaeology work on the site (The "Site"), as described in the Agreement, in the San Juan Capistrano Central Redevelopment Project Area; and, WHEREAS, the Participant has submitted to this City 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 the City Council held a joint public hearing on the Agreement, having duly published notice of such public hearing and made copies of the proposed Agreement available for public inspection and comment; and, WHEREAS, the Agreement provides for archaeology work, which benefits the project area and is essential to allow development according to the Redevelopment Plan, the archaeology work undertaken would not have been feasible without the financial participation by the Agency; and, WHEREAS, the Agency has duly considered all terms and conditions of the proposed Agreement and believes that the redevelopment of the real property pursuant thereto is in the best interests 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, a Negative Declaration for the Site Development proposed in the Agreement has been approved by the City of San Juan Capistrano Environmental Review Board on November 25, 1986, and no modifications to the proposed Site Development have been made which would require additional environmental review. NOW, THEREFORE, BE IT RESOLVED, by the San Juan Capistrano Community Redevelopment Agency, City of San Juan Capistrano, California, as follows: 1. The Agency has received and heard all oral and written objections to the proposed Agreement and to other matters pertaining to this transaction, and that all such oral and written objections are hereby overruled. -1- 0 • 2. The Agency hereby finds and determines that the public and common improvements to be financed in part by the Agency are a benefit to the Project Area and are essential to its development according to the Redevelopment Plan and that the costs to provide said improvements would be infeasible without the contribution by the Agency. 3. The Negative Declaration approved by the City's Environmental Review Board on November 25, 1986, adequately considered all environmental impacts potentially caused by the proposed Site Development as there are no substantial changes in the proposed development which would alter the potential environmental impacts of the project. 4. The Chairman of the Agency is hereby authorized to execute the Agreement on behalf of the Agency. 5. The Executive Director of the Agency (or his designee) is hereby authorized, on behalf of the Agency, to sign all documents necessary and appropriate to carry out and implement the Agreement and to administer the Agency's obligations, responsibilities and duties to be performed under the Agreement, and related documents. PASSED, APPROVED, AND ADOPTED this 17th day Of October 1989. KENNETH E. FRIESS, �C� MAN ATTEST: AGE CSEC R -2- STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO ) 1, MARY ANN HANOVER, Secretary of the San Juan Capistrano Community Redevelopment Agency, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Resolution No. CRA 89-10-17-1 adopted by the Board of Directors of the San Juan Capistrano Community Redevelopment Agency, at a regular meeting thereof held on the 17th day of October , 1989, by the following vote: AYES: Directors Schwartze, iiausdorfer, Buchheim, Bland and Chairman Friess NOES: None ABSENT: None (SEAL) ARY ANN A OV R; AGENCY SECRETARY -3- GENERAL This policy is issued by: EF- CHANGE The Exchange or Cn any designated on the reverse side as nAer 7th Edition ENDORSEMENT ❑ A stock miurOnce company, n ca}ied the company City and State _ �� Prod. Named Insured - FRACiS`CAN PLAZA INVESTMENT T C7K� 2C'95 3 Count A CALIFOiMIA LIMITED Ak.'TNE ffj1V Pr mot' A c't. Na. 26300 LA AIpMEDA SUITE #470 97 07 33 1484 4S 32 MISSION Agent Policy Number but��o ti� �IC�.k- �r,(�:Ol/1.Ng�� �lsi Expiration Date Effective Date 3..,2"41 Standard Time in Coliforn if Term Policy Arkansas, Washington, Idaho and Oklahoma) . Atlniv. Pate n Loan Number $ Previous Balance Owing A T T A C H $ Pro Rota Premium Due +} ❑ INVOICE ONLY T O Y O U R $ P O L I C Y $ Premium Required to Renew Policy $ Payments $ Credits $ 44 BALANCE $ 44 REFUND In consideration of the premium it is agreed that the above numbered policy is hereby changed to conform with the entries appearing hereon ONLY THE ITEMS CHECKED BELOW ARE CHANGED ❑ Nome of lrtsured as shown above Former ' ❑ Anniversary Dote ❑ Inception Date Nome Rates E ❑ Property Location(same as mailing address unless shown below) ❑ Mailing Address ❑ Premiums Am ET-ios a7m eo Ftp: Tim CITT or- sm JAW CAPISTF ANO AND THE SAW %U4N CAPISTRA"D REDEVELOFW.NT AGENCY Dwelling/Building ❑ Description _ O WELLING,BUILDING ROOF UNIT! IONS UNLESS OTHERWISE lT ATC aI Removal Permit ❑ Reinstatement (see conditions on reverse side) ❑(we condition, on reverse side) Subsequent ❑ Amount of insurance ❑Installments $ Rem DESCRIPTION OF PROPERTY I Ord Amount of Inver- New Amount of insurance No. EVERY ITEM AFFECTED MUST 6E INDICATED. ITEMS NOT LISTED ARE NOT AFFECTED. ante Under This item Now in Fora Uni This Isom $ $ $ s s a $ Mortgagee's Nome $ $ orndlor Address changed as shown: ❑ Morigagee or Additional Interest Countersigned AVTNORIZED RE-RESENTATTVE Continued on reverse side 58-0039(ACT-EF-39)7TH EDITION 5-87 11001 i0015T PRINTED IN U,S.A. RE'MOVAI PERMIT(when Indicated on the reverse side)The Insurance under the' contents 'item{s}of the Policy numbered no the reverse side.Is hereby transferred to cover said property In the new location only and ceases to cover in the old location from the effective date shown on the reverse sloe It Is agreed,however,that if said property be in process of removal the insurance ruder said IterR{s}shall cover until removal 15 fully completed in no case for more than lhirty days from date of this permit nor beyond the term of!his policy]in the old lacanon and in trip new location In Ina!pi plrtioAA which the value of said property in each location shall bear to the value In all locations, and thereafter shall cover only in,the new location RENtTAYEMENT .vrer indicated on the reverse side)This Policy 15 hereby Ieinstated at noon standard time tram eftechvC date shown on the leverse Side 2t location of property involved un!r I.ancel lefj;"py.WLdlen nalrce as provided for rn the pnlrcy The anniversary date is hereby amended to he as shown on the reverse side instead of as heretofore Nothing herein contained shall be held to vary_alter,waive ar extend any of the terms,rondrtlons,agreements or limitations of this Policy other than as stated,and this endorsement when Counter- signed, becomes pars of the policy numbered on the reverse side _SLI. _L..... The endorsrl nowd below applias only To your insured'0jcalwri ill,fie,01 lrill,/cw,h�stafts f.nzond C.diitornid Giro Mont."'.as Nevski Oregon Ijfah o' Aj,,vinplon Further it applies only I(7 huildil IrSurS'!ondeY Coverage A ,r reit ':es tiro Ma,tgd,le rlaure in Serf,on r Cr)ndrhons of fhe pnhcy LEHOEWS LOSS PAYABLE EHDORSEMEW( uH rM aF,u^�`, 'h,,I'll, . ,r ,;,ra to rhe Payee named in the Declarations of this policy. '.., rs,'rs:rr r„ilirl l r.n n,,1'r':e`nnr^'o.i "ie i^hrfer' Ir*.wGarever!grins �d iv •dr�r ,:y a;. r ..wren's ?err ,.I.ei'(f1•, T,d r 1 ".i'., , um1� � :fid'.; ,r � � �I'11' 'i;.. apal.rl'; ,1herw,sp 11t _,. r Ila',r; nI",:T, r)r endo,sel,r r,n. r I' 11=rein i+'.fie es','Ileronly Th [1,,, W..- Trip iF!�ulrr r so" ,•r s nrd sn;; ,,r 'r�r Ie,rr pe'ded f�<t1 by'a 1y �. v.r err m ..�ange re.'�rsr:'lr�The awrei,l„N, as.allJrl of'I)(!subiecT tale f;�I'IlM r7;by r.he cu<lxotescemerl?lir IF I'ie 11,:!1,G'rnr,r e,'kale of ary r•'Y e:,roUerTy covered by this pulrcy by lI•tue of Iry nl:)rh}n(,P us' ny"ny breach of wrr r..•ty a[' oa',nsir,r, negiector nun ,y.L. . q I,J rit the p,nVI,.b:,5 orI!Y,iuCi!1^y aif and ell Irdera n'Iw or heleat:er.:I:d f.he(I WaretCr i;hF!I rInXed Ino:d)imwof nior1gd,Ior lrusnt r den:jee ewrle.r leer .>,,:rl mom, r_r.rod`en,occl,pa'I or by the d(Willr :•P It. - h 're rr.;''Jr.,.", t .Il;, -rl fir fir;t!- Iry I`ern r ether of chem a Their agI".Ir or wh'-n the,ta,lnd' nrnvenr J.hi'';I XI:,li 1puffr e- Irte 'n^a:rr:, N oorr`l ,. 11,t, I1,: .111,- f.I it�.,I- •hr- Y,'.I - "1' nnllr rof Insura nS.F r. ' f1w ,,,7,r,., 111;'1' ,Ir, 1'l t—!;rli ',h'hlw r�r i'I(i, ,, . ,'1^',1.1",., I'r , I.. Will e ,.,, I'�Lrl._;1 IF !1iii-er :dr!, '.-Fn _n, ah;,r, "r'r fl'r fire, !hr [roiled or C)n aCCUIIrtI of aP r'r :nifn'r Fre^',u: :�IC' ,:�y r,r!,d!Vs!rr.- �ir',tl w1lhl'?nP'.,nilrPCr tr,.:.5•e,Ily .'J,ll . ar'r ,•r r:'e crag r 'na e_c:a,;i� of;'Ile continual 9f the righ'.>:;r the'_e1ae rounder[hat:^e Lender yr Y�,6' sc notllied n w'ilirtp by Iti Company of the fad•.-re of lit: Tlsured'u pay n' 1 �u If,he.r,.u; CERTIFICATE AS TO EVIDENCE OF INSURANC X❑ PRIMARY�INSURANCE� The Exe or Company designated on the reverse side as nu 2 �. ❑ I EXCESS \ l wsuRANCE f Excess over Primary with Company desigryated on reverse side as otter THIS IS NOT AN INSURANCE POLICY-THIS fS ONLY A VERIFICATION OF INSURANCE, Il DOES NOT IN ANY WAY AMEND, EXTEND OR ALTER THE COVERAGE PROVIDED BY THE POLICIES LISTED BELOW. Named Insured . FRANCISCAN PLAZA INVESTMENT GROUP Address . A CALIFORNIA LIMITED PARTNERSHIP Excess Policy or Certificate Number 26300 LA ALAMEDA SUITE #470 97 07 337 14$9 95 32 MISSION VIEJO CA 92691 Agent Policy Number This is to certify that policies for the above Npmed Insured are in force as fol lows: Effective from: 3-24-88 To: at which time this certificate becomes void ® or continuous until cancelled if box"X"d. COVERAGE COMBINED LIMITS OF LIABILITY COVERED NOT AUTO COVERED LIABILITY LIMIT(S) ) X tNcwDl:is; H Owned Bodily Injury $ ,000 each person BOTH PRIMARY X Hired AND EXCESS 000 each occurrence (if excess X Non-Owned Property Damage $ 000 each occurrence applicable} ❑ ® Employer's Non-Ownership p y g Contingent Liability Single Limit Liability for Coverages checked 0 above $ 000 each occurrence GENERAL LIABILITY M&C-OLT Bodily Injury $ 000 each person ** Owners & Contractors $ 1000 each occurrence ® ❑ Contractual III, 000 annual aggregate products*** Elevators Property Damage $ 1000 each occurrence ❑ ® Products and/or 000 annual aggregate Completed Operations products *** $ 0000 ,000 each occurrence Single Limit Liability for Coverages checked Z above $ ,000 ann al aggregare Products *** ❑ ® Cargo $ ,000 each vehicle $ 000 each occurrence *Includes Goods or Products Warranty, Written Lease of Premises, Easement Agreement, Municipal Ordinance Agreement, Sidetrack Agreement, Elevator or Escalator Maintenance Agreement only, unless accompanied by specific endorsement providing additional Contractural Coverage. * *Not Applicable in Texas ***In Texas the aggregate also applies to owners and contractors protective, contractual and/or completed operations. ❑ Descnbed ❑ Descnprian Wowowed OWNED YEAR,MAKE,TYPE OF BODY,LOAD CAPACITY IDENTIFICATION NUMBER AUTO MOBILES, LAST 3 IF DIGITS COVERED SHOWN 1489 95 43 Umbrella Liability $ 10 000 retained limit POLICY NUMBER $ 5,000,000 each occurrence $ 5,nnn,H0 aggregate Upon cancellation or termination of this policy for any cause the Company will provide 30 days advance notice in writing to whom this Certificate is issued. Notica of cancellaon of the primary coverage automatically terminates excess coverage. Certificate issued Tis THE CITY OF SAN JUAN CAPISTRANO AND Name THE SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY and 32400 PASEO ADELANTO Address . SAN JUAN CAPISTRANO CA 92675 ATTN: CITY CLERKS DEPT Countersigned 5 AUTHORIZED REPRESENTATIVE This Certificate supercedes any previously issued certificate. 58-01%7 1$8 1601 W1200 C11200 PRINTED IN U.S.A. QM ET-1W IT. ED-TION ADDITIONAL INSURED ENDORSEMENT Reference is ode to the attached Certificate as To Evidence of Insurance. It is agreed that: The person or organization to whom the attached Certificate is Issued is on additional insured. This applies only with respect to liability arising out of the acts or omissrons of the named insured. It applies only to the coverages indicated on the Certificate. This extension of coverage does not apply 1. To liability prising out of the negligence of the additional Insured, its agents or employees, unless the agent or employee is the named Insured. 2. To any defect of material, design or workmanship in any equipment of which the additional insured is the owner, lessor, manufacturer, mortgagee, or beneficiary. 3. To any vehicle liability when the named insured is not the owner or does not have care, custody, or control of the vehicle. The intent of this endorsement Is to provide the coverage as Ooted above and In the Certificate. If any court shall interpret this endorsement to provide coverage other than what Is stated above then our limits of liability shall be the limits of bodily injury liability and property damage liability specified by any motor vehicle financial responsibility law of the state, province, or territory where the namrd insured resides If there is no such law, our limit of liability shall be $5,000 on account Of bodily injury sustained by one person in any one occurrence and subject to this provision respecting each person, $10,000 on account of bodily iniury sustained by two or more persons in any one occurrence. Our total Ilnb6ity for all damages be- cause of all property damage sustained by one or more persons or organizations as the result of any one occurrence shall not exceed $5,000_ This endorsement does riot increase the coverage limits. This endorsement becomes part ar $he policy to which if vs attached and supersedes and controls anything in the policy'contrary hereto but is otherwise subject to the Declarations, Insuring Agreements. Exclusions and Condllions thereof (-CID-T!CJNAL ENSURE❑ END l 56-0108 7TH EDITION 1-88 1201 SH/1000 CG A, ---�— 2. OFFER OF CAPPELLO PROPERTY EASEMENT RIVER STREET STORM DRAIN - ARCHITECTURAL CONTROL 86-3 FRANCISCAN PLAZA/FARBER) 670.50 10 -IV --- Written Communications: Report dated August 2, 1988, from the Director of Public Works, forwarding an easement for a storm drain right-of-way granted from the Agency to the City. The storm drain will be constructed as part of the improvements for the Franciscan Plaza and will extend from Verdugo Street to Trabuco Creek via Los Rios and River Streets. Approval of Easement Offer: It was moved by Director Bland, seconded by Director Buchheim, and unanimously carried to approve the offer of easement for storm drain use to the City of San Juan Capistrano. The Chairman and Agency Secretary were authorized to execute the document on behalf of the Agency for forwarding to the City for acceptance. INDIAN CULTURAL CENTER IN LOS RIOS Chairman Friess requested that staff prepare a time line for development of the t Indian Cultural Center to be located in the Los Rios area. The Executive Director € recommended the item be scheduled for the first meeting in September. ADJOURNMENT There being no further business before the Board, the meeting was adjourned at 8:26 p.m., to the next regular meeting date of Tuesday, August 16, 1988, at 7:00 p.m., in the City Council Chamber. Respectfully submitted, �AAAAN N ER, AGE N C SECRETARY ATTEST: KENNETH E. FRIESS, CHAIRMAN -2- 812/88 none of Air irn poll PUBLIC HEARIN G. CITY OF SAN JUAN CAPISTRANO NOTICE OF JOINT PUBLIC HEARING BY THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO AND THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY PROPOSED AMENDMENT TO OWNER PARTICIPATION AGREEMENT (FRANCISAN PLAZA) NOTICE 15 HEREBY GIVEN, that on the 17th day of October, 1989, at 7:00 P.M., in the City Council Chamber, 32400 Paseo Adelanto, San Juan Capistrano, California, the City Council of the City of San Juan Capistrano (the "City") and the San Juan Capistrano Community Redevelopment Agency (the "Agency") will hold a joint public hearing pursuant to the California Community Redevelopment Law (Health & Safety Code Section 33000 et seg.) for the purpose of considering the approval of an Amendment to an existing Owner Participation Agreement (the "Agreement") with Franciscan Plaza Investment Group originally approved on December 15, 1989. The Amendment provides for an increase of the reimbursement of funds expended for archaeology costs associated with the project. The proposed Amendment calls for the an increase in Agency financial participation to reimburse the costs associated with unanticipated and necessary archaeological investigations on the property. In return the Agency is receiving control over the archaeological findings, as well as receiving other consideration from the participant. The property is located at 31831 Camino Capistrano. The purpose of the public hearing is to consider: The proposed Amendment to the Owner Participation Agreement between the San Juan Capistrano Community Redevelopment Agency and the developer; and, All evidence and testimony for and against the approval of the Amendment. At any time not later than the hour aforesaid set for the hearing, any person objecting to the proposed Amendment or to the regularity of any of the prior proceedings may file in writing with the City Clerk a statement of his or her objections thereto. Any persons or organizations desiring to be heard may appear before the Agency and the City Council and show cause why the Amendwent should not be approved. At the aforesaid hour the City Council and the Agency shall proceed to hear and pass upon all written and oral objections. 0 Franciscan Plaza Investment Group Page 2 The following documents are available for public inspection and copying during regular office hours (8:00 A.M. to 5:00 P.M., Monday through Friday) at the office of the City Clerk and Secretary of the Agency, City Hall 32400 Paseo Adelanto, San Juan Capistrano, California 92675: A copy of the proposed Amendment; and, A copy of the proposed Owner Participation Agreement between the San Juan Capistrano Community Redevelopment Agency, City of San Juan Capistrano and the Developer. Those desiring to be heard in favor of, or in opposition to, this item will be given an opportunity to do so during such hearing or by writing to the City Council at 32400 Paseo Adelanto, San Juan Capistrano, California 92675, Attention: City Clerk/Agency Secretary. For further information, you may contact the City Clerk's Department at 493-1171. MARY ANN N VER, CITY LERK FOR OFFICE USE ONLY: STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. AFFIDAVIT OF POSTING CITY OF SAN JUAN CAPISTRANO ) AND PUBLICATION MARY ANN HANOVER, being first duly sworn, deposes and says: That she is the duly appointed and qualified City Clerk of the City of San Juan Capistrano; that on September 28, 1989, she caused the above Notice to be posted in three (3) public places in the City of San Juan Capiscrano, to wit: City Hall; Old Fire Station Recreation Complex; Orange County Public Library AND, that on September 28 and October 3, 192j, the above Notice was published in the Capistrano Valley News newspaper. &kV42' I -a A' L��4� MARY ANN HA OVER, CITY CLERK City of San Juan Capistrano, California 1r H E O R A MI �' N T Y This space is for the County Clerk's filing Stamps �e 9RECEIVED Q$N Grana A„e Sass Ana CA 92701 -------------T— NMI PROOF OF PUBLICATION � OF � SM (2015.5 C.C.P.) t Illya I� hi STATE OF CALIFORNIA, SS. a� I t I y. County of Orange, ` Proof of Publicali p 'co ' e Juanita Folkerts ly igm 61 pilar I �J up a- M ty Proposed amno°�� + ,er common t v t I am a citizen of the United States and a resident of � �;,"�' at���enr. P a r t i c i p a t 1 0 purpose of conal n%the the County aforesaid; I am over the age of eighteen a� tto Years, and not a party to or interested in the above =� entitled matter. 1 am the principal clerk of the printer ( Franc i son pZQq In a+00 prong: zinullY�enfgroup aOrn of The Orange County Register, a newspaper of ` �tbl!°nt fipr��v *UOn Incr me ram T; general circulation, published in the City of Santa Ana, man r County of Orange, and which newspoper has been T prP A ni odiudged a newspoper of general circulation by the aI a6ygwr h`arfa In- tron Niru r Pins ts. Superior Court of the County of Orange, Slate of assote�te +°unonl•I California under the dote of November 29, 1905, Case rcrellaa�olaritaaal1l�°+ roar�r:l on ltle PrOperW In return Number A21046 that the notice of which the annexed is Aoenr�r is r�4�IY trel d�not,as Mell as r •ring a Printed copy, has been published in each regular and oih �an�:} fanr+tr�. entire issue of said newspaper and not in any PC[oapc�apt0 a r?, arAno Thii r sstninae of the Public supplement thereof on the following dotes, to wit: ria isfocan,ider: The proposed Amendment to the owner Participation m Aoreeent between the son Juan Capistrano Community Redeve�ff��opmant Atiyenty and Oct. p. �daevvm°paaknsfn}dhd�t appro al of�fTl�=ment. At any time not later than the hour aforesaid set for the to p,any pens cbl�finp or+o PrregluE + ore ppry►p�p oc r�iltys mp°ty le 1R Writlna w!t!1 tAe"X larkk cp�stsRsmerrt of his or her abiectlons the o�Any soror9ani qua IW tief"atth�eard cr a P tMrCity Coon lle�mesnho cpause 4 y tho th°citAvC+onunefloatW+M aeneY shall p f wr t!hear ia d Ora S. The owing uments are I certify (or declare) under penal ity of perjury that the avail in teY},� u�rInr`pp°`' lar u�io rs(�: A.M.too 5:00 M., n a throw h foregoing is true and correct. Fr i of +Iia. ce or t�i City Clink an 11, � Executed at Santa Ana, California. caA°nnai It 11, s n '�Ian cac ry-o €wl pro year` !. A cOpY of the prop05ed t;and, ad owror 1 3 O C t • aplsfrd Date . . . . . ... . . . ... .... ... . .. . . . . . . . . . 19 .8.9 . . . n! ni edevelo n men AalneY, C tY of San J4pn Cea�pistrragrw and M!De- a n i t a Fol e r t s NMror ar fn te b° +d 3te� w Ivan I+ann Signatures°°d Y Af IDV Wdsi PROOF OF PUBLICATION 1�Cc NOTICE OF TRANSMITTAL - LEGAL PUBLICATIONS TO: REGISTER Public Notices, Juanita FOR PUBLICATION ON: TUESDAY, OCTOBER 3, 1989 DOCUMENT TO BE PUBLISHED: NOTICE OF JOINT PUBLIC HEARING - PROPOSED AMENDMENT TO OWNER PARTICIPATION AGREEMENT (FRANCISCAN PLAZA) PROOF OF PUBLICATION: Please send to: City Clerk's Department City Hall 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (714) 493-1171 AUTHORIZED BY: DATE: September 29, 1989 Date of Public Hearing - 10/17/89 Date notice published - 10/03189 Date affidavit received - 101919q _, Date notice posted in designated posting places (3) - 09/28/89 Date notice posted on property - N/A Date of mailing notice to interested parties - 09/28/89 Date notice transmitted to City Manager's Office - 09122/99 FOR OFFICE USE ONLY: STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. AFFIDAVIT OF POSTING CITY OF SAN JUAN CAPISTRANO ) AND PUBLICATION MARY ANN HANOVER, being first duly sworn, deposes and says: That she is the duly appointed and qualified City Clerk of the City of San Juan Capistrano; that on September 28, 1989, she caused the above Notice to be posted in three (3) public places in the City of San Juan Capistrano, to wit: City Hall; Old Fire Station Recreation Complex; Orange County Public Library AND, that on October 3, 1989, the above Notice was published in the Capistrano Valley News newspaper. M Y ANN HANOVER, CITY CLERK City of San Juan Capistrano, California f AFFIDAVIT OFPUBLICATION - - Space below for Fling Stamp Only. STATE OF CALIFORNIA COUNTY OF ORANGE I am a citizen of the United S=--s and a resident of the County aforesaid. I am over the age of ei=teen years,and not a party to or interested in the above entitled ma-er. I am the principal clerk of the Proof of Publication of Capistrano Valley News, a news aper that has been adjudged to be a newspaper of general circue--on by the Superior Court of the NOTICE OF PUBLIC HEARING County of Orange, State of Cahto-va. on June 7. 1984, Case No. A-122949 in and for the City of San Juan Capistrano, County of C•I•TY•••OF...&Alar-•3UAN.....CAP•IST4-••••..................•--•.... Orange,State of California;that the notice,of which the annexed is - a trite printed copy, has been puo:sned in each regular and entire issue of said newspaper and not r any supplement thereof on the N077CEOFPUBLICHEARING following dates.to wit. CITY OF SAN JUAN CAPISTRANO NOTICE OFJOINTPUBLIC HEARING BY THE CM COUNCIL OFTHCCITY OFSANJUAN CAPISTRANO ANDTHESAN JUANCAPISTRANOCOMMUNrTY REDEVEWPMENT October 5,1989 PROPOSED AMENDMENT AGENCYOOWNERPARTICIPATION AGREEMENT (FRANCISAN PLAZA) i declare under penalty of pes}un that the foregoing is true and NOTICE t 7�P.M..In W�Council ChamMday of berrs,32 oo October. soo correct. AdelaMe.SanJuan Cepitarano.Celirornia.the City coupcit orthe CIUy of Saa Juan Capistrano(the 'City')and the Sen Juan Capistrano Community Redevelopment Agency(the`ASency i Will bold a joint public hearing pursuant to the Camorn. Community Redevelopment Lary(Health k Safkty Code Section I 'r n at seq.)for the purpose of considering the approval of an i Amendment to am existing Owner Participation Agreement(the E=xecuted at Mission Viejo,Orano::,ounty, California, on "Aaw-wat")with Franciscan plan Investahent Group oris. inally approved on Decaseber 15.IM.The Amendment provides for an increase of the reimbur+emant of funds expended for at, 1989 chaeolap cow ct associated with the proje October 5 TLe proposed Amendment calls for on locresse in Agency .......................•........................................................................ financial participation to reimburse the costs associated with unaaticipalod and aacewacy archaeological investigations on the property.In return the Agency is receiving control ever the archaeological findings,es well as receiving other consideratioa from the particilliant.The property is located at 31R3i Camino Y....:..:..:.:.. '...../.;.4.,•---'..................._.,....-,.•.....-_......_..... The purpose of the public hearing is to consider: (Signi=re) The proposed Amendment to the Owner Participation Agree- most between the San Juan Capistrano Community Redvnl- opment Atmm and the developer.and, AU evidence and testimony,for and against the approval of the Amendment At aq time not later than the hour aforesaid set ror the bearing. any parson objecting to the proposed Amendment or to the Capistrano Valley News regularity ofanyortheprior proceedings may futInwriting with the City Clerk a statement of his or her objections thereto.Any (A Publication of South Jrange County News) persons ororganisationsdesiring tobeheard Lusty appear before 23811 Via -abricante the Agency and the CIW Council and show cause why the Amend- ment should not be approved. At the aforesaid hour the City P. O. Box 3629 Eounell and the Agency she)]proceed to hear and pass upon all written and ora]obiectiona. Mission Viejo, California 92690 The following documents are available for public inspection and (714) 765-3631 copying during regular*Mee hours W90 A-M. to&W P.Y.. Monday through Fridayl at the office of the City Cterk and See- retery of the Agency,City Hall.32400 Pasco Adelanto,San Justn Capistrano.California,90g . A copy of the proposed Amendment,and. A copy or the proposed Owner Participation Agreement be- tween the San Juan Capistrano Community Redevelopment Agency.City of San Juan Capistrano and the Developer. - Those desirong to be heard in favor of or in opposition to,this item will be given an opportunity to do to during such hearing or by writing to the City Council at 92400 Paseo Adelante.San Juan [ Capittraao,California.90515,Attention:City Clerk/Agency See- rotary. eo-rotary.For further information,you may contact the City Clerk's Department at 493iI71. MARY ANN 13ANOV m CITY CLERK Publi:bed.'Cspiwtrarw Val Ise%News September 29,October 5,190 03.1117 ti NOTICE OF TRANSMITTAL - LEGAL PUBLICATIONS TO: CAPISTRANO VALLEY NEWS Jody Kolar, Legal FOR PUBLICATION ON: THURSDAY, SEPTEMBER 28, 1989 THURSDAY, OCTOBER 5, 1989 DOCUMENT TO BE PUBLISHED: NOTICE OF JOINT PUBLIC HEARING - PROPOSED AMENDMENT TO OWNER PARTICIPATION AGREEMENT (FRANCISCAN PLAZA) PROOF OF PUBLICATION: Please send to: City Clerk's Department City Hall 32400 Paseo Adelanto San Juan Capistrano, CA 92575 (714) 493-1171 AUTHORIZED BY: DATE: September 21, 1989 Date of Public Hearing - 10/17/89 OV1 v nVer fit(0I 1w, Date noticeublished - 09/28/89 C,r I( 4Jz� d� p - 10/05/89 JODt �74(4� +1x(q (r Date affidavit received - I�� (10 0 Date notice posted in c� t o� P I' t t $fid Id I �. ,,. designated posting places (3) - 09/28/89 Date notice posted on property - N/A Date of mailing notice to interested parties - 09/28/89 Date notice transmitted to City Manager's Office - 09/22199 R REUSE APPRAISAL FRANCISCAN PLAZA PARKING STRUCTURE CITY OF SAN JUAN CAPISTRANO COMMAUNITY REDEVELOPMENT AGENCY Prepared by: Natelson•Levander•Whitney, Inc. 10960 Wilshire Boulevard Suite 222 Los Angeles, California 90024 (213) 478-3016 NOTICE OF TRANSMITTAL - LEGAL PUBLICATIONS TO: CAP15TRANO VALLEY NEWS Jody Kolar, Legal FOR PUBLICATION ON: THURSDAY, SEPTEMBER 28, 1989 THURSDAY, OCTOBER 5, 1989 DOCUMENT TO BE PUBLISHED: NOTICE OF JOINT PUBLIC HEARING - PROPOSED AMENDMENT TO OWNER PARTICIPATION AGREEMENT (FRANCISCAN PLAZA) PROOF OF PUBLICATION: Please send to: City Clerk's Department City Hall 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (714) 493-1171 AUTHORIZED BY: - z2idZ=\ DATE: September 21, 1989 Date of Public Hearing - 10/17/89 v/V n� ()t( (-)jr1Y Date noticeublished - 09/28/89 11 -411( ql2� 61fdk p - 10/05/89 jort c4 rlr(4ffi, Date affidavit received - Date notice posTed in 14 designated posting places {3} - 09/28/89 44, �1I>Fc Date notice posted on property - N/A I Date of mailing notice to interested parties - 09129/99 Date notice transmitted to City Manager's Office - 09/22/89 i • TABLE OF CONTENTS Page Number 1. INTRODUCTION 1 Purpose of Appraisal I Statement of Contingent and Limiting Conditions 1 Regional Location Map 2 Subject Property Map 3 II. LOCATION AND DEVELOPMENT ANALYSIS 4 LOCATION AND SITE CHARACTERISTICS 4 Location 4 Methodology 4 Market Approach to Land Value 4 Cost and Income Approach to Land Value 4 Construction Costs 4 Development Plan 5 Development Model 5 Conclusion of Value 5 Comparable Sales Data 5 APPENDIX A L ISIRODUC?ION At the request of the City of San Juan Capistrano Community Redevelopment Agency, this appraisal was prepared to determine the fair market value of the Franciscan Plaza Redevelopment Project. The Franciscan Plaza Project is a redevelopment activity undertaken by the City of San Juan Capistrano. The objectives of the redevelopment program are to revitalize and enhance a deteriorated area of the City of San Juan Capistrano. PMrRose_of Appraisal The purpose of this rouse appraisal is to provide the fair market value of the Franciscan Plaza commercial redevelopment area delineated in Map 1. The Franciscan Plaza has been planned for development as a shopping center and movie theatre complex providing services to the residents of San Juan Capistrano and surrounding communities. Statemettt of Contingent and Limiting Conditigns The following factors are considered pertinent to this appraisal: 1. Land utilization objectives, site preparation, general street pattern, parcel configuration. Amended Redevelopment Plan stan- dards and controls and all other planning objectives will be in effect as indicated by the Agency. 2. The reuse appraisal value is presented in current dollar value as of the date of the appraisal. 3. Legal description, title and other legal information furnished by the Agency is assumed correct. 4. Disposition and redevelopment of project disposition parcels will take place within a logical market time period. 5. Minor changes in disposition parcel sizes will not necessitate a reappraisal. Application of ascribed unit reuse values may be made to reflect minor parcel changes. 6. Delayed disposition or major economic and/or planning changes will require a review of ascribed reuse values and appraisal recommendations. 1 '�-' ,. + fir• ~• 1p , j'•, ^ {• ]]] V Yr kz 'r 1. ✓' ,.rte, q ."r,�•'+,t I �' mar � J ''w'�+' ,�' ��,.� :"SSR d E °"'• �a 6t�' �� La of Op oil SeYI Af � �t �p. � �� M1wry ..+: T® a � I t �.,�.0 ����' •fir �� I 7 � �,;�, mss, +yr• • fir ' ` nl • ti I • , Off r �� �A � � © �" � ����_ �5=,fes s•"��.,,���f�"f� 44 '^•r k ~� F� � � � h. 1► �, A . M tr • � � w�l S.:'*�irw,.I,�.� +j1,. S��''lR��,.I,..«.�...��e ^.,��y.y�/�.ln••, ' ! • MAP I SUBJECT PROPER 124 - 16 0 0 L a CAbaNO CAPISTRANO tilt' �4i 93 s . G re. rR A wBio; A �. «ac Lor 39 t or 40 os! . 42 4 0,041. /3f f/ l R 5 SAN ,JUAN l60 SS o 21 0 22 � 24 ° GAPES T R AN 0 r i r0� s0. SAFE a"-,loo-w-row 7 Of sac ao.-so-�•r - ' r LOS RYOS 16 a MARCH 1951 R.S., SAN JUAN C AP/S rRANO 2 rR. NO. /03 N.M. IL LOCA'T'ION AND_QEY_ELOPMENT ANALYSIS LOCATTON AND SIT19 CHARACTERISTICS Location The Franciscan Plaza is located on the corners of Los Rios Street, Verdugo Street and Camino Capistrano. The subject property is approximately one- fourth of a mile west of Interstate Highway 5 which would provide good access to the Plaza for surrounding communities. The parking structure to be leased by the City of San Juan Capistrano will be located on the corner of Verdugo Street and Los Rios Street. Site Characteristics The subject property is a rectangularly shaped parcel with a smaller rec- tangular portion eliminated on Camino Capistrano (see Map 1). The site topography is level and at grade with the abutting roadways and considered amenable to the development proposed. Methodolo4v The cost and income approach to value was used to determine the fair market value of the property being appraised. The market comparable approach to value was used to determine the fair market value of property near and around the property being appraised. Although the market approach was used as the foundation for this appraisal, the ultimate value stated was derived from the cost and income approach. With acknowledgement that a retail commercial use is the highest and best use for this property, the cost and income approach will provide an accurate estimate of the value. Cost and Income Approach to Land Value In order to appraise the reuse value of the property herein described as Franciscan Plaza, the costs incurred by a developer in constructing such a development are examined. After depreciating the value of the buildings over time, a reasonable return on developers investment is calculated using a reasonable rate of capitalization. Market Aporg,a!;h to Land value In order to appraise the reuse value of the property herein described as the Franciscan Plaza, recent sales of similarly zoned properties in the area were examined. This approach shows what a well-informed and willing buyer would pay, and a well-informed and willing seller would accept, for the use and enjoyment of the property. Construction Cost Construction types and costs are developed from analysis of construction cost data prepared by Marshall Valuation Service, and our related project experience. 4 Dev loament Plan The proposed development plan for the Franciscan Plaza includes an 18,500 square foot five-plea movie theatre, approximately 16,000 square feet of retail space and a 410 space parking structure and associated landscaping, all to be constructed by the Franciscan Plaza Investment Group. Devclonment Model This model assumes that the developer will provide all necessary support services. Specific criteria established as assumptions and constraints for the model are: 0 148,000 square foot on-site parking structure providing 410 parking spaces; 0 18,500 square foot five-plex movie theatre; 0 16,000 square feet of retail space; and o a well detailed landscaped mall area for aesthetic and theme aspects of the shopping center site. Conclusion of Value Our Conclusion of Value was arrived at through the Cost and Income Approach, Market Comparable Approach and discussions with brokers active in the area. On the basis of our evaluation, we conclude that the reuse value of the Franciscan Plaza Project is FOURTEEN MILLION NINE HUNDRED FOUR THOUSAND AND FORTY DOLLARS ($14,904,040), as of November 2, 1987. The supporting tabulation for the conclusion is presented in Appendix A. Comparable Sales ata The following is a listing of those comparable land sales which were used to arrive at a value of similarly zoned land in the area of San Juan Capistrano: o Location: Camino De Los Mares, East of Calle Aqua, San Clemente, California Zoning: C-3 Site Size: 40,828 square feet Sales Price: $773,000 Price Per Square Foot: $18.93 o Location: Northeast corner of Golden Lantern and Acapulco Drive, Dana Point, California Zoning: SP Site Size: 67,070 square feet Sales Price: $1,216,000 Price Per Square Foot: $18.13 5 o Location: Camino Capistrano, West of Aeropuerto, San Juan Capistrano, California Zoning: CM, SJ Capistrano Site Size: 172,000 square feet Sales Price: $2,150,000 Price Per Square Foot: S12.50 o Location: Calle Arroyo, North of Rho Viejo, San Juan Capistrano, California Zoning: PUD Site Size: 52,730 square feet Sales Price: 5521,500 Price Per Square Foot: $9.89 o Location: Crown Valley Parkway, Laguna Hills, California Zoning: PC (Professional Commercial) Site Size: 30,490 square feet Sales Price: 5669,900 Price Per Square Foot: $21.97 o Location: Crown Valley Parking, Laguna Niquel, California Zoning: PC (Professional Commercial) Site Size: 43,560 square feet Sales Price: $900,000 Price Per Square Foot: $20.66 6 i FNICIOII PLM ow AM DfJIfE woo bw Alomi 1$-" M� N!lalaa:La+vw::�Mit:�p,1:� t t M. Ulm 46 to ffnwmm 0=1*W lAM`<T APIMOM s st. M:TAIL 90T>E / 16LS PO LF. I 161118 LF.+ : 11,1114IM :Z T}iEw m 6 !93.22 08 LF. I 18,90 LF.■ rl P1MIIIM 6 0.46 PE8 LF. I l%M0 LF.+ :4. ummum I U M Ip LF. I IS,• L F.= 15. 9I}lOTIL s 467,316,12# IL LU P3PApT M ISITE BMOIIM (TYPM)PE8 LF.I 1L3 : f31,y1 17. pp1ITEL'T 110 WINEO M FEES s l318,8M :L INMW 4AIN M M ICTII>N f1aI48w :9. NISCBA ® s s l,�,MM .16. Lm FIS+ IN38IIL1E 165,M r ill. FIMICIIM t2M,M : r l2. 90-mm 13. mm fai1N. UT s %W.9% s OL EBTIN TO A81IL 19M-IKX APpNjaM r :1. LA0 am IK SS LF. I! f1L33+ $1,906301 12%PFl1 No : fP31,166 . s .L A Izo 1m - 13 91N M UM , sl 9>1CUL P19PIIMs $1,273,91N! 15 00 I F46 18 1188.: FVU ■ 17.22 : 1N196375 (�is IF MIX amm mm s , : 3 90-TOIIL : 46!',33! :!. tE]1T APPU�F TO 91uMs :5. 17M t3IMIR !ate IL 08 - SPML PNt1tM lt,2Tl,91t : :7. IAE WINI mu m E mmeo 47,2114812 : :L AtMZXFIas 124 FIR 38 YNE Vt21918N 1 124 PFJ!YL An 38 VOLsF1C11>8= IL* ask= I F TU L CtIMTL mm :1. mm Alm mmic u m IUILDIms : a9I,e23 :1L mm A88IL IBM SIMS 446 r $1,341,3A :11. CAPITtUNTIM 199 114,94,148 .. : So:sm: Parihall nd Srift Odlicatim Natalm Law::da:'Ihitmy, 1w- San Juan Capistrano Community Redevelopment ;agency March 23, 1988 Mr. Dennis DePree Farmers Insurance Group 105 Crescent Bay Drive, Suite D Laguna Beach, California 92651 Re: Certificates of Insurance (Franciscan Plaza Investment Group) Dear Mr. DePree: On December 15, 1987, an Owner Participation Agreement was entered into between the San Juan Capistrano Community Redevelopment Agency and Franciscan Plaza Investment Group. As outlined in the agreement the following insurance requirements are needed: (1) Page 14, Item G - a comprehensive liability policy in the amount of Two Million Dollars ($2,000,000) combined single limit policy, including contractural liability. (2) The City of San Juan Capistrano and the San Juan Capistrano Redevelopment Agency shall be named as Additional Insureds. (3) The certificate shall contain a statment of obligation on the part of the carrier to notify__ the City and the Agency of any material chane cancellation or termination of the coverage at least thirty _30 days in advance of the effective date of any such material change, cancellation or termination. (4) The participant shall also furnish or cause to be furnished to the Agency evidence satisfactory to the Agency that any contractor with whom it has contracted for the performance of work on the Site or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. As per the conversation with your office, please send a certificate to the City, attention City Clerk's Department, by March 29, 1988 or before the project begins. 32400 Paseo Adelanto San Juan Capistrano California 92675 714-493-1171 Mr. Dennis DePree -2- March 23, 1988 If you have any questions, please contact Dawn Schanderl, Records Coordinator, at (714) 493-1171 extension 244. Thank you for your cooperation. Very truly yours, Mary Ann anover, CMC Agency Secretary MAH/dms cc: Paul Farber, Franciscan Plaza Investment Group Thomas Merrell, Director Community Planning & Development ET-108 7TH EDITION ADDITIONAL INSURED ENDORSEMENT Reference is made to the attached Certificate as To Evidence of Insurance. Aoveragesicoted If is agreed that- 24 The person or organization to whom the attached Certificate is issued is an additional insuredPlenty with respect to liability arising out of the acts or omissions of the named insured. It applies only to th on the Certificate. it This extension of coverage does not apply.. 1. To liability arising out of the negligence of the additional insured, its agents or employees, unless the agent or employee is the named insured. 2. To any defect of material, design or workmansFlip in any equipment of which the additionsl insured is the owner, lessor, manufacturer, mortgagee, or beneficiary. 3. To any vehicle liability when the named insured is not the owner or does not have care, custody, or control of the vehicle. The intent of this endorsement is to provi'le the coverage as stated above and in the Certificate. If any court shall interpret this endorsement to provide coverage other than what is stated above then our limits of liability shall be the limits of bodily injury liability and property damage lioaility specified by any motor vehicle financial responsibility law of the state, province, or territory where the named insured resides. If there is no such law, our limit of liability shall be $5,000 on account of bodily injury sustained by one persort in any one occurrence and subject to this provision respecting each person, $10,000 on account of bodily injury sustained by two or more persons in any one occurrence. Our total liability for all damages be- cause of all property damage sustained by one or more persons or organizations as the result of any one occurrence shall not exceed $5,000. This endorsement does not increase the coverage limits. This endorsement becomes part of the policy to which it is attached and supersedes and controls anything in the policy contrary hereto but is otherwise subject to the Declarations, insuring }agreements, Exclusions and Conditions thereof. (ADDITIONAL INSURED 6ND.) 86-OTOE 7Tt-1 Eo1TJON t,-as D-89 1151 5H11000 1' FARMERS INSURANCE GROUP The following are inter-insurance exchanges sometimes referred to in the policy, when issued by either of them, cis the Cornpany: 1. Farmers Insurance Exchange 2. Truck Insurance Exchange Los Angeles, California Los Angeles, California The following is a stock company referred to in the policy, when issued by it, as the Company-. f 3. Mid-Century Insurance Company Los Angeles, California EXCESS INSURANCE A - Mid-Century Insurance Company Los Angeles, California 6 - Lloyds, London and/or Companies in England c/o Walker&Co. Los Angeles, California C - Lloyds, London and/or Companies in England c/o Excess Underwriters Chicago, Illinois D - Other CERTIFICATE AS TO EVIDENCE OF INSURANCE PRIMARY 2 INSURANCE} Ti, change or Company designated on the reverse side c. mber r excess 1 1 iNEXCESS e 1 Excess over Primary with Company designated on reverse side as letter CERTIFICATE AS TO EVIDENCE OF INSURANCE r ( PRIMARY +NSURANCE) T&hange or Company designated an the reverse side Wber 2 EXCESS ❑ INSURANCE Excess over Primary with Company designated on reverse side as letter AN INSURANCE POLICY. THIS IS ONLY A VFRIf KATION OF WSURANCF- 11 DOES NOT IN ANY WAY AMEND, EXTEND OR ALTER THE COVERAGE i F,-%!,D:i'. BY THE POLICIES LISTED BELOW Named Insured . FRANCISCAN PL INVESTMENT GROUP Address . 31831 CAMI NO CAPISTRANO Excex Polity a Celt 4 tate Number SAN JUAN CAPISTRANO CA 92675 97 20 337 1495 29 50 Agent Policy Number This is to certify that policies for the above Named Insured are in force as follows: Effective from: 0601/89 To: of which time this certificate becomes void ® or continuous until cancelled if box"X"d, COVERAGE COMBINED LIMITS OF LIABILITY COVERER NOT AUTO COVERED LIABILITY uMI,U0 H X Owned Bodily Injury $ 000 each person INCIUDE(5) BOTH PRIMARY X Hired $ 004 each occurrence Atvo EXCESS Non-Owned i+f excess X erty Damage $ ;000 each occurrence aPplicahlei ❑ Employer's Non-Ownershill Contingent Liability Single Limit Liability for Coverages checked ® above $ 500 ,000 each occurrence GENERAL LIABILITY M&C-OLT Bodily Injury $ 000 each person ** Owners & Contractors $ ,000 each occurrence ® ❑ Contractual * _ 000 annual aggregate products *** Elevators Property Damage $ ,000 each occurrence Products and/or $ 000 annual aggregpte Completed Operations products *** $ 500 000 each occurrence Single Limit Liability for Coverages checked Q above $ 1000 annual aggregate 1+k* ❑ Cargo $ ,000 each vehicle $ 000 each occurrence *Includes Goods or Products Warranty, Written Lease of Premises, Easement Agreement, Municipal Ordinance Agreement, Sidetrack Agreement,Elevator or Escalator Maintenance Agreement only, unless accompanied by specific endorsement providing additional Contractural Coverage. **Not Applicable in Texas ***In Texas the aggregate also applies to owners and contractors protective, contractual and/or completed operations. ❑beeserihed 13 �escnphon low waived OWNFD YEAR,MAKE,TYPE OF BODY,LOAD CAPACITY IDENTIFICATION NUMBER AUTO- MOBILES, LAST 3 IF DIGITS COVERED SHOWN Umbrella Liability $ 000 retained limit POLICY NUMBER $ each occurrence $ aggregate Upon cancellation or termination of this policy for any cause the Company will provide 10 days advance notice in writing to whom this Cerlificate is issued. Notice of cancellation of the primary coverage automatically terminates excess coverage. Certificate`Issued To, THE CITY OF SAN JUAN CAPISTRANO AND Name • THE SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY and . 32400 PASEO ADELANTO Address . SAN JUAN CAPISTRANO CA 92675 Countersigned P�TTN' CITY CLE5KS DEPT AUTI- i WEPRLSENTATWIF This Certificate superce es any previously issue Certificate. 660187 12-88 1601 W1200 C112A0 PwNTEO IN a S.A, 0 M FARMERS INSURANCE GROUP The following are inter-insurance exchanges sometimes'referred to in the policy, when issued by either of them, as the Company: 1. Farmers Insurance Exchange 2. Truck Insurance Exchange Los Angeles, California Los Angeles, California The following is a stock company referred to in the policy, when issued by it, as the Company: i 3. Mid-Century Insurance Company Los Angeles, California EXCESS INSURANCE A - Mid-Century Insurance Company Los Angeles, California B - Lloyds, London and/or Companies in England c/o Walker&Co. Los Angeles, California C - Lloyds, London and/or Companies in England c/o Excess Underwriters Chicago, Illinois D - Other TRUCK INSURANCE EXCHANGE INTW CERTIFICATE AS TO EVIDENCE OF URANCE THIS IS NOT AN INSURANCE POLICY,THIS V:,;-,N!Y A VER IF 7 E °Y:k Pf-W-f. IT 130Ct N(.T i I ELN a WAY AMEND,W( ALTER 1HE COVERAGE PROVIDED BY THE POLICIES LISTED '3F1,0W- HO"odFRANCISCAN PLAZA INVESTMENT GROUP ta.urea 1489 95 32 Address . A CALIFORNIA LIMITED PARTNERSHIP policy 0-Gen.Llsb. 26300 LA ALAMEDA SUITE 470 • 92 n7 I— MISSION V I E J O, CA 92691 Agent I Policy N-Auto Lisb. Policy N-CARGO This is to certify that policies for the above named insured are in force as follows: Policy N-Work Comp. This interim Certificate As To Evidence of Insurance shall expire sixty days from 12 : 01 A M., MARCH 24 , 19 88 unless cancelled prior to such date by written'notice to the named insured- COVERAGE COMBINED LIMITS OF LIABILITY AUTO COVED CONVitEo 11A*ILITY ❑ ® Owned Bodily injury $ ,000 each person ❑ ® Hired $ 000 each occurrence ❑ Non-Owned Property Damage $ 000 each occurrence ❑ Employer's Non-Ownership Contingent Liability Single Limit liability for Coverages checked ® above $ 000 each occurrence CENEM IIIAWITY MBC - OLT Bodily Injury $ ,000 each person Owners 8 Contractors $ D00 each occurrence E ❑ Contractual* $ ,000 onnuat owregate products•e• (levators Property Damage $ ,000 each occurrence ❑ 10 Products and/or $ r000 annual aggregate Completed Operations products••• Single Limit liability for Coverages checked ® above $ 500 000 each occurrence annual aggregote $__ - ,000 products s e• ❑ ® CARGO $ 000 each vehicle $ 000 each occurrence ❑ ® Statutory *int u es Goods or Products Warranty, written Lease of Premises, Easement Agreement, Municipal Ordi Agreement, Sidetrack Agreement, Elevator or Escalator Mainterionce Agreement only, unless accompanied by specific endorsement providing additional Contractual Covefage. Descnbed Descnphon -- ❑ below ❑ wn,red OWNEO YEAR,WAKE, TYPE OF BODY,LOAD CAPACITY IDENTIFICATION NUMKR AUTO- 3/l MOBILES, LAST i iF Ga errs' DIGITS COVEREDHOYMM 1489 95 43 Umbrella Liability $ 10 000 retained limit 'v POLICY NUMBER $ 5 ,000 ,000 each occurrertf e $ 5 ,000 ,000 aggregate ✓ If this Interim Certificate As To Evidence Of Insurance is to be cancelled prior to the expiration date, we shalt provide 30 days advance notice in writing to whom this certificate is issued. Certificale issued to: ADDITIONAL INSURED Nome THE CITY OF SAN JUAN CAPISTRANO AND Address , THE SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY • 32400 PASEO AL?ELANTO SAN JUAN CAPISTRANO, CA 92675 :�� I A.A-q ATTEN: CITY CLERKS DEPT Countersigned Is*Not Applicable in Texas, Authorized Represeniahve �** In Texas the aggregate also applies to owners and contractors protective, contractual acrd/or cornpleted operations. 56-0614 64M 11501 20p Y PRINTED IN U.S.A. PHOKmD—CRM for ' � � F /j M ------ El Te;ephoned 'OL"ned your call In Came ❑ Will call again V—Prease return the call see me Message� ..... ....... ........ ............4.......... /05- CrUce-.� D 1,.A - Orl ......... . ...... k �7 A...... ............... Phone Time By x l MEMBERS OF THE CITU COUNCIL II ANTHONY L. BLAND LAWRENCE F. SUCH HEIM KENNETH E. FRIESS f'i�' mllod RAEO • IRlliSxlX961 GARY L. MAUSDORF£R 1776 PHILLEP R. SCHWARTZE • CITY MANAGER STEPHEN IS JULIAN • December 21, 1987 Franciscan Plaza Investment Group c/o Paul A. Farber and Associates 26300 La Alameda 4470 Mission Viejo, California 92691 Re: Joint Public Hearing for Proposed Development of Movie Theatres Retail Space, and Parking Structure Paul L. Farber and Associates Gentlemen: The City Council of the City of San Juan Capistrano and the Board of Directors of the San Juan Capistrano Community Redevelopment Agency conducted a Joint Public Hearing on December 15, 1987, regarding the proposed development of movie theatres, retail space, and a parking structure in the Central Redevelopment Project Area. After the Public Hearing, the following actions were taken: 1. The San Juan Capistrano Community Redevelopment Agency adopted Resolution No. CRA 87-12-15-1 approving the lease of certain properties and facilities within the San Juan Capistrano Central Redevelopment Project Area from Franciscan Plaza Investment Group and approving the Owner Participation Agreement for that development. 2. The City Council of the City of San Juan Capistrano adopted Resolution No. 87-12-15-1 approving the lease of certain properties and facilities within the San Juan Capistrano Central Redevelopment Project Area from Franciscan Plaza Investment Group and approving the Owner Participation Agreement for that development. Enclosed is a fully executed copy of the Owner Participation Agreement for your records. Certified copies of Resolution No. CRA 87-12-15-1 and Resolution No. 87-12- 15-1 were picked up last week. 32.400 PASEO AOELANTO, SAN JUAN CAPISTRANO. CALIFORNIA 92675 0 (714) 493-1171 4 . 0 Franciscan Plaza Investment Group December 21, 1987 -2- Thank you for your cooperation. if we can be of further assistance, please call. Very truly yours, Mary Ann H over, Cti-C City Clerk MAH/mac Enclosures cc: Director of Community Planning and Development ` Mike Darnold Dave Swerdlin DECEMBER 15, 1987 REGULAR MEETING OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY BOARD OF DIRECTORS The Regular Meeting of the Board of Directors of the San Juan Capistrano Community Redevelopment Agency was called to order by Chairman Hausdorfer at 9:00 p.m., in the City Council Chamber. ROLL CALL PRESENT: Gary L. Hausdorfer, Chairman Kenneth E. Friess, Vice Chairman (arrived at 8:03 p.m.) Anthony L. Bland, Director Lawrence F. Buchheim, Director Phillip R. Schwartze, Director ABSENT: None STAFF PRESENT: Stephen B. Julian, Executive Director; Tom Tomlinson, City Planner; Mary Ann Hanover, Agency Secretary; Robert G. Boone, Finance Officer; Glenn Southard, Assistant City Manager; John R. Shaw, City Attorney; likilliam D. Murphy, Director of Public Works; Thomas L. Baker, Director of Community Services; Cheryl Johnson, Recording Secretary. PUBLIC HEARINGS The .Joint Public Hearing of the City Council and the Community Redevelopment Agency was conducted by Mr. Bland acting as Mayor of the City. 1. JOINT PUBLIC HEARING OF THE CITY OF SAN JUAN CAPISTRANO AND THE COMMUNITY REDEVELOPMENT AGENCY ON THE PROPOSED DEVELOPMENT OF MOVIE THEATRES, RETAIL SPACE AND PARKING STRUCTURE IN THE REDEVELOPMENT PROJECT AREA PAUL L. FARBER AND ASSOCIATES/FRANCISCAN PLAZA ARCHITECTURAL CONTROL 86-3)(44-&r64) < ,1� This Hearing was continued from the meeting of December 1, 1987, and was taken out of order on the Agenda. Proposal: Consideration of an Owner Participation Agreement for Community Redevelopment Agency lease of a portion of the proposed parking structure at the Franciscan Plaza, 31781 Camino Capistrano. Upon expiration of the lease, a deed restriction will insure that the parking will remain public in perpetuity. The lease will not add any additional taxes or bonded indebtedness to residents or property owners of the City. The project, as approved by the City, includes 18,500 square feet of restaurant and specialty shops, a five-screen movie theatre complex, and a 410- 5pace parking structure. The proposed agreement will provide the City with an increase in available downtown parking, public improvements to Verdugo Street, and a railroad platform in return for financial assistance to the project. -1- 12/15/87 r Applicant- This pplicant-This was a City-initiated public hearing. Written Communications: TIT Report dated December l5, 1987, from the Executive Director, recommending approval of the Agreement. (2) Notebook containing: (a) Council/Agency staff reports; (b) Executive Summary - Owner Participation Agreement, Franciscan Plaza Project; (c) Reuse Appraisal, Franciscan Plaza Parking Structure, prepared by Natelson, Levander, Whitney, Inc., stating the reuse value @ $14,904,040 as of November 2, 1987; (d) Owner Participation Agreement between the Agency and the Franciscan Plaza Investment Group; and, (e) Council/Agency Resolutions. Executive Summary: The Executive Director made an oral report, advising that the Agency will lease the structure for 55 years at a base rent of $1.00 for the first three rental periods of 6 months, 18 months, and 36 months after issuance of the Certificate of Occupancy, and $1.00 per year thereafter. He described the Agency's obligations to pay for the public-Is perpetual access to the facility in the form of supplemental rent payments. The minimum supplemental rent will be $675,000; the maximum is $1,500,000. The agreement also provides for maintenance of common areas at a maximum of $20,000 per year. There will be a charge for parking in the structure; the amount was undetermined at this time. The parking structure is to be opened for use within 18 months of approval of the Owner Participation Agreement. Public Hearing; Notice having been given as required by law, Mayor Bland opened the Public Hearing and the following person responded: (1) Paul Farber, 31885 Circle Drive, South Laguna, representing the Franciscan Plaza Investment Group, advised he was present to answer questions. There being no further response, Mayor Bland closed the Public Hearing with the right to re-open at any time. Approval of Lease/Owner Participation Agreement: It was moved by Director Schwartze, seconded by Director Hausdorfer that the following Resolution be adopted: RESOLUTION NO. CRA 87-12-15-1, APPROVING LEASE/OWNER PARTICIPATION AGREEMENT FRANCISCAN PLAZA - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING THE LEASE. OF CERTAIN PROPERTIES AND FACILITIES WITHIN THE SAN JUAN CAPISTRANO CENTRAL REDEVELOPMENT PROJECT AREA FROM FRANCISCAN PLAZA INVESTMENT GROUP; AND, APPROVING THE OWNER PARTICIPATION AGREEMENT PERTAINING THERETO -2- 12/15/87 The motion carried by the following vote: AYES: Directors Schwartze, Buchheim, Bland and Chairman Hausdorfer NOES: None ABSENT: Director Friess Councilman Friess arrived at 8:03 p.m. MINUTES _Regular Meeting of December 1, 1987: It was moved by Director Buchheim, seconded by Director Bland, that the Minutes of the Regular Meeting of December 1, 1987, be approved as submitted. The motion carried by the following vote: AYES: Directors Friess, Bland, Buchheim, and Chairman Hausdorfer NOES: None ABSTAIN: Director Schwartze ABSENT: None BOARD ACTIONS L. APPROVAL OF WARRANTS (300.30) It was moved by Director Schwartze, seconded by Director Buchheim, and unanimously carried to approve the List of Demands dated December 3, 1987, Warrant Nos. 748-769, in the total amount of $3,827,180.85. 2. REPORT OF CASH FUND BALANCES (330.50) It was moved by Director Schwartze, seconded by Director Bland, and unanimously carried to approve the Report of Cash Fund Balances as of August 31, 1987, in the amount of $40,717.73 CLOSED SESSION The Board recessed at 9:02 p.m., to reconvene the City Council meeting. The Board conversed in a Closed Session at 9:37 p.m., for discussion of acquisition of the Old High School Site and the Rosan Ranch property, the Agency Secretary being excused therefrom, and reconvened at 10:30 p.m. -3- 12/15/87 i AGENDA ITEM December 15, 1987 TO: Community Redevelopment Agency Board of Directors FROM: Stephen B. Julian, Executive Director Community Redevelopment Agency SUBJECT: Joint public Hearing of the City of San Juan Capistrano and the San Juan Capistrano Community Redevelopment Agency on the Proposed Owner Participation Agreement - Franciscan Plaza Investment Group SITUATION A. Summary and Recommendation - The Redevelopment Agency staff has been negotiating with Paul L. Farber, representing Franciscan Plaza Investment Group, regarding the expansion of Franciscan Plaza at 31781 Camino Capistrano. To this end, the terms and conditions of an Owner Participation Agreement have been negotiated which define the actions of both the Agency and the Developer to provide for the Agency's lease of a portion of the parking structure and assurance that the parking will remain public in perpetuity. It is recommended the Agency adopt the attached resolution which reflects the action to be considered by the Agency as it relates to the OPA. B. Background - Mr. Paul Farber, representing Franciscan Plaza Investment Group, and Agency staff have negotiated the proposed Agreement to provide the City with an increase in available parking downtown and public improvements to Verdugo Street and a railroad platform in return for financial assistance to the project. The development project as approved by the City includes approximately 18,500 square feet of restaurants and speciality shops, a five screen movie theater complex and a 410 space parking structure. The project will have excess parking during the daytime hours due to the theaters' need for parking in the evening. The attached Owner Participation Agreement provides for a long-term lease of the parking structure by the Agency and defines the responsibilities of both the Agency and owner/developer. Upon expiration of the lease, a deed restriction will insure that the parking will remain public in perpetuity. This provides the Owner with needed assistance and the downtown with substantial additional parking facilities. The financial obligation under this lease is the Agency's. This lease will add no additional taxes or bonded indebtedness to the residents and/or property owners of the City as payments will be made from tax increment generated by the project and a portion of the proceeds from the 1986 Tax Allocation Note. C. Scope of Development - Currently Franciscan Plaza houses both restaurant and retail space with parking located both under and behind the existing building. The Owner proposes to demolish most of the existing structure, leaving only the bakery building. The proposed three level specialty retail center will rise only two stories above Camino Capistrano. The third story is below the rear of the building, made possible by the slope of the property. The Owner has also purchased a parcel south of the existing plaza and ultimately will develop an extension of Franciscan Plaza on this property, creating a "U" effect facing on Camino Capistrano. fOR CITY COUNCIL AGENDA ��� Agenda Item -2- December 15, 1987 On the existing site, the Owner proposes restaurants and additional retail shops, a five screen theatre complex and the parking structure. The theatre complex and the parking structure are to the rear of the complex fronting on Verdugo Street. The proposed elevations maintain the existing architectural style of the downtown, blending well with the Mission and other Mission style buildings. It will also complement the anticipated architecture of the Historic Town Center. D. Lease Terms - Under the provisions of the lease, Franciscan Plaza Investment Group (the owners will construct and own the 410 space parking structure. The Agency will lease the structure for fifty-five (55) years at a base rent of $1.00 for the first three rental periods and $1.00 per year thereafter. The first three rental periods are six (6) months, eighteen (18) months and thirty-six (36) months after issuance of the certificate of occupancy. The agreement further provides that CRA financial assistance pays for the public's perpetual access to the facility and takes the form of "supplemental rent" payments. The Agency will pay supplemental rent of $675,000 for these initial three periods; the Agency may also pay up to $825,000 in additional supplemental rent after the fourth, fifth and sixth years, depending upon the financial success of the development. If the project is very successful, no supplemental rent will be paid for the final three years. Thus, the minimum supplemental rent is $675,000; the maximum is $1,500,000. The basis for deciding whether the supplemental rent will be paid is based on analysis of the project's proforma at the end of its third year of operation. This is further outlined in the Attachment 4 of the Agreement. In return, the Agency has the unrestricted right to use the parking structure for public use, to make alterations or improvements and to assign or sublease it to another public agency at its discretion. E. Public Improvements The OPA requires the specific public improvements needed for this development to be installed and/or constructed by the Owner. Among these are traffic signalization at Verdugo Street and Camino Capistrano, street improvements along Verdugo Street, improvements to the railroad platform and installation of a storm drain from the railroad tracks to the west and rerouting a sewer to accommodate the parking structure. ENVIRONMENTAL A Negative Declaration of Environmental Impact, including necessary mitigating measures, has been certified for this project. PUBLIC NOTIFICATION The required legal notice of public hearing was published on October 29, 1987, in the Capistrano Valley News. Additionally, the date of the public hearing and each continuance has been announced at the monthly meetings with the Downtown Merchants. Agenda Item -3- December 15, 1987 COMMISSION/BOARD REVIEW, RECOMMENDATION The rebuilding of the existing Franciscan Plaza, construction of the theatre and parking structure have been fully reviewed by the appropriate boards and commissions. The Planning Commission approved AC 86-3 on November 25, 1986. FINANCIAL CONSIDERATIONS Under the terms of this OPA, the Agency obligated to pay an annual rent of $1.00 per year for 55 years and supplemental rent of $675,000 over the initial three years. In the event the project does not experience adequate financial success, the Agency may also be obligated to pay an additional $825,000 over the next three years for a total supplemental rent payment of $1,500,000. The source of repayment will be the tax increment generated by the project and a portion of the tax allocation note proceeds. ALTERNATE ACTIONS 1. Adopt the attached resolution approving the Owner Participation Agreement. 2. Do not adopt the resolution. 3. Adopt a modified resolution. RECOMMENDATION By motion, adopt the resolution approving the Owner Participation Agreement defining the parameters of the Franciscan Plaza project, the lease of attendant parking structure, and defining the obligations of the Owner and the Agency. Respectfully submitted Stephen B. Julia , Executive Director Community Redevelopment Agency SBJ:RJZ:dh RJZA11215871 RESOLUTION NO. CRA 87-12-15-1 225 APPROVING LEASE/OWNER PARTICIPATION AGREEMENT (FRANCISCAN PLAZA} A RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, APPROVING THE LEASE OF CERTAIN PROPERTIES AND FACILITIES WITHIN THE SAN JUAN CAPISTRANO CENTRAL REDEVELOPMENT PROJECT AREA FROM FRANCISCAN PLAZA INVESTMENT GROUP; AND, APPROVING THE OWNER PARTICIPATION AGREEMENT PERTAINING THERETO 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 an Owner Participation Agreement, made a part hereof by reference, (the "Agreement") with Franciscan Plaza Investment Group, a California Limited Partnership, (the "Participant") for the lease by the Agency of the parking structure to be built on the site (the "Site") as described in the Agreement in the San Juan Capistrano Central Redevelopment Project Area; and, WHEREAS, pursuant to the California Community Redevelopment Law (California Health and Safety Code, Section 33000 et seq.) the Agency held a public hearing on the Agreement and the proposed lease of the Site, 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 the Site thereto is in the best interests 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, a Negative Declaration for the Site Development proposed in the Agreement has been approved by the City of San Juan Capistrano by Resolution No. 86-11-15-4 on November 23, 1986, and no modifications to the proposed Site Development have been made which would require additional environmental review. NOW, THEREFORE, BE IT RESOLVED, by the San Juan Capistrano Community Redevelopment Agency, City of San Juan Capistrano, California, as follows: I. The Agency has received and heard all oral and written objections to the proposed Agreement, and to the proposed lease of the Site and to other matters pertaining to this transaction, and that all such oral and written objections are hereby overruled. 2. The Agency hereby finds and determines that the consideration to be paid to the Participant for the lease of the Site is not more than fair market value as determined by Natelson, Levander, Whitney, Inc., in an appraisal dated November 2, 1987, and is in accordance with the covenants and conditions governing such sale. The Agency 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 -1- '.226 0 0 Redevelopment Plan for the San Juan Capistrano Central Redevelopment Project. 3. The Negative Declaration approved on November 25, 1986, adequately considered all environmental impacts potentially caused by the proposed Site Development as there are no substantial changes in the proposed development which would alter the potential environmental impact of the project. 4. The lease of the Site and the proposed Agreement, which establish the terms and conditions therefor, are hereby approved. 5. The Chairman of the Agency is hereby authorized to execute the Agreement on behalf of the Agency. A copy of the Agreement, when executed by the Agency, shall be placed on file in the office of the Secretary of the Agency. 6. The Executive Director of the Agency (or his designee) is hereby authorized, on behalf of the Agency, to sign all documents necessary and appropriate to carry out and implement the Agreement and to administer the Agency's obligations, responsibilities and duties to be performed under the Agreement, and related documents. PASSED, APPROVED, AND ADOPTED this I Srh day of December 1987. GAR L. HAUSDORFER, CH A MAN ATTEST: AGENCY SPORETARY I -2- 227 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO ) I, MARY ANN HANOVER, Secretary of the San Juan Capistrano Community Redevelopment Agency, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Resolution No. CRA 87-12-15-1 adopted by the Board of Directors of the San Juan Capistrano Community Redevelopment Agency, at a regular meeting thereof held on the 15th day of December 1987, by the following vote: AYES: Directors Schwartze, Bland, Buchheim, and Chairman Hausdorfer NOES: None ABSENT: Director Friess (SEAL) MARY ANOVE , AGENCY SECRETARY -3- EXECUTIVE SUMMARY OWNER PARTICIPATION AGREEMENT (OPA) FRANCISCAN PLAZA PROJECT PURPOSE OF THE AGREEMENT The purpose of the Agreement is to provide for the Agency's lease of a parking structure being constructed as a part of an overall development which includes a five screen theater, 410 space parking structure and 18,500 square feet of retail and restaurant space. The project is in accordance with the public purposes and provisions of applicable federal, state and local laws and requirements. PARTIES TO THE AGREEMENT The parties to the Agreement are the San Juan Capistrano Community Redevelopment Agency (Agency), and Franciscan Plaza Investment Group (Owner). SITE DESCRIPTION The Agreement covers a development site consisting of approximately 2.41 acres at the southwest corner of Camino Capistrano and Verdugo Street. The site is illustrated on the site map attached to the OPA as Exhibit A. SCOPE OF DEVELOPMENT/USES OF THE SITE Under the terms of the Agreement, the Owner must construct on the site 18,500 square feet of retail and restaurant space, a five screen movie theatre and a 410 space parking structure. The Agreement includes a comprehensive Scope of Development which describes specific design and construction requirements of the development. The Owner also must construct specific public improvements on and adjacent to the site. The site plan for the development has already been presented for commission and board reviews and final approval was given by the Planning Commission on November 25, 1987. The agreement ensures the development will comply with the approved site plan as well as all applicable City standards. LEASE OF PARKING FACILITY Under the terms of the OPA, the Agency shall lease the parking structure for use by the general public visiting the downtown as well as commuters. Such use is anticipated to be needed primarily in the daytime. In the evening, the structure is expected to be used by patrons of the surrounding restaurants and the theater complex and associated retail tenants. The Agency will lease the structure for fifty-five (55) years at a base rent of $1.00 for the first three rental periods and $1.00 per year thereafter. The first three rental periods are six (6) months, eighteen (18) months and thirty-six (36) months after issuance of the Certificate of Occupancy. The agreement further provides that CRA financial assistance pays for the public's perpetual access to the facility and takes the form of "supplemental rent" payments. The Agency will pay supplemental rent of $675,000 for these initial three periods; the Agency may also pay up to $825,000 in additional supplemental rent after the fourth, fifth and sixth years, depending upon the financial success of the development. If the project is very successful, no supplemental rent will be paid for the final three years. Thus, the minimum supplemental rent is $675,000; the maximum is $1,500,000. The basis for deciding whether the supplemental rent will be paid is based on analysis of the project's proforma at the end of its third year of operation. This is further outlined in the Attachment 4 of the Agreement. PUBLIC IMPROVEMENTS The Owner is also responsible for making and/or constructing various improvements to the pudic right-of-way. Among these are improvements to the curbs, gutters, sidewalks and public area landscaping adjoining the site, an upgraded traffic signal at Camino Capistrano and Verdugo Street, street lighting, undergrounding of utilities, improvements to the railroad platform as well as to the drainage and sewer system in the area. SCHEDULE OF PERFORMANCE The Schedule of Performance section of the OPA outlines the timing for the performance of Agency and Owner responsibilities. In summary, if the OPA is approved on December 15, 1987, the parking structure will be open for use within 18 months of this date. Construction of the total project must be completed no later than an additional 24 months. RJZ12871 -2- r MEMBERS OF THE CITY COUNCIL 4 � ANTHONY L. BLAND LAWRENCE F. BUCHHEIM fir_ Ofd& r q.l KENNETH E. FR ESS E'AI JSM rp 196i GARY L. HAUSDORfER 1776 PHILLIP R. SCHWARTZE • CITY MANAGER STEPHEN B JULIAN November 19, 1987 Paul L. Farber 26300 La Alameda, Suite 470 Mission Viejo, California 92691 Re: Joint Public Hearin - Proposed Development of Movie Theatres Retail Space, and Parkin Structure Paul L. Farber and Associates Dear Mr. Farber: The City Council of the City of San Juan Capistrano and the Board of Directors of the San Juan Community Redevelopment Agency at their regular meeting held November 17, 1987, complied with your request and continued the Joint Public Hearing for the proposed development of movie theatres, retail space, and a parking structure in the Redevelopment Project Area to their meeting of December 1, 1987. Copies of the agendas and staff reports for the City and the agency will be forwarded to you prior to the December 1, 1987, meeting. Thank you for your cooperation. If we can be of further assistance, please call. Very truly yours, Mary Ann H over, CtiiC` Mary City Clerk MAH/mac cc: Director of Community Planning and Development 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO. CALIFORNIA 92675 0 (714) 493-1171 notic0f continuation of • dim PUBLIC HEAR1,NG CI TY OF SAN JUAN CAPISTRANO SUBJECT: JOINT PUBLIC HEARING OF THE CITY OF SAN JUAN CAPISTRANO AND THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY ON THE PROPOSED DEVELOPMENT OF MOVIE THEATRES, RETAIL SPACE AND PARKING STRUCTURE IN THE REDEVELOPMENT PROJECT AREA (PAUL L. FARBER ASSOCIATES) NOTICE IS HEREBY GIVEN, that the Joint Public Hearing with respect to the the proposed development of Movie Theatres, Retail Space and Parking Structure in the Redevelopment Project Area held on December 1, 1987, at 7:00 P.M., in the City Council Chamber was continued by official action of the City Council and the San Juan Capistrano Redevelopment Agency Board of Directors to December 15, 1987, at 7:00 P.M., in the City Council Chamber, 32400 Paseo Adelanto, San Juan Capistrano, California. DATED: December 2, 1987 AL CITY CL FOR OFFICE USE ONLY: STATE OF CALIFORNIA ) COUNTY OF ORANGE 1 ss. AFFIDAVIT OF POSTING CITY OF SAN JUAN CAPISTRANO ) MARY ANN HANOVER, being first duly sworn, deposes and says: That she is the duly appointed and qualified City Clerk of the City of San Juan Capistrano; that on December 2, 1987, she caused the above Notice to be posted in three (3) public places in the City of San Juan Capistrano, to wit: City Nall; Old Fire Station Recreation Complex; Orange County Public Library MARY VqN,9ANOVER, City Clerk City of San Juan Capistrano, California Joan MEMBERS OF THE CI TV COUNCIL V/ ANTHONY L. BLAND LAWRENCE F. BUCHHEIM V,', �� 2;ga.pax..: KENNETH EUFR ESS GARY L. HAUSDORFER 177b PHILLIP R, 5CHWARTZE 0 \ 0 CITY MANAGER STEPHEN B JULIAN December 3, 1987 Paul L. Farber 26300 La Alameda, Suite 470 Mission Viejo, California 92691 Re: Joint Public Hearin - Proposed Development of Movie Theatres Retail Space, and Parking Structure Paul L. Farber and Associates Dear Mr. Farber: The City Council of the City of San Juan Capistrano and the Board of Directors of the San Juan Community Redevelopment Agency at their regular meeting held December 1, 1987, complied with your request and continued the Joint Public Hearing for the proposed development of movie theatres, retail space, and a parking structure in the Redevelopment Project Area to their meeting of December 15, 1987. Copies of the agendas and staff reports for the City and the ,Agency will be forwarded to you prior to the December 15, 1987, meeting. Thank you for your cooperation, if we can be of further assistance, please call. Very truly yours, cc- Mary Ann Hanover, CMC City Clerk MAH/mac cc: Director of Community Planning and Development 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493-4171 � s r Af DECEMBER 1, 1987 REGULAR MEETING OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY BOARD OF DIRECTORS The Regular Meeting of the Board of Directors of the San .Tuan Capistrano Community Redevelopment Agency was called to order by Chairman Hausdorfer at 7:23 p.m., in the City Council Chamber. ROLL CALL PRESENT: Gary L. Hausdorfer, Chairman Kenneth E. Friess, Vice Chairman Anthony L. Bland, Director Lawrence F. Buchheim, Director ABSENT: Phillip R. Schwartze, Director STAFF PRESENT: Stephen B. Julian, Executive Director; Thomas G. Merrell, Deputy Director; Glenn Southard, Assistant City Manager; John R. Shaw, City Attorney; William D. Murphy, Director of Public Works; Thomas L. Baker, Director of Community Services; Cheryl Johnson, Recording Secretary. PUBLIC HEARINGS The Joint Public Hearing of the City Council and the Community Redevelopment Agency was conducted by Mr. Bland acting as Mayor of the City. 1. JOINT PUBLIC HEARING OF THE CITY OF SAN JUAN CAPISTRANO AND THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY ON PROPOSED DEVELOPMENT OF MOVIE THEATRES, RETAIL SPACE AND PARKING STRUCTURE IN THE REDEVELOPMENT PROJECT AREA PAUL L. FARBER AND ASSOCIATES AC 86-3 600.40 This Hearing was continued from the meeting of November 17, 1987. Written Communications: Report dated December 1, 1987, from the Deputy Director, requesting that the Hearing be continued to the meeting of December 15, 1987. Public Hearing Continued: Notice having been given as required by law, Mayor Bland opened the Public Hearing and there being no response, the Hearing was continued to the meeting of December 15, 1987. MINUTES Regular Meeting of December 1, 19_87: It was moved by Director Buchheim, seconded by Director Bland, that the Minutes of the Regular Meeting of December 1, 1987, be approved as submitted. The motion carried by the following vote: 12/1/87 AGENDA ITEM December 1, 1987 TO: Stephen B. Julian, Executive Director FROM: Thomas G. Merrell, Deputy Director Community Redevelopment Agency SUBJECT: Owner Participation Agreement (Farber) The Community Redevelopment Agency's public hearing for the Owner Participation Agreement (Farber) was continued at Mr. Farber's request from November 17, 1987 to December 1, 1987, to allow staff to review some last minute changes to the agreement he proposed. Staff has prepared a response to his changes but Mr. Farber has been unable to fully review and agree to them. Therefore, we request that the public hearing be continued to December 15, 1987, at which time an agreement executed by Mr. Farber will be available for the Agency's consideration. L TGM:RJZ:dh RJZAI1117874 CR6 ' , � .f�Mlaq • � MEM$ERS OF THE CITY COIJNCYL ANTHONY L. E31—ANP LAWRENCE F. SUCH HEIM I ^- A KENNETH E. FRIESS • °'.Ip❑'�s MIG 1 761 GARY L. HAUS6ORFER 1776 PHILLIP R, SCNWARTZE I • CITY MANAGER f STEPHEN B JULIAN r • November 19, 1987 Paul L. Farber 26304 La Alameda, Suite 470 Mission Viejo, California 92691 Re: Joint Public Hearin - Proposed Development of Movie Theatres Retail Space, and Parking Structure Paul L. Farber and Associates Dear Mr. Farber: The City Council of the City of San Juan Capistrano and the Board of Directors of the San Juan Community Redevelopment Agency at their regular meeting held November 17, 1987, complied with your request and continued the Joint Public Hearing, for the proposed development of movie theatres, retail space, and a parking structure in the Redevelopment Project Area to their meeting of December 1, 1987. Copies of the agendas and staff reports for the City and the Agency will be forwarded to you prior to the December 1, 1987, meeting, Thank you for your cooperation. if we can be of further assistance, please call. Very truly yours, aAnnn H ov , Chi C` City Clerk MAH/mac cc: Director of Community Planning and Development 32.400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493.1171 ' 1 . F NOVEMBER 17, I987 E. REGULAR MEETING OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY BOARD OF DIRECTORS E The Regular Meeting of the Board of Directors of the San Juan Capistrano Community Redevelopment Agency was called to order by Chairman Hausdorfer at 7:17 p.m., in the City Council Chamber. ROLL CALL PRESENT: Gary L. Hausdorfer, Chairman Kenneth E. Friess, Vice Chairman Anthony L. Bland, Director Lawrence F. Buchheim, Director Phillip R. Schwartze, Director ABSENT: None STAFF PRESENT: Stephen B. Julian, Executive Director; Thomas G. Merrell, Deputy Director; Mary Ann Hanover, Agency Secretary; Robert G. Boone, Finance Officer; Glenn Southard, Assistant City Manager; John R. Shaw, City Attorney; William D. Murphy, Director of Public Works; Thomas L. Baker, Director of Community Services; Chery I Johnson, Recording Secretary. PUBLIC HEARINGS The Joint Public Hearings of the City Council and the Community Redevelopment Agency were conducted by Mr. Bland acting as Mayor of the City. The Hearings were taken out of order on the Agenda. 1. JOINT PUBLIC HEARING OF THE CITY OF SAN JUAN CAPISTRANO AND HE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY ON PROPOSED DEVELOPMENT OF MOVIE THEATRES, RETAIL SPACE AND PARKING STRUC'T'URE IN THE REDEVEL PMENT PROJECT AREA AUL L. FARBER AND ASSOCIATES AC 86-3 600.40 F--_ Written Communications: ! Report dated November 17, 1987, from the Deputy Director, recommending the Hearing be continued to the meeting of December 1, 1987. (2) Letter dated November 10, 1987, from Paul L. Farber, Franciscan Plaza, 26300 la Alameda, Suite 470, Mission Viejo, 92691, requesting a continuance to allow time for minor modifications to the proposed owner participation agreement. The Executive Director advised that the proposed agreement related to possible Agency financial participation in the project's parking structure. 11117187 Continuance of Public Hearing: Nonce hoving been given as required by law, Mayor Bland opened the Public Hearing and them being no response, directed that the Hearing be continued to the meeting of December 1, 1987. 2. JOINT PUBLIC HEARING OF THE CITY Of SAN JUAN CAPISTRANO AND THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGEN Y REGARDING THE DRAFT ENVIRONMENTAL 1—M PACT REPORT FOR THE D19POSITION AND DEVELOPMENT AGREEMENT RELATED TO THE HISTORIC TOWN CENTER PROJECT OLIVER McMILLAN CAPISTRANO I, LTD. 400.20 Pra oral: Hearing held to receive testimony on the adequacy of the draft Environmental Impact Report for the Historic Town Center Project Disposition and Development Agreement. Applicant: San Juan Capistrano Community Redevelopment Agency. Written Communications: Report dated November 17, 1987, from the Deputy Director, advising that the document had been reviewed by the State Office of Planning and Research and no comments had been received by either the State or the City. Public Hearing: Notice having been given as required by law, Mayor Bland opened the Public Hearing and, there being no response, closed the Hearing with the right to re-open at any time. Certification of Environmental Impact Report: It was moved by Director Schwartze, seconded by Director Hausdorfer that the following Resolution be adopted: RESOLUTION NO. CRA 87-11-17-1FINDINGS RE ENVIRONMENTAL IMPACTS AND CERTIFICATION OF DRAFT ENVIRONMENTAL IMPACT REPORT - HISTORIC TOWN CENTER DISPOSITION AND DEVELOPMENT AGREEMENT - A RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY, MAKING CERTAIN FINDINGS WITH RESPECT TO THE ENVIRONMENTAL IMPACTS OF THE HISTORIC TOWN CENTER DISPOSITION AND DEVELOPMENT AGREEMENT AND CERTIFYING THE DRAFT ENVIRONMENTAL IMPACT REPORT The motion carried by the following vote: AYES: Directors Schwartze, !'riess, Buchheim, Bland, and Chairman Hausdorfer NOES: None ABSENT: None -2- 11/17/87 ■ AGENDA ITEM November 17, 1987 TO: Stephen B. Julian, Executive Director FROM: Thomas G. Merrell, Deputy Director Community Redevelopment Agency SUBJECT: Owner Participation Agreement (Farber) The public hearing for the Owner Participation Agreement (Farber) had been scheduled for the CRA meeting of November 17, 1987. However, Mr. Farber, the owner/developer, has proposed some last minute changes to the Agreement and has requested a continuance to allow the Agency staff an opportunity to consider them. The staff believes the proposed changes can be dealt with during the next two weeks and, therefore, recommends the Agency grant Mr. Farber's request and continue the public hearing to its next regularly scheduled meeting of December 1, 1987. TGM:RJZ:dh RdZ11874 Iq i OR C. Ty COUNCIL AGENM M ys`v San y1W)t Ci3pi-sLmnO r CD 4 November 10 , 1987 Nancy Erickson Community Development Administrator City of San Juan Capistrano CRA Re: Continuance of Public Hearing For Consideration of Proposed Agreement on Long-Term Lease of Franciscan Plaza Parking Structure Dear Nancy: Due to minor modifications that need to be made to the proposed owner participation agreement between the San Juan Capistrano Community Redevelopment Agency and Franciscan Plaza Investment Group; we feel it is necessary to request a continuance of this matter from the November 17 , 1987 scheduled meeting to the subsequent meeting on December 1, 1987f Thank you for your assistance in this matter. 5iicetely _yours , Paul ' L. Farber General Farber PLF/dih x Pacj&l— /.3/,-7 '7K 26300 1a ,%1an U?Aa, Suite 470 Xission Viejo, California 92691 (714) 582-1311 notice9f continuation of • PUBLIC HEARI., G ,m CITY OF SAN JUAN CAPISTRANO SUBJECT: JOINT PUBLIC HEARING OF THE CITY OF SAN JUAN CAPISTRANO AND THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY REGARDING THE PROPOSED DEVELOPMENT OF MOVIE THEATRES AND RETAIL SPACE IN THE REDEVELOPMENT PROJECT AREA (PAUL L. FARBER AND ASSOCIATES) NOTICE IS HEREBY GIVEN, that the Joint Public Hearing with respect to the proposed development of the movie threatres, retail space and parking structure in the Redevelopment Project Area (Paul L. Farber and Associates) held on November 15, 1987, at 7:00 P.M., in the City Council Chamber was continued by official action of the City Council and the San Juan Community Redevelopment Board of Directors to December 1, 1987, at 7:00 P.M., in the City Council Chamber, 32400 Paseo Adelanto, San Juan Capistrano, California. DATED: November 18, 1987 CITY CLERVAGENCY SECRETARY FOR OFFICE USE ONLY: STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. AFFIDAVIT OF POSTING CITY OF SAN JUAN CAPISTRANO ) MARY ANN HANOVER, being first duly sworn, deposes and says: That she is the duly appointed and qualified City Clerk of the City of San Juan Capistrano; that on November 18, 1987, she caused the above Notice to bt, posted in three (3) public places in the City of San Juan Capistrano, to wit: City Hail; Old Fire Station Recreation Complex; Orange County Public Library &"41 Y ANN HR ER City Clerk/Agency Secretary City of San Juan Capistrano, California AFFIDAVIT OF PUBLICATION This space is for the County Clerk's Filing Stamp QCT 33 1 14 P4 T Noy 4 8 s8 &m 187 f STATE OF CALIFORNIA Proof of Publication of County of Orange I am a citizen of the United States and a resident of the County aforesaid:I am over the age of twenty one years, NOTICE OF PUB•LIC HEARING and not a party to or interested in the above-entitled matter. I am the principal clerk of the Capistrano Val- ley News,a newspaper of general circulation in the City of San Juan Capistrano, County of Orange, and which N=CK0FPUBLJCHZAXNG- newspaper has been adjudicated to be a newspaper of cr"Or"4JUANCAPIffrFANO 1NotwiviawrMSWR,X"MNYTmem000mmor"M general circulation by the Superior Court of the County Crrr Ot US JUAK CAMMA*0 AND TMIM JUA*CAMWM of Orange, State of California, June 5, 1984, Case No. A-122949 in and for the City of San Juan Capistrano, PXW0ft6PXVZLW%W10rJWVX ATRX& County of Orange and the South Orange CountyJudicial FAVAM AND AWKWLMM District;that the notice, of which the annexed is a true P.W.to:the atr Comiken Chamber, printed copy, has been published in each regular and CIPWWSNDI collftrwK*chy COUN11 or entire issue of said newspaper and not in any supple- 00'ASIONwh�W0 a "i Doak, ment thereof on the following dates, to wit: Low" of 000hrool— October 29, 1987 ro ommim two* Jim =Weds**MMOINAWnfoet 00ammodw tw,#*nWftkWW do so ah"W",me I a 180010 movot F2 Ann at the spAkwast caim of do.lrterraelira WiPookia I declare under penalty of perjury that the foregoing is L'T110 Airesibig 11 the am Jaa# QWWWAP* tore and correct. �AMEW md feta law orf]us At w w time the PromWdloio mor Me is m willitbeaboorto of =9=6,*W objee0soo tbere6L AW pnww or be low, - 0 Go=Cogar I appm bahw*the-A~MANI no CW C400"md VlW a* ='==As- sbW a I I&bw-ovA.Vapt um dt vdsAka Wd,ogg Executed at Mission Viejo, Orange County Vkdectiom .. MW ran"tAE 0"W"M are ovou"o for WSW 29 Oct 87 California,this ... .. .... day of 19 ... .. .. .. %dglooso,am b. Pbeawtfintad lbelk:l 0; Na, -4 .. ....... .. .. ..... .... .. . .... . . CON",91R;;M A I Signature Capistrano Valley News 23811 Via Fabricante P.O. Box 3629 Mission Viejo, Calif, 92690 NOTICE OF TRANSMITTAL - LEGAL PUBLICATIONS TO: CAPISTRANO VALLEY NEVUS Jody Kolar, Legal FOR PUBLICATION ON: THURSDAY, OCTOBER 29, 1987 DOCUMENT TO BE PUBLISHED: NOTICE OF PUBLIC HEARING - PROPOSED DEVEL0P:MENT OF MOVIE THEATRES AND RETAIL SPACE IN REDEVELOPMENT PROJECT AREA. (PAUL L. F?1RBER AND ASSOCIATES) PROOF OF PUBLICATION: Please send to: City Clerk's Department City Hall 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (714) 493-1171 AUTHORIZED BY: -) y � DATE: October 23, 1987 Date of Public Hearing - L1/17/87 Date notice published - LO/29/87 Date affidavit received Date notice posted in designated posting places (3) - LO/29/87 Date notice posted on property - N/A Date of mailing notice to interested parties - 10/29/87 Date notice transmitted to City Manager's Office - 10/23/87 noticed 1774 I PL BLIC HEARI .& G �JLlFthZ."��' CITY OF SAN JUAN CAPISTRANO NOTICE OF JOINT PUBLIC HEARING BY THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO AND THE SAN JUAN CAPISTRANO COMMUNITY REDEVELOPMENT AGENCY PROPOSED DEVELOPMENT OF MOVIE THEATRES, RETAIL SPACE AND PARKING STRUCTURE IN REDEVELOPMENT PROJECT AREA (PAUL L. FARBER AND ASSOCIATES) NOTICE IS HEREBY GIVEN, that on the 17th day of November, 1987, at 7:00 P.M., in the City Council Chamber, 32400 Paseo Adelanto, San Juan Capistrano, California, the City Council of the City of San Juan Capistrano (the "City") and the San Juan Capistrano Community Redevelopment Agency (the "Agency") will hold a joint public hearing pursuant to the California Community Redevelopment Law (Health & Safety Code Sections 33000 et seq) for the purpose of considering the approval of a proposed Owner Participation Agreement (the "Agreement") with Paul L. Farber and Associates (the "Developer") which provides for the long-term lease of a parking facility. The proposed plan provides for an 18,500 square foot five-plex movie theatre, approximately 16,000 square feet of retail and a 410 space parking structure to be constructed by the Developer on the Site along with the necessary landscaping. The location of the site is within the San Juan Capistrano Central Redevelopment Project Area at the southwest corner of the intersection of Camino Capistrano and Verdugo streets. The purpose of the public hearing is to consider: 1. The proposed Agreement between the San Juan Capistrano Community Redevelopment Agency and Paul L. Farber and Associates for the long-term lease of the parking facility. 2. All evidence and testimony for and against the approval of the Agreement. At any time not later than the hour aforesaid set for hearing, any person objecting to the proposed Agreement, or to the regularity of any of the prior proceedings may file in writing with the City Clerk a statement of his or her objections thereto. Any persons or organizations desiring to be heard may appear before the Agency and the City Council and show cause why the Agreement should not be approved. At the aforesaid hour the City Council and the Agency shall proceed to hear and pass upon all written and oral objections. The following documents are available for public inspection and copying during regular 'F,age 2 Proposed Development/Paul L. Farber and Associates office hours (8:00 a.m. to 5:00 p.m., Monday through Friday) at the office of the City Clerk and Secretary of the Agency, City Hall, 32400 Paseo Adelanto, San Juan Capistrano, California 92675: 1. A copy of the Agreement between the San Juan Capistrano Community Redevelopment Agency, City of San Juan Capistrano, California and Paul L. Farber and Associates. 2. A Summary Report which describes and specifies: a. The cost of the Agreement to the Agency; and, b. The estimated value of the interest to be conveyed, determined at the highest uses permitted under the redevelopment Plan for the Central Redevelopment Project Area. C. Negative Dectaration issued by the Environmental Review Board on October 7, 1986. Those desiring to be heard in favor of, or in opposition to, this item will be given an opportunity to do so during such hearing or by writing to the City Council at 32400 Paseo Adelanto, San Juan Capistrano, California 92675, Attention: City Clerk. For further information, you may contact the City Clerk's Department at 493-1171. 12:1�- MARY AN ANOE V CITY CLE /AGENCY SECRETARY FOR OFFICE USE ONLY: STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. AFFIDAVIT OF POSTING CITY OF SAN JUAN CAPISTRANO ) AND PUBLICATION MARY ANN HANOVER, being first duly sworn, deposes and says: That she is the duly appointed and qualified City Clerk of the City of San Juan Capistrano; that on li:d aq )�-Tl she caused the above Notice to be posted in three (3) public places in the City of San Juan Capistrano, to wit: City Hall; Old Fire Station Recreation Complex; Orange County Public Library AND, that on '] the above Notice was published in the Capistrano Valley News newspaper. ku MARY ANN HANOVER, CITY CLERK City of San Juan Capistrano, California F Date PUBLIC HEARING CHECK-OFF LIST NAME OF PUBLIC HEARING: DATE OF PUBLIC HEARING: �f Due Date Done By 3 �1 7 �L Notice to paper /Q Xl/ Notice transmitted to City Managers Office —LA Nonce to be posted on property (No. needed ) 7 �_ Notice to be posted in 3 posting places Notice mailed to interested parties Return to Dawn when completed. Thank you.