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18-1010_26874 ORTEGA HIGHWAY LLC_1st Amd to Exclusive Negotiation Agreement • • FIRST AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT • • (Downtown Properties) • • • THIS FIRST AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT ("First • • Amendment") is dated as of October 10, 2018, for reference purposes only, and it is entered into • by and between the City of San Juan Capistrano, a public body, corporate and politic ("City") and 26874 Ortega Highway, a California limited liability company ("Developer"). The City and the Developer are sometimes referred to in this Agreement individually, as a "Party" and, collectively as the "Parties". This Agreement is entered into by the Parties with reference to the following recited facts (each, a "Recital"). RECITALS A. The City and the Developer previously entered into that certain "Exclusive Negotiation Agreement (Downtown Properties)" ("Original Agreement") reference dated as of October 17, 2017. Initially capitalized terms used, but not otherwise defined, herein shall have the meaning ascribed to such terms in the Original Agreement. • B. The Parties have agreed that additional time is necessary to permit them to more fully study the feasibility of the proposed Project and to negotiate the Disposition and • Development Agreement ("DDA"). Accordingly, the Parties desire to enter into this First • Amendment to extend the term of the Agreement and to clarify the milestones necessary to bring •• • the Project forward for consideration by the City Council. NOW, THEREFORE, IN VIEW OF THE GOALS AND OBJECTIVES OF THE CITY AND THE PROMISES OF THE CITY AND THE DEVELOPER SET FORTH IN THIS AGREEMENT, THE CITY AND THE DEVELOPER AGREE AS FOLLOWS: 1. Incorporation of Recitals. The Recitals of fact set forth above are true and correct and are incorporated into this First Amendment, in their entirety, by this reference. 2. Affirmation Regarding Absence of Defaults. Each Party hereby represents and warrants to the other Party that, as of the Effective Date of this First Amendment, the non • - • representing Party is not in material uncured default of the Original Agreement or the First • Amendment and that there have been no events that, with the passage of time, the giving of notice, or both, would constitute an event of default under the Original Agreement or the First Amendment. Each Party understands that the foregoing representation and warranty constitutes material consideration to the other Party for the other Party's entry into this First Amendment. • • 1 61147.8000613 1 5 1 9677.1 3. Section 5 of the Original Agreement, Developer's Submission of Documents for City Review and Comment. The Parties hereby agree to amend Section.5 of the Agreement,Developer's Submission of Documents for City Review and Comment, to extend the time for submittal for an additional 365 days, with the submittal time period expiring on October 2, 2019. 4. City Manager Approval. Pursuant to Section 16, Implementation of Agreement, the City Manager of the City (the "City Manager"), may enter into certain amendments, including extending the time for performance, administratively. 5. Effectiveness of First Amendment. The rights and duties of the City and the Developer established by this First Amendment shall commence on the first date on which all of the following have occurred: (1) execution of this First Amendment by the authorized representative(s) of the Developer and delivery of such executed First Amendment to the City, and (2) execution of this First Amendment by the City Manager pursuant to Section 16 of the Original Agreement. 6. Effect Upon Agreement. Except as expressly amended by this First Amendment, the Agreement remains in full force and effect, unmodified except as otherwise expressly herein provided. Wherever the term "Agreement" appears in the Original Agreement, it shall be read and understood to mean the Original Agreement as amended by this First Amendment. In the event of any direct conflict or inconsistency between the terms of the Original Agreement and the First Amendment, the terms of this First Amendment shall be controlling to the extent of such conflict or inconsistency. [Signatures on Following Page) 2 61147.80006\31519677.1 FIRST AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT (Downtown Properties) IN WITNESS WHEREOF, the City and the Developer have executed this First Amendment to Exclusive Negotiation Agreement on the dates indicated next to each of the signatures of their authorized representatives, as appear below. DEVELOPER: 26874 Ortega Highway,LLC Date: la,kVA" By: Name: Dan Almquist, Developer CITY: THE CITY OF SAN JUAN CAPISTRANO I Date: ph-V(3 By: Nam-: enj� n Sieh , City Manager ATTEST: - • • • / By: .I Ma 'x Morris, ity ilerk APPROVED AS TO FORM: BEST BEST&KRIEGER, LLP By: Jeffre allinger, City Atto n y 3 61147.80006\31519677.1