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19-1203_CITY OF SAN JUAN CAPISTRANO_Agenda Report_B5SACRA 121312A19 B5 Successor Agency to the San J uan Capistrano Community Redevelopment Agency Agenda Report TO Honorable Chair and Members of the Board fu"^¡FROM SUBMITTED BY DATE: amin Siegel, Executive Director Ken Al-lmam, Finance Officer rt& December 3,2019 SUBJECT:Assignment of Parking Structure Agreements to the City RECOMMENDATION: Approve an Assignment and Assumption Agreement (Attachment 1) to assign all rights and obligations associated with operation of the downtown parking structure from the Successor Agency to the City. EXECUTIVE SUMMARY ln 1989, the private owner of the downtown parking structure entered into a joint parking and maintenance agreement with the former Community Redevelopment Agency to provide public parking in the structure through 2045. Redevelopment law in effect at that time required that a city, not redevelopment agency, act as the participating public agency in agreements that govern ongoing facility operations. To remedy this administrative error, staff recommends that the various agreements associated with operations of the parking structure be transferred from the Successor Agency to the City. lt should be noted that although the agreements improperly identified the former Community Redevelopment Agency as manager of the parking structure, since inception the City, not the former Community Redevelopment Agency, has actually performed all operational functions of the facility, as provided by state law. DISCUSSION/ANALYSIS: ln 1989, the Franciscan Plaza Investment Group (Owner) entered into a joint parking and maintenance agreement with the former Community Redevelopment Agency (Agency) to operate a parking structure in downtown San Juan Capistrano that was constructed by the Owner. Rights and obligations associated with this agreement and related agreements included the following: Successor Agency Agenda Report December 3,2019 Page 2 of 3 1. Owner to set aside a portion of the parking structure for commuter parking; 2. Sharing of parking fees and operating expenses between the Agency and the Owner; and, 3. Agency lease payments to the Owner for commuter-designated parking. Since commencement of parking structure operations, the City, rather than the Agency, has exercised the rights and obligations of all agreements associated with parking structure operations, receiving all related revenues and paying all expenses associated with the Agency agreements. This was done in recognition that redevelopment law prohibited redevelopment agency involvement in the ongoing operations of public facilities. The City recently discovered that the original documents associated with the parking structure incorrectly referenced the Agency as the participating public agency, despite the City's lawful management of the public's interest in the operations of the parking structure since its opening in 1990. Staff recommends that the Successor Agency approve assignment of the Successor Agency's interests in these agreements to the City, consistent with the operation of redevelopment law that was in effect when the documents were first executed. This will allow the City, rather than the Successor Agency, to continue to pay the operating expenses of the parking structure, net of related operational revenue. The parking structure operates on essentially a break-even basis, with some years generating a small operating loss and some years a small operating gain (both gains and losses typically netting to less than $5,000 per year). lf the assignment is approved by all required parties, the Successor Agency will be dissolved in 2036, corresponding with the end date of the former Community Redevelopment Agency. At that time, all remaining obligations of the Successor Agency will have been paid off and tax increment can then be distributed to the taxing entities with no further deduction for Successor Agency operating costs. lf the parking structure agreements are not assigned to the City, the SuccessorAgency will be required to extend its life to the termination date of the parking structure agreements, which expire in 2045, resulting in additional expenditures of City and California Department of Finance (DOF) funds to deal with the reporting and administrative requirements of the Successor Agency over its extended life, as well as diminished residual distributions to the taxing entities. Should the City Council and Successor Agency approve the assignment, this matter will be presented to the Countywide Oversight Board and the California Department of Finance for consideration. FISCAL IMPACT: Approval of the recommended assignment will have minimal impact on the annual financial operations of the City and Successor Agency. ln future years, assignment will provide a significant financial benefit to all of the taxing entities by avoiding additional outlays of administrative expenditures to operate the Successor Agency for nine Successor Agency Agenda Report December 3,2019 Page 3 of 3 additional years (through 2045) beyond the scheduled Successor Agency end date of 2036. ENVIRONMENTAL IMPACT: Not applicable. PRIOR SUCCESSOR AGENCY REVIEW: Not applicable COMM ISSION/COMM ITTEE/BOARD REVIEW AND RECOMMENDATIONS: Not applicable. NOTIFICATION: Alberto Mobrici, Alfa Plaza LLC Raymond Dagher, Alfa Plaza LLC ATTACHMENTS: Attachment 1 - Assignment and Assumption Agreement ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement"), dated and effective as of , 2019, (the "Assignment Date"), is entered into by and among the Successor Agency of the City of San Juan Capistrano Community Redevelopment Agency, a public body, corporate, and politic ("Assignor"), ¿. successor-in-interest to the San Juan Capistrano Community Redevelopment Agency ("RDA"), and the City of San Juan Capistrano, a municipal corporation ("City" or "Assignee"). Assignor and Assignee may each individually be referred to as a "PaÍty," and collectively as the "Parties," to this Agreement. RECITALS 1. Assignor, as successor-in-interest to the RDA, and the Alfa Plaza LLC ("Owner"), as successor-in-interest to Franciscan Plaza Investment Group ("FPIG"), are each parties to the following agreements related to the parking structure at Verdugo Street/Alfa Plaza ("Structure"): (a) that certain Owner Participation Agreement by and among the RDA and FPIG, recorded in the official records of Orange County, California ("Official Records") on December 22, 1987, as Instrument No. 87-704662, a copy of which is attached hereto as Exhibit "4" ("Original OPA Agreement"), as subsequently amended by that certain First Amendment to the Original Agreement, dated October 17, 1989, a copy of which is attached hereto as Exhibit "8" ("First OPA Amendment"), and that certain Second Amendment to the Original Agreement, dated May 7,2002, a copy of which is attached hereto as Exhibit "C" ("Second OPA Amendment," and collectively with the Original OPA Agreement and the First OPA Amendment, ..OPA''); (b) that certain Joint Parking and Maintenance Agreement and Declaration of Covenants Running with the Land by and between the RDA and FPIG, recorded in the Official Records on December 15, 1989, as Instrument No. 89-681025, a copy of which is attached hereto as Exhibit "D" ("Original Maintenance Agreement"), as amended by that certain First Amendment to Joint Parking and Maintenance Agreement and Declaration of Covenants Running with the Land, dated }r4ay 7,2002, a copy of which is attached hereto as Exhibit "E" ("First Amendment to Maintenance Agreement," and collectively with the Original Maintenance A greement, "Maintenance Ag reement") ; and (c) that certain Lease Agreement by and among the RDA and FPIG, recorded in the official records of Orange County, California on August 14,1990, as Instrument No. 90-429893, a copy of which is attached hereto as Exhibit "F" ("Lease Agreementr" and collectively with the OPA and the Maintenance Agreement, the "Parking Structure Agreements"). 2. Assignor desires to assign to Assignee all of Assignor's rights and interests in and to the Parking Structure Agreements and to delegate to Assignee all of Assignor's duties and obligations under the Parking Structure Agreements. Assignee desires to accept the assignment of such rights and interests and assume such obligations thereunder. ATTACHMENTl-Page1of3 NOW, THEREFORE, in consideration of the mutual covenants, agreements and terms and conditions contained herein, the Parties hereto hereby agree as follows: l. Incorporation of Recitals and Exhibits. The "Exhibits" and "Recitals" of this Agreement constitute a material part of this Agreement and are incorporated by reference as though fully set forth herein 2. Assignment and Acceptance of Rights and Interests in the Parking Structure Agreements. Assignor hereby assigns and transfers to Assignee all of Assignor's rights and interests in and to the Parking Structure Agreements, and Assignee hereby accepts from Assignor the assignment of any and all rights and interests of Assignor under the Parking Structure Agreements. aJ Tlalaaofinn onrl  ion of fìkli-ofinno T Inrlar fha fr^-l-:^^ Q+*.,^+,,*o Agreements. Assignor hereby delegates to Assignee all Assignor's obligations, covenants, and promises under the Parking Structure Agreements, to the maximum extent permissible by law, and Assignee hereby accepts the foregoing delegation of such obligations, covenants, and promises, and agrees to fully perform such obligations and fulfill such covenants and promises, all to the extent accruing or arising on or after the date hereof. 4. General Provisions. (a) Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. (b) Entire Agreement: Conflict This Agreement, and the exhibits and documents reference herein, constitute the entire agreement between the Parties with respect to the assignment and assumption of the Parking Structure Agreements and supersedes all prior agreements and understandings between the Parties with respect thereto. In the event of a conflict between the terms of this Agreement and the terms of the Parking Structure Agreements, the terms of this Agreement shall control. (c) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original, and all of which together shall constitute one in the same agreement. (d) Status qf Parking Structure AgreemenÍs. All terms, conditions and covenants set forth in the Parking Structure Agreements shall remain in full force and effect, subject only to the terms and amendments set forth in this Agreement. (e) Indemnirtcafion and Hold Harmless. Assignee agrees to defend, indemnify, protect and hold Assignor harmless from any and all claims, actions, judgments, losses, liabilities, damages, and costs (including, without limitation, reasonable attorney's fees) arising out of or in any way related to Assignee's performance after assignment of the Parking Structure Agreements. ATTACHMENTl -Page2of3 IN WITNESS WHEREOF, the Parties have executed this Agreement on the day and year first above written. ..ASSIGNOR" ATTEST:SUCCESSOR AGENCY OF THE SAN JUAN CAPISTRANO REDEVELOPMENT AGENCY, a public body, corporate, and politic By:By: Maria Morris, Successor Agency Board Secretary APPROVED AS TO FORM: Jeff Ballinger, Successor Agency General Counsel ATTEST: By: Maria Monis, Cþ Clerk APPROVED AS TO FORM: Jeff Ballinger, City Attorney Brian L. Maryott Chairperson ..ASSIGNEE' CITY OF THE SAN JUAN CAPISTRANO, a municipal corporation By: Brian L. Maryott Mayor By: By: ATTACHMENTl -Page3of3 i j I É Reuirding requested bY City of'San Juan CaPistrano I l{hen recorded mail to: ../ Agency SecretarY San Juan Capistrano ConnunitY RedeveloP¡nent AgencY 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Recording f ' n pt due to Government Code 6t0 Documentar,f¡-. -:er Tax - No Considerarion tv City of Juan Capistrano BF-704662 -ztg Pft DEc 22,97 a {3'..^.L couilfY Reo080€n AGENCY PÀRTICIPAIi¡T, c8 OWNER PARTICIPATION AGREEMENT by and among the SÀI¡ JUÀN CAPISIrRÀNO COMMT'NITY REDEVELOPMENT AGENCY, and FRÀNCISCÀN PLÀZA IIWESTMEI\¡T GROTJP EXHIBITA-Pagel of 38 I gr-704662 TABLE OF CONlENTS [ 5100¡ slrBJECr oF AGREEMENI. IS1O1l Purpose of Agreement [51021 f¡e Redevelopmenr plan I g1O3l rtre sire I S1O4J fte p'roperty IS1O5f Parties to the Agreement 1. [ $1061 Ïhe Asency 2. [ 51071 I]re participanr 3. Ig1OBl Representations by participant 4. tSlOgl Prohibition Against Change inOwnership, Management and Control ofParticipant 5. [$110] Relationship of Agency and participanr I szoo] ASSEMBLY OF THE SITE [ $2Of ] Participant Assembly Obligarions I S2O2 I Indemnity I s3ool DISPOSTTION OF THE SrTE I S3O1 ] Lease I S3OZ J Conditions precedent [ $3O3 ] Escrow I S3O4J Conveyance of Leasehold Title I S3O5 I Eorm of Documents I 5306 ] Condition of teasehold Title t 53071 Recorciation of Documenrs A. B c, D. F II. A. B. III. A. B. c. D. E. tJ. (i.) EXHIBITA-Page2of38 Br-704662 H. I. J. I Ssos I t g3oe I t s31o I t $4oo I f s401 I [ $4o2 I t $4o3 I t 54o4 ¡ Title fnsurance Conditlon of, the Site Preliminary Work and Grading DEVELOPMEI.¡Î OF THE SITE Scope of Development Site PIan t Construction Dravings and Related Documents 9f!V Approval of PlanE, Drawings, andRelated Documents Cost of Construction Constructlon Schedule Bodily InJury and property Damage Insurance Cfty and Other Governmental Agency permits Rights of Access Local, State and Federal taws Àntldiscri¡nination During Construction Taxes, Assessments, Encumbrances and Liens Prohibition Against Transfer of the Site,the Buildings or Structures Thereon andAssignment of Agreement Mortgage, Deed of Trust, SaIe and Lease-BackFinancing; Rights of Holders f 54161 No Encumbrances Except Mortgages, Deedsof Trust, oF Sale and Lease_Bãck forDevelopment IV. A. B. D. E. F. tJ. H. I. J.. K. L. M. f 54os I I s406 ¡ t s4o7 I t s4o8 l t s4oe l f $41o ¡ t s411 I t 9413 I [ 5414 I N. f s41s I 1 (ii) EXHIBITA-Page3of38 .;/ 2. [ 94171 3 f s418 I 4. I s41e ] s. f s4201 o. t s421¡ ls422l I ssoo ] [ $so1l [ $so2 ¡ I sso3 ] [ $so4 I [ 5600 ] t s601 I Br-704662 Holder Not Obligated to Construct Improvements Notlce of Default to Mortgagee or Deedof Trust Holders; Right, to Cure Failure of Holder to Complete Improvements Right of the Agency to Cure Mortgage or Deed of Trust Default Right of the Agency to Satisfy Other Lienson the Site After Title passes Certificate of Completion USE OE THE SITE Uses Maintenance and operation of Facility Rights of Accèss Effect of Violation of the Terms andProvisions of this Àgreenent ÀfterCompletion of Construction GENERÀL PROVISIONS Notj.ces, Denands and Communications Betveenthe Parties Conflicts of Interest Enforced De1ay; Extension of Times ofPerformance v P À B c D VI A. B c D t s6o2 l [ 5603 I VII. I5604l Nonliabllity of Ojficials and, Emptoyees ofthe Àgency [ 57OO ] DEFAULTS A]¡D REMEDTES t 9701 I Defaults -- General t $702 J teqal Actions 1. f !7O3 I Insritut,ion cf Legal Actions A B ( iii ) EXHIBITA-Page4of38 B7-704662 2. [S7O4l Applicabte Law 3. [g7O5l Acceptance of Service of process I57061 Rights and Remedies Are Cr¡mulative [57O7J Inaction Not a Watver of Default [57OeJ Renedles and RX.ghts of Termination 1. [$709J Damages 2. I STro I Specifl.c Ferf,ormance 3. I57111 Termination by the participant 4. [57fe] Termination by the Agency I s80ol SPECIAL PROVTSIONS f!8011 ReaI Estare Commissions [58021 SUçcessors in Interest [ $8031 A¡nendments to this Agreement [ 59OO l ENTTRE AGREEMENT, WAMRS ISlOOOl TIME FoR ACCEPTAI\¡CE OF AGREEMENT By AcENcy c. D r VIII. A B c IX x (iv) EXHIBITA-Page5of38 ) Br-704662 ATTACHMENTS Site Map Legal Description Schedule of, perf,or¡nance Lease Deed of lrust Scope of DevelopmentCertificate of Completion Guaranty Non-listurbance and Attornment Agreement Attachment No. IAttachment No. 2Attachnent No. 3Attachment No. 4Attachment No. SÀttachment No. 6Attachment No. 7Attachment No. IAttachnent No. 9 (v) EXHIBITA-Page6of38 Br-704662 : OI{NER PARTICIPATION AGREEDlEI.¡T 1IIIS AGREEMENT is entered into by and among the SÀl,l JUAI.¡ CAPISTRANO COIIIMT,NITY REDEVELOPMENT AGENCY (the''Agency'' )and FRJ|NCrscAl,¡ Pr,AzÀ rNvEsrr,lENT cRouP, a california li.miteàpartnership (the rrParticipantrt). The Àgency and thePartÍcipant, hereby agree as follows: I I 51OOl SUBJECT OF AGREEMENT A. I S1o1l Punrose of Agreement B. I S1021 The Redeúelopment PIan c. t 5103 l Ttre Site lhe purpose of this Agreement is to effectuate theRedevelopment Pran (as hereinafter deflned) jor the centrarRedevelopment Project Area by providing for ttre disposltion and,deveropment, of certain property situated wj.tlrin tbe project Area (the "Project Arealr) of the project. . lhat, portion of the l"oject Àrea to be deveroped pursuant to this Agreement (theItsltert) ls depicted on the ttsfte Mapt,, which is attached heretoas Attach¡nent No. 1 and incorporated herein by reference. TÌ¡isAgreement is entered into for the purpoEe of ãeveloping thesite by the const¡:uction of a parking facÍrity l:he tFácirity") and not .for specuration in rand hording. comþleting thedeveropment on the Site pursuant to this Agreêment and theacquisition by the Agrency of that leasehold interest in certainrea| property !o bg conveyed by the partlcipant to the Àgencyis in the vitar and best fntsrest of the city of san Juancapistrano, california (the ttgityu) and the hearth, safety,morals and werf,are of its residents, and in accord with thepublic purposes and provisions of applicabre state and rocarraws and requirements under which the project has beenunciertaken. The Redeveropment Pran was approved and adopted by thecity councir of the city of san Juan capistrano by ordinanðeNo- 488 as amended by ordinance Nos. sog, s47 and 592; saidordinances and The Redevelopmdnt as so approved (thetrRedevelopment Plantf ) are incorporated hê-rein by reference. The Site is that portion of the project Areadesignated on tl¡e site.Map (Attachment No. 1) .and described inthe "Legal Descrlptionrr, which is attached hereto as At:achmentNo. 2 and is incorporated herein by reference. EXHIBITA-Page7of38 8glo8oôed-vltStHXfBr-704562D. [5104]The PropertyIhe Property is that portion of the project, Area sodesignated on the site Map (Attachment No. l). ihe property iscurrently owned by the Participant. T!¡e parking Facility andspeclfled improvements -to be constructed thereon in accoidancewith thls Agrreement, is sometimes hereinafter referred to asthe rrProj ect[ .E. [ $10s ¡Parties to the AgreementThe Agency is a public body, corporate andporltic, exercising governmental, functioãs and- powers andorganized and existing under chapter 2 of the communityRedeveropment.Law of the state of carifornia. The priñcipatoffice and ¡nailing address of the Agency (for purposes of thisAgreement) is located at 324oo paseo edelànto,- san JuanCaplstrano, Callfornía 02675.ttÀgencyil, as used in this Agrreement, includes thecity of san Juan capist,rano Redeveropment Agency, and anyassigmee of or successor to its rights, pohrers ãndresponsibilities1. I s1o6]2. [ $1o7 ]The Agencylhe ParticipantcRo'p, a cari'3li'l"ilåii:åi"ï":liliå:"i":'å:å.lffsr*E*partner(s) of .FRANCrscAt¡ PLAZA rtwEsrî'lENT GRottp is paul L.Farber and Associates, rnc., a california corporation. Theprincipal office and mailing address of the pärtfcipant for thepurposes of this Àgreement is c/o paul A. Farber & Àssociates,26,300 La Arameda, suite q7o, Mission viejo, california 9269r.The Participant has represented to the Agencythat the Participant has the experience and qualificationsnecessary to perform as Participant pursuant to this Agrreement.3. t s108 IRepresentations bvParticioantas follows: Participant represents and warrants to the AgencTA. The participant is duly established and :.ngood st,anding under the laws of the State of california and hasdury authorized, executed and derivered this Agreement and anyand all other agreements and documents requireã to be execuieiand derivered by the parcicipant in order to carry out, give12- 11-87724lJr'/22ee/39-2- B7-704662 effect to, Agreement. and consu¡mate the transactions contemplated by this contlnsent o¡rÎå,.r313 ::':i;tfiåi:,î:ï""H:"::ff .î"Ini:H:åålwhich could materialry adversery affect the a.bitlty of theParticipant to carry out its obligations hereunder. C. lhere are no material pending or, so far asis known to tJre ParÈici.pant, threatened, regar proceedings towhich tl¡e Participant is- or may be made a party or to which anyof lts property ls or may become subject, whfch has not beenfully discrosed fn the materiar submitted to the Agency whichcould materfally adversely affect the abltlty of theParticipant to carry out its obligations hereunder. D. There is no actLon or proceeding pendj.ng or,to the Participantr s best knowledge, threatened, looking tıwardthe dissolution or liquidation of the participant, and there isno action or proceeding pendlng or, to the partlcipantrs bestknowledge, tt¡reatened by or against the participant which courdaffect the varidity and enforceablllty of, tt¡e terms of thisAgreement, or materially and adversely affect the ability ofthe Participant to carry out it,s obligations hereunder. E. Ttre Participant tras perfo¡:¡red all of itsobligations to be performed at or prior to this date inaccordance with the Schedule of Performance and is not indefault hereunder. Each ofshall be deemed to be The Participant shall any change pertaining the foregoing items A t2-LL-87 724Lk/229913O the foregoing items À to E, inclusivean ongoing representation and warranty.advise the Agency in writing .if tt¡ere isto any matters set forth or referenced intó E, inclusive. 4. f 510s1 a].ns e]'n trol The quallflcatlons and identlty of theParticipant are of particular concern to the City and theAgency. rt is because of those quarificarions and identitythat the Àgency has entered into thls Agreèment with theParticipant. No voluntary or involuntary successor in interestof the Part,icipant sharr acquire any rights or polJers underthis Agrreement except as expressly set for:h herein. Prior to issuance of a Certijicate of Completionfor all of the Pubric Improvements, the participant shall notassign or transfer arr or any part of this Agreement or theSite or any rights hereunder witl¡out the prior written approvalof the Agency. the Àgency shalr noc unreasonabry withhorâ its -3-EXHIBITA-Page9of38 ) B7-704662 approval of an- assigrn¡nent or an expanded partnership or nel¡partnership which includes {i) paui L. ralber lr,Farteril o"(lrl an entlty in which Farber retains an Ínteiest of greaterthan 5a/" of proflts and losses or maintains compreteoperatlonal and managerial control as a general partner,provided that: (1) thê ass^ignge partnership shail expresslyassume the obllgations of the rarticipant, pürsuant to thisÀgreement 1n writing reasonabry satj.siacto-ry to the Agency;(?l ttre original Participant shall remain eüffy respoñsibte forÈhe performa¡¡ce and liabra for the obligations of tireParticlpant pursuant to this Àgreement; and (3) tl¡e assigmee(or expanded partnershrpl is financialry capabie, as reasonablydeternined by the Agency, of performing the duties anddlscþarging the obrigations it is assr¡Íring. The participantshall promptly notify the Agency Ín wrÍting og any and ailchanges whatsoever in the identity of the þersons-in control ofthe Participant and the degree théreof. rá tne event of deatho-r incap?city of one or more of the partners or principars ofthe Partlci.pant, the Agency shall not unreasonably witthold itsapproval of an assignment satisfylng criteria numbered (l) and(3), respectively, in the precedlng sentence. All of the terms, covenants and conditions of,tÌ¡is Agrreement shalr be binding upon and sharr inure to thebenefit of the Parties and the permitted successors and assignsof t!¡e Parties. whenever the term 'participantrr is usedherein, such term shall incrude any other permitted successorsand a'ssigms as herein provÍded. Section 109 shall be inapplicable following theissuance by the Agency of a certificate of compretlon for arlof the Public Improvements. s. t!110¡Relat'ion rr of Acrencv and P rticipant It is hereby acknowledged that the relationshipbetween the Agency and the Partlcipant j.s not that of apartnership nor joint venture and that the Agency and theDeveroper sharl not be deemed or construed for any purpose tobe the agent of the other. II.[ $2OO] ASSEMBLY OF THE SITE A. I 52011 Particip ant Assemblv Oblisat.ions The Participant has acquired fee titre to arr port,ionsof real property comprising the Site t2-tL-a7 724Lk/2299/_3O -4-EXHIBIT A - Page 10 of 38 Br-704662 B. tg292 | Indemnitv lhe Parti,cipant shall -defend, indennify, and holdharnless each _of, the Agency and the city f,rom aid againsr anyclai.¡ns, denrands, suits, judgrments or awãrde arising-iio, or T1l1tg9 Ín any manner Èo (i) the activities of the participanr, (il) the prior acquisition of the site by the parricipanr, (iiil tl¡e disposirion of r.he sire pursuañt to rhis Àgieemenr{including without }imitation the t,Leasett, which is ãttachedhereto as Attachment No. 4, and ls incorporated herein byreference, or {iv) relocation or removal of any occupants of!¡9 slte (whether effectéd by rhe Agency or thã participant). Ttri" indemnity shall not apply to the Agencyr s breach ordefault of any of the terms, conditions or covenants of theLease (Àttachment No. 41. rrr. I s3o0]DISPOSIT.ION OF TI¡E SITE LeaseA. t 53011 1. Th-e pa:ticipant shall rease the parking Facirityas dep5.cted on tt¡e s:ie Map (Attachment No. 1) to thè Àgencypursuant to the Lease (Attachment No. 4). The transfer ofleasehord estate pursuant tg the Lease (Attachment No. 4) shallconstitute the trLease Transferrt. the respective obligatlons ofthe parties, incruding without limitation the development ofthe P¿irking Facility and Pubrlc rmprovementb and the payment ofrent, are set, forth in the Lease (Attachment No. 4). - f¡eParticipant, and the Agency shall execute the Lease (Att,achrnentNo. 4, by the applicabre time establlshed therefor in theschedule of Performance (Attachment No. 3)¡ provided that theexecution Þy the A,gency of, said Lease sharr be subject to andconditioned upon the prior satisfaction by the rarlicipant oftÌ¡e.'rconditions Precedenttt, as set forth in section 30ä of thisÀgreement. 2. In addition to the consideration set forth Ínthis section 3o1, the Partici.pant sharr pay all of those costs,charges, fees and expenses as hereafter expressry provided tobe paid by Partici.pant pursuant to this Agreement ãnd sharl, ätits cost, provide arl of the improvements required by thisAgreement to-.be provided by the Participant (the ',publ!crmprovementsrr ) . The Public rmprovementê are describeci :n thettPublic Improvement Speci.ficationsrt which is attached herero asÀttachment No. I and is incorporated herein by reference.Participant shall pay IOO% of the cost of the public Improvements (Attachnent No. 8) with the except,ion thar :hereshall be a limit of Thirty-Five tl¡ousand DolLàrs (g3S,CCC.OO)to Participantrs expenditure for the rairroad plaÈfor::: improvement and tlre randscaping associat.ed with the :a:lroadplaiform improvement. t2-tt-87 724tk/22e9/?o -5-EXHIBIT A - Page 11 of 38 .) lhe Agreement and the Lease (Attachnent No. 4)provide substantiar economÍc incentivàs-to'tr¡e pãiiicip"nt,based upon cove-nants by the particitant to dedtcate ihê parkingstructure to publlc.purposes. pubri. L'"po""" sharl be definedas "open and ävairabie to tå-e gubriã-oã-å" equar basls.,, rhiscovenant of dedlcation to-public purposes isþÀ"rã"ã"ı, shatlrun with the tand and shal1 theretor'continue- bãtıã--irr" termof tÌ¡e Lease (Attachment No . 4,), eáaiiionar economicincentlves are provided in thal pariiné-ñ".r.r." grenerated fromco¡nmuter parking or other pald parking,- is to be dividedbetween the Agency and tlre participãnı'or " so/so basls. .. B. t s3o2l Conditions B7-704662 t As conditions precedent to the obllgations to theAgency to commence the term of the ¿eáse (Atfachrnent ño . ql,the Participant shall complete arr oi-t¡e folrowingr -' 1. -t_he particÍpant executes the Lease (AttachmentNo. 4) ¡ $',iåi¡:liTi,i ü:"ii':::irã1i;;çi'"i:rî,i!:that the zoning of tl¡e site is'suéh as to pãr*itdeveropment of, the pr¡bric rmprovements ánd theuse, operation, and maintenance of suchimprovements i 3- the participant- executes (and obtains executionof all parties. having any fee ownership interestin the site) the Deed of rrüst (Àttachirenr No. 5);4 ;i'"tË:!;l"iii! ii:"ii,: iï::;il"ïii:,î:ï:!î,".no such taxes are deLinguent; 5. the condition of the reasehord titre of theÀgency upon recordation of the Lease (AttachmentNo. 4) would conform to Section 306 oÈ tni.=Agreement. lhe foregoing conditions numbered 1.to s, inclusive,sharr corlectivery constitute the "conditions preceaentrt C. IS3O3J Escrow The Agency agrrees-to open an escrovr (the rrEscrowrr¡with First ÀmerÍcan Title rnsurance company 1òr witrr-Ánorhermutualry agreeabre escrow company) (rhe "g3crãv, Äı.üt;l by the 12 - 11-87't24tk/229e/3O -6- EXHIBIT A - Page 12 of 38 Br-704662 ti¡ne estabrished therefor in the schedule of performance(Attachment No. 3). lhe Escrow Agent shalr accomprish therecoi'datlon of the tease (Attachrnent No. 4) and tire-ıËe¿ ogtrust (Attachment No, s), all as more particurarry sei forthhergln. This Agreement constltutes thê joint basic escroÌ{instructlons of the Agency and the rartiéipant for creation ofa leasehold interest for the Agency pursuaát to the Lease(At'tachnent No . 41, and an lnterest, þursuant to tl¡e Deed ofTrust (Attachment No. 5) and a dupliäate original of thisAgreement shalr be deli.vered to the Escrow Àgent upon theopening of, the Escrow. gre Agency and the pãrtÍciþant sharrprovide such addltlonal éscrow inËtructi.ons as shair uenecessary for and consistent wlth this Agreenent. the EscrowAgent is hereby empowered to act under this Agreement, and theEscrou Agent, upon indÍcating wlthin flve (5) days afler theopening of the Escrow its acceptance of t¡è Ërovisions of thisSection 3o3, 1n writing, derlvered to the Agäncy and thePartlcipant, shall carry out its dutieE as Escrow Agenthereunder. _ _Upon delivery.of the Lease (Attachment No. 4r, and theDeed of rr:trst (Àttachment No. 5) Èo the Escrol, Agent Ëy theÀgency, the Escrorrr Agent sharl record such Lease and Dãed ofTrust, when leasehord title can be vested in the Agency and theinterest of the Agency pursuant to the Deed of Trust(Attachnent No. 5) sharr similarly be vested in t!¡e Àgency, arrin accordance with the terms and provisions of this Agreement.Any ihslrance poricies covering tire property or any pãrcel arenot to be transferred. T!¡e Participant shalL pay in escrow to the EscrowAgent the forlowlng fees, charges and costs promptly after theEscrow Agent l¡as notified the Partlcipant of the amount of suchfees, charges and costs, but not earller than ten (1O) dayspri.or to the scheduled date for closing the Escrow: 1. One-haLf (L/2) of tlre escror.r fee; 2. Any State, County or City Documentary Stamps; 3. Any transfer tax; 4. Costs necessary to place tltte to tl¡e property inthe condition required by this Agreement prior torecordation of the Lease (At-.achment No. 4) andthe Deed of Trust (Attachmenr No. 5); 5. Recording fees '6. Nota.'ir fees; and ]',2-lL-87 724tk/2299ßO EXHIBIT A - Page 13 of 38 \ öt -f u+00¿ 7. rhe premiu¡n for the tltle insurance poticy to be'p11d by the Participant as set forth in Section'308 of this Agreement. Itre Agengy gharr pay to the Escrow Agent prior toclosing one-half (l/Zl of tl¡e escrow fee. By t}te time established therefor in tÌ¡e schedure ofPerformance (Àttachrnent No. 3), the participant stratt executeand d-eposit witù¡ the Escrow Agent the Lease (Attachment No. 4)and the Deed of Tn¡st (Aftachment No. s). srilrject to section3o2 of thLs Àgreement, tlie Agency shall execute such Lease andsuch Deed of lnret prLor to the étose of egcrow. Il¡e Escrow Agent is authorlzed to: l.Pay,,and charge the participant and Agency forany fees, charges and costs- payable under-thisSectlon 3O3 of, this Agreement. Before suchpayments. or clrarges are made, the Escrow Agentsþafl, notify the Agency and the participani ofthe fees, charges and costs necessary tó cleartitle and close the Escrow. 2. Dlsburse funds and deriver the deed and otherdocuments to the parties entitled thereto whenthe conditlons of this Escrow have been fulfílted,by the Agency and the participant. 3- Record any instruments derlvered through thisEscrow, lf, necessary or proper, to vesi leaseholdtltre in tÌ¡e Agency in aêcotdance with the termsand provisions of, this Agreement. ' ' AIl funds received in this Escron shalì be ciepositedby the Escrow Agent, with other escrosr funds of rhe EsärowAgent in an interest earning general escrov, account or accountswith any state or national bank doing business in the state ofCaliforniê. Such funds may be transferred to any other generalescrow account or accounts. Art disbursements sharr be made bycheck of the Escrow Agent. Arl adjustments are to be made onthe basis of a thirty (30) day month. rf this Escrow is not in condition 'to cLose on orbefore tl.e time established therefor in section 304 of thisÀgreement, either party_who then sharl have furry performed theacts to be performed before the conveyance of teãsèfrotd tÍtlehêy, in writlng, demand from the Escrow Agent the rerurn of itsmoney, papers or documents deposited with -the Èscrow Àgent. Nodemand for return sharr be recognized until ten (ì.0) dåys after t2-Lt-87 724tk/2299/3O -8-EXHIBIT A - Page 14 of 38 ) Br-r04562 the Escrow Agent shall have mailed coples of such demand to theother party or parties at the address of its or their principarplace -or places of business. ObJect,ions, lf any, shali beraj.sed by wrltten notice to the Escrow Àgent aná to the ot!¡erparqy witl¡ln the ten (10) day period, in which event the EscrowAgent is authorlzed to hold all money, papers and documentswith respect to the Property untll instn¡êted by a mutualagreement of the parties or by a court of, competentjurisdfction. rf no such demands are made, the Escrow shall becloEed as soon as possible. Tt¡e Escrow Àgent sharl not be obligated to return anysuch money, pepers or documents except upon the wrlttenlnstructions of both the Agency and the participant or untirthe party entltled thereto has been determined by a finardecision of a court of competent jurisdiction. Any amendment, to these Escrow instructfons shalr be inwrÍting and sigrned by both the Agency and the Participant. Àtthe tj.me of any a¡¡rendment, tbe Escrow Agent sharr agrêe tocarry out its duties as Escrow Agent under such amendment. Arr com¡nunications from the Escrow Àgent to the Agencyor the Participant shall be dirested to the addresses specifieãin sections 1o5 and 106 of this Àgreement and in the mannerestabrished in Section 601 of tbis Agreenent f,or notices, demands and communications between the Agency and theParticipant. Íhe liabirity of the Escrow Agent under this Agreementis rimited to performance of the obrigatJ.ons imposed upon itunder sections 3o3 to 3o8, both inclusíve, of this Agràement. Neither the Agency nor the participant shalr be liablefgr- any relr estate comrnissions or brokerage fees which mayarise herefrom. lhe Agency and the partlcipant each representsthat 1t has not engraged any broker, agent or finder inconnection wittr this transaction. D. I S30+¡Conve e of Leaseho d Title Fubject to any extensions of time mutuarry agreed uponbetween the Àgency and the Participant, the conveyance ofleasehold title to the Agency pursuant to the Lease (AttachmentNo. 4) shall be compreted on or prior to the date specifiedtherefor in the schedule of Performance (Attachrnent No. 3).said Schedule of Performance (Attachment No. 3) is subjec! torevision froT time to time as- mutuarry agrreed upon in wrltingbetween the Participant and the Agency. The Agency anci :he 12- 11-87 7241r</22e9/1O -9-EXHIBIT A - Page 15 of 38 t Br-704662 Partlcipant agree to perform all acts necessary to conveyance of leaeehold title in sufficient time for leasehold title to be conveyed in accordance with the foregoing provisions. Possession shall be delivered to the Agency concurrentty with the conveyance of leasehold title. E. t $30s ¡Form of ts the Participant shall convey to the Àgency leasehold titte to the Property in lhe condition provided 1n Section 306 of this Agreement by the Lease (Attachrnent No. 4). The Partlcipant shal.I additionally cause the concurrent recordation of tlre Deed of Trust (Attash¡nent No. 5). E. [ 53061 Condition of Leasehold Title c. [9307 ¡Recordation of Documents The Escrow Agent shall f1le first the Lease (Attachment No. 4) and tt¡e Deed of Trust (Altaclunent.No. 5) for iecordation among the land records in the Office of the County Recorder for Orange County, after delivery to the Agency of :.';o tltle insurance policies, insuring leasehold title Pursuant --o the Lease (Attachment No. 4) and the interest of the Agency by vÍrtue of the Deed of Trust (Attachment No. 5) in conformity with Section 3OB of this Àgreement. T!¡e Escrow Agent shall also record any applicable subordination and non-disturbance and attornnent agreements. . T1he Partici.pant shall convey to the Agency leasehold title to the Parking Facility free and clear of all recorded or unrecorded Lj.ens, encunbrances, covenants, assessments, easements, IeaSes and taXeS, e¡cept for liens, enCumbrances, covenant5, 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 constr:t¡ction or take-out f,lnancing for the Public Improvements; the interest of the Agency to be created uPol¡ 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 lettacfrment No. 4). Tþe Àgency authorizes its Executive óirector to execUte such document5 as may be necessary to subordinate its total interest ln the Parking Facillty including the Lease (Attachment No. 4) to deeds of trust in favor of lenders providing construction or take-out financing 1rí'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 i; attached hereto and incorporated herein by this reference. t2-ll-87 72+rk/229e/3o -10-EXHIBIT A - Page 16 of 38 Br-704662 E. [S3O8J Title Insurance Concurrently with recordation of the Lease (ÀttachmentNo. 4, and tl¡e Deed of, Trust .(Attachment No. s), rirèt Àmericanlitle rnsurance cornpany (tl¡e ttTr.tre companyrr),'sharr provideand delLver to the Agency a tltle lnsurance ¡ioricy.isËued bythe Tltle Company insuring that leasehold titfe tı tfre parkingFacillty (pursuant to the Lease [Attachnent No. 4l ) is vestedin the Agency and that the interèst to be held by'åhe agencypursuant to the Deed cf Tnrst (Àttachrnent No. s)-arr is-repãsedin tl¡e Agency, in the co4ditlon required by section 306 of t¡isÀgreement. Íhe^Titre company shatt proviãe the Agency with acoPy of the title insurance pollcies- f,or lts leasef¡ofå interest, pursua¡rt to the Lease (Attacbnent No. 4) (based upon the a¡nountof, lwo Mlllion and Five Eundred Thousand Dollars l(SZ,SOO,OOO), and for lts interest pursuant to the Deed of Trust (AttachmentNo. 5), which sharr be an ALTÀ renderts policy for the amountof Two Mfllion and Flve Hundred Thousand-Dollãrs ($2,SOO,OOO).llre Partlcipant shall bear all costs for the foregroing tltre'insurance policies. In the event that the Tttle Company witt insure theinterest of the Agency as provided herej.n to the same extent asset fortj¡ in this section 3oB as an update to policy issued tothe Participant, such a policy may be utllized; provided,however, that the Agency sharl be a naned insured pursuant to such. insurance policy. In the event tÌ¡e Participant seeks any title insurancepolicy for its benefft, aII costs for such title insuranceshall be borne solely by the Partlcipant. I. [S3O9J Condition of the Site ' '. The ParticÍpant, at Participantts expense, shallperforrn any excavation, backfilling, demoli-.ion, removal ofstructures (including subsurf,ace structures), and gradingnecessary for the Public rmprovement,s. rf the soil condltionsof tbe sfte are not in arr respects entirely suitabre for theuse or uses to which the Site wlll be put,, then it is the soleresponsibility and obligations of Participant to take suchaction as may be necessary to prace the site in a conditionentirely suitable for the development of the site. After theciose of escrow, Participant agrees to indemn:.fy and defend theCity and/or Agency for any claims which may be asserted againstthe City andr/or the Agency under the ComprehensiveEnvironmentar Response and compensation anci Liabirity Àct, asamended, (42 U. s.c. 99601 et. secr. ) ( [cERcLå', ), and LheResource Conservation and Recovery Act, (42 U.S.C. 9690l et. sect. ) which claims are based at reast, in part on the factThatthe City and/or Àgency held a leasehold interest in the parking Faci I ity. t2-tr-87 724tk/229e/3O EXHIBIT A - Page 17 of 38 BI-704662 ) J. f $310l Pre minarv Wo rk and Gr adinq B. t $402 ¡Síte Plan Ihe Particlpant assu¡nea full responsibility to obtainany-necessary consents of, affected property owners änd tenantsat lts expense prior to undertaking any vork on tt¡e site. rhe Partlcipant agrees to undertake such demolition,soil excavatlo¡¡, impórtation and "orpiãiion work as isnecessary to prepare site f,or the pu¡tic rrnprovements. The Participant shall s3v9 and protect the Agency and3:,-"ill_againsr any- clailns_resurtrng--ãräm arr preliminaryldorß, access or use of the slte undertaken pursuant to thissection 31o. coples of data, suriveys and tests obtained orlade.by the Participant on the site'p.isn"rt to thissection 31o sharl be filed *iS tr¡e igàncy within fifteen (rs)days after receipt by the participani]--eiv prerirninÀry worr uythe Participant sharr be undertakèn only. after securing anynecessary permits from the appropriate lovernmental agencies. IV. f 54OOI DEVELOPMENT OF TIIE SITE A. [S4O1l Çcoqe of Development The. Part-igipant shall commence and completeconstruction of, the Public Improvements by the """p".iive timeseetablished therefor in the sêhedule of pãrfor.an"ä (AitachmentNo. 3). The Participant additlonalry "=".,*"" arrresponsibí11ty to cause the tl¡nely cırnrnence¡nent and completionof the ttslte Gradingtt, as hereinait"" sãt forth in section 31oof, this Agreement. .Îhe Parking Facility and public Improvementsshall be developed as provided in the rAttachmeni No. oii,-wrricr¡is attached l.ereto as the scope of Development anci isincorporated herein. the- development shall include any plans andspecifications submitted to clty and/or Agency rär approvar,and shall incorporate or show còmpriãnce ùitn'ar:.-apãiicabremitigation measures. Schedure """!l::ürï:?¡:ti$dåi"ñ":"5r 1"[il ¡::ï::;"il "n"shall prepare and submit to the-Àgengv roi'its .pprã"ål anymodifications ro rhe approve$ ptans får dever;p*ã;;-åi-tn" sirein sufficient, detair to enabre- the Agency to evaluate the 12-11-87 724tk/22ee/QO -L2-EXHIBIT A - Page 18 of 38 sï-r04662 proposal for conformity to the requirements of this Agreement.rt¡e site sharl be developed as established in this Agreementand such documents except as changes may be mutually agreed upon between the Participant and the Agency. Any such changesshall be within the lirnitations of the Scope of the Development(Attachment No. 6). c. f 5403 I Construction Drawinas and Related Docunents By Ëhe time set forth therefor in the Schedule ofPerf,ormance (Attachrnent No. 3), the Participant shall prepare and submlt to the City,'constructlon drawLngs, landscaþe þIan,and related docu¡nents for development of t!¡e Slte for writtenapproval. Approval of, tl¡e drawings and specifications, asprovided in the Schedule of Performance (Attachnent No. 3),will be granted by the Clty 1f they conform to Site Plantheretofore approved. Any ltems so submitted and approved inwriting by the City shall not be subject to subsequentdisapproval. During the preparation of all drawJ.ngs and plans,staff of the Agency, City, and the Participant shall hold regrular progress meetings to coordinate the preparation of, submission to, and review of, drawings, plans and related documents by the Agency. The staff of, Aglency, Cfty, and theParticipant shall communicate and consult lnt'ornally as f,requently as is necessary to insure that the formal sr¡bmittalof ariy documents to the Àgency or Clty can receive prompt and speedy consideration. T!¡e Participant shall be obligated toobtain all City approvals required for the construction of thePublic Improvements. D, t540+¡City Approval of Plans, Drawings, and Related Pocuments The City shall have the right of planning review of aII 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 ttre plans, drawings and related documents referredto in Sectlons 4O3 and 4O4 of tÌ¡is Àgreement within the times established in tl¡e Schedule of Performance (Attachnenr No. 3). Any disapproval shall state in wrlting the'reasons fordisapproval. The Participant, upon receipt of a disapprcval based upon powers reserved by the Clty hereunder, shall revise such portions and resubmit to the City as soon as possibleafter receipt of ttre notice of disapproval as provided 1: the Schedule of Performance (Attachment No. 3). 12- 11-87 724tk/229913O -13-EXHIBIT A - Page 19 of 38 )(ro) days or "I|""ffir::îtårTilål ll'olå;iil:rilt.within ren sr¡bnlttal is lot -comprete or nðt in accãidancà with clq/e,gencyprocedures. If the City determines t!¡ai such a subrnittal isn9t_.complete or not in accordance witl¡ proced,ures, suc¡ tendershall not be deemed to constÍtute a su¡ñittar for'p,ripos"s ofsatisfying the schedule of performance (Attachment-No. 3). sub sr anrr.' r "r,lf nl3" I "*: " ::i3:""o:;i ff 'n ï3"i" IË. ålt*. r,approval by the - city, the particÍpant sr¡ãrr sr¡bmit the proposedchange to the clty ior i€s approväl. Thà city shall approve orreject the propgged change anâ notify the rarËtcipant inwritfng within 30 days after submission to the city. Br-r04662 E. I g40s I Cost of Construction All the costs 9f site preparation and developingthe Public rmprovements and developiäg the site andconstructing arl improvements thereon sharl be borne solely bytlre Partfcipant. F. f $4061 Construction S chedule Tt¡e Participant shall promptly begin andthereaf,t'er diliqently prosecute to côurptätión. tf¡e constructionof the Pubric rmprovements, with all cônstruction commencingand being completed $rithin the tlmes specified therefor in ùheSchedule of Performance (Attachrnent No. 3). G. [ 5407 ¡BodiIv Ini urY and Propertv Darna Insurance Tlre Participant shall ciefend, assume allresponsibility for and hord the Agency, its officers andenployees, harmless from, alr claims or suits for, and damagesto, property and injuries t,o persons, incruding accidentaldeath (including attorney? fees and costs), which may be causedby any of the Participantrs astivities under this Agieement,whether such activi.ties or performance thereof be by theParticipant or anyone directry or in<iirectry emproyed orcontracted with by the Participant and whetñer such damagesharr accrue or be discovered before or after termination ofthis Agreement. the Participant shall take out and maintainthroughout the period set forth in this Section 4Og, acomprehensive riabirity policy in the amount of Two MillionDolrars (92,00o,o9o) combined,single iimÍt poricy, includingcontractual riability, as shall protect the participant, ciiyand Agency from claims for such damages. L2-LL-87 724tk/229e/?o -14-EXHIBIT A - Page 20 of 38 Br-704662 insuranc. .o.,ll:"Til:å";i":: :lÊi:"f:iltil.å.":l.if:"i::,::"".carrier on a fonh of the insurance carrier setting forth thegeneral provlsions of the insurance coverage. T}¡iscounterstgned certificate sl¡all na¡ne the city and the Agencyand tlrelr respective off,ices, agents, and .¡oåfòiã""--ã"additionar insureds under trre.pórrcy. rt¡e cärtigi".iã by theinsurance carier shall contaiä a såatement of, obrigation onthe part of the carrier ro norif,y clty aná t¡ã ú;#t of anymaterial change, cancellatlon or-ter¡nination of ıhe åoverage atleast thlrty (3-o) days in advance of, the effective date of anysuch material change, ca"ncerration or termination. coverageprovlded hereunder by the particlpant sharr ue prinarylnsurance and not contributlng- yittr -any- ineuranèe maiåtalned bythe Agency or city, and the poticy strait contain such anendorsement. The insurance þoficlr or the ce:tlflcate ofinsurance shall contai.n a waiver ıf subrogation for the benefitof t!e, clt,v and the Agency. TÌ¡e required certificate shall befurnishe9 Þv the participãnt at the time set forth therefor inthe Schedule of performañce (Attachme!¡t No. 3). The PartÍcipant sharl also furnish or cause to befurnished to the Agency evj,dence satj.sfactory to the Agencythat any contractor with whom it has contracied for theperformance of work on the site or othenrise pursuant--to thisAgrreement carries workersr compensation insuränce as reguiredby Iaw. The obligations set forth in this Section 407shalr remain in effect onry unt,ir tbe date of issuance of af,inal certificlle gf completion for the parking Faciitty anaall of the Public Improvements as hereafter próvided in Section422 of this Agreement- H. [ 84081 Citv Otlrer Gove tal Acrencv Permits Before co¡nmencement of constructÍon ordevelopment of any buitdings, structures or other works ofimprovement upon the site or within the project Area, theParticipant shalr, at its ovrn expense, secure or cause to besecured any and alr permits which T1y be required by the cttyor any other grovern¡nental agency affected by such cånstructiãn,deveropment or work. rt is understood that the participantts--'obrigation is to pay all necessary fees and to timery submit tothe clty final drawings with finar correcrlons to obtain abuilding pernit; the Agency will, wj.thout obrigation to incurliability or expense therefor, use its best efiorts to expediteissuance of buirding permÍ.ts and certificates of occupancy forconstructlon that meets ttre requirements of the clty ðode. L2-7t-87 724tk/2299/3O - 15-EXHIBIT A - Page 21 of 38 Asreemenr, ""p::;J*.li::':;. ;f" ï;H:.i"J:'*å "ä;r"lll, in' "have_tl¡e^right of, access to al1 por€iñË of, the stte in whichthe Participant shalr have an owäershit interest, withoutcharEes or fees, ât nornar const:l¡ctloi¡ hours during the periodof, construction for the purposes of thrs Àgreenent, incrudÍng,but not limited to, the insþection oc--the úork being ferformedin constnrcting the improvementsr so long as they .ı.þfy withr+l sa-fe!¡r orr::. su-cir representarives ıt t¡e eäenci'or of rhe9fty shall be those wt¡o àrä so identified in wriiing'by rheExecutive Director of, the Agency. The Agency sharr-inàe¡nnify,def,end and hord the parttcipant-t¡ar¡ntesj from and against anybodily lnjury or rerated damages arising out of the activities?f :\.Àgency and the city as referred ıo in this section 409irlclr¡,{rng but not rlmited to, craims, causes of action,liabillty, loss, cost or expense 1inåfuaing :easonablã'attorneysr f,ees) in connection thèrewlth. in praci,,s ","dr*:':i::iîiåt3: lil: ff"^3i3"Irå1"îioÏ3.iî;3'1f,:"respective parts of the partlcipant and the Aéency in theProject. rhe cost of the sigm èt¡atl be borne-sotêty by theParticipant. B7-r04662 I t s4oe I R1 tso f Àccess J.. [ 9410 ]te ederal L The PartÍcipant shalr carry out the constructiongf lhg.S.mprovements in confornity with air appticabiã-t."",including aII appli.cable federal immigration- iaws a¡rd federaland state lal¡or standards, provided, however, participant andits contractors, successors, assigns, transferees, "nä resseesare not waiving their rights to contest any such iaws, rules orstandards. K. I 5411¡Antidiscrimin atÍo n Durinq Constr¡ctÍon The Participant, for itself and its successorsand assigns, agrees that in the construction of t!:,eimprovemeqts provided for in this Agreement, the participantwirl not discriminate against any emproyee or apprlcant foremployment because of race, color, cieed, r.eligiän,. âgê, sex,maritar status, handicap, national origin or ances--:y. L. I s'4131 Taxes, Àssessmen ts, Encumb ranc es and Liens Tl¡e Part,icipant shalr pay when due arl real estatetaxes and assessments on the Site whether revièd before orafter the Lease Transfer. prior to issuance of a 3ertificate 12- r1-87 724Lk/2299/3O -16-EXHIBIT A - Page 22 of 38 Br-704662 of Conpletion pursuant to Section 422, the Participant shaltnot place on the Sfte or any part thereof any mortgâ9ê, trustdeed, enct¡¡nbrance or lien other tlran as expressly allowed bythis Agreenent, including, without ll.mitation, tl¡e Lease(Attachment, No. 4). Ihe Participant shaLl remove or have removed any levy or attachment made on any of the Site or anypart thereof, or assure the satisfaction thereof witl¡in a reasonable time but ln any event prior to a sale thereunder. Nothing herein contained shall be deemed to prohibit tlreParticipant from contesting the valtdity or ¿¡mounts of any tax assessment, encumbrance er lien, nor to llmit the renrediesavailable to the Participant in respect thereto. I't. [9414¡te t Prior to the issuance by the appropriate governmeirtal authorj.ty of a Certificate of, Completion (pursuant to Section 422 of this Agreement) as to any building or st::ucture.the Participant shall not, except as permitted by this Agreement, without prior approval of the Àgency, make any totalor partial sa1e, transfer, conveyance, assignment or lease of tlre whole or any part of the Slte or of the buildings orstructures on the Site. This prohibltion shall not be deemedto prevent construction loans allowable pursuant to Section 416, the granting of temporary or permanent easements or.permits to facilitate the developnent of, the Site or toprohibit or restrict the leasing of any part or parts of abuilding or structure for occupancy for a term commencing upon completion. f N. I S41s l Deed o Sale and Lease-Back Financi o Holders 1.t s416 I No rances Exc t Mort a s Deeds ase-or Mortgages, deeds of trust and sales and Ieases-back are to be permitted before completion of the construction of the improvements pursuant to this Sectlon 41'6,but only for tl¡e purpose of securing Ioans .of funds to be usedfor financing the construction of improvenents on the Site, permanent financing, and any other purposes necessary and appropriate in connection vtith development under this Agreement. Íhe Participant shall notify the Agency in advanceof any mortgag'e, deed of trust or sale and leaFe-backfinancing, if the Participant proposes to enter into the samebefore completion of the constructi.on of the improvemen--s on L2-]-L-e7 724Lk/2299/3O ctures - 17-EXHIBIT A - Page 23 of 38 the slte. lt¡e words rfmortgagett and rtrust deed, as usedhereinaf,ter shall incrude sare and, reasÀ-uact. rt¡e iirtlcipantshall not enrer lnto any ryc! "onv"y"trãã for finãnãinã-wrrÌ¡outthe prlor written approiar "i t¡ã-ÀÉ;;t, r+hlch approvar Àgencyagrees to give-if,-any such conveyanèe eıi f,inancinä-i= given tåa responsible lender. Br-r04662 2. t 5417 I ated o the holder, of any mortgage or deed of trustauthorized bT !lri" AgreeÍnent shatl not-ue obtigared by theprovisions of this Agreement to construct or cðmplete theimprovements or to gru¡arantee such construction oi, "o.pietion.Nothing in this Agreement shall be deemed to construe, pernritor authorize any such holder to devote the site to any uses orto construct any improvements thereon, other than thoSe uses orimprovements provided for or authorized by this Agreement. 3. I s418 1 ttoMo e or Deedt 12-11-87 724Lk/2299/SO of With respect to any nortgage or deed of trustø-ra1!e{ by Partlcipant, as proviaã¿ herãin, whenever the Agencyshall deliver any notice oL demand to pariicipant with respect,to any b;each or defaurt by the participant iä compret,ion ofconstruction of the improvements, the Agency shalt at the sametlne deriver to each hôlder of, recor¿ oi any mortgage or deedof trust authorized by this Agreement a copy of "u"ñ notice ordemand. Each such horder shalr (insofar aä-the rights of theAgency are concerned) have the right, at its optioñ, withinthirty (3o) days after t!¡e receipt of the notläe, tå cure orremedy or com¡nence to cure or remedy and pursue with duedirigence any such default and to ad¿ the cost thereof to themortgage debt and tÌ¡e lien of its mortgage. Nothingi containeciÍn thÍs Agreement sharr be deemed to permit or authórize suchholder to undertake or continue the cônstruction or completionof the improvements (beyond the extent necessary to conserve orprotect the improvements or construction already made) withoutf,irst having expressry assumed the particfpant'ê obrigations :c!þu _.gglcy by writren agreement satlsfactory to the eiency.The holder, ln that event, must agree to coñplete, in themanner provided in this Agreement, the improvements to whichthe rien or titre of such holder rerares,- and submit evidence !?tisfactory to the Agency that it has the qual.ificarions andfinancial responsibirity necessary to perfoirn suchobligations. Àny such horder proþerry compreting suchimprovement shalt be entitled, upon càmpliänc. wíth th"requirements of section 422 of this Agrèement, to a certificaceof Completion (as therein defined). -18-EXHIBIT A - Page 24 of 38 87-704662 4. IS4I9] Eailure of Holder to Complete I¡nprovements Asreemenr, in *ii:::.'inlfi,'IiÏHî'?ioî'oli:':;1":oå";:"ll';,the Participant in completion of coåsiruåt:.oå or ímfrãvementsunder this Àgrreement, the holder of any mortgage or deed oftrust creatlngr a rien or encumbrance uþon u¡è Site or any partthereof has not exercised tÌ¡e option tô construct, or if it hasexerci.sed the option and has not proceeded diligentry withconstructl.on, the Agency may purchase the mortgàge oi deed oftrust by pa¡ment to the lhordei of the amount oi Éhe unpaidmortgage or deed of trust debt, including principar anäinterest and alr other sums secured by the mortgàge or deed, oftn¡st. rf, the ownership of trre partiéj.pant parðeÍ or any partthereof has vested in the horder, the Agency, if it so däsires,shall be entitred to a conveyance from tr¡e Ëotaer to the Àgencyupon palzment to the holder of an amount equal to the sum oi ttrèfollowj.ng: Gl The unpaid mortgage or deed of trust debt atthe time tltle became vested in the holder(less aII appropriate credlt,s, includingthose resulting from collection andapplication of rentals and other incomereceived during foreclosure proceedings) ; AlI expenses with respect to foreclosure; The net expense, if any (exclusive ofgeneral overhead), lncurred by the holder asa direct result of the subsequent managementof the Site or part thereof; l!¡e costs of any improvement,s made by suchholder; Àn amount equivalent to :he interest thatwould lrave accrued on the aggregate of suchamounts had all such anounts become part ofthe mortgage or deed of *-rust debt and suchdebt had continued in existence to the dateof payment by the Agency; and Any customary prepa!¡men-, charges imposed bythe lender pursuant to i--s loan documentsand agreed, to by the par--icipant. b c d e f. t2-tt-a7 724rk/229e/3O -19-EXHIBIT A - Page 25 of 38 87-704662 \,-t, s. [ $420]tof to Cure au t o. f s4211 Ri o to Satisf Other ens T e Passes After tlre conveyance of Leasehold interest to Agencyand prior to the completion of construction, and after theParticipant has had written notice and has failed after areasonable time, but in any event not less than fifteen (lS)days, to challenge, cutre, adequately bond aqainst, or satisfyany liens or encumbrances on the Slte which are not otherwisepernitted, under this Agreement, the Agency shall have the right,but np obligation to satisfy any such liens or encumbrances. P. 154221 Certificate of Completion Promptly after completÍon of all construction anddevelopment required by this.Agreement to be completed by theParticipant upon the Site in conformity with this Agreement,the Agency shall fyrnish the Participant with a Certificate ofConpletion upon written request therefor by the Participant. Such Certificate shall be substantially in the form of Attachment No. 7 hereto. The Agency shall not unreasonablywlthlrold any such Certificate of Completion. Such Certlficateof Completion shall be a conclusive determj.nation ofsatisfactory completion of the construction requi.red by this Àgreement upon the Site and the Certificate of Completion shallso state. After recordation of such Certificate of Completion, any party thên owning or thereafter purchas.ing, Ieasing orotherwise acquirÍng any interest therein shalI not (because ofsuch ownership, purchase, lease or acquisition), incur anyobligation or liability under this Agreement except as providedin the Lease (Attachment No. 4) or other documents establishingcovenants on the Site in accordance with the provisicns ofSectj.on 4O1 of this Agreement, which shall be applicableaccording to its terms. t2-tL-87 724Lk/22se/30 o In the event of a mortgage or deed of trustdefaurt or breach by the particlpant-piior to the compretion ofthe constructlon- of-the improvements ôn the site or "äy partthereof and the holder of âny mortgage or deed of trusi has notexercised its option to construct, the Àgency may cure thedefault. In such event, the Agency shati be-entitled toreimbursement from the particlpant of all proper costs andexpenses lncurred by the.Agency fn curing èuch default. TheAgency sharr arso be entitled to a lien upon the Site and, theslte to the extent of such costs and disbursements. Any suchlien sharr be subject and subordinate to the constructionflnancing mortgages or deeds of trust. ton -20-EXHIBIT A - Page 26 of 38 / Br-704662 If the Agency refuses or fails to furnish acertifícate of, conpletion for the Publlc rmprovements afterwritten request from the Partlcipant, the Agency shall, withinthirty (30) days of written request thefefor, provide theParticipant with a wri.tten statement of the reasons the Àgencyrefused or failed to furnish a certificate of completion, Thestetement shall also contai.n Agencyr s opini-on of the actions oftÌ¡e Participant must take to obtain a Certificate ofcompretion. rf tÌ¡e reâson for such refusal is confined to theinmediate availability of specif,fc items of materials forlandscaping, the Agency VilI fssue its Certiflcate ofCompletion upon the postlng of a bond or an unconditionalletter of credit, (in form and suþstance reasonably acceptableto the Àgency and its legal counsel) by the Participant witl¡the Agency in an a¡oount representing a faj.r value of tÌ¡e r¡ork not, yet completed. If the AEency shall have falled to provide such written statement within said thirty (3O) day period, theParticipant shall be dêe¡ned entltled to the Certificate of Completion. Such Certj.ficate of Completion shall not constitute evidence of compliance with or satisfaction of any obligationof the Participant, to any holder of any mortgage, or anyinsurer of a mortgrage securing money loaned to finance the improvements, oE any part thereof. Such Certificate of Completion is not a notice of completion as referred to in theCalifçrnia Civil Code, Sectlon 3O93. v [ssoo] usE oF THE SITE A. I Ssol ]Uses The Particlpant covenants and agrees for itseif, its successors, its assigns, and every successor in interest -,o the Sl.te or any part thereof , that during construction andthereafter, the Participant, such successors and such assignees, sha1l devote the Site to the uses specified j.n the Redevelopment PIan, and this Agreement for the periods cf time specified tl¡erein. No use other than the operation of aparking facillty prj.ncipally devoted to a combination of commuter and commercial parking shall be allowed on the SÍtewithout the prior written aPProval of the Agency (which approval the Agency may grant, deny, withl¡old, or granr sr:bjectto conditions, ât its sole and absolute discret,ion). lhe number of com¡nuter and commercial parking spaces shall be based upon a determination of the parking spaces necessary 3cr --he commercial uses as determined by the Cfty of San Juan Capistrano Municipat Code (the ttCodet') with thp remai::.der ofthe spaces all-pcated to commuter use. This proportion shall be readjusted if a change in use of the com¡nercial space =equlres 12- 11-87 724tk/2299/-3O EXHIBIT A - Page 27 of 38 Br-r04562 a greater or lesser number of, parking spaces under the Code.Howevetr, in no event shall the number of commuter spaces beIesg than one hundred (1OO). Ihe parking must be used forpublic purposes and shall be considered to be used for publicpurposes as long as it is open and available to the public onan equal basis. The foregoing covenants shall run with the land. Ibe Participant covenants by and for ltself and any succese¡ors in interest that there shall be no discriminatíonagainst or segrregation of any person or group of persons onaccount of race, color, creed, religion, sex, marltal status,agb, handicap, national origin or ancestry in the sa1e, lease,sublease, transf,er, use, occupancy, tenure or enjo]¡ment of theSite, nor shall tlre Participant itself or any person clalmÍng under or through it establlsh or permit any such practice orpractices of discrimination or segrregation with reference tothe selectlon, Iocation, nunber, use or occupancy of tenants,Iessees, subtenants, sublessees or vendees of the Site. theforegoing covenants shall run with the land. Tl¡e Partlcipant shall refrain from restricting therental, sale or lease of the Site on the basis of race, color,creed, rellgion, sex, mari.tal status, handicap, national originor ancestry of any person. AII such deeds, leases or contractsshall contain. or be subject to substantially the following nondiscriminatlon or nonsegregation clauses: 1. In deeds: ItTtte grantee herein covenants by andfor hj.mself or herself, his or her heirs,executors, administ,rators and assigms, and aIIpèrsons claiming under or through them, thatthere shall be no discrimination against or segregratj.on of, any person or group of persons on account, of race, color, creed, religion, sex,marital status, âg9, handicap, national origin orancestry in the sale, Iease, sublease, transfer,use, occupancy, tenure or enjoyment of the landl¡erein conveyed, nor shall the grantee himself orherself or any person claiming under or through Ìrim or her, establish or permit any such practiceor practices of discrimination or segregationwÍth reference to the selection, Iocation, number, use or occupancy of tenants, Iessees,subtenants, subtessees or vendees in the landherein conveyed.run with the land. the foregoing ll covenants shall 12-11-87 724tk/229e/3O -22-EXHIBIT A - Page 28 of 38 87-704662 In leases: "Tl¡e lessee herein covenants by andf,or himself or trerself, his or her heirs,executors, ad.ministretors and assiçfns, and allpersons claiming under or through him or her, andthis lease is made and accepted upon and subjectto the following conditions: "There shall be no dlscrimination against orsegregation of any person or group of persons on account ..jf race, color, creed, religion, sex,marital status, handicap, âgê, ancestry ornatlonal obigin Ín the leasing, subleasing,transferringr, use, occupancy, tenure or enjoyment of, the premises hereln leased nor EhaII the lessee himself or herself,, or any person claiming under or through him or her, establish or pernit any such practice or practices of discriminationor segregatlon wlth reference to the selection,location, number, use or occupancy of tenants,lessees, sublessees, subtenants or vendees in thepremises herein leased. rl In contracts: ItThere shall be no discriminationagainst or segregation of, any person, or groupof persof¡s on account of race, color, creed,religion, Eex, marital status, êgê, handlcap, ancestry or national origin, fn the sale, lease, sublease, transfer, use, occupancy, tenure or enjolment of ttre premises, nor shall thetransferee himself or herself or any person clairning under or through hím or her, est,ablishor permit any such practice or practices ofdiscrimination or segregation with reference tothe selection, locatfon, number, use or occupancyof tenants, Iessees, subtenants, sublessees or vendees of the premises.rr Except for covenants agaínst dlscrimination or segregation, which shall continue in effect in perpetuíty, the covenants set forth in thls Sectlon 5O1 shall remain in effectuntil the termination date of the Redevelop¡nent Plan. Each ofthe Participant shall be jointly and severally liable in theevent of noncompliance with this Section 5O1. B. t sso2 I l'laintenançq end Operation of Facility Agency and Participant shall jointly select and enterinto a Maj,ntenance and Operation Agreement '*ith a qualified management company for maintenance and operatÍon of thestructure by the time desÍgnated Ín the Schedule of Performance 2 3 L2-tl-87 724Lk/22s9y'3o -23-EXHIBIT A - Page 29 of 38 i Br-r04662 (Àttachnent No. 3). The cost of the common area maintenance l ttg¡¡¡rt ) charges shall be allocated between the Agency and thePartlcipant ln proportion both to the ratio of commuter parking spaces and the commercial spaces and the comnuter parking days of,.Monday tÌ¡rough Friday and hours of 6:OO Al'l to 6:0O PM. Tl¡e f,ollowing equatlon exptesses this ratio: Agencyr s portion of, CAI'! charcres lotal CAIvt charges t2-tt-87 724Lk/229e'/3O (* of Commuter Soaces ) (* of working(12 hrs ì davs 1n mon rh lTotal # oft' spaces) ( lZ hrs) (* of days in month) lhe nr¡¡rber of commuter parking spaces and commercial parking spaces shatl be determined as specified in $5Ol of this Agreenent. rro rkí¡¡g @. Collection of fees shall be handled by operator of tÌ¡e structure or as otherwise agr:eed between theparties and dlstributed, based on a 5A/SO division, to the Participant and the Agency on a quarterly basis after the CAll charge Ìras been satisfied. Issuance of a Certificate of Completion by the Agency shall not affect Participantr s obligations under tl¡is section. c. t sso3 I Rlqbts of Access ' llt¡e Àgency, for itself and for the City and other public agrencies, ât their sole risk and expense, reserves the ttgt¡t to enter the Site or any part thereof which is owned or controlled by the Participant, at all reasonable times for the pgrpose of construction, feconstruction, maintenance, repair or serlice 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 shali indernnify and hold Participant harmless from any costs, claj,ms, damages or liabilities pertaining to any entry. ThÍs Section 5O3 shall not be deemed to di¡ninish any rights the Agency, the City, or any other public agencies may have without reference to this Section 5O3. D. I Sso4l ÎÌre Agency is deemed the beneficiary cÍ --he :erms and provisS.ons of this Agreement and of the covenan:s running with tt¡e land, for and in its own rights and for the purposes of protecting the interests of the co-mmunity and'c--her partÍes, þubtic or private, in whose favor -änd for rhose benefit this Effect of Vfolation of the Ter:ns and Provisions of thi.s Aare.ement .:.i'.er Completion of Construccion -24-EXHIBIT A - Page 30 of 38 ) Br-704562 Agreenent and, the covenants running with the land have beenprovided; The Agrreement and the covenants shall run in favorof the ÀEency, without regard to whether the Agency has been,remains or is an o¡rner of any land or lnterest theiein in thesite or in the ProJect Area. T!¡e Agency shall have the right,if the Agreement or covenants are breached, to exercíse arÍrights and remedies, and to mafntain any actions or suits atlaw or in equity or otl¡er proper proceedings to enforce thecurlng of such breaches to which it or any other beneficiariesof this Agreement and covenants may be entitled. Af,ter Íssuance öf a certlf,icate of completion for arlgrading and improvements to be completed by the partlcipant pursuant to tl¡1s Agrreement, all of tl¡e terms, covenants,agreements and condltlons set forth ln this Agreement relatingto the site sharl cease and te¡minate as to --hat portion of theSite for which the Certiflcate of Completion is íssued,excepting only the provislons listed below which shall surviveas follows¡ (a) Sections 409, 501, 5O2 and 5O3 relating to Uses,Maintenance and Access. (b) Section 407 (relating to indemnificat,ion andinsurance) shall remain in effect in accordance with theterms and conditions set, f,orth therein. ' (c) Sections 70O to 707 and 713 to 71''S (relating torights and remedies) shall remain in effect to the extentnecessary to enforce other provisions of this Àgreement. (d) ÎÌre Lease (Attachment No. 4) and Section 301 ofthis Agreement shall remain enforceable according to theirterms. vI.I s6001 GENERAL PROVTSIONS A.I S601 I Notices and Communications Ee enPartes Written notices, demands and communications betweenthe Agency, the Participant shall be suffi.cÍently given ifdelivered by hand (and a receipt therefor is obtained or isrefused t,o be gi.ven) or dispatched by registered or cer--ifiedmail, postage prepaid, return recelpt reguested, to theprincipar offices of the Agency, the Participant. such writtennotices, demands and communications may be sent in the same manner to such other addresses as ej.ther party may from :i¡ne totime designate by mail as provided in this Section 60l.Notwithstanding the foregoing, notlce by the Agency to e:therthe Partlcipant shall be deemeci to constitute notice tc boththe Participant. L2-ll-87 724tk/229e13O -25-EXHIBIT A - Page 31 of 38 ) Br-704662 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 tf delivered by registered or certified mail. B. t 5602 ¡ Conflicts of Interes! No member, official or employee of the Agency shall have any personal interest, direct or indirect, in thts Agreementr nor shall any member' official or employee participate in any decision ielating to the Agreement which affects his personal interesti or the interests of any corporationr Partnership or association in which he is directly or indirectly interested. No member, official or employee of the Agency shall be personally ttable to the Participant, or any successor in interestr in the event ol any default or breach of the Agency¡ or for any amount which may become due to the Paiticipant or successor or on any obligations ur¡der the terms of this Agreemenl. 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. I 5603 ¡Enforced Delav: Extension of Times Performance In addition to specÍfic provisions of this Agreement, performance by either party hereunder shall not-be deemed to be in defaultr and all performance and other ¿atei specified in this Agreement and the Attachments hereto shall be extendedr where delays 'or defaults are -due to: war¡ lnsurrection; strikes; lockouts; riots; floods; eartirquakes; firesi casualtiesi acts of God¡ acts of- the public enemyi epidemics; qu"rantine'restrictionsi freight embargoes; lack of transportation; governmental rLstrictions or priority¡ titigatlon; unusualiy sever€ w-eather; inability.to secure pe-rmits iU tfr" inability to séure iermits is not the tault of the particiP.ant), necessary labor, rnaterials or toblsi delays oi any contractor, subcontractor oI supplier; acts or omissions of the other partyi acts or failures to act of the city of san Juan caPistrano or any other oublic or soùern;'¡lental agency or entity (other than the acts or failures to act of the he"n.y wh-ich shall not eicusè performance by the Agency); or any other causes beyond thi control or without the fauli of the party claiming ari extension of time to perform.- Notwithstanding anything to the contrary in -this Agreement' an extension of time for anv such cause shali Ue-for t-he period of the enforced delay and shall commence to run from the time of the commencêment of the causer if notice by the Party claiming such extension is sent to the other party within thirty (30) days of Lz-LL-t7 724lklLr99lJ1 -26- EXHIBIT A - Page 32 of 38 Br-704662 the commencement of the cause. Times of performance under thisAgreement nsy also be extended in writing by the mutualagrreement of Agency and participant. Notwlthstanding the foregoing portion of thls section603, the Participant is not entitred puisuant to this Section603 to an extension of time to perform because of (i) past, Present, or future difficulty in obtaÍning suiÈable temporaryor permanent financing for the development of, the Site. D. I S604l NonI 11r 1o sof No member, official or employee of the Agency or theCity shall be personally liable to the Farticipant, oi anysuccessor in interest, itr the event of any default or breach bythe Agency (or the clty) or for any emount which may become duèto the Particlpant or íts successotrs, or on any obllgationsunder the terms of this Agreement. VII.t 5700 I À. [ 970r ¡ DEFAULTS AT.¡D REMEDIES Defaults -- Genera.I Subject to tt¡e extensions of tlne set forth inSectfon 603, failure or delay by eíther party to perform anyterm or provision of this Agreement constituÈes a- default uñderthis Agreement. The party who so fails or delays must i¡nmediately commence to cure, correct, or remedy such failureor delay, and shall compl.ete such Çure, correction or remedywith di.ligence. The injured party shall give written notice of defaultto.the party in default, as well as other persons or entities entitled to notice hereunder, specifying the <iefauLt complainedof 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) daysafter giving such notice or, provided that :he party isproceeding with diligence to cure, such greater t,ime as may be necessary to cure given the nature of the default. Failure or deJ.ay in giving such notice sha1l not constitute a waiver of any ãefault, nor shall it change the time òf d,efault. B. [ $702 ¡LesaI Àctions 1.I s7o3 I Instftution of Leoal Àctions In addition to any other rights or remedies andsubject to the restrictions in Section 7O1, ej.ther party mayinstitut,e legal action to cure, correct or renredy any default, 12- 11-87 724tk/2299730 -27 -EXHIBIT A - Page 33 of 38 ì\ ) Br-704662 to recover damagres for any def,ault, or to obtain any otherremedy consistent with the purpose of this Àgreement. suchlegal actLons must be instituted 1n the superior court of theCounty of Orange, State of California, in an appropriatemunicipal court in that county, or in the Federal DistrictCourt Ín the Central District, of California. 2. I s7041 Àpplic le Law lhe laws of tÌ¡e State of California shall governthe interpretation and enforcement of this Agreenent. 3. t 570s I Àcceotance o f Service of Process In the event that any legal actÍon is commencedby the Particfpant against the Agency, service of process onthe Agency shall be made by personal service upon tbe Directoror in such other manner as may be provided by law. In the event that any legal action is com¡nencedby the Àgency against the Participant, service of process onthe Participant shall be made by personal service upon thegeneral partner of the Participant and shall be valid whether made within or without the State of California or in such other ma'nner as may be provided by law. c. t s706 ¡Riqhts 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 tl¡e same default or any other defáult by the other Party. t SToz ¡Inaction Not a Waiver of Default Any faílures or delays by either party in asserting any of its rights and remedi'es as to any default sirall not operate as a waiver of any default or of any such :ights or remedies, oF deprive either such party of its right -uo institute and maintain any actions or proceedings '*hich it may deem necessary to protect, assert or enforce any such rights or remedies E- [S7O8l 4e.medies and Ricrhts.gf Terminati.on 1. tS7O9l Damaqes If either party defaults with regari --c any ofthe provisions of this Agreement, the non-default,:lg party D t2-tl-87 724tk/22es/3o -28-EXHIBIT A - Page 34 of 38 87-704662 sharl serve written notice of such default upon the defaultingparty. If the default is not cured or commenced to be cured bythe defaulting party within thirty (30) days after service ofthe notice of default (or within such other period as is setforth herein), the defaulting party shall be liable to theother party for any damages caused by such default. 2. { 5710I Sr¡ggi.fic Perfor¡nance If eitÌ¡er party defaults under any of the provisionsof this Agreement, the non-defaultlng party shall serve writtennotice of such default uþon 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 timelimit as may be set forth herein wlth respect to such default,the non-defaulting party at its option may tbereafter (but notbefore) commence an action for specific performance of terms ofthis AEreement. 3. [ 5711 ] Termination bv the Partici¡¡ant In the event that prior to the time establishedfor the tease Transfer in the Schedule of Performance (Attachment No. 3), t}.e Participant, is not in default of this Àgreement and has satisfied all of the Conditions Precedent (as set, forth in Section 302 of this Agreement), bui the Agency nevertheless fails to execute the Lease (Attachment No. 4) bythe tlme established therefor 1n the Schedule of Performance (Attachment No. 3) then thls Agreement shall, êt the option ofthe Participant, be terminated by written notice thereof to theAgency. À termination under thÍs Section 711 shall not prevent the Participant from pursuing any claim for damages or specific performance to which it might otherwise be entitled. 4 f S712 J TermÍnation bv the Aqencv In the event that prÍor to the Leasehold Conveyance: (a) The Participant (or any successor j.n interest) assigns or attempts to assign :he Agreement or any rights therein or :r theSite in violation of this Agreemen:; cr (b) There is a change in the ownership oi theParticipant contrary to the provisicns ofSection 109 hereof; or 12-11-87 724tk/229e/1O -29-EXHIBIT A - Page 35 of 38 .) Br-704662 (c) It¡e Participant does not submit certificatesof insurance, construction plans, drawÍngs and related documents as reguired by this Agrreenent, in the manner and by the datesrespectively provided in this Agreementtherefor any such default or fail.ure shallnot be cured within forty-five (45) day.safter the date of written demand therefor bythe Àgency; or (d) The Participant fails to satisfy all Conditions Precedent (as set f,orth inSection 3O2 of this Agreement) by the tÍneestabllshed therefor in the Schedule of Performance (Attachment No. 3); or (e) The Participant fails to provide proof tottre Agency by the date established for the Agency Conveyance by the Schedule of Performance (Àttachment No. 3) that theParticipant has obtained bindfng loan com¡nitments for construction financing foraII of the Public Improvementsi tt¡en this Agreement and any rights of the Participant or any assigmee or transferee in the Agreement, or arising therefrom lrith respect to the Agency or the Site, shall, ât the option of the Agrency, be terminated by the Agency. A termination under this Section 712 shall not prevent the Agency from pursuing any claim for damaqes or specific performance to which it might otherwise be entitled. vrrr. tssool Each of the Àgency, 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, brokerrs fees, of finderrs fees whicÌ¡ may accrue by means of the acquisition of the Site, and agrees to hold harmless the ottrer party from such commj-ssions or fees as are alleged to be due from the party making such representations. B I s8o2 I Successors In Interest The terms, covenants, conditions and restrictions ofthis Agreement shall extend to and shall be binding upon and inure to the benefit of the heirs, executors, aci¡ninistrators, successors and assigns of the parties. A. t 58011 ],,2-tL-87 724tk/2299/3O SPECIÀL PROVISIONS ReaI Estate Cornmissions -30- EXHIBIT A - Page 36 of 38 B7-r04662 Upon the termination of tl¡e restrictions imposed bySectfon 1O9 of, t!¡is Agrreement, which terminate upon theissuance by the Agency of, a certlf,icate of completion for arlof, tÌ¡e Public Inprovements, all of the terms, covenants,conditions and restrictj.ons of this Agreement which do notterminate upon the issuance by the Agency of the certi.ficate ofCompletion for the entÍre Site shall be deemed to be, andshall, constitute terms, covenants, conditions and restrictionsrunning with the land. c. t s8o3l Àmendments to this Agreenent Ihe Partlcipant and the Agency agree to mutuallyconsider reasonable requests f,or amendments to this Agreement wbich may be made by lenders, or Àgencyt s counsel or financialconsultants, provided said requests are consistent witl¡ this Agreement and would not substantially alter the basic businessterms included herein. rx.[ 59OOl ENTTRE AGREEMENT, WAMRS This Agreement may be slgned in counter-parts, and is executed in five (5) duplicate originals, each of which is deemed to be an origÍnal. Tl¡is Agreement includes pages 1through 34 and Attachments 1 through 8, which constitutes theentire understanding and agreement of the parties. This Àgreement integrates all of the terms andconditions mentioned herein or incidental hereto, and supersedes aII negotiations or previous agreements between thepartfes or their predecessors in interest with respect to allor any part of the subject matter hereof. All waivers of, the provisions of +-his Agrreement must bé tn writing by the appropriate authorities of the Agency, theParticipant, and aII amenilments hereto must be in writing bythe appropriate authorities of the Agency, :he Partlcipant. In any circumst,ance where under this Agreement eitherparty is required to approve or disapprove any matter, approvalshall not be unreasonably withheld. x fsloool TIME FoR ÀccEPTAt¡cE oE ÀGREEMENT By ÀcENCy This Agreement, when executed by :ie Participant anddelivered to the Agency, must be authorized, executed anddelivered by the Agency on or before thirty (30) days aftersigning and delivery of this Agreement by Participant or this -*Agrreement shall be void, except to tt¡e extent that the t2-J.l-87 724tk/22ee/3o - 31- EXHIBIT A - Page 37 of 38 .) Br-704662 Participant shall consent in writing to a further extension of time for tl¡e authorization, execution and delivery of this Agreement. ÍÌ¡e date of this Agreement shall be the date whenit shall have been signed by the Agency. IN WIINESS WHEREOF, the Àgency and the Participant have sigmed this Agreement on the respective dates set forth below. December 15.L987 SAI.¡ JUAI.¡ CAPISTRÀNO COMMUNIIY REDEVELOPMENT AGENCY t ÀÎÎEST: e 1!ary Mary Ann er APÞROVED AS TO FORT'I: Thomas . Clark J Stradling,occa, Car & Rau Special Counsel to Agency Agency counse I L2-L]--87 724rk/22ee/30 By: rnan L. Hausdorfer ÀGENCY ll FRANCT PLAZA INVESTMENT GROI'P Paul Lloyd Farber .'PARTIcIPA¡¡TII EXHIBIT A - Page 38 of 38 'l l Agency Copy FTRSI À¡,IENDMENT TO OWNER PARTICTPÀd¡O¡I ÀGREENÍENÎ fbis Flrst Amendment to Owner Participatio?_Àgreement("First Àmendment') is entered into as of thís¿Jg clayef october , 1989, by ancl between the San iluan Capistrano Community Redevelopment Àgency (the "Àgency") and Franciscan P1aza Investment Group, a California corporation (the*Participant'). WHEREAS, Àg€into an Owner Pa(the 'OPA"); and BECI.TÀLÊ ncy and participant have previously enteredrticipation Àgreement dated December 15, 1987 ' YIIIEREAS, the partles mutually desÍre to add certainprovisions to the OPAr lncluding without limitation Àmendmentof the f,ease Agreement between the parties (Àttachnent No. 4 to the OPÀ) and provisions concerning reimbursement for costs incurred by the partles or to ba incurred by the parties for archaeological studies. !¡ow, THEREFORE' the Àgency and the ParticiPant agree to amend the OPA as follows: Sectíon 1. O¡r page 22 ot the oPA, in Section 501,entitled'Usesr'amend the first full sentence on page 22 toread: 'However, in no event shal.l the number of commuter spaces be Less than one hundred thirty-one (131)." Section 2. On page 22 oî, the OPÀ, preceding the firstfr¡ll paragraph add: As set out in greater detaÍl in that certaÍn Joint Parking Agreement to be negotiatecl by and betweenPartlclpant and the Agency (the ',foint Parking Agreement'),after completion of Phase II, in the event circumstances determine that not all of the spaces in the ParkingFacillty are needed for tenant parkíng, the Agency shall have the right to obtain and set aside additional commuter spaces upon payment to the Participant .of 65,446 perspace. It is the íntention of the parties that commuterparking will not affect the evening hours of operation oftenants as set forth in the .Toint Parking Agreement. The Agency shall have the right, upon.reasonabLenotification to Partícipant, to use of the entire structurefor general public parking wit!¡ no controls or charges for special. events and on specÍal days, such as the annual EXHIBITB-Pagel of 7 1:\ ,) cômmnTlíty celebration Õf Swallor¿'s Day, !{otwithstandå"nganything herein ts the contrary, the numþer of sp*cialevent days shaLl not, exceed six (6) days per year, andParticipant shall receÍve notice thirty (30) days prior to such special events. If so requested by the Agency,Farticípant shal1 provide space to house the enrploye€s andoperations for proposeû rail baggage service and ticketsales, In the event AEeney qequests such space in an areaother than the office being built ån tlre Parking Facitity,or such office needs to be modíf,ied for this use, Àgenclrshall make such modif,Ícatíons at Íts sole cost. If anymodifications approve"d by hoth parties require a reductionin the number of parhång spaces such loss shall result in an êgual reduction Ín the one hundred and thirty*one (131) Ëpãces avaÍl"abl"e tar commuters' flommencing wåttr the opening of, the Parking Structure there shall. be a minimurn charge assesseð f,or use of commuter parking spaÇes and fifty percent (50e) of said charçe shall" be payable ta Farticipant. Participant shalL raake tbe restrooms ön the first floor of the project available fçr use by the general public. Signaçe indicating tt¡is shaLl be approved by both the Àgency and Partåcípant and shaLÌ be appropríately posted to adequately inform the public of lhe availability of the restrooms, Sqction 3 " On page 23 of the sentence of the first ParagraPhre¡rlace with the following: OPA, delete thesf Section 8.502 firsl and t Ag€ncy sha1l have soLe dÍscretion in sel.ecting thefírm and,/or method for managing the parking facility, incS"uding the eharges for use and other berms of operationssubject to prcvíding the tenants of the Particípant and theProvincial Buil.ding with the required parking spaces andensuring the Particípant receives 50? of the proceeds ofall paid parking. Seçti.on d. On pãge 30 of the OP.&, after Section 803, add new Sections 8A4r 805, 806, 807 and 808 to read as follows: "Ð. tS804l Reunþtlf s"çr[s,n!, fqr ArchaeÕ1oçical SJudies-. 1. tS805l Aogflcy-.Reimburser¡lenþ .fpr Archgeoloqical Investiqatiens" Participant at its sole cost and expense has causedthe investigation for cultural resources on that portion ofthe Site identifíed as Ãssessor's Parcel Nos. 121-150-09,j.21*150*10, l-21_-1"5t-L2, L2l"*1"50*20, 121-150*21. t2r*L50-22 ithe "Parcels" ) at â cost of $24,980. Thê .Agency Egrees to 3488n/2299/03O EXHIBIT B -Page2of 7 .l reirnburse the Participant for one-haLf, of those costsactually incurred in an amount not to exceed $12,490.Reimbursement wil.l be made withÍn Èhirty (SO¡ days afterthe Partlcipant has submitted a flnal accounting to theAgency with supportíng documentation which evidences thecosts actually incurred in the cultural resourcesinvestígation of the Parcels. 2. t5806l Particlpant Reimbursement For. Àrchaeo looical. f nvestl gaFions Agency at its sele cost and expense has caused thefurthei iniestigatiorí of the ParcelË gor archaeological resources at a cost not to exceed $rerrl88, under an agreement with the Chanbers G.roup dated May 3, 1989 (the 'Chambers Group Agreement'), and amended through subsequent authorized change orders. the Participant agrees to reimburse t,he Àgency for a portion of the costs actually Íncurred under the Chambers Group Àgreement in an amount of$35,297. Reimbursement will be made within thirty (30) days of the completion of work under the Chambers Group Agreement. In addition, Participant shall at its sole cost ancl expense has caused further archaeological lnvestigation ofthe Parcels at a cost of 82L2,89?. The Àgency agrees to reimburse the Participant f,or additional ¡nitigation measures in an amount not to exceed Sf58 1984. ndirnbursement will be made withln thÍrty (30) days afterthe ParticÍpant has submitted a final accountÍng to the Agency with supporting documentation which evidences thecosts actually incurred and paid irl the cultural resourcesinvestigatÍon of the Parcels. the Àgency's total obligations in SectÍon 805 and 806. is fi277,365., of which Ûla,Agg.53 has already been paid. The remainder shall be reimbursed according to theprovisions set forth in Sections 805 and 806. 3. tS807l Àqgncv Ownershíp of ÀrchaeolooÍcal Finds Participant agrees that in return for the reimbursement promised and the cost incurred by the Àgency under Sections 805 and 806 that the Agency shall become thesole owner of any archaeologically significant materials,objects or other finds located on the Parcels. Participantshall have the right to display selected items from thearcheological finds located on the Parcels provided theyare properly displayed and adequately protected as requiredby Àgency. Àgency shall have the right to'approve thespecific items and period of display. fn the event thatthe Àgency determines to transfer the ownership interest in 3488n/2299/030 -3- EXHIBITB-Page3of7 any of said flnds located on the Parcels, then the proceedsof said transfer shall be divlded on a fiity percent (S0%)basis between the Agency and the Participant.- 4. t580Sl Ltabiltty Participant shall protect, defend, indemnify and holdharmless the City of San ,fuan Caplstrano (the "CÍty"), theÀgency and their elective and, appointive boards, officers, agenÈs and enployees from any and all claims, liabilities, expensesr or damages of, any naturer including attorneyfees, for injury to, br death of, any person, and forinjury to any propert:¡, includlng conseguential damages ofany nature resulting theref,rom, arlsing out of or in any sray connected with the performance under Sections 805 or 806 of thls Agreement by, or on behalf of Participant. Participant shall comply wlth all of the provísions ofthe Worker's Compensatlon Insurance and Safety in Employment Laws of the State of California, including theapplicable provisions of Divisions 4 ancl 5 of theCalifornia Labor Code and all. amendments thereto, and allsimilar state, federalr ot loca1 laws applicable; and shallindemnify and hold harmless the City and the Àgency andtheir employees, officers and agents from and against allclaimsr liabilities, erpenses, damages, suits, actions,proceedings ancl judgments of every nature and descrÍption,iricludllng .attorney's f,ees, presented., brought or recoveredagainst Ctty or Agency, for or on account of any liability under any of salcl laws which may be incurred by reason of any work performed under Sections 805 or 806 of this Agreement by ParticipanÈ or on its behalf. Agency and Clty do not, and shall not, waive any,.. rights against Participant which they may have by reason ofthis Section 808 because of the acceptance by City or Àgency or the deposit with City or Agency by Participant ofany insurance policies or eertificates of insurancepurporting to indemnif,y for the aforesaid losses. Theaforesaid hold-harmless agreements by Participant shatlapply to all Liabilities, claims, expenses, and damages ofevery kind including, but not limited to, attorney fees,suffered or alleged to have been suffered, by reason of theaf,oresaid operations of Participant or any subcontractor orothers performing on behalf of Participant, regardless ofwhether or not such insurance policies are applicable." Sectlon 5. On pages 3 and 4 of Àttachment No. 4 to the OPA (the 'Lease Agreement") amencl Sectfon 4(a) 'to read asfollows: 34BBn/2299/03O -4- EXHIBITB-Page4of7 . - :- .iii ' :.';" : I '(a) Rent. For each of the periods (the ,Rental periods,.) commencing si¡ (6) months from the date the ciby allows theoccupancy of the ParkÍng Facility through the issuance ofthe certificate of occupancy or a Temporary certificate ofOccupancy on the Parking Facility in conformity with theAgreement and continuing according to the schedule belowfor the first si¡ (6) Rental Periods and thereafter on anannual baslsr the r,essee agrees to pay to the Lessor as theBase Rent the sum of One Dollar ($1.00). The Certificateof Occupancy or Temporary Certif,icate of Occupancy shallnot be withheld due s-olely to a delay ln the participant,s installatlon of the eþuipment necessary for commuterparking. In addition to the Base Rent, the Lessee agreesto pay to the Lessor Supplemental RenÈ for the first three(3) Rental Feriods accordlng to the following table: Rental-.-Period Ending In Month I 6 $3L2,5402 - 1g 2gL,27L3 36 250,024 At the end of, the third operating year after the date oÉissuance of the certificate of, completion for the ParkingFaciJ.ity, the Lessee and Lessor shalL review the actualperformance to determine the third year net cash flow afterdebt sêrvice and before distribution to the Participant as apercentage of equity. fn ¡nahing .this calculation, equity shaIIbe the difference bet¡reen the construction lender(s), orpermanent lender(s) determination of project value for thepurPoses of makíng the construction loan and the amount of theloan. Using this percentage the tessee shaIl pay an aclditional arnount of Supplemental Rent for Rental Periods 4, 5 and 6,ending Ín months 48, 60 and 72 respectively, based on thefollowing table: Cash Flow as* of Eauitw less than 0t 0"t to 4. Ot 4.0% to 8.0?8.01 to 13.01I3.0t to L7.0* more tban 17.0% Sectipn 6. Option to Purchase. The Agency shall have the rightFacility at its sole option. This obefore two (2, years after the certi 3488n/2299/O3O Amount of Supplemental. Rent Additional Amount of SupolementaL Rent 275,0OO 200,000 I75, 000 150,000 125,000 -0- purchase the Parkinqion may not be exercisedcate of completion has topt t1 -5- EXHIBITB-Page5of7 ) been issued on the entire project (Phase I and Phase If), and must be exercised no later than seven (7, years after the íssuance of the certificate of completlon for the entire .pro j ect . The Agency and the Participant shaIl begin negotÍations toset the price at which the Agency may purchase the ParkingFacility and the lease back costs within thirty (30) days ofthe execution of this First À¡nendment. At the time ofnegotiations, the Agency and the Participant shall agree inwriting on all factors which shall be used to establish a valuefor thã structure includiÍ¡g, but not llmlted to, the followingcriteria: l. The original construction cost of the Parking Facility including hard costsr soft costs and offsites. 2. the original cost of the land on which the ParkingFacil.ity ís located. 3. Payments- the ParticÍpant has made to the date of purchase for financing fees, principal. and interest on theportion of his flnancing dealing with the Parking Facility 4. Compensation paid to date by the Agency to theParticipant for the lease of the structure. 5.' Such other factors as the Àgency or the Participant may deem appropriate ín establishtng a value for the structure. Unless otherwise modifíed by agreement between the Agency and the Participant, upon purchasing the Parking Facility the Àgency and the Participant sha1l ensure the following: . ..1. Àdeguate parking shall be maintained for the tenantsof Franciscan P1aza and the Provipcial Building according toconditions set forth in the iloint Parking Agreement. 2. The Participant shall continue to: (i) receive its share of the compensation coll.ectect by tbe Àgency for the paidparking and (ii) pay its share of the CÀItt charges. In the event that the parties are unable to come to an agreement by October L, 1990 as to the option purchase price this option shall be terminable by either party. fn the eventthat this section is found to be unenforceable or invalicl suchunenforcibility or invalidity shall not effect any otherprovisíon of this Agreement which shall remain ín full force and effect. 3488n/2299/03O het -6- EXHIBITB-Page6of7 I Section 7-. Each and every provision of the OPA remainsin full force and effect and survives this Amendment. The OpÀis incorporated herein by thls reference. SAN üUÀN CAPISTRÀNO COMMUNIÍY AGENCY Kenneth E.aes , Chairman ATTEST: ency etary .APPROVED AS TO FORITT: By n tt ^? 6ht--,^-LlStradling, Yocca, ëarlson & Rauth Àgency AËtorney FRANCI By: TNVESTMENT GROUP Paul F rber, Br€si.d€nt, êatcno /rwro COPY 3488n/2299/O3O -7- EXHIBITB-Page7of7 Considera And when recorded, please mail to:tM.,c ty erk City of San ,Juan Capistrano City Clerk's Department, 3?400 Paseo Adelanto San ,Iuan CapÍ.strano' CA 92675 of San ,Iuan Capistrano Second Auendment to Osmer ParticiÞation A€rreement This Second Amendment to Owner Participation Agreement("Second Amendment") is enterêd into as of this ?th day of May, 2002, by and between the San 'Juan Capistrano Communlty Development Agency (the "Agency") and Busk Development, Inc. (hereinafter referred t,o as "owner") ' Recitars I{bereasr' the Owner Participation Agreement v¡as executed by the Agency and Franciscan PIaza Investment Group, the origÍnal developer of the Francis.can Plaza project (the "Participant"), on December 15, L987;and, Ì{hereas, the FÍrst Amendment to the Owner Participation Agreement was executed by the Agency and the Participant, on October L7, 1989;and, Recording Requested by: City of San 'Juan Capistrano Section B. Except to the extent Agreement and the First Amendment RecordÍng fees exempt due to Govt Code 6103 Documentary Transfer Tax - No amend certain and its first Owner Owner I{hereas, the current "Owner" and Agency desire to provísions of the Owner Particípation Agreement Amendment. Now, therefore, the Agency and Owner agree to amend the Participation Agreement and the First Amendment to the Participation Agreement as follows: Section À. Section 1 of the First Amendment to the Owner Participation Agreement and Section 50L of the Owner Participati-on Agreement shall be amended to provide for, seventy-three (?3) commuter parking spaces, that the Ownerto the Owner Part,icipat j-on Participation 1 EXHIBITC-Page1of2 Land are modÍfied by the First Amendment each and every provision of the .toint parkiñg and Maintenance Agreement remains.in fuII force and effect and- survives this Amendment. The .Toínt ParkÍng ând Maintenance Agreement is incorporated herein and by this iãi"t"rrð". If any ambiguity exists between this Fírst Amendment and the .Ioint Pãrking- and Maintenance Agreement, this First Amendment shall control. In lfitness Ílhereof, the partj-es have executed this E'irst Amendment as of the day and year above.written' as to Form: rTohn S vri Agency C ounciL Attest: ret Mon Agency SecretarY o Cha maBus €.{+-€-þ- î ,lJZ e Ca p I Own Age I son 2 EXHIBIT C -Page2of 2 t BEts;ffiJf ffi+îlbårP.î# Éiît DEc 15 lese .€- A.qA"4,"4'LnmdÍ Agency Copy 89-68 I 025 Recording Reguested by: City of San Juan Capistrano ct4 Recording fees exempt due to Govt Code ó103 Docunentary Transfer Tax - No Consideration And. when recorded. mail t<¡: City of San Juan Capistrano City Clerkrs Depart¡nent er, City Cl 32400 Paseo Adelanto City of San Juan Capistrano San Juan Capistrano, CA 92675 JOINT PARKJNG AND MAINTENANCE AGREEMENÎ AND DECLARATION OF COVENANTS RUNNING WTTH THE LAND TI{IS JOJNT PARKING AND MAINTENÀNCE AGRNE},TENT AND DECLARÀTTON OF COVENANTS RUNNING WITH THE Í,AND (the n'Agreement") is made and entered into on this Sth day of Decenber r 1989, by and betweenFranclscan PLaza Investnent Group, a California Iimítedpartnership, (hereinafter referred to as "Developer") and the San Juan Capistrano Comrnunity Redevelopment agency, a public body, corporate and politic (hereinafter referred to as ".Agency"). RECITALS: This Agreenent is made and entered into on the basis of t,hefollowing facts, understandings and intenti.ons of the Parties: A. On or about September 30, LgB7, Developer and Robert L. Larasen and Dorothy Ngaire Larsen, Trustee of the Robert L. Larsen and Dorothy Ngaire Larsen 1984 Inter Vivos Trust, Dated December 6r 1984 ("Larsen" colLectíve1y herein) entered into a certaín Easemerrt Agreement ( the t'Developer/Larsen Easement Agreement" ) which rtas recorded December 1 I, 1989 as Ìnstrument number B7-7001 80in Official Records of Orange County, California which provided forcertain reeiprocal easements appurtenant to the propertles ownedby Developer and Larsen, respectively, and which contains an agreement concerning parkíng in the Parking Facility hereinafter defined. The term "Larsen Parcel" as used herein sha1l mean thosecertain lands referred to as the Larsen Parcel in the Developer/Larsen Easement Agreement. B. On or about December 15, 1987, Deve)-oper and Agency entered into a certaín owner Participation Agreement (the "oPÀt')which defined a certain Parking FaciJ.iËy and made provision for a $luro 1 EXHIBITD-Page1of23 tt future lease between Developer and Agency for said Parking Facility as welI as the potential subseguent acguÍsitÍon of the fee interest in the Parking Facility by Agency from Developer. The ParkingFacility is indicated on Attachment No. 1 attached hereto and ís a structure built on a portion of those lands more fully describedin Attachment, No. 2 attached hereto. The potential subseguent acquisiÈion of the fee interest in the Parking Facility is subjectto Ðeveloper's compliance rrith the California SubdÍvision Map Act.All terms used ín this Agreement are more fully defined in said OPA, said OPA being incorporated by reference herein. C. Concurrently with the grant of an estate in the ParkÍngFacility from Developer to Agency (defined as the "Lease Transfer"in the OPA), Developer and Àgency desire to set forth certain coverrants whÍch will run with the Parking Facility and pertain to the operation and use of sald Parking Facility as (1 ) an integralpart of the conÈiguous real property fully defined in Exhíbit A attached hereto (the "shopping Centerrr), (21 an íntegral part ofthe contiguous real propert,y fully defined in Exhibit B attachedhereto ( ftre "Larsen- Pãrcei" ) pürsuant to the terms of the Developer/Larsen Agreement, and (3) as a public facility used for paid commuter parking. The Shopping Center together with the Parking Facility shall be collectively referred to herein as thettParcelstt. NOw, THEREFORE, in consideration of the mutual covenants agreements contaíned herein and other valuable consideration' Parties agree as follows: 1. DEFINITIONS. Each reference in following terms shall mean: this Agreement to any of the and the 1.1. Building Àrea. Those areas to be constructj.on of the building and improvements commercÍa1 or office use on the Shopping Center. utilized for intended for 1.2. Common Area. All areas of the Parking Facílity togeÈher with the 'rpedestrian promenade" and "pedestrian bridgê", all as shown and indicated on Àttachment No. t hereto together with the "Camlno Capistrano driveway" shown and indicated on Attachment No. 2 hereto. Any enlargement of or addition to the Common Area as provided herei-n shall be included in the definition of Common Area for purposes of this Àgreement. '1.4 Occupant. Àny person or persons from time to time entitled to the use and. occupancy of any portíon of the BuildíngArea in the Shopping Center or the Larsen Parcel under this Àg:reement or any lease, license or concession agreement, Õr other instrument or arrangement under which the occupant acguires its 2 EXHIBITD-Page2of23 at rlght to such use and occupancy. Occupant shall include the officers, directors, employees and agents of such persons. 1.5 parking Àrea. That portion of the Common Area used for parking of motor vehicles, íncluding without limítation, incidental and interior roadways, walkways, curbs and landscaping withÍn the areas used for such parking, together with all improvements which at any time are erected thereon, but excluding parklng eguipment or space to house the employees and operations for proposed rail baggage servÍce and ticket sales and for security personnel locatedin the Common Area. Any enlargement of or addítion to the Parking Area shall be included in the definilion of Parking Area for purposes of this Agreement. 1.6 Parties. Agency and Developer and their respective successors in interest to their respecti.ve interests in the Shopping Center and Parking Facilítyr âs shown on the Official Records of Orange County, California. 1.7 Users. All persôns granted permission to utilize the Common Area, including without llmltation, occupants, Parties, employees and service people, licensees, invÍtees¡ customers, ownersr contractors, agents, lessees, sublessees, tenants and concessi-onaires. 1.8 Commuters. Members of the public who have paid a daily fee in the minimum amount of Two Dollars ($2,00) per day for a license to park their vehicles in the Parking Facility. 2 GRANT OF RECIPROCAIJ EASEMENTS. 2.1 Comnon Àrea Easements. The Common Area on each Parce1 shall be used only for the fo11-owing purposes related to the business and. activities conducted in the Shopping Center and in the Larsen Parca} and related to the use of the Parking Facility for paid Commuter parking: â. Parkíng. Parking of motor vehicles in the Parkíng Facility. The number of spaces allocated without charge to the Users and Occupants of the Shopping Center shall be based upon a determination of the parking spaces necessary for the commercial uses as determined by the City of San Juan Municipal Code (the 'tcode"). Additionally, a certain number of spaces shall be allocated to Users and Occupants of the Larsen Parcel as set forth in Section 7.1.a. hereinafter. The remainder of the spaces shall be allocated to Commuters. This proportion shall be readjusted if a change in the use of the commercial space reguires a greater or lesser number of parkinqr spaces under the Code. Notwithstanding, (1 ) in no evefit shall the number of Commuter spaces be less than 3 EXHIBITD-Page3of23 ao one hundred thirty-one (131) and (21 in the event thatr after completion of Phase II, circumstances determine that not all of the spaces 1n the Parking FaciJ-ity are needed prior to 7 P.M. for parking by Users and Occupants of the Shopping Center, the Agency shaII have the right to obtain and set asLde additional Commuter spaces upon written agreement between the Parties and upon payment to the Developer of $51446.00 per space or moret it being agreed and understood that the sum of $5 1446.00 was arrived at based upon a projected. cost of $1,203t566.00 and a total of 221 spaces for the purposes of this Section 2.1 .a. Subject to the rights hereto granted by Developer to Users and Occupants of the Shopping Center, the Agency shall have the rlght' upon reasonable notification to Developer, to use all of the Parking Facil-ity for publlc parklng on Swallow's Day and up to fj-ve(5) addítional 'rspecial Days" per year upon reasonable notlce toDeveloper. In such event, no fee shall be collected from persons parking Ín the Parking Facility. On such days, Users and Occupants shall continue to have the rlght to use the Parkíng Facllity but such use will be on a ttfÍrst come, first serve" basis. The Àgency may promulgate, and shall use their best efforts to enforce, rules and regulations pertaining to parking. Agency shall have sole discretion ín selecting the fÍrm and/or method for managing the parking facility, including the regulatíonsf reasonable charges for Commuter parking use and other terms of operations subject to the terms of this Agreement. As of the date of this Agreement, however, Developer has been designated by Agency as the manager of the Parking Facility and, as manager, Developer will continue to receive a management fee from Agency, tt being agreed, and understood that the management fee ís egual to the administrative fee incl-uded in common area maintenance charges described hereinbelow. Agency may at any time upon thirty (30) days r¡ritten notice to Developer select an alternative manaqement firm. The purpose of the rules and regulations shall be to ensure order and safety but shall not unreasonably interfere with the rights granted Developer hereunder. AIl fees col-lected by t'he egãncy (or Developer if Developer is acting a.s managêr of thepãrking Facillty) sfraff be díst,ributedr or a 50/50 basis, between Developer and Agency on a guarterly basís. No offset' shall be made fòr common area maintenance charges. Agency (or Developer if Developer is acting as manager of the Parking Facillty) shall bill Developer (or Agency if Developer is actlngr as manager of the Parking Facility) guarterly for the other Partyrs share of common area .¡naintenance charges attributable to the Parking FacilÍty pursuant to Section 3.2 hereinafter and such charges shall be paíd 4 EXHIBITD-Page4of23 t within forty-five (45) days of billing. b. Ingress and Egress. fngress and egress by any Users and any motor vehicles of such Users to and from any portion of the Common Area and t,he public streets adjacent to the Common Area. c. Public Utflities. Installation, mainÈenance andoperation of public ut,ilities and services for the Common Area orBuilding Area, together with and includíng, without limitation,vaults, manholes, meters, transformers, pípelines, valves,hydrants, sprinkler controls, conduits, sewage facilities, and aIIrelated facilities, alI of which shall whenever and wherever reasonably feasible be located below the surface of the ConmonÀrea, or the surface of any other above ground improvements located thereon; provided., however, that in any event, all of the foregoingpermitted public utilities and installations, which are located above the surface of the Common Area, shall be placed so as not tointerfere wíth, restrict, or Ímpede other uses of Common Areaprovíded for hereín. d. Pedestrian Traffic. Pedestrian traffic by Users between business establishments Ín the Building Areas, between the Building Areas and the Common Area, and between the Bulldíng Àreas and Common Area and the adjoining streets. e. Comf ort and Convenience. l,linor comfort and convenience facÍlities for Users, such as mailboxes. public telephones, and benches, as each Party may from time to tirne deemappropriate to construct or permit to be constructed on the respecÈi-ve Parcels; provided, however, that no such minor inconvenience facilities sha1l interfere with, resÈrict or impede other uses of the Cornmon Area provided herein. f. Temporary Construction Activity. Constructíon, maintenance, repalr, replacement, rearrang'ement and rernodeLing of buildings and improvements wíthin Building Areas, and Common Areas, landscaping, pedestrian walkways and other improvements in the Common Area not substantially affecting or changing the Common Area except as permÍtted or reguired herein. AII such work shall be conducted in the most expeditíous manner reasonably possible to minimize the interference with use of the Common Area, shall be diligently prosecuted to completion, and shaIl otherwise be performed in compliance with the provisions of Section 2.5 hereof.In connection with work of construction performed with Buitding Areas; incídental eneroachment upon Common Area may occur as aresult of the use of ladders, scaffolding, store-front barricadesand sírnilar facilities resulting ín temporary obstruction ofportions of the Common Area, all of which are permitted hereunderso long as their use is kept within reasonable reguirements of o 5 EXHIBITD-Page5o123 aI construction work expeditiously pursued. Common Area may beutilized from ingress and egres,s of vehicles transporting consLructÍon materials and eguipment and persons employed in connection with any work provided for herein and temporary storageof materials and vehicles being utilized ín connection with such consÈruction, subject to all of Èhe other terms of this Agreement. g. Service and DeIívery Vehícles, Ingress, êgress, and temporary parking of delivery and servlce vehicles travelling to and from the Building Areas, or any portion thereof, and the public streets adjacent to the Shopping Center for the delivery of goods, wares, merchandl-se, furníture, fixtures, supplies and eguipment, and t.he rendering öf services to any Occupant. h. Doors and Exits. The opening on toof doors and other exits of portions of the contiguous to the Common Area. the Common Àreabuilding Areas i. Foundations, Footings. Overhangs and Canopies.Installatíon, repaír, replacement and maintenance of:(Í) Þuilding foundations and footings; (ii) butlding canopies and canopy support columns; and (iíi) pilasters and other building columns or plllars extendÍng from any portion of the Building Area of êny Parcel, overr onto, under and into the Common Areaiprovided, however, that buildÍng foundations and footì-ngs shall not extend beyond a lateral distance of five feet (5') from the Building Àrea 1ímit línes upon whích the buildlng is located.; and provided, further, that any building canoples or building overhangs on any building on a Parcel shall not in any event extend beyond Lhe vertical plane of the outside edge of a sidewalk in the Common Area located on the Parcel, ad|olning the Buildlng Area perlmeter. j . Encroachments. t'linor encroachments of building overhangs, support columns, canopies, êaves and sÍgns from a Building Area into the Common Àrea. 2.3 Grant of Easements by Parties. Each Party grants to the oÈher Party non-exclusíve easements over, across, in, under and through each ParceL and appurtenant to and for the benefit of the other Parcel, for the uses and purposes set forth in Sectlon 2.1 and 2.2. Each Party further grants to the other Party a non- exclusive easement, appurtenant to and for the benefit of their respective Parcels, for ingress, egress and access to the Common Area located over, along, and under each Party's Parcel for the purpose of effectuating any necessary repairs, maintenance and replacement of the Common Area located on each Parcel as provided herein. 2.4 Use, Duration, and Termination of Easements. 6 EXHIBIT D - Page 6 of 23 oo , a. Use and Duration. Each easements granted hereinshall be used by the Parties as an appurtenance to and for the benef j-t of their respecti-ve Parcels, and solely f or the purpose of developing and operating the Parcels pursuant to a comnon plan ofbeneficíal use. Any such easement shall termj-nate with respect tothe benefitted and burdened Parcels after the terminatlon of this Agreement under Section 11.2 if the use thereof for the benefit of a Parcel is abandoned for a continuous period of two 12\ years. b. Procedure to EstablÍsh Termination. Abandonment andtermination of an easement hereunder shall be presumed for thebenefit of any Parcel burdened by such easement upon complfancewith the following procedures by the then record orener of suchParcel. Such record. o\dner shall record a notice and affidavit inthe Offlce of the Recorder of the County of Orange which shallcontain the following: (i) Name. The name of the record owner of the burdenedParcel. (fi) Statement of Abandonment. À statement concerni-ng the basis upon which the easement is deemed abandoned. (iií) Identlfication of Owner. l\n identification of the record owner of the Parce1 benefited by the abandoned easement and the ídentification of the record owner, if anyrof any l-easeholdinterest in such Parcel. 1iv) Parcel DescriptÍon. A description of the Parcel burdened and the Parcel benefíted by the easemenL. The foregoing notice and afffdavit shall be duly verified and acknowledged and contain a certÍficate verifying that a copy thereof has been served. upon the then record owner of Èhe Parcel benefits by such easement that the then record owner, lf âAYt of the leasehold interest in such benefited Parcel by mailing such notice, certified maj-l, return receipt reguested, postage prepaid to the address given for maÍIing tax statements in the office of the Tax Collector of orange County. The notlce and affl-d.avit under subsection b. shall create a conclusíve presumption binding upon all persons ownj-ng any interest in either the Parcel benefited or the Parcel burdened by the easement claimed to be abandoned, unless the record owner of the fee interest. ín the Parcel benefited by such easement or any record ow¡1er of any leasehold interest in such Parcel records, in the Office of the Record.er of Orange County, and concurrently serves on the then record o!{ner of the Parcel burdened by such easement, a notice and affidavit settingforth the following information: 7 EXHIBITD-PageToî23 o (i) Name. The narne of the persons giving the notice and affidavit, identifying the basis upon whi-ch such person claJ.ms to have the requisite record interest in the benefitted Parcel; forth the easement; (ii) Basis of Non-Abandonment. A statement settingfacts constituting the claim for non-abandonment of the (iii) Identificatj-on of Owner. An identification of the record owner of the Parcel burdened by the easementi and (iv) Parcel Description. A description of the Parcel benefited and the Parcel burdened by the easement. Such notice and affidavit shaIl be duly verifled and acknowledged and contain a certificate verifyÍng that a copy thereof has been served upon the then record owner of the Parcel burdened by the easement by mailing such notice, certified mail-,return receipt reguested, postage prepaid, to the Address given for mailing Èax statements in the office of the Tax Collector of Orange County. d. Relocations of Utilities. Upon termination of this Agreement, the rights of the then owners of the Parcels with ràspect to the easements for ut,ilities under Section 2.21c) shalL be governed by the provisions of Sectlon 2.5, to relocate any utilities serving any other Parcel, provided that such relocation is done at the sole cost and expense of the owner accomplishing such relocation and, provi"ded, further, that such relocation does not, interfere with or increase the cost of the provisÍon of utíLity services to the parcel benefiÈed by such utilities. 2.5 Utí1ity Easements. The Parties shall cooperate with one another and permit installation of any necessary utility and servlce lines, sanítary or storm water drainage sevters, vlater lines, telephone conduits or lines, and all other public utllitiesjointly and mutually to serve the Parcels and Building Areas. Any such utillties shalL not be located under any building located on any Building Àrea, shall be constructed as is reasonably possible so as not to interfere unduly with the overall development and operation of each Parcel by the Parties hereto, and shall otherwise conform to the applicable reguirements of Èhis Article 2. AII such utilltfes shal1 be separately metered or separately assessed for the respective use of the Building Areas located on each Parcel. 2.6 Maintenance of Utilíty Facilities. 4L1 separate utility facllitles lnstalleil by any Party pursuant to the easements granted under this Article 2 designed to serve exclusively the Building o I EXHIBITD-Page8of23 o Area on such Party's Parcel shall be instal-Ied, maintained, repaired and removed by such Party without cost or expense to the other ?arty; provided, however, that if the other Party connecLs into or utillzes such separate utility facilities pursuant to any easement granted under this Article 2 r then each Party shall be responsible for the Ínstallation, maintenance, repair and removal in connection wíth its ut,ilization of such separate utilityfacil-ities. 2.7 fndemnification by Parties. Eact¡ Party shall indemnify, defend and hold the other Party harmless of and from any and allloss, cost, damage, injury or expense (including wÍthout limitation reasonable attorneysr fees) arisíng by reason of injury Èo or death of persons, damage to property or claims of 1len for work or labor performed, materi.als or supplies furnished arising out of or in connection wÍth use by the indemnifying Party of the easements granted hereunder or the exercise by such Party of the rights granted to iÈ in this Agreement. Àny Party may contest any lienór c1aÍm of lien asserted against such Party or its Parcel;provided, however, that such Pãrty shal1 pay arid fully dischargé any such claim of lien within five (5) days after entry of final judgment adverse to such Party in any action to enforce or foreclose the same, v¡hlch judgment shall be deemed final when it can be enforced by execution or judicial sale and no such judgment. shatl be considered final for the purpose hereof during the pendency of a stay of execution Ín connection with an appeal, or durj.ng the time in whích an appeal may be taken. 3. MAINTENANCE 3.1 Building Upkeep and Maintenance. Each Party shallt without cost or expense to the other Party, provide for appropriate upkeep and maintenance for the exterior of their butldings and improvements Located in the Building Area of each Party's Parcel. 3.2 Maintenance of Common Area. Eact¡ party shall, wlthout cost or expense to the other Party, provide for appropriate upkeep and maíntenance for the Common Area located on such party's parcel. The parties! obtÍgations to maintain the Common Area shall include but not be limÍted to the following: a. Paved Areas. MainÈainÍng all paved surfaces and curbs of the Common Area in a smooth and evenly covered cond.ition which malntenance work shall include, without limitation, cleaning, sweepÍng, restripping, repainting, repairing and resurfacíng of the Parki¡rg Area, and curbs, usíng surfacing material of a guality egual or superior to the original surfacing material-. Debris and Refuse. Removal of a1l papers, debris, 9 o b EXHIBIT D - Page 9 of 23 o o filth, refuse, sno\{ and ice, and sweeping the Common Area to theextent necessary to keep the Common Àrea in a first c1ass, clean and orderly condition; provided, however, that each Party shallinstall, operate and properly maintaÍnr or cause to be so instal-Led, operated and maintained, on its Parcel, without cost, or expense to the other Party and so as not to be visible to thegeneral public doing business at the Shopping Center, sufficienttrash compactors, or enclosed or lidded trash bins, for use in connecLÍon with storage or all trash, refuse and waste materialsof the Occupants of such Partyrs Parcel and each Party shall take,or cause to be taken, all necessary measures to keep the ParceLsfree from all debris and rubbish caused by from such faciLities. c. Signals and Markers. Placing, keepÍng in repair, replacíng and repainting any appropriate directional signs, marketrs and lines. cleanÌnfacÍIitlights intended to illuminate the Conmon Area. e. Landscaped Areas. Cleaning and maintaining all landscaped areas, including landscapÍng and planters adjacent to exteríor walls of buildings, repairing autornatic sprÍnkler systems or water lines in the Common Area, weeding, pruníng, fertÍli2ínq and making replacement of shrubs and other landscaping as necesSary. f . Uti"lities. Ivlalntalnírg, cleaning and repalrlng any and all common storm drains, uÈi11ty Iines, se!.¡ers and other utility sysLems and services located in the Common Area which are necessary for the operation of the Common Area and the Building Area, and any buildings and improvements thereín. g. Insurance. The maintenance of the following policies of insurance: (1 ) Insurance against loss or damagre to the aboveg:round portion of the Parking Facility resulting from fire, sarthguake, IightnÍng, vandalism, malicious mischief and suchperils ordinarily defined as "extended coverâge" and such otherperils as Agency and Developer may agree should be insured against, íf such insurance is avallable from reputable insurers. In the event that either party determi-nes that the earthquake portion ofthe insurance reguired 1n thls Section 3.g. (1 ) has become economically unreasonable to obtain, it may reguest relief from the other party for this requirement and the other party shall not unreasonably withhold 1ts permission to modify this sectj-on if iL d. Parking Area Lighting. Operating, keeping in repair,g and replacing when necessary such Common AreA liqhtinqies as may be reasonably requíred, lncluding aII ex€erioi attached to buildings located on Buílding Areas wbich are 10 EXHIBIT D - Page 10 of 23 o o unreasonabl.y wíthhold 5-Ès permission to modify this section if ittoo determines that such a reguirement has become an economícalIy unreasonable burden. Such insurance shall be maintained in an amount not less that the full- insurable value of. the Parking Facility subject to a "deductible clause" in the amount of Ten Thousand Dollars ($10r000.00) and shall contain an lnflation guard endorsement. The term "full insurable value" as used in this Sectj"on shal-1 mean the actual replacement cost "new"; (21 public liabíl-ity insurance agaínst claims for bodily Ínjury or death t ot damage to property occurrÍng upon, in or about the Common Area, such insurance to afford protection toa 1Ímit of not less than Two [tillion Dollars ($2,000,000.00) combj-ned single limit bodily injury and property damage with not greater than Ten Thousand Dollars ($10r000.00) deductj-b1e; ( 3 ) lforker' s compensation lnsurance, J-f applÍcable, inssueð by a responsibLe carrier authorized under the laws of theState of Californía to insure employers against 11ab11-ity forcompensation under the Worker's compensation fnsurance and Safety Act now in force 1n California, or any act hereafter enacted as an amendment or supplement thereto or in tieu thereofr süch worker's compensation insurance to cover all persons employed in connection with the Parking Facílity and to cover ful1 l.íabillty for compensatLon under any such act aforesaid, based upon death or bodily injury claims made by, for or on behalf of any person incurring or suffering Ínjury or death duringr or ln connection wLth the Parking Facillty or the busÍness of the Developer and activities of the Agency wíth respect to the Parking Facility. h. Cityr county, state or federal governmental imposftions pl-aced on or based upon the Common Area or revenues derived therefrom. Notwithstanding the above, Agency shaIl select a guallfied management company for the maíntenance and operation of the Parklng Facility. The Agency shall enter into an agreement with the selected management company and the cost of those common area maintenance charges for the Parking Faciltty as described in (a) through (h), lnclusj"ve, hereinabove together with an a,ilministrative fee equal to fifteen percenL (158) of the common area maintenance charges shal-l be allocated between the Agency and Developer in proportion to the ratio of Commuter parking spaces and spaces used by the Users and Occupants of the Shopping Center- This ratio shall be determlned with regard to the hours of 6:00 4.14. to 6:00p.M. Mondays through Fri-days. The following eguation expresses this ratio: 11 EXHIBIT D - Page 11 oÍ 23 o of Commuter Spaces ) o (1 2 hrs)Agency's portion of CAM charges (# Total CAM charges (Total # af (17 hrs) Spaces ) The number of Cornmuter parking spaces and the number of parkingr spaces allocated to Users and Occupants of the Shopping Center andthe Larsen Parce1 shall be d.etermined in accordance with Section2.1.a. hereinabove. All common area maintenance charges, includ.Íng the adminstrative fee, to be allocated between Agency and Developer shal1 be paÍd wlthln forty flve (45) days after billíng. 4 RESTRICTTONS ON BUIIJDING AREA USE. In the event Agency makes a good faith determination, subjectto revieì{ by Developer, that the Parking Area ís insufficient to meet the demand for parking by users between the hours of 7 p.m.to 6 a.m., Agency wilJ. so notify Developer and Developer shall havesixty (60) days wíthin which to desÍgnate, by vray of notice toAgencyr up to four thousand five hundred (4,500) sguare feet ofBuilding Area wlth the Francl-scan Plaza Project Phases I and II which Ðeveloper agrees will thereafter not be open to the public between the hours of 7 p.m. to 6 a.m. Developer, by way of notlceto Agency, may at any time change the Building Areas so restrictedprovided that at all times at least four thousand five hundred(4,500) square feet of Building Àrea ín the Project shall be sorestricted. 5.RIGHTS ON DEFAUIT. 5.1 Legal Rights on Default. Each Party shall have the ríghtto prosecute any proceedings at law or in equity agalnst the otherParty, or any other person, violating or attemptÍng to violate or defaulting upon any of the provisions contaíned in this Agreement, in order to prevent the vÍolating or attempting to violate or defaulting upon the provisions of thís Agreement and. to recover damages for any such violation or ilefault. The remedj-es available under this Sectfon 5.1 shalI lnclude, by way of íllustratíon but not limitation, ex parte applicatíons and permanent injunctions enjoinÍng any such violation or attempted violatlon or default¡ and actions for specific performance of the Agreement. 6. ESTOPPEL CERITIFICATE. Àny Party Íìây, at any time and from time to time, in connection with the sale or transfer of the Partyrs Parcel, or in connection wiÈh the financlng or refinancíng: of the Party's Parcet by mortgage, deed of trust or sale leaseback made in good faith and for vaIue, deliver written notlce to the othéï Party requesting such Party to certify in wrÍting that to the best knowledge of the certifying Party, the requestÍng Party ís not 12 EXHIBIT D - Page 12 of 23 o¡ in default 1n the performance of its obligations under this Agreement, orr any and all default.s. The Party receiving such request shall execute and return such certifieate within thirty(30) days following the receLpt thereof. Failure by a Party so to execute and return such certificate within the specified períod shall be deemed an admission on such Partyrs part, that the Party reguesti"ng the certÍficate is current and not in this Agreement. The parties acknowledge that such certificate may be relied upon by transferees, mortgagiees, deed of trust beneficiaries and leaseback l-essors. 7. TRANSFERS OF TNTEREST, RIGHTS, POWERS AND OBLIGATIONS. 7.1 Límitations on Parties. In no event. shall- the rlghts, powers and oblÍgatíons conferred upon the Parties hereto pursuant to thls Agreement be at any time transferred or assigned by any ofsuch Parties except througrh a transfer of their respectiveinterests in their respective Parcels or except as speciffcally setforth to the contrary in this Subsectl-on 7.1, and then only to theextent and in the mahner hereinafter provided; a. Rights of Larsen. Subject to Developer's obli-gations as contained in the Developer/Larsen Agrreement, the Occupants and Users of the Ï¡arsen Parcel (as defined above) shall have the right to use, without any charge or fee, during the daytime from 8:00 A.M. to 7:00 P.M.r the following number of parking spaces: (i.) The number of parking spaces required by the City of San Juan Capistrano for the buÍlding located this d.ate on the Larsen Parcel based upon its current sguare footage; and (ii.) Such additional parking spaces as may be needed for up to, but not to exceedr âr additíonal Sj-x Thousand (6r000) sguare feet addi-tion to the buílding on the Larsen Parcel, provided such additlonal sguare fooLage is for retail or office type of tenants and does not reguire more than one (1 ) parking space per 250 sguare feet of tenant space or a maximum of twenty- four (241 parking spacês. Notwithstanding, Larsen is not a Party (as defined hereinabove) to this Agrreement and Larsen shall have no rights, interests or liabilíties un,iler this Agreement except the parking right,s conferred in this Subsection a. b. Transfer of Entire Interest. In the event of the transfer, conveyance or termination of the whole of the interest of the party in its Parcel (or any leasehold interest in a Parcel) ,..without ret,aÍning any beneficial interest therein other than as a beneficiary under the terms of a deed of trust or mortgage or 13 EXHIBIT D - Page 13 of 23 oo without simultaneously acguiring a leasehold, life estater oE any other rights and po\{ers conferred. upon and Agreement of the transferring Party assigned with its interest. new Ínterest by way of similar Ínterest, than the the oblígations under thísshall- be transferred and c. Retention of Interest. In the event that (í) the r¡hole of the interest of any party Ln its Parce1 Is transferred or conveyed. but a new interest j.s created ln the transferring Party simullaneously with the conveyance of lts previous interest, by way of leasehold, Iife estate, ôr any other similar interest ¡ oÍ (ii¡ the transferring Party shall convey its interest in its ParceI, or a portion thereof, bY deed of trust, mortgage or other securj.ty inãtrument as security for the obligation or indebteilness of such Party, then none of the rights and powers conferred upon or oblígations under this Agreement of the transferrlng Party shall be tiansferred or assigned with the transfer or conveyance of its ínterest, but aII of the rights and povters conferred upon alg oblic¡atiòns under this Agreement of the transferri.ng Party shellremain j-n such Party as- long aS such Party retains, under (i) above, the ne$I interest, 1n and to its Parcel (other than aS beneflciary under the terms of a deed or trust or mortgrage)' or so long as suètr ParÈy remains under (ii) above, the beneficíal owner of its parcel. Úpon the terminatj-on of the new Ínterest created in the transferrlng Party as specJ-fled in thts Subsectiorr c. ¡ the rÍghts and powers Conferied upon, or the obllgations of such Party snãft vest in accordance with Subsection b. or d. hereof, whichever is applicable, as if the new interest created in such Party had r.evei-existed, subject only to the provLsions of Article 11 of this Agreement. d. MultÍple Ownership. In the event that any Party shall transfer or convey lts ínterest in its Parcel, or any portion of its parcel or interesÈ in its Parcel, in such manner as to vest ownership of the Parcel or interest thereín in more than one personr Èten the persons owníng all of such lnterest in such Parcel åft"tt be jointly consldered a slngle Party and such persons involved iñ tfre transaction creaÈÍng the multiple Lnterest shall designate one of their number to act on behalf of all such Persons in tñe performance of the provísions of this Àgreement. Any such deslgnatlon shall be in writing¡ duly executed, verified and acknówledged by eaeh such person, shal-I be served upon the other party in ãccorãance with the notice provision of this Agreement' shal-1 contain a certificate that a copy thereof has been so served, and shall'be recorded in the Offíce of the Recorder of the County of Orangre. In the absence of such wrj.tten designationr the acts of the Þarty whose interest is so divlded with respect to the performance of the provisions of this Ag'reement shall be binding¡ üpo.t all of the persons owning any interest in such Party's Parcel, 14 EXHIBIT D - Page 14 of 23 o o unLil such time as the written designatj-on is properly served and recorded as provided . by this Subsection d. The exercise or performance of any rights, powers or obllgations of a Party under this Agreement by the person designated to represent such Party shall be binding upon all persons having an interest or right ln such parcel and/or upon all persons having an interest in suchparty. So long as such designation remains Ln effect, a}l persons havi"ng an lnterest or rlght in the Parce1 andJor all persons having an interest j-n such Party shaIl act only through such persons designated hereunder and the other Parties shall have the right to deal exclusively with and rely solely upon the act or omissions of such person in the performance or provision of this Àgreement. Any person designated hereunder may be removed by the persons So designatÍng, Ín accordance with any procedure agreed to between them, provided that written notlce of such removal and designation of. a new person to act as the Party on behalf of all st¡ch persons under thís Agreement is given and made in the manner specifÍed in this Subsection d., and in absence of any such written notice and desiqnation, the previous designation shall continue in effect andtf¡e ácts of-the þerson previously designated with respect to the performance of the provisions of this Agreement sha1l be binding upon all such persons untÍI such tirne as the written notice and designatlon is properly served as provlded by this Subsectíon d, Any person desÍgnated pursuant to the provÍ-sions of this Subsection d., shall be the agent of each of its príncipals, hereby irevocably appointe,il for such purpose¡ upon whom service of any process, Writ, summons, order or other mandate of any nature of any óourt in any action, suit or proceedíng arising out of this Agreement may made, and service upon such designated person shall cınstltute due and proper service of any such matters is also mailed to such principals at the principals' last addresses known to the sender. Notwithstandíng anything to the contrary herein contained, the designation of a person to act on behalf of persons as a Party under thís Subsection d. shall not for any purpose relleve any such persons from the obligations or liabilities created by or arising from this Agreement. B. REIJEASE UPON SALE OF TNTEREST' 8.1 SaIe by any Party. Upon the sale or transfer by anyparty of its entLre right, title and interest in j-ts Parcel' that party sha1l be released. from the obligatlons of thls Agreement (othãr than those obllgatíons arising from any default by suchparty in the performance of any provisj-on of this Agreement príor to such sale or transfer, Íncluding palrment of any amounts which may then be due and owing under this agreement); provided that such farty shall have given notlce to the other Party of sa1e, transfer, conveyance or assignment of all of Íts right, title and interest- in its parcel concurrently with the filing for record of the 15 EXHIBIT D - Page 15 of 23 oo 9, EFFECT ON BREACTI UPON PURCHASERS AND MORTGÀGEES. 9.1 No Termination. The breach of thís Àg'reement shall not eliminate any Party or person to cancel, rescind or otherwíse termÍnate its obligations hereunder. 9.2 l"lortgagee Protection, This Agreement, and the right,s,privíleges, covenants, agreements and easements hereunder with respect to each Party and Parcel, shall be superior and senlor to any lien placed upon any Parcel, including the lien of any mortgage or deed of trust. Notwithstanding the foregoing, no breach hereofshaIl defeat, render invalid, diminlsh or J-mpair the lien of any mortgage or deed of trust made ln good faith and for valuer but the covenants and restrictionsr €âsêRents and conditions herein contained shall be binding upon and effective agaínst any ownêr(tncluding any mortgagee or beneficiary under a deed of trust) of any Parcel, or any portion thereof, who acguires titte thereto by foreclosure, trusteer s sale, deed in lj.eu of foreclosure or otherwise. 1 0. COVENANTS .AÌ.rD RECORDATION. 10.1 Covenants Run wÍth t,he Land. All of the applicableprovÍsions, agreements, rights, por,{ers¡' covenants, conditions and obligations contained in this Agreement shall be binding upon and insure to the benef it of the Part,Íes hereto, t,heir respectlve heirs, successors (by merger, consolidation or otherwise) and assigns, devisees, administrators, representatives, lessees and al1 other persons acquiringr any Parcel t at any part thereof of any interest therein whether by operation of law or ín any manner whaÈsoever, unless and unÈi} modified as hereín provided. À11 of the provisions of this Agreement shall be covenants runnlng wtth the land pursuant to the applicable Iaw, including but not limited to Secti-on 1 468 of the Cfvil Code of the State of Callfornia. It is expressly acknowledged that, each covenant to do refrain from doing some act on each Parcel hereunder (i) 1s for the beneflt of eaeh other Parcel and Ís a burden upon each other Parcel, (tí) runs wíth each Parcel and (ffl) shalL benefit or be binding upon each successive owner during its ownership of eaçh Parcelr oË any portÍon thereof¡ ênd each person havíng any interest thereln derived in any manner through any owner of any Parcelr oI any portlon thereof. 1 1 . RECORDATION. This Agreement shall become effective and bindíng upon the Parties and their respective successors in interest in accordance witb the provisions of thÍs Article 1 0 upon recordation of thls Agreement in the offlce of the County Recorder of Orange County 16 EXHIBIT D - Page 16 of 23 o o 12. MISCELLANEOUS. 12.1 Negatlon of Partnership. None of the Èerms orprovisions of this Agreernent shall be deemed to create apartnershlp between or among the Parties in their respective businesses or otherwise, nor shall it cause them to be consideredjoint venturers or members of any joj-nt enterprise. 12.2 Termfnatj-on and Amendment. Except as otherwlsespecified in thts Ag'reement, this Àgreement may be cancelled, changed, nodÍfied or amended in whole or in part only by wrítten and record.ed instrument executed by all of the Parties hereto and by all of the record ov¡ners of all of each Parce1 in the event that any of such record owners are not then Parties hereto. Notwithstanding any other provisions of this Agreement to thecontrary, all the provisions hereof shall terminate upon the 55th anniversary date of the recordatlon hereof. 12.3 Approvals. Unless otherwise hereÍn provided, wheneverapproval or "ðonsent ís required of any Partyf it shalI not be unreasonably withheld. Unless provision is made for a specifj-c time period, approval or consent shalL be deemed given in nlnety(90) days of the receipt of the written reguest for approval or consent, and if a Party shall neither approve nor disapprove within such nS.nety ( 9O ¡ day period r of, other tÍme period as may be speclfied Ín this Agreement for approval or consentr that Party shalL then be deemed to have given its approval or consent. Tf a Party shall disapprove, the reasons therefor shall be st.ated in reasonable detail in wrlting. The consent or approval by a party to or of any act or reguest by any other Party shall not be deemed to waive or render unnecessary consent or approval to or any sl-mllar or subsequent acts or reguests. 12.4 Public Dedlcation. Developer and Agency eovenant that the Parking Fací1,ity shall be dedicated to public purposes provided, however, that "public purposes" shall be defined as "open and available to the public on an egual basis". All parking' except for parkíng by Users and Occupants, shalI be paid for by the users of the Parking Facilj-ty. In the event, howeverr that neither the Agency nor its successors in ínterest hold any interest (either leasehold or fee) in the Parking Facilityr all paid parking proceeds shall belong to Developer. Nothing herein contained shall be deemed to be a gift or dedicatLon of any portion of the Shopping Centerr or of any other parcelr of portion thereof, to the general public, for the general public or for any public use or purpose whatsoever, it being the intention and understanding of the Parties that thls Agreement' shall be strictly limíted to and for the purposes hereln expressed and that, 17 EXHIBIT D - Page 17 of 23 oo 3 I å : ;:i i' :å "tîiË ?å' "1" î,?ik fJ î?"î " ;.1, th e Ë a r k i n s F a c i I i t v' i s 12.5 Excusable Delays. Whenever performance is reguired of any Party hereunder, that Parly shall use all due diligence to perform and take all necessary measures in good faiÈh to perform; provided, hor,rever, that if delays are caused by civil commotion,riots, strlkes, plcketing, or other labor disputes, unavailabil-ityof labor or materials or damag'e to work in progress by reason of fíre or other casualty or cause beyond the reasonable control of a Party (financlal ínability, ímprud.ent management or negllgence ¿¡qepted) ¡ then the time for performance as hereLn specified sha1l be appropriately extended by the amount of delay. 12.6 Severability. Invalidation of any of the prov5-sions contained in this Agreement, or of the application thereof to anyperson by judgment or court order shall in no way affect any of theóther provisions hereof or the application thereof to any other person and the same shall remain in fuIl force'and effect, unless enforcement of this Aqreement as so invalidated would be unreasonable or grossly ineguitable under all the circumstances or would frustrate the purposes of this Agreement. 12.1 Notices. Any notlce to any Party shall be in writing and given by deLiverlng the same to such narty 1n person or by sending the same by registered or certified maiI, return receÍpt requested, with postage prepaid to the Partyrs mailing address. The respective mailing add.resses of the Parties hereto are, until changed as herelnafter provided, the following: Agency:SAN JUAN CAPISTRiINO CO¡4Ì"IUNITY REDEVELOPMENT AGENCY 32400 Paseo Adelanto San .Juan Capi-strano, CA 92675Attenti-on: Executive Dírector and, in the event of a claj-m against the Agency, with a copy to: SAN JUAN CAPISTRANO COIvIMUNITY REDEVELOPMENT AGENCY 32400 Paseo Adelanto San Juan Capi-strano, CA 92675Attentj-on: Agency Secretary Developer:Franciscan Plaza Investment Group 31 831 Camino Caplstrano San Juan Capistrano, CA 92675 Altentíon: PauI Farber 18 EXHIBIT D - Page 18 of 23 o 12.8 Chang'e of Address. Any Party may change its maillng address at any time by giving written notice of such change to the other Party in the manner provided herein at least Ëen (10) dayspríor to the date such change is effected. All notices under this ÄgreemenÈ shall be deemed given, received, made or communicated on the date personal delivery is effected orr if rnailedr oll the delivery date or attempted delivery date shown on the return receípt. 12.9 Entire Agreenent. This wrltten Agreement contains all Èhe representations and the entire agreement between the Parties hereto wtth respect to the subJect matter hereof. Any prior correspondence, memoranda or agreêment,s are superseded in total by this Àgreement. The provisions of this Agreement shall be construed as a whole according to their common meaning and not strictly for or against any Party. 12.10 Captl-ons. The captions precedíng the text ofArtlcle, Section and Subsection hereof are included, only convenience of reference and shall be disregard,ed j-n construction and interpretation of this Àgreement. o eachfor the 12.'l'1 References. ALl references herein to a given Article, Section or Subsection refer to the Article, Sectj-on or Subsection of this Agreement. 12.12 Mínimlzation of Damages. In all situations arising out of this Agreement, all Parties shall attempt to avoÍd and minimize the damages resulting from the conduct of any other ParLy. Each Party sha1l take all necessary measurês to effectuate the provísions of this Agreement. 12.13 Litigatíon Expenses. If any Party shall bring an action against the other Party by reason of the breach or alleged viol-ation of any covenant, term or obligation hereofr of for the enforcement of any provislon hereof or otherwise arísing out of this Agreement, the prevailing Party in such suit shall be entitled to its costs of suit and reasonable attorneys' fees, which shall be payable whether or not such action is prosecuted to judgment. "prevall1ng Party" wJ-thin the meaning of this Sectl-on 12.13 shall include, without limitation, a Party who dísmisses an actÍon for recovery hereunder in exchange for payment of the sums allegedly due, performance of covenants allegedly breached or consideration substantially egual to the relief sought in the action. 19 EXHIBIT D - Page 19 of 23 oo 12.14 Signature Pages. For convenience, the signatures ofeach of the PartÍes to this Agreement may be executed and acknowledged on separate pages whích when attached to this Agreement shall constitute this as one complete Agreement. 12.15 Time. Time is of the essence of this Agreement and each and every provision hereof. IN !{ITNESS WHEREOF, the Parties hereto have executed and acknowledged this Agreement as of the day and year first abovewritten. Deeemher -5- lqRq 9 SAN JUAN CAPISTRAT{O COM¡4UNITY RE AGENCY By h E. Fries rman "AGENcY" ATTEST: Sec APPROVED AS TO FORM: Stradli-ng, Yodca, Carlson & Rautht Specíal Counsel to the Agency Agency Counsel FRANCIS INVESTMENT GROUP ttDeveloper" By PauI Farber, General Partner 20 1 EXHIBIT D - Page 20 of 23 on this the /L-day ot &, ," ,, ' ß-tfløeture @ EILEEII FEGTE' ¡¡orP,i,-i þuet-, -: - cAlll- oRNIA ..;1;;:\Îå,9,0IË h' I s, r.el OFFICI¡\L SEA L My State of 0rangeCounty of Notary' me, s.). ure C¡liforni A e Chairman named, and acknowledged to me that the corporation executed it WITNESS my hand and official seal. factory evidence within ¡nstrument aq " " o" i "' i" t i i ¿tUtbàç¿ìfe^lt h ere i n D personally known to me n proved to me on the basis of satis to be the personþ) who executed lhe the undersigned Notary Public, personally appeared Kenneth E. Friess before me, the undersigned, a Notary Publ¡c in and for said State, pers0nally appeared ;:,i'iilll:Ï#'iil: within instrumenl on behall ol the Lj^uil-ed- Partnership named therein, and acknow- ledged lo me that the linited Parlnership execuled il, Notary Public in and said State ),, r,ø-* \ W9 7t Pnrr I Fn ACKNoWLEDGMENI-Gon6rål or Lrm¡tod Parlnersh¡p-r¿lolcotls Form 236C4 ßov. 5'82 (et98Z W0LCOTÌS, tNC. (Þric¡d¡sr t-21 WIINESS my hand and ollicial se¿l 0n this STATE OF CALIFORNIA COUNÏY OF 0range in the year 19-, OFFIC1AL SEAL tll F::¡.! FEGTE' NOTAIì'/ PUSLIî . CALIFORNIA 0iù\::tí: couNTY My ccmm. cxpires APR 15, I99l day of on this the / 9 day ot /9¿ o', - 1 ßW,berore me, n personally known lo me E proved to me on the basis ot sat¡sfactory evidence to be the personüQ) who executed the within instrument as , Deputy Agency Secre or on behatf ot trel8)èåTttïSrïtLere¡n named, and acknowledged to me that lhe corporation executed it. CaliforniaState of OranseCounty of Chervl A. Johnson -J jJ.-+>1-__ gnature ss. Æ,SNw N e the undersigned Notary Public, personally appeared WITNESS my official seal. OFFICIAT., SBAL EIf E¡I,I FIGTE' fvOTÅiIf PI'3LJJ . CALIFORN¡A 0:ì.^,':^f: c0u,NtY lJy cor:r.'r. e¡,,iret AFR I5, tî3I CORPORATE ACKNOVI/LEDGMENT 7120 122 CORPORATE ACKNOWLEDGMENT ¡¡o. z'oz NATIONALNOTARYASSOCIATION o 23O'l2VenturaBlvd. . Po.Box4625 o WoodlandHillqCA 91365'4625 NO. 202 7120 122 NATIONAL NOTARYASSOCIATION . 2301 2 cA 91365.4625 jt,lL| -..-trlærrao arxal¡tta¡Ot¡rttF ?¡¡llt*lltaIt¡¡l¡l¡rla orgltr-¡.lLtri¡¡tlltlxcfø-l'ì¡rfr6ß:1PRËUlrrNARY SITE DEVELOPi¡CNT At'Ð VICIMTY PLANoITt¡T¡fo-ItIaaE l¡ ñçr¡lntr¡1..4tuß¡#¡cu¡t^ßl3rtt r'{if-jfaEtrr¡(Rr¡rtrN'IE3Ë-aÉrlÉÉ*-srtE ||*arl*Éa¡¡¡*¿ñ.E'fÉ-t¡ - ¡i-lalinrp---¡L*a.¡¡ aat-tl a tüa,¡.tr lt()ooooooo_o'Ðoeoo@o¡lrr¡ baE. rytlE¡IÞTbU¡-5¡¡EratÞeo--uúúr-tôFa.ôr.ÞôôôA*'ìt¡.fTEå?:}'JUE !ti"g¡rr.:É¡-rtt-r"tGl*a¡raaÀ[5- C-tCozÉ¡- f{l9âÈ<ÚEzãfX*4.zv,ð¡¡a ¡t.uaËätïEnã;;t-\(tôtoC\¡NoC')ofLIoFdl-xuJt+ozÉ+'7l¡¡ã()E{ts ÞÞ.¡HÞc)trlzÉz.ol.)mx-ul=gIT]0)(ooN)(,oN)(¡)t.a-¡fl.t rÞaINVld ^rNþlA ol.¡tÚ 1N:ll,Iæ13^30 3rF ^HVNmnSUdL('ioIi?r¡l i'¡¿f¡ñ!nt¡ratr¡¡l l¡lr¿!tþ ilan3-taffi7þr-\----.. ..,û:,.t\It¡¡¡IttËil¿ t¡¡lrrtÕr.¡nolHtl¡ár¡tOT¡¡I¡'¡t¡rll¡ oilttrtIt----'-t\ f l'-_- ll'lÍrtl|l líl¡¡nsaaËr¡il4ird,¡-ll¡rtm4,rFtrtr€rûlfltlrlÐÐlú l¡¡ lDr¡ll ä.Ltatt¡rdË-{ÊEÉ-È¡--gil-ú.iæ--ú*H-ñ br a-la l aa'aa r t¡'taa q'aal Ít.t ¡'aaa aaraa -'lBeratE'Ê F--æır¡tnFfrãt¡aa-¡tñ-É-dla---EtFtE--.É.-'!*,ãil.ÉrlæñrGrlooooootÐaoooooôootef,tl¡ta|¡n::¡¡dtI?gEH¡¡llraaaIvvv.rf"¡9|.å9Ga4'ÐU,zlt ,-{ãÐ3-Ðs>rurrıllt -l:ozo'Ç ¡ta'¡È^a tartatÍirtlIIIItg$¡c o Recording Requested by: City of San ,Juan Capistrano Recording fees exempt due to Govt Code 6103 Documentary Transfer Tax - No Consideration o And when recorded. please mail to: Margaret M, Monahan,Cit.y Clerk City of San Juan Capistrano City Clerk's Department 32400 Paseo Adelanto San 'Juan Capistrano, CA 926'1 5 Cit,y of San Juan CaPistrano First .ånendmenÇ to .foint Parkíng ç.$d MainÈgnanee ågreenent +I¡d Decþratigg of Cqvenants- Runnif¡g with t.h.g-Land. This First Amendment to Joint Parking and Maintenance Agreement and Declaration of Covenants Running with the Land. ("First Amendment") is entered into as of this ?th day of May, 2002, by and between the San Juan Capistrano Community DeveJ-opment Agency (tne "Agency") and Busk Development, Inc. (hereinafter referred to as "Owner"). Recital.s Túrereas, the Joint Parking and Maintenance Agreement and Declaration of Covenants Running with the Land r.ras executed by the Agency and Francj-scan PIaza Investment Group, the oríginaI developer of the Franciscan Plaza project, on December 5, l-989;and, lftrereas, the current "ov¡ner" and Agency desire to amend certain provisions of the Joint Parking and l,laintenance Agreement and DecLaration of Covenants Running with the Land. Now, therefore, the Agency and Owner agree to amend Parking and Maintenance Agreement and Declaration of Running with the Land as follows: the Joint Covenants Secti r>n 1.On page 3, Sectlon 2, entítled, "Grant of Reciprocal Easements". Subsection (a. ), entitled, "ParkLng", the sixth sentence that reads: "Notwithstanding, (1) in no event shall the numbers of commuter spaces be l-ess than L3!...'. Shall be amended to read,: "Notwithstanding (f) in'no event shaIl the number of Commuter spaces be less than seventy-three (73) ..." - Se.gtion 2. Except to the extent that the Joint Parking and Maintenance Agreement and Declaration of Covenants Running with the 1- EXHIBIT E - Page 1 of 2 oo Irand are modified by the First Amendment each and every provision of the Joint Parking and Maintenance Agreement remains in fuII force and effect and survives this Amendment. The Joint Parking and Maintenance Agreement is incorporated herein and by this reference. If any ambiguity exj-sts between this First Amendment and the Joint Parking and Maintenance Agreement, this FirsE Amendment shall control. In Witnoss lftrereof, the parties have executed this Flrst Amendment as of the day and year above written. APPr as to Form:Own John S hr, Agency Council l-maBusk @ 3¿¿*-¿-t-¿-æ-tt ;Ê/aAgency:Attest: Margaret M. Monahan, Aqency Secretary Collene CampbeII, Chairperson 2 EXHIBITE-Page2of2 cr0 [,4ZsB93a;.: a Recordir -'Fees Section -C-. No Consider ty Exenpt, Ih¡e to Gov t't Code F:ìcurentaly Trcrsfer Tax - .c )Recording Requested BY and lrlhen Recorded Mail To: San Juan Capistrano CornmunitY Redevelopment AgencyAttention: CltY Cl'erk 32400 Paseo Adelanto San Juan Capistranor CA 92675 RECORDED IN OFFICIALRECORDS ijF on¡Hae couNTV, cAuFoRNlA f;fi: AuG 14 lseo ^tn a.ør.t"lRæoRDER ) ) ) ) ) ) ) ) SÞace above for Recorder's use only r'Elsg ./ THrs I-,EÀSE ÀcREE[tlENT is dated as of 4'ç 'f ,by and between FRANCISCAN PIIAZA II{VEST!{ENT GROIIPT a Ca1if limited partnership (the "Lessor") and the SÀN JUAN CAPIS COMMUNIIY REDEVEIJOPMENT AGENCY, a public body, corporatepolitic (the "tessee"). 1990 ornia TRÀI{O and WITNESSETH: ) That for and in conslderation and agreements herein conÈainedr' the pa follows: the mutual promisesies hereto agree as ofrt sEcTIoN 1: Þe.Ei-&ilisss,. Un1ess the context otherwise requires, the terms defÍned inthis Sectíon 1 shal1, f,ot all purposes of this Lease, have the meanings hereÍn specified Agreement "Àgreement" ¡ûeans that owner participation agreement entered Ínto between .the Lessor and the Lessee for the disposition and development of, various property (including without limitation that property describeô in Exhibit A to this Lease), dated December 15, 1987, together with, and as arnended by the First Àmendment to the owner participation agreement dated October 17, 1989. À copy of said Agreement, which is onfile with the Lessee at. its offices, is incorporated herein by reference. Base Rent "Base Rent" means that rent due for the Project as defined in Section 4(a) of this Lease. ' EXHIBIT F - Page 1 of 20 .t ì . Cltw ,,City,, means the Clty: of San iluan CapiStranO, a munícipal corporation. Iresseç or.-Agency ,'Lessee,, or ,,Agency,' means the san Juan capistrano Communi[y Redevefoımen-t Agencyr a public body, corporate and politic. Lessor or P.Articipant s . 'Iressor" or 'participant" means Franciscan Plaza fnvestment eroupl-ã-Cãfifornia Llmtted partnershiP:, the L,essee sha1l be ènti[iecf to make pa¡rment to Franciscan Plaza Investment Group, trñiãft payment st¡ait-dlscharge its obligations for payment träiã""å"i to the tessor. FiancÍscan P1aza Investment Group ãtrãir U" ffaUiã-äña responsible for all of the undertakings, Auiies and covenants of-the Lessor set forth in this Lease or arising therefrom. PubIlc fmprcjve¡nents "public Improvements" means those improvements so described in the Agreement. P.arking FacilitY "Parking Facility' ineans the structure to be completed on the Site as depicÈed on Attachment No. I to the Àgreenent. Redeve.loPment Plan "Redevelopment PIan" means the Redevelopment Plan which was approved, adoéted and amended-by the City Council of-the City oi-Satr Juan CápisÈrano by Ordinance Nos. 509 ' 547 and 582. Rental Period ,,Rental Period" means the periocl rvith respect to which Rent is payabLe pursuant to Section 4(a) of this Lease. Site 'site" means that real property so described in the Agreement and the "Legal Description of.the Site" which is jÉtacnea hereto marked Exhibit rrÀr' and incorporated herein by reference. 04/02/90 8599n/2299/30 -2- EXHIBITF-Page2of20 ...fh:. j \ lerm "Term' means thd períod of fifty-five (55) years. SECAIIPN 2: Demised Premises, Ownership. the L,essor hereby leases the Parking Facility, when the same is constructed according to the Agreement, to the Lessee, subject to tbe terms and conðltions of this Lease. SECTTON 3: Iern. The Term of this Lease s[rall commence on the date of issuance of, the Certificate of Co¡npletlon for the ParklngFacility. This l¿ease shall terminate at the end of the Term.Thls tease, and any provisions hereof, shall not be extendedwíthout the e:<press written approval of the Lessee which approval the Lessee may grant, withhold, or deny at lts sole and absolute discretion. ÊqcIToN .l: Benl, Tbe Lessee shall pay rent to the Lessor Ín the amounts, atthe times and in the manner set f,ortb herein, said amountsconstituÈfng in the aggregate the total of the annual rentspayable under this Lease as follows¡ (a) 8e¡É. For each of, the Beriods (the 'RentalPeriods")'commencing sir (6) months f,rom the date the Cityallows the occupancy of the Parking Faciltty through theissuance of the Certificate of Occupancy or a TemporaryCertificaÈe of, Occupancy on the Parking Facility Ín conformitywith the Agreement and continuing according to the schedulebelow for the first six (6) Rental Periods and thereafter on anannual basis, the Iressee agrees to pay to the Lessor as the Base Rent the sum of One Do1lar ($1.00). The Certíficate of Occupancy or Temporary Certíficate of Occupancy shall not bewithheld due solely to a delay in the participant,sinstallation of the equipment necessary for commuter parking.In addition to the Base P.ent, the Lessee agrees to pay to theLessor Supplemental Rent for the first three (3) Rentat periods according to the following table: Renial .Period Ending fn Month 6 18 35 Anount of SutlpleÍlental Rent $312,540 28L,27L 250,024 I 2 3 04/02/90 8599n/2299/30 -2- EXHIBITF-Page3o120 I Àt the end of the third operating year after the dlate of lssuance of the certiflcate of completíon for the earking Facility, the Lessee and Lessor shaLl review the actual performãnce to determine the third year net cash flow after ãebt service and before distribution to the- Participant as a percentage of equity. In making this ealculatÍon, equity shall be the difference betyteen the construction lender(s)' or permanent lender(s) determínation of project value for the þurposes of making the construction loan and the amount of thefoan. Using this percentage the Lessee shall pay an additional amount of Supplemental Rent for Rental PerioÖs 41 5 and 6, ending' in months 48, 60 arLA 72 resPectively, based on the following table: ù Cash Flow as* of Eouitv less than 0t Additional Amount of Supplemental Rent 275,000 200 r 000 175,000 150,000 125,000 -0- t.0t0t3. L7t 0t to 4.04.0t to I8.0t to 113.0t to more than .0t 7.026 (b) Payment. Pa¡rments of Rent shall be made in lawfu1 money of, the United States of Àmerica, by warrant or check drawn agaÍnst funds of the Lessee. (c) Considerqfion. the payments of Base Rent and, if applicable, Supplernental Rentr.hereunder for each Rental Periodfor the term of this Lease, shall constitute the total rentalfor said Rental Period and shall be paid by the tessee ab the conclusion of said Rental Period. fn addition to the rental, the parties agree as specified in the Agreement that Parking Revenue generated from commuter or other paid parking sbalL bedivided between the Particípant and the Agency. SEÇTION 5: Cp.pstructíon of .Project, Maintenar-rg.e_andOoeration. ¡ No duties, other Ehan those set out in the Àgreement, withrespect Eo the construction of any improvements ın the Slte orthe maintenance of the Site or any improvements thereon, or toproviile Ínsurance or indemnities with respect to the use of theSite shall be deemed to be imposed upon the Lessee by virtue ofthis 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 ("CÀDl.') charges shall be allocated between the Agency and theParticipant in proportion to a ratÍo which considers the numberof commuter parking spaces and commuter hours and days ofoperation compared to the total operational use of the 04/02/90 8599n/2299/30 -4- EXHIBITF-Page4of20 ì.... I structute. Speciflcally the Agency portion of monthly CÀl'lf charges ¡nay bé determinèa Uy utilizing the followíng formula: Agency's portionof CAIvf charqes (# of .. Commuter (# of t^iorking Totat CAI'! charges (Total # of, t¿l nru) (# of days inspaces) -,4 U4<. month) SECTfON 6 3 lrse. During the term of, thís Lease, subject to obtaining consent by lenders of record with'encumbrat¡ces senior to the Agency,'srights pursuant to thls Lease and subject to the terms of the maintenance a.nd operation agreement as described in Section 5of this Lease, the tessee shall have the right to use the Site, and to assign its rights hereon or enter Ínto a sublease to anypublic or nonprofÍt entity as it deems appropriate, Ín its solediscretion. Both partÍes acknowledge that the Parking Faci.Lityis burdened with a covenant which shatl run with the land toprovide for public use of the facility as defined in the Agreement. The proportion of commuter and commercial parking shall be as specified in 5501 of the Agreement. SECTION, 7: Insuranee. Throughout the Term, the Lessor shall maintain or cause to be maintained at its cost the following policíes of insurance: (I) insurance against loss or damage to the aboveground portion of the Facilities resulting from fire, earthquake, lightning, vandalism, malicious mischief and suchperils ordinarily defined as "extended coverage" and such otherperils as the Lessor and the Lessee may agree shoutd be insuredagainst, íf such insurance is avaílab1e from reputableinsurers. fn the event that Lessor determines that the earthquake portion of the insurance required ín this Section 7 has become economically unreasonable to obtain, it may requestrelief from the Àgency for this requirement and the Agencyshal] not unreasonably wÍthhold its permÍssion to modify thissection if it determines in Íts sole discretion that such a requirement has become an econo¡nically unreasonable burden. Such insurance shall be maintained in an amount not less thanthe full insurable value of the Facilities subject to a' "deductible clause" in the amount of Ten Thoirsand Dollars($10,000.00) and shall contain an ínflation guard endorsement. The term "full insurable value" as used in this SectÍon shall mean the actual replacement cost 'neeù"; (2) public liability insurance againsË claims forbodily injury or deathr oÍ damage to property occurrÍng upon,in or about the Project, such insurance to afford protection to 04/02/90 8599n/2299/30: Soa asl (t2 h rs'\ ¡l avs i n m¡rnth I /-7oi - /') þ (L -5- EXHIBITF-Page5of20 a ltmit of not less than Two Million Dollars ($2,000,000) combíned single llmit boclily injury and property damage withnot greater than Ten Thousand Dollars ($t0,000) decluctible; (3) worker's compensatíon i.nsurance, if applícable, lssued by a responsib'Le carrier authorized under the laws ofthe State of Calífornia to insure employers against liabilityfor compensation under the Worker's Compensation Insurance a.ndSafety Àet now in force ån Californiar or any act hereafter enacted as an amendmgnt or supplement thereto or in lieuthereof, such worker's compensation insurance to cover allpersons employed in connection with the Parking Facility and toòover full liability for cömpensation under any such acLaforesaid, based upon death or bodlly inJury claÍms made by,for or on behalG, of, any person incurring or suffering injury or death during or ln connection wíth the Parking Facility or the business of the Lessor and activities of the Lessee rvithrespect to the Parking Facility. All insurance hereín provided for shall be effected underpolicies issued by insurers of recognized responsibility,licensed or admitted to do business in the State ofCalifornla. À11 policies or certificaÈes shatl name theLessee, the City and the lressor as named insureds, and shall <-include waivers of subrogation. All policies or certificates issued by the respectiveinsurers for insurance shaII provide that such policies orcertifi'cates shalL not be cancelled or materially changedwithout at least 30 dlays' prior written notice to the Lessee, and shall carry loss payable endorsements in favor of theÍ.essee where applicable. certified copies of such policies (orother evfdence of coverage reasonabLy satisfactory to theLessee) shall be depositecl with the Lessee, together withappropriate evidence of payment of the premiums therefori and,at least 10 days prior to the expiration dates of expiringpolícies or certificates, certified copies of renewal or newpoLicíes or certifícates (or other evídence of coveragereasonabry satisfactory to the Lessee) sharr be deposited withthe Lessee. rn the event the Lessor faÍls to maintain the insurancereguired to be maintained hereunder, the Lessee following ten(10) days'written notice to Lessor shall have the right toprocure and maintain such insurance and deduct such cost fromthe Rent otherwise payabre pursuanÈ to section 4 of this Lease;provided that iwithín ten (I0) to the Lessee awith interest a from the erpira f. all such Rent has been paid, the L,essor shall,days of receipt of notice by the tessee, refund11 such costs incurred by the Lessee, togethert the maximum rate allowable by 1aw accruingtion of the aforesaid ten (IO)-day notice pãrioduntil the Lessee has been fully reimbursed with interest. 04/02/90 8599n/2299/3O'-6- EXHIBITF-Page6of20 \ SECTION 8: Dgmage bv. Casualtv It is erpressly understood and agreed that the rentals hereunder are in eónsideration of the right to occupy and use the teased Premises throughouÈ the entÍre Term, and, except as herein provided, it is the responsiblLity of the Lessor to provide such right at all ti¡nes. In the event of destructíon or damage to the Leased premises by an insured casual.ty or events, where saídl insurance meets tt¡e órtteria sPeclfled in Section 7 of. this Leaser So that they become whotly or. Partly unusable, the Lessor shall rebuild ánd repair the f,ea'sed Premises so that they shalL be restored to usã, and this Lease shall remain ín full force and ef,fect. sEcTIoìI.jg : Etsi¡e¡rt-DonaÍ-n. fE the whole of the Leased Premises' or so much thereof as to render the remainderunusabLe for the purposes for which the same was constructed, shal.I 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 thís Lease shall contlnue in full force and-effeèt and shall not be terminated by virtue of such taking (and the parties waive the benefit of any law to thecontrary). The tessor shall be entitled to receivê any and all proceeds of such condemnation award or settlement. slFcTroN r0: &.i.ens. In the event the Lessee subleases or assigns its interest in this lJease, 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 Il: Taxes. It is understood between the parties that that. portion of the Parking Facillty which ís dedicated to public commuter parking use and leased by the Agency shoulô be erempt from the imposition of property tar and that therefore such tares as are imposed should represent only the value of the commercial use of the Parking Facility. If it ís deterrnined that that portion of the Parking FacíIÍty which is dedicated to public commuter use is exempt from property tax, then the tessor agrees to pay any property taxes assessed on the Leased Prenises. If thereis no such exemption the property taxes shall be included aspart of the CAt'f charges and assessed against the t essor and the Lessee according to the CÀ!,1 charge allocation set out in Section 5 of this Lease. 04/02/90 8599n/2299/30'-7- EXHIBITF-Page7of20 ) ,t') . sEcrroN 12: @. Tbe parties hereto mutually covenant and agree that the I¡essee, by keeping and Perf,ormíng the covenants and agreements herein coñtainéd, shall at'all tfunes during the term, Peaceably and. quietly, have, hold and enjoy the Leased Premises. $ECTION 13: @. In addition to those undertakings and covenants elsewhere set forth in this Lease by the Lessor, the Lessor covenants that Lessor shall cause the compteÈion of the Public fmprovements by the time established therefor in the Agreement. Section L4. option to Purchase. The Lessee shalL have the right to Purchase the Parking FaciLity at lts sole optíon. This optÍon may not be exercised before two (2, years after the certifícate of compleÈion has been issued on the entire Project (Phase I and Phase II), and must be erercised no later than seven (7) years after the issuance of the certificate of completion for the entire proj ect . The Lessee and the tessor shall begin negotiations to set the price at which the Lessee may purchase the Parking Facility and the lease back costs within thirty (30) ilays of. the execution of the Flrst Àmendment to the owner participation agreement dated October 17 , 1989. At the time of negotiatíons, the Lessee and the f,essor shall agree in writing on all factors which shal.I þe used to establish a value for the structureincluding, but not limited tor the following criteria: 1. The orlginal construction cost of the ParkingFacility including hard costs, soft costs and offsites. 2. The original cost of the land on which the Parking Facility is located. 3. Payments the Lessor has made to the date of thepurchase for financing fees, principal and interest on theportion of his financing dealing with the Parking FacÍlity. 4. Compensation paid to date by the Lessee to the Lessor for the lease of the structure. 5. Such other factors as the Lessee or tbe Lessor may deem appropriate in establishing a value for the structure. Unless otherwise moôified by agreement between the Lessee and the Lessor, upon purchasing the Farking FacÍLity.the tessee and the Lessor shall ensure the following: 04/02/90 8599n/2299/34 -8- EXHIBITF-Page8of20 I 1. Adequate parking shalL be maintained for the tenants of FrancÍscan P1aza and the Provincial Buildling according to conditions set forth in the Joint Parking Àgreement. . 2. The Lessor shall continue to: (i) receive its share of the compensation collected by tbe Lessee for the paid parhing and (ii) pay its share of the CAI'[ cbarges. fn the event that the partles are unable to come to an agreement by October 1, 1990 as to the option purchase price this option shall be terminable by either party. In the event that tñis section Ís found'to be unenforceable or invalid such unenforcibil.ity or Ínvalldity shall not effect any otherprovision of this Agreement which shall remain in fulL force and effect. SECTION 1ã: I¡aw Ggl¡ernÍJng. ' Thís IJease is made in the State of California under the Conptitution and laws of, such State and is to be so construed. SFCTION 16.: Notices All notices, statements, demands, requests, consents, approvals, authorizaËions, oÉf,ers, agreements, appointnents or designatlons hereunder by either party to the other shall be inwriting and shall be sufficiently given and served upon theother.párty, if sent by United SÈates registered mail, returnreceÍpt requestéd, postage prepaid and addressed as follows: Lessor - Franciscan Plaza fnvestment Group il't¿r¡ c/o PauI f,. Farber and Àssociates 3t7al ÇPrQnù CY/tsfÙl¡c q ôoJôtllvql khsTrùr^to, :/l ' î;ztts San iluan Capistrano Community Redevelopment AgencyAttention: Executive Director 324OO Paseo Àclelanto San Juan Capistrano, California 92675 Lessee - SECTION, 17: Default.þv Lessggj Tqrminatlon. If the Lessee shall faíl to pay any rental payable hereunder within sixty (60) clays from the datè such rental Íspayable, 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 andshalt thereafter faiL to diligently prosecute the cure to completion, the Lessor after sixty (60) days' notice may 04/02/90 8599n/2299/30 -9- EXHIBITF-Page9of20 :; re-enterr cuEê such breach and charge the tessee therefor withlnterest thereof at the maximum rate permitted by law, andeject all parties in possession thereof therefrom. SECTION 183 AssÍcnment. The rights of the Lessee herein shall be for the benefit ofthe Lessee or a suceessor in interest to the Lessee or assignee which attorns to the Lessor. The f¿essor shall accept such successor or assígnee as a tenant herèunder on terms identicalto those set forth'in this Lease. UnLess the Lessor expressly agrees to the contrary, the Lessee shall remain liab1e as aprincipal for payment of the Rent hereunder notwithstanding such assignment. SECTION 19: Executíon. This Lease may be simultaneously execuÈed in any number ofcounterparts, each of whlch when so executed shall be deemed tobe an original, but atl together shall constitute but one andthe same Lease, and it is also understood and agreed thatseparate counberparts of this Lease may be separately erecutedby the Lessor and the f¡essee, aLL with the same full force andeffect as though the same counterpart had been executedsimultaneously by both the Lessor and the Lessee sEcrIoN 20: Valldily. If'any one or more of the terms, provÍsions, promíses, covenants or conditlons of this Lease shall to any.ertent beadjudged invalid, unenforceable, void or voidable for anyreason whatsoever by a court of competent jurisdiction, eachand all of the rernaining terms, provisions, promises, covenantsand conditions of this Lease shalt not be affected thereby andshall be valíd and enforceable to the fullest ertent permittedby law. SECTION 21: Headinos. Any headings preceding the texts of the severar sectionshereof shall be solely for convenience of reference and shallnot constitute a part of this Lease, nor shall bhey affect itsmeaning, construction or effect. SECTION 22: Non-discrirqination. The tessee covenants by and for itself, its successors andassigns, and alr persons claiming under or through it, and thisLease is made 9nd accepted upon and suÞject to the forrowingcondÍtions: That there shall be no discrimination against orsegregation of any person or group of persons, on account ofrace, color, creed, religion, sex, marital status, national 04/02/90 8599n/2299/30 - r0- EXHIBIT F - Page 10 of 20 I origln or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of, the premises herein leased nor shalL the Lessee itselfr or any person claiming under or through it, establish or pecmit any such practice orpractices of discrirninatlon or segregation with reference to the selectLon, location, number, use or occupancy, of tenants, Ìesseèsr sublessees, subtenants or vendees in the premises hereÍn leased. SECTfON 23: Suþordinatio¡ f,essee agrees to subordinate its rights under this Lease only to deeds of trust in favor of lenders providing construction or take out financÍng in connection with theProject, where said lender has executed a non-disturbance and attornment agreement in accordance with 5306 of the Àgreement. IN WITNESS hTHEREOF, the parties hereto have caused this Lease to be eiecuted and attested by their proper officers'thereunto duly authorized, and their official seals to behereto affj.xed, all as of the day and year first above wrítten. SAN ;TUAN CÀPISTRÀNO COMMUNITY REDBT¡ELOPMENT .â,GENCY rman,Ken ess 'LESSEE" AÎTEST: S c t (sEÀt) FRANCISCAN PLAZÀ INVESTMENT GROUP By , Paul Farber Lrr^t t\utEssoR" 04/02/90 8599n/2299/30.-1_r- EXHIBIT F - Page 11 of 20 NO.20? CO RPORATE ACKNOWLEDGMENT ,) srate of California Countyof Orange on thls the1.{!.b-daY of 14. tho undorslgned Notary Publlc, personally appeared JeffreY C. Parker 199L , before me, ss. Elc personallY known to me tr proved to me on the basis of satisfactory evidence to bs the person(r) who executed the within instrument,lsr.. ^Agency Sec-retary - oronbeJìî#iojlfdëööttflonlherein namêd, and acknowledged to ms lhat thdÓorporatton execuleo rI' ESS my hand and offlcial seal ure l{AnON LNOTAßYASSOO^nON ' 23012VonluroBlú' o P'O8or ¡oz¡ . woö¡¡andHlll¡cA 9t365'4625 @ OFFICIAL SEAL CHERY1 A. JO}IÎ\ISON NOTAFY PUBUC' CALIFORNIA 0mñ8E cürffï W corurr olcnt 0E 13. l9gg n20tz¿ EXHIBIT F - Page 12of 2O )) STATE OF CAITIFORNIA COUNTY OF ORAISGE STATE OF CATJIFORNTA COUNTY OF ORÀNGE Members of said pubtic corPoration. WITNESS mY hand and official seal. (SEAI,) ) ) ) ) ) ) ss. ss. l/ On furn¿ç 1990, before me, the undersigned,tarv Publíct- T*rzÈÊtp in and for said State, Personall"Y @ OFFICIAL SEAL EII,.EEN FEGTE' Î'rOTAtrf PUBttC - CALIFORI{|A oRßrcE coutmtû o¡¡¡o c¡eüls åPR lE, l$f appeared personal ly known to me or Proved to me on the basis of satisfactorY ev id n who executed the within GROUP, a California f.imited partnershiP, within instrument and acknowledged'to me executed the within lnstrument pursuant resolution of its Board of Directors. I^IITNESS my hand and official seal. 'ffiiåiinstrument as the (sEAt) o4/02/90 8599n/2299/3O SCAN PLAZA INT¡EST¡'ÍENTthat erecuted thethat such PartnershiPto its bylaws or a â OFFICIAL SEAL ÇIIERYL A. JOHN-SO}I I'CTAR'í PUSLIC . CAUFON;|IA oRÂI¡GE CÎUlll/ ùly comm. expkes 0íC 13. ¡!:l EXHIBIT F - Page 13 o120 I "rì E¡C¡IBIT 'À" LEGAT, DESCBTPTTON OF THE -FITE ( 121-150 -20) I,OT 40 OF TRACT NO. 103 AS SHOWN OI{ A I'IAP RECORDED IN BOOK 11' PAGES 29 I'IIROUGH 33 INCLUSM Or MISCEL,I'ANEOUS MAPS, RECORDS OF ORANGE CO['NIV, CALIFORNIA. g(CEPTING !HEREFROM THE 9IESTERIJY 13.00 FEET OF SAID T,OT, BEING A STRIP OF LAND 13.00 FEEÍ IN WIDTH IJYING EÀSTERI¡Y AND CoN'I:IGUOUS TO THE RIGHT OF WAY OF THE ÀTCHISON, TOPEKA AND SANTA FE RÀILWAY COMPAMT, AS DESCRIBED IN DEED RECORDED FEBRUARY 27, L936 IN BOOK 807 PAGE 286 OF OFFICIAL RECORDS. ÀI,SO EKCEPTTNG T¡TEREFROM THAT PORTION TIIEREOF DESCRIBED ÀS FOLLOWS: COMMENCTNG AT A POINT IN THE NORTHERI.Y T,TNE OF I,OT 42 OE SAID rn¡cr r¡o. Io3, sArD POINT BEING SOUrH.84 DEGREES 07 MINUÎES 30 SECONDS $'ESÎ 202.60 FEET FROM lHE NORTHE.IST CORNER OF SAID I-,OT 42t ÎtrENcE sourH 5 DEGREES 52 MINLXIES 30 SECONDS EAST 135.66 EEET TO À IIOINT rN THE SOU$TERLY IJINE OF SÀID LOI 42' SArD POINT BEING SOUTTT 84 DEGREES 28 IIIINUTES OO SECONDS WEST 20L,44 EEET FROM IÎTE SOUT'HE.AST CORNER OF SAID LOT 42; THENCE CONTTNUING SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 84.18 FEET TO À POTNT IN THE SOUTHERI,'Y LT!¡E OF LOT 41 OF SAID TRÀCT NO. IO3 ' TI{ENCE SOTTTH 84 DEGREES 27 MINTITES WEST ÀLONG SAID SOUTHERIJY LINE I5.OO FEET TO THE TRUE POTNT OF BEGINNING' THENCE ÀT,ONG SOUTH 5 DEGREES 52 MINTTTES 30 SECONDS EAST 9.50 FEET TO A POINT IN A TJINE THAT IS PARAI..I.,ET¡ WITH AND DISTANT SOUTHERI.Y 9.50 FEET FROM THE NORTHERLY IJINE OF SÀID LOT 40' THENCE WESTERI,Y PÀRALÍ,EL WITH ÀND DISTANT SOUTHERLY 9.50 FEET FROM SAID NORTHERI.Y I,TNE TO A POINT IN THE T{ESTERI,Y IJINE OF SÀID tOT 40t THENCE NORTHERLY ÀI¡ONG SÀID WESTERtY LINE TO THE NORIH9IIEST CORNER OF SAID LOT 40 i THENCE E,ASTERLY ALONG lHE NORTHERIJY LINE OF SÀTD LOT 40 TO THE TRUE POINT OF BEGTNNTNG' ( 121-1s0 -2L) I,OT 43, AS SHO}TN ON A LICENSED SURVEYOR'S MAP, COUNTY OF oRANGE, STÀTE OF CALIFORNIÀ, AS PER MAP RECORDED IN BOOK 2, pÀcEs 31 TO 38 INCÛUSM, RECORD OF SURVEYS, 'IN THE OFFICE OF THE COUN1Y RECORDER OF SAID COUNIY. EXCEPTING THEREFROM THE WESTERLY 12 FEET. 04/02/90 8599¡/2299/3o EKHTBIT "4" Page I of 3 EXHIBITF-Pageßof20 t''..-ç;' ( 121-r50 -22) ÎHAT PORTION OF I,O1 40 OF TRACT NO. 103, IN THE CIT:I OF SAN ,tuAN CAPISTRÀNO, COtNlY OF ORÀÀ¡GE, STATE OF CALIFORNIÀ, Às PER MAP RECORDED IN BOOK 11, PÀGES 29 THROUGH 33 INCLUSIVE OF' MISCELLÀNEOUS MAPS, RECORDS OF ORANGE COtNTY, CJ\ITIFORNIA, DESCRTBED ÀS FOLLOI{SI COMMENCING ÀT A POINT IN THE NORTHERLY IJINE OF LOT 42 OF SAID TRÀCT NO. 103, SAID POINT BEING SOIXfH 84 DEGREES 07 MINUTES 30 SECONDS WEST 202,60 FEET FROM T}IE NORTHEAST CORNER OF SAID LOT 42t THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135.66 FEEr TO À POINT IN THE SOUTHERLY LINE OF SAID LOT 42, SAID POINT BEING SOUTH 84 DEGREES 28 MINTITES OO SECONDS WEST 20L.44 FEET FROM THE SOUTHEÀST CORNSR OF SATD LOT 42' THENCE CONTINUING SOUTH 5 DEGREES 52 II'INUTES 30 SECONDS EAST 84.18 FEET TO À POINT IN lHE SOTTTHERLY'TJINE OF LOT 41 OF SATD TRÀCT 103; THENCE SOIIIH 84 DEGREES 27 MINIfTES WEST AI-,ONG SÀID SOUTHERIY LINE 15.00 FEET TO TITS TRT'E POINT OF BEGINNING; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 9.50 FEET TO A POTNT IN A I,INE ÎHAT IS FÀRåT,IJEI' WITH AND DISTANT SOUTHERLY 9,50 FEET FROM THE NORTHERIJY LINE OF SÀID LOT 40, IHENCE LINE TO A POTNT IN THE WESTERLY I,INE OF SATD LOT 4Oi THENCE NORTHERI,Y AI,ONG SÀID WESTERLY I,INE TO THE NORTHWEST CORNER OF SÀID LOT 4Ot THENCE EASTERLY ALONG THE NORTI{ERLY LINE OF SAID I,OT 40 TO THE TRI'E POINT OF BEGINNING. EXCEPTING THEREFROM THE WESTERLY 13.00 FEET OF SAID LOT, BEING À STRTP. OF T,AND 13. OO FEET IN WIDTH I,YING EASTERTY OF ÀND CONTIGUOUS TO THE RTGHT OF WAY OF THE ATCHISON, TOPEKA AND SANTA FE RÀILWAY COMPAIIS, ÀS DESCRIBED TN DEED RECORDED FEBRUÀRY 27, 1936 IN BOOK 807 PAGE 286 OF OFFICIÀL RECORDS. ( 12r-ls0-0e ) IJOT 42 OF TR.ã,CT NO' 103' IN THE CIIY OF SÀN JUAN CÀPISTRÀNO, COUNTY OF ORANGE, S1À18 OE CAI,IFORNTA, AS PER MÀP RECORDED IN BOOK 11, PAGES 29 TO 30 INCLUSIVE OF MISCEI,I,ÀNEOUS MÀPS, IN THE OFFTCE OF THE COT'NTY RECORDER OF SÀID COUNIY. EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PROPERTY: BEGINNING AT THE MOST EASTERTJY CORNER OF SAID LOT 42, SÀID CORNER BEING ON THE WESTERLV PROPERNT LINE OF THE CAT,IFORNIÀ STATE HIGHÍ^TAY: THENCE NORTH 5 DEGREES 23 MINUÎES OO SECONDS WEST AI,ONG THE ABOVE MENTIONED PROPERNT LINE ].36.88 FEET 10 ÀN INTERSECTION WITH THE SOUTHERLY f,INE OF GARDEN STREET: THENCE SOUÎH 84 DEGREES 07 MINUTES 30 SECONDS WEST ALONG THE SOUTHERLY IINE OF GARDEN STREET 202.60 FEET TO À POINT: ÎHENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS EAST 135.66 FEET TO A POINT ON THE SOUTHERLY LINE OF THE ABOVE ¡IENTIONED LOT 42¡ THENCE NORTH 84 DEGREES 28 MINUTES 00 SECONDS EÀST ALONG THE SOUTHERLY LrNE OF LOT 42, 20L.44 FEET TO THE POINT OF BEGINNING. 04/02/90 8599n/2299/30 HKHIBIT TÀT Page 2 of 3 EXHIBIT F - Page 15 of 20 ì i.l (12r-150-12) rrnr PoRTIoN oF I¡OT 41 Or TRACÎ NO. 103, IN T¡IE CIIY OF SÀN JtÀt{ CÀPISTRÀD¡O, COITNT:r OF ORAI{GE, STATE OF CALIFORNIA, AS PER !,tAP RECORDED IN BOOK tl, PAGES 29 THROUGH 33 INCLUSI\IE OF !,IISCELLÀNEOUS MAPS, RECORDS OF ORANGE CO['NIY, CALITORNIA, DESCRIBED AS FOLI¡OWS: BEGINNTNG ÀT T¡IE SOI}THfiEST CORNER OF SAID LOT 41; RUNNING TT{ENCE NORTH 9 DEGREES 40 ¡,IINT'ÎES WESÎ 84.41 FEET ÀI¡ONG THE WEST LINE OT SAID LOT 41 TO THE NORTHWEST CORNER ITTEREOF: TITENCE NORÎH 8.4 DEGREES 28 MIT{U]I:ES EAST 41.I.3 FEET AI,ONG THE HoRTHERLY f,I¡tE oF SAID LoT'4r To A PorNT wHIcH Is LoCATED 20L,44 FEET SOTXTH 84 DEGREES 28 MINTXTES ü'EST FROM THE SOUTHEAST COR¡TER OT f.OT 42 OÊ SAID ÎRACT NO. 103' THENCE SOTITH 5 DEGREES 52 UTNUTES q0 SECONDS EASÎ 84.18 FEEÎ 1O A POINÎ IN THE SO[XII|ERLY LINE OF SAfD LOT 41, THENCE SOITTH 84 DEGREES 27 UfNUTES I{EST 35.55 FEET AÍJONG THE SOIIIHERL'Y IrINE OF SAID LOT 41 rO THE POINT OF BEGINNING. (121-150-10) ÎHÀT PORTION OF IJOT 42 OE TRACT NO' IO3' IN THE CITY OF SAN .'UAN CAPISTRANO, COT'NIY OF ORÀÀIGE, STATE OF CALIFORNIA, AS PER !'tAp RECORDED rN BACK 11, PAGES 29 TO 33, TNCLUSTVE OF UISCELT,ANEOUS II'APS, RECORDS OF SÀID ORÀNGE COI'NIY, DESCRTBED ÀS FOLLOWS: BEGINNING TO THE MOST EASTERTY CORNER OF SAID LOT, SAID CORNER BETNG IN T'HE WESTERI,Y PROPERIY TJTNE OF THE CÀI¡IFORNIA STÀTE HIGHWAY, THENCE NORTH 5 DEGREES 23 MINIXTES 00 SECONDS I^IEST ÀLONG THE ÀBOVE MENTIONED PROPERIY LINE ].36.88 FEET TO AN INTERSECTION wrTH THE SOIIIHERLY LrNE OF GARDEN STREET; TIIENCE souTH 84 DEGREES 07 MTNUTES 30 SECONDS WEST, ÀI,ONG THE SOUTHERLY LINE OF GARDEN STREET' 202.60 FEET TO A POINI; THENCE SOUTH 5 DEGREES 52 MINUTES 30 SECONDS E.AST 135.66 FEET TO A POINT IN THE SOUTHERI¡Y IrINE OF SAID IuOT 42t ÎHENCE NORTH 84 DEGREES 28 MINUTES 00 SECONDS EAST, ÀLONG THE SOUTHERLY LINE OF SAID LOT, 2OL.44 FEET TO THE POINT OF BEGINNING. END 04/02/90 8599n/2299/30 EKHIBIT [ÀT Page 3 of, 3 EXHIBIT F - Page 16 of 20 wl,,L RESOLUTION NO. CRA 90-8-7-1 ACCEPTING LEASE - FRANCFCAT.¡ PLAZA PARKING STRUCTURE . A RESOLUTION OF THE SAN JUAN CAP¡STRANO COMMUNITY REDEVELOPMENT AGENCY, ACCEPTING THE LEASE AGREEMENT BETWEEN THE FRANCISCAN PLAZA INVESTMENT GROUP AS LESSOR ANÐ THE SAN JUAN CAPTSTRANO COMMUNITY REDEVELOPMENT ACENCY AS LESSEE FOR SPACES IN THE FRANCISCAN PLAZA PARKING STRUCTURE VHEREAS, in December,'19E7, the Community Redevelopment Agency of the City of Sa¡r Juar¡ Capistrano entered into an Owner Participation Agreement with the Franciscan Plaza Investment Group which called for the execution of a Lease Agreement. In October, 1989, ¡he Sar¡ Jr¡an Capistrano Community Redevelopfnent Atency amended this Owner Participation Agreement which modified the Lease Agreementi andr VHEREAS, this modified Lease Agreement was executed on June 5' 1990; and' WHEREA$ the Counry Recorder's Office has requested that a Resolu¡ion of Acceprance of this Lease Agreement be executed under their interpretation of Government Code Section 27281. NOV, THEREFORE, BE lT RESOLVED, that the San Jr.nn Capistrano Community Redevelopment Agency, City of Sur Jr¡an Capistranor Californiar does hereby accept the Lease Agreement executed by the San Juan Capistrano Community Redevetoþment Agency and Franciscan Plaza lnvestment Group on June 5, 1990. 7rhPASSED, APPROVED, Al.lD .{DOPTED thiso¡ August ', t990. day t. ATTEST: -t-EXHIBIT F - Page 17 of 20 È....t.. .,ì*.,.:.-..j ''t.¡ I STATE OF CALIFORNI,A ) COI,.INTY OF ORA¡\¡GE ) CTTY OF SAN ruA}.¡ CAPISTRANO ) SS. I, CIIERYL JOHNSON, City Clerk of the City of San Juan Capistrano¡ Californiar DO HEREBY CERTIFY that the attached is a true and correct coPy of Resolution No. CRA 90-8-7-1, adopted by the San Juar¡ Capistrano Community Redevelopment Agency at a regular meeting thereof held on the 7th day of August' 1990. (SEAL) San Capistranot California DATED: THIS 9th daY of August' 1990. EXHIBIT F - Page 18 of 20 I "'-/'\j' STATE OF CALTFORNIA COUNTY OF ORANGE CITY OF SAN JUA¡¡ CAPTSTRANO AYEli¡ NOES: ABSENT: (SEAL) Dl.rectots Schwa¡tze, Hausdorfet, Buchheín, Bland and Chainír¡¡ FrÍess None None ¿ ) ) ) ss ) I, JEFFREY q PARKER' Aqtlnt-^Se-cre-tara of the San Juan Capistrano communiti n"o"""lıpr* Àãenìi, óo HenÉ,gY CERTIFY that ¡he foregoing is a rue and correct copy oï ñıiãlutióñ-Ñı.'cn4 so;8-7=-1, ! "qoçtgqbv the Board or Dñ"cú;;;r_triésur:Gn-êã|isranoc@nt.Agency'1t?Í98urar ;;tirCineteoinef¿ ın ,tt"--Z¡l- day of n tF "t , 1990' by the following vote: -2- EXHIBIT F - Page 19 of 20 . i.. : il STATE OF CALIFORNT.A @UNTY OF ORA¡\¡GE CITY OF SAN ruA¡\¡ CAPTSTRA¡.IO ss.AFFIDAVIT OF POSTINGæ JgrFngY c. PARKER, being first duly sworn, deposes and saysl Thar he is the duly appoinred and qualified Acting Secretary of the San Juan Capistrano Community RedeveloPment Agency¡ That in compl iance with State laws of the Sta¡e of California and on the 9th in further compl iance with City Resolution No.CRA 83-t2-20-l and day of 1990, she caused to be posted: RESOLUTTON NO. CRA 90-g-Z-1 , being: ACCEPTING LEASE - FR.A¡¡CISCA.I'¡ PT.AZA PAR!fl NC.ITRUCTURE A RESOLUTION OF THE SAN JUAN CAPISTRANO COMMUNITY NEOÊVEIOPMENT AGENCY, ACCEPT¡NG THE LEASE ÀınezueNT BETvEEN THE FRANCIScAN PLAZA ¡NvESTMENT GROUP AS LESSOR AND THE SAN JUAN CAPISTRANO Cot'tuurutrv REDEvELoPMENT AcENcY As LESSEE FoR SPACES IN THE FRANCISCAN PLAZA PARKING STRUCTURE ) ) ) in rhree 0) pubtic places in the City of San J-uan.Capistrano, to wit: City Hall; Old Fire Station Recreation-Complex; Orange County Public Library. L Commun Redevelopment Agency -3-EXHIBIT F - Page 20 o120