BOWERS MUSEUM - 2005 1ST AMEND TO OPERATING AGMT

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---., .----- . ORIGINAL A-2005-257 FIRST AMENDMENT OF AMENDED AND RESTATED OPERATING AGREEMENT This agreement is made and entered into as of the sixth day of September, 2005, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California (the "City"), and the Charles W. Bowers Museum Corporation, a California non-profit public benefit corporation ("Bowers"). RECITALS A. The City and Bowers are parties to that certain Amended and Restated Operating Agreement dated June 18, 2001 (the "Original Agreement") relating to the ownership and operation of the Charles W. Bowers Memorial Museum (the "Museum"). B. Bowers desires to construct certain additional museum facilities (the "Additional Facilities" as hereinafter defined) adjacent to the existing Museum on land acquired or to be acquired by the City (the "Additional Property", defined as the Leased Premises in the Lease), and thereafter to manage and operate the Additional Facilities as an integrated part of the Museum. " C. Concurrently herewith the City (as Landlord) and Bowers (as Tenant) have entered into that certain lease of the Additional Property (the "Lease"), pursuant to which Bowers has agreed to construct the Additional Facilities on the Additional Property at no cost or expense to the City. Now, therefore, for and in consideration of their mutual and respective covenants, conditions and promises hereinafter set forth, and subject to the terms and conditions of this Agreement, the parties hereto do hereby agree as follows: 1. Definitions. Except as otherwise provided in this Agreement, the definitions set forth in the Original Agreement shall have the meanings ascribed thereto in that document. 2. Effective Date. Subject to Paragraph 3 hereof, effective on the first day of the first full calendar month following issuance of a Certificate of Occupancy for the Additional Facilities (the "Effective Date"), the Lease shall be deemed terminated in accordance with its terms and this Agreement shall take effect and supersede the Lease. 3. Title to Additional Facilities. As a condition precedent to the effectiveness of this Agreement, Bowers shall transfer title to the Additional Facilities to the City on the Effective Date, free and clear of all liens and encumbrances relating to the construction, equipping and furnishing of the Additional Facilities.