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Ordinance #3405
ORDINANCE NO. 3405 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH ADOPTING THE AMENDED AND RESTATED DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF HUNTINGTON BEACH, AND MAYER FINANCIAL, LTD. AND THE WATERFRONT HOTEL, LLC WHEREAS, in recognition of the complexity and planned long-term development of certain property commonly known as the Waterfront project(the "Site"), in 1988 the City of Huntington Beach and Robert L. Mayer, as Trustee of the Robert L. Mayer Trust of 1982, as amended("Mayer") entered into a development agreement for the development of the Site for commercial and residential uses (the"Original Development Agreement"); and Since adoption of the Original Development Agreement, development has been completed on a portion of the Site (the"Hilton Parcel") in accordance with the criteria established in that Agreement, but development of the other portions of the Site has not occurred as anticipated by the Original Development Agreement; and In addition, Mayer has assigned his rights and obligations as set forth in the Original _ Development Agreement as to that portion of the Site for which development in accordance with the terms of the Original Development Agreement has not taken place (the "Property")to Mayer Financial, Ltd., and the rights and obligations pertaining to the Hilton Parcel have also been subsequently assigned to The Waterfront Hotel,LLC; and The Parties desire to amend the Original Development Agreement to establish new criteria for the development of the Property and to restate the obligations and rights of the parties remaining under the Original Development Agreement as to the Hilton Parcel; and 1 4/s:4-980rdinance:Mayer909 9/9/98 3 3 3�105 The Amended and Restated Development Agreement between the City of Huntington Beach, on the one hand, and Mayer Financial Ltd., and The Waterfront Hotel LLC, on the other (the "Amended and Restated Development Agreement")has been prepared and reviewed at a duly noticed public hearing held by the Planning Commission of the City of Huntington Beach on August 25, 1998; and The Amended and Restated Development Agreement has been reviewed at a duly noticed public hearing held by the City Council of the City of Huntington Beach on September 14, 1998; NOW, THEREFORE, the City Council of the City of Huntington Beach does ordain as follows: SECTION 1. The City Council of the City of Huntington Beach hereby finds: (a) The Amended and Restated Development Agreement is consistent with the City's General Plan, the Downtown Specific Plan, and the Local Coastal Program, as they apply to the Site; (b) The Amended and Restated Development Agreement is consistent with Chapter _ 246 of the Huntington Beach Zoning and Subdivision Ordinance,the Huntington Beach Municipal Code, and the State of California Subdivision Map Act, as they apply to the Site; (c) The Amended and Restated Development Agreement will not be detrimental to the health, safety and general welfare, and will not adversely affect the orderly development of property because it is consistent with the applicable land use regulations and incorporates mitigation measures from Environmental Impact Report 82-2, as modified by Supplemental Environmental Impact Report 82-2 and the Addendum dated July 15, 1998 ; and 2 4/s:4-980rdinance mayer909 9/9/98 3�oS (d) The City Council has considered the fiscal effect of the Amended and Restated Development Agreement on the City and the effect on the housing needs of the region in which the City is situated and has balanced these needs against the public service needs of its residents and available fiscal and environmental resources. SECTION 2. Based on the above findings,the City Council of the City of Huntington Beach hereby approves the Amended and Restated Development Agreement and adopts it by ordinance pursuant to Government Code Section 65867.5. This action is subject to a referendum. SECTION 3. This ordinance shall take effect 30 days after its passage. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 21st day of September 1998. 16"e Quznr� Mayor ATTEST: APPROVED AS TO FORM: City Clerk C' A ne REVIEWED AND APPROVED: INITIATED AND APPROVED: 0111 City Adm' istrator Director of Coniniurdly Development 3 4/s:4-980rdinance:Mayer90 9 9/9/98 i .. ... .................. PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: Recorded in the county of Orange, california Gary L y. Granville i , lC l erk/Recorder AND WHEN RECORDED MAIL TO: IIIIIIIIIIIIIiIIIIlIIl1IIIIIIIIIII4IIlIIIIIIIIIIIIIIIIIIIIIIIIIII No Fee ff 19980838602 2,29pm 12/07/98 Vti 005 8018176 08 04 C A17 59 6.00 174.00 0.00 0.00 0.00 0.00 �S+ Yee. 6 CAL) � lx �TC� nC.6 vr�-Q.t �' `t L1 THIS SPACE FOR RECORDER'S USE ONLY TITLE OF DOCUMENT.- THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Additional recording fee applies) •a �53-ri l E f°nGE(R7/95i PLEASE COMPLETE THIS INFORMATION ' RECORDING REQUESTED BY: Recorded in the county of orange, California Garry L. Granville, Clerk/Recorder AND WHEN RECORDED MAIL TO: II�11�I4IIIIIIIIIIIIIIIIIIl11IIII111IIIIIIIII4I�IIIIlllllllllllll No Fee 19980838602 2;29pm 12/07/98 005 8018176 08 04 F0 7 59 6.00 174.00 0.00 0.00 0.00 0.00 L1 THIS SPACE FOR RECORDER'S USE ONLY TITLE OF DOCUMENT: l'YYt[�vv� J l - 'i THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Additional recording fee applies) `0 159-71I I E PAGE(R7/951 2. 0/?Z) '3 Vc, i57- CITY OF HUNTINGTON BEACH RECORDING REQUESTED BY OFFICE OF THE CITY CLERK AND WREN RECORDED MAIL TO: 200Q MAIN STREET Cj�i�i/�J�L, �'d HL&T1NGTON BEACH,, CALIF, 92648 City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 FREE RECORDING Attention: City clerk GOVERNMENT CODE SECTION 6103 E-4 - - -- f � / 4 Recorded in the County of orange, California wYQ�6YQrY1 L01U16v6 Gary L. Granville, Clerk/Recorder W �� ��� ►p��. �I4! Ili ��I 1111111111IjjI11111 I111 No Fee C1n�Y►'� `� 19980711512 3;29pm 10/21/98 005 23014716 23 64 0 - Al2 56 6.00 165.00 0.00 0.00 0.00 0.00 r +j T to o 3 a 71� Y$-IrPCQrd�d, J r �o ryi-em n`I- 0) Coy-i c f er I7 a) U � o htib►` -s cis ol��u+�er��- I � �t ��8 �8 �� H +; H AMENDED AND RESTATED DEVELOPMENT AGREEMENT C 0J6 C�h F q W U U U A by and between H ` CITY OF HUNTINGTON BEACH, A d Pl - w = and rz W d x = MAYER FINANCIAL, LTD., a California limited partnership, and THE WATERFRONT HOTEL, LLC, nis document is solely for tih® liability limited a Californiamited Iia an ofi'iciai business of the City tY company y of Huntington 13eacha, as contem- plated under Government Code See. 6103 and should be recorded free of charge. Ike ®tnpt-Govemment Agency CiTy OF HUNTINGTON BEACH Brockway,My Clark 3V• puffy City Clerk 9/16/98 TABLE OF CONTENTS ~ 1. RECITALS OF PREMISES, PURPOSE AND INTENT . . . . . . . . . . . . . . . . . . . . . . . . . l 1.1 Backparound . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l 1.1.1 . . . . . . . . . . . ] l.l.% . . . . . . . . . . . . . . . . . . . . l 1.2 Code Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l 1.3 Reasons for Agieeme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1'4 Ci1y Procedures . . . . . . . . . . . ' ' ' ' ' ' . . . . ' . ' ' ' ' ' ' . ' . . . . . . . . . . . . . . . . . . . . 3 1/4 . . . . . . . ' . . . . . . . . . . . . . . . . . . . ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' . . . . . . . . . . ' ' ' . . . . 3 l.5 Interest of Developer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.6 Environmental Review Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.7 Project Is Private Undertaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3. DEVELOPMENT OF THE SITE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.1 Land Use Approvals and Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . O 3.1'1 Land Uses, Densities and Intensities on the Property. . . . . . . . . . . . . . . . 8 3.1.I.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.1.1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . lD 3.1.2 . . . . . . . . . . . . . . . . . . . . . . . . l0 3.1.2.3 . . . . . . . . . . Il 3.1.2/4 Oil Wells. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 3.1.2.5 . . . . . . . . . . . . . . .` . . . . . 12 3.1.2.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.1.2.7 Fire� . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.1.3 Vesting of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.1.3.1 Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.1.3.2 Certain Changes Prohibited Without Consent of Develop 12 3.133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.1.3/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.1.3.5 and Utilijy Service Limitations. . . . . . . . . . . . . . � � . . . . . . . . . . . l3 3.1.3.6 Reservation of Right to Apply Other Regulatory Measures. . . . 13 3.1.3.7 . . . . . . . . . . . . . . . . . . . . . . . 13 3.1/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.1.4.1 Subsequent Entitlement Approval Required . . . . . . . . . . . . . . . l4 3.1.4.2 Reaponsibili1y of Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . I4 3.1,4.3 . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.1.4/4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 9116/98 -� 3.1.4.5 Reservation of Right to Impose Certain Conditions . . . . . . . . . 14 3.1.4.6 Construction to be Consistent with City Approvals. . . . . . . . . . 14 r 3.1.4.7 Revisions Requested by Developer . . . . . . . . . . . . . . . . . . . . . . 14 3.1.5 Assignment by Developer . . . . . . . . . . . . . . . . . . I . . . . . . . . . . . I . . . . . 15 3.1.5.1 City Approval of Assignment Required. . . . . . . . . . . . . . . . . . . . 15 3.1.5.2 Submittal of Transfer Documents. . . . . . . . . . . . . . . . . . . . . . . 15 3.1.5.3 Approval of Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3.1.5.4 Obligations in Addition to DDA and Other Agreements. . . . . . 15 3.2 Public Improvements and Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3.2.1 Installation Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3.2.2 Pedestrian Overcrossings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3.2.3 EIR Mitigation Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3.2.4 Dedications and Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3.2.5 Improvement Security/Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.2.6 Further Land Use Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.2.7 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.3 Development Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.3.1 General Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.3.2 Park Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3.4 Mortgagee Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3.4.1 Encumbrance Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3.4.2 Requests for Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3.5 Provisions Applicable to the Hilton Parcel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 4, GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 4.1 Recordation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 4.2 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . 20 4.2.1 Commencement of Term. . . . . . 20 4.2.2 Termination of Agreement. . . . . . . . . 20 4.2.3 Continuation of Specific Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4.2.4 Termination for Failure to Obtain Certificate of Completion . . . . . . . . . 20 4.2.5 Termination for Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4.2.6 Extension of Terre. of Tentative Tract Map and Other Project Approvals and Subsequent Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . 21 4.3 Cooperation and implerr�entation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 4.3.1 Implementation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 - 4.3.2 Relocation of the Beach Maintenance Facility. . . . . . . . . . . . . I . . . . . . 21 4.3.3 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 4.3.4 Restriction on Beach Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 4.4 Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.4.1 Cooperation in Legal Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.4.2 Effect on Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.5 Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.5.1 Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 9n 6/98 -ii- 4.5.2 Procedure Regarding Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.5.2.1 Notice Required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.5.2.2 Right to Cure. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 25 4.5.2.3 Delay not a Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 4.5.2.4 Time to Cure. . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 4.5.2.5 Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 4.5.2.6 Default during Annual Review. . . . . . . I . . . . . . . . 26 4.5.3 Annual Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 4.5.3.1 Responsibilities of the Parties. . . . . . . . . . . . . . . . . . . . . . . . . . 26 4.5.3.2 Procedure for Annual Review. . . . . . . . . . . . . . . . . . . . . . . . . . 27 4.5.3.3 Result of Annual Review. . . . . . . . I . . . . . . . . . . . . . . . . . . . . . 27 4.5.3.4 Failure to Conduct Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 4.5.4 Institution of Legal Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 4.5.5 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 4.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 4.7 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4.7.1 Expiration of Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4.7.2 Effect of Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4.7.2.1 The Hilton Parcel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4.7.2.2 The Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4.7.2.3 No Effect on the DDA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4.8 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . 31- 4.9 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4.10 Modification Amendment or Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4.11 Operating Memoranda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4.12 Conflicts of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.12.1 Conflict with State or Federal Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.12.2 Cooperation in Securing Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.13 Indemnity . . . . . . . . . . . . . . . . . . . . . . I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.13.1 Developer to Indemnify. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.13.2 Application to Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.14 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.15 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.16 Governing State Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . 33 4.17 Constructive Notice and Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.18 Statement of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 - 4.19 Covenant of Good Faith and Fair Dealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.20 Covenant of Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.21 Further Actions and Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.22 Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.23 Enforced Delay(Force Majeur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.23.1 Force Majeure Defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.23.2 Notice Requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.23.3 Exception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 9116M -111- 4.24 Ewergency Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4,24.1 Authonly to Modify Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4L24-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4.25 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4.26 IntMretation . . . . . . . . . . . . . . ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 427 Counterparts . . . . . . . . . . . . ^ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 428 Entire Aueement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 � l. RECITALS OF PREMISES, PURPOSE AND INTENT . . . . . . . . . . . . . . . . . . . . . . . . . l 1.1 Backgro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l 1.1.1 . . . . . . . . . . . . I 1.1.2 . . . . . . . . . . . . . . . . . . . . l 1.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l 1.3 Reasons for Aueement . ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.4 Cijy Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.4 . . . . . . . . . . . . . . . . ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.5 Interest of Developer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1.6 Enviro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.7 Project Is Private U ndertakin . . . . . ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 2- DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . ' . . . . . . . . . . . . . . . . ' . . . . . . . . . . . . . . . . 4 3. DEVELOPMENT OF THE SITE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.1] Land Uses, Densities and Tntensities on the Propejjy. . . . . . . . . . . . . . . . 8 3l1.I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3.1.1.2 Residential . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . lO 3'1.2 Special Use and Development Provisigns . . . . . . . . . . . . . . . . . . . . . . . lD 3.1.23 . . . . . . . . . . D 3.1.2,4 . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . � . . . . . ll 9.I-2.5 . . . . . . . . . . . . . . . . . . . . . 12 3.1.2.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3.1.2.7 . . . . . . . . . . . . . . . . ' . . . . . . . . . . . . . . . . . . . 12 3.1.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . 12 3l3.1 . . . . . ' . . . . . . . . . . . . . . . . . . . . . . 12 3l3.2 . . 12 3.1.3.3 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . l3 3.1.3'4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 3.1.3.5 Reservation of Right to A ly Certain Development and LJtiliiy Service Limitations. ' ' ' ' ' ' ' ' . . ' ' ' . . . . . . . . . . . . l] 3.1.3.6 . . . l3 3.1.3'7 . . . . . . . . . . . . . . . . . . . . . . . 13 3.1A Subsequent Discretiongy ' . . . . . . . . . . . . . . . . . . . . . . . ' . . . 14 3.1.4.1 Subsequent Entitlement AMroval Required . . . . . . . . . . . . . . . 14 m*m -iv- 3.1.4.2 Responsibilijy of Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.1.4.3 Reslonsibility for Paying Fees. . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.1.4.4 Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 3.1.4.5 Reservation of Right to Impose Certain Conditions . . . . . . . . . 14 3.1.4.6 Construction to be Consistent with CityApprovals. . . . . . . . . . 14 3.1.4.7 Revisions Requested by Developer . . . . . . . . . . . . . . . . . . . . . . 14 3.1.5 Assignment by Developer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 15 3.1.5.1 City Approval of Assigument Required. . . . . . . . . . . . . . . . . . . . 15 3.1.5.2 Submittal of Transfer Documents. . . . . . . . . . . . . . . . 15 3.1.5.3 Approval of Transfer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3.1.5.4 Obligations in Addition to DDA and Other Agreements. . . . . . 15 3.2 Public Improvements and Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3.2.1 Installation Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 3.2.2 Pedestrian Overcrossinus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3.2.3 EIR Mitigation Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3.2.4 Dedications and Reservations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3.2.5 Improvement Security/Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.2.6 Further Land Use Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.2.7 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.3 Development Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.3.1 General Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 3.3.2 Park Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3.4 Mortgagee Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3.4.1 Encumbrance Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3.4.2 Requests for Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 3.5 Provisions A pplicable to the Hilton Parcel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 4. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 4.1 Recordation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 4.2 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4.2.1 Commencement of Term.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4.2.2 Termination of Aueement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4.2.3 Continuation of Specific Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4.2.4 Termination for Failure to Obtain Certificate of Completion . . . . . . . . . 20 4.2.5 Termination for Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 4.2.6 Extension of Term of Tentative Tract Map and Other Project Approvals and Subsequent Permits. . . . . . . . . . 21 4.3 Cooperation and Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 4.3.1 Implementation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 4.3.2 Relocation of the Beach Maintenance Facility. . . . . . . . . . . . . . . . . . . . 21 4.3.3 Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 4.3.4 Restriction on Beach Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 4.4 Legal Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.4.1 Cooperation in Legal Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 9/16/98 -V- ,.3;zos 4.4.2 Effect on Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.5 Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.5.1 Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I . . . . . . . . . . 25 4.5.2 Procedure Regarding Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.5.2.1 Notice Required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.5.2.2 Right to Cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 4.5.2.3 Delay not a Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . 26 4.5.2.4 Time to Cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 4.5.2.5 Termination of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 4.5.2.6 Default during Annual Review. . . . . . . . . . . . . . . . . . . . . . . . . . 26 4.5.3 Annual Review . . . . 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 4.5.3.1 Responsibilities of the Parties. . . . . . . . . . . . . . . . . . . . . . . . . . 26 4.5.3.2 Procedure for Annual Review. . . . . . . . . . . . . . . . . . . . . . . . . . 27 4.5.3.3 Result of Annual Review. . . . . . . . . . . . . . I . . . . . . . I . . . . . . . 27 4.5.3.4 Failure to Conduct Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 4.5.4 Institution of Legal Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 - 4.5.5 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 4.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 4.7 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4.7.1 Expiration of Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4.7.2 Effect of Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4.7.2.1 The Hilton Parcel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 4.7.2.2 The Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4.7.2.3 No Effect on the DDA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4.8 No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4.9 Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4.10 Modification, Amendment or Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4.11 Operating Memoranda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 4.12 Conflicts of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.12.1 Conflict with State or Federal Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.12.2 Cooperation in Securing Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.13 Indernnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.13.1 Developer to Indemnify. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.13.2 Application to Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.14 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 4.15 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.16 Goveming_State Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.17 Constructive Notice and Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.18 Statement of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.19 Covenant of Good Faith and Fair Dealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 4.20 Covenant of Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.21 Further Actions and Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.22 Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.23 Enforced Delay (Force Majeure) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 9A6198 _vt_ 3�Zbs 4.23.1 Force Majeure Defined. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.23.2 Notice Requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 4.233 Exception. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4.24 Emergency Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4.24.1 Authority to Modify Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4.24.2 Definition of Emergency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4.25 Severahility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4.26 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 4.27 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 4.28 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 9116198 -Vll- 3 TABLE OF EXHIBITS } Exhibit A: The Hilton Parcel - Site Map Exhibit B: The Hilton Parcel - Legal Description Exhibit C: The Property - Site Map Exhibit D: The Property- Legal Description Exhibit E: The Commercial Parcel(showing also the Ocean Grand Resort Portion and the Third Hotel Portion) Exhibit F- The Residential Parcel Exhibit G: City Beach Property 9116198 -viii- AMENDED AND RESTATED DEVELOPMENT AGREEMENT BY AND BETWEEN r CITY OF HUNTINGTON BEACH, AND MAYER FINANCIAL, LTD., A CALIFORNIA LIMITED PARTNERSHIP, AND THE WATERFRONT HOTEL, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT is entered into as of the 2151 day of September, 1998, by and between the CITY OF HUNTINGTON BEACH, a charter city ("City"), and MAYER FINANCIAL, LTD., a California limited partnership, ("Developer") and THE WATERFRONT HOTEL, LLC, a California limited liability company ("Waterfront") (collectively, City,Developer, and Waterfront are the "Parties"). 1. RECITALS OF PREMISES, PURPOSE AND INTENT 1.1 Background 1.1.1 Development Under the Original Development Agreement. In 1988,City and Robert L. Mayer, as Trustee of the Robert L. Mayer Trust of 1982, as amended ("Mayer") entered into a development agreement for the development of the Site for commercial and residential uses (the"Original Development Agreement"). Since adoption of the Original Development Agreement, development was completed on the Hilton Parcel in accordance with the criteria established therein, but development of the other portions of the Site has not occurred as anticipated by the Original Development Agreement. In addition,Mayer assigned his rights and obligations as set forth in the Original Development Agreement to Developer as to that portion of the Site for which development in accordance with the terms of the Original Development Agreement has not taken place (the "Property"). The Parties desire to amend the Original Development Agreement to establish new criteria for the development of the Property. 1.1.2 Original Development Agreement Superceded. This Agreement supersedes the Original Development Agreement. The Original Development Agreement shall have no force or effect on and after the Adoption Date of this Agreement. 1.2 Code Authorization To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted the Development Agreement Act which authorizes any city to enter into binding development agreements establishing certain development rights in real property with persons having legal or equitable interests in such property. Section 65864 of the Development Agreement Act expressly provides, in part, as follows: 9/16/98 3� The Legislature finds and declares that: } (a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and discourage investment in and a commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. (b) Assurance to the applicant for a development project that upon approval of the project,the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic costs of development. 1.3 Reasons for A egr ement The Parties hereto have previously determined that development of the Site is of such a size and scale that a development agreement was and remains appropriate. Development of the Hilton Parcel occurred in accordance with the terms of the Original Development Agreement, and development of the remainder of the Site in accordance with the Original Development Agreement, as herein amended, will provide for the orderly development of such land in accordance with the objectives set forth in the General Plan, the Specific Plan, the Redevelopment Plan, and the Local Coastal Program. Because of the complexities of development of the Property, certainty in land use, density and intensity of development to both the City and the Developer in the development process is an absolute necessity. Moreover,by amending and restating the Original Development Agreement,the Parties will up-date the planning for and secure the orderly development of the Property to ensure attainment of the maximum efficient utilization of resources within the City at the least economic cost to its citizens,the provision of public services,public uses,urban infrastructure and other goals and purposes for which the Development Agreement Act was enacted, and the promotion of the health, safety and general welfare of the City of Huntington Beach and its residents. As a result of the development of the Site in accordance with the Original Development Agreement as amended and restated in this Agreement, City will receive substantial benefits, including: commercial and residential development of an intensity or density and aesthetic quality desired by the community, additional employment opportunities, increased property and sales tax revenues, and the provision of desired public facilities. in consideration of those benefits, the City herein provides Developer assurance that during the term of this Agreement, it may develop, maintain and use the Property in accordance with the terms and conditions of this Agreement. 9116198 2 ........ .............. .3 fos 1.4 City Procedures City has undertaken the necessary proceedings required by State Law and Chapter 246 of the Zoning Ordinance, and has found and determined-. (a) That this Agreement is consistent with the General Plan, the Specific Plan, and the Local Coastal Program; (b) That this Agreement is consistent with Chapter 246 of the Zoning Ordinance, the Code, and the State of California Subdivision Map Act; (c) That this Agreement will not be detrimental to the health, safety and general welfare, and will not adversely affect the orderly development of property; and (d) That the City Council has considered the fiscal effect of this Agreement on the City and the effect on the housing needs of the region in which the City is situated and has balanced these needs against the public service needs of its residents and available fiscal and environmental resources. 1.4 Effect of Agreement; Inconsistency Resolution This Agreement does not(1)grant density or intensity in excess of that otherwise established in the Applicable Rules, (2) supersede, nullify or amend any condition imposed in the Project Approvals, (3) guarantee to Developer any profits from the Property, the Project, or any portion thereof, or (4) prohibit or, if legally required, indicate Developer's consent to, the Property's inclusion in any public financing district or assessment district. Notwithstanding the foregoing, in the event of any conflict between the provisions of the General Plan, the Specific Plan, the Zoning Ordinance, or any other provision of the Code, and the provisions of this Agreement, the provisions of this Agreement shall prevail, and in the event of any conflict between the provision of this Agreement and the DDA,the DDA shall prevail. 1.5 Interest of Developer Developer represents that as of the date of execution of this Agreement, Developer has interests in the Property under(1) that certain Third Amended and Restated Lease dated as of April 18, 1989,by and between the Redevelopment Agency of the City of Huntington Beach and Mayer, as amended on or about November 16, 1992, by the First Amendment to Third Amended and Restated Lease, and by.the Lease Assignment and Assumption Agreement by and between Mayer and Developer dated ` "' , 1997;and(ii)the DDA. In addition, Waterfront represents that as of the date of execution of this Agreement, Waterfront has interests in the Hilton Parcel under that certain Lease by and between the Redevelopment Agency of the City of Huntington Beach and Waterfront Construction No. 1, a California limited partnership, dated as of April 28, 1989, as assigned by Waterfront Construction No. 1 to Waterfront pursuant to the Lease Assignment and Assumption Agreement recorded on July 17, 1997, as Instrument No. 1997038159 in the official records of the Orange County Recorder's Office. 9116/98 3 1.6 Environmental Review Process } On July 18, 1983,by Council Resolution No.5284, the City Council certified, after making appropriate findings, Environmental Impact Report 82-2 for the Specific Plan ("EIR 82-2"). On August 15, 1988, by Council Resolution No. 5913, the City Council certified, after making appropriate findings, Supplemental Environmental Impact Report No. 82-2 for the Original Development Agreement and all development contemplated thereunder. On September 14, 1998, by Council Resolution No. 98-71,the City Council certified, after making appropriate findings, an addendum to the Supplement to EIR 82-2 prepared for the Project under the provisions of the California Environmental Quality Act(California Public Resources Code Section 21000, et seq). 1.7 Project Is Private Undertaking It is specifically understood and agreed to by and between the Parties hereto that: (1) the subject development is a private development; (2) there are no third party beneficiaries to this Agreement; (3)Developer shall have full power over and exclusive control of the Property subject only to the limitations and obligations of Developer under this Agreement and the DDA; and(4)the contractual relationship between City and Developer and between City and Waterfront is such that neither Developer nor Waterfront is an agent of City, nor is City an agent of Developer or Waterfront. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to waive or modify any otherwise applicable right or obligation which City, acting in its governmental capacity and not as a Party to this Agreement, may have to Developer, Waterfront, or any other parry, under and in accordance with all applicable laws. 2. DEFMTIONS For purposes of this Agreement,except as otherwise expressly provided or unless the context otherwise requires: 2.1 "Adoption Date" means the effective date of the Approval Ordinance. 2.2 "Agency"means the Redevelopment Agency of the City of Huntington Beach. 2.3 "Applicable Rules" means the ordinances, resolutions, rules, regulations, - requirements and official policies of the City in force as of November 2, 1988, (the Effective Date of the Original Development Agreement) governing permitted land uses, density and intensity of buildings, growth control, subdivision, zoning, grading, landscaping, signage and design, and improvement standards applicable to development of the Property,including,but not limited to,the General Plan, the Specific Plan, the Local Coastal Program, the Code, the Zoning Ordinance, and the Downtown Design Guidelines, except as specifically modified by this Agreement or the DDA, and shall also include the Project Approvals. 9/16198 4 2.4 "Approval Ordinance"means Ordinance No.3405, adopted by the City Council of the City on September 21, 1998, approving this Agreement. 2.5 "City"means the City of Huntington Beach, California. 2.6 "Code"means the Huntington Beach Municipal Code. 2.7 "Council"or"City Council"means the City Council of the City of Huntington Beach. 2.8 "DDA" means the Amended and Restated Disposition and Development Agreement by and between the Redevelopment Agency of the City of Huntington Beach and Developer adopted by the Agency on September 14, 1998. 2.9 "Developer"means Mayer Financial, Ltd., a California limited partnership. 2.10 "Development Agreement Act" means Sections 65864, et seq., of the California Government Code. 2.11 "Development Fees"means and includes all fees charged by the City in connection with the application, processing, and approval or issuance of permits for the development of property, including, without limitation: application fees; permit processing fees; inspection fees; utility capacity fees; service or connection fees; development impact or major facilities fees; park fees; flood control fees; environmental impact mitigation fees; and any similar governmental fees, charges and exactions required for the development of the Project. 2.12 "Director"means the Director of Planning of the City. 2.13 "Downtown Design Guidelines" means those Guidelines adopted by City Council Resolution No. 5572 on September 3, 1985. 2.14 "Effective Date" means the date the Original Development Agreement became effective,November 2, 1988. 2.15 "EIR" means Environmental Impact Report 82-2, as modified by Supplemental Environmental Impact Report 82-2, and by the Addendum considered on September 14, 1998. 2.16 "General Plan"means the General Plan of City as adopted on the Effective Date. 2.17 "Hilton Parcel"means that approximately 3.6 acre portion of the Site which is the subject of that certain lease by and between the Agency and Waterfront Construction No. 1 dated as of April 28, 1989, as subsequently assigned by Waterfront Construction No. 1 to Waterfront, and upon which has been constructed the Waterfront Hilton Beach Resort. A site map for the Hilton Parcel is set forth in Exhibit A, and the legal description of the Hilton Parcel is set forth in Exhibit B. 9rts�9a 5 2.18 "Local Coastal Program"means the Local Coastal Program of the City of Huntington Beach as in effect on the Effective Date. 2.19 "Mayer"means Robert L. Mayer, as Trustee of The Robert L. Mayer Trust of 1982, dated June 22, 1982, as amended. 2.20 "Mortgagee" means a mortgagee of a mortgage and a beneficiary under a deed of trust. 2.21 "Original Development Agreement" means that agreement entitled "Development Agreement By and Between the City of Huntington Beach and Robert L. Mayer, as Trustee of the Robert L. Mayer Trust of 1982, dated June 22, 1982, as Amended," adopted by the City Council of the City on October 3, 1988, by Ordinance No. 2962. 2.22 "Project" means the Property and the proposed development of the Property for commercial and residential uses and supporting public facilities in accordance with the terms of this Agreement. 2.23 "Project Approvals" means all City discretionary entitlements approved for the development of the Project as of the date of adoption of the Approval Ordinance, which approvals are as follows: 2.23.1 Council Resolution No. 98-71, adopted on September 14, 1998, approving environmental findings including an addendum to the EIR; 2.23.2 This Amended and Restated Development Agreement, No. 98-1, approved by Ordinance No. 3405 adopted on September 21, 1998; 2.23.3 Coastal Development Permit No. 97-15 for commercial development on the Ocean Grand Resort Portion, as approved by the City Council on September 14, 1998; 2.23.4 Coastal Development Permit No. 98-6 for interim uses on the Third Hotel Portion, as approved by the Planning Commission on August 25, 1998; 2.23.5 Conditional Use Permit No. 97-46 for certain commercial development on the Ocean Grand Resort Portion, Special Permits issued in connection therewith, and approval of the Commercial Site Master Plan for the Commercial Parcel, as approved by the City Council on September 14, 1998; 2.23.6 Conditional Use Permit No. 98-9 for interim uses on the Third Hotel Portion, as approved by the Planning Commission on August 25, 1998; 9/16198 2.23.7 Tentative Tract Map No. 15535 and any final subdivision map consistent therewith and with this Agreement; } 2.23.8 Council Ordinance No. 3406, adopted on September 21, 1998, approving Precise Plan of Street Alignment No. 98-1 for Pacific View Avenue; 2.239 Design Review No. 97-20 for the commercial development on the Ocean Grand Hotel Portion,as approved by the Design Review Board on January 22, 1998; 2.23.10 Design Review No. 98-14 for interim uses on the Third Hotel Portion, as approved by the Design Review Board on July 9, 1998; 2.23.11 The Impact of Conversion Report dated February 2, 1988, as approved by Planning Commission Resolution No. 1395 adopted on June 8, 1988, and the Relocation Assistance Plan dated June 8, 1988, as approved by Planning Commission Resolution No. 1396 adopted on June 8, 1988, for conversion of the existing mobilehome park on the Property; 2.23.12 The Concept Approval for the Shipley Nature Center approved by the City Council on May 6, 1991. Project Approvals also include all conditions of approval adopted by the City in connection with any of the foregoing. 2.24 "Property"means that portion of the Site other than the Hilton Parcel. A site map for the Property is set forth in Exhibit C, and the legal description of the Property is set forth in Exhibit D. For purposes of reference in this Agreement,the Property is divided into the following segments: 2.24.1 "Commercial Parcel"means that approximately 18.82 acre portion of the Property upon which commercial uses shall be permitted as set forth in Section 3.1.1.1 of this Agreement. The Commercial Parcel is divided into two portions: (a) the approximately 15.27 acre"Ocean Grand Resort Portion"; and (b) the approximately 3.55 acre "Third Hotel Portion." The Commercial Parcel and the division thereof into the Ocean Grand Resort Portion and the Third Hotel Portion are described in Exhibit E. 9/16/98 ` 2.24.2 "Residential Parcel" means that approximately 22.3 acre portion of the Property upon which residential uses shall be permitted as set forth in Section 3.1.1.2 of this Agreement. The Residential Parcel is described in Exhibit F. Reference to the Property shall mean and include reference to any portion of the Property whether or not such portion is held in common ownership with the remainder of the Property, except as otherwise specifically referred to in this Agreement. 2.25 "Redevelopment Plan" means the Huntington Beach Redevelopment Plan as approved by Ordinance No. 3343 on December 16, 1996. 2.26 "Site"means the land subject to the Original Development Agreement, consisting of the Property and the Hilton Parcel, collectively. 2.27 "Specific Plan"means the Downtown Specific Plan as adopted on the Effective Date. 2.28 "Subsequent Permits" means any and all land use entitlements and permits not included in the Project Approvals which are required by law for development of the Property, including, but not limited to,building permits. 2.29 "Term" means the term of this Agreement, as provided in Section 4.2 of this Agreement. 2.34 "Waterfront" means The Waterfront Hotel, LLC, a California limited liability company. 2.31 "Zoning Ordinance"means the Huntington Beach Zoning and Subdivision Ordinance as it exists on the Effective Date. 3. DEVELOPMENT OF THE SITE 3.1 Land Use Approvals and Covenants 3.1.1 Land.Uses, Densities and Intensities on the Propea. City agrees that during the Term of this Agreement,Developer and its successors and assigns, as permitted by Section 3.1.5 hereof, shall have the right to develop and use the Property in accordance with the land uses, density of development and intensity of development,the zoning, and the development standards, conditions and improvement requirements specified in the Applicable Rules, except as set forth in this section 3.1. 3.1.1.1 Commercial Parcel. Notwithstanding any other provision of law,use of and development on the Commercial Parcel shall conform to the following requirements: 9116198 8 3 has (a) Notwithstanding anything to the contrary contained in the Applicable Rules, to the extent the Project Approvals establish standards more stringent than those in the Applicable Riles, such standards shall apply to development on the Commercial Parcel. (b) Except as set forth in this Agreement,use and development of the Ocean Grand Resort Portion of the Commercial Parcel shall conform to all applicable requirements for that Portion as set forth in the Project Approvals and in the DDA. (c) Developer may construct and use temporary improvements on the Third Hotel Portion of the Commercial Parcel for up to 150 surface parking spaces and the existing tent pavilion, and other uses permitted by Conditional Use Permit No. 98-9, all in conformance with all applicable requirements for that Portion as set forth in the Project Approvals, and in accordance with and subject to the limitations specified in that certain"Parcel C Short Term Lease"to be entered into as defined and provided for in the DDA (the "Interim Use Rights"). (d) Upon termination of the Interim Use Rights, use and development of the Third Hotel Portion of the Commercial Parcel shall conform to Option 1 or 2 for Phase 3 Permanent Use set forth in the Commercial Site Master Plan (see section 2.23.5), subject to the issuance of Subsequent Permits,including,but not limited to, a conditional use permit, coastal development permit, special permits and/or other applicable permits. Subject to the other provisions of this Agreement, and without affecting a pre judgment of such Subsequent Permits, the Parties agree that the City shall act reasonably and cooperatively in the review of any Subsequent Permit, in keeping with the intentions of the parties under this Agreement; and further, that the City's rejection,if at all,of any such Subsequent Permits would,notwithstanding the provisions of Section 4.1.02 of the Specific Plan, be necessarily based on a finding that: (i) the Subsequent Permit is not substantially in compliance with or of the same character as the Project Approvals, or (ii) the design of the proposed project is incompatible with the quality or character of the neighboring commercial uses, or (iii) there is, as a result of the proposed project, a genuine, significant unmitigatible impact to the environment(other than general growth management issues) not previously disclosed, or readily known, at the time of the Project Approvals, or (iv) the proposed project is inconsistent with objectives of the Specific Plan in achieving a development adapted to the terrain and compatible with the surrounding environment, or (v) the Subsequent Permit is inconsistent with the policies of the Coastal Element of the General Plan and the California Coastal Act, or (vi) the Subsequent Permit does not comply with state or federal law. 911b198 9 3 has This Development Agreement finds that the findings set forth in (i) through (iii) above are an appropriate and effective application of the findings (a)through (c) of such Section 4.1.02 in the context of this Project. Nothing in this section shall be deemed to limit the discretion of the Design Review Board, Planning Commission, or City Council pursuant to Section 4.1.01 of the Specific Plan to determine whether or not (a) the project is in conformance with the adopted Design Guidelines for the area; (b) architectural features and general appearance of the proposed development enhance the orderly and harmonious development of the area or the community as a whole; (c) architectural features and complimentary colors are incorporated into the design of all exterior surfaces of the building in order to create an aesthetically pleasing project; (d) particular attention has been given to incorporating signs, including their colors, into the overall design of the entire development in order to achieve uniformity; and(e)vehicular accessways have been designed with landscaping and building variation to eliminate any alley-like appearance. 3.1.1.2 Residential Parcel. Notwithstanding any other provision of law, use of and development on the Residential Parcel shall conform to the following requirements: (a) Density of development on the Residential Parcel shall not exceed a total of two hundred thirty (230) dwelling units. (b) The Agency's expenditure of revenues from the Project earmarked for affordable housing for inclusionary and replacement housing activities will satisfy the Project's affordable housing requirements. (c) No building permit shall be issued for any residential structure on the Residential Parcel until such time as substantial construction has been completed on the Ocean Grand Resort to be constructed on the Commercial Parcel pursuant to the requirements of the DDA. For purposes of this subsection only, the terra."substantial construction" shall be deemed to mean the pouring of foundations for the main Ocean Grand Resort structure. 3.1.2 Special Use and Development Provisions 3.1.2.1 Alcoholic Beverage_Sales and Consumption on the Commercial Parcel. The hotels to be developed on the Commercial Parcel (including the restaurants, lounges, and similar accessory uses located within such hotels) shall be permitted to sell alcoholic beverages for on-premises consumption, subject to the Developer's obtaining and maintaining at all times the necessary liquor license(s) from the California Department of Alcohol and Beverage Control, and - the City's reasonable review of location, type of use, and other similar land-use considerations and economic factors to assure a continued high-quality Project that is compatible with neighboring residential and commercial uses. 3.1.2.2 Dancing and Live Entertainment on the Commercial Parcel. The hotels to be developed on the Commercial Parcel (including the restaurants, lounges, and similar accessory uses located with such hotels)shall be permitted to provide live entertainment and dancing in accordance with the City's ordinances, regulations, rules and official policies in force as of the Effective Date and the City's reasonable review of location, type of use, and other similar factors 9/16/98 10 3�6s to assure a continued high-quality Project that is compatible with neighboring residential and commercial uses. } 3.1.2.3 Parking Requirements for the Commercial Parcel. (a) The Parties agree that parking for the development on the Hilton Parcel has been determined as required by the Original Development Agreement and will have access to an additional 150 spaces in conjunction with an interim use on the Third.Hotel Portion of the Commercial Parcel. Parking for the development on the Ocean Grand Resort Portion of the Commercial Parcel (including guest rooms, lounges, meeting rooms,ball rooms, and guest- serving retail uses) shall be as set forth in the Project Approvals. Parking for the development on the Third Hotel Portion of the Commercial Parcel(including guest rooms, lounges, meeting rooms, ball rooms, and guest-serving retail uses) shall be determined on the basis of the City's parking requirement for hotels of 1.1 parking spaces per guest room, subject to substantiation of the sufficiency of that standard for the specific development on the Third Hotel Portion by a parking demand analysis for that development, If such standard is not substantiated as sufficient for that development, the parking requirement for the Third Hotel Portion may be modified as necessary to provide for the development on that Portion. The Third Hotel Portion shall also include an additional 97 parking spaces to meet peak demands for the Hilton Parcel, based upon the 1998 Waterfront Grand Resort Transportation and Circulation Analysis prepared by LSA Associates,Inc., provided such number may be reduced at the time the Third Hotel Portion is developed pursuant to an updated parking demand analysis of the Hilton Parcel. (b) Resolution of design issues on the Commercial Parcel resulting from parking spaces being less than three(3)feet from columns and walls may be processed through special permits rather than through the variance process. (c) Parking for the Project shall be provided on the Property and shall not be satisfied by providing additional parking along the beach side of Pacific Coast Highway. In addition, City and Developer agree that any loss of parking on the north side of Pacific Coast Highway caused by the Project has been accommodated through the Project Approvals. (d) The Parties agree that any parking loss on the beach side of Pacific Coast Highway which may result from construction of any pedestrian overpass. by the Developer has been accounted for by the City in its proposed South Beach Improvement Project. Pending completion of that project by the City, Developer shall provide any parking lost due to construction of a pedestrian overpass on the Third Hotel Portion of the Commercial Parcel. This obligation shall terminate upon completion of the South Beach Improvement Project or five(5)years from the Adoption Date, whichever occurs first. 3.1.2.4 Oil Wells. As a part of the initial site preparation on the Commercial Parcel, the Developer shall reabandon any existing abandoned oil wells on such Parcel to the then-current standards of the State of California Division of Oil and Gas. As a part of the initial site preparation for the Residential Parcel, the Developer shall reabandon any existing abandoned oil wells on such Parcel to the then-current standards of the State of California Division of Oil and Gas. 9/16/98 3.1.2.5 Continuing Maintenance Obligation. Upon completion of the public improvements required to be constructed by Developer in accordance with this Agreement to the reasonable satisfaction of the City, the City shall accept such improvements. Thereafter, the City shall maintain such improvements at no expense to the Developer, and the Developer shall have no responsibility therefor, except that the Developer shall maintain at its sole cost and expense: (i)the sidewalk and landscaping behind the curb; and(ii) the pedestrian overcrossing(s) of Pacific Coast Highway and Twin Dolphin Drive; and(iii) the median island landscaping in Pacific View Avenue and in Twin Dolphin Drive. A landscape license agreement in the same form as the existing license agreement executed in connection with the Hilton Parcel shall be entered into between the City and Developer for Developer to maintain all landscaping and irrigation within the public parkways and median islands within the Site (except for medians within Pacific Coast Highway and Beach Boulevard), and the two agreements shall be coordinated so that they may be administered as if they were one agreement. 3.1.2.6 Signage. The Developer shall submit for approval by the Design Review Board and shall implement a Planned Signage Program with respect to all signage on the Commercial Parcel prior to installation of any signs on that Parcel. The Developer shall submit for approval by the Design Review Board and shall implement a Planned Signage Program with respect to all signage on the Residential Parcel prior to installation of any signs on that Parcel. 3.1.2.7 Fire Access Lane. Nothing in this Agreement shall be deemed to alter or modify the Fire Lane Access Easement Agreement recorded against the Site on September 1, 1995,as Instrument No.95-0384750 in the Official Records of the Orange County Recorder's Office which applies to a portion of the Third Hotel Portion of the Commercial Parcel. 3.1.3 Vesting of Rights 3.1.3.1 Right to Develop Property. City agrees that during the Term of this Agreement, Developer shall have the right to develop and use the Property in accordance with the land uses, densities and intensities, the zoning, and the development standards, conditions and improvement requirements specified in the Applicable Rules, as established by this Agreement. Notwithstanding the foregoing,the Parties understand and agree that modifications to the Applicable Rules are required to effectuate development standards to govern development of the Residential Parcel to the density permitted by this Agreement, and the City reserves the right to rescind, amend, or otherwise modify any Applicable Rule pertaining to the Residential Parcel, or to implement any new ordinance, resolution, rule, regulation, requirement or official policy pertaining to the Residential Parcel whether or not inconsistent with any Applicable Rule, which the City deems necessary to accomplish that residential development in a manner beneficial to the public health, safety or welfare. 3.1.3.2 Certain Changes Prohibited Without Consent of Developer. Except as otherwise provided in this Agreement, during the Term of this Agreement, the City shall not, as to the Property,without the prior written consent of Developer: (a) change the Applicable Rules or any one thereof so as to prevent or adversely affect development, construction or use of the Property in accordance with such Rules; or (b) apply to the Property any new or amended ordinance, 9/16198 12 resolution, rule, regulation, requirement or official policy that is inconsistent with any Applicable Rule so as to prevent or adversely affect development, construction or use of the Property in accordance with such Rules; or(c) apply to the Property any new or amended ordinance, resolution, rule, regulation, requirement or official policy that requires additional discretionary review or approval for any proposed land use. 3.1.3.3 Ri&ts are Vested. Unless amended or terminated in the manner specified in this Agreement(anal subject to the provisions of this Agreement), Developer shall have the rights and benefits afforded by this Agreement and this Agreement shall be enforceable by Developer and the City notwithstanding any growth control measure or any development moratorium adopted after the Effective Date, or any change in the applicable general or specific plans,zoning, or subdivision regulations which alter or amend the Applicable Rules, or the adoption of any new or amended ordinance,resolution,rule,regulation,requirement or official policy that is inconsistent with any Applicable Rule so as to prevent or materially adversely affect development or use of the Property in accordance with the Applicable Rules. 3.1.3.4 Preemption. Notwithstanding any provision to the contrary contained herein, the City expressly reserves the right to modify any of the Applicable Rules to the extent necessary to comply with applicable federal or state laws, codes or regulations which preempt local jurisdiction including,by way of example, and without limiting the generality of the foregoing, the California Environmental Quality Act, all building,plumbing,mechanical, and similar codes, and any safety regulations. 3.1.3.5 Reservation of Right to Apply Certain Development Moratoria and Utility Service Limitations. Notwithstanding any provision to the contrary contained herein,the City expressly reserves the right to apply to the Property any development moratorium, limitation on the delivery of City-provided utility services, or other generally applicable emergency rule, regulation, law or ordinance affecting land use which(a) is based on genuine health and safety concerns (other than general growth management issues); (b) arises out of a documented emergency situation, as declared by the President of the United States, the Governor of California, or the Mayor or City Council of the City of Huntington Beach; and(c)based upon its terms or its effect as applied, does not apply exclusively or primarily to the Property. 3.1.3.E Reservation of Right to Apply Other Regulatory Measures. The provisions of this Agreement shall not be deemed to affect the right of the City to apply to the Property and to all persons utilizing the Property any generally applicable rule, regulation, law or ordinance which is not inconsistent with the express terms of this Agreement and which does not directly affect the land use or development of the Property. 3.1.3.7 Other Governmental Approvals. The Parties contemplate that development of the Project pursuant to this Agreement shall be subject to the approval of other governmental agencies for those specific portions of such development within the jurisdiction of such agencies. Developer shall be responsible for all costs and expenses pertaining to such approvals, except as otherwise set forth in the DDA. The City agrees to assist the Developer, at no cost or expense to the City (other than overhead and employee staff time), in securing any and all permits which may be required by any other governmental agency. Such assistance may include the 9116198 13 3� City acting as the applicant for an approval,provided no cost or expense to the City shall result from such application except as set forth herein. To the extent that the City is responsible for processing any such approval;the City's processing of such approval shall be subject to this Agreement. 3.1.4 Subsequent Discretionary Approvals 3.1.4.1 Subsequent Entitlement Approval Required. Developer shall be required to obtain the approval by the City of any and all Subsequent Permits. Applications for Subsequent Permits shall be processed by the City in accordance with the procedures existing on the date the application for a Subsequent Permit is submitted and the standards established by Section 3.1.3 of this Agreement. 3.1.4.2 Responsibility of Developer. The obtaining of necessary Subsequent Permits for the development of the Property, and complying with the conditions thereof, shall be the sole responsibility of Developer. 3.1.4.3 Responsibili , for Pang Fees. Developer shall be responsible for paying when due all Development Fees in connection with the approval of any Subsequent Permit at the rates established by this Agreement. 3.1.4.4 Standard of Review. The City shall have the right to disapprove or condition approval of a Subsequent Permit in accordance with the standards applicable to the portion of the Property for which the Subsequent Permit is sought, subject to the vested rights of Developer as set forth in this Agreement. The City shall not disapprove a Subsequent Permit for reasons inconsistent with the provisions of this Agreement, including the Project Approvals referred to herein. Any disapproval by the City shall be in writing and shall state the reasons therefor and the action(s)which Developer is required to take to obtain the City's approval. 3.1.4.5 Reservation of Right to Impose Certain Conditions. In connection with the approval of any Subsequent Permit,the City shall have the right: (a) to impose reasonable conditions on development that are not inconsistent with the terms of this Agreement; and (b) to conduct any additional environmental review required by State law and to impose reasonable conditions to mitigate environmental impacts identified in such additional environmental-review. 3.1.4.6 Construction to be Consistent with City Approvals. All improvements on the Property shall be constructed in accordance with the approved Subsequent Permits. Upon the Developer's request and payment of all City costs therefor, the City may retain a contract plan checker or checkers to enable the City to expedite the processing and review of final building plans and construction drawings, and/or the inspection of construction on the Property. 3.1.4.7 Revisions Requested by Developer. If Developer desires to make any change in a Project Approval or Subsequent Permit after its approval, such proposed change shall be submitted to the City for approval in accordance with this Section 3.1.4. 9/16198 14 3y4a5� 3.1.5 Assignment by Developer 3.1.5.1 City Approval of Assignment Required. Subject to the approval of the City Administrator or his/her designee as provided below, upon written notice submitted to the City not less than thirty(30)days prior to each transfer or assignment, the rights and obligations of Developer as to the Property under this Agreement may be transferred or assigned from time to time during the Term of this Agreement, provided that such transfer or assignment is in accord with an assignment approved by the Agency under the DDA. 3.1.5.2 Submittal of Transfer Documents. Concurrently with the submission of the notice of proposed transfer or assignment of the Property or any portion thereof by Developer under the DDA,Developer shall submit to the City: (a) a request for concurrent assignment of this Agreement; and (b) a fully executed instrument, in form and content reasonably acceptable to the City, pursuant to which the transferee expressly assumes and agrees for the benefit of the City to perform the obligations of Developer under this Agreement applicable to the Property or portion thereof being conveyed; and (c) an acknowledgment, in form and content reasonably approved by the City and executed by the transferee, pursuant to which the transferee acknowledges that the transferee has read and understands this Agreement and all of the provisions hereof 3.1.5.3 Approval of Transfer. Upon approval by the Agency of the transfer of rights under the DDA, the City Administrator or his/her designee shall approve the proposed transfer under this Agreement. If a person or entity transfers or assigns its entire interest in the Property or any portion thereof,such person or entity shall be released from its obligations under this Agreement as to such portion of the Property upon compliance with the provisions of this Section 3.1.5. 3.1.5.4 Obligations in Addition to DDA and Other Agreements. The provisions of this Section 3.1.5 shall be in addition to any obligation of Developer under the DDA or any other lease, license, deed, or other agreement between the Developer and the City or the Developer and the Agency relating to the transfer of any interest in the Property, and nothing in this Section shall be deemed to waive or affect any obligation of Developer established therein. 3.2 Public Improvements and Utilities _ 3.2.1 Installation Obligations 3.2.1.1 The Parties hereby agree that the obligations to install public improvements and utilities necessary for the development of the Commercial Parcel shall be as set forth in the Project Approvals and the DDA, except as set forth in Section 3.1.4.5. Notwithstanding the foregoing, the City shall not issue a certificate of occupancy for the Ocean Grand Resort Hotel until such time as the Developer has completed substantial construction required for Pacific View Avenue and Twin Dolphin Drive to be available for public use as determined by the City Engineer. 3.2.1.2 The obligations of the Parties as to public improvements and utilities necessary for the development of the Residential Parcel are not established by this Agreement but 9116/98 15 3fLa5` shall be determined in connection with the discretionary review processes to be conducted therefor. 3.2.2 Pedestrian Overcrossings. At the Developer's option, Developer shall have the right to construct and install a second pedestrian overcrossing of Pacific Coast Highway in the approximate location shown on the Commercial Site Master Plan for the Project, subject to Developer's obtaining the approval of the California Department of Transportation and further subject to the Developer obtaining from the City any Subsequent Permit required under the Applicable Rules. The City acknowledges that the Developer's right to construct the pedestrian overcrossings was established in the Original Development Agreement which pre-dated Measure C, and consequently, that construction of the pedestrian overcrossings is not subject to Measure C. 3.2.3 EIR Mitigation Measures 3.2.3.1 The Parties hereby agree that the obligations to implement environmental mitigation measures for development on the Commercial Parcel shall be as set forth in the Project Approvals and the DDA. 3.2.3.2 The obligations of the Parties to implement environmental mitigation measures for the development of the Residential Parcel shall be consistent with the EIR. 3.2.3.3 The Parties understand and agree that, if and to the extent required by the California Environmental Quality Act or other applicable law, the City may, at the time of Subsequent Permit review, impose additional measures to mitigate environmental impacts identified in a subsequent or supplemental environmental impact report or negative declaration prepared in connection with a proposed Subsequent Permit. 3.2.4 Dedications and Reservations 3.2.4.1 The portions of the Commercial Parcel to be reserved or dedicated for public purposes pursuant to this Agreement,if any, shall be as set forth in the Project Approvals and the DDA, except as set forth in Section 3.1.4.5. The City shall exercise reasonable best efforts to have the California Department of Transportation vacate an approximately twenty(20) foot wide highway easement along the west side of Beach Boulevard and the intersection of Pacific Coast Highway on a schedule that will not delay Developer's development of the hotel on the Ocean Grand Resort Portion of the Commercial Parcel. Upon completion of such vacation, such property shall be subject to the provisions of this Agreement and the DDA. - 3.2.4.2 The portions of the Residential Parcel to be reserved or dedicated for public purposes, if any, are not established by this Agreement but shall be determined in connection with the discretionary review processes to be conducted therefor. 3.2.4.3 The City shall take such actions as may be necessary to vacate any prior dedications, offers to dedicate and grants of easements that are no longer necessary for the development of the Property in accordance with this Agreement. 9/16/98 16 3.2.4.4 The Parties understand and agree that minor changes, modifications or adjustments to the dedications described in the Project Approvals and the DDA and additional minor dedications may be required as the result of Subsequent Permit review for the Property and shall not constitute an amendment to this Agreement,provided any such changes are consistent with the Applicable Rules. 3.2.5 Improvement Security/Insurance. As a condition of approving a final subdivision map or any future subdivision for all or a portion of the Property, the City may require the furnishing of appropriate and reasonable improvement agreements and security pursuant to any applicable City ordinance, resolution or regulation or California Government Code Sections 66462 and 66499, et seq. Nothing in this Agreement shall be construed as altering or relieving Developer of any obligation imposed pursuant to Government Code Section 66462. In the event public financing is used to fund construction of improvements, the City may also require evidence of compliance with labor standards and insurance required as a standard condition under federal, state or local law at the time of City action on any necessary development permits or any other entitlements for the use and development of the Property pursuant to this Agreement. If the improvements are financed by an assessment district or community facilities district, the improvement security may be released in accordance with Goverment Code Section 66495.5 or similar provisions. 3.2.6 Further Land Use Actions. The Parties acknowledge that subdivisions, boundary line adjustments or similar modifications to the Property may be necessary in the future and are contemplated by this Agreement provided any such changes are consistent with the Applicable Rules, and such actions shall not constitute an amendment to this Agreement. 3.2.7 Utilities. City represents that all City utilities (other than water service for fire flow protection along the Pacific Coast Highway frontage of the Property but otherwise including water, sanitary sewer, and storm drainage) are available at the perimeter of the Property and that the capacities of such utilities are adequate to service the construction and opening for business of the improvements contemplated for the Property,provided that the Project is developed in accordance with this Agreement. 3.3 Development Fees 3.3.1 General Rule. Subject to all applicable laws then in effect, City shall have the right to charge and apply to the Property all Development Fees which are in force and effect on - a uniform city-wide basis at the time such fees are due, subject only to the following: (a) Developer shall not be responsible for paying any new or increased fee or charge to provide or contribute to improvements or services not required to be provided or contributed to by the Developer under the City's ordinances,regulations,rules, and official policies in force as of the Effective Date; and 9/16198 17 (b) The amount of any increased fee or charge after the Effective Date shall not exceed the increase in the reasonable cost of providing the improvement or service for which the fee or charge is imposed. 3.3.2 Park Fees. Notwithstanding the provisions of Section 3.3.1, the Parties acknowledge and agree that park standards for the Site were established by Section 11 of the Original Development Agreement as in place on the Effective Date. The Parties therefore agree that the park acquisition and development fee applicable to the Property shall be that established by Resolution No. 6226 adopted by the City Council on November 19, 1990. 3 A Mortgagee Protection 3.4.1 Encumbrance Permitted. The Parties hereto agree that this Agreement shall not prevent or limit the right of Developer, at its sole discretion, to encumber the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device (collectively "Mortgage") securing financing of the purchase, development or operation of the Property or any portion thereof(including any combination of purchase financing, construction financing,bridge loans,take-out and permanent financing), as provided in this Agreement;provided, however,that any such Mortgage shall be subordinate to this Agreement, and provided further that if any portion of the Property to be dedicated or transferred to the City pursuant to this Agreement shall be subject to any Mortgage, such Mortgage shall be reconveyed prior to the dedication or transfer. The provisions of this Section shall not be deemed to modify or waive any obligation of Developer relating to encumbrances set forth in the DDA. 3.4.2 Requests for Interpretation. The City acknowledges that prospective lenders providing such financing may request certain interpretations and modifications of this Agreement, and agrees upon request, from time to time, to meet with Developer and representatives of such lenders to discuss in good faith any such request for interpretation or modification. City shall not unreasonably withhold its consent to any such requested interpretation or modification which the City determines is consistent with the intent and purposes of this Agreement and protects the interests of City under this Agreement. Any Mortgagee shall be entitled to the following rights and privileges: (a) Neither entering into this Agreement nor a breach of this Agreement shall defeat,render invalid, diminish or impair the lien of any Mortgage made in good faith and for value. - (b) Any Mortgagee which has submitted a request in writing to the City in the manner specified herein for giving notices shall be entitled to receive written notification from City of any default of Developer in the performance of Developer's obligations under this Agreement. (c) If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Developer under the term of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to 9/16/99 18 3 S0s Developer. The Mortgagee shall have the right,but not the obligation,to cure the default during the remaining cure period allowed Developer under this Agreement. (d) Any Mortgagee who comes into possession of the Property or any part thereof pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property or part thereof subject to the terms of this Agreement;provided,however,that such Mortgagee shall not be liable for any defaults or monetary obligations of Developer arising prior to acquisition of title by such Mortgagee; and provided further in no event shall any such Mortgagee or its successors or assigns be entitled to a building permit or occupancy certificate until all fees and other monetary obligations due under this Agreement have been paid to the City and all otherwise applicable conditions to such permit or certificate have been satisfied. 3.5 Provisions Applicable to the Hilton Parcel The Parties agree that the provisions of the Original Development Agreement applicable to the Hilton Parcel have been satisfied, and that all provisions of the Original Development Agreement were terminated as to such Parcel upon issuance of the Certificate of Completion for said Parcel except as set forth therein. In accordance with the foregoing, the following provisions shall be the sole provisions of this Agreement applicable to the Hilton Parcel. (a) Waterfront(and permitted successors and assigns) shall be entitled to use and occupy the Hilton Parcel in accordance with the Master Site Plan, conditional use permit, coastal development permit and tentative tract map approved for that Parcel prior to or concurrently with the Effective Date,and the development plans and permits secured for such Parcel after the Effective Date but prior to the date of this Agreement. (b) The hotel on the Hilton Parcel (including the restaurants, lounges, and similar accessory uses located within such hotel) shall be permitted to sell alcoholic beverages for on- premises consumption subject to Waterfront's obtaining the necessary liquor license(s) from the California Department of Alcohol and Beverage Control. (c) The hotel on the Hilton Parcel (including the restaurants, lounges, and similar accessory uses located within such hotel) shall be permitted to provide live entertainment and dancing in accordance with the City's ordinances,regulations,rules and official policies in force as of the Effective Date. 4. GENERAL PROVISIONS 4.1 Recordation As provided in Section 65868.5 of the Development Agreement Act, the City shall cause a copy of this Agreement to be recorded with the County Recorder within ten(10) days following the Adoption Date. Any recording costs shall be paid by Developer. 9/16198 19 .3 �aS 4.2 Term 4.2.1 Commencement of Team. This Agreement shall commence upon the Adoption Date. 4.2.2 Termination of Agreement. 4.2.2.1 The provisions of this Agreement applicable to the Hilton Parcel shall terminate fifty (50) years from the Adoption Date. 4.2.2.2 Except as set forth in Sections 4.2.3, 4.2.4, or 4.2.5, the provisions of this Agreement shall terminate as to the Ocean Grand Resort Portion of the Commercial Parcel, the Third Hotel Portion of the Commercial Parcel, and the Residential Parcel on the date(s)on which the Agency issues its Certificate(s) of Completion for the improvements to be constructed on and with respect to said segments of the Property under the DDA. 4.2.3 Continuation of Specific Provisions. 4.2.3.1 Notwithstanding the termination of any other provisions of this Agreement as to a segment of the Property pursuant to Section 4.2.2.2,those provisions of Section 3.1 of this Agreement which provide for the use of the Commercial Parcel for hotel and accessory uses shall remain in effect as to such segment for a period of fifty(50)years from the Adoption Date. 4.2.3.2 Notwithstanding the termination of any other provision within this Agreement or of this Agreement in its entirety, the terms of Section 4.3.4 of this Agreement shall survive this Agreement and continue in full force and effect for the term of the respective leases for each of the hotels existing or to be constructed at the Site. 4.2.4 Termination for Failure to Obtain Certificate of Completion. If a Certificate of Completion is not issued for a segment of the Property within the time periods specified in this section 4.2.4,this Agreement shall terminate as to such segment of the Property: ten(10)years from the Adoption Date for the Ocean Grand Resort Portion of the Commercial Parcel; ten (10) years from the Adoption Date for the Residential Parcel; and fifteen(15) years from the Adoption Date for the Third Hotel Portion of the Commercial Parcel. Upon termination of this Agreement as to a segment of the Property for failure to obtain a Certificate of Completion within the time specified in this section for such segment, all rights and obligations of the Parties under this Agreement as to such segment of the Property shall terminate. 4.2.5 Termination for Default. Subj ect to the notice and cure provisions set forth in Section 4.5.2, the City shall have the right to terminate this Agreement as to the Property and the rights of Developer hereunder in the event(i)Developer defaults and fails to cure such default within the respective curative period; or (ii) Developer fails to complete substantial construction on the Ocean Grand Resort within the time as set forth in Section 3.1.1.2 (d) and as defined therein; or (iii) Developer fails to diligently complete construction on the Ocean Grand Resort once such construction is commenced. 9116198 20 4.2.6 Extension of Term of Tentative Tract Map and Other Project Approvals and Subsequent Permits. Pursuant to California Government Code Section 66452.6(a), the term of Tentative Tract Map No. 15535 shall automatically be extended until the earlier of(i) the date on which the final map or all of the partial final maps for said Tract are recorded, or (ii) as to any portion of the Tract for which a final map has riot been recorded,the termination of this Agreement as to all segments of the Property pursuant to any provision of this Section 4.2. In addition, to the maximum extent permitted by law, the term of each of the Project Approvals and Subsequent Permits automatically shall be extended until the earlier of(i) the date on which such Permit(s) or Approval(s)have been fully performed,or(ii) as to any Permit or Approval which has not been fully performed,the date on which this Agreement terminates as to all segments of the Property pursuant to this Section 4.2. 4.3 Cooperation and Implementation 4.3.1 Implementation. City represents that it will cooperate with Developer to the fullest extent reasonable and feasible to implement this Agreement. Upon satisfactory completion by Developer of all of its preliminary actions and payments of appropriate fees, City shall promptly commence and diligently proceed to complete all steps necessary for the implementation of this Agreement in accordance with the terms of this Agreement, including, but not limited to, the processing and checking of any and all Subsequent Permits, agreements, covenants and related matters required under the conditions of this Agreement,building plans and specifications, and any other plans necessary for the development of the Property, requests for inspections and certificates of occupancy filed by or on behalf of Developer. Developer shall, in a timely manner,provide City with all documents, plans and other information necessary for City to carry out its obligations hereunder. 4.3.2 Relocation of the Beach Maintenance Facility. Developer and the City shall mutually cause the City's Beach Maintenance Facility to be relocated and in operation prior to the demolition of the existing Beach Maintenance Facility. The City will cause the Beach Maintenance Facility to be relocated off of the Property as expeditiously as feasible so as not to interfere with Developer's schedule of development once grading permits have been issued for the Ocean Grand Resort Portion of the Commercial Parcel. Upon completion of such relocation,Developer shall have the responsibility to demolish and clear the City's existing Beach Maintenance Facility from the Property. 4.3.3 Cooperation. In addition to any other requirements of this Agreement,to help assure a continued high-quality Project compatible with neighboring residential, commercial and recreation uses, the City agrees to make its best effort to undertake the actions set forth in this Section 4.3.3, provided such actions shall not result in any cost or expense to the City(other than overhead and employee staff time). 4.3.3.1 The City agrees to work with Developer to obtain the approvals necessary to construct the pedestrian overpass, including, but not limited to, complying with the City's obligations set forth in Section 3.1.3.7. 9Il N98 21 4.3.3.2 The City shall cooperate with respect to an extension of Beach Concession 5 at 21351 Pacific Coast Highway, also known as the Beach Cabana, so as to replace the existing month-to-month agreement between the City and Developer with an agreement with a five (5) year initial term, three (3) additional five (5) year options, and an additional five (5)year option for each Seventy Five Thousand Dollars ($75,000.00) in capital improvements installed by Developer at such site, not to exceed a maximum term of forty(40) years. 4.3.3.3 The City hereby grants Developer a right of first refusal to lease or occupy Beach Concession 6 at 21529 Pacific Coast Highway, also known as the Beach Hut, upon expiration of the existing agreement for such site,provided that any such lease or occupancy right shall be on standard City terms and subject to compliance with any applicable City procedure for the award of concessions. 4.3.3.4 The City will cooperate with Developer in processing a proposal to form a community facilities district("CFD") and issue CFD bonds to assist in the public financing for the Project, pursuant to the terms of the DDA. 4.3.4 Restriction on Beach Use (a) City is one of the owners in fee of that certain real property located in the City of Huntington Beach, California, and bounded on the north by the right-of-way line for Pacific Coast Highway, on the east by Huntington Beach State Park, on the south by the mean high tide line of the Pacific Ocean, and on the west by an imaginary line extending southward from the westerly side of the intersection of Pacific Coast Highway and Huntington Street (hereinafter referred to as the"City Beach Property"). The City Beach Property is more particularly described in Exhibit"G" attached hereto and incorporated herein by this reference. (b) Developer will be constructing,operating,and maintaining on the Site ocean-oriented, visitor-serving commercial facilities which are designed to take full advantage of the existing ocean views across Pacific Coast Highway. Developer desires to obtain assurances from City that such views will not be obstructed during the term of the respective leases for each of the hotels existing or to be constructed at the Site. (c) Pursuant to the California Coastal Act of 1976, as amended(Public Resources Code Section 30000, et seq.), City has prepared and the California Coastal Commission has certified a Local Coastal Plan(hereinafter the"LCP") as part of the Local Coastal Program. The LCP requires"Preservation of as much beach sand area as possible in order to accommodate future levels of beach attendance." (LCP, Section 2.3) The LCP further establishes as a policy the "increased numbers of hotel/motel rooms and restaurants in the Coastal Zone." (Id., at Section 3.3.) The LCP designates the entire City Beach Property for recreational use in which the "principal permitted uses . . . are limited to open sand areas, beach related recreational activities, and under certain conditions, parking lots, concessions and camping." (Id., at Figure 9.11 and Section 9.2.5.) The LCP further"prohibits development of permanent above-ground structures on the beach sand area" on the City Beach Property with the exception of lifeguard towers and other public safety facilities, public restrooms and beach concession stands when located imrnediately adjacent to 9I1 6)98 22 f paved parking or access areas, fire rings, volleyball nets, bike trails, bike support facilities, and handicapped access. Finally, the LCP "prohibits expansion of parking facilities that would result in the loss of recreational sand area . . ." (Id., at Section 9.5.1.) (d) The entire City Beach Property is located in District Eleven of the Specific Plan, which is designated for beach-related open space and recreational uses. District Eleven"is intended to preserve and protect the sandy beach area within the(Downtown) Specific Plan boundaries while allowing parking and auxiliary convenience uses." (Specific Plan, Section 4.13) Pursuant to the Specific Plan, the only uses and structures permitted on the City Beach Property are access facilities,basketball courts,beach concession stands at intervals no closer than one thousand(1,000) feet and limited to two thousand five hundred(2,500) square feet per building, bicycle and jogging trails and support facilities, fire rings, lifeguard towers and other structures necessary for health or safety,paddleboard courts, surface parking lots or public transit facilities that will not result in the loss of recreational sand areas, provided that any tiered parking shall be designed so that the top of the structures including walls, etc., are located a minimum of one foot below the maximum height of the adjacent bluff, park offices, playground equipment, public restrooms,public dressing rooms or showers, shoreline construction that may alter natural shoreline process( such as groins, cliff retaining walls, pipelines, and outfalls that are designed to eliminate adverse impacts on local shoreline sand supply), and volleyball net supports. (e) City and Developer desire to ensure the long-term maintenance of the City Beach Property for beach-related uses consistent with the LCP and Specific Plan,to promote the development and operation of high-quality visitor-serving commercial uses on the Site, and to provide a long-term source of revenue to the City to enhance the City's implementation of the LCP and Specific Plan or for other public purposes as determined by the City in its sole discretion. (f) During the term of the respective leases for each of the hotels existing or to be constructed at the Site, the City covenants not to construct or maintain or permit to be constructed or maintained any improvements or structures on the City Beach Property excepting only the following: access facilities,basketball courts,beach concession stands at intervals no closer than one thousand (1,000) feet and limited to two thousand five hundred (2,500) square feet per building, bicycle and jogging trails and support facilities, fire rings, lifeguard towers and other structures necessary for health or safety,paddleboard courts,parking lots and public transit facilities that will result in the loss of recreational sand area and that will not extend above the existing grade of the adjacent stretch of Pacific Coast Highway, park offices, playground equipment, public restrooms,public dressing rooms or showers, shoreline construction that may alter natural shoreline process (such as groins, cliff retaining walls, pipelines, and outfalls that are designed to eliminate adverse impacts on local shoreline sand supply), volleyball net supports, and pedestrian overcrossing(s) of Pacific Coast Highway. (g) During the term of the respective leases for each of the hotels existing or to be constructed at the Site, the City covenants to maintain and operate at the City Beach Property the beach parking accessible to the public in substantially the same amount of available spaces as exists as of the Adoption Date. 23 9116198 3 fo5" (i) During the term of the respective leases for each of the hotels existing or to be constructed at the Site,the City covenants not to allow the following uses on the City Beach Property without first giving sixty(60) days prior written notice to the Hotel Operator(s) of its intent to process a permit to allow: (i) Events which generate noise,such as,but not limited to,racing or operation of cars,motorcycles, go-karts,boats,personal watercraft,recreational vehicles or other similar equipment,use of amplified music, or use of a public address systems (except when used in conjunction with normal police or marine safety functions); (ii) Sale of food or beverages, or rental or sale of any products or services, other than those sales or rentals conducted on the premises of the beach concession stands within the City Beach Property; (iii) Events, meetings, gatherings, competitions, tournaments, or contests where the observation of same is not free and open to the general public or which does not primarily involve entertainment, sports or recreational activities; (iv) Events which in any way restrict the access to or use of the pedestrian overcrossing(s)to be constructed over Pacific Coast Highway at the Site and direct access through the parking lot to the beach from such pedestrian overcrossing(s); (v) Events which together with staging, storage, support services and anticipated parking generated by such events, occupy more than thirty three percent (33%) of the City Beach Property; (vl) Events which occur in excess of five (5) consecutive days in duration or in excess of a total of thirty(30) days per year; (vii) Tents,balloons, flags,bleachers, seating, scaffolding or other temporary structures which wholly or partially impede the view of the ocean or sand from any of the hotels or their courtyards; (viii) Sale,or exhibition for the purpose of sale,of cars,motorcycles, go-karts,boats, personal watercraft,recreational vehicles or other similar equipment; (ix) Events and/or structures that would obstruct the view of the ocean from the hotels or their courtyards, or would materially alter the local beach environment. (i) The City has established a procedure to approve all specific events on the beach and will provide adequate notice to the Hotel Operator(s) and to permit the Hotel Operators(s)to consult with the City's Specific Events Committee not less than sixty(60) days prior to the Committee's consideration of approval of a permit for potential uses or activities on the City Beach Property. The Hotel Operator(s) may appeal any permit approved by the Specific Events Committee to the City Council by filing the appeal in writing within ten(10) days after the approval 9/16/98 24 3y�S of the permit by the Specific Events Committee. If a specific event permit is appealed, the Specific Events Committee shall not issue the permit until such time as the City Council has acted on the appeal. 4.4 Legal Action 4.4.1 Cooperation in Legal Action. In the event of any legal action instituted by a third party (not a Party to this Agreement) or any governmental entity or official(other than the City or an official of the City), challenging the validity of any provision of this Agreement, the Project Approvals, any Subsequent Permit, or any City action relating thereto (collectively, the "Approvals"), the Parties hereby agree to cooperate in defending said action; provided, however, Developer shall indemnify, defend (by counsel reasonably acceptable to City), and hold harmless City from all litigation expenses, including reasonable attorneys' fees and costs, arising out of any legal action instituted by such third party (not a Party to this Agreement), or other governmental entity or official(other than City or an official of the City) challenging any of the Approvals. City shall promptly notify Developer of any such action and City shall cooperate in the defense thereof. 4.4.2 Effect on Development. The filing of any lawsuit(s)by a third party(not a Parry to this Agreement) against the City relating to this Agreement or to other development issues affecting the Project shall not delay or stop the processing or issuance of any Permit or other authorization necessary for development of the Project, unless such delay is legally required. 4.5 Enforceability 4.5.1 De cult. Subject to Section 4.5.2, failure by any Party to perform any term or provision of this Agreement required to be performed by such Party shall constitute an event of default("Event of Default"). For purposes of this Agreement, a Party claiming another Party is in default shall be referred to as the"Complaining Party," and the Party alleged to be in default shall be referred to as the"Party in Default." A Complaining Party shall not exercise any of its remedies as the result of such Event of Default unless such Complaining Party first gives notice to the Party in Default as provided in Section 4.5.2, and the Party in Default fails to cure such Event of Default within the applicable cure period. 4.5.2 Procedure Regarding_Defaults. 4.5.2.1 Notice Required. The Complaining Party shall give written notice of default to the Party in Default, specifying the default complained of by the Complaining Party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. 4.5.2.2 Right to Cure. The Party in Default shall diligently endeavor to cure, correct or remedy the matter complained of, provided such cure, correction or remedy shall be completed within the applicable time period set forth herein after receipt of written notice (or such additional time as may be deemed by the Complaining Party to be reasonably necessary to correct the matter). 9116/98 25 3Y6� 4.5.2.3 Delay not a Waiver. Any failures or delays by a Complaining Party in asserting any of its rights and remedies as to any Event of Default shall not operate as a waiver of any Event of Default or of any such rights or remedies. Delays by a Complaining Party in asserting any of its rights and remedies shall not deprive the Complaining Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or enforce any such rights or remedies. 4.5.2.4 Time to Cure. If an Event of Default occurs, prior to exercising any remedies, the Complaining Party shall give the Party in Default written notice of such Event of Default. If the Default is reasonably capable of being cured within thirty (30) days, the Party in Default shall have such period to effect a cure prior to exercise of remedies by the Complaining Party. If the nature of the alleged Default is such that it cannot practicably be cured within such 30 day period, the cure shall be deemed to have occurred within such 30 day period if(i) the cure is commenced at the earliest practicable date following receipt of the notice; (ii) the cure is diligently prosecuted to completion at all times thereafter; (iii) at the earliest practicable date (in no event later than 30 days after the curing Parry's receipt of the notice), the curing Parry provides written notice to the other Party that the cure cannot practicably be completed within such 30 day period; and(iv) the cure is completed at the earliest practicable date. In no event shall the Complaining Party be precluded from exercising remedies if a Default is not cured within one hundred eighty (180) days after the first notice of default is given. 4.5.2.5 Termination of Agreement. Subject to the foregoing, if a Party in Default fails to cure an Event of Default in accordance with the foregoing, the Complaining Party, at its option, may terminate this Agreement, and/or institute legal proceedings pursuant to this Agreement. 4.5.2.6 Default during Annual Review. Without limitation, evidence of an Event of Default may arise in the course of the regularly scheduled annual review described in Section 4.5.3, below. 4.5.3 Annual Review 4.5.3.1 Responsibilities of the„Parties. The Director shall, at least every twelve (12) months during the term of this Agreement,review the extent of good faith substantial compliance by Developer with the terms of this Agreement. Subject to the notice and cure procedure set forth in Section 4.5.2, and the procedure set forth in Section 4.5.3.2, this annual review may result in amendment or termination of this Agreement,provided a default has been established under the terms of this Agreement. Pursuant to Government Code Section 65865.1, as amended, Developer shall have the duty to demonstrate its good faith compliance with the terms of this Agreement at such annual review. The Parties recognize that this Agreement and the documents incorporated herein could be deemed to contain many requirements (i.e., construction standards, landscape standards, etc.) and that evidence of each and every requirement would be a wasteful exercise of the Parties'resources. Accordingly,Developer shall be deemed to have satisfied its duty of demonstration if it presents evidence satisfactory to the City of its good faith and substantial compliance with the major provisions of this Agreement, including information concerning the 9/16198 26 3�'QS numbers, types, densities, heights and sizes of structure completed and of any reservations and dedications to the City. The costs of any actions required of Developer in order to comply with this Agreement, as the result of such annual review or otherwise,shall be the responsibility of Developer. 4.5.3.2 Procedure for Annual Review. The annual review shall be conducted in accordance with the provisions of Section 246.14 of the Zoning Ordinance. 4.5.3.3 Result of Annual Review. If the City Council determines on the basis of the evidence that the Developer has not complied with the terms and conditions of this Agreement, the City shall have such remedies for default as are set forth in Section 4.5.2. A City Council determination that Developer has not complied with any term or condition of this Agreement shall be a final administrative determination of such matter. Nothing in this Agreement shall be deemed a waiver of Developer's right to challenge judicially a determination of the City Council that the Developer is in default. 4.5.3.4 Failure to Conduct Review. Failure of the City to conduct timely a periodic review pursuant to this Section 4.5.3 shall not in any manner invalidate this Agreement,nor shall any such failure in any way diminish, impede, or abrogate the rights and privileges of Developer or the City or the responsibilities or obligations of Developer or the City under this Agreement, nor shall such failure affect or implicate in any manner any term or condition of the DDA. 4.5.4 Institution of Legal Action. Subject to notice of default and opportunity to cure under Sections 4.5.1 and 4.5.2, and subject further to the limitation on remedies set forth in Section 4.5.5,in addition to any other rights or remedies, any Party to this Agreement may institute legal action to cure, correct or remedy any default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, or to obtain any other remedies consistent with this Agreement. 4.5.5 Remedies. The Parties would not have entered into this Agreement without the limits on damages under this Agreement set forth herein. Moreover, the City would not have entered into this Agreement if Developer had not acknowledged that a reasonable relationship exists between all exactions imposed and all consideration referenced in this Agreement and the impacts of the development of the Project upon the community. Accordingly, the Parties agree that each of the Parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, subject to the following: (a) The City and all persons acting on behalf of the City shall not be liable in damages to Developer, or to any successor in interest, or to any other person. Subject to the reservation of the reserved rights and remedies described in Section 4.5.5(e), Developer covenants not to sue for monetary damages or claim any monetary damages: (i) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or 9116198 27 314�,_ (ii) For the taking, impairment or restriction of any property right or interest as the result of or arising under or pursuant to this Agreement,but excluding claims based upon applicable obligations of the City acting in its governmental capacity and not as a Party to this Agreement. (b) Developer shall not be liable-in monetary damages to City, or to any person acting on behalf of City, and City covenants not to sue for damages or claim any monetary damages: (i) For any breach of this Agreement; (ii) Provided,however,that City reserves the right to sue for any monetary sums due City for any Development Fee, and any sums payable by Developer to City pursuant to Section 4.4.1 or Section 4.13 which Developer fails to pay, including, without limitation, all litigation costs, including reasonable attorney's fees, incurred as the result of Developer's failure to defend City, its officers, agents, attorneys, employees and representatives which Developer is obligated to defend pursuant to Section 4.4.1 or Section 4.13. (c) The Parties acknowledge that, except as provided in Section 4.5.5(b)(ii), above,money damages and remedies at law generally are inadequate and that specific performance or writ of mandate is the exclusive remedy for the enforcement of this Agreement and should be available to all Parties for the following reasons: (i) Money damages are unavailable against City, or against Developer except as provided above; (ii) Due to the size,nature and scope of the development on the Property, it will not be practical or possible to restore the Property to its preexisting condition once implementation of this Agreement has begun. After such implementation, Developer may be foreclosed from other choices it may have had to utilize the Property and provide for other benefits. Developer has invested significant time and resources and performed extensive planning and processing of such development in agreeing to the terms of this Agreement, and will be investing even more significant time and resources in implementing such development in reliance upon those terms, and it will not be possible to determine the sum of money that would adequately compensate Developer for such efforts. By the same token, City will have invested substantial time and resources and will have permitted irremediable changes to the land and increased demands on the surrounding infrastructure and will have committed, and will continue to commit, to development in reliance upon the commitment to provide infrastructure and related improvements and other exactions to meet the needs of the proposed development and to mitigate its effects on the area and upon City and the public at large, all in reliance upon the terms of this Agreement, and it would not be possible to determine a sum of money which would adequately compensate City for such undertakings. For this reason, the Parties hereto agree that if any Party fails to carry out its obligations under this Agreement, an injured Party shall be entitled to non-damages remedies, including the remedy of specific performance of this Agreement. 2 9A 6/98 (d) Except for judicial review of non-damages remedies, including the remedy of specific performance of this Agreement or writ of mandate to enforce this Agreement, Developer, for itself and its successors and assigns, hereby releases the City, its officers, agents, attorneys, employees and representatives, from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown,present or future, including, but not limited to, any claim or liability based or asserted pursuant to Article 1, Section 19 of the California Constitution,the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any liability or damage whatsoever upon the City because it entered into the Original Development Agreement or this Agreement, or because of the terms of the Original Development Agreement or this Agreement. (e) Nothing in this Agreement shall be deemed to waive or limit any right or remedy that any Party would otherwise have against any other in the absence of this Agreement. 4.5.6 DDA Not Affected. The procedures and remedies set forth in this Section 4.5 shall not be deemed to implicate or affect in any way any provisions in the DDA pertaining to default of that agreement. 4.6 Notices All notices or other communications required hereunder shall be in writing and shall be personally delivered(including by means of professional messenger service), or sent by registered or certified mail, postage prepaid, return receipt required, or by electronic facsimile transmission followed by delivery of a"hard"copy, and shall be deemed received on the date of receipt thereof. Unless otherwise indicated in writing, such notice shall be sent addressed as follows: If to the City: Ray R. Silver City Administrator City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 With a copy to: Gail Hutton City Attorney City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Z 9116198 3; . If to Developer: Mayer Financial, Ltd. c/o The Robert Mayer Corporation 660 Newport Center Drive, Suite 1050 Newport Beach, California 92660 Attn: Robert L. Mayer and Stephen K. Bone With a copy to: Jeffrey M. Oderman Rutan and Tucker 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626 If to Waterfront: The Waterfront Hotel, LLC c/o The Robert Mayer Corporation 660 Newport Center Drive, Suite 1050 Newport Beach, California 92660 Attn: Robert L. Mayer and Stephen K. Bone With a copy to: Jeffrey M. Oderman Rutan and Tucker 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626 4.7 Termination 4.7.1 Expiration of Term. As to the Site and all of the rights of Developer and Waterfront hereunder, and except as otherwise provided in this Agreement,this Agreement shall be deemed terminated and of no further effect upon the expiration of the Tenn of this Agreement as set forth in Section 4.2. 4.7.2 Effect of Termination. 4.7.2.1 The Hilton Parcel. Upon the termination of this Agreement as to the Hilton Parcel as set forth in Section 4.2.2.1,neither Waterfront nor City shall have any further right or obligation under this Agreement with respect to the Hilton Parcel except with respect to (i) any obligation to have been performed prior to such termination; or(ii) any default in the performance of the provisions of this Agreement which has occurred prior to such termination; or (iii) any obligations which are specifically set forth as surviving this Agreement. 9 16198 30 3�05 4.7.2.2 The Property. Upon the termination of this Agreement as to the Property pursuant to Section 4.2.2.2, Section 4.2.4 or Section 4.2.5,neither Developer nor City shall have any further right or obligation under this Agreement with respect to the Property except with respect to (i) any obligation to have been performed prior to such termination; or(ii) any default in the performance of the provisions of this Agreement which has occurred prior to such termination; or(iii) any obligations which are specifically set forth as surviving this Agreement. 4.7.2.3 No Effect on the DDA. Termination of this Agreement shall not affect any rights or obligations established by the DDA except as specifically set forth therein,if any. 4.8 Na Third Party Beneficiaries This Agreement is made and entered into for the sole protection and benefit of the Parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement. 4.9 Time of Essence Time is of the essence for each provision of this Agreement of which time is an element. 4.10 Modification, Amendment or Extension Subject to any notice and hearing requirements imposed by law, this Agreement may be modified, amended and/or extended from time to time by mutual written consent of the City and Developer as to the Property or by mutual written consent of the City and Waterfront as to the Hilton Parcel in the same manner as its adoption by ordinance as set forth in Government Code Sections 65867, 65867.5 and 65868 and the Approval Ordinance. 4.11 Operating Memoranda The provisions of this Agreement require a close degree of cooperation between the City and Developer and development of the Property hereunder may demonstrate that refinements and clarifications are appropriate with respect to the details of performance of the City and Developer. If and when, from time to time,during the term of this Agreement,the City and Developer agree that such clarifications are necessary or appropriate, the City and Developer shall effectuate such clarifications through operating memoranda approved by the City and Developer, which, after execution, shall be attached hereto as addenda and become a part hereof,and may be further clarified from time to time as necessary with future approval by the City and Developer. No such operating memoranda shall constitute an amendment to this Agreement requiring public notice or hearing. The Director, in consultation with the City Attorney, shall be authorized to make the determination on behalf of the City whether a requested clarification may be effectuated pursuant to this Section 4.11 or whether the requested clarification is of such a character to constitute an amendment hereof pursuant to Section 4.10 above. The Director shall be authorized to execute any operating memoranda hereunder on behalf of the City. Sri 6/98 31 3� 4.12 Conflicts of Law 4.12.1 Conflict with State or Federal Laws. In the event that state or federal laws or regulations enacted after the Adoption Date of this Agreement prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans,maps or permits approved by the City which changes render such plans,maps or permit inconsistent with this Agreement, (a) the Party prevented from performance shall provide the other Party with written notice of such state or federal restriction and a statement of the conflict with the provisions of this Agreement, and (b) Developer and the City staff shall, within thirty (30) days, meet and confer in good faith in a reasonable attempt to modify this Agreement,but only to the minimum extent necessary to comply with such federal or state law or regulation. Thereafter, regardless of whether the Parties reach an agreement on the effect of such law or regulation upon.this Agreement,the matter shall be scheduled for hearing before the City Council. Ten.(10)clays' written notice of such hearing shall be given, pursuant to Government Code Section 65854.5. The City Council, at such hearing, shall determine the exact modification or suspension which shall be necessitated by such federal or state law or regulation. Developer, at the hearing, shall have the right to offer oral and written testimony. Any modification or suspension shall be taken by the affirmative vote of not less than a majority of the authorized voting members of the City Council. Any suspension or modification may be subj ect to judicial review. 4.12.2 Cooperation in Securing Permits The City shall cooperate with Developer in the securing of any permits which may be required as a result of such modifications or suspensions. 4.13 Indemnity 4.13.1 Developer to Indemnify. Developer agrees to and shall defend, indemnify and hold harmless the City, and its officers, agents, attorneys, employees and representatives from liability for damage or claims for damage for personal injury including death and claims for property damage which may arise from the acts of Developer or those of its contractors, subcontractors, agents, employees, or other persons acting on its behalf in connection with the Project. 4.13.2 Application to Damages. This indemnification and hold-harmless agreement applies to all damages and claims for damages suffered or alleged to have been suffered by reason of the activities and development referred to in this Agreement,regardless of whether or not the City prepared, supplied, or approved plans or specifications, or both, for such activities or development, excepting damages caused by the negligence or willful misconduct of the City. 4.14 Waiver No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought and referring expressly to this Section. No waiver of any right or remedy in respect of any occurrence or event shall be deemed a waiver of any right or remedy in respect of any other occurrence or event. 9/I6/98 32 3�S 4.15 Successors and Assigns Except as expressly provided to the contrary in this Agreement, the burdens and obligations of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement and all successors in interest to the Site or any portion thereof or any interest therein, and shall be covenants running with the land. 4.16 Governing State Law This Agreement shall be construed in accordance with the laws of the State of California. 4.17 Constructive Notice and Acceptance Every person who now or hereafter owns or acquires any right, title or interest in or to any portion of the Site is and shall be conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Site. 4.18 Statement of Compliance Within thirty (30) days following any written request, in accordance with the notice provisions of this Agreement,which either Parry may make from time to time, the other Party shall execute and deliver to the requesting Party a statement certifying that: (i) this Agreement is unmodified and in full force and effect or, if there have been modifications hereto, that this Agreement is in full force and effect, as modified, and stating the date and nature of such modifications;(ii)there are no current uncured defaults under this Agreement or specifying the dates and nature of any such defaults; and (iii) any other information reasonably requested. The failure to deliver such statement within such time shall be conclusive upon the Party which fails to deliver such statement that this Agreement is in full force and effect without modification except as may be represented by the requesting Parry and that there are no uncured defaults in the performance of the requesting Party. Said statement(s) shall be in the form reasonably satisfactory to the City, Developer, Waterfront, and to any purchaser, lender, title company, governmental agency, or other person reasonably requesting such statement(s) in connection with sale, use, development, construction, financing or marketing of the Site or segment thereof. The City, Developer, and Waterfront, for their own respective uses, shall also be entitled to obtain a statement of compliance at any reasonable time. Developer shall reimburse the City for all costs reasonably incurred by City in preparing a statement of compliance, including, without limitation, reimbursement for City staff time required for such preparation. 4.19 Covenant of Good Faith and Fair Dealing No Party shall do anything which shall have the effect of harming or injuring the right of the other Party to receive the benefits of this Agreement. 9/l 6/98 33 31111's 4.20 Covenant of Cooperation Developer and the City shall cooperate with and assist each other in the performance of the provisions of this Agreement, including assistance in obtaining permits for the development of the Property which may be required from public agencies other than the City. Developer reserves the right to challenge any ordinance, measure, moratorium or other limitation in a court of law if it becomes necessary to protect the development rights vested in the Property pursuant to this Agreement. 4.21 Further Actions and Instruments The Parties to this Agreement shall cooperate with and provide reasonable assistance to the other Parties to the extent contemplated in the performance of all obligations under this Agreement and the satisfaction of the conditions of the Agreement. Upon the request of any Party, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. 4.22 Section Headings All Article and Section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. 4.23 Enforced Delay (Force Majeurel 4.23.1 Force Majeure Defined. In addition to specific provisions of this Agreement, performance by any Party hereunder shall not be deemed to be in default where delays or defaults are due to war, insurrection, strikes,walkouts, riots, floods, earthquakes, fires, casualties, acts of God, enactment of conflicting state or federal laws or regulations (but only if the Party claiming delay complies at all times with the provisions of this Agreement pertaining to such conflicting laws), litigation brought by any third party (not a Party to this Agreement), or similar bases for excused performance due to causes beyond the control of and without the fault of the Party claiming an extension of time to perform. 4.23.2 Notice Rpquirement. An extension of time for any such cause (a "Force Majeure Delay") shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Parties within thirty (30) days of knowledge of the commencement of the cause. Notwithstanding the foregoing, none of the foregoing events shall constitute a Force Majeure Delay unless and until the Party claiming such delay and interference delivers to the other Party written notice describing the event, its cause, when and how such Party obtained knowledge, the date the event commenced,and the estimated delay resulting therefrom. Any Party claiming a Force Majeure Delay shall deliver such written notice within thirty(30) days after it obtains actual knowledge of the event. Times of performance under this Agreement may also be extended in writing by the City. 9/16198 34 4.23.3 Exception. Notwithstanding the first sentence of Section 4.23.2,the following shall apply: (i) Developer shall be entitled to a Force Majeure Delay for a period longer than the period of enforced "delay if the City Council determines that such longer period is reasonably required; and(ii)Developer shall be entitled to a Force Majeure Delay notwithstanding the fact that Developer may not have given timely notice to the City, if the City Council determines that such Force Majeure Delay is reasonably required. 4.24 Emergency Circumstances 4.24.1 Authority to Modify Agreement. If, as the result of specific facts, events or circumstances, the City believes that a severe and immediate emergency threat to the health or safety of the City or its residents, meeting the requirements of Section 4.24.2, requires the modification, suspension or termination of this Agreement,the City will, after reasonable notice to Developer and Waterfront(in light of all the circumstances),hold a hearing on such facts, events or circumstances, at which Developer and Waterfront shall have the right to address the City Council. The City shall have the right to modify,suspend or terminate this Agreement,in whole or in part, if, following such hearing,the City Council determines that such modification, suspension or termination is required in order to protect the health and safety of the City and its residents. Nothing in this Agreement shall be deemed a waiver of Developer's or Waterfront's right to judicially challenge a determination by the City Council pursuant to this Section 4.24.1 or Section 3.1.3.5. 4.24.2 Definition of Emergency. For purposes of this Section 4.24, an emergency shall meet each of the following criteria: (i) it must be based on genuine health or safety concerns (other than general growth management issues); (ii) it must arise out of a documented emergency situation, as declared by the President of the United States, Governor of California, or the Mayor, City Council or City Administrator of the City of Huntington Beach; and(iii)based upon its terms or its effect as applied, it does not apply exclusively or primarily to the Site. 4.25 Severability Invalidation of any of the provisions contained in this Agreement, or of the application thereof to any person,by judgment or court order, shall in no way affect any of the other provisions hereof or the application thereof to any other person or circumstance, and the same shall remain in full force and effect,unless enforcement of this Agreement, as so invalidated,would be unreasonable or inequitable under all the circumstances or would frustrate the purposes of this Agreement and/or the rights and obligations of the Parties hereto. 4.26 interpretation The language in all parts of this Agreement shall in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any Party. The Parties hereto acknowledge and agree that this Agreement has been prepared jointly by the Parties and has been the subject of arm's length and careful negotiation over a considerable period of time,that each Party has independently reviewed this Agreement with legal counsel, and that each Party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the 35 snb19a 3'f S provisions hereof: Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, this Agreement shall not be interpreted or construed against the Party preparing it, and instead other rules of interpretation and construction shall be utilized. 4.27 Counterparts This Agreement may be executed in duplicate counterpart originals,each of which is deemed to be an original and all of which when taken together shall constitute one and the same instrument. 1 4.28 Entire Agreement This Agreement consists of thirty seven(37)pages and seven(7) exhibits (designated"A" through"G"), which constitute the entire understanding and agreement of the Parties. IN WITNESS WHEREOF,the Parties have each executed this Agreement on the date first above written. MAYER FINANCIAL, LTD, CITY OF HUNTINGTON BEACH, a California limited partnership, a municipal corporation of the State of California By: RLM Management, Inc., a California corporation, General Partner By: Robert L. Mayer, C ief Executive Officer M or B Robert L. Mayer, Jr., Se t THE WATERFRONT HO L, LC, a California limited liability company By: Waterfront Development, Inc., a California corporation, Manager By: .e✓ Robert L. Mayer, Chairman By: .� Stephen . Bone, President & Secretary 9116198 36 ATTE. APPROVED AS TO FORM: ;�A,J� I r � 1 t E 1 1 7 1 City°Clerk ` - i Att ey r REVIEI7 A7l�APPROVED: INITIATED AND APPROVED: � v fd/ p i City AdnACstrator Director of Communit evelopment 9/16/98 37 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of L •� County of On KwP.64cbze 10, before me, ga:k 't q�j , Date Name and Title of Officer(e.g.,`J;;� N a Public") personally appeared6�- r � - Name(s)of Signer(s) personally known to me- - to be the person whose name(p iEto subscribed to the within instrument and acknowledged to me that a executed the same in h eir uthorized capacit es and that by eir ignatur=on the instrument the person= or the entity upon behalf of which the personpacted, tAURA A.NELSON executed the instrument. ConvnWon# 1066M otory County '1O WITNESS my h nd and official seal. orange County any Comm EOM Jut 23,19W Signature of Notary Public O IONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attachend- -Document Title or Type of Document: AA-rew�. Document Date: �!�,�g Number of Pages: 7 AAM:4 - C�.t s dry-fu+^,• '7 1 Signer(s) Other Than Named Above: Och-rt L. ' -'�'-` t L• Ma,.;j..• �, .�{-e k,60"� Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee ❑ Trustee _ ❑ Guardian or Conservator - - ❑ Guardian or Cons rvat r --- 1�. Other: Top of thumb here S Other: �." L Top of thumb here LIP Signer Is Representing: Signer Is Representing: .' p 1995 National Notary Association•8206 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827 1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of L.LC ✓l.tAr County of On ��Uc 2�f !�, ���� before me, �• SVA N O f"i C1 Date ��}} [Name and Title of Officer(e.g.,"Jane Do ,Notary Public") personally appeared tC1 Names}of Signers) personally known to me— to be the person whose name s�subscribed to the within instrument and acknowledged to me that 19/64_� executed the s_aMe in(ohet%iei authorized capacity(iee),and that by hi h@44heir signature(&) on the instrument the person(s}, or the entity upon behalf of which the person(s�acted, LAuR°'p' NELSON executed the instrument. Corrunfsslon 0 1066263 .� Notary Public—COUOrnla Orange County WITNESS my hand and official seal. My Comm. Expires Jul 23.1999 Egnature of Notary Public OV VAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: 4IR41 a s L6 [)"Pq OW41P Alf"&4 Document Date: Number of Pages: -,,-- Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: © "� l—• �+'�� Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer ❑ Corporate Officer Title(s): Title(s): ❑ Partner—❑ Limited ❑ General ❑ Partner—❑ Limited ❑ General ❑ Attorney-in-Fact ❑ Attorney-in-Fact ❑ Trustee _ ❑ Trustee _ ❑ Guardian o onservator ❑ Guardian or Conservator 7s Other: Top of thumb here ❑ Other: Top of thumb here 4 Signer Is Representing: « Signer Is Representing: ELM 0 1995 National Notary Associatlon•8236 Remmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Tall-Free 1-800-876-6827 3 jaoS CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of VIA-& County of On NOLIC��r before me, Date Name and Title of Officer{e.g.,"Jane Doe,N Public") personally appeared 9ePA4,j!4t= k• Name(s)of Signer{s) impersonally known to me- to be the person(t}- whose name(--&a.F&subscribed to the within instrument and acknowledged to me that&&4eA49y executed the same iR115AefA-1:terir authorized capacity(inosj,and that by �4ef,44eir signaturefs)on the instrument the person(t, or the entity upon behalf of which the person{ acted, LAURA A.NELSON executed the instrument. commmon*1OW63 Notary Pjbflo—COVOM10 orange County WITNESS NESS my hand and official seal. My Comm.Expires Jul 23.IM ,Signature of Notary Public OVTIONAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: � Document Date: NurRber of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer(s) Signer's Name: Signer's Name: LJ Individual D Individual El Corporate Officer LJ Corporate Officer Title(s): Title(s): LJ Partner—D Limited E General D Partner Limited 0 General D Attorney-in-Fact LJ Attorney-in-Fact Ll Trustee El Trustee El Guardian or Conservator; Ll Guardian or Conservator Other:YP El Other: Top of thumb here Signer Is Representing: Signer Is Representing: 0 1995 National Notary Association-8236 Rerrimet Ave.,P.D.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free 1-80D-876-6827 3 ids CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of County of On NGV� before me, Dale Name and Title of Officer(e.g.,"Jane Doe,Notary P&I personally appeared 1Zp&&e L %J Name(s)of Signer(s) personally known to me-OR-F9 p,ou add to nie en the+asia inf satisf=tui y evid e to be the personN) whose nameN6af&subscribqto the within instrument and acknowledged to me that≷le4lie�+-executed the same ir(Ds 4@P#te+rauthorized capacity(ie&),and that by Dl �r signature(•&) on the instrument the person(-*, LAURA jk NELSON or the entity upon behalf of which the person(sf acted, COMMMOn#1066263 executed the instrument. Notary Public—Cafforria Orcillcle County MY Comm E)1res Jut 23,19W WITNESS m nd and official seal. Signature of Notary Public TIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: 41&&_4A V Document Date: Numb@r of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: F1 Individual El Individual LJ Corporate Officer 7-1 Corporate Officer Title(s): Title(s): El Partner—D Limited El General D Partner—El Limited El General 7 L1 Attorney-in-Fact 1:1 Attorney-in-Fact 17 Trustee El Trustee Ll Guardian or Conservator LJ Guardian or Conservator -f!r Other: CIA p JV—iV Top of thumb here 11 Other: Top of thumb here Signer Is Representing: Signer Is Representing: Lam. C 1995 National Notary Association•6236 Remmet Ave,,P.O.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of County of On before me, Date Name and Title of Officer(e.g.,"Jere Dee,Notahry"Publlc") personally appeared V Name(s)of Signer(s) personally known to me—OR to be the person(* whose name(s&afe subscribed to the within instrument and acknowledged to me that�&heAh executed the same irtg/heOHitrir authorized capacity0et), and that by it signature* on the instrument the person¢5), LAUPA A.NELUSSWON or the entity upon behalf of which the person(a) acted, convr"on#1066263 Notary A.AAC—ccoorrva executed the instrument. Orange County My Comrn EVIres Jul 23.19W WITNESS my hand and official sea]. Signature of Notary Public 0 T10NAL Though the information below is not required by law,it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: 4Meo4i—d &49C4) Document Date., Number of Pages: dz" 404g, Signer(s) Other Than Named Above: Capaclty(ies) Claimed by Signer(s) Signer's Name: Signer's Name: 71 Individual El Individual Ll Corporate Officer 11 Corporate Officer Title(s): Title(s): 71 Partner E Limited 11 General [I Partner LJ Limited 71 General [I Attorney-in-Fact EJ Attorney-in-Fact [I Trustee El Trustee it F-1 Guardian qr Conservator [-1 Guardian or Conservator %.;it Other: Top of thumb here Ll Other: Top of thumb here Signer Is Representing: Signer Is Representing: 01101 -Pie_ I ©1995 National Notary Association•8236 Rernmet Ave.,P.O.Box 7184•Canoga Park,CA 91309-7184 Prod.No.5907 Reorder.,Call Toll-Free 1-800-876-6827 1 � EXHIBIT "A" THE HILTON PARCEL-- SITE MAP PARCEL 2 N31'47'35"E (R)l _ PCC 0 (D S'LY LINE N 1/2, NE 1/4 SEC 14 PCB T. 6 S., R. 11 W., M.M. 51/14 PARCEL 1 J� TRACT NO. 13045 LOT 1 M.M. 628/46 & 47 A �CIIF/ C co S Ty G) A=00.08'40" Y R=2355.00' o L=5.94' r- O A=73'36'25" �j R=32.00' L=41 .11 ' N89'43'07"E 43.24' PW i 4 1 r EXHIBIT "B" THE HILTON PARCEL-LEGAL DESCRIPTION ALL THOSE CERTAIN LANDS IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL 1: LOT 1 OF TRACT MAP NO. 13045 AS PER MAP FILED IN BOOK 628 PAGES 46 AND 47 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 2: THAT PORTION OF THE NORTH HALF OF THE NORTHEAST QUARTER OF SECTION 14, TOWNSHIP 6 SOUTH, RANGE 11 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE RANCHO LAS BOLSAS, AS PER MAP FILED IN BOOK 51, PAGE 14 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE SOUTH LINE OF THE NORTH HALF OF SAID SECTION 14, DISTANT THEREON NORTH 890 43' 07" EAST 103.28 FEET FROM CENTER LINE OF HUNTINGTON STREET, AS SHOWN ON RECORD OF SURVEY NO. 81-1151, FILED IN BOOK 103, PAGES 28 AND 29 OF RECORDS OF SURVEY IN THE OFFICE OF SAID COUNTY RECORDER, SAID POINT BEING AT THE EASTERLY TERMINUS OF THE NORTHERLY MOST LINE OF THE LOT 1, OF TRACT MAP 13045, PER MAP FILED IN BOOK 628 PAGES 46 AND 47 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID POINT BEING ON A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 2355.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 310 56' 15" EAST; THENCE NORTHWESTERLY 5.94 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 000 08' 40" TO THE BEGINNING OF A CURVE CONCAVE SOUTHERLY, HAVING A RADIUS OF 32.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 310 47' 35" EAST; THENCE WESTERLY 41.11 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 730 36' 25" TO A POINT ON SAID SOUTH LINE OF THE NORTH HALF OF SECTION 14, SAID POINT BEING AT THE WESTERLY TERMINUS OF THE NORTHERLY MOST LINE OF SAID LOT 1, A RADIAL LINE TO SAID POINT BEARS NORTH 410 48' 50" WEST; THENCE NORTH 890 43' 07" EAST 43.24 FEET ALONG SAID NORTHERLY MOST LINE TO THE POINT OF BEGINNING. ALL AS SHOWN ON EXHIBIT"A"ATTACHED HERETO AND MADE A PART HEREOF. IAND 8U 9`fio e y . E}(P.06130100 Zs 375% ROBE T L TR60GHTON, L.S. 3750 OF EXP.06130198 EXHIBIT licil THE PROPERTY-SITE MAP E'LY LINE SEC 14, T. 6 S.. R. 11 W., M.M. 51/14 N'LY LINE S 1/2, NE 1/4 SEC 14, T.6.S., R.M.W., M.M. 51/14 N35*2225"E (R) P.O.B. N89'42'58"E 1658.70' 0=05'54'16" R=2452.00' L=252.68' 't%/ /�q�G r N, N48'43'21"W 38.85' R 50,00' Ness�S 25�8� `639. -9� THE PROPERTY sr• OD,32 >0�6F45.56 AC. < Gi,�� // // \\ > LLJ 0 m ,oqC/� Sao \` \ ` _ co U /0 < LLJ co >6 N00'44'22"W 12-63' 0 0 N53*05'49"W 172.33' S74*34'12"W 45.01' Y 1 i l EXHIBIT "D" THE PROPERTY-LEGAL DESCRIPTION ALL THAT CERTAIN LAND IN THE CITY OF HUNTINGTON BEACH,COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: THAT PORTION OF SECTION 14, TOWNSHIP 6 SOUTH, RANGE 11 WEST, SAN BERMARDINO BASE AND MERIDIAN, IN THE RANCHO LOS BOLSAS, AS PER MAP FILED IN BOOK 51, PAGE 14 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: .BEGINNING AT THE INTERSECTION OF A LINE THAT IS PARALLEL WITH AND 50.00 FEET WEST OF THE EAST LINE OF SAID SECTION 14, WITH THE NORTH LINE OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF SAID SECTION; THENCE SOUTH 000 44' 22" EAST 1820.36 FEET ALONG SAID PARALLEL LINE TO A POINT IN THE NORTH LINE OF THE LAND DESCRIBED IN BOOK 2351, PAGE 5 OF OFFICIAL RECORDS OF SAID COUNTY; THENCE SOUTH 74"34' 12"WEST 45.01 FEET ALONG SAID NORTH LINE TO A POINT IN THE NORTHEAST LINE OF THE LAND DESCRIBED AS PARCEL 2 IN BOOK'826, PAGE 379, OF SAID OFFICIAL RECORDS; THENCE NORTH 530 05' 49"WEST 172.33 FEET ALONG SAID NORTHEAST LINE TO A POINT IN THE WEST LINE OF THE LAND DESCRIBED IN BOOK 261, PAGE 41 OF DEEDS, RECORDS OF SAID COUNTY; THENCE NORTH 000 44' 22" WEST 12.63 FEET ALONG SAID WEST LINE TO A POINT IN THE NORTHEASTERLY RIGHT OF WAY LINE OF PACIFIC COAST HIGHWAY AS DESCRIBED IN BOOK 455, PAGE 400 OF SAID OFFICIAL RECORDS; THENCE NORTH 530 05'49"WEST 1966.76 FEET ALONG SAID NORTHEAST LINE TO THE MOST SOUTHERLY CORNER OF LOT 1, TRACT NO. 13045, RECORDED IN BOOK 628, PAGES 46 AND 47 OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY; THENCE NORTH 36Q 54' 20" EAST 360.46 FEET ALONG THE SOUTHEASTERLY OF SAID LOT 1 TO THE MOST EASTERLY CORNER OF SAID LOT 1; THENCE SOUTH 480 43' 21" EAST 25.00FEET; THENCE NORTH 410 16' 39" EAST 97.00 FEET; THENCE N 480 43'21"WEST 38.85 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY, HAVING ARADIUS OF 2452.00 FEET; THENCE NORTHWESTERLY 252.68 FEET ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 050 54' 16"TO A POINT ON THE NORTH LINE OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF SAID SECTION 14, A LINE RADIAL TO SAID POINT BEARS NORTH 35°22'25" EAST; THENCE NORTH 890 42' 58" EAST 1658.70 FEET ALONG SAID NORTH LINE TO THE POINT OF BEGINNING. ALL AS SHOWN ON EXHIBIT"C" ATTACHED HERETO AND MADE OF PART HEREOF. LAND SU E Tg 9Gctfa e y EXP.06/30/00 ROBER E. OU HTON, L.S. 3750 OF Op�.1F T EXP.06130198 .. ...................... ........................................ . ... . ... EXHIBIT "E" THE COMMERCIAL PARCEL II II II I � - - - - - - - - - - - - - - - IN �JC I THIRD \ \ HOTEL �•\ PORTION ,oq\ 3.56f/---AC NET OOQ c LF� � OCEAN \ I J c GRAND . I o co RESORT J m 'QST PORTION _ hi c Q Ld y� 15.31+/-AC. NET -9}- m 0 0 I I PW r 03 EXHIBIT 'IF" THE RESIDENTIAL PARCEL THE RESIDENTIAL PARCEL T.M. N0.15549 0 4c, Of 22.70+/— AC. NET Ld -j 0 m N1. u X) Ld /c, CIO EXHIBIT "Gvv CITY BEACH PROPERTY 1-1- - - - - - - - - - - - - - Rl. r LLJ 0 cyA qy��\ < mLLJ ao "Op \ k A/ Ord.No. 3405 STATE OF CALIFORNIA } COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, CONNIE BROCKWAY,the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a rem meeting thereof held on the 14th day of September, 1998, and was again read to said City Council at a regular meeting thereof held on the 21st day of September, 1998, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Julien, Harman, Green, Dettloff, Bauer, Sullivan NOES: None ABSENT: Garofalo ABSTAIN: None I,Connie Brockway CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Independent on 19 / f In accordance with the City Charter of said City City Clerk and ex-officlo eTk Connie Brockway City Clerk of the City Council of the City Deputy City Clerk of Huntington Beach, California G/ordinanc/ordbkpg 9/24/98