HomeMy WebLinkAboutCity Council - 6077 i
RESOLUTION NO. 6077
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HUNTINGTON BEACH APPROVING A FIRST AMENDMENT
TO THE SECOND AMENDED AND RESTATED
DISPOSITION AND DEVELOPMENT AGREEMENT BY AND
BETWEEN THE HUNTINGTON BEACH REDEVELOPMENT
AGENCY AND CALIFORNIA RESORTS
WHEREAS, the Huntington Beach Redevelopment Agency
(the "Agency" ) and California Resorts, a California general
partnership entered into a certain Second Amended and Restated
Disposition and Development Agreement, dated as of
August 26, 1988, (the "DDA" ) for the disposition and
development of certain private and public improvements within
the Main-Pier Redevelopment Project Area (the "Project Area" ) ;
and
WHEREAS, on December 5, 1988, the Agency approved the
assignment and transfer by California Resorts of all of its
right, title, and interest in and to the DDA to California
Resorts/Haseko Associates, a California general partnership
doing business as a joint venture (hereinafter referred to as
the "Developer" ) ; and
WHEREAS, the Developer and the Agency are proceeding
to perform their respective obligations pursuant to the DDA; and
WHEREAS, the Developer and the Agency desire to
approve an amendment to the DDA ( in the form attached hereto as
Attachment "A" incorporated herein, which constitutes the
"Amendment" ) to supplement the terms of the DDA; and
WHEREAS, the approval and execution of the Amendment
will facilitate the orderly completion of improvements by the
Developer as contemplated in the DDA and in furtherance of the
Redevelopment Plan for the Main-Pier Redevelopment Project (the
"Redevelopment Plan" ) ; and
WHEREAS, the Agency and the City Council of the City
of Huntington Beach (the "City Council") have conducted a duly
noticed joint public hearing regarding the proposed Amendment;
and
NOW, THEREFORE, the City Council of the City of
Huntington Beach does resolve as follows :
Section l : The City Council finds and determines,
based upon the testimony and information presented during the
public hearing with respect to the Amendment that the Amendment
it
will significantly benefit the Agency and the community by
providing additional security to protect the Agency' s interest
in real property pursuant to the DDA and by facilitating the
elimination of blighting conditions, the generation revenues,
and the provision of high-quality development activities to
stimulate the economic enhancement of the Project Area in
accordance with the DDA.
Section 2 : The City Council finds and determines
that: (a) the approval of the Amendment will promote the
objectives of the Redevelopment Plan and promote the health,
safety and welfare of the citizens of the City of
Huntington Beach; and (b) the Amendment is consistent with the
orderly development of the improvements to be provided by the
Developer pursuant to the DDA.
Section 3: The City Council approves the Amendment in
the form of Attachment "A" and authorizes and directs the Mayor
and the City Manager to execute that Amendment and such other
documents as may be determined by the City Attorney to be
necessary or appropriate to effectuate the DDA as now amended.
PASSED, APPROVED, and ADOPTED this 2nd day of
October , 1989 by the following vote:
AYES: MacAllister, Green, Winchell, Bannister, Mays, Silva, Erskine
NOES: None
ABSENT: None
ABSTAIN: None
CITY COUNCIL OF THE CITY OF
HUNTINGTON BEACH
By
Mayor
DATED: 10/3/89
ATTEST:
-e�rv� 4��4�
City Clerk
-3-
08/31/89
6064n/2460/004 6077
APPROVED AS TO FORM
Agency Special Counsel ,
STRADLING, YOCCA, CARLSON & RAUTH
REVIEWED AND APPROVED AS TO FORM:
` r
City Attorney
(X--
-4- 6077
08/31/89
6064n/2460/004
i
APPROVED AS TO FORM
t'A cy Special un ,
STRADLING, YOCC SON & RAUTH
REVIEWED AND APPROVED AS TO FORM:
City Attorney
1
-4-
08/31/89 6077
6064n/2460/004
ATTACHMENT NO. 10
GUARANTY AND AGREEMENT OF
HASEKO (CALIFORNIA) , INC. (A
MAJORITY-OWNED CORPORATION OF HASEKO (HAWAII ) , INC.
AND HASEKO URBAN, K.K. , TWO RELATED CORPORATIONS)
THE HUNTINGTON BEACH REDEVELOPMENT AGENCY (the "Agency" ) ,
and CALIFORNIA RESORTS, a California general partnership,
entered into that certain Second Amended and Restated
Disposition and Development Agreement dated August 26 , 1988 for
the Main-Pier Redevelopment Project Area (the "DDA" ) and on
December 5, 1988 the Agency approved the assignment and
transfer by California Resorts of all of its rights , title and
interest in and to the DDA to CALIFORNIA RESORTS/HASEKO
ASSOCIATES, a California general partnership doing business as
a joint venture (the "Developer" ) . The Agency and the
Developer have entered or will enter into the First Amendment
to the DDA (the "Amendment" ) to which this Guaranty is attached
as Attachment No. 10 , which Amendment provides in part that
Haseko (California) , Inc . (A Majority-Owned Corporation of
Haseko (Hawaii) , Inc . and Haseko Urban, K.K. , Two Related
Corporations) , (the "Guarantor" ) shall make and deliver a
guaranty as provided in said Amendment .
R E C I T A L S
A. Haseko (California) , Inc . is a majority-owned
corporation of Haseko (Hawaii) , Inc . and Haseko Urban, K.K. ,
two related corporations , and is the parent corporation of
Haseko Pier Colony, Inc . , a general partner of the Developer,
and will significantly benefit by the execution by the Agency
of the Amendment .
B. The execution by the Guarantor of this Guaranty is a
condition but for which the Agency would not execute the
Amendment .
C. The Amendment, which is on file with the Agency as a
public record, is incorporated herein by reference. Unless
otherwise expressly set forth herein, all terms shall have the
same meaning as in the Amendment .
In consideration of the Agency' s approval of the Amendment
and other valuable consideration, receipt of which is hereby
acknowledged:
1 . Guarantor unconditionally and irrevocably guarantees
and promises to pay to Agency on demand, in lawful money of the
United States , any and all indebtedness of Developer to Agency
under that certain Subordinated Deed of Trust with Assignment
of Rents (Attachment No. 9 to the DDA) .
laev
6077
2 . Guarantor hereby unconditionally and irrevocably
guarantees to Agency the full, timely and faithful performance
by Developer of all of its obligations , duties, promises ,
covenants and agreements as set forth in the DDA and the
Amendment, collectively referred to herein as the "Amended DDA. "
3 . This is a continuing guaranty. No extensions,
modifications or changes to the Amended DDA shall release the
undersigned or affect this Guaranty in any way, and the
undersigned hereby waives any notification thereof .
4 . (a) The Guarantor shall promptly advise the Agency in
writing of any material adverse change in the business or
financial condition of the Guarantor .
(b) The Guarantor will maintain full and complete
books of account and other records reflecting the results of
its operations, and will furnish or cause to be furnished to
the Agency such information about the financial condition and
operations of the Guarantor as the Agency shall reasonably
request, including, without limitation, the following
information which shall be furnished without request :
( i) Immediately upon availability, but no later
than one hundred twenty ( 120) days after the close of each
fiscal year of the Guarantor :
(A) A balance sheet of the Guarantor as of
the close of such fiscal year; and
(B) Statements of income and expenses and
change in financial condition of Guarantor for such fiscal year .
Each of the foregoing shall set forth in comparable form the
corresponding figures for the previous fiscal year , shall be in
reasonable detail , shall be prepared in accordance with good
accounting principles and provided in the form prepared by
and/or for the Guarantor in the regular course of business , and
shall be certified to be true and correct by a responsible
financial officer of the Guarantor and/or by a firm of
Certified Public Accountants reasonably acceptable to the
Agency.
The Agency shall have the right , at all
reasonable times and upon reasonable notice, to audit the
Guarantor ' s books and records , all of which shall be made
available on a confidential basis to the Agency and the
Agency' s representatives for such purpose, from time to time,
upon the Agency' s request . If any such audit by the Agency
shall disclose that either current assets of the Guarantor are
overstated by more than two percent (2%) or that current
liabilities of the Guarantor are understated by at least two
percent (2%) , the cost of such audit shall be payable by the
Guarantor to the Agency promptly upon demand.
ATTACHMENT NO. 10
Page 2 of 5
09-15-89
6109n/2460/004
(c) No material adverse change to Guarantor ' s
financial condition or business shall occur from that which
existed on March 31 , 1989 , being the date of certain financial
statements of Guarantor delivered to the Agency on a
confidential basis .
(d) This Guaranty shall be included in the financial
records of the Guarantor and made available to the Certified
Public Accounting firm performing the Guarantor ' s audit/review
of financial position.
5 . The undersigned hereby waives all of the suretyship
provisions of the California Civil Code Sections 2788
through 2855 .
6 . Guarantor hereby waives and agrees not to assert or
take advantage of (a) any right to require Agency to proceed
against the Developer (or any guarantor other than the
undersigned) or to pursue any other remedy in the Agency ' s
power before proceeding against the Guarantor; (b) demand,
protest and notice which the Agency may be required to provide
to Developer under the Amended DDA; and (c) any duty on the
part of Agency to disclose to Guarantor any facts Agency or
City now or hereafter know about the Site, the Amended DDA or
the Developer, regardless of whether Agency has reason to
believe that any such facts materially increase the risks
beyond that which Guarantor intend to assume or has reason to
believe that such facts are unknown to Guarantor or has a
reasonable opportunity to communicate such facts to Guarantor,
it being understood and agreed that Guarantor is fully
responsible for being and keeping informed of all circumstances
regarding the Site, the Amended DDA, the obligations of the
Developer, the financial condition of the Developer and of all
circumstances bearing on the risk of any obligation by
Developer hereby guaranteed.
7 . Guarantor shall have no right of subrogation and
waives any right to enforce any remedy the Agency now has or
may hereafter have against the Developer , and any benefit of
and and right to participate in any security now or hereafter
held by Agency.
8 . The obligations of Guarantor hereunder are independent
of the obligations of Developer and, in the event of default
hereunder, a separate action or actions may be brought and
prosecuted against Guarantor (or any other guarantor) whether
or not Developer is joined therein or a separate action or
actions are brought against Developer .
9 . The Agency' s right hereunder shall not be exhausted by
its exercise of any one of its rights or remedies or by any
ATTACHMENT NO. 10
Page 3 of 5
09-15-89
6109n/2460/004
6077
such action or by any number of successive actions until and
unless all indebtedness and obligations hereby guaranteed have
been paid and fully performed.
10 . No provisions of this Guaranty can be waived nor can
Guarantor be released from the obligations hereunder except by
a writing duly executed by each Agency.
11 . Guarantor agrees to pay all reasonable attorney' s fees
and all other costs and expenses which may be incurred by
Agency in enforcing or attempting to enforce this Guaranty,
whether the same shall be enforced by suit or otherwise .
12 . Any sum required to be paid by the Guarantor to the
Agency pursuant to the terms hereof shall bear interest at the
lesser of ( i) the maximum rate permitted under Section 1(2) of
Article XV of the California Constitution or ( ii) twelve
percent ( 12%) per annum, from the date said sums shall be due
until paid.
13 . Guarantor hereby waives notice of any demand by the
Agency, as well as notice of any default by the Developer .
14 . The Agency may assign this Guaranty. When so
assigned, Guarantor shall be bound as above to the assignees
without in any manner affecting Guarantor ' s liability hereunder .
15 . This Guaranty shall remain in effect notwithstanding
any bankruptcy, reorganization or insolvency of the Developer
or any successor or assignee thereof or any disaffirmance by a
trustee of the Developer .
16 . This Guaranty shall remain in effect notwithstanding
any bankruptcy, reorganization or insolvency of the Guarantor ,
and notwithstanding any default or failure of the Guarantor
fully to perform any of its obligations* set forth in this
Guaranty. -
17 . The Guarantor hereby agrees that as long as this
Guaranty is in effect, it will maintain its corporate
existence, will not dispose of all or substantially all of its
assets , and will not consolidate with or merge into another
corporation. The obligations of the Guarantor under this
Guaranty may not be assigned or transferred without the express
written approval of the Agency.
18 . This Guaranty shall inure to the benefit of and bind
the successors and assigns of Agency and Guarantor .
19 . This Guaranty shall terminate upon the issuance by the
Agency of a Certificate of Completion for all construction and
ATTACHMENT NO. 10
Page 4 of 5
09-15-89
6109n/2460/004
development to be completed by the Developer upon the Site in
accordance with Section 415 of the Amended DDA.
20 . Each of the persons or entities executing this
Guaranty shall be jointly and severally liable as Guarantor for
the obligations and promises set forth herein, and the Agency
may proceed hereunder against any one or more of said persons
or entities without waiving its . right to proceed against any of
the others .
21 . Guarantor agrees that jurisdiction and venue with
respect to any matter pertaining to this Guaranty or acts or
omissions hereunder shall lie exclusively with the Superior
Court of the County of Orange, State of California, in an
appropriate municipal court of that county, or in the Federal
District Court in the Central District of California.
Guarantor irrevocably waives any and all defenses based upon
venue or forum non conveniens .
22 . The laws of the State of California shall govern the
interpretation and enforcement of this Guaranty.
23 . If any term, provision, covenant or condition hereof
or any application thereof should be held by a court of
competent jurisdiction to be invalid, void or unenforceable,
all terms, provisions , covenants and conditions hereof, and all
applications thereof not held invalid, void or unenforceable,
shall continue in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
IN WITNESS WHgREOF, the undersigned has executed this
Guaranty this day of Q G r 1989 .
HASEKO (CALIFORNIA) , INC.
�r�� 6y ,�,�-,;� o,�o
B
Name:Sc�cti�rc �� u�ase h�'S a�t`vr74t? .:,
Title: Vice b-eS 4 ,i4
By
Name:
Title:
"GUARANTOR"
ATTACHMENT NO. 10
Page 5 of 5
09-15-89
6109n/2460/004
6077
development to be completed by the Developer upon the Site in
accordance with Section 415 of the Amended DDA.
20 . Each of the persons or entities executing this
Guaranty shall be jointly and severally liable as Guarantor for
the obligations and promises set forth herein, and the Agency
may proceed hereunder against any one or more of said persons
or entities without waiving its right to proceed against any of
the others .
21 . Guarantor agrees that jurisdiction and venue with
respect to any matter pertaining to this Guaranty or acts or
omissions hereunder shall lie exclusively with the Superior
Court of the County of Orange, State of California, in an
appropriate municipal court of that county, or in the Federal
District Court in the Central District of California .
Guarantor irrevocably waives any and all defenses based upon
venue or forum non conveniens .
22. The laws of the State of California shall govern the
interpretation and enforcement of this Guaranty.
23 . If any term, provision, covenant or condition hereof
or any application thereof should be held by a court of
competent jurisdiction to be invalid, void or unenforceable,
all terms , provisions , covenants and conditions hereof , and all
applications thereof not held invalid, void or unenforceable ,
shall continue in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
IN WITNESS WHEREOF, the undersigned has executed this
Guaranty this day of 1989 .
HASEKO (CALIFORNIA) , INC.
Name .
Title :
BY y i�Cl. y20 ��.lit,��v �r A k;roe �c�, �► S art�r h� F
Name : -
Title : vice �2es�oerv�
"GUARANTOR"
ATTACHMENT NO. 10
Page 5 of 5
10-02-89
6109n/2460/004
STATE OF CALIFORNIA )
ss.
COUNTY OF LOS ANGELES )
On this 4th day of October 1989, before me, a Notary Public in and for said
State, duly commissioned and sworn, personally appeared AKIRA OKOCHI,
personally known to me (or proved to me on the basis of satisfactory evidence) to
be the person whose name is subscribed to the within instrument as the attorney-
in-fact of Soichiro Kawase, in Soichiro Kawase's capacity as Senior Executive Vice
President of HASEKO (CALIFORNIA), INC., a California corporation, and
acknowledged to me that he subscribed his own name as attorney-in-fact and the
name of Soichiro Kawase as Senior Executive Vice President of HASEKO
(CALIFORNIA), INC., and also acknowledged to me that HASEKO (CALIFORNIA),
INC. executed the within instrument pursuant to its bylaws or a resolution of its
board of directors.
OFFICIAL SEAL
ISABEL C. DAVIS
NOTARY PURL CALIFORNIA / C� ,� � ✓��
s LOS ANGEtfS COUNTY
My Comm.Expires Feb.4,1991C. Q J ;
i
6077
ATTACHMENT "A"
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED DISPOSITION AND
DEVELOPMENT AGREEMENT BY AND BETWEEN
THE HUNTINGTON BEACH REDEVELOPMENT AGENCY AND
CALIFORNIA RESORTS
THIS FIRST AMENDMENT ( " irst Amendment" ) is entered into
this _J 'f day of 1989, by and between THE
HUNTINGTON BEACH REDEVELOPMENT AGENCY (the "Agency" ) and
CALIFORNIA RESORTS/HASEKO ASSOCIATES, a California general
partnership doing business as a joint venture (the "Developer" ) .
R E C I T A L S
WHEREAS, the Agency and California Resorts entered into a
certain Second Amended and Restated Disposition and Development
Agreement dated August 26, 1988 (the "DDA" ) , a copy of which is
on file as a public record with the Secretary of the Agency and
which is incorporated herein by reference; and
WHEREAS, on December 5, 1988, the Agency approved the
assignment and transfer by California Resorts of all of its
rights, title and interest in and to the DDA to the Developer;
and
WHEREAS, the Developer and the Agency to the DDA are
proceeding to implement the redevelopment activities provided
for in the DDA; and
WHEREAS, the Agency has determined that it will facilitate
the successful completion of the activities proposed in the DDA
and the Redevelopment Plan for the Main-Pier Redevelopment
Project if certain provisions of the DDA are amended; and
WHEREAS, the Agency has determined that the Guaranty and
Agreement of Haseko (California) , Inc . is adequate
consideration in exchange for the amendments to the DDA
provided for herein and that said Guaranty and Agreement
provides adequate security to protect the Agency' s interest in
real property represented by that certain Subordinated Deed of
Trust with Assignment of Rents (Attachment No . 9 to the DDA) ;
and
WHEREAS , the First Amendment now proposed enhances the
viability of the activities proposed under the DDA and is
economically beneficial to the Agency and the Developer;
/.�9/93
NOW, THEREFORE, the Agency and the Developer do hereby
agree to amend the DDA as follows :
1 . At Page 28 , Section 412 shall be amended in its
entirety as follows :
If Developer is in default hereunder as a result of
its failure or inability to complete the construction of
the Project in accordance with the terms of this Agreement,
including the time schedule set forth in the Schedule of
Performance (Attachment No. 3) and if during the
sixty (60) day period following such default the holder of
any mortgage or deed of trust creating a lien or
encumbrance upon the Site or any part thereof has not
exercised the option to construct, or if it has exercised
the option and has not proceeded diligently with
construction during such sixty (60) day period, the Agency
shall have the right (exercisable by written notice to the
holder of any mortgage or deed of trust), to purchase such
mortgage or deed of trust and the note secured thereby for
an amount equal to the sum of ( i) the principal balance
outstanding under such note and all accrued unpaid interest
thereon, plus ( ii) all other sums secured by such mortgage
or deed of trust, plus ( iii) all other sums which are
payable to such holder in connection with the loan
evidenced by such note, which payment shall be made to such
holder, if at all , no later than fifteen ( 15) days after
the date of such written notice of Agency' s exercise of the
option. If the ownership of the Site or any part thereof
has vested in the holder, the Agency, if it so desires ,
shall have the right (exercisable by written notice to such
holder no later than sixty (60) days following the date
title vests in the holder) to be entitled to a conveyance
from the holder of the Site or such part thereof that is
vested in holder upon payment to the holder of an amount
equal to the sum of the following:
a. All principal and interest outstanding under
such note immediately prior to such holder ' s
taking title to the Site or such portion
thereof, together with all other amounts
secured by such mortgage or deed of trust
and -all other amounts payable in connection
with the loan secured by such mortgage or
deed of trust; plus
b. All costs and expenses incurred by such
holder in connection with holder ' s obtaining
title to the Site or such portion thereof to
which it has obtained title, including,
without limitation, recording fees , title
ATTACHMENT "A"
Page 2 of 5
09/12/89
6065n/2460/004
6077
insurance premiums , trustees fees and
reasonable attorneys fees; plus
C. All costs and expenses incurred by such
holder in connection with owning, operating,
maintaining, leasing, and repairing the Site
or such part thereof to which such holder
has obtained .title; plus
d. The cost of any capital improvements made to
the Site or such portion to which such
holder has taken title during the period in
which such holder held title; plus
e. An amount equal to the interest that would
have been due on the outstanding principal
balance of the note as of the date such
holder obtained title to the Site or portion
thereof, of for the period commencing on
that date and continuing to the date such
holder conveys the Site or portion thereof
to Agency;
such payment shall be made to such holder , if at all , no later
than fifteen (15) days following the date of such written
notice of Agency' s exercise *of the option.
2 . Page 2 of Attachment No . 8 ( "Method of Financing" )
after Paragraph 3 , insert as a new paragraph:
4 . Upon the direction and consent of the Developer,
Agency' s obligation to pay the Project costs
referenced in Paragraph 2 shall be satisfied by
Agency' s payment of such amounts directly to the
Developer ' s Lender or other designee .
3 . As a condition to the Agency approving and executing
this First Amendment, the Developer shall cause to be delivered
to the Agency the "Guaranty and Agreement of Haseko
(California) , Inc . , " in the form attached hereto and to be
incorporated into the DDA as Attachment No . 10 , duly executed.
4 . Except as expressly provided to the contrary herein,
all provisions of the DDA shall remain in full force and
effect. The DDA and this First Amendment collectively shall
hereafter be referred to as the "Amended DDA" .
The Amended DDA integrates all of the terms and conditions
of agreement between the parties, and supersedes all
negotiations or previous agreements between the parties with
respect to the subject matter hereof .
ATTACHMENT "A"
Page 3 of 5
09/12/89
6065n/2460/004
t
I ,
Each of the parties hereto warrants and represents to the
other that it has the full power and authority to enter into
and execute this First Amendment, that all authorizations and
approvals required to make this First Amendment binding upon
such party have been obtained, and that the person or persons
executing this First Amendment on behalf of such parties has
been fully authorized to do so.
The effective date of this First Amendment shall be the
date of execution by the Agency.
i
�f. Al 1989 HUNTINGTON BEACH REDEVELOPMENT AGENCY
BY
09.— . ., -
airman
ATTEST:
Agency Clerk
APPROVED AS TO ORM:
- 'e d1l J//
jrAcy
Specilal sel
dling, Yo , Carlson & Rauth,
REVIEWED AND APPROVED: A ROVED•
ASS,TO FORM
Agency Attorney y Executive Director
ATTACHMENT "A"
Page 4 of 5
09/12/89
6065n/2460/004
6077
CALIFORNIA RESORTS/HASEKO ASSOCIATES,
a California general partnership
doing business as a joint venture
Date: VGf 7 1989 CALIFORNIA RESORTS
INTERNATIONAL, INC.
. r a'.Califor a corporation,,
P
partner
By
Itsdew T
Date: Ocir 1989 HASEKO PIER COLONY, INC.
a California corporation,
partn
B
Its-5fe f Mj q. if
ATTACHMENT "A"
Page 5 of 5
09/12/89
6065n/2460/004
Res. No. 6077
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 resolution was passed and adopted by the affirmative
vote of at least a majority of all the members of said City Council
at a regular meeting thereof held on the znd day
Of October 19 89 , by the following vote:
AYES: Councilmembers:
MacAllister, Green, Winchell, Bannister, Mays, Silva, Erskine
NOES: Councilmembers:
None
ABSENT: Councilmembers:
None
•
City Clerk and ex-officitrulerk
of the.City Council of the City
of Huntington Beach, California