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HomeMy WebLinkAboutAbdelmuti Development Company - Citizens Against Redevelopment Excess - CARE - CIM/Huntington, LLC - CIM Group, LLC - Jim Lane - 2003-02-03J. CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION TO: Scott Fields, Assistant City Attorney FROM: Connie Brockway, City Clerk RE: Settlement Agreement and Mutual Release DATE: February 13, 2003 Per your e-mail request, enclosed are 4 sets of Settlement Agreement and Mutual Release with Exhibit A Fourth Amendment to OPA relative to the attached agenda item. We have retained an original of each for the City Clerk's office. g: 'c bm e m os1200 3cb m e m 1 rb r e a d s l e yi DA513. d oc 1(14)February3, 2003 - Council/Ago. Agenda - Page 14 E-14. (City Council/Redevelopment Agency) Approve Settlement Agreement to Resole Three Lawsuits Involving the Abdelmuti Development Company Owner Participation Agreement (OPA)1Jack's Surfboard; Jim Lane, CIM/Huntington LLC; and the Downtown Protect, The Strand: Citizens Against Redevelopment Excess, etc., et. al vs. City of Huntington Beach, etc., et. al (CARES I, II, and Ilu ( . ) —1. City Council and Redevelopment Agency Action: That the City Council and Redevelopment Agency approve, authorize the Mayor and Chairperson to sign, and the City Clerk and Agency Clerk to attest to the Settlement Agreement and Mutual Release by and among Abdelmuti Development Company, Citizens Against Redevelopment Excess, an unincorporated association, James and Victoria Lane, Ronald and Ann Mase, the City of Huntington Beach, the Redevelopment Agency of the City of Huntington Beach, and CIM/Huntington, LLC; and 2. Redevelopment Agency Action: That the Redevelopment Agency approve, authorize the Chairperson to sign, and Agency Clerk to attest to the Fourth Amendment to Owner Participation Agreement by and between the Redevelopment Agency and Abdelmuti Development Company. Submitted by the City Attorney/General Counsel and Economic Develop ment/De puty Executive Director. Funding Source: RDA (Redevelopment Agency) Cap Project Area/Administration City Attorney - $100,000. Approved 5-1-0-1 (Boardman No; Houchen Abstain) AM0, oo V �c Brockway, Connie To: Vi, Thuy Cc: Scott Field Subject: RE: CARE Settlement Agreement Thank you Thuy, I will leave 4 of the settlement agreement and 4 of the fourth amendment. Is this what Scott needs done.Connie -----Original Message ----- From: Vi, Thuy Sent: Wednesday, February 12, 2003 5:00 PM To: Brockway, Connie Subject: RE: CARE Settlement Agreement Connie - Per Scott, I am going to go ahead and pick up 4 originals for mailing and leave one with you. See you tomorrow. Thanks, Thuy. -----Original Message ----- From: Brockway, Connie Sent: Wednesday, February 12, 2003 5:50 PM To: Vi, Thuy Subject: RE: CARE Settlement Agreement Hi Thuy - Tomorrown a.m. will be best. Will you please ask Scott to jot down whom he wants to have mailed the other two sets - and the addresses as I will need this information as he is doing part of the parceling out as we are doing part. Thank you very much. Connie -----Original Message ----- From, Vi, Thuy Sent: Wednesday, February 12, 2003 5:45 PM To: Brockway, Connie Subject: RE: CARE Settlement Agreement Connie, I spoke to Scott and he would like me to pick up two sets to mail to Mr. retain the other three sets. I can pick them up tonight or in the morning Thuy -----Original Message ----- From: Brockway, Connie Sent: Wednesday, February 12, 2003 5:38 PM To: Vi, Thuy Cc: Field, Scott Subject: RE: CARE Settlement Agreement Oderman and Mr. Fragner. You can . Thank you. Hi Thuy, I was in the process of sending them to Mr. Oderman, and retaining one set of which I can make certified copies for Scott. Please let me know if you do not wish to do this. Mr. Oderman stated he would be glad to provide them to the parties. They have not been mailed yet. Connie -----Original Message----- From: Vi, Thuy Sent: Wednesday, February 12, 2003 9:03 AM To: Brockway, Connie Subject: CARE Settlement Agreement Z Hi Connie, I dropped off 4 original copies of the Citizens Against Redevelopment Excess Settlement Agreement �- last Friday. Please let me know when I can come down to pick up 2 sets of the executed originals for y opposing counsel. 9)ef Xd7 ;.: 1 0 • rV Thank you. Thuy Vi, Secretary to Scott Field ext. 5558 K • OF HUNTINGTON BEACH* MEETING DATE: February 3, 2003 DEPARTMENT ID NUMBER: CA 03-01 Council/Agency Meeting Held: _"_3_-(-)3 Deferred/Continued to: pproved ❑ Conditionally Approved ❑ Denied City Clerk's ignature Council Meeting Date: February 3, 2003 Department ID Number: CA 03-01 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL/REDEVELOPMENT AGENCYEACTION Q SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS; T - REDEVELOPMENT AGENCY CHAIRPERSON ANQMEMBERS SUBMITTED BY: JENNIFER McGRA ity Attorney and General C&nsel RAY SILVER, City Ad inistratorlExecutive Director. PREPARED BY: JENNIFER McGRAT ty Attorney and General Counsel DAVID BIGGS, Directo of Economic Development/Deputy Executiv Director SUBJECT: Approve Settlement Agreement to resolve the following suits regarding the Strand Project: Citizens Against Redevelopment Excess, etc., et al vs. City of Huntington Beach, etc. et at, Orange County Superior Court Case No. 811519, Court of Appeals Case No. G027828 (CARE 0; Citizens Against Redevelopment Excess, etc., et at vs. City of Huntington Beach, etc. et at, Orange County Superior Court Case No. OOCC14550, Court of Appeals Case No. 030388 (CARE ll); and Citizens Against Redevelopment Excess vs. City of Huntington Beach, etc., et at., Orange County Superior Court Case No. 02CCO0344 ( CARE Ill) Statement of Issue, Funding Source, Recommended Action, Alternative Actlon(s), Analysis, Environmental Status, Attachment(sj Statement of Issue: Whether to enter into a Settlement Agreement and a Fourth Amendment to the Abdelmuti OPA (Jack's Surf Shop) in order to settle three lawsuits challenging the Strand Project. Funding Source: RDA Cap Project ArealAdministration City Attorney- $100,0001 Account # 30515101.69375 E -1 . G:1RCA120031CARE.doc -Z= 1/29/2003 2:18 PM REQUEST FOR • NCI UREDEVELOPMENT AR ENCY ACTION MEETING DATE: February 3, 2003 DEPARTMENT ID NUMBER: CA 03-01 Recommended Action: 1. That the City Council and Redevelopment Agency approve, authorize the Mayor and Chairperson to sign, and the City Clerk and Agency Clerk to attest to the "SETTLEMENT AGREEMENT AND MUTUAL RELEASE" by and among Abdelmuti Development Company, Citizens Against Redevelopment Excess, an unincorporated association, James and Victoria Lane, Ronald and Ann Mase, the City of Huntington Beach, the Redevelopment Agency of the City of Huntington Beach, and CIM/Huntington, LLC. 2. That the Redevelopment Agency approve, authorize the Chairperson to sign, and Agency Clerk to attest to the "FOURTH AMENDMENT TO OWNER PARTICIPATION AGREEMENT" by and between the Redevelopment Agency and Abdelmuti Development Company. Alternative Action{s): Do not approve the Settlement Agreement and Fourth Amendment to the OPA. Analysis: To date, Abdelmuti and Citizens Against Redevelopment Excess ("CARE") have sued the City and Agency three times regarding the CIM redevelopment project for Blocks 104/105 (`The Strand"). The first suit, known as CARE 1, challenged the June 1999 DDA between CIM and the Agency on the grounds that (1) the DDA committed the City to incur a long-term indebtedness without the approval of two-thirds of the electorate; and (2) the Agency violated CEQA because it failed to prepare an EIR for the DDA. At the trial level, the Agency won on both claims. At the Court of Appeal, the Agency prevailed on the CEQA claim, but lost on the long-term indebtedness issue. In part to cure the long-term indebtedness issue, Agency Staff and CIM negotiated an Implementation Agreement to the DDA to provide an alternative form of financing consistent with the Court decision. The Agency approved the Implementation Agreement on October 21, 2002. In CARE 11, CARE challenged the November 2000 amendment to the Downtown Parking Master Plan on the ground the City did not comply with CEQA. The Downtown Parking Master Plan was adopted in 1995 for the Downtown Area adjacent to Main Street. The Parking Plan modified the citywide parking standards to allow for "shared parking" in Downtown. Instead of requiring all parking to be located on -site (like in a strip mall), parking would be shared through a City -subsidized parking lot, metered street parking, and on -site parking through complementary uses (e.g. offices and movie theater could share parking, since their customers arrived a different times). Under the 1995 Parking Plan, the first 500,000 square feet of commercial development would be able to use shared parking, but further development would be subject to the standard on -site parking standards. In December 2000, the City Council reviewed the Parking Plan, finding that there was a surplus of parking, and consequently increased the shared parking threshold from 500,000 to GARCA120031CARE.doc -3- 1/29/2003 2:21 PM REQUEST FOR • NCIUREDEVELOPMENT AENCY ACTION MEETING DATE: February 3, 2003 DEPARTMENT ID NUMBER: CA 03-01 715,000 square feet of commercial square footage. CARE and Abdelmuti challenged this amendment because it facilitated The Strand development. In fact, other Downtown owners have benefited from the Parking Master -Plan. For example, Oceanview Promenade (Abdelmuti) received a 132 space parking variance, and pursuant to its CUP, only 2 spaces were required on site. Instead, at least 132 public parking spaces were required within 350 feet of the project. Both The Strand parking garage (403 spaces), the Main -Pier Parking Garage (over 600 spaces), and street parking more than meet these requirements for Oceanview Promenade. At the trial court, the City prevailed. CARE 11 is now on appeal, but the appeal has been stayed while settlement discussions continue. On October 21, 2002, the City approved the land use entitlements for The Strand as well as approving an implementation agreement modifying the CIM DDA to correct the financing issues found unconstitutional in the CARE 1 decision. On November 21, 2002, CARE and Abdelmuti filed CARE !11 challenging the land use entitlements, the implementation agreement and CEQA compliance for the October 21, 2002 actions. On October 14, 2002 and November 18, 2002, the City Council provided staff direction on negotiating a settlement agreement to bring these years of litigation to a close. These negotiations have been successful and staff recommends the approval of the attached Settlement Agreement. The principal terms of the settlement are as follows: Attorney's fees. At the beginning of negotiations, CARE sought recovery of $225,000 in attorney's fees. They claim they had incurred fees in excess of that amount. Arguably, they may be able to recover some attorney's fees in connection with the partially favorably appellate ruling in CARE I. However, no attorney's fees have been awarded to date. The Settlement Agreement provides that the City will pay $100,000 in attorney's fees and CIM will pay $75,000 of attorney's fees to Abdelmuti and CARE. 2. Parking. The focus of the settlement negotiations has been the impact of The Strand on parking presently available for office tenants of Abdelmuti (Oceanside Promenade, 101-115 Main Street and 406-410 Pacific Coast Highway) and to a lesser degree, the Lanes (125-127 Main Street) and the Mases (123 Main Street). To address these concerns, Abdelmuti's redevelopment agreement will be amended to provide that if available shared parking usage in The Strand garage and the Main Pier garage exceed 85% of parking spaces during regular Monday through Friday business hours, the City will be obligated to initiate a parking study and present reasonable solutions to address the parking insufficiency. Further, the Agency will reimburse Abdelmuti the cost of any parking pass increases in excess of 10% GARCA120031CARE.doc -4- 1/2912063 2:18 PM REQUEST FOR COUNCIL/REDEVELOPMENT AGENCY ACTION MEETING DATE: February 3, 2003 DEPARTMENT ID NUMBER: CA 03-01 per year for the first five years following the settlement and 6% per year for all subsequent years. Asa matter of background, currently, .:annual parking passes for -Main -Street- and -the beach .. cost $125. Abdelmuti is specifically concerned that parking may become unavailable for its tenants during Monday through Friday business hours. To address that concern, the agreement allows the City or Agency -to create a new parking pass that could only be used during normal business hours. It is only•the cost of -that new pass that would be limited. This reimbursement provision is limited to 130 parking passes for Abdelmuti. It is also being extended to five parking passes each for the Lanes and the Mases. Environmental Status: Not applicable. Attachment(s): RCA Author: SFF GARCA120031CARE.doc -5- 1/29/2003 5:25 PM • ATTACHMENT #1 0 • CITY OF HUNTINGTON BEACH Inter -Department Communication TO: HONORABLE CONNIE BOARDMAN, MAYOR, AND MEMBERS OF THE CITY COUNCIL FROM: Scott Field, Assistant City Attorney DATE: January 29, 2003 SUBJECT: CARE Litigation This is the final version of the Settlement Agreement. It is not signed by the City Attorney because it has not yet been signed by Jim Lane. We will forward the fully signed agreement by way of a Late Submittal to the City Clerk. Scott Field Assistant City Attorney Attachment GARE1.1112003 Memos`:CARE.doc Hej �CITY OF HUNTINGTON BEACH Inter -Department Communication ,3-0 1 TO: HONORABLE CONNIE BOARDMAN, MAYOR, AND MEMBERS OF THE CITY COUNCIL REDEVELOPMENT AGENCY CONNIE BROCKWAY, CITY CLERK J RAY SILVER, CITY ADMINISTRATOR i FROM: SCOTT FIELD, ASSISTANT CITY ATTORNEY � I Q PD � �to JrJ' 'IYl DATE: February 3, 2003 Q�'R .�0�lt�o �t SUBJECT: Late Transmittal In Connection With Item E-14 on February 3, 2003, City Council Agenda — Approve Settlement Agreement To Resolve Three Lawsuits Involving Abdelmuti Development Company Owner Participation Agreement (OPA)/Jack's Surfboard; Jim Lane, CIM/Huntington LLC; and the Downtown Project, The Strand: Citizens Against Redevelopment Excess, etc., et al. vs. City of Huntington Beach, etc., et al. (CARES I, II and III) At the time that the City Attorney's Office submitted the above -referenced Settlement Agreement, it had not yet received the signatures of all the parties to the agreement. We now have the signature on behalf of CARE, the Lanes and CIM. Attached please find a copy of the settlement agreement with signatures of all the parties as well as the City Attorney. Scott Field Assistant City Attorney Attachment G:1F[ELD12003 Menios!CARE 2-3.doc • 0 SETTLEMENT AGREEMENT AND MUTUAL RELEASE This Settlement Agreement and Mutual Release (the "Settlement Agreement") is entered into to be effective as of the P day of February 2003 (the "Effective Date), by and among AbdeImuti Development Company, a California general partnership (the "Participant"), Citizens Against Redevelopment Excess, an unincorporated association in the City of Huntington Beach ("CARE"), James A. Lane and Victoria Jean Lane, as Trustees of the James A. Lane and Victoria Jean Lane 1997 Trust, (the "Lanes"), the City of Huntington Beach, a municipal corporation (the "City"), the Redevelopment Agency of the City of Huntington Beach, a public body corporate and politic (the "Agency") and CINmuntington, LLC, a California limited liability company ("CIM") (collectively referred to herein as the "Parties" and individually sometimes referred to herein as a "Party"). RECITALS A. Participant and the Agency entered into an Owner Participation Agreement dated May 28, 1991, providing for a mixed use office and retail commercial development on the real property located at 101-115 Main Street and 406-410 Pacific Coast Highway, Huntington Beach (APN 024-153-23) ("Participant's Property"). Said Owner Participation Agreement was amended by a First Amendment to Owner Participation Agreement dated November 4, 1991, a'Second Amendment to Owner Participation Agreement entered into on or about August 31, 1992, and a Third Amendment to Owner Participation Agreement entered into on or about December 30, 1994. (The original Owner Participation Agreement as amended by the First, Second, and Third Amendments thereto is collectively referred to herein as the "Abdelmuti OPA.") Pursuant to Conditional Use Permit No.'91-35, Participant completed and currently operates the development on the Participant's Property that is commonly known as "Oceanview Promenade." Condition No. 18 of CUP #91-35 stated that 132 off -site parking spaces be provided within 350 feet of Oceanview Promenade. Such spaces have been provided pursuant to a temporary plan approved by the City pursuant to Condition No. 17 of CUP #91-35. B. The Agency and CIM Group, LLC, predecessor in interest to CIM, entered into a Disposition and Development Agreement dated June 17, 1999, and three Implementation Agreements dated April 6, 2000, March 5, 2001, and October 21, 2002 (collectively referred to as the "CIM DDA"). The CIM DDA provides for the development of a mixed use retail commercial and hotel development (the "Strand Project") on the real property described in the CIM DDA (the "Strand Project Site"). The Strand Project includes 411 parking spaces, including 6 on -site surface level parking spaces and a 405-space two -level subterranean public parking structure on the Strand Project Site (the "Strand Public Parking Structure"). C:';W1\p0WS%Temporary lntemet Files'.O1.K3034`CARE agrmnt-clean.Vc Lau printed t 128!2003 8: t 9 AM C. On November 20, 2000, the City amended the parking component of the Downtown Specific Plan pursuant to Ordinance 3483. The amended parking component of the Downtown Specific Plan is known as the Downtown Parking Master Plan (the "DPMP"). D. At the meeting of the City Council of October 21, 2002, the City Council of the City heard certain appeals from the Planning Commission's certification of the environmental impact report for the Strand Project (the "Strand Project EIR") and approval of various entitlements for the development of the Strand Project, including Tentative Tract Map No. 16406, Conditional Use Permit No. 99-45, Special Permits Nos. 2-6, inclusive, and CDP 1\o. 99-16 (the "Strand Project Entitlements"). At said City Council meeting the City Council denied all appeals, certified the Strand Project EIR, made certain findings in connection therewith, and upheld the approval of the Strand Project Entitlements by the Planning Commission. As part of the Strand Project Entitlements, the Planning Commission and the City Council found and approved that the 411 parking spaces contained within the Strand Project complied with the requirements of the DPMP, constituted the approved permanent plan for the 132 parking spaces required for Oceanview Promenade in satisfaction of Conditions 17 and 18 of CUP #91-35, and satisfied the parking obligations of the Agency under the Abdelmuti OPA. E. CARE filed the following lawsuits concerning the subject matter of this Settlement Agreement and Release (the "Pending Litigation"): 1. Citizens Against Redevelopment Excess, etc., et al vs. City of Huntington Beach, etc. et al, Orange County Superior Court Case No. 811519, Court of Appeals Case No. G027828, concerning the validity of the CIM DDA as originally approved and entered into and related Cooperation Agreement between the City and the Agency; 2. Citizens Against Redevelopment Excess, etc., et al vs. City of Huntington Beach, etc. et al, Orange County Superior Court Case No. OOCC 14550, Court of Appeals Case No. 030388, concerning the validity of the City's approval of the DPMP; and 3. Citizens Against Redevelopment Excess vs. City of Huntington Beach, etc., et al., Orange County Superior Court Case No. 02CCO0344 concerning the validity of the Third Implementation Agreement to the CIM DDA, the Strand Project Entitlements and the Strand Project EIR. In connection with this case, Participant and CARE represent and warrant that (i) they have published a summons pursuant to Code of Civil Procedure § 860 et seq., providing that any responsive pleading to the complaint in this action is due not later than January 16, 2003, (ii) C'NINDOWs':Temporary Internet Files':OLK3034':CARF agrmnt-clean-OOP Last primed 1 28.2003 8-19 AM • 0 that as of the Effective Date, Participant and CARE have no actual knowledge that an answer has been filed, and (iii) Participant and CARE have not extended the time for any person to answer or otherwise respond to the complaint, except the City, Agency and CIM. The Parties agree that as of the Effective Date of this Agreement, all persons not already parties to Case No. 02CCO0344 are barred from filing any action challenging the validity of the Third Implementation Agreement to the CIM DDA, the Strand Project Entitlements and the Strand Project EIR. F. The Lanes are the owners of that certain real property located adjacent to the Strand Project Site at 125-127 Main Street (APN 024-153-04). The Lanes are concerned about the impacts of the Strand Project on their property, including without limitation with respect to impacts on traffic circulation and parking supply. G. On November 15, 2002, CARE and Participant appealed the Strand Project Entitlements to the California Coastal Commission. Said appeal was denied on January 10, 2003. CARE, Participant and the Lanes represent and warrant that they have taken no action, and are unaware of any other person taking any action to judicially challenge the Coastal Commission decision. H. Participant, CARE and the Lanes represent and warrant that they have not filed any legal actions other than the Pending Litigation that challenge the validity of the Third Implementation Agreement to the CIM DDA, the Strand Project Entitlements, and/or the Strand Project EIR and further represent and warrant that they have no actual knowledge of the filing of any such legal actions by any third parties . I. In addition to the Pending Litigation, Participant has threatened to file a Iawsuit concerning whether the Agency has complied with its obligations under the Abdelmuti OPA concerning parking for the Oceanview Promenade (including without limitation whether the Agency has complied with its obligations under Section 201.6 of the Abdelmuti OPA and the City has complied with its obligations under Conditions 17 and 18 of CUP ft 91-35) and whether CIM has wrongfully induced the Agency to interfere with and breach said obligations; further, Participant and CARE have threatened to file a lawsuit concerning whether the Coastal Commission denial of the appeal of City's approval of the Strand Project Entitlements was valid (collectively, the "Threatened Litigation"). J. Agency, City and CIM dispute the validity of the claims set forth in the Pending Litigation and threatened by way of the Threatened Litigation. NOW, THEREFORE, the Participant, CARE, the Lanes, the Agency, the City and C'.W1ND0WS`:Temporary Internet Files\OLK3034\CARE agrmnt-ctean_.�GF Last printed 1 `28;'2003 8:19 AM 0 0 CIM agree as follows: I . Purpose. The Parties have concluded that, in light of the costs of litigation and the uncertainty regarding the outcome of the Pending Litigation and the Threatened Litigation, it would be in the best interests of all concerned to settle the Pending Litigation and the Threatened Litigation on the terms set forth below. Furthermore, the Parties desire to resolve their disputes involved in the Pending Litigation and the Threatened Litigation, to further their respective purposes, and to set forth procedures for the protection of their respective interests. The City Council of the City and the Redevelopment Agency of the City have determined that the public interest is served by settlement of the Pending Litigation and the Threatened Litigation on the terms specified herein. 2. Recitals. The recitals set forth at the beginning of this Settlement Agreement shall be deemed to be a part of this Settlement Agreement as though set forth in full. 3. Fourth Amendment to the Abdelmuti OPA. Concurrently with entering into this Settlement Agreement, the City, Agency and Participant shall execute the Fourth Amendment to the Abdelmuti OPA, a true and correct copy of which is attached hereto, labeled "Exhibit A" and incorporated herein by this reference. 4. Dismissal of Pendiniz Litigation and Withdrawal of Coastal Commission Appeal. Immediately upon City and. Agency approval and execution of this Settlement Agreement and the Fourth Amendment to the Abdelmuti OPA, CARE and Participant shall file Requests for Voluntary Dismissal with prejudice of the Pending Litigation. Notice of entry of the dismissals shall be served promptly on the Parties by the counsel for CARE following entry of the dismissals. At the same time, Participant and CARE shall promptly withdraw their appeal to the Coastal Commission of City's approval of the Strand Project Entitlements. 5. A r�eement not to File Threatened Litigation or New Litigation. Participant, the Lanes, and CARE covenant and agree not to file any Threatened Litigation. Participant, the Lanes and CARE further covenant and agree not to file or join in the filing of any Threatened Litigation and not to file, join or otherwise fund or support any other complaint, petition, or other judicial proceeding, pleading or action challenging (i) the validity and/or the approval of the Strand Project Entitlements and/or the CIM DDA by the City and/or Agency, (ii) the adequacy of the Strand Project EIR, (iii) whether the City and/or Agency has complied with the California Environmental Quality Act in connection with their approval of the Strand Project Entitlements and/or the Third Implementation Agreement, and (iv) whether the California Coastal Commission validly denied the appeal of City's approval of the Strand C::WINDOWS'.Tempamry• [ntemet Piles'.OLK3034':CARE agrmnt-clean_.ts Iasi primed U28'2003 8A9 AM 0 • Project Entitlements (collectively, the "New Litigation") 6. Release by City/Agency_ and CIM. As of the Effective Date of this Agreement, and excepting only the obligations arising out of or created by this Agreement, the City, Agency, and CIM each, for themselves and their respective successors and assigns (collectively, the "Section 6 Releasing Parties"), hereby release and discharge Participant, CARE and the Lanes, and their heirs and assigns, shareholders, officers, officials, directors, employees, agents, successors and assigns as applicable (collectively, the "Section 6 Released Parties"), from any and all sums of money, accounts, claims, liabilities, demands, contracts, actions, debts, controversies, agreements, damages, attorney fee claims, and causes of action whatsoever or of whatever kind or nature, whether known or unknown, suspected or unsuspected, which the Section 6 Releasing Parties, or any of them or their respective successors or assigns may possess relating to or arising out of or in connection with the subject matter of the Pending Litigation, the Threatened Litigation, the New Litigation, the Strand Project, the Strand Project Entitlements, the Strand Project EIR, the Abdelmuti OPA (except to the limited extent of the reserved rights and claims expressly set forth in Section 8 of this Settlement Agreement), or the CIM DDA (collectively, the "Section 6 Released Claims"). In this regard, to the full extent of the Section 6 Released Claims, the Section 6 Releasing Parties each acknowledge that they are familiar with Section 1542 of the Civil Code, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in its favor at the time of executing the release, which if known by him must have materially affected the settlement with the debtor. The Section 6 Releasing Parties each waive and relinquish any right or benefit which they have or may have under Civil Code § 1542 against the Section 6 Released Parties to the full extent that such rights or benefits may lawfully be waived. In connection with such waiver and relinquishment, the Section 6 Releasing Parties each acknowledge that they or their respective attorneys may hereafter discover claims or facts in addition to, or different from, those they now know or believe to exist with respect to the Section 6 Released Claims, but that it is their intention to settle and release the Section 6 Released Claims, fully, finally and forever. 7. Release by Participant, CARE and the Lanes. As of the Effective Date of this Agreement and the Fourth Amendment to the Abdelmuti OPA, and excepting only the obligations arising out of or created by this Agreement, Participant, CARE, and the Lanes each, for themselves and their respective successors and assigns (collectively, the "Section 7 Releasing Parties"), hereby release and discharge CIM, Agency and City, and their heirs and assigns, shareholders, officers, officials, directors, employees, agents, successors and assigns as applicable (collectively, the "Section 7 Released Parties"), from any and all sums of C:1WINDOWS%Temporary lntemet Fites%.O1_K3034':CARE agrmnt-clean. 51c Last printed 1128-2003 8:19 AM money, accounts, claims, liabilities, demands, contracts, actions, debts, controversies, agreements, damages, attorney fee claims, and causes of action whatsoever or of whatever kind or nature, whether known or unknown, suspected or unsuspected, which the Section 7 Releasing Parties, or any of them or their respective successors or assigns may possess relating to or arising out of or in connection with the subject matter of the Pending Litigation, the Threatened Litigation, the New Litigation, the Strand Project, the Strand Project Entitlements, the Strand Project EIR, the Abdelmuti OPA (except to the limited extent of the reserved rights and claims expressly set forth in Section 8 of this Settlement Agreement), or the CIM DDA (collectively, the "Section 7 Released Claims"). The Section 7 Releasing Parties each acknowledge that they are familiar with Section 1542 of the Civil Code, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in its favor at the time of executing the release, which if known by him must have materially affected the settlement with the debtor. The Section 7 Releasing Parties each waive and relinquish any right or benefit which they have or may have under Civil Code § 1542 against the Section 7 Released Parties to the full extent that such rights or benefits may lawfully be waived. In connection with such waiver and relinquishment, the Section 7 Releasing Parties each acknowledge that they or their respective attorneys may hereafter discover claims or facts in addition to, or different from, those they now know or believe to exist with respect to the subject matter of this Agreement, but that it is their intention to settle and release the matters which are the subject of this Settlement Agreement, fully, finally and forever. 8. Limited Modification of Abdelmuti OPA; No Release of Claims Arising From Acts or Omissions After Effective Date and No Release of Claims Relatiniz to Mulli an Action. Notwithstanding the foregoing Sections 6 and 7, it is understood and agreed that this Settlement Agreement is not intended to amend the Abdelmuti OPA, as amended by the Fourth Amendment to the Abdelmuti OPA, except that from and after the Effective Date, Agency's and City's obligations to provide parking for the benefit of the Participant's Property as referred to in Section 201.6 of the Abdelmuti OPA, Conditions 17 and 18 of CUP # 91-35 and the DPMP shall be limited to those Agency obligations set forth in the Fourth Amendment to the Abdelmuti OPA. In addition, nothing set forth in this Settlement Agreement, the Abdelmuti OPA, or the Fourth Amendment to the Abdelmuti OPA is intended by either Agency or Participant to release the rights of any Party against any other Party arising out of acts or omissions of the other Party after the Effective Date of this Settlement Agreement, including without limitation future acts or omissions of either Agency or Participant arising out of the Abdelmuti OPA or the Fourth Amendment to the Abdelmuti OPA. Finally, this Agreement has no applicability to the rights, claims or obligations as between Participant, City or Agency arising out of Mulligan v. Redevelopment Agency, and C \WINDOWSUemporary Intemet FilesiOLK30341CARE agrmnt-clean_.&c Last printed 1:2812003 9:19 AM r 0 Related Cross -Claims, OCSC No. 740099 and Court of Appeal No. G028980. 9. Limitation on Prevailing Rates in Public Parking Structure for the Lanes. The Agency covenants to extend to the Lanes with respect to their property the same rights and benefits that the Agency has extended to Participant with respect to Participant's Property that are set forth in Paragraph 3 of the Fourth Amendment to the Abdelmuti OPA, provided, that Agency's obligation to reimburse the Lanes for the cost of Annual Public Parking Passes or Business Hour Parking Passes in excess of the Threshold Cost Increase, as applicable, shall be limited to a maximum of five (5) such passes for the Lanes and their respective tenants. 10. Cooperation During Construction of Strand Project; Minimization of Interference with Operation of Businesses. CIM shall incorporate in the construction contract for the Strand Project a requirement that the contractor use good construction practices in preventing unreasonable adverse effects on neighboring properties owned by Participant and the Lanes. CIM further agrees to present complaints from such Parties to the contractor and to have the contractor meet with such neighbors, and CIM shall cooperate in good faith with its contractor and such Parties to address any complaints, including compliance with City ordinances and regulations and City -imposed mitigation measures relating to such Parties' property. The covenants contained in this Section are between CIM, on the one hand, and Participant and the Lanes only, and do not include the Agency or the City. No rights shall accrue to Participant and the Lanes against the City or Agency if CIM should materially breach the covenants of this Section. 11. Parking_Manaizement Plan of Strand Project. CIM shall submit for Agency approval a parking management plan for the Strand Public Parking Structure consistent with the permanent parking plan approved by the City for the Participant's Property and the DPMP. The parking management plan may address designation of short-term parking, employee parking, attendant parking and other relevant issues. Agency and CIM shall consult with Participant prior to CIM's submittal of the parking management plan to the City. 12. Costs and Attorneys Fees. Except for the payments referred to in the second paragraph of this Section, each Party will bear its own costs and expenses, including, but not limited to, attorneys' fees, incurred or to be incurred in connection with the Pending Litigation and in connection with negotiating and preparing this Settlement Agreement and in carrying out its obligations under this Settlement Agreement. Within fifteen (15) days of the Effective Date, Agency shall pay the sum of One Hundred Thousand Dollars ($100,000) and CIM shall pay Seventy -Five Thousand Dollars ($75,000) to Rutan & Tucker, LLP, the attorneys for Participant and CARE as partial reimbursement for attorneys' fees incurred by Participant and CARE in connection with the CAWINDOWSUemporary Internet Files!OLK7265':CARE agrmnt-cleanY.PC Last printed 128.2003 1 1:37 A&1 • i Pending Litigation. 13. Notices. Any notices, certificates, or other communications hereunder shall be given either by personal delivery to the Parties or to City as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the addresses specified below. Any party may designate a different address to which subsequent notices, certificates or other communications shall be sent by notifying the other Parties via personal delivery, a reputable overnight carrier or U. S. certified mail -return receipt requested: CIM John Given, Vice President CIM Group 6922 Hollywood Boulevards, Ninth Floor Hollywood, California 90028 With Copy To: Matthew Fragner, Esq. Liner, Yankelevitz, Sunshine & Regenstreif, LLP 1100 Glendon Ave., 14th Floor Los Angeles, California 90024 Abdelmuti Abdelmuti Development Company 101 Main Street Huntington Beach, California 92648 With Copy To: Jeffrey M. Oderman, Esq. RUTAN & TUCKER, LLP 611 Anton Boulevard, Ste. 1400 Costa Mesa, California 92626-1998 CARE Jeffrey M. Oderman, Esq. RUTAN & TUCKER, LLP 611 Anton Boulevard, Ste. 1400 Costa Mesa, California 92626-1998 City/Redevelopment Agency City Clerk City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 C:`.WtN'DOwSITemporary Internet Files`.OLK3034'-,CARE agrmnt-clean.90c Last printed 1J28;2003 9:19 AM With Copy To: Jennifer McGrath, City Attorney City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 C:\WfNDOWS\Temporary Internet Files'OLK3034�CARE agrmnt-elean_.!�c Last printed 1/29/2003 8:19 AM • 0 James A. Lane and James A. Lane and Victoria Jean Lane, Victoria Jean Lane as Trustees of the James A. Lane and Victoria Jean Lane 1997 Trust 637 Frankfort Avenue Huntington Beach, California 92648 With Copy To: Jeffrey M. Oderman, Esq. RUTAN & TUCKER, LLP 611 Anton Boulevard, Ste. 1400 Costa Mesa, California 92626-1998 14. Effect of Headings. The subject headings of the sections of this Settlement Agreement are included for convenience only and will not affect the construction or interpretation of any of its provisions. 15. Word Usage. Unless the context clearly requires otherwise: (a) Plural and singular numbers will each be considered to include the other; (b) The masculine, feminine, and neuter genders will each be considered to include the others; (c) "Shall," "will," "must," "agree," and "covenants" are each mandatory; (d) "May" is permissive; (e) "Or" is not exclusive; and (f) "Includes" and "including" are not limiting. 16. Entire Agreement; Modification; Waiver. Except for the Abdelmuti OPA and the Fourth Amendment to the Abdelmuti OPA as to the Participant and the Agency, and except for the CIM DDA as to the Agency and CIM, this Settlement Agreement constitutes the entire agreement between and among the Parties pertaining to the subject matter contained herein and supersedes all prior and contemporaneous agreements, representations, and understandings of the Parties with respect thereto. Except as set forth hereinbelow, no supplement, modification, or amendment of this Settlement Agreement will be binding unless executed in writing by all the Parties, and no waiver of any of the provisions of this Settlement Agreement will be binding unless approved in writing by the Party or Parties to be C::WINDOWSITernparary Internet riles`.OLK303314%..CARE agrmnt-cleattlIff Last printed 1:28 Z003 9:19 AM 0 0 charged. No waiver of any of the provisions of this Settlement Agreement will constitute a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. Notwithstanding the foregoing, any provision of this Settlement Agreement that affects or concerns less than all the Parties may be amended, modified, or waived by only the Parties or Party so affected or concerned. 17. Severabilit . Should any of the provisions of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms, or provisions shall not be affected thereby and said illegal or invalid part, term, or provision shall be deemed not to be a part of this Settlement Agreement. 18. Third Party Beneficiaries. Nothing in this Settlement Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Settlement Agreement on any persons other than the Parties to- it and their respective successors and assigns. 19. Litigation Costs. If any legal action or any mediation or arbitration or other proceeding is brought for the enforcement or interpretation of this Settlement Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any provision of this Settlement Agreement, each Party or Parties shall bear its own attorneys' fees and other costs (including experts' fees and costs) incurred in that action or proceeding. 20. Governing Law. This Settlement Agreement shall be governed, construed, interpreted and enforced in accordance with and under the laws of the State of California. 21. No Waiver of Police Power. Nothing in this Settlement Agreement shall be understood or construed to alter, affect or limit in any way the police power which may be exercised by the City nor to require approval of any applications or entitlements of any kind or any part thereof. 22. Construction. The provisions of this Settlement Agreement shall be liberally construed to effectuate its purposes. The language of this Settlement Agreement shall be construed simply according to its plain meaning and shall not be construed for or against any Party, as each Party has participated in the drafting of this Settlement Agreement and has had its counsel review it. 23. Successors and Assigns. This Settlement Agreement shall be binding on and shall inure to the benefit of the Parties and their respective heirs, legal representatives, successors, and assigns. For purposes of this Settlement Agreement, the successors and assigns of Participant shall be deemed to be the successor(s) to Participant's fee ownership interest in the Participant's Property and the successors and assigns of the Lanes shall be G'•«'INDOWS`,Temporary Internet Fi1es`1OLK7265\CARE agrmnt-clejnVtc Last printed 1'28:2003 I :27 pM • deemed to be the successor(s) to the Lanes' fee interests in their property described in Recital F of this Settlement Agreement. 24. Authorizations. All persons and entities executing this Settlement Agreement and other documents on behalf of the respective Parties certify and warrant that they have the capacity and have been duly authorized to so execute the documents on behalf of the entity so indicated. Each signatory shall also indemnify the other Parties to this Settlement Agreement, and hold them harmless, from any and all damages, if the signatory is not so authorized. The Parties hereto have executed this Agreement as of the dates set forth below. Dated: - - REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH APPROVED AS TO FORM: Agency General Counsel By: Agency eneral C sel ATTEST: By: City Clerk CAWINDOWS\Temporary Internet Fdes10LK7265\CARE agrmnt-c1eaV2c "st printed 1 28 2003 1:27 PM KANE, BALLMER & BERKMAN By: ,yam � • Murray O. ffane, Esq. Special Counsel for Redevelopment Agency of the City of Huntington Beach JAMES A. LANE and VICTORIA JEAN LANE, AS TRUSTEES OF THE JAMES A. LANE AND VICTORIA JEAN LANE 1997 TRUST Dated: James A. Lane Dated: Victoria Jean Lane APPROVED AS TO FORM: RUTAN & TUCKER, LLP By:� Jeffrey M. Oderman, Esq. Attorney for James Lane and Victoria Jean Lane, Trustees Dated: CITIZENS AGAINST REDEVELOPMENT EXCESS ("CARE") APPROVED AS TO FORM: RUTAN & TUCKER, LLP Jeffrey M. Oderman, Esq. C:IWINDQWSkTEMP1CARE agi -doe _ 12_ Last prinked 1i29,2003 10:23 AM 0 KANE, BALLMER & BERKMAN LON Murray O. Kane, Esq. Special Counsel for Redevelopment Agency of the City of Huntington Beach Dated: r Dated: �'.e�i : 3 a o 0 3 APPROVED AS TO FORM: RUTAN & TUCKER, LLP JAMES A. LANE and VICTORIA JEAN LANE, AS TRUSTEES OF THE JAMES A. LANE AND VICTORIA JEAN LANE 1997 TRUST James A. Lane Victoria Jean Lane By: Jeffrey M. Oderman, Esq. Attorney for James Lane and Victoria Jean Lane, Trustees Dated: �4 S, a OQ CITIZENS AGAINST REDEVELOPMENT EXCESS ("CARE") By: CAWINDOWSUemparary Internet Res\OLK7265iCARE agrmnt-clef loc Last printed 1131:12003 5:22 P-4 9 Murray O. Kane, Esq. Special Counsel for Redevelopment Agency of the City of Huntington Beach JAMES A. LANE and VICTORIA JEAN LANE, AS TRUSTEES OF THE JAMES A. LANE AND VICTORIA JEAN LANE 1997 TRUST Dated: James A. Lane Dated: Victoria Jean Lane APPROVED AS TO FORM: RUTAN & TUCKER, LLP By: WJeey M. derman, Esq. Attorney for James Lane and Victoria Jean Lane, Trustees Dated: APPROVED AS TO FORM: RUTAN & TUCKER, LLP By: W4,,,,, fjeffrey M. Edlerman, Esq. Attorney for CARE CITIZENS AGAINST REDEVELOPMENT EXCESS ("CARE") wo C:\W1ND0WS`:Temporary Internet Files`-.01.0034'..CARE agrmnt-cleanl q Last printed 1! 28!2003 8:19 AM 0 Dated:.211 .2- / O 3 APPROVED AS TO FORM: CITY ATTORNEY B City Attorney ATTEST: By: r City Clerk Dated: _2l /.Z f O3 APPROVED AS TO FORM: RUTAN & TUCKER, LLP CITY OF HUNTINGTON BEACH ABDE A Cali `" A General Partner C:'MINDOWS-.Temporary Internet Files%-OLK3034'.CARE agrmnt-clejnV,! c Last printed 1/2812003 8:19 AM 0 By: QAA� - - &Ljj�� e rey M derman, Esq. Attorney for Abdelmuti Development Company Dated: CIM/HUNTIN�TGTON, LLC APPROVED AS TO FORM: LINER, YANKELEVITZ, SUNSHINE & REGENSTREIF, LLP By: Matthew C. Fragner, Esq. Attorney for CIM/HUNTINGTON, LLC C:'%WIND0WS'.Temporary Internet FHes'.0LK3034\.CARI; agnnnt-cleanlcisc Last printed 1/2912003 9:19 AM 02/03/2003 15:12 FAX 3104535901 0 LYS&R • 10002 Dated: ?-i 310 3 CIM/HUNTIri GTON, LLC By: APPROVED AS TO FORM: LINER, YANKELEVITZ, SUNSHINE & REGENSTREIF, LLP By: -- C-- ll-� 1Vlatthcw C. Fragner, A orney for CI_'VIM NTIN 0 r, LLC C:\W1ND0W S'\Temporuy lntemat Files10IK61W CARL• ap}mnt-cl- 1, l printcd 1/29/2003 3:51, PM FEB-03-20e3 15:24 310453590: 98x P.02 EXHIBIT A FOURTH AMENDMENT TO OPA [On pages following] FOURTH AMENDMENT TO OWNER PARTICIPATION AGREEMENT This FOURTH AMENDMENT TO OWNER PARTICIPATION AGREEMENT (the "Fourth Amendment") is dated as of February 3, 2003 (the "Effective Date"), and is entered into by and between the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH ("Agency") and ABDELMUTI DEVELOPMENT COMPANY ("Participant") (collectively, the "Parties"). RECITALS A. The Agency and Participant entered into that certain Owner Participation Agreement dated May 28, 1991, as amended by a First Amendment to Owner Participation Agreement dated November 4, 1991, by a Second Amendment to Owner Participation Agreement entered into on or about August 31, 1992, and by a Third Amendment to Owner Participation Agreement entered into on or about December 30, 1994 (collectively, the "Abdelmuti OPA"), which Abdelmuti OPA is incorporated herein by this reference. Reference herein to the Abdelmuti OPA shall include any and all Attachments thereto. B. Pursuant to the Abdelmuti OPA, Participant developed and operates certain improvements (the "Project") on real property described therein as "Oceanview Promenade." C. Pursuant to Section 201.6 of the Abdelmuti OPA, the Agency has certain obligations concerning the provision of parking spaces for the development and operation of Oceanview Promenade. The parties desire to enter into this Fourth Amendment to effectuate the provisions of said Section 201.6 by agreeing to a process to provide for the parking contemplated for Oceanview Promenade. D. The City Council has found and determined that the parking requirements for Oceanview Promenade as set forth in Conditions 17 and 18 to CUP # 91-35 are satisfied by the construction of the parking spaces to be provided in that certain public parking structure within the Strand Project (the "Strand Public Parking Structure") to be developed pursuant to TTM #16406, CUP #99-45, Special Permits #02-06, and CDP # 99-16 that were approved by the City Council on October 21, 2002 (the "Strand Project Entitlements"). The Agency has determined there is no necessity for providing additional offsite parking for any uses in Oceanview Promenade. E. The Agency, Participant, and other parties have entered into that certain Settlement • Agreement and Mutual Release dated as of February 3, 2003 (the "Settlement Agreement") to resolve certain pending and threatened litigation between the parties relating to the Strand Project and the adequacy of the parking to be provided for the benefit of the Participant in the Strand Public Parking Structure. This Fourth Amendment is part of the settlement addressed in the Settlement Agreement. F. The Parties are entering into this Fourth Amendment for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. TERMS Recitals. The foregoing Recitals are incorporated into this Fourth Amendment and are a part of hereof. 2. Use of Strand Public Parking Structure. Agency shall require the developer of the Strand Project to prepare for the approval of the Agency a parking management plan for the Strand Public Parking Structure consistent with the permanent parking plan approved by the City for the Site pursuant to Conditions 17 and 18 of CUP # 91-35 and consistent with the Downtown Parking Master Plan ("DPMP"), as such permanent plan and DPMP may be amended from time to time. The parking management plan may address designation of short-term parking, employee parking, attendant parking and other relevant issues. Agency shall consult with Participant and shall cause the developer of the Strand Project to consult with Participant prior to the developer's submittal of the parking management plan to the City of Huntington Beach. Participant acknowledges that because the Strand Public Parking Structure is a public parking facility to be constructed by tax-exempt bond funds, any member of the public may park and buy parking passes in that Structure. 3. Limitations on Prevailing Rates. The Parking Management Plan for the Strand Public Parking Structure may provide that parking passes be sold in addition to or as altemative(s) to the annual public parking passes the City currently sells (the "Annual Public Parking Passes"). (The Annual Public Parking Pass currently entitles the permittee to park in either the Downtown Parking Structure (located within the DPMP), and the beach -side parking lots. In the future, the Parties agree that City may limit the Annual Public Parking Passes to parking within the parking structures located within the boundaries of the DPMP.) Upon issuance of a Certificate of Occupancy for the Strand Project until September 20, 2032 (the last date Agency is entitled to have allocated and paid to it tax increment revenues from the Redevelopment Project) (herein, the "Redevelopment Project Termination Date"), Agency warrants, represents, and covenants to Participant that Agency will cause the City or the entity responsible from time to time for such matters to C.AWINDOWS\Temporary Intemet ri1es\GLK3034\CARE agrmnt-clean.doc either (i) continue to sell Annual Public Parking Passes that are available for tenants, employees, customers, and invitees of the businesses on the Site (on a non-discriminatory basis with the public generally) or (ii) sell a "Business Hours Parking Pass" as described herein. In the event the City or the entity responsible from time to time for selling such passes increases the cost of Annual Public Parking Passes by more than the Threshold Cost Increase, as defined below, then Agency agrees to do one of the following: A. Reimburse Participant (or at Participant's direction, Participant's tenants) by such excess amount for each such Annual Public Parking Pass up to a maximum of one hundred thirty (130) such Passes actually purchased by Participant or its tenants or their respective employees. (Such reimbursement is limited only to passes used by Participant, its tenants, and their respective employees; said 130 passes shall not be sold or made available to Participants' or its tenants' customers, or members of the general public); or B. Sell or cause the City or the entity responsible from time to time for selling such passes to sell to the public (including Participant and its tenants and employees) a Business Hours Parking Pass at a price which is equal to or less than the Threshold Cost Increase; or C. Sell or cause the City or the entity responsible from time to time for selling such passes to sell to the public (including Participant and its tenants and employees) a Business Hours Parking Pass or other alternative parking pass at a price which is more than the Threshold Cost Increase, and reimburse Participant (or at Participant's direction, Participant's tenants) by such excess amount for up to one hundred thirty (130) such Business Hours Parking Passes or alternative parking passes, provided such passes are only used by Participant or its tenants or their respective employees. Collectively, these three options will be referred to as the "Business Hours Parking Pass Subsidy." For purposes of this Fourth Amendment, the term "Threshold Cost Increase" shall mean a percentage increase in the cost of the Annual Public Parking Passes, calculated from January 1, 2003 to the date of any increase by the City or other entity responsible from time to time for selling such passes in the cost of Annual Parking Passes which exceeds (i) the higher of the percentage increase in the applicable Consumer Price Index ("CPI") or ten percent (10%) per annum for the first five (5) fulI calendar years, beginning January 1, 2003 ("Threshold Date"),and (ii) the percentage increase in the CPI for all subsequent years, beginning January 1, 2008. When calculating the Threshold Cost -19- C-`MINDOWS`Temporary Intemet F1es OLK3034!.CARF agrmnt-clean.doc Increase, all percentage increases shall be compounded annually. By way of example, the parking pass cost as of the Threshold Date is $125. After five years, the Threshold Cost Increase would be $201.31. By way of further example, after two years, the Threshold Cost Increase would be $151.25. If the City was charging $175 for an Annual Parking Pass in 2005, but the Certificate of Occupancy had not been issued for the Strand Project, then the Agency would not be obligated to provide the Business Hours Parking Pass Subsidy. However, if the Certificate of Occupancy was issued on July 1, 2005, then the Agency would be obligated to provide the Business Hours Parking Pass Subsidy as of that date, and would be obligated to reimburse Participant $11.88 for up to 130 parking passes (i.e., $175 — $151.25, divided by two for a half year subsidy), or otherwise provide one of the options permitted under the Business Hours Parking Pass Subsidy. For purposes of this Fourth Amendment, the term "Business Hours Parking Pass " shall mean a parking pass which entitles the holder to park a motor vehicle in a public parking lot or facility located within 350 feet of the Oceanview Promenade during week days (Monday through Friday, inclusive), excluding holidays, between the hours of 7:00 A.M. and 6:00 P.M. The term "CPI" means the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index for Urban Wage Earners and Clerical Workers, Los Angeles -Anaheim -Riverside Average, Sub -group "All Items (1982-1984 = 100)," or, if said index does not continue to be published or is not available to the Parties, the most closely comparable index to said index. 4. Participant's Notice of Parking Insufficiencx. If at any time after Participant commences use of the Strand Public Parking Structure, Participant determines that there are insufficient parking spaces actually made available for Participant and its tenants in the Structure during Business Hours based upon the actual use and needs of Participant and its tenants, then Participant may so notify the Agency in writing (the "Participant Parking Insufficiency Notice"). For purposes of this Fourth Amendment, the term "Business Hours" shall mean weekdays (Monday through Friday, inclusive), excluding holidays, between the hours of 7:00 a.m. and 6:00 p.m. Within sixty (60) days of receipt by Agency of a Participant Parking Insufficiency Notice, Agency shall cause the commencement and diligent completion of a study to determine whether or not, and to what extent, insufficient Business Hours parking has been made available for the needs of Participant and its tenants (the "Business Hours Parking Sufficiency Study"). The Business Hours Parking Sufficiency Study shall be prepared by a qualified independent professional or firm approved by Agency. Agency shall cause the professional or firm preparing such study to meet and confer with Participant regarding the scope and methodology of the study and any information that Participant may have -20- CAWINDOWWernpomy Internet Files�OLK30341CARE agnnnt-clean.doc 0 that Participant believes is or may be relevant to the study and Agency shall make available to Participant a copy of the Business Hours Parking Insufficiency Study upon its completion. If the Agency reasonably determines based upon the results of the Business Hours Parking Sufficiency Study that the Business Hours use and occupancy of all public parking located within 350 feet of the Site is regularly less than eighty five percent (85%) then no further action of the Agency shall be required. If such use and occupancy number is equal to or greater than eighty five percent (85%) during Business Hours then the Agency shall do all of the following: A. Meet and confer in good faith with Participant for the purpose of devising solutions to any parking insufficiency that may exist at the time of the Study or, based on the Study, in the near future; and B. Propose reasonable solutions to the parking insufficiency, and use the reasonable best efforts of the Agency to obtain any required governmental approvals for the implementation of such proposals. Such solutions may include, for example, the amendment of the City required parking management plan for the Strand Public Parking Garage and/or other public parking facilities, the designation of spaces therein to be short-term spaces, the designation of spaces in certain public parking facilities to be for employee parking, the use of attendant parking, and the like. After consultation with Participant, such solutions shall be presented to the appropriate approval authority of the City and any other governmental agency having jurisdiction thereof for consideration in the form of proposed amendments to the parking management plan, and, if necessary or appropriate, possible amendments to the DPMP at the earliest feasible date. The Agency shall include appropriate provisions in all operating agreements for the Strand Public Parking Structure in order to effectuate the provisions of this Fourth Amendment. -21- CAWINDOWS\Temporary Internet Files`.OLK3034'.CARE agmnt-clean.doc 5. Limitation On Amendment. This Fourth Amendment sets forth in full Participant's right as to the Agency for any additional parking pursuant to the Abdelmuti OPA, Conditions 17 and 18 of CUP # 91-35 and the DPMP. Except as expressly provided otherwise in this Fourth Amendment, the Abdelmuti OPA remains in full force and effect, enforceable in accordance with its terms. Date: �� ZZ03 ATTEST: Agency Secretary REVIEWED AND APPROVED AS TO FORM: Agency General Counsel REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH -22- C 1MINDOWSiTemporary Internet ri1es!.0L0034\CARE agrmnt-clean.doc 0 APPROVED AS TO FORM: KANE, BALLMER & BERKMAN Agency Special Counsel Date: APPROVED AS TO FORM: RUTAN & TUCKER, LLP By: Jeffrey M. Oderman, Esq. Attorney for Abdelmuti Development Company C::WI\DOWS,,TEMPiCARE agi.doc ABDELMUTI DEVELOPMENT COMPANY A California General Partner LO-Z -22- General Partner APPROVED AS TO FORM: KANE, BALLMER & 13ERK-MAN Agency Special Counsel Date: (H V ABDELMUTT-DEVAI A Califgrdia Gener 7k M, General Partner APPROVED AS TO FORM: RUTAN & TUCKER, LLP By: &jA6n=j v e frey A Oderman, Esq. Attorney for Abdelmuti Development Company -23- C:MND0WS\Temporary Intemet Files%-OLK3034\CARE agrmnt-clean.doc P