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HomeMy WebLinkAboutCIM/Huntington, LLC, Cypress Equities and DiamondRock Hospitality - 2014-11-17TERMINATION AGREEMENT THIS TERMINATION AGREEMENT (this "Agreement") is entered into as of beczvK6� I s 2014, by and among Dolores L Cracchiolo and Salvator W. Cracchiolo, as trustees for the Declaration of Trust dated June 12, 1979, and Salvator W Cracchiolo and Barbara F. Cracchiolo, as trustees of the Cracchiolo Family Trust dated March 28, 2003 (collectively with their successors and assigns, "Landlord"), CIM/Huntington, LLC, a California limited liability company ("CIM"), and the Successor Agency to the Redevelopment Agency of the City of the City of Huntington Beach ("Successor Agency'). RECITALS A Landlord, as landlord, and CIM and the Redevelopment Agency of the City of Huntington Beach ("Former Agency"), as tenant, entered into that certain lease (as subsequently amended and/or restated, the "Original Ground Lease") dated as of March 8, 2000, with respect to certain premises (the "Premises") consisting of Landlord's undivided 4.505% tenancy -in -common interest in certain real property described In Exhibit A to the Original Ground Lease and the Landlord's undivided 4 505% interest in any and all buildings, structures, or other improvements either then or thereafter located on such real property CIM and the Successor Agency are sometimes hereinafter referred to collectively as "Tenant" B. In connection with the Original Ground Lease, a Memorandum of Lease was recorded in the Orange County Recorder's Office on June 21, 2001 as Instrument No. 20010411099 of Official Records (the "Memorandum"), which incorporated by reference the Original Ground Lease. The Memorandum was replaced in its entirety by that certain Amended and Restated Memorandum of Lease Ihat was recorded on September 5, 2005 as Instrument No 2005-707181 of Official Records (the "First Restated Memorandum'), and the First Restated Memorandum was replaced in its entirely by that certain Second Amended and Restated Memorandum of Lease that was recorded on September 28, 2009 as Instrument No. 2009 511364. C. Tenant subleased the Premises to CIM pursuant to that certain Amended and Restated Subground Lease and Option to Purchase Fee dated as of June, 2005 (as amended, the "Subleas "). D. The Successor Agency succeeded to the interest of the Former Agency under the Original Ground Lease and the Sublease. E Section 35.25 of the Original Ground Lease permits Tenant to subdivide the Property into one or more three-dimensional parcels ("Air Rights Parcels") and contemplates that Landlord and Tenant will replace the Original Ground Lease with new separate ground leases for each of the Air Rights Parcels. F. CIM is recording two condominium plans that subdivide the Property into the following Air Rights Parcels. (a) in one condominium plan, a boutique hotel consisting of approximately 144,015 square feet of space (the "Hotel Parcel'); and (b) in a second condominium plan, a condominium unit that includes approximately 41,159 square feet of office improvements (the "Office Parcel") and a condominium unit that includes approximately 74,366 square feet of retail improvements (the "Retail Parcel"). G. Landlord and CIM are simultaneously herewith entering into (a) that certain First Restated Hotel Parcel Ground Lease with respect to the Landlord's interest in the Hotel Parcel (the "Hotel Parcel Lease"), (b) that certain First Restated Retail Parcel Ground Lease with respect to the Landlord's interest in the Retail Parcel (the ';Retail Parcel Lease"), and (c) that certain First Restated Office Parcel Ground Lease with respect to the Landlord's interest In the Lease Tenninatiun Agreement % 13 Office Parcel (the "Office Parcel Lease", and together with the Hotel Parcel Lease and the Retail Parcel Lease, collectively, the "Parcel Leases"). H. The parties have agreed to enter into this Agreement pursuant to which (a) the Original Ground Lease shall be replaced by the Parcel Leases and the Sublease shall terminate effective as of the commencement date of the Parcel Leases (the "Effective Date°). (b) the Successor Agency, the Former Agency, and the City of Huntington Beach shall be released from liability with respect to the Original Ground Lease and the Sublease; and (c) CIM shall be released from liability with respect to the Sublease. each on the terms and conditions set forth herein. 69BEEM991 NOW, THEREFORE, in consideration of the foregoing recitals and conditions and the covenants hereinafter contained, and for other consideration hereinafter set forth the receipt and sufficiency of which are hereby acknowledged, Landlord, CIM and Successor Agency hereby agree as follows: 1. Substitution of Parcel Leasesor Od Inal Ground Lease. Landlord, CIM and the Successor Agency hereby agree that the Original Ground Lease shall be replaced by the Parcel Leases and be of no further force or effect as of the Effective Date. From and after the Effective Date, Tenant shall not have any further rights or obligations under the Original Ground Lease, except those obligations which survive the termination or expiration of the Original Ground Lease, which obligations of Tenant are hereby assumed by CIM. For avoidance of doubt, the parties confirm that from and after the execution and delivery of the Parcel Leases, the Original Ground Lease shall be of no further force or effect (except those obligations which survive the termination or expiration of the Original Ground Lease, which obligations of Tenant are hereby assumed by CIM), and the obligations of each of the tenants under the respective Parcel Lease shall be limited to the obligations of each such tenant under the respective Parcel Lease. Concurrently with the execution of this Agreement, each of the parties shall execute, acknowledge and deliver to CIM the Termination of Memorandum of Ground Leese in the form of EXhibil. attached hereto. 2. Termination of Sublease. CIM and the Successor Agency hereby agree that the Sublease shall terminate and be of no further force or effect as of the Effective Date (except for those obligations which survive termination or expiration of the Sublease, which obligations are hereby assumed by CIM), it being the intent of the parties that the term of the Sublease shall expire on the Effective Date in the same manner and with the same effect as if such date were the date set forth in the Sublease for the expiration of the term thereof (except for those obligations which survive termination or expiration of the Sublease, which obligations are hereby assumed by CIM). Concurrently with the execution of this Agreement, each of Tenant and CIM shall execute, acknowledge and deliver to CIM the Termination of Memorandum of Subground Lease in the form of gXhIbIt B attached hereto. 3. elease by Landlord. Landlord, on behalf of Itself and on behalf of any other person or entity claiming through or under Landlord, does hereby release and forever discharge the Former Agency, the Successor Agency, the City of Huntington Beach. and their respective members, managers, directors, officers, employees, partners, shareholders, policyholders, agents (and any such agent's officers and employees), assigns, attorneys, successors, representatives, and all others who may have acted or been claimed to have acted in concert with the Former Agency, the Successor Agency or the City of Huntington Beach (all such parties referred to herein collectively as the'City Released Parties"), who are liable or who might be claimed to be liable from any and all claims, charges, complaints, liabilities, obligations, promises, agreements, controversies, damages, demands, actions, causes of action or suits of any kind or nature whatsoever, whether they sound in law, equity, tort or contract which Landlord may have had, now has, or may have against the City Released Parties, or any of them, arising out of any act or omission of any of the City Released Parties in connection with the Original Ground Lease or in any way connected with any and all transactions, occurrences, or other matters relating to the Original Ground Lease. Landlord acknowledges that subsequent to the execution of this Agreement. it may determine that It has incurred a loss, damage or injury related to the releases herein given, but which were unknown or unanticipated at the time of execution of this Agreement, or that it may have had claim(s) or cause(s) of action which were unknown or unanticipated at the time of the execution of this Agreement, and Landlord hereby expressly agrees that the releases herein given shall apply to all such unknown and unanticipated losses, damages, injuries, claims and causes of action. In connection herewith, Landlord expressly waives the benefits of Section 1542 of the California Civil Code, which reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS/HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM/HER MUST HAVE MATERIALLY AFFECTED HIS/HER SETTLEMENT WITH THE DEBTOR. Landlord's Initlals L -4 Landlord acknowledges that it has received the advice of legal counsel and/or has been advised to seek legal counsel with respect to the aforementioned waiver and understands the terms thereof. 4. Release by CIM. CIM, on behalf of itself and on behalf of any other person or entity claiming through or under CIM, does hereby release and forever discharge the Former Agency, the Successor Agency, the City of Huntington Beach, Tenant, and their respective members, managers, directors, officers, employees, partners, shareholders, policyholders, agents (and any such agent's officers and employees), assigns, attorneys, successors, representatives, and all others who may have acted or been claimed to have acted in concert with Former Agency, the Successor Agency, the City of Huntington Beach, or Tenant (all such parties referred to herein collectively as the "Tenant Released art ),who are liable orwho might be claimed to be liable from any and all claims, charges, complaints, liabilities, obligations, promises, agreements, controversies, damages, demands, actions, causes of action or suits of any kind or nature whatsoever, whether they sound In law, equity, tort or contract which CIM may have had, now has. or may have against the Tenant Released Parties, or any of them, arising out of any act or omission of any of the Tenant Released Parties in connection with the Sublease or in any way connected with any and all transactions, occurrences, or other matters relating to the Sublease (but not any claims under the Disposition and Development Agreement dated as of June 17,1999, as previously amended, or any other documents executed in connection therewith other than the Sublease). CIM acknowledges that subsequent to the execution of this Agreement, It may determine that it has incurred a loss, damage or injury related to the releases herein given. but which were unknown or unanticipated at the time of execution of this Agreement, or that it may have had claim(s) or cause(s) of action which were unknown or unanticipated at the time of the execution of this Agreement. and CIM hereby expressly agrees that the releases herein given shall apply to all such unknown and unanticipated losses, damages, injuries, claims and causes of action. In connection herewith. CIM expressly waives the benefits of Section 1542 of the California Civil Code, which reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS/HER FAVOR AT THE TIME OF N EXECUTING THE RELEASE H IF KNOWN BY HIM/HER MUST HAVE MATERIALLY AFFECTED HIS/HER SETT EM T WITH THE DEBTOR. CIM's Initials: CIM acknowledges that it has received the advice of legal counsel and/or has been advised to seek legal counsel with respect to the aforementioned waiver and understands the terms thereof 5. Release by Tenant. Tenant, on behalf of itself but not on behalf of the Former Agency, the Successor Agency, or the City of Huntington Beach, does hereby release and forever discharge the Former Agency, the Successor Agency, the City of Huntington Beach, CIM and their respective members, managers, directors, officers, employees, partners, shareholders, policyholders, agents (and any such agent's officers and employees), assigns, attorneys, successors, representatives, and all others who may have acted or been claimed to have acted in concert with the Former Agency, the Successor Agency, the City of Huntington Beach, or CIM (all such parties referred to herein collectively as the "A ene /CIM Released Partles`), who are liable or who might be claimed to be liable from any and all claims, charges, complaints, liabilities, obligations, promises, agreements, controversies, damages, demands, actions, causes of action or suits of any kind or nature whatsoever, whether they sound in law, equity, tort or contract which Tenant may have had, now has, or may have against the Agency/CIM Released Parties, or any of them, arising out of any act or omission of the Agency/CIM Released Parties in connection with the Sublease or In any way connected with any and all transactions, occurrences, or other matters relating to the Sublease. Tenant acknowledges that subsequent to the execution of this Agreement, it may determine that it has Incurred a loss, damage or injury related to the releases herein given, but which were unknown or unanticipated at the time of execution of this Agreement, or that it may have had claim(s) or cause(s) of action which were unknown or unanticipated at the time of the execution of this Agreement, and Tenant hereby expressly agrees that the releases herein given shalt apply to all such unknown and unanticipated losses, damages, injuries, claims and causes of action. In connection herewith, Tenant expressly waives the benefits of Section 1542 of the California Civil Code, which reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR, Tenant's Initials: CIM The Successor Agency Tenant acknowledge3�ikia i s received the advice of legal couns and/or has been advised to seek legal counsel wit spect to the aforementioned waiver and understands the terms thereof 6. Representations of Tenant. Each of CIM and the Successor Agency represents and warrants to Landlord that (a) such party has not heretofore assigned all or any pogion of its interest in the Original Ground Lease; (b) no other person, firm or entity has any right, title or interest In the Original Ground Lease; (c) such party has the full right, legal power and actual authority to enter into this Agreement and to terminate the Original Ground Lease without the consent of any person, firm or entity other than the other party comprising Tenant, except that Successor Agency represents and warrants that Successor Agency must obtain the approval of the Oversight Board of Successor Agency to enter into this Agreement and to terminate the Original Ground Lease and such Oversight Board approval is subject to review and approval by the State Department of Finance, and (d) such party has the full right, legal power and actual authority to bind such party to the terms and conditions hereof, except that Successor Agency represents and warrants that Successor Agency must obtain the approval of the Oversight Board of Successor Agency to bind the Successor Agency to the terms and conditions hereof and such Oversight Board approval is subject to review and approval by the Stale Department of Finance. Notwithstanding the termination of the Original Ground Lease and the release of liability provided for herein, the representations and warranties set forth in this Paragraph 6 shall survive the Effective Date and the party making each such representation or warranty shall be liable to Landlord for any inaccuracy or any breach thereof. 7. & omeys' Fees. Should any dispute arise between the parties hereto or their legal representatives, successors and assigns concerning any provision of this Agreement or the rights and duties of any person in relation thereto, the party prevailing in such dispute shall be entitled, in addition to such other relief that may be granted, to recover reasonable attorneys' fees and costs in connection with such dispute. 8. Governing Law. This Agreement shall be governed and construed under the laws of the State of California. 9. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but such counterparts, when taken together. shall constitute one agreement. 10. BindingEffect. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective legal representatives, successors and assigns. 11. Time of the Essence. Time is of the essence of this Agreement and the provisions contained herein. 12. Further Assurances. The parties hereby agree to execute such further documents or instruments as may be necessary or appropriate to carry out the intention of this Agreement. 13. Voluntary Agreement. The parties have read this Agreement and the releases as contained herein, and on the advice of counsel they have freely and voluntarily entered into this Agreement. 14. Integration Clause/Modification. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements, whether oral or written. This Agreement may not be altered, amended, modified or otherwise changed in any respect whatsoever, except by a writing duty executed by all of the parties affected by such modification or by their authorized representatives. Any modification or waiver of any one provision shall not constitute waiver or modification of any other provision not expressly waived or modified. IN WITNESS WHEREOF, Landlord, CIM and the Successor Agency have executed this Agreement as of the day and year first above written. CIM: limited liability company --Signatures Continued Next Page— SUCCESSOR AGENCY: Successo Agency to the Redevelopment Agency of The ntington Beach By. ATTGQT. TO FORM: APPROVED AS TO FORM' KAN ALLMER & B RKMAN By: Id W-ex, -Itfie- LANDLORD: Salvator W. Cracchiolo, trustee for the Declaration of Trust dated June 12, 1979 ,f 4, C. Dolores L. Cracchiolo, trustee for the De rati of s ated Ju e 1 , 1979 ,r t B rbara F. Cracdhiolo, trustee of the Cracchiolo Family Tr t date ch 2003 Salvator W Crac solo, of the Cracchiolo Family Trust dated March 28, 2003 Old Republic Title Company Major Accounts - Commercial Division RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO. Fragner Seifert Pace & Winograd, LLP 601 South Figueroa Street, Suite 2320 Los Angeles, CA 90017 Attn. Matthew C Fragner Recorded in Official Records, Orange County Hugh Nguyen, Cleric -Recorder lIIIlllllllll llllil l l!!II!!lIIIIIIIIIIIIIIIIIIIIIIl1l1I IIE'lIIl►1 If 4200 w$ R 0 0 0 7 2 7 4 0 0 3$ 2015000057364 3:09 pm 02105115 37 406 703 F13 12 0.00 0.00 0.00 0.00 33.00 0.00 0.00 0.00 (Space Above For Recorder's Use) TERMINATION OF MEMORANDUM OF GROUND LEASE This TERMINATION OF MEMORANDUM OF GROUND LEASE ('Termination") dated as of February 3, 2015 is entered into by and between Dolores L Cracchiolo and Salvator W Cracchiolo, as trustees for the Declaration of Trust dated June 12, 1979, and Salvator W Cracchiolo and Barbara F Cracchiolo, as trustees of the Cracchiolo Family Trust dated March 28 2003 (collectively with their successors and assigns, "Landlord"), CIM/Huntington, LLC, a California limited liability company ("CIM"), and the Successor Agency to the Redevelopment Agency of the City of Huntington Beach WHEREAS, Landlord as lessor and CIM and Redevelopment Agency of the City of Huntington Beach as lessee entered into an Amended and Restated Ground Lease dated as of ,tune 30, 2005 (the "Ground Lease"), WHEREAS, in connection with such Ground Lease, the parties executed and recorded a Second Amended and Restated Memorandum of Ground Lease (the "Memorandum") as Instrument No 2009 511364 on September 28, 2009 in the Official Records of Orange County, and WHEREAS, the parties wish to evidence the termination of the Memorandum NOW, THEREFORE, Landlord, CIM and the Successor Agency have caused this Termination to be executed and recorded in the Official Records of Orange County to provide notice that the Ground Lease has terminated and the Memorandum has no further force or effect r1�1 n r I-,-) 2 r `kn (' (40 Old republic Title Comain Major Accounts-':0mjnet•ci j ivtsion RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO Fragner Seifert Pace & Winograd, LLP 601 South Figueroa Street, Suite 2320 Los Angeles, CA 90017 Attu Matthew C Fragner (Space Above For Recorder's Use) TERMINATION OF MEMORANDUM OF GROUND LEASE This TERMINATION OF MEMORANDUM OF GROUND LEASE ("Termination") dated as of February 3, 2015 is entered into by and between Dolores L Cracchiolo and Salvator W Cracchiolo, as trustees for the Declaration of Trust dated June 12, 1979, and Salvator W Cracchiolo and Barbara F Cracchiolo, as trustees of the Cracchiolo Family Trust dated March 28, 2003 (collectively with their successors and assigns, "Landlord"), CIM/Huntington, LLC, a California limited liability company (°GIM"), and the Successor Agency to the Redevelopment Agency of the City of Huntington Beach WHEREAS, Landlord as lessor and CIM and Redevelopment Agency of the City of Huntington Beach as lessee entered into an Amended and Restated Ground Lease dated as of June 30, 2005 (the "Ground Lease"), WHEREAS, in connection with such Ground Lease, the parties executed and recorded a Second Amended and Restated Memorandum of Ground Lease (the "Memorandum") as Instrument No 2009 511364 on September 28, 2009 in the Official Records of Orange County, and WHEREAS, the parties wish to evidence the termination of the Memorandum NOW, THEREFORE, Landlord, CIM and the Successor Agency have caused this Termination to be executed and recorded in the Official Records of Orange County to provide notice that the Ground Lease has terminated and the Memorandum has no further force or effect CIM CIM/Huntington, LLC, a California limited liability company By Name Title SUCCESSOR AGENCY Successor Agency to the Redevelopment Agency City of Huntington Beach By -eC/ ATTEST L?ncy CleWEDkPPRQ.VED AS TO FORM .�,ency General Counsel APPROVED AS TO FORM KANALLMER & BERKMAN By A��,,--� LANDLORD Salvator W Cracchiolo, trustee for the Declaration of Trust dated June 12, 1979 Dolores L Cracchiolo, trustee for the Declaration of Trust dated June 12, 1979 Barbara F Cracchiolo, trustee of the Cracchiolo Family Trust dated March 28, 2003 Salvator W Cracchiolo, trustee of the Cracchiolo. Family Trust dated March 28, 2003 � "I"GIMlHuntingtprf�LLG,Galtfomja limited liability company Byi NamAvishmshemesh Title President and Treasurer SUCCESSOR AGENCY Successor Agency to the Redevelopment Agency of The City of Huntington Beach By ATTEST Agency Clerk REVIEWED AND APPROVED AS TO FORM: Agency General Counsel APPROVED AS TO FORM KANE, BALLMER & BERKMAN 0 il f (: "& LANDLORD % Salvator W Cracchiolo, trustee for the Declaration of Trust dated June 12, 1979 Dolores L Cracchiolo, trustee for the Dec an n of Tr datd June 12, 1 rbara F racchiolo, trustee of the Cracchiolo Family Tru=tedh 28,2003 ! IN vator W. Cracchiolo, trustee of the Cracchiolo Family Trust dated March 28, 2003 Termination of Memorandum of Ground lease Signature Page ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the Individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss. COUNTY OF C+;�f3hkAc } rfJ4 jlvrSL%V On before me, a g , (here insert name and title of the officer), personally appeared najor, � Ce-a c-u i-0 (insert name(s) of signer(s)) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capaczty(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the Instrument. I certifv under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signaturef _ � (Seal) MEREDITH CRACCHIOLO Comm.#1927916 Notary Public California Orange County Comm Expires Slot?, 201S ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss. COUNTY OF On L,'t'�-` before me, (here insert name and title of the officer), personally appeared (insert name(s) ofsigner(s)) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal Signature T (Seal) MEREDITHCRACCHIOLO Comm #1927916 Notary Public -California n Change County Comm Expires Mar 7, 2015 ACKNOWLEDGEMENT A notary public or other officer completing this certificate verities only the identity of the individual who signed the document to which this certificate 1s attached, and not the truthfulness, accuracy, or validity of that document STATE OF CALIFORNIA ) ) ss COUNTY OF 0 ,w, Z ) .afutj@ On }�Nv � 4 r q, zat<— before me, puy.-uttu Cyjx<wlk o-►xs, here insert name and title of the officer). personally appeared ':>e�..VU7x! - jyjCC'0'1 .o (insert name(s) of signer(s)) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authonzed capacrty(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITLESS my hand and official seal Signature , �� �=a (SeaI) MEREDITH CRACCHIol.O Comm.#1927916 Notary Public -California n Orange County Comm Expues Mar 7, 291 S ACKNOWLEDGEMENT A notary public or other officer completing this certificate venfies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document STATE OF CALIFORNIA ) ) ss. COUNTY OF ot:Zm�c== ) On (.,Nvrw -t l ti 4c�E�`-- before nie, g ����-cxas c t ! st. (� , (here insert name and title of the officer), personally appeared (insert names) of signer(s)) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal. r n , 14 Signature (Seal) MEREDITH 5ACCH€OLO Comm 91927916 *#� Notary Public -California n Orange County Comm Expires Mar 7, 2015 ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document STATE OF CALIFORNIA ) ) ss COUNTY OF Los Angeles ) On February 3, 2015 , 2015 before me, Ellen Jo Rose, Notary Public, personally appeared Avraham Shemesh (insert name(s) of slgner(s)) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/shelthey executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct ELLEN JO ROSE Commission # 2030564 a -� Notary Public - California z z ''� Las Angeles County r WITNESS my hand and official seal M corm E ires Jun 23, 201l Signature Ellen Jo Rose, Notary Public ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document STATE OF CALIFORNIA ss COUNTY OF,,,, JC On /rc-e c',}'"before me. Z- 2� (here insert name and title of the officer), personally appeared #�s�� insert nam s) of signeiro who roved to me on the basis of satisfactory evidence to be the persoj hose nain6 an subscribed to the within instrument and acknowledged to me that e/thev' executed the same in his fh thy authorized capacit ies�. and that by hts:, i eir signatur�s)>on the instrument the persoi6), or the entity upon behalf of which the perso � acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct Exhibit A Legal Description Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as shown on map recorded in Book 870, Pages 47 to 50 inclusive of Miscellaneous Maps, in the Office of the County Recorder of said County EXCEPT THEREFROM all that portion of said land lying below a depth of 500 feet measured vertically from the present surface of the ground. ALSO EXCEPT THEREFROM: Parcels A and B as hereinafter described Parcel A: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Los Angeles, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 41° 37' 10" East 124.55 feet; thence North 480 21'52" West, along said parallel line, 4.70 feet to the point of beginning; thence, along the following 10 courses and distances: 1. North 480 21' 52" West, along said parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet; 3. South 480 21' 52" East, 77.00 feet; 4. South 640 55' 17" East, 19.30 feet; 5. South 480 21' 52" East, 30.00 fleet; 6. North 410 38' 08" East, 182.00 feet; 7. South 48" 21' 52" East, 275.00 feet; 8. South 410 38' 08" West, 211.58 feet; 9. North 48" 21' 52" West, 63.67 feet; 10. South 411 38' 08" West, 124.42 feet to the point of beginning. EXCEPT from said Parcel A, that portion thereof lying above elevation 25.66 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion thereof lying below elevation 9.00 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion indicated as "Components" as defined in Article 1.18 of the declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. Parcel B: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 410 37' 10" East 124.55 feet; thence North 480 21'52' West, along said parallel line, 4.70 feet; thence along the following 14 courses and distances: 1. North 480 21' 52 feet, along said Parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet to the point of beginning; 3. North 480 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1; 4. North 410 37' 11" East, along said Northwesterly line, 40.75 feet; 5. South 480 21' 52" East, 15.93 feet; 6. forth 410 38' 08" East, 2.00 feet; 7. South 480 21' 52" East, 43.83 feet; 8. South 590 00' 03" East, 52.82 feet; 9. South 770 09' 19" East, 21.11 feet; 10. South 480 21' 25" East, 11.25 feet; 11. South 410 38' 08" West, 57.17 feet; 12. North 480 21'52" West, 30.00 feet; 13. North 640 55' 17" West, 19.30 feet; 14. North 480 21'52" West, 77.00 feet to the point of beginning. EXCEPT from said Parcel B, that portion thereof lying above and between an elevation of 38.79 feet on the Northwesterly line of said Parcel 2 and an elevation of 26.33 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion thereof lying below and between an elevation of 30.46 feet on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion indicated as "Components" as defined in Article 1.18 of the Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 instrument No. 2009-47214, of Official Records. Description of Non Condo Documents Old Republic Title Company Major Accounts - Commercial Division RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO Fragner Seifert Pace & Winograd, LLP 601 South Figueroa Street, Suite 2320 Los Angeles, CA 90017 Attn: Matthew C. Fragner Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 11111111111111111111 1111i 1111111111111[ llll1 11111 Jill 11:11 Jill JI'l 111130. *$ R 0 0 0 7 2 7 4 0 0 4$ 2015000057365 3.09 pm 02105/15 37 406 703 F13 8 0.00 0.00 0.00 0.00 21.00 0.00 0,00 0.00 (Space Above For Recorder's Use) TERMINATION OF MEMORANDUM OF SUBGROVIVO E�EASE This TERMINATION OF MEMORANDUM OF SUBGROUND LEASE ("Termination") dated as of February 3, 2015 is entered into by and between CIM/Huntington, LLC, a California limited liability company ("CIM"), and the Successor Agency to the Redevelopment Agency of the City of Huntington Beach (the "Successor Agency"). WHEREAS, CIM and the Redevelopment Agency of the City of Huntington Beach as Sublessor and CIM as Sublessee entered into an Amended and Restated Subground Lease dated as June, 2005 (the "Subground Lease"), WHEREAS, in connection with such Subground Lease, the parties executed and recorded a Memorandum of Amended and Restated Subground Lease (the "Memorandum") as Instrument No. 2009 511365 on September 28. 2009 in the Official Records of Orange County. and WHEREAS, the parties wish to evidence the termination of the Memorandum. NOW, THEREFORE, CIM and the Successor Agency have caused this Termination to be executed and recorded in the Official Records of Orange County to provide notice that the Subground Lease has terminated and the Memorandum has no further force or effect Termination of Memorandum of Sub -Ground Lease final -a doc Old Republh,-- Title Compan- RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO. Fragner Seifert Face & Winograd, LLP 601 South Figueroa Street, Suite 2320 Los Angeles, CA 90017 Attn Matthew C Fragner (Space Above For Recorder's Use) TERMINATION OF MEMORANDUM OF SUBGROUND LEASE This TERMINATION OF MEMORANDUM OF SUBGROUND LEASE ("Termination") dated as of February 3, 2015 is entered into by and between CIM/Huntington, LLC, a California limited liability company ("CIM"), and the Successor Agency to the Redevelopment Agency of the City of Huntington Beach (the "Successor Agency") WHEREAS, CIM and the Redevelopment Agency of the City of Huntington Beach as Sublessor and CIM as Sublessee entered into an Amended and Restated Subground Lease dated as June, 2005 (the "Subground Lease"); WHEREAS, in connection with such Subground Lease, the parties executed and recorded a Memorandum of Amended and Restated Subground Lease (the "Memorandum") as Instrument No 2009 511365 on September 28, 2009 in the Official Records of Orange County; and WHEREAS, the parties wish to evidence the termination of the Memorandum NOW, THEREFORE, CIM and the Successor Agency have caused this Termination to be executed and recorded in the Official Records of Orange County to provide notice that the Subground Lease has terminated and the Memorandum has no further force or effect Termination of Memorandum of Sub-Giound Lease final -a doc NZ CIM/Huntington, LLC, a California limited liability company BY c1qu Name Title. SUCCESSOR AGENCY: Successo Agency to the Redevelopment Agency of TheJ�t'!'ngton Beach By:JA' ATTEST 3Ag cy Cle R IEIAPPR ,. ED AS TO FORM- A ency Genera Co/unsel l APPROVED AS TO FORM• KANE, BALLMER & BERKMAN M N CIM CIMfHuntington, LLC, a California limited liability company By'/" Name Eric Ruttgl*ld Title Vice President & Secretary SUCCESSOR AGENCY Successor Agency to the Redevelopment Agency of The City of Huntington Beach a ATTEST. Agency Clerk REVIEWED AND APPROVED AS TO FORM - Agency General Counsel APPROVED AS TO FORM- KANE, BALLMER & BERKMAN 0 i') ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF Los Angeles ) On February 3rd, 2015, before me, Ellen Jo Rose, Notary Public, personally appeared Eric Rubenfeld, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Ellen Jo Ro'se; Notary Public ELLEN J0 ROSE Commission # 2030564 c Notary Public - California z �-`• " x Los Angeles County r My Comm ExPires Jua 23, 2017 Exhibit A Legal Description Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as shown on map recorded in Book 870, Pages 47 to 50 inclusive of Miscellaneous Maps, in the Office of the County Recorder of said County EXCEPT THEREFROM all that portion of said land lying below a depth of 500 feet measured vertically from the present surface of the ground. ALSO EXCEPT THEREFROM: Parcels A and B as hereinafter described Parcel A: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Los Angeles, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 41° 37' 10" East 124.55 feet; thence North 480 21' 52" West, along said parallel line, 4.70 feet to the point of beginning; thence, along the following 10 courses and distances: 1. North 480 21' 52" West, along said parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet; 3. South 480 21' 52" East, 77.00 feet; 4. South 640 55' 17" East, 19.30 feet; 5. South 480 21' 52"' East, 30.00 feet; 6. North 410 38' 08" East, 182.00 feet; 7. South 48° 21' 52" East, 275.00 feet; 8. South 410 38' 08" West, 211.58 feet, 9. North 480 21'52" West, 63.67 feet; 10. South 410 38' 08" West, 124.42 feet to the point of beginning. EXCEPT from said Parcel A, that portion thereof lying above elevation 25.66 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion thereof lying below elevation 9.00 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion indicated as "Components" as defined in Article 1.18 of the declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. Parcel B: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 410 37' 10" East 124.55 feet; thence North 480 21' S2' West, along said parallel line, 4.70 feet; thence along the following 14 courses and distances: 1. North 480 21'52 feet, along said Parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet to the point of beginning; 3. North 480 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1; 4. North 410 37' 11" East, along said Northwesterly line, 40.75 feet; 5. South 480 21' 52" East, 15.93 feet; 6. North 410 38' 08" East, 2.00 feet; 7. South 480 21' 52" East, 43.83 feet; 8. South 590 00' 03" East, 52.82 feet, 9. South 770 09' 19" East, 2 1. 11 feet; 10. South 480 21' 25" East, 11.25 feet; 11. South 410 38' 08" West, 57.17 feet; 12. North 480 21' 52" West, 30.00 feet; 13. North 64° 55' 17" West, 19.30 feet; 14. North 4810 21' 52" West, 77.00 feet to the point of beginning. EXCEPT from said Parcel B, that portion thereof lying above and between an elevation of 38.79 feet on the Northwesterly line of said Parcel 2 and an elevation of 26.33 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion thereof lying below and between an elevation of 30.46 feet on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion indicated as "Components" as defined in Article 1.18 of the Declaration of Covenants, Conditions and Restrictions and (grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. Description of Non Condo Documents A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On February 4, 2015 before me, P. L. Esparza, Notary Public, personally appeared Joan L. Flynn and Fred A. Wilson who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. P L ESPAR WITNESS my hand and official seal. Commission # 2032750 a Notary Public - California i x Orange County % Comm. E fires Aug4.2017 (Seal) (Notary Sign e) Recorded in Official Records, Orange County f Hugh Nguyen, Clerk -Recorder Old Republic Title Company 11111111!111I:I!111111!1111l1111111111!l11111'11111111111111111!111111 60-00 Major Accounts - Commercial Division $ R o 0 0 7 z 7 4 n D 1$ 2015=57362 3:09 pm 02 O5115 37 406 D02 R27 F14 15 0.00 0.00 0.00 0.00 42 00 0.00 0.00 0.00 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Fragner Seifert Pace & Winograd, LLP 601 South Figueroa Street, Suite 2320 Los Angeles, CA 90017 Attn: Matthew C. Fragner AMENDMENT OF DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS AND GRANT OF RECIPROCAL EASEMENTS (CIM-Huntington Beach) .s�a-(� a z (90 6 W old Republic Title ompany Major Accounts - commercial Division RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Fragner Seifert Pace & Winograd, LLP 601 South Figueroa Street, Suite 2320 Los Angeles, CA 90017 Attn: Matthew C. Fragner AMENDMENT OF DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS AND GRANT OF RECIPROCAL EASEMENTS (CIM-Huntington Beach) ,,%e 1-<,e-49 0 c� 0 0 6 ( � AMENDMENT OF DECLARATION Of COVENANTS, CONDITIONS & RESTRICTIONS AND RECIPROCAL EASEMENT AGREEMENT (CIN-1-Huntington Beaelt) This Amendment of Declaration of'Covenants, Conditions & Restrictions and Reciprocal Easement Agreement ("Amendment") is made and entered into as of the recordation hereof'(the "Effective Date"), by the City of Huntington Beach, a municipal corporation ("C�"), the Successor Agency to the Redevelopment Agency oi'the City of Huntington Beach (the "Successor Agency"), Dolores L. Cracchiolo and Salvator W. Cracchiolo, as trustees for the Declaration of Trust dated June 12, 1979, and Salvator W. Cracchiolo and Barbara F. Cracchiolo, as trustees of the Cracchiolo Family Trust dated March 28, 2003 (collectively, "Cracchiolo") and CIM/Huntington LLC, a California limited liability company ("Developer") (collectively, the "Parties"), vvith respect to real property located in Orange County, California described on Exhibit A attached hereto, comprised of tile Parking Parcel, the Retail Parcel and the Hotel Parcel (as defined in the Original Declaration as defined below). RECITALS A. The City, Cracchiolo, Developer and the Redevelopment Agency of the City of Huntington Beach (the "Agency"), the Successor Agency's predecessor in interest, entered into that certain Declaration of Covenants, Conditions & Restrictions and Reciprocal Easement Agreement recorded as Instrument No. 2009000047214 on February 3, 2009 in the Official Records of0range County, California (the "Original Declaration"). Tile Parties now desire to amend the Original Declaration in the manner set forth below, Capitalized terms not otherwise defined herein shall have the same definitions as set forth in the Original Declaration. B. The Parties acknowledge that (i) Developer and other Owners are subject to other instruments conferring rights upon Successor Agency or the City and/or obligations oil Developer and/or the other Owners. including, without limitation the Fifth Street Public Access Easement, the Maintenance License Agreement, the Operating Agreement and the Agreement Containing Covenants Affecting Real Property, and the DDA, and pursuant to Section 12.2 of the Original Declaration, nothing contained herein shall serve to limit the Parties' obligations as contained in and for the terms of such agreement~, and (ii) nothing contained in this Declaration shall limit the City's pollee powers or shall allow Developer or any Owner to flail to comply with any applicable City code or ordinance. C. immediately after the recordation of this Amendment, Developer is recording two condominium plans relating to the Retail Parcel and the Hotel Parcel. CIM H8 CCRs Amendment I. Modifications to Amendments. The following definitions shall replace in their entirety the corresponding definitions contained in the Original Declaration. 1. l "Manager" means the person or entity responsible pursuant to the terms hereof for maintenance of the Common Areas and performance of all other obligations specifically allocated to the "Manager" hereunder. Manager may employ a person or entity to perform management functions In the Project, and in so doing may assign and delegate to such person or entity all or a portion of'ManageE's rights and obligations under this Declaration (and, subject to any limitations thereon set forth in Article If below, may include the reasonable costs of compensating any agents, contractors or professional managers engaged to perform such functions in the Common Area Expenses); provided however, that Manager shall remain responsible for the performance of such obligations by such person or entity. The Manager shall initially be Developer or any successor -in -interest to all (but not less than all) of Developers Interest in the Parcel I of the Retail Parcel ("Retail Parcel I"), provided, however, that Retail Parcel I Owner's rights and obligations as Manager shall be deemed assigned to tite Property Owners Association (or, with the consent of the City, a Condominium Association) upon formation thereof on the terms set forth in Article 13 below. Notwithstanding the foregoing, with respect to the City and the Agency only, Developer and Developer's successor -in -interest to Developer's Interest in Retail Parcel 1 shall remain obligated to perform any obligation of Manager hereunder to the extent not performed by the Property Owner's Association or designated Condominium Association (and the Parties to this Declaration tuttitorize such performance by Developer or Developer's successor -in -interest), provided that any such successive holder of Developer's Interest in Retail Parcel I shall be relieved olany liability for such performance upon cite transfer of such holder's interest in Retail Parcel I and any transferee of such holder's interest shall be deemed to have assumed such obligation from and alter the effective date of such transfer. 1.2 `Master Parcel ONNner'shall mean the: Retail Parcel 1 Owner. Notwithstanding the foregoing, there shall be no voting, consent or approval rights hereunder appurtenant to ownership of the Master Parcel nor shall any person or entity holding title to the Master Parcel by virtue thereof be deemed an "Owner" for purposes of exercising any voting or consent rights appurtenant to ownership of Parcel hereunder. 1.3 "Pareelization Amendment" shall mean this Amendment. 1.4 "Proportionate Share" metuts (i) with respect to the Class A Compton Area Expenses, the total Floor Area within all buildings within a Parcel (excluding the Meister Parcel), divided by the total floor Area within all buildings within the Project (excluding the Master Parcel), provided that with respect to Class A Common Area Expenses that relate to maintenance, repair or restoration costs. "Proportionate Share" shall be calculated so that the Proportionate Share of the Retail Parcel Owner shall be 5 1% and the Proportionate Share of the -2- CIM HB CCRs Amendment Hotel Parcel Owner shall be 49%, and (ii) with respect to the Class B Common Area Expenses, the Proportionate Share: ofthe Retail Parcel Owner shall be 5 1 % and the Proportionate Share of the Hotel Parcel Owner shall be 49%." 2. Modification of Section 16.26. Section 16.26 of the Original Declaration shall be deleted and the following substituted in its place: 16.26 Authority of Successor Agency_ Executive Director to Act for Successor Agency. Except as otherwise expressly provided to this Declaration, any consent, approval or other instrument described in this Declaration may be granted, given or executed by the Successor Agency Executive Director or designee on behalf of the Successor Agency and the Successor Agency Executive Director or designee shall be authorized to take any other action on behall'of the Successor Agency without the need for further authorization from the Successor Agency; provided, however that, notwithstanding the i'oregoing, the Successor Agency Executive Director or designee may, in his or her sole discretion, refer to the Successor Agency any item far which the Successor Agency Executive Director or designee has authority to act hereunder." 3. Agreement to Hold Hotel Units by One Owner. Developer hereby covenants, on behalf of itself and all future owners of the individual condominium units within the Hotel Parcel, that all such units shall be owned by the same o%vner(s) (provided that ownership by tenants -in -common of such units shall not violate the foregoing covenant). 4. Limitation of Amendment. Except as expressly set forth in this Amendment, the Original Declaration shall remain in full force and elTect. [signatures on !'ollowing, pages] -3- CIM H8 CCRs Amendment IN WITNESS WHEREOF, the: Parties hereto have ewcuted this Declaration as of the date first written above. SUCCESSOR AGENCY TO TI I REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corpor to and politic By: Executive Director ATTF•cT- APPROVE, AS TO FORM: By:_ V) A A—XA--- Z-kr�t Kane • I rdier & Berkniali Successor Agency Special Counsel INIT[ AN APP VED: By. Deputy Executive Director REVIEWWPPROVEI): By: Executive Director -a- CIM HS CCRs Amendment CITY OF HUNi`INGTON BEACH, a municipal corporation of the State of California r By.�' r or INITIATE[) AND APPROVED: =- Director of blic Works REVIEW • D APPROVED: By: City Adm4MshsW "Developer" CiM/Huntington, LLC, a Cal►llomia limited liabi Title: "Cracchiolo" Salvator W. Cracchiolo, trustee for the Declaration orTrust dated June 12, 1979 Dolores L. Cracchiolo, trustee for the Declaration ol'Trust dated June 12, 1979 Barbara F. Cracchiolo, trustee of the Cracchiolo Family Trust dated March 28, 2003 Salvator W. Cracchiolo, trustee of the Cracchiolo Family Trust dated March 28, 2003 -5- CIM HS CCRs Amendmeni " Do,cloper" CIM/Iluntington, LLC, a Calil'ornia limited habili yxnpany Title: "Craechiolo" ! a vator W. Craechiolo, trustee for the Declaration ofTrust dated June 12, 1979 Dolores L. Craechiolo, trustee for the Deal ation of T , d tC dune 1 , 1 79 l _1 Barbara F. Craechiolo, trustee of the Craechiolo Family Trust ar 8, 2003 Salvator W. Craechiolo, trustee of the Craechiolo Family Trust dated March 28, 2003 CIM Fib CCRs Amendment A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On February 4, 2015 before me, P. L. Esparza, Notary Public, personally appeared Joan L. Flynn and Fred A. Wilson who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. P L £SPARZA WITNESS my hand and official seal. Commission # 2032750 Notary Public - California Orange County Comm Ex res Aul 4, 2017 r {Seal} (Notary Sign'a / A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. ACKNOWLEDGMENT STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE ) On February 4, 2015, before me, P. L. Esparza, Notary Public, personally appeared .roan L. Flynn and Jill Hardy who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. P L ESPARZA WITNESS my hand and official seal. ja Commission # 2032750 Notary Public - Calttorms Orange County My Le Comm. Ex r88 Avg 4, 2011 (Seal) (Notary Signatu �� ��` ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF Los Angeles ) On February 4, 2015 before me, Ellen Jo Rose, Notary Public, personally appeared Shaul Kuba, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and Signature Notary Public Public ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document STATE OF CALIFORNIA ) ss. COUNTY OF G Una ) On ZZ, ?U(-t before me, �--&, 12mj 6/44ccotiv,(here insert name and title of the officer), personally appeared snit'm)r- ("CCU(insert name(s) of signer(s)) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal Signature- _ - �-�----(Seal) MEREDITH CRACCHIOLO Comm #1927916 Notary Public -California n Orange County Comm Expires Mar 7, 2015 Amendment of Declaration of Covenants, Conditions & Restrictions and Grant of Reciprocal Easements ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF c)V-A t xt-Iaf-�i FU,3gc- On NC) , ?,2, Zr.)t`( before me, uAETagu r"cC.Ug2 . (here insert name and title of the officer), personally appeared SpoyniZt- C tflA GtJtxq (insert name(s) of signer(s)) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature '-`r� _ (Seal) MEREDITH CRACCHIOLO Comm. #1927916 Notary Publfc -California n Orange County Comm Expires Mar 7, 2015 Amendment of Declaration of Covenants, Conditions & Restrictions and Grant of Reciprocal Easements ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss COUNTY OF On ? before me, iva^ 4 �`je- f��t� Cyww�Q (here insert name and title of the officer), personally appeared i?,Q, { C.►UccrA" (insert name(s) of signer(s)) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature P, MEREDIT CH RACCH101.0 141 Comm 01927916 Notary Pubitc -California n Orange County Comm Expires mar?, 2015 Amendment of Declaration of Covenants, Conditions & Restrictions and Grant of Reciprocal Easements ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document STATE OF CALIFORNIA ) ) ss. COUNTY OFtaC{c ) s.,a-cc°f i;Ljsu( . On i,by t1', 2ZE ^ifj 1( before me, tJr�- DTW (here insert name and title of the officer), personally appeared b�Ur,_ES CY A' -CV -(7 (insert name(s) of signer(s)) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ✓' '� Ji'`—- (Seal) MEREQIT I CRACCHlOLO Comm #1927916 Notary Publrc -California n Oranoe County Comm rxt) res Mar 7, 2015 Amendment of Declaration of Covenants, Conditions & Restrictions and Grant of Reciprocal Easements �EXM/ &7 '4 Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as shown on map recorded in Book 870, pages 47 to 50 inclusive of Miscellaneous Maps, in the Office of the County Recorder of said County EXCEPT THEREFROM all that portion of said land lying below a depth of 500 feet measured vertically from the present surface of the ground. Old Republic Title Company Major Account-, - Commercial Division OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attention, Successor Agency Executive Director Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 111 l l l l ll;l �l ll!ll II=1, IIllj Ill lull iIll 11111 1�:11 J!111 Jill Ill I Jill � 20. 00 r� $ R 4 is o 7 2 7 7 6 1 1$ 2015M5%58 4:00 pm 02106115 63 409 Al F13 38 0.00 0.00 0100 0.00111.00 0.00 0.00 0.00 SECOND AMENDMENT TO AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY This SECOND AMENDMENT TO AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY (this "Second Amendment") is made and entered into by and between the SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH (the "Successor Agency"), CIMfIIUNTINGTON HOTEL, L P , a California limited partnership ("Hotel LP") and CIMMUNTINGTON, LLC, a California limited liability company ("Owner") as of February 6, 2015 with reference to the following. A. Owner holds fee title to that certain real property described in the legal description attached hereto as Exhibit A (the "Owner Property"), and a leasehold interest in that certain real property described in the legal description attached hereto as Exhibit B ("Leased Premises"). Hotel LP owns that certain real property described in the legal description attached hereto as Exhibit C (the "Hotel Property"), and a leasehold interest in that certain real property described in the legal description attached Hereto as Exhibit D ("Hotel Leased Premises") The City owns the parking areas described on Exhibit E attached hereto (the "Parking Parcel") The Owner Property, the Leased Premises, the Hotel Property, the Hotel Leased Property and the Parking Parcel are collectively referred to herein as the "Property" A mixed -use hotel, retail and office project (the "Project") has been completed on the Property. B. The Property is subject to the Redevelopment Plan for the Main -Pier Redevelopment Project, which was approved and adopted by Ordinance No 2578 of the City Council of the City of Huntington Beach, amended by Ordinance No. 2634, and merged with certain other redevelopment projects in the City by the adoption of Ordinance No 3343 on December 16, 1996 to form the Huntington Beach Redevelopment Project (the "Merged Redevelopment Project"). C. The Property is subject to that certain Disposition and Development Agreement by and between the Successor Agency and Owner dated June 17, 1999, which Disposition and Development Agreement was supplemented by that certain [First] Implementation Agreement Second Amendment to Agreement Containing Covenants v13 a(c�� cb���� entered into between the Redevelopment Agency of the City of Huntington Beach (the "Agency") and CIM Group, LLC dated April 6, 2000; that certain Second Implementation Agreement entered into between the Agency and CIM Group, LLC dated March 5, 2001, that certain Third Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated October 30, 2002, that certain Fourth Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated as of September 15, 2003, that certain Fifth Implementation Agreement entered into between the Agency and CEVVHUNTINGTON, LLC dated as of July 19, 2004 and certain Sixth Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated as of November 3, 2008 (collectively, the "DDA"). The Property is referred to in the DDA as the "Site." All capitalized terms in this Second Amendment shall have the meanings ascribed to them in the DDA unless indicated to the contrary herein. D. Pursuant to the DDA, Agency and Owner entered into that certain Agreement Containing Covenants Affecting Real Property dated as of June 23, 2004 ("Original Covenant Agreement"), which was recorded. on June 25, 2004 as Instrument No. 2004000580586 and that certain First Amendment to Agreement Containing Covenants Affecting Real Property dated as of November 3, 2008 (the "First Amendment" and together with the Original Covenant Agreement, the "Covenant Agreement"), which was recorded on November 21, 2008 as Instrument No. 2008000544606. E. Pursuant to the Fifth Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated as of July 19, 2004, Owner has transferred (or is concurrently with the recordation of this Second Amendment) transferring the Hotel Property to Hotel LP. F. The Successor Agency succeeded to all of the interest of the Agency as successor agency pursuant to the Dissolution Act. "Dissolution Act" as used herein means ABxl 26, malting certain changes to the California Community Redevelopment Law and the California Health and Safety Code by adding Part 1.8 (commencing with Section 34161) and Part 185 (commencing with Section 34170) ("Part 1.85") to Division 24 of the California Health and Safety Code, as amended by Assembly Bill No. 1484 (Chapter 26, Statutes 2012) which was signed by the Governor of California on June 27, 2012, and as further amended by Assembly Bill No. 1585 which was signed by the Governor of California on September 29, 2012, and as further amended by Senate Bill No 341 which was signed by the Governor of California on October 13, 2013, and as may be further amended from time to time. G. Prior to Owner's conveyance to Hotel LP of the Hotel Property, Owner has filed two commercial condominium plans against the Owner Property, the Leased Premises, the Hotel Property, and the Hotel Leased Property. One condominium plan was filed on January 16, 2015 and contains two condominium units that will be used for the operation of a hotel (the "Hotel Condo Plan"). The other condominium plan was filed on February 3, 2015 and contains two condominium units that will be used for retail and office purposes (the "Retail Condo Plan"). It is anticipated that the condominium units in the Hotel Condo Plan (collectively, the "Hotel Units" and each a "Hotel Unit") and the condominium units in the Retail Condo Plan (collectively, the "Retail/Office Units" and each a "Retail/Office Unit") will all be sold by Hotel Second Amendment to Agreement Containing Covenants vi3 2 LP and Owner, respectively, subject to the transfer provisions in, among other applicable agreements, the DDA and the Covenant Agreement, as amended by this Second Amendment. Each of the Hotel Units and the Retail/Office Units may also be referred to herein a "Unit". The fee owner of any Unit shall be referred to herein as a "Unit Owner," provided that if any Unit is owned by more than one parry as an undivided interest, the obligations shall be applicable to any holder of an undivided interest of 50% or more of such Unit H. Owner, Hotel LP and the Successor Agency desire to enter into this Second Amendment to amend the Covenant Agreement so that the obligations imposed on Owner and Hotel LP shall be divided into obligations applicable to each Unit Owner for such Unit Owner's respective Unit and obligations that become the obligations of the Responsible Party (as defined below). NOW, THEREFORE, in consideration of the foregoing, the parties hereby agree as follows: I Revisions to Covenant Agreement. 1.1. Construction Covenants. The Construction Covenants have previously been released pursuant to the Release of Construction Covenants recorded on September 10, 2009 as Instrument No 2009000483454 and the Completion Date has been determined to be August 17, 2009, 1.2. References to Agency. All references to the Agency in the Covenant Agreement shall be deemed to refer to the Successor Agency and all references to the Agency Executive Director shall refer to the Successor Agency Executive Director 13. Surviving Covenants. 1.3.1. Individual Unit Owners' Responsibility and Description of Responsible Party. From and after the effective date of this Second Amendment, each Unit Owner (initially Hotel LP as to the Hotel Units and Owner as the Retail/Office Units) shall be responsible for all covenants contained in this Covenant Agreement with respect to the Unit owned by such Unit Owner. The covenants contained in this Covenant Agreement that are applicable to portions of the Property outside the Units (such as common areas and the Parking Parcel) shall be performed by the "Responsible Party," which shall be the Unit Owner of Parcel I of the Retail/Office Units, provided that if all of the Unit Owners unanimously elect to have such covenants performed by one or more property owners' associations for portions of the Property outside the Units (such as common areas but specifically not including the Parking Parcel), by giving written notice to the Successor Agency, such designated property owners' association shall be the Responsible Party for the performance of such covenants. 13 2. First Paragraph of Section 2. The first sentence of Section 2 shall be deleted and the following substituted in its place: Second Amendment to Agreement Containing Covenants v 13 3 "The parties hereby covenant and agree on behalf of themselves and any successors and assigns in the Property or any portion there of or any improvements thereon or any interest therein that such parties and their successors and assigns shall comply with and be bound by the following covenants (hereinafter referred to as the "Surviving Covenants"), provided that upon the transfer by a Unit Owner, the new Unit Owner shall be bound by the Surviving Covenants only as applicable to such Unit Owner's Unit and shall not be liable or responsible for any breach of this Covenant Agreement by any other party except for the Responsible Parry as to the Parking Parcel:..." 1.3.3. Section 2.a — Surviving Covenants. The first paragraph of Section 2.a. of the Covenant Agreement is hereby deleted in its entirety and replaced with the following: "a. Devote the Property, or cause the Property to be devoted, to use solely in accordance with the Redevelopment Plan, the Grant Deed, the Agreement Containing Covenants Affecting Real Property (as amended), the DDA, and plans approved by the City of Huntington Beach for hotel uses (with respect to the Hotel Units), retail uses (with respect to the Retail/Office Units), restaurant uses (with respect to the Hotel Units and the Retail/Office Units) and parking uses (with respect to the Parking Parcel), with at least 142 and approximately 157 hotel rooms, and approximately 101,591 net square feet of gross leasable area of retail and restaurant uses, and a public parking facility conforming with City approved plans. In addition to all of the other requirements under this Covenant Agreement, the hotel to be maintained on the Hotel Units shall be a Boutique Hotel having an overall standard of quality equal to or better than the following Joie de Vivre Hotels as of the date of the Sixth Implementation Agreement to the DDA (all of which have at least a four star rating): (i) Harvest Inn located in St. Helena, California, (h) Hotel Kabuki located in San Francisco, California; (iii) Hotel Los Gatos located in Los Gatos, California; (iv) Hotel Montgomery located in San Jose, California, and (v) Hotel Vitale located in San Francisco, California, and the retail and restaurant uses to be maintained on the Property shall be nationally or regionally recognizable and reputable retailers or restaurants of the nature and quality customarily included in retail/restaurant centers meeting the requirements and restrictions of the Second Revised Scope of Development (Second Revised Attachment No 4), and meeting the following requirements and restrictions:" 1.3.4 Sections 2.h and 2 i. — Surviving Covenants. Sections 2.h and 2 i of the Covenant Agreement are hereby deleted in their entirety and replaced with the following. ,,h. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, religion, creed, color, national origin, sex, sexual orientation, disability, marital status, age or any other protected classification in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Owner or Hotel LP for themselves or any person claiming under or through them establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. Second Amendment to Agreement Containing Covenants v 13 4 i. Each Unit Owner shall refrain from restricting the rental, sale or lease of the property on the basis of sex, sexual orientation, marital status, race, color, creed, religion, ancestry or national origin of any person. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (i) In deeds "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." (ii) In leases- "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him oz her, establish o:< permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased. (iii) In contracts: "There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, Second Amendment to Agreement Containing Covenants v13 5 occupancy, tenure, or enjoyment of the land, nor shall the transferee itself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with ieference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the land." " 13.5 Sections 2.o., 2.p., 2.q., 2.r. and 2 s — Surviving Covenants Sections 2 o., 2.p., 2.q., 2.r., and 2.s. shall be deleted in their entirety and replaced with the following- `°o Use the Hotel Units only for a Boutique Hotel and for no other use p. As a Responsible Party obligation, maintain, repair and operate the existing public parking facility located beneath the Property, including the twenty-five (25) additional parking spaces above and beyond the four hundred eleven (411) parking spaces required by the City to be located in the public parking facility in connection with the development of the Property, for a total of four hundred thirty-six (436) parking spaces in the public parking facility. Any changes to the size (e g , tandem and/or compact) and locations within the public parking facility of the twenty-five (25) additional parking spaces shall be pre - approved in writing by the City Planning Department from time to time. The maintenance (including repair, restoration and reconstruction) and operation of the twenty-five (25) additional parking spaces shall be in accordance with this Covenant Agreement, the Parking Management Plan approved by the City, the covenants, conditions and restrictions and reciprocal easement agreement and operating agreement to be entered into and recorded against the Site in accordance with the Conditions of Approval and the DDA, and plans approved by the City of Huntington Beach q. As a Responsible Party obligation, pay, on behalf of City and Successor Agency, any and all amounts owed to Abdelmuti Development Company ("Abdelmuti") and Jaynes A. Lane and Victoria Jean Lane, as Trustees of the James A. Lane and Victoria Jean Lane 1197 Trust, due to any increase in the cost of annual public parking passes that exceed the Threshold Cost increase (as defined in the "Amendment to OPA") pursuant to paragraph 3 of the Fourth Amendment to Owner Participation Agreement dated February 3, 2003 between Agency and Abdelmuti (the "Amendment to OPA"), and to defend, protect, indemnify and hold harmless the City and the Agency and their respective officers, agents, elected and appointed officials, employees and volunteers free and harmless therefrom. r Owner has previously entered into a hotel management agreement with Joie De Vivre Hospitality, Inc. which was approved in writing by the Agency (the "Original Management Agreement"). Prior to the expiration or termination of the Original Management Agreement (and any successor hotel management agreement(s)), Hotel Unit Owners shall obtain the Successor Agency's written approval of a new hotel management agreement which shall become effective Second Amendment to Agreement Containing Covenants vi 3 0 concurrently with the expiration or sooner termination of the hotel management agreement which it replaces. Each such hotel management agreement shall be with a manager determined by the Successor Agency to have not less than eight (8) years of experience in the successful operation of first quality hotels comparable to the hotel located on the Hotel Property. Approvals required of the Successor Agency under this Section In shall follow and be limited by the following procedures: Within twenty (20) business days after receipt of Hotel Unit Owners' request for approval, the Successor Agency shall respond in writing by stating what further information, if any, the Successor Agency reasonably requires in order to determine whether or not to approve the agreement. Hotel Unit Owners shall promptly furnish to Successor Agency such further information as may be reasonably requested Hotel Unit Owners' request for approval shall be deemed complete twenty (20) business days after Successor Agency's receipt thereof, if no timely response requesting further information is delivered to Hotel Unit Owners, or, if such a timely response requesting further information is received, on the date that Hotel Unit Owners deliver such additional information to Successor Agency, provided that Hotel Unit Owners' additional information is responsive to Successor Agency's request. Successor Agency shall approve or disapprove the matter within thirty (30) business days after Hotel Unit Owners' request for such approval is accepted as complete or is deemed complete. Approval will not be unreasonably withheld if Hotel Unit Owners demonstrate that the proposed management agreement will provide capable, competent and experienced operation of hotels similar in quality, size and type as required to be maintained on the Property pursuant to the DDA and this Covenant Agreement. If Successor Agency shall disapprove a hotel operator, Successor Agency shall do so by written notice to Hotel Unit Owners stating the reasons for such disapproval. S. At the time Owner entered into the Original Management Agreement, the requirement for a hotel franchise agreement was waived. Prior to entering into any franchise agreement or changing the flag of the hotel, Hotel Unit Owners shall obtain the Successor Agency's written approval of such hotel franchise agreement (the "Original Franchise Agreement") and/or new flag of the hotel using the same approval procedures as are set forth in Section 2.r. herein above for approval of the hotel management agreement. Any franchise agreement or hotel flag shall provide for the operation of a hotel meeting the size, level of quality and other requirements and restrictions set forth herein and shall be with a franchisor determined by the Successor Agency to be comparable to, or of higher quality than, the franchisor under the Original Franchise Agreement. Prior to the expiration or termination of the Original Franchise Agreement (and any successor hotel franchise agreement(s)), Hotel Unit Owners shall obtain the Successor Agency's written approval (pursuant to said approval procedures) of a new hotel franchise agreement which shall become effective concurrently with the Second Amendment to Agreement Containing Covenants v13 7 expiration or sooner termination of the hotel franchise agreement which it replaces." 1.3.6 Section 4--Transfer Restrictions. Section 4 of the Covenant Agreement shall be deleted in its entirety and the following substituted in its place: "Transfer Restrictions Owner and Hotel LP recognize that, Development of the Property is important to the general welfare of the community; and Substantial financing and other public aids have been made available by law and by the government for the purpose of making redevelopment possible, and The qualifications and identity of Owner, Hotel LP and each Unit Owner are of particular concern to the community and Successor Agency. Accordingly, Owner, Hotel LP and each Unit Owner agree to comply with the provisions of this Covenant Agreement relating to Transfer (a) For the reasons set forth above in this Paragraph 4, neither Owner, Hotel LP nor Unit Owner shall assign this Covenant Agreement or sell the Property, any Unit or any portion thereof, nor lease nor make any total or partial conveyance or transfer in any mode or form of all or any part of the Property or Unit or the improvements thereon, or any interest therein, nor shall there be any change in the identity of Owner, Hotel LP or Unit Owner or change in the ownership of Owner, Hotel LP or Unit Owner or in the relative proportions thereof, or with respect to the identity of the parties in control of Owner, Hotel LP or Unit Owner or the degree thereof, by any method or means (other than such changes occasioned by the death or incapacity of any individual), (collectively, "Transfer"), without the prior written approval of Successor Agency, which approval shall not be unreasonably withheld or delayed if the proposed Transferee (as defined hereinbelow) is determined by the Successor Agency to have qualifications equal to or better than the original Owner as of the date of Original Covenant Agreement in all material respects, including but not limited to (a) financial strength, (b) experience in the successful operation, management and marketing of hotels, restaurants, and retail improvements, (c) character and reputation, and (d) the ability to perform all of the agreements, undertakings, and covenants of this Covenant Agreement (as amended), the Grant Deed, and all other agreements entered into by Owner, Hotel LP or Unit Owner which relate to the management, operation, maintenance, and restoration of the Property or Unit and of the improvements thereon_ Owner, Hotel LP or Unit Owner (as applicable) shall promptly notify Successor Agency of any and all changes whatsoever in the identity of the parties in ownership or control of Owner, Hotel LP or Unit Owner or the degree thereof, of which it or any of its officers have been notified or otherwise have knowledge or information. Any entity formation agreements and documents (or changes therein) related to a Transfer, as well as the agreements and documents effectuating any Transfer, shall be subject to the approval of Successor Agency's Executive Director in connection with its approval of the Transfer. Second Amendment to Agreement Containing Covenants v 13 (b) To assist Successor Agency in determining whether or not the proposed Transferee is so qualified, the requesting Owner, Hotel LP or Unit Owner shall furnish to Successor Agency at no expense to Successor Agency, prior to that Transfer, detailed and complete financial statements of the proposed Transferee, audited by a certified public accountant reasonably satisfactory to Successor Agency, together with detailed and complete information about the business of the proposed Transferee, including its experience in developing and operating improvements of the type to be constructed on the Property, the use to be made of the Property and the improvements thereon by the proposed Transferee, projections by the proposed Transferee of the sources of funds to be used to pay any indebtedness that the proposed Transferee will assume or tape subject to, or agree to pay, in connection with the Transfer, and other claims on and requirements for those funds, together with any other information Successor Agency may reasonably require to assist Successor Agency in determining whether or not the proposed Transferee is so qualified. To the greatest extent permitted by law, if Owner, Hotel LP or such Transferee provides Successor Agency with any proprietary financial information relating to a proposed Transferee, Successor Agency shall not, without Owner's, Hotel LP's or Unit Owner's (as applicable) prior written consent, disclose or make any such financial information available to the public. (c) Approval by Successor Agency of any Transfer shall be conditioned upon such assignee, conveyee or transferee (collectively "Transferee") agreeing, in writing, to assume the rights and obligations thereby transferred and to keep and perform all covenants, conditions and provisions of this Covenant Agreement (as amended) and the Grant Deed which are applicable to the rights acquired. (d) The limitations on Transfer contained in this Paragraph 4 shall not be deemed to apply to or prevent, nor shall Successor Agency's approval be required under this Paragraph 4 in connection with, the granting of any security interest expressly permitted under this Covenant Agreement (as amended); nor the exercise by any mortgagee of its right to foreclose its mortgage by power of sale or judicial foreclosure; nor any Transfer of an interest by a mortgagee having acquired Owner's interest in the Property or Hotel LP's interest in the Property or a Unit Owner's interest in a Unit as a result of its rights under the mortgage, or by any successor to the mortgagee whose interest shall have been acquired by, through or under any mortgage or shall have been derived immediately from any holder thereof. Notwithstanding the foregoing provisions of this paragraph (d), the limitations on Transfer contained in this Paragraph 4 shall apply to any mortgagee which acquires its interest in the Property or the improvements thereon other than by the exercise of its rights pursuant to the mortgage or deed in lieu of foreclosure. (e) Any purported Transfer shall be null and void unless it complies with the terms of this Paragraph. (f) Each Unit Owner shall only Transfer each Unit Owner's entire interest in the Unit and the Improvements thereon as a whole and shall not re -subdivide the Property or the Unit or the improvements thereon beyond the subdivision existing as of the date of the recordation of the Second Amendment to this Covenant Agreement without the prior written approval of Successor Agency, which Successor Agency may grant or withhold in its discretion; Second Amendment to Agreement Contammg Covenants v 13 0 provided, however, the two Units in the Hotel Condo Plan shall at all times be owned by the same Owner and shall not be financed, conveyed, hypothecated or transferred separately. (g) All costs incurred by Successor Agency to review any Transfer proposed by Owner, Hotel LP or a Unit Owner as reasonably necessary to close any Transfer shall be paid by the requesting parry. With respect to each Transfer, the requesting party shall deliver a retainer to Successor Agency in the sum of Five Thousand Dollars ($5,000), to be applied to the payment of Successor Agency's costs. The administrative costs of Successor Agency shall be charged at the actual cost thereof not to exceed an hourly rate of Fifty Dollars ($50.00). The costs of Successor Agency for consultants or legal services required for providing such assistance shall be the actual sums billed to Successor Agency for such consulting or legal services. All such costs in excess of Five Thousand Dollars ($5,000) shall be paid within ten (10) days after written request therefor by Successor Agency. If such costs incurred by Successor Agency for a Transfer equal less than Five Thousand Dollars ($5,000), the balance shall be refunded promptly following the closing. (h) With respect to the leasing of space for occupancy, Owner or a Unit Owner shall not be required to submit the documentation otherwise required for a Transfer by subparagraph (b), nor the assignment and assumption agreement otherwise required by subparagraph (c), nor pay the costs referred to in subpai agraph (g); provided, however, that such lease shall contain appropriate provisions conforming the use and operation of the premises to the covenants of the Giant Deed and this Covenant Agreement (as amended), and further provided, that such tenant is a first quality nationally or regionally recognizable and reputable retailer or restaurant of the nature and quality customarily included in retail/restaurant centers meeting the requirements and restrictions of this Covenant Agreement (as amended)." 13.7 Section 5—Agency Participation Payment. Each Unit Owner shall calculate the Agency Participation Payment with respect to such Unit Owner's Unit and pay any Agency Participation Payment, subject to the following: (a) The current balance of the Project Cost for each Unit as of April 30, 2013 (including all accrued Developer's Annual Return as of such date) is: Retail/Office Units: Parcel 1: $54,253,852 Parcel 2: $26,980,450 Hotel Units (to be calculated as one Unit): $79,873,706 (b) Each Unit Owner shall be responsible for complying with the reporting and payment obligations for such Unit Owner's Unit as described in Covenant Agreement, provided that the Hotel Units shall be calculated and reported together by the Unit Owner of the Hotel Units Second Amendment to Agreement Containing Covenants v 13 10 2. Covenant to Hold Hotel Units Together, The two Units in the Hotel Condo Plan shall at all times be owned by the same Owner and shall not be financed, conveyed, hypothecated or transferred separately 3. Release and Covenant Not to Sue. Owner and Hotel LP for themselves, and on behalf of each and all of their respective members, partners, employees, agents, attorneys, successors and assigns hereby fully, absolutely and irrevocably waives, releases, remises, acquits and forever discharges Successor Agency and City of Huntington Beach and each of their respective members, commissioners, employees, partners, shareholders, principals, agents, attorneys, successors and assigns from any and all claims, rights, demands, suits, awards, judgments, damages, actions, causes of action, lawsuits, costs, obligations, liabilities, defaults and duties of every kind and nature, known or unknown, existing or future, suspected or unsuspected, asserted or unasserted, fixed or contingent, at law or in equity arising out of or relating in any way to any of the following events: (a) Successor Agency's Oversight Board and/or the California Department of Finance asserts jurisdiction and/or the right to approve or disapprove this Second Amendment or threatens to assert jurisdiction and/or the right to approve or disapprove this Second Amendment, (b) Successor Agency's Oversight Board and/or the California Department of Finance disapproves or threatens to disapprove this Second Amendment or determines or threatens to determine that this Second Amendment is invalid (or any similar disapproval/determination), (c) Successor Agency's Oversight Board and/or the California Department of Finance determines or threatens to determine that the DDA or any term(s) therein or any parts thereof is/are no longer an "enforceable obligation(s)" under the Dissolution Act due in any way to the Successor Agency approving or entering into this Second Amendment and/or implementation of this Second Amendment (or any similar determination); (d) Any third party initiates or threatens to initiate any litigation or administrative proceeding or action due in any way to Successor Agency approving or entering into this Second Amendment and/or implementation of this Second Amendment; and/or (e) Successor Agency's Oversight Board and/or the California Department of Finance determines or threatens to determine that any amounts listed on any ROPS pertaining to the DDA should be reduced or disapproved in whole or in part due in any way to the Successor Agency approving or entering into this Second Amendment and/or implementation of this Second Amendment (or any similar disapproval/determination). The events in Sections 3(a) through 3(e) above may each be referred to herein as a "Challenge„ Owner and Hotel LP for themselves, and on behalf of each and all of their respective members, partners, employees, agents, attorneys, successors and assigns hereby agree that Owner and Hotel LP and each and all of their respective members, partners, employees, agents, attorneys, successors and assigns shall not initiate, institute, maintain or prosecute in any manner Second Amendment to Agreement Containing Covenants v 13 11 any suit, action, or other proceeding, or voluntarily aid in the initiation, institution, maintenance or prosecution of any claim or legal action, state or federal, in law or in equity, against Successor Agency or City of Huntington Beach or any of their respective members, commissioners, employees, partners, shareholders, principals, agents, attorneys, successors and assigns with respect to any matter, cause or thing whatsoever arising out of or relating in any way to any Challenge. In this regard, and not by way of limitation of the foregoing, Owner and Hotel LP each acknowledge that it has been represented by its own legal counsel with respect to the subject matter of this Second Amendment and the negotiation and preparation of same, that it has not relied upon any representation or warranty of Successor Agency or the City of Huntington Beach with respect thereto or the validity or enforceability of this Second Amendment, and in particular that neither Successor Agency nor the City of Huntington Beach has made and is not making any representation or warranty to Owner or Hotel LP with respect to Successor Agency's authority to approve, enter into, and/or perform obligations under this Second Amendment under applicable provisions of the Dissolution Act or otherwise or with respect to Successor Agency's authority to do so without seeking and obtaining the approvals of Successor Agency's Oversight Board and/or the California Department of Finance, and that Owner and Hotel LP assume the full risk with respect thereto, including, without limitation, in the event a Challenge occurs. In this regard, Owner and Hotel LP forever and irrevocably each waive the protections of California Civil Code Section 1542, entitled "General release, extent," and which provides that "[a) general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Notwithstanding the foregoing, however, nothing herein is intended or shall be interpreted as a release, waiver, or covenant not to sue arising out of any actual or alleged default or breach by Successor Agency in performing its obligations under this Second Amendment. 4. Indemmty. Owner and Hotel LP each covenant to indemnify, defend, and hold harmless Successor Agency and the City of Huntington Beach and each of their respective members, commissioners, employees, partners, shareholders, principals, agents, attorneys, successors and assigns from and against any and all loss, liability, damage, claim, cost and expense (including reasonable attorneys' fees, court and litigation costs and fees of expert witnesses) arising out of or relating in any way to any Challenge. Without limiting the foregoing, and as a part of the foregoing indemnity and hold harmless, in the event of a Challenge described in Section 3 (e), Successor Agency agrees, at no cost to Successor Agency or the City of Huntington Beach, to participate in whatever administrative appeal or meet -and -confer process may be available under applicable provisions of the Dissolution Act, including, without limitation, Health & Safety Code Section 34177(m). As used herein, the phrase "at no cost to Successor Agency or the City of Huntington Beach" shall mean that Owner and Hotel LP shall be jointly responsible and liable for promptly paying or reimbursing Successor Agency and City of Huntington Beach for all of Successor Agency's and City of Huntington Beach's actual and reasonable costs and expenses, costs and expenses Second Amendment to Agreement Containing Covenants v€3 12 related to Successor Agency's and City of Huntington Beach's consultants or legal counsel, and any other costs and expenses (e.g., travel casts) incurred with respect to such participation until the date the matter is finally resolved, all as reasonably determined by the Successor Agency Executive Director. 5. Further Revisions. Any provisions of the Covenant Agreement which conflict with the intent of this Second Amendment shall be deemed revised in accordance with this Second Amendment. Nothing in this Second Amendment is intended to or limits in any way any general provision in the Covenant Agreement that may pertain to Owner's or Hotel LP's or Unit Owner's obligations thereunder. b. Binding on Successors and Assigns. This Second Amendment shall be binding upon and inure to the benefit of the successors, assignees, personal representatives, heirs and legatees of the parties hereto. 7 DDA and Covenant Agreement in Full Force and Effect Except as otherwise modified herein, the terms and conditions of the Covenant Agreement shall remain unmodified and in full force and effect. In the event of any conflict between the terms of this Second Amendment and the Covenant Agreement, the terms of this Second Amendment shall control. It is the intention of the parties that this Second Amendment and each provision hereof be interpreted so as not to increase the obligations of the Successor Agency under the DDA and Covenant Agreement or to cause the Successor Agency to take any action described in Section 34180 of the California Health and Safety Code. In the event that for any reason this Second Amendment is determined to be denied, disapproved, invalid or unenforceable by a determination or ruling by any court or administrative agency or body, including, without limitation, Successor Agency's Oversight Board, the California Department of Finance, or the State Controller's Office, or if the California Department of Finance determines that the DDA and/or the Successor Agency's obligations thereunder is/are not an "enforceable obiigation[s]" as defined in the Dissolution Act as a result of approving, entering into and/or performing obligations under this Second Amendment nothing herein shall be deemed to modify or terminate the DDA and Covenant Agreement as currently written, the same shall survive and shall be enforceable in accordance with and subject to the terms and conditions set forth therein, and Owner, Hotel LP and each Unit Owner shall be bound by the terms, covenants and restrictions thereof. 8. Further Assurances. The parties agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Second Amendment and the DDA. 9 Date of this Second Amendment. The effective date of this Second Amendment shall be the date upon which the Successor Agency has executed this Second Amendment. 10. Counterparts. This Second Amendment may be executed by each party on a separate signature page, and when the executed signature pages are combined with the balance of this Second Amendment, it shall constitute one single instrument. Second Amendment to Agreement Containing Covenants v 13 13 [signatures on following pages] [remainder of page left intentionally blank] second Amendment to Agreement Containing Covenants v 13 14 Date - ATTEST: ii sWE A""• i AS TOFORM: APPROVED AS TO FORM: Kane, Ballmer & Berkman Successor Agency: Successor Agency to the Redevelopment Agency of the APPROVED Gates, City Attorney [signatures continue on following page] Second Amendment to Agreement Containing Covenants v 13 15 Owner: CWHuntington, LLC, a California limited liability company Date: VA=S01 S Name a ompson resident Title: and Chief Financial Officer Hotel LP• CIM1Huntington Hotel, LP, a California limited partnership By CIM California Urban RE Fund IV, LLC Its general partner i Date. ?01. David Thompson Name: Mee o..... d. t Title: and Chief Financial ►cer Second Amendment to Agreement Containing Covenants v 13 ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss. COUNTY OF IOS ) On ��o' c �/lGl �1�/G ( J� insert n mle an e of the Z'IL'11 /� _ Wore, /f�y1Cc officer), personally appeared df (insertname(s) of signer(s)) who proved to me on the basis of satisfactory evidence to be the persono) whose name(P) is/a*e subscribed to the within instrument and acknowledged to me that he/sue executed the same in his/hwAhar authorized capacrty(ie&), and that by his/13efAki5r signature(O on the instrument the person($), or the entity upon behalf of which the person($) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Ignatur (Seal) DEANA JEAN WALK Commission # 1928343 ¢ i • J Notary Public - California z .1 j, Los Angeles County My Comm Expires Mar 12, 2015 ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ss. COUNTY OF On j5g � Zolr- before me, , L- 6�P4-A —'PO ere insert name and title of the officer), personally appeared ?2cd (insert name() of signer ) who proved to me on the basis of satisfactory evidence to be the person) whose name i are subscribed to th�e within instrument and acknowledged to me that (�7e shy executed the same in (JW- l e ek authorized capacity(4es}, and that by is' e eir signature on the instrument the person, or the entity upon behalf of which the person " acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal.5 P ESPARZA Commissions # 2032750 z •' Notary Public - California z Orange County D fwM Comm. Expsres Aug 4.2017' Signature ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ss. On ��°L/t uA�J ?l, before me, (here insert name and title of the officer), personally appeared,/(j�} (. EV-,.1n> (insert name{s) of signer(s)) who proved to me on the basis of satisfactory evidence to be the person') whose name is' are subscribed to the within instrument and acknowledged to me that -h/she/ executed the same in -il.pe their authorized capacity(ies), and that by -hi er eIr signature o on the instrument the pers6n 6, or the entity upon behalf of which the person) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal. P L E PARZA Commission # 2032750 z a -ad Notary Public - California a orange County ' My Comm. Expsres Au 4, 20f 7 Signature ! 1: OWNER PROPERTY [behind this page] EXHIBIT A An undivided 95.495% interest in and to: Parcel 1: Condominium Units 1 and 2 as said Units are shown and defined in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. Parcel 2: That Portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as shown on map recorded in Book 870, Pages 47 to 50 inclusive of Miscellaneous Maps, in the Office of the County Recorder of said County shown and defined as Common Area -- Retail/Office Parcel in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. EXCEPT THEREFROM all that portion of said land lying below a depth of 500 feet measured vertically from the present surface of the ground. ALSO EXCEPT THEREFROM all that portion of said Lot 1 shown and defined as Condominium Units 1 and 2 and Common Area- Hotel Parcel in the Condominium Plan Recorded January 16, 2015 as Instrument No. 2015000028146, Official Records. ALSO EXCEPT THEREFROM: All that portion of said Lot 1 shown and defined as Association Property in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. ALSO EXCEPT THEREFROM: Parcels A and B as hereinafter described Parcel A: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Los Angeles, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 41" 3710" East 124.55 feet; thence North 48" 21' 52"' West, along said parallel line, 4.70 feet to the point of beginning; thence, along the following 10 courses and distances: 1. North 48121' 52"' West, along said parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet; 3. South 4810 21' 52" East, 77.00 feet; 4. South 640 55' 17" East, 19.30 feet; S. South 480 21' 52" East, 30.00 feet; 6. North 410 38' 08" East, 182.00 feet; 7. South 480 21' 52" East, 275.00 feet; 8. South 410 38' 08" West, 211.58 feet; 9. North 480 21' S2" West, 63.67 feet; 10. South 410 38' 08" West, 124.42 feet to the point of beginning. EXCEPT from said Parcel A, that portion thereof lying above elevation 25.66 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion thereof lying below elevation 9.00 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion indicated as "Components" as defined in Article 1.18 of the declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. Parcel B: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain coarse along the Southeasterly boundary of said Lot 1, said course being shown as North 41' 37' 10" East 124.55 feet; thence North 480 21' 52' West, along said parallel line, 4.70 feet; thence along the following 14 courses and distances: 1. North 480 21' 52 feet, along said Parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet to the point of beginning; 3. North 480 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1; 4. North 410 37 11" East, along said Northwesterly line, 40.75 feet; 5. South 48° 21' 52" East, 15.93 feet; 6. North 410 38' 08" East, 2.00 feet; 7. South 4810 21' 52" East, 43.83 feet; 8. South 590 00' 03" East, 52.82 feet; 9. South 77° 09' 19" East, 21.11 feet; 10. South 48° 21' 25" East, 11.25 feet; 11. South 410 38' 08" West, 57.17 feet; 12. North 480 21' 52" West, 30.00 feet; 13. North 640 55' 17" West, 19.30 feet; 14. North 481 21' S2" West, 77.00 feet to the point of beginning. EXCEPT from said Parcel B, that portion thereof lying above and between an elevation of 38.79 feet on the Northwesterly line of said Parcel 2 and an elevation of 26.33 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion thereof lying below and between an elevation of 30.46 feet on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion indicated as "Components" as defined in Article 1.18 of the Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. EXHIBIT B LEASED PREMISES An undivided 4.505% interest in and to: Parcel 1: Condominium Units 1 and 2 as said Units are shown and defined in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. Parcel 2: That Portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as shown on map recorded in Book 870, Pages 47 to 50 inclusive of Miscellaneous Maps, in the Office of the County Recorder of said County shown and defined as Common Area — Retail/Office Parcel in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. EXCEPT THEREFROM all that portion of said land lying below a depth of 500 feet measured vertically from the present surface of the ground. ALSO EXCEPT THEREFROM all that portion of said Lot 1 shown and defined as Condominium Units 1 and 2 and Common Area- Hotel Parcel in the Condominium Plan Recorded January 16, 2015 as Instrument No. 2015000028146, Official Records. ALSO EXCEPT THEREFROM: All that portion of said Lot 1 shown and defined as Association Property in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. ALSO EXCEPT THEREFROM: Parcels A and B as hereinafter described Parcel A: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Los Angeles, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 41° 37' 10"" East 124.55 feet; thence North 480 21' 52" West, along said parallel line, 4.70 feet to the point of beginning; thence, along the following 10 courses and distances: 1. North 4810 21' 52" West, along said parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet; 3. South 480 21' 52" East, 77.00 feet; 4. South 640 55' 17" East, 19.30 feet; 5. South 480 21' 52" East, 30.00 feet; 6. North 410 38' 08" East, 182.00 feet; 7. South 480 21' 52" East, 275.00 feet; 8. South 410 38' 08" West, 211.58 feet; 9. North 480 21' 52" West, 63.67 feet; 10. South 410 38' 08" West, 124.42 feet to the point of beginning. EXCEPT from said Parcel A, that portion thereof lying above elevation 25.66 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion thereof lying below elevation 9.00 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion indicated as "Components" as defined in Article 1.18 of the declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 instrument No. 2009-47214, of Official Records. That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 4111 37' 10" East 124.55 feet; thence North 480 21' 52' West, along said parallel line, 4.70 feet; thence along the following 14 courses and distances: 1. North 480 21' 52 feet, along said Parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet to the point of beginning; 3. North 480 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1; 4. North 410 37' 11" East, along said Northwesterly line, 40.75 feet; 5. South 480 21' 52" East, 15.93 feet; 6. North 410 38' 08" East, 2.00 feet, 7. South 480 21' 52" East, 43.83 feet; 8. South 590 00' 03" East, 52.82 feet; 9. South 771 09' 19" East, 21.11 feet; 10. South 4810 21' 25" East, 11.25 feet; 11. South 410 38' 08" West, 57.17 feet; 12. North 480 21' 52" West, 30.00 feet; 13. North 640 55' 17" West, 19.30 feet; 14. North 480 21' 52" West, 77.00 feet to the point of beginning. EXCEPT from said Parcel B, that portion thereof lying above and between an elevation of 38.79 feet on the Northwesterly line of said Parcel 2 and an elevation of 26.33 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion thereof lying below and between an elevation of 30.46 feet on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion indicated as "Components" as defined in Article 1.18 of the Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No, 2009-47214, of Official Records. EXHIBIT C HOTEL PROPERTY EXHIBIT C An undivided 95.495% interest in and to: Parcel 1: Condominium Units 1 and 2 as said Units are shown and defined in the Condominium Plan Recorded January 16, 2015 as Instrument No. 2015000028146, Official Records. Pa rcel 2: That Portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as shown on map recorded in Book 870, Pages 47 to 50 inclusive of Miscellaneous Maps, in the Office of the County Recorder of said County shown and defined as Common Area — Hotel Parcel in the Condominium Plan Recorded January 16, 2015 as Instrument No. 2015000028146, Official Records. EXCEPT THEREFROM all that portion of said land lying below a depth of 500 feet measured vertically from the present surface of the ground. ALSO EXCEPT THEREFROM all that portion of said Lot 1 shown and defined as Condominium Units 1 and 2 and Common Area- Retail/Office Parcel in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. ALSO EXCEPT THEREFROM: All that portion of said Lot 1 shown and defined as Association Property in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. ALSO EXCEPT THEREFROM: Parcels A and B as hereinafter described Parcel A: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Los Angeles, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 41° 37' 10" East 124.55 feet; thence North 480 21' S2" West, along said parallel line, 4.70 feet to the point of beginning; thence, along the following 10 courses and distances: I. North 480 21' 52" West, along said parallel line, 336.83 feet; 2. North 4110 38' 08" East, 148.50 feet; 3. South 480 21' 52" East, 77.00 feet; 4. South 6410 55' 17" East, 19.30 feet; 5. South 480 21'52" East, 30.00 feet; 6. North 410 38' 08" East, 182.00 feet; 7. South 480 21' 52" East, 275.00 feet; 8. South 410 38' 08" West, 211.58 feet; 9. North 480 21' 52" West, 63.67 feet; 10. South 410 38' 08" West, 124.42 feet to the point of beginning. EXCEPT from said Parcel A, that portion thereof lying above elevation 25.66 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion thereof lying below elevation 9.00 feet (NAVD 88). Also EXCEPT From said Parcel A, that portion indicated as 'Components" as defined in Article 1.18 of the declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. Parcel B: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot i with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 410 37' 10" East 124.55 feet; thence North 480 21' 52' West, along said parallel line, 4.70 feet; thence along the following 14 courses and distances: 1. North 481 21' 52 feet, along said Parallel line, 336.83 feet; 2. North 41° 38' 08" East, 148.50 feet to the point of beginning; 3. North 480 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1; 4. North 410 37' 11" East, along said Northwesterly line, 40.75 feet; 5. South 480 21' 52" East, 15.93 feet; 6. North 410 38' 08" East, 2.00 feet; 7. South 480 21' 52" East, 43.83 feet; 8. South 5910 00' 03" East, 52.82 feet; 9. South 770 09' 19" East, 21.11 feet; 10. South 480 21' 25" East, 11.25 feet; 11. South 410 38' 08" West, 57.17 feet; 12. North 480 21' 52" West, 30.00 feet; 13. North 640 55' 17" West, 19.30 feet; 14. North 480 21' 52" West, 77.00 feet to the point of beginning. EXCEPT from said Parcel B, that portion thereof lying above and between an elevation of 38.79 feet on the Northwesterly line of said Parcel 2 and an elevation of 26.33 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion thereof lying below and between an elevation of 30.46 feet on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion indicated as `Components" as defined in Article 1.18 of the Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. EXHIBIT D HOTEL LEASED PROPERTY EXHIBIT D An undivided 4.505% interest in and to: Parcel 1: Condominium Units 1 and 2 as said Units are shown and defined in the Condominium Plan Recorded January 16, 2015 as Instrument No. 2015000028146, Official Records. Parcel 2: That Portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as shown on map recorded in Book 870, Pages 47 to 50 inclusive of Miscellaneous Maps, in the Office of the County Recorder of said County shown and defined as Common Area -- Hotel Parcel in the Condominium Plan Recorded January 16, 2015 as Instrument No. 2015000028146, Official Records. EXCEPT THEREFROM all that portion of said land lying below a depth of 500 feet measured vertically from the present surface of the ground. ALSO EXCEPT THEREFROM all that portion of said Lot 1 shown and defined as Condominium Units 1 and 2 and Common Area- Retail/Office Parcel in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. ALSO EXCEPT THEREFROM: All that portion of said Lot 1 shown and defined as Association Property in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. ALSO EXCEPT THEREFROM: Parcels A and B as hereinafter described Parcel A: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Los Angeles, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 410 37' 10" East 124.55 feet; thence North 480 21" 52" West, along said parallel line, 4.70 feet to the point of beginning; thence, along the foilowing 10 courses and distances: I. North 480 21' 52" West, along said parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet; 3. South 480 21' 52" East, 77.00 feet; 4. South 640 55' 17" East, 19.30 feet; 5. South 480 21' 52" East, 30.00 feet; 6. North 410 38' 08" East, 182.00 feet; 7. South 481 21' 52" East, 275.00 feet; 8. South 410 38' 08" West, 211.58 feet; 9. North 480 21' 52" West, 63.67 feet; 10. South 410 38' 08" West, 124.42 feet to the point of beginning. EXCEPT from said Parcel A, that portion thereof lying above elevation 25.66 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion thereof lying below elevation 9.00 feet (NAVD 88). Also EXCEPT From said Parcel A, that portion indicated as "Components" as defined in Article 1.18 of the declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. Parcel B: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 410 3710" East 124.55 feet; thence North 480 21' 52' West, along said parallel line, 4.70 feet; thence along the following 14 courses and distances: 1. North 48" 21' 52 feet, along said Parallel line, 336.83 feet, 2. North 411 38' 08" East, 148.50 feet to the point of beginning; 3. North 480 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1; 4. North 410 37' 11" East, along said Northwesterly line, 40.75 feet, 5. South 480 21' 52" East, 15.93 feet; 6. North 410 38' 08" East, 2.00 feet; 7. South 480 21' 52" East, 43.83 feet; 8. South 590 00' 03" East, 52.82 feet; 9. South 770 09' 19" East, 21.11 feet; 10. South 480 21' 25" East, 11.25 feet; 11. South 411 38' 08" West, 57.17 feet; 12. North 480 21' 52" West, 30.00 feet; 13. North 640 55' 17" West, 19.30 feet; 14. North 480 21' 52" West, 77.00 feet to the point of beginning. EXCEPT from said Parcel B, that portion thereof lying above and between an elevation of 38.79 feet on the Northwesterly line of said Parcel 2 and an elevation of 26.33 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion thereof lying below and between an elevation of 30.46 feet on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion indicated as "Components" as defined in Article 1.18 of the Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 instrument No. 2009-47214, of Official Records. EXHIBIT E PARKING PARCEL EXHIBIT E Parcel A. That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Los Angeles, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 410 37' 10" Fast 124.55 feet; thence North 480 21'52"' West, along said parallel line, 4.70 feet to the point of beginning; thence, along the following 10 courses and distances: 1. North 48° 21' 52" West, along said parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet; 3. South 480 21' 52" East, 77.00 feet; 4. South 640 55' 17" East, 19.30 feet; 5. South 480 21' 52" East, 30.00 feet; 6. North 410 38' 08" East, 182.00 feet; 7. South 480 21' 52" East, 275.00 feet; 8. South 410 38' 08" West, 211.58 feet; 9. North 480 21' 52" West, 63.67 feet; 10. South 410 38' 08" West, 124.42 feet to the point of beginning. EXCEPT from said Parcel A, that portion thereof lying above elevation 25.66 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion thereof lying below elevation 9.00 feet (NAVD 88). Also EXCEPT From said Parcel A, that portion indicated as "Components" as defined in Article 1.18 of the declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. Parcel B; That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 410 37' 10" East 124.55 feet; thence North 480 21' 52' West, along said parallel line, 4.70 feet; thence along the following 14 courses and distances: 1. North 480 21' 52 feet, along said Parallel line, 336.83 feet; 2. North 410 38' 08" East, 14850 feet to the point of beginning; 3. North 480 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1; 4. North 410 37' 11" East, along said Northwesterly line, 40.75 feet; 5. South 480 21' 52" East, 15.93 feet; 6. North 410 38' 08" East, 2.00 feet; 7. South 480 21' 52" East, 43.83 feet; 8. South 590 00' 03" East, 52.82 feet, 9. South 770 09' 19" East, 21.11 feet; 10. South 480 21' 25" East, 11.25 feet; 11. South 41138' 08" West, 57.17 feet; 12. North 480 21' 52" West, 30.00 feet; 13. North 640 55' 17" West, 19.30 feet; 14. North 48° 21' 52" West, 77.00 feet to the point of beginning. EXCEPT from said Parcel B, that portion thereof lying above and between an elevation of 38.79 feet on the Northwesterly line of said Parcel 2 and an elevation of 26.33 fleet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion thereof lying below and between an elevation of 30.46 feet on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion indicated as "Components" as defined in Article 1.18 of the Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT THIS ASSIGNMENT AND ASSUMPTION OF PURCHASE AND SALE AGREEMENT (this "Assignment") is entered into as of the 6th day of February, 2015 (the "Effective Date"), by and between DiamondRock Acquisition, LLC, a Delaware limited liability company ("Assignor'), and DiamondRock HB Owner, LLC, a Delaware limited liability company ("Assignee") Background WHEREAS, Assignor and CIM/Huntmgton, LLC, a California limited liability company ("Seller"), have entered into that certain Purchase and Sale Agreement and Joint Escrow Instructions, dated as of November 17, 2014, with respect to the purchase by Assignor of the fee and leasehold interest, as applicable, in that certain parcel of land, corresponding air rights and the improvements located thereon and therein, more commonly known as The Shorebreak Hotel, located at 500 Pacific Coast Highway, Huntington Beach, California 92648 (as it may be amended and assigned, the "Purchase Agreement"), WHEREAS, DiamondRock Hospitality Company, a Maryland corporation, owns a direct or indirect controlling interest in both Assignor and Assignee, and WHEREAS, in accordance with Section 10.3 of the Purchase Agreement, Assignor desires to assign to Assignee and Assignee desires to assume from Assignor all of Assignor's right, title and interest in, to, and under the Purchase Agreement NOW, THEREFORE, for Ten Dollars ($10 00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be bound, the parties hereto hereby agree as follows 1. Assignment Assignor hereby assigns, transfers and conveys all of its right, title and interest in, to and under the Purchase Agreement to Assignee. 2. Assumption. Assignee hereby assumes the covenants, agreements, obligations and liabilities of Assignor with respect to the Purchase Agreement (collectively, the "Assumed Obligations") 3. Joint and Several Liability Assignor and Assignee shall be jointly and severally liable for the Assumed Obligations under the Purchase Agreement 4. No Representation. This Assignment is made without recourse, representation or warranty of any kind whatsoever. 5. Successors and Assigns This Assignment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns 69929789v2 6. Counterpart Execution This Assignment may be executed in one or more counterparts, each of which when so executed and delivered shall be deemed an original, but all of which when taken together shall constitute but one and the same instrument 7. Entire Agreement. This Assignment sets forth the entire agreement of the parties hereto with respect to the subject matter hereof and may not be altered, amended, changed, waived, terminated or modified in any respect or particular unless the same shall be in writing and signed by each of the parties hereto 8. Governing Law. This Assignment shall be construed and enforced in accordance with the laws of the State of New York, without regard to principles of conflict of law [Remainder of page intentionally left blank] -2- IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be executed as of the date first above written. ASSIGNOR: DIAMONDROCK ACQUISITION, LLC, a Delaware limited liability company By 81�a— Name: Briony R Quinn Title. Director ASSIGNEE: DIAMONDROCK HB OWNER, ]LLC, a Delaware limited liability company By. Name. William J te1nnis Title: Director [Signature Page to Assignment and Assumption of Purchase and Sale Agreement] Old Republic Title Company Major Accounts - Commercial Division Recording requested by and when recorded return to Arnold & Porter LLP 555 12`i' Street, N W. Washington, D C. 20004 Attention. John W Jacobsen Assessor's Parcel Nos A-W©a`{- /9? - � & Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder 1IIII I I IIII 111 Illl! II`li III31111 III! l lIl !IIII IiN111111 Ills I1 1I Jill 75.00 *$ R 0 0 n 7 2 7 7 6 9 4$ 20150000596614:00 pm 02t06l15 63 409 A30 A38 C34 F1 S 17 0.00 0.00 0.00 0.00 48.00 0.00 0.00 0.00 ASSIGNMENT AND ASSUMPTION OF DISPOSITION AND DEVELOPMENT AGREEMENT AND CONSENT TO ASSIGNMENT AND ASSUMPTION (Hotel) THIS ASSIGNMENT AND ASSUMPTION OF DISPOSITION AND DEVELOPMENT AGREEMENT ("Assignment") dated as of February _Cp, 2015 (the "Effective Date") is executed by CIM/HUNTNGTON HOTEL, L P , a Delaware limited partnership ("Seller"), in favor of DiamondRock HB Owner, LI.C, a Delaware lanited liability company (`Buyer), with reference to the following facts: A Seller and DiamondRock Acquisition, LLC, a Delaware limited liability company ("Contract Purchasce'), have entered into that certain Purchase and Sale Agreement and Joint Escrow Instructions dated as of November 17, 2014, and the rights of Contract Purchaser thereunder have been assigned to Buyer (as such agreement has been amended and assigned, "Purchase Agreement"), and pursuant to the Purchase Agreement Seller has agreed to sell, and Buyer has agreed to purchase, Seller's fee and leasehold interest in the real property described in Exhibit "A" attached hereto (collectively, the "Hotel Property") B Pursuant to the Purchase Agreement, Seller has agreed to assign to Buyer all of Seller's right, title and interest to that certain Disposition and Development Agreement between Seller and the Successor Agency to the Redevelopment Agency of the City of Huntington Beach (as successor in interest to the Redevelopment Agency of the City of Huntington Beach, the "Successor Agency") dated June 17, 1999, which Disposition and Development Agreement was supplemented by that certain [First) Implementation Agreement dated April 6, 2000; that certain Second Implementation Agreement dated March 5, 2001, that certain Third Implementation Agreement dated October 30, 2002, that certain Fourth Implementation Agreement dated as of September 15, 2003, that certain Fifth Implementation Agreement dated as of July 19, 2004 and that certain Sixth Implementation Agreement dated as of November 3, 2008 (collectively, the "DDA") 69176995vt0 fo1,11,4111-) ,Z/'1rt/— fK C. Pursuant to the DDA, the former Redevelopment Agency of the City of Huntington Beach and Seller entered into that certain Agreement Containing Covenants Affecting Real Property dated as of June 23, 2004 ("Original Covenant Agreement"), which was recorded on June 25, 2004 as Instrument No 2004000580586, as amended by that certain First Amendment to Agreement Containing Covenants Affecting Real Property dated as of November 3, 2008 (the "First Amendment"), which was recorded on November 21, 2008 as Instrument No 2008000544606, and as further amended by that certain Second Amendment to Agreement Containing Covenants Affecting Real Property dated as of the date hereof, which will be recorded concurrently herewith (the "Second Amendment", and together with the Original Covenant Agreement and the First Amendment, the "Covenant Agreement"). THEREFORE, for valuable consideration, Seller and Buyer hereby agree as follows: 1. Assignment. From and after the Effective Date, Seller hereby assigns, sells and transfers to Buyer, on the terms specified in the Purchase Agreement, all of Seller's right, title and interest in and to the DDA and Covenant Agreement relating to the Hotel Property, but excluding the Agency Obligation as defined in the DDA. 2. Assumption. Buyer hereby assumes all of the rights, benefits, burdens of and obligations of Seller under the DDA, Covenant Agreement and Grant Deed (as defined in the DDA) relating to the Hotel Property and relating to the period from and after the Effective Date. 3 Indemnity. Buyer hereby assumes and agrees to pay, keep and perform all of the terms, covenants, conditions, provisions and obligations of the Seller under the DDA, Covenant Agreement and Grant Deed relating to the Hotel Property under or with respect thereto arising or accruing on or after the Effective Date, and agrees to indemnify and hold Seller harmless from and against any claims, costs or liabilities in connection therewith arising or accruing on or after the Effective Date. Seller agrees to pay and perform all of the terms, covenants, conditions and obligations of the Seller under the DDA, Covenant Agreement and Grant Deed relating to the Hotel Property under or with respect to thereto arising or accruing before the Effective Date, and agrees to indemnify and hold Buyer harmless from and against any claims, costs or liabilities in connection therewith arising or accruing prior to the Effective Date. 4. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument. 5. Construction; Headings. All amendments and modifications of, and supplements to, this Assignment must be in writing and executed by Buyer and Seller. This Assignment has been drafted through a joint collaborative effort of the parties, each of which has been represented by competent, qualified, and independent counsel (including counsel licensed to practice law in the State of California), accordingly, since this Assignment and its provisions were the subject of such a joint and collaborative effort, any ambiguity in this Assignment or any of its provisions shall not be construed in favor of or against either of the parties. If any provision of this W Assignment or application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Assignment (including the application of such provision to persons or circumstances other than those to which it is held invalid or unenforceable) shall not be affected thereby, and each provision of this Assignment shall be valid and enforced to the fullest extent permitted by law The headings to sections or paragraphs of this Agreement are for convenient reference only and shall not be used in interpreting this Assignment 6. California Law, This Assignment shall be governed by and interpreted in accordance with the laws of the State of California. 7. AttorneM' Fees. If either party becomes involved in litigation, arbitration, reference to a retired judge or other neutral referee, or other legal process arising out of this Assignment or in connection with any bankruptcy proceeding relating to a party, the court in the litigation or arbitrator, retired judge or other referee in the arbitration or reference, or neutral party in such other legal process, shall award legal expenses (including, but not limited to reasonable attorneys' fees and court costs) to the prevailing party. The award for legal expenses shall not be computed in accordance with any schedule, but shall be as necessary to fully reimburse all reasonable attorneys' fees and other legal expenses actually incurred in good faith, regardless of the size of the judgment, it being the express intention of the parties to fully compensate the prevailing party for all the reasonable attorneys' fees and other legal expenses paid or incurred by it in good faith in connection therewith 8. The principal address of Buyer for purposes of the DDA and Covenant Agreement is as follows. DiamondRock HB Owner, LLC c/o DiamondRock Hospitality 3 Bethesda Metro Center, Suite 1500 Bethesda, MD 20814 Attn: General Counsel With a copy to. DiamondRock HB Owner, LLC c/o DiamondRock Hospitality 3 Bethesda Metro Center, Suite 1500 Bethesda, MD 20814 Attn: Chief Operating Officer [Signature Pages Follow] IN WITNESS WHEREOF, the parties hereto have entered into this Assignment as of the date first set forth above. Seller: CIM/HUNTINGTON HOTEL, L.P., a Delaware limited partnership By CIM Califogjagrban RE Fund GP IV, LLC, general Name: Its: ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ss. COUNTY OF On before me, (here insert name and title of the officer), personally appeared (insert name(s) of signer(s)) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) [Signatures continue on following page) [Signature Page to Assignment and Assumption of Disposition and Development Agreement and Consent to Assignment and Assumption] ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF Los Angeles } On February 4, 2015 before me, Ellen Jo Rose, Notary Public, personally appeared Shaul Kuba, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. �m ELLEN JO ROSE Commission # 2030564 WITNESS my hand and official seal. z ,-� Notary Public - California Los Angeles County M Comm Expires Jun 23, 2017 Signature Ellen Jo Rose, Notary Public Buyer: DIAMONDROCK HB OWNER, LLC, a Delaware limited liability company By:VX-7—'/ �""".� -� Name: J • Tkyi S Its: Director STATE OF MARYLAND ) ss: COUNTY OF MONTGOMERY ) }}'s ingtrume t was acknowledged before me on this 4!day of February, 2015, by_ ( WM -TM , a director of DiamondRock HB Owner, LLC, a Delaware limited liability company, on behalf of Buyer. [Notarial My comer WA f .t.� t Notary Public [Successor Agency Consent Follows] [Signature Page to Assignment and Assumption of Disposition and Development Agreement and Consent to Assignment and Assumption] Consent to Assignment and Assumption by Successor Agency The Successor Agency hereby consents to the assignment and assumption of the DDA and Covenant Agreement by Buyer (this "Successor Aizengy Consent") Each capitalized term used herein shall have the meaning given to such term in the DDA unless otherwise defined herein or in the Assignment to which this Successor Agency Consent is attached. The Successor Agency hereby confirms the following: 1. To the actual knowledge of the Successor Agency, neither Seller nor the Successor Agency is in default or breach of any provision of the DDA or the Covenant Agreement, 2. The DDA and Covenant Agreement are in full force and effect and (together with documents recorded against the Hotel Property) represent the entire agreement between Seller and the Successor Agency relating to the Hotel Property. 3 The DDA and Covenant Agreement have not been amended or modified except as set forth in the definition of "DDA" and "Covenant Agreement" in the Assignment to which this Successor Agency Consent is attached 4 Prior to the date hereof, Seller has not made any Agency Participation Payment and, to the knowledge of the Successor Agency, no Agency Participation Payment is due 5. For purposes of calculating the Agency Participation Payment with respect to the Hotel Property: a. The Operating Commencement Date of the Hotel Property is April 12, 2009 b. Adjusted Project Costs for the Hotel Property as of April 30, 2013 are $79,873,706. c. Buyer shall constitute the "Developer" under Section 701 of the DDA as amended by the Fifth Implementation Agreement for the purpose of calculating Adjusted Gross Revenues for the Hotel Property. Adjusted Gross Revenues for the Hotel Property means the excess of 80% of the Gross Revenues for each Operating Year over Developer's Annual Return. Notwithstanding the preceding sentence, if Developer operates the Hotel (whether through a wholly -owned subsidiary or an entity in which Developer or its affiliate(s) owns at least 50% of the ownership interests), and no ground lease is in place between the Developer (as lessor) and a third party (as lessee), then with respect to Gross Revenue received from the Hotel operations, Adjusted Gross Revenue shall mean an amount equal to the excess of (i) 72% of the net operating income of the Hotel (as reasonably calculated by the Developer's accountants) for each Operating Year over (n) Developer's Annual Return For clarity, Developer may operate the Hotel for purposes of this paragraph through an Agency approved third -party manager. The annual amount of Adjusted Gross Revenues shall be included within the certified statement submitted by Developer pursuant to the DDA and Covenant Agreement. d. Buyer shall not succeed to any interest in the Agency Obligation nor shall the Agency Obligation be applicable to the Hotel Property for purposes of determining the Agency Participation Payment. e An Initial Completion Sale was not consummated by Seller in accordance with the terms of the DDA and the Covenant Agreement, and thus Hotel Sale Proceeds are equal to $0. b. Prior to entering into any franchise agreement and/or changing the flag of the hotel, Buyer shall obtain the Successor Agency's written approval of such hotel franchise agreement on the terms and conditions set forth in the DDA and the Covenant Agreement 7. The Successor Agency acknowledges (i) that any corporate level transactions (e g., mergers, stock splits, reorganizations, etc ) or changes in control affecting the indirect beneficial owner of Buyer or any of its affiliates, which transactions or changes in control affect the indirect ownership of other hotel properties in addition to the Hotel (collectively, T,or.,porate Level Transactions"), shall not be subject to the Successor Agency's approval nor any conditions for transfer set forth in the DDA or the Covenant Agreement other than as set forth in clause (y) below, including but not limited to any such conditions set forth in Section 316 of the DDA and Sections 2(e) and 4 of the Covenant Agreement, provided that (x) such Corporate Level Transactions do not modify Buyer's obligation to continue to comply with all of the terms, conditions and surviving covenants set forth in the DDA and the Covenant Agreement (including, without limitation, the obligation to operate the hotel in accordance with the standard set forth in the DDA and to obtain Agency approval to any change in management agreement or new franchise agreement) and (y) if any Corporate Level Transaction effects a transfer of title to the Hotel, any agreements and documents effectuating such transfer shall be subject to any approval rights of the Executive Director set forth in the DDA and the Covenant Agreement and such Corporate Level Transaction shall require an assignment and assumption agreement pursuant to Section 4(c) of the Covenant Agreement, and (ii) any method of financing of Buyer's interest in the Hotel Property, whether by mortgage, deed of trust or any other form of conveyance (each a "Security Instrument"), is permitted provided that any such Security Instrument is consistent with the provisions of the DDA and the Covenant Agreement. 8. Successor Agency hereby acknowledges any obligations of Buyer under the DDA and the Covenant Agreement shall relate only to the Hotel Property 9 The Baseline Assessment (as defined in the Covenant Agreement) for the Site is $101,000,000. 10. All Acquisitions Costs (as defined in the Covenant Agreement) owed by Seller to the Successor Agency (including any predecessor in interest) have been paid and such payment obligation is satisfied as of the date hereof. 11. To the actual knowledge of the Successor Agency, there are no existing defenses, offsets or counterclaims which the Successor Agency has against Seller for the enforcement of the DDA or the Covenant Agreement. 12. As of the date hereof, the Successor Agency's formal notice address under the DDA and Covenant Agreement is as follows c/o Executive Director 2000 Main Street Huntington Beach, California 92648 With a copy to: City Attorney 2000 Main Street Huntington Beach, California 92648 13. The undersigned and the person(s) executing this Successor Agency Consent on behalf of the undersigned have the power and authority to render this Successor Agency Consent. 14 This Successor Agency Consent shall inure to the benefit of Seller, Buyer and any of Buyer's permitted successors and assigns (provided that this Successor Agency Consent speaks to factual matters only as of the date hereof), and shall be binding upon the Successor Agency and the Successor Agency's successors and assigns. Date: . ATTEST: Successor Agency: Successor Agency to the Redevelopment Agency of the City f Huntington Beach 919,;141 Ex ti e irector AO X#iPRiMWA= FORM Bye -- Michael Gates, CEtV Attorney Exhibit A Legal Description of Hotel Property PARCEL I: An undivided 95.495% interest in and to: Parcel 1: Condominium Units 1 and 2 as said Units are shown and defined in the Condominium Plan Recorded January 16, 2015 as Instrument No. 2015000028146, Official Records. Parcel 2: That Portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as shown on map recorded in Book 870, Pages 47 to 50 inclusive of Miscellaneous Maps, in the Office of the County Recorder of said County shown and defined as Common Area --Hotel Parcel in the Condominium Plan Recorded January 16, 2015 as Instrument No. 2015000028146, Official Records. EXCEPT THEREFROM all that portion of said land lying below a depth of 500 feet measured vertically from the present surface of the ground. ALSO EXCEPTTHEREFROM all that portion of said Lot 1 shown and defined as Condominium Units 1 and 2 and Common Area- Retail/Office Parcel in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. ALSO EXCEPT THEREFROM: All that portion of said Lot 1 shown and defined as Association Property in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. ALSO EXCEPT THEREFROM: Parcels A and B as hereinafter described Parcel A: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Los Angeles, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 410 37' 10" East 124.55 feet; thence North 480 21' 52" West, along said parallel line, 4.70 feet to the point of beginning; thence, along the following 10 courses and distances: 1. North 480 21' S2" West, along said parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet; 3. South 480 21' 52" East, 77.00 feet; 4. South 640 55' 17" East, 19.30 feet; 5. South 480 21'52" East, 30.00 feet; 6. North 410 38' 08" East, 182.00 feet; 7. South 480 21' 52" East, 275.00 feet; 8. South 4110 38' 08" West, 211.58 feet; 9. North 480 21' 52" West, 63.67 feet; 10. South 410 38' 08" West, 124.42 feet to the point of beginning. EXCEPT from said Parcel A, that portion thereof Eying above elevation 25.66 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion thereof lying below elevation 9.00 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion indicated as "Components" as defined in Article 1.18 of the declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records, Parcel B: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 41° 37' 10" East 124.55 feet; thence North 480 21' 52' West, along said parallel line, 4.70 feet; thence along the following 14 courses and distances. 1. North 480 21' 52 feet, along said Parallel line, 336.83 feet, 2. North 410 38' 08" bast, 148.50 feet to the point of beginning; 3. North 481D 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1; 4. North 410 37' 11" East, along said Northwesterly line, 40.75 feet; 5. South 480 21' 52" East, 15.93 feet; 6. North 410 38' 08" East, 2.00 feet; 7. South 480 21' 52" East, 43.83 feet, 8. South 590 00' 03" East, 52.82 feet, 9. South 771D 09' 19" East, 21.11 feet; 10. South 480 21' 25" East, 11.25 feet; 11. South 410 38' 08" West, 57.17 feet; 12. North 480 21' 52" West, 30.00 feet; 13. North 640 55' 17" West, 19.30 feet; 14. North 480 21' 52" West, 77.00 feet to the point of beginning. EXCEPT from said Parcel B, that portion thereof lying above and between an elevation of 38.79 feet on the Northwesterly line of said Parcel 2 and an elevation of 26.33 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion thereof lying below and between an elevation of 30.46 feet on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion indicated as "Components" as defined in Article 1.18 of the Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. PARCEL H. A leasehold estate as created by that certain unrecorded First Restated Hotel, Parcel Ground Lease and Option to Purchase Fee by and between CIM/Huntington, LLC, a California limited liability company (Tenant), and Dolores L. Cracchiolo and Salvator W. Cracchiolo as Trustee for the Declaration of Trust dated June 12, 1979, and Salvator W. Cracchiolo and Barbara F. Cracchiolo, as Trustees of the Cracchiolo Family Trust dated March 28, 2003 (collectively, Landlord), upon and subject to the terms and provisions as therein contained, as disclosed by that certain First Restated Memorandum of Hotel Parcel Ground Lease and Option to Purchase Fee, recorded February 5, 2015 as Instrument No. 2015000057367, Official Records. An undivided 4.505% interest in and to: Parcel 1: Condominium Units 1 and 2 as said Units are shown and defined in the Condominium Plan Recorded January 16, 2015 as Instrument No. 2015000028146, Official Records. Parcel 2: That Portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as shown on map recorded in Book 870, Pages 47 to 50 inclusive of Miscellaneous Maps, in the Office of the County Recorder of said County shown and defined as Common Area — Hotel Parcel in the Condominium Plan Recorded January 16, 2015 as Instrument No. 2015000028146, Official Records. EXCEPT THEREFROM all that portion of said land lying below a depth of 500 feet measured vertically from the present surface of the ground. ALSO EXCEPT THEREFROM all that portion of said Lot 1 shown and defined as Condominium Units 1 and 2 and Common Area- Retail/Office Parcel in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. ALSO EXCEPT THEREFROM: All that portion of said Lot 1 shown and defined as Association Property in the Condominium Plan Recorded February 3, 2015 as Instrument No. 2015000051479, Official Records. ALSO EXCEPT THEREFROM: Parcels A and B as hereinafter described Parcel A: That portion of Lot 1 of Tract No. 16406, in the City of Huntington Beach, County of Los Angeles, State of California, as per map recorded In Hook 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 410 3710" East 124.55 feet; thence North 480 21' 52" West, along said parallel line, 4.70 feet to the point of beginning; thence, along the following 10 courses and distances: 1. North 481 21' 52" West, along said parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet; 3. South 480 21' 52" East, 77.00 feet; 4. South 640 55' 17" East, 19.30 feet; 5. South 480 21'52" East, 30.00 feet; 6. North 4110 38' 08" East, 182.00 feet; 7. South 481 21'52" East, 275.00 feet; 8. South 410 38' 08" West, 211.58 feet; 9. North 48° 21' 52" West, 63.67 feet; 10. South 410 38' 08" West, 124.42 feet to the point of beginning. EXCEPT from said Parcel A, that portion thereof lying above elevation 25.66 feet (NAVD 88). Also EXCEPT from said Parcel A, that portion thereof lying below elevation 9.00 feet (NAVD 88). Also EXCEPT From said Parcel A, that portion indicated as "Components" as defined in Article 1.18 of the declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. Parcel B: That portion of Lot i of Tract No. 16406, in the City of Huntington Beach, County of Orange, State of California, as per map recorded in Book 870 Pages 47 to 50 inclusive of Miscellaneous Maps, records of the Office of the County Recorder of said County, more particularly described as follows: Commencing at the intersection of a line parallel with and distant 2.83 feet Northeasterly, measured at right angles, from the Southwesterly line of said Lot 1 with that certain course along the Southeasterly boundary of said Lot 1, said course being shown as North 41° 37' 10" East 124.55 feet; thence North 480 21' 52' West, along said parallel line, 4.70 feet; thence along the following 14 courses and distances: 1. North 480 21' 52 feet, along said Parallel line, 336.83 feet; 2. North 410 38' 08" East, 148.50 feet to the point of beginning; 3. North 480 21' 52" West, 15.93 feet to a point of the Northwesterly line of said Lot 1; 4. North 410 37' 11" East, along said Northwesterly line, 40.75 feet; S. South 480 21' 52" East, 15.93 feet; 6. North 410 38' 08" East, 2.00 feet; 7. South 480 21' 52" East, 43.83 feet; 8. South 590 00' 03" East, 52.82 feet; 9. South 770 09' 19" East, 21.11 feet; 10. South 480 21' 25" East, 11.25 feet; 11. South 410 38' 08" West, 57.17 feet; 12. North 480 21' 52" West, 30.00 feet; 13. North 640 55' 17" West, 19.30 feet; 14. North 480 21' 52" West, 77.00 feet to the point of beginning. EXCEPT from said Parcel B, that portion thereof lying above and between an elevation of 38.79 feet on the Northwesterly line of said Parcel 2 and an elevation of 26.33 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion thereof lying below and between an elevation of 30.46 feet on the Northwesterly line of said Parcel 2 and an elevation of 18.00 feet on the Southeasterly line of said Parcel 2 (NAVD 88). Also EXCEPT from said Parcel B, that portion indicated as "Components" as defined in Article 1.18 of the Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements, recorded February 3, 2009 Instrument No. 2009-47214, of Official Records. ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA } ss. COUNTY OF 19k9-id6C' } 7*7 On & �.5- before me, L•C5p,Z -, {A &-here insert name and title of the officer}, personally appeared 1GSd�._ (insert name(s) of signers)) who proved to me on the basis of satisfactory evidence to be the person] whose name (j)ar -subscnbed to the within instrument and acknowledged to me tha he she�lley. executed the same in hid Dgheir authorized capacity(iea}, and that by i$ signaturekf on the instrument the person, or the entity upon behalf of which the person,W acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal P L ESPARZA Commission # 2032750 Notary Public - California z z Orange County r 3 a ME Comm. Ex gyres Aus 4, 2017 Signature A.�' ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ss COUNTY OF ) On _ U&,�jZCYCbefore meL. 9 - (here insert name and title of the officer), personally appeared e, Z , Cwt 1, ,��' (insert name of signer(, who proved to me on the basis of satisfactory evidence to be the person#) whose name(W re --subscribed to the within instrument and acknowledged to me that /sh hsy executed the same in his/her/their authorized capacity(ies), and that by er oiir signature* on the instrument the person, or the entity upon behalf of w ich the person acted, executed the instrument I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal. P L ESPARZA Commission # 2032750 Notary Public - Californ€a Orange County M Comm, Ex Tres Avg 4, 2017 Signature A-/ PY C /J % Dept. ID ED 14-45 Page 1 of 3 Meeting Date: 11/17/2014 CITY OF HUNTINGTON BEACH REQUEST FOR. SUCCESSOR AGENCY ACTION MEETING DATE: 11/17/2014 SUBMITTED TO: Chairperson and Successor Agency Members SUBMITTED BY: Fred A. Wilson, Executive Director PREPARED BY: Ken Domer, Assistant City Manager Kellee Fritzal, Deputy Director, Office of Business Development SUBJECT: Adopt Successor Agency Resolution No. 2014-07 Approving Two Proposed Assignments and Agreements Related to The Strand Project Disposition and Development Agreement with CIM/Huntington, LLC, Cypress Equities, and DiamondRock Hospitality Statement of Issue The Successor Agency is requested to approve the assignment of The Strand to Cypress Equities doing business as Capref Acquisitions, LLC, a Texas limited liability company ("Office/Retail Assignee") and The Shorebreak Hotel to DiamondRock Hospitality doing business as DiamondRock Acquisitions, LLC, a Delaware limited liability company ("Hotel Assignee"). Financial Impact: There is no fiscal impact to the Agency. CIM/Huntington is required to pay all aspects of the requested assignment. Recommended Action: A) Adopt Resolution No. 2014-07, "A Resolution of the Successor Agency to the Huntington Beach Redevelopment Agency Approving Two Proposed Assignments and Agreements Related Thereto Pertaining to The Strand Project Disposition and Development Agreement with CIM/Huntington, LLC'; and, B) Authorize the Executive Director to sign all related documents in furtherance of Assignment. Alternative Action(s): Do not approve the Assignments and direct staff accordingly. Analysis: The former redevelopment agency and CIM entered into a Disposition and Development Agreement (DDA) on June 17, 1999. The DDA set forth the development of a hotel with approximately 115 — 130 rooms and 135,000 square feet of commercial space. The Agency contributed both the land and excess project costs. The DDA was subsequently amended with the approval of the First Implementation Agreement on April 6, 2000; the Second Implementation Agreement on March 5, 2001; the Third Implementation on October 30, 2002; the Fourth Implementation Agreement on September 2, 2003; the Fifth Implementation Agreement on July 19, 2004; and the Sixth Implementation Agreement on November 3, 2008. The changes to the project included increased HB - 67- Item 11. - I Dept. ID ED 14-45 Page 2 of 3 Meeting Date: 11/17/2014 hotel rooms (157 rooms), a boutique hotel in lieu of a business hotel, increased parking, land leases, and Agency assistance. As part of the Agreements, CIM was allowed to create commercial condominiums for the site. The Strand currently consists of a separate commercial condominium for the City -owned parking structure. Since The Strand opened in May 2009, CIM has been operating the project as one project. However, CIM notified the Successor Agency of the decision to create two separate condominium plans and sell the property to two separate entities — retail/office and hotel. The retail/office owner will be the designated property manager. Prior to the Successor Agency request to consider the Assignments, Staff and Keyser Marston conducted a financial and project review of the two companies. The review consisted of review of the following: • Financial Statements for a 3 year period; • Information for both companies regarding the experience, expertise, and financial position including a company description and officer bios; • Annual Report and a company overview; • Resumes of all key personnel that will be involved in The Strand; • Similar projects they own/manage (property ownership portfolio); • California experience; • Corporate Organizational Document for the company that will hold The Strand or Shorebreak Hotel; • What hotel flags DiamondRock currently owns/operates; • Who and how hotel properties are managed, whether the Hotel portion is recommending a proposed new hotel flag, and how it meets the minimum qualifications in Agreement. The retail/office proposed assignment would be to Cypress Equities, which was founded in 1995, and has offices in Dallas, Atlanta, San Francisco, New York, and Ft. Lauderdale. Cypress has developed and acquired more than 18 million square feet and their current portfolio is over 10 million square feet with a primary focus on retail and mixed -use properties. Cypress Equities currently owns and operates a premier portfolio of high quality assets valued at more than $1.2 billion, consisting of a variety of retail, office and residential real estate properties. Their current acquisition fund is a $400 Million discretionary equity fund exclusively focused on acquiring value -add retail real estate within the continental US. This fund has already closed on seven acquisitions totally approximately $500 Million since June 2013. There is currently over $200 Million remaining from this fund to allocate to future acquisitions (The Strand being one of these). They own similar projects, such as Market Street Place in San Francisco, CA, consisting of 250,000 square feet in a five -story building with one lower level for retail plus two lower levels for parking; Glendale Marketplace in Glendale, CA, a 153,535-square-foot, open-air retail and entertainment center; Lloyd Center, in Portland, OR , a 1,280,053-square-foot regional shopping center; and Brookwood Village, in Birmingham, AL, a 603,857-square-foot, two -level enclosed mall, a 41,900-square-foot grocery -anchored retail component, plus a nine -story 170,270-square- foot Class "A" office building. The hotel portion is proposed to be assigned to DiamondRock Hospitality Company. DiamondRock operates as a real estate investment trust and owns a portfolio of 27 premium hotels and resorts containing over 11,000 guest rooms in the aggregate, concentrated in key gateway cities and destination resorts throughout North America and the U.S. Virgin Islands. DiamondRock's vision is to be the premier allocator of capital in the lodging industry with the goal of delivering above - average shareholder returns across the full lodging cycle. Item 11. - 2 xs -368- Dept. ID ED 14-45 Page 3 of 3 Meeting Date: 11/17/2014 Each of DiamondRock's hotels and resorts is managed by a third party. Most are operated under a brand owned by one of the leading global lodging brand companies (MarriottTM, StarwoodTM or Hilton TM). DiamondRock regularly analyzes all of the properties in their portfolio, as well as market conditions, to ensure that they are allocating capital to the highest return opportunities. Their ongoing capital allocation activities include renovation projects, marketing non -core assets for sale, and acquisitions. Additionally, DiamondRock's conservative capital structure helps them achieve the optimal balance between value, risk and cost of capital. DiamondRock seeks to further enhance value through efficient corporate overhead, best -in -class corporate governance practices, and openness and transparency in their communications with investors. In recent years, the company has developed a new focus on diversifying the portfolio away from branded hotels. The strategic objective is for the portfolio to go from 64% brand managed to 50%. The past two DiamondRock acquisitions (The Inn at Key West and The Rex Hotel) were each small independent, boutique hotels similar to the Shorebreak. The Rex hotel, located in San Francisco, is currently operated by Commune Hotels, the current manager of the Shorebreak. The strong relationship with Commune Hotels provided another layer of comfort to the potential transaction. DiamondRock's plan is to maintain the Shorebreak name and theme of the hotel that Commune and CIM created. DiamondRock is focused on adding hotels on the West Coast, especially smaller boutique hotels, and for these reasons the Shorebreak is well -suited for the company's refocused strategy. Environmental Status: Not Applicable Strategic Plan Goal: Enhance Economic Development Attachment(s): 1. Resolution No. 2014-07, "A Resolution of the Successor Agency to the Huntington Beach Redevelopment Agency Approving Two Proposed Assignments and Agreements Related Thereto Pertaining to The Strand Project Disposition and Development Agreement with CIM/Huntington, LLC." 2. Lease Termination Agreement. 3. Amendment of Declaration of Covenants, Conditions and Restrictions and Grant of Reciprocal Easements. 4. Second Amendment of Agreement Containing covenants Affecting Real Property. xB -369- Item 11. - 3 �• ,fir , `I RESOLUTION NO. 2014-07 A RESOLUTION OF THE SUCCESSOR AGENCY TO THE CITY OF HUNTINGTON BEACH REDEVELOPMENT AGENCY APPROVING TWO PROPOSED ASSIGNMENTS AND AGREEMENTS RELATED THERETO PERTAINING TO THE STRAND PROJECT DISPOSITION AND DEVELOPMENT AGREEMENT WITH CIM/HUNTINGTON, LLC WHEREAS, the Redevelopment Agency of the City of Huntington Beach ("Redevelopment Agency") was a redevelopment agency in the City of Huntington Beach ("City"), duly created pursuant to the California Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24 of the California Health and Safety Code) ("Redevelopment Law"); and In furtherance of the Redevelopment Law, the Redevelopment Agency entered into that certain Disposition and Development Agreement by and between the Redevelopment Agency and CIM Group, LLC dated June 17, 1999, which Disposition and Development Agreement. was supplemented by that certain [First] Implementation Agreement entered into between the Redevelopment Agency and CIM Group, LLC dated April 6, 2000; that certain Second Implementation Agreement entered into between the Agency and CIM Group, LLC dated March 5, 2001, that certain Third Implementation Agreement entered into between the Agency and CIM/Huntington, LLC, CIM Group, LLC's successor -in -interest, dated October 30, 2002, that certain Fourth Implementation Agreement entered into between the Agency and CIM/Huntington, LLC dated as of September 15, 2003, that certain Fifth Implementation Agreement entered into between the Agency and CIM/Huntington, LLC dated as of July 19, 2004 and certain Sixth Implementation Agreement entered into between the Agency and CIM/Huntington, LLC dated as of November 3, 2008 (collectively, the "DDA"); and The DDA pertains to the development more commonly known as The Strand located in the City of Huntington Beach. The Strand includes retail and office space, a luxury boutique hotel (The Shorebreak Hotel, operated by Joie de Vivre), and a subterranean parking garage owned by the City; and Assembly Bill No. XI 26 (2011-2012 1s' Ex. Sess.) ("AB 26") was signed by the Governor of California on June 28, 2011, making certain changes to the Redevelopment Law and to the California Health and Safety Code ("H&S Code"), including adding Part 1.8 (commencing with Section 34161) ("Part 1.8") and Part 1.85 (commencing with Section 34170) ("Part 1.85") to Division 24 of the H&S Code; and Pursuant to AB 26, as modified by the California Supreme Court on December 29, 2011 by its decision in California Redevelopment Association v. Matosantos, all California redevelopment agencies, including the Redevelopment Agency, were dissolved on February 1, 2012, and successor agencies were designated and vested with the responsibility of paying, perforining and enforcing the enforceable obligations of the former redevelopment agencies and 14-4459 / 114124.doc SA Resolution 2014-07 expeditiously winding down the business and fiscal affairs of the former redevelopment agencies; and „ The City Council of the City elected for the City to serve as the successor agency to the Redevelopment Agency upon the dissolution of the Redevelopment Agency under AB 26 ("Successor Agency"); and On June 27, 2012, the Legislature passed and the Governor signed Assembly Bill No. 1484 ("AB 1484", Chapter 26, Statutes 2012); and AB 26 and AB 1484, as further amended, are collectively referred to herein as the "Dissolution Act". The Successor Agency succeeded to all of the interest of the Redevelopment Agency as successor agency pursuant to the Dissolution Act; and H&S Code Section 34179 of the Dissolution Act establishes a seven (7) member local entity with respect to each successor agency and such entity is titled the "oversight board." The oversight board has been established for the Successor Agency (hereinafter referred to as the "Oversight Board"); and CIM/Huntington, LLC ("Owner") is intending to record two condominium plans that subdivide the office/retail/hotel components of The Strand project into the following air rights parcels: (a) in one condominium plan, a boutique hotel consisting of approximately 144,015 square feet of space (the "Hotel Parcel"); and (b) in a second condominium plan, a condominium unit that includes approximately 41,159 square feet of office improvements (the "Office Parcel") and a condominium unit that includes approximately 74,366 square feet of retail improvements (the "Retail Parcel"); and Owner is proposing to sell its interests in the Office Parcel and Retail Parcel to CAPREF ACQUISITIONS, LLC, a Texas limited liability company ("Office/Retail Assignee"). Owner (or CIM/HUNTINGTON HOTEL, L.P., a California limited partnership, an anticipated successor -in -interest to the Hotel Parcel as permitted by the DDA) is proposing to sell its interests in the Hotel Parcel to DIAMONDROCK ACQUISITION, LLC, a Delaware limited liability company ("Hotel Assignee"); and In connection with the sale of the Office Parcel, Retail Parcel and Hotel Parcel, City staff and Owner have negotiated three proposed agreements; naively, (a) a Termination Agreement by and among Dolores L. Cracchiolo and Salvator W. Cracchiolo, as trustees for the Declaration of Trust dated June 12, 1979, and Salvator W. Cracchiolo and Barbara F. Cracchiolo, as trustees of the Cracchiolo Family Trust dated March 28, 2003 (collectively, "Cracchiolo'), Owner, and the Successor Agency ("Termination Agreement"); (b) an Amendment of Declaration of Covenants, Conditions & Restrictions and Reciprocal Easement Agreement by and among the City, the Successor Agency, Cracchiolo, and Owner ("CC&Rs Amendment"); and (c) a Second Amendment to Agreement Containing Covenants- Affecting Real Property by and between the Successor Agency, CIM/HUNTINGTON HOTEL, L.P., a California limited partnership, and Owner ("Second Amendment to Agreement Containing Covenants"). The Termination Agreement releases the Successor Agency, the Redevelopment Agency, and the City from 14-4459 / 114124.doc SA Resolution No. 2014-07 liability with respect to a Ground Lease and Sublease entered into in connection with the DDA and The Strand project. The CC&Rs Amendment is necessary to make certain clarifications due to the proposed sale of the Office Parcel, Retail Parcel and Hotel Parcel. The Second Amendment to Agreement Containing Covenants was contemplated in the DDA as set forth in Section 3 of the Fifth Implementation Agreement to the DDA to reflect separate ownership of the Hotel Parcel and the balance of the Site (as defined in the DDA). The Termination Agreement, the CC&Rs Amendment, and the Second Amendment to Agreement Containing Covenants may be collectively referred to herein as the "Transfer. Agreements"; and If the Transfer Agreements are . approved by the Successor Agency, the Transfer Agreements shall thereafter be submitted to the Oversight Board for review and approval; and All of the prerequisites with respect to the approval of this Resolution have been met. NOW, THEREFORE, the Successor Agency to the Redevelopment Agency of the City of Huntington Beach does hereby resolve as follows: 1. The Successor Agency hereby finds and determines that the foregoing recitals are true and correct. 2. The Successor Agency hereby approves of an assignment of the Office Parcel and Retail Parcel to Office/Retail Assignee, subject to the approval by the Successor Agency's Executive Director of any entity formation agreements and documents (or changes therein) related to the sale, as well as the agreements and documents effectuating the sale; and further subject to the approval by the Successor Agency's Executive Director of a written assignment and assumption agreement whereby Office/Retail Assignee assumes the rights and obligations transferred by Owner and agrees to keep and perform all covenants, conditions and provisions of the DDA and related agreements which are applicable to the rights acquired. 3. The Successor Agency hereby approves of an assignment of the Hotel Parcel to Hotel Assignee, subject to the approval by the Successor Agency's Executive Director of any entity formation agreements and documents (or changes therein) related to the sale, as well as the agreements and documents effectuating the sale; and further subject to the approval by the Successor Agency's Executive Director of a written assigmment and assumption agreement whereby Office/Retail Assignee assumes the rights and obligations transferred by Owner and agrees to keep and perform all covenants, conditions and provisions of the DDA and related agreements which are applicable to the rights acquired. 4. The Successor Agency hereby approves of the Transfer Agreements in the form submitted to the Successor Agency. 5. _The Executive Director, or .designee, of the Successor Agency is hereby authorized and directed to: (a) provide the Transfer Agreements and proposed assignments to the Oversight Board for review and approval; (b) make non -substantive changes and amendments to the Transfer Agreements deemed necessary and as approved by the Executive Director of the Successor Agency and its legal counsel; and (c) take such other actions and execute such other 14-4459 / 114124.doc SA Resolution No. 2014-07 documents as are necessary to effectuate the intent of this Resolution on behalf of the Successor Agency. 6. The staff of the Successor Agency is hereby authorized to execute and record such documents and instruments and to do any and all other things which they may deem necessary or advisable to effectuate the intent of this Resolution and any such actions previously taken are hereby ratified. 7. The adoption of this Resolution is not intended to and shall not constitute a waiver by the Successor Agency of any constitutional, legal or equitable rights that the Successor Agency may have to challenge, through any administrative or judicial proceedings, the effectiveness and/or legality of all or any portion of the Dissolution Act, any determinations rendered or actions or omissions to act by any public agency or government entity or division in the implementation of the Dissolution Act, and any and all related legal and factual issue, and the Successor Agency expressly reserves any and all rights, privileges, and defenses available under law and equity. 8. If any provision of this Resolution or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The Successor Agency declares that its Board would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution. 9. This Resolution shall take effect upon the date of its adoption. PASSED AND ADOPTED by the Oversight Board of the Successor Agency to the Redevelopment Agency of the City of Huntington Beach at a regular meeting thereof held on the 17th day of November, 2014. REVIEWED AN AD P OVED: I I A PROVED: t Executive Director Deputy Executive Director APPROVED AS TO FORM: 1$0ard Counsel 14-4459 / 114124.doc Successor Agency Res. No. 2014-07 STATE OF CALIFORNIA COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, JOAN L. FLYNN the Clerk of the Successor Agency to the former City of Huntington Beach Redevelopment Agency, Huntington Beach, California, DO HEREBY CERTIFY that the foregoing resolution was duly adopted by The Successor Agency to the Redevelopment Agency of the City of Huntington Beach at a special meeting held on November 17, 2014 and that is was so adopted by the following vote: AYES: Katapodis, Hardy, Shaw, Boardman, Sullivan, Carchio NOES: None ABSENT: Harper ABSTAIN: None. Cler f The Successor Agency to the Redevelopment Agency of the City of Huntington Beach, California ,ATTAU MEN TERMINATION AGREEMENT THIS TERMINATION AGREEMENT (this "Agreement") is entered into as of 2014, by and among Dolores L. Cracchiolo and Salvator W. Cracchiolo, as trustees for the Declaration of Trust dated June 12, 1979, and Salvator W. Cracchiolo and Barbara F. Cracchiolo, as trustees of the Cracchiolo Family Trust dated March 28, 2003 (collectively with their successors and assigns, "Landlord"), CIM/Huntington, LLC, a California limited liability company ("CIM"), and the City of Huntington Beach ("Cjity"). RECITALS A. Landlord, as landlord, and CIM and the Redevelopment Agency of the City of Huntington Beach (the "Agency', and collectively with CIM, "Tenant"), as tenant, entered into that certain lease (the "Original Ground Lease") dated as of March 8, 2000, with respect to certain premises (the "Premises") consisting of Landlord's undivided 4.505% tenancy -in - common interest in certain real property described in Exhibit A to the Original Ground Lease and the Landlord's undivided 4.505% interest in any and all buildings, structures, or other improvements either then or thereafter located on such real property. B. In connection with the Original Ground Lease, a Memorandum of Lease was recorded in the Orange County Recorder's Office on June 21, 2001 as Instrument No. 20010411099 of Official Records (the "Memorandum"), which incorporated by reference the Original Ground Lease. The Memorandum was replaced in its entirety by that certain Amended and Restated Memorandum of Lease that was recorded on September 5, 2005 as Instrument No. 2005-707181 of Official Records (the "First Restated Memorandum"), and the First Restated Memorandum was replaced in its entirety by that certain Second Amended and Restated Memorandum of Lease that was recorded on September 28, 2009 as Instrument No. 2009 511364. C. Tenant subleased the Premises to CIM pursuant to that certain Amended and Restated Subground Lease and Option to Purchase Fee dated as of June, 2005 (as amended, the "Sublease"). D. The City succeeded to the interest of the Agency under the Original Ground Lease and the Sublease. E. Section 35.25 of the Original Ground Lease permits Tenant to subdivide the Property into one or more three-dimensional parcels ("Air Rights Parcels") and contemplates that Landlord and Tenant will replace the Original Ground Lease with new separate ground leases for each of the Air Rights Parcels. F. CIM is recording two condominium plans that subdivide the Property into the following Air Rights Parcels: (a) in one condominium plan, a boutique hotel consisting of approximately 144,015 square feet of space (the "Hotel Parcel"); and (b) in a second condominium plan, a condominium unit that includes approximately 41,159 square feet of office improvements (the "Office Parcel") and a condominium unit that includes approximately 74,366 square feet of retail improvements (the "Retail Parcel"). G. Landlord and CIM are simultaneously herewith entering into (a) that certain First Restated Hotel Parcel Ground Lease with respect to the Landlord's interest in the Hotel Parcel (the "Hotel Parcel Lease"), (a) that certain First Restated Retail Parcel Ground Lease with respect to the Landlord's interest in the Retail Parcel (the "Retail Parcel Lease'), and (c) that certain First Restated Office Parcel Ground Lease with respect to the Landlord's interest in the Office Parcel (the "Office Parcel Lease", and together with the Hotel Parcel Lease and the Retail Parcel Lease, collectively, the "Parcel Leases"). Item 11 . - 8 Termination Agreement (mcf v7).doc HB -374- H. The parties have agreed to enter into this Agreement pursuant to which (a) the Original Ground Lease shall be replaced by the Parcel Leases and the Sublease shall terminate effective as of the commencement date of the Parcel Leases (the "Effective Date"); (b) the City and the Agency shall be released from liability with respect to the Original Ground Lease and the Sublease; and (c) CIM shall be released from liability with respect to the Sublease, each on the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and conditions and the covenants hereinafter contained, and for other consideration hereinafter set forth the receipt and sufficiency of which are hereby acknowledged, Landlord, CIM and City hereby agree as follows: 1. Substitution of Parcel Leases for Original Ground Lease. Landlord, CIM and the City hereby agree that the Original Ground Lease shall be replaced by the Parcel Leases and be of no further force or effect as of the Effective Date. From and after the Effective Date, Tenant shall not have any further rights or obligations under the Original Ground Lease, except those obligations which survive the termination of the Original Ground Lease, which obligations of Tenant are hereby assumed by CIM. For avoidance of doubt, the parties confirm that from and after the execution and delivery of the Parcel Leases, the Original Ground Lease shall be of no further force or effect, and the obligations of each of the tenants under the respective Parcel Lease shall be limited to the obligations of each such tenant under the respective Parcel Lease. Concurrently with the execution of this Agreement, each of the parties shall execute, acknowledge and deliver to CIM the Termination of Memorandum of Ground Lease in the form of Exhibit A attached hereto. 2. Termination of Sublease. CIM and the City hereby agree that the Sublease shall terminate and be of no further force or effect as of the Effective Date, it being the intent of the parties that the term of the Sublease shall expire on the Effective Date in the same manner and with the same effect as if such date were the date set forth in the Sublease for the expiration of the term thereof. Concurrently with the execution of this Agreement, each of Tenant and CIM shall execute, acknowledge and deliver to CIM the Termination of Memorandum of Subground Lease in the form of Exhibit B attached hereto. 3. Release by Landlord. Landlord, on behalf of itself and on behalf of any other person or entity claiming through or under Landlord, does hereby release and forever discharge the Agency, the City and their respective members, managers, directors, officers, employees, partners, shareholders, policyholders, agents (and any such agent's officers and employees), assigns, attorneys, successors, representatives, and all others who may have acted or been claimed to have acted in concert with the Agency or the City (the "City Released Parties"), who are liable or who might be claimed to be liable from any and all claims, charges, complaints, liabilities, obligations, promises, agreements, controversies, damages, demands, actions, causes of action or suits of any kind or nature whatsoever, whether they sound in law, equity, tort or contract which Landlord may have had, now has, or may have against the City Released Parties, or any of them, arising out of any act or omission of the Agency or City in connection with the Original Ground Lease or in any way connected with any and all transactions, occurrences, or other matters relating to the Original Ground Lease. Landlord acknowledges that subsequent to the execution of this Agreement, it may determine that it has incurred a loss, damage or injury related to the releases herein given, but which were unknown or unanticipated at the time of execution of this Agreement, or that it may have had claim(s) or cause(s) of action which were unknown or unanticipated at the time of the execution of this Agreement, and Landlord hereby expressly agrees that the releases herein given shall apply to all such unknown and unanticipated losses, damages, injuries, claims and causes of action. 2 Lease Termination Agreement (mef v7).doe HB -375- Item 11. - 9 In connection herewith, Landlord expressly waives the benefits of Section 1542 of the California Civil Code, which reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS/HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM/HER MUST HAVE MATERIALLY AFFECTED HIS/HER SETTLEMENT WITH THE DEBTOR. Landlord's Initials Landlord acknowledges that it has received the advice of legal counsel and/or has been advised to seek legal counsel with respect to the aforementioned waiver and understands the terms thereof. 4. Release by CIM. CIM, on behalf of itself and on behalf of any other person or entity claiming through or under CIM, does hereby release and forever discharge Tenant and its members, managers, directors, officers, employees, partners, shareholders, policyholders, agents (and any such agent's officers and employees), assigns, attorneys, successors, representatives, and all others who may have acted or been claimed to have acted in concert with Tenant (the "Tenant Released Parties"), who are liable or who might be claimed to be liable from any and all claims, charges, complaints, liabilities, obligations, promises, agreements, controversies, damages, demands, actions, causes of action or suits of any kind or nature whatsoever, whether they sound in law, equity, tort or contract which CIM may have had, now has, or may have against the Tenant Released Parties, or any of them, arising out of any act or omission of Tenant in connection with the Sublease or in any way connected with any and all transactions, occurrences, or other matters relating to the Sublease. CIM acknowledges that subsequent to the execution of this Agreement, it may determine that it has incurred a loss, damage or injury related to the releases herein given, but which were unknown or unanticipated at the time of execution of this Agreement, or that it may have had claim(s) or cause(s) of action which were unknown or unanticipated at the time of the execution of this Agreement, and CIM hereby expressly agrees that the releases herein given shall apply to all such unknown and unanticipated losses, damages, injuries, claims and causes of action. In connection herewith, CIM expressly waives the benefits of Section 1542 of the California Civil Code, which reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS/HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM/HER MUST HAVE MATERIALLY AFFECTED HIS/HER SETTLEMENT WITH THE DEBTOR. CIM's Initials: CIM acknowledges that it has received the advice of legal counsel and/or has been advised to seek legal counsel with respect to the aforementioned waiver and understands the terms thereof. 5. Release by Tenant. Tenant, on behalf of itself and on behalf of any other person or entity claiming through or under Tenant, does hereby release and forever discharge CIM and its members, managers, directors, officers, employees, partners, shareholders, policyholders, agents (and any such agent's officers and employees), assigns, attorneys, successors, representatives, and all others who may have acted or been claimed to have acted in concert with CIM (the "CIM Released Parties"), who are liable or who might be claimed to be liable from any and all claims, charges, complaints, liabilities, obligations, promises, agreements, 3 Lease Termination Agreement (mcf v7).doc Item 11. - 10 xB -376- controversies, damages, demands, actions, causes of action or suits of any kind or nature whatsoever, whether they sound in law, equity, tort or contract which Tenant may have had, now has, or may have against the CIM Released Parties, or any of them, arising out of any act or omission of CIM in connection with the Sublease or in any way connected with any and all transactions, occurrences, or other matters relating to the Sublease. Tenant acknowledges that subsequent to the execution of this Agreement, it may determine that it has incurred a loss, damage or injury related to the releases herein given, but which were unknown or unanticipated at the time of execution of this Agreement, or that it may have had claim(s) or cause(s) of action which were unknown or unanticipated at the time of the execution of this Agreement, and Tenant hereby expressly agrees that the releases herein given shall apply to all such unknown and unanticipated losses, damages, injuries, claims and causes of action. In connection herewith, Tenant expressly waives the benefits of Section 1542 of the California Civil Code, which reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS/HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM/HER MUST HAVE MATERIALLY AFFECTED HIS/HER SETTLEMENT WITH THE DEBTOR. Tenant's Initials: CIM The City Tenant acknowledges that it has received the advice of legal counsel and/or has been advised to seek legal counsel with respect to the aforementioned waiver and understands the terms thereof. 6. Representations of Tenant. Tenant represents and warrants to Landlord that (a) Tenant has not heretofore assigned or sublet all or any portion of its interest in the Original Ground Lease; (b) no other person, firm or entity has any right, title or interest in the Original Ground Lease; (c) Tenant has the full right, legal power and actual authority to enter into this Agreement and to terminate the Original Ground Lease without the consent of any person, firm or entity; and (d) Tenant has the full right, legal power and actual authority to bind Tenant to the terms and conditions hereof. Notwithstanding the termination of the Original Ground Lease and the release of liability provided for herein, the representations and warranties set forth in this Paragraph 3 shall survive the Effective Date and Tenant shall be liable to Landlord for any inaccuracy or any breach thereof. 7. Attorneys' Fees. Should any dispute arise between the parties hereto or their legal representatives, successors and assigns concerning any provision of this Agreement or the rights and duties of any person in relation thereto, the party prevailing in such dispute shall be entitled, in addition to such other relief that may be granted, to recover reasonable attorneys' fees and costs in connection with such dispute. 8. Governing Law. This Agreement shall be governed and construed under the laws of the State of California. 9. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but such counterparts, when taken together, shall constitute one agreement. 10. Binding Effect. This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto and their respective legal representatives, successors and assigns. 4 Lease Termination Agreement (mcf v7).doc xB -377- Item 11. - 11 11. Time of the Essence. Time is of the essence of this Agreement and the provisions contained herein. 12. Further Assurances. The parties hereby agree to execute such further documents or instruments as may be necessary or appropriate to carry out the intention of this Agreement. 13. Voluntary Agreement. The parties have read this Agreement and the releases as contained herein, and on the advice of counsel they have freely and voluntarily entered into this Agreement. 14. Integration Clause/Modification. This Agreement constitutes the entire agreement between the parties and supersedes any and all prior agreements, whether oral or written. This Agreement may not be altered, amended, modified or otherwise changed in any respect whatsoever, except by a writing duly executed by all of the parties affected by such modification or by their authorized representatives. Any modification or waiver of any one provision shall not constitute waiver or modification of any other provision not expressly waived or modified. IN WITNESS WHEREOF, Landlord, CIM and the City have executed this Agreement as of the day and year first above written. CIM: CIM/Huntington, LLC, a California limited liability company By: Name: Title: --Signatures Continued Next Page — Lease Termination Agreement (mcf v7).doc Item 11. - 12 HB -37g- CITY: The City of Huntington Beach By: ATTEST: Agency Clerk REVIEWED AND APPROVED AS TO FORM: gency General Counsel APPROVED AS TO FORM: KANE, BALLMER & BERKMAN By: LANDLORD: Salvator W. Cracchiolo, trustee for the Declaration of Trust dated June 12, 1979 Dolores L. Cracchiolo, trustee for the Declaration of Trust dated June 12, 1979 Barbara F. Cracchiolo, trustee of the Cracchiolo Family Trust dated March 28, 2003 Salvator W. Cracchiolo, trustee of the Cracchiolo Family Trust dated March 28, 2003 6 Lease Termination Agreement (mcf v7).doc Exhibit A Form of Termination of Memorandum of Ground Lease RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Fragner Seifert Pace & Winograd, LLP 601 South Figueroa Street, Suite 2320 Los Angeles, CA 90017 Attn: Matthew C. Fragner (Space Above For Recorder's Use) TERMINATION OF MEMORANDUM OF GROUND LEASE This TERMINATION OF MEMORANDUM OF GROUND LEASE ("Termination") dated as of , 2014 is entered into by and between Dolores L. Cracchiolo and Salvator W. Cracchiolo, as trustees for the Declaration of Trust dated June 12, 1979, and Salvator W. Cracchiolo and Barbara F. Cracchiolo, as trustees of the Cracchiolo Family Trust dated March 28, 2003 (collectively with their successors and assigns, "Landlord"), CIM/Huntington, LLC, a California limited liability company ("CIM"), and the City of Huntington Beach WHEREAS, Landlord as lessor and CIM and City as lessee and entered into an Amended and Restated Ground Lease dated as of (the "Ground Lease"); WHEREAS, in connection with such Ground Lease, the parties executed and recorded a Memorandum of Amended and Restated Ground Lease (the "Memorandum") as Instrument No. 2009 511364 on September 28, 2009 in the Official Records of Orange County; and WHEREAS, the parties wish to evidence the termination of the Memorandum. NOW, THEREFORE, Landlord, CIM and City have caused this Termination to be executed and recorded in the Official Records of Orange County to provide notice that the Ground Lease has terminated and the Memorandum has no further force or effect. 7 Lease Termination Agreement (mcf v7).doc Item 11. - 14 HB -380- ATTEST: Agency Clerk REVIEWED AND APPROVED AS TO FORM: Agency General Counsel APPROVED AS TO FORM: KANE, BALLMER & BERKMAN By: CIM: CIM/Huntington, LLC, a California limited liability company By:_ Name: Title: CITY: The City of Huntington Beach By: 8 LANDLORD: Salvator W. Cracchiolo, trustee for the Declaration of Trust dated June 12, 1979 Dolores L. Cracchiolo, trustee for the Declaration of Trust dated June 12, 1979 Barbara F. Cracchiolo, trustee of the Cracchiolo Family Trust dated March 28, 2003 Salvator W. Cracchiolo, trustee of the Cracchiolo Family Trust dated March 28, 2003 Lease Termination Agreement (mcf v7).doc 9 HB -381- Item 11. - 15 Exhibit B Form of Termination of Memorandum of Subground Lease RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Fragner Seifert Pace & Winograd, LLP 601 South Figueroa Street, Suite 2320 Los Angeles, CA 90017 Attn: Matthew C. Fragner (Space Above For Recorder's Use) TERMINATION OF MEMORANDUM OF SUBGROUND LEASE This TERMINATION OF MEMORANDUM OF SUBGROUND LEASE ("Termination") dated as of , 2014 is entered into by and between CIM/Huntington, LLC, a California limited liability company ("CIM"), and the City of Huntington Beach WHEREAS, CIM and City as Sublessor and CIM as Sublessee entered into an Amended and Restated Subground Lease dated as June, 2005 (the "Subground Lease"); WHEREAS, in connection with such Subground Lease, the parties executed and recorded a Memorandum of Amended and Restated Subground Lease (the "Memorandum") as Instrument No. 2009 511365 on September 28, 2009 in the Official Records of Orange County; and WHEREAS, the parties wish to evidence the termination of the Memorandum. NOW, THEREFORE, CIM and City have caused this Termination to be executed and recorded in the Official Records of Orange County to provide notice that the Subground Lease has terminated and the Memorandum has no further force or effect. 10 Lease Termination Agreement (mef v7).doe Item 11. - 17 HB - 83- ATTEST: Agency Clerk REVIEWED AND APPROVED AS TO FORM: Agency General Counsel APPROVED AS TO FORM: KANE, BALLMER & BERKMAN By: CIM: CIM/Huntington, LLC, a California limited liability company By:_ Name: Title: CITY: The City of Huntington Beach By: 11 Lease Termination Agreement (mcf v7).doc Item 11. - 18 NB -3 84- Al "MENT #3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CIM/Huntington, LLC 6922 Hollywood Blvd., 9ch Floor Los Angeles, CA 90028 Attention: General Counsel AMENDMENT OF DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS AND GRANT OF RECIPROCAL EASEMENTS (CIM-Huntington Beach) HB -387- Item 11. - 21 AMENDMENT OF DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS AND RECIPROCAL EASEMENT AGREEMENT (CIM-Huntington Beach) This Amendment of Declaration of Covenants, Conditions & Restrictions and Reciprocal Easement Agreement ("Amendment") is made and entered into as of the recordation hereof (the "Effective Date"), by the City of Huntington Beach, a municipal corporation ("City"), the Successor Agency to the Redevelopment Agency of the City of Huntington Beach (the "Successor Agency"), Dolores L. Cracchiolo and Salvator W. Cracchiolo, as trustees for the Declaration of Trust dated June 12, 1979, and Salvator W. Cracchiolo and Barbara F. Cracchiolo, as trustees of the Cracchiolo Family Trust dated March 28, 2003 (collectively, "Cracchiolo") and CIM/Huntington LLC, a California limited liability company ("Developer") (collectively, the "Parties"), with respect to real property located in Orange County, California described on Exhibit A attached hereto, comprised of the Parking Parcel, the Retail Parcel and the Hotel Parcel (as defined in the Original Declaration as defined below). RECITALS A. The City, Cracchiolo, Developer and the Redevelopment Agency of the City of Huntington Beach (the "Agency"), the Successor Agency's predecessor in interest, entered into that certain Declaration of Covenants, Conditions & Restrictions and Reciprocal Easement Agreement recorded as Instrument No. 2009000047214 on February 3, 2009 in the Official Records of Orange County, California (the "Original Declaration"). The Parties now desire to amend the Original Declaration in the manner set forth below. Capitalized terms not otherwise defined herein shall have the same definitions as set forth in the Original Declaration. B. The Parties acknowledge that (i) Developer and other Owners are subject to other instruments conferring rights upon Successor Agency or the City and/or obligations on Developer and/or the other Owners, including without limitation the Fifth Street Public Access Easement, the Maintenance License Agreement, the Operating Agreement and the Agreement Containing Covenants Affecting Real Property, and the DDA, and pursuant to Section 12.2 of the Original Declaration, nothing contained herein shall serve to limit the Parties' obligations as contained in and for the terms of such agreements, and (ii) nothing contained in this Declaration shall limit the City's police powers or shall allow Developer or any Owner to fail to comply with any applicable City code or ordinance. C. Immediately after the recordation of this Amendment, Developer is recording two condominium plans relating to the Retail Parcel and the Hotel Parcel. -1- CIM HB CCRs Amendment Item 11. - 22 HB -388- 1. Modifications to Amendments. The following definitions shall replace in their entirety the corresponding definitions contained in the Original Declaration: 1.1 "Manager" means the person or entity responsible pursuant to the terms hereof for maintenance of the Common Areas and performance of all other obligations specifically allocated to the "Manager" hereunder. Manager may employ a person or entity to perform management functions in the Project, and in so doing may assign and delegate to such person or entity all or a portion of Manager's rights and obligations under this Declaration (and, subject to any limitations thereon set forth in Article II below, may include the reasonable costs of compensating any agents, contractors or professional managers engaged to perform such functions in the Common Area Expenses); provided however, that Manager shall remain responsible for the performance of such obligations by such person or entity. The Manager shall initially be Developer or any successor -in -interest to all (but not less than all) of Developer's Interest in the Parcel 1 of the Retail Parcel ("Retail Parcel I"), provided, however, that Retail Parcel 1 Owner's rights and obligations as Manager shall be deemed assigned to the Property Owners Association (or, with the consent of the City, a Condominium Association) upon formation thereof on the terms set forth in Article 13 below. Notwithstanding the foregoing, with respect to the City and the Agency only, Developer and Developer's successor -in -interest to Developer's Interest in Retail Parcel 1 shall remain obligated to perform any obligation of Manager hereunder to the extent not performed by the Property Owner's Association or designated Condominium Association (and the Parties to this Declaration authorize such performance by Developer or Developer's successor -in -interest), provided that any such successive holder of Developer's Interest in Retail Parcel 1 shall be relieved of any liability for such performance upon the transfer of such holder's interest in Retail Parcel 1 and any transferee of such holder's interest shall be deemed to have assumed such obligation from and after the effective date of such transfer. 1.2 "Master Parcel Owner" shall mean the Retail Parcel 1 Owner. Notwithstanding the foregoing, there shall be no voting, consent or approval rights hereunder appurtenant to ownership of the Master Parcel nor shall any person or entity holding title to the Master Parcel by virtue thereof be deemed an "Owner" for purposes of exercising any voting or consent rights appurtenant to ownership of a Parcel hereunder. 1.3 "Parcelization Amendment" shall mean this Amendment. 1.4 "Proportionate Share" means (i) with respect to the Class A Common Area Expenses, the total Floor Area within all buildings within a Parcel (excluding the Master Parcel), divided by the total Floor Area within all buildings within the Project (excluding the Master Parcel), provided that with respect to Class A Common Area Expenses that relate to maintenance, repair or restoration costs, "Proportionate Share" shall be calculated so that the Proportionate Share of the Retail Parcel Owner shall be 51 % and the Proportionate Share of the -2- CIM HB CCRs Amendment HB -389- Item 11. - 23 Hotel Parcel Owner shall be 49%, and (ii) with respect to the Class B Common Area Expenses, the Proportionate Share of the Retail Parcel Owner shall be 5 1 % and the Proportionate Share of the Hotel Parcel Owner shall be 49%." 2. Modification of Section 16.26. Section 16.26 of the Original Declaration shall be deleted and the following substituted in its place: " 16.26 Authority of Successor Agency Executive Director to Act for Successor Ate. Except as otherwise expressly provided in this Declaration, any consent, approval or other instrument described in this Declaration may be granted, given or executed by the Successor Agency Executive Director or designee on behalf of the Successor Agency and the Successor Agency Executive Director or designee shall be authorized to take any other action on behalf of the Successor Agency without the need for further authorization from the Successor Agency; provided, however that, notwithstanding the foregoing, the Successor Agency Executive Director or designee may, in his or her sole discretion, refer to the Successor Agency any item for which the Successor Agency Executive Director or designee has authority to act hereunder." 3. Agreement to Hold Hotel Units by One Owner. Developer hereby covenants, on behalf of itself and all future owners of the individual condominium units within the Hotel Parcel, that all such units shall be owned by the same owner(s) (provided that ownership by tenants -in -common of such units shall not violate the foregoing covenant). 4. Limitation of Amendment. Except as expressly set forth in this Amendment, the Original Declaration shall remain in full force and effect. [signatures on following pages] -3- CIM HB CCRs Amendment Item 11. - 24 HB - 3 9a- IN WITNESS WHEREOF, the Parties hereto have executed this Declaration as of the date first written above. SUCCESSOR AGENCY TO THE CITY OF HUNTINGTON BEACH, a REDEVELOPMENT AGENCY OF THE municipal corporation of the State of CITY OF HUNTINGTON BEACH, a public California body corporate and politic an Executive Director ATTEST: APPROVED AS TO FORM: ty �Attomyy # . /� APPROVED AS TO FORM: By: Kane Ballmer & Berkman Successor Agency Special Counsel INITIATED AND APPROVED: am Deputy Executive Director REVIEWED AND APPROVED: ME Executive Director -4- CIM HB CCRs Amendment A M. Mayor ATTEST: By: City Clerk APPROVED AS TO FORM: By: City Attorney /Dti01,iy INITIATED AND APPROVED: Director of Public Works REVIEWED AND APPROVED: I: City Administrator "Developer" CIM/Huntington, LLC, a California limited liability company "Cracchiolo" CIM HB CCRs Amendment By: Name: Title: -5- Salvator W. Cracchiolo, trustee for the Declaration of Trust dated June 12, 1979 Dolores L. Cracchiolo, trustee for the Declaration of Trust dated June 12, 1979 Barbara F. Cracchiolo, trustee of the Cracchiolo Family Trust dated March 28, 2003 Salvator W. Cracchiolo, trustee of the Cracchiolo Family Trust dated March 28, 2003 Item 11. - 26 HB -392- ACKNOWLEDGEMENTS State of California County of On , before me, , a Notary public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature State of California County of (Seal) On , before me, , a Notary public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) HB -393- Item 11. - 27 State of California County of On , before me, , a Notary public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature State of California County of (Seal) On , before me, , a Notary public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Item 11. - 28 HB -394- State of California County of On , before me, , a Notary public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature State of California County of (Seal) On , before me, , a Notary public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) c HB - 95- Item 11. - 29 State of California County of On , before me, , a Notary public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) Item 11. - 30 xB -396- Exhibit A Legal Description Lease Termination Agreement (mcf v7).doc Item 11. - 16 HB -382- ATTACHMENT #4 OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attention: Successor Agency Executive Director SECOND AMENDMENT TO AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY This SECOND AMENDMENT TO AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY (this "Second Amendment") is made and entered into by and between the SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH (the "Successor Agency"), CIM/HUNTINGTON HOTEL, L.P., a California limited partnership ("Hotel LP") and CIM/HUNTINGTON, LLC, a California limited liability company ("Owner") as of with reference to the following: A. Owner holds fee title to that certain real property described in the legal description attached hereto as Exhibit A (the "Owner Property"), and a leasehold interest in that certain real property described in the legal description attached hereto as Exhibit B ("Leased Premises"). Hotel LP owns that certain real property described in the legal description attached hereto as Exhibit C (the "Hotel Property"), and a leasehold interest in that certain real property described in the legal description attached hereto as Exhibit D ("Hotel Leased Premises"). The City owns the parking areas described on Exhibit E attached hereto (the "Parking Parcel"). The Owner Property, the Leased Premises, the Hotel Property, the Hotel Leased Property and the Parking Parcel are collectively referred to herein as the "Property". A mixed -use hotel, retail and office project (the "Project") has been completed on the Property. B. The Property is subject to the Redevelopment Plan for the Main -Pier Redevelopment Project, which was approved and adopted by Ordinance No. 2578 of the City Council of the City of Huntington Beach, amended by Ordinance No. 2634, and merged with certain other redevelopment projects in the City by the adoption of Ordinance No. 3343 on December 16, 1996 to form the Huntington Beach Redevelopment Project (the "Merged Redevelopment Project"). C. The Property is subject to that certain Disposition and Development Agreement by and between the Successor Agency and Owner dated June 17, 1999, which Disposition and Development Agreement was supplemented by that certain [First] Implementation Agreement Second Amendment to Agreement Containing Covenants v13 1 entered into between the Redevelopment Agency of the City of Huntington Beach (the "Agency") and CIM Group, LLC dated April 6, 2000; that certain Second Implementation Agreement entered into between the Agency and CIM Group, LLC dated March 5, 2001, that certain Third Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated October 30, 2002 that certain Fourth Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated as of September 15, 2003, that certain Fifth Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated as of July 19, 2004 and certain Sixth Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated as of November 3, 2008 (collectively, the "DDA"). The Property is referred to in the DDA as the "Site." All capitalized terms in this Second Amendment shall have the meanings ascribed to them in the DDA unless indicated to the contrary herein. D. Pursuant to the DDA, Agency and Owner entered into that certain Agreement Containing Covenants Affecting Real Property dated as of June 23, 2004 ("Original Covenant Agreement"), which was recorded on June 25, 2004 as Instrument No. 2004000580586 and that certain First Amendment to Agreement Containing Covenants Affecting Real Property dated as of November 3, 2008 (the "First Amendment" and together with the Original Covenant - Agreement, the "Covenant Agreement"), which was recorded on November 21, 2008 as Instrument No. 2008000544606. E. Pursuant to the Fifth Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated as of July 19, 2004, Owner has transferred (or is concurrently with the recordation of this Second Amendment) transferring the Hotel Property to Hotel LP. F. The Successor Agency succeeded to all of the interest of the Agency as successor agency pursuant to the Dissolution Act. "Dissolution Act" as used herein means ABxl 26, making certain changes to the California Community Redevelopment Law and the California Health and Safety Code by adding Part 1.8 (commencing with Section 34161) and Part 1.85 (commencing with Section 34170) ("Part 1.85") to Division 24 of the California Health and Safety Code, as amended by Assembly Bill No. 1484 (Chapter 26, Statutes 2012) which was signed by the Governor of California on June 27, 2012, and as further amended by Assembly Bill No. 1585 which was signed by the Governor of California on September 29, 2012, and as further amended by Senate Bill No. 341 which was signed by the Governor of California on October 13, 2013, and as may be further amended from time to time. G. Prior to Owner's conveyance to Hotel LP of the Hotel Property, Owner has filed two commercial condominium plans against the Owner Property, the Leased Premises, the Hotel Property, and the Hotel Leased Property. One condominium plan was filed on and contains two condominium units that will be used for the operation of a hotel (the "Hotel Condo Plan"). The other condominium plan was filed on and contains two condominium units that will be used for retail and office purposes (the "Retail Condo Plan"). It is anticipated that the condominium units in the Hotel Condo Plan (collectively, the "Hotel Units" and each a "Hotel Unit") and the condominium units in the Retail Condo Plan (collectively, the "Retail/Office Units" and each a "Retail/Office Unit") will all be sold by Hotel Second Amendment to Agreement Containing Covenants v13 2 LP and Owner, respectively, subject to the transfer provisions in, among other applicable agreements, the DDA and the Covenant Agreement, as amended by this Second Amendment. Each of the Hotel Units and the Retail/Office Units may also be referred to herein a "Unit". The fee owner of any Unit shall be referred to herein as a "Unit -Owner," provided that if any Unit is owned by more than one parry as �an undivided interest, the obligations shall be applicable to any holder of an undivided interest of 50% or more of such Unit. H. Owner, Hotel LP and the Successor Agency desire to enter into this Second Amendment to amend the Covenant Agreement so that the obligations imposed on Owner and Hotel LP shall be divided into obligations applicable to each Unit Owner for such Unit Owner's respective Unit and obligations that become-, the obligations of the Responsible Parry (as defined below). NOW, THEREFORE, in consideration of the foregoing, the parties hereby agree as follows: 1. Revisions to Covenant Agreement. 1.1. Construction Covenants. The Construction Covenants have previously been released pursuant to the Release of Construction Covenants recorded on September 10, 2009 as Instrument No. 2009000483454 and the Completion Date has been determined to be 1.2. References to Agenc. All references to the Agency in the Covenant Agreement shall be deemed to refer to the Successor Agency and all references to the Agency Executive Director shall refer to the Successor Agency Executive Director. 1.3. Surviving; Covenants. 1.3.1. Individual Unit Owners' Responsibility and Description of Responsible Party. From and after the effective date of this Second Amendment, each Unit Owner (initially Hotel LP as to the Hotel Units and Owner as the Retail/Office Units) shall be responsible for all covenants contained in this Covenant Agreement with respect to the Unit owned by such Unit Owner. The covenants contained in this Covenant Agreement that are applicable to portions of the Property outside the Units (such as common areas and the Parking Parcel) shall be performed by the "Responsible Party," which shall be the Unit Owner of Parcel 1 of the Retail/Office Units, provided that if all of the Unit Owners unanimously elect to have such covenants performed by one or more property owners' associations for portions of the Property outside the Units (such as common areas but specifically not including the -Parking Parcel), by giving written,notice to the Successor Agency, such designated property owners' association shall be the Responsible Party for the performance of such covenants. 1.3.2. First Paragraph of Section 2. The first sentence of Section 2 shall be deleted and the following substituted in its place: Second Amendment to Agreement Containing Covenants v13 3 "The parties hereby covenant and agree on behalf of themselves and any successors and assigns in the Property or any portion there of or any improvements thereon or any interest therein that such parties and their successors and assigns shall comply with and be bound by the following covenants (hereinafter referred to as the "Surviving Covenants"), provided that upon the transfer by a Unit Owner, the new Unit Owner shall be bound by the Surviving Covenants only as applicable to such Unit Owner's Unit and shall not be liable or responsible for any breach of this Covenant Agreement by any, other party except for the Responsible Party as to the Parking Parcel:..." 1.3.3. Section 2.a. — Surviving Covenants. The first paragraph of Section 2.a. of the Covenant Agreement is hereby deleted in its entirety and replaced with the following: "a. Devote the Property, or cause the Property to be devoted, to use solely in accordance with - the Redevelopment Plan, the Grant Deed, the Agreement Containing Covenants Affecting Real Property (as amended), the DDA, and plans approved by the City of Huntington Beach for hotel uses (with respect to the Hotel Units), retail uses (with respect to the Retail/Office Units), restaurant uses (with respect to the Hotel Units and the Retail/Office Units) and parking uses (with respect to the Parking Parcel), with at least 142 and approximately 157 hotel rooms, and approximately 101,591 net square feet of gross leasable area of retail and restaurant uses, and a public parking facility conforming with City approved plans. In addition to all of the other requirements under this Covenant Agreement, the hotel to be maintained on the Hotel Units shall be a Boutique Hotel having an overall standard of quality equal to or better than the following Joie de Vivre Hotels as of the date of the Sixth Implementation Agreement to the DDA (all of which have at least a four star rating): (i) Harvest Inn located in St. Helena, California; (ii) Hotel Kabuki located in San Francisco, California; (iii) Hotel Los Gatos located in Los Gatos, California; (iv) Hotel Montgomery located in San Jose, California; and (v) Hotel Vitale located in San Francisco, California, and the retail and restaurant uses to be maintained on the Property shall be nationally or regionally recognizable and reputable retailers or restaurants of the nature and quality customarily included in retail/restaurant centers meeting the requirements and restrictions of the Second Revised Scope of Development (Second Revised Attachment No. 4), and meeting the following requirements and restrictions:" 1.3.4 Sections 2.h. and 2.i. — Surviving Covenants. Sections 2.h. and 2.i. of the Covenant Agreement are hereby deleted in their entirety and replaced with the following: "h. There shall be no discrimination against or segregation of any person, or group of persons, on account of race, religion, creed, color, national origin, sex, sexual orientation, disability, marital status, age or any other protected classification in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Owner or Hotel LP for themselves or any person claiming under or through them establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. Second Amendment to Agreement Containing Covenants v13 11 i. Each Unit Owner shall refrain from restricting the rental, sale or lease of the property on the basis of sex, sexual orientation, marital status, race, color, creed, religion, ancestry or national origin of any person. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (i) In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land." (ii) In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased. (iii) In contracts: "There shall be no discrimination against or segregation of any person or group of persons, on account of -any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, Second Amendment to Agreement Containing Covenants v13 5 occupancy, tenure, or enjoyment of the land, nor shall the transferee itself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees of the land." " 1.3.5 Sections 2.o., 2.p., 2.Q. 2.r. and 2.s. — Surviving Covenants. Sections 2.o., 2.p., 2.q., 2.r., and 2.s. shall be deleted in their entirety and replaced with the following: "o. Use the Hotel Units only for a Boutique Hotel and for no other use. P. As a Responsible Parry obligation, maintain, repair and operate the existing public parking facility located beneath the Property, including the twenty-five (25) additional parking spaces above and beyond the four hundred eleven (411) parking spaces required by the City to be located in the public parking facility in connection with the development of the Property, for a total of four hundred thirty-six (436) parking spaces in the public parking facility. Any changes to the size (e.g., tandem and/or compact) and locations within the public parking facility of the twenty-five (25) additional parking spaces shall be pre - approved in writing by the City Planning Department from time to time. The maintenance (including repair, restoration and reconstruction) and operation of the twenty-five (25) additional parking spaces shall be in accordance with this Covenant Agreement, the Parking Management Plan approved by the City, the covenants, conditions and restrictions and reciprocal easement agreement and operating agreement to be entered into and recorded against the Site in accordance with the Conditions of Approval and the DDA, and plans approved by the City of Huntington Beach. q. As a Responsible Parry obligation, pay, on behalf of City and Successor Agency, any and all amounts owed to Abdelmuti Development Company ("Abdelmuti") and James A. Lane and Victoria Jean Lane, as Trustees of the James A. Lane and Victoria Jean Lane 1197 Trust, due to any increase in the cost of annual public parking passes that exceed the Threshold Cost Increase (as defined in the "Amendment to OPA") pursuant to paragraph 3 of the Fourth Amendment to Owner Participation Agreement dated February 3, 2003 between Agency and Abdelmuti (the "Amendment to OPA"), and to defend, protect, indemnify and hold harmless the City and the Agency and their respective officers, agents, elected and appointed officials, employees and volunteers free and harmless therefrom. r. Owner has previously entered into a hotel management agreement with Joie De Vivre Hospitality, Inc. which was approved in writing by the Agency (the "Original Management Agreement"). Prior to the expiration or termination of the Original Management Agreement (and any successor hotel management agreement(s)), Hotel Unit Owners shall obtain the Successor Agency's written approval of a new hotel management agreement which shall become effective Second Amendment to Agreement Containing Covenants v13 131 concurrently with the expiration or sooner termination of the hotel management agreement which it replaces. Each such hotel management agreement shall be with a manager determined by the Successor Agency to have not less than eight (8) years of experience in the successful operation of first quality hotels comparable to the hotel located on the Hotel Property. Approvals required of the Successor Agency under this Section 2.r. shall follow and be limited by the following procedures: Within twenty (20) business days after receipt of Hotel Unit Owners' request for approval; the Successor Agency shall respond in writing by stating what further information, if any, the Successor Agency reasonably requires in order to determine whether or not to approve the agreement. Hotel Unit Owners shall promptly furnish to Successor Agency such further information as may be reasonably requested. Hotel Unit Owners' request for approval shall be deemed complete twenty (20) business days after Successor Agency's receipt thereof, if no timely response requesting further information is delivered to Hotel Unit Owners, or, if such a timely response requesting further information is received, on the date that Hotel Unit Owners deliver such additional information to Successor Agency, provided that Hotel Unit Owners' additional information is responsive to Successor Agency's request. Successor Agency shall approve or disapprove the matter within thirty (30) business days after Hotel Unit Owners' request for such approval is accepted as complete or is deemed complete. Approval will not be unreasonably withheld if Hotel Unit Owners demonstrate that the proposed management agreement will provide capable, competent and experienced operation of hotels similar in quality, size and type as required to be maintained on the Property pursuant to the DDA and this Covenant Agreement. If Successor Agency shall disapprove a hotel operator, Successor Agency shall do so by Written notice to Hotel Unit Owners stating the reasons for such disapproval. S. At the time Owner entered into the Original Management Agreement, the requirement for a hotel franchise agreement was waived. Prior to entering into any franchise agreement or changing the flag of the hotel, Hotel Unit Owners shall obtain the Successor Agency's written approval of such hotel franchise agreement (the "Original Franchise Agreement") and/or new flag of the hotel using the same approval procedures as are set forth in Section 2.r. herein above for approval of the hotel management agreement. Any franchise agreement or hotel flag shall provide for the operation of a hotel meeting the size, level of quality and other requirements and restrictions set forth herein and shall be with a franchisor determined by the Successor Agency to be comparable to, or of higher quality than, the franchisor under the Original Franchise Agreement. Prior to the expiration or termination of the Original Franchise Agreement (and any successor hotel franchise agreement(s)), Hotel Unit Owners shall obtain the Successor Agency's written approval (pursuant to said approval procedures) of a new hotel franchise agreement which shall become effective concurrently with the Second Amendment to Agreement Containing Covenants v13 7 expiration or sooner termination of the hotel franchise agreement which it replaces." 1.3.6 Section 4—Transfer Restrictions. Section 4 of the Covenant Agreement shall be deleted in its entirety and the following substituted in its place: "Transfer Restrictions. Owner and Hotel LP recognize that: Development of the Property is important to the general welfare of the community; and Substantial financing and other public aids have been made available by law and by the government for the purpose of making redevelopment possible; and The qualifications and identity of Owner, Hotel LP and each Unit Owner are of particular concern to the community and Successor Agency. Accordingly, Owner, Hotel LP and each Unit Owner agree to comply with the provisions 'of this Covenant Agreement relating to Transfer. (a) For the reasons set forth above in this Paragraph 4, neither Owner, Hotel LP nor Unit Owner shall assign this Covenant Agreement or sell the Property, any Unit or any portion thereof, nor lease nor make any total or partial conveyance or transfer in any mode or form of all or any part of the Property or Unit or the improvements thereon, or any interest therein, nor shall there be any change in the identity of Owner, Hotel LP or Unit Owner or change in the ownership of Owner, Hotel LP or Unit Owner or in the relative proportions thereof, or with respect to the identity of the parties in control of Owner, Hotel LP or Unit Owner or the degree thereof, by any method or means (other than such changes occasioned by the death or incapacity of any individual), (collectively, "Transfer"), without the prior written approval of Successor Agency, which approval shall not be unreasonably withheld or delayed if the proposed Transferee (as defined hereinbelow) is determined by the Successor Agency to have qualifications equal to or better than the original Owner as of the date of Original Covenant Agreement in all material respects, including but not limited to (a) financial strength, (b) experience in the successful operation, management and, marketing of hotels, restaurants, and retail improvements, (c) character and reputation, and (d) the ability to perform all of the agreements, undertakings, and covenants of this Covenant Agreement (as amended), the Grant Deed, and all other agreements entered into by Owner, Hotel LP .or Unit Owner which relate to the management, operation, maintenance, and restoration of the Property or Unit and of the improvements thereon. Owner, Hotel LP or Unit Owner (as applicable) shall promptly notify Successor Agency of any and all changes whatsoever in the identity of the parties in ownership or control of Owner, Hotel LP or Unit Owner or the degree thereof, of which it or any of its officers have been notified or otherwise have knowledge or information. Any entity formation agreements and documents (or changes therein) related to a Transfer, as well as the agreements and documents effectuating any Transfer, shall be subject to the approval of Successor Agency's Executive Director in connection with its approval of the Transfer. Second Amendment to Agreement Containing Covenants v13 (b) To assist Successor Agency in determining whether or not the proposed Transferee is so qualified, the requesting Owner, Hotel LP or Unit Owner shall furnish to Successor Agency at no expense to Successor Agency, prior to that Transfer, detailed and complete financial statements of the proposed Transferee, audited by a certified public accountant reasonably satisfactory to Successor Agency, together with detailed and complete information about the business of the proposed Transferee, including its experience in developing and operating improvements of the type to be constructed on the Property, the use to be made of the Property and the improvements thereon by the proposed Transferee, projections by the proposed Transferee of the sources of funds to be used to pay any indebtedness that the proposed Transferee will assume or take subject to, or agree to pay, in connection with the Transfer, and other claims on and requirements for those funds, together with any other information Successor Agency may reasonably require to assist Successor Agency in determining whether or not the proposed Transferee is so qualified. To the greatest extent permitted by law, if Owner, Hotel LP or such Transferee provides Successor Agency with any proprietary financial information relating to a proposed Transferee, Successor Agency shall not, without Owner's, Hotel LP's or Unit Owner's (as applicable) prior written consent, disclose or make any such financial information available to the public. (c) Approval by Successor Agency of any Transfer shall be conditioned upon such assignee, conveyee or transferee (collectively "Transferee") agreeing, in writing, to assume the rights and obligations thereby transferred and to keep and perform all covenants, conditions and provisions of this Covenant Agreement (as amended) and the Grant Deed which are applicable to the rights acquired. (d) The limitations on Transfer contained in this Paragraph 4 shall not be deemed to apply to or prevent, nor shall Successor Agency's approval be required under this Paragraph 4 in connection with, the granting of any security interest expressly permitted under this Covenant Agreement (as amended); nor the exercise by any mortgagee of its right to foreclose its mortgage by power of sale or judicial foreclosure; nor any Transfer of an interest by a mortgagee having acquired Owner's interest in the Property or Hotel LP's interest in the Property or a Unit Owner's interest in a Unitas a result of its rights under the mortgage, or by any successor to the mortgagee whose interest shall have been acquired by, through or under any mortgage or shall have been derived immediately from any holder thereof. Notwithstanding the foregoing provisions of this paragraph (d), the limitations on Transfer contained in this Paragraph 4 shall apply to any mortgagee which acquires its interest in the Property or the improvements thereon other than by the exercise of its rights pursuant to the mortgage or deed in lieu of foreclosure. (e) Any purported Transfer shall be null and void unless it complies with the terms of this Paragraph. (f) Each Unit Owner shall only Transfer each Unit Owner's entire interest in the Unit and the Improvements thereon as a whole and shall not re -subdivide the Property or the Unit or the improvements thereon beyond the subdivision existing as of the date of the recordation of the Second Amendment to this Covenant Agreement without the prior written approval of Successor Agency, which Successor Agency may grant or withhold in its discretion; Second Amendment to Agreement Containing Covenants v13 I provided, however, the two Units in the Hotel Condo Plan shall at all times be owned by the same Owner and shall not be financed, conveyed, hypothecated or transferred separately, (g) All costs incurred by Successor Agency to review any Transfer proposed by Owner, Hotel LP or a Unit Owner as reasonably necessary to close any Transfer shall be paid by the requesting party. With respect to each Transfer, the requesting party shall deliver a retainer to. Successor Agency in the sum of Five Thousand Dollars ($5,000), to be applied to the payment of Successor Agency's costs. The administrative costs of Successor Agency shall be charged at the actual cost thereof not to exceed an hourly rate of Fifty Dollars ($50.00). The costs of Successor Agency for consultants or legal services required for providing such assistance shall be the actual sums billed to Successor Agency for such consulting or legal services. All such costs in excess of Five Thousand Dollars ($5,000) shall be paid within ten (10) days after written request therefor by Successor Agency. if such costs incurred by Successor Agency for a Transfer equal less than Five Thousand Dollars ($5,000), the balance shall be refunded promptly following the closing. (h) With respect to the leasing of space for occupancy, Owner or a Unit Owner shall not be required to submit the documentation otherwise required for a Transfer by subparagraph (b), nor the assignment and assumption agreement otherwise required by subparagraph (c), nor pay the costs referred to in subparagraph (g); provided, however, that such lease shall contain appropriate provisions conforming the use and operation of the premises to the covenants of the Grant Deed and this Covenant Agreement (as amended), and further provided, that such tenant is a first quality nationally or regionally recognizable and reputable retailer or restaurant of the nature and quality customarily included in retail/restaurant centers meeting the requirements and restrictions of this Covenant Agreement (as amended)." 1.3.7 Section 5—Agency Participation Payment. Each Unit Owner shall calculate the Agency Participation Payment with respect to such Unit Owner's Unit and pay any Agency Participation Payment, subject to the following: (a) The current balance of the Project Cost for each Unit as of April 30, 2013 (including all accrued Developer's Annual Return as of such date) is: Retail/Office Units: Parcel 1: $54,253,852 Parcel 2: $26,980,450 Hotel Units (to be calculated as one Unit): $79,873,706 (b) Each Unit Owner shall be responsible for complying with the reporting and payment obligations for such Unit Owner's Unit as described in Covenant Agreement, provided that the Hotel Units shall be calculated and reported together by the Unit Owner of the Hotel Units. Second Amendment to Agreement Containing Covenants v13 10 2. Covenant to Hold Hotel Units Together. The two Units in the Hotel Condo Plan shall at all times be owned by the same Owner and shall not be financed, conveyed, hypothecated or transferred separately. 3. Release and Covenant Not to Sue. Owner and Hotel LP for themselves, and on behalf of each and all of their respective members, partners, employees, agents, attorneys, successors and assigns hereby fully, absolutely and irrevocably waives, releases, remises, acquits and forever discharges Successor Agency and City of Huntington Beach . and each of their respective members, commissioners, employees, partners, shareholders, principals, agents, attorneys, successors and assigns from any and all claims, rights, demands, suits, awards, judgments, damages, actions, causes of action, lawsuits, costs, obligations, liabilities, defaults and duties of every kind and nature, known or unknown, existing or future, suspected or unsuspected, asserted or unasserted, fixed or contingent, at law or in equity arising out of or relating in any way to any of the following events: (a) Successor Agency's Oversight Board and/or the California Department of Finance asserts jurisdiction and/or the right to approve or disapprove this Second Amendment or threatens to assert jurisdiction and/or the right to approve or disapprove this Second Amendment; (b) Successor Agency's Oversight Board and/or the California Department of Finance disapproves or threatens to disapprove this Second Amendment or determines or threatens to determine that this Second Amendment is invalid (or any similar disapproval/determination); (c) Successor Agency's Oversight Board and/or the California Department of Finance determines or threatens to determine that the DDA or any term(s) therein or any parts thereof is/are no longer an "enforceable obligation(s)" under the Dissolution Act due in any way to the Successor Agency approving or entering into this Second Amendment and/or implementation of this Second Amendment (or any similar determination); (d) Any third party initiates or threatens to initiate any litigation or administrative proceeding or action due in any way to Successor Agency approving or entering into this Second Amendment and/or implementation of this Second Amendment; and/or (e) Successor Agency's Oversight Board and/or the California Department of Finance determines or threatens to determine that any amounts listed on any ROPS pertaining to the DDA should be reduced or disapproved in whole or in part due in any way to the Successor Agency approving or entering into this Second Amendment and/or implementation of this Second Amendment (or any similar disapproval/determination),, The events in Sections 3(a) through 3(e) above may each be referred to herein as a "Challenge". Owner and Hotel LP for themselves, and on behalf of each and all of their respective members, partners, employees, agents, attorneys, successors and assigns hereby agree that Owner and Hotel LP and each and all of their respective members, partners, employees, agents, attorneys, successors and assigns shall not initiate, institute, maintain or prosecute in any manner Second Amendment to Agreement Containing Covenants v13 11 any suit, action, or other proceeding, or voluntarily aid in the initiation, institution, maintenance or prosecution of any claim or legal action, state or federal, in law or in equity, against Successor Agency or City of Huntington Beach, or any of their respective members, commissioners, employees, partners, shareholders, principals, agents, attorneys, successors and assigns with respect to any matter, cause or thing whatsoever arising out of or relating in any way to any Challenge. In this regard, and not by way of limitation of the foregoing, Owner and Hotel LP each acknowledge that it has been represented by its own legal counsel with respect to the subject matter of this Second Amendment and the negotiation and preparation.of same, that it has not relied upon any representation or warranty of Successor Agency or the City of Huntington Beach with respect thereto or the validity or enforceability of this Second Amendment, and in particular that neither Successor Agency nor the City of Huntington Beach has made and is not making any representation or warranty to Owner or Hotel LP with respect to Successor Agency's authority to approve, enter into, and/or perform obligations under this Second Amendment under applicable provisions of the Dissolution Act or otherwise or with respect to Successor Agency's authority to do so without seeking and obtaining the approvals of Successor Agency's Oversight Board and/or the California Department of Finance, and that Owner and Hotel LP assume the full risk with respect thereto, including, without limitation, in the event a Challenge occurs. In this regard, Owner and Hotel LP forever and irrevocably each waive the protections of California Civil Code Section 1542, entitled "General release; extent," and which provides that "[a] general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Notwithstanding the foregoing, however, nothing herein is intended or shall be interpreted as a release, waiver, or covenant not to sue arising out of any actual or alleged default or breach by Successor Agency in performing its obligations under this Second Amendment. 4. Indemnity. Owner and Hotel LP each covenant to indemnify, defend, and hold harmless Successor Agency and the City of Huntington Beach and each of their respective members, commissioners, employees, partners, shareholders, principals, agents, attorneys, successors and assigns from and against any and all loss, liability, damage, claim, cost and expense (including reasonable attorneys' fees, court and litigation costs and fees of expert witnesses) arising out of or relating in any way to any Challenge. Without limiting the foregoing, and as a part of the foregoing indemnity and hold harmless, in the event of a Challenge described in Section 3 (e), Successor Agency agrees, at no cost to Successor Agency or the City of Huntington Beach, to participate in whatever administrative appeal or meet -and -confer process may be available under applicable provisions of the Dissolution Act, including, without limitation, Health & Safety Code Section 34177(m). As used herein, the phrase "at no cost to Successor Agency or the City of Huntington Beach" shall mean that Owner and Hotel LP shall be jointly responsible and liable for promptly paying or reimbursing Successor Agency and City of Huntington Beach for all of Successor Agency's and City of Huntington Beach's actual and reasonable costs and expenses, costs and expenses Second Amendment to Agreement Containing Covenants v13 12 related to Successor Agency's and City of Huntington Beach's consultants or legal counsel, and any other costs and expenses (e.g., travel costs) incurred with respect to such participation until the date the matter is finally resolved, all as reasonably determined by the Successor Agency Executive Director. 5. Further Revisions. Any provisions of the Covenant Agreement which conflict with the intent of this Second Amendment shall be deemed revised in accordance with this Second Amendment. Nothing in this Second Amendment is intended to or limits in any way any general provision in the Covenant Agreement that may pertain to Owner's or Hotel LP's or Unit Owner's obligations thereunder. 6. Binding on Successors and Assigns. This Second Amendment shall be binding upon and inure to the benefit of the successors, assignees, personal representatives, heirs and legatees of the parties hereto. 7. DDA and Covenant Agreement in Full Force and Effect. Except as otherwise modified herein, the terms and conditions of the Covenant Agreement shall remain unmodified and in full force and effect. In the event of any conflict between the terms of this Second Amendment and the Covenant Agreement, the terms of this Second Amendment shall control. It is the intention of the parties that this Second Amendment and each provision hereof be interpreted so as not to increase the obligations of the Successor Agency under the DDA and Covenant Agreement or to cause the Successor Agency to take any action described in Section 34180 of the California Health and Safety Code. In the event that for any reason this Second Amendment is determined to be denied, disapproved, invalid or unenforceable by a determination or ruling by any court or administrative agency or body, including, without limitation, Successor Agency's Oversight Board, the California Department of Finance, or the State Controller's Office, or if the California Department of Finance determines that the DDA and/or the Successor Agency's obligations thereunder is/are not an "enforceable obligation[s]" as defined in the Dissolution Act as a result of approving, entering into and/or performing obligations under this Second Amendment nothing herein shall be deemed to modify or terminate the DDA and Covenant Agreement as currently written, the same shall survive and shall be enforceable in accordance with and subject to the terms and conditions set forth therein, and Owner, Hotel LP and each Unit Owner shall be bound by the terms, covenants and restrictions thereof. 8. Further Assurances. The parties agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Second Amendment and the DDA. 9. Date of this Second Amendment. The effective date of this Second Amendment shall be the date upon which the Successor Agency has executed this Second Amendment. 10. Counterparts. This Second Amendment may be executed by each party on a separate signature page, and when the executed signature pages are combined with the balance of this Second Amendment, it shall constitute one single instrument. Second Amendment to Agreement Containing Covenants v13 13 11. Authority of Successor Agency Executive Director to Act for Successor Agency. Except as otherwise expressly provided in this Second Amendment, any consent, approval or other instrument described in this Second Amendment or the Covenant Agreement (including without limitation approvals of Transfers, hotel franchise agreements, hotel management agreements or any other matter) may be granted, given or executed by the Successor Agency Executive Director or designee on behalf of the Successor Agency and the Successor Agency Executive Director or designee shall be authorized to take any other action on behalf of the Successor Agency without the need for further authorization from the Successor Agency; provided, however that, notwithstanding the foregoing, the Successor Agency Executive Director or designee may, in his or her sole discretion, refer to the Successor Agency any item for which the Successor Agency Executive Director or designee has authority to act hereunder. [signatures on following pages] [remainder of page left intentionally blank] Second Amendment to Agreement Containing Covenants v 13 14 Successor Agency: Successor Agency to the Redevelopment Agency of the City of Huntington Beach Date: Executive Director ATTEST: REVIEWED AND APPROVED AS TO FORM: APPROVED AS TO FORM: Kane, Ballmer & Berkman [signatures continue on following page] Second Amendment to Agreement Containing Covenants v 13 15 Date: Date: Owner: CIM/Huntington, LLC, a California limited liability company By: _ Name: Title: Hotel LP: CIM/Huntington Hotel, LP, a California limited partnership By CIM California Urban RE Fund IV, LLC Its general partner , By: _ Name: Title: Second Amendment to Agreement Containing Covenants v13 16 State of California County of On before me, a Notary Public in and for said State, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature State of California County of (Seal) On before me, a Notary Public in and for said State, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) State of California County of On before me, a Notary Public in and for said State, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) EXHIBIT A OWNER PROPERTY [behind this page] EXHIBIT B LEASED PREMISES EXHIBIT C HOTEL PROPERTY. EXHIBIT D HOTEL LEASED PROPERTY EXHIBIT E PARKING PARCEL .A4 one CITY OF HUNTINGTON B Interdepartmentaloij TO: Honorable Mayor and Members of the City Council VIA: Fred A. Wilson, City Manager FROM: Ken Domer, Assistant City Manager Kellee Fritzal, Deputy Director DATE: November 17, 2014 SUBJECT: Supplemental Communication — Item #11: Approval of Assignment and Agreements related to the sale of The Strand Project from CIM/Huntington to Cypress Equities and DiamondRock Hospitality Attached is a revised Second Amendment to Agreement Containing Covenants Affecting Real Properties. The revision includes language allowing the Successor Agency Executive Director approval on future assignments or transfers that are permitted through the Development and Disposition Agreement (Implementation Agreements) or Covenant Agreement. Based on discussions with DiamondRock, this change is requested and recommended by Staff in order to expedite future assignments as permitted through the Implementation Agreements. DiamondRock is a publicly traded company, and while their corporate structure may be modified in the future necessitating such an assignment, it would not impact their hotel portfolio and therefore is considered a minor delegation of authorization. Attachment Meeting Late: // --- / % - ,Zj/V Agenda Item No. Supplemental Communication Strand.docx OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attention: Successor Agency Executive Director SECOND AMENDMENT TO AGREEMENT CONTAINING COVENANTS AFFECTING REAL, PROPERTY This SECOND AMENDMENT TO AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY (this "Second Amendment") is made and entered into by and between the SUCCESSOR AGENCY TO THEWDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH (the "Successor Agency"), CIM/HUNTINGTON HOTEL, L.P., a California limited partnership ("Hotel LP") and CIM/HUNTINGTON, LLC, a California limited liability company ("Owner") as of with reference to the following: A. Owner holds fee titleto that certain real property described in the legal description attached hereto as Exhibiy A (the "Owner Property"), and a leasehold interest in that certain real property described in atlie legal description attached hereto as Exhibit B ("Leased Premises"). Hotel LP owns that certain real property described in the legal description attached hereto as Exhibit C (the "Hotel (Property"), and a leasehold interest in that certain real property described in the legal descrip4n attached hereto as Exhibit D ("Hotel Leased Premises"). The City owns the parking areas,described on Exhibit E attached hereto (the "Parking Parcel"). The Owner Property, the Leased Premises, the Hotel Property, the Hotel Leased Property and the Parking Parcel are collect * kely referred to herein as the "Property". A mixed -use hotel, retail and office project (the "Project") has been completed on the Property. B. The Property is subject to the Redevelopment Plan for the Main -Pier Redevelopment Project, which was approved and adopted by Ordinance No. 2578 of the City Council of the Ciy of Huntington Beach, amended by Ordinance No. 2634, and merged with certain other redevelopment projects in the City by the adoption of Ordinance No. 3343 on December 16, /1996 to form the Huntington Beach Redevelopment Project (the "Merged Redevelopmen Project"). C. ,/ The Property is subject to that certain Disposition and Development Agreement by and between the Successor Agency and Owner dated June 17, 1999, which Disposition and DevelopLnt Agreement was supplemented by that certain [First] Implementation Agreement r Second Amendment to Agreement Containing Covenants v13 1 Item 11. - 32 HB -398- entered into between the Redevelopment Agency of the City of Huntington Beach (the "Agency") and CIM Group, LLC dated April 6, 2000; that certain Second Implementation Agreement entered into between the Agency and CIM Group, LLC dated March 5, 2001, that certain Third Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated October 30, 2002, that certain Fourth Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated as of September 15, 2003, that certain Fifth Implementation Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated as of July 19, 2004 and /certain Sixth Implementation Agreement entered into between the Agency and CIM/HUN I'NGTON, LLC dated as of November 3, 2008 (collectively, the "DDA"). The Property is refe0ed to in the DDA as the "Site." All capitalized terms in this Second Amendment shall have the meanings ascribed to them in the DDA unless indicated to the contrary herein. D. Pursuant to the DDA, Agency and Owner entered �irfto that certain Agreement Containing Covenants Affecting Real Property dated as of June 23, 2004 ("Original Covenant Agreement"), which was recorded on June 25, 2004 as Instrument No. 2004000580586 and that certain First Amendment to Agreement Containing Covenant,/Affecting Real Property dated as of November 3, 2008 (the "First Amendment" and together with the Original Covenant Agreement, the "Covenant Agreement"), which was/recorded on November 21, 2008 as Instrument No. 2008000544606. E. Pursuant to the Fifth Implementation/Agreement entered into between the Agency and CIM/HUNTINGTON, LLC dated as of My 19, 2004, Owner has transferred (or is concurrently with the recordation of this Second6endment) transferring the Hotel Property to Hotel LP. F. The Successor Agency succeeded to all of the interest of the Agency as successor agency pursuant to the Dissolution ActZ "Dissolution Act" as used herein means ABxl 26, making certain changes to the California Community Redevelopment Law and the California Health and Safety Code by adding Part 1.8 (commencing with Section 34161) and Part 1.85 (commencing with Section 34170)/"Part 1.85") to Division 24 of the California Health and Safety Code, as amended by Assembly Bill No. 1484 (Chapter 26, Statutes 2012) which was signed by the Governor of California on June 27, 2012, and as further amended by Assembly Bill No. 1585 which was signed by�the Governor of California on September 29, 2012, and as further amended by Senate Bill No. 341 which was signed by the Governor of California on October 13, 2013, and as may be further amended from time to time. G. Prior to Owner's conveyance to Hotel LP of the Hotel Property, Owner has filed two commercial condominium plans against the Owner Property, the Leased Premises, the Hotel Property, and the Hotel Leased Property. One condominium plan was filed on and contains two c fidominium units that will be used for the operation of a hotel (the "Hotel Condo Plan"). The other condominium plan was filed on and contains two condominium units that will be used for retail and office purposes (the "Retail Condo Plan"). It is anticipated that the condominium units in the Hotel Condo Plan (collectively, the "Hotel Units" and each a "Hotel Unit") and the condominium units in the Retail Condo Plan (collectively/the "Retail/Office Units" and each a "Retail/Office Unit") will all be sold by Hotel Second Amendment to Agreement Containing Covenants v13 2 HB -399- Item 11. - 33 LP and Owner, respectively, subject to the transfer provisions in, among other applicable agreements, the DDA and the Covenant Agreement, as amended by this Second Amendment. Each of the Hotel Units and the Retail/Office Units may also be referred to herein a" `Unit". The fee owner of any Unit shall be referred to herein as a "Unit Owner," provided th t if any Unit is owned by more than one parry as an undivided interest, the obligations shall be4pplicable to any holder of an undivided interest of 50% or more of such Unit. �+ H. Owner, Hotel LP and the Successor Agency desire t enter into this Second Amendment to amend the Covenant Agreement so that the obligations imposed on Owner and Hotel LP shall be divided into obligations applicable to each Unit Owner for such Unit Owner's respective Unit and obligations that become the obligations of the/Responsible Party (as defined below). NOW, THEREFORE, in consideration of the foregoing, the parties hereby agree as follows: f� 1. Revisions to Covenant Agreement. 1.1. Construction Covenants. The Construction Covenants have previously been released pursuant to the Release of Construction Covenants recorded on September 10, 2009 as Instrument No. 2009000483454 and theCompletion Date has been determined to be x 1.2. References to Agency. All references to the Agency in the Covenant Agreement shall be deemed to refer to the Successor Agency and all references to the Agency Executive Director shall refer to the SuccessorA' Rencv Executive Director. 1.3. Surviving Covenants. 1.3.1. Individual Unif Owners' Responsibility and Description of Responsible Party. From and after the effectivel(date of this Second Amendment, each Unit Owner (initially Hotel LP as to the Hotel Units/'and Owner as the Retail/Office Units) shall be responsible for all covenants contained in this Covenant Agreement with respect to the Unit owned by such Unit Owner. The covenants contained in this Covenant Agreement that are applicable to portions of the Property outside the Units (such as common areas and the Parking Parcel) shall be performed by the "Responsible Party," which shall be the Unit Owner of Parcel 1 of the Retail/Office Units, provided that if all .of the Unit Owners unanimously elect to have such covenants performed by one or more property owners' associations for portions of the Property outside the Units (such as common areas but specifically not including the Parking Parcel), by giving written notice to the Successor Agency, such designated property owners' association shall be the Responsible Party for the nerforrnance of such covenants. 1.3.2. First Paragraph of Section 2. The first sentence of Section 2 shall be deleted and the follo7g substituted in its place: Second Amendment to Agreement Containing Covenants v13 3 Item 11. - 34 liB -400- "The parties hereby covenant and agree on behalf of themselves and any successors and assigns in the Property or any portion there of or any improvements thereon or any interest therein that such parties and their successors and assigns shall comply with and be bound by the following covenants (hereinafter referred to as the "Surviving Covenants"), provided that upon the transfer by a Unit Owner, the newyUnit Owner shall be bound by the Surviving Covenants only as applicable to such Urli(Owner's Unit and shall not be liable or responsible for any breach of this Coven�,rit Agreement by any other party except for the Responsible Party as to the Parking Parcel:..." 1.3.3. Section 2.a. — Surviving Covenants. The first paragraph of Section 2.a. of the Covenant Agreement is hereby deleted in its entirety and replaced/with the following: "a. Devote the Property, or cause the Property to be devoted, to use solely in accordance with the Redevelopment Plan, the Grant Deed, the Agreement Containing Covenants Affecting Real Property (as amended), the DDA, and plans approved by the City of Huntington Beach for hotel uses (with respect to the Hotel Units), retail uses (with respect to the Retail/Office Units), restaurant uses (with respect to the Hotel"` Units and the Retail/Office Units) and parking uses (with respect to the Parking Parcela), with at least 142 and approximately 157 hotel rooms, and approximately 101,591 net square feet of gross leasable area of retail and restaurant uses, and a public parking facility conforming with City approved plans. In addition to all of the other requirements under this Covenant Agreement, the hotel to be maintained on the Hotel Units shall be a Boutique Hotel having an overall standard of quality equal to or better than the following ,Joie de Vivre Hotels as of the date of the Sixth Implementation Agreement to the DDA (all of which have at least a four star rating): (i) Harvest Inn located in St. Helena, California; (ii) Hotel Kabuki located in San Francisco, California; (iii) Hotel Los Gatos located in Los Gatos, California; (iv) Hotel Montgomery located in San Jose, California; and (v) Hotel Vitale located in San Francisco, California, and the retail and restaurant uses �fo be maintained on the Property shall be nationally or regionally recognizable and reputable retailers or restaurants of the nature and quality customarily included in retail/restaurant centers meeting the requirements and restrictions of the Second Revised Scope of Development (Second Revised Attachment No. 4), and meeting the following requirements"and restrictions:" 1.3.4 Sections 2fh. and 2.i. — Surviving Covenants. Sections 2.h. and 2.i. of the Covenant Agreement are/hereby deleted in their entirety and replaced with the following: "h. ,/There shall be no discrimination against or segregation of any person, or group of persons, on account of race, religion, creed, color, national origin, sex, sexual orientation, disability, marital status, age or any other protected classification in the sale, lease, sublease, transfer, use, / occupancy, tenure or enjoyment of the Property nor shall Owner or Hotel LP for themselves or any person claiming under or through them establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. Second Amendment to Agreement Containing Covenants v13 4 14B -401 - Item 11. - 35 i. Each Unit Owner shall refrain from restricting the rental, ,sale or lease of the property on the basis of sex, sexual orientation, marital status, race, color, creed, religion, ancestry or national origin of any,�,person. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: , (i) In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of; `any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premise's herein conveyed. The foregoing covenants shall run with the land." / (ii) In leases:/'The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That therejhall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased. (iii) In contracts: "There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, Second Amendment to Agreement Containing Covenants v13 5 Item 11. - 3 6 H B -402- occupancy, tenure, or enjoyment of the land, nor shall the transferee itself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation, with reference to the selection, location, number, use, or occupancy, o�f4enants, lessees, sublessees, subtenants, or vendees of the land." "" 1.3.5 Sections 2.o., 2.p., 2.q., 2.r. and 2.s. — Surviving Covenants. Sedtions 2.o., 2.p., 2.q., 2.r., and 2.s. shall be deleted in their entirety and replaced with the follong: "o. Use the Hotel Units only for a Boutique Hotel and,Xor no other use. P. As a Responsible Party obligation, mainttin, repair and operate the existing public parking facility located beneath/the Property, including the twenty-five (25) additional parking spaces abo e and beyond the four hundred eleven (411) parking spaces required by th City to be located in the public parking facility in connection with the deve. pment of the Property, for a total of four hundred thirty-six (436) parking sp7es in the public parking facility. Any changes to the size (e.g., tandem and/or compact) and locations within the public parking facility of the twenty-five (2 additional parking spaces shall be pre - approved in writing by the City Pl ming Department from time to time. The maintenance (including repair, re oration and reconstruction) and operation of the twenty-five (25) additional arking spaces shall be in accordance with this Covenant Agreement, the Parking Management Plan approved by the City, the covenants, conditions and restrictions and reciprocal easement agreement and operating agreement to be e fered into and recorded against the Site in accordance with the Conditions of Ap royal and the DDA, and plans approved by the City of Huntington Beach. q. As a Responsible Party obligation, pay, on behalf of City and Successor Agency, any and/all amounts owed to Abdelmuti Development Company ("Abdelmuti") and. James A. Lane and Victoria Jean Lane, as Trustees of the James A. Lane add Victoria Jean Lane 1197 Trust, due to any increase in the cost of annual pubic parking passes that exceed the Threshold Cost Increase (as defined in the "Amendment to OPA") pursuant to paragraph 3 of the Fourth Amendment to Owner Participation Agreement dated February 3, 2003 between Agency WaU Abdelmuti (the "Amendment to OPA"), and to defend, protect, indemniand hold harmless the City and the Agency and their respective officers/agents, elected and appointed officials, employees and volunteers free and harmless therefrom. r. Owner has previously entered into a hotel management agreement with J ie De Vivre Hospitality, Inc. which was approved in writing by the Agency (the "Original Management Agreement"). Prior to the expiration or termination of the Original Management Agreement (and any successor hotel management agreement(s)), Hotel Unit Owners shall obtain the Successor Agency's written approval of a new hotel management agreement which shall become effective Second Amendment to Agreement Containing Covenants v13 6 IIB -4031- Item 11. - 37 concurrently with the expiration or sooner termination of the hotel management agreement which it replaces. Each such hotel management agreement shall be with a manager determined by the Successor Agency to have not Jess than eight (8) years of experience in the successful operation of firsi/quality hotels comparable to the hotel located on the Hotel Property. Approvals required of the Successor Agency under this Section 2.r. shall follow and be limited by the following procedures: / Within twenty (20) business days after receipt of Hotel Unit Owners' request for approval, the Successor Agency shalrespond in writing by stating what further information, if any, the Successor Agency reasonably requires in order to determine whether or not to approve"' he agreement. Hotel Unit Owners shall promptly furnish to Successor Agency such further information as may be reasonably requested. Hotel Unit Owners' request for approval shall be deemed complete twenty (20) business days alter Successor Agency's receipt thereof, if no timely response requesting further information is delivered to Hotel Unit Owners, or, if such a timely response requesting further information is received, on the date that Hotel Unit Owners deliver such additional information to Successor Agency, provided that Hotel Unit Owners' additional information is responsive to Successor Agency's request. Successor Agency shall approve or disapprove the matter within thirty (30) business days after Hotel Unit Owners' request for such approval is accepted as complete or is deemed complete. Approval will not be unreasonably withheld if Hotel Unit Owners demonstrate that the proposed malagement agreement will provide capable, competent and experienced operation of hotels similar in quality, size and type as required to be maintained on thetPProperty pursuant to the DDA and this Covenant Agreement. If Successor Agency shall disapprove a hotel operator, Successor Agency shall do so by written/notice to Hotel Unit Owners stating the reasons for such disapproval.7 S. Athe time Owner entered into the Original Management Agreement, the requirement for a hotel franchise agreement was waived. Prior to entering into any franchise agreement or changing the flag of the hotel, Hotel Unit Owners shall¢cbtain the Successor Agency's written approval of such hotel franchise agreement (the "Original Franchise Agreement") and/or new flag of the hotel usiig the same approval procedures as are set forth in Section 2.r. herein above f<r approval of the hotel management agreement. Any franchise agreement or Motel flag shall provide for the operation of a hotel meeting the size, level of quality and other requirements and restrictions set forth herein and shall be with a franchisor determined by the Successor Agency to be comparable to, or of higher quality than, the franchisor under the Original Franchise Agreement. Prior to the expiration or termination of the Original Franchise Agreement (and any successor hotel franchise agreement(s)), Hotel Unit Owners shall obtain the Successor Agency's written approval (pursuant to said approval procedures) of a new hotel franchise agreement which shall become effective concurrently with the Second Amendment to Agreement Containing Covenants v13 7 Item 11. - 3 8 HB -404- expiration or sooner termination of the hotel franchise agreement which?"it replaces." /°` 1.3.6 Section 4—Transfer Restrictions. Section 4 of the Covenant Agreement shall be deleted in its entirety and the following substituted in its place: "Transfer Restrictions. Owner and Hotel LP recognize that: Development of the Property is important to the general warfare of the community; and Substantial financing and other public aids have bee made available by law and by the government for the purpose of making redevelopment possi e; and The qualifications and identity of Owner, Heel LP and each Unit Owner are of particular concern to the community and Successor Age y. Accordingly, Owner, Hotel LP and e Unit Owner agree to comply with the provisions of this Covenant Agreement relating to Yransfer. (a) For the reasons set LP nor Unit Owner shall assign this Cov portion thereof, nor lease nor make any form of all or any part of the Property therein, nor shall there be any change i change in the ownership of Owner, c thereof, or with respect to the identi of t or the degree thereof, by any met d or n or incapacity of any individual), collecti Successor Agency, which appr val shall i Transferee (as defined he inbelow) qualifications equal to or etter than the Agreement in all mater' 1 respects, inc experience in the succ sful operation, i retail improvements, c) character and agreements, undert ings, and covenants Deed, and all othe agreements entered ii the mana�emen , operation, maintenanc( -orth bove in this Paragraph 4, neither Owner, Hotel n t Agreement or sell the Property, any Unit or any 3 al or partial conveyance or transfer in any mode or it Unit or the improvements thereon, or any interest the identity of Owner, Hotel LP or Unit Owner or el LP or Unit Owner or in the relative proportions e parties in control of Owner, Hotel LP or Unit Owner -ans (other than such changes occasioned by the death ely, "Transfer"), without the prior written approval of )t be unreasonably withheld or delayed if the proposed determined by the Successor Agency to have original Owner as of the date of Original Covenant uding but not limited to (a) financial strength, (b) anagement and marketing of hotels, restaurants, and eputation, and (d) the ability to perform all of the of this Covenant Agreement (as amended), the Grant :o by Owner, Hotel LP or Unit Owner which relate to , and restoration of the Property or Unit and of the improvements hereon. Owner, Hotel LY or Unit Uwner (as appiicabie) snail promptly notary Successor A ency of any and all changes whatsoever in the identity of the parties in ownership or control f Owner, Hotel LP or Unit Owner or the degree thereof, of which it or any of its officers ve been notified or otherwise have knowledge or information. Any entity formation agreem is and documents (or changes therein) related to a Transfer, as well as the agreements and d cuments effectuating any Transfer, shall be subject to the approval of Successor Agency's Executive Director in connection with its approval of the Transfer. Second Amendment to Agreement Containing Covenants v13 8 HB -405- Item 11. - 39 (b) To assist Successor Agency in determining whether or not the proposed Transferee is so qualified, the requesting Owner, Hotel LP or Unit Owner sha l furnish to Successor Agency at no expense to Successor Agency, prior to that Transfe , detailed and complete financial statements of the proposed Transferee, audited by a certified public accountant reasonably satisfactory to Successor Agency, together with detailed and complete information about the business of the proposed Transferee, including its experience in developing and operating improvements of the type to be constructed onAe Property, the use to be made of the Property and the improvements thereon by the propos pa d Transferee, projections by the proposed Transferee of the sources of funds to be used to any indebtedness that the proposed Transferee will assume or take subject to, or agree t . pay, in connection with the Transfer, and other claims on and requirements for those rids, together with any other information Successor Agency may reasonably require o assist Successor Agency in determining whether or not the proposed Transferee is o qualified. To the greatest extent permitted by law, if Owner, Hotel LP or such Transfere provides Successor Agency with any proprietary financial information relating to a propose ransferee, Successor Agency shall not, without Owner's, Hotel LP's or Unit Owner's (as a licable) prior written consent, disclose or make any such financial information available to th public. (c) Approval by Successor Agency of any Transfer shall be conditioned upon such assignee, conveyee or transferee (collect*�vely "Transferee") agreeing, in writing, to assume the rights and obligations thereby transferred and to keep and perform all covenants, conditions and provisions of this Covenant Agreement (as amended) and the Grant Deed which are applicable to the rights acquired. (d) The limitation on Transfer contained in this Paragraph 4 shall not be deemed to apply to or prevent, no shall Successor Agency's approval be required under this Paragraph 4 in connection with, e granting of any security interest expressly permitted under this Covenant Agreement (as ended); nor the exercise by any mortgagee of its right to foreclose its mortgage by pow of sale or judicial foreclosure; nor any Transfer of an interest by a mortgagee having acquire Owner's interest in the Property or Hotel LP's interest in the Properly or a Unit Owner' interest in a Unit as a result of its rights under the mortgage, or by any successor to the mort gee whose interest shall have been acquired by, through or under any mortgage or shall have een derived immediately from any holder thereof. Notwithstanding the foregoing provisions f this paragraph (d), the limitations on Transfer contained in this Paragraph 4 shall ap ly to any mortgagee which acquires its interest in the Property or the improvements there other than by the exercise of its rights pursuant to the mortgage or deed in lieu of foreclosure. (e) / Any purported Transfer shall be null and void unless it complies with the terms of this /(f) Each Unit Owner shall only Transfer each Unit Owner's entire interest in the Unit anthe Improvements thereon as a whole and shall not re -subdivide the Property or the Unit or the improvements thereon beyond the subdivision existing as of the date of the recordat' n of the Second Amendment to this Covenant Agreement without the prior written approv of Successor Agency, which Successor Agency may grant or withhold in its discretion; Second Amendment to Agreement Containing Covenants v13 9 Item 11. - 40 lIB -406- provided, however, the two Units in the Hotel Condo Plan shall at all times be owned/by the same Owner and shall not be financed, conveyed, hypothecated or transferred separately (g) All costs incurred by Successor Agency to review any Transfer proposed by Owner, Hotel LP or a Unit Owner as reasonably necessary to close any Tr sfer shall be paid by the requesting party. With respect to each Transfer, the requesting pdrty shall deliver a retainer to Successor Agency in the sum of Five Thousand Dollars ($5,0�, to be applied to the payment of Successor Agency's costs. The administrative costs of Successor Agency shall be charged at the actual cost thereof not to exceed an hourly rate of fifty Dollars ($50.00). The costs of Successor Agency for consultants or legal services equired for providing such assistance shall be the actual sums billed to Successor Age for such consulting or legal services. All such costs in excess of Five Thousand Dollars ($ ,000) shall be paid within ten (10) days after written request therefor by Successor Agency. such costs incurred by Successor Agency for a Transfer equal less than Five Thousand ollars ($5,000), the balance shall be refunded promptly following the closing. (h) With respect to the leasing f space for occupancy, Owner or a Unit Owner shall not be required to submit the doc entation otherwise required for a Transfer by subparagraph (b), nor the assignment and Asumption agreement otherwise required by subparagraph (c), nor pay the costs referred t in subparagraph (g); provided, however, that such lease shall contain appropriate provisions conforming the use and operation of the premises to the covenants of the Grant Deed and rty, is Covenant Agreement (as amended), and further provided, that such tenant is a first qu nationally or regionally recognizable and reputable retailer or restaurant of the nature an quality customarily included in retail/restaurant centers meeting the requirements and restric ions of this Covenant Agreement (as amended)." 1.3.7 Section 5—Agency' Participation Payment. Each Unit Owner shall calculate the Agency Participation Payment/pith ser ect to such Unit Owner's Unit and pay any Agency Participation Payment, subjectto the following: (a) The current balance of the Project Cost for each Unit as of April 30, 2013 (including all accrued Developer's Annual Return as of such date) is: Retail/Office Units: Parcel 1: $54,253,852 Parcel 2: $26,980,450 Units (to be calculated as one Unit): $79,873,706 `(b) Each Unit Owner shall be responsible for complying with the reporting and payment obligations for such Unit Owner's Unit as described in Covenant Agreement, provided th'at the Hotel Units shall be calculated and reported together by the Unit Owner of the Hotel Units. Second Amendment to Agreement Containing Covenants v13 10 HB -407- Item 11. - 41 2. Covenant to Hold Hotel Units Together. The two Units in the Hotel Condo Plan shall, at all times be owned by the same Owner and shall not be financed, conveyed, hypothecated or transferred separately. 3. Release and Covenant Not to Sue. Owner and Hotel LP for themselves, aid on behalf of each and all of their respective members, partners, employees, agents, attorneys", successors and assigns hereby fully, absolutely and irrevocably waives, releases, remises,,,acquits and forever discharges Successor Agency and City of Huntington Beach and eack of their respective members, commissioners, employees, partners, shareholders, princ�als, agents, attorneys, successors and assigns from any and all claims, rights, demands, uits, awards, judgments, damages, actions, causes of action, lawsuits, costs, obligations, lia ' tits, defaults and duties of every kind and nature, known or unknown, existing or future, sus ected or unsuspected, asserted or unasserted, fixed or contingent, at law or in equity arising o of or relating in any way to any of the following events: (a) Successor Agency's Oversight Board d/or the California Department of Finance asserts jurisdiction and/or the right to approve r disapprove this Second Amendment or threatens to assert jurisdiction and/or the right to app ve or disapprove this Second Amendment; (b) Successor Agency's Oversight oard and/or the California Department of Finance disapproves or threatens to disappr e this Second Amendment or determines or threatens to determine that this Se co d Amendment is invalid (or any similar disapproval/determination); (c) Successor Agency's Oy6rsight Board and/or the California Department of Finance determines or threatens to de rmine that the DDA or any term(s) therein or any parts thereof is/are no longer an "enforcea le obligation(s)" under the Dissolution Act due in any way to the Successor Agency appr ing or entering into this Second Amendment and/or implementation of this Second A endment (or any similar determination); (d) Any third party initiates or threatens to initiate any litigation or administrative proceeding or action due in ry way to Successor Agency approving or entering into this Second Amendment and/or implementation of this Second Amendment; and/or (e) Successor Agency's Oversight Board and/or the California Department of Finance determines or 1hreatens to determine that any amounts listed on any ROPS pertaining to the DDA should be ryduced or disapproved in whole or in part due in any way to the Successor Agency approving r entering into this Second Amendment and/or implementation of this Second Amendment (or any similar disapproval/determination). The events in Sections 3(a) through 3(e) above may each be referred to herein as a "Challenge". O i r and Hotel LP for themselves, and on behalf of each and all of their respective members, partners, employees, agents, attorneys, successors and assigns hereby agree that Owner an Hotel LP and each and all of their respective members, partners, employees, agents, attorneys, successors and assigns shall not initiate, institute, maintain or prosecute in any manner Second Amendment to Agreement Containing Covenants v13 11 Item 11. - 42 FIB -408- any suit, action, or other proceeding, or voluntarily aid in the initiation, institution, maintenance or prosecution of any claim or legal action, state or federal, in law or in equity, again t'Successor Agency or City of Huntington Beach or any of their respective members, cmmissioners, employees, partners, shareholders, principals, agents, attorneys, successors ad assigns with respect to any matter, cause or thing whatsoever arising out of or relating any way to any Challenge. ,r/ In this regard, and not by way of limitation of the foregoing, wner and Hotel LP each acknowledge that it has been represented by its own legal coups with respect to the subject matter of this Second Amendment and the negotiation and pre ration of same, that it has not relied upon any representation or warranty of Successor Agenc or the City of Huntington Beach with respect thereto or the validity or enforceability of this S and Amendment, and in particular that neither Successor Agency nor the City of Huntington each has made and is not making any representation or warranty to Owner or Hotel LP with re ect to Successor Agency's authority to approve, enter into, and/or perform obligations under us Second Amendment under applicable provisions of the Dissolution Act or otherwise or wi respect to Successor Agency's authority to do so without seeking and obtaining the appro is of Successor Agency's Oversight Board and/or the California Department of Finance, that Owner and Hotel LP assume the full risk with respect thereto, including, without limitati n, in the event a Challenge occurs. In this regard, Owner and Hotel LP orever and irrevocably each waive the protections of California Civil Code Section 1542, ent' ed "General release; extent," and which provides that "[a] general release does not extend t claims which the creditor does not know or suspect to exist in his or her favor at the time o executing the release, which if known by him or her must have materially affected his or her s ttlement with the debtor." Notwithstanding the foregoing, however, nothing herein is intended or shall be interpreted as a release, waiv/yin r covenant not to sue arising out of any actual or alleged default or breach by Successor Agen performing its obligations under this Second Amendment. 4. Indemnity. /ande and Hotel LP each covenant to indemnify, defend, and hold harmless Successor Agency City of Huntington Beach and each of their respective members, commissioners, empartners, shareholders, principals, agents, attorneys, successors and assigns from and any and all loss, liability, damage, claim, cost and expense (including reasonable attorneycourt and litigation costs and fees of expert witnesses) arising out of or relating in any Way to any Challenge. Withou limiting the foregoing, and as a part of the foregoing indemnity and hold harmless, in t e event of a Challenge described in Section 3 (e), Successor Agency agrees, at no cost to Su essor Agency or the City of Huntington Beach, to participate in whatever administra 've appeal or meet -and -confer process may be available under applicable provisions of the Di solution Act, including, without limitation, Health & Safety Code Section 34177(m). As use herein, the phrase "at no cost to Successor Agency or the City of Huntington Beach" shall can that Owner and Hotel LP shall be jointly responsible and liable for promptly paying or rei bursing Successor Agency and City of Huntington Beach for all of Successor Agency's and City of Huntington Beach's actual and reasonable costs and expenses, costs and expenses Second Amendment to Agreement Containing Covenants v13 12 11B -409- Item 11. - 43 related to Successor Agency's and City of Huntington Beach's consultants or legal couns k and any other costs and expenses (e.g., travel costs) incurred with respect to such participat' n until the date the matter is finally resolved, all as reasonably determined by the Successor Agency Executive Director. 5. Further Revisions. Any provisions of the Covenant Agreement whic conflict with the intent of this Second Amendment shall be deemed revised in accordance with this Second Amendment. Nothing in this Second Amendment is intended to or limits, * any way any general provision in the Covenant Agreement that may pertain to Owner's or Hotel LP's or Unit Owner's obligations thereunder. 6. Binding on Successors and Assigns. This Second Amen,�=ment shall be binding upon and inure to the benefit of the successors, assignees, personal re fesentatives, heirs and legatees of the parties hereto. 7. DDA and Covenant Agreement in Full Force q4d Effect. Except as otherwise modified herein, the terms and conditions of the Covenant Ag cement shall remain unmodified and in full force and effect. In the event of any conflict betw en the terms of this Second Amendment and the Covenant Agreement, the terms of this Secon Amendment shall control. It is the intention of the parties that th. Second Amendment and each provision hereof be interpreted so as not to increase the oblig ions of the Successor Agency under the DDA and Covenant Agreement or to cause the Su essor Agency to take any action described in Section 34180 of the California Health and S ety Code. In the event that for any reason this Second Amendment is determined to be denied, disapproved, invalid or unenforceable by a determination or ruling by any court or administrative agency or body, including, without limitation, Successor Agency's O ersight Board, the California Department of Finance, or the State Controller's Office, o/nd e California Department of Finance determines that the DDA and/or the Successor Agencligations thereunder is/are not an "enforceable obligation[s]" as defined in the Dissolutionas a result of approving, entering into and/or performing obligations under this Se�CAmendment nothingherein shall be deemed to modify or terminate the DDA and "venant Agreement as currently written, the same shall survive and shall be enforceable in a cordance with and subject to the terms and conditions set forth therein, and Owner, Hotel LP each Unit Owner shall be bound by the terms, covenants and restrictions thereof. J 8. Further Ass,,ilrances. The parties agree to execute such other documents and to take such other action as many be reasonably necessary to further the purposes of this Second Amendment and the DDA. 9. Date of this Second Amendment. The effective date of this Second Amendment shall be the date upon which the Successor Agency has executed this Second Amendment. 10. Counterparts. This Second Amendment may be executed by each party on a separate signature page, and when the executed signature pages are combined with the balance of this Second Amendment, it shall constitute one single instrument. Second Amendment to Agreement Containing Covenants v13 13 Item 11. - 44 HB -410- Second Amendment to Agreement Containing Covenants v 13 14 14B -411- Item 11. - 45 the Second Amendment to Agreement Containing Covenants v13 15 Item 11. - 46 HB -41 z- Date: Date: Second 16 HB -413- Item 11. - 47 State of California County of On before Z me, a Notary Public in and for slid State, personally appeared , who proved to me on/the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribe the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrumAF ent. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. el Signature (Seal) State of California County of On personally appeared satisfactory evidence to be instrument and acknowled%4 authorized capacity(ies), and the entity upon behalf of x<hic before me, a Notary Public in and for said State, who proved to me on the basis of /the person(s) whose name(s) is/are subscribed to the within ed to me that he/she/they executed the same in his/her/their that by his/her/their signature(s) on the instrument the person(s), or ;h the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragrapVs true and correct. WITNESS my hand and official seal. Signature (Seal) Item 11. - 48 xB -414- State of California County of On me, a Notary Public in nod for said State, personally appeared , who proved me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the/instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the xistrument. I certify under PENALTY OF PERJURY under the laws f the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) KB -415- Item 11. - 49 Item 11. - 50 HB -416- HB -417- Item 11. - 51 Item 11. - 52 HB -418- HC UB -419- Item 11. - 53 Item 11. - 54 HB -420-