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J.T. DEVELOPMENT COMPANY, LLC. - 1996-12-16 (5)
r f� n F Recording Requested By and When Recorded Return To: Brown, Winfield & Canzoncri, Inc. 300 South Grand Avenue, Suite 1500 Los Angeles, California 90071-3125 Attention: Dennis S. Roy, Esq. With a copy to City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attention: City Clerk - j (a) p This Memorandum of Amended and Restated Disposition and Development Agreement ("Memorandum"), dated for identification purposes as of December 16, 1996, is entered into by acd between THE REDEVELOPMENT AGENCY OF THE CITY OF HUNT NGTON BEACH, a public body corporate and politic ("Agency") and IT DEVELOPMENT COMPANY, LLC, a California limited liability company ("Developer"): (b) Di=sitg,iand Development A=ement. Agency and Developer have executed an Amended and Restated Disposition and Development Agreement ("DDA') dated for identification purposes as of December 16, 1996, covering that certain real property located in the City of Huntington Beach, County of Orange, State of California, more fully described in Exhibit "A" attached hereto and incorporated herein by this reference. All of the terms, conditions, provisions and covenants of the DDA are incorporated in this Memorandum by reference as though written out at length herein, and the DDA and this Memorandum shall be deemed to constitute a single instrument or document. • ' Page I of SFht,:SF46Atme:Atch1208 12nM AA (c) rnose of Memoraadum. This Memorandum is prepared for recordation purposes only, and in no way modifies the terms, conditions, provisions and covenants of the DDA. In the event of any inconsistency between the terms, conditions, provisions and covenants of this Memorandum and the DDA, the terms, conditions, provisions and covenants of the DDA shall prevail. Page 2 of 7 SFIr.G:SF46AVw:Atch 1208 1Z1E96 , The parties have 'executed this Memorandurn at the place and on the dates specified immediately adjacent to their respective signatures. Executed ,19 at "Agency„ THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic By: Chairman By: Executive Director Executed 1119 at "Developer" JT DEVELOPMENT COMPANY. LLC, a California limited liability company . By: John Tillotson //Jw By: s -- - John Tsai By: ' Mike Roberts = .. Page 3 of 7 SF1S-Q.5F-96Avw--AUh1209 • • ' I STATE OF CALIFORNIA ss COUNTY OF ORANGE On, before me, a Notary Public, personally appeared JOHN TILLOTSON, personally known to me (or proved to me on the basis ofsatisfactory 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 signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNLk ) ) ss COUNTY OF ORANGE ) r On , before rae, a Notary Public, personally appeared MIKE ROBERTS, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or'the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public Page 4 of 7 STATE OF jilia-. . ) ss COUNTY OF On , before me, M(GAbff, r" , a Notary Public, personally appeared JOHN TSAI, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he . executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. C MICHAEL TANG-; Comm. #1030607 NOTARY PUBLIC • CAUFORN Q D ORANGE COUNTY V Cann+ Eapai June 19.1 Ogg STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) Notary Public On , before me, _ , a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidcnee) 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 signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public Page 5 of 7 STATE OF CALIFOPNIA ) ) ss COUNTY OF ORANGE - ) On , before me, ' _ _ , a Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public Page 6 . of 7 r EXHIBIT "A" �SSRIPI[ON Block 304 of Huntington Beach Tract, County of Orange, as per map recorded in Book 3, page 36 of NusecUaneous Maps in die Office of the County Recorder of said county. Attachment I I - Page 7 of 7 ' 1=96 Recording Requested By and When Recorded Return To: Brown., Winfield & Canzoneri, Inc. 300 South Grand Avenue, Suite 1500 Los Angeles, California 9007I-3125 Attention: Dennis S. Roy, Esq. With a copy to City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attention: City Cleric ff (Space Above this Line for Recorder's (a) per. This Memorandum of Amended and Restated Disposition and Development Agreement ("Memorandum"), dated for identification purposes as of December 16, 1996, is entered into by and between THE REDEVELOPMENT AGENCY OF THE CITY OF HiJNi GTON BEACH, a public body corporate and politic ("Agency") and. JT DEVELOPMENT COMPANY, LLC, a California limited liability company ("Developer"). (b) Deposition and Deve(gnment Ag=mvnt. Agency and Developer have executed an Amended and Restated Disposition and Development Agreement ("DDA') dated for identification purposes as of December 16, 1996, covering that certain real property located in the City of Huntington Beach, County of Orange, State of CaflfornN more fully described in Exhibit "A' attached hereto and incorporated herein by this reference. All of the terms, conditions, provisions and covenants of the DDA are incorporated in this Memorandum by reference as though written out at length herein, and the DDA and this IVlcmorandum shall be _ deemed to constitute a single instrument or document. Page 1 of 7 SFh--t3:SF-%A9MLArch1208 - 12 1% - • 1 I � (c) Purpose —of Memorandum. This Nlemorandurn is prepared for recordation purposes only, and in no way modifies the terms, conditions, provisions and covenants of the DDA. In the event of any inconsistency between the terms, conditions, provisions and covenants of this Memorandum and the DDA, the terms, conditions, provisions and covenants of the DDA shall prevail. Page 2 of 7 _ SF/s:CkSF-96AZ=Atch 120 E t2lE.96 The parties have -executed this Memorandum at the place and on the dates specified immediately adjacent to their respective signatures. Executed 19 at Executed , , 19 at SFh G:SFA6Agree:Atcb1206 12M 96 ••Agency„ THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic By: Chairman By Executive Director "Developer" JT DEVELOPMENT COMPANY, LLC, a California Iimited liability company By: John Tillotson By: John Tsai r By: Mike Roberts .. Page 3 of 7 - STATE OF CALIFORNIA ) } ss COUNTY OF ORANGE ' ) On, before me, _ _ , a Notary Public, personally appeared JOM I TILLOTSON, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instn ment, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNIA ) ) ss COUNTY OF ORANGE } On, before me, _ _ , a Notary Public, personally appeared MM ROBERTS, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WTINESS my hand and official seal. Notary Public Page 4 of 7 STATE OF _ ) ss COUNTY OF On , before me, _ M 1 C414r2 a Notary Public, personally appeared JOHN TSAI, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNIA } ) ss COUNTY OF ORANGE ) On , before me, a Notary Public, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public Page 5 of 7 STATE OF CALIFORNIA ) } ss COUNTY OF ORANGE - } On, before me, _ a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. VATNESS my hand and official seal. Notary Public Page 6 of 7 r r e r' EXIiIBIT "A" LEGAL DES PJFFION Block 304 of Huntington Beach Tract, County of Orange, as per map recorded in Book 3, page 36 of Miscellaneous Maps in L�a Office of the County Recorder of said county. Attachment 1 I Page 7 of 7 $Fh--QSF-96As w,Vd12AE 12AM ATTACHMENT -#3 Attachment 3 THE REDEVELOPIVENT AGENCY OF THE CITY OF HUNTINGTON BEACH THIRD BLOCK WEST PROJECT SUMMARY OF THE AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT The Parties The Redevelopment Agency of the City of Huntington Beach and J.T. Development LLC, a limited liability company. Project Location Within the Main -Pie,- Redevelopment Project Area, a full block consolidation consisting of approximately 80,000 square feet bounded by Main Street, 5th Street, Orange Avenue and Olive Avenue. Proposed Development A mixed use development consisting of approximately 80,000 square feet of residential development composed of approximately 45 town homes and approximately 40,000 square feet of commercial development composed of approximately 10,000 square feet of office, 6,500 square feet of restaurant and 23,500 square feet of retail and including approximately 262 parking spaces located at grade and in one level above grade and in one level below grade. The architectural style will be Spanish Mediterranean with awnings, shutters, arches and other details common to the vernacular and include an element(s) of public art. Developer Responsibilities The Developer w411 a :quire the site from the Agency for $2,159,000. The Developer will procure financing for the project and produce evidence of such financing and required insurance acceptable to the Agency Executive Director. The Developer will be responsible to procure any entitlements necessary to build the project from the city or any other responsible public or quasi -public agency and pay any fees made in connection with such approvals. The Developer will pay all costs to design, construct and market the project and any fees or commissions associated with the procurement of financing. The Developer will pay property tax in an amount which, upon completion of the project, will represent an assessed valuation of the commercial portion of the project and its appurtenant parking of not less than $5,000,000, and agrees not to appeal an assessment of such amount nor the two percent annual increase for the first five years following the completion of the project. Agency Responsibilities The Agency shall convey the property to the developer. The Agency shall repay the Developer for advances regarding the project in the amounts of $1,922,000 for land and $30,051 for hazardous materials studies for a total of $1,952,051 due in cash to the Developer at the close of escrow. The Agency will refund the Developer Deposit of $50,000 plus accrued interest since 1991. The Agency agrees to consider participation in the in -lieu parking program for spaces in the project above the minimum of 262 if such spaces are necessary to accommodate more than the 6,500 square feet of restaurant included in the project's entitlement application. The Agency is responsible for remediation for that portion of the site located at Main Street and Olive Avenue in an amount not to exceed $250,000. One hundred thousand dollars of this amount will be paid by property sellers: Koller- Gaurano; and either the Agency or the Developer may proceed beyond this cost at its sole discretion and cost. If the Agency is unable to complete remediation within 180 days, the Developer may terminate the agreement. The Agency agrees to complete demolition on the site (removal of asphalt) prior to conveyance. The Agency agrees to accept responsibility for the provision of the affordable production housing requirement created by the development of the 45 townhomes (15 percent requirement equals approximately seven units) at another location. Three of the units must be for very -low income households and four will be for low -moderate income households. hA Estimated Development Value Developer Payment for Site $ 2,159,000 Construction Value of Improvements Residential $10,062,000 Commercial 1 7,378,000 TOTAL: $19,599,000 Estimated Public Costs Site Acquisition Costs $ 6,302,000 Tenant Relocation Costs 500,000 Site Preparation Costs 480,000 Affordable Housing Production 500,000 TOTAL $ 7,782,000 (Less) Developer Rand Payment 2,159,000) NET COST TO AGENCY $ 5,623,000 Public Benefits The project returns the parcel to the tax rolls with an estimated upon completion value of the entire project or approximately $24 Million which will provide approximately $230,000 in tax increment to the Agency annually. The commercial space will generate approximately $ 60,000 in sales tax to the city annually. The project implements the Redevelopment Plan by: • removing blight; • providing adequate parcels and required public improvements to encourage new construction; • mitigating development limitations which constitute a serious physical, social and economic burden on the community; • providing adequate public improvements, public facilities, open spaces and utilities; and • providing construction and long-term employment opportunities. 3 The project will provide additional year-round residents in the area to support the commercial activities. The project will further the implementation of the Downtown Specific Plan and the city's General Plan. Estimated Value of Interest to be Conveyed To determine the value of the property in question, the Redevelopment Agency commissioned a reuse appraisal of the property by Keyser Marston Associates, Inc. The fair market value of the property was determined by the highest and best use for the land permitted by the Redevelopment Plan. The highest and best use is the legal use which prudence dictates will, over a reasonably foreseeable period of time, produce for the typical owner the highest net return of benefits,. and will at the same time preserve the utility of the property. The subject property has the greatest development potential for residentiallcommercial mixed use. The reuse appraisal included the income approach as well as the development approach to derive residual land value for the project. The appraiser concluded that the proposed use represents the highest and best use of the site. Based on the proposed Scope of development, the appraiser concluded that the fair market value and the fair reuse value are equal at $1.82 Million. 4 i ATTACHMENT #4 Attachment 4 SUMMARY REPORT PURSUANT TO SECTION 33433 of the CALIFORNIA COMMUNITY REDEVELOPMENT LAW on a DISPOSITION AND DEVELOPMENT AGREEMENT by and between the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH and JT DEVELOPMENT LLC This Summary Report has been prepared for the Redevelopment Agency of the City of Huntington Beach (Agency) pursuant to Section 33433 of the California Health and Safety Code. This report sets forth certain details of the proposed Disposition and Development Agreement (Agreement) between the Agency and JT Development LLC (Developer). The transaction requires the Agency to convey the entire block on Main Street bound by Orange, Olive and 5th Streets. This conveyance is taking place to allow for the construction of 45 residential units, 40,000 square feet of commercial space and 262 parking spaces. The 1.84 acre subject site (Site) is located in the Main -Pier Redevelopment Project Area in the City of Huntington Beach. This Summary Report is based upon information contained within the Agreement; and is organized into the following seven sections: 1. Salient Points of the Proposed Agreement: This section includes a description of the major responsibilities of the Agency and the Developer; 11. Cost of the Agreement to the Agency: This section details the cost of the Agreement to the Agency, including property acquisition costs, tenant relocation costs, site clearance costs, hazardous materials remediation and inclusionary housing production; Ill. Estimated Value of the Interests to be Conveyed Determined A"he Highest Use Permitted Under the Redevelopment Plan: This section estimates the value of the interests to be conveyed determined at the highest use permitted under the Site's zoning and the requirements imposed by the redevelopment plan; IV. Estimated Reuse Value of the Interests to be Conveyed -This section estimates the value supported by the Site based on the required use and with the conditions, covenants and development costs required by the Agreement; V. Consideration Received and Comparison with the Fair Reuse Value: This section describes the compensation to be received by the Agency, and the reasons for any difference between the compensation and the fair reuse value; V1. Blight Elimination: This section describes the former blighting conditions on the property, and explains how the Agreement will alleviate the blighting influence, and; VII. Conformance with the AB1290 Implementation Plan: This section explains how the proposed Agreement complies with the redevelopment strategy identified in the AB1290 Implementation Plan. This report and the proposed Agreement are to be made available for public inspection prior to the approval of the Agreement. 1. SALIENT POINTS OF THE PROPOSED AGREEMENT A. Developer Responsibilities Under the proposed Agreement. Developer must accept the following responsibilities: 1. The Developer must acquire the Site from the Agency for $2,159,000. The cash payment required to be made by the Developer will total $142,000 as a result of the following credits: • $1,922,000 for land acquisition advances previously made by the Developer. • $30,000 for hazardous materials testing undertaken by the Developer on the Agency's behalf. • $50,000 return of the Developer deposit plus $15,000 in interest accrued since 1991. 2. The Developer must construct all on- and off -site improvements required to serve the Site. 3. The Developer must construct a maximum of 45 residential units. 4. The Developer must construct a maximum of 40,000 square feet of commercial space, of which 10,000 square feet must be office space. Of the 30,000 square feet of remaining commercial space, no more than 12,000 square feet can be comprised of restaurant space. 2 5. The Developer must construct at least 262 parking spaces to serve the residential and commercial uses. 6. The Developer must agree, in the form of a recorded covenant, to the following property assessment terms: • At a minimum, the initial land valuation must be set at the $2,159,000 Developer purchase price; • The initial commercial property valuation must be set at a minimum of $5 million, and; • During the first five years of the commercial component's operation, the Developer will not appeal the commercial value below $7.5 million. B. Agency Responsibilities Under the proposed Agreement, the Agency must accept the following responsibilities: 1. The Agency must provide relocation assistance and benefits to displaced Site occupants. 2. The Agency must demolish the existing improvements on the Site. 3. The Agency must remediate and/or remove hazardous materials or hazardous materials contamination from the Site. The maximum cost exposure to the Agency under this requirement is $250,000. 4. The Agency must convey the Site to the Developer for the agreed upon purchase price of $2,159,000. 5. If the restaurant component of the development falls within the range of the 6,500 square feet currently proposed in the Scope of Development and the 12,000 square foot maximum imposed by the Agreement, the Agency must consider participating in an in -lieu parking program to support the parking needs created by the additional restaurant space. 6. The Agency must accept the responsibility for fulfilling the inclusionary housing obligation imposed by Section 33413 of the California Health and Safety Code. The production requirement created by the 45 unit residential project includes three very -low income units and four low/moderate income units. 3 11. COST OF THE AGREEMENT TO AGENCY The costs to be incurred by the Agency are comprised of land acquisition, demolition of the existing improvements, tenant relocation, hazardous materials remediation and off - site production of seven units to fulfill the Section 33413 inciusionary housing requirement The Agency costs have been identified as follows: Agency Acquisition of City Parcels $4,080,000 Agency Acquisition of Third Party Parcels 2,222,000 Estimated Tenant Relocation Costs 500,000 Estimated Demolition Costs 200.000 Hazardous Remediation TestinglCosts 280,000 Affordable Housing Production' 500,000 -Total Cost to Agency $7,782,000 (Less) Developer Land Payment (2,159,000) Net Cost to Agency S5,623,000 'Extrapolated from average assistance per unit costs presented in the Affordable Housing Strategy prepared by Keyser Marston Associates, Inc. As indicated in the table above, the total cost to the Agency is estimated at $7.78 million. When the land sales proceeds of $2.16 million are deducted from the costs, the net cost to the Agency are estimated at $5.62 million. Ill. ESTIMATED VALUE OF THE INTEREST TO BE CONVEYED DETERMINED AT THE HIGHEST USE PERMITTED UNDER THE REDEVELOPMENT PLAN Section 33433 of the California Health and Safety Code requires the Agency to identify the value of the interests being conveyed at the highest use allowed by the Site's zoning and the requirements imposed by the redevelopment plan. The valuation must be based on the assumption that near -term development is required, but the valuation does not take into consideration any extraordinary use and/or quality restrictions being imposed on the development by the Agency. The Downtown Specific Plan requires that the Site be developed with commercial uses or with a commercial/residential mixed -use project. In an analysis dated December 1, 1996, Keyser Marston Associates, Inc. (KMA) concluded that given the Site's size and the current market conditions, a mixed -use project represents the highest near -term use of the Site. In reviewing the requirements imposed by the Downtown Specific Plan, KMA concluded that the currently proposed Scope of Development for the Site exceeds the size of development that would be allowed by the Plan without special permits and joint -use of 4 parking. Without these exceptions, the Site's value would be limited to approximately $802,000, and with these exceptions the value was set at $1.75 million. As such, the KMA analysis determined that the proposed Scope of Development represents the highest use for the Si',e assuming near -term development is required. IV. ESTIMATED REUSE VALUE OF THE INTERESTS TO BE CONVEYED The Agreement limits development on the Site to 45 residential units, 40,000 square feet of commercial space and 262 parking spaces. The Agreement further requires the improvements to be developed in strict conformance with the construction quality standards established by the Agency. However, the scope and extent of the proposed development represents the highest use of the Site assuming near -term development is required. As such, the value of the Site at its highest use also represents the fair reuse value of the Site. Thus, the fair reuse value of the Site is estimated at $1.75 million or approximately $21.80 per square foot of land area. V. CONSIDERATION RECEIVED AND COMPARISON WITH THE FAIR REUSE VALUE The Agreement requires the Developer to purchase the Site from the Agency for $2,159,000. Thus, the consideration to be received for the Site exceeds both the established fair reuse value and the value of the Site at the highest use allowed by the redevelopment plan. VI. BLIGHT ELIMINATION The Site was occupied by a surface parking lot, a vacated bank, and two functionally obsolete office buildings. Over time these uses fell into disrepair and were occupied by a disparate mix of office and residential tenants. The proposed development of the Site will eliminate these uses and will assist in the revitalization of the Main Street corridor. VII. CONFORMANCE WITH THE AB1290 IMPLEMENTATION PLAN The Main -Pier Redevelopment Project Area has an established goal of revitalizing downtown Huntington Beach. To assist in fulfilling that goal, the Agency identified the development of a nevi mixed -use project on the Site as an objective of the AB1290 Implementation Plan. Thus, the proposed Agreement is deemed to be in conformance with the AB1290 Implementation Plan. 96827.HTB 14066 0039 12t2 % 5 ATTACHMENT #5 AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT (THIRD BLOCK WEST) THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, ("AGENCY"} nliul J T DEVELOPMENT COMPANY, LLC ("DEVELOPER"} to Q:SF-96Agw:DDA4g* TABLE OF CONTENTS L 1§100] SUBJECT OF AGREEMENT 'i A. [§ 1011 Purpose of Agrectnent i C. if 1021 The Redevelopment Plan. 2 D. If 1031 The Site, 2 D. If 1041 Parties to the Agreement 3 1.1§ 1051 The Agerncv. 3 3. [§ 1061 Th D�loper 3 S. i§ 1071 Prohibition Against ChanLe in Ownership, Management and Control of Developer and Prohibition Against Transfer of the Site. 3 6. [§ 1071 Prohibition Agg-ji Change in t?►�ncrship, Mann cmcnt andControl_of Dcvcloper and Prohibition Against Transfer of the Site, 3 E. if 1081 Re resentations by the Developer. 6 F. 111091 Good Faith Dreosit 6 I]. j§ 200] DISPOSITION OF THE SITE. 7 A.112011 Purchase of the Site. 7 C. If 202] Escrow. 9 E. It 2031 Lonjaince of Title and Delivery of Possession 12 G. if 204] Form of Deed for the Conve ance 12 L If 2851 Condition of Title 12 V. 11 206] Time for and Place of Delivery of Deed 13 X If 207] Recordation of Documents; Disbursement of Funds 13 Q. [§ 203] Title insurance 14 Q. If 2091 Taxes and Assessments 14 S. if 2101 Qccupants of the Site is U. i§ 211] Condition of tht Site is 1. iD sclosure 15 3. 11�ngp 15 3. Limited Warranties After Remediation Obligation to �ntribut , 16 i Fh 0:SF %Agrer.DDA1$M 1219.96 , 4. Developer Indemnity 17 5. PMIoMr Coycnantj 17 6. pc -..eloper Release 17 7. Definitions 18 L 1§ 2121 Preliminary Rork 19 K (§ 2131 Conditions Precedent to the Conveyance 19 N. (§ 2141 General Plan Designation and 7Aning of the Site-, Subdivision Map ApproV21. 21 0.112151 Submission of Evidence of Financial Commitments and Loan Closing 21 P. 112161 Relocation 22 Q.1§217l Real Estate Taxes and Assessed Valuations 22 W. [§ 3001 DEVELOPMENT OF THE SITE. 23 A.1§ 301] Development of the Site. 23 1. (§ 3021,Scopc of Development. - 24 2. (§ 303] Sitc Elan. 24 3. (§ 3041 Construction Drawings and Related Documentl. 24 4.1§ 3051(teview and Ap3rovalof Construction Dra%%i s and Related Documents. 25 5. [§ 3061 Cost of D�Cv torment. 26 6. [§ 3071 molition of Site. 27 7. [§ 3081 t4Zonstruction�Schedulc. 28 8.1§ 309] jndemniMlodily Injury pnd Property Damage Insu=2n . 28 9. [§ 310] CjMgnd Other Govcmrncntaf Agency Permits. 29 10. [§ 3111 PION of A2Ms. 29 l 1. (§ 312] Local.State and Fodc-m? Laws. 30 12. [§ 3131Anti-Di imination. 30 B. if 314] Mortgage, Deed of Trust. Sale and Lease -Back Financing; Rights of Holders. 31 1.(13151 N_q Encurnbmam Exog< r Salq andk f2r Development 3I 2.1§ 3161 HoldcrINN Oblipledlo Constnugg Jmprovcmcnts. 31 3. if 317] mic of Default to Mortgagee or Dodd of Trust Holders: Right to Cure. 31 4. (§ 3181 Failure of Hoiden to Complete Immoventents. 32 5. [§ 3191 fight of the At cpW2-Q neYoWgc or]D!;W pf Taut 1�gfault. 33 C. [§ 3201 fit of the A ency_to stisfy Other Dens on the Site After Title Passes. 33 D. if 3211 1&dditional Amendmen 34 F- if 3221 Certificateyf Completion. 34 IV. [§ 400] USE OF THE SITE. 35 A. [§ 4011 Construction of Improvements. 35 B, (§ 4021 Affordable Housing. 35 ii F1v0-SF-%AWw:DDAW 1zl m C. [§ 4031 Parlcine Carl&:, 35 D. 114041 Commercial Development. 36 E. [§ 4051 Uses In Accordance with Redevelopment Plan: Nondiscrimination. 36 F. Ij 4061 Effect oryioisain of the Terms and Projslons of this ALreement After Completion of Construction. - - - 37 V. [§ 5001 DEFAULTS AND REMEDIES. 38 A. [§ 50l] Defaults — General. 38 B. if 5021 I.eeal Actions. 39 1. [§ 5031 Institution OfLTgal Actions. 39 2. [§ 5041 Applicablc Law. 39 3. [§ 5051 A22ptancgf Service gf Process. 39 C. j§ 5061 Rights and Remedies Are Cumulative. 39 D. if 5071 Inaction Not a Waiver of Default. 40 E. if 5081 Remedies and Rights Prior to Conveyances. 40 1. [§ 5091 PUNgrg. 40 2. [§ 5101 Spcdfic Pcrformanct. 40 3. j§ 5I1] jqmination by IN DcveloMr Prior to the o= n . 40 4. [§ 5121 Termination by the Agena Prior to the C nM ante. 41 F. [§ 5131 Remedies of the Parties for Default After the Conveyance 43 1. j§ 5141 Termination and Damages. 43 2, [§ 515] &jion for SDMific Performance. 43 G. [§ 5161 Reentn_and Rei-estinQ of Title in the Agencv After the Conyevanm 43 VI. [§ 601] GENERAL PROVISIONS. 45 A. 116011 F21ices. Demands and Communications Between the Parties. 45 B. [¢ 602] Conflicts of Interest. 46 C. [§ 603] Enforced Delay: E:tension of Times of Performance. 46 D. 116041 Hon -Liability of Ofiiciais and Employees qt the Agency and the Developer. 46 E. [§ 605] ]Kpjirc A m nt Waivers, Consent and Approval. 47 F. 116061 Memorandum Qf Att?E meet- 47 G. [$ 607] Counterparts 48 I F wG:SFA6Agnee:DDAlgM 12,9196 VII. [§ 7001 TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY. 48 iv FI&G:SF-%Agree:DDAJSM 1119% AMENDED AND RESTATED DISPQSITION AM DEVELOPMENT AOREEMENT (THIRD BLOCK WEST) WHEREAS, the Redevelopment Agency of the City of Huntington Beach a public body, corporate and politic (the "Agency") and Newcomb/Tillotson Development Company, a California general partnership, previously entered into a Disposition and Development Agreement dated as of March 5, 1991 (hereinafter referred to as the "Prior DDA"); and Newcomb/Tillotson Development Company assigned its interest in the Prior DDA to JT Development Company, LLC, a California limited liability company ("Developer"); and Developer and the Agency desire to enter into an amended and restated Disposition and Development Agreement which will supersede and replace the Prior DDA and amend and restate all of the obligations thereunder; NOW, TB=ORE, this Disposition and Development Agreement ("Agreement") is entered into as of the 16th day of December 1996 ("Effective Date"), by and between the Agency and the Developer. The Agency and the Developer hereby agree as follows: I. [§ 100] SUBJECT OF AGREEMENT A. [§ 101]Purpose of Agreement I. The purpose of this Agreement is to effectuate the Redevelopment Plan (as hereinafter defined) for the Main -Pier Redevelopment Project (the "Project") by providing for the improvement of certain property situated within the (the "Noject Arm of the Pfejeet Subarea 5 of the Redevelopment Plan (the "Project Area"), by assisting in the assembly, disposition, and development of that real property. The Project is to be developed as a mixed use project pursuant to the Scope of Development set forth in Attachment No. 3. These improvements and certain other improvements to be constructed by the Developer constitute the "Improvements," as more specifically defined in Section 302 of this Agreement. Pursuant to this Agreement, a certain portion of the Project Area, hereinafter identified as the "Site" on the "Site Map", shall be developed and improved by the Developer in accordance with the terms of this Agreement. This Agreement is intended to set forth a compreherisive plan for development of the Site, including the nature, design, processing, financing and construction of the Improvements, for the mutual benefit of the Agency and Developer. The disposition and development of the Site as provided in this Agreement are in the vital and best interests of the City of Huntington Beach (the "City") and the health, safety, morals and welfare of its residents, and are in accord with the public purposes and provisions of all applicable state and local laws and requirements under which the Project has been undertaken. B. [§ 102] The RedevelopmentPlan. SFh:O.SF-%Apw:DDAagdr 12n,96 The Redevelopment Plan for the Project Area was approved and adopted by Ordinance No. 2578, as amended by Ordinance Nos. 2634 and 3343, of the City Council of the City of Huntington Beach. Such ordinances and the Redevelopment Plan as approved and amended (the "Redevelopment Plan") are incorporated herein by reference. Prior to issuance of a Certificate of Completion for the entire Site, the Agency agrees not to amend, modify, or change the Redevelopment Plan for the Project Area in a manner that would affect the uses or development permitted on the Site, the restrictions or controls that apply to the Site, or any other aspect of the use and enjoyment of the Site in the manner contemplated by this Agreement, without the prior written consent of the Developer. Amendments to the Redevelopment Plan applying to other property in the Project Area shall not require the consent of Developer. C. [§ 103]TTh . Ski g. The "Site" is that portion of the Project Area so designated on the "Site Map" which is attached hereto as Attachment No. 1 and incorporated herein by reference. The Site is described in the "Legal Description" which is attached hereto as Attachment No. 2 and incorporated herein by reference. The Site consists of the following parcels of property (collectively, the "Parcels"), which are identified on the Site Map: (i) those certain parcels owned by the Agency (the "Agency Parcels"); and (ii) that certain property, consisting of public alley located within the Site, which will be vacated and abandoned by the City and conveyed to the Developer in connection with redevelopment of the Site (the "Alley Parcel"). It is understood by the Agency and Developer that the existing Site will be subdivided substantially in accordance with a Tentative Tract Map (the "Subdivision Map") to be submitted by the Developer to City. The Iegal lots created as a result of that subdivision (individually, a "Lot" and, collectively, the "Lots") will consist of separate legal lots containing retail and office uses (individually, a "Commercial Lot" and, collectively, the "Commercial Lots") and separate legal lots containing residential condominium improvements ("individually, a "Residential Lot" and, collectively, the "Residential Lots"). 011 5F1s:o:SF-%AVw:DDA-4* 1219/96 D. [§ 104]Parties to the Agreement 1. [§ 105]The Agency. The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California. The principal office of the Agency is located at 2000 Main Street, P.O. Box 190, Huntington Beach, California 92649. "Agency", as used in this Agreement, includes the Redevelopment Agency of the City of Huntington Beach and any and all assignees of or successors to its rights, powers and responsibilities. Whenever the Agreement refers to approvals or other actions to be taken by the Agency, such approval or other action may be performed by the Executive Director of the Agency or his or her designee. 2. [§ 106]The Developer The Developer is JT Development Company, LLC, a California limited liability company. The principal office and mailing address of the Developer for purposes of this Agreement is I5272 Bolsa Chica Street, Huntington Beach, California 92649. The members of JT Development Company are John Tsai, John Tillotson, and Mike Roberts and the managing member is John Tillotson. By executing this Agreement, each person signing on behalf of the Developer warrants and represents to the Agency that the Developer has the full power and authority to enter into this Agreement, that all authorizations required to make this Agreement binding upon the Developer have been obtained, and that the person or persons executing this Agreement on behalf of the Developer are fully authorized to do so. Whenever the term "Developer" is used in this Agreement, such term shall include any and all nominees, assignees, or successors in interest to the rights and obligations of the original Developer provided for by this Agreement. 3. [§ 107] hi i i n -_ Againg QjIngt in Ownership.ana m nand !Control -of and PLQblilion Against Tran f r of the Site, The qualifications and identity of the Developer are of particular interest to the Agency. it is because of these qualifications and identity that the Agency has entered into this Agreement with the Developer. Consequently, prior to the Executive Director of the Agency issuing a Certificate of Completion with respect to the Site, or, as to each Lot within the Site, prior to the Executive Director's issuance of a Certificate of Completion with respect to such Lot (as provided in Section 322 below), -no person, whether a voluntary or involuntary successor of Developer, shall acquire any rights or powers under this Agreement, nor shall the Developer assign all or any part of this Agreement or the Site, without the prior written approval of the Agency (except as provided below). A voluntary or involuntary We or transfer of any interest in 3- SFAra.SFA6Agee:DDA4gh 12.9M the Developer or the Site shall be deemed to constitute an assignment or transfer for the purposes of this Section 107, and, except as provided below, the written approval of the Agency shall be required prior to effecting such sn assignment or transfer. Any purported transfer, voluntarily or by operation of law, in violation of this Section, shall be absolutely null and void and shall confer no rights whatsoever upon any purported assignee or transferee. The Agency agrees that it will not unreasonably withhold approval of any assignment requiring its consent. Notwithstanding the foregoing, Developer shall be entitled to make an assignment which consists of a mortgage, deed of trust, sale and lease -back, or other form of conveyance for financing, provided that such assignment is made to a lender approved by the Agency pursuant to Section 215 of this Agreement and is for the purpose of securing a loan of funds to be Used solely for financing the direct and indirect costs of constructing and operating the Improvements, including without limitation, any hard or soft construction costs, interest, fees, points, reserves or other financing costs, and all costs of planning, designing, constructing, developing, leasing and operating the Improvements to be constructed by the Developer with respect to the Site. Notwithstanding any other provision of this Agreement to the contrary, Developer shall also be entitled, without Agency approval, to make an assignment, sale or transfer of this Agreement (or a portion thereof), the Site (or a portion thereof), or any interest in the Developer, in connection with any of the following: a. The conveyance or dedication of any portion of the Site to the City of Huntington Beach or any other governmental, public, or quasi -public entity, body or agency, including all public utilities, where such conveyance or dedication facilitates the development of the Site. b. A transfer of the Site, or any Improvements thereon, and,'or the assignment of this Agreement to an entity over which the Developer, the managing member of the Developer, or a wholly owned affiliate of the Developer exercises operational and managerial control, if (i) the purchaser and/or assignee agrees to be bound by the provisions of this Agreement and any other agreements that the Developer and the Agency have executed in connection with the Project, and (ii) the Developer, the managing member of the Developer, or a wholly owned affiliate of the Developer holds more than a fifty percent (5001a) interest in the profits and losses of such purchaser or assignee. C. Any transfer resulting from the death or mental or physical incapacity of any individual. d. Any transfer to a family member or in trust for purposes of estate planning considerations, provided that an existing managing member of the Developer—,er-any ' -member; shall retain exclusive operational management and control of the development of the Site and shall remain responsible for the obligations of the Developer hereunder. 4 SFI&.-o:SF-%AVw:DDA4&& 1219,96 e. Any transfer of the Site or any part thereof or interest therein, as a result of the judicial or non judicial foreclosure (or conveyance in lieu thereof) of any encumbrance authorized by this Agreement. f. Any transfer to a lender approved by the Agency in accordance with the right of such lender under its approved encumbrance to acquire an interest in the Site, the Developer, or this Agreement. g. Any transfer resulting from the leasing to occupancy tenants of that portion of the Improvements to be occupied by such tenants. h. The sale of individual condominium units, the conveyance of common area and easement rights in connection therewith, and the conveyance of fee and easement interests between the Developer and the homeowners association to be created in connection with such condominium interests; provided, that no sale of an individual condominium shall close prior to the issuance of a Certificate of Completion for the applicable Residential Lot. _. Any transfer of an interest in the Developer as long as the managing member of the Developer retains operational management and control over development of the Site, provided such transfer does not affect more than sixty percent (60%) of the existing interests in the Developer and the Developer shall remain responsible for the obligations of Developer hereunder. a. Any trans&r- efa eFest in publi* ifade-dsw-le No assignment of the Developer's obligations with respect to the Site for which Agency approval is required, specifically excluding assignments for financing purposes and the types of assignments identified above in subparagrzphs (a) and (c) through 6)(i), inclusive, shall be effective unless and until the proposed assignee executes and delivers to the Agency an agreement in form reasonably satisfactory to the Agency's attorney assuming the obligations of the Developer which have been assigned. Thereafter, the assignor shall remain responsible to the Agency for performance of the obligation assumed by the assignee unless the Agency releases the assignor in writing or all of the requirements in this Section 107 are fully satisfied and the assignor is not then in default under this Agreement, in which case the assignor shall remain responsible to Agency for performance of the obligations arising prior to the effective date of the assignment or transfer, and shall be released only from any obligation or liability arising subsequent to the effective date of that assignment. No consent or approval by the Agency of any assignment or transfer requiring the Agency's approval shall constitute a waiver of the provisions of this Section 107 with respect to subsequent transfers. The Agency shall approve or disapprove of any proposed assignee which requires Agency approval within thirty (30) days after Agency's receipt of a written request therefor. Any disapproval shall be in writing, shall specify the reasons for the disapproval and any steps that must be taken by Developer to secure such approval. S SF/s G-SF-%Agm-.DDAAi * 119/% The restrictions of this Section shall terminate upon issuance by the Executive Director of the Agency of a Certificate of Completion for the entire Site or, as to each Lot within the Site, upon the issuance by the Executive Director of a Certificate of Completion with respect to said Lot. E. [§ 108]Representations by the Developer. The Developer represents and warrants to the Agency as follows: 1. The Developer is duly established and in good standing under the laws of the State of California and has duly authorized, executed and delivered this Agreement and any and all other agreements and documents required to be executed and delivered by the Developer in order to carry out, give effect to, and consummate the transactions contemplated by this Agreement. 2. The Developer does not have any material contingent obligations or any material contractual agreements which could materially and adversely affect the ability of the Developer to carry out its obligations hereunder. 3. There are no material pending or, to Developer's best knowledge, threatened, legal proceedings, to which the Developer is or may be made a party or to which any of its property is or may become subject, which have not been fully disclosed in the material submitted to the Agency, which could materially and adversely affect the ability of the Developer to carry out its obligations hereunder. 4. There is no action or proceeding pending or, to the Developer's best knowledge, threatened, requesting the dissolution or liquidation of the Developer and there is no action or proceeding pending or, to the Developer's best knowledge, threatened by or against the Developer which could affect the validity and enforceability of the terms of this Agreement, or materially and adversely a$'ect the ability of the Developer to carry out its obligations hereunder. Each of the foregoing items 1 to 4, inclusive, shall be deemed to be an ongoing representation and warranty and shall continue in effect until issuance of a Certificate(s) of Completion for the Site. The Developer shall advise the Agency in writing if there is any change pertaining to any matters set forth or referenced in the foregoing items 1 to 4, inclusive. The Developer has, prior to the approval of this Agreement by the Agency, delivered to the Agency a good faith cash deposit in the amount of Fifty Thousand Dollars ($50,000.00) (the "Developer Deposit") as security for the performance of the obligations of the Developer to be performed prior to the return of the deposit to the Developer, or its retention by the Agency as liquidated damages in accordance with the provisions of this Agreement. 1.1 SF1s-G:SF-%AVa:DDA4S* 120196 The Dem-elf-,eFIDeposit,et-t13e-eptien, majf-be-in-the foFm of- {t} easlr; {' iI'---,' 4iii)-lette€-e€redi�twue} ;�r-{�thef -seity ec the to- post -a let ' urity, f#all-be-ism-€'©-eeee�pt$ble-te-Agert�be issued le insti€utf-hy. The Developef may ehange the foFm of the eposit-€rem+-t' ' ted- forms --of D 'st- The Developer Deposit; if-em.1, or-e-erti€ed easWeer,-eheek,-shall-be has been deposited in an interest -bearing account of the Agency in a bank or trust company selected by it. If, notwithstanding the foregoing, Agency fails to deposit the cash in an interest -bearing account, Developer shall notify Agency in writing of such failure, and Agency shall have fifteen (15) days after receipt of such notice to transfer such Developer Deposit to an interest -bearing account. Agency shall have no liability to Developer for failure to maintain such Developer Deposit in an interest -bearing account until expiration of that fifteen (15) dsy period. Upon termination of this Agreement as provided in Section 512(a)-(d), (1) or (g) of this Agreement, the Developer Deposit, including all interest payable thereon, or, if a letter of credit, guaranty, or other security, the proceeds thereof, shall be retained by the Agency as provided therein. Upon termination of this Agreement as provided in Section 511 or 512(e) of this Agreement, the Developer Deposit, and all interest thereon not previously released to Developer, shall be returned to the Developer by the Agency, as provided therein. The Agency shall be under no obligation to earn any minimum rate of interest on the Developer Deposit. Upon termination of this Agreement, interest earned shall be retained by or returned to the party entitled to the Developer Deposit at that time. If the "Conveyance" (as defined in Section 202) is effected, the Agency shall immediately return the Developer Deposit (together with any interest earned thereon not previously released to Developer) to the Developer, or, at Developer's election, credit the Developer Deposit (together with interest thereon) to the purchase price of the Site. H. [§ 2003DISPOSITION OF THE SITE. A [§ 201]Rr-�h-nqpf the Site. 1. Pursuant to the Prior DDA, the Agency has acquired that portion of the Site referred to in the Prior'DDA as the "Third Party Parcels" (hereinafter referred to as the "Third Party Parcels"; said parcels are depicted on the Site Map (Attachment No. 1)). In order to complete its assembly of the Site, the Agency shall, in accordance with Section 203 below and the Schedule of Performance, cooperate in the vacation by the City of the Alley Parcel. The Agency agrees to use its best efforts to cause the City to undertake or cause to be undertaken and diligently pursue or cause to be pursued all hearings and other actions necessary to cause vacation of the Alley Parcel prior to the Conveyance. The Agency further 7 S Fla fl:SFr96A V w: DDA4gdr 1219.'96 agrees, promptly upon vacation of the Alley Parcel, to use its best efforts to assemble and obtain the conveyance, as necessary, of all interests required to vest the Agency with fee simple marketable title to the Alley Parcel in accordance with this Agreement so that the Agency will be in a position to vest such title in the Developer as a result of the Conveyance. 2. Pursuant to the Prior DDA, Developer advanced to the Agency One Million Nine Hundred Twenty Two Thousand Dollars ($1,922,000.00) in connection with acquisition of the Third Party Parcels and Thirty Thousand Fifty -One Dollars ($30,051.00) in connection with environmental investigation of the Site. Said funds, together with all other funds that may be advanced by Developer for environmental assessment of the Site (Section 211[2]) and/or demolition of all structures and clearance of all improvements from the Site, if applicable (Section 307), shall constitute a loan from Developer to Agency (the "Developer Loan"). The Developer Loan is currently evidenced by a promissory note, and is currently secured by a first deed of trust encumbering the interest of the Agency in the Site (exclusive of the Third Party Parcels). The Agency and the Developer shall promptly execute, acknowledge, and record such additional documentation as may be necessary to e%idence and/or secure any additional advance Developer may elect to or be obligated to make with respect to the Developer Loan under the terms of this Agreement. The Developer Loan shall be immediately payable by the Agency to the Developer upon the termination of this Agreement for any reason, other than the Developer's uncured material default. In the event that this Agreement is terminated, and the Developer is in material default of this Agreement at that time, and such default has already continued beyond the cure period provided by Section 501 hereof, then, notwithstanding such termination, the Developer Loan shall not be repayable until the Agency conveys all or a portion of the Site, or an interest therein, to a new developer for purposes of redevelopment; provided (i) that the Agency shall use its best efforts to locate a successor developer as quickly as possible, and (ii) the Developer Loan shall, in any event, be due and payable in full one (1) year after the Agencys notice to Developer of tht termination of this Agreement. If such obligation is not repaid when due, it shall thereafter bear interest at a rate equal to twelve percent (12%) per annum or the highest rate permitted by law, whichever is less (the "Agreed Interest Rate"). Following the date of this Agreement, Developer shall not be required to make any further advance to the Agency with respect to acquisition of the Third Party Parcels. The outstanding balance of the Developer Loan as of the date of this Agreement is One Million Nne Hundred Fifty -Two Thousand Fifty - One Dollars (S 1,952,051.00). Asset forth in Section 201 [3] below, all amounts comprised within the Developer Loan as of the Closing shall be deducted from the purchase price payable to the Agency. Developer acknowledges that it is not entitled to any further deduction or offset to the purchase price on the basis of other Project costs incurred prior to the date of this Agreement. 3. Provided that the Developer is not then in default of this Agreement, and in accordance with and subject to all of the terms, covenants and conditions of this Agreement, Agency agrees, at or before the time established in the Schedule of Performance (Attachment No. b), to sell to the Developer, and the Developer agrees to purchase from the Agency, the Site. The purchase price for the Site shall be Two Million One Hundred Fifty -Mine Thousand Dollars ($2,159,000.00), less (a) One M1 ion Nine Hundred Fifty -Two Thousand and Fifty -One Dollars ($1,952,051.00), representing the amount of funds advanced by Developer in connection with acquisition of the Third Party Parcels and environmental investigation of the Site to date, and (b) 8 SFI::G:..SF-%AVrecDDA4g& 1219/96 all costs hereafter incurred by Developer pursuant to Section 211 in connection with environmental investigation (but not remediation) of the Site, (c) the amount of funds advanced or incurred by Developer in connection with demolition of all improvements on and clearance of all improvements from the Site pursuant to Section 307 (including the costs of asbestos removal incurred in connection with the demolition) and (d) at Developer's election, the Developer Deposit (together with all interest thereon), (the net amount obtained following such reduction is herein referred to as the "Purchase Price"). The Purchase Price will be paid by Developer to Agency in cash at close of Escrow (as hereinafter defined). 4. In addition to the consideration set forth above, the Developer shall pay all of those costs, charges, fees and expenses hereafter expressly provided to be paid by Developer pursuant to this Agreement and shall, at its cost, provide all of the Improvements required by this Agreement to be provided by the Developer at its cost. B. [§ 202]Escrow. 1. The Agency and the Developer have opened an escrow with Orange Coast Title Company (the "Escrow Agent"). The escrow described in this Section 202 shall be referred to as the "Escrow," and the conveyance of title to the Site provided for in this Section 202 shall be referred to as the "Conveyance." The "Close of Escrow" shall refer to the Conveyance and shall occur concurrently with the effectuation of that Conveyance. This Agreement constitutes the joint basic escrow instructions of the Agency and the Developer for the Conveyance, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. The Agency and the Developer shall provide such additional escrow instructions as shall be necessary for and consistent with this Agreement. The Escrow Agent is hereby empowered to act under this Agreement, and the Escrow Agent, upon indicating within five (5) days after the opening of the Escrow its acceptance of the provisions of this Section 202, in writing, delivered to the Agency and the Developer, shall carry out its duties as Escrow Agent hereunder, 2. Upon delivery of the Grant Deed (as hereafter defined) to the Escrow Agent by the Agency pursuant to Section 204 of this Agreement, the Escrow Agent shall record such deed when title can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Grant Deed shall cover the entire Site. Escrow Agent shall promptly cause'the recordation of such Grant Deed and its delivery to the Developer, and, in connection therewith, shall allocate all charges and prorations in accordance with the instructions for this Escrow applicable to the Conveyance. The Developer shall accept conveyance of title as provided in Section 201. The Escrow Agent shall pay any applicable transfer tax. Any insurance policies covering the Site are not to be transferred. 3. The Developer shall pay into the Escrow the following fees, charges and costs promptly after the Escrow Agent has notified the Developer of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for Close of Escrow: SF1r0:SF-%A 7w:DDA4Vk 1Z9/% a. One-half (1/2) of the Escrow fee; b. That portion of the premium for the title insurance policy to be pain by the Developer as set forth in Section 208 of this Agreement; C. The Purchase Price in cash; d. Any applicable documentary transfer tax and/or stamps; and e. Any other costs customarily allocated to the buyer of real property in the eCounty of Orange. 4. The Agency shall pay into Escrow the following fees, charges and costs promptly after the Escrow Agent has notified the Agency of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for Close of Escrow: a. One-half (1/2) of the Escrow fee; b. Cost of drawing the deed; C. Recording fees; d. Notary fees; e. That portion of the premium for the title insurance policy to be paid by the Agency as set forth in Section 208 of this Agreement; f. Ad valorem taxes, if any, upon the Site for any time prior to transfer of title; and g. Any other costs customarily allocated to the seller of real property in the County of Orange. 5. The Agency shall timely and properly execute, acknowledge and deliver the Grant Deed as necessary to convey the entire Site in the manner contemplated in Section 201 and Section 202[2] of this Agreement. The deed shall be substantially in the form of the "Grant Deed" which is attached to this Agreement as Attachment No. 7 (and is incorporated herein). 6. The Escrow Agent is authorized to: a. Pay and charge the Agency and Developer, respectively, for any fees, charges and costs payable under this Section 202 in accordance with the terms hereof. Before such payments or charges are made, the Escrow Agency shalt notify the Agency and the Developer of the fees, charges and costs necessary to clear title and close the Escrow. 10 9 Fls IM S F-%Agra: D DA4* 1 nIM b. Disburse funds and deliver the Grant Deed and other documents to the parties entitled thereto when the conditions of this Escrow have been fulfilled by the Agency and On Developer. Funds deposited as part of the Purchase Price shall not be disbursed by the Escrow Agent unless and until the Escrow Agent has recorded the Grant Deed (Attachment No. 7) contemplated by this Agreement and has delivered to the Developer and (f requested by the Agency) the Agency, respectively, a title insurance policy insuring title to the entire Site and conforming to the requirements of Sections 205 and 208 of this Agreement. C. Record any instruments delivered through this Escrow, if necessary or proper, to vest title in the Developer in accordance with the terms and provisions of this Agreement. All funds received in this Escrow shall be deposited by the Escrow Agent, with other escrow funds of the Escrow Agent in an interest earning general escrow account or accounts with any state er national bank doing business in the State of California. Such funds may be transferred to any other interest earning general escrow account or accounts. All disbursements shall be made by check of the Escrow Agent. All adjustments are to be made on the basis of a thirty (30) day month. If this Escrow is not in condition to close on or before the time for conveyance established in Section 206 of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, demand from the Escrow Agent the return of its honey, papers or documents deposited with the Escrow Agent. No demand for return shall be recognized until ten (10) days after the Escrow Agent shall have mailed copies of such demand to the other party or parties at the address of its or their principal place or places of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party within the ten (10) day period, in which event the Escrow Agent is authorized to hold all money, papers and documents with respect to the Site until instructed by a mutual agreement of the parties or by a court of competent jurisdiction. If no objection is raised within such ten (10) day period, Escrow shall return all money, papers and documents to the party demanding their return. If, notwithstanding the failure of Escrow to close within the time provided in the Schedule of Performance, no demand is made on Escrow for the return of money, papers or documents, the Escrow shall be closed as soon as possible. Any amendment to these escrow instructions shall be in writing and signed by both the Agency and the Developer. At the time of any amendment, the parties shall secure the agreement of the Escrow Agent to carry out its duties as Escrow Agent under such amendment. All communications from the Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner established in Section 601 of this Agreement for notices, demands and communications between the Agency and the Developer. 11 8F/rO:SF-%AVw:DDA4g* 1"M The liability of the Escrow Agent in the capacity as escrow holder with respect to the Conveyance is limited to performance of the obligations imposed upon it under Sections 202 through 211, inclusive, of this Agreement. D. [§ 203]QgnvVance of Title nd Deliv f Possessign. Subject to any extensions of time mutually agreed upon in writing between the Agency and the Developer, the Conveyance shall be completed on or prior to the date specified therefor in the Schedule of Performance (Attachment No. 6). The Schedule of Performance (Attachment No. 6) is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Agency. The Agency and the Developer agree to perform all acts necessary to the conveyan^e of title in sufficient time for title to be conveyed in accordance with the foregoing provisions. It shall be a condition precedent to Developer's obligations under this Agreement that the City shall have caused the vacation of the Alley Parcel prior to the Conveyance, and that, concurreni with such Conveyance, record title to the Alley Parcel will be vested in Developer free and clear of all liens, encumbrances, easements, rights, rights of way, claims or other limitations thereon, except for any exceptions to title approved by Developer pursuant to Section 205. Possession shall be delivered to the Developer not later than the conveyance of title, except that limited access shall be permitted before conveyance of title as provided in Section 211 of this Agreement. Provided that all conditions set forth in this Agreement with respect to the Conveyance have been satisfied, the Developer shall accept title on or before the date established in the Schedule of Performance (Attachment No. 6) for the Conveyance. F. [§ 204]Form of Deed for the Cone, nc . The Agency shall convey to the Developer title to the Site, excepting the mineral rights thereto, in the condition provided in Section 205 of this Agreement by a grant deed substantially in the form of the Grant Deed set forth in Attachment No. 7. H. [§ 205]Qgr.dition_9fTitle. The Agency shall convey to the Developer fee simple merchantable title to the Site, excepting the mineral rights thereto (but without reservation of any right of surface entry), and said title shall be free and clear of all recorded or unrecorded liens, encumbrances, covenants, assessments, easements, leases, taxes, and other matters affecting title, except for covenants and easements of record which the Developer approves in writing pursuant to the provisions of this Section 205, the Redevelopment Plan, and the provisions contained in the Grant Deed (Attachment No. 7). The condition of title shall be compatible with and not preclude development of the Improvements. The Developer has, prior to the execution of this Agreement, been provided with a preliminary title report (the "Preliminary Title Report"), together with copies of all documents reported as exceptions in the Preliminary Title Report (collectively the "Title Documents") for the 12 SF/x.O:5F-%Av .-DDMg& 119M Site, dated as of August 5, 1991, Order No. 168013-5. A copy of the Preliminary Title Report is attached hereto as Attachment No. 10. Developer has approved exceptions 1, 2 and 3 shown in the Preliminary Title Report, subject to receipt of an endorsement from Title Company insuring that there is no right of surface entry on the Property with respect to any of those items. All other exceptions, including, without limitation, all mortgages, deeds of trust or other like monetary encumbrances shall be deemed disapproved and Developer shall not be required to accept the Site subject to any such exceptions or liens. Agency shall correct or remove such matters identified in the Disapproval Notice not fates than the Conveyance of the Site. The Agency will reserve and except from the Conveyance all interests in oil, gas, hydrocarbon substances and minerals of every kind and character lying more than 500 feet below the surface, together with the right to drill into, through, and to use and occupy all parts of the Site lying more than 500 feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said site or other lands, but without, however, any right to use either the surface of the Site or any portion thereof within 500 feet of the surface for any purpose or purposes whatsoever. - I [§ 206]Time for and Place of Delivery f Deed Subject to any mutually agreed upon extension of time, the Agency shall deposit the Grant Deed (Attachment No. 7) with the Escrow Agent on or before the date established for the Conveyance pursuant to the Schedule of Performance (Attachment No. 6). L. [§ 207]Rgcordation of Documents: Disbursement of Funds. The Escrow Agent shall file the Grant Deed for recordation among the land records in the Office of the County Recorder for Orange County, and shall deliver the balance of the Purchase Price (concurrent with the Conveyance) to the party entitled thereto after delivery to the Developer of a title insurance policy insuring title in conformity with Section 205 of this Agreement. N. [§ 208]ni Insurance. Concurrently with recordation of the Grant Deed (Attachment No. 7) conveying title to the Site, the Title Company shall provide and deliver to Developer a title insurance policy issued by the Title Company insuring that the Title to the entire Site is vested in Developer in the condition required by Section 205 of this Agreement. The Title Company shall provide the Agency with copies of the title insurance policy and the title insurance policy shall be for the amount of Two Million One Hundred Fifty -Mine Thousand Dollars ($2,159,000.00). The Agency shall bear a share of the cost of the title insurance policy equal to the cost of a standard CLTA policy with coverage in the amount specified above. All additional costs incurred for or related to such title insurance shall be borne solely by the Developer. The Developer may, at its option and 13 SF/s..Q:SF-%AVve:DDA4g& 1"196 at its cost, obtain coverage in excess of the amount specified above, secure any endorsements to its CLTA form of policy, or secure an ALTA form of policy, rather than the CLTA policy. P. [§ 209]Taxes and Assessments. Ad valorem taxes and assessments, if any, on the Site levied, assessed or imposed for any period prior to the Conveyance shall be borne by the Agency, and any of such taxes and assessments imposed after the Conveyance of the Site shall be borne by the Developer and its successors and assigns. After the Conveyance of the Site to Developer, Developer small pay when due all real estate taxes and assessments on the Site so long as Developer retains an interest therein. 14 SF/sflSF 9dAgrrrDDAdgdr I219'96 R. [§ 210]-cgupants_of the Site. Concurrent with the Conveyance, possession of the Site shall be delivered to the Developer with no occupants and free of any rights of possession by others. T. [§ 21Inndition of the Site. 1. Di3 1 ur . The Agency represents that, to the best of its actual knowledge, two gasoline service stations formerly existed on the Site, which contained underground gasoline storage tanks, which may have contaminated the soil or groundwater on or under the Site with petroleum or other Hazardous Substances (as defined below). GeoRemediation Inc. ("Environmental Consultant"} has conducted an environmental assessment of the Site. Environmental Consultant set forth its findings in a work plan, dated January 12, 1996, and attached hereto as Attachment No. 8 and incorporated herein, which contains the recommended remediation measures for the Site. 2. rlsanup. Subject to the "Remediation Cost Cap" (defined below), Agency hereby agrees to fund all remediation activities (the "Remediation"), including the installation of monitoring equipment and removal of all asbestos from the Site in connection with demolition and clearance of the Site pursuant to Section 307, necessary to correct or remove the environmental harms or hazards noted in the above investigation (Attachment No. 8). The Developer and the Agency have accepted the recommendation of the Environmental Consultant (Attachment No. 8) as establishing the scope and description of the Remediation work to be performed on the Site and the parameters and conditions of such Remediation work. Such Remediation work is underway as of the date of this Agreement. The Environmental Consultant is presently supervising the Remediation work performed by the chosen contractor in order to ensure that such Remediation work is diligently pursued to completion in compliance with all applicable laws, including without limitation, those statutes described below as the Applicable Laws, and the Remediation plan approved by the parties. The Agency agrees to consult with the Developer and keep the Developer fully informed throughout the Remediation process, and agrees to allow the Developer access to the Site for purposes of inspecting any Remediation work being performed thereon. The Developer shall be notified of, and allowed to attend and participate in, all discussions, hearings, proceedings or meetings related to the Remediation work. The Agency further agrees to consult with the Developer with respect to all Remediation work, to provide the Developer with copies of all correspondence, studies, tests and other documentation relating to the Remediation work, and to reasonably consider any recommendations or requests presented by the Developer with respect to such Remediation work - The Agency shall provide the Developer, upon the Developer's request from time to time, with an accounting of remediation costs incurred to date ("Remediation Costs"). Prior to undertaking any such Remediation work, the Agency shall obtain all required governmental approvals pursuant to California Health and Safety Code Section 33420.5 (to the extent applicable) and any other applicable laws in connection with the performance of the Remediation. 15 SFh Q:5F %Avw.DDA4g* 111 M If the projected costs of Remediation to be incurred by the Agency with respect to the Site (including the projected cost of the asbestos removal to be incurred in connection with demolition and clearance pursuant to said Section 307, but exclusive of any other costs of demolition or removal pursuant to said Section) (the "Remediation Cost") at any time exceeds Two Hundred wA Fifty Thousand Dollars ($250,000.00) (the "Remediation Cost Cap"), either party may terminate this Agreement, within thirty (30) days after notice of such projected cost, by the procedure set forth in Sections 511 and 512 herein; provided, however, that if one of the parties, at its option, agrees to pay the excess of the Remediation Costs described in this Paragraph 3 over Two Hundred and Fifty Thousand Dollars ($250,000.00), the other party may not terminate this Agreement. Such payment shall not constitute a waiver of any other right of the paying party or of any responsibility or liability of the other party under this paragraph. Notwithstanding anything else in this Agreement which is or appears to be to the contrary, unless the Developer, in its sole discretion, elects otherwise, all work described in this paragraph shall be completed and all required approvals obtained prior to the Conveyance of the Site to the Developer. If necessitated by the foregoing sentence, the date set forth in the Schedule of Performance (Attachment No. 6) for Conveyance of the Site shall be extended as necessary to complete such Remediation and secure such approvals; provided that such extension shall not exceed one hundred eighty (180) days. If the Agency is unable to complete such Remediation and obtain all necessary approvals by such extended deadline, then the Developer, at its sole option, may terminate this Agreement or extend the deadline for the Conveyance of the Site to such date(s) as Developer deems appropriate. Agency further agrees to indemnify, defend and hold Developer and all members, partners, employees, contractors, agents and representative of Developer (collectively, "Representatives") harmless from all Iosses, liabilities, costs, expenses, damages, claims and causes of action, including attorneys' fees and court costs, (collectively, "Liabilities") arising from or related to Developees actions on behalf of Agency pursuant to this Section. 3. Limited Warranties After Rem ediati n• Obligation to Contribute. Upon completion of any cleanup required pursuant to Paragraph 2 above, the delivery of the Site to the Developer shall be in an "as --is" condition, with no warranty expressed or implied by the Agency as to the presence of Hazardous Substances on the Site, except as expressly provided below. Notwithstanding anything above to the contrary, the Agency shall remain responsible for and shall indemnify, defend and hold the Developer and its Representatives harmless from all costs, expenses, loss, damage, cause of action or liability ("Liabilities") arising from or related to any Remediation work performed by or on behalf of the Agency (except work performed by the Developer) on the Site pursuant to Section 211[2]. In addition, Agency agrees to indemnify, defend and hold Developer and its Representatives harmless from all Liabilities arising from or related to the presence of any Hazardous Substances on the Site, regardless of when discovered, which were located on the Site at the time of the Conveyance; provided, that (ii) the Agency's total liability under this indemnity shall not exceed Two Hundred and Fifty Thousand Dollars ($250,000.00), and (ii) except as to any ongoing remediation systems in place as of the issuance of a Certificate of Completion for the entire Site (which shall continue to be funded by the Agency up to the amount of the Two Hundred Fifty Thousand Dollars ($250,000.00) Remediation Cost Cap), this indemnity shal expire upon issuance of a Certificate of Completion for all of the Improvements to be constructed by Developer. Except as provided in the preceding two 16 SFh:O:SF•46Agw:DDA4t& 1114.% sentences and Section 211[2], the Developer shall be responsible for remediation of the presence of Hazardous Substances in, on or under the Site, including contaminated soils or ground water, first discovered after the date of the Conveyance, and, - excer s. as provided above, if any Hazardous Substance is discovered on the Site subsequent to the Conveyance, the Developer shall be responsible for its removal, management, or any other acts required by any Applicable Law, court or government agency. 4. Developer indemnity. The Developer, including any and all of its successors in interest (other than the holder of any encumbrance permitted pursuant to the terms of this Agreement), agrees to and shall indemnify, defend, and hold the Agency and the City and their respective officers, employees, representatives and agents harmless from and against all expenses ('including, without limitation, reasonable attorneys' fees and disbursements), Iosses, or liabilities suffered by the Agency or the City by reason of governmental action or third party claims arising out of an), Hazardous Substances brought upon the Site by the Developer in connection with the construction of the Improvements. Upon vesting of title to the Site in the Developer, the Developer, except as otherwise expressly provided in this Agreement, shall assume all responsibility for subsurface zone conditions and soils conditions of the Site, and for any rehabilitation necessary for the construction of the Improvements; and, except as otherwise expressly provided in this Agreement, the Agency makes no other representations or warranties concerning the Site, its suitability for the use intended by the Developer, or the surface or subsurface conditions of the Site. Except as otherwise expressly provided in this Agreement, if the soil conditions of the Site are not in all respects entirely suitable for the use or uses to which the Site will be put, then it is the sole responsibility and obligation of the Developer to take such action as may be necessary to place the Site in a condition suitable for the development of the Site. Nothing in this Section 211 is intended to waive any claim or right the Developer may have against any person or entity, other than the Agency or the City, relating to the physical condition of the Site. 5. Developer Covenants. The Developer agrees to comply with Applicable Laws in all activities using or concerning Hazardous Substances on the Site. The Developer agrees to immediately notify the Agency of the Developees discovery following the Conveyance of any Hazardous Substances on the Site. 6. PMeloner Release. Upon vesting of title to the Site in the Developer, the Developer releases, waives and discharges the Agency and the City and their respective officers, employees, representatives and agents from all present and future claims, demands, suits, Iegal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, present and future, arising out of or in any way connected with the Agency's or the City's ownership of the Site (including, without limitation, ownership of the Site or any portion thereof for the purposes of CERCLA and any other Applicable Law, as those terms are defined in Paragraph 9 below), any condition of environmental contamination on the Site, or the existence of Hazardous Substances in any state on the Site; provided, such environmental contamination of Hazardous Substances were not brought onto the Site by the Agency or City or any person or entity acting on their behalf or at their direction. 17 SFh-O:SFA6A 7*rDDA4g* 129M The Developer acknowledges that it is aware of and familiar with Section 1542 of the California Civil Code which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor." The Developer hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code. Notwithstanding anything in this Section which is or appears to be to the contrary, nothing in this Section shall be construed or understood to limit or waive the obligation of the Agency to fund Remediation of the Site up to the Remediation Cost Cap or to otherwise release the Agency from any express contractual obligations or liabilities imposed upon the Agency pursuant to the terms of this Agreement. 7. Definition . The term "Hazardous Substance" or "Hazardous Substances" shall mean any substance which is listed as "hazardous" or "toxic" in the statutes comprising (or regulations implementing) the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601, et sea., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et sea., ("RCRA"), and California Health and Safety Code Sections 25100, gL=., 25300, gtjea., or 25280, s -M. or which has been, is now, or is later detennined by any federal, state or local agency or court with jurisdiction over the Site to be a hazardous or toxic substance regulated under Applicable Law. The term "Hazardous Substance" or "Hazardous Substances" shall also include, without limitation, the products of any manufacturing activities on the subject property, petroleum wastes, petroleum by- products, asbestos containing materials, and source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended (42 U.S.C. 301 1, gt�ea., as amended). The term "Applicable Law" shall include, but shall not be limited to, CERCLA, RCRA, the Federal Water Pollution Control Act, 33 U.S.C. 1251, gam., the Clean Air Act, 42 U.S.C. 7401, et sc9., California Health and Safety Code Sections 25100, rt sea., 25300, St_M., or 25280, gam., and the regulations thereunder, and any other local, state and/or federal laws or regulations that are applicable to the Site and that govern (i) the existence, cleanup and/or remedy of contamination on property, (ii) the protection of the environment from spilled, deposited or otherwise emplaced contamination; (iii) the control of Hazardous Substances; or (iv) the use, generation, transport, treatment, removal or recovery of Hazardous Substances, including building materials. L. [§ 2121Pteliminaiy Work. Prior to the Conveyance of the Site, representatives of the Developer shall have the right of access to all portions of the Site for which the Agency holds title or over which it has 18 SVm-G:SF %A$rw..DDA-k* 12,11'96 a right of possession or access, at all reasonable times for the purpose of obtaining data and m,ddng surveys and tests necessary to carry out this Agreement, including the investigation of the environmental condition of the Site pursuant to Section 211 hereof and the investigation of all soil, subsoil and geologic conditions on the Site. Any preliminary work undertaken on the Site by the Developer prior to Conveyance of the Site shall be done only after written notice to the Agency Executive Director delivered not less than forty-eight (48) hours prior to the Developer's entry on the Site, and, except as otherwise expressly provided in this Agreement, at the sole expense of the Developer. Except as provided in Section 2I1, the Developer shall save and protect the Agency and the City against any claims resulting from all preliminary work on, access to or use of the Site undertaken pursuant to this Section 212, and, upon termination of this Agreement and written request of the Agency, shall restore the Site to its original condition with respect to any alterations on the Site caused by such investigations. Copies of data, surveys and tests obtained or made by the Developer on the Site pursuant to this Section 212 shall be filed with the Agency within fifteen (15) days aler receipt by the Developer. Any preliminary work by the Developer shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. If this Agreement is terminated for any reason, the Agency shall reimburse the Developer for the costs of any such studies or tests which are not otherwise reimbursed under this Agreement and which the Agency elects, within thirty (34) days after such termination, to retain. If the Agency elects not to retain any such studies, it shall promptly surrender to the Developer the original copy of such study and all copies, reproductions, or copies thereof, and, upon such timely surrender, shall have no reimbursement obligation to the Developer for such studies. If the Agency retains any tests or studies, it shall be without representation or warranty of any kind from the Developer. In no event shall the Developer be required to deliver its internal marketing studies and financial projections under this Section 212. M. [§ 2I3] Conditions Precedent to the QgnvWnce. Prior to and as conditions precedent to the Conveyance of the Site, the Developer and Agency shall complete each of the following by the respective times established therefor in the Schedule of Performance (Attachment No. 6): Deed (Attachment No. 7); (1) Tthe Agency and the Developer shall execute the Grant (2) the Developer shall pay into Escrow the Purchase Price; (3) the Developer shall not be in material default of its obligations under this Agreement (provided that this condition shall only be for the benefit ofy and may be waived by, the Agency); (4) the Agency shall not be in material default of its obligations under this Agreement (provided that this condition shall only be for the benefit oC and may be waived by, the Developer); M Vt S FJs ii:SF-%AVvr. DDA4$& 12I9,96 (5) the Developer shall have obtained all entitlements and land use approvals necessary to develop the Site in the manner contemplated by this Agreement (which shall be final and not subject to further appeal) (hereinafter referred to as the "Land Use Entitlements") and the City shall be prepared, immediately following the Conveyance and subject to payment of any applicable fees, to issue building permits for all of the Improvements to be constructed on the Site; (6) the Agency, by its Executive Director, shall have approved the Developer's evidence of financing for the Site in accordance with Section 215; (7) the Developer shall have provided to the Agency Executive Director insurance certificates conforming to Section 309 of this Agreement; (8) the Site investigation shall have been completed and the Site remediation shall have been completed as provided in Sections 211 [2] and 211 [3] (unless Developer elects to complete Site remediation following the Conveyance); (9) Site clearance and demolition shall have been completed (unless the Developer elects to complete such clearance and demolition following the Conveyance), as provided in Section 307; (10) recordation of the final Subdivision Map and vacation of the Alley Parcel by the City sl`.all have been accomplished; (11) the construction loan, if any, to be secured by the Developer in connection with development of the Site shall be in a position to fund promptly following the Conveyance; and (12) all other conditions to the Conveyance provided in this Agreement and the instructions to the Escrow shall have been satisfied (or waived by the party for whose benefit the condition is provided). The foregoing items together constitute the "Conditions Precedent" to the Conveyance. The foregoing provisions shall not be construed to relieve another party of its responst'biliry for performance of its obligations under this Agreement, nor to limit the non - defaulting party's remedies for the defaulting party's breach of those obligations. OF 6Fh:o:SF-%AVw.DDA4gdr 1251% N. [§ 214]GeneralEian Designation and Zoning of The -Site; Subdivision 'lap Apprgval. The City general plan designation and zoning of the Site subject to zoning variances granted by the City Planning Commission at the time of the execution of this Agreement, are such as to permit development and construction of the Improvements thereon in accordance with the provisions of this Agreement, and the use, operation and maintenance of such Improvements. The Agency shall use its best efforts to assist the Developer to obtain any additional entitlements or land use approvals necessary to develop the Improvements contemplated by this Agreement. The Developer shall be responsible to make appropriate application to the City to satisfy all provisions of the California Subdivision Map Act (Government Code Section 66410, gI M.), to obtain any required conditional use pemut, and to satisfy all other local enactments pursuant to the Subdivision Map Act which are applicable with respect to the assembly and development of the Site. The Agency shall assist and cooperate with the Developer in accomplishing these matters. O. [§ 215]Submissiorsiof Evidence of Financial rgmmitments and Loan QosinQ. As required in this Agreement and within the time established therefor in the Schedule of Performance (Attachment No. 6), the Developer shall submit to the Agency Executive Director evidence that the Developer has obtained the required financing necessary to undertake the development of the Site in accordance with this Agreement. The Developer shall dose said financing concurrently with the Close of Escrow for the Site. Within fifteen (15) days after submission, the Agency Executive Director shall approve or disapprove such evidence of financing. Approval shall not be unreasonably withheld or conditioned. If the Agency Executive Director shall disapprove any such evidence of financing, the Agency Executive Director shall do so by written notice to the Developer stating the reasons for such disapproval and, if such disapproval is authorized by this Agreement, the Developer shall promptly attempt to obtain and submit to the Agency Executive Director new evidence of financing. The Agency Executive Director shall approve or disapprove such new evidence of financing in the same manner and within the same time established in this Section 215 for the approval or disapproval of the evidence of financing as initially submitted to the Agency Executive Director. Such evidence of financing shall include the following: 1. A copy of a commitment obtained by the Developer for the mortgage loan or loans for financing to fund the construction of the Project. The commitment for financing shall be in such form and content acceptable to the Agency as reasonably evidences it legally binding, firm and enforceable commitment, which may be subject to the construction lender's customary and normal conditions and terms and to preparation of final loan documentation; provided, however, this formal commitment shall not be required if the Developees construction lender does not customarily issue such commitments, and, in that event, the Agency agrees to accept, in lieu of the commitment requirement, evidence of the willingness of the Developer's proposed lender to 21 SF1s:O:3F-%Agrw.DDA4S& 12.9/96 provide the necessary financing, even if such evidence is not legally binding or is of an informal nature; and 2. A copy of the contract between the Developer and one or more general contractors for the construction of the applicable Improvements, certified by the Developer to be a true and correct copy thereof, provided, this provision shall not apply if the Developer elects to act as its own general contractor for the Improvements. 3. The Developer has already provided to the Executive Director of the Agency a financial statement and/or other documentation satisfactory to the Agency as evidence of other sources of capital sufficient to demonstrate that the Developer has adequate funds to cover the difference, if any, between construction costs and the financing authorized by any contemplated mortgage loans. P. [§ 216]RR1. cation. The Agency has performed or will perform all relocation obligations, at its sole cost, required by law as a result of the execution of this Agreement and the construction of the Improvements. Q. [§217]--Attached herete-amf4mwperated4wein Real Estate Taxes and Assessed Valuations a. Ad valorem taxes and assessments, if any, on the Site, levied, assessed, or imposed for any period prior to the Conveyance, shall be borne by the Agency. All such ad valorem taxes and assessments levied or imposed for any period after the Conveyance shall be paid by the Developer. b. After the Conveyance and prior to issuance of the Certificate of Completion for the Site, the Developer shall make no appeal or challenge of an assessment of the fair market value of the Site for property tax purposes that would result in reducing the assessed value below Two Million One Hundred Fifty Nine Thousand Dollars ($2,159,000.00). C. Upon the issuance of the Certificate of Completion for the Site and for the following seven (7) years, the Developer and its successors and assigns shall make no appeal or challenge of an assessment of the fair market value of the Commercial Lots for property tax purposes that would result in reducing the assessed value below Seven Million Five Hundred Thousand Dollars (57,500,000.00), as aggregated across the Commercial Lots. The foregoing shall not prevent a reassessment below Seven Million Five Hundred 22 3F1a:o:5F-%Agoe:DDA4&* 1W 96 Thousand Dollars ($7,500,000.00) in cases of damage or destruction of all or a portion of the Improvements on the Commercial Lots, pending reconstruction of the Improvements. The assessed value may be spread across the Commercial Lots on any basis, so long as the aggregate value is met. Except for temporary reduction in the event of damage or destruction as set forth above, should the assessed value of the Commercial Lots be reduced such that the total assessed value of the Commercial Lots is less than Five Million Dollars ($5,000,000.00) as aggregated across the Commercial Lots, then the Developer and its successors and assigns shall agree to an increase in assessed value to not less than Five Million Dollars ($5,000,000.00). The foregoing shall apply to all transfers, assignments and bankruptcy proceedings, but shall terminate in the case of a transfer due to a foreclosure or deed in lieu of foreclosure to a commercial lender unaffiliated to Developer. Upon the transfer of all interest in the Site by Developer or any successor to an unaffiliated entity, the transferor shall have no further liability with respect to events occurring after the date of transfer. Following the seventy (7th) anniversary of the initial issuance of a Certificate of Completion on the Site, Agency shall, at Developer's request, execute, acknowledge and deliver to Developer a document, in recordable form, acknowledging the termination of the provisions of this Section 217 and that those provisions are of no further force or effect. III. [§ 300]DEVELOP ffiNT OF THE SITE. A. [§ 30I]Deveiopment of the Site. 23 SFALQSF %AV=:DDAdg& 12.9/96 1. [§ 302]S-cope of.Dgvelopment. The Site shall be developed as provided in the "Scope of Development" which is attached hereto as Attachment No. 3 and is incorporated herein. The development of the Site shall include both the public improvements and private improvements on the Site and the public improvements off -site which are required to be constructed by the Developer pursuant to the terms of the Scope of Development (collectively, the "Improvements"). Upon the completion of the Conveyance, the Developer shall commence and complete construction of the Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 6). The development shall conform to any plans and specifications approved by the City and/or Agency, and shall incorporate or show compliance with all mitigation measures provided for by this Agreement or other applicable approvals consistent with the terms of this Agreement. 2. [§ 303]it Plan. In connection with this Agreement, the Developer has prepared and submitted to the Agency evsl a Site Plan and related documents which conform to requirements of the Agency and4he-Gi'ty and which contain the overall plan for development of the Site in sufficient detail to enable the Agency and -the -City to evaluate the proposal for conformity to the -Fegtt+re this Agreement. The Site shall be developed as established in this Agreement, and such documents, except as changes may be mutually agreed upon between the Developer, and the Agency and the-C-ity in writing. 3. 1§ 304)Con-struction Drawings and Related Documents. By the time set forth therefor in the Schedule of Performance (Attachment No. 6), the Developer shall prepare and submit to the City and Agency Executive Director construction drawings, landscape plans, and related documents for development of the Improvements. Any items so submitted and approved in writing by the Agency Executive Director shall not be subject to subsequent disapproval by the Agency Executive Director. Any disapproval shall state in writing all of the reasons for such disapproval. Any items properly disapproved by the Agency Executive Director shall be revised and resubmitted to the Agency Executive Director as soon as reasonably possible. The landscaping and finished grading plans shall be prepared by a professional landscape architect or registered civil engineer who may be affiliated with the same firm as the Developer's architect or civil engineer. During the preparation of all such drawings and plans, staff of the Agency and the Developer shall hold regular progress meetings to coordinate the preparation of, submission to, and review of drawings, plans and related documents by the Agency Executive Director. The 24 SFh:OSF 96ASm:DDA4&* 119M staff of the Agency and the Developer shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the Agency Executive Director can receive prompt and speedy consideration. Following approval of such plans by the Executive Director of the Agency, they shall be processed by the City in connection with the issuance of grading, demolition, building and other like permits, as applicable. The Agency shall assist the Developer in securing the prompt processing of such plans and permits by the City. Nothing in this Section shall be construed as preempting or waiving any applicable planning review, public works, design review or other like requirements of the City. 4. [§ 305]Reviewand Approval f Construction Drawin nd Related Documents. The Executive Director of the Agency shall have the right of architectural and planning review and approval of all plans and submissions submitted pursuant to Section 304, including any changes therein; provided, that the Agency Executive Director shall not unreasonably withhold his approval of any such plans and submissions, and shall approve or disapprove such plans and submissions within the time set forth in the Schedule of Performance. The Agency Executive Director shall not withhold approval of any plans which are a Iogical evolution of any previously approved plans and site drawings; nor shall the Agency Executive Director require modifications to any proposed plans that would require such .plans to conflict with any previously approved plans or site drawings. In the event of any inconsistency between any site plans or preliminary plans or construction drawings and any final plans approved by the Agency Executive Director, such final plans shall control. Subject to the above, during each stage of the processing for the Improvements, the Agency shall have the right to require reasonable additional information and shall advise the Developer if any submittal of puns or drawings is not complete or not in accordance with Agency procedures. If the Agency Executive Director reasonably determines that such a submittal to the Agency is not complete or not in accordance with such procedures, such tender shall not be deemed to constitute a submittal for purposes of satisfying the Schedule of Performance (Attachment No. b). If the Developer desires to make any substantial changes in the construction plans after their approval by the Agency Executive Director, the Developer shall submit the proposed Change to the Agency Executive Director for his approval. If the construction plans, as modified by the proposed change, conform to the requirements of this Section and the Scope of Development (Attachment No. 3) the Agency Executive Director shall approve the proposed change and notify the Developer in writing within 30 days after submission to the Agency Executive Director. If any revisions to any plans approved by the Agency Executive Director are required by any governmental, public or quasi -public body, official, agency, department, bureau or entity having jurisdiction over the Site, then the Developer and the Agency Executive Director 25 sf-O:sea6Agw:baA4Vk 129&6 shall cooperate in efforts to obtain a waiver of such requirement or, in the absence thereof, shall revise the plans as necessary to meet such requirements. The Agency agrees, upon request from time to time by the Developer, to use its best efforts to cause the City to obtain an outside plan checker, at the Developer's expense, to expedite processing of Site approvals and permits. In addition, the Agency agrees, if requested by the Developer, to use its best efforts to cause the City to retain an independent engineer(s), at the Developer's expense, to expedite processing of the tentative map for the Site, and to retain an independent electrical inspector(s) and any other component system inspector(s) designated by the Developer, at the Developer's expense, to expedite inspections and approvals for the improvements to be constructed on the Site. If an outside plan checker(s), engineers) or inspector(s) is (are) retained at the Developer's request, the Agency shall use its best efforts to cause the City to submit such persons for the Developer's reasonable prior approval, prior to selection of such outside plan checker(s), engineer(s) or inspector(s) ) eF inspmter(s)y4o4he e for he-p"ent e€-such-bills. 5. R 3051Cost ofDgvelopment. Except as otherwise provided in this Agreement, all costs for planning, designing, and constructing the Improvements shall be borne exclusively by the Developer. Except as otherwise provided in this Agreement, the Developer shall also bear all costs related to discharging the duties of the Developer set forth in this Agreement. The Developer assumes the responsibility to construct and shall let contracts for or cause to be constructed all "Off -Site Public Improvements" which are required by City to be constructed in connection with the Developer's improvement of the Site. The Off -Site Public Improvements that the Developer is to construct or cause to be constructed are attached to the Scope of Development (Attachment No. 3). If any "Additional Off -Site Improvements" (as defined below) are validly required by the Agency or the City, the Developer shall, subject to the limitations below, be obligated to construct or cause the construction of such improvements and the Agency shall reimburse the Developer for all "Expenses" (as defined below) incurred in connection with planning, designing and constructing of such improvements. If the Agency or the City requires the Developer to construct any Additional Off -Site Improvements, the Developer shall promptly obtain an estimate of the cost of designing and constructing such improvements and shall deliver such estimate to the Agency. If the Agency still wishes to have the Developer proceed with the design and construction of such improvements, it shall, within thirty (30) days after receipt of such estimate, approve the scope of such work and the proposed costs thereof (together with a contingency for specified types and amounts of cost increases or overruns). If the Agency disapproves the proposed Additional Off -Site Improvements work within that period, then the Developer shall have no obligation to construct the applicable Additional Off -Site Improvements. The Agency shall pay to the Developer all Expenses incurred by the Developer in - connection with the Additional Off Site Improvements not later than thirty (30) days after the Developers submission of (i) a signed demand for payment from the Developer certifying that the work for which 25 SFh Q:SF-%AVw:DDA4g& 119/% payment is requested has been performed, and (ii) a certificate, opinion or other similar document from an architect or engineer acceptable to both the Developer and the Agency, in their reasonable discretion ("Approved Architect") (which certificate, opinion, advice or approval may rely upon the certificate, opinion, advice or approval of other licensed architects, engineers or government officials and may contain reasonable and customary assumptions or qualifications) stating that the work for which payment is requested has been performed. If such Expenses are not paid by the Agency to the Developer when due, they shall thereafter bear interest at the Agreed Interest Rate from the date due until the date paid. "Additional Off -Site Improvements" shall mean all improvements or work located outside the legal lot Line of the Site ("Boundary of the Site") as shown on the Subdivision Map, or within the area of the Alley Parcel which is to be vacated in connection with development of the Site, which are not expressly identified in the Scope of Development as included within the maximum required Off -Site Public Improvements, including, without limitation, all such street, sewer, water, storm drain, CATV, gas, electric, telephone and other utility improvements and/or relocations required outside the Boundary of the Site or in the Alley Parcel. Notwithstanding anything herein which is or appears to be to the contrary, the "Additional Off -Site Improvements" shall include any and all decorative paving or pavement required by the Agency or the City to be installed by the Developer outside the Boundary of the Site. The *Expenses" of constructing any Additional Off -Site Improvements shall mean all direct and indirect design, planning and construction costs, expenses or fees incurred in connection with any Additional Off -Site Improvements, including, without limitation, all engineering, legal, consultant, and architectural fees, all permit and bonding fees or costs, all points, fees and other financing costs, all interest charges and/or reserves, all insurance, management and inspection fees and costs, and the Developer's overhead costs, which shall be deemed equal to ten percent (10%) of all other costs and expenses incurred in connection with constructing the Additional Off -Site Improvements. The Agency shall not be responsible for reimbursing the Developer for any payments by the Developer to the Developer or any wholly -owned affiliate of the Developer which are in excess of the amount that would have been paid for such services in an arms length transaction between unrelated third parties acting under the same circumstances. In no event shall the Agency withhold or delay issuance of any Certificate of Completion because of the Developer's failure or refusal to construct any Additional Off -Site Improvements. Subject to the terms of this Agreement, the Developer shall be responsible for all fees associated with development of the Improvements, including, without limitation, traffic, Wary, school facilities and other impact fees. The Agency shall use its best efforts to assist the Developer in its efforts to minimize the amount of such fees. 6. [§ 307]Dgmolition of Site. Pursuant to the Prior DDA, the Agency demolished all buildings existing on the Site. Promptly following execution of this Agreement, the Agency shall complete the clearance of all asphalt, structures, foundations, tanks, and other improvements. 27 SFhfl:SF-%Avw:DDA-h* 119/% Notwithstanding that all costs related to the demolition shall be ultimately borne by the Agency, the Developer may advance such costs on behalf of the Agency as such costs are incurred. All such advances and any other costs incurred by the Developer in connection with such clearance and demolition will be added to and became a part of the Developer Loan described in Section 201 [2] above and shall be deducted from the gross purchase price in connection with the determination of the Purchase Price pursuant to Section 201 [3] above. 7. [§ 3 08] Construction Schedule. Subject to extension pursuant to Section 603, the Developer shall commence and complete the Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 6). 8. [§ 3091Indemni Bodily Inhr,3+ and Proper ,y Damage Insurance. Except as otherwise provided in t1-.is Agreement, the Developer shall defend, assume all responsibility for and hold the Agency and the City, and their respective officers, agents and employees, harmless from all claims or suits for, and damages to, property and injuries to persons, including accidental death (including attorneys fees and costs), which may be caused by any of the Developer's activities under this Agreement, whether such activities or performance thereof be by the Developer or anyone (other than the City or the Agency, or any of their agents, employees or representatives) directly or indirectly employed or contracted with by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement. Prior to commencement of construction on the Site, the Developer shall take out and maintain during the life of this Agreement, a comprehensive liability policy in the amount of Two Mullion Dollars ($2,000,000.00) combined single limit policy, including contractual liability, as shall protect the Developer, the City, and the Agency from claims for such damages. Insurance coverage furnished by the Developer pursuant to this Section 309 shall conform to this Section 309 and shall pertain to all activities on the Site and all work on any OFF Site Public Improvements or any Additional Off -Site Improvements. The Developer shall furnish the Agency a certificate of insurance from the insurer evidencing compliance with this Section 309 and providing that the insurer shall not cancel or modify the policy without thirty (30) days prior written notice to the Agency. The Developer shall give the Agency prompt and timely notice of any claim made or suit instituted with respect to the matters covered by such insurance. Coverage shall be primary and not contributing with any policy or coverage maintained by or obtained by the Agency, and an appropriate endorsement, if available, shall so state. The policy shall contain a waiver of subrogation, if available. The Developer shall comply with all of the provisions of the Workers Compensation Insurance and Safety Acts of the State of California applicable to development of the Site, the applicable provisions of Divisions 4 and S of the California Labor Code, and all amendments thereto, and all similar State or Federal acts or laws which are applicable, and the 28 SF/rGo SF-%AVw.DDA4g* 12/9.''96 Developer shall hold the Agency and the City harmless from any claims arising thereunder from the Developer's failure to so comply. The Developer shall furnish to the Agency a certificate of Workers Compensation insuranc-- providing that the insurer shall not cancel or modify the policy without thirty (30) days prior written notice to the Agency. In the alternative, the Developer may show proof of a certificate of consent to self -insure issued by the Director of Industrial Relations according to California Labor Code Section 3800. 9. [§ 310]Cityand Other Governmental Agency Permit . Before commencement of construction or development of any buildings, structures or other works of improvement upon the Site by the Developer, the Developer shall secure or cause to be secured any and all permits which may be required by the City or any other governmental agency affected by such construction, development or work. Except as otherwise provided by this Agreement, such permits shall be secured at the Developer's own expense. Subject to the terms of this Agreement, it is understood that the Developer is obligated to pay all necessary fees and to timely submit to the City final drawings with final corrections to obtain building permits; the Agency will, without obligation to incur liability or expense therefor, use its best efforts to expedite issuance by the City of building and other required permits and certificates of occupancy for construction that meets the requirements of the Huntington Beach Municipal Code. Subject to the limitations of this Agreement, the Developer shall be required to comply with all conditions of approval of all zoning changes, general plan amendments, subdivision maps, conditional use permits or any other land use approvals and all costs of compliance shall be at the sole expense of the Developer. The Developer shall be required to comply with the requirements of the California Environmental Quality Act, California Public Resources Code Section 21000, 51 M. ("CEQA"). If such compliance with CEQA results in the imposition of any conditions or mitigation measures not already contemplated by this Agreement, then, at the Developer's written election, this Agreement shall terminate and be of no further force or effect, and the Prior DDA shall be reinstated in full force and effect, the parties shall proceed with processing and development of the Improvements contemplated by the Prior DDA, as modified by subsequent City -approved entitlements or plans, as quickly as reasonably possible, and the Agency and the Developer shall be entitled to assert all rights and enforce all obligations arising from or contained in the Prior DDA. 10. [§ 3 I 1]Rights of Access. For the purpose of assuring compliance with this Agreement, representatives of the Agency and the City shall have the right of access to the Site without charges or fees, at normal business hours during the period of construction on the Site for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in constructing the Improvements, so long as they comply with all safety rules and do not interfere with the work of the Developer, or its contractors, agents or representatives. Such representatives of the Agency or of the City shall be those who are so identified in writing by the Director of the Agency. The Agency shall indemnify, defend and hold the Developer, and its Representatives harmless from any Liabilities arising out of the activities of the Agency and the City referred to in this Section 311. 29 3FALO;SF-96Agree- DDA4i* 129196 The Developer shall place and maintain on the Site signs indicating the respective roles of the Developer and the Agency in the construction of the Improvements. The cost of the signs and their installation shall be borne solely by the Developer and shall comply with all applicable City sign codes. 11. [§ 312]Local. State and Fedgrgl haws. The Developer shall perform under this Agreement and carry out its performance under this Agreement, including without limitation the construction of the Improvements, in conformity with all applicable federal .and state laws and local ordinances, including all applicable federal and state labor standards, as to the Site, provided, however, the Developer and its contractors, successors, assigns, transferees, and lessees are not waiving their rights to contest any such laws, rules or standards. 12. [§ 3I3]Anti-Discrimination. Pursuant to Sections 33435 and 33050 of the California Community Redevelopment Law, the Developer, for itself and its successors and assigns, agrees that in the construction of Improvements on the Site or other performance under this Agreement, the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, ancestry, or national origin. �+7 SF t,GSF-%Avvr.DDA4j* 12J9A16 B. [§ 314]Ms+rtgage. Deed of Trust. Sale and Lease -Back Financing,; Rights of Holder. 1. [§ 3151No Encumbrances Except Mortgages. Deeds of Trust. or Sale and Lease -Back for Develoment. Mortgages, deeds of trust and sales and leases -back are permitted before completion of the construction of the Improvements, but only for the purpose of securing loans of funds to be used for financing the acquisition of the Site, the construction and operation of Improvements on the Site, and any other purposes necessary and appropriate in connection with development under this Agreement. The Developer shall notify the Agency in advance of any mortgage, deed of trust or sale and lease -back financing, if the Developer proposes to enter into the same before issuance of a Certificate of Completion for the affected improvements. The term "mortgage" as used hereinafter shall include a deed of trust and sale and Iease-back. Prior to issuance of a Certificate of Completion for the affected Improvements, the Developer shall not enter into any conveyance for financing (other than any financing approved in connection with the Agency's approval of the Developer's evidence of financing pursuant to Section 215), without the prior written approval of the Agency, which approval the Agency agrees to give if any such conveyance for financing is given to a responsible financial or lending institution or other financially responsible person or entity and is for the purposes stated above. 2. j§ 316]Holder Not Obligated tQ QQnstruct Improvements. The holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this Agreement to construct or complete the Improvements or to guarantee such construction or completion; nor shall any covenant or any other provision in this Agreement or any grant deed for the Site be construed so to obligate such holder. Nothing in this Agreement shall be construed to permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement: 3. [§ 3I7]Ngtice of Default to o za=_or Deed dTrust Holders; Right to `r. With respect to any mortgage or deed of trust granted by the Developer as provided herein, whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in completion of construction of the Improvements, or otherwise under this Agreement, the Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, within thirty (30) days after expiration of the cure period applicable to the Developer under this Agreement, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage; provided, that if the default cannot with diligence be remedied or cured, or the remedy or cure cannot be commenced, %ithin such thirty (30) clay period, such holder shall have such additional time as is 3I SF's..o:SF-%AVw..DDA Rk ]291% reasonably necessary to remedy or cure such default by the Developer. If such default shall be a default which can only be remedied or cured by such holder upon obtaining possession, such holder shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall have the right to remedy or cure such default after obtaining possession within such time as is reasonably necessary to cure such default. Any such holder shall not be required to cure any default of the Developer which is incurable in order to exercise its rights under this Section 317. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continae the construction or completion of the Improvements (beyond the extent necessary to conserve or protect the Improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement satisfactory to the Agency. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the Improvements to which the lien or title of such holder relates, and submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of Section 322 of this Agreement, to a Certificate of Completion (as therein defined.). 4. [§ 31 B]Failure of Holder to Complete Improvements. In any case where, thirty (34) days after the Developer's uncured default in completion of construction of the Improvements under this Agreement and the holdces receipt of the notice of said default by the Developer in completion of construction of improvements under this Agreement, the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof has not exercised the option to commence curing such default, or, if it has exercised its right to cure such default, such holder is not proceeding diligently with construction, the Agency may purchase the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership of the Site or any part thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: (1) The unpaid mortgage or deed of trust debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (2) AlI expenses -Aith respect to foreclosure; (3) The expenses, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Site or part thereof; (4) The costs of any improvements made by such holder, and (5) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or 32 SF/s OSF-%Avu—DAA4g& 1191% deed of trust debt at the time incurred and such debt had continued in existence to the date of payment by the Agency; less (6) Any income derived by the lender from operations conducted on the Site following the foreclosure (the receipt of principal and interest payments in the ordinary course of the Iender's business shall not constitute income from the purposes of this subsection (6)). 5. [§ 3191Right of the Ag_ n=o_Cure Mortgage or Deed of Trust Default. In the event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the construction of the Improvements on the Site or any part thereof and if the holder of any mortgage or deed of trust has not exercised its option to construct those improvements, the Agency may cure the default. In such event, the Agency shall be entitled to reimbursement from the Developer of all proper costs and expenses associated with and attributable to the curing of the mortgage or deed of trust default or breach of this Agreement by the Developer and incurred by the Agency in curing such default; provided, however, that in exercising its rights under this sentence the Agency shall be required to act in a manner which will mitigate its damages in the event of such breach by the Developer. The Agency shall also be entitled to a lien upon the Site to the extent of such incurred costs and disbursements. Any such Gen shall be subject to the prior construction financing mortgages or deeds of trust. C. [§ 320) - ht of theAgenWo,Satisfy Other Liens on the Site After Title Passes. After the Conveyance of title and prior to the issuance of a Certificate of Completion for the affected portion of the Site, and after the Developer has had written notice and has failed after a reasonable time, but in any event not less than thirty (30) days, to challenge, cure, adequately bond against, or satisfy any liens or encumbrances on the uncompleted portion of the Site which are not otherwise permitted under this Agreement, the Agency shall have the right but no obligation to satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall require the Developer to pay or make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith contests the validity or amount thereof and so long as such delay in payment does not subject the applicable portion of the Site to forfeiture or We, without the right to redeem. D. R 3211AMitional Amrn¢ment. The Agency agrees not to unreasonably withhold approval of any modification or amendment , to this Agreement as may be requested by the holder or prospective holder of any deed of trust or mortgage encumbering any portion of the Site, or any interest therein. The Agency acknowledges that such amendments may, from time to time, be necessary to induce a lender to loan funds in connection with the development or operation of the Site, and that different lenders may have specific requirements or requests relating to receipt of notice, opportunity to cure, and other similar matters pertaining to its security and its remedies upon a 33 SFALG-SF-%Agx:DDA4Vk 12.9196 default by the Developer. Any such modification or amendment to this Agreement shall be prepared by the Developer at no cost to the Agency. E. [§ 322]Q-,rtifigate of Completion. Promptly after the completion of all of the Improvements to be constructed on the Site (excluding any tenant improvements) in conformity with this Agreement (as determined by the Executive Director of the Agency), upon the uTitten request of the Developer, the Executive Director of the Agency shall furnish the Developer with a Certificate of Completion (in the form attached hereto as Attachment No. 9) for the Site_ Such Certificate of Completion shall be a conclusive determination, of satisfactory completion of the construction required by the Agreement upon the Site and the Certificate of Completion shall so state.. After the recordation of such Certificate of Completion, any party then owning or thereafter purchasing, Ieasing or otherwise acquiring any interest in the Site shall not (because of such ownership, purchase, lease or acquisition), incur any obligation or liability under this Agreement, except that such party shall be bound by any then effective covenants contained in the Grant Deed applicable to the Site or portion thereof acquired Ey such party. The Certificate of Completion shall be in such form as to permit it to be recorded in the Recordees Office for the County of Orange. If the Agency refuses or fails to furnish a Certificate of Completion as to the Site after written request from the Developer, the Agency shall, within thirty (30) days of the written request, provide the Developer with a written statement of the reasons the Agency refused or failed to furnish the Certificate of Completion. Tt.e statement shall also contain the Agency's opinion of the action the Developer must take to obtain the Certificate of Completion. If the reason for such refusal is confined to the failure to complete specific items of construction, landscaping, and/or other items, all of which shall not affect the ability of the Improvements to be safely inhabited, the Agency will issue its Certificate of Completion upon the posting of a bond or other security acceptable to the Agency by the Developer with the Agency in an amount representing the fair value of the work not yet completed. In no event shall the Agency unreasonably withhold or delay the issuance of a Certificate of Completion. The Certificate of Completion (Attachment No. 9) is not a notice of completion as referred to in Section 3093 of the California Civil Code. The Agency also agrees not to unreasonably withhold a separate Certificate of Completion for any separate Lot within the Site with respect to which the Developer has completed all required Improvements (even though the improvement of the entire Site has not been completed); provided, that the Developer shall not then be in default with respect to construction of the remaining Improvements and the issuance of such partial Certificate of Completion shall not unreasonably interfere with the Agency's expectation of completion of all of the Improvements required to be constructed on the Site. Each such partial Certificate of Completion shall also be in the form of Attachment No. 9 and shall, with respect to the Lot affected by the partial Certificate of Completion, have the same purpose and effect as the Certificate of Completion for the entire Site has with respect to the entire Site. 34 SFh.-0:SF-%AVe--DVA40 M91% Issuance of the Certificate of Completion shall be an administrative act and is hereby authorized by action of the Executive Director without the necessity for separate approval by the Agency Board. IV. [§ 4001USE OF THE SITE. A. [§ 401]Cor.struction of Improvement.. In accordance with the terms of this Agreement, the Developer shall develop on and adjacent to the Site all on -site ilmprovements and those Off -Site Public Improvements required by the City to be constructed in connection with the on -site improvements pursuant to the terms of this Agreement, including the Scope. of Development (Attachment No. 3). B. [§ 402]�iff rdable Hou$inz The Agency shall be responsible for satisfying outside of the Site all affordable housing requirements arising directly or indirectly from or otherwise related to development of the Site or the construction of the Improvements thereon, regardless of whether such affordable housing requirements arise from state laws or regulations, City ordinances, requirements or conditions, or from any other source or cause. The Agency shall indemnify, defend and hold the Developer and the Site hzrmless against any affordable housing requirements applicable to the Site or Improvements, and in no event shall the Developer be required to create, fund or assist in any way with the provision of affordable housing as a result of its development of the Site. All residential units constructed on the Site may be leased or sold at unrestricted market levels by the Developer. C. [§ 403]Parkin a e. The Developer shall construct a subterranean parking structure (the "Parking Structure") on the Site, as described and set forth in the Scope of Development (Attachment No. 3). With respect to the first 262 parking spaces required for the Site by the Land Use Entitlements, Developer shall satisfy that requirement at its sole cost and expense by constructing those spaces on the Site. If the Land Use Entitlements require provision of more than 262 parking spaces on the Site, Agency may, at its sole discretion, consider assisting the Developer in satisfying any parking requirement not met by Developer's construction of parking spaces on the Site through participation in the In Lieu Fee Parking Program established by Agency Resolution No. 268, or successor resolutions, for no more than 40 additional spaces. D. ' [§ 404]Commercial Develop. The Developer shall develop approximately forty-one thousand (41,000) square feet of commercial space as set forth in the Scope of Development (Attachment No. 3) on the Site. 35 SFALG:9F-96A4xa:DDA4Vk 119/% The Developer shall, from time to time, meet and consult with the Agency concerning development and implementation of a marketing plan for the Retail and Office space on the. Site, and shall provide the Agency with copies of such documentation setting forth that plan as the Agency may reasonably request; provided, all such documentation shall be held by the Agency in confidence and the Developer shall not be required to provide any confidential financial information in connection therewith. E. [§ 405]l1 es in Accordance with Redevelopment Plan: Nondiscrimination. The Developer covenants and agrees for itself, and its successors, its assigns, and every successor in interest to the Site or any part thereof that, during the term of the Redevelopment Plan, the Developer and such successor and assigns shall not devote the Site to any uses other than those permitted by the Redevelopment Plan as of the date of this Agreement, the Grant Deed {Attachment No. 7}; and this Agreement, including the Scope of Development attached hereto. The foregoing covenants shall run with the land. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person claiming under or through it 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 Site. The foregoing covenants shall run with the land. The Developer shall refrain from restricting the rental, sale or lease of the property site and lots on the basis of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: a. 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 race, color, creed, religion, marital status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee 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, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." b. In Ieases: "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: 36 SFALQSF %AVW.DDA4s& MIM "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, ancestry or national origin 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." C. In contracts: "There shall be no discrimination against or segregation of any person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee 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, subtenants, sublessees or vendees of the premises." Subject to Sections 322 and 406, the covenants established in this Agreement and the deed of conveyance for the Site shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency, its successors and assigns, the City, and any successor in interest to the Site, or any part thereof. Notwithstanding the issuance of a Certificate of Completion for the Site, the covenants against racial discrimination shall remain in effect in perpetuity. F. (§ 406]Eff.-ct pf Violation of thend ProvisiQnj of this Agreemcrit-After fmpletion-of-Construction. The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private. Such covenants are established by and enforceable only by the Agency, and are not intended to create any third party beneficiary and may not be enforced by any person or entity other than Agency. The Agreement and the covenants shall run in favor of the Agency, without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Site or in the Project Area. The Agency shall have the right, if the Agreement or covenants are breached, to exercise aU rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled. • Notwithstanding any other provisions of this Agreement to the contrary, all of the covenants of the Developer contained in this Agreement with respect to the Site (excepting only the covenants against discrimination) shall terminate and be of no further force or effect as to the Site (or any Lot thereof, as applicable), upon the issuance of a Certificate of Completion for the Site or such Lot, and thereafter all rights, obligations, and covenants of the parties with respect to - the Site or such Lot shall be as set forth in the Grant Deed. Notwithstanding issuance of a Certificate of Completion for the Site, the Developer and its successors and assigns shall still be 37 SF/s.-O:SF %AFm:DDA48* 12M96 required to maintain the Site and perform all other obligations in accordance with the standards set forth in the Grant Died. Issuance of a Certificate of Completion shall not waive, limit, or terminate any obligation of a party to return or release any deposit or security pursuant to the terms of this Agreement, repay any amounts due to the Developer pursuant to the terms of the Developer's Loan described in this Agreement, or to limit the scope of any indemnity obligation which has accrued or which, by its terms, remains applicable following the Certificate of Completion. V. [§ 500]DEFAULTS AND REMEDIES. A. [§ 501]Dgfaults — General. Subject to the extensions of time provided by Section 603, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. A party claiming a default shall give written'notice of default to the other party, specifying the default complained of and the actions required to correct such default. The party asserting the default shall not institute proceedings against the other party if the other party, within thirty (30) days from receipt of such notice, commences to cure, correct or remedy such failure or delay and completes such -cure, correction or remedy as soon as reasonably practicable after receipt of such notice. 38 SFh O:SF-%AVw.D JA4& 1291% B. [§ 502]Legal Actions. 1. [§ 503]lnstitution ofLegal A .lion . In addition to any other rights or remedies and subject to the restrictions in Section 501, either party may institute legal action to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any default, to recover damages for any default, or to obtain any other legal or equitable remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Orange, State of California, in an appropriate municipal court in that county, or in the Federal District Court in the Central District of California. 2. [§ 504]Applicablle Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 3. [§ 505]Acceptance of Service of Process. In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon the managing member of the Developer and shall be valid whether made within or without the State of California or in such other manner as may be provided by law. Service on the foregoing natural person accomplished by or on behalf of the Agency shall be deemed to effect service on the Developer (and all its constituent members) to the greatest extent permitted by law. C. [§ 506]$ights-and Remedies Are Cumut iv . Except as otherwise provided expressly stated 'in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Without limiting the generality of the foregoing, the right of either party under Section 511 or 512 to terminate this Agreement due to a default by the other party shall not be deemed to prohibit or limit the right of the party entitled to termination to sue for specific performance, damages, and all other appropriate relief. D. [§ 5071 na tion Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or 39 SF1&0_SF-%ASrw.DDA-1&* 119,96 deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. E. [§ 508] &rnedies and Rights Prior to Conveyances. 1. [§ 509]Damages. If any default is not cured or commenced to be cured by the defaulting party within the time provided in Section 501 above, then, subject to the limitations of Section 512 below concerning liquidated damages, the defaulting party shall be liable to the other party for any damages caused by such default. 2. [§ 510]Snecific Performance. If any default is not cured or commenced to be cured by the defaulting party within the time provided in Section 501 above, then, subject to the limitations of Section 512 below concerning liquidated damages, the non -defaulting party at its option may thereafter (but not before) commence an action for specific performance of the terms of this Agreement. 3. [§ 511]Terminalion by the Drvelgper Prior to the Conveyance. In the evert that, prior to the Conveyance: a. The Agency does not tender conveyance of the Site, in the manner and condition and by the date established in the Schedule of Performance (Attachment No. 6) for the Conveyance, and any such failure shall not be cured within the period provided in Section 501; b. The Developer determines, in its reasonable discretion that the condition of the soils on or under the Site (other than the presence of Hazardous Substances) is not suitable for the uses to which the Site is to be put, and such condition is not cured to the Developer's reasonable satisfaction within a reasonable period of time by the Agency after written demand by the Developer, or the cost of Remediation of Hazardous Substances exceeds the Remediation Cost Cap, and the Agency will not pay for the costs in excess of the Remediation Cost Cap; C. The Developer is unable, notwithstanding its diligent efforts, to obtain financing, acceptable to the Developer, for the acquisition and development of the Site; d. Any of the Conditions Precedent to the Developers performance of its obligations has not been satisfied (or waived by the Developer) by the time provided in the Schedule of Performance (as the same may be extended pursuant to Section 603) except those conditions which are to be performed by the Developer, or C. Any conditions or mitigation measures requiring the expenditure of funds by the Developer (and not otherwise already imposed on the Developer pursuant to this SF/sU:SFA6Agree:DDA4&* 1219196 Agreement) are required of the Developer in connection with development of the Site as a result of environmental review of the proposed development and Agency fails to assume responsibility for payment of all costs and expenses related thereto; then, at the option of the Developer, upon written notice to the Agency, all provisions of this Agreement shall terminate and be of no further force and effect, the Developer Deposit, all letters of credit, guaranties or other security or funds posted by the Developer, and all funds payable to the Developer upon such termination, shall be immediately returned to or paid to the Developer, as applicable; and thereafter, neither the Agency nor the Developer shall have any further rights against or liability to the other with respect to this Agreement (except that the Developer does not, in such event, waive any legal or equitable rights or remedies it may have against the Agency for the Agency's default or failure to the return any documents or pay any funds to which the Developer is then entitled). 4. [§ 512]Termination by the Agency Prior to the Conv yance. In the event that, prior to the Conveyance: a. The Developer (or any successor in interest) assigns or attempts to assign the Agreement or any rights therein or in the Site in violation of this Agreement and such action is not cured within the period provided in Section 501; or b. There is a change in the ownership of the Developer contrary to the provisions of Section 107 hereof and such action is not cured within the period provided in Section 501; or C. The Developer does not submit certificates of insurance, construction plans, drawings and related documents as required by this Agreement, in the manner and by the dates respectively provided in this Agreement (as the same may be extended pursuant to Section 603) and such default or failure is not cured within the period provided in Section 501; or d. The Developer fails to countersign the Grant Deed (Attachment No. 7) by the time established in the Schedule of Performance (Attachment No. 6) (as the same may be extended pursuant to Section 603) for the Site Conveyance and such failure is not cured within the time provided in Section 501; or C. Any of the Conditions Precedent to the Agencys performance of its obligations has not been satisfied by the time established therefor in the Schedule of Performance (as the same may be extended pursuant to Section 603), except those conditions which are to be performed by the Agency; or_ f. The Developer does not take title to the Site upon tender of conveyance by the Agency pursuant to this Agreement and following satisfaction of all Conditions Precedent thereto, and such failure is not cured within the time provided in Section 501; or 41 SFh O.SF-%AVw.DOA4gdr 11,91% g. The Developer is otherwise in default under this Agreement and such default has not been cured within the time provided in Section 50 t; then, at the option of the Agency, Upon written notice to the Developer, this Agreement shall be terminated, and thereafter neither party shall have any further rights against the other under this Agreement (except that, subject to the limits of the following paragraph, the Agency does not in such event waive any legal or equitable rights or remedies it may have against the Developer for the Developer's default). IN THE EVENT OF TERMINATION UNDER SECTION 512(a) TO (d), INCLUSIVE, (I) OR (g), THE DEVELOPER DEPOSIT OF $50,000, AS SET OUT IN SECTION 109, SHALL BE RETAINED BY THE AGENCY AS LIQUIDATED DAMAGES AS THE SOLE AND EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, OF THE AGENCY HEREUNDER. IN THE EVENT OF TERMINATION, THE AGENCY WOULD SUSTAIN DAMAGES BY REASON THEREOF THE AMOUNT OF WHICH WOULD BE UNCERTAIN. SUCH DAMAGES WOULD INVOLVE SUCH VARIABLE FACTORS AS THE DELAY OR FRUSTRATION OF TAX REVENUES THEREFROM TO THE CITY AND THE AGENCY, THE DELAY OR FAILURE OF THE AGENCY TO FURTHER THE IMPLEMENTATION OF THE REDEVELOPMENT PLAN, AND LOSS OF OPPORTUNITY TO ENGAGE IN OTHER POTENTIAL TRANSACTIONS, RESULTING IN DAMAGE AND LOSS TO THE AGENCY. IT IS IM PILACTTCAL AND EXTREMELY DIFFICULT TO FIX THE AMOUNT OF SUCH DAMAGES TO THE AGENCY, BUT THE PARTIES ARE OF THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE TO THEM THAT THE TOTAL OF SUCH DAMAGES WOULD APPROXIMATELY EQUAL THE AMOUNT OF THE GOOD FAITH DEPOSIT (WITH ANY ACCRUED BUT UNPAID INTEREST THEREON, AND SUCH AMOUNT SHALL BE RETAINED BY THE AGENCY UPON TERMINATION AS THE TOTAL OF ALL LIQUIDATED DAMAGES FOR ANY AND ALL SUCH DEFAULTS AND NOT AS A PENALTY, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES BEING HEREBY EXPRESSLY WANED BY AGENCY. AGENCY HEREBY WANES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. IN THE EVENT THAT THE DEVELOPER SHOULD CHALLENGE THE APPLICABILrI Y OR EFFICACY OF THIS PARAGRAPH OR IF THIS PARAGRAPH SHOULD BE HELD TO BE VOID FOR ANY REASON, THE AGENCY SHALL BE ENTITLED TO THE FULL EXTENT OF DAMAGES OTHERWISE PROVIDED BY LAW. THE DEVELOPER AND THE AGENCY SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR INITIALS BELOW: Developer Initial Here 42 SF1g10;SF-%Av=:Dt M9& 1219% Agency Initial Here In the event of a termination pursuant to Section 512(e), the Developer Deposit shall be returned to the Developer. In the event of a termination under Section 5I2(a) to (g), all letters of credit, guaranties or other security or funds posted by the Developer, other than the Developer Deposit, and ail other funds payable to the Developer upon termination of this Agreement, shall be immediately returned to or paid to the Developer, as applicable. F. [§ 513]Rem dies of he Parties for D fault After the ConvUance. 1. [§ 514]Tean]nation And Damns. After the Conveyance, if any default is not cured within the period provided in Section 501, the defaulting party shall be liable to the other party for any damages caused by such default. 2. [§ 515]Action for Specific erfQrrmance. After the Conveyance, if any default is not cured within the time provided in Section 501, the defaulting party at its option may institute an action for specific performance of the terms of this Agreement. G. [§ 516]RuVJZ gnd Revesting-of.1itlein-the &g ngy er-the Conveyance. Subject to the provisions of Section 322, the Agency has the additional right, at its option, to terminate this Agreement and, upon such termination, to reenter and take possession of the Site, or the portion thereof for which a Certificate of Completion has not been issued, with all Improvements thereof, and terminate and revest in the Agency the estate conveyed to the Developer, if after conveyance of title to the Site and prior to the recordation of a Certificate of Completion for the affected portion of the Site, the Developer (or its successors in interest) shall: 1. Fail to start the construction of the Improvements as required by this Agreement for a period of sixty (60) days after written notice thereof from the Agency (as the same may be extended pursuant to Section 603); or 2. Abandon or substantially suspend construction of the Improvements required by this Agreement once commenced for a period of sixty (60) days after written notice thereof from the Agency (as the same may be extended pursuant to Section 603); or 3. Transfer or suffer any involuntary transfer of the Site, or any part thereof, in violation of this Agreement and such violation shall not be cured within sixty (60) days after the receipt of written Notice thereof by the Agency to tl:e Developer (as the same may be extended pursuant to Section 603); but 4. Notwithstanding the time limitations in subsections (1), (2) and (3), so long as the Developer is proceeding with reasonable diligence to correct or cure any cause set forth in 43 SFh_-o:SF-%Agx:DAAdgdr 1291% such subsections, such time limitations shall be extended for the time necessary to complete such correction or cure. Such right to reenter, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: 1. Any mortgage or deed of trust permitted by this Agreement; or 2. Any rights or interests provided in this Agreement for the protection of the holders of such mortgages or deed of trust. The Grant Deed (Attachment No. 7) shall contain an appropriate reference and provision to give effect to the Agency's right as set forth in this Section 516, under specified circumstances and prior to recordation of any Certificate of Completion, to terminate this Agreement and to reenter and take possession of the applicable portion of the Site, with all Improvements thereon, and to terminate and revest in the Agency the estates conveyed to the Developer in such portion of the Site. Upon revesting in the Agency of title to the affected portion of the Site as provided in this Section 516, the Agency shall use its best efforts to resell the Site as soon and in such manner as the Agency shall find feasible and consistent with the objectives of the state redevelopment law and of the Redevelopment Plan, as it may be amended, to a qualified and responsible party or parties (as determined by the Agency) who will assume the obligation of making or completing the Improvements, or such other improvements in their stead as shall be satisfactory to the Agency or who will assume the ownership, management, and operation of the Site aU in accordance with the uses specified herein and specified for the Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the proceeds thereof shall be applied: 1. First, to reimburse the Agency, on its own behalf or on behalf of the City, for all costs and expenses incurred by the Agency, including, but not limited to, any expenditures by the Agency or the City in connection with the recapture, management and resale of the Site or part thereof (but less ary income derived by the Agency from the Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Site or part thereof which the Developer has not paid (or, in the event the Site is exempt from taxation or assessment or such charges during the period of ownership thereof by the Agency, an amount, equal to such taxes, assessments, or charges as would have been payable if such area were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Site or part thereof at the time of revesting of title thereto in the Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer any expenditures made or obligations incurred with respect to the making or completion or operation and management of the Improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing the Agency by the Developer and its successor or transferee; and in the event additional proceeds are thereafter available, then; 44 S Fh:o:S F-%AS=: DDAdS& 1219/96 2. Second, to reimburse the Developer, its successor or transferee, up to the amount equal to the sum of. (a) the Purchase Price paid to the Agency by the Developer for the Site. and (b) the costs incurred by the Developer for the development of the Site, and for the Improvements existing on the Site at the time of the reentry and repossession, including costs for plans, reports, studies and other like matters; and (c) all funds advanced by Developer in connection with acquisition of the Third Party Parcels or clearance, environmental testing and remediation of the Site; less, (d) any net gains or income withdrawn or made by the Developer from the Site or the Improvements thereon. Any balance remaining after such reimbursements shall be retained by the Agency as its sole property. The rights established in this Section 516 are to be interpreted in fight of the fact that the Agency will convey the Site to the Developer for development and operation for the purposes herein specified and not for speculation in undeveloped land. VI. [§ 6011GENERAI. PROVISIONS. A. [§ 601]Notices. Demands and Communications Between the Parties. Written notices, demands and communications between the Agency and the Developer shall be sufficiently given if delivered by hand, dispatched by reputable overnight courier service, or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer at the addresses specified in Sections 105 and 106, respectively. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section 601. Any written notice, demand or communication shall be deemed received immediately if delivered by hand, shall be deemed received on the first working day foIIowing dispatch if delivered by overnight courier service, and shall be deemed received on the third (3rd) day from the date it is postmarked if delivered by registered or certified mail. B. [§ 602]Cor_,flicts oflnterest. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee of the Agency participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. C. [§ 603jn cir i• Exten&n of JiMrs oUgrfQrmance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in 45 SFh:0:SFA6Agroe:DDA4gdr 12.9r96 this Agreement shall be extended, where delays or defaults are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy, epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather, inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier, acts or omissions of the other party; acts or failures to act of the City of Huntington Beach or any other public or governmental agency or entity (provided that the acts or failures to act of the City shall not excuse performance by the Agency); or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within sixty (60) days of the commencement of the cause, or from delivery of such notice if delivered after such sixty (60) day period. Times of performance under this Agreement may also be extended in writing by the mutual agreement of the Agency and the Developer. D. [§ 604]Non-Liability of,Officials_and Emnloyees_ofthe A=y_and thtl_]eveloper. No member, official or employee of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or the City or for any amount which may become due to the Developer or its successors, or on any obligation under the terms of this Agreement. No officer, director, member, or employee of the Developer, or officer, director, member, or employee of any partner of the Developer, shall be personally liable to the Agency or the City, or any successor in interest, in the event of any default or breach by the Developer or for any amount which may become due to the Agency or the City on any obligation under the terms of this Agreement. E. [§ 605]Entire greement. Waivers. Consent and Approval. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. This Agreement includes pages 1 through R 48 and Attachments 1 through 11 which constitutes the entire understanding and agreement of the parties. Subject to the limitation set forth below, this Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or.their predecessors in interest with respect to all or any part of the subject matter hereof. Notwithstanding anything in this Agreement which is or appears to be to the contrary, in the event that all iLand eUse eEntidements required by the Developer to proceed with the Improvements described in the Scope of Development are not obtained by the date set forth in the Schedule of Performance and in the form contemplated by and acceptable to the Agency and the Developer, then, at the Developer's written election, this Agreement shall 46 SF1rO:SF-%AV=:DDA4g* 1291M terminate and be of no further force or effect, the Prior DDA shall be reinstated in full force and effect, the parties shall proceed with processing and development of the Improvements contemplated by the Prior DDA, as modified by subsequent City -approved entitlements or plans, as quickly as reasonably possible, and the Agency and the Developer shall be entitled to assert all rights and enforce all obligations arising from or contained in the Prior DDA. All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of the Agency and the Developer, and all amendments hereto must be in writing by the appropriate authorities of the Agency and the Developer. Except as otherwise expressly provided herein, when any consent or approval is required from or by another party, such party shall act reasonably and shall not unreasonably withhold or delay such consent or approval. F. [§ 606]Memorandum of Agreement. The parties hereto shall execute and cause a Memorandum of Amended and Restated Disposition and Development Agreement attached hereto as Attachment No. 11 and incorporated herein to be recorded in the Official records of Orange County, California within thirty (30) days after the Effective Date of this Agreement. G. [§ 6071 Counterparts. This Agreement may be executed in counterparts. VH. [§ 700]TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY. This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within forty-five (45) days after the date of execution and submission of one (1) copy of this Agreement by the Developer or this Agreement shall be void, except to the extent that the Developer shall consent in writing to a 47 SF/ U:SF 96AVw:DDA4S* 12/9.96 0 further extension of time for the authorization, execution and delivery of this Agreement. The date of this Agreement shall be the date when it shall have been signed by the Agency. IN WITNESS WHEREOF, the Agency and the Developer have signed this Agreement on the fL ove as of.the date set forth below. DATED: December 16,1996 REVIEWED AND APPROVED: By: Name: Its: Executive Director of the Agency By: Name: Its: Director of Economic Development of the Agency APPROVED AS TO FORM: Agency Attorney SFh:G:SF-%Ager.DDAag* 1219196 "AGENCY" REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic By: Name: Its: Chairman ATTEST: Agency Secretary [SIGNATURES CONTINUED ON NEXT PAGE] 48 JT DEVELOPMENT COMPANY, LLC, California Limited Liability Company By: John Tsai Member John Tillotson Managing Member By: Mike Roberts Member 49 SFh:O:SF-96Agree:DDA4g& 121,196 ATTACHMENT NO.1 SITE MAP F/s: G: SF-96Agree: DDAatal g 12/8/96 Attachment 1 ATTACHMLiT NO.2 LEGAL DESCRIPTION OF THE SITE Block 304 of Huntington Beach Tract, County of Orange, as per map recorded in Book 3, page 35 of Miscellaneous Maps in the Office of the County Recorder of said county. F/s:G.SF-96Agme:DDAaWg 12M 96 Attachment 2 ATTACHMENT NO.3 SCOPE OF DEVELOPMENT The-pFej Improvements shall contain approximately 80,000 square feet of residential space consisting of approximately 48 town home style units ranging from approximately 1,450 to 2,100 square feet in size. The pn�e�Improvements-will include approximately 41,000 square feet of commercial space divided into 11,000 square feet of office on the second floor fronting Main Street, at Ieast 4,500.square feet of restaurant located at the comer of Main Street and Olive Avenue and the balance shall be devoted to retail commercial uses. The configuration of the prejeet Improvements, and the exact number and mix of residential units and commercial sq,=e footage shall be determined pursuant to the terms and conditions of the Land Use Entitlements. The pre}ee Improvements will provide two hundred fifty-two (252) parking spaces, with the exact number of parking spaces to be determined pursuant to the terms and conditions of the Land Use Entitlement, and subject to the Developer's elections pursuant to Section 403 of this Agreement. Parking spaces shall be constructed in a "ramp" configuration which will provide one semi -subterranean level, one level below grade and one level above grade. Access for the commercial parking spaces shall be on Olive and Orange Avenues and the residential parking will have a separate entrance from Fifth Strect. There shall be no vehicular access between the commercial and residential parking areas. The residential portion of the structure will also incorporate the necessary elevators, stairs and lobbi_s to provide secure and convenient access for residents, guests and emergency service providers. Attachment 3 Page 1 of 2 F/s: G:SFAGAgm: RDAatalg 11"6 The pFejeet Improvements will be constructed consistent with the Downtown Design Guidelines adopted by the City and be of a Mediterranean design incorporating specific architectural. details such as smooth stucco walls, balconies with wrought iron railing, tile roofs and tle detailing, awning and at least one water feature. It They shall incorporate landscape and hardscape elements associated with the style. The pre}eeImprovements will incorporate a public art component which may be satisfied through either placed art or performance art programmed on a year round basis. The art component shall be submitted to Agency Staff prior to Certificate of Occupancy on the commercial space. The specific measures necessary to meet the requirement will be determined by the Land Use Entitlements. The projeet Improvements will provide on site and off site improvements including but not limited to curbs, gutters, relocation and undergroun ing of electrical service, relocation of sewers, water, and other public utilities and expansion thereof, as more particularly described in Exhibit A attached hereto (the "Off -Site Public Improvements"). The pwjeo Improvements shall conform to the final conditions of the Land Use Entitlements as approved by the Planning Commission or City Council. conflict with the provisions of this Scope of Developmcnt, prevail. Attachment 3 Page 2 of 2 FIs:G:SF-96AZme: DDAaiafg 111"6 Where the conditions of approval the conditions of approval shall ATTACHMENT NO.4 INTENTIONALLY DFLETFD SF/s:G:SFASAgm: DDAatalg Attachment 4 1?1V% ATTACM, ,ENT NO.5 SFIS:G:SF-%Agm: DDAataig Attachment S 17J&"96 ATTACHM=- NO.6 I. GENERAL PROVISIONS 1. Execution of Agreement by Agency • The Agency shall approve an execute this Agreement and shal deliver one (1) copy thereof to th Developer. 2. Soils and Preliminary Grading Pla Approval by Developer. 3. Submission of Complete Site Pla .Application. Developer submits ful and complete Site PIan application t City. 4. Review of Final Site Plan. Plannin Commission Hearing and Cit Council Hearing. Agency/City t review Final Site Plan and Desig Review Board, Plannin Commission and City Council t approve the concept developmen plan. Approval of conditional us permit, tentative subdivision ma and all other entitlements. * All "days" are calendar days. SF/s:G:SF-96Agree: DDAatalg 12/&96 Within forty-five (45) days* after the date o execution and submission of one (1) copy o this Agreement by the Developer. Within sixty (60) days after the approval o this Agreement by the Agency. Within sixty (60) days after approval of thi Agreement by the Agency. Within ninety (90) days of submission o complete site plan application. Attachment 6 Page I of 4 WER • ► I allisI mem 1.1914m 5. Subdivision Map. Developer is t Developer submits within thirty (30) days o prepare and City is to process o approval of this Agreement by Agency; Cit cause_ to be processed Subdivisio process concurrent with other entitlements. Map for approval for the Site to b sold to Developer. 6. Submission of Complet Within one hundred twenty (120) days fro Construction Drawings an Planning Commission and City Counci Landscaping Plan. Developer steal approval of final site plan, includin submit to the City complet conditional use permit, tentative subdivisio Construction (working) Drawing map and all other entitlements (item & and a Landscaping Plan, Sig above). Program, and Finish Grading Plan. Developer . may submit for a Foundation ancl/or "shell only" permit and, for such permit, need no necessarily have drawings complete showing the details of the residentia units except in conceptual form. Th Landscaping Plan and final Sig Program shall be completed an approval obtained by Develope prior to completion of the Develope Improvements. 7. City Review of Complete Drawing Within twenty-one (21) days after submittal. and Plans. The City shall review th Complete Construction (working Drawings, the Preliminar Landscaping Plan, Preliminary Sig Program, and Finish Grading Pla and provide comments. Attachment 6 Page 2 of 4 SF/s:G:sFA6Agmc: DDAatalg 12/8/96 .8. Revisions, if any. Developer shal prepare • revised Constructio (working) Drawings as necessary • -and submit them to City for review. .9. : Final Review and Complet Drawings. The City shall approv the revisions submitted by th Developer provided that th revisions necessary to accommodat the City comments have been made said approvals constitute the last Cit approvals required in order for th Developer to pull building permits. 10. Developer' Bids Drawings an Obtains Construction Financing. I I . - Opening of Escrow. Agency shal open escrow for conveyance of fe title to the Site by Agency t Developer. 12. Conditions Precedent. Th Developer and Agency shall satisf or cause to be satisfied th Conditions Precedent to th Conveyance. SF/s:G:SFA6Agree:DDAatal g t2M% Within thirty (30) days after receipt of City' comments. Within fourteen (14) days after submittal b Developer. Within one hundred twenty (I20) days afte approval of construction drawings by al applicable governmental authorities. As of this date, Escrow is open pendin completion of Conditions Precedent. Within one hundred twenty (120) days afte approval of construction drawings b City/Agency. Attachment 6 Page 3 of 4 13. Disposition Conveyance. Agent conveys title to the Site to Develope by the Grant Deed (Attachmen No.7). 14. Commencement of Grading an Construction. Developer steal commence construction of th Improvements. The Conveyance shall take place promptl upon satisfaction of the Condition Precedent. Within thirty (30) days after the Conveyance .15. Completion of Construction. The Developer is to use due diligence t Developer shall complet complete the prejeet Improvement construction of all of th within fifteen (15) months afte Improvements. commencement of the Improvements provided, however, the Developer ma request up to three (3) three (3) mont extensions to be granted by the Executiv Director of the Redevelopment Agency. Approval for such three (3) extensions (bu no other extensions) is not to b unreasonably withheld; provided th foregoing construction shall be complete not later than twenty-four (24) months afte the earlier of (i) the commencement of th Improvements or (ii) the time established i this Agreement for the commencement o construction. Attachment 6 Page 4 of 4 SF/s-G:SF-96Agme:DDAaWg 11%96 ATTACHMENT NO.7 RECORDING REQUESTED BY: ) AND WIEN RECORDED MAIL TO: ) The Redevelopment Agency of ) the City of Huntington Beach ) 2000 Main Street ) P.O. Box 190 ) Huntington Beach, CA 92648 ) Attn: Director ) (Space Above for Recorder's Use) The undersigned Grantor declares: Documentary transfer tax is S (X) Computed on full value of property conveyed THE REDEVELOPMENT AGENCY OF THE CITY OF HUNT INGTON BEACH By: Its: Dated: , 19 For a valuable consideration receipt of which is hereby acknowledged, Attachment 7 Page 1 of 13 SVs:G:SF-96Agrec: DDAatalg 1218."96 The REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic, of the State of California, herein called "Grantor", acting to carry out the Subarea 5 of the Redevelopment Plan, hemin eWled " " €ef , herein called the "Project Area," under the Community Redevelopment Law of California, hereby grants to JT DEVELOPMENT COMPANY, LLC, a California limited liability company, herein called "Grantee," the real property hereinafter referred to as "Property," described in Exhibit A attached hereto and incorporated herein, subject to the exceptions, reservations, restrictions and covenants described herein. 1. Grantor excepts and reserves from the conveyance herein described all interest of the Grantor in oil, gas, hydrocarbon substances and minerals of every kind and character lying more than 500 feet below the surface, together with the right to drill into, through, and to use and occupy all parts of the Property lying more than 500 feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said she or other lands, but without, however, any right to use either the surface of the Property or any portion thereof within 500 feet of the surface for any purpose or purposes whatsoever. ' 2. The Property is conveyed in accordance with and subject to the Redevelopment PIan which was approved and adopted by Ordinance No. 2578, as amended by Ordinances No. 2634 and 3343 of the City Council of the City of Huntington Beach, pursuant to that certain Amended and Restated Disposition and Development Agreement entered into between Grantor and Grantee dated December 16, 1996 (the "'DDA'), a copy of which is on file with the Grantor at its offices as a public record and which is incorporated herein by reference. 3. Until July 18, 2018, the Grantee shall not develop or use the Property other than for the development permitted and the uses specified in the applicable provisions of the Redevelopment Plan for the Project Area (or any amendments thereof approved pursuant to paragraph 11 of this Grant Deed). 4. The Property is conveyed to Grantee at a purchase price, herein called "Purchase Price," determined in accordance with the uses permitted. Therefore, Grantee hereby covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Property that the Grantee, such successors and such assigns, shall not develop, maintain, use or operate the Property other than as fellows: a. Within the time provided in the DDA, Grantee shall develop the Property for residential housing, office, and retail uses as set forth in the DDA. Attachment 7 Page 2 of 13 SF1s:G:SF-96AgrmDDAata1g l2M% b. Grantee shall maintain the improvements on the Property in conformity -%Ath the Huntington Beach Municipal Code applicable to the Property under the terms of the DDA, and shall keep the Property free from any accumulation of debris or waste materials. Grantee shall also maintain the required landscaping in a healthy condition. If, at any time, Grantee fails to maintain the Iandscaping as required above, and said condition is not corrected after expiration of thirty (30) days from the date of written notice from the Grantor, either the Grantor; or the City of Huntington Beach may perform the necessary maintenance and Grantee shall pay such costs as are reasonably incurred for such maintenance. 5. Prior to issuance of a Certificate of Completion for the Property, or the applicable Lot thereof, the Grantee shall not place or suffer to be placed on the Property, or the applicable Lot thereof, any lien or encumbrance other than mortgages, deeds of trust, or any other form of conveyance required for financing construction of the improvements on the Property, and any other expenditures necessary and appropriate to develop the Property pursuant to the DDA, and, during such period, the Grantee shall not enter into any such conveyance for financing without prior written approval of Grantor pursuant to the terms of the DDA. No approval will be given for a conveyance of the Property to finance the construction of improvements on real property other than the Property and all off -site improvements required in connection therewith. 6. Prior to issuance of a Certificate of Completion for the Property or the applicable Lot thereof. a. Tl`e Grantor shall have the right at its option to reenter and take possession of the Property, or the applicable Lot thereof, hereby conveyed, with all improvements thereon, and to terminate and revest in the Grantor the Property, or the applicable Lot thereof, hereby conveyed to the Grantee if the Grantee (or its successors in interest) shall: i) Fail to commence the construction of the Improvements as required by paragraph 4(a) of this Grant Deed for a period of sixty (60) days after written notice thereof from the Gruitor, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled; or ii) Abandon or substantially suspend construction of the iImprovements required by the DDA once commenced for a period of sixty (60) days after written notice thereof from the Grantor, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled; or iii) Transfer, or suffer an involuntary transfer of, the Property, or any Lot thereof, in violation of this Grant Deed or the DDA and fail to cure such violation within sixty (60) days after receipt of written notice thereof from the Attachment 7 Page 3of13 5P1s:G:5f-96Agmc:DDAatalg 12V% Grantor, provided that Grantee shall not have obtained an extension or ' postponement to which Grantee msy be entitled; but iv) Notwithstanding the time limitations in subsection (i), (ii), and (iii), so long as Grantee is proceeding with reasonable diligence to correct or cure any cause set forth in such subsections, such time limitations shall be extended for the time necessary to complete such correction or cure. b.- The right to reenter, repossess, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid, or limit: i) Any mortgage or deed of trust or other security interest permitted by the DDA; or ii) Any rights or interests provided by the DDA for the protection of the holders of such mortgages or deeds of trust or other security interests. C. In the event title to the Property or any parcel thereof is revestcd in the Grantor as provided in this paragraph 6, the Grantor shall use its best efforts to resell the Property or any such parcel thereof, as soon and in such manner as the Grantor shall find feasible and consistent with the objectives of state redevelopment law and of the Redevelopment Plan to a qualified party or parties (as determined by the Grantor) who will assume the obligation of making or completing die Improvements or such other improvements in their stead as shall be satisfactory to the Grantor and in accordance vith the uses specified in the DDA for such Property, or parcel thereof, and specified in the Redevelopment Plan. Upon such resale of the Property the proceeds thereof shall be applied: i) First, to reimburse the Grantor, on its own behalf or on behalf of the City of Huntington Beach, for all costs and expenses incurred by the Grantor, including but not limited to, salaries to personnel engaged in such action (but excluding Grantor's general overheats expense) , in connection with the recapture, management, and resale of the Property, or parcel thereof, (but less any income derived by the Grantor from the Property, or parcel thereof, in connection with such management); all taxes, assessments, and water and sewer charges with respect to the Property, or parcel thereof which the Grantee has not paid, (or, in the event the Property is exempt from taxation or assessment of such charges during the period of ownership thereof by the Grantor, an amount, ' . , equal to such taxes, assessments, or charges, as determined by the County assessing official, as would have been payable if the Property were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Property, or parcel thereof, at the time of Attachment 7 Page 4 of 13 SF/s:G:SF-46Agmc:boAata1& 12J&'96 revesting of title thereto in the Grantor or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults, or acts of the Grantee, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the iImprovements on the Property or applicable parcel thereof; and any amounts otherwise owed to the Grantor by the Grantee and its successor or transferee in connection with the DDA; and ii) Second, to reimburse the Grantee, its successor or transferee, up to the amount equal to the sum of (1) the Purchase Price paid to the Grantor by the Grantee for the Property (or allocable to the part thereof) ; and (2) the costs incurred by the Grantee for the development of the Property and for the improvements existing on the Property at the time or reentry and repossession, including costs for plans, reports, studies and other like matters; and (3) all funds advanced by Grantee in connection with acquisition of the Third Party Parcels or clearance, environmental testing and remediation of the Site; less (4) any net gains or income withdrawn or made by the Grantee from the Property or the improvements thereon. iii) Any balance remaining after such reimbursements shall be retained by the Grantor. 7. The Grantee agrees for itself and any successor in interest not to discriminate upon the basis of race, color, creed or national origin in the sale, lease, or rental or in the use or occupancy of the Property hereby conveyed or any part thereof. Grantee covenants by and for itself, its successors, 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 race, color, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy., tenure, or enjoyment of the Property, nor shall the Grantee itself or any person claiming under or through it, 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, sub -tenants, sublessees, or vendees in the Property. The foregoing covenants shall run with the land. 8. Prior to the issuance of the Certificate of Completion of the Property (as defined in the DDA), the Grantee shall make no appeal or challenge of an assessment of the fair market value of the Property for property tax purposes that would result in reducing the assessed value below Two Million One Hundred Fifty Nine Thousand Dollars ($2,159,000.00). Attachment 7 Page 5 of 13 s F/xG: $F-96Agrcc: DDAatalg 121"6 9. . Upon the assurance of the Certificate of Completion for the Property pursuant to the DDA and for the following seven (7) years, the Grantee and its successors and assigns shall make no appeal or challenge of an assessment -of the fair market value of the "Commercial Lots" (as defined in the DDA) for property tax purposes that would result in reducing the assessed value below Seven Million Five Hundred Thousand Dollars ($7,500,000.00), as aggregated across the Commercial Lots. The foregoing shall not prevent a reassessment below Seven Million Five Hundred Thousand Dollars ($7,500,000.00) in cases of damage or destruction of all or a portion of the Improvements on the Commercial Lots, pending reconstruction of the • Improvements. The assessed value may be spread across the Commercial Lots on any basis, so long as the aggregate value is met. Should the assessed value of the Commercial Lots be reduced such -that the total assessed value of the Commercial Lots is less than Five Million Dollars $5,000,000.00) as aggregated across the Commercial Lots, then the Grantee and its successors and assigns shall agree to an increase in assessed value to not less than Five Million Dollars ($5,000,000.00). The foregoing shall apply to all transfers, assignments and bankruptcy proceedings, but shall terminate in the case of a transfer due to a foreclosure or deed in lieu of foreclosure to a commercial lender unaffiliated to Grantee. Upon the transfer of all interest in the Property by Grantee or any successor to an unaffiliated entity, the transferor shall have no further liability with respect to events occurring after the date of transfer. Following the seventh (7th) anniversary of the initial issuance of the Certificate of Completion for the Property, Grantor shall, at Grantee's request, execute, acknowledge and deliver to Grantee a document, in recordable form, acknowledging the termination of the provisions of this paragraph, and that these provisions are of no further force or effect. $10. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the Iien or charge of any mortgage or deed of trust or security interest permitted by paragraph 5 of this Grant Deed or the DDA; provided, however, that any subsequent owner of the Property shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such ownees title was acquired by foreclosure, deed in lieu of foreclosure, trust sale or otherwise. Attachment 7 Page 6 of 13 S F/s:G:S FA6Agm:DDAaL-Jg 1ZIM 911. All covenants contained in this Grant Deed shall be covenants running with the land. Grantee is obligated to develop the Improvements on the Property and the covenants contained in paragraphs 5 and 6 shall terminate and shall become null and void upon recordation of a Certificate of Completion issued by Grantor for the Property, or the applicable Lot therein. Every covenant against discrimination contained in paragraph 7 of this Grant Deed shall remain in effect in perpetuity. 4-012. All covenants without regard to technical classification or designation shall be binding for the benefit of the Grantor, and such covenants shall run in favor of the Grantor for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or remains an owner of any land or interest therein to which such covenants relate. Subject to the applicable cure periods as set forth in Section 501 of the DDA, the Grantor, in the event of any breach of any such covenants, shall have the right to exercise all rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. 4413. Both before and after recordation of a Certificate of Completion, both Grantor, its successors and assigns, and Grantee, and its successors and assigns, shall have the right to consent and agree to changes in, or to eliminate in whole or in part, any of the exceptions, reservations, restrictions or covenants contained in this Grant Deed without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. The covenants contained in this Grant Deed, without regard to technical classification shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty. Any amendments to the Redevelopment Plan which change the uses or development permitted on the Property, or otherwise change any of the restrictions or controls that apply to the Property, shall require. the written consent of Grantee, or the successors and assigns of Grantee in and to all of the fee title to the Property, but any such amendment shall not require the consent of any tenant, Iessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. All capitalized terms not otherwise defined in this Grant Deed shall have the meaning prescribed for that term in the DDA. Attachment 7 Page 7 of 13 SFls:G:SF-96Ag v:DDAaWg 12W06 IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on their behalf by their respective officers hereunto duly authorized, this day of ,199 • THE REDEVELOPMENT AGENCY OF THE CITY OF HUTTI'INGTON BEACH, a public body corporate and politic By: Chairman By: Executive Director ATTEST: Secretary [Signatures Continued on Next Page] Attachment 7 Page 8 of 13 SF/s:G:SF-96Agree:DDAatal g 11%96 The undersigned Grantee accepts title subject to the covenants hereinabove set forth. • JT DEVELOPMENT COMPANY, LLC, a California limited liability company By: John Tillotson By: John Tsai By: Mike Roberts Attachment 7 Page 9 of 13 SF/s:G:SF-%ASmc:DDAasalg l2/B/96 STATE OF CALIFORNIA ) ) ss. COUNTY OF. ORANGE } On- ,1996, before me, Notary Public personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me *At the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of ,199� before me, the undersigned, a Not i y Public in and for said State, personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public Attachment 7 Page 10 of 13 SF/S:G:SF 96Agrcc DDAatalg 121&96 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On' before me, the undersigned, a Notary Public in and for ' said State, personally appeared . personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIF0FN-lA ) ) ss. COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared _ _ , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the withir, instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seat. Signature of Notary Public Attachment 7 Page I of 13 $F/s:G:SF-+96Ag=:DDAa1a1g 12/M STATE OF CALIFOPNIA ) ) ss. COUNTY OF ORANGE ) On- _ , before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachment 7 Page 12 of 13 SF/s:G:SF-96Agree:DDAataig t 2IM6 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Attachment 7 Page 13 of 13 SF/s:G:SF-96Agree:DDAatalg 121M SF/s:G:SF-96Agree:DDAsWg Attachment E 12AN6 ATTACHMENT NO. S ENVIRONMENTAL CONSULTANT_ REPORT (1) ATTACHMENT NO.9 RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: (Space above for Recorder's Use) This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. TTIE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By: Its: Dated: . I9 A. On or about , the Redevelopment Agency of the City of Huntington. Beach, a public body, corporate and politic, hereinafter referred to as "Agency," entered into an Amended and Restated Disposition and Development Agreement (the "Agreement') with ]T Development Company, I.LC, a California limited liability company (the "Developer"), which Agreement provides for the acquisition, disposition, and development of certain real property (the "Site") situated in the City of Huntington Beach, California, and more Attachment 9 Page 1 of 6 SFIs.G:SF %Agree: DDAatalg Atmhment 9 1 Z`8196 particularly described en Exhibit "A" attached hereto and made a part hereof by this reference. As required in the Agreement and as referenced in the Grant Deed, the Agency shall furnish the Developer with a Certificate of Completion upon completion of construction, which Certificate shall be in such form as to permit it to be recorded in the Recorder's Office of Orange County. B. The Agency has conclusively determined that the construction on the Site described hereinabove required by the Agreement and the Grant Deed (the "Construction") has been satisfactorily completed. NOW, THEREFORE, the parties hereto certify as follows: 1. As pros ided in the Agreement, the Agency does hereby certify that the Construction has been fully and satisfactorily performed and completed in compliance with the Agreement and the Grant Deed. 2. The conditions upon Developer and all obligations of Developer under the Agreement are discharged, except as set forth in the Agreement. 3. Nothing contained in this instrum:nt shall modify in any other way any other provisions of the Grant Deed executed and recorded pursuant to the Agreement. 4. After recordation of this Certificate of Completion, any person or entity then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the Property will not (because of such ownership, purchase, lease, or acquisition) incur any obligation or liability under the Agreement, except that such party shall be bound by any and all of the covenants, conditions, and restrictions of the Grant Deed or the Agreement which expressly survive such recordation. S. This Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the improvements to the Property, nor any part thereof. This Certificate of Completion is not a notice of completion referred to in Section 3093 of the California Civil Code. 6. The Recitals above are incorporated in full as part of the substantive text of this Certificate of Completion. Attachment 9 Page 2 of 6 SF/s:QS F-96Agme:DDAatalg Attachment 9 12M 96 IN WITNESS WHEREOF, the Agency has executed this certificate this day of . 19 THE REDEVELOPMENT AGENCY OF THE CITY OF IR NTTNGTON BEACH By: Executive Director ATTEST: Secretary Developer hereby consents to the recording of this Certificate of Completion. JT DEVELOPMENT COMPANY, LLC, a California limited liability company By: John Tillotson By: John Tsai By: Mike Roberts Attachment 9 Page 3 of 6 SF1s:0:SF-96Agmc:DDAatalg Attachment 9 121&'96 .STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of 199r, before me, the undersigned, a Notary Public in and for said State, appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the Executive Director of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Notary Public (SEAL) STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to m. or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such Iimited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachment 9 Page 4 of b SFIs:G:SFA6Agm:DDA2talg Attachment 9 l2L'8/96 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On' before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person 'who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official sm]. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such Iimited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachment 9 Page S of 6 SF1s:G:SF-%Agree:DDAatalg Anachment 9 12/&'9G EXHIBIT A Attachment 9 Page 6 of 6 SFIs:G:SFAGAS=-.DDAatWg Attxhmmt 9 12M% S F/s: G: S F-96A grcc: D DAaW g Attachment 10 12/06 ATTACHMENT NO. 10 (1) ATTACHMENT NO. 11 Recording Requested By and When Recorded Return To: Brown, Winfield & Canzoneri, Inc. 300 South Grand Avenue, Suite 1500 Los Angeles, California 90071-3125 Attention: Dennis S. Roy, Esq. With a copy to City of Huntington Beach 2000 Alain Street Huntington Beach, CA 92648 Attention: City Clerk Above this Line for Recorder's u UIF s. 1 Dili Uf VAUV 1 1- ►11 ; 1 1 Di mawI•Mal ►1 1 6'1312121I : a u�►� (a) partic. This Memorandum of Amended and Restated Disposition and Development Agreement ("Memorandum"), dated for identification purposes as of _ December 16, 1996, is entered into by and between THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic ("Agency") and JT DEVELOPMENT COMPANY, LLC, a California limited liability company ("Developer"). (b) Disposition and Development Age. Agency and Developer have executed an Amended and Rv;tated Disposition and Development Agreement ("DDA") dated for identification purposes as of December 16, 1996covering that certain real property located in the City of Huntington Beach, County of Orange, State of California, more fully described in the Exhibit "A" attached hereto and incorporated herein by this reference. All of the terms, conditions, provisions and covenants of the DDA are Attachment 11 Page 1 of 7 SFIs:G:SF-96Agree: DDAatalg 12IM6 incorporated in this Memorandum by reference as though written out at length herein, and the DDA and this Memorandum shall be deemed to constitute a single instrument or document. .(c) Pt�g pf Memorandum. This Memorandum is prepared for recordation purposes only, and in no way modifies the terms, conditions, provisions and covenants of the DDA. In the event of any inconsistency between the terms, conditions, provisions and covenants of this.Memorandum and the DDA, the terms, conditions, provisions and covenants of the DDA shalt prevail. Attachment 11 Page 2 of 7 SF/s:C:SF-96Agree:flUAata1g 12/"6 The parties have executed this Memorandum at the place and on the dates specified immediately adjacent to their respective signatures. Executed A 19 at "Agency" THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic Executed ' 19 — at SFls:G: SF-96Agrct:DDAatalg 12.'M6 By: Chairman By: Executive Director "Developer" JT DEVELOPMENT COMPANY, LLC, a California limited liability company By: John Tillotson By: By: John Tsai Mike Roberts Attachment 11 Page 3 of 7 STATE OF CALIFORNIA ) • ) ss. COUNTY OF ORANGE ) . On this day of ,199 before me, the undersigned, a Notary Public in and for said State, personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the, (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public ' STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of , 199 before me, the undersigned, a Notary Public in and for said State, personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public Attachment 1 I Page 4 of 7 SF/s:G:SFA6Agme:DDAata1g 1218)96 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) Od _ _ _ _ _ . before me, the undersigned, a Notary Public in and for said State, personally appeared 11 personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA - ) ) ss. COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State:, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the Iimited liability company that executed the 'within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachm-.nt 1 I Page 5 of 7 SF/s:C:SF-96Agme: DDAataf S 12/& 96 STATE OF CALIFOMIA ) ) ss. COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the memb:r of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachment I 1 Page 6 of 7 SF/s:G:SF-96A&mc:DDAaWZ 1IV% M t EXHIBIT "A" r LEGAT, DESCRIPTION SF/s:G:SF-96Agme: VDAatalg 1218196 Attachment 11 Page 7 of 7 Connie Brockway, City Clerk City of Huntington Beach Office of the City Clerk P.O. Box 190 Huntington Beach, CA 92M f pm TA �01 lJ�L �f 3719-T- � ert S her i g15 wnsqua� Ln 102 Hunting rt B 92G 8 5R2 1Y %S" q; Ni] �25Fst PQ BDx SLNVSCT BEAD LEGAL NOTICE - PUBLIC HEARING 9264A--4623 tat ! 1NO1ICE OF PULICIiEARiNG REEORF. TUE CITY COUNCILOF TILE CITY OF HUNIELS :T9V B1 ACI1 NOTICE IS HEREBY GIVEN that on April 7, 1997, at 7:00 PM in the City Council Chambers, 2000 Main Street, I luntindton Beach, the City Council will hold a public heari-ti; on the following planning and zoning item: 0 APPEAL OF PLAISN1NG CO-MMISSiOY'S APPROVAL OF CONDITIONAL USE Pf'RM11 ki% 901 R 3VIT11 SPECIAL PERNMUSiCOASTAI ' i N -I PERMIT NO, 20-39CRY TENTAUVi-T_FUCEAIAP INO. 14352 (11I11NEGATIVE_DECLARATION NO.96-I6 (THIRD BLOCK V • ApptllanL Amigos de Downtown (Robert Bolen, et. a1.) ApVlica nl$; Robert H:dey and City of Huntington Beach Redevelopment Agency Request: To permit a revision to a previously approved plan for development of a mixed use commercial and residential development project. The project includes the following: CUE with5peCial Permits/CDP: To permit the construction of a mixed use project consisting of a total of 41,000 square feet of leaseable floor area. The components of the project consist of approximately 15,000 square feet of retail, alproximately 15,000 square feet of restaurant, approximately 11,000 square feet of office, and 45 ten -story, two -bedroom townhomes. The project includes a request to permit shared residential guest and office parking spaces and as previously approved, to allow the residential square footage to exceed 50% of the commercial square footzge. The project includes the following six special permit requests: 1. To permit portions of the 4 story structure at a height of 54 feet to the midpoint of the roof in lieu of the maximum 45 feet allowed by code and to permit a height of 65 feet for roofline architectural treatment in lieu of the maximum of 55 feet. 2. To permit portions of the ground floor building setbacks on Olive Avenue, Sth Street, and Orange . Avenue > etween zero (0) and rive (5) feet in lieu cf the minimum code required five (5) foot setback. 3. - To permit portions of the upper story setback along Main Street, Olive Avenue, 5th Street, and Orange Avenue between zero (0) and ten (10) feet in lieu of the code required_ average of an additional ten (10) foot setback from the second story facade. ,.4.. To perinit 3,235 square feet of public open space within the net site area in lieu_ of providing the code .- required 4,092 square feet of public open space w ithin the net site area: S. To permit 3,235 square feet of public open space in a linear pattern along the street frontages in lieu of the minimum code required 1,000 square foot plaza within one centralized plaza area. 6. To permit 15,600 square feet of common residential open space with a minimum dimension of 10 feet in lieu of the code required 20,735 squart feet of common residential open space with a minimum dimension of 20 Meet. ' Tentative Tract, to permit a one lot subdivision of a 1.98 acre parcel for condominium purposes and review the condominium plan for 50 commerciaVresidentiai lets and 7 lettered lots. Negative Declaration: to analyze and mitigate the potential environmental impacts associated with the development project described above. Location: Downtown Huntington Beach on a full block bounded by plain Street, Olive Avenue, 5th Street, and Orange Avenue prpjectplannen Jane Madera NOTICE IS HEREBY GIVEN that the above item is located in the non -appealable jurisdiction of the Coastal Zone and includes Coastal Development Permit No. 90-30(R), filed on December 28, 1995, in conjunction with the above request. The Coastal Development Permit hearing consists of a staff report, public hearing, City Council discussion and action. The above item is not appealable to the California Coastal Commission. NOTICE IS HEREBY GIVEN that an initial environmental assessment for the above item was processed and completed in.accordance with the California Quality Aet. it was determined that the above item, with mitigation, swauld not have any significant environmental effects and that a mitigated negative declaration is warranted. Prior to acting on the appeal, the City Council must review and act on the negative declaration. This environmental assessment is on file at the City of Iuntington Beach Community Development Department, 2000 Main Street, and is available for public inspection and comment by contacting she Community Development Department, or by telephoning (714) 536-5271._ .. (97: C407) ON FILE: A copy of the proposed request is on file in the City Clerk's Office, 2000 Main Street, Huntington Beach, California 92648, for inspection by the public. A copy of the staff report will be available to interested parties at the City Clerk's Office after April 3, 1997. ALL INTERESTED PERSONS are invited to attend said hearing and express opinions or submit evidence for or against the application as outlined above. If you challenge the City Council's action in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City at, or prior to, the public hearing. If there are any further questions please call the Planning Division at 536-5271 and refer to the above item. Direct your written communications to the City Clerk. Connie Brockway, City Clerk City of Huntington Beach 2000 Main Street, 2nd Floor Huntington Beach, California 92648 (714)536-5227 (97CC407) AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT (THIRD BLOCK WEST) BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, ("AGENCY-) AND J T DEVELOPMENT COMPANY, LLC {"DEVELOPER") G:SP-96Agrcc:DDA-1209 TABLE OF -CONTENTS 1. [§ 1001 SUBJECT OF AGREEMENT 1 A..I§ 1011 Purpose of Agreement 1 • - B.1§ 1021 The Redevelopment Plan. 2 C.1§ 1031 The Site 2 D.1§ 1041 f artles to they Agreement 2 1. [§ 105] IheArensiX• 2 2. [§ 1061 The Dever 3 3. [§ '107] Prohibition Against Change in Ownership Management andControt of Developer and Prohibition le Sitc 3 E. [§ 1081 Representations by the Developer. 5 F.1§ 1091 Good Faith Deposit 6 II. [§ 200] DISPOSITION OF THE SITE. A.1§ 2011 I!urchase of theSite. B.1§ 2021 Escrow C.1§ 2031 Conveyance of Title andDelivery_ofPQssession D.1§ 2041 Form of Deed for the Conveyance E.1§ 2051 Condition of Title F. [§ 2061 Time for and Place of DeliverX of Deed G. [§ 2071 Recordation of Documents: DisbursementgfFunds. H.1§ 2081 Title insurance 1.1§ 2091 Taxes andAser«mek J. 1§ 2101 Occupants of the Site. K. [§ 2111 Cojadotioll of the Site 1. Disclosure 3. Cleanup 3. Limited -Warranties After Remediation_ Oblisation to Cont ibutc F&G:SF-96Agrcc: DDA-1208 12/13/96 7 7 9 11 12 12 13 13 13 13 14 14 14 14 15 16 16 16 7. Definitions 17 L 112121 Preliminary Jyark 17 M-1§ 2131 18 N..1§ 214]'GenCMt Plan Iles Y,ngtion and Zoning or thr Site, Subdivision Map Aprav_sL 19 O. (§ 2151 Submisl1Qnfyidence of Financial Cam milmOts and Loan Closing 20 P. [§ 2161 Relocation 21 Q.1§2171 Rea] Estate 7mxt3 and MsLUed ValuatioU 21 Ill. [§ 3001 DEVELOPMENT OF THE SITE. 22 A. (§ 3011 Rcyclopment of the Sjam. 22 1. [§ 302] ape of Development 22 2. [§ 303] Site pin. 22 3. [§ 3041 )aDming: and Related Docur�=. 22 4. [§ 3051 Review anj Approval of Construction Driwings and Related Documents. 23 S. [§ 306] Cost of DevelontttenL 24 6. (§ 3071 ncmalitin1i of Site 26 7. [§ 3081 Consfmclion,Schrdule. 26 S. [§ 309) Indemnity. Bodily Injury and ProQeM lbinags Insurance. 26 9. [§ 3101 C11,X and "her Governmental Mency Permits. 27 10. [§ 3111 Rights orAccess. 28 11. [§ 3121 Local, State and Federal Laws_ 28 12. [§ 3131 Anti-Dis:dmination. 28 B.1§ 3141 Mortgage Decd pL'[ruxt. Sale-andLe:ae-liick]Einanei y:Rights of floWers. 28 1. [§ 3151 No Encumbrances Ex Mortrages_ Deeds of Trust_ or Sale and Lease -Back for Develoameni_ 28 2. (§ 3161 Holder Not!Qb igated to Qnsiruct Iml2mvemeals. 29 3. (§ 317] Notice of Wault to Mortgagcc or Deed or-Tmt Holders: Right to cum. 29 4. [§ 3191 Fail= of HQlder3o Complete Xmor mints. 30 S. [§ 3191 Right of the Ag 11SY.to Cum Mortgage oLpced of Tnict Derauft 31 C. [§ 3201 Right of the AZtn ' to Ss 41y Qthsr Liens nn the Site After Titie Passes. 31 D.1§ 3211 Additional Amendment. 31 lw 1§ 3221 Ctrtificatt of Completion. 31 IV. [§ 400] USE OF THE SITE. 33 A.1§ 4011 Construction of Improvements. 33 B. (§ 4021 Affordable housing. 33 G [§ 4031 ParkingCarage. 33 ii FIs:G:SF-96Agrcc;DDA-1208 12/13/96 D. If 4041 Commercial Development. 33 Ell§*4051 Usti In Accordance with Redevelopment P1a: Nondiscrimination. 34 F. [§ 4061 Efkct of Violation of the terms and Provisions pf this Ayrttment AfterAftgr Completion of Construction. 35 V. [§ 5001 DEFAULTS AND REMEDIES. 36 A. [§ 501 Defaults -- csneral. 36 B. If 5021 Ltgal Actions' 36 1. [§ 503] Institution of Le -.al Actions. 36 2. [§ 5041 Applicable Law_ 36 3. [§-505] Acce tancrof Service of Process. 36 G If 506] Rights and Remedies Are Cumulativ 37 D. If 5071 Inaction Not a Waiver of Default. 37 E. If 5081 Remo ies and Rigbj3 Prior o Conveyances. 37 1. [§ 509] Damam 37 2. [§ 510] SpeciG;,Performance. 37 3. [§ 5 11 ] Term inaticnhy the Deycloper Prior to he Conycyance. 37 4. [§ 512] 1crminatin by the Agency Prior to the Convsyance. 39 F.1§ 5131 Remedies of the Parties for-Default-Afterfor-Default-After the Conveyance. 41 I. [§ 514] Terminatien and Damages. 41 2. [§ 5151 Action for Specific Performance. 41 C. If 5161 ReentEy and Reyesting of Title In the AvOcy After the CQnvcyance. 41 VI. [§ 601] GENERAL PROVISIONS. 43 A.1§ 6011 Notic�Demands and Communications Itctween the Pam. 43 B. [§ 602] Conflicts of Interest. 43 C.1§ 6031 Enforced Delay: Exte s11 1onof Times of Pr fo m nce- 44 D.1§ 6041 Non -Liability or Officials and Employees o the Agency and theJhgdo=r. 44 L [§ 6051 Entire Agreement, Waiver. Consent and Arrrova . 44 F.1§ 6061 Memorandum of Agreement. 45 C. If 6071 Counterparts 45 VII. [§ 7001 TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY. 45 F/s: G: S F-96Agrcc: DDA-1209 I/13/96 WHEREAS, the Redevelopment Agency of the City of Huntington Beach a public body, corporate and politic (the "Agency") and Newcomb/Tillotson Development Company, a California -general partnership, previously entered into a Disposition and Development Agreement dated as of March 5, 1991 (hereinafter referred to as the "Prior DDA"); and Newcomb/Tillotson Development Company assigned its interest in the Prior DDA to JT Development Company, LLC, a California limited liability company ("Developel; and Developer and the Agency desire to enter into an amended and restated Disposition and Development Agreement which will supersede and replace the Prior DDA and amend and restate all of the obligations thereunder; NOW, THEREFORE, this Disposition and Development Agreement ("Agreement") is entered into as of the 16th day of December 1996 ("Effective Date"), by and between the Agency and the Developer. The Agency and the Developer hereby agree as follows: I. [§ 100] SUBJECT OF AGREEMENT 1. The purpose of this Agreement is to effectuate the Redevelopment Plan (as hereinafter defined) for the Main -Pier Redevelopment Project (the "Project") by providing for the improvement of certain property situated within Subarea 5 of the Redevelopment Plan (the "Project Area"), by assisting in the assembly, disposition, and development of that real property. The Project is to be developed as a mixed use project pursuant to the Scope of Development set forth in Attachment No.3. These improvements and certain other improvements to be constructed by the Developer constitute the ."Improvements," as more specifically defined in Section 302 of this Agreement Pursuant to this Agreement, a certain portion of the Project Area, hereinafter identified as the "Site" on the "Site Map"I shall be developed and improved by the Developer in accordance with the terms of this Agreement. This Agreement is intended to set forth a comprehensive plan for development of the Site, including the nature, design, processing, financing and construction of the Improvements, for the mutual benefit of the Agency and Developer. The disposition and development of the Site as provided in this Agreement are in the vital and best interests of the City of Huntington Beach (the "City") and the health, safety, morals and welfare of its residents, and are in accord with the public purposes and provisions of all applicable state and local laws and requirements under which the Project has been undertaken. SFIs:G: SF-96Agr"-.DDA-1201; t2l121% . B. [§ 1021 The Redevelopment Plan for the Project Area was approved and adopted by Ordinance No. 2578, as amended by Ordinance Nos. 2634 and 3343, of the City Council of the City. of Huntington Beach. Such ordinances and the Redevelopment Plan as approved and amended (the "Redevelopment Plan") are incorporated herein by reference. Prior to issuance of a Certificate of Completion for the entire Site, the Agency agrees not to amend, modify, or change the Redevelopment Plan for the Project Area in a manner that would affect the uses or development permitted on the Site, the restrictions or controls that apply to the Site, or any other aspect of the use and enjoyment of the Site in the manner contemplated by this Agreement, without the prior written consent of the Developer. Amendments to the Redevelopment Plan applying -to other property in the Project Area shall not require the consent of Developer. C. [§ 103] The, ite. The "Site" is that portion of the Project Area so designated on the "Site Map" which is attached hereto as Attachment No. 1 and incorporated herein by reference. The Site is described in the "Legal Description" which is attached hereto as Attachment No. 2 and incorporated herein by reference. The Site consists of the following parcels of property (collectively, the "Parcels"), which are identified on the Site Map: (i) those certain parcels owned by the Agency (the "Agency Parcels"); and (ii) that certain property, consisting of public alley located within the Site, which will be vacated and abandoned by the City and conveyed to the Developer in connection with redevelopment of the Site (the "Alley Parcel"). It is understood by the Agency and Developer that the existing Site will be subdivided substantially in accordance with a Tentative Tract Map (the "Subdivision Map") to be submitted by the Developer to City. The legal lots created as a result of that subdivision (individually, a "Lot" and, collectively, the "Lots") will consist of separate legal lots containing retail and office uses (individually, a "Commercial Lot' and, collectively, the "Commercial Lots") and separate legal lots containing residential condominium improvements (individually, a "Residential Lot" and, collectively, the "Residential Lots"). b % 1 ' ,.a I 111W.AmfX411141t 1. [§ 105] The Agency. The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California. The principal office of the Agency is located at 2000 Main Street, P.O. Box 190, Huntington Beach, California 92648. 17 S F/s:G: SF-96Ag roe : D DA-1208 12/ 1196 • "Agency", as used in this Agreement, includes the Redevelopment Agency of the City of Huntington Beach and any and all assignees of or successors to its rights, powers and responsibilities. '.Whenever the Agreement refers to approvals or other actions to be taken by the Agency, such approval or other action may be performed by the Executive Director of the Agency or his or her designee. ' 2• . N 1061 nc i2eYr-l. over The Developer is JT Development Company, LLC, a California limited liability company. The principal office and mailing address of the Developer for purposes of this Agreement is 15272 Balsa Chica Street, Huntington Beach, California 92649. The members of JT Development Company are John Tsai, John Tillotson, and Mike Roberts and the managing member is John Tillotson. By executing this Agreement, each person signing on behalf of the Developer warrants and represents to the Agency that the Developer has the full power and authority to enter into this Agreement, that all authorizations required to make this Agreement binding upon the Developer have been obtained, and that the person or persons executing this Agreement on behalf of the Developer are fully authorized to do so. Whenever the tern "Developer" is used in this Agreement, such term shall include any and all nominees, assignees, or successors in interest to the rights and obligations of the original Developer provided for by this Agreement sly s11V in, a 1= a-." Mer, a ma fia �1 ts! • The qualifications and identity of the Developer are of particular interest to the Agency. It is because of these qualifications and identity that the Agency has entered into this Agreement with the Developer. Consequently, prior to the Executive Director of the Agency issuing a Certificate of Completion with respect to the Site, or, as to each Lot within the Site, prior to the Executive Director's issuance of Certificate of Completion with respect to such Lot (as provided in Section 322 below), no person, whether a voluntary or involuntary successor of Developer, shall acquire any rights or powers under this Agreement, nor shall the Developer assign all or any part of this Agreement or the Site, without the prior written approval of the Agency (except as provided below). A voluntary or involuntary sale or transfer of any interest in the Developer or the Site shall be deemed to constitute an assignment or transfer for the purposes of this Section 107, and, except as provided below, the written approval of the Agency shall be required prior to effecting such an assignment or transfer. Any purported transfer, voluntarily or by operation of law, in violation of this Section, shall be absolutely null and void and shall confer no rights whatsoever upon any purported assignee or transferee. The Agency agrees that it will not unreasonably withhold approval of any assignment requiring its consent. SF/s:G:SF-96Agme: DDA-1208 12/1 b96 Notwithstanding the foregoing, Developer shall be entitled to make an assignment which consists of a mortgage, deed of trust, sale and lease -back, or other form of conveyance for financing, provided that such assignment is mad-- to a lender approved by the Agency pursuant to _ Section 215 of this Agreement and is for the purpose of securing a loan of funds to be used solely for ' financing the- direct and indirect costs of constructing and operating the Improvements, including without Iimitation, any hard or soft construction costs, interest, fees, points, reserves or other financing costs, and all costs of planning, designing, constructing, developing, leasing and operating the Improvements to be constructed by the Developer with respect to the Site. Notwithstanding any other provision of this Agreement to the contrary, Developer shall also be entitled, without Agency approval, to make an assignment, sale or transfer of this Agreement (or a portion thereof), the Site (or a portion thereof), or any interest in the Developer, in connection with any of the following: a. ne conveyance or dedication of any portion of the Site to the City of Huntington Beach or any other governmental, public, or quasi -public entity, body or agency, including all public utilities, where such conveyance or dedication facilitates the development of the Site. b. . A transfer of the Site, or any Improvements thereon, and/or the assignment of this Agreement to an entity over which the Developer, the managing member of the Developer, or a wholly owned affiliate of the Developer exercises operational and managerial control, if (i) the purchaser and/or assignee agrees to be bound by the provisions of this Agreement and any other agreements that the Developer and the Agency have executed in connection with the Project, and (ii) the Developer, the managing member of the Developer, or a wholly owned affiliate of the Developer holds more than a fifty percent (5011a) interest in the profits and losses of such purchaser or assignee. C. Any transfer resulting from the death or mental or physical incapacity of any individual. d. Any transfer to a family member or in trust for purposes of estate planning consideration-., provided that an existing managing member of the Developer shall retain exclusive operational management and control of the development of the Site and shall remain responsible for the obligations of the Developer hereunder. C. Any transfer of the Site or any part thereof or interest therein, as a result of the judicial or non judicial foreclosure (or conveyance in lieu thereof) of any encumbrance authorized by this Agreement. f. Any transfer to a lender approved by the Agency in accordance with the right of such lender under its approved encumbrance to acquire an interest in the Site, the Developer, or this Agreement. 4 SF/s:G:SF-96Agrcc:DDA-1208 1211196 g. Any transfer resulting from the leasing to occupancy tenants of that portion of the Improvements to be occupied by such tenants. h. The sale of individual condominium units, the conveyance of common area and easement rights in connection therewith, and the conveyance of fee and easement interests between the Developer and the homeowners association to be created in connection with such condominium interests; provided, that no sale of an individual condominium shall close prior to the issuance of a Certificate of Completion for the applicable Residential Lot. i. Any transfer of an interest in the Developer as long as the managing member of the Developer retains operational management and control over development of the Sit-, provided such transfer does not affect more than sixty percent (60%) of the existing interests in the Developer and the Developer shall remain responsible for the obligations of Developer hereunder. No assignment of the Developer's obligations with respect to the Site for which Agency approval is required, specifically excluding assignments for financing purposes and the types of assignments identified above in subparxgaphs (a) and (c) through (i), inclusive, shall be effective unless and until the proposed assignee executes and delivers to the Agency an agreement in form reasonably satisfactory to the Agency's attorney assuming the obligations of the Developer which have been assigned. Thereafter, the assignor shall remain responsible to the Agency for performance of the obligation assumed by the assignee unless the Agency releases the assignor in writing or all of the requirements in this Section 107 are fully satisfied and the assignor is not then in default under this Agreement, in which case the assignor shall remain responsible to Agency for performance of the obligations arising prior to the effective date of the assignment or transfer, and shall be released only from any obligation or liability arising subsequent to the effective date of that assignment. No consent or approval by the Agency of any assignment or transfer requiring the Agency's approval shall constitute a waiver of the provisions of this Section 107 with respect to subsequent transfers. The Agency shall approve or disapprove of any proposed assignee which requires Agency approval within thirty (30) days after Agency's receipt of a written request therefor. Any disapproval shall be in writing, shall specify the reasons for the disapproval and any steps that must be taken by Developer to secure such approval. The restrictions of this Section shall terminate upon issuance by the Executive Director of the Agency of a Certificate of Completion for the entire Site or, as to each Lot within the Site, upon the issuance by the Executive Director of a Certificate of Completion with respect to said Lot. The Developer represents and warrants to the Agency as follows: 5 SF1s:G:SF-96A9Me:DDA-1248 I V 12/96 1. The Developer is duly established and in good standing under the laws of the State of California and has duly authorized, executed and delivered this Agreement and any and'all other agreements and documents required to be executed and delivered by the Developer in order -to carry out, give effect to, and -consummate the transactions contemplated by this Agreement. • 2. The Developer does not have any material contingent obligations or any material contractual agreements which could materially and adversely affect the ability of the Developer to carry out its obligations hereunder. 3. There are no material Fending or, to Developees best knowledge, threatened, legal proceedings, to which the Developer is or may be made a party or to which any of its property is or tray become subject, which have not been fully disclosed in the material submitted to the Agency, which could materially and adversely affect the ability of the Developer to carry out its obligations hereunder. 4. . There is no action or proceeding pending or, to the Developer's best knowledge, threatened, requesting the dissolution or liquidation of the Developer and there is no action or proceeding pending or, to the Developer's best knowledge, threatened by or against the Developer which could affect the validity and enforceability of the terms of this Agreement, or materially and adversely affect the ability of the Developer to carry out its obligations hereunder. Each of the foregoing items 1 to 4, inclusive, shall be deemed to be an ongoing representation and warranty and shall continue in effect until issuance of a Certificate(s) of Completion for the Site. The Developer shall advise the Agency in writing if there is any change pertaining to any matters set forth or referenced in the foregoing items 1 to 4, inclusive. F. [§ 109]Good Faith DepQsi The Developer has, prior to the approval of this Agreement by the Agency, delivered to the Agency a good faith cash deposit in the amount of Fifty Thousand Dollars ($50,000.00) (the "Developer Deposit") as security for the performance of the obligations of the Developer to be performed prior to the return of the deposit to the Developer, or its retention by the Agency as liquidated damages in accordance with the provisions of this Agreement. The Developer Deposit has been deposited in an interest -bearing account of the Agency in a bank or trust company selected by it. If, notwithstanding the foregoing, Agency fails to deposit the cash in an interest -bearing account, Developer shall notify Agency in writing of such failure, and Agency shall have fifteen (I5) days after receipt of such notice to transfer such Developer Deposit to an interest -bearing account. Agency shall have no liability to Developer for failure to maintain such Developer Deposit in an interest -bearing account until expiration of that fifteen (15) day period. Upon termination of this Agreement as provided in Section 512(a)-(d), (f) or (g) of this Agreement, the Developer Deposit, including all interest payable thereon, or, if a letter of t� SFls:G:SF-96Agrce: DDA-1208 12/12/92 6 credit, guaranty, or other security, the proceeds thereof, shall be retained by the Agency as provided therein Upon termination of this Agreement as provided in Section 511 or 512(e) of this Agreement, the Developer Deposit, and all interest thereon not previously released to Developer, shall -be returned to the Developer by the Agency, as provided therein. The Agency shall be under no obligation to earn any minimum rate of interest on the Developer Deposit. Upon termination of this Agreement, interest earned shall be retained by or returned to the party entitled to the Developer Deposit at that time. If the "Conveyance" (as defined in Section 202) is effected, the Agency shall immediately return the Developer Deposit (together with any interest earned thereon not previously released to Developer) to the Developer, or, at Developer's election, credit the Developer Deposit (together with interest thereon) to the purchase price of the Site. U. [§ 200] DISPOSITION OF THE SITE. . A. [§ 201]1�trchase of the Site. 1. Pursuant to the Prior DDA, the Agency has acquired that portion of the Site referred to in the Prior DDA as the "Third Party Parcels" (hereinafter referred to as the `"Third Party Parcels' ; said parcels are depicted on the Site Map (Attachment No.1)). In order to complete its assembly of the Site, the Agency shall, in accordance with Section 203 below and the Schedule of Performance, cooperate in the vacation by the City of the Alley Parcel. The Agency agrees to use its best efforts to cause the City to undertake or cause to be undertaken and diligently pursue or cause to be pursued all hearings and other actions necessary to cause vacation of the Alley Parcel prior to the Conveyance. The Agency further agrees, promptly upon vacation of the Alley Parcel, to use its best efforts to assemble and obtain the conveyance, as necessary, of all interests required to vest the Agency with fee simple marketable title to the Alley Parcel in accordance with this Agreement so that the Agency will be in a position to vest such title in the Developer as a result of the Conveyance. 2. Pursuant to the Prior DDA, Developer advanced to the Agency One Million Nine Hundred TwentyTwo Thousand Dollars (S1,922,000.00) in connection with acquisition of the Third Party Parcels and Thirty Thousand Fifty -One Dollars (S30,051.00) in connection with environmental investigation of the Site. Said funds, together writh all other funds that may be advanced by Developer for environmental assessment of the Site (Section 211 [2]) and/or demolition of all structures and clearance of all improvements from the Site, if applicable (Section 307), shall constitute a loan from Developer to Agency (the "Developer Loan"). The Developer Loan is currently evidenced by a promissory note, and is currently secured by a first deed of trust encumbering the kiterest of the Agency in the Site (exclusive of the Third Party Parcels). The Agency and the Developer shall promptly execute, acknowledge, and record such additional documentation as may be necessary to evidence and/or secure any 7 SF/s:G:SF-96Agrcc:DDA-1248 IV12/96 additional advance Developer may elect to or be obligated to make with respect to the Developer Loan under the terms of this Agreement. The .Developer Loan shall be immediately payable by the Agency to the Developer upon the termination of this Agreement for any reason, other than the Developer's uncured material default. In the event that this Agreement is terminated, and the Developer is in material default of this Agreement at that time, and such default has already continued beyond the cure period provided by Section 501 hereof, then, notwithstanding such termination; the Developer Loan shall not be repayable until the Agency conveys all or a portion of the Site, or an interest therein, to a new developer for purposes of redevelopment; provided 01 that the Agency shall use its best efforts to locate a successor developer as quickly as possible, and (ii) the Developer Loan shall, in any event, be due and payable in full one (1) year after the Agency's notice to Developer of the termination of this Agreement. If such obligation is not repaid when due, it shall thereafter bear interest at a rate equal to twelve percent (12%) per annurn or the highest rate permitted by law, whichever is less (the "Agreed Interest Rate"). Following the date of this Agreement, Developer shall not be required to make any further advance to the Agency with respect to acquisition of the Third Party Parcels. The outstanding balance of the Developer Loan as of the date of this Agreement is One Million Nine Hundred Fifty -Two Thousand Fifty -One Dollars ($1,952,051.00). Asset forth in Section201[3] below, all amounts comprised within the Developer Loan as of the Closing shall be deducted from the purchase price payable to the Agency. Developer acknowledges that it is not entitled to any further deduction or offset to the purchase price on the basis of other Project costs incurred prior to the date of this Agreement. 3. Provided that the Developer is not then in default of this Agreement, and in accordance with and subject to all of the terms, covenants and conditions of this Agreement, Agency agrees, at or before the time established in the Schedule of Performance (Attachment No. 6), to sell to the Developer, and the Developer agrees to purchase from the Agency, the Site. The purchase price for the Site shall be Two Million One Hundred Fifty -Nine Thousand Dollars ($2,159,000.00), less (a) One Million Nine Hundred Fifty -Two Thousand and Fifty -One Dollars ($1,952,05 I.00), representing the amount of fields advanced by Developer in connection with acquisition of the Third Party Parcels and environmental investigation of the Site to date, and (b) all costs hereafter incurred by Developer pursuant to Section 211 in connection with environmental investigation (but not remediation) of the Site, (c) the amount of funds advanced or incurred by Developer in connection with demolition of all improvements on and clearance of all improvements from the Site pursuant to Section 307 (including the costs of asbestos removal incurred in connection with the demolition) and (d) at Developer's election, the Developer Deposit (together with All interest thereon), (the net amount obtained following such reduction is herein referred to as the "Purchase Price"). The Purchase Price will be paid by Developer to Agency in cash at close of Escrow (as hereinafter defined). 4. In addition to the consideration set forth above, the Developer shall pay all of those costs, charges, fees and expenses hereafter expressly provided to be paid by Developer pursuant to this Agreement and shall, at its cost, provide all of the Improvements required by this Agreement to be provided by the Developer at its cost. 8 SF/s:G:SF-96Agrcc:DDA-1209 12/12196 B.. . [§ 202]Es 'I. The Agency and the Developer have opened an escrow with Orange Coast Title Company (the "Escrow Agent"). The escrow described in this Section 202 shall be referred to as the "Escrow," and the conveyance of title to the Site provided for in this Section 202 shall be referred-lo as the "Conveyance." The "Close of Escrow" shall refer to the Conveyance and shall occur concurrently with the effectuation of that Conveyance. This Agreement constitutes the joint basic escrow instructions of the Agency and the Developer for the Conveyance, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. The Agency and the Developer shall provide such additional escrow instructions as shall be necessary for and consistent with this Agreement. The Escrow Agent is hereby empowered to act under this Agreement, and the Escrow Agent, upon indicating within five (5) days after the opening of the Escrow its acceptance of the provisions of this Section 202, in wridng,'delivered to the Agency and the Developer, shall carry out its duties as Escrow Agent hereunder. 2. - Upon delivery of the Grant Deed (as hereafter defined) to the Escrow Agent by the Agency pursuant to Section 204 of this Agreement, the Escrow Agent shall record such deed when title can be vested in the Developer in accordance with the terms and provisions of this Agreement The Grant Deed shall cover the entire Site. Escrow Agent shall promptly cause the recordation of such Grant Deed and its delivery to the Developer, and, in connection therewith, shall allocate all charges and promtions in accordance with the instructions for this Escrow applicable to the Conveyance. The Developer shall accept conveyance of title as provided in Section 201. The Escrow Agent shall pay any applicable transfer tax. Any insurance policies covering the Site are not to be transferred. 3. The Developer shall pay into the Escrow the following fees, charges and costs promptly after the Escrow Agent has notified the Developer of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for Close of Escrow: a. One-half (1/2) of the Escrow fee; b. That portion of the premium for the title insurance policy to be paid by the Developer as set forth in Section 208 of this Agreement; C. The Purchase Price in cash; d. Any applicable documentary transfer tax and/or stamps; and C. Any other costs customarily allocated to the buyer of real property in the County of Orange. 4. The Agency shall pay into Escrow the following fees, charges and costs 9 SFIs:G:SF-46Agrce:DDA-120& 12/ 12M promptly after the Escrow Agent has notified the Agency of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for Close of Escrow: a. One-half (112) of thc Escrow fee; b. Cost of drawing the deed; C. Recording fees; d. Notary fees; C. That portion of the premium for the title insurance policy to be paid by the Agency as set forth in Section 208 of this Agreement; f. Ad valorem taxes, if any, upon the Site for any time prior to transfer of title; and F. Any other costs customarily allocated to the seller of real property in the County of Orange. - 5. The Agency shall timely and properly execute, acknowledge and deliver the Grant Deed as necessary to convey the entire Site in the manner contemplated in Section 201 and Section 202[2] of this Agreement. The deed shall be substantially in the form of the "Grant Deed" which is attached to this Agreement as Attachment No. 7 (and is incorporated herein). b. The Escrow Agent is authorized to: a. Pay and charge the Agency and Developer, respectively, for any fees, charges and costs payable under this Section 202 in accordance with the terms hereof. Before such payments or charges are made, the Escrow Agency shall notify the Agency and the Developer of the fees, charges and costs necessary to clear title and close the Escrow. b. Disburse funds and deliver the Grant Deed and other documents to the parties entitled thereto when the conditions of this Escrow have been fulfilled by the Agency and the Developer. Funds deposited as part of the Purchase Price shall not be disbursed by the Escrow Agent unless and until the Escrow Agent has recorded the Grant Deed (Attachment No. 7) contemplated by this Agreement and has delivered to the Developer and (if requested by the Agency) the Agency, respectively, a title insurance policy insuring title to the entire Site and conforming to the requirements of Sections 205 and 208 of this Agreement. C. Record any instruments delivered through this Escrow, if necessary or proper, to vest title in the Developer in accordance with the terms and provisions of this Agreement. 10 SFls:G:SF-%AgrccDDA-1209 12/12/96 All funds received in this Escrow shall be deposited by the Escrow Agent, with other escrow funds -of the Escrow Agent in -an interest earning general escrow account or accounts with any state or national bank doing business in the State of California. Such funds may be transferred to any other. interest earning general escrow account or accounts. All disbursements shall be made by check of the Escrow Agent. All adjustments are to be made on the basis of a thirty (30) day month. If this Escrow is not in condition to close on or before the time for conveyance established in Section 206 of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, demand from the Escrow Agent the return of its money, papers or documents deposited with the Escrow Agent. No demand for return shall be recognized until ten (10) days after the Escrow Agent shall have mailed copies of such demand to the other party or parties at the address of its or their principal place or places of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party within the ten (10) day period, in which event the Escrow Agent is authorized to hold all money, papers and documents with respect to the Site until instructed by a mutual agreement of the parties or by a court of competent jurisdiction. If no objection is raised within such ten (10) day period, Escrow shall return all money, papers and documents to the party demanding their return. If, notwithstanding the failure of Escrow to close within the time provided in the Schedule of Performance, no'demand is made on Escrow for the return of money, papers or documents, the Escrow shall be closed as soon as possible. Any amendment to these escrow instructions shall be in writing and signed by both the Agency and the Developer. At the time of any amendment, the parties shall secure the agreement of the Escrow Agent to carry out its duties as Escrow Agent under such amendment. All communications from the Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner established in Section 601 of this Agreement for notices, demands and communications between the Agency and the Developer. The liability of the Escrow Agent in the capacity as escrow holder with respect to the Conveyance is limited to performance of the obligations imposed upon it under Sections 202 through 211, inclusive, of this Agreement. Subject to any extensions of time mutually agreed upon in writing between the Agency and the Developer, the Conveyance shall be completed on or prior to the date specified therefor in the Schedule of Performance (Attachment No. 6). The Schedule of Performance (Attachment No. 6) is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Agency. The Agency and the Developer agree to perform all acts necessary to the conveyance of title in sufficient time for title to be conveyed in accordance with the foregoing provisions. It shall be a condition precedent to Developer's obligations under this 11 SF/s:G:SF-96Agrce:DDA-1208 12/l2'96 -Agreement that the City shall have caused the vacation of the Alley Parcel prior to the Conveyance, and that, concurrent with such Conveyance, record title to the Alley Parcel will be vested in Developer free and clear of all liens, encumbrances, easements, rights, rights of way, claims or other limitations thereon, except for any exceptions to title approved by Developer pursuant to Section 205. . • Possession shall be delivered to the Developer not later than the conveyance of title, except• that limited access shall be permitted before conveyance of title as provided in Section 211 of this Agreement. Provided that all conditions set forth in this Agreement with respect to the Conveyance have been satisfied, the Developer shall accept title on or before the date established in the Schedule of Performance (Attachment No. 6) for the Conveyance. The Agency shall convey to the Developer title to the Site, excepting the mineral rights thereto, in the condition provided in Section 205 of this Agreement by a grant deed substantially in the form of the Grant Deed set forth in Attachment No. 7. • E. [§ 205]Condition of Title The Agency shall convey to the Developer fee simple merchantable title to the Site, excepting the mineral rights thereto (but without reservation of any right of surface entry), and said title shall be free and clear of all recorded or unrecorded liens, encumbrances, covenants, assessment3, easements, leases, taxes, and other matters affecting title, except for covenants and easements of record which the Developer approves in writing pursuant to the provisions of this Section 205, the Redevelopment Plan, and the provisions contained in the Grant Deed (Attachment No. 7). The condition of title shall be compatible with and not preclude development of the Improvements. The Developer has, prior to the execution of this Agreement, been provided with a preliminary title report (the "Preliminary Title Report"), together with copies of all documents reported as exceptions in the Preliminary Title Report (collectively the "Title Documents") for the Site, dated as of August 5, 1991, Order No. 168013-5. A copy of the Preliminary Title Report is attached hereto as Attachment No. 10. Developer has approved exceptions 1, 2 and 3 shown in the Preliminary Title Report, subject to receipt of an endorsement from Title Company insuring that there is no right of surface entry on the Property with respect to any of those items. All other exceptions, including, without limitation, all mortgages, deeds of trust or other like monetary encumbrances shall be deemed disapproved and Developer shall not be required to accept the Site subject to any such exceptions or liens. Agency shall correct or remove such matters identified in the Disapproval Notice not later than the Conveyance of the Site. The Agency will reserve and except from the Conveyance all interests in oil, gas, hydrocarbon substances and minerals of every kind and character lying more than 500 feet below 12 SF&G:SF-96Agrcc DDA-1208 12l1 n6 -the surface, together with the right to drill into, through, and to use and occupy all parts of the Site lying more than 500 feet below the surface -thereof for any and all purposes incidental to the exploration' for and production of oil, gas, hydrocarbon substances or minerals from said site or other lands, but without, however, any right to use either the surface of the Site or any portion thereof within 506 feet of the surface for any purpose or purposes whatsoever. Subject to any mutually agreed upon extension of time, the Agency shall deposit the Grant Deed (Attachment No. 'n with the Escrow Agent on or before the date established for the Conveyance pursuant to the Schedule of Performance (Attachment No. b). [.FZIYI YXV. . M . 1 ITS TIl 1 = / M 67 e � 11 = 1 I . a 27IT, The Escrow Agent shall file the Grant Deed for recordation among the land records in the Office of the County Recorder for Orange County, and shall deliver the balance of the Purchase Price (concurrent with the Conveyance) to the party entitled thereto after delivery to the Developer of a title insurance policy insuring title in conformity with Section 205 of this Agreement. H. j§ 208j Concurrently with recordation of the Grant Deed (Attachment No. 7) conveying title to the Site, the Titl-- Company shall provide and deliver to Developer a title insurance policy issued by the Title Company insuring that the Title to the entire Site is vested in Developer in the condition required by Section 205 of this Agreement. The Title Company shall provide the Agency with copies of the title insurance policy and the title insurance policy shall be for the amount of Two Million One Hundred Fifty Nine Thousand Dollars ($2,159,000.00). The Agency shall bear a share of the cost of the title insurance policy equal to the cost of a standard CLTA policy with coverage in the amount specified above. All additional costs incurred for or related to such title insurance shall be borne solely by the Developer. The Developer may, at its option and at its cost, obtain coverage in excess of the amount specified above, secure any endorsements to its CLTA form of policy, or secure an ALTA form of policy, rather than the CLTA policy. 1. [§ 20911axesand Assessments. Ad valorem taxes and assessments, if any, on the Site levied, assessed or imposed for any period prior to the Conveyance shall be borne by the Agency, and any of such taxes and assessments imposed after the Conveyance of the Site shall be borne by the Developer and its successors and assigns. After the Conveyance of the Site to Developer, Developer shall pay when due all real estate taxes and assessments on the Site so long as Developer retains an interest therein. 13 SF/s:G:SF-96Agm:DDA-1208 12112J96 J. [§ 210] ccupmts of the Site. ' Concurrent with the Conveyance, possession of the Site shall be delivered to the Developer with no occupants and free of any rights of possession by others. K. . [§ 211] fondition of the Site. 1. I2isclosu- The Agency represents that, to the best of its actual knowledge,' two gasoline service stations formerly existed on the Site, which contained underground gasoline storage tanks, which may have contaminated the soil or groundwater on or under the - Site with petroleum or other Hazardous Substances (as defined below). GeoRemediation Inc. ("Environmental Consultant") has conducted an environmental assessment of the Site. Environmental Consultant set forth its findings in a work plan, dated January 12, 1996, and attached hereto as Attachment No. 8 and incorporated herein, which contains the recommended remediation measures for the Site. 2. - Cleanup. Subject to the "Remediation Cost Cap" (defined below), Agency hereby agrees to fund all remediation activities (the "Remediation"), including the installation of monitoring equipment and removal of all asbestos from the Site in connection with demolition and clearance of the Site pursuant to Section 307, necessary to correct or remove the environmental harms or hazards noted in the above investigation (Attachment No. 8). The Developer and the Agency have accepted the recommendation of the Environmental Consultant (Attachment No. 8) as establishing the scope and description of the Remediation work to be performed on the Site and the parameters and conditions of such Remediation work. Such Remediation work is underway as of the date of this Agreement. The Environmental Consultant is presently supervising the Remediation work performed by the chosen contractor in order to ensure that 'such Remediation work is diligently pursued to completion in compliance with all applicable laws, including without limitation, those statutes described below as the Applicable Laws, and the Remediation plan approved by the parties. The Agency agrees to consult with the Developer and keep the Developer fully informed throughout the Remediation process, and agrees to allow the Developer access to the Site for purposes of inspecting any Remediation work being performed thereon. The Developer shall be notified of, and allowed to attend and participate in, all discussions, hearings, proceedings or meetings related to the Remediation work. The Agency further agrees to consult with the Developer with respect to all Remediation work, to provide the Developer with copies of all correspondence, studies, tests and other documentation relating to the Remediation work, and to reasonably consider any recommendations or requests presented by the Developer with respect to such Remediation work. The Agency shall provide the Developer, upon the Developer's request from time to time, with an accounting of remediation costs incurred to date ("Remediation Costs"). Prior to undertaking any such Remediation work, the Agency shall obtain all required governmental approvals pursuant to California Ilwalth and Safety Code Section 33420.5 (to the extent applicable) and any other applicable laws in connection with the performance of the Remediation. 14 sF/s:G.SF-96Agrer.DDA-1248 12/12/96 If the projected costs of Remediation to be incurred by the Agency with respect. to,the Site -(including the projected cost of the asbestos removal to be incurred in connection with demolition and clearance pursuant to said Section 307, but exclusive of any other costs of demolition or removal pursuant to said Section) (the "Remediation Cost") at any time exceeds Two Hundred Fifty Thousand Dollars ($250,000.00) (the "Remediation Cost Cap"), either party.may terminate this Agreement, within thirty (30) days after notice of such projected cost, by the procedure set forth in Sections 511 and 512 herein; provided, however, that if one of the parties, at its option, agrees to pay the excess of the Remediation Costs described in this Paragraph 3 over Two Hundred Fifty Thousand Dollars ($250,000.00), the other party may not terminate this Agreement. Such payment shall not constitute a waiver of any other right of the paying party or of any responsibility or liability of the other party under this paragraph - Notwithstanding anything else in this Agreement which is or appears to be to the contrary, unless the Developer, in its sole discretion, elects otherwise, all work described in this paragraph shall be completed and all required approvals obtained prior to the Conveyance of the Site to the Developer. If necessitated by the foregoing sentence, the date set forth in the Schedule of Performance (Attachment No. 6) for Conveyance of the Site shall be extended as necessary to complete such Remediation and secure such approvals; provided that such extension shall not exceed one hundred eighty (180) days. If the Agency is unable to complete such Remediation and obtain all necessary approvals by such extended deadline, then the Developer, at its sole option, may terminate this Agreement or extend the deadline for the Conveyance of the Site to such date(s) as Developer deems appropriate. Agency further agrees to indemnify, defend and hold Developer and all members, partners, employees, contractors, agents and representative of Developer (collectively, "Representatives") harmless from all Iosses, liabilities, costs, expenses, damages, claims and causes of action, including attorneys' fees and court costs, (collectively, "Liabilities") arising from or related to Developer's actions on behalf of Agency pursuant to this Section. 3. Limitcd Warrunties After Remediation; Obligation to ConWbute. Upon completion of any cleanup required pursuant to Paragraph 2 above, the delivery of the Site to the Developer shall be in an "as -is" condition, with no warranty expressed or implied by the Agency as to the presence of Hazardous Substances on the Site, except as expressly provided below. Notwithstanding anything above to the contrary, the Agency shall remain responsible for and shall indemnify, defend and hold the Developer and its Representatives harmless from all costs, expenses, loss, damage, cause of action or liability ("Liabilities") arising from or related to any Remediation work performed by or on behalf of the Agency (except work performed by the Developer) on the Site pursuant to Section 211[2]. In addition, Agency agrees to indemnify, defend and hold Developer and its Representatives harmless from all Liabilities arising from or related to the presence of any Hazardous Substances on the Site, regardless of when discovered, which were located on the Site at the time of the Conveyance; provided, that (i) the Agency's total liability under this indemnity shall not exceed Two Hundred and Fifty Thousand Dollars ($250,000.00), and (B) except as to any ongoing remediation systems in place as of the issuance of a Certificate of Completion for the entire Site (which shall continue to be funded by the Agency up to the amount of the Two Hundred Fifty Thousand Dollars ($250,000.00) Remediation Cost Cap), this indemnity shall expire upon issuance of a Certificate of Completion for all of the Improvements to be constructed by Developer. Except as provided in the preceding 15 SFIs:G:SF-96A9rcc:DDA-1208 12/12196 two sentences and Section 211[2], the Developer shall be responsible for remediation of the presence of Hazardous Substances in, on or - under the Site, including contaminated soils or ground water, first discovered after the date of the Conveyance, and, except as provided above, if any Hazardous Substance is discovered on the Site subsequent to the Conveyance, the Developer shall be responsible for its removal, management, or any other acts required by any Applicable Law, court - or govenurent agency. 4. DCvrlo=r Indcninily. The Developer, including any and all of its successors in interest (other than the holder of any encumbrance permitted pursuant to the terms of this Agreement), agrees to and shall indemnify, defend, and hold the Agency and the City and their respective officers, employees, representatives and agents harmless from and against all expenses (including, without limitation, reasonable attorneys' fees and disbursements), losses, or liabilities suffered by the Agency or the City by reason of governmental action or third party claims arising out of any Hazardous Substances brought upon the Site by the Developer in connection with the construction of the Improvements. Upon vesting of title to the Site in the Developer, the Developer, except as otherwise expressly provided in this Agreement, shall assume all responsibility for subsurface zone conditions and soils conditions of the Site, and for any rehabilitation necessary for the construction of the Improvements; and, except as otherwise expressly provided in this Agreement, the Agency makes no other representations or vs•arranties concerning the Site, its suitability for the use intended by the Developer, or the surface or subsurface conditions of the Site. Except as otherwise expressly provided in this Agreement, if the soil conditions of the Site are not in all respects entirely suitable for the use or uses to which the Site will be put, then it is the sole responsibility and obligation of the Developer to take such action as may be necessary to place the Site in a condition suitable for the development of the Site. Nothing in this Section 211 is intended to waive any claim or right the Developer may have against any person or entity, other than the Agency or the City, relating to the physical condition of the Site. S. . The Developer agrees to comply with Applicable Laws in all activities wing or concerning Hazardous Substances on the Site. The Developer agrees to immediately notify the Agency of the DeveIoper's discovery following the Conveyance of any Hazardous Substances on the Site. 6. Developer Release. Upon vesting of title to the Site in the Developer, the Developer releases, waives and discharges the Agency and the City and their respective officers, employees, representatives and agents from all present and future claims, demands, suits, legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, present and future, arising out of or in any %ay connected with the Agency's or the City's ovmership of the Site (including, without limitation, ownership of the Site or any portion thereof for the purposes of CERCLA and any other Applicable Law, as those terms are defined in Paragraph 9 below), any condition of en-Oronmental contamination on the Site, or the existence of Hazardous Substances in any state on the Site; provided, such environmental contamination of Hazardous Substances were not brought onto the Site by the Agency or City or any person or entity acting on their behalf or at their direction. 16 SP1s:G:SFA6Agrce:DDA-1208 1211196 The Developer acknowledges that it is aware of and familiar with Section 1542 of the California Civil Code which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if • Known by him must have materially affected his settlement with the debtor." The Developer hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code. Notwithstanding -anything in this Section which is or appears to be to the contrary; nothing in this Section shall be construcd or understood to limit or waive the obligation of the .Agency to fund Remediation of the Site up to the Remediation Cost Cap or to otherwise release the Agency from any express contractual obligations or liabilities imposed upon the Agency pursuant to the terms of this Agreement. 7. Definitions. The term "Hazardous Substance" or "Hazardous Substances" shall mean any substance which is listed as "hazardous" or "toxic" in the statutes comprising (or regulations implementing) the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 950I, st seQ., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seQ., ("RCRA"), and California Health and Safety Code Sections 25100, sue., 25300, cL=., or 25280, ct seq. or which has been, is now, or is later determined by any federal, state or local agency or court with jurisdiction over the Site to be a hazardous or toxic substance regulated under Applicable Law. The term "Hazardous Substance" or "Hazardous Substances" shall also include, without limitation, the products of any manufacturing activities on the subject property, petroleum wastes, petroleum by-products, asbestos containing materials, and so,=e, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended (42 U.S.C. 3011, cL=., as amended). The term "Applicable Law" shall include, but shall not be limited to, CERCLA, RCRA, the Federal Water Pollution Control Act, 33 U.S.C. 1251, ., the Clean Air Act, 42 U.S.C. 7401, sty., California Health and Safety Code Sections 25100, sue., 25300, rt=., or 25280, rL=., and the regulations thereunder, and any other local, state and/or federal laws or regulations that are applicable to the Site and that govern (i) the existence, cleanup and/or remedy of contamination on property; (ii) the protection of the environment from spilled, deposited or otherwise emplaced contamination; (iii) the control of Hazardous Substances; or (iv) the use, generation, transport, treatment, removal or recovery of Hazardous Substances, including building materials. L. [§ 212]Pseli_minaa Mrk. Prior to the Conveyance of the Site, representatives of the Developer shall have the right of access to all portions of the Site for which the Agency holds title or over which it has 17 S F/s: G:S F-96 A g rec : DDA-1208 12/12R6 - a right of possession or access, at all reasonable times for the purpose of obtaining data and making surveys. and.tests necessary to carry out this Agreement, including the investigation of the environmental condition of the Site pursuant to Section 211 hereof and the investigation of all soil, subsoil and geologic conditions on the Site. Any preliminary work undertaken on the Site by the Developer prior to Conveyance of the Site shall be done only after written notice to the Agency_ Executive Director delivered not less than forty-eight (48) hours prior to the DeveIopees entry on the Site, and, except as otherwise expressly provided in this Agreement, at the sole expense of the Developer. Except as provided in Section 211, the Developer shall save and protect the Agency and the City against any claims resulting from all preliminary work on, access to or use of the Site undertaken pursuant to this Section 212, and, upon termination of this Agreement and written request of the Agency, shall restore the Site to its original condition with respect to any alterations on the Site caused by such investigations. Copies of data, surveys and tests obtained or made by the Developer on the Site pursuant to this Section 212 shall be filed with the Agency within fifteen (15) days after receipt by the Developer. Any preliminary work by the Developer shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. - If this Agreement is terminated for any reason, the Agency shall reimburse the Developer for the costs of any such studies or tests which are not otherwise reimbursed under this Agreement and which the Agency elects, within thirty (30) days after such termination, to retain. if the Agency elects not to retain any such studies, it shall promptly surrender to the Developer the original copy of such study and all copies, reproductions, or copies thereof, and, upon such timely surrender, shall have no reimbursement obligation to the Developer for such studies. If the Agency retains any tests or studies, it shall be without representation or warranty of any kind from the Developer. In no event shall the Developer be required to deliver its internal marketing studies and financial projections under this Section 212. M. [§ 2131C.Dnditions Precedent to the Conveyance. Prior to and as conditions precedent to the Conveyance of the Site, the Developer and Agency shall complete each of the following by the respective times established therefor in the Schedule of Performance (Attachment No. 6): (Attachment No. 7); (1) the Agency and the Developer shall execute the Grant Deed (2) the Developer shall pay into Escrow the Purchase Price; (3) the Developer shall not be in material default of its obligations under this Agreement (provided that this condition shall only be for the benefit of, and may be waived by, the Agency); (4) the Agency shall not be in material default of its obligations under this Agreement (provided that this condition shall only be for the benefit of, and may be waived by, the Developer); 18 SFls:G:SF-96AAgmc:DDA-1208 t2/12196 (5) the Developer shall have obtained all entitlements and land useapprovals necessary to develop the Site in the manner contemplated by this Agreement (which shall be final and not subject to further appeal) (hereinafter referred to as the "Land Use Entitlements") and the City shall be prepared, immediately following the Conveyance and subjea to payment of any applicable fees, to issue building permits for all of the Improvements to be constructed on the Site; (6) the Agency, by its Executive Director, shall have approved the Developer's evidence of financing for the Site in accordance with Section 215; (7) the Developer shall have provided to the Agency Executive Director insurance certificates conforming to Section 309 of this Agreement; (8) the Site investigation shall have been completed and the Site remediation shall have been completed as provided in Sections 211 [2) and 211 [3] (unless Developer elects to complete Site remediation following the Conveyance); (9) Site clearance and demolition shall have been completed (unless the Developer elects to complete such clearance and demolition following the Conveyance), as provided in Section 307; (10) recordation of the final Subdivision Map and vacation of the Alley Parcel by the City shall have been accomplished; (11) the construction loan, if any, to be secured by the Developer in connection with development of the Site shall be in a position to fund promptly following the Conveyance; and (12) all other conditions to the Conveyance provided in this Agreement and the instructions to the Escrow shall have been satisfied (or waived by the party for whose benefit the condition is provided). . The foregoing items together constitute the "Conditions Precedent" to the Conveyance. The foregoing provisions shall not be construed to relieve another party of its responsibility for performance of its obligations under this Agreement, nor to limit the non - defaulting party's remedies for the defaulting party's breach of those obligations. The City general plan designation and zoning of the Site subject to zoning variances granted by the City Planning Commission at the time of the execution of this Agreement, are such as to permit development and construction of the Improvements thereon in accordance with the provisions of this Agreement, and the use, operation and maintenance of 19 SF/s:G:SFA6Agrcc: DoA-1208 12/12/96 such Improvements. The Agency shall use its best efforts to assist the Developer to obtain any additional -entitlements or land use approvals necessary to develop the Improvements contemplated by this Agreement. Thd Developer shall be responsible to make appropriate application to the City to • satisfy all provisions of the California Subdivision Map Act (Government Code Section 66410, gt ), to obtain any required conditional use permit, and to satisfy all other local enactments pursuant to the Subdivision Map Act which are applicable with respect to the assembly and development of ,the Site. The Agency shall assist and cooperate with the Developer in accomplishing these matters. • .$I •I . AT,M . 1 rurr rn r =r• t4WROM111 As required in this Agreement and within the time established therefor in the Schedule of Performance (Attachment No. 6), the Developer shall submit to the Agency Executive Director evidence that the Developer has obtained the required financing necessary to undertake the development of the Site in accordance with this Agreement. The Developer shall close said financing concurrently with the Close of Escrow for the Site. Within fifteen (15) days after submission, the Agency Executive Director shall approve or disapprove such evidence of financing. Approval shall not be unreasonably withheld or conditioned. If the Agency Executive Director shall disapprove any such evidence of financing, the Agency Executive Director shall do so by written notice to the Developer stating the reasons for such disapproval and, if such disapproval is authorized by this Agreement, the Developer shall promptly attempt to obtain and submit to the Agency Executive Director new evidence of financing. The Agency Executive Director shall approve or disapprove such new evidence of financing in the same manner and within the same time established in this Section 215 for the approval or disapproval of the evidence of financing as initially submitted to the Agency Executive Director. Such evidence of financing shall include the following: 1. A copy of a commitment obtained by the Developer for the mortgage loan or loans for financing to fund the construction of the Project. The commitment for financing shall be in such form and content acceptable to the Agency as reasonably evidences a legally binding, firm and enforceable commitment, which may be subject to the construction Iendees customary and normal conditions and terms and to preparation of final loan documentation; provided, however, this formal commitment shall not be required if the Developer's construction lender does not customarily issue such commitments, and, in that event, the Agency agrees to accept, in lieu of the commitment requirement, evidence of the willingness of the Developer's proposed lender to provide the necessary financing, even if such evidence is not legally binding or is of an informal nature; and 2. A copy of the contract between the Developer and one or more general contractors for the construction of the applicable Improvements, certified by the Developer to be 20 SF/s:G.SF-96Agttc:DDA-1208 12/ 12/96 a true and correct copy thereof, provided, this provision shall not apply if the Developer elects to act as its own general contractor for the Improvements. 3. The Developer has already provided to the Executive Director of the Agency a financial statement and/or other documentation satisfactory to the Agency as evidence of other sources of capital sufficient to demonstrate that the Developer has adequate funds to cover .the difference, if any, between construction costs and the financing authorized by any contemplated mortgage loans. P. [§ 2I6]RelQcatim. The Agency has performed or will perform all relocation obligations, at its sole cost, required by law as a result of the execution of this Agreement and the construction of the Improvements. Q. [§217] Real Estate Taxes and Assessed Yaloations 1. Ad valorem taxes and assessments, if any, on the Site, levied, assessed, or imposed for any period prior to the Conveyance, shall be borne by the Agency. All such ad valorem taxes and assessments levied or imposed for any period after the Conveyance shall be paid by the Developer. 2. After the Conveyance and prior to issuance of the Certificate of Completion for the Site, the Developer shall make no appeal or challenge of an assessment of the fair market value of the Site for property tax purposes that would result in reducing the assessed value below Two Million One Hundred Fifty Nine Thousand Dollars ($2,159,000.00)- 3. Upon the issuance of the Certificate of Completion for the Site and for the following seven (7) years, the Developer and its successors and assigns shall make no appeal or challenge of an assessment of the fair market value of the Commercial Lots for property tax purposes that would result in reducing the assessed value below Seven Million Five Hundred Thousand Dollars ($7,500,000.00), as aggregated across the Commercial Lots, The foregoing shall not prevent a reassessment below Seven Million Five Hundred Thousand Dollars ($7,500,000.00) in cases of damage or destruction of all or a portion of the Improvements on the Commercial Lots, pending reconstruction of the Improvements. The assessed value may be spread across the Commercial Lots on any basis, so Iong as the aggregate value is met. Except for temporary reduction in the event of damage or destruction as set forth above, should the assessed value of the Commercial Lots be reduced such that the total assessed value of the Commercial Lots is less than Five Million Dollars ($5,000,000.00) as aggregated across'the Commercial Lots, then the Developer and its successors and assigns shall agree to an increase in assessed value to not leas than Five Million Dollars ($5,000,000.00). The foregoing shall apply to all transfers, assignments and bankruptcy proceedings, but shall terminate in the case of a transfer due to a foreclosure or deed in lieu of foreclosure to a commercial lender unaffiliated to Developer. Upon the transfer of all interest in the Site by Developer or any successor to an unaffiliated entity, the transferor shall have no further liability with respect to events occurring 21 sF/s:G:SF-96Agrce:DDA-1208 12/12196 after the date of transfer. Following the seventh (7th) anniversary of the initial issuance of a Certificate of Completion on the Site, Agency shall, at Developer's request, execute, acV3iowledge and deliver to Developer a document, in recordable form, acknowledging the termination of the provisions of this Section 217 and that those provisions are of no further force or effect. III. . Z§ 3001DEVELOPMENT OF THE SITE. A. ' [§ 301JI)gvelopment of ft Site. MOMMU f 6 � The Site shall be developed as provided in the "Scope of Development" which is attached hereto as Attachment No. 3 and is incorporated herein. The development of the Site shall include both the public improvements and private improvements on the Site and the public improvements off -site which arc required to be constructed by the Developer pursuant to the terms of the Scope of Development (collectively, the "Improvements"). Upon the completion of the Conveyance, the Developer shall commence and complete construction of the Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 6). The development shall conform to any plans and specifications approved by the City and/or Agency, and shall incorporate or show compliance with all mitigation measures provided for by this Agreement or other applicable approvals consistent with the terms of this Agreement. 2. [§ 303]Site Plan. In connection with this Agreement, the Developer has prepared and submitted to the Agency a Site Plan and related documents which conform to requirements of the Agency and which contain the overall plan for development of the Site in sufficient detail to enable the Agency to evaluate the proposal for conformity to this Agreement. The Site shall be developed as established in this Agreement, and such documents, except as changes may be mutually agreed upon between the Developer and the Agency in writing. By the time set forth therefor in the Schedule of Performance (Attachment No. 6), the Developer shall prepare and submit to the City and Agency Executive Director construction drawings, landscape plans, and related documents for development of the Improvements. Any items so submitted and approved in writing by the Agency Executive Director shall not be subject to subsequent disapproval by the Agency Executive Director. Any disapproval shall state 22 SFls:G:SF-%Agree:DDA-1248 1211206 .in writing all of the reasons for such disapproval. Any items properly disapproved by the Agency. Executive Director shall be revised and resubmitted to the Agency Executive Director as soon as reasonably possible. The landscaping and finished grading plans shall be prepared by a professional Iandscape architect or registered civil engineer who may be affiliated with the same firm as the Develdpces architect or civil engineer. During the preparation of all such drawings and plans, staff of the Agency and the Developer shall hold regular progress meetings to coordinate the preparation of, submission to, and review of drawings, plans and related documents by the Agency Executive Director. The staff of the Agency and the Developer shall communicate and consult informally as frequently as is .necessary to insure that the formal submittal of any documents to the Agency Executive Director can receive prompt and speedy consideration. • Following approval of such plans by the Executive Director of the Agency, they shall be processed by the City in connection with the issuance of grading, demolition, building and other like permits, as applicable. The Agency shall assist the Developer in securing the prompt processing of such plans and permits by the City. Nothing in this Section shall be construed as preempting or waiving any applicable planning review, public works, design review or other like requirements of the City. 1 0 :1+ WMMM Eel 5LOOMMMMM 11 MA I RTWIM M : • The Executive Director of the Agency shall have the right of architectural and planning review and approval of all plans and submissions submitted pursuant to Section 344, including any changes therein; provided, that the Agency Executive Director shall not unreasonably withhold his approval of any such plans and submissions, and shall approve or disapprove such plans and submissions within the time set forth in the Schedule of Performance. The Agency Executive Director shall not withhold approval of any plans which are a logical evolution of any previously approved plans and site drawings, nor shall the Agency Executive Director require modifications to any proposed plans that would require such plans to conflict with any previously approved plans or site drawings. In the event of any inconsistency between any site plans or preliminary plans or construction drawings and any final plans approved by the Agency Executive Director, such final plans shall control. Subject to the above, during each stage of the processing for the Improvements, the Agency shall have the right to require reasonable additional 'information and shall advise the Developer if any submittal of plans or drawings is not complete or not in accordance with Agency procedures. If the Agency Executive Director reasonably determines that such a submittal to the Agency is not complete or not in accordance with such procedures, such tender shall not be deemed to constitute a submittal for purposes of satisfying the Schedule of Performance (Attachment No. b). SF1s:G:Si;-96Agrce:DDA-1208 23 / 121121'96 - r If the Developer desires to make any substantial changes in the construction plans after their approval by the Agency Executive Director, the Developer shall submit the proposed change to the Agency Executive Director for his approval. If the construction plans, as modified by the . proposed change, conform to the requirements of this Section and the Scope of Development (Attachment No..3) the Agency Executive Director shall approve the proposed change and. notify the Developer in writing within 30 days after submission to the Agency Executive Director. If any revisions to any plans approved by the Agency Executive Director are required by any governmental, public or quasi -public body, official, agency, department, bureau or entity having jurisdiction over the Site, then the Developer and the Agency Executive Director shall cooperate in efforts to obtain a waiver of such requirement or, in the absence thereof, shall revise the plans as necessary to meet such requirements. The Agency agrees, upon request from time to time by the Developer, to use its best efforts to cause the City to obtain an outside plan checker, at the Developees expense, to expedite processing of Site approvals and permits. In addition, the Agency agrees, if requested by the Developer, to use its best efforts to cause the City to retain an independent engineer(s), at the Developer's expense, to expedite processing of the tentative map for the Site, and to retain an independent electrical inspector(s) and any other component system inspector(s) designated by the Developer, at the Developer's expense, to expedite inspections and approvals for the improvements to be constructed on the Site. If an outside plan checker(s), engineers) or inspector(s) is (are) retained at the Developer's request, the Agency shall use its best efforts to cause the City to submit such persons for the Developer's reasonable prior approval, prior to selection of such outside plan checker(s), engineer(s) or inspector(s). 5. [§ 306)Cost of Development. Except as otherwise provided in this Agreement, all costs for planning, designing, and constructing the Improvements shall be borne exclusively by the Developer. Except as otherwise provided in this Agreement, the Developer shall also bear all costs related to discharging the duties of the Developer set forth in this Agreement. The Developer assumes the responsibility to construct and shall let contracts for or cause to be constructed all "Off -Site Public Improvements" which are required by City to be constructed in connection with the DeveIoper's improvement of the Site.• The Ott Site Public Improvements that the Developer is to construct or cause to be constructed are attached to the Scope of Development (Attachment No. 3). If any "Additional Off -Site Improvements" (as defined below) are validly required by the Agency or the City, the Developer shall, subject to the limitations below, be obligated to construct or cause the construction of such improvements and the Agency shall reimburse the Developer for all "Expenses" (as defined below) incurred in connection with planning, designing and constructing of such improvements. If the Agency or the City requires the Developer to construct any Additional Off -Site Improvements, the Developer shall promptly obtain an estimate of the cost of designing and constructing such improvements and shall deliver such estimate to the Agency. If the Agency still wishes to have the Developer proceed with the design and construction of such improvements, it shall, within thirty (30) days after receipt of such 24 Sr1S:G:SF-96Agrre:DDA-1208 12/12/96 estimate, approve the scope of such work and the proposed costs thereof (together with a contingency' for specified types and amounts of cost increases or overruns). If the Agency disapproves the proposed Additional Off -Site Improvements work within that period, then the Developer shall have no obligation to construct the applicable Additional Off -Site Improvements. The Agency shall pay to the Developer all Expenses incurred by the Developer m connection with the Additional Off =Site Improvements not later than thirty (30) days after the Developer's submission of (i) a signed demand for payment from the Developer certifying that the work for which payment is requested has been performed, and (ii) a certificate, opinion or other similar document from an architect or engineer acceptable to both the Developer and the Agency, in their reasonable discretion ("Approved Architect") (which certificate, opinion, advice or approval may rely upon the certificate, opinion, advice or approval of other licensed architects, engineers or government officials and may contain reasonable and customary assumptions or qualifications) stating that the work for which payment is requested has been performed. If such Expenses are not paid by the Agency to the Developer when due, they shall thereafter bear interest at the Agreed Interest Rate from the date due until the date paid. "Additional Off Site Improvements" shall mean All improvements or work located outside the legal lot line of the Site ("Boundary of the Site") as shown on the Subdivision Map, or within the area of the Alley Parcel which is to be vacated in connection with development of the Site, which are not expressly identified in the Scope of Development as included within the maximum required Off -Site Public Improvements, including, without limitation, all such street, sewer, water, storm drain, CATV, gas, electric, telephone and other utility improvements and/or relocations required outside the Boundary of the Site or in the Alley Parcel. Notwithstanding anything herein which is or appears to be to the contrary, the "Additional Off -Site Improvements" shall include any and all decorative paving or pavement required by the Agency or the City to be installed by the Developer outside the Boundary of the Site. The "Expenses" of constructing any Additional Off -Site Improvements shall mean all direct and indirect design, planning and construction costs, expenses or fees incurred in connection with any Additional Off -Site Improvements, including, without limitation, all engineering, legal, consultant, and architectural fees, all permit and bonding fees or costs, all points, fees and other financing costs, all interest charges and/or reserves, all insurance, management and inspection fees and costs, and the Developer's overhead costs, which shall be deemed equal to ten percent (100/*) of all other costs and expenses incurred in connection with constructing the Additional Off -Site Improvements. The Agency shall not be responsible for reimbursing the Developer for any payments by t'ic Developer to the Developer or any wholly - owned affiliate of the Developer which are in excess of the amount that would have been paid for such services in an arms length transaction between unrelated third parties acting under the same circumstances. In no event shall the Agency withhold or delay issuance of any Certificate of Completion because of the Developer's failure or refusal to construct any Additional Off -Site Improvements. Subject to the terms of this Agreement, the Developer shall be responsible for all fees associated with development of the Improvements, including, without limitation, traffic, 25 sr•/s:G:Sr•96Agrcc.DDA-1208 12/12/96 library, school facilities and other impact fees. The Agency shall use its best efforts to assist the Developer in its efforts to minimize the amount of such fees. 6. [§ 307]Demoli;ipn of Site. Pursuant to the Prior DDA, the Agency demolished all buildings existing on the Site.' Promptly following execution of this Agreement, the Agency shall complete the clearance of all asphalt, structures, foundations, tanks, and other improvements. Notwithstanding that all costs related to the demolition shall be ultimately borne by the Agency, the Developer may advance such costs on behalf of the Agency as such costs are incurred. All such advances and any other costs incurred by the Developer in connection with such clearance and demolition will be added to and became a part of the Developer Loan described in Section 201 [2] above and shall be deducted from the gross purchase price in connection with the determination of the Purchase Price pursuant to Section 201 [3] above. 7. [§ 308]Construction ScbeduL. Subject to extension pursuant to Section 603, the Developer shall commence and complete the Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 6). Except as otherwise provided in this Agreement, the Developer shall defend, assume all responsibility for and hold the Agency and the City, and their respective officers, agents and employees, harmless from all claims or suits for, and damages to, property and injuries to persons, including accidental death (including attorneys fees and costs), which may be caused by any of the Developer's activities under this Agreement, whether such activities or performance thereof be by the Developer or anyone (other than the City or the Agency, or any of their agents, employees or representatives) directly or indirectly employed or contracted with by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement. Prior to commencement of construction on the Site, the Developer shall take out and maintain during the life of this Agreement, a comprehensive liability policy in the amount of Two Million Dollars ($2,000,000.00) combined single limit policy, including contractual liability, a:. shall protect the Developer, the City, and the Agency from claims for such damages. Insurance coverage furnished by the Developer pursuant to this Section 309 shall conform to this Section 309 and shall pertain to all activities on the Site and all work on any Off - Site Public Improvements or any Additional Off -Site Improvements. The Developer shall furnish the Agency a certificate of insurance from the insurer evidencing compliance with this Section 309 and providing that the insurer shall not cancel or modify the policy without thirty (30) days prior written notice to the Agency. The Developer 26 SF1s:G:sF-96Agme:QGA-1208 / 17112196 shall give the Agency prompt and timely notice of any claim made or suit instituted with respect to the matters covered by such insurance. Coverage shall be primary and not contributing with any* policy or coverage maintained by or obtained by the Agency, and an appropriate endorsement, if available, shall so state. The policy shall contain a waiver of subrogation, if available. The Developer shall comply with all of the provisions of the Workers Compensation Insurance and Safety Acts of the State of California applicable to development of the Site, the applicable provisions of Divisions a and 5 of the California Labor Code, and all amendments thereto, and all similar State or Fed_=I acts or laws which are applicable, and the Developer shall hold the Agency and the City harmless from any claims arising thereunder from the Developees failure to so comply. The Developer shall furnish to the Agency a certificate of Workers. Compensation insurance providing that the insurer shall not cancel or modify the policy without thirty (30) days prior written notice to the Agency. In the alternative, the Developer may show proof of a certificate of consent to self -insure issued by the Director of Industrial Relations according to California Labor Code Section 3800. Before commencement of construction or development of any buildings, structures or other works of improvement upon the Site by the Developer, the Developer shall secure or cause to be secured any and all permits which may be required by the City or any other governmental agency affected by such construction, development or work. Except as otherwise provided by this Agreement, such permits shall be secured at the Developer's own expense. Subject to the terms of this Agreement, it is understood that the Developer is obligated to pay all necessary fees and to timely submit to the City final drawings with final corrections to obtain building permits; the Agency will, without obligation to incur liability or expense therefor, use its best efforts to expedite issuance by the City of building and other required permits and certificates of occupancy for construction that meets the requirements of the Huntington Beach Municipal Code. Subject to the limitations of this Agreement, the Developer shall be required to comply with all conditions of approval of all zoning changes, general plan amendments, subdivision maps, conditional use permits or any other land use approvals and all costs of compliance shall be at the sole expense of the Developer. The Developer shall be required to comply with the requirements of the California Environmental Quality Act, California Public Resources Code Section 21000, et =. ("CEQA"). If such compliance with CEQA results in the imposition of any conditions or mitigation measures not already contemplated by this Agreement, then, at the Developer's written election, this Agreement shall terminate and be of no further force or effect, and the Prior DDA shall be reinstated in full force and effect, the parties shall proceed with processing and development of the Improvements contemplated by the Prior DDA, as modified by subsequent City -approved entitlements or plans, as quickly as reasonably possible, and the Agency and the Developer shall be entitled to assert all rights and enforce all obligations arising from or contained in the Prior DDA. 27 SF/S:G:SF-96Agree:UDA-1248 12/12/96 10. [§ 3111 Rights of Access For the purpose of assuring compliance with this Agreement, representatives of the Agency and the City shall have the right of access to the Site without charges or fees, at normal business hours during the period of construction on the Site for the purposes of this Agreement;. including, but not limited to, the inspection of the work being performed in constructing the Improvements, so long as they comply with all safety rules and do not interfere with the .work of the Developer, or its contractors, agents or representatives. Such representatives of the Agency or of the City shall be those who are so identified in writing by the Director of the Agency,. The Agency shall indemnify, defend and hold the Developer, and its Representatives harmless from any Liabilities arising out of the activities of the Agency and the City referred to in this Section 311. The Developer shall place and maintain on the Site signs indicating the respective roles of the Developer and the Agency in the construction of the Improvements. The cost of the signs and their installation shall be borne solely by the Developer and shall comply with all applicable City sign codes. 11. [§ 312] L al- State and Federal Laws. The Developer shall perform under this Agreement and carry out its performance under this Agreement, including without limitation the construction of the Improvements, in conformity with all applicable federal and state Iaws and local ordinances, including all applicable federal and state labor standards, as to the Site, provided, however, the Developer and its contractors, successors, assigns, transferees, and lessees are not waiving their rights to contest any such laws, rules or standards. 12. [§ 313]Anti-Discrimination. Pursuant to Sections 33435 and 33050 of the California Community Redevelopment Law, the Developer, for itself and its successors and assigns, agrees that in the construction of Improvements on the Site or other performance under this Agreement, the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, ancestry, or national origin. 1 R I 1' h + \/ 1 11 Its 1 3=6 -' 1 1 arummmTrimm Mortgages, deeds of trust and sales and leases -back are permitted before completion of the construction of the Improvements, but only for the purpose of securing loans of funds to be used for financing the acquisition of the Site, the construction and operation of Improvements on the Site, and any other purposes necessary and appropriate in connection with 28 Sr/s:G:S FA6Agrcc:DDA-1248 12/12N6 development under this Agreement. The Developer shall notify the Agency in advance of any iortgage, deed of trust or sale and lease -back financing, if the Developer proposes to enter into the'same before issuance of a Certificate of Completion for the affected improvements. The term "mortgage" as used hereinafter shall include a deed of trust and sale and lease -back. Prior to issuance of a Certificate of Completion for the affected Improvements, the Developer shall not enter into any conveyance for financing (other than any financing approved in connection with the Agency's approval of the Developer's evidence, of financing pursuant to Section 215), without the prior written approval of the Agency, which approval the Agency agrees to give if any such conveyance' for financing is given to a responsible financial or lending institution or other financially responsible person or entity and is for the purposes stated above. The holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this Agreement to construct or complete the Improvements or to guarantee such construction or completion; nor shall any covenant or any other provision in this Agreement or any grant deed for the Site be construed so to obligate such holder. Nothing in this Agreement shall be construed to permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. MMU M-HR MOM, 811;MrM, COMMSM a With respect to any mortgage or deed of trust granted by the Developer as provided herein, whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in completion of construction of the Improvements, or otherwise under this Agreement the Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, within thirty (30) days after expiration of the cure period applicable to the Developer under this Agreement, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage; provided, that if the default cannot with diligence be remedied or cured, or the remedy or cure cannot be commenced, within such thirty (30) day period, such holder shall have such additional time as is reasonably necessary to remedy or cure such default by the Developer. If such default shall be a default which can only be remedied or cured by such holder upon obtaining possession, such holder shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall have the right to remedy or cure such default after obtaining possession within such time as is reasonably necessary to cure such default. Any such holder shall not be required to cure any default of the Developer which is incurable in order to exercise its rights under this Section 317. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Improvements (beyond the extent necessary to conserve or protect the Improvements or construction already made) without first having expressly assumed 29 SF/s:G:SF-96Agrec:DDA-= 208 IVIZ96 the Developees_obligations to the Agency by written agreement satisfactory to the Agency. The holder,.in' that event, must agree to complete,- in the manner provided in this Agreement, the Improvements to which the lien or title of such holder relates, and submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations.. An}' such holder.properly completing such improvement shall be entitled, upon compliance with the requirements of Section 322 of this Agreement, to a Certificate of Completion (as therein defined.). In any case where, thirty (30) days after the DeveIopees uncured default in completion of construction of the Improvements under this Agreement and the holder's receipt of the notice of said default by the Developer in completion of construction of Improvements under this Agreement, the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof has not exercised the option to commence curing such default, or, if it has exercised its right to cure such default, such holder is not proceeding diligently with construction, the Agency may purchase the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of Lust. If the ownership of the Site or any part thereof has vested in *.e holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following; (1) The unpaid mortgage or deed of trust debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (2) All expenses with respect to foreclosure; (3) The expenses, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Site or part thereof; (4) The costs of any improvements made by such holder, and (5) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt at the time incurred and such debt had continued in existence to the date of payment by the Agency; less (6) Any income derived by the lender from operations conducted on the Site following the foreclosure (the receipt of principal and interest payments in the ordinary course of the lender's business shall not constitute income from the purposes of this subsection (6)). 30 SFIs:G: SF-96Agree:DDA-1208 12/12/96 In the event of a mortgage or deed of trust default or breach by the Developer prior to, the completion of the construction of the improvements on the Site or any part thereof and if the holder of any mortgage or deed of trust has not exercised its option to construct those • improvements, the Agency may cure the default. In such event, the Agency shall be entitled to reimbursement from the Developer of all proper costs and expenses associated with and attributable to the curing of the mortgage or deed of trust default or breach of this Agreement by the Developer and incurred by the Agency in curing such default; provided, however, that in exercising its rights under this sentence the Agency shall be required to act in a manner which will mitigate its damages in the event of such breach by the Developer. The Agency shall also be entitled to a lien upon the Site to the extent of such incurred costs and disbursements. Any such lien shall be subject to the prior construction financing mortgages or deeds of trust. . After the Conveyance of title and prior to the issuance of a Certificate of Completion for the affected portion of the Site, and after the Developer has had written notice and has failed after a reasonable time, but in any event not less than thirty (30) days, to challenge, cure, adequately bond against, or satisfy any liens or encumbrances on the uncompleted portion of the Site which are not otherwise permitted under this Agreement, the Agency shall have the right -but no obligation to satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall require the Developer to pay or make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith contests the validity or amount thereof, and so long as such delay in payment does not subject the applicable portion of the Site to forfeiture or sale, without the right to redeem. The Agency agrees not to unreasonably withhold approval of any modification or amendment to this Agreement as may be requested by the holder or prospective holder of any deed of trust or mortgage encumbering any portion of the Site, or any interest therein. The Agency acknowledges that such amendments may, from time to time, be necessary to induce a lender to loan funds in connection with the development or operation of the Site, and that different lenders may have specific requirements or requests relating to receipt of notice, opportunity to cure, and other similar matters pertaining to its security and its remedies upon a default by the Developer. Any such modification or amendment to this Agreement shall be prepared by the Developer at no cost to the Agency. Promptly after the completion of all of the Improvements to be constructed on the Site (excluding any tenant improvements) in conformity with this Agreement (as determined by the Executive Director of the Agency), upon the written request of the Developer, the Executive Director of the Agency shall furnish the Developer with a Certificate of Completion (in the form 31 SFIs:G:SF-96Agrcc: DDA-1208 12/12/96 attached 'hereto as Attachment No. 9) for the Site. Such Certificate of Completion shall be a conclusive 'determination of satisfactory completion of the construction required by the Agreement upon the-Sitw and the Certificate of Completion shall so state. After the recordation • of such Certificate of Completion, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of such ownership, purchase, lease or acquisition), incur any obligation or liability under this Agreement, except that such party shad be bound by any &-en effective covenants contained in the Grant Deed applicable to the Site or portion thereof acquired by such party. The Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder's Office for the County of Orange. If the Agency refuses or fails to furnish a Certificate of Completion as to the Site after written request from the Developer, the Agency shall, within thirty (30) days of the written request, provide the Developer with a written statement of the reasons the Agency refused or failed to furnish the Certificate of Completion. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain the Certificate of Completion. If the reason for such refusal is confined to the failure to complete specific items of construction, landscaping, and/or other items, all of which shall not affect the ability of the Improvements to be safely inhabited, the Agency will issue its Certificate of Completion upon the posting of a bond or other security acceptable to the Agency by the Developer with the Agency in an amount representing the fair value of the work not yet completed. In no event shall the Agency unreasonably withhold or delay the issuance of a Certificate of Completion. The Certificate of Completion (Attachment No. 9) is not a notice of completion as referred to in Section 3093 of the California Civil Code. The Agency also agrees not to unreasonably withhold a separate Certificate of Completion for any separate Lot within the Site with respect to which the Developer has completed all required Improvements (even though the improvement of the entire Site has not been completed); prodded, that the Developer shall not then be in default with respect to construction of the remaining Improvements and the issuance of such partial Certificate of Completion shall not unreasonably interfere with the Agency's expectation of completion of all of the Improvements required to be constructed on the Site. Each such partial Certificate of Completion shall also be in the form of Attaclunent No. 9 and shall, with respect to the Lot affected by the partial Certificate of Completion, have the same purpose and effect as the Certificate of Completion for the entire Site has with respect to the entire Site. Issuance of the Certificate of Completion shall be an administrative act and is hereby authorized by action of the Executive Director without the necessity for separate approval by the Agency Board. S F/s:G:SF-96Aree: DDA-1208 121121'96 IV. [§ 400]USE OF THE SITE. In Accordance with the terms of this Agreement, the Developer shall develop on and adjacent to the Site all on -site Improvements and those Off -Site Public Improvements required by the City to be constructed in connection with the on -site improvements pursuant to the terms of this Agreement, including the Scope of Development (Attachment No. 3). The Agency shall be responsible for satisfying outside of the Site all affordable housing requirements arising directly or indirectly from or otherwise related to development of the Site -or the construction of the Improvements thereon, regardless of whether such affordable housing requirements wise from state laws or regulations, City ordinances, requirements or conditions, or from any other source or cause. The Agency shall indemnify, defend and hold the Developer and the Site harmless against any affordable housing requirements applicable to the Site or Improvements, and in no event shall the Developer be required to create, fund or assist in any way with the provision of affordable housing as a result of its development of the Site. All residential units constructed on the Site may be leased or sold at unrestricted market levels by the Developer. C. [§ 403]Parking Garage. The Developer shall construct a subterranean parking structure (the "Parking Structure") on the Site, as described and set forth in the Scope of Development (Attachment No. 3). With respect to the first 262 parking spaces required for the Site by the Land Use Entitlements, Developer shall satisfy that requirement at its sole cost and expense by constructing those spaces on the Site. If the Land Use Entitlements require provision of more than 262 parking spaces on the Site, Agency may, at its sole discretion, consider assisting the Developer in satisfying any parking requirement not met by Developer's construction of parking spaces on the Site through participation in the In Lieu Fee Parking Program established by Agency Resolution No. 268, or successor resolutions, for no more than 40 additional spaces. Fb�_` 'i' siia a I - •ru The Developer shall develop approximately forty-one thousand (41,000) square feet of commercial space as set forth in the Scope of Development (Attachment No. 3) on the Site. The Developer shall, from time to time, meet and consult %%ith the Agency concerning development and implementation of a marketing plan for the Retail and Office space on the Site, and shall provide the Agency with copies of such documentation setting forth that plan as the Agency may reasonably request; provided, all such documentation shall be held by the Agency in confidence and the Developer shall not be required to provide any confidential financial information in connection therewith. 33 SFls:G:SF-96Ar,rcc:DDA-1246 12/12/96 •E• • [§ 405]La The Developer covenants and agrees for itself, and its successors, its assigns, and every successor in interest to the Site or any part thereof that, during the term of the Redevelopment Plan, the Developer and such successor and assigns shall not devote the Site to any uses other than those permitted by the Redevelopment Plan as of the date of this Agreement, the Grant Deed (Attachment No. 7); and this Agreement, including the Scope of Development attached hereto. The foregoing covenants shall run with the land. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person claiming under or through it 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 Site. The foregoing covenants shall run with the land. The Developer shall refrain from restricting the rental, sale or lease of the site and lots on the basis of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: a. 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 race, color, creed, religion, marital status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Iand herein conveyed, nor shall the grantee 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, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." b. 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: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, ancestry or national origin 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 34 SF/s:G.SF-96Agmc:DDA-1208 t 2112196 discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vende-.s in the premises herein leased." C. In contracts: - "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status; handicap, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee 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 tl:e selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises." Subject to Sections 322 and 406, the covenants established in this Agreement and the deed of conveyance for the Site shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency, its successors and assigns, the City, and any successor in interest to the Site, or any part thereof. Notwithstanding the issuance of a Certificate of Completion for the Site, the covenants against racial discrimination shall remain in effect in perpetuity. ' r Effect 12LYjolation of the - 1!! and ;1 R ! R this l4' ff y! i i i CoMI21etion of Construction. The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private. Such covenants are established by and enforceable only by the Agency, and are not intended to create any third party beneficiary and may not be enforced by any person or entity other than Agency. The Agreement and the covenants shall run in favor of the Agency, without regard to whether the Agency has been, remains or is an owner of any Iand or interest therein in the Site or in the Project Area. The Agency shall have the right, if the Agreement or covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled. Notwithstanding any other provisions of this Agreement to the contrary, all of the covenants of the Developer contained in this Agreement with respect to the Site (excepting only the covenants against discrimination) shall terminate and be of no further force or effect as to the Site (or any Lot thereof, as applicable), upon the issuance of a Certificate of Completion for the Site or such Lot, and thereafter all rights, obligations, and covenants of the parties with respect to the Site or such Lot shall be as set forth in the Grant Deed. Notwithstanding issuance of a Certificate of Completion for the Site, the Developer and its successors and assigns shall still be required to maintain the Site and perform all other obligations in accordance with the standards set forth in the Grant Deed. Issuance of a Certificate of Completion shall not waive, limit, or terminate any obligation of a party to return or release any deposit or security pursuant to the terms of this Agreement, repay any amounts due to the Developer pursuant to the terms of the Developer's Loan described in this Agreement, or to limit the scope of any indemnity obligation 35 SFIs:G:SF•96Agme: DDA-12Q8 12/12.'96 which has accrued or which, by its terms, remains applicable following the Certificate of Completion. V. 500] DEFAULTS AND REMEDIES. A..-. [§ 501]Defaults —Genera. Subject to the extensions of time provided by Section 603, failure or delay by either party'to perform any term or provision of this Agreement constitutes a default under this Agreement. A party claiming a default shall give written notice of default to the other party, specifying the default complained of and the actions required to correct such default. . The party asserting the default shall not institute proceedings against the other party if the other party, within thirty (30) days from receipt of such notice, commences to cure, correct or remedy such failure or delay and comp'.etcs such cure, correction or remedy as soon as reasonably practicable after receipt of such notice. B. [§ 502) Legal Actions. 1. [§ 503]Institution of Legal Actions. In addition to 'any other rights or remedies and subject to the restrictions in Section 501, either party may institute legal action to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any default, to recover damages for any default, or to obtain any other legal or equitable remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Orange, State of California, in an appropriate municipal court in that county, or in the Federal District Court in the Central District of California. 2. [§ 504]Afl121 icable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or in such other manner as may be provided by Iaw. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon the managing member of the Developer and shall be valid whether made within or without the State of California or in such other manner as may be provided by law. Service on the foregoing 9T SFIs:G:SF-96Agrse:DDA-1208 12/12/96 natural person accomplished by or on behalf of the Agency shall be deemed to effect service on the Developer (and all its constituent members) to the greatest extent pennitted by law. 1. C o e- Itgn. Except as otherwise provided expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Without limiting the generality of the foregoing, the right of either party under Section 511 or 512 to terminate this Agreement due to a default by the other party shall not be deemed to prohibit or limit the right of the party entitled to termination to sue for specific performance, damages, and all other appropriate relief. 1 1 ►1 ►� 1, Any failures or delays by either parry in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 1. [§ 509]Damages. If any default is not cured or commenced to be cured by the defaulting party within the time provided in Section 501 above, then, subject to the limitations of Section 512 below concerning liquidated damages, the defaulting party shall be liable to the other party for any damages caused by such default. 2. [§ 510]SMific Ecrformanc . If any default is not cured or commenced to be cured by the defaulting party within the time provided in Section 501 above, then, subject to the limitations of Section 512 below concerning liquidated damages, the non -defaulting party at its option may thereafter (but not before) commence an action for specific performance of the terms of this Agreement. 3. [§ 511]Terrninati12n by thej DeveloperPrior to the Conveyance. In the event that, prior to the Conveyance: a. The Agency does net tender conveyance of the Site, in the manner and condition, and by the date established in the Schedule of Performance (Attachment No. b) for the Conveyance, and any such failure shall not be cured within the period provided in Section 501; 37 SF/s:G.SF-96Ag=:DDA-1208 12/12196 b. 'The Developer determines, in its reasonable discretion, that the condition of.the soils on or under the Site (other than the presence of Hazardous Substances) is not suitable for the uses to which the Site is to be put, and such condition is not cured to the Developer's reasonabl: satisfaction within a reasonable period of time by the Agency after written demand by the Developer, or the cost of Remediation of Hazardous Substances exceeds the. Remediation Cos: Cap, and the Agency will not pay for the costs in excess of the Remediation Cost Cap; C. The Developer is unable, notwithstanding its diligent efforts, to obtain financing, acceptable to the Developer, for the acquisition and development of the Site; d. Any of the Conditions Precedent to the Developers performance of its obligations has not been satisfied (or waived by the Developer) by the time provided in the Schedule of Performance (as the same may be extended pursuant to Section 603) except those conditions which are to be performed by the Developer; or C. Any conditions or mitigation measures requiring the expenditure of funds by the Developer (and not otherwise already imposed on the Developer pursuant to this Agreement) are required of the Developer in connection with development of the Site as a result of environmental review of the proposed development and Agency fails to assume responsibility for payment of all costs and expenses related thereto; then, at the option of the Developer, upon written notice to the Agency, all provisions of this Agreement shall terminate and be of no further force and effect, the Developer Deposit, all letters of credit, guaranties or other security or funds posted by the Developer, and all funds payable to the Developer upon such termination, shall be immediately returned to or paid to the Developer, as applicable; and thereafter, neither the Agency nor the Developer shall have any further rights against or liability to the other with respect to this Agreement (except that the Developer does not, in such event, waive any legal or equitable rights or remedies it may have against the Agency for the Agency's default or failure to the return any documents or pay any funds to which the Developer is then entitled). 38 SF1s:G:SF-96A9rce: DDA• 1209 12 I21% • !11 1 • • 1 i �! �! • • ! •1 1 In the'event that, prior to the Conveyance: a. The Developer (or any successor in interest) assigns or attempts to assign the Agreement or any rights therein or in the Site in violation of this Agreement and such action is not cured within the period provided in Section 501; or b. There is a change in the ownership of the Developer contrary to the provisions of Section 107 hereof and such action is not cured within the period provided in Section 501; or C. The Developer does not submit certificates of insurance, construction plans, drawings and related documents as required by this Agrcern=4 in the manner and by the dates respectively provided in this Agreement (as the same may be extended pursuant to Section 603) and such default or failure is not cured within the period provided in Section 501;or d. - The Developer fails to countersign the Grant Deed (Attachment No. 7) by the time established in the Schedule of Performance (Attachment No. 6) (as the same may be extended pursuant to Section 603) for the Site Conveyance and such failure is not cured within the time provided in Section 501; or C. Any of the Conditions Precedent to the Agency's performance of its obligations has not been satisfied by the time established therefor in the Schedule of Performance (as the same may be extended pursuant to Section 603), except those conditions which are to be performed by the Agency; or f The Developer does not take title to the Site upon tender of conveyance by the Agency pursuant to this Agreement and following satisfaction of all Conditions Precedent thereto, and such failure is not cured within the time provided in Section 501; or g. The Developer is otherwise in default under this Agreement and such default has not been cured within the time provided in Section 501; then, at the option of the Agency, upon written notice to the Developer, this Agreement shall be terminated, and thereafter neither party shall have any further rights against the other under this Agreement (except that, subject to the limits of the following paragraph, the Agency does not in such event waive any legal or equitable rights or remedies it may have against the Developer for the Developer's default). 39 S r/s:G:S F-96Agree:DDA-1208 12/1Z96 IN THE. EVENT OF TERMINATION UNDER SECTION 512(a) TO (d), INCLUSIVE, (f) OR (g), THE DEVELOPER DEPOSIT OF $50,000, AS SET OUT IN SECTION 109, SHALL BE RETAINED BY THE. AGENCY AS LIQUIDATED DAMAGES AS THE SOLE AND EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, OF THE AGENCY HEREUNDER. IN THE EVENT OF TERMINATION, THE AGENCY WOULD SUSTAIN DAMAGES BY REASON THEREOF THE AMOUNT OF WHICH WOULD BE UNCERTAIN. SUCH DAMAGES WOULD INVOLVE SUCH VARIABLE FACTORS AS THE DELAY OR FRUSTRATION OF TAX REVENUES THEREFROM TO THE CITY AND THE AGENCY, THE DELAY OR FAILURE OF THE AGENCY TO FURTHER THE IMPLEMENTATION OF THE REDEVELOPMENT PLAN, AND LOSS OF OPPORTUNITY TO ENGAGE IN OTI ER POTENTIAL TRANSACTIONS, RESULTING IN DAMAGE AND LOSS TO THE AGENCY. IT 1S IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE AMOUNT OF SUCH DAMAGES TO THE AGENCY, BUT THE PARTIES ARE OF THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE TO THEM THAT THE TOTAL OF SUCH DAMAGES WOULD APPROXIMATELY EQUAL THE AMOUNT OF THE GOOD FAITH DEPOSIT (WITH ANY ACCRUED BUT UNPAID INTEREST THEREON), AND SUCH AMOUNT SHALL BE RETAINED BY THE AGENCY UPON TERMINATION AS THE TOTAL OF ALL LIQUIDATED DAMAGES FOR ANY AND ALL SUCH DEFAULTS AND NOT AS A PENALTY, ALL OTHER CLAIMS TO DAMAGES OR OTTIER REMEDIES BEING HEREBY EXPRESSLY WAIVED BY AGENCY. AGENCY HEREBY WAIVES TRIE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. IN THE EVENT THAT THE DEVELOPER SHOULD CHALLENGE THE APPLICABILITY OR EFFICACY OF THIS PARAGRAPH OR IF THIS PARAGRAPH SHOULD BE HELD TO BE VOID FOR ANY REASON, THE AGENCY SHALL BE ENTITLED TO THE FULL EXTENT OF DAMAGES OTHERWISE PROVIDED BY LAW. THE DEVELOPER AND THE AGENCY SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR INITIALS BELOW: Developer Initial Here Agency Initial Here In the event of a termination pursuant to Section 512(e), the Developer Deposit shall be returned to the Developer. In the event of a termination under Section 512(a) to (g), alI letters of credit, guaranties or other security or funds posted by the Developer, other than the Developer Deposit, and all other fiends payable to the Developer upon termination of this Agreement, shall be immediately returned to or paid to the Developer, as applicable. Elf SF/s:G:SF-96Agmc:DDA-1208 12/12/96 F. [§ 513]F:emedies of the Parties for -Default After the Conygyance. 1. [§ 514] After the Conveyance, if any default is not cured within the period provided in Section 50I, the defaulting party shall be liable to the other party for any damages caused by such -default. • �� •I Ze.' ' d•n� e After the Conveyance, if any default is not cured within the time provided in Section 501, the defaulting party at its option may institute an action for specific performance of the terms of this Agreement. • r =1iev. 71610,TZTZR 1. • MOM 1 1 : 1y : M i 1 1 Subject to the provisions of Section 322, the Agency has the additional right, at its option, to terminate this Agreement and, upon such termination, to reenter and take possession of the Site, or the portion thereof for which a Certificate of Completion has not been issued, with all Improvements thereof, and terminate and revcst in the Agency the estate conveyed to the Developer, if after conveyance of title to the Site and prior to the recordation of a Certificate of Completion for the affected portion of the Site, the Developer (or its successors in interest) shall: 1. Fail to start the construction of the Improvements as required by this Agreement for a period of sixty (60) days after written notice thereof from the Agency (as the same may be extended pursuant to Section 603); or 2. Abandon or substantially suspend construction of the Improvements required by this Agreement once commenced for a period of sixty (60) days after written notice thereof from the Agency (as the same may be extended pursuant to Section 603); or 3. Transfer or suffer any involuntary transfer of the Site, or any part thereof, in violation of this Agreement and such violation shall not be cured within sixty (60) days after the receipt of written notice thereof by the Agency to the Developer (as the same may be extended pursuant to Section 603); but 4. Notwithstanding the time limitations in subsections (1), (2) and (3), so long as the Developer is proceeding with reasonable diligence to correct or cure any cause set forth in such subsections, such time limitations shall be extended for the time necessary to complete such correction or cure. Such right to reenter, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: 1. Any mortgage or deed of trust permitted by this Agreement; or 41 S r/s:G. SF-96Agrcc:DDA.1248 12/12/96 2. - Any rights or interests provided in this Agreement for the protection of the holders of such mortgages or deed of trust. The Grant Deed (Attachment No. 7) shall contain an appropriate reference and provision to give effect to the Agency's right as set forth in this Section 516, under specified circumstances and prior to recordation of any Certificate of Completion, to terminate this Agreement and to reenter and take possession of the applicable portion of the Site, with all Improvements thereon, and to terminate and revcst in the Agency the estates conveyed to the Developer in such portion of the Site. Upon revesting in the Agency of title to the affected portion of the Site as provided. in this Section 516, the Agency shall use its best efforts to resell the Site as soon and in such manner as the Agency shall find feasible and consistent with the objectives of the state redevelopment law and of the Redevelopment Plan, as it may be amended, to a qualified and responsible party or parties (as determined by the Agency) who %ill assume the obligation of making or completing the Improvements, or such other improvements in their stead as shall be satisfactory to the Agency or who will assume the ownership, management, and operation of the Site all in accordance with the uses specified herein and specified for the Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the proceeds thereof shall be applied: 1. First, to'reimburse the Agency, on its own behalf or on behalf of the City, for all costs and expenses incurred by the Agency, including, but not limited to, any expenditures by the Agency or the City in connection with the recapture, management and resale of the Site or part thereof (but less any income derived by the Agency from the Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Site or part thereof which the Developer has not paid (or, in the event the Site is exempt from taxation or assessment or such charges during the period of ownership thereof by the Agency, an amount, equal to such taxes, assessments, or charges as would have been payable if such area were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens cxMng on the Site or part thereof st the time of revesting of title thereto in the Agency, or to discharge or prevent -from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer, any expenditures made or obligations incurred with respect to the making or completion or operation and management of the Improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing the Agency by the Developer and its successor or transferee; and in the event additional proceeds are thereafter available, then; a2 SFIs:G:SF-96Agree:DDA-1208 12/12196 2. Second, to reimburse the Developer, its successor or transferee, up to the amount equal to the.sum of: (a) the Purchase Price paid to the Agency by the Developer for the Site; and (b).the costs incurred by the Developer for the development of the Site, and for the Improvements existing on the Site at the time of the reentry and repossession, including costs for plans, reports, studies and other like matters; and (c) all funds advanced by Developer in connection. with acquisition of the Third Party Parcels or clearance, environmental testing and remediation of the Site; less, (d) any net gains or income withdrawn or made by the Developer from the Site or the Improvements thereon. Any bah.uzce remaining after such reimbursements shall be retained by the Agency as its sole property. The rights established in this Section 516 are to be interpreted in light of the fact that the Agency.will convey the Site to the Developer for development and operation for the purposes herein specified and not for speculation in undeveloped land. VI. [§ 6011GENERAL PROVISIONS. �� 1 /' 11 1� 1• /M 1 1 /1 i �. n 1 F i M. Written notices, demands and communications between the Agency and the Developer shall be sufficiently given if delivered by hand, dispatched by reputable overnight courier service, or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer at the addresses specified in Sections 105 and 106, respectively. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by inail as provided in this Section 601. Any written notice, demand or communication shall be deemed received immediately if delivered by hand, shall be deemed received on the first working day following dispatch if delivered by overnight courier service, and shall be deemed received on the third (3rd) day from the date it is postmarked if delivered by registered or certified mail. B. [§ 602] CDaicts Qf Interest. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee of the Agency participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. 43 SF/s:G:S F-96Ag=:DDA-1208 12/12I96 • 61 i ! l -/ Delay,1 o1 12f Timesof P- 1rl1 1 In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to: war, insurrection; strikes; • lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; • " epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather, inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier, acts or omissions of the other party; acts or failures to act of the City of Huntington Beach or any other public or governmental agency or entity (provided that the acts or failures to act of the City shall not excuse performance by the Agency); or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within sixty (60) days of the commencement of the cause, or from delivery of such notice if delivered after such sixty (60) day period. Times of performance under this Agreement may also be extended in writing by the mutual agreement of the Agency and the Developer. No member, official or employee of the Agency or the City shall be personally Iiable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or the City or for any amount which may become due to the Developer or its successors, or on any obligation under the terms of this Agreement. No officer, director, member, or employee of the Developer, or officer, director, member, or employee of any partner of the Developer, shall be personally liable to the Agency or the City, or any successor in interest, in the event of any default or breach by the Developer or for any amount which may become due to the Agency or the City on any obligation under the terms of this Agreement. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. This Agreement includes pages 1 through 47 and Attachments I through 11 which constitutes the entire understanding and agreement of the parties. Subject to the limitation set forth below, this Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. 44 SFIs:G:S F-96Agree:DDA-1208 12/12/96 Notwithstanding anything in this Agreement which is or appears to be to the contrary, in the event that all Land Use Entitlements required by the Developer to proceed with the Improvements described in the Scope of Development are not obtained by the date set forth in the Schedule of Performance and in the form contemplated by and acceptable to the Agency and the Developer, then, at the Developer's written election, this Agreement shall terminate and • be of no furtlhcr force or effect, the Prior DDA shall be reinstated in full force and effect, the parties. shall proceed with processing and development of the Improvements contemplated by the Prior DDA, as modified by subsequent City -approved entitlements or plans, as quickly as reasonably possible, and the Agency and the Developer shall be entitled to assert all rights and enforce all obligations arising from or contained in the Prior DDA. All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of the Agency and the Developer, and all amendments hereto must be in writing by the appropriate authorities of the Agency and the Developer. Except as, otherwise expressly provided herein, when any consent or approval is required from or by another party, such party shall act reasonably and shall not unreasonably withhold or delay such consent or approval. The parties hereto shall execute and cause: a Memorandum of Amended and Restated Disposition and Development Agreement attached hereto as Attachment No. I and incorporated herein to be recorded in the Official records of Orange County, California within thirty (30) days after the Effective Date of this Agreement. G. J§ 6071C u�parts. This Agreement may be executed in counterparts. VII. i§ 7001 TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY. This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within forty-five (45) days after the date of execution and submission of one (1) copy of this Agreement by the Developer or this Agreement shall be void, except to the extent that the Developer shall consent in writing to a 45 SF1S:G:SF-96Agrce: DDA-1205 12J12J96 further extension of time for the authorization, execution and delivery of this Agreement. The date of this -Agreement shall be the date when it shall have been signed by the Agency. IN NVI"fNESS WHEREOF,- the Agency and the Developer have signed this Agreement as of the date set forth below. DATED; December I6, 1996 "AGENCY" REVIEWED AND APPROVED: REDEVELOPMENT AGENCY OF THE CITY OF I-IUNTINGTON BEACH, a public body corporate and politic By: Name: By: Its: Executive Director Narr-e: of the Agency Its: Chairman By: . Name: Its: Director of Economic Development of the Agency APPROVED AS TO FORM: Agency Attorney il) ho ATTEST: Agency Secretary [SIGNATURES CONTINUED ON NEXT PAGE] 46 SFIs:G:SF-96A0*ree:DDA-1208 12112I96 _ JT DEVELOPMENT COMPANY, LLC, a ' California Limited Liability Company By: John Tsai Member By: John Tillotson Managing Member By: Mike Roberts Member 47 SF/s:G:SF-96Agmc:DDA-12G8 12/12/96 ATTACHMLNT NO. l SITE MAP Fh:G:SMA&mt:wh f 208 12IM6 AtwAmcnt 1 ri SI"M I�l • � - II _ �g�c.�{ F��c.S .. � - t rr�.J* i 'ram''•;' �ML�.�S •�-ter �-rw w . � ti • f i � •- rs i IS - �'� 9 • T i t � � r � s 2Z, 3 r r sir srcno•�o•rr-. sa 9- / 2 r .. �_. - r 20 I t?5r9 r rr 14 A. t I i r 10� 0 37 •� r �� 07-09-90 ATZ � rHM'Er NO . � . O4e8u/2450/43-. __. - — w --- PAS* I at 1 . ATTACHMENT NO.2 LEGAL DESCRIPTION OF THE SITE Block 304 of -Huntington Beach Tract, County of Orange, as per map recorded in Book 3, page 36 of Miscellaneous Maps in the Office of the County Recorder of said county. 0 F/s:G:SFA6A&=: etch 1208 12."6 Attachment 2 ATTACHMENT NO.3 • SCOPE OF DE`'ELOPMENT The Improvements shall contain approximately 80,000 square feet of residential space consisting of approximately 48 town home style units ranging from approximately 1,450 to 2,100 square feet in size. The Improvements will include approximately 41,000 square feet of commercial space divided into 11,040 square feet of office on the second floor fronting Main Street, at least 4,500 square feet of restaurant located at the comer of Main Street and Olive Avenue and the balance shall be devoted to retail commercial uses. The configuration of the Improvements, and the exact number and mix of residential units and commercial square footage shall be determined pursuant to the terms and conditions of the Land Use Entitlements. The Improvements will provide two hundred fifty-two (252) parking spaces, with the exact number of parking spaces to be determined pursuant to the terms and conditions of the Land Use Entitlement, and subject to the Developer's elections pursuant to Section 403 of this Agreement Parking spaces shall be constructed in a "ramp" configuration which will provide one semi - subterranean level, one level below grade and one 1rvel above grade. Access for the commercial parking spaces shall be on Olive and Orange Avenues and the residential parking will have a separate entrance from Fifth Street. There shall be no vehicular access between the commercial and residential parking areas. The residential portion of the structure will also incorporate the necessary elevators, stairs and lobbies to provide secure and convenient access for residents, guests and emergency service providers. Attachment 3 Page 1 of 2 F/s:G:SF-96AC=:atch 1208 119196 a • 1 " a - 1 ► The improvements will be constructed consistent with the Downtown Design Guidelines adopted by the City and be of M-diterranean design incorporating specific architectural details such as smooth stucco. walls, balconies with wrought iron railing, tile roofs and tile detailing, awning and at least one water feature. They shall incorporate landscape and hadscape elements associated with the style. The Improvements will incorporate a public art component which may be satisfied through either placed art or performance art programmed on a year round basis. The art component shall be submitted to Agency Staff prior to Certificate of Occupancy on the commercial space. The specific measures necessary to meet the requirement will be determined by the Land Use Entitlements. The Improvements will provide on site and off site improvements including but not limited to curbs, gutters, relocation and undergrounding of electrical service, relocation of sewers, water, and other public utilities and expansion thereof, as more particularly described in Exhibit A attached hereto (the "Off -Site Public Improvements"). The Improvements shall conform to the final conditions of the Land Use Entitlements as approved by the Planning Commission or City Council. Where the conditions of approval conflict with the provisions of this Scope of Development, the conditions of approval shall prevail. Attachment 3 Page 2 of 2 F/s.GM-96Agroeatch 1208 12/8/96 iFVAZ:: BY: -UL.QE4 I A330CIATES IMIZ CCWM. SUZYE 270 avix�. CA . 9MA . M-4) "C-0110 ,r -TBI - M T w KC-M-3MLLar=m WALOWOfT 1 , EST- VATEO I I OJ TITY IL-41TI A. WOJALS 1 I I Smarr I 1 ! I I ILf'WE EXIST C!4 1 C. PAVV' kT I I ( 36.370 IS.F.j ( t--04E a I ST D4 am 1.320 I L. F.1 ilo< t CCH=c S,.WAU-C u+alaa.7aIvrA&y ; � 13.0:S (I.F.I I I r rr I L`4/E EXISTING r U34a LIRE ( ASS It-F. I ' -601f CX'M114 $it PAM-aM I I IEA. I I IMAL I ! ! I I I 1uTEX I l I l :tr-mE als-. lip r ,u: ER LNE I -,Ss IL..F. i 4r CVE i ULjAQ EXIZ-,-.W 1 MEX P u ! MV-MAL I I l---I• IVC4 CCriMG VaLm PCLS I LIKS I a IEA.- I I CaS 14 VTFUT ua{ I 3 jm I IRE'9vE carm+G wa tm {I7MMING wE=) I 3w IL.F.I ] Si�TOTAL I I • I I ! Ix*c%.% ws— i"e TM I I I T IE'- I Ila=T-, VA 64 M-M I 20 1EA. I IxocvE EX v6r. PALr nm PIPE I 90 IL..F.1 i s,.•aToTA-' TC L R£iCNaL. I I I i CATS: aan3/90 aY, PC/% I i R�•AAf� I I � I I 1 ! I I I M Mm-. RLIXE of STREETS I14MWL & 1 IA::---Y {IrcZ. sucmll�c) ! I I I i ] I ! IaSRtO-) 3DWO r►4:k R_e6CVAL F204 I=n% RMT—tf--AY OF CLIVE TO icE4nxj)dc CF CRANCZ I ;I1+GLL; lK DCISTIW U1.0 UTEUL3 I I I I I i -0 .:AT'cR PAIN 1--CVAL FXX 10'; I � CF C:wmixC xIVL TO I JOCIrD4 S- ATEX PAIN IN CU)a • 1 I - ! I I I11+C=iw. 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I (AT Kax ; CLI-VT Cnslrx = CCTC A ;us:x CW-A') I S ILL I I I =HSTA.C* IBM JLC.P. ] 660 ]L.F.I IIx mix ST. (:)a. Lx-.GxLS) I ' Tcut. PJEtIC IrpRovu'um All�a�i�1YaM�.f.w�..MM.Na�Y.y�.MMaa. asasaaasasa.raaasaassaasaa�aaaaaaaaa ] C. "VCY FM s As=210= I I I l I EKIWEIU)4 i 'X5nC71C i MS I 1c.s. ] :r— TOTAL PJBUC tl 4mmv a COST ] VUFFIC IVAC. FEL } s.OSS InEp1 iKA :IM Orrixso..:r/a.ann:od ] CAPETAL FACILMS WlTEX FEE 1 3 IW.s.I- jm*t2c:AL-y:R .1Ur Rc+« ] WITAL FAC:L*TES NMI FS 1 68 ]D.U.1 12ES:Mr,LsA.-r/A&2. TlCMS I CITY saki FFi ( 68 IO.u.I IxES;,'rT;AL ] CC:. r se-cl FS ] 1.9 IAC. I IC>K;tciAL minmrmw )T£t FS ] 62 ID.u.1 I:XP.CF 412/ Nrwoo.6 xs.tx A7YpCEI CRAB caNre.5.WL7mcm DImICT 3oct ru ] Tl.coo IiF.} Ic>tcstcIAL I ouwcz fC< ri swrT[Ancm DIS�tiCT m4x ra ] 68 10.a.I IXMDL4TIAL f CQAIKAM F<c ' ] 3 IAC- I I ] wir-cpc R D 3.0 C'ST 1 I L. i I ] 1: TOTAL PUBLIC vv%xTmuT C-. FAL X:E), Y FEES 3 A=='V= ] I ] I F: CX.LTUa'S FES ] IL.s.I I 11G TC'tk w IC Ir rt?£!rT = I ] I I I II C::VIL ecwat DESIo( r, ] I I I I ifiLLD .. oK xxvcf wa t 4 • l ( f I I W= 04INCUD6 C7SATMT f= ] ua.aaaaaaaa.assaa •aawaaasp.saa�aa.asaiasaaa�wa�++ss�r�•a+ DIEPA�a 8r: WA;�E14 i-JIXc:ATLs ' .7Cs iC.: 0"7-M?.t 19112 a" , . SJITF Vo :ATE. DBI13J9G ist,11K. CA • 92114 %D�MLLDTSOW DCVELD%E?1T BY: PIS/M :[714) 6E -•OS10-.xrT114:Dr WAS. CAUFO;N:A _ air-rs-wrr�raar��..rrrw..wrrry�rr�r�rrrr.r.�rrrararss r..rrsr�..ri+a�.rr��' I DESUIMIva = au, nrt juN Tl I P.'-AACS { a. 5:2FU NnVvmgTs I I I 1----•--- I --I i l j•_-:)ZM Y A.C. PAVOaT :C I eta ITa I jb DEMPATIvF PAvD <T I�r a I I �I z•::sITs+l I . 1 1 1C1' sIDfi.+tt�c I 13.825 IS.1.1 IA=J-CD DEC'4ATIVE C2OME ! { dT+tJC: C = QMEX . I 6m IS -:.I IAT F?.r M A Dt.M I Imcm.= KQQIC P m-ps I IEl. I I I jC en= vmuTr+t =f r c:crrs -col, ; s IGA• I Ix.tm STstE_+' ! }CnXS-,Z= DCOU7 C MEET UGnTS - S,n f ; 2 lEX. I IMAIM VR$_T I° TE MUM LIG. Z S- S-.AMC.kt D 6 I EA. I 1 OWCIE, CLIVE I F I F: A SZETS j I s-narT :.n Cr"�+wl r I 1. t710 IL.F.1 ! I *'clamm i S:xItI) I 1 IL.3.1 I I .WFIl. C C.'XX I 1 IL.s.I I0.'RIH6 C:�aTx to ; u msapt xizu.% I 1 I L. S. I j uc-. 7 Tam at K:m # t> heal. I } -- --1 I C. szlLtn I ---I• I I ICJ6T M= Y •SciEx A41M ! bao IL:),- I I rise Cl. n_ k. ! MIA t CUW I I' +.c., we K"O-` I = I m- I • I I jcNM-Z= Soct Cukarr j 1 Im } -W-m. es EX. UK j jM-06-- a..1s: I XIx I 1 IEA. I jAT PAIN A DLrA' I jwNT cf, W.E2 LAMUL (s• Vcl') I 135 IL.F.1 13 LATFXALs 1.4 }MIX r4jr! SLS=AL ( I I I 1 WATa I I I I I ja)c-. = a-•M%Tvt M:H j i45 ILF.j IGtiYE i FIF:N S•.E S I JaXVaac' a -'CITE VALVL I A ICA- I I I' 1 1z� w►Ta rAzx s It-F. I IMuux =e-r I jmxnxGC Tzy GATE VU.vrt IC Xr.M r FIAT rr DW RSSMY (I?C- VKVE){ s JEL I r } 1.aw .vtI 201FIRE smtcr (Dc.. V") ! 1 Imo- I I I IC74STZ.C' rloATER 3EWrla CIX-_. KTU) 1 A IEA I Ioo srlc 3 cum I ICJ:T. , Wi TAP (I)Q_ VXLVC) I 2 IfA- I I ! ItCCkj rM= aL= 3 PLIG A XIK CIS. UAT.1 Z IEA- I I I I1t£t i r ou37i}� FI+7t moRA�rt . I l I ZA. j I AT mix 1, oa 6F16� I ATTACHMENT NO. 4 SF/s:Cr.SFA6AVrr.AMh ] 268 Attachment 4 12/& 96 ATTACHME-A • it.rr�.rr • .: � err r sf/s:G:SF-Mg e:mtchl208 Attachment S 12M% ATTACI•LIIENT NO.6 I. .GENERAL PROVISIONS I. Execution of Agreement by Agency. The Agency shall approve and execute this Agreement and shall deliver one (1) copy thereof to the Developer. 2. Soils and Preliminary Grading Plan Approval by Developer. 3. Submission of Complete Site Plan Application. Developer submits full and complete Site Plan application to City. 4. Review of Final Site Plan. Planning Commission Hearing and City Council Hearing. Agency/City to review Final Site Plan and Design Review Board, Planning Commission and City Council to approve the concept development plan. Approval of conditional use permit, tentative subdivision map and all other entitlements. * All "days" are calendar days. S F/s-0:SF-96Ag=:ntch 1208 12/12/96 Within forty-five (45) days* after the date of execution and submission of one (1) copy of this Agreement by the Developer. Within sixty (60) days after the approval of this Agreement by the Agency. Within sixty (60) days after approval of this Agreement by the Agency. Within ninety (90) days of submission of complete site plan application. Attachment 6 Pagel of 4 II.' • • CMSTRU__MON DOCUMENTS AND BUILDING PERMIT 5. 'Subdivision Map. ' Developer is to . prepare and City is to process or cause to be processed Subdivision Map for approvel for the Site to be sold to Developer. 6. Submission of Complete Construction Drawings and Landscaping Plan. Developer shall submit to the City complete Construction (working) Drawings and a Landscaping Plan, Sign Program, and Finish Grading Plan. Developer may submit for a Foundation and/or "shell onV' permit and, for such permit, need not necessarily have drawings completed showing the details of the residential units except in conceptual form. 'The Landscaping Plan and final Sign Program shall be completed and approval obtained by Developer prior to completion of the Developer Improvements. 7, City Review of Complete Drawings and Plans. The City shall review the Complete Construction (working) Drawings, the Preliminary Landscaping Plan, Preliminary Sign Program, and Finish Grading Plan and provide comments. SF1s:G:SFA6A gree:atch t 208 t2ltM6 Developer submits within thirty (30) days of approval of this Agreement by Agency; City process concurrent with other entitlements. Within one hundred twenty (120) days from Planning Commission and City Council approval of final site plan, including conditional use permit, tentative subdivision map and all other entitlements (item 4 above). Within twenty-one (21) days after submittal. Attachment 6 Page 2 of 4 8. Revisions, if any. Developer shall prepare revised Construction (working) Drawings as necessary, and submit them to City. for review. .9. Final Review and Complete Drawings. The City shall approve the revisions submitted by the Developer provided that the revisions necessary to accommodate the City comments have been made; said approvals constitute the last City approvals required in order for the Developer to pull building permits. 10. Developer Bids Drawings and . Obtains Constru--tion Financing. MAMMavlb"I9• r f. 11. Opening of Escrow. Agency shall open escrow for conveyance of fee title to the Site by Agency to Developer. 12. Conditions Precedent. The Developer and Agency shall satisfy or cause to be satisfied the Conditions Precedent to the Conveyance. SF/s:G.SF-96Agmc:atch 1208 12112/96 Within thirty (30) days after receipt of City's comments. Within fourteen (14) days after submittal by Developer. Within one hundred twenty (120) days after approval of construction drawings by all applicable governmental authorities. r As of this date, Escrow is open pending completion of Conditions Precedent. Within one hundred twenty (120) days after approval of construction drawings by City/Agency. Attachment 6 Page 3 of 4 13. Disposition Conveyance. Agency conveys title to the Site to Developer by the Grant Deed (Attachment No. 7). ' IV. CONSMCnQN PHASE 14. Commencement of Grading and Construction. Developer shall commence construction of the Improvements. .15. Completion of Construction. Developer shall complete construction of all of the Improvements. SF/ :O SF-46Agrmatch1209 12/12/96 • The Conveyance shall take place promptly upon satisfaction of the Conditions Precedent. Within thirty (34) days after the Conveyance The Developer is to use due diligence to complete the Improvements within fifteen (15) months after commencement of the Improvements; provided, however, the Developer may request up to three (3) three (3) month extensions to be granted by the Executive Director of the Redevelopment Agency. Approval for such three (3) extensions (but no other extensions) is not to be unreasonably withheld; provided the foregoing construction shall be completed not later than twenty-four (24) months after the earlier of (i) the commencement of the Improvements or (ii) the time established in this Agreement for the commencement of construction. Attachment 6 Page 4 of 4 ATTACHMENT NO.7 OFSRANI DEED FORM RECORD114G REQUESTED BY: ) 'AND WHEN RECORDED MAIL TO: ) The Redevelopment Agency of } the City of Huntington B :ach ) 2000 Main Street ) P.O. Box 190 ) Huntington Beach, CA 92648 } Attn: Director ) (Space Above for Recorder's Use) The undersigned Grantor declares: Documentary transfer tax is (� Computed on full value of _ property conveyed THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By: Its: Dated: . 19 rRANT,DFFD For a valuable consideration receipt of which is hereby acknowledged, . Attachment 7 Page 1 of 13 SFIs:O SF-96Agnx:Atth 120E 12J9/96 The REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a Public body, corporate and politic, of the State of California, herein called "Grantor", acting to carry .out the Subarea 5 of the Redevelopment Plan, herein called the "Project Area," under the Community Redevelopment Law of California, hereby grants to JT DEVELOPMENT COMPANY. LLC, a California limited liability company, herein called "Grantee," the real property hereinafter referred to as "Property; described in Exhibit A attached hereto and incorporat�.herein, subject to the exceptions, reservations, restrictions and covenants described . herein 1. Grantor excepts and reserves from the conveyance herein described all intent of the Grantor in oil, gas, hydrocarbon substances and minerals of every kind and character lying more than 500 feet below the surface, together with the right to drill into, through, and to use and occupy all parts of the Property lying more than 500 feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said site or other lands, but without, however, any right to use either the surface of the Property or any portion thereof within 500 feet of the surface for any purpose or purposes whatsoever. . 2, The Property is conveyed in accordance with and subject to the Redevelopment Plan which was approved and adopted by Ordinance No. 2579, as amended by Ordinances No. 2634 and 3343 of the City'Council of the City of Huntington Brach, pursuant to that certain Amended and Restated Disposition and Development Agreement entered into between Grantor and Grantee dated December 16, 1996 (the `DDA"), a copy of which is on file with the Grantor at its offices as a public record and which is incorporated herein by reference. 3. Until duly 18, 2018, the Grantee shall not develop or use the Property other than for the development permitted and the uses specified in the applicable provisions of the Redevelopment Plan for the Project Area (or any amendments thereof approved pursuant to paragraph 11 of this Grant Deed). 4. The Property is conveyed to Grantee at a purchase price, herein called "Purchase Price; determined in accordance with the uses pemmitted. Therefore, Grantee hereby covenants and agrees for itself, its mx:cessors, its assigns, and every successor in interest to the Property that the Grantee, such successors and such assigns, shall not develop, maintain, use or operate the Property other than as follows: a. Within the time provided in the DDA, Grantee shall develop the Property for residential housing, office, and retail eases as set forth in the DDA. b. Grantee shall maintain the improvements on the Property in conformity with the Huntington Beach Municipal Code applicable to the Property under the terms of the Attachment 7 Page 2 of 13 ST-&QSF-96h A161208 iV9/96 DDA, and shall keep the Property free from any accumulation of debris or waste materials. Grantee shall also maintain the required landscaping in a healthy condition. If, at any time, Grantee fails to maintain the landscaping as required above, and said conditiori is not corrected after expiration of thirty (30) days from the date of written notice from the Grantor, either the Grantor; or the City of Huntington Beach may perform the necessary maintenance'and Grantee shall pay such costs as are reasonably incurred for such maintenance. S. . Prior to issuance of a Certificate of Completion for the Property, or the applicable Lot thereof, the Grantee shall not place or suffer to be placed on the Property, or the applicable Lot thereof, any lien or encumbrance other than mortgages, deeds of trust, or any other form of conveyance required for financing construction of the improvements on the Property, and any other expenditures necessary and appropriate to develop the Property pursuant to the DDA, and, during such period, the Grantee shall not enter into any such conveyance for financing without prior written approval of Grantor pursuant to the terms of the DDA. No approval will be given for a conveyance of the Property to finance the construction of improvements on real property other than the Property and all off -site improvements required in connection therewith. 6. Prior to issuance of a Certificate of Completion for the Property or the applicable Lot thereof: a. The Grantor shall have the right at its option to reenter and take possession of the Property, or the applicable Lot thereof, hereby conveyed, with all improvements thereon, and to terminate and revest in the Grantor the Property, or the applicable Lot thereo& hereby conveyed to the Grantee if the Grantee (or its successors in interest) shall: i) Fail to commence the construction of the Improvements as required by paragraph 4(a) of this Grant Deed for a period of sixty (60) days after written notice thereof from the Grantor, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled; or ii) Abandon or substantially suspend construction of the Improvements reguirod by the DDA once commenced for a period of sixty (60) days after written notice thereof from the Grantor, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled; or iii) Transfer, or suffer an involuntary transfer of, the Property, or any Lot thereof, in violation of this Grant Deed or the DDA and fail to cure such violation within sixty (60) days after receipt of written notice thereof from the Grantor, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled; but Attachment 7 Page 3 of 13 SFh:G:SF•96A9=:Atch 1208 12M'95 iv) Notwithstanding the time limitations in subsection (i), (ii), and • (iii), sdJong as Grantee is proceeding with r=sonable diligcace to correct or cure any cause set forth in such subsections, such time limitations shall be extended for the time necessary to complete' such correction or cure. b. The right to reenter, repossess, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid, or limit: i) Any mortgage or deed of trust or other security interest permitted by the DDA; or ii) Any rights or interests provided by the DDA for the protection of the holden of such mortgages or deeds of trust or other security interests. C. In the event title to the Property or any parcel thereof is revested in the Grantor as provided in this paragraph 6, the Grantor shall use its best efforts to resell, the Property or any such parcel thereof, as soon and in such manner as the Grantor shall find feasible and consistent with the objectives of state redevelopment law and of the Redevelopment Plan to a qualified party or parties (as determined by the Grantor) who will assume the obligation. of making or completing the Improvements or such other improvements in their stead as shall be satisfactory to the Grantor and in accordance with the uses specified in the DDA for such Property, or parcel thereof, and specified in the Redevelopment PIan. Upon such resale of the Property the proceeds the.-cof shall be applied: i) First, to reimburse the Grantor, on its own behalf or on behalf of the City of Huntington Beach, for all costs and expenses incurred by the Grantor, including but not limited to, salarirs to personnel engaged in such action (but excluding Grantor's general overhead expense) ,'in connection with the recapture, management, and resale of the Property, or parcel thereof, (but less any income derived by the Grantor from the property, or parcel thereof, in connection with such management); all taxes, assessments, and water and sewer charges with respect to the Property, or parcel thereof which the Grantee has not paid, (or, in the event the Property is exempt from taxation or assessment of such charges during the period of ownership thereof by the Grantor, are amount equal to such taxes, assessments, or charges, as determined by the County assessing official, as would have been payable if the Property were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the . Property, or parcel thereof, at the tune of revesting of title thereto in the Grantor or to discharge or prevent from attaching or being made any. subsequent encumbrances or liens due to obligations, defaults, or acts of the Grantee, its Attachment 7 Page 4 of 13 s Fls:G.SF-96Agmc'Atch 12as 1 M6 successors or transferees; any expenditures made or obligations incurred with • respect to the making or completion of the Improvements on the Property or -applicable parcel thereof; and any amounts otherwise owed to the Grantor by the Grantee and its successor or transferee in connection with the DDA; and iI) Second, to reimburse the Grantee, its successor or transferee, up to the amount equal to the sum of: {1}the Purchase Price paid to the Grantor by the Grantee for the Property (or allocable to the part thereof] ; and (2) the costs incurred by the Grantee for the development of the Property and for the improvements existing on the Property at the time or reentry and repossession, including costs for plans, reports, studies and other like matters; and (3) all funds advanced by Grantee in connection with acquisition of the Third Party Parcels or clearance, environmental testing and remediation of the Site; less (4) any net gains or income withdrawn or made by the Grantee from the Property or the improvements thereon. iii) Any balance remaining after such reimbursements shall be retained by the Grantor. 7. The Grantee agrees for itself and any successor in interest not to discriminate upon the basis of race, color, creed or national origin in the sale, lease, or rental or in the use or occupancy of the Property hereby conveyed or any part thereof. Grantee covenants by and for itself, its successors, 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 race, color, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall the Grantee itself or any person claiming under or through it, establish or permit any such practice or pmetices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub -tenants, sublessees, or vendees in the Property. The foregoing covenants shall run with the land. 8. Prior to the issuance of the Certificate of Completion of the Property (as defined in the DDA), the Grantee shall make no appeal or challenge of an assessment of the fair market value of the Property for property tax purposes that would result in reducing the assessed value below Two Million One Hundred Fifty Nine Thousand Dollars ($2,159,000.00). 9. Upon the issuance of the Certificate of Completion for the Property pursuant to the DDA and for the following seven (7) years, the Grantee and its successors and assigns shall make no appeal or challenge of an assessment of the fair market value of the "Commercial Lots" (as defied in the DDA) for property tax purposes that would result in reducing the assessed value below Seven Million Five Hundred Thousand Dollars (S7,500,000.00), as aggregated across the Commercial Lots. The foregoing shall not prevent a reassessment below Seven Attachment 7 Page S of 13 SFh:G: SF-96Agree:Mr,h 1248 17J9,96 Million Five.Hundred Thousand Dollars ($7,500,000.00) in cases of damage or destruction of all or a portion of the, Improvements on the Commercial Lots, pending reconstruction of the Improvements. The assessed value may be spread across the Commercial Lots on any basis, so long as. the aggregate value is met. Except for temporary reduction in the event of damage or destruction as set forth above, should the assessed value of the Commercial Lots be reduced such that : the total assessed value of the Commercial Lots is less than Five Million Dollars $5,064,000.00) as aggregated across the Commercial Lots, then the Grantee and its successors -and assigns shall agree to an increase in assessed value to not less than Five Million Dollars ($5,000,000.00). • The foregoing shall apply to all transfers, assignments and bankruptcy proceedings, but shall tenninate in the case of a transfer due to a foreclosure or deed in lieu of foreclosure to a commercial lender unaffiliated to Grantee. Upon the transfer of all interest in the Property by Grantee or any successor to an unaffiliated entity, the transferor shall have no further liability with respect to events occurring after the date of transfer. Following the seventh (7th) anniversary of the initial issuance of the Certificate of Completion for the Property, Grantor shall,. at Grantee's request, execute, acknowledge and deliver to Grantee. a document, in recordable form, acknowledging the termination of the provisions of this paragraph, and that these provisions are of no further force or effect,. • 10. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest permitted by paragraph 5 of this Grant Deed or the DDA; provided, however, that any subsequent owner of the Property shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such owner's tide was acquired by foreclosure, deed in lieu of foreclosure, trust sale or otherwise. 11. All covenants contained in this Grant Deed shall be covenants running with the land. Grantee is obligated to develop the Improvements on the Property and the covenants contained in paragraphs 5 and 6 shall terminate and shall become null and void upon recordation of a Certificate of Completion issued by Grantor for the Property, or the applicable Lot therein. Every covenant against discrimination contained in paragraph 7 of this Grant Deed shall remain in effect in perpetuity. 12. All covenants without regard to technical classification or designation shall be binding for the benefit of the Grantor, and such covenants shall run in favor of the Grantor for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or remain, an owner of any land or interest therein to which such covenants relate. Subject to the applicable cure periods as set forth in Section 501 of the DDA, the Grantor, in the event of any breach of any such covenants, shall have the right to exercise all rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. Attachment 7 Page 6 of 13 SF/s:G.SF-96Agree:Atch 1209 12/[2/96 13.. Both before and after recordation of a Certificate of Completion, both Grantor, its • successors and assigns; and Grantee, and its successors and assigns, shall have the right to consent and agree to changes in, or to eliminate in whole or in part, any of the exceptions, reservations, restrictions or covenants contained is this Grant Deed without the consent of any 'tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. The covenants contained in this Grant Dxd, without regard to technical classification shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty. Any amendments to the Redevelopment Plan which change the uses or development permitted on the Property, or otherwise change any of the restrictions or controls that apply to the Property, shall require. the written consent of Grantee, or the successors and assigns of Grantee in and to all of the fee title to the Property, but any such amendment shall not require the consent of any tenant, lessee, easement bolder, licensee, mortgagee, trustee, beneficiary under a dad of trust or any other person or entity having any interest less than a fee in the Property. All capitalized tCTMS not otherwise defined in this Grant Deed shall have the meaning prescribed for that term in the DDA. Attachment 7 ' Page 7 of 13 SF/s:G.SF-96Agra:Atch 1208 1 Z9i96 IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be cxecuted-on their behalf by their respective officers hereunto duly authorized, this day of ,199_ THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTrNGTON. BEACH, a public body corporate and ' politic By: Chairman By: Executive Director ATTEST: Secretary [Signatures Continued on Next Page] Attachment 7 Page 8 of 13 SFh:G:SFA6Agree:Atch 1208 12M96 • The undersigned Grantee accepts title subject to the covenants hereinabove set forth. • 'IT DEVELOPMENT COMPANY,- LLC, a California limited liability company By: John Tillotson By: John Tsai By: Mike Roberts Attachment 7 Page 9 of 13 SF/s:CrSF4"grtc Atcht208 l2/$/'96 STATE OF CALIFORNIA ) • ) ss. 'COUNTY OF ORANGE. } On ,1996, before me, ... . . Notary Public personally appeared known to me (or proved to me on the basis of satisfactory evidelce) to be the person who executed this instrument as the (insert.'title of -the. officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of ,199 before me, the undersigned, a Notary Public in and for said State, personally appeared Imown to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the ('inert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public Attachment 7 • Page 14 of 13 S F/s:G: S F-96A gr=.A tch 1208 12M96 STATE OF CALWORNIA ) ) ss. COUNTY OF ORANGE. ) On , before me, the undersigned, a Notary Public in and 'for. -said State, personally appeared personally !mown to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On _ , before me, the' undersigned, a Notary Public in and for said State, personally appeared , personally !mown to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the Iimited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. ' WITNESS my hand and official seal. Signature of Notary Public Attachment 7 Page 11 of 13 SFIs:G:SF-96Agr e:Atch1208 1Z"6 STATE OF CALIFORNIA ) • ) ss. COUNTY OF ORANGE. } On , before me, the undersigned, a Notary Public in and for .said State, personally appcared , personally known to me or proved to me on the basis of satisfactory evidence to be the person 'who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited Iiability company executed the same. ' WITNESS my hand and official sea.'.. Signature of Notary Public Attachment 7 Page 12 of 13 SFls:G: S F-96Agree:Atrls 120 8 12M96 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Attachment 7 . Page 13 of 13 SF/s.0.SF.96Ag= Atchl208 I ZM% ' ATTACHMENT NO.8 ENVIRONMENTAL CONSULTANT REI!QKT SFls:G:SF-96Agree:Atth 1206 AmKhmnt E IZW6 . PROPOSED GROUND WATER WELL INSTALLATION WORK PLAN FOR THE CITY OF HUNTINGTON BEACH, REDEVELOPMENT AGENCY • SITE IOCA^'r'D AT: NORTHWEST CORNER MART AND OLIVE STREETS HU'NTINGTON BEACH, CALIFORNIA 92648 PREPARED FOR: CITY OF HUNTINGTON BEACH REDEVELOPMENT AGENCY 2000 MAIN STREET ' • HUNTINGTON BEACH, CiNLIFORNIA 92648 FOR SUBMITTAL TO: CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD SANTA ANA REGION 2010 IOWA AVENUE, SUITE 10.0 RIVERSIDE, CALIFORNIA 92507-2409 PREPARED BY: GEOREMEDIATION, INC. 3002 DOW AVENUE, SUITE 414 • TUSTIN, CALIFORNIA 92680 JANUARY 12, 1996 ' January 12, 1996 Log: 95-•257 City of Huntington Beach • Redevelopment Agency 2000 Main Street Huntington Beach, California 92648 Attn: Mr. Stephen Kohler Subject: Proposed work plan for the. installation of additional ground water monitoring wells at the site located at Main Street, Huntington Beach, California.. Gentlemen:. 1.0 INTRODUCTION This report presents a Proposed Work Plan for -the continuation of site characterization activity at the subject site located at the northwest corner of Main and olive • Streets, Huntington Beach, California•(see Figure 1, Site Location Map). This report also includes a summary of site characterization 'activity completed to'date and proposes conducting an air sparge/soil vapor extraction pilot test for determining the feasibility of this method for mitigating subsurface contamination. 2.0 SUMMARY OF COMPLETED SITE CHARACTERIZATION ACTIVITY J GeoRemediation, Inc. (GRI) performed a limited subsurface e soil investigation at the subject site as defined by Main. Street, Fifth Street, Orange, and olive Avenues- in 'late winter/early spring, 1990. Two former gasoline service, k -a ON Jn 'PIL IL6414 I wql n, im Tanuaz-1 12, 1996 Page 2 r stations were reported to -have been located on the subject however; no records were ,available detailing the location of the gasoline underground storage tanks. The purpose of the investigative activity was to determine if subsurface soil and/or ground water contamination was present at the site as a result of the former .gasoline service r station operations. On March 28, 1990, eight (8) soil borings were excavated in the perimeter planter in the northeast corner of the -site to depth ranging from 12 to 17 feet below current grade (bcg). No significant indications of soil"contamination were found during this. investigation. A report titled Summary of Investigative Activities dated April 10,. 1990, was published detailing the results of this investigation. Additional subsurface soil .investigative activity was performed in March, 1991, in the southeast (identified as Area A) and the northeast (identified as Area B) corners of the subject• site. Fifty soil borings were excavated on 20 foot centers at the.site; 20 borings in Area A and 30 borings in Area B (please see Figure 2, Boring Location Map). Subsurface soil contamination was found in three borings from 1 .. .Area A. No indications of soil contamination were -found in i the bpring in Area B. A report titled Summary Report of I LEGEND • 8 27 GR! BO'RI+1G - SAMPLE ANALYZED O B 34 GR1 WM? G 4P GRs BORNG IN PLANTER. MARCH.19W APPRQ.0 SrM QF. FORMER U GAS S M BLDG. OLIVE AVENUE S1S47 � 3't B 3 E-5 O O • O O $-L S'-� E-!D O _ r O ""Ft'? • O 1 � • 1 O O O • B--zt B-7214, 8-IS 0 o O -• O tr:zre 5-34 0 �- AREA 8 ,rAREA A 0 p • ovf. E-tom E-yo +•----,.� O%-&'k f O • O B EOS ,•� B0 .0 -WR �- b12Ty tfoc.E FORD G LOCATION MAP . • �: uR a:: SAHIIARY, LW f o 2 err+�nr� r r 1 January 12•, 1996 Page 3 r Preliminary subsurface Investigation dated October 4, 1991, was published detailing the investigation and findings. Based- an -the findings of the investigations described above, GRI proposed on September 25, 1992, to install 5 ground water monitoring wells and 8 soil vapor extraction wells in the southeast corner of the site (7-xea A. the northwest corner of Main Street 'and olive Avenue) to initiate remediation of contaminated soils and ground water associated with the former servicestation operations. A proposal and scope of work was submitted to Mr. Stephen Kohler, City of Huntington Beach, on May 3, 1993. At this time, other envircnmental consultants conducted supplementary investigations regarding the contamination problem at the northwest corner of olive and Main and submitted documents including the following: a site assessment workplan by Economy Environmental, Inc. (7/10/92); a Phase II environmental site assessment by Groundwater ' Technology (1/3/94); and a summary of soil and water investigations by McLaren/Hart Environmental Engineering Corporation (4/21/94). Economy Environmental's scope of work was limited to soil contamination within the right-of-way of an olive Avenue widening ,project. Activities performed- by ' f 3 ground Groundwater Technology included the installation o January 12 , Z9 9 6 Page 4 water wells at the former service station site. Ground water was determined -to be at a depth of 33 feet below the ground surface. MW-2, which was installed near to the former locations of the USTs, contained the only detectable concentrations of contaminants in soil and ground water samples. A ground penetrating radar study performed by McLaren/Hart found a buried hoist and a waste oil sump in the western portion of the former service station site. A cone penetration test of subsurface conditions, also performed by McLaren/Hart, further delineated the extent of soil and ground water contamination. Soil borings and ground water well locations from all of the investigations are shown on Figure 2A. The approximate limits of soil and ground water contamination, as defined by the data collected from the previous site characterization activity, are shown on Figure 3, Approximate Limits of contamination. 3.0 PROPOSED GROUND WATER MONITORING WELLS 3.1 Ground Water Well Installation The subsurface investigative activity conducted at the site has defined the limits of ground water and subsurface soil contamination. In order to provide fcr i quarterly monitoring of the ground water contamination plume, additional ground water wells will need to- be - installed south and east of well MW-2. This Uill ensure 4 VRGBORING LOCATION MAPDATE: PROJECT: FIGURE: JANUARY.1996 51297 2 A vR LIMITS OF CONTAMIINAMONDATE: PROJECT: FIGURE: JANUARY.IM 51297 3 January.12; 1996 .Page 5 - that •there are'"clean" ground water monitoring wells surrounding the ground water contamination plume needed to -provide ground water quality monitoring data throughout the remediation project. GRI proposes to install two offsite ground water monitoring wells, MW-4 and MW-5, at the locations shown on Figure 4, Proposed Well Location Map. Required well permits for the proposed ground water monitoring wells will be obtained from the Orange County Health Care Agency prior to well installation. The proposed. ground water wells will be installed in a ' 10-inch diameter, mechanically drilled boring using hollow stem, continuous flight augers. A C-57 licensed well driller will be subcontracted for the well installation. Ground water well borings will be drilled to a depth of 'approximately 53 feet bcg, approximately 20 feet. below the soil/water interface or to a depth where at least 5 feet of competent clay is encountered to reduce the possibility of penetrating an aquiclude. The augers will be decontaminated by steam -washing prior 'to drilling each boring to reduce the possibility of cross contamination. ' r >m wwo�mr, wa VAR" anx"wm VRGPROPOSED WELL LOCATION MAP DATE: PROJECT: PROJECT: FIGURE:' ZAIZUARY.1996 51297 S 1297 "� January 12, 1996 Rage 6 Relatively undisturbed soil samples will be collected from each boring at 5 foot intervals beginning at 5 feet • bcg . using a :modified California split spoon sampler fitted, with three, 2-inch by 6-inch brass sample sleeves. Prior to each sampling, the sampler will be decontaminated by washing with a non -phosphate Alconox 'soap solution, rinsing twice with tap water and a final rinse with distilled water. Hollow stem auger and sample equipment decontamination water will be contained in labeled, 55-gallon drums pending laboratory analyses to determine proper disposal. The middle sample sleeve will be retained from each sampling interval, sealed with Teflon patches and plastic end caps at both ends, labeled, placed in a cooler with Blue Ice and transported to a State of California certified laboratory under strict Chain -of -Custody protocol for laboratory analyses. Details of the proposed laboratory program are presented in Section 3.5.1 of this report. The remaining two sample rings will be used for field screening and -soil classification according to the Unified Soil Classification System (USCS). Field screening, 'consisting of observation of soil samples for ' stains caused by chemical contamination and measurement i - of emissions of volatile organic compounds ' with a January 12., 1995 Page 7 • portable organic Vapor Analyzer (OVA), will be recorded on field -boring logs. Finalized boring logs will be } included in the summary report. Well boring soil cuttings and waste samples will be contained 'in labeled, 55-gallon drums pending laboratory analyses to determine proper disposal. Following the completion of drilling and sampling, the borings will be converted to ground water monitoring wells by installing well screen and blank casing. Four - inch I.D. by 0.020-inch slot, PVC schedule 40 well screen will be installed from the bottom of each boring to approximately 10 feet above the ecountered ground water level. The well will be completed with 4-inch I.D., PVC schedule 40 blank casing installed from the top of the well screen to ground surface. The annular spaces between the well casing and borehole will be fill ed.with Monterey f3 sand from the bottom of each boring to a depth of approximately 3 feet above the screen/casing interface. A bentonite seal of at least 3 feet thick will be installed on top of the 'sand. The remaining annular spaces will be filled with bentonite/cement grout from top of the bentonite seal to approximately 1 foot bcg. A traffic rated, metal well box will be installed flush with the ground surface and each well will be fitted with January 12, 1996 Page 8 a locking cap. construction details of the proposed ground water wells are shown on Figure 5, Ground water Well Schematic. 3.2 Well Development The ground water wells will be developed immediately following installation to improve hydraulic communication between the geologic formation and. the .well. Well development will consist of surge blocking the well and removing a minimum of three casing volumes of ground water using a 3.5-inch o.D., stainless steel bailer mounted on the drill rig. Prior to developing each well, the bailer will be decontaminated in the' same manner. as decontamination of sampler to reduce the possibility of cross contamination. The removed ground water will be contained in labeled, 55-gallon drums laboratory analyses to determine proper disposal. ' i . i } i 3.3 Well Survey After waiting a minimum of 72 hours following well installation to allow for. equilibration, the installed ground water wells will be surveyed. A surveyor's level, rod and measuring tape, along with a water and a gasoline gauging paste,• will be used to determine ground water elevation and thickness of separate phase. hydrocarbons. •�e r' TRAFFIC RATED WELL BOX BENTONITE SEAL 4" LD. PVC SCH 40 WELL CAMG MMiIll UM2'BENTON=nuc- •r: • = • . 4" LD. X 0.020" SLOT ' •'• • '-`�- ' ' ' PVC SCS 40 WELI/ SCREEN • `- N3 MONTEREY SAND • . I • VR GROUND WATER WELL SCMMATIC s Noy 7 51297 c�I: JANUARY, 996 January 12, 1996 PAge 9 r (free product), ,if it -exists, in each well. The results of the well survey will be used to confirm the direction • of local ground water flbw beneath the site. 3.4 Ground Water Well Purging_and Sampling Following the well survey, all ground water wells not ' 'containing free product will be purged and sampled. Ground •water well purging will consist of removing a minimum of three (3) casing volumes of ground water from each well using a 3.5-inch O.D., PVC bailer. The removed well purge water will be contained in labeled 55-gallon drums in the same manner`a, well development water. The bailer will be decontaminated prior to purging each ground water well using the same procedure as described earlier. The parameters of temperature, electroconductivity and pH will be measured after the removal of 0.0, 1.5, 2.0,.2.5, • and 3.0 casing volumes of ground water. Between the removal of 2.5 and 3.0 casing volumes of ground 'water, the temperature, electroconductivity and pH will -be evaluated to determine if equilibrium has been established. Variation between these two sets of readings of less than 1.0 degree Centigrade (1.8 degree Fahrenheit) for the temperature, +/-- 10% 'for the I Januar1 12, 1996 page 10 electroconductivity and 0.2 pH units will be considered as equilibrated. If these parameters are not met, an additional 0.5 casing volume of water will be removed and the evaluation repeated. Following purging and after the wells have recharged to 80 percent or more of their static conditions, ground water samples will be collected. Ground water samples will be collected from each well using a decontaminated, 1.5 inch O.D. stainless steel bailer. Decontamination Will be conducted in the same manner as described above prior to sampling each well. For each water well, bailed ground water wiil be carefully filled into two (2) 40 al glass vials so as to leave no head. space. The sample vials will then be labeled, placed in a cooler with "Blue Ice", and transported to a State of California : certified laboratory under strict chain -of -Custody protocol for analysis. Details of the proposed laboratory testing program are presented in the following section. 3.5 Laboratory Testing 3.5.1 Soil Samnles • Selected soil -samples collected from each boring will be Analyzed for Volatile Fuel Hydrocarbons (VFS) by Cal DES Method 8015 M. (gasoline) and for B January 12•, 1996 .Page 11. • ,volatile Aromatics, Benzene, Toluene, Ethyl -benzene '. and Xylenes (BTEX), by EPA Method 8020. The results ' of these analyses will be utilized to determine if -significant -indications of hydrocarbon contamination are present at these locations. if i • elevated hydrocarbon concentrations are found in the tested soil samples, additional soil borings and sampling will be required to fully document the limits of soil contamination. 3.5.2 Ground Water Samples All collected water samples will be analyzed for VFH using Cal DHS Method 8015 H (gasoline) and for BTEX using EPA Method 602. The results of these analyses will be used to determine the limits of ground water contamination at the site. If elevated hydrocarbon concentrations are found in wells W--4 through W-6, additional water wells and ground water sampling will be required to fully document the limits of ground water contamination. 3.6 DisDosal of Generated Wastes Soil boring cuttings, decontamination water, and ground water :removed during well development and well purging will be retained in 55-gallon drums and stored at the I January 12., 1996 Page 12 site for a maximum of 90 days pending laboratory test results for proper disposal. After review of the soil and ground water sample analyses, the solid and liquid waste will be profiled and removed to a licensed,facility•by a licensed contractor for disposal or recycling. Appropriate manifest 'documentation will be presented in 'the summary report. 4.0 PROPOSED AIR SPARGE AND VAPOR EXTRACTION WELL INSTALLATION It is GRI's opinion that the most efficient and effective method of mitigating the subsurface soil and ground water contamination will be to use air sparging/soil vapor extraction and treatment. This assessment is based on the defined limits and concentrations of the subsurface soil and ground water contamination plumes and GRI's experience with the remediation of subsurface soil and ground water petroleum hydrocarbon contamination in the downtown Huntington Beach area. In order to determine the feasibility of mitigation using air sparging and soil vapor extraction, GRI reco;ends that a pilot test be conducted. .An air sparge/soil vapor extraction pilot test will determine if this method will'be effective and provide data needed to set the treatment system design parameters. i January 120 1996 Page 13- In•order to conduct the pilot test, GRI proposes to install one dual air sparge/soil vapor extraction well and three soil vapor monitoring/extraction wells at the site. The proposed locations of these wells are shown on Figure 4, Proposed Well Location Map. 4.1•Dual Air Sparge/Vapor Well Installation The proposed dual air sparge/vapor extraction well will be.installed in a 10-inch diametgr, mechanically drilled boring using hollow stem, continuous flight -augers. These wells will be installed by the same driller subcontracted for the proposed ground water well installation. The well boring will be drilled to a depth of approximately 45 feet bcg, approximately 10 feet below the ground -water level in order to provide a sufficient zone of aeraticn below the water table. The augers will be decontaminated by steam -washing prior to drilling the boring to reduce the possibility •of cross contamination. Due to the proximity of the boring to ' well MW-2, no soil samples will be collected for laboratory analyses. Soil •sample analytical data collected during the installation of well MW-2 should be • representative of the: soils encountered- during the installation of the air sparge well. I u A aaruary 124 1996 Page 14 ..Following the completion of drilling, the boring will be converted -to a dual air sparge/soil vapor extraction well. A one foot section of 1.5-:inch I.D. by 0.020-inch •' slot, PVC -schedule 40 well screen will be installed approximately one foot from the bottom of the boring. The remainder of the well will be completed with 1.5-inch 'I.D., PVC schedule 40 blank casing installed from the top of the -well screen to ground surface. The annular space between.the air sparge well screen and the borehole will be filled with Monterey ;3 sand from the bottom of the boring to a depth of approximately 3 feet above (42 feet bcg) the screen/casing interface. A bentonite seal will be installed from 42 feet bcg to 25 feet bcg. A soil vapor extraction well will be installed from 25 feet bcg to ground surface in the same borehole as' the air sparge well. The soil vapor well will consist of 2- inch I.D. by 0.020-inch slot, PVC schedule 40 well screen installed from 25 feet bcg to 10 feet bcg. The remainder of the well will consist of-2-inch I.D., PVC schedule 40 well casing from; 10 feet-bcg to ground surface. The annular space between the soil vapor well casing and the borehole will be filled.with Monterey #3 sand -frog 25 feet bcg to 8 feet bcg. From 8 feet bcg to approximately 1 foot bcg the annulus will be filled -with bentonite 4 anuary 12-, 1996 Page 15 . grout, A traffic rated, metal well box will be installed 'flush with the ground surface to secure each well.. A schematic showirg.the construction details of the proposed dual air sparge/vapor extraction well is presented as Figure 6. 4.2 Soil Vapor Well Installation GRI proposes to install three soil vapor wells for the purpose of soil vapor monitoring and extraction. Proposed soil vapor iJell locations are shown on Figure 4. The proposed soil vapor wells will be installed in an -fl- inch diameter, mechanically drilled boring using hollow stem, continuous flight augers. These wells will be installed during the installation of the proposed ground water and dual air sparge/vapor extraction well. soil . vapor well borings will be. drilled to a depth of approximately 25 feet bcg. The augers will be decontaminated by steam -washing prior to drilling -each boring to reduce the possibility of cross contamination. Relatively undisturbed soil samples will be collected from each boring at foot intervals beginning at 5 feet • bcg using a modified California split spoon sampler i fitted with three, 2-inch by 6-inch brass- sample sleeves. Prior to each sampling, the sampler will be ,.• TRA.FI•'I C PUTED WELL B OX `co M]NIKUM V BENTONITE PLUG 2" LD. PVC SCH 40 WELL CASING N _ 2" LD. X 0.020" SLOT PVC SCH 40 WELL SCREEN N3 MONTEREY SAND MUM UM 2' BENTON= PLUG sz - f L5" LD. PVC SCH 40 WELL CASING BENTONTTE SEAL • •'r' B3 MONTEREY SAND ' 1.5" LD. X 0.020" SLOT PVC SCH 40 WELL SCREEN VR DUAL AIR SPARGENAPOR WELD SCHEMATIC s Now 51297 oATt: JANIIARY,1996 lauk 6 Janaarj 12-, 1996 Page 16' j decontaminated by washing with a• non --phosphate Alconox soap solution, rinsing twice with tap water and a final f ' rinse with distilled water. Hollow stem auger and sample • equipment decontamination 'water *ill*be contained in + labeled,. 55-gallon drams pending laboratory analyses to determine proper disposal. The middle sample sleeve will be retained from each sampling interval, sealed with Teflon patches and plastic • end caps at both ends, labeled, placed in a cooler with Slue Ice and transported to a State of California certified laboratory under strict Chain--of-Custody protocol for laboratory analyses. Selected soil samples will be analyzed at a State of California certified laboratory in order to supplement data collected during previous investigations and to verify the wells location in the soil contamination plume. Details of the proposed laboratory progr= -were presented earlier in Section 3.5.1 of this report. The remaining two sample rings will be used for field -screening and soil classification according to the Unified -Soil Classification System (USCS). Field •'screening, consisting of observation of soil samples for stains caused by chemical contamination t and measurement of emissions of volatile • organic compounds with a portable• organic Vapor Analyzer (OVA),. January 12, 1996 .Page 17 ..will be recorded on field boring logs. Finalized boring logs will•. be included in the summary report. Well boring soil cuttings and waste samples will be contained in labeled, 55--gallon drums pending laboratory analyses to determine proper disposal. Following the completion of drilling and sampling, the borings -will be converted to soil vapor wells. The soil vapor wells will consist Two-inch I.D. by 0.020-inch slot, PVC schedule 40 well screen which gill be installed from the bottom of each boring to 10 feet bcg. The remainder of the well will be completed with 2-inch I.D., PVC schedule 40 blank casing installed from the top of the well screen to ground surface.. The annular space between the well screen and borehole will be filled with Monterey #3 sand from the bottom of each boring to a depth of approximately 2 feet above the screen/casing interface. A bentonite seal will be installed from 8 feet bcg to approximately 2 feet beg. The well heads will be completed with steel, traffic rated well' boxes and well caps. A schematic showing the construction details of the propsed soil vapor wells is presented as Figure 7.% TRAFFIC RATED WELL BOX ENTONM SEAL a, 2" LD. PVC SCH 40 WELL CASING AfCfR fUM 2' BENTONITE PLUG • ' — N5 MONTEREY SAND • — 2" LD. X 0.020" SLOT - - •— PVC SCH 40 WELL SCREEN • w c x VAPOR wEM. SCHEMAnC j Mo.: 51297. ol►T�: JANUARY, IM �auR 7 January 12, 1996 Page 18 - 5.0 PROPOSED_ AIR_SPARGE/VAPOR EXTRACTION PILOT TEST In order to verify the feasibility of utilizing air sparging and soil vapor extraction to mitigate the subsurface soil and - ground water contamination, GRI recommends that a pilot test will be conducted. Data collected during the pilot test will also determine the treatment system design parameters needed to install .the most effective and efficient treatment system at the site. } 5.1 Soil VADOr Extraction Pilot Testing Procedure GRI will obtain a portable soil vapor extraction/internal combustion treatment system for use during the pilot study. GRI will ensure that the selected treatment system is properly permitted with the South Coast Air Quality Management District (SCAQMD). One soil vapor well will be selected for extraction testing and the remaining vapor wells will be used, for xi monitoring. The test well will be plumbed via fleble - piping and connected to the vapor extraction unit: The surrounding monitoring wells will be plumbed with- a fitting enabling the connection of a Dwyer Minihelic Differential Pressure Gauge (Minihelic). This will be ' used to detect any influenced vacuum caused by the test ! well. A water U--Tube manometer will be used to measure January 12-, 1995 Page 19 . influenced vacuum beyond the range of the minihelic gauge. A'Gastech portable organic Vapor Analyzer (OVA) ' will 7be used to measure the influent soil vapor Volatile Organic Compound .(VOC)concentration and SVE system effluent VOC concentration. The SVE system will be started and tested to ensure proper operation. After connection of the test well to the SW system and installation of the guages on the monitoring wells is completed, the SVE` system will be started and the test will begin. Each vapor well will - be tested individually using the following procedure: - Start SVE system and g- dually apply vacuum to the test well until an equilibrium is reached; - operate SVE system for two (2) hours and monitor the following parameters every fifteen (15) minutes: o Influent soil vapor Volatile organic Compound (VOc) concentration, , o SVE system effluent VOC concentration, o Soil vapor extraction flow rate, o'Test well vacuum, o Monitoring well vacuum, o SVE system process pressure, ' o SVE system process temperature, ' - Collect influent soil vapor sample after two (2) hours; i - Repeat test at next yapor.well. January 12,• 1996 Page 20. t During the testing procedure; preliminary data analysis will be performed in the following manner: . o If consistent or increasing influent VOC concentrations are measured with the OVA, the sVE f system will be said to be extracting contaminated • soil vapor; and o If a reduced vapor pressure is recorded at a monitoring location, that well will be considered to be within the radius of influence of the well under • test. Further data evaluation will be performed after all field data -is collected to allow the graphic representation of the estimated radius of influence for each well. If neither of the above.conditions is met within one (1) • hour, the test will be discontinued and the procedure will be repeated on the next well. If none of the vapor Wells respond within one hour, the original test well will be reconnected and the test period will be extended to five (5) hours. If no response in influent VOC concentration is noticed in the vapor wells after the conducting the extended test, other remediation options will 'be explored including ' excavation and. risk assessment. 5.2 Air Sparge Pilot -Test Procedure After the completion of the soil vapor extraction -pilot test, GRI gill conduct the air sparge pilot test. ,During the air sparge pilot test, 'GRI will monitor the January 12•, 1996 Page 21 soil •vapor wells and ground water wells surrounding the - air sparge/vapor extraction test well to determine the • radius of influence of .the; air sparge well. This monitoring will also be used to -determine if air sparging will result in undesired movement of the contamination plume. The four main parameters that will be recorded in the surrounding air sparge and ground water monitoring wells are dissolved oxygen content, well head Volatile Organic Compound (VOC) concentration, well head vapor pressure, and ground water- elevation. The testing procedure will be as follows: - Start soil vapor extraction system and apply a vacuum to the vapor extraction well for thirty (30) minutes to establish a baseline for. influent Volatile Organic Compound (VOCs); - Measure dissolved oxygen content in. the selected air sparge well and the surrounding air sparge and ground water wells; " - Measure ground water elevation in the surrounding air 'sparge and ground water wells; - Start air sparge system after baseline VOC reading is collected and. gradually ap ly compressed air to the selected air sparge well un 1 equilibrium is reached; - Run .air sparge"test for three hours and monitor the following parameters every fifteen (15) minutes:- o Soil vapor extraction well vacuum, 1 o Soil vapor extraction flow rate, o Air sparge flow rate, o Air sparge pressure, - January 12, i996 Page 22 o 2dr, sparge temperature, o Soil vapor extraction system influent voC concentration, . o VOC concentration in idle air sparge/vapor • extraction wells and surrounding ground water wells, o Dissolved oxygen concentration in idle air sparge wells and surrounding ground water wells, o Vapor .pressure in idle air sparge/vapor extraction wells and surrounding water yells. Repeat test at next air sparge well. A minimun of 72 hours after the test is completed, the air sparge well will be.retested at a different air supply pressure. Data collected from the pilot test will be used to determine the overall effectiveness of air sparging in removing hydrocarbon contamination from the ground water and to determine the radius of influence of the air sparge.wells. The radius of influence of the air sparge wells will be determined based on the increase in dissolved oxygen concentration and increased vapor pressure in the surrounding ground water wells monitored during the test. 6.0 REPORT PREPARATION Following completion of the proposed activities described in this Proposed Work Plan,. CRI will prepare and submit a January I2; 1996 Page 23'. summary report. This report will include a summary of all laboratory data, pilot testing data, and recommendations for the next phase of environmental activity at the subject site. Based'on the results of the air sparge/soil vapor extraction pilot study, a Proposed Remedial Action Plan Will be prepared and submitted as a portion'of the recommendations section of the summary report. 7.0 LIMITATIONS This . reportuas prepared using a degree of care and skill ordinarily exercised, under similar circumstances, by reputable Soil Engineers, Geologists, and Environmental Scientists practicing in this or similar* localities. Ho other warranty, expressed or implied, is =Wade as to the conclusions and professional advice included in this report. The opportunity to be of service is appreciated. If 'you have any questions, ,please call Andrew Zikeli at 714-573-0435. Very truly yours,, �° 9'• CSC GeoRemed lon; In y 5 `�� •�• a < Na Gzz� x arx T. rlin :f ames R: Col *rcFG���`o'��•! Senior Environmental Geologist Senior Engineer FOF C)"Uys � R. E. A. 3403 R. C. E. ewa; .'Ci Andrew Z' eli Project Environmental Chemist Staff Engineer R. E. A. 3404 ATTACHMENT NO.9 RECORDING REQUESTED BY: } AND WHEN RECORDED MAIL TO: ) } (Space above for Recorder's Use) This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By: Its: Dated: , 19 CER17EICATF DE ccoURI_Enow FOR CONSTRUCTION AND DEVF OP A. On or about the Redevelopment Agency of the City of Huntington Beach, a public body, corporate and politic, hereinafter referred to as "Agency," entered into an Amended and Restated Disposition and Development Agreement (the "Agreement") with JT Development Company, LLC, a California limited liability company (the "Developer"), which Agreement provides for the "uisition, disposition, and development of . . certain real property (the "Site") situated in the City of Huntington Beach, California, and more Attachment 9 Page 1 of 6 ' SFIs:G:5FA6Agm*ch1209 Attachment 9 121&'96 particularly described on Exhibit "A" attached hereto and made a part hereof by this reference. As required.in the Agreement and as referenced in the Grant Deed, the Agency shall famish the Developer with a Certificate of Completion upon completion of construction, which Certificate shall be in such form as to permit it to be accorded in the Recorder's Office of Orange County. B. ' The Agency. has conclusively determined that the construction on the Site described hereinabove required by the Agreement and the Grant Deed (the "Construction") has been satisfactorily completed. NOW, 7TIEREFORE, the parties hereto certify as follows: . 1 1. As provided in the Agreement, the Agency does hereby certify that the Construction has been fully and satisfactorily performed and completed in compliance with the Agreement and the Grant Decd. 2. The conditions upon Developer and all obligations of Developer under the Agreement are discharged, except as set forth in the Agreement. 3. Nothing contained in this instrument shall modify in any other way any other provisions of the Grant Deed executed and recorded pursuant to the Agreement. 4. After recordation of this Certificate of Completion, any person or entity then owning or thereafter purchasing, leasing, or othem ise acquiring any interest in the Property will not (because of such ownership, purchase, lease, or acquisition) incur any obligation or liability under the Agreement, except that such party shall be bound by -any and all of the covenants, conditions, and restrictions of the Grant Deed or the Agreement which expressly survive such recordation. 5. This Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the improvements to the Property, nor any part thereof. This Certificate of Completion is not a notice of completion referred to in Section 3093 of the California Civil Code. b. The Recitals above are incorporated in full as part of the substantive text of this Certificate of Completion. Attachment 9 Page 2of6 SF/s:G:SF-96AZ=:Atch 1202 Attachnxnt 9 12IH196 IN WITNESS WHEREOF, the Agency has executed this certificate this day of ,19 THE REDEVELOPMENT AGENCY OF THE CrN OF HUNTINGTON BEACH By: Executive Director ATTEST: Developer hereby consents to the recording of this Certificate of Completion. JT DEVELOPMENT COMPANY, LLC, a California limited liability company By: John Tillotson By: John Tsai By: Mike Roberts Attachment 9 Page 3 of 6 SF/s:Cr.SF-96Agee:Atch 12D8 Attachment 9 12/M STATE OF CALIFORNIA } ) ss. COUNTY OF ORANGE ) On this day of , 199_, before me, the undersigned, a . Notary Public in and for said State, appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the Execu*I- ve Director of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Notary Public (SEAL) STATE OF CALIFORNIA ) COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official sea]. Signature of Notary Public Attachment 9 Page 4 of 6 SFh:G:SF-96 V=:Atch1208 Attachment 9 121&96 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE } On • before me, the undersigned, a Notary Public An and • for . said State, personally appeared personally k3iown to me or proved to me on the basis of satisfactory evidernx to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On before me, the undersigned, a Notary Public in and for said State, personally appeared _ personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachm:nt 9 Page 5 of 6 sF1z:0SF-96Agroe:AM i l209 Attachmnt 9 1218r96 EXHIBIT A LEGAL 1 —SCHI S?N. OF P&QERTY Attachment 9 . Page 6 of 6 SF1s,G.SF-%AVwAtch l20l Attachment 9 12/&96 . SF/s:G:SF-%Agmc:DDA• 1208 Attachment 10 12/&96 ATTACHMENT • 10 �Q� ORANGE COAST TIjLE COMPA • 640 North T st Ave--:e Santa Ana, Cali forn:.a 92705 (714) 558-2S36 - NAB DEVELOFM� 2500 La Fayette Ave. • Newport Beach, Ca 92663 Late: August 5, 1991 Attenticn: Jchnt Newccab Yc r NO. Order No. 16a013-5 Dated as of July 31, 1991 at 7:30 A.M. In response to the abcve 7GefeTetred application for a policy of title insr=e, Cramp_ Cc st Title C =any hereby rep�i that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Inscr:•ance de=ibirx7 the land end the estate or interest therein hereinafter set forth, ircuri.rg against loss which may be sustained by reason of arrj defect, lien or riot shown or referred to as an Zceptio9n below or not excluded F coverage pursuant to the primed Schedules, Caditicns and Stipulations of said pony fores. . Vie printed Emcepticns and E=lusicrs fray the c :vexnage of said Policy or Policies are set forth in SchedLde 1 and Schedule 2 (c=rtid) attached. Cries of 'the Policy fo,s should be reed. ?S.ey are available from the office u ich is..-ve3 this report. This repox (arri any supplements or amerrbwtts hereto) is issued solely for the Pmrpcse of facilitating the issuance of a policy of title insurance and no Liability is assumed re-eby. 1f it is desired that liability be ass=3ed prior to the issuance of a policy of title insurance, a Biz-4er or C=mitment stould be , requested. '�,.�� . .,� �`?'�-', �✓ter. SUSIE JACOBS N Title Officer The fora of policy o. title insurance =nte=plated by this report is: A Clta Standard Cove -rage - 1990, CXaner's Folicf. • The estate or interest in the land her+eJumfter described or referred to covered by this Renart is : A Fea. Title to said estate. or interest at the date hereof is vested in: , Sc= iF''r%'nRT'r "A" attached. 1 .Qr-�er No. 168013-5 JX!E5 E. IOUM and JC M F3=, husband and wife as joint tenants, as to an t-divided cre+Alf intarcst and IALTD M. azmANn, a ma=ed ran as his sole and sgrarate -Prime-'ty, as to an m-divided orb=1 f inane -et, as tenants in c=m as to Parcels I & II. cM of PEAT, a Mmicipal ccrporaticn, as to Parcels III, V, VI, Vim, Ix'. X, XI, XII, =' IUrI'IlrjW Wmj RFIE.VEMP.M r AMCL, a Pudic body gate and politic, as to Parcel IV. JA,ISS WCOM NITER and JCW ic=, husband and wife, as to Parcel VIII. GYde_r No. 16a013-5� The land' referred t.-j ' is this Pzport is situated in the state of Californtia, Comty of Orange and is des--ibed as follows; Parcel 1 •' Lots I and 3 in Blocti 304 of F1zt. —= ton Beach, in the City of Ht=,tingtcn Bead, as pe; man recorded in Bock 3, Page 36, of - Mi scellarA== Vz s, in the office of the County Res of said County. EXCFFr THEREE."XM all oil, gas, Minerals and other hydrocarbon substamms lying below a depth of 500 feet witbc= any rictr to enter upon the surface or the subsurface of said land above a depth of 500 feet, as provided in irst: m. its of rewrd. Parcel II:• Lcts 2, 4, 6 and 8 in Hloak 304 of Bmtirr;ton Beach Tract in the City of Beach, as sham on a map recorded in Book 3, Pace 36, of 1wars, in the office of tha County Rer=fier of said County. Except the NordT-x�terly 10 feet of said Lots as nr� by the City. of Eomach by final De=e°' recoreied December 3, 1923, in Bflak 500, Pie 278 of Demos, Ards of said Orange County. roC —= T ZMM C. . all oil,. gas, minerals l s aroth 3 er rsu `a?xes lyiri; belcv a depth of 500 feetwithort any right to enter upon the surface or the st surface of said land above a depth of 500 feet, as provided in inst.-aments of I>e--- -1 III: Lot 5 and the Sout`a�ly 8 inches of Lot 7, Stock 304 of the Huntingtan Bead Tract, in the City of Bmitingt= Beach, as per map thereof recorded in Bonk 3, . Page 36 of Miscellaneous Mans, rec ds of Grzrqe sty, California. __IrICNS CaTm=; .. PAGE 2 Chile_z' No.• � 168013-5 ' &=; T Th-ERMM all oil, gas, mine_* is and other hydr=utm substances lying belcrr a depth of 500 feet withart any right to enter u = the surface or the 'suh_--.zrfaae of said land abode a •depth of 500 feet, as prvvided in of record. Parcel IV: tut 7 in Block 304 of Beach, in ttm City of M=Ungtm Beach, . as per rap recorded in Book 3, Page 36 of MiscelLvxxm Maas, records of Orange Cbmty, C31.ifornia. ExceptiM the 8 inches. ECCfPT Ti S all oil, [JcLS, mir*xls and other lry&!-! - I—L =bstances lying belcw a depth of 500 feet withant any right to eater upon the surface or the subsurface of said land above a death of 500 feet, as provided in instn=ents of reccrd. Parcel V: ' Lot 9 in Block 304 of Hxit�n Beach, in the City of Beach, as per trap x riled in Book 3, Pare 36 of Misoe? laneazs Maps,, rec ds of Orange Ca--rLy, California. Th=-RCM all oil, gas, minerals and other hydrocartcn vabstances lying below a depth of 500 feet withrut any right to enter u== the surface or tsm ice of •said land above a depth of 500 feet, as provided in irmtxumm= of record. Parcel VI: Iot io in Block 304 of the Bead Tract, in the City of Bmtingtcn Beach, as per map recorded in Book 30 Faye 36, of JAcellaneois Maps, in the cffi a of the Cxxmty Reoczder of said County. Excgat the Nortbwest rly 10 feet of said Lot as coed by the City of Bxxtingtan Heads by final decree zear-,U d Dember I, 1923, in Book 500 Page 278 of Deeds, records of said orange C =Tty. E=T THUMFPCK all oil, gas, minerals and other substances lying belcw a death of 500 feet wits ut any right to eater aeon: the surfa,aa or the sttb trface of said land above a depth of 500 feet, as provided in ins s of rec=d. Parcel VII: Lata 11 and 13 in Block 304. of Beach", in the City -of Beadz, as per :rap recorded in Book 31 Page 36 of MJ_SCe3lanecL—S Maps, recur« Of Ora i e City, Califomia.. =Y=CUS CaTM-U- 7... P M 3 Cr.:er No. ? 53013-5 Ems'_' TF•�i all • oil, gas, minerals arxd other hydro ar5cn lyirxJ below a death of 500 feat wit*ycut any right to enter tarn the sisfaae or the sabsul�face'_of --Aid land ibcve a depth of 500 feet, as provided in of re=rd. Pa_ —el VIM Lots 12 and 14 in Block 304 of P.�.mtingten Beach Tact, in the City of RmUngtM Beach, as per map reoor°..ed in Back 3, Page 36, of Misce11arxmm Maps, in to office of the Ccuxnty Peccrdear of said Cozmty. Ex=Vt the Ncrttwestexly 10 feet of said Lets as coed by the City of F-IM` M Beach by final de=mes re=ded Dwenbet 1, 1923, Hock 500 Pace 278 of Dees, rec=ds of said orange C.'otiaaty. E(CE:Pr � all -oil, -cis, minerals and other hwdr,-m stances lying below a depth of 500 feet witshc= any rigs t to enter upm tie suaiaee or the szbsarface of said land above a nth of 500 feet, as prcvided in instt=en s of rec=d. . Peel IX: Lcts 16 & 18 in Blocs 304 of Bzit� Beach, in to City of H=ftirigton Beach , as pe>: rzp recorded in Ek:dc 3, Page 36 of MiscellaneaMars, rec's of Carte C=rty, C alifc=da. Z=ept the Noa:t westerly 10 feet of said Lets as wed by the City of Bmtir)r-= Beath by final, de,ees re=ded 1, 1923, Book 500 Page 278 of Dees, records of said oranre Ccamty. c'X=r MM;M °i all oil, gas, minerals and other lying below a depth of 500 feet Wit' M any right to enter tenon the surface or -the suhsurface of said land above a depth of 500 feet, as pa:vvidsd in of rec=d. Parr -el X: Lots - 15 & 17 in Block 304 of Beach, in the City of Beach, as shac.ri en a man thereof re=-ded in Book 3, Pace 36, of M� Maps, records of said orange Ca=ty. E =r =M:F i i all oil, gas, Mines � and other hydrocarbon substances lying -below a depth. of 500 feet witImut any right to eater Won the surface ar the subsurface of said land abcve a depth of 500 feet, as prcvided in instruments of record. P'arCP1 XT : pots 19, 21, 23, 25 and 27 in Block 304 F=It�n Bch, in the CitY Of F'lntfrq,-w~n Beach, as s.'=wn cn a man toe_eof se=rdad #n Bock 3, Fzre 36, of M>scel1arAcis Mars, in the office of the C=rt`y geGar..er of said Canty. E(C�ws cmcn=... PRE 4 Crder Na. l6a'013-5 Ea= WM=- KH all' oil, gas, . minerals and otter lying below a depth of 500 feet. without any riot to enter upon the surface or the sabs=face -of said land above a depth of 500 feet, as provided in ,of re=r3. Pal XLi: Lcts 20,. 22, 24, 26 in Block 304 PAmtir ton Bead, in the City of FAmtington Bead, as shown on a neap re=rded in Book 3, Pare 36, of M' FZPs, records of Czan ge C=Tty, CalifonLi.a. Fiat the Nort.�'iw� terly 10 feet of said Lots as cwxlemed by the City of Beach by final Decree recorded Dem=ber 80 1923, in Book 500, Page 278 of Deeds, re=xds of said orange County. . 7 all oil, gas, minerals and other hXth:oc bon lying below a dq7th of 500 feet without any rigFt to enter u:cn the surface cr the S marface of said land above a death of Soo feet, as prcvidec3 in of record. Pa--tel 7DLrI: At the Cate hereof e-xmptiors to cave -rage in addition to the � and i5c^.J.usicrs in said polic.1 fora wmad. be- as follows: Lot 28 in Block 304 of Hmtirigtm Beach, in the. City of ix ntin5'n Beach, as per mr) thereof recorded in Bank 3, Pace 36, of Mi scet t ane+r=*c Maps, rids of said Crime C=-rL-l. Except the Northw'+est,Pxly 10 feet of said Lots as wed by toe City of Beach by final. Decree recor•.kd Deoanber 3, 1923, in Book 5000, Page 278 of Deeds, rar_ozrds of said OrmVe Q=ty. Ek't"= MMM?34 all oil, gas, minerals s and other hydrorarbm vibstances lying below a death of 500 feet without any rigtu= to enter upon the surface or the satin=face of said land above a denth of 500 feet, as p=vrided in inst Meng of record. A. Gerp—r l and Special Taxes for the fiscal year 1991-1992. A lien riot yet payable. B. Mie following taxes have all been paid and are reported for proration PL= only. Geroxal and special Taxes for the fiscal year 1990-1991. Total Am7mt $2,409.84, Firs` nnstallment $1,204.92, Send . ` $1,204.92. Ccde -Area. 04-035, Assessors Parcel No. 024-143-12. DOmpticn acne. ECC=CNS C27MUM... PPCM 5 Order No. - 168013-5 C. •The follwing taxes have . all been paid and are reported for proration pur,=ses cnly. General -and Special Taxes for ttm fiscal year 1990-1991. Total.•. Amou= $3,874.74, First Installment $2,937.37, Second Tn-talImp-rtt • • $2,937.37.. Ccde Area 04-035, Assessors Parcel No. 024--143-17. Exmpticn D. 'Me foUcwirg taxes rave all been paid and are reported for proratim purpose, crly. General and Special Taxes for the fiscal year 2990-1991. Total Amount $60.30, First IngtalLment $30.15, Sid lmstallmmt $30.15. Code Area 04•-035, Assessors Parcel, No. 024-143-11. Dcempticn mxv--. E. The follcwinq 'taxes have all been paid and are repotted for proration purposes only. Gene-ra . and Special Taxes for the fiscal year 1990--1991. Total A=u tt $120.24, rirst llmmfl- $60.12, SeCCnd Irsttllment $120.24. Code Area 04-035, Assessors Parcel No. 024-143-10. Eaemptien Norge. F. The follows q taxes have all been paid and are reported for praratieri parpoves only. Gejeml -anti Special Taxes for the fiscal year 1990-1991. Total Am=nt $101.08, First Irs`'�t!,+,p}+.t! $50.54, Semi ink-a11�r $50.54. CCde Area (94-035; Assessors Parcel No. 024-143-19. Zxm ticn Nome. G. The following taxes have all been paid and are reported far proration purpcses only. Ge-neral and Special Taxers for the fiscal year 1990-1991. ' Total Apt $ • 90, First Inr`.31Lmeazt $ . 4 5, Second Tr�� l l mArgt $ .45. C ode Area 04-035, Assessors Parcel No. 024-143-08. Dompticn Norse. H. The follc;rin3 taxes rave all been paid and are reported for proration Purposes only. General and smcial Taxes for the fiscal year 1990-1991. Total Amaint $1,899.78, Fits:. Irm-,allment $949.89, .Seed Irs`..allmert $949.89. Came Area 04-035, Assessors Parcel No. 024-143=20. Exe=ticn none. I. 'The folly dirsg "taxes have all been paid and are reported for proration purposes only. General and Special Taxes for the fiscal year 1990-1991. Total Arm= t $.00, 'First $.00, Send $.00.. Cie Area 04-035, Assessors Parcel No. 024-143 24. Exemption Name. J. The follaA g taxes have all beet paid and are reported for proration p=pcses only. General and Special Taxes for the fiscal year 1990-1991. Total Ammmt $.00, First rlwo $.00, Ser—d • S.00. Code • Area 04-035, Assessors Parcel No. 024-143-04. ExmTticn None. K. The. follawirq taxes have all been paid arxi are reported for prornti nn purposes only. General and Special Taxes for the fiscal year 1990-1991. Total Amotmt $.00, First $.CO, Sec=xi Ier; I. $.00. 'Code Area 04-035, Assesscrs Parcel. No. 024-143-23. E mg3f n Nave. L. mie following taxes have all been paid and are reported •for ' PmzatiCn p =pcses only. General and Special Taxes for the fiscal year 1990-3991. Total A=mt $ . 00, First Yr15 a l mot $ . GO, Se=n3 Inca l L meet Y . 00 . Code Area 04-035, Assessors P= l No. 024-143-25. Ecmn.ticn NCne. . EXCZPMCNS CaAM M... FA E 6 Order No. 15a013-5 M. The following taxes rave all been paid and are - resorted for proration pxposes only. ' C-a-R zl and Special Twoes for the fiscal year 1990-1991. Thal Amamt $.00, First Ins`..allme_rtt S.00, Seed 00. Ccde Area .04-035, Asses ors Parcel No. 024-143-01. nompticn None. N. Mie following taxes have all been :paid and are repertad for prr-raticn cn.1y. Generral and Special T.—ces for the fiscal year 1990-1991. nitt - .Amomt $104.40, First $52.20, Secmd Installment $52.20. CCde Area 04--035, �ssassors Parcel No. 024-143-09. ^:'rt cn None. O. The lien of supplemental taxes, if any, assessed p=sLiant to the provisias of Sec-tion • 75, et sac. of the Revenue and T axatic n tide of the State of • • Cal � foznia. 1. A c=Lmi ty oil and cas lease affecting this and other property wm=ted by the owner of said land and by otheYs as owners of other land in the r.c ninny area,' for the te= and tenon the tt , crenm-tts . and ptrvisicrs therein provided, r�:rded Jammry S, 1985, in Book 2915, Page 187, of . Official Records. Dated: Mom ber 11, 1954. Tern: 20 years f''= data r.�-•eof and for so long t*iereafte*- as oil and cos are prcd=ed in paying cuazYtities. Lessor: Ray & Inns overacker. - Lesee: Trars=ntinental Oil Co. Tryc., a Calif. Corp. Said lease affects that poz'U.ion of said land lying below a depth of 500 feet fray the sure t1m eof with direct or 4=14ed right of entry en the surface thereof. The present cwrmr-4� of said leaseh4ld and other matte_-s affec-Jxxj tim interest of the lessee are rat &haven bew'ein Affects Lots 2, 4, 61. 8 10 and 12. 2. A amity oil and gas lease affec Arq this and other property execatted by the awner of said land and by others as awners of other land in the ccmmrzity area, far Lhe terra and tenon t!m trans, covenants and provisions the -rein provided, reaar•',�ed January 21, 1955, in Book 1931, page 512, of Official Retards. Dated: September 28, 1954. T e=: 20 years fr= date hereof and for so long thereafter as oil and gas are pr dLu--ed in Paying quantities.' Iessor: E. L. & Mary Clete. lessee: Beioil Corporation, Inc. . Said lease affects that portion of said land lying below a depth "of 500 feet frra the surface thereof with direr= cr i plied right of ' e.^txy cn the surface t-he- eof. E3CC�'I'rCi�S CanI;=... PP1,;c. 7 .Order 140.• 168013-5 .�:e present vwnership of said leasehold and other -matters affec�Uing the 'interest of the 'lessee are n t shown herein. • Affects Iots 1 and 3. - 3-: A c=uamit1 oil and gas lease affecting this and other prcperty executed by the owner of said land and by others as owrP_-s of other lard in the amity area, for the ta^+ and upon the te=s, covenants and provisions the_-ei provided, re=uded Ferry 25, 1955, in Boot 2974, Parse 169 ► of Official Records. Dated: January 15, 1955. Te=: 2 years froze date hereof and for so lmig thereafter as oil and gas are proczsed in paying 4vantities. Lessor: Claude & Cora Cook. Le see: Cleveland Petroleum Crvpany, a crpcuaticn. Said lease'affect..s that portion of said land lying below a depth of 500 feet from the surface thereof with direct or imalied right of entry on the: surface thereof. Mm present ow mzhip of said leasehold and other matters affeci-rig the interest of the lessee are not s.'7own he-e n. Affects Iatt 14, 16, 18, 20 and 22. 4. A deed of tust to se L=e an of $375, 000.00, and any other rn=tmts payable urs'er the tenor; thereof, recorded . iwaxth 31, 1987, as IrLs==v-_nt No. 87-172309, of official Records. Dated: Mani 12, 1987. Tzus"..ar: James E. Koller and Joan Koller, hestand and wife as joint tenants, as to an tmdvid+ed one-half interest and Iaw:v M. CAmrano, a married man as his sole and separate pracerty, as . to An tadivided one half interest, as tenants in coon TrustM: American Securities Carey, a cor. wation. Beneficiary: Wells Fargo Bank, N. A. , a National Barking Association. An assigmmnt of the lessor's interest under the lease referred to given as additional security for the payment of the secured by the deed of taw. above mentic ned, rec=ded Maw 31, 1987, as Irmt umpnt No. 87- 172310 cf official Records. Executed by: James E. Koller and Joan Keller, husband and wife ' as joint tenants, as to an u d vided one� inter-s t and ' Lmzro M. Guarano, a married man as his sole and sepa��te prqperty, as to an undivided one half intemst, as tenants in c=cn. In favor of: Wells Fargo Bank, Nation. Association- Affects Lots 1, 2, 3, 4, 6 & S. ECEPMcNs C7Cx mvm...FLU a -C r'er No. I5aoz3-3 5. A Geed • of t:u t to seoxme -an irdeixtecryess of $75,000.00, and any ot.`'.e: amounts payable fader the terms thereof, recorded March 150 1977, as ir5tsit•Ne.- 19736, in Book 12104, Pace 710, of Official Res. L:ated: • MArch 7, 1977. T us`=' : Jchn C. MMer :and Astrid T. Muller, h mb rid and wife, PecM Arm Cate, an urma_rried u%=an, and Michael H. Newton, a single man. Z��".-e: Peal state, a Panne -ship. Beneficiary: Paul N. Boo, and Margaret Elaine 8005, hmband and wife as joint tenants. Affects Lots 12 & 14. 6.. Rights of parties in possessicn of said land by reason of in, leases, if any. Kindly forra-+d said leases for car ex=ixiation. ILL..: PAYOFF ZNFUR-% ICN: Ncte: Sectim 12413.1, California Insurance Coc.'e, ply lc 7 a Assembly Bill 512, became effecUve January 1, 1990. MAs legislation deals with the: nt of turx?s c'exsited with any title - entity acring in an escrow of --%*escror capacity. Inx law recuires that all fins be depwited and collected by the title entity's escrow arxVor subes=cw a nmt prior to d; sbzrse +it any funds. Sage methods of funding may subject Roes to a boldiz-q period which Is expire be*ore any funds ray be dishnzed. In order to avoid any sh delays, all Dandlnq s.* aild be done through wire transfer, cartified deck or duxlm drawn cn Calif=nia financial ins-UtLittUons. Nate: This Ccamany does require a=rent Beneficiary ends prior to Closing. If the demand is expired and a c= t demand eannat be obtained, ouz . requir wts V= be as follows: . A. If this c=cany &=epts a ve_-bal update on the demand, we may hold an amamt equal to one manthiy mortgage paymeM. this hold will be up ound above t!•e ve•ttal hold the lender ray have stipulated. B. If this many carnet obtain a ver!. al update on the demand, wee will either pay off the• e=ined e nd or wait for the amended demand, at the dis=eticn Of the es=ow. E{C=mis c2mmm ... P_; G E 9 Q.-de_", Na. 163013-5 For Yas' d=mnience. . 08N2&- COAST TITLE , WM3 NG INS . DT—ET IAL F = (ABA 1.22201444) 695 Tcwn Center Drive Ccsta Mesa, M 92626 'Pcr-tI 08-038-104 Ref: Title Cr r and Officers Name Ncm: California State Sedate Sill 2319, effective Zmuazy 1, 1991, rem_ ixes t`,at t`A in all sales of (31if=iia real estate, utxxein the seller shows an out of state adtre s, withhold 3 1/3% cf the total sales 'price zs California State Inc=e Tax, subject to the variaus prcvisicrs of the lass as t%pnrein ccntam d. SJ:kr- Policl Rate: act IZW - i1ycicsures: Plats SadE.DULE 1 CAUFORNVtA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY - 19" 'be following matters are expressly. excluded from the coverage of this policy and the Company will not pay loss or damage, cc iuorneys' fees or expenses which Anse by reason oh 1. (a) Ariy law, ordinance or governmental regulauon (including but not limited to building or toning taws, ordinances. or regulatic .. tesiricting, regulating, prohibiting or relating to 0) the occupancy, use, or enjoyment of the land; (ii) the Character, dimensi or location of any improvement now or hereafter erected an the find: (i,7 a separation in ownership or a change in the dimension or area of the land or any parcel of which the land is or was a part: or {iv) environmental protection, or the effect of any viola • of these laws: ordinances or governmental regulations, except to the extent that a notice 01 enforcement thereof or a notice defect. lien or encumbrance resulting from a violation or alleged violation affecting the land his been recorded in the public recc at Date of Policy. •' (b) Any governmental police'power not excluded by (a) above. except to the extent that a notice of the exercise thereof or a notic a deiect. lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the p,; records at Date of Policy. Rights or eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser value without knowledge. i. t]efe-Us. liens. encumbrances. adverse !!Aims or other mutters: la) whether or not recorded in the public records at Date of Policy, but created. suffered, assumed or agreed to bi the insu claimant: Ib) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claknant and disclosed in writing to the Company by the insured clamant prior to the dale the insured Claimant became an insured under policy. ic) resulung in no loss or damage 16t the insured Claimant: (d) attaching or created subsequent to Due of Policy. or - (e) resulting in loss or damage which would not have been sustained at the insured Claimant had paid value for the insured mongag• for the estate or interest insured'by lilts policy. l;ncr.Iorceab+lily of the lien or the insur_Z mortgage because of the inability or failure of the insured at Date of Policy, or inabuity or failure of any subsequent owner of the indebtedness, to comply with the applicable doing business taws of the state in wi• the land is situated. lnvaNdity or uncnfurceabilky of the lien of the insured mortgas:, or claim thereof. which arises out of the transaction evidencec the iniured mortgage and is hasea coon usury or any consumer credit protection at truth in lending, law. Any Bairn, which arises out of the transaction vesting in the insured the estate or interest insured by this policy or the transac: creating the interest of the insured lender. by reason of the operation of federal bankruptcy, state insolvency or similar credit rights laws. • addition to the Exclusions, you are not insured against loss, costs, atiomeys• fees, and expenses resulting from: • Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessme on real property tx by the public records. Proceedings by a public agency which may result in taxes or assessments. or notices of such proceedings. whether or not shover the records of such agency or by the public records. • Any faum tights. interests or Claims which are not shown by the public records but which could be ascertained by an inspectiot the land or which may be asserted by persons In possession thereo(. • Easements, liens or encumluances. ur claims thereof• which are not shown by the puWic records. • Discrepancies. conflicts in boundary lines. shortage in area. encroachments. or any other facts which a correct survey would disck and which are not shown by the public records. • (a) Unpatented mining claims: tb) reservations or exceptions in patents or in Acts authorizing the issuance thereoh (c) water rig', claims or title to water, whether or not the matters excepted under (a). (b) or (c) are shown by the public reco, AMERICAN LAND TT1'L>; ASSC>CATION OWNER'S POUCY FORM B - 1970 (AMENDED 10-17 70) 50IEDULE OF EXCLUSIOmS FROM COVERAGE Any law, ordinance or governmental regulation tincluding but not limited to building and toning ordinances) restric6nx or regular or prohibiting the occupancy, use or enioyment of the land. or regulating the character, dimensions or location of any improvement r. or hereafter erected on the land, or prohtbitinS a separation in ownerships or a reduction in the dimensions of area of the Land. or effect of any violation of any such law, ordinance or governmental regulation. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the put records at Date of Policy. Defects. liens. encumbrances. adverse claims, or other matters la) created. suffered. assumed or agreed to by the insured Claim; (b) not known to the Company and not shuwn by the publi; recueds but known to the insured claimant either at ()ate of Policy or at the date such claimant acquired an estate or interest insured by this policy and not disclosed in writing by the insured claim to the Company prior to the date such insured claimant became an insured hereunder, (c) resulting i,s no loss or damage to the insu. claimant: (d) attaching or created subsequent to Date of Policy: or te) resulting in loss or damage which would not have been sustain. if the insured claimant had paid value for the estate or interest insured by this policy. SCHEDULE 1 (Continued) AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 1970 (Rev. 4-6-90) wiTH A.LT.A- ENDORSEMENT FORM 1 COVERAGE SCHEDULE OF EXCLUSIONS FROM COVERAGE following matters are expressly excluded from She coverage of this policy: 1. Any law. ordinance. or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulat or prohibiting the.occuoancy, use or enjoyment of land, or regulating the character, dimensions or location of any improvement nov hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land. or effect of any violation of any -such law, ordinance or governmental regulation. '. Rights of eminent domain or governmental rights of poiice power unless notice of the exercise of such rights appears in the put records at Date of Policy. J. Defects. liens. encumbrances. adverse claims. or other matters (a) created. surfered. assumed or agreed to by the insured claimz (b) not known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy o, the date such claimant acquired an estate or interest insured by this policy or acquired the insured mortgage and not disclosec writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder; (c) resulting no loss or damage to the insured claimant: (d) attaching or created subsequent to Date of Policy (except to the extent insuranct. afforded herein as to any statutory lien for labor or material or to the extent insurance is afforded herein as to assessments street improvements under construction or completed at Date of Policy). 4. Unenforceability of the lien of the insured mortgage because of failure of the insured at Date of Policy or of any subsequent owr of the indebtedness to comply with applicable "doing business laws" of the state in which the land is situated. i. Any claim, which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason of ; operation of federal bankruptcy, state insolvency, or simiiar creditors' rights laws. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - (4-6-90) WITH A.LT44- ENDORSEMENT FORM 1 COVERAGE EXCLUSIONS FROM COVERAGE �ne following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, cos torneys, fees or expenses which arise by reason 'of: (a) Anv law, ordinance or governmental regulation (including but not limited :o building and zoning laws, ordinances. regulations) restricting, reguiating, prohibiting or relating to W the occupancy; use or enjoyment of the land: (it) the charact• dimensions or location or any improvement now or hereafter erected on the land: (iii) a separation in ownership or a change in t! dimensions or area of the land or any parcel of which the land is or was a pan; or (iv) environmental protection, or the effect violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof or notice of a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in If public records at Date of Policy. (b) Any govemmental police power not excluded by (a) above. except to the'extent that a notice of the exercise therof or a notice a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the pubs records at Date of Policy. Rights of eminent domain unless notice .of the exercise thereof has been recorded in the public records at Date of Policy, but crr excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights or a purchas, for value without knowiedge. Defecm liens, encumbrances, -adverse claims or other. matters: (a) created. suffered, assumed or agreed to by the insured daimant: (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclose in writing to the Company by the insured claimant prior to the date the insured claimant became an insured unaer this polic- (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent that this policy insures the priority of the lien of th insured mortgage over any statutory lien for services. labor or material or the extent insurance is afforded herein as t assessments for street improvements under construction or completed at date of policy): or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage Unenforceabii►ty of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or th• inability or failure of any subsequent owner of the indebtedness, to comply with applicable "doing business laws" of the state in whic the land is situated. invalidity or unenforceability of the lien of the insured mortgage. or claim thereof, which arises out of the transaction evidencet- by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. Any statutory lien for services. labor or materials (or claim of priority of any statutory lien for services. labor or materiai, over the lien of the insured mortgage) arising trom an improvement or work related to the land which is contracted for and commencec subsequent to Date of Policy and is not financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advance. Any claim, which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason of lhE operation of federal bankruptcy. state insolvency, or similar creditors' rights laws. t SCHEDULE I (Condensed) IWIt:3UCAN tJWD TITLE ASSOCIATION RMDENmt TITLE fh+[5upma POUC7 - Ign EXCIL(ralONS Ir addition to the exceptions in Schedule B. you are not insured against loss. costs. attorneys` fees and expenses resulting from. l.� - Govtrnt enW police power. and the existence or violation of arty law or government regulation. This induces bul&ng and zoni ordinances and also laws and n_gulations concerning: land use improvements on the land land division .. environmental protection This exclusion does not limit the zoning coverage described in Items 12 and 13 of Covered Title Risks. The right io take the land by condemning it. unless a notice of taking appears in the public records on the Policy Oate. 3. Title Risks: that are created allowed, or agreed to by you that are known to you. but not to us. on the Policy Date - unless they appeared in the public retards. that result in no loss to you that first bffect your title after the Policy Date - this dons not limit the labor and material lien coverage in item a of Cove, Tide Risks. , 4. Failure to pay value for your title. S. Lack of a right to any land outside the area specifically described and referred to in Item 3 of Schedule A or in streets alleys. or watenwiO that touch your land. This exclusion does not limit tie access coverage in item S of Covered Tide Risks. - In addition to the Exclusions, you are not insured against loss. costs. attomeys' fees, and expenses resulting from: I. Any facts. tights, interests or damns which are not shown by the Public Records but which eoutd be ascertained by making ingt. of parties in possession of the land 2. Any liens or easements not shown by the Public Records. However. this does not limit the affimutive covwage in item a of cove• Title Risks. 3. Any facts about the land not shown by the Public Records which a correct survey would disclose_ However, this does not limit affin7utive coverage in Items 12 of Covered Title Risks. i. (a) Any water rights or claims or title to water in or under the land; (b) unparented mining claims; (c) reservations or excepts. in patents or in acts atsthotizfng the issuance thereof. ATTACHMENT NO. I 1 Recording Requested By and ) When Recorded Return To: ) } Brown, Winfield & Can.•�.oneri, Inc. ) 300 South Grand Avenue, Suite 1500 } Los Angeles, California 90071-3125 } Attention.: Dennis S. Roy, Esq. ) With a copy to ) City of Huntington Beach } 2000 Main Street ) Huntington Beach, CA 92648 ) Attention: City Clerk ) (Space Above this Line for Recorder's Use) (a) Pies. This Memorandum of Amended and Restated Disposition and Development Agreement ("Memorandum"), dated for identification purposes as of December 16, 1996, is entered into by and between THE REDEVELOPMENT AGENCY OF THE CITY OF HUNiTNGTON BEACH, a public body corporate and politic ("Agency") and JT DEVELOPMENT COMPANY, LLC, a California iimited liability company ("Developer"): (b) J2js=itj,2n pnd Develapment Agr=en Agency and Developer have ;xecuted an Amended and Restated Disposition and Development Agreement `DDA") dated for identification purposes as of December 16, 1996, covering that certain real property located in the City of Huntington Beach, County of Orange, State of California, more fully described in Exhibit "A" attached hereto and incorporated herein by this reference. All of the terms, conditions, provisions and covenants of the DDA are incorporated in this Memorandum by reference as though written out at length herein, and the DDA and this Memorandum shall be deemed to constitute a single instrument or document. Attachment I I Page 1 of 7 5F/z:G.SFA6Agrec Atch1248 , 12191➢6 (c) Puruose' of Memorandum. This Memorandum is prepared for recordation -purposes oniyand in no way modifies the terms, conditions, provisions and covenants of the DDA. In the event of any inconsistency between the terms, conditions, provisions and covenants of this Memorandum and the DDA; the terms, conditions, provisions and covenants of the DDA shall prevail. - Attachment 11 Page 2 of 7 SFh G:SF-46Agr":Atcli 1208 12l8l96 - . . The parties have executed this Memorandum at the place and on the dates specified • immediately, adjacent to their respective signatures. Executed ,19 at ' "Agency" THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic By. Chairman By: Executive Director Executed ,19 at "Developer" JT DEVELOPMENT COMPANY, LLC, a California limited liability company By: John Tillotson By: John Tsai By: Mike Roberts Attachment i 1 Page 3 of 7 S F/s:G:SF-96Agmc:Atch! 208 121& 96 STATE OF. CALIFORNIA ) • ) ss. COUNTY OF ORANGE } On this day of 199 before me, the undersigned, a Notary Public in and for said State, personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City • of Huntington Beach executed it. Signature of Notary Public STATE OF CALIFORNIA ) .) ss. COUNTY OF ORANGE } On this day of 199 before me, the undersigned, a Notary Public in and for said State, personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the ("inert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public Attachment 1 I Page 4 of 7 SFIs:G:SFr96A&=:Atch1208 12AV% . F STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On _ _ _ , before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE • ) On _ , before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. 5F1s:0:SF.96AVar.Atch 1208 114% Signature of Notary Public Attachment I I . Page 5 of 7 i STATE OF CALIFORNIA ) . ' ) ss. 'COUNTY OF ORANGE. ) On - - , before me, the undersigned, a Notary Public in and for , said State, personally appeared persorally known to me or proved to me on the basis of satisfactory evidence to be the person -who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachment 11 Page 6 of 7 SF1s.QSF-%AV=:Atch 1248 121M EXHIBIT "A" LBOAL. DE��$IPI`[QN Attachment 11 Page 7 of 7 S Fh:di:S F-%A tree: Auh 1208 * 1V&M AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT (THIRD BLOCK WEST) BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, ("AGENCY") ,,AND J T DEVELOPMENT COMPANY, LLC ("DEVELOPER') 1359.05 001063-000I I1/14/96 TABLE OF CONTENTS Page I. [§ 100] SUBJECT OF AGREEMENT . ........................... 1 A. [§ 101] Purpose of Agreement.; ............................ 1 B. [§ 102] The Redevelopment Plan . ......................... 2 C. [§ 103] The Site ........................................ 2 D. [§ 104] Parties to the Agreement ........................... 2 1. [§ 105] The Aaencv ............................... 2 2. [§ 106] The Developer ............................. 3 3. [§ 107] Prohibition Against Change in Ownership, Management and Control of Developer and Prohibition Against Transfer of the Site......... 3 E. [§ 108] Representations by the Developer .................... 6 F. [§ 109] Good Faith Deposit ............................... 6 II. [§ 200] DISPOSITION OF THE SITE . ........................... 7 A. [§ 201] Purchase of the Site ............................... 7 B. [§ 202] Escrow.........................................9 C. [§ 203] Conveyance of Title and Delivery of Possession. ...... 12 D. [§ 204] Form of Deed for the Convevance. ................. 1.2 E. [§ 205] Condition of Title . .............................. 12 F. [§ 206] Time for and Place of Delivery of Deed .............. 1 G. [§ 207] Recordation of Documents: Disbursement of Funds. .. 13 1359.05 001063-0001 11/14/96 1 H. [§ 203] Title Insurance .................................13 I. [§ 209] Taxes and Assessments ........................... 14 J. [§ 210] Occupants of the Site. .............................. 14 K. [§ 211] Condition of the Site ............................. 14 1. Disclosure ...........................................14 2. Cleanup .............................................14 3. Limited Warranties After eeMediation: Obligation to ont' ute...........................................15 4. Developer Indemnitv,.................................. 16 5. Developer Covenants..................................17 6. Developer Release .....:............................... 17 7. Definitions...........................................17 L. [§ 212] Prelimiriary Work ............................... 18 M. [§ 213] Conditions Precedent to the Convevance............. 19 N. [§ 214] Qeneral Plan 12csignation and Zgning of theSite: Subdivision Mep ApDroval ........................ 20 O. [§ 215] Submission of Evidence of Financial Commitments and Loan Closing. .............................. 20 P. [§ 216] Relocation ..................................... 21 III. [§ 300] DEVELOPMENT OF THE SITE..... .................... 21 A. [§ 301] Development of the Site.......... ................ 21 1. [§ 302] Scope of Development . .................... 22 2. [§ 303] Site Plan . ............................... 22 1359.0s 001063-0061 11/14/96 1 1 3. [§ 304] 4. [§ 305] 5. [§ 306] 6. [§ 307] 7. [§ 308] 8. [§ 309] 9. [§ 310] 10. [§ 311] 11. [§ 312] 12. [§ 313] B. [§ 314] 3. [§ 317] 4. [§ 318] 5. [§ 319] 1359.05 001063-0001 11/14/96 Construction Drawings and Related cuents. .............................22 Resew and Approval of Construction Drawings andRelated pocuments. ........... 23 Cost ofpevelgpment. ..................... 24 Demo �lition of Site .........................26 Const Aiction Schedule. .................... 26 Indemnity. Bodilylnjujy and Property Damage Insurance ......................... 26 City -and Other-Goyernmental Agency Permits ................................27 Rights gf Access .......................... 27 Local, .tate and Federal Laws. .............. 28 "Anti -Discrimination . ........... :.......... 28 MgIlgage. Deed of Trust. Sale and Lgnse-Back Financing: Rights of Holders. ...... 28 hlo Encumbrances -Except -Mortgages. Deeds ofTmst- or_Salc and Luse -Back for Development ............. 28 Ider hLot Qbligated to Construct Improvements.. .......................... 29 Notice of Default to Mortgagee or Deed Trust Holders: Right to Cure ................. 29 Failurc gf Holderto Cgml2lete Improvements ............................ 30 Right of the Aency to Care Mortjade or Deed of Trust Default ...................... 30 i.ii C. [§ 320] Right of the Agency to_Satisfy,Other Liens on the Site After Titic Passes... ......................... 31 D. [§ 321] Additional Amendment..... ....................... 31 E. [§ 3223 Certificate -of Completion ........................ 31 IV. [§ 400] USE OF THE SITE .................................... 33 A. [§ 4011 Construction ofIm_provements..................... 33 B. [§ 402] Affordabl_ ust'nd. .......................... 33 C. [§ 403] Parking Garaee................................. 33 D. [§ 404] Commercial evelopment. ....................... 33 E. [§ 405] llse5 in Accordance with RedevelopMent Plan, ondi c'minati ... ..........................34 F. [§ 405] Effect of V'olati n of the J_erms and Pmvisions this Atfeement After Completion of Construction...... 35 V. [§ 500] DEFAULTS AND REMEDIES .......................... 36 A. [§ 501] Defaults General. .. .......................... 36 B. [§ 502] Legal Actions. ................................. 36 1. [§ 5031 Institution ofLeeal Actions. ................ 36 2. [§ 504] Applicable Law ........................... 36 3. [§ 5051 Acceptance gf Service of PLoces§............. 37 C. [§ 506] Rights and Remedies AreCumulative . .............. 37 D. [§ 507] Inaction Not a Waiver_pf Default . .................. 37 1359.05 001063-0001 11/14/96 iv E. [§ 508) Remedies nd Rights Erior to Conveyances........... 37 1. [§ 509] Damazes. ............................... 37 2. [§ 510] Specific Performance . ..................... 37 3. [§ 511] inat"on by the Developer Prior to the Conveyance..............................38 4. [§ 512] Termination bvthe A_en yPrior-to the Conveyanc..............................39 F. [§ 513] Remedies of the Parties for Default After the Conveyance ....................................40 1. [§ 514] Termination and Damages . ................. 41 2. [§ 515] Action for Specific Performance .............. 41 G. [§ 516] Reentry and Revesting of Title in the Agericy After the -Conveyance ................................. 41 VI. [§ 601] GENERAL PROVISIONS .............................. 43 A. [§ 601] NQices.Demandsand Communications Between he Parties .....................................43 B. [§ 602] Conflicts of Interest .............................. 43 C. [§ 603] EnfoMed]2elav:-Extension of Tirr�esof Performance...................................43 D. [§ 604] No_r--Liability of Officials and Empl4vees of the Agencv and the Developer. ....................... 44 E. [§ 605] Entire -Agreement. Waivers. Consent and Approval..... 44 F. [§ 606] Memorandum of Agreement........ ............... 45 VH. [§ 7001 TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY...........................................45 1359.05 001063-0001 11/14/96 V WHEREAS, the Redevelopment Agency of the City of Huntington Beach a public body, corporate and politic (the "Agency") and Newcomb/Tillotson Development Company, a California general partnership, previously entered into a Disposition and Development Agreement dated as of March 5,1991 (hereinafter referred to as the "Prior DDA"); and NewcombfTillotson Development Company assigned its interest in the Prior DDA to JT Development Company, LLC, a California limited liability company ("Developer'); and Developer and the Agency desire to enter into an amended and restated Disposition and Development Agreement which will supersede and replace the Prior DDA and amend and restate all of the obligations thereunder; NOW, THEREFORE, this Disposition and Development Agreement ("Agreement") is entered into as of the day of , 199_ ("Effective Date"), by and between the Agency and the Developer. The Agency and the Developer hereby agree as follows: I. [§ 100] SUBJECT OF AGREEMENT. .. A. [§ 101] Purpose of Agreement. 1. The purpose of this Agreement is to effectuate the Redevelopment Plan (as hereinafter defined) for the Main -Pier Redevelopment Project (the "Project') by providing for the improvement of certain property situated within the Project Area (the "Project Area") of the Project, by assisting in the assembly, disposition, and development of that real property. The Project is to be developed as a mixed use project pursuant to the Scope of Development set forth in Attachment No. 3. These improvements and certain other improvements to be constructed by the Developer constitute the "Improvements," as more specifically defined in Section 302 of this Agreement. Pursuant to this Agreement, a certain portion of the Project Area, hereinafter identified as the "Site" on the "Site Map", shall be developed and improved by the Developer in accordance with the terms of this Agreement. This Agreement is intended to set forth a comprehensive plan for development of the Site, including the nature, design, processing, financing and construction of the Improvements, for the mutual benefit of the Agency and Developer. The disposition and development of the Site as provided in this Agreement are in the vital and best interests of the City of Huntington Beach (the "City') and the health, safet},, morals and welfare of its residents, and are in accord with the public purposes and provisions of all applicable state and local laws and requirements under which the Project has been undertaken. 1359.0s 001063-0001 11/14/96 1 B. [§ 1021 The Redevelopment Plzn. The Redevelopment Plan for the Project Area was approved and adopted by Ordinance No. 2578, as amended by Ordinance Nos. 2634 and of the City Council of the City of Huntington Beach. Such ordinances and the Redevelopment ;,an as approved and amended (the "Redevelopment Plan") are incorporated herein by reference. Prior to issuance of a Certificate of Completion for the entire Site, the Agency agrees not to amend, modify, or change the Redevelopment Plan for the Project Area in a manner that would affect the uses or development permitted on the Site, the restrictions or controls that apply to the Site, or any other aspect of the use and enjoyment of the Site in the manner contemplated by this Agreement, without the prior written consent of the Developer. Amendments to the Redevelopment Plan applying to other property in the Project Area shall not require the consent of Developer. C. [§ 1031 The Site. The "Site" is that portion of the Project Area so designated on the "Site Map" which is attached hereto as Agachr,pent No. I and incorporated herein by reference. The Site is described in the "Legal Description" which is attached hereto as Attachment No. 2 and incorporated herein by reference. The Site consists of the following parcels of property (collectively, the "Parcels"), which are identified on the Site Map: (i) those certain parcels owned by the Agency (the "Agency Parcels"); and (ii) that certain property, consisting of public alley located within the Site, which will be vacated and abandoned by the City and conveyed to the Developer in connection with redevelopment of the Site (the "Alley Parcel"). It is understood by the Agency and Developer that the existing Site will be subdivided substantially in accordance with a Tentative Tract Map (the "Subdivision Map") to be submitted by the Developer to City. The legal Iots created as a result of that subdivision (individually, a "Lot" and, collectively, the "Lots") wiIl consist of separate legal lots containing retail and office uses (individually, a "Commercial Lot" and, collectively, the "Commercial Lots") and separate legal lots containing residential condominium improvements (individually, a "Residential Lot" and, collectively, the "Residential Lots"). D. [§ 104] Parties to the Agreement. 1. [§ 105) The-A�ea ncv_. The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Lave of the State of California. The principal office of the Agency is located at 2000 Main Street, P.O. Box 190, Huntington Beach, California 92648. "Agency", as used in this Agreement, includes the Redevelopment Agency of the City of Huntington Beach and any and all assignees of or successors to its rights, po"Wers and 1 M AS 001061-0001 11/14/96 2 responsibilities. Whenever the Agreement refers to approvals or other actions to be taken by the Agency, such approval or other action may be performed by the Executive Director of the Agency or his or her designee. 2. [§ 106] 'h Developer. The Developer is JT DeveIopment Company, LLC, a California limited liability company. The principal office and mailing address of the Developer for purposes of this Agreement is 15272 Bolsa Chica Street, Huntington Beach, California 92649. The members of JT Development Company are John Tsai, John Tillotson, and Mike Roberts and the managing member is John Tillotson. By executing this Agreement, each person signing on behalf of the Developer warrants and represents to the Agency that the Developer has the full power and authority to enter into this Agreement, that all authorizations required to make this Agreement binding upon the Developer have been obtained, and that the person or persons executing this Agreement on behalf of the Developer are fully authorized to do so_ Whenever the term "Developer" is used in this Agreement, such term shall include any and all nominees, assignees, or successors in interest to the rights and obligations of the original Developer provided for by this Agreement. 3. [§ 107] Prohibition Against ange in Qwnership anag Ment and S,Qntrol of Developer and Prohibition Against Tran5felo f hq Site. The qualifications and identity of the Developer are of particular interest to the Agency. It is because of these qualifications and identity that the Agency has entered into this Agreement with the Developer. Consequently, prior to the Executive Director of the Agency issuing a Certificate of Completion with respect to the Site, or, as to each Lot within the Site, prior to the Executive Director's issuance of a Certificate of Completion with respect to such Lot (as provided in Section 322 below), no person, whether a voluntary or involuntary successor of Developer, shall acquire any rights or powers under this Agreement, nor shall the Developer assign all or any part of this Agreement or the Site, without the prior written approval of the Agency (except as provided below). A voluntary or involuntary sale or transfer of any interest in the Developer or the Site shall be deemed to constitute an assignment or transfer for the purposes of this Section 107, and, except as provided below, the written approval of the Agency shall be required prior to effecting such an assignment or transfer. Any purported transfer, voluntarily or by operation of law, in violation: of this Section, shall be absolutely null and void and shall confer no rights whatsoever upon any purported assignee or transferee. The Agency agrees that it will not unreasonably withhold approval of any assignment requiring its consent. 1M AS 001063-0001 11/14/96 3 Notwithstanding the foregoing, Develcper shall be entitled to make an assignment which consists of a mortgage, deed of trust, sale and Iease-back, or other form of conveyance for financing, provided that such assignment is made to a lender approved by the Agency pursuant to Section 215 of this Agreement and is for the purpose of securing a loan of funds to be used solely for financing the direct and indirect costs of constructing and operating the Improvements, including without limitation, any hard or soft construction coats, interest, fees, points, reserves or other financing costs, and all cost; of planning, designing, constructing, developing, leasing and operating the Improvements to be constructed by the Developer with respect to the Site. Notwithstanding any other provision of this Agreement to the contrary, Developer shall also be entitled, without Agency approval, to make an assignment, sale or transfer of this Agreement (or a portion thereof), the Site (or a portion thereof), or any interest in the Developer, in connection with any of the following: a. The conveyance or dedication of any portion of the Site to the City of Huntington Beach or any other governmental, public, or quasi -public entity, body or agency, including all public utilities, where such conveyance or dedication facilitates the development of the Site. b. A transfer of the Site, or any Improvements thereon, and/or the assignment of this Agreement to an entity over which the Developer, the managing member of the Developer, or a wholly owned affiliate of the Developer exercises operational and managerial control, if (i) the purchaser and/or assignee agrees to be bound by the provisions of this Agreement and any other agreements that the Developer and the Agency have executed in connection with the Project, and (ii) the Developer, the managing member of the Developer, or a wholly owned affiliate of the Developer holds more than a fifty percent (50%) interest in the profits and losses of such purchaser or assignee. C. Any transfer resulting from the death or mental or physical incapacity of any individual. d. Any transfer to a family member or in trust for purposes of estate planning considerations, provided that an existing managing member of the Developer, or any general partner or member of such managing member, shall retain exclusive operational management and control of the development of the Site and shall remain responsible for the obligations of the Developer hereunder. C. Any transfer of the Site or any part thereof or interest therein, as a result of the judicial or non judicial foreclosure (or conveyance in lieu thereof) of any encumbrance authorized by this Agreement. 1359.0s 001061-0001 11/14/96 4 f. Any transfer to a lender approved by the Agency in accordance with the right of such lender under its approved encumbrance to acquire an interest in the Site, the Developer, or this Agreement. g. Any transfer resulting from the leasing to occupancy tenants of that portion of the Improvements to be occupied by such tenants. h. The sale of individual condominium units, the conveyance of common area and easement rights in connection therewith, and the conveyance of fee and easement interests between the Developer and the homeowners association to be created in connection with such condominium interests; provided, that no sale of an individual condominium shall close prior to the issuance of a Certificate of Completion for the applicable Residential Lot Any transfer of an interest in the Developer as long as the managing member of the Developer retains operational management and control over development of the Site, provided such transfer does not affect more than sixty percent (60%) of the existing interests in the Developer and the Developer shall remain responsible for the obligations of Developer hereunder. a. Any transfer of an interest in the Developer resulting from a sale of publicly traded stock. No assignment of the Developer's obligations with respect to the Site for which Agency approval is required, specifically excluding assignments for financing purposes and the types of assignments identified above in subparagdphs (a) and (c) through 6), inclusive, shall be effective unless and until the proposed assignee executes and delivers to the Agency an agreement in form reasonably satisfactory to the Agency's attorney assuming the obligations of the Developer which have been assigned. Thereafter, the assignor shall remain responsible to the Agency for performance of the obligation assumed by the assignee unless the Agency releases the assignor in writing or all of the requirements in this Section 107 are fully satisfied and the assignor is not then in default under this Agreement, in which case the assignor shall remain responsible to Agency for performance of the obligations arising prior to the effective date of the assignment or transfer, and shall be released only from any obligation or liability arising subsequent to the effective date of that assignment. No consent or approval by the Agency of any assignment or transfer requiring the Agency's approval shall constitute a waiver of the provisions of this Section 107 with respect to subsequent transfers. The Agency shall approve or disapprove of any proposed assignee which requires Agency approval within thirty (30) days after Agency's receipt of a written request therefor. Any disapproval shall be in writing, shall specify the reasons for the disapproval and any steps that must be taken by Developer to secure such approval. The restrictions of this Section shall terminate upon issuance by the Executive Director of the Agency of a Certificate of Completion for the entire Site or, as to each Lot within the Site, upon the issuance by the Executive Director of a Certificate of Completion with respect to said Lot. 1359.05 001063-0001 11/14/96 5 E.. [§ 1081 ,]representations by the Developer. The Developer represents and warrants to the Agency as follows: 1. The Developer is duly established and in good standing under the laws of the State of California and has duly authorized, executed and delivered this Agreement and any and all other agreements and documents required to be executed and delivered by the Developer in order to carry out, give effect to, and consummate the transactions contemplated by this Agreement. 2. The Developer does not have any material contingent obligations or any material contractual agreements which could materially and adversely affect the ability of the Developer to carry out its obligations hereunder. 3. There are no material pending er, to Developer's best knowledge, threatened, legal proceedings, to which the Developer is or may be made a party or to which any of its property is or may become subject, which have not been fully disclosed in the material submitted to the Agency, which could materially and adversely affect the ability of the Developer to carry out its obligations hereunder. 4. There is no action or proceeding pending or, to the DeveIoper's best knowledge, threatened, requesting the dissolution or liquidation of the Developer and there is no action or proceeding pending or, to the Developer's best knowledge, threatened by or against the Developer which could affect the validity fnd enforceability of the terms of this Agreement, or materially and adversely affect the ability of the Developer to carry out its obligations hereunder. Each of the foregoing items 1 to 4, inclusive, shall be deemed to be an ongoing representation and warranty and shall continue in effect until issuance of a Certificate(s) of Completion for the Site. The Developer shall advise the Agency in writing if there is any change pertaining to any matters set forth or referenced in tre foregoing items 1 to 4, inclusive. F. [§ 109] Good Faith Deposit. The Developer has, prior to the approval of this Agreement by the Agency, delivered to the Agency a good faith deposit in the amount of Fifty Thousand Dollars ($50,000.00) (the "Developer Deposit') as security for the performance of the obligations of the Developer to be performed prior to the return of the deposit to the Developer, or its retention by the Agency as liquidated damages in accordance with the provisions of this Agreement. The Developer Deposit, at the option of the Developer, may be in the form of: (i) cash; (ii) cashier's or certified check; (iii) letter of credit; (iv) guaranty; or (v) other security acceptable to the Agency. If the Developer elects to post a letter of credit, guaranty or other security, it shall be in a form acceptable to Agency in its reasonable discretion and shall be issued by a financially responsible institution or entity. The Developer may change the form of the Developer 1359.05 001063-0001 11/14196 6 Deposit from time to time, at its option, to any other of the permitted forms of Developer Deposit. The Developer Deposit, if cash or certified cashier's check, shall be deposited in an interest -bearing account of the Agency in a bank or trust company selected by it. If, notwithstanding the foregoing, Agency fails to deposit the cash in an interest -bearing account, Developer shall notify Agency in writing of such failure, and Agency shall have fifteen (15) days after receipt of such notice to transfer such Developer Deposit to an interest bearing account. Agency shall have no liability to Developer for failure to maintain such Developer Deposit in an interest -bearing account until expiration of that fifteen (1S) day period. Upon termination of this Agreement as provided in Section 512(a)-(d), (0 or (g) of this Agreement, the Developer Deposit, including all interest payable thereon, or, if a letter of credit, guaranty, or other security, the proceeds thereof, shall be retained by the Agency as provided therein. Upon termination of this Agreement as provided in Section 511 or 512(e) of this Agreement, the Developer Deposit, and all interest thereon not previously released to Developer, shall be returned to the Developer by the Agency, as provided therein. The Agency shall be under no obligation_ to cam any minimum rate of interest on the Developer Deposit. Upon termination of this Agreement, interest earned shall be retained by or returned to the party entitled to the Developer Deposit at that time. If the "Conveyance" (as defined in Section 202) is effected, the Agency shall immediately return the Developer Deposit (together with any interest earned thereon not previously released to Developer) to the Developer, or, at DeveIoper's election, credit the Developer Deposit (together with interest thereon) to the purchase price of the Site. II. [§ 2001 DISPOSITION OF THE SITE. A. [§ 2011 Purchase of theSSite. 1. Pursuant to the Prior DDA, the Agency has acquired that portion of the. Site referred to in the Prior DDA as the `°Third Party Parcels" (hereinafter referred to as the "Third Party Parcels"; said parcels are depicted on the Site Map (Attachment No. 1)). In order to complete its assembly of the Site, the Agency shall, in accordance with Section 203 below and the Schedule of Performance, cooperate in the vacation by the City of the Alley Parcel. The Agency agrees to use its best efforts to cause the City to undertake or cause to be undertaken and diligently pursue or cause to be pursued all hearings and other acti oils ncrrssary to cause vacation of the Alley Parcel prior to the Conveyance. The Agency further agre-m, Promptly upon vacation of the Alley Parcel, to use its best efforts to assemble and obtain the convcywic-c, as necessary, of all interests required to vest the Agency with fee simple marketable title to the Alley Parcel in accordance with this Agreement so that the Agency will be in a position to vest such title in the Developer as a result of the Conveyance. 1359.05 001063-0001 1%/14/96 7 2. Pursuant to the Prior DDA, Developer advanced to the Agency One Million Nine Hundred Twenty -Two Thousand Dollars ($1,922,000.00) in connection with acquisition of the Third Party Parcels and Thirty Thousand Fifty -One Dollars ($30,051.00) in connection with environmental investigation of the Site. Said funds, together with all other funds that may be advanced by Developer for environmental assessment of the Site (Section 211 [2]) and/or demolition of all structures and clearance of all improvements from the Site, if applicable (Section 307), shall constitute a loan from Developer to Agency (the "Developer Loan"). The Developer Loan is currently evidenced by a promissory note, and is currently secured by a first deed; of trust encumbering the interest of the Agency in the Site (exclusive of the Third Party Parcels). The Agency and the Developer shall promptly execute, acknowledge, and record such additional documentation as may be necessary to evidence and/or secure any additional advance Developer may elect to or be obligated to make with respect to the Developer Loan under the terms of this Agreement. The Developer Loan shall be immediately payable by the Agency to the Developer upon the termination of this Agreement for any reason, other than the Developer's uncured material default. In the event that this Agreement is terminated, and the Developer is in material default of this Agreement at that time, and such default has already continued beyond the cure period provided by Section 501 hereof, then, notwithstanding such termination, the Developer Loan shall not be repayable until the Agency conveys all or a portion of the Site, or an interest therein, to a new developer for purposes of redevelopment; provided (i) that the Agency shall use its best efforts to locate a successor developer as quickly as possible, and (ii) the Developer Loan shall, in any event, be due and payable in full one (1) year after the Agency's notice to Developer of the termination of this Agreement. If such obligation is not repaid when due, it shall thereafter bear interest at a rate equal to twelve percent.(12%) per annum or the highest rate permitted by law, whichever is less (the "Agreed Interest Rate"). Following the date of this Agreement, Developer shall not be required to make any further advance to the Agency with respect to acquisition of the Third Party Parcels. The outstanding balance of the Developer Loan as of the date of this Agreement is One Million Nine Hundred Fifty -Two Thousand Fifty -One Dollars ($1,952,051.00). As set forth in Section. 201[3] below, all amounts comprised within the Developer Loan as of the Closing shall be deducted from the purchase price payable to the Agency. Developer acknowledges that it is not entitled to any further deduction or offset to the purchase price on the basis of other Project costs incurred prior to the date of this Agreement. 3. Provided that the Developer is not then in default of this Agreement, and in accordance with and subject to all of the terms, covenants and conditions of this Agreement, Agency agrees, at or before the time established in the Schedule of Performance (Attachment No. 6), to sell to the Developer, and the Developer agrees to purchase from the Agency, the Site. The purchase price for the Site shall be Two Million One Hundred Fifty -Nine Thousand Dollars ($2,159,000.00), less (a) One Million Nine Hundred Fifty -Two Thousand and Fifty -One Dollars ($1,952,051.00), representing the amount of funds advanced by Developer in connection with acquisition of the 'Third Party Parcels and environmental investigation of the Site to date, and (b) all costs hereafter incurred by Developer pursuant to Section 211 in connection with environmental investigation (but not remediation) of the Site, (c) the amount of funds advanced or incurred by Developer in connection with demolition of all improvements on and clearance of all improvements from the ;° }Y.i. t: -,: suXi-riE 1359.05 001063-0001 11/14/96 8 LAW UrrMti iv '(�qu loo9171437550 F003 to Section 307 (including the costs of asbestos removal inc4ntd in connection with the demolition) - and Pat Deve:loWs election, the Developer M-posit Oogctlicr with all interest thereon), (the net amount olkaincd following such reduction is herein referred to as the "Purchase Price"). The Purchase Price will be paid by Developer to Agency in cash at close of Escrow (as hereinafter defined). 4. In addition to the consideration set forth above, the Developer shall pay all of those costs, charges, fees and expmses hereafies expressly provided to be paid by Developer ,pursuant to this Agreement and shall, at its cost, provide all of the Improvements required by this Agreement to be provided by the Developer at its cost. B. [§ 202] Farrow. 1. The Agency and the Developer have opened an escrow with Orange Coast ThIc Company (the "Escrow Agent"). ne escrow described in this Section 202 shall be referred to as the "Escrow," acd the conveyance of title to the Site provided for in this Section 202 shall be referred to as the "Conveyance." The "Close of Escrow" shall refer to the Conveyance and shall occur concurrently with the effwtuation of that Conveyance. This Agreement constitutes thc}oint basic escrow instructions of the Agency and the Developer for the Conveyance, and a duplicate original of this Agreement steal! be delivered to the Escrow Agent upon the opening of the Escrow. The Agency and the Developer shall provide such additional escrow instructions as shall be necessary for and consistent with this Agreement. The Escrow Agent is hereby ermpowered to act tinder this Agreement, and the Es=w Agent, upon indicating within five (5) days after the opening of the Escrow its acceptance of the provisions of this Section 202, in writing, delivered to the Agency and the Developer, shall carry out its duties as Escrow Agent hereunder. 2. Upon delivery of the Grant Dced (as hereafter defined) to the Escrow Agent by the Agency pwriW to Smtkm 204 of this Agroemmt. the Escrow Agent shall record such deed when title can be vested in the Developer in accordance with the terms and provisions of this Agreement. The Grant peed shall cover the entire Site. Escrow Agent shall promptly cause the roconWon ofsuch Groat Deed and its delivery to the Developer. and, in connocti m dyer nth, shall allocate all charges and prorations in accordance with the instructions for this Escrow applicable to the Coaveya = The Devetopeat shall accept conveyance of tide as provided in Section 201. The Escrow Agent shall pay any applicable transfer tax. Any insurance policies covering the Site are not to be transfmv i- 3. The Developer stamp pay into the Escrow the following fees, charges and costs promptly after the Escro•+r Agent has notified the Developer of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for Close of Ewrvw: a. One-half (1/2) of the Escrow fee; 1'159.06 401"s-0001 Ulls/96 9 b. That portion of the premium for the title insurance policy to be paid by the Developer as set forth in Section 208 of this Agreement; C. The Purchase Price in cash; d. Any applicable docurr:entary transfer tax and/or stamps; and C. Any other costs customarily allocated to the buyer of real property in the county of Orange. 4. The Agency shall pay into Escrow the following fees, charges and costs promptly after the Escrow Agent has notified the Agency of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for Close of Escrow: a. One-half (1/2) of the Escrow fee; b. Cost of drawing the deed; C. Recording fees; d. Notary fees; e. That portion o'fthe premium for the title insurance policy to be paid by the Agency as set forth in Section 209 of this Agreement; f. Ad valorem taxes, if any, upon the Site for any time prior to transfer of title; and g. Any other costs customarily allocated to the seller of real property in the County of Orange. S. The Agency shall timely and properly execute, acknowledge and deliver the Grant Deed as necessary to convey the entire Site in the manner contemplated in Section 201 and Section 202[2] of this Agreement. The deed shall be substantially in the form of the "Grant Deed" which is attached to this Agreement as Attachment No. 7 (and is incorporated herein). 6. The Escrow Agent is authorized to: a. Pay and charge the Agency and Developer, respectively, for any fees, charges and costs payable under this Section 202 in accordance with the terms hereof. Before such payments or charges are made, the Escrow Agency shall notify the Agency and the Developer of the fees, charges and costs necessary to clear title and close the Escrow. 1359.05 001063-0001 11/14/96 10 b. Disburse funds and deliver the Grant Deed and other documents to the parties entitled thereto when the conditions of this Escrow have been fulfilled by the Agency and the Developer. Funds deposited as part of the Purchase Price shall not be disbursed by the Escrow Agent unless and until tl~e Escrow Agent has recorded the Grant Deed (Attachment No. 7) contemplated by this Agreement and has delivered to the Developer and (if requested by the Agency) the Agency, respectively, a title insurance policy insuring title to the entire Site and conforming to the requirements of Sections 205 and 208 of this Agreement. C. Record any instruments delivered through this Escrow, if necessary or proper, to vest title in the Developer in accordance with the terms and provisions of this Agreement. All funds received in this Escrow shall be deposited by the Escrow Agent, with other escrow funds of the Escrow Agent in an interest earning general escrow account or accounts with any state or national bank doing business in the State cf California. Such funds may be transferred to any other interest earning general escrow account or accounts. All disbursements shall be made by check of the Escrow Agent. All adjustments are to be made on the basis of a thirty.(30) day month. If this Escrow is not in condition to close on or before the time for conveyance established in Section 206 of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, demand from the Escrow Agent the return of its money, papers or documents deposited with the Escrow Agent. No demand for return shall be recognized until ten (10) days after the. Escrow Agent shall have mailed copies of such demand to the other party or parties at the address of its or their principal place or places of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party within the ten (10) day period, in which event the Escrow Agent is authorized to hold all money, papers and documents with respect to the Site until instructed by a mutual agreement of the parties or by a court of competent jurisdiction. If no objection is raised within such ten (10) day period, Escrow shall return all money, papers and documents to the party demanding their return. If, notwithstanding the failure of Escrow to close within the time provided in the Schedule of Performance, no demand is made on Escrow for the return of money, papers or documents, the Escrow shall be closed as soon as possible. Any amendment to these escrow instructions shall be in writing and signed by both the Agency and the Developer. At the time of any amendment, the parties shall secure the agreement of the Escrow Agent to carry out its duties as Escrow Agent under such amendment. All communications from the Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner established in Section 601 of this Agreement for notices, demands and communications between the Agency and the Developer. 2359.05 001063-0001 21/14/96 11 The liability of the Escrow Agent in the capacity as escrow holder with respect to the Conveyance is limited to performance of the obligations imposed upon it under Sections 202 through 211, inclusive, of this Agreement. C. [§ 203] Conveyance of Title and Deliveryof Possession. Subject to any extensions of time mutually agreed upon in writing between the Agency and the Developer,. the Conveyance shall be completed on or prior to the date specified therefor in the Schedule of Performance (Attachment No. 6). The Schedule of Performance (Attachment No. 6) is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Agency. The Agency and the Developer agree to perform all acts necessary to the conveyance of title in sufficient time for title to be conveyed in accordance with the foregoing provisions. It shall be a condition precedent to Developees obligations under this Agreement that the City shall have caused the vacation of the Alley Parcel prior to the Conveyance, and that, concurrent with such Conveyance, record title to the Alley Parcel will be vested in Developer free and clear of all liens, encumbrances, easements, rights, rights of way, claims or other limitations thereon, except for any exceptions to title approved by Developer pursuant to Section 205. Possession shall be delivered to the Developer not later than the conveyance of title, except that limited access shall be permitted before conveyance of title as provided in Section 211 of this Agreement. Provided that all conditions set forth in this Agreement with respect to the Conveyance have been satisfied, the Developer shall accept title on or before the date established in the Schedule of Performance (Attachment No. 6) for the Conveyance. D. [§ 204] Form of Deed for the Gonvevance. The Agency shall convey to the Developer title to the Site, excepting the mineral rights thereto, in the condition provided in Section 205 of this Agreement by a grant deed substantially in the form of the Grant Deed set forth in Attachment No. 7. E. [§ 205] Condition, of Title. The Agency shall convey to the Developer fee simple merchantable title to the Site, excepting the mineral rights thereto (but without reservation of any right of surface entry), and said title shall be free and clear of all recorded er unrecorded liens, encumbrances, covenants, assessments, easements, leases, taxes, and other matters affecting title, except for covenants and easements of record which the Developer approves in writing pursuant to the provisions of this Section 205, the Redevelopment Plan, and the provisions contained in the Grant Deed (Attachment No. 7). The condition of title shall be compatible with and not preclude development of the Improvements. 1359.05 001063-0001 11/14/96 12 The Developer has, prior to the execution of this Agreement, been provided with a preliminary title report (the "Preliminary Title Report'), together with copies of all documents .reported as exceptions in the Preliminary Title Report (collectively the "Title Documents") for the Site, dated as of August 5, 1991, Order No. 168013-5. A'copy of the Preliminary Title Report is attached hereto as Attachment No. 10. Developer has approved exceptions 1, 2 and 3 shown in the Preliminary Title Report, subject to receipt of an endorsement from Title Company insuring that there is no right of surface entry on the Property with respect to any of those items. All other exceptions, including, without limitation, all mortgages, deeds of trust or other like monetary encumbrances shall be deemed disapproved and Developer shall not be required to accept the Site subject to any such exceptions or liens. Agency shall correct or remove such matters identified in the Disapproval Notice not later than the Conveyance of the Site. The Agency will reserve and except from the Conveyance all interests in oil, gas, hydrocarbon substances and minerals of every kind and character lying more than 500 feet below the surface, together with the right to drill into, through, and to use and occupy all parts of the Site lying more than 500 feet belovr the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said site or other lands, but without, however, any right to use either the surface of the Site or any portion thereof within 500 feet of the surface for any purpose or purposes whatsoever. F.. [§ 2061 Time fQr and Place of Delivery o fDeed. Subject to any mutually agreed upon extension of time, the Agency shall deposit the Grant Deed (Attachment No. 7) with the Escrow Agmt on or before the date established for the Conveyance pursuant to the Schedule of Performance (Attachment No. 6). G. [§ 207] Recordation of Documents: isbuu ement-of Funds. The Escrow Agent shall file the Grant Deed for recordation among the land records in the Office of the County Recorder for Orange County, and shall deliver the balance of the Purchase Price (concurrent with the Conveyance) to the parry entitled thereto after delivery to the Developer of a title insurance policy insuring title in conformity with Section 205 of this Agreement. H. [§ 2091 Title Insurance. Concurrently with recordation of the Grant Deed (Attachment No. 7) conveying title to the Site, the Title Company shall provide and deliver to Developer a title insurance policy issued by the Title Company insuring that the Title to the entire Site is vested in Developer in the condition required by Section 205 of this Agreement. The Title Company shall provide the Agency with copies of the title insurance policy and the title insurance policy shall be for the amount of Two Million One Hundred Fifty -Nine Thousand Dollars ($2,159,000.00). The Agency shall bear a share 1359.05 001063-0001 11/14/96 13 of the cost of the title insurance policy equal to the cost of a standard CLTA policy with coverage in the amount specified above. All additional costs incurred for or related to such title insurance shall be borne solely by the Developer. The Developer may, at its option and at its cost, obtain coverage in excess of the amount specified above, secure any endorsements to its CLTA form of policy, or secure an ALTA form of policy, rather than the CLTA policy. 1. [§ 209] faxes and Assessment,& : Ad valorem taxes and assessments, if any, on the Site levied, assessed or imposed for any period prior to the Conveyance shall be borne by the Agency, and any of such taxes and assessments imposed after the Conveyance of the Site shall be borne by the Developer and its successors and assigns. After the Conveyance of the Site to Developer, Developer shall pay when due all real estate taxes and assessments on the Site so long as Developer retains an interest therein. J. [§ 210] Occupants of the Site. Concurrent with the Conveyance, possession of the Site shall be delivered to the Developer with no occupants and free of any rights of possession by others. K. [§ 2111 Condition of the Site. 1. i closure. The Agency represents that, to the best of its actual knowledge, two gasoline service stations formerly existed on the Site, which contained underground gasoline storage tanks, which may have contaminated the soil or groundwater on or under the Site with petroleum or other Hazardous Substances (as defined below). GeoRemediation Inc. ("Environmental Consultant') has conducted an environmental assessment of the Site. Environmental Consultant set forth its findings in a work plan, dated January 12, 1996, and attached hereto as Attachment No. 8 and incorporated herein, which contains the recommended remediation measures for the Site. 2, Cleanup. Subject to the "Remediation Cost Cap" (defined below), Agency hereby agrees to fund all rernediation activities (the "Remediation"), including the installation of monitoring equipment and removal of all asbestos from the Site in connection with demolition and clearance of the Site pursuant to Section 307, necessary to correct or remove the environmental harms or hazards noted in the above investigation (Attachment No.- 8). The Developer and the Agency have accepted the recommendation of the Environmental Consultant (Attachment No. 8) as establishing the scope and description of the Remediation work to be performed on the Site and the parameters and conditions of such Remediation work. Such Remediation work is underway as of the date of this Agreement. The Environmental Consultant is presently supervising the Remediation work performed by the chosen contractor in order to ensure that such Remediation work is diligently pursued to completion in compliance with all applicable laws, including without limitation, those statutes described below as 1359.05 001063-0001 21/14/96 14 the Applicable Laws, and the Remediation plan approved by the parties. The Agency agrees to consult with the Developer and keep the Developer fully informed throughout the Remediation process, and agrees to allow the Developer access to the Site for purposes of inspecting any Remediation work being performed thereon. The Developer shall be notified of, and allowed to attend and participate in, all discussions, hearings, proceedings or meetings related to the Remediation work. The Agency further agrees to consult with the Developer with respect to all Remediation work, to provide the Developer with copies of all correspondence, studies, tests and other documentation relating to the Remediation work, and to reasonably consider any recommendations or requests presented by the Developer with respect to such Remediation work. The Agency shall provide the Developer, upon the Developer's request from time to time, with an accounting of remediation costs incurred to date ("Remediation Costs'). Prior to undertaking any such Remediation work, the Agency shall obtain all required governmental approvals pursuant to California Health and Safety Code Section 33420.5 (to the extent applicable) and any other applicable laws in connection with the performance of the Remediation. If the projected costs of Remediation to be incurred by the Agency with respect to the Site (including the projected cost of the asbestos removal to be incurred in connection ,A ith demolition and clearance pursuant to said Section 307, but exclusive of any other costs of demolition or removal pursuant to said Section) (the "Remediation Cost") at any time exceeds Two Hundred and Filly Thousand Dollars (5250,000.00) (the "Remediation Cost Cap"), either party may terminate this Agreement, within thirty (30) days after notice of such projected cost, by the procedure set forth in Sections 511 and 512 herein; provided, however, that if one of the parties, at its option, agrees to pay the excess of the Remediation Costs described in this Paragraph 3 over Two Hundred and Fifty Thousand Dollars ($250,000.00), the other party may not terminate this Agreement. Such payment shall not constitute a waiver of any other right of the paying party or of any responsibility or liability of the other party under this paragraph. Notwithstanding anything else in this Agreement which is or appears to be to the contrary, unless the Developer, in its sole discretion, elects otherwise, all work described in this paragraph shall be completed and all required approvals obtained prior to the Conveyance of the Site to'the Developer. If necessitated by the foregoing sentence, the date set forth in the Schedule of Performance (Attachment No. 6) for Conveyance of the Site shall be extended as necessary to complete such Remediation and secure such approvals; provided that such extension shall not exceed one hundred eighty (180) days. If the Agency is unable to complete such Remediation and obtain all necessary approvals by such extended deadline, then the Developer, at its sole option, may terminate this Agreement or extend the deadline for the Conveyance of the Site to such date(s) as Developer deems appropriate. Agency further agrees to indemnify, defend and hold Developer and all members, partners, employees, contractors, agents and representative of Developer (collectively, "Representatives") harmless from all losses, liabilities, costs, expenses, damages, claims and causes of action, including attorneys` fees and court costs, (collectively, "Liabilities") arising from or related to Developer's actions on behalf of Agency pursuant to this Section. 3. LiMited Wangnties Aftel Remedistion; Obligatign toQ2ntritute. U p o n completion of any cleanup required pursuant to Paragraph 2 above, the delivery of the Site to the 1359.05 001063-0001 12/14/96 15 Developer shall be in an "as -is" condition, with no warranty expressed or implied by the Agency as to the presence of Hazardous Substances on the Site, except as expressly provided below. Notwithstanding anything above to the contrary, the Agency shall remain responsible for and shall indemnify, defend and hold the Developer and its Representatives harmless from all costs, expenses, loss, damage, cause of action or liability ("Liabilities") arising from or related to any Remediation work performed by or on behalf of the Agency (except work performed by the Developer) on the Site pursuant to Section 21112]. In addition, Agency agrees to indemnify, defend and bold Developer and its Representatives harmless from all Liabilities arising from or related to the presence of any Hazardous Substances on the Site, regardless of when discovered, which were Iocated on the Site at the time of the Conveyance; provided, that (i) the Agency's total liability under this indemnity shall not exceed Two Hundred and Fifty Thousand Dollars ($250,000.00), and (ii) except as to any ongoing remediation systems in place as of the issuance of a Certificate of Completion for the entire Site (which shall continue to be funded by the Agency up to the amount of the Two Hundred Fifty Thousand Dollars ($250,000.00) Remediation Cost Cap), this indemnity shall expire upon issuance of a Certificate of Completion for all of the Improvements to be constructed by Developer. Except as provided in the preceding two sentences and Section 211[2], the Developer shall be responsible for remediation of the presence of Hazardous Substances in, on or under the Site, including contaminated soils or ground water, first discovered after the date of the Conveyance, and, except as provided above, if any Hazardous Substance is discovered on the Site subsequent to the Conveyance, the Developer shall be responsible for its removal, management, or any other acts required by any Applicable Law, court or government agency. 4. Developer Infinity, , The Developer, including any and all of its successors in interest (other than the holder of any encumbrance permitted pursuant to the terms of this Agreement), agrees to and shall indemnify, defend, and hold the Agency and the City and their respective officers, employees, representatives and a¢ents harmless from and against all expenses (including, without limitation, reasonable attorneys' fees and disbursements), losses, or liabilities suffered by the Agency or the City by reason of governmental action or third party claims arising out of any Hazardous Substances brought upon the Site by the Developer in connection with the construction of the Improvements. Upon vesting of title to the Site in the Developer, the Developer, except as otherwise expressly provided in this Agreement, shall assume all responsibility for subsurface zone conditions and soils conditions of the Site, and for any rehabilitation necessary for the construction of the I nprovements; and, except as otherwise expressly provided in this Agreement, the Agency makes no other representations or warranties concerning the Site, its suitability for the use intended by the Developer, or the surface or subsurface conditions of the Site. Except as otherwise expressly provided in this Agreement, if the soil conditions of the Site are not in all respects entirely suitable for the use or uses to which the Site will be put, then it is the sole responsibility and obligation of the Developer to take such action as may be necessary to place the Site in condition suitable for the development of the Site. Nothing in this Section 211 is intended to waive any claim or right the Developer may have against any person or entity, other than the Agency or the City, relating to the physical condition of the Site. 13s9.05 001061-0001 11/14/96 16 5. Developer Covenants. The Developer agrees to comply with Applicable Laws in all activities using or concerning Hazardous Substances on the Site. The Developer agrees to immediately notify the Agency of the Developefs discovery following the Conveyance of any Hazardous Substances on the Site. 6. Developer Release. Upon vesting of title to the Site in the Developer, the Developer releases, waives and discharges the Agency and the City and their respective officers, employees, representatives and agents from all present and future claims, demands, suits, legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, present and future, arising out of or in any way connected with the Agency's or the City's ownership of the Site (including, without limitation, ownership of the Site or any portion thereof for the purposes of CERCLA and any other Applicable Law, as those terms are defined in Paragraph 9 below), any condition of environmental contamination on the Site, or the existence of Hazardous Substances in any state on the Site; provided, such environmental contamination of Hazardous Substances were not brought onto the Site by the Agency or City or any person or entity acting on their behalf or at their direction. The Developer acknowledges that it is aware of and familiar with Section 1542 of the California Civil Code which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of,executing the release which if known by him must have materially affected his settlement with the debtor." The Developer hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code. Notwithstanding anything in this Section which is or appears to be to the contrary, nothing in this Section shall be construed or understood to limit or waive the obligation of the Agency to fund Remediation of the Site up to the Remediation Cost Cap or to otherwise release the Agency from any express contractual obligations or liabilities imposed upon the Agency pursuant to the terms of this Agreement. 7. Definitions. The term "Hazardous Substance" or "Hazardous Substances" shall mean any substance which is listed as "hazardous" or "toxic" in the statutes comprising (or regulations implementing) the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601, e• Lgq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, e_ t sea., ("RCRA"), and California Health and Safety Code Sections 25100, e_ t 5en., 25300, et s,A., or 25280, rt seq. or which has been, is now, or is later determined by any federal, state or local agency or court with jurisdiction over the Site to be a hazardous or toxic substance regulated under Applicable Law. The term "Hazardous Substance" or "Hazardous 1359.05 001063-0001 11/14/96 17 Substances" shall also include, without limitation, the products of any manufacturing activities on the subject property, petroleum wastes, petroleum by-products, asbestos containing materials, and source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended (42 U.S.C. 301 1, st seq., as amended). The term "Applicable Law" shall include, but- shall not be limited to, CERCLA, RCRA, the Federal Water Pollution Control Act, 33 U.S.C. 1251, gt sea., the Clean Air Act, 42 U.S.C. 7401, ct Le4., California Health and Safety Code Sections 25100, It seo., 25300, gX ag., or 25280, S=., and the regulations thereunder, and any other local, state and/or federal laws or regulations that are applicable to the Site and that govern (i) the existence, cleanup and/or remedy of contamination on property; (ii) the protection of the environment from spilled, deposited or otherwise emplaced contamination; (iii) the control of Hazardous Substances; or (iv) the use, generation, transport, treatment, removal or recovery of Hazardous Substances, including building materials. L. [§ 212] Frelimina1y Work. Prior to the Conveyance of the Site, representatives of the Developer shall have the right of access to all portions of the Site for which the Agency holds title or over which it has a right of possession or access, at all reasonable times for the purpose of obtaining data and maldng surveys and tests necessary to cwT3, out this Agreement, including the investigation of the environmental condition of the Site pursuant to Section 211 hereof and the investigation of all soil, subsoil and geologic conditions on the Site. Any preliminary work undertaken on the Site by the Developer prior to Conveyance of the Site shall be done only after written notice to the Agency Executive Director delivered not less than forty-eight (48) hours prior to the Developer's entry on the Site, and, except as otherwise expressly provided in this Agreement, at the sole expense of the Developer. Except as provided in Section 211, the Developer shall save and protect the Agency and the City against any claims resulting from all preliminary work on, access to or use of the Site undertaken pursuant to this Section 212, and, upon termination of this Agreement and written request of the Agency, shall restore the Site to its original condition with respect to any alterations on the Site caused by such investigations. Copies of data, surveys and tests obtained or made by the Developer on the Site pursuant to this Section 212 shall be filed with the Agency within fifteen (15) days after receipt by the Developer. Any preliminary work by the Developer shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. If this Agreement is terminated for any reason, the Agency shall reimburse the Developer for the costs of any such studies or tests which are not otherwise reimbursed under this Agreement and which the Agency elects, within thirty (30) days after such termination, to retain. If the Agency elects not to retain any such studies, it shall promptly surrender to the Developer the original copy of such study and all copies, reproductions, or copies thereof, and, upon such timely surrender, shall have no reimbursement obligation to the Developer for such studies. If the Agency retains any tests or studies, it shall be without representation or warranty of any kind from the Developer. In no event 1359.0s 001061-0001 11/14/96 3.8 shall the Developer be required to deliver its internal marketing studies and financial projections under this Section 212. M. [§ 213) Conditions PMedent to the Conyryance. Prior to and as conditions precedent to the Conveyance of the Site, the Developer and Agency shall complete each of the following by the respective times established therefor in the Schedule of Performance (Attachment No. 6): (Attachment No. 7); (1) The Agency and the Developer shall execute the Grant Deed (2) the Developer shall pay into Escrow the Purchase Price; (3) the Developer stall not be in material default of its obligations under this Agreement (provided that this condition shall only be for the benefit of, and may be waived by, the Agency); (4) the Agency shall not be in material default of its obligations under this Agreement (provided that this condition shall only be for the benefit of, and may be waived by, the Developer); (5) the Developer shall have obtained all entitlements and land use approvals necessary t6 develop the Site in the manner contemplated by this Agreement (which shall be final and not subject to further appeal) (hereinaftr: referred to as the "Land Use Entitlements") and the City shall be prepared, immediately following the Conveyance and subject to payment of any applicable fees, to issue building permits for all of the improvements to be constructed on the Site; (6) the Agency, by its Executive Director, shall have approved the Developees'evidence of financing for the Site in accordance with Section 215; (7) the Developer shall have provided to the Agency Executive Director insurance certificates conforming to Section 309 of this Agreement; (8) the Site investigation shall have been completed and the Site remediation shall have been completed as provided in Sections 21I [2] and 211 [31 (unless Developer elects to complete Site remediation following the Conveyance); (9) Site clearance and demolition shall have been completed (unless the Developer elects to complete such clearance and demolition following the Conveyance), as provided in Section 307; 1359.05 001063-0001 11/14/96 19 (10) recordation of the final Subdivision Map and vacation of the Alley Parcel by the City shall have been accomplished; (11) the construction loan, if any, to be secured by the Developer in connection with development of the Site shall be in a position to fund promptly following the Conveyance; and (12). all other conditions to the Conveyance provided in this Agreement and the instructions to the Escrow shall have been satisfied (or waived by the parry for whose benefit the condition is provided). The foregoing items together cor stitute the "Conditions Precedent" to the Conveyance. The foregoing provisions shall not be construed to relieve another party of its responsibility for performance of its obligations under this Agreement, nor to limit the non - defaulting parry's remedies foY the defaulting parry's breach of those obligations. N. [§ 214) General Plan Designation and Zoning of the Site; Subdivision Map Approval. The City general plan designation and zoning of the Site subject to zoning variances granted by the City Planning Commission at the time of the execution of this Agreement, are such as to permit development and construction of the Improvements thereon in accordance with the provisions of this Agreement, and the use, operation and maintenance of such Improvements. The Agency shall use its best efforts to assist the Developer to obtain any additional entitlements or land use approvals necessary to develop the Improvements contemplated by this Agreement. The Developer shall be responsible to make appropriate application to the City to satisfy all provisions of the California Subdivision Map Act (Government Code Section 66410, _t �qe .), to obtain any required conditional use permit, and to satisfy all other local enactments pursuant to the Subdivision Map Act which are applicable with respect to the assembly and development of the Site. The Agency shall assist and cooperate with the Developer in accomplishing these matters. O. [§ 2151 Submission of Evidence of Financial Commitments and Loan Closing. As required in this Agreement and within the time established therefor in the Schedule of Performance (Attachment No. 6), the Developer shall submit to the Agency Executive Director evidence that the Developer has obtained the required financing necessary to undertake the development of the Site in. accordance with this Agreement. The Developer shall close said financing concurrently with the Close of Escrow for the Site. Within fifteen (15) days after submission, the Agency Executive Director shall approve or disapprove such evidence of financing. Approval shall not be unreasonably withheld or conditioned. If the Agency Executive Director shall disapprove any such evidence of financing, the Agency Executive Director shall do so by written 1359.05 001063-0001 11/14/96 20 notice to the Developer stating the reasons for such disapproval and, if such disapproval is authorized by this Agreement, the Developer shall promptly attempt to obtain and submit to the Agency Executive Director new evidence of financing. The Agency Executive Director shall approve or disapprove such new evidence of financing in the same manner and within the same time established in this Section 215 for the approval or disapproval of the evidence of financing as initially submitted to the Agency Executive Director. Such evidence of financing shall include the following: 1. A copy of a commitment obtained by the Developer for the mortgage loan or loans for financing to fund the construction of the Project. The commitment for financing shall be in such form and content acceptable to the Agency as reasonably evidences a legally binding, firm and enforceable commitment, which may be subject to the construction lender's customary and normal conditions and tenns and to preparation of final loan documentation; provided, however, this formal commitment shall not be required if the Developer's construction lender does not customarily issue such commitments, and, in that event, the Agency agrees to accept, in lieu of the commitment requirement, evidence of the willingness of the Developer's proposed lender to provide the necessary financing, even if such evidence is not IegalIy binding or is of an informal nature; and ' 2. A copy of the contract between the Developer and one or more general contractors for the construction of the applicable Improvements, certified by the Developer to be a true and correct copy thereof, provided, this provision shall not apply if the Developer elects to act as its own general contractor for the Improvements. The Developer has already provided to the Executive Director of the Agency a financial statement and/or other documentation satisfactory to the Agency as evidence of other sources of capital sufficient to demonstrate that the Developer has adequate funds to cover the difference, if any, between construction costs and the financing authorized by any contemplated mortgage loans. ' P. [§ 216] Relocation. The Agency has performed or will perform all relocation obligations, at its sole cost, required by law as a result of the execution of this Agreement and the constriction of the Improvements. • ` III. [§ 300] DEVELOPMENT OF THE SITE. A. [§ 301] Development of the -Site. 1159.05 001063-0001 21/14/96 2 1 Uy: s4rfi1 : kUM BW - LAw oFF ICE S 30 1511063*1„0171437550 P004 notice to the Developer stating the reasons for such disapproval and, if such disapproval is authorized by this Agreement, the Developer shall promptly attempt to obtain and submit to the Agency Executive Director new evidence of rmancing. The Agency Executive Director shall approve or disapprove such new evidence of ffna=i22g in the same manner and within the same time established in this Section 215 for the approval or disapproval of the evidence of f=cing as initially submitted to the Agency Executive Director. Such evidence of financing shall include the following: 1. A copy ofa, commitment obtained by the Developer for the mortgage loan or loans for fimneing to fund the construction of the Project. The Commitment for financing shall be in such form and content acceptable to the Agency as reasonably evidences a legally binding, film and enforceable commitment, which may be subjo;t to the construction lendees customary and normal conditions and terms and to preparation of final loan documentation; provided, however, this formal commitment shal l not be required if the Develope?s constructiou I=dcr does not customarily issue such commitments, and, in that event, the Agency agrees to accept, in lieu of the commitment requirement, evidence ofthe willingness of the Develope?k Proposed lender to provide the ummsary financing, even if such evidence is not legally binding or is of an informal nature; and 2. A copy of the contract between the Developer and one or more general contractors for the construction of the applicable Improvements, certified by the Developer to he a tme and correct copy thereof, provided, this provision shall not apply if the Developer elects to act as its own general contractor for the Improvements. The Developer has already provided to the Executive Director of the Agency a financial statement and/or other documentation satisfactory to the Agency as evidence of other sources of capital sufficient to demonstrate that the Developer has adequate funds to cover the difference, if any, between construction costs arch die financing authorize by any cuntemplated mortgage loans. P. [§ 2161 Rrjgofion. The Agency has performed or will perform all relocation obligations, at its sole cost, required by law as a resent of the execution of this Agreement and the construction of the Improvements. Q. [§2171- Attached hereto and incorpomod herein. 3001 DEVELOPMENT OF THF. SITE. A. [§ 3011 DwlQrmmt 330.06 00200.0002 11/15/96 22 review of drawings, plans and related documents by the Agency Executive Director. The staff of the Agency and the Developer shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the Agency Executive Director can receive prompt and speedy consideration. Following approval of such plans by the Executive Director of the Agency, they shall be processed by the City in connection with the issuance of grading, demolition, building and other like permits, as applicable. The Agency shall assist the Developer in securing the prompt processing of such plans and permits by the City. Nothing in this Section shall be construed as preempting or waiving any applicable planning review, public works, design review or other like requirements of the City. 4. [§ 3051 Re3joy and Approval of Construction Drawings and Related ocuments. The Executive Director of the Agency shall have the right of architectural and planning review and approval of all plans and submissions submitted pursuant to Section 304, including any changes therein; provided, that the Agency Executive Director shall not unreasonably •withhold his approval of any such plans and submissions, and shall approve or disapprove such plans and submissions within the time set forth in the Schedule of Performance. The Agency Executive Director shall not withhold approval of any plans which are a logical evolution of any previously approved plans and site drawings, nor shall the Agency Executive Director require modifications to any proposed plans that would require such plans to conflict with any previously approved plans or site drawings. In the event of any inconsistency between any site plans or preliminary plans or construction drawings and any final plans approved by the Agency Executive Director, such final plans shall control. Subject to the above, during each stage of the processing for the Improvements, the Agency shall have the right to require reasonable additional information and shall advise the Developer if any submittal of plans or drawings is not complete or not in accordance with Agency procedures. If the Agency Executive Director reasonably determines that such a submittal to the Agency is not complete or not in accordance with such procedures, such tender shall not be deemed to constitute a submittal for purposes of satisfying the Schedule of Performance (Attachment No. b). If the Developer desires to make any substantial changes in the construction plans after their approval by the Agency Executive Director, the Developer shall submit the proposed change to the Agency Executive Director for his approval. If the construction plans, as modified by the proposed change, conform to the requirements of this Section and the Scope of Development (Attachment No. 3) the Agency Executive Director shall approve the proposed change and notify the Developer in writing within 30 days after submission to the Agency Executive Director. If any revisions to any plans approved by the Agency Executive Director are required by any governmental, 1359.05 001061-0001 11/24/96 23 public or quasi -public body, official, agency, department, bureau or entity having jurisdiction over the Site, then the Developer and the Agency Executive Director shall cooperate in efforts to obtain a waiver of such requirement or, in the absence thereof, shall revise the plans as necessary to meet such requirements. The Agency agrees, upon request from time to time by the Developer, to use its best efforts to cause the City to obtain an outside plan checker, at the Developer's expense, to expedite processing of Site approvals and permits. In addition, the Agency agrees, if requested by the Developer, to use its best efforts to cause the City to retain an independent engineer(s), at the Developer's expense, to expedite processing of the tentative map for the Site, and to retain an independent electrical inspectors) and any other component system inspectors) designated by the Developer, at the Developer's expense, to expedite inspections and approvals for the improvements to be constructed on the Site. If an outside plan cLecker(s), engineers) or inspectors) is (are) retained at the Developer's request, the Agency shall use its best efforts to cause the City to submit such persons for the Developer's reasonable prior approval, prior to selection of such outside plan checker(s), engineer(s) or inspectors) and to arrange for the bills for the services of such plan checker(s), engineer(s) or inspector(s) to be delivered directly to the Developer. The Developer shall be solely responsible for the payment of such bills. 5. [§ 3061 Cost of Development. Except as otherwise provided in this Agreement, all costs for planning, designing, and constructing the Improvements shall be borne exclusively by the Developer. Except as otherwise provided in this Agreement, the Developer shall also bear all costs related to discharging the duties of the Developer set forth in this Agreement. The Developer assumes the responsibility to construct and shall let contracts for or cause to be constructed all "Off -Site Public Improvements" which are required by City to be constructed in connection with fie Developees improvement of the Site. The Off -Site Public Improvements that the Developer is to construct or cause to be constructed are attached to the Scope of Development (Attachment No. 3). If any "Additional Off -Site Improvements" (as defined below) are validly required by the Agency or the City, the Developer shall, subject to the limitations below, be obligated to construct or cause the construction of such improvements and the Agency shall reimburse the Developer for all "Expenses" (as defined below) incurred in connection with planning, designing and constructing of such improvements. If the Agency or the City requires the Developer to construct any Additional Off -Site Improvements, the Developer shall promptly obtain an estimate of the cost of designing and constructing such improvements and shall deliver such estimate to the Agency. If the Agency still wishes to have the Developer proceed with the design and construction of such improvements, it shall, within thirty (30) days after receipt of such estimate, approve the scope of such work and the proposed costs thereof (together with a contingency for specified types and amounts of cost increases or overruns). If the Agency disapproves the proposed Additional Off -Site Improvements work within that period, then the Developer shall have no obligation to construct the applicable Additional Off -Site Improvements. The Agency shall pay to the Developer all Expenses 1359.05 001063-0001 11/14/96 24 incurred by the Developer in connection with the Additional Off -Site Improvements not later than thirty (30) days after the Developer's submission of (i) a signed demand for payment from the Developer certifying that the work for which payment is requested has been performed, and (ii) a certificate, opinion or other similar document from an architect or engineer acceptable to both the Developer and the Agency, in their reasonable discretion ("Approved Architect") (which certificate, opinion, advice or approval may rely upon the certificate, opinion, advice or approval of other licensed architects, engineers or government officials and may contain reasonable and customary assumptions or' qualifications) stating that the work for which payment is requested has been performed. If such Expenses are not paid by the Agency to the Developer when due, they shall thereafter bear interest at the Agreed Interest Rate from the date due until the date paid. "Additional Off -Site Improvements" shall mean all improvements or work located outside the legal lot line of the Site ("Boundary of the Site") as shown on the Subdivision Map, or within the area of the Alley Parcel which is to be vacated in connection with development of the Site, which are not expressly identified in the Scope of Development as included within the maximum required Off -Site Public Improvements, including, without limitation, all such street, sewer, water, storm drain, CATV, gas, electric, telephone and other utility improvements and/or relocations required outside the Boundary of the Site or in the Alley Parcel. Notwithstanding: anything herein which is or appears to be to the contrary, the "Additional Off -Site Improvements" shall,include any and all decorative paving or pavement required by the Agency or the City to be installed by &.e Developer outside the Boundary of the Site. The "Expenses" of constructing any Additional Off -Site Improvements shall mean all direct and indirect design, planning and construction costs, expenses or fees incurred in connection with any Additional Off -Site Improvements, including, without limitation, all engineering, legal, consultant, and architectural fees, all permit and bonding fees or costs, all points, fees and other financing costs, all interest charges and/or reserves, all insurance, management and inspection fees and costs, and the Developer's overhead costs, which shall be deemed equal to ten percent (10%) of a]I other costs and expenses incurred in connection with constructing the Additional Off -Site Improvements. The Agency shall not be responsible for reimbursing the Developer for any payments by the Developer to the Developer or any wholly -owned affiliate of the Developer which are in excess of the amount that would have been paid for such services in an arms length transaction between unrelated third parties acting under the same circumstances.. In no event shall the Agency withhold or delay issuance of any Certificate of Completion because of the Developer's failure or refusal to construct any Additional Off -Site Improvements. Subject to the terms of this Agreement, the Developer shall be responsible for all fees associated with development of the Improvements, including, without limitation, traffic, Iibrary, school facilities and other impact fees. The Agency shall use its best efforts to assist the Developer in its efforts to minimize the amount of such fees. 1159.OS CO1463-0001 11/14/96 25 6. [§ 3071 Demolition of Site. Pursuant to the Prior DDA, the Agency demolished all buildings existing on the Site. Promptly following execution of this Agreement, the Agency shall complete the clearance of all asphalt, structures, foundations, tanks, and other improvements. . Notwithstanding that all costs related to the demolition shall be ultimately borne by the Agency, the Developer may advance such costs on behalf of the Agency as such costs are incurred. All such advances and any other costs incurred by the Developer in connection with such clearance and demolition will be added to and became a part of the Developer Loan described in Section 201[2] above and shall be deducted from the gross purchase price in connection with the determination of the Purchase Price pursuant to Section 201 [3] above. 7. [§ 308] Construction Schedule. Subject to extension pursuant to Section 603, the Developer shall commence and complete the Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 6). S. [§ 309] IndemnibLBodilyInjuly and_Emye= Damage h5Vrance. Except as otherwise provided in this Agreement, the Developer shall defend, assume all responsibility for and hold the Agency and the City, and their respective officers, agents and employees, harmless from all claims or suits for, and damages to, property and injuries to persons, including accidental death (including attorneys fees and costs), which may be caused by any of the Developer's activities under this Agreement, whether such activities or performance thereof be by the Developer or anyone (other than the City or the Agency, or any of their agents, employees or representatives) directly or indirectly employed or contracted with by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement. Prior to commencement of construction on the Site, the Developer shall take out and maintain during the life of this Agreement, a comprehensive liability policy in the amount of Two Million Dollars ($2,000,000.00) combined single Iimit policy, including contractual liability, as shall protect the Developer, the City, and the Agency from claims for such damages. Insurance coverage furnished by the Developer pursuant to this Section 309 shall conform to this Section 309 and shall pertain to all activities on the Site and all work on any Off -Site Public Improvements or any Additional Off -Site Improvements. The Developer shall furnish the Agency a certificate of insurance from the insurer evidencing compliance with this Section 309 and providing that the insurer shall not cancel or modify the policy without thirty (30) days prior written notice to the Agency. The Developer shall give the Agency prompt and timely notice of any claim made or suit instituted with respect to the matters covered by such insurance. Coverage shall be primary and not contributing vv7th any policy 1359.05 001063-0001 21/14/96 2 6 or coverage maintained by or obtained by the Agency, and an appropriate endorsement, if available, shall so state. The policy shall contain a waiver of subrogation, if available. The Developer shall comply with all of the provisions of the Workers Compensation Insurance and Safety Actss of the State of California applicable to development of the Site, the applicable provisions of Divisions 4 and 5 of the California Labor Code, and all amendments thereto, and all similar State or Federal acts or laws which are applicable, and the Developer shall hold the Agency and the City harraless from any claims arising thereunder from the Developer's failure to so comply. The Developer shall furnish to the Agency a certificate of Workers Compensation insurance providing that the insurer shall not cancel or modify the policy without thirty (30) days prior written notice to the Agency. In the alternative, the Developer may show proof of a certificate of consent to self -insure issued by the Director of Industrial Relations according to California Labor Code Section 3800. 9. [§ 3101 City and Other Gove mental Agency Permits. Before commencement of construction or development of any buildings, structures or other works of improvement upon the Site by the Developer, the Developer shall secure or cause to be secured any and all permits which may be required by the City or any other governmental agency affected by such construction, development er work. Except as otherwise provided by this Agreement, such permits shall be secured at the Developer's own expense. Subject to the terms of this Agreement, it is understood that the Developer is obligated to pay all necessary fees and to timely submit to the City final drawings with final corrections to obtain building permits; the Agency will, without obligation to incur liability or expense therefor, use its best efforts to expedite issuance by the City of building and other required permits and certificates of occupancy for construction that meets the requirements of the Huntington Beach Municipal Code. Subject to the limitations of this Agreement, the Developer shall be required to comply with all conditions of approval of all zoning changes, general plan amendments, subdivision maps, conditional use permits or ariy other land use approvals and all costs of compliance shall be at the sole expense of the Developer. The Developer shall be required to comply with the requirements of the California Environmental Quality Act, California Public Resources Code Section 21000, et seq. ("CEQA"). If such compliance with CEQA results in the imposition of any conditions or mitigation measures not already contemplated by this Agreement, then, at the Developer's written election, this Agreement shall terminate and be of no further force or effect, and the Prior DDA shall be reinstated in full force and effect, the parties shall proceed with processing and development of the Improvements contemplated by the Prior DDA, as modified by subsequent City -approved entitlements or plans, as quickly as reasonably possible, and the Agency and the Developer shall be entitled to assert all rights and enforce all obligations arising from or contained in the Prior DDA. 10. [§ 3111 Rights of Access. For the purpose of assuring compliance with this Agreement, representatives of the Agency and the City shall have the right of access to the Site without charges or fees, at normal 13s9.05 001063-0001 11114/96 27 business hours during the period of construction on the Site for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in constructing the Improvements, so long as th-y comply with all safety rules and do not interfere with the work of the Developer, or its contractors, agents or representatives. Such representatives of the Agency or of the City shall be those who are so identified in writing by the Director of the Agency. The Agency shall indemnify, defend and hold the Developer, and its Representatives harmless' from any Liabilities arising out of the activities of the Agency and the City referred to in this Section 311. The Developer shall place and maintaki on the Site signs indicating the respective roles of the Developer and the Agency in the construction of the Improvements. The cost of the signs and their installation shall be borne solely by the Developer and shall comply with all applicable City sign codes. 11. [§ 312] Local, State and Federal Laws. The Developer shall perform under this Agreement and carry out its performance under this Agreement, including without limitation the construction of the Improvements, in conformity with all applicable federal and state laws and local ordinances, including all applicable federal and state labor standards, as to the Site, provided, however, the Developer and its contractors, successors, assigns, transferees, and Iessees are not waiving their rights to contest any such laws, rules or standards. 12. {§ 3131 Anti-Discrimination Pursuant to Sections 33435 and 33050 of the California Community Redevelopment Law, the Developer, for itself and its successors and assigns, agrees that in the construction of Improvements on the Site or other performance under this Agreement, the Developer will not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, ancestry, or national origin. B. [§ 314] Mortgage. Deed of Tnist. Sale and Lease -Back Financing; Rights of Holders. No Encumbrances = Mortgages. Deeds of i or • • • m Mortgages, deeds of trust and sales and leases -back are permitted before completion of the construction of the Improvements, but only for the purpose of securing loans of funds to be used for financing the acquisition of the Site, the construction and operation of Improvements on the Site, and any other purposes necessary and appropriate in connection with development under this Agreement. The Developer shall noti fy the Agency in advance of any mortgage, deed of trust or sale and lease -back financing, if the Developer proposes to enter into the same before issuance of a Certificate of Completion for the affected improvements. The term "mortgage" as used hereinafter 1359.05 001061-0001 11/14/96 28 shall include a deed of trust and sale and lease -back. Prior to issuance of a Certificate of Completion for the affected Improvements, the Developer shall not enter into any conveyance for financing (other than any financing approved in connection with the Agency's approval of the Developer's evidence of financing pursuant to Section 215), without the prior written approval of the Agency, which approval the Agency agrees to give if any such conveyance for financing is given to a responsible financial or lending institution or other financially responsible person or entity and is for the purposes stated above: �• • • 6• -• • • i 111 • It The holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this Agreement to construct or complete the Improvements or to guarantee such construction or completion; nor shall any covenant or any other provision in this Agreement or any grant deed for the Site be construed so to obligate such holder. Nothing in this Agreement shall be construed to permit or authorize any such holder to devote the Site to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. 3. (§ 317) notice of Default ,lo Monga^ ee or Deed of Trust Holders: i�ht�o lure. With respect to any mortgage or deed of trust granted by the Developer as provided herein, whenever the Agency shall deliver any, notice or demand to the Developer with respect to any breach or default by the Developer in completion of construction of the Improvements, or otherwise under this Agreement, the Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, within thirty (30) days after expiration of the cure period applicable to the Developer under this Agreement, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage; provided, that if the default cannot with diligence be remedied or cured, or the remedy or cure cannot be commenced, within such thirty (30) day period, such holder shall have such additional time as is reasonably necessary to remedy or cure such default by the Developer. If such default shall be a default which can only be remedied or cured by such holder upon obtaining possession, such holder shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall have the right to remedy or cure such default after obtaining possession within such time as is reasonably necessary to cure such default. Any such holder shall not be required to cure any default of the Developer which is incurable in order to exercise its rights under this Section 317. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Improvements (beyond the ext:nt necessary to conserve or protect the Improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement satisfactory to the Agency. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the Improvements to which the 13s9.GIs 001063-0001 11/14/96 29 lien or title of such holder relates, and submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of Section 322 of this Agreement, to a Certificate of Ccmpletion (as therein defined.). 4. [§ 318) Failure of Holder to CgmpleteJmprovements. • In any case where, thirty (30) days after the Developer's uncured default in completion of construction of the Improvements under this Agreement and the holder's receipt of the notice of said default by the Developer in completion of construction of Improvements under this Agreement, the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof has not exercised the option to commence curing such default, or, if it has exercised its right to cure such default, such holder is not proceeding diligently with construction, the Agency may purchase the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership of the Site or any part thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: (1) The unpaid mortgage or deed of trust debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (2) All expenses Kith respect to foreclosure; (3) The expenses, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Site or part thereof; (4) The costs of any improvements made by such holder, and (5) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt at the time incurred and such debt had continued in existence to the date of payment by the Agency; less (6) Any income derived by the lender from operations conducted on the Site following the foreclosure (the receipt of principal and interest payments in the ordinary course of the lender's business shall not constitute income from the purposes of this subsection (6)). 5. [§ 319) Right of the Agency to Cure-fortgaue or Deedgf Trust Default. 1759.05 001061-0001 11/14/96 30 In the event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the construction of the Improvements on the Site or any part thereof and if the holder of any mortgage or deed of trust has not exercised its option to construct those improvements, the Agency may cure the default. In such event, the Agency shall be entitled to reimbursement from the Developer of all proper costs and expenses associated with and attributable to the curing of the mortgage or deed of trust default or breach of this Agreement by the Developer and incurred by the Agency in curing such default; provided, however, that in exercising its rights under this sentence the Agency shall be required to act in a manner which will mitigate its damages in the event of such breach by the Developer. The Agency shall also be entitled to a lien upon the Site to the extent of such incurred costs and disbursements. Any such lien shall be subject to the prior construction financing mortgages or deeds of trust. C. [§ 320] Right he Agency to Satisfy Other Uens_on the,Site After Title Passes, After the Conveyance of title and prior to the issuance of a Certificate of Completion for the affected portion of the Site, and after the Developer has had written notice and has failed after a reasonable time, but in any event not less than thirty (30) days, to challenge, cure, adequately bond against, or satisfy any liens or encumbrances on the uncompleted portion of the Site which are not otherwise permitted under this Agreement, the Agency shall have the right but no obligation to satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall require the Developer to pay or make provisions for the payment of any tax, assessment, lien or charge so long as the Developer in good faith contests the validity or amount thereof, and so long as such delay in payment does not subject the applicable portion of the Site to forfeiture or sale, without the right to redeem. D. [§ 321] Additional Amendment. The Agency agrees not to unreasonably withhold approval of any modification or amendment to this Agreement as may be requested by the holder or prospective holder of any deed of trust or mortgage encumbering any portion of the Site, or any interest therein. The Agency acknowledges that such amendments may, from time to time, be necessary to induce a lender to loan funds in connection with the development or operation of the Site, and that different lenders may have specific requirements or requests relating to receipt of notice, opportunity to cure, and other similar matters pertaining to its security and its remedies upon a default by the Developer. Any such modification or amendment to this Agreement shall be prepared by the Developer at no cost to the Agency. E. [§ 322]ertificate,9f Comnle�ion. Promptly after the completion of all of the Improvements to be constructed on the Site (excluding any tenant improvements) in conformity with this Agreement (as determined by the Executive Director of the Agency), upon the written rcquest of the Developer, the Executive Director 1359.05 001063-0001 11/14/96 31 of the Agency shall furnish the Developer with a Certificate of Completion (in the form attached hereto as Attachment No. 9) for the Site. Such Certificate of Completion shall be a conclusive determination of satisfactory completion of the constn,.ction required by the Agreement upon the Site and the Certificate of Completion shall so state. After the recordation of such Certificate of Completion, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of such ownership, purchase, lease or acquisition), incur any obligation or liability under this Agreement, except that such party shall be bound by any then' effective covenants contained in the Grant Deed applicable to the Site or portion thereof acquired by such party. The Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder's Office for the County of Orange. If the Agency refuses or fails to furnish a Certificate of Completion as to the Site after written request from the Developer, the Agency shall, within thirty (30) days of the written request, provide the Developer with a written statement of the reasons the Agency refused or failed to famish the Certificate of Completion. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain the Certificate of Completion. If the reason for such refusal is confined to the failure to complete specific items of construction, landscaping, and/or other items, all of which shall not affect the ability of the Improvements to be safely inhabited, the Agency will issue its Certificate of Completion upon the posting of a bond or other security acceptable to the Agency by the Developer with the Agency in an amount representing the fair value of the work not yet completed. In no event shall the Agericy unreasonably withhold or delay the issuance of a Certificate of Completion. The Certificate of Completion (Attachment No. 9) is not a notice of completion as referred to in Section 3093 of the California Civil Code. The Agency also agrees not to unreasonably withhold a separate Certificate of Completion for any separate Lot within the Site with respect to which the Developer has completed all required Improvements (even though the improvement of the entire Site has not been completed); provided, that the Developer shall not then be in default with respect to construction of the remaining Improvements and the issuance of such partial Certificate of Completion shall not unreasonably interfere with the Agency's expectation of completion of all of the Improvements required to be constructed on the Site. Each such partial Certificate of Completion shall also be in the form of Attachment No. 9 and shall, with respect to the Lot affected by the partial Certificate of Completion, have the same purpose and effect as the Certificate of Completion for the entire Site has with respect to the entire Site. Issuance of the Certificate of Completion shall be an administrative act and is hereby authorized by action of the Executive Director without the necessity for separate approval by the Agency Board. 1359.05 001063-0001 1I/14/96 32 11_15_96 05.34Yk FRU L ' ��"� uf;14�ES Tti 7a�11163 1 1 i143t55U fG05 N. [§ 4001 USE OF THE SITE. A. [§ 401 ] Constna tc ia,, of Imnovernots. In accordance szth the terms of this Agreement, the Dcvveloper shad develop an and adjacent to the Site all on -site improvements and those Off -Site Public Improvements required by tiro City to be consttructed in connection with the on -site irnprovemcnts pursuant to the terms of this Agreement, including the Scope of Development (Attachment No. 3). H. [§ 4021 Affordable Housing. The Agency shall be responsible for satisfying outside of the Site all affordable housing nquire mts arising directly or indirc¢thy from or otherwise related to development of the Site or the constructioti of the Improvements thereon, regardless of whedxT such affordable housing requirements arise from state laws or regulations. Ciry ordinnaew, requir=cnts or conditions, or from any other source or cause. The Agency shall indemnify, defend and mold the Developer sad the Site harmless against any affordable housing requirements applicable to the Site or impmvrments, and in no event shalt the Developer be required to orate, food or assist in any way with the provision of affordable housing as a result of its development of the Site` AU residential urx % constrwLed on the Site may be Ieased or sold at unrestricted market levels by the Developer. C. (§ d43] The Developer chap construct a subtcxrancaa parking structure (the "Par king StruchW) on the Site, as dcscnW and set forth in the Scope of Development (Attachment No. 3). With respoet to the fast 262 parking gw-es required for the Site by the Land Use Ezntitiements, Developer shall satisfy that requirement at its sole cost and expense by constwing those spaces on the Site. If the Laud Use Entitlements require provision of more than 262 parlang spaces on the Site, Agency may, at its sole discretion, consider assting the Developer in satisfying any parking requirranent not met by Developer's construction of parking spaces on the Site through pscticipation in the In Lieu Fee Parking Frograin established by Agency Resolution No. 268, or successor resolutions, for no more thaw 40 additional spaces. a + r, M",FMI 0= The Developer shall develop approximamely forty-one thousand (41,000) square feet of commercial spa= as net forth in the Scope of Dcvtloprncut (Attachment No. 3) on the Site. IISIAc 491043-4401 1-111sfst 33 ere The Developer shall, from time to time, meet and consult with the Agency concerning development and implementation of a marketing plan for the Retail and Office space on the Site, and shall provide the Agency with copies of such documentation setting forth that plan as the Agency may reasonably request; provided, all such documentation shall be held by the Agency in confidence and the Developer -shall not be required to provide any confidential financial information in connection therewith. E. , [§ 405] Uses in Accordance A,jth RedevelopmentElan: Nondiscrimination. The Developer covenants and agrees for itself, and its successors, its assigns, and every successor in interest to the Site or any part thereof that, during the term of the Redevelopment Plan, the Developer and such successor and assigns shall not devote the Site to any uses other than those permitted by the Redevelopment Plan as of the date of this Agreement, the Grant Deed (Attachment No. 7); and this Agreement, including the Scope of Development attached hereto. The foregoing covenants shall run with the land. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person claiming under or through it 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 Site. The foregoing covenants shall run with the land. The Developer shall refrain from restricting the rental, sale or lease of the property on the basis of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clas3es: a. 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 race, color, creed, religion, marital status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee 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, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." b. 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: 1159.05 001061-0001 12/14/96 34 "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, ancestry or national origin 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." C. In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, ancestry or national origin, in the sale, Iease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee 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, subtenants, sublessees or vendees of the premises." Subject to Sections 322 and 406, the covenants established in this Agreement and the deed of conveyance for the Site shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency, its successors and assigns, the City, and any successor in interest to the Site, or any.part thereof. Notwithstanding the issuance of a Certificate of Completion for the Site, the covenants against racial discrimination shall remain in effect in perpetuity. F. [§ 406) Effect of Violation of the Terms and Provisions_g f this Agleement After Completion of Construction. The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its o,,Nm right and for the purposes of protecting the interests of the community and other parties, public or private. Such covenants are established by and enforceable only by the Agency, and are not intended to create any third parry beneficiary and may not be enforced by any person or entity other than Agency. The Agreement and the covenants shall run in favor of the Agency, without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Site or in the Project Area. The Agency shall have the right, if the Agreement or covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled. Notwithstanding any other provisions of this Agreement to the contrary, all of the covenants of the Developer contained in this Agreement with respect to the Site (excepting only the covenants against discrimination) shall terminate and be of no further force or effect as to the Site (or any Lot thereof, as applicable), upon the issuance of a Certificate of Completion for the Site or such Lot, and thereafter aP, rights, obligations, and covenants of the parties with respect to the Site 1359.05 001063-0001 21/14/96 35 or such Lot shall be as set forth in the Grant Deed. Notwithstanding issuance of a Certificate of Completion for the Site, the Developer and its successors and assigns shall still be required to maintain the Site and perform all other obligations in accordance with the standards set forth in the Grant Deed. Issuance of a Certificate of Completion shall not waive, limit, or terminate any obligation of a party to return or release any deposit or security pursuant to the terms of this Agreement, repay any amounts due to the Developer pursuant to the terms of the Developer's Loan described in this Agreement, or to limit the scope of any indemnity obligation which has accrued or which, by its terms, remains applicable following the Certificate of Completion. V. [§ 500] DEFAULTS AND REMEDIES. A. [§ 501] Defaults -- General. Subject to the extensions of time provided by Section 603, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. A party claiming a default shall give written notice of default to the other party, specifying the default complained of and the actions required to correct such default. The party asserting the default shall not institute proceedings against the other party if the other party, within thirty (30) days from receipt of such notice, commences to cure, correct or remedy such failure or delay and completes such cure, correction or remedy as soon as reasonably practicable after receipt of such notice. B. [§ 5021 Legal Actions. 1. [§ 5031 Institution of Legal Actions. In addition to any other rights or remedies and subject to the restrictions in Section 501, either party may institute legal action to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any default, to recover damages for any default, or to obtain any other legal or equitable remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Orange, State of California, in an appropriate municipal court in that county, or in the Federal District Court in the Central District of California. 2. [§ 504] Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 1159.os 001061-0001 11/14/96 3 6 3. [§ 505] Acceptance of Service of Process. In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon the managing member of the Developer and shall be valid whether made within or without the State of California or in such other manner as may be provided by law. Service on the foregoing natural person accomplished by or on behalf of the Agency shall be deemed to effect service on the Developer (and all its constituent members) to the greatest extent permitted by law. C. [§ 506] Rights and Remedies Ate Cumulative. Except as otherwise provided expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Without limiting the generality of the foregoing, the right of either parry under Section 511 or 512 to terminate this Agreement due to a default by the other parry shall not be deemed to prohibit or limit the right of the party entitled to termination to sue for specific performance, damages, and all other appropriate relief. A- D. [§ 507] Inaction Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. E. [§ 5081 Remedies and Rights Prior to Convevances. 1. [§ 509] Damnes. If any default is not cured or commenced to be cured by the defaulting party witMn the time provided in Section 501 above, then, subject to the limitations of Section 512 below concerning liquidated damages, the defaulting party shall be liable to the other party for any damages caused by such default. 2. [§ 510] Specifig Perfplma. 1359.0s 001063-0001 11/14/96 37 If any default is not cured or commenced to be cured by the defaulting party within the time provided in Section 501 above, then, subject to the limitations of Section 512 below concerning liquidated dainages, the non -defaulting party at its option may thereafter (but not before) commence an action for specific performance of the terms of this Agreement. 3. [§ Sill Termination by the Developer Prior to the Qgnveyarice. In the event that, prior to the Conveyance: a. The Agency does not tender conveyance of the Site, in the manner and condition, and by the date established in the Schedule of Performance (Attachment No. 6) for the Conveyance, and any such failure shall not be cured within the period provided in Section 501; b. The Developer determines, in its reasonable discretion, that the condition of the soils on o: under the Site (other than the presence of Hazardous Substances) is not suitable for the uses to which the Site is to be put, and such condition is not cured to the Developer's reasonable satisfaction within a reasonable period of time by the Agency after written demand by the Developer, or the cost of Remediation of Hazardous Substances exceeds the Remediation Cost Cap, and the Agency will not pay for the costs in excess of the Remediation Cost Cap; C. The Developer is unable, notwithstanding its diligent efforts, to obtain financing, acceptable to the Developer, for the acquisition and development of the Site; d. Any of the Conditions Precedent to the Developer's performance of its obligations has not been satisfied (or waived by the Developer) by the time provided in the Schedule of Performance (as the same may be extended pursuant to Section 603) except those conditions which are to be performed by the Developer; or e. Any conditions or mitigation measures requiring the expenditure of funds by the Developer (and not otherwise already imposed on the Developer pursuant to this Agreement) are required of the Developer in connection with development of the Site as a result of environmental review of the proposed development and Agency fails to assume responsibility for payment of all costs and expenses related thereto; then, at the option of the Developer, upon written notice to the Agency, all provisions of this Agreement shall terminat: and be of no further force and effect, the Developer Deposit, all letters of credit, guaranties or other security or funds posted by the Developer, and all funds payable to the Developer upon such termination, shall be immediately returned to or paid to the Developer, as applicable; and thereafter, neither the Agency nor the Developer shall have any further rights against or liability to the other with respect to this Agreement (except that the Developer does not, in such event, waive any legal or equitable rights or remedies it may have against the Agency for the Agency's default or failure to the return any documents or pay any funds to which the Developer is then entitled). 1359.05 001063-0001 11/14/96 3 8 4. (§ 512]Termination hy the Asency Prior to the Conveyance. In the event that, prior to the Conveyance: a. The Developer (or any successor in interest) assigns or attempts to assign the Agreement or any rights therein or in the Site in violation of this Agreement and such action is not cured within the period provided in Section 501; or b. ' There is a change in the ownership of the Developer contrary to the provisions of Section 107 hereof and such action is not cured within the period provided in Section 501; or C. The Developer does ret submit certificates of insurance, construction plans, drawings and related documents as required by this Agreement, in the manner and by the dates respectively provided in this Agreement (as the same may be extended pursuant to Section 603) and such default or failure is not cured within the period provided in Section 501; or d. The Developer fails to countersign the Grant Deed (Attachment No. 7) by the time established in the Schedule of Performance (Attachment No. 6) (as the same may be extended pursuant to Section 603) for the Site Conveyance and such failure is not cured within the time provided in Section 501; or e. Any of the Conditions Precedent to the Agency's performance of its obligations has not been satisfied by the time established therefor in the Schedule of Performance (as the same may be extended pursuant to Section 003), except those conditions which are to be performed by the Agency; or f. The Developer does not take title to the Site upon tender of conveyance by the Agency pursuant to this Agreement and following satisfaction of all Conditions Precedent thereto, and such failure is not cured within the time provided in Section 501; or g. The Developer is otherwise in default under this Agreement and such default has not been cured within the time provided in Section 501; then, at the option of the Agency, upon written notice to the Developer, this Agreement shall be terminated, and thereafter neither party shall have any further rights against the other under this Agreement (except that, subject to the limits of the following paragraph, the Agency does not in such event waive any legal or equitable rights or remedies it may have against the Developer for the Developer's default). IN THE EVENT OF TERMINATION UNDER SECTION 512(a) TO (d), INCLUSIVE, (f) OR (g), THE DEVELOPER DEPOSIT OF $50,000, AS SET OUT IN SECTION 109, SHALL BE RETAINED BY THE AGENCY AS LIQUIDATED DAMAGES AS THE SOLE AND 1359.05 001063-0001 21/14/96 39 EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, OF THE AGENCY HEREUNDER IN THE EVENT OF TERMINATION, THE AGENCY WOULD SUSTAIN DAMAGES BY REASON THEREOF THE AMOUNT OF WHICH WOULD BE UNCERTAIN. SUCH DAMAGES WOULD INVOLVE SUCH VARIABLE FACTORS AS THE DELAY OR FRUSTRATION OF TAX REVENUES THEREFROM TO THE CITIF AND THE AGENCY, THE DELAY OR FAILURE OF THE AGENCY TO FURTHER THE IMPLEMENTATION OF THE REDEVELOPMENT PLAN, AND LOSS OF OPPORTUNITY TO ENGAGE IN OTHER POTENTIAL TRANSACTIONS, RESULTING IN DAMAGE AND LOSS TO THE AGENCY. IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE AMOUNT OF SUCH DAMAGES TO THE AGENCY, BUT THE PARTIES ARE OF THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE TO THEM THAT THE TOTAL OF SUCH DAMAGES WOULD APPROXIMATELY EQUAL THE AMOUNT OF THE GOOD FAITH DEPOSIT (WITH ANY ACCRUED BUT UNPAID INTEREST THEREON), AND SUCH AMOUNT SHALL BE RETAINED BY THE AGENCY UPON TERMINATION AS THE TOTAL OF ALL LIQUIDATED DAMAGES FOR ANY AND ALL SUCH DEFAULTS AND NOT AS A PENALTY, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES BEING HEREBY EXPRESSLY WAIVED BY AGENCY. AGENCY HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. IN THE EVENT THAT THE DEVELOPER SHOULD CHALLENGE THE APPLICABILITY OR EFFICACY OF THIS PARAGRAPH OR IF THIS PARAGRAPH SHOULD BE HELD TO BE VOID FOR ANY REASON, THE AGENCY SHALL BE ENTITLED TO THE FULL EXTENT OF DAMAGES OTHERWISE PROVIDED BY LAW. THE DEVELOPER AND THE AGENCY SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR INITIALS BELOW: Developer Initial Here Agency Initial Here In the event of a termination pursuant to Section 512(e), the Developer Deposit shall be returned to the Developer. In the event of a termination under Section 512(a) to (g), all letters of credit, guaranties or other security or funds posted by the Developer, other than the Developer Deposit, and all other funds payable to the Developer upon termination of this Agreement, shall be immediately returned to or paid to the Developer, as applicable. F. i§ 513) Remedies of the Parties for Default After the Convevance. 1159.0s 001063-0001 11/14/96 40 1. [§ 514] Termination and Damages. After the Conveyance, if any default is not cured within the period provided in Section 501, the defaulting party shall be liable to the other party for any damages caused by such default. 2. [§ 5151 Action fQr Specific e o an e. After the Conveyance, if any default is not cured within the time provided in Section 501, the defaulting party at its option may institute an action for specific performance of the terms of this Agreement. G. [§ 516) Reentry and Reverting of Title in the Agency After the Conveyance. Subject to the provisions of Section 322, the Agency has the additional right, at its option, to terminate this Agreement and, upon such termination, to reenter and take possession of the Site, or the portion thereof for which a Certificate of Completion has not been issued, with all Improvements thereof, and terminate and revest in the Agency the estate conveyed to the Developer, if after conveyance of title to the Site and prior to the recordation of a Certificate of Completion for the affected portion of the Site, the Developer (or its successors in interest) shall: 1. Fail to start the construction of the Improvements as required by this Agreement for a period of sixty (60) days after written notice thereof from the Agency (as the same may be extended pursuant to Section 603); or 2. Abandon or substantially suspend construction of the Improvements required by this Agreement once commenced for a period of sixty (60) days after written notice thereof from the Agency (as the same may be extended pursuant to Section 603); or 3. Transfer or suffer any involuntary transfer of the Site, or any part thereof, in violation of this Agreement and such violation shall not be cured within sixty (60) days after the receipt of written notice thereof by the Agency to the Developer (as the same may be extended pursuant to Section 603); but 4. Notwithstanding the time limitations in subsections (1), (2) and (3), so long as the Developer is proceeding with reasonable diligence to correct or cure any cause set forth in such subsections, such time limitations shall be extended for the time necessary to complete such correction or cure. Such right to reenter, terminate and revest shall be subject to and be Iimited by and shall not defeat, render invalid or limit: 1. Any mortgage or deed of trust permitted by this Agreement; or 1359.05 001063-0001 11/14/96 41 2. Any rights or interests provided in this Agreement for the protection of the holders of such mortgages or deed of trust. The Grant Deed (Attachment No. 7) shall contain an appropriate reference and provision to give effect to the Agency's right as set forth in this Section 516, under specified circumstances and prior to recordation of any Certificate of Completion, to terminate this Agreement and to reenter and take possession of the applicable portion of the Site, with all' Improvements thereon, and to terminate and revest in the Agency the estates conveyed to the Developer in such portion of the Site. Upon revesting in the Agency of title to the affected portion of the Site as provided in this Section 516, the Agency shall use its best efforts to resell the Site as soon and in such manner as the Agency shall find feasible and consistent with the objectives of the state redevelopment law and of the Redevelopment Plan, as it may be amended, to a qualified and responsible party or parties (as determined by the Agency) who will assume the obligation of making or completing the Improvements, or such other improvements in their stead as shall be satisfactory to the Agency or who will assume the ownership, management, and operation of the Site all in accordance with the uses specified herein and specified for the Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the proceeds thereof shall be applied: 1. First, to reimburse the Agency, on its own behalf or on behalf of the City, for all costs and expenses incurred by the Agency, including, but not limited to, any expenditures by the Agency or the City in connection with the recapture, management and resale of the Site or part thereof (but less any income derived by the Agency from the Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Site or part thereof which the Developer has not paid (or, in the event the Site is exempt from taxation or assessment or such charges during the period of ownership thereof by the Agency, an amount, equal to such taxes, assessments, or charges as would have been payable if such area were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Site or part thereof at the time of revesting of title thereto in the Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer; any expenditures made or obligations incurred with respect to the making or completion or operation and management of the Improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing the Agency by the Developer and its successor or transferee; and in the event additional proceeds are thereafter available, then; 2. Second, to reimburse the Developer, its successor or transferee, up to the amount equal to the sum of (a) the Purchase Price paid to the Agency by the Developer for the Site; and (b) the costs incurred by the Developer for the development of the Site, and for the Improvements existing on the Site at the time of the reentry and repossession, including onsts for plans, reports, studies and other like matters; and (c) all funds advanced by Developer in connection with acquisition of the Third Party Parcels or clearance, environmental testing and remediation of 1359.05 001063-0001 11/14/96 42 the Site; less, (d) any net gains or income withdrawn or made by the Developer from the Site or the Improvements thereon. Any balance remaining after such reimbursements shall be retained by the Agency as its sole property. The rights established in this Section 516 are to be interpreted in light of the fact that the Agency will convey the Site.to the Developer for development and operation for the purposes herein specified and not for speculation in undeveloped land. VI. [§ 601] GENERAL PROVISIONS. A. [§ 601] Noticelnemand� and Communications Between the Parties. Written notices, demands and communications between the Agency and the Developer shall be sufficiently given if delivered by hand, dispatched by reputable overnight courier service, or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer at the addresses specified in Sections 105 and 106, respectively. Such written notices, demands a -id communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section 601. Any written notice, demand or communication shall be deemed received immediately if delivered by hand,' shall be deemed received on the first working day following dispatch if delivered by overnight courier service, and shall be deemed received on the third (3rd) day from the date it is postmarked if delivered by registered or certified mail. B. [§ 6021 Sonflicts of Tnterg�t. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee of the Agency participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. C. [§ 6031 EnforcedDelav Extension iofTimesof Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to: war, insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority-, litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier, acts or omissions of the ether 13S9.05 001063-0001 11/14/96 43 party; acts or failures to act of the City of Huntington Beach or any other public or govemmental agency or entity (provided that the acts or failures to act of the City shall not excuse performance by the Agency); or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period'of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within sixty (60) days of the commencement of the cause, or from delivery of such notice if delivered after such sixty (60) day period. Times of performance under this Agreement may also be extended in witiin; by the mutual agreement of the Agency and the Developer. D. [§ 6041 hign-Liabiility of Qfficials and Employges of the Agency and the evelo er. No member, official or employee of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or the City or for any amount which may become due to the Developer or its successors, or on any obligation under the terms of this Agreement. • No officer, director, member, or employee of the Developer, or officer, director, member, or employee of any partner of the Developer, shall be personally liable to the Agency or the City, or any successor in interest, in the event of any default or breach by the Developer or for any amount which may become due to the Agency or the City on any obligation under the terms of this Agreement. E. [§ 6051 Entire Agreement. Waivers. Consent and Approval. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. This Agreement includes pages 1 through 51 and Attachments 1 through 11 which constitutes the entire understanding and agreement of the parties. Subject to the limitation set forth below, this Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. Notwithstanding anything in this Agreement which is or appears to be to the contrary, in the event that all land use entitlements required by the Developer to proceed with the Improvements described in the Scope of Development are not obtained by the date set forth in the Schedule of Performance and in the form contemplated by and acceptable to the Agency and the Developer, then, at the Dzveloper's written election, this Agreement shall terminate and be of no further force or effect, thi Prior DDA shall be reinstated in full force and effect, the parties shall proceed with processing and development of the Improvements contemplated by the Prior DDA, qs 1359.05 001063-0001 21/14/96 44 modified by subsequent City -approved entitlements or plans, as quickly as reasonably possible, and the Agency and the Developer shall be entitled to assert all rights and enforce all obligations arising from or contained in the Prior DDA. All waiver of the provisions of this Agreement must be in writing by the appropriate authorities of the Agency and the Developer, and all amendments hereto must be in writing by the appropriate authorities of the Agency and the Developer. Except as otherwise expressly provided herein, when any consent or approval is required from or by another party, such party shall act reasonably and shall not unreasonably withhold or delay such consent or approval. F. [§ 606] Memorandum of Agreement. The parties, hereto shall execute and cause a Memorandum of Amended and Restated Disposition and Development Agreement attached hereto as Attachment No. 11 and incorporated herein to be recorded in the Official records of Orange County, California within thirty (30) days after the Effective Date of this Agreement. V1I. [§ 700] TITHE FOR ACCEPTANCE OF AGREEMENT BY AGENCY. This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within forty-five (45) days after the date of execution and submission of one (1) copy of this Agreement by the Developer or this Agreement shall be void, except to the extent that the Developer shall consent in writing to a further extension 1359.05 001063-0001 21/14/96 45 of time for the authorization, execution and delivery of this Agreement. The date of this Agreement shall be the date when it shall have been signed by the Agency. IN WITNESS WHEREOF, the Agency and the Developer have signed this Agreement on the respective dates set forth below. DATED: , 19 "AGENCY" REVIEWED AND APPROVED: REDEVELOPMENT AGENCY OF THE CITY OF 1 UUNrINGTON BEACH, a public body corporate and politic By: Name: By: Its: Executive Director Name: of the Agency Its: Chairman By: Name: Its: Director of Economic Development of the Agency APPROVED AS TO FORM: Agency Attorney ATTEST: Agency Secretary [SIGNATURES CONTINUED ON NEXT PAGE] 1359.OS 001363-0001 11/14/96 4 6 JT DEVELOPMENT C mPANY, LLC, a California Limited Li bi ity Company John Tsai Member By: Jo T Zotson Mana ' g Member By: Mike Roberts Member 1359.OS 001063-0001 11/14/96 47 11-lb-90 Ul :4brt! fROY BW a C - LAW Or"F10ES ?O ?5*j053*lg9111437550 P002 Q. [§2171 E'6ezaf Estate Ima and Assand Valuations 8. Ad valorem taxes and assessments, ifany, on the Site, levied assessed, or impwzd for any period prior to the Conveyance, shall be borne by the Agency. All such ad valorem taxes and assessments levied or imposed for any period after the Conveyance shall be paid by the Developer. b. After the Conveyance, the Developer shall make no appeal or Challenge of an assessment of the €airmarket value of the Site for property tax pwposcs that would result in reducing the assessed value below Two Million One Hundred Fifty Nine Thousand Dollars (52,159,ODO.00). C. Upon the issuance of the Certitcate of Completion and for the following seven (7) years, the Dcve?oper and its successors and assigns shall make no, appeal or challenge of an assessment of the fair market value of the Commercial Lots for property tax purposes that would result in reducing the assessed value below Seven Million Five Hundred Thousand Dollars (57,500,tm0.00), as aggregated across the Commercial Lots. The foregoing shall not prevent a reassessment below Seven Million Five Hundred Thousand Dollars ($7,500,000_00) in Cases of damage or destruction of all or a portion of the Improvements on the Commercial Lots, pending reconstruction of the Improvements. The ussesscd value may be sDrtad across the Commercial Lots on any basis, so long as the aggregate value is met. Should the assessed value of the Commercial Lots be reduced such that the total assessed value of the Commercial Lots is less than Five?&Ikon Dollars (S5,000,000.00) as aggregated across the Commercial Lots, rhea the Developer and its cuccemrs and assigns shall agree to an increase in assessed %21uc to not less than Five Million Dollars (S5.000.000.00). The foregoing shalt apply to all transfers. assignments and banlauptcy proceedings, but shall terminate in the case of a transfer due to a foreclosure or deed in lieu of foreclosure to a commercial lender unaffiliated to Developer. Upon the transfer of all interest in the Site by Developer or any successor to an unaffiliated entity, the transferor shall have no further liability with respect to events occurring after the date of transfer. ATTACHMENT NO. I SITE INTAP 1359.05 001063-0001 11/14/96 48 ' AST r;r-- r`.+ NO. I 3 � �. .. 101 19 RII i 1 • i S f 4 8 4 • r: r1 • Nr 4r.?i are 1 T t ~» r \� mac'• «� / , ^ r - - t IT r ?S � .• �� t• '•'s � t G• P� t ?r �_-J r tt , rr L f - • I I JA 9 , h •r r `�s� r � � 1 � 1 r + 1� 22i i 121 •� r Ate! I r ly ssr iso moo• rr-� :�• : Yam: ` iX r oll-. V �^•C '25;� 38 'l � 9 tt• 37 •' ► �1 f Y/ r;:.0 JT th1 L► V'E 07-09-90 Ai rACIL'SEN NO. 04e8u/2460/43 Pas* 2 of I ATTACHMENT NO.2 Block 304 of Huntington Beach Tract, County of Orange, as per map recorded in Book 3, page 36 of Miscellaneous Maps in the Office of the County Recorder of said county. 1379.05 001061-Ml 11/14196 ATTAC11h1ENr NO.3 SCOPE OF DENTMOPMENT The project shall contain approximately 80,000 square feet of residential space consisting of approximately 48 town home style units ranging from approximately 1,450 to 2,100 square feet in size. The project M11 include approximately 41,000 square feet of commercial space divided into 11,000 square feet of office on the second floor fronting Main Street, at least 4,500 square feet of restaurant located at the corner of Main Street and Olive Avenue and the balance shall be devoted to retail commercial uses. The configuration of the project, and the exact number and mix of residential units and commercial square footage shall be determined pursuant to the terms and conditions of the Land Use Entitlements. AE RKING The project will provide two hundred fifty-two (252) parking spaces, with the exact number of parking spaces to be determined pursuant to the terms and conditions of the Land Use Entitlement, and subject to the Developer's elections pursuant to Section 403 of this Agreement. Parking spaces shall be constructed in a "ramp" configuration which will provide one semi - subterranean level, one level below grade and one level above grade. Access for the commercial parking spaces shall be on Olive and Orange Avenues and the residential parking will have a separate entrance from Fifth Street. There shall be no vehicular access between the commercial and residential parking areas. The residential portion of the structure will also incorporate the necessary elevators, stairs and lobbies to provide secure and convenient access for residents, guests and emergency service providers. The project v ill be constructed consistent with the Downtown Design Guidelines adopted by the City and be of Mediterranean design incorporating specific architectural details such as smooth stucco walls, balconies with wrought iron railing, tile roofs and tile detailing, awning and at least one water feature. It shall incorporate landscape and hardscape elements associated with the style. 1359.Os 001063-0001 11/14/96 so The project will incorporate a public art component which may be satisfied through either placed art or performance art programmed on a year round basis. The art component shall be submitted to Agency Staff prior to Certificate of Occupancy on the commercial space. The specific measures necessary to me=t the requirement will be determined by the Land Use Entitlements. • • ata � ti! ' � • � ►� The project will provide on site and off site improvements including but not limited to curbs, gutters, relocation and undergrounding of electrical service, relocation of sewers, water, and other public utilities and expansion thereof, as more particularly described in Exhibit A attached hereto (the "Off -Site Public Improvements'). The project shall conform to the final conditions of the Land Use Entitlements as approved by the Planning Commission or City Council. Where the conditions of approval conflict with the provisions of this Scope of Development, the conditions of approval shall prevail. 1359.05 001063-Q001 11/14/96 51 AA:0 FY: 4A41)L4 i A. IATIS 190'2 C.lm. 9.1ITE 210 1Rv;i+E. CL 9T11a (71.4) 56C--0110 EXHIBIT "A" NCWM--8 / : LLMZN OvE Lo*qLHT +IJNT:AGT�: atX?+. CA-, ?I ZNLA Xe Ho-: M97-2s;-1 GATE: r9/13/90 BY: W-/DG Ya-a.-.."aa me amass ra a a a4a a a a..�. ss 3Fm,=q =m%---aaMM+wsa■■.a..■ a.... Mason aa.r+.. ( ;ES7Lx►TCO ( I WMT1TY ILWIT1 1 A. GALS I 1 I ] I IRF-XNt EXIST M. A.C. P4;lE,`OT I I I 3e.370 IS.F.1 I f-c4ovE EX I ST P4 CURE ; I. —'M 1 L. F. igoclvE cN=t S:DI"A" melOa onvsay ; 13.0 S IS.F.I f S:;VLrAL I f f � I -c4m. cvSTING a- V£ra LSH( I I I 455 It.f.1 -KV( CIS+ 1W, W-C-2 rAQA CLES I 1 I E►. • I I' I I "mu—, I l I WATER I I I I I 1 ;�rE EXIST1WG 8" WATER LIME ( I I NS 1L.F.1 f Q= 04 i Ss.L A4E EXISTD4 WATER PCER I I 1 ( TIL I I 1 I 1 1 . :_GRICALME'LlPeCNE/W I I I I I I l 190CVE DCSTING UTILITY Pa ES i LINES 1 t IEA. 1 I;DcvE easgw. VuzzT LIB' I 3 IEA. ] It DOA CX;STI4 CILS LINE {IrC :iGIli6 P#TERS) I 3w IL.F.I 1 I I 1 MIx'.cLLJu+G�..'S 1 � 1 7 1EA. l IRE:'. A c PAZCli. P' -M I M IEL• I I R341E EXI5'-RAG KAU Pa." PIPE I 94 1 L. F. I ' sJBTOTAL I I ] I wrAL REPt7+AL I I ] i 110 CKr:ERLIW- of STREETS IM--Ln" IA'_::Y {I�. SA:•C_ti'II►+:) I I 1 I ( I I IA=Yt3 SDIZA PAIN k-MLVAL FZQM 157rM RIGHT- F-;.4Y OF CUNE TO 1 ic-- E;.LIi,E OF CRC ] I►+GLL�I►�. EX:SING SF�A tATIRAtS I I � I I I l i 1 A,S."a.KD .:A,cR PAN V--CV L rAQ1 1c' I VQVIr4 8" $aTEA PAIN IN OWICZ. 1 i I � I ] I 1 l j!W-- t-04 TELEP* ,'E I ELEC-TRICAL I JURVIM ] ,:!+GLUON EXIST:)G W u-m us I II I I ( I ( ( l 1 1 3 R -04 ENTIR-c PIP£ I OR: ►K,F i PORT ION TO =%T'ERr:W ICE:. D4 CLUE IW+-, IW6 TWC4 I REST.► T Ick 1 l l 1EPA4.400 !Y: q-'X)( i AS=:ATES :pa yc.: c49T-251-1 3012 �, gS TE 210 OATZ: C8/13/90 WINZ. CA 927T4 %rAc>8/T,,LL7 SN DmL^opfjr Sir: MUM Ili) 660411C hUNTINGTQ+ MACH. CJLLIFCRNIA ' .......r...........r.aa....ra,....rr...aaa+asaaamaa Aaa8gasa=a a asaa:•a.. a a------ a a,saa..a.ra ' Ic37:.`wTZ9 I I LwT" I EST!MTED 6I DESC1tIFrICH WAMTITY JUNITI PRICE I CwT I 'A_-mARrS I ELi.�:Ua.1'lE' tA�+E/Ctils I I a>c-xcr ts4xrp-,t" E+EC`7alc I I I 750 IL.F.I I I� I I OW- RUC; LPX O 7E'-tF4 E I 15: IL.F.I I I C04ZT,W C'i tP-aXX LND CJQ.l T.V. I 750 IL.F.I C>W,ZC'T W LINE I :M IL. F.I I l s{:s7A:k I I I I TOTAL UTIL:Fv fPVQCVLul-NTS I I I I I 1). VCcr DUN : twcwTS I I I I I I I ! 3 IEA. •I I I I .-, V: PUra i XIM EXISTD4 R.C.P. I 2 IEA. I IA' MA;H i CLIVE I ;CDc7rp-c-, C.&TV w7k Vw"') I slam- I I i !c:: Vz.c.,. Ian R.C.P. l "0 IL.F. I IIx n&:H ST. (:),C— LATE A-S) I ! WeTa-AL I I I l : TCTAL PJSLIC IrPQC%'F-f_HT5 I I I I a.asaesssa�a�.aaa.wr.�aa■ate■aawaa...a�aa■a.,w.aaarwa. gas gas agaaawaaaaow. ama�_I---aaaal • E. ! :7-%CY i zit i ASS.-6.WX $ I I I 1 f IET4IMEER:)4 i IW.Wle- :IGK FUS I I I IL.S. I I I •8: TOTAL PJSLSC Il4W0VV<. rT CMT I ITRA;FIC IPPAC.r FEE I a.ass ITtIpi IpER J:ri 3TTERsa"iA=,wr.,cp I ICAPITAL FACILMS WkTER FEE I 3 IW.S.I IC:3KX!AL-P';R JUF Rya, I IWITAL M.-LSTO w:cR rM I 6a ID.U. I IRES:CZK-,IAL-W/AS2j-VTiaa I ICITY SCR FE= I 6a ID.U. I IRES:: tiTIAL I ICITY SCE FE-11 I 1.9 l,c. I IC +'ExC'.AL I IC.,S1XCnCM rKTER FEE I 6a ID.U.I ICE?.0 $12/LNIT/►O.6 K:S.IH A.• "=l lou GE C1WI.Y. SMITATiOK OISTAICr &&n FEE I V.WO IS.F.I. I=1viCl/L I ICRAWCE CCxz+1T'Yi &WrrA770H OISSRIC+ rwqU F_: I 5a D.U. ILL:.QrYTIAL I IMAIX,V.- FU ; l s IAA- I ! I IOE1rL:Er'ER "0 CZT I It.s.I II'Z TOTAL PjU-IC I-V5M!DCX-. C:r. l FTAL AWCf FM i A=E--2-ETs -.r.raw.r.�sr—.rr.�_r.wr.t.r.+.al ..�+.. is rra���.�..>_r.wa..aa�.—.rr�wa•�.r-.r.r.._.r_.+r F. CnWMTAKT*S FE-a I Iu.I I I1C: TOTAL Pi LIc 11upwVVINT C=T I I I I l I IIHCLDES CWIL QCIWaR DES104 A I I I I I I lrULD McrMcIlId+ srvtru+c i I I I I I I IScl-.s 04:NMRIHc =WsmTAKT FATS I .r.a.a.�wfw/�Ya.�YwawaYM.Ra a__-_-ii•wa aiA--S••_1-"SAME a.�l�'�a. a4w.Mau gala a a ate' rasr Xa aaia`pa�aaw �.�.. 3 KElsARED Bv: KtLX4 2 A.S=lATES JcJ Ac. c D?97-e-1.1 10012 C)6", SUM 210 WE: CS/13/9c IrVIK. CA 92714 Hcwc:Dtrr.LLCTSo+ wvE;DP,,E.,(T ay. !' loa (714) 660-•0119 rAjKTIFG'7,pY bEA04. CALIFCP-4:A a.a ■aas.aasar tea.. a^srrrr-r.rr.a......u..ryaum soma* ate so a" r.r...a..u.... I i=�rra►T;a l I I I I OESCRIPrICH _ a.;A m iu41TI ( ME I" [ I (c>c-.Z= cite & am a I I I 1.390 IL•F•I IC>d7Z.CT A.L. PAVC4_kl :ti I e-0o ITCN I I : 1 I. a7s 1',-x I Ic:N sIK.-A- [ 13.625 [S.F.[ [c:NST;Z= C..= 6.Ir7ER [ 600 12. F . Ic04r: xr KQC:CAR wes I 4 iCA• [ ICDJ.T7,2: , DC R.ATPA ME`T L:C:nz. - :Ou-- j 3 IEl. [ ICDC7,RY XMRATIVE rRCET L:C:+TS - S:WGLE j 2 IEA. IUl=Tt STnS LIGM - s:MCAID 6 IEA. I Ira;=T ::ate C'J WIT [ 1.410 IL.F. I 'SIC M 5 IPU4 I 1 jl.S.I .wFYC CMTEO. I I IL'.S.1 i'.wcsuP= Aucs:">�= I C. UTILITY :}vr_l1fc__%rS I Spa Icamr-cr a-•sacR MAIM jcDcmXM vxx mo# L, lax, T soca a k4cur iRv4m J.-M s jots JWsxxr sEV-2 WEIAL (6' %CP) I SL' I I WATut 1 ' ICNr.Zrr r; ATER ratM 90'G7E VALVE } 72' MAT12 PAU [ . 12. GATE VALVE ICST:x.,Cr FIRE HYDRk(T AZS-,-16LY (Ili. ►� SC>FG'7t,7C: 9''FIRE SEN'C (IHC.. VALVE) [C =4JCT 2' -WATER 301VIC (1�. )OVER) I aXr. i;= H= TAP (I1r.. VALVC ) (efcvE TAt IL= a m_, c i xim LIST. ( I`C car c FI2' wDewy II..r.+w..a,..rrrr..•r••r...+.�w_.r.r�w.6"aar 004" 8 i 7r•rM.a�`-ra w.r.r. I I 1 t I I i I I I I I ( sao iL:F.I I 3 [ Ek• I ( 1 i'�• I ( 1 1EA. I r,L I I l 1 I I 1 s JEX [ 29S IL.IT. [ l Ilu-I LVE)I 5 IEA. 1 I EJL ( A ILL I 1 2 IEA_ I W. 2 Imo- I I :TALI I ( I l I+D DECORATIVE PA{,tIMCkT jg_- Af3 I I I IASSLKO DECORATIVE {7�ETE IAT F I1i'1f Ii OLD1. I I I IJwAIN SMET I ;w►I.r sr�rT I ICR".E. EVE i FIF;rt Wit -:Is I I 1 I I I CuR 3 NG c>ST L—1 Cw I I ING. 7 TRf=s CN MN ! =/Me! I ' I i I [ I I I I I IFS Ex. M.N. 4 )AIN i CL.IVE I I 'TES. Cf Ex. USE I I AT PLAIM A CLIVE I 13 LATERALS IN MAIM ST-..IET I •I I I i l ! IcuVi 5 FIF:}1 vmers [ I I bulk STREET I (AsSUKD I I IDO'cric i lJUcx.%'x [ I 1 I I IAT PAN s CFI I •I 1 I I ATTACHMENT NO.4 1►y n f 1379.05 001063-W I 11/14/96 ( 1) ATTACHMENT NO. 5 INTENTIONALLY DELETED 1379.05 001063-0001 11/14/96 (2) ATTACHMENT NO.6 46IMMINFRESIS • ��] I. GENERAL PRON:ISIQNS 1. Execution of Agreement by Agency. Within forty-five (45) days* after the date of The Agency shall approve and execute execution and submission of one (1) copy of this Agreement and shall deliver one this Agreement by the Developer. (1) copy thereof to the Developer. Z. Soils and Preliminary Grading Plan Within sixty (60) days after the approval of Approval by Developer. this Agreement by the Agency. I Submission of Complete Site Plan Application. Developer submits full and complete Site Plan application to City. 4. Review of Final Site Plan. Planning Commission Hearing and City Council Hearing. Agency/City to review Final Site PIan and Design Review Board, Planning Commission and City Council to approve the concept development plan. Approval of conditional use permit, tentative subdivision map and all other entitlements. * All "days" are calendar days. 1379.05 001063-0001 1111-"6 (3) Within sixty (60) clays after approval of this Agreement by the Agency. Within ninety ' (90) days of submission of complete site plan application. EEO NI.-TIM19011MMAM 5. Subdivision Map. Developer is to prepare and City is to process or cause to be processed Subdivision Map for approval for the Site to be sold to Developer. 6. Submission of Complete Construction Drawings and Landscaping Plan. Developer shall submit to the City complete Construction (working) Drawings and a Landscaping Plan, Sign Program, and Finish Grading Plan. Developer may submit for a Foundation and/or "shell only" permit and, for such permit, need not necessarily have drawings completed showing the.details of the residential units except in conceptual form. The Landscaping Plan and final Sign Program shall to completed and approval obtained by Developer prior to completion of the Developer Improvements. 7. City Review of Complete Drawings and Plans. The City shall review the Complete Construction (working) Drawings, the Preliminary Landscaping Plan, Preliminary Sign Program, and Finish Grading Plan and provide comments. S. Revisions, if any. Developer shall prepare revised Construction (working) Drawings as necessary, and submit them to City for review. 1379.05 001063-Mi II/M96 (4) Developer submits within thirty (30) days of approval of this Agreement by Agency; City process concurrent with other entitlements. Within one hundred twenty (120) days from Plannina Commission and City Council approval of final site plan, including conditional use permit, tentative subdivision map and all other entitlements (Item 6 above). Within twenty-one (21) days after submittal. Within thirty (30) days after receipt of City's comments. 9. Final Review and Complete Drawings. The City shall approve the revisions submitted by the Developer provided that the revisions necessary to accommodate the City comments have been made; said approvals constitute the last City approvals required in order for the Developer to pull building permits. 10. Developer Bids Drawings and Obtains Construction Financing. III. SITE DISPOSITION 11. Opening of Escrow. Agency shall open escrow for conveyance of fee title to the Site by Agency to Developer. 12. Conditions Precedent. The Developer and Agency shall satisfy or cause to be satisfied the Conditions Precedent to the Conveyance. 13. Disposition Conveyance. Agency conveyi title to the Site to Developer by the Grant Deed (Attachment No. 7)- 14. Commencement of Grading and Construction. Developer shall commence construction of the Improvements. M9.05 001063-0001 11111996 (5) Within fourteen (14) days after submittal by Developer. Within one hundred twenty (120) days after approval of construction drawings by all applicable governmental authorities. As of this date, Escrow is open pending completion of Conditions Precedent. Within one hundred twenty (120) days after approval of construction drawings by City/Agency. The Conveyance shall take place promptly upon satisfaction of the Conditions Precedent. Within thirty (30) days after the Conveyance. 15. Completion of Construction. Developer shall complete construction of all of the Improvements. 1379.05 001063-Mi 11/14 6 (6) The Developer is to use due diligence to complete the project within fifteen (15) months after commencement of the Improvements; provided, however, the Developer may request up to three (3) three (3) month extensions to be granted by the Executive Director of the Redevelopment Agency. Approval for such three (3) extensions (but no other extensions) is not to be unreasonably withheld; provided the foregoing construction shall be completed not later than twenty-four (24) months after the earlier of (i) the commencement of the Improvements or (ii) the time established in this Agreement for the commencement of construction. ATTACHMENT NO.7 010 IN061ael ;•� RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: The Redevelopment Agency of the City of Huntington Beach 2000 Main Street P.O. Box 190 Huntington Beach, CA 92648 Attn: Director (Space Above for Recorder's Use) The undersigned Grantor declares: Documentary transfer tax is .S (X) Computed on full value of property conveyed THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By: Its: Dated: For a valuable consideration receipt of which is hereby acknowledged, 19 The REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic, of the State of California, herein called "Grantor," acting to carry out the Redevelopment Plan, herein called "Redevelopment Plan" for the Main -Pier Redevelopment Project, herein called "Project," under the Community Redevelopment La-w of California, hereby 1379.05 0010634)001 11/14196 (1) grants to JT DEVELOPMENT COMPANY, LLC, a California limited liability company, herein called "Grantee," the real property hereinafter referred to as "Property," described in Exhibit A attached hereto and incorporated herein, subject to the exceptions, reservations, restrictions and covenants described herein. 1. Grantor excepts and reserves from the conveyance herein described all interest of the Grantor in oil, gas, hydrocarbon substances and minerals of every kind and character lying more than 500 feet below the surface, together with the right to drill into, through, and to use and occupy all parts of the Property lying more than 500 feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said site or other lands, but without, however, any right to use either the surface of the Property or any portion thereof within 500 feet of the surface for any purpose or purposes whatsoever. 2. The Property is conveyed in accordance with and subject to the Redevelopment Plan which was approved and adopted by Ordinance No. 2578, as amended by Ordinances No. 2634 and of the City Council of the City of Huntington Beach, pursuant to that certain Amended and Restated Disposition and Development Agreement entered into between Grantor and Grantee dated . 1996 (the "'DDA'), a copy of which is on file with the Grantor at its offices as a public record and which is incorporated herein by reference. 3. Until July 18, 2018, the Grantee shall not develop or use the Property other than for the development permitted and the uses specified in the applicable provisions of the Redevelopment Plan for the Project (or any amendments thdreof approved pursuant to paragraph 11 of this Grant Deed). 4. The Property is conveyed to Grantee at a purchase price, herein called "Purchase Price," determined in accordance with the uses permitted. Therefore, Grantee hereby covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Property that the Grantee, such successors and such assigns, shall not develop, maintain, use or operate the Property other than as follows: a. Within the time provided in the DDA, Grantee shall develop the Property for residential housing, office, and retail uses as set forth in the DDA. b. Grantee shall maintain the improvements on the Property in conformity with the Huntington Beach Municipal Code applicable to the Property under the terms of the DDA, and shall keep the Property free from any accumulation of debris or waste materials. Grantee shall also maintain the required landscaping in a healthy condition. If, at any time, Grantee fails to maintain the landscaping as required above, and said condition is not corrected after expiration of thirty (30) days from the date of written notice from the Grantor, either the Grantor, or the City of Huntington Beach may perform the necessary maintenance and Grantee shall pay such costs as are reasonably incurred for such maintenance. 1379.05 001063-0001 11114196 (2) S. Prior to issuance of a Certificate of Completion for the Property, or the applicable Lot thereof, the Grantee shall not place or suffer to be placed on the Property, or the applicable Lot thereof, any Iien or encumbrance other than mortgages, deeds of trust, or any other form of conveyance required for financing construction of the improvements on the Property, and any other expenditures necessary and appropriate to develop the Property pursuant to the DDA, and, during such period, the Grantee shall not enter into any such conveyance for financing without prior written approval of Grantor pursuant to the terms of the DDA. No approval will be given for a conveyance of the Property to finance the construction of improvements on real property other than the Property and all off -site improvements required in connection therewith. 6. Prior to issuance of a Certificate of Completion for the Property or the applicable Lot thereof a. The Grantor shall have the right at its option to reenter and take possession of the Property, or the applicable Lot thereof, hereby conveyed, with all improvements thereon, and to terminate and revest in the Grantor the Property, or the applicable Lot thereof, hereby conveyed to the Grantee if the Grantee (or its successors in interest) shall: i) Fail to commence the construction of the Improvements as required by paragraph 4(a) of this Grant Deed for a period of sixty (60) days after written notice thereof from the Grantor, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled; or ii) Abandon or substantially suspend construction of the improvements required by the DDA once commented for a period of sixty (60) days after written notice thereof from the Grantor, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled; or iii) Transfer, or suffer an involuntary transfer of, the Property, or any Lot thereof, in violation of this Grant Deed or the DDA and fail to cure such violation within sixty (60) days after receipt of written notice thereof from the Grantor, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled; but Notwithstanding the time limitations in subsection (i), (ii), and (iii), so long as Grantee is proceeding with reasonable diligence to correct or cure any cause set forth in such subsections, such time limitations shall be extended for the time necessary to complete such correction or cure. b. The right to reenter, repossess, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid, or limit: 13'n-05 001063-0001 11/1.06 (3) i) Any mortgage or deed of trust or other security interest permitted by the DDA; or ii) Any rights or interests provided for the protection of the holders of such mortgages or deeds of trust or other security interests. C. In the event title to the Property or any parcel thereof is revested in the Grantor as provided in this paragraph 6, the Grantor shall use its best efforts to resell the Property or any such parcel thereof, as soon and in such manner as the Grantor shall find feasible and consistent with the objectives of state redevelopment law and of the Redevelopment Plan to a qualified party or parties (as determined by the Grantor) who will assume the obligation of making or completing the Improvements or such other improvements in their stead as shall be satisfactory to the Grantor and in accordance with the uses specified in the DDA for such Property, or parcel thereof, and specified in the Redevelopment Plan. Upon such resale of the Property the proceeds thereof shall be applied: i) First, to reimburse the Grantor, on its own behalf or on behalf of the City of Huntington Beach, for all costs and expenses incurred by the Grantor, including but not limited to, salaries to personnel engaged in such action (but excluding Grantor's general overhead expense) , in connection with the recapture, management, and resale of the Property, or parcel thereof, (but less any income derived by the Grantor from the Property, or parcel thereof, in connection with such management); all taxes, assessments, and water and sewer charges with respect to the Property, or parcel thereof, (or, in the event the Property is exempt from taxation or assessment of such charges during the period of ownership thereof by the Grantor, an amount, if paid, equal to such taxes, assessments, or charges, as determined by the County assessing official, as would have been payable if the Property were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Property, or parcel thereof, at the time of revesting of title thereto in the Grantor or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults, or acts of the Grantee, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the improvements on the Properly or applicable parcel thereof, and any amounts otherwise owed to the Grantor by the Grantee and its successor or transferee in connection with the DDA; and ii) Second, to reimburse the Grantee, its successor or transferee, up to the amount equal to the sum of. (1) the Purchase Price paid to the Grantor by the Grantee for the Property (or allocable to the part thereof) ; and (2) the costs incurred by the Grantee for the development of the Property and for the improvements existing on the Property at the time or reentry and repossession, including costs for plans, reports, studies and other Iike matters; and (3) all funds advanced by Grantee in 1379,05 001063.ONI 1111.06 (4) connection with acquisition of the Tlurd Parry Parcels or clearance, environmental testing and remediation of the Site; less (4) any net gains or income withdrawn or made by the Grantee from the Property or the improvements thereon. iii) Any balance remaining after such reimbursements shall be retained by the Grantor. 7. The Grantee agrees for itself and any successor in interest not to discriminate upon the basis of race, color, creed or national origin in the sale, lease, or rental or in the use or occupancy of the Property hereby conveyed or any part thereof. Grantee covenants by and for itself, its successors, 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 race, color, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy., tenure, or enjoyment of the Property, nor shall the Grantee itself or any person claiming under or through it, 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, sub -tenants, sublessees, or vendees in the Property. The foregoing covenants shall run with the land. 8. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest permitted by paragraph 5 of this Grant Deed or the DDA; provided, however, that any subsequent owner of the Property shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such owners title was acquired by foreclosure, deed in lieu of foreclosure, trust sale or otherwise. 9. All covenants contained in this Grant Deed shall be covenants running vpith the land. Grantee is obligated to develop the Improvements on the Property and the covenants contained in paragraphs 5 and 6 shall terminate and shall become null and void upon recordation of a Certificate of Completion issued by Grantor for the Property, or the applicable Lot therein. Every covenant against discrimination contained in paragraph 7 of this Grant Deed shall remain in effect in perpetuity. 10. All covenants without regard to technical classification or designation shall be binding for the benefit of the Grantor, and such covenants shall run in favor of the Grantor for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or remains an owner of any land or interest therein to which such covenants relate. Subject to the applicable cure periods as set forth in Section 501 of the DDA, the Grantor, in the event of any breach of any such covenants, shall have the right to exercise all rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. 11. Both before and after recordation of a Certificate of Completion, both Grantor, its successors and assigns, and Grantee, and its successors and assigns, shall have the right to consent 1379.05 001063-Ml 11/14/96 (5) and agree to changes in, or to eliminate in whole or in part, any of the exceptions, reservations, restrictions or covenants contained in this Grant Deed without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. The covenants contained in this Grant Deed, without regard to technical classification shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty. Any amendments to the Redevelopment Plan which change the uses or development permitted on the Property, or otherwise change any of the restrictions or controls that apply to the Property, shall require. the written consent of Grantee, or the successors and assigns of Grantee in and to all of the fee title to the Property, but any such amendment shall not require the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. All capitalized tenns not otherwise defined in this Grant Deed shall have the meaning prescribed for that term in the DDA. IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on their behalf by their respective officers hereunto duly authorized, this day of , 199_ ATTEST: Secretary THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic By: Chairman By: Executive Director [Signatures Continued on Next Page] 1379.05 001063-0001 11/14196 (6) The undersigned Grantee accepts title subject to the covenants hereinabove set forth. JT DEVELOPMENT COMPANY, LLC, a California limited liability company By: John Tillotson By: John Tsai By: Mike Roberts 1379.05 001063-0001 1I114/96 (7) STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On , 1996, before me, Notary Public personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of 199` before me, the undersigned, a Notary Public in and for said State, personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. ' Signature of Notary Public 1379.05 001063-0001 I111a96 (8) STATE OF CALIFORNL4 ) ) ss. COUNTY OF ORANGE ) On , b:fore me, the undersigned, allotary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On _ before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. . WITNESS my hand and official seal. Signavare of Notary Public 1379.05 001063-Ml W1496 (9) STATE OF CALIFORNLA ) ss. COUNTY OF ORANGE ) On before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfzctory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such Iimited liability company executed thc'same. WITNESS my hand and official seal. Signature of Notary Public 1379.05 001063-0001 11114-96 (10) EXHIBIT A LEGAL DESCRIPTION OF PROPERTY 1379.05 001063-0001 11/14/96 (11 ATTACHMENT NO.8 Z379.O5 001O63-ODDI 11/14/96 (1) PROPOSED GROUND WATER WELL INSTALLATION WORK PLAN FOR THE CITY OF HUNTINGTON BEACH, REDEVELOPMENT'AGENCY SITE LOCATED AT: NORTHWEST CORNER MAIN AND OLIVE STREETS HUNTINGTON BEACH, CALIFORNIA 92648 PREPARED FOR: CITY OF HUNTINGTON BEACH REDEVELOPMENT AGENCY 2000 HAIN STREET HUNTINGTON BEACH, CALIFORNIA 92648 , FOR SUBMITTAL TO: CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD SANTA ANA REGION 2010 IOWA,AVENUE, SUITE 100 RIVERSIDE, CALIFORNIA 92507-2409 PREPARED BY: GEOREMEDIATION, INC. 3002 DOW AVENUE, SUITE 414 • TUSTIN, CALIFORNIA 92680 f 1 . JANUARY 12, 1996 January 12, 1996 Log: 95-257 City of Huntington. Beach Redevelopment Agency ' 2000 Main Street Huntington Beach, California 92648 Attn: Mr. Stephen Kohler Subject: Proposed work plan for the, installation of additional ground water monitoring wells at the site located at Main Street, Huntington Beach, California. Gentlemen: 1.0 INTRODUCTION This report presents a Proposed Work Plan for the • continuation of site characterization activity at the subject site located at the northwest corner of Main and Olive Streets, Huntington Beach, California (see Figure 1, Site Location Map). This report also includes a summary of site characterization activity completed to date and proposes conducting an air sparge/soil vapor extraction pilot test for determining the feasibility of this method for mitigating subsurface contamination. 2.0 SMC4ARY OF COMPLETED SITE CHARACTERIZATION ACTIVITY GeoRemediation, Inc. (GRI) performed a limited subsurface soil investigation at the subject site as defined by Main Street, Fifth Street, Orange, and Olive Avenues in late winter/early spring, 1990. Two former gasoline service �A Ox -o w =r z �fi ; r O pn ZM F np y= m- v� o C7 m z 0 Job r r O •4 n Z z A -i "' o G C. w :L Z ra r j z m Y > ru�r 70 . 0 .� H G -1 In v nti arn C% b z -1 ti w� 30 N U r 401 P; LO 0 January 12, 1996 Page 2 stations were reported to have been located on the subject site, however, no records were available detailing the location of the gasoline underground storage tanks. The purpose of the investigative activity was to determine `if subsurface soil and/or ground water contamination was present at the site as a result of the former gasoline service station operations. On March 28, 1990, eight (8) soil borings were excavated in the perimeter planter in the northeast corner of the -site to depth ranging,fron 12 to 17 feet below current grade (bcg). No significant indications of soil contamination were found during this. investigation. A report titled Su=ary of Investigative Activities dated April 10, 1990, was published detailing the results of this investigation. Additional subsurface soil .investigative activity was performed in March, 1991, in the southeast (identified as Area A) and the northeast (identified as Area B) corners of the subject site. Fifty soil borings were excavated on 20 foot centers at the site; 20 borings in Area A and 30 borings in Area B (please see Figure 2, Boring Location Map). Subsurface soil contamination was found in three borings from Area A. No indications of soil contamination were found in the boring in Area B. A report titled Sumaary Report of W SJ N S F— LEGEND • 8-27 GRI BORNG - SAMPLE ANALYZED O B-60 GR1 BMNG ® GRf BORING IN PLANTER. MARCK I M APPRQX. SrN OF FORMER Lii GAS STA.'BLDG. G xZ I W J 4 7-1 B 3 E-S, 0 0 • 0 0 E-L FrZ E-30 O r O-_ _- • O t � B-18 E-1a 5-71 O 0 -0 • O o O AREA B ,--AREA A 0 0 o OsT, E w a-tt} QE � i B-tq O o 4 �B0 • O O O • OLNE AVENUE b12TY KOc.F- BORING LOCATION MAP 51297 1 1 0AIt: JANUARY,19% I FIGURE: 2 January 12, 1995 Page 3 Preliminary Subsurface Investigation dated October 4, 1991, was published detailing the investigation and findings. Based on the findings of the investigations described 'above, GRI proposed on September 25, 1992, to install 5 ground water monitoring wells and 8 soil vapor extraction wells in the southeast corner of the site (Area A, the northwest corner of Main Street and Olive Avenue) to initiate remediation of contaminated soils and ground water associated with the former service station operations. A proposal and scope of work was submitted to Mr. Stephen Kohler, City of Huntington Beach, on May 31 1993. • At this time, other environmental consultants conducted supplementary investigations regarding the contamination problem at the northwest corner of olive and Main and submitted documents including the following: a site assessment workplan by Economy Environmental.. Inc. (7/10/92); a Phase I1 environmental site assessment by Groundwater Technology (1/3/94); and a summary of soil and water investigations by McLaren/Hart Environmental Engineering i Corporation (4/21/94). Economy Environmental's scope of work was limited to soil contamination within the right-of-way of an olive Avenue widening, proj ect. Activities performed by t Groundwater Technology included the installation of 3 ground i z7anuary 12, 1996 Page 4 water wells at the former service station site. Ground water was determined to be at a depth of 33 feet below the ground surface. MW-2, which was installed near to the former locations of the USTs, contained the only detectable concentrations of contaminants in soil and ground water samples. A ground penetrating radar study performed by McLaren/Hart found a buried hoist and a waste oil sump in the western portion of the former service station site. A cone penetration test of subsurface conditions, also performed by McLaren/Hart, further delineated the extent of soil and ground water contamination. Soil borings and ground water well locations from all of the investigations are shown on Figure 2A.. The approximate limits of soil and ground water contamination, as defined by the data collected from the previous site characterization activity, are showTi on Figure 3, Approximate Limits of Contamination. 3.0 PROPOSED GROUND WATER MONITORING WELLS 3.1 Ground water Well Installation The subsurface investigative activity conducted at the site has defined -the limits of ground water and subsurface soil contamination. In order to provide for quarterly monitoring of the ground water contamination plume, additional ground water wells will need to be t installed south and east of well MW-2. This gill ensure e 0 'M, i 1 G R I DATE: JANUARY, 1996 0 BORING LOCATION MAP PROJECT: 51297 0 FIGURE: 2A r iVGR LIlv M OF CONTAMINATION L: PROJECT: FIGURE: ARY,1"6 1 51297 1 3 I Jai!uary 12, 1996 Page 5 that there are "clean" ground water monitoring wells surrounding the ground water contamination plume needed to provide ground water quality monitoring data : throughout the renediation project. GRI proposes 'to install two offsite ground water monitoring wells, MW-4 and MW-5, at the locations shown on Figure 4, Proposed Well Location Map. Required well permits for the proposed ground water monitoring wells will be obtained from the Orange County Health Care Agency prior to well installation. The proposed ground water wells will be installed in a 10-inch diameter, mechanically drilled boring using hollow stem, continuous flight augers. A C-57 licensed .well driller will be subcontracted for the well installation. Ground water well borings will be drilled to a depth of approximately 53 feet bcg, approximately 20 feet below the soil/Water interface or to a depth where- at least 5 feet of competent clay is encountered to reduce the possibility of penetrating an aquiclude. The augers will be decontaminated by steam -washing prior to drilling each boring to reduce the possibility of cross contamination. ' I i $'E1L NCNrMRNG WELL ,E/YAPOR E7(IR MON WMI O' S0' 8 PROPOSED WELL LOCATION MAP DATE: PROJECT: PROJECT: FIGURE: JANUARY,1"6 51297 51297 January 12, 1996 .gage 6 Relatively undisturbed soil samples will be collected from each boring at 5 foot intervals beginning at 5 feet bcg using a modified California split spoon sampler : fitted with three, 2-inch by 6-inch brass -sample sleeves. Prior to each sampling, the sampler will be decontaminated by washing with a non --phosphate Alconox soap solution, rinsing twice with tap water and a final rinse with distilled water. Hollow stem auger and sample equipment decontamination water will be contained in labeled, 55-gallon drums pending laboratory analyses to determine proper disposal. The middle sample sleeve will be retained from each sampling interval, sealed with Teflon patches and plastic end caps at both ends, labeled, placed in a cooler with Blue Ice and transported to a State of California certified laboratory under strict Chain -of -Custody protocol for laboratory analyses. Details of the proposed laboratory program are presented in Section 3.5.1 of this report. The remaining two sample rings will be used for field screening and- soil classification according to the Unified Soil Classification System (USCS). Field screening, -consisting of observation of soil samples for stains caused by chemical contamination and measurement • of emissions of volatile organic compounds with a January 12, 2996 Page 7 portable organic Vapor Analyzer (OVA), will be recorded on field boring logs. Finalized boring logs will be ' included in the summary report. Well boring soil cuttings and waste samples will be contained in labeled, 55-gallon drums pending laboratory analyses to determine proper disposal. Following the completion of drilling and sampling, the borings will be converted to ground water monitoring wells by installing well screen and blank casing. Four - inch I.D. by 0.020-inch slot, PVC schedule 40 well screen will be installed from the bottom of each boring to approximately 10 feet above the ecountered ground water level. The well will be completed with 4-inch I.D., PVC schedule 40 blank casing installed from the top of the well screen to ground surface. The annular spaces between the well casing and borehole will be filled with Monterey $3 sand from the bottom of each boring to a depth of approximately 3 feet above the screen/casing .interface. A bentonite seal of at least 3 feet thick will be c installed on top of the sand. The remaining annular spaces will be filled with bentonite/cement grout from top of the bentonite seal to approximately 1 foot bcg. A traffic rated, metal well box will be installed flush with the ground surface and each well will be -fitted with January 12, 1996 Page 8 i a locking cap. Construction details of the proposed ground water wells are shcwn on Figure 5, Ground water Well Schematic. 3.2 Well Development The ground water wells will be developed immediately following installation to improve hydraulic communication between the geologic formation and, the well. Well development will consist of surge blocking the well and : removing a minimum of three casing volumes of ground water using a'3.5--inch O.D., stainless steel bailer • mounted on the drill rig. Prior to developing each well, the bailer will be decontaminated in the' same manner as decontamination of sampler to reduce the possibility of cross contamination. The removed ground water will be contained in labeled, 55-gallon drums laboratory analyses to determine proper disposal. 3.3 Well Survey After waiting a minimum of 72 hours following well a installation to allow for equilibration, the installed ground water wells will be surveyed. A surveyor's level, rod and measuring tape, along with a water and a gasoline gauging paste,• will be used to determine ground water s elevation and thickness of separate phase hydrocarbons d N GR 51297 TRAFFIC RATED WELL BOX BENTONITE SEAL 4" LD. PVC SCH 40 WELL CASLNG DENDMI 2' BENTONTiE PLUG N • —_ • • 4" LD. X 0.020" SLOT • • • ' • PVC SCH 40 WELL SCREEN • • — #3 MONTEREY SAND ' GROUND WATER WELL SCHEMATIC ' p ATIL." to � 3 JANUARY,19% January 12, 1996 Page 9 (free product), if it exists, in each well. The results of the well survey will be used to confirm the. direction of local ground water flow beneath the site. 3.4 Ground Water Well Purging and Sampling Following the well survey, all ground water wells not containing free product will be purged and sampled. Ground water well purging will consist of removing a minimum of three (3) casing volumes of ground water from each well using a 3.5-inch O.D., PVC bailer. The removed well purge water Will be contained in labeled 55-gallon drums in the same manner as well development water. The bailer will be decontaminated prior to purging each ground water well using the same procedure as described earlier. The parameters of temperature, electroconductivity and pH will be measured after the removal of 0.0, 1.5, 2.00 2.50 and 3.0 casing volumes of ground water. Between the removal of 2.5 and 3.0 casing volumes of ground water, the temperature, electroconductivity and pH will be evaluated to determine if equilibrium ' has been established. Variation between these two sets of readings of less than 1A degree Centigrade (1.8 degree Fahrenheit) for 'the temperature, +/- 10% for the January .12, 1996 Page 10 electroconductivity and 0.2 pH units will be considered as equilibrated. If these parameters are not met, an additional 0.5 casing volume of water will be removed and the evaluation repeated. E Following purging and after the wells have recharged to 80 percent or more of their static conditions, ground water samples will be collected. Ground water samples will be collected from each well using a decontaminated, 1.5 inch O.D. stainless steel bailer. Decontamination will be conducted in the same manner as described above prior to sampling each well. For each water well, bailed ground water wi32 be carefully filled into two (2) 40 ml glass vials so as to leave no head space. The sample vials will then be labeled, placed in a cooler with "Slue Ice", and transported to•a State of California certified laboratory under strict Chain -of -Custody protocol for analysis. Details of the proposed laboratory testing program are presented in the following section. 3.5 Laboratory Testing 3.5.1 Soil Samples i • Selected soil samples collected from each boring will be analyzed for Volatile Fuel Hydrocarbons (VFH) by Cal DHS Method 8015 M. (gasoline) and for a January 12, 1996 Page 11 Volatile Aromatics, Benzene, Toluene, Ethyl -benzene and Xylenes (BTEX), by EPA Method 8020. The results of these analyses will be utilized to determine if • significant indications of hydrocarbon contamination are present at these locations. If elevated hydrocarbon concentrations are found in the tested soil samples, additional soil borings and sampling will be required to fully document the limits of soil contamination. 3.5.2 Ground Water Samples All collected water samples will be analyzed for VFH using Cal DHS Method 8015 M.(gasoline) and for BTEX using EPA Method 602. The.results of these analyses will be used to determine the limits of ground water contamination at the site. If elevated hydrocarbon concentrations are found in wells W-4 through W-6, additional water wells and ground water. sampling -will be required to fully document the limits of ground water contamination. 3.6 Disposal of Generated Wastes j soil boring cuttings, decontamination water, and ground F water :removed during well development and well purging will be retained in•55-gallon drums and stored at the January 12, 1996 Page 12 site for a maximum of 90 days pending laboratory test results for proper disposal. After review of the soil and ground water sample analyses,. the solid and liquid waste will be profiled and removed to a licensed facility by a licensed contractor for disposal or recycling. Appropriate manifest'docunentation will be presented in the summary report. 4.0 PROPOSED AIR SPARGE AND VAPOR EXTRACTION WELL INSTALLATION It is GRI's opinion that the most efficient and effective method of mitigating the subsurface soil and ground water contamination will be to use air sparging/soil vapor extraction and treatment. This assessment is based on the defined limits and concentrations of the subsurface soil and ground water contamination plumes and GRI's experience with the remediation of subsurface soil and ground water petroleum hydrocarbon .contamination in the downtown Huntington Beach area. In order to determine the feasibility of mitigation using air sparging and soil vapor extraction, GRI recommends that a pilot test be conducted. An air sparge/soil vapor ..extraction pilot test will determine if this method will be i effective and provide data needed to set the treatment system design parameters. E . arllary 12, 1996 Page 13 In order to conduct the pilot test, GRI proposes to install one dual air sparge/soil vapor extraction well and three soil vapor monitoring/extraction wells at the site. The proposed locations of these wells are shown on Figure 4, Proposed Well Location Map. 4.1 Dual Air Sparge/Vapor Well Installation The proposed dual air sparge/vapor extraction well will be installed in a 10-inch diameter, mechanically drilled boring using hollow stem, continuous flight augers. These wells will be installed by the same driller subcontracted for the proposed ground water' well installation. The well boring will be drilled to a depth of approximately 45 feet bcg, approximately 10 feet below the ground water level in order to provide a sufficient zone of aeration below the water table. The augers will be decontaminated by steam -washing prior to drilling the boring to reduce the possibility of cross contamination. Due to the proximity of the boring to well MW-2, no soil samples will be collected for laboratory analyses. Soil sample analytical data collected during the installation of well MW-2 should be representative of the: soils encountered during the installation of the air sparge well. January 12, 1996 Page 14 • Following the completion of drilling, the boring will be converted to a dual air sparge/soil vapor extraction ! well. A one foot section of 1.5-inch I.D. by 0.020-inch + slot, PVC schedule 40 well screen will be installed approximately one foot from the bottom of the boring. The remainder of the well will be completed with 1.5-inch I.D., PVC schedule 40 blank casing installed from the top of the well screen to ground surface. The annular space between.the air sparge well screen and the borehole will be filled with Monterey #3 sand.fron the bottom of the boring to a depth of approximately 3 feet above (42 feet bcg) the screen/casing interface. A bentonite seal will be installed from 42 feet bcg to 25 feet bcg. A soil vapor extraction well will be installed from 25 feet bcg to ground surface in the same borehole as the air sparge well. The soil vapor well will consist of 2- inch I.D. by 0.020-inch slot, PVC schedule 40 well screen installed from 25 feet bcg to 10 feet bcg. The remainder of the well will consist of 2-inch I.D., PVC schedule 40 well casing from 10 feet bcg to ground surface. The annular space between the soil vapor well casing and the borehole will be filled.with Monterey f3 sand -from 25 t feet bcg to 8 feet bcg. From 8 feet bcg to approximately 1 foot bcg the annulus will be filled''with bentonite e January 12, 1996 Page 15 grout. A traffic rated, 'metal well box will be installed flush with the ground surface to secure each well. A schematic showing. the construction details of the proposed dual air sparge/vapor extraction well` is presented as Figure 6. 4.2 Soil Vapor Well Installation GRI proposes to install three soil vapor wells for the purpose of soil vapor monitoring and extraction. Proposed soil vapor well locations are shown on Figure 4. The proposed soil vapor wells will be installed in an $- inch diameter, mechanically drilled boring using hollow stem, continuous flight augers. These wells will be installed during the installation of the proposed ground water and dual air sparge/vapor extraction well. Soil vapor well borings will be, drilled to a depth of approximately 25 feet bcg. The augers will be decontaminated by steam -washing prior to drilling each boring to reduce the possibility of cross contamination. Relatively undisturbed soil samples will be collected from each boring at•5 foot intervals beginning at 5 feet bcg using a modified California split spoon sampler fitted with three, 2-inch by 6-inch brass sample sleeves. Prior to each sampling, the sampler will be Z% !V rn d TRAFFIC RATED WELL Box KNDEW 2' BEN''TON.TTE PLUG 2" LD. PVC SCH 40 WELL CASWG 2" LD. X 0.020" SLOT r •. ---• PVC SCH 40 WELL SCREEN #3 MONTEREY SAND MENDMI 2' BENTONTTE PLUG 1.5" LD. PVC SCH 40 WELL CASLNG BENTONTtE SEAL i ' • • '" ' #3 MONTEREY SAND • M• 1.5" LD. X 0.020" SLOT i PVC SCH 40 WELL SCREEN G R DUAL AIR SPARGFNAPOR WELL SCHEMATIC i jag m 4.: 51297 SATs : JANIIARY,19%. 1 I . 6 i . January 12, 1996 Page 16 decontaminated by washing with a. non -phosphate Alconox soap solution, rinsing twice with tap water and a final - rinse with distilled water. Hallow stem auger and sample equipment decontamination water will 'be contained in' labeled, 55-gallon drums pending laboratory analyses to : determine proper disposal. The middle sample sleeve will be retained from each sampling interval, sealed with Teflon patches and plastic ' end caps at both ends, labeled, placed in a cooler with Blue Ice and transported to a State of California certified 'laboratory under strict Chain -of -Custody protocol for laboratory analyses. Selected soil samples will be analyzed at a State of California certified • laboratory 'in order to supplement data collected during previous investigations and to verify the wells location in the soil contamination plume. Details of the proposed laboratory program -were presented earlier in Section 3.5.1'of this report. The remaining two sample rings will be used for field screening and soil classification according to the Unified -Soil Classification System (USCS). Field --screening, consisting of observation of soil samples for stains caused by chemical contamination t and measurement of emissions of volatile organic compounds with a portable• Organic Vapor Analyzer (OVA), January 12, 1996 Page 17 will be recorded on field boring logs. Finalized boring logs will be included in the summary report. Well boring soil cuttings and waste samples will be contained in labeled, 55-gallon drums pending laboratory analyses to determine proper disposal. Following the completion of drilling and sampling, the borings will be converted to soil vapor wells. The soil vapor wells will consist Two-inch I.D. by 0.020-inch slot, PVC schedule 40 well screen which gill be installed from the bottom of each boring to 10 feet bcg. The remainder of the well will be completed with 2--inch I.D., PVC schedule 40 blank casing installed from the top of the well screen to ground surface. The annular space between the -well screen and borehole will be filled with Monterey 13 sand from the bottom of each boring to a depth of .approximately 2 feet above the screen/casing interface. A bentonite Neal will be installed from 8 feet bcg to approximately 2 feet bcg. The well heads will be completed with steel, traffic rated well boxes and well caps. A schematic showing the construction details of the propsed soil vapor wells is presented as i Figure 7.: TRAFFIC RATED %TLL BOX "BEIv'TONM SEAL 2" I.D. PVC SCII 40 NVELL CASUM MINMIUM 2' BENTONI'IPLUG #3 MON'TER$Y SAND 2" I.D. X 0.020" SLOT PVC SCH 40'%TLL SCREEN G R j VAPOR WELL SCE EMATIC PO T It: JANUARY,1"6 January 12, 1996 Page 18 5.0 PROPOSED AIR SPARGELVAPOR EXTRACTION PILOT TEST In order to verify the feasibility of utilizing air sparging and soil vapor extraction to mitigate the subsurface soil and ground water contamination, GRI recommends thatia pilot test will be conducted. Data collected during the pilot test will also determine the treatment system design parameters needed to install the most effective and efficient treatment system at the site. 5.1 Soil Vapor Extraction Pilot Testincr Procedure 1 GRI will cbtain a portable soil vapor extraction/internal combustion treatment system for use during the pilot study. GRI will ensure that the selected treatment system is properly permitted with the South Coast Air Quality Management District (SCAQMD). one soil vapor well will be selected for extraction testing and the remaining vapor wells will be used for monitoring. The test well will be plumbed via flexible piping and connected to the vapor extraction unit. The surrounding monitoring wells will be plumbed with a fitting enabling the connection of a Dwyer Minihelic Differential Pressure Gauge (Minihelic). This will be used to detect any influenced vacuum caused by the test well. A water U-Tube manometer will be used to measure i i I January 12, 1996 Page 19 influenced vacuum beyond the range of the ninihelic gauge. . A Gastech portable organic Vapor Analyzer (OVA) - will be used to measure the influent soil vapor Volatile organic Compound .(VOC) concentration and SVE system ` effluent VOC concentration. The SVE system will be started and tested to ensure proper operation. After connection of the test well to the SVE system and installation of the guages on the monitoring wells is completed, the SVE-system will be started and the test will begin. Each vapor well will be tested individually using the following procedure: - Start SVE system and gradually apply vacuum to the test well until an equilibrium is reached; - Operate SVE system for two (2) hours and monitor the following parameters every fifteen (15) minutes: o Influent soil vapor Volatile organic Compound (VOC) concentration, i o SVE system effluent VOC concentration, o Soil vapor extraction flow rate,' o Test well vacuum, o Monitoring well vacuum, ' o SVE system process pressure, o SVE system process temperature, - Collect influent soil vapor sample after two (2) hours; - Repeat test at next vapor well. a I January 12,•199b Page 20 i During the testing procedure; preliminary data analysis will be performed in the following manner: o If consistent or increasing influent VOC concentrations are measured with the OVA, the SVE system will be said to be extracting contaminated soil vapor; and o If a reduced vapor pressure is recorded at a monitoring location, that well will be considered to be within the radius of influence of the well under test. Further data evaluation will be performed after all field data is collected to allow the graphic representation of the estimated radius of influence for each well. If neither of the above conditions is met within one (1) hour, the test will be discontinued and the procedure will be repeated on the next•well. If none of the vapor wells respond within one hour, the original test well will be reconnected and -the test period will be extended to five (5) hours. If no response in influent VOC e concentration is. noticed in the vapor wells after the conducting the extended•test, other remediation options will be .explored including excavation and risk assessment. 5.2 Air_Sparge Pilot•Test Procedure After the completion of the soil vapor extraction pilot test, GRI will conduct the air sparge pilot test. During y the air sparge pilot test, GRI will monitor the r i January 12, 2995 Page 21 soil vapor wells and ground water wells surrounding the air sparge/vapor extraction test well to determine. the radius of influence of .the air sparge well. -This ` -monitoring will also be used to determine if air sparging will result in undesired movement of the contamination plume. The four main parameters that will be recorded in the surrounding air sparge and ground water monitoring wells are dissolved oxygen content, well head Volatile Organic Compound (VOC) concentration, well head vapor pressure, and ground water elevation. The testing procedure will be as follows: - Start soil -vapor extraction system and apply a vacuum to the vapor extraction well for thirty (30) minutes to establish a baseline for influent Volatile Organic Compound (VoCs); - Measure dissolved oxygen content in.the selected air sparge well and the surrounding air sparge and ground water wells; - Measure ground water elevation in the surrounding air 'sparge and ground water wells; - Start air sparge system after baseline VOC reading is collected and gradually apply compressed air to the selected air sparge well until equilibrium is reached; - Run -air sparge•test for three hours and monitor the following parameters every fifteen (15) minutes: o Soil vapor extraction well vacuum, o Soil vapor extraction flow rate, o AbF sparge flow rate, o Air sparge pressure, N January 12, 1996 Page 22 o Air sparge temperature, o Soil vapor extraction system influent VOC concentration, o VOC concentraticn in idle air sparge/vapor extraction wells and surrounding ground water wells, o Dissolved oxygen concentration in idle air sparge wells and surrounding ground water wells, o Vapor .pressure in idle air sparge/vapor extraction wells and surrounding water wells. - Repeat test at next air sparge well. A minimum of 72 hours after the test is completed, the : air sparge well will be•retested at a different air supply pressure. Data collected from the pilot test will be used to determine the overall effectiveness of air sparging in removing hydrocarbon contamination from the ground water and to determine the radius of influence of the air sparge.wells. The radius of influence of the air sparge wells will be determined based on the increase in dissolved oxygen concentration and increased vapor pressure in the surrounding ground water wells monitored during the test. 1 6.0 REPORT PREPARATION Following completion of the proposed activities described in this Proposed Work Plan,. GRI will prepare and submit a u d January 12, 1996 Page 23 summary report. This report will include a summary of all laboratory data, pilot testing data, and recommendations for the next phase of environmental activity at the subject site. Based on the results of the air sparge/soil vapor extraction pilot study, a Proposed Remedial Action Plan will be prepared and submitted as a portion'of the recommendations section of the summary report. 7.0 LIMITATIONS This reportwas prepared using a degree of care and skill ordinarily exercised, under similar circumstances, by reputable Soil Engineers, Geologists, and Environmental Scientists practicing in this or similar localities. No other warranty, expressed or implied, is made as to the conclusions and professional advice included in this report. The opportunity to be of service is appreciated. If you have any questions, please call Andrew Zikeli at 714--573-0435. Very truly youx GeoRemedip,tion, Cary T. ,earlin Senior Environmental Geologist R. E. A. 3403 zhcl&�- wa T. Project Environmental Chemist R. E. A. 3404 awes R. Senior Enc R. C. E. Andrew Z eli Staff Engineer ATTACHMENT NO.9 OLS13 UVESI&GOI: to : P. • • • RECORDING REQUESTED BY: ) AND WHEN RECORDED MAIL TO: ) (Space above for Recorder's Use) This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By: Its: Dated: 19 A. On or about _ _ _ _ _ , the Redevelopment Agency of the City of Huntington Beach, a public body, corporate and politic, hereinafter referred to as "Agency," entered into an Amended and Restated Disposition and Development Agreement (the "Agreement') with JT Development Company, LLC, a California limited liability company (the "Developer"), which Agreement provides for the acquisition, disposition, and development of certain real property (the "Site") situated in the City of Huntington Beach, California, and more particularly described on Exhibit "A7 attached hereto and made a part hereof by this reference. As required in the Agreement and as referenced in the Grant Deed, the Agency shall furnish the Developer with a 1379.05 0010634MI 11AR96 (2) Certificate of Completion upon completion of construction, which Certificate shall be in such form as to permit;t to be recorded in the Recorder's Office of Orange County. B. The Agency has conclusively determined that the construction on the Site described hereinabove required by the Agreement and the Grant Deed (the "Construction") has been satisfactorily completed. NOW, THEREFORE, the parties hereto certify as follows: 1. As provided in the Agreement, the Agency does hereby certify that the Construction has been fully and satisfactorily performed and completed in compliance with the Agreement and the Grant Deed. 2. The conditions upon Developer and all obligations of Developer under the Agreement are discharged, except as set forth in the Agreement. 3. Nothing contained in this instrumcnt shall modify in any other way any other provisions of the Grant Deed executed and recorded pursuant to the Agreement. 4. After recordation of this Certificate of Completion, any person or entity then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the Property will not (because of such ownership, purchase, lease, or acquisition) incur any obligation or liability under the Agreement, except that such party shall be bound by any and all of the covenants, conditions, and restrictions of the Grant Deed or the Agreement which expressly sunzve such recordation. 5. This Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the improvements to the Property, nor any part thereof. This Certificate of Completion is not a notice of completion referred to in Section 3093 of the California Civil Code. 6. The Recitals above are incorporated in full as part of the substantive text of this Certificate of Completion. IN WITNESS WHEREOF, the Agency has executed this certificate this day of 19 THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By: Executive Director 1379.05 001053-0001 11/14M 0 ATTEST: Secretary Developer hereby consents to the recording of this Certificate of Completion. JT DEVELOPMENT COMPANY, LLC, a California limited liability company John Tillotson By: John Tsai By: Mike Roberts 1379.05 001063-Ml 1111,W6 (4) STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of , 199_, before me, the undersigned, a Notary Public in and for said State, appeared personally ]mown to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the Executive Director of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Notary Public (SEAL) STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On , , before me, the undersigned, a Notary Public in and for said State, personally appeared , personally ]mown to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public 1379.05 001063.0001 11/14/96 (5) STATE OF CALIFORNIA ) )Ss. COUNTY OF ORANGE ) On before me, the undersigned, a Notary Public in and for said State, personally appeared _ _ , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE. ) - On , before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the -'within instrument m the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. W MSS my hand and official seal. Signature of Notary Public 1379.05 0010634 001 111106 (6) EXHIBIT A 1379.05 001063-DWI ] 1/14196 l7) ATTACILMENT NO. 10 1379.05 001063-Ml 1111416 ( 1) ORANG-E COAST Ti -L_E COMPANY 640 Forth 'IL'�'`..in Avenue Santa Ana, Califormia 92705 (714) 558-2836 - ar& gy 61. r •4 dp-,42!;�qq t4 NEW=13 DE<I RM?r 2800 La Fayette Ave. Newport Beach, Ca 92663 Date: ,Augu t 5, 1991 Attention: Jci&..n Newo=b Your No. Order No. 168013-5 Dated as of July 31, 1991 at 7:30 A.M. In respmse to the above referenced a=licaticn for a policy of title i.rmm-m-ona, Orange Coast Title CcArpeny hereby reports that it is prepared to issue, or cause to to issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien or enambrance not shorn or refe--red to as an Ea:oe-ticn below or not excluded fz = cavezase pursuant to the printed Schedules, Conditions and Stipulations of said policy for. M e printed Exceptions and Exclusions from the c: uerage of said Policy or Policies are set forth in Schedule 1 and Schedule 1 (=ntimzed) attached. Copies of "the 'Policy fors should be read. Vey are available fr= -the office which issued this report. Mus report (and any supplments or amerxhv s hereto) is issued solely for the purpese of facilitating the issuance of a policy of title insurance and ro liability is assured hereby. If it is desired that liability be assz-"~ed prior to the issuance of a policy of title insurance, a Hinder or Ccmitient should be SJSIE JACCBSFN Title officar M:e form of policy of title insurance =nt=plated by this report is: A Clt-a Standard Caverage - 1990, Mrkr's Policy. T ie estate or interest in the land hereinafter described or referred to covered by this Report is : A Fee. Title to said estate or interest at the date hereof is vested in: SM FXH= "N' attached. Order No. 168013-5 I;K,4!1114ztv JAMM E. FOLTIM ard JMN 10MR, husband and wife as joint te_-pants, as to an m-4ivided me -half int+errest and iAUM M. GJAR3. U, a carried van as his sole and separate p=cPe'tY, as to an undivided ore -half interest, as tenants in c=. cn as to Parcels I & II. CITY OF $EA=i, a Mmicipal Corporaticn, as to Parcels III, V, VI, 7,3I, IX, X, XI, XII, X=' I-UnMt= EMCH REMVEL RMC AGNCZ, a Public body -corporate and politic, as to Parcel IV. aXIIM WUM IV= and JOAN MLZEIt, husband and wife, as to Parcel VIII. B Order No. 168013-5 71he land re.fezzed to in this Report is situated in t`4 State of California, Comty of Orarxge and is described as follcws: Parce? I: Lcts 1 and 3 in BlocJc 304 of Flmtirrtcn Beach, in the City of Huntingt^n Beach, as per rap recot-ded in Bxk 3, Page 36, of Misc:ellaneocs Maw, in the office of the County Reorder of said County. EXCEPT TF� i all oil, gas, rdr�rals and other hydrvcarbcn substances lying below a depth of 500 feet without any right to enter upon the surface or the subsurface of said land above a depth of 500 feet, as provided in instr=erts of rewrd. Fa-tval II: lots 2, 4, 6 and 8 in Block 304 of F3mtin tcn -Beach Tract in the City of Beach, as shown on a rap recorded in Bonk 3, Fare 36, of Miscellaner_:s Maps, in the office of the Camty Rkx=rder of said Canty. Except the Nortives-terly 10 feet of said Lots as cm-e-by the City of F?L'.ntir�wn Beach by final Decree recorded December 3, 1923, in Book 500, Page 278 of Deeds, reords of said Orange Comfy. E X,,= 7HEREFPCM all oil, gas, mirze_rals rand other hydrocar ion substances lying below a depth of 500 feet without any right to enter upon the surface or the v.A*ur facce of said land move a depth of 500 feet, as provided in instnments of reccrd. Parcel III : Lot 5 and the SatthweJterly 8 imhes of Lot 7, Block 304 of the HLmtirgtcn Beach Tract, in the City of FAmtingtcn Beach, as per map thexreof recorded in Bock 3, Page 36 of Misoellaneous Maps, records of Orarge, City, California. Order No. 163013-5 E{CEPT 'I��i all oil, gas, minerls and ct:her Irydrocarbcn sibstances lying below a depth of 500 feet witl�.�t any right to enter upon the surface or the subsurface of said larri above a depth of 500 feet, as provided is %ns'st - s of record. Pahl IV: Lot 7 in Block 304 of K. =Unrcn Beacon, in the City of Wntingtcn Beach, as per map recorded in Bock 3, Page 36 of Miscellanea;s Maps, records of Orange cumty, California. E=epting the Sc t.4r es4terly a in=hes. EXCEPT 21 EMM24 all oil, gas, minerals and other hydr�*bcn st:bE-:,tances lying belay a depth of 500 feet without any riot to enter upon the surface -or the subt-= acre of said land above a depth of 500 feet, as provided in irzstru rmr t of re-rd. Parcel V : Lot 9 in Block 304 of Huntingtcn Beach, in the City of hhattirgtcn Benda, as per rap rec--zzed in Book 3, Page 36 of Miscellaneous Mans, records of Orange County, California. EXCEPT all oil, gas, minerals and other hydnxarbcn substarces lying belcw a depth of 500 feet without any right to enter L�rl the surface or the subr.x-face of -said land above a depth of Boo feet, as provided in instruments of record. Parcel VI: Lot 10 in Block 304 of the Huntingtrnn Bea&. Tract, in the City of i:tmtirgtcn Beach, as per map recor'=4 in Book 3, Page 36, of FUSCellaneals Maps, in the office of the Ccuxtty Re=rder of said County. apt the rcrtt1Y mstF rly 10 feet of said Lot as rx;ared by the City of R=tirgt---n Beach by final de=ee recorded Decmnber 1, 1923, in Book 500 Page 278 of Deeds, records of said orange County. EXCEPT MMMnr.M all oil, gas, minerals and otter hydr=arbon substances lying below a depth of 500 feet without"any right to enter Won the surface ar the subaurface of said land above a depth of 500 feet, as provided in instnments of record. Parcel VII: lots 11 and 13 in Block 304 of ISMntingtm BeaCh", in the City -Of ' Beach, as per Trap recordEd in Book 3, Page 36 of Miscellarxx= Maps, records Of orange Cozy, California. EXCEPMONS MIrZ'U—rl:)...PAGE 3 Crder No. 168013-5 I:X r TVz-YZFFM all oil, Tds, rare_mis and other hye on substarces lying below a depth of 500 feet withait any right to emer 1;= the msface or the ambs'LTface cf said land above a'depth of 500 feat, as provided in inist-rents of recori. Parcel VIII: Lots 12 and 14 in Block 304 of I3mtingtcn Beach Tract, in the City of ilmtingtan Beach., as per rap rexryed in Book 3, Page 36, of F.ixeZ].aneous Maps, in the office of the County Recorder of said Canty. Except the Northwesi..erly 10 feet of said Lots as cmdered, by the City of F:Lnitin ton Heath by final decrees recorded Deco-ber 1, 1923, Book 500 Page 278 of Deeds, records. of said Orange City. EXCEPT MERURCM all oil, gas, minerals and crher hj�xn stiff ,.anoes lying belcca a depth of 500 feet without any right to enter upon the surface or t.'•.e subsurface of said land above a depth of 500 feet, as provided in nstr=pnts of . record. _ Parcel LAC: Lot_. 16 & 18 in Block 304 of Huntington Beach, in the City of H=tingten Eeach , as per crap recorded in Book 3, Page 36 of Ilascellanecus Daps, records of Orange Cct r:ty, California. Except the Northwesterly 10 feet of said Icts as c=dm- d by the City of Beach by final decrees recorded Decerbe= 1, 1923, Book 500 Page 278 of Deeds, records of said orange Canty. ' ECC:FI' INEREFFM all oil, r-as., mirw-rai s and Other hyd--=nt ort Suhstanims lying below a depth of 500 feet without any right to enter anon the surface or the su.r.�r`ace of said land above a depth of 500 feet, as provided in inst-x=Y-mts of record. Parcel X: Lcts 15 & 17 in Bloch 304 of Huntimrtcn Beach, in the City of nsntingtcn Beach, as sham on a :rap thereof recorded in Soak 3, Page 36, of Miscellaneous Maps, records of said orange Canty. EXCZFT ==-PCrd all oil, gas, minerals and other hydr=aztm substances lying .below a depth of 500 feet withmtt any right to enter upon the surface or the subst=f1ace of said land above a depth of 500 feet, as provided in instrurents of reaartl. Parcel XI: Lots 19, 21, 23, 25 and 27 in Block 304 Hantirqton Beach, in the City of Y.x=ington Beach, as shown on a map thereof reaxded in Book 3, Pace 36, of Miscellamumm Mr-s, in the office of the Comfy Recorder of said Cvvnty. EXCIGNS CXXI' A=... PAGE 4 orde.- 1;0. 168013-5 EC= THMEFMM all oil, gas, minerals and a'.har i:Ytrocarbon substances lying below a depth of 500 feet without any right to enter upon the surface or the sub==face of said land above a depth' of 500 feet, as provided in ins rrents of re--rd. Icts 20, 22, 24, 26 in Block 304 F=tbxjtcn Beach, in the City of Beach, as shorn • cn a map recorded in Book 3, Page 36, of Mi soellanecus Maps, records of Orauyge County, California. E=-, t the Nor`Inwes-I erly 10 feet of said Lots as ccrrlemned by the City of F:unt= ton Beach by final Dew recorded Decerber 8, 1923, in Book 500, Page 278 of Deeds, records of said Orange County. EXCEPT 11MMM all oil, gas, minerals and other hydrocarbon substances lying below a depth of 500 feet without any right to enter upon the surface cr the sub=rface of said land above a depth of 500 feet, as Frtvided in in trtrents of . record. Parcel XIII: At the date hereof exceptions to coverage in addition to the dons and Exclusions in said policy fora would be as fal,cws: Lot 28 in Block 304 of Euntirxiton Beach, in the City of Huntington Beach, as per map thereof recorded in Book 3, Page 36, of Miscallaneais Maps, records of said Orange Ccur7ty. Except the Northtwesterly 10 feet of said Icts as condemnied by the City of Ruptitx;ton Beach by final Decree recorded Decerber 3, 1923, in Book 500, Page 278 of Deeds, recor''s of said Orange County. EXCEPT 7MUEFFQ all oil, gas, rime a? s and other hydx=rbcn st ..antes lying beloc: a depth of ' 500 feet without any right to enter upon the surface or the svbsT.wface of said land above a depth of 500 feet, as provided in of record. A. General and Special Taxes for the fiscal year 1991-3992. A lien not yet payable. B. The following taxies have all been paid and are resorted ,for proration des only. General and Special Taxes for the fiscal year 1990-1991. • Total -Amount $2,4C9.84, Fist LnstaUmerrt $1,204.92, Second " $1,204.92. Cooke Area 04-035, Assessors Parcel No. 024-143-12. FxmTticn acne. ' MC EMCNS CDt iZVM... PACE 5 OzI�+er 1.10. 168013-3 C. The following taxes have all been paid and are reported for proration pines only. Oral and Special T • for the fiscal year 1990-1991. Total Axxmt $5,874.74, First Installnert $2,937.37, Second Irstalloezt $2,937.37. Code Area 04-035, Assessors Parcel No. 024-143-17. Exe:?:ticn None. D. The following taxes have all been paid and are reported for proration pUrposes only. General and Special Taxes for the fiscal year 1990-1991. Total Amcunt $60.30, First Ins`.allment $30.15, Second $30.3-5. Code Area 04-035, Assessors parcel No. 024-143-11. pticn None. E. The following' taxes have all been paid and axe reported for proration pizrpCses only. General and Special Taxes for the fiscal year 1990-1991. Total Arn mt $120.24, First Irv^-4a11ment $60.12, Secatd Installment $120.24. Code Area 04-035, Assessors Parcel No. 024-143-10. E m pticn Ncne. F. Tlhe following taxes have all been paid and are reported far proration P=p ses only. General and Special Taxes for the fiscal year 1990-1991. Total Aunt $101.08, First ImstailmQnt $50.54, Second Installment $50.54. 'e Area 04-035, Assessors parcel No. 024-143-19. naemptien Pione. G. The following taxes have all been paid and are reported for proration purposes only. Ge*se-r-al and Special Taxes for the fiscal year 1990-IS91. Total Aft $,90, First Imtallar t $•45, Second lnstalr*+a*:t $.45. Code Area 04-035, Assessors Parcel No. 024-143-C8. Exertion None. H. The following taxes have all beet paid and are reported for proration purposes only. General and Special Taxes for the fiscal year 1990-1991. Total A=mt $1,899.78, First Ins alim zt $949.89, Second I-c-tallm=rt $949.89. Code Area 04-035, Assessors Parcel No. 024-143-20. Exerpticn Ncne. 2. The following taxes have all been paid and are reported for proration pezrpcsas only. General and Special Taxes for the fiscal year 1990-1991. Total Am=art $.00, First $.00, Second $.00. Code Area 04-035, Assessors Parcel No. 024-143-24. E=Vtion None. J. The following taxes have all been paid and are reported for prora.ticn purposes only. Ge rara.i and Special Taxes far the fiscal year 1990-1991. Total Amomit $.00, First $.00, Second Imtai l,ncnt- $.00. Code Area 04-035, . Assessors Parcel. No. 024-143-04. Rion None. K. The following taxes have all been paid and are repor ad for proration purposes only. General • and Special Taxes for the fiscal year 1990-1991.. Total Amount $.00, First Insta3lnertt $.CO, Surd InstzZlrnent 5.00, Cede Area 04-035, Assessors Parcel No. 024-143-23. option None. L. The following taxes have all been paid and are reported for prrorticn purposes only. General and Special Taxes for the fiscal year 1990-1991. Total Arcurrt $.00, First Irstallmnt $.00, Second Installment $.00. Cade A ---ea 04-035, Assessors Parcel No. 024-143--25. Emq�ticn None. MEMCM CCNIT'riJt12... Ezx ---- 6 Order No. 168013-5 Y.. The following taxes have all bean paid and are reported for proration purposes cnly. General and Special Taxes for the fiscal year 1990-1991. Ttta]. k unt $.00, First Ins`anment S.Oo, second Installment 5.00. Cade Area 04-035, Assessors Parcel No. 024-143--01. DcOrpticn None. N. Mhe follcwi_rg taxer have all been paid and are reported for proraticn purposes cn1y. General and Special Taxes for the fiscal year 1990-1991. Total- Aramt $104.40, First Irs'.allment $52.20, Second Tnttat 1 Wee $52.20. Code Area 04--035, JLsessors Parcel No. 024-143-09. Exalption None. O. Mie lien of sipplemental taxes, if any, assessed meant to the provisions of Section 75, et sag. of the Reveme and Taxation Ccc'e of the State of California. 1. A ca-mn.mity oil and gas lease affe-._inq Vhds and other property execited by the owner of said land and by others as owners of other land in the c=tnity area, for the term and uzcn the terms, covenants and provisions therein prcvided, recorded Jamm y 5, 1985, in Book 2915, Page 287, of official Rscords. Darted: Dec amber 11, 1954. Te*m: 20 years frtm Cate tRzeof and for so long thereafter as oil and gas are pxaiuced in paying gjantities. Lessor: Rav & Irma Overacker. Lessee: Trar�ntinental oil Co. Imo., a Calif. Corp. Said lease affects that por'Uon of said. land lying below a depth of NO feet frond the surface thereof with direct: or irplied right of entry on the surface therr eof . The present ownership of said lease -hold and other ratters affecting the interest of the lessee are not &horn reein. Affes..s Ints 2, 4, 6, 8 10 and 12. 2. A c==m.ity oil and gas lease affe&irig this and other property exec , by the owner of said land and by ours as oars of other land in the ccrminity area, for the term and upon the terms, covenants and prcvisicns therein provided, recorded Jarnm y 21, 1955, in Book 1931, Page 512, of official Rec or-ds. Dated: Sertzaber 28, 1954. Te=: 20 years 'from date hereof -and for so long thereafter as oil and gas are pradmed in payuyj quantities. Lessor: E. L. & Mary Cl. Lessee: Beloil Corporation, Inc. Said lease affects Umt portion of said land lying below a depth of 500 feet from the surface thereof with direct or =plied ric .;ht of entry on the surface t'ze--eof. f EXCEMCNS CrMM7t]ED... PF1'E 7 Cyder No. 16a013-5 The present awnetsYiip of said leasehold and other flatters affecting the interest of the lessee are nct shown herein. Affects I -a s 1 and 3. 3.. A ===ty oil arxi gas -lease affecting this and cther property executed by the owner of said land and by others as Dwyer-- of other land - in the cs It area, for the t -v= and upcn the terns, cxaverzants and pnvisicrs therein provided, recorded February 25, 1955, in Book 2974, Page 169, of Official Fords. Dated: January 15, 1955. Te_-�: 2 years fz= date heraof and for so lcng thereafter as oil and gas are produced in paying quantities. Lessor: Claude & Cora Cook. Lessee: Cleveland Petrele= Carpany, a corporation. Said lease affects that por`dcn of said land lying below a depth of 500 feet f--= the surface thereof with direct or implied right of erxtzy on the sl xface thereof. n, a present owm ship of said leasehold and . other ratters affec-irq the interest of the lessee are rot &.Qwn herein. Affects Lots 14, 26, 18, 20 and 22. 4. A deed of trust to se=m an irdebte ;s of $375, 000.00, and any other wmnts payable ur4e-r the te-= thereof, recorded march 31, 1987, as 4.. No. 87-172309, of Official Records. Dated: Yzxch 12, 1987. Zrus"sr: James E. idler and Joan Koller, husband and wife as joint tearrts, as to an urdivided me -half ante.rest and lauao M. Guarano, a married man as his sole and separa to property, as to an undivided one half irr..erest, as to ox&s in c=mn TrusI,,ee: Americsn securities Carprf, a m poration. Beneficiary: Wells Fargo Bark, N. A. , a National Banking Association. An assig=rmnt of the lessor's interest wder the lease referred to given as additional security for the payment of tM Indebtedness secured by the deed of trust above mentioned, recorded Maz*t'i 31, 1987, as Instrume= No. 87- 172310 of Official Records. Executed by: James E. Ko33er and Joan Koller, husband and .wife as joint tenants, as to an undivided one-baLU ince st and Lauro M. Guarano, a married man as his sole and separate prcpe'ty, as to an undivided cm half intent, as tenants in coon. In favor of: Wells Fargo Bank, National Association. Affects lots I 2, 3, 4, 6 & S. E:C1P%CtLS MYMUM—PAGE a Order No. 16a013-5 5. A deed of trust to secure an indebtxdnk—_y of $75,000.00, and any cther amounts payable under the terms thereof, recorded Mares 15, 1977, as 1nstzu.-ent No. 19735, in Book 12104, Page 710, of Official FBoords. rated: March 7, 1977. T us`,.or: .7ahn C. Muller and Astrid T. Faller, husband and wife, Peggy Ann Cate, an = arried wcman, and Mi&zel H. Newten, a single ran. Tnistee: Real State, a Part wxship. Beneficiary: Paul N. Boos and Margaret Flame Boys, husband and wife as joint tenants. Affect's Lots 12 & 14. 6. Rights of parties in lion of said lard by reason of unrecorded leases, if any. Kindly for-wd said leases for arm w=aiaaticn. VOM: PAYOFF INFCRMMON: Note: Section 12413.1, California Insurance Code, c=r.rnly ]mown a Asse:rbly Bill 512, became effective January 1, 1990. This legislation deals with the dishursement of funds deposited with -any title antity ac',.ing in an escrw of subescrw ca acity. the law requires that all funds be dexsited and collected by the title entity's escrcw and,/or mow a==t prior to any fords. Same methods of fmx3i q ray subject fords to a holding period which must expire before any funds ray be disbursed. In order to avoid any such delays, all funding should be done thrcug1 wire tnnsfer, certified check or checks d;rwwn on California financial institutions. Note: Zhis Carpany does req re cuare.•tt Beneficiary derar s prior to cic:sirq. If the danand is expired and a carrect demand cannct be obtained, our requirements will be as follows: A. If this ca*wy accepts a verbal u;xlate on the darand, we ray hold an aunt equal to cne mrnthly mortgage payment. This hold will be tm and above the verbal hold the lender may have stipilated. B. If this cmpany cannot obtain a verbal update cn the dam, we will either pay off the, expired demand or wait for the amended demand, at the dis=etien of the escrow. Fxc=cus a:Nvm=... PA c 9 crdez' ITO. 168013-3 ,�.� � _:.� �f� i' i4 i tip:, . • nKS—ERIAL Pf' W (ABA 122201444) 695 Town Center Drive Costa mesa, CP, 92626 •Acc 08-038-104 Ref: Title or # and Officers Name my-"E: California State Se.Tate Sill 2319, effective Jamlaty 1, 1991, regdres that the xBi-Y , in all sales of California real es,,.ate, wbe*-ein the seller shows an out of state ad&—ess, 'Withhold 3 1/3% of the teal sales price as California State irs=me Tax, subject to the various provisicns of the lw r as therein contained. ST:k Foli.c.1 Rate: Contract TRW Enclosures: Plats SMEDW i CAJ-IFORNtA LAND TnU ASSOCIATION STANDARD COVERAGE POLICY - 1990 The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, cc attorneys' fees or expenses which arise by reason of. I. (a) Any law, ordinance: or governmental regulation (including but not limited to building or zoning laws, ordinances. or rcgul=tic restricting, regulating, prohibiting or relating to W the occupancy, use, or enjoyment of the land; 64 the character, dimensic or location of any improvement now or hereafter erected on the land: 0 ) a separation in ownership or a change in the dimension: or area of the land or any parcel of which the land is or was a part; or (iv) environmental protection, or titre effect of any violat of these laws, ordinances or governmental regulations. except to the extent that a notice of enforcement thereat or a notice c defect. lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the public reco. at Date of Policy. (b) Any govemmental police power not excluded by (a) above, except to the extent that a notice of the exercise thereof or a notice a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the put records at Date of Policy. !tights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but r excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser value without knowledge. J. De -facts. liens. enc.-umhrances, adverse t rains or other matters: (a) wlsetner or not recorded in the public records at Date of Policy, but created. -suffered. assumed or agreed to by the insu. claimant; (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and . disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under t policy. (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy: or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mongage for the estate or interest insured by this policy. Uner.furceability of the lien or It,e insured mortgage because of the inability or failure of the insured at Date of Policy, or , inability or failure of any subsequent owner of the indebtedness, to comply with the applicable doing business Laws of the state in wh the land is situated. S. Invalidity ur unentorct:.tbifity of the lien of the insured mortgage, or claim thereof. which arises out of the transaction evidenced the insured mortgage and is haseo upon usury or any consumer credit protection or truth in lending law. b. any claim. which arises out of the transaction vesting in the insured the estate or interest insured by this policy or the transacts Cleating the interest of the insured lender, by reason of the opt:ratiun of federal bankruptcy, state insolvency or similar credit( rights laws. to addition to the Extlusions. you are not insured against loss. costs. attorneys` tees, and expenses resulting from: I. Taxes or assessments which are nat shown as existing liens by the records of any taring authority that levies taxes or assessme on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments. or notices of such proceedings, whether or not shown the records Of such agency or by the public records. t. Any facts, rights. interests or claims which are not shown by the public records but which could be ascertained by an inspection the lane or which may be asserted by persons in possession thereat. j. Easements. liens or enrumbrances, ur claims thereof, which are r.ot shown by the public records. a. Discrepancies. conflicts in boundary lines. shortage in area. encroachments, or any other facts which a correct survey would disclo and which are not shown by the public records. S. (a) Unpatented mining claims, (b) reservations or exceptions to patents or in Acts authorizing Ilse issuance thereof; (c) water rig!•. claims or title to water, whether or not the matters excepted under (a), (b) or (c) are shown by the public recor- AMMCAN LAND TITLF ASSOCIATION OWNERI POLICY FORM 8 -1970 (AMENDED 10-17.70) SCi IEDULE OF EXCLUSIONS FROM COVERAGE 1. ,any law, ordinance or governmental regulation tincluding but nut limited to building and zoning ordinances) restricting or regulati or prohibiting the occupancy, use or enjoyment of the land, or regulating the character dimensions or location of any improvement ni or hereafter erected on the )and, or prohibiting a separation in ownerships or a reduction in the dimensions of area of the land, or t effect of any violation of any such law, ordinance or governmental regulation. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the put records at Dale of Policy. J. Defects. liens, encumbrances. adverse claims, or other matters tat created, suffered. assumed or agreed to by the insured claims (b) not known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured by this policy and not disclosed in writing by the insured Claim: to the Company prior to the date such insured claimant became an insured hereunder, (c) resulting in no loss or damage to the insui claimant: (d) attaching or created subsequent to Date of Policy: or (e) resulting in loss or damage which would not have twen sustair if the insured claimant had paid value for the estate or interest in%ured by this policy. SCHEDULE 1 (Continued) AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - 1970 (Rev. 4-6-90) WITH ALT.A ENDORSIBAENT FORM 1 COVERAGE SCHEDULE OF EXCLUSIONS FROM COVERAGE following matters are expressly excluded from the coverage of this policy: 1. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulat or prohibiting the occupancy, use or enjoyment of land. or regulating the character, dimensions or location of any improvement nov, hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land. or effect of any violation of any such law, ordinance or governmental regulation. _' Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the put records at Date of Policy. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, surfered, assumed or agreed to by the insured claima (b) not known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy or the date such claimant acquired an estate or interest insured by this policy or acquired the insured mortgage and not disclosed writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder, (c) resulting no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent insurance afforded herein as to any statutory lien for labor or material or to the extent insurance is afforded herein as to assessments street improvements under construction or completed at Date of Policy). 4. Unenforceability of the lien of the insured mortgage because of failure of [lie insured at Date of Policy or of any subsequent owr of the indebtedness to comply with applicable "doing business laws" of the state in which the land is situated. i. Anv claim, which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason of t operation of federal bankruptcy, state insolvency, or similar creditors' rights laws. AMERICAN LAND 7771E ASSOCIATION LOAN POLICY - (4-6-90) WITH ALT.& ENDORSEMENT FORM 1 COVERAGE EXCLUSIONS FROM COVERAGE he following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, cos; attorneys' fees or expenses which arise by reason of: (a) Any law. ordinance or governmental regulation (including but not limited to building and zoning laws. ordinances. regulations) restricting, regulating, prohibiting or relating to (i) the occupancy, use or enjoyment of the land; (ii) the charactr dimensions or location of any improvement now or hereafter erected on the land: Vii) a separation in ownership or a orange in it dimensions or area of the land or any parcel of which the land is or was a part: or (iv) environmental protection, or the effect violation of these laws, ordinances or governmental regulations, except to the extent that a notice of the enforcement thereof pr notice of a defect. lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in it - public records at Date of Policy. (b) Any governmental police power not excluded by (a) above, except to the extent that a notice of the exercise therof or a notice L a defect. lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the pubs• records at Date of Policy. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but nc excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchase for value without knowledge. Defects, liens, encumbrances, adverse claims or other matters: (.t) created. suffered, assumed or agreed to by the insured claimant: (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant ano not disclose', in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this polic•, tc) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent that this policy insures the priority of the lien of th, insured mortgage over any statutory lien for services, labor or material or the extent insurance is afforded herein as it assessments for street improvements under construction or completed at date of policy): or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the insured mortgage Unenforceability of the lien of the insured mortgage because of the inability or failure of the insured at Date of Policy, or the. inability or failure of any subsequent owner of the indebtedness, to comply with applicable "doing business laws" of the state in whici- the land is situated. Invalidity or unenforceability of the lien of the insured mortgage. or claim thereof, which arises out of the transaction evidences: by the insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. Any statutory lien for services, labor or materials (or claim of priority of any statutory lien for services, labor or materials over the lien of the insured mortgage) arising troth an improvement or work related to the land which is contracted for and commenced subsequent to Date of Policy and is not financed in whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Date of Policy the insured has advanced or is obligated to advance. Any claim, which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws. SCHEDULE 7 (Ca> ed) AMEICCAN LAND TITLE IISSQCwnoN RESiDEWMITCLE INSURANCE POUCY -1979 EXCLL`.dON In addition to the exceptions in Schedule B, you are not insured aga nst loss, costs. artorneys, fees and expenses resulting from: I. Governmental police power. and the existence or violation of any law or government regulation. This includes building and ran, ordinances and also laws and regulations concerning: land use improvements an the land land division environmental protection This exclusion does not limit the zoning coverage described in Items 12 and 13 of Covered Title Risks. 2. The right to take the land by condemning it. unless a notice of taking appears in the public records on the Policy Date. 3. Title Risks: that are created, allowed. or agreed to by you that are known to you, but not to us, on the Policy Date - unless they appeared in the public records. that result in no loss to you that first affect your title afar the Policy Date - this does not limit the labor and material lien coverage in item 8 of Cover Title Risks. ;. Failure to pay value for your title. S. Lack of a right: to any land outside the area specifically described and referred to in Item 3 of Schedule A or in streets. alleys. or waterways that touch your land. This exclusion does not limit the access coverage in item 5 of Covered Title Risks. - lit idfdirion to the Exclusions. you are not insured against loss. costs, attorneys` fees, and expenses resulting from: t, Any facts. rights. interests or claims which are not shown by the Public Records but which co:sld be asccrtained by making inqu of parties in possession of the land. 2. Any liens or easements not shown by the Public Records. However, this does not limit the affirmative coverage in Item 8 of cover Title Risks. 3. Any facts about the land not shown by the Public Records which a correct surrey would disclose. However, this does not limit t affirmative coverage in item 12 of Covered Title Risks. ' {. (a) Any water rights or claims or title to water in or under the land. (b) unpatented mining claims: (c) reservations or exceptic in patents or in acts authorizing the issuance thereof. ATTACHMENT NO. 11 •:; r a u "D woffaboagalumr Recording Requested By and ) When Recorded Return To: ) Brown, Winfield & Canzoneri, Inc. ) 300 South Grand Avenue, Suite 1500 ) Los Angeles, California 90071.3125 ) Attention: Dennis S. Roy, Esq. ) (Space Above this Line for Recorder's Use) (a) Parti . This Memorandum of Amended and Restated Disposition and Development Agreement ("Memorandum"), dated for identification purposes as of ,19� is entered into by and between THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic ("Agency") and 3T DEVELOPMENT COMPANY, a California limited liability company ("Developer"). (b) DiMoitiqn and jagvelopmat Amement. Agency and Developer have executed an Amended and Restated Disposition and Development Agreement (DDA") dated for identification purposes as of 19 , covering that certain real property located in the City of Huntington Beach, County of Orange, State of California, more fully described in the Exhibit "A" attached hereto and incorporated herein by this reference. All of the terms, conditions, provisions and covenants of the DDA are incorporated in this Memorandum by reference as though written out at length herein, and the DDA and this Memorandum shall be deemed to constitute a single instrument or document. (c) purpose of Memorandum. This Memorandum is prepared for recordation purposes only, and in no way modifies the terms, conditions, provisions and covenants of the DDA. In the event of any inconsistency between the terms, conditions, provisions and covenants of this Memorandum and the DDA, the terms, conditions, provisions and covenants of the DDA shall prevail. 1379.05 001063-OMI 1111"6 (1) The parties have executed this Memorandum at the place and on the dates specified immediately adjacent to their respective signatures. Executed , 19 at "Agency" THE REDEN`ELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic By: Chairman By: Executive Director Executed ,19 w at "Developer" JT DEVELOPMENT COMPANY, LLC, a California limited liability company By: John Tillotson By: John Tsai By: Mike Roberts 1379.03 001063-0001 11/14/96 P STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of , 199 before me, the undersigned, a Notary Public in and for said State, personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of , 199 before me, the undersigned, a Notary Public in and for said State, personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (irisert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public 1379.05 001063-0001 11114/96 (3) STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared' _ _ , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On Tbefore me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public 1339.05 001063-0001 W106 (4) STATE OF CALIFORMA ) ) ss. COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public 1379.05 001063-Mt 111141% (5) EXHIBIT "A" 114,10 8 o 1379.05 001063-Dori 11/1 "6 (1) AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT (THIRD BLOCK N%TST) BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, ("AGENCY') AND J T DEVELOPMENT C0,14PANY, LLC ("DEVELOPER") G:SF-96Agm:DDA-1208 TABLE OF CONTENTS 1. [§ '100] SUBJECT OF AGREEMENT I A. I§ 101 [ Purpost a Acrement 1 B.1§ 1021;Iht Redeyelonmejol Plan. 1 C.1§ 1031 The Sitc. 2 D. N 1041 Parties to the agreement 2 1. [§ 105] The Aeencv. 2 2. [§ 1061 The Developer 3 3.1§ 1071 Prohibition Against Cha_nre in Ownership 3 E. [§ 1081 Re rese�ntations by the Developer. 5 F.1§ 1091 Oood Faith Dcnnsis 6 11. [§ 200] DISPOSITION OF THE SITE. A.1§ 2011 C.1§ 2021 Escrow. E.1§ 2031 Conveynce 12f lifle and Delivery of Possession C.1§ 2041 Form of Deed fc 1. [§ 2051 Condition of Titlti. K. [§ 2061 Time for and Plice of Delivery of Dged M.1§ 2071 Rgcordation Qf Dgcumentse Disbgaement of Funds 0.1§ 2081 Tale Insurance Q. f § 2091 Taxes and Assessments S. I§ 2101 Occupants ofshc4Site U.1§ 2111 Condition of the Site 1. 12isclosure 3. Cleanup 3. Limited yJarranties Afer Remediation: Mlieationto.Co=ibute F1s:G:SF-96Agree: DDA-1208 1219/96 i 7 7 8 11 12 12 12 13 13 13 13 13 13 14 15 15 16 16 4_ 7. Definitions 17 L 1§ 2121 rreliminary }Vorl; 17 M.1§ 2131 Conditions Precgdgnt to the Conveyance 18 N.1§ 2141 General Plan Designation and Zoning of the Site: Subdivision Map Approval. 19 0.1§ 2151 Submission of Evidence of Roaagial Comb i� tmen s and Loan Closing 20 P. [§ 2161 gclocation 21 Q. 1§2I71 Real Estate Taxes and Assessed Valuations 21 III. [§ 3001 DEVELOPMENT OF THE SITE. 22 A. [§ 3011 Deyplonment of the Site. 22 1. [§ 3021 Scope of Develol2ment. 22 2. [§ 303] Site Plan_. 22 3. [§ 304] Construction Drawings and Related Documents. 22 4. [§ 3051 Review gild ARoroval of Construction Drawings and Related Documents. 24 5. [§ 3061 Cost of Development 25 6. [§ 307] Demolition of Site. 26 7. [§ 308] Construction Schedule. 27 B. [§ 309] jndemni _, Bodily injury and Pronertv Damage Ins�ce. 27 9. [§ 310] Sily and Other_ Governmental A;epev Petmits. 28 10. [§ 3111 Rights of Access. 28 11. (§ 312] Local. al State slid Federal Laws. 29 12. [§ 313] Anti -Discrimination. 29 B. [§ 3141 Mortgage. Deed of Trust. Sale and Leas Back financing; Rights of Holders. 29 1. [§ 315] No Encumbranr s Except Mort -gag -es, Deeds of Trust or Sale and Lease-BackSor Development. 29 2. [§ 316] Holder Not Obligated to Construct Improyemgnts. 29 3. [§ 317] Notice offDefault to Mortgagee or Deed of Trig Holders- Right to CUre. 30 4.1§ 318] Fallum Qfllold..,r to Complete Improvements. 31 5. [§ 319] Right of the Agency to Cure Mortgage oL]2 d of Tnict efault. 31 C [§ 3201 Rightof the Agency to Satisfy Other Liens ,gn3h itAfter litle rasseses. 32 D. [§ 3211 Additignal Ameendment. 32 E.1§ 3221 Certificate of Comnletion. 32 IV. J§ 4001 USE OF THE SITE. 33 A. [§ 4011 Construction of Im rovyeements. 33 B.1§ 4021 AffordableltousitM. 33 C. 1§ 4031 Parking Garage. 34 F/s: G: S F-96A grce: DDA-1208 12/9r96 D. [§ 4041 Commercial Develop. 34 E.1§ 4051 Uses InAcco[dance with RedevelopmentIjana ondiscrimination. 35 F. 1§ 4061 Effect of Viglation of the Terms and Provisigris Constructl2n. 36 V. [§ 5001 DEFAULTS AND REMEDIES. 37 A. 1§ 5011 Defaults — Geneml. 37 B.1§ 5021 Legal Actions. 37 1. [§ 503] Institution oFLeral Actions. 37 2. [§ 504] A1212ticablc Lam'. 37 3. [§ 505] Acceptance of Service of Process. 37 C.1§ 5061 Rights -and emrdics Are Cumulative. 38 D. 1§ 5071 38 E.1§ 5081 Remedies and Rights Prior-to—Conygyances. 38 1. [§ 509] lets. 38 2. [§ 5101 Specifialgrfonnance. 38 3. [§ 511] Termination by the Developer Prior to the Co veyance. 38 4. [§ 512] Termination by the Agency Prior to the Convey ante. 40 F. [§ 5131 Remedies of therparties forDefau[t After the Conyeyance. 42 1. [§ 514] Termination an] Damages. 42 2. [§ 515] 8,gli4p for Specjric Performance. 42 G.1§ 5161 Rcent "nd,Revesting of -Title -in the Agency After the Conveyance. 42 VI. [§ 6011 GENERAL PROVISIONS. 44 A. [§ 6011 Notices, DrMgnds and CommtniCntions Beth-een the Partieg. 44 B. [§ 6021 44 C. [§ 6031 Enforced Delay, Extension of Times of Performance. 44 D. [§ 6041 Non -Liability of Officials and Employees of th;-Agency and the Deyelo er. 45 E.1§ 6051 Entire A}reemey45 F.1§ 6061 Memorandum of Agreement. 46 Q 1§ 6071 Counterparts 46 Vii. [§ 7001 TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY. 46 m F/s:G:SF-96Agree: DDA-1208 12/9196 Third Block West Amended Restated Disposition and Development Agreement List of Attachments Attachment No. i Site Map Attachment No. 2 Legal Description Attachment No. 3 Scope of Development Attachment No. 4 Intentionally Omitted Attachment No. 5 Intentionally Omitted Attachment No. 6 Schedule of Performance Attachment No. 7 Grant Deed Attachment No. 8 Environmental Consultant's Report Attachment No. 9 Certificate of Completion Attachment No. 10 Preliminary Title Report Attachment No. 11 Memorandum of Agreement iv su ►1 1 :►1 : 1 WHEREAS, the Redevelopment Agency of the City of Huntington Beach a public body, corporate and politic (the "Agency") and Newcomb/Tillotson Development Company, a California general partnership, previously entered into a Disposition and Development Agreement dated as of March 5, 1991 (hereinafter referred to as the "Prior DDA"); and NewcomblTillotson Development Company assigned its interest in the Prior DDA to JT Development Company, LLC, a California limited liability company ("Developer"); and Developer and the Agency desire to enter into an amended and restated Disposition and Development Agreement which will supersede and replace the Prior DDA and amend and restate all of the obligations thereunder; NOW, THEREFORE, this Disposition and Development Agreement ("Agreement") is entered into as of the 16th day of December 1996 ("Effective Date"), by and between the Agency and the Developer. The Agency and the Developer hereby agree as follows: I. [§ 1001 SUBJECT OF AGREEMENT A. [§ 101] Urpose of Agreement 1. The purpose of this Agreement is to effectuate the Redevelopment Plan (as hereinafter defined) for the Main -Pier Redevelopment Project (the "Project") by providing for the improvement of certain property situated within Subarea 5 of the Redevelopment Plan (the "Project Area'), by assisting in the assembly, disposition, and development of that real property. The Project is to be developed as a mixed use project pursuant to the Scope of Development set forth in Attachment No. 3. These improvements and certain other improvements to be constructed by the Developer constitute the "Improvements," as more specifically defined in Section 302 of this Agreement. Pursuant to this Agreement, a certain portion of the Project Area, hereinafter identified as the "Site" on the "Site Map", shall be developed and improved by the Developer in accordance with the terms of this Agreement. This Agreement is intended to set forth a comprehensive plan for development of the Site, including the nature, design, processing, financing and construction of the Improvements, for the mutual benefit of the Agency and Developer. The disposition and development of the Site as provided in this Agreement are in the vital and best interests of the City of Huntington Beach (the "City') and the health, safety, morals and welfare of its residents, and are in accord with the public purposes and provisions of all applicable state and local laws and requirements under which the Project has been undertaken. S F/s:G:SF-96Agrre: DDA-1208 1219.96 B. [§ 102) The Redevelopment Plan. The Redevelopment Plan for the Project Area was approved and adopted by Ordinance No. 2578, as amended by Ordinance Nos. 2634 and 3343, of the City Council of the City of Huntington Beach. Such ordinances and the Redevelopment Plan as approved and amended (the "Redevelopment Plan") are incorporated herein by reference. Prior to issuance of a Certificate of Completion for the entire Site, the Afcncy agrees not to amend, modify, or change the Redevelopment Plan for the Project Area in a manner that would affect the uses or development permitted or. the Site, the restrictions or controls that apply to the Site, or any other aspect of the use and enjoyment of the Site in the manner contemplated by this Agreement, without the prior written consent of the Developer. Amendments to the Redevelopment Plan applying to other property in the Project Area shall not require the consent of Developer. C. [§ 103] die mite. The "Site" is that portion of the Project Area so designated on the "Site Map" which is attached hereto as Attachment No. 1 and incorporated herein by reference. The Site is described in the "Legal Description" which is attached hereto as and incorporated herein by reference. The Site consists of the following parcels of property (collectively, the "Parcels"), which are identified on the Site Map: (i) those certain parcels owned by the Agency (the "Agency Parcels"); and (ii) that certain property, consisting of public alley located within the Site, which will be vacated and abandoned by the City and conveyed to the Developer in connection with redevelopment of the Site (the "Alley Parcel"). It is understood by the Agency and Developer that the existing Site will be subdivided substantially in accordance writh a Tentative Tract Map (the "Subdivision Map") to be submitted by the Developer to City. The legal lots created as a result of that subdivision (individually, a "Lot" and, collectively, the "Lots") will consist of separate legal lots containing retail and office uses (individually, a "Commercial Lot" and, collectively, the "Commercial Lots") and separate legal lots containing residential condominium improvements (individually, a "Residential Lot" and, collectively, the "Residential Lots"). D. [§ 104] &t=to the -Agreement 1. [§ 105] The Agency. The Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California. The principal office of the Agency is located at 2000 Main Street, P.O. Box 191), Huntington Beach, California 92648. E SF/s:G:SF-96Agmc- DDA-1208 12/9/96 "Agency", as used in this Agreement, includes the Redevelopment Agency of the City of Huntington Beach and any and all assignees of or successors to its rights, powers and responsibilities. Whenever the Agreement refers to approvals or other actions to be taken by the Agency, such approval or other action may be performed by the Executive Director of the Agency or his or her designee. 2. [§ 1061 The Deyeloj The Developer is JT Development Company, LLC, a California limited Iiability company. The principal office and mailing address of the Developer for purposes of this Agreement is 15272 Bolsa Chica Street, Huntington Beach, California 92649. The members of JT Development Company are John Tsai, John Tillotson, and Mike Roberts and the managing member is John Tillotson. By executing this Agreement, each person signing on behalf of the Developer warrants and represents to the Agency that the Developer has the full power and authority to enter into this Agreement, that all authorizations required to make this Agreement binding upon the Developer have been obtained, and that the person or persons executing this Agreement on behalf of the Developer are fully authorized to do so. Whenever the term "Developer" is used in this Agreement, such term shall include any and all nominees, assignees, or successors in interest to the rights and obligations of the original Developer provided for by this Agreement. andControl of Devel!22er and Prohibition Against Transfer of the sik The qualifications and identity of the Developer are of particular interest to the Agency. It is because of these qualifications and identity that the Agency has entered into this Agreement with the Developer. Consequently, prior to the Executive Director of the Agency issuing a Certificate of Completion with respect to the Site, or, as to each Lot within the Site, prior to the Executive Dir ctor's issuance of a Certificate of Completion with respect to such Lot (as provided in Section 322 below), no person, whether a voluntary or involuntary successor of Developer, shall acquire any rights or powers under this Agreement, nor shall the Developer assign all or any part of this Agreement or the Site, without the prior written approval of the Agency (except as provided below). A voluntary or involuntary sale or transfer of any interest in the Developer or the Site shall be deemed to constitute an assignment or transfer for the purposes of this Section 107, and, except as provided below, the written approval of the Agency shall be required prior to effecting such an assignment or transfer. Any purported transfer, voluntarily or by operation of taw, in violation of this Section, shall be absolutely null and void and shall confer no rights whatsoever upon any purported assignee or transferee. The Agency agrees that it will not unreasonably withhold approval of any assignment requiring its consent. 3 SF/s:G:Sr-96Agree:DDA-1208 12/9/96 Notwithstanding the foregoing, Developer shall be entitled to make an assignment which consists of a mortgage, deed of trust, sale and lease -back, or other form of conveyance for financing, provided that such assignment is made to a lender approved by the Agency pursuant to Section 215 of this Agreement and is for the purpose of securing a loan of funds to be used solely for financing the direct and indirect costs of constructing and operating the Improvements, including without limitation, any hard or soft construction costs, interest, fees, points, reserves or other financing costs, and all costs of planning, designing, constructing, developing, leasing and operating the Improvements to be constructed by the Developer with respect to the Site. Notwithstanding any other provision of this Agreement to the contrary, Developer shall also be entitled, without Agency approval, to make an assignment, sale or transfer of this Agreement (or a portion thereof), the Site (or a portion thereof), or any interest in the Developer, in connection with any of the following: a. The conveyance or dedication of any portion of the Site to the City of Huntington Beach or any other governmental, public, or quasi -public entity, body or agency, including all public utilities, where such conveyance or dedication facilitates the development of the Site. b. A transfer of the Site, or any Improvements thereon, and/or the assignment of this Agreement to an entity over which the Developer, the managing member of the Developer, or a wholly owmed affiliate of the Developer exercises operational and managerial control, if (i) the purchaser and/or assignee agrees to be bound by the provisions of this Agreement and any other agreements that the Developer and the Agency have executed in connection with the Project, and (ii) the Developer, the managing member of the Developer, or a wholly owned affiliate of the Developer holds more than a fifty percent (SU%) interest in the profits and losses of such purchaser or assignee. C. Any transfer resulting from the death or mental or physical incapacity of any individual. d. Any transfer to a family member or in trust for purposes of estate planning considerations, provided that an existing managing member of the Developer shall retain exclusive operational management and control of the development of the Site and shall remain responsible for the obligations of the Developer hereunder. e. Any transfer of the Site or any part thereof or interest therein, as a result of the judicial or non judicial foreclosure (or conveyance in Iieu thereof) of any encumbrance authorized by this Agreement. f. Any transfer to a lender approved by the Agency in accordance with the right of such lender under its approved encumbrance to acquire an interest in the Site, the Developer, or this Agreement. SF/s:G:S F-96Agm:DDA-1209 1218196 g. Any transfer resulting from the leasing to occupancy tenants of that portion of the Improvements to be occupied by such tenants. h. The sale of individual condominium units, the conveyance of common area and easement rights in connection therewith, and the conveyance of fee and easement interests between the Developer and the homeowners association to be created in connection with such condominium interests; provided, that no sale of an individual condominium shall close prior to the issuance of a Certificate of Completion for the applicable Residential Lot. i. Any transfer of an interest in the Developer as long as the managing member of the Developer retains operational management and control over development of the Site, provided such transfer does not affect more than sixty percent (601/o) of the existing interests in the Developer and the Developer shall remain responsible for the obligations of Developer hereunder. No assignment of the Developer's obligations with respect to the Site for which Agency approval is required, specifically excluding assignments for financing purposes and the types of assignments identified above in subparagraphs (a) and (c) through (i), inclusive, shall be effective unless and until the proposed assignee executes and delivers to the Agency an agreement in form reasonably satisfactory to the Agency's attorney assuming the obligations of the Developer which have been assigned. 'Thereafter, the assignor shall remain responsible to the Agency for performance of the obligation assumed by the assignee unless the Agency releases the assignor in writing or all of the requirements in this Section 107 are fully satisfied and the assignor is not then in default under this Agreement, in which case the assignor shall remain responsible to Agency for performance of the obligations arising prior to the effective date of the assignment or transfer, and shall be released only from any obligation or liability arising subsequent to the effective date of that assignment. No consent or approval by the Agency of any assignment or transfer requiring the Agency's approval shall constitute a waiver of the provisions of this Section 107 with respect to subsequent transfers. The Agency shall approve or disapprove of any proposed assignee which requires Agency approval within thirty (30) days after Agency's receipt of a written request therefor. Any disapproval shall be in writing, shall specify the reasons for the disapproval and any steps that must be taken by Developer to secure such approval. The restrictions of this Section shall terminate upon issuance by the Executive Director of the Agency of a Certificate of Completion for the entire Site or, as to each Lot within the Site, upon the issuance by the Executive Director of a Certificate of Completion with respect to said Lot. E. [§ 108] Representatigns by jheDevelopc . The Developer represents and warrants to the Agency as follows: E SF1s:G:SF-96Agrec:DDA-1208 121&96 1. The Developer is duly established and in good standing under the laws of the State of California and has duly authorized, executed and delivered this Agreement and any and all other agreements and documents required to be executed and delivered by the Developer in order to carry out, give effect to, and consummate the transactions contemplated by this Agreement. 2. The Developer does not have any material contingent obligations or any material contractual agreements which could materially and adversely affect the ability of the Developer to carry out its obligations hereunder. 3. There are no material pending or, to Developer's best knowledge, threatened, legal proceedings, to which the Developer is or may be made a party or to which any of its property is or may become subject, which have not been fully disclosed in the material submitted to the Agency, which could materially and adversely affect the ability of the Developer to carry out its obligations hereunder. 4. There is no action or proceeding pending or, to the Developers best knowledge, threatened, requesting the dissolution or liquidation of the Developer and there is no action or proceeding pending or, to the Developer's best knowledge, threatened by or against the Developer which could affect the validity and enforceability of the terms of this Agreement, or materially and adversely affect the ability of the Developer to carry out its obligations hereunder. Each of the foregoing items I to 4, inclusive, shall be deemed to be an ongoing representation and warranty and shall continue in effect until issuance of a Certificate(s) of Completion for the Site. The Developer shall advise the Agency in writing if there is any change pertaining to any matters set forth or referenced in the foregoing items I to 4, inclusive. F. [§ I09]CoodFaith Deposit The Developer has, prior to the approval of this Agreement by the Agency, delivered to the Agency a good faith cash deposit in the amount of Fifty Thousand Dollars (S50,000.00) (the "Developer Deposit") as security for the performance of the obligations of the Developer to be performed prior to the return of th.- deposit to the Developer, or its retention by the Agency as liquidated damages in accordance with the provisions of this Agreement. The Developer Deposit has been deposited in an interest -bearing account of the Agency in a bank or trust company selected by it. If, notwithstanding the foregoing, Agency fails to deposit the cash in an interest -bearing account, Developer shall notify Agency in writing of such failure, and Agency shall have fifteen (15) days after receipt of such notice to transfer such Developer Deposit to an interest -bearing account. Agency shall have no liability to Developer for failure to maintain such Developer Deposit in an interest -bearing account until expiration of that fifteen (15) day period. Upon termination of this Agreement as provided in Section 512(a)-(d), (f) or (g) of this Agreement, the Developer Deposit, including all interest payable thereon, or, if a letter of 6 SFIs:G:SF-96Agra:DDA-1208 12M96 credit, guaranty, or other security, the proceeds thereof, shall be retained by the Agency as provided therein. Upon termination of this Agreement as provided in Section 511 or 512(e) of this Agreement, the Developer Deposit, and all interest thereon not previously released to Developer, shall be returned to the Developer by the Agency, as provided therein. The Agency shall be under no obligation to earn any minimum rate of interest on the Developer Deposit. Upon termination of this Agreement, interest earned shall be retained by or returned to the party entitled to the Developer Deposit at that time. If the "Conveyance" (as defined in Section 202) is effected, the Agency shall immediately return the Developer Deposit (together with any interest earned thereon not previously released to Developer) to the Developer, or, at Developer's election, credit the Developer Deposit (together with interest thereon) to the purchase price of the Site. II. [§ 2001DISPOSITION OF THE SITE. A. [§ 201]Pur base of the Site. 1. Pursuant to the Prior DDA, the Agency has acquired that portion of the Site referred to in the Prior DDA as the "Third Party Parcels" (hereinafter referred to as the "Third Party Parcels"; said parcels are depicted on the Site Map (Attachment No. 1)). In order to complete its assembly of the Site, the Agency shall, in accordance with Section 203 below and the Schedule of Performance, cooperate in the vacation by the City of the Alley Parcel. The Agency agrees to use its best efforts to cause the City to undertake or cause to be undertaken and diligently pursue or cause to be pursued all hearings and other actions necessary to cause vacation of the Alley Parcel prior to the Conveyance. The Agency further agrees, promptly upon vacation of the Alley Parcel, to use its best efforts to assemble and obtain the conveyance, as necessary, of all interests required to vest the Agency with fee simple marketable title to the Alley Parcel in accordance with this Agreement so that the Agency will be in a position to vest such title in the Developer as a result of the Conveyance. 2. Pursuant to the Prior DDA, Developer advanced to the Agency One Million Nine Hundred Twenty -Two Thousand Dollars ($1,922,000.00) in connection with acquisition of the Third Party Parcels and Thirty Thousand Fifty -One Dollars ($30,051A0) in connection with environmental investigation of the Site. Said funds, together with all other funds that may be advanced by Developer for environmental assessment of the Site (Section 211 [2]) and/or demolition of all structures and clearance of all improvements from the Site, if applicable (Section 307), shall constitute a loan from Developer to Agency (the "Developer Loan"). The Developer Loan is currently evidenced by a promissory note, and is currently secured by a first deed of trust encumbering the interest of the Agency in the Site (exclusive of the Third Party Parcels). The Agency and the Developer shall promptly execute, acknowledge, and record such additional documentation as may be necessary to evidence and/or secure any 7 SFIs:G:SF-96Agrcc: DDA-t208 12/&96 additional advance Developer may elect to or be obligated to make with respect to the Developer Loan under the terms of this Agreement. The Developer Loan shall be immediately payable by the Agency to the Developer upon the termination of this Agreement for any reason, other than the Developer's uncured material default. In the event that this Agreement is terminated, and the Developer is in material default of this Agreement at that time, and such default has already continued beyond the cure period provided by Section 501 hereof, then, notwithstanding such termination, the Developer Loan shall not be repayable until the Agency conveys all or a portion of the Site, or an interest therein, to a new developer for purposes of redevelopment; provided (i) that the Agency shall use its best efforts to Ioca:e a successor developer as quickly as possible, and (ii) the Developer Loan shall, in any event. be due and payable in full one (1) year after the Agency's notice to Developer of the termination of this Agreement. If such obligation is not repaid when due, it shall thereafter bear interest at a rate equal to twelve percent (12%) per annum or the highest rate permitted by law, whichever is less (the "Agreed Interest Rate"). Following the date of this Agreement, Developer shall not be required to make any further advance to the Agency with respect to acquisition of the Third Party Parcels. The outstanding balance of the Developer Loan as of the date of this Agreement is One Million Nine Hundred Fifty -Two Thousand Fifty -One Dollars (S1,932.051.00). As set forth in Section 20I [3] below, all amounts comprised within the Developer Loan as of the Closing shall be deducted from the purchase price payable to the Agency. Developer acknowledges that it is not entitled to any further deduction or offset to the purchase price on the basis of other Project costs incurred prior to the date of this Agreement. I Provided that the Developer is not then in default of this Agreement, and in accordance with and subject to all of the terms, covenants and conditions of this Agreement, Agency agrees, at or before the time established in the Schedule of Performance (Attachment No. 6), to sell to the Developer, and the Developer agrees to purchase from the Agency, the Site. The purchase price for the Site shall be Two 'Million One Hundred Fifty Nine Thousand Dollars (S2,159,000.00), less (a) One Million Nine Hundred Fifty -Two Thousand and Fifty -One Dollars (SI,952,05I.00), representing the amount of funds advanced by Developer in connection Mth acquisition of the Third Party Parcels and environmental investigation of the Site to date, and (b) all costs hereafter incurred by Developer pursuant to Section 211 in connection ►with environmental investigation (but not remediation) cf the Site, (c) the amount of funds advanced or incurred by Developer in connection with demolition of all improvements on and clearance of all improvements from the Site pursuant to Section 307 (including the costs of asbestos removal incurred in connection with the demolition) and (d) at Developer's election, the Developer Deposit (together with all interest thereon), (the n=t amount obtained following such reduction is herein referred to as the "Purchase Price"). Tl c Purchase Price will be paid by Developer to Agency in cash at close of Escrow (as hereinafter defined). 4. In addition to the consideration set forth above, the Developer shall pay all of those costs, charges, fees and expenses hereafter expressly provided to be paid by Developer pursuant to this Agreement and shall, at its cost, provide all of the Improvements required by this Agreement to be provided by the Developer at its cost. B. [ys 2021 Eccrow. s SVs:G.SF-96ASree:DDA-1209 119196 B., 202]Escrow 1. The Agency and the Developer have opened an escrow with Orange Coast • Title Company (the "Escrow Agent"). The escrow described in this Section 202 shall be referred to as the "Escrow," and the conveyance of title to the Site provided for in this Section 202 shall be rderred•to as the "Conveyance." The "Close of Escrow" shall refer to the Conveyance and shall occur concurrently with the effectuation of that Conveyance. This Agreement constitutes the joint basic escrow instructions of the Agency and the Developer for the Conveyance, and a duplicate original of this Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. The Agency and the Developer shall provide such additional escrow instructions as shall be necessary for and consistent with this Agreement. The Escrow Agent is hereby empowered to act under this Agreement, and the Escrow Agent, upon indicating within five (5) days after the opening of the Escrow its acceptance of the provisions of this Section 202, in writing, *delivered to tl:e Agency and the Developer, shall carry out its duties as Escrow Agent hereunder. 2. - Upon delivery of the Grant Deed (as hereafter defined) to the Escrow Agent by the Agency pursuant to Section 204 of this Agreement, the Escrow Agent shall record such deed when title can be vested in the Developer in accordance with the terms and provisions of this Agreement. Tlie Grant Deed shall cover the entire Site. Escrow Agent shall promptly cause the recordation of such Grant Deed and its delivery to the Developer, and, in connection therewith, shall allocate all charges and proration in accordance with the instructions for this Escrow applicable to the Conveyance. The Developer shall accept conveyance of title as provided in Section 201. The Escrow Agent shall pay any applicable transfer tax. Any insurance policies covering the Site are not to be transferred. 3. The Developer shall pay into the Escrow the following fees, charges and costs promptly after the Escrow Agent has notified the Developer of the amount of such fees, charges and costs, but not earlier than ten (10) days prior to the scheduled date for Close of Escrow: a. One-half (M) of the Escrow fee; b. That portion of the premium for the title insurance policy to be paid by the Developer as set forth in Section 208 of this Agreement; C. The Purchase Price in cash; d. Any applicable documentary transfer tax and/or stamps; and e. Any other costs customarily allocated to the buyer of real property in the County of Orange. 4. The Agency shall pay into Escrow the following fees, charges and costs 9 SF/s:G:SF-%A&ree:DDA-1208 12/12/96 a. One-half (1/2) of the Escrow fee; b. Cost of drawing the deed; C. Recording fees; d. rotary fees; e. That portion of the premium for the title insurance policy to be paid by the Agency as set forth in Section 208 of this Agreement; f. Ad valorem taxes, if any, upon the Site for any time prior to transfer of title; and g. Any other costs customarily allocated to the seller of real property in the County of Orange. S. The Agency shall timely ani properly execute, acknowledge and deliver the Grant Deed as necessary to convey the entire Site in the manner contemplated in Section 201 and Section 202[2] of this Agreement. The deed shall be substantially in the form of the "Grant Deed" which is attached to this Agreement as Attachment No. 7 (and is incorporated herein). 6. The Escrow Agent is authorized to: a. Pay and charge the Agency and Developer, respectively, for any fees, charges and costs payable under this Section 202 in accordance with the terms hereof. Before such payments or charges are made, the Es:row Agency shall notify the Agency and the Developer of the fees, charges and costs necessary to clear title and close the Escrow. b. Disburse funds and deliver the Grant Deed and other documents to the parties entitled thereto when the conditions of this Escrow have been fulfilled by the Agency and the Developer. Funds deposited as part of tl-.e Purchase Price shall not be disbursed by the Escrow Agent unless and until the Escrow Agent has recorded the Grant Deed (Attachment No. 7) contemplated by this Agreement and has delivered to the Developer and (if requested by the Agency) the Agency, respectively, a title insurance policy insuring title to the entire Site and conforming to the requirements of Sections 205 and 208 of this Agreement. C. Record any instruments delivered through this Escrow, if necessary or proper, to vest title in the Developer in accordance with the terms and provisions of this Agreement. All funds received in this Escrow shall be deposited by the Escrow Agent, with other escrow funds of the Escrow Agent in an interest earning general escrow account or accounts with any state or national bank doing business in the State of California. Such funds may be transferred to any other interest earning general escrow account or accounts. All 10 SF/s:G:SF-96Agrce:DDA-1209 11"6 disbursements shall be made by check of the Escrow Agent. All adjustments are to be made on the basis of a thirty (30) day month. If this Escrow is not in condition to close on or before the time for conveyance established in Section 206 of this Agreement, either party who then shall have fully performed the acts to be performed before the conveyance of title may, in writing, demand from the Escrow Agent the return of its money, papers or documents deposited with the Escrow Agent. I`ro demand for return shall be recognized until ten (10) days after the Escrow Agent shall have mailed copies of such demand to the other party or parties at the address of its or their principal place or places of business. Objections, if any, shall be raised by written notice to the Escrow Agent and to the other party within the ten (10) day period, in which event the Escrow Agent is authorized to hold all money, papers and documents with respect to the Site until instructed by a mutual agreement of the parties or by a court of competent jurisdiction. If no objection is raised within such ten (10) day period, Escrow shall return all money, papers and documents to the party demanding their return. If, notwithstanding the failure of Escrow to close within the time provided in the Schedule of Performance, no demand is made on Escrow for the return of money, papers or documents, the Escrow shall be closed as soon as possible. Any amendment to these escrow instructions shall be in writing and signed by both the Agency and the Developer. At the time of any amendment, the parties shall secure the agreement of the Escrow Agent to carry out its duties as Escrow Agent under such amendment. All communications from the Escrow Agent to the Agency or the Developer shall be directed to the addresses and in the manner established in Section 601 of this Agreement for notices, demands and communications between the Agency and the Developer. The liability of the Escrow Agent in the capacity as escrow holder with respect to the Conveyance is limited to performance of the obligations imposed upon it under Sections 202 through 211, inclusive, of this Agreement. D. [§ 203] Conveyance of Title and Deli= of Possession. Subject to any extensions of time mutually agreed upon in «-citing between the Agency and the Developer, the Conveyance shall be completed on or prior to the date specified therefor in the Schedule of Performance (Attachment No. 6). The Schedule of Performance (Attachment No. 6) is subject to revision from time to time as mutually agreed upon in writing between the Developer and the Agency. The Agency and the Developer agree to perform all acts necessary to the conveyance of title in sufficient time for title to be conveyed in accordance with the foregoing provisions. It shall be a condition precedent to Developer's obligations under this Agreement that the City shall have caused the vacation of the Alley Parcel prior to the Conveyance, and that, concurrent with such Conveyance, record title to the Alley Parcel «ill be vested in Developer free and clear of all liens, encumbrances, easements, rights, rights of way, 11 S F,'s:G:SF-96Agree:DDA-1209 12.9196 claims or other limitations thereon, except for any exceptions to title approved by Developer pursuant to Section 205. Possession shall be delivered to the Developer not later than the conveyance of title, except that limited access shall be permitted before conveyance of title as provided in Section 211 of this Agreement. Provided that all conditions set forth in this Agreement with respect to the Conveyance have been satisfied, the Developer shall accept title on or before the date established in the Schedule of Performance (Attachment No. 6) for the Conveyance. F. [§ 204]Fmm of Deed for the Conveyance. The Agency shall convey to the Developer title to the Site, excepting the mineral rights thereto, in the condition provided in Section 205 of this Agreement by a grant deed substantially in the form of the Grant Deed set forth in Attachment No. 7. H. [§ 205]Condition of Title. The Agency shall convey to the Developer fee simple merchantable title to the Site, excepting the mineral rights thereto (but without reservation of any right of surface entry), and said title shall be free and clear of all recorded or unrecorded liens, encumbrances, covenants, assessments, easements, leases, taxes, and other matters affecting title, except for covenants and easements of record which the Developer approves in writing pursuant to the provisions of this Section 205, the Redevelopment Plan, and the provisions contained in the Grant Deed (Attachment No. 7). The condition of title shall be compatible with and not preclude development of the Improvements. The Developer has, prior to the execution of this Agreement, been provided with a preliminary title report (the "Preliminary Title Report"), together with copies of all documents reported as exceptions in the Preliminary Title Report (collectively the "Title Documents") for the Site, dated as of August 5, 1991, Order No. I68013-5. A copy of the Preliminary Title Report is attached hereto as Attachment No. I0. Developer has approved exceptions 1, 2 and 3 sho,Am in the Preliminary Title Report, subject to receipt of an endorsement from Title Company insuring that there is no right of surface entry on the Property with respect to any of those items. All other exceptions, including, without limitation, all mortgages, deeds of trust or other like monetary encumbrances shall be deemed disapproved and Developer shall not be required to accept the Site subject to any such exceptions or liens. Agency shall correct or remove such matters identified in the Disapproval Notice not later than the Conveyance of the Site. The Agency will reserve and except from the Conveyance all interests in oil, gas, hydrocmbon substances and minerals of every kind and character lying more than 500 feet below the surface, together with the right to drill into, through, and to use and occupy all parts of the Site lying more than 500 feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said site or 12 SF/s:G:SF-96ASmc: DDA-1208 12IM6 other lands, but %rlthout, however, any right to use either the surface of the Site or any portion thereof within 500 feet of the surface for any purpose or purposes whatsoever. 1• - • ,I• 19 MWIT 111-3I • I -• Subject to any mutually agreed upon extension of time, the Agency shall deposit the Grant Deed (Attachment No. 7) with the Escrow Agent on or before the date established for the Conveyance pursuant to the Schedule of Performance (Attachment No. 6). The Escrow Agent shall file the Grant Deed for recordation among the Iand records in the Office of the County Recorder for Orange County, and shall deliver the balance of the Purchase Price (concurrent with the Conveyance) to the party entitled thereto after delivery to the Developer of a title insurance policy insuring title in conformity with Section 205 of this Agreement. N. [§ 2081IWe Insurance. Concurrently with recordation of the Grant Deed (Attachment No. 7) conveying title to the Site, the Title Company shall provide and deliver to Developer a title insurance policy issued by the Title Company insuring that the Title to the entire Site is vested in Developer in the condition required by Section 205 of this Agreement. The Title Company shall provide the Agency with copies of the title insurance policy and the title insurance policy shall be for the amount of Two Million One Hundred Fifty -Nine Thousand Dollars ($2,159,000.00). The Agency shall bear a share of the cost of the title insurance policy equal to the cost of a standard CLTA policy with coverage in the amount specified above. All additional costs incurred for or related to such title insurance shall be borne solely by the Developer. The Developer may, at its option and at its cost, obtain coverage in excess of the amount specified above, secure any endorsements to its CLTA form of policy, or secure an ALTA form of policy, rather than the CLTA policy. P. [§ 209]Toss and Assessments. Ad valorem taxes and assessments, if any, on the Site levied, assessed or imposed for any period prior to the Conveyance shall be borne by the Agency, and any of such taxes and assessments imposed after the Conveyance of the Site shall be borne by the Developer and its successors and assigns. After the Conveyance of the Site to Developer, Developer shall pay when due all real estate taxes and assessments on the Site so long as Developer retains an interest therein. R. [§ 210] Occupants of the Site. Concurrent with the Conveyance, possession of the Site shall be delivered to the Developer with no occupants and free of any rights of possession by others. 13 SFls:G:SF-96Agrce:DDA-1208 12BM6 T. [§ 211I.Cm 1. Mclosure. The Agency represents that, to the best of its actual knowledge, two gasoline service stations formerly existed on the Site, which contained underground gasoline storage tanks, which may have contaminated the soil or groundwater on or under the Site with petroleum or other Hazardous Substances (as defined below). GeoRemediation Inc. ("Environmental Consultant") has conducted an environmental assessment of the Site. Environmental Consultant set forth its findings in a work plan, dated January 12, 1996, and attached hereto as Attachment No. 8 and incorporated herein, which contains the recommended remediation measures for the Site. 2. Mom. Subject to the "Remediation Cost Cap" (defined below), Agency hereby agrees to fund all remediation activities (the "Remediation"), including the installation of monitoring equipment and removal of all asbestos from the Site in connection with demolition and clearance of the Site pursuant to Section 307, necessary to correct or remove the environmental harms or hazards noted in the above investigation (Attachment No. 8). The Developer and the Agency have accepted the recommendation of the Environmental Consultant (Attachment No. 8) as establishing the scope and description of the Remediation work to be performed on the Site and the parameters and conditions of such Remediation work. Such Remediation work is underway as of the date of this Agreement. The Environmental Consultant is presently supervising the Remediation work performed by the chosen contractor in order to ensure that such Remediation work is diligently pursued to completion in compliance with all applicable laws, including without limitation, those statutes described below as the Applicable Laws, and the Remediation plan approved by the parties. The Agency agrees to consult with the Developer and keep the Developer fully informed throughout the Remediation process, and agrees to allow the Developer access to the Site for purposes of inspecting any Remediation work being performed thereon. The Developer shall be notified of, and allowed to attend and participate in, all discussions, hearings, proceedings or meetings related to the Remediation work. The Agency further agrees to consult with the Developer with respect to all Remediation work, to provide the Developer with copies of all correspondence, studies, tests and other documentation relating to the Remediation work, and to reasonably consider any recommendations or requests presented by the Developer with respect to such Remediation work. The Agency shall provide the Developer, upon the Developer's request from time to time, with an accounting of remediation costs incurred to date ("Remediation Costs'). Prior to undertaking any such Remediation work, the Agency shall obtain all required governmental approvals pursuant to California Health and Safety Code Section 33420.5 (to the extent applicable) and any other applicable laws in connection with the performance of the Remediation. If the projected costs of Remediation to be incurred by the Agency with respect to the Site (including the projected cost of the asbestos removal to be incurred in connection with demolition and clearance pursuant to said Section 307, but exclusive of any other costs of demolition or removal pursuant to said Section) (the "Remediation Cost") at any 14 SFIs:G:SF-96Agrce:DDA-1208 12MV6 time exceeds Two Hundred Fifty Thousand Dollars ($250,000.00) (the "Remediation Cost Cap"), either party may terminat.- this Agreement, within thirty (30) days after notice of such projected cost, by the procedure set forth in Sections 511 and 512 herein; provided, however, that if one of the parties, at its option, agrees to pay the excess of the Remediation Costs described in this Paragraph 3 over Two Hundred Fifty Thousand Dollars ($250,000.00), the other party may not terminate this Agreement. Such payment shall not constitute a waiver of any other right of the paying party or of any responsibility or liability of the other party under this paragraph. Notwithstanding anything else in this Agreement which is or appears to be to the contrary, unless the Developer, in its sole discretion, elects otherwise, all work described in this paragraph shall be completed and all required approvals obtained prior to the Conveyance of the Site to the Developer. If necessitated by the foregoing sentence, the date set forth in the Schedule of Performance (Attachment No. 6) for Conveyance of the Site shall be extended as necessary to complete such Remediation and secure such approvals; provided that such extension shall not exceed one hundred eighty (180) days. If the Agency is unable to complete such Remediation and obtain all necessary approvals by such extended deadline, then the Developer, at its sole option, may terminate this Agreement or extend the deadline for the Conveyance of the Site to such date(s) as Developer deems appropriate. Agency further agrees to indemnify, defend and hold Developer and all members, partners, employees, contractors, agents and representative of Developer (collectively, "Representatives") harmless from all losses, liabilities, costs, expenses, damages, claims and causes of action, including attorneys' fees and court costs, (collectively, "Liabilities") arising from or related to Developer's actions on behalf of Agency pursuant to this Section. 3. )itUd Waraiaties After Remediation_ Obligation to Contribute. Upon completion of any cleanup required pursuant to Paragraph 2 above, the delivery of the Site to the Developer shall be in an "as -is" condition, with no warranty expressed or implied by the Agency as to the presence of Hazardous Substances on the Site, except as expressly provided below. Notwithstanding anything; above to the contrary, the Agency shall remain responsible for and shall indemnify, defend and hold the Developer and its Representatives harmless from all costs, expenses, loss, damage, cause of action or liability ("Liabilities') arising from or related to any Remediation work performed by or on behalf of the Agency (except work performed by the Developer) on the Site pursuant to Section 211[2]. In addition, Agency agrees to indemnify, defend and hold Developer and its Representatives harmless from all Liabilities arising from or related to the presence of any hazardous Substances on the Site, regardless of when discovered, which were located on the Site at the time of the Conveyance; provided, that (i) the Agency's total liability under this indemnity shall not exceed Two Hundred and Fifty Thousand Dollars ($250,000.00), and (ii) except as to any ongoing remediation systems in place as of the issuance of a Certificate of Completion for the entire Site (which shall continue to be funded by the Agency up to the amount of the Two Hundred Fifty Thousand Dollars ($250,000.00) Remediation Cost Cap), this indemnity shall expire upon issuance of a Certificate of Completion for all of the Improvements to be constructed by Developer. Except as provided in the preceding two sentences and Section 211[2], the Developer shall be responsible for remediation of the presence of Hazardous Substances in, on or under the Site, including contaminated soils or ground water, first discovered after the date of the Conveyance, and, except as provided above, if any Hazardous Substance is discovered on the Site subsequent to the Conveyance, the Developer 15 SF/s:G:SFA6Agrte:DDA-1208 121"6 shall be responsible for its removal, management, or any other acts required by any Applicable Law, court or government agency. 4. Deveiopgr,Indemniiv. The Developer, including any and all of its successors in interest (other than the holder of any encumbrance permitted pursuant to the terms of this Agreement), agrees to and shall indemnify, defend, and hold the Agency and the City and their respective officers, employees, representatives and agents harmless from and against all expenses (including, without limitation, reasonable attorneys' fees and disbursements), losses, or liabilities suffered by the Agency or the City by reason of governmental action or third party claims arising out of any Hazardous Substances brought upon the Site by the Developer in connection with the construction of the Improvements. Upon vesting of title to the Site in the Developer, the Developer, except as otherwise expressly provided in this Agreement, shall assume all responsibility for subsurface zone conditions and soils conditions of the Site, and for any rehabilitation necessary for the construction of the Improvements; and, except as otherwise expressly provided in this Agreement, the Agency makes no other representations or warranties concerning the Site, its suitability for the use intended by the Developer, or the surface or subsurface conditions of the Site. Except as otherwise expressly provided in this Agreement, if the soil conditions of the Site are not in all respects entirely suitable for the use or uses to which the Site will be put, then it is the sole responsibility and obligation of the Developer to take such action as may be necessary to place the Site in a condition suitable for the development of the Site. Nothing in this Section 211 is intended to waive any claim or right the Developer may have against any person or entity, other than the Agency or the City, relating to the physical condition of the Site. 5. Developer .The Developer agrees to comply with Applicable Laws in all activities using or concerning Hazardous Substances on the Site. The Developer agrees to immediately notify the Agency of the Developer's discovery following the Conveyance of any Hazardous Substances on the Sitc. 6. De5glgpgr Release. Upon vesting of title to the Site in the Developer, the Developer releases, waives and discharges the Agency and the City and their respective officers, employees, representatives and agents from all present and future claims, demands, suits, legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, present and future, arising out of or in any way connected with the Agency's or the City's ownership of the Site (including, without limitation, ownership of the Site or any portion thereof for the purposes of CERCLA and any other Applicable Law, as those terms are defined in Paragraph 9 below), any condition of environmental contamination on the Site, or the existence of Hazardous Substances in any state on the Site; provided, such environmental contamination of Hazardous Substances were not brought onto the Site by the Agency or City or any person or entity acting on their behalf or at their direction. The Developer acknowledges that it is aware of and familiar with Section 1542 of the California Civil Code which provides as follows: 16 SF/s:G:SF-96Agm:DDA-1208 12M96 "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release which if known by him must have materially affected his settlement with the debtor." The Developer hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code. Notwithstanding anything in this Section which is or appears to be to the contrary, nothing in this Section shall be construed or understood to limit or waive the obligation of the Agency to fund Remediation of the Site up to the Remediation Cost Cap or to otherwise release the Agency from any express contractual obligations or liabilities imposed upon the Agency pursuant to the terms of this Agreement. 7. Ue1IIisions. The term "Hazardous Substance" or "Hazardous Substances" shall mean any substance which is listed as "hazardous" or "toxic" in the statutes comprising (or regulations implementing) the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601, ct sea., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, gt seq., ("RCRA"), and California Health and Safety Code Sections 251 00, et sea., 25300, et sea., or 25280, et sea. or which has been, is now, or is later determined by any federal, state or local agency or court with jurisdiction over the Site to be a hazardous or toxic substance regulated under Applicable Law. The term "Hazardous Substance" or "Hazardous Substances" shall also include, without Iimitation, the products of any manufacturing activities on the subject property, petroleum wastes, petroleum by-products, asbestos containing materials, and source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended (42 U.S.C. 301 1, et sea., as amended). The term "Applicable Law" shall include, but shall not be limited to, CERCLA, RCRA, the Federal Water Pollution Control Act, 33 U.S.C. I251, et se$., the Clean Air Act, 42 U.S.C. 740I, et sen., California Health and Safety Code Sections 25100, et-seq., 25300, et seq., or 25280,.c5=., and the regulations thereunder, and any other local, state and/or federal laws or regulations that are applicable to the Site and that govern (i) the existence, cleanup and,'or remedy of contamination on property; (ii) the protection of the environment from spilled, deposited or otherMse emplaced contamination; (iii) the control of Hazardous Substances; or (iv) the use, generation, transport, treatment, removal or recovery of Hazardous Substances, including building materials. L. [§ 212] Preliminary Work. Prior to the Conveyance of the Site, representatives of the Developer shall have the right of access to all portions of the Site for which the Agency holds title or over which it has a right of possession or access, at all reasonable times for the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement, including the investigation of the environmental condition of the Site pursuant to Section 211 hereof and the investigation of 17 SF/s:G:S F-96Ag=:DDA-1208 MIM6 all soil, subsoil and geologic conditions on the Site. Any preliminary work undertaken on the Site by the Developer prior to Conveyance of the Site shall be done only after written notice to the Agency Executive Director delivered not less than forty-eight (48) hours prior to the Developer's entry on the Site, and, except as otherwise expressly provided in this Agreement, at the sole expense of the Developer. Except as provided in Section 211, the Developer shall save and protect the Agency and the City against any claims resulting from all preliminary work on, access to or use of the Site undertaken pursuant to this Section 212, and, upon termination of this Agreement and written request of the Agency, shall restore the Site to its original condition with respect to any alterations on the Site caused by such investigations. Copies of data, surveys and tests obtained or made by the Developer on the Site pursuant to this Section 212 shall be filed with the Agency within fiftcen (15) days after receipt by the Developer. Any preliminary work by the Developer shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. If this Agreement is terminated for any reason, the Agency shall reimburse the Developer for the costs of any such studies or tests which are not otherMse reimbursed under this Agreement and which the Agency elects, within thirty (30) days after such termination, to retain. if the Agency elects not to retain any such studies, it shall promptly surrender to the Developer the original copy of such study and all copies, reproductions, or copies thereof, and, upon such timely surrender, shall have no reimbursement obligation to the Developer for such studies. If the Agency retains any tests or studies, it shall be without representation or warranty of any kind from the Developer. In no event shall the Developer be required to deliver its internal marketing studies and financial projections under this Section 212. M. [§ 213]Conditions ,Exec enttodhe C-ellv_gyance. Prior to and as conditions precedent to the Conveyance of the Site, the Developer and Agency shall complete each of the following by the respective times established therefor in the Schedule of Performance (Attachment No. 6): (Attachment No. 7); (1) the Agency and the Developer shall execute the Grant Deed (2) the Developer shall pay into Escrow the Purchase Price; (3) the Developer shall not be in material default of its obligations under this Agreement (provided that this condition shall only be for the benefit of, and may be waived by, the Agency); (4) the Agency shall not be in material default of its obligations under this Agreement (provided that this condition shall only be for the benefit of, and may be waived by, the Developer); (5) the Developer shall have obtained all entitlements and land use approvals necessary to develop the Site in the manner contemplated by this Agreement 18 SF/s:G:SF-96Agrcc:DDA-1208 12/8.96 (which shall be final and not subject to further appeal) (hereinafter referred to as the "Land Use Entitlements") and the City shall be prepared, immediately following the Conveyance and subject to payment of any applicable fees, to issue building permits for all of the Improvements to be constructed on the Site; (6) the Agency , by its Executive Director, shall have approved the Developer's evidence of financing for the Site in accordance with Section 215; (7) the Developer shall have provided to the Agency Executive Director insurance certificates conforming to Section 309 of this Agreement; (8) the Site investigation shall have been completed and the Site remediation shall have been completed as provided in Sections 211 [21 and 211 [3] (unless Developer elects to complete Site remediation following the Conveyance); (9) Site clearance and demolition shall have been completed (unless the Developer elects to complete such clearance and demolition following the Conveyance), as provided in Section 307; (10) recordation of the final Subdivision Map and vacation of the Alley Parcel by the City shall have been accomplished; (11) the construction loan, if any, to be secured by the Developer in connection with development of the Site shall be in a position to fund promptly following the Conveyance; and (12) all other conditions to the Conveyance provided in this Agreement and the instructions to the Escrow shall have been satisfied (or w2ived by the party for whose benefit the condition is provided). The foregoing items together constitute the "Conditions Precedent" to the Conveyance. The foregoing provisions shall not be construed to relieve another party of its responsibility for performance of its obligations wider this Agreement, nor to limit the non - defaulting party's remedies for the defaulting party's breach of those obligations. The City general plan designation and zoning of the Site subject to zoning variances granted by the City Planning Commission at the time of the execution of this Agreement, are such as to permit development and construction of the Improvements thereon in accordance with the provisions of this Agreement, and the use, operation and maintenance of such Improvements. The Agency shall use its best efforts to assist the Developer to obtain any additional entitlements or land use approvals necessary to develop the Improvements contemplated by this Agreement. 19 SF1s:G:SF-96Agrce: DDA-1208 121&96 The Developer shall be responsible to make appropriate application to the City to satisfy all provisions of the California Subdivision Map Act (Government Code Section 66410, cl nq.), to obtain any required conditional use permit, and to satisfy all other local enactments pursuant to the Subdivision Map Act which are applicable with respect to the assembly and development of the Site. The Agency shall assist and cooperate with the Developer in accomplishing these matters. • 11 • 1 a U ar.' 1 V 1. 1 T 1ITS IT 1 -IT4 1 1• i As required in this Agreement and within the time established therefor in the Schedule of Performance (Attachment No. 6), tl:e Developer shall submit to the Agency Executive Director evidence that the Developer has obtained the required financing necessary to undertake the development of the Site in accordancc with this Agreement. The Developer shall close said financing concurrently with the Close of Escrow for the Site. Within fifteen (15) days after submission, the Agency Executive Director shall approve or disapprove such evidence of financing. Approval shall not be unreasonably withheld or conditioned. If the Agency Executive Director shall disapprove any such evidence of financing, the Agency Executive Director shall do so by written notice to the Developer stating the reasons for such disapproval and, if such disapproval is authorized by this Agreement, the Developer shall promptly attempt to obtain and submit to the Agency Executive Director new evidence of financing. The Agency Executive Director shall approve or disapprove such new evidence of financing in the same manner and within the same time established in this Section 215 for the approval or disapproval of the evidence of financing as initially submitted to the Agency Executive Director. Such evidence of financing shall include the following: 1. A copy of a commitment obtained by the Developer for the mortgage loan or loans for financing to fund the construction of the Project. The commitment for financing shall be in such form and content acceptable to the Agency as reasonably evidences a legally binding, firm and enforceable commitment, which may be subject to the construction lender's customary and normal conditions and terms and to preparation of final loan documentation; provided, however, this formal commitment shall not be required if the Developer's construction lender does not customarily issue such commitments, and, in that event, the Agency agrees to accept, in lieu of the commitment requirement, evidence of the willingness of the DeveIopces proposed lender to provide the necessary financing, even if such evidence is not legally binding or is of an informal nature; and 2. A copy of the contract between the Developer and one or more general contractors for the construction of the applicable Improvements, certified by the Developer to be a true and correct copy thereof, provided, this provision shall not apply if the Developer elects to act as its own general contractor for the Improvements. 20 sr/s:G:SF-96Agnee:DDA-1208 1218'96 3. The Developer has already provided to the Executive Director of the Agency a financial statement and/or other documentation satisfactory to the Agency as evidence of other sources of capital sufficient to demonstrate that the Developer has adequate funds to cover the difference, if any, between construction costs and the financing authorized by any contemplated mortgage loans. P. [§ 216]Rdoc�ation. The Agency has performed or will perform all relocation obligations, at its sole cost, required by law as a result of the execution of this Agreement and the construction of the Improvements. Q. [§217]$=1 Estate Taxes and Asses Valuations 1. Ad valorem taxes and assessments, if any, on the Site, levied, assessed, or imposed for any period prior to the Conveyance, shall be borne by the Agency. All such ad valorem taxes and assessments Ievied or imposed for any period after the Conveyance shall be paid by the Developer. 2. After the Conveyance and prior to issuance of the Certificate of Completion for the Site, the Developer shall make no appeal or challenge of an assessment of the fair market value of the Site for property tax purposes that would result in reducing the assessed value below Two Million One hundred Fifty Nine Thousand Dollars ($2,159,000.00). 3. Upon the issuance of the Certificate of Completion for the Site and for the following seven (7) years, the Developer and its successors and assigns shall make no appeal or challenge of an assessment of the fair market value of the Commercial Lots for property tax purposes that would result in reducing the assessed value below Seven Million Five Hundred Thousand Dollars ($7,500,000.00), as aggregated across the Commercial Lots. The foregoing shall not prevent a reassessment below Seven Million Five hundred Thousand Dollars ($7,500,000.00) in cases of damage or destruction of all or a portion of the Improvements on the Commercial Lots, pending reconstruction of the Improvements. The assessed value may be spread across the Commercial Lots on any basis, so long as the aggregate value is met. Except for temporary reduction in the event of damage or destruction as set forth above, should the assessed value of the Commercial Lots be reduced such that the total assessed value of the Commercial Lots is less than Five Million Dollars ($5,000,000.00) as aggregated across the Commercial Lots, then the Developer and its successors and assigns shall agree to an increase in assessed value to not less than Five Million Dollars ($5,000,000.00). The foregoing shall apply to all transfers, assignments and bankruptcy proceedings, but shall terminate in the case of a transfer due to a foreclosure or deed in lieu of foreclosure to a commercial lender unaffiliated to Developer. Upon the transfer of all interest in the Site by Developer or any successor to an unaffiliated entity, the transferor shall have no further liability with respect to events occurring after the date of transfer. Following the seventh (7th) anniversary of the initial issuance of a 21 SF1s:G:SFA6Agrccr.DDA-1248 M196 Certificate of Completion on the Site, Agency shall, at Developer's request, execute, acknowledge and deliver to Developer a document, in recordable form, acknowledging the termination of the provisions of this Section 217 and that those provisions are of no further force or effect. III. [§ 300] DEVELOPMENT OF THE SITE. A. [§ 3 01 ] v 1. [§ 3021Scope of Development. The Site shall be developed as provided in the "Scope of Development" which is attached hereto as Attachment No. 3 and is incorporated herein. The development of the Site shall include both the public improvements and private improvements on the Site and the public improvements off -site which are required to be constructed by the Developer pursuant to the terms of the Scope of Development (collectively, the "Improvements"'). Upon the completion of the Conveyance, the Developer shall commence and complete construction of the Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 6). The development shall conform to any plans and specifications approved by the City and/or Agency, and shall incorporate or show compliance with all mitigation measures provided for by this Agreement or other applicable approvals consistent with the terms of this Agreement. 2. [§ 303]S;tc. In connection with this Agreement, the Developer has prepared and submitted to the Agency a Site Plan and related documents which conform to requirements of the Agency and which contain the overall plan for development of the Site in sufficient detail to enable the Agency to evaluate the proposal for conformity to this Agreement. The Site shall be developed as established in this Agreement, and such documents, except as changes may be mutually agreed upon between the Developer and the Agency in writing. By the time set forth therefor in the Schedule of Performance (Attachment No. 6), the Developer shall prepare and submit to the City and Agency Executive Director construction drawings, landscape plans, and related documents for development of the Improvements. Any items so submitted and approved in writing by th-. Agency Executive Director shall not be subject to subsequent disapproval by the Agency Executive Director. Any disapproval shall state in writing all of the reasons for such disapproval. Any items properly disapproved by the Agency Executive Director shall be revised and resubmitted to the Agency Executive Director as 22 SF1s:G:SF-96ASne:DDA-1208 1219196 Agency Executive Director shall be revised and resubmitted to the Agency Executive Director as soon as reasonably possible. The landscaping and finished grading plans shall be prepared by a professional Iandscape architect or registered civil engineer who may be affiliated -Mth the same firm as the Developer's architect or civil engineer. During the preparation of all such drawings and plans, staff of the Agency and the Developer shall hold regular progress meetings to coordinate the preparation of, submission to, and review of drawings, plans and related documents by the Agency Executive Director. The staff of the Agency and the Developer shall communicate and consult informally as frequently as is necessary to insure that the formal submittal of any documents to the Agency Executive Director can receive prompt and speedy consideration. Following approval of such plans by the Executive Director of the Agency, they shall be processed by the City in connection with the issuance of grading, demolition, building and other like permits, as applicable. The Agency shall assist the Developer in securing the prompt processing of such plans and permits by the City. Nothing in this Section shall be construed as preempting or waiving any applicable planning review, public works, design review or other like requirements of the City. 23 SFIs:G.SF-96Agree:DDA-1208 12J8196 and Approvel 1 Construrlion Drawings and Related • /1 1 The Executive Director of the Agency shall have the right of architectural and planning review and approval of all plans and submissions submitted pursuant to Section 304, including any changes therein; provided, that the Agency Executive Director shall not unreasonably withhold his approval of any such plans and submissions, and shall approve or disapprove such plans and submissions within the time set forth in the Schedule of Performance. The Agency Executive Director shall not withhold approval of any plans which are a logical evolution of any previously approved plans and site drawings, nor shall the Agency Executive Director require modifications to any proposed plans that would require such plans to conflict with any previously approved plans or site drawings. In the event of any inconsistency between any site plans or preliminary plans or construction drawings and any final plans approved by the Agency Executive Director, such final plans shall control. Subject to the above, during each stage of the processing for the Improvements, the Agency shall have the right to require reasonable additional information and shall advise the Developer if any submittal of plans or drawings is not complete or not in accordance %%ith Agency procedures. If the Agency Executive Director reasonably determines that such a submittal to the Agency is not complete or not in accordance with such procedures, such tender shall not be deemed to constitute a submittal for purposes of satisfying the Schedule of Performance (Attachment No. 6). If the Developer desires to make any substantial changes in the construction plans after their approval by the Agency Executive Director, the Developer shall submit the proposed change to the Agency Executive Director for his approval. If the construction plans, as modified by the proposed change, conform to the requirements of this Section and the Scope of Development (Attachment No. 3) the Agency Executive Director shall approve the proposed change and notify the Developer in %ATiting within 30 days after submission to the Agency Executive Director. If any revisions to any plans approved by the Agency Executive Director are required by any governmental, public or quasi -public body, official, agency, department, bureau or entity having jurisdiction over the Site, then the Developer and the Agency Executive Director shall cooperate in efforts to obtain a waiver of such requirement or, in the absence thereof, shall revise the plans as necessary to meet such requirements. The Agency agrees, upon request from time to time by the Developer, to use its best efforts to cause the City to obtain an outside plan checker, at the Developer's expense, to expedite processing of Site approvals and permits. In addition, the Agency agrees, if requested by the Developer, to use its best efforts to cause the City to retain an independent engineer(s), at the Developer's expense, to expedite processing of the tentative map for the Site, and to retain an independent electrical inspector(s) and any other component system inspector(s) designated by the Developer, at the Developer's expense, to expedite inspections and approvals for the improvements to be constructed on the Site. If an outside plan checker(s), engineers) or 24 SF/s:G:SF-96Agree:DDA-1208 1219196 inspector(s) is (are) retained at the Developer's request, the Agency shall use its best efforts to cause the City to submit such persons for the Developer's reasonable prior approval, prior to selection of such outside plan checker(s), engineer(s) or inspector(s). 5. [§ 306]Cost of Development. Except as otherwise provided in this Agreement, all costs for planning, designing, and constructing the Improvements shall be bome exclusively by the Developer. Except as otherwise provided in this Agreement, the Developer shall also bear all costs related to discharging the duties of the Developer set forth in this Agreement. The Developer assumes the responsibility to construct and shall let contracts for or cause to be constructed all "Off -Site Public Improvements" which are required by City to be constructed in connection with the Developer's improvement of the Site. The Off -Site Public Improvements that the Developer is to construct or cause to be constructed are attached to the Scope of Development (Attachment No. 3). If any "Additional Off -Site Improvements" (as defined below) are validly required by the Agency or the City, the Developer shall, subject to the limitations below, be obligated to construct or cause the construction of such improvements and the Agency shall reimburse the Developer for all "Expenses" (as defined below) incurred in connection with planning, designing and constructing of such improvements. if the Agency or the City requires the Developer to construct any Additional Off Site Improvements, the Developer shall promptly obtain an estimate of the cost of designing and constructing such improvements and shall deliver such estimate to the Agency. If the Agency still wishes to have the Developer proceed with the design and construction of such improvements, it shall, Aithin thirty (30) days after receipt of such estimate, approve the scope of such work and the proposed costs thereof (together with a contingency for specified types and amounts of cost increases or overruns). If the Agency disapproves the proposed Additional Off -Site Improvements work within that period, then the Developer shall have no obligation to construct the applicable Additional Off -Site Improvements. The Agency shall pay to the Developer all Expenses incurred by the Developer in connection with the Additional Off -Site Improvements not later than thirty (30) days after the Developer's submission of (i) a signed demand for payment from the Developer certifying that the work for which payment is requested has been performed, and (ii) a certificate, opinion or other similar document from an architect or engineer acceptable to both the Developer and the Agency, in their reasonable discretion ("Approved Architect") (which certificate, opinion, advice or approval may rely upon the certificate, opinion, advice or approval of other licensed architects, engineers or government officials and may contain reasonable and customary assumptions or qualifications) stating that the work for which paym.-:it is requested has been performed. If such Expenses are not paid by &e Agency to the Developer when due, they shall thereafter bear interest at the Agreed interest Rate from the date due until the date paid. "Additional Off -Site Improvements" shall mean all improvements or work located outside the legal lot Iine of the Site ("Boundary of the Site") as shown on the Subdivision Map, or within the area of the Alley Parcel which is to be vacated in connection with development of the Site, which are not expressly identified in the Scope of Development as included within the maximum 25 SF/s:G.SF-96Agree:DDA-1208 1:1$196 required Off -Site Public Improvements, including, N%ithout limitation, All such street, seNver, water, storm drain, CATV, gas, electric, telephone and other utility improvements and/or relocations required outside the Boundary of the Site or in the Alley Parcel. Notwithstanding anything herein which is or appears to be to the contrary, the "Additional Off -Site Improvements" shall include any and all decorative paving or pavement required by the Agency or the City to be installed by the Developer outside the Boundary of the Site. The "Expenses" of constructing any Additional Off -Site Improvements shall mean all direct and indirect design, planning and construction costs, expenses or fees incurred in connection with any Additional Off -Site Improvements, including, without Iimitation, all engineering, legal, consultant, and architectural fees, all permit and bonding fees or costs, all points, fees and other financing costs, all interest charges and/or reserves, all insurance, management and inspection fees and costs, and the Developer's overhead costs, which shall be deemed equal to ten percent (10%) of all other costs and expenses incurred in connection with constructing the Additional Off -Site Improvements. The Agency shall not be responsible for reimbursing the Developer for any payments by the Developer to the Developer or any wholly - owned affiliate of the Developer which are in excess of the amount that would have been paid for such services in an arms length transaction between unrelated third parties acting under the same circumstances. In no event shall the Agency withhold or delay issuance of any Certificate of Completion because of the Developer's failure or refusal to construct any Additional Off -Site Improvements. Subject to the terms of this Agreement, the Developer shall be responsible for all fees associated with development of the Improvements, including, without limitation, traffic, library, school facilities and other impact fees. The Agency shall use its best efforts to assist the Developer in its efforts to minimize the amount of such fees. 6. [§ 307] Demolition of Site. Pursuant to the Prior DDA, the Agency demolished all buildings existing on the Site. Promptly following execution of this Agreement, the Agency shall complete the clearance of all asphalt, structures, foundations, tanks, and other improvements. Notwithstanding that all costs related to the demolition shall be ultimately borne by the Agency, the Developer may advance such costs on behalf of the Agency as such costs are incurred. All such advances and any other costs incurred by the Developer in connection with such clearance and demolition will be added to and became a part of the Developer Loan described in Section 201 [2] above and shall be deducted from the gross purchase price in connection with the determination of the Purchase Price pursuant to Section 201 [3] above. 26 5F1s:G:5F-96Agrec:DDA-1208 12/8/96 7. [§ 3081Construction SchedulE. Subject to extension pursuant to Section 603, the Developer shall commence and complete the Improvements by the respective times established therefor in the Schedule of Performance (Attachment No. 6). MMUM, F oM��� t . .• tip •. r off WwRar?� Except as otherwise provided in this Agreement, the Developer shall defend, assume all responsibility for and hold the Agency and the City, and their respective officers, agents and employees, harmless from all claims or suits for, and damages to, property and injuries to persons, including accidental death (including attorneys fees and costs), which may be caused by any of the Developer's activities under this Agreement, whether such activities or performance thereof be by the Developer or anyone (other than the City or the Agency, or any of their agents, employees or representatives) directly or indirectly employed or contracted with by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement. Prior to commencement of construction on the Site, the Developer shall take out and maintain during the life of this Agreement, a comprehensive liability policy in the amount of Two Million Dollars ($2,000,000.00) combined single limit policy, including contractual liability, as sl'.all protect the Developer, the City, and the Agency from claims for such damages. Insurance coverage furnished by the Developer pursuant to this Section 309 shall conform to this Section 309 and shall pertain to all activities on the Site and all work on any Off - Site Public Improvements or any Additional Off -Site Improvements. The Developer shall furnish the Agency a certificate of insurance from the insurer evidencing compliance with this Section 309 and providing that the insurer shall not cancel or modify the policy without thirty (30) days prior written notice to the Agency. The Developer shall ,give the Agency prompt and timely notice of any claim made or suit instituted with respect to the matters covered by such insurance. Coverage shall be primary and not contributing with any policy or coverage maintained by or obtained by the Agency, and an appropriate endorsement, if available, shall so state. The policy shall contain a waiver of subrogation, if available. The Developer shall comply with all of the provisions of the Workers Compensation Insurance and Safety Acts of the State of California applicable to development of the Site, the applicable provisions of Divisions 4 and S of the California Labor Code, and all amendments thereto, and all similar State or Federal acts or laws which are applicable, and the Developer shall hold the Agency and the City harmless from any claims arising thereunder from the Dcvelopees failure to so comply. The Developer shall furnish to the Agency a certificate of Workers Compensation insurance providing that the insurer shall not cancel or modify the policy without thirty (30) days prior written notice to the Agency. In the alternative, the Developer may show proof of a certificate of consent to self -insure issued by the Director of Industrial Relations according to California Labor Code Section 3800. 27 sr;1s:G:5FA6Agrce:DDA-1208 MM , • } 1 1 1' 1 it 11 - 1 i 1 111 Before commencement of construction or development of any buildings, structures or other works of improvement upon the Site by the Developer, the Developer shall secure or cause to be secured any and all permits which may be required by the City or any other governmental agency affected by such construction, development or work. Except as otherwise provided by this Agreement, such permits shall bc; secured at the Developer's own expense. Subject to the terms of this Agreement, it is understood that the Developer is obligated to pay all necessary fees and to timely submit to the City final drawings with final corrections to obtain building permits; the Agency will, without obligation to incur liability or expense therefor, use its best efforts to expedite issuance by the City of building and other required permits and certificates of occupancy for construction that meets the requirements of the Huntington Beach Municipal Cade. Subject to the limitations of this Agreement, the Developer shall be required to comply with all conditions of approval of all zoning changes, general plan amendments, subdivision maps, conditional use permits or any other land use approvals and all costs of compliance shall be at the sole expense of the Developer. The Developer shall be required to comply with the requirements of the California Environmental Quality Act, California Public Resources Code Section 21000, . ("CEQA"). If such compliance with CEQA results in the imposition of any conditions or mitigation measures not already contemplated by this Agreement, then, at the Developer's written election, this Agreement shall terminate and be of no further force or effect, and the Prior DDA shall be reinstated in full force and effect, the parties shall proceed with processing and development of the Improvements contemplated by the Prior DDA, as modified by subsequent City -approved entitlements or plans, as quickly as reasonably possible, and the Agency and the Developer shall be entitled to assert all rights and enforce all obligations arising from or contained in the Prior DDA. 10. [§ 311]Riuvhts of Access. For the purpose of assuring compliance with this Agreement, representatives of the Agency and the City shall have the right of access to the Site without charges or fees, at normal business hours during the period of construction on the Site for the purposes of this Agreement, including, but not limited to, the inspection of the work being performed in constructing the Improvements, so long as they comply with all safety rules and do not interfere with the work of the Developer, or its contractors, agents or representatives. Such representatives of the Agency or of the City shall be those who are so identified in writing by the Director of the Agency. The Agency shall indemnify, defend and hold the Developer, and its Representatives harmless from any Liabilities arising out of the activities of the Agency and the City referred to in this Section 311. The Developer shall place and maintain on the Site signs indicating the respective roles of the Developer and the Agency in the construction of the Improvements. The cost of the signs and their installation shall be borne solely by the Developer and shall comply with all applicable City sign codes. 28 SFIs: G:SF-96Agm: DDA-1208 1218."96 11. [§ 312]Local. State and Federal Laws. The Developer shall perform under this Agreement and carry out its performance under this Agreement, including without limitation the construction of the Improvements, in conformity with all applicable federal and state laws and local ordinances, including all applicable federal and state labor standards, as to the Site, provided, however, the Developer and its contractors, successors, assigns, transferees, and lessees are not waiving their rights to contest any such laws, rules or standards. 12. [§ 313]Anti-Discrimination. Pursuant to Sections 33435 and 33050 of the California Community Redevelopment Law, the Developer, for itself and its successors and assigns, agrees that in the construction of Improvements on the Site or other performance under this Agreement, the Developer wrill not discriminate against any employee or applicant for employment because of sex, marital status, race, color, religion, ancestry, or national origin. U 1I 1=11 ON WMIM i 1! i . 1 1 1 1 1 F MOUNN / 1 .1111'll ' 1 1� , ' 1f"1 1 r, 1 {11 ' = Mortgages, deeds of trust and sales and leases -back are permitted before completion of the construction of the Improvements, but only for the purpose of securing loans of funds to be used for financing the acquisition of the Site, the construction and operation of Improvements on the Site, and any other purposes necessary and appropriate in connection with development under this Agreement. The Developer shall notify the Agency in advance of any mortgage, deed of trust or sale and lease -back financing, if the Developer proposes to enter into the same before issuance of a Certificate of Completion for the affected improvements. The term "mortgage" as used hereinafter shall include a deed of trust and sale and lease -back. Prior to issuance of a Certificate of Completion for the affected Improvements, the Developer shall not enter into any conveyance for financing (other than any financing approved in connection uith the Agency's approval of the Developer's evidence of financing pursuant to Section 215), without the prior written approval of the Agency, which approval the Agency agrees to give if any such conveyance for financing is given to a responsible financial or lending institution or other financially responsible person or entity and is for the purposes stated above. G�L:Fmin, ro - .. /1.J11�t%ll•1� 1 1 1. 11 . 11 - 1 The holder of any mortgage or deed of trust authorized by this Agreement shall not be obligated by the provisions of this Agreement to construct or complete the Improvements or to guarantee such construction or completion; nor shall any covenant or any other provision in this Agreement or any grant deed for the Site be construed so to obligate such holder. Nothing in this Agreement shall be construed to permit or authorize any such holder to devote the Site to 29 5f/s:G:SF-96Agrce:DDA-1208 t219196 any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. u� �- i g no mrsas in m cm, a sTo ra-�, s m, i n, a a in-r-mram a With respect to any mortgage or deed of trust granted by the Developer as provided herein, whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer in completion of construction of the Improvements, or otherwise under this Agreement, the Agency shall at the same time deliver to each holder of record of any mortgage or deed of trust authorized by this Agreement a copy of such notice or demand. Each such holder shall (insofar as the rights of the Agency are concerned) have the right, at its option, within thirty (30) days after expiration of the cure period applicable to the Developer under this Agreement, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage; provided, that if the default cannot with diligence be remedied or cured, or the remedy or cure cannot be commenced, within such thirty (30) day period, such holder shall have such additional time as is reasonably necessary to remedy or cure such default by the Developer. If such default shall be a default which can only be remedied or cured by such holder upon obtaining possession, such holder shall have the right to seek to obtain possession with diligence and continuity through a receiver or otherwise, and shall have the right to remedy or cure such default after obtaining possession within such time as is reasonably necessary to cure such default. Any such holder shall not be required to cure any default of the Developer which is incurable in order to exercise its rights under this Section 317. Nothing contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Improvements (beyond the extent necessary to conserve or protect the Improvements or construction already made) without first having expressly assumed the Developer's obligations to the Agency by written agreement satisfactory to the Agency. The holder, in that event, must agree to complete, in tl:e manner provided in this Agreement, the Improvements to which the lien or title of such hold;: relates, and submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of Section 322 of this Agreement, to a Certificate of Completion (as therein defined.). 30 SF1s:G:SF-96Agrcc: DDA-12Q8 1219/96 4. [§ 318] Failure of Holder to Complete Imprqvements, In any case where, thirty (34) days after the Developer's uncured default in completion of construction of the Improvements under this Agreement and the holder's receipt of the notice of said default by the Developer in completion of construction of Improvements under this Agreement, the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Site or any part thereof has not exercised the option to commence curing such default, or, if it has exercised its right to cure such default, such holder is not proceeding diligently with construction, the Agency may purchase the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership of the Site or any part thereof has vested in the holder, the Agency, if it so dcsires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: (1) The unpaid mortgage or deed of trust debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (2) All expenses with respect to foreclosure; (3) The expenses, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Site or part thereof; (4) The costs of any improvements made by such holder; and (5) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt at the time incurred and such debt had continued in existence to the date of payment by the Agency; less (6) Any income derived by the lender from operations conducted on the Site following the foreclosure (the receipt of principal and interest payments in the ordinary course of the lender's business shall not constitute income from the purposes of this subsection (6)). In the event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the construction of the Improvements on the Site or any part thereof and if the holder of any mortgage or deed of trust has not exercised its option to construct those improvements, the Agency may cure the default. In such event, the Agency shall be entitled to reimbursement from the Developer of all proper costs and expenses associated with and attributable to the curing of the mortgage or deed of trust default or breach of this Agreement by 31 $F/s:G:SF-96Agrce: DDA-1208 1219/96 the Developer and incurred by the Agency in curing such default; provided, however, that in exercising its rights under this sentence the Agency shall be required to act in a manner which will mitigate its damages in the event of such breach by the Developer. The Agency shall also be entitled to a lien upon the Site to the extent of such incurred costs and disbursements. Any such lien shall be subject to the prior construction financing mortgages or deeds of trust. C. [§ 320]]iigPeres. After the Conveyance of title and prior to the issuance of a Certificate of Completion for the affected portion of the Site, and after the Developer has had written notice and has failed after a reasonable time, but in any event not less than thirty (30) days, to challenge, cure, adequately bond against, or satisfy any liens or encumbrances on the uncompleted portion of the Site which are not otherwise permitted under this Agreement, the Agency shall have the right but no obligation to satisfy any such liens or encumbrances; provided, however, that nothing in this Agreement shall require the Developer to pay or make provisions for the payment of any tar, assessment, lien or charge so long as the Developer in good faith contests the validity or amount thereof, and so long as such delay in payment does not subject the applicable portion of the Site to forfeiture or sale, without the right to redeem. D. [§ 321]Additional Amendment. The Agency agrees not to unreasonably withhold approval of any modification or amendment to this Agreement as may be requested by the holder or prospective holder of any deed of trust or mortgage encumbering any portion of the Site, or any interest therein. The Agency acknowledges that such amendments may, from time to time, be necessary to induce a lender to loan funds in connection with the development or operation of the Site, and that different lenders may have specific requirements or requests relating to receipt of notice, opportunity to cure, and other similar matters pertaining to its security and its remedies upon a default by the Developer. Any such modification or amendment to this Agreement shall be prepared by the Developer at no cost to the Agency. E. [§ 322]C=ifica1e of CornDIdon. Promptly after the completion of all of the Improvements to be constructed on the Site (excluding any tenant improvements) in conformity with this Agreement (as determined by the Executive Director of the Agency), upon the written request of the Developer, the Executive Director of the Agency shall furnish the Developer with a Certificate of Completion (in the form attached hereto as Attachment No. 9) for the Site. Such Certificate of Completion shall be a conclusive determination of satisfactory completion of the construction required by the Agreement upon the Site and the Certificate of Completion shall so state. After the recordation of such Certificate of Completion, any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Site shall not (because of such ownership, purchase, lease or acquisition), incur any obligation or liability under this Agreement, except that such party shall be bound by any then effective covenants contained in the Grant Deed applicable to the Site or portion thereof acquired by such party. 32 SF/s:G:SF 96Agme:DDA-1208 I219/96 The Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder's Office for the County of Orange. If the Agency refuses or fails to furnish a Certificate of Completion as to the Site after written request from the Developer, the Agency shall, within thirty (30) days of the written request, provide the Developer with a written statement of the reasons the Agency refused or failed to furnish the Certificate of Completion. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain the Certificate of Completion. If the reason for such refusal is confined to the failure to complete specific items of construction, landscaping, and/or other items, all of which shall not affect the ability of the Improvements to be safely inhabited, the Agency will issue its Certificate of Completion upon the posting of a bond or other security acceptable to the Agency by the Developer with the Agency in an amount representing the fair value of the work not yet completed. In no event shall the Agency unreasonably withhold or delay the issuance of a Certificate of Completion. The Certificate of Completion (Attachment No. 9) is not a notice of completion as referred to in Section 3093 of the California Civil Code. The Agency also agrees not to unreasonably withhold a separate Certificate of Completion for any separate Lot within the Site with respect to which the Developer has completed all required Improvements (even though the improvement of the entire Site has not been completed); provided, that the Developer shall not then be in default with respect to construction of the remaining Improvements and the issuance of such partial Certificate of Completion shall not unreasonably interfere with the Agency's expectation of completion of all of the Improvements required to be constructed on the Site. Each such partial Certificate of Completion shall also be in the form of Attachment No. 9 and shall, with respect to the Lot affected by the partial Certificate of Completion, have the same purpose and effect as the Certificate of Completion for the entire Site has with respect to the entire Site. Issuance of the Certificate of Completion shall be an administrative act and is hereby authorized by action of the Executive Director without the necessity for separate approval by the Agency Board. IV. [§ 400]USE OF THE SITE. In accordance with the terms of this Agreement, the Developer shall develop on and adjacent to the Site all on -site Improvements and those Off Site Public Improvements required by the City to be constructed in connection with the on -site improvements pursuant to the terms of this Agreement, including the Scope of Development (Attachment No. 3). •'1 :s 33 SF/s:G:SF-96Agrce:DDA-1208 12/9/96 The Agency shall be responsible for satisfying outside of the Site all affordable housing requirements arising directly or indirectly from or otherwise related to development of the Site or the construction of the Improvements thereon, regardless of whether such affordable housing requirements arise from state laws or regulations, City ordinances, requirements or conditions, or from any other source or cause. The Agency shall indemnify, defend and hold the Developer and the Site harmless against any affordable housing requirements applicable to the Site or Improvements, and in no event shall the Developer be required to create, fund or assist in any way with the provision of affordable housing as a result of its development of the Site. All residential units construct--d on the Site may be leased or sold at unrestricted market levels by the Developer. C. [§ 403] Parking Garace. The Developer shall construct a subterranean parking structure (the "Parking Structure") on the Site, as described and set forth in the Scope of Development (Attachment No. 3). With respect to the first 262 parking spaces required for the Site by the Land Use Entitlements, Developer shall satisfy that requirement at its sole cost and expense by constructing those spaces on the Site. If the Land Use Entitlements require provision of more than 262 parking spaces on the Site, Agency may, at its sole discretion, consider assisting the Developer in satisfying any parking requirement not met by Developer's construction of parking spaces on the Site through participation in the In Lieu Fee Parking Program established by Agency Resolution No. 268, or successor resolutions, for no more than 40 additional spaces. D. [§ 404]Commercial Development. The Developer shall develop approximately forty-one thousand (41,000) square feet of commercial space as set forth in the Scope of Development (Attachment No. 3) on the Site. The Developer shall, from time to time, meet and consult with the Agency concerning development and implementation of a marketing plan for the Retail and Office space on the Site, and shall provide the Agency with copies of such documentation setting forth that plan as the Agency may reasonably request; provided, all such documentation shall be held by the Agency in confidence and the Developer shall not be required to provide any confidential financial information in connection therewith. 34 SFIs:G:SF-96AVft:DDA-1208 12"9N6 . . 1 1 Q O! " 1 M • 111 ' 1 + . 1 M1 i 11 1 1 The Developer covenants and agrees for itself, and its successors, its assigns, and every successor in interest to the Site or any part thereof that, during the term of the Redevelopment Plan, the Developer and such successor and assigns shall not devote the Site to any uses other than those permitted by the Redevelopment Plan as of the date of this Agreement, the Grant Deed (Attachment No. 7); and this Agreement, including the Scope of Development attached hereto. The foregoing covenants shall run with the land. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person claiming under or through it 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 Site. The foregoing covenants shall run with the land. The Developer shall refrain from restricting the rental, sale or lease of the Site and Lots on the basis of race, color, creed, religion, sex, marital status, handicap, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: a. 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 race, color, creed, religion, marital status, handicap, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Iand herein conveyed, nor shall the grantee 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 %%ith reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." b. 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 a;.cepted upon and subject to the following conditions: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, handicap, ancestry or national origin in the Ieasint;, 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 vendces in the premises herein leased." 35 SF/s:GSF-96Agr=DDA-1208 12NI96 C. In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, handicap, ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee 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, Iocation, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendecs of the premises." Subject to Sections 322 and 406, the covenants established in this Agreement and the deed of conveyance for the Site shall, without regard to technical classification and designation, be binding for the benefit and in favor of the Agency, its successors and assigns, the City, and any successor in interest to the Site, or any part thereof. Notwithstanding the issuance of a Certificate of Completion for the Site, the covenants against racial discrimination shall remain in effect in perpetuity. 4ROMLOK1141WHO MHOf The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private. Such covenants are established by and enforceable only by the Agency, and are not intended to create any third party beneficiary and may not be enforced by any person or entity other than Agency. The Agreement and the covenants shall run in favor of the Agency, ivithout regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Site or in the Project Area. The Agency shall have the right, if the Agreement or covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement and covenants may be entitled. Notwithstanding any other provisions of this Agreement to the contrary, all of the covenants of the Developer contained in this Agreement with respect to the Site (excepting only the covenants against discrimination) shall terminate and be of no further force or effect as to the Site (or any Lot thereof, as applicable), upon the issuance of a Certificate of Completion for the Site or such Lot, and thereafter all rights, obligations, and covenants of the parties with respect to the Site or such Lot shall be as set forth in the Grant Deed. NoWithstanding issuance of a Certificate of Completion for the Site, the Developer and its successors and assigns shall still be required to maintain the Site and perform all other obligations in accordance with the standards set forth in the Grant Deed. Issuance of a Certificate of Completion shall not waive, limit, or terminate any obligation of a party to return or release any deposit or security pursuant to the terms of this Agreement, repay any amounts due to the Developer pursuant to the terms of the Developer's Loan described in this Agreement, or to limit the scope of any indemnity obligation which has accrued or which, by its terms, remains applicable following the Certificate of Completion. 36 sFIs:G:SF-96Agree:DDA-120$ 1219,"96 V. i§ S00]DEFAULTS AND REMEDIES. A. [§ 501)Drfaults -- Qgneral. Subject to the extensions of time provided by Section 603, failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. A party claiming a default shall give %witten notice of default to the other party, specifying the default complained of and the actions required to correct such default. The party asserting the default shall not institute proceedings against the other party if the other party, within thirty (30) days from receipt of such notice, commences to cure, correct or remedy such failure or delay and completes such cure, correction or remedy as soon as reasonably practicable after receipt of such notice. B. [§ 5021Leg_al Actions. 1. [§ 503] Institution of Legal Actions. In addition to any other rights or remedies and subject to the restrictions in Section 501, either party may institute legal action to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any default, to recover damages for any default, or to obtain any other legal or equitable remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Orange, State of California, in an appropriate municipal court in that county, or in the Federal District Court in the Central District of California. 2. [§ 504] Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon the managing member of the Developer and shall be valid whether made within or without the State of California or in such other manner as may be provided by law. Service on the foregoing natural person accomplished by or on behalf of the Agency shall be deemed to effect service on the Developer (and all its constituent members) to the greatest extent permitted by law. 37 SHs:G.SF-96Agrce:DDA-1208 1219,96 C. [§ 506]U!hts and Remedies Are Cilmulative. Except as otherwise provided expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Without limiting the generality of the foregoing, the right of either party under Section 511 or 512 to terminate this Agreement due to a default by the other party shall not be deemed to prohibit or limit the right of the party entitled to termination to sue for specific performance, damages, and all other appropriate relief. D. [§ 507]jn�ction Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. AMMI-SM. FOn 1. [§ 509]12amagu. If any default is not cured or commenced to be cured by the defaulting party within the time provided in Section 501 above, then, subject to the limitations of Section 512 below concerning liquidated damages, the defaulting party shall be liable to the other party for any damages caused by such default. 2. [§ 510]Specific_Performance. If any default is not cured or commenced to be cured by the defaulting party within the time provided in Section 501 Above, then, subject to the limitations of Section 512 below concerning liquidated damages, the non -defaulting party at its option may thereafter (but not before) commence an action for specific performance of the terms of this Agreement. In the event that, prior to the Conveyance: a. The Agency does not tender conveyance of the Site, in the manner and condition, and by the date established in the Schedule of Performance (Attachment No. 6) for the Conveyance, and any such failure shall not be cured within the period provided in Section 501; b. The Developer determines, in its reasonable discretion, that the condition of the soils on or under the Site (other than the presence of Hazardous Substances) is 38 SFIs:G:SF-96Agree:DDA-1206 1219196 not suitable for the uses to which the Site is to be put, and such condition is not cured to the Developer's reasonable satisfaction within a reasonable period of time by the Agency after written demand by the Developer, or the cost of Remediation of Hazardous Substances exceeds the Remediation Cost Cap, and the Agency mill not pay for the costs in excess of the Remediation Cost Cap; C. The Developer is unable, notwithstanding its diligent efforts, to obtain financing, acceptable to the Developer, for the acquisition and development of the Site; d. Any of the Conditions Precedent to the Developer's performance of its obligations has not been satisfied (or waived by the Developer) by the time provided in the Schedule of Performance (as the same may be extended pursuant to Section 603) except those conditions which are to be performed by the Developer; or e. Any conditions or mitigation measures requiring the expenditure of funds by the Developer (and not otherwise already imposed on the Developer pursuant to this Agreement) are required of the Developer in connection with development of the Site as a result of en-.ironmental review of the proposed development and Agency fails to assume responsibility for payment of all costs and expenses related thereto; then, at the option of th-. Developer, upon written notice to the Agency, all provisions of this Agreement shall terminate and be of no further force and effect, the Developer Deposit, all Ietters of credit, guaranties or other security or funds posted by the Developer, and all funds payable to the Developer upon such termination, shall be immediately returned to or paid to the Developer, as applicable; and thereafter, neither the Agency nor the Developer shall have any further rights against or liability to the other with respect to this Agreement (except that the Developer does not, in such event, waive any legal or equitable rights or remedies it may have against the Agency for the Agency's default or failure to the return any documents or pay any funds to which the Developer is then entitled). 39 SFIs:G.SF-96Agree:DDA-1208 12J9I46 4. [§ 5121 TPrmination_hY-& Agency Priorto the Conveyance. In the event that, prior to the Conveyance: a. The Developer (or any successor in interest) assigns or attempts to assign the Agreement or any rights therein or in the Site in violation of this Agreement and such action is not cured within the period provided in Section 501; or b. There is a change in tale ownership of the Developer contrary to the provisions of Section 107 hereof and such action is not cured within the period provided in Section 501; or C. The Developer does not submit certificates of insurance, construction plans, drawings and related documents as required by this Agreement, in the manner and by the dates respectively provided in this Agreement (as the same may be extended pursuant to Section 603) and such default or failure is not cured within the period provided in Section 501; or d. The Developer fails to countersign the Grant Deed (Attachment No. 7) by the time established in the Schedule of Performance (Attachment No. 6) (as the same may be extended pursuant to Section 603) for the Site Conveyance and such failure is not cured within the time provided in Section 501; or e. Any of the Conditions Precedent to the Agency's performance of its obligations has not been satisfied by the time established therefor in the Schedule of Performance (as the same may be extended pursuant to Section 603), except those conditions which are to be performed by the Agency; or f. The Developer does not take title to the Site upon tender of conveyance by the Agency pursuant to this Agreement and following satisfaction of all Conditions Precedent thereto, and such failure is not cured within the time provided in Section 501; or 9. The Developer is other%%ise in default under this Agreement and such default has not been cured within the time provided in Section 501; then, at the option of the Agency, upon written notice to the Developer, this Agreement shall be terminated, and thereafter neither party shall have any further rights against the other under this Agreement (except that, subject to the limits of the following paragraph, the Agency does not in such event waive any legal or equitable rights or remedies it may have against the Developer for the Developer's default). IN THE EVENT OF TERMINATION UNDER SECTION 512(a) TO (d), INCLUSIVE, (f) OR (g), THE DEVELOPER DEPOSIT OF $50,000, AS SET OUT IN SECTION 109, SHALL BE RETAINED BY THE AGENCY AS LIQUIDATED DAMAGES AS THE SOLE AND 40 Sr1s:G:SFA6Agree:DDA-1208 12/9196 L—_-- EXCLUSIVE REMEDY, AT LAW OR IN EQUITY, OF THE AGENCY HEREUNDER. IN THE EVENT OF TERMINATION, THE AGENCY WOULD SUSTAIN DAMAGES BY REASON THEREOF THE AMOUNT OF WHICH WOULD BE UNCERTAIN. SUCH DAMAGES WOULD INVOLVE SUCH VARIABLE FACTORS AS THE DELAY OR FRUSTRATION OF TAX REVENUES THEREFROM TO THE CITY AND THE AGENCY, THE DELAY OR FAILURE OF THE AGENCY TO FURTHER THE IMPLEMENTATION OF THE REDEVELOPMENT PLAN, AND LOSS OF OPPORTUNITY TO ENGAGE IN OTHER POTENTIAL TRANSACTIONS, RESULTING IN DAMAGE AND LOSS TO THE AGENCY. IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO FIX THE AMOUNT OF SUCH DAMAGES TO THE AGENCY, BUT THE PARTIES ARE OF THE OPINION, UPON THE BASIS OF ALL INFORMATION AVAILABLE TO THEM THAT THE TOTAL OF SUCH DAMAGES WOULD APPROXIMATELY EQUAL THE AMOUNT OF THE GOOD FAITH DEPOSIT (WITfI ANY ACCRUED BUT UNPAID INTEREST THEREON), AND SUCH AMOUNT SHALL BE RETAINED BY THE AGENCY UPON TERMINATION AS THE TOTAL OF ALL LIQUIDATED DAMAGES FOR ANY AND ALL SUCH DEFAULTS AND NOT AS A PENALTY, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES BEING HEREBY EXPRESSLY. WAIVED BY AGENCY. AGENCY HEREBY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389. IN THE EVENT THAT THE DEVELOPER SHOULI) CHALLENGE THE APPLICABILITY OR EFFICACY OF THIS PARAGRAPH OR IF THIS PARAGRAPH SHOULD BE HELD TO BE VOID FOR ANY REASON, THE AGENCY SHALL BE ENTITLED TO THE FULL EXTENT OF DAMAGES OTHERWISE PROVIDED BY LAW. THE DEVELOPER AND THE AGENCY SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR INITIALS BELOW: ..r Developer Initial Here In the event of a termination pursuant to Section 512(e), the Developer Deposit shall be returned to the Developer. In the event of a termination under Section 512(a) to (g), all letters of credit, guaranties or other security or funds posted by the Developer, other than the Developer Deposit, and all other funds payable to the Developer upon termination of this Agreement, shall be immediately returned to or paid to the Developer, as applicable. SFIs:G:SF-96Agr":DDA-1208 1219/96 41 b. 1. [§ 514]Termination and Damages_. After the Conveyance, if any default is not cured within the period provided in Section 501, the defaulting party shall be liable to the other party for any damages caused by such default. 2. [§ 5151 Action fQr Specific Performance. After the Conveyance, if any default is not cured within the time provided in Section 501, the defaulting party at its option may institute an action for specific performance of the terms of this Agreement. Subject to the provisions of Section 322, the Agency has the additional right, at its option, to terminate this Agreement and, upon such termination, to reenter and take possession of the Site, or the portion thereof for which a Certificate of Completion has not been issued, with all Improvements thereof, and terminate and revest in the Agency the estate conveyed to the Developer, if after conveyance of title to the Site and prior to the recordation of a Certificate of Completion for the affected portion of the Site, the Developer (or its successors in interest) shall: 1. Fail to start the construction of the Improvements as required by this Agreement for a period of sixty (60) days after %vritten notice thereof from the Agency (as the same may be extended pursuant to Section 603); or 2. Abandon or substantially suspend construction of the Improvements required by this Agreement once commenced for a period of sixty (60) days after written notice thereof from the Agency (as the same may be extended pursuant to Section 603); or 3. Transfer or suffer any involuntary transfer of the Site, or any part thereof, in violation of this Agreement and such violation shall not be cured within sixty (60) days after the receipt of written notice thereof by the Agency to the Developer (as the same may be extended pursuant to Section 603); but 4. Notwithstanding the time limitations in subsections (1), (2) and (3), so long as the Developer is proceeding with reasonable diligence to correct or cure any cause set forth in such subsections, such time limitations shall be extended for the time necessary to complete such correction or cure. Such right to reenter, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid or limit: 1. Any mortgage or deed of tru3t permitted by this Agreement; or 42 SF/s:G:SF 96Agr=DDA-1248 1219M6 2. Any rights or interests provided in this Agreement for the protection of the holders of such mortgages or deed of trust. The Grant Deed (Attachment No. 7) shall contain an appropriate reference and provision to give effect to the Agency's right as set forth in this Section 516, under specified circumstances and prior to recordation of any Certificate of Completion, to terminate this Agreement and to reenter and take possession of the applicable portion of the Site, with all Improvements thereon, and to terminate and revert in the Agency the estates conveyed to the Developer in such portion of the Site. Upon revesting in the Agency of title to the affected portion of the Site as provided in this Section 516, the Agency shall use its best efforts to resell the Site as soon and in such mariner as the Agency shall find feasible and consistent with the objectives of the state redevelopment law and of the Redevelopment Plan, as it may be amended, to a qualified and responsible party or parties (as determined by the Agency) who will assume the obligation of making or completing the Improvements, or such other improvements in their stead as shall be satisfactory to the Agency or who will assume the ownership, management, and operation of the Site all in accordance with the uses specified herein and specified for the Site or part thereof in the Redevelopment Plan. Upon such resale of the Site, the proceeds thereof shall be applied: 1. First, to reimburse the Agency, on its own behalf or on behalf of the City, for all costs and expenses incurred by the Agency, including, but not limited to, any expenditures by the Agency or the City in connection with the recapture, management and resale of the Site or part thereof (but Iess any income derived by the Agency from the Site or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Site or part thereof which the Developer has not paid (or, in the event the Site is exempt from taxation or assessment or such charges during the period of ownership thereof by the Agency, an amount, equal to such taxes, assessments, or charges as would have been payable if such area were not so exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Site or part thereof at the time of revesting of title thereto in the Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer; any expenditures made or obligations incurred with respect to the making or completion or operation and management of the Improvements or any part thereof on the Site, or part thereof; and any amounts otherwise owing the Agency by the Developer and its successor or transferee; and in the event additional proceeds are thereafter available, then; 2. Second, to reimburse the Developer, its successor or transferee, up to the amount equal to the sum of. (a) the Purchase Price paid to the Agency by the Developer for the Site; and (b) the costs incurred by the Developer for the development of the Site, and for the Improvements existing on the Site at the time of the reentry and repossession, including costs for plans, reports, studies and other like matters; and (c) all funds advanced by Developer in connection with acquisition of the Third Party Parcels or clearance, environmental testing and 43 SFls:G:ST-96Agree:DDA-120& 12.'9196 remediation of the Site; less, (d) any net gains or income withdrawn or made by the Developer from the Site or the Improvements thereon. Any balance remaining after such reimbursements shall be retained by the Agency as its sole property. The rights established in this Section 516 are to be interpreted in light of the fact that the Agency will convey the Site to the Developer for development and operation for the purposes herein specified and not for speculation in undeveloped land. VI. [§ 601]GENERAL PROVISIONS. • •1 � i-u �� �� cur � r� Z.�� �'.r Written notices, demands and communications between the Agency and the Developer shall be sufficiently given if delivered by hand, dispatched by reputable overnight courier service, or dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the Agency and the Developer at the addresses specified in Sections 105 and 106, respectively. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section 601. Any written notice, demand or communication shall be deemed received immediately if delivered by hand, shall be deemed received on the first working day following dispatch if delivered by overnight courier service, and shall be deemed received on the third (3rd) day from the date it is postmarked if delivered by registered or certified mail. B. [§ 602]snflicts ofIaterest. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any member, official or employee of the Agency participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts or omissions of the other party; acts or failures to act of the City of Huntington Beach or any other public or 44 SF1s:G:SF-96ASme:DDA-120$ 119196 governmental agency or entity (provided that the acts or failures to act of the City shall not excuse performance by the Agency); or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within sixty (60) days of the commencement of the cause, or from delivery of such notice if delivered after such sixty (60) day period. Times of performance under this Agreement may also be extended in writing by the mutual agreement of the Agency and the Developer. D. [§ 604]Non-Liibility- of Qfficials and Employees of the Agency and the 2o• No member, official or employee of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the Agency or the City or for any amount which may become due to the Developer or its successors, or on any obligation under the terms of this Agreement. No officer, director, member, or employee of the Developer, or officer, director, member, or employee of any partner of the Developer, shall be personally liable to the Agency or the City, or any successor in interest, in the event of any default or breach by the Developer or for any amount which may become due to the Agency or the City on any obligation under the terms of this Agreement. This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. This Agreement includes pages 1 through 48 and Attachments 1 through 11 which constitutes the entire understanding and agreement of the parties. Subject to the limitation set forth bclow, this Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. Notwithstanding anything in this Agreement which is or appears to be to the contrary, in the event that all Land Use Entitlemerts required by the Developer to proceed with the Improvements described in the Scope of Development are not obtained by the date set forth in the Schedule of Performance and in the form contemplated by and acceptable to the Agency and the Developer, then, at the Developer's written election, this Agreement shall terminate and be of no further force or effect, the Prior DDA shall be reinstated in full force and effect, the parties shall proceed wit1i processing and development of the Improvements contemplated by the Prior DDA, as modified by subsequent City -approved entitlements or plans, as quickly as reasonably possible, and the Agency and the Developer shall be entitled to assert all rights and enforce all obligations arising from or contained in the Prior DDA. 45 SF/s:G:SF-96Agne:DDA-1208 12M96 All waivers of the provisions of this Agreement must be in writing by the appropriate authorities of the Agency and the Developer, and all amendments hereto must be in writing by the appropriate authorities of the Agency and the Developer. Except as otherwise expressly provided herein, when any consent or approval is required from or by another party, such party shall act reasonably and shall not unreasonably withhold or delay such consent or approval. The parties hereto shall execute and cause a Memorandum of Amended and Restated Disposition and Development Agreement attached hereto as Attachment No. 11 and incorporated herein to be recorded in the Official records of Orange County, California within thirty (30) days after the Effective Date of this Agreement. G. [§ 607] Counterparts. This Agreement may be executed in counterparts. VII. [§ 700]TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY. This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency within forty-five (45) days after the date of execution and submission of one (1) copy of this Agreement by the Developer or this Agreement shall be void, except to the extent that the Developer shall consent in writing to a 46 SVs:G:SFA6Agrcc:DDA-1208 12/9196 further extension of time for the authorization, execution and delivery of this Agreement. The date of this Agreement shall be the date when it shall have been signed by the Agency. IN WITNESS N HEREOF, the Agency and the Developer have signed this Agreement as of the date set forth below. DATED: December 16, 1996 REVIEWED AND APPROVED: Y' Name• € - t R Its: Executive Director of the Agency By: Name: C� Its: Director of Economic Development of the Agency APPROVED AS TO FORM: s Lqt, Agency Attorney T /SF/s:G:SF-96Agree:DDA-I208 �/ 12)9146 "AGENCY" REDEVELOPMENT AGENCY OF THE Cl HUNTINGTON BEACH, a public body cc and politic / By: Name: Its: Chairman ATTEST: 0 JT DEVELOPMENT COMPANY, LLC, a California Limited Liability Company By: John Tsai Member By: John TiIIotson By; Managing Member Mike Roberts Member 48 S F1s:G:SF-96Agrcc: DDA-1208 121'9/96 ATTACHMENT NO.1 SITE MAP FJs:G:SF-96Agrx:atch 1248 12M 96 Attachment Si T`�? W - *,.v �........=..r�� 1 zz 117 .� 18 16 1-� • 101 18 < 20 r { sr • .� r -. � . � . tit fil =z � rni9' r 2 I `' • ♦• ��' ` a� . '1 4 8 i i �pf t }t •-j�..-?? �y���J .; /� r Z ter. �* 1� MEW r ia _Jac ! f Irr / 15 33 25; 14 ♦S 1 3� 4 M 1 t I Is lc: G r :t_ 737 1 ••`�� !! .+rs�. witLlu%rr �4•JEuvE 07-09-90 A`TAr-.VJl-rh NO. 1 041r8u/2450/43 Pitie 1 of 1 ATTACHMENT NO.2 LEGAL DESCRIPTION OF THE SITE Block 304 of Huntington Beach Tract, County of Orange, as per map recorded in Book 3, page 36 of Miscellaneous Maps in the Office of the County Recorder of said county. F1s:G:SF-96Ag=:atch 1209 I M6 Attachment 2 ATTACIU%IENT NO.3 SCOPE OF DEVELOPMENT The Improvements shall contain approximately 80,000 square feet of residential space consisting of approximately 48 town home style units ranging from approximately 1,450 to 2,100 square feet in size. The Improvements will include approximately 41,000 square feet of commercial space divided into 11,000 square feet of office on the second floor fronting Main Street, at least 4,500 square feet of restaurant located at the corner of Main Street and Olive Avenue and the balance shall be devoted to retail commercial uses. The configuration of the Improvements, And the exact number and mix of residential units and commercial square footage shall be determined pursuant to the terms and conditions of the Land Use Entitlements. The Improvements will provide two hundred fifty-two (252) parking spaces, with the exact number of parking spaces to be determined pursuant to the terms and conditions of the Land Use Entitlement, and subject to the Developer's elections pursuant to Section 403 of this Agreement. Parking spaces shall be constructed in a "ramp" configuration which will provide one semi - subterranean Ievel, one level below grade and one level above grade. Access for the commercial parking spaces shall be on Olive and Orange Avenues and the residential parking will have a separate entrance from Fifth Street. There shall be no vehicular access between the commercial and residential parking areas. The residential portion of the structure Hill also incorporate the necessary elevators, stairs and lobbies to provide secure and convenient access for residents, guests and emergency service providers. Attachment 3 Page 1 of 2 FIs:G.SF-96Agmc-.wch 1208 12l9196 The Improvements will be constructed consistent with the Downtown Design Guidelines adopted by the City and be of a Mediterranean design incorporating specific architectural details such as smooth stucco walls, balconies with wrought iron railing, tile roofs and life detailing, awning and at least one water feature. They shall incorporate landscape and hardscape elements associated with the style. The Improvements will incorporate a public art component which may be satisfied through either placed art or performance W programmed on a year round basis. The art component shall be submitted to Agency Staff prior to Certificate of Occupancy on the commercial space. The specific measures necessary to meet the requirement will be determined by the Land Use Entitlements. The Improvements will provide on site and off site improvements including but not limited to curbs, gutters, relocation and undergrounding of electrical service, relocation of sewers, water, and other public utilities and expansion thereof, as more particularly described in Exhibit A attached hereto (the "Off -Site Public Improvements'). The Improvements shall conform to the final conditions of the Land Use Entitlements as approved by the Planning Commission or City Council. Where the conditions of approval conflict with the provisions of this Scope of Devclopment, the conditions of approval shall prevail. Attachment 3 Page 2 of 2 F1s:G:SFA6Agree:atch1208 121"6 .XHT I'" ..A« 4ALC - i A~°SOCIATIS ZM W.: M97-257-1 79O1.I M"V. S,:ITE 210 CATE; Ce/13/90 ZRVIrE. CA 9MA - xrca-s/T;CLC:"`-ly aEvs:OP104T lr; rt/Da wsrrlc,.a 6£A0+. CAUFOR !A fw�rD —.s._rr_—W. War aaaaaai7aaa`-- sa aaa.=a& tm=�zWommm iaa<-P—Va.a ara.aa aa a rr.. 0 Mw■Ai aa.wr.r altar —raga; ES-, L-ATE3 I I � I cEsaIPTI�+ WAK7ITY IWITI '•A1l�CS ' I A. R-r►MALS r."Al-rT . f JIM4 VISTM A.C- VAVV-CxT { 11 38.3:0 IS.r.{ I i I O MNTEqLIXE of 31REM >lM--WDJG { I`-cvt DIsr>,G cma 1."J IL.F.I IA:+:r (IrG. SA:A~1Trl?4) i iRE9JE C'O. ,E S:DEAU-( ANNOa 221YN►r I 13.C:5 IS.r.I i f I SL2Tc7w f f I I + I I IA=lf.a SCri a rti:k 2rr'CVAL MN i IM O-m mr.ING a- w4m LIkE { ASS IL.F.I isoini RIQgT-7--6.+.Y CF GIVE m j ' _KVE f .'s-il a SwEt MA-CLES 1 IEA. I iL'�fr.X E1+E OF OUJI c 1 1 I I ; Imo. 1r+G Dc "' 4 SCR uT ,eu I t s:s-ark I 1 { t i i WTEA ,X:+C+E EXISTI C as w-ER LINE { NS IL•F•i iAS&KO ;A —.LA PAIR XC-W-VAL FaCM ta'I Its t SALVAZZ ECISM4 WATZ,z ?EVER I 1 j:..S.l ,MCQTh Cf C;M-.EALIML OLI ' xa JECIVD4 $- WATER MADd Ix Cam . I I SLITCru I f.L:CT:CJI./T�_:PK>+EiGJS, i i 1 l 1 ICOCK M I►+G UTILITY POLSS i LIKS { A IEA. EL_CMICAL i Ito" Cargw. mr-T LIQf 3 IEL. I ' 1SERvIas I Itt-on Exisma W Live {Im.-:1 xmG W.7m) I 3W IL.r.I ;Il-cLLDING Cfls-.)4 ws LATERALS I � s�rnTu j j • � 1 I I 1sIS.cLLA►+E0.� I�I�I. ! • • ! T Imo- I I�E1.ou►:4 a• rfr� I m Imo- I l i I2OVVE C ISr& MY 23M PIPE I 90 IL.f.I IA= -%CZ :e-0E ExTLE PIPC CX=:)4t ' Ioa.xwe A Poemm To cLvr£RI lw i SMICTAL I I I {acr 31NG .O rn I------�I--1• IQEsr^ZWZ IC►, Tartu. RErov.L iwrr.rwr ■ a�.a�� rar�w.. a�..�.r.r>•.r rr...raw...�a r.a��a�rrrrw+... ar.a • r�rr.�...r��..n.rwr_rrwr^� Eat ] fir: LM l A.SS:CiATES Zs NO.: CeS:-2i:.t 1012 d ux. WfTE 210 CATM 08/1 219C VINE. CA qM4 qSC>BfTILL"TSN MVELCPENT BY: IS/De 14) 660-.0110 kACING CN BEACH. CALIFCRNIA wrw�#.��w�wrr�...-..■.wr■■r..-�.-.y.-w....r..rr wr....Y.. w..Y�■■ ft�ssiiaa aa"4aaaia a: awasSa+#ar WFa■r■a■■.ayy ]EST:.`tiATiD I ! • ;�;~ ( ES'.:rA7E] � I OES:.Z:FtiQN ! CuwTITY IUrITI PRIC: I c ] 1tr+uf:tS I ---- .._ ....._.�r......... —._.__-----..- -----! Sauer vcE=;cuc CLECT2IC j 750 {L.F.j I zysaET UCXr.M o TEUP+<X ! 750 IL.F.I ! [ i UCCrQ3 +o CAL: T.V. I tsa IL.F.I I I Sc ST(r {L TOTAL UTIL.lr IWQOr---NTS I I I I I 0. .troy+ DRAIx --vgCvE-c4rS 1 I ! 1 ! 3 ILA. ..roll Pur. a Jcim aISTIA E.C.F. ( 2 LEA. ! IAT KUN z CLIYT I MKSZC, C.L T G U&4*, t (W-A') I S I U• I I ! CDcr.-AC 18" R.C.P. [ 660 IL.F.[ ]Ix wIH ST. (: LA:-�S) I • Sl�ETOTiL ! I I i I --- _I_• ' TOTAL n'J&IC IraQGVE-f-M 1--1 I I wt���w•w..wwrw ■■wI��.M-I-.�w�.r�!>Y w.-wrwY...YY\wwMM { ya taa a i a a wawa sa a�aaar a==saa aaaaas I w E. AADCl r'EES i AS:-S9-VM EKIKERI 4 k NSPEECTICH fl 3 I IL.S.I •ZZ TOTAL PJBLIC I xvE+t.KT crsT I TRAFFIC IPVAC Mr I A.OSS ITxIPI JK2 nx sr:�asow-1/a.Sslcr:ae I CAPITAL FACILMS WATER FEE 3 Iw.3.I Ic;x:AL-PEA Jur XDN I CAPITAL FAC:L:Tr'S. WATU FEZ I 66 Io.U.I ItESi0E9-.IAj--w/AS$UlFTIQd [ ci T1f s&u F& I 6E ID.U. I I ZES/X VT:AL I CM MER FEY I 1.9 LAG [ IC1~rERtIAL I CXTRl=04 ?LATER FtE I " ID.U.I IMP-CF $12J MMMO.6 KS.IH 04-NUal mi.,m c1mY.3+111ITJncm D7 nza mn i-a I Z7.= ]S.F.[ IcKRCIAL I owice CCLw l sammTICN DISTRICT Scoex ru, I as ID.U.I IuIDwIAL I DRAIW= rtz' I 3 LAC. ! I I DE`m.:oa:# ava CST Pe.Mic I3'psL?vE?ExT : • I TOTAL ,vcr FEES i A=E=10= E 1!I I 1 ....-�- r.■rwwa+■a I a-■.■.... wwrr.�. w.r.�.-�w � raw �.rw-..w.� rw F . C mvwrS F E-a I I L. 3.1 I I 1 Cx Tr 1L PVELIC Im'IE¢ oca c= ; I 1 ! I I I!NC= s MIL ElNCW—v% =IV I I • 1 I ! ! ISCILS D41w—rxl)4 maJLwT FEE= ; iaawfaiawa�wa�4aaw.a+aaaaaaw�wwaras+r�aa aawwwwYw�.aaaww�a■ wa ww.■wa w�r■www�w-■ wa w-w.�r PREPAXED B": WAL:ErA a A=:ATES = NO.: CE47-257.1 16412 cnm"4. Sul -it 210 :,ATE: C13/13M 1XVINC. CA 927ia 1,c-c?ti/T:LLCTScM DCAL^C04-41 8Y: P'S/a9 VIA) 666-0110 - ra;P[TPC7a KX>4. CALiFOW*,A ' ( DES:a:FT:CK 1 �VIT;ZY iw1TI I awJtrs I jt~?4Tfi.0 Ct1tS a• GJTTiR i 1a'.40 It.F.I = • i ICHrZMs4T A.C. PAVE1W Ac I B% ITCH I IKO DECDRATIVE PAVEMENT 1M.-= I f 1.s.s ITCH I I . I ICSa~xcT 3:DAz I 13.825 IS.F.l IAMICO CEMRATIVE C>9:2Ef< i Ic>C,-zX C " 6ITTEi I 6m IS.F.I IAT F:rN a CLiY: I Ic:,�, xT WACICAP bws I A IEA. ( I I IC0S:2=-i CW.=TM s-ETT UCHTS - 3 (EA. I (KAIN STMET 10� , X; DE=r,.A;:VE SR�:T LIG+TS - S.- CLE j 2 IEA. ( (MIN 37,Uc'T I I=r' TE 5--M LIG.TS - SVGA" ! s (EA. l lain. CLIVE a FIFTH Irma-, L:s-T C3auT I 1.aTy IL.F.I I 'I;icmz . a =rpt)4 I 1 (L.S.I l .WFIC c .—Im f 1 1L.S.( . j uNow."t ALL �t: l 1 lL S_ l I IrG. 7 TstE_3 CN K:N q m rr ( C. UTILITY :?'i M- C1'0r4:.! 1 I { f f 1 SAX lam�t,cr 9-�SEK1 Mkim { 6m lur-I IFR0+ Ex. M.W. a PAIN a CLI E l so -ex M4a; i 3 Im I I I.. lc>c zm Scesca Cimarr I 1 !k. I - ' IER% W Etc. LINE f JRDCVE P.M a XIx I 1 IEA. iAT MIN a CLIVsE* jCD4r.Z=► WO LATE3AL W VCP) I 135 1L.F.I I3 '—%T'EULS I'm PAIX muf (C36:L�I r NAM rrL:x I 69S ILF.I IOLIVX a ftFT}l 5-Mi TS j . E"GATE VALVE A IEA- f . 12- VAT" JOAN I ws Its;.I IFAIX MEET I 3 . 12' CATt VALVE la*VZcr fIAf 1nW.JW, y tiNam. VALVQ( 3 IEA. I IAMK3 1 ic>d-.Z cr 30 FrR£ smrcr (rr+C. vAtvE) j 1 fCA. I I ! I aw—. Z z- i tTct m7ncr (ne. ►, M ) 4( EA. jC3O, . H=TAP (Ism. VALVE) I 2 Imo- (WorE TW_= aLx a PL14 i XIX CCST. WAT. ( 2 ( EA- I I I �ststaJ E aisTls+� FI2E MOLWr ( 1 jut I AT rrAlx ,� oar I I I I I I S-T=AL f I I -I - ...� w a4�. ww.,. w r-.. r......w++..+..r..r.r.....r.+��. wstl s>r•rr..rwi. r.w.r.. ATTACHMENT NO.4 SFh G:SF-96Amc:Atdl208 Aamchmnt 4 12w% ATTACHMENT NO.5 3Fh:CG:SF46Agu:ntchl208 Attximert S 12M96 ATTACHMENT NO.6 OM ' : • Me RI 1. Execution of Agreement by Agency. The Agency shall approve and execute this Agreement and shall deliver one (I) copy thereof to the Developer. 2. Soils and Preliminary Grading Plan Approval by Developer. 3. Submission of Complete Site Plan Application. Developer submits full and complete Site Plan application to City. 4. Review of Final Site Plan. Planning Commission Hearing and City Council Hearing. Agency/City to review Final Site Plan and Design Review Board, Planning Commission and City Council to approve the concept development plan. Approval of conditional use permit, tentative subdivision map and all other entitlements. • All "days" are calendar days. SF/s:G:SFAbAg=:atc h 1208 1219196 Within forty-five (45) days* after the date of execution and submission of one (1) copy of this Agreement by the Developer. Within sixty (60) days after the approval of this Agreement by the Agency. Within sixty (60) days after approval of this Agreement by the Agency. Within ninety (90) days of submission of complete site plan application. Attachment 6 Page 1 of 4 ATTACHMENT NO.6 I. rIENERAL PROVISION 1. Execution of Agreement by Agency. The Agency shall approve and execute this Agreement and shall deliver one (1) cop)' thereof to the Developer. 2. Soils and Preliminary Grading Plan Approval by Developer. I Submission of Complete Site Plan Application. Developer submits full and complete Site Plan application to City. 4. Review of Final Site Plan. Planning Commission Hearing and City Council Hearing. Agency/City to review Final Site Plan and Design Review Board, Planning Commission and City Council to approve the concept development plan. Approval of conditional use permit' tentative subdivision map and all other entitlements. • All "days" are calendar days. S FIs:G:S F-96Agree: ttch 12 D8 (2l9196 Within forty-five (45) days* after the date of execution and submission of one (1) copy of thus Agreement by the Developer. Within sixty (60) days after the approval of this Agreement by the Agency. Within sixty (60) days after approval of this Agreement by the Agency. Within ninety (90) days of submission of complete site plan application. Attachment 6 Page 1 of 4 8. Revisions, if any. Developer shall prepare revised Construction (working) Drawings as necessary, and submit them to City for review. 9. Final Review and Complete Drawings. The City shall approve the revisions submitted by the Developer provided that the revisions necessary to accommodate the City comments have been made; said approvals constitute the last City approvals required in order for the Developer to pull building permits. 10. Developer Bids Drawings and Obtains Construction Financing. 1) M431011► 11. Opening of Escrow. Agency shall open escrow for conveyance of fee title to the Site by Agency to Developer. 12. Conditions Precedent. The Developer and Agency shall satisfy or cause to be satisfied the Conditions Precedent to the Conveyance. 5fls:Cr.Sr-%Aga:a1chl24E M/96 Vrithin thirty (30) days after receipt of City's comments. Within fourteen (14) days after submittal by Developer. Within one hundred twenty (120) days after approval of construction drawings by all applicable governmental authorities. AS of this date, Escrow is open pending completion of Conditions Precedent. 'Within one hundred twenty (120) days after approval of construction drawings by City/Agency. Attachment 6 Page 3 of 4 13. Disposition Conveyance. Agency conveys title to the Site to Developer by the Grant Deed (Attachment No. 7). Fignork-RU. 1.5 10,6114 ' . 14. Commencement of Grading and Construction. Developer shall commence construction of the Improvements. .15. Completion of Construction. Developer shall complete construction of all of the Improvements. S F/s: Q s FA6Ag=:ztch 1208 119,96 The Conveyance shall take place promptly upon satisfaction of the Conditions Precedent. Within thirty (34) days after the Conveyance The Developer is to use due diligence to complete the Improvements within fifteen (15) months after commencement of the Improvements; provided, however, the Developer may request up to three (3) three (3) month extensions to be granted by the Executive Director of the Redevelopment Agency. Approval for such three (3) extensions (but no other extensions) is not to be unreasonably withheld; provided the foregoing construction shall be completed not later than twenty-four (24) months after the earlier of (i) the commencement of the Improvements or (ii) the time established in this Agreement for the commencement of construction. Attachment 6 Page 4 of 4 ATTACI IMENT NO.7 RECORDING REQUESTED BY: ) AND WHEN RECORDED MAIL TO: } The Redevelopment Agency of ) the City of Huntington Beach ) 2000 Main Street ) P.O. Box 190 ) Huntington Beach, CA 92648 ) Attn: Director ) (Space Above for Recorder's Use) The undersigned Grantor declares: Documentary transfer tax is (3) Computed on full value of property conveyed THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By: Its: Dated: 19_ !URAta Z For a valuable consideration receipt of which is hereby acknowledged, Attachment 7 Page 1 of 13 SF1rG:SFA6AS=:Atch 1208 12J9196 The REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic, of the State of California, herein called "Grantor", acting to carry out the Subarea 5 of the Redevelopment Plan, herein called the "Project Area," under the Community Redevelopment Law of California, hereby grants to JT DEVELOPMENT COMPANY, LLC, a California limited liability company, herein called "Grantee," the real property hereinafter referr A to as "Property," described in Exhibit A attached hereto and incorporated herein, subject to the exceptions, reservations, restrictions and covenants described herein. I. Grantor excepts and reserves from the conveyance herein described all interest of the Grantor in oil, gas, hydrocarbon substances and minerals of every kind and character lying more than 500 feet below the surface, together with the right to drill into, through, and to use and occupy all parts of the Property Iying more than 500 feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said site or other lands, but without, however, any right to use either the surface of the Property or any portion thereof within 500 feet of the surface for any purpose or purposes whatsoever. 2. The Property is conveyed in accordance with and subject to the Redevelopment Plan which was approved and adopted by Ordinance No. 2578, as amended by Ordinances No. 2634 and 3343 of the City Council of the City of Huntington Beach, pursuant to that certain Amended and Restated Disposition and Development Agreement entered into between Grantor and Grantee dated December 16, I996 (the 'DDA'), a copy of which is on file with the Grantor at its offices as a public record and which is incorporated herein by reference. 3. Until July 18, 20I8, the Grantee shah not develop or use the Property other than for the development permitted and the uses specified in the applicable provisions of the Redevelopment Plan for the Project Area (or any amendments thereof approved pursuant to paragraph I 1 of this Grant Deed). 4. The Property is conveyed to Grantee at a purchase price, herein called "Purchase Price," determined in accordance with the uses permitted. Therefore, Grantee hereby covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Property that the Grantee, such successors and such assigns, shall not develop, maintain, use or operate the Property other than as follows: a Witlan the time provided in the DDA, Grantee shall develop the Property for residential housing, office, and retail uses as set forth in the DDA. b. Grantee shall maintain the improvements on the Property in conformity with the Huntington Beach Municipal Code applicable to the Property under the terms of the Attachment 7 Page 2 of 13 Sr/s:G:SF-96Ag=:Atch1208 12&/% DDA, and shall keep the Property free from any accumulation of debris or waste materials. Grantee shall also maintain the required landscaping in a healthy condition. If, at any time, Grantee fails to maintain the Iandscaping as required above, and said condition is not corrected after expiration of thirty (30) days from the date of written notice from the Grantor, either the Grantor; or the City of Huntington Beach may perform the necessary maintenance and Grantee shall pay such costs as are reasonably incurred for such maintenance. 5. Prior to issuance of a Certificate of Completion for the Property, or the applicable Lot thereof, the Grantee shall not place or suffer to be placed on the Property, or the applicable Lot thereof, any lien or encumbrance other than mortgages, deeds of trust, or any other form of conveyance required for financing construction of the improvements on the Property, and any other expenditures necessary and appropriate to develop the Property pursuant to the DDA, and, during such period, the Grantee shall not enter into any such conveyance for financing without prior written approval of Grantor pursuant to the terms of the DDA. No approval will be given for a conveyance of the Property to finance the construction of improvements on real property other than the Property and all off -site improvements required in connection therewith 6. Prior to issuance of a Certificate of Completion for the Property or the applicable Lot thereof. a. The Grantor shall have the right at its option to reenter and take possession of the Property, or the applicable Lot thereof, hereby conveyed, with all improvements thereon, and to terminate and revest in the Grantor the Property, or the applicable Lot thereof, hereby conveyed to the Grantee if the Grantee (or its successors in interest) shall: i) Fail to commence the construction of the Improvements as required by paragraph 4(a) of this Grant Deed for a period of sixty (60) days after written notice thereof from the Grantor, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled; or ii) Abandon or substantially suspend construction of the Improvements required by the DDA once commenced for a period of sixty (60) days after written notice thereof from the Grantor, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled; or iii) Transfer, or suffer an involuntary transfer of, the Property, or any Lot thereof, in violation of this Grant Deed or the DDA and fail to cure such violation within sixty (60) days after receipt of written notice thereof from the Grantor, provided that Grantee shall not have obtained an extension or postponement to which Grantee may be entitled; but Attachment 7 Page 3 of 13 SF/s:G:SFA6Atree:Atch 1208 l2M% iv) - Notwithstanding the time limitations in subsection (i), (ii), and (iii), so long as Grantee is proceeding with reasonable diligence to correct or cure any cause set forth in such subsections, such time limitations shall be extended for the time necessary to complete such correction or cure. b. The right to reenter, repossess, terminate and revest shall be subject to and be limited by and shall not defeat, render invalid, or limit: i) Any mortgage or deed of trust or other security interest permitted by the DDA: or ii) Any rights or interests provided by the DDA for the protection of the holders of such mortgages or deeds of taut or other security interests. C. In the event title to the Property or any parcel thereof is rcvested in the Grantor as provided in this paragraph 6, the Grantor shall use its best efforts to resell the Property or any such parcel thereof, as soon and in such manner as the Grantor shall find feasible and consistent with the objectives of state redevelopment law and of the Redevelopment Plan to a qualified party or parties (as determined by the Grantor) who will assume the obligation. of making or completing the Improvements or such other improvements in their stead as shall be satisfactory to the Grantor and in accordance with the uses specified in the DDA for such Property, or parcel thereof, and specified in the Redevelopment Plan. Upon such resale of the Property the proceeds thereof shall be applied: i) First, to reimburse the Grantor, on its own behalf or on behalf of the City of Huntington Beach, for all costs and expenses incurred by the Grantor, including but not limited to, salaries to personnel engaged in such action (but excluding Grantor's general overhead expense) , in connection with the recapture, management, and resale of the Property, or parcel thereof, (but less any income derived by the Grantor from the Property, or parcel thereof, in connection with such management); all taxes, assessments, and water and sewer charges with respect to the Property, or parcel thereof which the Grantee has not paid, (or, in the event the Property is exempt from taxation or assessment of such charges during the Period of ownership thereof by the Grantor, an amount equal to such taxes, assessments, or charges, as determined by the County assessing official, as would have been payable if the Property were not so exempt); any payments made or necessary to be made to discharge any encumbrances or Iiens existing on the Property, or parcel thereof, at the time of revesting of title thereto in the Grantor or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults, or acts of the Grantee, its Attachment 7 Page 4 of 13 SF/s:G:SF-%Agree:A1ch 1208 12W96 successors or transferees; any expenditures made or obligations incurred %kith respect to the making or completion of the Improvements on the Property or applicable parcel thereof; and any amounts otherwise owed to the Grantor by the Grantee and its successor or transferee in connection with the DDA; and ii) Second, to reimburse the Grantee, its successor or transferee, up to the amount equal to the sum of. (1) the Purchase Price paid to the Grantor by the Grantee for the Property (or allocable; to the part thereof) ; and (2) the costs incurred by the Grantee for the development of the Property and for the improvements existing on the Property at the time or reentry and repossession, including costs for plans, reports, studies and other Iike matters; and (3) all funds advanced by Grantee in connection m ith acquisition of the Third Party Parcels or clearance, environmental testing and remcdiation of the Site; less (4) any net gains or income withdrawn or made by the Grantee from the Property or the improvements thereon. iii) Any balance remaining after such reimbursements shall be retained by the Grantor. 7. The Grantee agrees for itself and any successor in interest not to discriminate upon the basis of race, color, creed or national origin in the sale, lease, or rental or in the use or occupancy of the Property hereby conveyed or any part thereof. Grantee covenants by and for itself, its successors, and assigns, and all persons claiming under or through there that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall the Grantee itself or any person claiming under or through it, 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, sub -tenants, sublessees, or vendees in the Property. The foregoing covenants shall run with the land. 8. Prior to the issuance of the Certificate of Completion of the Property (as defined in the DDA), the Grantee shall make no appeal or challenge of an assessment of the fair market value of the Property far property tax purposes that would result in reducing the assessed value below Two Million One Hundred Fifty Nine Thousand Dollars ($2,159,000.00). 9. Upon the issuance of the Certificate of Completion for the Property pursuant to the DDA and for the following seven (7) years, the Grantee and its successors and assigns shall make no appeal or challenge of an assessment of the fair market value of the "Commercial Lots" (as defined in the DDA) for property tax purposes that would result in reducing the assessed value below Seven Million Five Hundred Thousand Dollars ($7,500,000.00), as aggregated across the Commercial tots. The foregoing shall not prevent a reassessment below Seven Attachment 7 Page S of 13 SF1 Cr.SF,96Agnx:Atd1209 121'91'96 Million Five Hundred Thousand Dollars ($7,500,000.00) in cases of damage or destruction of all or a portion of the Improvements on the Commercial Lots, pending reconstruction of the Improvements. The assessed value may be spread across the Commercial Lots on any basis, so long as the aggregate value is met. Should the assessed value of the Commercial Lots be reduced such that the total assessed value of the Commercial Lots is less than Five Million Dollars $5,000,000.00) as aggregated across the Commercial Lots, then the Grantee and its successors and assigns shall agree to an increase in assessed value to not less than Five Million Dollars ($5,000,000.00). The foregoing shall apply to all transfers, assignments and bankruptcy proceedings, but shall terminate in the case of a transfer due to a foreclosure or deed in lieu of foreclosure to a commercial lender unaffiliated to Grantee. Upon the transfer of all interest in the Property by Grantee or any successor to an unaffiliated entity, the transferor shall have no further liability with respect to events occurring after the date of transfer. Following the seventh (7th) anniversary of the initial issuance of the Certificate of Completion for the Property, Grantor shall, at Grantee's request, execute, acknowledge and deliver to Grantee a document, in recordable form, acknowledging the termination of the provisions of this paragraph, and that these provisions are of no further force or effect. 10. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest permitted by paragraph 5 of this Grant Deed or the DDA; provided, however, that any subsequent owner of the Property shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such owner's title was acquired by foreclosure, deed in lieu of foreclosure, trust sale or otherwise. 11. All covenants contained in this Grant Deed shall be covenants running with the land. Grantee is obligated to develop the Improvements on the Property and the covenants contained in paragraphs 5 and 6 shall terminate and shall become null and void upon recordation of a Certificate of Completion issued by Grantor for the Property, or the applicable Lot therein. Every covenant against dirzrimination contained in paragraph 7 of this Grant Deed shall remain in effect in perpetuity. 12. All covenants without regard to technical classification or designation shall be binding for the benefit of the Grantor, and such covenants shall run in favor of the Grantor for the entire period during which such covenants shall be in force and effect, without regard to whether the Grantor is or remains an owner of any land or interest therein to which such covenants relate. Subject to the applicable cure periods as set forth in Section 501 of the DDA, the Grantor, in the event of any breach of any such covenants, shall have the right to exercise all rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the . . curing of such breach. Attachment 7 Page 6 of 13 SFh G:SF-%Ag=:Atch1208 1219196 13. Both before and after recordation of a Certificate of Completion, both Grantor, its successors and assigns, and Grantee, and its successors and assigns, shall have the right to consent and agree to changes in, or to eliminate in whole or in part, any of the exceptions, reservations, restrictions or covenants contained in this Grant Deed without the consent of any tenant, Iessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. The covenants contained in this Grant Deed, without regard to technical classification shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty. Any amendments to the Redevelopment Plan which change the uses or development permitted on the Property, or otherwise change any of the restrictions or controls that apply to the Property, shall require. the written consent of Grantee, or the successors and assigns of Grantee in and to all of the fee title to the Property, but any such amendment shall not require the consent of any tenant, lessee, casement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. All capitalized terms not otherwise defined in this Grant Deed shall have the m-aning prescribed for that term in the DDA. Attachment 7 Page 7 of 13 SF/s:G:SF-96Agree:Atch12O8 119/96 IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on their behalf by their respective officers hereunto duly authorized, this day of 199,_ THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic By: Chairman By: Executive Director ATTEST: Secretary [Signatures Continued on Next Page] Attachment 7 Page 8 of 13 5 F/s: G: S F-%A&=:A tch 1208 12j"6 The undersigned Grantee accepts title subject to the covenants hereinabove set forth. JT DEVELOPMENT COMPANY, LLC, a California Iimited liability company By: John Tillotson By: John Tsai By: Mike Roberts Attachment 7 Page 9of13 SFls:G:SF-96Agmc:Atch I208 I218196 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On ,1996, before me, Notary Public personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of _ ' , 199 before me, the undersigned, a Notary Public in and for said State, personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public Attachment 7 Page 10 of 13 S1'h:0:SF-96Agme:Atch 1208 12W% STATE OF CALIFORNIA ) )SS. COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On _ , before me, the' undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attaclunent 7 Page I of 13 SF/s: G: SF A 6Agres: A tch 1208 11"6 STATE OF CALIFORNIA } ) ss. COUNTY OF ORANGE ) On before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachment 7 Page 12 of 13 SFIs 0-SFA6AgraA1ch1208 12/8/'96 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Block 304 of Huntington Beach Tract, County of Orange, as per map recorded in Book 3, page 36 of Miscellaneous Maps in the Office of the County Recorder of said county. Attachment 7 Page 13 of 13 S Fh ;A:S FA6AVw:AtCh I20 B l2nm ATTACHMENT NO.8 INVIRONMENTAL CONSULTANT REPORT SF/s:CkSF-96Agmc:Akh l208 . Attachment 8 Z2/M6 (1) PROPOSED GROUND WATER WELL INSTALLATION WORK PLAN FOR THE CITY OF HUNTINGTON BEACH, REDEVELOPMENT'AGENCY SITE LOCATED AT: NORTEWEST CORNER MAIN AND OLIVE STREETS HUNTINGTON BEACH, CALIFORNIA 92648 • PREPARED FOR: CITY OF h'UNTINGTON BEACH REDEVELOPMENT AGENCY 2000 MAIN STREET HUNTINGTON BEACH, CALIFORNIA 92648 FOR SUBMITTAL TO: CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD SANTA ANA P.EGION 2010 IOWA AVENUE, SUITE 10.0 RIVERSIDE, CALIFORNIA 92507-2409 PREPARED BY: GEOREMEDIATION, INC. 3002 DOW AVENUE, SUITE 414 • TUSTIN, CALIFOPXIA 92680 JPMARY 22, 1996 January 12, 1996 Log: 95-257 City of Huntington Beach Redevelopment Agency ` 2000 Main Street - Huntington Beach, California 92648 Attn: Mr. Stephen Kohler Subject: Proposed work plan for the.installation of additional ground water monitoring wells at the site located at Main Street, Huntington Beach, California. Gentlemen: 1.0 INTRODUCTION This report presents a Proposed Work Plan for -the continuation of site characterization activity at the subject site located at the northwest corner of Main and Olive Streets, Huntington Beach, California•(see Figure 1, Site Location Map). This report also includes a summary of site characterization activity completed to'date and proposes conducting an air sparge/soil vapor extraction pilot test for determining the feasibility of this method for mitigating subsurface contamination. 2.0 SUMMARY OF COMPLETED SITE CHARACTERIZATION ACTIVITY 1 GeoRemediaticn, Inc. (GRI) performed a limited subsurface S soil investigation at the subject site as defined by Main Street, Fifth Street, Orange, and Olive Avenues- in 'late winter/early spring, 1990. Two former gasoline service_ c Cl) a _; 0 M M ;oC) M ONC = A �uM y Z r Y Y rYr `U q p o •.• U c ~ I U rl 0 Z `� � H Q � C N�•,� �p N p 10 r pi r m IV a Januarl 12, 1996 Page 2 stations were reported to have been located on the subject site, however, no records were ,available detailing the location of the gasoline underground storage tanks. The • purpose of the investigative activity was to determine if • subsurface soil and/or ground water contamination was present at the site as a result of the former .gasoline service station operations. On March 28, 1990, eight (8) soil borings were excavated in the perimeter planter in the northeast corner of the -site to depth ranging from 12 to 17 feet below current grade (bcg). No significant indications of soil'contaaination were found during this. investigation. A report titled Surnary of Investigative Activities dated April 10,. 1990, was published detailing the results of this investigation. Additional subsurface soil investigative activity was performed in March, 1991, in the southeast (identified as Area A) and the northeast (identified as Area B) corners of the subject site. Fifty soil borings were excavated•on 20 foot centers at the site; 20 borings in Area A and 30 borings in Area B (please see Figure 2, Boring Location Map). Subsurface soil contamination was found in three borings from Area A. No indications of soil contamination were found in ; the bpring in Area B. A report titled Summary Report of L.;I u C0 s`- LEGEND o B-27 GRI BORING - SAMPLE ANALYZED O B-30 GRI BOFU14G 9 GRI BORING IN PLANTER. MAFK fR IM s APPF*x: SALE OF F01WER U GAS STA: BLDG. a J a O 0 • O O a-L 8-Z a-I4 0 ; o----p o 0 8-II ' 10--_o__"'t� 1 � O 1 � 0 0 8-18 8•Zo BLS B-•z*F 8-75 0 O 0 .o O B ZL 'b Z? S-u AREA B ,-AREA A 0 0 • OB7� IS IC. is -it i.....- i O O 0 o O = DIare Hoc.E C R BORING LOCA71ON MALP i o a No-* 51297 ; • #: JAN UARt IM FIGURI: 2 January 12, 1996 Page 3 Preliminary Subsurface Investigation dated October 4, 1991, was published detailing the investigation and findings. Based on -the findings of the investigations described above, GRI proposed on September 25, 1992, to install 5 ground water monitoring wells and 8 soil vapor extraction wells in the southeast corner of the site (Area A, the northwest corner of Main Street and olive Avenue) to initiate remediation of contaminated soils and ground water associated with the former service station operations. A proposal and scope of work was submitted to Mr. Stephen Kohler, City of Huntington Beach, on May 3, 1993. - At this time, other environmental consultants conducted supplementary investigations regarding the contamination problem at the northwest corner of Olive and Main and submitted documents including the following: a site assessment workplan by Economy Environmental, Inc. (7/10/92); a Phase II environmental site assessment by Groundwater Technology (1/3/94); and a summary of soil and water j investigations by McLaren/Hart Environmental Engineering Corporation (4/21/94). Economy Environmental's scope of work was limited to soil contamination within the right-of-way of an olive Avenue: widening'project. Activities performed- by Groundwater Technology included the installation of 3 ground January 12, 1996 Page 4 water wells at the former service station site. Ground water was determined to be at a depth of 33 feet below the ground surface. MW-2, which was installed near to the former locations of the USTs, contained the only detectable concentrations of contaminants in soil and ground water samples. A ground penetrating radar study performed by McLaren/Hart found a buried hoist and a waste oil sump in the western portion of the former service station site. A cone penetration test of subsurface conditions, also performed by McLaren/Hart, further delineated the extent of soil and ground water contamination. Soil borings and ground water well locations from all of the investigations are shown on Figure 2A. The approximate limits of soil and ground water contamination, as defined by the data collected from the previous site characterization activity, are shown on Figure 3, Approximate Limits of Contamination. 3.0 PROPOSED GROUND WATER MONITORING WELLS 3.1 Ground Water Well Installation The subsurface investigative activity conducted at the site has defined the limits of ground water and subsurface soil contamination. In order to provide for quarterly monitoring of the ground water contamination plume, additional ground water wells will need to' be i installed south and east of well MW--2. This Ui.11 ensure r h 'Mp mom v G RG R BORING LOCATION MAP _ DATE: PROJECT: FIGURE: JANUARY,19% 51297 2 A 5w - FR LM= OF CONTAhiINAMS DATE: PROJECL FIGURE: [JANUARY,1995 51297 .. • 3 January 12, 1996 Page 5 that there are "clean" ground water monitoring wells surrounding the ground water contamination plume needed to -provide ground water quality monitoring data throughout the remediation project. GRI proposes to install two offsite ground water monitoring wells, MW--4 and MW-5, at the locations shown on Figure 4, Proposed Well Location Map. Required well permits for the proposed ground water monitoring wells will be obtained from the Orange County Health Care Agency prior to well installation. The proposed ground water wells will be installed in a 10-inch diameter, mechanically drilled boring using • hollow stem, continuous flight augers. A C-57 licensed well driller will be subcontracted for the well installation. Ground water well borings will be drilled to a depth of 'approximately 53 feet bcg, approximately 20 feet. below the soil/water interface or to a depth where at least 5 feet of competent clay is encountered to reduce the possibility of penetrating an aquiclude. The augers will be decontaminated by steam -•washing prior 'to drilling each boring to reduce the possibility of cross contamination. ND ;wa MOMMMG vu E/YJI w EXIR nm wu E G. R PROPOSED WELL LOCATION MAP DATE: PROJECT: PROJECT: FIGURE: { JANUARY, IM 51297 51297 'I January 12, 1996 l-3age 6 Relatively undisturbed soil samples will be collected from each boring at 5 foot intervals beginning at 5 feet bcg using a :modified California split spoon sampler fitted. with three, 2-inch by 6-inch brass sample sleeves. Prior to each sampling, the sampler will be t decontaminated by washing with a non -phosphate Alconox soap solution, rinsing twice with tap water and a final rinse with distilled water. Hollow stew auger and sample equipment decontamination water will be contained in labeled, 55-gallon drums Fending laboratory analyses to determine proper disposal. The middle sample sleeve will be retained from each sampling interval, sealed with Teflon patches and plastic end caps at both ends, labeled, placed in a cooler with Blue Ice and transported to a State of California certified laboratory 'under strict Chain -of -Custody protocol for laboratory analyses. Details of the proposed laboratory program are presented in Section 3.5.1 of this report. The remaining two sample rings will be used for field screening and -soil classification according to the Unified Soil Classification System (USCS). Field { screening, -consisting of observation of soil samples for stains caused by chemical contamination and measurement • of emissions -of volatile organic compounds 'with a January 12, 1996 Page 7 ' portable organic vapor Analyzer (OVA), will be recorded on field boring logs. Finalized baring logs will be ' included in the summary report. Well boring soil • cuttings and waste samples will be contained in' labeled, 55-gallon drums pending laboratory analyses to determine proper disposal. Following the completion of drilling and sampling, the borings will be converted to ground water monitoring wells by installing well screen and blank casing. Four - inch I.D. by 0.020--inch slot, PVC schedule 40 well screen will be installed from the bottom of each boring to approximately 10 feet above the ecountered ground water level. The well will be completed with 4-inch I.D., PVC schedule 40 blank casing installed from the top of the well screen to ground surface. The annular spaces between the well casing and borehole will be filled with Monterey *3 sand from the bottom of each boring to a depth of approximately 3 feet above the screen/casing interface. A bentonite seal of at least 3 feet thick will be installed on top of the *sand. The remaining annular spaces will be filled with bentonite/cement grout from top of the bentonite seal to approximately i foot bcg. A traffic rated, metal well box will be installed flush with the ground surface and each well will be fitted with N January 12, 1995 Page 8 a locking cap. Construction details of the proposed ground water wells are shown on Figure 5, Ground water Well Schematic. ' i - + 3.2 Well Development The ground water wells will be developed immediately . following installation to improve hydraulic communication between the geologic formation and. the well. Well development will consist of surge blocking the well and : removing a minimum of three casing volumes of ground hater using a 3.5-inch O.D., stainless steel bailer mounted on the drill rig. Prior to developing each well, the bailer will be decontaminated in the'same manner as decontamination of sampler to reduce the possibility of cross contamination. The removed ground water will be contained in labeled, 55-gallon drums- laboratory analyses to determine proper disposal. f 3.3 Well Survey After waiting a minimum of 72 hours following well installation to allow for.equilibration, the installed ground water wells will be surveyed. A surveyor's level, i - rod and measuring tape, along with a water and a gasoline i gauging paste,• will be used to determine ground water elevation and thickness of separate phase. hydrocarbons a ol TRAFFIC RATED %TL.L BOX ' BENTONTM SEAT. 4" LD. PVC SCH 40 WELL CASLNG K n wb "' MIL Mf 2' BENTONITE PLUG sz . ' • 4" LD. X 0.020" SLOT VR Joe Mo.: 51297 ' '• • -- PVC SCH 40 WELL SCREEN #3 MONTEREY SAND' GROUND WATER WEIR. SCHEMATIC OA?is JANUARY 19% 1OUR S I . . January 12, 1995 Page 9 (free product), if it exists, in each well. The results of the well survey will be used to confirm the direction of local ground water flow beneath the site. 3.4 Ground Water Well Furring and -Sampling Following the well survey, all ground water wells not containing free product will be purged and sampled. Ground water well- purging will consist of removing a minimum of three (3) casing volumes of ground water from each well using a 3.5--inch O.D., PVC bailer. The removed well purge water will be contained in labeled 55-gallon drums in the same manner•as well development water. The bailer will be decontaminated prior to purging each ground water well using the same procedure as described earlier. , The parameters of temperature, electroconductivity and pH will be measured after the removal of 0.0, 1.5, 2.0,.2.5, and 3.0 casing volumes of ground water. Between the removal of 2.5 and 3.0 casing volumes of ground water, the temperature, electroconductivity and pH will -be evaluated to determine if equilibrium has been M ' established. Variation between these two sets of readings of less than 1.0 degree Centigrade (1.8 degree Fahrenheit) for the temperature, +/- 10% 'for the January 12, 1996 Page 10 electroconductivity and 0.2 pH units will be considered '• as equilibrated. If these parameters are not met, an additional 0.5 casing volume of water will be removed and the evaluation repeated. Following purging and after the wells have recharged to 80 percent or more of their static conditions, ground water samples will be collected. . Ground water samples will be collected from each well using a decontaminated, 1.5 inch O.D. stainless steel bailer. Decontamination will be conducted in the same manner as described above prior to sampling each well. For each water well, bailed ground water wiil be carefully filled into two (2) 40 al glass vials so as to leave no head space. The sample vials will then be labeled, placed in a cooler with "Blue Ice", and transported to a State of California certified laboratory under strict Chain -of -Custody protocol for analysis. Details of the proposed laboratory testing program are presented in the following section. 3.5 LaboratoEy Testing 3.5.1 Soil samples Selected soil 'samples collected from each boring } will be analyzed for Volatile Fuel Hydrocarbons (VFH) by Cal DHS Method 8015 M. (gasoline) and for I I January 12, 1996 Page 11 - Volatile Aromatics, Benzene, Toluene, Ethyl -benzene and Xylenes (BTEX), by. EPA Method 8020. The results of these analyses will be utilized to determine if •significant _ •indications of hydrocarbon contamination are present at these locations. If r ' elevated hydrocarbon concentrations are found in the tested soil samples, additional sail borings and sampling will be required to fully document the limits of soil contamination. 3.5.2 Ground Water Samples All collected water samples will be analyzed for VFH using Cal DHS Method 8015 M (gasoline) and for • BTEX using EPA Method 602. The results of these analyses will be used to'determine the limits of ground water contamination at the site. If elevated hydrocarbon concentrations are found in wells W-4 through W-6, additional :water wells and ground water sampling will be required to fully document the limits of ground water contamination. I 3.6 Disposal of Generated Wastes i soil boring cuttings, decontamination water, and ground water :removed during well development and well purging will be retained in,55-gallon drums and stored at the• January 12, 1996 Page 12 site for a maximum of 90 days pending laboratory test ? results for proper disposal. After review of the soil and ground water sample analyses, the solid and liquid waste will be profiled and removed to a licensed facility by a licensed contractor for disposal or recycling. Appropriate manifest'documentation will be presented in the summary report. . 4.0 PROPOSED AIR SPARGE AND VAPOR EXTRACTION WELL INSTALLATION It is GRI's opinion that the 'most efficient and effective method of mitigating the subsurface soil and ground water contamination will be to use air sparging/soil vapor extraction and treatment. This assessment is based on the defined limits and concentrations of the subsurface soil and ground water contamination plumes and GRI's experience with the remediation of subsurface soil and ground water petroleum r hydrocarbon contamination in the downtown Huntington Beach area. In order to determine the feasibility of mitigation using air sparging and soil vapor extraction, GRI recommends that a pilot test be conducted. An air sparge/soil vapor extraction pilot test will determine if this method will'be effective and provide data needed to set the treatment system design parameters. I Zanuary 12, 1996 Page 13 In order to conduct the pilot test, GM proposes to install one dual air sparge/soil vapor extraction well and three soil vapor monitoring/extraction wells at the site. The proposed locations of these wells are shown on Figure 4, Proposed Well Location Map. 4.1 Dual Air spargeaapor well Installation The proposed dual air sparge/vapor extraction well will be installed in a 10-inch diametgr, mechanically drilled boring using hollow stem, continuous flight •augers. These wells will be installed by the same driller subcontracted for the proposed ground water well installaticn. The well boring will be drilled to a depth of approximately 45 feet bcg, approximately 10 feet below the ground 'water level in order to provide a sufficient zone of aeration below the water table. The augers will be decontaminated by steam -washing prior to drilling the boring to reduce the possibility of cross contamination. Due to the proximity of the boring to well MW-2, no soil samples will be collected for laboratory analyses. soil •sample analytical data collected during the installation of well MW-2 should be representative of the% soils encountered during the installaticn of the air sparge well. January 12, 1996 Page 14 • Following the completion of drilling, the boring will be converted to a dual air sparge/soil vapor extraction ' well. A one foot section of 1.5-inch I.D. by 0.020-inch # slot, PVC •schedule 40 well screen will be installed approximately one foot from the bottom of the boring. The remainder of the well will be completed with 1.5-inch I.D., PVC schedule 40 blank casing installed from the top of the well screen to ground surface. The annular space between•the air sparge well screen and the borehole will be filled with Monterey 143 sand from the bottom of the boring to a depth of approximately 3 feet above (42 feet bcg) the screen/casing interface. A bentonite seal will be installed from 42 feet bcg to 25 feet bcg. A soil vapor extraction well will be installed from 25 • feet bcg to ground surface in the same borehole as• the air sparge well. The soil vapor well will consist of 2- inch I.D. by 0.020-inch slot, PVC schedule 40 well screen installed from 25 feet bcg to 10 feet bcg. The remainder of the well will consist of 2-inch I.D., PVC schedule 40 well casing from:10 feet bcg to ground surface. The r annular space between the soil vapor well casing and the borehole will be filled.with Monterey *3 sand - from. 25 feet bcg to 6 feet bcg. From 8 feet bcg to approximately 1 foot bcg the annulus will be filled 'with bentonite 1 ' I U i anuary 12, 1996 Page 15 grout. traffic rated, metal well box will be installed flush with the ground surface to secure each well. A schematic showing.the construction details of the proposed dual air sparge/vapor extraction well is presented as Figure 6. 4.2 SoilVapor Well Installation GRI proposes to install three soil vapor wells for the purpose of soil vapor monitoring and extraction. Proposed soil vapor well locations are shown on Figure 4. The proposed soil vapor wells will be installed in an -fl- inch diameter, mechanically drilled boring using hollow stem, continuous flight augers. These wells will be installed during the installation of the proposed ground water and dual air sparge/vapor extraction well. soil vapor well borings will be. drilled to a depth of approximately 25 feet bcg. The augers = will be decontaminated by steam -washing prior to drilling each boring to reduce the possibility of cross contamination. Relatively undisturbed soil samples will be collected from each boring at foot intervals beginning at 5 feet bcg using a modified California split spoon sample. - fitted with three, 2-inch by 6-inch brass- sample sleeves. Prior to each sampling, the sampler will be • TRAF•F'YC RATED WELL BOX Z:, hfVTMf l 2' BENTON= PLUG _!. 2" LD. PVC SCH 40 WELL CASING Zn 2" I.D. X 0.020" SLOT PVC SCH 40 WELL SCREEN ' 113 MONTEREY SAND MINIl�= 2' BENTONM PLUG N � 41 • ' !1 1.5" LD. PVC SCH 40 WELL CASING BENTONM SEAL 113 MONTEREY SAND 1.5" LD. X 0.020" SLOT PVC SCH 40 WELL SCREEN c R DUAL Ant SPARGFIVAPOR WELL SCHEMATIC ' ilon NO.: 0ATI: i: iaNll 51297 JANIIARY,1996. 6 Jzntiar,,j 12, 1996 Page 16 ' decontaminated by washing with a. non -phosphate Alconox soap solution, rinsing twice with tap water and a final rinse with distilled water. Hollow•stem auger and sample • equipment decontamination 'water wili"be contained in . labeled, 55-gallon drums pending laboratory analyses to determine proper disposal. The middle sample sleeve will be retained from each sampling interval, sealed with Teflon patches and plastic end caps at both ends, labeled, placed in a cooler with Blue Ice and transported to a State of California certified laboratory under strict Chain -of -Custody protocol for laboratory analyses. Selected soil samples will be analyzed at a State of California certified • laboratory in order to supplement data collected during previous investigations and to verify the wells location in the soil contamination plume. Details of the proposed laboratory program '.were presented earlier in Section 3.5.1 of this report. The remaining two sample rings will r ' be used for field screening and soil classification according to the- Unified -soil classification system (USCS). Field "screening, consisting of observation of t soil samples for stains caused by chemical. contamination and measurement of emissions of volatile organic compounds with a portable organic Vapor Analyzer (OVA), January 12, 1995 Page 17 will be recorded on field boring logs. Finalized boring logs will be included in the summary report. Well boring soil cuttings and waste samples will be contained in labeled, 55-gallon drums pending laboratory analyses to determine proper disposal. Following the completion of drilling and sampling, the borings will be converted to soil vapor wells. The soil vapor wells will consist Two-inch I.D. by 0.020-inch slot, PVC schedule 40 well screen which will be installed from the bottom of each boring to 10 feet bcg. The remainder of the well will be completed with 2-inch I.D., PVC schedule 40 blank casing installed from the top of the well screen to ground surface.- The annular space between the well screen and borehole will be filled with Monterey f3 sand from the bottom of each boring to a depth of approximately 2 feet above the screen/casing interface. A bentonite seal will be installed from 8 feet bcg to approximately 2 feet bcg. The well heads will be completed with'steel, traffic rated well' boxes and well caps. A schematic showing the construction details of the propsed soil vapor wells is presented as i Figure 7.: i TRAFFIC RATED WELL BOX IU : BENTON M SEAL Y . 2" LD. PVC SCH 40 WELL CASING n ' NUN UM 2' BENTONM PLUG n m • 43 MONTEREY SAND • • a 2" LD. X 0.020" SLOT PVC SCH 40 WELL SCREEN •f. \7c F. VAPOR WELL SCHEMATIC I • No_* 51297 °ATE' JANUARY, i996 savrt : 7 January 12, 1995 Page IS - 5.0 PROPOSED AIR S?ARGE APOR EXTRACTION PILOT TEST In order to verify the feasibility of utilizing air sparging ' and soil vapor extraction to mitigate the subsurface soil and i ground water contamination, GRI recommends that a pilot test will be conducted. Data collected during the pilot test will also determine the treatment system design parameters needed to install the most effective and efficient treatment system at the site. f 5.1 soil Vapor Extraction Pilot Testing Procedure GRI will obtain a portable soil vapor extraction/internal combustion treatment system for use during the pilot study. GPI will ensure that the selected treatment system is properly permitted with the South Coast Air Quality Management District (SCAQMD). S One soil vapor well will be selected for extraction testing and the remaining vapor wells will be used. for monitoring. The test well will be plumbed via flexible piping and connected to the vapor extraction unit. The surrounding monitoring wells will be plumbed with a fitting enabling the connection of a Dwyer Minihelic Differential Pressure Gauge (Minihelic). This will be used to detect any influenced vacuum caused by the test well. A water U-Tube manometer will be used to measure t i I I i I I January 12, 1996 Page 19 influenced vacuum beyond the range of the minihelic gauge. . A Gastech portable Organic Vapor Analyzer (OVA) will .be used to measure the influent=soil vapor Volatile Organic Compound .(VOC)concentration and SVE system effluent VOC concentration. The SVE system will be started and tested to ensure proper operation. After connection of the test well to the SVE system and installation of the guages on the monitoring wells is completed, the SVE system, will be started and the test will begin. Each vapor well will -be tested individually using the following procedure: -- Start SVE' system and gradually apply vacuum to the test well until an equilibrium is reached; - operate SVE system for two (2) hours and ronitor the following parameters every fifteen (15) minutes: o Influent soil vapor Volatile Organic Compound (VOC) concentration, o SVE system effluent VOC concentration, o Soil vapor extraction flow rate, o'Test well vacuum, o Monitoring well vacuum, o SVE system process pressure, o SVE system process temperature, - Collect influent soil vapor sample after two (2)•' hours; -- Repeat test at next yapor.well. _ I 3anuary 12,•1996 Page 20 ' During the testing' procedure; preliminary data analysis will be performed in the following manner: o If consistent or increasing influent VOC concentrations are measured with the OVA, the SVE { system will be said to be extracting contaminated soil vapor; and • o If a reduced vapor pressure is recorded at a monitoring location, that well will be considered to be within the radius of influence of the well under test. f I t Farther data evaluation will be performed after all field data is collected to allow the graphic representation of the estimated radius of influence for each well. If neither of the above conditions is met within one (1) hour, the test will be discontinued and the procedure will be repeated on the next well. If none of the vapor wells respond within one hour, the original test well will be reconnected and the test period will be extended to five (5) hours. If no response in influent VOC concentration is noticed in the vapor wells after the conducting the extended*test, other remediation options will -be explored including • excavation and. risk assessment. 5.2 Air Sparse _Pilot. Test Procedure After the completion of the soil vapor extraction -pilot test, CRI will conduct the air sparge pilot test. Auring the air sparge pilot test, •GRI will monitor the January 12, 1996 Page 22 soil vapor wells and ground water wells surrounding the air sparge/vapor extraction test well to determine the radius of influence of .the: air sparge well. This monitoring will also be used to -determine if air sparging will result in undesired aovement of the contamination plume. The four main parameters that will be recorded in the surrounding air sparge and ground water monitoring wells are dissolved oxygen content, well head Volatile Organic Compound (VOC) concentration, well head vapor pressure, and ground water elevation. The testing procedure will be as follows: - Start soil vapor extraction system and apply a vacuum to the vapor extraction well for thirty (30) minutes to establish a baseline for influent Volatile organic Compound (VOCs); - Measure dissolved oxygen content in. the selected air sparge well and the surrounding air sparge and ground water wells; ' -- Measure ground water elevation in the surrounding air 'sparge and ground water wells; - Start air sparge system after baseline VOC reading is collected and gradually apply compressed air to the selected air sparge well until equilibrium is reached; - Run -air sparge test for three hours and monitor the following parameters every fifteen (15) minutes:. o Soil vapor extraction well vacuum, o Soil vapor extraction flow rate, - o Air sparge flow rate, o Air sparge pressure, ' I January 12, 1996 Page 22 o Air, sparge temperature, o soil vapor extraction system influent VOC concentration, . o VOC concentration• in idle air sparge/vapor extraction wells and surrounding ground water wells, o Dissolved oxygen concentration in idle air sparge wells and surrounding ground water wells, o Vapor .pressure in idle air sparge/vapor extraction wells and surrounding water wells. Repeat test at next air sparge well. A minimum of 72 hours after the test is completed, the air sparge well will be.retested at a different air supply pressure. Data collected from the pilot test will be used to determine the overall effectiveness of air sparging in removing hydrocarbon contamination from the ground water and to determine the radius of influence of the air sparge.wells. The radius of influence of the air sparge wells will be determined based on the increase in dissolved oxygen concentration and increased vapor pressure in the surrounding ground water wells monitored during the test. 6.0 REPORT PREPARATION Following completion of the proposed activities described in this Proposed Work Plan,- GRI will prepare and 'submit a January 12, 1996 Page 23 summary report. This report will include a summary of all laboratory data, pilot testing data, and recommendations for the next phase of environmental activity at the subject site. Based on the results of the air sparge/soil vapor extraction pilot study, a Proposed Remedial Action Plan will be prepared and submitted as a portion'of the recommendations section of the summary report. 7.0 LIMITATIONS This reportwas prepared using a degree of care and skill ordinarily exercised, under similar circumstances, -by reputable Soil Engineers, Geologists, and Environmental Scientists practicing in this or similar localities. No other warranty, expressed or implied, is made as to the conclusions and professional advice included in this report. The opportunity to be of service is appreciated. If -you have any questions, please call Andrew Zikeli at 714-573-0435. Very truly yours, GeoRemedi tlnn; In ary T. rlin Senior Environmental Geologist R. E. A. 3403 •cJ wa T.-Ci Project Environmental Chemist R. E. A. 3404 /)ajmes R: nior En C. E. r. Andrew Z. eli Staff Engineer ATTACHMENT NO.9 j r* 11,43 IT'S[ 1441 • ► RECORDING REQUESTED BY: ) AND WHEN RECORDED MAIL TO: } } (Space above for Recorder's Use) This document is exempt from the payment of a recording fee pursuant to Government Code Section 6103. THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH By - Its: Dated: . 19 A. On or about , the Redevelopment Agency of the City of Huntington Beach, a public body, corporate and politic, hereinafter referred to as "Agency," entered into an Amended and Restated Disposition and Development Agreement (the "Agreement") a7th JT Development Company, LLC, a California limited liability company (the "Developer"), which Agreement provides for the acquisition, disposition, and development of certain real property (the "Site") situated in the City of Huntington Beach, California, and more Attachment 9 Page l of 6 SF&G:SF-96Agree:Atch1209 Attachment 9 12IL196 particularly described on Exhibit "A" attached hereto and made a part hereof by this reference. As required in the Agreement and as referenced in the Grant Deed, the Agency shall furnish the Developer with a Certificate of Completion upon completion of construction, which Certificate shall be in such form as to permit it to be recorded in the Recorder's Office of Orange County. B. The Agency has conclusively determined that the construction on the Site described hereinabove required by the Agreement ar.d the Grant Deed (the "Construction") has been satisfactorily completed. NOW, THEREFORE, the parties hereto certify as follows: 1. As provided in the Agreement, the Agency does hereby certify that the Construction has been fully and satisfactorily performed and completed in compliance with the Agreement and the Grant Deed. 2. 'The conditions upon Developer and all obligations of Developer under the Agreement are discharged, except as set forth in the Agreement. 3. Nothing contained in this instrument shall modify in any other way any other provisions of the Grant Deed executed and recorded pursuant to the Agreement. 4. After recordation of this Certificate of Completion, any person or entity then owning or thereafter purchasing, leasing, or otherwise acquiring any interest in the Property will not (because of such ownership, purchase, lease, or acquisition) incur any obligation or liability under the Agreement, except that such party shall be bound by -any and all of the covenants, conditions, and restrictions of the Grant Deed or the Agreement which expressly survive such recordation. 5. This Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the improvements to the Property, nor any part thereof. This Certificate of Completion is not a notice of completion referred to in Section 3093 of the California Civil C. 6. The Recitals above are incorporated in full as part of the substantive text of this Certificate of Completion. Attachment 9 - Page 2 of 6 - SFh:G:SFA6Ag=:Atch 1208 Anachm nt 9 12AM IN WITNESS WHEREOF, the Agency has executed this certificate this day of THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTTNGTON BEACH By: Executive Director ATTEST: Secretary Developer hereby consents to the recording of this Certificate of Completion. JT DEVELOPMENT COMPANY, LLC, a California limited liability company By: John Tillotson By: John Tsai By: Mike Roberts Attachment 9 Page 3 of 6 SF/s:G:S F-96Agrce:Atch [ 208 Attachment 9 l2AV% STATE OF CALIFORNIA ) • • ) ss. COUNTY OF ORANGE ) On this day of 199_, before me, the undersigned, a Notary Public in and for said State, appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the Executive Director of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Notary Public (SEAL) STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State, personalty appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the Iimited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachment 9 Page 4 of 6 SFh:G:SF-96AV=-Atch1208 Attachment 9 IM6 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On _ , before me, the undersigned, a Notary Public in and for said State, personally appeared personally knoikm to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS My hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachment 9 . Page S of 6 SF/s:G,:SF-96A&=:Atch t208 Attachment 4 12MW EXIIJBIT IC .;#P; r Block 304 of Huntington Beach Tract, County of Orange, as per map recorded in Book 3, page 36 of Miscellaneous Maps in the Office of the County Recorder of said county. SFh o:5F-%AS=:AtchI208 Auarhmrnt 9 [2M96 0 Attachment 9 Page 6 of 6 a SF/s:G:SF-96Agret:DDA-120S Asschmem 10 121&'96 (1) i 10 O T G E COAST TIJ LE C O M A N C 640 NorLh Tustin iJe me Santa Ana, Cal 'orraa 92705 (714) 53a-2836 NEwcas DE=Riv- r 2800 Ia. Faye-,.e Ave. Newport Beau, Ca 92663 Date: Auru=. 5, 1991 Attenticn: Jdm Ne.a=b your' NO. Ce-er No. 16a013-5 Dated as of July 31, 1991 at 7:30 A.M. In respor%e to the abcve refererx--ed acolicaticn for a policy of title ir-surance, Orange C;,as` Title G=rany hereby repoits that it is prepared to issue, or cause to he issued, as of the Cate hereof, a Policy or Policies of Title Insurance descibi.ng the land and Lhe estate or ir&,.e*E--..t therein he_reirafter set forth, in =irq agair-s-t loss atdcz ray be sustained by rescn of any defect, lien or e =xnb-nce not &hcw-n or refer`-ed to as an Excepticn below or not ex:rlu& d f-= c=we_nage pursuant to the p=ted. Schedules, Ca-Aiticns ard Stipulations of said policy fo--s. =m printed Excepticns and EXclusicrs frrm Lhe cave_�e of said Polic, cr Policies are set for'lh in Sc:ec le 1 and Schecttle 1 (c=xtirved) attached. Conies of 't~re Policy forms shaxld be rend. They are available f= the office which issued this report. This report (and any supolem---Lts or arm -dents hereto) is issued solely for the purpose of facilitates the issuance of a policy of title insurance and no liability is asszr7ed re* y. If it is desired that liability be assumed prior to the issLmnce of a policy of title insurance, a Birxe_r or C==itment shculd be , re'_UeSteda SWIG VA..OBSM - Title Officer T i;a fora of policy of title ins. -ance =timplated by this report is: A Cl a Standard Cove -age - 1990, Owner's Policy. - Tree estate or int-erest in the land heir des,•--ibed or referred to cavered by thus Report is : A Fee. Title to said estate cr irt..erest at the &te hereof is vested in: - SEE T-"O= "A" attached. or -de; No. 168on--B "An JX%MS E. KOLIM and JOAN IMITER, h=bend and wife as joint tmmrts, as to an wi iivided cne-1-alf inter and LFIM M. aW.A o, a married ran as his sole and sercz=tee pr--pe—zty, as to an undivided cne-; a f inter, as ten -ants in r=nricn as to Parcels I & II. CITY OF FfJNrlNG" W Eli, a M-micipal C=poraticn, as to Parcels IIi, V, VI, VII, IX, X, XI, =' =1, hUCn)= Mmj =EvEMPM Nr AGc'NCI, a Public body gate and politic, as to Parcel IV. JAMS MWo m= and JOIAN For IER, h=lbzard wife, as to Parcel VIII. C de= No. 152023-5 The land r+efe-e3 to in t'us Port is sitmted in the State of Oalifoz:lia, C ty of Crarge and is de�,'--ibed as follows: Pas -..a 1: Lcts 1 and 3 i n Blcck 304 of Nam. n:g*- n Each, in to City of Yazntirjr= Beach, as per rein re=rded in Sark 3, Page 36, of -Miscellaneous Maps, in the office of the City Re=rder of said a=ty. EXIT TRERZF CM all oil, gas, mine -ems and c :her hyd.-ccar!cn substances lying below a depth of 500 feet without any right to erne: upm the surface or the subv,wface of said land above a depth of 500 feet, as provided in of r+ew�i. Pax —cal IT: Lots 2, 4, 6 and 8 in B1octi 304 of Bmtizrtcn Beach T--acr in the City of Fluntingt.^n Beach, as shown cn a map x rded in Bonk 3, Page 36, cf Mpv, i:n the office of to City Record-: of said C=nt:y. . Ex=pt the North�,.erly 10 feet of said Lots as cmderned by the City. cf I=tirjg-,- n Beach by firol fie° recorded Dew 31 1923, in Book 500, Page 278 of Deeds, rewords of said Cra ge Comty. =dEPT ME—FE'iM all oil,. gas, minerals and other sbstames lying belmi a depth of 500 feet wi:L'-mtxt any right to enter Upon the surface cr the s&.—arface of said land above a depth of 500 feet, as provided in ins—==*nt:s of record. Parcel IIi: let 5 and the Scult--hueeterly 8 inches of Lct 7, Block 304 cf the HBeach Tract, in the City of M==j#= Beach, as per map thereof recorded in Bock 3, . Pace 36 of 1wJ-- mUaneo= lAzps, records of Orange City, California. EKCEPr_'TCNS CWM-,Uri... PACE 2 Order No. 163013-5 EXC3 � On-MMM24 all oil, gas, mine-als and ct.'-.er hyd_ocarbcn substances lyirxj below a depth of 500 feet without any right to enter uaon the surface or the s-.1 z=face of said land abate a -depth of 500 feet, as prcvided in ins�.raewts of record. PI -me? IV: Lct 7 in Block 304 of YAmtingt^n Beach, in the City of Bx-&-ingt= Beach, as per rep recorded in Book 30 Page 36 of Misce laneous Map. , records of Orange county, C3lifcrnia. £xicepting the Scut y ms`rerly 8 inches. THEREFFM all oil, gas, minerals and ctlle: rydrocar!= substances lying below a depth of 500 feet without any right to enter upon the surface or ts-he surface of said land above a depth of 500 feet, as provided in of r�rd. Pax -gel V : %t 9 in Block 304 of Beach, in the. City of P.LMtlrqt--n Beach, as per rap rr_=r ded in Bock 3, Pare 36 of Misce'l3ammms Maps, recar'.s of Orange Cam- ity, C3lifcrnia. EYC r M. CM all oil, gas, minerals and ctther hydracarbcn v iztarres lying below a derm-Uh of 500 feet witth=xt arty right to eri'— %:;= the surface cr tr e sibsurface of said land above a depth of 500 feet, as provided in of record. P :—cel VI: Lzt 10 in Block 304 of the Beach in the City ofFj=.tIrqtcn Brach, as per map reauded in Book 3, Pane 36, of Miscellaner= Maps, in the office of the Cozr:ty Recorder of said County- Mmept the Nor t--nms .erly 10 feet of • said LC as teemed by the City of Rzrtirgton Beach by firal decree recaxded Deter 1, 1923, in Pock 500 Page 278 o-f Dees, reccx s of said Orange County. EZHM�all oil, gas, minerals and ett-er 1-. r arbcn substances lying b_1cw a der-th of 500 feet withrort any right to e*:ter upon tze surface or the sabsuSface of said land above a depth of 500 feet, as provided in of ' Parcel VII: Lets 11 and 13 in Block 3 04 . of ' Beach",, in the City • of Huntingtcn Basch, as per map recorded in Book 3, Pace 36 of 1w_ scellaneats Mans, r of or-e County, California. E{---.:'ICIZS a2rLMN7j7r7]... P. E 3 Ceder No. 160"013-5 F X=—,- 'TIT-2- � RCM all oil, gas, -,,dnp_rals and ct. •,er - hydrocm:bcn lying below a death of 500 feet withcat. any right to enter, umm t' a Mace or the sabs.��•face of said land il=e a depth of 500 feet, as poivided in instrt.�neats of Parcel I=: Lcts 12 and 14 in Block 304 of PJ-mtirgtcn Bead Tract, in the City of i1�,irqtm Bead, as per ran re=r'ded in Bock 3, Page 36, of Vdscellanevuls Maps, in the office of the County Pxcme arr of said Canty. ix=ept Uhe Nort'me tp_-ly 10 feet of said lots as =Vaned by the City of F1.^ UTi;`.r n Semi by final 6—ems recorded Deeenber 1, 1923, Book 500 Page 278 of De--'_ .s , records Of said Orange City. r-=T T!-ZREFRCM all oil, -gas, minerals and ctl,.e= hydro=ntcn embstances lying below a depth of 500 feet uitb= t any right to enter upon Lhe surface or the mtsurface of said land above a death of 500 feet, as pr vided in instr=emts of record. Parcel IX: Ists 16 & 18 in Block 304 of Mmtirrton Beach, in the City of I=t;rgtcn Beach , as per =p recor•'ded in Boat 3, Page 36 of M.iscellane= baps, rec= s of Orange Cm=ty, California. the Nart*:.vste*ly 10 feat of said Lots as =flamed by the City of iamtingt_-n Beach by final demos recorded Dece—mber 1, 1923, -Book 500 Page 278 of De�._..s, re==3s of said Orange Canty. r'3C T IrZY.UKAn all oil, gas, mine_*als and Gt-hex- hvdrocarbcn susarms lying below a de+ h of 500 feet withcat any right tc ennter tenon the surface or •the mubm=face of said -land above a depth. of 500 feet, as provided in irzt=Uments of record. Parcel X: lots ' 15 & 17 in Block 304 of Beach, in the City of R.IntingtM Beach, as shmn on a map theareof recorded in Bock 3, Page 36, of IA.iscellaneas Maps, records of said Crane Canty. r Z-mUTFCM all oil, gas, mine -rats and other lying' 'below a depth of 500 feet without any right to enter upm the surface or the ..,*==face of said land alive a depth of 500 feet, as provided in instrtments of recor3. _ Lets 19, 21, 23, 25 and 27 in Block 304 P.xtirgt= Bead, in thlie City Of'. ik =t _-Xj= Heath, as shown cn a asap thereof rin Bonk 3, Page 36, of I�.is,-,ellaneo= Mats, in the office of the County Recorder of said County. E{C`- rr-rCNS MIMR ... PAS 4 0--der No. 168013-5 EC= TFMR.E--?- all oil, gas, tine_rals and ctl-p- i substances lyinj . below a de_r•th of 500 feet without any right to enter upm the surface or the ssbm.- ace of said land above a depth of 500 feet, as prvvide3 in ins. r==Its ,of record. Pa`- al XII: Lots 20, 22, 24, 26 in Block 304 f'.t, t„= Beach, in the CiW of Beach, as shown cn a mar) recorded in Book 3, Page 36, of Miscellaneous Maps, rear'.s of orange Cctarty, California. Except the Nor`,tvs-terly 10 feet of said ices as aid by the City of DXTt! r-tan Beach by final Deco+ee recorded D xem r 8, 1923, in Book 500, Page 278 of Dew°._ ..s, re rds of said Orange Camty. EX= all oil, gas, minerals and ct*•-er zube;=- roes lying helm a depth of 500 feet without zny right to enter t on the surface or the subsuz-face of said land above a depth of 500 feet, as pr--Aded in ins.rL.�rtc of record. Pa -el XEM At thm date hereof exceptiors to c average in additicn to the EoceP-ticns and ExE-Iusicns in said policy faro mad be as follms: Lot 28 in Block 304 of Hmti n t= Each, in the City of F.=tL-1 "tr n Beach, as per reap thereof re=r�'..,ed in Bcck 3, Pace 36, of H scellzmcus Mars, records of said Orame C=rty. Except the NortI7-vs ,.erly 10 feet of said L—, s as '� by the City of ~tinct: n Beach by final Dew recorded Deemtp-- 31 1923, in Eock 500, Page 278 of Deeds, records of said Or• i;e Oz rrty. M-MU-1-CH all oil, gas, mir* is and cthpmr iaydrccarbcn lyl� belcr.: a depth of 500 feet wit, hout any right to enter upon the surface or the surface of said land above a depth of 500 feet, as provided in inst-Lents of record. A. General and Special Taxes for the fiscal year 1991-1992. A lien rzt- yet payable. : B. M7A foUadi iq taxes have all been paid and are reported for proratim parposes only. General and Special Taxes for the fiscal year 1990-1991. Total Mott $2,409.84, First InstailaIe.$1,204.92, SeCx�d ` $1,204.92. Ccde Area 04-035, Assessors Pa=el No. 024--143-12. Ex=pticn gone. w ECG-'iTCNS CU11'IIvIJED... PA =- 5 Crdew-- No. 163013-5 C. The fclla4ng taxes have all been paid and are reported for proration P=Pcse_s only. General and Special Taxesfor the fiscal year 1990-1991. Total Amount $5,874.74, Fits ��it $2,937.37, Send Irz-,aIlme.*rt $2,937.37.- Code Area 04-035, Assessors Parcel No. 024-143-17. Ex==ticn Ncre. D. The following taxes have all ben paid and are reported for gyration pL:tposes eniy. Game --al. and Special Taxes for the fiscal year 1990-1991. Total Amount $60.30, Firs Imstallment $30.15, Se.md $30.15. Code Area 04-035, Assessors Parcel No. 024-143-11. Fxmpticn None. E. The follcwirxg • taxes have eLU bean paid and are reported for proration FuYpxSes only. Cerp-raJ. and Special Tastes for the fiscal year 1590-1991. Tctal Ammt $120.24, Firs Installment $60.12, Second Ir t,1 men $120.24. Code Area 04-035, Assessors Parcel No. 024-143-10. Exemption None. F. The follcwirr, `.axes have all been paid arxd are reported for p=aticn des only. Goerl arxd Special Taxes for tM fiscal year 1990-1991. Total Arazit $101.08, Firs Irs`.allmrit $50.54, Send Ins` 1 $50.54. Ccde Area 04-035, Assessors Parcel No. 024-143-19. Exampticn Nome. G. The following tastes have all be°.n paid and are reported for p vrat 3 cn purses only. Ga-m--al, ard Special Taxer for to fiscal year 1990-1991. Tttal Fit $.90, First Itmstallment $.45, Sze $.45. Code Area 04-035, Assessors Parcel- No. 024-143-03. Dcepticn None. H. The follaA rg tomes rave all been paid and are repotted for p=raticn purposes curly. General and Special Takes for the fiscal year 1990-1991. Total Am=it $1,899.78, First Ins`..a31.mit $949.89, .Se=3nd Irs`.allre t $949.89. Code Area 04-035, Assessors Parcel No. 024-143�20. Exe ptien Nome. Z. The foilcwirg 'taxes have all been paid amd are reported for proration purposes only. General and Special Taxes for the fiscal year 1990-1991. Total Amount $.00, -Fi-st Ir t'allmmt $.00, Second $.40. , code Area 04-035, Assessors Parcel Fo. 024-143-24. Exm;) ion None. J. Me following taxes have all been paid and are reported for prozaticn p=poses only. Gw*xal and Special Taxes for the fiscal year 1990-1991. Total. Aa =t $ . 00, First I-stallmmt $ . 00 , Second T*,� r l - . $ . 00. Code • 1Lrea 04-035, Assessors Parcel No. 024-143-04. Exaq:tion None. K. M e folladinq tastes have all been paid and are reported for prflx��!Icn only. General and Speci.al Taxes for the fiscal year 1990-•1991. Total A oxit $.000 First ir>Stallme*>t 6.00, .e=nd $.00. Area 04-035, Assessors Parcel No. 024-143-23. E*mpticn Nome. L. M e following taxes have all been paid and are reported -for ptnxatim p=pcses only. Genneral and Special Taxes for the f iscal year 1990-1991. Total Amount $.00, First Tr.�� $.00, Secnd ev.00. Code Area 04-035, Assessors Parcel No. 024--143-25. ExmpUcn Norse. E CCEPMCNS C:NM'rJM... P.; C --- 6 Order ITO- 168013-5 M. The following taxes rave all bean paid and are xp_p=ad for proration cnLly. Gane*-S and Special Taxes fcr the fiscal year 1990-1991. Total A== $ . 00, First In=,,.allment $ . 00, 5e-...,nd Installment $ . 00 . Area 04-035, Assessor Parcel No. 024-143-01. Exex:p' cn Ncn e. N. Me following taxes have all been :paid and are reported for proration Pimpcses cnl.y. Gene-ml and Special Taxes for the fiscal year 1990-1991. Total A~xmt $104.40, First Ins`.3].lm- t $52.20, Sz�--xd Ir5' $52.2o. Code Area 04-035, Assasscrs Farce? No. 024-143-09. Exeapt;cn Nine. O. The lien of smple a tal taxes, if any, assessed ant to the provisions of Section 75, et sm. of the Revenue, ard Tmmticn Code of 'Liz Sate of California. 1. A c comity oil and cas lease affecting Ulds and ether pro-CP-rty executed by the owner of said land and by ct'*ers as Owners of other land in the c.--,=xuty a -ea, for the te--= and t,.?cn the terms, c,;venznts - and provisions therein prr-vidd, re--eed January 5, 1985, in Bock 2915, Page 3.87, of Official Records. Dated: D_� ben 11, 1954. TeYm: 20 years f---t n date hereof and for so long thereafter as oil and gas are p in paying c.:a-=ties. Lessor: Ray_ & Inns Oveackp-- . lessee: T-namscontimntal oil Co. Inc., a 0et1 Corp. Said lease affects that porticn of said 1=11 lying below a depth of 500 feet frm the surface t' r-reof with direct cr fmplid right of eni-y cn the surface the ---of . Ve preseunt cwnershin of said leasehold and other ratte-rs affectiM the interest of the lessen are not shown herein. Affects Lots 2, 4, 6,. S 10 and 3.2. 2. A c==inzty oil and gas lease affeatting this and ether Fru-ce ty ex=zted by the owner of said land and by at.'-.e_rs as owners of other land in the cc m- mity area, for the term and =cn the t -mm, caverants and provisions t erei.n prcvided, recorded Jana:a_*y 21, 1955, in Hook 1931, Page 512, of Official Records. Mted: Sem-tamer 28, 1954.' Term: 2d years F - date hereof and for so lcrg thereafter as ou and gas are pzvdL%md i+n Paying quantities.' lessor: E. L. & Buy Cle=v. Iessee: Belail Corporation, Inc. . Said lease affe&m t`�t portion of said land lying below a-c?eptth-of 500 feet fr= the s,n;face th=reof with direct cr i.*plied right of ' entzy On the surface thereof. EiC~-7=N5 CMT U M...PAS 7 Or'er NO. 168013-5 T: a presant ci-Tr—*5hip of said leasehold and other ratters offec`,-Ing the interest cf the lessee are not shown herein. Affec`.s Lots 1 and 3. 3., A =—==* ty oil and gas lease affec"-i ng this and other prrpe-' .y emcsted Ly the cumer of said land and by others as avers of other land in the v ty area, for the ta= and upon the terms, c7ven- - and pruvi sicrs the-ein provided, recorded Februa*y 25, 1555, in Bock 2974, Page 169, of Official Records. Dated: Jaroary 15, 1955. Te_-m: 2 years fray date hereof and for so lcnq thereafter as oil and gas are preidLx� in paying gmtities. Less= Claude & Cora cock. 7�.ssee: Clevela.nei Petroleum Cor zny, a ccrpo mticn. 'Said lease affects that portion of said land lying below a depth of 500 fee�- f+raa the space thereof with direct or iaplied right of entry en the surface the_-mf. • The present m'netshi; of said leasehold and cthe•- ratters affec'--ig the into, -et of the lessee are nat &hcwrn resin. Affects Ints 14, 16, la, 20 and 22. 4. A deed of trus-t to secure an indebtedness of $375, 000. 00, and any other amounts payable unde- the te-v= thereof, recorded March 31, 1987, as Irstr=ent No. 87-172309, of Official Re--rds. Date is Iarch 12, 1987. Trustor: James E. Kclle*- and Joan Xalle_r, husband and wife as joint tenants, as to an un:1 vide3 ore-balf interest and Lauxo M. Guaranc, a married ran as his sale and separate property, as to an undivided cne half interest, as tenants in c=cn Tr�t+ee: American Secxrities C=Var y, a corporation. Beneficiary: Wells Faro Bank, N. A. , a National BarJurq Association. An assigr=e--it of t*,.,e lessor's irterrest under the lease referred to given as additional security fcr the payment of the indebtedness secured by the deed of trust above renticned, recorded Mach 31, 1987, as 3ns`.rm*nt No. 87- 172310 of Official Records. Exa=ted by: Jam E. Knller and Joan Kzller, husband and wife 'as joint tenants, as to an wi ivided one-half fnt , and • iatao 14. Gvarana, a married man as his sole and separate property, as to an undivided one halt inter, as to -rants in won. In favor of: Wells Fargo Bank, National msociaticn. Affe-alts Lcts 1, 2, 3, 4, 6 & 8. d =Mms mi m um... FAQ 8 Order No. 15a013-5 S. A deers of truz—, to sec a an 'ndd*--a� of $75, 000.00, and any crt!7,.,er amounts payable under the term, ttereaf, recorded K- rh 15, 1977, as Ir.st=e--rt No. 19736, in Bock 12104, Page 710, of Official P cards. 1 ted: Farch 7, 1977. Tru:stor: John C. Wlle+-- :and As.-d T. YuUer, h=tand and wife, Pe%ggy Ann Cate, an u==- ied wcwzn, and Mieiael H. Nam, a single ran. Tnis'we: Peal State, a Par}.zeship. Beneficiary: Paul N. Boos and Yzrgaret Elaine Hoos, hus and and wife as joint tenants. Affects Lct.s 12 & 14. 6. Rights of parties in pcssessien of said land by reason of tmrecorded leases, if any. Kindly forward Said leases for cur ex=inaticn. NOTE: PAYOFF ICU: Nate: Sec-..icn 12413.1, California I=urance Core, c mcnly krx7-m a Asse-mbly Bill 512, berme effectave January 1, 1990. 13zis legislaticn deals with the d s =s..=�-rt of fps debited wit"h any title eZt3tI ac � ng in an escrow of ssbes raw capacity. Zhe law requires timt all frds be dexsited and =11e~ted by the title ent—, ty's escrow mWcr ssbe_s=cr ac=uT-- prior to dishurse*erit any furs. Score methcds of Arding ray subject funds to a holding period utdch gust expire before any funds ray be disbursed. In o_r _,-r to avoid a.:y such delays, all furding should be. done through h wire transfer, certified check or checks drawn cn California financial irs`..ifi,.r•�icns. Note: Mis C==ny does require c=zent Beneficiary gmwids prior to closing. If the emend is expired and a carte_--t dosand ca='=t be obtained, our requirerrents will be as follcws: A. If this cmT.any accepts a ve.�..e`-1 vpiate on the derrand, we array hold an amvmt e;ual to one monthly =tgage payoerrt. MAs hold will be = and above the vet cold ttm lere-er say have stipulated. B. If this c==ny cannot cbtain a verl-al gate cn the demand, we will either pay off the. expired demand or Wait for the alle*XIe demand, at the discretion of the escrow. � 1 Gr°e-- ha. 168013-5 For Your Ccr:ve ie-ni e dRRNOm gm TII'r...E WZRM ristc'm'-s rSM� MIK QXA 122201444) 695 T-wn Center Drive C:s{4a Mesa, CA 92626 'Acct-r 08-•038-104 Ref: Title or r and Officers Name NOTE: California State: Senate Bill 2319, effective Jar=-y 1, 1991, requires that the in all sales of Calirfcr uia real estate, 7.twerein the seller &hcws an cat of state address, withhold 3 1/3% cf t'^e total sales price as Calif orzia State lrx=ne Tax, subject to the various p cvisicrs of t1e law as t`je-rein =twined. ST:kc . Folicy Rate: Contract V54 . Mmlcs-urea: Plats SCI-IEDULE 1 CALIFOKNtA LAND TM.E ASSOCIATION STANDARD COVERAOc POLIC7 -19" the following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, cc attorneys' fees or expenses which arse by reason oh 1. (a) Any law. ordinance or governmental regulation (including but not limited to building or zoning laws. ordinances. or regulalic restricting, regulating, prohibiting or relating to 0) the occupancy, use, or enjoyment of the land: GO the chantter, dimensi or location of any improvement now or hereafter erected on the Ilnd: (leis) a separation in ownership or a change in the dimension or area of the land or any parcel of which the land is or was a part: or 6v) environmental protection. or the effect of any viola of tnese laws. ordinances at governmental regulations. except to the extent that a notice of enforcement thereof or a notice defect. lien or encumbrance resultirvj from a violation or alleged violation allotting the land has been recorded in the public recc At Date of Policy. (b) Any governmental police power not excluded by (a) above. except to the extent that a notice of the exercise thereof or a notic a defect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the pi; records at Date of Policy. i. K:ghts or errunem domain unless notice of the exercise thereof has been recorded in the public records at Date of Policy, but excluding from coverage any taking which has occurred prior to Date of Policy which would be binding on the rights of a purchaser value without knowledge. 1. Defects_ liens. encumbrances. adverse it laims or other matters: (a) whether or not retarded in the public records At Date of Policy, but created. suffered. assumed or agreed to by the ins%. Claimant: Ita not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under policv. ic) resulting in no loss or damage to the insured Claimant: (e) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for theitisured mortgag- for the estate or interest insured by this polity. trner.forceab+lily of the lien or the insured mortgage because of the inability or failure of the insured at Date of Policy, or inability or failure of any subsequent owner of the indebtedness. to comply with the applicable doing business laws of the state in w� the land is situated. ;. Invalidity or uneniorceability of the lien of the insured mortgage. or claim thereof. which arises out of the transaction evidences the insured mortgage and is hasco upon usury or any consumer credit protection or truth in lending law. �. Any claim, which arises out of the transaction vesting in the insured the estate or interest insured by this policy or the lransac: creating the interest of the insured fender. by reason of the operation of federal bankruptcy, state insolvency or similar credit rights laws. it addition to the Exclusions, you are not insurcd against loss. cosit. attomeys' fees. and expenses resulting from: Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessmt or. real property or by the public records. Proceedings by a public agency which may result in taxes or assessments. or notices of such proceedings, whether or not showr the records of such agency or by the public records. wry facts. rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection the land or which may be asserted by persons in possession thereof. Easements. liens or encumbrances. or claims thereof. which are not shown by the public records. Discrepancies. conflicts in boundary lines, shortage in area. encroachments. or any other facts which a correct survey would discic and which are not shown by the public rr:curds. (a) Unpatented mining claims: (b) reservations or exceptions in patents or in Acts authorizing the issuance thereof: (c) water rig' - claims or title to water, whether or not the matters excepted under CA). (b) or (c) are shown by the public reeot AMERICAN LAND TITLE ASSOCIATION OWNER'S POUCY FORM 8 - 1970 (AMENDED =0-17.70) SCE IEDULE OF EXCLUSIONS FROM COVERAGE Any law, ordinance or governmental regulation tincluding but not limited to building and zoning ordinances) restricting Of regulat. or prohibiting the occupancy. use or enjoyment of the land, or regulating the character. dimensions or location of any improvement r. or hereafter erected on the land, or prohibiting a separation in ownerships or a reduction in the dimensions of area of the land, or effect of any violation of any such law. ordinance or governmental regulation. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the put records a; Date of Policy. Defects. liens. encumbrances. adverse claims. or other matters jai created, suffered. assumed or agreed to by the insurcd claim: (b) not known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy or at the, date such claimant acquired an estate or interest insured by this policy and not disclosed in writing by the insured claim to the Company prior to the date such insured claimant became an insured hereunder., (c) resulting in no loss or damage to the insu. claimant: (d) attaching or created subsequent to Date of Policy: or (e) resulting in loss or damage which would not have heen sustair if the insured claimant had paid value for the estate or interest insured by this policy. rrG. 3157.F (Rev M•<tw-W11 SCHEDULE 3 (Continued) AME91CtiN LAND TITLE A.SSOCATiON LOAN POLICY - 1970 (Rev. 4-6-90) WITH ALTO ENDORSEMENT FORM 1 COVERAGE SCHEDULE Of EXCLUVONS FROM COVERAGE The following matters are expressly excluded from she coverage of this policy: 1. Any law, ordinance or governmentat regulation (including but not limited to building and xoning ordinances) restricting or regulat or prohibiting the occupancy, use or enjoyment of land. or regulating the character, dimensiuna or location of any impruvemcnt now hereafter erected on the land. or prohibiting a separation in ownership or a reduction in the dimensions or area of the land. or effect -of any violation of any such law, ordinance or governmental regulation. 1. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the put records at Date of Policy. J. Defects, liens. encumbrances. adverse claims. or other matters (a) created. sudered. assumed or agreed to by the insured efaimz (b) riot known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy o, the date such claimant acquired an estate or interest insured by this policy or acquired the insured mongive and not discloses writing by the insured claimant to the Company prior to the date such insured claimant became in insured hereunder, Sc) resulting no loss or damage to the insured claimant: (d) attaching or created subsequent to Date of Policy (except to the extent insurance afforded herein as to any statutory lien for tabor or material or to the extent insurance is afforded herein as to assessments street improvements under construction or completed at Date of Policy). a. Unenfurceablity of the lien of the insured mortgage because of failure of the Insured at Date of Policy or of any subsequent owr of the indebtedness to comply with applicable doing business laws" of the state in which the land is situated. S. Any claim. which arises out of the transaction creating the interest of the mortgagee insured by this policy, by reason of to operation of federal bankruptcy, state insolvency, or similar creditors' rights laws. AMERICAN LAND TITLE ASSOCIATION LOAN POLICY - (4-6-90) WITH A.LT.04, ENDORSEMENT . FORS( 1 COVERAGE DCLUSIONS FROM COVERAGE 'he fs)ilowing matters are expressly extiuded from the eoverare of this policy and the Company will not pay loss or damage. cos .ttorneys' fees or expenses which arise by reason of: (a) Any law, ordinance or governmental regulation (including but "not limited to building and zoning taws. ordinances. regulations) restricting, regulating, prohibiting or relating to lit the occupancy, use or enjoyment of the land. (u) the charact• dimensions or location or any improvement now or hereafter erected on the land: (M) a separation in ownership or a Orange in t, dimensions of area of the land or any parcel of which the land is or was a pan: or (iv) environmental protection, or the Cffec: violation of these laws, ordinances or governmental regulations. except to the extent that a notice of the enforcement thereof of notice of a defect. lien or encumbrance resulting from a violation or alteSed violation affecting the tand has been recorded in t!• public records at Date of Policy. - tb. Any fovemmental police (power not excluded by tal above, except to the'extent that a notice of the exercise therot or a notice a de ect, lien or encumbrance resulting from a violation or alleged violation affecting the land has been recorded in the pub3 records at Date of Policy. Rights of eminent domain unless notice of the exercise thereof has been recorded in the public records at Date at Policy. but as. excluding from coverage any taking which his occurred prior to Date of policy which would be binding on the rights of a purchasr for value: without knowledge. Defects. liens, encumbrances, adverse claims or other matters: (al created. sufferer!. assumed or agreed to by the insured claimant: (b) not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant ar;4 not disclose in writing to the Company by the insured Claimant prior to the Late the insured claimant became an insured under this polio• to resulting in no loss or damage to the insured claimant: (d) attaching or created subsequent to Date of Policy (except to the extent that this policy insures the priority of the lien of th Insured murtgage uver any statutory lien for services. labor or material or the extent insurance is afforded herein as i assessments for street improvements under construction ve completed at date of policy): or te) resulting in lass or damage which would not have been sustained it the insured claimant had paid value for the insured mortgage Llrteenforeesb7ity of the lien of the insured mortgage because of the inabiliry or failure of the insured at Date of Policy, or lh• inability or failure of any subsequent owner of the indebtedness. to comply with applicable 'doing business laws" of the state in whicr the land is situated. Inw.lidity or unenforCezblity of the lien of the insured murtgage. or claim thereof, which arises out of the transaction' evidences by the Insured mortgage and is based upon usury or any consumer credit protection or truth in lending law. Any statutory lien for services. tabor ear materials (of claim of priority of any statutory ,lien for services, labor or material: over the lied of the insured mortgage) arising tram an improverntnt or work related to the land which is eonlracted for and commence= sub:'equeni to Date of Policy and is not financed In whole or in part by proceeds of the indebtedness secured by the insured mortgage which at Vale of Policy the insured has advanced or is obligated to advjnCe. Any claim, which arises out of the transaction creating the interest of the mongagee in by this policy. by reason of the operation of federal bankruptcy, state insolvency, or similar creditors, rights laws. I SC-IE ULE I <Cor�i AMERICAN LANo TITLE As OC.LATIOM RESIDENTIALMU fNSu Na POUCy - im aCLtlSIOHS in addition to the exceptions in Schedule B. You are not insured against loss, costs, attorneys' fees and expenses resulting from: 1. Governmental police power. and the existence or violation of amr law or govemment regulation. This includes building and zoni ordinances and also laws and regulations concerning. - [and use - improvements on the (and land division 2 environmental protection This exclusion does not limit the zoning coverage described in Items 12 and 13 of Covered Title Risks- 2. The right io take the land by condemning it, unless a notice of taking appears in the public records on the Policy Date. 3. Tide Risks: that are created allowed, or agreed to by you that are known to you. but not to us. on the Policy Date - unless they appeared in the public records. that result in no loss to you that first affect your title fitter the Policy Date - this does not limit the labor and material lien coverage in Item L of Cove. Title Risks. s, failure to pay value for your title. S. Lack of a right: to any land outside the area soecificilly described and referred to in Item 3 of Schedule A or in strects. alleys. or waterways that touch your land. This exclusion dues not limit the access coverage in item S of Covered Title Risks. In addition to the Exclusions. you are not insured against loss. costs. attorneys' lees, and expenses resulting from: t. Ar.y facts, rights. interests or claims which are not shown by the Public Records but which ccwld be ascertained by making inrL of parties in possession of the land. 2- Any Gens or easements not shown by the Public Records. However. this does not limit the affirmative coverage in Item a of cove - Title Risks. 3. My facts about the land not shown by the Public Records which a correct survey would disclose. However, this does not limit . affirmative coverage in Item 12 of Covered Tide Risks. a. (a) Any water rights or daims or title to water in or under the Iand. (b) unparented mining daims: (c) reservations or excepti. in patents or in acts authorizing the issuance thereof. er ..r— f 1 0A... .. 4 ♦6% ATTACHMENT NO. 11 r r • .:.Ir ► • t�r.r : ►.��.II Recording Requested By acid ) When Recorded Return To: ) Brown, Winfield & Canzoncri, Inc. ) 300 South Grand Avenue, Suite 1500 ) Los Angeles, California 90071-3125 ) Attention: Dennis S. Roy, Esq. ) With a copy to ) City of Huntington Beach ) 2000 Main Street ) Huntington Beach, CA 92648 ) Attention: City Clerk ) (Space Above this Line for Recorder's Use) u gc:► r /u f: u1�l.i1 r: ►ti ; r rI umasxi I# [werml oil plavo K4343 ma W.61"t'aam Imall (a) Parties. This Memorandum of Amended and Restated Disposition and Development Agreement ("Memorandum"), dated for identification purposes as of December 16, 1996, is entered into by and between THE REDEVELOPMENT AGENCY OF THE CITY OF HUrTTINGTON BEACH, a public body corporate and politic ("Agency") and TT DEVELOPMENT COMPANY, LLC, a California limited Iiability company ("Developer"): (b) j)isno ition and Development Agreement. Agency and Developer have executed an Amended and Restated Disposition and Development Agreement ("DDA") dated for identification purposes as of December 16, 19%, covering that certain real property located in the City of Huntington Beach, County of Orange, State of California, more fully described in Exhibit "A" attached hereto and incorporated herein by this reference. All of the terms, conditions, provisions and covenants of the DDA are incorporated in this Memorandum by reference as though written out at length herein, and the DDA and this Memorandum shall be deemed to constitute a single instrument or document. Attachment 11 Page 1 of 7 SF/s:0:SF-96Agm:Atch1208 121'9/96 (c) PP=se of Memorandum. This Memorandum is prepared for recordation ` purposes only, and in no way modifies the terms, conditions, provisions and covenants of the DDA. In the event of any inconsistency between the terms, conditions, provisions and covenants of this Memorandum and the DDA, the terms, conditions, provisions and covenants of the DDA shall prevail. Attachment 12 Page 2 of 7 S F/::G: S F-%Agx: AWh 1208 12M% The parties have executed this Memorandum at the place and on the dates specified immediately adjacent to their respective signatures. Executed. 1119 at "Agency" THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body corporate and politic Executed ,19 at SFIs:G:SF-95Agec:Atch 1208 11"6 By: Chairman By: Executive Director "Developer" JT DEVELOPMENT COMPANY, LLC, a California limited liability company By: John Tillotson By: John Tsai By: ' Mike Roberts Attachment I Page 3 of 7 STATE OF CALIFORNIA ) ) SS. COUNTY OF ORANGE ) On this day of ,199� before me, the undersigned, a Notary Public in and for said State, personally appearedknown to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On this day of _ , 199 before me, the undersigned, a Notary Public in and for said State, personally appeared known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument as the (insert title of the officer) of the Redevelopment Agency of the City of Huntington Beach and acknowledged to me that the Redevelopment Agency of the City of Huntington Beach executed it. Signature of Notary Public Attachment 11 Page 4 of 7 SFls:G.SF-%AV=:A(a 1209 I V&% STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On _, before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachment 11 - Page 5 of 7 sF1s:a:sr•-96Agnx:Atch 1209 12M96 STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE } On , before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the %ithin instrument as the member of the limited liability company that executed the within instrument, and acknowledged to me that such limited liability company executed the same. WITNESS my hand and official seal. Signature of Notary Public Attachment 1 I Page b of 7 SF1t:0:SF.96Agree:Atd 1208 12,V% E-X'IiIBIT "A* LFGAI DESCIUP-D B1ock304 of Huntington Beach Tract, County of Orange, as per map iecorded in Book 3, page 36 of Miscellancous Maps in the Office of the County Recorder of said county. SFfs4.SF�96Apee Atd,! 208 l2MW Attachment 1 ! Page 7 of 7 9