HomeMy WebLinkAboutPC Group Retail, LLC - 2013-12-16 Dept. I D PW 13-076 Page 9 of 3
Meeting Date_-12/16/201'3'
CITY OF HUNTINGTON BEACH
REQUEST FOR. CITY COUNCIL ACTIN
MEETING DATE: 12/16/2013
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Manager
PREPARED BY: Travis K. Hopkins, PE, Director of Public Works
Scott Hess,AICP, Director of Planning and Building
SUBJECT: Approve and authorize execution of four amended Agreements reflecting new
ownership related to the Pacific City Development Project.
Statement of Issue:
In 2007, a Special Utility Easement Agreement, License and Maintenance Agreement, Agreement
Regarding City Requirements, and an Agreement Regarding Village Green Park were executed
between the City of Huntington Beach and the (then) owners of the Pacific City development
property (Makailon Atlanta Huntington Beach, LLC). It is now necessary to replace these original
agreements with amended agreements between the City and the new owners of the Pacific City
property.
Financial Impact:
None.
Funding Source:
Not applicable.
Recommended Action:
A) Approve the"Amended and Restated Special Utility Easement Agreement" between 21002 HB,
LLC, PC Group Retail, LLC, and the City of Huntington Beach and authorize execution by the
Mayor and City Clerk (Attachment No. 1); and,
B) Approve the "Amended and Restated License and Maintenance Agreement" between 21002
HB, LLC, PC Group Retail, LLC, and the City of Huntington Beach and authorize execution by
the Mayor and City Clerk(Attachment No.,2); and,
C) Approve the"Amended and Restated Agreement Regarding City Requirements" between
21002 HB, LLC, PC Group Retail, LLC, and the City of Huntington Beach and authorize
execution by the Mayor and City Clerk (Attachment No. 3); and,
D) Approve the"First Amendment to Agreement Regarding Village Green Park" between 21002
HB, LLC, PC Group Retail, LLC, and the City of Huntington Beach and authorize execution by
the Mayor and City Clerk. (Attachment No. 4)
Item 20. - I ffB -22-
Dept.ID PW 13-076 Page 2 of 3
Meeting Date: 12/16/2013
Alternative Action(s):
Do not approve the Agreements and direct staff accordingly.
Background:
On June 7, 2004, the City Council took formal action to approve Environmental Impact Report No.
02-01, Tentative Tract Map No. 16338, Conditional Use Permit No. 02-20, Special Permit No. 02-
04, Coastal Development Permit No. 02-12, and Conceptual Master Plan for the Pacific City project.
On August 20, 2007, Huntington Beach City Council took formal action to approve Final Tract Map
No. 16338 and various agreements for the Pacific City development. These agreements included a
Special Utility Easement Agreement, License and Maintenance Agreement, Agreement Regarding
City Requirements and Agreement Regarding Village Green Park and were executed between the
City of Huntington Beach and the property owner at the time, Makallon Atlanta Huntington Beach,
LLC (i.e. "Makar").
In September 2011, the site was subsequently acquired by a new property owner, 21002 HB, LLC.
On August 20, 2012, City Council approved Entitlement Plan Amendment (EPA) No. 12-05 to
amend existing Conditions of Approval and enter into Development Agreement No. 12-001 with the
new property owner. The approved modifications to the Conditions of Approval were primarily
related to affordable housing, agreement with school districts, park land in-lieu fees, phasing of the
project developments, and type of amenities within the Village Green Park.
The new owner then applied for, and successfully acquired, City approval for modifications to the
previously approved residential project. These modifications were approved on October 23, 2012,
as EPA No. 12-07, which was the request to amend the previously approved site plan, floor plans
and elevations for the residential portion of the Pacific City project. Condition of Approval No. 2(b)
of this entitlement states: "All existing Agreements between the City of Huntington Beach and the
original Pacific City property owner shall be replaced with comparable agreements(s) to be
approved and executed with the City and the new property owners......The intent of this Condition
of Approval is to capture and transfer certain responsibilities identified in the original agreement
between the City and the new property owner(s) in a manner consistent with the requirements of
the original project approved Conditions of Approval."
The Pacific City commercial property was subsequently purchased by PC Group Retail, LLC, who
applied for and successfully acquired City approval for modifications to the previously approved
project. These modifications were approved as Entitlement Plan Amendment (EPA) No. 13-01
which was the request to permit modifications to the commercial site plan, floor plans, and
elevations originally approved under Tentative Tract Map No. 16338, Conditional Use Permit No.
02-20, Special Permit No. 02-04 and Coastal Development Permit No. 02-12. The project
modification also updated the 2004 project entitlements for consistency with current standards
regarding building layout and architectural_, design while maintaining compatibility with the
surrounding area.
On September 16, 2013, City Council took formal action to approve Entitlement Plan Amendment
No. 13-001/Special Permit No. 13-001/Variance No. 13-008 (Amendment to TTM 16338/CUP 02-
20/SP 02-04/CDP 12-12 for the Pacific City commercial site. Condition No. 4(d) of this entitlement
also states: "All existing Agreements between the City of Huntington Beach and the original Pacific
City property owner shall be replaced with the comparable agreement(s) to be approved and
executed with the City and the new property owners."
The Special Utility Easement Agreement, License and Maintenance Agreement, Agreement
Regarding City Requirements, and Agreement Regarding Village Green Park have now been
approved as to form by the City Attorney's Office, signed by the new owners, and are ready for City
Council approval and final execution.
HB -273- Item 20. - 2
Dept.ID PW 13-076 Page 3 of 3
Meeting Date: 12/16/2013
Analysis:
A Special Utility Easement Agreement is a typical requirement for a development project where
public water systems are located on private property. The agreement defines each of the party's
responsibilities for the public water improvements located within the easement area. It defines
responsibilities and requirements for access to the property to maintain, repair, relocate or replace
water utilities and to restore any work areas.
The License and Maintenance Agreement ensures continual maintenance of improvements
installed within the public right-of-way adjacent to and within the Pacific City Development. This
agreement delineates both the developer's and City's obligations with respect to the maintenance
and replacement of landscaping, hardscape, and other obligations.
In general, the Pacific City homeowner and commercial associations are responsible for the
maintenance, repair and replacement of all installed landscaping and hardscape within the
improvement area. Maintenance includes, but is not limited to, removal of graffiti, paint, stickers,
wax and other materials. Landscaping is to be maintained in accordance with City Standards. Any
damaged hardscape or landscape must be repaired promptly.
The Agreement Regarding Village Green Park and the Agreement Regarding City Requirements
define these responsibilities. Specifically, the conditions of approval require that the Village Green
Park remain dedicated in perpetuity for public use and not converted to private use. The proposed
agreement accomplishes this permanent public use of the park. The Agreement Regarding City
Requirements binds the future associations to the conditions, restrictions, and guidelines found in
the project's approved conditions of approval, code requirements, and mitigation measures.
Public Works Commission Action:
Not required.
Strategic Plan Goal:
Provide quality public services with the highest professional standards to meet community
expectations and needs, assuring that the City is sufficiently staffed and equipped overall.
Environmental Status:
The action to approve and execute the agreements is exempt from the requirements of the
California Environmental Quality Act pursuant to Section 16268(a).
Attach ent(s):
1. Amended and Restated Special Utility Easement Agreement
2. Amended and Restated License and Maintenance Agreement
3. Amended and Restated Agreement Regarding City Requirements
4. First Amendment to Agreement Regarding Village Green Park
Item 20. - 3 HB - -
ATTACHMENT # 1
® RECORDING REQUESTED BY Recorded in official Records,Orange County
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Recording Requested By and 2013000703087 8:00 am 12123113
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City Clerk
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
(Space above this line for Recorder's use only)
AMENDED AND RESTATED
SPECIAL UTILITY EASEMENT AGREEMENT
THIS AMENDED & RESTATED SPECIAL UTILITY EASEMENT AGREEMENT
("Agreement') is made by and between 21002 HB, LLC, a Delaware limited liability company
("21002 HB"), PC Group Retail, LLC, a California limited liability company ("PC Group Retail")
and the City of Huntington Beach, a municipal corporation of the State of California ("City') with
reference to the following facts:
A. 21002 HB is the owner of that certain real property (the "Residential Property')
situated in the City of Huntington Beach, County of Orange, State of California, described as Lot
1 of Tract No. 16338, as shown on a Subdivision Map recorded in Book 893, Pages 7 through
12, inclusive, of Miscellaneous Maps, in the Office of the County Recorder for the County of
Orange, State of California (the "Tract flap").
B. PC Group Retail is the owner of that certain real property (the "Commercial
Property') described as Lots 2 and 3 of the Tract Map.
C. The Residential Property and the Commercial Property (collectively the
"Property') are the subject of a Master Plan for the Pacific City Mixed Use Project, which
contemplates residential and retail improvements and a hotel (the "Project').
D. City and the predecessor in interest to 21002 HB and PC Group Retail, Makallon
Atlanta Huntington Beach, LLC, a Delaware limited liability company entered into a Special
Utility Easement Agreement dated as of August 20, 2007, and recorded September 28, 2007,
as Instrument No. 2007000588430 of the Official Records of the Orange County Recorder (the
"Prior Agreement').
E. The Prior Agreement contemplated that Makallon would record separate
declarations of covenants, conditions, restrictions and reservations of easements against the
Residential Property and the Commercial Property and form a property owners association for
the Commercial Property and a residential owners association for the Residential Property
which would, in turn, be members of a master association. The use of tiered property owners
associations was based upon the initial Conditions of Approval for the Project.
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F. On November 8, 2012, the Planning Commission of the City approved
Entitlement Plan Amendment 12-009 which, among other things, deleted the requirement for the
tiered property owners association and recommended approval of a Pacific City Master
Declaration of Covenants, Conditions and Restrictions (the "Project CC&Rs") which, among
other things, created reciprocal easements among the Residential Property and the Commercial
Property, incorporated by reference the terms and conditions of the Prior Agreement, as
subsequently amended and modified by the City, and allocated among the Residential Property
and the Commercial Property the development conditions and responsibilities established by
the City in connection with the Project approvals. The Project CC&Rs were recorded
November 20, 2012 as Instrument No. 2012000716927 of the Official Records of Orange
County, California.
G. The Prior Agreement contained a grant of utility easement over, under, across
and through a proposed internal roadway located on the Residential Property as more
specifically described in Exhibit A, attached hereto.
H. The parties desire to fully amend and restate the Prior Agreement to reflect (i) the
elimination of the requirement for the tiered property owners associations (ii) the recordation of
the Project CC&Rs, and (iii) the release of the Commercial Property from the terms and
conditions of the Prior Agreement except for the obligations of the Commercial Property owner
under the CC&Rs.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto fully amend and restate the Prior Agreement as
follows:
1. Termination of Prior Agreement ad to Commercial Property. The Prior
Agreement is hereby terminated as to the Commercial Property and is of no further force and
effect with respect thereto, except for the obligations of the Commercial Property owner under
the CC&Rs..
2. Grant of Utility Easement. Subject to the provisions of this Agreement, 21002
HB grants to City a nonexclusive, irrevocable easement (the "Utilities Easement") for access,
ingress and egress, construction, installation, operation, maintenance, repair, improvement,
relocation and replacement of pipeline or pipelines, with incidental ordinary and necessary
appurtenances and connections, structures for the transmission and delivery of water, or
reclaimed water, including but not limited to, manholes, measuring devices, air valves, blow-
offs, stations, standpipes, fire hydrants, and service connection structures appurtenant to said
pipeline or pipelines which structures may extend above the surface of the ground (collectively
"Facilities") for the purpose of water transmission and delivery line or lines in, over and under
the portion of the Residential Property shown on Exhibit A, attached hereto (the "Utility
Easement Area'), together with the right to enter and traverse upon other portions of the
Residential Property, as reasonably necessary, in order to obtain access to the Utility Easement
Area and to deposit tools, implements and materials thereon and prevent any buildings or other
structures from being placed on the Residential Property that would unreasonably interfere with
the City's access to or use of the Utility Easement Area without the City's consent, except as
hereinafter provided.
21002 HB and City may agree to revise the Utility Easement Area. It shall be a
minimum total width of 10 feet clear (5 feet on either side and beyond the end of the water
pipeline or appurtenance) of unobstructed paved or landscaped surface, pursuant to the City
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Utilities Division standards. Where access is restricted or impacted by structures, walls or
curbs, the Utility Easement Area shall be a minimum width of 20 feet to allow for access and
maintenance operations, pursuant to the City Water Division standards. No structures, parking
spaces, trees, curbs, walls or sidewalks shall be allowed within the Utility Easement Area.
Utilities Division personnel shall have access to public water facilities and appurtenances at all
times via knox box at any vehicular gated entry to the Utility Easement Area.
3. Relocation of Utility Easement. 21002 HB may request that City relocate, or
allow 21002 HB to relocate, all or a portion of the Utility Easement Area, and all or a portion of
the Facilities located therein (collectively, the "Relocated Utility Facilities') to a functionally
equivalent alternate location within the Residential Property approved by City. The Relocated
Utility Facilities shall be constructed and installed in a good and professional manner, at no cost
to City, and meet the requirements of all applicable laws, regulations, codes, ordinances and
orders of any governmental or other regulatory entity, including without limitation, any additional
requirements requested by City. The course and/or location of the Relocated Utility Facilities
shall be approved by City, and 21002 HB shall grant to City a new easement for the Relocated
Utility Facilities (the "Relocated Utility Easement') in the course and/or location so approved
by City. The terms and conditions of this Agreement shall apply to the Relocated Utility
Easement, and the form of the Relocated Utility Easement shall be reasonably satisfactory to
City. Upon the acceptance of the Relocated Utility Easement by the City, the Relocated Utility
Easement shall be recorded in the official records of the County.
4. Limitation on Use. City acknowledges that the Utility Easement granted herein
is nonexclusive. City agrees that the use of the Utility Easement granted herein shall not
impede work (a) required to be performed by a private or public utility company to repair or
maintain any functioning, in-place utility facility located on the Residential Property provided that
21002 HB shall use reasonable efforts to attempt to cause the utility to perform such work, at no
additional cost to 21002 HB, in a manner that will not unreasonably interfere with the City's use
of the Residential Property, or (b) by 21002 HB and successor owners as may reasonably be
required for construction, installation, repair or maintenance of improvements on the Residential
Property. 21002 HB, however, reserves the right to utilize the Residential Property for any use
consistent with (i) the development of the Residential Property as part of a common interest
planned development, (ii) pedestrian and vehicular activities consistent with public use of the
Residential Property, and (iii) private utility purposes that do not adversely affect the Facilities
located in the Utility Easement Area, including without limitation, lines, pipes, conduits,
manholes, above ground markers and other convenient structures, equipment and fixtures so
long as the location of private utilities shall meet the requirements of all applicable laws,
regulations, codes, ordinances and orders of any government or other regulatory entity and
must be approved by the City. 21002 HB shall not alter the grade, surface or overhead
conditions of the Utility Easement Area without prior written approval from City. 21002 HB
agrees that there shall be no less than twenty feet of clear vertical space immediately above the
surface of the Utility Easement Area measured from finished ground level, nor shall any trees be
located within, or overhang onto, the Utility Easement Area.
5. Term of Easement. The easements granted in this Agreement shall commence
on the date of recordation hereof and shall be perpetual, unless terminated, in whole or in part,
in accordance with applicable law, or as provided in Section 3. The City, may, however,
terminate these easements at any time as to all or any portion of the Residential Property by
written notice to 21002 HB.
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6. Conditions of the Residential Property.
(a) Maintenance. City agrees to maintain, or cause to be maintained, the
Facilities located within the Utility Easement Area in good working order and condition
consistent with the manner City maintains other City-owned utilities. 21002 HB agrees to
maintain, or cause to be maintained, the surface improvements on the Residential Property,
including any enhanced paving, landscaping and irrigation, in a neat and clean condition.
Except as specifically provided herein, City shall not be obligated to make any repairs,
replacements or renewals of any kind, nature of description to the Residential Property,
including the improvements at any time located on the Residential Property. In the event City,
in exercise of its rights granted herein, is required to excavate, alter or otherwise remove all or a
portion of any improvements located within the Utility Easement Area for maintenance, repair or
replacement of the Facilities, City agrees to restore, or cause the restoration of, such
improvements to the condition existing prior to the performance of such work, which shall
include, without limitation, concrete, asphalt or other standard roadway surfaces. In connection
therewith, City shall not be responsible for restoring any landscaping, irrigation, or enhanced
treatment or paving that has been added to the Utility Easement Area, including without
limitation, the use of cobblestone, brick, tile and other similar treatments. 21002 HB shall be
responsible for the replacement of any such enhanced treatment if removed by City in the
exercise of its rights under this Agreement. Upon termination of the Utility Easement, or any
portion thereof, City shall surrender 'use and possession of the Residential Property, or
applicable portion thereof, free and clear of any liens or encumbrances relating to or arising in
connection with the use of the Residential Property by reason of the Utility Easement. City shall
not permit any claim, lien or other encumbrance arising from its use of the Utility Easement Area
to accrue against or attach to said easement and right of way or the interest of 21002 HB in the
land in, on and under which said easement is granted.
(b) Additional Maintenance - City Required Provision. 21002 HB shall repair,
replace and restore, at its sole cost and expense, any enhanced pavement surface treatment
constructed per the improvement plans approved by the City that may be affected by
maintenance and/or repair of public water facilities (i.e., pipelines, meters, fire hydrants, valves,
meter boxes, vaults, appurtenances, etc.) performed by the City in the Utility Easement Area or
in Pacific View Avenue, as described on Exhibit A. The City shall have no obligation for
maintenance, repair, or replacement of enhanced pavement treatments resulting from City
maintenance and repair to public water improvements and appurtenances located within the
Utility Easement Area and Pacific View Avenue.
7. Assignment and Release. 21002 HB shall have the right, subject to receipt of
the appropriate approvals and consents from the City, to subdivide, develop and improve the
Residential Property with one or more residential product types and, in connection therewith,
may form one or more residential homeowners associations. In the event that one or more
residential homeowners associations are formed, all of 21002 HB's rights and obligations with
respect to the Residential Property hereunder, may be assigned to and assumed by one of such
residential associations. In such event, 21002 HB shall cause the applicable residential
association to expressly ratify the assumption of 21002 HB's rights and obligations hereunder in
a recorded agreement. Upon such assignment of its rights and obligations to such residential
association, 21002 HB shall be automatically released from any further obligations hereunder.
Notwithstanding the above, the assignments contemplated in this Section are condition upon
City approval of the covenants, conditions and restrictions that shall govern the applicable
residential association.
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8. Indemnification.
(a) Indemnity-Utility Easement. City shall indemnify, defend and hold 21002
HB, its officers, directors, shareholders, members, employees, agents, successors and assigns
(including, but not limited to, any residential association upon assignment of 21002 HB's rights
and obligations hereunder) (hereinafter collectively called "Indemnified Parties') harmless from
all liabilities, penalties, costs, damages, expenses, causes of action, claims or judgments
(including without limitation reasonable attorneys' fees) (collectively, "Indemnified Claims"),
resulting from (i) injury or the death of any person (including without limitation any Indemnified
Party) or physical damage to property, real or personal, of any kind wherever located and by
whomever owned (including, without limitation, property owned by an Indemnified Party), which
injury, death or physical damage arises out of or is connected with City's (or City's officers,
employees, agents, contractors, licensees, or invitees) use or occupancy of any of the
Residential Property under the authority of the Utility Easement, except to the extent that such
Indemnified Claims are caused by the negligence or willful wrongful acts or omissions of any
Indemnified Party, and (ii) the use, generation, processing, production, packaging, treatment,
storage, emission, discharge or disposal of Hazardous Materials (as that term is defined herein
below) on or about the Residential Property by City, its agents, employees, contractors, invitees
or licensees in connection with the exercise of City's rights under the Utility Easement. For
purposes of this Section 8, the term "Hazardous Materials"shall mean any substance, material
or waste that, because of its quantity, concentration, or physical or chemical characteristics,
poses and significant present or potential hazard to human health and safety or to the
environment, including, but not limited to petroleum, petroleum-based products, natural gas, or
any substance, material, or waste that is or shall be listed, regulated or defined by federal, state
of local statute, regulation, rule, ordinance or other governmental requirement to be hazardous,
acutely hazardous, extremely hazardous, toxic, radioactive, biohazardous, infectious, or
otherwise dangerous.
(b) Notice. 21002 HB agrees to give prompt notice to City with respect to
any Indemnified Claims initiated or threatened against 21002 HB, at the address for notices to
City set forth herein. City shall, at its option but subject to the reasonable consent and approval
of 21002 HB, be entitled to control the defense, compromise or settlement of any such matter
through counsel of City's own choice; provided, however, that in all cases 21002 HB shall be
entitled to participate in such defense, compromise, or settlement at its own expense.
9. Litigation Expenses.
(a) General. If either party hereto brings an action or proceeding (including
any cross-complaint, counterclaim, or third-party claim) against the other party by reason of a
default, or otherwise arising out of this Agreement, the prevailing party in such action or
proceeding shall NOT be entitled to its costs and expenses of suit, including but not limited to
reasonable attorneys' fees, which shall be payable whether or not such action is prosecuted to
judgment.
(b) Alternative Dispute Resolution. City and 21002 HB, by mutual
agreement, may, but are not required to, submit any factual or other (to the extent City is not
prohibited by law or otherwise from doing so) dispute arising under this Agreement to non-
binding arbitration, mediation, judicial reference or other alternate dispute resolution mechanism
('ADR') of non judicial dispute resolution. The party requesting ADR shall give written notice of
its request, specifying the requested ADR procedure, to the other parties, who shall notify the
requesting parties of its agreement or refusal to proceed within a reasonable time after receipt
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of the requesting notice. If the parties agree to proceed, they shall select a mutually acceptable
individual, with qualifications appropriate to the subject matter of the dispute, to conduct the
designated ADR, or, if the parties cannot agree on such individual, they shall submit the dispute
for the applicable ADR to a commercial ADR service. In all events, the proceedings shall be
conducted only in a manner acceptable to both parties. The parties may enter into operating
memoranda from time to time to establish procedures for the initiation and conduct of such ADR
mechanisms.
10. Time. Time is of the essence of this Agreement and each and every part hereof.
11. Easements Appurtenant. Each of the easements granted or reserved herein
shall be appurtenant to, and shall pass with title to, the properties benefited or burdened
thereby. Each of the covenants set forth in this Agreement, including without limitation the
obligation of City to indemnify 21002 HB pursuant to Section 9 of this Agreement (i) shall run
with the land; (ii) shall be binding upon, and shall inure to the benefit of, any person or entity
having or acquiring any interest in any portion of any property benefited or burdened thereby,
during the period of such person's or entity's ownership, and all of their respective successive
owners and assigns; and (iii) shall be binding upon, and shall inure to the benefit of, the property
benefited or burdened thereby and every portion thereof and interest therein.
12. Amendment. This Agreement may be amended or otherwise modified only in
writing signed and acknowledged by 21002 HB and City Council, or the successors and assigns
of each, subject to the provisions of Section 13 hereof.
13. Delegation of Authority. City hereby delegates to City Manager or his or her
designee the authority to implement all provisions of this Agreement.
14. Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns (except as
otherwise specifically provided in Section 15 below), including without limitation all grantees and
other successors-in-interest of 21002 HB in any of the Residential Property.
15. Exclusive Benefit of Parties. The provisions of this Agreement are for the
exclusive benefit of 21002 HB and City and their successors and assigns, subject to the
provisions hereof, and not for the benefit of nor give rise to any claim or cause of action by any
other person; and this Agreement shall not be deemed to have conferred any rights upon any
person except 21002 HB and City. Nothing herein shall be deemed a dedication of any portion
of the Residential Property to or for the benefit of the general public. The easements herein
granted are in gross and for the personal benefit solely of City.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
17. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be entitled to be the original and all of which shall constitute one and the
same agreement.
18. References; Titles. Wherever in this Agreement the context requires, reference
to the singular shall be deemed to include the plural. Titles of sections and paragraphs are for
convenience only and neither limit nor amplify the provisions of this Agreement.
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19. Notice. Any notice given under this Agreement shall be in writing and given by
delivering the notice in person, by commercial courier or by sending it by registered or certified
mail, or Express Mail, return receipt requested, with postage prepaid, to the mailing address
listed below or any other address notice of which is given. For the convenience of the parties,
copies of notices may also be given by telefacsimile, to the telephone number listed below or
such other numbers as may be provided from time to time.
21002 HB: The address for the owner(s) of all or any portion of the
(or successor) Residential Property as shown on the records of the
Orange County Tax Collector
City: Director of Public Works
2000 Main Street
Huntington Beach, CA 92648
Telefacsimile: (714) 536-1573
City Manager
2000 Main Street
Huntington Beach, CA 92648
Telefacsimile: (714) 536-1573
Any mailing address or telefacsimile number may be changed at any time by
giving written notice of such change in the manner provided above at least ten (10) days prior to
the effective date of the change. All notices under this Agreement shall be deemed given,
received, made or communicated on the date personal receipt actually occurs or, if mailed, on
the delivery date or attempted delivery date shown on the return receipt. A person may not give
official or binding notice by telefacsimile. The effective time of a notice shall not be affected by
the receipt, prior to receipt of the original, or a telefacsimile copy of the notice.
20. Severability. If any provision of this Agreement shall to any extent be invalid or
unenforceable, the remainder of this Agreement (or the application of such provisions to
persons or circumstances other than those in respect of which it is invalid or unenforceable)
shall not be affected thereby, and each provision of this Agreement, unless specifically
conditioned upon such invalid or unenforceable provision, shall be valid and enforceable to the
fullest extent permitted by law.
21. Entire Agreement. This Agreement, together with any attachments hereto or
inclusions by reference, constitute the entire agreement between the parties on the subject
matter hereof, and this Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements and understandings, if any, between the parties hereto with respect
to the easements which are the subject matter of this Agreement.
22. Compliance With Laws. City, at City's expense, shall comply with all laws,
statutes, ordinances, rules and regulations of federal, state and local authorities (including,
without limitation, City itself) having jurisdiction over the Residential Property, now in force or
hereafter adopted, with respect to the use by City of the Residential Property under the authority
of the easements herein granted.
23. Survival. All representations, warranties, waivers, and indemnities given or
made hereunder shall survive termination of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto on
2013.
21002 HB, LLC, a Delaware limited CITY OF HUNTINGTON BEACH, a
liability company municipal corporation of the State of California
By: - - 'ruga-r
Name: i sTc u&,K Mayor -
Title: Vi " PofAFS.
ATTEST:
PC GROUP RETAIL, LLC, a California
limited liability company
4yy-� k-5o�a, L.. F1T
By: �
Name: APPROVED AS TO FORM:
Na
Title:
+tAor ' y {1-)v-
INITIATED AND APPROVED:
(-Director of Public Work
REVIEVJE ND APPROVED:
Ci y Mart ger
799091.02/so
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IN ITNESS WHEREOF, this Agreement has been executed by the parties hereto on
/''t k 12013.
21002 HB, LLC, a Delaware limited CITY OF HUNTINGTON BEACH, a
liability company municipal corporation of the State of California
COUNTERPART
By:
Name: Mayor
Title:
ATTEST:
PC GROUP RETAIL, LLC, a C ornia
limited liability company
City Clerk
By. APPROVED AS TO FORM:
Name:
Title:
(j:� L..t�dsay act
ity Atto ney
INITIATED AND APPROVED:
irector of Public W rks
REVIEWED AND APPROVED:
City Manager
799091.02/SD
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STATE OF FLORI��D""A""A� )
COUNTY OF M I tTY'►14KC )
On Vh"�� 2013, before me,
OA a Notary Public, personally appeared
5 r ri-A I , who proved to me on the basis of satisfactory evidence to be the
persoriko whose name (gare subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/�ffz/their authorized capacity#eo, and that by
his/her/their signature,sj on the instrument the person;(< or the entity upon behalf of which the
personWacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Florida that the
foregoing paragraph is true and correct.
WITNESS my hand and Official seal.
Notary Oublic
ERICA V.CARTER
NOTARY PUBLIC
(Seal) STATE OF FLORIDA
Comm#OD0933162
®re Expires 1/29/2014
799091.02/SD
132227-00009/4-5-13/lab/lab '9'
STATE OF CALIFORNIA )
COUNTY OF,�64Q64( to-' )
On Nay 2013, before me,
'�a-'tc 'S- tszit a Notary Public, personally appeared
sayVo >r— , who proved to me on the basis of satisfactory evidence.to be the
person(s5 whose name(s) is/ar4i�'subscribed to the within instrument and acknowledged to me
that he/she hey executed the same in his/her;e+r authorized capacity(iW, and that by
his/hefAh& signature(t) on the instrument the person(o, or the entity upon behalf of which the
persono acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and Official seal.
BARBARA S. BUTTS
Commission#r 1937648
Z Notary Public-California =
Z Santa Barbara County Notary Public
My Comm.Expices Jun 19,2015
(Seal)
799091.02/SD
132227-00009/4-5-13/lab/lab _9_
STATE OF CALIFORNIA )
COUNTY OF )
2013, before me,
a Notary Public, personally appeared
�xa a�.7M �,--, who proved to me on the basis of satisfactory evidence to be the
person whose na e(s) is/are subscribed to the within instrument and acknowledged to me
that he/sheA*erexecuted the same in his/herftheir authorized capacity0es), and that by
his/h rithLgr'signatureW on the instrument the person(*, or the entity upon behalf of which the
person(&)-acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my gin Official seal.
ROBIN ESTANISLAU
]j COMMISSION 11 2017380 0
Z ='" Notary Public-California QKi"it.i
ORANGE COUNTY
MComm ExpesApr 1.2017 Rota ublic
(Seal)
799091.02/SD
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STATE OF CALIFORNIA )
COUNTY OF ' )
On , 2013, before me,
o�147 e •�s ._ a Notary Public, personally appeared
OO.h dc, r h h, who proved to me on the basis of satisfactory evidence to be the
person( -whose i e{s) is/afe subscribed to the within instrument and acknowledged to me
that hefshe/tom executed the same in dais/her/t#ei» authorized capacity(, and that by
Sher/t#eir-signature(&)-on the instrument the person(, or the entity upon behalf of which the
person(s)-acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and Official seal.
ROBIN ESTANISEAU t
a yP, COMMISSION#2017380 p
? Notary Public-Calitomia Notary Public
ORANGE COUNIY
My Comm Expires Apr 1.2017
(Seal)
799091.02/SD
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EXHIBIT °An
UTILITY EASEMENT AREA
PACIFIC CITY - HUNTINGTON BEACH
NTA AVENUE
'r
TRACT NO. 16338
old
VILLAGE cn
r GREEN `'-
PARK -�
_ 0
LEGENO: Cow 3 `
UTILITY EASEMENT AREA
PORTIONS OF PACIFIC VIEW AVENUE
r'
DATE: AUGUST 9, 2007
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FMILTl'AC H IVI E iV T #2
RECORDING REQUESTED BY
;=IRST AMERICAN TITLE CO. Recorded in Official Records,Orange County
4ATIONAL COMMERCIAL SERVICES Hugh Nguyen,clerk-Recorder
�.)C-,.�)-5Bboa6-Sc I III I I 1 11111111111111111111111111 111[1111111111111111148.00
Recording Requested By and * $ R 0 0 0 6 4 0 1 3 8 9 $
When Recorded, Return To: 2013OW703086 8:00 am 12123113
48 404 Al2 F13 14
City Clerk 0.0o 0.00 0.00 0.00 39.00 0.00 0.00 0.00
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
(Space above this line for Recorder's use only)
AMENDED AND RESTATED
LICENSE AND MAINTENANCE AGREEMENT
THIS AMENDED AND RESTATED LICENSE AND MAINTENANCE AGREEMENT
("Agreement') is made by and between 21002 HB, LLC, a Delaware limited liability company
("21002 HB"), PC Group Retail, LLC, a California limited liability company ("PC Group Retain')
and the City of Huntington Beach, a municipal corporation of the State of California ("City") with
reference to the following facts:
A. 21002 HB is the owner of that certain real property (the "Residential Property")
situated in the City of Huntington Beach, County of Orange, State of California, described as Lot
1 of Tract No. 16338, as shown on a Subdivision Map recorded in Book 893, Pages 7 through
12, inclusive, of Miscellaneous Maps, in the Office of the County Recorder for the County of
Orange, State of California (the "Tract Map").
B. PC Group Retail is the owner of that certain real property (the "Commercial
Property") described as Lots 2 and 3 of the Tract Map.
C. The Residential Property and the Commercial Property (collectively the
"Property") are the subject of a Master Plan for the Pacific City Mixed Use Project, consisting of
residential and retail improvements and a hotel (the "Project").
D. City and the predecessor in interest to 21002 HB and PC Group Retail, Makallon
Atlanta Huntington Beach, LLC, a Delaware limited liability company entered into a License and
Maintenance Agreement dated as of August 20, 2007, and recorded September 28, 2007, as
Instrument No. 2007000588431 of the Official Records of the Orange County Recorder (the
"Prior Agreement").
E. The Prior Agreement contemplated that Makallon would record separate
declarations of covenants, conditions, restrictions and reservations of easements against the
Residential Property and the Commercial Property and form a property owners association for
the Commercial Property and a residential owners association for the Residential Property and
that which would, in turn, be members of a master association. The use of tiered property
owners associations was based upon the initial Conditions of Approval for the Project.
F. On November 8, 2012, the Planning Commission of the City approved
Entitlement Plan Amendment 12-009 which, among other things, deleted the requirement for the
tiered property owners associations and recommended approval of a Pacific City Master
Declaration of Covenants, Conditions and Restrictions (the "Project CC&Rs") which, among
801291.02/SD
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other things, created reciprocal easements among the Residential Property and the Commercial
Property, incorporated by reference the terms and conditions of the Prior Agreement, as
subsequently amended and modified by the City, and allocated among the Residential Property
and the Commercial Property the development conditions and responsibilities established by
the City in connection with the Project approvals. The Project CC&Rs were recorded
November 20, 2012 as Instrument No. 2012000716927 of the Official Records of Orange
County, California.
G. The Project CC&Rs incorporate a number of the terms and provisions of the Prior
Agreement.
H. The parties desire to fully amend and restate the Prior Agreement to reflect the
elimination of the requirement for the tiered property owners associations and the recordation of
the Project CC&Rs.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto fully amend and restate the Prior Agreement as
follows:
1. Grant of License. Subject to the provisions of this Agreement, City grants to
21002 HB and PC Group Retail, LLC, their successors and assigns (individually an "Owner"
and collectively the "Owners"), a non-exclusive, revocable license (the "License') to perform all
maintenance, repair and replacement of Common Drainage Facilities and Common
Maintenance Areas (both as defined in the Project CC&Rs) which are owned by the City or
within the City's public right of way.
2. Term. The term of this License shall be perpetual, provided that City may
terminate this License upon thirty (30) days prior written notice to the Owners.
3. Initial Construction of Improvements. Each Owner shall perform, at its sole cost
and expense, all initial construction of Common Drainage Facilities and Common Maintenance
Areas on the portion of the Property owned by such Owner in accordance with plans submitted
by such Owner to the City, which plans shall be subject to prior written approval by the City, and
pursuant to the Project CC&Rs.
4. Maintenance and Repair of Improvements. During the term of this License, each
Owner shall keep and maintain all Common Drainage Facilities and Common Maintenance
Areas located on the portion of the Property owned by such Owner in good condition and repair
and shall repair and replace such Common Drainage Facilities and Common Maintenance
Areas as described in the Project CC&Rs (collectively, "Maintenance Responsibilities").
During the term of this License, the Owners shall keep and maintain all Common
Drainage Facilities and Common Maintenance Areas which are owned by the City or within the
City's public right of way in good condition and repair and shall repair and replace the same as
provided in the Project CC&Rs.
5. Mechanic's Liens. The Owners agree to use commercially reasonable efforts not
to suffer any mechanic's lien(s) to be filed against the public right of way by reason of any work,
labor, services or material performed at or furnished to the public right of way, the City or to any
portion of the Property. In the event that any mechanic's lien is filed as a result of any labor,
services or materials performed at or furnished by or for the benefit of an Owner, such Owner
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shall cause any such lien to be released or bonded or affirmatively insured against within sixty
(60) days after the date of filing of such mechanic's lien. Nothing in this Agreement shall be
construed as a consent on the part of the City to subject the City's estate in any portion of the
public right of way to any mechanic's lien or liability under the mechanic's lien laws of the State
of California.
6. Assignment of License. This License is appurtenant to the Property and may not
be separately assigned apart from the Property or the interest therein. This license shall run in
favor of each Owner of all or any portion of the Property during the term of such Owner's
ownership. Upon any sale or transfer of all or any portion of the Property, this License shall
automatically be assigned to and run in favor of the transferee and the transferor shall, effective
upon the date of such transfer, be released from any and all duties, responsibilities, obligations
or liabilities hereunder. Notwithstanding the foregoing, any assignment of this license to one or
more residential homeowners associations formed to govern all or a portion of the Residential
Property shall be deemed a valid assignment. 21002 HB or its successors and assigns shall
give notice in writing of each such assignment to the City.
7. City Requirements. Each Owner, or anyone performing work on behalf of an
Owner, shall be properly licensed by City for any work performed on the Common Drainage
Facilities or the Common Maintenance Areas owned by the City or within the City's public right
of way. Furthermore, each Owner or anyone performing work on behalf of an Owner, shall
acquire the proper encroachment permit and comply with all other City requirements prior to
performing any work in the public right of way.
8. City Right to Inspect. City shall have the right, on at least a quarterly basis, to
inspect the Common Drainage Facilities and Common Maintenance Areas within the public right
of way. City and Owner shall negotiate in good faith to come to a mutual agreement as to the
time and date for any such inspection.
9. Workers' Compensation Insurance. Pursuant to California Labor Code
Section 1861, 21002 HB and PC Group Retail, LLC and their successors or assigns,
acknowledge awareness of California Labor Code Section 3700, et seq., which requires every
employer to be insured against liability for workers compensation. Each Owner covenants that
it will comply with such provisions prior to commencing performance of any work pursuant to
this License. Each Owner shall maintain workers' compensation insurance as required by
statute, including employers' liability coverage with limits not less than One Million Dollars
($1,000,000) bodily injury by accident, each occurrence, One Million Dollars ($1,000,000) bodily
injury by disease, each employee, and One Million Dollars ($1,000,000) bodily injury by disease,
policy limits, at all times incident hereto, in forms underwritten by insurance companies
satisfactory to City. Each Owner shall require all subcontractors to provide such workers'
compensation insurance for all of the subcontractors' employees. Each Owner shall furnish to
City a certificate of waiver of subrogation under the terms of the workers' compensation
insurance and shall similarly require all subcontractors to waive subrogation, provided that such
waiver is reasonably available.
10. Other Insurance. In addition to workers' compensation insurance in Section 8
above and each Owner's covenant to indemnify City in Section 11 below, 21002 HB and PC
Group Retail, LLC, their successors and assigns, shall obtain and furnish to City a policy of
commercial general liability insurance and commercial automobile liability insurance, covering
all activities to be undertaken by them concerning the Common Drainage Facilities and
Common Maintenance Areas located within a public right of way affected by this License. Said
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policy shall pay on behalf of them, their officers, agents and employees, while acting within the
scope of their duties, against any and all claims of liability arising out of or in connection with all
activities to be undertaken by them concerning Common Drainage Facilities and Common
Maintenance Areas located within the public right of way, and shall provide coverage in not less
than the following amount: combined single limit bodily injury and property damage, including
products/completed operations liability and blanket contractual liability, of One Million Dollars
($1,000,000) per occurrence. If coverage is provided under a form which includes a designated
general aggregate limit, the aggregate limit must be no less than One Million Dollars
($1,000,000). Said policy shall name City, its officers, and employees as additional insureds,
and shall specifically provide that any other insurance or self-insurance which may be applicable
to all activities to be undertaken by an Owner concerning the Maintenance Areas affected by
this License shall be deemed excess coverage and that each Owner's insurance shall be
primary. Under no circumstances shall said above mentioned insurance contain a self-insured
retention. or "deductible" or any similar form of limitation on the required coverage in excess of
Twenty Five Thousand Dollars ($25,000.00).
11. Certificates of Insurance: Additional Insured Endorsements. Prior to
commencing performance of the Maintenance Responsibilities, an Owner shall furnish to City
certificates of insurance subject to approval of the City Attorney evidencing the foregoing
insurance coverage as required by this Agreement; said certificates shall:
(a) provide the name and policy number of each carrier and policy; and
(b) shall state that the policy is currently in force; and
(c) shall promise to provide that such policies will not be canceled or
modified without thirty ( 30) days prior written notice to City.
Each Owner shall maintain the insurance coverage contemplated in Sections 8 and 9 in
force until this License is terminated.
12. Indemnification.
(a) Indemnity — License. Each Owner shall indemnify, defend and hold City,
its officers, directors, shareholders, employees, agents, successors and assigns (hereinafter
collectively called "Indemnified Parties') harmless from all liabilities, penalties, costs,
damages, expenses, causes of action, claims or judgments (including without limitation
reasonable attorneys' fees) (collectively, "Indemnified Claims'), resulting from (i) injury or the
death of any person (including without limitation any Indemnified Party) or physical damage to
property, real or personal, of any kind wherever located and by whomever owned (including,
without limitation, property owned by an Indemnified Party), which injury, death or physical
damage arises out of or is connected with the use or occupancy by the indemnifying Owner (or
its officers, employees, agents, contractors, licensees, or invitees) of any of the Maintenance
Areas on the portion of the Property owned by the indemnifying Owner under the authority of
the. License, except to the extent that such Indemnified Claims are caused by the negligence or
willful wrongful acts or omissions of any Indemnified Party, and (ii) the use, generation,
processing, production, packaging, treatment, storage, emission, discharge or disposal of
Hazardous Materials (as that term is defined herein below) on or about the Maintenance Areas
by an Owner, its agents, employees, contractors, invitees or licensees in connection with the
exercise of such Owner's rights under the License. For purposes of this Section 12, the term
"Hazardous Materials" shall mean any substance, material or waste that. because of its
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quantity, concentration, or physical or chemical characteristics, poses a significant present or
potential hazard to human health and safety or to the environment, including, but not limited to
petroleum, petroleum-based products, natural gas, or any substance, material, or waste that is
or shall be listed, regulated or defined by federal, state or local statute, regulation, rule,
ordinance or other governmental requirement to be hazardous, acutely hazardous, extremely
hazardous, toxic, radioactive, biohazardous, infectious, or otherwise dangerous.
(b) Notice. City agrees to give prompt notice to an Owner with respect to any
Indemnified Claims initiated or threatened against City, at the address for notices set forth
herein. The indemnifying Owner shall, at its option but subject to the reasonable consent and
approval of City, be entitled to control the defense, compromise or settlement of any such
matter through counsel of its own choice; provided, however, that in all cases City shalt be
entitled to participate in such defense, compromise, or settlement at its own expense.
13. Litigation Expenses.
(a) General. If either party hereto brings an action or proceeding (including
any cross-complaint, counterclaim, or third-party claim) against another party by reason of a
default, or otherwise arising out of this Agreement, the prevailing party in such action or
proceeding shall NOT be entitled to its costs and expenses of suit, including but not limited to
reasonable attorneys' fees, which shall be payable whether or not such action is prosecuted to
judgment.
(b) Alternative Dispute Resolution. City and an Owner, by mutual
agreement, may, but are not required to, submit any factual or other (to the extent City is not
prohibited by law or otherwise from doing so) dispute arising under this Agreement to non-
binding arbitration, mediation, judicial reference or other alternate dispute resolution mechanism
("ADR') of non-judicial dispute resolution. The party requesting ADR shall give written notice of
its request, specifying the requested ADR procedure, to the other parties, who shall notify the
requesting parties of its agreement or refusal to proceed within a reasonable time after receipt
of the requesting notice. If the parties agree to proceed, they shall select a mutually acceptable
individual, with qualifications appropriate to the subject matter of the dispute, to conduct the
designated ADR, or, if the parties cannot agree on such individual, they shall submit the dispute
for the applicable ADR to a commercial ADR service. In all events, the proceedings shall be
conducted only in a manner acceptable to both parties. The parties may enter into operating
memoranda from time to time to establish procedures for the initiation and conduct of such ADR
mechanisms.
14. Time. Time is of the essence of this Agreement and each and every part hereof.
15. Covenants. Each of the covenants set forth in this Agreement (i) shall run with
the land; (ii) shall be binding upon, and shall inure to the benefit of, any person or entity having
or acquiring any interest in any portion of the Property benefited or burdened thereby, during the
period of such person's or entity's ownership, and all of their respective successive owners and
assigns; and (iii) shall be binding upon, and shall inure to the benefit of, the Property benefited
or burdened thereby and every portion thereof and interest therein. The License granted by this
Agreement is subject to all matters of record as of the effective date of this Agreement
16. Amendment. This Agreement may be amended or otherwise modified only in
writing signed and acknowledged by the Owners.
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17. Delegation of Authority. City hereby delegates to City Manager or his or her
designee the authority to implement all provisions of this Agreement.
18. City's Right to Enforce. Notwithstanding the provisions of Section 13 herein, the
Owners acknowledge and agree that the City has the right and standing, but not the obligation,
to enforce any of the terms of this Agreement by any appropriate legal and/or equitable means
and shall be entitled to reimbursement for any costs incurred in enforcing this Agreement. The
Owners shall provide City with, and at all times keep current, contact information for the Owners
and any property manager acting on their behalf.
19. Successors and Assigns. Subject to Sections 5 and 14 above, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns (except as otherwise specifically provided in Section 17 below),
including without limitation all grantees and other successors-in-interest of City and 21002 HB
and PC Group Retail in any portion of the Maintenance Areas. Subject to Sections 5 and 14
above, 21002 HB and PC Group Retail shall provide prior notice of any assignment of their
rights and obligations hereunder and any such assignment shall either (a) include the insurance
provisions hereunder or(b) shall include insurance provisions approved by City.
20. Exclusive Benefit of Parties. The provisions of this Agreement are for the
exclusive benefit of City and 21002 HB and PC Group Retail, LLC and their successors and
assigns, subject to the provisions hereof, and not for the benefit of nor give rise to any claim or
cause of action by any other person.
21. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
22. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be entitled to be the original and all of which shall constitute one and the
same agreement.
23. References: Titles. Wherever in this Agreement the context requires, reference
to the singular shall be deemed to include the plural. Titles of sections and paragraphs are for
convenience only and neither limit nor amplify the provisions of this Agreement.
24. Notice. Any notice given under this Agreement shall be in writing and given by
delivering the notice in person, by commercial courier or by sending it by registered or certified
mail, or Express Mail, return receipt requested, with postage prepaid, to the mailing address
listed below or any other address notice of which is given. For the convenience of the parties,
copies of notices may also be given by telefacsimile, to the telephone number listed below or
such other numbers as may be provided from time to time.
Owner: The address of such person as shown on the records of the Orange
County Tax Collector.
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For City: Director of Public Works
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Telefacsimile: (714) 536-1573
City Manager
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Telefacsimile: (714) 536-1573
Any mailing address or telefacsimile number may be changed at any time by giving
written notice of such change in the manner provided above at least ten (10) days prior to the
effective date of the change. All notices under this Agreement shall be deemed given, received,
made or communicated on the date personal receipt actually occurs or, if mailed, on the delivery
date or attempted delivery date shown on the return receipt. A person may not give official or
binding notice by telefacsimile. The effective time of a notice shall not be affected by the
receipt, prior to receipt of the original, or a telefacsimile copy of the notice.
25. Severability. If any provision of this Agreement shall to any extent be invalid or
unenforceable, the remainder of this Agreement (or the application of such provisions to
persons or circumstances other than those in respect of which it is invalid or unenforceable)
shall not be affected thereby, and each provision of this Agreement, unless specifically
conditioned upon such invalid or unenforceable provision, shall be valid and enforceable to the
fullest extent permitted by law.
26. Entire Agreement. This Agreement, together with any attachments hereto or
inclusions by reference, constitute the entire agreement between the parties on the subject
matter hereof, and this Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements and understandings, if any, between the parties hereto with respect
to the easements which are the subject matter of this Agreement.
27. Survival. All representations, warranties, waivers, and indemnities given or made
hereunder shall survive termination of this Agreement.
(Signature page follows.)
801291.02/SD
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto on
2013.
21002 HB, LLC,
a Delaware limited liability company
By:
Name: CHff'r eva LV,K
T
Title:_ ce ?965*
PC GROUP RETAIL, LLC, a California
limited liability company
By:
COUNTERPART Name:
Title:
CITY OF HUNTINGTON BEACH,
a municipal corporation of the State of California
A�"-—
Mva�\n.ew A. Mayor
k{acpet-
S c� L. ity le
Flu��r
PROVED AS TO FORM:
City Attorney �'hv_ 1�_-3._�'�
APPROVED AS TO FORM:
C Director ofPutrc Works
REVIE A APPROVED:
City Manager
801291.02/SD
132227-00009/3-11-13/lab/lab "$"
IN ITNESS WHEREOF, this Agreement has been executed by the parties hereto on
2013.
21002 HB, LLC,
a Delaware limited liability company
COUNTERPART By:
Name:
Title:
PC GROUP RET , LLC, Californi
limited liability an
By:
Name:
Title: �L
CITY OF HUNTINGTON BEACH,
a municipal corporation of the State of California
Mayor
City Clerk
APPROVED AS TO FORM:
City Attorne A•-1)_�._��
APPROVED AS TO FORM:
Director of Public Works
REVIE D APPROVED:
IV/City-Manager
801291.02/SD
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STATE OF FLORIDA )
COUNTY OF Nb�i�r► I- DA'DG )
,On ��I�GwI b�� z2 , 2013, before me,
1 41e- ►r' , a Notary Public, personally appeared
YO✓CUkKs kAbu , who proved to me on the basis of satisfactory evidence to be the
personal whose name(O(Ware subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/I�r/their authorized capacitykieo and that by
his/W/their signature;sj on the instrument the personker,, or the entity upon behalf of which the
person(Wacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Florida that the
foregoing paragraph is true and correct.
WITNESS my hand and Official seal.
( a7k
K—otary,Public
ERICA V.CARTER
NOTARY PUBLIC
(Seal) STATE OF FLORIDA
Coma+#OD0933162
Fxpiros 1/29/2014
801291.02/SD
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STATE OF CALIFORNIA )
)COUNTY OF Z�A
A f &&r�-
On ►U jo ;),g- , 2013, before me,
3 ,p(ta, S, Pao' , a Notary Public, personally appeared
SCci r1-ur� , who proved to me on the basis of satisfactory evidence to be the
person(pj whose name(s) is/armsubscribed to the within instrument and acknowledged to me
that he/sheAhey executed the same in his/hedtheir authorized capacity(), and that by
his/h€dtheir signature(s) on the instrument the person(4, or the entity upon behalf of which the
person) acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and Official seal.
BARBARA S. BOTTS
Commission#-
q Notary Public-CaliforMaldoml �a lid
Santa Barbara County Notary Public
Comm.E s Jun 19 2 15
(Seal)
801291.02/SD
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STATE OF CALIFORNIA )
�y )
COUNTY OF
On"neetes zw-._ , 2Q13, before me,
15 �h i S , a Notary Public, personally appeared
M C� . oe , who proved to me on the basis of satisfactory evidence to be the
person(s-whose nam (s) is/ate subscribed to the within instrument and acknowledged to me
that he44e/A0,eay executed the same in his/4eMbeir authorized capacity(aes), and that by
his/her i -signature(4on the instrument the person(g), or the entity upon behalf of which the
person(e) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and Official seal.
ROBIN ESTANISLAU �"`�"`� �"`"'�•G�'� -/
COMMISSION#2017380
Z '"` Notary public-California
Z Notary Public
--a OkANOr COUNTY
M1 KpuesApr 1 2017
(Seal)
801291.02/SD
132227-00009/3-11-13/lab/lab -��-
STATE OF CALIFORNIA )
COUNTY OF t )
O , 2013, before me,
.�i a.�— , a Notary Public, personally appeared
, who proved to me on the basis of satisfactory evidence to be the
person(s)-whose n4meW is/axe subscribed to the within instrument and acknowledged to me
that h4a/she/fir executed the same in hWher/their authorized capacity(aes), and that by
4;Wher/thei-signature(e) on the instrument the person(.s.), or the entity upon behalf of which the
person(&) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and Official seal.
ROBIN ESTANISLAU
COMMISSION 0 2017380
U Notary PLIWIC-Califomia Notary Public
UHANGE COUNTY
My Comm Expires Apr 1.2017 L
(Seal)
801291.02/SD
132227-00009/3-11-13/lab/lab -��-
s
EXHIBIT "A"
MAINTENANCE LICENSE AGREEMENT
PACIFIC CITY - HUNTINGTON BEACH
z NOTE THIS DEPICTION IS FOR ILLUSTRATIVE PURPOSES ONLY
z THE AS-BUILT CONDITIONS WILL PREVAIL
N 7 W ENHANCED
Q PAVEMENT
U) TYPICAL ,ATLANTA AVENUE
STREET
TYPICIAL QoQ�� TRACT NO 16338
PEDESTRIAN
1ST STREET �� �, EASEMENT
AL N
TREATMENTESYOSTEM C. CORRIDORS
FIRST FLUSH MEDIAN
ISLANDS
WATER TREATMENT TYPICAL T �u
CieCONTROL SYSTEM
VILLAGE cn
GREEN
PARK
Z
PARKWAYS
c, V
ENHANCED p �' Z
TAVING
YPICAL �C/F/c a� PAVING ENHANCED �
r1A TYPICAL =
pFo ,9� ��
Fps FSTRi F
LEGEND
o ,
MAINTENANCE C/iC/ RS
AREAS INCUDE C, STREET
-ENHANCED PAVING CO LIGHTING 3
TYPICAL
-VILLAGE GREEN PARK '9ST
-014 ACRE POCKET PARK /y,A FIRST FLUSH
-EDISON OWNED STREET LIGHTING `vy WATER TREATMENT
-PEDESTRIAN EASEMENT CORRIDORS CONTROL SYSTEM
-SIDEWALK & PARKWAY LANDSCAPING MEDIAN
-MEDIANS AND LANDSCAPING WITHIN MEDIANS ISLANDS
-STREET FURNITURE WITHIN RIGHT OF WAY & EASEMENT CORRIDORS TYPICAL
-AWNINGS & RAILINGS WITHIN RIGHT OF WAY & EASEMENT CORRIDORS
-FIRST FLUSH WATER RUNOFF TREATMENT SYSTEM
-1ST STREET REGIONAL TREATMENT SYSTEM
NOTE STREET LIGHTING WITHIN PACIFIC VIEW AVENUE AND ALONG THE PROJECT SIDE OF
1ST STREET ATLANTA AVENUE AND HUNTINGTON STREET IS INCLUDED IN THE MAINTENANCE
NOTE MEDIANS WITHIN PACIFIC COAST HIGHWAY ARE NOT INCLUDED IN THE MAINTENANCE
DATE AUGUST 15 2007
ATTAC H M E N T #3
RECORDING REQUESTED BY Recorded in official Records,Orange Couity
FIRST AMERICAN TITLE CO. Hugh Nguyen,Clerk-Recorder 91II 1111111111111111111111111111111111111136.00NAT►ONAL COMMERCIAL SERVICES IS11II IIIIJ
* $ R 0 0 0 6 4 0 2 9 8 3 $
Recording Requested By and 20130007044371:49 pry 12013
When Recorded, Return To: 19 405 Al2 F13 10
0.0o 0.00 0.00 0.00 27.00 0.00 0.00 0.00
City Clerk
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
(Space above this line for Recorder's use only)
AMENDED AND RESTATED
AGREEMENT REGARDING CITY REQUIREMENTS
THIS AMENDED AND RESTATED AGREEMENT REGARDING CITY
REQUIREMENTS ("Agreement") is made by and between 21002 HB, LLC, a Delaware limited
liability company ("21002 HB"), PC Group Retail, LLC, a California limited liability company ("PC
Group Retail") and the City of Huntington Beach, a municipal corporation of the State of
California ("City") with reference to the following facts:
A. 21002 HB is the owner of that certain real property (the "Residential Property")
situated in the City of Huntington Beach, County of Orange, State of California, described as Lot
1 of Tract No. 16338, as shown on a Subdivision Map recorded in Book 893, Pages 7 through
12, inclusive, of Miscellaneous Maps, in the Office of the County Recorder for the County of
Orange, State of California (the "Tract Map").
B. PC Group Retail is the owner of that certain real property (the "Commercial
Property") described as Lots 2 and 3 of the Tract Map.
C. The Residential Property and the Commercial Property (collectively the
"Property") are the subject of a Master Plan for the Pacific City Mixed Use Project, which
contemplates residential and retail improvements and a hotel (the "Project").
D. City and the predecessor in interest to 21002 HB and PC Group Retail, Makallon
Atlanta Huntington Beach, LLC, a Delaware limited liability company entered into an Agreement
Regarding City Requirements dated as of August 20, 2007, and recorded October 15, 2007, as
Instrument No. 2007000628743 of the Official Records of the Orange County Recorder (the
"Prior Agreement").
E. The Prior Agreement contemplated that Makallon would record separate
declarations of covenants, conditions, restrictions and reservations of easements against the
Residential Property and the Commercial Property and form a property owners association for
the Commercial Property and a residential owners association for the Residential Property and
that which would, come in turn, be members of a master association. The use of tiered property
owners associations was based upon the initial Conditions of Approval for the Project.
799099.02/sD
132227-00009/3-9-13/lab/lab
F. On November 8, 2012, the Planning Commission of the City approved
Entitlement Plan Amendment 12-009 which, among other things, deleted the requirement for the
tiered property owners association and recommended approval of a Pacific City Master
Declaration of Covenants, Conditions and Restrictions (the "Project CC&Rs") which, among
other things, created reciprocal easements among the Residential Property and the Commercial
Property, incorporated by reference the terms and conditions of the Prior Agreement, as
subsequently amended and modified by the City, and allocated among the Residential Property
and the Commercial Property the development conditions and responsibilities established by
the City in connection with the Project approvals. The Project CC&Rs were recorded
November 20, 2012 as Instrument No. 2012000716927 of the Official Records of Orange
County, California.
G. The parties desire to fully amend and restate the Prior Agreement to reflect (i) the
elimination of the requirement for the tiered property owners associations and (ii) the
recordation of the Project CC&Rs.
H. City desires to bind 21002 HB and PC Group Retail to the conditions, restrictions
and guidelines found in the (i) "City Council Approved Findings and Conditions of Approval for
Pacific City Project (Tentative Tract Map No. 16338/ Conditional Use Permit No. 02-20/ Special
Permit No. 02-04/ Coastal Development Permit No. 02-12/ Master Plan— Pacific City Mixed Use
Project)" dated June 14, 2004, (ii) "Mitigation Monitoring Program", (iii) "Development and Use
Requirements" dated June 9, 2004, (iv) Entitlement Plan Amendment No. 2008-001 dated
March 25, 2008, (v) Entitlement Plan Amendment No. 12-005 and Development Agreement No.
12-001, dated September 17, 2012, (vi) Entitlement Plan Amendment No. 12-007 dated October
23, 2012 and (vii) Entitlement Plan Amendment No. 12-009 dated November 8, 2012
(collectively, the "City Requirements").
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the parties hereto fully amend and restate the Prior Agreement as
follows:
1. City Requirements. The record owners of the Residential Property and the
Commercial Property, or any portion thereof, shall be subject to and bound by the obligations
contained in (i) the City Requirements, (ii) the Project CC&Rs, (iii) that certain Amended and
Restated License and Maintenance Agreement recorded on 0a exniN,-r 21b , 2013 as
Instrument No. um0007a3 and (iv) that certain Amended and Restated Special Utility
Easement Agreement recorded on pemmyer 23 , 2013 as Instrument No. 2ottDoo-ro3oR-r,
both in the Official Records of Orange County, California, each as they relate to the portion of
the Property owned by such person. City Requirements relating to affordable housing
covenants and agreements shall be enforceable only against the Residential Property. No
owner of any portion of the Property shall be liable or responsible for the failure by an owner of
another portion of the Property to comply with the terms of this Agreement except as otherwise
set forth in the CC&Rs.
2. Enforcement. City may enforce all provisions of this Agreement against any
defaulting owner in the manner provided in the City Requirements and the Project CC&Rs.
3. Time. Time is of the essence of this Agreement and each and every part hereof.
4. Covenants. Each of the covenants set forth in this Agreement (i) shall run with
the land; (ii) shall be binding upon, and shall inure to the benefit of, any person or entity having
799089.02/SD
132227-00009/3-9-13/lab/lab -2-
or acquiring any interest in any portion of the Property benefited or burdened thereby, during the
period of such person's or entity's ownership, and all of their respective successive owners and
assigns; and (iii) shall be binding upon, and shall inure to the benefit of, the Property benefited
or burdened thereby and every portion thereof and interest therein.
5. Amendment. This Agreement may be amended or otherwise modified only in
writing signed and acknowledged by the parties hereto and their successors and assigns, or the
successors and assigns of each.
6. Successors and Assigns. Subject to Section 1 above, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns.
7. Exclusive Benefit of Parties. The provisions of this Agreement are for the
exclusive benefit of the parties hereto and their successors and assigns, subject to the
provisions hereof, and not for the benefit of nor give rise to any claim or cause of action by any
other person.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
9. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be entitled to be the original and all of which shall constitute one and the
same agreement.
10. References: Titles. Wherever in this Agreement the context requires, reference
to the singular shall be deemed to include the plural. Titles of sections and paragraphs are for
convenience only and neither limit nor amplify the provisions of this Agreement.
11. Notice. Any notice given under this Agreement shall be in writing and given by
delivering the notice in person, by commercial courier or by sending it by registered or certified
mail, or Express Mail, return receipt requested, with postage prepaid, to the mailing address
listed below or any other address notice of which is given. For the convenience of the parties,
copies of notices may also be given by telefacsimile, to the telephone number listed below or
such other numbers as may be provided from time to time.
For the Owner of the Residential Property, the Commercial Property or any
portion thereof:
The address for such person as shown on the records of the Orange County Tax
Collector.
For City:
City Manager: City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Telefacsimile: (714) 536-5233
799089.02/SD
132227-00009/3-9-13/lab/lab -3-
Director of Planning: City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Telefacsimile: (714) 536-5233
Any mailing address or telefacsimile number may be changed at any time by
giving written notice of such change in the manner provided above at least ten (10) days prior to
the effective date of the change. All notices under this Agreement shall be deemed given,
received, made or communicated on the date personal receipt actually occurs or, if mailed, on
the delivery date or attempted delivery date shown on the return receipt. A person may not give
official or binding notice by telefacsimile. The effective time of a notice shall not be affected by
the receipt, prior to receipt of the original, or a telefacsimile copy of the notice.
12. Severability. If any provision of this Agreement shall to any extent be invalid or
unenforceable, the remainder of this Agreement (or the application of such provisions to
persons or circumstances other than those in respect of which it is invalid or unenforceable)
shall not be affected thereby, and each provision of this Agreement, unless specifically
conditioned upon such invalid or unenforceable provision, shall be valid and enforceable to the
fullest extent permitted by law.
13. Entire Agreement. This Agreement, together with any attachments hereto or
inclusions by reference, constitute the entire agreement between the parties on the subject
matter hereof, and this Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements and understandings, if any, between the parties hereto with respect
to the easements which are the subject matter of this Agreement.
14. Litigation Expenses. If either party hereto brings an action or proceeding
(including any cross-complaint, counterclaim, or third-party claim) against the other party by
reason of a default, or otherwise arising out of this Agreement, the prevailing party in such
action or proceeding shall NOT be entitled to its costs and expenses of suit, including but not
limited to reasonable attorneys' fees, which shall be payable whether or not such action is
prosecuted to judgment.
15. Survival. All representations, warranties, waivers, and indemnities given or made
hereunder shall survive termination of this Agreement.
(Signature page follows.)
799089.02/SD
132227-00009/3-9-13/lab/lab -4-
IN WI 'NESS WHEREOF, this Agreement has been executed by the parties hereto on
( 2013.
21002 HB, LLC,
a Delawa Ji liability company
By:
Name: 014cfsTewcup-4
Title: �►« ���s.
PC GROUP RETAIL, LLC,
a California limited liability company
By:
Name:
Title:
CITY OF HUNTINGTON BEACH,
a municipal corporation of the State of California
t'tio,��chew 4�.Haa-Ter Mayor
"�x yL.",
-'Dean Ft%:ynr City Clerk
(j
PROVED AS TO FORM:
C
City At ney
APPROVED A O M:
Director of Planning
REVIEW '74PPROVED:
City Manager
799089.02/SD
132227-00009/3-9-13/lab/lab _5_
IN YVITNESS WHEREOF, this Agreement has been executed by the parties hereto on
2013.
21002 HB, LLC,
a Delaware limited liability company
By:
Name:
Title:
PC GROUP RETAI LC,
a California limi p6liabili n
By:
Name: arm
Title:
CITY OF HUNTINGTON BEACH,
a municipal corporation of the State of California
Mayor
City Clerk
,APPROVED AS TO FORM- ,
City Attorn4yO
APPROVED AS O FOkM:
"Director of Planning
REVIEWED APPROVED:
V/ City Manager
799089.02/SD
132227-00009/3-9-13/lab/lab -5-
STATE OF FLORIDA )
COUNTY OF �K�`
On 6r , 2013, beforg�,me, Eri M V Ca.r�r ,
a Notary Public, personally appeared S61ow�+'1 NVI,5'1f tj +AT, who proved to me on the basis
of satisfactory evidence to be the personko whose namek I(Yare subscribed to the within
instrument and acknowledged to me that he/,gim/they executed the same in his/b[their
authorized capacity4ies , and that by his/her/their signature rron the instrument the person*,,
or the entity upon behalf of which the personW acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Florida that the
foregoing paragraph is true and correct.
WITNESS my hand and Official seal.
l7V `
Notary Kublic
ERICA V.CARTER
(VOTARY PUBLIC
STATE OF FLORIDA
(Seal) Comm.#DD0933162
T'yr,,4`afs 1/29/2014
799089.02/SD
132227-00009/3-9-13/lab/lab -6-
STATE OF CALIFORNIA
� / )
COUNTY OF,5M-16
On !V 0 d '9a-- , 2013, before
a Notary Public, personally appeared who proved to me on the basis
of satisfactory evidence to be the person(s) whose name) is/ard subscribed to the within
instrument and acknowledged to me that he/sheAhey- executed the same in his/hedA#eir
authorized capacity(ieg), and that by his/her/heir-signature(d) on the instrument the person(A),
or the entity upon behalf of which the person) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and Official seal.
BARBARA S. BOTTS �1
Commission#E 1937848
$ Notary Public-CaliforniaZ 4b �G�.11 JQ�✓✓� S Ic>y
Santa Barbara County
My Comm.E gyres Jun 19,2015 Notary Public
(Seal)
799089.02/SD
132227-00009/3-9-13/lab/lab _6_
STATE OF CALIFORNIA )
COUNTY OF )
On 'ee-o-en `(o , 2013, be re� me, �h ✓A��Sla
a Notary Public, personally appeared� Arma who proved to me on the basis
of satisfactory evidence to be the person(4 whose name is/a;Fe-subscribed to the within
instrument and acknowledged to me that he/eheft" executed the same in hisAie#their
authorized capacity(ies), and that by his/herftl-tear signature(*on the instrument the person(*,
or the entity upon behalf of which the person*acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and Official seal.
ROBIN ES IANISI AU
i COMMISSION#2017380 Z Notary Public
U Notary Public-Caldomia O
ORANGE COUNTY
My Comm Expires Apr 1.2017
(Seal)
799089.02/SD
132227-00009/3-9-13/lab/lab -�-
STATE OF CALIFORNIA )
COUNTY OF )
On i��c �x.� ��, 2013 before me,
a Notary Public, personally appeared e-go; 4-• F , who proved to me on the basis
of satisfactory evidence to be the person(s) whose me{.s.) is/eA—, subscribed to the within
instrument and acknowledged to me that hefshe/t# er executed the same in •I-is/her/theif-
authorized capacity0es), and that by Ws/her/fifer signature(4on the instrument the person(*,
or the entity upon behalf of which the person((+acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and Official seal.
ROBIN ESTANISLAU
COMMISSION#2017380 i Notary)2"6blic
2 '• Notary Public-California
ORANGE COUNTY
My Comm E.zpwesApr 1.2017
(Seal)
799089.02/SD
132227-00009/3-9-13/lab/lab �8-
ATTACHMENT #4
Recorded in Official Records,Orange CountyF_C'I.;iClii'?T `REQUESTED BY Hugh Nguyen,Clerk-Recorder
:,;U cRI CAN TITLE CO. I IIII IISIIe IIIIIII�II I III Jill 210
NATIONAL,COMMERCIAL SERVICES
PC",-5ga025-S C * $ R 0 0 0 6 4 0 2 9 8 4 $
RECORDING REQUESTED BY 20130007044381:49 pm 1212N13
AND WHEN RECORDED MAIL TO: 19405A17 F13 5
0.00 0.00 0.00 0.0012.00 0.00 0.00 0.00
City Clerk
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
(Space Above For Recorder's Use)
FIRST AMENDMENT TO AGREEMENT REGARDING VILLAGE GREEN PARK
THIS FIRST AMENDMENT TO AGREEMENT REGARDING VILLAGE GREEN PARK
("Amendment") is made and entered into as of �Q�• /6 2013' by and between
21002 HB, LLC, a Delaware limited liability company ("Declarant") and the CITY OF
HUNTINGTON BEACH, municipal corporation of the State of California ("City"), with reference
to the following facts.
RECITALS
A. Declarant (as successor in interest to Makallon Atlanta Huntington Beach, LLC, a
Delaware limited liability company) and City previously entered .into that certain Agreement
Regarding Village Green Park recorded in the Official Records of Orange County on
September 28, 2007 as Document No. 2007000588432 ("Agreement") relating to the
development of certain real property described as Lot 1 of Tract No. 16338, as shown on a
Subdivision Map recorded in Book 893, Pages 7 through 12, inclusive, of Miscellaneous Maps,
in the Office of the County Recorder for the County of Orange, State of California ("Property").
B. The Agreement contemplated that Makallon would record various declarations of
covenants, conditions, restrictions and reservations of easements against the Property and form
a property owners association for the Property which would, in turn, be members of a master
association. The use of tiered property owners associations was based upon the initial
Conditions of Approval for the Project.
C. On November 8, 2012, the Planning Commission of the City approved
Entitlement Plan Amendment 12-009 which, among other things, deleted the requirement for
tiered property owners associations and recommended approval of a Pacific City Master
Declaration of Covenants, Conditions and Restrictions ("Project CC&Rs") which incorporated by
reference the terms and conditions of the Agreement, as subsequently amended and modified
by the City. The Project CC&Rs were recorded November 20, 2012 as Instrument No.
2012000716927 of the Official Records of Orange County, California.
D. The parties desire to amend the Agreement to reflect the elimination of the
requirement for the tiered property owners associations.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
794363.04/S D
132227-00009/12-4-13/flab 1
1. Definitions. Capitalized terms not otherwise defined in this Amendment shall
have the meanings therefor set forth in the Agreement.
2. Master Declaration. In Recital A of the Agreement, the paragraph located
beneath the legal description of the Property is hereby deleted in its entirety and replaced with
the following:
The Property is subject to that certain Pacific City Master Declaration of
Covenants, Conditions and Restrictions recorded in the Official Records of
Orange County on November 20, 2012, as Instrument No. 2012000716927.
3. Village Green Park. Section 1 of the Agreement is hereby deleted in its entirety
and replaced with the following:
Declarant hereby encumbers Village Green Park with a perpetual right of
public access, ingress and egress and covenants that Village Green Park shall
not be converted to private use. The foregoing grant is further governed by and
subject to any limitations contained in the Project CC&Rs which includes, but is
not limited to, provisions (a) for maintenance of easements for public access and
use over Village Green Park, and (b) that prohibit the Owners (as defined in the
Project CC&Rs) from constructing or permitting the construction of any fences,
barricades, or other improvements that would restrict public access and use of
Village Green Park except during limited periods for construction of
improvements on portions of Village Green Park or such other times as public
access and use must be reasonably restricted over portions of Village Green
Park to address public safety concerns.
4. Full Force and Effect. Except as expressly modified herein, the Agreement shall
remain unmodified and in full force and effect.
5. Counterparts. This Amendment may be executed in counterparts. All executed
counterparts shall constitute one agreement, and each counterpart shall be deemed an original.
Declarant and City agree that the delivery of an executed copy of this Amendment by facsimile
or electronic mail shall be legal and binding and shall have the same full force and effect as if an
original executed copy of this Amendment had been delivered.
IN WITNESS WHEREOF the parties have caused this Amendment to be executed as of
the day and year first above written.
"Declarant" 21002 HB, LLC,
a Delaware limited liability company
By: 21002 HB Holdings, LLC,
a Delaware limited liability company
Its Man4k%4
Name:Title:
Cht��� �tiKcb�
794363.04/S D
132227-00009/12-4-13/4ab (2)
"City" CITY OF HUNTINGTON BEACH,
a municipal corporation of the State of California
Mayor
6A. -4arp�.r
ATTEST:
O RESOLU TIO 23-29)q.UA
lvac) Ci y erk
NTnT
APPROVED AS TO FORM:
�W4
C'vn City Attorney
RE VIE , A DAP PROVED:
City ager
REVIEWED ANC APPR VED:
Director of Pla nl ,d n Building
794363.04/SD
1 32 227-00 0 09/1 2-4-1 3//lab (3�
STATE OF FLORIDA
: SS
COUNTY OF MIAMI-DADE
BEFORE ME, the undersigned authority, personally appeared,
Chaim Elkoby who is Dersona>gy known t4 me to be the person
described and/or produced js identification and who executed
the foregoing instrurnent and before»acknowledted Ws&"execution of some.
WITNESS'my hand and official seat in the County and State last aforesaid,this 5 th
day of jeggmber 2013
NOTARY PUBLIC ERICA V.CARTER
NOTARY PUSUC
STATE OF FLORIDA.
Comm#DD0933162
my Commission Expires: �a{y,�/� Emires 1/29/2014
ACKNOWLEDGMENTS
State of California )
County of Orange )
On 0e-04",b , A6/a04L%, efore me,
(insertng me of notary)
Notary Public, personally appeared ����� 1-4 . t7b-r4y=../^
who proved to me on the basis of satisfactory evidence to be the person(-* hose name(
is/afe-subscribed to the within instrument and acknowledged to me that he/she/t" executed
the same in his/I;ieff authorized capacityoes), and that by his/4e4the�F signature(e)-on the
instrument the person(e}, or the entity upon behalf of which the person(oacted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
ROBIN ESTANtSLAU
WITNESS my hand and official seal. a COMMISSION#2017380 i
Z Notary Public California T
ORANGE COUNTY
My Comm Expires Apr 1.2017
Signature (Seal)
State of California )
County of Orange )
OreC.�m �" ,aZoi , before me,
ojf �7 `y �7/mil�i.kr ,
-1— insert name of notary)
v Notary Public, personally appeared e4k pi �-' )-7
who proved to me on the basis of satisfactory evidence to be th erson(*whose namets)
is/an subscribed to the within instrument and acknowledged to me that he/she/" executed
the same in Is/her/toir authorized capacity(fess), and that by 4Wher/t1;ie+r signature(e}on the
instrument the person(44, or the entity upon behalf of which the person(*) acted, executed the
instrument.
certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. ROBIN ESTANISLAU
COMMISSION#2017380 o
z Z :" s Notary Public-Califomia
J °' ORANGE COUNTY
o / My Comm.Expires Apr 1.2017+
Signature ( ea)
794363.04/SD
132227-00009/12-4-13//lab �4)
y
t
Recorded in Official Records Orange County
RECORDING REQUESTED BY ) Tom Daly Clerk Recorder
AND WHEN RECORDED RETURN TO ) IIIIIIIIIlIIIIIIIIIBIIIIIIlIIIIIIIIIIIIIIIIIIIIIIIIIIlllllllilllllllI I NO FEE
City Clerk ) 200700058843210 36am 09/28/07
227 160 Al2 10
City of Huntington Beach ) 0 00 0 00 0 00 0 00 0 00 0 00 0 00 0 00
2000 Main Street )
Huntington Beach CA 92648 )
[Space above this line for Recorder s use] l
This document is exempt from recording
fees pursuant to G-mcmment Code
Section 6103
AGREEMENT REGARDING VILLAGE GREEN PAIN
This Agreement Regarding Village Green Park("Agreement's is made by and between
MAKALLON ATLANTA HUNTINGTON BEACH,LLC a Delaware limited liability company
("Declarant'% and the City of Huntington Beach a municipal corporation of the State of
California("City' with reference to the following facts
A Declarant is the owner of that certain real property situated in the City of
Huntington Beach, County of Orange("County' State of California described more
particularly as follows(the "Property'
Lot 1 of Tract No 16338 as shown on a Subdivision Map
\ recorded in Book6?:3 Pages I through&inclusive of
Miscellaneous Maps, in the Office of the Orange County Recorder
Declarant intends to encumber the Property with a residential master declaration of
covenants conditions restrictions and reservation of casements(the "Residential
IDeclaratmn'� Pursuant to the Residential Declaration, Grantor shall form or cause to be formed
the Pacific City Master Residential Association(the "Master Residential Association")to own
manage maintain and operate common areas within the Property which include but are not
limited to the approximately 2 03 acre park("Village Green Park' shown on ExhibttA
attached hereto
B Pursuant to the City Council Approved Findings and Conditions of Approval for
Pacific City Project (Tentative Tract Map No 16338/Conditional Use Permit No 02-20/Special
Permit No 02 04/Coastal Development Permit No 02-12/Master Plan Pacific City Mixed Use
Project) dated June 14 2004 ("Conditions of Approval'% City desires that Village Green Park
remain dedicated in perpetuity for public use and not converted to private use
NOW THEREFORE for valuable consideration the receipt of which each of the parties
acknowledge the parties agree as follows
1 5601 41829\AGRMT,704356 4
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I Village Green Park Declarant hereby encumbers Village Green Park with a
perpetual right of public access,ingress and egress and covenants that Village Green Park shall
not be converted to private use Subject to City approval,the foregoing grant shall be further
governed by and subject to any limitations contained in the Residential Declaration which shall
include but not be limited to provisions (a)for maintenance of easements for public access and
use over Village Green Park and(b)that prohibit the Master Residential Association any other
residential homeowners association in the Property, and any owner of a condominium in the
Property from constructing or permitting the construction of any fences barricades or other
improvements that would restrict public access and use of Village Green Park except during
limited periods for construction of improvements on portions of Village Green Park or such other
times as public access and use must be reasonably restricted over portions of Village Green Park
to address public safety concerns
2 Litigation Expenses
(a) General If either parry hereto brings an action or proceeding(including
any cross-complaint counterclaim, or third party claim)against the other party by reason of a
default,or otherwise arising out of this Agreement, the prevailing party in such action or
proceeding shall be entitled to its costs and expenses of suit including but not limited to
reasonable attorneys fees which shall be payable whether or not such action is prosecuted to
judgment "Prevailing Party"within the meaning of this Section 2 shall include without
limitation a party who dismisses an action for recovery hereunder m exchange for payment of
the sums allegedly due,performance of covenants allegedly breached,or consideration
substantially equal to the relief sought in the action
(b) Appeal Attorneys' fees under this Section 2 shall include attorneys fees
on any appeal, and, in addition, a party entitled to attorneys fees shall be entitled to all other
reasonable costs and expenses incurred in connection with such action
(c) Alternative Dispute Resolution City and Declarant may but are not
obligated to, submit any factual or other(to the extent City is not prohibited by law or otherwise
from doing so)dispute ansing under this Agreement to non binding arbitration mediation,
judicial reference or other alternate dispute resolution mechanism("ADR' of non judicial
dispute resolution The party requesting ADR shall give written notice of its request specifying
the requested ADR procedure to the other parties, who shall notify the requesting parties of its
agreement or refusal to proceed within a reasonable time after receipt of the requesting notice If
the parties agree to proceed,they shall select a mutually acceptable individual with
qualifications appropriate to the subject matter of the dispute,to conduct the designated ADR, or
if the parties cannot agree on such individual,they shall submit the dispute for the applicable
ADR to a commercial ADR service In all events, the proceedings shall be conducted only in a
manner acceptable to both parties The parties may enter into operating memoranda from time to
time to establish procedures for the initiation and conduct of such ADR mechanisms
3 Time Time is of the essence of this Agreement and each and every part hereof
4 Covenants Each of the covenants set forth in this Agreement(i) shall run with
the land, (n) shall be binding upon and shall inure to the benefit of any person or entity having
or acquiring any interest in any portion of any property benefited or burdened thereby during the
period of such person s or entity s ownership,and all of their respective successive owners and
11 5601 41829WGRMn 704356 4
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assigns,and(ni) shall be binding upon and shall inure to the benefit of the property benefited or
burdened thereby and every portion thereof and interest therein
5 Amendment This Agreement may be amended or otherwise modified only in
writing signed and acknowledged by City and Declarant or the successors and assigns of each
6 Successors and Assigns Subject to Section 1 above, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns
7 Exclusive Benefit of Parties The provisions of this Agreement are for the
exclusive benefit of City and Declarant and their successors and assigns, subject to the
provisions hereof and not for the benefit of nor give rise to any claim or cause of action by any
other person
8 Governing Law This Agreement shall be governed by and construed in
accordance with the laws of the State of California
9 Counterparts This Agreement may be executed in any number of counterparts
each of which shall be entitled to be the original and all of which shall constitute one and the
same agreement
10 References, Titles Wherever in this Agreement the context requires reference
to the singular shall be deemed to include the plural Titles of sections and paragraphs are for
convenience only and neither limit nor amplify the provisions of this Agreement
11 Notice Any notice given under this Agreement shall be in writing and given by
delivering the notice in person by commercial courier or by sending it by registered or certified
mail or Express Mail,return receipt requested,with postage prepaid to the mailing address
listed below or any other address notice of which is given For the convenience of the parties
copies of notices may also be given by telefacsimile to the telephone number listed below or
such other numbers as may be provided from time to time
For Declarant Makallon Atlanta Huntington Beach LLC
4100 MacArthur Boulevard Suite 200
Newport Beach CA 92660
Attu Project Manager
Telefacsimile (949)255 1128
For City
City Administrator City of Huntington Beach
2000 Main Street
Huntington Beach,CA 92648
Telefacsimile (714) 536 5233
111 5601 4182MGRM11 704356 4
8/14/07
Director of Planning City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Telefacsimile (714) 374-1573
Director of Community Services City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
Telefacsimile (714)374 1654
Any mailing address or telefacsimile number may be changed at any time by
giving written notice of such change in the manner provided above at least ten(10)days prior to
the effective date of the change All notices under this Agreement shall be deemed given
received,made or communicated on the date personal receipt actually occurs or if mailed, on the
delivery date or attempted delivery date shown on the return receipt A person may not give
official or binding notice by telefacsimile The effective time of a notice shall not be affected by
the receipt,prior to receipt of the original or a telefacsimile copy of the notice
12 Severability If any provision of this Agreement shall to any extent be invalid or
unenforceable the remainder of this Agreement(or the application of such provisions to persons
or circumstances other than those in respect of which it is invalid or unenforceable) shall not be
affected thereby and each provision of this Agreement,unless specifically conditioned upon
such invalid or unenforceable provision, shall be valid and enforceable to the fullest extent
permitted by law
13 Entire Agreement This Agreement together with any attachments hereto or
inclusions by reference, constitute the entire agreement between the parties on the subject matter
hereof and this Agreement supersedes and cancels any and all previous negotiations
arrangements agreements and understandings, if any, between the parties hereto with respect to
the easements which are the subject matter of this Agreement
14 Survival All representations warranties,waivers and indemnities given or
made hereunder shall survive termination of this Agreement
[SIGNATURES ON FOLLOWING PAGES]
1V 5601 41829\AGRMTi 704356 4
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IN WITNESS WHEREOF,this Agreement has been executed by the parties hereto on
August 20 200 7
CITY CITY OF HUNTINGTON BEACH,
a municipal corporation of the State of
California
00,
ao
ATTEST
j2'-A
City Clerk
URSUANT TO RESOLUTIONNO 2003 29)
OVED AS TO FORM
City Attorney
APPRO ED AS TO FORM
Kv v
Director of Planning
REVIEWED/A D APP OVED
i
City A mistrator
V 5601 41829\AGRMn 704356 4
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of 04116c--
On before me �-
Dete Nam e end Trtle of Officer(e g ane//Doe NoL�Pubhpersonally appeared GIL SD
ame(a)of Signer(a)
'personally known to me
❑ (or proved to me on the basis of satisfactory evidence)
to be the person(s)whose name(s)is/are subscribed to the
within Instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
P l ESPARZA capacity(ies) and that by his/her/their signature(s) on the
Commissbn#1599179 instrument the person(s) or the entity upon behalf of
QIMVCOMM
Notary Public C�kwft which the person(s) acted executed the instrument
ran
Oge County EWkesRug4 2009 WITNESS my hand and official seal
Place Notary Seal Above
Signatur
��f��,�
Signature of Not Public
OPTIONAL
Though the information below is not required by law it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document
Description of Attached D u ent
Title or Type of Document
Document Date 02 ,/'7�.� Number of Pages
Signer(s)Other Than Named Above
Capacity(ies)Claimed by Signer(s)
Signers Name Signers Name
❑ Individual ❑ Individual
❑ Corporate Officer—Title(s) ❑Corporate Officer—Title(s)
❑ Partner—❑ Limped ❑ General ❑Partner—❑ Limited ❑General
❑ Attorney in Fact ° ❑Attorney in Fact '
Trustee Top of thumb here ❑Trustee Top of thumb here
❑ Guardian or Conservator ❑Guardian or Conservator
❑ Other ❑Other
Signer Is Representing Signer Is Representing
0 2006 National Notary Association 9350 De Soto Ave PC Box 2402 Chatsworth CA 91313 2402 Item No 5907 v609 Reorder Call Toll free 1 800 876 6827
DECLARANT MAKALLON ATLANTA HUNTINGTON
BEACH,LLC,
a Delaware limited liability company
By Makar Properties LLC
a Delaware limited liability company
an Authorized Member
By
Name "(C.xiO&L
Title eQP -
By
./Q,
Name ®opts S.Kfet
Title C V.P opt and r
v 1 5601 41829\AGRM R 704356 4
8/14/07
STATE OF CALIFORNIA
COUNTY OFiPi�/�G�
On 5r /6- before me,
��//��,,'� (here insert name and title ele of officer)
personalty appeared «`'//l'/�/T�G C�'��G'7
personally known to me ts of saftsfitetozy eTTdepwo to be the person
whose name is subscribed to the within instrument and acknowledged to me that he/5*11'executed
the same in his/�authorized capacity and that by hisAaef—signature on the instrument the
person,or the entity upon behalf of which the person acted executed the instrument
WITNESS my hand and ial seal
ILO won*i"n4o
NO"PuMo cAftffja
OMW CCU*
Signature 11001
MyCo�ernn. �
(SEAL)
STATE OF CALIFORNIA
COUNTY OF 4���r�
On�,l`r��j/� 20 before me l
�i (here insert name and title of the offs )
personally appeared��(�/ �'/,46 & /1 /EG
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/she executed
the same in his/her authorized capacity and that by his/her signature on the instrument the
person or the entity upon behalf of which the person acted executed the instrument
MA
WITNESS my hand and official seal 1111,
won*1667a�
ry PubliC Cdfo►r�
orange.COM MOVUL�1
Signature
m E>
(SEAL)
Vil 5601 418291AGRM71704356 4
8/14/07
EXHIBIT A
DRAWING OF THE APPROXIMATE LOCATION OF VILLAGE GREEN PARK
1X 5601 41829'AGRMT\704356 4
8/14/07
EXHIBIT "A"
APPROXIMATE LOCATION OF VILLAGE GREEN PARK
PACIFIC CITY - HUNTINGTON BEACH
NOTE THIS DEPICTION F `OR ILLUSTF^TIVE PUPPO,E�) ONLY
THE AQ-BUILT CONDITIONS WLL PPEVAIL
Y J
� ATLANTA AVENUE
TRACT NO16338
1 1 �� RGRE
/ / 1
Z
TYPICAL
/CCO \ 3 I
SST � O
LEGEND
VILLAGE GREEN PARK
DATE AUGUST 14 2007
First American Title Insurance Company
National Commercial Services
1737 North First Street
Suite 500
San Jose, California 95112
Vanessa Almanza Direct Phone Number:(408)451-7840
FAX:(408)451-7836
valmanza@firstam.com
December 27, 2013
City Clerk
City of Huntington Beach
2000 Main Street
Huntington Beach, CA 92648
NCS-588025-SC
Buyer: Pacific City Hotel, LLC
Seller: PC Group Retail, LLC
Property: Lot 3 of Tract No. 16338, Huntington Beach, CA
To Whom It May Concern:
In connection with the above referenced transaction, we the following:
® Original Recorded documents
Stn 'ely;,,
rican Title Insurance Company
tines Im nza,
,.�EZrow A istant