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Robert L. Mayer - 1993-06-14 (5)
i >r C11'V OF NUNTiNGTON BEAC64 j COUNCIL - ADMINISTRATOR COMMUNICATION' MUNYINGTON I(AC11 r' To Honorable Mayor and From Michael T. Uberuacf�? ,/ G City Councilmembei s City Administrator Subject REVISED MINOR ANIENDmr:.NT -- Hate .lone 14, 1991 WATERFRONT DDA 1 On the agenda for Monday, .tune 17, 1991 is an item captioned "MirioT• Amendment — The Waterfront Disposition and Development Agreement" which would accelerate the timing of certain payments by the Agency to The Waterfront. r The version of this amendment transmitted witn the agenda packe+ incorporates a broader revision than was intended. 'fhe Request for Agency Action, however, accurately depicts our deslre to make available to The Waterfront repayment of certain advances which are now owed and which are accruing interest at a maximum rate of 12% which exceeds Interest earned on city investments. Therefore it is to the City and Agency's advantage to pa,, the amounts that are owed to the Mayer Corporation. With the Agency's approval of this amendment we will continue to work with The Waterfionf on an amended Disposition and Development Agreement. MYU/SVK-jar 9200r �r r s R 1� REQUEST FOUR REDEVELOPMENT AGENCY ACTION RH 91-36 1 Date June 3, 1991 / Submitted to: Honorable Chairman and ttadcve'.opment Agency Members Submitted by: Michael T. Uberuaga, Executive Director Prepared by: Barbara A. Kaiser, Deputy City Administrator/Economic Development Subject: A Resolution W. Require a Thirty-,Day (30) Redevelopment Agency Review Pedal Prior To Action on Crwner Participation/Disposition and Development Agreement Cor`iistent with Council Pokey? C l Ye: ( ; Now Policy or Exception Statement of Issue, Recommendation, Analysis, Funding Source, Alternative Action:. Attachments: 5�TE1 NT C F LSWE: In order to provide Redevelopment Agency Members with sufficient time to review the i intricacies of Owner Pdrticipation/Disposition and development Agreements (O"A/DDA), a minimum review period of thirty (30) clays will need to be established. Motion to: ".Approve Resolution No. directing the Executive Director to forward ccrples of Owner Participation Agreements/Di%mition and Development Agreements to the Redevelopment ,Agency thirty (30) days prior to required action." �At YS1�: At the City Council meeting of April. 22, 1991, Councilwoman Grace Win%hell requested that the Agency adopt A policy which wall provide the Agency with an adequate amount of time to review OVA/DDA Agreements. Attached i5 e. resolution which will require the Executive Director to forward copies of propmed f PA/DDA Agreements to each Redevelopment Agency Member a minimum of 'thirty (30) dayb prior to any request for action. 1;iot appl;cable. ALURNAIM _IM: l) Ccritinue this item for additionF 1 information. Ampc 1) Resolution No. .__,!��, MTUMA K.la 9361r { IS, ` tam a �.l 7-a OF Fi;t of P.O. BOX 2740 5 M���G.t+, a, a•r ,,,da tr 2OW MAIN SPREE r HURTINOTON %VCH � 'i"''x�'t`t''>rl�.9 5�-t��+�► k • ,�ALIFORNIA 9Y6*47 GAIL HUTTON TELEPHONE City Attorney s f7!4y 536.6y'6 September 20 , 1988 - V V Jeffrey M . Cclerman, ELq . RUTAN & TUCKER Central Bank Tower , Suite 1400 South Coast plaza Town Center 61.1 Anton '"6u levatrd P . O. Box 1950 Costa Hasa ,- CA 92628-1950 Thomas P . Clark , Jr . , Esq . STRADLICiG , YOCV t CARLSON & RAUTH 660 Newport Center Drive , Suite 1600 ;A,awport leach , rA P2660 RE : Waterfront DDA and Development Agreement Amendments Dear Jeff and Tole: Pursuant to our discussions of September 19 aal 20 , 1988 , attached tereto are the amendments to the DDA ( Section 707 ) and the Development A.greemei;t, at pages 46 and 47 . Since the Development Agreement amAndments were read into the record at the Agency/Council meeting on Monday , Septerrher 19 , 1 am by copy he►•eoi tralnsmitt?"g the same to the City Clerk for her files . Very truly. yours , 41W GAIL HUTTON City Attorney GH : UP Attachments 5922--1 cc : William S . Amsbacy, Assistant City Attorney Art De La Lone, Deputy City Attorney Oir.y Clerk M 1y this Section 705 of the Ac rneme:nt and stating that they are being subvitted and will 1 ,a deemed approved unless rejected within the stated time. 1, 0063 Amendments to this Agreement The Developer and Agency agree to mutually consider reasonable requests for amendments to this Agreement which nay be made by lending institutions , or the Agency's counsel or financial consultants, provided said requests are consistent with this Agreement and would not substantially alter the basic business ten4s includal herein. Minor modification; to this Agreement which do not materially affect the rights or obligations of the Agency may be approved by the Executive Director without the necessity of additional. action by the governing boards of the Agency. C. (1707) c:coFsration it the Event of Lolkqi1 ChalJ en-ge Ire the event of any legal challenge instituted by any third party chalAnnging the validity or enforceability of any provision of this Agreement:, or any approval by City or Agency referenced in Section 203 hereof ,(incltiding but not limited to approval of the "change of u3e11. of the existing mobilehowe park on the Devcloper Parcel , the Relocation Assistanca Plan approved therefor, and the indivIdual agreements to be entered into between the Agency and individual mobilehome tenants and owners pursuant thereto) , or any other action . by either L"rty hereto in performing hereunder or under the aforementioned approved Relocation Assistance Plan or individual agreements referenced therein, as the some may be amended from time to tire, the parties bereby agree to cooperate in defending said action as aryl 1 .?nit•-ti in this Section 707 . The agency shall have the right, but not the obligation, to defend any such action; provided, that without that ,Developer's prior written consent, which consent eshall not be unreaa..•nably withheld, the Agency shall not allow any default: or Jvi dgzent to be taken against it and shall not enter Into any settlement or compromise of any clain which has the efZect, directly or indirectly, of prohibiting , preventing, delaying, or further conditioning or impairing the Developer's development, use, or maintenance of any portion of the 'Site or impairing any of the aevalopetr' s rights hersunbder. In addition, the Agency shall provide reasonable assistance to the Developer in defending any such action, such_ assfsta±nce to include (i) making available upon re Ason,able notice, 'and at no cost to the Developer, Agency officials and employees who are Pr may be witnesses in such a 8/1 S/8 8 FINAL 4 i action, And ( ii ) provision of cther infcrmatior within the custody or control of the Agency that is relevant to •--h4 . :subject matter o the action . The Developer ::t-.311 have the obligation tc defend any such action; provided, however, that this obligation to deferid shall not ba effectiva if and to the Extant that the Developer determines ir, its reasonable discretion that such action ; s meritorious or that the interests of the parties justify a compromise or settlement of such action. In this regard, Developer' obligation and right to defend shall include the right to 1�ire attorneys and experts necessary to defend (suo j ect to approval by the Agency) , they right to process and settle reasonable claims, the right to enter into reasor- ble settlement agrf:3ments and pay amounts as required by .ne terms of such settlement agreements, and the right to pay any judgments %sse.-sed against Developer, the Agency or the City. If the Developer ' defends' any such ac.1-ion, as set forth above, it shall indemnify and hold harmless the Agency and City from and against any claims, losses, liabilities, or damages assessed or awarded against either of them by way of judgment, Settlement, or stipulation, but not including any litigation expenses or attorriey's fees incurred by either the City or Agency in defending said action as set forth herainrbove. Notwithstanding any other, provision of this Agreement to the contrary, all costs and expensos incurrec? by the Doveloper in defending any litigation arising out of the processing, approval, and/ter implementation of the "change of use" of the existing mobilehome park on the Developer Parcel , the relocation of the tenants there,' rom, and payments to or fer the benefit of such persons shall be reimbursable pursuant to Section II . I of the Scope of Development (Attachment No. 3 ) and Paragraph 5 of the Method of Financing (Attachment No . 5) . 'In the event any such litigation involves other claims or issues, the :ei.m!::ursement due t,i the Developer shall be a fair proration based upon the percentage of time and expense allocable to those issues and claims for which the Developer is entitled to reimbursement and those clai-nir, and issues for which the Developer is not entitled to reimbursement . *INSERT H. [ §708 ) Attorneyfs Fees If either party to this Agreement is requirek.. to .1siitiate or defend litigation in any way connected With this Agreement, the prevailing party in such litigation, . in addition to any other relief which nay be granted, whather legal or equitable, shall be entitled to reasonable attarney•s fees. Except as may be exprAssly provided elsewhere in this Agreement, if r�.ther party to this Agreement is required. t,a .initiate or defend litigation with a third party because of the violation or alleged violation of -SJ- 06/1S/88 FINhh I I I ' I• 1 1 1 A ADDITION TO DISPOSITION AND DEVELOPMENT AGREEMENT 5707 =!otwithstanding any provision herein to the contrary , should any action be brought with respect to any claim that this contract vi,clates Section 614 of the City of Huntington Beach City Charter and/or the California Public Contracts Code by virtue of Any reimbursement provision herein , the developer agrees at its own non-reimbrrsab:?.e expense to defend , indemnify and hold the City and Agency harmless due to any failure of the City or the Agency to follow the full public bid requirements as to the reimbursable portions of the project . F'u.t.her , developer acknowledges that in the event that the publfc bidding process is judicially held to be required far any improvements which have already beeTs ccnstructed ,, the City and/or the Agency may be enjoined or otb erwise oftiered to withheld the Leinbursement payments hereinabove otherwise required. I • 1 1 r • •1 Y I \ 1 terminated pursuant zo the provisions of this Agreement , this Agreement shall be enforceable by either party hereto n:,twithsta.ndino any change hereafter in any appl icab: e General Pla;l , Redevelopment Plan , Specific Plan, zoni►,ig ordinh nca, subdivision ordinance or any other .land use ordinance or building ordinance , resolution , or regulation , rule , or policy adopted by City . Findincia. I. City hereLy finds and deter±nines that executiov of this Agreement is in the best interest of the- public health, safety, and general welfare and the ,provi:�i.ans of this Agreement are consistent with the City-#s General Plan. Excas Specifically provided in' the DDA, 2 . A City further finds , bared upon rill information nade available to the- City pl•ior to cr concur- rently with the execution of this Agreement, that there ire no City ordinances , regulations , rules , or official r.3olicies �. . in .force as of the Effective Date of this Agreement that would prohibit or prevent the full conplation and occupancy of the Project described herein. I. Sever billity, If an;, term, provision, cove- nant or condition of this Agreement is held by a court: of competIant jurisdiction to be invalid, void or unenforceable , the remaining provisions of this Agreement shall continae in full farce and effect, unless the rights and obligations of t , . ATTACHMENT WO . 9 Page+ 46 of 51 b8 f l f 6 FINAL sue+ ► , • 1 the parties have been materially altered or abridged by such invalidation, voiding or unenforceability . J . Cooperation ; Execution of. Documents . Each i party shall execute and deliver to the other all s«ch other further instruments and documents as may be necessary to carry aut this Agreement in order to provide and secure to the other party the full and complete enjoyment of its rights dnd privileges hereunder. K. -7ustifieble Rel".ance. City and Developer each acknowlsoge that, in investing its tine , money, and expertise •e f-)r th,,i dievelopment of the Project, it will be reasonably and us•titiabl u the other � Y relying Y g can p party's ccvennats contain- ed in this Agreament, and those specificalll-X articolated in the DDA . 1 City further acknowledges that the Fro j ect is and shall be conaxdered a single integrated develoVmarit projec�:, and that the Developer' s development of each component of the Project is dependent upon its right to complete and occupy each other component, and that the economic viability of each component of the 'Project is and shall be dependent upon the Developer's right to complete and occupy each other cumporient and upon the City ' s full performance of its obligations under this. bevelopMent Agreement . L. Notices , Any, notice or communication hereunder between City or Developer shall be in writing, and may be given either ipersonally or by registered or certified mail , 1 . ATTACHMENT NO. 5 Pag• 41 of 51 48,/15/8S FINAL 1 ' '. --"r.�_•...7r'_,.. ..+•+�.- _ "_w•_. ._.r.....,.._� ��_...._•T•►^—•.-r'-r^�-_.•,.rr�- ... .�; .Tom.. .� T-� • .�. .. .. .....�.' • _ - - I. .. -• .ram _ _ r ♦. J f 1 :� 6• 1 • • ORIGINAL j7( THE WATERFRONT ' � J • DISPOSITION 71 DEVPLOPMENT AGREEMENT A%~ t - r 7 - r ' P f• t• Of '..Y. • . _ . • t•�,r,_.�.-.,�•„��...• •._ 1._.--..^r---��� - .•:-��-t. ��•--'-� _ter-_1'7r-_.. .._�___TT J T , �� ` • DISPOSITION AND DEVELOPMR.117' AOTAISHEKT 1 . • Y f r 1 _ 1 \ w. I i . � f I • 1 y rEVEL0PXZNT hm."NCY OF THE CITY' OF HUNTINGTON ZZACKp And �. , • s I r of theRobert L. Mayor TrU$t ofdated < June 22 , 1982p as amendedDEVZLOPER �. 4. ILL lk f ,1 1 R' •� ♦ h + r w 1 i t C TABLE CIF CONTENTS Pace 1 . (§100] SUP.JECT OF AGREEMENT 1 A. ( § 101 ) Purpose of Agreement . . . . . . . . . . . . . . 1 , B. ( §102 ] The Redevelopment Plan . . . . . . . . . . . . 1 -� , C. ( §103] The Site . . . . . . . . . . . . . . . . . . . . . . . . . . 2 D. ( §104 ] Parties to the Agreement . . . . . . . . . . 2 1 . ($105] The Agency 2 2 . (1105) The Developer . . . . . . . . . . . . . . . . . . s 3 . ( §107] Restrictions on Developer's Rights to Assign . . . . . . . . . . . . . . . 3 II . (§200] TASKS TO BE ACCOMPLISHED PRIOR TO . ` DISPOSITION TRANSFERS . . . . . . . . . . . . . . . . . . . . 8 A. ( §202] Agency Acquisition of Cityfs Inter$st in :Sites Revised Lease Covering Developer Parcoal ; Acquisition of Remainiinq Property, Interests in thl Site Required for Development 8 i � B. (5202) Reserved . . . . . . . . . . . , . . . . , . . . . . . . 15 C. [§203] Plari Submittals and Reviews . . . . . . . 15 r` [;204] Submittal of Evidence of Financing Comas itmentss . . . . . . . . . . . . . 18 E. (§205] Approval of Hotel Operators . . . . . . . 20 , i F. C1206] Approval. of Hotel Franchisors 21, ; Ill. [000] DISPOSITION TRANSFERS . . . . . . . . . . . . . . . . . . . 23 A. ;12a1) DlsspsasAi.tion Transfers; General . . . . 23 B. ;J302] Purchase Price for the Residential Paxtionr bent for the Co rcial portion . . . . . . . . . . . . 27 i -wwi.r son& i t C. [ §303 ] Escrow for Disposition of Separata Development Parcels . . . . . . 2S D. [ §304 ] Closs W Escrow and Transfer and Delivery of Possession of Separate Development Parcels 31 E. [§305] Farm of needs for Separate Development Parcels in Residential Portion . . . . . . . . . . . . . . 32 F. [§306] �Condirion of Title 32 0. [13h7] Time for and Place of Delivery . - of Deed(s) and Lease (s) . . . . . . N . . . . 32 K. [§308J Taxes and Assassments 32 j I . [§: 09] Reco-dation of Deed! and Leasms . . . . . . . . . . . . . . . . . . . . 33 J. ( §310] 'Title Insurance . . . . . . . . . . . . . . . . . . . 33 K. [§311] occupants of the Site 34 L [§312] Physical Condition of the Site . . . , 34 W. r §313 ] Limitations on Time and Phasinq of Disposition Transfers . . . . . . . . . . . 34 e.J IV. [ §400] DEVELOPMENT OF THE SITE BY THE DEVEWPER, 40 A. r §401] Swope of Development, 9040POW66webas 40 P. [ §402] Cost of Construction. 40 .w' C. [ §403 ] Construction Dchedule . . . . . . . . . . . . . 40 D. [ §404 ] Hodi;y Injury and Property Damage Insurance 40 t E. [§4 05] City and Other Govarnmeni"al Agency Permits . . , . . . , . . ,. . . . . . . . . . . 41 F. ( 14061 Rights of Access . . . . . , . . . . . . . . . . . . 42 ©. [$4 07] Local, State and Fades;:al Laws . . . .• . 43 � 1 1 l fir► 1 �f H. ( §408) Antidiscrimination During Constructic.. . 43 i I• [§409] Taxes, Assessments, Encumbrances and Liens . . . . . . . . . . . . 43 1 i r , 3 . [ §4101 Holder Not Obligr!ted to Construct Improvements . . . . . . . . . . . . 44 K. [ §411 J Notice of Default to Mortgagee or Deed of Trust lioldLxr. ; Right to Cure 44 L• [ §412 ] Failure of Holder to Complete ..., Improvements . . . . . . . . . . . . . z . . . . . . . . 45 M. [ §413 ] Right of they Agency to Cure Mortgage or Deed of Trust Default 46 N . [ §414 ] Might of the Agency to Satisfy .,t Other Liens on the Site after . Title passes . . . . . . . . . . . . . . . . . . . . . . 46 �. 0. f §415] Certificate ficate cf Completion 46 V. [5500) USE OF THE SITE : EFFECT AND DURATION OF COVENMTS . . . . . . . . . . . . • . • . . . . . . . . . . . . . . . 46 A. [ 5502) Uses • • • • • 6 • . • • ♦ , . • • • • • • • • • • . • • . • • ■ 48 4 B. ( 5502] Effect and Tuiation of Covenants . . 50 9w VI. [4 600] DEFAULTS AND REMEDIES . . . . . . ■ . . . . . o . . . . • . 51 L'. [§601 j Defaults--General . . . . . . . . .•. . . . 1 . • . 51 B. [5602] Legal Actions . . . . • . . . . . . . � . . . . . . . . 51 1. [§6031 Institution of Legal Actions • . 51 2. [5604 ] Applicable Lrw _ . . . • • . . . . • . . . . • 52 3 . [�605] Acceptance of Services of Process . . . . . . . . . . . . . . . . • . . . . . . 52 C. 116061 Rights srid leme cries Are Cumulative. 52 00/15/94 nNAL 5, r 1 D. [ §607 ] inaction Not A Waiver of Default. . . 52 E. ( §60S] Termination By The Developer . . . . . . 53 ( §609] Termination by the Agency . . . . . . . . . 55 i 0 . ( 9610] No C+oss--Defaults 57 xi. [ §Eiil] 1irhitration . . . . . . . . . . . . . . . . . . . . . . . . 57 V i . [ §700] GENERAL PROVISIONS 60 A. [§701] Notices, Demnnds rid Communi- cations Among the Parties . . . . . . . . . . 60 B, [ §702 ] Caiaflicts of Interest . . . . . . . . . . . . . 60 C. 1170'* j Enforced Delay ; Extension of Times of Psrfomance , . . . . . . . . . . . 60 D. [ 1704 ] Non-liability of officials and Fmployeas of theAgent:u 67. E. ( §7 05] SuIbmit;tal of Ducu31+; n s to the Agency for Approval . . . . . . . . . . . . . . . 6i f F. ( §706) Amendments tc this Agreement . . . . . . 62 G. [1707 ] Cooperation rn the Event of Legal Challenge 62 H'. ( §708 ] Attorney's Fees . . . . . . . . . . . . . . . . . . . 63 I. (§709] Severability . . . . . . . . . . . . . . . . . . . . . . 64 i VIII. [§800j ENTIRE AGREEMENT, INTERPRETATIOU; WAIVERS, APPROVALS . . . . . . . . . . . . . . . . . . . . . . 64 Tit. (§900j TLME FOR ACCEPTANCE OF AGREEMENT BY AUNCY . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . 55 4., .•o w•Iwo : ♦ I • w I r �!. No IA si.te Map No . 2 [Reserved ' 7 f � M t. 1 \\ • . Scope of' olopment • _ Nco . 4 Schedule at Performance No . Ma-hod ot FinRnc.ing Lease . ' • • ort Nn . 9 Developnent e . . 6/3.12/065580-0001/,'001 w i • .. • ' I r r r i. ' 3 DI SPOSITI014 A*7D Di:VELOPME:NT AGREEMENT TIIIS DISE—;O aITION AND LEVE;LOPMENT AGRE'EMFNT (the "Agree•- Znen t") is entered into th?.s 15th day of August, 1988 (the "Effective Date" ) , by and between the REDEVELOPMENT AGLNCY OF THE CITY OF HUNTaNGTON REACH (the "Agency" ) and ROBERT L. 1�'�.AYER, as Truz�tec: of the Robert L. Mayer Trust of 1982 , dated June 22 , 1982 , as zimendcc' (thy-: '►Developer" ) , The Agency and th,e P.etreloper hereby agree as follows : 1. [ § 1.001 SUBJECT OF AGREEMENT A. r§1.01 ] F�u!n osq of Agreoment. The :spurpose of thin Agreement is to effectuate the RedevelopmentPlan (as hereinafter defined) for the Main-Pier Redevelopment Project (the 'Project") by providing for the disposition and development of certain property situated within the Project Azea (the "Project Area:' ) of t:ie Project. That portion of. the Project Area to be developed pursuant to thip ;gree-ment (the "site") is depicted on the "Site Map" which is attached hereto as Attachment No. 1A and incorporated herein by this reference . Thin Agreement is entered iiito for the purpose of developing the site and not for specu?otion in land holding. Conpletinq the development on the site► pursuant to this Agreement is in rhe vital and best interost: of the City of Huntington Beach rt:he "City") , and the health , safety, morals and welfare of its residents; and in accord with the public: purposes and provtsioris of applicable state and local laws anC requirements under which the Project has been u.idestaken. 8. ( 5102 ) The Redevelopment Flan The Radevelopnent Plen was approved and adopted by Ordinance No. 2 578 of the City Council of the city and emended by Ordinance No. 2634 ; s.ui.d ordinances and the Redevelopment plan (the "Redevelopment Plan") are incorporat- ed herein by this reference . No amendmr.nts to the Redevelopment Plan which changes the uses or development perzaitted on the Site, or ethorwise change any of the restrictions or controls that, apply to the S.cte, shall be: efteotive with xesrect to the Site without the written consent of Developer , 0s/15/80 FINAL MIY/ 1 C, 1 §10' ) The Site The Site is that portion of the nroject Area so designated on the Site Map (Attachment No . IA) and described In the "Legal Descri»t: i.on" whiz.h is attached hereto as attachment No. 1B and its.orp j ated 'herein by thi s reference . The Site includes the - kevelopei Parcel " , the "City Beanh Maintenance Facility Parcel" , and the "Beach Boulevard Rennznt- Parcel " , tirhich are each, cansignated ►o)n the site Map (Attachment Nu . 1A) . It is understafid that the Site will be developed in phases , witia approximately twenty and eight- tenths (20 . 8) acres (net of dedicated streets and right-of-- way) ultimately to be developed with commercial uses and approximately twenty-three and six-tenths (23 . 6) acre. (net of dedicat,:d streets and right-of-way) ultimately to be developed with reside►itial uses, in accordance with the Design Concept Drawings (Attachment No. 2) , the "Scope o,: Development" (Attachment - No . 3 ) , the "Schedule of Performance" (Attac)� .ent No. 4 ) , and the other terms and conditions set forth hereinn. The approximately 20 . 8 acme portion of the Site to be developed with commercial uses is sometimes hereinafter referred to as the "Cair.mercial Portion' and th-:•' approximately 23 . 6 acre portion of the Site to be developed with residential uses is snmeti•me5 hereinafter referred to as the "Residential Portion, " It is further understood that, subject to the terns and conditions set forth herein, the S it_e will be subdivided bet-v.-n the Commercial Portion and Ri-sidentir.l. Portion and anong the phases of development within the Commercial Portion and the Residential Portion. Each indi- vidual lL-gal parcel created pursuant to said subdivision process shall be classified as a "Separate Development Parcel" as that term is used in this Agreement. D. [ §104] Parties to the Agreement 1 . W.-Of.] The Agency The L,oncy is a public "Jody, corporate and politic, exorcising govc ..==tal functions and powers and organized and existing under, Chapter l of the Community Redevelopment Law of the State of California. The principal office of the Agency In located at city Hall , 2000 Main Street, Huntington Beach, California 92648 . 08/15/8 8 FINAL } The term "Agency , " as used in this Agreement, includes the Redevelopment Agency of the: City of xuntiaegtcan Beach, and any assignee of or successor to it:, righto , powers and responsibilities . 2 . [ § 106 ] The _De�lnper '-Ihe De ve'l.opex is RDA�,,,'I' L. MAYER, as Trusstse of the Rohert L. Mauer Trust ::f 1937-. , dated June 22 , 1982 , as asntmided. The L. .veloper has repr•s =ted to the Agency ttla-%`, the Deveelopi:r has the experience and qualifications necessary to perform as Developer pursuant to this Agreement . The prit;cipal office anI maill,ng address of the Developer For purposes, of this Agreenent is 660 Newport Center Drive , Suite 1053 , Newport Beach, Calitornii-I 92660. By executing this Agreeenent, each person signing on behalf of the Deeveiopar warrants and r.epres%nts to the Agency that the Developer has the full power and authority to enter into th::s Agreement, that all authoriza- tions required to make this Agreement binding upon the Dovel.oper have beer, oLtained, and that: the person or persons executing this Agreement on behalf of the Developer has been fully authorized to do so. The term "Dtsveloper" as used inthis Agreement incl odas RQDERT L. MAYER, as Trustee of the Robert L. Mayer Trust of 1982 , dated June 22 , 1982 , as amended, and any pernittal assignee of or successor to any of its right$, powers , and reslionsibilities hereunder. 0 . [ §107 ] RR striction& can _ Developer' s Right to AzsLqn The qualifications] and identity of the Developer are cf particular concern to the Agency. yt iS because of those quo lificationa and identity that the Agency has entered into this Agreement with the Developer. Accordingly, prier to the Agency's iazuarsr:e of a certificate of Completion with respect to the entire Site or, as to each Separate Development Parcel, prior to the Agency's issuance of a Certificate of Completion with respect to said parcel , all as provided in Section 415 below, Developer shall not , except as permitted in thin Section 107, assssign all or any part o; this Agr►�ement or any rights hereunder without the prior written approval of the Agency. No purported - asssignsment in violation of this Agreement shell be valid or oftectiveR. The Agency agrees that it will not unreasonably withhold or unreasonably conditions such approval . The Agency further agrees that in the event of a request by Developer to av elgns all at Developer's interest in the Agreement, the Site, or a Separate Development Parcel, the Agency shall "3- .,, r grant such approval. provided: (1) such 7SS1 k- triment is made in connection: with the sale or Lease for develoriaent of the Site or a Separate Develapine, ,t Parcel to a responsible third party who will undertake the Developer's responsibilities under this Agreement to us? and develop the Site, or Separate Development Parcel , in accordance it.-ith this Agreement ; ( ti.) such third party shall demonstrate development qualifications and experiance with ;:expect tc, the type of development propow-?d herein to assil- the development of ti,e Site , or Separat� novel op.ment Pa._ L , cTial to or greater than the qualifications ations and expari ence of Robert L. Maher as of the EffeCtive :utt3 of this Agreement ; and ( i ii) such third party shall demonst! :te suf f.icient financial commitments; or resources to assure development of the Site, or Separate Development Parcel , in accordance with this Agreement . For purposes of clause (ii) above , Agency shall approve the proposed assignee if the assignee demonstrates to Ac.rency 's reasonable satisfaction that it possesses financial rr Aources and abilities equivalent to or greater than those of Robert L. Mayer as of the date of this Agreement ; provided, that the foreg-jirg shall riot be construed to imply that a proposed assignee With a net worth less than the net worth of Robert L. lrayer as of the date of this; Agreement shall not be an acceptable assignee. Notwithstanding the foregoing , Developer shall be entitled to make Ln assignment which consists of a mortgage o deed of trust, sale and lease back, or other form of conveyance for financing, provided that the Agency determines in its reasonable discretion that sur:h an assignment is made to a lender approved by the Agency pursuant -to Section 204 below for the purpose of tacuring loans cf funds to be used sorely for financing the direct and indirect costs , including w'thout limitation financing costs, interest, and commissions , of planning, designing, constructing , developing, leasing, and operatinq the improvements to be constructed by the Developer with re©pect to the site or Separate Development Parcel thereof . It is understood that Developer' s entering into a management uontract or contracts and a franchise agreement or agreements to operate any of the hotels to be constructed on the Site shall not be classified as an assignment for purposes of this Agreement ; the Ag3ncy' ss right to review and approve the hotel operator(s) and franchisor(s) zhall be as set forth in Sections 205 and 206 below. Notwithstanding any other provision of this Agreement to the contrary, Agency approval of an assign- ment of this Agreement or any interest herein shall not be required in connection with any of the following: -4 da 08/%5/88 FINAL 5 R ( i.) Any transfQrs to any ent +.ty or .:ntiti>rs in which either the beveloper or Robert L. Mayer retains a minimum of fifty-one percent ( 51.% , of the ownership or bene- ficial interest and retains manageir,ert i control . Tranufors resulting from the death or mental or physical incapacity of an individual (i.ii) Tran_-`ers or assignments in trust fr.r the henetir of a spouse , children, grand- children, or other family members , provided that the Devcloper or an assignee of Developer specifically permitted hereunder retains management control . (iv) A sale of the Site or any Separate Development Marcel at foreclosure (or a conveyance thereof in lieu of a fore- closure) pursuant to a foreclosure thereof by a lender approved (or deemed approved) by the Agency in accordance W ' th this Section 107 . (v) The conveyance or dedication of any portion of the Site to the City or other appropriate governmental agency, or the granting of easements or permits to facilitate the da3velop%ment of the Site . (vi) The leasing of any part or parts of a building or structure for occupancy in the normal course of owning and operating the project (and excepting each hotel operator which trust be approved in accordance with Section 205) . (vii) A transfer of ,stock :n a publicly held corporation or than transfer of the beneficial interest in any publicly held partnership or real estate investment trust. _ (Viii) The subdivision and conveyance of individual hotel units in a Separate Development i,arcel on the Site for purposes of financing the development, maintenance, and/or operation of a hotel. on such parcel in accordance with this w�AY +i + 08/13/88 FINAL a I Agreement , provided tl-' at : (A) the subdivision of ii Separate nevalopn�ent Parcel into commercial condominium units shall not allow the occupancy of hotel rooms for any Lisu other tnan as individual transient-occupancy hotel Coons ; and (B) commerc;.al :ordomi niuri units shall not be subclivided or conveyed ELL 4i time-share or time-share i.nterent in an individual hotel unit (as those terms are defined in California Husincss & Professions Code S,:!cti on 11003 . 5, as the same now exists or may her after be emended) , aims-shares and time-shar:incr arrangement, being strictly pz oh ibited hereby; provided, however, that it is understood and agreed that any method of financing allowing the owner of a condominiun hotel unit to occupy such unit for a period or periods not to exceed the greater of two (2) weeks per year or ton percen"C (10%) of the number of days per year that the uni.t is occupied by hotel guests shall not bo rteemed to be a tine-share arrangement. The Develcrbar shall deliver written notice to the Agency requesting approval of any assignment requiring Agoncy approval hereunder. Such noticar shall be accompanied by sufficient information regarding the proposed assignce' s development quaff ificatir�nn and experience and its financial. commitments and resourceu to en.ble the Agency to evaluate the proposed assignee pursuant to the criteria set forth undez. (ii) and (ii.i) of the first paragraph cf this Section 107 . Such information shall include, without limitation , a balance sheet of the proposed assignee as of a date within ninety (90) days ,-if the request for Aaancyls consent and statements of income or profit and loss of the proposed assignee for the two-year period preceding the request for Agency's consent, if the same be available (or such other similar information as shall be available at the time the request for approval if the assignment is made) , and .a written statement in reasonable detail as to the business experience of the proposed assignee during the five (5) ye6rs preceding the requesgt for .Agency's coissent. Within thirty (30) days after receipt of the Devoloper'n written notice requesting Agency approval of an assigtnuaent, the Agency shall respond in writings by stating ghat further infomation, if any, the Agency reasonably requirom in girder to evainate those matters it is entitled to consider in determining whather or not to approve the } 06/15/80 FINAL reque tod assignment. Upon receipt of such a timely response , the n -. Eloper shall furnish to the. k:jency such further it r orniati_on ,is ar..It br, reasonably requested. The Aeveluppl" s reaoest for approval of an assignment for financing purposes shall be deemed complete twenty ( 20) days after th . Agency's receipt thereof and the Developer's request ifor approval of all other types rj:;- ass ignnents shall he dec-nod complate thirty ( 3 0) days a f tc :- the Agency' :i r e c eipt. thereof , if no timely ri:�sponsc requesting further information regarding the proposed assignee is delivered to %.he Deti.:loper, or, if such a timely response requesting further information Is received on the date that the Developer delivers such additional information to the .,gel--V- once the Developer' s request: for approval of an assignments has been accepted as or is deened complete, the Agency shall not be entitled to demand additional information or to disapprove: the assignme;it on the basis that the Developer hay:. not furnished adequate or complete information. None of the fovegoing shall restrict Agency's rights to deny approval of any assignment not found acceptable by Agen:y pursuant to this Agreement. Any assignment requiring Agency's co:sent shall only be effective upoi, Agency's written consent to such assignment. The Agency shall approve or disapprove a rec►uested assignment for financing purposcs requiring Agency approval within thirty (30) days after the Developer's request therefor is accepted as complete or is deemed complete and the Agency shall approve or disapprove any other reque3ted assignment requiring Agency approval within forty-- five (45) days after thn Developer' s request therefor is accepted as complete or is deemed complete . Any disapproval shall be in writing a,zd shall specify the reasons for the disapproval and, if applicuble. the conditions required to be satisfied by the Developer i.n order to obtain approval . If the Developer's initial nv :ices requesting approval of an assignment for financing purposes (but not any other type of assignment) complies with the requirements of Section 705 below, the Agency' s failure to timely disapprove such a request for assignment shall be conclusively deamed to constitute an approval . No assignment of the Developer' s obliga- tions with respect to the Site or a Separate Development Parcel thereof, whether or not Agency approval is required therefor (but specifically exciuding assignments for financing purposcs, and those typetti of assignments identified in et<bparagraphs (iv) ,, (v) , (vi) , (vi.i) , and (vi.ii) ) , shall be effective unless and until the proposed assignee executes and deliverp to the Agency an agreement in form reasonably satisfactory to the Agency's attornay ammuming the w /- 08/15/88 FINAL Obligations of the Dovel.oper which have been assigned . Therea _ter, the asstgrzor i!all remain: responsible to the Agency for performance, o:: the obl3gat-Ions assumed by the assignoro uol-ess ( i) Agency releases the assignor in writing or ( i ;.) all of the requirements set forth in this Section 107 are fully satisfied and the assignor is nc t then in default undar this Agreement., in which event the assignor shall remain rho,pon,_ib1e t.) Ageric: , for pera;ormance of the obligations a.rl.sing prior to the effective date of the assignment , and shall be r,-�,:iaased from any obligation or liability ar:i3ing subsequent to the effective date of the aignment . No consent or approval by Agency of any assignment requiring Agency' s approval i:tihall constitute a further t,aivP:: of the provisions of this Secticn 107 . In then event of a dispute between the Agency and Developer arising out of an Agency disapproval hereunder,. stich dispute shall be resolved by arbitration in ' acccrdance with Section 611 herein. The restri.tiorts of this Section 107 shall terminate upon issuance by the ,Agency of a Certificate of Car►+plati.on for the entire redevelopment of the Site or, as to each Separate Development Parcel , Ripon issuance by the Agency of a Certificate of Completion W,.: respect to said. parcel . II. [ §200 ] TASKS TO M. ACCOMPLISHED PRIOR TO DISPOSITION TRANSFERS A. [§201.] A!aency . AG�i..eition of c:iiml S Interest in Site; Revised Lease coverinq Developer Jar.cei Acciu s ton of Ramairr .n- r. Properi:y Intereats in the S tc Pcmired for D�opment - --- _.... �._._-- 1. As of the Effective Date of :his Agree- ment, the City owns fee simple title to the ontiare Site. on or bof.ore the Effective Cate, the Agency ind City have entered into an agreement (hereinafter the "City-tgency Agreement") pursuant to which the Agency *rill acquire from the City each of the Separate development Parcels within the Site in tiiye for Agency to convey said parcels to rAvelope:r in accordance with this Agreement. The City-Agency Agreement providas for the City to convey to Agency all of the City's ' rightr title, and interest in and to such parcels, including all improvements on the Site which are owned by the city, excepting only: -e- OS/XS/6S MAL wrr 1 w 1 ( i ) the City' s interest in 011 , CJ4s , hydrocar5on substances , and minerals of cvFry kind an ! �haract~er lyi ncT more than 500 feet below the surface , together with the right to drill '.nto, through, and to use and accupy all parts oO the Site lying more than 500 fee,: below the surface thereof for any and all purposes incident:it to the exploration for end pioduution of oil , gas, hydrocarbon substances , or minerals from said Site or from other lanes, but without, however, any right to use Dither the surface of ',*.he Site or any portion thereof within 500 feet of the surface for any purpose or purposes whatever; and any and all water, water rights or int_ar•ests therein, no matter how ecquired by the City, -together with the right and power to explore, drill , redrill , remove, and store the saine from the. Sit,3 or to divert or otherwise utili7.e such water, water iighhs, or interests on any other property owned or leased bl► the City, whether such water right: shall be riparian, overlying, appropriative, percolating, littoral, pres-riptive , adjudicated, statutory, or contractual ; but without, however, any right to enter upon the surface of the Site in the exercise of such rights and, provided f'ux•4har, that the exercise of any such rights by the City shall not result in any damage or injury to any improvements constructed on the Site, including without limitation any subsidence of all or any part of the Developer Improvements to be constructed pursuant to this Agreement. Agency shall take a.'1 actions on Agency's part which are r acpUred to be taken to acquire each such Separate - Development Parcel within the times set forth in the Schedule of performance (Attachment No. 4 ) . � .� The Agency and developer agree that in order to implement. this ,Agreement and develop the Site, within the times set forth in the Schedule of Performance (Attachment No. 4 ) , either the Agency or Developer, or both 02 thomq will have to acquire and tersinate+ all of the property interests its the Site other than those of the City, Agency , and developer as provided here-in ( or said interests will have to expire or terminate by vheir own terms) , so that at the time of the "Dispooition Transfer" of each Separalte Development Parcel referenced in Article III below, title to such yepara,-e Development Parcel will be jested in the agency Laub j ect only to the City's reserved subsurface m?.neral and water r::ghts ref. �!renced above, this ,agreement, the Devel. ope:' s rights and interest in such parcel as provided her.^in thefollowing approved exceptions to title (to the extent such exceptions apply to such Separate Development Parce.L) , and ,such other exceptions to title as hereafter may be mutually approved by V.ie Agency and Developer (hereinafter the "Approved Title Exceptions") : Exception Nos: 1 (as to then-,current taxes and assessments) , 2 , 61 7 , and 9 in Schedule B, .:section 2 , Part II of that certain Commitment for Title Insurance dated December 8 , 1986 , as supplemented on January 23 , 1987 , and March 27 , 1987 , issued by First American 'Title Insurance Company covering the Developer Parcei (OR-1455792') , a copy of which document is attached hereto as Attachment No . 8 (the "Preliminary Title Report for the Developer Parcel") . Agency and Developer agree not to enter into any lease, sublease , restrictive covenant, or other agreement nor to modify or amend any existing such agreement which agreement, modification, or amendment could prevent, delay, or impair the parties' mutual objective to acquire and maintain title to the Site subject to only the Approved Title Exceptions; provided, however, that nothing herein is .intended to prevent the Agency or Developer from entering into agreements with respect to the Site consistent with the purposes of this Agreement. In addition to the foregotrig, tha Agency and Developer each understand that, while thi- Agreement is not intended to commit the Agency to exercise its power of eminent domain (sea paragraph 4 below) , in order to implement this Agreement and develop the Site, within the tires set forth in than Schedule of Performance (Atc-achment No. 4) , AKjer,oy wig,' have to acquire and terminate all of the property interests in that portion of the adjacent Pacific Mobilehome Park property which must be acquired in order to accommodate (i) the planned extension of walnut Avenue: from its existing terminus at Huntington Street through -the Site to Beach Boulevard and (i.i) the planned extension of certain public utilities (including without limitation a domestic water line) to the Site along the Walnut Avsnue right-of-wary. 2. Except as specifically set forth in paragraph 3 below, and subject to the Agency's raserved dincsration with respect to deciding whether to exercise its power of eminent domain, as provided in paragraph 4 below, a8/1�/11� FINAL f. \ the Agency shall exercise its best cffortrz .-o cause to bc: removed of rocord and -to ttzrmina to all of. the property interests/occupancies in the Site , other :han those: interests /occupancies ref.leoted In the Approved Title Except ior,s , cind all interests/occupancies in than portion of the adjacent Pacific Mob.ilehome Park property .%hich must be acquired and terminated in order to ac clommodate the planned extensio-ns of Walnut Avenue and utilities Uirough the Site . Prior to the scheduled date for the Dispoo tion Transfer of the _•irst Separata Development Parcel on whj.ch the oil pipeline is located, ;which pipeline is reflec- ted in Ex^,eption No. 4 as shown in Schedule B, Sect'ior. 2 , Part II of the Prelininary 'title Report for the Del►eloper Parcel , thn Agency shall exercise its hest efforts to cause u.atd property interest to be terminated and removed of record end Eaid oil pipeline to be relocated from the Site , at no expense to tha Developer. Prior to the scheduled date for. the Disposition 'Transfer of the first Separate Development Parcel including all or. any portion of the City Beach Maintenance Facility Parcel, the Agency shall exercise its best efforts to cause the property interest reflected in rxc:eption No. 5 as shown in Schedule D, Section 2 , Pz.rt II of the Preliminary Title Raport for the Developer Parcel to be terminated and removed of record, at no exper Se to ;.tie Developer. The Agency shall exercise it.5 best effogis to negotiate the acquisition and termination of all of the property interests/occupancies to be acquired and terminated by the Ager.cy within the times set forth in the Schedule of Performance (Attachment No . 4) . In addition, tl,-? Agency agrees to pw_r� orm all of its obl igar_ions under the Mobi.lehome Acquisition_ and Relocati-::n Agreement attached '•.o the Relocation Assistance Plan, referenced in Section 201 below in order to timely remove and relocate tenants and occupants from the Driftwood Mobilehome Park or. the Developer Parcel . k inally, in the event that, after and despite its best efforts, the Developer is unable to acquire and terminate any of the property interests/occupancies in the Site which are the DevRloper' s responsibility, pursuant to paragraph 3 bQ! :.)w, the Agency agrees to consider acquiring and terminating such interests/occupanci.es through exercise -- of the Agency's power of eminent domain, in accordance with parragrapL 4 below, provided that all costs and expenses of the Agency in such regard shall be advancod by and the full responsibility of the Developer. 3 . The Developer agrees to exercise itA best efforts to cause the following exceptions to title sh ern in Schedule B. Section 2, '?art 11 of the Preliminary Title Report for the Developer Parcel to be removed of record and terminated prior to the Dispaaiti.on Transfer of the first -y Separate Development Parcel with respect to which each such exception applies: Exception Nee. Bf 13 , 14 , 15, 17, midi ld. The Developer further Degrees to perform all of its -ll- 1. w t i obligar ioTir; unclog the Relocation Assistance Plan referencad in Section 203 and the 11obilehome Fcquisition and Relocation Agreement attuched thereto in order to ansist the Agency in timely removing and relocating tenants and occupants from the Driftwood Mobil ehorne Park on the Developer Parcel. . Finally, the Developer shall have the responsibility for terminating any of the property interests/occupancies with respc:w` to the DevclouWr Parcel not specifically referenced herein which interests/ occupancies mus`_ be acquired Znd terminated in order that: title to Bach Separate Development Parcel will be subject to only the Approved Title Exceptions at the time of thn Disposition Transfer thereof and which interests/ oco.tpancie:s were or are created by the, Developer or any person or entity claiming under the Developer or any pre: enessor-i.n-interc .t to the Developer's leasehold interest in the Developer Parcel at any time subsequent to January 9 , 1961.. In the event that the Developer is unable, after and despite its best oftorts , to ucqutre and terminate any of the aforedescribed interests/occupancies which are the Developer's responsibility hereunder, the Developer shall promptly so notify the Agency, which sliall then consider acquiring and terminating such interests/occ:,upancies through exercise of its power of eminent domain, in accordance with y paragraph 4 below, provided that all coats and expenses incuzred by the Agency for acquiring and terit:inating those exceptions to title which are the developer's responsibility hereunder shall be advanced and paid for by the Developer. 4 . If, after and despite its exercise of best, efforts to do so, the hgency is unable to negotiate the acquisition and termination of all cif the property iztezests/occupancies in the Site and the Pacific Mobilehome Park property which are its responsibility under paragraph 2 , or if, after and despite the Developer's exercis, of best efforts to do so, the Developer is unable to acquire and. terminatro all cf the property interests/occupancies in the Developer Parcel which aro its responsibility under paragraph 3. And the Developer so :,atifies the Agency, all within the applicable times set forth in the Schedule of Performance, the Agency shall determine, in it3 sole discretion, whether to acquire the remaining unacquired property i.ntereuts/ occupancies by exercise of its power of eminent domain. If the Agency elect® to exercise its power of eminent domain, such election shall be made and the eminent domain action (s) shall be filed within the applicable times set: forth in the Schedule of Performance; provided, th:;t nothing in this Agreement: shall be deemed to ,onstitute a commitment by the Agency to condemn property or ik prejudgment of the ma., . '.,ors required to be considered as part of any decision to condemn y property. Upon Agency accriisi.tion of any of the unacquired property intereste/oceuparicies, the Agency and Developer agree that said property interests/occupaMncien shall be I 08/19/88 1PIN 1L tecmina1*vd, and the Agency and Developer shall cooperate and execute any docurekit!-i required to remove said property interests of record . In the -vc:rit that the lkgency axercises its power of eminent domain tc acquire any of the unac quired property interests in the Si:e or the Pacific Mobilehome Pack property, the Agency shall , subject to delays outside the Agencyla reasonable control , exercise bes:. efforts to complete the acquisition of (and germinate) such property interests/occuparciew as .goon as possible after the commencement of eminent donm.in. proceedings. In thF, event that the Agency oxercises its power of emine-nt domain to acquire any or all of the unacq*.aired property interests/occupancies in the Site or the Pacific MoW.ehome Park property, the Agency shall , upon the Developer 's writtan request, exercise its rest, efforts to obtain a judicial order or orders (hereinafter "Order of. Pre judg pnt: Possession") authorizing the Agency to takes possess ion of the prenAses prior to th,u f iucal order (s) of condemnation. Notw: thratanding any other provision this Agreement to the contrary, if, at any time prior to the Agencyrs acquisiti.on and termination of all of the property interests/occupancies to be acquired in a Separate Development Parcel , the Agency provides to the Developer a copy of an Order or Ordern of Pre juda;nent Possession, and : (i) The Agency deliver- possession of the premises; and (ii) The Agency is diligently proceeding with the eminent domain action(s) seeking the rendering of a. final judgment, which judgment would authorize the taking, and then .�ge-,cy agrees to 'terminate the applicable property interest/occupancy when Agency completes the acquisition thereof; and (iii.) The right of possession conveyed by the Agency to the Developer is sufficient to ana►ble the Developer to obtain a title insurance policy as necessary to close its construction and permanent roans for they development of the Saparnto Develop- ment Parcel in question; then, the Developer shall accept such right of possession and procesd with the development of such Separate Development Pore*!, with the dates of transf®r of poss4asion from the Agency to the Developer treated the same as they date of the 06/15/68 FINAL u 0 ,f r� ! � I �i w Disposition Transfer (as defined in Section 301) for purposes of trio Developer ' s obligation to proceed with and complete canst;ruc-t{on with ro-nect to said Separate Development Parcel . Upon the req-aest ..if the "Tithe Comparty" , as that term is defined in section 310 below, the Agency shall execute an indemnification agreement in form sat;i.s-, faccoiy to such title con--limy and reasonably satisfactory to the Agency by which. ::he Agelicy shall agree to indemnify the Title Company for any losses , damages and expenses incurred i by the Title Company in the event of the Agency's abandonment of the eminent domain proceedings . In this regard, the aiveloper agrees in t"rn to indemnify, defend, and Bold the Agency harmless if Agency's abandonment is justified because � of a default by the Developer hereunder. Nothing herein shall be deemed to obligate t .e Agency to pay for any additional premium or other charge necessary for the issuance of said title policy. In the ravent that the Title Company dec;lii',es tc issue a title insurance Policy under such circumstances , the Developer's obligation to commence and vamplete the construction with respect to the applicable Separate Development Parcel. shall not commenco to run until the property :iiitererst•/occupancy is acquired and terminated and title to the applicable Separates Development parcel can be vested in the Developer (fee title if in the Residential Portion, leasehold title it in the commercial Portion) in aicaordance with Section 201 . 1 above and Article. III below. 5 . Notwithstanding any other provision of this Agreement to the contrary, in the event that the City, Agency, and Developer are unable to acquire and tezminate all of the property interests/occupancies needed to obtain title to a Separate Development Parcel subjee�.t only to 'Che Approved Title Exceptions 7.i4ted in Section 201 . 1 and/or title to the portion of the Pacific Mobilehome Park property required to a,crcomodate the planned extension of Walnut Avenua, the parti*A shall negotiate in good fa{th regarding a potential revision to the development plans required to be approved by +� the City and Agency under Section 203 and any other provisions of this, Agreement which may haves to be amenc°ed in order to allow 'evelopment to proceed on the balance o s the -� Site or said Separate Development Parcel, as applicable. 6. The financial responsibility for acquiring and terminating property interests/oecupanciev and relocating occupants from the Site and from the portion of fhe Facifif; Mobilshome Park pror:erty which is to be acquired pursuant to this Section 201 shall be allocated between the Agency r.nd Developev as referenced in paragraphs 2 and 3 abovo and as set forth in the "Method of Ff tit nei.ng" (Attachment No. ;i) . 'i 14 09/15/8 5 FINAL j 1 1 1. 1 1' �If 1 ; . On or before the Effective Date of this Agreement, the City and Developer have entered into a revised pease covering the Developer Parcel in the form atthchecl hereto are Attachment. No. 6 (hersinafter the "Lease" ) . 8 . Cn or before the Effective Date of this Agreement, the City and Developer have entered into a V'Develcpment Agreement" with respect to the Site . The Development Agreement is attached to thi.a Agreement as Attachment No. 9. h. [§2 02 ) =,eeerved C. [ 6203 ] Plan Submittals and Reviews Prior to or concurrently with the Ef f set its e Date of this Agreement, the City has issued the following approvals for the development of the Site: (i) approval. of the "Master Site Plan" for. the Commercial Porltion of the Site (which consists of the apl.licable portions of the "Technical Site Ilan, Project Description, and Site Statistics" which is attached as Exhibit 1 to the Scope of Development (Attachment No . 33 ) ; (li) approval of the "change of use" of the existing mobilehome park on the Developer Parcel. (including without limitation the removal of the "M-F: Overlay Zone" therefrom [Zone Change 110 . 87-7] and approval of the Impact of C,onversion Report and Relocation Assistance Flan therefor) ; (,ii) Conditional Use Permit No. 87-7 and Coastal. Development Permit No. 87--1 for the Phase 1 hotel ; ( iv) approval of any "special permits" for deviation frorn normal development standards or requirements for the Phase 1 hotel ; and (v) Tentative Tract Map No. 13045 for the Phase 1 hotel . The. Agency has specifically approved the development of the Phase 1 hotel as reflected in the conditional usQ permit and coastal development parmit approved by the City. In addition to the foregoing approvals, the Developer recognizes th it its right to develop each Separate Development parcel within the Site pursuant to this Agreement is subject to obtaining the following additional, specific discretionary land use permits W ; from the City with respect to such Separate Development Parcel = (i) a 'Conceptual Plan" for the Separate Development Paxoslsa in the Residential portion; (ii) except as to the Separate Development Parcel covering the Phase 1 hotel , a Aµ conditional use permi•-: or permits and a coastal development permit or permits; ;iii) a "special permit" for any requested deviations from nor'oal development standards and require- m-snta= ( iv) a -dpt as to the Separate Development parcel rrnves.1ing the Phosle 1 hot�Yl , a parcel or tract map for the cone lidetiones/divisionts of the existing parcels within the Site to create such Separate Development Parcel; and (v) as to the Separate Development Pa i:.;*' (s) on which the wetlands iftntified in the Clty's Downtown specific Plan is (are) _15- 06/15/89 FINAL Y ' i i } } 1 I 1 located , approval of wetlands mitigation in accordance with thee Coastal Element of the City' s General Plan and the Dovnto% n Specific Plan. The Developer further recognizes that the Agency shall have the right of architectural and planting review of all such plans and submittals , ;including any requested changes in plans and submittals after the same nave bean approved. Notwithstanding any other provision of this Agreement to the contrary, nothing in this Agreement shall be deemed to constitute a commitment by the Ardency to approve any such plans or permits or a prejudgment of the matters required to be considered when the Developer applies for such approvals . Within the times set forth in the schedule of Performance (Attachment No. 4) , the Developer shall prepare and subrit to the Agency and r .ty an application for the applicable discretionary development permits as referenced above whit:.: are required for each Separate Development Parcel, together with all documents , plans , and drawings normally recuired by the City/,Agency for such application. Subject to tip- next: succeeding sentence hereinbelow; each such submittal shall he co.'19Astent wi;:h the previously issued development approvals referenced above , the Scope of Development (Attachment No, 3) , and the Development Agreement (Attachment No. 9) . Notwithstanding the foregoing, it is understood that Developer may ropiest approval of plans or permits which differ from such. previously approved items bused upon refinements in planning or changes in market or financial feasibility between the Effective Date and the time of actual development, provided that such plans shall in all events be consistent with the, Downtown Specific Plan and. other City General Plan and Zoning requirements app2.ic:abl a to the Site as of the Effective Date of this Agroement. The Agency agrees to act reasonably in reviewing any such request by the Developer nase:d upon legitimate land use planning concerns and any effect that changeo in the scope of the development may have on the justification for the Agency's financial contributions thereto (as reflected in the $cop . of Development (Attachment No. 3 ) and the Method of Financing (Attachment No. 5) ) . In the event of any inconsistency or conflict between the approved plans and this Agreement, including without, limitation they scope of development, the approved plans shall govern. In the event Agency reasonably deteermine& that a change in the scope of development from w'%at is contemplated on the Effective Date warrants a modification' of the terms of the Agency's financial contribution (as reflected in the Scope of Devel opteent (AttachMent No. 3) and the: Method of Financing (Attachment No. 3) ) , ]Agency agrees to consider making any amendments to this Agreement n*cessary to accommodate such change. 08/15/86 y1NAL h , With specific regard to tht, Fesidential Fortion of the Site, the Developer and Agency each recognize that, the Developer is required to obtain City approval of a Conceptual Site 'Plar� for the Residential portion prior to approval of any conditional use permit for residential development, in accordance with Section 4 . 10 . 02 of the Downtown Specific Plan . The Developer and Agency hereby agree thht that Conceptual Residential Phasing Exhibit (attached to the Scope of Development [Attachment No. 3] as Exhibit 2) is provided by the Developer for informational purposes only to allow the City and Agency to analyze the nature of the planned development of the Residential Portion. During the preparation of all drawings and p1r, • , otaff of the Agency and the Developer shall hold regular progvess meetings as needed to coordinate the preparation and review of such items . T-ie staff of the Agency and Developer shall communicate and consult informally as frequently ass is necessary to ensure that the forma. submittal of any documents to the City and Agency can receive: prompt and speedy consideration . Provided that the submittals by the Developer are ct:implete , the Agency shall approve or disapprove and shall nxercise reasonable diligence co cause the City to expeditiouslyapprove or disapprove the applications within the times established in the Schedule of Per foxzr.ance (Attachment: Wo. 4 ) . The Agency shall .review all of the Developer"s applications, Flags, permits, and related documents in accordance with the Development Agreement (Attachnent No. 9) . No plan, permit, or approval required for the development of the Project shall be revoked or subsequently disapproved once issued by the Agency provided that the development is consistent with the plan, permit, or approval . Any disapproval by the Agency shall state in writing the reasons for disapproval . The Developer, upon receipt of - disapproval , shall revise the disapproved portions of its plans or drawings and resubmit to the City or Agency, as a►pplicr•ble, as soon as possible after receipt of _W the notice of disapproval as providea in the schedule of Performance* If the Developer desires to make any sub- stantial change in any of the plans after their approval by the City or Agency, whether before or after the Disposition j Tranaf es referenced in Article III of this Agreement, the ..� Developer shall submit the proposed change to the City and Agency for approval . The processing, review, and approval of any sucb reviaed submittal chall be subject to the same provisions as are *at forth above for the initial submittal . i Ow � 27- ` 05/l5/88 FINAL S { I l 4 Within the times set forth therefor in the Schedule of Performance (Attachrr{ent No. 4 ) , the Developer d shall prepare and submit to the City final, building plans and/or construction dA:,awings with respect to all of the r Developer Improvements to be constructed cn ea.ch Separate Develooment Parcel and with respect to all public improvements or utilities to be designed or c(.-instructed by the Developer with respect to such phase of development, in sus'fi.cient detail to obtain a building or const-Vuct.ion permit or permits . said submittals shall be consistent with all previously approved plans for the worn in question . The Agency shall exercise reasonable diligenc.3 to cause the City to expeditiously conplete its review of the final building plans and/or construction drawings within the times established in the Schedule of Performance, and to approve such plans or drawings and issue appropriate building, construction, and encroachment permits t)lerefor , as applicable, provided that the Developer has complied with all applicable codes and if such plans or drawings are not inconsistent with applicable provisions of all previcyus>ly Iapproved plans and permits . D. [§204 ] Submittal of Evidence of Financing commitments within the times set forth in the Schedule of Performance (Attachment. No. 4) , the Developer shall exercise reasonable diligence to obtain and, if successful , shall Submit to the Agency evidence reasonably satisfactory to the Agency that the Developer has ob•ttained the financing neces- sary for the development of each Separate Development Parcel in accordance with this Agreement. Such evidence of financing shall Include the following; a. A copy of the cormitment or commit- ments obtained by the Developer for the mortgage loan or loans (both for interin. construction financing and taka out financing) to assist in financing th• construction cf the "Developer Improvements" (as defined in the Scope of Development, Attach- ment No. 3) on such separate Development Parcel, cairtifiad by the Developer to be a true and correct copy or copies thereof. The cormit- vents for financing shall be in such. form and content acceptable to the Executive Director as rea3onably evidences a firm and enforceable J 08/3S/88 FINAL f commitment, with only those conditions which are standard or typical for the lander (s) involved for similar projects ; and b . Sufficient information (a. an annual report) regarding the construction and permanent lenders to enable the Executive Director to determine whether or not such lander(s) has (have) sufficient financial resources to fund the loan (s) ; and c. A financial statement and/or other documentation satisfactory to the Executive Director as evidence of other sources c%fi capital sufficient to demonstrate the Dave:lopar. has ' adequate fund: committed to cover the difference , if any, between construction and development cost minus financing authorized by mortgage loans ; and d . A copy of the contract between the Developer and the general contractor (s) for the ronst'.ructlon of the Developer Improvements on such Separate Development Parcel , certif ioad by the *Developer to be a true anti correct copy thereof . Within twenty ( 20) days of the Developer's request: for approval of its evidence of financing, the Agency shall respond in +rritirng by stating what further information, if any, the Agency reasonably requires in ordfir to determine whether or not to approve such evidence of financing. Upon receipt of such a tinely response, they Developer shall promptly furnish to the Agency such further information as may be reasonably requested. The Developer' s request for approval of its evidence of financing shall be deemed complete twenty (20) days rafter the Agency' s receipt thereof, if no timely respona•va requosting further Information is delivered to the Davelopear, or, if such a timely response requesting further information is received, on the date the Developer delivers such additional information to the Agency (provided that Developor's additional information is responsive to Agency's request) . once the Developer' s request for approval of its evidence of financing has beer accepted as complete or is 08/1.S/6 8 FINAL deemed complete, the Agency shall not be entitled to demand additional information or to disapprove the request on the basis that the Developer has not furnished ade,;aate c, complete information . The Agency shall approve or di•.cnpprove evidence of financing within thirty (30) days r.fter the Developer's request for such approval is accepted as complete or is doomed complete. If the Developer ' s initial requost for approval of its evidence of financing complies with the requirements of Section 705 below, the failure of the Agency • to approve or disapprovr. such evidence of financing within such times shall be conclusively deemed an approval . If the Agency shall disapprove any such evidence of financing, the Agency shall do so by written notice to the Developer stating the reasons for such disapproval . In the event of a dispute between the Agency and Developer arising out or an Agency disapproval hereunder, such di.6pute shall be resolved by arbitration in accordance with Section 613. herein. E . ( § 205) ApEroval of Hote3 porators on or before the Effective Date of this Agreement, the Agency has approved Signet Hotel corporation of Dallas, Texas, as the operator of the Phase 1. hotel . As to each other Separate Development Parcel on which a hotel is to be constructed ( i . e . , Separate Development Parcel Nos. 3 , 4 , and 6) . within the tine set forth in the Schedule of Performance (Attachment No. 4 ) ; the Develcper shall exercise reasonable diligence to obtain and, it successful , shall submit. to the Agency evidence reasonably satisfactory to the Agency that the Developer: has entered into a fiiin and enforceable agreement with ;% qualified operator to manage the hotel for a period of not less than five (5) years after the opening of the hotel for business. Within thirty (30) (,� ys after re.:eipt of the Developer's request for approval L a hotel operator, the Agency shall respond in writing by stating what further information, if any, the Agency reasonably requires in order to determine whether or not to approve such hotel operator, Upon rcceipt of such a timely response, the Developer shall promptly furnir:h to the Agency such further information as may be reasonably requested . The Dsveloper's request for approval of A hotel operator shall be deemed complete thirty (30) days after the Agency,'s receipt thereof, if no timely response requesting further information is delivered to the Developer, or, it such a timely response requesting further information -20- 08Jls/88 FINAL f is received, on the date that the Develo,l7er delivers ,such additional infozmaticr. to the ,Agency (provided that Developer's Additions! information is responsive to Agency' s request) . Once the Developer' s request for approval of a hotel operator has been accepted as complete or is deemed complete, the Agency shall not be entitled to demand additional information or to disapprove the request on the basis that the Developer: has not furnished adequate or complete information. The agency shall approve or disapprove each !� such hotel operator within forty-five (45) days after the Developer's request for such approval is accepted as complete or is deemed complete. Approval will. not be unreasonably withheld and shall be given if thn Developer demonstrates that the proposed operator is a capable , competent , and experienced operator of hotels similar in quality, sine and type as set forth in the Scope of Development . If the Agency !shall disapprove a hotel operator, the Agency shall do so by written notice to the Developer statin,r the reasons for such disapproval . Notwithstanding any other provision of this DDA 'co the contrary, in the event the Developer assigns its rights with respect: to any Separate Development Parcel on which a hotel is to be constructed to an entity which meets the qualifications set .forth above for an approved hotel operator, nothing in this DDA shall be interpreted to prevent the assignee from operating and managing the hotel itself (without the need for a :separate operating agreement) . In the event of a dispute between the Agency and Developer arising out of an Agency disapproval hereunder, such dispute shall be resolved by arbitration in accordance with Section 611 herein . F. [ 1206 ] Approval of Hotel Franchisors on or before the Effective Date of this Agreement, the Agency has approved Hilton Hotel Corporaticn of Lois Angeles, California, as the franchisor for thir phase 1. hotel . As to each other Separate Development Parcel on which a hotel is to constructed (i.e. , Separate Dove'elopmeant Parcel Now. 3 , 4 , and f) , wi.shin the tine set forth in the Schedule of Performance (Attachment. No. 4 ) , tho Developer shall exercise reasonable diligence to obtain and, if successful , shall submit to the Agency evidence reasonably satisfactory to the Aelenczy that the Developer has entered into a firm and acrfeorcea►ble agreement with a qualified hotel franchisor rT, peraeitting the hotel to be orerated under said frmnch isox's na.se, and with access to such franchisor's natior;al advartising and reser a t i one system, for a period of not Less { _2 1- ' 08/15/88 FINAL fr � J � w than tan ( 10) years after the opening of the hotel for business . Within thirty (30) days after receipt of the Developers request; for approval of a hotel franchisor, the Agency shall respond in -driting by stating what further- information, if any, the Agency runsonably requires in order to determine whether or not to approve such hotel franchisor, Upon receipt of such a timely response, the Developer shall promptly furnish to the Agency such further information ar- may be rep. onably requested . The Developer' s request .for approval of a hotel franchisor shall be deemed complete thirty (30) days after the Agency's receipt thereof , if no timely response requesting further information is delivered to the Developer, or, if such a timely response requesting further infonnat:ion Is rec:e'ved, on the date that the Developer delivers such aCdition al information to the Agency. Once the Developer's roque5t for approval of a hotel franchisor hag been accepted as complete or is deemed c;omplat:e, the Agency shall not be i entitled to demand additional information or to disapprove: request on the basis, that the Developer has not: fur.nis-hed adecriates or complete information The Agency shall, approve cr disapprove each such hotel franchisor within forty-five (45) days after the Developer's request for such approval is accepted as complete or is deemed complete. Approval will not be unreasonably withheld and shall be diver: if the Developer demonstrates that the proposed franchiso.,: is a capable, competent , and axperienc:e d. franchisor of hotels similar in quality, size, and type as set forth in the scope of Development and meeting the requirements of a "First-Class Hotel" franchliksor as that terra is defined in Section 7 . 1 of Exhibit "B" to the Lease attached hereto as Attachment No. 6 . If the Agency shall disapprove a proposed hctel franchisor, the Agency shall do so by writta:n notice to the Developer stating the reasons for ..� such disapproval . Notwithstanding any othar prevision of this Agreement to the contrary, in the evotit the Developer assigns � its rights with respect to :, Separate Development parcel to an entity which meets the qualifications set forth above for ail approved hotel. franchisar , nothing in thin Agreement shall be interpreted to prevent the assignee from operating and managing the hotel ;itself (without the need for a separate franchise agreement) . In the event of a dispute between the Agency and Dervolopor arising out of an Agency disapproval hereunder, such disputer shall be resolved by arbitration in accordance � with Section 611 herein. _22w a . x dMIft 1 DISPOSITION TRANSFERS �►. [g301] Disposition TransfersF General Subject to all of the other terms and condi- tions set forth. in this Agreement , withir. the timer set forth in the Schedule of Performance (Attachment No . 4) : ( i) the Agency and Developer agree to execute and enter into a new lease with respect to each Separate Development Parcel in the commercial Portion. Each ouch lease shall be in the Form off' the lapse set forth in Attachment, No. F hereto, with J the applicable revisions as set fortis in 1�1 Snct;ion 1 . 11 and Exhibit "B" thereto. The Agency agrees to sell to the a Developer and the Developer agrees to purc,hasF from the Agency each of the Separate Development: Parcels in tha Residential Portion . The conveyances of the Separate Development Parcels in the Site from t-he Agency to the Developer as set forth in the precr_ding sentence are sometimes L .reinafter refer: �d to as the "Disposition Transfers . " The Developer shall deliver written notice to ww the Agency of 4tie Developer' s intent to schedule the Disposition Transfer of a Separate Development Parcel no later than eight (8) months prior to the schaiuled date �y therefor. Notwithstanding any ether provision of this Agreement to the contrary, and provided that- the Developer has timely complied with all its obligations hereunder• with respect to such matter, the Developer's obligation to close each Disposition Transfer shall be conditioned upon the satisfaction (or waiver by the Developer) of each of the following conditions precedent: (A the Developer anti/or the agency s tall have acquired and terminated all of ;ho property interests/occupancies to be acquired withim said Doparate Development Parcel such that title thereto is subject only to the Approvad Title Exception$ applicable to such parcel which are Listed cr referenced in Section 201 . 1 (or the Agency shall have obtained an order or orders for prejudgment -23- 08115/8$ r=MkL w-. possession meeting the requirements of Section 201 . n ,above for any remaining ' unacqui.red interests/occupancies) ; The Agency shall have acquired and terminated a1A of the property interests/occupanc.ies to be acquired on that portion t.3f the pacific Mobile,home Park property which must be acquired in order to accommodate the planned extension of Walnut Avenue and utilities to be located within the right-of-way for Walnut Avenue (or the Agency shall Have obtained an order or orders for prejudgment possession meeting the 4 requirements of Section 2.01 . 4 above for any remaining unacaui_red interests,/ occupancies) ; the Developer shall have obtained Agency and City a►ppreval of all plans (including final building pl.aris) for said Separate ,.� Development. Parcel required ;:o be approv- ed pursuant to Section 203 above, and the City shall be prepared to issue building perrnit-s at. the close of escrow; ( iv) the Agency shall have approved (or be deemed to have approved) the Developer's w� evidpnce of financing commitments for the develonniant of said Separate Developnent Parcel pursuant. to Section 204 above , (v} the Agency shall ha`VL approved the t:otel operator and franchisor as to each Separate Development hareel on which the ' Developer is required to construct a hotel, pursuant to Sections 205 and 206 above, aiE (vi) with respect to the Disposition Transfer of the first Separate Development Parcel on which ti:e oil pipelina reflected in Exception No. 4 to the Preliminary Title Report referenced in Section 20U. 1 of thin Agreement is located, the Ardency has caused such oil pipeline to be removed or relocated from the Site, in accordance with Paragraph III- B of the Scopes of Developuent (httachmert No. 3) ; -2 4- o6/2.5r88 FINAL r 1 (vii.) the City and Developer shall have entered into the amended Lease covering the Developer parcel (Soctio,, 201 . 7) and the Development Agreement. covering the Site (Section 201 . 8 and Attachment No . 9 ) ; , x (viii) the City and Agency shall have adopted the ordinances transferring from the City to the Agenr,y the authority to levy and collect; transient occupancy taxes securing ( iri part) the Agency's payment: olilic•_tions to the Developer under the Method of Financing (Attachment No . 3) ; (ix) the Aq.ency has complied with its obligations under Section 31.2 with regard to the physical condition of such i Separate Development part al ; (x) the Agency has not cleaned up or removed all 2:oxi.c and i:azardous substances on, under, or with respect to such Separate , . DrAvelapmnnt Parcel. in accordance v. Section 312 and. Paragraph III of the 3cope of Development (Attachment No. 3 ) ; (xi) with respect: to Separate Development Parcel No . 7 , the Agency :gas demolished and cleared therefrom the existing City beach maintenance facility ; (xii) there are no proceedings or litigation pendj1"q which do or could adversely affect the development- or use of said Separate Developmnent Parcel for the purposes identified or referenced in this Agreament or any of the development approvals referenced in section 203 above, except for pending eminent domain litigation in which valuation of property interests is the only contested issue, and further .�.,xcepting that it is understood that final building permits and permits for the om-Site improvements will not be issued and permits for the oaf-Site public improvements may not be issued until after the closing of oacrow, . (xiii) there are no actual or any pending or proposals for ordinances, roles, regulations, or ocher actions on the kart of any governmental body, department, or _20.5.. aS/15/Sl F3x.K, agency which would advoracly affect the development of said Separate Development Parcel ; (xiv) the Agency is not in material default of any of its obligations under this Agreement . Notwithstanding any other provision of this Agreement to the contrary, and provided that the Agency has timely complied with all of, its obligations hereunder with respect to such matter, the. :agency's obligation to close each Disposition Transfer shall be conditioned upon the satisfaction (or waiver by the Agency) of each of the following conditions precedent : (i) the Developer and/car the Agency sha .j_ have acquired and terminated all of '_'_c ' property interests/occupancies; to be acquired within said .Se3pa:;dte Development Parcel such that title thereto is sub j eUt only to -they Approved V.tle ExceptienEi applicable to ouch parcel which are listed or referenced in Suction 201. 1 (or the. Agency shall have obtained an order or orders L or pre j udg gent rossessien meeting the requirements of- Section 201 . 4 above cor any remaining unacquired interests./occupancies) The agency shall have acquired and terminated all of the property i.nt-erects/occupanciesa to be acquired on that portion of the Pacific Mobi,lehomle Park property which must be acquired in order to accommodate the planned 4� extension of Walnut Avenue and utilities to be :,ocated within the right-of-way for Walnut Avenue (or the Agency shall have obtained an order or orders for pre::j udgmeant posReession meeting the requirements of Section :01. 4 above for- any remaining unacquiree! interast:s/ �= occupancies) ; t ( iii? the Developer shall have obtained Agency and City approval of all plani (including final building plans) for said Separates Development Parcel required to be approv- ed pursuant to suction 202 nbove, and the City shall be prepared to issue building permits at the close of escrow; -26- 08/15/66 FINAL r the Agency ch ;?1 have aprrovrrl (cr be d<�eained to have appzo,4 ae?) the De elo1per0s - �;icif:rce of f.inanc i.rig ,;omtnitment-c? f o.r the of said -L3epc:,rate G)evel cp1neri: Parcel pa r. stiant. to f;,.-�.tion 2.04 ubuvc! ; (v) the Agency i;ha.L:;, py ove-6 t. 7c-z hc'cai uperi.tcr• and franc-bi.lor- as to each Separate Deire2apmerit Pa::•c el on which the Developer = required to con5truct: a Latel , pu.rsu;arit ,o sPc�-Jons i- rid 206 above ; (vi) it the AgenCy reason.-ably the CC)st:u raquirnd fr.r c;1.ean-iip or removal (-)f a11 tc_-:a.0 and hazz;--dous subotance:, 071, Under , cr witi', resper.+_ to such Separate. D,:-ve lopment P;:ircc7 exceed the Costs cam:nit t d by tho Agency pursuant to II;ect.ion 312 and Paragraph Ili o, tsar Slcopc or Dervcslopment (Attachment No. 3) ; {tri i) ttre nPe.r:• :i -. nriti-. ed to the cor:veyairr.+:, of i3ai.d Ser,ar at e Development Par.•r;l -Jr, a ccard- ace grit-h the p1la �J.ng schedulo set fort-hi in Section 31:: belu'v; and (v; U.) th � Devea lorr r :'t not in malte-ri al defa•alt o any o5: its obliga,::.crn", under this Agrea:ne:nt: (-provifted, that this condition rshal? no--'. ar•ply if and to tha extent: that: the c),(%-f au.It exists with res pact to -Another portion of the site which has previously been assigned by the Developer to an as3ignae: permitted under. Section 107 ei.bove) . Idot:hSnr in this section 301 is intended to limit or affect either partyas right to specific performance, B. [ g 3 o2] rurchase Price for the Residential Portions Rent for the Cammerc a Po' 1. The Developer's purchase price for each. of the Smparat-e Develormert Parcel-R in the Residential Portion of the Site shall to calculated as set forth in Petrag aph 1 of tha "'Method of Financing" (Attachment No. 5 hereto) . 018/15ites FINAL i•' d, n ' f .� 2. The rent to he paid by the Developer for each Separate Development parcel in the Commercial Portion whall be ' calculated as set forth in the revised loase for said parcel (Attachment No. d as modified by the applicable pre; yislane Ot Section 2. 11 and Exhibit "D" thereto) . CO ( 1303 ) Escrow for Dis osition nf 9*2arate Developmant Parcels Within tore ( 10) days a fi�sr receipt of a written request from the Developer, and after all applicable `"1 conditions to the Disposition Transfer of a 39parate Development parcel not forth In Section 301 have been satisfied or waived, the Agency agrees to open an escrow or eacrows with a title T insurance company selected ' by the Developer and approved by the Agency's Executive Director ,in his/her reasonable discretion (hereinafter the :' Escrow Agent0') for the disposition to Developer of such S.,3parate Development Parcel. This Agreement constitutes the joint basic escrow instructions of the Agency and Developer for conveyance of each such parcel . A duplicate original of this Agreement shall be delivered to the Escrow Agent upan the opening of each escrow. The Ardency and Developer shall provide such additional escrow instructions as shall be necessary for and consistent with this Agreement. The Escrow Agent is hereby empowered to act under this Agreemannt, and the Escrow Agent, upon indicating within five (5) days after they opening of each escrow its acceptance of the prc:visiciis of this Section 303, in writing, delivered to the Agency 'And Developer, shall carry out its duties as Escrow Agent hereunder. The Escrow Agent's responsibilities shall be limited to performing its duties get forth or referred to in this Article III. Upon delivery of the deed(s) to the applicable parcel(s) within the Residential Portion, pursuant to Sliction M� 307 of this Agreement, the Escrow Agent shall record thak deed when fete title can be delivered to the Developi`- in accordance with the terms and provisions of this Agreement. The Escrow Agent shall pay any aPPl'icable transfer tax. upon delivery of the leasor(s) to the applicable parcel (s) within the Commercial Portion pursuant to Section 307 of this Agreenattt, the Escrow Agent shall record the leave (or, at ' the Developer' s option, a memorandum thereof) when the leasehold estate can be delivered to the developer in = accordance with the terms and provisions of this Agreement. The Developer shall deposit into each escrow for a Separate Development Parcel within the Residential Portion, not later than one (1) business day prior to the scheduled close of escrow, the purchase price for such i Separate Development Parcel , calculated in accordance with 08/15/88 FINAL A ; r ,A i l pat graph 1 of the Method of Financing (Attachment No. ' S) ;. 'The Developer shall also deposit into each escrow to the ssaraw '.'11gont tho following fees, charges and costs promptly after the Iscrow Agent has notified the Developer of the asrount of s%ich fees, charges, and costs, but not earlier than ten (10)' .'days prior to the scheduled date for closing the I�sorowa „ 1.^ one-half of the escrow fee ; 2 . Ad valorem taxes and assessments, if any, can the portions of the parcel, if any, included within the Beach Maintenance t Fac�,iity Parcel and the Beach Boul6vard T Remnant Parcel for any tide subsequent to the close of escrow, and ad valorem taxes and assessments, if any, upon the portions of the parcel. included within " the Developer parcel for any time prior or subsequent to the close of escrow; and r� 3 . The premiums for the additional title insurance policy coverage or special endorsements to be paid by the Developer, as set forth in Section 310 . The Agency shall 'pay in escrow to the Escrow Agent the following fuses, charges and costs promptly after the Esi.row Agent has notified the Agency of the amount of such fees, charges and costs, but not earlier than ton , (10) days prier to the scheduled date for closing the escrow: 1 . One-half of the escrow fee; 2 . Ad valorem taxes and assessments, if any, upon the portions of the parcel , if any, included within the beach Maintenance Facility parcel and the Beach BoulevAral Remnant Parcel for any time prior to the close of escrow: 3 . The premiums for the title innura►nce policy or policies to he paid by the Agency in accordance with Section 310 of this Agreement; 4 . The costs for any state, county, or city documentary stamps; F _29_ 08/13/0 0 FINAL d' Y" N Y Yip ; �, . r /•, ri Y M'NP I � . Any transfer tax; d . The cost of drawing the deed(s) ; 7 # Recording fees; and 8 . Notary fees. The Agency shall timely and properly execute, aeknawlaeage ';•,and del iver the dead(s) , in the form rwferenced in. Section. its and met forth in . the "Form of Deed" (Attach- sent No. . 7) ' . and the in the form not forth in Attachment No. d (as revisedpurxuant to Section 2. 11 and Ethibit ' "s" therato3' , together with an estoppel certificate cortifyiriy that tha► Developer his completed all acts l necessa y to entitle Developer to the conveyance, if such *- be the 'fact. The Eacraw Agent is authorized to: 1. Pay, and charge the Agency and Developer, respectively, for any leas, charges and costs payable under this Section 303 of this Agreement. Before such payments or charges are ;wade, the Escrow . Agent shall notify the Agency and the Ekiveloper of the fees, charges and costs hoc smeary to clear title and close the escrow. 2. Disburse funds and deliver the dead or lease, title insurance policy, and other i do6uments to the parties entitled thereto ! when the conditions of this escrow have been fulfilled by the Agency and the f Developer. i . 3 . Record achy instruments delivered through this escrow, if necessary or proper, to ' deliver insurable fee title or leasehold � estate, as applicable, to the Developer in accordance with the terms and provisions of this Agreement. All funds received in this eescruw shall be deposited by the Escrow Agent with other escrow funds cf the Escrow Agent in an interest earning general escrow account or a►cco;uets with any state or national bank doing business in the State of California. such funds may be transferred to any other general escrow account or accounts . All disburse- ments shall be made by check of the Escrow Agent. Al2 adjustments are to be made on the basis of a thirty (30) day month. i 30- a Q8/'15/88 FLNAL rrl ;y Maw a I _ If this escrow is not in condition to close on or before the time established therefor in Section 304 of this kgreement, either party who then shall have fully performed the acts to be performed before the scheduled close of escrow may, in writing, demand from the Escrow Agent the return of its money, papers or documents deposited with the Escrow Agent. No demand for return shall be recognized until ten (10) days after the Escrow Agent shall have mailed copies of such demand to the other party at the address of its principal place of business. objections, if any, shall be raised by written notice to the Escrow Agent and to the other party within the ten (10) day period, in which event the Escrow Agent in authorized to hold all money, papers and documents with respeact to the applicable parcel(s) until instructed by a mutual agreement of the Agency and Developer, or by a court of competent jurisdiction. If no such demands are made, the escrow shall be closed as soon as possible. The Escrow Agent shall not be obligated to return any such money, papers , or documents except upon the written instructions of both t/is Agency and t' ei Developer or until the party entitled thereto has been determined by a final decision of a court of competent jurisdiction. Any amendment to these Escrow Instructions shall be in writing and signed by both the Agency and the Developer. At the time of any amendment, the Escrow Agent - shall agree to carry out its duties as Escrow Agent under ranch amendment. 1 ~ ' All communications from the Escrow Agent to the Agency and the Developer shall be directed to the addresses and in the manner established in Section 601 of this Agreement for notices , demands, and communications between the Agency and the Daveloper. The Agency will cooperate with the preparation and accommodation of the use of alternative escrow instruc- tions (allocating costs in the manner heroina►bove set forth) - in the event requested by a lender or lenders for the Developer. D. ( §304] close of Escrow and Transfer and Dive of Possessiono Serrate Development parcels Subject to any aztensions of time mutually agreed upon between the Agency and Developelr, the close of escrow for each Separate Development Parcel shall be completed on or prior to the dates specified therefor in the Scheduler of Performance (Attachment No. 4) . The Agency and Developer shall each perform all acts on its part to be -3 1-- 08/ls/88 MAL ,f r� performed necessary to the transfers in sufficient time for title and/or possession to be delivered in accordance with the foregoing provisions, Possession of each Separate Development Parcel shall be delivered to the Developer concurrently with the c1bas of * screw# except as 'provided in ;Uection 301.5. L 1305] Forte of. Deeds for Separate Development Parcels in Res dent Pcrt oft The Agency Shall transfer to the Developer fee title to each Separate Development Parcel within the Resi- dential Portion pursuant to gratis deed in the fora attached hereto so Attachment No. 7 , with title in the condition provided in section 3d6 of this Agreement. F. [1306] condition of Title i The Agency shall convey fee title to each Separaite. Development Parcel within the residential Portion, and leasehold ' title to each : Separate Development parcel within the' Commercial Portion frea and clear of, all recorded a�. rA unrecorded liens, encumbriancas, easements, licenses, leases, - and other detects of title- except the Approved Title hitoeptions listed or refot:enced in Section 2011+ 1. D. [ 5307 ] Tina for and Place of Delivery of peed(s)„.and Lease(s) �ar� Subject. to any mutually agreed upon extensions of trod►; the Agency shall deliver the executed deed to each Separate D4veiapment Parcel within the residential. Potation and the aeracuted lease (Attachment No. 6, as revised pursuant r .to SaCAion 1. 11 and Exhibit "$" thereto) to each Separate Devolopment Parcel within ,the Commercial Portion on or before the date established for the close of escrow. LA H. C 13D$] Taxes and Assessments Ad valorem tastes and assessments, if any, on those portions of the Site included within the Beach Maintenance Fndility Parcel, and the Beach Boulevard Remnant Parcel which have been levied, assessed or imposed for any period commencing prior to a Disposition Transfer shall be borne by the Agency, and ' all other taxes and assess-cents imposed on the Site, or any portion thereof, whether prior or subsequent to a Disposition Transfer, shall be borne by the Developer. ..32- OS/1s/S$ FINAL R � rIt" Lev 6 '1W . •wwT• i Z. (1309) Recordation of Deeds and Lenses The Escrow Agent shall files each dead and each leases (or, it the Developer's option, a memorandum of lease) fox recordatiou' among the land records in the offLos of the Cauhty Recorder for grange County, , and shall deliver to the Developer a title insurance policy in conformity with Section 310 of this Agreement. J. (1310) Tit_ .: insurance Concurrently with recordation of each dead for a Separate Development Parcel within the Residential Portion, a title insurance company selected by the Developer and approved by, the Agency's Executive Director in his/her reasonable discretion (the "Title Company") , shall provide and deliver to the ` Developer an ATU Survey and owner's - an%./ lAnder' s ALTA Extanded 'Coverage (porm B) policy or policies of title insurance issued by the Tit lee Company incur.ing.,,that title► is vested in the Developer in the condition required herein, with coverage in the, amount of Developer' s purchaso price. The Title Company shell provider they Agency with a dopy of each such title insurance ;policy. The De !,,eloper shall , pay . ,the. entire cost of the premium for each title policy, including the cost of any new survey required in order to obtain the titles policy and the cost for any addi- tidnil. coveexege or endorsements that Developer (or its lender) may require:. Concurrently with recordation of each lease of memorandum of lease for a Separate Development Parcel within the Commercial Portion, the Title Company shall provide and deliver to the Developer an ALTA Survey and standard form ALTA tenant's policy or policies of title insurances issued by the Title Company insuring that leasehold title is vested in the Developer `in the condition required herein. The Title Company shall provides the Agency with a copy of each such title pol icy,. The total amount of title insurance coverage for each Separate Development Parcel within the Comlaercial Portion shall be equal to the Permanent Annual Base Rental for the first full year for which such Permanent Annual Base Rental is to be chargod under the revised lease for such Separate Development Parcel multiplied by ten (10) , or such other amount as may be established by Developer and its lender. The Developer shall pay the entire cost of the premium for each title policy, including the cost of any mew survey required in order to obtain the title policy and the cost for any additional coverage or endorsements that Developer (or its lender) may require, -33- C9/1B/BB FINAL '� ��•,e 1 1. I K. (1311] Dccupants. of the Site Possession of each Separate Development Parcel shall be delivered to the Developer with no possessory rights or possession by others, except as may be consistent with the approved condition of title referenced in Section 306, or othervise as may be specifically approved in writing by Developer if Devslcper , reasonably determine& that it can proceed with development pursuant to the approved plans . L. (5 3 x12 ] 1%4, sioei Condition of the Site 1•IAIIIII..•I••Y••� 1111•I�YY Except as set forth in Past9 raph III of the Scope of Development (Attachmept No. 3 ) , and specifically excluding the matters reference.4 in Section 311, the Agency shall transfer and convey each Separate Development Parcel to the hevelope.r in an 'gas is" physical condition. If the Agency reasonably determines. Lhat the cost of cleaning up or removing any toxic or hazaidous substances on, under, or with respect to a separate Development Parcel exceeds the maximum Agency financial commitment, as provided in Paragraph III of t « the Scope ''of Development, the Agency shall promptly ,so notify s� the Developer and if the .Developer ..does not, agree. within sixty, (60) days after . receipt of such notice to assume the responsibility for payment of such excess cast, either part may terminate this Agreement with respect to such Separate Development Parcel 1 pment Par in accordance with Sections 608 and 609 . Subject only to the foregoing and the Method of Financing (Attachmen;: No. S) , the Developer shall be responsible for all costs incurred in preparing the site for the prevision of the Developer hmprovements. M. [ ;313] Limitations on Time and Phasing. of Disposition Transfers. NotwithsItanding any other provisfana of this Agreement to the contrary, without the .Agency.0 s written consent, which consent may be withheld in tiie Agency"s sole and absolute discretion, the thus, order, and phae+ing ' of the Disposition Transfers of t+%e Separate Development Parcels within the site shall be consistent with the following requirements and limitations: {i) Within the Commerce I Portion of the Site, the order of Disposition Transfers shall be as follows: Phase 11 Phase Z, Phase 3 , Phase 4 , Phase 5, and Phase 6 (Separate Development parcel Nos. 1-6) (as such phases area shown and described in the approved Master Site P;ian for the Commercial Portion of the site and the Scope of Development (Attachment No. 3 ) ) . 00/23/88 FINAL lti k ii.. rr WNW f Within the Residential portion of the -site, the order of Disposition Transfers Mall be as follows: Phase 11 Phase a , .' and Phase 3 (Separate Development Parcel Mos. 7-9) (as. such phases are described *' in the the Scope of Development and tentatively shown in the "Conceptual Residential, phasing Exhibit" attached thereto as Exhibit 1) . (iii) The Disposition Transfer for the Phase l residential development (Separate Development Parcel No. 7) shall occur no earlier than the. followinq conditions are satisfied: the Huntington Beach Inn has been demolished, the Developer has commenced construction of the Pharr• 3 commercial development (separate Development parcel No. 3 ) , and the Developer . has either completed construction of the . Phase 3 commercial development , or is diligently proceeding with such construction of the time of the Disposition Transfer of Separaata Development Parcel. No. 7 . (iv) The Disposition Transfer of Phase 2 of the residential development (Separate Development Parcel. No. 8) shall occur no earlier than the fallowing conditi. ' care satisfied: the Developer has com�iaenced construction of the Phase 4 commercial development (Separate Development Parcel No., 4) , and the Developer has either completed construction of the Phase 4 commercial development or is diligently prooeeding with such construction at the time of the Disposition Transte,~. of Separate Development Parcel No. 8 . (v) The Disposition Transfer of the Phase 3 residential development (Ceparate Development Parcel. No. 9) shall occur no earlier than the following conditions are satisfied: the Developer has commenced construction of the phase 6 Commercial development (Separate Development Parcel No. 6) , and the Developer has either completed construction of the Phase b commercial development or is diligently 0i/15/88 FINAL 1 r proca ading with such construction at the time of the Disposition Transfer of separate Development Parcel No. 9 . NO Sub;Cat only to extensions of time to which the Developer may be entitled pursuant to Section 703 below (including, without limitation, extensions resulting from Agency's failure or inability to acquire and terAinate ail property interests/occupancies required for the Phase 1 commercial development) and extensions of time to which the Developer may be entitled due to any default hereunder by the Agency, if the Developer does. not cnmmeence construction of the Phase i commercial development (Separate Development Parcel No. 1) within thirty (30) months after the Effective Date of this' Aireaement, the ' Developetr's right to any further Disposition Transfers (i,ncl%iding, without limitation the Disposition Transfer '` of Separate Development Parcel No. i, if such conv4yance has not occurrad by that timea) , shall be terminated. (vii) subject only to extensions of time to which , the Developer ' may, be entitled pursuant to Section 703 below (including, without limitation, extensions resulting from agency•s failure � or inability to acquire and terminate all property inteerex Ms/occupancies required for the Phase 3 commercial development) and extensions of time to which the Developer may be entitled due to any default hereunder by the Agency, if the Developer does not demolish the existing Huntington Beach Inn and commence construction of R the Phase 3 commercial development (Separate Development, Parcel No . 3) on or before December 31 , 199b, the Developer's right to the Disposition Transfer for the Phase 6 commercial development (Separate Development Parcel No. 6) and the Phase 3 residential development (Separate Development Parcel No. 9) shall be terminated, except that the Developer shall have the right, at its sole: option, =36- 00/15/38 FINAL OEM 1 floe, .' 5+ i� + v • to four (4) one-year extensions of said, deadl ine (to a date no later than December 31, 3000) , as follows (A) If by December 31, " 1996, the De,4el+oper pays to the Agency the sum of Five Hundred Thousand Dollars ($600, 000. 00) 0 the Developer shall be entitled to extend the deadline fret forth above by an additional pericd of one year, to December 31, 1997. (H) If by December 31, 1997, the Developer pays, to the- Agency -the sum of Five Hundred Fifty Thousand ?,+ bo' llars ($550, 000. 00) , the Developer shall be entitled to extend the deadline . act forth above by an additional period of one year, , to December 31, 1998. Vol (C) if by December 31, 19961 the Developer pays to the Agehay the sum of dixc Hundred Thousand Dollars ($6000000.00)., the Developer shall be entitled to extend the deadline set forth above by ,ari additional period of one year, to December 310 1 1999. (D) If by December 31, 1999 , the Developer pays to the Agency the sum of Six Hundred Fifty Thousand `;. Dollars ($6$0, 000.00) r the Developer shall . be entitled to extend the deadline set f orth above by an additional period of one year, to December 31, 3000. et (Viii) Subject only to extensions of time to which the Developer may be entitled pursuant to Section 703 below . (including, without limitation, extensions resulting from Agency's failure or inability to acquire and terminate all property interests/occupancies required for the Phase 4 commercial development) and d extensions of time to which the Developer may be entitled due to any default hereunder by the Agency, if the Developer doles not commence construction of the d -37- 0S/15/48 FINAL 1 �1 r` y h Phase 4 commerair,;i' development (Separate Development parcel No. 4) by December 31, 2001 f the EYW41oper's right to the Disposition Transfer of the Phase 6 gommiroial development (separate Developmea't parcel No. 6) and to the Phase 3 residential development (Separate Devele-,pment Parcel No. 9) shall be terwihated, exaept that the Developer shRil have the right, At its option, to four (4 ) one-year extensions of said deadline (to a date no later than December 31, 2004) , an follows: 4 (A) If by December 310 2001, the p Developer pays to the Agency the sum of Sevin Hundred Fifty Thousand Dollars ($750, O60.00) , the Developer shell ' be entitled to extend the deadline set , forth above by an additional . period of one year, to December 31, 3002. (e) If by December 31 , 2002 , the ' Developer pays to the ,Xgency the sum of Eight Hundred Thousand Dollars ($800F000. 00) , the Developer eahall be entitled to extend the deadline set forth above by an additional period of one year, to December 31, 2003 . r (c) If by December 31, 2003 , the Developer pays to the Agency the' sum of Eight Hundred Fifty Thousand Doll are ($850,000. 00) ', the Developer shall be entitled to extend the deadline set forth above by an � additional period of one year,, to ii December 31, 2004. (ix) subject only to extensions of time to which the Developer may be entitled pursurint to Section 703 below (including, without limitation, extensions resulting from Agency"s failure or inability to acquire and terminate all property interests/occuyancies required for the Phase b commercial developutant and ,J extensions of time to which the 13aveloper may be entitled due to any default hereunder by the Agency, if the Developer 00/15/88 FINAL 1.. c R ; 4 doss not satisfy (or the Agenoy does not waive) all conditions precedent to the Developer's ' right to the Disposition Transfer of the Phase 6 commercial development (Separate Development Parcel No. 6) no later than December 31 , 2004 , the Developer's right to such Disposition Transfer and to the Disposition Transfer s of the Phase 3 residential development (Separate Development Parcel No. 9) shall be terminated (and the Developer shall have no right to purchases further extensions of said deadline) . (x) subject only to extensions of time to which the Developer may be entitled pursuant to Section 703 below and ' extensions of time to which the Developer may be entitled duo to any defoult hereunder by the Agendy, if the Developer does not commence construction of all six (6) phases of the commercial development on the Commercial portion of the Site by December 31, 2004, the lease term of any l portion of tha Developer Parcel that has +� not already beer conveyed to the Developer pursuant to a Disposition Transfer shall expire and terminate effective December 31 , 2010, as set forth in Sections 1.4 and 1 .5 of the Lease (Attachment; No. 6 hereto) . Any option payments made by the Developer pursuant to subparagraphs (vii) and/or (viii) above shall be non-ratundable and shall not be creditod either to the purchase price of any of the Separate Development parcels within: the Residential Portion of the site or, to any :rent payments, to be made by Developer with respect to the Developer Parcel or the Commercial Portion of the Site. Notwithstanding any other provision in this Agreement, the calendar dates specified in subparagraphs (vi) through (ix) above shall be extended by the period of any delay specified in the opening clauses of said subparagraphs. * i w3s� 0811514b FINAL a • y • t mob IV. DEVELOPMENT OF THE €SITE BY THE DEVELOPER A, L 1401] sco a of Development Except as may be specifically provided herein, the $its, and each 6,3parate development Parcel thereof, shall be developed as provided in the Development Agreement (Attachment No. 9) , the previously issued development 4 l rovals referenced in Section 203 , the Scope of Development (X taahmert too. 3 ) , and the plans and related documents yet I to be approved by the C+.ty and ,Agency pursuant to Section 2030 as the same way ne amended from time to time in accordance herewith. i , H. (1402] Cost of Construction All of tits casts of demolishing and clearing existinv improvements from the Site and developing and constructir►g all of the on-Site and off-Site improvements to be provided pursuant to this Agreement shall be allocated betwe4in the Developer and Agency as set forth in the Mbthod of Financing (Attachment No. 5) . C. [1403 ] Construction Schedule � i *6 The Developer and Agency shall begin and complete all construction and development required of each of them within the times specified in the Schedule of Performance (Attachrent No. 4) . D. [1404] Bodily Injury and Property Damage Insurance The Developer shall defend, assume all respon- sibility for, and hold the Agency, and it.s officers and empioyees , harmless +ron all claims or suits for, and damages tc., property and injuries to persr..ne, including accidental death (including reasoryable attorneyls fuss and costs) , which may be caused by any of the Developers activities under this Agreement, whether such activities or performance thereof be by the Developer or anyone directly or indirectly employed or contracted, ,tith by the Developer and whether such damage �► shall acc176e or be discovered before or after termination of this Agreement. prior to the commencement of construction on any Separata Development parcel . the Developer shall take out and maintain during the, entire construction period (until issuance of a Certificate of Completion with respect to such parcel, in accordance with Section 415 below) , an "occur- rence" (as opposed to "claims made") basis comprehensive liability policy in the amount: of Five Million Dollars ($50000, 000. 00) combined single limits (pa::t of which a 1 -4Q- 08J15/05 FINAL I' woo ,-', f-' oworager, may be provided by umbrella policies) , including GOAtr4catnal Utbility, as shall protect the developer and Agency frm claims for such damages. the Developer shall furnish ac certificate of form acceptable to the A,Agency countersigned b insurance in fo9 YY an• aut;.hot iced agent of the insurance carrier on a form of the insurance carrier setting forth the general provisions of the insurance : cov*rage. Thin 'countersigned certificate shall s1w the Agency as an additional insured under the policy. The certificate by the insurance carrier shall contain a stateAtnt of obligation on the part of the carrier to notify Agency an material chap a cancellation or for Ago Y . of Y 4 � te►rnination of the ecrv*raga at least thirty (30) days in advances of the offactive date of any such Material "ch'n4ej Cancellation or ,-termination. Coverage provided hereunder by the Developer shall be primary insurance and not contributing �. with- any insurance maintained by tho Agency, and the policy shall contain..su' ch an endorsement. The insurance policy or the.. certificates of insurance shall contain a waiver of subr64 itian for the benefit: of the Agency. The required certificate shall be furnished by the Developer prior to the iarsuance of building permits. potv_thstdndinc� . the foregcimg, the aes�relop�r shall also furnish or cause ,.,:'o be furnished to the: Agency ovidesnce satinf3ctory to the Agency that its general Contractor for the development of the Site pursuant to this Agreement carries workers' con Isnsati.on insurance as required by law. p r~ :hee Davelopor's obligations to obtain and maintain insurance shall be limited by what is com msrcially avaAlabla in the insu.ranew market. The provisions of thin section 404 area not intended to limit anv additional obligations the Developer may have under the *eases with respect to the provision of .i insurance . E. [ 6405] C3.tX and Other Governmental Agency Permits before commencement of construction or development of any buildings, structures, or other worker of improvement upon the site or within the Project ,Area rsv_uired to be constructed by the Deveelopex , the Developer shall, at its own expense, secure or causes to be secured any and all i permits Which may be required by the City or Agency, as providsd! in Section 203 above!, and consistent with the Development Agreement (Attachment No. 9) . The Agency shall pxovidta all proper assistance -to the Developer in aeouring w41- 0811S/8S FIMAL A, r ,, y';'' � �;, ,� , •,mow• such permits pertaining to the Developer Improvements . All application, permit, and inspection Yeas charged by the City or Ageanay shall be in accordance with then City's uniform fee schedule and the Development Agreement. The . Agency i agrees to ekercise reaamonable di1L e, , at no eXpense to Agency (other than Agency 6vor'beaad and payroll expenses) ,,, to secure any and 6.11 permits L; (bait not , the paymant ,:nf, fees) which may, be rsquixed by any ' other. e,�overnmeental ege�rioi e�ttected t►y ;.,such construction, development, or work, including without limitation (i) erncreaa2�nt i [";,rmit(s) , from .the California Department of Traroportation for. any work within the right-of-way' along the 1, Beach Boulevard and Pacific Coast ' Highway fronta gas of the Site ' ,( ucta es curb cuts grid .•,the pedestrian overpass(ens) ) t rt-+-)• .appror+`al from the California Department of Fish and Game and , United States Fish and Wildlife Service for tiia wetlands � mitigation required for any identified wetlands on the Beach Boulevard Remnant Parceal; and (i+i) approval of any coastal development , permit(a) recr.!ired from the California Coastal Commission. , F. (14 0 S] Rights of Avcdas For the purpose of assuririg compliance with oMac: Agreement, reefpressenta.tive>es of the Agency shall have the aright .of access to the Site, , without charetea or Rear i at normal izonatxuation houreA during the period of construction for the purposes of this Agreement, including', kaut not limited to, the inspection of the work being performed in constructinq the Developer Impreve rents, so long ,an they ' y comply with all safety rules. Such representatives of the .� Ageanay shall be ,those who are so identified in writing by axeg4tivea „ pireetor ' of the Aga icy. Each such' repiesentativ'e .: of .the 1►�'enay shall ideAlty himself or herself at the job sitii Gffice upon . his/her 'entrance to the Site, ' arid shall p vide the aeVelop�r, or then a onestruation superintendent or other -person 'in charger on the. Site, .a rerasongtble dapp crtunity to have a representative accompany , him/#ier during , such --� icspection.0 in. addition, the Agency agrees in such event,, to ind mniiy, d4ifind,,, and told harmless then Developer, Desveloper•& succeassors . and assigns, and their officers , e mploy0ers,, end agents, from and against any and all claims or liabilities for personal Injury or death, property damage, or ec*nomic less arising out of the exercise of such rights. The Agency, for itself and for the City and other public agencies,, at their sole risk and eicpensc, ! reserves the right to enter the Sits or any part thereof at all reaaeonable titres for the purpose of construction, reconstruction, maintenance, repair or service of any public improvements or public facilities located on the Site. Any -42- sS/15/SS FINAL. t tier'+'' such entry -hall be mare only after reasonable notice to the DevoiLopor; , provided, however, that the City and the Agency (and their respective officers , agents, and employees) may enter upon the site without necessity of prior notice to ,., Devel,oper in � the event of any oraergency or similar situation in w4�ich it is not practicable to provide prior notice to the Developer. In addition to the foregoing, the Agency and the City sell at all times retain the unrestricted right of access to all publicly ovned areas adjacent to the Sit*. subject to obtaining any approvals required under the Huntington Beach Ordinance code, the Developer and this Agency agree, to cooperate in placing and zaintaining on the site two signs indicatinq the respective roles of the Developer and the Agency in the project. G. (6407] Local, _ state and FedfAral Laws The . Developer agrees to carry out the construction of the Developer Improvements in conformity with all applicable laws. R. [5408] Antidiscrimination During Construe t on �J The Developer, for itself and its successors and assigns, agrees ir►at irk the constructior.' of the Developer r"1 Improvements provided for in this Agreement, the Developer will not discriminate againrt any employee or applicant for employment because of race, color, creed, religion, age, son, marital status, handicap, rational origin or ancestry. i 1. (1409] Taxes Assessments, Encumbrances and L ens ,.The Developer shall ay when' di .. all real *state or . posr�ier sory interest taxes and ne ass«samer is on the site .1ovied subsequent to the Disposition Transfers. Prior to the, iestuance of a certificate cf Completion with respect to each separate Development Parcel, the. Developer shall remove or have removed any lien, levy, or attachment made. on such parcel, or assure the satisfaction thereof, within a roamonable time but in any assent prior to a sale of the parcel thereunder. Noth] ng herein contained shall be doomed to prohibit .the Developer from contesting the validity or amounts of any tart assessment, encumbrance or lion, nor to limit the remedies available to the Developer in respect thereto. . 08/1518 8 rINAL • { •'r ' ' �a144r'^r";f�'n°'k�l� •-�MI•' �y r 41 '. u ' �. (3410] Holder Not Obligated to Construct Improvements The holder of any mortgage or deed of trust or other conveyance for financing authorized by this Agreement shall not be obligated by the provisioner of this Agreement to f construct or complete the improvements or to guarantee such 1 conetruct,ion or completion( nor shall any covenant or any a'�;her provision , in ;, the. deeds for the ' Separate Development Parcolw in the Nexidential. Portion (Attachment No. 7) or the -lease* for the Separato Development parcels in the CommercialPortion (Attachment No. 6, as modified in accordance with Section . 301 hereof and Section 1. 11 and Exhibit "B" " of ' Attachment .No, 6) be construed so to 'Obligate such holder. Nothing in this Agreement *hall bee' doomed to construe, permit ear'• Authorise any, such holder to devote the Site or any 8epaerate Development Parcel thereof to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by this Agreement. N. [ 5411] Notice of Default to Mort a ee or De*3 of Trust Holders; R aht o Cure With respect .to any mortgage, dead of trust, .� . or other conveyance for financing granted by the Developer 4a provided herein, whene'ver the Agency shall - deliver any not}.co or dwwnd to the Da�vel open ,with respect to any breach or default by they Developer in completion of construction of the improvements, the Agency shall at the mane time deliver to each Molder of record of any mortgage, deed of trust,, or other conveyance for financing authorized by this Agreement a -� copy of such notice or demand, provided that such. holder has requested such notice by writing received by thee .Agency. No notice of default shall be effective as to the holder unless such notice if given. Each such holder shall (insofar ar, the rights of the Agency are concerned) have the right, at. its option, within sixty , (60) days after the receipt of, the notice a to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the mortgagee debt and the. lien ' of its mortgage. Nothing contained in; this { Agreieemmt shall be doused to peraj.t or authorize ouch 'holder .� to undextake or continue the construction or completion of the improvemonts (beyond, the extent -necessary to eonsorve or ,•,' protect -the inprovemeints or construction already ' madee) without firs: having expressly assumed the Devotoperfs Obligations. to the .Agency by written agreement meeting the requirea mts of the penultimate paragraph of Section 107 . Any such holder properly completing such improvements shall bee entitled, upon couplianco with the Maguiremeents of Section 415 of this Agreement, to a Certificate of Completion (as therein defined) . i -44- . : 08/25,/88 MAL i mom ` P, 'w 1 1 �Y r' L. [ 1412] Failure of Holder to Complete Improvements In any case where, sixty (60) days after default by the bsveloper in completion of construction of, the „J deVilaker Improvements under this ' AgreSmelnt, the holder of any, sortgage. or Need of truest creating ,a lion or encumbrance: �. U the Site rr any part thereof has gnat exercised ' the , = a Zion` to construct, or if it has exer4 isOd the option "eared hater riot proceeeded diligently with construction, the Agency n f purchaese. the mortgagee or deed of . trust by payment tee the 4�odeer of the &iaount of •`_he unpaid mortgage or deed of trust dart, including principal and interest and all other suers s&aureed - by the mortgage or deed of trust. I f the ownership of the Site or any part th•ereeaf has Vested in the holder, the wJ Agency-, if it so derrires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the followings, a . The unpaid mortgage or 'dead of trust debt .�� at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other .. income received during foreclosure + proceedings) . �1 b. All expanses with respect to forelosure including reasonable attorney' s fees; sJ C . The net expense, if any, incurred by the ' { holder as a direct result of the subse- quent management' of the Site or part thereof; s d. The costs of any improvements made by such holdery and j a. An amount equivalent to the interest that .: would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had cantinueed in existence to the date of payment :•y the Agency. The foregoing rights of the ,Agency as set forth in this Section 412 shall be in addition to and shall not diminish those rights of the Agency as fea owner of the affectod portion of the Site. 49/151SO FINAL 1 J r 4 w v -^ M. ($413 3 Right a; the Agency to Cure Mortgage or Deed of Trust Default After the Disposition Transfer of any Separate Development Parcel within the Residential Portion, in the event of a mortgage or dead of trust default or breech by the Developer prior to the completion of the construction of the Gevrloper Improvements on such, Separate Development Parcel, and the holder of any mortgage or deed of trust has not exercised its option to construct,, the Agency may cure the default . In such event, the agency shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing such default. The Agency shall also be entitled to a lien upon the applicable Separate Dev+elopmofit Parcel to the extent of , such costs and disbursements. Any such lien shall be subject to the exist- ing financing mortgagees or deeds of trust. Agency shall promptly release any lien it places upon the applicable separate Development Parcel pursuant to this Section 413 uppon Developer la payment of Agencyr s costs arise expenses giving rise to such lien. [ 1414] Riaht�of the Agency. to Satisfy other _Lions on the Site After Tit et Passes Alter the Disposition Transfers provided for in Article III above, and prior to the completion of construction, and after the developer has had a Treasonable time to challenge, cure or satisfy any liens or encumbrances on the Site, or portion thereof, the Agency shall have the right to satisfy any such liens or encumbrances, provided , however, that nothing in this Agreement shall require the Developer to pair or matte provision for the payment of any tax, assessment, lien or charge, so long as the Developer in good faith shall contest the validity or amount thereof, and so long as such delay in payment shall not subject the Site or portion thereof to forfeiture or sale. o. [§4153 Certificate of Completion Promptly after completion of all of the Developer improvements required by this Agreement to be completed by the Developer upon, each Separate Development Parcel, together with all of the developer liaprovements off of said parcel which area required to be completed by the Developer prior to commencement of business on said ,parcel , but excluding normal and customary tenant improvement items , the Agency shall furnish the Developer with a Ceartificate of Completion upon written request therefor by the Developer. The Agency shall not unreasonably withhold any such Certificate of Completion. Such Certificate of Completion -46- 08/18/B$ FINAL V ; ( ar 1 ' / 1 . shall be a conclusive determination of satisfactory completion of the construction required by this Agreement ' upon the applicable parcel and the Certificate of Completion shall so state. After recordation of such Certificate of Completion, any party then owning or thereafter purchasing, leasing or otherwise acquiring any inti*rest in the parcel covered by the Certificate of Completion shall not (because " of such ownership, purchase, lease or acquisition) , incur any obligation or liability under this agreement except: that: (J) as to Bach Separate Development Parcel w:t.hin the - Residential ,Portion, such party shall be bound by any Covenants contained in the deed for such Separate Development Parcel (Attachment No. 7) , and (ii) as to each Separate Development Parcel within the Commercial Portion, such party ; shall be bound by any covenants contained in the lease for such Separate . Development parcel (Attachment No. 6, as modified in accordance with Section 301 of this Agreement and -• Section 1. 11 and Exhibit "H" of :&ttachment No. 6) . M Each Certificate of Completion of construction shall be in such form as to permit it to be recorded in the Recorder's, Office of Orange- County. If the Agency refuses or fails to furnish a Certificate of Completion after , written request from the w; Developer, the Agency shall, within thirty (30) days of written request therefor, provide the Developer with a written statement tAf the reasons the Agency. refused or failed to furbish a► Certificate of Completion. The statement shall � also contain Agency's opinion- of the actions the Developer emit take to obtain a Certificate of Complae,t:ion. If the reason for such refusal is confined to' the immediate avail- ability of., "specific items of . materiales for landscaping or other) minor and typical "punch-list', items that do not 1.; present significant health and safety c+once'r.na 1. the Agency will issue J.ts Certificate of Completion;.•upon the •posting of as, bond by the Developer with the 'Agency in an amount re0r' esenting ai fair value of the work not yet c6apleted. If the Agency shall have failed to provide such written -- statement within said thirty (30) day , period, the Developer shall be conclusively deemed entitled to the certificate of _., toeepletiori. Such Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of any mortgage, or any insaror of a mortgage wacurinq money loaned -to finance the Developer Improvements, or any part thereof. Such Certificats of Completion is not a notice of completion as referred to in the CAiifornfa Civil Code, Section 3093 . 1 M47- 0•/15/88 FINAL , rl V. [ 1500] USE OF THE SITE; EFFECT AND DURATION OF COVENANTS A. [ §501] uses .W The developer covenants and agrees for itself, its successors, its assigns, &nd every successor in interest to ouch Separate Development parcel, or part thereof, that during construction and prior to the issuance of a Cerrtifi- -" waste$ of Completion with respect to said parcel in accordaace with , Section 415, the Developer, such successors and such assignees, shall not devote such parcel to any uses not specified in or permitted in the land use permits approved by the city and Agency in accordance with Section 203 . They foregoing covenant shall run with the land. S ; The Developer covenants by and for itself and . •, any sueeeisors in interest to the Site and any portion thereof that there shall be no discrimination against or • � segregation of any person or group of persons on account of race, color, creed, religion, sear, marital status, .age, T; handicap, national origin or ancestry in the sale, lease , sublease, transfer, use, occupancy, tenure or enjoyment of the Site or portion thereof, nor shall the Developer itself or any person , claiming under or through it establish or permit—any such practice or practices of discrfmir it ion or segregation Frith reference to the selection, to.ation, nunber;; use or occupancy of tenants, lessees, subtenants, sublessees or vendess of the Site or portion thereof. The _..' foregoing covenants shall run with the land. The Developer shall refrain from restricting the rental, sale or lease of the site on the basis of , race, color; creed, religion, mar, marital status, handicap, national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegraga- tion clauses$ 1. In deeds: "The grantee herein', covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person , or group of persons on account of race, colon, creed, religion, ' sex, marital status, age, handicap, national origin or ancestry in the vale, leaxsee# subleases, transfer, use., occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself -48- 08/1S/88 - FINAL If'f1 iy w, i s or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or ,segregation with reference to the selection, location, number, use or occupancy of tenants, 1e58ee20 subtananta, sublessees or ve; dess in the land herein conveyed. The fox-egoin►g covenants shall run with the land. " I .y 2 . In leases: "The lessee herein covenants by .and for himself or herself, his or her ' heirs, executors, administrators and assigns, and all persons claiming under or , through him or her, and this lease is made and accepted- upon and subject to the -� followiriq conditions: ' "Theere' shall be no discrimination against or segregation of , any person or group of persons on account of race, color, creed, . religion, sex, marital status, handicap, age, ancestry or national origin in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the promises herein leased nor shall the -lessee himself or herself, or any person claiming under or through trim or her, establish or permit any such practice or practices of discrimination or sigrega- ", tion with reference to the selection, ,._J location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vandees in the promises herein leased. " 3. In, contracts: "There shall be no discri- mination against or segregation of, any person, or group of person, on account of race, color, creed, religion, sex, narital status, age, handicap, ancestry 'or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself -'' or any person claiming under or through _.� his or her., establish or permit 'mny such practice or practices of discrimination .� or segregation with reference to the selection, location, number, use or • g�/sa/�i p,�l��� r +, •' ^ N F'• r: \ r! i1 r. I , 1 ,.J occupancy of tenants , lessees , suL- tenants, sublessees or vendees of the premises .' �f The covenants contained in this Section 501 ' shall, without regard to technical classification and desig- nation, . be binding for the benefit and in favor of the Agency, Ats successors and assigns, the City and any succes- sor in interest to the $its or any part thereof. a. C3542) affect and Duration of Covenants The Agency is deemed the beneficiary of the Bever and provisions of this Article V and of the covenants wT sit forth therein running with the laird, for rind in its own rights and for the purposes of protecting the interests of the coivaunity and other parties, public or privates, in whose favor and for whose benefit said covenants running with the land have been provided. Such covenants are not for the benefit cat, and may not be enforced by anyone except as provided herein provided that the Agency -assumes no respon- sibility for the efficacy of the foregoing part of this ..� sentence. Such covenants ' shall run in favor of the Agency, without regard to wtether the Agency has been, remains or is _.f an owner of any land or interest therein in the Site or in the Project Area . The Agency shall have the right, if such covenants are breachtd, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such �•+ breeches to which it or anyl' other benefieia l-iss of said covenants may be entitled. This section 502 sha,':''l not limit the rights and remedies of the Agency pursuant to the lease for any of the Separate Development Parcels within the covgarrcial Portion (Attachment No. 6, as modified in fiCcordance with Section 301 of this Agreement and Section loll `and Exhibit "B" of Attachment No. 6) , or under any of the deeds to the Separate Development Parcels within the �f Residential portion (Attachment No. 7) . Notwithstanding any other provision of this hosement to th+a contrary, the covenants contained in this Agsreemmt (excepting only the Method of Financing, Attachment Sae 51 and such other provisions of this Agreement 'as shell be applicable to the Agency's and ' Developeris rights and obligations with respect thereto) shall terminate and be of no further force or affect as to each separate Development Parcel upon the issuance of a Certificate of Completion therefor, and thereafter all rights and obligations of the parties with respect to said Separate Development Parcel shall, except as s p pecifioaliy met forth in this sentence, be as set forth In the applicable lease (for Separate ! 08J15/8i PXNAL t aim c y L i i i S 1 Development Parcels within the Commercial Portion) and deed (for separste Development Parcels within the Residential Portion) , vie (1600) RIFAULT� REMEDIES A. (1601) Defaults--General Subject to the extensions of time set forth in Section 703 , fiiaurs or delay by either party to perform any term or provision of this Agreement constitutes a default under ths Agreements provided, however, that if the party who so fail$ or delays commences. to care, correct, or remedy such failure or delay within thirty (30) days after receipt of • I•;ot:ics specifying such failure or delay, and shall deliqsnxly prosecute such cure, correcyion, or remedy to completion, then such party shall not l;-a deemed to be in default . The injured party, shall give written notica of default to the defaulting party, specifying the default eosapWhed Of, %Xcept: as required to protect against further damage, the injured party shall not institute proceedings against the defaulting party +antic, thirty (30) days after the delivery of the notice Of default or - during the period in ..' which the defaulting part, in diligently proceeding to curs, correct or remedy such default. Notwithstanding, any other provision of this Agreeneot to the contrary, the failure of the Dev'61 apexr, after And despite reamcnable diligence, to obtain City or Agency approval of any of Deve'ioperls plans (aaction' 203) , to obtain financing commituants or Agency approval .thereof (Se6tifon 104 ) , or to obtain a hotel op% ator or hotel franchisor ' or Agency approval thereof !Sections 105 rind 206, respectively) , shall not constitute a default by the Deveeloper hereunder; provided, ti�at nothing in this Section 601'' iaa intended nor shall be construed to limit or restrict the 1l4erncyf s rights of termination under Section 609 below. �,. (1603) Legal Actions WNW ( 16031 Institution of Legal-Actions w�.w�r�uww In addition to any other rights or remedies and subject to the restrictions in Section 601, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purp000 of this Agreement . Such legal actions must be instituted in the t r 09/15/8+6 FINAL .rL • YrB i .� Superior Court of the County of Orange, State of California, in an appropriate municipal court in that county, or in the z Federal District court in the Central District of California. 2. [ 5604) Applicable Yaw +' The laws of the State of Californian shall -.� govern the interpretation and enforcement of this Agreement. 3. [§605] Acceptance of service Process In the event that any legal action is commenced by that Developer against the Agency, service of process on the Agency shall be made by parsonal service upon the Executive Director or in much other manner as may be provided by law. � In the event that any legal action is commenced by the Agency agninst the Developer, service of process on the Developer shall be made by personal service, whether grade within or without the State of California , or in such other mariner as may be provided by law. C. r§606] Rights and Remedies Are Cumulative Except are otherwise expressly stated in this Agreement, the nights and remedies of the pNrties are cumula- tive, , and they exercise by. either party of one or more of, such rights , or remedies shell not preclude the •kercise by it, at the mania: or different times, of any other rights or remedies for the same default or any other default by the ether party. Not by way, of limitation of the foregoing, the right' of m party under Section 608 or 609 to terminate this Agreement dui. to a default by the other party shall not be deemed to prohibit the party entitled to termination to sue for specific performance, damagges, or other appropriate relief except as set forth in section 611 . D. [1607] Inaction Not A Waiver of Default Any failure or delay by a panty in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, . or deprive such party of its right to institute and maintain any actions or proceedings which it may deem neces- sary to protect, assert or enforce any such rights or remedies. -E2- 08/15/88 FINAL • 1. f 1 - i 1 •rJ', 1 ,4 E. [J608 ] Termination By The ae`►eloper .rrrrr - 1 1n the event that, prior to the deadline set forth in this Agreement for a Disposition Transfer of a Separate Development parcel , as set forth in' Section 313 : (a) the Developer and Agency fail to �-, timely acquire/terminate al), of the property interests/occupancies required to be acquired with respect to said Separate Development parcel ! or the pacific Mobilehome Park property in order to allow development to proceed in accordance with the approved plans, and the Agency does not timely elect to exercise its poorer of eminent domain as needed to acquire the remaining interests/occupancies, in accordance with Section 201 ; or (b) the Agency fails to diligently prosecute any eminent domain actions to completion, in accordance with Section 2011 or (c) the Developer is unable, after and despite its exercise of reasonable diligence, to timely obtain approval �J of its plans and permits for that portion of the Developer. Improve- merits to be constructed with respect to said Separate Development Parcel from the City, Agency, or any other governmental agency having juris- diction over the ' project, in accordance with Section 203 ; or 1'7 (d) the Developer is unable, after and despite its exercise of reasonable diligence, to timely obtain financing commitsents for thia davelolpment of said Separate +� Development Parcel or Agency approv- al thereof, in accordance with Section 204 ; or di (a) as to each Separate Development Parcel. on which the Developer is required to construct a hotel, the Devaloper is unable,, after and 4 despite its reasonable diligence, to -53- ,' 08/1S/�i8 rrN1i1L • . Y 4;• , � ors;.. I 1 --, timely enter into an agreement , with a hotel operator or obtain Agency approval of such operator, in accordancj with Section 205= or (f) as to sack Separate Development Parcel on which the Developer i' required to construct a hotel, the Developer is unable, after and despite its reasonable diligence, to timely enter into an agreement with } a hotel franchisor or obtain Agency approval of such franchisor, in accordance with Section 2061 or _.i (g) the Agency does not clean up or remove all toxic and hazardous -� substances on, under, or with respect to such Separate Development -', Parcel, and the Developer does not agree to assumes the responsibility for payment of . any "excess" cast for . such clean-up or removal, in . .;•accordance with Section 312 and Aaragraph IIx ok the Scope of Developmeent (Attachment No. 3) s or (h) the Agency is in material default of any of .its �"obligations under t1 is Agreement with, ; reeespeot ,to said Separate Development Parcel, and s-c_. default has not been and is not being cured in accordance, with Section 501; then this Agreement shall, at the option of w' the Developer, be terminated as to such Separate Development Parcel only and ae to any other, Separate Development Parcel(s) for w,iir;h the Disposition Transfer of such Separate .. Da+veelopmeent Parcel is a condition' preece'dont (as met forth in Sees Lion 313 above) . Termination pursuant to this Section 600 shall be effectad by written notice to the Agenoy, and therenvor► risithe r the Agency nor the Deveeloper shall have any further rights• or ob1 i lations heermunder with res act to the . Separate Development Parcel or Parcels as to which the notice oZ termination aapliese except that if the termination is due to Ageency0s default (subparagraph (g) above) , Developer shall have such additional rights and remedies as are consistent with the other provisions of this Agreement. It is w understood that a termination of this Agreement, in whole or in part, shall not terminate Developer's interest in the Developer Parcel, or any portion thereof, pursuant to the . 54 0S/l'3/6S rINAL � r.. u ' J' „1 ,1 I lease attached hereto as Alitachment No. 6, as th" sraHe may have been modified pricr to the date of termination hareof pureuant ..to Section 301 of this Agreement and Sectid,n i, l kh& Zxhibit "H" of Attachatent No. 6. I J 09 Termination by the Agency In the Event that, prior to the deadline set forth in this Agreement for a Disposition Transfer of ac Sepurate Development Parcel, as net forth ih Section 313: (a►) the • Developer ' , (or any successor in interest) assigns, any of its' rights or liabilities in such s©parate Development ' Parcel in violation of this kgreamsnt rrd su'h failure or default is riot cu. ed in accordance with section 6011 c« . ' (b) the 'Developer and Agency fail to timely regraire/terminate - all " of the property interests/occupancies required to be ' acquired with' respect ' to said separate Development Parcel or the Pacific Hobilehome Park property in order .to allow development to pru. d -in accordance with the approved plans, and the Agency doers .' not timely elect to exercise itu power of eminent domain as needed to acquire the remaining ' inter- onto/occupancies , in. accordance with Section 201; or (c) the ' Developer -does not tinoly submit any of the plans, drawings, or related r-, docimenta , ` for that portion: o= the Developer 'Improvem*nts to be constructed With, respect to said separate Development ., Parcel . as required try ' Section 203 of = this 'Agreement, and such failure or �-+ defnt±lc is.' riot cured in accordance with section 601; or ` (d) the Developer . falls , to -'time! y, submit ;.. reasonably sa:.izfecfiory proof that ix hat; obtained financing cdmmitments for the develtpment of said 3earate Development Parcel, In 'accordance with Section 204 , and such failure or default is not cured in accordance with section 601; or 08/15/60 FINAL