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Robert L. Mayer - 1993-06-14 (7)
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(e) as to each Separate Development Parcel on which the Developer iu required to construct a hotel , the Developer fails to timely submit satisfactory proof that it ' has entered into or is prepared to enter into an agreement: with an acceptable hotel operator, in accordance with Section 205, and such failure or default is not cured in eNc;ordance with Section 601 ; or (f) as to each SQparafi a Development Parcel on -which than Developer is required to construct a hotel , the Developer fails to timely submit satisfactory proof that it has entered into or is prepared to enter into an agreement with an acceptable franchisor, in accordance with Section 206 ; or (g) the Agency reasonably determines that the costs required for clean-up or removal of all toxic: and hazardous substances on,, under, and with respect to said separate Development Parcel exceed the costs committed by the Agency pursuant to Section 312 and Par,3graph III of the Scope of Development ►Attachment No . 3) , and the Developer does not timely agree to assume the responsibility for payment of the excess cost; or (h) the Developer is in material default of any of its obligations under this Agree- rent with respect to raid Separate Development Parcel, and such default has not been and is not basing cured in accordance with SQotion 601; .-' then this Agreement shall, at the option of the A9tency, be terminated as to such Separate Development Parcel only and an to any other Sep�ixate Development .� Parcel (a) for which the Disposition Transfer of such Separate Development Parcel is a condition precedent (as out forth in Section 313 above) . Termination ;pursuant to this Section 609 shall be effected by written notice thereof to the Developer, and thereafter Neither party shall have any rights or obligationa hereunder with respect to said Separate ► Development Parcel or Parcel• as to which the notice of uernination applies, bxaept that if the termination is due to Develop*r's default (subparagraph (g) above) ,, Agency shall ti have iuch additional, rights and remedies as are consistent �,. 09/15/89 FINAL 1 I with the other provisions of this Agreement. It is 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 lease attached hereto as Attachment No. 6, as the same may ` have been modified prior to the date of termination here-of pursuant to .Section 301 of this Agreement and Section 1 . 1? and Exhibit "B" of Attachment No. 6 . G. [ §610] No Cr.oss7Defaults Subject to the Agency' s rights under Section 313 above, but notwithstanding any other provision of this Agreement to the con-rary, subsequent to either a Disposition Transfer of a particular Separate Development ?arcel or an assignment by the Developer of its interest in such Separate Development Parcel to an assignee permitted under Section 107 above, no default by the Developer or a permitted assignee hereunder as to any other portion of the Site shall be deemed a default by the Developer or a permitted assignee with respect to said Separate Development Parcel and no default by the Developer or a permitted assignee with respecu to said Separate Development Parcel shall be deemed a default hereunder as to any other portion of the Site. H. [ §611] Arbitration. 1. Disputed issues arising between the Agh*ncy „and Developer under this Agreement shall be resolved by arbitration pursuant to this Section 611 if, and only if, this Agreement specifically provides for resolution of suc:h disputed issue by arbitration. Notwitbotanding any other provision of this Agreement to the contrary, if the parties are involved ir,, a dispute subject to resolution by arbitration, a party who in good faith maintair',s suoh dispute shall not be deemed to be in default under this Agreement until the final arbitration decision is rendered, as provided in this Section 611 and, in the event such party is the losing party, such party fails to cure any default within the times specifically set forth herein or, if no such time is specified, within a reasonable time. A party desiring to initiate a permitted arbitration under this Agreement shed] give notice to the othpi- party specifying (i) the matter to be arbitrated, ( ii) the section of this Agreemeat pe,rmittirg the arbitration, and (iii) the name and address of the person designated to act: as arbitrator, which person shall be qualified to act as arbitrator in accordance With the , f provisions of paragraph 3 of this section 611. within fifteen (15) days after receipt of such notices the second party shall give notice to the first party specifying the name and address of the person designated to act as arbitrator on the second party' s behalf who shall be 06/15/08 FINAL 1 ' "ONO qualified to act as arbitrator in accordance with the provisions of paragraph 3 helow. if the second party fails to give notice to the first party of the appointment of the second party' s arbitrator within the required period, the appointment of the second arbitrator shall be made by application to the court in the same manner as provided in paragraph 2 of this Section 611 for the appointment of a third arbitrator in a case where the two arbitrators appointed by the parties, or- the parties, are unable to agree on the appointment of the third arbitrator. 2 . The arbiitrators chosen in accordance with the provisions of paragraph 1 above shall pron. ptly meat to attempt to resolve the disputed matter. If the two arbitratoro are ;unable to agree upon the question at issue within thirty (30) days after the second arbitrator was appointed, they shall then have E:Lfteen (15) days jointly `:o appoint a third arbitrator who shall be qualified to act i s arbitrator in accordance with the provisions of paragraph 3 below. If the two arbitrators are unable -,a agree upon t third arbitrator within such fif:teon (15) day period, th ` Agency and Developer shall then havo an additional fi.fte% n ( 15) days to select together the tha.:rd arbitrator. If the Agency end Developer are unable to agree upon the third arbitrator within the required period, either the Agency or Devaloper, by giving prior notice to the other party, shall have thirty (30) days to raquest the Pi:esJding .judge of the Superior Court for the County of Orange, State of California, to appoint as the third arbitrator an impartial person qualified to act as arbitrator is accordance with the provisions of pai:.agvaph 3 , and the other party Lwhall not raise any question as to the judge's full power and ! jurisdiction to entertain the application and make the appointment. The three (3) arbitrators sshall decide the dispute ( f f it has not. previously been resolved) by following the procedure sat forth in paragraph S of thin Section 6a.1. 3 . The arbitrators shall be chosen from a class r : disinterested expe_,ts qualified by trainj ng and .. experieYr.e to resolve the particular issue in dispute in an informed and effic:iant manner. 4. In the event of the failure, refusal, or inability of any arbitrator to act, he shall appoint his ! successox, provided, however, that any successor to the third arbitrator shall be appointed in the same manner as tho third arbitrator is to be appointed. The -arbitrators shall , if possible,, render a written decision within fifteen (15) days aftrar the appointment of the third arbitrator. A decision in which any two arbitrator* concur shall in all cases be binding and conclusive upon the parties. Each party shall pay the fees and expenses c,f its artiitrator and both shall �w 48/15/8t FINAL M� share the fees and expenses of the third arbitrator, if any. Each party shall pay the fees and expenses of its attorneys and any witnesses it may call . 5 . The arbitrators shall have the right to consult experts and competent authorltie6 skilled in the mat:tars under arbitration, but any such consultation shall be n+ade in the presotnce of both parties with full right to cross-examine. The arbitrators shall give a counterpart copy of their written decision to each party. The arbitrator shall have no power to modify the provisions of this Agreement (although the arbitrators shall not be prohibited from considering written agreements arod other evidence of the intent and purpose: of this Agreema-.13t) , and the jurisdiction of tha arbitrators ie limited accordingly. 6 . Where an issue cannot be resolved by agreement between any two araitrators, or by settlement between the parties during the course of arbitration, the issue shall. ae reaalv' ed , by the threes arbitrators in accordance with the fello,King procedure. The arbitrator selected by each of the parties shall prepare ad written proposed resolution of the dispute and the reasons therefor and give counterpart copies to each party and each of the other arbitrators , with the third arbitrator arranging for a simultaneous exchancle of these proposed resolutions . The third arbitrator she .1 select which of the two proi)..)sed recolutions moat cicasely approximates his determination of the issue. The third &rbitratar cha1l have. no right to propose a middle ground or any modification of either of rha two, proposed resolution. The resolution which the third arbitrator selects shall constitute the decision of the arbitrators and shall be final an:I binding upon the parties . 7 . The judgment or the award rendered in any arbitration initiated and cond,.,cted in accordance with `:his --- section 611 mate be entered as a judgment in any court of competent jurisdiction and sha1). be final and binding upon i the parties. The arbitration shall be conducted and determined at any Location in the City or in orange county, spon which the parties agree, in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association or its successor except to the extent such rules are mortified as set forth in this section 611. i i 08/16/88 FINAL j VII . [ §700) GENERAL PROVISIONS A. Notices , Demands and Cormunic.at ions Among the Partifs Written notices , demands and communications between the Agency a.Ad the ;ev% loper shall be sufficiently given if delivered by hard or dispatched by registered or certified mail, postage r .,paid, return receipt requested, to the principal offices ct the Agency and the Developer. , as applicable. Such written notices , demands and communications may he Bent in the Ban-=' manner to such other addresses as either party may from time to time designate by mail as provided :In this, Sectijts 701 . Any written notice, uemand or communication shall be deemed received immediately if delivered) by hand and shall be deemed received on tha fifth (5th) day from the date it is postmarked if delivered by registered or certified mail . B. [§702a Conflicts! of Interest zdc member, official or, employee of the Agency shall have any personal interest, direct. or i.n,7s.a7mct, in this Agreement, nor shall any member, official ' 'or employee participate to any decision relating to the Agreement which affects his or her personal interests or thef intrerestb of any corporation, ' •artnershi.p or association in which he or she is directly or indirectly Interested. C. [1703 ] Enforced Delay; ExtenEtion of Timers of Performance: In addition to specific provisions of this Agreement, performance by either party hereunder shall not be -� dramed to be im default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to: war; insurrection; strikes; lock- outs; �kiotu; floods ; earthquakes or other geologi7ai calamities; fires; casualties; -acts of God; acts of the public enemy; epidemics; quarantine restrictione; freight embargoes; lack of transportation; governmental restrictions R or priority; litigation delays beyond the reasonable contra`. of the party claiming an extension of time to par,fume; unusually severe weather; inability to secure necossary labor, materials or ' tools; delays of any contractor, subcontractor or supplier; acts or omissions of an other pas y t acts or failursrr to act by any public or gov�z:nn anta l agency or entity (other than the acts or failureo to act of the Agency which shall not excuse performance by the Agency) ; or any ether causes beyond the reNsonable control or without 1 OS/13/80 FINAL the fault of the party claiming' an extension of time to perform. The failure by the Developer to timely obtain financing for its undertakings pursuant to this Agreement shall n;Dt be e:ccused pmrsnant to this .Section 703 . Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of the enforced delay only ai:d shall commence to run from the time c:f the commencement of the Gauss, and shall commence upon notice by the party claiming such extension, which notice shall be delivered within thirty (3C) days after commencement of the cause . Times of performance under this Agreement may alsa be extended in writing by the mutual agreement of Agency and Developer. The Executive Director of the Agency shall heve thQ authority on behalf of the Agency to agree* in writing to extensions of times of performance (but: excluding extensions in the dates for Disposition Transfers and commencement of construction) for a period or periods not to exceed ninety (90) days . Not by way c:? , ► 1.1nitation of the foregoing, tize Dev31operts deadlines for cl,jaiig 6ach Disposition Transfer, as set forth in Section 313 , shall be extended to the entent that the Dnveloper has tiivaly complied with all of its - obligations hereunder with respect to such closing (or would be prepared to so comply) ; but the closing is delayed dues to an Agency dsfault or failure to perform hereunder. In such event:, the deadlines in Section 313 with respect to such closing only ( including without limitation the times for making the payments and -Cho extension periods) shall be extended for the period of the ealay. D. [ §704 ) Non-liability- �of_ Officials and Employees of_the Aaenar No member, official. or employee of thn Agency shall be personally liable to the Developer, or any successor in interest, in the eve:,.,t of any default or breach by t:iie Agency or for any amount which may become due to the Developer or its success6ts , or on any obligations under the terms of this Agreemant. E. [§703] Submittal of Documents to the Agency for AP nova Whenever this Agreement; requires the Developer to submit any plan, of .drawing, document, or other matter to the Agancy for appioval, which matter shall be deemed approved if not acted on by, the Agency. (or its Executive Director) within the ' speeified time, said matter shall be de*zod ' apprcv*4 only if the request for approval: has been accompan.4 ed by a letter to the Executive Director referencing -+�1- 08/id/88 FINAL ! s this. Section 705 of the Agreement and stating that they are being submitted and will be deemed approved unless rejected within the stated tine . F . [ §706 ] Amendments to this Agreement Tho Developer and Agency agree to mutually consider reasonable requests for amendments to thin Agreement which may 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 terms included herein. Fairer modifications to this Agreement which do not materially i axfect the rights or obligations of the Agency may he approved I>y the .Executive Director without the necessity of additional action by the governincj, boards of the Agency. G. [ =7 07 ] Cooperates in the Event of Legal Ch�p9e In the event nf any legal challenge instituted ;ay any third party challenging the validity or enforceability of any provision of this Agreement, or any approval by City or Agency referenced in section 203 hereof including but not limited to Approval of the "change of ,use" of the existing mobilehome park on the Developer Parcel , the Relocation Assistance: Plan approved therefor, and the individual agreements to be entered into between the Agency and individual mobilohome tenants anti owre,-s pursuant thereto) , or any other action by either party hereto in performing hereunder or under the aforoment'ioned approved Relocation Assistanca Plan or individual agreements referenced therein, as the came ray be amended from time to time, -the parties hereby agree to cooperate in defending said action as set forth in this Section 707 . The Agency shall have the right, but not the obligation, to defend any such action; provided, that without the Developer's prior written consent, which co;isent shall not be unreasonably withheld, the Agency shall not allow any " default or judgment to be taken against it and shall not Omar into any settlement or compromise of any claim which has the effect, 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 Developer's rights hersundere In addition, the Agency shall provide reasonable assisOnce to the Developer in defending any such action, ouch assistance to include (i) making available upon reasonable; notice, ' and 'at no cost to they Developer, Agency `t officials and employees who are or may be witnesses in such I -6Y- 08/ls/80 FINAL ..A i I action, and (A) provision of other information within the custody or control of the Agency that is relevant to the subject me.tter of the action. The Developer shall have the obligation to dcfend any such action ; provided, however, that thi6 obligation to defend shall not ba effective if and to the extent that the Developer determines in its reasonable discretion that such action 3s meritorious or that the interests of the parties justify a compromise or settlament of such action. In this regard, Developer's obligation and right to defend shall include the right to hire attorneya and experts n3CRaeary to defend ( subject to approval by tho Agency) ,. the right to process and settle reasonable claims, the sight to enter into reasonable settlement agreements and pay amounts as required by thn ter;as of such set:tleraerdt agreements, and the right 4o pay any judgments assessed against Developer, the Agency or the City. If the Developer defends any such action, as set forth above, it shall indemnify and hold harmless the Agency and City from and against any claims, losses, liabi.lities, or damages assessed or awarded against either of them by stay of judgment, settlement, or stipulation, but not including any litigation expenses - or attorneys fees fncurred by either the City or Agoncy in defending said action as set forth hereinabove. Notwithstanding any other provision of this Agroement to the contrary, all costs and expenses incurred by the Daveloper in defending any litigation aril my out of the processing, approval , and/or implementation of they "change of use" of the pnisting mabilehome park on the Developer parcel, the relocatior of the tenants therefroa, and payments to or for the benefit of such persons ©hall be reimbursable pursuant to Section I1. I of the Scope of Development (Attachment No. 3) and Paragraph 5 of the Method of Financing (Attachment No. - 5) . Ir the event any such litigation involves other claims or issues, the reimbursement due to the Developer shall be a fair proration based upon, the percentage of ;Ame and expense allocable to thor-? issues and claims for which the Developer is entitled -to reimbursement and those claims and issues for which the Developer is not entitled to reimbursement. Notwithstanding any provision herein to the contrary, should any action be brought with respect to any claiaa that this contract violates section 614 of the City of •-= Huntington Beach City Charter a%%I/or the California ]Public contracts code .by virtus of any reimbursement provision herein, the developer agrees at its own non-reimbursable axpens* to defend, indemnify and hold the City and Agency � harmless due to any failures of the City or the Agency to follow the full public bid rerciuirements as to the reimbursable portion@ of the project, Further, Developer �- aicknowledgeu that in the event that the public bidding �63- 08/13/88 1"INAL i ._i process in judicially held to be required for any improvements which have already been constructed, the City ' arid/or the Agency may be enjoined on otherwisQ ordered to withhold the reimbursement payments hereinabove Ictherwise required. H. (J. 708] Attorney's Flees, If either party to this Agreement is required to initiate or defend litigation in any way ccnnncte3►d with this Agreement, the prevailing party in such litigation, in addition to any other relief which maiy be granted, whether legal or equitable, shall be entitled to reasonable a ttorney' s fees. Fxoept as may be expressly provided elsewhare in this Agreement, if eithex party to this Agree went is required to initiate or defend li-i-lation with a third party because of the violation or alleged violation of r IIi J 'VI t I i 0811.6lf IS FZNA.ra i �w I Gomm ; .. ,y any term or provision of this Agreemen•:, or obligation of the other party to this Agreement, then the patty su litigating � shall be entitled to reasonable attornp;'s fees from the other party to this Agreement. Attorney' s foes shall include attorney-s fees an any appeal , and in addition a party entitled 4*o attor,ieylls fees shall be entitled to all other reasonable costs for investigating such action, asking depositions and discovery, and all other necessary costs � incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such ue.tion and shall be onforceable whether o;: not such action.: is prosecuted to J udgment,, ~� Y. [§709] Saverabilit:y Tn the event any germ, covenant, condition, provision, or agreement contained herein is held to be inva?_,'.d, void, or otherwise unenforceable by any court of comp:&nt jurisOiction, such holding shall in no way affect the validity or, enforceability of any term, covenant, ' condition, prevision, or agreement contained herein unless thi& Agreement expressly provides to the contrary. MI . [§500) ENTIRE AGREEKEt, � INTERPRETATION., WAIVERS, APPROVALS This Agreement: is executed in :till!_ (9) diipligate originals, each of which is deemed to be dal original ., �Chis Agreement includes pages 1 through ' 64 and Attachments 1 through 9 , which constitutes the entire understanding and agreement of the parties . This Agreement may be executed in counterparts which shall have full force and effect, This Agreement integrates all of the terns and condi- tions mentioned herein or incidental hereto, and supersedes all tiw'gotiationa or previous agreements between the parties or their predecessors in interest with respect to all or any w.. part of the subject matter hereof. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not bA construed for or against either party by reason of the authorship of this Agreement or any other rule of f. construction which might o..aarwiie apply. The So.-,-tion readings are for purposes of convenience only, and shall not as construed to limit or extend the meaning of this Aq eement6 d 00/13/88 71MAL w.. f I i All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authcritiAg of the t Agency and the Developer, and all amendments hereto must bit in writing and signed by the appropriate authorities of the ' Agency and the Developer. In any circumstance where under this Agreement either party is required to obtain the consent o1 appz'aval. or the other party in fulfilling any agreement, covenant, provision, or condition contained in this Agreement, such Consent or approval shall not be unreasonably withheld, conditioned, or delayed by the party fr • m whom such consent or approval is sought. i ix. ( §9003 TIME FOR ACCEPTANCE OF AGREEMENT' BY AGENCY This Agreement, when executed by the Developer and -, delivered to the Agvncl►, must be authorized, executed and delivered by the Agency on or before thirty (30) days after signing and delivery of this Agreement by the Developer or this Agreement shall be void, except to the extent that the Developer shall consent in writing to a further extension of time for the authorization, execution and delivery of. this Agreement. The date of this Agreement shall be the date when it shall have been signed by tha Agency . I 08/15/d e F1NAIi Fi i I7.4 WITNESS 0HEREOF, the Agency and the Developer have sinned, this Agreamant on the respective dates set forth below. 1988 REDEVELOPMENT, AGENCY OF THE CITY OF HU. NGT� BEACH _} By airman ATTEST: Agency Secretary . _�. APPROVED AS TO FORS!•: IN IATED AID APPROVED AS TO CON NT �- W� . A eno S ec a1 Ccuunna 1 De C: t Adm n et:rator - 9 y P L Y / Red elopment RTVIEWED AND APPROVED APPROVED: AS TO FORM: _..; � y Attorney/Agency Attorney City Administrator/E::ecutive Director THE FOBEAT L. MAYER TRUST OF 198" -.9 8 8 By crt L. Mayer, tad 6/3.12/�65 80-0001/001 ._1 08/25/89 FINAL +r ATTACHMENT NO. 1 A -, SITE MAP CITY REACH MAINTENANCE FACILITY me 141-1z' 9 JL�zgo 00 DEVELOPER PARCEL Qo , - w, j REACH BOULEVARD REMNANT FARCEL , i P'IEPAltE4 fT: NM.�'11r+IbwMw►� .1irM.I� �rie��M Irt� a . PAGE 1. ar 1 I 1 .aw f ATTACHMENT NO. 1T3 Y.� G.A L. XD I✓ S G K :L 1�71 m C7:IN_ I ALL THAT CERTAIN LAND IN THE CITY OF HUNTXNGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED I.S FOLLOWS : THAT PORTION OF SECTION 14,, TOWNSHIP 6 SOUTH RANGE 11 WEST 3N THE RANCHO LOB; ROLSAS, AS PER AIAP FILED IN BOOK 51, PAGE 14 OF MISCELI',ANEOIIS MAPS 114 THE OFFICE. OF THE COUNTY RECORDER OF SAIU COUNTY, DESCRIBED AN FOLLOWS : BECIN2iING AT THE INTE�:SSCTION OF A LINE THAT IS PARALLEL WITH AND 50.00 FEET WEST OF THE EAST LINE OF SAID 00ECTION lei WITH THE NORTH LINE OF THE SOUTH HALF OF THE NORTHEAST QUARTER OF SAID SECTION; THENCE SOUTH 0° 44 ' 22'- EAST 1820 . 36 FEET,- ALONG SAID PARALLEL DINE TO THE NORTH LINE. OF THE LAND DE;CRIL?D ZI BOOK 2351 , PAGE 5 OF OFFICIAL RECORDS OF SAIU COUNTY; THENCE SOUTH 74 w 34 ' 12" WEST 45,01 FEET ALONG SAID NORTH LINE TO THE NORTHEAST LINE OF TH8 'LAND M;CRlB9D AS PARCEL 2 114 BOOK 826, PAGE 379, SAID OFFICIAL RECORDS; THENCE NORTH 536 05 ' 49" VEST ).72.33 FEET .ALONG Sfi[D NORTHEAST LINE TO THE WEST LINE OF THE LAND DESCRIBED 1N BOOK 2610 PAGE 41 OF DEEDS, RECORDS OF SAID COUNTY; THENCE NORTH 0' 44 ' 22" VEST 12. 63 FEET ALPNG SAID WEST LIME TO THE NORTHEASTERLY PIGHT OF WAY LINE.: OF PACIFIC COA;11T HIGHWAY AS DESCRIBED 1N DOOK 455, PAGE 400 OF SAID OFFICIAL RECORDS; THENCE I4ORTH 53' 05 ' 49'' MST 2242. 93 FEET ALONG SAID N')RT'HEAST LIME TO THE EAST LXNE OF THE LAM DESCRIBED IN BOOK 13500, PAGE 1394 OF' SAID orFIC:IAL P.ECORDS; THENCE ALONG TOE BOUND&RY OF SAID LAND THE FOLLOWING COURSES; SOUTH 3. 46 ' 53" EAST 5. 78 FEET TO A POINT ON A NON-TANGENT 1250.00 FOOT RADIUS CURVE THAI' 1S CONCAVE SOUTHWESTERLY A RADIAL TO SAID POINT SEAR3 NORTH 32' 06 ' 11" :AST; NORTHWESTERLY 51. 48 ' FEET ALONG SAID CURATE THROUGH t: CENTRAL ANGLE OF 2' 21' 34" ; NORTH 60* 13' 230 NEST 71� 94 FEET; NORTHERLY 45 . 79 FEET ALONG A 27 . 00 FOOT RADIUS CURVE THAT IS CONCAVE EASTERLY THROUGH A CENTRAL ANGLE: ` OF 97' 09 ' 34" ; NORTH 36 ' 54 ' 11" FAST 141 . 92 FEET TO THE NORTHEAST LINE OF THE LAND DESCRIBED AS PARCEL 1 IN BOOK 80201 PAGE 73 OF SAID OFFICIAL RECORDS; THENCE NORTH 530 05' 49" WEST 1:. .UO VEST ALONG S'JD NORTHEAST .'SINE TO SOUTHEAST RIGHT OF WAY i LINE OF HUNTINGTON AVENUE 60.00 :EET IN WIDTH; THENCE NORTH 360 _ 541" 110 EAST 147. 95 FEET ALONG SAID RIGHT OV WAY LINE TO AN ANGLE POINT THEREIN; THENCE NORTH 0`' 42' 59" WXST 21.81 FEET ALONG . c P►ID RIGHT O ' '.TAY TO 'tHE NORTH LINE OF SAID SOU.3 HALF; THENCE NORTH 99' 42' 58w EAST 1905. ,0 FRET TO THE POINT OF BEGINNING, � �_ HA nIS JE, CO 3118 VXPYR.hTI011 DATE: JUri1E 30 1983 NANO ATTACHMENT M0. u v QgLl PAGE I OF 1 LO--0222 Np PIo, 311a 134.2 201 1 I I I f . o. - 1 _ I Z M . 1 . \ Y t 1 r Yr ♦ • 1 +4t • � w f ` • •A 40 W. . 1 ... � w 1 ATI ACHIMENT No. 3 SCOPE OF DEVELOPMENT 1 . ARCHITECTURAL AND DESIGII : The commercial Portion and the Residential Portion of the Site ahall be designed and developed as intiagrat.ed complexes in which the ;auildings will have architectural excellence , both '.ndividually, as well as in the context of the total commercial complex and _esidential. complex, respectively. The. improvements to be cons4ruuted on the Site shill be of high architectural giial .ity, shall be well lands,-.-aped, and shall be effec:tivelti ant' aesthetically designed. The shape , scale of volume, exterior design, and exterior finJah of each building, structure, and other improvement must be consonant with, visually related to, PhVSicailly rela.ted to, and an enhancement to each other and, to the extent reasonably practicah? --, to adjacent improv- rents existing or planned within the Project Area . The Developer''s plans, drawings , and proposals submitted to the Agency for approval sbali describe in reasonable detail the architectural character intended for the Developer Imp#roveanent3. The open spaces between buildings. where they exist shall be designed, landscaped and developed with the same degree of excellence. The total development shall be in ccnforni•ty with -4he Redevelopment plan for the Project Area. II . DEVELOPER'S RESPONSIP_ILITIES : A. Developer ztnprovements . The Developer agrees to develop and construct, or cause the development and construction of the improvements (herein the "Developer Inprove- ments") defined belt-v, or such additional size, intensi - ty, and character of improvements as nay be permitted a,ndl approved under applicable land aste regulations of the City, and Agency and in accordance with the previously issued development approvals referenced in Section 203 of this Agreement, he plans yet to be approved by the City and Agency pursuant to Section 203 , and t 4e Development AgTeernei it (Attachment No. 9) , as the saga may be amended from time to time in accordance herewith, Notwithstanding the, foregoing, it is understood that Developer may request approval of plans or permits which differ from the approvals previously granted are!/or this Scope of Do-via?opment based upon refinements in planning or changers in market or :*inancial feasibility between the Effective Date and the ATT7 CUM NO. 3 page 1 of 20 08/15/88 FINAL F e - i . date of victual development ,, provided that such plans shall i.n all events be corsistent with the Downtown Specific Plan and other Genera?. Plan and zoning reauireme:nts applicable to the Site as of. the Effective Pate of this Agreement . The Agency agrees to act eason:ably ir. c!:�vieo -.:ig any cosh reque.-,t by the Developer based u;ion legitimate land use planning concerns and any effect that changes in the scope of the development m4 y have = the Justification fcr the Agency I s r' ; .narcial contrt;aut.ion thereto ( as reflected in this Scope of Development and the Method of Financing (Attachme-rit- No. 5) ) . In the event of any i*;consistency between the appro:led plans and this Agreement, including without limitation. this ,Scope of Development, the approved Ftans sha: 1 govern. In the Event Agency reazionably determines that a change in the scope of the developm,,e;t from what i.s contemplated on the Effective Data warrants a modification of the terms of the Agency's financial contribution (as reflected in this Scope c f Development and the Method of Financing (Attachment No. 5) ) , .Agency agrees to act re;.sonably in X: making any avendr.,ents to thin Agreement necessary to accomrr-date such change . With specific regard to the Residential portion of the Site, the 7e•veloper and Agency each recognize that the Developer is required to obtain Planning Commission approval c..L,7 a. Conceptual Site Pla.i 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. Thin Develop ,-A, and Agency hereLy agree twat the Conceptual Residential ri,:::isina Exhibit attached hereto as Exhibit 2 is prouridp.d by the Developer for informational purposes only to allow the City and Agency to analyze the nature of t:ie planned development of the Residential Portion. The minimum total development costs listed below are intended to cover all direct and indirect costs incurred, including without limitation: direct costs for construction of buildings and improvements, and installation of landscaping ; financing cobtn , faes, and interest 0,1r-ing construction; the purchase price for Separate . - velDrment Parc:elr within the Residential Portion) , a•- -hi.tectural, planning, and engineering costar broker's fees, m?rktating expenses, and leasing commissions ; costs f•�r. furnishings, fixtures, and equipment (11ME11) to be provided by the Developer (but, except as to they hotels, not including any ME to be paid for Ly a tenant) ; costs for off site " improvements which are the Developer's responsibility tknd which are U-SAWMAXIM, NO, 3 page 2 of 20 08/15/88 FINAL re uiread to be constructed in the phase: or development in question ; applicable governmental fees and charges ; legal expense; pre-opening expenses; working capital fo- a period not to exceed one ( 1. ) }gear after the completion of construction ; and all -)they- costs reasonably related to tho development. `.The minimum development costs listed below for. FF'r:, for the Separate Development Parcels on :.hick Hotel: are to be constructed are intended to cover all item, of furnishings and equipment for all quest rooms, restaurant. and lounge facilities, meeting rooms , and other public arJ employee areas , including, .in general, but not limited tr, all items attached to or set within or upon the finished walls or surfaces of the Hotels, but excluding computer and electronic equipment . If any item of FF&E is leased rather than purchased by Developer, the fair market ` value of such leased item shall be included for purposes of computing the development costs for FF&E. �osL`s are itemized in 198a constant dollars, and shall increawe in ' aubssequont years in, accordance with .increases in the const.ructi:-., cost index in the 'En * eerincr News Record (car other available ' index selected by the Agency and Developer) which ss most comparable to the type of construction involved.. The ,Site will be developed in six (6) commercial phases and three (3) residential phases . The boundaries ' letwe%n .nd among thn phases of development shall be generally consistent with the phasing plan in Exhibit 112" hereto. It is understood that phases may be developed concurrently, subject to the limitations set forth in Se:tion 313 of this Agreement . The six (6) commercial phases and the three (3) residential phases are described generally below. 1 . commercial Port. .on . The Developer Improvements on the C=mercial Portion of. the Site shall be in conformity with the approved Master Plan for the Co:msrcial Portion (which consists of the applicable portions of the "Technical Site Plan, Project Description and Site Stat.istics10 which is attached as Exhibit 1 hereto) and shall include: (a) Phase 111 - SeEarate Development Parcel No. 1 : An approximately 300-;.00m first-class hotel an an approximately 3 . 6 acre parcel , with a total development coat of not less than One Hundred Thousand dollars ($100, 000. 00) p*r room, exclusive of land, including an amount equal to or greaten than Fifteen Thousand Dollars ATTACHUNT NO. i 08/15/88 FINAL !aq• 3 of 20 ANN worm ', j$15 r 000 . 00) per room for an F F&r in the hotel . k h (b) Phase 2 ,• Separate `.)evelo;_)ment Parcel. No. 2 : A recrea9:i.an/CFnnis/health and rfitness facility , -Irluding a swimming Fool, exe.rcise/weight ini.ng� roon , sauna , and spa on an approxi- nately 3 . 5 acre parcel., with a total development cost of not less than Three Million Nine Hundred Forty Thousand Dollars ($3 , 940100C . 00) . (c) Phase 3 ; Separate Develol2ment Parcel No. 3 : A first-class hotel. with h conferience gaol ties , with a minimum of 450 rooms end a maximum of 600 rooms, located on an approximately 2 . 9 acre parcel , and with a total development cost of not less than one Hundred Thousand Dollars ($100, 000 . 40) per room, exclusive of land, including an amount equal to or greater than Fifteen Thousand Dollars ($15, 000 . 00) per room for all ?F&E in the hotel . ;}1 (d) Phase 4 , Serrate Development Parcel No. 4 : An all-suite hotal with min mum of 225 r_ooins and a maximum of 250 zooms, located on an approximately 3. . 2 acre parcel., and with a tatal development cost of riot less than Eighty-Five Thousand Dollars ($85 , 000. 00) per room, exclusive of land, including an amount equal to or greater than Fifteen Thousand Dnllars ($1.5 , 000. 00) per room for all FF&E in the hotel . (e) Phase 5 ; Separate Development Parcel No. 5: A speh alty retail center on 'an approximately 3 . 8 acre parcel, with approximately 75, 000- 99, 000 square feet of improvements with a total development cost of not bass than Six Million Five Hundred Thousand Dollars ($6, 500, u0A . 00) , exclusive of land. _ ( f) Phase 6 ; Separate Development Parcel No. 6: A luxury hotQ1 with a minimum of 400 rooms and a maximum of 450 rooms located on an approximately 5 acre parcel , and with a total development cost of not less than one Hundred 'xhousand Dollars ($100, 000. 00) per room, exclusive of land, including an amount equal - to or greater than Fifteen Thousand Dollars Page 4 of 20 08/15/98 FINAL ($15 , 000 . 00) per room for all FF&E in t=he� hotel . 2 . Residential Portion. The Developer Improvemant:s on the F7.eElden lal Portion of the Site shall bE pnased in general. Conformity with the "Conceptual Residential Phasing Exhibit" attached hcret c as Exhibit 2 and shall include : (a) Phase 1 ; .Separate Development. Parcel No . 7 : Appxoximately one-half (1/2 ) of 'the resi- dential units to be constructed :gin the Resi- dential Portion (4381 based upon the maximum development of 875 residential units contemplated in ':he Supplement to EIR 82-2 ) , with a total d svelopment c as .: of not less than Eighty- Seven Thctisand Dollars ($87 , 000 . 00 ) per residential unit. W Phase 2 ; Separate Development Parcel No. 8 : Approxir,,ately oi,ip-four::h (1/4 ) of the r es den- t.ial units to be cons+ruc"L:ed on the Residen- tial Portion (219, based upon the naximum development of 875 residential units contemplated in the Supplement to EIR 82-2) , with a total development cost of not less than Eighty-Seven Thousand Dollars ($87 , 000 . 00) per residential unit. (c) Phase 3 ; Separate Developmenr. ;Parcel No. 9 : Approximately one--fourth (1/4) oZ the residen- tial units to be ,onstructad on the Residen- tial Portion (218 , based upon the maximum development of 875 residential units contemplated in the ,Supplement to EIR 02-2) , with a total development cost of not less than Eighty-Seven Thousand Dollars ($87 , 000. 00) per residential unit . 3 . Parking. The Developer shall provide all off- street parking required pursuant to the applicable provisions of the Huntington Beach ordinance Code (the "Code"), including any permitted modifica- tions, per the approved plans . The Agency has agreed that the parking for the Phase 1 hotel (including guest rooms, 1.oungeei, meeting rooms, ball rooms, and guest-serving retail uses) shall be determined on the basis of the Agenc to parking requirement for hotels of. 1 .1 parking spaces per quest room, pursuant to ArtiLIs 9606(a) (N) of tho Cori. If the Agency determines A 110. 3 Page b of go 08/15/88 FIRAL W— hile aft:ei the Phase J. hotel is completed and c;perating that the parking is not adequate, tho Developer agrees t_a cure such deficiency by providing additional parking (above the Code requirement) in the subsequent commercial phase or phases . The Agency ar:d Developer agree to address such narking deficiency by obligating such subsequent ro7mercial phase or :phases to provide joint-use or shared parking for the benefit of the Phase 1 hotel. . Parking for the other hotels planned for the Commercial Portion (Phases 3 , 4 , and 6) may be handled in the same manner. . Parking de.:.iciencies may not be cured by providing additional parking along the beach side of Pacific: Coast Highway. .4 . miscellaneous Site Improvements . The Developer shal). provide all landscaping, open areas , drive- Ways, and other incidental on-Site improvements required for. each Separate Development Parcel as development occurs, in accordance with the approved plans. In this regard, the Agency acknowledgos that the purpose of the Downtown Specific Plan for District #9 (which encompasses the Commercial Po+;tion of the Site) is, as stated therein, "to enccurage large , coordinated development that is beach-oriented and open to the public for both commercial and •recreati�+nal purposes . " In consideration of (i) the master-planned nature of the Project, (ii) the approved master V.te Plan for the corrime;-dial Portion of the Site, and ( fii) the terms of this Agreement, the Agency hereby agrees that the maximum intensity, maximum site coverage and open space requirements for the Commercial Portion of the Site sha] 1 be applied on an aggregate ba►sisI and shall not be applied. separately t e$ch Separate Development Parcel therein, so long as the proposed ,'*nprovements for the Separate Development Parcel t,.icn in question • are in conformity with the approved Corunercial Master Site Plan. 5 . Walnut Avenue_ Extension and the 11S2ur" Street. Walnut Avenue shall be extended from LI s planned intars:cection with Huntington Street across a portion of the Pacific Mobilehome park property adjacent to the Site and through the site to Beach Boulevard, onsistent With the Precise plan of Alignment for walnut Avenue previously approved by the City. The north-mouth connector street between commercial Inhanea 3 and 4 (the "spur" street) shall ... ATTACNKM NO. S Page i of 26 08/15/88 VINAL 1 'ti axtend across a portion of the Si'L:e . f ror Pacific Coast Hirihway to Walnut Avenue , between the Phase 3 commercial. cevelopment (Sieparlte Development :parcel No. 3 ) and the Phasc .1 commercial. development (Separate D�2velopmert Parcel No . 4 ) , is shown: on the approved Master Plan for the Commercial Portion . Walrus; Avenue and the spur street—--hall each consist of approximately 80 feet of pavement, includIrag the landscaped median strip, within 90 feet of right-of-way a_,d shall include (i) traffic signalization a:: the intersections of Funtington/ Walnut , Walnut/"spur" street, Walnut/Beach, and "spur" street;PCH, (il) median landscaping and perimeter landscaping designed to enhance the quality and aesthatic character of the Developer' s development on the Site, and ;iii) all of the curbs , gutters, sidewalks, street lights , bus benches, storm drains , utilities, parkway landscaping, and other required improvements in the street right-of-;gray. Developer shall advance the costs ror the Walnut Avenue a.na spur street right-- of-way improvements which costs shall be reimbursed in acc:ordanca with paragraph 5 of the Method of Financing (Attachment No . 5) . The extension of Walnut Avenue shall be phased as follows: ( i) the first phase shall be. the stub-in from Huntington Street to the area adjacent to the rear of the Phase 1 hotel (Separate Development Parcel No. 1) , and shall be accomplished prior to completion of the Phase 1 hotel ; and (I.i) the bal..ence of the const,:uction shall be accomplished by the r^mpletion. cf the Phase 3 commercial developicsnt (Separate Development Parcel No. 3) . G. Miscellaneous Public Imeroyements . The Developer shell be r®spons ble for the following limited and specific off-site public improvements and site: work: (&) A pedestrian overcrossing of Pacific Coast Highway in the general location of the Phase 3 commercial development (Separate Development Parcel No. 3) , if incorporated into the approved plaria (ant Cal Trans provides its approval) . Said overcrossing shall be in conformity with the City' s existing Downtown Design Guidelines ands Ca1Trans minimum design standards as described in section 7-105 of the state of California Highway Desigri ATTACUSHT NO. 8 Page 7 of 80 08/25/88 FINAL J 1 1 1 Ian:taI (using pedest:riari -only design standards) . In the event that: the City or Agency , through the-, plan approval process or otlic;:wi:�e , rec�i.re the Develc,per to construct a pedestrian overcrossing in excess of the foregoing standards or requirements , any additional c► st a"tributabl.e to such excess standards or requirements shal.i• be the responsi- bility of Agency; Devpioper shall advanrf- the r:o^L5 w;zich shall be reimbursed in accordance': with paragraph 5 of the Method of Financing (htt";_tchment Na. 11) . (b) At the Developer' s s option, an additional nedestr.ian overcrossing of Pacifica Coast Highway in the general ?ocati On of the Phase 5 conunercial development (Separate Development Parcel No. 5) , with said overcrossing to be consistent, with the overcrossing referenced in subparagraph (a) and in conformity with the engineering and design stand- ards referenced therein, and with any "excess" cost to be reimbursed by the Agency as provided therein and in paragraph 5 of the Method of Financing (Attachment No . 5) . (c) The following additional public improvements : (i) any street widening required arou*.d they perimeter of the sil•e ; (ii) curbs, gutters, sidewalks, street 1.i .,;' street furniture, and landscaping within f.,::.►l fc rights-of-way on the SJte; (iii) sxgnalization improvements or modifi- cations at the intersections of Beach/P,�H and PCH/ Huntington Street; ( iv) extension of the city domestic water line ;rom its existing termi;nas ►3t Alive and Third Streets to the Site; and (v) extension of all other utilities required for development of the Prod--ct from their exi.-titing locations at the perimeter of the Site acaoss the pablis rights-of-wLy on or c Itcent to the Site an4 each Separate Development Pa..os 1 thereof. To then extent any of the uti ities required to be instal]ed by the Developer must be oversized to accommodate development o; uses off of the Site , the Agency shall pay the Developer for the incremental additional cost et:tributabla to wuch oversizing within thirty (30) dayfa after receipt of invoice; otherwise, the Developer stall advance all of the casts subject to reimbursement from the 1 Agency in accordance with this subparagraph (c) as ago provided herainbelow and in paragraph 4 or 5 of the Method of Financing (Attachment No. 5) 1a ATTA1Cltyt2 NT NO. 3 aS/is/ae FINAL i (d) In connc�ctian with tt�a preparation of each Separa';cr Developments Parcel For construction of the. r Developer impJ:ovements , the Developer shall reabandon any existing abandoned oil wc11 :: oil such parcel to the i hen--current standards of he California Division of oil and Gas , The Acerlcy ' sharill, 1:e.unburse all of the costs for such ..vrk in accordance with subparagraph (a) below and paragraph 5 of the Method of Financing (At4ac2imani: (e) Prior to the Effective Date of this Agreement, the Developer has entered into a contract for engineering and design services with tho firm of Fuscoe, Williams, Lindgren and Short, civil Engineers, for the extension of Walnut Avenue from its planned intersection with Huntington street across a portion of the Pacific Mobilehome Part pi operty adjacent to the Site and through the Site to Beach Boulevard . The Agency's Executive Director has reviewed and approved such contract . Prior to entering into any additional contract for the planning, design, engineering, or construction of any of the work required to be reimbursed in accordance with paragraph 5 of the Method of Financing (Attachment No. 5) (i . e. , the Walnut Avenue and spur street improvements (including the utilities to be located in the rights-of-Fay of such roadways) , the extens4.on of the City domestic water line from its existing terninus at olive and Third Streets to the Site, the reabandonment cf the evlstiny oil wells on the Site, and, if the City or Agency require the Developer to design either of the pedestrian overcrossings of Pacific Coast Highway to a standard in excess of what is specified in subparagraphs (a) or' (b) above, such improvements as well) , the Developer shall also first submit a copy of each such proposed contract to the Agency's Executive Director for approval. . Prior to entering into any construction contract for any such work, the Developer shall first obtain a mini r um of. three (3) bids; ;:rom qualified and responsible contractors , and shall submit such bids to the Agency's Executive Director for approval . The Developer's overhead or management fee for such work shall not exceed six percent (6%) of the w balance of its costs and Developer shall not be paid any amount for profit on said portion of the work. It 13 understood and agreed that the ,y Developer may enter into contracts with respect to all or- any portion of the work required to be paid ArTACMW NO, 3 pwgi 9 of 20 ..Wl► or reimbursed by the Agency pursuant to Paragraph 5 of the Method of Financing (Attachment: no. 5) which contracts incloade work beyond the scope of. the Agency's reimbursement obligation in such Paragraph 5 of the Method of Financing. In such event , the Developer shall , to the extent practicable, require each proposed Contractor to separately bid the p rti.cr. of its work required to be pain by the Agency pursuant to Paragraph 5 of tha Method of .Financing from the portion of tlle work required to be paid by the Developer. If it is not practical to separately bid the work on this basis, the Agency and Developer shall agree upon a fair and reasonable allocation of hosts between that portion of t1he work rt-Lruired to be paid or reimbursed by the Agency pursuant to Paragraph 5 of the Method of Financing and that portion of the work required to he paid by the Developer. It is further understood and agreed that the Developer shall comply with applicable requirements of law relating to such contracts , including without limitation non- discrimination and prevailing wage requirements. After the Agency has approved a contract:, the Developer sha:l not authorize any extra work or change orders which would increase the amount of the Agency' s payment or reimbursement obligation pursuant to Paragraph 5 of the Method of Financing without first obtaining the Agency' s approval ; provided, however, that in the event of emergency work or if the Developer reasonably determincs that the delays in obtaining Agency approval would result .in additional. costs being incurred, the Developer nhall be entitled to approve such change orders or extra work as lo:.ti as the overall scope of work ,',s net thereby increased and Developer promptly notifies Agency of the action tr.ken . In all circumstances, tno Developer agrees to act reascn3bl.y to have the work required to be paid or reimbursed by the Agency pursuant to Paraegraph. 5 of the Method of financing completed at a reasonable Cost, consistent with the parties' mutual objective of having such work performed by contractors with a reputation for high quality, experience, and reiJability. The Agency's Executive Director (or his or her designee) shall have the authority on behalf of the Agency to approve or disapprove the Developeer'e proposed contracts (and change orders and extra MIN work) tequih-ed to be paid for by the Agency pursuant to Paragraph 5 of the Method of Financing. �1 gave 10 of 00 08/19/88 r114AL W Approval shall not be unreasonably delayed, conditioned , or deninO , and provided that the Developer shall have previded full i.nfurmation to the Agency' s Executive Director or designee , final action shall be <_aken on a request for approval of a contract no later than fifteen ( 15 ) days after requer,t for approval is rareivvd and on a request for a charge order or extra work no later than five (5) day: after rpgsest for approval is received. Any disapproval shall be in writing and shall state: the roasons t'ierefor. Upon receipt of a disapproval , the Developer shall exercise reasonable diligence to promptly remedy the problem (assuming the disapproval was reasonable) ar.d resubmit the matter for -approval within a reasonable time ; provided, however, that notwithstandir_g any other provision of this Agreement to the contrary, the Developer's times for- per fonnance shall be extanded for a reasonable: period of time to accorplish such task(s) . During the course of development of the Site, but not more frequently than quarterly, the Developer shall submit 'to the Agency' s Executive Director an itemized statement, with such supporting info&mat ion as the Execut i.ve Director may reasonably require, documenting all. of tha Dpveloper's cost � eligible for reimbursement fron the Agency rmursuant to Paragraph 5 of the Me:t.hod of Financing. Each such itemized statement shall separately identify the costs incurred with respect to each separate contract approved by the Agency' s Executive Director (or designees) and, if applicable, the allocation of costs between those costs required to be paid or reimbursed by the Agency and those costs required to he }laid by the Developer. The Executive Director shall approve or disapprove each of the Oareloper's cost statements within sixty (60) days, ar_d thereafter the approved cost figures shall be used for purposes of determining the Agency's reimbursement obligations for such work under paragraph 5 of the Method of Financing (Attachment No. 5) . Approval :..iall not be unreasorably withhold. Failure to approve or disapprove any such statement within thirty (30) days shall be concIvaively deemed an approval thereof . Any disapproval Shall be in writing and .� shell either state those portions of the Developer's costs that have bean approved and Page 11 of 20 qM/15/88 FINAL up..f disapproved of the additional information that t1le: Developer most submit to obtain ari approval . III the evert that the ;agency and Developer are unable to agree upon the amount of any cost: ►which Developer has submitted for reimbursement , either party may, by wr:ittrn notice to the other, elect to hrve the dispute resolved by arbitration , in which givers s. the arbitrators shall be selected, and the arbitration shall be conducted , in accordance with Section 611 of this Agreement. ( f) After the Developer satisfactorily completes each of the public improvements required t� be constructed in accordance with Pnragraph 11 . 5 and thin Paragraph II. 6, such improvements shall be accepted by the City or Agency and the Agency shall maintain or cause the City to maintain such improvements at no expense to the Feveloper, and the Developer shall have no responsibility therefor, except that ;:he Developer shill maintain at its sole expense the sidewalk and :Landscaping behind the curb. 7 . Developer Contribution to Cost of Relocating City beach Maintenance Facility,y, 5 addition to r obligat ons under paragraph 6, the Developer shall pay to the Agency, the Agency 's reasonable costs of relocation Uf the existing beach maintenance :facility located on the City Heach Maintenance Facility Parcel ( including the east of all furnish- ings, fixtsress, and equipment, but excluding land costs and administrative, overhead or personnel coats) to another location off of the Site; provid- ed that (i) the Developer' s obligation for said costs shall notexceed the sum of Two Hundred Fifty Thousand Dollars ( $250, 000) , except as said. amount m&y bs adjusted as met forth below; (11) in no event rhall the Developer incur any liability under this paragraph 7 prior to -the Disposition Transfer(s) of the Separate Development Parcel (s) on which the existing beach maintenance facility is located; and (iii) in the event the existing beach maintenance facility is not demolished on dr. before June 30, 1992 (the "Adjusstn ent ^ate-') , *he Developer's maximum financial contribution to its relocation shall be adjusted In Accordance with the percentage knoreassse (or decrease) in tho Consumer ' Price :Index for all urban wage eaxrerr for the Los Angeles-Lonq Beach-Anaheim Xetropa.&:•'tan Area between said Ad j uotmesnt bate and the data the demolition accurst provided that such adjustment to page Ls Of so • 00/15/$$ FINAL . i n Developer 's maximum financial contribution to + said. pr. o j:ict whall not: exceed five percent (5-1) per year on a non-cumulative basis from the Ad justiaeut Date to the ;late det,iolit:ion occurs . Subject to the provisions set forth abavo., said cost!; shall be paid by t-he Developer to the Agenc,, ! within thirty ('40) days of the Developer' s receipt: of invoices or i7imilar documentati.)n evidencing payment by the Agenciy of t:he above. -des= ibed costs . in the event that tr.e Develop�.:r fails to make: stic;h pa►ymen•t (s) within Loe time specifis?d a.bovO , delinquent amounts shall. bear interest at the rate of: ten percent (10% ) per annum. B. Setbacks . Minimum building and parking setbacks shall be .1h conformance with. the I1evel oprnent Agi et-nment (Attachment No. 9) and Other applicable provisions of the Huntington Beach Piunicipai Code, including any pennitted variances . C. Buildipq Construction. Buildings shall be constructed in conformance: v th the Developmcnt Agreyment (Attachment 'No, 9) and other applicable provisions of the Huntington Beach MWdnicipal Code, and in accordance with the approved xi.,ai building plans , D. Signs . The Agency shall support the Developer's request to the City that each hotel to be constructed on the Site be permitted to have an illuminated sign or s ign3 the name and, if applicable, the logo, of the franchisor on the face of th3 hotel, with the sik;a of the sign sufficient to be easily visible from Pacific Coast Highway (and, with respect to separate Development: Parcel No. 6 , from Basch Boulevard as well) . III addition, the Agency shall uupport; the Developer i s request to the City that each hotel be permitted a minimum c,f one monument sign on the prir."ry street frontage. Signs shall be in conformance with the Development Agreement (Attachment No. 9) and other � applicable provisions of the Huntington Lsehch Municipal Code and, more specifically, the Downtown St-lacific Plan and design criteria . No signs shall be erected on the exterior of the improvements unless such signs and sighing have been submitted to and approved by the Pxnnning Commission, consistsrnt with the foregoing. ._, Developer shall submit: for approval by the Planning commission and nhL1l implement a Planned signags Program with respect to all signage on the Site prior to the installation of any signs. ,..� y19"1`AMENT NO* 3 stage 13 of so 00/15/66 i INAL ..d w� i 1 •1 e. �r D. Screening. All outdoor storage of materials or equip- ment shal • be enclosed or screened by walls, landscap- Jng, or enclosure to the ektent and in the manner reasonably required by the City/Agency staff and the provisions of the Development Agreement (Attachment ho. 9 ; and other opplicable provisions of the Huntington Beach Ordinance Code . F. larsdIcapin, Subject to paragraphs 4 and 5 of the Method of Financing (attachment No . 5) , the De✓e.loper shall provide all landscaping and irrigation required on the Site, including the landscaping, and irrigation within the public rights-of-ways on or adjacent, to the Site, in accordance with the approved landscape plans . The Developer shall maintain a3.1 landscaping or: the Site outside the public rights-of-way. After satisfactory installation of the landscaping and irrigation systems within the public rights-of-way or. the Site in connection with the development of each Separate Development 'parcel, the Agency shall ac:ept or Cause the City to accept such improvements and maintain or cause the City to maintain the same at no expense to the Developer, and the Developer shall have no further responsibility therefor. G . Utilities , Subject to paragraphs 4 and 5 of the Method of Fl n� rncing (Attachment. No. 5) , the Developer agrees to extend all utilities required for the development, use and maintenance of the improvements on the Site from the locations tc which such utilities will be brought pursuant to Paragraph II . A. 5 (c) above to the private improvements to be located on each applicable Separate Development Parcel . All utilities on the Site shall be located underground. H. Vehicular Access . The number and location of vehicular drNe �►w and curb treaks shall he in accordance with tho approved plans . I. Relocation of Mobilehome Park Tenants. prior to the �ffecf ve Date of this Agreement, the Developer has submitted to the City and urgency and the City and Agency �. have approved an "Impact of Conversion Report" &nd "Relocation Assistance Plan" ,"Di the "change of use" of the Driftwood Mobilahome Park, all in accordance with �.. Article 927 of the Huntington Beach ordinanc!. Code and other applicable laws and regulations. Thfe developer hasp also approved and executed the Mobilehome Acquisition, and Relocation agreement which is actachad to the Relocation hssist-tnce Pl.a:i . The Developer agrees 30TAC2"HT NO. 1 Page 14 of 20 08%15/BB PINAI, MEOW x r to Perform all of its -:obligations under the approved Relocation Assistance Plan and Mobilehome Acquisition and Relocation Agreement. From December 1, 19861 tt,rough the Effective Date of. this Agreement , the Developer has incurred costs of Two Hundred Twenty-Five Thousand Eight hundred Ninety-Eight Dollars and Thirty-Nine Cents (i225, 898 . 3 9 ) to prepare the impact of Conversion Report and the Relocation Assistance Plate for the Driftwood Mobilehome Park, which costs are hereby approved by the Agency . in addition to the foregoing, the Developer agrees upon the Agencyls written request to loan to the Agency an amount or amounts not to exceed a cumvIative total. ct ( i) Four Million Eight Hundred Thousand Dollars ( $1 , 800 , 000 . 00) , Less the sum of (ii) the cost incurred by the Developer pursuant to Paragraph II .A. 6 (c) above to extend the City domestic water line from its existing `arrinus at Olive and Third Streets to the Site, and ( iii) the amounts required to be advanced or paid by the Developer directly to third parties pursuant to the Mobilehome Acqui.sltion and Relocation Agreement (.including Paragraph X111 t1hereof) ; provided, however, that the Agency sha.11 not be entitled to borrow more than Threw Million six Hundred Fifty Thousand Dollars ($3 , 650 , 000 . 00) earlier than the date that the Developer delivers the "tlotice of Phase Closure" (ass that: term is defined in the approved Relocati.rn Assistance Plan) to those tenants/owners whose coaches must be removed in order to accommodate the Phase 2 and Phase 3 commercial developments . The purpose of this .loan shall be to assist thi Agency in performing its --ibligations to acquire and terminate the property interes-ts/occupancies of the tenants and mobilehome owners in thos Driftwood Mobilehome Park and to ralocate and remove 'them iron the Site, pursuant to Paragraph III .c below, the approved Relocation Assistance Platt referenced therein, and the Mobilehome Acquisition and Relocation Agreement . The Developer shall advance the requested amount or amounts, tip to the maximum amounts specified Above, within sixty (60) daIrs after receipt of each Agency request for funds . The Agency shall deposit any such funds advanced _ b% the Developer into a special fund, with the principal ard interest earned on the fund to be used exclusively for the purposes authorized herein. upon the bevel► ioer f s request, ::he Agency agrees to Account to the +� Develop ,or for -the :.:rpendi tore of all amounts advanced by the Developer pursuant :o this Paragraph I1 .1 . A"ACRKZNT We 3 ;. Page 18 of 20 08/15/88 FINAL f, ti The Developer shall have the right, but not the obligation , to expend funds in excess of the maximum loan amount referenced in the preceding paragraph, or to advance such additional funds to the Agency to relocate tenants from the Driftwood Mobilehome hark Earlier than the time required in a "Notice of Phase closure" delivered pursuant to the approved Relocation Assistance Plan. In such event, the additional optional expenc!tture: or advance by the Developer shall be 'treated an a loan o the Agency to be repaid without interest within thirty (30) days after the date on which the Agency woLld otherwise have been required to relocate such tenant pursuant to the Mobilehome Acquisition and Relocation Agreement (assuming that the tenant is a signatory to said Agreement regardless of whether such :'.s the case) . During the course of development of the Site, but not Lire frequently than quarterly , the Developer shall submit to the il-gency'fs Executive Director an itemized statement, with such supporting information as the Executive Director may reasonably req-wire, documenting the Developer's costs incurred for performing the following obligations hereunder and under the approved Relocation Assistance Plan and the Mobilehome Acquisition and Relocation Agreement, as the same may be amended from time to time; (i) the costs, including attorney' fs fees and expert witness fees, incurred in defense of any litigation filed which seeks damages, injunctive relief, or any other remedies against the City, Agency, or Developer arining out of the processing, approval., and/or inplem3ntatican of the "change of use" of the Driftwood Mobilehome Park, and actions to be taken pursuant thereto, all es set forth in Section 707 of this Agreement, ( ii) the costs, including attorneys fees , incurred in prosecuting any unl.atiful detai.ns.4r actions and related proceedings required to be pursued to terminate the occupancies and remove any tenants of the Driftwood Mobilehome Park who fail or refuse -to relocate from the Promises within the time specified in the Developer's "Notice of Phase Closure" (as that term is defined in the approvod Relocation Assis-tance Plan) ; (iii) the sum of any purchase or rental diacounts which the Developer provides to eligible tenanto of the Driftwood Mobilehome Park pursuant to Paragraph VIM B of the Mobilehome Acquisition and Relocation Agreement; and (iv) all other costs reasonably incurred by the developer under the Mobilohome Acquisition and Relocation Agreement, .including without limitation paragraph XI'II thereof. �- The Executive Director shall approve or disapprove such ATTACMMUT NO. 3 Page I8 of 98 00/15/88 FINAL statements within thirty (30) days , and thereafter the - approved cost figures shall be used for purposes of determining the Agency's reimbursement obligations under the Method of Financing (Attachment No. 5) . Approval shall not be unreasonably withheld. Failure to approve or disapprove any such statement within thirty ( 10) days ohall be conclusively deemed an approval thereof. Any disapproval shall be in writing and shall either state those portions of the Developer ' s costs that have been approved and disapproved or the additional. information ;A. that the Developer must submit to obtain an approval . In the event that the Agency and Developer are unabla to agree upon the Developer's coats for any of the foregaing items, either party may, by written notice to the other, elect to have the dispute resolved by arbitration, in which event the arbitrator(s) shall be selected, and the arbitration mall be conducted, in accordance with Section 611 of this Agreement . Except .as specifically set forth hereinabove with respect to optional advances by they Developer to effectuate earlier-than-required removal of tenants from the Driftwood Mobilehome Park, the Developer 's costs incurred pursuant to this Paragraph II . I shall be reimblarsed by the Agency in accordance with paragraph 6 of the Method of Financing (Attachment No . 5) . Except as specifically set forth or referenced in this Paragraph II . I , the Developer shall have no obligations with respect to the "change of use" of the Driftwood Mobile-home park or compensating mobilehome tenants or owners to be relocated therefrom, and the Developer shall have no obligation for construction or provision of any affordable housing on or off of the Site, all such obligations being assumed by the Agency pursuant to Paragraph 111 .C below. J. xiquor Licenses . The Agency recognizes that the hotels and restaurants to be developed in the Commercial Portion oY the Site will require liquor licenses from the California Department of Alcohol and Bevarage Control ("ABC") . Sale of liquor for can-}premises consumption in connection with such uses is in conformity with the Downtown Specific Plan and other local land use regulations and requirements of tLe City and Agency. The Agei,cy agrees not to oppose, object to, or otherwise provide negative comment upon the Developer's Zpplication to ABc for a liquor license or V,censes in connection with such uses. ATTACMME NT No. 3 Page 17 of 20 00/15/88 rINAL a ti l III. AGENCY'S RESPONSIBILITIES : A. Utilities . The Agency rapresents that, with the Oxnept on of the domestic: water line referenced in Paragraph IY.A. 6 . (c) above, all utilities (including sanitary sewer. , gas , electrical , storm drainage , 1 telephone, and cable TV) are available at the per.imete. + of the Site and that the capacitiem of such utilities are and shall remain at all Mimed sufficient to { adequately s ev!ice the construction, operation, and maintenance of the improvements contemplated for the Site . With respect to the domestic water lines to be extended to the Site, the .Agency shall cause the City to establish a precise alignment for such line and notify the Developer thereof within ninety (90) days after the Effective Date of this Agreement. Within such period, the Agency shall also provide or cause the City to provide the Developer with all engineering recp.lir.enents y and specifications for the water line and all information available to the city regarding th+t physical conditions along the: proposed alignment that are pertinent to construction. H. Relocation of Oil Pipeline. Prior to the date set: forth the schedule:of. Performance. for the Disposition Transfer of the first Separate Development parcel o;z which the rail pipeline is located, which pipeline is reflected in Exception No. 4 to the Preliminary Title Report for the DevQloper Parcel referenced in Section 201 . 1 of this Agreement, the Agency shall cause such coil pipeline to be removed or relocated from the Site, at no expense to they Developer. C. Relocation of Mobilehome Park Tenants s Affordable Hou$ nq and Replacement Houa ,nq_Obl,�ations.- Subs ect to the Developer' s advance of funds pursuant to Paragraph II .1 above, the Agency ag're as to perform all of the obligations on AgencxIs part to be performed under Section 201 of this Agreement and the approved Relocation Assistance Plan for the Driftwood Mobilehome Park, including the Mobilehome Acquisition and Relocation Ayreemeent attached thereto, as the same may be amended from tiros to time. In addition, and except as specifically set forth in paragraph II .X of this Scope of Development, the Ardency agrees to perform all of the obligations which the Developer could otherwise have under Article 927 of the Huntington Beach Ordinances ` CoC4 and applicable provisions of State and local law relating to the "change of ties" of the mok:11shome park on the Developer Parcel and removal and relocation of w' the mcbilehomee tenants. Finally, the Agency shall be „O ATTACIAMUT NO. 8 Page H of 80 08/15/98 FIN%L f, w; responsible for timely satisfying all requirements of federal , state, and local lbw relating to planning for and construction of affordable housing and replacement housing which may be required as a rns:alt of the elimination of mobilehome sites on the Developer Parcel and the Pacific: Mobilehotme property and tho development of the site . D. Demolition of Existing-Beach Maintenance Facility. Prior to the scheduled date for the Uispors t on Transfer of the first: Separate Development Tarcel in the Residential Portion of the Site (Separate Development Parcel No. 7) , the Agency shall demolish and clear from the Site the City beach maintenance facility. E . Easements and Permits. The Agency agrees to exercise reasonable diligence, at no expense to Agency (other than Agency overhead and pay •oll expenses) , to secure any and all parmits (but not the payment of fees) which may be required by any other governmental agency affected by such construction, development, or work, including, without 1i.mitatiin GO encroachment permit (3) from tIIa Cal.i.frtnia Department: of Transportation for any work within the right-of-wale along the Beach Boulevard ar.d Pacific Coast Highway frontages oi. the Site (such as curb cuts and the pedestrian overpass (ass) ; (ii) approval :from the California Department of Fish a;id Game and the United States Fish and Wildlife service for the wetlands mitigation required for any identified wetlands on the Beach Boulevard Remnant Parcel. ; and ( i i i) approval of any coastal development permi4 (s) required from the California Coasts, Commission. F. Clean-Up of Hazardous Materials. In addition to its respo ihilit es under Paragraphs B and D above, prior to the Disposition Transfer of each Separate Development Parcel , the Agency shall clean up an3 remove or cause to be rtmoved therefrom all toxic and hazardous substances located on, under, or with respect to said parcel as required to place said parcel in compliance with all applicable federal, state, and local statutes, regulations, ordinances , and laws, pertaining to hazardous and toxic substances; pro. ided , ho:.ever, that: ( i) the Developer shall have the sole responsibility for clean-pup and removal of any toxic or hazardous .�: substances placed on, under, or with respect to :any portion of the Developer Parcel by the losses of the Developer Parcel or any officer, employee, or agent of the Losses singe the date the Developer's predecessor- M ir.-interest first &squired possessicn thereof pursuant ATTAMMMT NO. 3 Page 1s Of 80 08/15/88 VINkL ti- f y r to the Lease datmd March 28 , 1960, as recorded in the Official Records of Orange County on January 9 , 1961, in Book 5582 at page 203 , and ( ii) in nr,o event shall the Agency be required to expend a cumulative maximum of "~ more than Nine Hundred Thousand Dollars ( $9001 , O00. 00) in 1988 Dollars for the clean-up and removal of toxic and hazardous substances on, under, ��x with respect to the Developer Parcel . The entire Agency financial contribution to the cost of clean-up and remcval of toxic and hazardous substances shall be applied, as needed, to the various Separate Development Parcels in the order in whi-h the Disposition Transfers occur, until such time as the Agency's maximum financial contribution has been fully expended. The Agency's $900 , 000 . 00 maximum financial contribution referenced above shall, increase on January 1. , 1989 , and on January lot of each year thereafter in accordance with the annual percentage increases in the Consumer price Index of. Urban Wage Earners and Clerical Workers published b, - the United Staters Department. of Labor, Bureau of Labor Statistics (All Items) . In the event that the Agency reasonably determines that the cost of cleaning up and removing toxic and hazardous materials from the Developer Parcel. exceeds the Agency' s maximum financial contribution, the Agency shall promptly so notify 'the Developer and if the Developer does not agree within sixty (60) days after receipt of such notice to assu,tie the responsibility for payment of such excess costs, either party may terminate this ,agreement with respect to such Separate Development Parcel in accordance with Sections 608 and 609 . 6/112/065580-0001/002 A'2"1ACMENT NO. 3 page 20 0f 20 08/15/88 FINAL ( ti Exhibit 1 to ATTACMff.NT NO 3 u MUCAL' MAXIMUM ALLQVLEj;L—_ TOTAL B '� -roTAL BL.Ot.s bpi EL0� ..... � � 1ARL6 _ PK4K 1 FDi3T CLAD 140TEL 300 13 ;Ili,000 0. 300 13 256,000 !.f. PHAN 3 TU M14 A HEALTH CENTER n/A 2 23,3tf0 0. "/a 3 40,000 s.f. PEASE) COWEKKE HOTEL 500 is 340,000 0. GM 17 4111200 s 1. PHASE 4 ALL--,WrM HOTEL 2w is 330,600 v f. 250 Is 250,600 %.1. PHASE I RETAIL SHOPPING n/s 3 75,000 &f. 3 99,MO $.I. PHASE 4 LUXURY HOTEL _�,QQ 9 MRM I.f. 12 _61 Q 309 s.!. TOTAL'S 1,450 1,316,400 IS. 1,6129 1,73?,100 s.f. Q13TRK.C#9 MAXidi UM FJLR. 3.5 3.5 R'WMA�.ENT F.A.R.3 1.4 1.7 MULTWA1MILY IREEII A"'L V1 <sAik 17S oinils s "' i MD N T a.a r e rr To a.aA �u.�a o THE CM 2 IONZAMIIIS OF IARM • 3* OOL �A�/� 1M11.1� !! ftQuVAit�T F.A.it S619M 16 T111L TOM KJiLDNG I1RFA 4 lM T A 1 OVAL F" AT A b GMT A 1% RNIMNM 9M KAU fdlibit 1 to 1 j 7 ,4 Exhibit 2 to AT;'ACNMEN•1 No . 3 g 9A148 t as u 40 / � y g ALP 40 OP '00 cop 1 1 : il le Ei y., —Ll ftAl POL K Exhibit 2 to Z FE h TACME INT NO. 3 r ti 0 ATTACHMENT NO. 4 SCHEDULE OF PERFORMANCE Item of Time for Performance Performance 1 . TASKS COMPLETED: 1 . 1 City approves the Mauer Site on or before Effective Plan for Commerciai portion of Date . Site and the conditional use permit, coastal development permit, and tentative parcel map for the Phase 1 hotel (Section 203 ) . 1. 2 Agency approves and executes Within thirty (30) days Agreement (the "Effective after the later of ( i) Date") (Section 900 and intro- the date Developer ductory par_,graph) . delivers executed r_gree- ment to Agency and ( ii) the date Item 1 . 1 above is ccmpletec . 1 . 3 City and Ardency enter into Within thirty (30) days City-Agency Agreement nor after the later of ( i) conveyance of Separate the date Developer Development Parcels from delivers executed Agree- City to Agency (Section 201 . 1) . ment to Agency and (ii) the date Item 1 . 1 above is completed. 1 .4 City and Developer enter Within thirty (00) days into ame aided Lease covering after the later of (i) Developer Parcel (Section the date Developer delivers executed Agr:on- ment to Agency and (ii) the date Item 1. 1 above is completed. 1. 9 City and Agency approve Within thirty (JO) days Impact of Conversion Report after the later cf (i) and Relocation Assistance the date Developer Plan for "change of use" of delivers executed Agree- the Driftwood Mabilehome meat to Agency and (ii) Park and relocation of the date Iten 1 . 1 above tenants frci the Driftwood is completed . Mobile.home Par' (Attachment No. 3 .. paragraphs II . I and I.'Y. C) . ATTACMl NT NO. 4 Page 1 of II 08/15/88 pINAL J Item of Time for Perforn. &rice Performanc_© 1 . 6 Agency approves Signet HotCel On or before Effective Corporation as operator for Date . the phase 1 hotel (Section 205) . 1 .7 Agency approves Halton Hotel On or before Effective Corporation as franchisor for gate . the Phase 1 hotel (Section 205) . 1. 8 City and Developer enter Ordinance M.1opting Develop- into Development Agreement. merit Agreement to be covering the Site and introduced on or before miscellaneous ratters Effective Date ; second ;elated to development and readinq (adoption) of operation of improvements ordinance to occur within on the Site (Section 201. S) . three ( 3 ) weeks thereafter; ordinance to becoine ef fsc- tive thirty (30) days after second reading. 1 . 9 City and Agency adopt ordinances transfering from ordinances transfer. ing from City to Agency authority to City to Agency authority to levy and collect transient levy and collect transient occupancy taxes to be intro- occupancy taxes securing (in duced on or before October pat t} Agency t o payrment:. 3 , 19 8 8 ; second reading obligations to Developer (adoption) of ordinan-:es to under Method of Financing occur within three (3) weeks (A,ttachrent Ho. 5) . thereafter; ordinances to become effective in accordance with law . 2 . TASKS TO BE COMPLETED AND CONDITIONS_ TO BE SATISFIED. (OR WAIVED BY APPROPRIATE PARTY) PRIOR TO DISPOSITION TRANSFERS : ;2 . 1 Pra ert Ac_ iisitiori; lkeloc;a•t on of occupants; ._ Demol t on of Im ro.ements; clean-Up an „Removal of Toxics. 2 . 1. 1 Developer delivers Six (6) months prior to six-month Notice of Phase scheduled date for the Closure to tenants of the Disposition Transfer(s) Driftwaad Mobileh,ome Parl. of the Separate -� (Section 201 . 3) . Development Parcel (a) on which said torunts reside and, as to those tenants � required to loe relocatad to accommodate the ex-ten- sion of Walnut Avanue Page 2 of 11 } 08/25/90 FINAL I Item of Time for � Performance Performance • through the Site, no later th,�n six (6) months prior to the schedule date for the Disposition Trans- fer(s) of the Separate Development Parcel (s) to be developed in conjunc•- tion with the extension of Walnut Avenue. &1 . 1. 2 Developer exercises its Prior to the scheduled hest efforts to ternina:Ze and date for the Disposition remove of record Exception Transfer (s) of the Nos . 81 13 , 14 , 15 , 1.7 , and 18 Separate Development listed in the Prelb-Anary, Parcel (s) to which said Title Report for t}�-z Developer witle exceptions relate . Parcel (Sectiun 201 . 3) . 2 . 1 . 3 Agency exercises its For a period of not less best efforts to ;negotiate the than ninety (90) clays acquisition and termination of after the Effective Date ( i) all property interests/ of this Agreement. occupancies required for the Phase 1 aom me:.cial development (Separate Denrel jpment. Parcel No. 1) inconsistent with the "Approved Title Exceptions, " and (ti) all property interests/accupancies in that portion of the adjacent Pacific Mobilehome Park property which must be acquired in order to accom- modate the planned extension of Walnut Avenue and required utilities through the Site (Section 201. 2) . 2. 1. 4 (If applicable) Within une hundred fi,:ty Agancy elects whether to (150) days ,after Effective acquire remaining unacquired Date of. this Agreement . property interests/occupancies r*quired for the Phase 1 commercial davelopuent (Separate Development Parcel No. 1) and Pacific Mobilehom* Park property by exercise of its power of eminent domain and, if Agency elects to proceed, .� eminent dorain action(s) filed (Section 201 . 4 ) . ATTACRXZUT NO. 4 Page 3 of 11 09/15/88 FINAL J Item of Time for Performanre Performance -.i 2 . 1 .5 (if applicable) As soon as possible after Agancy exercises best efforts commencement of eminent. ' to obtain order(s) o;. prejudg-- dori.� n proceedings. ment possess ion in act-ion (s) to acquire unmcquired property interests/occupancies required for that Phase 1 commercial development (Separate » ' Development parcel No. 1) and Pacific MobilehonoR Park property, if requestr:d by Developer, and to comp.Late eminent domain proceedings (Section 261 . 4 ) . 2 . 1. 6 Agency acquires Separate Prior to scheduled date Development parcel No. 1 from of Disposition Trains f e the City pursuaxit to the City- for Secaraote Develoriment~ Agen!,y Agreement (Section Parcel No , 1 . 2 . 1.7 Developer notifies After Developer receives Agency of Developer' s intention all discretionary develop- to schedule 1)isposit.ion rent permits (excluding Transfers for Separate f. '.na.l building plan;'permit Development Parcel Nos . 2.-9 approval) required for (Sqctlons 301 and. 313 ) . development of the Separate Development Parcel (s) , and not later than both (i) eight (8 ) months prior to the data Developer desires to schedule the Disposition Transfer and (ii) sight (8) months prior to the applicable deadlines for conveyance set forth in Section 313 . 2 . 1. 8 Agency exorcises reason- with respec-. to each able diligence to negotiate the Disposition Transfer, acquisition and te=ination of for a period which is the all property interests/ longer of trio following occupancies required for the two periods: (i) sixty Phase 2-9 developments (60) days after Developer (Separate Dev+alopnent Fircel notifies Agency of Deve- �� Nos. 2-9) inconsistent with loper':3 intention to the "Approved 'Title Excep- schedule a Disposition t i,ons" (Section 201 . 2) . Txar.sf,er in &coo:Banc€ with paragraph 2 . 1 . 7 above, or (ii) for a period ending sir (6) ATTACIMU ` 140. 4 Page 4 of 11 08/15/88 FINAL Itetl of Time for. Perfor.,iancc Ticrf0l"Talice months pried- to the scheduled date of the Di ,nositinn '.ilransfer. 2 . 1. 9 ( If applica})1i-:) Within cJxty (50) days Agoncy elect's whe;t:her to =!tier elir, c t th,*'. �cJC:I1C�r acquire relani.nsnc,• unmccpiied negotiation period (pa za- property interests/occ:ipancies rrraph 2 . 1 . 8 alcove) by exercise of its. power of eminent~ drnz in and , if Agency elects to proceed , riner,t: domain action(s) filed (Sect:i.on 201 . 4 ) . 2 . 1 . 1.0 (I1' -tl73})ii�Mhle) Tyr, s001-1 as Possible Agency O%e cisc be:5t art or cowlencement --) i�'f. forGs to n})twin order(:) :inn enW domain procee.d- of prejudgrtelat: pos_-,essiorc, irgs . it ravested bi Dovp;loper,, and to icmplet:e eminent: domain proceedings (Sect:-.on 201. 4.) . 2 . 1 . 11 agency demol ishea and Prior to octieduled rate -of clears existing beach inaint,;m- Uicpo,.ition Transfer of farNility (Pttachr.,,-nt iloT S �pr:.r:���e ��e�.re.!.oi:r�l nt 3 , : .����7x•i:pYi x I I . U) . Pa x c:o). 1,I0 7 2 . 1 . 12 Acfl.? :cy cleans tip iw! Prio:: to scheduled Matt- I. entove.s those toxic and of Disr Ds4 t:_on T.:ans.f.er of hazardaus ,ubstan:;e. CI1, a,pl- lic�.ble �'eparutP unc?er, a:►c{ w:.t.h respn t IUo Development Ear.ref . Separate Dave].cpme.nt Par.-,-al to the ext:ent:. of; Agency's r.esDonsibilit:y therefor (Section 11.2 , Attachment No. III-', Para- graph III) . 2 . I. 13 Agency acquires each prior to c.rheduled date of Separate Uevolopment. Parcel Disprsi.ti on 'transfer of from the City pu!csuant to the applicable Separate City-A envy Agreement, with nevelc,,pu ont Parcel . ti'tls Yn the conditirpn set forth in this Agreement (Section 201. 1) .. 2 . 2 Plan Submittals And Reviews: 2.2 . 1 Wveloper prepares and At any time rx1or to the submit& to Agancy and City are date Developer desi,r. as to application for the discre- schedule a Disposition � ATTACUBUT MO. 4 Page 5 of 1L 1 00/23/88 FINAL Item of Time for 3 �Peir, rman:a Performance tionary development permits Transfer for such Separate (wxt'ludinq Einar building Development Parcel. lain ermits, Con$truC�;.!�ti'1 (Note previously oc-�;�lated p /P Y drawings, utility plans, a.rid for Phdae 1 hotel --- see eendroachmeent permits) Item 1 . 1 of this Schedule. ) required for development of Separate Development Parcel (Section 203 ) . 2.2. 2 Agency approves (or Within forty-five (45) days disapproves) and exercises after re6eipt of complete reasonable diligence to cause application and supporting city to approve (or dis- documents-i . plana, and approva) Developer's drawings; provided, howaver, discretionary development that in that event there is permits (Section 203) . an administrative appeal from any such approval , the time for perfor:mance of this item shall be extended for an additional, forty-five (45) days . 2.2.3 (If applicable) As soon as possible after Deveilop r revises disapproved receipt of 'notice of portio' h(s) of plans or disapproval. drawings and resubmits to City and/or Agency (Section, 203) . • i 2 . 2 . 4 (If applicable) Agency Within thirty (3 0) days approves and exercises after receipt of revised reasonable diligence to cause plans or drawings (assuming City to approve Developer's required corrections and revised plans or drawings changes have been made) . (Section 203 ) . 2 .2.5 Developer prepares and No later than one hundred submits final building plans twenty (120) days after tiie and construction drawings later of (i) the - date; on for public and private which Developer obtains the improvements to be conat;uet- final discretionary deve-- ad by DMveloper with respect lopment approval for the to Separate Development project +rom the city; Parcel (Section 203 i Attach-- Agency, or other govern- ment No. 3 , Paragraphs I1 mental agency with Jurjsdic- and III.A) . tion, or (ii) the date on tow which Agency and Developer acquire all pruperty inte rests/oc cupanciea with respect to such Separate Development Marcel required i , AT'I'I1MONT lice, 4 Pagan i of 11 08/15/88 FINAL ' 1 woo • kr 1'ti'Y 1• 1 f Item of Time for " ? Perfop ci Perform!.nce -� to enable the development to ` be constructed. 1 7 2 .`4. 6 (If applicable) As soon - as pousible after imveYoper ravines disapproved receipt of notice of portions- of final building disapproval. plaro and construction drawings and resubmit$ to 1 City (Section 203) . 2 . 3 .Evidence Of Financing: 2 . 3 . 1 Developer submits to No later than sixty (60) Agency evidence of Developer's days prior to the date financial capability to Developer desires to _•! complete development of schedule a Disposition ` Separate Development Parcel Transfer. (Section 204) . 2 . 3 .2 (If applicable) Within twenty (20) days Agency notifies Developer after receipt of Developer's . what further information initial submittal (Item No. y Agency reasonably requires 2.3 . 1) (or Developer' s to determine whether or not submittal is deemed -� to approvs Developer's complete) . evidence of financing (Section 204 ) . 2 . 3 . 3 'If applicable) As soon as possible after Developer delivers additional receipt of timely written infcrmatioon regarding finan- notice from Agency request- cial capability requested by ing additional information. Agency (Suction 204) . 2 . 3 .4 Agency approves (or Within thirty (3 D) daiys disapproves) Developer's after Developer' s request evidence of financing for approval of financing is (Section 204 ) . accapted as complete (or is deemed complete) . 2 . 4 A roval of Hotel 2perator(al and Franchisor a _ as to each Sep„arr,t'.-t Development Parcel on wh .chTrhotel is to be constructed) . . 2 . 4 . 1 Developer submits to No later than ninety (90) Agency evidence th&t Developer days prior to the date on has bindinq agreement with which Developer desires to qualified hotel operator to schedule a Disposition manage hotel (Section: 205) Transfer. (Note: pro- and that Developer has viously completed for binding agreement with Phase 1 hotel -- see qualified hotel franchisor Items 1. 6 and 1 . 7 of this ATTACIB UST 90. 4 08/15r88 FINAL Palo 7 of 11 r Oft rJ . 1 Item Qf Time for Egrfgirmanne Performance 4 . (Section 306) . Schedule . ) �j i.4 .2 (If 'applicable) Agency Within thirty (30) days Notifies Devetlopesr what after receipt of Developer's further information Agency initial submittal (Item N�' . reasonably'`requires to 3 .4 .1 above) (or developer's determine whether or not to submittal is deemed , i approve hotel operator and/ complete) , or franchisor (sections j 205 and 206) . ...•i 2. 4 . 3 (If appiicablee) As soon as possible after Developer de a. , ,ors additional receipt of timely t�-ritten intorgation r et, uested by notice from Agency Agency re hotel operator requesting additional axed/or franchisor. information. (Sections 205 and 206) 3. 4 4 Agency approves or Within forty-five 4 5 days disa►pprcves) -,hotel operator after Developer's requesty and franohisor (sections for , approval of hotel h►,� 305 and 206) . operator and hotel fran- chisor is accepted as couplets (or is doomed ;•, complete) . two 3 . DISPOS'w'TION 'nwsrzm 3. 1 Agency opens escrow Within ten (10) days after for Disposition Transfer receipt of written notice ,..,� (Section 303) . from developer and after all conditions precedent to the r Disposition Transfeer in Section 301 have been aatisfidd or waived by the re ,; party for whose benefit the conditions exist. 3 . 2 Agency and Developer within thirty (3 0) days perform all acts required after opening of escrow. to be performed for the Disposition: Transfer to occur; escrow closes (Section 303 i Article III j � generally) . 3 .3 Deadline for Disposition Within the times set Trans Iform. Last. day for forForth in section 313 . Developer to close Disposi- tion Transfers on the Site s (subject to extensions.' for ATvA%;2MMNT fie. 4 pays a of It 08/15/88 FINAL v It= of Time for . Fort ruA,nce Performance * M1N •' valuelland Agency defaults) ( ection 313) . 4 . 1 A9X$ TO BE COMPLETED DMEEN DISPOSITION TRANSFERS AND ! CERTI1 OF COMPLETION: 4 . 1 Developer delivers Prior to City's issuance of f evidenoe of insurance to building permit (s) . Agvn6y (Section 404) . � i 4 . 2 City issues building Vot later than thirty (30) . ► permits and encroachment days after Disposition resits fo!: any public Transfer. �-, Tmrovements to be mp constructed in City right- of-way (Section 405) . 4. 3 Developer commences within thirty (30) days ! construction of Developer after City's issuance of Improvements required for building permit(s) . Separate Development Parcel in question, Sxus , publia improvesents which Developer is rerquireid to construct with respect to such parcel (soctian 4031 Attachment No. III, paragraphs I and II) . 4 .�4 Developer submits to During course of Agernoy•s Executive Director development, not vore itemized statmment (s) re (1) frequently than quarterly. costs incurred by the Dove- log►eer relating to"Zontal. and sales discount, provided to tenants of the Driftwood Mohilehomt Park ralcoated into the projtct and certain litiga- tion expenses relating td the "Change of sass" of the mobile- -`' home park, and (ii) costs of specified improvements (Attachment No. 3, Paragraphs II.A. 5-II .A.6 and 11 . 1) . 4 . 5 Agency's ftecutive Within thirty (30) days r D rector approves (or dis- after receipts approves) Developerrl a item.',xed cost stlitementei:. (Attachment No. 3 , Paragrap•hi',. II ,A.S, 11. 1. and A'1 TACI MEUT 140. 4 page f of 11 08/15/88 FINAL J i *:�•,tip•' ; f Item of Tit* for °,"` etc as�ance erformance 1 4 .4 Developer completes construe- within thirty (30) months tion of public and private after commencement of improvements required with construction. respect to applicable Separate , Developmant Parcei (Section 403 ; a i Attachment No. 3) . --� 4 .7 Agenoy issues Certificate Within thirty (30) days of Completion for Separate after written, request by Development Parcel (Section Developer (assuming worn: is 415) . satisfactorily completed) . S. RESPOK5118XVTZES OF THE PARTIES SUBSEQUENT To CERTirICATE(S) OF CONPUTxaN _ r , •. 5. 1 developer's obligations As net forth therein. subsequent to Certificate(a) of Completion (Article 5 i Attachment No, 7 , Paragraphs 28 3 , 4 (b) , and 61 Attachment 5.2 Agency obligation ■ubse- As set forth therein. w quent to Cartifi' ate(s) of Completion (Attachment No. 3 , paragraph Ill ; Attachment i No. 51 Attachment No. 6) . Several of the items in this Schedule of Performance are based 1j`• , upon a date to be x0ecified by the Developer as the date on which it desires to sdhadulle a Disposition Transfer. It is understood that if the -conditions to closing a Disposition Transfer have not been satisfied (or waived by the appropriate party) prior to that desired date, that Developer' s right to close the Disposition Transfer shall not terminate or expire, and 'Developer shall be entitled to extend the time within which the disposition Transfer shall occur (subject to the deadlines in Section 313 of this Agreement) . The right of Developer to so extend the time for a Disposition Transfer shall not excuse any material default by Agency hereundar in failing to timely perform its obligations required to be performed as condition(s) to closing a Disposition Transfer. It in further understood that the foregoing Schedule of Performance is subject to all of the terms and conditions not forth in the text of this Agreement. The suzu,,.ary of the items of performance and the times for performance in this Schedule of I'1TAOM ? NO. 4 Page za of 11 ' 08J33/88 FINAL �'l.. .ter.r-w . . ,. .. .r r, ,,w.•,,, i 1 1t4 -:•� f 1 '. Pertemance is not intended to supersede or modify the more 41 camp1ets 400cription in the texts in the event of any conflict or " inconsistency between this Schedule of Performance, and the text of this Agrosawnt, the text shall govern. '1 6/11'1%065580-0001/008 r j 1 ` 1 Page 11 of 11 08/15/68 FINAL r fir.�,,, `r ,'• i irk T. 1 t Asa t ATTACHMENT NO. 5 METHOD OF F1NANCIND -1/ I. Purchase Prise for Separate Development Parcels Within I,Of Residential Portion o the S t&. The Developer's p►archaso price for each Separate Development i Parcel in the Residential Portion of the Sit* shall depand upon (i) the number.. of dwelling units approved by the city/Agency for the ' Rasidentiml portion, (ii) the number of dwelling units ,J approved by the City/Agency ,for the Separate Development Parcel in question, and (iii) the year in which the Developer is prepared to -, close escrow on such ' Separate Development Parcel . The' maximum i,umbdr of dwelling units, permitted on the Residential Portion shall not exceed eight hundred seventy-five (875) . Based upon that number of dwelling units being approved, the purchase price for each Separate Development parcel in the Residential Portion of the Site shall be calculated ab follows: ; (a) For the first four hundred thirty-eight (438) dwelling units: Year' to Whi6h Developer is Sales Price per Prepared To .close Escrow Dwelling Unit (i.e. , Developer has satis-c Approved for Said tied all conditions to Separate Development Agency'r obligation to. Parcel convey Separats Development - Parcel in question or Agency has waived such conditions) :. 1988 $ 9,.r)60 1989 10j,330 1990 11, 160 1991 12 , 050 1992 13,010 1993 14,050 1994 15,170 µ 1995 160,380 1996 17, 690 1997 190110 1998 20, 640 1999 22, 290 2000 24 , 070 ATTACAtkENT No. 5 Page I of 3A 08/15/86 FINAL ' r `j POW ,f i if ,.� (b) Vox the next two hundred nineteen (219? dwelling Year to Which Developer Is Sales Price Per Prepared To Close Escrow Dwelling Unit (i.e. , Developer has satin-- Approved for Said lied all conditions to Separate Development Agincy•w obligation to Parcel convey Separate Development parcel in question or Agency haw waived such conditions) ' 1990 $ 71530 1991 8 , 13 0 .., 1992 8 , 780 2,993 9 , 480 1994 10, 240 1995 110060 H 1996 11, 940 1997 12 , 90.0 1998 13 , 930 1999 158040 2000 16 , 240 2001 17 , 540 2002 18 ,940 2003 20 , 460 (c) For the next two hundred eightoen (218) dwelling unites Year In Which Developer Is sales Price Per -�; Prepared To Clow* Escrow Dwelling Unit- (i.e. , Developer has sa►tis- Approved for Said fied 'all conditions to Separate Development Agancy"s obligation to Parcel convey Separate development Parcel in question or Agency has waived such conditions! _. 1992 $ 4 , 520 1953 4 , 880 1994 5, 270 1993 5j, 690 1996 60, 140 A'!'' AMIMMT NO. 5 page 2 of to 08/15/08 FINAL y, iit l,",V 1,Sy,y�...j1 y a A,• ' , 1.'T;� 1997 6, 630 1998 7, 160 1999 7, 730 2000 81350 2001 9, 020 r: 2002 9, 740 2003 10, 520 Notwithstanding the foregoing, if the City/Agency approve fewer than might hundred seventy-five (875) dwelling snits for thr P entire Residential Portion of the Situ, the numbers 439 , 219 , and 218 *at , forth in subparagraphs (&) , (b) , and (c) above, respectively, shall each be reduced by multiplying such numbers by m fraction in which the numerator equals the number of dwelling units actually approved by the City/Agency for the Residential portion of the site and in which the denominator is 875. If the close of escrow is delayed from one year to the next due to a► default by the Agency hereunder, the Developer" s purchase price shall be calculated as though escrow had closed 'in the year ih which the developer had satisfied all conditions precedent to the Xgincyls ' obligation to close escrow (or would have been preptrad to satisfy such obligations had the Agency not so defaulted) . Within thirty (30) days prior to the close of each escrow for a separate bevolopment parcel within the Residential Portion, the h Agency and Developer shall execute and deliver to the Escrow Agent a writing setting forth the amount of the purchase price therefor. 2. Developer Responsibilities . Except as otherwise expressly set forth in this Agreement, including w thp:-vt limitation Paragraphs 3 , 4 , 5 , 6, and 10 hereinbelow, all costs, expenses, and indebtedness relating to development of the Site shall be Taid for by the Developer, and the Agency shall have no kesponsibli.ty therefor. 3. A enc Res onsibilit.ies. Except as otherwise expressly se►t forth in this Agreement, including Without limitation Paragraphs II .A. 6(c) and II . I of the Scope of Development (Attachment No. 3) and Paragraphs 4 , S. and 6 below, the Agency shall be responsible for payment of only the following costs and expenses relating to the development of the Site; (a) All funding required to per fo= the "Agency' s Responsibilities" Identified in Paragraph III of the Scope of Development (Attachwent No. 3) ; and ATTACHUNT NO. 8 Page 3 of is g 08/15/88 FINAL 44'M b., 14• , (b) All funding required to relocate the beach maintenance facility from the Site above the amount to be contrib teed for such purpose by the Devil opeer pursuant to para- graph 11.A. 7 of the Scope of Development; and (c) The incremental costs of any oversized utilities which Developer ,is required to construct, as set forth In Paragraph II.A. e (c) of the Scope of Development (Attachment r No. 3) 1 and (d) The casts incurred by the Developer to reabandon tl,-,-i existing abandoned oil• wells on the Site, as set t_ forth in paragraph ?I.A. G(d) of the Scope of Development; and (e) All funding required to acquire and terminate those property interests/occupancies in the Site and the Pacific Mobilehome Park property which are the Agency's responsibility under Sections 202 . 3 and 201. 4 and Paragraph III. 0 of the Scope of Development (Attachment No. 3) of this Agreement, including without limitation all costs and expahzes incurred by, the Agency and Developer in performing their obligations under the approved Relocation Assistance Plan for- the Driftwood Mobilehome Park and the Mobilehome Acquisition and Relocation Agreement attached i� thereto; and (f) Agency staff, payroll, and overhand expenses related to the Agency's performance of its obligations under this Agreement and its administration of this Agreements and , 1 (g) Those litigation expenses specifically ' referenced as Agency's responsibilities under Section 707 . " 4 . , Agency payment of Portion of -Pro ert Tax Increment «J and Transient occu anc Tax. The amounts referenced in t o paragraph 4 shall cons; to a an indebtedness of the Agency to the Developer to he repaid at the times, from the sourc,as of funds, for the purposes, and subject to all of the other terms and conditions set forth herein. (a) Patents. Commencing fifteen (15) days after the later of (i) the end of the first calendar quarter following the issuance of a final Certificate of Completion for the Developer Improvaments on Separate Development Parcel No. 11 or ,J (ii) the commencement of construction (pursuant to a valid building permit) of they hotel on Separate Development Parcel No. 3 , and continuing thereafter on the fifteenth (15th) clay following the end of each calendar quarter until all sums set forth below are paid in full, the Agency shall pay to the Developer the sum of: ATTACNXZNT W. S Page 4 of if 00/15/88 FINAL ,TAM. „r; r �Ylvril,?'rib'}.{A{1 ii�A .,I1 r1•, �� i r (i) fifty percent (50%) of the "TOT" as that ' ter+►. is defir:ed below, paid with respect �r! te; the hotel on Separate Development p P Parcel No. 1 in and for the ten (10) year period following the opening of such hotel for business, but in no event for any period after December 31, 20191 (Li) Thirty-eight and one-half percent (38 - 1/24) of the "Property Tax Increments$ as that term is defined below, paid with respect to , Separate Development parcel No. i in and for the period commencing on the Disposition Transfer for separate Development Parcel No. 1 and terminating ! on the date that is ten (10) years following the issuance of a final Certificate of Completion for the Developer Improvements thereon, but in no event for any period after December 31 , 20091 and 11 ( 111) The interest received by tb4 City and/or "J Agency on the revenues referenced in t subparagraphs (i) and (U) innedidtaly i 1 above from the date such revenues are received by the city anal/or Agency through the date of payment to the :h ' developer, which interest shall be conclusively assumed for purposes of this Agreement to accrue at the: "Apportionment Rate" calculated by the Controller of the State of California as the rate of earnings by the Surplus Money Investment Fund for each six-month period during the ' term of such payment obligation. Commencing fifteen (15) days after the later of (i) the end of the first calendar quarter following the issuar ce of a final Cowrtificate of Completion for the Developer improvements on separ&te Development Parcel No. 3, or (ii) the comuencement of construction. (pursuant to a valid building permit) of the hotel on Separate Development Parcel No. 4f and continuing thereafter on the fifteenth (15th) day following the end of each calendar quarter until all sums set forth below are paid in full, tho Agency shall pay to the Developer the sum of s (i) Fifty percent ( 50%) of the "TOT" as that term is defined below, paid with respect to the hotel on Separate development Parcel No. 3 in and for the ten (10) year 1 a.d JLTT ACXKBNT NO, a Page 5 Of is 09/15/88 FINAL OP r �. , ova rq + N. r period following the opening of such �{ hotel for business, but in no event for any period after December 31, 20151 (ii) Thirty-eight and one-half percent (38- 1/2%) of the "Property Tax Increment, " as that term is defir ed below, paid with respect to Separate Development parcel No. 3 in and for the period commencing on " the Disposition Transfer for Separate Development Parcel No. 3 and terminating on the date that is ten (10) years fallowing the issuance of a final certificate of completion for the Developer Improvements thereon, but in no event for any period after December 31 , 2009 ; and (i i i) The interest received by the ,c:ity and/or Agency on the revenues referenced in subparagraphs (i) and (ii) immediately above from the date such: revenues are received by the City and/or Agency through the date of payment to the Developer, which interest shall be conclusively assumed for purposes of this Agreement ' to accrue at, the "apportionment Kate" calculated by the Controller of the -� State of California ' as the rate of earnings by tha Surplus Money Investment Fund for each six-month period during the teaks of such payment: obligation. 1 commencing fifteen (15) days after the later of ; (i) the *nd of the first calendar quarter following , the issuance of at final Certificate 'of Completion for the developer Improvements on Separate Development Parcel No. 4 , or (ii) the commencement of construction (pursuant to a valid building permit) f of the hotel on Separate Development Parcel No. 6, and continuing thereafter on the fifteenth (15th) day following the end of each calendar quarter until all sums set forth below are paid in full, the Agency shall pay to the Developer the sum of : (i) Fifty percent (50%) of the "TOT" as that term is defined beluw, p&id with respect to the hotel on Separate development Parcel No. 4 in and fGr the ten (10) year period following the opening of such hotel for business, but in no event for any period after December 31, 2019; .r ITTACHURNT NO. S Page 4 of is 09/25/88 FINAL SI ` R ,. (ii) Thirty-eight and one-half percent. ( 3$- 1/24) of the "Property Tax Increment, " as that term is defined below, paid with respect to Separate Development parcel No. 4 in and for the period commencing on the Disposition Transfer for Separate Development parcel No. 4 and terminating O an the date that is tee, (lo) years following the issuance of a final certificate of Completion for the Developer Improvements thereon, but in no eve-it for any period after December 32, f 2009 ; and (ii i) The interest received by the City and/or Agency on the revenues referenced in subparagraphs (i) and (ii) immediately above from the date such revenues are received by the , City and/or Agency through the date of payment to the Developer, which interest shall be "4 conclusively assumed for purposes of this Agreement to accrue at the "Apportionment Rate" calculated by the Controller of the State cZ California as the rate of earnings by the Su plus Money InveestmenIt Fund for each six-month period during the term of such payment obligation. Commencing fifteen (15) days after the and of the first. calendar quarter following the issuance of a final Certificate of Completion for the Developer Improvements on Separate Development Parcel Nos. 2 , 5, 6, 71 8 , and 9, and continuing thereafter on the fifteenth (15th) day following the ,. and of each calendar quarter until all sums meet forth below area { paid in full, they Agency shall pay to the Developer the sum of: (i) As to Separate Development parcel No. u only, fifty percent (50%) of the "TOT, " as that term is defined below, paid with respect to the hotel on such Separate Development Parcel in and for the ten (10) year period following the opening of luch hotel for business, but in no event i for any period after December 31, 2019 ; �.� (ii) Thirty-eight and one-half percent ( 38-- 1/2%) of the "Property Tax Increment, " as that germ is defined below, paid with respect to each such Separate Development y Parcel In an.I for the period commencing geege 7 of 18 ' t�8;15/88 FINAL r ly .. r• t 1 f, r �w'+:'. •dFnM��u n /a v. h, on the Disposition Transfer for each ouch ` Separate Development Parcel and terminating on the date that is ten (10) years following the issuance of a. final Certifioate of. Completion for the 5 Developer Improvements thereon, but in no event fcr any period after December 31, 20091 and • (i.i i) The interest received by the City and,/or Agency on the revenues referenced in -� subparagraphs (i) and (ii) immediately i f above from, the date such revenues are received by the City tend/or Agency through the date of payment to the Developer, which interest shall be • � conclusively assumed for purposes of this Agreement to accrue at the "Apportionment Rate" calculated by the controller 'of the State of California as the rate of earnings by the Surplus Money Investment } 1 Fund .for each Brix-month period daring the term of such payment obligation. Each payment required to be node as provided in this subparagraph (a) 3+1 be in thefull amount accrued .J through the end of the preaeidIng calendar quarter. In additive,, each payment shall be accompanied by a written statement from the Agency certifying (i) the tote l amount of "TOT" and "Property Tax Increment", received by than Cl-cy and/or Agency during the preceding calendar quarter (or, with aspect to the first payment due, since the Disposition . Transfer.) with . respect to each Separate s Development Parcel for which payment is being made, (ii) the date (es) on which such revenues were received, and (iii) the .1 i�alculation of accrued interest on such ar6ounts. (b) Dafinitions. As uaed herein, the following terns shall have th-a mean rigs ascribed: (i) "TOT" shall mean transient occupancy taxes paid to the City or Agency with respect to n hotel or hotels to be constructed on the Site, pursuant to California Revenue and Taxation Code Section 7280 et sej. , or successor � statute, with such anounrs determined on an accrual basis , based upon they City"o existing six percent (8%) TOT rate &s of the Effective Date of this Agreement, with the understanding that if the City --� hereaf Lter increases its TOT rate, the , ATTACMUNT NO. 5 Page • of is 08/15/88 rINAL 1 Y 1 �, r ,.' J SOr• 01 l Developer's fifty percent (50%) share �-� shall continue to be calculated ansuming the existing six percent (S%) rate; and. tie) "Property Tax lncreme»t" shall mean 'the amount of property tax revenues paid with r*spect to each Se0arate Development Parcel on the Site and allocated to and received by the Agency pursuant to I California H'aalth and Safe wy Code Section 1I 33670(b) or successor statute, plus any identifiable California state legislative subventions, supplements to, or substitutes for such revenues . Not by way of limitation . of the foregoing, the term "Property Tax Increment" shall .,j include (A) payments made, to affected taxing agencies purstlarnt to California health and Safety Coda Section 33401, whether su;:h payments are made by the Agency oe directly by the County of orange, (S) funds set aside or expended by the Agency pursuant to California Health and Safety Code Section, 33334 .2 . and (C) the portion, if any, of the aforedescribed property tax revenues not available for payment to .the Agency in a particular year because the Agency has not incurred indebtedness to collect such revenues. (c) Source of Payment. on or before the date Y.YI��Y specified in Item 1. 9 o! tho Schedule of Performance (Attachment Ka. 4) ; the Aq' 'i cy shall adopt an ordinance under California Revenue and Taxation Coda Section 7280 . 5 whica ordinance authorizes the Agency to levy and;or collect a sufficient amount of transient .occupancy taxes generated from the hotels to be developed on the Site to enable the Agency to timely satisfy its payment obligations to the Devoloper in acgordance with this Method of Financing. Said ordinance shall provide that, in the e'.Yent the Agency fails at any time to make payments to the Developer in the full amounts reguitbd to be paid hereunder, and such failure continues for a period of thiryt (30) days 5fter written notice from Developer to the Agency, such ordinance shall automatically became operative. The Agency agrees to take all actions nocessary aid appropriate to implement such ordinance in order to accomplish the parties' mutual objective of anabiOng the Agency to timely meet its . financial obligations under this Method of Findneing. Until Developer has been paid or reimbursed all amounts due from the Agency hereunder (or, as to the payments to be made under this raragraph 4 only, any unpaid balance is ATTACBZElM *0+ a } sage 9 of Is 08/%5/89 FINAL r N i .A Developer' s fifty percent (50%) share shall continue to be calculated assuming the existing six percent (0) rate; and ( ii) "Fropeipty Tax Increment" shall mean the amount of property tax revenuer paid with � respect to each Separate Development Parcel on the Site and allocated to and �? received by th4 Agency pursuant to California Health and Safety Cade Section 33670(b) or successor statute, plus any .� identifiable California state legislative subventions, supplements to, or substitutew for such revenues. Not by way of limitation of the foregoing, the term "Property Tax Increment" shall include (A) payments made to affected taxing agencies pursuant to California •w Health and safety Code Section 33401, whether such payments area made by the Agency or directly by the County of ' Orangd, (S) funds set aside or expended by the Agency pursuant to California Health and Safety Code Section 33334.2, and (C) the portion, if any, of the aforedescribed property tax revenues not available for payment to the Agency in a y particular year because the Agency has not incurred indebtedness to collect such revenues. (c) Source of Payment. on or before the date specified in item 1 .9 o e 9c�� of Performance (Attachment . No. 4) , the .'agency shall adopt an ordinance under California Revenue and Taxation Code Section 7280. 5 which ordinance authiokizes the Agency to levy and/or collect a sufficient amount of, transient occupancy taxes generated from the hotels to ba developed on the Site to enable the Agency to timely satisfy its payment ' obligations to the Developer in accordance with this Method of Financing. Said ordinance shall provide that, in the event the Agency fails at any time to make payments to the Developer in the full amounts required to be paid hereunder, and + such failure, co' ntinues for a ;period of th,iryt (30) days after written notice from developer to the Agency, such ordinance shall automatically become operative. The Agency agrees to take all actions nocessary and appropriate to implement such ordinance in lis order to accomph the part l etv? mutual objective of enabling the -� Agency to timely meet its financial obligations under this Method of financing. Vntil Developer has been paid or reimbursed all amounts due from the Agency hereunder (or, as to the payments to be made under this Paragraph 4 only, any unpaid balance is A'lTICBXUT ft 6 S � Page 8 of Le i y r f 1 forgiven and discharged as provided herein) , the Agency shall not repeal , modify, or amend its transient occupancy tax ordinance in a manner that jeopatdiaes or impairs the Developer's right to receive payments in the amounts, at the time*, and subject to the conditions set forth herein. The Agency further agrees to perform all , obligations on its part to be performed (including without limitation the obligations set forth in California Health and Safety Code Sectlon 33675) which are a prerequisite to its , right to collect and receive suffiolent property tax revenues to enable Agency to timely perform its obligations to the Developer hereunder, and the Agency shall exercise reasonable diligence to timely enZorce its Frights to obtain such revenues for the benefit of the Developer. The sole source of payment of the indebtedness referenced in this paragraph 4 shall be (f) property tax revenues allocated and paid (or eligible to be paid) to the Agency from the �:. Site, (ii) tra-asiont occupancy taxes paid (or eligible to be paid) to the Agency with respect to the Site pursuant to the ordinance referenced above, and (iii) any other revenues lawfully available ti to the Agency which the Agency determine* in its sole discretion are available for payment hereunder. In this regard, throughout the term of the Agency•s payment obligation under thin paragraph 4, the Agency hereby pledges to the Developer all property tax r-= revenues from the Site and all transient occupancy tames paid (or eligible to be paid) to the Agency pursuant to the above- referenced ordinance, as rsquired to timely satisfy the Agency's � .; payment obligations hereunder. The Agency further agrees, at developer's expense, to prosecute a validating action pursuant to California Code of Civil procedure Section 860 at pudgmant,, . , to diligently rur—lue such action to a final non-appeal a,Oe and to eau • st efforts in such action to obtain a judgment validati"q the transient occiupancy tax ordinance to. be adopted by the Agency (and the corresponding ordinance to be adopted by the �+ City) and the pledge of the transient occupancy taxer pledged to they Developer hereunder. Notwithstanding the foregoing, it is .� understood that the obligation and pledgee rotor* in this 4graph 4 shall be junior and , subordinate to , any bonded indebtedness of the Agency secured by property tax revenues, ;t provided that the Agency hereby covenants that in establishing the: principal amount of any such bonded indebtedness it will sat aside and reserve for pa jrment to the Developer one hundred percent (200%) of that portion of the property tart increment attributable to the Site until the entire indebtedness referenced in this ki paragraph 4 is paid or the unpaid balance: is forgiven and discharged as provided herein. The indebtedness referenced in ; { this paragraph 4 shall not be an obligation or liability of the City. f 11'1T AMMOT NO. 8 Page 10 of 1• 08/15/88 FINAL n ` M (d) Allocation of Pa ants. For purposes of this Agreemont,,, the installment payments required to be made by the Agency pursuant to this paragraph 4 shall be allocated an follows: ( i) The first installment payments made by the Agency to the Developer pursuant to this paragraph , 4 shall be allocated to repayment of ar loan from the Developer to -, the Agency for the Developers cost of planning, designing, engineering, ' constructing, inspecting, and supervising the installation or those public improvements which ere the Developer's „tea remponsibility under the Scope of Development (Attachment No. 3) for which the Developer is not to be reimbursed i pursuant to paragraph 5 of this Method of Financing, including interest on amounts expended by the Developer for this . � purpose at the rate of seven percent (74) � per annum from the date costs are incurred until repaid in full . After the loan referenced in the preceding sentence • "„� has been paid in full , and after the close of escrow of each Separate .; Development parcel in the Residential Portion, the installment payments received with respect to each such Separate Development parcel shall be allocated first to repayment of a loan from the Developer to the Agency ii: the amount, of Three Dollars and Severity Cents -� ($3 .70) per square foot for each square foot of land area within each said Parcel (excluding dedicated streets and public rights-of-tray) , including interest thereon at the grate of seven percent (7%) per" annum from the close of escrow until principal and interest are paid in full . ` (ii) The balance of the installment payments WAN shall be deemed to be , allocated to a portion of the Delvel,ope v?s rental obligations for the Separate Development Parcels in the Commercial Portion of the Site, Developer's costs for demolishing and clearing existing improvements on the M Site, and extraordinary costs to be Incurred by the Developer for site preepa:atior, work due to factors such as the nigh water table, the load bearing �1t"1'11►C�1t3S�1''1' Rio. !i Page U of is 08/15/88 FINAL I l .0' 10 capacity of the soil, the need for extra drainage i:aprovements due to the low ! 1 elevation of the Site, and the high , corrosivity of the soils. (a) payee in Event of Assi nment. In the event + the Developer hereafter as—slins its interest in any of the separate Development Parcels its the site, the payments required to be made by the Agency with respect to such Separate Development Parcel (s) pursuant to this paragraph 4 shall continue to be made to the assignor unless the Agency receives written notice from the assignor directing that paym,�nts use made to the assignee. iI bi 5. AgencX Reimbursement for Certain costs ,Advanced by the Developer. In aCl t on to the n +ebta Hess referenced . in paragraph 4 above, the sum of the following amounts shall constitute an indebtedness of the Agency to the Developer: ( i) all of the costs advanced, paid, . and loaned by the Developer � . pursuant to Paragraph II .I of the Scope of Development (excepting i only the amount of any optional additional advances made by the Developer to effectuate the earlier-than-required relocation of tenants from the Driftwood Mobilehome nark, as providAd therein) , (ii) any "excess" costs, advanced or paid by the Developer pursuant f. to Paragraph II.A (4) (a) and (b) of the Scope of Development (Attachment No. 3) , (fie) all costs incurred by Developer with respect to the required improvements in the "spur" street and Walnut Avenue rights-cf-way pursuant to paragraph II .A.S of the Scope of Development (including all utilities to be located in the rights-of-way) ,, (iv) all costs incurred by the Developer with respect to the extension of the City domestic water line from its existing terminus at olive and Third Strestss to the Site pursuant to Paragraph IT-A(6) (c) of the scope of Development, . and (v) all of the costs advanced by the Developer pursuant to Paragraph II.A. G(d) of the Scope of Development for reabandonment of the existing oil wells on the site. The unpaid principal on said sum shall bear interest at the Developer's cost of funds (which shall be doclimentOd to the reasonable satisfaction of the. Agency's Executives Director) and which shall in no event exceed the rate of twelve percent (124) per annum, compounded annually, commencing on I the data the Developer advances, pays, or loans, such costs, and continuing until principal and interest are paid in full . Payment shall be credited first to interest dud and then to reduce any unpaid principal. The Agency shall pair the aforesaid indebtedness at the times , in the amounts, and subject to the other terms and i conditions set forth below•; t_. ATTA IMN? NO. s page 14 of is 08/15/99 MAL i - • d�1 (i) The amount of such installment payment to be made by the Agency hereunder shall be calculated as the . sum of the following revenues received (or eligible to be received) by the City and Agency: (A) Fifty Percent (50%) of too. "TO ' as that term is defined in Paretaraph 4'(b) above«,, paid with respect to each hotal on the 1 $its and received by the. City or Agency following the opening of each such hotel for business: and ($) Thirty . Eight . and One -Half percent (38-1/1#) of the "Property Tait Increment from,- the Site as, that term is ..defined in paragraph . 4 (b) above, paid wrath respect to each Separate Development Parcel on the Site and allocated to, and received . (or eligible to be. received) , by the Agency from ,and after tha Disposition Transfer for such Separate Development Parcel. (ii) The sole source of payment ,.of the indebtedness referenced in this paragraph S shall be ' (i) ' property , tax revenues allocated and paid .to the Agency from the site, (ii). transient occupancy taxes paid (or eligible to ba paid) to the Agency with . respect to . the Site pursuant to ' the . tranaient o*. upendy• tax ordinance to be adopted by the Agency pursuant to paragraph 4 (c) of this Method .of Fin ncfrg:, . and any, other revenues law, fu_l 1y available to the Agency ihich the Agency detieraine , in its sole discretion are : available '. for , payment hereunder. In this regard, throughout the term of the. -Agency!s payment obligation under this • paragraph ..S, the A pncy hereby pledges to the. . Developer sit property tax revenues from the sits and all transient occupancy taxes paid '.(or eligible to be. paid) to the Agency pursuant to the ' above- referenced ordinance, as required to timely satisf,!, . the Agency' s payment obligations hereunder. The Agency further agraes, at : Developer's expense, to prosecute a. validating action pursuant to California Code of Civil Procedure section 860 at she . , to diligently , pursue such action to a final non-appealable ' . judgment, and to exercise best efforts in such xTTAcMaaNr No. 6 - Page 13 of 18 08/15J08 FINAL r;1 � , now oil I , # action to obtain a judgment validating the transient, occupancy taco ordinance to be adopted by the Agency (and the corresponding ordinance to be adopted by the City) and the pledge of the transient occupancy taxes pledged to the Developer hereunder. The Agency further agrees to perform .. all obligations on its part to be performed (including without limitation the vbl igatic"ns ' set. forth in California Health and Safety. Coda section 33675) which are a prerequisite to its right to collect and receive sufficient ! .- property tax revenues and transient occupancy tax revenues to enable Agency to tiaely perform its obligations to the Developer hereunder, and the Agent snail exercise reasonable diligence to timely enforce, its rights to obtain such revenuers for the benefit of the Developer. Agency agrees .thAt until the indebtedness referenced in this paragraph 3- is paid in full., the Agency shall not amend, modify, or repeal the above-referenced transient occupancy tax ordinance, enter into any agreements, take• any actin-4, or fail to take any actions which hav!& the effvet, directly or indirectly, of jimbpardfaing or impairing the Agency's ability to pay the amounts referenced in this' paragraph S at the times such payments are due. Notwithstanding the foregoing, it in understood that the y obligation and pledges referenced irl this ;1 paragraph S shall be junior and subordinate,, to any bonded indebtedness of the Agency sacured by property tax ravenues, provided that the Agency , hereby caven3nta that in establishing the principal amount of any such bonded indebtedness it gill set aside and reserve, far payment to the Developer , one :hundred percent 3000) of that portion of the property tax nerasent attributable to the Site until the entire indebtedness referenced) in this paragraph, 6 is pea.id. The indebtedness referenced in this paragraph a shall not be an obligation or liability of the City. (.'•ii) The first installment payment due under this paragraph 3 sha 11 be made f i fteen' (13) days j following the error, of the first calendar quarter following the issuance of a' final j Certificate of Completion for the developer j Improvements on the Separate Developmant IMMMUM, Ito. 5 ,r Page la of la 06/15/i8 MAL i 1 f Parcel trom which the transient occupancy taxes and/or property tax revenues referenced in subparagraph (i) is being generated, and subsequent installment payments ahall be evade fifteen (ls) days following the and of each .,� calendar quarter of each year, with the amount i of each payment equalling the amount :.of ' ',revenues received (or eligible to be received) the City and Agency under subparagraphs � ) (A) and (B) during such preceding payment period, until a17, such amounts have been paid. (iV) In the event the Developer '.hereafter assigns its . interests in any ' of, the Separate Development Parcels in the Site, the payments required to be :wadi by the Agency with respect 1 to such separate Development Paroal(s) + parsuant to this paragraph s shall continue to be made to the assignor unless the A ency " receives written notica from the assignor directing that payments be made to the assignee. ' 1 In the event that, for any reason, the Agency fails to timely make any of the installment payments required to be made with respect to any of the separate Development. Parcels within the Commercial Portion, the bevelo r (or, if the Developer has assigned its interest in such. Parcel and in the payments to be received with respect to such Parc*l, the assignee) , in addition to whatever other remedies it may have . under its . 1ease, shall be automatically entitled to a reduction or offset of rent equal to the amwAnt so unpaid. 6. C "tion to 'Develaimr for Lost Rsnto Income. The Agency agrees to x mponsa e the Developer for ' lost rin al inewhi, trca tenants of the .-briftwood Mobilehome Park who . vacate t , �L"* piar to the applicable phese of develap�ant pursuant toMobilehose, acquisition and Relocation Rgmament, in atwordance with and oub►ieat to the following j�rovisions: The Agency shall have no obligation to compensate the Developer for any lost -� rental income from a tenant after the date that the Developer delivers to such tenant the required six-month "Notice of t Phase Closure" (as that term is defined in the approved Relocation Assistance Plan) ; A'N ISOM II'! not d Page is of IS � : • Oi�tS��� P�1�L i I 1 , V In no event shall the Agency have any obligation to compensate the developer for lost rental income accruing for the f period c=aencinq on and after January 1, 1997 t and In , cider to qualify for such compensation, the Dovelr)per shall maintain the , ownerls improvements in the " Driftvood Motiilehome Park (or ' portion thereof) in a good and cleancondition and in accordance with the Mobilehome Acquisition and Relooation Agreement, reasonable wear and tear excepted, and further excepting any demolition, clearance, and ccwnatrt,ctian Activity reasonably attributable to the Developer's contemplated development of the Site ; and (iv) The compensation to bra provided to the Developer hereunder shall be paid in the amount of rent that would othtervise be plaid to the Developer' and at the times that rent would otherwine be required to be paid (calculated in accordance with the limitation's on rent authorized pursuant to the Mebilehome Acquisition and Relocation Agr'eemont) , and the Developer agreas to provide such ' doauaentatiun an may be reasonably required by the Agency's Executive Director to verify such matters. 7. Conditions- to hgengX Payment Obligations. (a) Notwithstanding any other prevision of this Agreement to th4 caritkary, the 'Agency's obligation to contribute the finds ref.srin+c l in paragraph 4 is conditioned and dependent 'Upon the Developers performance of its obligations under the "I► rom"nt, sM the Agency `shall , be entitled to withhold any of s id rids between the time the X ency notifies the Developer that the i'eloper has' committed a material default (assuming such a default in fact has occurred) , in accordance with Section 601 of the Agreesterct, and' the time the Developer cures said default or comenc,;es and diligently, proceeds) to cure said default. Aftervards, hotrwer, assutainq this Agreement has not been termi- .d noted, the Agency's obligation shall be reiristated and shall survive and any ar,6unts withheld shall be paid. F ATTACM9 9' 1is s Page 24 of 118 08/15/ss VINAL 1 t. • h f' ONO I' (b) The obligations of the Agency to make avail- able those funds described in paragraphs 4 and 5 as to each separate Development Parcel are .conditioned and dependent upon the DeveeloorOm completion of construction of the Developer Improve- mtnts on such Separate Development Parcel $ S. Preleanent. The Agencymay repay all or an p y portion of its obliqAtion under paragraph 5 above at any time without penalty. 9. Taxl-z),ro t Financinv. To the extent that tax- exempt financing or taxable . niRcing is legally available, and Developer is eligible for such., financing, the Agency shall cooperate and shall exercise reasonable diligence to cause the City►, to cooperaite in obtaining such financing for the benefit of Developer (including any necessary allocations required under Federal, State, or local laws or reegulations) t provided, however, that all costs incurred to obtain such financinq and all responsibility for repayment of any loans shall be with the Developer, and neither Agency nor City shall have any liability with respect to such matters, to. Likited Obligation for off-Site Improvements. N'otwithstandinq any of er provision of a Agreement to the contrary, the Developer shall not be obligated to construct or pay or advance the costs for any off-site public improvements other than those improvements specifically referenced in Paragraph Il.A.s, b, and 7 of Attachment No. 3 . 11. Books and records. The Developer shall have the right at, any t me, upon seventy-two (73) hours after written notice to the Agency, to review the books and records of the City ►� and Agency pertaining to the City's and Agency"s entitlement to *� and rooeipt of TOT for the hotels on the site and Property Tax Incren*nt from the Project Area . 12. Arbitration. In the event of any dispute between the Agency incMihe Developer regarding any of Cho financial obligations of either party as not forth or referenced in this Attachnent No, Si either party may elect to have the dispute resolved by arbitration conducted within_ the times and in the manner, met forth in section ail of this Agreement. .r 13 . Additional Remedy for Default. In the event that, for any reason, - a Agency tails to timely make any of the installment payments required to be made to the Developer herounder, in addition to whatever other remedies it may have, shall be automatically entitled to a reduction or offset of any payments otherwise required to be made by the Developer to the Agency, including without limitation (i) rental payments under the amended Lease with the City referenced in section 201.7 and al'1"1'AC�q[F.M'1' NO. s Page 37 of is ..J ry �i i al A attached hereto as Attachment No. 6, (11) rental payments with respect to any Separate Development parcel in the Commercial Portion after the date of the Dispasition Transfer thereof, pursuant to the ,new Lease to be entered into between the Agency and Developer referenced in Section 302 of this Agreement, (iii) the purchase price for any of the Separate Development Parcels in that Residential Portion pursuant to paragraph 1 of this Attachment No: ,S, and (iv/) the learn to be made to the Agency pursuant to Paragraph tI. I of the Scope of Development. The Developer shall notify the Agency in writing haw it wishes any such permitted reduction or offset to be applied. The Developer shall further be entitled, upon written notice to the Agency, to assign its right ?� to any such reduction or offset to any permitted assignee of rr; Developerfs - interest with respect to the Site or aray separate Developnent parcel thereof 1 � 6/112/065580 -0001/003 r 'f 1 , y •r t ATTACMUM i NO. i Page 1S of zS 08/15/88 �'INAI, .1 R 7" 1 1 II . L O �XV_.PM RESTATED LEASE by and between i THE CITY OF HUA"T I N=N BLACK, A municipal corporation "Lessor" ' t � and �r ROBERT L. MAYER, to Trustee of the Robert L. Mayor Trust of 19820 dated June 22 , 1982, as amended r •-'•1 "Legeem" y dated as of August 13, 2998 a= r'• y'�r�T'•l•� 1C 1 • ' 1 to TABLE OF CONTENTS ARTICLE I . PR dISES AND TERM 1. 1 Premises . . . . . . . . • . . • . . . . . . . . . . . . • . . . . • • . . . . . • . 3 i� NsirVat�Ott • • • • • • . . . • . • . • • ■ . ■ . • • • • • • • • • • . • . • • . 3 1 . 3 Skneptions to Leasehold, $stater 1.4 Terra of Lease . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . 1 • s Termination . . . . . . . a . . . . . . . . . . . ■ . • • ■ • . . . . . • . . . � 1 .6 Possession ui the Promises • . • . . . . . • . . . • • 7 1 . 7 Date of Lease and Legal Effect . . . . . . . . . . ■ • • . • • 7 1 .8 Rent Commencement Date' : • : : . . . . . . . . . . . . . . . . 7 1 •9 Commencement Date for All Other Obligations ■ • • 7 1 . 20 Ownership of Improvements and . 8urnishings, Fixtures, Equipment and Personal Property; Lessee ' s Duty to Surrender L . . . . . . . . . . . . . . . . . . .1.21 The jDDAs' -Modification of DDA at Time 1�of Disposition Transfers . . . . . . . . . . . . . . . . . . • . 1p 144"2 Quiet Enjoymont . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 ARTICLE 11 . RENT w 2 • 1 Ini.tial Rt- 13 �» 2.2 Rent Incrs .4es . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Pa 2.3 Additiotaal . yments . . . . . . . • • . . . . . . . . . . . . . . . . . . 16 2 . 4 Place of Payment; Lute Payments . . . : . . . . . . . . . . . 16 2. 5 Lessor' R ' Right to Audit is ' . 8 go Abatement of lint . . . . . . . . . . . . . . . . . . . . . . . . : . 19 2.1 Rent P'resse . . • . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . 1S ARTICLE III . LESSEE' S RIGHT OF FIRST REFUSAL TO FURCHhSE PREMISES 3 . 1 Lesuee' s RIight, of First Refusal to Purchase Promises 21 . I ARTICLE Ili. [RESERVED) ARTICLE V. TAXES AND ASSESSMENTS 5.1 Losses ' s Obligation for Taxes . and Assessments . . . . . . . . .. . • . . . . . . . . . . . . . . . . . . 24 ft wi a !�� No$ 8 y . r • yy l �l i141C,/ � '� � �� 11 , • "Ai 6 p1►e ms " I( I , - r, + is IN 1, ARTICLE VI . [RESERVED) ARTIt� Vii. VSE ANA COKPLIANCA, WITH 1aAW ` + use 4f promises 31 7s►pt af. thew= •Easements r w . • . . • . • . 4 • 7 .3 Wra-Discrimination • •. • w • • 9 0 . . • • w . • • , 34 ARTICLE NI11 . LISSOR COVENANT TO RESTRICT r USE CE C I T'Y BEACH PROPERTY .9. f 36 0.1 Atistrictions on- Development on City Beach ( rty. . . . . • . . . . . . . . . . . . • • . . . . . . . 40 " 3.3 40 9.4 Prop4i•ry to be Elanefi ted by Ci ty' s Covonant• • . 41 8. 5 Covenants Run With The Land; Rec' ordatiah ofMsmoran6m of Lease. . . . . . . . . • 04 . • 0010666 • 1 4 42 ASTICL4. :I . MA I NT5gANCE OF LEASIM PREMISES S 9. 1 Lessee s Obligations for Maintetatics . . . . . . . . . . 43 ART I CU X. INSURANCE ANIL, I NDEMN I TV 1C : I Lerss4' a , Iusurance. . . . . . . • . . . . . • . . . . . . . . . . . . It went, ,to IndeMiMy and Hold Harmless . . • . . . . 57 j 20•3 empt#�i RI•.O ' :L*ssor`.... • • • • • . • • r • r r, • • • r • • • • • r • • • • S� '10,<4 • ji&iwr of Subrogation . . . . . . . . . . . . . . • . . . . . . . . \ . 59 - ARTICLE XI . UTILITY CHARCES t,• JAR I CLX 'XI T. -OL SET STATFM ti't, ` \ �•. 13• 1 ' of f oset,,statement • ♦ w • • • . w ^ • • . • • •,• • • . • • • • • • • . • • 60 :;11. 3 Attornuuerit • + . . . . . . . . . . . . . . ,. . . . . , . . . . , . . . • . . . 61 13.3 ' 'Subordination . . ,. . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . 6 12.4 No Subordin#11on of Fo,e w • • • • r • • . • • w • . . . • 3 . • . . 62 ART ME X111. ALTERATIONS AM ADDITIONS • t •... 13 . 1 Alteratloha and AMit,ions . • • \ Y • • , • . • Y • . • • • • . • • 63 i