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Robert L. Mayer - 1993-06-14 (13)
r j, { a .1 j those ordinances, regulations, rules, and official policies in force as of the Effective Date of this Agreement. Any Lniendmont to said ordinances , regulations, rules, or official policies after the Effective Date of this Agreement shall not i he applicable to the Site or the Project without Developer' s prior written consent . This Section shall not, preclude the application to the site or the Project of changes in City laws, ordinances , regulations, rules, or policies, the terms of which are I reasonably required for public health or safety reasons or changes which are specifically mandated and required by changes in state or federal laws or regulations as provided for in Government Code Section 65869. 5 . �.: This Section shall net be construed to limit the authority of the City to require Developer to pay the applicable processing and development fees and charges for land use approvals, building permits and other similar permits and entitlements which are in force and effect on a uniform city-wide basis at the time such fees are due, subject only to the following: (i) The Developer shall not be responsible i . for paying any now or increased fee or charge to provide or contribute to improvements or services not required to r .s be provided or ccntributed to by the i lugs, 31 of 51 r. 08/15/8$ FINS 1 e1 Developer under the City' s ordinances , regulations , rules, and ofticial policies in force as of the Effective Date cf this Agreement; and ( ii) The amount of any increased fee or charge y after the Effective Date of this Agreement shall not exceed the increase in the reasonablo cost of providing the improvement or service for which the fee or charge is imposed. J . Other Governmental Agency Permits . The City agrees to assist tha Developer and Agency, at no cost o. expense to the City (other than overhead and employee stuff .� time) , in securing any and all permits (but not the payment of fees) which may be required by any other governmental agency affected by such construction, development, or work, including w'ithoti,:, limitatic:.i (i) encroachment permit(La) from the California Department of Transportation for an'y work within the right-of-way along the 'Beach Boulevard and Pacific Coast Highway frontages of the Site (such as curb cuts and the pedestrian overpaes(es) ) ; (ii) approval from the California Department of Fish and Caere and United States Fish and, Wilddlife Service for the wetlands mitigation required for any identified wetlands on the Beach Boulevard F.amnant irk ATTAt lXit NT no 19 2 Page 22 of fl VIA. 08/15/8S ZYNA . t i i Parcel ; and (iii ) approval of any coastal development permit (s) required from they California Coastal Commission. K. Tran ;ient Occ2ancy Tax ordinances . Prior to the I::ffectiva Date of this Agreement, the City and Agency ti have each adopted ordinanceu Linder California Revenue and Taxation Cork Section 7280. 5 which ordinances in effect transfer from the City to the Agency the authority to levy and/or collect a sufficient ariount of transient occupancy taxaj� generated from the hotels on the Site to enable the Agency to timely satisfy its payment obligations '.o the Developer in ac::ordance with the DDA. Said ordinances M p~ovide that, in the event that the Agency fails at any time f to makes payments to the Developer in tha full amounts required to be paid in accordance with the DrA, and such failure continuts for a pari-)d of thirty (30) days after t,r;:ittpn notice fron Developer, such ordinances shall automatically become operative. The City agrees to tAke all actions necessary and appropriate to implement such ordinances in order to accomplish the parties' mutual objective of enabling the Agency to timely meet its financial •�� obligatione under the DDA. Until the Developer has been paid or reimbursed all amounu""t due from the Agency under tha DDA (or, as to they payments to be made and )r Paragr:Aph 4 only of Attachment No. 5 to the DDA, any unpaid balance is forgiven ..r and dischLrged as provided therein) , tho City shall not ATTUMONT no, 8 page 53 of S1 08/15/80 FINAL , j t ' 1 1 , repeal , nodify, or amend the City ordinance on this subject in a manner that jeopardizes or impairs the Developer's right to receive payments in the amounts, at the times. and subject to the conditions set forth in the DDA. i Section 2 . Annual Review of Develo eF i s Compliance With ► Agreements Default ; Remed;Termination. ' A. Annual Review. In accordance with Government 1 Code Section 65365. 1, the City shall periodically review whether Developer is pro ceding in goon faith to comply with �. this Agreement. Reviews shall `-e conducted annually, with the first such review to occur within twelve (12) months after the Effective Date and the last such review to occur no later than the final expiration date rtiferenced in clauses (i) , (ii) , and (iii) of Sect-!on 3 . E below. The City shall heyin the review proc,-aQding by riving notice to Developor that the City intends to un3A-rtake a periodic review of the .Agreement. The notice cl-.;nil be delivered to Developer at least thirty (30) days in advance of the time at which they matter will be considered by the Planning Commission . .�: The Planning Commission shall conduct a pubUc hearing and shall determine on the basia of the evidence W' presented at tha hearing whether or not Developer has, for the period under review, complied with the terms and M conditions of the Agreement. At the conclusion of the pu,ilic r, 71TTJ6(MMNT no. ! page a+ of 51 04/15/88 FINAL I, 1 ti _ i \t I I) +7 1 hearing, the Planning Commission shall either find that Developer has complied with the Agreement or, if it finds to I the contrary, make its recomiac:iidPticn in writing to the City Council regarding the appropriate action, if any, to lie taken. The City Council shall consid"r the recommendation of the Planninq Cnimissior and, if the City council determines can the basis of theevidence that the Developer has rot i ' complied with the terms and conditions of this Agreement, the j City shall have such remedies for default as are set forth in Section 2 . B below. A City Council determination that Developer has not complied with any of the terms or conditions of this Agreement shall be a final administrative determination of such matter, but shall not be conclusive in any %zbsequent Judicial action and Developer doers not vaiv.!z, any of its nights or defenses with respect thereto. Failure of the City to timely conduct a periodic review pursuant to this Section 2 .A shall not in any manner Invalidate this ' Agreement, nor snail any such failure in any way diminisn, impede, or abrogate ::ha r,,ghts and privileges of the Developer hereunder or the obligations of the City her eund*r or the obligatinne of the Agency under the DDA. 0. Defaults--General . subject to extensions of time by mutual consent 3n writing or as not forth in section .'..c below, failure or delay by eitheix party to perform any, term or provision of this Agreame►nt shal] constitute a 04/15/48 FINAL i I•� i I i default under this Agreement . in the event of an alleged default or breach of any terms or conditions of this Agreement, the party alleging such default or breach shall. give the other party not less than thirty (30) days notice in writing specifying the nature of the alleged default and the manner in which said default nv�y be satisfoc t ridy cured. During any such 30-day eriod� y , the p party Pharged :.hall not be considered in default. if the natures of the default in i question is such that it cannot reasonably be cured within i such 3U-day pc.iod, the commencement of the cure within such time period and the diligent prosecution to completion of the cuta shall be deemed a cure within s-a-h period. + Subject to the foregoing, aftar notice and expiration ni . the 3 G-day period without cure, the nc%n- def ault•i.ng party, at its option, may institute legal V.wl proceedings pursuant to this Agreement and/or givs notice of intent to terminate the Agreement. Any action by the City to terminate this Agreement shall be in accordance with Govern- sent Code Sections 65865 , 65867 , and 65869 and Section 7 of City Council. nesolution No. 5390. Evidence of default may also arkae in the course of a regularly scheduled periodic review of this Agreement pursuant to Governatent code Section 65865. 1 , as described in Section 7.A above If city determineu thbt Developer is in default follosting th:a completion of -tee normal:.y scheduled Poore '$ of 51 0$/i�f 88 �'I�i11L i li 1 periodic review (and assuminer that such a default does i � fact exist) , the City shall. give Developer not less than thirty (30) days' notice in writing specifying the nature of { the alleged default and the manner in which said default may he satisfactorily cured. During any 6uch 30-day period Developer shall not be considered in default. If the nature of the default in qunstion is such thktt it cannot reasonably be cured within such 30-day period, thc commencavent of the cure within such time period and the diligent prosecution to completion of the cure shell be deemed a cure within such period. if the default is not so cur-id, the City, at its option, may inotitute legal proceedings pti rsilant to this Agreement and/or give notice of intent to terminate this AgreEmellt, as provided in the preceding p&racraph above. C. Enforced Delay; Exten:ion of Tin+E� of ._ M _ - Performance. In rddition to specific p:..%vis.ions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreemnrt shall be extended, where delays or defaults are dua to any causes beyond the reasonable -� control. and without the fault of the party claiming an extension of time to perform. An extension of time for any , suc% cause shell be for the period of tha enforced delay only and shall commence to run from the commencers.2nt of the cause, and shall commence upon notice by the party claiming such Page $7 of It 08/15/88 FINAL t 1 extension , which shall be delivered within thirty ( 30 ) days after commencement of the cause . D. Legal Actions . to addition to any other rights or remedies and subject to the restrictions in Paragrnph A above , either party inay in-stitute legal action to cure, correct, :)r remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agrearr.Gnt. Such 1pqal actions must be 1 instituted in the Superior Court of the County of Orange, State of California, in an appropriate municipal court in that county, or in the Federal Court in the Central District of California. Notwithstanding the foregoing, %Ghe City and Developer agree that, subject to the provisions of ParagrAphs � D and C above, the City's sole and exclusive remedy for. a { default by the Developer iii fai3 ing to timely close a Disposition Transfer as to a Separate Development Parcel shall be to telemin:ate this Agreement with raspect to sucli portions of the Site as to which the DDA is terminated in � accordance with the ptovLrions of the DDA; provided, that a } teimination of this Agreement shall not limit or restrict the Agency's remedies for default under the DDA. a. A, licable taw and Attorney's Fees. This Agreement shall ba construed in accordance with the Yasuo of the State of California. Should legal action be brought by either party for breach of this Agreement or to enforce any -r ATTAI"MIBNT NO. 5 lags 30 of 51 / N Y f provision, the prevailing party in such action Ahall be entitled to reasonable attozney's fees , court costs , and such ' other cots as may be fixed by the court . F. Inaction Not a Waiver of Default. Any failure or delay by a party in asserting any of its rights and remedies as to any default ayall not operai--e as: a waiver rq any default o;: of any such rights or. remedies, or deprive such ps^rty of its tight to institute and maintain any actions or proceedings which it may deem necessary to protect, assert, or anforce any su,h rights or remedies . w. No�Cross--Default:,. Subsequerat to either a Dissposxtion. Trsa►nsster of a particular Separate Development par(;el or an assignment by Developer of its interest in such -.! Separate Development Parcel to an assignee permitted under the DIVA and Secti-n 3 .A below, no defa,ilt by the Developer or a permitted assignee 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 Developmant parcel aria no default by the Levelopar or a )ermitted assignee with respect to said separate Development Parcel shall be desued a 1„ default hereunder as to any other portion of the Site; provided, that nothing in this Section 2 .G shall be Anterpreted to entitle the Gevaloper to proeead with any phase of development prior to oh in violation of the phasing schedule met torts. in Section 1 .F above. A"ACB INNT XO o Vag* 38 rt it 08/15/88 FMAL C Section 3 . General Provisions. A. Assignment. Developer shall have the right to assign its rights and obligations under this Agreement, the Site, the Developer Parcel , or Separate Developnent Parcela on?.y to a person or persons or entity or entities to which Developer is permitted to:. assign_ and has arzj�iynad the !FDA, tha Site, the Developer Parcel, c%r a Separati Devela!im.wnt Parrinl or Parcels , as applicable, as provided in the DDA. As uped herein, the tern. "Developer' includes Robert L. Mayor, as Tr.•us:.ee of the Robert L. Mayer Trust of 1982 , dated June 22 , 193i , as amended, and any permitted asaignee of or sucreaessor to any of its rights, powers, and responsibilities hereunder. D. No Joint Venture or Partnership. City . and Developer mutually deny any intention to form a joint; venture or partnership, and agree that: nothing contained herein or in any document executed in connection herewith shall he construed as makinq City and Developer joint venturers or partners. ti C. Coved. The ]provisions of this Agree- .�' vent shall eonstituta covenants which shell run with the land comprising the Site, and the benefits and burdens hereof shall bird and: inure to all suceeAsor■ in interest to the pasties . hereto. Not by way of limitation o� the foregoing,, upon the termination of this Agreement with respect to any r rage 40 at Sl 1 i portion of the Site that is not the subject of a Disposition Transfer to Developer, the Agency shall succeed to any and all rights of Developer hereunder. Within ten (10) days aftbr the FffectiN�e Date of this Agreement, the City shall r:ause a ropy the Agreement to be recorded against the Site, in accordance with Government Coda Section 61.1968 . 5 . D. Amendment of }agreement. This Agreement may be aemonded from time+ to time by mutual consent: of the City and Developer in accordance with the provisicris of Government Code Sections 65867 and 55868 and pursuant to the procedures set forth in City Council Resolution No. 5390. E. Term. The term of this Agreement shall. commence upon the Effective Cate and shall expire upon the earliest of the following dates: (i) As to each separate Development Parcel wP'.r►in the Site which is the subject of a Disposition Transfei to Developer, the date on which the Agency issues its Certificate of Completion ! for tho Developer Impro.►emr'.nts to Ise constructed on and with respect to said parcel ; or (fi) his to any portion of the Site that is not the subject of a Disposition Transfer to Deval6p(3r (arid except as providers in Section IM C T^ above) ,, the earlier of (a) the termination of j ATTAC MUM No* 9 ,.� page 41 of St i i i the DDA with respect tc such portir..n of the I Site, or (b) Pecembur 31, 2010 ,1 or (iii) Such earlier date that this Agreement may be terminated in accordance with Section 2 above. Notwithstanding clause (i) above, as to Each Separate Development Parcel within they Site which Ls the subject of a Disposition Transfer to Developer, the following ;specific Sections of this Agreement shall continue in effect after the date on which the Agency issues its Certificate of Comp2eti.on and skull not expire or terminate until the following dates, providod that the De,reloper is not in defau't of its -obl ig4tiona hereunder: (iv) With respect to Section 1.E V'Use.;') , urit{1 December 31, 2087. (v) With respect to Section 1.� ("Transient ...i Occupancy ordinances") , unM the Developer has been paid or reimbursed all amounts due :From the Agency under the DDA. Upon the expiration or termination of this Ag:ea- ment for any reason as to the Site ur any portion th9re-,f, the City and Developer agree to %:coperate and execute any document reasonably requested by the other party to remove this Agreement of rsoord as to the Site or applicable portion 1 thereof. It is understood that a termination of this 1 Agrosme nt, shall not constitute a termination of the DDA, the !� page 42 of n 04/29/00 FINAL i .ti Existin4 Lease, or any other agreement to which Developer and V City or Developer and Agency may be parties ; the termination of such other agreements being governed by the provisions of those agreements themselves. F. Cooperation in they Event of Lega 1 Challenge. • In the event of any legal action instituted by any third party challenging the validity or enforceabiliay of any provision of thin Agreement, or any of the City'6 approvals) for the Project (including but nr)t limited to approval of the "changer of use" of the existing mobilsehone park on the Developer Parcel, relocation of the tenants therefrom, and the Relocation Assistanca Plan) , or ;:he Hobilehome Acquisition and Relocation Agreement dated September 19 , 1988,, by and among the Agency, Developer, the Driftwood Beach Club Mobile Homeownar'e Aasociation, Inc. , and individual mobilehoma owners or tenants, or any other action by eitbiar party in performing hereunder or under the aforementioned Relocation A ssietance Plan or ftobilehoms Acquisi�tlon and Reelncation Agreoment, as the same may be amended from time to time, the parties hereby agree to cooperate in defending maid action as not forth in this section ` .F. The City shall hftve the right, bfat not the obli- qation, to defend any such action; provided, that without. they Duveloper's prior `mitten consent, which con.:ent sh&11 not be unreasonably withz eld, City shall not allow any defa»lt car. ` 4 R'1"PRG'KIitEII"1' Mil s gags 43 .of s1 08/19/88 MAL i,+ • i ..i Judgment to ze taken against it and shall. not oriter into any settl3ment or compromise of any claim which has the effect, directly or indirectly, of prohibiting, preventing, delaying, or further conditioning or impai&ing the Developer's develop- went, use, or maintenance of any portion of the Site or Lmpa►irincj any of t:,iA Developer' rights hereunder or Under the DDA. In add{t i,:n, City shall provide reasonable assistance i.,) Developer in defending any such action, such assistance to, include (i) making avail;;ble upon xearsonable notice, and at no cost to Developer. City officials and et<playees who are or may be witnesses in such act.-!on, and (�,i; provision of other information within thn custody or g6nttal of fatty that is relevant to Al-'he subje4t matter c*. the ko. an. Developer shall have the obligation to defend any such action; provided, however, that this obligation to defend shall not be effs:Live if and to the extent that Developer determines in its treasonable discretion that such action is meritorious or that the int1rests of the parties justify a cawpromise or a sett,iement of such action. rn this " regard,, Developer*1 obligat�,bn and right to defend shall include the right to hire (subj-nt 4`o approval by 'ohs city) attorneys and experts necessary to detend, the right to proc6so and settle reasonable elaims, th& right to eater into A rebmonahle settlement agreements and pay arouant:, as required Page 44 of 81 09/15/88 F=AL Y • 1 E by the of su li snttloinont agreements , and the r ignt to t pity any judamont s against Developer, Agency , or :i.ty . If Developer defend!:: any such action, as sets fui-th above; It shall indennify a;�d nol;l harmloss Agency and City from and against any claims , los--,es , liabilities , or damages assessed or awarded agair'rt either of them by way of .jt-.dgment, ,ettlem rit, or s�ipul ation, but riot including any 1 iti.Nation expzaises or atta rney 's fees incurred by either- City or Agency In defending said action as set forth l:Esreir, '�avc or in the DDA. Notwithst-nding any other provision of this ,1areement to the :ontrary, all costs and expenaes incurred by Developer in defending -iny litigation arising out of the processing, approval, and/or implementa- tior, of the "change of u ae" of the existing mobilehome park on the Developer Parcnl , the relocation of the occupants of ,-Luch mobilehome park, , and payments t;.o or for the benefit of such persons shall be reimbursable pursuant to the DDA. In Vie event any iaich litigation invol;►es other claims or issues, the re;i.�►bursement: due to the Developer shall be a fair proration based v--on the percentage of time and expense allocable to those claia►s and issues for which the Develope::- iFs entitled to reimbursement and those claims and issues for which the Developer is not entitled to reimbursement. G . Enforceability _ of Agreement . The City and Developer agree that unless this Agreement is amended or ATTA+CRXZNT NO. 9 .� Wage 45 of 31 08/15/06 FXNAL OWN* i term{.nntF.ct ��ur: uant: -to the provicionn a. t bi. Agreement:, this Agreement shal.l. Y,e ei�forceable by either party heretic.) notwi_tbi:;,.andinq any change heireafter in any, applicable General k'Y;in., Redevelopment plan, specific Plan, zoning ordinance, subdivi 3 lcn ordinance or any other lancet uce ordinance or bui ldinr ordinance, resolution, or regulation, rule, or Voli.cy adopted by City. IT. Findings. 1. City hereby finds and determines that execution of this Agreement is in t h,-.-. best: interest of the public health, safety, and general welfar.:-u and the provisions of this Agreement are consistent with the City-Is General Plan. Except as specifically provided in the DDA, 2 . City further finds , based upon all information madR available to the City prior to or concur- rently with the execution of this Agreement, that there are no city ordinances , reg%ilations, rules, or official polizips im force as of the Etf©etive Date of this Agreement that would prohibit or prevent the full completion and occupancy of the Project d escribad herein. ? . Sevarability. If any term, provision, cove- nant or condition of this Agreement is held by a court of :ompetent jurisdiction to be inValld, void or unenferceab.le, the remaining provisions of thin Agreement shall continue in full forco and effect, unless the rights and obligations of AT"fr1OMENT NO. ! Page 46 of 51 0S115/88 FXNAL h;; the parties have been mate vi ally altered or abridged by such inval.1datien, voiding 017 unanforceability. Jr. "%operat ion; Execution of Doc. •invents. VAch 1Ja2;t.17 shall execute and deliver to the other all such other further instruments and documents as n::..;� be necessary to carry out this Agreement in order to provide and secure to the cther: party t.tie full and i_.amplcte enjoyment of its rights and privileges hereunder. K. Justifiable Reliance. City and Developer each acknowledge that, in investing its time, money, and expertise for the development of the Project, it will be reasonably and Justifiably relying upon the, other- partyls covenants contain- ed in this Agreement, and those specifically articulated in the ODA. City further acknowledges that the Project is and shall be considered a single integrated development project, and that the Dcveloper•s dr:vr�lopmetzt of each component of the Project is dependent upon its right Zo complete and occupy each other component, and that the economic, viability of each component of the Project is and shall be dependent upon the Developer' s right to complete and occupy each other component" and upon the City's full performances of its obligations under thie Development Agreemant. L. Notices. Any no'l.ice or communication hereunder betwe*n City or Developer sh;._.1 be in writing , and may be given either personally or by registered ox certified mail, ATTACHUNT NO ' Wage 47 of '�3 'W 08/13/8 3 FINAL ruturn receipt requeLtcd , Ilf given by registered or c%�xti-- !: ied mail , the same shall be deeniod to have berm giver z.nd .received can the first to occur of ( i) actual receipt: by any of thy. dasignatod below as the party to whom notic.,es are to be sent, or (ii) five ; 5; days of-er a registered or. certified I et*i• r contzi.ni;ig such notice . properly addressed, with postage prepaid, is deposited in the �Jnited States mail . If personally delivered, a notice shall lie deemed to hn Avpe been giv;!n when delivered to the party to whom it: is addressed. Any party hereto may at any time , by giving ten ( 10) days wr.i tt qn notice to the cthekr party hereto , designate any other address in substitut?.on of the Pddress to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses cc,t forth below: If to City: City Administrator City of Huntington Beacr, 2000 Main Street Runtirgton Beach , CA 92648 Copy to: City Attorney City ct Huntington Beach 2000 Main Street Huntington Beach, CA 92648 A'1'TACRUJPZ go. 9 lags 40 of S1 08/15/88 T'INAL 1 rrrr a 1 to D -,-eloper : Robert L. Mayer, as Trustee- of the Robert L. I-layer Trust of 3.982 clo The Robert. Mayer corporation 660 Nowport Cento.r Drive , Suite 1050 Newport. Beach, CA 92660 copy to: Jeffrey Oderman , Esq. Rutan & Tucker 611 Arrt:oa, Suite 1400 Costa Mesa, CA 92626 M. Entire A reement; Shivers. 'Phis .Agreement is executed in two duplicate originals, each of which is dfeme3d to be aai original . This Agreement consists of fifty-one (51) pages and five (5) exhibits which constitute the entire understanding and agreement of the parties. This Agreement integrates all. of the teems and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the patties with respect to all or any par lk of the subject matter hereof, excepting vnl y the DDA, the Existing Lease, the new hnd revised Leases to be entered into with respect to Separate Development Parcels in the, Commercial Portion, and any other agreements referenced herein. All waivers of the provisions of this . Agreement shall be in writing and signed by the appropriate authorities ' of the City and Developer, and all amendments hereto must be 4 7 t w� a1TTA11231MI P NO. Page 41ofdi ,i 08/15/Go FINAL 4rrr . in writing and sigric-cl by t lia appropriate authorities of the Cite ►nd Developer . N. Effective Date . The EffectiNic Date of th.it; Agrai=ent :..hail be the date that the City ordirarce adopting this :agreement becones effective , which data, shall be thi.r1ty ( 30) clays after the City Council meeting at which such ordinance is adopteO. ATTEST: CITY OF HUNTINGTON BEACH, a municipal corporation 1 I By: By: Its: city Clerk Its : Mayor THE ROBERT L. MAYER TRUST OF 1982 By : Its : Trustee Approved ati to Form: C .t.y Attorney 6/112/065580-0OO1/O09 a JiTTA ILNENT NO« ! lags o0 of 51 06/15/88 FINAL t; F i STATE: OF CALIFORNIA ) r ' S s . COUNTY OF ORA11GE ) On this clay oL 1988 , before me, the undersigned, a Notary Public in and for. said State , person-- ally appeared personally known to me (or proved to me an the basis of satisfactory evidence) to be the person wbo executed the within instrument as Trustee of thr L. ?Maven Trust of 1982 , dated June 22 , 10821 Zs amended, the entity therein named, and acknowledged to nin that he executed the within instrument . WITNESS my hard and official seal . Notary Public ST:= OF C ALIFOR.NiA ) ss . COUNTY OF ORANGE 1 On this day of , 1988 , before me, the undersigned, a Notary PublR Zn alld for said State, person- ally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to Le the person who executed the within instrument as the Mayor of the CITY OF HUIvTINGTON BEACH, the public entity therein named, and acknowledgcd to tee: that such entity executed the within instrument. WITNESS my hand and official s-al . IILt..ry Public �- ATTACMM NT NO. 9 pagre 51 of 31 00/15/88 FINAL ..rr. EXHISIT "A" 4v G CITY BEACH MAINTENANCE FACILITY z zl.a; rd "h�l`11" Polb. , 039 '� DEVELOPER PARCEL � w a 40 Ay 10 . N �„� ,r o tn IZ•N�! .�.f BEACH BOULEVARD REMNANT PARCEL PREPARED SY: dW .a.*lworowwr aft*•.Vm&r r►.�++.b Maio1 � NA M EXHIBIT "A" 1.0 0 boms",?b 0 few I EX111RIT "B" ALL T:-U'kT CERTAIN LAMD IN THE CITY OF IIUN'TINGTON DEACH, COUNTY OF 011ANCEr Zjj. E CALIFORNIA, DESCRIBED AS FOLLOW!i : THAT PORTION OF SEMON 14 , TOWNSHIP 6 SOUTH RANGE 11 WCST IN THE RANCHO LOS HOLSAS , AS PER fdA.P FILED IN BOOK S1, PAGE' 3.4 OF MISCELLANEOUS MPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,, DESCRIBED AS FOLLOWS : BEGj NNING3 AT TSE IN':EMCECTION OF r1 :INE T' AT IS PARALLEL WITH AND 50. 00 FEET WEST OF THE EAST Ll•"E OF SAID SECTION 14 WITH THE NORTH LIME OF THE %'OUTFI HALF OF THE NORTHEAST WARTER OF SAID SECTION; THENCE SOUTH 0 44 ' 2.2" EAST 1820_36 FEET ALONG SAID PARALLEL LINE TO THE NORTH! LINE OF THE LF.:oD DESCRIBED IN BOOK 7.353., PAGE 5 OF OFFICIAL RECORDS OF SAYP COUNTY; THENCE SOUTH 740 34 ' 22" WEST 45. 01 FEET ALONG 'AID NORTH LINE TO THE NORTHEAST LINE OF THE LAND DESCRIBED AS FARCE.. 2 IN BOOK 826p PAGE 379, SAID OFFICIAL RECORDS; THE;'CE NORTH 53• 05 ' 49" WEST 172. 33 FEET ,ALONG SAID NORTHEAST LIML TO THE WEST LYNE 4F THE LAND DESCRIBED IN BOOK 261, P'AGZ 41 OF DEEDS, RECORDS OF SAID COUNTY; THENCE NORTH 0' 44 ' 22" WEST 22.63 FEET r LGNG SAID WEST LINE TO THE NORTHEASTERLY RIGHT OF WAY LINE OF PACIFIC: COAST HIGHWAY AS DESCRIBED IN BOOK 455, PAGE 400 OF SAID OFFICIAL RECORDS; THENCE NORTH 53 • 05 ' 49" WEST 2242.93 FEET ALONG SAID NORTHEAST LINE TO THE; EAST LINE OF THE LAND DESCRIBED IN BOOK 13500, PAGE 1394 OF SAID OFFICIAL RECORDS; THENCE ALONG THE SOUNDARY OF SAID LAND THE FOLLOWING COURSES; SOUTH 30 46' 53" LAST 5.,78 FEET TO A POINT ON A NON—TANGENT! 1250.00 FOOT PMIVS CURVE THAT IS CONCAVE SOUTHidR'S Y A RADIAL TC SAID POINT BEARS NORTH 321" 06' 11 " EAST; NORTHWL.::. ,CRL-T 51 . 48 FZET ALON9 SAYD �', RVE THROUGH A CENTPLAL DINGLE OF 2' 21 ► 34" ; NORTH 60" 15 ' 23" WEST 7.1.94 FEET; NORTYERLY 45.79 FEET ALONG A 27 . 00 FOOT RADIUS CVRVE THAT IS CONCAVE EASTERLY THROUGH A CENTRAL ANGF E OF 970 09 ' 34"; NORTH 36« 54 ' 11" EAST 141. 92 FEET TO THE NORTHEAST LINE OF THE LAND DESCRIBED AS PARCEL 1 IN BOOK 8020r PAGE 73 OF SAID OFFICIAL RECORDS; THENCE NORTH 536 05 ' 49 " WEST 17. 00 FEET ALONG SAID NORTHEAST LINE TO SOUTHEAST RIGHT OP' WAY UAE OF HUNTINGTON AVENUE 60.00 FEET IN WIDTH; THENCE NORTH 36' 541 11" EAST 147. 95 FEET ALONG SAID RIGHT OF WAS LINE T" 1,4. ANGLE POINT MRSIN; THENCE NORTH 0` 421 59" WEST 21 . 61 FEET ,ATjrt4c SAID RIGHT OF WAY TO THE NORTH LINE OF SAID SOUTH HALF; THENt, " NORTH 09. 429 58" EUT 2905 .70 FEFT, TO THE POINT OF BEGINNINUot f (rl AItis - E. UT HIE o 3 EXPIRATION DATE: JUNE 30 1968 LXND ... O YCHE 1" 222 EXHIBIT ''8'' NO. 3118 �.. t . •• ..z + • F Ir T H E V/A.Ts, IF—.4.0 f Z F KO N T COMMERCIAL MASTER SITE PLAN Pursuant to Downtown q...pecific Plan Section 4.11 .02 r V • S a 1 .o . s •a • I 1 1 • s i. 00 jm jo Aw- t s+. Mk ps Ix r It AM Mai Y 1 i• . r • Alp s k ' 1 Wl $$$F4ea�a � q � 9Jq tj I S `iH 616 ts 44 � l , a t '� rFa to gWE � XX . a ., _.. t�- - r p fill E�jA6 J�117fQ j$s fl�3 . �s � a . y Aqwoved 6122,28 Page 3 of 12 A trr�irr�.c Ada bum Vow OMMOM Opm Space. ii ft"To snob tit smob o and sgvm moboi Aur A" to W ttaas�tasa atre- As itlsaas"d in tb a a.a.ter We rAa.,the bookstl'irtorw of saotw are =mated to� °gyp-Ka`� .rcaE a+rc i�s��aa t1�e iIncw —to k!a ll� Soota�s � e'�� `�pe� S�paot:��_w�e�txreiz` to orde•it, @mi t Ass~and as a a pod faaom d anti (aa now Pam}.Wit-mod bntk as umbesind C�iFiiybwsr�oad aepsrsled!a a�at�atr- tstast at w,ve9iapere:,�as pracvb:e nest par)�a italitisisrrsa■�1�lgtysrs#/11�i te,L9Pefs• as the iliouralloa entitled "tluPtliag Sraivi` apponmitie ImmthculveraantsGPM fie i-rt t-ar.. be PL*eoi ea,WAW&Cnrv�. :--s!'es unsnarl ogre alssiaie aPas bras Mae amw Hrtllt'koataieed bereie. ht.'ttee:s�rd�t�ial dtfttopwcw t-Ikc swkf t:� ie.1m&__-',wrade-Rs=iem.k,%ft:W=zpar,a-Cm nno"Memorm"ft gctisAaYtasaaR and doatsal I3kstriei o8S). .vmtim m*. ew pnwk win k civso !hors puh4c, bauu-c4 aieu nmt omft ttiM&teas iea:be hawk tlee tenon cent«and girt I tasMans ins paaug getwded teat Owme reran atiop"plw arc lacaged DW-ft.MC ICVCP of pvWr a:ns d-s seg ezxet#sa tpv&Qm ai oar fact P265e cow H.vtsrsl► fa proti'& bocftvWevil+�tEits�k�tt�erpsbrrc:cxt3+.simo�silranebc�� 7mmiq of Dwe;b mmt Yk-*q Lt7WAAU tc WL ru+b L-C 1'z ric Cry ziipis n. moe w'v+e"Ww"n' gwfjcs t xlcsau:t` tkw t aftsped ✓:a wain M PasdM d tit PsaJM sin!ems!'a Ana- Timing urns sh>:�:apt tx rsridrred aa::tc r er.�c Sec tDY i �*b alga isi MdWM 1D the aoe�liors� d>as fi�ilo+sx tt�st_ Vsk cubrAccm: tppicA teas ion a:6.e Pscric Protiacas r_sltevatn or. WdMoWnd M*Won d So Doaaslauw Spc%c the prrriZus}-;m1crerccd:!imam-- c+L Pia&A Prof tie projum*Abe dsokpwdaa� >Rhm ft flog!Ch"S id Ail +Nadu weien will be tzkcs (nun Walma 9MI SC bdWOPOW bm asdltsett nA saocftm a Q is pilaw-ed to in the SO a6 Avow the mom& "st,-ect,Hantim"n 5irtet tktia/dist*atI"as In I&.cow"of a 9ata1 19Apaadl+e indeeaynt�of 199i?W&bM a d 14vod+Board. No:-cttiociat ocuse*4 be 1 '1. Avem v go be=dcode3 total tlstltilg1gtm UMt to taken kcwn Pacific COW Hit "y to a"d iiLTic i■iit pi`!a SM Mitt PM Xl 4 sW.M da comas od fC cc tie!brae I site. on tie higbwsv and to proaidt . VftW1 IINim1dmma dlbe!a/J LzAmmtnbsw&= wptcd pedwrian orcutelran alwc the `.Pvii-c l tit salab.tila)iad u4ma rws mind b doaalss sic+ttd I'lisra 1 'attsda sr!!lentil(.ate P-ramuea�"iisear park S slraaosci tietiidisifasdsaatltosted @f ���'�` CosspL-tlatse:ll MAL Phase 2 is ptatrssed tm be snn- t� asiaalneaa■taalalea��so�npaoe steal itsactd aoeassscatlrr.raA passe 3� +� be&BOOK bn&swm and ctwnumd mini Padk�ie+s Cilra � � a ft tttr•t dowse d attodw 13 sad W&isecsttral n A Cdnkrmn mod � Coaptet M is 19M pstemlion of Walnut Awa r, :W wa,►prW&U P*6C PWW fiAfl kats f a.d ao,s�oc:ar sir«t so Fad c Coat".4 t;w". be%="cads;hale sit tic'P:ld&Praa►eos&. i rstws pwk lmtn Pacific Cosa i5gl6rrf aa6 = � PMtt� eatilt H" Beath Bauksac'd tnsd a puNk si&wa&on Wolons CaaoPkdm is IV4. Avenue and Rmdergte+o Stint. Kd 6msby.two A asisaist skpW Pcoiio wdl be adslitd fix the pedeauins u+:zPsocs ovu Tadfic Gout:itlsmj Pa*w an wl mud OR lipase at an silt lie Pita■s. an"momisi Ptss wW be prorldcd that will puNWe a dire a scree meltw u*be dukPW io veneal lit itwov uwd Compkiwo I9a& benvet s the psojrxi and the heae%. Lavf y, two women~of aB tit Flosses at an prsjtet and to blemcf Pedtwt 46 pole d uo%h Om-rr*ct will least the W§006=4 w O tit wd&osae of Me ptr>M :!rate f- I.iearn Mmd !agates rrsidealid derelopraeat to the ltOrlil j?esi- 199L &wiat DkLrict 0") wish the pu:csWm arse- 1 -MWW aert PW.%EC Coast Hioway.See the MUM-a- tiaaentitled`itiublic Irl},:are-ncests"_ t lyib At Zkz o 49 gat IL - xv jet �.� fn ��; 13 EXHIBIT "C" �V i it Appo 6122188 C { �s a 'IC COAST QMWAY gamma f MAU MAW m ;-MI A U Y t9 son am""m sw.i No Amm cowoomm omm K.-Mft fora Ud*VOM oaAU ;,'L�y s'M,cswie ►i G' OVANEr- H as -salts -no" /rwu Je bus + O"T aML Siam "win MC m t" ctimro iiwq MUTII ALL-%R!MOM sr-.t•wG KAU \UMOT MOTH - r.1pi� fFt{MC f11�M;TWt _ i Ci3MMERCY MASTER SITE PLAN r �.y J S ' � !1* JIB •�!• ��• 1114 ��� � ._ i:....� ' ,ram �i • _ .,�1._..._ �. wj 1204 L♦rr♦� � rs f, ._.� rl : =__` r. .—•e"1+ _ � �.`-++-� — .•r•-i•:�: '.wai:..�'�..y;'�r,• !►T+ , '�r5!•,�"',A'+1�.,A.�."Lwi.rV�--•�"-�.w.:jr-O �s. r r J t • a • 1 - y - 3 T Yy ��• � �i'1 1 �.. a �1 2 Idl Jill f J - T \.t �. _ ram- �,,�.•r: . #- ___,T - {•'TTR;�,1:, �: _ � J � �. op ��* .+ �e � -" '� � �;� � �I Imo; � # �► �� i t . • i r A .y. . r �. 1 . oil lot A \ I. 4 � oo tv 0 7, ,; ,r7 ��; CON CEPTUAL RESI DENTLA,i 4.:. ... �. � iPHASING EXHIBIT Lao u: Mel L5 I r \ c 3\ awsc w e raa R:�■ � — r• mmm >J+ � �i N �e maw wa ow O3-3 t � mm m ani m su 'ma'asa� s�anarm�a -.�-- _ -- - --_ - _— - ----_ TIICWJGEQl�iZ idL r AiN! I!!i!t -.�.r ate.... •-!1{fi!W - L/MAY qC saw nr wa xa�r�erw uws.c[�aa au-were wrrr_ APPRQVMA E C"A EAS: �crwr rwr eE oE�als�Eu sr — Crdm goi.L RESIDENTIAL A MMFM a !LM! SM wwmG FUIN" Tt eE M"DYED M IM naleloa sax!lrrme pum6pu lrr To FMOA w 4.t 6 al OF THE �� � ��TOFIr! � ]l Gf TOT�K m I PUNK P Alt OYMN ease FUNLWC CWuoE"TMM *,w casrlMals Im ALTgo MMMMM nT Tim cone nuAL sa ADVAKS smmu A 10 AL 50% A 12 jc 5016 _ 5 5 aF 25T, B 5 •c. 25% _ C -5 x- _DS £ W_ _3S _ 20 jw- 100% 2: we 100% TH E NNYATERHUNT. ! ' t `4 r� t� s 0 r ■ y MM R s i so ra arrr xrr pp p ' eslat � R � 1fvt In My * As * g� UI oil * r M M � � • � b w a~. w r w r p a ataR k � Ka� avt A az40t' Mt M M M • R r r ra n M r r trR p rpp !� a a� aRK K1RM >3 M >Kl1t MMMM .. i 4 EXHIBIT "E" Approved 'title Exceptions The "Approved Title Exceptions " for the Sity and each Separate Development Parcel thereof, as applicable , shall includes 1 . The City' s interest: in oil , gas , hydrocarbon substances , and minerals of every kind and character lying, more than 900 feet bewl.iw the surface, togeetber with the right to drill into, through, and to use and occupy all parts of the Site lying more than 500 feet below the surface A thereof for any and all purposes incidental to the exploration for and production of oil, , gas , hydrocarbon substances , or minerals from said Site or from other lands , but without, however, any right to use either the surface of the Site or any portion thereof within 500 feet': of the surface for any purpose or purposes whatever . Z . Any and all water , water rights or interests therein , no matter how acquired by the City, together with the right and power to explore, drill , redrill, remo-ae , and store the same from the LA Site or to divert or otherwl,se utilize si.,ch water, 4 water ri4hter or interests on any other property ' owned or leased by the City, whether such water Li rights shall be riparian, overlying, appropriativee, percolating, littoral, prescriptivee, adjudicated, statutory, or contractual; but without, however, any right to enter upon the surface of the Site in the exercise of such rights and, pcnvideed further, that the exercise of any such rights by the City shall not result in any damage or injury to any improvements constructed on the Sitea, including without limitation any subsidence of all or any ' part of the Developer Improvements to be constructed pursuant: to thin Agreement , 30 Seteceeption Nos. 3 (as to then-current taxes anei ;d ahise,:sssments ) , 2, 6, 7 , and 9 in Schedule B, So.ction 2, Part 11 of that certain Commitment for } { Ti.tlee Insurance dated December 8 , 19861 as supplemented on January 23, 1987 , and March 27 , `''' 1987# issued by First American Title Insurance e Company covering the Deve lopmc parcel (OR-1455792) • 4 Such other exceptions to title as hereafter may be smatually approved by the Agency and Developer . • EXHIBIT "Z" .rri IM1' u rW .1 FIRST AMENDMENT TO DISPOSITION AND DWEILOPMENT AGREEMNT By and Between THE REDMMLOFiNEWC AGENCY OF TFIE CITY OF HUNTING ON BEACH and ROBERT L. MAYER, as Trustee of the Robert L. Mayer Trust of 1982, dated Junes 22, 3.982, as amended THIS FIRST AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT (the "First Amendment" ) is entered into this 17th- - - — day of. June � , 1991 ( the "Effective Date" ) , by and between the REDEVELOPMENT AGENCY OF THE CITY OF HUWTINGTON BEACH (the "Agency" ) and ROBERT L . MAYERS, as Trustee 6f the Robert L . Mayer Trust of: 1982 , dated June 22, 1982 , as amended ( the "Developer" ) . The Agency and Developer hereby agree as follows : P F. A. On or about August: 15, 1988 , the Agency and Developer entered into a Disposition and Development Agreement (the NDDA" ) . B. Paragraph 5 of Attachment No . 5 of the DIIA Provides , in pert , for a schedule for repayment oL certain indebtedness of the Agency to Developer which schedule the partiez now desire to L•evise . 1 i r �r� s , ,a 1 . Q T 1. Subparagraph (aii) of paragraph 5 of Attachment No . 5 (at pages 14-15) shall be revised to read az follows : "The first installment payment due under this Pavagraph 5 with rwipect to the hotel un Separate Development Parcel No . 1 shall be xaade ou July 1 1991 and subsequent installment payments with respect to the hotel on Separate Development Parcel No . l shall be made fifteen (15) days a following the end of each. succeeding calendar quarter of each year . The first installment, payment due under this Paragraph 5 with respect to all othesr Sepr.rate Developmenh Parcels shall be mane fifteen ( 15; clays following the end of the firsh calendar quarter following the issuance of a final Certificate of Completion for the Developer Improvements on said parc:el;s) from which the transient occupancy taxes and/or property taa: revenues referencerq in subparagraph ( i) are being generated, and subsequent installment payments shall be made fifteen (15) days following the end of each calendar quarter of each year . The amount of each payment " • shall, equal the amount of revenues received (or eligible to he received) by the City and Agency under subparagraphs (i) (A) and (B) during such praceding payment period, until all ;y such mounts have been paid . " , {Y I �11.► t J 1 • a 2 . Except as amended herein, the DDA shall. remain in F effect in acmordancH with its terms . REDEVELOPMENT AGENCY OF THE CI OF fift]�TINCTON EACH By: a a a n —" ATTEST: efftx f I w Agency Secretary APPROVED,�,fa TO E'ORNt; INITIATED AND APPROVED AS TO CONTENT Agency Special Counsel Deputy City Administrator/ Redevelopment REVIEWED AND APPRGiT zD APPROVED: AS TO FORM: Lot to,- . �. C ty Attorne ✓Agency � City Administrator Attorney b����r- Executive Director ROBERT L . MAYER, as Trustee of the ROBERT L. MAYER TRUST OF 1951, dated June 22, 1982 , as ar•tended � � -- By: • { ROBERT aq. 14AYEW 1 2- f ass• r33ECOND VIENUMENT TO Dlr: POSITION AND DEVELOPMENT AGREF;IEN`!' B�► an(i Amoruy THE REDEVELOPKENT ),GBNrY. OF THE CITY OF 11UNT'LNGTON BEACH a»d ROBERT L. MAYER , as Trust:te of the L. Mayer :['rout of 1962 , tlat eU 7,.!n& 22 ., 1.982 , ac.� aniF'.S1ded TH19; SECOND &MENDMENT TO DISPOSI T.'lni4 Pill ) DEVk;LPiPMENT AGREFMENT (the "SOa.cond Ane.nln?nt:") is ent:ernd into this 1st day of August, 1991 (the °'Effect-tvc. Datc:11 ) , by a,11d wno,i? the REDEVELOP EOT AGENCY 0 THU. CIT .." �.:�' bUPJ"''-N����'O?r LZ A CIi (t had RC1ir3LlZT I.. thc; Pob ::t rj. , iayc Trt`a o 1962 dat:c.d -7une 22_ , 3.982 , �,_ ainen►�.e ( "Il3yer") , and TIATERFR.ONT C'.0USTRUC:T'101i NO . ? , a, California 'limited partnex ! a).,Jp ( "Wat:,2rf-ont'' ) the 1p1='�trt:i�rff� . R `; C: :t: 92 A L S A. On or about August 15, 19C8 , the l f.fenc,r a.id Mayo enter-,-iA into a D .spu:.j.4-icn and Deve.-Io:nnnt Agreement (the 1101-igi.nal DUVI % on or :ibout: April 1.0 , 1111t39, Mayer, waterfcont, ar)d certain aft?i i.at:ad entities entered .1.11tj an Assignment and As&umip*6,Jo:j Ag;,ae cant pursuarfi, to which Mayer assigned to Watarfrw&t and Waterfront assumed (throug?i ek a;eries of arosig=ents to the -affiliattod entities) all of Mayan s right, title, and interect it j%nd to that portion of the "Site" described its the Originaw DDA t.s ".Separate Development Parcel Flo. 1. " 8/5/91 'rid '�: •'� �► , .,t.••. �. glob i C. On or about June 17 , 1991, the Agency and Mayer entored into at First Amendment to Disposition anti Development Agro*nent (the "First Amendment") . The Original DDA and the 41rst Amendment are collectively referred to herein an the , "gxistinq OVA. " Waterfront has executed a do,-=m ant consent- ing to the First Amendment. D. Attachment No. 5 (the "Method of Financing") of the Existing DDA sets forth the method of financing the Fartiev obligations under the Existing DDA. The Parties desiree to amend the Method of Financing as set forth in this Second Amendment. E. On or about November 7,r 1985, the Agency approved an' Investment Letter and Agreement (the "Investment Letter1°) wl" Mayor ane issued a bond designated an Agenc:y'a Taxable Tax Allocation Bond, Issue A of 1998 (tlw "Bond") implementing certain provisions of Attachment No. 5 of the Existing ODA. On or about August 1, 1989, Mayor executed the r • Investment Letter* F. Mayer and Waterfront have ra uested the appr6val of the Agency to the assigramout of certain payment. rights of YAyer and/or Waterfront under. paragraphs 4 and 5 of Attach- ment No. 5 of the Existing DDA, as amended by this Second Amendment,, to provide for the issuance by First California Capital Markets group, Inc. (flFirst California") , of the 66, 100, 000 Cortificatees of participation evidencing propor- tionate interests of the oovmers thereof in the 6bove- reefexenced payments to be made by the Agency to First Y�� 1 1 1 1 1 California. In furtherance thereat, Mayer, Waterfront* and yirst California have entered into that certain Assignment Agl,eexent dated August 1: 1991 (the "Assignment Agreament") , and gayer, Waterfront, Firot/ California, and the Agency hive entored into that certain Consent to Assignment dated as of August i, 1991 (the "Consent to Assignment") . The payment: obligations of the Agency under the provisions of Attachment: No, a of the kxisting DDA, referred to above, which had previously been evidenced by the Bond, will, pursuant: to the Assignment Agareament, be assigned by Mayor and Waterfront to First California and by first California to Pirst: Trust National Association, as Trusters for the Certificates of Participation. Consequently, the Parties agree that it is n0V necessary to cancel the Bond. The . parties desire to modify in the WA certain provisions affording to the Agency a right to credit or offset against amounts to be paid by it to the Developer &mounts oared by the Developer to the Agency, subject to certain limitlrtions. IA connection with the cancellation of the Bond, Mayer and Waterfront represent and warrant to the Agency 'that, since the data of insuanee• of the Bond, no person or entity has acquired any legal or equitable interest: in the Bond. The Parties agrees that, henceforth, all rights and obligations of the Parties with respect to the payment obligations of the Agency relating to paragraph 4 and paragraph 5 of Attachment No. 3 of the Existing DDA shall be as set forth in the Existing DDA, as amended by this Second ,,, r r' 04 c r + 4 rJ her. r' , M A., , : r r r t Amendment, and in the Assignment Agreement and Consent to Ae�si�t�eent. ,. A 0 R 2HSH �t 1 Eased on the foregoing Recitals, which the Parties hereby acknowledge to be true and correct and incorporate into this Agreeeement, and for good and valuable consideration, the receipt and sufficiency of which is aeckner.;ledged by a J Parties, the Parties hereby agree as follows: A.. The Parties acknowledge the►t the principal amount of all of the costs to be incurred by Waterfront and Dew'eloper with raspect to Phase 1 which costs Ageeney is obligated no pay and reimburse pursuant to Paragraph 9 of Attachuent No. 5 of the Lxisting DDA (the "Phase 1 Paragraph 5 Costs") have been incurred prior to the Effective Date of this Secone Amendment, and that the total of the Phase 1 Paragraph 5 t'osts equals the sum of Five Million Sim flun¢red 'Sixty Thousand Three Hundred Sixty-Eight Dollars ($5, 66G,368 .00) , plus accrued interest on said sum from and after September 30, 1990, until paid. The Parties further acknowledge that on Jung 31 , 1991, Agency paid Waterfront the amount of Two Hundred Thirty-Three Thousand Eight Hundred Vifty-Eight and 79/100 Dollars ($233,858. 79) to be applied toward accrued interest on the Phase l Paragraph 5 Costs. -4- a Z. The second line in Section 610 of the Existing DDA � shall be revised to read as follows: " 313 above and Paragraph 7 (C j - (e) of Attachment No. 5 (the 'Methcd of Financing' ) , but r notwithstanding any other provision of 2 3. The set:tence beginning an the 23rd line of the first paragraph in Paragraph S of Attachment No. S of the XXiating DIVA shall be rovisrd to read as follows: "The unpaid principal on said sum shall bear intere t at the rate of ten percent (100) per e►MUM0 compounded monthly, commencing, as to Phase 1, an October 1, 1990, and, as to Phases 3-•9, on the date the Developer advances, pays, or loans such costs, and continuing, as to all phases, until principal and interest are paid In full,. " 4 . A now paragraph (f) , entitled rft Offsets as to Sepayrato' avalopment Parcel No. 1 Daring Term of Assignment Agr4ement, " shall be added at the end of Paragraph 4 of Attachmant, No. 5 of the bxisting DDA, to read in its entirety as follows: ; "Agency shall riot suspaead, postpone, modify] or altar the payment of, nor claim any credits or Offsets (cull.ectively; "Offsets") against that portion of the indebtedness set north in this Paragraph + relating to separate Development parcel No, a for any reason whatsoever, including without J I l 1 • w limitation a default by Developer under the DDA or a default by waterfront Construction No. 1 (or its successsor(@) -in-interest) under the lease covering separate Development parcel No. 1, until the p' earlier oU (i) the ;RepurchRsa ante" rA*orencrd in Paragraph $ of that certain Assignment Agreement dated August 1, 1g4D1 (the "Assignment Agreement") , entered into by and between Developer, Waterfront Construction No. 1, a California limited partner- ship, and First California Capital Markets Group, Inc. , and the close of the "Repurchase Escrow" referenced in paragraph 9 of the Assigrapant Agreement, or (ii) the "Calculation Date" rotor- ; enced in Paragraph 8(c) of the Assignment ,Agroament it applicable) + attar which such offsets may be *lied to the eXteat permitted under Paragraph 7 of this Attachment No. 590 `►: 5. A new subparagraph (vi) shall be added at the and of paragraph 5 of Attachment No. 5 of the Existivg ODA to read in its entirety as follows$ 1, "Agency small not suspend, postpone, nnodify, or alter the payment of, nor claim any credits or offsets (collectively, "Offsets") against they indebtedness not Barth In this Paragraph 5 for any reason whatsoever,, including without limitation a default by Mayer under the CADA or a default by Waterfront under the Lease covering Separate -b- 1 � - ' ry, 4 q1 ► 1 I, f ti Development Parcel No. 1, until the earlier of (i) the "h+ourchase Date" reforenced in Paragraph 8 of that certain Assignment Agreement dated August 1, 4I 1901 (the "Assignment Agreement") , entered into by and between D*valoper, Waterfront Construction No. 1, a California ' initod. partnrership, and First California Capital Arkets Group, Inc. , and the i iiose of the "Repurchase Escrow" referenced in Paragraph 9 of than Assigment Agreement, or (ii) the "Calculation Date" referenced in Paragraph 8(c) of the Assignment Agreement (if applicable) , after which such Offsets may be applied to the extent permitted undaer Paragraph 7 of this Attachment No , 5. " 6. Paragraph 6 of Attachment No. 5 of the Existinq D1DA (at pages 15 -16) shall be deleted. Notwithstanding any other provision of the Existing DDA to the contirary, the Agoncy Mall have no obligation tc. compensate Mayer or Waterfront for lost rental income from tenants of the Driftwood Habilehme Park who vacate the premises prior to the applicable phase of development. 7. Paragraph 7 (a) of Attachment No. 5 of the Existing D17A shall be deleted. Paragraph 7(b) shall be rolettered as Paragraph 7 (a) . New paragraphs 7 (b) -(e) shall be added to read as follows " (b) Except as expressly seat forth in Paragraph 4 (f) and Paragraph 5 (vi of this -7- y. 1 . Attachment No. S. Agency shall have the right to 'r withhold, set off, deduct, or reduce any sums 1 otherwise diner to Developer pursuant to Paragraphs 4 and S with respect to any Separate Devalopment parcal within the Site to the extent reasonably ;y. required by AW*ncy to compensate itself for any r damages, Claims, losses, or liabilities Agency s sustains arising out of any breach of aeame by �- Developer (including any successor or assign of the original developer) pertaining to such Separate r; Development Parcel (but not any other Separate Development Parcel) , including but not limited to a 7 breach or default in • the payment of rent (or any amounts deemed rent) , taxes and assessments, utility charges, insurance, or costs of maintenance 1, of the leased prenises. (a) Notwithstanding any other provision of this Agreement to the contrary, the Agency'o obligation to contribute the funds referenced in a { paragraph 4 as to Separate Development parcel No. 1 l (phase•. 1) is conditioned and dependent upon the Developer's performance of its obligations to r timely proceed with construction of the second" hotel amd related improvements on Separate Develop- ment Parcel No. 7 (Phase 2) , and, if the Developer commits a material default with respect to the construction of the second hotel on Separate S r 1 F 1 I Milo I Development parcel too. 20 the Agency shall be entitled to withhold any of said funds Between the tine the Agency notifies the Developer of such default, in accordance with Section 601 of the Agrsoment, and the time the Developer curers said default or commences and diligently proceeds to cure said default. .After such default is cured, however, and assuming this ,Agreement has not been t:orminatod with respect to Separate Development Parcel No, 2, the Agency's obligation to contribute the funds referenced in paragraph 4 as to separate Development Parcel No. 1 shell be reinstated and " ah*21 survive and any amounts withhold shall be p�iid. After the Agency issues the Certificate of Completion for the second hotel and related improvements on Separate Development Parcel No. 2 I and said hotel opens for business to the general public, Agency's right to withhold any funds referenced in paragraph 4 as to separate Develop- =nt Parcel No. 1 shall terminate. (d) Notwithstanding any other provision of this Agreement to the contrary, the Agencyls obligation to contribute the funds referenced in paragraph 4 as to Separate Development Parcel No. 2 (Phase 2) is conditioned and dependent upon the developer's performance of its obligations to timely proceed with constLixetion of the third hotel -9- r l y . aim P•' sand related improvements on Separate Development rael No. 4 (Phase 4) . and, if the Developer commits a material default w'_rh respect to the , r; omstruction of the third hotel on Separate Devolopmarnt Parcel No. 4 i, the Agency sha 1 l be entitled to withhold any Cal said Rands between the time the Agency notifies ;.this Developer of such default, in accordance with Section 601 of the Agriemont, and the time the Developer cures said default or commences and diligently proceeds to cure said default. After such default is cured, however, and assuming this agreement has not been terminated with respect to Separate Development Israel No. 4, the Agency' s obligation- to contribute Is that fmMs referenced in paragraph 4 ais to Separate Development Parcel No. Z shall be reinstated and shall survive and any amounts withheld shall be paid.. After the Agency issues its Certificate of ' Completion for the third hotel and related improve- ments on Separate Development Parcel No. 4 and said hotel opens for business to the general public, AgencyFu right to withhold any funds referenced in paragraph 4 as to Separate Development Parcel No. 2 shall terminate. (a) Notwithstanding any other provision of this Agreement to the contrary, the Agency's obligation to contribute the funds referenced in r r yk r 1 / k 1 paragraph 4 an to Separate Development Parcel Not 4 4 (Phase 4) is conditioned and dependant upon the :.; Developeres performance of its obligations to tisely proceed with construction of the fourth r Rot`1 and related improvements on Separate Develop ma nt Parcel No. 6 (Phase 6) . and, if the Developer *omits a material default. with respect to the construction of the fourth hotel on Separate Development Parcel No. 6, the Agency shall be entitled to withhold any of said funds between the time the Agency notifies the Developer of such default, in accordance with Section 601 of the i Agreement, and the time the Developer our*& said default or comsnces and diligently proceeds to cure acid default. After such default is cured, howaver, and assuming this Agreement has not been terminated with respect to separate Development Parcel No. 6, the Age nays obligation to contribute the funds referenced in paragraph 4 as to Separate D►evelopmant Parcel No. 4 shall be reinstated and shall survivor and any amounts withhold shall be paid. After the Agency issues its certificate of Completion for the fourth hotel and related improvements on soparate Development parcel No. 6 and said hotel opens for business to the gt:neral public, Agency•s right to withhold any funds -11- K . ,.fir: • . 0. � V referenced in paragraph 4 as to Separate Develop- ment Parcel No. 4 shall terminate. „ a . Concurrently with and &a a condition to the close of escrow referenced in Pettagraph 4 of the Assignuent Agreement (i.a. , on th:a "Purchase Date") , Mayer and Waterfront shall be jrointly and severally responsible for payment to Agency vt the sum of Thirty Thousand Dollars ($30,000-00) to compensate Agency for all of its costs incurred in negotiating, preparing, and reviewing this Second .Amendment, the Assignment Agreement, the Consent to Assign- ment, thrA Investment Lettar, the Preliminary Limited offering Nemcrrtidum and Limitod Cfferinq Memorandum prepared with respect to First California t s remarketing of the rights to be 2asigned to it under the Assignment Agreemtent p and related d�u�elit�ts. 9 . The Parties agree that, from and after the date hereof, the Bond is cancelled and is henceforth null, void, atd of no effect. The Parties each agree to destroy or cancel any originally-executed instrument embodying the Bond in their possession. Any Party breaching such covenant (the "Indemnitar") further agrees to indemnify, defend, and hold harmless any other Party (the "Indemnit**") from and against any and all claims, liabilities, damages, and losses, includlnq litigation expenses and attorneyls fees, incurred by the Indemnitse arising out of such breach by the 1ndetmnitor. -12-• ', ,�,�, } -. y.t. ' may,/•�• , 1o. Moyer acknoviedges that Agency is exploring the possibility of issuing bonds (the "Agency Bonds") to finance certain of Agenayf s obligations under Attachment No. 3 (the "Scope of development") and Attachment Na. 5 (the "Method of Financing") to the Existing DDA (as amended by this Second Amendment) . Agency and Mayor are currently nngotiatirg with respect to a possible further amendment of the ODA which would provide, inter aalia,, for the issuance and sale of the Agency -Bonds at or about the time of the Disposition Transfer for Separate Development Parcel No. 2 (Phase 2) , which Agency Bonds would be secured in part by a first pledge of the remaining unpaid balance of the "Phase l Paragraph 4 Indebtedness" and the "Phase 1 Paragraph 5 Costs" which Mayer and Waterfront are assigning to First California under the Assignment Agreement. Agencro, makes no representation what- soever to Mayor or Waterfront regarding Agency•s willingness to enter into ' a further amendment to the DDA, regarding the terms of any such amendment, or regarding the issuance of the Agency Bonds. Agency has expressed concern, however, that by entering into this second Amendment and the Consent to Assignment, Agency could be prevented from issuing the Agency Bonds and performing certain of its obligations under the Existing DDA, as amended by this Second Amendment, if, for whatever, reason, Mayer or Waterfront fail or refuse to repurchase the then-remaining unpaid balance of the "Phase 1 Paragraph 4 Indebtedness" and the "Phase 3 Paragraph 5 costs" by the time cf the Disposition Transfer for Snpaxate -13� I,q Iti ti «_ ` L a ' ftvolopaent parcel No. 7 . Accordingly, to induce Agency to enter into this Second Amendment and the Consent to Assignment, Mayer and Waterfront hereby agree that, notwithstanding any other provision of the Existing WDA (as amended by this Second Amendment) to the contrary, Agency Mall not bee in default under tam 8xistinq DDA, as amended by this Second Amendment, and Mayer and Waterfront hereby raleisi Agency from the obligation to pay for and perform any of its obligations pertaining to separate Development parcels 2-9 which are referenced in Paragraph 1 of the Method of Fintacing (including without limitation its obligation with r�rspee>��: to the acquisition and relocation of the Driftwood Kobilohome park pursuant to the DDA and than Mobilehave Ao"ALsition and relocation Agreement dated as of Septem- ber 26, 1998) if, for whatever reason, Mayer or Waterfront (or its or their permitted assignee(sss) ) fail or refuse to repurchase the then-remaining balance of the "Phase 1 Pi ragraph 4 Indebtedness" and the "Phase 1 paragraph 5 Castor " as referenced in Paragraphs 8 and 9 of the Assignment Ag reesement, on or before the date for the Disposition Transfer of Separate Development Paiccol No. 2 . 11. Mayer and Waterfront hereby stipulate and agree that, its of the Effective Date of this second Amendment, the Agency i.3 not in defaul,;;. of any of its obligations with respect to Se:parnte Development Parcel No. 1 (Phase 1) under either the Zxisting DDA, as amended by this Second Ame3ndmant, or the Phass i Lease and no circumstances exist which, with •i�iw 1 Y.1 7, J P 14 WOW ok • the passage of time or the giving of notice, would result in such a default. Mayer And Waterfront Further agree that, concurrently with and as a condition to the close of escrow referenced its Paragraph 4 of the Assignment Agreement ( i. e. , on the "�ftirchase Date") , Mayer and Waterfront shall execute an estoppel certificate in favor of the Agency in a form r"aronably satisfactory to Agency's counsel making such stipulation and agreement as of the Purchase Date. 12 . pursuant to Paragraph 4 (e) of the assignment Agreement, waterfront is obligated to deposit into the escrow provided for therein two (2) trust deeds encumbering Mayer's leasehold interest in the Site (excluding Phase Z) , as more par�:icularly set forth in the Assignment Agreement. As further consideration to Agency for its approval and execution of thts Second Anandment and the Consent to hasignment, Mayer covenants that:, except for those mortgages and encumbrances contemplated in paragraph 4 (a) of the Assignment Agreement, Meyer shall not further mortgage or encumber its leasehold interest in tho Site (excluding Fhasi 1) prior to the earl•ler of the "Repurchase Date" referenced in paragrrapb 8 of the Assignment Agreement or the "Calculation mate" referenced in paragraph 8(c) of the Assignment Agree*msrst (if applicable) . 40 13 . Exdept as aeendcd herein, the EXtatinq DDT► *hall remain in effect in accordance with its terma. REDEVELOPHLNT AGENCY �y ' THE CITY O NTINGTON BEACH Sy. a rman �- ► now ---- INITZ ' ROVED AS TO co 1►genay special p11 y C yAfduihix to ' REVIMMO AND "PR(rrl:D APPROVEb: AS TO ToU s .' Y At o�•ney g*r� n re or/Ex�actx ! lkttorney - Director ROBERT L. LAYER, as Trustee of the X0BLRT L. MAYER TIWST at 1982 , dated June 22, 19820 an amended ROBIft L. KhY .... (aignstuxes continued on .next page) I . 1 t � .1 • WATERMONT CONSTRUCTION NO. 1, a California limited partner- ship lyi The waterfront* Inc. , a California corporation, General Partner sY� ; Mayor +: C? aitmarn or tha and and Chief Financial officer Byl Stephoh Ke Dons President 9/112/065560- 0001/144 i -17- � �Y R r • Olt L r THIRD AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT By and Among THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON REACH, ROBERT L. MAYER, as Trustee of the Robert L. Mayer Trust of 1982 , dated 3une 22, 1982, as amended, and WATERFRONT CONSTRUCTION NO. 1, a California limited partnership THIS THIRD AMENDMENT TO DI9POSITIOf1 ANb DEVELOPMENT AGREEMENT (the "Third Amendment") is entered into this J67�r day of March, 1992 (the "Effective Date") , by and among the REDEVELOPMENT AGENC)t OF THE CITY OF HUNTINGTON BEACH (the "Agency") , ROBERT L. MAYER, as Trustee of the Robert L. Mayer Trust of 1982 , dated June 22 , 19820 as amended ("Developer") , and WA'TEa"ONT CONSTRUCTION NO. 11 a California limited partnership ( "Waterfront") (collectively, the ieParties" ) . R E C I T A L 5 : A. On or about August 15, 1988, the Agency and Developer entered into a Dispoaition and Devolopment Agree- ment (the "original ODA") . S. On or about April 10, 1989 , Developer, Waterfront, and certain affiliated entities entered into an Aasi'gnment and Assumption ,Agreeme#nt pursuant to which Developer assigned to Waterfront and Waterfront a$sum.ed (through a sorLe s of asefgrwents to the affiliated entities) all of Developer's right, title, and interest in and to that portion of the 2/6., 92 4 n ral • rr 1 i i "Site" described in the Original DIVA as "Separate Development Parceel No. 1 . " C. On or about June 17, 1991, the Agency and Developer entered into a first Amendment to Disposition and Development Agreewwnt (the "First Amendment") . Waterfront has executed a . dol'ui'ernt consenting to the First Amendmini t. On or about August 1, 1991 , the Agency, Developer, and Waterfront entered into a Second Amendment to Disposition and Development Agreement (they "Second Amendment") . The Original DDA, the First Amendment, and the Second Amendment are collectively referred to herein as the "Existing ODA. " D. The Parties desire to amend the Existing DDA as not forth in this Third Amendment. AGREEMINT: Based on the fore; oing Recitals, which the parties liars- by acknowledge to be true and correct and ineorpnrete into this Third Amendment, and for good and valuable considera t ion, the ric:eeipt and sufficiency of which is acknowledged by all Parties, the Parties hereby agree as follows: 1. All defined terse in this Third Amendment shall have the same meaning as such terms have in the Existing DDA, except as may be expressly provided herein. 2. On or about January 31, 1992 , Developer, Water- front, Robert L. Mayer, individually, and First California Capital Markets Group, Inc. ( "First California") , entered w2- 11 't :1 into a Release of Rights under Second Amendment to Disposi- tion and Development Agreement, Assignment Agreement, and Consent to Assignment (the "Release") , a true and correct copy of which has been provided to Agency. The Parties hereto acknowledge that all right,* of First California under the Existing DDA and under the Assignment Agreement and the Consent to Assignment referred to Recital F of the Second Amendment have terminated, been reassigned to Developer and/or Waterfront, rs applicable, and are of no further force or effect, all as set foz _h in the Release. Developer and Waterfront --ovenant to Agency that they will timely and faithfully make the payments to First California that are required to be made in accordance with Paragraph 3 of the Release and will indemnify, defend, and hold harmless Agency with respect to any claim or cause of action against Agency in connection with such Release. 3 . On or before March 31 , 1992, Agency shall exercise best efforts to issue or cause the Huntington Beach 1Qblic Financing Authority (the "Authority") , m joint powers autho- rity in which Agency is a member, to issue and sell bonds (the "1992 Revenue Bonds") secured by Agency's pledge of property tax increment revenues . Insofar as the portion of the 1992 Revenue Bonds allocated to Developer and Waterfront is concerned, the 1992 Revenue Bonds shall be sized based upon Eighty Percent (801) of the property tax increment revenues allocated and paid to Agency from Separate Develop- ment parcel No. 1 (they Waterfront Hilton) and a thirty (30) -3- t;t n•• yr I f„ I , � hr r. WOW year amortization schedule. If the Agency or the Authority, as the cane may be, determines in its reasonable discretion to include in the 1992 Revenue Bonds a► refunding of the Authority's outstanding 1988 Revenue Sonde (Series A) +' ("Refunding issuer") , Agency will use its best efforts to insure that the portion of the net proceeds from the 1992 Revenue Bonds allocated and available for payment to Developer and Waterfront hereunder shall be in the sum of Four Million Three Hundred Thousand Dollars ($4 , 300 , 000) . If the Agency or the Authority, as the case may be, determines in its reasonable discretion to not refund the outstanding 1958 revenue Bonds (Series A) at this time, Agency or the Authorityt an the cans may be, will use its beat efforts to issue and sell the 1992 Revenue Bonds ass a "stand--alone" issue sized in this manner described in the second sentence of this Paragraph 3 ("Stand Alone Issue" ) in which event the net f proceeada of the Stand Alone Issue allocated and available for payment to Waterfront horounder shall be the actual net $„ prooerads not to exceed Four Million Three Hundred Thousand Dollars ($4, 300, 000 .00) but not less than Four Million Tvo Hundred Twenty-Five Thousand Dollars ($4 , 225, aao. 00) . Agency shall pay or cause Authority to pay To' Waterfront or order t! eintire not proceeds allocated to Waterfront heereunder at the closing in full payment of the amounts heretofore advanced ced by Developer pursuant 'to Paragraph s of Attachment No. 5 of the Existing DDA (thee "Phase 1 Paragraph 5 Costs") includinq accrued interest thereon. The Parties acknowledge P r• 0 114 'r y ' L''?�k.°,MNK• :�''Y err a,n. y that, pursuant to Paragraph 1 of the Second Amendment, the outstanding principal balance of the Phase 1 paragraph 5 costs and accrued interest as of March 31, 1992 (the projected outside closing date for the 1992 Revenue Bonds) , ' woulA be approxi.aately six Million TWO Hundred Seventy-Five Thousand Dollars ($d, 275,,000. Oa) . „ In the event that for any reason the Agency or the Authority, an the case may be, fails to issue and sell the 1992 Revenue Blends on or before April 30, 1992 , or is unable to achieve net proceeds to Developer and Waterfront of $4. 2 million in the case of the Refunding Issue or $4. 225 million in the case of the Stand Alone =abuse, any of the Parties *hall have the right to terminate this Third Amendment by delivery of written notice to the other P-41,Aesa and none of the parties shall have any rights or obligations with respwct to the others except as to Paragraphs 1, Z, 9, } and 10 hereof which shall survive such termination and remain r in full force and offset. 4. Agency shall pay , and reimburse to waterfront all accrued "property Tait Increment" and interest thereon that is owed to Waterfront under paragraph 9 of Attachment N6. 5 of i t1w , Rxisting ODA (based on 36-1/2% of the Property TA:: Increment from Separate Development Parcel No. 1) for the period comencinq on April 201 , 1989 (the date of the Disposi- tion Transfer for said parcel) through the :losing date of the . 1992 Revenue Bonds , less any portion of -,ueh amount previously paid. For purposes of this Paragraph 4, the term 1 i; 5- rj r. "Property Tax Increment" shall have the meaning ascribed in Paragraph 4 (b) (ii) of Attachment No. e3 of the Existing DDA; provided, however, that Property Tax Increment shall be calculated based only on property taxes and possessory Interest taxes actually paid pursuant to,the tax bills for 4' Separate Development Pat-.el No. 1 through the joint consoli- dated .secured tax bill for the 1991-•1992 fiscal. year (first installment delinquent after December 10, 1991 : $224 , 880. 18 ; second installment delinclaent after April 10, 1992 : $Z24 , 880 . 18) , including any portion of the delinquent penalties and interest paid pursuant t"; - touch tax bill that may be allocated and paid to Agency and included within Property Tax Increment, but not including any supplemental or other property tax bills applicable to separate Development Parcel No. 1 after the date of such tax bill . The date of Agency's payment of that portion of such accrued Property Tax Increment held by Agency and owing to Waterfront on the Effective date of this Third Amandment shall be made at the clooLnq of the 1992 Reventio bonds ,. The date of Agency's payment of that portion of such accrued Property Tax Increment attributable to tax payments made by Waterfront pursuant to the joint consolidated secured tax bill for the 1991--1992 fiscal year (first and second installments) shall be made vithin ten (10) days after Agency's receipt of same from the County of Orange. The portion of such Property Tax 1 lncr*Aent attributable to tax payments made by Waterfront pursuant to the second installment of taxes for the 1991.-1992 AW a I ' yF,iti `• k a ct 7.1 fiscal year shall be prorated by dividing the number of days i.rt the period covered by the second installment occurring on and before the closing date of the 1992 Revenue Bonds by 182 r' (t h* total number of days in the period covered by the second instaallaaent) . ' Thus, for wxample, it the 19192 Revenue bonds `^ were to clo" on March 31, 1992, Waterfront0a pro rata share .. of the non-dolinquent portion of Property Tax Increment attributable to the second installment of taxer for the 1991-1992 fiscal year would bd calculated as follows: 38-1/2% x �912 x $224 , 880 .18 $43 , 289 . 43 182 1 91 days' from January 1. 1992, through closing date of 1992 Revenue Bands �an March 31, 1992 2 152 days from January 1, 1992 , through June 30, 1992 Property Tax Increment attributable to tax patyaaents made by Waterfront pursuant to the joint consolidated secured tax bill for the 1991-1992 fiscal year (first, and second inataMll- ments) shall be deemed to have "accrued" prior to the closing date uii the 1992 Revenue bonds even if waterfront does not actually pay the first or second installment of such tatA.es until a later dater ,provided, however, that in no event shall ii this Third Amendment be interpreted to require Agency to pay accrued Property Tax Increment to Waterfront prior to Agency'a actual receipt of taxes upon--which Agency 0 s payment is based. In addition, Agency shall pay and reimburse to Waterfront all accrued "TOT" (as that term Is defined in r- s r, k.: II ' Paragraph 4 (b) (i) of Attachment No, 9 of the Existing DDA) and interest thereon that is owed to Waterfront under Paragraph 5 of Attachment No. 5 of the EXisting DDA from the Waterfront Milton located on Separate Development Parcel No. 1 (bases! on Sot of the St TOT rate in effect on the date Agency and developer entered into the Original DDA) fr3r the period comttencismi on thin date said hotel opened for business s (on or about July 17 , 1990) through December 31, 1991, lease any portion of such amount -previously paid. The date of such payments shall be in accordance with the Existinq DDA. TOT shall be deemed to have "accreted" on the date the hotel guest paysa., the same, regardless of the date 'payment is made by Waterfront to City; provident, however, that in no event shall this Third Amendment be interpreted to require Agency to pay accrued TOT to Waterfront prior to Waterfront le actual payment of the taxes upon which, Agency's TOT payment is based. 5. Agency shall Pay to Dai-Ychi Kangyo hank ("Bank") , an Waterfront's behalf, the sum of: (i) That portion of the accrued transiont occu- pancy taxes ("TOT") paid to the City of Huntington Beach or Agency with respect to the hotel on Setpar&te Development Parcel No. 1 epresented by the six percent (0) TOT rate in affect on the date Agency and Developer entered into the Original DDA for the period commancing on the date said hotel opened for r: ' 'A�I,_�^ ,F7dI�4 A I M''�•• . ` 1 1 1 r y' business (on or about July 171 1990) through December 31, 19920, less the sum of (A) the portion of such amount previously paid by Agency to Waterfront pursuant to Paragraph S of Attachment No. S of the Existing bW and (8) any additional portion of such amount y required to be paid by Agency to Waterfront pursuant to Paragraph 4 of this Third Mend- mast; with the understanding that TOT shall be deemed to have "accrued" on the date payment is made by such hotel quest to Waterfront, regardless of the date payment is made by Waterfront to City; provided, however, that in no agent shall this Tbi,rd Amendment be interpreted to require Agency to pay accrued TOT to Bank, on Waterf rout t s behalf, prior to City's or Agency's actual receipt of the taxes upon which Agency's TOT payment is baaned; and (ii) Thirty-eight and one-half percent (38-1/24) of the accrued Property Tax Increment with respect to separate Development Parcel No. 1 for than period commencing on April 28, 1989 (the date of the Disposition Transfer: for said parcel) , through the closing date of the 1992 Revenue Bonds, Stith the calculation of such amount- made in accordance with the first 11, 1 ryyy1 y i, t • t. 1.0 •'.?'tom _ `'V 1r , , 9F,r / . IMj{$4 eiil';•.Jti•�Ve ' YrRr .fW+., i ,`%j ,i�.. .. '9 • I I •I r\ I•,. 1 paragraph of Paragraph 4 of this Third Amend menu - (iii) Interest on the unpaid principal balance of the revenues referenced in suparagraphr (i) t and (ii) immediately above from the date such revenues are received by the City and/or Agency through the date of payment to Sank, on aev/eeloperfs behalf, at the rate of ton percent (10%) per annum, compounded southly. Notwithstanding the foregoing, it is understood that in no agent shall this Third Amendment be in''erpreetad to require Alleacy to pay Accrued TOT or property Tax Increment (or interadt ther#on) to Bank prior to Waterfront•a payment of the TOT taxes and/or possessory interest or , other property taxes upon which Agency-'s payment is based. Agency's first payment under this Paragraph 5 shall be made on April 16o 1992, or fifteen (15) dayd after they closing date on the 1992 Reeverue Bonds,, whi cheeveer occurs later. Thtr*after, payments shall continue to be made on ghee fittemnth (15th) day following the end of each ca'landar quar- ter through 'the calendar quarter ending December 31, 1992, or until all accrued amounts are paid au provided herein. each quarterly payment shall be calculated on the amount of TOT possessor y interest or other property taxes paid by � t p y Waterfront and received by city or Agency, as applicable , through the end of the preceding calendar quarter. 1 -10- 1 Y Y i of 11, 00 } 6. The sale of the 1992 Revenue Bonds and application of the net proceeds thereof as provided ir. :paragraph 3 and .Agency's payments in accordance with Paragraphs 4-5 herein shall be in lieu of and shall constitute a full and final settlement,, paysent, and di.schirg6' of all of Agency's pa}uent obligaticna, includinq interest thereon, under Paragraphs 4 and s of the Existing DDA with respect to Separate Develop sent Parcel No. 1 (the Waterfront Milton) , including without litnitati6n payment of the "Phase 1 Paragraph 5 Costs" refer- enced in Paragraph 1 of the Second Amendment. Without a further amendment of the Existing DDA and this Third Amendment, Agency `hall have no obligation to pay to or for the benefit of Developer or Waterfront any TOT with respect to !Separate Devalopmsent � T trcel No. 1 accruing on or after J'anuary 1, 1993 . 7 . Waterfrant covenants that concurrently with distri- bution of the net proceeds of the 1992 Re venuie Bands . in accordance with Paragraph a of this Third Amendment, Water- front shall cause an amount equal to such net proceeds to be paid to Bank (or otherwise in a manner acceptable to Agencyfs Executive Director and the City Attorney) for the following limited purposes: Ei) Settlement of litigation and claims arising � crust of construction of the Waterfront Hilton, including the following: Waterfront Construc- tion #1 v. J. A. Jones Construction CompanyL et al. and related cross-action, Orange County Xil. 0, Lit .AL'. �ae, '��,� • ♦ ,,11 y•1 1 '► Superior couft rt Case No . 6576821 r 6 a i�i.ree a, protection Compary, Inc. v. J Orion Con- struction Company.s- eta, • Orange Clo'anty r gup•riear, �:aurt Cage No. 674606s E, 111.�lkp CoiMDAr► 1l1C. V. J.A`. Jone z Constructi6n cbmariy: at al . , orange county Superior court A .. Cage No. 647630 , and, SA„A CO Eleectrig a jor' �ti� Cdr►structiian :- Company, . etal . ,. • orange county Superior CovArt 'Case No. 654338 ; and (ii) deposit of thee' balance of the nest -p•roceeeds 'tit the 1992 `'Reve nne 'Bonds with Bank for interest reset-tire parposeeu under tha Credit hgreeement , dated as. ,of March 31, 19e9 F botween W iterfrciit and Bank, as the seise may have been. amended or may hereafter be amended from time to. timee . 8 . In addition tt� the teermina�Sian' provisionse set forth , 'In Paragraph 3, ;hereof, Agency may teermi iw'tte this Thlyd Anend- ment ' upon written notice: to Developer and Vaturfront if, prior to the closing of �ths 1992 Revenue Bonds, and in no event" luteer then April '.eo, 19920 the following conditions are not 'stisti.ed (ter waived by Agency in its solve and absolute discretion) (i) ' Waterfront deeliv' e>ers -to the city Attarn�ty of a �ully executed modification to the afore - c1lescribeai Credit Ar: reesmeent k�etweaen Waterfront and Bank fend/or related documents Which pro- vide for sxtesision of tfiob, maturity dates on