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Home My WebLink AboutDEPARTMENT OF TRANSPORTATION (CALTRANS) - 2001-02-20�i � A'8LE �I7F= C0N' IENT;S Key documents relating to the funding, construction and maintenance of a Pedestrian Overcrossing of Pacific Coa 3t Highway in Conjunction with the Hyatt Regency Hotel Development 1 — License Agreement to Provide Landscaping and Other Improvements In the public Right of Way Parties: City of Huntington Beach, The Waterfront Hotel, LLC, and Mayer Financial, LP Date: Februa 20 2001 2 — Agreement Involving the Installation of a Pedestrian Overcrossing Parties: City of Huntington Beach, Orange County Sanitation District, and Mayer Financial LP Date: February 20, 2001 3 — Assignment and Assumption Agreement and Consent to Assignment i Parties: Mayer Financial, I.P. PCH Beach Resort, LLC. City of Huntington Beach, Redevelopment Agency of City i of Huntington Beach, and Orange County Sanitation District Date: April 3, 2001 a —Cooperative Agreement No.12-373 Design and Project Development Parties: State of California and City of Huntington Beach Date: July 5, 2000 5 —Cooperative Agreement No.12.375 Construction and Funding Parties: State of California and City of Huntington Beach Date: April 30, 2001 6 — Cooperative Agreement for Maintenance of Pedestrian Overcrossing Parties: State of California, and City of Huntington Beach Date: November 18, 2002 7 — Easement Deeds to State of California for Pedestrian Overcrossing Parties: City of Huntington Beach to State of California Date: November 25, 2002 S — Joint Community Facilities Agreement, Grand Coast Resort, CFD No. 2000.1 Parties: State of California, City of Huntington 8 Beach, Community Facilities District No. 2000-1. and PCH Beach Resort, LLC Dateecember 1 2001 G 10 0 FIRST AMERICAN TITLE INSURr,..�%"Comp,Ati" This Document - � electronically recorded by R.. _ .1merican Title RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY OF HUNTINGTON BEACH P.O. Box 190 2000 Main Street Huntington Beach, CA 92648 Attn: City Clerk Recorded In Official Records,County of Orange Gary L Granville, Clerk -Recorder q�lll�lll��I�nmIl��ll�lll�laill 74.00 20010232765 01:05pm 04/18/01 11848A1235 0.00 0.00 0.00 0.00 68.00 0.00 0.00 0.00 FOR RECORDER'S USE ONLY LICENSE AGREEMENT TO PROVIDE LANDSCAPING AND OTHER 1WROVEMENTS IN THE PUBLIC RIGHT-OF-WAY (1 This LICENSE AGREEMENT TO PROVIDE LANDSCAPING AND OTHER PUBLIC �*J IMPROVEMENTS IN THE PUBLIC RIGHT-OF-WAY ("Agreement") is made and entered into on this 20th day of February 12001, by and among THE CITY OF HUNTINGTON `.V BEACH, a municipal corporation of the State of California ("City'), THE WATERFRONT HOTEL, LLC, a California limited liability company C WH'D, and MAYER FINANCIAL, L.P., a California limited partnership ('W" ). -WH and -YE are -sometimes refeired-to-herein-individuaIly as a "Licensee" and collectively as the "Licensees." City, WH, and MF are sometimes collectively 6\ referred to herein as the "Parties." REMIALS: A. WH is the ground lessee of that certain real property located in the City of Huntington Beach, County of Orange, State of California, and legally described in the attached Exhibit "A" (the "Waterfront Hilton Parcel") and the attached Exhibit "B" ("Parcel C'D. B. MF is the ground lessee of that certain real property located in the City of Huntington Beach, County of Orange, State of California, and legally described in the attached Exhibit "C" (the "Grand Coast Resort Parcel"). C. In connection with the development of the Waterfront Hilton Parcel, Waterfront Construction No. 1, a California limited partnership ("WC"), WH's predecessor -in -interest as the ground lessee of the Waterfront Hilton'Parcel, was required by City to provide certain landscaping and other improvements in the public rights -of -way adjacent to the Waterfront Hilton Parcel in accordance with plans and specifications submitted by WC and approved by City, such areas being depicted in the attached Exhibit "D',' and 'referred to herein as the "Waterfront Hilton Parcel Improvement Area," and WC and City' entered into that certain "License Agreement By and Between the City of Huntington Beach and Waterfront Construction No. 1 to Provide Landscaping and Other Improvements in the Public Right -of -Way," ' dated August 30, 1995, and recorded on September 12, ii C' 1995, as Instrument No.19950395515lin the!Official Records of the County of Orange, California K:1CG\HBCRA%W aterfmnt1LLA1-19-01 January 19.2001 k - (the "Prior License Agreement', which Prior License Agreement sets forth certain obligations of WC to maintain and repair said landscaping and other knprovements. By this Agreement and in accordance with the terms set forth herein, WH desires to assume all of WC's obligations with respect to maintenance and repair of the improvements in the Waterfront Hilton Parcel Improvement Area, including, without limitation, all of WC's obligations under the Prior License Agreement, and WI I and City desire to terminate the Prior License Agreement from and after the effective date of this Agreement. D. In connection Aith the development of the Grand Coast Resort Parcel, MF was required by City to provide certain Iandscaping and other improvements in the public rights -of -way adjacent to the Grand Coast Resort Parcel and Parcel C in accordance with plans and specifications submitted by MF and approved by City. Said public'rights-of-way adjacent to the Grand Coast Resort Parcel are depicted in the attached Exhibit "F" and are referred to herein as the "Grand Coast Resort Improvement Area" and said public rights -of -way adjacent to Parcel C are depicted in the attached Exhibit "E" and are referred to herein as the "Parcel C Improvement Area." E. In connection with the development of the Grand Coast Resort Parcel, NIF was further permitted by City to construct a pedestrian overcrossing spanning Pacific Coast Highway between the Grand Coast Resort Parcel and the City beach parking lot as depicted in the attached Exhibit "G" and referred to herein as the "Overerossing Improvement Area," in accordance with plans and specifications submitted by MF and approved by City and by the California Department of Tra.7sportation ("CalTrans') through issuance of encroachment permits, a Cooperative_Agreement for design and project development (District Agreement No. 12-373), a Cooperative Agreement for the construction' phase of the project (District Agreement ISTo. 12-375), and .a Maintenance Agreement (to be entered into after the date hereof), referred to collectively herein as the "CalTrans Approvals." F. By this Agreement and in accordance with the terms and conditions set forth herein, MF, as ground lessee of the Grand Coast Resort Parcel, is willing to assume the responsibility for the installation, maintenance, repair, demolition, removal and/or replacement of certain improvements located in the Grand Coast Resort Improvement Area and for all improvements within the Overcrossing Improvement Area, subject to and in accordance with the terms of this Agreement, and VVH, as ground lessee of Parcel C, is willing to assume the responsibility for landscaping and maintenance of the Parcel C Improvement Area, in addition to assuming WC's obligations as set forth above, subject to and in accordance with the terms of this Agreement. Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by City, WH, and MF, the Parties hereto agree as follows: 1. Crant of License to WH. City hereby grants to WH and Nk'H hereby accepts from City a non-exclusive, revocable license to utilize the Waterfront Hilton Parcel Improvement Area for the installation, maintenance, repair, and replacement of those landscaping and other improvements within the Waterfront Hilton Parcel Improvement Area that are specifically listed in ...•� Paragraph 4 of this Agreement. City further hereby grants to NVH and WH hereby accepts from City KACG1HSCRA1,lvate&wtU Al-1M1 Jarwaq 19.2001 —2- a non-exclusive revocable license to utilize the Parcel C Improvement Area for the installation, maintenance, repair, and replacement of those landscaping and other improvements within the Parcel C Improvement Area that are specifically listed in Paragraph 4 of this Agreement. Other than the licenses granted hereunder, and except as provided in Paragraph 3 of this Agreement, WH hereby expressly waives any claim to or interest or estate of any kind or extent whatsoever in the Waterfront Hilton Parcel Improvement Area or in the Parcel C Improvement Area, whether now existing or arising at any future time. 2. Grant of McenSC Jn W. City hereby grants to ME and NIF hereby accepts from City a non-exclusive, revocable license to utilize the Grand Coast Resort Improvement Area for the installation, maintenance, repair, and replacement of those landscaping and other improvements within the Grand Coast Resort Improvement Area that are specifically listed in Paragraph 4 of this Agreement. City further hereby grants to W and NT hereby accepts from City a non-exclusive, revocable license to utilize the Overcrossing Improvement Area for the installation, maintenance, repair, and replacement of those overcrossing and other improvements that are specifically listed in Paragraph 5 of this Agreement (the "Overcrossing Improvements" as defined in said Paragraph). City further hereby grants to MF and MF hereby accepts-fram City anon -exclusive, temporary, revocable license to enter onto and use the City beach parking lot adjacent to the Overcrossing Improvement Area as and when reasonably needed by NUF and in cooperation with City for the purpose of constructing, maintaining, repairing, and replacing the Overcrossing Improvements (the "Temporary License', provided, however, that NIF shall give City not less than twenty four (24) hours notice prior to any exercise of the Temporary License which may result in use of the City beach parking lot for a period in excess of four (4) consecutive hours. Other than the licenses granted hereunder,' and except as provided in Paragraph 3 of this Agreement, W hereby expressly �.,✓ waives any claim to or interest or estate of any kind or extent whatsoever in the Grand Coast Resort Improvement Area or in the Overcrossing Improvement Ar:a, whether now existing or arising at any future time. (The Waterfront Hilton Parcel Improvement Area, Parcel C Improvement Area, Grand Coast Resort Improvement Area, and Overcrossing Improvement Area are individually referred to herein as an "Improvement Area" and collectively as the "Improvement Areas.' 3. cc . The licenses granted by Paragraphs 1 and 2 of this Agreement, and the exercise of any permission given herein, shall not be deemed to vest any Licensee with any interest, whether temporary, permanen', irrevocable, possessory or otherwise, except as specifically set forth in this Agreement in the applicable Improvement Area, and no Licensee shall make any claim to any such interest. In the event of condemnation of any portion of any Improvement Area or any improvement thereon, all compensation paid therefor shall be solely the property of City and neither Licensee shall be entitled to any part thereof. Any violation of this provision shall immediately void and terminate this Agreement. Notwithstanding the foregoing, no provision of this Agreement, including without limitation the waiver of any right in any Improvement Area by WH or NT pursuant to Paragraphs I and 2, shall be deemed to affect in any manner any property right or right of access to, across, under, or through any Improvement Area which may otherwise exist in WH or NT. 4. T Prdan ImprovementS. WH (as the ground lessee of the Waterfront Hilton Parcel and of Parcel C) shall install, maintain, repair and replace the following specifically described improvements (the "Landscape Improvements') within tre Waterfront Hilton Parcel Improvement K-\CG, .BCRA\lValeftntrLCA1-19-01 1a-luary 19. =1 "3" Area and the Parcel C Improvement Area at no cost to City. M F (as the ground lessee of the Grand Coast Resort Parcel) shall install, maintain, repair and replace the Landscape Improvements within the Grand Coast Resort Improvement Area at no cost to City. The Landscape Improvements are as follows: (a) Landscaping. Plant materials and irrigation systems; (b) Enhanced Hardscane. Sidewalks, curbs, gutters, and street paving installed within the applicable Improvement Area which do not conform to the standard specifications of City for such improvements; (c) Fumini . Fountains, sculptures, benches, and other street furniture (but not bus shelters and appurtenant structures installed for the use of the Orange County Transportation Authority), including any signage or advertisements on or in connection with any of the foregoing; (d) Spccial U-bring. Lighting fixtures; other than street lights constructed in accordance with the standard specifications of City for such improvements; (e) S.i=ag . Directional signs and street signs which do not conform to the standard specifications of City for such improvements including without limitation any signage which Licensee has a right to erect within the Improvement Area; and (f) Enhancements to Standard Facilities. Enhancements to public facilities ....� otherwise substantially constructed to the standards maintained by City for such i..^zprovements (e.g., custom paint applied to traffic signal poles and fire hydrants); provided - tl:at the applicable Licensee shall only be responsible for the enhancements and shall in no way be responsible for the maintenance of the facility itself. (a) Except as expressly set forth in the :ollowing sentence, W (as the ground lessee of the Grand Coast Resort Parcel) shall install, maintain, repair and replace all facilities necessary to effectuate the pedestrian overcrossing within th! Overcrossing Improvement Area (the "0vercrossing Improvements'), including but not limited to the elevator, lights, stairways, connecting walkways, and bridge at no cost to City. City shall be responsible for water for landscaping on the beach side of Pacific Coast Highway, i in connection therewith, shall install the facilities necessary to provide electricity for the Overcrossing Improvements at no cost to INiF. MF shall install and maintain a sub -meter to measure electricity usage for the Overcrossing7 Improvements at no cost to City and shall reimburse City the actual cost of such electricity. (b) Prior to adoption of this Agreement, City granted to the Orange County Sanitation District ("OCSD"} an easement entitled Grant of Easement between the City of Huntington Beach, California, grantor, and County Sanitation District No. 11, of Orange County California, a public corporation, grantee, dated October 27,1981, and recorded on November 12, 1981, in the Official Records of Orange County, California, in Book 14228, Page 14'K for specified K%W,F SC+RA%WateftnrLLA 1.19-01 January 19. 21M i -4- purposes (the "Easement 0=0 across a portion of the Overcrossing improvement Area (the "Easement Area'), and OCSD has constructed within the Easement Area sanitary sewer transmission } pipeline improvements. Prior to undertaking any construction in connection with the Oveicrossing v Improvements, MF shall incorporate any design requirements that OCSD may reasonably require pursuant to the OCSD Agreement (as defined below) to protect OCSD's existing pipeline i,-nprovernents and to ensure OCSD access to inspect, maintain, and repair its pipeline improvements, including but not limited to the installation of permanent shoring around such pipeline improvements, all at no cost to City. In addition, MF agrees to perform and assume at its sole cost and expense any and all of its and City's liabilities, obligations and responsibilities to OCSD and/or others which arise out of or are related to the agreement entered into by City, OCSD, and W entitled "Agreement Involving the Installation of a Pedestrian Overcrossing" (herein, the "OCSD Agreement'). To assure that OCSD's pipeline improvements are not damaged by NT's construction of or work on the Overcrossing improvements, MU shall choose a responsible bidder who is qualified to work adjacent to sanitary sewer transmission pipeline improvements and shall provide a supervisor who shall be present at all times during any construction of or work under the control of NIF on the Overcrossing Improvements. MF furd further understands and agrees that except as may otherwise' be provide_in d the OCSD Agreement, OCSD may exercise certain rights under the Easement Grant which may affect the exercise of NE's.rights or obligations under this Agreement, including, but not limited to, the possibility that MF may be required, at its sole cost and expense, to remove and replace a portion of the Overcrossing Improvements if necessary for OCSD to effect its rights in the Easement Area. W-5 (c) NT acknowledges that CalTrans will require some or all of the work on or related to the Overcrossing Improvements to be performed in accordance with the requirements of and to the standards established in the CalTrans Approvals and that CalTrans will owm those parts S of the Overcrossing Improvements Iocated within the State right-of-way. City shall undertake - reasonable efforts to cooperate with l,T and to provide Nff with an opportunity to comment upon and provide recommendations to City and CalTrans as to the form and content of said CalTrans Approvals, provided, however, that NfF understands and agrees that the final form and content of said CalTrans Approvals shall be as approved by CalTrans and City. MF agrees to perform and assume at no cost to City any and all of City's liabilities, obligations and responsibilities to CalTrans and/or others which arise out of or are related to said CalTrans Approvals, including without limitation paying or reimbursing CalTrans for costs incurred by CalTrans with respect to the Overcrossing Improvements which are City's responsibility under the CalTrans Approvals. b. Cnordinatinn of Ohlia tions. Except to the extent that CalTrans reserves to itself the responsibility for structural maintenance and repair of the Overcrossing improvements pursuant to the CalTrans Approvals, each Licensee shall, at no cost to City, be responsible for the installation, maintenance, repair, demolition, removal and/or replacement, as necessary, of the specifically listed Improvements (whether Landscape Improvements or Overcrossing Improvements) within its applicable Improvement Area only and the Licensees shall not be jointly or severally responsible for maintenance or repair of any or all of such Improvements. The Licensees may contract with one another from time to time for the mutual performance of any of the Licensees' obligations set forth in this Agreement or for the performance by one Licensee of another Licensee's obligations; provided, however, that in no event shall the existence of or performance under any such contract K:1Ca�HSCRA►W a!erfronN.L.A1-19-01 January 19. 2001 -$' it. decrease, alter, or amend any individual Licensee's obligations to City under this Agreement or as otherwise established. 7. ' Fffec-t on Other, Obligations. The parties declare that it is the intent of this Agreement to effectuate the obligations ofLicensees to install, maintain, repair, demolish, remove and/or replace improvements within the Improvement Areas which obligations are established by agreements, entitlements, and permits otherwise existing on the date of this Agreement or anticipated by this Agreement to be specifically so established, including, but rot limited to, obligations created by the Amended and Restated Disposition and Development Agreement by and between the Redevelopment Agency of the City of Huntington Beach ("Redevelopment Agency') and Mayer Financial, L.P., dated September 14, 1998, as amended, that certain Subdivision Agreement by and between City and Mayer Financial, L.P., for Tract No. I5535 dated August 2, 1999, and the CalTrans Approvals. Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall be deemed either (i) to waive any obligation, responsibility or requirement of a Licensee to install, maintain, repair, demolish, remove or replace any street improvement, utility, traffic signal, curb, gutter, asphalt paving, light standard, sidewalk, signage, landscaping, handscape or other improvcment which obligation is otherwise- imposed upon "such Licensee by law, -as a condition of any approval or permit issued by City, through any contractual agreement, or by any other means; or (ii) to create any new or different obligation on the part of any Licensee as to any improvement or any Improvement Area which is neither so established nor specifically set forth in this Agreement. 8. Maintenance Standards. During the terns hereof, each Licensee agrees, at that Licensee's sole cost and expense, to maintain the Improvements (whether Landscape Improvements or Overcrossing Improvements) for which it is responsible widllliri its applicable Improvement Area t in a good and satisfactory condition and in accordance wi:h the following standards (and, with respect to the Overcrossing Irrp;ovements, subject to the CalTrans Approvals): (a) Maintenance of La sc ,12ina. Each Licensee's responsibility for maintenance of landscaping shall include, but shall not be limited to, watering, repairing and/or adjusting irrigation systems when failures occur, fertilizing, -ultivating, edging, performing general planting and trimming or other corrective gardening, spraying grass and plants with both insecticides and herbicides, and generally keeping the landscaped area in a clean, safe, and attractive condition, taking into consideration normal growth of the landscaping materials and a continuation of the aesthetic quality of the applicable improvement Area. The growth of all plant materials in the applicable Improvement Area shall be controlled so as not to allow growth across or onto any bicycle path, pedestrian walkway, or paved street from the interior edge of the sidewalk or the edge of the curbieurer in the median to the center of the street, and the irrigation systems shall be operated and maintained in a manner so as to eliminate irrigation spray into such areas. The Improvement Areas shall be maintained in a manner so as to be free from weeds, debris, and harmful insects at all times. All gardening and maintenance practices performed in the Improvement Areas shall conform to the best maintenance practices and to such Arboricultural and Landscape Standards Specifications as may be issued from time to time by City's Department of Public Works. Each Licensee shall replace any Landscape Improvement which is destroyed, stolen, or vandalized within K%eeraeaalWaterfmnnLLA1-19-01 January 19.2001 -6- one (1) week of such destruction, provided, however, that at the request of a Licensee, City may in its sole discretion provide a longer period of time for such replacement. +•� (b) Maintrnance of Overcrossing Impmvements. Trash containers shall be provided on the Overcrossing Improvements in the number and at the locations established by City. These shall be emptied at least twice daily, or at such other frequency as is required by City. The Overcrossing Improvements shall be steam cleared as needed, and any painted surfaces shall be repainted at Ieast once each five (5) years. MF shall at all times maintain a service contract with a firm which is experienced in and capable of performing any and all work required to keep the elevator in good repair and shall provide City with the name, address, and phone number of such fine. Security personnel shall be provided to monitor the Overcrossing Improvements in accord with a security plan to be prepared by MF a --id approved in writing by City prior to issuance of a certificate of occupancy. The pedestrian overcrossing shall be closed to all persons (other than maintenance personnel) between the hours of midnight and 5:00 a.m. of every day unless the prior written consent of the - Community Services Director of City to keep the overcrossing open during alternative hours is obtained. Raised planters, if any, ' located between ,the ,beach, and the Overcrossing • - - - • • - - - Improvements within the promenade area may be planted with perennials and shall be maintained by W in accord with the standards established for Landscape Improvements in Subsection (a) of this Paragraph 8. The Parties anticipate that CalTrans will, on a regular basis (but not exceeding once every two (2) years), conduct a structurallintegrity/seismic inspection of the Overcressing improvements and prepare a report thereof which will be filed with City. As to any items of work that are City's =d/or N11's responsibility as set forth in &.e CalTrans Approvals, MF shalI promptly implemen^,t any directions from CalTrans and/or City arising out of the recommendation(s) in such report, including without limitation demolition provided, however, that (i) unless City determines that immediate demolition of - the Overcrossing Improvements is required to assure the public health and safety, City shall first cooperate in good faith with N F to pearl: NIF to redesign, alter or modify the Overcrossing Improvements rather than to demolish them if such redesign, alteration or modification may address the issues identified in the report, and (ii) in the event CalTrans recommends or directs that the Overcrossing Improvements be demolished and removed and MF determmes to dispute such recommendation or direction, City shall undertake reasonable efforts to support MF to obtain approval of the continued maintenance and operation of the Overcrossing Improvements, provided that City mites no warranty or representation that its support will alter CalTrans' final decision. As to any items of work that are City's and/or W's responsibility as set forth in the CaITrans Approvals, MF shall repair and/or replace any Overcrossing Improvement which is destroyed, stolen, or vandalized within such time as is commercially reasonable for such item to be replaced. MF understands and agrees that if the CalTrans Approvals establish any maintenance, repair or replacement requirement or standard for the Overcrossing Improvements or any part thereof which is more restrictive than the requirement or standard established by this Agreement, it shall comply with all of such more restrictive requirements or standards La the performance of such work on such Improvements. (c) Nuk?_nce. Each Licensee agrees to maintain and keep its Improvement Area(s) in good conditien and repair, free and clezr of litter and debris and free from any K_%C7,-iSCRAI,'Water4w M A1.14-01 Jarn.ary 10. 21001 -7- objectionable noises, odors, or nuisances, and to comply with all applicable health and police regulations, in all respects at all times. (d) Disposal of T ;Uer, Each Licensee shall dispose of all litter and debris only in receptacles designated by City or through other methods pre -approved in writing by City's Department of Public Works. (e) Militia. Each Licensee shall pay all utility costs associated with operating the irrigation systems (i.e., water and electrical) which it is obligated to maintain within its applicable Improvement Area and each Licensee shall be solely responsible for using such utilities in a saf;, and hazard -free manner, complying in all respects with applicable codes and ordinances. (f) Compliance with Notice_ At its sole cost and expense, each Licensee shall promptly comply with any written notice served by City %ith regard to maintenance or repair of its Improvement Area. Should any Licensee fail to comply with any written notice within the time provided in such notice for the work to be done, -City may -cause the work to be ------------- performed and such Licensee shall be responsible to reimburse City for any and all costs . incurred by City, including without limitation all costs of administration incurred by City in connection with such work. Payment therefor shall be due City within ten (10) days of billing. 9. fiat:dal Alterations. No Licensee shall make any material change in the placement or type of plant material or other improvements utilized within its applicable Improvement Area, nor shall the design of any Improvement Area be materially altered without the prior written consent of �•• City; provided, however, that a Licensee may modify or replace on a regular basis the seasonal or annual flowering plants within the improvement Area for which it is responsible as said Licensee deems appropriate provided that no planted area shall be left bare. 10. Darnaae to ImpmyementAre,-. In the event that, in the course of performing work pursuant to this Agreement, a Licensee or any of its contractors, subcontractors, employees, or agents causes any damage to any improvement, including without limitation any Landscape Enprovement or Overcrossing Improvement, within an Improvement Area, whether or not said Licensee is otherwise required to maintain or repair said improvement, said Licensee shall promptly repair the damage or restore the improvement to the cond'ticn existing immediately prior to the time thzt the damage was caused, and any such repair or restoration shall be at said Licensee's sole cost and expense. 11. Term. This Agreement shall terminate as to the Licensees and the Improvements Areas on the following dates: (a) Subject to Subsections (d) and (e) of this Paragraph 11, this Agreement shall ter.ni,^ate as to WC (or its successor(s)-in-interest as authorized by Paragraph 15) and the Waterfront Hilton Parcel Improvement Area on the date WC's or its successor's leasehold interest in the Waterfront Hilton Parcel expires or terminates pursuant to the applicable ground lease, as the same may be amended, modified, or extended from time to tim:. K.1c�k!BCRA;W aterlr�n"!.[.At.t9a 1 Janvary 12. 2001 "8" (b) Subject to Subsections (d) and (e) of this Paragraph 11, this Agreement shall terminate as to WC (or its successors) -in -interest as authorized by Paragraph 15) and the Parcel C Improvement Area on the date WC's or its successor's leasehold interest in Parcel C expires or terminates pursuant to the applicable ground lease, as the same may be amended, modifled, or extended from time to time. '- (c) Subject to Subsections (d) and (e) of this Paragraph 11, this Agreement shall terminate as to W (or its successor(s)-in-interest as authorized by Paragraph 15) and the Grand Coast Resort Parcel Improvement Area and the Overcrossing Improvement Area on the date W's or its successor's leasehold interest in the Grand Coast Resort Parcel expires or terminates pursuant to the applicable ground lease, as the same may be amended, modified, -or extended from time to time. (d) In addition to the termination provisions set forth in the other Subsections of this Paragraph 11, City may terminate this Agreement as to any Licensee with respect to any Improvement Area as to which said Licensee is in default if said Licensee commits a default of_its obligations hereunder with respect to said Improvement Area and fails to cure said default within thirty (30) days after receipt of a written notice of default from City specifying the nature of the default and the action required to be taken by said License to cure the default, or, with respect to any default that cannot be cured with reasonable diligence within said thirty (30) day period, said Licensee fails to commence said cure within thirty (30) days after receipt of said notice or fails thereafter to diligently prosecute said cure to completion; and (e) in addition to the termination provisions set forth in the other Subsections of w,✓ this Paragraph 11, City may terminate this Agreement as to any Licensee with respect to any Improvement Area if (i) circumstances beyond the control and without the fault of City and said - Licensee render the continued use and maintenance of the L-nprovements provided for in Paragraphs 4 and 5 of this Agreement as to such Improvement Area a significant hazard to the public health or safety in City's sole and reasonable discretion, provided, however, that unless City determines that immediate demolition of an Improvement is required to assure the public health and safety, City shall cooperate in good faith with said Licensee to redesign, alter or modify an Improvement identified by City as hazardous so as to eliminate the public safety problem or mitigate it to an insignificant level and to avoid termination of this Agreement if reasonably practicable, or (ii) CalTrans properly demands that the Improvements be demolished and removed pursuant to the CalTrans Approvals; or (iii) with respect to the portion of the Improvements located within the Overcrossing Improvement Area, OCSD properly demands that said.Ir.�provements be demolished and removed pursuant to the OCSD Agreement; or (iv) any third party with jurisdiction over such Improvement Area or over the Improvements contained therein lawfully directs City to terminate this Agreement as to such Improvement Area or such Improvements. (a) Upon the termination of this Ag~eernent as to any Licensee and any Improvement Area pursuant to any provision of this Agreement, the affected Licensee agrees to quit and surrender said Improvement Area with all improvemeas thereon, including, without limitation, all Landscape Improvements andlar Overcrossing Improvements, subject to said Licensee's retenticn K.tiCGJ,8CRA Waur'rvnntt,41-19�l1 January 19. =1 19- of whatever property rights and interest it may have in said Improvement Area independent of this Agreement. (b) Notwithstanding the provisions of Subsection (a) of this Paragraph 12, upon the request of City made in City's sole discretion, upon termination of this Agreement as to any Licensee and any Improvement Area pursuant to Paragraph 3 or Subsection (d) or (e) of Paragraph 11 of this Agreement, the Licensee shall, within a reasonable time therefor established by the City's request, remove any or all of the Improvements (whether Landscape Improvements or Overcrossing Improvements) in the Improvement Area as to which the license has been terminated and restore that Improvement Area as nearly as possible to the condition that it was in prior to the time of the orig*:nal installation of said Improvements and such Licensee shall fiuther, upon the request of City, disconnect the water and electrical supply source from the adjacent parcel leased by such License-. and construct and reconnect a new water and electrical supply source to the applicable Improvement Area irrig3dcn system from adjacent facilities in the public right-of-way to the satisfaction of City. All costs of such removal, restoration, and disconnection and reconnection of water and electrical supplies shall be at the sole cost and expense of such License-., and each Licensee agrees that City shall have the right to compel specific performance or.obtain other equitable relief to enforce such - Licensee's obligations under this Agreement. The provisions of this Subsection (b) shall survive termination of this Agreement. Notwithstanding the foregoing, no Licensee shall be required to remove any Improvement(s) if said removal would co=imte a violation of any applicable Ia v, statute, order or regulation of any federal, state, or local gcvemmental entity with jurisdiction or if said removal would cause the applicable parcel (i.e., the Waterfront Hilton Parcel, Parcel C, and/or the Grand Coast Resort Parcel) to violate any provision or condition of any development or building entitlement, permit or approval. 13. Default. In the event a Licensee does not maintain its applicable improvement Area in a manner consistent with its obligations set forth in this Ageement after receipt of five (5) days written notice from City (or such longer notice as may, at the sole discretion of City, be reasonably necessary girder the circumstances), and in addition to whatever other rights and remedies it may have hereunder or under applicable law, City shall have the right, but not the obligation, to cause such maintenance to be performed, and all costs incurred by City to perform such maintenance shall be assessed to and billed directly to the defaulting License_ who shall solely be responsible for its payment. Payment by the defaulting Licensee to City shall be due within ten (10) days of billing. (a) Pursuant to the Cooperative Agreement for the construction phase of the project (District Agreement No. 12-375) between City and CalTrans, City is obligated to require the construction contractor for that portion of the Overcrossing Improvements subject to such Agre=merit (the "CalTrans Portion") to furnish, prior to beginEng any work on the CalTrans Portion., boil' a payment and performance bond in City's name, with both bonds complying with the requirements set forth in Section 3-1.02 of the then-cu.-rent State of California Standard KtiC.;J-BCRA►wa:erftntLLA1-14-01 January 19. 2WI '10- Specifications. MF shall assure that its construction contractor provides such bonds in a timely manner. i ..✓ (b) In addition to the bonds required by Subsection (a) of this Paragraph, NE shall assure that its construction contractor for the Overcrossing Improvements provides prior to beginning any work on the Overcrossing Improvements both a payment and performance bond in City's name equal to the difference betwcen one hundred twenty five percent (125%) of the total estimated construction cost of the Overcrossing Improvements, as determined by City, and the amount of the bonds provided in Subsection (a), so as to assure completion of and payment for those portions of the Overcrossing Improvements other than the CalTrans Portion, provided, however, that the bonds required by Subsection (a) of this Paragraph may be increased in amount and expanded in scope to accommodate the obligations of this Subsection (b) so that separate bonds are not required, if that is acceptable to CalTrans. (c) In addition to the payment and performance bonds required by Subsections (a) and (b) of this Paragraph, prior to beginning any work under this Agreement, I fF shall file with Ciy security in the sum of Fifty Thousand Dollars (550,000.00) to seduce its peff6ftnEice under this Agreement related to maintenance, repair, replacement and/or removal of the Overcrossing Improvements or any portion thereof. Such security may be in the form of (i) a letter of credit from a financial institution subject to regulation by the state or federal government pledging that such sum is cn deposit and guaranteed for payment, (d) the deposit, either with City or a responsible escrow agent or trust company, at the discretion of City, of money or negotiable bonds of the kind approved for securing deposits of public moneys in such amount, or (iii) a performance bond substantially in the form set forth in Exhibit' H" attached hereto, and to the satisfaction of the City Engineer and City Attorney of City, issued by a company. authorized to issue such bonds in the State of California, conditioned upon the faithful performance of MF's obligations for maintain, repair, replace and/or remove the Overcrossing Improvements. - (d) The amount of the security required by Subsection (c) of this Paragraph shall remain from year to year as established by Subsection (c) of this Paragraph, provided, however, that such amount shall automatically be increased on every third (3)") anniversary of this Agreement to an amount determined as follows: the base amount as then, in effect (i.e., as established by Subsection (c) of this Paragraph or as subsequently determined increased in accord with this provision) shall be increased by any percentage increase in take Consumer Price Index (All Items, Base 1982-84 = 100) as published by the United States Department of Labor Bureau of Labor Statistics, for All Consumers for the Los Angeles, Riverside, Orange County, CA Metropolitan Statistical Area which occurred in the preceding three (3) yea- period. MF shall provide increased security in such sum within ten (10) days following each such third (3`d) anniversary date. 1S. Assignment. The licenses herein granted are personal to each Licensee and are non -assignable. Notwithstanding the foregoing, City herby consents to the assignment by any Licensee of its rights and obligations under this Agreement to any successor -in -interest of such Licensee in the ground lease of the Waterfront Hilton Parcel, the Grand Coast Resort Parcel, or Parcel C, as the case may be, provided such successor -in -interest has first been approved in writing by Lae ground lessor of such Parcel(s) in accord with the provisions of the applicable ground lease. Concurrently with the submission of the notice of proposed transfer or assignment of a Parcel by a KXaNBCRA.iwateftnulA1-19-01 Januay 19. 2MI -1 I- Licensee under its ground lease, the Licensee shall submit to City: (a) a request for concurrent assignment of this Agreement; and (b) a fully executed instrument, in form and content reasonably approved by City, pursuant to which the transferee expressly assumes and agrees for the benefit of City to perform the liabilities, obligations and responsibilities of Licensee under this Agreement applicable to the Improvement Area appurtenant to the Parcel being conveyed; and (c) an aciciowledgme:1t, in form and content reasonably approved by City and executed by the transferee, pursuant to which the transferee acknowledges that the transferee has read and understands this Agreement and all of the provisions hereof; and (d) security in compliance with the requiremen is of PaL--agraph 14 of this Agreement, securing the obligations of such transferee under this Agreement. Upon approval in writing by City of each of such submissions, and upon written approval by L%e ground lessor of the transfer of rights in the Parcel, the City Administrator or his/her designee shall approve the proposed transfer of this Agreement, and the Licensee shall be released. from its executory obligations under this Agreement as to the appurtenant Improvement Area. In addition, the assignor shall be released from all obligations, in addition to the executory obligations, which exist from and after the effective date of the assignment if the assignee assumes such obligations in a writing to the written satisfaction of City. The Parties acknowledge that the Iicense for the Waterfront Hilton Parcel Improvement-Aiea-is appurtenant to the Waterfront Hilton Parcel, -the" ' licenses for the Grand Coast Resort Improvement Area and the Overcrossing Improvement Area are appur:emnt to the Grand Coast Resort Parcel, and the license for the Parcel C Improvement Area is appurtenant to Parcel C, and no such license may be separately assigned apart from said Parcel(s). Any attempt to assign a license except as specifically set forth in this Paragraph 15 shall be void and of no force or effect. 16. Applicablew. Each Licensee shall, at its sole cost and expense, faithfully observe in the use and occupation of the applicable Improvement Area all applicable municipal ordinances, and all applicable state and federal statutes now in force and which may hereafter be in force, and _ shall fully comply, at its sole cost and expense, with all applicable regulations, orders, and other requirements issued or made pursuant to any such ordinances and statutes. All building permits, business licenses and other applicable permits and licenses shall be secured and paid for by the . applicable Licensee. 17. Rules, and Reg.,larion-s. Each Licensee shall obey and observe (and cause its officers, employees, agents, contractors, licensees, invitees, and all ethers doing business with said Licensee to obey and observe) all rules and regulations of general applicability regarding the Improvement Area for which it is responsible as may be established by City at any time and from time to time during the term of this Agreement. 18. Worker!;' Cnrn ensa.' Ord Fml lovers' f_i2r}lity rsurance. Each Licensee agees to obtain (prior to commencing performance of the work hereunder) and to maintain in full force and effect during the term of this Agreement, at its sole cos; and expense, and to require each of its contractors and agents performing work under this Agreement to obtain (prior to commencing performance of the work hereunder) and to maintain in full force and effect during the term of such wort•:, workers' compensation and employers' liability instm?.nce in amounts not less than the State statutory limits. Such insurance shall be in forms and underwritten by insurance companies satisfactory to City. Each Licensee and each contractor and a;ent of each Licensee performing work K.tcG. S RAMataRmN A1.19-0t Januarl 19. ZX1 -12- under this Agreement stall furnish to City a certificate of waiver of subrogation under the terms of the workers' compensation and employers' liability insurance. 19. n+ During the entire term of this Agreement as to any Licensee, that Licensee shall maintain in effect general liability insurance covering is or City's or Redevelopment Agency's acts and on,.issions in the performance of this Agreement, the OCSD Agreement and/or the CalTrans Approvals, including coverage for bodily injury, property damage, products/completed operations, and blanket contractual liability, with single limits coverage in an amount not less than Ten Million DolIa-s (S 10,000,000.00) which minimum amount of coverage shall escalate on the fifth (S'-) anniversary of this Agreement and once every five (5) years 1creafter in proportion to the escalaticn, . if any, during such period in the Consumer Price Index. Said insurance shall also include automotive bodily injury and property damage liability insurance. In r ddition, NIF shall (i) provide insurance which specifically provides for coverage for damage or claims resulting from objects being thrown, dropped, or shot from the pedestrian overcrossing, for any reason or from any cause whatsoever, and (ii) shall require its construction contractor for the Overerossing Improvements to maintain in force, until completion and acceptance of the Overcrossing Improvements by CalTrans, insurance in such form and amot:,nt-as iequiredby the CalTrans-Approvals;provided, -however, that nothing in this clause shall prevent MF or its construction contractor from using the insurance otherwise required hereunder to satisfy the requirements of the CalTrans Approvals if such is acceptable to CalTrans. To the extent that the performance of this Agreement involves construction activities by a Lice: see which are not otherwise covered under that Licensee's general liability insurance policy, such Licensee shall obtain prior to the issuance of permits for such construction and shall maintain at all times until issuance of a certificate of occupancy for such construction, insurance in the same amounts and for the same coverage as above which corers such construction activities. During the period that construction work is occurring, a Licensee may elect to have its contractor provide the ins; ranee required herein, provided, however, that a contractor's failure to do so shall not excuse any oblization of such Licensee hereunder. All insurance shall be underwritten by insurance companies in fours satisfactory to City for all operations, subcontrac. work, contractual obligations, product or completed operations, and all owned vehicles and non -owned vehicles. Said insurance policies shall name City, Redevelopment Agency, any other public agency with an insurable interest as determined appropriate by City, and the officers, agents, and employees of .City and of Redevelopment Agency as additional insureds and shall specifically provide that any other applicable in=ance coverage shall be deemed excess cov:_age and that such Licensee's insurance shall be primary. Each policy shall specifically provide that Licensee's insurance shall be primary to any insurance otherwise provided by City or Redevelopment Agency. The irsura^.ce to be provided by Licensee may provide for a deductible or self -insured retention of not more than One Hundred Thousand Dollars (S100,000.00), with such amcLnt to increase at such times as there are increases in the policy limits as set forth above; provided that the percentage increase in &.c deductible or self -insured retention shall not exceed the pence: tape increase in the Consumer Price Index since the ias_ t adjustment. In the event such insurance does provide for a deductible or self - insured retention, that Licensee agrees that it will fully protect City, Redevelopment Agency, and the officers, agents and employees of City and of Redevelopment Agency in the same manner as these interests would have been protected had the policy or policies not contained the deductible or self -insured retention provisions. No cancellation pro"ision in any insurance policy shall be construed in derogation of the continuous duty of each Licensee to furnish insurance during the teen of this Agreement. K' c,;,HBCFt %W3t* otctiv_1g-Qs -13- JWUXY 19. ZX1 20. P.mp= Tsui.=. Each Licensee shall provide and shall maintain in force during the term of this Agreement property insurance with extended coverage endorsements thereon on the Improvements (whether Landscaping Improvements or Overcrossing Improvements) for which that Licensee is obligated, in an amount equal to the full replacement cost thereof. This policy shall contain a replacement cost endorsement naming Licensee as the insured and shall not contain a coinsurance penalty provision. The policy shall contain a special endorsement that such proceeds shall be used to repair or rebuild any such Improvements so damaged or destroyed, and, if not so used, such proceeds shall be paid to City. Should such proceeds be so paid to City, City may use the same for rebuilding or repair as necessary to restore the Improvements at the sole discretion of City. The policy shall name City as an Additional Insured. 21. Certificates Q f 1nsirance. Prior to the execution of this Agreement, both NVU and NIF shall furnish to Citycertificates of insurance and additional insured endorsements to each of Licensee's insurance policies, subject to written approval of the City Attorney, evidencing the insurance coverages required by this Agreement. Notwithstanding &.e foregoing, certificates of insurance evidencing coverage for construction activities may be furnished to City after execution of this Agreement, provided such c-- rt fica'tes are furnished to City prior to the issuance of any permit for such construction. These certificates shall: (a) provide the name and policy numbs. of the applicable carrier and policy; (b) state that the policy is currently in force; (c) name City, Redevelopment Agency, all public agencies with insurable interests as determined by City, and the officers, agents and employees of City and of Redevelopment Agency as an -additional insured; (d) provide that the policy will not be canceled, suspended, voided, reduced in coverage or in limits, or modified without thirty (30) days' prior written notice to City; and (e) demonstrate a deductible or self -insured retention consistent with the requirements of Paragraph 19 of this Agreement. Each Licensee shall maintain the insurance coverages required by this Agreement in force throughout the term of this A; eement, provided, however, that the insurance coverages required for construction activities related to an Improvement (whether a Landscaping Improvement or Overcrossing Improvement) need not be maintained after issuance of a certificate of occupancy by City for such Improvement. City is not responsible for premiums or assessments on any of these policies. The requirement of this Agreement to carry insurance coverages shall not derogate from the provisions for indemnification' of City by each Licensee under this Agreement, and shall not be deemed to waive, modify, or satisfy any such indemnification obligation. In addition, the Licensees' indemnification obligations under this Agreement shall not derogate from the insu-ance provisions under this Agreement, and shall not be deemed to waive, modify or satisfy any required insurance coverage and/or policy. City or its representative shall at all times have the right to demand the K.1CG,HSCRA1Waaedmr%rllA1-19-01 January 19. « Ct -14- original or a copy of any or all of these policies of insurance, which the Licensee upon whom such demand has been made shall provide to City within fifteen (15) days of City's request. 22. irOemr;fiestinn. Each Licensee shall protect, defend, release, indemnify, and save and hold harmless City, Redevelopment Agency, and the officers, officials, agents, and employees of Ciy and Redevelopment Agency (hereinafter, individually and collectively referred to as an "Inde:rnitec') from and against any and all liability, claims, losses, damages, expenses, judgments, costs, demands (including without limitation costs and fees of litigation of every nature) and/or penaly (hereinafter collectively referred to as "Liability) directly or indirectly arising out of or in connection with the Landscape Improvements and/or this Agreement, including without limitation (i) the acts of or for the benefit of any Licensee and/or any Indemnitee in connection with this Agreement, (ii) the obligations or operations hereunder undertaken or the performance of this Agreement by any Licensee or City, or (iii) the failure to comply with any of such Licensee's obligations contained in this Agreement. In addition, W shall protect, deend, release, indemnify, and save and hold harmless each Indemnitee from and against any -and' -all Liability'di ectly br-indirectly arising out of or'in connection with the Overcrossing Improvements, the.00SD Agreement and/or all or any of the CalTrans Approvals, including without limitation (i) the acts of or for the benefit of 1VT and/or any Inderuutee in connection with the Overcrossing Improvemewrs, the OCSD Agreement and/or all or any of the CalTrans Approvals, (ii) the obligations or operations undertaken by MF or City under or in the performance of the OCSD Agreement and/or all or any of the CalTrans Approvals, (iii) the failure to comply with any of IV "s and/or City's obligaticns contained in the OCSD Agreement and/cr all or any of the CalTrans Approvals, or (iv) Liability directly or indirectly arising out of or in connection with objects being thrown, dropped or shot from the Overcrossing Improvements, for any reason or from any cause whatsoever. In the event any Liability is asserted against an Indemnitee in any legal action, whether judicial, administrative, or otherwise (collectively, an "Action', with respect to which such Indemaitee is entitled to indemnification hereunder from a Licensee, said Licensee at its sole cost and expense shall provide and pay for counsel to defend tht Indemnitee in said Action as follows: (i) if the Indemnitee is being defended in said Action as"aa-i additional or co-insured under an insurance policy provided by the Licensee pursuant to Paragraphs 18 through 21 of this Agreement or otherwise, and the insurer has not reserved the right to later, deny coverage to the Indemnitee, neither City nor Redevelopment Agency shall have any right to approve or disapprove the identity of the counsel selected to defend the Indemnitee; (ii) if the Indemnitee is being defended in said Action as an additional or co-insured under an insurance pclicv provided by the Licensee pursuant to Paragraphs 18 through 21 of this Agreement or otherwise, but the insurer has reserved the right to ]a:er deny coverage to the Indemnitee, the Indemnitec shalI be entitled to so-called "Cumis" counsel (see San Diego Federal Credit v. Cumis Insurance Society, Inc. (1984) 162 Ca1.App.3d 358 and California Civil Code § 2860) in accordance with applicable California law, and City and/or Redevelopment Agency shall have the right to select Cumis counsel to defend the Indemnitee to the extent applicable to the selection of Cumin counsel generally; and (iii) if the Indemnitee is not being defended in said action as an additional or co-insured under an insurance policy provided by &.e Licensee pursuant to Paragraphs 18 through 21 of this Agreement or otherwise, or if the insurer denies the Indemnitee "Cumis" counsel when the Indemnitee is being defended in said Action as an KACT.-iECRA W3te-ftnV_LA1-19-01 Jan;ary 19. 2001 -15- additional or co-insured under an insurance policy provided by the Licensee pursuant to Paragraphs 13 through 21 of this Agreement or otherwise but the irsurer has reserved the right to Iater deny coverage to the Indemnitee, City and /or Redevelopment Agency shall have the right -to select reasonable counsel to defend the Indemnitee. The provisions of this Paragraph shall apply to every and all Liability including without limitation whether such Liability was caused by the passive negligence of an Indemnitee, an intentional omission or act of Indemnitee, or by an act for which an Indemnitee is strictly liable or whether such Liability shall occur or be discovered before or after the termination of this Agreement, the 4CSD Agreement and/or all or any of the CalTrans Approvals, but shall not apply to Liability caused by the active negligence, sole negligence or willful misconduct of an Indemnitee. 23. Hazardous Matedals. Each Licensee represents and warrants that any action it and:rtakes pursuant to this Agreement shall not generate any hazardous substance (as hereafter defined), and that it shall not store or dispose on any Improvement Area nor transport to or over any Improvement_ Area any hazardous substance. The foregoing provisions shall not be deemed to restrict or prohibit the use by a Licensee or its agents or einployees-6f such hazardous substances as - - are customarily used in the ordinary course of business for the installation, repair or maintenance of Improvements in any Improvement Area, provided that Licensee and its agents and employes comply with all provisions of law as to the use, storage and disposal of such substances. Each Licensee further agrees to clean up and remediate any hazardous substance on its Improvement Ares(s), and to hold each Indemnitee harmless from and indemnify each Indemnitee against any release of any hazardous substance and any Liability resulting from such release; including, without limitation, Liability arising from the passive negligence of an Indemnitee, except such Liability �1 which was caused by the active negligence, sole negUgence or willful misconduct of an Indemnitee. "Hazardous substance" shall be interpreted broadly to mean auy'substance or material defined or = desi,,pated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or any similar term by any federal, state, or local environmental law, regulation or rule presently in effect, as such laws, regulations or rules may be amended from time to time, or any federal, state, or local environmental law, regulation or rule which may be promulgated in the future, and it shall be interpreted to include, but not be limited to, any substance which after release into die environment will or may reasonably be anticipated to cwase sickness, death or disease. 24. C_ovenAnt Rnnning Mdth the .And. Each Licensee, for itself and its successors and assi.grs, agrees that this instrument and the obligations herein contained shall be a covenant running with the land, binding upon and inuring to the benefit of its successors, heirs, personal representatives, and assigns in and to the leasehold interest in the Waterfront Hilton Parcel, the Grand Coast Resort Parcel, and Parcel C, as applicable. 25. Remedies Cumulative. The remedies given to City.in this Agreement shall not be exclusive, but shall be cumulative and in addition to all remedies now or hereafter allowed by law. 26. .3Yajyr f�ch. The waiver by City of any breach by any Licensee of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by such Licensee or any other Licensee of the same or another provision of this Agreement. K %CCj-i8C;WWaterimnM.LA 1.1941 .iaruary 19.2M1 -16- 27. Entire A Bement. This Agreement contains the entire agreement relating to the rights herein granted and the obligations herein assumed and supersedes all prior discussions, negotiations, and agreements between or among the Parties relating to the subject matter set forth 4../ herein, provided, however, that nothing in this Agreement shall be deemed to affect the Amended and Restated Disposition and Development Agreement by and between Redevelopment Agency and Mayer Financial, L.P., dated September 14,1998, as amended, any lease entered into by a Licensee thereunder, or the Amended and Restated Development Agreement by and between City and Mayer Financial, Ltd., California Limited Partnership, and WH, approved on September 21, 1998. Not by way of limitation of the foregoing, this Agreement supersedes in its entirety the Prior License Agreement, which is terminated and shall be of no further force or effect. This Agreement may be amended or modified only by a writing executed by all of the Parties (or, if this Agreement has been terminated as' to any Licensee and any Improvement Area, by all of the Parties excluding said Licensee(s)). 28. Partial Trvalirl'rty. Should any provision of this Agreement be held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect unimpaired by the holding, so long as the reasonable expectations of the Parties hereto are not materially impaired. 29. S.rz�dval. Terms and conditions of this Agreement which by their sense and context survive the termination of this Agreement shall so survive. 30. Fees. In any action (with or withaut litigation) between or among any of the Parties hereto seeking enforcement of any of the terms and provisions of this Agreement, the prevailing Party in such action shall be entitled to have and to recover from the other Party its actual attorneys` fees, expert witness fees, statutory costs, court costs and other expenses in connection with such action or proceeding, whether such action is resolved by judgment, settlement, dismissal, or otherwise. 31. hloticcs. All notices to be delivered hereunder shall be in writing and shall be personally served or delivered by certif ed or registered mail, postage prepaid and return receipt requested. Each notice shall be considered given on the eylier to occur of (i) receipt, if personally delivered to the addressee, or (ii) forty-eight (43) hours following deposit in the United States mail, with postage prepaid. Any notice should be directed to the Party to whom the notice is directed at the address set forth as follows: To City: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attention: Director of Public Works With copies to the City's Director of Community Services and Real Estate Manager at the same address I K:cCN8CRA1WaterhCnC�lAt-19-01 -17- January 19. 2XI M� To MF: Mayer Financial, L.P. c/o The Robert Mayer Corporation 660 Newport Center Drive, Suite 1050 Newport Beach, CA 92660 Attention: Stephen K. Bone To WH: The Waterfront Hotel, LLC c/o The Robert Mayer Corporation 660 Newport Center Drive, Suite 1050 Newport Beach, CA 92660 Attention:- Stephen K. Bone Any Party may change its address for notice purposes by delivery of written notice to the other Parties in accordance herewith. 32. Captions. The captions appearing in this Agreement are for convenience only and are not a part of this Agreement and do not in any way lirrit, amplify, define, construe, or describe the scope of intent of the terms and provisions of this Agreement, or in any way affect this Agreement. 33. Rteardation. This Agreement shall be recorded against the Waterfront Hilton Parcel, the Grand Coast Resort Parcel, and Parcel C in the office of the Recorder of Orange County, California. 34. - Exhibits. Exhibits "A," `B," "C," "D," "E," "F," "G," and "H" attached hereto are incorporated herein by this reference. IN WITNESS NN `HEREOF, the Parties hereto have caused this Agreement to be executed as of the date first above N&Titten. APPROVED AS TO FORM: Spe 1 Counsel for City ATTEST: City Clerk tSignatures "CITY": CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California M or APPROVED AS TO FORM: K, CGIHSCRAIWaterfron"LLA1-19-01 �s/� January 19, = -1 g- City Attorney on next page.] REVIEWED AND APPROVED: City Administrator INITIATED AND APPROVED: Director of Public Works «%w„. THE WATERFRONT HOTEL, LLC, a California limited liability company By: Waterfront Development, Inc., a California corporation, Manager By: Name: Robert L. Ma er . Its: Chairman By: L Name: Slephen K. Bone Its: President & Secretary MAYER FINANCIAL, L.P., a California limited partnership By: RLM Management, Inc., a California corporation, its General Partner By: Robert L. Ma' er, Chairman By: Robe L. a r, , Secretary d-I13CRA1Waten4onft- Al-1941 ._..,ary 19, 2X1 -19- STATE OF CALIFORNIA ) ss. COUNTY OF Ott�Prnq �- ) On J A R.0 3 , 2001, before me, EZ09-A H 5. h 1h9Notary Public, personally appeared 509Ze.T L. M A40& a n t�N R08f-kr L. W) Avefe42. personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) Ware subscribed to the within instrument and acknowledged to me that Ite,' they executed the same in l ter/their authorized capacity(ies), and that by hie4w ltheir signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. DEBORAH S MMlm Cwv M M i 1131CM -� Not* PjMC-C ftr t0 omrQecw* IF My Carrm &MMAV 22.2001 [SEAL] STATE OF CALIFORNIA ) ) ss. COUNTY OF ©R'Prn� ) Notary Public 2001, before me, )MOR2Ai{ S. h-1 i-O(Z, Notary Public, personally appearea G f-rr d--;�Ir r X . V r1 C— personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(4 whose name(,) is/subscribed to the within instrument and acknowledged to me that he/ � executed the same in his/hen4heir authorized capacity(i•eT), and that by his/he44ie4 sipature(,9) on the instrument the person(,) or the entity upon behalf of which the person(k acted, executed the instrument. Witness my hand and official seal. 9 DEBORAH S. MILLE12 r Commission # 1131023 aw Notary Public - Cali%rnio Orange County Comm. Expires Apr 22 2001 [SEAL] K:%CG, IBCRA%Waterfront\LLA1-19-01 January 19, 2001 (?i� -j- Notary Public -20- w.1 GO VERIVMENT CODE 2 73 61. 7 I certify under the penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary: Deborah S. Miller Date Commission -Expires: Apr 22, 2001 - - Commission Number: #f1131023 Vendor Number: NNA 1 County where bond is filed: Orange Place of Execution: Santa Ana, California Date: April 17, 2001 By: ROGER C. EIMER First American Title Insurance Company STATE OF CALIFORNIA ) ) ss. COUNTY OF 0kg1 &4 ) On zVed L! , 2001, before me, /ClAl 6- , Notary Public, personally appeared P,sm �r'ua6l HOUGH EN personally known to me forprovad t ) to be the person(s) whose name(s) is/ar-e subscribed to the within instrument and acknowledged to me that he/she/tl-e-y executed the same in his/her/tom authorized capacity(4s), and that by hivher/4feir signature(s) on the instrument the person(s) or the entity upon behalf of which the person(&) acted, executed the instrument. Witness my hand and official seal. TERYLL L KING Commission # 1237815 Z Z Notary Public - California f. [SEAL Orange County My Comm. bgoires Oct 12, 2OC 3 KACGIHBCRA\Waterfrcnt\LLA1-1 M 1 January 19, 2001 -21- d'&q - p Notary Public s. GOVERNMENT CODE 27361.7 I certify under the penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary: Teryll L. King Date Commission Expires: Oct -12; -2003 - - - Commission Number: #1237815 Vendor Number: NNA1 County where bond is filed: Orange Place of Execution: Santa Ana, California r� Date: April 17, 2001 By:C*% OGE�fREIWER First Arne ric n Title Insurance Company EXHIBIT "A" WATERFRONT HILTON PARCEL SHEET 1 OF 2 PARCEL 2 N 31 '4735 " E (R) l - j S I Y LINEN 112, NE 114 SEC 14 2 T. 6 S., R. 17. W., M.M. 5 V 14 __ _P_0.B____ �J PARCEL I TRACT NO. 13045 LOT 1 M.M. 628146 & 47 Oil 1" = 100' Oi - L=00'08'40" R=2355.00' L=5.94' O L=73'3624" R=32.00' L=41. 1 1 " O N 89'43'07" E 43.24' EXHIBIT 'AIr VIA TERFRONT HILTON PARCEL SHEET 2 OF 2 ALL THOSE CERTAIN LANDS IN TiYE CITY OF HUNTINGTON VLACH. COUNTY OF ORANGE, STATE OF CALIFORNA, DESCRIBED AS FOLLOWS. PARCEL 1: LOT 1 OF TRACT No. 13045 AS PER MAP FLED IN BOOK 628 PAGES 46 AND 47 OF MISCELLANEOUS MAPS IN THE O.cFICE 'OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 2. THAT PORTION OF THE NORTH HALF OF THE NORTHEAST OUARTER OF SECTION- 14, TOWNSHIP 6 SOUK RANGE 11 WEST, IN THE RANCHO LAS BOLS4S,' AS PER L64P FILED IN BOOK 51. PAGE 14 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: EEGI,11MING AT A POINT IN THE SOUTH LINE OF SAID NORTH HALF THAT IS DISTANT THEREON NORTH 69' 43' 07*.EAST 10.328 FEET FROM THE CENTER LINE OF HUNTINGTON STREET, AS SHOWN ON RECORD OF SURVEY No. 81-1151. FILED 1N BOOK 103, PAGES 28 AND 29 OF RECORDS OF SURVEY IN THE OFFICE OF SAID COUNTY RECORDER, SAID POINT BEING ON A NON —TANGENT CURVE CONCAVE SOUTMVESTERLY, HAVING A RADIUS OF 2355.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 31' 56' 15" EAST, THENCE NORTHWESTERLY ALONG SAID CURVF 5.94 FEET, THROUGH A CENTRAL ANGLE OF 00' 03' 40' TO A POINT OF COMPOUND CUMTURE, S4/D CURVE BEING CONCAVE SOUMERLY, HAVING A RADIUS OF 32.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 31' 47' 350 EAST,THENCE WESTERLY ALONG SAID CURVE 4 1. 11 FEET, THROUGH A CENTRAL ANGLE OF 73' 3S' 24' TO SAID SOUTH LINE; THENCE NORTH 89' 43' 07' EAST 43,24 FEET ALONG SAID SOUTH LINE TO THE POINT OF BEGINNING. ALL AS SHOWN ON PAGE 1 OF THIS EXHIBIT - 08" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART -HEREOF DATED THIS _15. _CI DAY OF Q.,C� �, 1999 __&� '1W,11 PZ� 00)w 034 MICHAEL SIMON P.L.S. 6034 * LS No. LICENSE EXPIRES 051JOI01 Exp. 6-30-0-01 �'qTe OF CFaZ EXHIBIT "B" PAGE 1 OF 2 ./I PARCEL C ALL THAT CERTAIN LAND IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: LOT 2 OF TRACT MAP NUMBER 15535, RECORDED SEPTEMBER 14, 1999, IN BOOK 790 PAGES 44 TO 50 INCLUSIVE, OF MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALL AS SHOWN ON PAGE 2 OF THIS EXHIBIT "B" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. _ EX111BIT "B" PAGE 1 OF 2 ALL OF JENTAMC TRACT ARE 15= M= ACRrAtE.• 12.91J ACT ACREAGE: M649 1 JOTS EXHIBIT "B" PAGE 2 OF 2 TRACT NO. 15535 THIS SUSDINSION 1S FOR COMMERCIAL CONDOMINIUM PURPOSES IN THE CITY OF HUNRNGTON BEACH, COUNTY OF ORANGE, STATE OF CAUFORNIA SEE SHEET 1 FOR BDUNOMIY CONMOL SENC A .'WW" r A FOPJKN or SECDON 14. 10W9AP 6 SOUN MCCr. E1[ MONUMENT NOTES 047W RANGE 11 AM N RC .UNCW LAS BOLSAS AS PEP MAP RLCOPL+FD N BOOK 51, STAiDAEM AND BWS OF BEARP'M PALE 14 O' AISO]IMMIS MAPS RECOWS Or ORANGE OXM'TY R15LLE DAMINI00-5AN DEW M AwwAEL sao PALS Sam OAX OF SWIEY NOWA"R T998 �\ r EOUAU SET No nlwa /OIMO O A M3g'RVA7IO4 10 INE ON W IRARONGMW BEAO1 FOP FEDEsn A0/ ACa= OILY OV DIE MEANOERWC SLCM"S N Ai.ARCAS AS 910WN KWON. DESVDMTED 6TAWIAIEN PAPCD. 11.649 AG 8O' RO.W: FOP STREET ` 'y PIJRPOSCS DEOCAlEO •by 1RTTCON 'pr PARCEL C N 06'S0'16 w SHEET 5 OF 7 a.ar LOT 2 / / 15/6 AC \ SCE SNEEE 6 A 7 TOR J \ TAS[NEM N?ORM4T)ON \ \ WE ALSO HEREBY RDEASE AND REINOMW TO DIE CITY OF ~WTON BLACK Q. \ ALL VEHICULAR ACCESS RRRRS 70 PACM COAST MGMAY, O Sc4cK BOAEYARD, TWW DLCPHW DRWE AND PACYK AVENUE EXCEPT AT LMMMS AWROVEO B( 7HE MQTK Vi W'EF \r• / f zA' \ Ov \ \� 86' R.O.W. FOR SIREE7 \ flEW ON OEAC/iEa NERECN / \J � w/s- N 66JJ'Sf E 4077- / OI \ \21.94, LOT 1 `\ `\ N7f M*-W E // y S 4 is J y \ J J. \ SCALE 1'-40' EXHIBIT "B" PAGE 2 OF 2 EM11BIT licit PAGE 1 OF 2 GRAM) COAST RESORT PARCEL ALL THAT CERTAIN LAND IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: LOT 1 OF TRACT MAP NUMBER 15535, RECORDED SEPTEMBER 14, 1999, IN BOOK 790 PAGES 44 TO 50 INCLUSIVE, OF MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALL AS SHOWN ON PAGE 2 OF THIS EXHIBIT "C" ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. EXHIBIT licit PAGE I OF 2 N n ALL 15 RNIArAE IRACT NO. ISSJS ALRACRE"re.6)! 2 LOTS 2 tors BLOW Sul MODULES JO. 31, 40 AND 41 SEE "ETA FOR BOUNDARY LCWtROL. SHELF WOE(, MONUMENT HOIES OAXW STAMMIT AM BASIS OF BEARINGS LAT 2 h 5�6� LI AOOIIRRLN. R.O.WW DEDICATED HEREON \\\\\\ SEE DETAIL I ` \THIS SHEiT .,\ \ -/, �e p e " IJ 9 uo � /h/�ti�/ e6• RO.W. FOR ?/ STREET PURPOSES DEDICATED HEREON 7N 071e'I7' E .11.fi1' �S !r- N JW I4'IT W \ Q EASEMENrs To THE arY of HUMwcrON BEACH FOR PEDESTRIAN ACCESS ONLY ON 111E MFERW 9oEWALXS w DOE AREAS AS SHORN HEREON. Q AN EASEMENT TO DOE CITY OF HUNTINGTON BEACH FOR STOW DRAIN PONPOSES """ HEREM © AN EASEMENT TO THE CITY OF MMRNCWN REACH FOR WA IFR LIVE PURPOSES DLDICA TED HEREM. L57 �eja w �• ,fi/47 \r,�\�yf 9 DETAIL 1 TRACT NO. 15535 i I THIS SUBDMSION IS FOR COMMERCIAL CONDOMINIUM PURPOSES , IN THE C17Y OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF (,X�ORr BEIAC A RMVSVN OF A MARION Or SEMW 14, mwisw 6 Sourn RAWE II REST, IN PC RVA7p LAS BOLSlS AS PER ALA? RECORELD, 91 MOM 51. I I a• PALM' 14 Or MlSCEIIANEOUS, MAPS, RECORDS OF ORANGE CODNW I I y y�/ FIASLnE EACwQ7RwC-SAN II25I0 W. �'?g'• / / `,' AAVH4a SAMO4 P.LS $0J4 - 441E OF b1AB1EY A(MMBER 1993 ' o `I 4' SEE DETM 2----, \ Ly PARCEL DNS SHEET y e0' R.O.W. FORPURPOSES STREET Yr,"e4,. ?�/ x� '•t HEREON�7�m a •yI I At W I I ` moo. ,,. V•P L22 II I I 77�f,IS •fI• �s. 6f.. 5AEI74 OF7 �L I9 I N 56'0670" W 1 45.02' I ^(l N E 0 ArA SJ9•I W 30.66• LJ9 N 5ZO4,1r W 164.45' Y5T3 E 29.92' L40 N 5704'1 W 172.33, 715'I E 1Z06' L51 N 570.T'31 W I1.00' 6'44'IS W ie.w' Ls2 N vniw EE 3.w' IJ'13Y3 E Moo, W N 32-T3T4 W ISw•M4 W FN 2254• L54 N 3756'0 E611'IS W rB.w' LSS N SrOJ'51" W IOOO'JT56'06' E 10.9T L36 N JT36' E10.39' 3zw'S4" f 750'L57 N 5703'34 W 7.004 JT56 f 15.74' LSB N W48,5r E IS0.9• � LOr 1 jl+,�L u I5.102 A to SEE SNEET 6 AND ND 7 FOR O FASEMEM WLWWIKKI ,r \ , O \ ADDnION4L R.O.W. DEDIUTED HEREON LJJ N 7rMur E I Y.", r NNN JSsbr7'301614'I EW 259161• '3'QrE LR 1 6}}/S L34 0 5.17 Lztl ' ' ' o I I I J 3 ,yFil, '4db N 22 33333 I Yrsr IN Y ` �I � �1 I JI.e1• i' B bl I!3 N 6eDe'S0' W \ \ �6 2Dei' \ " IOU U ` N 577552 W \ I xl I� m 1 Ei1 Lg I 25'.3e E I �I Iz DETAIL 2 RC; t'• L5 I, 54' I 1 ` N7;iJ3'44"E I I I M:\PROCCIS1252\O6A\FM/DRC �\ 4S.09•, I 1\ N � NOT TO SCALE VIEW AVFJVUE EXHIBIT D WATERFRONT HILTON IMPROVEMENT AREA IMPROVEMENT AREA NOTE., THE IMPROVEMENT AREA SHALL INCLUDE THOSE PORTIONS OF THE PUBLIC SIDEWALK WHICH MEANDER OUTSIDE OF THE HIGHWAY RIGHT-OF-WAY ALONG THE NORTH SIDE OF PACIFIC COAST HIGHWAY. FUSCOE 5165 ifocxlaa9e Dry We 180 San Diego, Mifocaii 92121 ENGINEERING pine (m) v-m GYvi! Etl&eem . Land Surveyors 1 P PACnC ' COAST - hf1WA NOT TO SCALE EXNlSIT � PARCEL. C IMPROVEMENT AREA IMPROVEMENT AREA NOTE: THE IMPROVEMENT AREA SHALL INCLUDE THOSE PORTIONS OF THE PUBLIC SIDEWALK WHICH MEANDER OUTSIDE OF THE HIGHWAY RIGHT-OF-WAY ALONG TH15 NORTH SIDE OF PACIFIC COAST HIGHWAY. FUSCOE �5 (R�,1� 5u D�r{a�, GSfw l2121 ENGINEERING u (6I9) r?-= LY+Q ln&Eer* 4 rAnd Sur"ym PACL►-IC YEW` r \ i .. co a _..R1,,, LOT 1 TRACT 15535 r J PACFIC fM��' FKIFIWAY i _ f lffflilll-[tk1�1�.�tt�tililiitiil� ii'�ilidi i I Illllll illl I rllllnflilirTi I �TIIIIIIIII I II IIII ITIITIIti III Ilill11i11 1 c b f Illlllilill�f'lll Il Iflllliflifilillilll Il it lllllllllllillllr' IIIIIjIIllllilli` U'T,MMIF##-I�illr ' TRRWO rl01, i111141110 OI1f1 'till fir, mmul'# IV, r �ttftttttttffrg gill t,tftlf,tfomill WHO �[—��f[[[i,�if�lllllliL,�— W—s,[1[li[111i111W I I.iIL��Ii�ti!ILfiiii�iEllLii19i11�1�1 Its � —.`.-_ ------------------ L� SEE EXHIBIT •C' NOTE: THE IMPROVEMENTAREA SHALL INCLUDE THOSE PORTIONS OF THE PUBLIC SIDEWALK IMPROVEMENT WHICH MEANDER OUTSIDE OF THE HIGHWAY AREA RIGHT-OF-WAY ALONG THE NORTH SIDE OF PACIFIC COAST HIGHWAYAND THE WEST SIDE OF BEACH BOULEVARD. >liLt � lr FUSCOE NOT To SCALE �� h M WIN* 21�/ GRAND COAST RESORT ENGINEERING u (m) v--m IMPROVEMENT AREA �� pftrw Lna 55er�eyort .-S�F�if• sYi i-si II�II{1�111{IIIIII gal PACAC COAST HOWAY Jill 111111111111 : I Li � -n=Li I I I I I i I i i I I i I, EXHIBIT G OVERCROSSING IMPROVEMENT AREA IMPROVEMENT AREA FUSCOE &IDiet%U 4' ritzt ENGINEERING 11 (619) 597619) -ate L7df EB;faeert . Lad 5iir►eyors PERFORMANCE BOND FORM KNOW ALL MEN BY THESE PRESENTS: THAT WHEREAS, the City of Huntington Beach, County of Orange, State of California, has entered into a License Agreement to Provide Landscaping and Other Improvements in the Public Right-of-way (the "Contract") with hereinafter designated as the "Principal"; and WHEREAS, said Principal is required under the terms of the Contract to furnish a bond for the faithful performance of the Contract. NOW, THEREFORE, we as Principal, and as Surety, are held and firmly bound unto the City of Huntington Beach, hereinafter called the "Contracting Ciry" in the penal sum of one hundred percent (100%) of the amount of Dollars ($), lawful money of the United States of America, for payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. THE CONDITION OF THE OBLIGATION IS SUCH that, if the hereby bounded Principal, his/her or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by and well and truly keep and perform all the undertakings, terms, covenants, conditions and agreements in said Contract and any alteration thereof made as therein provided, all within the time and in the manner therein designated, and in all respects according to their true intent and meaning, then this obligation shall become null and void, otherwise it shall be and remain in full force and virtue. FURTHER, said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or modification of the Contract or of the work to be performed thereunder shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or modification of the Contract or of work to be performed thereunder. IN WITNESS WHEREOF, three (3) identical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety herein named on the day of The name and corporate FXHTRTT "H" TO I I ,FNSF A T F MFNT TO PROVTF T ANDSCAPING AND OTHER IMPROVEMENTS IN THE PT TR .I . RIGHT OF WAY K:\CG\H8CRA\W aterfrant\LLA1-19-01 January 19. 2001 seal of each corporate parry being hereto affixed and these presents fully signed by its undersigned representative pursuant to authority of its governing body. Principal Surety By By Its Its By By Its Its FXHTAIT "H" TO LICENSE AGRFFMFNT TO PROVTT)F LANDSCAPING AND OTHER TMPROVE; VT'S IN THF. N TR .I . RIGHT OF WAY K.1,CG\HBCRA1Waterfront%LLA1-19-01 January 19, 2001 0 P. ,.= This Document, is electronically recorded by FIRST AMERICAN TITLE INSUhtiNCE COMPANY Fit _. American Title Recorded In Official Records,County of Orange RECORDING REQUESTED BY AND Gary L Granville, Clerk -Recorder WHEN RECORDED RETURN TO: � 111 ]f Llr'li`�6tlf r�l.i a 136.00 cd7 4W. 20010232766 01:05pm 04/18101 City O untmgton Beach 118 48 A1216 2000 Main Street 0.00 0.00 0.00 0.00 30.00 0.00 0.00 0.00 Huntington Beach, CA 92648 AGREEMENT INVOLVTNG THE INSTALLATION OF A PEDF,STRTAN OVERCROSSING THIS AGREEMENT INVOLVING THE WTAL.LATION OF A PEDESTRMN O`IERCROSSWG (the "Agreement"} is entered into this '&0 day of 2001, by and between the CTTY OF HUNTINGTON BEACH, a municipal corporation of the 9tate of California ('City), the ORANGE COUNTY SANITATION DISTRICT, a public agency of the State of CaIifatnia ("Sanitation District') and MAYER FINANCL4L, L.P., a California limited pa-tnership (` ;fir M. RECITALS i A. City is the owner of that certain real property located in the City of Huntington Beach, County of Orange, State of California, and legally described in Exhibit "A", attached hereto and incorporated herein by this reference (the "Property). B. Sanitation District holds an approximately thirty (30) foot wide non—exclusive easement for public sewer and incidental purposes under and across a portion of the Property (the "Easement Area') as specified in that certain Grant of Easement between City of Huntington'Beach, California, as grantor, and County Sanitation District No. 11, of Orange County, California, a public corporation, as grantee, dated October 27,1981, and recorded on November 12,198I, in the Official Records of Orange County, California in Book 14288, Page 1436 (the "Grant of Easement'). Sanitation District is the successor -in - interest to County Sanitation District No. 11 of Orange County, California. Sanitation District currently owns and maintains an approximately fifty-four (54) inch diameter subterranean sanitary'sewer pipeline (the "Pipeline") within the Easement Area. C. IN'IF is the ground lessee of that certain real property located in the City of Huntington Beach, County of Orange, State of California kno,.Nn as Lot I of Tract Map Number 15535, recorded September.14,1999, in Beok 790, Pages 44 to 50, inclusive, of Maps in the Office of the County Recorder of Orange Count}; California (the "Grand Coast Resort Parcel'). Pursuant to that certain -Amended and Restated Development Agreement by and between City and Mayer Financial, L.P., that was approved on September 21,1998 and recorded on December 7, 1998, as Document No. 19980838602 in the Official Records of Orange County, California, and that certain License Agreement to Provide Landscaping and Other Improvements in the PublicRight-af--Way between, among othgrs, and City dated Za, 2001 (the "License Agreement'), in connection with the development of tl.e Grand Coast Resort Parcel, MF -1— g:lfu}ii12000agreelOCSD Pedestrian Overpass Agreerr.ent`112310114:02 Pit w� has been authorized by City to construct and maintain on behalf of City a public pedestrian overcrossing spanning Pacific Coast Highway between the Grand Coast Resort Parcel and the City beach parking lot to be substantially as described in City Conditional Use Permit 98-53 with Variance 98-22 as approved by City on January 26, 1999 (the "Pedestrian Overcrossing'O. D. A portion of the Pedestrian Overcrossing, consisting principally of a landing structure containing stairs and an elevator (the "Pedestrian Overcrossing Landing) is planned to be constructed over and upon a portion of the Easement Area in the approximate location as depicted in Exhibit 1113", attached hereto and incorporated herein by this reference (the "Pedestrian Overcrossing Portion of Easement Area'). AGREEMENT Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by City, Sanitation District and MF, the parties hereto agree as follows: - - - I. Right to Construct and Maintain Pedestrian Overcrossinz Landing Over and Uoon the Pedestrian Overcrossing Portion of the Easement Area. Sanitation District hereby affirms subject to the terms of this Agreement the City's and MF's right to construct, install, maintain, repair, reconstruct, and/or replace (as applicable) the Pedestrian Overcrossing Landing, together with the reasonable access of the public to the same, over and upon the Pedestrian Overcrossing Portion of the Easement Area. The Pedestrian Overcrossing Landing's foundation shall be constructed on pilings, which shall be placed not closer than ten (10) feet from the centerline of the Pipeline, and further, all pilings installed within the Pedestrian Overcrossiag Portion of the Easement Area shall be pre -drilled to a depth of not less than two (2) feet below the bottom of the Pipeline. Further, shoring of a type and location acceptable to Sanitation District, which acceptance shall not be unreasonably withheld, shall be permanently installed and left in place along both sides of the Pipeline for a distance of twenty-five (25) feet upstream and downstream of the centerline of the Pedestrian Overcrossing Landing and from a depth of not less than two (2) feet below the bottom of the Pipeline to two (2) feet below the finished ground elevation. - Sanitation District shall have the right to review and approve, which approval shall not be unreasonably withheld, all plans for the Pedestrian Overcrossing Landing in order to confirm conformance with the above requirements and that the Pedestrian Overcrossing Landing does not impair the physical structure of the Pipeline. Sanitation District shall provide City and MF with its continents, if any, with! thirty (30) calendar days of Sanitation District's receipt of the plans, and Sanitation District's failure to provide its comments within this time period shall be deemed Sanitation District's approval of the plans. -2- glfujii/2000ag:ee'OCSD Pedestrian Overpass Agreement/123/0I/4.02 PNt 2. Removal of Pedestrian Overcrossine Landing: Reimbursement of Sanitation District's �../ Costs. In the event of an emergency situation where public health and safety are at risk, Sanitation District shall have the right to expeditiously remove any portion(s) of the Pedestrian Overcrossing Landing, including any portion(s) beyond the limits of the Pedestrian Overcrossing Portion of the Easement Area, to gain necessary access to the Pipeline within the region of the Pedestrian Overcrossing Landing and where no other reasonable means of access is available. When such action is taken, Sanitation District shall give written notice to City and hiF as soon as reasonably possible. In this emergency situation, Sanitation District shall determine in its sole but reasonable judgment when it is necessary for Sanitation District to gain access to the Pipeline within the region of the Pedestrian Overcrossing Portion of Easement Area, and, further, whether removal of any portion(s) of the Pedestrian Overcrossing Landing is required in order to gain such necessary access and whether any other reasonable means of access is available. At all other times, Sanitation District agrees to work in cooperation with City and MF, and to obtain City's and MF's written concurrence prior to beginning any work in the Easement' Area, which City and NT will not unreasonably withhold, to minimize any damage to the Pedestrian Overcrossing Landing, and, further, to rr.inimize any associated access costs that might be attributable to the existence of the Pedestrian Overcrossing Landing. Pursuant to the License Agreement and this Agreement, MY shall reimburse Sanitation District for any costs incurred by Sanitation District in the removal of any portion(s) of the Pedestrian Overcrossing Landing and for any additional cost incurred by Sanitation District to repair, reconstruct, and/or replace the Pipeline -.;,hen such additional costs are attributable " to the existence of the Pedestrian Overcrossing Larding. Further, any costs to reconstruct the Pedestrian Overcrossing Landing following the removal of any portion(s) by Sanitation District shall be the responsibility of MF pursuant to the License Agreement and this Agreement. Notwithstanding the foregoing, City agrees to reimburse Sanitation District for the costs set forth in this Paragraph in the event that NT fails to reimburse Sanitation District. 3. MF's AccUtance of City's Obligations. atg_ions. Sanitation District acknowledges that, pursuant to the License Agreement and this Agreement, hfF has agreed to perform and assume, as its sole cost and expense, all of City's. liabilities, obligations and responsibilities to Sanitation District contained in this Agreement. NIF acknowledges and agrees that, pursuant to the License Agreement and this Agreement, it has assumed and will perform at its sole cost and expense all of City's liabilities, obligations and responsibilities to Sanitation District and/or others which arise out of or are related to this Agreement. 4. Indemnification. MF shall indemnify, defend and hold harmless Sanitation District from and against any and all claims, liabilities, and Iosses for personal injury or death, property damage, economic loss, and administrative and judicial fines and penalties, including without limitation reasonable attorneys' fees and litigation expenses, arising out of either of the following: (i) the failure of IiF to timely perform any of its obligations set forth in this Agreement; or (ii) any damage to, interference with, or interruption of the operation of the Pipeline that is proximately caused by the acts or omissions of MF hereunder. -3— gJFij:i/2000agree!OCSD Pedestrian Overpass Agreemend1/21'01/4M Fh1 Notwithstanding the foregoing, City agrees to assume 1viF's indemnification obligation to Sanitation District set forth in this Paragraph, but only after MF fails to perform its obligations under this Paragraph 4. 5. Notice. Any notice or required submittals, given under the terms of Us Agreement, shall be delivered personally, or mailed, certified mail, return -receipt requested, postage prepaid, addressed to the other parties as follows: CITY: Real Estate Manager City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 SANITATION DISTRICT: Board Secretary Ora-iae County Sanitation District P.O. Box 8127 Fou.-rain Valley, CA 92728-8127 Mayer Financial, L.P. c/o The Robert Mayer Corporation 660 Newport Center Drive, Suite 1050 Newport Beach, CA 92660 Attention: Stephen K. Bone ' 6. Attorneys' Fees. In the event suit is brought by any party to enforce the terms and provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorneys' fees. 7. Lawsuits or Claims. if Sanitation District files a IxN-suit or brings any claim against City arising out of or related to this Agreement, Sanitation District agrees to bring the same lawsuit or claim against Tip or its heirs, executors, administrators, successors, transferees, or assigns, as applicable. 8. Binding on Heirs and Successors. This Agreement and the obligations herein contained shall be a covenant running with the land (Grand Coast Resort Parcel), binding upon and inuring to the benefit of the heirs, executors, administrators, successors, transferees and assigns of the parties hereto. 9. Assignment. The rights and obligations of MF set forth in this Agreement are personal to MF and are non -assignable except as provided herein. Notwithstanding the foregoing, Sanitation District and City hereby consent to the assignment by 11F of its rights and obligations under this Agreement to any successor -in -interest of MF's right, title, and interest in and to the ground lease of the Grand Coast Resort Parcel, provided such successor -in -interest has first been approved in writir_g by the ground lessor of such parcel in accordance with the provisions of the applicable ground lease, and provided that I IF has assigned all of its rights, liabilities, obligations and responsibilities under the portion of the License Agreement that pertains to the Grand Coast Resort Parcel and the Overcrossing Improvements (as that terra is defined in the License Agreement) to the same assignee in -4— g:/fujE2000agree'OCSD Pedestrian Overpass Agreementtl/23/01/4.02 P I accordance with the assignment provision in the License Agreement. Concurrently with the submission of the notice of proposed transfer or assignment by MF (or any successor of MF) under said ground lease and the License Agreement, the assignor shall submit to City and Sanitation District: (i) a request for concurrent assignment of this Agreement to the same assignee of the ground lease of the Grand Coast Resort Parcel and the License Agreement; (ii) a fully executed instrument, in form and content reasonably approved by City and Sanitation District, pursuant to which the assignee expressly assumes and agrees for the benefit of City and Sanitation District to perform and assume all the liabilities, obligations and responsibilities of the assignor under this Agreement; and (iii) an acknowledgement, in form and content reasonably approved by City and Sanitation District and executed by the assignee, pursuant to which the assignee acknowledges that it has read . and understands this Agreement and all of the provisions hereof. Upon approval in writing by City and Sanitation District of each of such submissions, and upon written approval by the ground lessor of the transfer of the ground lease for the Grand Coast Resort Parcel and upon written approval by City of the assignment under the License Agreement, the City Administrator or his/her designee, on behalf of City, and the General Manager or his/her designee, on behalf of Sanitation District, shall approve the proposed assignment and transfer of this Agreement, and the assignor shall be released from its executory obligations under this Agreement. In addition, the assignor shall be released from all obligations, in addition to the executory obligations, which exist from and after the effective date of the assignment if the assignee assumes such obligations in a writing to the written satisfaction of City and Sanitation District. The parties ackno% ledge that MF s rights, liabilities, obligations and responsibilities hereunder are appurtenant to the Grand Coast Resort Parcel and shall not be assigned to any person or entity other than an assignee of MF's rights, liabilities, obligations and responsibilities under the ground lease and the portion of the License Agreement that pertains to the Grand Coast Resort Parcel and the Overcrossing Improvements (as that term is defined in the License Agreement). Any attempt by 1VIF or any permitted assignee of MF to assign this Agreement except as specifically set forth in this Paragraph 9 shall be void and of no force or effect. 10. Term. The term of this Agreement shall be coterminous with the portion of the License Agreement that pertains to the Grand Coast Resort Parcel and the Overcrossing Improvements (as that term is defined in the License Agreement), provided, however, that this Agreement may earlier terminate and be of no further force or effect at such time as the Pedestrian Overcrossing Landing is removed from the Pedestrian Overcrossing Portion of the Easement Area or as such time as the Pipeline is removed from the Pedestrian Overcrossing Portion of the Easement Area. 11. Sole and Only Agreement. This Agreement constitutes the entire agreement and understanding respecting the Pedestrian Overcrossing between Sanitation District, on the one hand, and City and 1vLF, on the other hand (with the understanding that there are or may be other agreements, including without limitation the agreements referred to in Recital C of this Agreement, between City and MF respecting the Pedestrian Overcrossing). Any agreements or representations respecting the Pedestrian Overcrossing between Sanitation District on the one hand, and City and/or MF on the ether hand, that are not expressly set forth in this instrument are null and void. This Agreement or any part of it may not be changed, altered, modified, limited or extended orally or by any agreement between or -S- g:/fujE/2000agreelOCSD Pedestrian Overpass Agreement/I/23/01/4:02 Pit among the parties, unless such agreement is expressed in writing, signed and acknowledge,_' �by the parties or their successors in interest. Except as expressly set forth herein, nothing in this Agreement shall be deemed to amend, supercede or modify the rights of City established in the Grant of Easement. 12. Triplicate Originals. This Agreement will be executed in triplicate originals, one for each party. Each of the triplicate originals shall be considered an original for all purposes. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first written above. SANITATION DISTRICT: ORANGE COUNTY SANITATION , a public agency of the State C �f�G�/mrr —31- 'r-Cn-/?bock punt name Its: Chair, Board of Directors By: 2 l' print narde Its: Secretary, Board of Directors APPROVED S TO for Oui District REVIEWED AND APPROVED: City'/Administrator CITY: CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California PA Mayor ATTEST: City Clerk APPROVED AS TO FORM: Zoo' City Attorney /Jjj `/13/6, INITIATED APPROVED: Director/q'f Admmistrative Services [SIGNATURES CONTINUED ON NEXT PAGE] -6— g:/fujii/2000agree/OCSD Pedestrian Overpass Agreement`1/23/01/4:02 PM [SIGNATURES CONTINUED FROMPRE VIOUS PAGE] 4CW12: MAYER FINANCIAL, L.P., a California limited partnership By: RLM Management, Inc., a California corporation,. its General Partner By: Robert L. May e Chairman By: (- Rob Ma�er\Jr., Secretary r By:�-�.- Attorneys for MAYER FINANCIAL, L.P. g:%fajii/M00agree/OCSD Pedestrian Overpass Agreement/l/23/01/4:02 PM EXHIBIT "A" PAGE I OF 2 TICOR TITLE -INSURANCE COMPANY OF CALIFORNIA DESCRIPTION: THAT PORTION 'OF FRACTIONAL 'SECTION.f4; TOWNSHIP b SOUTH, RANGE 11 WEST, SAN BERNARDINO BASE AND -MERIDIAN, IN RANCHO'LAS'BOLSAS, IN THE CITY OF HUNTINGTON• BEACH, COUNTY OF,ORANGE, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 31,. PAGE 14 OF'MISCELLANEOUS ?ZAPS. IN THE OFFICE OF THE COUNTY'RECORDER OF SAID ..COUNTY, -DESCRIBED-AS-FOLLOWS: - --- - -- -- = - ----- -- ._. - COMMENCING AT THE MOST SOUTHEASTERLY TERMINUS OF THE SOUTHEASTERLY RIGHT-OF-WAY LINE OF.HUNTINGTON AVENUE, AS DESCRIBED IN'THAT-CERTAIN AMENDMENT TO LEASE, RECORDED IN BOOK 597$, PAGE.910, OFFICIAL, RECORDS. -(SAID.: . RIGHT-OF-WAY LINE: CITED IN SAID -AMENDMENT TO- tEASE -AS NORTH -37- -DEGREES--54 MINUTES.5f SECONDS EAST 299.35 FEET)$ THENCE SOUTHWESTERLY ALONG - A PROLONGATION OF SAID RIGHT-OF-WAY LINE TO THE POINT OF INTERSECTION WITH THE NORTHEASTERLY LINE OF THAT STRIP OF LAND DESCRIBED IN THAT CERTAIN INDENTURE, RECORDED -IN BOOK 139, PAGE 9 OF DEEDS, RECORDS OF -SAID -COUNTY; -SAID -POINT OF .INTERSECTION BEING THE -TRUE POINT OF BEGINNING$ THENCE CONTINUING SOUTHWESTERLY ALONG'SAID PROLONGATION OF SAID RIGHT-OF-WAY LINE TO A POINT OF %INTERSECTION WITH THE LINE OF ORDINARY. HIGH TIDE OF THE PACIFIC OCEAN) THENCE SOUTHEASTERLY ALONG SAID ORDINARY HIGH TIDE LINE TO A POINT OF INTERSECTION WITH THE EASTERLY LINE OF SAID SECTION 14$ THENCC NORTHERLY ALONG SAID ..EASTERLY LINE OF SAID SECTION 14 TO A POINT OF INTERSECTION WITH THE SOUTHWESTERLY LINE OF•A STRIP OF LAND DESCRIBED IN THAT CERTAIN CORPORATION GRANT DEED, RECORDED IN BOOK 257, PAGE 213 OF DEEDS, RECORDS OF SAID COUNTY, (SAID SOUTHWESTERLY LINE -CITED IN SAID DEED Ar NORTH 53 DEGREES 04 MINUTES VEST.2579.28 FEET,' MORE OR LESS)$ THENCE NORTHWESTERLY ALONG SAID SOUTHWESTERLY -LINE -TO THE MOST SOUTHERLY SOUTHEASTERLY CORNER CF A PIECE -OF PAFCEL OF LAND DESCRIBED IN THAT•CERTAIN INDENTURE, RECORDED -'IN BOOK SOB, PAGE .448 OF OFFICIAL RECORDSi THENCE ALONG THE SOUTHERLY LINE THEREOF NORTH 68 DEGREES S6'MINUTES WEST 193.98 FEET TO THE'POINT OF INTERSECTIOH WITH THE NORTHEASTERLY LINE OF•.THAT STRIP OF LAND DESCRIBED IN THAT CERTAIN INDENTURE RECORDED IN TOOK 137, PAGE 9 OF DEEDS, RECORDS OF SAID COUNTY$ THENCE '.NORTHWESTERLY ALONG'SAID NORTHEASTERLY LINE -TO THE TRUE POINT OF BEGINNING. EXHIBIT "A" ,1 PACE I OF 2 EXHIBIT "All PAGE 2 OF 2 h�QlQ LM71.17i1'] p� (sn�r �aiirsswnvl -. Property S / 1� S PAP yt. _ Ca ii i S • Q Q EXHIBIT "A" PAGE 2 OF 2 EXHIBIT "I3" PAGE I OF I r� t t Centedinc of Pacific Coot Highway --------- ---Nsz°as�s4=w --- ---- --------------------------------------- ;-- t 1,354.29' Lurg r - . r i5 PACIFIC COAST HIGHWAY $� „ xz a r r e t t PROPERTY 0-49 � + — -• — — ` — •• t r t t "Pedestrian Overcrossing Portion "Pedestrian. Overcrossing of the Easement Area" Landing" EXHIBIT 1 #I3" PAGE 1 OF 1 . -. -.qr-. - - -} "Eassement" per Easement Agreement dated October 27,1981, recorded November 12, 1981, Book 14288, Page 1436, Official Records of Orange County No Scale STATE OF CALIFORNIA } ) sS. COUNTY OF D,eM6V 6 ) On 11PRII, q_.,,_2001, before me, V tfiNG , Notary Public, personally appeared ;PA mV ,yN_r.�1r�1 N personally known to me to be the person( - whose name( Ware subscribed to the within instrument and acknowledged to me that -helsheldmy executed the same in his/her/than authorized capacity(fes), and that by 4s/her/their signature(s) on the instrument the person( or the entity upon behalf of which the person(g) acted, executed the instrument. Witness my hand and official seal. L '1" Cr Notary P�blic rEi7LL L lUNG Commission # 1237815 [SEAL] Notary Public - Cuiltarria Orange County MyCamm.BPkM Oct TZ= STATE OF CALIFORNIA ) ) ' ss. COUNTY OF ) On r 2001, before me,� a r +.� l ti �� , Notary Public, personally appeared 1 person lly known to me (e1 to be the persoks whose names �/ r� subscribed to the within instrument and acknowledged to me that tig'nattur executed the same infer/ ei authorized capacit}(�e , and that by h r Eem' (s) on the instrument the personO or the entity upon behalf of which the persoiZs acted, executed the instrument. Witness my hand and official seal. Notary Public COMA CHA6HRY [SEALI COmmission#1Le 773 Notary Pub is - Ccrrfcrnia Orange Coon jr MrC.L MExpke: �n�/8,= STATE OF CALE'ORNIA 615:719710-M IE92a1.01 &04/03.101 -5- ) ss. COUNTY OF } "1 On Ub t, 200I, before me, �' N ut Ptdj Notary Public, personally appearedL -k&ggat. ,- personally ]mown to me (or proved to me on the basis of satisfactory evidence) to be the personM whose name islere subscribed to the within instrument and acknowledged to me that helshe hey executed the same in hisAterlth-cir authorized capacity(, and that by his/herAheir signature( on the instrument the person* or the entity upon behalf of which the person' acted, executed the instrument. Witness my hand and official seal. VQ 0 Notary Public - • - LINDA -S. • MORRISON Comm. f 1168569 [SEAL] sotaRY we t�uw� �'� Orm,e Conelty � I!y Ca am. E'yr•es 1�n.13, 2002 STATE OF CALIFORNIA ) ss. COUIVN OF ORANGE ) On April 5 2001, before me, Jan Smith Notary Public, personally appeared RORERT T. _ MAYER personally known to me { of ^^+�.r �•� •:a..,^�) to be the persons whose nameW is4R subscribed to the within instrument and acknowledged to me that heft executed the same in his hpi authorized capacity(ies), and that by hi� °�khe*- signature* on the instrument the person( or the entity upon behalf of which the person(s� acted, executed the instrument. Witness my hand and official seal. JAN 5MMi L + Cornmitsron # 1181340 r Notary arc - Calfomta j�'Qw Cronge. County WCWME�P e5Nx26=1 615M 19740-0003 JW_41.02 M'03101 -6- GOVERNMENT CODE 27361.7 I certify under the penalty of perjury that the notary seat on the document to which this statement is attached reads as follows: Name of Notary: Teryll L. King -Date Commission Expires: -Oct 120--2003 - =- -- --- -- - Commission Number: #1237815 Vendor Number: NNA1 County where bond is filed: Orange Place of Execution: Santa Ana, California Date: April 17, 2001 By: R GER IC.EIMER First American Title Insurance Company GOVERNMENT CODE 27361.7 I certify under the penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary: Corina Chaudhry Date Commission Expires: May 8, -2002 Commission Number: #1182773 Vendor Number: NNA1 County where bond is filed: Orange Place of Execution: Santa Ana, California Date: April 17, 2001 By: 91�0;L 4 A� ROGERIt. REIMER First American Title Insurance Company GOVERNMENT CODE 27361.7 I certify under the penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary: Linda S Morrison Date Commission Expires: Jan: -13 2002 - - - - - Commission Number: #1168569 Vendor Number: VSI County where bond is filed: Orange Place of Execution: Santa Ana, California Date: April 17, 2001 By: ROGER COREIMER .First American Title Insurance Company M� GOVERNMENT CODE 2 73 61. 7 I certify under the penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary: Jan Smith - ---Date Commission Expires: Apr 26,.2002 - - ------ ---- ---- Commission Number: #1181340 Vendor Number: NNA1 County where bond is filed: Orange Place of Execution: Santa Ana, California Date: April 17, 2001 By: '4"Osc R GER REIMER &;- ienL First American Title Insurance Company 9 FIRST AMERiCAN TITLE INSURANCE CQ .IFAI�Y First American Title RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: RUTAN & TUCKER, LLP ..../ 611 Anton Boulevard, Suite I400 _ Costa Mesa, California 92626 Attn.: Lori Sarner Smith, Esq. Recorded in Official Records,County of Orange Gary L Granville, Clerk -Recorder 1191111m1015WmR-1 54.00 20010232768 01:05pm 04118101 118 48 A30 A38 C3419 0.00 0.00 0.00 0.00 36.00 0.00 0.00 0.00 (Space Above For Recorder's Use) . This Assignment and Assumption Agreement and Consent to Assigt = t is recorded at the request and for the benefit of the RedeveIcpment Agency of the City of Huntington Beach and is exempt from the paym=t of a recording fee pursuant to Goverment Code § 6103. REDEVELOPMENT AGENCY OF THE CITY OF Hi MMOTON BEACH By Its: Dated• ( Z 200 f ASSIGN"MrNT AND ASSIT14 MON AGREENIEN"r AND CONSENT TO ASSIGNMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT AND CONSENT TO ASSIGNMENT (the "Assignment') is made and entered into as of this rd -day of NW1 , 200I (the "Effective Date), by and between MAYER FINANCIAL, L.P., a California Iimited partnership ("MP), as assigner, and PCH BEACH RESORT, LLC, a California limited liability company ("PCH'). as assignee, and is consented to by the Redevelopment Agency of the City of Huntington Beach ("Agency'), the City of Huntington Beach ("City'l, and the Orange County Sanitation District, a public agency of the State of California ("Sanitation District"). RECITALS A. On or about September 14, 1998, Agency and 1vfF entered into that certain Amended and Restated Disposition and Development Agreement (the "Original. DDA") which generally sets forth the various rights and obligations of the parties in connection with the development of that certain real property located in the City of Huntington Beach, more particularly described in Section 104 of the Original DDA as the "Site." On or about May 15, 2000, Agency and MF entered into that certain. First knplementation Agreement to Amended and Restated Disposition and Development Agreement (the "First Implementation Agreement'). On or about February 5, 2001, Agency and MF entered into that certain Second Implementation Agreement to Amended and Restated Disposition and Development Agreement (the "Second Implementation Agreement'). • The Original DDA, as modified by the First Implementation Agreement and Second Implementation Agreement, is referred to herein as the "DDA." ..r B. The DDA, among other things, provides for Agency to lease to NIF -and b'IF to lease from Agency that certain real property more particularly described in Section 10.3 of the DDA' as "Parcel A" (hereinafter, the "the Hotel Parcel"). The Hotel Parcel is depicted on Exhibit "A" and is more particularly described on Exhibit "B". as each are attached hereto and incorporated herein. The DDA further provides for W to develop the Hotel Parcel with a hotel in accordance with the provisions of the DDA and sets forth RIF's rights and obligations in connection therewith. C. On or about September 21, 1998, City, MF, and the Waterfront Hotel, LLC, a California limited liability company ("Waterfront'), entered into that certain Amended and Restated Development Agreement (the "Development Agreemenel, recorded on December 7, 1998, with the Orange County Recorder as Instrument No. 19980838602, which, among other things, provides that W shall develop the Site in conformity with the City's General Plan and applicable Specific Plan, and further sets forth MF's rights and obligations in connection therewith. - ----- - - - ------------- ---- __ _ - ---------- D. - City, Waterfront, and MF, entered into that certain License Agreement to Provide 'Landscaping and Other Improvements in the Public Right -of -Way dated February 5, 2001 (the "License Agreement"), to be recorded substantially concurrently herewith, which, among other things, sets forth certain rights and obligations of b F relating to the installation, maintenance, repair, demolition, removal and/or replacement of certain improvements located within an area defined therein -as -the "Grand Coast Resort -Improvement Area" (which Grand Coast Resort Improvement Area encompasses the entire Hotel Parcel) and for all improvements within the area defined therein as the "Overcrossing improvement Area." E. City, the Orange County Sanitation District, a public agency of the State of California ("Sanitation District"), and MF, entered into that certain Agreement Involving the Installation of a Pedestrian Overcrossing dated February 20, 2001 (the "Pedestrian Overcrossing Agreement"), to be recorded substantially concurrently herewith, which, among other things, sets forth the Sanitation District's affirmation of Mrs right to construct, install, maintain, repair, reconstruct, and/or replace a pedestrian overcrossing landing within a portion of the Sanitation District's thirty (30) foot -wide non-exclusive easement area, as described therein. F. The DDA, the Development Agreement, the License Agreement,- and the Pedestrian Overcrossing Agreement may be individually referred to herein as an "Agreement" and collectively as the "Agreements". G. MY desires to assign to PCH all of MF's rights and obligations set forth in the Agreements, as each Agreement relates to the leasing and the development of the Hotel Parcel and PCH desires to accept such assignment and to assume the obligations of MF set forth in the Agreements, as each Agreement relates to the leasing and the development of the Hotel Parcel, all upon the terms and conditions as more particularly set forth herein. M H. Section 316 of the DDA provides that MF may assign its rights and obligations set forth in the DDA without the prior written consent of Agency as long as the assignment is made to an entity in which either MF or Robert L. Mayer and Stephen K. Bone retain a minimum of fifty-one percent (51%) of the ownership or beneficial interest and retain management control. Section 316(c) of the DDA further provides that any prospective assignee of MF's right and obligations set forth in the DDA shall be required, as a condition precedent to the effectiveness of the assignment, to assume said rights and obligations by a writing first approved by Agency as to form and content, which approval shall not be unreasonably withheld, and shall be in a fora: recordable among the land records of Orange County, which consent will be considered in accordance with Section 316(b) of the DDA. I. Section 3:1.5 of the Development Agreement provides that MF may assign its rights and obligations set forth in the Development Agreement, provided that such assignment is in accordance with the transfer provisions of the DDA. Section 3.1.5.3 of the Development Agreement further provides that, upon Agency's approval of MF's assignment of the DDA (or any portion thereof), the City Administrator shall approve an assignment of the Development Agreement. Section 3.1.5.2 of the Development Agreement further provides that, concurrently with submission of the notice of proposed transfer or assignment under the DDA, MF shall - -- -submit to City: -(a) a request for -concurrent assignment_ of the-_Develo ment A eement (b) a fi,lly executed instrument, in form and content reasonably acceptable to City, pursuant to which the transferee expressly assumes and agrees for the benefit of City to perform the obligations of MF set forth in the Development Agreement applicable to the Site or.,portion thereof being conveyed, and (c) an acknowledgement, in form and content reasonably approved by City and executed by the Assignee, pursuant to which the Assignee acknowledges that it has read and understands the Development Agreement and all of the provisions thereof. J. Paragraph 15 of the License Agreement provides that MF may assign its rights and obligations under the License Agreement, provided that the proposed transferee has first been approved in writing by the Agency, as the ground Iessor of the Hotel Parcel. Paragraph 15 of the License Agreement further provides that, concurrently with submission of the notice of the proposed transfer or assignment of the Hotel Parcel by MF, MF shall submit to City: (a) a request for concurrent assignment of the License Agreement, (b) a fully executed instrument, in form and content reasonably approved by City, pursuant to which the transferee expressly assumes and agrees for the benefit of City to perform the liabilities, obligations and responsibilities of MF set forth in the License Agreement applicable to the site or portion thereof being conveyed, (c) an acknowledgement, in form and content reasonably approved by City, executed by the transferee, pursuant to which the transferee acknowledges that it has read and understands the License Agreement and all of the provisions thereof, and (d) security in compliance with the requirements of Paragraph 14 of the License Agreement, securing the obligations of such transferee under the License Agreement. K. Paragraph 9 of the Pedestrian Overcrossing Agreement provides that MF may assign its rights and obligations under the Pedestrian Overcrossing Agreement, provided that the proposed assignee has first been approved in writing by the Agency, as the ground lessor of the Hotel Parcel, and provided that MF's rights and obligations under the License Agreement have properly been assigned to the same assignee. Paragraph 9 of the Pedestrian Overcrossing Agreement further provides that, concurrently with submission of the notice of the proposed. -3- transfer of the Hotel Parcel by hfF, OF shall submit to City and the Sanitation District: (i) a request for concurrent assignment of the Pedestrian Overcrossing Agreement to the same assignee of the License Agreement, (ii) a fully executed instrument, in form and content reasonably approved by City and Sanitation District, pursuant to which the assignee expressly �..✓ assumes and agrees for the benefit of City and Sanitation District to perform and assume all liabilities, obligations and responsibilities of MF set forth in the Pedestrian Overcrossing Agreement, and (iii) an acknowledgement, in form and content reasonably approved by City and Sanitation District, executed by the assignee, pursuant to which the assignee acknowledges that it has read and understands the Pedestrian Overcrossing Agreement and all of the provisions thereof. L. MF has submitted a request to Agency, City, and Sanitation District for concurrent assignment by and from MF to PCH of all of MF's rights and obligations set forth, as applicable, in the DDA, the Development Agreement, the License Agreement, and the Pedestrian Overc, sling Agreement, as each of Agreements relates to the Hotel Parcel. M. Agency has determined that the assignment and assumption contemplated hereby satisfies the requirements set forth in Section 316(f) of the DDA. City has determined that the assignment .and . assumption contemplated-' ontemplated _ hereby _ satisfies __(i) _the requirements set forth in Sections 3.1.5.1. 3.1.5.2, and 3.1.53 of the Development Agreement and (ii) the requirements set forth in Paragraph 15 of the License Agreement. City and Sanitation District have determined that the assignment and assumption contemplated hereby satisfies the requirements set forth in Paragraph 9 of the Pedestrian Overcrossing Agreement. Accordingly, Agency, City, and Sanitation District desire to consent to the terms and provisions of this Assignment. N. All capitalized terms not defined in this Assignment shall have the meanings ascribed to them in the DDA. COVEN1AM Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, h7' and PCH hereby agree as follows: 1. Assignment. Effective upon the Effective Date, MF hereby assigns, transfers, and conveys to PCH, subject to the provisions set forth in the subsequent sentence, all of hiF's rights and obligations as set forth in the Agreements, as such rights and obligations relate to the leasing and the development of the Hotel Parcel. With respect to the DDA, I4ff, PCH, and Agency hereby acknowledge that the foregoing assignment specifically includes each and every right and obligation of MF and Agency pursuant to the Schedule of Feasibility Gap Payments as set forth on Attachment No. 8, as set forth in its entirety in the Second Implementation Agreement. Notwithstanding the foregoing, MF shall remain fully responsible and liable for the performance of all of the Subdivider's obligations under that certain Subdivision Agreement by and between the City and Mayer Financial, Ltd. for Tract No. 15535 dated August 2, 1999 ("Subdivision Agreement'); provided, however, that as to the Hotel Parcel, UT shall no longer be responsible and liable for the performance of the Subdivider's obligations under the Subdivision Agreement as to the Hotel Parcel if and when such Subdivision Agreement is assigned to PCH pursuant to n an assignment formally approved by the City Council of the City or a new Subdivision Agreement is entered into between City and PCH with respect to the Hotel Parcel and approved by the City Council of the City. 2. Assumption. Effective upon the Effective Date, PCH hereby accepts the assignment from NT of those portions of the Agreements that relate to the leasing and the development of the Hotel Parcel and expressly agrees to assume, keep, perform, and fulfill all the terms, conditions, covenants, and obligations required to be kept, performed, and fulfilled by NIF as set forth in the Agreements, as such Agreements rclata to the leasing and the development of the Hotel Parcel. Pursuant to Section 3.1.5.2 of the Development Agreement, PCH hereby acknowledges that PCH has read the Development Agreement and understands the provisions thereof. Pursuant to Paragraph 15 of the License Agreement, PCH hereby acknowledges that PCH has read the License Agreement and understands the provisions thereof. Pursuant to Paragraph 9 of the Pedestrian Ove ., ssing Agreement, PCH hereby acknowledges that PCH has read the Pedestrian Over-rossing Agreement and understands the provisions thereof. 3. Mutual Indern_ nif cation. MF shall indemnify, defend, and hold harmless PCH from all claims arising out of any failure of hIF to keep, perform, and discharge any of the - - - obligations set forth in _the Agreements relating to the leasing or the development of the Hotel Parcel that may accrue prior to the Effective Date. PCH shall indemnify, defend, and hold - - harmless MF from all claims arising out of any fail -are of PCH to keep, perform, and discharge any of its obligations set forth in the Agreements relating to the leasing or the development of the Hotel Parcel that may accrue from and after the Effective Date. 4. Miscellaneous 4.1 Attomevs' Fees. If any party to this Assignment commences an aztion against any another party to this Assignment arising out of or in connection with thii Assignment, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the losing party. MF and PCH hereby acknowledge that Agency and City are not' parties to this Assignment, and by consenting to this Assignment do not become parties to this Assignment. 4.2 Bindinz Covenants; Successors. This Assignment shall be binding upon the parties hereto and their respective heirs, representatives, transferees, successors, -and assigns. 4.3 Entire Assignment, Waivers, and Amendments. This Assignment incorporates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous Assignments between the parties with respect to all or part of the subject matte, hereof. All waivers of tha provisions of this Assignment must be in writing and signed by the appropriate authorities of the party to be charged. Any amendment or modification to this Assignment must be in writing and executed by NEF and PCH. 4.4 bteroretation; Goveming Law. This Assignment shall be construed according to its fair meaiing and as if prepared by all of the parties hereto. This Assignment shall be construed in accordance with the Iaws of the State of California in effect at the time of the execution of this Assignment. -5- 4.5 Severability. If any provision in this Assignment is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. 4.6 Execution -in Counterpart. This Assignment may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. 41 -6- Y IN WITNESS WHEREOF, the parties hereto have executed this Assignment and Assumption Agreement and Consent to Assignment as of the Effective Date. Date: April 3, 2001 Date: April 3, 2001 MAYER FINANCIAL, L.P., a California limited partnership By: RLM Management, Inc., a California corporation, General Partner By: C^ Robert L. Mayer, Presi ent «r,F„ PCH BEACH RESORT, LLC, a California limited liability company.; By: Grand Resort, LLC, z California limited liability company, Managing Member By: RLM Management, Inc., a California corporation, Manager By: ", Robert L. Mayer, President [Consents continued on following pages] -7- "PCH" poemp a WN21NJ (Agency) In consideration of PCH's assumption of the obligations of MF set forth in the DDA relating to the leasing and development of the Hotel Parcel, Agency hereby consents to MF's assignment to PCH of MF's rights and obligations set forth in the DDA relating to the Ieasing and the development of the Hotel Parcel. Additionally. w ith respat to the DDA, Agency hereby acknowledges that the foregoing assignment specifically includes each and every right and obligation of MF and Agency pursuant to the Schedule of Feasibility Gap Payments as set forth on Attachment No. 8, as set forth in its entirety in the Second Impiemcntation AV=ment. -Agency hereby releases MF from any obligation or liability set forth in the' DDA which relates to the leasing or the development of the Hotel Parcel and which may arise subsequent to the Y Effective Date of the assignment and shall look solely to PCH for performance of those certain obligations relating to the leasing and the development of the Hotel Parcel. APPROVED AS TO FORM: Agency General Counsel APPROVED AS TO FOMI: Tl±= o . Kane, Balimer & erkman Agency Special Counsel REDEVELOPMENT AGENCY OF THECTTY OF HUNTINGTON BEACH By: . 6 Faux ve Director 18- CONSENT AND RELEASE (City) In consideration of PCH's assumption of the obligations of MF set forth in the Development Agreement, the License Agreement, and the Pedestrian Overcrossing Agreement relating to the development of the Hotel Parcel, City hereby consents to MF's assignment to PCH of MF's rights and obligations set forth in the Development Agreement, the License Agreement, and the Pedestrian Overcrossing Agreement relating to the development of the Hotel Parcel. City hereby releases MF from any obligation or liability set forth in the Development Agreement, the License Agreement, and the Pedestrian Overcrossing Agreement which relates to -- the development of the Hotel Parcel which may arise subsequent to the EffectiveDateof the --- -_. assignment and shall look solely to PCH for performance of those certain obligations relating to the development of the Hotel Parcel. THE CITY OF HUNTINGTON BEACH By: City AdEinisirator APPROVED AS TO FORM: City Attorney APPROVED AS TO FORM: Kane, Ballmer & Berkman City Special Counsel CONSENT AND RELEASE (Sanitation District) In consideration of PCITs assumption of the obligations of MF set forth in the Pedestrian Overcrossing Agreement relating to the development of the Hotel Parcel, the Sanitation District hereby consents to MF's assignment to PCH of MF's rights and obligations set forth in the Pedestrian Overcrossing Agreement relating to the development of the Hotel Parcel. The Sanitation District hereby releases MF from any obligation or liability set forth in the Pedestrian Overcrossing Agreement which relates to the development of the Hotel Parcel which may arise subsequent to the Effective Date of the assignment and shall look solely to PCH for performance of those certain obligations relating to the development of the Hotel -Parcel. APPROVED AS TO FORM: By. ) . � • pari ice.../, 1' 1 11' It REVIEWED AND APPROVED: By: �� a'►✓t Print Name: City Administrator ORANGE COUNTY SANITATION DISTRICT, a public agency of the State of California - Its: oard of Directors 'By: / //( , Print Nam . lje•),,7 Its: Secretary, Board of -10- STATE OF CALIFORNIA ) [MFI ss. COUNTY OF ORANGE ) On April 3, 2001 , before me, Jan Smith , Notary Public, personally appeared ROBERT L . MAYER , personally known to me to be the person( whose named is/are subscribed to the within instrument and acknowledged to me that he/he,&e)- executed the same in hiss authorized capacity(i*, and that by hisA:e"4heir signature(a) on the instrument the person* or the entity upon behalf of which the person(s) acted, executed the instrument. , Witness my hand and official seal. JAN SMITH Notary li P�'�.roMmisslon#1181340 l ZNotary PUDIIC - California Orange County Comm. Expires Apr26.20n2 [SEAL] STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) c On April 3, 2001 , before me, 7 a n Smith , Notary Public, personally appeared ROBERT T, . MAYER , personally known to me ) to be the person(4) whose name*is/4% subscribed to the within instrument and acknowledged to me that he4heAhey executed the same in hiss authorized capacity(ie&), and that by hiss signature(.$) on the instrument the person(E4 or the entity upon behalf of which the persons') acted, executed the instrument. — Witness my hand and official seal. ... JAN SMITH ` + Commission a 1181340 i -� Notary Puolic - California Orange County My Comm. Expires Apr26, 20Q2 -I1- STATE OF CALIFORNIA ) [AGENCY] ss. COUNTY OF J r_,r. ,A16 ,5 ) On /47%/G 9dDl . before me, /E,e /�C L. Am4f , Notary Public, personally appeared K14 y 15'/1. V4!54 personally known to me a dcnce) to be the person(i) whose name(-s) is/a;;a subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/1e/their authorized capacity(ies), and that -by his/hefAheif signature(&) on the instrument the person(e) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. TERYLL L KING ---[SEAL] C'OMMISsion #-1237815 Notary Public - CallfaR$a Orange County My Comm.5vkwOct 122i STATE OF CALIFORNIA ) ) ss. COUNTY OF On P PR) y , -Loci ,before Notary Public, personally appeared personally known to me (or proved to a on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscrib to the within instrument and acknowledged to me that he/she/they executed the same in hi er/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the on(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. [SEAL] Notary Public -12- f STATE OF CALIFORNIA ss. COUNTY OF [AGENCY] On . , bef e me, , Notary Public, personally appeared , personally known to me (or proved o me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subs xk to the within instrument and acknowledged to me that he/she/they executed the same in er/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand an4/official seal. Notary Public --- - -- [SEAL] - STATE OF CALIFORNIA ) ) ss. COUNTY OF ORAhlGG ) " On A PR 1 L q , ,., oD 1 , before me, 7-6x y t [ C • Ki�1l T , Notary Public, personally appeared KA y S/c V cp , personally known to me ( to be the person(s) whose name(&) is/aFe-subscribed to the within instrument and acknowledged to me that he/shc4wr executed the same in hisANwAher authorized capacity(ies) and that by his/I=Aheir signature(s) on the instrument the person(s) or the entity upon behalf of which the person(&) acted, executed the instrument. Witness my hand and official seal. Notary . lic TE7 L KING [SEAL] r5 Commission# 1237815 Notary Public - Califamia Orange County My C mm. Evires Oct 1z2003 ,- -13- GOVERNMENT CODE 27361.7 I certify under the penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary: Teryll L. King Date Commission Expires: Oct 12, 2003 - . .Commission Number: #1237815 --- - - -- - - — ... - - — Vendor Number: NNA1 County where bond is filed: Orange Place of Execution: Santa Ana, California Date: April 17, 2001 . �J By: ROGER C EWER First American Title Insurance Company STATE OF CALIFORNIA COU'�TY OF O rm4%-Z — ISA.NITATION DISTRICT] ss. On fr+[ .z?, before me, Notary Public, Personally appeared personally known to me { e) to be the person whose name�tm subscribed to the within instrument and acknowledged to me that (PY*X-thcCxecuied the same fi(ZM a !their authorized capacity , and that b 3, .'tom signatureW on the instrument the personV or the entity upon behalf of which the persoav, acted, executed the instrument - Witness my hand and official seal. C� - - CO Notary Public [SEAL) CORONA CH OAUDRY CMmUon # 11C2773 NCtcY Pub c - CatfoNlc Oronw County - S STATE OF CALIFORNIA )SNITATI�N DISTRICT] +...J • . ) ss. COUNTY OF On , r \c "k rr 711 L , before me, _ n r ; N� �. �,;T, Notary Public, personally appeared personally known to me ( -baste-e to be the person whose name{ am subscrbed to the within instrument and acknowledged to me that -bel§thhe,: executed the same in-his'lCeerlthek authorized capacity{*j, and that by hisl:E�r/thee . signature'M on the instrument the person or the entity upon behalf of which the person's) acted, executed the instrument: Witness my hand and official seal. (�- . Notary Public CORONA CHALDHRY CommW'on N f 1F, m [SEAL] Notary.Puot;c- Orange Co- n - MvCo'nrn.ix�•• 9 -IS- GOVERNMENT. CODE 27361.7 I certify under the penalty of perjury that the notary seal on the document to which this statement is attached reads as follows: Name of Notary: Carina Chaudhry Date Commission Expires: May 8, 2002 Commission Number: #1182773 - --- - - -- Vendor Number: NNA1 County where bond is filed: Orange . Place of Execution: Santa Ana, California Date: April 17, 2001 By: ROMER Of REIMER First American. Title Insurance Company EXHIBIT "A„ DEPICTION OF THE HOTEL PARCEL [SEE ATTACHED] M Exhibit "A" To Assignment and Assumption Agreement and Consent to Assignment li .MAP OF THE SITE I ( I N35-22.25-E (R) E'LY LINE SEC 14, ` T. 6 S.. R. 11 W., W.M. 51 /14 N'LY LINE S 1/2. NE 1/4 SEC 14, T.G.S.. R.11.W., M.M. 51 /1 1 ZP.0.8. N8742'STE 1658.7 ' f L-055416" R-2452.00' Lu,252.68' A IV THE SITE b��Sx� ?st8'x J 4 5.5 6 AC. 1, � D \ � m 0441, 19 0 6 co y/ s� ri cti 6. "HOTEL PARCEL" j NDO'44'22"W 12.53' Ny3'05'49rW 172.33' S74'34'12"W 45.01' EXHIBIT "B" LEGAL DESCRIPTION OF THE HOTEL PARCEL That certain real property located in the City of Huntington Beach, County of Orange, State of California, as described as follows: LOT 1 OF- TRACT NO. 15535, AS SHOWN ON MAP FILED IN BOOK 790, PAGES 44 TO 50 INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. Exhibit "B" To Assignment and Assumption Agreement and Consent to Assignment al STATE OF CALIFORNIA —BUSINESS AND TRANSI ION AGENCY DEPARTMENT OF TRANSPORTATION DISTRICT 12 3347 MICHELSON DRIVE, SUITE 100 IRVINE, CA 92612 August 25, 2000 GRAY DAVIS, Govemor `Y tl f�,�� • /7,A4- l r� �kc .chi Mr. Robert Eichblatt 12-Ora-1-KP 38.78 City Engineer Ocean Grand Resort City of Huntington Beach Pedestrian Over crossing PO Box 190 12221-01350K Huntington Beach, CA 92648 Dear Mr. Eichblatt: Subject: Cooperative Agreement No. 12-373 Design and Project Development Enclosed is a fully executed copy of Cooperative Agreement No. 12-373 between STATE and City of Huntington Beach for the above referenced project. We thank you for your cooperation in processing this Cooperative Agreement. If you have any questions, please call me at (949) 724-2134. Sincerely, 1� TAM NGUYEN, Chief Design Branch B Enclosure I 1 48,5 12-ORA-1 KP 38.78 . Ocean Grand Resort Pedestrian Overcrossing (POC) Bridge 12221-01350K District Agreement No. 12-373 .. _..... _.... COOPERATIVE AGREEMENT This AGREEMENT, entered into on July 5, 2000 , between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as STATE. and CITY OF HUNTINGTON BEACH, a body politic and municipal corporation of the State of California, referred to herein as CITY District Agreement 12-373 RECITALS 1. STATE and CITY, pursuant to Streets and Highways Code Section 130, are authorized to enter into a Cooperative Agreement for improvements to State highways within CITY: 2. CITY desires State highway improvements consisting of construction of Ocean Grand Resort Pedestrian. Overcrossing (POC) bridge on Route 1 at 0.41 km north of Route 39, referred to herein as "PROJECT", and is willing to fund one hundred percent (100%) of all capital outlay and staffing costs, except for costs of STATE's oversight of environmental, design and right of way activities. 3. The POC will be constructed with abutments outside of the State's Right of Way, and a clear span over the State's Right of Way. 4. This Agreement supersedes any prior Memorandum of Understanding (MOU) relating to PROJECT. 5. A separate Cooperative Agreement will be required to cover responsibilities and funding for the PROJECT construction phase. 6. The parties hereto intend to define herein the terms and conditions under which PROJECT is to be developed, designed, and financed. SECTION I CITY AGREES: 1. To fund one hundred percent (100%) of all preliminary and design engineering costs, including, but not limited to, costs for preparation of contract documents and administration of the PROJECT construction contract. 1 District Agreement 12-373 2. To have a Project Study Report/Project Report (PSR/PR), Environmental Document (ED), and detailed Plans, Specifications and Estimate (PS&E) prepared at no cost to. STATE and to submit each to STATE for review and approval at appropriate stages of development. PSR/PR, final plans. and standard special provisions shall be signed by a Civil Engineer registered in the State of California. . 3. To permit STATE to monitor and participate in the selection of personnel who will prepare the PS&E, provide the right of way engineering services, and perform right of way activities. CITY agrees to any request by STATE to discontinue the services of any personnel considered by STATE to be unqualified on the basis of credentials, professional expertise, failure to perform in accordance with scope of work and/or other pertinent criteria. 4. Personnel who prepare the PS&E and right of way maps shall be available to STATE, at no cost to STATE, through completion of construction of PROJECT to discuss problems which may arise during construction and/or to make design revisions for contract change orders. 5. To not to use funds from any Federal -aid program for design•or acquisition of right of way for PROJECT. 6. To make written application to STATE for necessary encroachment permits authorizing entry onto STATE's right of way to perform surveying and other investigative activities required for preparation of the PSR/PR, ED and/or PS&E. If CITY uses consultants rather than its own staff to perform required work, the consultants will also be required to obtain an encroachment permit. 7. To identify and locate all utility facilities within the PROJECT area as part of its PROJECT design responsibility. All utility facilities that have conflict with PROJECT and can not be relocated or removed in advance of construction shall be identified on the PS&E for PROJECT. 8. To identify and locate all high and low risk underground facilities within the PROJECT area and to protect or otherwise provide for such facilities, all in accordance with STATE's "Manual on High and Low Risk Underground Facilities Within Highway Right of Way". CITY hereby 0) District Agreement 12-373 acknowledges receipt of STATE's "Manual on High and Low Risk Underground Facilities Within Highway Right of Way" 9. If any existing public and/or private utility facilities conflict with PROJECT construction or Violate STATE's encroachment policy, CITY shall make all necessary arrangements with the owners of such facilities for their protection, relocation or removal in accordance with STATE policy and procedure for those facilities located within the limits of work providing for the improvement to the State highway and in accordance with CITY policy for those facilities located outside of the limits of work for the State highway. Total costs of such protection, relocation or removal shall be in accordance with STATE policies and procedures. 1A. To fiµrnish evidence to STATE, in a form acceptable to STATE, that arrangements have been made for the protection, relocation, or removal of all conflicting facilities within STATE's right of way and that such work will be completed prior to the award of the contract to construct PROJECT or as covered in the PS&E for said contract. This evidence shall include a reference to all required State highway encroachment permits. 11. CITY shall require the utility owner and/or its contractors performing the relocation work within STATE's right of way to obtain a STATE encroachment permit prior to the performance of said relocation work. 12. To perform all right of way activities, including all eminent domain activities, if necessary, at no cost to STATE, in accordance with procedures acceptable to STATE, and in compliance with all applicable State and Federal laws and regulations, subject to STATE oversight to insure that the completed work is acceptable for incorporation into the State highway right of way.. 13. To utilize the services of a qualified public agency in all right of way acquisition related matters in accordance with STATE procedures as contained in Right of Way Procedural Handbook, Volume 9. Whenever personnel other than personnel of a qualified public agency are utilized, administration of the personnel contract shall be performed by a qualified Right of Way person employed or retained by CITY. 3 District Agreement 12-373 14. To certify legal and physical control of right of way ready for construction and that all right of way were acquired in accordance with applicable State and Federal laws and regulations subject to review and concurrence by STATE prior to the advertisement for bids for construction of PROJECT. 15. To deliver to STATE legal title to the right of way, free and clear of all encumbrances detrimental to STATE's present and future uses not later than the date of acceptance by STATE of maintenance and operation of the highway facility. Acceptance of said title by STATE is subject to a review of a Policy of Title Insurance in STATE's name to be provided and paid for by CITY. A. Tn _e resjnonci_h1P, at CITY expense, for the investigation of potential hazardous waste material sites and/or hazardous waste/underground tanks within or outside of the existing State highway right of way that would impact PROJECT, as part of the responsibilities for the ED for PROJECT. 17. To be responsible, at no cost to STATE, for r.emediation of hazardous waste found on proposed State highway right of way to -be acquired for PROJECT. 18. To obtain at CITY expense, all necessary permits and/or agreements from appropriate regulatory agencies. All mitigation, monitoring and/or remedial actions required by said permit agencies shall constitute parts of the cost of PROJECT. SECTION U STATE AGREES: 1. To provide, at no cost to CITY, oversight of PROJECT and to provide prompt reviews and ap- provals, as appropriate, of submittals by CITY, and to cooperate in timely processing of PROJECT. I District Agreement 12-373 2. To provide, at no cost to CITY, oversight of all right of way activities undertaken by CITY, or its designee, pursuant to this Agreement. 3. Upon application by CITY, to issue, at no cost to CITY, upon proper application by CITY, an. encroachment permit to CITY authorizing entry onto the State highway right of way to perform survey and other investigative activities required for preparation of the PSR/PR, ED and/or PS&E. If CITY uses consultants rather than its own staff to perform required work, the consultants will also be required to obtain a separate encroachment permit. These permits will be issued at no cost upon proper application by the consultants. 4. To be responsible, at STATE expense, for the investigation of potential hazardous waste sites Within the. existing State highway right of way that would impact PROJECT. SECTION III IT IS MUTUALLY AGREED`. 1. All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature to STATE for the purposes of fulfilling STATE's obligations herein. 2. The parties hereto will carry out PROJECT in accordance with the Scope of Work, attached and made a part of this Agreement, which outlines the specific responsibilities of the parties hereto. The attached Scope of Work may in the future be modified in writing to reflect changes in the responsibilities of the respective parties. Such modifications shall.be concurred with by.CITY's Director of Public Works or other official designated by CITY and STATE's District Director for District 12 and become a part of this Agreement after execution by the respective officials of the parties. 3. The PSR/PR for PROJECT approved on April 21, 1999, by this reference, shall become part of this Agreement. 5 District Agreement 12-373 4. The basic design features shall comply with those addressed in the approved PSR/PR, unless modified as required for environmental clearance and approval of PROJECT. S. The design, right of way acquisition, and preparation. of environmental documents for PROJECT shall be performed in accordance with STATE standardsand practices current. as of the date of execution of this Agreement. Any exceptions to applicable design standards shall be approved by STATE via the processes outlined in STATE's Highway Design Manual and appropriate memorandums and design bulletins published by STATE. In the event that STATE proposes and/or requires a change in design standards, implementation of new or revised design standards shall be done in accordance with STATE's memorandum "Effective Date for _Implementing Revisions to Design Standards", dated February 8, 1991. STATE shall consult with CITY in a timely manner regarding effect of proposed and/or required changes on PROJECT. 6. CITY's share of all changes in development and construction costs associated with modifications to the basic design: features as described above shall be in the same. proportion as described in this Agreement, unless mutually agreed by STATE and CITY in a subsequent amendment to this Agreement. 7. Any hazardous material found within the area of PROJECT requiring remedy or remedial action, as defined in Division 20, Chapter 6.8 et seq. of the Health and Safety Code, or any cultural, paleontological, anthropological, or other protected resource requiring protection shall be the responsibility of CITY, at CITY's expense as part of the costs of PROJECT. Locations subject to remedy or remedial action and/or protection shall include, but not limited to, the identification, treatment, removal, packaging, transportation, storage, and disposal of such material. 8. CITY shall be responsible, at CITY's expense, for the development of the necessary remedy and/or remedial action plans and designs. Remedial actions proposed by CITY shall be preapproved by STATE and shall be performed in accordance with STATE's standards and practices and those standards mandated by the Federal and State regulatory agencies. no District Agreement 12-373 9. A separate Cooperative Agreement will be required to cover responsibilities and funding for the construction phase of PROJECT. 10. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in' third parties not parties to this Agreement or affect the legal liability of either party to the Agreement by imposing any standard of care with respect to the maintenance of State highways different from the standard of care imposed by law. 11. Neither STATE nor any officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction delegated to CITY under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, CITY shall fully defend, indemnify and save harmless the State of California, all officers and employees from all claims, suits or actions of every name, kind, and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority. or jurisdiction delegated to CITY under this Agreement, including directly, or indirectly, the "through -girder design of the PROJECT which provides solid side walls extending to a height of approximately 4 feet 6 inches (4'-6") above the walking deck. 12. Except for liability resulting directly or indirectly from the "through -girder" design of the PROJECT for which the CITY has indemnified STATE in Article 11 of Section III of this Agreement, neither CITY nor any officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. Except for liability resulting directly or indirectly from the "through -girder" design of the PROJECT for which the CITY has indemnified STATE in Article 11 of Section III of this Agreement, it is understood and agreed that, pursuant to Government Code Section 895.4, STATE shall fully defend, indemnify and save harmless CITY from all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done VA District Agreement 12-373 by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. 13. This Agreement may be terminated or provisions contained herein may be altered, changed, or amended by. mutual written consent of the parties hereto: 14. Except as otherwise provided in Article (13) above, this Agreement shall terminate upon completion and acceptance of the construction contract for PROJECT, or on December 31, 2003, whichever is earlier in time. IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized officers. STATE OF CALIFORNIA CITY OF HUIkTINGTO?JBEACH Department of Transportation 1� 1 JEFF MORALES BY: Director of Transportation Mayor Pro Tem %1.�.� Attest: BY GGz 4t, KENNETH G. NELSON City Clerk 7— 2-- 00 District Division Chief Design Approved as to Form and Procedure: Attom Department of Transportation Certified as to Form and Procedure: Accounting Administrator Certified as to Funds: ,� .. District Budget Manager Approved as to Form: T City Attorney N. District Agreement 12-373 SCOPE OF WORK This Scope of Work outlines the specific areas of responsib=lity for various project development activities for the proposed Ocean Grand Resort Pedestrian Overcrossing. , 1. CITY will be the Lead Agency and STATE will be a Responsible Agency for CEQA. CITY will prepare the Environmental Document (ED) to meet the requirements of CEQA. CITY will provide all data for and prepare drafts of the Project Study RepomTroject Report (PSR/PR). CITY will be responsible for the public hearing process. 2. CITY and STATE concur that the proposal is a Category 5 as defined in STATE's Project Development Procedures Manual. ------�----------"--------___ __ ---_ _-_-- .- ._ 3. CITY will submit drafts of environmental technical reports and individual sections of the draft environmental documents to STATE, as they are developed, for review and comment. Traffic . .. counts and projections to be used in the -various reports shall be supplied by STATE if : available, or by CITY. Existing traffic data shall be furnished by CITY. 4. STATE will review, monitor, and approve all project development reports, studies, and plans, and provide all necessary implementation activities up to but not including advertising of PROJECT. S. All phases of PROJECT, from inception through construction, whether done by CITY or STATE, will be developed in accordance with all policies, procedures, practices, and standards that STATE would normally follow. 6. Detailed steps in the project development process are attached to this Scope of Work. These Attachments are intended as a guide to STATE and CITY staff. V] District Agreement 12-373 ATTACHMENT 1 PLANND'G PHASE ACTIVITIES RESPONSIBU= STATE CITY I... ENVIRONMENTAL- ANALYSIS & DOCUMENT PREPARATION Establish Project Development Team (PDT) X X Approve PDT X Project Category Determination X :Prepare Preliminary Environmental Assessment X Identify Preliminary Alternatives and Costs X Prepare and Submit Environmental Studies and Reports X Review and Approve Environmental Studies and Reports X Prepare and Submit Draft Environmental Document (DED) X Review DED in District X 2. PROJECT GEOMETRICS DEVELOPMENT Prepare Existing Traffic Analysis X Prepare Future Traffic Volumes for Alternatives X Prepare Project Geometrics and Profiles X Prepare Layouts and Estimates for Alternatives X Prepare Operational Analysis for Alternatives X Review and Approve Project Geometrics and Operational Analysis X ---) 3. PROJECT APPROVAL Lead Agency for Environment Compliance Certifies ED in Accordance with its Procedures X X Prepare Project Study Report/Project Report (PSR/PR) X Finalize and Submit PSRIPR with Certified ED for Approval X Approve PSR/PR X . 10 District Agreement 12-373 ATTACHMENT 2 DESIGN PHASE ACTIVITIES RESPONSIBII.IFY STATE CITY PROJECT ACTnTTY 1. PRELLNIiNARY COORD12NATION Request I - Phase EA x Field Review of Site x x Provide Geometries x Approve Geometries x Obtain Surveys & Aerial Mapping x Obtain Copies of Assessor Maps and Other R/W Maps x Obtain Copies of As-Builts x Send Approved Geometrics to Local Agencies for Review x Revise Approved Geometrics if Required x -Approve Final Geometries ---- - - -- - - _ -- -- - ._ x- Determine Need for Permits from Other Agencies x x Request Permits Initial Hydraulics Discussion with District Staff Initial Electrical Design Discussion with District Staff Initial Traffic & Signing Discussion with District Staff Initial Landscape Design Discussion with District Staff . Plan Sheet Format Discussion = �•�� 2. ENGINEERING STUDIES AND REPORTS Prepare & Submit Materials Report & Typical Section Review and Approve Materials Report & Typical Section Prepare & Submit Landscaping Recommendation Review & Approve Landscaping Recommendation Prepare & Submit Hydraulic Design Studies Review & Approve Hydraulic Design Studies Prepare & Submit Bridge General Plan & Structure Type Selection Review & Approve Bridge General PIan & Structure Type Selection 3. R/W ACQUISITION & UTILITIES Request Utility Verification Request Preliminary Utility Relocation Plans from Utilities ' Prepare RIW Requirements Prepare RA V and Utility Relocation Cost Estimates Submit RAV Requirements & Utility Relocation Plans for Review Review and Comment on R/W Requirements Longitudinal Encroachment Review Longitudinal Encroachment Application to District Approve Longitudinal Encroachment Application Request Final Utility Relocation Plans Check Utility Relocation Plans ,..r� Submit Utility Relocation Plans for Approval x x x x x x x :. x x x x x x x x x x x X x x x x x X x x 11 District Agreement 12-373 Approve Utility Relocation Plans Submit Final RAW Requirements for Review & Approval Fence and Excess Land Review RIW Layout Review Approve R/W Requirements Obtain Title Reports : Complete Appraisals Review and Approve Appraisals for Setting Just Compensation Prepare Acquisition Documents Acquire R/W Open escrows and Make Payments Obtain Resolution of Necessity Perform Eminent Domain Proceedings Provide Displacee Relocation Services Prepare Relocation Payment Valuations Provide Displacee Relocation Payments Perform Property Management Activities - • - - - - - - - - - - Perform RAW Clearance Activities Prepare and Submit Certification of R/W Review and Approve Certification of R/W Transfer R/W to STATE - Approve & Record Title Transfer Documents Prepare R/NV Record Maps 0.11 01 ►iN : 4. PREPARATION OF PLANS, SPECIFICATIONS AND ESTLti1ATES Prepare and Submit Preliminary Stage Construction Plans ...� Review Preliminary Stage Construction Plans X Calculate and Plot Geometrics Cross -Sections & Earthwork Quantities Calculation Prepare and Submit BEES Estimate Put Estimate in BEES X Local Review of Preliminary Drainage Plans and Sanitary Sewer and Adjustment Details Prepare & Submit Preliminary Drainage Plans Review Preliminary Drainage Plans X Prepare Traffic Striping and Delineation Plans & Submit for Review Review Traffic Striping and Roadside Delineation Plans '& X Prepare Submit Landscaping and/or Erosion'Control Plans Review Landscaping and/or Erosion Control Plans X Prepare & Submit Preliminary Electrical Plans Review Preliminary Electrical Plans X Prepare & Submit Preliminary Signing Plans Review Preliminary Signing Plans X Quantity Calculations Safety Review X Prepare Specifications Prepare & Submit Checked Structure Plans Review & Approve Checked Structure Plans X Prepare Final Contract Plans X X' X X X X X X X X X X --X--- X X X X X X X X X X X X X X X X X X X 12 Prepare Lane Closure Requirements Review and Approve Lane Closure Requirements ..� Prepare & Submit Striping Plan Review & Approve Striping Plan Prepare Final Estimate Prepare & Submit Draft PS&E ' = . Review Draft PS&E Finalize & Submit PS&E to District moo) 1 District Agreement 12-373 X X X X X X . X. X 13 5 12-ORA-1 KP 38.78 Ocean Grand Resort Pedestrian 0:153*55 Overcrossing (POC) Bridge 12221-01350K District Agreement No. 12-375 COOPERATIVE AGREEMENT This AGREEMENT, entered into on A P r:l 3 2 ° a , between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as. "STATE", and CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California, referred to herein as "CITY" 4 District Agreement - 12-3 75 i RECITALS 1. STATE and CITY, pursuant to Streets and Highwa_rs Code Section 130, are authorized to enter into a Cooperative Agreement for improvements on the State highway system within CITY. 2. CITY desires improvements on the State highway system consisting of construction of the Ocean Grand Resort Pedestrian Overcrossing (POC) on Route 1 at 0.41 km north of Route 39, and is willing to fund one hundred percent (100%) of all capital outlay and staffing costs, except that costs of STATE's oversight of construction activities will be borne by STATE. The portions of the POC which comprise the bridge span, abutments, and all appurtenances and utilities within and connected to the bridge and/or abutments, but not the stairs, landing and elevator tower, are referred to herein as "PROJECT". 3. The POC will be constructed with the bridge abutments outside of existing STATE's right of way, and a clear span over STATE's existing right of way. it. CITY desires to prepare the contract documents and administer the construction contract for PROJECT in order to bring about the earliest possible completion of PROJECT. �. STATE is agreeable to CITY's proposal to prepare the contract documents and administer the construction contract for PROJECT. ti. The parties hereto intend to define herein the terns and conditions under which PROJECT is to be constructed, financed, and maintained. 7. Project development responsibilities for PROJECT were covered in a prior Cooperative Agreement executed by STATE and CITY oJi ti Zac c (District Agreement No. 12- 73, Document No. tL 85t). I District Agreement 12-375 I SEMON I CITY AGREES: I. To administer the construction contract for PROJECT in accordance with applicable requirements of the Local Agency Public Constructian Act and the California Labor Code, including its prevailing wage provisions. Workers employed in the performance of work contracted for by CITY, and/or performed under encroachment permit, are covered by provisions of the Labor Code in the same manner as are workers employed by STATE's contractors. CITY shall obtain applicable wage rates from the State Department of Industrial Relations and shall adhere to the applicable_provisions.of_the State Labor_.__.__ Code. Violations shall be reported to the State Department of Industrial Relations. 2. To apply for necessary encroachment permits for req:iired work within State highway right of way, in accordance with STATE's standard permit procedures, as more specifically defined in Articles (2), (3), (4), (5) and (f) of Section III of this Agreement. 3. In recognition that PROJECT construction work done on STATE property will not be directly funded and paid by STATE, for the purpose of protecting stop notice claimants and the interests of STATE relative to successful PROJECT completion, CITY agrees to require the construction contractor to furnish both a payment and performance bond in CITY name, with both bonds complying with the requirements set forth in Section 3-1.02 of STATE's current Standard Specifications, prior to performing any PROJECT construction work. CITY shall defend, indemnify and hold harmless STATE, its officers and employees from all PROJECT construction -related claims by contractors and all claimants. 4. To construct PROJECT in accordance with plans and specifications of CITY to the satisfaction of and subject to the approval of STATE. 2 District Agreement ' 12-375 5. To ensure that contract Administration procedures shall conform to the requirements set forth in STATE's Construction Manual, Local Assistance Procedures Manual and the Encroachment Permit for construction of PROJECT. 6. To ensure that construction within the existing or ultimate STATE highway right of way shall comply with the requirements in STATE's Standard Specifications and PROJECT Special Provisions, and in conformance with methods and practices specified in STATE's Construction Manual. 7. If CITY uses own staff to perform surveys, to ensur-- that such surveys shall conform to the_methods, procedures, and requirements of STATE's Surveys Manual and STATE's Staking Information Booklet. 8. To ensure that material testing and quality control shall conform to the State Construction Manual and the State Material Testing Manual, and be performed, at CITY expense, by a certified material tester acceptable to STATE. Indep_ndent assurance testing, specialty testing, and off -site source. inspection and testing shall be performed by STATE, at no . cost to CITY except as noted herein. CITY shall reimburse STATE for any additional travel expenses incurred by STATE for off -site inspection and testing performed by STATE which is more than 300 airline miles from both Sacramento and Los Angeles. Approval of the type of asphalt and concrete plants shall be by STATE, at STATE expense. 9. To furnish, at CITY expense and subject to approval of STATE, a field site representative who is a licensed Civil Engineer in the State of California, to perform the functions of a Resident Engineer. If the PROJECT plans and specifications were prepared by a private engineering company, the Resident Engineer shall not be an employee of that company. The Resident Engineer shall also be independent of the construction contractor. 10. To be responsible, at CITY expense, for conducting Initial Site Assessment (ISA), Site Investigation (SI), and remediation, of all potential hazardous waste sites and/or 3 District Agreement 12-375 hazardous material/underground tanks discovered during the construction of PROJECT outside of the existing State highway right of way. 11. To pay one hundred percent (100%) of the: actual costs of construction required for satisfactory completion of PROJECT, including changes pursuant to contract change orders concurred with by the STATE representative, claims by CITY's contractor(s), and any "State -furnished material". 12. At CITY expense, to furnish qualified support staff, subject to approval of STATE, to assist the Resident Engineer in, but not limited to, construction surveys, soils and foundation tests, measurement and computation of quantities, testing of construction materials, checking shop drawings, preparation of estimates and reports, preparation of As -Built drawings, and other inspection and staff services necessary to assure that the construction is being performed in accordance with the plans and specifications. Said qualified support staff shall be independent of the design engineering company and construction contractor, except that the PROJECT designer may check the shop drawings, conduct soils foundation tests, test construction materials, and perform construction surveys. 13. To make progress payments to the contractor and pay all costs for required staff services as described in Articles (9), and (12) of this Section 1. The STATE representative shall review all contract progress pay schedules. STATE does not assume responsibility for accuracy of itemization on progress pay schedules. 14. Within sixty (60) days following the completion and acceptance of the PROJECT construction contract, to furnish STATE a complete set of acceptable full-sized film positive reproducible As -Built plans and all contract records, including survey documents and microfilm copy of all structure plans. I5. Upon completion of work under this Agreement, to assume maintenance and the expense thereof for any part of PROJECT Iocated outside of current STATE highway right of way 4 District Agreement 12-375 until acceptance of any such part of PROJECT into the STATE highway system by STATE, approval by the Federal Highway Administration, if required, and conveyance of acceptable title to STATE. 16. If CITY terminates PROJECT prior to completion of the construction contract for PROJECT, STATE may require CITY, at CITY expense, to return right of way to its original condition or to a condition of acceptable permanent operation. If CITY fails to do so, STATE reserves the right to finish PROJECT or place PROJECT in satisfactory permanent operation condition. STATE will bill CITY for all actual expenses incurred and CITY agrees to pay said expenses within thirty (30) days or STATE, acting through _ the State Controller, may withhold an equal_ amount from future Apportionments -due CITY from the Highway User Tax Fund. 17. If cultural, archaeological, paleontological or. other protected materials are encountered during construction of PROJECT, CITY shall stop work in that area until a qualified professional can evaluate the nature and significance of the find and a plan is approved Mw/ for the removal or protection of that material. 18. If any unforeseen potential hazardous material or con-aminated sites are encountered daring construction of PROJECT; CITY shall confer with appropriate professionals and regulatory agencies on a course of action. CITY may be required to stop work until the nature of the find can be evaluated and until a remedy or remedial action plan is prepared and approved. The costs for any required remedy or remedial action shall be covered as a cost of PROJECT contemplated by this Agreement. 19. To be responsible, at CITY expense, for the control and maintenance of the elevator tower, landing and stairs. F District Agreement 12-375 SECTION 11 STATE AGREES: 1. To issue at no cost to CITY and CI TY's contractor, upon proper application by CITY and by CTTY's contractor, the necessary encroachment permits for required work within State highway right of way, as more specifically defined in Articles (2), (3), (4), (5) and (6) of Section III of this Agreement. 2. To provide, at no cost to CITY, a qualified STATE representative who shall have authority to accept or reject work and materials or to order any actions needed for public _ _safety or the preservation of property and to assure compliance with all provisions of the. encroachment permits) issued to CITY and CITY's contractor. 3. To provide, at CITY expense, any "State -furnished material" as shown on the plans for PROJECT and as provided in the Special Provisions for PROJECT. 4. To be responsible, at STATE expense, for structural integrity and roadway safety, inspections for the entire bridge portion of the POC located within the STATE highway right of way, including the bridge span, abutments, and other structural components of the POC, and to prepare a Bridge Report summarizing maintenance activities for the PROJECT. SECTION III IT IS MUTUALLY AGREED: 1. All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature and the allocation of resources by the California Transportation Commission. M District Agreement 12-375 2. Construction by CITY of improvements referred to herein which lie within STATE highway right of way or affect STATE facilities, shall not be commenced until CITY's �I original contract plans involving such work and plan for utility relocations have been reviewed and approved by signature of STATE's District Director of Transportation, or the District Director's delegated agent, and until an encroachment permit to CITY authorizing such work has been issued by STATE. 3. CITY shall obtain aforesaid encroachment permit through the office of State District Pen -nit Engineer and CITY's application shall be accompanied by ten (10) sets of reduced construction plans of aforesaid STATE approved contract plans, and ten (10) sets of specifications. Receipt by CITY of the approved_ encroachment permit shall constitute CITY's authorization from STATE to proceed with work to be performed by CITY or CITY's representatives within proposed STATE right of way or which affects STATE facilities, pursuant to work covered by this Agreement. CITY's authorization to proceed with said work shall be contingent upon CITY's compliance with all provisions set forth in this Agreement and said encroachment permit. 4. CITY's construction contractor shall also be required to obtain an encroachment permit from STATE prior to commencing any work within STATE right of way or which affects STATE facilities. The application by CITY's contractor for said encroachment permit shall be made through the office of State District Permit Engineer and shall include proof that said contractor has payment and performance surety bonds covering construction of PROJECT. 5. . CITY shall provide a right of way certification prior to the granting of said encroachment permit by STATE, to certify that Iegal and physical control of right of way were acquired in accordance with applicable State and Federal laws and regulations. E. -CITY shall not begin construction of PROJECT until after an encroachment permit has been issued to CITY by STATE. 7 District Agreement 12-375 7. CITY's construction contractor shall maintain in force, until completion and acceptance of the PROJECT construction contract, a policy of Contractual Liability Insurance, including coverage of Bodily Injury Liability and Property Damage Liability in accordance with Section 7-1.12 of State Standard Specifications. Such policy shall contain an additional insured endorsement naming STATE, its officers, agents and employees as additional insureds. Coverage shall be evidenced by a Certificate of Insurance in a form satisfactory to STATE which shall be delivered to STATE before the issuance of an encroachment permit to CITY's contractor. S. Prior to award of the construction contract for PROJECT, CITY may terminate this Agreement by. written notice. 9. In construction of said PROJECT, representatives of CITY and STATE will cooperate and consult, and all work pursuant to PROJECT shall be accomplished according to approved plans, specifications and applicable STATE standards. Satisfaction of these requirements shall be verified by the STATE representative. The STATE representative is authorized to enter CITY's property during construction for the purpose of monitoring' and coordinating construction activities. 10. Changes to PROJECT plans and specifications shall be implemented by contract change orders reviewed and concurred with by the STATE representative. All changes affecting public safety or public convenience, all design and specification changes, and all major changes as defined in STATE's Construction Manual shall be approved by STATE in advance of performing the work. Unless otherwise directed by the STATE representative, changes authorized as provided herein will not require an encroachment permit rider. All changes shall be shown'on the As -Built plans referred to in Section 1, Article (14) of this Agreement. 11. CITY shall provide a claims process acceptable to STATE and shall process any and all claims through CITY's claim process. The STATE representative will be made available to CITY to provide advice and technical input in any claim process. E District Agreement 12-375 12. If any existing public and/or private utility facilities conflict with PROJECT construction I or violate STATE's encroachment policy, CITY shall make all necessary *A6001 arrangements with the owners of such facilities for their protection, relocation or removal in accordance with STATE policy and procedure for those facilities located within the limits of work for the PROJECT and in accordance with CITY policy for those facilities located outside of the limits of PROJECT. Total costs of such protection, relocation or removal shall be determined in accordance with STATE policy and procedure. CITY shall require any utility owner and/or its contractors performing relocation work in STATE highway right of way to obtain a STATE encroachment permit prior to the performance of said relocation work. Any_relocated or new facilities shall be correctly shown and identified on the As -Built plans referred to in Section 1, Article (14) of this Agreement. 13. Pursuant to the authority contained in Section 591 of the Vehicle Code, STATE has determined that within such areas as are within the Iimits of PROJECT and are open to Public traffic, CITY shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CITY shall take all necessary precautions for safe operation of CITY's vehicles, the construction contractor's equipment and vehicles and/or vehicles of personnel retained by CITY and for the protection of the traveling public from injury and damage from such vehicles or equipment. 14. Upon completion and acceptance of the PROJECT construction contract by CITY to the satisfaction of the STATE representative and subsequent to the execution of a maintenance agreement, STATE will accept control and maintain, at its own cost and expense, those portions of PROJECT lying within STATE highway right of way. 15. STATE will maintain, at STATE expense, the portions of POC located within STATE highway right of way, including the structural side girders, abutments and the entire structure below the top of the concrete deck surface, exclusive of any surface treatment thereon. CITY will maintain, at CITY expense, the top of the concrete deck surface, V1 District Agreement 12-375 together with any surface treatment thereon, and all other portions of the structure above 1 the concrete deck surface, and shall perform such other work as may be necessary to ensure an impervious and otherwise suitable surface. CITY will also maintain all lighting %00) and traffic service facilities provided for the benefit or control of pedestrian traffic, and will be responsible for all cleaning and painting as required to keep the structure free of debris and graffiti. 16. CITY will accept control and maintain; at its own cost and expense, the portions of POC lying outside STATE highway right of way. CITY will maintain, at CITY expense, the landing, stairs and elevator tower portion of the POC. 17. Upon completion of all work under this Agreement, ownership wid title to materials, equipment and appurtenances installed within STATE highway right of way will au- tomatically be vested in STATE, and materials, equipment and appurtenances installed outside of STATE highway right of way will automatically be vested in CITY. No further agreement will be necessary to transfer ownership as hereinabove stated. 18. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement or affect the legal liability of either party to the Agreement by imposing any standard of care with respect to the maintenance of State highways different from the standard of care imposed by law. 19. Neither STATE nor any officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction delegated to CITY under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895A, CITY shall fully defend, indemnify and save harmless the State of California, all officers and employees from all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction delegated to CITY under this 10 District Agreement 12-375 Agreement, including directly, or indirectly, the "through -girder" design of the PROJECT which provides solid side walls extending to a height of approximately 4 feet r `"1 6 inches (4'-6" 1 above the walking deck. 20. Except for liability resulting directly or indirectly from the "through -girder" design of the PROJECT for which CITY has indemnified STATE in Section III, Article (19), neither CITY nor any officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. Except for liability resulting directly or indirectly from the "through -girder" design of the PROJECT for which CITY has indemnified STATE in Section III, Article (19), it is understood and agreed that, pursuant to Government Code Section 895.4, STATE shall fully defend, indemnify and save harmless CITY from all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. 21. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 22. Those portions of this Agreement pertaining to the construction of PROJECT shall terminate upon completion and acceptance of the construction contract for PROJECT by CITY with concurrence of STATE, or on December 31, 2005, whichever is earlier in time; however, the ownership, operation, maintenance, liability, and claims clauses shall remain in effect until terminated or modified in writing by mutual agreement. 11 District Agreement 12-375 IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized officers. STATE OF CALIFORNIA Department of Transportation JEIT MORALES Director of Transportation BY: n-fko /wt , H G. NELSON District Division Chief Design Approved as to Form and Procedure: Atto y DeparNment of Transportation Certified as to Form and Procedure: C Accounting Administrator rtified as to Funds: D1strict Budget MaWer CITY OF HUNTINGTON BEACH 0.153.15.15 Attest: G _Y x , City Clerk 3 IV of Approved as to Form: a, a, dltz�- - L �Ct Lttorney p t {Z to f 01 ar- Reviewed and Approved: City A ministrator Ini ' end Approved: Director of Public Works 12 �-1 t.JJG.v A•IAMENANCE AGREEINIENT THIS AGREEMENT, (the "Agreement") is made and entered into in duplicate, effective this 19 , _ day of N o v e _m b .s r , 2002, by and between the State of California, acting through the Department of Transportation, hereinafter referred to as "STATE," and the- my c' HUNTlNGTON BEACH, a municipal corporation of the State of California, hereinafter referred to as "CITY ". VViI :,IES SETH: WHYS, on April 30, 2001, a Cooperative Agreement (District Agreement No. 12-375 Document No. 015955) was executed between CITY and STATE wherein CITY agreed to enter into a Maintenance Agreement to clarify the division of maintenance responsibility as to the Ocean Grand Resort Pedestrian Overcrossing, hereafter referred to as the `IOC", on Route 1, .-.-.0.41 km north of Route 39, location ORA-001-38.78 and Structure No. 55-1D45.-- ---- — - ---- - - A sketch of the POC maintenance limits is attached hereto as Exhibit "A" and is incorporated herein by this reference. NOW THEREFORE, IT IS AGREED: �..� A. Within the limits of the STATE right of way, STATE will maintain, at STATE's own cost and expense, the side girders, abutments and the entire structure of the POC below the top of the concrete deck surface, exclusive of any surface treatment thereon. B. CHTY will accept control and maintain, at CITY expense, the portions of the POC lying outside the STATE right of way, including, but not limited to, the landing, stairs and elevator tower portion of the POC. In addition, CITY will maintain, at CI1'Y expense, the top of the concrete deck surface, together with any surface treatment thereon, and all other portions of the structure above the concrete deck surface, and shall perform such other work as may be necessary to ensure an impervious and otherwise suitable surface. CITY will also maintain all lighting and traffic service facilities provided for the benefit or control of pedestrian traffic, and will be responsible for all cleaning and painting as required to keep the entire structure free of debris and graffiti. When a planned future improvement has been constructed andlor a minor revision has been effected to the POC, which affects the parties' division of maintenance responsibility for the POC as described herein, STATE will provide an amendment, which will be made a part of this Agreement when executed by both parties. J) &- % e A.ti V D. It is understood and agreed that neithe, CITY nor any official, officer or employee ✓ thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work,. authority or jurisdiction delegated to STATE under this Agreement. it is understood and agreed that, pursuant to Government Code section $95.4, STATE shall defend, indemnify and save harniless CITY and all of its officials, officers and employees (but no indemnification and save. harmless or defense is owed by STATE to MAYER or PCI) from all claims, suits or actions of every name, kind and description brought for or on account of injuries to or death of any person or damage to property resulting from anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. 4_ EFFECTNEDATE------------_-------------_-___. This Agreement shall be effective upon the date appearing on its face. 3 Glass Block Lantern Elevator Tower, Proposed Sidewalk Typ Conc Wlatt--,____r Typ Conc t� Lantern Post ,415 (Measured aloe Bridge) 35•662 Clear Span m `" Top of Conc Chain Unk m Deco. Top of Conc Girder Railing v Prec< o Surface Overlay o Moulr . Ex Jt Elev 9.288mro `' EC ; BC Bottom of Girder u Wi El ev 7.152m ' EI ev 7.152m c Exist Rdwy P.C:. Hwy ti /r .. %` a5 __...-...___; _-_.__,.-_' _ 0 a:— C :.a.a">!' _I__...Cs - :.cs.szrr�ss-3.zrr c^-�'-- ------------ Datum Elev='O.O m LoT'n-_ --- ._---L•-- t.--7r -err Abutment ^ ir-a-ir-rr-r/-ir/ /. .. Typ // /. /, .. . H u 10• n a i~ ` m 1020 10+40 Exist 1.370mpl! /N' " Sewer •17 le // - i n 'Abut 1 �� AN " > � h ,� SOUTH ELEVATION . Abut 2 H H /1 /. . C ! ,. . w .q. 4- n n JV A$- � 1:150 . P27 Sheer i/5r'!� _0.38O m PC/PS piles ;Driven Pile •Typ Existing Right or Way 30.480 m (100 1`0 2.441 3.66= 3.66= 3.66= 3.81= 3.66T. t 3.661 i 3.661 2.44t I I 1 IMedian' i I 1 SW I I Exist 1.370mg: V Sewer Line i • Railing, ryp--.,,- A�`� �/ gerl>�t_ •• Trench Drain, Typ---' See "Architectural Plans" I I I I �+'15+730.860 (C PC" ! ' 10,30.000 C Bridge i ' 2.440 (� I I I U e G I 1 II 2.440 II II i I Hot N LIMITS d �z OF t I._ ' _ 1 I i 1:12 Down 10.20 Roll 10�40 _ •• Rolf � 1.12 Down II I I Ultimate (Pu4ure) CALTRANS BRIDGE MAINTENANCE t Q . I � Soo 2.4 3.600 13.6D0 3.604 3.600 1 3.600 1-3.600 3.600 �.J2.5001 t ry yRaring. Typ 1R� Sirucrur Approac t-1 N 7•S6'O6" E 6.' m Dra) EXHIBIT ATTACHMENT #4 ATTACHMENT 6_ Waive City Standard indemnification requirements and accept Sections 3C and 31), including City's indemnification and defense obligations of the State as set forth in Section 3C of the Maintenance Agreement. G:1Eng\Elliott\Hyatt\1IF - Attachment in I \I STATI'or t t XnM - BUSINESS, TWISPORTATICN AND HOl1SING AGENCY GRAY DAVIS. Covw"w DF TRANSPORTATION SOU'r. "F a RI,71 OP WAY REGION Gfa'i:ic! 12 ^JW Field Office _.•, ' .• y ... 14 tve, quite 380 Irvin-:, Calif orla 92.612-8894 (94a) 724-2411/724-2622 Gary Dysart Vice President Psornas 3187 Red Hill Avenue, Suite 250 Costa Mesa, CA 92626 Subject: Recorded easement deeds - Dear Mr. Dysart: January 21, '2003 - 12-ORA-1-24.1 Pedestrian Overcrossing Bridge of Pack Coast Highway The State of California, Department of Transportation has approved the easement deeds for parcels 102235- :1 and 102236-1 which granted easements to the State of California for the purpose of a pedestrian overpass' -and improvements and facilities appurtenant the-eto for the above project. -Due to the County Recorder's Office processing time, it may take up to three (3) weeks to receive the original recorded deeds. The deeds will be forwarded to you at that time. In the meantime, a conformed copy of each deed is provided. Pilrsuant to the City of Huntington Beach, City Clerk's Office request dated December 6, 2002, two copies of said easements are also being mailed in the -returned envelopes provided by the Clerk's office. c-__.e VV:: ha•.e a:.y ;luastiolis regarding this matter, do not hesitate to contact me at (949) 724-2549. Sincerely, *K%eikman •� =� , Local Prog. ams, ltvine Office Southern Right of Way Region M ..J /e: Connie Brockway, City Clerk, City of Huntington Beach - Soudmn RJW Region Los Angela Field Office 21073 Pad&der, Suite 100 San Bernardino Field Office 801 South Grand Avenue Diamond Bar. CA 91763 464 W. 4* Street; 12' floor Lcs Angeles, CA 90011 Phone: (909) 468-1500 Fax (909) 46.4-ISDI Sea Bemardino. CA 92401.1400 Ph me: (213) $97.1161 F= (213) 897.1962 TDD: (800) 735-29,9 Phone: (909) M621 I F&C (909) 3836M Iflu�i rwnwur Not Compared with Or19. Recordng Requested by, City of Huntington Beach Vihen Recorded, Mail to: State of California D •ment of Transportation j12, Office of Right of Way k,.oAichalson Drive Irvine, CA 92612.8894 •Attn-'K. Dykman- R!W Local Progiams EASEMENT DEED Recorded in Official Records, County of Orange Torre Daly, Clerk -Recorder IIII"I�C�IIIII`II�IgiIII'illlilall1D1111111i11IaiNO FEE .200300004753103.11pm 0111 4103 ' • -, 116 23 E01 S 0.00 0.00 ' 0.00 '0.00 b.00 0.00 0.00 0.00 Space above this One for District County Route Post Number 12 ORA 1 KP38.7 102235-1 The .City of Huntington Beach GRANTS to the State df-Califomia'an EASEMENT for :the purpose :of .a pedestrian -lerpass and improvements and facilities appurtenant thereto upon, over -and across that certain real property in the 4 i `�.eeriy of Huntington Beach, County of Orange, State of California, described as follows: SEE EXHIBIT W ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE. SUBJECT TO ALL RIGHT HEREBY RESERVED BY THE CITY OF HUNTINGTON BEACH TO ACCESS THE EASEMENT AREA FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO PEDESTRIAN ACCESS AND LANDSCAPE MAINTENANCE, PROVIDED SUCH ACCESS SHALL NOT INTERFERE WITH THE RIGHT OF THE STATE OF CALIFORNIA TO MAINTAIN THE PEDESTRIAN OVERPASS AND IMPROVEMENTS AND FACILITIES DESCRIBED HEREIN. S CL Fa m o NC N CD a� G7 m x 01 a p B 3 co a r. Form RW 6.1(P) (Fievised ID199) Dated this,2�' day of 2002• ITY OF HUNTINGTON BEACH, Califomia Corporation Mayor ATTEST: City Clerk APPROVED AS TO FORM: 91 ( e-yCity Attorney 3 "EVIEWED AND APPROVED: Q__ C' Administrator INITIATE AND APPROVED; n Direc of Public Works Form RW 6-1(P) (Revised 10/99) STATE OF CALIFORNIA onmty of 0,94n (r f - PERSONAL ACKNOWLEDGMENT 55 . CA rm A/r c� n NS M A-L day of ^ �.,� V E 20 a2L__ , before me. .tle. �s e' .WA7U L. r ��% !�✓�%t. Name, Tide of Officer-EG.. Vane Doe, Notary Pubic' pe'sona�yappeared__ f7� �C�Jfi\ fi�nc� _Cc3iihif ��[�CuJ��/ Name(s) of Signer(s) C(persoraCy known to me 0 proved to me on the basis of satisfactory evidence to be the persofQ whose rtameG_-<,__ is subscribed to the within instrument and edmowtedged to me that helshe�51zecuted the aarne in ;UQi„ hislherltheIr autrart ad cMmcntyVes), and that by „-V�,i MO.erltheir signa!rre(s) on the tnstrument the person(sj� or the entity LFCp1 t+eha" Of WtL'Ct1 the pers;,rf(S�acted, execrtad the Instrument �-'. KELLY t W!'NESS ny hand and officlal seat. Commaon 11372E99 I Notary Public - Carifornia Oran -we County -- ----- - ------A--------__------------�-- illp W- (No ary u s signature us and r sald County and State) (for notary mW or swM) THIS IS TO.CERTIFY, That the State of Califomia, acting.by and through the. Department of Transportation (puim suant to Government Code Section' 27281); hereby accepts for public purposes the`real property described In t5e within deed and consents to the recordation thereof. IWITNESS WHEREOF, i have hereunto set my hand �.[�,�[�r� Director of Transportation By Momey In F t Form FW 6-1(P) (Revised IM9) • EXHIBIT ` A" LEGAL DESCRIPTION PARCEL 102235-1 PAGE I OF I ti. THE LAND DESCRIBED HERE IN IS A PORTION 0= SECTION 14, TOWNSHIP 6 SOUTH,' RANGE i 1 WEST, IN THE RANCHO LAS BOLSAS, AS PER Nt P RECORDED N BOOK 51, PAGE 14 OF MISCELLANEOUS MAPS, RECORDS OF THE COUNTY OF ORANGE, LOCATED N THE CITY OF HUNTNGTON BEACH, COUNTY OF ORANGE, STATE OF. CALIFORNIA, DESCRIBED AS FOLLOWS: BEGINNING AT THE INTERSECTION OF THE CONSTRUCTION CENTERLINE OF PACIFIC COAST HIGHWAY,100 FEET WIDE, AND TWIN DOLPHIN DRIVE, 86 FEET WIDE, AS SHOWN ON THE MAP OF TRACT NO. 15535, FILED N BOOK 790, PAGES 44 - --THROUGH 50, hSCELLANEOUS MAPS, RECORDS OF THE COUNTY OF ORANGE, THENCE ALONG THE CONSTRUCTION CENTERLINE OF SAID PACIFIC COAST ------ - HIGHWAY, ACCORDING TO SAID MAP, SOUTH 52004-15" EAST 506.54 FEET; THENCE PERPENDICULAR TO SAID CENTERLINE SOUTH 37055'45" WEST 50.00 FEET TO THE SOUHTWESTERLY RIGHT-OF-WAY OF PACIFIC COAST HIGHWAY AND THE TRUE PONE OF BEGINNING; THENCE CONTINUING SOUTH 37055'45" WEST 16.84 FEET; -THENCE SOUTH 52004'15" EAST 2435 FEET; THENCE NORTH. 8 I"06'53"EAST I95 FEET; THENCE SOUTH 52004'1 S` EAST 7.32 FEET; THENCE. NORTH 3711554.5" EAST I5.42 FEET TO SAID SOUTHWESTERLY RIGHT-OF-WAY; THENCE ALONG SAID ...•� SOUTHINVESTERLY RIGHT-OF-WAY NORTH 52204'15" WEST 33.00 FEET TO THE TRUE POINT OF BEGINNING; CONTAINS 544 SQUARE FEET OR 0.012 ACRES OF LAND, MORE OR LESS. SUBJECT TO ALL COVENANTS, RIGHTS, RIGHTS-OF-NVAY AND EASEMENTS OF RECORD, IF ANY. . AS SHOWN ON EXHIBIT "B", ATTACHED HERETO, .AND BY THIS REFERENCE MADE A PART HEREOF. DATED THIS .�d DAY OF L�--Tee`-- -f , 2002. .�A W'D SU vc`p ROY�,,��E�� EXP. 12/31/02 D'ONALD ROY CURRY, L.S. 78_F6- - sflF F C78A`1Eo��` EXP. 12/31/02 MA a• ►./. PA.B N. 1 1 . = ran 9 25' sa• ' 100' Root EXHIBIT 'E' PLAT LoT I TRA G7" 15535 MM3 790144-50 EASE-NT FOR PEDEMIAN OVVFAw FER VZT. M 20000291160 REC. 6-02-M DA x T TP.O.B. ASSESSOR'S NO. 02.4-281 02 SEE \ • ,.DETAIL 1 %Av- 4 T.POR 1*6. �Rp DETAIL 1 ti I0' 20' 40''� GRAPHIC 'SCALE GRAPHIC SCALE LfW TAPLF CIAE kFAWAC DISTMCE � 1 'S5145 ir sa. oo I C 2 w f'CS''S.3' 1 95' L3 2' 4' 1 . 7 PARCEL 1022351 EASEMENT 0.012 ACRES FUSCOE aZ;I V?IW SAN DIEGO INC. 6390 CR-c7 WZCH DR. STE. 170 SAN DIEGO. CA 92122 Pf; M (SM) 554-1500 VILTHERP' R16011 (0- WAY RF.t ION 13is c; '12 Rr'VV Fie)t1 of -ce ` - Irvine., Cellfumia V.612.8894 Phone: (gas) FAX: {�:�,'i •(''•.t4�fc,, •;; .,;•.._ _ Gary Vyza e. Vice P ,it-i� ant l-sor^a: 3187 R&1 dill Avei.ue, Suite 250 CA e2s2c- Subject: R=orded easement deeds Dear Mr.'`;,r*: 2003 12-ORA-1-24.1 Pedestrian Overcrossing Bridge of Pacific Coast Highway The State al' California, Department of Transportation has approved the easement deeds for parcels 102235- 1 and 10223E-1 which granted easements to the State of California for the purpose of a pedestrian overpass &hd improvements and facilities appurtenant thereto for the above project' Due to the County Recorder's Office processing time; it may take up to three (3) weeks to receive the original recorded deeds. The deeds will be forwarded to you at that time. In the meantime, a conformed copy of each deed is provided. Pursuant to the City of Huntington Beach, City Clerk's Office request dated December 6, 2002, two copies of said easements are also being mailed in the returned envelopes provided any the Clerk's office. Should you have any questions regarding this matter, `L nct h-es„sta VJ G-C.—%tudl.0 ime cf -(54S) I724-L54,9. Sincerely, �} i Ke t Dykt:aan . Local. Programs; Irvine Office Southern Right of Way Region /c: Connie Brockway, City Clerk, City of Huntington Beach Southern R/W Region Los Angeles Field Office 21073 Pathfinder, Suite 100 San Bernardino Field Office 901 South Grand Avenue Diamond Bar, CA 91765 464 W. 4th Street, 12ei floor Los Angeles, CA 90017 Phone: (909) 468-1500 Fax (909) 468-1501 San Bernardino, CA 92401-1400 Phone: (213) 897-1861 Fa3c (213) 897-1962 TDD: (800) 735-2929 Phone: (909) 383.6211 Fax: (909) 383-6877 Recording Requested by, Zft{ oi.i;a,,tington Beach When Recorded, Mail to: State of California Recorded in Official Records, County of Orange Department of Transportation Tout Daly, Clerk -Recorder C' 12, Office of Right of Way Nll!(lull{l(IilllllllllRll!lIll!lllllllllllllllllNII1111lIIIIIIINO FEE chelson Drive Irv.. - , CA 92612-8894 2003000047530 03:11 pm 01114103 116 23 E01 5 Attn: K. Dykman i 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 R/W local Programs EASEMENT DEED District Coun Route Post Number 12 ORA 1 KP38.7 102236-1 The City of Huntington Beach GRANTS to the State of California an EASEMENT for 0 —« 0 (g N CD = � d3 a CD 0 CDX CD .° 0 B B CD n the purpose of a pedestrian overpass and improvements and facilities appurtenant thereto upon, over and across that certain real property in the City of Huntington Beach, County of Orange,. State of California, described as follows: EXHIBIT "A" ATTACHED HERETO AND INCORORATED HEREIN BY THIS REFERNCE. SUBJECT TO ALL RIGHT HEREBY RESERVED BY THE CITY OF HUNTINGTON BEACH TO ACCESS THE EASEMENT AREA FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO PEDESTRIAN ACCESS AND LANDSCAPE AND SLOPE MAINTENANCE, PROVIDED SUCH ACCESS SHALL NOT INTERFERE WITH THE RIGHT OF THE STATE OF CALIFORNIA TO MAINTAIN THE PEDESTRIAN OVERPASS AND IMPROVEMENTS AND FACILITIES DESCRIBED HEREIN AND TO ALL COVENANTS, RIGHTS, RIGHTS -OF -WAY AND EASEMENTS OF RECORD, INCLUDING, BUT NOT LIMITED TO, RIGHTS OF PEDESTRAIN ACCESS GRANTED TO THE CITY OF HUNTINGTON BEACH BY THAT CERTAIN EASEMENT DEED FOR PEDESTRIAN OVERPASS PURPOSES RECORDED ON JUNE 2, 2000, AS DOCUMENT NO. 20000291180 IN OFFICIAL RECORDS, COUNTY OF ORANGE. Form RW 6-1(P) (Revised 10199) ter, � 2002 Dated this�_day of �2 , CITY OF HUNTINGTON BEACH, t-- PITY Corporation Mayor ATTEST: c�lZ City Clerk APPROVED_AS TO -FORM: A i ! r. 3 City Attorney REVIEWED AND APPROVED: Cit dministrator INITIATE, ND APPROVED; j• Director oVdIfic Works Form RW 6-1(P) (Revised 10199) — STATE OF CALIFORNIA PERSONAL ACKNOWLEDGMENT SS - - County of i 9�, Q t �c.}1e�tJr r' tiis the o? 5 day of VQ JEM b9/' 200 Z , before me, !t, iOJ LiJJi 5 e /"( 7 i C �ll�-�a�� l�✓61�c , Name, Title of Officer-E. ., 'Jane Doe, Notary Public' personally appearedb�[ Name(s) of Signer(s) / personally known to me ❑ proved to me.on the basis of satisfactory evidence to be the person sj hose name si� w re ubscribed to the within instrument and acknowledged to me that helshe/they executed the same in ' his/her,their author -wed capacity(iss), and that by tj&ln his/her/their signature(s) on the Instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. KELLY LOUISE MANDIC j Cornmisslon # 1372899 L - - - - A Notary Public-Eallfomia-y - unty ` MY Comm. &ptesoSep ), 2006 (Notary PubliclAignature in and for said Coun and State) (far notary seal or stamp) THIS' IS TO. CERTIFY, That. the State of California,.. acting by and through the Department of Transportation . /^'suant to Government Code Section 27281), hereby accepts for public purposes the real property described ,e within deed and consents to the recordation thereof. IN WITNESS WHEREOF, I have her unto set my hand this i3� day of _� T , 20`Ol Director of Transonrtation E Form RW 6-1(P) (Revised 10/99) „r EXHIBIT "A" LEGAL DESCRIPTION 1 PARCEL 102236-1 PAGE 1 OF I THE LAND DESCRIBED HEREIN IS A PORTION OF LOT I OF THE MAP OF TRACT NO. 15535, FILED IN BOOK 790 PAGES 44 THROUGH 50, INCLUSIVE, OF MISCELLANEOUS MAPS, OFFICIAL RECORDS OF THE COUNTY OF ORANGE, LOCATED IN THE CITY OF HUNTENGTON BEACH, COUNTY OF ORAj!'GE, STATE OF.CALIFORNIA, DESCRIBED AS FO%LOWS: . BEGINNING AT THE INTERSECTION OF THE CONSTRUCTION CENTERLINE OF PACIFIC COAST HIGHWAY,100 FEET WIDE, AND TWIN DOLPHIN DRIVE, 86 FEET WIDE, AS SHOWN ON SAID MAP, THENCE ALONG THE CONSTRUCTION CENTERLINE OF PACIFIC COAST HIGHWAY, SOUTH _.52004'15" EAST 498.54 FEET; THENCE PERPENDICULAR TO SAID CENTERLINE NORTH 37055'45" EAST 50.00 FEET TO THE NORTHEASTERLY -RIGHT-OF-WAY__ _ OF PACIFIC COAST HIGHWAY AND THE TRUE POINT OF BEGINNING; THENCE CONTINUING NORTH 37055'45" EAST 43A I FEET; THENCE SOUTH 52"04'15" EAST 46.98 FEET; THENCE SOUTH 37°55'45" WEST 43.41 FEET, TO SAID NORTHEASTERLY RIGHT-OF-WAY; TII✓NCE ALONG SAID . . NORTHEASTERLY RIGHT-OF-WAY NORTH 52004'15" 'VEST 46.98 FEET TO : THE TRUE POINT OF -BEGINNING. _ CONTAINS 2039 SQ. FT., 0.047 ACRES MORE OR LESS SUBJECT TO ALL COVENANTS, RIGHTS, RIGHTS -OF -WAY AND EASEMENTS OF RECORD, IF ANY. ALL AS SHOWN ON EXHIBIT W ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. DATED THIS S� DAY OF 2002. . � LAKii SG OP. 12 f 3I j02 DONALD ROY CURRY, L.S. 7846 EXP. 12/31102 EXHIBIT 'B' PLAT LOT Try �vv�v ,c IVIB 790/PGS 44-50 , -40 F��IvIAINJ��7 PAr3 r r 1 TR 15535 JW3 7901PGS 44- 0 c/% ' LOT TR 15535 MMB 790144-50 LINE DATA \ , P.QB 0 50' 100' 200' 400' GRAPHIC SCALE LINE BEARING WSTANCE L1 N37°55'45"E 50.00' L2 N37'55'45"E 43.41' L3 S52°04'15"E 46.98' L4 S37°55'45"W 43.41' L5 N52'04'15"W 46.98' PARCEL 102236-1 EASEMENT 0.047 ACRES , ^q T.P.O B. ti ` \ i` �S FUSCOE ENGINEERING SAN DIEGO INC. 6390 GREENWICH DR. STE. 170 SAN DIEGO, CA 92122 PHONE (858) 554-1500 JOINT COMMUNITY FACILITIES AGREEMENT GRAND COAST RESORT CFD 2000-1, CITY OF HUNTINGTON BEACH Coop 1A-4-)7 0°5577 THIS AGREEMENT, ENTERED INTO as ofDecember 1, 2001; is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "STATE", and CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California, referred to herein as "CITY", and COMMUNITY FACILITIES DISTRICT NO.2000-1 of the CITY OF HUNTINGTON BEACH, a public entity formed pursuant to State law herein referred to as "CFD 2000-1 ", and PCH BEACH RESORT, LLC, a private developer herein referred to as "DEVELOPER". RECITALS 1. STATE and CITY have previously entered into that certain Cooperative Agreement designated as "District Agreement 12-375" regarding the construction and maintenance of the Ocean Grand Resort Pedestrian Overcrossing bridge on Route 1 at 0.41 km north ofRoute 39("POC"), such 4 x -- agreement being re ef�-to herein as the "Coopeiatrve Agreement" and whiohis-attachedt-hereto-as--- 'k Exhibit A. The portion of the POC which is comprised of the bridge span and abutments, and all appurtenances and utilities within same, which is more specifically delineated in the Cooperative Agreement and the plans approved by STATE for the POC, is referred to in the Cooperative Agreement and herein as the "'PROJECT." The Cooperative Agreement provides that upon completion of the PROJECT to STATE requirements, the PROJECT will become the property of STATE. 2. Prior to entering into the Cooperative Agreement, DEVELOPER petitioned CITY I I'' to form a community facilities district pursuant to the Mello -Roos Community Facilities Act of 1982, as amended, Section 53311 et seQ -of the Government Code of the State of California (referred to RVPL'iMAM575740 1 I herein as the "Act"), and Chapter 3.56 of the CITY's Municipal Code (referred to herein as the `..r "Municipal Code") to finance the purchase and construction of the public improvements comprising the POC. 3. CITY and DEVELOPER have entered into that certain Funding and Construction Agreement Relating to Community Facilities District No. 2000-1 dated as December 1, 200I ("Funding and Construction Agreement"), which provides among other things for the reimbursement of DEVELOPER's costs of design and construction of the POC. STATE is not a party to the Funding and Construction Agreement. 4. CFD 2000-1 desires to acknowledge that the PROJECT, which is the subject of the Cooperative Agreement, is among the public improvements to be financed by CFD 2000-1. It is the intent of CITY and CFD 2000-1 that this Joint Community Facilities Agreement satisfy any requirement of Section 53316.2 of the Act and any applicable provisions of the Municipal Code, and that in all respects that the Cooperative Agreement shall remain in full force and effect. SECTION I CITY AGREES- 1. CITY hereby reaffirms its obligations pursuant to the Cooperative Agreement for the construction and maintenance of the PROJECT. SECTION II CFD 2000-1 AGREES: 1. CFD 2000-1 agrees, subject to the terms of the Funding and Construction Agreement, to reimburse DEVELOPER for the cost of design and construction of the POC. 2 SECTION III DEVELOPER AGREES: I. DEVELOPER agrees, pursuant to the terms of the Funding and Construction Agreement, to act as construction manager and agent of CITY with respect to the construction of the POC. SECTION IV STATE AGREES: I. STATE hereby reaffirms all obligations to be performed by it pursuant to the Cooperative Agreement, including STATE'S agreement that after completion of the PROJECT and its acceptance by STATE, title to the PROJECT will be conveyed to STATE, and further, STATE will accept the structural maintenance responsibility for the PROJECT subject to the terms of the Cooperative Agreement and any subsequent agreement for maintenance entered into between STATE •.r� and CITY. STATE acknowledges that DEVELOPER may be reimbursed by and from proceeds of bonds to be issued by CFD 2000-1 for the cost of desi;:I and construction of the POC. SECTION V IT IS MUTUALLY AGREED: I. In all respects, the Cooperative Agreement as originally entered into between CITY and STATE remains in full force and effect and the sole purpose of this Joint Community Facilities Agreement is to satisfy any requirements of Section 53316.2 et seq. of the Act, and applicable provisions of the Municipal Code, urith regard to the transfer of title of the PROJECT to STATE and the reimbursement of DEVELOPER's costs of design and construction of the POC from the proceeds of the CFD 2000-1 bonds. RVPLM'KAB'57s7.o 3 a -strict Agreement 12417 STATE OF CALIFORNIA Department of Transportation JEIF MORALES Director of Transportation BY: 14,1t-lbll a, CINDY QUO District Director APPROVED AS TO FORM AND PROC Atto � v Depa ent of Transportation CERTIFIED AS TO FINANCIAL TERMS AND CONDITIONS Accounting Administrator ---- -IRTIFIED ZManager District Budget CITY OF HUNTINGTON BEACH BY: "- &4.A,- Mayor G1r.177 ATTEST: OONNIE BROCKWAY City Clerk APPROVED AS TO FORM: y A tomey -t /Yl1� -al REVIEWED AND APPROVED: City A. ministrator COMMUNITY FACILITIES- - DISTRICT 2000-1 of the CITY OF HUN'TINGTON BEACH 4 i PCH BEACH RESORT, LLC, a California limited liability company By: GRAND RESORT,LLC, a California limited liability company, Managing Member 1r 177 By: RLM MANAGEMENT, INC., a California corporation, Manager. _ By: Robert L. Mayer its President By: Robert la ?e Jr. its Secre04 4 RVPUB'.KAB'S15740 5 EXHIBIT A r COOPERATIVE AGREEMENT 1 IR MIIB,,KkB,.S7s7ao A-1 12-ORA-1 KP 38.78 Ocean Grand Resort Pedestrian s. Overcrossing (POC) Bridge 12221-01350K District Agreement No. 12-375 COOPERATIVE AGREEMENT x This AGREEMENT, entered into on A Pr' L 3 o/ 2°, i , between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "STATE", and CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California, referred to herein as "CITY" District Agreement'12-375 ~" J RECITALS 1. STATE and CITY, pursuant to Streets and Highways Code Section 130, are authorized to enter into a Cooperative Agreement for improvements on the State highway system within CITY. 2. CITY desires improvements on the State highway system consisting of construction of the Ocean Grand Resort Pedestrian Overcrossirr (POC) on Route 1 at 0.41 km north of Route 39, and is willing to fund one hundred percent (100%) of all capital outlay and staffing costs, except that costs of STATE's oversight of construction activities will be borne by STATE. The portions of the POC whi--h comprise the bridge span, abutments, and all appurtenances and utilities within and connected to the bridge and/or abutments, but not the stairs, landing and elevator tower, are referred to herein as "PROJECT". 3. The POC will be constructed with the bridge abutments outside of existing STATE's right of way, and a clear span over STATE's existing right of way. 4. CITY desires to prepare the contract documents and administer the construction contract for PROJECT in order to bring about the earliest possible completion of PROJECT. 5. STATE is agreeable to CITY's proposal to prepare the contract documents and administer the construction contract for PROJECT. 6. The parties hereto intend to define herein the terms and conditions under which PROJECT is to be constructed, financed, and maintained. 7. Project development responsibilities for PROJECT were covered in a prior Cooperative Agreement executed by STATE and CITY onLt S� 2oce (District Agreement No. 12- 373, Document No. I � 951 ). SECTION I CITY AGREES: District Agreement'12-375 1. To administer the construction contract for PROJECT in accordance with applicable requirements of the Local Agency Public Constriction Act and the California Labor Code, including its prevailing wage provisions. Workers employed in the performance of work contracted for by CITY, and/or performed under encroachment permit, are covered by provisions of the Labor Code in the same manner as are workers employed by STATE's contractors. CITY shall obtain applicable wage rates from the State Department of Industrial Relations and shall adhere to the applicable provisions of the State Labor Code. Violations shall be reported to the State Department of Industrial Relations. 16 2. To apply for necessary encroachment permits fer required work within State highway right of way, in accordance with STATE's standard permit procedures, as more specifically defined in Articles (2), (3), (4), (5) and (6) of Section III of this Agreement. w 3. In recognition that PROJECT construction work done on STATE property will not be directly funded and paid by STATE, for the purpose of protecting stop notice claimants and the interests of STATE relative to successful PROJECT completion, CITY agrees to require the constructson contractor to furnislrboth a payment and performance bond m ---- CITY name, with both bonds complying with the requirements set forth in Section 3-1.02 of STATE's current Standard Specifications, prior to performing any PROJECT construction work. CITY shall defend, indemnify and hold harmless STATE, its officers and employees from al: PROJECT construction -related claims by contractors and all claimants. 4. To construct PROJECT in accordance with plans and specifications of CITY to the satisfaction of and subject to the approval of STATE. 2 District Agreement' 12-375 5. To ensure that contract Administration procedures shall conform to the requirements set forth in STATE's Construction Manual, Local Assistance Procedures Manual and the Encroachment Permit for construction of PROJECT. 6. To ensure that construction within the existing or ultimate STATE highway right of way shall comply with the requirements in STATE's Standard Specifications and PROJECT Special Provisions, and in conformance with methods and practices specified in STATE's Construction Manual. 7. If CITY uses own staff to perform surveys, to ensure that such surveys shall conform to the methods, procedures, and requirements of STATE's Surveys Manual and STATE's Staking Information Booklet. n 8. To ensure that material testing and quality contrcl shall conform to the State Construction Manual and the State Material Testing Manual, and be performed, at CITY expense, by a certified material tester acceptable to STATE. Independent assurance testing, specialty testing, and off -site source inspection and testing shall be performed by STATE, at no cost to CITY except as noted herein. CITY shall reimburse STATE for any additional travel expenses incurred by STATE for off -site inspection and testing performed by STATE which is more than 300 airline miles from both Sacramento and Los Angeles. _.. Approval of ilie type of asphali -;i-ndZoncreseplaiifs shall be -by STATE, at STATE expense, 9. To furnish, at CITY expense and subject to approval of STATE, a field site representative who is a licensed Civil Engineer in the State of California, to perform the functions of a Resident Engineer. If the PROJECT plans and specifications were prepared by a private engineering company, the Resident Engineer shall not be an employee of that company. The Resident Engineer shall also be independent of the construction contractor. 10. To be responsible, at CITY expense, forconductiag Initial Site Assessment (IS A), Site Investigation (SI), and remediation, of all potential hazardous waste sites and/or 3 District Agrbement'l2-375 hazardous material/underground tanks discovered during the construction of PROJECT outside of the existing State highway right of way. 11. To pay one hundred percent (1007o) of the actual costs of construction required for satisfactory completion of PROJECT, including changes pursuant to contract change orders concurred with by the STATE representative, claims by CTTY's contractor(s), and any "State -furnished material". 12. At CITY expense, to furnish qualified support staff, subject to approval of STATE, to assist the Resident Engineer in, but not limited tc, copstruction surveys, soils and foundation tests, measurement and computation of quantities, testing of construction materials, checking shop drawings, preparation of estimates and reports, preparation of As -Built drawings, and other inspection and staff services necessary to assure that the construction is being performed in accordance with the plans and specifications. Said qualified support staff shall be independent of the design engineering company and construction contractor, except that the PROJECT designer may check the shop drawings, conduct toils foundation tests, test construction materials, and perform construction surveys. 13. To make progress payments to the contractor and pay all costs for required staff services - as described in Articles (9), and (I2) of this SectiSn I."The'STATErepreientative shall review all contract progress pay schedules. STATE does not assume responsibility for accuracy of itemization on progress pay schedules. 14. Within sixty (60) days following the completion and acceptance of the PROJECT construction contract, to furnish STATE a complete set of acceptable full-sized film positive reproducible As -Built plans and all contract records, including survey documents and microfilm copy of all structure plans. 15. Upon completion of work under this Agreement, to assume maintenance and the expense thereof for any part of'PROJECT located outside of current STATE highway right of way 4 District Agreement•12-375 until acceptance of any such part of PROJECT into the STATE highway system by STATE, approval by the Federal Highway Administration, if required, and conveyance of acceptable title to STATE. 16. If CITY terminates PROJECT prior to completion of the construction contract for PROJECT, STATE may require CITY, at CITY expense, to return right of way to its original condition or to a condition of acceptable permanent operation. If CITY fails to do so, STATE reserves the right to finish PROJECT or place PROJECT in satisfactory permanent operation condition, STATE will bill CITY for all actual expenses incurred and CITY agrees to pay said expenses within thirty (30) days or STATE, acting through the State Controller, may withhold an equal amount from future apportionments due CITY from the Highway User Tax Fund. 17. If cultural, archaeological, paleontological or oLh-.r protected materials are encountered during construction of PROJECT, CITY shall stop work in that area until a qualif ed professional can evaluate the nature and significance of the find and a plan is approved for the removal or protection of that material. 18. If any unforeseen potential hazardous material or contaminated sites are encountered during construction of PROJECT, CITY shall confer with appropriate professionals and regulatory agencies on a course of action: CITYmay be zeigbRed to stop W&k until the-'-'- nature of the find can be evaluated and until a remedy or remedial action plan is prepared and approved. The cost_-, for any required remedy or remedial action shall be covered as a cost of PROJECT contemplated by this Agreement. 19. To be responsible, at CITY expense, for the control and maintenance of the elevator tower, landing and stairs. 5 SECTION II 1 �✓ STATE AGREES: District Agreement '12-375 1. To issue at no cost to CITY and CITY's contractor, upon proper application by CITY and by CITY's contractor, the necessary encroachment permits for required work within State highway right of way, as more specifically defined in Articles (2), (3), (4), (5) and (b) of Section III of this Agreement. 2. To provide, at no cost to CITY, a qualified STATE representative who shall have authority to accept or reject work- and materials or to order any actions needed for public safety or the preservation of property and to assure compliance with all provisions of the encroachment permit(s) issued to CITY and CITY's contractor. 3. To provide, at CITY expense, any "State -furnished material" as shown on the plans for PROJECT and as provided in the Special Provisions for PROJECT. 4. To be responsible, at STATE expense, for structural integrity and roadway safety inspections for the entire bridge portion of the POC located within the STATE highway right of way, including the bridge span, abutments, and other structural components of the POC, and to prepare a Bridge Report summarizing maintenance activities for the SECTION III IT IS MUTUALLY AGREED: 1. All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature and the allocation of resources by the California Transportation Commission. C h ' District Agreement '12-375 2. Construction by CITY of improvements referred to herein which lie within STATE highway right of way or affect STATE facilities, shall not be commenced until CITY's original contract plans involving such work and plan for utility relocations have been reviewed and approved by signature of STATE' District Director of Transportation, or the District Director's delegated agent, and until an encroachment permit to CITY authorizing such work has been issued by STATE. 3. CITY shall obtain aforesaid encroachment permit through the office of State District Permit Engineer and CITY's application shall be accompanied by ten (10) sets of reduced construction plans of aforesaid STATE approved contract plans, and ten (10) sets of specifications. Receipt by CITY of the approved encroachment permit shall constitute CITY's authorization from STATE to proceed with work to be. performed by CITY or CITY's representatives within proposed STATE right of way or which affects STATE facilities, pursuant to work covered by this Agreement. CITY's authorization to proceed with said work shall be contingent upon CITY's compliance with all provisions set forth in this Agreement and said encroachment permit. 4. CITY's construction contractor shall also be required to obtain an encroachment permit from STATE prior to commencing any work within STATE right of way or which affects STATE facilities. The application by CITY's contractor for said encroachment permit be made through the office -of State District Permit Engineer and shall include proof that said contractor has payment and performance surety bonds covering construction of PROJECT. 5. CITY shall provide a right of way certification prior to the granting of said encroachment permit by STATE, to certify that legal and physical control of right of way were acquired in accordance with applicable State and Federal laws and regulations. 6. CITY shall not begin construction of PROJECT until after an encroachment permit has been issued to CITY by STATE. VA 7 8. a l D. 11. District Agreement '12-375 CITY's construction contractor shall maintain in force, until completion and acceptance of the PROJECT construction contract, a policy of Contractual Liability Insurance, including coverage of Bodily Injury Liability and Property Damage Liability in accordance with Section 7-1.12 of State Standard Specifications. Such policy shall contain an additional insured endorsement naming STATE, its officers, agents and employees as additional insureds. Coverage shall be evidenced by a Certificate of Insurance in a form satisfactory to STATE which shall be delivered to STATE before the issuance of an encroachment permit to CITY's contractor. Prior to award of the construction contract for PROJECT, CITY may terminate this Agreement by written notice. In construction of said PROJECT, representatives of CITY and STATE will cooperate and consult, and all work pursuant to PROJECT shall be accomplished according to approved plans, specifications and applicable STATE standards. Satisfaction of these requirements shall be verified by the STATE representative. The STATE representative is authorized to enter CITY's property during construction for the purpose of monitoring and coordinating construction activities. Changes to PROJECT plans and specifications shall be implemented by contract change orders reviewed and concurred with by the STATE representative. All changes affecting public safety or public convenience, all design and specification changes, and all major changes as defined in STATE's Construction Manual shall be approved by STATE in advance of performing the work. Unless otherwise directed by the STATE representative, changes authorized as provided herein will not require an encroachment permit rider. All changes shall be shown on the As -Built plans referred to in Section I, Article (14) of this Agreement. CITY shall provide a claims process acceptable to STATE and shall process any and all claims through CITY's claim process. The STATE representative will be made available to CITY to provide ad'vice-and technical input in any claim process,- 8 District Agreement .12-375 '...� 12. If any existing public and/or private utility facilities conflict with. PROJECT construction or violate STATE's encroachment policy, CITY shall make all necessary arrangements with the owners of such facilities for their protection, relocation or removal in accordance with STATE policy and procedure for those facilities located within the limits of work for the PROJECT and in accordance with CITY policy for those facilities located outside of the limits of PROJECT. Total costs of such protection, relocation or removal shall be determined in accordance with STATE policy and procedure. CITY shall require any utility owner and/or its contractors performing relocation work in STATE highway right of way to obtain a STATE encroachment permit prior to the performance of said relocation work. Any relocated or new facilities shall be correctly shown and identified on the As -Built plans referred to in Section I, Article (14) of this Agreement. 13. Pursuant to the authority contained in Section 591 of the Vehicle Code, STATEhas ! determined that within such areas as are within the limits of PROJECT and are open to public traffic, CITY shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CITY shall take all necessary precautions for safe operation of CITY's vehicles, the construction contractors equipment and vehicles and,'or vehicles of personnel retained by CITY and for the protection of the traveling public from -- - - injury -and damage from such vehicles or equi'pm�-nt. 14. Upon completion and acceptance of the PROJECT construction contract by CITY to the satisfaction of the STATE representative and subsequent to the execution of a maintenance agreement, STATE will accept control and maintain, at its own cost and expense, those portions of PROJECT lying within STATE highway right of way. 15. STATE will maintain, at STATE expense, the portions of POC located within STATE highway right of way, including the structural side girders, abutments and the entire structure below the top of the concrete deck surface, exclusive of any surface treatment �1 thereon. CITY will maintain, at CITY expense, tt:e top of the concrete deck surface, E District Agreement12-375 together with any surface treatment thereon, and all other portions of the structure above the concrete deck surface, and shall perform such other work as may be necessary to ensure an impervious and otherwise suitable surface. CITY will also maintain all lighting and traffic service facilities provided for the benefit or control of pedestrian traffic, and will be responsible for all cleaning and painting as required to keep the structure free of debris and graffiti. 16. CITY will accept control and maintain, at its own cost and expense, the portions of POC lying outside STATE highway right of way. CITY will maintain, at CITY expense, the landing, stairs and elevator tower portion of the POC. 17. Upon completion of all work under this Agreement, ownership and title to materials, equipment and appurtenances installed within STATE highway right of way will au- tomatically be vested in STATE, and materials, equipment and appurtenances installed outside of STATE highway right of way will automatically be vested in CITY. No further agreement will be necessary to transfer ownership as hereinabove stated. r...�f 18. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement or affect the legal liability of either party to the Agreement by imposing any standard of care with respect to the maintenance of State highways different from the standard of care imposed by ]a"w.'-- -- 19. Neither STATE nor any officer or employee ther:of is responsible for any damage or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction delegated to CITY under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, CITY shall fully defend, indemnify and save harmless the State of California, all officers and employees from all claims, suits or actions of every name, kind and description brought for or on account of injury (ai defined in Government Code Section 810.8) occurring by reason of anything done or o;nitted to be done by CITY under or in connection with any work, authority or jurisdiction delegated to CITY under this 10 District Agreement•12-375 Agreement, including directly, or indirectly, the "through -girder" design of the PROJECT which provides solid side walls extending to a height of approximately 4 feet 6 inches (4'-6" 1 above the walking deck. 20. Except for liability resulting directly or indirectly from the "through -girder" design of the PROJECT for which CITY has indemnified STATE in Section III, Article (19), neither CITY nor any officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. Except for liability resulting directly or indirectly from the "through -girder" design of the PROJECT for which CITY has indemnified STATE in Section III, Article (19), it is understood and agreed that, pursuant to Government Code Section 895.4, STATE shall fully defend, indemnify and save harmless CITY from all claims, suits or actions of every name, kind and description brou;ht for of on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. 21. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto and no oral understanding or agreement not i_nF6 porated herein sliill 1;e binding on any of the parti s hereto. 22. Those portions of this Agreement pertaining to the construction of PROJECT shall terminate upon completion and acceptance of the construction contract for PROJECT by CITY with concurrence of STATE, or on December 31, 2005, whichever is earlier in time; however, the ownership, operation, maintenance, liability, and claims clauses shall remain in effect until terminated or modified in writing by mutual agreement. District Agreement 12-375 IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized officers. STATE OF CALIFORNIA Department of Transportation JEFF MORALES Director of Transportation I.- -frr- I�i METH G. NELSON District Division Chief Design Approved as to Form and Procedure: Atto y D :pa ment of Transportation Certified as to Form and Procedure: i Accounting Administrator CITY OF HUNTLNGTON BEACH i '; Attest: 4�� _ City Clerk Approved as to Form: -. . 2&�Izl - -e Cit " Attomey p �r�,oi Reviewed and Approved: City AcIministrator rtified as to Funds: Ini ' nd Approved: District Budget Ma er Director of Public Works 12 STATEMENT OF ACTION OF THE CITY COUNCIL CITY OF HUNTINGTON BEACH ****** - Indicates Portions of the Meeting not Included In the Statement of Action 4:00 P.M. — Council Chambers — Closed Session 6:30 P.M. — Room B-8 -- Study Session 7:00 P.M. — Council Chambers Civic Center, 2000 Main Street Huntington Beach, California 92648 Monday, November 19, 2001 The special meeting of the City Council and the Redevelopment Agency of the City of Huntington Beach was called to order at 4:10 p.m. City Council/Redevelopment Agency Roll Call Present: Green, Boardman, Cook, Garofalo, Dettloff, Bauer (Julien Houchen arrived 4:11 p.m.) Absent: None !#iitilir##!r*#i4iwww#xii#•xi#ww*wi#+#i►+#+ii#*#i#riiri#ri#4##w#4#iiw##4www+ii++iiiw#wiiitif►rill*#+#iwiirrar Reconvened City Council/Redevelopment Agency Meeting to Order City Council/Redevelopment Agency Roll Call Present: Green, Boardman, Cook, Julien Houchen, Garofalo, Dettloff, Bauer Absent: None •iiiirfr##irr*wr#rwxrwww##4iww##xw##+•*w#i#+i+wl+#rrir►•r#1r###rr#4r4rrir44#w#wil#i##**ww+i##rir##iii4#rr4iAf (City Council/Redevelepment Agency) Approved the Issuance of $16 Million in Bonds bx _. —_----the City of Huntington Beach Community -Facilities District No. 2000-1 -(Grand Coast__ Resort — Hyatt Regency Huntington Beach Resort and Spa — PCH Beach Resort, LLCIRL Mayer Management, Inc. — Approved Introduction of Ordinance No, 3519 — Adopted Council Resolution Nos. 2001-9012001-91/2001-92 and Agency Resolution No. 327 (330.30) Communication from the Economic Development Director/Deputy Executive Director of the Redevelopment Agency regarding the following: Statement of Issue: On September 14, 1998 the Redevelopment Agency of the City of Huntington Beach entered into an Amended and Restated Disposition and Development Agreement (DDA) with PCH Beach Resorts, LLC for the development of the Hyatt Regency Huntington Beach Resort and Spa. A component of the financing for the project stipulates that the Redevelopment Agency cooperate in the issuance of Community Facilities District (CFD) bonds for the costs asso:iated with installing public improvements surrounding the project. The bonds are supported by a special property tax levy imposed on the leasehold owner of the property (PCH Beach Resorts, LLC) on which the resort is located. On April 17. 2000, the City established a Community Facilities District for that purpose. The actions recommended below are necessary to issue $16 million in CFD bonds. Funding Source: Funding for this CFD will come from bonds to be issued within the next coup!e of months. The payment of the bonds will be made by PCH Beach Resorts, LLC, the long-term leaseholder of the property, which is the owner and developer of the Hyatt Regency Huntington Beach Resort and Spa. Neither the City or the Redevelopment Agency have any responsibilities for the repayment of the bonds, which are to be repaid solely from a special tax levied on the leasehold interest for the project. Recommended Action: The issuance of Community Facilities District bonds requires various sequential steps to be taken by the City Council and Redevelopment Agency. The recommended actions are the following: City Council Actions: 1. Approved introduction of Ordinance No. 3519 —An Ordinance of the City of Huntington Beach Levying Special Taxes within the City of Huntington Beach Community Facilities District No. 2000-01 (Grand Coast Resort)." and 2. Adopted Resolution No. 2001-90 —"A Resolution of the City Council of the City of Huntington Beach Authorizing the issuance of Special Tax Bonds for the City of Huntington Beach Community Facilities District No. 2001-1 (Grand Coast Resort) in an Aggregate Principal Amount nct to Exceed $1 S, 000,000 and Approving Certain Documents and Taking Certain other Actions in Connection therewith." and 3. Adopted Resolution No. 2001-91 — "A Resolution of the City Council of the City of Huntington Beach Approving and Authorizing Execution of a Developer Funding and Construction Agreement and Joint Communit✓ Facilities Agreement Relating to Community Facilities District No. 2000-1(Grand Coast Resort)." and 4. Adopted Resolution No. 2001-92 —"A Resolution of the City Council Approving the Execution and Delivery of an Agreement with the Redevelopment Agency of City of Huntington Beach Regarding the Forbearance of Remedies Under Lease Agreement." _.Redevelopment Agency Actions:._...___ 1. Adopted Resolution No. 327 — "A Resolution of the Redevelopment Agency of the City of Huntington Beach Approving the Execution and Delivery of an Agreement with the City of Huntington Beach Regarding the Forbearance of Remedies Under Lease Agreement." A motion was made by Dettloff, second Green that the City Council approve and authorize the above actions. The motion carried by the following roll call vote: AYES: Green, Boardman, Cook, Garofalo, Dettloff,' Bauer NOES: None ABSTAIN: None ABSENT: Julien Houchen (out of room) }}M4#i}ii#•}liiiifiifif}iii�}4#iiiii}iiiii}f!}}}ii}iMi#}f}}}ii••fiiff4##iif#}}fff#}if}if#if i}}##}444}!}ilifii Adjournment — City CounciURedevelopment Agency Mayor Julien Houchen adjourned the regular meetings of the City Council and the Redevelopment Agency of the City of Huntington Beach to Monday, December 3, 2001 starting at 6:00 p.m., in Room B-8, Civic Center, 2000 Main Street, Huntington Beach, California. ATTEST: /s/ Connie Brockway City Clerk/Clerk STATE OF CALIFORNIA } County of Orange } ss: City of Huntington Beach } Es! Connie Brockway City Clerk and ex -off icio Clerk of the City Council of the City of Huntington Beach and Clerk of the Redevelopment Agency of the City of Huntington Beach, California /s/ Pam Julien Houchen Mayor 1, Connie Brockway, the duly elected City Clerk of tlhe City of Huntington Beach, California, do hereby certify that the above and foregoing is a true and correct Statement of Action of the City Council of said City at their regular meeting held on November 19, 2001. Witness my hand and seal of the said City of Huntington Beach this 27th day of November, 2001. /s1 Connie Brockway City Clerk and ex-offfcio Clerk of the City Council of the City of Huntington Beach and Clerk of the Redevelopment Agency of the City of Huntington Beach, Califomia kl-� City of Huntington Beach 2000 MAIN STREET CALIFORNIA92648 DEPARTMENT OF ECONOMIC DEVELOPMENT Director 7141536-5582 Redevelopment 714/536-5582 FAX 714/375-5087 Housing 7141536-5542 July 3, 2003 Gary Dysart Vice President Psomas and Associates 3187 Red Hill Ave., Suite 250 Costa Mesa, CA 92626 Dear Gary: Enclosed please fid the documents you requested. These include the following: 1. Cooperation Agreement # 12-373 between Caltrans and the City. 2. The easement deeds for the overpass. 3. The Maintenance Agreement for the overpass. I hope with these documents your document compilation will be complete. But in case you need to see additional documents, it appears that Jonathan Claudio of the Engineering Division has many of the files cn the overpass. His number is (714) 536-5380. Should you need additional information, please feel free to contact me. Since ely, G stav A. Duran Housing and Redevelopment Manager Slat_ o `California - Deparunea: of Transporution FACSIMILE COVER ADLI-0172 (Fiev.12192) C* �R9 4 i s72rt Anent or From. Mr. Gary P. Dysart CAt_7'RANS - DISTRICT 12 3337 Mlchelson Dr.. Suite 380 Irvine. CA 92612-1692 UN•rCanPany Name of Ser+de- Mimi Chau PSC MAS oafs 05/20. 2003 Total pates pnc'uc'Ag cover s^eet) 10 DL89iC14N FAX 4 (include arcs code) AT SS FAX (949) 724-2208 Pion: a VndAe wes coda) FAX 1 {tndude area code) done I (Indudo a•sv code) ATSS (714) 751-7373 14) 545-8883 (949) 724-2T'7.- . Hello Mr.Dysart, Per your request, Please find the attached is fully executed Maintenance Agreement between the City of Huntington Beach and the State of California for the Pedestrian Ove►cross.ng of Pacific Coast Highway. I a1snt resent one copy to the City and one copy to your company for record. 1f you have any question or require additional information please contact me at (949) 724-2777. Sincerely, Mirri Chau Maintenance Agreement Coordinator, Caltrans District 12 r 20 2203 1 1 : 36 349 724 22C8 PAGE . 01 �LUNTE ANCE AGREE-N Eti-T �...� THIS AGREENMENT, (the "Agreement') is made and entered into in duplicate, effective this 1 , day of N c v e v„11, ?- r , 2002, by and between the State of California, acting through the Department of Transportation, hereinafter referred to as "STATE," and the =r tF IVJIN7 tiGTON BEACH, a municipal corporation of the State of California, hereinafter referred to as "CITY ". WTI I3ESSETIL_ NV'IIEREAS, on April 30, 2001, a Cooperative Agreement (District Agreement No. 12-375 Document No. 015955) was executed between CITY and STATE wherein CITY agreed to enter into a biaintenancc Ag=ement to clarify the division of maintenance responsibility as to the Ocean Grand Resort Pedestrian Over^rossing, hereafter referred to as the "POC", on Rotate 1, 0.41 km north of Route 39, location ORA-001-38:78 and Structure No. 55-1045. A sketch of the POC maintenance limits is attached hereto as Exhibit "A" and is incorporated herein by this reference. NOW THERUORE, IT IS AGREED: 1.PEDFSTRiA. 0WRCROSS)itiG MALti' MNANCE A. Rfithia the limits of the STATE right of way, STATE will maintain, at STATE's own cost and expense, the side girders, abutments and the entire structure of the POC below the top of the concrete deck surface, exclusive of any surface treatment thereon. B. CITY will accept control and maintain, at CITY expense, the portions of the POC lying outside the STATE right of way, including, but not limited to, the landing, stairs and elevator tower portion of the POC. In addition, CITY will maintain, at CITY expense, the top of the concrete deck surface, together with any surface treatment thereon, and all other portions of the structure above the concrete deck surface, and shall perform such other work as may be necessary to ensure an impervious and otherwise suitable surface. CITY will also maintain all lighting and traffic service facilities provided for the benefit or control of pedestrian traffic, and will be responsible for all cleaning and pWrndnn as required to keep the ertL-e structure free of debris and graffiti. 2. FUTURE LNIPROVE. )ENT When a planned future improvement has been constructed andfor a minor revision has been effected to the POC, which affects the parties' division of maintenance responsibility for the POC as described herein, STATE will provide an amendment, which will be made a part of this Agreement when executed by both parties. r 2.0 20G3 1 1 = 36 S49 724 2206 PAGE . C2 J 3. LEGAL RELATIONS AND RESPO:�'SiBMIES: A. Nothing in tl`e provisions of this Agreement is intended to create duties or obligations to or rights in third parties not patties to.this Agreement or affect the legal liability of either party to the Agreers_nt by imposing any standard of care with respect to the maintenance of STATE highways or the POC different from the standard of care imposed by law. B. Notwithstanding the foregoing, STATE acknowledges and consents to the following: L Pursuant to paragraph 5(c) of that certain agreement entitled, "License Agreement to Provide Landscaping and Other Public Improvements in the Public Right -of -Way" (" hereinafter referred to as the "License Agreement"), Dated February 20, 200I, by and between, among others, CITY and MAYER FLN;A.NCIAL- L:--P.- (hereinafter. referred to as "MAYER'). bL4YER has as eed to perform and assure, at no cost to CITY, any amid all of CrN's liabilities, obligations and responsibilities to STATE and/or others which may arise out of or are related to the CalTrans Approvals (as defined below), including, without limitation, paying or reimbursing STATE for costs incurred by STATE with respect to the POC which are CITY's responsibilities under the CalTrans Approvals. The "Caltrans Approvals" are defined in recital paragraph E of the License Agreement as ...,� "encroachment permits, a Cooperative Agreement for design and project development (District Agreement No.12.373), a Cooperative Agreement for the construction phase of the project (District Agreement No. 12-375), and ...[this) Maintenance Agreement." II. Pursuant to that certain agreement entitled, "Assignment and Assumption Agreemen: and Consent to Assignment, "dated April 3, 2001, by and between MAYER and PCH Beach Resort, LLC (hereinafter referred to as `TCH"), PCH has agreed to perform and assume all of NIAYER's obligations under the License Agreement relating to, among other things, the CalTrans Approvals. C.. It is understood and agreed that neither STATE nor any official, officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by C= under or in connection with any work, authority or jurisdiction delegated to CITY undue this Agreement. It is understood and weed that, pursuant to Government Code section 895.4, CITY shall defend, indemnify and save harmless STATE and all of its officials, officers and employees from all claims, suits or actions of every name, kind and description brought for or on account of injuries to or deadi o, any person or damage to property resulting from anything done or omitted t3 be done by CITY under or in connection with any work, authority or juriseiction delegated to CITY under this Agreement or any delegations by CITY to Ul ird parties as referenced in 33 above. 2Q 2033 11:36 949 724 2208 PAGE-03 D. It is understood and agreed that neitl:cr CITY nor any official, officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. It is understood and agreed that, pursuant to Government Code section 895.4, STATE small defend, indemnify and save harmless CITY and all of its officials, officers and employees {but no indemnification and save. harmless or defense is owed by STATE to MAYER or PCH) from all claims, suits or actions of every rame, kind and description brought for or on account of injuries to or death of any person or damage to property resulting from anything done or omitted to be done by STATE tinder or in connection with any work:, authority or jurisdiction delegated to STATE under this Agreement. 4. EFFECTIVE DATE This Agreement shack be effective upon the dare appearing on its face. 213 20103 11:37 949 724 2208 PAGE.E4 IN WULNESS NVHEREOF, the parries hereto have set their hands and seats the day and year first above written. CITY OF HUN"1LtiGTON BEACH Atie City Clerk Approved as to Form: STATE OF CALIFORNIA DEPARTMEN-r OF TRANSPORTATION' JEFF MORALES Dircg.�of Transpo lion K w City Attorneyh Reviewed and Approved: � tj_,X� C Ky Administrator Initiated and Approved: /-, //—/, /- /�,- - - - � f Director of P is works 7. Disa* Deputy Director Opera io s and Maintenancr Approved as to Form and Procedure: Attorney Department of Transportation 20 2333 11:37 949 724 220e PAGC.09 t - 4S.415 L tMessured along C rvfdge) Glass Block lantern - -- CU 1 35.bbl Clear SVd1I RI y Tap 01 conc Chaln Link y m Deco. i © E)eVdtOr Towar O Precl Top of Conc Glydar + AJ0vIC [.] n Surface Overlay o » Proposed Sidewalk CIrA .h Typ Cbnc Wall ryp F1OC Conc Efev 9.28em +- tanrern Posr ~ Eiaflam!of CPftler CC ; `u • N Elev 7.F52m _ Elav 7.I57m o ` Exfst Adwy 1 PC• R-Y • 1'-0•er.•firr�ris+iJ.rf��y.s�+aer..�r�as�•r+.r.o� - - - - - - - pttum Elev•17.D m + Lr--w- --_-, ._L�--�_ - l �• llpufmonf-w-wr•+r-e-�r _�. env ■r .. re• u u n ` Typ a .. i• r 71 Exlsf 1.37amgt � �• � ; Af,e,r r — � = I Abut 2 Sewer Line p N u � 3 SOUTH ELEVATION , Jr• i AS. x I:ISO Q.380 m PCIPS P27 Shaer Driven Pife pNes '1'yb Fxfsfln Pl hf or Way 30.dfffl In (100 fr) •7.4et I 9.. J.BAt ,.Wt 3.612.dimf. 156: ..tom .....�� .�w7fiet . �. a, f36 yL�O' 8E t�.1 2.% d t • i l l 'Median' t 1 t tw a • � O t I N r, �n N to N m m T) 0 rn s Fxlsl 1.37OmPr: • •� Sewer tine ftalling, Typ—,z, Flev 3.61O1 m� C Orldge Trend Drain, Typ See-ArChlleClUral Plans' , ■ .b H j ls•rao.eao c rcH I Z1• • 1 '. t � � r� larau.000 t r�rlaye 2.44 fl t t; 1 1 I t tt 7•�. LIMITS ! u ry ' ' . J 0 i 1:12 Wn fo+2O Poll 1D+40L7 ■ AoI! Lr2 Lt3wh r F7 CALTRANS BRIDGE MAINTENANCE UlNrnala lFulure) t.SDO?.� 3.15100 3.500 17,600 ].600 ].600 ].600 ].6ffp .40g2.S0o� '75.00A (See 'R101a I-) 1 L C •1! 1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT r.�KELLY LoUtsE MA-ffiNDIC it �,. Commission 1372871 State of-��cLe,[� z =: - Notory Public - CoHomio Ororpe County County of Mil Comm E;I;:ii%Sep 1.2006 On 11()IVF1'7 .1-caZ- before me, rI' CA�1 �c1,1J.r Caia d ymn� an . dq or O rerl (a.g. •girl; Oae- Wt-W P-blcl personally appeared &Z-emp cr s —, 3rjxj T personally known to me — OR — U proved to me on the basis a satisfactory evidence to be the perscrtp whose narr.qois/® subscribed to the �wr hin instrument and acknow edged to me that helshe"0executed the same in hi ; er ei authorized capacityfP, and that b .eir h`s/herl -ignaturqoon the instrument the persor. sf or the entity upon behalf of which the persor0sacted, executed the instrument. kcliy LOUM MAN01C �.. Corr%mt,won 9 1372899 WITNESS try hand and ofricial seal. No. publ!c - Canfornla ore County 'vt•' C.�:TMn E4�asSep 1.2006 .�/,/(%/�' f�' agndf IA Or A1C .� PuCtt J OPTIONAL 7,10u;h Lye irfonva:fon below is nct required by law. it may prove vala3-1 1P ro persons relying on the docur.+ent and could prevent fraudulent removal and rearachmenr of this tom to another documomt. Description of Attached Document Title or Type of DccumenC /�cz.�.,��,ru-e- (�7� ,�g�.�x•- — `S 7e� Dccument Date: Number of Pages: 5 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: — he.1 k,:F C=k U Individual cionnLF B WCkza,41 FZCorporate Officer Title(s): A1,4J006 I- / 1< ! ' Panner --0 Limited G General U Attorney -in -Fact " Trustee C Guardian or Conservator n Other. S 'D-r- S:rner 1�Representing: i Signer's Name: U 0 13 n Individual Corperate Officer Tit e(s): Partner — ❑ Limited C General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer is Representing: -C 19ai Nei wW Nmary A.-xiaien - &= A -,,,MAC.. P.O. BnK 7184 - Caro;,a Pyw, CA 911094164 Pnd Na 59V A.ars.r:C I7CU-Free1aG}61544•7 20 20M 11:37 949 724 2208 PAGE.E7 I dt7 Cy C4d:a 11.4V WLZI 1C I'HIN1 tNl7 7�.J fG+ L.�W 1 •W r4 T r It ATTACHMENT #4 Y 20 2003 11:38 S49 724 2208 PAGE.eS D 1 l i MH 1 N i ENU INSURANCE AND INDEMNIFICATION WAIVER ;9 MODIFICATION REQUEST 1. Requested by: Robert F. Beardsley 2. Date: October21, 2002 3. Name of contractor/permittee: State of California 4. Description of work to be performed: Maintenance Agreement 5- Value and length of contract: Value = 0: Length = Life of Pedestrian Overcrossing 6. Waiver/modification request: See attached, 7. Reason for request and why it should be granted: Standard Caltrans' indemnification provision; Caltrans will not accept alternate provisions. 8. Identify the risks to the City in approving this waiver/modification: City will have , to indemnify and defend the State for anything completed or omitted by the City. Department Head Signature Date: Inc R IrkiAmnifinnfinn Fnrm ini71l nng i-ns PM MA`f 20 2003 11:36 949 724 22ce PAGE.09 iJ1Jl is IinlIIt u•+�-, ATTACHMENT b. Waive City Standard indemnification requirements and accept Sections 3C and 3D, including City's indemnification and defense obligations of the State as set forth in Section 3C of the Maintenance Agreement. C:\Eng\Ellioti\HyanUIF - Anachmtnt TOTAL P.10 MA`F EO 2©03 1 1 : 3e 943 724 22oe PPGE . 1 10 ICE V CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONN4E EROCKWAY CITY CLERK LETTER OF TRANSMITTAL OF ITEMI APPROVED BY THE CITY COUNCIL/ REDEVELOPNIENT AGENCY OF THE CITY OF HUNTI`'GTON BEACH DATE: June 11 2001 TO: Mayer Financial, L,]E,, ATTENTION: Cynthia Nw.-W 660 Newport Center Dr., Suite 1050 DEPARTI%IENT: street - Nevport Beach. CA 92660 REGARDING. Cooperative Agreement Cin', Suave, Zip No. 12-375 - Caltrans - POC Bridtze See Attached Action Agenda Item F-1 Date of Approval 2/20101 Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item. Remarks: Connie Brock-%Nzy City Clerk Attachments: Action Agenda Page x Agreement x Bonds Insurance RCA Deed Other CC: Marx Deputment RCA A7,eenxn tttturanee Other None Department RCA Ayaer:.w Insurance Other Dune Department RCA AFsemeat Inruance Other Name Deputmmt RCA Age--d bsurmwe Other Nxim Department RCA insurance (Telephone: 7 t4536-5227) STATE OF CALIFORNIA—BUSINESS AND (- NSPORTATION AGENCY ,` GRAY DAVIS, Governor r DEPARTMENT OF TRANSPOA I ATION DISTRICT 12 3337 MICHELSON Dr. Ste. CN380 IRVINE, CA 92612-1692 City of Huntington Beach . 2000 Main Street, P.O. Box 190 Huntington Beach, CA 92648 Attn: Mr. Robert Eichblatt SUBJECT: Executed Cooperative Agreement Dear Mr. Eichblatt May 21, 2001 File: 12-ORA-1-PM 24.1 / Km 38.78 12-209-013501 District Agreement No. 12-375 Attached for the City of Huntington Beach's files is a fully executed copy Cooperative Agreement No. 12-375 between the State of California and City of Huntington Beach, for the above referenced project. We thank you for your cooperation in the processing of this agreement. If you have any questions, please call me at (714) 724-2136. Sincerely, Thuan Nguyen Design Engineer Design Branch D 4 Attachment: 12-ORA-1 KP 38.78 Ocean Grand Resort Pedestrian 015955 Overcrossing (POC) Bridge 12221-01350K District Agreement No. 12-375 r COOPERATIVE AGREEMENT This AGREEMENT, entered into on A p r' 1 3 0 / 2°'D I , between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "STATE", and CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California, referred to herein as "CITY" ' . District Agreement,'12-375 RECITALS 1. STATE and CITY, pursuant to Streets and Highways Code Section 130, are authorized to enter into a Cooperative Agreement for improvements on the State highway system within CITY. 2. CITY desires improvements on the State highway system consisting of construction of the Ocean Grand Resort Pedestrian Overcrossing (POC) on Route 1. at 0.41 km north of Route 39, and is willing to fund one hundred percent (100%) of all capital outlay and staffing costs, except that costs of STATE's oversight of construction activities will be borne by STATE. The portions of the POC which comprise the bridge span, abutments, and all appurtenances and utilities within and connected to the bridge and/or abutments, but not the stairs, landing and elevator tower, are referred to herein as "PROJECT". 3. The POC will be constructed with the bridge abutments outside of existing STATE's right of way, and a clear span over STATE's existing right of way. 4. CITY desires to prepare the contract documents and administer the construction contract for PROJECT in order to bring about the earliest possible completion of PROJECT. 5. STATE is agreeable to CITY's proposal to prepare the contract documents and administer the construction contract for PROJECT. 6. The parties hereto intend to define herein the terms and conditions under which PROJECT is to be constructed, financed, and maintained. 7. Project development responsibilities for PROJECT were covered in a prior Cooperative Agreement executed by STATE and CITY or►�uLyT00 (District Agreement No. 12- 373, Document No.1y 851). 1 District'Agreement ' 12-375 SECTION I CITY AGREES: 1. To administer the construction contract for PROJECT in accordance with applicable requirements of the Local Agency Public Construction Act and the California Labor Code, including its prevailing wage provisions. Workers employed in the performance of work contracted for by CITY, and/or performed under encroachment permit, are covered by provisions of the Labor Code in the same manner as are workers employed by STATE's contractors. CITY shall obtain applicable wage rates from the State Department of Industrial Relations and shall adhere to the applicable provisions of the State Labor Code. Violations shall be reported to the State Department of Industrial Relations. 2. To apply for necessary encroachment permits for required work within State highway right of way, in accordance with STATE's standard permit procedures, as more specifically defined in Articles (2), (3), (4), (5) and (6) of Section III of this Agreement. 3. In recognition that PROJECT construction work done on STATE property will not be directly funded and paid by STATE, for the purpose of protecting stop notice claimants and the interests of STATE relative to successful PROJECT completion, CITY agrees to require the construction contractor to furnish both a payment and performance bond in CITY name, with both bonds complying with the requirements set forth in Section 3-1.02 of STATE's current Standard Specifications, prior to performing any PROJECT construction work. CITY shall defend, indemnify and hold harmless STATE, its officers and employees from all PROJECT construction -related claims by contractors and all claimants. 4. To construct PROJECT in accordance with plans and specifications of CITY to the satisfaction of and subject to the approval of STATE. 2 District'Agreement' 12-375 5. To ensure that contract Administration procedures shall conform to the requirements set forth in STATE's Construction Manual, Local Assistance Procedures Manual and the Encroachment Permit for construction of PROJECT. 6. To ensure that construction within the existing or ultimate STATE highway right of way shall comply with the requirements in STATE's Standard Specifications and PROJECT Special Provisions, and in conformance with methods and practices specified in STATE's Construction Manual. 7. - If CITY uses own staff to perform surveys, to ensure that such surveys shall conform to the methods, procedures, and requirements of STATE's Surveys Manual and STATE's Staking Information Booklet. 8. To ensure that material testing and quality control shall conform to the State Construction Manual and the State Material Testing Manual, and be performed, at CITY expense, by a certified material tester acceptable to STATE. Independent assurance testing, specialty testing, and off -site source inspection and testing shall be performed by STATE, at no cost to CITY except as noted herein. CITY shall reimburse STATE for any additional travel expenses incurred by STATE for off -site inspection and testing performed by STATE which is more than 300 airline miles from both Sacramento and Los Angeles. Approval of the type of asphalt and concrete plants shall be by STATE, at STATE expense. 9. To furnish, at CITY expense and subject to approval of STATE, a field site representative who is a licensed Civil Engineer in the State of California, to perform the functions of a Resident Engineer. If the PROJECT plans and specifications were prepared by a private engineering company, the Resident Engineer shall not be an employee of that company. The Resident Engineer shall also be independent of the construction contractor. 10. To be responsible, at CITY expense, for conducting Initial Site Assessment (ISA), Site Investigation (SI), and remediation, of all potential hazardous waste sites and/or K VDistrict'Agreement'l 2-375 I'' 13. 14 15. hazardous material/underground tanks discovered during the construction of PROJECT outside of the existing State highway right of way. To pay one hundred percent (100%) of the actual costs of construction required for satisfactory completion of PROJECT, including changes pursuant to contract change orders concurred with by the STATE representative, claims by CITY's contractor(s), and any "State -furnished material". At CITY expense, to furnish qualified support staff, subject to approval of STATE, to assist the Resident Engineer in, but not limited to, construction surveys, soils and foundation tests, measurement and computation of quantities, testing of construction materials, checking shop drawings, preparation of estimates and reports, preparation of As -Built drawings, and other inspection and staff services necessary to assure that the construction is being performed in accordance with the plans and specifications. Said qualified support staff shall be independent of the design engineering company and construction contractor, except that the PROJECT designer may check the shop drawings, conduct soils foundation tests, test construction materials, and perform construction surveys. To make progress payments to the contractor and pay all costs for required staff services as described in Articles (9), and (12) of this Section I. The STATE representative shall review all contract progress pay schedules. STATE does not assume responsibility for accuracy of itemization on progress pay schedules. Within sixty (60) days following the completion and acceptance of the PROJECT construction contract, to furnish STATE a complete set of acceptable full-sized film positive reproducible As -Built plans and all contract records, including survey documents and microfilm copy of all structure plans. Upon completion of work under this Agreement, to assume maintenance and the expense thereof for any part of PROJECT located outside of current STATE highway right of way 4 District'Agreement 12-375 until acceptance of any such part of PROJECT into the STATE highway system by STATE, approval by the Federal Highway Administration, if required, and conveyance of acceptable title to STATE. 16. If CITY terminates PROJECT prior to completion of the construction contract for PROJECT, STATE may require CITY, at CITY expense, to return right of way to its original condition or to a condition of acceptable permanent operation. If CITY fails to do so, STATE reserves the right to finish PROJECT or place PROJECT in satisfactory permanent operation condition. STATE will bill CITY for all actual expenses incurred and CITY agrees to pay said expenses within thirty (30) days or STATE, acting through the State Controller, may withhold an equal amount from future apportionments due CITY from the Highway User Tax Fund. 17. If cultural, archaeological, paleontological or other protected materials are encountered during construction of PROJECT, CITY shall step work in that area until a qualified professional can evaluate the nature and significance of the find and a plan is approved for the removal or protection of that material. 18. If any unforeseen potential hazardous material or contaminated sites are encountered during construction of PROJECT, CITY shall confer with appropriate professionals and regulatory agencies on a course of action. CITY may be required to stop work until the nature of the find can be evaluated and until a remedy or remedial action plan is prepared and approved. The costs for any required remedy or remedial action shall be covered as a cost of PROJECT contemplated by this Agreement. 19. To be responsible, at CITY expense, for the control and maintenance of the elevator tower, landing and stairs. 5 ~/ District'Agreement 12-375 SECTION 11 STATE AGREES: 1. To issue at no cost to CITY and CITY's contractor, upon proper application by CITY and by CITY's contractor, the necessary encroachment permits for required work within State highway right of way, as more specifically defined in Articles (2), (3), (4), (5) and (6) of Section III of this Agreement. 2. To provide, at no cost to CITY, a qualified STATE representative who shall have authority to accept or reject work and materials or to order any actions needed for public safety or the preservation of property and to assure compliance with all provisions of the encroachment permit(s) issued to CITY and CTTY's contractor. 3. To provide, at CITY expense, any "State -furnished material" as shown on the plans for PROJECT and as provided in the Special Provisions for PROJECT. 4, To be responsible, at STATE expense, for structural integrity and roadway safety inspections for the entire bridge portion of the POC located within the STATE highway right of way, including the bridge span, abutments, and other structural components of the POC, and to prepare a Bridge Report summarizing maintenance activities for the PROJECT. SECTION III IT IS MUTUALLY AGREED: 1. All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature and the allocation of resources by the California Transportation Commission. Z District'Agreement'12-375 2. Construction by CITY of improvements referred to herein which lie within STATE highway right of way or affect STATE facilities, shall not be commenced until CITY's original contract plans involving such work and plan for utility relocations have been reviewed and approved by signature of STATE's District Director of Transportation, or the District Director's delegated agent, and until an encroachment permit to CITY authorizing such work has been issued by STATE. 3. CITY shall obtain aforesaid encroachment permit through the office of State District Permit Engineer and CITY's application shall be accompanied by ten (10) sets of reduced construction plans of aforesaid STATE approved contract plans, and ten (10) sets of specifications. Receipt by CITY of the approved encroachment permit shall constitute CITY's authorization from STATE to proceed with work to be performed by CITY or CITY's representatives within proposed STATE right of way or which affects STATE facilities, pursuant to work covered by this Agreement. CITY's authorization to proceed with said work shall be contingent upon CITY's compliance with all provisions set forth in this Agreement and said encroachment permit. 4. CITY's construction contractor shall also be required to obtain an encroachment permit from STATE prior to commencing any work within STATE right of way or which affects STATE facilities. The application by CITY's contractor for said encroachment permit shall be made through the office of State District Permit Engineer and shall include proof that said contractor has payment and performance surety bonds covering construction of PROJECT. 5. CITY shall provide a right of way certification prior to the granting of said encroachment permit by STATE, to certify that Iegal and physical control of right of way were acquired in accordance with applicable State and Federal laws and regulations. 5. CITY shall not begin construction of PROJECT until after an encroachment permit has been issued to CITY by STATE. it, 7 '__'District'Agreement'l 2-375 7. CITY's construction contractor shall maintain in force, until completion and acceptance of the PROJECT construction contract, a policy of Contractual Liability Insurance, including coverage of Bodily Injury Liability and Property Damage Liability in accordance with Section 7-1.12 of State Standard Specifications. Such policy shall contain an additional insured endorsement naming STATE, its officers, agents and employees as additional insureds. Coverage shall be evidenced by a Certificate of Insurance in a form satisfactory to STATE which shall be delivered to STATE before the issuance of an encroachment permit to CITY's contractor. 8. Prior to award of the construction contract for PROJECT, CITY may terminate this Agreement by written notice. 9. In construction of said PROJECT, representatives of CITY and STATE will cooperate and consult, and all work pursuant to PROJECT shall be accomplished according to approved plans, specifications and applicable STATE standards. Satisfaction of these requirements shall be verified by the STATE representative. The STATE representative is authorized to enter CITY's property during construction for the purpose of monitoring and coordinating construction activities. 10. Changes to PROJECT plans and specifications shall be implemented by contract change orders reviewed and concurred with by the STATE representative. All changes affecting public safety or public convenience, all design and specification changes, and all major changes as defined in STATE's Construction Manual shall be approved by STATE in advance of performing the work. Unless otherwise directed by the STATE representative, changes authorized as provided herein will not require an encroachment permit rider. All changes shall be shown on the As -Built plans referred to in Section I, Article (14) of this Agreement. 1 l . CITY shall provide a claims process acceptable to STATE and shall process any and all claims through CITY's claim process. The STATE representative will be made available to CITY to provide advice and technical input in any claim process. 8 '--'District'Agreemcnt *12-375 12. If any existing public and/or private utility facilities conflict with PROJECT construction or violate STATE's encroachment policy, CITY shall make all necessary arrangements with the owners of such facilities for their protection, relocation or removal in accordance with STATE policy and procedure for those facilities Iocated within the limits of work for the PROJECT and in accordance with CITY policy for those facilities located outside of the limits of PROJECT. Total costs of such protection, relocation or removal shall be determined in accordance with STATE policy and procedure. CITY shall require any utility owner and/or its contractors performing relocation work in STATE highway right of way to obtain a STATE encroachment permit prior to the performance of said relocation work. Any relocated or new facilities shall be correctly shown and identified on the As -Built plans referred to in Section I, Article (14) of this Agreement. 13. Pursuant to the authority contained in Section 591 of the Vehicle Code, STATE has determined that within such areas as are within the limits of PROJECT and are open to public traffic, CITY shall comply with all of the requirements set forth in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CITY shall take all necessary precautions for safe operation of CITY's vehicles, the construction contractor's equipment and vehicles and/or vehicles of personnel retained by CITY and for the protection of the traveling public from injury and damage from such vehicles or equipment. 14. Upon completion and acceptance of the PROJECT construction contract by CITY to the satisfaction of the STATE representative and subsequent to the execution of a maintenance agreement, STATE will accept control and maintain, at its own cost and expense, those portions of PROJECT lying within STATE highway right of way. 15. STATE will maintain, at STATE expense, the portions of POC located within STATE highway right of way, including the structural side girders, abutments and the entire structure below the top of the concrete deck surface, exclusive of any surface treatment thereon. CITY will maintain, at CITY expense, the top of the concrete deck surface, 4 '-'-'District'Agreement12-375 together with any surface treatment thereon, and all other portions of the structure above the concrete deck surface, and shall perform such other work as may be necessary to ensure an impervious and otherwise suitable surface. CITY will also maintain all lighting and traffic service facilities provided for the benefit or control of pedestrian traffic, and will be responsible for all cleaning and painting as required to keep the structure free of debris and graffiti. 15. CITY will accept control and maintain, at its own cost and expense, the portions of POC lying outside STATE highway right of way. CITY will maintain, at CITY expense, the landing, stairs and elevator tower portion of the POC. 17. Upon completion of all work under this Agreement, ownership and title to materials, equipment and appurtenances installed within STATE highway right of way will au- tomatically be vested in STATE, and materials, equipment and appurtenances installed outside of STATE highway right of way will automatically be vested in CITY. No further agreement will be necessary to transfer ownership as hereinabove stated. I8. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement or affect the legal liability of either party to the Agreement by imposing any standard of care with respect to the maintenance of State highways different from the standard of care imposed by law. 19. Neither STATE nor any officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction delegated to CITY under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, CITY shall fully defend, indemnify and save harmless the State of California, all officers and employees from all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction delegated to CITY under this 10 '--'District'Agreetrient.l 2-375 Agreement, including directly, or indirectly, the "through -girder" design of the PROJECT which provides solid side walls extending to a height of approximately 4 feet 6 inches (4'-6") above the walking deck. 20. Except for liability resulting directly or indirectly from the "through -girder' design of the PROJECT for which CITY has indemnified STATE in Section III, Article (19), neither CITY nor any officer or employee thereof is responsible for any damage or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. Except for liability resulting directly or indirectly from the "through -girder" design of the PROJECT for which CITY has indemnified STATE in Section III, Article (19), it is understood and agreed that, pursuant to Government Code Section 895.4, STATE shall fully defend, indemnify and save harmless CITY from all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. 21. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 22. Those portions of this Agreement pertaining to the construction of PROJECT shall terminate upon completion and acceptance of the construction contract for PROJECT by CITY with concurrence of STATE, or on December 31, 2005, whichever is earlier in time; however, the ownership, operation, maintenance, liability, and claims clauses shall remain in effect until terminated or modified in writing by mutual agreement. 11 ,WW District'Agreetnent 12-375 IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized officers. STATE OF CALIFORNIA Department of Transportation JEFF MORALES Director of Transportation BY: 7�j ZV-L .fw kEKAT11 G. NELSON District Division Chief Design Approved as to Form and Procedure: Atto y01 Depa ment of Transportation Certified as to Form and Procedure: C� , k-e,��-nL Accounting Administrator rtified as to Funds: District Budget Ma Wer CITY OF HUNTINGTON BEACH B1': Mayo • - Attest: City Clerk - Approved as to Form: Ci,�"ttorney .01 Reviewed and Approved: City AcIministrator Ini nd Approved: rl Director of Public W'Vorks 12 CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 82648 OFFICE OF THE CITY CLERK CONME EROCKWAY Cr=Y CLERK LETTER OF TRANSMITTAL OF ITEM APPROVED BY TIIE CITY COUNCILI REIIEVELOP1IEN7 AGEICY OF TIIE CITY OF 1iUNTI1GT0N BEACII DATE: March 15, 2001 TO: Department of Transportation ATTENTION: Tam Nguyen, Chief Name 3347_Michelson Drive, Suite 100 _T I)EPARTIIIENT: ntstrict 12 Street — Irvine, CA 92612 REGARDING: Cooperative Agreement City, state. Zip No. 12-375 See Attached Action Agenda Item P-1 Date of Approval 3-5-01 Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item. Remarks: Please return an executed copy to the above address; Attn: Jeffrey Hughes. Thank you. Connie Brockway City Clerk Attachments: Action Agenda Page Agreement 5x Bonds Insurance RCA Deed Other CC: G. Dysart DPW-EyG x Name Department RCA A;rttment Insimmce Other Name Deparhmnt RCA Atntmtnt Insurance Other Name Department RCA Atreemtot Insurance Other Name Department RCA AE:etmrnt Instrance Other Risk Management Derr Insurance (Telephone: 714-53C4227 ) f CITY OF HUNTINGTON BExH '? R. " AP -My MEETING DATE: February 20, 2001 DEPARTMENT ID N /j7H'!c 0 -the IfIQ-le'*evet Council/Agency Meeting Held: Deferred/Continued to: Approved ❑ Conditionally Approved O Denied U �� Cit Cier ' Si nature Council Meetingb u. 1=ebruary 20, 2001 Department ID Number: PW-01-003 f�NO CITY OF HUNTINGTON BEACH I REQUEST FOR ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL SUBMITTED BY: RAY SILVER, City Administrator/�.c-, !' " !-RPREPARED BY: ROBERT F. BEARDSLEY, Director of Public Work SUBJECT: APPROVE (1) A LICENSE AGREEMENT WITH THE WATERFRONT HOTEL, LLC, AND MAYER FINANCIAL, L.P., (2) A COOPERATIVE AGREEMENT NO. 12-375 WITH CALTRANS, AND (3) AN AGREEMENT WITH ORANGE COUNTY SANITATION DISTRICT AND MAYER FINANCIAL, L.P. INVOLVING PUBLIC IMPROVEMENTS AND A PEDESTRIAN OVERCROSSING Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis. Environmental Status, Attachments) Statement of Issue: The installation of certain public improvements in conjunction, with development of the Grand Resort Hotel by Mayer Financial, L.P.. (MF) requires approval of cooperative agreements with Caltrans and the Orange County Sanitation District involving the construction of a pedestrian overcrossing of Pacific Coast Highway, and a License Agreement between the City and MF and. Waterfront Hotel, LLC, to provide for installation, maintenance and repair of landscaping and other improvements, including the pedestrian overcrossing in the public right of way. These agreements have been prepared and are ready for approval by the City Council. Funding Source: Pursuant to an existing license agreement and an amended and restated Development Agreement (DA) with MF, all costs are borne by the predecessor in interest in the Waterfront Hilton Parcel and by MF for the construction and maintenance of specified public improvements covered by these agreements. Recommended Action: Motion to: (1) Approve a License Agreement to provide landscaping and other public improvements in public right of way (including a pedestrian overcrossing of Pacific Coast Highway) in connection with the proposed Grand Coast Resort Hotel project and the Waterfront Hilton Hotel; 218101 11:48 AM ['. ` I 01-003 Fees 20 Dysart (Mayer Financial) -2- U REQUEST FOR ACT16 MEETING DATE: February 20, 2001 DEPARTMENT ID NUMBER:PW-01-003 (2) Approve "'a Cooperative Agreement No. 12-375 between Caltrans and the City of Huntington Beach for Contract Admin' tration and Construction of the Pedestrian Overcrossing of Pacific Coast Highway; H CITI VDW141F (ATIo0 rfo WITZ NS ; (3) Approve an agreement between the Ora ge County Sanitation District (OCSD), MF and City of Huntington Beach involving the installation of a Pedestrian Overcrossing; (4) Approve a deductible or self -insured retention of one hundred thousand dollars ($100,000) for the general liability insurance for the license agreement, which amount shall increase with increases in the policy limits as recommended by the Settlement Committee; (5) Approve the City's obligation to indemnify the OCSD, in the event MF fails to do so, for all claims or liabilities arising out of (1) the failure of MF to timely perform its obligations set forth in the OCSD Agreement or (2) any damage or interference to the OCSD's sewer transmission pipeline that is caused by the acts or omissions of MF; (6) Approve the City's obligation to reimburse OCSD, in the event MF fails to do so, for (1) any costs incurred by OCSD in the removal of any portion(s) of the Pedestrian Overcrossing Landing, (2) any additional costs incurred by OCSD to repair, reconstruct and/or replace the OCSD pipeline when such additional costs are attributable to the existence of the Pedestrian Overcrossing Landing and (3) any costs to reconstruct the Pedestrian Overcrossing Landing following the removal of any portion(s) by OCSD; (7) Authorize the Mayor and City Clerk to execute the above -referenced agreements in substantially the same form and upon approva' of the City Attorney, on behalf of the City with the effective date of the License Agreement and the OCSD Agreement being the date of approval of the ground lease for the Grand Coast Resort Hotel parcel; and (8) Authorize the City Clerk to record the License Agreement and the OCSD Agreement with the County Recorder after execution of the ground lease for the Grand Coast Resort parcel by MF. Alternative Action(s): Deny the recommended action and provide direction to staff for alternative action. Analysis: In connection with the development approvals granted for the Grand Coast Resort Hotel parcel, MF, as ground lessee, was required by the City to install certain landscaping and other improvements within the public rights of way adjacent to the parcel. Similar improvement conditions are required on the parcel adjacent to the Grand Coast Resort Hotel parcel, the site for a planned future hotel development. MF was further permitted to construct a pedestrian overcrossing spanning Pacific Coast Highway between the Grand Coast Resort Parcel and the City Beach parking lot in accordance with plans and specifications submitted by MF and approved by t.�e City and Caltrans. The overcrossing is to be substantially constructed as described in City Conditional Use Permit 98-53 and Variance 98-22 as approved on January 26, 1999. The Orange County Sanitation District (OCSD) holds an approximate 30-foot wide non- exclusive easement for public sewer purposes located across the property owned by the City of Huntington Beach, which is developed with a beach parking lot. The OCSD currently O-Nns and maintains a 54-inch diameter underground sewer within the easement area. A 01-003 Feb 20 Dysart (Mayer Financial) -3. 218101 11:48 AM �-J REQUEST FOR ACTTOr ) MEETING DATE: February 20, 2001 DEPARTMENT 1D NUMBER:PW-01-003 portion of the pedestrian overcrossing, consisting principally of a landing structure containing stairs and an elevator, is planned to be constructed over and upon a portion of the easement area and pipeline. An agreement between the City of Huntington Beach, the OCSD and MF is presented herewith which sets forth the terms, conditions, and obligations of the respective parties involving the installation, maintenance, repair, and replacement of the pedestrian overcrossing improvements within the sewer easement and the protection of -the existing underground sewer pipeline. The OCSD Board approved the agreement on January 24, 2001. Under the terms of the OCSD Agreement, MF shall indemnify, defend and hold harmless the OCSD from and against any and all claims, liabilities, and losses for personal injury or death, property damage, economic loss, and administrative and judicial fines and penalties, including without limitation reasonable attorneys' fees and litigation expenses arising out of either of the following: (i) the failure of MF to timely perform any of its obligations set forth in the OCSD Agreement; or (ii) any damage to, interference with or interruption of the operation of the sewer transmission pipeline that is proximately caused by the acts or omissions of MF under the OCSD Agreement. The City agrees to assume MF's indemnification obligation to OCSD, but only after MF fails to perform its indemnification obligation. Pursuant to the License Agreement and the OCSD Agreement, MF shall reimburse OCSD for any costs incurred by OCSD in the removal of any portion(s) of the Pedestrian Overcrossing Landing and for any additional cost incurred by OCSD to repair, reconstruct, andfor replace the Pipeline when such additional costs are attributable to the existence of the Pedestrian Overcrossing Landing. Further, any costs to reconstruct the Pedestrian Overcrossing Landing following the removal of any portion(s) by OCSD shall be the responsibility of MF pursuant to the License Agreement and the OCSD Agreement. Notwithstanding the foregoing, City agrees to reimburse OCSD for the costs in the event that MF fails to reimburse OCSD. The City of Huntington Beach entered into an amended and restated Development Agreement (DA) and the Redevelopment Agency entered into an amended and restated Disposition and Development Agreement (DDA) with MF for development of the Grand Coast Resort Hotel project including a pedestrian overcrossing of Pacific Coast Highway. MF is permitted to construct and shall be responsible for all costs to install, maintain, repair, and replace all facilities necessary for the pedestrian overcrossing. Pursuant to Sections 3.1.3.7 and 4.3.3.1 of the DA, the City agreed to work with MF to obtain the approvals necessary to construct the pedestrian overpass with the costs thereof borne by MF. Accordingly, the City is functioning as the project sponsor in the processing of the project for approvals with Caltrans and for the construction and funding of the overcrossing improvements. Caltrans will become the owner of the pedestrian overcrossing within the State highway right-of-way upon its completion and will maintain, at State expense, the portions of the structure located within State highway right of way, exclusive of the bridge deck surfacing and lighting. The City will maintain, at City expense, the top of the bridge deck surface, all other portions of the structure above the concrete deck surface including all 01-003 Feb 20 Dysart (Mayer Financial) -4- 218101 11:48 AM �-) REQUEST FOR ACTIOK-) MEETING DATE: February 20, 2001 DEPARTMENT ID NUMBER:PW-01-003 lighting, and the portions of the structure outside the State right of way, which includes a landing structure containing stairs and an elevator located within the City Beach parking lot. The City's obligations are in turn assumed by MF pursuant to the DA and DDA and the License Agreement. A License Agreement between the City and IAF as presented herewith provides for landscaping and other public improvements, including the pedestrian overcrossing, in the public right of way. The agreement also provides that MF assume all responsibility, at no cost to City, for installing, maintaining, repairing, and replacing the pedestrian overcrossing facility including but not limited to the elevator, lights, stairways, connecting walkways, and bridge. MF will perform and assume at no cost to City all obligations specified in the Caltrans Cooperative Agreement No. 12-375 for Contract Administration and Construction involving construction and funding of the overcrossing. MF will further agree to perform and assume at its sole cost and expense any and all expense and all of the City's liabilities, obligations and responsibilities to the OCSD which arise out of or are related to the agreement entered into by the City, MF and OCSD relating to the installation, maintenance, and repair of the pedestrian overcrossing improvements. In the Second Implementation Agreement to the Amended and Restated Disposition and Development Agreement (DDA) with MF, which was approved by the Redevelopment Agency on February 5, 2001, the Agency and MF approved amendments to the DDA and the First Implementation Agreement (Existing Agreement) to provide that (1) the failure by the ground lessee of Parcel A to timely perform any of its material obligations set forth in the License Agreement shall constitute a Default under the Parcel A Lease, and upon the conveyance of the long-term lease of Parcel C pursuant to Article 200 of the Existing Agreement, the failure by the ground lessee of Parcel C to timely perform any of its material obligations set forth in the License Agreement similarly shall constitute a Default under the Parcel C Lease. The approval of these amendments provides the City with an extra measure of protection against MF failing to perform any of its obligati ons with OCSD. In connection with the development of the Waterfront Hilton parcel, the ground lessee (Waterfront Construction No. 1) was required to install, maintain and repair certain landscaping and other improvements in the public rights of way adjacent to the Waterfront Hilton Parcel subject to the terms and obligations of a license agreement between the City and Waterfront Construction No. 1 (WC) entered into August 30, 1995. By this agreement, Waterfront Hilton (WH), as the successor in interest to Waterfront Construction No. 1 as ground lessee of the Waterfront Hilton parcel, desires to assume all of WC's obligations under the prior license agreement, and WH and City desire to terminate the prior license agreement from the effective date of this new license agreement. In the License Agreement, the City Attorneys standard provision that each party pays its own attorney's fees has been replaced by a prevailing party attorney's fees provision. (See Paragraph 30 of the License Agreement.) In other words, the prevailing party in a dispute under the License Agreement will receive its attorney's fees, expert witness fees and expenses from the other party. The reason for this change is because the City, as opposed 01-003 Feb 20 Dysart (player Financial) -5- 218f41 11*48 AM n REQUEST FOR ACTIO0 MEETING DATE: February 20, 2001 DEPARTMENT ID NUMBER: PW-01 -003 to the Licensees, is the likely party to try to enforce the terms of the License Agreement. Since almost all of the obligations to perform are imposed on the Licensees, it is more likely that the City will have to bring litigation for a breach of the License Agreement than the Licensees will, and in such a situation, it would be to the City's advantage to have a prevailing party attorney's fees clause. The License Agreement includes a provision for a deductible or self -insured retention of one hundred thousand dollars ($100,000) for the general liability insurance of any licensee. The amount of the deductible or self -insured retention shall increase as such times as there are increases in the policy limits, provided that the percentage increase shall not exceed the percentage increase in the Consumer Price Index since the last adjustment. The Licensees have agreed to provide the City with ten million dollars ($10,000,000) in coverage under the general liability insurance policy. In addition, the Licensees have agreed to fully protect the City and Redevelopment Agency as if the policy does not contain any deductible or self - insured retention. In addition, this is the same amount of deductible in the following: Existing Waterfront Hilton parcel Lease Agreement, Interim Short -Term Lease for Future Hotel Site Parcel, and the Form of Ground Lease for Ground Coast Parcel per the Amended and Restated Disposition and Development Agreement. MF is not currently the Ground Lessee of the Grand Coast Resort Parcel (See Recital B of the License Agreement and Recital C of the OCSD Agreement). Therefore, the License Agreement and the OCSD Agreement shall be approved subject to the subsequent execution and recording of the ground lease agreement for the Grand Coast Resort Parcel. The effective date for approval of the License Agreement and the OCSD Agreement shall be the date of approval for the ground lease agreement. Environmental Status: The pedestrian overcrossing was included in the Supplemental Environmental Impact Report No. 82-2, certified in 1988, and the Addendum to SEIR 82-2 approved in September 1998. Attachment(s)• License Agreement to Provide Landscaping and Other Improvement in the Public Right of Way 2. Cooperative Agreement No. 12-375, for Contract Administration and Construction of a Pedestrian Overcrossing of Pacific Coast Highway 3 Agreement Involving the Installation of a Pedestrian Overcrossing 4 Application for Insurance Requirement Waiver or Modification RCA Author: Dysart:jm 01-003 Feb 20 Dysart (Mayer Financial) -6- 2/8/01 11:48 AM 1 STAM OF CAL[FGR.NIA - BUSINESS A%1) TRAT` 0TA71ON AGENCY ( y GRAY DAVIS. Goumm A/, DEPARTMENT OF TRANSPORTATION-r`-_ .� D1S1tICT 12 334: 611CIT-LSONDRIVE, SUITE IDD cy IRV]+E. CA 92612 August 24, 2000 W. Robert Eichblatt City Engineer City of Huntington Beach PO Box 190 Huntington Beach, CA 92548 Dear Mr. Eichblatt: 12-Ora-1-KP 38.78 Ocean Grand Resort Pedestrian Overcrossing 12221-01350K Subject: Proposed Cooperative Agreement For Execution No. 12-375 Contract Administration and Construction Inclosed are five (5) originals of Cooperative Agreement No. 12-375 between STATE and City of H antington Beach for the above referenced project.. Please have all five (5) originals of the enclosed Agreement signed by the appropriate City officials and return them together with five (5) certified copies of the minutes excerpt adopted by the City approving the Agreement and authorizing its execution. After signatures by the appropriate STATE officials, you will be furnished a fully executed copy of the Agreement for your files. Sincerely, I&WVTAI�t� TAM NGUYEN, Chief Design Branch B Enclosures STATEMENT OF ACTION OF THE CITY COUNCIL CITY OF HUNTINGTON BEACH * ! ! 4 ! i -Indicates Portions of Ilse ltfeeting Not Included in the Statement of Action Council Chamber, Civic Center Huntington Beach, California Monday, February 20, 2001 An audiotape of the 5:00 p.m. portion of this meeting and a videotape of the 7:00 p.m. portion of this meeting are on file in the Office of the City Clerk. The regular meeting of the City Council and the Redevelopment Agency of the City of Huntington Beach was called to order at 5:00 p.m. CITY COUNCIUREDEVELOPMENT AGENCY ROLL CALL PRESENT. Green, Boardman, Cook, Julien Houchen, Garofalo, Dettloff, Bauer ABSENT: None !!i!A!flfA!lRi4!!•iRiitR#RilRR4RRRR4llRRRIRRRifRRiR#tAillRiiiiRf.iR4i4i4f R#iiRiifiiliiliiR/4RR#i#Riiiiii!!iR!• (City Council) Deferred From February 5, 2001 -Approved and Authorized Execution of Three Agreements: (1) A License Agreement with the Waterfront Hotel, LLC, and Mayer Financial, L.P., (2) A Cooperative Agreement No. 12-375 with CalTrans, and (3) An Agreement with Orange County Sanitation District and Mayer Financial, L.P. Involving Public Improvements and a Pedestrian Overcrossing (of Pacific Coast Highway) in Connection with the Proposed Grand Coast Resort Hotel Project Approved Modifications to Insurance Requirements (600.10) lift Riif#■Ri!lR44i#44i4Rlif#R#R;A!#RfiRRiifiRiifA!!iR•iRilii##lRRi#Rif!!!f!!!lRRRRi#R#ii4li!liiifiiiiiliilifi The following lists the eight motions made on the recommended action. lii#!lilt#ifll;fl;Ai#;AAlRfAAfflfRRR!!!!!!!##!!#RR!!R#!!!#i!;#f!f!!!iA#!ARlAR!##i!#ifi!!ilRffiRRlilAiiffAiif (City Council) Motion 2 of 8 - Approved as Amended with City Indemnification to Caltrans the Cooperative Agreement No. 12-375 Between the City and Caltrans for a Contract Administration and Construction of the Pedestrian Overcrossing of Pacific Coast Highway A motion was made by Bauer, second Green to approve as amended - with City Indemnification to CalTrans - a Cooperative Agreement No. 12-375 (Attachment No. 2) behveen CalTrans and the City of Huntington Beach for Contract Administration and Construction of the Pedestrian Overcrossing of Pacific Coast Highway; and authorize the Mayor and City Cleric to execute same - see motion #7 below. The motion carried by the following roll call vote: AYES: Green, Julien Houchen, Dettloff, Bauer NOES: Boardman, Cook ABSENT: None ABSTAIN: Garofalo #IRRf##*#A#RR#RtRRR##!*RRR#*iAtRA##*R#f#ltltt#R#*RR#}}##A}iRR#*!R!R!!!litRRA#!#!4illtRt#lARR#R}#}fRi!#flRffft! (City Council) Motion 7 of 8 — Authorized Mayor and City Cleric to Execute Three Agreements in Substantially the Same Form and with Effective Dates Provided: (1) A License Agreement with the Waterfront Hotel, LLC, and Mayer Hnanclal, LP., (2) A Cooperative Agreement No. 12-375 with CalTrans, and (3) An Agreement with Orange County Sanitation District and Mayer Financial, LP. Involving Public Improvements and a Pedestrian Overcrossing (of Pacific Coast Highway) in Connection with the Proposed Grand Coast Resort Hotel Project A motion was made by Bauer, second Green to authorize the Mayor and City Clerk to execute the above -referenced agreements (Attachment Nos.1, 2, and 3) in substantially the same form and upon approval of the City Attomey, on behalf of the City with the effective date of the license Agreement titled License Agreement to Provide Landscaping and Other Public Improvements in Public Right of Way (Attachment No.1) and the OCSD Agreement titled Agreement Involving the Installation of a Pedestrian Overcrossing (Attachment No. 3) being the date of approval of the ground lease for the Grand Coast Resort Hotel parcel. The motion carried by the following roil call vote: AYES: Green, Julien Houchen, Dettloff, Bauer NOES: Boardman, Cook ABSENT: None ABSTAIN: Garofalo #RRR#RlA�FlRRlRftRlRlRRRRi#ii#!i!R#illiffii!#i#RRi#i#Ri!##i#R#tfR##!#!!!if!###iR#R!R#iiiti#!!i!!llHifiii##!# Adjournment — City Council/Redevelopment Agency Mayor Garofalo adjourned the regular meetings of the City Council and the Redevelopment Agency of the City of Huntington Beach at 12:30 a.m. to Monday, March 5, 2001 at 5.00 p.m., in Room B-8, Civic Center, 2000 Main Street, Huntington Beach, California. ATTEST: /s/ Connie Brockway City Clerk/Clerk is/ Connie Brockway City Clerk and ex•officio Clerk of the City Council of the City of Huntington Beach, California lsl Pam .Julien Houchen !'Mayor Z i STATE OF CALIFORNIA } County of Orange } ss: City of Huntington Beach ) I, Connie Brockway, the duly elected City Clerk of the City of Huntington Beach, California, do hereby certify that the above and foregoing is a true and correct Statement of Action of the City Council of said City at their regular meeting held on February 20, 2001. Witness my hand and seat of the said City of Huntington Beach this 13'h day of March 2001. /s/ Connie Brockway City Clerk and ex-officio Clerk of the City Council of the City of Huntington Beach, California