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HomeMy WebLinkAboutOlson Real Estate Group and Pacific City Hotel, LLC - 2013-12-16Dept. ID ED 13-42 Page 1 of 2 Meeting Date: 12/16/2013_ �ooyov&-3 7-0 MEETING DATE: 12/16/2013 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Ken Domer, Assistant City Manager SUBJECT: Approve and authorize execution of a Assignment and Assumption Agreement for the Pacific City Hotel Project with Olson Real Estate Group and approve the Release of Affordable Housing Covenants on the Pacific City Retail and Hotel parcels Statement of Issue: The City Council is requested to approve the Assignment and Assumption Agreement for construction and operation of the Pacific City Hotel project. Olson Real Estate Group is partnering with Pacific City Hotel, LLC to develop and operate the Pacific City Hotel. In addition, release of the Affordable Housing Agreement from the retail and hotel parcel is requested. Financial Impact: There is no fiscal impact with the approval of the Agreement. Recommended Action: A) Approve the "Assignment and Assumption Agreement' between Olson Real Estate Group and Pacific City Hotel, LLC and the City of Huntington Beach; and, B) Approve "Release of Agreement Containing Covenants Affecting Real Property (Including Affordable Rental and/or Sale Restrictions);" and,, C) Authorize the Mayor and City Clerk to sign the Agreements. Alternative Action(s): Do not approve the Assignment/Release and direct staff as necessary. Analysis: In September 17, 2012, the City Council approved a Development Agreement ("DA") with 21002 HB, LLC (Crescent Heights) regarding the Pacific City Project. As part of the DA, the City Council provided for the sale of the retail/hotel parcels to DJM Acquisition Group. On June 3, 2013, the City Council approved sale of the hotel parcel to R.D. Olson. The DA placed Affordable Housing covenants on the residential project, including on the retail and hotel parcel due to the timing of the adoption. The affordability covenant should Item 21. - 1 HB - - Dept. ID ED 13-42 Page 2 of 2 Meeting Date: 12/16/2013 not be included on the retail/hotel parcel, as there are no places to build housing on these parcels. The City Council is being asked to approve the Release of the Covenants on these two parcels. R.D. Olson has formed a joint venture with Pacific Hospitality Group to develop and operate the Pacific City Hotel. The name of the new joint venture entity and owner of the project will be Pacific City Hotel, LLC, a 50/50 venture between R. D. Olson and Pacific Hospitality Group. Pacific Hospitality Group, LLC and R.D. Olson are both high -quality hotel developers and operators. Based upon review of the firm's Statement of Qualifications, Pacific Hospitality Group, LLC, over the last several years has focused on AAA, four -diamond resort properties. They have established an award -winning collection of independent hotels aptly named "Heritage Collection." Pacific Hospitality includes the acquisition and reposition of Estancia La Jolla Hotel & Spa in La Jolla, the Balboa Bay Resort in Newport Beach, and Bacara Resort & Spa in Santa Barbara. The Assignment and Assumption Agreement ensures that the portions of the DA that relate to the hotel parcel will be carried out by the newly formed Pacific City Hotel, LLC. This includes the development standards, delay fee obligations, and maintenance obligations. The hotel parcel will be developed and operated at a minimum of a three -star hotel. The Pacific City Hotel conceptual development plans have been submitted to the City. Environmental Status: Not Applicable Strategic Plan Goal: Enhance economic development Attachment(s): 1) Assignment and Assumption Agreement 2) Release of Agreement Containing Covenants Affecting Real Property (including Affordable Rental and/or Sale Restrictions) HB -319- Item 21. - 2 2 _ c a 5: Y:�'rNi'm ?` v i RECORDING REQUESTED BY FIRST AMERICAN TITLE CO. NATIONAL COMMERCIAL SERVICES - $?8025- gC OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Attn: Assistant City Manager Recorded in Official Records, Orange County Hugh Nguyen, Clerk -Recorder III I I j I III jj IIJ I J III III 1$1 II I I II I I I II 1151.00 *$ R 0 0 0 6 4 0 2 9 8 9$ 20130007044431:49 pm 12J23113 19 405 A31 A38 F14 12 0.00 0.00 0.00 0.00 33.00 0.00 0.00 0.00 Space Above this Line Reserved for Recorder's Use ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made as of /eL , 2013 (the "Effective Date"), by and among Olson Real Estate Group, Inc., dealiformia corporation ("Assignor" or "Olson Real Estate Group, Inc."), and Pacific City Hotel, LLC, a Delaware limited liability company ("Assignee"), and the City of Huntington Beach ("City"). RECITALS A. The City entered into a Development Agreement -dated as of August 20, 2012 with 21002 HB, LLC, a Delaware limited liability company ("21002"), which was recorded September 18, 2012, as Instrument No. 2012000545746 in the Official Records of the County Recorder for Orange County, California (the "Development Agreement"). The Development Agreement is incorporated herein by this reference as though fully set forth herein. The Development Agreement as used herein shall mean, refer to and include the Development Agreement, as well as any riders, exhibits, addenda, implementation agreements, amendments and attachments thereto (which are hereby incorporated herein by this reference) as well as other documents expressly incorporated by reference in the Development Agreement. Capitalized terms not defined herein shall have the meanings ascribed to them in the Development Agreement. B. The Development Agreement grants certain rights, duties and obligations (the "Rights", "Duties" and "Obligations") with respect to the development and improvement of the property ("Property") described as Lots 1, 2 and 3 of Tract No. 16338 as shown on a map filed in Book 893, Pages 7-12, inclusive, of Miscellaneous Maps, records of Orange County, California (the "Tract Map" ). 104009.docx C. Paragraphs 17(e) and 17(f) of the Development Agreement describe the assignment of Rights, Duties and Obligations under the Development Agreement. D. PC Group Retail, LLC, a California limited liability company ("PC Group Retail, LLC"), purchased Lots 2 and 3 of the Tract Map from 21002 on November 27, 2012 by means of a Grant Deed recorded November 27, 2012, as Instrument No. 2012000729574 of the Official Records of the County Recorder for Orange County, California. Pursuant to a General Assignment executed by 21002, 21002 assigned to PC Group Retail, LLC all right, title and interest of 21002 in and to the Development Agreement and all Rights, Duties and Obligations under the Development Agreement as they pertain and relate to Lots 2 and 3 of the Tract Map (specifically excluding obligations relating to the Affordable Housing Agreement). By its acquisition of Lots 2 and 3 of the Tract Map, PC Group Retail, LLC assumed all Rights, Duties and Obligations under the Development Agreement as they pertain and relate to Lots 2 and 3 of the Tract Map (specifically excluding obligations relating to the Affordable Housing Agreement). E. PC Group Retail, LLC and Olson Real Estate Group, Inc. entered into that certain Amended and Restated Purchase and Sale Agreement and Joint Escrow Instructions dated as of March 1, 2013 (the "Hotel Parcel Purchase Agreement"), pursuant to which PC Group Retail, LLC agreed to sell Lot 3 of the Tract Map to Olson Real Estate Group, Inc. F. Pursuant to the provisions of the Hotel Parcel Purchase Agreement, PC Group Retail, LLC has completed a lot line adjustment between Lot 2 and- Lot 3, which increased the size of Lot 2 to approximately 7 acres and reduced the size of Lot 3 to approximately 3.49 acres. The lot line adjustment was completed pursuant to that certain Lot Line Adjustment No. 2013- 002, which was recorded November 24, 2013, as Instrument No. 2013-647256, Official Records of Orange County, California. Lot 2 of the Tract Map, as adjusted by the lot line adjustment is hereinafter referred to as the "Retail Parcel", and Lot 3 of the Tract Map, as adjusted by the lot line adjustment is hereinafter referred to as the "Hotel Parcel". A copy of the revised legal description of the Hotel Parcel is attached hereto as Exhibit A. G. On 6 3 , PC Group Retail, LLC and Olson Real Estate Group, Inc. entered into an Assignment and Assumption agreement whereby PC Group Retail assigned to Olson Real Estate Group all of its Rights, Duties and Obligations under the Development Agreement as they pertain and relate to the Hotel Parcel. H. R.D. Olson and Pacific Hospitality Group have formed a joint venture to develop and operate the Pacific City Hotel. The name of the new joint venture entity is Pacific City Hotel, LLC, a Delaware limited liability company ("Pacific City Hotel, LLC"). Olson Real Estate Group, Inc. has assigned and transferred all of its right, title and interest in the Hotel Parcel Purchase Agreement to Pacific City Hotel, LLC. Olson Real Estate Group, Inc., would like to assign all of its Rights Duties and Obligations as they pertain and relate to the Hotel Parcel (specifically excluding obligations relating to the Affordable Housing Agreement) to Pacific City Hotel. 104009.docx 2 G. Assignor desires to assign to Assignee, and Assignee desires to accept and assume, all of Assignor's Rights, Duties and Obligations under the Development Agreement as they pertain and relate to the Hotel Parcel. Pursuant to Paragraph 17(e) of the Development Agreement, the City must approve the assignment and transfer of Assignor's Rights, Duties and Obligations to Assignee. H. City acknowledges that Assignor is not currently in default under the Development Agreement. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Assignor and Assignee hereby agree as follows: 1. Assignment. Effective as of the Effective Date, Assignor hereby assigns, transfers and conveys all of the Rights, Duties and Obligations under the Development Agreement relating or pertaining to the Hotel Parcel (specifically excluding obligations relating to the Affordable Housing Agreement) to Assignee. 2. Acceptance and Assumption. Assignee hereby accepts the foregoing assignment of the Rights, Duties and Obligations from Assignor and assumes all of the Duties and Obligations under the Development Agreement pertaining or relating to Lot 3 of the Tract Mapthe Hotel Parcel (specifically excluding obligations relating to the Affordable Housing Agreement) arising from and after the Effective Date of this Assignment. Assignor and Assignee acknowledge that such assignment and acceptance shall relieve Assignor of its duty to comply with the Duties and Obligations under the Development Agreement with respect to the Hotel Parcel. Assignee expressly and unconditionally assumes all the Duties and Obligations of Assignor under the Development Agreement and the Project approvals with respect to the Hotel Parcel and Assignee agrees to be bound thereby in accordance with the terms thereof and to perform all of the Duties and Obligations in accordance with the Development Agreement and such Project approvals that are applicable to the Hotel Parcel. 3. Consent to Assignment and Assumption. In reliance upon the assumption by Assignee of all Duties and Obligations under the Development Agreement with respect to the Hotel Parcel pursuant to the foregoing, the City does hereby consent to and approve of the assignment of the Rights, Duties and Obligations under the Development Agreement pertaining or relating to the Hotel Parcel (specifically excluding obligations related to the Affordable Housing Agreement) by Assignor to Assignee. Approval thereof by the City shall not be construed to relieve or release 21002 or PC Group Retail, LLC from its respective duty to comply with any of its Duties and Obligations under the Development Agreement as to the other portions of the Property and Project approvals nor to relieve or release 21002; PC Group Retail, LLC, a California limited liability company or Assignor from its duty to comply with any of its Duties and Obligations under the Development Agreement pertaining or relating to Lot 3 of the Tract Map. 4. Assignee Address. The principal address of Assignee for purposes of the Development Agreement is as follows: 104009.docx Pacific City Hotel, LLC 2532 Dupont Drive Irvine, California 92612 5. Miscellaneous. (a) This Assignment shall be determined in accordance with and governed by the laws of the State of California. (b) This Assignment may be executed in counterparts, each of which shall be deemed an original and which, when taken together, shall constitute a complete instrument. (c) Each party agrees to perform any further acts, and to execute and deliver any further documents that may be reasonably necessary or required to carry out the intent and provisions of this Assignment and the transactions contemplated hereby. (d) This Assignment shall bind and inure to the benefit of the respective heirs, personal representatives, grantees, successors and assigns of the parties hereto. IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be signed by their duly authorized officers as of the day and year first written above. ASSIGNOR: OLSON REAL ESTATE GROUP, INC., a California corporation By: A Robert D. Olson Its: President a ASSIGNEE: PACIFIC CITY HOTEL, LLC, a Delaware limited liability company By: Pacific City Investments, LLC, a Delaware limited liability company By: 4- a"QV�Z— Robert D. Olson, Manager M. Timothy R. Busch, Manager [City signature continued on following page] 104009.docx 4 Pacific City Hotel, LLC 2532 Dupont Drive Irvine, California 92612 5. Miscellaneous. (a) This Assignment shall be determined in accordance with and governed by the laws of the State of California. (b) This Assignment may be executed in counterparts, each of which shall be deemed an original and which, when taken together, shall constitute a complete instrument. (c) Each party agrees to perform any further acts, and to execute and deliver any further documents that may be reasonably necessary or required to carry out the intent and provisions of this Assignment and the transactions contemplated hereby. (d) This Assignment shall bind and inure to the benefit of the respective heirs, personal representatives, grantees, successors and assigns of the parties hereto. IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be signed by their duly authorized officers as of the day and year first written above. ASSIGNOR: OLSON REAL ESTATE GROUP, INC., a California corporation By: Robert D. Olson Its: President ASSIGNEE: PACIFIC CITY HOTEL, LLC, a Delaware limited liability company By: Pacific City Investments, LLC, a Delaware limited liability company By: Robert D. OIanager By: Timot Busch, Manager [City signature continued on following page] 104009.docx Date: / /3 ATTEST: it lerk - 3'oorc� t_. F n REVIEWED AND APPROVED AS TO FORM: City Attorney By: i► , ,/ City Attorney Jennifer McGrath THE CITY OF HUNTINGTON BEACH by: 14-111%clL i • r.- 104009.docx w l�. VD. �?:.4�. ..•�,. 9A ®, .. .Vd. �. hw�. ?..• '1}. ei?{.4, {,.•�'..•�l.'.C�} •�. :•�:.:1{.�1.4��L}.�..�.:?.. �. �..T1.5\. i:J1...; a{..'7A. S��%... � iD � .CJ 2• State of California County of Orange On December 17, 2013 before me, Kristy Mutch, A Notary Public , Date Here heart Name and Title of the Offer personally appeared Robert D. Olson Name(a) of Signers) KRISTY MUTCH Commission # 1928075 a -4-ea S Notary Public - California z z =% Orange County My Comm. Expires Apr 6, 2015 who proved to me on the basis of satisfactory evidence to be the person(jj whose nameM is/&K subscribed to the within instrument and acknowledged to me that he/WeAbM executed the same in histXackmilt authorized capacity(>ret), and that by his/N&.XVX signature(!} on the instrument the person(b), or the entity upon behalf of which the person(lo acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my h Ind and official seal. Place Note Seal Signature Notary Above ®g �gq gnatur of ublic ®r ! I®i IA Though the information below is not required by law, it may prove valuable to ns relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Assignment and Assumption Agreement Document Date: December 16, 2013 Number of Pages: 5 Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Robert D. Olson 0 Individual 0 Corporate Officer — Title(s): ❑ Partner — 0 Limited 0 General _ 0 Attorney in Fact o 0 Trustee Top of thumb here ;] Guardian or Conservator 0 Other: Signer Is Representing: Olson Real Estate Groin_ Pacific City Investments LLC Signer's Name: 0 Individual • Corporate Officer — Title(s): • Partner — 0 Limited O General IN 1911,121. • Attorney in Fact . • Trustee Top of thumb here O Guardian or Conservator 0 Other: Signer Is Representing: or 'd •b •U -yam 'Y - Y-y�-ll:'eY -N6'✓.•tom.-aFgtiri,5`% •t/ 'd 'd .d .� .yG.a, .ry .y .y .y .y..yy..� .y ✓y'`iS•s .y .. .y ✓'C/SLel,'.✓ 'rl '4' STATE OF CALIFORNIA ) ) SS. COUNTY OF ORANGE ) On Uee, 12 , Z o t 3 , before me, L, (f i? , L �� , a Notary Public, personally appeared i nt t±6 who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. LYNDA L. WONG COMM. #1905308 m % /1 W �� . Notary Publiof a' ifomia LO / L ORANGE COUNTY '° Conn. Ex OCT22 2014 SIGN TURF OF NOTA OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER [ ] INDIVIDUAL(S) [ ] CORPORATE OFFICER(S) [ ] PARTNER(S) [ ] LIMITED [ ] GENERAL [ ] ATTORNEY -IN -FACT [ ] TRUSTEE(S) [I SUBSCRIBING WITNESS [ ] GUARDIAN/CONSERVATOR [ ] OTHER: SIGNER IS REPRESENTING NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF NUMBER OF PAGES DATE OF DOCUMENT SIGNER(S) OTHER THAN NAMED ABOVE CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On �� "`��3 before me,Date Here Here Insert Nam and Title of the Officer personally appeared ��� eft/ 1-4 Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(4whose name(s) is/a*e subscribed to the within instrument and acknowledged to me that he/sfteLt4@y-executed the same in his/fir authorized capacity(ias), and that by his/MFAheir signature(s)-on the ROBIN ESTANfSLAU instrument the person(&), or the entity upon behalf of COMMISSION n 2017380 D which the persons} acted, executed the instrument. Z ' ^' ' " Notary Public - California ° by ORANGE COUNTY = I certify under PENALTY OF PERJURY under the laws My Comm Expires Apr 1.2017 of the State of California that the foregoing paragraph is true and correct. WITNESS my hand.and official Ssl., Signature Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: /.a — Signer(s) Other Than Named Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact • - ❑ Attorney in Fact ' ❑ Trustee Top of thumb here ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: 02007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotaryorg Item #5907 Reorder: Call Toll -Free 1-800-876-6827 G.LC CALIFORNIA ALL-PURPOSE State of California County of Robv_/4 aOn,5ct? t,s c�-t�,1A ��o�� before me,, Date Here Insert Name and Title of the Officer personally appeared _ �® At h " F/7 P7 n Name(s) of s) who proved to me on the basis of satisfactory evidence to be the person(s� whose name(&) Ware- subscribed to the within instrument and acknowledged to me that 4e/she/tk4oy executed the same in his/her/theif-authorized capacity(ies&), and that by bi6> her/tbei;-signature(&) on the instrument the person(€&), or the entity upon behalf of ROBIN ESTANISLAU which the person(s)-acted, executed the instrument. a COMMISSION # 2017380 n .Y NotaryPublic- California T I certify under PENALTY OF PERJURY under the laws ORANGE COUNTY of the State of California that the foregoing paragraph is My Comm Expires Apr.1.2017 true and correct. WITNESS my hand and official seal. Signature — Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: /"? - 4 - / -3 Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact • ❑ Trustee Top of thumb here ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: 9 RIGHTTHUMBPRINT OF SIGNER ©2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationaiNotaryorg Item #5907 Reorder: Call Toll -Free 1-800-876-6827 L--Z— EXHIBIT A LEGAL DESCRIPTION OF HOTEL PARCEL Real property in the City of Huntington Beach, County of Orange, State of California, described as follows: PARCEL 2 AS SHOWN ON EXHIBIT A ATTACHED TO THAT CERTAIN LOT LINE ADJUSTMENT NO.2013-002 RECORDED NOVEMBER 24, 2013 AS INSTRUMENT NO. 2013-647256 OF OFFICIAL RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING FROM THAT PORTION THEREOF INCLUDED WITHIN THE LAND DESCRIBED AS PARCELS 1 AND 2 IN DEED FROM PACIFIC ELECTRIC RAILWAY COMPANY, RECORDED SEPTEMBER 13, 1960 IN BOOK 5413, PAGE 449 OF OFFICIAL RECORDS, THE TITLE AND EXCLUSIVE RIGHT TO ALL OF THE MINERALS AND MINERAL ORES OF EVERY KIND AND CHARACTER, OCCURRING 500 FEET BENEATH THE SURFACE THEREOF, NOW KNOWN TO EXIST OR HEREAFTER. DISCOVERED UPON, WITHIN, OR UNDERLYING SAID LAND OR THAT MAY BE PRODUCED THEREFROM, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL PETROLEUM, OIL, NATURAL GAS AND OTHER HYDROCARBON SUBSTANCES AND PRODUCTS DERIVED THEREFROM, TOGETHER WITH THE EXCLUSIVE AND PERPETUAL RIGHT OF SAID GRANTOR, ITS SUCCESSORS AND ASSIGNS, OF INGRESS AND EGRESS BENEATH THE SURFACE OF SAID LAND TO EXPLORE FOR, EXTRACT, MINE, AND REMOVE THE SAME, AND TO MAKE SUCH USE OF SAID LAND BENEATH THE SURFACE AS IS NECESSARY OR USEFUL IN CONNECTION THEREWITH; AND OTHER USE THEREOF; WHICH USES MAY INCLUDE LATERAL OR SLANT DRILLING, DIGGING, BORING, OR SINKING OF WELLS, SHAFTS, OR TUNNELS TO OTHER LANDS NOT SUBJECT TO THOSE RESERVATION AND EASEMENTS; PROVIDED, HOWEVER, THAT SAID GRANTOR, ITS SUCCESSORS AND ASSIGNS, SHALL NOT USE THE SURFACE OF SAID LAND IN THE EXERCISE OF ANY OF SAID RIGHTS AND SHALL NOT DISTURB THE SURFACE OF SAID LAND OR ANY IMPROVEMENTS THEREON OR REMOVE OR IMPAIR THE LATERAL AND SUBJACENT SUPPORT OF SAID LAND OR ANY IMPROVEMENTS THEREON, AND SHALL CONDUCT NO OPERATIONS WITHIN 500 FEET OF THE. SURFACE OF SAID LAND. ALSO EXCEPTING THEREFROM THE SUBSURFACE BELOW 500 FEET MEASURED VERTICALLY FROM THE SURFACE. ALSO EXCEPTING THEREFROM ALL MINERALS, PETROLEUM, ASPHALT, BREA, OIL, GAS AND OTHER HYDROCARBON SUBSTANCES IN, UPON, OR UNDER, OR THAT MAY BE PRODUCED FROM, SAID LAND, TOGETHER WITH THE SOLE AND EXCLUSIVE RIGHT TO DRILL SLANTED WELLS FROM LOCATIONS ON OTHER LANDS INTO AND THROUGH, AND TO CONSTRUCT OR DEVELOP MINES, TUNNELS, SHAFTS, OR OTHER WORKS IN AND THROUGH THE SUBSURFACE OF 104009.docx SAID LAND FOR THE PURPOSES OF RECOVERING SAID RESERVED SUBSTANCES FROM SAID LAND OR RECOVERING LIKE SUBSTANCES FROM OTHER LANDS; PROVIDED, HOWEVER, THAT THE SURFACE OF SAID LAND SHALL NOT BE USED FOR THE EXPLORATION, DEVELOPMENT, EXTRACTION, OR REMOVAL OF SAID MINERALS OR SUBSTANCES FROM SAID LAND OR OTHER LANDS, AS RESERVED IN THE DEED FROM CITY OF HUNTINGTON BEACH, RECORDED JANUARY 13, 1960 IN BOOK 5051, PAGE 383 OF OFFICIAL RECORDS. ALSO EXCEPTING THE TITLE AND EXCLUSIVE RIGHT TO ALL OF THE MINERALS AND MINERAL ORES OF EVERY KIND AND CHARACTER OCCURRING 500 FEET BENEATH THE SURFACE THEREOF, NOW KNOWN TO EXIST OR HEREAFTER DISCOVERED UPON WITHIN OR UNDERLYING SAID LAND OR THAT MAY BE PRODUCED THEREFROM, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL PETROLEUM, OIL, NATURAL GAS AND OTHER HYDROCARBON SUBSTANCES AND PRODUCTS DERIVED THEREFROM, TOGETHER WITH THE EXCLUSIVE AND PERPETUAL RIGHT OF SAID GRANTOR, ITS SUCCESSORS AND ASSIGNS, OF INGRESS AND EGRESS BENEATH THE SURFACE OF SAID LAND TO EXPLORE FOR, EXTRACT,MINE AND REMOVE THE SAME AND TO MAKE SUCH USE OF SAID LAND BENEATH THE SURFACE AS IS NECESSARY OR USEFUL IN CONNECTION THEREWITH; AND OTHER USE THEREOF; WHICH USES MAY INCLUDE LATERAL OR SLANT DRILLING, DIGGING, BORING OR SINKING OF WELLS, SHAFTS OR TUNNELS TO OTHER LANDS NOT SUBJECT TO THOSE RESERVATION AND EASEMENTS; PROVIDED, HOWEVER, THAT SAID GRANTOR, ITS SUCCESSORS AND ASSIGNS SHALL NOT USE THE SURFACE OF SAID LAND IN THE EXERCISE OF ANY OF SAID RIGHTS AND SHALL NOT DISTURB THE SURFACE OF SAID LAND OR ANY IMPROVEMENTS THEREON OR REMOVE OR IMPAIR THE LATERAL OR SUBJACENT SUPPORT OF SAID LAND OR ANY IMPROVEMENTS THEREON, AND SHALL CONDUCT NO OPERATIONS WITHIN 500 FEET OF THE SURFACE OF SAID LAND, AS RESERVED IN THE DEED FOR PARCEL 2 FROM PACIFIC ELECTRIC RAILWAY COMPANY RECORDED SEPTEMBER 13, 1960 IN BOOK 5413, PAGE 446 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM THE SUBSURFACE BELOW A DEPTH OF 500 FEET VERTICALLY BELOW THE SURFACE OF THAT PORTION OF SAID LAND INCLUDED WITHIN THAT CERTAIN PARCEL OF LAND DESCRIBED AS "THIRD" IN THE DEED FROM THE HUNTINGTON BEACH COMPANY TO LOS ANGELES INTER -URBAN RAILWAY COMPANY RECORDED APRIL 9, 1907 IN BOOK 155, PAGE 260 OF DEEDS, RECORDS OF SAID ORANGE COUNTY. APN: 024-272-02 (Portion) 104009.docx i TA 4 t;HMENT _ AT dr. !I t;EGORDING REQUESTED BY BIAS T AMERICAN TITLE CO. vAJJONAL COMMERCIAL SERVICES OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Huntington Beach 2000 Main Street" Huntington Beach, CA 92648 Attn: City Manager Recorded in Official Records, orange County Hugh Nguyen, Clerk -Recorder �11 1 I 1111111 Idle 1111 11111 II 11111 II II Ill 1111 11111 II I III 1111 NO FEE *$ R 0 0 0 6 4 0 2 9 8 5$ 20130W704a 1:49 pm 12123113 19 405 R09 F13 8 0.00 o.00 0.00 0.00 21.00 0.00 0.00 0.00 NCC�- 58£�h 2=� - 5C Space Above this Line Reserved for Recorder's Use RELEASE OF AGREEMENT CONTAINING COVENANTS AFFECTING REAL. PROPERTY (INCLUDING AFFORDABLE RENTAL, AND/OR SALE RESTRICTIONS) THIS RELEASE OF AGREEMENT CONTAINING COVENANTS AFFECTING REAL PROPERTY ("Release") is entered into as of a1 , 2013, by and between the CITY OF HUNTINGTON BEACH, a charter city ("City" , and PC GROUP RETAIL, LLC, a California limited liability company ("PC Group"). RECITALS A. City entered into an Agreement Containing Covenants Affecting Real Property (Inctuding Affordable Rental and/or Sale Restrictions) with 21002 HB, LLC, a Delaware limited liability company, on August 20, 2012, which was recorded September 18, 2012 as Instrument No. 2012000545745 of the Official Records of the Orange County Recorder, State of California (the "Affordability Agreement"). B. At the time of execution and recordation of the Affordability Agreement, 21002 HB, LLC owned Lots 1, 2 and 3 of Tract No. 16338 as shown on a Map filed in Book 893, Pages 7 to 12, inclusive, of Miscellaneous Maps, Records of Orange County, California (the "Tract Map"). C. PC Group purchased Lots 2 and 3 of the Tract Map from 21002 HB, LLC and is the current owner of those lots. D. Lot 1 of the Tract Map is the Residential Parcel described in the Affordability Agreement and is the only Lot intended to be subject to the Affordability Agreement. Lot 2 of the Tract Map will be developed with commercial and retail improvements. Lot 3 of the Tract Map will be developed with a hotel. IC vDocuments and SettingsvmargaretvLocal SettingsvTemporary Internet Fi1esv0LK53vRe1ease of Agr Cont Cov -BEC 1 10713 E. The reference to Lots 1 2 and 3 of the Tract Map in the Affordability Agreement incorrectly suggested that the Affordability Agreement was binding upon and applicable to Lots 2 and 3 of the Tract Map. City and PC Group desire to correct the error. NOW, THEREFORE, in consideration of the premises described above, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. Incorporation of Recitals. The recitals set forth above are incorporated herein as if fully set forth at this point. 2. Release of Lots 2 and 3. City acknowledges and agrees that Lots 2 and 3 of the Tract Map are not intended to be subject to the Affordability Agreement and hereby forever releases Lots 2 and 3 from the Affordability Agreement. 3. Continued Application of Affordability Agreement to Lot 1. The Affordability Agreement is and shall continue to be binding upon Lot 1 of the Tract Map. 4. No Further Changes. Except as amended and modified herein, all of the terms and conditions of the Affordability Agreement are hereby ratified and confirmed. IN WITNESS WHEREOF, the City and PC Group have executed this Release as of the date first shown above. Date: la & Z, 2P 43 REVIEWED AND APPROVED AS TO FORM: CITY ATTORNEY By: Print Name: KANE, BALLMER & BERKMAN By: City Special Counsel CITY OF HUNTINGTON BEACH By: -2- E. The reference to Lots 1, 2 and 3 of the Tract Map in the Affordability Agreement incorrectly suggested that the Affordability Agreement was binding upon and applicable to Lots 2 and 3 of the Tract Map. City and PC Group desire to correct the error. NOW, THEREFORE, in consideration of the premises described above, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1. Incorporation of Recitals. The recitals set forth above are incorporated herein as if fully set forth at this point. 2. Release of Lots 2 and 3. City acknowledges and agrees that Lots 2 and 3 of the Tract Map are not intended to be subject to the Affordability Agreement and hereby forever releases Lots 2 and 3 from the Affordability Agreement. 3. Continued Application of Affordability Agreement to Lot_ 1. The Affordability Agreement is and shall continue to be binding upon Lot 1 of the Tract Map. 4. No Further Changes. Except as amended and modified herein, all of the terms and conditions of the Affordability Agreement are hereby ratified and confirmed. IN WITNESS WHEREOF, the City and PC Group have executed this Release as of the date first shown above. Date: 4204-3 REVIEWED AND APPROVED AS TO FORM: CITY ATTORNEY By: ` Pri ame: KANE, BALLMER & BERKMAN City Specia Co del CITY OF HUNTINGTON BEACH -2- PC GROUP RETAIL, LLC, a California limited liabilitv companv Date: �P�G� �, 3 By Na Its: -3- State of California County of S4/vn On , 2013, before me, 6-9 (r , a Notary Public, personally appeared ,v - , , who proved to me on the basis of satisfactory evidence to be the persoi (s whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sl lll-xpy executed the same in his/leer/thei'r authorized capacity( ), and that by his/he /thpp-signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s 'j acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and Official seal. Signature ';u (Seal State of California County of OEO UNGEN C00110-108-8-on N 20r6607 L4N - - 5 -- DK Nowt' Pic • cwwnis sam ®.bm cowft - 7 2017 On , 2013, before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and Official seal. Signature, (Seal M GOVERNMENT CODE 27361.7 I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: NAME OF NOTARY: Dede Georgen COUNTY WHERE BOND IS FILED: Santa Barbara DATE COMMISSION EXPIRES: Dec 7, 2017 COMMISSION NO.: 2048607 MANUFACTURERSNENDOR NO. NNA1 PLACE OF EXECUTION: IRVINE, CALIFORNIA DATE: December 23, 2013 BY: l-Mfl uV L U-VAQ�) FIRST AMERICAN TITLE INSURANCE COMPANY State of California County of On .t t� �ro , 2013, before me, /SQit' , a Notary Public, personally appeared %'�ia,✓who proved to me on the basis of satisfactory evidence to be the person(s4 whose name(&) Waft. subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/lerftlr& authorized capacity(iG4, and that by his/ signature( on the instrument the person(-, or the entity upon behalf of which the person(.&) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and Official seal. ROBIN ESTANISIAU a COMMISSION # 2017380 " Notary PublIC - California T y%O( �j ORANGE COUNTY ' MY Comm ExpiresApr. L 2017 �fiU�i (Seal Signature State of California County of vG Onyze_ 40 , 2013, before me, �✓' - 4e�7,5 a Notary Public, personally appeared (TD ��/—L4 rt r, ,who proved to me on the basis of satisfactory evidence to be the person(s-} whoseameis/aw-subscribed to the within instrument and acknowledged to me that 1w/she/khey executed the same in k4-s4her4kei-r authorized capacity4eR), and that by hi-s/her/tkeeir signature( on the instrument the person(, or the entity upon behalf of which the person(4) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and Official seal. ROBIN ESTANISLAU COMMISSION # 2017380 0 2 '+ - Notary Public - California Z ORANGE COUNTY �.:� rc.'7f/tc�✓C�►� • ' My Comm Expires Apr. 1. 2017 Signature (Seal