Loading...
HomeMy WebLinkAboutORANGE COUNTY SANITATION DISTRICT - 2001-02-20 Lo CITY OF HUNTINGTON BEACH L.-Aj 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK LETTER OF TRANSMITTAI, OF ITEM APPROVED BY THE CITY COU\CILI REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH DATE. November 2, 2001 TO- Orange County Sanitation District ATTENITION- Bob Chenowith Namc P.O. Box 8127 DEPARTMENT: street Fountain Valley, CA 92728-8127 REGARDING- Original Pedestrian City,State,Zip Overcrossing Installation Agreement See Attached Action Agenda Item n/a Date of Approval 2/20/01 Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item. Remarks: Connie Brockway City Clerk Attachments- Action Agenda Page Agreement x Bonds Insurance RCA Deed Other CC: Name Departmmt RCA Ag:c=cw Insurance Other Name Department RCA Agreemcct Insurance other Name Depuvnernt RCA AVr==t Laurance Other Nurse Department RCA AacgVcar Imuruce Other Name Depanment RCA Insurance {Toi a p h o n s:714-5 36-5 2Z7}` File Notes Office of the City Clerk Huntington Beach, California r � S 11' .1AIi eel I -7� ! NAME: DATE: TIME: PHONE NO. TO: ❑ Chris ❑ Liz ❑ Marie Conn Rebecca ❑ Pauline ❑ Evelyn Sue U Susan ❑ Jeffrey ❑ Virginia ❑ Kelly Called ❑ Call Back later on: Return Call Date Will Call Back Time "Yaw caz w&&-& YDy1 ,?» TELEPHONE MESSAGE AND REASON FOR CALL: CAA y y 4 r 6 � 1 W 5 �fj f� KY(A . bS =8 V I - AON IOOl � A� dyf, I d 0 'HO ts� At N O,t��!�i rt 0�� ��� �1 bTfi cd�o� Y CITY CLERK'S aRiG� i�i. This Document s electronically recorded by FIRST AMERIGAH TITLE IHSUk* COMPANY Fig lemerican Title Recorded in Official Records,County of Orange RECORDING REQUESTED BY AND Gary L. Granville,Clerk-Recorder WHEN RECORDED RETURN TO: HIMUII 1111H911111i lu 36.00 Clyly u'rnA . 20010232766 01:05pm 04118101 City o ttngton Beach 118 48 Al2 16 2000 Main Street 0.00 0.00 0.00 0.00 30.00 0.00 0.00 0.00 Huntington Beach, CA 92648 AGREEMENT INVOLVING THE INSTALLATION OF A PEDESTRIAN OVERCROSSING THIS AGREEMENT INVOLVING THE INSTALLATION OF A PEDESTRIAN !, OVERCROSSLtiG (the"Agreement") is entered into this ZO day of , 2001, y by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the fate of J California("City'), the ORANGE COUNTY SANITATION DISTRICT, a public agency of the State of California("Sanitation District") and MAYER FINANCIAL, L.P., a California limited partnership("tiff"). 0 RECITALS `V 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"). M r 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 J "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, 1981, in the Official Records of Orange County, California in Book 14288, Page 1436 (the "Grant of Easement"). Sanitation District is the successor-m- 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. v1F is the ground lessee of that certain real property located in the City of Huntington Beach, County of Orange, State of California known as 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 Orange County, 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 Public Right-of-Way between, among othgrs, `v1F and City dated RtZu,, Y , 2001 (the "License Agreement"), in connection with the development of the Grand Coast Resort Parcel, MF ;fuiiu2000agree:OCSD Pedestnan Overpass Agreement]Ir23;01,14.02 PM 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"). 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"B", 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: 1. Right to Construct and Maintain Pedestrian Overcrossing Landing Over and Upon the Pedestrian Overcrossing Portion of the Easement Area. Sanitation District hereby affirms subject to the terms of this Agreement the City's and NfF'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 Overcrossing, 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(;S) 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 Overcrossine Landing does not impair the physical structure of the Pipeline. Sanitation District shall provide City and NfF with its comments, if any, within 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 - g:Ifujiv2000agrec/OCSD Pedestrian Overpass Agrecmenv 1123i01/4:02 PM 2. Removal of Pedestrian Overcrossing Landin • 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 MF 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 W will not unreasonably withhold, to minimize any damage to the Pedestrian Overcrossing Landing, and, further, to minimize any associated access costs that might be attributable to the existence of the Pedestrian Overcrossing Landing. Pursuant to the License Agreement and this Agreement, MF 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 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 Sanitation District shall be the responsibility of W. pursuant to the License Agreement and this Agreement. Not-,vithstanding the foregoing, City agrees to reimburse Sanitation District for the costs set forth in this Paragraph in the event that NIF fails to reimburse Sanitation District. 3. MF's Acceptance of Ci _r s Obligations. Sanitation District acknowledges that, pursuant to the License Agreement and this Agreement, MF 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. MF 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 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: (1) the failure of MF 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 NfF hereunder. -3- g-'fupU2000agreeiOCSD Pedestrian O-crpass Agreement/1123101/4:02 Pt/'! Notwithstanding the foregoing, City agrees to assume MF'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 this Agreement, shall be delivered personally, or mailed, certified mail, return-receipt requested, postage prepaid, addressed to the other parties as follows: CITY: SANITATION DISTRICT: Real Estate Manager Board Secretary City of Huntington Beach Orange County Sanitation District 2000 Main Street P.Q. Box 8127 Huntington Beach, CA 92648 Fountain 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 Attomevs' Fees. in the event suit is brought by any parry to enforce the terms and provisions of this Agreement or to secure the performance hereof, each party shall bear its owm attorneys' fees. 7. Lawsuits or Claims. If Sanitation District files a lawsuit 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 MF 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 MF 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 writing by the ground lessor of such parcel in accordance with the provisions of the applicable ground lease, and provided that MF 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 term is defined in the License Agreement) to the same assignee in _4_ g-/fUju/2000agrceiOCSD Pedestrian Overpass Agreementsf/23:'01,14.02 PSI • 0 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: (1) 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,,vriting 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 acknowledge 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 NIF'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 MF 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 0%-ercrossing 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 MF, 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 other 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, Iimited or extended orally or by any agreement between or - 5- g.-.fuj1Y2000agrec/OCSD Pedestnan Overpass Agrcemend1/23/01'4:02 PM • i among the parties,unless such agreement is expressed in writing, signed and acknowledged 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 Oricinals. This Agreement will be executed in triplicate originals, one for each parry. 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: CITY: ORANGE COUNTY SANITATION CITY OF RUNT]INGTON BEACH, ISTRICT, a public agency of the State a municipal corporation of the State of Ca o is California B ,f Mayor 'r—0-e-ert r o cle- print name ATTEST: Its: Chair, Board of Directors By: c City Clerk APPROVED AS TO FORIM: print narde Its: Secretary, Board of Directors �'r .Z�o►� City Attorney Y13/6) APPROVED AS TO FORS : al ]INITIATED . ND APPROVED. At rneys for ge Co ' S itation District Director Administrative Services REVIEWED AND APPROVED: Ci Administrator [SIGNATURES CONTINUED ON NF..kT PAGE] -6-- g:!fujii;2000aeree.-OCSD Pedestrian Overpass Agreemend1/23)01/4-02 PM [SIGNATURES CONTINUED FROM PREVIOUS PAGE] MAYER FINANCIAL, L.P., a California limited partnership By: RLM Management, Inc., a California .corporation, its General Partner By: Robert L. May Chairman By: ARob Ma er, Jr., Secretary i APPROVED AS TO FO By: Attorneys for MAYER FINANCIAL, L.P. .7_ g:'fujiV2000agrcc/OCSD Pedestrian Overpass Agreement/1/23/0114:02 PM EXHIBIT "A" PAGE l OF 2 TICOR TITLE INSURANCE COMPANY OF CALIFORNIA DESCRIPTION: THAT PORTION OF FRACTIONAL SECTION 14, TOWNSHIP 6 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 51 , PAGE 14 OF MISCELLANEOUS MAPS, 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 5978, PAGE 91A, OFFICIAL RECORDS, (SAID RIGHT--OF-WAY LINE CITED IN SAID AMENDMENT TO LEASE AS NORTH 37 DEGREES- 54 MINUTES 51 SECONDS EAST 299.33 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; THENCE NORTHERLY ALONG SAID EASTERLY LINE OF SAID SECTION f4 TO A POINT OF INTERSECTION WITH THE SOUTHWESTERLY LINE OF A STRIP OF LAND DESCRIBED IN THAT CERTAIN CORPORATION GRANT DEED, RECORDED IN BOOK 159, PAGE 213 OF DEEDS, RECORDS OF SAID COUNTY, (SAID SOUTHWESTERLY LINE CITED IN SAID DEED AS NORTH 53 DEGREES 06 MINUTES WEST 2579.28 FEET, MORE OR LESS); THENCE NORTHWESTERLY ALONG SAID SOUTHWESTERLY LINE TO THE MOST SOUTHERLY SOUTHEASTERLY CORNER OF A PIECE OF PARCEL OF LAND DESCRIBED IN THAT CERTAIN INDENTURE, RECORDED IN BOOK 506, PAGE 448 OF OFFICIAL RECORDS; THENCE ALONG THE SOUTHERLY LINE THEREOF NORTH 68 DEGREES 56 MINUTES WEST 193.98 FEET TO THE POINT OF INTERSECTION WITH THE NORTHEASTERLY LINE OF THAT STRIP OF LAND DESCRIBED IN THAT CERTAIN INDENTURE RECORDED IN NOOK 139, PAGE 9 OF DEEDS, RECORDS OF SAID COUNTY♦ THENCE NORTHWESTERLY ALONG SAID NORTHEASTERLY LINE TO THE TRUE POINT OF BEGINNING. EXHIBIT "A" PAGE 1 OF 2 EXHIBIT "A" PAGE2OF2 t�Mhy\ 27A79 _�. � � (swe sarrfsrvr 3 HJY�9 .- ff ti i _ Property t L4V a� EXHIBIT "A" PAGE2OF2 EXHIBIT "B" • PAGE 1 OF 1 , OO° `a I � i Centerline of Pacific Coast Highway ; ___________ -------------------------r----- N 520 03'54'W -------------- I i 1,354.29' 1 r PACIFIC COAST HIGHWAY ;w flu C ZTC CURB C� r r I _ PROPERTY L1NE i I r 25'-0- l "Pipeline" "Easement"per Easement Agreement dated October 27, 1981, recorded "Pedestrian Overcrossing Portion "Pedestrian Overcrossing NovembCr 12. 1981,Bock 14288, of the Easement Area" Landing" Page 1436, Official Records of Orange County t� No Scale EXHIBIT "B" PAGE 1 OF 1 STATE OF CALIFORNIA ) } ss. COUNTY OF OeA�JG F ) On 2001, before me, ;.97 V C G Notary Public, personally appeared PA)n J-Uurd 6&tj1f IE/y personally known to me to be the person(s) whose name( is/am subscribed to the within instrument and acknowledged to me that he/she/*ey executed the same in his/ber/their authorized capacity(ies), and that by 4ifslher/their signature(s) on the instrument the person( or the entity upon behalf of which the personH acted, executed the instrument. Witness my hand and official seal. fl Notary kblic !' TEIZ; C 7 N ,5 Commission#1237815 [SEAL] 3 ±,� •� Notary Public-Cardormia Orange County my Comm.Bores ocr i 2 goo j STATE OF CALIFORNIA ) ) ss. COUNTY OF ) 1 `On r 2001, before me, o r C�- ! , Notary Public, personally appeared i' �ti K # T Z person lly known to me ( to be the perso (s)whose namdo)(/e subscribed to the within instrument and acknowledged to me that t e ei executed the same in+is+e authorized capacit�, and that by l erAir signatur (s on the instrument the person or the entity upon behalf of which the persois acted, executed the instrument. Witness my hand and official seal. Notary Public CORNA CwAuohar [SEAL) Commissron# 1 IP2773 NOtpry Public-Caiitorrlio Orange Co -.n y MYComm_�:n!Az j a,2002 STATE OF CALIFORNIA ) 615/019740-0003 169241.02 a04/03101 "5- 0 • ss. COUNTY OF ) On 1L 2001, before me, � 5 jAwtC-`� , Notary Public, personally appeared &CC L .Age'126. personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name islare subscribed to the within instrument and acknowledged to me that he/she4hey executed the same in hisAw&thLqr authorized capacity(iVs, and that by hisllrerAheir signature( on the instrument the person* or the entity upon behalf of which the personM acted, executed the instrument. Witness my hand and official seal. , Notary Public LINDA S. MORRISON .• Comm.11168569 [SEAL] NOTARY PUBLIC•CAUFORRIA N [SEAL] Orange COwt+( � NY Comm. E�p'ss lsn.13,2002 STATE OF CALIFORNIA ) } ss. COUNTY OF ORANGE ) On April 5 2001, before me, Jan Smith , Notary Public, personally appeared ROB RT T.- MAY_ER personally known to me ( to be the person( whose named is/ate subscribed to the within instrument and acknowledged to me that he/4he/4h" executed the same in hisAierllhei authorized capacity(iesj, and that by his,ihw4heis- signature(s-on the instrument the person( or the entity upon behalf of which the persons} acted, executed the instrument. Witness my hand and official seal. I — - — - - - - - -4, 10Comm # aiuo SMITH NOta PU IC on W Nolay Public-caiforr io Orange County Cann Egwes Apr 26.3702 [SEAL] 615?019740-0003 169241 02 a04/03n01 —6— GOVERNMENT CODE 2 7361. 7 l 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 a By: R GER C. E I M E R First American Title Insurance Company GOVERNMENT CODE 27361. 7 1 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: ROGER . REIMER First American Title Insurance Company GOVERNMENT CODE 27361. 7 I certify under the penalty of perjury that the rotary 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 - Z' .A A By: 4volrm ==WX6%W0 R GER REIMER First American Title Insurance Company GOVERNMENT CODE 27361. 7 l 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: #1 181340 Vendor Number: NNA 1 County where bond is filed: Orange Place of Execution: Santa Ana, California Date: April 17, 2001 By: ROGER I REIMER First American Title Insurance Company 1 M CITY OF HUNTINGTON BEACH 2000 MAIN STREET CALIFORNIA 92648 OFFICE OF THE CITY CLERK CONNIE BROCKWAY CITY CLERK LETTER OF TRANSMITTAL OF ITEM APPROVED BY THE CITY COUNQU REDEVELOP,NIEhT AGENCY OF THE CITY OF HliNTINGTON BEACH DATE-. October 10, 2001 TO: Orange County Sanitation District ATTENTION: Bob Chenowith Name P.O. Box 8127 DEPARTN ENT- Street Fountain Valley, CA 92728-8127 REGARDING= Pedestrian City-,State,Zip Overcrossing Installation See Attached Action Agenda item F-1 Date of Approval 2-20-01 Enclosed For Your Records Is An Executed Copy Of The Above Referenced Agenda Item. Remarks: G 0Oc•t4v Connie Brockway City Clerk Attachments- Action Agenda Page Agreement x Bonds Insurance RCA Deed Other CC: None Department RCA Agreement Insurance Other Name Depar[tsernt RCA Agreeretnt ImularKe Other Name Deparunrnt RCA Agreem"t Insurance Other Name Department RCA Aereement Laurance Other Name Department RCA Insurance (7MW phone:714-53"227) 7�ITY OF HUNTINGTON BEJ—ni 04 s'� MEETING DATE: February 20, 2001 DEPARTMENT ID ER: 1-001l /YJ4 1p o1 A0 C f Council/Agency Meeting Held: 0*--- k6 �V- Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied C�l'Cler ' Si nature Council Meeting a�—(e— February 20, 2001 Department ID Number: PW-01-003 CITY OF HUNTINGTON BEACH h, �F REQUEST FOR ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL SUBMITTED BY: RAY SILVER, City Administrator/Zc- �' = .�� PREPARED BY: ROBERT F. BEARDSLEY, Director of Public Works A? 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,Attachment(s) 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; 01-003 Feb 20 Dysart(Mayer Financial) -2- 2/8/01 11:48 AM REQUEST FOR ACTION* MEETING DATE: February 20, 2001 DEPARTMENT iD NUMBER:PW-01-003 fig r1D (2) Approve N Cooperative Agreement No. 12-375 between Caltrans and the City of Huntington Beach for Contract Admini tration and Construction of the Pedestrian Overcrossing of Pacific Coast Highway; w CITY tNNMWI 9CA71ort To (At- bNS ; (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 approval 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 the 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 owns 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 • REQUEST FOR ACTIOOO MEETING DATE: February 20, 2001 DEPARTMENT ID 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, and/or 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 0 REQUEST FOR ACTIOAS MEETING DATE: February 20, 2001 DEPARTMENT iD NUMBER:PW-0 1-003 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 MF 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 Attorney's 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(Mayer Financial) .5- 218101 11:48 AM 0 REQUEST FOR ACTIOA 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): City Clerk's Page Number . Description 1 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 Application for Insurance Requirement Waiver or Modification RCA Author. Dysart:jm 01-003 Feb 20 Dysart(Mayer Financial) -6- 218101 11:48 AM (14) February 20, 2001 - Council/Agency Agenda - Page 14 F. Administrative Items r \tom F-1. (City Council) Deferred From February 5, 2001 - Approve and Authorize 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- Approve Modifications to Insurance Requirements Communication from the Public Works Director submitting that the installation of certain public improvements in conjunction with development of the Grand Resort Hotel by Mayer Financial, L.P. requires approval of cooperative agreements with CalTrans and the Orange County Sanitation District (OCSD) involving the construction of a pedestrian overcrossing of Pacific Coast Highway, and a License Agreement between the City and Mayer Financial, L.P. 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. (A PowerPoint presentation titled Grand Coast Resort Hotel Project is included in the agenda packet.) -al- "Communication received from Dr. Jan D. Vandersloot dated February 5, 2001 Re: Issue: 1 Redevelopment of Property between the Waterfront Hotel and Beach Blvd. d6-0(-0 [Councilmember Garofalo recused himself due to a possible conflict of interest] f Recommended Action: Motion to: 1. Approve a License Agreement to Provide Landscaping and Other Public Improvements in Public Right of Way(Attachment No. 1), including a pedestrian overcrossing of Pacific Coast Highway in connection with the proposed Grand Coast Resort Hotel project and the Waterfront Hilton Hotel; and authorize the Mayor and City Clerk to execute same- see#7 below; [Approved 4-2-1 (Boardman, Cook No; Garofalo abstain)] and 2. Approve, as amended, a Cooperative Agreement No. 12-375 (Attachment No. 2) between 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 Clerk to execute same - see#7 below; W/City Indemnification to CalTrans [Approved 4-2-1 (Boardman, Cook No; Garofalo abstain)] and (Continued on the Next Page) (15) February 20, 2001 - Council/Agency Agenda - Page 15 3. Approve an Agreement Involving the Installation of a Pedestrian Overcrossing (Attachment No. 3) between the Orange County Sanitation District (OCSD), Mayer Financial, L.P., and City of Huntington Beach and authorize the Mayor and City Clerk to execute same - see#7 below; [Approved 4-2-1 (Boardman, Cook No; Garofalo abstain)] and 4. Approve a deductible or self-insured retention of$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; [Approved 4-2-1 (Boardman, Cook No; Garofalo abstain)] and 5. Approve the City's obligation to indemnify the Orange County Sanitation District (OCSD) in the event Mayer Financial L.P. fails to do so, for all claims or liabilities arising out of (1) the failure of Mayer Financial L.P. 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 Mayer Financial L.P.; [Approved 4-2-1 (Boardman, Cook No; Garofalo abstain)] and 6. Approve the City's obligation to reimburse OCSD, in the event Mayer Financial L.P. 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; [Approved 4-2-1 (Boardman, Cook No; Garofalo abstain)] and (Continued on the Next Page) (16) February 20, 2001 - COL it/Agency Agenda - Page 16 I'F 7. Authorize the Mayor and City Clerk to execute the above-referenced agreementsi (Attachment Nos. 1, 2, and 3) in substantially the same form and upon approval of the City Attorney, on behalf of the City with the effective date of the License I 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; [Approved 4-2-1 (Boardman, Cook No; Garofalo abstain)] and 8. Authorize the City Clerk to record 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) with the County Recorder after execution of the Ground Lease for the Grand Coast Resort parcel by Mayer Financial, L.P. [Approved 4-2-1 (Boardman, Cook No; Garofalo abstain)] KANE,.BALLMER & BERKMAN A uw CORPORATION 515 SOUTH FIGUEROA STREET,SUITE 1850 LOS ANGELES,CALIFORNIA 90071 TELEPHONE(213)W-0490 FAX(213)6254931 M "RAN�UM TO: David Biggs FROM: Murray Kane, Kathy Ng DATE: 4-3-01 RE: Conditions to Depositing Agency Money and Documents Into Escrow The Agency Money and the Agency Documents should be deposited into escrow only when the following have occurred: I. The escrow agent must sign and return an original copy of the recording instructions to the Agency and Mayer, evidencing its acceptance and agreement to comply with the terms and conditions of the instructions. ii. The Agency must be informed by Mayer that all other documents which must be deposited into escrow for this transaction have been fully executed and are ready to be deposited into escrow. iii. The Agency must approve the evidence of financing submitted by Mayer pursuant to the DDA. r March_, 2001 0 l VIA FACSIMILE AND OVERNIGHT EXPRESS Ms. Mickey Vandenberg Mr. Roger C. Reimer Escrow Officer Title Officer First American Title Insurance Company First American Title Insurance Company 1 First American Way 2 First American Way Santa Ana, California 92707 Santa Ana, California 92707 Re: JOINT ESCROW AND RECORDING INSTRUCTIONS RE AGENCY MATTERS Escrow No.: Title Order Nos.: OR-9934210 and OR-9934225 Dear Ms. Vandenberg and Mr. Reimer: This firm represents PCH Beach Resort, LLC, a California limited liability company ("PCH") and Mayer Financial, L.P., a California limited liability company ("MF"), in connection with the above-referenced escrow. This letter constitutes our finm's and the Redevelopment Agency of the City of Huntington Beach (the "Agency's") supplemental joint escrow and recording instructions in connection with the transactions described in Part I, Paragraph A(2) and Part 1, Paragraph B (together, the "Agency Matters"). Sections 104-107 and 201-212 of the DDA (defined in Part I.B., below) set forth the remainder of MF and Agency's joint escrow instructions; provided however, in the event of any inconsistcncics between these supplemental escrow instructions and the instructions contained in the DDA, the instructions in the DDA shall govern. For your ease in review, the following is a summary of the provisions of these instructions: [Insert Table of Contents Once Instructions are Finalized,] 223•'019740-0003 166275-01 a04103*1 Ms. Mickey Vandenberg Mr. Roger C. Reimer Error! Reference source not found. Page 2 Part I. DESCRIPTION OF TRANSACTIONS AND THE PARTIES AND DOCUMENTS RELATING THERETO. In connection with the above-referenced escrow, we have opened with you two (2) related title orders, as follows: A. Hotel Parcel. Order No. OR-9934210, regarding the real property described therein (the "Hotel Parcel"). Briefly, the Hotel Parcel closing will involve the formation of PCH, PCH's acquisition of a leasehold interest in the Hotel Parcel, and PCH's obtaining the financing necessary for the construction of a hotel and related appurtenances on the Hotel Parcel (the "Hotel Project"). In particular, in connection with the Hotel Parcel closing, the following transactions are taking place concurrently herewith: 1. Member Agreements. Grand Resort, LLC, a California limited liability company ("GR"), as managing member, Coast Beach, LLC, a Delaware limited liability company ("CB"), as member, and SPE PCH Beach Resort, Inc., a Delaware corporation ("SPE"), as member, are forming PCH for the purpose of, among other things, acquiring the leasehold interest in the Hotel Parcel and constructing and operating the Hotel Project. In connection with the formation of PCH, the acquisition of the leasehold interest in the Hotel Parcel and the construction, maintenance, and operation of the hotel thereon, MF, [Hyatt Corporation] ("HT"), and various entities that are affiliated therewith, are entering into those certain "Member Agreements" identified in Section _ of that certain letter dated of even date herewith, signed by Lori Sarner Smith, Esq. (the "Umbrella Instructions"). Fully executed originals of the Member Agreements will be deposited into escrow and shall be dealt with in accordance with the Umbrella Instructions [will Hyatt.have instructions:']. B. Agency A&cements. Pursuant to that certain Amended and Restated Disposition and Development Agreement dated September 14, 1989, as amended by that certain First Implementation Agreement to Amended and Restated Disposition and Development Agreement dated May 15, 2000, and that certain Second Implementation Agreement to Amended and Restated Disposition and Development Agreement dated February 5, 2001 (collectively, the "DDA"), Agency is demising to PCH a leasehold interest in the Hotel Parcel. In connection therewith, various parties are entering into the following agreements (collectively, the "Agency Documents"): 2231019740-0003 166275.01 a04/03101 Ms. Mickey Vandenberg Mr. Roger C. Reimer Error! Reference source not found. Page 3 a) "License Agreement": That certain License Agreement to Provide Landscaping and Other improvements in the Public Right- of-Way dated February 5, 2001, by and between the City of Huntington Beach (the "City"), The Waterfront Hotel, LLC and GR; b) "Pedestrian Overpass Agreement": That certain Agreement Involving the Installation of a Pedestrian Overcrossing dated February 20, 2001, by and between the City, the Orange County Sanitation District and GR. c) "Assignment Agreement": That certain Assignment and Assumption Agreement and Consent to Assignment, by and between MF and PCH; d) "Termination": That certain Termination of Leases, executed by Agency and MF [others?]; e) "Ground Lease": That certain Ground Lease by and between Agency and PCH; f) "Memorandum": That certain Memorandum of Lease and Right of First Refusal, executed by Agency and PCH; and g) [others' Additionally, in connection with the Hotel Parcel transaction, the Agency is depositing the sum of Eight Million and 001100 Dollars ($8,000,000.00) (the "Agency Money") in escrow, in accordance with Section (e) of the Schedule of Feasibility Gap Payments set forth as Attachment No. 8 to the DDA. The Agency Money and the Agency Documents will be deposited into escrow upon the satisfaction of the following condition, and once deposited, are to be dealt with in accordance with these Recording Instructions: I. You must sign and return an original copy of this letter to the Agency and MF, evidencing your acceptance and agreement to comply with the terms and conditions of this letter. 2. Loan Agreements. PCH is obtaining (i) a construction loan (the "Construction Loan") from Miller & Schroeder Investments Corporation, a Minnesota 2 2 310 1 97 40-OW3 166275 0 t 2003 3!U 1 Ms. Mickey Vandenberg Mr. Roger C. Reimer Error! Reference source not found. Page 4 corporation ("Construction Lender") in the principal amount of$85,000,000 in order to, among other things, develop and construct the Hotel Project and (ii) a loan (the "Bridge Loan") from GMAC Commercial Mortgage Corporation ("Take-Out Lender") in the principal amount of $85,000,000 in order to refinance the Construction Loan. In connection with the Construction Loan and the Bridge Loan, PCH and various entities that are affiliated therewith, are entering into those certain "Loan Documents" identified in Section _ of the Umbrella Instructions. Fully executed originals of the Loan Documents will be deposited into escrow and shall be dealt with in accordance with the Umbrella Instructions, the Construction Lender recording instructions as set forth in that certain letter dated 2001, executed by (the "Construction Lender Instructions"), and the Take-Out Lender recording instructions as set forth in that certain letter dated , 200 t, executed by (the "Take-Out Lender Instructions"). 3. General Contractor Agreement. GR and CB are executing that certain Promissory Note dated of even date herewith (the "PCL Note") for the benefit of PCL Construction Services, Inc., a Colorado corporation ("PCL"). Fully executed originals of the PCL Note and any other agreements relating thereto (collectively, the "PCL Documents") will be deposited into escrow and shall be dealt with in accordance with the Umbrella Instructions [will-other instructions deal w/ PCL Documents?].[We need a copy of this Note and related documentation] C. Residential Parcel. Order No. OR-9934225, regarding the real property described therein (the "Residential Parcel"). The Residential Parcel closing will involve the conveyance of fee title in and to the Residential Parcel by the Agency to MF pursuant to the DDA. In connection with the Residential Parcel closing, the Agency and PCH have executed that certain Grant Deed, of even date herewith(the "Residential Grant Deed"). The Residential Grant Deed is being deposited into escrow concurrently with the Agency Money and Agency Documents and, once deposited, is to be dealt with in accordance with these Recording Instructions. Part II. CONDITIONS TO HOTEL PARCEL CLOSING AND RECORDATION; DELIVERY OF AGENCY MONEY AND DOCUMENTS. A. Hotel Parcel Closing Conditions. You may proceed to close the Hotel Parcel transaction, in accordance with Part II, Paragraph B below, when each of the following conditions have been satisfied: 1. Delivery of Documents. You have received fully executed and, where applicable acknowledge, originals of the following: (i) the Agency Documents, (ii) the Residential Grant Deed, (iii) the Member Agreements, (iv) the Loan Documents, and (v) the PCL Documents. 223/0197404)003 166275.01&O4M3ro1 Ms. Mickey Vandenberg Mr. Roger C. Reimer Error! Reference source not found. Page 5 2. Delivery of Agency Money. You have received the Agency Money. 3. Delivery of Rents Statement and MF Rent Money. You have received a statement from the Agency (i) indicating that all payments under that Third Amended and Restated Lease dated April 28, 1989 by and between Agency and MF ("1989 Lease") have been paid by MF to Agency up to the date of closing or(ii) setting forth the pro-rated amount of rent due from MF to Agency under the 1989 Lease up to the date of closing. Pursuant to such statement, MF shall have deposited into escrow any funds owed to the Agency under the 1989 Lease ("MF Rent Money"). Please bill the Agency for any escrow or closing costs not covered by the MF Rent Money. In addition, any unused portions of the MF Rent Money should be promptly disbursed Agency after the closing. 4. Compliance with AnciIlary Recording_Instructions. You have fully complied with the conditions set forth in the Umbrella Instructions, the Construction Lender Instructions, and the Take-Out Lender Instructions. [Others?: Hyatt? PCL?] 5. Residential Parcel Closing. The Residential Parcel is ready to close concurrently with the Hotel Parcel. 6. Authorization. As a matter not to concern the Title Company, pursuant to the DDA, various conditions precedent must be satisfied before the Agency will release the Agency Money and demise to PCH the leasehold interest in the Hotel Parcel. ACCORDINGLY, YOU MAY NOT PROCEED WITH THE HOTEL PARCEL CLOSING UNTIL YOU HAVE RECEIVED TELEPHONIC AUTHORIZATION TO PROCEED FROM EACH OF THE FOLLOWING: a) Murray Kane, Esq. or Kathy Ng, Esq. of Kane, Ballmer& Berkman or Mr. David Biggs, with the Agency; and b) The undersigned or Steven K. Bone, with MF. B. Hotel Parcel Closing. When the conditions precedent set forth in Part II, Paragraph A above have been satisfied, you are hereby instructed to take the following actions in the following order, which actions must (except for the actions described in subparagraph nos. (1)(a), (3) and (4) below) occur on the same day. 1. Record the following documents, in the following order, in the Official Records of the County of Orange, State of California (the "Official Records"): 223101974O4W3 166275-01 a04/03/01 Ms. Mickey Vandenberg Mr. Roger C. Reimer Error'. Reference source not found. Page 6 a) The License Agreement. You are permitted to record the License Agreement up to 24 hours before the recordation of the remaining documents, described immediately below; b) The Pedestrian Overpass Agreement; c) The Assignment Agreement; d) The Termination; and e) The Memorandum. 2. Release the Agency Money to 3. As soon as reasonably practicable after the recordation of the applicable Agency Documents, deliver to of conformed copies of each of the recorded Agency Documents, showing the date of recording and the applicable instrument number thereon; 4. As soon as reasonably practicable after the Hotel Parcel closing, deliver to fully executed duplicate counterpart originals of the following documents: a) The Ground Lease; b) [others?]. IN ADDITION, YOU ARE FURTHER INSTRUCTED TO PROMPTLY ADVISE THE UNDERSIGNED AT 7141641-3451 AND KATHY NG AT 213/617-0480 UPON THE RECORDATION OF THE APPLICABLE AGENCY DOCUMENTS. Part 111. CONDITIONS TO RESIDENTIAL PARCEL CLOSING AND RECORDATION; DELIVERY OF DOCUMENTS. A. Residential Parcel Closing Conditions. You may proceed to close the Residential Parcel transaction concurrently with the Hotel Parcel transaction when each of the following conditions have been satisfied: 1. Closing of the Hotel Parcel. The conditions precedent to the Hotel Parcel closing, as set forth in Part 11, Paragraph A above, have been fully satisfied and those of the 22310 197a8.0003 166275 01 a04n1PW Ms. Mickey Vandenberg Mr. Roger C. Reimer Error! Reference source not found. Page 7 Agency Documents described in Part II, Paragraph (13)(1) above have been recorded in the Official Records in accordance with Part I1, Paragraph (13)(1) above. 2. Title Requirements. You have irrevocably committed and are able to issue in favor of MF, as fee owner of the Residential Parcel, and will promptly deliver to MF an ALTA Loan Policy of Title Insurance (1970 LP-10 Form) WITHOUT ANY CREDITORS' RIGHTS EXCLUSION issued by the Title Company (the "Residential Title Policy"), in exact conformance with the proforma title policy attached hereto as Exhibit "_" (the "Proforma"). 3. Authorization. As a matter not to concern the Title Company, pursuant to the DDA, various conditions precedent must be satisfied before the Agency will convey fee title to the Residential Parcel to PCH. ACCORDINGLY, YOU MAY NOT PROCEED WITH THE RESIDENTIAL PARCEL CLOSING UNTIL YOU HAVE RECEIVED TELEPHONIC AUTHORIZATION TO PROCEED FROM EACH OF THE FOLLOWING: a) Murray Kane, Esq. or Kathy Ng, Esq. of Kane, Ballmer& Berkman or Mr. David Biggs, with the Agency; and b) The undersigned or Steven K. Bone,with MF. B. Residential Parcel Ciosin . When the conditions precedent set forth in Paragraph III(A) above have been satisfied, you are hereby instructed to take the following actions in the following order, which actions must (except for the actions described in subparagraph nos. (2) and (3) below) occur on the same day as the Hotel Parcel closing: 1. Record the Residential Grant Deed in the Official Records; 2. As soon as reasonably practicable after the recordation of the Residential Grant Deed, deliver to of a conformed copy of the Residential Grant Deed, showing the date of recording and the applicable instrument number thereon; 3. As soon as reasonably practicable after the recordation of the Residential Grant Deed, deliver to of the Residential Title Policy. IN ADDITION, YOU ARE FURTHER INSTRUCTED TO PROMPTLY ADVISE THE UNDERSIGNED AT 7141641-3451 AND MURRAY KANE AT 213f617-0480 UPON THE RECORDATION OF THE APPLICABLE AGENCY DOCUMENTS. 22310 1 9740-000 3 166275.01 a04103/01 Ms. Mickey Vandenberg Mr. Roger C. Reimer Error! Reference source not found. Page 8 This letter contains the entire agreement relating to the Agency Matters between you, Agency, and PCH and may not be modified in any manner whatsoever except with the prior written consent of Agency and PCH. Kindly acknowledge your receipt of these instructions, and your agreement to comply with the same, by signing and returning to the undersigned the enclosed copy of this letter. Notwithstanding the undersigned's failure to receive a return copy of this letter, your act of 223VI97404W3 166275-01 aO4,'03101 Ms. Mickey Vandenberg Mr. Roger C. Reimer Error! Reference source not found. Page 9 recording any of the Agency Documents shall constitute evidence of your agreement to comply with the instructions set forth herein. Sincerely, RUTAN & TUCKER, LLP Lori Sarner Smith LSS Enclosure RECEIVED AND AGREED TO THIS DAY OF MARCH,2001. FIRST AMERICAN TITLE INSURANCE COMPANY By: Name: Title: cc: Mr. Robert L. Mayer Mr. Stephen K. Bone Mr. R.J. Mayer Mr. Shawn Millbern Mr. David Biggs Murray O. Kane, Esq. Kathy Ng, Esq. Jeffrey M. Oderman, Esq. Deja M. Hemingway, Esq. 2231019740.0003 166275-01 s04103iOI EXHIBIT "A" PROFORMA RESIDENTIAL TITLE POLICY [See Attached] Exhibit"A" 223M 19740.OW3 166275_01 aO4143101 To Recording Instructions (the "Prior License Agreement"), which Prior License Agreement sets forth certain obligations of WC to maintain and repair said landscaping and other improvements. 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 WH and City desire to terminate the Prior License Agreement from and after the effective date of this Agreement. D. In connection with the development of the Grand Coast Resort Parcel, MF was required by City to provide certain landscaping 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 ;vSF and approved by City. Said public nghts-of-way adjacent to the Grand Coast Resort Parcel are depicted in the attached Exhibit`O 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 `O' and are referred to herein as the "Parcel C Improvement Area." E. In connection with the development of the Grand Coast Resort Parcel,MF 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 "Overcrossing Improvement Area," in accordance with plans and specifications submitted by MF and approved by City and by the California Department of Transportation("CalTrans") through issuance of encroachment permits, a Cooperative Agreement for design and project development(District Agreement No. 12-3?3), a Cooperative Agreement for the construction phase of the project (District Agreement No. 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, CIF, as ground lessee of the Grand Coast Resort Parcel, is willing to assume the responsibility for the installation, maintenance, repair, demolition, removal andlor 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 WH, 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 t1us Agreement. C0Y EN, ANTS: Based upon the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by City, WH, and hfF, the Parties hereto agree as follows: 1. Grant of License to WTI. City hereby grants to WH and WH 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 farther hereby grants to WH and WH hereby accepts from City K.',CGNH9CR,MWaierftw&LA1-S M i January 19.2W1 -2-