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HomeMy WebLinkAboutJune 2010 - April 2011 - The Strand Parking Structure Budget Council/Agency Meeting Held: Deferred/Continued to: 'AAppr veb ❑ Conditionally Approved ❑ Denied p Clerws Sign re Council Meeting Date: May 17, 2010 Department ID Number: ED 10-18 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Administrator PREPARED BY: Stanley Smalewitz, Director of Economic Development SUBJECT: Approval of The Strand Parking Structure budget pursuant to the Operating Agreement with CIM/Huntington, LLC., and appropriate funds to cover operating expenditures Statement of Issue: The Strand Parking Structure (Structure) is owned by the City of Huntington Beach and operated through an Operating Agreement between the City and CIM/Huntington, LLC (CIM). Annually, CIM is required to submit a proposed budget, setting forth the expenditures and revenues to be approved by City Council. Financial Impact: All revenue received from operations at the Strand Parking Structure are deposited into the Strand Parking Fund (Fund 712). This fund is a Trust and Agency fund used to record monies held by the City for others. Pursuant to the Operating Agreement between the City and CIM, revenue from parking activity in the Structure is to be used for payment of monthly operating expenses, as well as a monthly management fee. Recommended Action: Motion to: A) Approval of the June' 2010-April 2011 Strand Parking Budget, which established estimated revenues and expenditures relating to the Strand Parking Structure; and, B) Appropriate $402,000 in expenditures (from Strand Parking Revenue) in Fund 712 for FY 2009/10 for payment of operating expenditures related to the Strand Parking Structure through the end of the City's fiscal year (September 2010). Alternative Action(s): Do not approve the Strand Parking Budget and provide direction to staff to re-negotiate. -97- Item 70 - Page 1 REQUEST FOR COUNCIL ACTION MEETING DATE: 5/17/2010 DEPARTMENT ID NUMBER: ED 10-18 Analysis: The Strand Parking Structure (Structure) is operated by CIM through an Operating Agreement, approved in November, 2008. The Operating Agreement sets forth the operation and use of the Structure. CIM has retained Standard Parking to manage and operate the Structure and valet parking service. Pursuant to the Operating Agreement, CIM must submit an annual budget by May 15 of each year (Attachment 1). The budget includes an estimate of operating expenditures, as well as projected annual revenues. Economic Development has met with CIM and Standard Parking to review and discuss the budget. Not all buildings at the Strand are occupied; therefore, the revenue and expenditures will be changing as the buildings are occupied which is expected by June/July. This increased occupancy has been considered in the budget. This action is necessary to establish appropriations for the City's FY 2009/10 budget in the Strand Parking Fund (Fund 712) in order to pay actual and projected operating expenditures for the period of June 2009— September 2010. Pursuant to the Operating Agreement, all transient parking revenues are deposited into a City account on a daily basis (i.e., Fund 712). In addition, if valet rates are charged on a hotel guest's bill, revenue from these valet rates will be deposited monthly to the same fund. The City's General Fund will receive a portion of the parking revenue deposited into Fund 712. The amount received by the General Fund will be net the following: 1. Monthly Structure operating expenses paid in arrears (e.g., personnel costs, common area expenses, maintenance, repairs, janitorial, etc.). 2. Shared parking revenue as defined in the Operating Agreement as operating income generated by the Structure in excess of rates in the Main Promenade Parking Structure (the City and CIM will split the excess operating income 50/50). 3. A minimum of $75,000 maintained as fund balance in Fund 712 per the Operating Agreement to cover all incurred, but unpaid operating expenses. The remaining revenue after these conditions are met, will be transferred to the General Fund. In the current fiscal year, $50,000 has been transferred into the General Fund, leaving $50,000 retention in Fund 712 and revenue that may be shared with CIM. CIM has projected parking revenue through September 30, 2010, to be $571,000 and expenditures of $402,000. As part of the FY 2010/11 budget development process, an appropriate budget for revenue and expenditures will be adopted in the Strand Parking Fund (Fund 712). Environmental Status: Not applicable. Strategic Plan Goal: Maintain financial viability and our reserves Item 7. - Page 2 -98- REQUEST FOR COUNCIL ACTION MEETING DATE: 5/17/2010 DEPARTMENT ID NUMBER: ED 10-18 Attachment(s): ® - . . 1. June 2010-April 2011 Strand Parking Budget 2. CIM Operating Agreement -99- Item 7. - Page 3 ATTACHMENT # 1 Location Name: The$trand Location Number. $1687&81888 2010/2011 Budget Acc6pa na= ;ALE NU do Fitt &S $ell Da &Y 1291; &a EPA ME Aff .� Monthly 41640 6,489 0,489 6,489 6,689 8,489 6,489 6,489 6,489 6,489 6,469 6,469 8,489 77,886 Monthly:Busines hrs 470 470 470 470 470 470 470 470 470 470 470 470 s,941 Transient 41010 56,794 $7,527 118,824 117,448 68,957 34,7T1 30,000 25,000 30,000 30,000 30,000 40,000 636421 Valet 3,610 3',5W .6,610 3,619 3,503 3,610 3,603 3,619 3,819 3,289 3,619 3,503 31AU Key Deposits 0 0 0 0 0 0 0 0 0 0 0 0 0 Hotel 19,779 19,140 . 19,779 19,779 19,140 19,779 19,140 19,779 19,179' 17,864 19,779 19,140 232,877 Validation 41070 100 100 100 100 100 100 100 100 100 100 100 100 1,200 Gross Parking Revenue $6,251 67,229 162,172 141,908 96,669 65,228 59,702 65,457 60,457 68,192 60,467 69,702 999,410 Less: Sale Tax Cotieeted 49M 0 0. 0 0 0 0 0 0 0 NET REVENUE 86,251 87,229 152,172 147,906 96,689 65,228 59,102 55,457 60,457 58,192 80,467 69,702 999,410 Wages Regular 51011 26,703 26,703 46,516 26,703 24,275 24,275 24.275 37,505 24,275 24,275 24,275 24,275 333,066 Employee Incentive 0 0 0 0 0 0 0 0 0 0 0 0 0 Compensation 26,703 26,703 46,816 26,703 24,276 24,275 24,275 37,606 24,276 24,276 24,276 24,275 333,056 Payroll Taxes&burden 51038 5,557 5;657 9,473 5,557 3,733 3,733 3,733 5,768 3,733 3,733 3,733 3,733 58,043 SkkA-WdayNacetion 2,136 2,136 3,641 2,136 1,042 1,942 1,942 3,000 1,942 1,942 1,942 1,942 26,645 Health&Welfare 51036 5,543 6,643 5,843 6,643 5,643 5,643 5,643 5,643 5,543 5,643 5,843 6,643 67,716 Workers Compensation 51037 4,773 4,773 8,136 4,773 4,339 4,339 4,339 6,704 4,339 4,339 4,339 4,339 42,176 Pension 51043 11 11 it 11 11 11 11 11 11 11 11 11 132 Payroll Taxes&Benefits 18,120 18,120 26,904 18,120 16,660 15,668 16,668 21,126 16,668 16,86s 16,668 15,668 212,068 Uniforms 5104100 1,200 1,2W 1,200 1,200 1,200 1,200 1,200 1,200 1,200 1,200 1,200 1,200 14A60 Signs supplies and small tools 230 230 230 230 230 230 230 230 230 230 230 230 2,760 Stationary OMw Supplies 5105100 130 130 130 130 130 130 130 130 130 130 130 130 I'm Printing Ticket expense 550 550 $50 550 560 650 am 550 550 550 550 550 6,600 Repairs&Maintenance . 6106263 1,000 1,000 11000 1,000 1,000 1,000 1,000 1,000 1,000 1,000 1,000 1,000 12,000 Liablity,Insurance 5109200 1,347 1,347 1,347 1,347 1,347 1,347 1,347 1,347 1,347 1,347 1,347 1,347 16,162 ° Employee Recruiting processing 115 115 115 115 115 115 115 115 115 115 115 115 1,380 =L Ganeral/Mtsc Expenses 5123100 210 210 210 210 210 210 210 210 210 210 210 210 2,620 ® Auto DamageIngCiaims&deductibles 1,000 3,500 11000 3.500 3,500 11000 11000 3,500 1,000 1,000 3,500 1,000 24,500 License Fee&Bonds 0 0 47 0 0 0 0 0 338 0 0 0 386 ° Restriping 0 1,800 0 0 0 0 0 0 1,800 0 0 0 3,600 Postage 10 10 10 10 10 10 10 10 10 10 10 10 120 Telephone 600 $00 Soo Soo Soo 500 500 Soo am Soo 500 500 6,000 Credit Card Fees 0 0 0 0 0 0 0 0 0 0 0 0 0 Accounting &Legal FeesData Processing I AR 10 10 10 10 10 10 10 10 10 10 10 10 120 PaynA Processing.Charges 175 175 176 175 175 175 176 175 175 175 176 176 2,100 Swee ft 680 580 560 560 560 580 560 560 560 580 560 560 6,720 Pressure washing 0 0 0 0 0 0 0 0 0 0 0 0 0 Garage KeepresValet insurance 564 564 664 584 564 564 564 564 564 554 564 564 0,768 Management Fee 1,553 1,653 1,553 1,553 1,653 1,563 1,607 1,807 1,607 1,807 11607 1,607 18,954 Operating Expense 9 153 13A53 9,200 11 653 11,653 9,163 9,208 11,708 11 346 9,208 111,708 9 126,661 TOTAL EXPENSES 83 976 69,276 81 621 56,476 61,697 48 097 49151 70,339 $1 280 0,161, 61,651 49161 671 776 TOTAL OPERATING PROFITILOSS 32,278 281963__ 70,861 91,429 45,062 16,131 101661 114 8A82) 9,,188 9,041 8,806 20,651, 327,635. ® Percentage Management Fee 0 0 0 0 0 0 0 0 0 0 nn p � &rood Peh1�Fp budget M°y2e10 gytYL011 3 23 A Relorcast I budge s/8r2010 320 PN M TOTAL OPERATING PROFITILOSS 32 76 28.953 70,661 91,429 45,062 18131 10,551 (14,1182) 9168 9 041 8,806 26,881 327 635 ° C ATTAC H M E N T #2 PLEASE COMPLETETHIS INFORMATION RECORDING REQUESTED BY: 'COPY Recorded in Official Records; Orange county Tom Daly,clerk-Recorder I!((II(41lII(I{!il(!{iilillllllglfllllilll(llliilliliilllill(I(ilIllliilNO Arab WHEN RECORDED MAIL TO. FEE 200900001838312:47pm 01/15/09 120 8 Al2 42 City of Huntington Beach 0.00 0.00 0.00 0,00 0.00 0.00 0.00 0.00 Attn: Joan L. Flynn . City Clerk's Office P. 0. Box 190 Huntington Beach, CA 92648 TN1S SPACE FOR RECORDER'S USE ONLY TITLE OF DOCUMENT: OPERATING AGREEMENT FOR THE STRAND PUBLIC PARKING STRUCTURE Not 0ornpa,e?,`- " - t! This dcornent iz sot*for the official busjr a of the City of Huntington Beach,as contemp4ftd under Govemment Code Sec.6103 and should b B recorded tree of charts, f THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (Additional recording tee applies) -103- (tern 7. - Page 7 OPERATING AGREEMENT FOR THE STRAND PUBLIC PARKING STRUCTURE THIS OPERATING AGREEMENT ("Agreement') is entered into as of November 25 , 2008, between the CITY OF HUNTINGTON BEACH, a California charter city ("City"), and CIM/Huntington, LLC, a California limited liability company ("Operator"), as approved by City Council of City of Huntington Beach at its meeting held on November 3 , 2008. Recitals: A. City will be the owner of a certain parking structure (the "Public Parking Structure") and the underlying parking parcel to be constructed on the site identified in Exhibit "A"hereto,which City desires to utilize for public parking purposes. B. The Public Parking Structure and certain other off-site improvements are being financed in part with public funds. C. City desires that Operator maintain and operate the Public Parking Structure and Parking Parcel consistent with the CC&Rs, License and Agreement Regarding Maintenance, Agreement Containing Covenants and Parking Management Plan, all as defined below, for the public purpose of City to provide adequate public parking. D. City and Operator wish to set forth their agreement as to the operation of the Public Parking Structure. Agreement: In consideration of the foregoing recitals and for other consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows: Section 1. Definitions. 0 A enc means the Redevelopment Agency of the City of Huntington Beach_ ii) Agreement Containiny, Covenants means that certain Agreement Containing Covenants Affecting Real Property previously recorded against the Project Site on June 25, 2004 as Instrument No. 2004000580586, as amended by that First Amendment to Agreement Containing Covenants Affecting Real Property, as may be amended from time to time_ 111) CC&Ws means the Declaration of Covenants, Conditions and Restrictions and Reciprocal Easement Agreement dated as of November 3 , 2008, executed by City, Agency, Salvator W. Cracchiolo, as Trustee of the Cracchiolo S.W. & D.L_ Trust A & C, successor-in-interest to Frank M. Cracchiolo, Trustee for the Revocable Trust dated June 12, 1979, and Salvator W. and Barbara F. Cracchiolo, (collectively, "Cracchiolo") and Operator. I OPERATING AGREEMENT v18 Item 7m a Page 8 -104- iv) City means City of Huntington Beach, a California charter city. v) DDA means collectively the Disposition and Development Agreement entered into by and between Operator's predecessor-in-interest and Agency dated June 17, 1999, as amended pursuant to the [First] Implementation Agreement to the Disposition and Development Agreement dated April 6, 2000, as amended by the Second Implementation Agreement to the Disposition and Development Agreement dated March 5,2001,as amended by the Third Implementation Agreement to the Disposition and Development Agreement (the "Fourth Implementation Agreement") dated September 15, 2003, as amended by the Fifth Implementation Agreement to the Disposition and Development Agreement dated July 19, 2004, and as amended by the Sixth Implementation Agreement to the Disposition and Development Agreement dated November 3 ,2008. vi) License and Agreement Regarding Maintenance means that certain Grant of License and Agreement Regarding Maintenance of Landscaping and Public Improvements entered into by and between City and Operator dated November 3 , 2008. vii) Hotel Parcel means that portion of the Project Site on which the Hotel Project is being developed as shown on the Site Plan. viii) Hotel Project means the approximately 157 room hotel being developed on the Hotel Parcel. ix) Maintenance Enense means any cost, expense or fee not included within the definition of Operating Expenses listed in Section 6 hereof, including, without limitation, capital repair and replacement and maintenance and repair costs. x) Merged Redevelopment Project means as set forth in Section 102 of the DDA. xi) Net Operating Income means Operating Income less Operating Expenses. xii) Operating Expenses are defined in Section 6 hereto. xiii) Operating Income means all fees, charges, and receipts from the operation of the Public Parking Structure deposited into the Parking Revenue — Strand Account (but specifically excluding any revenues received in connection with City's use of the Public Parking Structure as described in Section 2.4, below,[including, without limitation, any vending machine or other incidental revenues, and any revenues from advertising or other promotions at the Public Parking Structure]). xiv) Parking Parcel means that certain parcel of real property located in the City of Huntington Beach, County of Orange, State of California, more particularly described in Exhibit"A" attached hereto_ xv) Parking Revenue— Strand Account means a separate account established by the City which shall be used for the deposit of revenue on a daily basis of all Operating Income. OPERATING AGREEMENT v IS Item 7e m Page 9 c xvi) Parcel or Parcels means the Parking Parcel, Hotel Parcel and the Retail Parcel,or any of them,as applicable. xvii)Parking Management Plan means that certain Parking Management Plan relating to the Public Parking Structure approved by City Planning Department on June 17 , 2008, which may be amended from time to time following approval by the City Planning Department and subject to review and written approval of the Agency Executive Director or designee. xviii) Party or Parties means City and Operator, or either of them,as applicable. xix) Project means the Retail Parcel, the Hotel Parcel, the Parking Parcel and the Public Parking-Structure, and the improvements therein. xx) Project Site means the real property described on Exhibit"B"attached hereto and incorporated herein by reference of which Operator currently owns a 95.495% tenancy-in- common interest and Cracchiolo owns a 4.505% tenancy-in-common interest, owning together 100%of the fee interest in the Project Site. xxi) Retail Parcel means that portion of the Project Site on which the Retail Project is being developed as shown on the Site Plan_ xxii)Retail Project means the three-level, 98,000 square foot retail/office project being developed on the Retail Parcel. xxin) Shared Parking Revenues means that portion of the Operating Income which is derived only from parking and valet fees generated by the Public Parking Structure from City-approved parking rates in excess of established City-approved parking rates in City of Huntington Beach Main Street public parking structure, but shall exclude those revenues defined in Section 2.3(b). xxiv) Site Plan means the Site Plan attached hereto as Exhibit "C" and incorporated herein by reference showing the configuration of the Project_ Section 2. Operation and Use. 2.1 General Operation. City authorizes Operator to operate the Public Parking Structure, and Operator agrees, at Operator's sole cost and expense, to operate and use the Public Parking Structure in accordance with all of the terms and conditions of this Agreement. Operator shall only use, or pen-nit the use of, the Public Parking Structure for the purpose of vehicular parking and vehicular and pedestrian ingress and egress, and for no other use or purpose. Operator and City acknowledge and agree that the use of the Public Parking Structure is to provide adequate public parking for City. Operator acknowledges that the Public Parking Structure and the parking spaces therein are part of City's "Shared Parking Plan", as may be amended or superseded from time to time. Except to the extent permitted by any City-approved valet parking plan set forth in the City-approved Parking Management Plan, parking spaces shall not be reserved in way by any means. During all hours of operation for the Public Parking 3 OPERATING AGREEMENT vIS Item 70 - Page 10 -106- Structure as set forth in Section I I hereof, Operator shall make the Public Parking Structure available to members of the general public. Such availability shall be without preference or priority for any class of persons over any other class of persons. At all times, Operator shall post signs acceptable to Operator and City designating the Public Parking Structure as "public parking." Operator acknowledges that the Public Parking Structure shall be used for unrestricted public parking(subject to reasonable limitations as to the type of vehicles permitted in the garage and further subject to any City-approved valet parking plan set forth in the City-approved Parking Management Plan), and shall be clearly identified as such. 2.2 Maintenance and Repair, Compliance with Law. Operator shall, at Operator's sole cost and expense (subject to Section 7, below), (a) manage, repair, reconstruct and operate the Public Parking Structure and Public Parking Parcel, (b) employ sufficient personnel for the operation of the Public Parking Structure,(c)maintain accounting records of all revenues and expenses related to the management, repair, reconstruction, and operation of the Public Parking Structure and Parking Parcel, and (d) periodically consult, as requested by City, with City regarding such management, reconstruction, repair, and operation. Operator agrees, at Operator's sole cost and expense, to comply with all statutes, ordinances, rules, orders, regulations of federal, state, county and city governments regulating the use by and operation of Operator of the Public Parking Structure and Parking Parcel. Operator further agrees, at Operator's sole cost and expense, to manage, repair, reconstruct and operate the Public Parking Structure and Parking Parcel in a manner consistent with and to the standards set forth in the CC&R's, the Agreement Containing Covenants, and the Parking Management Plan. Operator shall not use or knowingly permit the use of the Public Parking Structure or Parking Parcel in any manner that will create or tend to create a nuisance. The hours of operation for the Public Parking Structure are set forth in Section I I hereof. 2.3 Valet Parking; Payment for Hotel Guests_ a. Subject to any City-approved valet parking plan set forth in the City-approved Parking Management Plan, during the term of this Agreement, Operator shall have the sole right to operate valet parking in the Public Parking Structure. Operator and City shall meet and confer at Ieast every 90 days to enable efficient operation of both the valet and other parking uses of the Public Parking Structure. Members of the public and Hotel Project guests shall have the right to equally access and use the valet parking in the Public Parking Structure. b_ In the event a Public Parking Structure patron is a guest of the Hotel Project and is charged for use of the Public Parking Structure on his or her hotel bill, then Operator shall deposit (or cause the operator of the Hotel Project to deposit) into the Parking Revenue— Strand Account, as Operating Income, both of the following for such patron: (i) for each 24-hour period or fraction thereof the then City-approved maximum daily rate or overnight public rate (if applicable) for the Public Parking Structure; and (ii) for each 24-hour period or fraction thereof fifty percent (50%) of the difference between (A) the amount charged to such hotel guest by the hotel; and (B) the then City-approved maximum daily rate or overnight public rate (if applicable) for the Public Parking Structure. 4 OPERATING AGREEMENTv18 -107- Item 70 - Page 11 C. All other monies received from any patrons of the Public Parking Structure (including hotel guests) shall be deposited into the Parking Revenue - Strand Account pursuant to Section 7,below_ d. The payments required under this Section 2.3 shall be made on a monthly basis no later than the tenth (10"') day of each month for the prior month's use of the Public Parking Structure which gives rise to the payment. Such payments shall be sent together with a detailed statement to the City Treasurer and to the Director of Economic Development detailing the calculation for such payments and shall include such reasonable information as may be requested by the City Treasurer and/or the Director of Economic Development. Such payments shall not be included in Shared Parking Revenue. 2.4 Non-Parking Uses. Nothing herein shall prohibit or limit City from using portions of the Public Parking Structure that are not parking areas or areas needed for pedestrian or vehicular access for reasonable, commercial uses (including, without limitation, the use of vending machines or other commercial purposes) so long as such use does not materially interfere with the use of the Public Parking Structure as public parking. The City shall be responsible for the costs of installation, maintenance, repair and removal of any equipment required for the Non-Parking Uses. To the extent such uses create additional costs for insurance, utility services, janitorial services and supplies, or security and such costs can be determined and/or apportioned by the Operator, said costs shall be paid by the City_ Prior to installation of said non-parking uses, the City shall confer with the Operator and obtain Operator's written consent, which shall not be unreasonably withheld, conditioned or delayed provided the City presents a plan consistent with this Section_ City and Operator agree to jointly develop, for future City Council consideration, a marketing plan for advertising in the Public Parking Structure for both the parking and non-parking areas of the Public Parking Structure_ The marketing plan would address the cost of capital improvements, maintenance and repair, payment of expenses, and distribution of income between the parties hereto. Section 3. Maintenance of Public Parking Structure and Parking Parcel. Consistent with the provisions and standards set forth in the CC&R's, the Agreement Containing Covenants, and the Parking Management Plan, Operator covenants and warrants it will (x) at Operator's sole cost and expense, pay for capital repair, replacement and improvements to the Public Parking Structure, (y) at Operator's sole cost and expense, maintain, reconstruct, and repair, or cause to be maintained, reconstructed, and repaired, the Public Parking Structure and the Parking Parcel in good order, condition and repair. Without limiting the foregoing.and only to the extent not inconsistent with and/or to the standards set forth in the CC&R's, the Agreement Containing Covenants and the Parking Management Plan, Operator hereby agrees to maintain, repair, reconstruct and operate in accordance with the practices generally prevailing in the operation of structured parking adjacent to other retail and hospitality facilities located in Southern California similar in character to those located on the Retail Parcel and Hotel Parcel, and shall at all times perform the services set forth in Exhibit "D" attached hereto as frequently as reasonably required for the Public Parking Structure and Parking Parcel to satisfy such standard of maintenance, repair, reconstruction, and operation and remain in good order, condition and repair(the "Operating Standard")- 5 OPERATING AGREEMENTv18 Item 7. - Page 12 -108- Section 4. Rates. City shall have the sole power to establish parking rates and charges (including, day/overnight and self-parking/valet) for the use of the Public Parking Structure at all times, and parking rates shall be established by resolution of City Council. Operator may recommend to City, from time to time, revisions to the rates to be charged for the Public Parking Structure. The Parties agree that such recommendations shall in all circumstances be subject to approval by City and shall be consistent with the use and operation of the Public Parking Structure as public parking. Nothing in this Agreement shall be intended to require, or shall require, City to approve any such recommendations, however the City Administrator shall within thirty (30) days of receipt of such recommendation advise the Operator of City Administrator's recommendation to approve or deny_ In the event such recommendation to revise rates is approved by City, City shall advise Operator in writing of any changes to the Public Parking Structure rates at least 30 days prior to the date any such change becomes effective. Final determination of rates and charges for the Public Parking Structure shall be made by City Council. Operator acknowledges and agrees that any change in the parking rate structure (including, without limitation, a change to the validation or valet programs)would have to be implemented in accordance with and pursuant to all applicable laws, ordinances, rules, regulations, permits, authorizations, orders and requirements of all federal, state, county and municipal governments, and the departments, bureaus, agencies or commissions thereof Section 5. Operator's Employees. All of Operator's employees and the employees of any subcontractor of Operator that operates the Public Parking Structure as provided in Section 23 hereof,shall, at all times while on duty at the Public Parking Structure,wear standard uniforms, conduct themselves with exemplary demeanor, be courteous and polite to the public and not engage in any raucous or offensive conduct. Operator shall be the sole judge, using reasonable discretion, as to whether the conduct of the employees of Operator meets the requirements hereof. Operator shall immediately take all steps necessary to eliminate any condition complained of. Any laborers or employees engaged by Operator shall not be the employees of City and City shall in no way be liable for the payment of any wages or benefits to any such laborers or employees. Any such laborers or employees shall in no way be third party beneficiaries of this Agreement. Section 6. Operatinp_ Fee and OperatinI4 Expenses. Solely to the extent there is Net Operating Income, City shall pay to Operator as its operating fee for each full month of the term of this Agreement, a fee of$1,500, such amount to be increased on each annual anniversary of the Commencement Date of this Agreement by a percentage increase agreed to by City and Operator as reflective of the percentage increase during the preceding year in the Consumer Price Index-Urban Wage Earners and CIerical Workers (West Urban, All Items, Base 1982-84 = 100) as published by the United States Department of Labor, Bureau of Labor Statistics. For the first partial month of operation of the Public Parking Structure, the operating fee shall be prorated from the first day of operation to the last day of the month. City shall have no obligation to pay the operating fee to the extent Net Operating Income is insufficient to pay such amount. 6 OPERATING AGREEMENT v 18 -109- Item 7m - Page 13 Solely to the extent there is Operating Income, Operating Income may be used to pay for those reasonable expenses and costs incurred by Operator for the operation of the Public Parking Structure (including valet parking) and contained in the City-approved Project Budget (defined below) or costs of installation, maintenance, repair and removal of any equipment required for City non-parking uses that cannot be reasonably and fairly determined and apportioned by the Operator, or additional costs for insurance, utility services, janitorial services and supplies, or security that cannot be reasonably and fairly determined and apportioned by the Operator, as more particularly set forth in Section 2.4 above (collectively, the "Operating Expenses"). City shall have no obligation to pay for or reimburse any Operating Expenses to the extent Operating Income is insufficient to pay such amount and any shortfall shall be paid by the Owners (as defined in the CC&Rs) of the Retail Parcel and Hotel Parcel as part of Class B Common Area Expenses (as defined in the CC&Rs)_ Operating Expenses shall include only the following and only to the extent any cost, fee or expense is incurred solely for the operation of the Public Parking Structure as documented to the reasonable satisfaction of the City Administrator or his/her designee and is contained in the City-approved Project Budget (or costs of installation, maintenance, repair and removal of any equipment required for City non-parking uses that cannot be reasonably and fairly determined and apportioned by the Operator, or additional costs for insurance, utility services, janitorial services and supplies, or security that cannot be reasonably and fairly determined and apportioned by the Operator, as more particularly set forth in Section 2.4 above): subcontractor fees and expenses, salaries and wages, health insurance, uniforms, security guard service, supplies, signs, utilities, public liability insurance, garage keepers liability and other insurance (including, but not limited to, insurance required by Section 14 of this Agreement), Class A Common Area Expenses (as more particularly described and defined in the CC&Rs), and any other necessary and reasonable costs related to the operation of the Public Parking Structure by Operator and/or any subcontractor thereof, provided, that all Operating Expenses must be reasonable, not duplicative (e.g., in the event Operator engages a subcontractor as described in Section 23 hereof), and must be provided as operation costs in a City-approved Project Budget as set forth below_ Payroll taxes, workers' compensation insurance and sick leave pay shall be reimbursed at the percentage of gross payroll as may be determined by Operator in accordance with applicable state and federal laws. Operating Expenses shall not include any other costs, fees or expenses, including without limitation, costs, fees or expenses related to repair and replacement (including repair, restoration and reconstruction) obligations of Operator in Section. 402 of the DDA, in the CCR's or herein or any of Operator's general overhead expense which shall include, but shall not be limited to: i) Administrative and related costs and expenses incurred in the operation of the Public Parking Structure or the other operations of Operator, as they are incurred in the general management of the affairs of Operator generally, including the monitoring of the operation and management of Operator; ii) Maintenance of the general books and records of Operator; iii) Office supplies and equipment used by Operator which are not used exclusively for the Public Parking Structure; 7 OPERATING AGREEMENT vl8 Item 70 - Page 14 -110- IV) Postal, telephone and travel expense which are not directly related to the management of the Public Parking Structure; v) The cost of any managers or supervisors who are not employed at the Public Parking Structure on a full time basis; and vi) Capital repairs necessary to continue operation of the Public Parking Structure. Notwithstanding any other provision hereof,Operating Expenses shall not include, and in no event shall City be liable for payment of, any operator or management fee of any subcontractor of Operator hereunder, but such limitation on liability of City shall not prevent or in any way restrict Operator from using or assigning all or a portion of its operator fee described in the first sentence of this Section 6 for such purpose_ Section 7. Operatinp_Income. (a) Prior to the first date of operation of the Public Parking Structure, City shall establish the Parking Revenue — Strand Account. No revenues from the Parking Revenue — Strand Account shall be commingled with any other City accounts, provided however that Operator acknowledges and agrees that funds deposited in and separately accounted for by the City as the Parking Revenue—Strand Account may be deposited into a City bank account which contains deposits from other separately accounted for City accounts. City shall be the sole signatories on the Parking Revenue — Strand Account used for the deposit of funds. City shall have the option to change the bank where the Parking Revenue — Strand Account is held at any time upon written notice to Operator- (b) On a daily basis, Operator shall deposit (and shall cause any subcontractor to deposit) all Operating Income into the Parking Revenue— Strand Account_ In the event a Public Parking Structure patron is a hotel guest at the Hotel Project but is not charged for use of the Public Parking Structure on his or her hotel bill or a Public Parking Structure patron is not a hotel guest at the Hotel Project, then Operating Income shall include any monies received by the Operator or any subcontractor from any such patron. Operator shall maintain (and cause any subcontractor to maintain) records of all revenues so received and deposited_ Within ten (10) days after the end of each month, Operator shall submit to the City Treasurer and the Director of Economic Development a reasonably detailed written statement containing such reasonable information as may be requested by the City Treasurer andior the Director of Economic Development (including, without limitation, a subcontractor monthly statement of income and expense, if applicable). (c) Funds in the Parking Revenue— Strand Account shall only be used as follows l. First, monies deposited in the Parking Revenue — Strand Account shall be used for the payment of Operating Expenses. Subject to the following sentence, on the last Friday of each and every successive month of the term of this Agreement, only from monies deposited in the Parking Revenue— Strand Account and from no other source of funds, the City 8 OPERATING AGREEMENT v I& -111- Item 7. - Page 15 shall advance to Operator, solely for payment of Operating Expenses, the amount estimated by Operator for Operating Expenses for the following month as set forth in the then current City- approved Project Budget. Until there are sufficient funds in the Parking Revenue — Strand Account to make such advance, Operator shall be responsible for paying all Operating Expenses from Operator's own funds. To the extent the Operator pays any Operating Expenses from Operator's own funds, the City acknowledges and agrees that Operator shall be reimbursed over time for such payment(s) to the extent there is sufficient Net Operating Income after the two retentions required by this subsection 1. Within ten (10) days after the end of each month, Operator shall submit to the City Treasurer and the Director of Economic Development a reasonably detailed written statement of the Operating Expenses incurred during such preceding month and indicating those which have been paid; together with such reasonable information as may be requested by the City Treasurer and/or the Director of Economic Development. To the extent any such monthly detailed written statement discloses an overpayment to Operator from the City's advance of Operating Expenses for such month, City shall have the right, at its sole option, to either(X) reduce the next month's advance in an amount equal to such overpayment; or(Y) to request that Operator reimburse the City for such overpaid amount within ten (10)days following written request from the City; or (Z) any combination of(X) and (Y)_ No other funds of City shall be available to pay for the operation of the Public Parking Structure. City shall retain in the Parking Revenue — Strand Account: a) an amount sufficient for all incurred but unpaid Operating Expenses; plus (b) an additional retention in the amount of Fifty Thousand Dollars ($50,000.00), which amount may be subject to adjustment as agreed to in writing between the Operator and the City 2. Second, on the last Friday of each and every successive month of the term of this Agreement, to the extent there is sufficient Net Operating Income after the two retentions and payments required by subsection 1, above, City shall use monies deposited in the Parking Revenue — Strand Account to pay Operator the monthly operating fee set forth in Section b hereof owed for the prior month; 3_ Third, to the extent there is Net Operating Income after the two retentions and payments required by subsection 1, above, and payment of the monthly operating fees, every ninety (90) days the City shall perform an initial calculation of the Shared Parking Revenues actually received for the previous ninety (90) days and deposited into the Parking Revenue — Strand Account_ Following such initial calculation, the City shall: (a) disburse/transfer to City's general fund the balance of funds in the Parking Revenue — Strand Account minus fifty percent (50%) of any Shared Parking Revenues actually received for the previous ninety (90) days and deposited into the Parking Revenue— Strand Account as initially calculated by the City; and (b) disburse to Operator at the same time as Operator's then next monthly advance as set forth in subsection t_, above, fifty percent (50%) of any Shared Parking Revenues actually received for the previous ninety (90) days and deposited into the Parking Revenue — Strand Account as initially calculated by the City. Such quarterly disbursements shall only be made to the extent there is Net Operating Income on a cumulative basis during the applicable calendar year after the two retentions and payments required by subsection 1, above, and payment of the monthly operating fees for the portion of the calendar year involved- 9 OPERATING AGREEMENT v 18 Item 7. a Page 16 -112- At the end of each calendar year the City shall perform a final calculation of (i) the Shared Parking Revenues actually received for the previous calendar year and deposited into the Parking Revenue — Strand Account; (ii) the amount if any of quarterly disbursements made pursuant to the immediately preceding paragraph; and (iii) the extent to which there is Net Operating Income after the two retentions and payments required by subsection 1, above, and payment of the monthly operating fees for the calendar year involved. To the extent there has been an under-disbursement of Shared Parking Revenues from such quarterly disbursements based upon such final calculations, the deficit shall be added as an additional credit to the next quarterly disbursement(s) of Shared Parking Revenues for the next calendar year or years until such deficit is fully credited. To the extent there has been an over-disbursement of Shared Parking Revenues from such quarterly disbursement(s) based upon such final calculations, the excess shall be deducted as a debit to the next quarterly disbursements of Shared Parking Revenues for the next calendar year or years until such excess is fully debited. The following is an illustrative example for calculating the fifty percent (50%) share of the Shared Parking Revenues between City and Operator: if the daily rate for a space in the City of Huntington Beach Main Street public parking structure is nine dollars ($9.00) per day, per space, and the rate in the Public Parking Structure is eleven dollars ($11.00) per day, per space, then (1) City will keep all parking revenue proceeds up to nine dollars ($9.00) and (ii) Operator and City will equally split the two dollars ($2.00) per space,per day differential above the base. If the rate per space at the Public Parking Structure is at the same or below the rate charged at the City of Huntington Beach Main Street public parking structure, then Operator shall not share any of the parking revenue derived from parking fees generated by the Public Parking Structure. The fifty percent (50%) share of the Shared Parking Revenues shall apply to both daily rates and overnight rates_ Not less than every ninety (90) days, City and Operator shall meet and confer to review Operating Income and Operating Expenses. (d) Any other revenues received by the Operator (or subcontractor) (including, without limitation, any revenues received in connection with City's use of the Public Parking Structure as described in Section 2.4, above) shall be forwarded by the Operator to the City promptly as such funds are received_ The Operator shall maintain records of all such revenues so received, and forwarded to the City_ Within ten (10) days after the end of each month, Operator shalt submit to the City Treasurer and the Director of Economic Development a reasonably detailed written statement regarding any such revenue containing such reasonable information as may be requested by the City Treasurer and/or the Director of Economic Development. Section 8. Reserved. Section 9. Accounting and Budget. Operator shall maintain (and shall cause any subcontractor to maintain), for a period of five (5) years, Operator's (and subcontractor's) books and records pertaining to this Agreement. All income and expenses shall be accounted for in accordance with recognized accounting practices. Operator hereby agrees that City shall have the right at all reasonable times to inspect, copy and audit in a mutually agreeable location in Orange County, California, Operator's and subcontractor's books and records pertaining to this 10 OPERATING AGREEMENT v18 -113- Item 7. - Page 17 Agreement. In the event an audit discloses an overbilling against and/or underpayment to City in excess of the greater of (X) five percent (5%) of the then current City-approved Project Budget or (Y) $5,000.00, Operator hereby agrees that it shall, within thirty (30) days following written request therefor, reimburse City for the reasonable cost of such audit plus the amount which has been overbilled and/or underpaid_ In the event an audit discloses an overbilling against and/or .underpayment to City in an amount less than the greater of (X) five percent (51/o) of the then current City-approved Project Budget or (Y) $5,000.00, Operator agrees that it shall, within thirty(30) days following written request therefor,reimburse City for the amount which has been overbilled and/or underpaid. Upon completion of the Public Parking Structure and annually on each May 15 thereafter during the term of this Agreement, Operator shall submit to the City Treasurer and the Director of Economic Development a proposed budget for the operation of the Public Parking Structure. Such proposed budget shall set forth the projected income and expenses (the "Proposed Budget"). Operator shall include in the Proposed Budget a schedule of maintenance, repair and replacement for the Public Parking Structure and the estimated cost thereof. Each Proposed Budget shall include both an annual aggregate budget for the Public Parking Structure and monthly budgets for each calendar month during the applicable fiscal year covered by the Proposed Budget. Each Proposed Budget shall be submitted in a form reasonably acceptable to the City Treasurer and the Director of Economic Development_ Each Proposed Budget shall be for planning and information purposes only and shall not be deemed to be binding upon either Operator or City. Each such annual Proposed Budget, prior to adoption and implementation by Operator, shall be approved by City Council. Any budget so approved by City shall become the budget for the ensuing fiscal year and shall form the basis on which Operating Expenses are incurred in that fiscal year. If the budget is not approved, then the budget effective in the prior fiscal year shall govern the Operating Expenses of the Public Parking Structure plus 5% for all noncapital items until a new budget is agreed upon by City and Operator. The budget for any fiscal year may only be amended in writing, subject to the written approval of City Administrator or his/her designee. Operator shall not incur any Operating Expenses which are in excess of five percent (5%) of the annual amount allocated for that particular Operating Expense line item in the budget, unless Operator has obtained the prior written approval of the City Administrator (or his or her designee), such approval not to be unreasonably withheld or delayed, or such increased expenditure is otherwise authorized by this Agreement. All financial statements submitted pursuant to this Agreement shall be certified as fairly representing the Public Parking Structure's financial condition_ Section 10. Term of Agreement_ This Agreement shall commence on the day the Public Parking Structure is open for parking by the general public and City has issued a certificate of occupancy (temporary or final) for the Public Parking Structure (the "Commencement Date"), and shall terminate on the earliest of(a) the date on which neither City nor Agency owns the Public Parking Structure, (b) the date which is twenty-five (25) years after the Commencement Date, or(c)_termination by City pursuant to Section 17, below. tl OPERATING AGREEMENT vl8 Item 7. - Page 18 414- Notwithstanding the foregoing, upon any the termination of this Agreement pursuant to clause(b) above, this Agreement may be extended for an additional twenty-five (25) years upon the mutual written agreement of City and Operator. Section 11. Hours of Operation. The entire Public Parking Structure (including valet and non-valet areas) shall remain open and accessible to the public for parking and retrieval of vehicles no fewer hours than both the City of Huntington Beach Main Street public parking structure and the hours which are consistent with the City-approved Parking Management Plan (e.g., if the City-approved Parking Management Plan permits hotel guests to retrieve their vehicles 24 hours a day, then the Public Parking Structure shall remain open and accessible 24 hours a day, seven(7) days a week(including all holidays), three hundred sixty-five(365) days a year),unless otherwise agreed to in writing by Operator and City. Section 12. Security of Facility. Operator, on behalf of City, shall also be responsible for providing security, at Operator's sole cost and expense, upon or about the Public Parking Structure and Parking Parcel through a subcontract with a licensed security company (City agrees to accept any security company selected by Operator in good faith that is providing security services for other improvements in the area of the Public Parking Structure, and such security service expenses for the Public Parking Structure shall be billed as an Operating Expense (if and to the extent it satisfies the requirements for an "Operating Expense" on a pro rata basis from other improvements in the area of the Public Parking Structure as noted in Section 6, above). The security company and the contract must be reasonably approved in writing by City and the company so employed must agree to hold Operator and City harmless with respect to its activities; provided no such security company shall be obligated to indemnify City against claims or damages from criminal acts of third parties unless such security company provides the Operator with such an indemnity. Operator shall be responsible for securing access to and from the facilities in accordance with written operating policies and procedures to be mutually agreed upon from time to time by Operator and City and Operator shall be responsible for monitoring the security service contract as to hours worked and level of service. Section 13. Indemnification. Operator expressly agrees to defend, protect, indemnify and hold harmless City and Agency and their respective officers, agents, elected and appointed officials, employees and volunteers free and harmless from and against any and all claims, demands, damages, expenses, losses, judgments or liability of any kind or nature whatsoever which City and Agency, and their respective officers, agents, elected and appointed officials, employees and volunteers may sustain or incur or which may be imposed upon them or any of them arising out of or resulting from: (a) the alleged acts.or omissions of Operator, its officers, agents, subcontractors or employees in any manner connected with this Agreement; (b) the occupancy, use, misuse or neglect of the Public Parking Structure and/or Parking Parcel by Operator, its officers, agents, employees, and/or subcontractors, (c) the condition of the Public Parking Structure and/or Parking Parcel caused by Operator, its officers, agents, employees, and/or subcontractors; and/or (d) the operations conducted by or on behalf of Operator with regard to the Public Parking Structure and/or Parking Parcel_ Operator agrees to defend at its own cost, expense and risk all such claims or legal actions that may be instituted against either City and Agency (provided City and Agency have timely tendered a request for a defense to Operator), and Operator agrees to pay any settlement entered into with Operator's consent and 12 OPERATING AGREEMENT v 18 -115- Item 7. - Page 19 satisfy any final judgment that may be rendered against Operator, City, Agency or any other party indemnified by Operator hereunder which are alleged to have resulted from or to be connected with this Agreement. Notwithstanding the foregoing, in no event shall Operator or any such subcontractor be obligated to indemnify City or Agency to the extent of their respective intentional misconduct or gross negligence. Section 14. Insurance. (a) Insurance. Prior to the first date on which the Public Parking Structure is open for public parking, Operator, or a subcontractor of Operator, shall procure and maintain insurance as set forth in this Section, which insurance shall be considered an Operating Expense for purposes of Section 4 above, and shall remain in effect for the duration of this Agreement, including any extensions, renewals, or holding over thereof, from insurance companies that are admitted to write insurance in the State of California or from authorized nonadmitted insurers that have ratings of or equivalent to an A:VIII by A_M_ Best Company. Operator shall pay the premium on all insurance required herein in a prompt and timely manner_ Operator acknowledges awareness of Section 3700 et seq. of the California Labor Code, which requires every employer to be insured against liability for workers' compensation. Operator covenants that it shall comply with such provisions prior to the commencement of this Agreement. Operator shall obtain and furnish to City workers' compensation and employers' liability insurance in amounts not less than the State statutory limits. Operator shall require all sub-contractors to provide such workers' compensation and employers' liability insurance for all of the sub-contractors' employees_ Operator shall furnish to City a certificate of waiver of subrogation under the terms of the workers' compensation and employers' liability insurance and Operator shall similarly require all sub-contractors to waive subrogation. The requirements hereunder for insurance coverage shall not diminish Operator's obligations to defend, hold harmless and indemnify set forth in this Agreement_ (b) Insurance Limits_ Operator hereby covenants and agrees to all times maintain (i) commercial general liability insurance and (ii) "all-risk" casualty insurance in connection with the operation of the Public Parking Structure and/or Parking Parcel. Except as may otherwise be prohibited by law, City, Agency, their respective employees, officers, and agents shall be named as an additional insured on all such liability insurance policies and, solely for purposes of performing its obligations to construct the Public Parking Structure, on such casualty insurance policy_ Such insurance shall with respect to liability insurance include_ (i) coverage for any accident resulting in personal injury to or death of any person and consequential damages arising therefrom in an amount not less than Five Million Dollars ($5,000,000) per occurrence; and (ii) excess limits under a commercial umbrella liability policy of not less than Twenty Five Million Dollar ($25,000,000) per occurrence. Such insurance shall with respect to property/casualty insurance include: comprehensive property damage insurance in an amount equal to the greater of (A) Twelve Million Dollars ($12,000,000), or (B) the full replacement value of the Public Parking Structure_ All such policies shall (1) be issued by a financially reasonable insurance 13 OPERATING AGREEMENT v 18 Item 7. - Page 20 -116- company or companies having a rating of not less than A-VIII in Best's Key Rating Guide, (ii) provide that the same may not be canceled without at least thirty (30) days prior written notice being given to City by the insurer, and (iii) contain a waiver of subrogation provision for the benefit of City. Operator shall furnish to City and Agency evidence that such insurance is in full force and effect. (c) Subcontractors. So long as a subcontractor of Operator maintains insurance in compliance with the provisions of this Section, Operator shall not be required to obtain such insurance (except to the extent required by applicable law, such as worker's compensation insurance as described in this Section 14 above). (d) Self-insurance and Deductibles. Any self-insurance program, self-insured retention or deductible must be reasonably approved separately in writing by City and shall protect City, Agency and their respective officers, employees, and agents in the same manner and to the same extent as they would have been protected had the policy or policies not contained such self-insurance or deductible provisions.Operator shall be responsible for any and all deductibles and/or self-insured retention,without reimbursement from City or Agency. (c) Cancellation: Severability of Interests: Primary and Noncontributing. Each insurance required hereunder shall be endorsed to provide as follows: (i) that coverage shall not be voided, canceled or changed by either party except without thirty (30) days prior written notice to City, (1i)that the insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability, and (ill) and that coverage shall be primary and not contributing to any other insurance or self-insurance maintained by City, Agency and their respective officers, employees, or agents. (f) Delivery of Insurance Documentation. Prior to the commencement of public parking in the Public Parking Structure, Operator shall deliver to City and Agency certificates of insurance and the endorsements required hereunder for approval as to sufficiency and form, including the certificates of insurance and endorsements of any subcontractor to Operator. The certificates and endorsements for each insurance policy shall contain the original signature of a person authorized by that insurer to bind coverage on its behalf_ In addition, Operator shall, at least fifteen (15)days prior to expiration of such policies, furnish City and Agency with evidence of renewals. City and Agency reserve the right to require complete certified copies of all said policies at any time_ City and Agency, or their respective representatives, shall have the right to demand the original or a copy of any or all of the policies of insurance required in this Agreement. (g) No Limitation of Liability_ Such insurance as required herein shall not be deemed to limit Operator's liability relating to performance under this Agreement. The procuring of insurance shall not be construed as a limitation on liability or as full performance of the indemnification and hold harmless provisions of this Agreement. Operator understands and agrees that, notwithstanding any insurance, Operator's obligation to defend, indemnify, and hold City and Agency, and their respective officials, agents, and employees harmless hereunder is for the full and total amount of any damage, injuries, loss, expense, costs, or liabilities caused by the condition of the Public Parking Structure and/or Parking Parcel or in any manner connected with or attributed to the acts or omissions of Operator, its officers, employees, agents, or 14 OPERATING AGREEMENT v18 -117- Item 7. - Page 21 subcontractors, or the operations conducted by or on behalf of Operator, or Operator's use, misuse, or neglect of the Public Parking Structure and/or Parking Parcel, all as more particularly provided in Section 13 above. (h) Books and Records. Operator agrees to make available to City all books,records, and other information relating to the insurance coverage required by this Agreement during normal business hours. (i) Amendments to the Insurance Provisions. (i) Not more frequently than every year, if in the reasonable opinion of City's Risk Manager or designee, based on practices in other publicly owned parking Public Parking Structures at or adjacent to large retail facilities in Southern California, the amount or scope of the foregoing insurance coverages is not adequate, Operator shall, to the extent any additionally required coverage is available at commercially reasonable rates, amend its insurance coverage and/or, if applicable, require its subcontractors to amend their insurance coverage, as reasonably required by City's Risk Manager or designee. (ii) Any modification or waiver of the insurance requirements herein shall be made only with the written approval of the City's Risk Manager or designee. Section 15. Assignment. Operator covenants that it will not assign, transfer, convey, sublet, sell, mortgage, pledge, or encumber this Agreement or any rights of Operator under this Agreement, whether voluntary or by operation of law, provided that no such consent shall be required for an assignment by Operator to an entity which is the owner of the Retail Parcel or the Hotel Parcel which has been approved by Agency in accordance with the terms of the DDA_ Section 16. Surrender of Possession. Upon termination of this Agreement, any improvements constructed or installed at the Public Parking Structure shall remain the property of the then owner of the Public Parking Structure, and Operator shall surrender to such owner the Public Parking Structure in good order, condition and repair consistent with the maintenance and repair and restoration provisions herein, the CC&R's, the Agreement Containing Covenants, and the Parking Management Plan_ Operator will be required to remove all personal property prior to the termination of this Agreement unless other arrangements are made with and approved by the then owner of the Public Parking Structure_ Operator agrees that City will have, without prior notice, the right to sell or otherwise dispose of any personal property belonging to Operator which has been left at the Public Parking Structure for more than ten (10) days after Operator has vacated the Public Parking Structure_ Section 17. Defaults of Operator; Remedies Upon Default. Operator agrees that: (a) If Operator shall be in default in the payment of any sum due from it to City pursuant to this Agreement for ten (10) days after written demand shall have been made therefor by City; or 15 OPERATING AGREEMENT vl8 Item 7. - Page 22 -118- (b) If Operator shall neglect, violate,be in default under, or fail to perform or observe any of the other covenants, agreements, terms or conditions contained in this Agreement on its part to be performed and shall not have remedied, or commenced action which will promptly remedy same which action is thereafter diligently pursued, within thirty (30) days after written notice thereof given by City, or if such violation or default cannot reasonably be remedied in such period and such cure is commenced within said 30-day period and Operator continues to diligently prosecute to completion such cure, such longer period as is reasonably required to effect such cure but not to exceed one hundred twenty(120)days,unless the notice states that the violation or default is an urgent matter relating to public health and safety in which case Operator shall cure the deficiency with all due diligence and shall complete the cure at the earliest possible time but not to exceed forty-eight(48)hours; or (c) If Operator shall fail to operate the premises for any five (5) calendar day period, subject to damage by casualty or other force majeure events; then at the option of City, (x) without limiting any legal remedies available to City at law or in equity, this Agreement and the term hereof shall, upon the date specified in a written_notice given by City to Operator setting forth the nature of such default, breach, matter,or condition,be terminated and City may recover possession of the Public Parking Structure, or (y) City may keep this Agreement in effect and pursue all legal remedies available to City at law or in equity, including, without limitation, specific performance, and, in addition, City shall have the right (but not the obligation) to cure, or cause the cure of, such default, breach, matter or condition, and Operator shall be responsible for payment of all reasonable costs incurred by City related thereto_ Within ten (10) days following written request therefor from City, Operator agrees to reimburse City all actual costs and expenses incurred by or on behalf of City relative to curing, or causing the cure of, any such default, breach, matter or condition_ Any amounts not paid to City within said 10-day period shall accrue interest at the at the lesser of(1) the"prime" lending rate of Bank of America or(2) maximum rate then allowed by law until paid_ Section 18. Independent Contractor. It is expressly acknowledged that Operator shall be an independent contractor with respect to all services performed under this Agreement and Operator agrees to and accepts full and exclusive liability for the payment of any and all contributions or taxes for social security, unemployment insurance, or old age retirement benefits, pensions, or.annuities now or later imposed under any state or federal law which are measured by the wages, salaries, or other remuneration paid to persons employed by Operator on work performed under the terms of this Agreement, and further agrees to obey all rules and regulations which are now, or later may be, issued or promulgated under these respective laws by any duly authorized state or federal officials; and Operator shall indemnify and save harmless City from any such contributions or taxes or liability therefor. Section 19. Property Riphts; Access to the Public Parkinp, Structure. No property rights in the Public Parking Structure, or right of possession thereof, are granted by this Agreement_ However, and in accordance with California Revenue and Taxation Code Section 107.6(a), City advises Operator that by entering into this Agreement, a possessory interest subject to property taxes may be created, and Operator or other party in whom the possessory interest is vested may be subject to the payment of property taxes levied on such interest. 16 OPERATING AGREEMENT v18 -119- Item 7. - Page 23 Notwithstanding the foregoing, it is the intent of City and Operator that this Agreement shall in no way create a possessory interest of Operator in the Public Parking Structure for purposes of possessory interest taxes under California Revenue and Taxation Code Section 107.E(a) and that any interest conveyed hereunder not be subject to any possessory interest, ad valorem or any other similar tax imposed by the State or any other governmental entity. Operator agrees that any authorized representative of City shall have the right at all reasonable times to enter upon and to examine and inspect the Public Parking Structure. Operator further agrees that any such authorized representative shall have such rights of access to the Public Parking Structure as may be reasonably necessary to cause the proper operation, maintenance and repair of the Public Parking Structure in the event of failure by Operator to perform its obligations hereunder. Section 20. Remedies Will Be Cumulative. All rights and remedies of City enumerated will be cumulative and none will exclude any other right or remedy allowed by law. Likewise, the exercise by City of any remedy provided or allowed by law will not be to the exclusion of any other remedy. Section 21. Limitation of City Liability. Any and all monetary obligations of City under this Agreement shall be payable solely from any Operating Income derived by City from the Public Parking Structure. Section 22. Waiver. One or more waivers of any covenant, term or condition of this Agreement by either party will not be construed by the other party as a waiver of subsequent breach of the same covenant, tern or condition. The consent or approval of either party to or of any act by the other party of a nature requiring consent or approval will not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act. Section 23. Subcontracts. Operator shall have the right to engage a subcontractor to conduct the physical operation, maintenance and repair of the Public Parking Structure. Any such entity shall be subject to the prior written approval of City, such approval not to be unreasonably withheld or delayed, provided that City may base its approval or denial, in part, on the financial condition of the subcontractor. Section 24. Anti-Discrimination. Operator agrees that this Agreement is made and accepted on and subject to the following conditions: That there will be no discrimination against or segregation of any person or group of persons, on account of race, color, religion, national origin, sex, sexual orientation, AIDS, AIDS-related condition, age, marital status, disability or handicap, or Vietnam Era veteran status in the leasing, subleasing, transferring, use, occupancy, hiring, employment, tenure or enjoyment of the Public Parking Structure, nor will Operator or any person claiming under or through it establish or permit any practice or practices of discrimination or segregation with reference to the Public Parking Structure. Section 25. Attorneys' Fees. In the event that either party fails to comply with any of the terms of this Agreement and the other party commences legal proceedings to enforce any of 17 OPERATING AGREEMENT v18 Item 70 - Page 24 -120- the terms of this Agreement, the prevailing party in any such suit will receive from the other attorneys' fees including applicable court costs. Section 26_ Notices. Any and all notices to be given under this Agreement or required by law to be served on either of the parties may be given by first-class mail deposited in the United States mail,postage prepaid,addressed as follows: To City' City of Huntington Beach P.O. Box 190 2900 Main Street Huntington Beach, CA 92648 Attention: Director of Economic Development With a copy to: City of Huntington Beach P_O. Box 190 2000 Main Street Huntington Beach, CA 92648 Attention: City Attorney To Operator: CIM Group 6922 Hollywood Blvd., 9th Floor Hollywood,CA 90028 Attention: General Counsel With copy to: Fragner Seifert Pace&Winograd, LLP 300 S. Grand Ave, 14th FL Los Angeles, California 90071 Attention: Matthew Fragner Any notices may be personally served on the party to be given notice. Any notice served by means of the United States mail will be effective three (3) business days from the date of mailing. Section 27. Execution. This Agreement may be simultaneously executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all together shall constitute but one and the same Agreement. Section 28. Validity. If any one or more of the terms, provisions, promises, covenants, conditions or option provisions of this Agreement shall to any extent be adjudged invalid, unenforceable, void or voidable for any reasons whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants, conditions, and option provisions of this Agreement shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law_ Section 29. Amendments; City Approval_ This Agreement may only be amended in writing executed by both of the parties hereto_ Except as otherwise expressly provided in this Agreement and only to the extent permitted by applicable law, rule or regulation, approvals 18 OPERATING AGREEMENT vl& -121- Item 7e - Page 25 required of City (including any amendments to this Agreement) may be granted by the written approval of the City Administrator or designee. Notwithstanding the foregoing, the City Administrator or designee may, in his or her sole discretion, refer to the City Council any item requiring City approval. Section 30. Entire Agreement. It is understood that there are no oral agreements between the parties affecting this Agreement, and this Agreement supersedes and cancels any and all previous negotiations and understanding, if any, between the parties and none will be used to interpret or construe this Agreement. [remainder of page left intentionally blank] [signatures on following pages] 19 OPERATING AGREEMENT v 18 Item 70 - Page 26 -122- OPERATOR: CIM/Huntington,LLC, a California limited liability company By: CIM Urban Real Estate Fund,L. P., sole member, By: CIM Urban Fund, GP,LLC, its general partner Date: t-' 2ttog By: Name: Nicholas V.Nfar-osoff Title: Secretary Date: t��2`tf o By: Name: SV c ok l(.vlxj Title: V P [remainder of page left intentionally blank] [signature on following pages] 20 OPERATING AGREEMENT vI8(execution) -123- Item 7e - Page 27 CALIFORNIA ALL.-PURPOSE ACKNOWLEDGMENT State of California County of s C�4 ZL before me,�p��� e Here Ins me and Title of fibs officer personally appeared Name(s)of Sig r(s) who proved to me on the basisrwle; tisfactory evidence to be the person( whose namee subscribed to the Othin instr ment and adged to me that executed the e i t r tKlr authorized ity(1), and thatrbr gnature�on the instrument the persone entity upon behalf of which the person a , cuted the instrument. Gom n #�155445472 1 certify under PENALTY OF PERJURY under the laws .� NotaryPu 0-Cohort` of the State of California that the foregoing paragraph is Los Artgetes County true and correct. tVly Cornet.Fxphes Jan 29,2009 WITNESS my hand and official seal. Sign 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• j� `� LLC,� Document Date: Number of Pages: Signer(s)Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: Signer's Name: ❑ Individual ❑ Individual ❑ Corporate Officer—Title(s): ❑Corporate Officer—Title(s): ❑ Partner—C Limited O General _ ❑Partner—❑Limited ❑General ❑ Attorney in Fact a I]Attorney in Fact o - ❑ Trustee Top of thumb here ❑Trustee Top of thumb here ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: MOW National Notary Association-9350 De Soto Ave.,P.O.Box 2402-Chatsworth,CA 91 31 3-24 02-w .NationafNotary.org Item#5907 Reorder:Call Toll-Free 1-800-876-6827 Item 7. e Page 28 -124- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County ofz";ic dm l'a,S O efore me, D Here Insert N And Title the Officer personally appeared Nama(s)of Stigner(s) who proved to me on the basis of satisfactory evidence to be the person( whose namMnowle�gled subscribed to the within instr ent and ac to me that elKey executed the same i t , rltVir authorized ity(iA Is r t it and that by s7ignature(s5 on the instrument the person, or the entity upon behalf of which the person acted,executed the instrument. M70 MUS I certify under PENALTY OF PERJURY under the laws Com2 of the State of California that the foregoing paragraph is Z Notary Ra*---Ccaifornia true and correct. Los Angetes County - MY Conm Dphn ion 29.2009 WITNESS my hand and official seal. Signatt�f_r��l�,2 � Place Notary Seal Above Signature of Notary P ti 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 Docuuqm'�ent f� n_-_ jf Document Date: /t/Q Number of Pages: Signer(s)Other Than Named Above: A 11CI D1? S j/ "LyCkS' Capacity(ies)Claimed by Signer(s) Signer's Name: Signer's Name: 0 Individual ❑Individual ❑ Corporate Officer—Title(s): O Corporate Officer—Title(s): ❑ Partner—❑Limited ❑General ❑Partner—❑ Limited 0 General ❑ Attorney in Fact ❑Attorney in Fact ❑ Trustee Top of thumb here ❑Trustee Top of thumb here ElGuardian or Conservator ElGuardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: ©2007 National Notary Association•9350 De Soto Ave.,P.O.Box 2402-Chatsworth,CA 91313-2402•www.NationalNotaryorg Item#5907 Reorder.Call Toltfree 1-800-876-6827 -125- Item 7. - Page 29 ATTEST: CITY OF T GTON BEACH By: City rk City istrator _APPROVED AS TO FORM: r i tto y q1h 1 1 7610E 21 28683 Item 7. - Page 30 -126- ACKNOWLEDGMENT STATE OF CALIFORNIA ) )ss COUNTY OF ORANGE ) On January 14,2009 before me,P.L. Esparza,Notary Public, personally appeared Joan L. Flynn and Fred Wilson who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities,and that by their signatures on the instrument the persons,or the entity upon behalf of which the persons 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. P L WARIA ie Cat*)5W179 NOOMY PkAft-cowMy Comm.Eupt"Aug 4.24 j. "P V W qF "'N a a (Notary Signature " -1 27- Item 7m a Page 31 EXHIBIT A LEGAL DESCRIPTION OF PARKING PARCEL [behind this page] Item 70 - Page 32 -128- EXHIBIT "A-1" LEGAL DESCRIPTION - PARKING PARCEL PARCEL 1: THAT PORTION OF LOT 1 OF TRACT NO. 16406, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA,AS PER MAP RECORDED IN BOOK 870,PAGES 47 THROUGH 50, INCLUSIVE,OF MISCELLANEOUS MAPS, RECORDS OF THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF A LINE PARALLEL WITH AND DISTANT 2.83 FEET NORTHEASTERLY, MEASURED AT RIGHT ANGLES,FROM THE SOUTHWESTERLY LINE OF SAID LOT 1 WITH THAT CERTAIN COURSE ALONG THE SOUTHEASTERLY BOUNDARY OF SAID LOT 1,SAID COURSE BEING SHOWN AS NORTH 41'37'10"EAST 124.55 FEET;THENCE, NORTH 48021'52"WEST,ALONG SAID PARALLEL LINE,4.70 FEET TO THE POINT OF BEGINNING;THENCE, ALONG THE FOLLOWING 10 COURSES AND DISTANCES: 1- NORTH 48'21'52"WEST, ALONG SAID PARALLEL LINE,336.83 FEET; 2- NORTH 41°38'08"EAST, 148.50 FEET, 3- SOUTH 48-21'52"EAST, 77.00 FEET; 4- SOUT164-55'17"EAST, 19-30 FEET; 5- SOUTH 48°21'52"EAST, 30.00 FEET; 6- NORTH 41°38'08"EAST 182.00 FEET; 7- SOUTH 48°21'52"EAST 275.00 FEET; 8- SOUTH 41'38"08"WEST 211.58 FEET; 9- NORTH 48°21'52"WEST 63.67 FEET; 10- SOUTH 41°38'08"WEST 124.42 FEETTO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION THEREOF LYING ABOVE ELEVATION 25.66 FEET(NAVD 88). ALSO EXCEPTING THEREFROM THAT PORTION THEREOF LYING BELOW ELEVATION 9.00 FEET(NAVD 88). ALSO EXCEPTING THEREFROM THAT PORTION INDICATED AS"COMPONENTS"AS DEFINED IN ARTICLE 1.18 OF THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANT OF RECIPROCAL EASEMENTS_ CONTAINING AN AREA OF 2.37 ACRES (103,331 SQUARE FEET)MORE OR LESS. ALSO SHOWN ON SHEET 3 ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. UAND Sli vim? L S7 '`F.� MICHAEL StMO , P.L_S_ 6034 J � 0 REGISTRATION EXPIRES 6/30/09 Exp. 6/30/09 No. 6034 ATE 4Z OF CAL SHEET EXHIBIT "A-1 TAIT & ASSOCIATES INC. THE STRAND-PARKING GARAGE Engineering Surveying Environmental 1 O F 4 155 5TH STREET 701 PARKCENTER DRIVE,SANTA ANA,CALIFORNIA 92705 HUNTINGTON BEACH,CA TEL.(714)560-8200 -129- Item 7e - Page 33 EXHIBIT "A-1" LEGAL DESCRIPTION - PARKING PARCEL PARCEL 2- THAT PORTION OF LOT 1 OF TRACT NO. 16406, IN THE CITY OF HUNTINGTON BEACH, COUNTY OF ORANGE, STATE OF CALIFORNIA,AS PER MAP RECORDED IN BOOK 870,PAGES 47 THROUGH 50, INCLUSIVE,OF MISCELLANEOUS MAPS, RECORDS OF THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF A LINE PARALLEL WITH AND DISTANT 2.83 FEET NORTHEASTERLY, MEASURED AT RIGHT ANGLES,FROM THE SOUTHWESTERLY LINE OF SAID LOT 1 WITH THAT CERTAIN COURSE ALONG THE SOUTHEASTERLY BOUNDARY OF SAID LOT 1, SAID COURSE BEING SHOWN AS NORTH 41'37'10"EAST 124.55 FEET;THENCE, NORTH 48'21'52"WEST, ALONG SAID PARALLEL LINE,4.70 FEET; THENCE,ALONG THE FOLLOWING 14 COURSES AND DISTANCES: 1- NORTH 48'21'52"WEST,ALONG SAID PARALLEL LINE, 336.83 FEET; 2- NORTH 41'38'08"EAST, 148.50 FEET TO THE POINT OF BEGINNING; 3- NORTH 48'21'52"WEST, 15.93 FEET TO A POINT OF THE NORTHWESTERLY LINE OF SAID LOT 1; 4- NORTH 41*37'11"EAST,ALONG SAID NORTHWESTERLY LINE, 40.75 FEET,- 5- SOUTH 48'21'52"EAST, 15.93 FEET; 6- NORTH 41'38'08"EAST,2.00 FEET; 7- SOUTH 48'21'52"EAST,43.83 FEET; 8- SOUTH 59'00'03"EAST, 52.82 FEET; 9- SOUTH 77*09*19"EAST, 21.11 FEET; 10- SOUTH 48'21'25"EAST, 11.25 FEET; 11- SOUTH 41'38'08"WEST, 57.17 FEET; 12- NORTH 48'21'52"WEST, 30.00 FEET; 13- NORTH 64'55'17"WEST, 19.30 FEET; 14- NORTH 48'21'52"WEST,77.00 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION THEREOF LYING ABOVE AND BETWEEN AN ELEVATION OF 38.79 FEET ON THE NORTHWESTERLY LINE OF SAID PARCEL 2 AND AN ELEVATION OF 26.33 FEET ON THE SOUTHEASTERLY LINE OF SAID PARCEL 2 (NAVD 88). ALSO EXCEPTING THEREFROM THAT PORTION THEREOF LYING BELOW AND BETWEEN AN ELEVATION OF 30.46 FEET ON THE NORTHWESTERLY LINE OF SAID PARCEL 2 AND AN ELEVATION OF 18.00 FEET ON THE SOUTHEASTERLY LINE OF SAID PARCEL 2 (NAVD 88). ALSO EXCEPTING THEREFROM THAT PORTION INDICATED AS "COMPONENTS"AS DEFINED IN ARTICLE 1.18 OF THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND GRANT OF RECIPROCAL EASEMENTS. CONTAINING AN AREA OF 0.15 ACRES (6,550 SQUARE FEET)MORE OR LESS. ALSO SHOWN ON SHEET 3 ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. SAND S(� L Si •pL�` MICHAEL SIMO , P. .S. 6034 0 REGISTRATION EXPIRES 6/30/09 Exp. 6/30/09 No. 6034 &74404ATE OF CAL SHEET EXHIBIT "A-1" �-7N TAIT & ASSOCIATES INC. THE STRAND-PARKING GARAGE Engineering Surveying Environmental 2 O F 4 155 5TH STREET A 701 PARKCENTER DRIVE,SANTA ANA,CALIFORNIA 92705 HUNTINGTON BEACH,CA TEL.(714)560-8200 Item 7" - Page 34 -130- SIXTH STREET _ NW LY LINE LOT t TRACT o N0. 16406 PER R7 WILY LINE PARCEL 2 N41'37'11"E _ 40.50' _ N48'21'52-W 15.93' 58' 2:83;%P.O:$.--PARCEL 2 ' :ram, ,N O �A J co =. n .i=', WILY LIMIT OF PACIEiO OA57 HWY .' `r ( INGRESS—EGRESS RAMP .,§W55'.17"E: = w 19.MY :- SE'LY LINE PARCEL 2 < o S48'2.1'52 E — O 57.,:1T, (} �z N ;%IiydERtDR SIDE-OF; R41'3S`08;'� ' 182.00' r a AIRY W`STRU('i6RE' u ^ }ttALt, TY.p) INTERLE}12 SIDE'OF;::' cic Q � M 04�1 ��[�� L. PARtCING STRW TV FF W � M: WA Li (TYP.}' 1 Uj o a :- POR_ LOT 1 TRACT NO. 16406 1� CC) M.M. 870/47-50 wiVOTES: C; z r Z 'PARCEL:T: F LJ OD `r L1k4lT;S`4•.•lIkV LEVEL EdV= 25:66' (NAVO-$8). N (CL-EAf A-NCE.ILEVATIOU IN,-UPPER LEVEL,PARKING P-AE --L) Q C L1MiTS O,F'LOwryR L1 VfL-ELEV=9.00' (NAVD.88) N (PINI$HED FLOOR'ELEVATION OF'THE-LOVi+ER LEVEL PAR04G FARCEL) J- - o PARCEL 2; Z I VMITS AF UPPER. 3.8:79':ON THE NVLY LINE-OF PARCEL 2..& t� J 26.33 Ort`THE-'SE1 LINE OF PARCEL:2(NAVD 86) z—, Q 58' 2:83% �o. � 1 (STREET TO RAMP CLEARAACE fLEVAT10N) d N LIMITS OF L01+IER,.ELfY^30:,46' ON TI{E N1`�•Y Lit3f OF, PAi10EL,.3 &, � P.O.B. PARCEL 1 18.QW ON•THE.-SE'LY LING OF PARCEL-2(NAVD 8B)' z J L1 : (STREET T4 RAMP FINISHEDSURFACF ELEVATION) 'S4.1'38'08"W 1.24.42' : 124.55(R1) INTERIOR=`SIDE OF' .PARKI G.STRLftTURE. N41'37'10"E 12' ^ WALL-(TYP) �P_O.C. PARCEL 1 30' MOST SE'LY LINE LOT;1 AND PARCEL 2 co 1 / TRACT NO- 16406 PER R1 ` 'S41'3$'fl8"1N 2f1.58' "� ALLEY- N 0 30 60 120 (IN FEET) NOTE: SEE SHEET 4 OF 4 FOR LINE TABLE DATA, LEGEND, BASIS OF BEARINGS, BENCHMARK INFORMATION AND I inch = 60 ft- SURVEYOR'S NOTES SHEET EXHIBIT "A-1" �� TAIT &ASSOCIATES INC. THE STRAND-PARKING GARAGE Engineering Surveying Environmental 3 O F 4 155 5TH STREET 701 PARKCENTER DRIVE,SANTA ANA,CALIFORNIA 92705 HUNTINGTON BEACH,CA TEL_(714)560-8200 -131 a Item . a Page 35 LEGEND: P_O.B. — POINT OF BEGINNING ------- — BOUNDARY LOT I TRACT NO. P.O.C. — POINT OF COMMENCEMENT 16406 M.M. 870/47-50 — INTERIOR SIDE OF PARKING (RI) — RECORD DATA PER TRACT NO, PARCEL WALL 16406 M.M. 870/47-50 — PARKING PARCEL DESCRIBED IN EXHIBIT "A-1" PARCEL 1 PARKING PARCEL DESCRIBED IN EXHIBIT "A—t" PARCEL 2 BASIS OF BEARINGS: BEARINGS HEREON ARE BASED ON THE BEARINGS BETWEEN O.C.S_ HORIZONTAL CONTROL STATION CPS 5019 AND STATION CPS 5034R1 BEING NORTH 33'33'25- WEST PER RECORDS ON FILE IN THE OFFICE OF THE ORANGE COUNTY SURVEYOR. BENCHMARK: BENCHMARK ID: STANDARD 1—RM2 DESCRIBED BY OCS 2002: FOUND 3 3/4" OCS ALUMINUM BENCHMARK STAMPED "STANDARD—I—RM2" SET IN AN ORANGE COUNTY SURVEYOR WELL MONUMENT. MONUMENT IS LOCATED IN THE SOUTHWEST CORNER OF THE INTERSECTION OF PACIFIC COAST HIGHWAY AND 12TH STREET, 27 FT. NORTHEASTERLY OF THE BIKE PATH ALONG THE BLUFF AND 66.3 FT. SOUTHWEST OF THE CENTERLINE OF THE SOUTHBOUND LANES ALONG PCH 6.6 FT. SOUTHEAST OF THE PROLONGATION OF THE CENTERLINE OF 12TH STREET, MONUMENT IS SET 1.0 FT_ BELOW GROUND SURFACE, ELEVATION: 30.817 FEET (NAVD 88, 1995 ADJUSTMENT) SURVEYOR'S NOTES: t. THE EXHIBITS GENERATED HEREIN ARE FROM THE APPROVED RECORD PLANS FOR THE SUBTERRANEAN PARKING STRUCTURE PROVIDED TO THE SURVEYOR- 2- A CONCRETE WALL THICKNESS OF I FOOT (12 INCHES) WAS USED ALONG THE ENTIRE PERIMETER OF THE SUBTERRANEAN PARKING STRUCTURE, AND MAY VARY. 3. THE LIMITS OF THE UPPER AND LOWER LEVEL ELEVATIONS SHOWN HEREIN WERE TAKEN FROM THE APPROVED RECORD PLANS FOR THE SUBTERRANEAN PARKING STRUCTURE PROVIDED TO THE SURVEYOR. LINE TABLE DATA LINE BEARING DISTANCE Lt N48'21'52"W 4.70' L2 S48'21'52"E 43.83' L3 S59-00'O3""E 52.82' L4 S77'09'19"E 21.11' LS I S48"21'52"E 1 11.25' SHEET EXHIBIT"A-1 �� TAIT ASSOCIATES INC. THE STRAND-PARKING GARAGE Engineering Surveying Environmental ®� 4155 5TH STREET 701 PARKCEt1TER TEL(714)560-200 CALIFORNIA 92705 HUNTINGTON BEACH,CA Fern 7. - Page 36 -132- EXHIBIT B ]LEGAL DESCRIPTION OF PROJECT SITE [behind this page] -133- Items 7m - Page 37 EXHIBIT "B" All that real property in the City of Huntington Beach, County of Orange, State of California described as follows: Being Lot I of Tract No. 16406 in Book 870, Pages 47'through 50, Inclusive of Miscellaneous Maps, Records of Orange County,California. Exhibit "B, " page 1 Item 7e - Page 38 -134- t"9 o g'Po SHEET 4 V 4 EASEMENT NOTE; TRACT CT U\ O. 16406 N ®� (ALL OF , 16406)AIIVE A 0'w10C EASCICENT AHD 2.'-01 EASEN[Nt U UUU ���111(/^'ll����099 V vS./I`V ���!lIIII � TRACT N0, 16406) OA FOR CRAINACC,VTKI(Y,PEDCSTT+IAN ANO YEVIICUtM IN THC Cltt Or NUNTNCTON BEACH,COUNTY Of ORANGE,STATE Of CALIFORNIA HVA10ER Of LOTS: 1 Dvaoosfs ocolutco To TN(Duaw<Nfato.. FOR CONDOMINIUM PURPOSES o 4o no l20 140 [n ACRES C0.052 AREA 2,D66OAte OP SVRYEY: MARCH 2O03 MICHAEL SIMON,P.L.S. 6034 TAUT do ASSOCIATES,INC. v SCALE: DATE OF SVAVCY: MARCH 2O03 rp0Yu o ow sr..[AXD X.IttP 1 0 22 I IOVVD IrN,t u'0 rAWP. r niu•fD LL ft K,REIN,rP a ^ ^VtN,rP CXfrl l/,+, Nq ItrPtO W,3e01• >> '• y I C N0,wt.,Ai.t0•10.1. 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I erf6frA OOI.OrGtEI. EA I y� tMOYWEUrC IL I i �� I Iz DRIVEWAY a ;�..., c•a msna I• n _ _"_"- — ... � ,' / ,..,�..P;;... ...WALKIYAY,-f ____81'_J'j_.JL MNN STREEbCCNNECTOR I 14 �_ -'WJ�PTQPARfgRGHEi(JW:.." ••A+- =aawreu �' j•.��'l uea+ow. tS051xD5izSEEt it k a E-.! [ 6kY Qi [ fi{j i t ry'.' d v I I I ! O N _ I II I _ _ Isi SM SIMI Dii 1 "' '' I i NOT A PA I� j 11 Sra I BLDG C I ICJ H�Z7LIDiRTV4TFT�'RW I 155 Six a1REE1 1 j .. 1 120 SrH S1REE1 I `. NO PART I� I I � r r ' nlrsx a a,uro I � dp15 1:......:: t I t f i I I I 4 _ ' p� ..... ...........•........................._.......... .................................. -".................................................... ...._.I............ _ ..-- ---- -------. ..°_. .Rx. b- -•--._.........................._..._---•-•--............ ' rI .................................................___-_-_.._._....._........_......._.._....._._a.-----.-. ........ __..._........................_.._...__.. ................. p V........................_-......_.......-......._.�nciJG_�9eSI�lt�tilY�_ _ _I-____� "------------ -- + - --- -- - T_ ___ _ ____ T ___ I .-- EXHIBIT D STANDARDS OF MAINTENANCE During the term of the Agreement and any extensions hereof, Operator shall: 1. Clean and maintain all surfaces of the Public Parking Structure and keep such surfaces level and evenly covered with the type of surfacing material originally installed thereon, or such substitute thereof as shall be equal thereto in quality, appearance and durability; 2. Remove all papers, debris, filth and refuse from the Public Parking Structure and wash or thoroughly sweep paved areas; 3. Remove trash from trash receptacles and clean trash receptacles; 4. Clean, maintain, repair and replace entrance, exit and directional signs, traffic control signage,markers and lights into and with the Public Parking Structure; 5. Keep the parking areas, stairways, elevators and other portions of the Public Parking Structure well-lit from dusk each day until dawn at least during the applicable hours of operation of the Public Parking Structure, and clean,relamp and reballast all lighting fixtures; b. Maintain,repair and replace striping and curbing; 7. Maintain and replace as necessary the landscaping surrounding the Public Parking Structure; 8. Maintain and repair the Public Parking Structure, as needed; 9. Repaint and refinish all painted and finished surfaces; 10. Clean, maintain and repair all stairs, stairwells and stairwell doors within the Public Parking Structure; 1 l_ Clean,maintain, repair and operate all elevators; 12_ Maintain, repair and replace, if needed, all mechanical, electrical and utility facilities and systems that are a part of or serve the Public Parking Structure, including, without limitation, sprinkler and fire control systems, parking revenue control equipment, parking access control equipment, security systems and equipment, mechanical venting systems, lighting and emergency lighting systems, rollup doors and traffic barriers; 13. Making all repairs, improvements or alterations required to comply with applicable laws; 14. Except to the extent maintained by a utility company, maintain the Utility Facilities located within the Public Parking Structure, other than those which are owned by Operator or are exclusively serving the Retail Parcel pursuant to the Operator Utilities Easement; Item 7. o Page 42 -138® 15. Obtain and maintain the public liability insurance and property/casualty insurance required in the Operating Agreement; and 16. Provide, or cause to be provided, reasonable security services within the Public Parking Structure. 17. Without limiting any obligation in any other agreement, comply with all maintenance and management standards applicable to the Public Parking Structure and the Parking Parcel set forth in the Agreement Containing Covenants, License and Agreement Regarding Maintenance, and CC&R's. -139- Item 7. - Page 43 POLICY NUMBER: CL 4572297 COMMERCIAL GENERAL LIABILITY CG 20 2611 85 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Person or Organization: City of Huntington Beach,its elected or appointed officials,agents,officers,and employees; Redevelopment Agency of the City of Huntington Beach,its elected or appointed officials,agents, Officers,and employees. (If no entry appears above,information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement_) WHO IS AN INSURED(Section 11)is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you. cG 20 261185 © Insurance Services Office.Inc_,1984 APPROVED AS T`{ LO,� FORM t V ,k,t/ _It(Zsbo JENNIFER MCGRATI-I,City Attomey Item 7e - Page 44 -140- i Fora.4MBFIJ Ns (Rev. May 1.1942)X LENDER'S LOSS PAYABLE ENDORSEMENT 1, Loss or damage,if any.under this policy,shall be paid to the Payee named on the first page of this policy,its successors and assigns.hereinafter referred to as"the Lender,"in whatever form at capacity its interests may appear and whether said interest be vested in said Lender in its individual or in its disclosed or undisclosed fiduciary or representative capacity,or other wise,or vested in a nominee or trustee of said Lender. 2. The insurance under this policy,or any rider or endorsement attached thereto.as to the interest only of the Lender,its successors and assigns,shall not be invalidated nor suspended:(a)by any error,omission,or change respecting the owner- ship,description,possession,or to cation of the subject of the insurance or the interest therein,or the title thereto-.(b)by the commencement tit foreclosure proceedings or the giving of notice of safe of any of rho property covered by this policy by vil- tue of any mortgage or trust deed:(cl by any breach of warranty,act,omission,neglect,or non-compliance with any of the provisions of this policy,including any and all riders now or hereafter attached thereto,by the named insured,the borrower, mortgagor.truster,vendee,owner,tenant.warehouseman,custodian,occupant_or by the agents of either or any of them or by the happening of any event permitted by them or either of them,or their agents,or which they failed to prevent.whether occurring before or after the attachment of this endorsement,or whether before or after a loss,which under the provisions of this paficy of insurance or of any rider or endorsement attached thereto would invalidate or suspend the insurance as to the named insured, excluding herefrom, however, any acts or cm4sions of the Lender while exercising active control and management of the property. 3. In the event of failure of the insured to pay any premium or addition)premium which shall be or become due under the terms et this policy or on account of any change in occupancy or increase in hazard not permitted by this policy,this Company agrees to give written notice to the Lender of such non-payment of premium after sixty(601 days iron and withinbne hundred and twenty(120)days after due date of such premium and it it a condition of the continuance of the rights of the Lender hereunder that the Lender when so notified in writing by this Company of the failure of the insured to pay such premium shall pay or cause to be paid the premium due within ten(10)days foUowfng receipt of the Company's demand in writing therefore- if the Lender shall decline to pay said premium or additional premium, the rights of the tender under this Lender's Loss Payable Endorsement shalt not be terminated before ten t101 days after receipt of said written notice by the Lender. Q. Whenever this Company shag pay to the Lender any sum for loss or damage under this policy and shall claim that as to the insured no liability therefore exists, this Comparry,at its option,may pay to the Lender the whole principal sum and in- terEst and other indebtedness due or to become due from the insured,whether secured or unsecured,(with:efund of a0 in- terest not accrued),and this Company,to the extent of such payrnenr,shall thereupon receive a full assignment and transfer. without recourse,of the debt and ail rights and securities held as collateral thereto. 5- if there be any other insurance upon the within described property-this Company shall be liable under this policy as to the Lender for the proportan of such lot or damage that the sum hereby insured bears to the entire insurance of similar character on said property under policies held by.payable to and expressly consented to by the Lender-Any Conuibution Clause;rfcluded in any Fallen Building Clause Waiver or any Extended Coverage Endorsement attached to this contract of in- surance is hereby nullified.and also any Contribution Clause in'any other endorsement or rider a reached to this contract of in- surance is hereby nullified except Contribution Clauses for the compliance with which the insured has received reduction in the rate charged or has received extension of the coverage to include hazards,other than fire and congl"rance with such Con- tribution Clause is made a par,of the consideration for insuring such other hazards-The Lender upon the payment to it of the full amount of its claim,will subrogate:his Company(pro rata with all other insuters contributing to said payments to all of the Lender's rights of conuioutiort under said other insurance)- 6- This Company reserves the right:o cancel this policyal any time,as provided by its terms,but in such case this policy Shall continue in force for the benefit of the Lender for ten t 10)days after written noticed of such cancellation is received by the Lender and sh-4ll then cease. 7. This policy shall remain irf full force and effect as to:he interest of the Lender for a.period often(1,0)days after its expira- tion unless an acceptable policy in renewal thereof with loss:hereunder payable to rho Lender in accordance with the terms of this Lender's Loss Payable Endorsemeat. shall have been issued by some insurance company and accepted by the Lender- 6_ Should legal title to and beneficial ownership of any of tt:e property covered under this policy become vested in the Lender or its agents:insurance under this policy shad continue for the term thereof for the benefit of the Lender but,in such event, any privileges granted by this Lenders Loss Payable Endorsement which are not also granted the insured under the terms and conditions of this policy and!or under other riders or endorsements attached thereto shall not apply to the insurance hereunder as respects such property_ 9. All notices herein provided to be given by the Company to the Lender in connection vrith this policy and this Lender's Loss Payable Endorsement shall be mailed to or de'ivered to the Lender at its office or branch described on the first page of the i policy- i Approved: Board of Fire Underwriiets of the Pacific. California Hankers Association, Committee on Insu ranee -141- Refire 7m - Page 45 OATECMM/DD/YYYY> PRo AOEI Risk Insurance Services West, Inc. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONH-,Y Aan Los Angeles CA Office AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS 707 Wilshire Boulevard CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE Suite 2600 COVERAGE AFFORDED BY THE POLICIES BELOW. Los Angeles CA 90017-0460 USA H INSURERS AFFORDING COVERAGE NAICC# a PHONE 866 283-7122 FAX- 847 453-5390 INSURED INSURER A: Insurance Company of the State of PA 19429 CIM Group, Inc. INSURERB: National Union Fire Ins Co of Pittsburgh 19445 E 6922 Hollywood Blvd i; suite #900 INSURER C: LOS Angeles CA 90028 USA INSURER D: a+ 'O INSURER E: THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOT WITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECTTO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES- AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LIMITS SHOWN ARE AS REQUESTED INSR ADDI POLICY EFFECTIVE POLICY EXPIRATION LTR 1NSR TYPE OF INSURANCE _POLICY NUMBER D ATE(MMIDDIYY) DATE(MMN-DDIYY) UMITS B GE ERALLLLBILITY GL4572297 11/23/08 11/23/09 EACH OCCURRENCE S1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED 11,000,000 PREMISES(Ea occwemc) CLAIMS MADE © OCCUR p A.•onc Person w PERSONAL&ADV INJURY S1,000,000 m ❑ w GENERAL AGGREGATE $2,000,000 w n GENT AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMPIOP AGG 12,000,000 23 POLICY [] PRO-a LOC p IECT AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT p ANY AUTO (Ea accidcnl} Z ALL OPINED AUTOS BODILY INJURY � SCHEDULED AUTOS (Pu person) 4. L HIRED AUTOS u BODILY INJURY NON OWNED AUTOS (Pt-ccidem) PROPERTY DAMAGE (Pcr -idem) 'R GARAGE LIABILITY AUTO ONLY-EA ACCIDENT H ANY AUTO OTHER THAN EA ACC .AUTO ONLY AGG B EXCESS/UMBRELLA LIABILITY BE9834468 11/Z3/08 11 EACH OCCURRENCE OCCUR ❑ CLAIMS MADE AGGREGATE S25,000,000 DEDUCTIBLE RETENTION $10,000 A wC 4 S 1 1 8 - �( ASC S7.aTU- U7H- WORKERS COMPENSATION AND workers' Comp. C4 ORY LIMITS ER EMPLOYERS'LIABILITI' A wC3426659 01i01/08 0I/01/09 E.L E.ACHACCtoENT 41.000,000—` .ANY PROPRIETOR PARTNER:EXECUTIVE Workers' COm ADS OPFICER,MEN4BEREXCLUDED'..' p' EL DISEASE-EAEMPLOYEE $1,000,000 Byes.dcscnbc undo SPECIAL PROVISIONS E.L.DISEASE-POLICY LIMIT S1,000,000 bcto•• �I'g OTHER P DESCRIPTION OF OPERATIONSiLOCATIONS.�%'EHICLES!EXCLUSIONS:ADOE D UN ENDORSEMENT-SPECI AL PROVISIONS Named Insured Includes_ CIM/Huntington, LLC Location: The strand parking structure, 1S5 Fifth Street, Huntington Beach. City of Huntington Beach is added as an Additional Insured as required by written contract- Umbrella includes per GE 2 lEIGA CAhTCELGATTON city of Fiunti ngton Beach SHOULD ANY OF THE AbovE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION Attn: City Risk Manager DATE THEREOF-THE ISSUING INSURER WILL ENDEAVOR TO MAIL P-O- BOX 190 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. �+ Huntington Beach CA 92648 USA BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY 7 OF ANY KIND UPON THE INSURER.ITS AGENTS OR REPRESENTATIVES .AUTHORIZED REPRESENTATIVE - - cw y✓c�'ACORD`Gf)✓RPORA'tlOi`T_h9ff8� ACOI2D75 20tIf10S .. _-- ._. - JENNIFER McGRATH, CIF, Item 7e e Page 46 -142- Attachment to ACORD Certificate for cIM Group, Inc. The terms,conditions and provisions noted below are hereby attached to the captioned certificate as additional description of the coverage afforded by the insurer(s).This attachment does not contain ail terms,conditions,coverages or exclusions contained in the policy_ INSURER INSURED CIM Group, Inc. INSURER 6922 Hollywood Blvd suite #900 INSURER LOS Angeles CA 90028 USA INSURER INSURER ADDITIONAL POLICIES If a policy below does not include limit information,refer to the corresponding policy on the ACORD certificate fort for policy limits_ ADD'L POLICY NUMBER POUCY POUCV t' R INSRD TYPE OF INSURANCE EFFECTIVE EXPIRATION LTR POLICY DESCRIPTION DATE .DATE LIMITS DESCRIPTION Or OPERATIONS:LOCATIONS:VEHICLE 'EXCLUSIONS ADDED BY ENDORSEMEN I SPECIAL PROk IS IONS location limit_ Cancellation Provision shown herein is sub)-ect to shorter or longer time periods depending on the jurisdiction of, and reason for, the cancellation. Certificate No: 570031766886 -143- Item 70 - Page 47 ACORD. EVIDENCE OF COMMERCIAL PROPERTY INSURANCE �piii2snoos' THIS IS EVIDENCE THAT INSURANCE AS IDENTIFIED BELOW HAS BEEN ISSUED,IS IN FORCE,AND CONVEYS ALL THE RIGHTS AND PRIVILEGES AFFORDED UNDER THE POLICY. PRODUCER NAME,CONTACT PHONE (866) 283-7122 NAIL NO: 19437 PERSON AND ADDRESS AfC NO _ COMPANY NAME AND ADDRESS Fnx ac,Nu: (847) 953-5390 E-MAIL Lexington Insurance Company D 777 S- Figueroa Street Aon Risk Insurance services west, Inc. Los Angeles CA 90017 USA Los Angeles CA office m 707 Wilshire Boulevard Suite 2600 Los Angeles CA 90017-0460 USA = m v CODE: SUB CODE N AGENCY 570000016789 IF MULTIPLE COMPANIES,COMPLETE SEPARATE FORM FOR EACH CUSTOMER to#. O NAMED INSURED AND ADDRESS = CIM Group Inc. LOANNUMBER POLICY NUMBER '6922 Hollywood Blvd 5467367 Suite #900 Los Angeles CA 90028 USA EFFECTIVE DATE _ F.JfP{RATION DATE. .CONTINUED UNTIL 11/23/2008 11/23/2009 TERMINATED IF CHECKED �n v ADDITIONAL NAMED INSURED(S) THIS REPLACES PRIOR EVIDENCE DATED t` PROPERTY INFORMATION(Use additional sheets if more space is required) o LOCATIOWDESCR1PTION Location: The Strand parking structure, 155 Fifth Street, Huntington Beach. `^ 0 Z a, COVERAGE INFORMATION CAUSE OF LOSS FORM BASIC BROAD X SPECtAt OTHER � COMMERCIAL PROPERTY COVERAGE AMOUNT OF INSURANCE: S500,000,000 DED: 82 S,000 .2 YES No d BUSINESS INCOME/RENTAL VALUE x If YES, LIMIT: included X Actual Loss Sustained #of months: U BLANKET COVERAGE X if YES,indicate amount of insurance on properties identified abover 5500,000,000 TERRORISM COVERAGE X Attach signed Disclosure Notice!DEC IS COVERAGE PROVIDED FOR"CERTIFIED ACTS"ONLY? X If YES, SUB LIMIT: S400,000,000 DED: IS COVERAGE A STAND ALONE POLICY? U YES, LIMIT: DED: DO ES COVERAGE INCLUDE DOMESTIC TERRORISM? X If YES. SUB LIMIT: included DED: COVERAGE FOR MOLD If YES, LIMIT: DED: MOLD EXCLUSION(If'YES",spedfy organization's form used) x Lx9512 (08/02) REPLACEMENT COST X AGREED AMOUNT x COINSURANCE X if YES. 0% EQUIPMENT BREAKDOWN(If Applicable) x If YES. LIMIT: S100,000,000 DED: S25,000 LAW AND ORDINANCE-Coverage for loss to undamaged portion of building x If YES. LIMIT: S500,000,000 DED- Demolition Costs Incr cost of construction X If YES, LIMIT: S2S,000,000 DED: -Incr.Cost of Construction If YES. LIMIT: DED: EARTHQUAKE(It Applicable) If YES, LIMIT: DED: FLOOD(it Applicable) X If YES. LIMIT: S100,000,000 DED WIND 1 HAIL(If Separate Policy) If YES, LIMIT: DED: PERMISSION TO WAIVE SUBROGATION PRIOR TO LOSS X _ REMARKS-Including Special Conditions(Use additional sheets if more space is required) Named Insured Includes: CIM/Huntington, LLC; Replacement Cost value: 132,610,000- Policy includes a business interruption extension of indemnity for 18 months_ Wind is an included peril unless excluded. Terrorism coverage Includes certified Acts and Domestic Terrorism. CANCELLATION THE POLICY IS SUBJECT TO THE PREMIUMS,FORMS,AND RULES IN EFFECT FOR EACH POLICY PERIOD. SHOULD THE POLICY BE TERMINATED,THE sy,� COMPANY WILL GIVE THE ADDITIONAL INTEREST IDENTIFIED BELOW 30 DAYS WRITTEN NOTICE,AND WILL SEND NOTIFICATION OF ANY CHANGES TO THE POLICY THAT WOULD AFFECT-THAT INTEREST,IN ACCORDANCE WITH THE POL)CY PROVISIONS OR AS REQUIRED BY LAW. -,+ ADDITIONAL INTEREST NAME AND ADDRESS LENDER SERVICING AGENT NAME AND ADDRESS city of Huntington Beach Attn: City Risk Manager P- P.O. Box 190 Huntington Beach CA 92648 USA MORTGAGEE AUTHORIZED REPRESENTATIVE (y/n✓L47Xc/7WitafttL VGL1MrA /iCJ�✓7u LOSS PAYEE- Wo hqg ACORD 28 (2003I10) ©ACORD CORPORATION 2003 U�j� JENNIFER McGRATH.Cit.-Atir.rric= Item 7e - Page 48 -144-