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Second Amended and Restated Disposition and Development Agreement

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Second Amended and Restated Disposition and Development Agreement SECOND AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT by and between the CITY OF SEASIDE and MONTEREY BAY RESORTS, LLC, a Nevada limited liability company 12425-0003\2134887v5.doc SECOND AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT THIS SECOND AMENDED AND RESTATED DISPOSITION AND DEVELOPMENT AGREEMENT (“DDA”, or “Agreement” or “Restated DDA”) is dated this 7th day of December, 2017 and is entered into by and between CITY OF SEASIDE, a California municipal corporation (“City”), and MONTEREY BAY RESORTS, LLC, a Nevada limited liability company (“Developer”). RECITALS A. The Successor Agency of the Redevelopment Agency of the City of Seaside (“Successor Agency”) and Seaside Resort Development, LLC previously entered into an Amended and Restated Disposition and Development Agreement dated February 5, 2014 (the “First Restated DDA”). B. Prior to the date hereof, the Successor Agency: (i) assigned the First Restated DDA to the City pursuant to an Assignment, Assumption and Administrative Agreement between the Successor Agency and the City; and (ii) conveyed the Property (as described therein and defined herein) to the City. C. The City intends to attempt to obtain a Master Taxing Entity Agreement (i.e., “compensation agreement”), executed by the thirteen taxing entities (the “Taxing Entities”) which have legal rights to a “compensation agreement”, with respect to the First Restated DDA, and said Master Taxing Entity Agreement permits the City to consent to an assignment of the First Restated DDA to Developer and to amend the First Restated DDA provided the amendments do not reduce purchase prices or materially extend closing deadlines for sales of portions of the Property. The amendments in this Agreement qualify as such permitted amendments. D. Developer desires to acquire from City the property that was conveyed by the Successor Agency back to the City, as described in Recital C above, which is the property that is described on Attachment No. 1 attached hereto as well as other property described on Attachment No. 1-A owned by the City on which a golf clubhouse is located (collectively, the “Property”), and develop, construct and operate thereon a development that will include the following (collectively, the “Project”): (i) a hotel component (the “Hotel Component”); (ii) a timeshare (or other residential, including condominiums) component as described in Section 2.1.1 below (the “Timeshare Component”), (iii) a residential lot component (the “Residential Component”) as described on Attachment No. 2 attached hereto and demolition of the existing golf clubhouse and construction of a new clubhouse to serve the Golf Courses and the Hotel Component, Timeshare Component, and Residential Component “Golf/Resort Clubhouse Component” (the “Scope of Development”), all subject to the Entitlement Conditions (defined in Section 1.1.22 below). The Property will be conveyed to Developer in phases (each, a “Phase”) as described more particularly on Attachment No. 1-B. As used herein, the term “Phase” means the development of Improvements on the land for the Phase, the land for the Phase, or both, as appropriate given the context in which such term is used. -1- 12425-0003\2134887v5.doc E. The Developer acknowledges that the City has legitimate municipal goals in assuring appropriate development of the Property. It is the intent of the Developer and the City that these goals be achieved by conditions that were included in the approval of certain City entitlements for the Project, described more particularly in Attachment No. 1-D (as amended, replaced or supplemented from time to time, the “Entitlement Conditions”), which Developer has agreed to comply with as part of its performance of this Agreement. F. The Developer has also agreed to provide the City rights to participate in the financial profits to be realized from portions of the Residential Component, all as described more particularly herein. G. The Project will substantially improve the economic and physical conditions in the City in accordance with public purposes and goals of the City. NOW THEREFORE, City and Developer agree as follows: ARTICLE 1. DEFINITIONS 1.1 Definitions As used hereinafter in this Agreement, including the attachments hereto, the following terms shall have the following respective meanings: 1.1.1 Affordable Units is defined in Section 10.1.3. 1.1.2 Certificate of Completion shall mean a certificate issued for a Phase pursuant to Section 6.14, in the form attached as Attachment No. 4. 1.1.3 City shall mean the City of Seaside, California, a municipal corporation, organized and existing under the laws of the State of California and having its office at 440 Harcourt Avenue, Seaside California 9395. 1.1.4 City Manager shall mean the City Manager of City, or his or her designee. 1.1.5 City Option to Repurchase shall mean City’s Option to repurchase the Property pursuant to Section 9.4 of this Agreement included in the documents in the form of Attachment No. 6 that will be used to convey each Phase of the Property to the Developer. 1.1.6 City Affordable Housing Program shall mean the City’s program for assisting the development of affordable housing under the City’s Inclusionary Housing Ordinance, Chapter 17.32 of the Seaside Municipal Code. 1.1.7 City Representatives/City Representatives, respectively, shall mean and include all of the respective predecessors, successors, assigns, agents, officials, employees, members, independent contractors, affiliates, principals, officers, directors, attorneys, accountants, representatives, staff, council members, board members, and planning commissioners of City or City, as the case may be, and of each of them. -2- 12425-0003\2134887v5.doc 1.1.8 Claims means any claims, demands, causes of action, suits, judgments, debts, costs, losses, penalties, fines, encumbrances, rights, obligations, causes of action, indemnities, liens, expenses (including but not limited to any claims for attorneys’ fees and costs and Remediation Costs), settlements, professionals’ fees, tax claims, claims for payment, claims for contribution or indemnity (whether statutory, contractual or equitable), or claims for costs, losses, expenses, compensation, liabilities or damages, of any and every kind or nature whatsoever, whether known or unknown, and whether based on strict liability, active or passive negligence, gross negligence, contractual or statutory liability, or otherwise, and whether seeking judicial, arbitral, administrative, or equitable relief or otherwise, costs and expenses of investigation, analysis, Remediation, and defense of any claim, and whether or not any such claim is ultimately defeated. 1.1.9 Close of Escrow shall mean, with respect to a particular Phase (or portion of a Phase), the recordation of the Grant Deed executed by City for such Phase (or portion of a Phase). 1.1.10 Complete Construction Documents shall mean the documents described in subsection 6.2.5. 1.1.11 Concept Design Drawings shall mean the drawings attached to the Scope of Development or such other concept design drawing as may be developed from time to time in accordance with this Agreement. 1.1.12 Control shall mean, for purposes of this Agreement, the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a corporation, partnership, joint venture, trust, or other association (subject to customary limitations in favor of other owners). 1.1.13 Credit Property is defined in Section 3.7. 1.1.14 Deed shall mean a grant deed conveying fee title to one or more of the Phases from City to Developer, in the form attached hereto as Attachment No. 6. 1.1.15 Design Development Drawings shall mean the drawings described in subsection 6.2.4. 1.1.16 Developer shall have the meaning set forth in Section 2.3. 1.1.17 Developer Affiliate shall mean a legal entity whose finances and management are controlled, directly or indirectly, by the direct or indirect owners of Developer, as shown by reasonable evidence delivered to City. 1.1.18 Developer Title Policy shall mean each policy of title insurance described in Section 5.5. 1.1.19 Development Plans shall mean and include such preliminary and final construction drawings and specifications, grading plans, landscape plans, Property development plans, plot plans, off-site improvement plans, architectural renderings and elevations, material -3- 12425-0003\2134887v5.doc specifications, parking plans, and other plans and documents as are required to be submitted to City or City pursuant to this Agreement or any applicable Laws. 1.1.20 Encumbrance shall mean and include any mortgage, trust deed, encumbrance, lien or other mode of financing real estate construction and development, including a sale and leaseback. 1.1.21 Entitlements shall mean general plan amendments, zone changes, zoning code amendments, development permits, conditional use permits, site plan reviews, design review permits, vesting tentative subdivision maps, approvals of plans submitted pursuant to Section 6.2, California Environmental Quality Act compliance, demolition permits, building permits, and grading permits, requirements of the Fort Ord Reuse Authority (“FORA”) and any and all other permits, licenses and entitlements of every kind required by the City in order to complete construction of the Improvements on the Property. 1.1.22 Entitlement Conditions or Project Conditions shall mean the City conditions of approval for the Project attached hereto as Attachment No. 1-D, as amended from
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