2020-090 -Approving a Disposition and Development Agreement

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(d) On the Sixth Hotel Anniversary Date if for the period between The Fifth Hotel Amniversary Date through the day before the Sixth Hotel Anniversary the RevPAR falls below $125.00. 5.12.5 Any application for conversion shall be subject to approval of all applicable City entitlements, including compliance with all affordable housing and inclusionary housing requirements. Developer understand and acknowledges that, in the context of processing the application to convert the hotel to apartments, the City cannot guarantee the ultimate outcome of any public hearings before the Planning Commission or the City Council or other public bodies of the City, nor prevent any opposition thereto by members of the public or other agencies affected by or interested in the Project. By entering into this Agreement, the City does not pre -commit or imply that the application to convert the hotel to apartments to be considered for approval will be approved. The City retains the discretion to approve, conditionally approve, or disapprove the application to convert the hotel to apartments. 5.13 Parking Structure and Sycamore Street. 5.13.1 City shall retain ownership of the Public Parking Parcel within the Parking Structure. Prior to issuance of any Certificate of Completion or Certificate of Occupancy, Developer shall provide an easement to the City for street, highway and public utility purposes over, under and upon Sycamore Street between 3rd Street and 4th Street. 5.13.2 Upon completion of the Parking Structure, City will enter into a Parking Operation Agreement with the Developer and Developer shall agree to manage and operate the Public Parking Structure. The Parking Operation Agreement shall (1) require that 211 parking spaces be available as Public Parking spaces; (2) require the Developer to pay all costs including the debt service on the financing for the Public Improvements; (4) maintain the Parking Structure consistent with the terms of Article 8; (4) set forth that the Developer shall be entitled to set the parking rates of the Parking Structure subject to the advance written approval by the City; (5) require that Monthly Parking Permits can only be issued with advance written approval by the City agreeing to the number of Monthly Permits that are authorized to be issued and the amount that will be charged per Monthly Parking Permit; (6) will agree that if any public parking spaces within the Public Parking Structure are utilized by the Mixed Use Project or the Hotel Project the parking rates for the Parking Structure will apply; and (7) shall provide for reciprocal access as necessary for the use of the Parking Structure by the Parties. Developer may manage the Parking Structure or Developer may enter into an agreement with a third party to manage the Parking Structure (hereinafter "Third Party Parking Agreement'). Any Third Party Parking Agreement shall contain indemnification and insurance for the benefit of the City and the Third Party Parking Agreement shall be approved in writing by the City prior to Developer executing the Third Party Parking Agreement. A copy of the Grant of Easements and Reciprocal Access, Parking Operation and Maintenance Agreement that will be executed by the Parties is attached hereto as Exhibit K 5.13.3 For years zero (0) to thirty (30), any income from the Parking Structure shall be distributed in the following order: (a) Payment of the Operator Fee as set forth in the Third Party Parking Agreement, if a one is executed by Developer in accordance with Section 5.13.2. 35 553 94.00049\3 3239203.12