1 FIFTH AMENDMENT TO CONCESSIONS AGREEMENT
THIS FIFTH AMENDMENT TO AGREEMENT, dated for purposes of identification only this _____ day of __________________, 2022 (“Fifth Amendment”) is made and entered into by and between the CITY OF ANAHEIM, a municipal corporation, hereinafter referred to as “Owner,” and NEDERLANDER -GROVE, LLC, a California limited liability company, hereinafter referred to as “Manager.”
RECITALS:
WHEREAS, the parties have previously entered into a written agreement titled Concessions Agreement dated October 24, 2002 , as amended by that certain Amendment to Agreement dated May 26, 2009 (“First Amendment”) and by that certain Second Amendment to Agreement dated July 10, 2012 (“Second Amendment”), and by that certain Third Amendment dated June 16, 2015 (“Third Amendment”), and by that certain Fourth Amendment dated May 12, 2020 (“Fourth Amendment”), hereinafter all collectively referred to as the “Agreement”. The Agreement and th is Fifth Amendment shall be collectively referred to as the “Amended Agreement.” All capitalized terms not otherwise defined in this Fifth Amendment have the meaning set forth in the Agreement;
WHEREAS, the Term, as defined and extended pu rsuant to the provisions of the Agreement, currently expires on December 31, 2022; and
WHEREAS, Manager has requested that the Term be extended to December 31, 2023, and OWNER desires to agree such extension; and
WHEREAS, the parties desire to amend the Agreement in order to extend the Term to December 31, 2023 and modify certain provisions of the Agreement.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
1. Option to Extend Term Exercised . The second sentence of Section 2.2 of the Agreement is hereby amended to read:
“Pursuant to mutual written consent of Manager and Owner, the Term may be extended for an additional twelve (12) months, subject to all the terms and conditions of this Agreement, and so extended and subject to Section 2.4(b) below, the Term shall then continue to and including December 31, 2023.
Thereafter, Owner may, in its sole and absolute discretion, elect to extend the Term to December 31, 2024.”
2. Termination Events . The second paragraph of Section 2.4(b) of the Original Agreement is amended to read as follows:
2 “If pursuant to Section 2. 2, Manager and Owner mutually consent to extend the Term to and including December 31, 202 3 or thereafter , t hen commencing July 1, 2023 , this Agreement may be terminated by Owner on not less than six (6) months written notice in the event Owner determines that a Termination Event either (i) has occurred or (ii) is expected to occur prior to or within six (6) mon ths following the designated Termination Date.”
3. Pursuant to Section 2.2. as amended by this Fifth Amendment, the Manager and Owner hereby mutually consent to an extension of the Term to and including December 31, 2023.
4. Effect of Amendment . Except as expressly amended hereby, all the remaining provisions of the Agreement shall remain in full force and effect.
5. Effective Date. Following the execution of this Fifth Amendment by both parties, the amended terms set forth in this Fifth Amendment shall become effective as of the date of execution by Owner.
6. Counterparts. This Fifth Amendment may be executed and delivered in any number of counterparts, each of which, when executed and delivered shall be deemed an original and all of which together shall constitute the same agreement. Facsimile signatures shall be permitted.
7. Representation / Binding Effect of Amendment . By the signature herein, the undersigned represents that he/she is fully authorized to enter into this Fifth Amendment on behalf of the Manager and has the full legal authority to bind the Manager to all of the terms, conditions and provisions of this Fifth Agreement and that no other approvals or consents are necessary in connection therewith. All terms and conditions of the Fifth Agreement shall be binding upon the Manager.
IN WITNESS HEREOF, the parties hereto have caused this Fifth Amendment to be executed on the dates respectively set forth below.
[SIGNATURES ON FOLLOWING PAGE]
3 “OWNER”
DATE OF EXECUTION: CITY OF ANAHEIM,
a municipal corporation
________________________ By:___________________________________ Trevor O’Neil
Mayor Pro Tem
DATE OF EXECUTION: ATTEST:
________________________ By:____________________________________ Theresa Bass, City Clerk
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By:______________________________
Leonie Mulvihill
Assistant City Attorney
146405
“MANAGER”
DATE OF EXECUTION: NEDERLANDER-GROVE, a California limited liability corporation
________________________ By:____________________________________ Printed Name: ___________________________
Title:___________________________________