39 COMMONS PARTNERS, LLC
2400 E. KATELLA AVENUE, SUITE 760, ANAHEIM, CALIFORNIA 92806 ▪ TELEPHONE (213) 533-8100 ▪ FAX (213) 533-8118
4889-3664-9027v2/022363-0028
December 9, 2022
Via Overnight Delivery and Email ([email protected])
City of Anaheim
200 South Anaheim Boulevard
Anaheim, California 92805
Attention: Sergio Ramirez, Economic Development Director
Re: Second Closing pursuant to that certain Amended and Restated Disposition and Development Agreement dated as of September 29, 2020 (the “DDA”), by and between the City of Anaheim, a California municipal corporation and Charter City (“City”), and 39 Commons Partners, LLC, a Delaware limited liability company (“Developer”)
Dear Mr. Ramirez:
This letter sets forth the agreement by Developer and City to waive certain City’s Conditions Precedent re the Second Closing set forth in Section 205.3 of the DDA and Developer’s Conditions Precedent re the Second Closing set forth in Section 205.4 of the DDA. All capitalized terms not otherwise defined in this letter shall have the meaning given such terms in the DDA. On or before the Second Closing, City and Developer agree to execute a separate Ground Lease for the Grocery Store Component (the “Grocery Store Component Ground Lease”) upon terms approved by City and Developer in each party’s sole and absolute discretion.
Developer hereby waives the following Developer’s Conditions Precedent re the Second Closing set forth in Section 205.4 of the DDA:
1. Section 205.4(c) – Review and Approval of Title. Provided that Developer shall have the right to reasonably review and approve title to the Grocery Store Component following the Second Closing.
2. Section 205.4(d) - Conditional Use Permit and Basic Concept Drawings.
3. Section 205.4(e) – Title Policy. Provided that Developer shall have the right to obtain a Title Policy following the Second Closing, and City shall pay its share of the cost of such Title Policy in accordance with the terms of Section 204 of the DDA
4. Section 205.4(f) – Executed Leases.
5. Section 205.4(h) – City Obligations. Provided that the City shall cause the OCHCA to issue a written termination of the “OCHCA Notice and Order” (as herein defined) at least five (5) business days prior to the Delivery Date (as defined in the Grocery Store Component Ground Lease).
Sergio Ramirez
December 9, 2022
4889-3664-9027v2/022363-0028
6. Section 205.4(j) - Loan Pham Lease Amendment and Recognition Agreement. Provided that the City shall cooperate with the Developer to obtain (i) an amendment to the Loan Pham Lease which shall provide, among other things, that the landlord under the Loan Pham Lease shall execute a Recognition Agreement at the request of the tenant under the Loan Pham Lease, and (ii) the landlord under the Loan Pham Lease shall execute a Recognition Agreement with the subtenant of the Loan Pham Property substantially in the form attached to the DDA as Attachment No. 10.
7. Section 205.4(k) - Transfer of Loan Pham Lease.
8. Section 205.4(l) - Refund of Liquidated Damages re Second Closing. Provided that Developer shall be entitled to a refund of the Liquidated Damages re Second Closing subject to the terms and conditions of the Grocery Store Component Ground Lease.
9. Section 205.4(m) – Environmental Condition. Provided that the City shall satisfy all conditions set forth in Section 205.4(m) following the Second Closing and the City shall perform Landlord’s Work (as defined in the Grocery Store Component Ground Lease) and obtain Remediation Approval (as defined in the Grocery Store Component Ground Lease).
City hereby waives the following City’s Conditions Precedent re the Second Closing set forth in Section 205.3 of the DDA:
1. Section 205.3(d) - Conditional Use Permit and Basic Concept Drawings. Provided that the Developer shall obtain approval by the City of a conditional use permit, if applicable, and the Basic Concept Drawings for the Grocery Store Component as set forth in Section 302 of the DDA following the Second Closing.
2. Section 205.3(e) - Commercial General Liability Insurance. Provided that Developer shall provide proof of commercial general liability insurance as required by the Grocery Store Component Ground Lease prior to the Delivery Date.
3. Section 205.3(f) - Executed Leases. Provided that City shall have the right to approve, acting in its sole and absolute discretion, the identity of the lessee/operator of the Grocery Store Component and Developer shall provide to the City an executed Grocery Store Lease in accordance with the terms of the Grocery Store Component Ground Lease.
4. Section 205.3(i) - Retail Component. Provided that Developer shall commence vertical construction of the Retail Component pursuant to a schedule to be agreed upon by the City and Developer following City’s completion of Landlord’s Work and receipt of Remediation Approval.
5. Section 205.3(j) - Loan Pham Lease Amendment and Recognition Agreement. Provided that the City shall cooperate with the Developer to obtain (i) an amendment to the Loan Pham Lease which shall provide, among other things, that the landlord under the Loan Pham Lease shall execute a Recognition Agreement at the request of the tenant under the
Sergio Ramirez
December 9, 2022
4889-3664-9027v2/022363-0028
Loan Pham Lease, and (ii) the landlord under the Loan Pham Lease shall execute a Recognition Agreement with the subtenant of the Loan Pham Property substantially in the form attached hereto as Attachment No. 10 of the DDA.
6. Section 205.3(k) - Transfer of Loan Pham Lease.
7. Section 205.3(l) – Environmental Condition. Provided that the City shall satisfy all conditions set forth in Section 205.3(l) following the Second Closing and the City shall perform Landlord’s Work and obtain Remediation Approval.
Please sign this letter where indicated below to confirm the City’s agreement to the terms and conditions of this letter agreement.
Sincerely,
Brett M. Foy
Co-President
Zelman Development Co.,
Authorized Agent for
39 Commons Partners, LLC
cc: Rob Mitchell (via email)
Leonie Mulvihill (via email)
Ryan Hodge (via email)
Thomas Clark (via email)
Robert Sykes (via email)
[Signature pages follow]
082161\16375019v1
Sergio Ramirez
December 9, 2022
4889-3664-9027v2/022363-0028
IN WITNESS WHEREOF , the undersigned have executed this letter agreement as of the date first above written.
“DEVELOPER”
39 COMMONS PARTNERS, LLC,
a Delaware limited liability company
By: Zelman Anaheim, LLC, a Delaware limited
liability company
Its: Managing Member
By: Zelman Development Co., a
California corporation
Its: Manager
By:
Brett Foy, Co-President
[Signatures continue on following page]
Sergio Ramirez
December 9, 2022
4889-3664-9027v2/022363-0028
“CITY”
CITY OF ANAHEIM , a California municipal
corporation and charter city
Dated: __________________, 20___ By:
Sergio M. Ramirez, Economic Development
Director
THERESA BASS, CITY CLERK
City Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Leonie Mulvihill
Assistant City Attorney
APPROVED AS TO FORM:
Stradling Yocca Carlson & Rauth
Special Counsel