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FIRST AMENDMENT TO A GREEMENT PURSUANT TO
GOVERNMENT CODE SECTION 66462.5 BETWEEN REPUBLIC
FAIRFIELD LLC AND CITY OF FAIRFIELD FOR ACQUISITION OF
CERTAIN REAL PROPERTY INTERESTS (AVIATRIX DEVELOPMENT
PUBLIC STREET INFRASTRUCTURE − STREET A AND PEABODY
ROAD)
This FIRST AMENDMENT TO AGREEMENT PURSUANT TO GOVERNMENT CODE SECTION 66462.5 BETWEEN REPUBLIC FAIRFIELD LLC AND CITY OF
FAIRFIELD FOR ACQUISITION OF CERTAIN REAL PROPERTY INTERESTS (AVIATRIX DEVELOPMENT PUBLIC STREET INFRASTRUCTURE − STREET A AND PE ABODY ROAD) (First Amendment) is entered into between REPUBLIC FAIRFIELD LLC (referred to herein as Developer), on the one hand, and the CITY OF FAIRFIELD, a municipal corporation (referred to herein as City), on the other hand. This First Amendment is effective on the date it is fully executed (Effective Date). Developer and City are sometimes referred to below collectively as Parties. In consideration for the mutual covenants and conditions set forth herein, the Parties agree as follows:
1. RECITALS. Thi s First Amendment is made with respect to the following facts and for the purposes set forth below, which the Parties acknowledge are true and correct.
A.1. The City and Developer entered into that certain AGREEMENT PURSUANT TO GOVERNMENT CODE SECTION 66462.5 B ETWEEN REPUBLIC
FAIRFIELD LLC AND CITY OF FAIRFIELD FOR ACQUISITION OF CERTAIN REAL
PROPERTY INTERESTS (AVIATRIX DEVELOPMENT PUBLIC STREET
INFRASTRUCTURE − STREET A AND PEABODY ROAD) (Agreement) with an effective date of September 25, 2025 regarding the pr oposed acquisition of cer tain real property interests in connection with the construction of certain infrastructure and off-site improvements in connection with Developer’s development of the Modified De veloper Project (as defined in Recital C of the Agreement). Recital D.1 . and Recital D.2 . of the Agreement described in detail the applicable street, drainage, public utility and public infrastructure improvements relat ing to Peabody Road and Street A, which are defined in Recital D.3. of the Agreemen t and are referred to in the Agreement and below as the “Subject Off-site Improvements”.
B.1. Recital D.4 . of the Agreement described the fee areas and permanent easements needed to construct the Subject Off-site Improvements. The Agreement, however, did not include the description of the temporary construction easement needed to facilitate the construction of the Subject Off-site improvements. Accordingly, the City and Developer determined it is necessary to enter into this First Amendment to amend the Agre ement to incorporate in the Agreement information regarding the temporary construction easement needed to facilitate the construction of the Subject Off-site Improvements.
C.1. The Parties desire to enter into this First Amendment in accordance with the Agreement to incorporate the information regarding the temporary construction easement needed to facilitate the construction of the Subject Off-site Improvements, to replace the Exhibits attached to the Agreement that consisted of unsigned draft legal descripti ons and depictions of the real -2-
property interests needed for the Subject Off -site Improvements with the final executed legal descriptions and depictions, to add new Exhibits of the legal description and depiction of the temporary construction easement need ed to facilitate the construction of the Subject Off -site Improvements, and to update the numbering sequence to the Subsections to Section 7 of the Agreement.
D.1. The Parties h ereby agree to amend Recital D.4. of the Agreement to incorporate the information regarding the temporary construction easement needed to facilitate the construction of the Subject Off-site Improvements.
E.1. The Parties also agree to replace EXHIBIT A, EXHIBIT B, EXHIBIT A-1, EXHIBIT B -1, EXHIBIT A -2, EXHIBIT B -2, EXHIBIT A -3, and EXHIBIT B-3 to the Agreement, which consisted of unsigned legal descriptions and depictions, with the attached final executed legal descriptions and depictions set forth at EXHIBIT A, EXHIBIT B, EXHIBIT A-1, EXHIBIT B-1, EXHIBIT A-2, EXHIBIT B-2, EXHIBIT A-3 and EXHIBIT B-3 and to add a new EXHIBIT A-4 and EXHIBIT B-4 that describes and depicts the temporary construction easement described in the amended Recital D.4. below.
F.1. The Parties agree to amend Section 7 of the Agreement to correct the numbering sequence in the Subsections as shown below.
G.1. In consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree to amend the Agreement as set forth below.
2. AMENDMENT TO RECITAL D.4. OF THE AGREEMENT. Recital D.4. of the Agreement is hereby amended to read as follows:
4. The Dev eloper owns the real property identified as APN 0166-110-120 and attempted to purchase certain real property interests on portions of the real property identified as APN 0166-110-390 from “5055 Peabody, L .L.C.” for public use, namely Street A improvements , and attempted to purchase certain real property interests on portions of the real property identified as APN 0166-110-410 from James A. Ewing, Trustee of the Velma J. Ewing Trust dated November 10, 2010 for public use, namely for Street A improvements and Peabody Road improvements. Satisfaction of the requirements for the above -described public infrastructure improvements involves acquisition and use of real property that is owned by either James A . Ewing, Trustee of the Velma J. Ewing Trust dated November 10, 2010 or 5055 Peabody, L.L.C. the real property interests that are needed to satisfy the conditions of the Off -site Improvements set forth above in Recital D.1. and Recital D.2. (referred to below as “Off -site Property”). The Off -site Property consists of (i) an approximate 14,546 square foot permanent easement for public service and public utility purposes on APN 0166-110-390 more particularly described on EXHIBIT A and depicted on EXHIBIT B in connection with public street and related improvements required for Street A improvements ; (ii) an approximate -3-
33,270 square foot permanent easement on APN 0166-110-410 more particularly described on EXHIBIT A-1 and depicted on EXHIBIT B-1 in connection with the public street and related improvements required for the Street A improvements; (iii) an approximate 18,941 square foot area in fee from APN 0166-110-410 more particularly described on EXHIBIT A-2 and depicted on EXHIBIT B-2 for proposed public street and related improvements i n connection with Peabody Road; (iv) an approximate 29,989 square foot area in fee from APN 0166 -110-410 more particularly described on EXHIBIT A-3 and depicted on EXHIBIT B-3 for proposed public street and related improvements in connection with Peabody Road ; and (v) an approximate 14,780 square foot temporary construction easement with a term of thirty -six (36) months on APN 0166 -110-410 more particularly described on EXHIBIT A-4 and depicted on EXHIBIT B-4 to facilitate the construction of the public street and related improvements required for the Street A improvements and Peabody Road improvements.
EXHIBIT A, EXHIBIT B, EXHIBIT A-1, EXHIBIT B-1, EXHIBIT A-2, EXHIBIT B-2, EXHIBIT A-3, EXHIBIT B-3, EXHIBIT A-4 and EXHIBIT B-4 are attached hereto and incorporated herein by this reference. The Off- Site Property is required for public street purposes, including public access purposes, sidewalk, public utility, drainage, public service easement purposes, traffic signal purposes, and all uses necessary or convenient thereto. The City maintains the discretion to review and approve any conveyance documents that grant to the City the Off-site Property interests prior to recordation of such documents.
3. REPLACEMENT OF EXHIB ITS TO AGREEMENT AND ADDITION OF NEW EXHIBITS TO AGREEMENT. EXHIBIT A, EXHIBIT B, EXHIBIT A-1, EXHIBIT B- 1, EXHIBIT A-2, EXHIBIT B-2, EXHIBIT A -3, and EXHIBIT B-3 to the Agreement, which consisted of unsigned legal descriptions and depictions of the Off-site Property are replaced with the attached final executed legal descriptions set forth at EXHIBIT A, EXHIBIT B, EXHIBIT A- 1, EXHIBIT B-1, EXHIBIT A-2, EXHIBIT B-2, EXHIBIT A-3 and EXHIBIT B-3 and a new EXHIBIT A-4 and EXHIBIT B-4, which are all attached hereto and incorporated herein by this reference.
4. AMENDMENT TO SECTION 7. ( MISCELLANEOUS) TO UPDATE
NUMBER SEQUENCING OF SUBSECTIONS. Section 7. (Miscellaneous) of the Agreement is amended as follows:
7. Miscellaneous.
a. Notices. All notices and demands will be given in writing by certified or registered mail, postage prepaid, and return receipt requested, or by overnight carrier. Notices will be considered given upon the earlier of (a) two (2) business days following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, or (b) one (1) business day following deposit with an overnight carrier service. The -4-
Parties will address such notices as provided below or as may be amended by written notice:
City: CITY OF FAIRFIELD
Attention: City Manager
1000 Webster Street
Fairfield, California 94533
Copy to: RICHARDS, WATSON & GERSHON
44 Montgomery Street #3800
San Francisco, California 94104
Attention: David Lim, City Attorney
E-mail: [email protected]
Developer: REPUBLIC FAIRFIELD LLC
c/o Republic Urban Properties LLC
1098 Lincoln Avenue, Suite 200
San Jose, California 95125
Attention: Michael R. Van Every
Email: [email protected]
Copy to: GLAZER | HONIGMAN | ELLICK
5301 Wisconsin Avenue, NW, Suite 740
Washington, DC 20015
Attention: Jocelyn B. Redman
E-mail: [email protected]
b. Further Cooperation. Each party to this Agreement
agrees to cooperate by performing any further acts and by executing and delivering any and all additional monies, items, or documents which may be reasonably necessary to carry out the terms and provisions of this Agreement, and each party to this Agreement agrees that it will n ot act in any manner whatsoever which would hinder, impede, interfere, or prohibit, or make more onerous or difficult the performance of the other party hereto under this Agreement.
c. Amendments. Any amendments to this Agreement
will be effective only by a writing executed by the Parties to this Agreement.
d. Governing Law. This Agreement is deemed to have
been prepared by each of the Parties hereto, and any uncertainty or ambiguity herein will not be interpreted against the drafter, but rather, if such uncert ainty or ambiguity exists, will be interpreted according to the applicable rules of interpretation of contracts under -5-
the laws of the State of California, and not the substantive law of another state or the United States or federal common law. This Agreement will be deemed to have been executed and delivered within the State of California, and the rights and obligations of the Parties will be governed by, and construed and enforced in accordance with, the laws of the State of California.
e. Entire Agreement . This Agreement contains the
entire agreement between the City and Developer regarding the subject matter of this Agreement.
f. Successors and Assigns . This Agreement will be
binding upon and inure to the benefit of the heirs, executors, administrators, successors, successors-in-interest, and assigns of the Parties hereto.
g. Counterparts, Facsimile and Electronic Signatures .
This Agreement may be executed in whole or in counterparts, which together will constitute the entire Agreement. Facsimile or electronic signatures/counterparts to this Agreement will be effective as if the original signed counterpart were delivered. h. Legal Representation . Each of the Parties
acknowledge that in connection with the negotiation and execution of this Agreement, they have each been represented by independent counsel of their own choosing and the Parties executed this Agreement after review by such independent counsel. The Parties further acknowledge that, prior to executing this Agreement, each of the Parties has had an a dequate opportunity to conduct an independent investigation of all the facts and circumstances with respect to the matters that are the subject of said Agreement. i. Attorneys’ Fees. If either of the Parties hereto incurs attorneys’ fees in order to enforce, defend, or interpret any of the terms, provisions, or conditions of this Agreement or because of a breach of this Agreement by the other party, the prevailing party, whether by suit, negotiation, arbitration, or settlement will be entitled to recover reasonable attorneys’ fees from the other party. j. Severability. If any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining provisions will not be affected, and the rights and obligations of the Parties will be construed and enforced as if this Agreement did not contain the particular part, term, or provision held to be invalid. -6-
k. No Agency or Joint Venture . The terms and
provisions of this Agreement will not cause the Parties hereto or any of each Parties’ agents, consultants, contractors, or other providers of professional services to be construed in any manner whatsoever as partners, joint venturers, or agents of each other in the performance of their re spective duties and obligations under this Agreement, or subject either party to this Agreement to any obligation, loss, charge, or expense of the other party to this Agreement.
l. Time of Essence . Time is expressly made of the
essence of each and every provision of this Agreement.
m. Remedies. No remedy or election hereunder will be
deemed to be exclusive but will, wherever possible, be cumulative with all other remedies at or in equity.
n. Venue. Venue for any action arising directly or
indirectly under this Ag reement will be in the Superior Court of Sonoma County, California.
5. NO OTHER MODIFICATIONS. Except as amended by this First Amendment, the terms and provisions of the Agreement shall remain unmodified and continue in full force and effect. Any references to “Agreement” in the Agreement or any document delivered in connection therewith shall be deemed to mean the Agreement as amended by this First Amendment. [SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the Parties hereof have executed and entered into t his Agreement as of the date set forth below.
Developer
REPUBLIC FAIRFIELD LLC,
a Delaware limited liability company
Date:
By:
Michael R. Van Every
Manager
DEVELOPER’S SIGNATURES MUST BE
NOTARIZED
City
CITY OF FAIRFIELD, a municipal
corporation
Date:
By:____________________________
Catherine Moy, Mayor
Attest:
Karen L. Rees, City Clerk
Approved as to form:
David Lim, City Attorney
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A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared Michael R. Van Every, Manager of Republic Fairfield LLC, a Delaware limited liability company, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) 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.
Signature (Seal)