RESOLUTION NO. SA 2022-XX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FULLERTON,
CALIFORNIA, APPROVING THE FORM OF A DISPOSITION AND
DEVELOPMENT AGREEMENT (FOX BLOCK COMMERCIAL & RETAIL
PROJECT) FOR APPROXIMATELY 0.49 ACRES AND PORTION OF
ADJACENT PARCELS LOCATED AT THE NORTHEAST CORNER OF
ELLIS PLACE AND HARBOR BOULEVARD (APNs 029 -032-21, 029-033- 24, 029-033-38) AND APPROXIMATELY 0.64 ACRES LOCATED AT THE
NORTHWEST CORNER OF CHAPMAN AVENUE AND POMONA
AVENUE (APNs 029-033-03, 029-033-04, 029-033-05, 029-033-06)
RECITALS
WHEREAS, Fox Harbor LLC, affiliate of NFRED LLC, is under contract to acquire and has an equitable interest to purchase approximately 0.33 acres improved with “Angelo’s & Vinci’s Ristorante” building located at 550 Harbor Boulevard (APN 029-033- 25). Angelo’s and Vinci’s building is adjacent to several other parcels owned by the City, either by separate acquisition or in its capacity as the Successor Agency to the former Fullerton Redevelopment Agency (Successor Agency); and
WHEREAS, the City of Fullerton (City) owns real property totaling approximately
0.49 acres located at the northeast corner of Ellis Place and Harbor Boulevard (APN 029- 032-21) and commonly referred to as the “Triangle Parcel” north of Ellis Place that is currently a parking lot. The City also owns the local street Ellis Place that runs between the Triangle Lot and Angelo’s and Vinci’s building, which is subject to a separate street vacation process in accordance with State and City law but related to the proposed project (portions of APNs
029-033-24 and 029-033-38); and
WHEREAS, the City in its capacity as the Successor Agency owns real property totaling approximately 0.64 acres located at the northwest corner of Chapman Avenue and Pomona Avenue (consisting of four APNs: 029-033-03, 029-033-04, 029-033-05, and 029-033-06) and also currently a parking lot; and
WHEREAS, the properties owned by the City and Successor Agency are subject to an Exclusive Negotiation Agreement by and between the City and NFRED LLC, affiliate of Fox Harbor LLC , dated May 21, 2020, as amended (ENA) . Among other terms and conditions, the ENA set forth parameters for good faith negotiations on the scope of a project, environmental review, and ultimate agreement , such as a disposition and development agreement, that may result from the conclusion of such negotiations; and
WHEREAS, as a result of the negotiation under the ENA among the City, Successor Agency, and NFRED LLC/Fox Harbor LLC (the Developer ), a project for the development and use of the properties has been produced, which consists of various components to create a food destination consisting of 14 restaurants, a microbrewery , landscaped outdoor common dining area, live entertainment, and a lounge. In general, (Continued)
Res. No. CC-2022-XXXX
2 the project involves the construction of a new 6,830 square f oot building on the Triangle Parcel as a new single-story structure arranged in a “V” shape, with a mezzanine level , and proposed to be used by a microbrewery business and seven food vendors . T he project also involves a renovation of Angelo’s and Vinci’s Ristorante property to accommodate new restaurant uses on the ground level (both with shared indoor dining area and outdoor patio space) and a lounge with a full liquor bar on the second level within the existing building. Parking for the newly proposed building and proposed uses would be located on the four Successor Agency -owned parcels with an existing parking lot located at the northwest corner of Pomona Avenue and East Chapman Avenue; and
WHEREAS, the properties and proposed project is located in the City’s C-3 Central Business District Commercial Zone , and, pursuant to Fullerton Municipal Code Section
15.30.020(C), the intent and purpose of development and use in this zone is “to provide for a highly concentrated business district that includes mixed residential and commercial use, primarily for the downtown area”; and
WHEREAS, the sale of the City and Successor Agency properties to Developer, and Developer’s purchase and development of said properties, for the proposed project, have been negotiated and memorialized in a Disposition and Development Agreement (DDA) by and among the City, Successor Agency, and Developer, on the terms and conditions more specifically set forth in the DDA, in the form attached to the Staff Report accompanying this Resolution; and
WHEREAS, the disposition of the properties owned by the City and Successor Agency comply with the Surplus Land Act, Government Code section 54220 et seq. (SLA). On May 19, 2021, the City issued a notice of availability for the potential negotiation and purchase of the City-owned Triangle Parcel prior to declaring this property as “Surplus Land” in accordance with Section 54222 and the process set forth in the SLA.
The City received no responses of any interest in negotiating or the potential purchasing or leasing the Triangle Parcel by July 18, 2021, or within 60 days after the City’s notice of availability being sent pursuant to the Surplus Land Act, as recorded by the California Department of Housing and Community Development at the Internet web link:
https://www.hcd.ca.gov/community-development/public-lands-for-affordable-housing- development.shtml. Furthermore, the four parcels that constitute the for mer Fullerton Redevelopment Agency property, and serve as the parking lot on the corner of Pomona Avenue and Chapman Avenue, are subject to the ENA. As such, the prior land use disposition provisions under the SLA, in effect prior to the enactment of Assembly Bill 1486 (Stats. 2019, Ch. 664), apply to these former RDA parcels, and have been complied with under the prior SLA; and
WHEREAS, as part of the environmental review, the City as l ead agency has determined that the project qualifies for a categori cal exemption, Class 32 , “In-Fill Development Projects ,” pursuant to the California Environmental Quality Act, Public Resources Code Section 21000 et seq. (CEQA) and the implementing guidelines in Title 14, Section 15000 et seq., of the California Code of Regulations (CEQA Guidelines). (Continued)
Res. No. CC-2022-XXXX
3 Pursuant to CEQA Guidelines, Section 15332 (Class 32), a project is exempt from CEQA review when: (a) the project is consistent w ith the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations, (b) the proposed development occurs within city limits on a project site of no more than five acres substant ially surrounded by urban uses , (c) the project site has no value, as habitat for endangered, rare or threatened species, (d) approval of the project would not result in any significant effects relating to traffic, noise, air quality, or water quality, and (e) the site can be adequately served by all required utilities and public services. Applying the criteria for Class 32 categorical exemption: (a) the project is consistent with the applicable provisions in the Fullerton General Plan and C -3 Commercial Z one based project’s development and intended uses for the properties, which include concentrated commercial restaurant and related uses in the downtown area as contemplated in Fullerton Municipal Code Section 15.30.020(C), (b) the project is less than five acres and is surrounded completely by urban uses in the downtown area of the City, such as commercial restaurant, retail, and parking uses , (c) there is no value as habitat for endangered, rare, or threatened species, as the properties covering the project and subject to the DDA are currently used as parking lots and throughways for vehicular and pedestrian commercial uses, (d) the City hired Harris and Associates to prepare an analysis to ensure there would be no impacts from the project associated with Noise, Air Quality, Traffic, or Water Quality in accordance with the Class 32 criteria, and this analysis yielded no impacts in these areas , and (e) the project can be adequately served by all required utilities and public services, as the project and properties subject to the DDA are located in the downtown commercial center for uses that are consistent with the utilities and public services currently available in the area. Therefore, the project is categorically exempt from CEQA review pursuant to CEQA Guidelines Section 15332 (Class 32) as an “In-Fill Development Project”; and
WHEREAS, the City Council has considered the information contained in Staff Report and attachment materials, dated November 15, 2022.
RESOLUTION
NOW, THEREFORE, BE IT FOUND, DETERMINED AND RESOLVED by the City Council of the City of Fullerton, as follows:
1. In all respects, as set forth above, the Recitals of this Resolution constitute the findings of the City Council.
2. The City Council finds that the proposed project and the development and uses of the properties for the proposed project are consistent with the purpose and intent of the C-3 Commercial Zone in Fullerton Municipal Code Section 15.30.020(C).
3. The City Council approves the Disposition and Development Agreement, substantially in the form attached to the Staff Report accompanying this Resolution (DDA).
(Continued)
Res. No. CC-2022-XXXX
4 4. The City Manager is authorized on behalf of the City to execute the DDA.
5. The City Manager (or authorized designee) shall have the authority to execute any additional implementing agreements or documents (including recorded instruments) to perform the City’s obligations under the DDA and other applicable permits and entitlements.
ADOPTED BY THE FULLERTON CITY COUNCIL ON NOVEMBER 15, 2022.
Fred Jung, Mayor
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
between
THE CITY OF FULLERTON
a California municipal corporation
and
THE CITY OF FULLERTON IN ITS CAPACITY AS THE
SUCCESSOR AGENCY TO THE FULLERTON REDEVELOPMENT AGENCY, a public body, corporate and politic
and
NFRED LLC,
a California limited liability company
698/036753-0126
17796404.12 a11/10/22 -1-
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
This DISPOSITION AND DEVELOPMENT AGREEMENT (Fox Block Commercial & Retail Project) (“Agreement”) is dated as of _________________, 2022 (“Date of Agreement”), for reference purposes only, and is entered into by and between the City of Fullerton, a California municipal corporation (“City”), the City of Fullerton in its c apacity as the Successor Agency to the Fullerton Redevelopment Agency, a public body, corpor ate and politic ( “Agency”), and NFRED LLC, a California limited liability company (“Developer”). City, Agency, and Developer are sometimes referred to in this Agreement, each individually, as a “ Party,” or collectively, as the “Parties.”
RECITALS
This Agreement is entered into with reference to the following recitals ( “Recitals”) that are integrated into this Agreement and a substantive part herein:
A. Developer’s Affiliate, FOX HARBOR LLC, a California limited liability company (“Fox Harbor LLC”), is under contract to acquire and has an equitable interest in that certain real property totaling approximately 0.33 acres, with improvements to the realty for commercial use (currently known as “Angelo & Vinci’s Restaurant”), and loca ted at 550 Harbor Boulevard, Fullerton, CA (APN 029-033-25), more specifically described in Exhibit A-1 attached hereto and incorporated herein by this reference (referred to herein as the “Developer Property”).
B. T he City is the owner of that certain real property totaling approximately 0.49 acre s and located at the northeast corner of Ellis Place and Harbor Boulevard in the City of Fullerton, CA (APN 029-032-21), more specifically described in Exhibit A-2 attached hereto and incorporated herein by this reference (referred to herein as the “Triangle Lot/City Property”).
C. The Agency is the owner of that certain real property totaling approximately 0.64 acres and located at the northwest corner of Chapman Avenue and Pomona Avenue (consisting of four APNs: 029-033-03, 029-033-04, 029-033-05, and 029-033-06), more specifically described in Exhibit A-3 attached hereto and incorporated herein by this reference (referred to herein as the “Pomona Avenue/Agency Property”).
D. The Triangle Lot/City Property and Pomona Avenue/Agency Property are subject to and governed by that certain Exclusive Negotiation Agreement by and between City and NFRED LLC, a California limited liability company and an Affiliate of Developer, dated May 21, 2020, as amended (the “ENA”).
E. The City is the owner of the local street Ellis Place that runs between the Triangle Lot/City Property and the Developer Property. The City has commenced process ing a street vacation application for the portion of Ellis Place described in Exhibit A-4 (the “Vacated Portion of Ellis Place”), which processing of the application may be complete prior to or after Closing (as defined below). The effective date of the street vacation for the Vacated Portion of Ellis Place (the “Ellis Place Vacation”) shall be upon the completion of the City’s processing and City Council
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approval of said vacation application in accordance with applicable law and the recordation thereof in the Official Records, which may occur prior to or after the Closing (as defined below).
F. Developer desires to purchase (i) the Triangle Lot/ City Property and Pomona Avenue/Agency Property (collectively, the “City/Agency Properties”), (ii) the Vacated Portion of Ellis Place upon the Ellis Place Vacation, and (iii) the “Developer Easements” (as defined below), at Closing (as defined below) provided that if the City is not in a position to transfer the Vacated Portion of Ellis Place and/or the Developer Easements by Closing, then such interests may be transferred after Closing of the City/Agency properties pursuant to a Post -Closing Agreement (as defined below), and to develop the City/Agency Properties, the Vacated Portion of Ellis Place and the Developer Easements along with the Developer Property for commercial and retail projects, with a parking area for use, on a fee basis at Owner’s discretion, for short and long term parking available to the public, and shall not restrict the use of any such spaces to or for the benefit of the owners of any other real property, as set forth in the Agreement, consisting generally of the following:
(1) A commercial project developing the Developer Property and Triangle Lot/City Property with the Vacated Portion of Ellis Place as a single cohesive development, including but not limited to the redevelopment of the Developer Property, the development of the Triangle Lot/City Property with an approximately 23,250 square foot, two-story commercial building spanning both the Developer Property and Triangle Lot/City Property and an outdoor patio on the Vacated Portion of Ellis Place for customer use and connectivity between the Developer Property and Triangle Lot/City Property and incorporating the “ Developer Easement Areas ” as defined below (referred to herein as the “Commercial Component Project”); and
(2) The continued use of the Pomona Avenue/Agency Property as a parking area for use, on a fee basis at Owner’s discretion, for short and long term parking available to the public (the “Parking Area Component Project”), which use is the current use as of the Effective Date of this Agreement. The Commercial Component Project and Parking Area Component Project are collectively referred to herein as the “Project.” (3) Developer may at some future time propose development and construction of an office and/or other use project on the Pomona Avenue/Agency Property (referred to herein as the “Future Office Component Project”). Developer hereby acknowledges and agrees that (a) the Future Office Component Project is not part of the Project as defined under this Agreement, (b) nothing in this Agreement is intended to confer City approval of any such use or development, and (c) if Developer elects to proceed with such Future Office Component Project, then such Future Office Component Project will be subject to all then applicable laws, rules and regulations of the City relating to land use and zoning, including parking.
G. On May 19, 2021, the City issued a notice of availability for the potential negotiation and purchase of the Triangle Lot/City Property prior to declaring this property as “Surplus Land” in accordance with Section 54222 and the process set forth in Government Code section 54220 et seq. (the “Surplus Land Act”). The City received no responses of any interest in negotiating or the potential purchasing or leasing the Triangle Lot/City Property by July 18,
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2021, or within 60 days after the City’s notice of availability being sent pursuant to the Surplus Land Act, as recorded by the California Department of Housing and Community Development at the Internet web link: https://www.hcd.ca.gov/community-development/public-lands- for- affordable-housing-development.shtml. Furthermore, the Pomona Avenue/Agency Property is subject to the ENA as former RDA real property, with the ENA timely executed , such that the prior land use disposition provisions under the Surplus Land Act, in effect prior to the enactment of Assembly Bill 1486 (Stats. 2019, Ch. 664), apply to the Pomona Avenue/Agency Property.
Therefore, disposition and development of the City/Agency Properties would be in compliance with the Surplus Land Act.
H. To complete the acquisition of the City/Agency Properties, the Vacated Portion of Ellis Place and the Developer Easements and the development of the Project, as contemplated under this Agreement, Developer shall, on the Effective Date and immediately following execution and delivery of this Agreement by City, Agency and Developer, assign to Fox Harbor LLC, and Fox Harbor LLC shall assume from Developer, all of Developer’s rights and obligations under this Agreement, pursuant to an assignment and assumption agreement the form of which has been approved by the City Agency, and which assignment has been approved by City and Agency, and following such assignment and assumption ( i) Fox Harbor LLC wi ll be Developer hereunder for all purposes and (ii) NFRED LLC, the originally named “Developer” hereunder will be released from all further liabilities and obligations under this Agreement.
I. Developer’s proposed acquisition of the City/Agency Properties and subsequent development of the Project (as defined in these Recitals and elsewhere in this Agreement ) in accordance with the terms of this herein are in the best interest of the City, Agency, and the health, safety and welfare of the City’s and Agency’s taxpayers and residents, and are in accordance with the public purposes set forth in applicable law.
NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the City, Agency, and Developer, the Parties agree as follows:
TERMS AND CONDITIONS
ARTICLE I
DEFINITIONS; REPRESENTATIONS AND WARRANTIES;
EFFECTIVE DATE
1.1 Definitions. All initially capitalized terms not otherwise defined in this Agreement have the following meanings:
1.1.1 “Additional Insureds” has the meaning ascribed to such term in Section 5.10.
1.1.2 “Agency” has the meaning ascribed in the Preamble of this Agreement.
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1.1.3 “Agency Deposit ” means the amount of three
percent (3%) of the Agency Purchase Price.
1.1.4 “Agency Property ” has the meaning ascribed in
the Recitals of this Agreement.
1.1.5 “Agency Purchase Price” means the amount of
______________________ Dollars ($ __________.00) in cash or immediately available funds, which amount was established by the Cit y with reference to that certain appraisal dated ____________, 2022, and determined to be the market value of the Pomona Parcel/Agency Property by the governing board of the Agency concurrently with its approval of this Agreement.
1.1.6 “Affiliate” means and refers to any person or entity, directly or indirectly, Controlling or Controlled by or under common Control with Developer, whether by direct or indirect ownership of equity interests, by contract or otherwise.
1.1.7 “CC&Rs” means that certain Declaration of
Covenants, Conditions and Restrictions and Reservation of Easements for the Fox Theatre dated January 18, 2011 and recorded in the Official Records as Instrument No. 2011000052374 on January 28, 2011.
1.1.8 “CC&Rs Amendment” means a recorded
amendment to the CC&Rs in the form attached hereto as Exhibit H or such other form as is required by the Title Company and reasonably acceptable to Developer and City, executed by the fee owners of all of the Condominium Units including Fox Theatre Foundation.
1.1.9 “CE QA” means the California Environmental
Quality Act, Public Resources Code Sections 21000, et seq.
1.1.10 “Certificate of Completion ” means the written
certification of City that the construction of the Project has been completed in compliance with the terms and conditions of this Agreement, substantially in the form of Exhibit F attached to this Agreement , which may be requested and issued separately at different times for the Commercial Component Project and the Parking Area Component Project. The issuance of a Certificate of Completion has no effect on Developer’s ability to receive a Certificate of Occupancy and rent units in the Project.
1.1.11 “City” has the meaning ascribed in the Preamble of this Agreement.
1.1.12 “City/Agency P roperties” has the meaning
ascribed in the Recitals to this Agreement.
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1.1.13 “City Deposit” means the amount of three percent (3 %) of the City Purchase Price.
1.1.14 “City Manager ” means the City Manager of the
City or his or her designee or successor in function.
1.1.15 “City Properties Appraisal” that certain appraisal dated ______________, 2022 by ______________________.
1.1.16 “City Purchase Price ” means the amount of
______________________ Dollars ($__________.00) in cash or immediately available funds, which amount was establi shed by the City with reference to City Properties Appraisal and determined to be the market value of the Triangle Lot/City Property, the Vacated Portion of Ellis Place, and Developer Easements by the City Council of the City concurrently with its approval of this Agreement.
1.1.17 “City Requirements” has the meaning ascribed to
the term in Section 2.6.1.
1.1.18 “Close of Escrow ” or “Closing” means: (a) the
recording in the Official Records of the Grant Deed for the Triangle Lot/ City Property, the recording in the Official Records of the Grant Deed for the Pomona Avenue/Agency Property, and completion of each of the actions set forth in ARTICLE III by the Escrow Holder for the City to sell the Triangle Lot/City Property and the Agency to sell the Pomona Avenue/Age ncy Property; (b) if the Ellis Place Vacation has been completed or is in a position to be recorded in the Official Records on such date, the recording in the Official Records of the Grant Deed for the Vacated Portion of Ellis Place; (c) if City has obtained consents for the grant of the Developer Easements and use of the Developer Easement Areas (including the approval of the “Design Review Entity” pursuant to Section 7.2 of the CC&Rs), as evidenced by the execution by all parties to the CC&Rs Amendment including the Fullerton Theatre Foundation, the recording in the Official Records of the CC&Rs Amendment ; and (d) with respect to each such interest, Developer ’s purchase and payment to (i) the Agency of the Agency Purchase Price, and (ii) Developer’s purchase and payment to the City of the City Purchase Price for the applicable consideration of the Triangle Lot/City Property, Vacated Portion of Ellis Place, and Developer Easements, subject to the hold back provisions for the Vacated Portion of Ellis Place Purchase Price and Developer Easements Purchase Price, as applicable, as set forth herein.
1.1.19 “Completion of Construction” means the issuance
of a final Certificate of Completion for the Project, based on the plans submitted by Developer to the City, which may be requested and issued separately at different times for the Commercial Component Project.
1.1.20 “Control” means and refers to possession, directly or indirectly, of the power to direct or cause the dire ction of the management and
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policies of a person or entity, whether by ownership of equity interests, by contract, or otherwise.
1.1.21 “Controlling” and “Controlled” mean and refer to exercising or having Control.
1.1.22 “County” means the County of Orange, California.
1.1.23 “Developer Easement Areas ” means those
portions of Ellis Place, Unit 4, Unit 5 and certain Common Area as shown and defined in the Condominium Plan recorded January 27, 2011, as Instrument No. 2011000050999 of Official Records, affecting that portion of Parcel 1 of Parcel Map No. 2009-138, in the City of Fullerton, County of Orange, State of California, per the map filed in Book 370, Pages 44 through 47 inclusive of Parcel Maps upon which the Developer Easements shall be located, which in some instances ma y at the election of the City and Developer be included as a part of the Developer Property by way of a lot line adjustment.
1.1.24 “Developer Easements” mean those certain
easements in perpetuity from the City in favor of Developer and Developer’s successors and assigns through, over, under, across and above the Developer Easement Areas for building areas, utilities, encroachments, ingress, egress, circulation, construction, support, maintenance, landscaping, irrigation, repair, replacement and beneficial use and enjoyment of those elements of the Commercial Component Project that are to be situated upon the Developer Easement Areas as shown on the site plan included with the application for the Entitlements, as the same may be amended, and as shall be more particularly described in Developer Easements Grant, including, without limitation, a cul-de-sac on Ellis Place, trash enclosures, any necessary utilities (including but not limited to transformer s, water meters, gas meters, stormwater treatment or retention), area for loading and unloading, a covered balcony run/walkway with footings and columns and a staircase, some of which may be implemented by way of lot line adjustments.
1.1.25 “Developer Easement s Grant” means a grant of
easements, in form to be agreed on by the Parties prior to expiration of the Due Diligence Period, granting to Developer the Developer Easements.
1.1.26 “Developer Easements Post-Closing Agreement”
means a Post -Closing Agreement to be entered into in the event that , prior to the initial Closing, City has not obtained consents for the grant of the Developer Easements and use of the Developer Easement Areas (including the approval of the “Design Review Entity” pursuant to Section 7.2 of the CC&Rs) as evidenced by the execution by all parties to the CC&Rs Amendment, including the Fullerton Theatre Foundation, providing for: (a) memorialization of City’s contractual obligation to use best and good faith efforts to obtain consents for the grant of the Developer Easements and use of the Developer Easement Areas (including the approval of the “Design Review Entity” pursuant to Section 7.2 of the CC&Rs), as evidenced by the
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execution by all parties to the CC&Rs Amendment, includi ng the Fullerton Theatre Foundation, and once obtained, to execute and record the CC&Rs Amendment and Developer Easements Grant in exchange for the Developer Easements Purchase Price; (b) the Developer Easements Purchase Price shall not be paid to City at Closing, but shall be held back in Escrow and paid to City concurrently with the City’s execution, delivery to Developer and recordation in the Official Records of the CC&Rs Amendment and Developer Easements Gran t; (c) concurrently with the Closing of its purchase of the Developer Easements, Developer shall be entitled to receive a Title Policy with coverage in the amount of the Developer Easements Purchase Price, subject only to applicable Permitted Exceptions (and City shall be subject to all covenants and obligations relating to the delivery of such title policy as it is with respect to the Title Policy delivered to Closing); (d) if the City is unable to obtain the consent to and execution by all parties of CC&Rs Amendment by the one hundred eightieth day (180th) day following the Closing, then Developer and City each shall have the right, by written notice to the other Party and to the Escrow Holder, to terminate Developer’s obligation to purchase and the City’s obligation to convey the Developer Easements under this Agreement, and the portion of the City Purchase Price equal to the Developer Easements Purchase Price shall be returned by Escrow Holder to Developer (and Developer and City shall deliver any instruction as reasonably required by Escrow Holder to effectuate the foregoing); and (e) if either Developer or City exercises the partial termination right described in subdivision (d) of this Section, Developer shall have the right to alter the design of the Commercial Component Project to accommodate the uses and features that had originally been planned for the Developer Easement Areas such that the Developer Easements will no longer be required for the Project.
1.1.27 “Developer Easements Purchase Price” , means
the portion of the City Purchase Price allocable to the Developer Easements , as set forth in the City Properties Appraisal.
1.1.28 “Developer Property” has the meaning ascribed in the Recitals of this Agreement.
1.1.29 “Developer’s Title Notice” means a written notice from Developer to the City or the Agency, as applicable, indicating Developer ’s acceptance of the state of the title to the Triangle Lot/ City Property or Pomona Avenue/Agency Property, respectively, as described in the Preliminary Report, or Developer’s objection to specific matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy for the Triangle Lot/City Property or Pomona Avenue/ Agency Property, respectively, describing in suitable detail the actions that Developer reasonably believes are indicated to cure or correct each of Developer’s objections.
1.1.30 “Developer’s Title Notice Waiver ” means a
written notice from Developer to the City or to the Agency waiving Developer ’s previous objection in Developer ’s Title Notice to specific matters shown in
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Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy for the City/Agency Properties.
1.1.31 “Due Diligence Investi gations” means
Developer’s due diligence investigations of the City/Agency Properties to determine the suitability of the City/Agency Properties for development and operation of the Project, including, without limitation, investigations of the environmenta l and geotechnical suitability of the City/Agency Properties, as deemed appropriate in the reasonable discretion of Developer, all at the sole cost and expense of Developer , which for the avoidance of doubt may continue to be conducted following the delivery of the Due Diligence Investigation Conclusion Notice.
1.1.32 “Due Diligence Investigation Conclusion Notice”
means a written notice of Developer delivered to the City, Agency, and the Escrow Holder, prior to the end of the Due Diligence Period, indicating Deve loper’s acceptance of the condition of the City/Agency Properties or indicating Developer’s rejection of the condition of the City/Agency Properties and refusal to accept a conveyance of fee title to the City/Agency Properties, describing in reasonable detail the actions that Developer reasonably believes are indicated to allow Developer to accept the condition of the City/Agency Properties and describing in reasonable detail the specific environmental or existing condition(s) that serve as the grounds for rejecting the condition of the City/Agency Properties.
1.1.33 “Due Diligence Period ” means the date
commencing on the Effective Date and ending at 5:00 p.m. on the later of either of the following: The thirtieth (30
th) day following the Effective Date, or such later date as mutually agreed upon in writing by the Parties.
1.1.34 “Earnest Money Deposit” means, collectively, the City Deposit and Agency Deposit.
1.1.35 “Effective Date” the meaning ascribed to the term in Section 1.3.
1.1.36 “Ellis Place Vacation” has the meaning ascribed in the Recitals of this Agreement.
1.1.37 “ENA” has the meaning ascribed in the Recitals of this Agreement.
1.1.38 “Entitlements” means all governmental approvals
necessary for the construction and use of the Project , including all conditions of approval thereto and limitations thereon imposed by the applicable Governmental Agency, including, without limitation, site plan approval, zone changes, general plan amendments, conditional use permits, standards variances and CEQA approval.
1.1.39 “Environmental Claims” has the meaning ascribed
to the term in Section 5.9.
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1.1.40 “Environmental Laws ” means all federal, state,
local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability or standards of conduct concerning any hazardous substance (as later defined), or pertaining to occupational health or industrial hygiene and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Ci ty/Agency Properties, occupational or environmental conditions on, under, or about the City/Agency Properties, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ( “CERCLA”) (42 USC Section 9601 et seq.); the Resource Conservation and Recovery Act of 1976 ( “RCRA”) (42 USC Section 6901 et seq.); the Clean Water Act, also known as the Federal Water Pollution Control Act (“FWPCA”) (33 USC Section 1251 et seq.); the Toxic Substances Control Act (“TSCA”) (15 USC Section 2601 et seq.); the Hazardous Materials Transportation Act ( “HMTA”) (49 USC Section 1801 et seq.); the Insecticide, Fungicide, Rodenticide Act (7 USC Section 6901 et seq.) the Clean Air Act (42 USC Section 7401 et seq.); the Safe Drinking Water Act (42 USC Section 300f et seq.); the Solid Waste Disposal Act (42 USC Section 6901 et seq.); the Surface Mining Control and Reclamation Act (30 USC Section 101 et seq.) the Emergency Planning and Community Right to Know Act (42 USC Section 11001 et seq.); the Occupational Safety and Health Act (29 USC Section 655 and 657); the California Underground Storage of Hazardous Substances Act (California Health & Safety Code Section 25288 et seq.); the California Hazardous Substances Account Act (California Health & Safety Code Section 25300 et seq.); the California Safe Drinking Water and Toxic Enforcement Act (California Health & Safety Code Section 24249.5 et seq.) the Porter -Cologne Water Quality Act (California Water Code Section 13000 et seq.) together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the City/Agency Properties, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use.
1.1.41 “Environmental Matters ” has the meaning
ascribed to the term in Section 5.9.
1.1.42 “Escrow” has the meaning ascribed to the term in Section 2.1.
1.1.43 “Escrow Closing Date” has the meaning ascribed
to the term in Section 3.7.
1.1.44 “Escrow Holder” means Ticor Title Company,
Attention: Commercial Escrow Officer Dawn Niehaus, 1500 Quail Street, 3rd Floor,
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Newport Beach, CA 92660 Direct (714) 289- 3349; e -fax (949) 258-53 95; email [email protected], or other person and/or entity duly licensed in the State of California to serve as an escrow officer as may be mutually agreed upon by the Parties.
1.1.45 “Escrow Opening Date” has the meaning ascribed
to the term in Section 3.1.
1.1.46 “Executive Director” means the City Manager or
his or her designee or successor in function.
1.1.47 “Event of Default” has the meaning ascribed to the term in Section 7.1.
1.1.48 “FIRPTA Affidavit” means an affidavit complying
with Section 1445 of the United States Internal Revenue Code.
1.1.49 “Fullerton Theatre Foundation” means Fullerton
Historic Theatre Foundation, a California nonprofit corporation.
1.1.50 “Grant Deed(s)” means, as applicable: (a) a deed in substantially the form of Exhibit D-1 to this Agreement to be used to convey the City’s interest in the Triangle Lot/City Property; (b) a deed in substantially the form of Exhibit D-2 to this Agreement to be used to convey the Agency ’s interest in the Pomona Property/Agency Property to Developer; and (c) a deed in substantially the form of Exhibit D-3 to this Agreement to be used to convey the City’s interest in the Vacated Portion of Ellis Place upon the completion of the Ellis Place Vacation.
1.1.51 “Governmental Agency” means any and all courts,
boards, agencies, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city, or otherwise) whether now or later in existence.
1.1.52 “Governmental Requirements ” means all codes,
statutes, ordinances, laws, permits, orders, and any rules and regulations promulgated thereunder of any Governmental Agency.
1.1.53 “Hazardous Substances” means, without implied
limitation, substances defined as “hazardous substances,” “ hazardous material, ” “toxic substance,” “solid waste,” or “pollutant or contaminate” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601 et seq.; the Toxic Substances Control Act (“TSCA”) (15 U.S.C.
Sections 2601 et seq .); the Hazardous Materials Transportation Act, 49 U.S.C.
Sections 1801 et seq .; the Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901 et seq .; those substances listed in the United States De partment of Transportation (DOT) Table (49 CFR 172.101), or by the EPA, or any successor authority, as hazardous substances (40 CFR Part 302); and those substances defined as “hazardous waste” in Section 25117 of the California Health and Safety Code or,
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as “hazardous substances ” in Section 25316 of the California Health and Safety Code; other substances, materials, and wastes that are, or become, regulated or classified as hazardous or toxic under federal, state, or local laws or regulations and in the reg ulations adopted pursuant to said laws, and shall also include manure, asbestos, polychlorinated biphenyl, flammable explosives, radioactive material, petroleum products, and substances designated as a hazardous substance pursuant to 33 USC Section 1321 or listed pursuant to 33 USC Section 1317.
1.1.54 “Indemnified Parties” has the meaning ascribed to the term in Section 5.9.
1.1.55 “Lender” means any state or federally chartered
bank, savings and loan, capital investment group, life insurance company, individual, private equity firm, or other third party that makes a loan to Developer for acquisition or construction of the Project.
1.1.56 “Lien” means any mortgage, deed of trust, or other security instrument encumbering Developer ’s fee interest in the City/Agency Properties and/or Project, or any part thereof, or any pledge or other agreement given as security for the repayment of a Loan and by whic h a Lender would be able to acquire any interest in Developer and/or the Developer’s interest in the City/Agency Properties and/or the Project following Developer’s breach of any obligation thereunder.
1.1.57 “Loan” means any loan or third-party equity/capital contribution (e.g., mezzanine financing) for the Project.
1.1.58 “Loan Documents” means the various documents
and instruments made by and between Developer and a Lender that evidence a Loan and the security for repayment of such Loan.
1.1.59 “Maintenance Deficiency ” has t he meaning
ascribed to the term in Section 5.3.1.
1.1.60 “New Title Matter ” has the meaning ascribed in
Section 2.4.2 of this Agreement.
1.1.61 “Normal Business Hours ” means the normal
business hours of the City.
1.1.62 "Official Records” means the Official Records in Office of the County Recorder of the County.
1.1.63 “Outside/Not to Exceed Escrow Closing Date ”
has the meaning ascribed in Section 3.7.
1.1.64 “Parking Area Component Project” has the
meaning ascribed in the Recitals to this Agreement.
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1.1.65 “Party” means, individually, the City, Agency, or Developer, as applicable.
1.1.66 “Parties” means, collectively, the City, Agency, and Developer.
1.1.67 “PCO Report ” means a preliminary change of
ownership report provided for in California Revenue and Taxation Code Section 480.3.
1.1.68 “Permitted Exceptions ” means (i) any and all
items shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that Developer accepts, pursuant to Section 2.4; (ii) any exceptions from coverage under the proposed Title Policy resulting from Developer’s activities on the Properties; (iii) non-delinquent property taxes and assessments; (iv) this Agreement; or (v) the Grant Deeds for the City/Agency Properties.
1.1.69 “Permitted Transfer” means and refers to any of
the following types of Transf ers by Developer, where the person or entity to which such Transfer is made expressly assumes the obligations of Developer under this Agreement in a written instrument:
(1) Any Transfer, directly or indirectly, of stock or
equity of Developer that does not change Control by Dan Almquist and/or Michael Burnett of the Properties or the Project, or any portion or portions thereof, including without limitation the assignment of any equity interests to any entity Controlled by Dan Almquist and/or Michael Burnett;
(2) Any Transfer of any interest in Developer , this
Agreement, the Properties, or the Project, or any portion thereof, irrespective of the percentage of ownership: (i) to any other owner of any interest in Developer so long as Dan Almquist and/or Michael Burnett remains in Control of Developer; or (ii) to any Affiliate Controlled by Dan Almquist and/or Michael Burnett, or (iii) to any other person or entity in which any holder of an interest (including any beneficial interest) in Developer is a manager, officer or partner or in which any of the aforementioned is a shareholder, member or partner (including a beneficial owner) as long as Dan Almquist and/or Michael Burnett remains in Control; or (iv) by NFRED LLC to Fox Harbor LLC on the Effective Date; and
(3) Any Lien given to Lender in connection with a
Loan approved by the City pursuant to Section 6.3, or any transfer resulting from the foreclosure thereof or deed in lieu of foreclosure thereof. (4) Any lease or subleas e that conveys the use and
occupancy of any separate space within improvements developed, renovated and/or constructed by Developer (including but not limited to any subdivided commercial condominium unit duly formed pursuant to Civil Code section 4000 et seq . and any other applicable law) on the City/Agency Properties as part of the Project.
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(5) Any transfer in a real property interest for an
individual residential unit that has obtained or, by completion of any “punch- list” items in order to obtain, a Completion of Construction pursuant to this Agreement and receipt of a certificate of occupancy, including but not limited to a transfer to a purchaser by sale, a renter by lease or sublease, or other real property interest that conveys ownership, right of ownership, use and occupancy, or right of use and occupancy, in a residential unit (including but not limited to any subdivided residential condominium unit duly formed pursuant to Civil Code section 4000 et seq. and any other applicable law).
(6) Any transfer to any joint venture entity or entities duly organized under law in which Developer (or any of its Affiliates) or Dan Almquist exercises Control.
(7) For any Permitted Transfer as authorized by this
Agreement, Developer shall deliver to the City and Agency written notification of said Transfer from the assignee to assignor entities within a reasonable time, not to exceed thirty (30) days from date of assignment.
1.1.70 “Plans and Specifications ” means those
applications and plans submitted by the Developer and approved by the City for the design and construction of the Project.
(1) “Pipelines Easement” means the right, title, and interest, along with the related rights and obligations, including rights to own, operate, access, excavate, monitor, abandon and/or re -abandon, and modify, pipelines and any appurtenances thereto located on the Triangle Lot/City Property by virtue of those certain easements as recorded on May 9, 1913, in Book 232, Page 134 of Deeds and June 24, 1940 in Book 1025, Page 505 of Official Records. (2) “Pipelines Easement Quitclaim” means the Partial
Quitclaim of the Pipelines Easement from CHEVRON U.S.A. INC., as “Grantor” and successor in interest to The Standard Oil Company and Standard Oil Company of California, in favor of the City as “Grantee” in a form substantially similar to Exhibit G attached hereto and incorporated herein by this reference, which shall be executed forthwith by the City and delivered to CHEVRON U.S.A. INC. for execution and shall be delivered to Escrow for recordation no later than the Closing.
1.1.71 “Post-Closing Agreement ” means, as applicable,
either or both of the Vacated Port ion of Ellis Place Post- Closing Agreement and/or the Developer Easements Post-Closing Agreement.
1.1.72 “Preliminary Report” means a preliminary report
issued by the Title Company in contemplation of the issuance of the Title Policy, accompanied by legible copies of all documents listed in Schedule B of the report as exceptions to coverage under the proposed Title Policy. The Parties acknowledge that they may prepare one (1) or more Preliminary Reports for each parcel, or group
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of parcels, comprising the City/Agency Properties. In such case, all reports, notices, and objection letters that pertain to the Preliminary Report for the entirety of the Properties shall apply separately to each Preliminary Report associated with a parcel or a group of parcels.
1.1.73 “Project” means the construction and development of the Properties as described in the Recitals of this Agreement and more fully detailed in the Scope of Development . For clarity, whenever this Agreement references the “Project or a portion thereof” (or similar text as may herein), the Agreement shall be construed to mean all or any portion of Project that is on the Developer Property, Triangle Lot/City Property, Pomona Avenue /Agency Property, and, as applicable, the Vacated Portion of Ellis Place and Developer Easements, collectively.
1.1.74 “Project Completion Date” means that date set
forth by which a Certificate of Completion shall be issued for the Commercial Component Project. The Project Completion Date shall be no later than the date set forth in the Schedule of Performance.
1.1.75 “Properties” means, collectively, the Developer
Property, Triangle Lot/City Property, Pomona Avenue/Agency Property, and, as applicable, the Vacated Portion of Ellis Place and Developer Easement Areas. In further explanation of the foregoing, the Vacated Portion of Ellis Place and Developer Easement Areas are subject to conditions set forth in this Agreement prior to the conveyance from City to Developer; upon the conveyance from City to Developer of either the Vacated Portion of E llis Place or Developer Easement Areas, or both, pursuant to this Agreement, then “Properties” as defined herein shall continue to include the Vacated Portion of Ellis Place and Developer Easement Areas, as applicable; at such time as Developer or City ele cts to partially terminate this Agreement with respect to the conveyance from City to Developer of the Vacated Portion of Ellis Place , then the term Properties shall thereafter cease to include the Vacated Portion of Ellis Place; and at such time as Develo per or City elects to partially terminate this Agreement with respect to the Developer Easement Grant, then the term Properties shall thereafter cease to include the Developer Easement Areas.
1.1.76 “Property Transfer” means and refers to any
“change in ownership,” as defined in Revenue and Taxation Code Sections 60 et seq., of all or any portion of the City/Agency Properties.
1.1.77 “Purchase Price” means, collectively, the City
Purchase Price and Agency Purchase Price.
1.1.78 “Record”, “recorded”, “recording,” or
“recordation” each means and refers to recordation of the referenced document in the Official Records.
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1.1.79 “Schedule of Performance” means the schedule
for the performance of certain actions by the Parties under this Agreement, a copy of which is attached to th is Agreement as Exhibit C and incorporated herein by this reference.
1.1.80 “Restrictive Covenant ” means the Restrictive
Covenant in the form of Exhibit D to this Agreement to be recorded against the Triangle Lot/City Property and Pomona Avenue/Agency Property at the Close of Escrow to provide record notice of the restrictions specified therein applicable thereto.
1.1.81 “S cope of Development ” means the detailed
description of the Project attached to this Agreement as Exhibit B (titled “Fox Block Project Description”) and incorporated herein by this reference.
1.1.82 “Title Company” means Ticor Title Company,
David Noble, Title Officer, 1500 Quail Street, 3rd Floor, Newport Beach, CA 92660, direct 714-289-3379; cell 949 -910-2127; fax 949-809- 0676; email [email protected], or other person and/or entity duly licensed in the State of California to serve as a title company as may be mutually agreed upon by the Parties.
1.1.83 “Title Notice Response” means the written
response of the City or Agency, as applicable, to Developer’s Title Notice, in which the City or Agency, as applicable, either (i) elects to cause the removal from the Preliminary Report of any matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that were objected to in Developer’s Title Notice, or (ii) elects not to cause the removal from the Preliminary Report of any matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that were objected to in Developer ’s Title Notice.
1.1.84 “Title Policy ” means a standard CLTA owners ’
policy of title insurance issued by the Title Company, with coverage in the full amount of the Purchase Price and insuring fee title to the City/Agency Properties, the Vacated Portion of Ellis, and the Developer Easements, subject only to the Permitted Exceptions. However, at Developer ’s option, Developer may acquire an ALTA extended coverage policy. Developer shall pay for the standard CLTA policy for the City/Agency Properties , the Vacated Portion of Ellis Place, and the Developer Easements, and Developer shall pay for any such additional or ALTA extended coverage. If the closing of Developer’s purchase of the Vacated Portion of Ellis Place and/or the Developer Easements occurs after the initial Closing pursuant to a Post - Closing Agreement as provided herein, then (a) the Title Policy delivered at Closing will not cover the Vacated Portion of Ellis and/or the Developer Easements, (b) the coverage amount thereunder shall be reduced by the amount of the Vacated Portion of Ellis Purchase Price and/or the Developer Easements Purchase Price, as applicable, and (c) Developer shall receive a separate Title Policy covering such later -acquired
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interests that is generally consistent with the requirements herein relating to the original Title Policy issued at Closing.
1.1.85 “Transfer” means any of the following:
(1) Except for any Permitted T ransfers, any total or
partial sale, assignment, conveyance, trust, power, or transfer in any other mode or form, by Developer of more than a 50 % interest in Developer ’s interest in this Agreement, the City/Agency Properties, or a series of such sales, assignments and the like that, in the aggre gate, result in a disposition of more than a 50 % interest in Developer’s interest in this Agreement, the City/Agency Properties or the Project; or (2) Except for any Permitted T ransfers, any total or
partial sale, assignment, conveyance, or transfer in any other mode or form, of or with respect to any interest in Developer or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than 50% of the membership interests in Developer; or
(3) Except for any Permitted Transfers, any merger,
consolidation, sale, or lease of all or substantially all of the assets of Developer or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 50% interest of all or substantially all of the assets of Developer; or
(4) Any Property Transfer.
1.1.83 “Triangle Lot/City Property” has the meaning ascribed in the Recitals of this Agreement.
1.1.86 “Unavoidable Delay” means any delay that is
caused exclusively by the other party or that is beyond the control of the City, the Agency, or Developer, including delay caused by strikes, acts of God, pandemic or other health emergency, weather, inability to obtain labor or materials, economic recession or depression (defined for purposes of this Agreement as a significant decline in general economic activity in Orange County, California (as determined by data from the Los Angeles -Riverside-Orange County, CA statistical area for the U.S. Bureau of Labor Statistics) or larger regional area (such as the State of California), with at least two consecutive quarters of economic decline, as reflected by Gross Domestic Product (GDP) in conjunction with monthly indicators such as a rise in unemployment), inability to obtain governmental permits or approvals, governmental restrictions, civil commotion, fire or similar causes.
1.1.87 “Vacated Portion of Ellis Place ” has the meaning ascribed in the Recitals of this Agreement.
1.1.88 “Vacated Portion of Ellis Place Grant Deed”
means a grant deed substantially in the form attached hereto as Exhibit D-3, granting to Developer the Vacated Portion of Ellis Place.
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1.1.89 “Vacated Portion of Ellis Place Post -Closing
Agreement” means a Post -Closing Agreement to be entered into in the event that , prior to the in itial Closing, City is unable to complete the Ellis Place Vacation, providing for (a) memorialization of City’s contractual obligation to use best and good faith efforts to obtain the Ellis Place Vacation , and once obtained, to execute and record the Vacat ed Portion of Ellis Place Grant Deed in exchange for the Vacated Portion of Ellis Place Purchase Price; (b) the Vacated Portion of Ellis Place Purchase Price shall not be paid to City at Closing, but shall be held back in Escrow and paid to City concurrently with the City’s execution, delivery to Developer and recordation in the Official Records of the Vacated Portion of Ellis Place Grant Deed; (c) concurrently with the Closing of its purchase of the Vacated Portion of Ellis Place, Developer shall be entitl ed to receive a Title Policy with coverage in the amount of the Vacated Portion of Ellis Place Purchase Price, subject only to applicable Permitted Exceptions (and City shall be subject to all covenants and obligations relating to the delivery of such title policy as it is with respect to the Title Policy delivered to Closing); (d) if the City is unable to complete the Ellis Place Vacation by the one hundred eightieth day (180th) day following the Closing, then Developer and City each shall have the right, by written notice to the other Party and to the Escrow Holder, to terminate Developer’s obligation to purchase the Vacated Portion of Ellis Place under this Agreement, and the portion of the City Purchase Price equal to the Vacated Portion of Ellis Place Purchase Price shall be returned by Escrow Holder to Developer (and Developer and City shall deliver any instruction as reasonably required by Escrow Holder to effectuate the foregoing); and (e) if either Developer or City exercises the partial termination right described in subdivision (d) of this Section, Developer shall have the right to alter the design of the Commercial Component Project to remove the improvements, uses and features that had originally been planned for the Vacated Portion of Ellis Place.
1.1.90 “Vacated Portion of Ellis Place Purchase Price”, means the portion of the City Purchase Price allocable to the Vacated Portion of Ellis Place, as set forth in the City Properties Appraisal.
1.2 Representations and Warranties.
1.2.1 City Representations and Warranties . The
representations and warranties of City contained in this Section 1.2.1 are based on the actual knowledge of the City Manager as of the Effective Date. All representations and warranties contained in this Section 1.2.1 are true and correct as of the Effective Date. City ’s liability for misrepresentation or breach of warranty, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. City hereby makes the following representations and warranties and acknowledges that the execution of this Agreement by Developer has been made in material reliance by Developer on such representations and warranties:
(1) City is a California municipal corporation, duly
formed and operating under the laws of the State of California. City has the legal
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power, right and authority to enter into this Agreement and to execute the instruments and documents referenced herein, and to consummate the transactions contemplated hereby.
(2) The persons executing any instruments for or on
behalf of City have been authorized to act on behalf of City and this Agreement is valid and enforceable against City in accordance with its terms and each instrument to be executed by City pursuant hereto or in connection therewith will, when executed, shall be valid and enforceable against City in accordance with its terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of and compliance with this Agreement by City.
(3) City has taken all requisite action and obtained
all requisite consents for agreements or matters to which City is a party in connection with entering into this Agreement and the instruments and documents referenced herein and in connection with the consummation of the transactions contemplated hereby.
(4) City has commenced the abandonment/vacation
process for the Vacated Portion of Ellis Place and such process can be completed in accordance with all applicable laws, with the stated goal to have adopted a Resolution to Vacate within six (6) months after the Closing.
(5) If the City becomes aware of any act or
circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by the City under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based on the City’ s knowledge or belief as of a certain date, the City will give immediate written notice of such changed fact or circumstance to Developer.
1.2.2 Agency Representations and Warranties . The
representations and warranties of Agency contained in this Section 1.2.2 are based on the actual knowledge of the Executive Director as of the Effective Date. All representations and warranties contained in this Section 1.2.2 are true and correct as of the Effective Date. Agency’s liability for misrepresentation or breach of warranty, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. Agency hereby makes the following representations and warranties and acknowledges that the execution of this Agreement by Developer has been made in material reliance by Developer on such representations and warranties:
(1) Agency is the successor agency for the City as
defined in Health and Safety Code sections 34171(j) and 34173, duly formed and operating under the laws of the State of California. Subject to approval of this Agreement by Agency ’s board, Agency has the legal power, right and authority to
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enter into this Agreement and to execute the instruments and documents referenced herein, and to consummate the transactions contemplated hereby. (2) The persons executing any instruments for or on
behalf of Agency have been authorized to act on behalf of Agency and this Agreement is valid and enforceable against Agency in accordance with its terms and each instrument to be executed by Agency pursuant hereto or in connection therewith will, when executed, shall be valid and enforceable against Agency in accordance with its terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of and compliance with this Agreement by Agency.
(3) With the exception of approval of this Agreement
by the Agency’s board, Agency has taken all requisite action and obtained all requisite consents for agreements or matters to which Agency is a party in connection with entering into this Agreement and the instruments and documents referenced herein and in connection with the consummation of the transactions contemplated hereby. (4) If Agency becomes aware of any act or
circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by Agency under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based on the Agency’s knowledge or belief as of a certain date, the Agency will give immediate written notice of such changed fact or circumstance to Developer.
1.2.3 Developer Representations and Warranties. The
representations and warranties of Developer contained in this Section 1.2.3 are based on the actual knowledge of Developer and Dan Almquist as of the Effective Date.
All representations and warranties contained in this Section 1.2.3 are true and correct as of the Effective Date. Developer’ s liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. Developer hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by City and A gency has been made in material reliance by City and Agency on such covenants, representations and warranties:
(1) Developer is a California limited liability
company, lawfully entitled to do business in the State of California. Developer has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein and to consummate the transactions contemplated hereby. The persons executing this Agreement and the instruments referenced herein on behalf of Developer hereby represent and warrant that such persons have the power, right, and authority to bind Developer.
(2) Developer has taken all requisite action and
obtained all requisite consents in connection with entering into this Agreement and
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the instruments and documents referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required for Developer’s authorization to enter into Agreement.
(3) Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument, or other obligation to which Developer is a party or by which Developer may be bound, or under law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to Developer or to the Properties.
(4) This Agreement is, and all agreements,
instruments and documents to be executed by Developer under this A greement shall be duly executed by and valid and legally binding upon Developer and enforceable in accordance with their respective terms. No approval, consent, order, or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of in compliance with this Agreement by Developer. (5) If Developer becomes aware of any act or
circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by Developer under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based on Developer ’s knowledge or belief as of a certain date, Developer will give immediate written notice of such changed fact or circumstance to the City and Agency.
1.3 Effective Date. This Agreement is dated in the Preamble for reference purposes only. This Agreement shall not become effective until the date on which all of the following are true (“Effective Date”): (i) this Agreement is executed by Dan Almquist as manager of NFRED LLC (which may execute this Agreement as manager of Fox Harbor LLC) and delivered to City and Agency; (ii) Developer has delivered to City and Agency a certified copy of the official action taken by all of the members of Developer approving this Agreement, in the form attached to this Agreement as Exhibit E; (iii) following all legally required notices and hearings, this Agreement is approved by the City Council and executed by the authorized representatives of City; and (iv) following all legally required notices and hearings, this Agreement is approved by the Agency’s governing body and executed by the authorized representatives of Agency. Following execution by the City and Agency, the City shall provide Developer written confirmation of the Effective Date.
1.4 E
xhibit List. The following is a list of the Exhibits attached to this Agreement.
Each of the Exhibits is incorporated by this reference into the text of this Agreement.
Exhibit A-1 Legal Description of Developer Property
Exhibit A-2 Legal Description of the Triangle Lot/City Property Exhibit A-3 Legal Description of the Pomona Avenue/ Agency Property Exhibit A-4 Legal Description of the Vacated Portion of Ellis Place
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Exhibit B Scope of Development
Exhibit C Schedule of Performance
Exhibit D-1 Form of Grant Deed City Property
Exhibit D-2 Form of Grant Deed Agency Property
Exhibit D-3 Form of Vacated Portion of Ellis Place Grant Deed Exhibit D-4 Form of Developer Easements Grant
Exhibit E Form of Restrictive Covenant
Exhibit F Form of Official Action of Developer
Exhibit G Form of Certificate of Completion
Exhibit H Pipelines Easement Quitclaim
Exhibit I CC&Rs Amendment
Exhibit J Permitted Exceptions
ARTICLE II
PROPERTY DISPOSITION
2.1 Purchase and Sale . In exchange for the Purchase Price and Developer ’s other covenants and undertakings set forth in this Agreement, (a) the City shall (i) sell the Triangle Lot/City Property, (ii) upon completion of the Ellis Street Vacation sell the Vacated Portion of Ellis Place to Developer, and (iii) upon City’s receipt of consents for the grant of the Developer Easements and use of the Developer Easement Areas (including the approval of the “Design Review Entity” pursuant to Section 7.2 of the CC&Rs) as evidenced by the execution by all parties to the CC&Rs Amendment, including the Fullerton Theatre Foundation, grant to Developer the Developer Easements pursuant to the Developer Easement s Grant, and Developer shall purchase the Triangle Lot/City Property, the Vacated Portion of Ellis Place and the Developer Easements from the City, and (b) the Agency shall sell the Pomona Avenue/Agency Property to Developer and Developer shall purchase the Pomona Avenue/Agency Property from the Agency, in accordance with the terms and conditions of this Agreement. For the purposes of exchanging funds and documents to complete the purchase and sale of the City /Agency Properties from the City and Agency to Developer in accordance with the terms of this Agreement, the Parties agree to open an escrow ( “Escrow”) with the Escrow Holder. ARTICLE III of this Agreement constitutes the joint escrow instructions of the Parties to the Escrow Holder for completion of the Escrow for the sale of the City/Agency Properties, as contemplated by this Agreement. The Parties shall execute such further escrow instructions, consistent with the provisions of this Agreement, as may be reasonably requested by the Escrow Holder. In the event of any conflict between the provisions of this Agreement and any other escrow instructions requested by the Escrow Holder, the provisions of this Agreement shall control.
2.2 P
ayment of Purchase Price. Developer shall deposit the Purchase Price into Escrow, subject to credit to Developer for the Earnest Money Deposit. The Agency Purchase Price will be paid to the Agency upon Closing and the City Purchase Price will be paid to the City upon Closing, provided that, if the closing of the conveyance of the Vacated Portion of Ellis Place and/or the grant of the Developer Easements cannot occur at Closing for the reasons set forth in Sections
3.2.1(4), 3.2.1(5), 3.2.2(10), and 3.2.2(11) of this Agreement , then such conveyance and/or such grant of easement shall occur following the initial Closing pursuant to the Vacated Portion of Ellis
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Place Post-Closing Agreement and/or the Developer Easements Post- Closing Agreements, to be negotiated and entered into by the Parties in accordance with the requirements set forth herein.
2.3 Earnest Money Deposit. Concurrent with its opening of the Escrow, Developer shall deposit into Escrow the Earnest Money Deposit and if Developer fails to do so within five (5) business days after this Agreement has been executed and delivered by the Parties, then this Agreement shall be void and of no further force or effect . The Earnest Money Deposit shall be nonrefundable upon the conclusion of the Due Diligence Period, the failure of a condition to the Closing for Developer’s benefit or a default by the City or Agency under this Agreement . Upon the Close of Escrow, the City Deposit shall be credited to Developer toward the City Purchase Price and paid to the City as part of the City Purchase Price. Upon the Close of Escrow, the Agency Deposit shall be credited to Developer toward the Agency Purchase Price and paid to the Agency as part of the Agency Purchase Price. Should Escrow fail to close by reason of a default by Developer, the Earnest Money Deposit shall be forfeited by Developer and shall be paid to the City and Agency upon the cancelation of Escrow in accordance with Section 3.11.
2.4 T
itle Approval.
2.4.1 Preliminary Report. Attached hereto as Exhibit J is a Preliminary Report for the T riangle Lot/City Property, the Vacated Portion of Ellis Place , the Developer Easement Areas and the Pomona Avenue/Agency Property, marked to show the title exceptions that Developer is willing to accept in the Title Policy upon Closing (or, in the case of the Vacated Portion of Ellis Place and/or the Developer Easement Areas, following the initial Closing concurrently with the Developer’s acquisition of such interests) .
Developer hereby approves the condition of title to the Triangle L ot/City Property, the Vacated Portion of Ellis Place, the Developer Easement Areas and the Pomona Avenue/Agency Property subject only to the exceptions shown on Exhibit J . City and Agency hereby agree to deliver such ALTA Affidavits, undertakings and other instruments as reasonably required by Title Company in order to cause the Title Policy (or several title policies, if applicable, for the Vacated Portion of Ellis Place and/or Developer Easement Areas) to be issued showing only the exceptions set forth on Exhibit J.
2.4.2 Developer’s Title Notice. If at any time prior to the Close of Escrow the Title Company issues an updated Preliminary Report containing any previously undisclosed matter affecting title to the City/Agency Properties, or the City or Agency otherwise becomes aware of any previously undisclosed matter affecting title to the Properties or any of them and so notify Developer (any such item(s), collectively, a “New Title Matter”), then within five (5) days following Developer’s receipt of such New Title Matter, Developer shall deliver a Developer ’s Title Notice to the City or Agency as applicable setting forth its objection s, if any, thereto. If Developer fails to deliver a Developer’s Title Notice to the City with respect to a New Title Matter affecting the Triangle Lot/City Property, the Vacated Portion of Ellis Place, or the Developer Easement Areas within five (5) days following Developer’s receipt of a New Title Matter affecting such properties or any of them, Developer will be deemed to have disapproved such New Title Matter and refused to accept title to said property subject to such New Title Matter , in which case any Party shall have the right, subject to Section 2.4.6, to cancel the Escrow and terminate this Agreement, in that Party’s sole discretion, without liability to Developer,
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City, or Agency, or any other person, by delivery of a written notice of termination to the other Parties and Escrow Holder. If Developer fails to deliver a Developer’s Title Notice to the Agency with respect to a New Title Matter affecting the Pomona Avenue/Agency Property within five (5) days following Developer’s receipt of a New Title Matter affecting such propert y, Developer will be deemed to disapprove d such New Title Matter and refused to accept title to the said property, in which case any Party shall have the right, subject to Section 2.4.6, to cancel the Escrow and terminate this Agreement, in that Party’s sole discretion, without liability to Developer , City, or Agency, or any other person, by delivery of a written notice of termination to the other Parties and Escrow Holder.
2.4.3 Title Notice Response.
(1) Triangle Lot/City Property, the Vacated Portion
of Ellis Place and the Developer Easement Area s. Within five (5) days following receipt by the City of Developer ’s Title Notice, if any, the City shall serve City ’s Title Notice Response. If Developer’s Title Notice does not object to any New Title Matter, the City shall not be required to serve City ’s Title Notice Response. If the City does not serve City’ s Title Notice Response, if necessary, within five (5 ) days following its receipt of Developer’s Title Notice, the City shall be deemed to elect not to remove any New Title Matter objected to in Developer ’s Title Notice. If the City elects in City’s Title Notice Response to cause the removal of any New Title Matter objected to in Developer’s Title Notice, the City shall cause the removal of each such objectionable matter as soon as possible and within fifteen (15) days following receipt by Developer of City’ s Title Notice Response or such other period of time that may be agreed to in writing by both the City and Developer , and such New Title Matter shall not be a Permitted Exception. Notwithstanding any provision to the contrary in this Agreement, the City acknowledges and agrees that without the requirement for any Developer’s Title Notice from Developer the Pipelines Easement is a disapproved matter that can only be cured by recordation of the Pipelines Easement Quitclaim duly executed and delivered by the City and Chevron USA Inc. The execution and delivery of the Pipelines Easement Quitclaim by the City shall be expedited by the City and shall be a condition to Developer’s obligation proceed to Closing. (2) Pomona Avenue/Agency Property. Within five
(5) days following receipt by the Agency of Developer ’s Title Notice, if any, the Agency shall serve Agency’s Title Notice Response. If Developer’s Title Notice does not object to any New Title Matter, the Agency shall not be required to serve Agency’s Title Notice Response. If the Agency does not serve Agency’s Title Notice Response, if necessary, within five (5 ) days following its receipt of Developer ’s Title Notice, Agency shall be deemed to elect not to remove any New Title Matter objected to in Developer’s Title Notice. If Agency elects in Agency ’s Title Notice Response to cause the removal of any New Title M atter objected to in Developer ’s Title Notice, the Agency shall cause the removal of each such objectionable matter from title as soon as possible and within fifteen (15 ) days following receipt by Developer of Agency’s Title Notice Response or such other period of time that may be agreed to in writing by both the City and Developer, and such New Title Matter shall not be a Permitted Exception.
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2.4.4 Title Notice Waiver.
(1) Triangle Lot/City Property, the Vacated Portion of Ellis Place and the Developer Easement Areas. If the City is unwilling or unable to cause the removal of any New Title M atter objected to in Developer ’s Title Notice, then, within five (5) days following Developer’s receipt of City’s Title Notice Response stating that the City is unwilling to remove or cause the removal of such New Title M atter or upon the expiration of the above fifteen (15) day time period during which the City elected to remove such New Title Matter from the Preliminary Report and was unable to do so, Developer may either (1) refuse to accept the title to and conveyance of the Properties, in which case any Party shall have the right, subject to Section 2.4.6, to cancel the Escrow and terminate this Agreement without liability to any Party or any other person, by delivery of a written notice of termination to the Escrow Holder, or (2) waive its objection to any items set forth in Developer’s Title Notice by delivering Developer’s Title Notice Waiver to the City. Failure by Developer to deliver Developer’s Title Notice Waiver, where City ’s Title Notice Response or the City’ s failure to serve City’s Title Notice Response indicates the City’s election not to cause the removal of any such New Title Matter objected to in Developer’s Title Notice, for the City to deliver City’s Title Notice Response under this Agreement, will be deemed Developer’s continued refusal to accept the title to and conveyance of the Triangle Lot/City Property, the Vacated Portion of Ellis Place and the De veloper Easement Areas, in which case any of the Parties shall have the right, subject to Section 2.4.6, to cancel the Escrow and terminate this Agreement, in that respective Party ’s sole discretion, without liability to any Party or any other person, by delivery of a written notice of termination to the other Parties and Escrow Holder. (2) Pomona Avenue/Agency Property. If the Agency
is unwilling or unable to cause the removal of any New Title Matter objected to in Developer’s Title Notice, then, within five (5) days following Developer’s receipt of Agency’s Title Notice Response stating that the Agency is unwilling to remove or cause the removal of such New Title Matter objected to in Developer ’s Title Notice or upon the expiration of the above fifteen (15 ) day time period during which the Agency elected to remove such New Title Matter from the Preliminary Report and was unable to do so, Developer may either (1) refuse to accept the title to and conveyance of the Pomona Avenue/Agency Property , in which case any Party shall have the right, subject to Section 2.4.6, to cancel the Escrow and terminate this Agreement without liability to any Party or any other person, by delivery of a written notice of termination to the Escrow Holder, or (2) waive its objection to any items set forth in Developer’s Title Notice by delivering Developer’s Title Notice Waiver to the Agency. Failure by Developer to deliver Developer ’s Title Notice Waiver, where Agency’s Title Notice Response or the Agency’ s failure to serve Agency ’s Title Notice Response indicates the Agency’s election not to cause the removal of any such New Title Matter objected to in Developer ’s Title Notice, for the Agency to deliver Agency ’s Title Notice Response under this Agreement, will be deemed Developer’s continued refusal to accept the title to and conveyance of the Pomona Avenue/Agency Property, in which case any of the Parties shall have the right, subject to Section 2.4.6, to cancel the Escrow and terminate this Agreement, in that respective
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Party’s sole discretion, without liability to any Party or any other person, by delivery of a written notice of termination to the other Parties and Escrow Holder.
2.4.5 Intentionally Omitted.
2.4.6 Termination. Before exercising any right a Party may have under this Section 2.4 to cancel the Escrow and terminate this Agreement, such Party shall notify the non- terminating Parties in writing of its election to terminate and shall, upon a non-terminating Party’s request, which must be delivered, if at all, within five (5) days following its receipt of the terminating Party ’s notice of election to terminate, meet and confer with the non-terminating Parties for a period of five (5) days. During such time, the Parties shall meet as often as reasonably requested by any Party to negotiate, in good faith, methods and means by which the objectionable title matter may be eliminated or mitigated. Nothing herein shall constitute an agreement, representation, or warranty by any Party that an acceptable resolution of the objectionable title matter will be achieved, nor shall any Party be obligated to expend any funds or undertake any other action whatsoever with respect to such title matter unless such agreement is reduced to a writing which is approved by all Parties, in their sole and absolute discretion. If, at the end of such five (5 ) day period, the Parties have not been able to agree on a mutually acceptable method of resolving such title matter, the Escrow shall be cancel led, this Agreement shall be terminated without liability to any Party, and the Parties shall proceed pursuant to Section 3.11.
2.4.7 C
ity/Agency Properties Not Subject to Separate
Disposition. If Developer, as a result of the title review process in this Secti on 2.4, does not accept the condition of title for any of the Properties and the Escrow is to be cancelled for such property pursuant to this Agreement, then Developer similarly shall be deemed to have not accepted the condition of title for all the Proper ties and the Escrow shall similarly be cancelled for all the Properties. It is expressly understood and agreed among the Parties that, if the Escrow is to close and result in the disposition of the City/Agency Properties to Developer, Developer shall purchase both the Triangle Lot/City Property and Pomona Avenue/Agency Property together, and that Developer may not, pursuant to this Agreement, purchase the Triangle Lot/City Property without the Pomona Avenue/Agency Property, nor may Developer purchase, under this Agreement, the Pomona Avenue/Agency Property without the Triangle Lot/City Property, as of the Close of Escrow.
2.4.8 C
ancellation of Escrow and Ellis Place Vacation. If
the Escrow is cancelled for any reason by any Party, Developer acknowledges and agrees that the City shall have no further obligation to Developer to continue processing the Ellis Place Vacation.
2.5 D
eveloper Investigations .
2.5.1 Developer shall have until the expiration of the Due Diligence Period to conduct all of its Due Diligence Investigations with respect to the
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entirety of the City/Agency Properties. Developer shall use commercially reasonable efforts to complete all of its Due Diligence Investigations within the Due Diligence Period and shall conduct all of its Due Diligence Investigations at its sole cost and expense. Developer shall rely solely and exclusively on the results of its Due Diligence Investigations of the City/Agency Properties, including, without limitation, investigations regarding geotechnical soil conditions, compliance with applicable laws pertaining to the use of the City/Agency Properties by Developer and any other matters relevant to the condition or s uitability of the City/Agency Properties for the Project, as Developer may deem necessary or appropriate. Notwithstanding the foregoing, Developer shall continue to have access to the City/Agency Properties in accordance with the provisions hereof following the expiration of the Due Diligence Period until Closing to conduct such additional investigations as Developer may deem necessary or appropriate. Neither City nor the Agency makes any representation or warranty to Developer relating to the condition of the City/Agency Properties or suitability of the City/Agency Properties for any intended use or development by Developer. Developer shall deliver a Due Diligence Investigation Conclusion Notice to the City, the Agency, and the Escrow Holder prior to the end of the Due Diligence Period. If Developer does not unconditionally accept the condition of the City/Agency Properties by delivery of its Due Diligence Investigation Conclusion Notice indicating such acceptance prior to the end of the Due Diligence Period, Developer shall be deemed to have rejected the condition of the City/Agency Properties and refused to accept conveyance of title to the City/Agency Properties. If the condition of the City/Agency Properties is rejected or deemed rejected by Develope r, then any Party shall have the right, subject to Section 2.4.6, to cancel the Escrow and terminate this Agreement, in that Party’s sole discretion, without liability to any Party or any other person, by delivery of a written notice of termination to all Parties and Escrow Holder. Developer shall accept all conditions of the City/Agency Properties (which expressly includes the Pipelines Easement Quitclaim) without any liability of the City or Agency whatsoever, upon Developer’s acceptance of the condition of the City/Agency Properties indicated in its Due Diligence Investigation Conclusion Notice. Developer’s delivery of its Due Diligence Investigation Conclusion Notice indicating Developer ’s unconditional acceptance of the condition of the City/Agency Pr operties shall evidence the acceptance of the condition of the City/Agency Properties (which expressly includes the Pipelines Easement Quitclaim) by Developer in its existing “ AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS ” condition, as of the last day of the Due Diligence Period. In its sole discretion, Developer may accept the City/Agency Properties in its “ AS IS, ” “WHERE IS ” and “SUBJECT TO ALL FAULTS ” condition at any time before the end of the Due Diligence Period. D eveloper shall conduct during the Due Diligence Period such environmental assessments of the City/Agency Properties as Developer deems appropriate. If such assessments reveal the presence of any Hazardous Substance on the City/Agency Properties in levels that exceed applicable Governmental Requirements, then the City or Agency, as applicable, shall promptly and at its sole cost and expense install security fencing around the City/Agency Properties . If such assessments do reveal the presence of any Hazardo us Substances on the City/Agency Properties in levels that exceed
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applicable Governmental Requirements, then the Parties shall negotiate in good faith in an effort to reach agreement as to the allocation of responsibility and cost of remediation thereof.
2.5.2 Any Due Diligence Investigations (whether before
after expiration of the Due Diligence Period) of the City/Agency Properties by Developer shall not unreasonably and materially disrupt any then- existing use or occupancy of the City/Agency Properties or the operations of the City for the Triangle Lot/City Property or the Agency for the Pomona Avenue/ Agency Property.
Developer shall be liable for any damage or injury to any person or property arising from the acts of Developer, its employees, agents or representatives during the course of any Due Diligence Investigations on the City/Agency Properties and Developer shall indemnify, defend with counsel reasonably acceptable to the City and Agency, and hold harmless the City, the Agency and their elected officials, officers, directors, attorneys, contractors, agents and employees from any and all actual or alleged liens, claims, demands or liability arising from any Due Diligence Investigations by Developer on the City/Agency Properties, other than liability result ing from either (a) the mere discovery of pre -existing conditions or (b) the negligence or willful misconduct of City, Agency or their respective officers, employees or agents . Prior to commencing any Due Diligence Investigations on the City/Agency Properties, Developer shall deliver copies of policies or certificates of insurance to the City and Agency evidencing compliance by Developer with the insurance requirements of Section 5.9.
2.5.3 Before exercising any right a Party may have under this Section 2.5 to cancel the Escrow and terminate this Agreement, such Party shall notify the non- terminating Parties in writing of its election to terminate and shall, upon a non-terminating Party’s request, which must be delivered, if at all, within five (5) days following its receipt of the terminating Party’s notice of election to terminate, meet and confer with the non-terminating Parties for a period of five (5) days. During such time, the Parties shall meet as often as reasonably requested by any Party to negotiate, i n good faith, methods and means by which the objectionable Due Diligence matter may be eliminated or mitigated. Nothing herein shall constitute an agreement, representation, or warranty by any Party that an acceptable resolution of the objectionable Due Diligence matter will be achieved, nor shall any Party be obligated to expend any funds or undertake any other action whatsoever with respect to such Due Diligence matter unless such obligation is reduced to a writing which is approved by all Parties, in their sole and absolute discretion. If, at the end of such five (5) day period, the Parties have not been able to agree on a mutually acceptable method of resolving the objectionable Due Diligence matter, the Escrow shall be cancelled, this Agreement shall be terminated without liability to any Party, and the Parties shall proceed according to Section 3.11.
2.5.4 If Developer, as a result of its Due Diligence
Investigations at the completion of the Due Diligence process in this Section 2.5, does not accept the condition of the Triangle Lot/City Property and the Escrow is to be cancelled for the Triangle Lot/City Property pursuant to this Agreement, then
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Developer similarly shall be deemed to have not accepted the condition of the Pomona Avenue/Agency Property and the Escrow shall similarly be cancelled for the Pomona Avenue/Agency Property pursuant to this Agreement. Likewise, If Developer, as a result of the Due Diligence Investigations at the completion of the Due Diligence process in this Sect ion 2.5, does not accept the condition of the Pomona Avenue/Agency Property and the Escrow is to be cancelled for the Pomona Avenue/Agency Property pursuant to this Agreement, then Developer similarly shall be deemed to have not accepted the condition of the Triangle Lot/City Property and the Escrow shall similarly be cancelled for the Triangle Lot/City Property pursuant to this Agreement. It is expressly understood and agreed among the Parties that, if the Escrow is to close and result in the disposition of the City/Agency Properties to Developer, Developer shall purchase both the Triangle Lot/City Property and Pomona Avenue/Agency Property together, and that Developer may not, pursuant to this Agreement, purchase the Triangle Lot/City Property without the Pomona Avenue/Agency Property, nor may Developer purchase, under this Agreement, the Pomona Avenue/Agency Property without the Triangle Lot/City Property, as of the Close of Escrow
2.6 Developer to Obtain all Project Entitlements.
2.6.1 The City’s zoning, building and land use regulations (whether contained in ordinances, the City’s municipal code, conditions of approval, policies, practice or elsewhere) (collectively, the “ City Requirements ”), shall be applicable to the use and development of the Project on the Properties by Developer.
Developer acknowledges that all Plans and Specifications and any changes to the Plans and Specifications shall be subject to the City Requirements. No action by the City with reference to this Agreement or any related documents shal l be deemed to constitute a waiver of any City Requirements regarding the Properties, the Project, Developer, any successor-in-interest of Developer or any successor-in-interest to the Properties. The City Requirements may only be changed or waived by modification or variance approved by the City and consistent with this Agreement. No entitlement, permit, or other approval from the City for development of the Project on the Properties shall attach to any portion of the Properties or otherwise become effective to allow Developer to develop the Project on the Properties until after Developer takes fee title to that portion of the Properties to which such entitlement, permit, or other approval pertains. Under no circumstances shall Developer commence development of any portion of the Project on the Properties prior to Developer taking fee title to the Properties (provided that the foregoing shall not impair Developer’s right to build or develop on the Developer’s Property in accordance with City Requirements in the event of termination of this Agreement).
2.6.2 The approval of the Scope of Development shall not be binding on the City Council or the Planning Commission of the City regarding any approval of the Project required by such bodies. Developer obtains no right to develop the Project on the Properties or on any portion of the Properties by virtue of this Agreement, except that following the Close of Escrow, Developer shall possess the same rights as any other owner of property within the Properties that desir es to
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develop its property in a manner consistent with the City’ s General Plan. If any revisions of the Scope of Development are required by a Governmental Agency (other than the City) having jurisdiction over the Properties or the Project, Developer shall promptly make any such revisions that are generally consistent with the Scope of Development.
2.6.3 Notwithstanding any provision to the contrary in
this Agreement, following the Close of Escrow, Developer agrees to accept and comply fully with any and all conditions of approval applicable to all approvals, permits, and other governmental actions regarding the development or operation of the Project on the Properties, so long as such conditions of approval are consistent with the Scope of Development and this Agreement in all material respects.
2.6.4 Developer to Pay All Costs and Expenses . The
Parties agree that the City shall not provide any financial assistance to Developer in connection with the Project. Developer shall be solely responsible for paying for the costs of all design work, construction, labor, materials, fees, and permit expenses associated with the Project. Developer shall pay any and all fees and costs pertaining to the review and approval of the Project by the City, any other Governmental Agency, and any utility service provider, including the costs of preparation of all required construction, planning, and other documents reasonably required by a Governmental Agency pertinent to the development or operation of the Project on the Properties, including, but not limited to, specifications, drawings, plans, maps, permit applications, land use applications, zoning applications, environmental review and disclosure documents and design review documents. Developer shall pay for any and all costs, includin g, but not limited to, the costs of design, construction, relocation and securing of permits for sewer or utility improvements and connections, that may be required in development of the Project, whether located on or off of the Properties.
Developer shall obtain any and all necessary approvals, prior to the commencement of applicable portions of construction, and Developer shall take reasonable precautions to ensure the safety and stability of surrounding properties during said construction. In accordance with this Section 2.6.4, Developer shall be responsible for the costs, or in the case of clause (2) below) immediate reimbursement to the City upon delivery of an invoice for the costs, of the following:
(1) all fees or expenses of engineers, architects,
financial consultants, legal, planning or other consultants or contractors, retained by Developer for any study, analysis, evaluation, report, schedule, estimate, environmental review, planning and/or design activities, drawings, specifications or other activity or matter relating to the Properties or the Project or the negotiation of this Agreement that may be undertaken by Developer;
(2) all fees, charges and costs, make all deposits and
provide all bonds or other security associated with the submission to and processing by the City of any and all applications and other documents and information to be submitted to the City by Developer pursuant to this Agreement or otherwise associated with the Project.
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2.6.5 Developer shall use its good faith efforts to obtain all Entitlements from each Governmental Agency within the time period for such action set forth in the Schedule of Performance , subject to Unavoidable Delay; provided the effectiveness thereof shall be conditioned upon Developer taking title to the City/Agency Properties and Vacated Portion of Ellis Place.
ARTICLE III
ESCROW INSTRUCTIONS
3.1 Opening of Escrow. For purposes of this Agreement, the opening of Escrow shall be the first date on which a fully executed copy of this Agreement and Earnest Money Deposit are deposited with Escrow Holder ( “Escrow Opening Date”). Developer shall cause the Escrow to be opened within five (5) days following the Effective Date. Escrow Holder shall promptly confirm in writing to each of the Parties the date of the Escrow Opening Date. This ARTICLE III shall constitute the joint escrow instructions of the Parties to Escrow Holder for conduct of the Escrow to complete the purchase and sale of the Properties between them, as contemplated in this Agreement.
3.2 C
onditions to Close of Escrow . The conditions set forth below shall be satisfied or waived in writing by the respective benefited Party on or before the Escrow Closing Date or the Party benefited by any unsatisfied condition shall not be required to proceed to close Escrow.
3.2.1 D
eveloper’s Conditions to Close of Escrow .
Developer’s obligation to purchase the City/Agency Properties from the City and the Agency on the Escrow Closing Date shall be subject to the satisfaction of the following conditions precedent, each of which can only be waived in writing by Developer:
(1) Developer agrees to accept title to and
conveyance of the City/Agency Properties, pursuant to Section 2.4; (2) Developer delivers its Due Diligence
Investigation Conclusion Notice to the City, the Agency, and Escrow Holder indicating Developer’s unconditional acceptance of the condition of the City/Agency Properties, prior to the expiration of the Due Diligence Period; (3) The Pipelines Easement Quitclaim shall have
been executed by Chevron USA and the City, duly notarized and authorized by Chevron USA to be recorded in the Official Records concurrently with Closing; (4) If, as of Closing, the Vacated Portion of Ellis
Place is not in a condition to be conveyed to Developer because the Ellis Place Vacation has not been completed, then City shall have executed and delivered into Escrow for delivery upon Closing a Vacated Portion of the Elli s Place Post-Closing Agreement in form reasonably satisfactory to City and Developer;
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(5) If, as of Closing, City has not obtained consents
for the grant of the Developer Easements and use of the Developer Easement Are as (including the approval of the “Design Review Entity” pursuant to Section 7.2 of the CC&Rs), as evidenced by the execution by all parties to the CC&Rs Amendment including the Fullerton Theatre Foundation, then City shall have executed and delivered into Escrow for delivery upon Closing a Developer Easements Post-Closing Agreement in form reasonably satisfactory to City and Developer; (6) The Title Company is unconditionally
committed to issue the Title Policy for the Properties to be conveyed at the Closing, subject only to the Permitted Exceptions, to Developer; (7) The City deposits the items into the Escrow
required by Section 3.4;
(8) The Agency deposits the items into the Escrow
required by Section 3.5;
(9) The representations and warranties of the City set
forth in Section 1.2.1 are true and correct in all material respects on the Effective Date and on the Escrow Closing Date;
(10) The representations and warranties of the
Agency set forth in Section 1.2.2 are true and correct in all material respects on the Effective Date and on the Escrow Closing Date;
(11) All Entitlements, including City Requirements ,
have been granted, and Developer has accepted in its reasonable discretion (as part of the City’s process for reviewing and approving City Requirements) the conditions of approval that have attached to the City Requirements, and no lawsuits have been filed within the applicable statutes of limitation, or if such lawsuits have been filed, they have been fully litigated or settled to Developer’s satisfaction at its sole but reasonable discretion;
(12) The City and the Agency have completed all of
their material obligations required by this Agreement to be completed prior to the Close of Escrow; and
(13) Both the City and the Agency issue a written
notice to Developer and Escrow Holder that each of them has approved (or waived) their respective Conditions to Close of Escrow in Sections 3.2.2 and 3.2.3 (below) such that the Properties (other than the Vacated Portion of Ellis Place and the Developer Easements if delayed pursuant to Section 3.2.1(4) and/or (5) above) may proceed to Close.
3.2.2 City’s Conditions to Close of Escrow. The City’s obligation to sell the Triangle Lot/City Property to Developer on or before the Escrow Closing Date, and the City’s obligation to convey the Vacated Portion of Ellis Place
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and/or Developer Easements either at Closing or pursuant to Post -Closing Agreement(s), shall be subject to the satisfaction of the following conditions precedent, which can only be waived in writing by the City:
(1) Developer has deposited the City Purchase Price
less the Earnest Money Deposit into Escrow;
(2) Developer delivers its Due Diligence
Investigation Conclusion Notice to the City, the Agency and Escrow Holder indicating Developer’s unconditional acceptance of the physical condition of the City/Agency Properties, prior to the expiration of the Due Diligence Period; (3) The Title Company is unconditionally committed
to issue the Title Policy for the Properties (other than the Vacated Portion of Ellis Place and the Developer Easements if delayed pursuant to Section 3.2.1(4) and/or (5) above), subject to any Permitted Exceptions, to Developer; (4) All Entitlements have been granted by the City
(in the exercise of its police powers) and no lawsuits have been filed within the applicable statutes of limitation, or if such lawsu its have been filed, they have been fully litigated or settled;
(5) Developer has performed in all material respects
its obligations required by this Agreement to be completed prior to the Close of Escrow;
(6) The representations, warranties and covenants of
Developer set forth in Section 1.2.2 are true and correct in all material respects on the Effective Date and on the Escrow Closing Date;
(7) Developer deposits the funds and items into the
Escrow required by Section 3.3 for the Escrow;
(8) Developer remains under cont ract to purchase
the Developer Property with no requirement to close concurrently with the Close of Escrow;
(9) If the Pipelines Easement Quitclaim has not
previously been executed and recorded for the benefit of the City prior to the Close of Escrow, the Pipelines Easement Quitclaim shall be completely executed and notarized;
(10) If, as of Closing, the Vacated Portion of Ellis
Place is not in a condition to be conveyed to Developer because the Ellis Place Vacation has not been completed, then Developer shall have executed and delivered into Escrow for delivery upon Closing a Vacated Portion of the Ellis Place Post - Closing Agreement in form reasonably satisfactory to City and Developer; and
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(11) If, as of Closing, City has not obtained consents
for the grant of the Developer Easements and use of the Developer Easement Areas (including the approval of the “Design Review Entity” pursuant to Section 7.2 of the CC&Rs), as evidenced by the execution by all parties to the CC&Rs Amendment , including the Fullerton Theatre Foundation, then Developer shall have executed and delivered into Escrow for delivery upon Closing a Developer Easements Post-Closing Agreement in form reasonably satisfactory to City and Developer.
3.2.3 Agency’s Conditions to Close of Escrow . The
Agency’s obligation to sell the Pomona Avenue/Agency Property to Developer on or before the Escrow Closing Date shall be subject to the satisfaction of the following conditions precedent, which can only be waived in writing by the Agency:
(1) Developer has deposited the Agency Purchase
Price into Escrow;
(2) Developer agrees to accept the title to and
conveyance of the City/Agency Properties, pursuant to Section 2.4; (3) Developer delivers its Due Diligence
Investigation Conclusion Notice to the City, the Agency and Escrow Holder indicating Developer’s unconditional acceptance of the physical condition of the City/Agency Properties, prior to the expiration of the Due Diligence Period; (4) The Title Company is unconditionally
committed to issue the Title Policy for the City/Agency Properties, subject to any Permitted Exceptions, to Developer;
(5) Developer has completed all of its material
obligations required by this Agreement to be completed prior to the Close of Escrow; (6) The representations, warranties and covenants of
Developer set forth in Section 1.2.3 are true and correct in all material respects on the Effective Date and on the Escrow Closing Date; and
(7) Developer deposits the funds and items into the
Escrow required by Section 3.3 for the Escrow.
3.3 Developer’s Escrow Deposits . Following satisfaction or waiver of each of Developer ’s conditions to Close of Escrow set forth in Sections 3.2.1, as applicable, Developer shall deposit the following funds and documents into Escrow at least one (1) business day prior to the Escrow Closing Date in a writing delivered to the Parties:
3.3.1 P
urchase Price and Other Funds. Purchase Price,
less the amount of the Earnest Money Deposit, plus any additional funds required to be deposited into Escrow by Developer under the terms of this Agreement to close the Escrow, all in immediately available funds.
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3.3.2 PCO Report . A PCO Report executed by the
authorized representative(s) of Developer.
3.3.3 R estrictive Covenant . The Restrictive Covenant executed by the authorized representative of Developer in recordable form.
3.3.4 Po st-Closing Agreement(s) . If, as of Close of
Escrow, the Vacated Portion of Ellis Place is not in a condition to be conveyed to Developer because the Ellis Place Vacation has not been completed, then the Post - Closing Agreement executed by the authorized representative of Developer, memorializing the City’s contractual obligation to complete the Ellis Place Vacation process in accordance with law and, if approved by Resolution of Vacation, City and Developer execute and record an instrument conveying the Vacated Portion of Ellis Place to Developer. If, as of Close of Escrow, City has not obtained consents, if necessary pursuant to the CC&Rs, for the grant of the Developer Easements and use of the Developer Easement Areas, then the Post-Closing Agreement executed by the authorized representative of Developer, memorializing the City’s contractual obligation to obtain consents, if necessary pursuant to the CC&Rs, for the grant of the D eveloper Easements and use of the Developer Easement Areas, and once obtained, to execute and record the CC&Rs Amendment.
3.4 C
ity’s Escrow Deposits . Following satisfaction or waiver of each of the City’ s conditions to Close of Escrow set forth in Sections 3.2.2, as applicable, the City shall deposit the following documents into Escrow at least two (2) business days prior to the Escrow Closing Date:
3.4.1 G rant Deed . The Grant Deed for the Triangle
Lot/City Property executed by the authorized representative(s) of t he City in recordable form. If, prior to Closing, the Ellis Place Vacation has been completed and a Resolution of Vacation has been adopted, then then the Grant Deed may include the Vacated Portion of Ellis Place, but if the Ellis Place Vacation has not b een completed by adoption of a Resolution of Vacation, then a Post -Closing Agreement shall be executed and deposited pursuant to this Section 3.4; similarly, if City has obtained any consents, if necessary pursuant to the CC&Rs, by the Close of Escrow, then the Grant Deed may include the Developer Easements and use of the Developer Easement Areas, but if the Developer Easements and use of the Developer Easement Areas are not included in the Grant Deed, then a Post -Closing Agreement shall be executed and deposited pursuant to this Section 3.4.
3.4.2 F
IRPTA Affidavit . The FIRPTA Affidavit
completed and executed by the authorized representative(s) of the City.
3.4.3 R estrictive Covenant . The Restrictive Covenant executed by the authorized representative(s) of the City in recordable form.
3.4.4 P ipelines Easement Quitclaim. If the Pipelines Easement Quitclaim has not previously been executed and recorded prior to the Close
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of Escrow, the Pipelines Easement Quitclaim executed by the authorized representative(s) of the parties thereto in recordable form.
3.4.5 Post-Closing Agreement(s ). If, as of Close of
Escrow, the Vacated Portion of Ellis Place is not in a condition to be conveyed to Developer because the Ellis Place Vacation has not been completed, then the Post- Closing Agreement executed by the authorized representative of City and Agency , memorializing the City’s contractual obligation to complete the Ellis Place Vacation process in accordance with law and, if approved by Resolution of Vacation, City and Developer execute and record an instrument conveying the Vacated Portion of Ellis Place to Developer. If, as of Close of Escrow, City has not obtained any consents, if necessary pursuant to the CC&Rs, for the grant of the Developer Easements and use of the Developer Easement Areas, then the Post-Closing Agreement executed by the authorized representative of City and Agency, memorializing the City’s contractual obligation to obtained any consents, if necessary pursuant to the CC&Rs, for the grant of the Developer Easements and use of the Developer Easement Areas, and once obtained, to execute and record the CC&Rs Amendment.
3.5 A
gency’s Escrow Deposits . Following satisfaction or waiver of each of the Agency’s conditions to Close of Escrow set forth in Sections 3.2.3, as applicable, the Agency shall deposit the following documents into Escrow at least two (2) business days prior to the Escrow Closing Date:
3.5.1 G rant Deed . The Grant Deed for the Pomona
Avenue/Agency Property executed by the authorized representative(s) of the Agency in recordable form.
3.5.2 F IRPTA Affidavit . The FIRPTA Affidavit
completed and executed by the authorized representative(s) of the Agency.
3.5.3 R estrictive Covenant . T he Restrictive Covenant executed by the authorized representative(s) of the Agency in recordable form.
3.6 C losing Procedure. When each of Developer ’s Escrow required deposits, as set forth in Section 3.3, and each of the City’ s Escrow required deposits, as s et forth in Section 3.4, and each of the Agency’s Escrow required deposits, as set forth in Section 3.5, are deposited into Escrow, Escrow Holder shall request confirmation in writing from the City, Agency and Developer that each of their respective conditions to the Close of Escrow, as set forth in Section 3.2, are satisfied or waived. Upon Escrow Holder’s receipt of written confirmation from the City, Agency, and Developer that each of their respective conditions to the Close of Escrow a re either satisfied or waived, Escrow Holder shall close the Escrow for the City/Agency Properties by doing all of the following:
3.6.1 R
ecordation of Documents . File the following
with the Office of the Recorder of the County, for recordation in the order set forth in Section 3.8: (i) if applicable, the Pipelines Easement Quitclaim, (ii) the Grant Deeds, (iii) the Restrictive Covenant, and (iv) any applicable Deed of Trust.
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3.6.2 Distribution of Recorded Documents. Distribute
each recorded document to the Party or person designated for such distribution in Section 3.8.
3.6.3 P CO Report. File the PCO Report with the Office of the Recorder of the County.
3.6.4 F IRPTA Affidavit . File the FIRPTA Affidavit
with the United States Internal Revenue Service.
3.6.5 T itle Policy. Obtain and deliver the Title Policy to Developer.
3.6.6 P urchase Price. Deliver the Purchase Price to the City and Agency, less the City and Agency’s share of Escrow closing costs, and less any other charges to the account of the City or the Agency, and return any remaining funds held by Escrow Holder for the account of Developer to Developer, less Developer’s share of Escrow closing costs in accordance herewith, and less any other charges to the account of Developer in accordance herewith.
3.7 C
lose of Escrow . Close of Escrow shall occur no later than the later of: (i) the fifth (5th) business day following Escrow Holder ’s receipt of written confirmation from the City, Agency and Developer of the satisfaction or waiver of all conditions precedent to the Close of Escrow for the Properties, or (ii) December 16, 2022 (the “Escrow Closing Date”). In no event, however, shall the Escrow Closing Date exceed the date of December 16, 2022 (“Outside/Not to Exceed Escrow Closing Date”) unless a short extension thereof, not to exceed fourteen (14) calendar days, is mutually agreed upon by the Parties and delivered to Escrow Holder prior to the Outside/Not to Exceed Escrow Closing Date . If for any reason the Close of Escrow has not occurred by the Escrow Closing Date, then any Party not then in default of this Agreement may cancel the Escrow and terminate this Agreement, subject to the notice and cure provisions of Section 7.1 (to the extent applicable), without liability to any other Party or any other person for such termin ation and cancellation, by delivering written notice of termination to the other Party(ies) and Escrow Holder and, thereafter, the Parties shall proceed pursuant to Section 3.11 if the non-terminating Party is not in default or pursuant to Section 7.2 or 7.3 (as applicable), and all other applicable provisions in this Agreement, if the non-terminating Party is in default. Without limiting the right of any Party to terminate this Agreement, pursuant to the preceding sentence, if Escrow does not close on or before the Escrow Closing Date, and no Party has exercised its contractual right to cancel Escrow and terminate this Agreement before such time, then Escrow shall close as soon as reasonably possible following the first date on which Escrow Holder is in a position to close the Escrow pursuant to the terms and conditions of this Agreement.
3.8 R
ecordation and Distribution of Documents . As applicable, Escrow Holder shall cause the following documents to be recorded in the official records of the Recorder of the County in the following order of priority at the Close of Escrow: (i) If the Pipelines Easement Quitclaim has not previously been executed and recorded for the benefit of the City prior to the Close of Escrow, the Pipelines Easement Quitclaim; (ii) the Grant Deed, conveying the Triangle Lot/ City Property from the City to Developer; (iii) the Grant Deed conveying the Pomona Avenue/Agency
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Property from the Agency to Developer; (iv) the Restrictive Covenant, (v) the Vacated Portion of Ellis Place Grant Deed (unless the Vacated Portion of Ellis Place Post- Closing Agreement has been entered into), (vi) the CC&Rs Amendment and the Developer Easement s Grant (unless the Developer Easement s Post- Closing Agreement has been entered into), in that order, (vii) an y applicable Deed of Trust, and (viii) any other documents to be recorded through Escrow upon the joint instructions of the Parties. All recorded documents shall provide that they are to be returned to Escrow Holder after recordation. When originals of such recorded documents are returned to Escrow Holder, Escrow Holder shall deliver: (i) the original Grant Deed conveying the Triangle Lot/City Property to Developer, and copies to the City, each showing all recording information, (ii) the original Grant Deed conveying the Pomona Avenue/Agency Property to Developer, and copies to the Agency, each showing all recording information; (iii) the original of the Restrictive Covenant to the City, with copies to Developer, each showing all recording information, (iv) unless the Vacated Portion of Ellis Place Post- Closing Agreement has been entered into , the Vacated Portion of Ellis Place Grant Deed conveying the Vacated Portion of Ellis Place to Developer, and copies to the City , each showing all recording information; (v) unless the Developer Easement s Post-Closing Agreement has been entered into, the Developer Easement s Grant granting the Developer Easement s to Developer, and copies to the City, each showing all recording information; (v) any applicable Deed of Trust to the Lender thereunder, with copies to Developer and the City, each showing all recording information, (v i) the original of the Pipelines Easement Quitclaim to the City, with copies to Developer, each showing all recording information, (vii) if applicable, the Post-Closing Agreements to Developer and City, and (vii) the original of any other document recorded at the close of Escrow to the Party or other person designated in the joint escrow instructions of the Parties for such recordation and a copy of each such document to the other Party or Parties, each showing all recording information.
3.9 Escrow Closing Costs, Taxes and Title Policy Premium . The City and Developer shall each pay one-half (1/2) of the Escrow fees and such other costs as Escrow Holder may charge for the conduct of the Escrow. Escrow Holder shall notify the Parties of the costs to be borne by each of them at the Close of Escrow by delivering the Escrow Holder ’s estimated closing/settlement statement to the Parties at least four (4) business days prior to the Escrow Closing Date. Developer shall pay the premium charged by the Title Company for the standard Title Policy for the Triangle Lot/City Property, including any endorsements or other supplements to the coverage of such Title Policy that may be requested by Developer, as well as documentary transfer taxes and any and all other charges, fees and taxes levied by a Governmental Authority relative to the conveyance of any portion of the Triangle Lot/City Property through the Escrow transaction contemplated in this Agreement. Developer also shall pay the premium charged by the Title Company for the standard Title Policy for the Pomona Avenue/Agency Property, including any endorsements or other supplements to the coverage of such Title Policy that may be requested by Developer, as well as documentary transfer taxes and any and all other charges, fees and taxes levied by a Governmental Authority relative to the conveyance of any portion of the Pomona Avenue/Agency Property through the Escrow transaction contemplated in this Agreement.
Developer shall pay any and all recording fees relative to the conveyance of any portion of the City/Agency Properties through the Escrow transaction contemplated in this Agreement.
3.10 E
scrow Cancellation Charges . If the Escrow fails to close due to the City ’s material default under this Agreement and the Escrow is cancelled and this Agreement is terminated, the City shall pay all ordinary and reasonable Escrow and title order cancellation
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charges. If the Escrow fails to close due to the Agency’ s material default under this Agreement and the Escrow is cancelled and this Agreement is terminated, the Agency shall pay all ordinary and reasonable Escrow and title order cancellation charges. If the Escrow fails to close due to Developer’s material default under this Agreement and the Escrow is cancelled and this Agreement is terminated, Developer shall pay all ordinary and reasonable Escrow and title order cancellation charges. If the Escrow fails to close for any reason other than the material default of either Developer, the Agency or the City and the Escrow is cancelled and this Agreement is terminated, the City and Developer shall each pay one-half (1/2) of any ordinary and reasonable Escrow and title order cancellation charges.
3.11 Escrow Cancellation. If this Agreement is terminated and the Escrow cancelled pursuant to a contractual right granted to a Party in this Agreement to terminate this Agreement and cancel the Escrow, other than due to the material default of another Party, the Parties shall do each of the following:
3.11.1 C
ancellation Instructions . The Parties shall,
within three (3) business days of receipt of Escrow Holder’s written request, execute any reasonable Escrow cancellation instructions requested by Escrow Holder;
3.11.2 R eturn of Funds and Documents . Within ten
(10) days of receipt by the Parties of a settlement statement of Escrow and title order cancellation charges from Escrow Holde r: (i) Developer or Escrow Holder shall return to the City and Agency any documents previously delivered by the City or Agency to Developer or Escrow Holder, (ii) the City or Escrow Holder shall return to Developer all documents previously delivered by Developer to the City or Escrow Holder; (iii) the Agency or Escrow Holder shall return to Developer any documents previously delivered by Developer to the Agency or Escrow Holder, (iv) Escrow Holder shall return to Developer any funds deposited by Developer into Escrow, including the Earnest Money Deposit unless the Earnest Money Deposit has become nonrefundable pursuant to Section 2.3, less Developer ’s share of customary and reasonable Escrow and title order cancellation charges, if any; (v) Escrow Holder shall return to the City any funds deposited by City into Escrow if it has already been deposited, less the City’ s share of customary and reasonable Escrow and title order cancellation charges, if any, plus the Earnest Money Deposit to the City, if the Earnest Money Deposit has become nonrefundable pursuant to Section 2.3, and (vi) Escrow Holder shall return to the Agency any funds deposited by Agency into Escrow if it has already been deposited, less the Agency ’s share of customary and reasonable Escrow and title order cancellation charges, if any.
3.12 R
eport to IRS . Following the Close of Escrow and prior to the last date on which such report is required to be filed with the Internal Revenue Service, if such report is required pursuant to Section 6045(e) of the Internal Revenue Code, Escrow Holder shall report the gross proceeds of the purchase and sale of the City/Agency Properties to the Internal Revenue Service on Form 1099-B, W-9 or such other form(s) as may be specified by the Internal Revenue Service pursuant to Section 6045(e). Upon the filing of such reporting form with the Internal Revenue Service, Escrow Holder shall deliver a copy of the filed form to the City, the Agency and Developer.
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ARTICLE IV
PROJECT DEVELOPMENT
4.1 Developer Covenant to Undertake Project. Developer shall commence and complete the development of the Project on the Properties within the time period for such actions set forth in the Schedule of Performance. Developer covenants and agrees that the Properties shall be improved and developed with the Project in substantial conformity with the terms and conditions of this Agreement, the Scope of Development, the Schedule of Performance, all Governmental Requirements and any and all plans, specifications and similar development documents required by this Agreement, except for such changes as may be mutually agreed upon in writing by and among the Parties, and all applicable laws, regulations, orders and conditions of each Governmental Agency with jurisdiction over the Properties or the Project. The covenants of this Section 4.1 shall run with the land for the Developer Property and Triangle Lot/City Property pursuant to the Restrictive Covenant applicable thereto until the date of recordation of the Certificate of Completion for the Commercial Component Project.
4.2 D
eveloper Changes to Plans and Specifications During Course of Construction.
4.2.1 Developer shall have the right during the course of construction of the Project to make “ minor field changes ,” without seeking the approval of the City.
4.2.2 “Minor field changes ” shall be defined as:
(a) changes from the approved Plans and Specifications that have no substantial effect on the Project , including by way of example and not by way of limitation, modification of tenant spaces and interior design; or (b) changes from the approved Plans and Specifications that that are consistent with then -applicable City Requirements or state or federal law.
4.2.3 Developer shall submit all other changes, i.e., those changes which are not “minor field changes”, to the City for its review and approval no less than fifteen (15) days prior to the date that Developer intends to implement such changes. The City shall have ten (10) days from its receipt of such proposed changes to review the same and advise Developer in writing whether such changes are acceptable to the City in its reasonable discretion. Any proposed changes which are not disapproved by the City within such ten (10) day period shall be deemed approved. Nothing contained in this Section 4.2 shall be deemed to constitute a waiver of or change in the City Requirements governing “ minor field changes” or other changes or in any approvals by the City otherwise required for “ minor field changes.” or other changes.
4.2.4 Completion of Project . Subject to Unavoidable
Delays, Developer shall commence construction of the Project in accordance with the Schedule of Performance and, thereafter, shall diligently proceed to complete the construction of the Project in
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a good and workmanlike manner in substantial conformity with the approved plans, specifications, and conditions for the Project approved by the City and the Schedule of Performance.
4.2.5 Subject to Unavoidable Delays, Developer shall
request a Certificate of Completion for the Project on or before the Proje ct Completion Date.
Subject to Unavoidable Delays, Developer will, promptly upon completion of construction of the Project, cause the Project to be inspected by each Governmental Agency with jurisdiction over the Project, shall correct any defects and def iciencies that may be disclosed by any such inspection and shall cause to be duly issued all occupancy certificates and other licenses, permits and authorizations necessary for the operation and occupancy of the completed Project. Developer shall do and perform all of the foregoing acts and things and cause to be issued and executed all such occupancy certificates, licenses, and authorizations for the Project on or before the date set forth therefor in the Schedule of Performance as the completion date for the Project, subject to Unavoidable Delays,.
4.2.6 After commencement of the work of improvement
of the Project, Developer shall not permit the work of improvement of the Project to cease or be suspended for an unreasonable period of consecutive calendar days, subject to Unavoidable Delays. For purposes of this section 4.3.3, “unreasonable period of time” shall be calculated based on the nature of the delay, but in general shall not exceed ninety (90) consecutive calendar days for Commercial Component Project, once commenced, and shall not exceed ninety (90) consecutive calendar days for the Parking Area Component Project, once commenced.
4.3 The City Manager on behalf of the City and the Agency may extend Project Completion Date up to a cumulative amount of 365 days for the Commercial Component Project and Parking Area Component Project from the deadlines set forth in the Schedule of Performance, in addition to the days allowable pursuant to Section 4.5 and Section 8.7.3 of this Agreeme nt.
After the expiration of the extensions of time authorized in this Section 4.3 and Section 4.5, the City Manager may require Developer to submit for reporting to the City Council any and all reasons for the delay causing the need for the exhaustion of the extension periods authorized herein, and Developer’s immediate remedial plans and actions to continue to the Project to completion.
4.4 Compliance with Laws. All work performed in connection with the development of the Project shall comply with all Governmental Requirements.
4.5 S chedule of Performance. The Schedule of Performance establishes various dates and times for the accomplishment of various tasks assigned to the City and Developer and the satisfaction of the conditions precedent to the close of the E scrow. The Parties agree that time is of the essence in the performance of such tasks and the satisfaction of conditions precedent, in view of the large investment of resources that all Parties recognize will be required for assembly of the Properties and the undertaking of the Project. If the date or time for the performance of a task or the satisfaction of a condition, as set forth in either the text of this Agreement or in the Schedule of Performance, may not be achieved, then prior to such date or time set forth in the text of this Agreement or the Schedule of Performance, the Parties shall consider whether a modification to the text of this Agreement or to the Schedule of Performance is indicated. Any decision to approve a modification to a time or date established in either the text of this Agreement
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or the Schedule of Performance shall be subject to the sole discretion of each Party. Any modification of a time or date for performance of a particular task or satisfaction of a particular condition that does not result in a change of more than three hundred sixty five (365) days may be approved on behalf of the City and the Agency by the City Manager, in his or her reasonable discretion. A modification of a time or date for performance of a task or satisfaction of a condition (or a series of such modifications) that results in an aggregate change of more than three hundred sixty five (365) days may be subject to the approval of the City Council if the City Manager determines it is in the City’s interest to have the City Council consider the delays causing the need to use the extensions . If performance of a task or satisfaction of a condition in the Schedule Performance is prevented or delayed by Unavoidable Delays, the deadline for completion of such task or satisfaction of such condition shall be extended by the period of such Unavoidable Delays.
4.6 Developer Attendance at City Meetings. Developer agrees to have one or more of its employees or consultants who are knowledgeable regarding this Agreement and the development of the Project, such that such person(s) can meaningfully respond to City questions regarding the progress of the Project, attend City Council meetings, when requested to do so by written notice from City staff.
4.7 C
ity’s Right to Inspect Pro ject and Properties. Officers, employees, agents and representatives of the City shall have the right of reasonable access to the Properties, without the payment of charges or fees, during normal construction hours, during the period of construction of the Project. Such officers, employees, agents or representatives of the City shall be those persons who are designated by the City Manager. Any and all officers, employees, agents or representatives of the City who enter the Properties shall identify themselves at the construction management office on the Properties, upon their entrance on to the Properties, and shall at all times be accompanied by a representative of Developer and comply with all posted safety regulations , while on the Properties. Developer shall make a repr esentative of Developer available for this purpose at all times during normal construction hours, upon reasonable notice from the City. The City shall indemnify and hold Developer harmless from injury, property damage or liability arising out of the exercise by the City of the right of access to the Properties provided in this Section 4.5, other than injury, property damage or liability arising from the gross negligence or willful misconduct of Developer or its officers, agents or employees. The City shal l inspect relevant portions of the Properties, prior to issuing any written statements reflecting adversely on Developer’s compliance with the terms and conditions of this Agreement pertaining to development of the Project. If in the City’s reasonable judgment it is necessary, the City shall have the further right, from time to time, to retain a consultant or consultants to inspect the Project and verify compliance by Developer with the provisions of this Agreement. Developer acknowledges and agrees that any such inspections are for the sole purpose of protecting the City’s rights under this Agreement, are made solely for the City’s benefit, that the inspections may be general in nature, and are for the purposes of informing the City of the progress of the Project and the conformity of the Project with the terms and conditions of this Agreement, and that Developer shall not be entitled to rely on any such inspection(s) as constituting an approval, satisfaction or acceptance of any materials, workmanship, conformity of the Project with this Agreement or otherwise. Developer also agrees to promptly notify the City in writing should Developer’s inspections show any matters that will prevent the entire Project from being completed by the Project Completion Date set forth in the Schedule of Performance or such later date that Developer
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previously notified the City of as the expected completion date of the Project . Without limiting the foregoing, Developer shall permit the City upon reasonable notice to examine and copy all books and account records and other papers relating to the Properties and the construction of the Project. Developer will use commercially reasonable efforts to cause all contractors, subcontractors and materialmen to cooperate with the City to enable such examination.
4.8 Cost of Construction. The cost and expense of undertaking and completing the Project, including, without limitation, constructing all legally imposed on -site and off -site improvements, and providing all utilities therefor, shall be borne by Developer at its sole cost, expense and liability. Developer shall be solely responsible for payment of all City land use, construction, inspection, plan check and development impact fees (collectively, “ Development Fees”) imposed by the City with respect to the development of the Project. Developer shall bear all costs and expenses associated with the processing and obtaining of the E ntitlements and shall bear all costs and expenses (except to the extent expressly set forth otherwise in this Agreement), associated with any and all terms, conditions, requirements, mitigation measures and other exactions imposed on, or required in connection with, the Entitlements.
4.9 P
revailing Wages .
4.9.1 Developer acknowledges that the City and the
Agency have not made any representation, express or implied, to Developer or any person associated with Developer regarding whether or not laborers employed relative to the construction of the Project must be paid the prevailing per diem wage rate for their labor classific ation, as determined by the State of California, pursuant to Labor Code Sections 1720, et seq. Developer agrees with the City and Agency that Developer shall assume the responsibility and be solely responsible for determining whether or not laborers employed relative to the construction of the Project must be paid the prevailing per diem wage rate for their labor classification.
Additionally, in accordance with Section 7.7, Developer shall indemnify, defend with counsel acceptable to the City and Agency and hold the City and Agency harmless against any claims pursuant to Labor Code Sections 1726 and 1781 arising from this Agreement or the construction or operation of the Project.
4.10 Certificate of Completion.
4.10.1 Following the substantial completion of
construction of all phases of the Project, and within fifteen (15) days after written request from Developer for issuance of a Certificate of Completion for the Project, the City shall inspect the Project to determine whether or not the Project has been substantially completed in compliance with this Agreement. Upon written request from Developer, a Certificate of Completion for the Commercial Component Project may be issued separately from a Certificate of Completion from the Parking Area Component Project, and vice versa. If the City determines that the Project (or component project as described in the preceding sentence) is complete and in compliance with this Agreement, the City Manager shall furnish Developer with a Certificate of Completion for the Project. If the City determines that the Project (or component project as described in this paragraph) is not in compliance with this
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Agreement, the City Manager shall send written notice of each non- conformity to Developer within fifteen (15) days of such determination.
4.10.2 Upon Developer ’s substantial completion of the
Project (or component project as described in Section 4.10.1 above), Developer shall request and be entitled to receive a Certificate of Completion, including the right of the City Manager to issue the Certificate of Completion . T he Certificate of Completion, upon issuance, shall be evidence of the City’s conclusive determination of satisfactory substantial completion of the entirety of the Project (or component project as described in this paragraph) pursuant to the terms of this Agreement.
4.10.3 The City shall not unreasonably withhold the
issuance of a Certificate of Completion. A Certificate of Completion shall conclusive evidence the City ’s determination of satisfactory comple tion of the Project (or component project to which it pertains pursuant to the terms of this Agreement. After the recordation of a Certificate of Completion for the Project (or component project), any person then owning or thereafter purchasing, financing, leasing or otherwise acquiring any interest in the Properties (or portions thereof) improved with the Project shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement regarding constructi on or installation of the Project except that such person shall be bound by any reservations, covenants, conditions, restrictions and other interests recorded against the Properties pursuant to this Agreement and the Grant Deeds.
4.10.4 If the City fails or refus es to issue a Certificate of Completion following written request from Developer, the City shall, within fifteen (15) calendar days of Developer ’s written request or within five (5) calendar days after the next regular meeting of the City Council, whicheve r date occurs later, provide Developer with a written statement setting forth the reasons for the City ’s failure or refusal to issue a Certificate of Completion. The statement shall also contain the City’s opinion of the action(s) Developer must take to obtain a Certificate of Completion from the City. If the reason for Developer ’s failure to complete the Project is confined to the immediate unavailability of specific items or materials for construction or landscaping at a price reasonably acceptable to D eveloper or other minor building “punch-list” items with an estimated completion cost that does not exceed one hundred thousand dollars ($100,000) , then the City s hall issue its Certificate of Completion upon Developer providing a bond equal to such estimated completion cost . If the City fails to provide such written statement within the specified time period, then Developer shall be deemed conclusively and without further action of the City to have satisfied the requirements of this Agreement with respect to the Project, as if a Certificate of Completion had been issued by the City pursuant to this Agreement.
4.10.5 A Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of a Deed of Trust securing a Loan to finance the Project, or any parts thereof (other than the obligation thereunder to obtain such Certificate of Completion) . A
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Certificate of Completion shall not be deemed to constitute a notice of completion under Section 3093 of the California Civil Code, nor shall it act to terminate the continuing covenants, restrictions or conditions or any other instruments recorded against the Properties pursuant to this Agreement. A Certificate of Completion is not evidence of the compliance of the Project with any City Requirements or any building code, conditions of approval, land use, zoning or other requirements of the City or any Governmental Agency with jurisdiction over the Properties, other than the City.
4.11 Coordination for Bus Shelter. Developer and City shall use best efforts and work in good faith to coordinate the future planning of construction and funding for a bus shelter located on Harbor Boulevard, immediately north of the drainage channel on the northern boundary of the Triangle Lot/City Property. City and Developer shall coordinate during the time frame for the submission of construction drawing by Developer to City for plan check as set forth in the Schedule of Performance, with such coordination to include the plans and fundings provisions for the bus shelter, as described in this Section 4.11.
ARTICLE V
DEVELOPER COVENANTS
5.1 Covenant to Maintain City/Agency Properties on Tax Rolls . Developer for itself, its successors and assigns to all or any part or portion of the City/A gency Properties covenants and agrees for the benefit of the City that:
5.1.1 The entire City/Agency Properties shall remain on the County secured real property tax rolls for no less than twenty (20) years from the date of issuance of the last certificate of occupancy for the Project.
5.1.2 Developer shall pay , or cause any assignee or
transferee of a Permitted Transfer (including but not limited to a lessee or sublessee) all property tax bills with respect to the City/Agency Properties and all improvements thereon on or before the last day for the timely payment of each property tax installment during such time period and to timely pay all supplemental tax bills regarding the City/Agency Properties issued by the County.
5.1.3 Upon the conveyance of the Vacated Portion of Ellis Place and conveyance of the Developer Easements, the covenants of this Section 5.1 shall apply to those property interests as well. The covenants of this Section 5.1 shall run with the land of the City/Agency Properties, and shall be enforceable against Developer and its successors and assigns.
5.2 No Conveyance to Tax Exempt Entity. Developer for itself, its successors and assigns to all or any part or portion of the City/Agency Properties, covenants and agrees that:
5.2.1 Developer shall not use or otherwise sell, transfer, convey, assign, lease, leaseback or hypothecate the City/Agency Properties or any portion of any of the foregoing to any entity or person, or for any u se of the City/Agency Properties, or any portion of any of the foregoing, that is partially or
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wholly exempt from the payment of real or personal property taxes or that would cause the exemption of the payment of all or any portion of real or personal property taxes otherwise assessable regarding the City/Agency Properties, or any portion of any of the foregoing, without the prior written consent of the City, which may be withheld in the City ’s reasonable discretion for a period of ten (1 0) years from the date of issuance of the last Certificate of Completion for the Project by the City.
5.2.2 If the City/Agency Properties, or any portion of the City/Agency Properties, shall be conveyed, transferred or sold to any entity or person that is partially or wholly exempt from the payment of real or personal property taxes otherwise assessable against the City/Agency Properties, or any portion thereof, without the prior written consent of the City in violation of Section 5.1, then, at the City’s election and in addition to all other remedies available to the City under this Agreement or at law or in equity, Developer shall pay to the City a fee in lieu of payment of such taxes each year in an amount determined by the City to be one percent (1%) of the “full cash value ” of the City/Agency Properties, or portion thereof, as may be subject to such exemption from payment of real or personal property taxes. The City ’s determination of “ full cash value ” for in-lieu payment purposes under this Section 5.2.2 shall be established by the City each year, if necessary, by reference to the real or personal property tax valuation assessed in the year prior to such conveyance . If the City determines that an amount is payable as an in-lieu payment under this Section 5.2.2 in any tax year, then such amount shall be paid to the City for that tax year within forty- five (45) days following transmittal by the City to Developer of an invoice for payment of the in-lieu amount.
5.2.3 Upon the conveyance of the Vacated Portion of Ellis Place and conveyance of the Developer Easements, the covenants of this Section 5.2 shall apply to those property interests as well. The covenants of this Section 5.2 shall run with the land of the City/Agency Properties, and shall be enforceable against Developer and its successors and assigns.
5.3 Maintenance Condition of the Properties . Developer for itself, its successors and assigns to all or any part or portion of the Properties and/or Project, covenants and agrees that:
5.3.1 The areas of the Properties that are subject to public view (including all existing and future improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. If there is an occurrence of an adverse condition on any area of the Properties that is subject to public view in contravention of the general maintenance standard described above (a “Maintenance Deficiency”), then the City shall notify Developer in writing of the Maintenance Deficiency. If Developer fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) days of its receipt of notice of the Maintenance Deficiency, the City shall have the right to enter the Properties and perform all acts necessary to cure the Maintenance Deficiency, or to take any other action at law or in equity that may then be available to the City to accomplish the abatement of the Maintenance Deficiency.
Any sum expended by the City for the abatement of a Maintenance Deficiency on the Properties pursuant to this Section 5.3.1 shall become a lien on the Properties, as applicable. If the amount
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of the lien is not paid within thirty (30) days after written demand for payment from the City to Developer, the City shall have the right to enforce the lien in the manner provided in Section 5.3.3. (1) Any and all rights and obligations relating to the abandonment, re - abandonment, use, re -use, maintenance, repair, remediation, or response to any Environmental Matters relating to or extenuating from the Pipelines Easement shall be the rights and obligations of Developer upon Close of Escrow. (2) Developer shall indemnify the City and Agency for any Environmental Claims relating to the Pipelines Easement pursuant to Section 5.9 of this Agreement.
5.3.2 Graffiti, as this term is defined in Government Code Section 38772, that has been applied to any exterior surface of a structure or improvement on the Properties that is visible from any public right -of-way adjacent or contiguous to the Properties, shall be removed by Developer by either painting over the evidence of such vandalism with a paint that has been color-matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate. If any such graffiti is not removed within ninety- six (96) hours following the time of the discovery of the graffiti, the C ity shall have the right to enter the Properties and remove the graffiti, without notice to Developer. Any sum reasonably expended by the City for the removal of graffiti from the Properties pursuant to this Section 5.3.2, shall be a lien on the Properties. If the amount of the lien is not paid within thirty (30) days after written demand to Developer from the City, the City shall have the right to enforce its lien in the manner provided in Section 5.3.3.
5.3.3 The Parties further mutually understand and agree that the rights conferred upon the City under this Section 5.3 expressly include a grant by Developer of a security interest in the Properties with the power to establish and enforce a lien or other encumbrance against the Properties or any portion thereof, in the manner provided under Civil Code Sections 2924, 2924b and 2924c, to secure the obligations of Developer and it s successors under Section 5.3.1 or Section 5.3.2, including the reasonable attorneys’ fees and costs of the City associated with the abatement of a Maintenance Deficiency or removal of graffiti. For the purposes of the preceding sentence the words “reasonable attorneys’ fees and costs of the City” mean and include the salaries, benefits and costs of the City Attorney and the lawyers employed in the Office of the City Attorney.
5.3.4 Upon the conveyance of the Vacated Portion of Ellis Place and conveyance of the Developer Easements, the covenants of this Section 5.3 shall apply to those property interests as well. The provisions of this Section 5.3 shall be a covenant running with the land of the Properties, and shall be enforceable against Developer and its successors and assigns. Nothing in the foregoing provisions of this Section 5.3 shall be deemed to preclude Developer from making any alteration, addition, or other change to any structure or improvement or landscaping on the Properties, provided that any such changes comply with applicable City Requirements.
5.4 Obligation to Refrain from Discrimination . Developer for itself, its successors and assigns to all or any part or portion of the Properties and/or Project, covenants and agrees that:
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5.4.1 There shall be no discrimination against or
segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin, ancestry , or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Properties nor shall Developer, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Properties.
5.4.2 Upon the conveyance of the Vacated Portion of Ellis Place and conveyance of the Developer Easements, the covenants of this Section 5.4 shall apply to those property interests as well. The covenant of this Section 5.4 shall run with the land of the Properties in perpetuity, and shall be enforceable against Developer and its successors and assigns.
5.5 Form of Non -Discrimination and Non- Segregation Clauses . Developer for itself, its successors and assigns to all or any part or portion of the Properties and/or Project, covenants and agrees that:
5.5.1 Developer, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Properties (or any portion thereof) on the basis of sex, marital status, race, color, religion, creed, national origin, ancestry , or any other protected class as established by federal, state, or local law, of any person. All deeds, leases or contracts pertaining to the Properties shall contain or be subject to substantially the following non- discrimination or non- segregation covenants:
(1) In deeds: “The grantee herein covenants by and
for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub- tenants, sub- lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”
(2) In leases: “The Lessee herein covenants by and
for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, ancestry , or any other protected class as established by federal, state, or local law, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or
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segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub-lessee, sub-tenants, or vendees in the premises herein leased.” (3) In contracts: “There shall be no discrimination
against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub- lessees, sub- tenants, or vendees of the premises herein transferred.” The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument.
5.5.2 Upon the conveyance of the Vacated Portion of Ellis Place and conveyance of the Developer Easements, the covenants of this Section 5.5 shall apply to those property interests as well. The covenant of this Section 5.5 shall run with the land of the Properties in perpetuity, and shall be enforceable against Developer and its successors and assigns.
5.6 Prohibited Uses.
5.6.1 Developer for itself, its successors and assigns to all or any part or portion of the Properties and/or Project, covenants and agrees that at no time shall the following uses be permitted on the Property or as part of the Project:
(1) Any and all “adult businesses” as defined in
Fullerton Municipal Code Section 7.95.010 or any other development or use requiring or subject to the Adult Use Development Permit set forth in Chapter 7.95 (or successor provisions) in the Fullerton Municipal Code; and
(2) Any and all schools, whether public or private ,
and including trade and vocational schools.
5.6.2 Upon the conveyance of the Vacated Portion of Ellis Place and conveyance of the Developer Easements, the covenants of t his Section 5.6 shall apply to those property interests as well. The covenant of this Section 5.6 shall run with the land of the Properties in perpetuity, and shall be enforceable against Developer and its successors and assigns.
5.7 Survival of Special Development Covenants . All of the covenants set forth in ARTICLE V, inclusive, shall be a covenant running with the land of the Properties and each such special development covenant shall survive the Close of Escrow, execution and recordation of the Grant Deeds, and issuance and recordation of any Certificate of Completion for the time period specifically set forth in each such special development covenant. The Parties acknowledge that although the special development covenants apply to the entirety of the City/Agency Properties, portions of the Project and the City/Agency Properties may, in accordance with the Permitted Transfer requirements, be sold or otherwise transferred to various successors and assigns of Developer. Accordingly, the City agrees that with respect to enforcement of any of the special
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development covenants, it is understood and agreed that, in the event of a breach of any of the special development covenants, the City will seek to enforce those covenants only against the then- current owner(s) of that portion of the Properties which is not in compliance with any one or more the special development covenants. No owner of any portion of the City/Agency Properties which is in compliance with the special development covenants shall be liable for the breach of any of the special development covenants by any other owner of any other portion of the Properties; provided, however, that the foregoing shall not preclude City from seeking damages against any prior owner of any portion of the Properties if, during the tenure of such owner ’s ownership, the City incurred costs reimbursable under the above provisions.
5.8 Developer Covenant to Defend this Agreement . Developer acknowledges that the City is a “ public entity ” and/or “ public agency ,” and Agency is a “public entity” and/or “public agency” as defined under applicable California law. Therefore, the City and/or Agency must satisfy the requirements of certain California statutes relating to the actions of public entities and public agencies including, without limitation, CEQA. Also, as a public body, the City’s or Agency’s action in approving this Agreement may be subject to proceedings to invalidate this Agreement or mandamus. Developer assumes the risk of delays and damages that may result to Developer from any third- party legal actions related to the City ’s or Agency’s approval of this Agreement or the pursuit of the activities contemplated by this Agreement. If a third-party files a legal action regarding the City ’s or Agency’s approval of this Agreement or the pursuit of the activities contemplated by this Agreement, either the City or Agency may terminate this Agreement on thirty (30) days written notice to Developer of the City’s or Agency’s intent to terminate this Agreement, referencing this Section 5.3, without any further obligation to perform the terms of this Agreement and without any liability to Developer resulting from such termination, unless Developer unconditionally agrees to indemnify and defend the City, with legal counsel acceptable to the City, against such third- party legal action, as provided in the next sentence.
Within thirty (30) days of receipt of the City’s or Agency’s notice of intent to terminate this Agreement, as provided in the preceding sentence, Developer may offer to defend the City and Agency, with legal counsel reasonably acceptable to the City and Agency, in the third-party legal action and pay all of the court costs, attorney fees, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and the expenses of any and all financial or performance obligations resulting from the disposition of the legal action. Any such offer from Developer must be in writing and reasonably acceptable to the City and Agency in both form and substance. Nothing contained in this Section 5.8 shall be deemed or construed to be an express or implied admission that the City or Agency is liable to Developer or any other person or entity for damages alleged from any alleged or established failure of the City to comply with any statute, including, without limitation, CEQA. Developer’s defense of such third-party actions as described in this Section 5.3 shall constitute an Unavoidable Delay.
5.9 E
nvironmental Indemnity of the City by Developer . Developer agrees, at its sole cost and expense, to fully indemnify, protect, hold harmless, and defend (with counsel selected by Developer and approved by the City and Agency ) the City , Agency, and their commissions, agents, attorneys, officers, employees, and authorized representatives (collectively, the “Indemnified Parties ”), from and against any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, attorney fees, disbursements and costs of attorneys, environmental consultants and other experts, and all foreseeable and
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unforeseeable damages or costs of any kind or of any nature whatsoever (collectively, “Environmental Claims”) that may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded against, the Indemnified Parties, directly or indir ectly relating to or arising from any of the following “Environmental Matters” occurring after the Close of Escrow:
5.9.1 The presence of Hazardous Materials on, in, under, from or affecting all or any portion of the Properties or the Project.
5.9.2 The storage, holdi ng, handling, release, threatened release, discharge, generation, leak, abatement, removal or transportation of any Hazardous Materials on, in, under, from or affecting the Properties or the Project.
5.9.3 The violation of any law, rule, regulation, judgment, order, permit, license, agreement, covenant, restriction, requirement or the like by Developer, its agents or contractors, relating to or governing in any way Hazardous Materials on, in, under, from or affecting the Properties or the Project.
5.9.4 The failure of Developer, its agents or contractors, to properly complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations, covenants and the like in connection with Developer ’s activities on the Properties or regarding the Project.
5.9.5 The implementation and enforcement by Developer,
its agents or contractors of any monitoring, notification or other precautionary measures that may, at any time, become necessary to protect against the release, potential release or discharge of Hazardous Materials on, in, under, from or affecting the Properties or the Project.
5.9.6 The failure of Developer, its agents or contractors, in compliance with all applicable Environmental Laws, to lawfully remove, contain, transport or dispose of any Hazardous Materials existing, stored or generated on, in, under or from the Properties or the Project.
5.9.7 Any investigation, inquiry, order, hearing, action or other proceeding by or before any governmental agency in connection with any Hazardous Materials on, in, under, from or af fecting the Properties or the Project or the violation of any Environmental Law relating to the Properties or the Project.
5.9.8 Any and all obligations of the City arising from the Pipelines Easement Quitclaim including any actual or alleged violation of any Environmental Laws or Environmental Claims that may have arisen or been caused by an act or omission of any predecessor-in-interest of the Pipelines Easement on the Triangle Lot/City Property prior to the Close of Escrow.
5.9.9 Developer shall pay to the Indemnifi ed Parties all costs and expenses including, without limitation, reasonable attorneys’ fees and costs, incurred by the Indemnified Parties in connection with enforcement of the aforementioned environmental indemnity.
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5.10 Insurance. In order to protect the Cit y, Agency, and their commissions, agents, attorneys, officers, employees and authorized representatives (collectively, “ Additional Insureds”) against any and all claims and liability for death, injury, loss and damage resulting from Developer ’s actions in connection with this Agreement, the Properties, and the Project, Developer shall secure and maintain the insurance coverage, described in and required by this Section 5.5. The City and Agency shall not have any obligation under this Agreement until Developer provides the required policies and/or certificates evidencing the insurance required by this Section 5.5 to the City and the City approves such evidence of insurance. Developer shall pay any deductibles and self-insured retentions under all insurance policies issued in satisfaction of the terms of this Agreement. Developer shall retain all insurance policies as set forth in this Section 5.5 until recordation of a Certificate of Completion for the Project (or component project as described in Section 4.10.1 of this Agreement).
5.10.1 W
orkers’ Compensation Insurance
Requirement. If Developer has any employees, Developer shall submit written proof that Developer is insured against liability for wor kers’ compensation in accordance with the provisions of Section 3700 of the Labor Code. By executing this Agreement, Developer makes the following certification, required by Section 1861 of the Labor Code:
“I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of the Agreement.”
Developer shall require each contractor and sub -contractor performing work on the Project to provide workers ’ compensation coverage for all of such contractor ’s or sub-contractor’ s employees. If any class of employees engaged in work or services performed in connection with the Project is not covered by Labor Code Section 3700, Developer shall provide and/or require each contractor or sub-contractor to provide adequate workers’ compensation insurance covering such employees. Each workers’ compensation policy procured pursuant to this Section 5.5.1 shall contain a full waiver of subrogation clause in favor of the Additional Insureds.
5.10.2 Liability and Permanent Insurance
Requirements.
(1) Developer shall cause to be maintain ed in full
force and effect, until the issuance of a Certificate of Completion for the Project (or component project as described in Section 4.10.1 of this Agreement) , subject to Section 5.5.2.4, the following insurance coverage:
a) Commercial General Liability Insurance coverage,
including, but not limited to, Premises -Operations, if applicable, Contractual Liability Insurance (specifically covering all indemnity obligations of Developer pursuant to this Agreement with the exception of the environmental indemnity obligations), Personal Injury (including bodily injury
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and death), and Property Damage for liability arising out of the construction of the Project and/or Developer’s operations concerning the Properties or the Project. The commercial general liability insurance coverage shall have minimum limits for Bodily Injury and Property Damage liability of TWO MILLION DOLLARS ($2,000,000) each occurrence and FOUR MILLION DOLLARS ($4,000,000) aggregate, which may be satisfied through a combination of primary and umbrella policies.
b) Automobile Liability Insurance against claims of
Personal Injury (including bodily injury and death) and Property Damage covering all owned, leased, hired and non-owned vehicles used by Developer, if any, with minimum limits for Bodily Injury and Property Damage of ONE MILLION DOLLARS ($1,000,000) each occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. Such insurance to the extent applicable shall be provided by a business or commercial vehicle policy. c) Upon acceptance of the Project or any portion
thereof, from each contractor, Developer shall maintain Fire and Extended Coverage Insurance on the Project on a blanket basis or with an agreed amount clause in amounts not less than 100% of the replacement value of all portions of the Project so accepted. (2) During the construction of the Project, Developer
shall require that each contractor performing work on the Project maintain the following insurance coverage, as specified below, at all times during the performance of said work, or Deve loper shall provide for such contractors “ wrap” coverage, as specified below, at all times during the performance of said work:
a) Developer shall maintain Builder ’s Risk Insurance
to be written on an All Risk Completed Value form, in an aggregate amount equal to 100% of the completed insurable value of the Project or portion of the Project on which such contractor is performing work.
b) Each general contractor and each sub -contractor
shall maintain Commercial General Liability Insurance with limits of not less than ONE MILLION DOLLARS ($1,000,000) per occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate to protect Developer during the construction of the Project from claims involving bodily injury and/or death and damage to the property of others.
c) Each gener al contractor and each sub -contractor
shall maintain Automobile Liability Insurance against claims of personal injury (including bodily injury and death) and property damage covering all owned, leased, hired and non-owned vehicles used in the performance of the contractor’s obligations with minimum limits for bodily injury and property damage of ONE MILLION DOLLARS ($1,000,000) each occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. Such automobile liability insurance shall be provided by a business or commercial vehicle policy.
(3) The insurance required in Section 5.10.2.1 and
Section 5.10.2.2 above shall include endorsements naming the Additional Insureds as
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additional insured for liability arising out of this Agreement and any operation related to this Agreement.
(4) Any insurance coverage required under this
Agreement shall not be written on a “ claims made” basis. The applicable certificate of insurance must clearly provide that the coverage is on an “ occurrence” basis. The requirements of this Sectio n 5.10.2.4 shall survive any expiration or termination of this Agreement and the recordation of the Grant Deeds and any Certificate of Completion.
(5) Receipt by the City of evidence of insurance that
does not comply with the above requirements shall not const itute a waiver of the insurance requirements of this Agreement.
(6) Subject to Section 5.10.2.4, all of the insurance
coverage required under this Section 5.10 shall be maintained by Developer or its contractors, as required by the terms of this Agreement, unt il the issuance of the Certificate of Completion and shall not be reduced, modified, or canceled without, at least, thirty (30) days prior written notice to the City. Also, phrases such as “endeavor to” and “but failure to mail such notice shall impose no obligation or liability of any kind upon the company ” shall not be included in the cancellation wording of any certificates of insurance or any coverage for the Additional Insureds. Developer shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits are exhausted or upon insolvency of the insurer that issued the policy.
(7) All insurance to be obtained and maintained by
Developer under this Section 5.10 shall be issued by a company or companies listed in the then current “ Best’s Key R ating Guide ” publication with a minimum of an “A:VII” rating and licensed to do business in the State of California. (8) The City will not accept self -insurance in
satisfaction of the insurance requirements of this Section 5.10. (9) All insurance obtained and maintained by
Developer in satisfaction of the requirements of this Agreement shall be primary to and not contributing to any insurance maintained by the Additional Insureds. (10) Insurance coverage in the minimum amounts set
forth in this Section 5.5 shall not be construed to relieve Developer of any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude the Additional Insureds from taking such other actions as are available to them under any other provision of this Agreement or otherwise at law.
5.10.3 Failure by Developer to maintain all insurance
coverage required by this Section 5.10 to be in effect shall be an Event of Default by Developer. The City, at its sole option, may exercise any remedy available to them
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in connection with such an Event of Default. Alternatively, the City may, at its sole option, purchase any such required insurance coverage and the City shall be entitled to immediate payment fro m Developer for any premiums and associated costs paid by the City for such insurance coverage. Any election by the City to purchase or not to purchase insurance otherwise required to be carried by Developer shall not relieve Developer of its obligation to obtain and maintain the insurance coverage required by this Agreement.
ARTICLE VI
PROJECT FINANCING
6.1 Recordation of Deed(s) of Trust. Developer may record Deeds of Trust against the Properties or any of them to secure Loans for the cost of acquisition and development and/or construction of all or a portion of the Project and any such Deed of Trust shall be a Lien authorized by this Agreement . Neither the C ity nor the Agency shall have any right of approval over the terms of such Loans or the identity of the Lende r making the Loan; provided, however, that Developer shall deliver to City financial feasibility documents, such as any project pro forma and sources and amounts of financing for the project, upon City’s written request.
6.2 U
nauthorized Liens . Except as provided in Section 6.2, until recordation of a Certificate of Completion for the Project (or component project as described in Section 4.10.1 of this Agreement) , Developer shall not record, and shall not allow to be recorded, against the Properties, or any portion thereof, any Lien not expressly authorized by this Agreement. Until recordation of a Certificate of Completion for the Project (or component project as described in Section 4.10.1 of this Agreement), Developer shall remove, or shall have removed, any unauthorized Lien made or recorded against the Properties or any portion of the Properties or shall assure the satisfaction thereof to the satisfaction of the City. After one hundred twenty (120) calendar days prior written notice to Developer, the City shall have the right, but not the obligation, to satisfy any unauthorized Lien made or recorded prior to recordation of a Certificate of Completion for the Project (or component project as described in Section 4.10.1 of this Agreement) and receive reimbursement from Developer for any amounts paid or incurred in satisfying any such Lien, upon demand. Nothing in this Section 6.2, though, shall require Developer to pay or make provisions for the payment of any tax, assessment, lien, or charge that Developer is in the process of contesting the validity or amount thereof, in good faith, and so long as such contest shall not subject the Properties, or any portion thereof, to forfeiture or sale.
6.3 R
ights of Lenders and City Regarding Permitted Loans and Liens .
6.3.1 Whenever the City delivers any notice or demand to Developer regarding any breach or default by Developer under this Agreement that, if not timely cured by Developer, would entitle the City to terminate this Agreement, the City shall send a copy of such notice to each affected Lender of which the City has received notice and a contact address for transmittal of such notices. Whenever the City delivers any notice or demand to Developer regarding any breach or default by Developer under this Agreement that, if not timely cured by Developer, would entitle the City to exercise its power of termination of the fee estate of all or any portion of the Properties pursuant to Section 7.6, the City shall at the same time send a copy of
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such notice or demand to each affected Lender of which the City has received notice and a contact address for transmittal of such notice. Each affected Lender receiving a copy of any such notice shall have the right, at its option, to commence the cure or remedy of any such default of Developer and to diligently and continuously proceed with such cure or remedy, within one hundred eighty (180) calendar days following its receipt of notice of the default. If a default of Developer under this Agreement cannot, with diligence, be remedied or cured, or the remedy or cure of such default cannot be commenced, within such one hundred eighty (180) calendar day period, the Lender shall have such additional time as is reasonably necessary to remedy or cure such default of Developer, but in no event beyond three hundred sixty five (365) calendar days following its receipt of notice of the default. If such default of Developer can only be remedied or cured by the Lender upon obtaining possession of the Properties, the Lender shall seek to obtain possession of the Properties with diligence and continuity through a receiver or otherwise, and shall remedy or cure such default of Developer within one (1) year after obtaining possession of the Properties. Nothing contained in this Agreement shall be deemed to permit or authorize any Lender to undertake or continue the construction of any portion of the Project (beyond the extent necessary to conserve or protect improvements or construction already made), without expressly assuming Developer’s obligations under this Agreement by written agreement approved by the City, in which the Lender agrees to complete, in the manner provided in this Agreement, the improvements to which the Lien or title of the Lender relates, which approval shall not unreasonably be withheld, delayed, or conditioned by the City.
6.3.2 In any case where, by the deadlines set forth in
Section 6.3.1, an affected Lender has not exercised the option provided in Section 6.3.1 to construct the applicable portions of the Project, or has exercised the option, but has not proceeded diligently and continuously with construction, the City shall have the option, in the City’s sole and absolute discretion, to purchase the Loan of such Lender and any security interest of such Lender under its Loan Documents by payment to the Lender of the amount of the unpaid Loan, including principal, accrued and unpaid interest, late charges, costs, expenses and other amounts payable to the Lender by Developer under its Loan Documents and, if the ownership of the Properties or any portion of the Properties has previously vested in such Lender, the City, at its option but not as its obligation, shall be entitled to a conveyance of any title or interest in the Properties vested in such Lender from such Lender.
6.3.3 After the effect ive date of commencement of the City’s option provided for in Section 6.3.2, any affected Lender may demand, in writing, that the City act to exercise or forego the option granted in Section 6.3.2. If the City fails to exercise the right granted in Section 6.3.2 within sixty (60) calendar days from the date of the City’s receipt of such written demand from a Lender, the City shall be conclusively deemed to have waived its right of purchase of that Lender’s interest pursuant to Section 6.3.2.
6.3.4 In the event of a default or breach by Developer
under any Loan Documents, where the Lender has not exercised its option to complete the Project under Section 6.3.2, the City may cure the default of Developer under the applicable Loan Documents, but is under no obligation to do so, prior to completion of any sale or foreclosure of the Properties or any portion thereof under the applicable Loan Documents. The City shall be entitled to reimbursement from Developer of all costs and expenses incurred by the City in curing any default of Developer under any Loan Documents.
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6.3.5 In any case where a Lender has acquired title to all or any portion of the Properties or Project through foreclosure, deed in lieu of foreclosure, or any other means, and such Lender proposes to enter into an agreement to transfer the Properties and/or Project, or any portion thereof, to a third party transferee, the Lender shall provide the City with written notice thereof, which notice shall include a reasonably detailed description of the terms and conditions of the proposed transaction. The City shall have the option, but not the obligation, to purchase the Properties and/or Project on substantially the same terms as described in the Lender’s notice, which option, if ever, shall be exercised by wr itten notice from the City to the Lender within twenty (20) days following the City’ s receipt of the Lender ’s notice. If the City elects not to exercise its option, then, subject to Section 8.2.2, the Lender may complete the transaction described in its notice, provided that such transaction is closed on materially identical terms and conditions as those described in the Lender’s notice to the City. If the Lender and third party transferee desire to materially amend the terms of their proposed transaction, the Lender shall give the City written notice of the proposed modifications and the City shall once again have the right to elect to acquire the Properties and the Project (or portion thereof) on terms and conditions substantially similar to those modified terms. If, for any reason, the proposed transaction between the Lender and third party transferee fails to close within two hundred forty (240) days following the date on which the City first receives notice of the proposed transaction (or notice of the proposed modified transaction, whichever is later), then the City once again have the right to elect to acquire the Properties and/or Project pursuant to this Section 6.3.5.
6.3.6 The City shall consider in good faith any
modifications to the provisions set fo rth in this Section 6.3.6 or any other provision of this Agreement relating to the rights of a Le nder that are reasonably requested by a Lender , provided that (a) such modification is (i) consistent with the customary requirements of institutional lenders at such time, including those imposed by applicable rating agency guidelines, or ( ii) required by banking, insurance or similar laws and regulations setting forth provisions that must appear in a ground lease or similar instrument in order for such agreement to be accepted as security by any Lender or prospective Le nder requesting such modification, ( b) such modification does not (i) adversely affect any of City’s rights, benefits and/or privileges in any material respect, (ii) increase any of City’s liabilities or obligations in any material respect under this Agreement, or (iii) create any new material liability or material obligation of City , and (c) Developer shall pay any actual third party costs and expenses (including reasonable attorney’s fees) incurred by City in connection with any such modification.
6.3.7 Upon the conveyance of the Vacated Portion of Ellis Place and conveyance of the Developer Easements, the covenants of Sections 6.1, 6.2, and 6.3 of this Agreement shall apply to those property interests as well. The restrictions set forth in this Section 6.3 shall remain in effect only until the recordation of a Certificate of Completion for the Project (or component project as described in Section 4.10.1 of this Agreement).
ARTICLE VII
DEFAULTS, REMEDIES AND TERMINATION
7.1 Defaults - General.
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7.1.1 Subject to any extensions of time provided for in this Agreement, failure or delay by any Party to perform any term or provision of this Agreement shall constitute an “ Event of Default ” under this Agreement; provided, however, that if a Party otherwise in default commences to cure, correct or remedy such default, within thirty (30) calendar days after receipt of written notice from the injured Party specifying such default, and shall diligently and continuously prosecute such cure, correction or remedy to completion (and where any time limits for the completion of such cure, correction or remedy are specifically set forth in this Agreement, then within said time limits), such Party shall not be deemed to be in default under this Agreement and no Event of Default shall be deemed to have occurred.
7.1.2 The injured Party shall give written notice of default to the Party in default, specifying the default complained of by the non- defaulting Party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default.
7.1.3 Any failure or delays by any Party in asserting any of their rights and/or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by any Party in asserting any of its rights and/or remedies shall not deprive that Party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert or enforce any such rights or remedies.
7.1.4 In addition to other acts or omissions of Developer that may legally or equitably constitute a default or breach of this Agreement, the occurrence of any of the following specific events, prior to the issuance of a Certificate of Completion for the Project (or component project as described in Section 4.10.1 of this Agreement) , shall constitute an “Event of Default ” under this Agreement and shall not be subject to the notice and cure provisions of Section 7.1.1:
(1) Any representation, warranty or disclosure made
to the City by Developer regarding this Agreement or the Project is materially false or misleading, whether or not such representation or disclosure appears in this Agreement. (2) The construction of the Project is delayed or
suspended for a period in excess of the time period(s) set forth in the Schedule of Performance. (3) Developer has not been issued, or entitled to be
issued, a Certificate of Completion for the entire Project by the Project Completion Date , as the same may have been extended by Unavoidable Delays.
(4) There occurs any event of dissolution,
reorganization or termination of Developer that adversely and materially affects the operation or value of the Properties or the Project, and such event is not corrected within sixty (60) days after filing thereof.
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(5) Developer Transfers its interest in this
Agreement, the Properties, or the Project, or any portion thereof, whether voluntarily or involuntarily or by operation of law, in violation of the terms and conditions of this Agreement and such action is not cured within the period prescribed in Section 8.2.2. (6) Developer becomes insolvent or a receiver is
appointed to conduct the affairs of Developer under state or federal law that is not dismissed within sixty (60) days.
(7) Recordation in the Official Records of a Notice
of Default under any Deed of Trust.
7.2 CITY AND AGENCY LIQUIDATED DAMAGES. IF THE CLOSING FAILS
TO OCCUR AS A RESULT OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER
THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW, EITHER THE CITY OR THE AGENCY MAY CANCEL THE ESCROW PURSUANT TO SECTION 3.11, AND UPON
CANCELLATION OF THE ESCROW, THE CITY AND AGENCY SHALL BE RELIEVED OF
ANY OBLIGATION UNDER THIS AGREEMENT TO SELL OR CONVEY THE
PROPERTIES OR ANY PORTION THEREOF AND ANY SUCH ESCROW CANCELLATION
SHALL BE WITHOUT ANY LIABILITY OF THE CITY TO THE DEVELOPER, OR THE
AGENCY TO THE DEVELOPER, OR ANY OTHER PERSON ARISING FROM SUCH ACTIONS. THE CITY, AGENCY AND THE DEVELOPER ACKNOWLEDGE THAT IT IS
EXTREMELY DIFFICULT AND IMPRACTICAL, IF NOT IMPOSSIBLE, TO ASCERTA IN
THE AMOUNT OF DAMAGES THAT WOULD BE SUFFERED BY THE CITY AND
AGENCY IN THE EVENT OF A CANCELLATION OF THE ESCROW DUE TO THE
OCCURRENCE OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW. HAVING MADE DILIGENT BUT
UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES THE CITY AND
AGENCY WOULD SUFFER IN THE EVENT OF A CANCELLATION OF THE ESCROW
DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER
THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW, THE CITY, AGENCY AND THE DEVELOPER AGREE THAT A REASONABLE ESTIMATE OF THE CITY’S DAMAGES IN SUCH EVENT IS THE TOTAL SUM OF THE CITY DEPOSIT (THE “ CITY LIQUIDATED DAMAGES AMOUNT ”) AND THE AGENCY’ S DAMAGES IN SUCH EVENT IS THE TOTAL SUM OF THE AGENCY DEPOSIT (THE “ AGENCY LIQUIDATED DAMAGES”) (COLLECTIVELY THE “ LIQUIDATED DAMAGES AMOUNT ”). THEREFORE, UPON
THE CANCELLATION OF THE ESCROW BY EITHER THE CITY OR THE AGENCY DUE
TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS
AGREEMENT PRIOR TO THE CLO SE OF THE ESCROW, ESCROW HOLDER SHALL
IMMEDIATELY CANCEL THE ESCROW AND PAY THE LIQUIDATED DAMAGES
AMOUNT TO THE CITY AND AGENCY, IN PART, FROM THE EARNEST MONEY DEPOSIT WITHIN FIVE (5) DAYS OF ESCROW CANCELLATION. RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE THE CITY’S AND AGENCY’S SOLE AND
EXCLUSIVE REMEDY UPON THE CANCELLATION OF THE ESCROW DUE TO THE
OCCURRENCE OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW.
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CITY’S INITIALS: _____
AGENCY’ INITIALS: _____
DEVELOPER’S INITIALS: _____
7.3 DEVELOPER RIGHTS TO LIQUIDATED DAMAGES AND SPECIFIC PERFORMANCE. UPON THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE
CITY OR AGENCY UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW, THE
DEVELOPER MAY EITHER ELECT TO CANCEL THE ESCROW PURSUANT TO SECTION
3.11 OR DEVELOPER MAY INSTRUCT THE ESCROW TO PROCEED TO CLOSE BY EXERCISING ITS RIGHT AND REMEDY OF SPECIFIC PERFORMANCE.
7.3.1 IF DEVELOPER CHOOSES TO CANCEL THE
ESCROW, THE DEVELOPER SHALL BE RELIEVED OF ANY OBLIGATION UNDER THIS
AGREEMENT TO ACQUIRE THE PROPERTIES OR ANY PORTION THEREOF OR TO
PROCEED WITH THE PROJECT, AND ANY SUCH ESCROW CANCELLATION SHALL BE
WITHOUT ANY LIABILITY OF THE DEVELOPER TO THE CITY OR THE AGENCY OR ANY OTHER PERSON ARISING FROM SUCH ACTIONS. THE PARTIES
ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICAL, IF NOT
IMPOSSIBLE, TO ASCERTAIN THE AMOUNT OF DAMAGES THAT WOULD BE
SUFFERED BY THE DEVELOPER IN THE EVENT OF A CANCELLATION OF THE
ESCROW DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE CITY OR AGENCY UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW. HAVING
MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL
DAMAGES THE DEVELOPER WOULD SUFFER IN THE EVENT OF A CANCELLATION
OF THE ESCROW DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT UNDER
THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW, THE CITY, AGENCY AND THE DEVELOPER AGREE THAT A REASONABLE ESTIMATE OF THE DEVELOPER ’S DAMAGES IN SUCH EVENT IS THE AMOUNT OF DEVELOPER’S SHARE OF ESCROW
CANCELLATION THAT WOULD OTHERWISE BE PAID BY DEV ELOPER FOR A CANCELLATION OF THE ESCROW (THE “DEVELOPER LIQUIDATED DAMAGES”).
THEREFORE, IF DEVELOPER CHOOSES TO CANCEL THE ESCROW, THEN UPON THE
CANCELLATION OF THE ESCROW BY DEVELOPER DUE TO THE OCCURRENCE OF
AN EVENT OF DEFAULT BY THE CITY OR AGENCY PURSUANT TO THIS SECTION
7.3.1, ESCROW HOLDER SHALL IMMEDIATELY RETURN THE EARNEST MONEY
DEPOSIT TO DEVELOPER, CANCEL THE ESCROW AND THE DEFAULTING PARTY,
EITHER THE CITY OR THE AGENCY, SHALL PAY THE DEVELOPER LIQUIDATED DAMAGES AMOUNT TO THE DEVELOPER WITHIN FIVE (5) DAYS OF ESCROW CANCELLATION AND SUBSTANTIATION OF THE AMOUNT THEREOF.
7.3.2 IN THE ALTERNATIVE TO THE RIGHT OF
THE DEVELOPER CANCEL AND RECEIVE THE EARNEST MONEY DEPOSIT AND THE
DEVELOPER LIQUIDATED DAMAGES, UPON THE OCCURRENCE OF AN EVENT OF
DEFAULT BY THE CITY OR AGENCY UNDER THIS AGREEMENT PRIOR TO THE
CLOSE OF ESCROW, THE DEVELOPER SHALL HAVE THE RIGHT NOT TO CANCEL
THE ESCROW, DEPOSIT THE BALANCE OF THE FUNDS FOR THE PURCHASE PRICE
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INTO ESCROW, AND SHALL HAVE THE RIGHT TO INSTRUCT THE ESCROW HOLDER
TO PROCEED TO CLOSE BY EXERCISING THE RIGHT AND REMEDY OF SPECIFIC PERFORMANCE. IF DEVELOPER EXERCISES ITS RIGHT AND REMEDY OF SPECIFIC
PERFORMANCE, THE CITY AND AGENCY SHALL HAVE THE OBLIGATION TO
EXECUTE, HAVE NOTARIZED (IF REQUIRED), AND DELIVER TO ESCROW HOLDER
ANY AND ALL DOCUMENTS REQUIRED FOR ESCROW TO PROCEED TO CLOSE
PURSUANT TO THIS AGREEMENT, IN ADDITION TO ANY OTHER AUTHORIZATION
THE ESCROW HOLDER MAY HAVE BY LAW TO PROCEED TO CLOSING UPON EXERCISING DEVELOPER’S RIGHT AND REMEDY OF SPECIFIC PERFORMANCE.
RECEIPT OF THE EARNEST MONEY DEPOSIT AND THE DEVELOPER
LIQUIDATED DAMAGES AMOUNT OR ENFORCEMENT OF THE RIGHT OF SPECIFIC PERFORMANCE SHALL BE THE DEVELOPER ’S SOLE AND EXCLUSIVE REMEDIES
UPON THE CANCELLATION OF THE ESCROW DUE TO THE OCCURRENCE OF AN
EVENT OF DEFAULT BY THE CITY OR AGENCY UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW.
CITY’S INITIALS: _____
AGENCY’ INITIALS: _____
DEVELOPER’S INITIALS: _____
7.4 Legal Actions.
7.4.1 Subject to the provisions in Sections 7.2 and 7.3, any Party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy available to that Party under this Agreement or at law or in equity. Such legal actions must be instituted in the Superior Court of the State of California in and for the County of Orange, California, in any other appropriate court within said County.
7.4.2 The procedural and substantive laws of the State of California shall govern the interpretation and enforcement of this Agreement, without regard to conflicts of laws principles. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in, and relates to real property located in the City of Fullerton, County of Orange, California.
7.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties set forth in this ARTICLE VII are non- exclusive and cumulative, and the exercise by any Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party(ies).
7.6 C
ity Power of Termination Regarding the Properties .
7.6.1 Subject to the notice and right to cure provisions set forth in Section 7.1 and Section 7.2 of this Agreement, whereby Developer shall have a right to cure any alleged defaults prior to the commencement of City’ s right under this Section 7.6, the
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City hereby reserves a power of term ination pursuant to Civil Code Sections 885.010 et seq ., exercisable by the City, in its sole and absolute discretion, upon an additional thirty (30) calendar days written notice to Developer referencing this Section 7.6, to terminate the fee interest of Developer in the Properties and/or any improvements to the Properties and revest such fee title in the City and take possession of all or any portion of such real property and improvements, without compensation to Developer except as set forth in Section 7.6.5 below , upon the occurrence of an Event of Default by Developer following the Close of Escrow and prior to the issuance of the Certificate of Completion.
7.6.2 The thirty (30) calendar day written notice specified Section 7.6.1 shall specify the Event of Default by Developer triggering the City’s exercise of its power of termination. The City shall proceed with its remedy set forth in Section 7.6.1 only if Developer continues in default for a period of sixty (60) calendar days following such notice or, upon commencing to cure such default, fails to diligently and continuously prosecute said cure to satisfactory conclusion.
7.6.3 The rights of the City under this Section 7.6 shall be subject and subordinate to, shall be limited by and shall not defeat, render invalid or limit:
(1) Each Lien recorded against the Properties and specifically authorized by this Agreement as a Permitted Transfer;
(2) Any leases, declarations of covenants, conditions
and restrictions, easement agreements or other recorded documents or intere sts applicable to the Properties and specifically authorized by this Agreement as a Permitted Transfer.
7.6.4 Upon the City’s exercise of its power of termination pursuant to this Section 7.6, Developer or its successors or assigns shall convey by grant deed to the City title to the Properties, as specified in the City ’s notice pursuant to Section 7.6.1, and all improvements thereon, in accordance with Civil Code Section 1109, as such code section may hereafter be amended, renumbered, replaced or substituted. Such conveyance shall be duly acknowledged by Developer and a notary in a manner suitable for recordation. The City may enforce its rights pursuant to this Section 7.6 by means of an injunctive relief or forfeiture of title action filed in any court of competent jurisdiction.
7.6.5 Upon the revesting in the City of title to the
Properties, whether by grant deed or court decree, the City shall exercise its reasonable good faith efforts to resell the Properties at its then fair market value, as soon and in such manner as the City shall, in its sole discretion, find feasible and consistent with the objectives of the City ’s General Plan, to a qualified and responsible person or persons (as reasonably determined by the City) who will assume Developer’s obligations to begin and/or complete and/or operate that portion of the Project located on the Properties, or such other replacement development acceptable to the City, in its sole and absolute discretion. Upon any such resale of the Properties (or any portion thereof), the proceeds to the City from such sale shall be applied as follows:
(1) First, to pay any and all amounts required to
release/reconvey any Lien recorded against all or any portion of the Properties; and
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(2) Second, to reimburse the City on its own behalf
or on behalf of the City for all actual third-party costs and expenses previously or currently incurred by the City related to the Properties, the Project, or this Agreement, including, but not limited to, customary and reasonable fees or salaries to third -party personnel engaged in such actions, in connection with the recapture, management and resale of the Properties or any part thereof; all taxes, assessments and utility charges paid by the City with respect to the Properties or portion thereof; any payment ma de or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations incurred by Developer with respect to the acquisition of the Properties or the construction of the Project; and amounts otherwise owing to the City by Developer or its successors or assigns pursuant to the terms of this Agreement; and
(3) Third, to the extent that any proceeds from such
resale are, thereafter, available, taking into account any prior encumbrances with a claim t hereto, to reimburse Developer, or its successors in interest to the equal to the sum of: (1) the Purchase Price; and (2) the third -party costs actually incurred and paid by Developer regarding the development of the Project located on the Properties, inc luding, but not limited to, pro rata costs of carry, taxes, and other items as set forth in a cost certification to be made by Developer to the City prior to any such reimbursement, which certification shall be subject to the City’s reasonable approval; pr ovided, however, that Developer shall not be entitled to reimbursement for any expenses to the extent that such expenses relate to any loans, Liens or other encumbrances that are paid by the City pursuant to the provisions of sub-sections 7.6.5.1 or 7.6.5.2 above. (4) Any portion of the proceeds from the resale of the
Properties remaining after the foregoing applications shall be retained by the City as their sole and exclusive property.
7.6.6 THE DEVELOPER ACKNOWLEDGES AND
AGREES THAT THE CITY’S EXERCISE OF ITS POWER OF TERMINATION PURSUANT TO THIS SECTION 7.6 MAY WORK A FORFEITURE OF THE ESTATE IN THE
DEFAULTED PORTION OF THE PROPERTIES CONVEYED TO THE DEVELOPER THROUGH THE GRANT DEEDS. THE DEVELOPER HEREBY EXPRESSLY WAIVES, TO
THE MAXIMUM EXTENT ALLOWED BY LAW, ANY AND ALL EQUITABLE AND
LEGAL DEFENSES THAT THE DEVELOPER MAY HAVE TO SUCH FORFEITURE,
INCLUDING, BUT NOT LIMITED TO, THE DEFENSES OF LACHES, WAIVER, ESTOPPEL, SUBSTANTIAL PERFORMANCE OR COMPENSABLE DAMAGES. THE
DEVELOPER FURTHER EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT ALLOWED
BY LAW, ANY AND ALL RIGHTS AND DEFENSES THAT THE DEVELOPER MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 3275 OR ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT. THE DEVELOPER ACKNOWLEDGES
THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT REFLECT THE POSSIBILITY OF FORFEITURE BY VIRTUE OF THE EXERCISE OF THE CITY’S POWER OF TERMINATION PROVIDED IN THIS SECTION 7.6 AND FURTHER ACKNOWLEDGE
THAT IT HAS RECEIVED INDEPENDENT AND ADEQUATE CONSIDERATION FOR ITS
WAIVER AND RELINQUIS HMENT OF RIGHTS AND REMEDIES PURSUANT TO SECTION 7.6.6. AND THIS SECTION 7.6.7.
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DEVELOPER’S INITIALS ____________
7.7 Developer Indemnification of the City . In addition to any other specific indemnification or defense obligations of Developer set forth in this Agreement, Developer agrees to indemnify, defend (upon written request by the City and with counsel reasonably acceptable to the City from a choice of counsel provided by Developer in its reasonable discretion) and hold harmless the Indemnified Parties, from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs and expenses, including, but not limited to reasonable attorney’s fees of counsel retained by the Indemnified Parties, expert fees, costs of staff time, and investigation costs, of whatever kind or nature, that are caused, occasioned or contributed to through any willful misconduct or gross negligence of Developer or Developer ’s officers, agents, employees, independent contractors or subcontractors of any tier, relating in any manner to this Agreement, any work to be performed by Developer related to this Agreement, the Properties, or the Project, or any authority or obligation exercised or undertaken by Developer under this Agreement. Without limiting the generality of the foregoing, Developer’s obligation to indemnify the Indemnified Parties shall include injury or death to any person or persons, damage to any property, regardless of where located, including the property of the Indemnified Parties, any workers’ compensation or prevailing wage determination, claim or suit or any other matter arising from or connected with any goods or materials provided or services or labor performed regarding the Project or the Properties on behalf of Developer by any person or entity. For purposes of this Section 7.7, “Indemnified Parties” means the City and any of its representatives, officials, officers, employees, and agents.
7.8 D
eveloper Indemnification of the Agency . In addition to any other specific indemnification or defense obligations of Developer set forth in this Agreement, Developer agrees to indemnify, defend (upon written request by the Agency and with counsel reasonably acceptable to the Agency from a choice of counsel provided by Developer in its sole discretion) and hold harmless the Indemnified Parties, from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs and expenses, including, but not limited to reasonable attorney’s fees of counsel retained by the Indemnified Parties, expert fees, costs of staff time, and investigation costs, of whatever kind or nature, that are caused, occasioned or contributed to through any willful misconduct or gross negligence of Developer or Developer ’s officer s, agents, employees, independent contractors or subcontractors of any tier, relating in any manner to this Agreement, any work to be performed by Developer related to this Agreement, the Properties, or the Project, or any authority or obligation exercised or undertaken by Developer under this Agreement. Without limiting the generality of the foregoing, Developer’s obligation to indemnify the Indemnified Parties shall include injury or death to any person or persons, damage to any property, regardless of where located, including the property of the Indemnified Parties, any workers’ compensation or prevailing wage determination, claim or suit or any other matter arising from or connected with any goods or materials provided or services or labor performed regarding the Project or the Properties on behalf of Developer by any person or entity. For purposes of this Section 7.8, “ Indemnified Parties ” means the Agency and any of its representatives, officials, officers, employees, and agents.
7.9 C
ity a nd Agency Indemnification of Developer. In addition to any other specific indemnification or defense obligations of the City or Agency set forth in this Agreement, the City and Agency agree (jointly and severally) to indemnify, defend (upon written request by Developer
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and with counsel reasonably acceptable to Developer from a choice of counsel provided by the City and Agency in their sole discretion) and hold harmless the Indemnified Parties, from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs and expenses, including, but not limited to reasonable attorney’ s fees of counsel retained by the Indemnified Parties, expert fees, costs of staff time, and investigation costs, of whatever kind or nature, that are caused, occasioned or contributed to through any gross negligence or willful misconduct by the City, Agency, or any of their respective officers, agents, employees, independent contractors or subcontractors of any tier, relating to the City’ s and /or Agency’ s performance or failure to perform in accordance with their respective obligations in this Agreement. For purposes of this Section 7.9, “Indemnified Parties” means Developer and any of its representatives, officials, officers, employees, and agents.
7.10 Indemnification Procedures . Wherever this Agreement requires any party to indemnify (“Indemnitor”) any other party (“Indemnitee”):
7.9.1 Prompt Notice. The Indemnitee shall promptly deliver written notice to the Indemnitor of any claim.
7.9.2 Selection of Counsel . The Indemnitor shall select counsel reasonably acceptable to the Indemnitee. Counsel to Indemnitor’s insurance carrier that is providing coverage for a c laim shall be deemed reasonably satisfactory, except in the event of a potential or actual conflict of interest for such counsel regarding such representation or such counsel proves to be incompetent regarding such representation. Even though the Indemnitor shall defend the c laim, Indemnitee may, at Indemnitee’s option and expense (except in a situation where the Indemnitor is defending Indemnitee under a reservation of rights, in which situation the Indemnitor shall pay for such separate counsel), engage separate counsel to advise it regarding the claim and its defense.
The Indemnitee’s separate couns el may attend all proceedings and meetings. The Indemnitor’s counsel shall actively consult with the Indemnitee’s separate counsel.
7.9.3 Cooperation. The Indemnitee shall reasonably cooperate with the Indemnitor’s defense of the Indemnitee.
7.9.4 Settlement. The Indemnitor may only settle a claim with the consent of the Indemnitee. Any settlement shall procure a release of the Indemnitee from the subject c laims, shall not require the Indemnitee to make any payment to the claimant and shall provide that neither the Indemnitee nor the Indemnitor on behalf of Indemnitee admits any liability.
ARTICLE VIII
GENERAL PROVISIONS.
8.1 Incorporation of Recitals. The Recitals of fact set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference.
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8.2 Restrictions on Transfers.
8.2.1 Developer acknowledges that the qualifications and identity of Developer are of particular importance to the City. Developer further recognizes and acknowledges that the City has relied and is relying on the specific qualifications and identity of Developer in entering into this Agreement with Developer and, as a consequence, Transfers are permitted only as expressly provided in this Agreement. Developer shall promptly notify the City in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in control of Developer, as well as any and all changes in the interest or the degree of control of Developer by any such person, of which information Developer or any of its partners, members or officers are notified or may otherwise have knowledge or information.
8.2.2 Except as expressly permitted in this Agreement,
Developer represents to the City that it has not made and agrees that it will not make or create, or suffer to be made or created, any Transfer other than a Permitted Transfer, either voluntarily, involuntarily or by operation of law, until after the recordation of a Certificate of Completion for the Project (or component project as described in Section 4.10.1 of this Agreement) subject to the Transfer; provided, however, that the City may approve in its reasonable discretion, Transfers other than Permitted Transfers prior to the recordation of a Certificate of Completion. In deciding whether to approve or disapprove any proposed Transfer, the City may consider the proposed transferee ’s financial strength and the experience of the proposed transferee and its senior management in undertaking and successfully completing projects of a similar type and size as the Project or that portion of the Project proposed to be transferred. Any Transfer made in contravention of this Section 8.2 shall be voidable at the election of the City and this Agreement may be terminated by the City or the City may exercise any other remedy available to the City under the terms of this Agreement, provided, however, that (i) the City shall first notify Developer in writing of its intention to terminate this Agreement or to exercise any other remedy, and (ii) Developer shall have twenty (20) calendar days following its receipt of such written notice to commence and, thereafter, diligently and continuously proceed to cure the default of Developer and submit evidence of the initiation and satisfactory completion of such cure to the City, in a form and substance reasonably satisfactory to the City.
8.2.3 Developer shall provide the City no less than thirty (30) days prior written notice of any proposed Permitted Transfer which Developer desires to enter into prior to the recordation of a Certificate of Completion for the Project (or component project as described in Section 4.10.1 of this Agreement) subject to the Transfer, other than a Permitted Transfer for which no notice shall be required. Developer shall have the burden of demonstrating to the City’s reasonable satisfaction that the proposed Permitted Transfer meets the conditions and requirements of this Agreement with respect to Permitted Transfers.
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8.2.4 In connection with the City’s review of any request for approval of any proposed Transfer under this Section 8.2, Developer agrees to reimburse the City for those third party costs and expenses incurred by the City in connection with its review of Developer ’s request for approval, including, without implied limitation, the reasonable fees and costs of those outside consultants and legal counsel retained by the City to assist it in its review of Developer’s request, including the City Attorney.
8.2.5 Anything in this Agreement to the contrar y
notwithstanding, the restrictions and prohibitions on Transfers contained in this Section 8.2 shall terminate upon issuance of a Certificate of Completion for the Project (or component project as described in Section 4.10.1 of this Agreement).
8.3 Notices, Demands and Communications Between the Parties.
8.3.1 Any and all notices, demands or communications
submitted by any Party to another Party pursuant to or as required by this Agreement shall be proper, if in writing and dispatched by messenger for immediate pers onal delivery, by a nationally recognized overnight courier service or by registered or certified United States Mail, postage prepaid, return receipt requested, to the principal office of the City, the Agency or Developer, as applicable, as designated in Section 8.3.2. Such written notices, demands or communications may be sent in the same manner to such other addresses as either Party may from time to time designate.
Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service or three (3) calendar days after it is placed in the United States Mail, as provided in this Section 8.3.
8.3.2 The following are the authorized addresses for the submission of notices, demands or communications to the Parties:
TO DEVELOPER: NFRED LLC
Fox Harbor LLC
c/o Frontier Real Estate Investments
31791 Los Rios Street
San Juan Capistrano, CA 92675
Attn: Dan Almquist
(T) (949) 800-8070
(F) (949) 679-7022
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WITH COPY TO: Karavas Kiely Schloss & Whitman LLP
11400 West Los Olympic Boulevard, Suite 1480
Los Angeles, CA 90064
Attention: Michael Kiely, Esq.
Email: [email protected]
Direct: 310.203.2683
Cell: 310.962.1974
TO CITY:
City of Fullerton
303 W. Commonwealth Avenue
Fullerton, CA 92832
Attention: City Manager
(T) 714-738-6310
(F) ____________
TO AGENCY:
Successor Agency to the Fullerton Redevelopment
Agency
303 W. Commonwealth Avenue
Fullerton, CA 92832
Attention: Executive Director
(T) 714-738-6310
(F) ____________
COPIES FOR CITY
AND AGENCY TO:
Rutan & Tucker, LLP
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
Attention: William H. Ihrke, Esq.
(T) (714) 641-5100
(F) (714) 546-9035
8.4 Conflict of Interest. No member, official or employee of the City or the Agency, having any conflict of interest, direct or indirect, related to this Agreement, the Properties, or the development or operation of the Project shall participate in any decision relating to this Agreement.
The Parties represent and warrant that they do not have knowledge of any such conflict of interest.
8.5 War
ranty Against Payment of Consideration for Agreement . Developer warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration for obtaining this Agreement. Third parties, for the purposes of this Section 8.5, shall not include persons to whom fees are paid for professional services, if rendered by attorneys, financial consultants, accountants, engineers, architects and the like when such fees are considered necessary by Developer.
8.6 No
n -liability of City, Agency, Officials and Employees. No member, official or employee of the City or the Agency shall be personally liable to Developer, or any successor in interest of Developer, in the event of any default or breach by the City or the Agency under this Agreement or for any amount that may become due to Developer or to its successor, or on any obligations under the terms of this Agreement, except as may arise from the gross negligence or willful acts of such member, official or employee.
-68-
8.7 Unavoidable Delay; Extension of Time of Performance.
8.7.1 Subject to specific provisions of this Agreement, performance by any Party under this Agreement shall not be deemed, or considered to be, in default where any such default is due to an Unavoidable Delay that is not attributable to the fault of the Party claiming an extension of time to perform. An extension of time for any Unavoidable Delay shall be for the period of the Unavoidable Delay and shall commence to run from the date of occurrence of the Unavoidable Delay, if the Party asserting the existence of the Unavoidable Delay provides the other Parties with written notice of the occurrence of the Unavoidable Delay, within ten (10) days of the commencement of such asserted Unavoidable Delay. Otherwise, the extension of time for an Unavoidable Delay shall commence on the date of receipt of written notice of the occurrence of the Unavoidable Delay by the Parties not requesting an extension of time to perform due to such Unavoidable Delay.
8.7.2 Except as provided in this Agreement, Parties
expressly acknowledge and agree that changes in either general economic conditions or changes in the economic assumptions of either of them that may have provided a basis for entering into this Agreement and that occur at any time after the execution of this Agreement do not constitute an Unavoidable Delay and do not provide any Party with grounds for asserting the existence of an Unavoidable Delay in the performance of any covenant or undertaking arising under this Agr eement. Each Party expressly assumes the risk that changes in general economic conditions or changes in such economic assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or hardship on the continued performance of such Party under this Agreement.
8.7.3 Notwithstanding Section 8.7.2 above, if there is a general economic downturn that severely adversely affects the economic viability of the Project or there is another condition set forth in this Agreement as an Unavoidable Delay, Developer may request, and City Manager may grant in his or her reasonable discretion, up to a total 18- month extension of the Project Completion Date, which extension may be partially applied by the City Manager in multiple weeks or months at a time (such as an extension period that constitutes two months for one item of completion, another extension period that constitutes three months for another item of completion, and so on until 18 months have been applied).
8.8 Inspection of Books and Records. If required in order for the City or Agency to comply with any audit request or demand made of the City or Agency pursuant to any law or regulation, including but not limited to any state agency’s laws and regulations, the City shall have the right at all reasonable times during business hours, at the City’s cost and expense, to inspect the books and records of Developer pertaining to the Properties and/or the Project. Developer shall also have the right at all reasonable times, at Developer’s sole cost and expense, to inspect the books and records of the City pertaining to the Properties and/or the Project, to the extent relevant to Developer’s obligations under this Agreement. Nothing in this Section 8.8 or elsewhere in this Agreement shall, however, constitute a waiver or modification of any right or privilege
-69-
which any Party may have with respect to any document, statement, or other record, including, without implied limitation, the attorney-client privilege, the attorney-work product privilege, any privilege arising under any state or federal evidentiary code or rule, or any privilege or exclusionary right arising under any state or federal freedom of information or public records disclosure laws.
8.9 Real Estate Commissions. Neither the City nor the Agency shall be liable for any real estate commissions, brokerage fees or finder fees that may arise from or be related to this Agreement. Developer shall pay any fees or commissions or other expenses related to its retention or employment of real estate brokers, agents or other professionals
8.10 B
inding on Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors, and assigns.
8.11 E
ntire Agreement .
8.11.1 This Agreement shall be executed in four
(4) duplicate originals, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. This Agreement includes ___ pages (exclusive of signature pages) and ___ exhibits, which constitute the entire understanding and agreement of the Parties regarding the Properties, the Project, and the other subjects addressed in this Agreement.
8.11.2 This Agreement integrates all of the terms and
conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the Properties, the Project, and the other subjects addressed in this Agreement.
8.11.3 None of the terms, covenants, agreements or
conditions set forth in this Agreement shall be deemed to be merged with any deed conveying title to the Properties and this Agreement shall continue in full force and effect before and after such conveyances.
8.11.4 All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representative(s) of all Parties.
8.12 Execution of this Agreement. This Agreement shall be subject to the review and approval by the City Council and the Agency ’s governing body, in their respective sole and absolute discretion, and this Agreement shall have no validity or serve as a binding agreement of the City or Agency without said respective approvals. Once the City Council and Agency governing board have approved this Agreement, then Developer shall deliver to the City three (3) originals of this Agreement executed (and, if required, notarized) by the authorized representative(s) of Developer, with prompt delivery of such originals to the City and the Agency, accompanied by an official action of the governing body of Developer authorizing the individuals executing this Agreement on behalf of Developer to execute and perform this Agreement.
-70-
8.13 City Approvals and Actions. City shall maintain authority of this Agreement and the authority to implement this Agreement through the City Manager. The City Manager (or authorized designee) shall have the authority to make approvals, issue interpretations, waive provisions, negotiate and enter into amendments to this Agreement and/or negotiate and enter into implementing agreements or documents (including recorded instruments) on behalf of City so long as such actions do not materially or substantially change the business terms of this Agreement or the uses or development permitted on the Properties, or materially or substantially add to the costs incurred or to be incurred by City as specified herein. Such approvals, interpretations, waivers, amendments, and/or implementing agreements or documents may include extensions of time as specified in this Agreement. All other material and/or substantial interpretations, waivers, or amendments shall require the consideration, action and written consent of the City Council.
8.14 Sur
vival of Indemnity Obligations . All general and specific indemnity and defense obligations of the Parties set forth in this Agreement shall survive the expiration or termination of this Agreement, the execution or recordation of the Grant Deed, and/or the issuance and recordation of any Certificate of Completion.
8.15 T
ime Declared to be of the Essence. As to the performance of any obligation hereunder as to which time is a component thereof, the performance of such obligation within the time provided is of the essence.
8.16 1031 E
xchange. Subject to compliance with notification to City of the proposed transfer pursuant to Section 8.2.1 of this Agreement, Developer shall have the right to assign this Agreement to a qualified intermediary (“ Qualified Intermediary ”) solely for the purpose of effectuating a tax deferred exchange under Section 1031 of the Internal Revenue Code (an “Exchange”) with respect to the Properties . Any such assignment shall not release Developer from its obligations and liabilities under this Agreement. City and Agency hereby agree to reasonably cooperate in connection with any such Exchange, provided that notwithstanding any provision of this Agreement to the contrary: (a) City and Agency are acting solely as an accommodating party to such Exchange (and all documents executed by City and Agency in connection with such Exchange shall recognize or acknowledge that City and Agency are acting solely as accommodating part ies to such Exchange), (b) neither City nor Agency shall have any liability with respect thereto, (c) neither City nor Agency is making any representation or warranty that the transactions qualify as a tax deferred exchange under Section 1031 of the Internal Revenue Code or any applicable state or local laws and neither City nor Agency shall have any liability whatsoever if any such transactions fail to so qualify, (d) such Exchange shall not result in City or Agency incurring any additional costs or liabilities, and Developer shall (and hereby agrees to) indemnify, defend and hold each of the City and Agency harmless from and against any such additional claims, causes of action, costs and liabilities, (e) in no event shall the City or Agency be obligated to acquire any property or otherwise be obligated to take title, or appear in the records of title, to any property in connection with the Exchange, and (f) in no event shall Developer 's consummation of such Exchange constitute a condition precedent to Developer's obligations under this Agreement, and Developer’s failure or inability to consummate such Exchange for any reason or for no reason shall not be deemed to excuse or release Developer from its obligations under this Agreement.
(Signatures on Following Pages)
698/036753-0126
17796404.12 a11/10/22
SIGNATURE PAGE
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
CITY:
THE CITY OF FULLERTON
a California municipal corporation
Dated:_________________, 2022 By:
City Manager
ATTEST:
____________________________
City Clerk
APPROVED AS TO LEGAL FORM:
RUTAN & TUCKER, LLP
By: _______________________
Special Counsel
698/036753-0126
17796404.12 a11/10/22
SIGNATURE PAGE
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
AGENCY:
CITY OF FULLERTON IN ITS CAPACITY AS
SUCCESSOR AGENCY TO THE FULLERTON
REDEVELOPMENT AGENCY
a public body, corporate and politic
Dated:_________________, 2022 By:
Executive Director
ATTEST:
____________________________
Secretary to the Board
APPROVED AS TO LEGAL FORM:
RUTAN & TUCKER, LLP
By: _______________________
Special Counsel
698/036753-0126
17796404.12 a11/10/22
SIGNATURE PAGE
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
DEVELOPER:
NFRED LLC, a California limited liability company,
Manager
Dated:_____________________ By:
Dan Almquist, Manager
AFFILIATE OF DEVELOPER:
FOX HARBOR LLC , a California limited liability
company
Dated:_____________________ By:
Dan Almquist, Manager
698/036753-0126
17796404.12 a11/10/22 EXHIBIT A-1
EXHIBIT A-1
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Legal Description of Developer Property
THE LAND SITUATED IN THE CITY OF FULLERTON, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
THE NORTH 100 FEET OF LOT 1 OF CENTRAL ADDITION, IN THE CITY OF
FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 7, PAGES 7 AND 8 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE SOUTH 2 FEET THEREOF.
ALSO EXCEPT THEREFROM THAT PORTION CONVEYED TO THE FULLERTON REDEVELOPMENT AGENCY, AS SET FORTH AND DESCRIBED AS PARCEL 3 BY THAT CERTAIN GRANT DEED RECORDED JULY 25, 1991 AS INSTRUMENT NO. 91- 391882, OF OFFICIAL RECORDS.
APN: 029-033-25
698/036753-0126
17796404.12 a11/10/22 EXHIBIT A-2
EXHIBIT A-2
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Legal Description of Triangle Lot/City Property
LAND REFERRED SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
LOT NINE (9) OF “THE JAMES C. ROUSE SUBDIVISION” IN THE CITY OF
FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 8, PAGE 37 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE CO., CALIF.
EXCEPTING THEREFROM THE FOLLOWING:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 9, RUNNING THENCE EAST 70 FEET;
THENCE NORTH 27 FEET;
THENCE WEST 70 FEET AND
THENCE SOUTH 27 FEET TO THE POINT OF BEGINNING AS GRANTED TO THE CITY OF FULLERTON IN DEED RECORDED MARCH 10, 1923 IN BOOK 459, PAGE 197 DEEDS.
TOGETHER WITH A 3.00 FOOT STRIP OF ELLIS PLACE ADJACENT TO THE EAST 120
FEET ON THE SOUTH, ABANDONED BY RESOLUTION OF THE BOARD OF TRUSTEES OF THE CITY OF FULLERTON, ON MAY 29, 1923, WHICH WAS FURTHER VACATED BY ORDINANCE NO. 305 BY THE BOARD OF TRUSTEES OF THE CITY OF FULLERTON RECORDED FEBRUARY 4, 1937 IN BOOK 873, PAGE 113 OFFICIAL RECORDS AND SEPTEMBER 13, 1939 IN BOOK 1012, PAGE 248 OFFICIAL RECORDS.
APN: 029-032-21
698/036753-0126
17796404.12 a11/10/22
EXHIBIT C
-1-
EXHIBIT A-3
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Legal Description of Pomona Avenue/Agency Property
THE LAND SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
LOT 5 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-06
PARCEL B:
LOT 6 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-05
PARCEL C:
LOT 7 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-04
PARCEL D:
LOT 8 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-03
698/036753-0126
17796404.12 a11/10/22 EXHIBIT A-3
EXHIBIT A-4
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Legal Description and Depiction of Vacated Portion of Ellis Place
THE LAND SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
[METES AND BOUNDS DESCRIPTION TO FOLLOW]
PARCEL B:
THE NORTH 20.00 FEET OF THE EAST 140.00 FEET EXCEPT THE SOUTH 2.00 FEET OF SAID NORTH 20.00 FEET OF THE EAST 75.00 FEET OF LOT 1 OF THE CENTRAL
ADDITION IN THE CITY OF FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SAME IS SHOWN ON A MAP RECORDED IN BOOK 7, PAGES 7 AND 8 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
TOGETHER WITH ALL THAT PORTION OF SAID LOT 1 LYING NORTHWESTERLY OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF SAID NORTH 20.00 FEET WITH THE EAST LINE OF THE WEST 10.00 FEET; THENCE, ALONG SAID SOUTH LINE EASTERLY 12.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE, IN A DIRECT LINE SOUTHWESTERLY TO A POINT IN SAID EAST LINE OF THE WEST 10.00 FEET DISTANT ALONG SAID EAST LINE SOUTHERLY 12.00 FEET FROM THE POINT OF BEGINNING SAID POINT BEING THE POINT OF ENDING.
APN: 029-033-24
698/036753-0126
17796404.12 a11/10/22
EXHIBIT C
-2-
DEPICTION OF VACATED PORTION OF ELLIS PLACE
(attached)
698/036753-0126
17796404.12 a11/10/22 EXHIBIT B
EXHIBIT B
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Scope of Development
(attached)
EXHIBIT C
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Schedule of Performance
DDA Effective Date [_______________ To Be Inserted]
[DDA §§ 1.1.30 & 1.3]
Not To Exceed
Due Date
Open Escrow/Earnest Money
Deposited to Escrow
Within 1-week from Effective Date _____-___-2022
Due Diligence Period Commences Opening of Escrow
_____-___-2022
Due Diligence Period Expires 30-Days from Effective Date _____-___-2022 Developer to use commercially
reasonable efforts to Obtain
Entitlements Based on Master
Application Form submitted
5/6/2022, as may be amended
30-Days prior to Close of Escrow
OR
10-Days prior to Outside Closing
Date, whichever is earlier
_____-___-2022
Close of Escrow Conditions Precedent Satisfied OR
10-Days from Expiration of Due
Diligence Period, not to exceed
Outside Closing Date
December 14,
2022, which may
be extended to
December 30,
2022
Submission of construction
drawings to City for plan check
12-36 months following Closing
Date
December 30,
2025
Commencement of Construction of
Project
18-42 months following Closing
Date
July 31, 2026
Construction of project 50%
Completion
no later than12 months following
commencement of construction
July 31, 2027
Completion of Construction of
Project
no later than 18 months following
commencement of construction, or
60 months following Closing Date,
whichever is earlier
December 31,
2027
Issuance of Certificate of
Completion
30 days after request from
Developer following completion of
construction of the Project or
component project as described in
Section 4.10
EXHIBIT D-1
EXHIBIT D-1
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Form of Grant Deed
[Triangle Lot/City Property]
(attached)
EXHIBIT D-1
-1-
Recording Requested By:
Ticor Title Company
Mail Tax Statement and
When Recorded Mail Document To:
FOX HARBOR LLC
c/o Frontier Real Estate Investments
31791 Los Rios Street
San Juan Capistrano, CA 92675
Attn: Dan Almquist
Order No.: 00838622-988-DN1
APN: 029-032-21, 029-033-24 & portions of 029-033-38 (Space above this Line for Recorder’s Use Only) The Undersigned Grantor Declares: DOCUMENTARY TRANSFER TAX $____.00; CITY TRANSFER TAX $0;
[ X ] computed on the consideration or full value of property conveyed, OR [ ] computed on the consideration or full value less value of liens and/or encumbrances remaining at time of sale,
[ ] unincorporated area; [X] City of Fullerton
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, TH E CITY OF FULLERTON, a California municipal corporation (“Grantor”), hereby grants to FOX HARBOR LLC, a California limited liability company (“Grantee”), that certain real property located in the City of Fullerton , County of Orange , State of California, specifically described in Exhibit “A” attached to this Grant Deed (“Property”) and made a part of this Grant Deed by this reference,
SUBJECT TO:
1. The terms and provisions of the Restrictive Covenant recorded concurrently herewith; and
2. The following covenants and agreements of Grantee running with the land in perpetuity and binding upon Grantee and its successors and assigns:
2.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Grantee, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Property.
2.2 All deeds, leases or contracts pertaining to the Property shall contain or be subject to substantially the following non-discrimination or non-segregation covenants:
EXHIBIT D-1
-2-
2.1.1 In deeds: “The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub- tenants, sub-lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”
2.1.2 In leases: “The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub- lessee, sub-tenants, or vendees in the premises herein leased.”
2.1.3 In contracts: “There shall be no discrimination against or segregat ion of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub -lessees, sub -tenants, or vendees of the premises herein transferred.” The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument.
IN WITNESS WHEREOF, the Grantor has caused this Grant Deed to be executed by its authorized representative(s) on this ____ day of _____________, 2022.
GRANTOR:
THE CITY OF FULLERTON
a California municipal corporation
By: ___________________________
City Manager
EXHIBIT D-1
-3-
ACKNOWLEDGMENT
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 ORANGE )
On ______________, 2022, before me, ____________________________, a Notary Public, personally appeared ______________________________, 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 ______________________________
ACCEPTANCE BY GRANTEE:
Grantee hereby accepts the foregoing Grant Deed and all terms and provisions thereof.
GRANTEE:
FOX HARBOR LLC, a California limited liability company
By: _________________________
Dan Almquist, Manager
EXHIBIT D-1
-4-
ACKNOWLEDGMENT
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 ORANGE )
On ______________, 2022, before me, ___________________, a Notary Public, personally appeared DAN M. ALMQUIST, 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 ______________________________
EXHIBIT D-1
-5-
EXHIBIT A
TO
GRANT DEED
Legal Description of Triangle Lot/City Property
THE LAND REFERRED SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL A:
LOT NINE (9) OF “THE JAMES C. ROUSE SUBDIVISION” IN THE CITY OF
FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 8, PAGE 37 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE CO., CALIF.
EXCEPTING THEREFROM THE FOLLOWING:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 9, RUNNING THENCE EAST 70 FEET;
THENCE NORTH 27 FEET;
THENCE WEST 70 FEET AND
THENCE SOUTH 27 FEET TO THE POINT OF BEGINNING AS GRANTED TO THE CITY OF FULLERTON IN DEED RECORDED MARCH 10, 1923 IN BOOK 459, PAGE 197 DEEDS.
TOGETHER WITH A 3.00 FOOT STRIP OF ELLIS PLACE ADJACENT TO THE EAST 120
FEET ON THE SOUTH, ABANDONED BY RESOLUTION OF THE BOARD OF TRUSTEES OF THE CITY OF FULLERTON, ON MAY 29, 1923, WHICH WAS FURTHER VACATED BY ORDINANCE NO. 305 BY THE BOARD OF TRUSTEES OF THE CITY OF FULLERTON RECORDED FEBRUARY 4, 1937 IN BOOK 873, PAGE 113 OFFICIAL RECORDS AND SEPTEMBER 13, 1939 IN BOOK 1012, PAGE 248 OFFICIAL RECORDS.
APN: 029-032-21
EXHIBIT D-1
-1-
EXHIBIT D-2
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Form of Grant Deed
[Pomona Avenue/Agency Property]
(attached)
EXHIBIT D-2
EXHIBIT D-2
-2-
Recording Requested By:
Ticor Title Company
Mail Tax Statement and
When Recorded Mail Document To:
FOX HARBOR LLC
c/o Frontier Real Estate Investments
31791 Los Rios Street
San Juan Capistrano, CA 92675
Attn: Dan Almquist
Order No.: 00838625-988-DN1
APN: 029-033-03 through 06 (Space above this Line for Recorder’s Use Only) The Undersigned Grantor Declares: DOCUMENTARY TRANSFER TAX $_____; CITY TRANSFER TAX $0; [ X ] computed on the consideration or full value of property conveyed, OR [ ] computed on the consideration or full value less value of liens and/or encumbrances remaining at time of sale,
[ ] unincorporated area; [X] City of Fullerton
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, TH E
CITY OF FULLERTON IN ITS CAPACITY AS THE SUCCESSOR AGENCY TO THE FULLERTON REDEVELOPMENT AGENCY, a public body, corporate and politic (“Grantor”), hereby grants to FOX HARBOR LLC , a California limited liability company (“Grantee”), that certain real property located in the City of Fullerton, County of Orange, State of California, specifically described in Exhibit “A” attached to this Grant Deed (“Property”) and made a part of this Grant Deed by this reference,
SUBJECT TO:
1. The terms and provisions of the Restrictive Covenant recorded concurrently herewith; and
2. The following covenants and agreements of Grantee running with the land in perpetuity and binding upon Grantee and its successors and assigns:
2.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Grantee, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Property.
2.2 All deeds, leases or contracts pertaining to the Property shall contain or be subject to substantially the following non-discrimination or non-segregation covenants:
EXHIBIT D-2
EXHIBIT D-2
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2.1.1 In deeds: “The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub- tenants, sub-lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”
2.1.2 In leases: “The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protecte d class as established by federal, state, or local law, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permi t any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub- lessee, sub-tenants, or vendees in the premises herein leased.”
2.1.3 In contracts: “There shal l be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub -lessees, sub -tenants, or vendees of the premises herein transferred.” The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument.
IN WITNESS WHEREOF, the Grantor has caused this Grant Deed to be executed by its authorized representative(s) on this ____ day of _____________, 2022.
GRANTOR:
CITY OF FULLERTON IN ITS CAPACITY AS
SUCCESSOR AGENCY TO THE FULLERTON
REDEVELOPMENT AGENCY , a public body,
corporate and politic
By: ___________________________
Executive Director
EXHIBIT D-2
EXHIBIT D-2
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ACKNOWLEDGMENT
A notary public or other offi cer 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 ORANGE )
On ______________, 2022, before me, ___________________________, a Notary Public, personally appeared ______________________________, 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 ______________________________
ACCEPTANCE BY GRANTEE:
Grantee hereby accepts the foregoing Grant Deed and all terms and provisions thereof.
GRANTEE:
FOX HARBOR LLC, a California limited liability company
By: _________________________
Dan Almquist, Manager
EXHIBIT D-2
EXHIBIT D-2
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ACKNOWLEDGMENT
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 ORANGE )
On ______________, 2022, before me, ______________________, a Notary Public, personally appeared DAN M. ALMQUIST, 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 ______________________________
(ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED)
EXHIBIT D-2
EXHIBIT D-2
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EXHIBIT A
TO
GRANT DEED
Property Legal Description
Pomona Avenue/Agency Property
THE LAND SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
LOT 5 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-06
PARCEL B:
LOT 6 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-05
PARCEL C:
LOT 7 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-04
PARCEL D:
LOT 8 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-03
[end of legal description]
EXHIBIT D-3
EXHIBIT D-3
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Form of Grant Deed
[Vacated Portion of Ellis Place]
(attached)
EXHIBIT D-3
Recording Requested By:
Ticor Title Company
Mail Tax Statement and
When Recorded Mail Document To:
FOX HARBOR LLC
c/o Frontier Real Estate Investments
31791 Los Rios Street
San Juan Capistrano, CA 92675
Attn: Dan Almquist
Order No.: 00838622-988-DN1
APN: 029-032-21, 029-033-24 & portions of 029-033-38 (Space above this Line for Recorder’s Use Only) The Undersigned Grantor Declares: DOCUMENTARY TRANSFER TAX $_____.00; CITY TRANSFER TAX $0;
[ X ] computed on the consideration or full value of property conveyed, OR [ ] computed on the consideration or full value less value of liens and/or encumbrances remaining at time of sale,
[ ] unincorporated area; [X] City of Fullerton
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, TH E CITY OF FULLERTON, a California municipal corporation (“Grantor”), hereby grants to FOX HARBOR LLC, a California limited liability company (“Grantee”), that certain real property located in the City of Fullerton , County of Orange , State of California, specifically described in Exhibit “A” attached to this Grant Deed (“Property”) and made a part of this Grant Deed by this reference,
SUBJECT TO:
1. The terms and provisions of the Restrictive Covenant recorded concurrently herewith; and
2. The following covenants and agreements of Grantee running with the land in perpetuity and binding upon Grantee and its successors and assigns:
2.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall Grantee, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Property.
2.2 All deeds, leases or contracts pertaining to the Property shall contain or be subject to substantially the following non-discrimination or non-segregation covenants:
EXHIBIT D-3
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2.1.1 In deeds: “The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any ot her protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub- tenants, sub-lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”
2.1.2 In leases: “The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That t here shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub- lessee, sub-tenants, or vendees in the premises herein leased.”
2.1.3 In contracts: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, ancestry, or any other protected class as established by federal, state, or local law, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub -lessees, sub -tenants, or vendees of the premises herein transferred.” The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument.
IN WITNESS WHEREOF, the Grantor has caused this Grant Deed to be executed by its authorized representative(s) on this ____ day of _____________, 2022.
GRANTOR:
THE CITY OF FULLERTON
a California municipal corporation
By: ___________________________
City Manager
EXHIBIT D-3
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ACKNOWLEDGMENT
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 ORANGE )
On ______________, 2022, before me, ____________________________, a Notary Public, personally appeared ______________________________, 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 ______________________________
ACCEPTANCE BY GRANTEE:
Grantee hereby accepts the foregoing Grant Deed and all terms and provisions thereof.
GRANTEE:
FOX HARBOR LLC, a California limited liability company
By: _________________________
Dan Almquist, Manager
EXHIBIT D-3
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ACKNOWLEDGMENT
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 attach ed, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
On ______________, 2022, before me, _______________________, a Notary Public, personally appeared DAN M. ALMQUIST, 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 ______________________________
EXHIBIT D-3
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EXHIBIT A
Legal Description of Vacated Portion of Ellis Place
PARCEL A:
THAT PORTION OF ELLIS PLACE AS ABANDONED BY RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF FULLERTON, A COPY OF WHICH WAS RECORDED ________, 202_ AS INSTRUMENT NO. 202 _________ OF OFFICIAL RECORDS, MORE
PARTICULARLY DESCRIBED
AS:___________________________________________________________________.
PARCEL B:
THE NORTH 20.00 FEET OF THE EAST 140.00 FEET EXCEPT THE SOUTH 2.00 FEET OF SAID NORTH 20.00 FEET OF THE EAST 75.00 FEET OF LOT 1 OF THE CENTRAL
ADDITION IN THE CITY OF FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SAME IS SHOWN ON A MAP RECORDED IN BOOK 7, PAGES 7 AND 8 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
TOGETHER WITH ALL THAT PORTION OF SAID LOT 1 LYING NORTHWESTERLY OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF SAID NORTH 20.00 FEET WITH THE EAST LINE OF THE WEST 10.00 FEET; THENCE, ALONG SAID SOUTH LINE EASTERLY 12.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE, IN A DIRECT LINE SOUTHWESTERLY TO A POINT IN SAID EAST LINE OF THE WEST 10.00 FEET DISTANT ALONG SAID EAST LINE SOUTHERLY 12.00 FEET FROM THE POINT OF BEGINNING SAID POINT BEING THE POINT OF ENDING.
APN: 029-033-24
[end of Legal Description for Vacated Portion of Ellis Place]
EXHIBIT D-4
EXHIBIT D-4
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Form of Developer Easements Grant
(attached)
EXHIBIT D-4
[FORM OF DEVELOPER EASEMENTS GRANT
TO BE COMPLETED BY END OF DUE DILIGENCE PERIOD]
EXHIBIT D-4
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IN WITNESS WHEREOF, the Grantor has caused this Grant of Easements to be executed by its authorized representative(s) on this ____ day of _____________, 202_.
GRANTOR:
THE CITY OF FULLERTON
a California municipal corporation
By: ___________________________
City Manager
ACKNOWLEDGMENT
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 ORANGE )
On ______________, 202_, before me, ____________________________, a Notary Public, personally appeared ______________________________, 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 ______________________________
EXHIBIT D-4
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ACCEPTANCE BY GRANTEE:
Grantee hereby accepts the foregoing Grant Deed and all terms and provisions thereof.
GRANTEE:
FOX HARBOR LLC, a California limited liability company
By: _________________________
Dan Almquist, Manager
EXHIBIT D-4
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ACKNOWLEDGMENT
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 truthfu lness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
On ______________, 2022, before me, ____________________________, a Notary Public, personally appeared DAN M. ALMQUIST, 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 ______________________________
EXHIBIT D-4
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EXHIBIT A
TO
GRANT DEED
Description of
Developer Easements
PARCEL __:
A PERPETUAL EXCLUSIVE EASEMENT APPURTENANT TO PARCELS A AND B
ABOVE AND THE LAND DESCRIBED IN EXHIBIT B HERETO (COLLECTIVELY, “GRANTEE’S LAND”) FOR THE CONSTRUCTION, USE, MAINTENANCE, REPAIR AND
REPLACEMENT OF TRASH ENCLOSURES ON THE FOLLOWING DESCRIBED AREAS
TOGETHER WITH ALL RIGHTS OF ACCESS FOR THE USE AND ENJOYMENT
THEREOF AND THE RIGHT TO PLANT, MAINTAIN, IRRIGATE, CULTIVATE AND
REPLACE LANDSCAPING AROUND SUCH TRASH ENCLOSURES AND INSTALL,
MAINTAIN, OPERATE, USE, REPAIR AND REPLACE SUCH UTILITIES, WATER LINES,
HOSE BIBS, BACKFLOW PREVENTERS, LIGHTING FACILITIES, SCREENING,
SECURITY MEASURES AND OTHER FACILITIES AS MAY BE CONVENIENT TO THE FOREGOING:
[INSERT METES AND BOUNDS DESCRIPTION OF AREAS WHERE THE TRASH ENCLOSURES ARE TO BE LOCATED AS WELL AS A DEPICTION THEREOF] PARCEL __:
A PERPETUAL EXCLUSIVE EASEMENT APPURTENANT TO GRANTEE’S LAND FOR
THE CONSTRUCTION, USE, MAINTENANCE, R EPAIR AND REPLACEMENT OF A
STAIRCASE, WALKWAY, COVERED BALCONY RUN/WALKWAY WITH FOOTINGS
AND COLUMNS AND ALL RELATED FACILITIES ON, OVER, ABOVE AND ACROSS
THE FOLLOWING DESCRIBED AREA TOGETHER WITH ALL RIGHTS OF ACCESS FOR
THE USE AND ENJOYMENT THEREOF AND THE RIGHT TO PLANT, MAINTAIN,
IRRIGATE, CULTIVATE AND REPLACE LANDSCAPING ON AND AROUND SUCH
AREA AND INSTALL, MAINTAIN, OPERATE, USE, REPAIR AND REPLACE UTILITIES
AND FACILITIES AS MAY BE CONVENIENT TO THE FOREGOING (INCLUDING BUT
NOT LIMITED TO TRANSFOR MERS, WATER METERS, GAS METERS, STORMWATER
TREATMENT OR RETENTION, WATER LINES, HOSE BIBS, BACKFLOW PREVENTERS, LIGHTING, SCREENING AND SECURITY MEASURES):
[INSERT METES AND BOUNDS DESCRIPTION OF AREA NEEDED FOR THE ABOVE IMPROVEMENTS AS WELL AS A DEPICTION THEREOF]
PARCEL F:
A PERPETUAL EASEMENT APPURTENANT TO GRANTEE’S LAND FOR PEDESTRIAN
AND VEHICULAR INGRESS, EGRESS AND CIRCULATION, LOADING AND
UNLOADING AREAS, DIRECTIONAL SIGNS, AND THE CONSTRUCTION, USE,
EXHIBIT D-4
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MAINTENANCE, REPAIR AND REPLACEMENT OF A CUL -DE-SAC ON ELLIS PLACE ON, OVER, ABOVE AND ACROSS THE FOLLOWING DESCRIBED LAND:
UNIT 4 AND UNIT 5, AS SHOWN AND DEFINED IN THE CONDOMINIUM PLAN RECORDED JANUARY 27, 2011 AS INSTRUMENT NO. 2011000050999 OF OFFICIAL RECORDS, AFFECTING THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 2009 -138,
IN THE CITY OF FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, P ER THE MAP FILED IN BOOK 370, PAGES 44 THROUGH 47 INCLUSIVE OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
[end of Description for Developer Easements]
EXHIBIT D-4
EXHIBIT E
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Form of Restrictive Covenants for Triangle Lot/City Property and Pomona Avenue/Agency Property
(Attached)
EXHIBIT F
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
The City of Fullerton
303 W. Commonwealth Avenue
Fullerton, CA 92832
Attention: City Manager
APN: 029-032-21 Exempt from Recording fee pursuant to Gov’t Code § 27383
RESTRICTIVE COVENANT
Disposition and Development Agreement
(Fox Block Commercial Project-Triangle Lot/City Property)
This RESTRICTIVE COVENANT (“Covenant”) is made on December __, 2022, by FOX HARBOR LLC, a California limited liability company (“Owner”), for the benefit of the CITY OF FULLERTON (“City”), a California municipal corporation, or assignee, as beneficiary, whose business address is 303 W. Commonwealth Avenue, Fullerton, CA 92832, restricting certain real property described in Exhibit “A” attached hereto (the “Property ”). This Covenant is made in connection with that certain Disposition and Development Agreement (Fox Block Commercial & Retail Project) dated as of ____ __, 2022 (“ Agreement”) by and between , NFRED, LLC , predecessor-in-interest and an Affiliate of Owner, City and City in its capacity as the successor agency to the FULLERTON REDEVELOPMENT AGENCY, a public body, corporate and politic (“Agency”). A copy of the Agreement is on file with City and is available for inspection and copying by interested persons as a public record of City at City’s offices located at 303 W.
Commonwealth Avenue, Fullerton, CA 92832, during City’s regular business hours. This Covenant serves as a recorded notice that the Property is subject to and governed by the Agreement, which is incorporated herein to this Covenant by this reference. Capitalized terms used herein without definition shall have the meanings given them in the Agreement.
1. Development Covenant. Owner, in consideration of the sale of the Property to Owner, hereby irrevocably covenants, on behalf of itself and all of its successors and assigns, that, other than as delayed or prevented by an Unavoidable Delay, it shall substantially complete construction of the portion of the Project on the Property and receive a C ertificate of Completion for such portion of the Project no later than the Project Completion Date, as set forth in the Agreement .
The Project Completion Date shall be subject to extensions as provided in the Agreement . The provisions of this Section 1 shall terminate as to the Property upon issuance of a Certificate of Completion with respect to the Property.
2. Uses. Owner, in consideration of the sale of the Property to Owner, hereby irrevocably covenants, for a period of ten (10) years, on behalf of itself and all of its successors and assigns, that the Property shall be used for purposes consistent with Commercial Component Project as set forth in the Agreement, including, without limitation retail, restaurants, brewery, office, on-stage entertainment, including music and standup comedy, and full liquor bar . A t no time shall the following uses be permitted on the Property:
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2.1 Any and all “adult businesses” as defined in Fullerton Municipal Code Section 7.95.010 or any other development or use requiring or subject to the Adult Use Development Permit set forth in Chapter 7.95 (or successor provisions) in the Fullerton Municipal Code;
2.2 Any and all schools, whether public or private, and including trade and vocational schools except for administrative offices in connection with such schools; and/or
2.3 Massage parlor (provided that nationally recognized massage chains such as Massage Envy are acceptable uses).
3. Maintenance Covenants. Owner, in consideration of the sale of the Property to Owner, hereby irrevocably covenants, on behalf of itself and all of its successors and assigns, that:
(a) Maintenance of Property. The areas of the Property that are subject to public view (including all existing and future improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted and subject to water use restrictions. If there is an occurrence of an adverse condition on any area of the Property that is subject to public view in contravention of the general maintenance standard described above (a “Maintenance Deficiency”), then City shall notify Owner in writing of the Maintenance Deficiency specifying the Maintenance Deficiencies and the actions required to be taken by Owner to cure the Maintenance Deficiencies. Owner shall cure the Maintenance Deficiency within thirty (30) days of its receipt of notice of the Maintenance Deficiency or if the Maintenance Deficiency is of a nature that reasonably takes more than thirty (30) days to cure, then Owner shall commence to cure the Maintenance Deficiency within thirty (30) days of its receipt of notice of the Maintenance Deficiency and thereafter diligently pursue the cure of the Maintenance Deficiency. In addition to the foregoing obligations of Owner, Owner shall remove any graffiti (as defined in Government Code Section 38772) that has been applied to any exterior surface of a structure or improvement on the Propert y that is visible from any public right-of-way adjacent or contiguous to the Property by either painting over the graffiti with a paint that has been color-matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate. A ny such graffiti shall be removed by Owner within five (5) rain free business days following the time of the discovery of the graffiti by Owner.
(b) City Right to Cure. If Owner fails to correct, remedy, or cure or has not commenced correcting, remedying or curing the Maintenance Deficiency or removed the graffiti after the period for correction has lapsed, then City shall have the right to enter the Property and perform all acts necessary to cure the Maintenance Deficiency or remove the Graffiti. Owner agrees to pay City upon written demand such reasonable, documented, out-of-pocket charges and costs incurred by City in curing such Maintenance Deficiency or removing the graffiti. Owner shall be liable for any and all reasonable attorneys’ fees, and other legal costs or fees incurred by City in collecting such costs to cure the Maintenance Deficiency or remove the graffiti.
(c) Lien for Costs. Until the costs incurred by City pursuant to Section 3(b) above have been paid, City shall have a lien on the Property and on no other portion of the Project for the amount of such charges or costs, which lien may be perfected by the recordation of "Notice of
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Claim of Lien" against the Property. Upon recordation of a Notice of a Claim of Lien against the Property, such lien shall constitute a lien on the fee estate in and to the Property prior and superior to all other monetary liens except: (i) all taxes, bonds, assessments, and other levies which, by law, would be superior thereto and (ii) the lien or charge of any Deed of Trust securing a Loan then of record, it being understood that the priority of any such lien in favor of City shall date from the date of the recordation of the Notice of Claim of Lien. Any such Notice of Claim of Lien shall be subject and subordinate to any lease or sublease of the interest of Owner in the Property or any portion thereof and to any easement affecting the Property or any portion thereof entered into at any time (either before or after) the date of recordation of the Notice of Claim of Lien.
(d) Enforcement of Lien. Any lien created pursuant to this Section 3 may be enforced in any manner permitted by law, including judicial foreclosure or non- judicial foreclosure. Any non-judicial foreclosure shall be conducted by the trustee named in the Notice of Claim of Lien or by a trustee substituted pursuant to Section 2934a of the California Civil Code, in accordance with the provisions of Sections 2924, 2924b and 2924c of the California Civil Code. If the sums specified in the Notice of Claim of Lien are paid before the completion of any judicial or non - judicial foreclosure, City shall promptly record a notice of satisfaction and release of the lien.
Upon receipt of a written request by Owner, City shall also promptly record a notice of rescission of the Notice of Claim of Lien. Upon foreclosure of any mortgage or deed of trust recorded prior to the recordation of any Notice of Claim of Lien, the foreclosure -purchaser shall take title to the Property free of any lien imposed by City that has accrued up to the time of the foreclosure sale, and upon taking title to the Property , such foreclosure -purchaser shall only be obligated to pay reasonable, documented, out-of-pocket charges and costs to cure any Maintenance Deficiency or cost of graffiti removal to the extent such charges and costs are incurred by City after the foreclosure-purchaser acquires title to the Property.
4. Default.
(a) Development Covenant. If Owner defaults in its obligations under Section 1 of this Covenant, then City shall have the right to obtain injunctive relief to enforce such obligations under Section 1 in addition to any applicable rights and remedies set forth in the Agreement.
(b) Use Restrictions . I f Owner defaults in its obligations under S ection 2 of this Covenant (subject to notice and reasonable opportunity to cure), then C ity shall be entitled to pursue the rights and remedies set forth in the Agreement.
(c) Maintenance Covenants. If Owner defaults in its obligations under Section 3 of this Covenant, City s hall have the rights provided in such Section 3 of this Covenant and rights and remedies set forth in the Agreement.
5. Term. This Covenant shall terminate by its own terms and be of no further force and effect ten (10) years after the date of recordation of the Certificate of Completion for the Project developed on the Property, as set forth in the Agreement.
[signatures on next page]
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This Covenant is dat ed as of _________________, 2022, and has been executed on behalf of Owner and the City by and through the signatures of their authorized representative(s) set forth below. This Covenant may be executed in counterparts and when fully executed each counterpart shall be deemed to be one original instrument.
CITY:
THE CITY OF FULLERTON
a California municipal corporation
Dated: _________________, 2022 By: _______________________________ City Manager
ATTEST:
____________________________
City Clerk
APPROVED AS TO LEGAL FORM:
RUTAN & TUCKER, LLP
By: _______________________
Special Counsel
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DEVELOPER:
FOX HARBOR LLC, a California limited liability
company
Dated: _____________________ By: _________________________ Dan Almquist, Manager
(ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED)
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EXHIBIT A
TO
RESTRICTIVE COVENANT
Legal Description of Triangle Lot/City Property
THE LAND REFERRED SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
LOT NINE (9) OF “THE JAMES C. ROUSE SUBDIVISION” IN THE CITY OF
FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 8, PAGE 37 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE CO., CALIF.
EXCEPTING THEREFROM THE FOLLOWING:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 9, RUNNING THENCE EAST 70 FEET;
THENCE NORTH 27 FEET;
THENCE WEST 70 FEET AND
THENCE SOUTH 27 FEET TO THE POINT OF BEGINNING AS GRANTED TO THE CITY OF FULLERTON IN DEED RECORDED MARCH 10, 1923 IN BOOK 459, PAGE 197 DEEDS.
TOGETHER WITH A 3.00 FOOT STRIP OF ELLIS PLACE ADJACENT TO THE EAST 120
FEET ON THE SOUTH, ABANDONED BY RESOLUTION OF THE BOARD OF TRUSTEES OF THE CITY OF FULLERTON, ON MAY 29, 1923, WHICH WAS FURTHER VACATED BY ORDINANCE NO. 305 BY THE BOARD OF TRUSTEES OF THE CITY OF FULLERTON RECORDED FEBRUARY 4, 1937 IN BOOK 873, PAGE 113 OFFICIAL RECORDS AND SEPTEMBER 13, 1939 IN BOOK 1012, PAGE 248 OFFICIAL RECORDS.
APN: 029-032-21
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RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
The City of Fullerton
303 W. Commonwealth Avenue
Fullerton, CA 92832
Attention: City Manager
APN: 029-033-03, 029-033-04, 029-033-05, and 029-033-06 Exempt from Recording fee pursuant to Gov’t Code § 27383
RESTRICTIVE COVENANT
Disposition and Development Agreement
(Fox Block Parking Area Component - Pomona Avenue/Agency Property)
This RESTRICTIVE COVENANT (“ Covenant”) is made on December __, 2022, by FOX HARBOR LLC, a California limited liability company (“ Owner”) as successor-in-interest and Affiliate of NFRED, LLC , for the benefit of CITY OF FULLERTON (“ City”), a California municipal corporation, also acting in its capacity as the successor agency to the FULLERTON REDEVELOPMENT AGENCY, a public body, corporate and politic (“Agency”), or assignee, as beneficiary, whose business address is 303 W. Commonwealth Avenue , Fullerton, CA 92832, restricting certain real property described in Exhibit “A” attached hereto (the “Property ”). This Covenant is made in connection with that certain Disposition and Development Agreement ( Fox Block Commercial & Retail Project) dated as of ____ __, 2022 (“ Agreement”) by and between Owner, City and Agency. A copy of the Agreement is on file with City and is available for inspection and copying by interested persons as a public record of City at City’s offices located at 303 W. Commonwealth Avenue, Fullerton, CA 92832, during City’s regular business hours. This Covenant serves as a recorded notice that the Property is subject to and governed by the Agreement, which is incorporated herein to this Covenant by this reference. Capitalized terms used herein without definition shall have the meanings given them in the Agreement.
1. Use. Owner, in consideration of the sale of the Property to Owner, hereby covenants, for a period of no less than ten (10) years, on behalf of itself and all of its successors and assigns, that the Property shall be used as a parking area for use, on a fee basis at Owner’s discretion, for short and long term parking available to the public, and shall not restrict the use of any such spaces to or for the benefit of the owners and/or occupants of any other real property, as set forth in the Agreement.
2. Use Restrictions. At no time shall the following uses be permitted on the Property:
2.1 Any and all “adult businesses” as defined in Fullerton Municipal Code Section 7.95.010 or any other development or use requiring or subject to the Adult Use Development Permit set forth in Chapter 7.95 (or successor provisions) in the Fullerton Municipal Code;
2.2 Any and all schools, whether public or private, and including trade and vocational schools except for administrative offices in connection with such schools; and/or
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2.3 Massage parlor (provided that nationally recognized massage chains such as Massage Envy are acceptable uses).
3. Maintenance Covenants. Owner, in consideration of the sale of the Property to Owner, hereby irrevocably covenants, on behalf of itself and all of its successors and assigns, that:
(a) Maintenance of Property. The areas of the Property that are subject to public view (including all existing and future improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted and subject to water use restrictions. If there is an occurrence of an adverse condition on any area of the Property that is subject to public view in contravention of the general maintenance standard described above (a “Maintenance Deficiency”), then City shall notify Owner in writing of the Maintenance Deficiency specifying the Maintenance Deficiencies and the actions required to be taken by Owner to cure the Maintenance Deficiencies. Owner shall cure the Maintenance Deficiency within thirty (30) days of its receipt of notice of the Maintenance Deficiency or if the Maintenance Deficiency is of a nature that reasonably takes more than thirty (30) days to cure, then Owner shall commence to cure the Maintenance Deficiency within thirty (30) days of its receipt of notice of the Maintenance Deficiency and thereafter diligently pursue the cure of the Maintenance Deficiency. In addition to the foregoing obligations of Owner, Owner shall remove any graffiti (as defined in Government Code Section 38772) that has been applied to any exterior surface of a structure or improvement on the Property that is visible from any public right-of-way adjacent or contiguous to the Property by either painting over the graffiti with a paint that has been color-matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate. Any such graffiti shall be removed by Owner within five (5) rain free business days following the time of the discovery of the graffiti by Owner.
(b) City Right to Cure. If Owner fails to correct, remedy, or cure or has not commenced correcting, remedying or curing the Maintenance Deficiency or removed the graffiti after the period for correction has lapsed, then City shall have the right to enter the Property and perform all acts necessary to cure the Maintenance Deficiency or remove the Graffiti. Owner agrees to pay City upon written demand such reasonable, documented, out-of-pocket charges and costs incurred by City in curing such Maintenance Deficiency or removing the graffiti. Owner shall be liable for any and all reasonable attorneys’ fees, and other legal costs or fees incurred by City in collecting such costs to cure the Maintenance Deficiency or remove the graffiti.
(c) Lien for Costs. Until the costs incurred by City pursuant to Section 3(b) above have been paid, City shall have a lien on the Property and on no other portion of the Project for the amount of such charges or costs, which lien may be perfected by the recordation of "Notice of Claim of Lien" against the Property. Upon recordation of a Notice of a Claim of Lien against the Property, such lien shall constitute a lien on the fee estate in and to the Property prior and superior to all other monetary liens except: (i) all taxes, bonds, assessments, and other levies which, by law, would be superior thereto and (ii) the lien or charge of any Deed of Trust securing a Loan then of record, it being understood that the priority of any such lien in favor of City shall date from the date of the recordation of the Notice of Claim of Lien. Any such Notice of Claim of Lien shall be subject and subordinate to any lease or sublease of the interest of Owner in the Property or any
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portion thereof and to any easement affecting the Property or any portion thereof entered into at any time (either before or after) the date of recordation of the Notice of Claim of Lien.
(d) Enforcement of Lien. Any lien created pursuant to this Section 3 may be enforced in any manner permitted by law, including judicial foreclosure or non- judicial foreclosure. Any non-judicial foreclosure shall be conducted by the trustee named in the Notice of Claim of Lien or by a trustee substituted pursuant to Section 2934a of the California Civil Code, in accordance with the provisions of Sections 2924, 2924b and 2924c of the California Civil Code. If the sums specified in the Notice of Claim of Lien are paid before the completion of any judicial or non - judicial foreclosure, City shall promptly record a notice of satisfaction and release of the lien.
Upon receipt of a written request by Owner, City shall also promptly record a notice of rescission of the Notice of Claim of Lien. Upon foreclosure of any mortgage or deed of trust recorded prior to the recordation of any Notice of Claim of Lien, the foreclosure -purchaser shall take title to the Property free of any lien imposed by City that has accrued up to the time of the foreclosure sale, and upon taking title to the Property , such foreclosure -purchaser shall only be obligated to pay reasonable, documented, out-of-pocket charges and costs to cure any Maintenance Deficiency or cost of graffiti removal to the extent such charges and costs are incurred by City after the foreclosure-purchaser acquires title to the Property.
4. Default.
(a) Development Covenant. then C ity shall have the right to obtain injunctive relief to enforce such obligations under Section 1 in addition to any applicable rights and remedies set forth in the Agreement.
(b) Use Restrictions . If Owner defaults in its obligations under S ection 2 of this Covenant (subject to notice and r easonable opportunity to cure), then C ity shall be entitled to pursue the rights and remedies set forth in the Agreement.
(c) Maintenance Covenants. If Owner defaults in its obligations under Section 3 of this Covenant, City s hall have the rights provided in such Section 3 of this Covenant and rights and remedies set forth in the Agreement.
5. Term. This Covenant shall terminate by its own terms and be of no further force and effect ten (10) years after the date of recordation of the Certificate of Completion for the Project developed on the Property, as set forth in the Agreement.
6. City as Third Party Beneficiary . The City is an expressed third party beneficiary of this Covenant and has the right, but not the obligation, to enforce compliance with its terms on behalf of the Agency.
[signatures on next page]
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This Covenant is dat ed as of _________________, 2022, and has been exe cuted on behalf of Owner and the City by and through the signatures of their authorized representative(s) set forth below. This Covenant may be executed in counterparts and when fully executed each counterpart shall be deemed to be one original instrument.
AGENCY:
CITY OF FULLERTON IN ITS CAPACITY AS
SUCCESSOR AGENCY TO THE FULLERTON
REDEVELOPMENT AGENCY,
a public body, corporate and politic
Dated: _________________, 2022 By: _______________________________ Executive Director
ATTEST:
____________________________
Secretary to the Board
APPROVED AS TO LEGAL FORM:
RUTAN & TUCKER, LLP
By: _______________________
Special Counsel
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DEVELOPER:
FOX HARBOR LLC, a California limited liability
company
Dated: _____________________ By: _________________________ Dan Almquist, Manager
(ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED)
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EXHIBIT A
TO
RESTRICTIVE COVENANT
Legal Description of Pomona Avenue/Agency Property
THE LAND SITUATED IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL A:
LOT 5 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-06
PARCEL B:
LOT 6 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-05
PARCEL C:
LOT 7 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-04
PARCEL D:
LOT 8 OF THE J.E. ELLIS SUBDIVISION, IN THE CITY OF FULLERTON, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 8, PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
APN: 029-033-03
[end of legal description]
EXHIBIT F
EXHIBIT F
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Form of Official Action of Developer
CERTIFICATION OF LLC AUTHORITY
The undersigned members of FOX HARBOR LLC, a California limited liability company (the “LLC”), do certify that we are all of the members of the LLC and that there are no other members.
We further certify that any one (1) of the following named persons, individually:
Dan Almquist, manager and Michael Burnett, Manager
be, and they are, authorized and empowered for and on behalf of and in the name of the LLC to execute and deliver that certain Disposition and Development Agreement (Fox Block Commercial & Retail Project), dated as of October______, 2022, between the City of Fullerton, a California municipal corporation ( “City”), the City of Fullerton in its capacity as the Successor Agency to the Fullerton Redevelopment Agency, a public body, corporate and politic (“Agency”), and the NFRED, LLC, predecessor interest to and an Affiliate of the LLC (the “Agreement”), to purchase certain real property located in the City of Fullerton, California, as specifically described in the Agreement, and all other documents to be executed by the LLC in connection with the transactions contemplated in the Agreement, and to take all actions that may be considered necessary to conclude the transactions contemplated in the Agreement and perform the other obligations of the LLC pursuant to the Agreement.
The authority conferred shall be considered retroactive, and any and all acts authorized in this document that were performed before the execution of this Certificate are approved and ratified. The authority conferred shall continue in full force and effect until the City and Agency shall have received notice in writing from the LLC of the revocation of this Certificate.
We further certify that the activities covered by the foregoing certifications constitute duly authorized activities of the LLC; that these certifications are now in full force and effect; and that there is no provision in any document under which the LLC is organized and/or that governs the LLC’s continued existence, limiting the power of the undersigned to make the certifications set forth in this certificate, and that such certifications are in conformity with the provisions of all such documents.
LLC Members:
____________________________
____________________________
698/036753-0126
17796404.12 a11/10/22 EXHIBIT G
EXHIBIT G
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Form of Certificate of Completion
(Attached Behind This Page)
698/036753-0126
17796404.12 a11/10/22
EXHIBIT G
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
________________________________
________________________________
________________________________
________________________________
Attention:
Exempt from Recording fee
pursuant to Gov’t Code § 27383
CITY OF FULLERTON
CERTIFICATE OF COMPLETION
(Fox Block Commercial & Retail Project)
I, ___________, City Manager of the City of Fullerton (the “City”) certify that:
By official action taken as the _____________, 2022 Regular [Special] Meeting of the Fullerton City Council, duly adopted and approved, the Council resolved:
Section 1. The Pr oject described as [______________________] required to be constructed in accordance with that certain Disposition and Development Agreement (Fox Block Commercial & Retail Project), dated _____________, 2022 (“DDA”), between the City and FOX HARBOR LLC, a California limited liability company (the “Developer”), on that certain real property specifically described in the legal description(s) attached to this Certificate of Completion as Exhibit A (the “Property”), is complete in accordance with the provisions of the Agreement.
This Certificate of Completion constitutes conclusive evidence of the City’s determination of Developer ’s satisfaction of its obligation under the Agreement to construct and install the Project on the Property (or portions of the Project and Property identified and described in Exhibit A), including any and all buildings, parking areas, landscaping areas and related improvements necessary to support or meet any requirements applicable to the Project and its use and occupancy on the Project, whether or not such improvements are located on or off the Property or on other property subject to the Agreement, excluding tenant improvements or other work by tenants necessary for the use and occupancy of the spaces leased by them and minor building “punch-list” items. Notwithstanding any provision of this Certificate of Completion, the City may enforce any covenant surviving this Certificate of Completion in accordance with the terms and conditions of the Agreement and the Grant Deed by which the Property was conveyed to Developer by the City under the Agreement. The Agreement is an official record of the City and a copy of the Agreement may be inspected at the City ’s office located at 303 W. Commonwealth Avenue, Fullerton, CA 92832, during the City’s regular business hours.
EXHIBIT G
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DATED AND ISSUED this _____ day of ______________, _____.
THE CITY OF FULLERTON,
a California municipal corporation
By: ___________________________
City Manager
EXHIBIT G
-3-
EXHIBIT A
TO
CERTIFICATE OF COMPLETION
Legal Description of the Property
EXHIBIT G
-4-
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 Orange )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/a re 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)
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 Orange )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
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)
698/036753-0126
17796404.12 a11/10/22
EXHIBIT H
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EXHIBIT H
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Form of Pipelines Easement Quitclaim
(Attached)
EXHIBIT I
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Form of CC&RS AMENDMENT
RECORDING REQUESTED BY
TICOR TITLE COMPANY
AND WHEN RECORDED
MAIL TO:
Fox Harbor LLC
c/o Frontier Real Estate Investments LLC
31791 Los Rios Street
San Juan Capistrano, CA 92675
Attn: Michael W. Burnett
[Space Above Line for Recorder’s Use Only]
FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND RESERVATION OF EASEMENTS FOR THE FOX THEATRE This FIRST AMENDMENT TO DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS AND RESERVATION OF EASEMENTS FOR THE FOX THEATRE (this “Amendment”) is executed as of this ___ day of _________, 202__ (the “Effective Date”) by and among FULLERTON HISTORIC THEATRE FOUNDATION, a California nonprofit corporation (the " Foundation"), THE CITY OF FULLERTON, a California municipal corporation (the “ City”), and the CITY OF FULLERTON IN ITS CAPACITY AS THE SUCCESSOR AGENCY TO THE FULLERTON REDEVELOPMENT AGENCY, a public body, corporate and politic (the “ Agency”). The Foundation, the City and the Agency collectively are referred to in this Amendment as the “Parties”.
RECITALS
A. Pursuant to that certain Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for the Fox Theatre (“ Declaration”) recorded on January 28, 2011, as Instrument No. 2011000052374 in the Official Records of Orange County, California, the Foundation and the FULLERTON REDEVELOPMENT AGENCY, a public body, corporate and politic established certain covenants, conditions, restrictions, easements and agreements for the “Project” as defined therein. Any capitalized words or phrases used and not otherwise expressly defined in this Amendment shall have the meaning ascribed to such capitalized words or phrases as set forth in the Declaration.
B. The legal description of the Project is attached hereto as EXHIBIT “A”.
EXHIBIT I
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C. The City is the Owner of the Parking Condominium Unit (UNIT 5) and the East Airspace Condominium Unit (UNIT 4). The City as the Owner of such Units desires to grant certain rights to Fox Harbor LLC, a California limited liability company (“ Fox Harbor ”), to develop and use portions of such Units as more particularly described in Section 2 below and defined therein as the “Fox Harbor Rights”.
D. The Fox Harbor Rights will be appurtenant to the real property more particularly described in EXHIBIT “B” attached hereto (the “Fox Harbor Property”).
E. The Parties constitute all of the Owners and all of the Members of the Association, and as such the Parties hold all of the Voting Power of the Association.
F. The Parties desire to hereby amend the Declaration as more particularly set forth below in this Amendment.
NOW, THEREFORE, for and in consideration of the covenants set forth herein and other good and value consideration, the Declaration is hereby amended as follows:
1. Effectiveness. This Amendment shall be effective as of the Effective Date set forth above.
2. A mendment . The last sentence of Section 2.1 of the Declaration is hereby deleted.
The following provision is hereby added to the Declaration: “The Parking Condominium Unit may be used for vehicular parking for use by the general public and Permittees, pedestrian and vehicular ingress, egress and circulation thereon, including access to and from parking facilities and the Fox Block Commercial Project to be constructed to the north of the Project at Harbor Boulevard and Ellis Place (the “ Fox Commercial Project ”), building areas, utilities, encroachments, ingress, egress, circulation, construction, support, maintenance, landscaping, securing, screening, lighting, irrigation, repair, replacement and beneficial use and enjoyment of those elements of the Fox Commercial Project as shown on the site plan attached hereto as EXHIBIT “C” or reasonably related thereto, including but not limited to a cul-de-sac on Ellis Place, loading and unloading areas, occasional short-term promotional events related to the permitted uses of the Condominiums set forth in the Declaration and/or the Fox Commercial Project, trash enclosures for exclusive use by the users, tenants and invitees of the Fox Commercial Project, any utilities (including but not limited to transformers, water meters, gas meters, stormwater treatment and/or retention) in connection with the Fox Commercial Project, and a covered balcony run/walkway with footings and columns and a staircase for the Fox Commercial Project, with all such rights in favor of the Fox Commercial Project to be memorialized by a recorded grant of easements in perpetuity from the Owner of the Parking Condominium Unit (UNIT 5) and the East Airspace Condominium Unit (UNIT 4) or in lieu of a grant of easements, either in whole or in part, such rights may be conveyed in fee by way of lot line adjustments and perfecting grant deeds (collectively, the “ Fox Harbor Rights”). No twithstanding anything to the contrary in the Declaration, no further consent or approval of any Member or Owner shall be required for the grant or other conveyance of the Fox Harbor Rights by the Owner of the Parking Condominium Unit (UNIT 5) and the East Airspace Condominium Unit (UNIT 4) to Fox Harbor LLC, a California limited liability company (“ Fox Harbor”), including without limitation any such conveyance that eliminates a portion of the Project for the purpose of creating or perfecting any of the Fox Harbor Rights.
EXHIBIT I
-3-
3. Common Area Easement. The Parties on their behalf and on behalf of the Association hereby grant and convey to Fox Harbor a perpetual easement appurtenant to Parcel 1 of the Fox Harbor Property for pedestrian ingress, egress and circulation, temporary construction, maintenance and repair purposes including placement and use of scaffolding on, over, above and across the Common Area adjoining Parcel 1 of the Fox Harbor Property.
4. Permitted Use. The use and enjoyment of the Fox Harbor Rights by Fox Harbor and its successors, assigns, invitees, tenants and the customers and employees of such tenants shall for all purposes be deemed to be a permitted use under the Declaration.
5. N
o Design Approval Required . Notwithstanding anything to the contrary in the Declaration, no review and/or approval of the design and/or construction of any improvements or other facilities by Fox Harbor in connection with the use and enjoyment of the Fox Harbor Rights, including without limitation any review and/or approval by any Member, Owner and/or Design Review Entity, shall be required.
6. N
o Assessment . Fox Harbor, the Fox Harbor Property and the Fox Harbor Rights shall not be subject to any form or type of Assessment pursuant to the Declaration.
7. Deemed Approval Under DDA. The Foundation irrevocably acknowledges and agrees that by joining in this Amendment any consent or approval in connection with the grant and/or conveyance to Fox Harbor of the Fox Harbor Rights and/or the easement in the Common Area pursuant to Section 3 above that may be required under the Disposition and Development Agreement between the Foundation and the Agency dated October 19, 2004, as amended by that certain First Amendment to Disposition and Development Agreement dated September 19, 2006, and by that certain Second Amendment to Disposition and Development Agreement dated August 4, 2009, including without limitation Section 8.2 of such Second Amendment to Disposition and Development Agreement is hereby deemed to have been given by the Foundation.
8. Third-Party Beneficiary. For the avoidance of doubt, Fox Harbor is an express third-party beneficiary of this Amendment.
9. C ontinued Effect of Declaration . All provisions of the Declaration, except as modified by this Amendment shall remain in full force and affect and are reaffirmed.
10. C onflict . In the event of any conflict, inconsistency, or incongruity between any provision of this Amendment and any provision of the Declaration, the provisions of this Amendment shall govern and control.
11. S
everability . Invalidation of any of the provisions contained in this Amendment, or of the application thereof to any person by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other person and the same shall remain in full force and effect.
12. G
overning Law . This Amendment shall be governed by the laws of the State of California.
EXHIBIT I
-4-
IN WITNESS WHEREOF, the Parties have duly executed this Declaration as of the Effective Date.
FOUNDATION:
FULLERTON HISTORIC THEATRE
FOUNDATION, a California nonprofit public
benefit corporation
By: ______________________________
Name: ____________________________
Title: President
[SIGNATURES ARE CONTINUED ON THE FOLLOWING PAGE]
EXHIBIT I
-5-
CITY:
THE CITY OF FULLERTON,
a California municipal corporation
By:________________________
City Manager
ATTEST:
____________________________
City Clerk
APPROVED AS TO LEGAL FORM:
RUTAN & TUCKER, LLP
By: _______________________
Special Counsel
AGENCY:
CITY OF FUL LERTON IN ITS CAPACITY AS
SUCCESSOR AGENCY TO THE FULLERTON
REDEVELOPMENT AGENCY
a public body, corporate and politic
By:
Executive Director
ATTEST:
____________________________
Secretary to the Board
APPROVED AS TO LEGAL FORM:
RUTAN & TUCKER, LLP
By: _______________________
Special Counsel
EXHIBIT I
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ACKNOWLEDGMENT
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 Orange )
On ___________, 2022, before me, __________________________________, Notary Public, personally
appeared _______________________________________, 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 authoriz ed 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)
EXHIBIT I
-7-
ACKNOWLEDGMENT
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 Orange )
On ___________, 2022, before me, __________________________________, Notary Public, personally
appeared _______________________________________, 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)
EXHIBIT I
-8-
ACKNOWLEDGMENT
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 Orange )
On ___________, 2022, before me, __________________________________, Notary Public, personally
appeared _______________________________________, 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)
EXHIBIT I
-9-
ACKNOWLEDGMENT
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 Orange )
On ___________, 2022, before me, __________________________________, Notary Public, personally
appeared _______________________________________, 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)
EXHIBIT I
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EXHIBIT “A”
LEGAL DESCRIPTION OF THE PROJECT
THE LAND SITUATED IN THE CITY OF FULLERTON, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
UNIT NOS. 1, 2, 3, 4 and 5 AS SHOWN AND DEFINED IN THE CONDOMINIUM PLAN RECORDED JANUARY 27, 2011 AS INSTRUMENT NO. 2011000050999 OF FICIAL RECORDS, AFFECTING THAT PORTION OF PARCEL 1 OF PARCEL MAP 2009-138, IN THE CITY OF FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, PER THE MAP FILED IN BOOK 370, PAGES 44 THROUGH 47 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 2:
AN UNDIVIDED 5/5THS INTEREST IN AND TO ALL THAT PORTION OF PARCEL 1 OF PARCEL MAP 2009- 138, IN THE CITY OF FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, PER THE MAP FILED IN BOOK 370, PAGES 44 THROUGH 47 INCLUSIVE OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY SHOWN AND DEFINED AS “COMMON AREA” ON THE CONDOMINIUM PLAN RECORDED JANUARY 27, 2011 AS INSTRUMENT NO. 2011000050999 OFFICIAL RECORDS.
PARCEL 3:
EASEMENTS AS SET FORTH IN SECTION 4.4 (“PERPETUAL EASEMENTS”) AND ARTICLE 5 (“DESCRIPTION OF COMMON INTERESTS, PROPERTY RIGHTS, RIGHTS OF ENJOYMENT AND EASEMENTS”) OF THAT CERTAIN DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OF EASEMENTS FOR THE FOX THEATRE, RECORDED JANUARY 28, 2011 AS INSTRUMENT NO. 2011000052374 OFFICIAL RECORDS (THE “DECLARATION”) IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL 4:
EASEMENTS FOR THE EXCLUSIVE RIGHT OF USE, POSSESSION AND OCCUPANCY OF THOSE PORTIONS OF PARCEL 2 ABOVE, DESIGNATED AS “EXCLUSIVE USE AREAS” AS DEFINED IN THE DECLARATION, WHICH SHALL BE APPURTENANT TO PARCELS 1 AND 2 ABOVE.
APN: 932-41-506, 932-41-507, 932-41-508, 932-41-509, 932-41-510
EXHIBIT I
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EXHIBIT “B”
LEGAL DESCRIPTION OF THE FOX HARBOR PROPERTY
THE LAND SITUATED IN THE CITY OF FULLERTON, IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
THE NORTH 100 FEET OF LOT 1 OF CENTRAL ADDITION, IN THE CITY OF
FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 7, PAGES 7 AND 8 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THE SOUTH 2 FEET THEREOF.
ALSO EXCEPT THEREFROM THAT PORTION CONVEYED TO THE FULLERTON REDEVELOPMENT AGENCY, AS SET FORTH AND DESCRIBED AS PARCEL 3 BY THAT CERTAIN GRANT DEED RECORDED JULY 25, 1991 AS INSTRUMENT NO. 91 -391882, OF OFFICIAL RECORDS.
APN: 029-033-25
PARCEL 2:
LOT NINE (9) OF “THE JAMES C. ROUSE SUBDIVISION” IN THE CITY OF FULLERTON,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON A MAP RECORDED IN BOOK 8, PAGE 37 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE CO., CALIF.
EXCEPTING THEREFROM THE FOLLOWING:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 9, RUNNING THENCE EAST 70 FEET;
THENCE NORTH 27 FEET;
THENCE WEST 70 FEET AND
THENCE SOUTH 27 FEET TO THE POINT OF BEGINNING AS GRANTED TO THE CITY OF FULLERTON IN DEED RECORDED MARCH 10, 1923 IN BOOK 459, PAGE 197 DEEDS.
TOGETHER WITH A 3.00 FOOT STRIP OF ELLIS PLACE ADJACENT TO THE EAST 120
FEET ON THE SOUTH, ABANDONED BY RESOLUTION OF THE BOARD OF TRUSTEES OF THE CITY OF FULLERTON, ON MAY 29, 1923, WHICH WAS FURTHER VACATED BY ORDINANCE NO. 305 BY THE BOARD OF TRUSTEES OF THE CITY OF FULLERTON RECORDED FEBRUARY 4, 1937 IN BOOK 873, PAGE 113 OFFICIAL RECORDS AND SEPTEMBER 13, 1939 IN BOOK 1012, PAGE 248 OFFICIAL RECORDS.
APN: 029-032-21
PARCEL 3:
THAT PORTION OF ELLIS PLACE AS ABANDONED BY RESOLUTION OF THE CITY
COUNCIL OF THE CITY OF FULLERTON, A COPY OF WHICH WAS REC ORDED ________, 2022 AS INSTRUMENT NO. 2022________ OF OFFICIAL RECORDS, MORE
PARTICULARLY DESCRIBED
AS:___________________________________________________________________.
PARCEL 4:
THE NORTH 20.00 FEET OF THE EAST 140.00 FEET EXCEPT THE SOUTH 2.00 FEET O F SAID NORTH 20.00 FEET OF THE EAST 75.00 FEET OF LOT 1 OF THE CENTRAL
ADDITION IN THE CITY OF FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SAME IS SHOWN ON A MAP RECORDED IN BOOK 7, PAGES 7 AND 8 OF MISCELLANEOUS MAPS, RECORDS OF SAID ORANGE COUNTY.
TOGETHER WITH ALL THAT PORTION OF SAID LOT 1 LYING NORTHWESTERLY OF THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF SAID NORTH 20.00 FEET WITH THE EAST LINE OF THE WEST 10.00 FEET; THENCE, ALONG SAID SOUTH LINE EASTERLY 12.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE, IN A DIRECT LINE SOUTHWESTERLY TO A POINT IN SAID EAST LINE OF THE WEST 10.00 FEET DISTANT ALONG SAID EAST LINE SOUTHERLY 12.00 FEET FROM THE POINT OF BEGINNING SAID POINT BEING THE POINT OF ENDING.
APN: 029-033-24
PARCEL 5:
A PERPETUAL EXCLUSIVE EASEMENT APPURTENANT TO PARCELS 1, 2 AND 3
ABOVE FOR THE CONSTRUCTION, USE, MAINTENANCE, REPAIR AND
REPLACEMENT OF TRASH ENCLOSURES ON THE FOLLOWING DESCRIBED AREAS
TOGETHER WITH ALL RIGHTS OF ACCESS FOR THE USE AND ENJOYMENT
THEREOF AND THE RIGHT TO PLANT, MAINTAIN, IRRIGATE, CULTIVATE AND
REPLACE LANDSCAPING AROUND SUCH TRASH ENCLOSURES AND INSTALL,
MAINTAIN, OPERATE, USE, REPAIR AND REPLACE SUCH UTILITIES, WATER LINES,
HOSE BIBS, BACKFLOW PREVENTERS, LI GHTING FACILITIES, SCREENING,
SECURITY MEASURES AND OTHER FACILITIES AS MAY BE CONVENIENT TO THE FOREGOING:
[INSERT METES AND BOUNDS DESCRIPTION OF AREAS WHERE THE TRASH ENCLOSURES ARE TO BE LOCATED AS WELL AS A DEPICTION THEREOF]
PARCEL 6:
A PERPETUAL EXCLUSIVE EASEMENT APPURTENANT TO PARCELS 1, 2 AND 3
ABOVE FOR THE CONSTRUCTION, USE, MAINTENANCE, REPAIR AND
REPLACEMENT OF A STAIRCASE, WALKWAY, COVERED BALCONY
RUN/WALKWAY WITH FOOTINGS AND COLUMNS AND ALL RELATED FACILITIES
ON, OVER, ABOVE AND ACROSS THE FOLLOWING DESCRIBED AREA TOGETHER
WITH ALL RIGHTS OF ACCESS FOR THE USE AND ENJOYMENT THEREOF AND THE
RIGHT TO PLANT, MAINTAIN, IRRIGATE, CULTIVATE AND REPLACE LANDSCAPING
ON AND AROUND SUCH AREA AND INSTALL, MAINTAIN, OPERATE, USE, REPAIR
AND REPLACE UT ILITIES AND FACILITIES AS MAY BE CONVENIENT TO THE
FOREGOING (INCLUDING BUT NOT LIMITED TO TRANSFORMERS, WATER METERS,
GAS METERS, STORMWATER TREATMENT OR RETENTION, WATER LINES, HOSE
BIBS, BACKFLOW PREVENTERS, LIGHTING, SCREENING AND SECURITY MEASURES):
[INSERT METES AND BOUNDS DESCRIPTION OF AREA NEEDED FOR THE ABOVE IMPROVEMENTS AS WELL AS A DEPICTION THEREOF]
PARCEL 7:
A PERPETUAL EASEMENT APPURTENANT TO PARCELS 1, 2 AND 3 ABOVE FOR
PEDESTRIAN AND VEHICULAR INGRESS, EGRESS AND CIRCULATION, LOADING
AND UNLOADING AREAS, DIRECTIONAL SIGNS, AND THE CONSTRUCTION, USE,
MAINTENANCE, REPAIR AND REPLACEMENT OF A CUL -DE-SAC ON ELLIS PLACE ON, OVER, ABOVE AND ACROSS THE FOLLOWING DESCRIBED LAND:
UNIT 4 AND UNIT 5, AS SHOWN AND DEFINED IN THE CONDOMINIUM PLAN RECORDED JANUARY 27, 2011 AS INSTRUMENT NO. 2011000050999 OF OFFICIAL RECORDS, AFFECTING THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 2009 -138,
IN THE CITY OF FULLERTON, COUNTY OF ORANGE, STATE OF CALIFORNIA, PER THE MAP FILED IN BOOK 370, PAGES 44 THROUGH 47 INCLUSIVE OF PARCEL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXHIBIT “C”
SITE PLAN
EXHIBIT J
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EXHIBIT J
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Permitted Exceptions
[Attached at following pages]