FIRST AMENDMENT
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
This FIRST AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT (Fox Block Commercial & Retail Project) (“Amendment”) is dated as of March __, 2024 (“Date of Amendment”), 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 capacity as the Successor Agency to the Fullerton Redevelopment Agency, a public body, corporate and politic (“Agency”), and FOX HARBOR LLC, a California limited liability company (“Developer”). City, Agency, and Developer are sometimes referred to in this Amendment, each individually, as a “Party,” or collectively, as the “Parties.”
RECITALS
This Amendment is entered into with reference to the following recitals (“Recitals”):
A. Developer (as successor-in-interest by assignment from NFRED LLC, a California limited liability company), City and Agency are parties to that certain DISPOSITION AND DEVELOPMENT AGREEMENT (Fox Block Commercial & Retail Project) dated as of November 15, 2022 (the “Agreement”).
B. To account for the unexpected delay in connection with the execution and recordation of the CC&Rs Amendment and, in turn, the Developer Easements Grant, the Parties desire to extend the dates set forth in Exhibit “C” of the Agreement (the Schedule of Performance) in accordance with the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual promises set forth in this Amendment 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
Incorporation of Recitals. The Recitals of fact set forth preceding this Amendment are true and correct and are incorporated into this Amendment in their entirety by this reference.
CAPITALIZED TERMS. Capitalized terms used but not otherwise defined in this Amendment shall have the meanings given to them in the Agreement.
SCHEDULE OF PERFORMANCE. The Schedule of Performance that currently appears as Exhibit “C” of the Agreement is hereby deleted in its entirety and replaced with the Schedule of Performance that is attached hereto as Exhibit “A”.
EFFECT OF AMENDMENT. Except as expressly provided in this Amendment, all of the terms, conditions, and provisions set forth in the Agreement shall remain in full force and effect. From and after the Date of Amendment, wherever the term “Agreement” appears in the Agreement, it shall be read and understood to mean the Agreement, as amended by this Amendment. In the event there is any conflict between the terms of this Amendment and the terms of the Agreement, the terms of this Amendment shall govern and control.
EXECUTION IN COUNTERPARTS. This Amendment may be executed in counterparts, each of which, when all Parties hereto have signed this Amendment, shall be deemed an original. This Amendment may be executed and delivered by facsimile or email transmission of a file in .pdf or similar format or via electronic signatures (using platforms including, but not limited to, DocuSign and Digi-Ink) and, upon such delivery, each signature shall be deemed to have the same effect as if the original signature had been delivered. (Signatures on Following Pages)
SIGNATURE PAGE
TO
FIRST AMENDMENT
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
CITY:
THE CITY OF FULLERTON
a California municipal corporation
Dated:_________________, 2024 By:
City Manager
ATTEST:
____________________________
City Clerk
APPROVED AS TO LEGAL FORM:
RUTAN & TUCKER, LLP
By: _______________________
Special Counsel
SIGNATURE PAGE
TO
FIRST AMENDMENT
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:_________________, 2024 By:
Executive Director
ATTEST:
____________________________
Secretary to the Board
APPROVED AS TO LEGAL FORM:
RUTAN & TUCKER, LLP
By: _______________________
Special Counsel
SIGNATURE PAGE
TO
FIRST AMENDMENT
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
DEVELOPER:
FOX HARBOR LLC,
a California limited liability company
Dated:_________________, 2024 By:
Dan Almquist, Manager
EXHIBIT “A”
NEW EXHIBIT “C”
TO
DISPOSITION AND DEVELOPMENT AGREEMENT
(Fox Block Commercial & Retail Project)
Schedule of Performance
Not To Exceed Due Date
Submission of construction drawings to City for plan check 24-48 months following Closing Date
December 30, 2026
Commencement of Construction of Project
30-54 months following Closing Date
June 30, 2027
Construction of project 50% Completion
no later than 12 months following commencement of construction June 30, 2028
Completion of Construction of Project
no later than 18 months following commencement of construction, or 72 months following Closing Date, whichever is earlier December 30, 2028
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 -4-
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