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DISPOSITION AND DEVELOPMENT AGREEMENT
CITY OF MANTECA,
a California municipal corporation
“City”
KEVIN YOUKILIS
“Developer”
January __, 2024
DRAFTED DATED DECEMBER 20, 2023
– FOR DISCUSSION PURPOSES ONLY
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DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this “Agreement”), dated as of January __, 2024 (the “Effective Date”) is entered into by and between the City of Manteca, a California municipal corporation (the “City”), and Kevin Youkilis, an individual (the “Developer”). The City and the Developer are hereinafter sometimes individually referred to as a “party” and collectively referred to as the “parties”.
R E C I T A L S
This Agreement is entered into with reference to the following facts:
A. The City owns the fee interest in that certain parcel of real property consisting of approximately Twenty-Nine Thousand, One Hundred Forty-Five (29,145) square feet located in the City of Manteca, County of San Joaquin, State of California, as more particularly described in Exhibit “A” attached hereto and incorporated herein by this reference (such real property is referred to herein as the “Property”). The Developer wishes to acquire fee title to the Property from the City to enable the Developer to construct the Improvements (as such term is defined in Section 1.1.25) on the Property (the “Project”).
B. The City has determined that the development of the Project pursuant to this Agreement is in the best interests of the City, and the health, safety and welfare of the residents and taxpayers of the City, and is in accord with the public purposes and provisions of applicable state and local laws.
C. A material inducement to the City to enter into this Agreement is the agreement by the Developer to develop the Project within a limited period of time, and the City would be unwilling to enter into this Agreement in the absence of an enforceable commitment by the Developer to develop the Project within such period of time.
NOW, THEREFORE, in reliance upon the foregoing Recitals, in consideration of the mutual covenants in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. The following terms as used in this Agreement shall have the meanings given unless expressly provided to the contrary:
1.1.1 “Agreement” means this Disposition and Development Agreement.
1.1.2 “Breach Notice” is defined in Section 5.7.
1.1.3 “Certificate of Completion” means a certificate described in Section
3.12, to be provided by the City to the Developer upon satisfactory completion of construction of the Improvements.
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1.1.4 “Certificate of Occupancy” means a final certificate of occupancy issued by the City for all of the Improvements.
1.1.5 “City” means the City of Manteca, a California municipal corporation, exercising governmental functions and powers, and organized and existing under the laws of the State of California. The principal office of the City is located at 1001 W. Center St., Manteca, California 95337.
1.1.6 “Close of Escrow” and “Closing” are defined in Section 2.3.2.
1.1.7 “Closing Date” means the date upon which the City by grant deed shall convey title to the Property to the Developer and such grant deed is recorded in the Official Records of the County of San Joaquin.
1.1.8 “Commencement Date” is defined in Section 3.1.1.
1.1.9 “Completion Date” is defined in Section 3.1.1.
1.1.10 “Construction Contract” is defined in Section 3.6.
1.1.11 “Construction Plans” is defined in Section 3.2.
1.1.12 “Deemed Disapproved Exceptions” is defined in Section 2.5.2.
1.1.13 “Default” is defined in Section 6.2.
1.1.14 “Deposit” is defined in Section 2.2.1.
1.1.15 “Developer” means Kevin Youkilis. The principal office of the Developer for purposes of this Agreement is 130 N. Santa Cruz Avenue, Suite G, Los Gatos, California 95030.
1.1.16 “Disapproved Exceptions” is defined in Section 2.5.3.
1.1.17 “Disapproval Notice” is defined in Section 2.5.2.
1.1.18 “Due Diligence Period” is defined in Section 2.7.1.
1.1.19 “Escrow” is defined in Section 2.3.1.
1.1.20 “Escrow Holder” means Old Republic Title Company. The principal office of the Escrow Holder for purposes of this Agreement is 1215 W. Center Street, Suite 103, Manteca, CA 95337, Attention: Lori Richardson, Telephone: (209) 239-9538, Email:
[email protected].
1.1.21 “General Contractor” is defined in Section 3.6.
1.1.22 “Grant Deed” is defined in Section 2.5.2.
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1.1.23 “Hazardous Materials” means any chemical, material or substance now or hereafter defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous waste,” “restricted hazardous waste,” “toxic substances,” “pollutant or contaminant,” “imminently hazardous chemical substance or mixture,” “hazardous air pollutant,” “toxic pollutant,” or words of similar import under any local, state or federal law or under the regulations adopted or publications promulgated pursuant thereto applicable to the Property, including, without limitation: the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601, et seq. (“CERCLA”); the Hazardous Materials Transportation Act, as amended, 49 U.S.C. § 1801, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251, et seq.; and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq. The term “Hazardous Materials” shall also include any of the following: any and all toxic or hazardous substances, materials or wastes listed in the United States Department of Transportation Table (49 CFR 172.101) or by the Environmental Protection Agency as hazardous substances (40 CFR Part 302) and in any and all amendments thereto in effect as of the date of the close of any escrow; oil, petroleum, petroleum products (including, without limitation, crude oil or any fraction thereof), natural gas, natural gas liquids, liquefied natural gas or synthetic gas usable for fuel, not otherwise designated as a hazardous substance under CERCLA; any substance which is toxic, explosive, corrosive, reactive, flammable, infectious or radioactive (including any source, special nuclear or by-product material as defined at 42 U.S.C. § 2011, et seq.), carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental authority; asbestos in any form; urea formaldehyde foam insulation; transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyl’s; radon gas; or any other chemical, material or substance (i) which poses a hazard to the Property, to adjacent properties, or to persons on or about the Property, (ii) which causes the Property to be in violation of any of the aforementioned laws or regulations, or (iii) the presence of which on or in the Property requires investigation, reporting or remediation under any such laws or regulations.
1.1.24 “Holder” is defined in Section 4.2.2.
1.1.25 “Improvements” means the improvements described in Section 3.1.1.
1.1.26 “Notice of Affordability” means the Notice of Covenants and Restrictions for Real Property substantially in the form attached hereto as Exhibit “H”, and incorporated herein by this reference.
1.1.27 “Outside Date” is defined in Section 2.3.2.
1.1.28 “Parking Agreement” means the Parking and Access Agreement in substantially the form attached hereto as Exhibit “I” and incorporated herein by this reference.
1.1.29 “Plans and Specifications” means the plans and specifications approved (or deemed approved) by the City for construction of the Improvements.
1.1.30 “Project” is defined in Recital A.
1.1.31 “Property” is defined in Recital A.
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1.1.32 “Property Documents” is defined in Section 2.7.2.
1.1.33 “Purchase Price” is defined in Section 2.1.
1.1.34 “Released Parties” is defined in Section 2.8.
1.1.35 “Review Period” is defined in Section 2.5.2.
1.1.36 “Right of Entry Agreement” is defined in Section 2.7.1.
1.1.37 “Schedule of Performance” means the schedule attached hereto as Exhibit “B” and incorporated herein by this reference.
1.1.38 “Survey” is defined in Section 2.5.1.
1.1.39 “Title Company” is defined in Section 2.5.3.
1.1.40 “Title Policy” is defined in Section 2.5.3.
1.1.41 “Title Report” is defined in Section 2.5.1.
1.1.42 “Transaction Costs” means all costs incurred by either party in entering into this transaction and closing Escrow, including but not limited to escrow fees and costs, attorneys’ fees, staff time, appraisal costs, broker’s fees, and costs of financial advisors and other consultants.
ARTICLE 2
PURCHASE AND SALE OF THE PROPERTY
2.1 Purchase and Sale.
2.1.1 Property. The City agrees to sell the Property to the Developer, and the Developer agrees to purchase the Property from the City, for the sum of Three Hundred Twenty Thousand Dollars ($320,000.00) determined by an appraisal of the Property dated October 31, 2023, of the Property prepared by Integra Realty Resources (the “Purchase Price”). The appraisal shall be dated no more than six (6) months prior to the Closing Date. The Purchase Price shall be paid as set forth in Section 2.2.
2.1.2 Parking Agreement. As part of the Project approvals, Developer is required to enter into a Parking Agreement with the City to provide for the Project’s parking requirements. The City will provide 32 shared parking spaces from the City’s adjacent parking lot at a market rate rental value to be determined by City appraisal at the time in which Developer receives its Certificate of Occupancy for the Project (for informational purposes only, the fair market value for 32 spaces is $1,300.16 per month as of October 9, 2023). The Parking Agreement shall not pertain to any use by the Developer of the subject parking spaces during the construction phase of the Project, provided however, to the extent Developer wishes to utilize City Property for purposes of a “construction staging area” during the Construction Improvement of the Project (see Exhibit B, Schedule of Improvements), the Parties agree that they shall negotiate a subsequent
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addendum to this Agreement setting out the terms, conditions, and cost related to the use of City Property for such “construction staging area”.
2.2 Payment of Purchase Price. The Purchase Price shall be payable by Developer as follows:
2.2.1 Deposit. Developer shall deposit with Escrow Holder upon the opening of Escrow, the sum of Sixteen Thousand Dollars ($16,000.00) by a certified or bank cashier’s check made payable to Escrow Holder or by a confirmed wire transfer of funds (collectively, the “Deposit”). The Deposit shall be invested by Escrow Holder in an interest-bearing account acceptable to the Developer and the City with all interest accruing thereon to be credited to the Purchase Price upon the Close of Escrow. Except as otherwise provided herein, the Deposit shall be applicable in full towards the Purchase Price upon Closing.
2.2.2 Closing Funds. Prior to the Close of Escrow, Developer shall deposit or cause to be deposited with Escrow Holder, by a certified or bank cashier’s check made payable to Escrow Holder or by a confirmed federal wire transfer of funds, the balance of the Purchase Price, plus payment of the Developer’s share of the costs of the Escrow.
2.3 Escrow.
2.3.1 Opening of Escrow. Within three (3) business days after the parties’ full execution of this Agreement, the Developer and the City shall open an escrow (the “Escrow”) with the Escrow Holder for the transfer of the Property to the Developer. The parties shall deposit with the Escrow Holder a fully executed duplicate original of this Agreement, which shall serve as the escrow instructions (which may be supplemented in writing by mutual agreement of the parties) for the Escrow. The Escrow Holder is authorized to act under this Agreement, and to carry out its duties as the Escrow Holder hereunder.
2.3.2 Close of Escrow. “Close of Escrow” or “Closing” means the date Escrow Holder causes the Grant Deed (as hereinafter defined) to be recorded in the Official Records of the County of San Joaquin and delivers the Purchase Price (less any escrow or other costs payable by the City) to the City. Possession of the Property shall be delivered to the Developer on the Close of Escrow. Close of Escrow shall occur within sixty (60) days following the expiration of the Due Diligence Period (the “Outside Date”). If for any reason other than a default by the City or the Developer the Closing does not occur on or before the Outside Date, this Agreement shall automatically terminate, the Deposit shall be promptly returned to the Developer (including any interest thereon), all other monies and documents deposited into the Escrow shall be promptly returned to the appropriate party, and each party shall pay its portion of any Escrow charges and fees in connection with such termination.
2.3.3 Delivery of Closing Documents.
(a) The City and the Developer agree to deliver to Escrow Holder, at least two (2) days prior to the Close of Escrow, the following instruments and documents, the delivery of each of which shall be a condition precedent to the Close of Escrow:
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(i) The Grant Deed, duly executed and acknowledged by the City, conveying a fee simple interest in the Property to the Developer, subject only to such exceptions to title as the Developer may have approved or have been deemed to approve pursuant to Section 2.5.2;
(ii) The Parking Agreement, duly executed and acknowledged by the City and the Developer;
(iii) The Notice of Affordability duly executed and acknowledged by the City;
(iv) The City’s affidavit as contemplated by California Revenue and Taxation Code Section 18662;
(v) A Certification of Non-Foreign Status signed by the City in accordance with Internal Revenue Code Section 1445; and (vi) Such proof of the City’s and the Developer’s authority and authorization to enter into this transaction as the Title Company may reasonably require in order to issue the Title Policy.
The City and the Developer further agree to execute such reasonable and customary additional documents, and such additional escrow instructions, as may be reasonably required to close the transaction which is the subject of this Agreement pursuant to the terms hereof.
2.4 Conditions to Close of Escrow. The obligations of the City and the Developer to close the transaction which is the subject of this Agreement shall be subject to the satisfaction, or waiver in writing by the party benefited thereby, of each of the following conditions:
2.4.1 For the benefit of the City, the Developer shall have deposited the balance of the Purchase Price, together with such funds as are necessary to pay for costs and expenses payable by the Developer hereunder.
2.4.2 For the benefit of the City, all actions and deliveries to be undertaken or made by the Developer on or prior to the Closing Date as set forth in the Schedule of Performance shall have occurred, as reasonably determined by the City.
2.4.3 For the benefit of the Developer, all actions and deliveries to be undertaken or made by the City on or prior to the Closing Date shall have occurred, as reasonably determined by the Developer.
2.4.4 For the benefit of the City, all City approvals required by the Schedule of Performance to be obtained prior to the Closing Date shall have been so obtained.
2.4.5 For the benefit of the City, the Developer shall have executed and delivered to Escrow Holder all documents and funds required to be delivered to Escrow Holder
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under the terms of this Agreement and the Developer shall otherwise have satisfactorily complied with its obligations hereunder.
2.4.6 For the benefit of the Developer, the City shall have executed and delivered to Escrow Holder all documents and funds required to be delivered to Escrow Holder under the terms of this Agreement and the City shall otherwise have satisfactorily complied with its obligations hereunder.
2.4.7 For the benefit of the City, the representations and warranties of the Developer contained in this Agreement shall be true and correct in all material respects as of the Closing Date.
2.4.8 For the benefit of the Developer, the representations and warranties of the City contained in this Agreement shall be true and correct in all material respects as of the Closing Date.
2.4.9 For the benefit of the Developer, Title Company shall be irrevocably committed to issuing in favor of the Developer the Title Policy, in form and substance, and with endorsements reasonably required by the Developer, as provided in Section 2.5.2.
2.5 Condition of Title; Survey; Title Insurance.
2.5.1 Within five (5) working days after the Effective Date, the City shall deliver to the Developer for the Developer’s review and approval, (i) a current preliminary title report covering the Property (the “Title Report”) and legible copies of any instruments noted as exceptions thereon, and (ii) any survey of the Property in the City’s possession. The Developer at its sole expense may obtain a current or updated ALTA survey of the Property in connection with the issuance of the Title Policy and the City shall cooperate with the same. Any current or updated survey of the Property undertaken by the Developer shall be prepared by a registered surveyor and shall be completed within thirty (30) days following the Developer’s receipt of the Title Report.
Any survey provided by the City or obtained by the Developer are each a “Survey” hereunder.
2.5.2 The Developer shall have thirty (30) days after the date of the Developer’s receipt of the Title Report and the Survey (if the City provides a Survey or the Developer obtains a Survey as described in Section 2.5.1) (the “Review Period”) to disapprove any exceptions to title shown on the Title Report or reflected on the Survey (collectively, “Disapproved Exceptions”) and to provide the City with notice thereof describing the defect with reasonable particularity (the “Disapproval Notice”). Any exceptions to title not disapproved within the Review Period shall be deemed approved. Within ten (10) days after the City’s receipt of the Disapproval Notice, the City shall notify the Developer whether or not the City intends to remove the Disapproved Exceptions. The City shall be under no obligation to remove any Disapproved Exception, but the City agrees to cooperate in good faith with the Developer in the Developer’s efforts to eliminate any Disapproved Exception, provided the City is not obligated to pay any sum or assume any liability in connection with the elimination of any such Disapproved Exception. If the City notifies the Developer that the City intends to eliminate any Disapproved Exception, the City shall do so at least five (5) days prior to the Close of Escrow. If the City notifies the Developer that the City does not intend to eliminate any Disapproved Exception(s), the Developer, by notifying the City within five (5) days after its receipt of such notice, may elect to terminate this
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Agreement and receive a refund of the Deposit or take the Property subject to the Disapproved Exception(s). Notwithstanding the foregoing, the City covenants to pay in full all loans secured by deeds of trust, any mechanics’ and materialmen’s liens, and any other monetary liens (other than liens for charges, assessments, taxes, and impositions subject to proration as provided in Section 2.6.2) (collectively, the “Deemed Disapproved Exceptions”) prior to, or concurrently with, the Close of Escrow, and Escrow Holder is hereby directed to cause the same to be paid from the Purchase Price. The Title Policy shall include such endorsements as the Developer shall reasonably request. Any endorsements to the Title Policy are to be paid for by the Developer.
Notwithstanding the foregoing, the Developer may notify the City of its disapproval of an exception to title (including exceptions reflected on the Survey) first raised by Title Company or the surveyor after the Review Period, or otherwise first disclosed to the Developer after the Review Period, by the earlier of (a) within ten (10) days after the same was first raised or disclosed to the Developer in writing, and (b) fifteen (15) days prior to the Close of Escrow. With respect to any exceptions disapproved by the Developer in such notice, the City shall have the same option to eliminate such exceptions that applies to Disapproved Exceptions, and the Developer shall have the same option to accept title subject to such exceptions or to terminate this Agreement and receive a refund of the Deposit. At the Close of Escrow, the Developer shall receive title to the Property by grant deed substantially in the form attached hereto as Exhibit “C” and incorporated herein by this reference (the “Grant Deed”).
2.5.3 At Closing, the Developer shall receive a CLTA Owner’s Coverage Policy of Title Insurance (the “Title Policy”), together with all endorsements requested by the Developer, issued by Old Republic Title Company (“Title Company”) in the amount of the Purchase Price, insuring that title to the Property is free and clear of all Disapproved Exceptions, all Deemed Disapproved Exceptions and all liens, easements, covenants, conditions, restrictions, and other encumbrances of record except (a) current taxes and assessments of record, but not any overdue or delinquent taxes or assessments, (b) the matters set forth or referenced in the Grant Deed, and (c) such other encumbrances as the Developer approves in writing including those reflected in the Title Report for the Property approved by the Developer, or as are deemed approved by the Developer as provided in Section 2.5.2. The Developer may obtain an extended coverage policy of title insurance at its own costs.
2.6 Escrow and Title Charges; Prorations.
2.6.1 The City shall pay all documentary transfer taxes and the coverage premiums on the standard CLTA Title Policy. The Developer shall pay the costs of (i) any Survey obtained by the Developer, (ii) any endorsements to the Title Policy and (iii) any title insurance premiums for any coverage over and above the standard policy coverage on the CLTA Title Policy to be paid by the City. In addition, the Developer and the City shall each pay one-half (½) of any and all other usually and customary costs, expense and charges relating to the escrow and conveyance of title to the Property, including without limitation, recording fees, document preparation charges and escrow fees. Each party shall be responsible for its own Transaction Costs.
2.6.2 All non-delinquent and current installments of real estate and personal property taxes and any other governmental charges, regular assessments, or impositions against the Property on the basis of the current fiscal year or calendar year shall be pro-rated as of the Close of Escrow based on the actual current tax bill. If the Close of Escrow shall occur before the
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tax rate is fixed, the apportionment of taxes on the Close of Escrow shall be based on the tax rate for the next preceding year applied to the latest assessed valuation after the tax rate is fixed, which assessed valuation shall be based on the Property’s assessed value prior to the Close of Escrow and the City and the Developer shall, when the tax rate is fixed, make any necessary adjustment.
All prorations shall be determined on the basis of a 365 day year. The provisions of this Section
2.6.2 shall survive the Close of Escrow and the recordation of the Grant Deed and shall not be deemed merged into the Grant Deed upon its recordation.
2.7 Due Diligence Period; Access.
2.7.1 Due Diligence. During the period (the “Due Diligence Period”) commencing on the Effective Date and ending at 5:00 p.m. on the date which is ninety (90) days after the Effective Date, the Developer may inspect the Property as necessary to (i) approve all zoning and land use matters relating to the Property, (ii) approve the physical condition of the Property, and (iii) satisfy any due diligence requirements of the Developer’s lender, if any.
Developer and its agents shall have the right to enter upon the Property during the Due Diligence Period to make inspections and other examinations of the Property and the improvements thereon, including without limitation, the right to perform surveys, soil and geological tests of the Property and the right to perform environmental site assessments and studies of the Property. The City shall reasonably cooperate with the Developer in its conduct of the due diligence review during the Due Diligence Period. Any Phase II invasive testing shall be first approved by the City in its reasonable discretion. In the event the Developer does not approve of the condition of the Property by written notice to the City prior to the expiration of the Due Diligence Period, this Agreement shall terminate, the Deposit shall be returned to Developer (including any interest earned thereon) and, except as otherwise expressly stated in this Agreement, neither party shall have any further rights or obligations to the other party.
2.7.2 Access. Access to the Property, from the Effective Date through the earlier of Close of Escrow or termination of this Agreement, shall be given to Developer, its agents, employees, consultants, or contractors during normal business hours at reasonable times upon at least one (1) business days' notice to the City, at Developer’s own cost and risk, for the purpose of conducting its due diligence investigation of the Property as set forth in Section 2.7.1. Developer shall restore the Property as a result of such investigations and return the affected portions of the Property to their condition immediately prior to such investigation. Developer shall repair any damage to the Property caused by any of its inspections. Developer shall indemnify and defend the City against and hold the City harmless from all losses, costs, damages, liabilities, and expenses arising out of negligent or willful acts by Developer or its agents, employees, consultants, or contractors on the Property in connection with Developer’s entry onto the Property or any activity thereon prior to the Close of Escrow except to the extent any such losses, costs, damages, liabilities, and expenses arise out of any negligent or willful act of the City or the City’s agents, employees or contractors; provided however, Developer’s discovery of or impact on an adverse condition or defect on or affecting the Property shall not trigger Developer’s indemnification obligations.
Developer’s obligation to indemnify and defend the City shall survive closing or any other termination of this Agreement.
2.7.3 Insurance. Prior to its first entry onto the Property and at all times thereafter until Close of Escrow or earlier termination of this Agreement, Developer shall maintain
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commercial general liability insurance covering the activities of Developer on the Property. Such insurance shall have a per occurrence limit of at least One Million Dollars ($1,000,000) and an aggregate limit of at least Two Million Dollars ($2,000,000), shall name the City as additional insured, shall be primary and noncontributing with any other insurance available to Developer, and shall be issued on an occurrence basis. Prior to any entry onto the Property by Developer or its agents, employees, consultants, or contractors, Developer shall furnish the City with a certificate of such insurance in form and substance reasonably acceptable to the City.
2.7.4 Property Documents. Within five (5) business days after the Effective Date, the City shall provide Developer copies of all documents relating to the Property that are in its possession or under its control, including, without limitation, the following: (i) relevant studies, documents, land surveys, soils reports, licenses, permits, maintenance contracts, utility contracts, management contracts, service contracts, warranties, approvals, and other documents and/or contracts pertaining to the Property; (ii) any and all information that the City has regarding environmental matters affecting the Property and regarding the condition of the Property; (iii) copies of leases; (iv) copies of all building permits, licenses and inspections issued by governmental agencies; and (v) any other documents materially relative to the condition of the Property and the Parties' rights and duties under the Agreement (collectively, “Property Documents”). Notwithstanding the foregoing, the Seller shall have no obligation to cause any of the Property Documents to be created or produced if such document does not already exist. The City does not expressly or impliedly represent or warrant that the contents of the Property Documents are accurate.
2.8 Condition of the Property. The Property shall be conveyed from the City to the Developer on an “AS IS” condition and basis with all faults and the Developer agrees that the City has no obligation to make modifications, replacements or improvements thereto. Except as expressly and specifically provided in this Agreement, the Developer and anyone claiming by, through or under the Developer hereby waives its right to recover from and fully and irrevocably releases the City, and its respective officers, council members, employees, representatives, agents, advisors, servants, attorneys, successors and assigns, and all persons, firms, corporations and organizations acting on the City’s behalf (collectively, the “Released Parties”) from any and all claims, responsibility and/or liability that the Developer may now have or hereafter acquire against any of the Released Parties for any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or related to the matters pertaining to the Property described in this Section
2.8. This release includes claims of which the Developer is presently unaware or which the Developer does not presently suspect to exist which, if known by the Developer, would materially affect the Developer’s release of the Released Parties. If the Property is not in a condition suitable for the intended use or uses, then it is the sole responsibility and obligation of the Developer to take such action as may be necessary to place the Property in a condition suitable for development of the Project thereon. Except as specifically provided in this Agreement and without limiting the generality of the foregoing, THE CITY MAKES NO REPRESENTATION OR WARRANTY AS TO (i) THE VALUE OF THE PROPERTY; (ii) THE INCOME TO BE DERIVED FROM THE PROPERTY; (iii) THE HABITABILITY, MARKETABILITY, PROFITABILITY, MERCHANTABILITY OR FITNESS FOR PARTICULAR USE OF THE PROPERTY; (iv) THE MANNER, QUALITY, STATE OF REPAIR OR CONDITION OF THE PROPERTY; (v) THE
COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS,
RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
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AUTHORITY OR BODY; (vi) COMPLIANCE WITH ANY ENVIRONMENTAL
PROTECTION OR POLLUTION LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS; (vii) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER OR ADJACENT TO THE PROPERTY; (viii) THE FACT THAT ALL OR A
PORTION OF THE PROPERTY MAY BE LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE; OR (ix) WITH RESPECT TO ANY OTHER MATTER, THE DEVELOPER
FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE PROPERTY AND REVIEW INFORMATION AND
DOCUMENTATION AFFECTING THE PROPERTY, THE DEVELOPER IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND REVIEW OF SUCH
INFORMATION AND DOCUMENTATION AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY THE CITY.
THE DEVELOPER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH IS SET FORTH BELOW:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT IF, KNOWN BY HIM OR
HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
BY INITIALING BELOW, DEVELOPER HEREBY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES.
Developer’s Initials
The waivers and releases by the Developer herein contained shall survive the Close of Escrow and the recordation of the Grant Deed and shall not be deemed merged into the Grant Deed upon its recordation.
2.9 Escrow Holder.
2.9.1 Escrow Holder is authorized and instructed to:
(a) Pay and charge the Developer for any fees, charges and costs payable by the Developer under this Article 2. Before such payments are made, the Escrow Holder shall notify the City and the Developer of the fees, charges, and costs necessary to close the Escrow;
(b) Pay and charge the City for any fees, charges and costs payable by the City under this Article. Before such payments are made, the Escrow Holder shall notify the
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City and the Developer of the fees, charges, and costs necessary to close the Escrow; (c) Disburse funds and deliver the Grant Deed and other documents to the parties entitled thereto when the conditions of the Escrow and this Agreement have been fulfilled by the City and the Developer; and
(d) Record the Grant Deed, Notice of Affordability and Parking Agreement, and any other instruments delivered through the Escrow, if necessary or proper, to vest title in the Developer in accordance with the terms and provisions of this Agreement.
2.9.2 Any amendment of or supplement to these escrow instructions shall be in writing and signed by both the City and the Developer, or their respective counsel.
2.9.3 All communications from the Escrow Holder to the City or the Developer shall be directed to the addresses and in the manner established in Section 7.3 of this Agreement for notices, demands and communications between the City and the Developer.
2.9.4 The responsibility of the Escrow Holder under this Agreement is limited to performance of the obligations imposed upon it under this Article, and any amendments hereto.
ARTICLE 3
DEVELOPMENT OF THE PROPERTY
3.1 Scope of Development.
3.1.1 The “Improvements” to be completed by the Developer shall be those described on Exhibit “D” attached hereto and incorporated herein by this reference. The Developer shall, subject to extension for force majeure delays as provided in Section 7.9 below, commence construction of the Project no later than the date set forth in the Schedule of Performance (“Commencement Date”). Subject to force majeure delays as provided in Section 7.9 below, the Project shall be completed no later than the date set forth in the Schedule of Performance (“Completion Date”). The Developer shall not unreasonably postpone the construction or completion of the Project. The Improvements shall be designed for commercial use and shall comply with all zoning and general plan requirements applicable to the Property. To the extent of any inconsistency between the Schedule of Performance and this Section 3.1.1, this Section 3.1.1 shall control.
3.1.2 The Developer shall construct the Improvements, and all associated public infrastructure improvements required by the City pursuant to its conditions of approval, if any, and all parking areas and landscaping, in accordance with and within the limitations established therefor in this Agreement and as required by the City. The Developer shall also comply with any and all applicable federal, state and local laws, rules and regulations, and any applicable mitigation measures adopted pursuant to the California Environmental Quality Act. The City shall cooperate in all reasonable respects, at no out-of-pocket cost to the City, with the Developer’s pursuit and acquisition of permits and approvals for the Project from all applicable governmental and quasi-governmental agencies and public utilities.
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3.2 City’s Right to Review Plans and Specifications. In connection with design of the Improvements, the Developer has submitted its concept drawings, preliminary plans, and final Plans and Specifications (collectively, the “Construction Plans”) to the City for the City’s review and approval, which the City has approved. In addition, the Developer shall comply with all Design and Building Review requirements in place by the City as of the Effective Date of this Agreement.
Developer shall construct the Improvements in substantial compliance with the final Plans and Specifications approved by the City pursuant to the procedures in this Section 3.
3.3 Offsite Landscaping Plans. By the date set forth in the Schedule of Performance, Developer shall submit, for City approval, landscaping plans for the relocation of the irrigation mainline currently located on the Property to a location outside the footprint of the Property (“Landscaping Plans”). The City shall reasonably approve or disapprove the Landscaping Plans within the time periods provided in the Schedule of Performance. Any disapproval shall state in writing the reasons for disapproval. The Developer, upon receipt of a disapproval, shall revise such portion of the plans, drawings or related documents in a manner that satisfies the reasons for disapproval and shall resubmit such revised portions to the City within a commercially reasonable period after receipt of the notice of disapproval. The City shall approve or disapprove such revised portions in the same manner and within the same time limits as provided in the Schedule of Performance for approval or disapproval of the Landscaping Plans. All approvals or disapprovals to be made by the City pursuant to this Article 3 shall be made by the City Manager of the City or the City Manager’s designated staff members and such approvals or disapprovals are separate and apart from any other review and approval required by other City departments through the entitlement and permit process. Upon approval of the Landscaping Plans and Close of Escrow, Developer shall be responsible for relocating the irrigation pipeline as part of its Project.
3.4 Changes in Construction Plans. If the Developer desires to make any material change to any of the Construction Plans after their approval by the City, the Developer shall submit the proposed changes to the City for its approval, which approval shall not be unreasonably withheld, conditioned or delayed. The City shall approve or disapprove such revised portions in the same manner and within the same time limits as provided in Section 3.3 of this Agreement.
3.5 Cost of Construction. The cost of constructing all Improvements and all public infrastructure improvements relating to the Project or required by the City in connection with the Project, if any, shall be borne by the Developer.
3.6 Construction Financing; Construction Contract. Prior to the date set forth in the Schedule of Performance, the Developer shall provide to the City (i) evidence reasonably acceptable to the City as to form and substance that the Developer has obtained a commitment to provide construction financing (or otherwise has sufficient funds committed) for the construction of the Improvements, and (ii) a copy of the fully executed construction contract (the “Construction Contract”), which Construction Contract shall obligate a reputable and financially responsible general contractor (the “General Contractor”), licensed in California and experienced in completing the type of improvements contemplated by this Agreement, to commence and complete the development of the Project in accordance with this Agreement, and all applicable laws, with the funds available for the Project. Such Construction Contract shall set forth a cost of construction, including fees to the General Contractor, consistent with the funding available to and obtained by the Developer to pay the cost of constructing the Improvements. The City shall also
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have the right to confirm that the Construction Contract will conform to the budget and cost breakdown approved by the Developer’s construction lender.
3.7 Construction Schedule. Subject to force majeure delays as provided in Section 7.9, the Developer shall begin and complete all construction within the times specified in the Schedule of Performance.
3.8 Progress of Construction. During construction of the Improvements on the Property, the Developer shall submit to the City within ten (10) days following each request of the City therefore (which requests shall be submitted no more frequently than monthly), a written report of the progress to date of the construction. The report shall be in such form and detail as to reasonably inform the City of the status of construction to date, and shall include a reasonable number of photographs (if so requested by the City) taken since the last report by the Developer.
3.9 Rights of Access. In addition to those rights of access to and across the Property to which the City may be entitled by law, members of the staff of the City shall have a reasonable right of access to the Property, without charge or fee, at any reasonable time, to inspect the work being performed at the Property.
3.10 Local, State and Federal Laws. The Developer shall carry out the construction of the Improvements in material conformity with all applicable laws, including all applicable federal, state and local occupation, safety and health laws, rules, regulations and standards. Because the Developer is purchasing the Property at fair market value and will not otherwise be receiving any direct or indirect financial assistance from the City, it is currently the understanding of both the City and the Developer that the Developer should not be required under current prevailing wage laws of the State of California to pay prevailing wages. Notwithstanding the foregoing, the Developer shall construct or cause the Improvements to be constructed in full compliance with all applicable provisions of state, federal and local prevailing wage laws and all rules and regulations promulgated pursuant thereto, including, without limitation, the prevailing wage laws of the State of California set forth in the California Labor Code, Division 2, Part 7 and California Code of Regulations, Title 8. The Developer agrees to indemnify, defend and hold the City harmless from and against any cost, expense, claim, charge or liability relating to or arising directly or indirectly from any breach by or failure of the Developer or its contractor(s) or agents to comply with such laws, rules or regulations. The indemnification obligations described in this Section 3.10 shall survive the termination of this Agreement and the recordation of the Grant Deed and shall not be deemed merged into the Grant Deed upon its recordation.
3.11 Nondiscrimination During Construction. The Developer, for itself and its successors and assigns, agrees that it shall not discriminate against any employee or applicant for employment because of age, sex, marital status, race, handicap, color, religion, creed, ancestry, or national origin in the construction of the Improvements.
3.12 Certificate of Completion. After (i) completion of construction by the Developer of all of the Improvements, (ii) the Developer has obtained a Certificate of Occupancy, and (iii) the Developer has caused a notice of completion (as described in California Civil Code Section 8182) with respect to the Improvements to be recorded in the Official Records of San Joaquin County, California, the City shall, following written request by the Developer, furnish the Developer with
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a Certificate of Completion for the Improvements within ten (10) business days of such request.
The Certificate of Completion shall be in the form attached hereto as Exhibit “E” and incorporated herein by this reference. The City shall not unreasonably withhold, condition or delay the issuance of the Certificate of Completion. The Certificate of Completion shall be, and shall so state that it is, a conclusive determination of satisfactory completion by the Developer of all of its construction obligations under this Agreement as to the Improvements.
The Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, trust deed or other security instrument. Such Certificate of Completion shall not be construed as a notice of completion as described in California Civil Code Section 8182.
ARTICLE 4
LIMITATIONS ON TRANSFERS AND SECURITY INTERESTS
4.1 Limitation As To Transfer of the Property and Assignment of Agreement. Prior to the City’s issuance of the Certificate of Completion, the Developer shall not transfer its rights and obligations under this Agreement, or sell, assign, transfer, encumber, pledge or lease the Property, without the City’s prior written consent, which consent may be granted or withheld in the sole and absolute discretion of the City; provided, however, that Developer may, without the prior consent of the City, assign, lease, or transfer the Property or this Agreement to a business entity now or hereafter organized in which Developer owns a controlling or equity interest of not less than fiftyone percent (51%). The Developer acknowledges that the identity of the Developer is of particular concern to the City, and it is because of the Developer’s identity that the City has entered into this Agreement with the Developer. In the event of a transfer, the transferee shall assume in writing all of the transferor’s obligations hereunder in a form approved by the City. No voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement in violation of the terms hereof. Notwithstanding any provision contained herein to the contrary, this prohibition shall not be deemed to prevent the granting of easements or permits to facilitate the development of the Project, or any mortgage or deed of trust permitted by this Agreement. Upon the City’s issuance of a Certificate of Completion, the Developer may transfer the Property to a transferee without restriction so long as the transferee agrees to all of the applicable covenants and conditions set forth in Article 5 of this Agreement.
4.2 Security Financing; Right of Holders.
4.2.1 No Encumbrances Except Mortgages, Deeds of Trust, Conveyances or Other Conveyance for Financing For Development.
(a) Notwithstanding Section 4.1 or any other provision herein to the contrary, only mortgages, deeds of trust, sales and leasebacks, or any other form of encumbrance, conveyance, security interest or assignment required for any reasonable method of construction and permanent financing are permitted prior to the issuance of a Certificate of Completion for the Property, but only for the purpose of securing loans of funds to be used for the purchase of the Property or financing the direct and indirect costs of the development of the Project (including reasonable and customary developer fees, loan fees and costs, and other normal and customary project costs), and each such loan secured by the Property shall expressly allow for its prepayment
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or assumption (upon payment of a market standard prepayment or assumption fee) by and at the option of the City upon the exercise of its rights of repurchase provided in Section 5.7. (b) The words “mortgage” and “deed of trust” as used herein include all other appropriate modes of financing commonly used in real estate acquisition, construction and land development. Any reference herein to the “holder” of a mortgage or deed of trust shall be deemed also to refer to a lessor under a sale and leaseback.
4.2.2 Notice of Default to Mortgage, Deed of Trust or Other Security Interest Holders; Right to Cure. Whenever the City shall deliver a notice or demand to the Developer with respect to any Default by the Developer in completion of development of the Project or otherwise, the City shall at the same time deliver a copy of such notice or demand to each holder of record of any first mortgage, deed of trust or other security interest authorized by this Agreement who has previously made a written request to the City for special notice hereunder (a “Holder”). No notice of Default to the Developer shall be effective against any such Holder unless given to such Holder as aforesaid. Such Holder shall (insofar as the rights of the City are concerned) have the right, at such Holder’s option, within sixty (60) days after receipt of the notice, to cure or remedy any such Default and to add the cost thereof to the security interest debt and the lien of its security interest; provided, however, that if longer than sixty (60) days is required to cure such Default, such longer period shall be granted to Holder, provided that Holder diligently pursues such cure during such longer period. If such Default shall be a default which can only be remedied or cured by such Holder upon obtaining possession of the Property, such Holder shall seek to obtain possession of the Property with diligence and continuity through a receiver or otherwise, and shall remedy or cure such Default within a reasonable period of time as necessary to remedy or cure such Default of the Developer. If such Default shall be a default as to or by Developer which cannot be cured, the City shall not seek to enforce the same against Holder and Holder shall not be subject thereto.
4.2.3 Noninterference with Holders. The provisions of this Agreement do not limit the right of Holders to foreclose or otherwise enforce any mortgage, deed of trust, or other security instrument encumbering the Property and the improvements thereon, or the right of Holders to pursue any remedies for the enforcement of any pledge or lien encumbering the Property; provided, however, that in the event of a foreclosure sale under any such mortgage, deed of trust or other lien or encumbrance, or sale pursuant to any power of sale contained in any such mortgage or deed of trust, the purchaser or purchasers and their successors and assigns, and the Property, shall be, and shall continue to be, subject to all of the conditions, restrictions and covenants of this Agreement and all documents and instruments recorded pursuant hereto.
ARTICLE 5
USE OF THE PROPERTY
5.1 Use. The Developer covenants and agrees for itself, and its successors and its assigns, that the Developer, such successors, and such assignees shall use the Property, and every part thereof, only for the construction of the Improvements thereon, and thereafter for any use allowed under applicable law. The foregoing covenant to use the Property for any use allowed under applicable law shall run with the land for the benefit of the City and the Project Area for the purpose of protecting the interest of the community, and shall be binding on the Developer and all successors in interest of the Developer. Notwithstanding the foregoing, if and when the Developer
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conveys the Property to a third party after completion of the Improvements thereon in accordance with this Agreement, the Developer shall be relieved of any further responsibility under this Section 5.1 as to the Property so conveyed.
5.2 Maintenance of the Property. After completion of the Project, Developer or the Developer’s transferees or successors and assigns, shall maintain the Property and the Project (including landscaping) in a commercially reasonable condition and repair to the extent practicable and in accordance with industry health and safety standards. Notwithstanding the foregoing, if and when the Developer conveys the Property to a third party after completion of the Improvements thereon in accordance with this Agreement, the Developer shall be relieved of any further responsibility under this Section 5.2 as to the Property so conveyed.
5.3 Obligation to Refrain from Discrimination. The Developer covenants and agrees for itself, its successors and assigns, and for every successor in interest to the Property or any part thereof, that there shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, age, handicap, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, and the Developer (itself or any person claiming under or through the Developer) shall not 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, subtenants, sublessees, or vendees of the Property or any portion thereof.
5.4 Restrictive Covenants. In order to ensure the Developer’s compliance with the covenants set forth in Sections 5.1, 5.2, and 5.3 hereof, such covenants shall be set forth in the Grant Deed. Such covenants shall run with the Property for the benefit of the City without regard to whether the City has been, remains, or is an owner or holder of any lien or interest in the Project Area, and the City shall have the right to assign all of its rights and benefits therein.
5.5 Effect and Duration of Covenants. The covenants described in Sections 5.1, 5.2, and 5.3 hereof shall be binding upon the Property and the Developer and its successors and assigns and shall remain in effect in perpetuity.
5.6 City Right to Repurchase for Failure to Commence or Complete Construction. If the Developer shall fail to commence construction of the Improvements on or prior to the Commencement Date or complete the construction of the Improvements on or prior to the Completion Date, both subject to force majeure delays as provided in Section 7.9, the City may give written notice (a “Breach Notice”) of such breach to the Developer and, if applicable, to any Holder. The Developer shall have a period of sixty (60) days after the date of the Breach Notice to cure said breach, or if a cure is not possible within such sixty (60) day period, to commence such cure within such 60-day period and diligently prosecute the same to completion, which shall in any event not exceed one hundred twenty (120) days from the date of the Breach Notice. In the event that the Developer shall fail to cure such breach within such period, the City shall have the right, at its option, to repurchase, reenter and take possession of the Property with all improvements thereon. To exercise its rights to repurchase, reenter and take possession of the Property, the City shall pay to the Developer, in cash, an amount equal to:
5.6.1 the Purchase Price paid to the City for the Property; plus
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5.6.2 any and all sums outstanding under any Holder’s mortgage or deed of trust encumbering the Property or the Improvements and any prepayment premium and expenses related thereto; plus
5.6.3 Any increase in the appraised value of the Property from any Improvements thereon.
5.6.3.1 The property shall be appraised from the date of the written Breach Notice. Should the Property appraise at a lower value than the Purchase Price paid to the City for the Property, the City will pay the amounts outlined in Paragraphs 5.6.1 and 5.6.2.
5.6.3.2 The City shall also have the right to receive any and all building plans, engineering plans, landscape plans, architecture plans, and design plans, including any intellectual property of the Developer or the Developer’s employees, assignees, independent contractors, or consultants so the City may, in its discretion, complete the Project. City shall have no right to receive the logo, trademarks, copyrights, or trade dress of Developer. City shall not have the right to operate the Project under Developer’s name, image, or likeness.
The City’s right to repurchase, reenter and take possession of the Property pursuant to this Section 5.6 must be exercised, if at all, by giving sixty (60) days written notice to the Developer within six (6) months after the act or failure to act giving rise to such right. The City shall repurchase, reenter and take possession of the Property by closing escrow within six (6) months after giving such notice.
5.7 Right of First Refusal to Purchase. The Developer shall not sell the Property or Improvements without first giving written notice thereof to the City, which notice is hereinafter referred to as the “Notice of Sale”. The Notice of Sale shall include the exact and complete terms of the proposed sale and shall have attached thereto a photocopy of any bona fide offer and counteroffer duly executed by the Developer and a prospective purchaser. For a period of twenty (20) business days after receipt by the City of the Notice of Sale, the City shall have the right to give written notice to the Developer of the City’s exercise of its right to purchase the Property and/or Improvements (as applicable), on the same terms, price and conditions as set forth in the Notice of Sale. In the event the Developer does not receive written notice of the City's exercise of the right to purchase herein granted within such twenty (20) business days, there shall be a conclusive presumption that the City has elected not to exercise its right to purchase and the Developer may sell the Property and/or Improvements on the same terms set forth in the Notice of Sale. Notwithstanding any other terms of the proposed sale, if the City elects to exercise its right of purchase, escrow shall not be required to close in less than thirty (30) days after the Developer’s receipt of the City’s notice of election to purchase. If the consideration to be provided by a prospective purchaser is other than cash or deferred payment, such as an exchange, then the fair market value of the consideration shall he determined by agreement of the Developer and the City, or if the parties cannot agree, by an appraisal to be prepared by an appraiser mutually and reasonably acceptable to the Developer and the City. In the event that the City declines to exercise its right of first refusal to purchase after receipt of the Notice of Sale, and, thereafter, the Developer and the prospective purchaser modify by more than five percent (5%), (i) the sales price, (ii) the amount of down payment, (iii) the aggregate of the interest payable on a deferred purchase price,
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or (iv) the sale to the prospective purchaser is not consummated within thirty (30 days of the date of the Notice of Sale, then the City’s right of first refusal shall be reinstated on the same terms and conditions as hereinabove set forth in this Section 5.7.
ARTICLE 6
EVENTS OF DEFAULT, REMEDIES AND TERMINATION
6.1 Developer Events of Defaults. Occurrence of any or all of the following, if uncured after the expiration of any applicable cure period, shall constitute a default (“Developer Event of Default”) under this Agreement:
6.1.1 The Developer’s failure to commence construction of the Improvements or to complete construction of the Improvements as provided herein and the Developer’s failure to cure such breach as provided in Section 5.6, provided that such failure is not due to causes beyond the Developer’s control as provided in Section 7.9; or
6.1.2 The Developer’s sale, lease, or other transfer, or the occurrence of any involuntary transfer, of the Property or any part thereof or interest therein in violation of this Agreement; or
6.1.3 The Developer’s neglect, failure or refusal to keep in force and effect any permit or approval with respect to development of the Project (and the City shall reasonably cooperate with the Developer as to the same), unless such failure is due to causes beyond the Developer’s reasonable control as provided in Section 7.9, or any policy of insurance required hereunder, and, so long as such failure is not caused by any wrongful act of the City, the Developer’s failure to cure such breach within thirty (30) days after receipt of written notice from the City of the Developer’s breach; or
6.1.4 Filing of a petition in bankruptcy by or against the Developer or appointment of a receiver or trustee of any property of the Developer, or an assignment by the Developer for the benefit of creditors, or adjudication that the Developer is insolvent by a court, and the failure of the Developer to cause such petition, appointment, or assignment to be removed or discharged within ninety (90) days; or
6.1.5 The Developer’s failure to perform any requirement or obligation of Developer set forth herein or in the Schedule of Performance, other than as described in Section
5.7 above, on or prior to the date for such performance set forth herein or in the Schedule of Performance (subject to delays pursuant to Section 7.9), and, so long as such failure is not caused by any wrongful act of the City, the Developer’s failure to cure such breach within thirty (30) days after receipt of written notice from the City of the Developer’s breach; or
6.1.6 The Developer’s failure to deposit with Escrow Holder the Deposit or the balance of the Purchase Price as required by Section 2.2.
6.2 City Events of Default. Occurrence of any or all of the following, if uncured after the expiration of the applicable cure period, shall constitute a default (“City Event of Default”, and together with the Developer Event of Default, a “Default”) under this Agreement:
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6.2.1 The City, in violation of the applicable provision of this Agreement, fails to convey the Property to the Developer at the Close of Escrow; or
6.2.2 The City breaches any other material provision of this Agreement.
Upon the occurrence of any of the above-described events in Section 6.2, the Developer shall first notify the City in writing of its purported breach or failure, giving the City thirty (30) days from receipt of such notice to cure such breach or failure (other than a failure by the City to convey the Property at the Close of Escrow, for which there shall be no cure period) or if a cure is not possible within the thirty (30) day period, to begin such cure and diligently prosecute the same to completion, which shall, in any event, not exceed one hundred eighty (180) days from the date of receipt of the notice to cure.
6.3 Remedies in the Event of Default.
6.3.1 Remedies General. In the event of a breach or a default under this Agreement by either the Developer or the City, prior to the Close of Escrow, the non-defaulting party shall have the right to terminate this Agreement by providing ten (10) days written notice thereof to the defaulting party. If such breach or default is not cured within such ten (10) day period (other than a failure by the City to convey the Property at the Close of Escrow, for which there shall be no cure period), this Agreement and the Escrow for the purchase and sale of the Property shall terminate, and if the Developer is the non-defaulting party, the Developer shall thereupon promptly receive a refund of the Deposit and all interest accrued thereon. Except as herein otherwise expressly provided, such termination of the Escrow by a non-defaulting party shall be without prejudice to the non-defaulting party’s rights and remedies against the defaulting party at law or equity.
In the event of a Default under this Agreement after the Close of Escrow, the non-defaulting party may seek against the defaulting party any available remedies at law or equity, including but not limited to the right to receive reimbursement for its documented out-of-pocket costs relating to this purchase transaction or to pursue an action for specific performance, but in no event shall such non-defaulting party be entitled to receive any consequential or special damages. In addition, the City shall have the right to repurchase and reenter the Property as set forth in Section 5.6.
IF THE DEVELOPER FAILS TO COMPLETE THE ACQUISITION OF THE
PROPERTY AS HEREIN PROVIDED BY REASON OF ANY DEFAULT OF THE
DEVELOPER, IT IS AGREED THAT THE DEPOSIT SHALL BE NON-REFUNDABLE AND
THE CITY SHALL BE ENTITLED TO SUCH DEPOSIT, WHICH AMOUNT SHALL BE
ACCEPTED BY THE CITY AS LIQUIDATED DAMAGES AND NOT AS A PENALTY AND AS THE CITY'S SOLE AND EXCLUSIVE REMEDY. IT IS AGREED THAT SAID AMOUNT
CONSTITUTES A REASONABLE ESTIMATE OF THE DAMAGES TO THE CITY PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671 ET SEQ. THE CITY AND THE
DEVELOPER AGREE THAT IT WOULD BE IMPRACTICAL OR IMPOSSIBLE TO
PRESENTLY PREDICT WHAT MONETARY DAMAGES THE CITY WOULD SUFFER
UPON THE DEVELOPER'S FAILURE TO COMPLETE ITS ACQUISITION OF THE PROPERTY. THE DEVELOPER DESIRES TO LIMIT THE MONETARY DAMAGES FOR
WHICH IT MIGHT BE LIABLE HEREUNDER AND THE DEVELOPER AND THE CITY
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DESIRE TO AVOID THE COSTS AND DELAYS THEY WOULD INCUR IF A LAWSUIT
WERE COMMENCED TO RECOVER DAMAGES OR OTHERWISE ENFORCE THE CITY'S RIGHTS. IF FURTHER INSTRUCTIONS ARE REQUIRED BY ESCROW HOLDER TO
EFFECTUATE THE TERMS OF THIS PARAGRAPH, THE DEVELOPER AND THE CITY AGREE TO EXECUTE THE SAME. THE PARTIES ACKNOWLEDGE THIS PROVISION BY PLACING THEIR INITIALS BELOW:
City Developer
6.3.2 Liberal Construction. The rights established in this Agreement are to be interpreted in light of the fact that the City will convey the Property to the Developer for development and operation of the Project thereon and not for speculation in undeveloped land or for construction of different improvements. The Developer acknowledges that it is of the essence of this Agreement that the Developer is obligated to complete all Improvements comprising the Project.
6.4 No Personal Liability. Except as specifically provided herein to the contrary, no representative, employee, attorney, agent or consultant of the City shall personally be liable to the Developer, or any successor in interest of the Developer, in the event of any Default or breach by the City, or for any amount which may become due to the Developer, or any successor in interest, on any obligation under the terms of this Agreement.
6.5 Legal Actions.
6.5.1 Institution of Legal Actions. Any legal actions brought pursuant to this Agreement must be instituted in either the Superior Court of the County of San Joaquin, State of California, or in the federal Eastern District of California.
6.5.2 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement.
6.5.3 Acceptance of Service of Process. If any legal action is commenced by the Developer against the City, service of process on the City shall be made by personal service upon the City Clerk of the City, or in such other manner as may be provided by law. If any legal action is commenced by the City against the Developer, service of process on the Developer shall be made by personal service upon the Developer, or in such other manner as may be provided by law, including upon the Developer’s Agent for Service of Process, whether made within or without the State of California.
6.6 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same Default or any other Default by the other party.
6.7 Inaction Not a Waiver of Default. Except as expressly provided in this Agreement to the contrary, any failure or delay by either party in asserting any of its rights and remedies as to
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any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such party of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.
ARTICLE 7
GENERAL PROVISIONS
7.1 Insurance.
7.1.1 Prior to commencement of any demolition or construction work on the Property by the Developer, the Developer shall obtain (or cause the Developer’s general constructor to obtain), at the Developer’s sole cost and expense, and shall maintain in force until completion of construction of the Improvements, with a reputable and financially responsible insurance company reasonably acceptable to the City, broad form commercial general public liability insurance, insuring the Developer and the City against claims and liability for bodily injury, death, or property damage arising from the use, occupancy, condition, or operation of the Property and the Improvements thereon, which insurance shall provide combined single limit protection of at least Two Million Dollars ($2,000,000), and include contractual liability endorsement. Such insurance shall name the City and its respective council members, officers, agents, employees, consultants, independent contractors, and attorneys as additional insureds.
7.1.2 Prior to commencement of any demolition or construction work on the Property by the Developer, the Developer shall also obtain, or cause to be obtained, at the Developer’s sole cost and expense, and shall maintain in force until completion of the construction of the Improvements, with a reputable and financially responsible insurance company reasonably acceptable to the City (i) “all risk” builder’s risk insurance, including coverage for vandalism and malicious mischief, in a form and amount and with a reputable and financially responsible insurance company reasonably acceptable to the City, and (ii) workers’ compensation insurance covering all persons employed in connection with work. The builder’s risk insurance shall cover improvements in place and all material and equipment at the job site furnished under contract, but shall exclude contractors’, subcontractors’, and construction managers’ tools and equipment and property owned by contractors’ and subcontractors’ employees.
7.1.3 Prior to the commencement of any demolition or construction work on the Property by the Developer, the Developer shall also furnish or cause to be furnished to the City evidence satisfactory to the City that any contractor with whom it has contracted for the performance of work on the Property carries workers’ compensation insurance as required by law.
7.1.4 With respect to each policy of insurance required above, the Developer shall furnish a certificate of insurance countersigned by an authorized agent of the insurance carrier on the insurance carrier’s form setting forth the general provisions of the insurance coverage. The required certificate shall be furnished by the Developer prior to commencement of any demolition or construction work on the Property.
7.1.5 All such policies required by this Section shall be nonassessable and shall contain language to the effect that (i) the policies cannot be canceled or materially changed except after thirty (30) days’ written notice by the insurer to the City, and (ii) the City shall not be
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liable for any premiums or assessments. All such insurance shall have deductibility limits reasonably satisfactory to the City. The provisions of this Section shall survive the Close of Escrow and the recordation of the Grant Deed and shall not be deemed merged into the Grant Deed upon its recordation.
7.2 Indemnity.
7.2.1 Except for the gross negligence or willful misconduct of the City, the Developer shall indemnify, defend, protect, and hold harmless the City and any and all agents, employees, council members, attorneys and representatives of the City, from and against all losses, liabilities, claims, damages (including consequential damages), penalties, fines, forfeitures, costs and expenses (including all reasonable out-of-pocket litigation costs and reasonable attorneys’ fees) and demands of any nature whatsoever, related directly or indirectly to, or arising out of or in connection with:
(a) the Developer’s use, ownership, management, occupancy, or possession of the Property;
(b) the validity of this Agreement;
(c) any breach or Default of the Developer hereunder;
(d) any of the Developer’s activities on the Property (or the activities of the Developer’s agents, employees, lessees, representatives, licensees, guests, invitees, contractors, subcontractors, or independent contractors on the Property), including without limitation the construction of any Improvements on the Property; (e) the presence or clean-up of Hazardous Substances on, in or under the Property to the extent the same was caused by the Developer or the Developer’s affiliates, agents or employees; or,
(f) any other fact, circumstance or event related to the Developer’s performance hereunder, or which may otherwise arise from the Developer’s ownership, use, possession, improvement, operation or disposition of the Property, regardless of whether such damages, losses and liabilities shall accrue or are discovered before or after termination or expiration of this Agreement, or before or after the conveyance of the Property.
The Developer’s indemnity obligations set forth in this Section 7.2 shall not extend to any damages, losses, or liabilities incurred by the City to the extent such losses or liabilities are caused by or contributed to by the gross negligence or willful misconduct of the City, as finally determined by a court of competent jurisdiction.
7.2.2 The indemnity obligations described in this Section 7.2 shall survive for a period of four (4) years from the earlier of (i) the termination of this Agreement, or (ii) the completion of the Improvements, and shall not be deemed merged into the Grant Deed upon the recordation.
7.3 Notices. All notices and demands shall be given in writing by certified mail,
ATTACHMENT 2
24 2446243.9 13645.016
postage prepaid, and return receipt requested, by nationally recognized overnight courier, by personal delivery, or by legible facsimile transmission. Notices shall be considered given upon the earlier of (a) personal delivery, (b) three (3) business days following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, (c) the next business day after deposit with a nationally reorganized overnight courier, or (d) in the case of facsimile transmission, as of the date of the facsimile transmission provided that an original of such facsimile is also sent to the intended addressee by means described in clauses (a), (b) or (c) above, in each instance addressed to the recipient as set forth below. Notices shall be addressed as provided below for the respective party; provided that if any party gives notice in writing of a change of name or address, notices to such party shall thereafter be given as demanded in that notice:
City: City of Manteca
1001 West Center Street
Manteca, California 95337
Attention: Toni Lundgren, City Manager
Telephone: (209) 456-8000
Email: [email protected]
With a copy to: Kronick Moskovitz Tiedemann & Girard
1331 Garden Hwy., 2nd Floor
Sacramento, California 95833
Attention: Amara Harrell
Telephone: (916) 321-4598
Email: [email protected]
Developer: Kevin Youkilis
130 N. Santa Cruz Avenue, Suite G
Los Gatos, California 95030
Attention: Kevin Youkilis
Telephone: 617-529-0020
Email: [email protected]
With a copy to: Loma Holdings, INC.
c/o Georgopoulos & Economidis, LLP
235 Montgomery Street, Suite 600
San Francisco, CA 94104
Attention: Zach Georgopolous
Telephone: (415) 986-4001
Email: [email protected]
7.4 Construction. The parties agree that each party and its counsel have reviewed and revised this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement or any amendments or exhibits thereto.
///
ATTACHMENT 2
25 2446243.9 13645.016
///
ATTACHMENT 2
26 2446243.9 13645.016
7.5 Developer’s Warranties. The Developer warrants and represents to the City as follows:
7.5.1 The Developer has full power and authority to execute and enter into this Agreement and to consummate the transactions contemplated hereunder. This Agreement constitutes the valid and binding agreement of the Developer, enforceable in accordance with its terms subject to bankruptcy, insolvency of other creditors’ rights laws of general application.
Neither the execution nor delivery of this Agreement, nor the consummation of the transactions covered hereby, nor compliance with the terms and provisions hereof, shall conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, any agreement or instrument to which the Developer is a party.
7.5.2 As of the Close of Escrow, the Developer will have inspected the Property and will be familiar with all aspects of the Property and its condition, and will accept such condition.
7.5.3 The Developer has not paid or given, and will not pay or give, to any third person, any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers and attorneys.
7.5.4 The Developer has not authorized any broker or finder to act on its behalf in connection with the sale and purchase hereunder other than Dana Ugenti, Tandem Real Estate.
Developer agrees to pay any brokers fees, and agrees to save and hold the City and its City Council members, directors, officers, employees, agents, successors and assigns, free, clear and harmless from any claim, cost or expense, including reasonable attorneys’ fees, for or in connection with any claim for commissions or compensation claimed or asserted by or through the Developer in connection with the transaction contemplated herein. The provisions of this Section 7.5.4 shall survive Close of Escrow or any termination of this Agreement.
7.6 Interpretation. In this Agreement the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words “person” and “party” include corporation, partnership, firm, trust, or association where ever the context so requires.
7.7 Time of the Essence. Time is of the essence of this Agreement.
7.8 Attorneys’ Fees. If any party brings an action to enforce the terms hereof or declare its rights hereunder, the prevailing party in any such action shall be entitled to its reasonable attorneys’ fees to be paid by the losing party as fixed by the court. If the City, or the Developer, without fault, is made a party to any litigation instituted by or against the other party, such other party shall defend it against and save it harmless from all costs and expenses including reasonable attorneys’ fees incurred in connection with such litigation.
7.9 Enforced Delay: Extension of Times of Performance. Notwithstanding anything to the contrary in this Agreement, unexcused failure to commence construction of the Improvements on or prior to the Commencement Date or to complete construction of the Improvements on or prior to the Completion Date shall constitute a Default hereunder as herein set forth; provided, however, nonperformance of such obligations or any other obligations to be performed hereunder
ATTACHMENT 2
27 2446243.9 13645.016
shall be excused when performance is prevented or delayed by reason of any of the following forces reasonably beyond the control of the party responsible for such performance: (i) war, insurrection, riot, flood, severe weather, earthquake, fire, casualty, acts of public enemy, governmental restriction, litigation, acts or failures to act of any governmental or quasi-governmental agency or entity, including the City, or public utility, or any declarant under any applicable conditions, covenants, and restrictions affecting the Property, or (ii) inability to secure necessary labor, materials or tools, strikes, lockouts, delays of any contractor, subcontractor or supplier or (iii) other matters or event that is not due to the fault or neglect of the developer and is beyond the reasonable control of Developer and/or generally constituting a force majeure event in circumstances similar to those contemplated by this Agreement (but which shall not in any event include the availability of financing to construct the Improvements). Developer shall give the City written notice within thirty (30) days of the commencement of any force majeure events, explaining the nature or cause of the delay and stating the period of time the delay is expected to continue. Developer shall use commercially reasonable efforts to minimize the effects of any force majeure events. In the event of an occurrence described in clauses (i), (ii) or (iii) above, such nonperformance shall be excused and the time of performance shall be extended by the number of days the matters described in clauses (i), (ii) or (iii) above materially prevent or delay performance.
7.10 Approvals by the City and the Developer. Unless otherwise specifically provided herein, wherever this Agreement requires the City or the Developer to approve any contract, document, plan, proposal, specification, drawing or other matter, such approval shall not unreasonably be withheld, conditioned or delayed.
7.11 Developer’s Private Undertaking. The development covered by this Agreement is a private undertaking, and the Developer shall have full power over and exclusive control of the Property while the Developer holds title to the Property; subject only to the limitations and obligations of the Developer under this Agreement.
7.12 Entire Agreement, Waivers and Amendments. This Agreement is executed in duplicate originals, each of which is deemed to be an original. This Agreement, together with all attachments and exhibits hereto, constitutes the entire understanding and agreement of the parties.
This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to the subject matter hereof. No subsequent agreement, representation or promise made by either party hereto, or by or to any employee, officer, agent or representative of either party, shall be of any effect unless it is in writing and executed by the party to be bound thereby. No person is authorized to make, and by execution hereof the Developer and the City acknowledge that no person has made, any representation, warranty, guaranty or promise except as set forth herein; and no agreement, statement, representation or promise made by any such person which is not contained herein shall be valid or binding on the Developer or the City.
7.13 Counterparts. This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
7.14 Severability. Each and every provision of this Agreement is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this
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28 2446243.9 13645.016
Agreement or the application thereof shall to any extent be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected hereby, and each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law.
7.15 Survival. The provisions hereof shall not terminate but rather shall survive any conveyance hereunder and the delivery of all consideration.
7.16 Representations of the City. The City represents to the Developer as follows:
7.16.1 The City has full power and authority to execute and enter into this Agreement and to consummate the transactions contemplated hereunder. This Agreement constitutes the valid and binding agreement of the City, enforceable in accordance with its terms subject to bankruptcy, insolvency and other creditors’ rights laws of general application. Neither the execution nor delivery of this Agreement, nor the consummation of the transactions covered hereby, nor compliance with the terms and provisions hereof, shall conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, any agreement or instrument to which the City is a party.
7.16.2 As of the Effective Date and the Close of Escrow, the Property is not presently the subject of any condemnation or similar proceeding, and to the City’s knowledge, no such condemnation or similar proceeding is currently threatened or pending.
7.16.3 There are no management, service, supply or maintenance contracts affecting the Property which shall affect the Property on or following the Close of Escrow.
7.16.4 The City has not authorized any broker or finder to act on its behalf in connection with the sale and purchase hereunder and the City has not dealt with any broker or finder purporting to act on behalf of the City or otherwise.
7.16.5 There are no leases or other occupancy agreements affecting the Property which shall affect the Property on or following the Close of Escrow.
7.16.6 The City has not received any written notice from any governmental entity regarding the violation of any law or governmental regulation with respect to the Property. (Signatures on Next Page)
ATTACHMENT 2
29 2446243.9 13645.016
IN WITNESS WHEREOF, the parties hereto have entered into this agreement as of the day and year first above written.
“Developer” By:
Name: Kevin Youkilis
“City” City of Manteca,
a California municipal corporation
By:
Name: Toni Lundgren
Title: City Manager
ATTEST:
By:
Cassandra Candini-Tilton, City Clerk
APPROVED AS TO FORM:
Kronick Moskovitz Tiedemann & Girard
a professional corporation
By:
Amara Harrell
ATTACHMENT 2
30 2446243.9 13645.016
LIST OF EXHIBITS
Exhibit “A” Legal Description of the Property
Exhibit “B” Schedule of Performance
Exhibit “C” Form of Grant Deed
Exhibit “D” Improvements
Exhibit “E” Form of Certificate of Completion
Exhibit “F” Notice of Affordability
Exhibit “G” Form of Parking and Access Agreement
ATTACHMENT 2
2446243.9 13645.016 A-1
EXHIBIT “A”
LEGAL DESCRIPTION OF THE PROPERTY
[To be provided.]
ATTACHMENT 2
ATTACHMENT 2
2446243.9 13645.016 B-1
EXHIBIT “B”
SCHEDULE OF PERFORMANCE
Activity Time Frame
Developer reviews and approves or
disapproves the title report
Within thirty (30) days after the Developer’s
receipt of the Title Report and the Survey, if
any
Developer reviews and approves or
disapproves physical condition of the
Property
On or prior to the end of the Due Diligence
Period
Close of Escrow Within sixty (60) days following the
expiration of the Due Diligence Period
Submission - Preliminary Plans and
Specifications required for Planning
Department Approval. Developer shall
submit for City review.
Completed
City Approval of Preliminary Plans and
Specifications
Completed
Submission - Final Plans and Specifications.
Developer shall submit for City review.
Completed
City Approves Final Construction Plans and
Specifications
Completed
Developer Submission of Landscaping Plans Completed or As soon as practicable City Approval of Offsite Landscaping Plans Completed or As soon as practicable Developer submits evidence of construction
financing and executed Construction Contract
for Improvements to City
Prior to Close of Escrow
Land Use Approvals. Developer receives all
required land use and building approvals from
City and other governmental entities (if any)
Completed
Developer enters into parking agreement At close of escrow.
ATTACHMENT 2
2446243.9 13645.016 B-2
Activity Time Frame
Developer Commences Construction of
Improvements
Within one hundred eighty (180) days after the
Close of Escrow
Developer Completes Construction of
Improvements
Within three hundred sixty (360) days
following commencement of construction
Issuance of Certificate of Completion. Upon
completion of construction in conformance
with Agreement, the City Executive Director
or designee shall issue a Certificate of
Completion for the Improvements.
Promptly after City receives written request
from Developer if all requirements of the
Agreement have been satisfied
ATTACHMENT 2
2446243.9 13645.016 C-1
EXHIBIT “C”
FORM OF GRANT DEED
SPACE ABOVE THIS LINE FOR RECORDER’S USE
This Document is recorded for the benefit of the City of Manteca and is exempt from recording fees pursuant to Sections 6103, 27383 and 27388.1 of the California Government Code.
GRANT DEED
DOCUMENTARY TRANSFER TAX $
…Computed on the consideration or value of property
conveyed; OR
…Computed on the consideration or value less liens or
encumbrances remaining at time of sale.
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Signature of Declarant or Agent determining tax - Firm Name THE UNDERSIGNED GRANTOR DECLARES:
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, the CITY OF MANTECA, a California municipal corporation (the “Grantor”), hereby grants to Kevin Youkilis (the “Grantee”), that certain real property described in Exhibit A attached hereto (the “Site”) and incorporated herein by this reference, together with all of Grantor’s right title and interest in and to all easements, privileges and rights appurtenant to the Site.
This Grant Deed of the Site is subject to the provisions of a Disposition and Development Agreement (the “Agreement”) entered into by and between the Grantor and Grantee dated as of , 2024, the terms of which are incorporated herein by reference. A copy of the Agreement is available for public inspection at the offices of the Grantor located at 1001 W. Center St., Manteca, CA 95337. The Site is conveyed further subject to all easements, rights of way, covenants, conditions, restrictions, reservations and all other matters of record, and the following conditions, covenants and agreements.
1. The Site as described in Exhibit A is conveyed subject to the condition that the Grantee covenants and agrees for itself, and its successors and its assigns, that the Grantee, such successors, and such assignees shall in perpetuity:
RECORDING REQUESTED BY:
AND WHEN RECORDED RETURN TO:
City of Manteca
1001 W. Center Street
Manteca, CA 95337
Attention:
ATTACHMENT 2
2446243.9 13645.016 C-2
(a) use the Site, and every part thereof, only for the construction of certain improvements thereon as described in the Agreement and thereafter for any use allowed under applicable law, and
(b) following the date of completion of construction of the Project (as defined in the Agreement), maintain the Site and the Project (including landscaping) in a commercially reasonable condition and repair to the extent practicable and in accordance with industry health and safety standards.
As provided in Section 5.7 of the Agreement, upon the violation or failure of the foregoing covenants, the Grantor shall have the right to reenter and repurchase the Site from the Grantee or its successors and assigns; provided, however, that the Grantor’s right to reenter and repurchase shall not arise unless and until the Grantor gives the Grantee written notice thereof specifying the particular failure or violation in the manner and time period provided in Section 5.7 of the Agreement and, at the expiration of the cure period specified in Section 5.7 of the Agreement, the failure has not been remedied or the violation has not ceased.
In addition, the city has a right of first refusal with respect to the Site as set forth in Sections 5.6 and 5.7 of the Agreement.
2. The Site is also conveyed subject to the condition that Grantee, in perpetuity, shall not discriminate against or segregation of any person, or group of persons, on account of sex, marital status, age, handicap, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, and the Grantee (itself or any person claiming under or through the Grantee) shall not 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, subtenants, sublessees, or vendees of the Site or any portion thereof. Notwithstanding the foregoing, if and when the Grantee conveys the Site to a third party after completion of the Improvements thereon in accordance with the Agreement, the Grantee shall be relieved of any further responsibility under this Section as to the Site so conveyed.
3. All covenants and agreements contained in this Grant Deed shall run with the land and shall be binding for the benefit of Grantor and its successors and assigns and such covenants shall run in favor of the Grantor and its successors and for the entire period during which the covenants shall be in force and effect as provided herein. The Grantor, in the event of any breach of any such covenants, shall have the right to exercise all of the rights and remedies provided herein or otherwise available, and to maintain any actions at law or suits in equity or other property proceedings to enforce the curing of such breach. The covenants contained in this Grant Deed shall be for the benefit of and shall be enforceable only by the Grantor and its successors and assigns.
5. This Grant Deed may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
ATTACHMENT 2
2446243.9 13645.016 C-3
IN WITNESS WHEREOF, Grantor and Grantee have caused this Grant Deed to be executed and notarized as of this day of , 2024.
GRANTOR: CITY OF MANTECA,
a California municipal corporation
By:
Name: Toni Lundgren
Title: City Manager
ATTEST:
By:
Cassandra Candini-Tilton, City Clerk
GRANTEE: By:
Name: Kevin Youkilis
ATTACHMENT 2
2446243.9 13645.016 C-4
CALIFORNIA ALL-PURPOSE 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 SAN JOAQUIN
On 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, and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) 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.
Place Notary Seal Above
Signature of Notary Public
ATTACHMENT 2
2446243.9 13645.016 C-5
CALIFORNIA ALL-PURPOSE 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 SAN JOAQUIN
On 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, and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) 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.
Place Notary Seal Above
Signature of Notary Public
ATTACHMENT 2
2446243.9 13645.016 C-6
CALIFORNIA ALL-PURPOSE 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 SAN JOAQUIN
On 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, and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) 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.
Place Notary Seal Above
Signature of Notary Public
ATTACHMENT 2
2446243.9 13645.016 C-7
CALIFORNIA ALL-PURPOSE 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 SAN JOAQUIN
On 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, and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) 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.
Place Notary Seal Above
Signature of Notary Public
ATTACHMENT 2
2446243.9 13645.016 C-8
EXHIBIT A
LEGAL DESCRIPTION
[To be provided]
ATTACHMENT 2
ATTACHMENT 2
2446243.9 13645.016 D-1
EXHIBIT “D”
IMPROVEMENTS
[The Improvements are shown on the attached schematic and shall consist of a . [Insert
description of Improvements, approximate square footage, uses, etc.] This Exhibit “D” shall be deemed controlling with respect to any conflict regarding the description of the Improvements as contained in this Exhibit “D” and the attached schematic. [Schematic of Improvements to be Attached.]
ATTACHMENT 2
(;,7 (;,7 (;,7
(;,7
SIGN, N.I.C.EXISITNG MONUMENT
COMPLETION OF PROJECTY WORK, S.C.D.PROVIDE FINAL ROUGH GRADE AT AREA, N.I.C.
EXISTING PARKING LOT, N.I.C.
S.C.D. AND S.L.D.DEVELOPMENT, NEW GAME AREA
AREA OF NEW WORK
/20$%5(:,1*&203$1<
0$17(&$7$35220
$31
(;,7
ACCESSIBLE PARKING(N) STRIPED WALK TO PROPOSED(N) ACCESSIBLE PARKING STALLS SEE SHEET A4ENCLOSURE(N) PROPOSED TRASH
BUILDING(N) SERVICE RAMP TOLOCATION(N) BIKE RACK (N) ACCESSIBLE SIDEWALK
PUBLIC WAYOF TRAVEL TOACCESSIBLE PATH
BUILDING LEVEL(N) SITE STAIRS UP TO
LEVELTO PUBLIC SIDEWALK(N) SITE STAIRS UP (N) TRENCH DRAIN GRASS GAME AREA. S.L.D.PLANTER BOX AROUND
AREACOVERD PATIO
FUTURE KITCHENCOLD SHELL FOR
YARD(N) OUTDOOR MECHANICAL
'$1,(/6675((7
0,/2&$1',1,675((7
PROPERTY LINE
PROPERTY LINE
PROPERTY LINE
PROPERTY LINE
14' x 40' TRUCK
ACCESS FOR
TRASH ENCLOSURE
12 4 8
SCALE: 1/4" = 1'-0"
352-(&7
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/20$%5(:,1*&203$1<6,7(3/$1
$
0$17(&$&$
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$66(6625
63$5&(/180%(5
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0$17(&$*(1(5$/3/$1=21,1*
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6,7(
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6)3(5&(17$*(2)727$/6,7($6/$1'6&$3('3(5&%&%$&&(66,%/(3$5.,1*63$&(686,1*(;,67,1*3$5.,1*9(+,&/(3$5.,1*5(48,5('3$5.,1* 0,15(48,5('
2)6(&7,21
0,1,0807:23(5&*%&6(&7,213529,'($%,&<&/(3$5.,1*$&&(66,%/(3$5.,1*5(48,5(' %,.(3(50$1(17/<$1&+25('
9,6,7256(175$1&(%,&<&/(5$&.6:,7+,1)((72)7+(
Exhibit D
ATTACHMENT 2
2446243.9 13645.016 E-1
EXHIBIT “E”
FORM OF CERTIFICATE OF COMPLETION
SPACE ABOVE THIS LINE FOR RECORDER’S USE
This Document is recorded for the benefit of the City of Manteca and is exempt from recording fees pursuant to Sections 6103, 27383 and 27388.1 of the California Government Code.
CERTIFICATE OF COMPLETION
This Certificate of Completion is given this day of , 2023, with reference to the following matters:
A. The CITY OF MANTECA, a California municipal corporation (the “City”) and KEVIN YOUKILIS (the “Developer”) entered into a certain Disposition and Development Agreement dated as of , 2023 (the “Agreement”), which Agreement provides, in Section 3.12 thereof, that the City shall furnish the Developer with a Certificate of Completion upon satisfactory completion of the Improvements (as described in the Agreement) on the real property described therein as the Property (the “Site”), which certificate shall be in such form as to permit it to be recorded in the Recorder’s Office of San Joaquin County; and B. The Certificate of Completion shall be conclusive determination of satisfactory completion of the construction of Improvements required with respect to the Site; and C. The City has determined that the construction of the Improvements has been satisfactorily performed; and
NOW, THEREFORE, the parties to this instrument hereby provide as follows:
1. As provided in the Agreement, the City does hereby certify that the construction of the Improvements on the Site has been satisfactorily performed and completed.
RECORDING REQUESTED BY:
AND WHEN RECORDED RETURN TO:
City of Manteca
1001 W. Center Street
Manteca, CA 95337
Attention: Toni Lundgren
ATTACHMENT 2
2446243.9 13645.016 E-2
2. This Certificate shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or deed of trust or any insurer of a mortgage, or deed of trust securing money loaned to finance the improvements or any part thereof, nor does it constitute evidence of payment of any promissory note or performance of any deed of trust provided by the Developer to the City under the Agreement or otherwise.
CITY OF MANTECA,
a California municipal corporation
By:
Name: Toni Lundgren
Title: City Manager
ATTEST:
By:
Cassandra Candini-Tilton, City Clerk
ATTACHMENT 2
2446243.9 13645.016 E-3
CALIFORNIA ALL-PURPOSE 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 SAN JOAQUIN
On 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, and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) 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.
Place Notary Seal Above
Signature of Notary Public
ATTACHMENT 2
2446243.9 13645.016 F-1
EXHIBIT “F”
FORM OF NOTICE OF AFFORDABILITY
(Attached.)
ATTACHMENT 2
2446243.9 13645.016 F-2
SPACE ABOVE THIS LINE FOR RECORDER’S USE
This Document is recorded for the benefit of the City of Manteca and is exempt from California recording fees pursuant to Sections 6103, 27383 and 27388.1 of the California Government Code.
COVENANTS AND RESTRICTIONS FOR REAL PROPERTY
(per Government Code Section 54233)
This COVENANTS AND RESTRICTIONS FOR REAL PROPERTY is executed as of , 2024, by the City of Manteca (“Owner”).
RECITALS
WHEREAS, Owner is the owner of certain real property located in the City of Manteca, County of San Joaquin, California, which is legally described in the attached and incorporated Exhibit “A” (the “Property”);
WHEREAS, Assembly Bill 1486 amended the Surplus Land Act (Government Code Section 54220 et. seq.) and created certain obligations before a local agency may dispose of surplus land; and
WHEREAS, certain affordability covenants and restrictions are required to be recorded against surplus land pursuant to Government Code Section 54233.
NOW, THEREFORE, in consideration of the foregoing, the Owner declares as follows:
A. If ten (10) or more residential units are developed on the Property, then not less than 15 percent of the total number of residential units developed on the Property shall be sold or rented at an affordable housing cost, as defined in Section 50052.5 of the California Health and Safety Code, or affordable rent, as defined in Section 50053 of the California Health and Safety Code, to lower-income households, as defined in Section 50079.5 of the California Health and Safety Code. Rental units shall remain affordable to and occupied by lower-income households for a period of 55 years for rental housing and 45 years for ownership housing. The initial occupants of all ownership units shall be lower-income households, and the units shall be subject to an equity sharing agreement consistent with the provisions of paragraph (2) of subdivision (c) of 65915 of the California Government Code.
RECORDING REQUESTED BY, AND
WHEN RECORDED MAIL TO:
Attn: City Clerk
APN(s):
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B. These requirements shall be covenants and restrictions running with the land and shall be enforceable against any owner who violates a covenant or restriction and each successorin-interest who continues the violation by any of the entities described in subdivisions (a) to (f), inclusive, of Section 54222.5 of the California Government Code.
IN WITNESS WHEREOF, the undersigned has caused this Covenants and Restrictions for Real Property to be signed by its duly authorized representatives, as of the day and year first above written.
OWNER:
CITY OF MANTECA,
a California municipal corporation
By:
Name: Toni Lundgren
Title: City Manager
ATTEST:
By:
Cassandra Candini-Tilton, City Clerk
APPROVED AS TO FORM:
, City Attorney
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EXHIBIT “G”
PARKING AND ACCESS AGREEMENT
[To be provided]
ATTACHMENT 2
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PARKING LEASE
This Parking Lease (“Lease”) is entered into as of ____________, 202_ (“Effective Date”), between the City of Manteca, a California municipal corporation (the “City”), and Kevin Youkilis, an individual (the “Developer”), collectively referred to as the “Parties,” and singularly, as “Party.”
RECITALS
A. Developer owns the fee interest in that certain parcel of real property located in the City of Manteca, County of San Joaquin, State of California, as more particularly described in Exhibit A, attached hereto and incorporated herein (the “Property”), which the Developer acquired from the City pursuant to that certain Disposition and Development Agreement dated ____________, 2024 (“DDA”).
B. The DDA requires that the City and the Developer enter into a lease agreement allowing Developer to use of at least thirty-two (32) parking spaces on adjacent City-owned property for use by the brewery project to be constructed on the Property (the “Project”).
C. The City therefore desires to lease to Developer, and Developer desires to lease from the City, thirty-two (32) unreserved shared parking spaces (the "Parking Spaces") within the City’s parking lot adjacent to the Property shown it Exhibit B, attached hereto and incorporated herein (the "Parking Lot"), for use in connection with Developer’s Project on the terms and conditions contained herein.
D. The City also desires to allow Developer to construct and use a garbage enclosure within the Parking Lot for use by the Project (“Garbage Enclosure”).
NOW, THEREFORE, in consideration of the mutual covenants and conditions contained herein, and in exchange for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. Grant of Lease. The City hereby leases to Developer, and Developer hereby leases from the City, on the terms and conditions described herein, the Parking Spaces, together with the necessary rights of ingress and egress for access thereto.
2. Term. The term of this Lease shall be for fifty-five (55) years, commencing on the Effective Date, and shall terminate expire fifty-five (55) years from the Effective Date, unless otherwise terminated pursuant to the terms of this Lease (the “Initial Term”). At the end of the Initial Term, the Parties may extend the Lease by mutual agreement for a period of five (5) years, under terms and conditions reasonably agreed by the Parties (an “Extended Term”), which may include an increase in parking Rent (as defined in Section 3 below). The Initial Term plus the Extended Term are hereinafter collectively referred to as the “Term”. The Extended Term will be subject to each of the following at the time Developer requests an extension: (a) there being no applicable law prohibiting such extension; and (b) no default by Developer then exists under the Lease beyond applicable notice and cure periods. Developer shall provide notice to the City of its desire to extend the Initial Term no earlier than nine (9) months and no later than three (3) months prior to the expiration of the Initial Term. Upon agreement on the terms of the Extended Term, the Parties shall execute an amendment to this Lease to memorialize the new terms.
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3. Rent. The rental rate for the Parking Spaces shall be the fair market value of $40.63 per parking space, or One Thousand Three Hundred and 16/100 Dollars ($1,300.16) per month (“Rent”) for the first year of this Lease. Payment of Rent shall begin upon Developer’s receipt of a Certificate of Occupancy for the Project, and Developer shall pay the prorated Rent amount for the partial month in which the Certificate of Occupancy was received. Rent shall be paid in advance to the City on the first of every month thereafter for the Term of the Lease.
4. Use and Restrictions.
4.1 Use. Developer acknowledges that the Parking Lot is used by other businesses in the area and that the use of the Parking Spaces is based on a first-come, first-served, unreserved shared basis. The use of the Parking Spaces is limited to surface parking during normal Project business hours for no more than thirty-two (32) standard sized passenger vehicles to be used by Developer and its agents, employees, guests and invitees (“Developer Parties”) in connection with the Project located on the Property. If Developer desires to lease any additional parking spaces from the City, the City may approve such additional spaces in its reasonable discretion.
The Rent for such spaces shall be at the then-Rent amount for the Parking Spaces.
4.2 Parking Restrictions. Developer shall not place or attach any personal property, fixtures, or structures to the Parking Lot. The Parking Spaces shall not be used for parking of trailers, buses, utility vans, campers, heavy equipment, commercial trucks and vehicles, or other recreational or oversize vehicles; provided, that as used herein, the term "utility vans" shall not include mini-vans or similar passenger vans which accommodate eight (8) or fewer passengers.
Overnight parking is not permitted. Developer shall not commit or allow by any Developer Parties, any waste or any public or private nuisance upon the Parking Lot or Parking Spaces. Developer shall comply with all laws, rules, and orders of all federal, state, and municipal governments or agencies that may be applicable to use of the Parking Lot and Parking Spaces.
4.3 Developer Truck. Notwithstanding the terms of Section 4.2 above, Developer may park one (1) delivery van or a box truck (up to 20-ft. in length) in the area of the Parking Lot shown in Exhibit C, attached hereto and incorporated herein, including overnight parking. The parking of any larger vehicle or any additional vehicles must be approved by the City in its reasonable discretion.
4.4 Garbage Enclosure. Developer may construct a Garbage Enclosure in the Parking Lot in the area shown in Exhibit C for use by the Project. Developer agrees to maintain and keep the Garbage Enclosure and the surrounding areas in a clean and good condition at all times, including the removal of any refuse in the surrounding areas.
5. Parking Spaces As-Is. By entering into this Lease, Developer acknowledges that it has been given the opportunity to study the suitability of the Parking Lot and Parking Spaces, and has concluded, in its sole discretion, that it accepts them in their condition, with all faults and conditions. The City makes no representations as to the suitability of the Parking Lot or Parking Spaces for the use proposed by Developer. Developer acknowledges that as of the Effective Date, Developer has had full opportunity to investigate and inspect the Parking Lot and Parking Spaces, is fully familiar with their condition, and is satisfied that the Parking Lot and Parking Spaces is suitable for Developer’s intended use.
6. Repairs and Maintenance. All repair and maintenance for the Parking Spaces are the City's responsibility, except to the extent of damage caused by Developer Parties, which shall be Developer's responsibility. If the City believes that repair of any Parking Spaces or the Parking ATTACHMENT 2
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Lot is necessary due to damage caused by Developer Parties, the City shall provide written notice to Developer specifying the repair work, and cost of the repair work completed by the City.
Developer shall reimburse the City within thirty (30) days following delivery of an invoice to Developer.
7. Insurance. Developer shall be responsible for damage or destruction of any vehicles using the Parking Spaces. At all times during the Term, Developer will carry and maintain, at Developer’s sole cost and expense, the following insurance, in the amounts specified below, subject to approval by the City:
7.1 Commercial General Liability coverage including bodily injury, personal injury and property damage, including vandalism and malicious mischief, based upon, involving or arising out of the occupancy or maintenance of the Parking Spaces and all areas appurtenant thereto, with combined single limits of not less than One Million Dollars ($1,000,000.00) per occurrence, Two Million Dollars ($2,000,000.00) in the aggregate, including One Million Dollars ($1,000,000.00) for fire damage legal liability.
7.2 If Developer operates owned, hired or non-owned vehicles on the Parking Spaces, comprehensive automobile liability will be carried at a limit of liability not less than One Million Dollars ($1,000,000.00) combined bodily injury and property damage.
7.3 Developer shall obtain and shall maintain in force at all times during the duration and performance of this Lease, the policies of insurance specified in this section. Such insurance shall be issued by an insurance company with a rating of no less than “A” in the current A.M.
Best’s Insurance Guide. Each insurance policy shall name the City as an additional insured, and shall provide that a thirty (30) day notice of cancellation and of any material modification of coverage shall be given to all named insureds.
8. Security. Developer acknowledges that the City is not responsible for security of the Parking Spaces or Parking Lot. Developer Parties shall be responsible for locking and securing their vehicles in the Parking Spaces. The City shall not be responsible for loss, damage, or vandalism to any vehicle, or the loss of any items of personal property left within a vehicle, and Developer hereby waives on its behalf and on behalf of Developer Parties, any claims thereto.
9. Default by Developer. Without prejudice to its other remedies at law or in equity, the City may terminate this Lease, at any time and in its sole discretion, effective thirty (30) days after the City gives Developer written notice of termination, if any of the following circumstances occurs:
9.1 Developer breaches its obligation to pay Rent when due and does not cure the breach within ten (10) days after the City serves Developer with a written notice of breach;
9.2 Developer breaches its obligation to perform in accordance with any material provision of this Lease other than the obligation to pay Rent and does not cure the breach within thirty (30) days after the City serves it with a written notice of breach, unless the nature of the default is such that more than thirty (30) days is required to cure it and Developer comments to cure it within such thirty (30) -day period and thereafter diligently pursues the cure to completion within thirty (30) days thereafter;
9.3 Developer has an order for relief entered with respect to him, commences a voluntary case, or has an involuntary case filed against him under any applicable bankruptcy, insolvency, or other similar law then in effect; and the order or case is not stayed; withdrawn, or ATTACHMENT 2
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settled within sixty (60) days after it is entered, commenced, or filed (11 U.S.C. §. 365(e)(2)(A), as amended, or any successor statute);
9.4 Developer files for reorganization, becomes insolvent, or has a receiver or other officer with similar powers appointed for his affairs in any court with jurisdiction, whether or not with its consent (unless dismissed, bonded, or discharged within sixty (60) days after appointment);
9.5 Developer abandons and ceases to use the Parking Spaces for a period of thirty (30) consecutive days; or
9.6 Developer abandons or ceases to use Developer’s Property for the Project for a period of thirty (30) consecutive days.
10. Indemnification. Developer shall defend, pay, indemnify and hold harmless the City, its officers, directors, employees, agents, consultant, contractors, and invitees, from all claims, suits, actions, damages, demands, costs or expenses of any kind or nature by or in favor of anyone whomsoever and from and against any and all costs and expenses, including, without limitation, court costs and reasonable attorneys’ fees, resulting from or in connection with loss of life, bodily or personal injury or property damage arising directly or indirectly out of or from or on account of the entry, use or presence upon the Parking Spaces or Parking Lot by Developer Parties, except such loss or damage which was caused by the sole gross negligence or willful misconduct of the City.
11. Assignment and Sublease. Developer shall not voluntarily or by operation of law, mortgage, or encumber all or any part of Developer's interest in the Lease or in the Parking Spaces without the City’s prior written approval, which approval shall not be unreasonably withheld and shall be given provided that there is no material change to the City’s rights and/or obligations under the lease as a result of the mortgage. Developer shall not voluntarily or by operation of law assign, transfer, sublet, or otherwise transfer all or any part of Developer’s interest in the Lease or in the Parking Spaces without the City’s prior written consent, which shall not be unreasonably withheld provided that the transfer is in connection with and for the use of the Project. Any attempted assignment, transfer, mortgage, encumbrance, or subletting without such consent shall be void, and shall constitute a breach of this Lease and the City may terminate the Lease immediately without the need for notice to Developer.
12. Surrender of Parking Spaces. Upon termination of this Lease, Developer shall surrender and deliver the Parking Spaces and Parking Lot to the City in good condition and repair, wear and tear excepted.
13. Notices. Except as otherwise expressly provided by law, all notices or other communications required or permitted by this Lease or by law to be served on or given to either Party to this Lease by the other Party shall be in writing and shall be deemed served when personally delivered to the Party to whom they are directed, or in lieu of the personal service, upon deposit in the United States Mail, certified or registered mail, return receipt requested, postage prepaid. Notices delivered personally or by certified mail, return receipt requested, will be effective three (3) business days after placed in the mail or immediately upon receipt (or refusal of delivery or receipt); notices sent by independent messenger or courier service will be effective one (1) business day after acceptance by the independent service for delivery.
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City: City of Manteca
1001 West Center Street
Manteca, CA 95337
Attention: City Manager
Telephone: (209) 456-8000
Developer: Kevin Youkilis
130 N. Santa Cruz Avenue, Suite G
Los Gatos, California 95030
Telephone: (617) 529-0020
Either Party may change the address for the purpose of this section by giving written notice of the change to the other Party in the manner provided in this section.
14. Miscellaneous Provisions.
14.1 Waiver. Any express or implied waiver of a breach of any term of this Lease shall not constitute a waiver of any further breach of the same or other term of this Lease; and the acceptance of Rent shall not constitute a waiver of any breach of any term of this Lease, except as to the payment of Rent accepted.
14.2 Attorneys’ Fees. If any action at law or in equity is brought to recover any Rent or other sums under this Lease, or for or on account of any breach of or to enforce or interpret any of the covenants, terms, or conditions of this Lease, or for the recovery of the possession of the Parking Spaces, the prevailing Party shall be entitled to recover from the other Party as part of prevailing Party’s costs reasonable attorneys’ fees, the amount of which shall be fixed by the court and shall be made a part of any judgment rendered.
14.3 Partial Invalidity. If any provision of this Agreement is held invalid or unenforceable by any court of final jurisdiction, it is the intent of the Parties that all the other provisions of this Lease be construed to remain fully valid, enforceable and binding on the Parties.
14.4 Entire Agreement. This Lease constitutes the sole agreement between the City and Developer respecting the Parking Spaces. Any agreement or representations respecting the Parking Spaces or their leasing by the City to Developer not expressly set forth in this Lease are void.
14.5 Governing Law; Venue. This Lease shall be governed by and construed in accordance with California law. In any action or proceeding concerning this Lease, the Parties consent to the jurisdiction and venue of the Superior Court of the County of San Joaquin, State of California, or in the federal Eastern District of California.
14.6 Counterparts. This Lease may be executed in one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same Lease. (Signatures on Next Page)
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IN WITNESS WHEREOF, the Parties have executed this Lease as of the date first above written.
CITY:
City of Manteca,
a California municipal corporation
By: _____________________
Name: Toni Lundgren
Title: City Manager
ATTEST:
By: ________________
Cassandra Candini-Tilton, City Clerk
APPROVED AS TO FORM:
Kronick Moskovitz Tiedemann & Girard
a professional corporation
By: ___________
Amara Harrell
Developer:
Developer Services, Inc.,
a California corporation
By:
Name: Kevin Youkilis
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Exhibit A
(Legal Description of Developer Property)
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Exhibit B
(Depiction of Parking Lot)
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Exhibit C
(Depiction of Location for Truck Parking and Garbage Enclosure) ATTACHMENT 2