HomeMy WebLinkAboutFCEOC- SW Fresno General Neighborhood - DDA - 2004 Fidelity National Title Company
Escrow No. 241258-BW Illl��llll�llllllll�lll�llllll`�IIIIIIIIIIIIIIIII
RECORDED AT THE REQUEST OF FRESNO County Recorder I
AND WHEN RECORDED RETURN TO: Robert C, Werner
DOC— 2005-0037784
Redevelopment Agency Poet 4-Fldallty National Title company
of the Cite of Fresno Wsdn.aday, FES 16, 2003 14:39:49
2344 Tulare Street, Suite 200 Ttl Pd $0,00 Nbr-0001741418
Fresno CA 93721 GSF/R4/1-72
Attention: Executive Director
[SPACEMOVETHIS LINE FOR RECORDER'S LI E
This Agreement is recorded at the request and for the benefit of the Redevelopment
Agency of the City of Fresno and is exempt from the payment of a recording fee pursuant
to Government Code Section 6103.
REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO
By:
Its: administrator
Dated: Awow-
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
REDEVELOPMENT AGENCY
OF THE CITY OF FRESNO,
a Public Body, Corporate and Politic
and
FRESNO COUNTY ECONOMIC OPPORTUNITIES COMMISSION
SOUTHWEST FRESNO GENERAL NEIGHBORHOOD
RENEWAL PROJECT' PLAN AREA
TABLE OF CONTENTS
RECITALS: . . . . . . . . . . . . . . . . . . . . . Page. . . . . . . . . . . . . . . . . . . 1
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 "Agency., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 "Agreement" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.3 "City" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.4 "Closing""Close"or"Close of Escrow" . . . . . . . . .
1.5 "Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
11.6 "Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.7 "Developer' . . . . . . . . . . . . . . . . . . . . . . . . . I . .. . . . . . - . . 3
1.8 "Development Schedule" . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 3
1.9 "Effective Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.10 "Environmental Laws" . . . . . . . . . . . . . . . . 3
1.11 "Escrow" . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 4
1.12 "Escrow Holder" . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . 4
1.13 "Executive Director" . . . . . . . . . . . . . . . . . . .. . . . _ .. . . . . . . . . . . . . . . . . 4
-1.14 "Financing Plan" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.15 "Grant Deed" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - . - . . . . . . . - 4
1.16 "Hazardous Materials" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.17 "Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.18 "Material Change" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.19 "Outside Date" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.20 "Project" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . ., . . . . . . 5
1.21 "Property.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.22 "Release of Construction Covenants" . . . . . . . . . . . ... . . . . . , . . . . . . . - 5
1.23 "Security Financing Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Conditions precedent to Agency obligations , . . . . . , . . . . . , . . . . . 5
2.1 Financing Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.2 Credit Reports and Financial Statements . . . . . . . . . 6
2.3 CEQA Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3- Developer's predisposition activities and due diligence . . . ... . . . . . . . . . . . . . . 7
3.1.1 Contract with General Contractor . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.1.2 Contracts with subcontractors . . . . . . . . . . . . 7
3.1.3 Performance or Completion Bonds . . . . . . . . . . . . . . . . . . . . . 7
3.1.4 Receipts for Permits . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2 Due Diligence Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.2.1 Developer's investigation of Property . . . . . . . . . . . . . . . . 7
3.2.2 Access to Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.2.3 Environmental remediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4- Conveyance of the Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.1 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.2 Escrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.3 Conditions precedent to Closing Escrow . . . . . . . . . . . . . . . . . . . . . 9
4.3.1 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 9
d
4.3.2 Section 2 Conditions 9
4.3.3 Phase One Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.3.4 Notice of Accepting Property Condition . . . . . . . . . . . . . . . . . . . 9
4.3.5 Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.3.6 Condition of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.3.7 No Default 11
4.3.8 Execution of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.3.9 Payment of Closing costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.1.10 Design Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.1.11 Land Use Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.1.12 Insurance 11
4.1.13 Financing . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . 11
4.1.15 Recording this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.4 Escrow and Title Costs 11
4.5 Prorations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4,15 Form of Deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.7 Nonmerger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - - - , . 12
4.8 Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.9 Sale "AS IS"- no warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.9.1 Disclosure/Phase One Environmental Report - - - - - . . . . . . . 12
4.10 Close of Escrow . . . . . . . . . . . . . . . . . . . . . . . . . . I r . . . . . . . . . . . . . 13
4.11 Authority of Escrow Holder . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 13
4.11.1 Title policy premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.11.2 Payfees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.11.3 Record Grant Deed and disburse funds . . . . . . . . . . . . . . . . . 13
4.11.4 Actions to fulfill obligations . . . . . . . . . . . . . . . _ . . ... . . . . . . 13
4.11.5 FIRPTA, and more . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.11.6 Closing and other statements . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.11,7 Closing Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.12 Termination without Close . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.13 Executive Director's authority to sign instructions . . . . . . . . . . . . . . . . 14
4.14 Close of Escrow . . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5. Project Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.1 Private Development Project . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . 15
52 Developer responsible for all development related fees,
charges, and permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.3 Agency review of development related items . . . . . . . . . . . . . . . . . . . . 15
5.4 Approval of Material Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Is
5.5 City and other governmental approvals . . . . . . . . . . . . . . . . . . . . . . . . 16
56 Discretionary governmental actions . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
57 Time for completion of the project; costs . . . . . . . . . . . . . . . . . . . . . . 16
5 8 Extension of time for completion . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
5 9 Release of Construction Covenants . . . . . . . . . . . . . . . . _ . . . . 17
510 Conditions to issuing the Release of Construction Covenants 17
511 Liens and Stop Notices - . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
512 Defects in plans . . . . . . . . . . . . . . . . . . . . . _ . . . . . . . . . . . 18
3
.13 Utilities 18
—114 Hiring preferences to Project Area residents . . . .. . . . . . . . . . . . . . 18
5—115 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. .. . . . . . . 19
6. 1-idemnity; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 19
6.1 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.2 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.2.1 Commercial General Liability . . . . . . . . . . . . . . . . . . . . , . , - . 20
6.2.2 Commercial Automobile Liability . . . . . . . . . . . . . . . . - - - - - - 20
6.2.3 Workers' Compensation insurance . . . . . . . . . . . . . . . . . . . . . 20
6.2.4 Builders Risk insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.2.5 Insurance for design work . . . . . . . . . . . . . . . . . . . . . . — . - — 21
6.2.6 Performance and Payment Bonds . . . . . . . . . . . . . . . . . . . . 22
7. Security financing and rights of holders. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.1 Encumbrances only for development purposes . . . . . . . . . . . . . . . 22
7 2 Holder Not Obligated to Construct . . . . . . . . . . . . . . . I . . . . . . . . . . . 22
7.3 Notice of Default to Holder, and Right to Cure . . . - . . . . . . . . . , 22
7,4 Failure of holder to complete Project . . . . . . . . . . . . . . . . . . . . . . . 23
7.5 Right of Agency to cure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7.6 Right of Agency to satisfy other liens . . . . . . . . . . . . . . . . . . . . . . 23
7.7 Holder to be notified of provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8. Developer's continuing obligations. . . . . . . . . . . . . . . . . . . . . . . _ _ _ - - - 23
8.1 Environmental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - - 23
8..2 Disclosures after closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
83 Developer Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.4 Release of Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 25
8.5 Developer and assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.5.1 Prohibition against transfer of Property and
assignment of Agreement. . . . . . . . . . . . . . . . . . . . . 25
8.5.2 Permitted Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
8.5.3 Approval or consent of Agency . . . . . . . . . . . . . . . . . . . . . . 26
81; Insurance and indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.7 Taxes and assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . - - 27
&8 Compliance with laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.9 Indemnification for any failure to comply with laws . . . . . . . . . . . . . . . 27
8.10 Waiver under Civil Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8.11 Covenants . . . . . . . . . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . . . 28
812 Representations and Warranties of Developer . . . . . . . . . . . . . . . . . 28
9 Default, remedies and termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.1 Legal actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.2 Rights and remedies are cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . 29
9.3 Notice and cure periods . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.4 Right to terminate agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
9.4.1 Developer's right to terminate . . . . . . . . 30
9.4.2 Agency's right to terminate . . . . . . . . . . . . . — . . . . . . . . . . . . 30
9.5 Power of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.6 Effect on security holders . . . — . . . . . . . . . . . . . 31
9.7 Recognition of Agency right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.8 Resale of the Property . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . 31
9.9 No speculation in land . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10. General provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.1 Notice, demands and communication . . . . . . - - . . . . . . . . . . . . . . . . . . 32
10.2 Force majeure; unavoidable delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.3 Conflict of interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.4 Nonliability of officials, employees and agents . . . . . . . . . . . . . . . . . . . 34
10.5 Executive Director Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.7 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 34
10.8 Attomeys'fees 34
10.9 Governing law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.10 Further assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.11 Entire understanding of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.12 Consent, reasonableness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
101.13 Partial invalidity . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 35
10.14 Ambiguity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . .. . . . . . . . 35
10.15 Number and gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
10.16 Headings . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . 35
10.17 Binding upon successors . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 35
10.18 Relationship of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . . 36
10.19 Nature of the project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
10.20 Time of essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
1021 Survival of indemnification provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 36
1022 Amendments or modifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
DISPOSITION AND DEVELOPMENT AGREEMENT
This Disposition and Development Agreement ("DDA" or"Agreement") is entered
as the Effective Date(defined below), between the REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO, a public body corporate and politic(The"Agency"), and the FRESNO
COUNTY ECONOMIC OPPORTUNITIES COMMISSION, a nonprofit public benefit
corporation (the "Developer").
RECITALS:
The parties enter this Agreement based on the following facts,understandings,and
intentions:
A. P,.jrsuant to authority granted under the Community Redevelopment Law of
California (Health & Safety Code Sections 33000 et. seq.) (the"Law"), the Agency
has the responsibility to implement the Urban Renewal Plan for the Southwest
Fresno General Neighborhood Renewal Area Project Urban Renewal Plan,adopted
by Ordinance No. 69-13, on January 14, 1969, and all amendments to the
Redevelopment Plan (collectively the "Redevelopment Plan").
B. The Redevelopment Plan is recorded in the official Records of Fresno County and
affects and controls real property development and use within that area of the City
of Fresno, California, described in the Redevelopment Plan(the"Project Area").
C. The Agency owns certain vacant real properties in the Project Area near California
Avenue and "C" Street, more particularly described in Exhibit "A," attached
(collectively, the "Property").
D. Developer is a community action agency in Fresno County that annually provides a
wide array of human services for more than 175,000 disadvantaged youth and
adults.
E. The Developer proposes to purchase the Property and develop it privately with a
neighborhood youth, community, health, and child care center, off-street parking,
and outdoor recreational areas, all as more particularly described in the Scope of
Development, attached as Exhibit"B" (the "Project"),
F. The Project will include space for Developer's Local Conservation Corps(the"LCC").
The LGC recruits at-risk youth, ages 18-26. who receive classroom and complex,
hands-on training in production-driven projects, including construction, grounds
maintenance and recycling. These projects develop character, work ethics,
discipline, cooperation and respect for others.
May 26, 2004 A
G.. The Project will permit the Developer to expand service delivery to severely at risk
children, youth and families in the area.
H. April 5, 2004, the Edison/Merger II Project Area Citizens Planning Advisory
Committee reviewed the Project and this Agreement and recommended that the
Agency Board and the Council of the City of Fresno (the "Council") approve the
Agreement.
I. July 14,2004,the Housing and Community Development Commission reviewed the
Project and this Agreement, and recommended that the Agency Board and Council
approve it.
J. The Project and this Agreement have been environmentally assessed under
Environmental Assessment Application No. C-03-253, resulting in a Finding of
Conformity and determination that the project,as proposed,and the DDA,are within
the scope of Master Environmental Impact Report No. 10130 for the 2025 Fresno
General Plan, all in compliance with the California Environmental Quality Act
(California Public Resources Code Sections 22000 of seq.)("CEQA")and Guidelines.
The Board and the Council adopted any requisite findings at the following public
hearing.
K. July 27, 2004, the Council of the City of Fresno (the "COLIncil") and the
Redevelopment Agency Board (the "Board"), considered the Project and this
Agreement at a noticed joint public hearing, after making the Section 33433 report
available for public review, as required by Law.
L. This Agreement is in the best interests of, and will materially contribute to,
Redevelopment Plan implementation. Further, the Project does the fallowing. (a)
will have a positive influence in the Project Area, and surrounding environs, (b)is in
the vital and best interests of the Agency,the City of Fresno("City"),and the health,
safety. and welfare of City and Project Area residents, (c)complies with applicable
federal, state, and local Jaws and requirements, and(d)will help eliminate blight by
putting underutilized land to economically viable use, alleviating depreciated and
stagnant property values and impaired investments, and reducing the number of
excessive vacant lots in an area developed for urban use. Council has determined
that the consideration that the Developer is providing to the Agency for the Property
meets the requirements of Health and Safety Code Section 33433.
AGREEMENT
1. DEFINITIONS. Besides definitions contained elsewhere in this Agreement, the
fallowing definitions will govern the construction, meaning, application and
interpretation of the defined terms, as used in this Agreement.
2 May 26, 2004 v6
1.1 "Agency"means the Redevelopment Agency of the City of Fresno, a public
body, corporate and politic, organized and existing under the Law, and any
assignee of or successor to its rights, powers and responsibilities.
1.2 "Agreement"means this Disposition and Development Agreement between
the Agency and the Developer_
1.3 "City" means the City of Fresno, a municipal corporation, having its offices
at 2600 Fresno Street, Fresno,California 93721-3605,and operating through
its Council and its various departments. The City is an entity distinct and
separate from the Agency and is not a party to this Agreement and will have
no rights or obligations hereunder.
1.4 "Closing""Close"or"Close of Escrow" means the closing of the escrow
in which the Agency conveys the Property to the Developer, as evidenced by
a recorded Grant Deed.
1.5 "Day," whether or not capitalized, means a calender day, unless otherwise
stated.
1.13 "Default" means a party's failure timely to perform any action or covenant
required by this Agreement following notice and opportunity to cure.
1.7 "Developer" means the Fresno County Economic Opportunities
Commission, a California nonprofit public benefit corporation.
13 "Development Schedule" means the schedule attached as Exhibit "C,"
setting forth the dates and times by which the parties must accomplish certain
obligations under this Agreement. The parties may revise the Schedule from
time to time on mutual written agreement of the Developer and the Executive
Director, but any delay or extension cf the completion date is subject to the
requirements in this Agreement.
IA "Effective Date"means the date that the Agency signs this Agreement,after
the Developer signs it, and the Council and Board approve it by resolution,
following a joint public hearing.
1.10 "Environmental laws" means any federal, state, or local law, statute,
ordinance or regulation concerning environmental regulation, contamination
or cleanup of any Hazardous Materials or Waste including,without limitation,
any state or federal lien or"superlien"law,any environmental cleanup statute
or regulation,or any governmentally required permit,approval,authorization,
license, variance or permission.
May 26, 2004 A
q
1.11 "Escrow" means the escrow opened with Escrow Agent for the Agency to
convey the Property to Developer.
1.12 "Escrow Holder" means Fidelity National Title Company, 1680 West Shaw
Avenue, Suite 101, Fresno, CA 93711, or another title company mutually
satisfactory to bath parties.
1.13 "Executive Director" means the Executive Director of the Agency.
1.14 "Financing Plan"means evidence,satisfactoryto the Executive Directorand
Agency that the Developer has or will have funding sufficient to timely
complete the Project within the times set forth in the Development Schedule,
attached. Such evidence may include, without limitation, (a) a binding
contractual loan commitment that Developer has accepted in writing,from a
qualified commercial lender for construction and permanent (take-out)
financing,with conditions acceptable to the Executive Director,(b)executed
grant agreements with funding sources, such as Developer's $1,572,000
grant under the Murray-Hayden Urban Parks and Youth Service Program,
with conditions acceptable to the Executive Director, (c)any combination of
executed grant, pledged contributions, or other committed funding that will
provide sufficient funds,when combined with any Developer cash financing,
for Developer to timely complete the Project, (d) a pro forma construction
budget, (e) evidence of funding availability satisfactory to the Executive
Director and Agency, and (f) any other financial data requested by the
Executive Director or Agency.
1.15 "Grant Deed" means the grant deed, substantially in the form of Exhibit D,
by which the Agency conveys the Property to the Developer. The Grant Deed
will contain all conditions, covenants, and restrictions required by the Law,
other applicable laws and regulations, the Redevelopment Plan, and this
Agreement.
1.16 "Hazardous Materials"means any substance, material, or waste,which is
or becomes regulated by any local governmental authority, the State of
California,or the United States Government including,without limitation,any
material or substance, which is: (a) defined as a "hazardous waste,"
"extremely hazardous waste,"or"restricted hazardous waste"under Sections
25115. 25117, or 25122.7, or listed pursuant to Section 25140 of the
California Health and Safety Code, (b)defined as a "hazardous substance"
under Section 25316 of the California Health and Safety Code,(c)defined as
a"hazardous material,""hazardous substance,"or"hazardous waste"under
Section 25501 of the California Health and Safety Code, (d) defined as a
"hazardous substance" under Section 25281 of the California Health and
Safety Code, (e) petroleum, (f) friable asbestos, (g) polychlorinated
byphenyls, (h)listed under Article 9 or defined as"hazardous"or"extremely
4 May 26, 2004 v6
hazardous" under Article 11 of Title 22, California Administrative Code, (1)
designated as"hazardous substances"pursuant to Section 311 of the Clean
Water Act(33 U.S.C. §1317).(J)defined as a"hazardous waste"pursuant to
Section 1004 of the Resource Conservation and Recovery Act (42 U.S.C.
§6901 et seq.,or N defined as"hazardous substances"pursuant to Section
of the Comprehensive Environmental Response,Compensation,and Liability
Act(42 U.S.C. §9601, of seq.)
1.17 "Law" means the Community Redevelopment Law of the State (California
Health and Safety Code Sections 33000 et seq.).
1.18 "Material Change" means a change, modification, revision or alteration to
the basic design,the design development drawings,the Financing Plan,or to
other documents or plans that substantially deviates from those previously
approved by the Agency.
1.19 "Outside Date"means September 3,2004,the last date on which the parties
are willing to Close the Escrow.
1.20 "Project"means the buildings and other improvements that Developer is to
complete on the Property, and any off-site improvements, all as more
particularly described in Exhibit B.the Scope of Development, and shown in
Exhibit B-1, the Site Plans.
1.21 "Property" means the real property described in Exhibit A.
1.:22 "Release of Construction Covenants"means a document,substantially in
the form of Exhibit E,attached,which evidences the Developer's satisfactory
development of the Project.
1-23 "Security Financing Interest" means a security interest, which Developer
grants in the Property, before the Agency issues and records a Release of
Construction Covenants, to secure a debt, the proceeds of which the
Developer uses to construct the Project. The term may include, without
limitation, a mortgage,deed of trust,or any other reasonable security interest
securing a debt that the Agency approved as part of Developer's Financing
Plan.
2. Conditions precedent to Agency obligations. The following are conditions
precedent to the effectiveness of this Agreement against the Agency. Until the
conditions are satisfied, the Agency is not obligated to take any action under this
Agreement. These conditions must be satisfied by the time stated or, if no time is
st,3ted,then within 45 days after the Effective Date of this Agreement. The Agency,
S May 26, 2004 v6
in writing, may waive any condition or agree to extend the time for satisfaction. It
may terminate this Agreement as provided herein for the failure of a condition.
2.1 Financing Plan. Developer's Estimated Sources and Uses of Funds
(Budget)are attached as Exhibit F. Within 30 days after the Effective Date,
Developer will submit its Financing Plan to the Agency for review and
approval. Within 15 business days after receiving the Financing Plan, the
Agency,through its Executive Director,will review the plan and approve it or
disapprove it. If the Agency disapproves the plan,it will specify the reason for
disapproval and ask Developer to provide any additional information the
Agency may need to approve the plan.
Any conditions to the loan commitments or grant or funding agreements must
be acceptable to the Agency. Any lenders and entities or agencies providing
funds or grants, and the Developer must have signed the commitments,and
the commitments must evidence Developer's payment of any commitment
fees. The collective funding in immediately available funds irrevocably
committed to the Project, must be sufficient to cover the Developer's
construction costs, as shown in the approved Financing Plan. Any grant
conditions that will or may require recording any instrument, covenant, or
condition against the Property must be acceptable to the Agency, and shall
be subordinate and subordinated to the recording of the Grant Deed and this
Agreement.
The Agency will review Developer's Financing Plan for Developer's ability to
complete the Project, and to use and maintain the Project as this Agreement
requires. After the Agency approves the Financing Plan, Developer will not
make any Material Change in the Financing Plan without first submitting the
change to the Executive Director for review and approval.
2.2 Credit Reports and Financial Statements. Developer will provide credit
reports,evidence of grant or other funding,financial staternents,and financial
data, satisfactory to the Executive Director,evidencing Developer's financial
ability to finance and complete the Project.
2.3 CEQA Review. Developer, at its costs, has or will prepare a project
application and submit the Project including, without limitation, the primary
terms of this Agreement, to the Cit_y's Development Department for review
and preparation of an environmental assessment that meets CEQA and any
NEPA (if Developer funding includes federal funds) requirements. The
Agency will cooperate and make its staff available for any assistance it may
provide in completing CEQA review.
May 26,2004 v6
II
3. Developer's predisposition activities and due diligence. Before the Agency
conveys the Property to Developer, and as conditions precedent to the Agency's
conveyance the Developer will do the following:
31 Within 60 days after the Effective Date, the Developer will submit to the
Agency the following documents,each in form and substance satisfactory to
the Executive Director:
3.1.1 Contract with General Contractor. A copy of a signed contract
between the Developer and a general contractor for constructing the
Project, (the "General Contractor"), with written evidence that the
General Contractor is a general contractor, licensed under California
law to perform all its duties under the contract. The contract may be
conditioned on the Agency's conveyance of the Property to Developer.
3.1.2 Contracts with subcontractors. Copies of signed contracts with
each other contractor or subcontractor that the Developer expects to
employ in completing the Project,whether between the subcontractor
and the Developer, or the subcontractor and the General Contractor.
Such submittals will not prevent the Developer or the General
Contractor from subsequently entering additional contracts or
subcontracts as necessary to complete the Project, provided the
Developer promptly submits signed copies of the additional contracts
and subcontracts to the Agency.
3.1.3 Performance or Completion Bonds. Copies of the performance or
completion bonds for the General Contractor and each contractor and
subcontractor referenced above. Each bond will be in a penal sum of
at least 100 percent of the applicable contract or subcontract price.
3.1.4 Receipts for Permits. Copies of receipts showing that the Developer
has paid for and pulled all necessary construction permits from the
City's Planning and Development Department.
3.2 Due Diligence Inspection.Because the Agency will convey the Property to
Developer"AS IS," with all faults, Developer will complete its due diligence
inspection of the Property within 30 days after the Effective Date,and before
the Agency conveys the Property to Developer.
3,2.1 Developer's investigation of the Property. The Developer shall be
solely responsible, at its expense, to investigate and determine the
condition of the Property and its suitability for the Project. Developer's
responsibility includes, without limitation, reviewing or determining to
its satisfaction, all zoning regulations, other governmental
7 May 26, 2004 v6
requirements, all soil, seismic and other surface and subsurface
conditions of the Property, and its suitability for the Project. Unless
otherwise expressly provided In this Agreement or a separate
amendment or agreement, Developer shall be solely responsible, at
the Developer's expense, for putting the Property in a condition
suitable for developing the Project.
The Developer, at its sole cost and expense, may engage an
environmental and any other consultant to investigate the Property as
Developer deems necessary including,without limitation,"Phase One"
or"Phase Two"environmental investigations. The Developer will be
solely responsible,at its expense,to investigate and determine all soil,
seismic,and other surface and subsurface conditions of the Property.
Developer's responsibility and due diligence includes, without
limitation, determining the presence of Hazardous Materials.
Developer will promptly give the Agency a copy of all reports and test
results. Developer will indemnify, defend,and hold Agency harmless
from any damages or claims arising out of Developer's inspections and
tests.
3.2.2 Access to Property. Agency will grant Developer access to the
Property during reasonable daylight hours. Developer will give the
Agency 24 hours' written notice of its intention to enter the Property.
3.2.3 Environmental remediation. Should Developer's inspection reveal
any Hazardous Materials or environmental conditions requiring
remediation, the Developer will promptly notify the Agency. The
parties will have 30 days after that to agree on the allocation of any
remediation costs. If the parties cannot agree within the 30 days.
either party may terminate this Agreement by 30 days' notice to the
other. Any remediation will be pursuant to a remedial action plan, if
needed, approved by the governmental agencies having jurisdiction.
The work will be performed according to applicable Environmental
Laws and any governmental requirements.
4. Conveyance of the Property. The Agency will convey the Property to Developer
for the purchase price and on the conditions set forth herein.
4.1 Purchase Price. Developer will purchase the Property from the Agency,for
$159,400.00. The purchase price is not less than the fair market value of the
Property, at the highest and best uses permitted under the Redevelopment
Plan, as evidenced by an independent appraisal. Within 30 days after the
Effective Date hereof, the Developer shall pay the purchase price in
immediately available funds,by depositing the purchase price with the Escrow
Holder.
8 May 26, 2004 A
4.2 Escrow. Within 15 days after the Effective Date of this Agreement, the
Agency and Developer will open the Escrow with the Escrow Agent, and
deposit a signed cagy of this Agreement as their initial joint escrow
instructions. The Agency and the Developer will sign any supplemental
escrow instructions, consistent with this Agreement, that the Escrow Agent
deems necessary or appropriate. This Agreement will control any
inconsistency that may exist between this Agreement and the supplemental
escrow instructions. The parties authorize the Escrow Agent to act under the
escrow instructions and,after the Escrow Agency accepts the instructions in
writing, it will carry out its duties as Escrow Agent under this Agreement.
4.3 Conditions precedent to Closing Escrow. The following are conditions
precedent to the Agency's obligations to close the Escrow and convey the
Property to the Developer. These conditions must be satisfied by the time
stated or, if no time is stated, then by the Outside Date set for the Closing.
The Agency, in writing, may waive any condition or agree to extend the time
for satisfactions. It may terminate the Escrow and this Agreement as provided
herein for the failure of a condition.
4.3.1 insurance. Developer has delivered to the Agency, and the City's
Risk Management has approved the form and content of, certificates
of insurance for all insurance and performance bonds that this
Agreement requires Developer to obtain and maintain.
4.3.2 Section 2 Conditions. Developer has satisfied the conditions
precedent set forth in Section 2.
4.3.3 Phase One Report. The completion of a Phase One environmental
assessment on the Property.
4.3.4 Notice of Accepting Property Condition. Developer has givers
written notice to the Agency that it has inspected the Property and
accepts the Property in AS iS condition, If the Developer, after its
inspection of the Property and review of any environmental reports,
disapproves the Property's environmental or other condition, and the
Agency is either unwilling or unable to cure the condition to which the
Developer objects, then the Developer or the Agency may terminate
this Agreement by written notice to the other party.
4.3.5 Funding. If the approved Financing Plan includes a construction loan,
the construction lender will have opened an escrow for the
construction loan and directed that the loan close concurrently with the
Closing of the Escrow. if the approved Financing Plan includes grants,
9 May 26,2004 A
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Developer shall have signed any grant agreement and,at conveyance
shall be in compliance with the grant. No covenants or conditions that
a grant may require to be recorded against the Property shall be
recorded unless acceptable to the Agency, In all events, any
recordable loan and grant documents shall be subordinate to the
Agency's recorded Grant Deed and this Agreement or memorandum
of it. The Developer and any lender/grant provider will have signed the
respective loan documents,and/or grant agreements. The documents
will include,without limitation and as applicable, any loan agreement,
any promissory note, any trust deed, any grant agreement, any
recordable Covenants, conditions, or restrictions, and any other
security instruments, and written proof that the Developer has the
funding or financing to fully fund the Project upon Closing.
4.3.6 Condition of Title. The Agency will convey the Property to Developer
free of all monetary liens, and rights to occupy or possess the surface
thereof, and real property taxes and assessments not yet due.
Conveyance will be subject to those matters listed below. Developer
may not object to the listed matters or to any similar matters that are
of public record.
Conveyance shall be subject to the limitations and covenants
contained in the Grant Deed. The Agency will obtain and give the
Developer a preliminary title report. Developer will have 15 days
following receipt of the title report to notify the Agency whether it
approves the condition of title. Developer's Failure to give the Agency
notice within the 15 days will be deemed approval of title. Developer
may not object, however, to the following title exceptions, if any:
4.3.6.1 The Redevelopment Plan.
4.3.6.2 Utility easements.
4.3.6.3 Street or highway rights, rights of way, and rights of ingress
and egress to and from portions of the Property.
4.3.6.4 Alleyways,excepting any that the City of Fresno may vacate
through discretionary action.
4.3.6.5 Record of Survey recorded October 20, 1978.
4.3.6.6 Canal easements.
If Developer notifies Agency that it disapproves any other title
exception, the Agency may, but is not obligated to, remove that title
10 May 26,2004 v6
r
exception within 60 business days after receiving Developer's written
notice. Instead,the Agency may give the Developer other assurances
that the title exception will be removed on or before the Closing. If the
Agency cannot or does not elect to remove any disapproved title
exception within that period, Developer will have ten business days
after the expiration of the 60 business days to either give the Agency
written notice that Developer elects to purchase the Property subject
to the disapproved title exceptions or to terminate this Agreement.
4.3.7 No Default. Developer is not in default of this Agreement and all
representations and warranties of Developer contained herein are true
and correct in all material respects.
4.3.8 Execution of documents. The Developer and Agency will have
signed the Grant Deed and executed any other documents required
hereunder and delivered such documents into Escrow.
4.3.9 Payment of Closing costs. Before the Close of Escrow, the Agency
and the Developer have each deposited its share of all Escrow, title,
and Closing costs into the Escrow.
4.1.10 Design Approvals. The Developer will have obtained the Agency's
approval of the design development drawings.
4.1.11 Land Use Approvals. The Developer will have received all land use
approvals and permits required by this Agreement.
4.1.12 Insurance. The Developer will have provided proof of insurance as
required by this Agreement.
4.1.13 Financing. The Agency will have approved Developer's Financing
Plan.
4.1.15 Recording this Agreement. Escrow Holder is prepared to record this
Agreement or, at the Agency's sole option, to record a memorandum
of it at the Closing.
4A Escrow and Title Costs. The Agency will pay the escrow fees, recording
fees, and documentary stamp taxes, if any, to convey the Property to
Developer. The Agency will pay the premium for a CI-TA owner's policy of
title insurance, insuring the title to the Property as described herein. The
Agency or the Developer shall pay any other costs associated with the
Escrow according to the custom and practice in Fresno County.
1 1 May 26,2004 v6
4.5 Prorations. The Escrow Agent will prorate all ad valorem taxes and
assessments, if any, as of Closing, between the Agency and the Developer.
If the then-current taxes and assessments are not ascertainable,the Escrow
Agent will apportion the taxes and assessments based on the most recent
statement of taxes and assessments. Escrow Agent will adjust the proration,
if necessary, within 30 days after the actual taxes and assessments are
available. Developer will be solely responsible for ad valorem taxes or
assessments on the Property, or any taxes on this Agreement or any rights
hereunder,which may be levied,assessed or imposed for any period after the
Closing.
4.6 Form of Deed. The Agency will convey the Property to the Developer by a
Grant Deed,substantially in the form attached as Exhibit D. The conveyance
and Developer's title will be subject to the Redevelopment Plan and to all
conditions, covenants, restrictions and requirements set forth in this
Agreement and the Grant Deed.
4.7 Nonmerger. The provisions of this Agreement will not merge with the Grant
Deed. The Grant Deed will not affect, impair or limit the provisions,
covenants, conditions or agreements of this Agreement.
4.8 Possession. The Agency will deliver possession of the Property to
Developer at or immediately following the Closing.
4.9 Sale"AS IS"-no warranties. Excepting the following disclosures,if any,the
Agency will convey the Property "AS IS," with all faults. The "AS IS"
conditions include, without limitation, the conditions disclosed in any toxics
reports delivered to Developer, any conditions disclosed in the files of the
regulators such as,but not limited to,the Fresno County Health Department,
and the Regional Water Quality Control Board, any environmental or other
physical conditions on or under the Property, buried debris or structures,and
soil compaction, presence of Hazardous Materials or the condition of the soil,
its geology, the presence of known or unknown seismic faults, and the
suitability of the Property for the development purposes intended hereunder.
4.9.1 Disclosure/Phase One Environmental Report. The Agency has
obtained or will obtain a Phase One environmental assessment on the
Property("toxics report"),and will deliver a copy to Developer promptly
following receipt. If the Phase One toxics report suggests further
environmental assessment is necessary the Agency,at its option,may
conduct a Phase Two environmental assessment on the Property.
Promptly after receiving the report, the Agency shall deliver a copy to
Developer. If the Phase Two toxics report recommends any
remediation work the Agency, at its option, may complete the work or
12 May 26, 2004 v6
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may cancel this Agreement upon written notice to Developer and the
Escrow Holder. Developer shall in any event notify Agency in writing
within the later to occur of (i) 15 days after receipt of each toxics
report, or (ii) 30 days before the date set for Closing, whether the
environmental condition of the Property is acceptable or unacceptable.
Unless the Developer delivers written notice of nonacceptance,setting
forth the reasons therefore,to the Agency within that time, the toxics
reports will be deemed approved. Neither the Agency nor the
Developer has actual knowledge of, and has not received any notice
or communication from, any environmental agency having jurisdiction
over the Property of, the presence of Hazardous Materials in, on, or
under the Property, or any portion of it. "Actual knowledge,"as used
this subparagraph, will not impose a duty of investigation, and will be
limited to the actual knowledge of the employees and agents of the
Agency and Developer who have directly participated in the
preparation of this Agreement.
4.10 Close of Escrow. The Escrow will close within 30 days after the parties'
satisfy all the conditions precedent to Closing as set forth in this Agreement,
but not later than the "Outside Date," unless the parties mutually agree to
extend the time for Closing.
4.11 Authority of Escrow Holder. The parties authorize the Escrow Holder to,
and the Escrow Holder will do the following:
4,11.1 Title policy premium. Pay and charge the Agency for the
premium of a CLTA owner's title policy, giving the Developer
title coverage to the extent of the purchase price.
4.11.2 Pay fees. Pay and charge the Agency the escrow fees and
closing costs, excluding any costs to correct title exceptions or
cure property conditions. The Agency and Developer, in a
separate writing or instructions to the Escrow Holder, shall
agree on the allocation of the costs to cure title exceptions or
property conditions.
4.11.3 Record Grant Deed and disburse funds. Disburse funds,and
record and deliver the Grant Deed when the conditions
precedent to Closing are satisfied or waived.
4,11.4 Actions to fulfill obligations. Take any other actions
necessary to fulfill its obligations under this Agreement.
May 26,2004 v6
t6
4.11.5 FIRPTA, and more. Direct the parties to deliver any
instrument, or to perform any act, necessary to comply with
FIRPTA or any similar state act and regulation promulgated
thereunder. Agency will sign a Certificate of Non-forelgn
Status, or a Certification of Compliance with Real Estate
Reporting Requirement of the 1986 Tax Reform Act as the
Escrow Holder may require.
4.11.6 Closing and other statements. Prepare and file with all
appropriate governmental or taxing authorities a uniform
settlement statement,closing statement,tax withholding forms
including, without limitation, an IRS 1099-S form, and be
responsible for withholding taxes, if the law so requires.
4.11.7 Closing Statements. Escrow Holder will forward to both
Developer and Agency a separate accounting of all funds
received and disbursed for each party,and copies of all signed
and recorded documents deposited into Escrow, with the
recording and filing date and information endorsed thereon,
4.12 Termination without Close. If the Escrow is not in condition to close by the
Outside Date, then any party that is not in default of this Agreement, may
demand the return of money or property and terminate this Agreement and
the Escrow. If either party makes a written demand for return of documents
or properties, this Agreement will not terminate until five days after Escrow
Holder has delivered copies of the demand to the other party at the respective
addresses shown in this Agreement. If the other party objects within the five-
day period, the parties authorize the Escrow Holder to hold all papers and
documents until instructed by a court of competent jurisdiction or by mutual
written instructions of the parties. Termination of this Agreement will be
without prejudice to whatever legal rights either party may have against the
other arising from this Agreement. If no party demands that the Escrow
terminate, the Escrow Holder will proceed to Closing as soon as possible.
4.13 Executive Director's authority to sign instructions. The Executive
Director is authorized to execute any supplemental escrow instructions forthe
Agency that are consistent with the terms of this Agreement. The Executive
Director may make minor modifications to this Agreement, or to the
documents referenced herein, to effect the opening and Closing of the
Escrow.
4.14 Close of Escrow. The purchase and sale of the Property shall be completed
and the Closing shall occur when the Escrow is in a condition to Close, but
not later than the Outside Date set for Close. If the Escrow is not in a
condition to Close within the stated time because a party has defaulted in the
14 May 26,2004 v6
performance of a term or condition of this Agreement,or because without the
fault of either party a condition precedent to the conveyance of the Property
has not been satisfied or waived,a party who is not in default may cancel the
Escrow by giving the Escrow Holder and the other party a written notice that
the party is exercising its right to cancel the Escrow,
5. Project Construction.
5.1 Private Development Project, The Developer will complete the Project
described in the Scope of Development. Developer shall diligently pursue
completion of the Project according to the Development Schedule, the
Agency-approved final construction plans,all permits and approvals approved
or issued by the City, subject to any approved modifications. Developer shall
not begin construction or perform any other work on the Property, until after
the Closing, unless otherwise agreed in a recordable license or other
recordable agreement between the Agency and Developer.
5.2 Developer responsible for all development related fees, charges, and
permits. Developer will pay all permit and permit processing costs, all fees
and charges relating to the Project, and the costs to construct any Project
specific offsite improvements or improvements that the City may require to
approve Project development.
5.3 Agency review of development related items. Solely to assure the Agency
that the Project will further the redevelopment goals, requirements, and
expectations of the Redevelopment Plan, the Law, and this Agreement, the
Developer will submit certain development related items to the Agency for
review and written approval. These development-related items include,
without limitation,building permits,conditional use permits,site plans,building
plans, basic concept drawings, elevation and other drawings showing
architectural style, design and features, landscaping plans (prepared by a
professional landscape architect), and Finish grading plans (prepared by a
licensed civil engineer).
The Executive Director or his designee shall conduct Agency review and
approval. Agency review will be in addition to review by any other
governmental agency(e.g.. the City)of Project-related matters, required by
any law,code,regulation,or rule. Agency shall not require Developer to take
any action or inaction that conflicts with City requirements.
5.4 Approval of Material Changes. On matters,which the Agency has already
approved,the Developer shall submit any Material Change to the Agency for
further written approval.
May 26,2004 v6
5.5 City and other governmental approvals. Developer shall apply for, and
diligently pursue until obtained, any City or other governmental permits or
approvals necessary to complete the Project. The Council or Agency Board
approval, and the Agency's execution, of this Agreement does not limit the
City's discretion in the permit and approval process necessary to complete
the Project. Discretionary approvals include, without limitation, the City's
review and approval of final construction plans and specifications. The
Agency shall use best efforts to help Developer obtain any necessary City
and other discretionary governmental permits or approvals.
The foregoing includes,without limitation,any application to and costs relating
to any City vacation of"C"Street and the"C"Street/Freeway 99 Alley rights-
of-way between California Avenue and San Benito Street.
5.6 Discretionary governmental actions. Certain planning, land use, zoning
and other permits and public actions required for the Project are discretionary
governmental actions. These include, without limitation, the approval of this
Agreement,conveyance of the Property,and other transactions contemplated
by this Agreement. Nothing in this Agreement obligates the Agency,the City,
or any other governmental entity to grant final approval of any matter
described herein.
Such actions are legislative, quasi-judicial, or otherwise discretionary in
nature. Neither the Agency nor the City can act on such matters before the
Project has been environmentally assessed under CEQA (and/or NEPA if
Developer will be using federal funds on the Project). The Agency and the
City cannot and do not commit to approve any matter. Neither the Agency
nor the City shall be liable, in law or equity, to the Developer or any of its
executors, administrators, transferees, successors-in-interest or assigns for
any failure of any governmental entity to grant approval on any matter subject
to discretionary approval.
5.7 Time for completion of the Project. The Agency will convey the Property
to the Developer for redevelopment purposes pursuant to the Redevelopment
Plan and the Law, and not for speculation in real estate. Therefore, the
Developer will begin construction by the date provided in the Development
Schedule,and will diligently complete the Project according to the Schedule,
or by any other date as the parties may agree in a written extension signed
by the parties.
53 Extension of time for completion. The Agency may extend the completion
date in writing for a period reasonably necessary to overcome any delay, to
the extent the delay is due to a cause that is beyond the Developer's control
and could not,with reasonable diligence,have been foreseen and avoided by
the Developer. Such causes include, for example, acts of God; unusually
16 May 26, 2004 v6
severe weather or flood; war, riot or act of the public enemy; labor dispute;
unavoidable inability to secure labor, materials, supplies, tools or
transportation; or acts or omissions of any governmental authority having
jurisdiction (other than acts of the City or the Agency permitted by or
contemplated by this Agreement). Developer's lack of funds or the
Developer's inability to obtain financing for construction of the Project shall
not be construed as unforeseen or unavoidable, As a condition precedent to
any extension, the Developer shall give the Agency notice of any delay-
causing event within 10 days after its onset, stating the cause of the delay
and the extension Developer reasonably expects is needed, and asking the
Agency to approve an extension. It the Agency approves an extension, it
shall be noted in writing as modifying this Agreement and the Development
Schedule. Obtaining an extension shall be the Developer's sole means of
avoiding potential breach of the construction covenants herein when a
delaying event occurs.
5.9 Release of Construction Covenants. After Developer has satisfactorily
completed the Project according to the construction covenants in this
Agreement (including the required beginning and completion dates),
Developer may ask the Agency to record a release from those covenants.
Subject to the satisfaction of the conditions to its issuance (see next
subsection), the Agency will provide an instrument certifying Developer's
completion by preparing and recording a Release of Construction Covenants,
substantially in the form attached as Exhibit "E." This release, when
recorded,will evidence the Agency's conclusive determination that Developer
has satisfied the construction covenants in this Agreement. The release will
not be evidence that Developer has complied with or satisfied any obligation
to any person holding a deed of trust or Security Financing Interest. The
release shall not terminate Developer's indemnification or other obligations.
which by their nature are intended to survive Project completion.
After the release is recorded in the Official Records of Fresno County, any
party then owning or after that purchasing,leasing,or otherwise acquiring any
interest in the Property shall not (because of such ownership, purchase,
lease, or acquisition) incur any obligation or liability under this Agreement
regarding the construction requirements or Project development.
5.10 Conditions to issuing the Release of Construction Covenants. The
following are conditions precedent to the Agency issuing the Release of
Construction Covenants,and each submission will be in form and substance
satisfactory to the Executive Director:
5.10.1 Evidence that all mechanics' liens or material men's liens
recorded against the Property and Project improvements have
17 May 26. 2004 v6
been released or,if not released,sufficiently bonded against as
required by law.
5.10.2 Evidence that the aggregate liens against the Property do not
exceed the permitted Security Financing Interests approved in
the Financing Plan.
5.11 Liens and Stop Notices. The Developer will not permit any lien or stop
notice to be filed against the Property. If a claim of lien or stop notice is
recorded against the Property or any Project improvements, the Developer,
within 30 days after that, or within five days after the Agency's demand
whichever first occurs, will do the following:
5.11.1 Pay and discharge the same; or
5.11.2 Effect the release of it by recording and delivering to the
Agency a surely bond in sufficient form and amount, or
otherwise; or
5.11.3 Give the Agency other assurance that the Agency, in its sole
discretion, deems satisfactory to protect the Agency from the
effect of the lien or bonded stop notice.
5._12 Defects in plans. The Agency will not be responsible to the Developer or to
third parties for any of the following: (a)defects in the design of the Project
improvements, or (b) any structural or other defects in any work that
Developer, or its agents, employees or contractors do according to the
approved plans and specifications,or(c)any delays caused by the Agency's
review and approval, or by any other governmental review and approval
processes. The Developer will hold harmless, indemnify, and defend the
Agency, and its officers, employees, agents and representatives from any
claims, suits for damages to property or injuries to persons arising out of or
relating to defects in the design including, without limitation, the violation of
any laws, and for defects in any work Developer or its representatives,
employees,or agents does according to any Agency-reviewed and approved
design or drawings or other construction items.
5.13 Utilities. Developer is responsible,at its sole cost and expense,to determine
the location of any utilities on the Property and to negotiate with the utility
companies for and to relocate the utilities, if any, as necessary to complete
the Project.
5.14 Hiring preferences to Project Area residents. A fundamental purpose of
redevelopment is to expand the employment opportunities for jobless,
underemployed, and low-income persons. The Developer, through its
18 May 26, 2004 v6
construction contractor, shall give preference for employment to those
qualified individuals,if available, residing within the Project Area governed by
the Redevelopment Plan.
5.15 Access. Until the Agency issues the Release of Construction Covenants,
and solely to assure compliance with this Agreement, City and Agency
representatives may access the Property,during normal construction hours,
free of any charge or fee, if the representatives comply with all safety rules.
Other than during emergencies, the Agency representatives shall notify
Developer at least 24 hours before accessing the Property. This provision
shall not be construed as limiting the City's rights, under all applicable law,
ordinances, and regulations, to carry out code enforcement and to
administratively inspect the Property.
6. Indemnity; Insurance
6.1 Indemnity. The Developer shall indemnify, hold harmless and defend the
Agency, and each its officers, officials, employees, agents and volunteers
from any loss, liability, fines, penalties, forfeitures, costs and damages
(whether in contract,tort or strict liability including,without limitation, personal
injury, death at any time and property damage)incurred by the Agency, the
Developer or any other person, and from any claims, demands and actions
in law or equity(including attorneys'fees and litigation expenses), arising or
alleged to have arisen directly or indirectly out of performance of this
Agreement. The Developer's obligations underthe preceding sentence shall
apply whether the Agency or any of its respective officers, officials,
employees, agents or volunteers are actively or passively negligent. The
preceding sentence shall not apply to any loss, liability, fines, penalties,
forfeitures,costs or damages caused solely by the active negligence or by the
willful misconduct of the Agency or any of its officers, officials, employees,
agents or volunteers.
This indemnity shall also cover, without limitation, the following: (i) any act,
error or omission of the Developer or any of its officers, employees,
contractors,subcontractors,invitees,agents or representatives in connection
with this Agreement, the Project or the Property;(ii)any use of the Property,
the Project by the Developer or any of its officers, employees, contractors,
subcontractors, invitees, agents or representatives, successors or assigns;
(iii)the design, construction, operation or maintenance of the Project, or(iv)
failure of the Developer or any of its officers, employees, contractors,
subcontractors, invitees, agents or representatives to comply with any
Federal, State or local law, code, ordinance or regulation applicable to this
Agreement or the Project.
May 26, 2004 v6
If the Developer contracts or subcontracts any of the work to be performed
under this Agreement, the Developer shall require each contractor or
subcontractor to indemnify, hold harmless and defend the Agency and each
of its respective officers, officials, employees, agents and volunteers
according to the preceding paragraph.
This section shall survive termination or expiration of this Agreement and the
recordation of the Grant Deed.
6.2 Insurance. Until the Agency issues the Release of Construction Covenants
and the Release is recorded in the Official Records of Fresno County, the
Developer shall pay for and maintain,or cause to be paid and maintained,in
effect all insurance policies required hereunder with insurance companies
either(i)admitted by the California Insurance Commissioner to do business
in the State of California and rated not less than "A-VII" in Best's Insurance
Rating Guide; or(ii) authorized by the City's Risk Manager. The following
policies of insurance are required, and Developer will deliver proof of these
policies before the Closing and before starting construction:
6.2.1 Commercial General Liability insurance that shall include
contractual, products and completed operations coverages, bodily
injury and property damage liability insurance with combined single
limits of not less than$1,000,000 per occurrence.
6.2.2 Commercial Automobile Liability insurance,endorsed for"any auto"
with combined single limits of liability of not less than$1,000,000 per
occurrence.
6.2.3 Workers'Compensation insurance as required under the California
Labor Code.
6.2.4 Builders Risk insurance sufficient to cover 100 percent of the
replacement value of all improvements made on the Property
including,without limitation,terms of labor and materials in place or to
be used as part of the permanent construction (including, without
limitation, surplus miscellaneous materials and supplies incidental to
the work, and scaffolding, staging, towers, forms and equipment not
owned or rented by the Developer,the cost of which is not included in
the cost of work).
The above described policies of insurance shall be endorsed to
provide an unrestricted 30-day written notice in favor of the Agency,of
policy cancellation, change or reduction of coverage, except the
Workers' Compensation policy that shall provide a 10-day written
notice of such cancellation, change or reduction of coverage. If any
20 May 26,2004 v6
�e
policy is due to expire during the term of this Agreement, the
Developer shall provide anew certificate evidencing policy renewal not
less than 15 days before the expiration date of the policy. When an
insurer, broker, or agent issues a notice of cancellation, change or
reduction in coverage,the Developer shall immediately obtain and file
a certified copy of a new or renewal policy and certificates for such
policy with the Agency.
The General Liability and Automobile Liability insurance policies shall
be written on an occurrence form and shall name the Agency, its
officers,officials, agents, employees and volunteers as an additional
insured. Each policy shall be endorsed so that Developer's insurance
is primary and no contribution is required of the Agency. The
Developer shall furnish the Agency with copies of the actual policies
upon the request of the Agency's Executive Director, the Director's
designee, or the City's Risk Manager.
If the Developer fails to maintain the required insurance in full force
and effect,Developer shall immediately discontinue all work underthis
Agreement until the Agency receives notice that the required insurance
has been restored to full effect and that the premiums for the
insurance have been paid for a period satisfactory to Agency.
Developer's failure to maintain any required insurance shall be
sufficient cause for the Agency to terminate this Agreement.
If the Developer subcontracts all or any portion of the work under this
Agreement,the Developer shall require each subcontractor to provide
insurance protection in favor of the Developer and the Agency, its
officers,officials, employees, agents and volunteers according to the
terms of each of the preceding paragraphs, except that the
subcontractors'certificates and endorsements shall be on file with the
Developer and Agency before the subcontractor begins any work.
6.2.5 Insurance for Project design work. For the Developer's Project
design work the Developer shall maintain, and if the Developer
subcontracts any of the Project design work, the Developer shall
require each design subcontractor to maintain Professional Liability
insurance (errors and omissions) with a limit of not less than
$1,000,000 per occurrence.
If claims made forms are used for any Professional Liabil#ty Coverage,
either(i) the policy shall be endorsed to provide not less than a five-
year discovery period, or (ii) the coverage shall be maintained for a
minimum of five years after the Release of Construction Covenants is
May 26, 2004 v6
4�; �
recorded_ The requirements of this section relating to such coverage
shall survive termination or expiration of this Agreement.
6.2.6 Performance and Payment Bonds. Developerwill obtain and deliver
labor and material bonds, payment, and performance bonds, issued
by an insurance company meeting the criteria for Developer's other
insurance under this Agreement. The bonds will each contain a penal
sum at least equal to 100 percent of Developer's estimated
construction costs. The bonds will name the Agency as co-obligee.
Agency, at the Executive Director's option, instead of requiring
performance and payment bonds, may consider and accept other
evidence, satisfactory to the Director, of the Developer's ability to
complete the Project.
7. Security financing and rights of holders.
7.1 Encumbrances only for development purposes. Notwithstanding any
other provision of this Agreement, Developer may not grant a security interest
in the Property before the Agency issues and records a Release of
Construction Covenants. This prohibition does not apply to a Security
Financing Interest securing the construction and permanent financing shown
in the approved Financing Plan.
7.2 Holder Not Obligated to Construct. The holder of any Security Financing
Interest is not obligated to perform Developer's construction obligations,or to
guarantee construction of the Project,whether under this Agreement or any
Grant Deed. However,any holder of a Security Financing may not devote the
Property to any use, and may not construct any improvements on the
Property, except as authorized by this Agreement.
7.3 Notice of Default to Holder,and Right to Cure. If a holder or the Developer
gives the holder's address to the Agency and asks the Agency to notify the
holder, the Agency will give a duplicate notice to the holder of any notice or
demand that it gives to Developer of any Default. Within 30 days after the
receipt of the notice,each such holder of record will have the right,but not the
obligation, to cure the Developer's default or breach.
Except as necessary to conserve or protect improvements already
constructed, a holder of a Security Financing Interest may not undertake to
complete the Project,without first expressly assuming Developer's obligations
hereunder in a writing satisfactory to the Agency. Under any assumption
agreement,the holder must agree to complete the Project as provided in this
Agreement. It must also submit evidence satisfactory to the Agency that it
has the qualifications and financial responsibility necessary to perform the
obligations. Any holder properly completing the Project will be entitled, upon
written request, to a Release of Construction Covenants from the Agency.
22 May 26,2004 v6
�f�
7.4 Failure of holder to complete Project. If a holder of a Security Financing
Interest assumes the Developer's construction obligations but, within six
months after Developer's Default, does not proceed diligently with
construction, the Agency will have the same rights against the holder as it
would otherwise have against the Developer. The Agency's rights against the
holder will be to the extent the events producing the rights occur after the
holder assumes control of the Property, unless otherwise provided in the
assumption agreement between the Agency and the holder.
7.5 Right of Agency to cure. If (a) the Developer defaults under a Security
Financing Interest before completing the Project,and(b)the holder does not
assume Developers construction obligations,then the Agency may cure the
default before foreclosure. If the Agency cures the default, Developer will
reimburse the Agency on demand for all costs and expenses it incurs to cure
the default. The Agency may lien the Property to the extent of such costs and
expenses. Any lien will be subordinate to any Security Financing Interest
created to secure a debt,the proceeds of which the Developer uses solely to
develop the Property, as authorized in this Agreement.
7.6 Right of Agency to satisfy other liens. Until the Developer completes the
Project and the Agency records the Release of Construction Covenants,the
Agency may cure Developer's default of other liens. Agency will not exercise
the right until Developer has had a reasonable time to challenge, cure, or
satisfy the liens or encumbrances. This provision does not prevent the
Developer from contesting the validity or amount of a tax, assessment, lien
or charge. In doing so, the Developer must act in good faith, the payment
delay must not subject the Property to forfeiture or sale. Before the tax,
assessment, lien or charge is due and payable, the Developer must give
reasonable security to the Agency for the lien or charge, and notify the
Agency that it will appeal any property tax assessment.
7.7 Holder to be notified of provisions. Before Developer grants any Security
Financing Interest in any parcel,Deveioperwill cause the holder of a Security
Financing Interest to insert or incorporate the provisions of this Section 7 into
the documents evidencing the Security Financing Interest,or to acknowledge
the provisions in writing.
8. Developer's continuing obligations. The following obligations of Developer will
run with the land and survive the Closing, the recording of the Grant Deed and this
Agreement, and the recording of the Release of Construction Covenants:
8.1 Environmental. After Closing, the Developer will take all necessary
precautions to prevent the release into the environment of any Hazardous
Materials in, on or under the Property. Developer will comply with all
governmental requirements with respect to Hazardous Materials.
2 3 May 26, 2004 v6
8.2 Disclosures after Closing. After Closing and until the Release of
Construction Covenants is recorded,the Developer will notify the Agency,and
give the Agency a copy or copies of all environmental permits, disclosures,
applications, entitlements or inquiries relating to the Property including,
without limitation, notices of violation, notices to comply, citations, inquiries,
cleanup orabatement orders,cease and desist orders,reports filed pursuant
to self-reporting requirements,and reports filed or applications made pursuant
to any Governmental Requirement relating to Hazardous Materials and
underground tanks. Immediately after each incident,the Developer will report
any unusual or potentially important incidents respecting the environmental
condition of the Property to the Agency.
If a release of any Hazardous Materials into the environment occurs, the
Developer will,as soon as possible after the release,furnish the Agency with
a copy of any reports relating thereto and copies of all correspondence with
governmental agencies relating to the release. Upon request,the Developer
will furnish the Agency with a copy of any other environmental entitlements
or inquiries relating to or affecting the Property including,without limitation,all
permit applications,permits and reports, including reports and other matters,
which may be characterized as confidential.
8.3 Developer Indemnity. After the Closing, Developer will indemnify, defend,
and hold the Agency harmless from any claim, action,suit,proceeding, loss,
cost,damage,liability,deficiency,tine,penalty,punitive damage,or expense
(including, without limitation,attorneys'fees), arising out of(i)the presence,
release, use, generation, discharge, storage or disposal of any Hazardous
Materials on, under, in or about the Property, or the transportation of any
Hazardous Materials to or from the Property, or(ii) the violation, or alleged
violation, of any statute, ordinance, order, rule, regulation, permit, judgment
or license relating to any use, generation, release, discharge, storage,
disposal or transportation of Hazardous Materials on, under, in or about, to
or from, the Property. This indemnity will include, without limitation, any
damage, liability, fine, penalty, parallel indemnity after Closing, cost or
expense arising from or out of any claim, action, suit or proceeding for
personal injury(including sickness, disease or death), tangible or intangible
property damage, compensation for lost wages, business income, profits or
other economic loss, damage to the natural resource or the environment,
nuisance, contamination, leak, spill, release or other adverse effect on the
environment. The indemnity covers,without limitation,(a)all foreseeable and
unforeseeable consequential damages, (b) the cost of any required or
necessary repair,cleanup,or detoxification and the preparation of any closure
orother required plans,and(c)costs of legal proceedings and attorneys fees.
24 May 26, 2004 v6
�C�
8.4 Release of Agency. Developer releases Agency from all claims Developer
may have against Agency resulting from or connected with the environmental
condition of the Property. Such claims include,without limitation, all claims
Developer may have against Agency under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended (CERCLA), or any other federal, state, or local law, whether
statutory or common law,ordinance, or regulation conceming the release of
Hazardous Materials or substances into the environment From or at the
Property, and the presence of such materials in, on, under, or about the
Property. Developer expressly waives the benefits of Civil Code§1542,which
reads as follows.-
"A general release does not extend to claims which the creditor
does not know or expect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected settlement with the debtor."
Developer's obligations under this indemnity and release shall survive the
Closing, recording of the Grant Deed, and recording of the Release of
Construction Covenants.
8.5 Developer and assignment.
8.5.1 Prohibition against transfer of the Property and assignment of
Agreement. The purpose of this subsection is to prevent land
speculation. Until the Agency has recorded the Release of
Construction Covenants, Developer shall not do or attempt to do the
following without first obtaining the Agency's consent:(a)sell,transfer,
convey,assign,or lease, any of the Property, or the improvements on
it, or (b) sell, transfer, convey, or assign any rights and obligations
under this Agreement. Agency consent shall be conditioned on the
proposed transferee's written agreement to be bound by the continuing
indemnity provisions and continuing covenants of this Agreement,and
by the continuing covenants in the Grant Deed.
8.5.2 Permitted Transfers. Notwithstanding the foregoing, the following
events("Permitted Transfers") shall not be deemed a transfer for the
purposes of requiring the Agency's consent:
8.5.2.1 Creation of Security Financing Interests;
8.5.2.2 A sale, conveyance, or transfer of the Property at
foreclosure (or a deed in lieu of foreclosure)resulting from
a Security Financing Interest;
May 26, 2004 v6
8.5.2.3 The conveyance or dedication of parts of the Property to the
City or any other governmental agency, or the grant of
easements or permits to facilitate the development of the
Property; or,
8.5.2.4 The grant of temporary easements or permits to facilitate
the development of the Property before the Release of
Construction Covenants is recorded.
8.5.3 Approval or consent of Agency. When a request for transfer or
assignment is submitted to the Agency for consideration,approval will
be conditioned, without limitation, on the following:
8.5.3.1 Financial strength and business experience. The
proposed transferee will demonstrate to the Agency's
satisfaction that the proposed transferee has sufficient
financial strength and the business experience in planning,
financing,development,ownership,and operation of similar
projects to complete the Project competently.
8.5.3.2 Assumption agreement. Any transferee, by recordable
instrument acceptable to the Agency, shall expressly
assume all the unfulfilled or ongoing obligations of the
Developer under this Agreement,and agree to be subject to
all the conditions and restrictions to which the Developer is
subject with respect to the Property.
8.5.3.3 Transfer documents. The Developer or its successors
shall submit all documents, proposed to effect any the
transfer or assignment, to the Agency for review.
8.5.3.4 Other information. Developer or its successors shall
deliver all information to the Agency that the Agency may
reasonably request to enable it to evaluate the proposed
transfer or assignment. Agency shall approve,conditionally
approve, or disapprove a request for assignment within 60
days after receiving the request and all supporting
documentation. Agency may require Developer to
reimburse Agency for its actual, reasonable, out-of-pocket
expenses(including attorneys'fees)incurred in investigating
a proposed assignee's qualifications as a permitted
assignee hereunder.
8.5.3.5 Developer's release. The Agency's approval of any
transfer, assignment, or sale will not relieve the Developer
26 May 26, 2004 v6
3 (
or any successor from any unfulfilled or ongoing obligations
of Developer under this Agreement, unless the Agency
specifically releases the Developer or any successor. The
provisions of this subsection are intended to
discourage land speculation,and these provisions shall
be liberally interpreted to accomplish that end.
8.13 Insurance and indemnity. Developer will comply with the insurance and
indemnity requirements in this Agreement.
8.7 Taxes and assessments. The Developer will pay before delinquency all ad
valorem real estate taxes and assessments on the Property, subject to the
Developer's right to contest any taxes or assessments in good faith. The
Developer will remove any levy or attachment on the Property or any part of
it, or assure the satisfaction of the levy or attachment within a reasonable
time. The Developer will not apply for or receive any exemption from the
payment of property taxes or assessments on any interest in or to the
Property including,without limitation, the on-site Project improvements.
8.13 Compliance with laws. In performing its obligations hereunder, Developer
shall comply with all applicable laws, regulations, and rules of the
governmental agencies having jurisdiction including, without limitation,
applicable federal and state labor standards and environmental laws and
regulations. Developer, not the Agency, is responsible for determining
applicability of and compliance with all local,state,and federal laws including,
without limitation, the California Labor Code, Public Contract Code, Public
Resources Code,Health&Safety Code,Government Code,the City Charter,
and Fresno Municipal Code. The Agency makes no representations
regarding the applicability of any such laws to this Agreement,the Project,or
the parties' respective rights or obligations hereunder including, without
limitation, payment of prevailing wages, competitive bidding, subcontractor
listing, or other matters. Agency shall not be liable or responsible, in law or
equity, to any person for Developer's failure to comply with any such laws,
whether the Agency knew or should have known of the need for Developer
to comply, or whether the Agency failed to notify Developer of the need to
comply.
8.9 Indemnification for any failure to comply with laws_ Developer shall
defend, indemnify and hold the Agency,and its officers,employees, agents,
representatives,and volunteers(collectively the"Indemnitees")harrniess from
and against all present and future liabilities, obligations, orders, claims,
damages,fines,penalties and expenses(including attorneys'fees and costs)
" (collectively, "Claims"), arising out of or in any way connected with
2� May 26, 2004 A
2
Developer's obligation to comply with the above covenant to comply with all
laws.
8.10 Waiver under Civil Code. The Developer waives, releases and forever
discharges the Agency, all Agency employees, officers, agents,
representatives, and volunteers from and against all present and future
Claims arising out of or in any way connected with Developer's obligation to
comply with all laws. Developer knows the provisions of Section 1542 of the
California Civil Code that provides as follows:
"A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing the
release, which if known by him must have
materially affected his settlement with the debtor."
As to any application or potential application of Section 1542 to this
subsection and the indemnification and waiver,Developer hereby waives and
relinquishes all rights and benefits that it may have under Section 1542 of the
California Civil Code.
8.11 Covenants. The covenants set forth in the Grant Deed are,by incorporation
of the Grant Deed into this Agreement, made a part of this Agreement as
though fully set forth in this Agreement. Developer shall keep the covenants
in the manner and for the times set forth in the Grant Deed,
8.12 Representations and Warranties of Developer. The following
representations and warranties shall survive the recording of the Grant Deed
conveying the Property to Developer. The Agency shall rely on these
representations and warranties throughout the term of the Agreement, until
the Agency has been notified of any substantial change affecting the
representations and warranties. Developer and each person executing this
Agreement for Developer represents and warrants that:
8.12.1 Developer is a corporation, duly organized and existing under
the laws of the State of California, in good standing, and
authorized to do business in the State of California, County of
Fresno, and City of Fresno.
8.12.2 Developer has all requisite power and authority to carry out its
business as now and hereafter conducted and to enter and
perform its obligations under this Agreement.
8.12.3 By proper action of the Developer's Board of Directors or other
governing body,the person or persons signing this Agreement
9 May 26, 2004 v6
r.7�}
for Developer have been duly authorized to execute and deliver
this Agreement and to legally bind the Developer to its terms
and conditions.
8.12.4 Developer's execution and performance of this Agreement do
not violate any provision of any other agreement to which
Developer is a party.
8.12.5 Except as may be specifically set forth in this Agreement, no
approvals or consents except those that the Developer has
already obtained are necessary for Developer to execute this
Agreement,or to perform its obligations under this Agreement.
8.12.6 Developer has or will have sufficient funds available to fund the
Project and to pay all costs assumed by Developer hereunder.
8.12.7 This Agreement is valid, binding, and enforceable against
Developer in accordance with its terms.
8.12.8 The Developer will use the Property(fair market value)to fulfill
its match requirement under the Murray-Hayden Urban Parks
and Youth Service Program funding/grant for Phase 1.
9. Default,remedies and termination. Failure or delay by either party to perform any
term of this Agreement shall be a default under this Agreement. A party's failure or
delay in asserting any right or remedy will not constitute a waiver,and will not deprive
the parry of its right to institute and maintain any action or proceeding necessary to
protect or enforce any right or remedy.
9,1 Legal actions. A party may institute a legal action to cure,correct,or remedy
any default,to recover damages for any default,or to obtain any other remedy
consistent with the purposes of this Agreement_ They shall bring such legal
action in the Fresno County courts, or the Fresno Division of the Federal
District Court for the Eastern District of California. Service of process shall be
made on the Agency by personal service on the Executive Director or in any
other manner permitted by law. Service of process shall be made on the
Developer,or in any other manner permitted by law,whether service is made
in or out of California.
9.2 Rights and remedies are cumulative. Except as may be expressly stated
otherwise in this Agreement, the rights and remedies of the parties are
cumulative. The exercise by either party of one or more of its rights or
remedies shall not preclude the exercise by it,at the same or a different time,
of any other rights or remedies for the same default or any other default. In
addition to the specific rights and remedies herein, the parties may resort to
29 May 26, 2004 v6
any other rights or remedies available at law or in equity including, without
limitation, specific performance.
9.3 Notice and cure periods. If either party fails to perform under any provision
of this Agreement, the nondefaulting party shall serve written notice of the
default on the defaulting party,describing the default,and reciting the time for
cure. A defaulting party will have 30 days from the date of the notice to cure
the breach or failure. If the default is not susceptible to cure within the 30
days, the defaulting party shall begin to cure the default within 30 days and
after that diligently prosecute the cure to completion. Failure of the defaulting
party to cure within these times shall entitle the nondefaulting party to enforce
any right or remedy provided in this Agreement, at law, or in equity. This
provision does not modify or extend any other notice or cure period
specifically provided for in this Agreement. Failure or delay in giving such
notice shall not constitute a waiver of any default, nor shall it change the time
of default.
9.4 Right to terminate agreement.
9.4.1 Developer's right to terminate. If the Agency does not tender
conveyance of the Property to the Developer within the time specified.
the Developer may terminate the Agreement after notice of default and
time to cure,and subsequent written notice to the Agency and Escrow
Holder. The Agency shall return to the Developer any consideration
that it has paid For the Property. After that neither the Agency nor the
Developer shall have any further rights against or liability to the other
party under this Agreement.
9.4.2 Agency's right to terminate. If before the Agency records the
Release of Construction Covenants, any of the following occurs, the
Agency may terminate this Agreement:
9.4.2.1 The Developer, without complying with this Agreement,
assigns any rights or obligations under this Agreement, or
sells, transfers, or conveys any of the Property or the
Project; or,
9.4.2.2 Any significant change in the identity of the Developer, or
any assignee, not permitted by this Agreement, occurs; or,
9.4.2.3 The Developer does not submit drawings, plans or other
documents or submittals as required by this Agreement
within the times specified in this Agreement or the
Development Schedule; or,
30 May 26, 2004 v6
35
9.4.2.4 The Developer does not take title to the Property when the
Agency tenders conveyance pursuant to this Agreement;
and
9.4.2.5 Developer defaults under this Agreement and does not cure
the default following demand notice and opportunity to cure
as provided in this Agreement.
9.5 Power of Termination. The Agency may reenter and take possession of the
Property, or part of it, and all improvements on it, terminate part or all of the
estate conveyed to Developer by the Grant Deed,and revest the estate in the
Agency if, before recording the Release of Construction Covenants, any of
the following occurs:
9.5.1 Developer does not begin or complete construction of the Project
within the time specified in the Development Schedule or this
Agreement; or,
9.5.2 Developer abandons or substantially suspends construction of the
Project for 30 days after the Agency gives written notice of the
abandonment or suspension; or,
9.5.3 Developer assigns or transfers, or suffers an involuntary transfer of,
any rights or obligations under this Agreement, or in the Property,
violating the assignment provision of this Agreement.
9.6 Effect on security holders. Such right to reenter,repossess,terminate and
revest shall be subject to, limited by, and shall not defeat, render invalid, or
limit: (i) any Security Financing Interest permitted by this Agreement; or(ii)
Any provision of this Agreement protecting the holder's Security Financing
Interests.
9.7 Recognition of Agency right. The Grant Deed, and any subsequent deed
for an approved Property transfer or conveyance shall contain appropriate
provisions to giving effect to the Agency's right to reenter and take possession
of the Property, or any part of it, and all improvements thereon, and to
terminate the estate conveyed to the Developer, and revest it in the Agency.
9.8 Resale of the Property. When title to the Property revests in the Agency,the
Agency shall use its best efforts to resell the Property, consistent with the
objectives of the Law and of the Redevelopment Plan, to a qualified and
responsible party(as determined by the Agency). The transferee will assume
the obligation of completing the Project or constructing improvements other
than the Project, satisfactory to the Agency and according to the uses
31 May 26, 2004 v6
3(0
specified in the Redevelopment Plan. Upon any resale of the Property, or
part of it, the proceeds shall be applied as follows:
9.8.1 First, to reimburse the Agency for(a)all costs and expenses incurred
(including,without limitation,salaries of personnel)in connection with
the recapture, management, and resale of the Property, or part of it,
less any income the Agency derived from the Property in connection
with the management; (b) all taxes, assessments, and water and
sewer charges respecting the Property (or, if any of the Property is
exempt from taxation or assessment or such charges during the
Agency's ownership, then such taxes, assessments or charges as
would have been payable if the Property were not so exempt);(c)any
payments necessary to discharge or prevent any subsequent
encumbrances or liens due to obligations, defaults, or acts of the
Developer,its successors or transferees from attaching or being made;
(d) any expenditures made or obligations incurred to complete the
Project or other improvements on the Property; and any amounts
otherwise owing to the Agency from the Developer or by its successor
or transferee; and
9.8.2 Second,to reimburse the Developer,its successor or transferee,up to
the amount equal to the sum of (a) the purchase price paid to the
Agency for the Property; and (b) the out-of-pocket costs incurred to
develop and improve the Property, less(c)any gains or income to the
Developer from the Property,the Project or other improvements on it.
Notwithstanding the foregoing,the amount calculated pursuant to this
paragraph shall not exceed the price that the Developer paid the
Agency for the Property,and the fair market value of the improvements
on it when the default or failure occurred, which led to the Agency's
exercise of the Power of Termination.
9.8.3 The Agency shall retain any balance remaining after such
reimbursements.
9.9 No speculation in land. The rights established in this Section 9 shall be
interpreted considering the Agency's intent to convey the Property to the
Developer for development of the Project, and not for speculation in
undeveloped land or any other purpose.
10. General provisions
10.1 Notice, demands and communication. Formal notices, demands, and
communications between the Agency and the Developer shall be given as
follows: (i)personal delivery,or(ii)delivery by a reputable document delivery
service such as Federal Express that provides a receipt showing date and
32 May 26,2004 A
37
time of delivery, or(iii)by facsimile via a machine that issues a confirmation
showing the date and time of transmission, and the office name and number
to which the transmission was made, or (iv) by registered or certified mail,
return receipt requested, postage prepaid, addressed to the principal offices
of the Agency or the Developer as follows:
AGENCY:
Redevelopment Agency of the City of Fresno
Attention: Executive Director
2344 Tulare Street, Suite 200
Fresno CA 93721
Facsimile No.: (559)498-1870
WITH COPIES TO:
City Attorney as Ex-Officio Attorney
for the Redevelopment Agency
2600 Fresno Street, Room 2031
Fresno CA 93721-3602
Facsimile No.: (209) 488-1084
DEVELOPER:
Fresno County Economic Opportunities Commission
Attention: Executive Director
1920 Mariposa Mall, Suite 300
Fresno, CA 93721-2526
A party may change its address by notice given according to this subsection.
10.2 Force majeure; unavoidable delay. Unless covered by a specific provision
of this Agreement (e.g., specific provision for construction delay) to the
contrary,a party will not be deemed in default for unavoidable delay or default
due to war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires;
freight embargoes; court order; or any other similar causes (other than
Developer's lack of funds or the Developer's inability to obtain financing to
construct the Project) beyond the control or without the fault of the parry
claiming an extension of time to perform. An extension of time shall be
granted only upon notice by the party claiming such unavoidable delay, sent
to the other within 10 days after the cause for delay begins or occurs, and the
parties have mutually agreed in writing to extend the time,and have noted the
extension in an adjustment to the Development Schedule.
10.3 Conflict of interests. No member,official,officer or employee of the Agency
shall have any direct or indirect interest in this Agreement,or shall participate
May 26. 2004 A
in any decision relating to this Agreement where the law prohibits such
interest or participation. No officer,employee,or agent of City who exercises
any function or responsibility concerning the planning and carrying out of the
Project, or any other person who exercises any function or responsibility
concerning any aspect of this Agreement or the Project, shall have any
personal financial interest,direct or indirect,in this Agreement or the Project.
10.4 Nonliability of officials, employees and agents. No member, official,
officer, employee or agent of the Agency shall be personally liable to the
Developer, or any successor in interest, for any default or breach by the
Agency.
10.5 Executive Director Authority. The Executive Director or his designee is
authorized to act for the Agency where any Agency action or approval is
required or permitted herein, unless this Agreement, the law, or Agency
bylaws,resolutions or procedures provide otherwise,or the context otherwise
requires.
10.6 Counterparts. This Agreement may be executed in counterparts, and
together each executed counterpart shall constitute one Agreement.
10.7 Waiver. A party's waiver of the other's breach of any provision of this
Agreement, shall not constitute a continuing waiver or a waiver of any
subsequent breach of the same or a different provision of this Agreement. No
provision of this Agreement may be waived except in a writing signed by all
parties. Waiver of any provision shall not be deemed to be a waiver of any
other provision herein.
10.8 Attorneys' fees. If a party initiates or defends litigation or any legal
proceeding regarding the enforcement of this Agreement,the prevailing party
in such litigation or proceeding, in addition to any other relief that may be
granted, shall be entitled to reasonable attorneys'fees. Attorneys'fees shall
include attorneys'fees on any appeal. A party entitled to attorneys'fees shall
be entitled to all other reasonable costs for investigating the action, retaining
expert witnesses, taking depositions and discovery, and all other necessary
costs incurred with respect to the action. All such fees shall be deemed to
have accrued on commencement of the action and shall be enforceable
whether or not such action is prosecuted to judgment.
10.9 Governing law. This Agreement shall be interpreted and enforced, and the
rights and duties of the parties under this Agreement (both procedural and
substantive) shall be determined, according to California law.
34 May 26,2004 v6
10.10 Further assurances. Each party will take any further acts and will sign and
deliver any further instruments required to carry out the intent and purposes
of this Agreement.
10.11 Entire understanding of the parties. The parties will execute three
duplicate originals of this Agreement, The exhibits referenced as attached
are by such references incorporated into this Agreement. This Agreement,
including the exhibits, is the entire understanding and agreement of the
parties. This Agreement supersedes all prior discussions, understandings,
and written agreements. This Agreement shall not be modified except by
written instrument duly approved as required by law and executed by
authorized representatives of the parties. Should the terms of any exhibit
conflict with the body of this Agreement, the body of this Agreement shall
govern.
10.12 Consent, reasonableness. Unless this Agreement specifically authorizes
a party to withhold its approval, consent, or satisfaction in its sole discretion,
any consent, or approval, or satisfaction to be requested or required of a
party, shall not be unreasonably withheld, conditioned, or delayed.
10.13 Partial invalidity. If any part of this Agreement is held to be invalid, void, or
unenforceable in any legal,equitable or arbitration proceeding,the remainder
of the Agreement shall continue in effect,unless not giving effect to the invalid
or unenforceable part would prevent effecting the redevelopment purposes
of the Project and this Agreement.
10.14 Ambiguity. This Agreement is the result of the combined efforts of the
parties. Should any provision of this Agreement be found ambiguous, the
ambiguity shall not be resolved by construing this Agreement in favor of or
against any party, but by construing the terms according to their generally
accepted meaning, considering the objective of the Agreement.
10.15 Number and gender. Masculine, feminine or neuter gender terms and
singular or plural numbers will include others when the context so indicates.
10.16 Headings. All headings are for convenience only, are not a part of this
Agreement, and are not to be used in construing this Agreement.
10.17 Binding upon successors. This Agreement shall bind and inure to the
benefit of the successors in interest, personal representatives, and assigns
of each party, subject to the limitation on transfer and assignment contained
in this Agreement. Any reference in this Agreement to a specifically named
party shall be deemed to apply to any successor, heir, administrator,
3 5 May 26, 2004 v6
4-0
executor, representative, or assign of the party who has acquired an interest
in compliance with the terms of this Agreement, or under law.
10.18 Relationship of the parties. The relationship between the Agency and the
Developer is solely that of a California redevelopment agency and an
independent, private Developer of property in a redevelopment project area.
Nothing in this Agreement,the Grant Deed,or any other document executed
in connection with this Agreement shall be construed as creating a
partnership, joint venture, agency, employment relationship or similar
relationship between the Agency and the Developer or any of the Developer's
contractors,subcontractors,employees,agents,representatives,transferees,
successors-in-interest or assigns. Nothing in this Agreement establishes a
principal and agent relationship between the parties.
10.19 Nature of the Project. The Project is a private undertaking of the Developer.
After the Agency conveys title or possession of the Property to the Developer,
the Developer shall have exclusive control over the Property, subject to the
terms of this Agreement, the Redevelopment Plan, the Law and all other
applicable Federal, State and local laws, ordinances, codes, regulations,
standards and policies. By entering and performing this Agreement, the
Agency does not approve or endorse the Project except to implement the
redevelopment purposes, goals, policies, and objectives of the
Redevelopment Plan and the Law.
10.20 Time of essence. Time is of the essence of each term, condition, and
covenant contained in this Agreement.
10.21 Survival of indemnification provisions. Unless otherwise specifically
stated herein,each indemnification provision set forth in this Agreement shall
survive the termination of this Agreement,shall survive the Closing,and shall
not merge with the Grant Deed or other document evidencing any interest in
real property.
10.22 Amendments or modifications. This agreement may be amended or
modified only by the written mutual consent of the parties, and the approval
of the Agency.
Il�'ll
1110
36 May 26,2004 v6
IN WITNESS WHEREOF, Agency and Developer have executed this Agreement
on the dates set forth below.
DEVELOPER: ;;-ems REDEVELOPMENT AGENCY OF
0,601'10 y,{C �PP�# .l��5 THE CITY OF FRESNO
u_A�.(SrYymtSS�UY`
By By
Moses Stites
Board Chair -C—so'live DiFe
Marlene Murphey
Redevelopment Administrator
By Dated:
Ber Palo no
ard Secretary
Dated: ���'
The above persons to execute this agreement before a Notary Public and attach
the notary acknowledgments.
ATTEST:
REBECCA E. KLISCH
Ex Officioo-Clerk
�r \V
APPROVED AS TO FORM:
HILDA CA.N ONTOY
Ex Officio A eputyR/Assisyt
/U-zoGjG
37 May 26.200 O
ALL-PURPOSE ACKNOWLEDGEMENT
State of California�n
County of 7—I�1(::;> I
SS.
On t 1 C�:4 before me, r�
I LO Et WCMARYI
personally appeared M�� to
SlGNFJII$I �'
personally known to me - OR ❑ 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
MARK A, ROCHA capacity(ies), and that by his/her/their
r� Comm,1132139G signature(s) on the instrument the person(s),
W tt4r+11r!ooclumly R1RA or the entity upon behalf of which the
Fr1Hlo Cellnlr
Atr Comm.iiptly UPI.20,2005
__.,. person(s) acted, executed the instrument.
WITNESS my hand and official seal.
_ r
tidrnRr•s"slcNniurE;
OPTIONAL INFORMATION
The information below is not required by law. However,it could prevent fraudulent attachment of this acknowl-
edgement to an unauthorized document.
CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
CORPORATE OFFICER �
r 1-R Dad�.� ,k_� ��`t�FFLE OR TYPE OF DOCUMENT -
TLF[SI `r
PARS e-1
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❑ ATTORNEY-IN-FACT NUMBEROFPAGES �
❑ TRUSTEE(S) •�
❑ GUARDIAN/CONSERVATOR &U j d-OO
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OTHER
ATE OF
❑ _ _ ���JJJ
OTHER
ER
SIGNER IS REPRESENTING: RIGHT THUMBPRINT z
NAMEOFPERSONIS)OR IMIF.SIOF
a
E.
SIGNER
APA 5199 VALLEY-SIERRA, BW362-3369
STATE Of: California
COUNTY OF Fresno
On February 16 2005 before me, 13. Watson
(Name, Title of Officer)
personally appeared Marlene Murphy
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal B.WATSON
COMM.#1523970
' NOT fR PtS
M. COUNiF7
(Signature of Notary Public) hty Comm.Expires Nov.1,2MB
(This area for notarial seal)
"I
Attachments: Exhibit A Property and Legal Descriptions
Exhibit B Scope of Development
Exhibit B-1 Site Plan/s
Exhibit C Development Schedule
Exhibit D Grant Deed
Exhibit E Release of Construction Covenants
Exhibit F Estimated Sources and Uses of Funds(Budget)
PROPERTY AND
LEGAL DESCRIPTIONS
Properties:
APN: Location: Acreage:
467-1,26-15T NE Corner of San Benito & "C"Streets 0.28 acres
467-126-16T East side of"C" SVHwy 99 Alley between
Santa Clara & San Benito Streets 0.35 acres
467-14.2-05T East side of"C"Street between
California& San Benito 2.69 acres
467-143-06T NW Corner of"C"and California Streets 0.69 acres
478-081-39T East side Elm Ave, No. of Lorena 0.67 acres
478-081-40T East side Elm Ave, So.of California 1.53 acres
478-085-07T North side California, between
"B" &"C" Streets 0.40 acres
6.61 total acres
Legal Descriptions:
467426-15T: Checked By:
Lalkumar Goonawardena, P.E.
Parcel No. 1; Lots 17, 18 and 19 in Block 234 of the Town (now City)of
Fresno, according to the map recorded in Book 1 page 7 of
Plats, Fresno County Records.
Parcel No, 2; A portion of San Benito Street, lying adjacent to and southeast
of the southeasterly line of Lot 17 in Block 234 of the Town
Exhibit A
Page A-1
(now City)of Fresno,as said street and lot is shown on the
supplemental map of the Town of Fresno, recorded in Book 1
page 7 of Plats, records of said County, and more particularly
described as follows:
Beginning at the most southerly corner of said Lot 17; thence
Northeasterly along the Southeasterly line of said Lot 17, a
distance of 150.0 feet to the most Easterly corner of said Lot
17,-thence Southeasterly along the Southeasterly projection of
the Northeasterly line of said Lot 17, a distance of 2.0 feet,
thence southwesterly along a line which is parallel with and 2.0
feet Southeast of the southeasterly line of said Lot 17 to the
intersection with the southeasterly projection of the
Southwesterly line of said Lot 17;thence Northwesterly along
the Southeasterly projection of the southwesterly line of said
Lot 17, a distance of 2.0 feet to the point of beginning.
Together with any portion of San Benito Street that would pass
by operation of law.
Checked By:
467-126-16T: La 3 kumar Goonawarcien , P "s.
Parcel No. 1: That portion of Lots 1 through 16 inclusive in Block 234 of the
Town(now City)of Fresno, according to the map recorded in
Book 1 page 7 of Plats, Fresno County Records,described as
follows:
Beginning at the most Southerly corner of said Lot 16: thence
(1)along the Southwesterly line of said Lots 16 through 1
inclusive, North 40°56'20"West,400.61 feet to the most
Westerly corner of said Lot 1; thence (2)South 64034'56" East,
48.92 feet; thence (3)South 43*34'18" East, 356.17 feet to the
Southeasterly line of said Lot 16; thence(4) along said
Southeasterly line, South 49003'49"West 35.98 feet to the
point of beginning.
Together with that portion of San Benito Street (a.k.a. San
Benito Avenue)as shown on the Supplemental Map of the
Town of Fresno, filed in the Office of the County Recorder
June 9, 1884 and recorded in Volume 1 of Plats at page 7,
Fresno County Records, and more particularly described as
follows:
Exbibit A
Page A-2
47
Beginning at the most Southerly comer of Lot 16 in Block 234 of
said Town of Fresno;thence Southeasterly,across said San
Benito Street(a.k.a. San Benito Avenue)to the most Westerly
corner of Lot 1 in Block 233 of said Town of Fresno,thence
Northeasterly,along the Northwesterly line of said Lot 1,to the
intersection with the Southwesterly right-of-way line of the
California State Freeway No. 99;thence along the Southwesterly
right-of-way line of said Freeway,to the intersection with the
Southeasterly line of said Lot 16, in said Block 234;thence
Southwesterly, along the Southeasterly line of said Lot 16, to the
Point of Beginning, as abandoned by that certain instrument
entitled Resolution Ordering Vacation of Public Streets and Alley,
recorded December 4, 1979 in Book 7424 of Official Records at
page 344, instrument No. 140680, Fresno County Records.
Excepting therefrom any portion thereof lying Southeasterly of the
centerline of San Benito Street a.k.a. San Benito Avenue)now
abandoned.
467-142-05T:
Checked By:
Lalkumar Goonawardena, P.E.
Parcel No, 1: Lots 17 to 32 inclusive, in Block 233 of the town(now city)of
Fresno,according to the Supplemental Map of the Town of
Fresno, filed in the Office of the County Recorder June 9. 1884
in Volume 1 of Plats at Page 7, records of said County.
Parcel No. 2 That portion of Lots 1 through 16 inclusive in Block 233 of the
town(now city)of Fresno, according to the supplemental map
recorded June 9, 1884 in Volume 1 of Plats at Page 7, records
of said County,described as follows:
BEGINNING at the most Westerly corner of said Lot 1; thence
(1)along the Northwesterly line of said Lot 1, North 49°03'49"
East, 39.36 feet; thence(2)South 43"34'18"East, 166.26 feet;
thence, (3)South 42018'40"East, 234.15 feet to the
Southeasterly line of said Lot 16; thence (4)along said
Southeasterly line, South 48°55'45"West, 52.55 feet to the
Southwesterly line of said Lots 1 through 16. North 40°56'51"
West,400.29 feet to the POINT OF BEGINNING.
Parcel No. 3: That portion of Block 232 of the Town (now City)of Fresno,
according to the Supplemental Map recorded June 9, 1884 in
Exhibit A
Page A-3
Volume 1 of Plats Page 7,records of said County, included
within the following described boundaries:
BEGINNING at the intersection of the centerline of the alley in
said Block with the Northwesterly line of said Block; thence(1)
along said Northwesterly line. North 4805545"East, 64.11 feet;
thence(2)South 42'18A0'East 159.86 feet to the South line
of Section 10,Township 14 South, Range 20 East, Mount
DiablorBase and Meridian; thence(3)along said South Line
North 89°21'22"West 90.70 feet to the centerline of said alley;
thence(4)along the centerline of said alley. North 40°5945"
West,99.47 feet to the POINT OF BEGINNING.
Excepting therefrom any portion thereof lying within East
California Avenue.
Excepting therefrom any portion thereof lying within the alley
bisecting said Block 232.
Parcel No.4: Lots 31 and 32 in Block 232 of the Town of Fresno, according
to the Supplemental Map recorded June 9, 1884 in Volume 1
of Plats Page 7, records of said County.
Excepting therefrom any portion thereof lying within California
Avenue as excepted in Deed from J.Alexander Mueller, also
known as Alex Mueller, et ux, to Henry Marks and James P.
Marks, recorded November 3, 1947 in Book 2575 of Official
Records at page 193, Fresno County Records, and in
subsequent deeds of record .
Parcel No. 5: Portions of"C"Street, San Benito Street(a.k.a. San Benito
Avenue), Monterey Street, lying adjacent to Blocks 232, 233
and 234 of the Town(now City)of Fresno, as said Streets and
Blocks are shown on the Supplemental Map of the Town of
Fresno,filed in the Office of the County Recorder June 9, 1884
and recorded in Volume 1 of Plats at Page 7, Fresno County
Records, and more particularly described as follows:
BEGINNING on the Southwesterly line of Lot 19, in said Block
234, at a point which is 5.20 feet Northwest of the most
Southerly corner of said Lot 19; thence South 41°00'23"East,
along the Southwesterly lines of Lots 19, 18 and 17 of said
Block 234, and along the Southeasterly production of the
Exhibit A
Page A-4
qq
Southwesterly line of said Lot 17, a distance of 57.20 feet, to a
point which is 2.00 feet Southeasterly of the most Southerly
comer of said Lot 17;thence North 49'05'37"East, parallel
with and 2.00 feet Southeast of the Southeast line of said Lot
17, a distance of 150.24 feet, to the intersection with the
Southeasterly production of the Northeast line of said Lot 17 in
said Block 234;thence South 41°02'38" East, a distance of
78.00 feet,to the most Northerly comer of Lot 32 in said Block
233;thence South 49°05'37"West, along the Northwesterly
line of said Lot 32, a distance of 150.30 feet,to the most
Westerly comer of said Lot 32 in said Block 233; thence South
41"00'23"East,along the Southwesterly lines of Lots 17 to 32,
inclusive, in said Block 233,a distance of 383.36 feet, to a
point which is 40.00 feet North of the North line of Section 15,
Township 14 South, Range 20 East, Mount Diablo Base and
Meridian, as said Section is shown on the United States
Township Plats; thence South 89024'48"East, parallel with the
North line of said Section 15, a distance of 25.11 feet,to the
intersection with the Southeasterly line of said Lot 17 in said
Block 233;thence, North 49°05'28"East, along the
Southeasterly line of said Lot 17, a distance of 131.77 feet, to
the most Easterly corner of said Lot 17, in said Block 233;
thence South 41°02'38"East, a distance of 80.00 feet, to the
most Northerly comer of Lot 32 in said Block 232;thence
South 49°05'28"West, along the Northwesterly line of said Lot
32, a distance of 41.52 feet,to a point which is 40.00 feet
North of the North line of said Section 15; thence North
89024'48"West, parallel with the North line of said Section 15,
a distance of 17.47 feet;thence Westerly along a tangent
curve,concave to the South and having a radius of 590.00
feet, through an interior angle of 13°44'36", an arc distance of
141.52 feet, to the intersection with a line which is parallel with
and 20.00 feet Southwest of the Southwest line of said Block
233; thence North 41°00'23"West, parallel with the Southwest
line of said Block 233, a distance of 523.42 feet;thence North
48059'37"East, a distance of 20.00 feet to the POINT OF
BEGINNING, as abandoned by that certain instrument entitled
Resolution Ordering Vacation of Public Streets and Alley,
recorded December 4, 1979 in Book 7424 of Official Records
at Page 344, instrument No. 140680, Fresno County Records.
Excepting therefrom any portion thereof lying northwesterly of
the centerline of San Benito Sireet(a.k.a. San Benito Avenue)
Exhibit A
Page A-5
now abandoned, and the southwesterly prolongation of said
centerline.
Parcel No. 6: That certain portion of San Benito Street(a.k.a. San Benito
Avenue)as shown on the Supplemental Map of the Town (now
city)of Fresno, fled in the Office of the County Recorder,tune
9, 1884 and recorded in Volume 1 of Plats at Page 7, Fresno
County Records, and more particularly described as follows:
BEGINNING at the most Southerly comer of Lot 16 in Block
234 of said Town of Fresno; thence Southeasterly, across said
San Benito Street(a.k.a. San Benito Avenue)to the most
Westerly comer of Lot 1 in Block 233 of said Town of Fresno;
thence Northeasterly, along the Northwesterly line of said Lot
i, to the intersection with the Southwesterly right-of-way line of
the California State Freeway No.99,thence along the
Southwesterly right-of--way line of said Freeway, to the
intersection with the Southeasterly line of said Lot 16, in said
Block 234; thence Southwesterly, along the Southeasterly line
of said Lot 16, to the POINT OF BEGINNING, as abandoned
by that certain instrument entitled Resolution Ordering
Vacation of Public Streets and Alley, recorded December 4,
1979 in Book 7424 of Official Records at page 344, instrument
No. 1404680, Fresno County Records.
Excepting therefrom any portion thereof lying Northwesterly of
the centerline of San Benito Street(a.k.a. San Benito Avenue)
now abandoned.
Parcel No. 7: That certain portion of Monterey Street, as shown on the
Supplemental Map of the Town (now city)of Fresno, filed in
the Office of the County Recorder June 9, 1884 and recorded
in Volume 1 of Plats at Page 7, Fresno County Records, and
more particularly described as follows:
BEGINNING at the most Southerly corner of Lot 16 in
Block 233 of said Town of Fresno; thence Southeasterly,
across said Monterey Street,to the most Westerly corner of
Lot 1 in Block 232 of said Town of Fresno;thence
Northeasterly, along the Northwesterly line of said Lot 1, to the
intersection with the Southwesterly right-of-way line of the
California State Freeway No. 99; thence Northwesterly, along
the Southwesterly right-of-way line of said Freeway, to the
Exhibit A
Page A-6
l
intersection with the Southeasterly line of said Lot 16, in said
Block 233; thence Southwesterly, along the Southeasterly line
of said Lot 16,to the POINT OF BEGINNING, as abandoned
by that certain instrument entitled Resolution Ordering
Vacation of Public Streets and Alley, recorded December 4,
1979 in Book 7424 of Official Records at Page 344, instrument
No. 140680, Fresno Co
Checked By:
46T-14:1-06T: Lal umar Goonawardena,
Parcel No. B of Parcel Map#74-53, recorded August 22, 1975, in the City of
Fresno, County of Fresno;State of California, in Book 17 of Parcel Maps at
page 49, Fresno County Records.
478-081-39T: Checked By: 1
Lalkumar Goonawardena P, E.
Parcel No.C of Parcel Map#74-62, recorded February 10, 197S,in the City of
Fresno, County of Fresno, State of California, in Book 15 of Parcel Maps at
page 53, Fresno County Records.
478-0814OT: Checked By: E
Lalkumar Goonawar end, P.E.
Parcel No. B of Parcel Map#74-62, recorded February 10, 1975, in the City of
Fresno, County of Fresno, State of California, in Book 15 of Parcel Maps at
page 53, Fresno County Records.
478-085••07T: Checked By:
Lalkumar Goonawardena, P.E.
Parcel No.A of Parcel Map#74-53, recorded August 22, 1975, in the City of
Fresno, County of Fresno, State of California, in Book 17 of Parcel Maps at
page 49, Fresno County Records.
Exhibit A
Page A-7
SCOPE OF DEVELOPMENT
EOC NEIGHBORHOOD YOUTH CENTER
California and C Streets
The Center will include:
• Three adjacent complexes comprised of ten buildings built in two phases
a. Building A: Pre-School/Daycare Building with adjacent children's playground
b. Building B: Community/Recreation & Health Services Building with adjacent
play courts and soccer field
c. Building C-1: Administration/ Education Building with adjacent courtyard
d. Building C-2: Vocational Training Building with adjacent Service Yard
e. Buildings C-3 to C-8: Modular Classroom Buildings adjacent to the
Administration/ Education Building.
• 186 off-street parking stalls
• Landscaping and off-site improvements as the City may require as a condition of
approval.
• Specific offsite improvements or improvements that the City may require to approve
development entitlements for the Project.
Phase 1.
Childr nj Pre-School/Daycare Center(Building A)for approximately 40 children on
APNs 4137-143-06T and 478-085-07T. The center will be housed in a single-story, 2880
square foot, 14 foot high plaster-finished, galble-roofed building, at the northwest corner
of California Avenue and "C"Street. This building will house two classrooms, adult &
children's toilets, a warming kitchen and offices. Phase 1 also includes the
development of an outdoor play area next to the Children's Center containing
approximately 4,500 square feet, an off-street parking lot for 17 vehicles adjacent to "C"
Street along the east side of the building, and parking lot and perimeter landscape
treatments.
Phase 2.
a. Community Recreation&Health Servipes Building(Building B)on APNs 478-081-
39T and 478-081-40T. This building will be a 18,500 square feet, type VN sprinkled
single-story, masonry and plaster-finished building, approximately 24 feet high,
situated along the south side of California Avenue east of Elm Avenue. This
building will house a full gymnasium with natural lighting, locker facilities, toilets, a
Exhibit B
Page B-1
community and recreation room, offices and a health facility. This building will
provide recreational facilities to the community as well as a health clinic where
preventative health services can be administered. Also to be developed is a 30,000
square-foot playfield with a soccer field and play courts south of the building, off-
street parking spaces for 33 automobiles along the south side of California Avenue
north of the building, and parking lot and perimeter landscape treatments.
b. Administration 1 Education Building Cgmplex(Building C-1, C-3 thru C-8)on APNs
467-,126-15T, 467-126-16T and 467-142.05T. This complex consists of 7 buildings;
one(Building C-1)will be an 18,000 square feet,type VN sprinklered building, single
story, plaster finish, Probably a combination of flat roofs with parapets(17 Feet high),
and gabled ribbed metal roof at the entrance. This building will house the
administrative offices and career counseling functions of the facility. The other 6
buildings(Buildings C-3 thru C-8)will be single story, 960 square feet each totaling
5,760 square foot, modular type buildings with a metal single sloped roof and plaster
finish, situated south of San Benito Avenue(extended)between the Administrative
Offices/Education Building and the easterly property line of the Project Site. The
complex will feature a courtyard between the Administrative Building and the
classroom, off street parking for 136 cars along the north side of California Avenue
and east of"C"Street, and parking lot and perimeter landscape treatments.
c. Vocational Training Building(Building C-2), northeast of the Administrative Offices
Building, is a 5,000 square foot single story, plaster finish building, with roll-up doors
and bow pitched roof(20 feet tall). The building will be used to provide support
services for the Local Conservation Corps.
Phase 2 will also includes the proposed vacation of the"C"Street and the"C"
Street/Fteeway 99 Alley rights-of-way and inclusion as a part of the Project site.
Exhibit B
Page B-2
r4
_SITE PLAN z
Z
a
a0 F
Ho
I I on I IIFti
j f11
I � 1
I II (n
SAN BENITO STREET - 1 O
PRE-SCHOOL/DAY CARE N
BUILDING
I'
4 I�
m p
m
ii
if
ADM[NISTRATION
i BUILDING
COMMUNITY/RECREATIONAL
r'? BUILDING
EXHIBIT B-1 �
DEVELOPMENT SCHEDULE
Event: Completion By:
Council/Agency Board approves DDA and
authorizes Right of Entry July 27, 2004
Executive Director executes DDA July 28, 2004
Escrow opens on Agency's sale of Project August 4, 2004
Site to Developer
Outside Date for Close of Escrow September 3, 2004
Phase 1-Building A
Submit for CUP April 2, 2004
Grading Drawings/Engineering completed April 9, 2004
Plan Review completed May 25, 2004
CUP Completed May 27, 2004
Grading Contractor selected June 8, 2004
Grading Permit June 11, 2004
Grading/landscape work begins/Right of
Entry exercised July 28, 2004
Grading/landscape work ends August 11, 2004
Building 'A' Drawings ready for Bid June 30, 2004
Building'A' manufacturer selected July 20, 2004
Exhibit C
Page C-1
Flan check, building&permit submittals August 27, 2004
Building A permit obtained October 11, 2004
Begin Construction October 25, 2004
Construction complete March 14, 2005
Punch list items/equipment installed April 15, 2005
Certificate of Occupancy April 22, 2005
Facilities opening June 2005
Phase 2, Building B, C-1 thru C-8:
Select Construction Manager July 2,2004
Drawings/engineering completed September 15, 2004
Plan check, building & permit submittals September 17, 2004
Building permits obtained December 15, 2004
Subcontractor bids completed January 27, 2005
Begin Construction February 17, 2005
Construction complete December 20, 2005
Punch list items/equipment installed January 25, 2006
Certificate of Occupancy January 30, 2006
Facilities opening February 2006
Exhibit C
Page C-2
GRANT DEED
Exhibit D
Recording Requested By:
The Redevelopment Agency
of the City of Fresno
When Recorded,Mail To:
Redevelopment Agency
of the City of Fresno
Attention: Executive Director
2344 Tulare Street, Suite 200
Fresno CA 93721
SPACE ABOVE THIS LINE FOR RECORDER'S USE
PUBLIC AGENCY RECORDING - NO FEES DUE
Government Code Section 6103
GRANT DEED
The REDEVELOPMENT AGENCY OF THE CITY OF FRESNO, a body corporate
and politic of the State of California("Grantor"),acting to carry out the redevelopment plan
for the Southwest Fresno General Neighborhood Renewal Area Project(""Redevelopment
Plan") under the California Community Redevelopment Law (the "Law"), grants to the
Fresno County Economic Opportunities Commission,a nonprofit public benefit corporation,
("Grantee"),all that real property in the County of Fresno, State of California,described as
follows:
(SEE ATTACHED EXHIBIT A,
which by this reference is incorporated herein) (the "Property"), subject to the following:
(a) all matters of record affecting the title and use of the Property including, without
limitation, easements and rights of way, encumbrances, and the Redevelopment Plan,
adopted January 14, 1969, by Fresno City Council Ordinance No. 69-13, recorded in the
Official Records of Fresno County; and all subsequent amendments thereto (collectively
Exhibit D
Page D-1
the "Plan"); (b) the Disposition and Development Agreement ("DDA"), dated and/or
recorded concurrently with this Grant Deed,between Grantorand Grantee for redeveloping
the Property (a copy of the DDA may be viewed in the Office of the City Clerk at 2600
Fresno Street, Fresno, California), (c) all matters affecting the Property, which are
discoverable by inspection or survey, and (d)the following covenants.
1. Covenants. Grantee covenants, as follows,for itself, its successors and assigns,
and all persons claiming under or through it:
1.1 Construction. To construct,on the Property, a neighborhood youth,
community, health, and child care center, outdoor recreational areas, off-street parking,
landscaping, and related improvements, as described in, and within the times set forth in,
the DDA (the "Project").
After Grantee completes the Project as the DDA requires,and Grantee
asks for recordable evidence of the completion, Grantor will fumish Grantee with a
recordable Release of Construction Covenants ('Release"), substantially in the form
attached to the DDA as Exhibit E. Recording the Release in the Official Records of Fresno
County shall be conclusive evidence that the Grantee has satisfied its obligations under
the DDA and this Grant Deed to complete the Project timely. The Release will not be
evidence that Grantee has complied with or satisfied any obligations it has to any holder
of a mortgage, or any insurer of a mortgage, securing money lent to finance the Project,
or any fart of it.
1.2 Indemnification. To comply with all indemnification provisions of the
DDA that, by their nature, are to survive recording of this Deed, and the recording of the
DDA or a memorandum of it.
1.3 Sale or Assignment. The DDA conditions any sale or assignment of
the Property. Until the Grantor records the Release, Grantee shall not do the following
without first obtaining the Grantor's consent: make or attempt to make any total or partial
sale, transfer, conveyance, assignment, or lease, of any part of the Property, or the
improvements constructed on it.
Exhibit D
Page D-2
The purpose of this covenant is to avoid land speculation. The
Grantee:is acquiring the Property,and undertaking the construction and other obligations
under the DDA, for redevelopment purposes and not for land speculation. The
redevelopment objectives of the DDA, and the qualifications of the Grantee are of
particular concern to the community and the Grantor.
1.4 Use. After Grantee completes the Project, Grantee will do the
following: (a)use the Property for community educational, recreational, health screening,
child day care services, and administrative office purposes, and reasonably related
activities,and for no other purpose without the prior written consent of Grantor,and(b)use
the Property in conformity with all laws including, without limitation, local laws and
ordinances, the Plan, and the Law.
1.5 Maintenance. Grantee shall maintain all improvements on the
Property, including facade improvements, in first class condition and repair (and, as to
landscaping, in a healthy condition)and in accordance with approved plans(including any
landscape and signage plans),as amended from time to time. Grantee shall maintain the
Propert V and all Property improvements in accordance with all other applicable laws, rules,
ordinances, orders, and regulations, whether federal, state, county, municipal, or issuing
from other governmental agencies and bodies having or claiming jurisdiction, and their
respective departments,bureaus, and officials. Grantee shall keep the Property free from
all graffiti and any accumulation of debris or waste material. Grantee shall repair and
replace improvements and fixtures as necessary to keep the Property in first class
conditicn. Grantee shall promptly remove all graffiti, and shall replace landscaping with
approved plants and materials as needed to keep the landscaping in first class condition.
Grantor shall provide written notice to Grantee of any breach of this
maintenance covenant. After that,Grantor and Grantee shall promptly confer in good faith
regarding a cure forthe breach. Grantor and Grantee shall agree on the corrective actions
and a performance schedule. If Grantee fails to cure the breach within the agreed time,
Grantor shall notify Grantee in writing of its continuing breach of the covenants. If the
breach continues for 10 days after the written notice, with respect to landscaping, graffiti,
Exhibit D
Page D-3
� 1
debris, waste material, or general maintenance; or, if the breach continues for 30 days
after the written notice with respect to building improvements, then Grantor may enter the
Property and cure the breach to protect, maintain, and preserve the improvements and
landscaped areas on the Property. Grantor's right to enter and cure the breach will be in
addition to any other remedy it may have at law or in equity.
Grantor may lien the Property,or assess the Property,for its costs arising out
its acts in protecting,maintaining,and preserving the Property and improvements including,
without limitation, a 15 percent administrative charge, in the same way that the City may
lien property when it abates public nuisances. The notice and opportunity to cure provided
here shall substitute for the noticing, hearing, and nuisance abatement order used by the
City. Grantee shall promptly pay all such maintenance and preservation costs to Grantor
upon demand. Any such lien by Grantor shall be subordinate to any Security Financing
Interest,(as that term is defined in the ODA),regardless of the date the lien or the Security
Financing Interest is recorded.
1.6 Nondiscrimination. Grantee covenants not to discriminate against
or segregate any person or group of persons because of race, color, creed, religion, sex,
marital status, age, physical or mental disability, national origin, or ancestry in the sale,
lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property; and not
to establish or permit any practice of discrimination or segregation in the selection,location,
number, use, or occupancy of tenants, lessees, subtenants, sublessees or vendees.
All deeds, leases or contracts for the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the Property and Improvements shall first be
submitted to the Grantor for approval. Each deed,lease, or contract shall contain express
provisions in substantially the following form:
In deeds:
"The grantee herein covenants for grantee, grantee's heirs,
executors, administrators, and assigns, and all persons claiming under or
through them, that: (a) there shall be no discrimination against or
segregation of, any person or group of persons because of race, color,
Exhibit D
Page D-4
6rQ-
weed,religion,sex,marital status,age,physical or mental disability,national
origin or ancestry, in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the land herein conveyed,and(b)neither grantee nor
any person claiming under or through grantee, shall establish or permit any
practice of discrimination or segregation in the selection, location, number,
use, or occupancy of tenants, lessees, subtenants, sublessees or vendees
in the land herein conveyed. These covenants shall run with the land."
In leases:
"The lessee covenants for lessee, lessee's heirs, executors,
administrators, successors and assigns, and all persons claiming through
lessee, that: (a) there shall be no discrimination against or segregation of,
any person or group of persons because of race, color, creed, religion, sex,
sexual orientation, age, marital status, national origin or ancestry in the
leasing,subleasing,transferring,use,occupancy,tenure or enjoyment of the
land herein leased,and(b) neitherthe lessee nor any person claiming under
or through lessee,will establish or permit any such practice of discrimination
or segregation in the selection, location, number, use or occupancy of
tenants, lessees, subtenants or vendees in the leased property."
In contracts:
"There shall be no discrimination against or segregation of,any
person or group of persons because of race,color,creed,religion, sex, age,
marital status, national origin or ancestry in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the land. Neither the
transferee nor any person claiming under or through transferee, will
Establish or permit any such practice or practices of discrimination or
:segregation in the selection,location,number, use,or occupancy of tenants,
lessees, subtenants or vendees in the land. These covenants are binding
upon and obligate the contracting party or parties and any subcontracting
party or parties, or other transferees under this instrument."
Exhibit D
Page D-5
13
This subsection 1.6 shall run with the land in perpetuity, binding
Grantee, Grantee's successors and assigns, and any party contracting or subcontracting
with Grantee.
2. Effect and Priority of Covenants. The covenants in this Deed, without regard to
technical classification or designation, legal or otherwise, except as specifically provided,
are covenants running with the land. The covenants in subsections 1.1 and 1.3 shall
terminate when the Release is recorded in the Official Records of Fresno County. The
covenants in subsections 1.4 and 1.5 shall terminate when the Plan terminates. The
covenant in subsection 1.6 shall run in perpetuity. The covenants benefit, and are
enforceable by,the Grantor, its successor and assigns,the City of Fresno, its successors
and assigns, and persons owning or occupying property within the Redevelopment Plan
project area. The covenants are enforceable against the Grantee, its successors and
assigns.
No violation or breach of the covenants, conditions, and restrictions in this Deed
shall impair any Security Financing Interest (as defined in the DDA). However, any
successoror assignee of Grantee shall be bound by the continuing covenants,conditions,
and restrictions whether the successor or assignee acquires title by foreclosure, deed in
lieu of foreclosure, trustee's sale, or otherwise.
3_ Modification of Covenants. Only the Grantor, and its successors and assigns, and
the Grantee and its successors and assigns holding fee title may modify or terminate any
covenant in this Deed. Grantee's successors and assigns do not include a tenant, lessee,
easement holder, licensee, mortgagee, trustee, beneficiary under deed of trust, or any
other person holding less than a fee interest in the Property.
4. Grantor's Reversionary Rights(Power of termination). The Grantor's conveyance
of the Property is conditioned on the Grantee timely commencing and completing the
Project. Therefore,until the Grantor records the Release evidencing Grantee's satisfactory
completion of the Project,the Grantor shall have the power to terminate all right, title, and
interest granted hereunder to Grantee, and Grantee's heirs, successors, and assigns, in
the manner the law provides for exercising the power of termination. The Grantee will
Exhibit D
Page D-6
cooperate with the Grantor in its exercise of the power. The Grantor may exercise its
power, before it records the Release, upon the occurrence of any of the following:
4.1 Grantee does not begin or complete construction of the Project within the
time specified in the Schedule of Performance attached to the DDA; or,
4.2 Grantee abandons or substantially suspends construction of the Project for
30 days after the Grantor gives written notice of the abandonment or
suspension; or,
4.3 Grantee assigns or transfers,or suffers an involuntary transfer of,any rights
or obligations under the DDA, or in the Property, in violation of the
assignment provisions of this Grant Deed.
Grantor may institute any action or proceeding to exercise its rights under this
section including,without limitation,the right to execute and record in the Official Records
of Fresno County a written declaration that it is exercising its power to terminate all right,
title, and interest of Grantee, its successors in interest and assigns, in the Property and to
revest title in Grantor. Grantor's delay in instituting or prosecuting any action or
proceeding, or otherwise asserting its rights under this section, shall not operate as a
waiver. If Grantor waives any specific default by Grantee under this section, the waiver
shall not be a continuing waiver, or a waiver of any other default by Grantee.
Upon the revesting of the title in Grantor, Grantor shall follow the procedures set
forth in the DDA regarding reuse or resale of the Property, and the disbursement of any
sale proo:eeds.
5. DDA controlling. If a conflict exists or arises between the provisions of this Deed
and the DDA, the DDA shall control.
Exhibit D
Page D-7
V
IN WITNESS WHEREOF the parties hereto have signed this Grant Deed the
—day of , 20004.
Grantor and Grantee to sign before a notary public, and notary to attach
acknowledgment.
GRANTEE: GRANTOR:
FRESNO COUNTY ECONOMIC REDEVELOPMENT AGENCY OF
OPPOR"UNITIES COMMISSION, THE CITY OF FRESNO
a nonprofit public benefit corporation,
By: _ — By:
Daniel R. Fitzpatrick
[type name of signatory, and title] Executive Director
Dated:
By:
[type: name of signatory, and title]
Dated:
ATTEST:
REBECCA E. KLISCH
Ex Officio Clerk
By _
APPROVED AS TO FORM:
HILDA CANTO MONTOY
Ex Officio Attorney
By
Sr. Deputy
Attachment:
Exhibit A: Legal Descriptions
Exhibit D
Page D-8
RELEASE OF CONSTRUCTION COVENANTS
Exhibit E
Page E-1
l0�
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
Redevelopment Agency of
the City of Fresno
Attention: City Attorney
2600 Fresno Street, Room 2031
Fresno, California 93721-3602
[SPACE At%QVC TIVS LIRE FOR RECpR4CR'S USE]
This Release of Construction Covenants is recorded at the request and for the benefit
of the Fresno Redevelopment Agency and is exempt from the payment of a recording fee
pursuant to Government Code Section 6103,
REDEVELOPMENT AGENCY OF
THE CITY OF FRESNO
8 y:
Dated:
Exhibit E
Page E-2
Release of Construction Covenants
Recitals:
A. Ely a Disposition and Development/Owner Participation Agreement (the
"Agreement") dated , 200 , between the REDEVELOPMENT
AGENCY OF THE CITY OF FRESNO, a public body, corporate and politic
("Agency"),and FRESNO COUNTY ECONOMIC OPPORTUNITIES COMMISSION.
a non-profit public benefit corporation ("Owner"), Owner agreed to redevelop the
real property legally described in Exhibit"A"hereto(the"Property")according to the
terms and conditions of the Agreement.
B. The Agreement or a memorandum of it was recorded _ 2004, as
Instrument No. _in the Official Records of Fresno County,California.
C. Under the terms of the Agreement,after Owner completes all construction work on
and related to the Property, Owner may ask the Agency to issue and record a
Release of Construction Covenants ("Release").
D. Owner has completed all construction required under the Agreement and has asked
Agency to furnish Owner with a recordable Release.
E. The Agency's issuance of this Release is conclusive evidence that Owner has
complied with the construction terms of the Agreement that pertain to the Property.
I4OW THEREFORE:
-1. Agency certifies that Owner has completed the redevelopment construction
on and related to the Property, and has done so in full compliance with the Agreement.
'? This Release is not evidence of Owner's Compliance with,or satisfaction of,
any obiigation to any mortgage holder, or any mortgage insurer, securing money lent to
financE construction work on the Property, or any part of it. Nothing contained herein
modifies any provision of the Agreement.
Exhibit E
Page E-3
IN WITNESS WHEREOF,Agency has executed this Certificate as of this
day of,.. 200
REDEVELOPMENT AGENCY OF THE
CITY OF FRESNO
By:
Executive Director
The Fresno County Economic Opportunities Commission, a California non-profit
public benefit corporation,the owner of record of the Property, consents to recording this
Release against the Property described herein.
Dated:
Executive Director
THE ABOVE PARTIES ARE TO SIGN THIS INSTRUMENT BEFORE A NOTARY
PUBLIC, AND THE NOTARY IS TO ATTACH THE NOTARY ACKNOWLEDGMENT.
ATTEST: APPROVED AS TO FORM:
REBECCA KLISCH HILDA CANTO MONTOY
Ex Officio Clerk Ex Officio Attorney
Redevelopment Agency of the Redevelopment Agency of the
City of Fresno City of Fresno
By: —
Deputy Assistant/Sr. Deputy
Dated: ._ Dated
Exhibit E
Page E-4
�O
ESTIMATED SOURCES AND USES OF FUNDS (BUDGET)
Exhibit F
ESTIMATED SOURCES AND USES OF FUNDS(BUDGET)
Fresno County Economic Opportunities Commission
Neighborhood Youth Center Exhibit F r
Murray-Hayden Park Bond Proposal,December 15,2003
COST ESTIMATE _ _ _ z T o
z o O O o ; z ry
a o C o Q_o a o a s rn Q V
QO ca �a `V o allo Cr0 IXa c QO Z'=F C O W o W o W IF r
Q N m n Z a T N Z a T N Z a T N Z a 6, Q(n RI
1K L]y Q a' M a n O a O wQ.a d C
CAPITAL IMPROVEMENTS SUIIARE G()ST TOTAL E Q�p E c Q D E < E Q cp E N- j K
FEET PER SF. COST y si O u LL V O LL-i V O ti V O ii a s
ADMINISTRATION/EDUCATION BUILDING
26.180.00 S 99.3296 $ 2,600,450 $ 1,222 000 $ 1.240.910 $ 137.540
VOCATIONAL TRAINING BUILDING
2.500.00 $60,0000 $ 150,000 $ 150.000
PRE-SCHOOL/DAYCARE BUILDING(with recreational
amenities) 2.880.00 ######## $ 378,000 $ 100.000 S 278,000
COMMUNITY/RECREATION&HEALTH SERVICES
BUILDING 18,350.00 $99,8365 S 1,632.000 S 440.000 $ 70.000 $ 1.322.000
SITE WORK
_ $ 400.000 __ $ 56.000 $ 42,001 $ 29.264 $ 272.735
OFF-SITE WORK
$ 125.000 $ 125,000
Subtotal Capital Costs $ 5,485,450
SOFT COSTS(archllecturai and engineering fees;city I
fees;permits;plan check;survee In lessln�) _ _ _ S _ 564.725 $ _ 350.000_ _ __ $ 214,725
TCTALS 49.910.00 S 6,050.175 S 1,S72,000 S 156.000 S 482,001 S 99,264. $ 1,240,910 S 2.500.000
Marco Marti nez-Velasquez
From: Enrique Mendez
Sent: Wednesday, July 31, 2019 9:59 AM
To: Sarah Nunez; Marco Martinez-Velasquez
Subject: RE:Agreement
Attachments: EOC-RDA DDA.pdf
This looks like the recorded DDA.
IN SUCCESSOR AC E N CY TO T H
WREDEVELOPMENT AGENCY
N6=) F T H F f: 1 A F F E S Pu n
Enrique Mendez
Project Manager
848 M Street, 3rd floor(Ingo entrance)
Fresno, California 93721
Direct: 559.621.7603
FAX: 559.498.1870
From: Sarah Nunez
Sent: Tuesday, July 30, 2019 8:21 AM
To: Marco Martinez-Velasquez; Enrique Mendez
Subject: RE: Agreement
It would be great if we could locate a fully executed copy. Thank you both.
From: Marco Martinez-Velasquez
Sent: Tuesday, July 30, 2019 8:19 AM
To: Sarah Nunez; Enrique Mendez
Subject: RE: Agreement
Hmmm. It looks like we would have attested it as well. I'll try to think of other places that it might be in the Clerk's
Office.
From: Sarah Nunez
Sent: Tuesday, July 30, 2019 7:28 AM
To: Enrique Mendez; Marco Martinez-Velasquez
Subject: RE: Agreement
Enrique, what you attached, was what we were able to locate as well, please let us know if you are
successful in your search.
Thanks - Sarah
From: Enrique Mendez
Sent: Monday, July 29, 2019 5:40 PM
To: Marco Martinez-Velasquez; Sarah Nunez
Subject: RE: Agreement
All I found was this pdf but I will try to look some more tomorrow.
1
FIR SUCCESSOR AGENCY TO THE
W� REDEVELOPMENT AGENCY
Enrique Mendez
Project Manager
848 M Street, 3rd floor(Ingo entrance)
Fresno, California 93721
Direct: 559.621.7603
FAX: 559.498.1870
From: Marco Martinez-Velasquez
Sent: Monday, July 29, 2019 4:21 PM
To: Sarah Nunez
Cc: Enrique Mendez
Subject: RE: Agreement
Sarah,
I struck out on this agreement.There's no mention of it on our logs, the RDA files in our office,the regular agreement
files, the agreement destruction lists, or the reels.
I'm cc'ing Enrique. Enrique—do you have this agreement in your files? If so, can you forward to both of us?I'm curious
to see if the Clerk's office attested to it.
Thank you,
Marco
From: Marco Martinez-Velasquez
Sent: Monday, July 29, 2019 2:32 PM
To: Sarah Nunez
Subject: RE: Agreement
Taking a look.
From: Sarah Nunez
Sent: Monday, July 29, 2019 1:49 PM
To: Marco Martinez-Velasquez
Subject: RE: Agreement
Marco, just following-up on this.
From: Marco Martinez-Velasquez
Sent: Tuesday, July 23, 2019 8:32 AM
To: Sarah Nunez
Subject: RE: Agreement
Good morning Sarah—My initial search turned up nothing. It's not logged into our agreements log and the file only goes
back to 2007. I'll have to see if it's in one of the reels or offsite. Please expect a reply later this week. And thank you for
the reference material, that helps a lot.
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From: Sarah Nunez
Sent: Monday, July 22, 2019 3:33 PM
To: Marco Martinez-Velasquez
Subject: Agreement
Hello Marco,
We are looking for a DDA [Disposition and Development Agreement] between the RDA and EOC for
the purchase of the Maxie L. Parks Community Center, are you able to assist us?
I've located Resolution 2004-266 with the DDA however, we'd like to get a signed copy of the DDA, a
copy of the Reso and cover page of the DDA is attached for your convenience.
Thanks - Sarah
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