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AGREEMENT FOR
PURCHASE OPTION AND RIGHT OF ACCESS
("AGREEMENT")
This Agreement is made by and between Cesar Chavez Foundation, a California
non-profit public benefit corporation ("CCF') and the City of Fresno, a munic¡pal
corporat¡on ("C¡ty").
RECITALS
A. City holds fee title to certain real property in the City of Fresno, California,
commonly known as the 5100 block of E. Kings Canyon Road, Fresno, CA
93727, consisting of approximately 5.39 acres, Assessor's Parcel Numbers 472-
021-58T; 472-021-601;472-021-61T, more specifically described in the attached
Exhibit A ("Property").
B. CCF desires an exclusive option to purchase the vacant undeveloped Property
for Nine Hundred and Four Thousand Dollars and 00/100 ($904,000.00). CCF
also wants a right to access the Property during the option term to complete pre-
purchase due diligence.
C. City desires to grant CCF an option to purchase and develop the Property, with a
right to access the Property during the option term.
AGREEMENT
NOW, THEREFORE, City and CCF agree as follows:
Grant of Option. City grants an exclusive right to CCF to purchase and develop
the Property at the price and on the terms set forth in Exhibit B ("Disposition and
Development Ag reement").
Effective Date. The effective date of this Agreement is the date it is signed by
CCF and the City after City Council's approval of this Agreement.
Consideration. For the rights granted by City, CCF will pay City Five Thousand
Dollars ($5,000.00) within thirty (30) days after the City approves this Agreement.
The City Council's approval is a condition precedent to the effectiveness of this
Agreement.
4. Original Term. This option and the right of access shall commence on the
effective date of this Agreement and continue for one (1) year thereafter (the
"Option Period"). CCF shall have a right to extend the Option Period for ninety
(90) days upon providing written notice to the City no less than fifteen (15) days
prior to the expiration of the Option Period.
Application of Consideration to Purchase Price or Retention by City. lf CCF
exercises this option, the consideration paid by CCF to City hereunder will apply
to the purchase price. lf CCF does not exercise this option, City will retain the
consideration for grant of this option.
Exercise of Option. CCF may exercise this option by notification in writing.
Within ten (10) business days after giving the notice, CCF and the City will sign a
Disposition and Development Agreement, substantially in the form of Exhibit "8,"
a copy of which is attached hereto and incorporated by reference herein and will
1.
2.
3.
5
6.
7.
8.
open an escrow with a title company selected by City, subject to approval by City
Council.
Automatic Termination. lf CCF fails to exercise this option within the option
period, this option and CCF's rights will automatically terminate without notice.
Assignment. This Agreement is personal to CCF and there shall be no
assignment of its rights or obligations under this Agreement without the prior
written approval of the City Manager or his designee. Any attempted assignment
by CCF, its successors or assigns, shall be null and void unless approved in
writing by the City Manager of his designee.
Right of Access. City grants to CCF, its agents or assigns, access to the
Property during the original term upon twenty-four (24) hours' prior notice
("Access Notice"). The City herein agrees that CCF will be allowed to provide the
City with Access Notice via facsimile, email, or via telephone. City will allow
access to any paft of the Propefty. CCF's rights of access will be exclusively for
environmental review and inspection of the Property. lf CCF or any of its agents
damage the Property, CCF will repair the Property. CCF will access the Property
in a way that does not interfere with City's use of the Propefty. City shall make
available all documents in City's custody or control concerning any environmental
condition of the Property.
Warranties. City warrants that City has a marketable and insurable fee simple
title to the Property.
11. Risk of Loss. lf any improvement on the Property is damaged or destroyed, the
CCF will not be entitled to any refund of moneys paid. CCF, however, will be
entitled on exercise of this option to offset against the purchase price the
insurance proceeds City collects or has a right to collect for the loss or damage.
12. Miscellaneous Provisions.
12.1 Notice. Unless othenryise provided in this Agreement and except for
Access Notice as set forth above, any notice, tender, or delivery given by either party to
the other may be by personal delivery or by United States mail, postage prepaid.
Notices will be in writing. The notice, tender, or delivery will be deemed communicated
or made as of delivery if personally given, or within twenty-four (24) hours after posting,
if mailed. Mailed notices must be addressed as set forth below, but each party may
change its address by written notice according to this paragraph.
Notice to the City:
City of Fresno
Attn: Renena Smith, Assistant City Manager
2600 Fresno Street
Fresno, CA.93721
9.
10
Notice to GCF:
Cesar Chavez Foundation
Attn: Paul S. Park, Secretary, and General Counsel
P.O. Box 62
297 00 Woodford-Tehachapi Road
Keene, CA 93531
12.2 Time of the Essence. Time is of the essence of this Agreement.
12.3 Exhibits; Entire Agreement. The exhibits referenced in this Agreement as
attached are, by the reference, incorporated into this Agreement. This instrument and
the attached Exhibits A, B and C are the entire agreement between the parties relating
to the option and rights of access. This Agreement supersedes any prior agreements,
promises, negotiations, or representations not expressly set fotth in this Agreement.
Any amendment to this Agreement must be in writing and signed by City and CCF to be
effective.
12.4 Attorney's Fees. lf either party brings any legal action or proceeding
relating to this Agreement, the prevailing party will be entitled to recover from the other
party, in addition to any other relief that may be granted, reasonable attorneys' fees,
costs, and expenses.
12.5 Binding Effect. This Agreement will bind and inure to the benefit of the
parties and their heirs, personal representatives, successors, and assigns.
12.6 Further Assurance. The parties will sign any additional documents and
take any additional steps that may be necessary to carry out the intent and purpose of
this Agreement.
12.7 Memorandum of Option. Following the execution of this Agreement, a
Memorandum of Option to Purchase in substantially the form attached to this
Agreement as Exhibit G shall be recorded with the official records of Fresno County,
California.
12,8 Survival. The terms of this Agreement shall survive the close of escrow of
the Property unless there is a contradiction between the Disposition and Development
Agreement and this Agreement, in which event the Disposition and Development
Agreement shall control.
Ht
ilt
lN WITNESS WHEREOF the City and CCF have signed this Agreement on the
dates and in the year set forth below.
CITY OF FRESNO, a municipal
corporation
Dated: ,2015
ATTEST:
WONNE SPENCE, CMC
City Clerk
By:
Dated: ,2015
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
City fttorney
By:
TRAC
Deputy
Dated: ,2015
Attachments:
Exhibit A - Legal Description
Exhibit B - Disposition and Development Agreement
Exhibit C - Memorandum of Option
. PARVANIAN
EXHIBIT A
Exhibit A
Legal DescriPtion
APN: 472-021-587
Previouslv APN: 472-021 45T (portion)
That real property situated in the City of Fresno, County of Fresno, State of California,
said real property being a portion of Lot 75 of Easterby Rancho, according to the map
thereof recorded in Book 2, at Page ô of Plats, Fresno County Records, said real
property also being a portion of that parcel of land conveyed to !he- City _of Fresno by a
êrant beed recorded August 30, 2007 as Document No. 2007-0163315, Official
Records of Fresno County, hereinafter referred to as "Deeded Parcel", said real
property being more particularly described as follows:
COMMENCING at the northwest corner of Lot 76 of said Easterby Rancho; thence S
89"27'54" E, along the north line of said Lots 75 and 76, a distance of 647.00 feet;
thence S 0"45'49" W, parallel with the west line of said Lot 76, a distance of 29.00 feet
to the northwest corner of said Deeded Parcel, said northwest corner being the TRUE
POINT OF BEGINNING of this description; thence continuing S 0"45'49" W, parallel
with the west line of said Lot 76 and along the west line of said Deeded Parcel, a
distance of 137.00 feet; thence S 89'27'54" E, parallel with and 137.00 feet south of the
north line of said Deeded Parcel, a distance of 288.59 feet to a point on the arc of a
non-tangent curve concave to the south and having a radius of 45.00 feet, a radial to
said point bears N 58'50'16" W; thence easterly, along the arc of said non-tangent
curve, through a central angle of 118"44'43", an arc distance of 93.26 feet; thence
S 89'27'54" E, non-tangent to said curve and parallel with and 137.00 feet south of the
north line of said Deeded Parcel, a distance of 255.47 feet to the east line of said
Deeded Parcel; thence N 0"45'49" E, along said east line and parallelwith the west line
of said Lot 76, a distance of 137.00 feet to the northeast corner of said Deeded Parcel;
thence N 89'27'54" W, along the north line of said Deeded Parcel, a distance of 621.50
feet to the TRUE POINT OF BEGINNING.
Contains an area of 1.93 Acres, more or less.
For the purposes of this description the north line of said Lot 76 is taken to be 30 feet
south of the north line of the Northeast Quarter of Section 7, Township 14 South, Range
21 East, Mount Diablo Base and Meridian, and the west line of said Lot 76 is taken to
be 20 feet east of the west line of said Northeast Quarter.
APN 472-021-607
Previouslv APN 472-021 -59T (portion)
That real property situated in the City of Fresno, County of Fresno, State of California,
said real property being a portion of Lot 75 of Easterby Rancho, according to the map
thereof recoided in Volume 2 of Plats at Page 6, Fresno County Records, said real
property also being a portion of that parcel of land conveyed to the Clty o! Fresno by the
brant beed recoided August 30,2007 as Document No.2007-0163315, Official
Records of Fresno County, hereinafter referred to as "Deeded Parcel", said real
property being more particularly described as follows:
COMMENCING at the Northwest corner of Lot 76 of said Easterby Rancho; thence
South 89"27'54" East, 647.00 feet along the North line of said Lots 75 and 76; thence
South 00o45'49" West, 29.00 feet, parallel with the West line of said Lot 76 to the
Northwest corner of said Deeded Parcel; thence continuing South 00o45'49" West,
137.00 feet, parallel with the West line of said Lot 76 and along the West line of said
Deeded Parcel to the TRUE POINT OF BEGINNING of this description, said point of
beginning also being the Southwest comer of the land described in the Grant Deed
recbrded March 28, 2OOg as Document No. 2008-0046264, Official Records of Fresno
County; thence Easterly along the Southerly boundary of the land described in said
Document No. 2008-0046264 the following two courses 1) South 89'27'54" East,
288.59 feet along a line 137.00 feet South of and parallel with the NoÉh line of said
Deeded Parcel tã ttre beginning of a non-tangent curue concave to the Southeast
having a radius of 45.00 feet and to which beginning a radial lines bears North 58'50'
16" \A/est; thence 2) Northeasterly, 46.21feet along said curve through a central angle
of SB'4g'58"; thence South 00o45'49" West, 269.40 feet on a non-tangent line to last
.said curve and parallel with the West line of said Lot 76, to a point on the Southerly
boundary of said Deeded Parcel; thence Westerly along the Southerly boundary of said
Deeded Þarcel the following three courses 1) North 89"24'52" West, 41.95 feet; thence
2) North OO'32'24" East, 40-.00 feet; thence 3) North 89"29'37" West, 284.69 feet to the
Southwest corner of said Deeded Parcel; thence North 00'45'49" East, 207.44 feet,
parallel with the West line of said Lot 76 and along the West line of said Deeded Parcel
to the TRUE POINT OF BEGINNING.
Contains an area of 70,040 square feet, more or less.
For the purpose of this description the North line of said Lots 75 and 76 is taken to be a
line 30.ö0 ieet South of and parallel with the North line of the No¡theast quarter of
Section 7, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, and
the West line of said Lot 76 is taken to be a line 20.00 feet East of and parallel with the
West line of the Northeast quarter of said Section 7'
2010-037A.
PIAT 2763
APN 472-021-6rT
Previouslv APN 472-021 -59T (portion)
That real property situated in the City of Fresno, County of Fresno, State of California,
said real property being a portion of Lot 75 ol Easterby Rancho, according to the map
thereof recorded in Volume 2 of Plats at Page 6, Fresno County Records, said real
property also being a portion of that parcel of land conveyed to the City of Fresno by the
Grant Deed recorded August 30, 20Q7 as Document No. 2007-0163315, Official
Records of Fresno County, hereinafter referred to as "Deeded Parcel", said real
property being more particularly described as follows:
COMMENCING at the Northwest comer of Lot 76 of said Easterby Rancho; thence
South 89'27'54" East, 647.00 feet along the North line of said Lots 75 and 76; thence
South 00o45'49" West, 29.00 feel, parallel with the West line of said Lot 76 to the
Northwest corner of said Deeded Parcel; thence continuing South 00'45'49" West,
137.00 feet, parallel with the West line of said Lot 76 and along the West line of said
Deeded Parcel to the TRUE POINT OF BEGINNING of this description, said point of
beginning also being the Southwest corner of the land described in the Grant Deed
recorded March 28,2008 as Document No. 2008-0046264, Official Records of Fresno
County; thence Easterly along the Southerly boundary of the land described in said
Document No. 2008-0046264 the following three courses 1) South 89'27'54" East,
288.59 feet along a line 137.00 feet South of and parallel with the North line of said
Deeded Parcel to the beginning of a non-tangent curve concave to the South having a
radius of 45.00 feet and to which beginning a radial lines bears North 58"50' 16" West;
thence 2) Northeasterly and Southeasterly, 93.26 feet along said curve through a
central angle of 118"44 '43" to a point on a line 137.00 feet South of and parallel with
the North line of said Deeded Parcel; thence 3) South 89"27'54" East, 255.47 feet on a
non-tangent line and along last said parallel line to a point on the East line of said
Deeded Parcel; thence South 00'45'49" West, 298.20 feet, parallel with the West line of
said Lot 76 and along the East line of said Deeded Parcel to the Southeast corner of
said Deeded Parcel; thence Westerly along the Southerly boundary of said Deeded
Parcel the following five courses 1) North 89"28' 15" West, 142.15 feet; thence 2) North
00"31'45" East, 50.75 feet; thence 3) North 89"24'52" West, 194.29 feet; thence 4)
North 00"32'24" East, 40.00 feet; thence 5) North 89"29'37" West, 284.69 feet to the
Southwest corner of said Deeded Parcel; thence North 00"45'49" East, 207.44 feet
parallel with the West line of said Lot 76 and along the West line of said Deeded Parcel
to the TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM all that portion of the above described real property more
particularly described as follows:
COMMENCING at the Northwest corner of Lot 76 of said Easterby Rancho; thence
South 89'27'54" East, 647.00 feet along the Nofth line of said Lots 75 and 76; thence
South 00'45'49" West, 29.00 feet, parallel with the West line of said Lot 76 to the
Northwest corner of said Deeded Parcel; thence continuing South 00'45'49" West,
137.00 feet, parallel with the West line of said Lot 76 and along the West line of said
Deeded Parcel to the TRUE POINT OF BEGINNING of this description, said point of
beginning also being the Southwest comer of the land described in the Grant Deed
recorded March 28,2008 as Document No, 2008-0046264, Ofiicial Records of Fresno
County; thence Easterly along the Southerly boundary of the land described in said
Document No. 2008-0046264 the following two Gourses 1) South 89'27'54" East,
288.59 feet along á l¡ne 137.00 feet South of and parallel with the North line of said
Deeded Parcel to the beginning of a non-tangent curve concave to the Southeast
having a radius of 45.00 feet and to which beginning a radial lines bears North 58"50'
16" West; thence 2) Northeasterly, 46.21feet along said curve through a central angle
of 58"49'58"; thence South 00'45'49" West, 269.40 feet on a non-tangent line to last
said curve and parallel with the West line of said Lot 76, to a point on the Southerly
boundary of said Deeded Parcel; thence Westerly along the Southerly boundary of said
Deeded Parcel the following three courses 1) North 89"24'52" West, 41.95 feet; thence
2) North 00"32'24" East, 40,00 feet; thence 3) Notth 89"29'37" West, 284.69 feet to the
Southwest corner of said Deeded Parcel; thence North 00'45'49" East, 207.44 feet,
parallel with the West line of said Lot 76 and along the West line of said Deeded Parcel
to the TRUE POINT OF BEGINNING.
Contains an area o180,752 square feet, more or less.
For the purpose of this description the North line of said Lots 75 and 76 is taken to be a
line 30.00 feet South of and parallel with the North line of the Northeast quarter of
Section 7, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, and
the West line of said Lot 76 is taken to be a line 20.00 feet East of and parallel with the
West line of the Northeast quarter of said Section 7.
TNP:nd (67087nd/tnp)
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EXHIBIT B
EXHIBIT B
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Fresno
2600 Fresno Street
Fresno, CA 93721
Attention: City Manager
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Agreement is recorded at the request and for the benefit of the City of
Fresno and is exempt from the payment of a recording fee pursuant to Government
Code Section 6103.
CITY OF FRESNO, a municipal corporation
Bruce Rudd
City Manager
Dated:
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between
THE CITY OF FRESNO
a municipal corporation
and
CESAR CHAVEZ FOUNDATION
a non-profit public benefit corporation
Kings Canyon Senior APartments
5100 block of E. Kings CanYon Road
(APNs: 472-021-58T, 60T, 61T)
Fresno, California 93727
By:
ATTACHMENTS
Exhibit A Site Map
Exhíbit A-1 Legal Description
Exhibit B Scope of Development and Basic Design
Exhibit C Performance Schedule
Exhibit D Certificate of Completion
Exhibit E Grant Deed
Exhibit F Escrow Instructions
DISPOSITION AND DEVELOPMENT AGREEMENT
This Disposition and Development Agreement ("DDA" or "Agreemenf') is
entered into as of the day of ("Effective Date"),
between CITY OF FRESNO, a municipal corporation ("Gity") and CESAR CHAVEZ
FOUNDATION, a California Nonprofit Public Benefit Corporation (the "Developer").
RECITALS
The parties enter this Agreement based on the following facts, understandings,
and intentions:
A. The City currently owns real property located at the 5100 block of E. Kings
Canyon Road, Fresno, Californía, more particularly described in Exhibits'.A" (Site Map)
and "4.1," (legal description) attached (the "Property").
B. Developer proposes to purchase the Property from City at fair market
value and develop it privately to serve as a residential development for low-income
residents consisting of 89 multi-family units and 46 units for senior households as set
fofth in the Scope of Development, attached as Exhibit "B" (hereinafter "the Project").
C. Developer agrees to undertake improvements in accordance with the
Performance Schedule described in Exhibit "C" attached hereto and incorporated herein
(the "Performance Schedule").
D. Developer intends to finance the purchase of the Property and
construction of the Project with financing, in part, from Low lncome Housing Tax Credit
(LIHTC) equity investors or other available public and private mortgage/debt financing
(collectively "Tax Credit Financing").
E. The City and the Developer intend that Developer's consummation of the
Developer's approval of an independent appraisal as to the fair market value of the
Property, acquisition of the Property and the Closing of Escrow (defined below), shall be
subject to the Developer's receipt of an award of LIHTC from the State of California's
Tax Credit Allocation Committee ('CTCAC"), and Developer's receipt of adequate equity
and mortgage/debt financing from one or more investors and lenders ("Lenders") so as
to construct the Project.
F. Developer agrees to commission the completion on the preparation of any
required environmental assessment under the National Environmental Policy Act
('NEPA") and California Environmental Quality Act ('GEQA") for the Project. The CEQA
findings shall be adopted prior to the execution of this Agreement
NOW, THEREFORE, in consíderation of the mutual covenants and promises of
the parties herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
ln consideration of the mutual promises and covenants and upon the terms and
conditions set forth in this Agreement, the parties agree as follows:
1. Definitions. Besides definitions contained elsewhere in this Agreement,
the following definitions will govern the construction, meaning, application, and
interpretation of the defined terms, as used in this Agreement.
1.1 ADA. "ADA" means the Americans with Disabilities Act of 1990.
1.2 Agreement. 'Agreement" means this Disposition and Development
Agreement between City and Developer.
1.3 Certificate of Completion. "Certificate of Completion" means that
Certificate issued in the form aüached as Exhibit "D" to Developer by City
evidencing completion of the Project.
1.4 City. "City" means the City of Fresno, a municipal corporation,
having its offices at 2600 Fresno Street, Fresno, California 9372'1-3605, and
operating through its Council and its various departments.
1.5 Closinq, Close or Close of Escrow. "Closing" "Close" or "Close of
Escrow" mean the closing of the escrow in which the City conveys a fee interest
in the Property to Developer.
1.6 Day. "D"y," means whether or not capitalized, means a calendar
day, unless otherwise stated.
1.7 Default. "Default" means a party's failure to timely perform any
action or covenant required by this Agreement following notice and opportunity to
cure.
1.8 Developer. "Developer" means Cesar Chavez Foundation.
1.9 Effective Date. "Effective Date" means the date that City signs this
Agreement, after Developer signs it.
1.10 Environmental Laws. "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.
1.11 Escrow. "Escrow" means the escrow opened with Escrow Holder
for City to convey a fee interest in the Property to Devefoper.
1.12 Escrow Holder. "Escrow Holder" means FNTG Concord Title
Group Servicing, 2150 John Glenn Drive, Suite 400, Concord, California 94520,
attn.: Jeff Martin, or another title company mutually satisfactory to both parties.
1.13 Hazardous Materials."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, o¡ 25122.7, or listed pursuant to Section 25140 of
the California Health and Safety Code, (b) defined as a "hazardous substance"
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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 biphenyl, (h) listed
under Article I or defined as "hazardous" or "extremely hazardous" under Article
11 of Title 22, California Administrative Code, (i) designated as "hazardous
substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section
1317), O defined as a "hazardous waste" pursuant to Section '1004 of the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.), or
(k) defined as "hazardous substances" pursuant to Section of the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. Section
9601, et seq.); provided, however, hazardous materials shall not include: (1)
construction materials, gardening materials, household products, office supply
products or janitorial supply products customarily used in the construction,
maintenance, rehabilitation, or management of residential rental housing, mixed-
use, or commercial developments or associated buildings or grounds, or typically
used in household activities in a manner typical of other residential, mixed-use or
commercial developments which are comparable to the lmprovements; and (2)
certain substances which may contain chemicals listed by the State of California
pursuant to Health and Safety Code Section 25249, et seq,, which substances
are commonly used by a significant portion of the population living within the
region of the Property, including, but not limited to, alcoholic beverages, aspirin,
tobacco products, NutraSweet, and saccharine.
1.14 lmprovements. "lmprovements" means the development and
construction of the Project on the Property, including, the development and
construction of a separate parcel which shall serve as a common driveway for
the Project.
1.15 Outside Date. "Outside Date" means the last date on which the
parties are willing to Close Escrow with regard to the purchase of the Property
and the commencement of construction with respect to the Project. The Outside
Date shall occur no laterthan one hundred eighty (180) days from the date the
Developer receives an award of Low lncome Housing Tax Credits from CTCAC
and any extensions thereof as defined in Section 2.3.2(8) of this Agreement.
Unless agreed to otherwise in writing, in no event shall the Outside Date extend
beyond October 30, 2016.
1.16 Peformance Schedule. "Performance Schedule" means the
schedule attached as Exhibit "C," setting forth the dates and times by which the
parties must accomplish certain obligations with regard to the Project under this
Agreement. The parties may revise the Schedule from time to time on mutual
written agreement of Developer and City, but any delay or extension of the
completion date is subject to the requirements in this Agreement.
1.17 Proiect. "Project" means the development that Developer is to
complete on the Property and any off-sÍte improvements, as generally described
in the Scope of Development, attached as Exhibit "B." The Project includes, a
separate parcel which shall serve as a common driveway and the associated
landscaping, parking improvements, on-site improvements, and any off-site
improvements that the City may require as a condition to approving the Project.
The Project may be developed and constructed in one or more Phases.
Developer shall develop the Project substantially in the form and manner
presented herein. Any changes, revisions, amendments, or alternations to the
Project (including the number and type of residential units and amount of
commercial space, and configuration or layout of the same) desired by Developer
shall be subject to approval of the City Manager, which approval shall not be
unreasonably withheld. In such event, Developer shall provide City Manager
wíth a written request for a change to the Project accompanied by any supporting
documentation the Developer deems necessary. The City Manager shall
respond to the written request within forty-five (45) days. lf no action is taken by
the City Manager within the forty-five (45) day period, the request shall be
deemed approved.
1.18 Project Completion Date. "Project Completion Date" means the
date that City shall have determined the Project has reached completion in
accordance with the plans and specifications in the Development Schedule, as
evidenced by City's issuance of a Certificate of Completion.
1.19 Propertv. "Property" means the real property described in Exhibits
"4" and 'A-1 .'
1.2O Securitv Financing lnterest. "Security Financing Interest" means a
security interest, which Developer grants in its interest in the Property, before
City issues and records a Release of Construction Covenants, to secure a debt,
the proceeds of which Developer uses to construct the Project.
2. CONVEYANCE OF THE PROPERTY. City will convey the Property
to Developer for the purchase price and on the conditions set fofth herein.
2.1 Purchase Price. Developer will purchase the Property from City for
a purchase price of NINE HUNDRED FOUR THOUSAND DOLLARS AND NO
CENTS ($904,000.00) ("Purchase Price"). Upon the Close of Escrow,
Developer shall pay the Purchase Price, less any earnest money deposit, the
consideration paid by Developer under the Agreement for Purchase Option and
Right of access entered into by the parties hereto, and any other fees paid by
Developer to City under this Agreement.
2.2 Escrow. Within fifteen (15) days after the Effective Date of this
Agreement, City and Developer will open an Escrow with the Escrow Holder, and
deposit a signed copy of this Agreement as their initial joint escrow instructions.
Within five (5) business days of the opening of Escrow, Developer shall deposit
FIVE THOUSAND DOLLARS AND NO CENTS ($5,000.00) (the "Earnest
Money Deposit") with the Title Company. City and Developer will sign escrow
instructions as set forth in Exhibit "F" in addition to any supplemental escrow
instructions, consistent with this Agreement that the Escrow Holder or either
party hereto 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 Holder to act under the
escrow instructions and, after the Escrow Holder accepts the instructions in
writing, it will carry out its duties as Escrow Holder under this Agreement.
2.3 Conditions Precedent to Closinq Escrow. The following are
conditions precedent to City's obligations to close the Escrow and convey the
Property to the Developer and the Developer's obligation to purchase and accept
conveyance of the Property from City. These conditions must be satisfied or
waived by the time stated or, if no time is stated, then by the Outside Date set for
the Closing.
2.3.1 City Conditions. The Closing is subject to the fulfillment
of each of the conditions precedent described below, which are solely for
the benefit of City and which shall be fulfilled consistent with the Exhibit
"C" Performance Schedule, or waived prior to close of escrow:
A. lnsurance. Developer has delivered to City, and City
has approved the form and content of, certificates of insurance for
all insurance that this Agreement requires Developer to obtain and
maintain.
B. Notice of Acc-eptinq Propertv Condition. Developer
has given written notice to City that it has inspected the Property
and accepts the Property in AS lS condition. lf the Developer, after
its inspection of the Property and review of any environmental
repofts, disapproves the Property's environmental or other
condition, and City is either unwilling or unable to cure the condition
to which the Developer objects, then the Developer or city may
terminate this Agreement by written notice to the other party and
without liability for breach or othen¡vise.
C. 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.
2.3.2 Developer conditions. The closing is subject to the
fulfillment or waiver by the Developer of each of the conditions precedent
described below, which are solely for the benefit of the Developer and
which shall be fulfilled consistent with the Exhibit "C" Performance
Schedule, or waived prior to close of escrow'
A. Condition of Title. Developer has approved the
condition of title to the Property pursuant to this paragraph A. City
shall obtain a preliminary title report and transmit a copy to
Developer not later than fifteen (15) days following the Effective
Date. Developer shall notify City in writing within fifteen (15) days
after receipt of a copy of the preliminary title repoil whether it
approves the condition of title. Developer's failure to give such
notice within fifteen (15) days will be deemed approval of the
condltion of title. lf Developer notifies City that it disapproves any
title exception, City may, but is not obligated to, remove that title
exception within fifteen (15) days after receipt of Developer's
written notice. lf City cannot or does not elect to remove any
disapproved title exception or give assurance of removal
satisfactory to Developer within that period, Developer will have ten
(10) business days after the expiration of such fifteen (15) day
period to either give City written notice that Developer elects to
purchase the Property subject to the disapproved title exceptions or
to terminate this Agreement. Developer hereby objects to all title
defects, liens, encumbrances, and mortgages evidencing a
monetary obligation, other than non-defaulted real property taxes
and assessments. The exceptions to title approved by Developer
as provided herein shall be referred to as the "Condition of Title."
The Developer shall have the right to approve or disapprove any
further exceptions reported by the title company after the Developer
has approved the Condition of Title for the Property (which are not
created by the Developer). The City shall not voluntarily create any
new exceptions to title following the date of this Agreement and
prior to the Closing.
B. lnspection. City will convey fee title of the Property to
Developer "AS lS,' with all faults. For a period of one hundred
twenty (120) days after the Effective Date of this Agreement (the
"Due Diligence Period"), Developer or its designated
representatives may conduct tests, investigations and inspections
of the Property in all matters relating to the Property, including, but
not limited to, the physical condition or state of the Property and
improvements thereon, environmental conditions, including Phase I
Environmental Report and the Phase ll Environmental Report
assessments, and all other matters relating to the Property or any
improvements thereon or affecting Developer or the feasibility of
the Property for the Project ("Due Diligence lnvestigation"). lf, for
any reason, Developer is dissatisfied, in Developer's sole and
absolute discretion, with the results of the Due Diligence
lnvestigation, Developer shall provide written notice of disapproval
of the Due Diligence lnvestigation to the CiÇ and Escrow Holder.
Such written notice of disapproval shall be provided prior to the
expiration of the Due Diligence Period, and will constitute
Developer's notice to terminate pursuant to Section 2.3.3, below.
In consideration of Developer's right to conduct the Due Diligence
lnvestigation, including the opportunity to review, inspect and
examine the Property in its sole and absolute discretion, Developer
shall in all circumstances pay to the City ONE HUNDRED
DOLLARS AND NO CENTS ($100.00)' which sum shall be
applicable to the Purchase Price.
Developer has the right to enter the Property to conduct the
Due Diligence lnvestigation on the following conditions: (a) the
tests, investigations and inspections are conducted by the
Developer without cost or expense to City, (b) the tests,
investigations and inspections do not unreasonably interfere with
City's possession or use of the Property, and (c) Developer will
assume responsibility for any loss or liability and for any damage to
the Property to the extent resulting from conducting the tests,
investigations or inspections.
Within ten (10) days from the Effective Date, City shall
deliver to Developer any and all then-existing plans, engineering
reports, surveys, maps, soil or seismic reports, grading plans,
environmental reports and assessments, and other studies, reports,
correspondence or materials concerning the Property or any
improvements thereon (the "Materials"). The Materials may
include, without limitation, the following: (i) copies of any
environmental reports or environmental site assessments or any
other report relating to toxic or hazardous materials or the
environmental condition of the Property or improvements; (ii)
engineering studies, maps and cost reports (sewer, water,
hydrology, storm drain, flood control, FEMA, utilities, traffic and
noise); (¡ii) soils, geology and seismic reports; (iv) covenants,
conditions and restrictions, if any, regarding the Property; (v)
archaeological studies and reports; (vi) to the extent not described
above, grading, erosion control, water, sewer, storm drain, street
improvement, landscape and utility improvement plans; (vii) any
other documents or materials which City possesses or which are
reasonably avaílable to City and which Developer requests in
writing or City determines, in its reasonable judgment, are
significant to the evaluation or use of the Property.
City makes no representation or warranty concerning, and
will have no liability or responsibility for, the Materials or the
information contained therein.
C. Financing. Developer shall be allowed until
October 30, 2016 (the "Financing Contingency Date") to secure
an award of Low lncome Housing Tax Credits from CTCAC
("CTCAC Award"), and other such necessary financíng from one or
more Lenders in an amount sufficient for the acquisition of the
Property, development, and construction of the Project (the
"Financing Gontingency Period"). ln the event that Developer
has not received notice of a CTCAC Award by October 30, 2016,
City, in its sole and good-faith discretion, shall have a right to
terminate this Agreement, wherein Developer and City shall be
released from any and all obligations under this Agreement.
D. Zoninq. Developer shall have one hundred eighty
(180) days from the Effective Date of this Agreement (the "Zoning
. Gontingency Date") to apply and secure all appropriate zoning and
land-use entitlement approvals from the City ("Entitlements") for
the purpose of utilizing the Property as a residential, multifamily
development. ln the event that Developer is unable to secure such
Entitlements within the initialZoning Contingency Date, for reasons
beyond Developer's control, City agrees to extend the Zoning
Contingency Date for an additional sixty (60) day period upon
written notice by Developer to City seventy-two (72) hours prior to
the expiration of the Zoning Contingency Date. lf Developer is still
unable to secure the Entitlements after the expiration of such
extension, the Developer shall have a right to cancel this
Agreement and receive a refund of its Earnest Money Deposit.
E. No Default. City shall not be in default of any
provision of this Agreement and all representations and warranties
of City contained herein are true and correct in all material aspects.
F. No Litiqation. There shall be no litigation pending with
respect to this Agreement, any land use, zoning, development or
building permits or entitlements for the development contemplated
by this Agreement or encumbering title to the Property, the
outcome of which could materially interfere with the development of
the Property as set forth herein.
2.3.3 Termination for Failure of Condition. ln the event there is
a failure of one or more conditions described in Section 2.3.1 or 2.3.2that
are not waived, the party for whose benefit the condition is established
may terminate this Agreement by written notice to the other party prior to
the Closing, in which event this Agreement shall terminate and no party
shall have any further rights or liability to the other under this Agreement.
2.4 Escrow and Title Costs. Developer shall deposit the Earnest
Money as set forth in Section 2.2. Thereafter, the Developer and City shall each
pay fifty percent (50%) of escrow fees, recording fees, and documentary stamp
taxes, if any, to convey the Property to Developer. City shall pay the portion of
the premium for a CLTA starldard owner's policy of title insurance with coverage
not exceeding the Purchase Price, insuring the title to the Property as described
herein. The Developer shall pay the portion of the premium for a CLTA extended
owner's policy of title insurance or any special endorsements requíred by
Developer. Any other costs associated with the Escrow shall be paid by City or
the Developer according to the custom and practice in Fresno County, as
declared by the Escrow Holder.
2.5 Prorations. The Escrow Holder will prorate all ad valorem taxes
and assessments, if any, as of the Closing, between City and the Developer. lf
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 Holder will adjust the proration, if necessary,
within thirty (30) days after the actual taxes and assessments are available.
Developer will be solely responsible for ad valorem taxes or assessments on the
Propeñy, or any taxes on this Agreement or any rights hereunder, which may be
levied, assessed or imposed for any period after the Closing.
2.6 Form of Deed. City will convey the Property to the Developer by a
Grant Deed, substantially in the form attached hereto as Exhibit "E." The
conveyance and Developer's title will be subject to all conditions, covenants,
restrictions and requirements set forth in this Agreement, and the Grant Deed.
2.7 Nonmerqer. Prior to the issuance of a Gertificate of Completion,
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.
2.8 Possession. City will deliver exclusive possession of the Property
to Developer at or immediately following the Closing.
2.9 Sale "AS lS" - No Warranties. City will convey the Property "AS lS"
with all faults, including, without limitation, the conditions disclosed in any toxic
repofts 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, and 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.
2.10 Close of Escrow. Escrow will close within thirty (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," untess the parties mutually
agree to extend the time for Closing. Should Developer determine that additional
time is necessary to Close, Developer may request a maximum of two (2) thirty
(30) day extensions periods upon issuance of written notice to City no later than
seventy-two (72) hours prior to the initial closing date or to the expiration date of
any extension thereof and upon depositing with the Title Company an additional
FIVE THOUSAND DOLLARS AND No CENTS ($5'000.00), with each such
extension (the "Glosing Extension Fee"). The Closing Extension Fee shall be
applicable to the Purchase Price, released to City, and considered non-
refundable to Developer.
2.11 .Authority of Escrow Holder. The parties authorize the Escrow
Holder to, and the Escrow Holder will do the following:
2.11.1 Title Policv Premium. Pay and charge City and Developer,
respectively, for the title insurance premiums described in Section 2.4 ol
this Agreement.
2.11.2 Pav Fees. Pay and charge the Developer and City equal
50% share of the escrow fees and closing costs, excluding any costs to
correct title exceptions or cure property conditions.
2.11.3 Record Grant Deed and Disburse Funds. Disburse funds
from the Purchase Price, and record and deliver the Grant Deed to the
appropriate party when the conditions precedent to Closing are satisfied or
waived.
2.11.4 Actions to Fulfill Obliqations. Take any other action
necessary to fulfíll its obligations under this Agreement.
2.11.5 FIRPTA, and More. Direct the pafties to deliver any
instrument or to perform any act, necessary to comply with FIRPTA or any
similar state act and regulation promulgated thereunder. City will sign a
Certificate of Non-foreign Status, or a Certification of Compliance with
Real Estate Reporting Requirement of the 1986 Tax Reform Act as the
Escrow Holder may require.
2.'11.6 Closinq 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.
2.11.7 Closinq Statements. Escrow Holder will forward to both
Developer and City 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.
2.11.8 Termination Without Close. lf 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. lf either party makes a written
demand for return of documents or properties, this Agreement will not
terminate until five (5) days after Escrow Holder has delivered copies of
the demand to the other party at the respective addresses shown in this
Agreement. lf the other party objects within the five (5) 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. lf no party demands that the Escrow
terminate, the Escrow Holder will proceed to Closing as soon as possible.
2.12 City's Authoritv to Siqn lnstructions and Documents. The City
Manager or his designee is authorized to execute any supplemental escrow
instructions for City that are not a material change hereto. The City Manager or
his designee may make minor modifications, not constituting a material change,
to this Agreement, Exhibits and the documents referenced herein, to affect the
opening and Close of the Escrow.
2.13 Access Prior to Convevance. Prior to the conveyance of title from
City, representatives of Developer shall have the right of access to the Property
at all reasonable times for the purpose of obtaining data and making surveys and
tests necessary to carry out this Agreement. The Developer shall hold City
harmless for any injury or damages arising out of any activity pursuant to this
Section. The Developer shall have access to all data and information on the
Property available to City, but without warranty or representation by City as to the
completeness, correctness or validity of such data and information. Any
preliminary work, other than work in connection with Developer's Due Diligence
lnvestigation, undertaken on the Property by the Developer prior to conveyance
of title thereto shall be done only after written consent of City, satisfaction of City
imposed conditions including without limitation evidence of reasonably required
insurance coverage(s), all at the sole expense of the Developer. The Developer
shall save and protect City against any claims or liens resulting from such
preliminary work, access or use of the Property. Copies of the data, surveys and
tests obtained or made by the Developer on the Property shall be filed with City.
Any preliminary work by the Developer shall be undertaken only after securing
any necessary permits from the appropriate governmental agencies.
3. PROJECT DEVELOPMENT
3.1 Private Development Project: Revision of Project. Developer will
complete the Project as described in the Scope of Development using
contractors licensed to do business in California. Except as may be expressly
provided herein, Developer shall not begin construction or perform any other
work on the Property until after Closing and subject to the clearance by any
additional funding requirements. This Project Deed may be subordinated to
certain approved financing subject to the following conditions: all financing
proceeds must be used to provide construction or permanent financing,
Developer must demonstrate to the City that subordination of the Deed is
necessary to secure adequate construct or permanent financing to ensure the
viability of the Project, and the subordination must provide the City will adequate
rights to cure any defaults by CCF. Upon a determination by the City Manager
tlrat the conditions in this Section have been satisfied, the City Manager will be
authorized to execute and approve subordination agreements or other
documents as may be reasonably required by the lenders to evidence
subordination to the Project financing without the necessity of any further action
or approval and further provided that the City Attorney approves such documents
as to form.
The parties agree that in the event that Developer shall fail to receive all or any
material portion of the CTCAC Award or other such necessary financing from one
or more Lenders in an amount sufficient for the acquisition of the Property, and
the development and construction of the Project then the Project and Scope of
Development contemplated by this Agreement may be renegotiated and
redefined in a manner consistent with a scaled down Project and Scope of
Development (and the related Performance Schedule) taking into account the
amouni of the íoan funds not received by Developer from necessary Lenders and
the CTCAC Award. Any such change shall be set forth in a written amendment
to this Agreement. lf the parties cannot agree on a revised Project and Scope of
Development within a reasonable period of time not to exceed one hundred
twenty (12O) days undersuch circumstances, the City, in its sole and good-faith
discretion may rescind the purchase and sale of the real property. This
Agreement shall be cancelled and the real property shall be reconveyed to the
Cfty and all funds previously paid by Developer to City or otherwise related to this
Agieement or the Project shall concurrently be refunded to Developer such that
thé parties shall be restored to their original positions prior to the execution of this
Agreement to the greatest extent possible.
3.2 Time for Completion of the Proiect. City will convey the Property to
Developer for construction of the Project, and not for speculation in real estate.
Therefore, the Developer will begin construction of the Project by the date
provided in the Performance Schedule, and will diligently complete the Project
according to the Performance Schedule or by any other date as the parties may
agree in ã written extension signed by the parties and subject to any extension of
time provided for in Section 3.3.
3.3 Extension of Time for Completion. ln addition to the specific
provisions of this Agreement, performance by any party hereunder shall not be
deemed to be in default where delays or defaults are due to war; insurrection;
strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of
the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of
transportation; governmental restrictions or priority; litigation; unusually severe
weatñer; inability to secure necessary labor, materials or tools; delays of any
contractor, subcontractor or supplier; acts of another Party; acts or the failure to
act of any public or governmental agency or entity or any other causes beyond
the control or without the fault of the party claiming an extension of time to
perform. An extension of time for any such cause shall only be for the period of
the enforced delay, which period shall commence to run from the time of the
commencement oi the cause. lf, however, notice by the party claiming such
extension is sent to the other party more than thirty (30) days after the
commencement of the cause, the period shall commence to run only thirty (30)
days prior to the giving of such notice. Times of performance under this
Agreement may als-o be extended in writing by City and the Developer. City
Mãnager, on behalf of City, may grant extension(s) which cumulatively do not
exceeã one hundred eighty (180) days; any additional extension shall require
City Council approval.
9.4 Certificate of Completion. After Developer has satisfactorily
completed the-project according to this Agreement and after the completion of
the Project, Developer shall submit to the City: 1) ceftification in writing to that the
project has been substantially completed in accordance with the plans and scope
of work, approved by the City; 2) a recorded Notice of Completion; 3) a cost-
certiffing iinal budget where the Developer shall identify the actual costs of
construct¡on of the Project. This final cost-certification shall identify costs in line-
item format, consistent with the Project Budget; 4) a request for a recorded
Certification of Completion. Upon a determination by the City that the Developer
is in compliance with all of the Developer's obligations, as specified in this
Agreement, the City shall furnish, within thirty (30) calendar days of a written
request by the Developer, a recordable Certificate of Completion for the Project
in the form attached hereto as EXHIBIT uD'. The City will not unreasonably
withhold or delay furnishing the Certificate of Completion. lf the City fails to
provide the Gertificate of Completion within the specified time, it shall provide the'Developer a written statement indicating in what respects the Developer has
failed to complete the Project in conformance with this Agreement or has
othenuise failed to comply with the terms of this Agreement, and what measures
the Developer will need to take or what standards it will need to meet in order to
obtain the Certificate of Completion. Upon the Developer taking the specified
measures and meeting the specified standards, the Developer will certify to the
CITY in writing of such compliance and the City shall deliver the recordable
Certificate of Completion to the Developer in accordance with the provisions of
this section Conditions to lssuing the Certificate of Completion. The following are
all conditions precedent to City issuing the Certificate of Completion for the
Project, and each submission will be in a form and substance satisfactory to City:
3.4.1 Evidence that all mechanics' liens or material men's liens
and claims recorded against the Property, and the Project lmprovements
that are the subject of the Certificate of Completion have been
unconditíonally and finally released or, if not released, sufficiently bonded
against as required bY law.
3.5 Liens and Stop Notices. lf a claim of lien or bonded stop notice is
recorded against the Property or any Project improvements, the Developer,
within ninety (90) days after that, or within five (5) days after City's demand,
whichever last occurs, will do the following:
3.5.1 PaY or discharge the same; or
3.5.2 Effect the release of it by recording and delivering to City a
surety's release bond in sufficient form and amount, or othenvise; or
3.5.3 Give City other assurance that City, in its sole discretion,
deems satisfactory to protect City from the effect of the lien, claim or
bonded stop notice.
3.6 Annual Proof of lnsurance. Annually, beginning with
commencement of construction of the Project, and continuing until the issuance
of a Certificate of Completion for the Project, Developer shall submit proof of
insurance as required by this Agreement.
3.7 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. Except as to property in public use and subject to the following sentence,
Developer and those tenants/others holding or using the Property under
Developer by lease or otherwise, shall not apply for or take advantage of or
otherw'lse enable any exemption from property/possessory taxes. The Developer
shall not allow a use, transfer or sale of the Property/portion thereof, whether
prior to or following completion of the lmprovements hereunder, to an entity that
is exempt from property/possessory tax and/or which would allow a removal from
the tax roll, absent prior notice to and written consent of City.
3.8 Compliance with Laws. ln performing its obligations hereunder,
Developer shall comply with all applicable laws, regulations, and rules of the
governmental agencies having jurisdiction, including, without limitation,
ãpplicable federal and state labor standards and environmental laws and
regulations. Developer, not City, is responsible for determining applicability of
and compliance with all local, state and federal laws including, without limitation,
the Galifornia Labor Code, Public Contract Code, Public Resources Code, Health
& Safety Code, Government Code, the City Charter, and Fresno Municipal Code.
City makes no representations regarding the applicability of any such laws to this
Agieement, the Project, or the parties' respective rights or obligations hereunder
including, without limitation, payment of prevailing wages, competitive bidding,
subcontiactor listing, or other matters. City shall not be liable or responsible, in
law or equity, to any person for Developer's failure to comply with any such laws,
whether City knew or should have known of the need for Developer to comply, or
whether City failed to notify Developer of the need to comply'
4. INDEMNITY: INSURANCE.
4.1 lndemnity. Developer shall indemnify, hold harmless and defend
the CITY and each of its officers, officials, employees, agents and volunteers
from any and all loss, liability, fines, penalties, forfeitures, costs and damages
(whethei in contract, tort or strict liability, including but not limited to personal
injury, death at any time and property damage) incurred by the CITY, Developer
oi añy other person, and from any and all claims, demands and actions in law or
equity (including attorney's fees and litigation expenses), arising or alleged to
have arisen directly or indirectly out of performance of this Agreement.
Developer's obligations under the preceding sentence shall app¡y regardless of
whether the CITY or any of its officers, officials, employees, agents or volunteers
are passively negligent, but shall not apply to any loss, liability, fines, penalties,
forfeitures, iosts-oi damages caused by the active negligence or by the willful
misconduct of the CITY or any of its officers, officials, employees, agents or
volunteers. This section shall survive termination or expiration of this Agreement
and the potential recordation of the Grant Deeds.
4.1.1 Action Arisinq out of Approval of This AOreement. The
Developer shall indemnify, defend and hold the City and each of their
respective officers, officials, employees, agents, boards and volunteers
harmless from any judicial action filed against the City by any third party
arising out of the City's approval of this Agreement or any permit,
entitlement or other action required to implement this Agreement,
including without limitation approvals under the Law, CEQA or the City's
Municipal Code. The City will promptly notify the Developer of the action.
Within fifteen (15) days after receipt of the notice, the Developer shall take
all steps necessary and appropriate to assume defense of the action. The
City will cooperate with the Developer in the defense of the action (at no
cost to the City). Neither the Developer nor the City will compromise the
defense of such action or permit a default judgment to be taken against
the City without the prior written approval of the other party(ies).
4.1.2 Survival of lndemnification Provisions. Except as
otherwise specifically stated herein, the indemnification provisions in this
subsection and every other indemnification in this Agreement will survive
any termination of this Agreement, will survive any Closing, will survive the
expiration of any covenant herein and will not merge with any other
document evidencing an interest in real property.
4.2 lnsurance. After Closing and prior to the commencement of the
construction and until City issues the Certificate of Completion and records it in
the Official Records of Fresno County, 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
lnsurance Commissioner to do business in the State of California and rated not
less than 'A-Vll' in Best's lnsurance Rating Guide; or (ii) authorized by the City's
Risk Manager. The following policies of insurance are required and shall
maintain limits of liability of not less than those amounts stated below. However,
the insurance limits available to City, its officers, officials, employees, agents and
volunteers as additional insureds, shall be the greater of the minimum limits
specified therein or the full limit of any insurance proceeds to the named insured.
The following policies of insurance are required, and Developer will deliver proof
of these policies before starting construction:
4.2.1 Commercial General Liability lnsurance. Commercial
general liability lnsurance, which shall be at least as broad as the most
current version of lnsurance Services Office (lSO) Commercial General
Liability Coverage Form CG 00 01 and shall ínclude insurance for bodily
injury, property damage, and personal and advertising injury with
coverage for premises and operations (including the use of owned and
non-owned equipment), products and completed operations, contractual
liability (including indemnity obligations under this Agreement), with limits
of liability of not less than the following:$1,000,000 per occurrence for
bodily injury and property damage, $1,000,000 per occurrence for
personal and advertising injury and $2,000,000 aggregate for products
and completed operations, and $2,000,000 general aggregate applying
separately to work performed under the Agreement.
Commercial Automobile Liabilitv lnsurance. Commercial automobile
liability insurance, which shall be at least as broad as the most current
version of lnsurance Services Office (lSO) Business Auto Coverage Form
cA oo 01, and include coverage for all owned, hired, and non-owned
automobiles or other licensed vehicles (Code l-Any Auto) with limits of
liability of not less than $1,000,000 per accident for bodily injury and
property damage.
4.2.2 Workers' Comþensation lnsurance.Workers'
compensation insurance, as required under the California Labor Code.
4.2.3 Employee's Liability. Employee's liability coverage with
minimum limits of liability of not less than $1,000,000 each accident,
g1,000,000 disease policy limit and $1,000,000 disease each employee.
4.2.4 Fire and Extended Coveraqe lnsurance. Fire and
extended coverage insurance for at least the full replacement cost of the
Developer lmprovements on the Property, excluding foundations, footings
and excavations and tenant improvements, fixtures and personal property.
4.2.5 Builders Risk lnsurance, Builders risk (Course of
Construction) insurance, obtained by the Developer or subcontractor in an
amount equal to the completion value of the Project with no coinsurance
penalty provisions. (Only required if the project includes new construction
of a building; or renovation of, or addition to, an existing building.)
Contractor Pollution Liability. Contractor Pollution Liability (Unless waived
in w¡ting by the City's Risk Manager or his/her designee, is required, by
the Developer or the Contractor for all environmental and water
remediation work and for all work transporting fuel. Unless waived in
writing by the City's Risk Manager or his/her designee, the Pollution
Liability is also required for demolition, renovation, HVAC, plumbing or
electrical (including, without limitation, lighting) work on any structure built
prior to the year 1990) insurance with limits of liability of not less than the
following:
$1,000,000 per occurrence or claim
$2,000,000 general aggregate per annual policy period
ln the event the Developer purchases an Umbrella or Excess insurance policy(ies) to
meet the minimum limits of insurance set forth above, this insurance policy(ies) shall
"follow form" and afford no less coverage than the primary insurance policy(ies).
ln the event the Developer involves any lead-based, mold or asbestos environmental
hazard, either the Automobile Liability insurance policy or the Pollution Liability
insurance policy shall be endorsed to include Transportation Pollution Liability insurance
covering materials to be transported by the Developer pursuant to the Agreement.
ln the event the Developer involves any lead-based environmental hazard (e.9., lead-
based paint), the Developer's Pollution Liability insurance policy shall be endorsed to
include coverage for lead based environmental hazards. ln the event the Developer
involves any ãsbestos environmental hazard (e.9., asbestos remediation), the
Developer's Pollution Liability insurance policy shall be endorsed to include coverage
for asbestos environmental hazards. ln the event the Agreement involves any mold
environmental hazard (e,g., mold remediation), the Pollution Liability insurance policy
shall be endorsed to include coverage for mold environmental hazards and "microbial
matter íncluding mold" within the definition of "Pollution" under the policy.
The Developer shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and the Developer shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must
be declared to, and approved by, the City's Risk Manager or his/her designee. At the
option of the City's Risk Manager or his/her designee, either (i) the insurer shall reduce
oi eliminate such deductibles or self-insured retentions as it respects City, its officers,
officials, employees, agents and volunteers; or (ii) the Developer shall provide a
financial guarantee, satisfactory to City's Risk Manager or his/her designee,
guaranteeing payment of losses and related investigations, claim administration and
defense expenses. At no time shall City be responsible for the payment of any
deductibles or self-insured retentions.
All policies of insurance required hereunder shall be endorsed to provide that the
coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except
after thìrty (30) calendar day written notice has been given to City. Upon issuance by
the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in
coverage or in limits, the Developer shall furnish CITY with a new ce¡tificate and
applicabb endorsements for such policy(ies). ln the event any policy is due to expire
duiing the work to be performed for City, the Developer shall provide a new certificate,
and ãpplicable endorsements, evidencing renewal of such policy not less than fifteen
(15) calendar days prior to the expiration date of the expiring policy'
The General Liability and Automobile Liability insurance policies shall be written on an
occurrence form. The Pollution Liability insurance policy shall be written on either an
occurrence form, or a claims-made form. The General Liability, Automobile Liability and
Pollution Liability insurance policies shall name City, its officers, officials, agents,
employees and volunteers as an additional insured. All such policies of insurance shall
be endorsed so the Developer's insurance shall be primary and no contribution shall be
required of City. The coverage shall contain no special limitations on the scope of
protection afforded to City, its officers, officials, employees, agents and volunteers. lf
the Developer maintains higher limits of liability than the minimums shown above, the
City requires and shall be entitled to coverage for the higher limits of liability maintained
Oy itre beveloper. The General Liability insurance policy shall also name the City, its
oÍficers, officials, agents, employees and volunteers as additional insureds for all
ongoing and compieted operations. The Builders Risk (Course of Construction)
ins-urance policy shall be endorsed to name the City as loss payee. Any Workers'
Compensai¡on insurance policy shall contain a waiver of subrogation as to City, its
officers, officials, agents, employees and volunteers.
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The Developer shall furnish City with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements
are to be received and approved by the City's Risk Manager or his/her designee before
work commences. Upon request of City, the Developer shall immediately furnish City
with a complete copy of any insurance policy required under this Agreement, including
all endorsements, with said copy certified by the unden¡vriter to be a true and correct
copy of the original policy. This requirement shall survive expiration or termination of
this Agreement.
Claims-Made Policies - lf any coverage required is written on a claims-made coverage
form:
(i) The retroactive date must be shown, and must be before the effective date
of the commencement of work by the Developer.
(ii) lnsurance must be maintained and evidence of insurance must be
provided for at least five (5) years after completion of the work or termination of
the Agreement, whichever first occurs.
(i¡i) lf coverage is canceled or non-renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the effective date of the
Agreemeqt, or work commencement date, the Developer must purchase
extended reporting period coverage for a minimum of five (5) years after
completion of the work or termination of the Agreement, whichever first occurs.
(iv) A copy of the claims reporting requirements must be submitted to City for
review.
(v) These requirements shall survive expiration or termination of the
Agreement-
lf at any time during the life of the Agreement or any extension, the Developer, its
contractor, or any of its subcontractors fail to maintain any required insurance in full
force and effect, all work under this Agreement shall be discontinued immediately, and
all payments due or that become due to the Developer shall be withheld until notice is
received by City that the required ínsurance has been restored to full force and effect
and that the premiums therefore have been paid for a period satisfactory to City. Any
failure to maintain the required insurance shall be sufficient cause for City to terminate
the Agreement. No action taken by City hereunder shall in any way relieve the
Developer of its responsibilities under the Agreement. The phrase "fail to maintain any
required insurance" shall include, without limitation, notification received by City that an
insurer has commenced proceedings, or has had proceedings commenced against it,
indicating that the insurer is insolvent.
The fact that insurance is obtained by the Developer shall not be deemed to release or
diminish the liability of the Developer, including, without limitation, liability under the
indemnity provisions of the Agreement. The duty to indemnify the City shall apply to all
claims and liability regardless of whether any insurance policies are applicable. The
policy limits do not act as a limitation upon the amount of indemnification to be provided
by th-e Developer. Approval or purchase of any insurance contracts or policies shall in
no way rel¡eve from liability nor limit the liability of the Developer, its principals, officers,
agenté, employees, persons under the supervision of the Developer, vendors, suppliers,
¡n-vitees, consultants, sub-consultants, subcontractors, or anyone employed directly or
indirectly by any of them.
ln the event of a partial or total destruction by the perils insured against of any or all of
the work and/or materials herein provided for at any time prior to the final completion of
the Agreement and the final acceptance by the City of the work or materials to be
performed or supplied thereunder, the Developer shall promptly reconstruct, repair,
ieplace, or restore allwork or materials so destroyed or injured at Nsiher sole cost and
expense. Nothing herein provided for shall in any way excuse the Developer or his/her
insurance company from the obligation of furnishing all the required materials and
completing the work in full compliance with the terms of the Agreement.
lf the Developer should subcontract all or any pottion of the services to be performed
under the Agreement, the Developer shall require each subcontractor to provide
insurance protection in favor of City, its officers, officials, employees, agents and
volunteers in accordance with the terms of each of the preceding paragraphs, except
that the subcontractors' certificates and endorsements shall be on file with the
Developer and the City prior to the commencement of any work by the subcontractor.
A. The above described policies of insurance shall be endorsed to
provide an unrestricted thirty (30) day written notice in favor of the City, of policy
ðancellation, change or reduction of coverage. In the event any policy is due to expire
during the term of this Agreement, a new certificate evidencing renewal of such policy
shall be provided not less than fifteen (15) days prior to the expiration date of the
expiring policy(ies). Upon issuance by the insurer, broker, or agent of a notice of
cancellation, change or reduction in coverage, Developer or its contractors, as the case
may be, shall file with the City a certified copy of the new or renewal policy and
certificates for such policy.
B. Developer shall furnish the City with the certificate(s) and
applicable endorsements for ALL required insurance prior to the City's execution of this
Agreement. Developer shall furnish the City with copies of the actual policies upon the
request of the City at any time during the life of the Agreement or any extension.
At all times hereunder Developer shall maintain the required insurance in full force and
effect.
4.2.6 lnsurance for Project Design work. Developer shall
maintain for its Project design work, or if Developer subcontracts any of
the Project design work 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.
lf claims made forms are used for any Professional Liability
Coverage, either (i) the policy shall be endorsed to provide not less than a
five (5) year discovery period, or (ii) the coverage shall be maintained for a
minimum of five (5) years after the Release of Construction Covenants is
recorded. The requirements of this section relating to such coverage shall
survive termination or expiration of this Agreement'
4.2.7 Bond Obligations. The Developer or its General Contractor
shall obtain, pay for and deliver good and sufficient payment and
performance bonds along with a Primary Obligee, Co-Obligee or Multiple
Obligee Rider in a form acceptable to the City from a corporate surety,
admitted by the California Insurance Commissioner to do business in the
State of California and Treasury-listed, in a form satisfactory to the City
and naming the City as Obligee.
A. The "Faithful Performance Bond" shall be at least
equal to 100% of the Developer's estimated construction costs as
reflected in the Developer'S pro forma budget, attached hereto as
EXHIBIT "C", to the guarantee faithful performance of the Project,
within the time prescribed, in a manner satisfactory to the CITY,
consistent with this Agreement, and that all material and
workmanship will be free from original or developed defects-
B. The "Payment Bond" shall be at least equal to 100%
of construction costs approved by the CITY to satisfy claims of
material supplies and of mechanics and laborers employed for this
Project. The bond shall be maintained by DEVELOPER in fullforce
and effect until the Project is completed and until all claims for
materials and labor are paid and as required by the applicable
provisions of Chapter 7, Title 15, Part 4, Division 3 of the California
Civil Code.
C. The "Material and Labor Bond" shall be at least equal
to 100% of the DEVELOPER's estimated construction costs as
reflected in the DEVELOPER's pro forma budget to satisfy claims
of material supplies and of mechanics and laborers employed for
this Project. The bond shall be maintained by the Developer in full
force and effect until the Project is completed, and until all claims
for materials and labor are paid, released, or time barred, and shall
otherwise comply with any applicable provision of the California
Code.
D. ln lieu of the bonds required above, the City, in its
sole discretion, may accept from the Developer an lrrevocable
Standby Letter of Credit issued with the City named as the sole
beneficiary in the amounts(s) of the bonds requ¡red above. The
standby Letter of credit is to be issued by a bank, and in the form,
acceptáble to the City. This lrrevocable Standby Letter of Credit
shall be maintained by the Developer in full force and effect until
the City is provided with a recorded Notice of Completion for the
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construction of the Project and shall be subject to and governed by
the laws of the State of California.
5. SECURITY FINANCING INTERESTS AND RIGHTS OF HOLDERS.
5.1
Thereon and Assiqnment of Aqreement. After conveyance of title and prior to the
issuance by City of a Certificate of Completion for the Project, the Developer
shall not, except aS expressly permitted by this Agreement, sell, transfer, convey,
assign, or lease the whole or any part of the Propefty or the buildings or
improvements thereon without the príor written approval of City. This prohibition
shall not be deemed to prevent the granting of easements or permits to facilitate
the development of the Property or to prohibit or restrict the leasing of any part or
parts of a building or structure when said improvements are completed.
5.1.1 Permitted Transfers. Notwithstanding the foregoing, the
following events ("Permitted Transfers") shall not be deemed a transfer
for the purposes of requiring City's consent:
A. Creation of Security Financing lnterests;
B. A sale, conveyance, or transfer of the Property at
foreclosure (or a deed in lieu of foreclosure) resulting from a
Security Financing lnterest;
C. The conveyance or dedication of parts of the Property
to the City or the grant of easements or permits solely to facilitate
the development of the Property before the Certificate of
Completion is recorded;
D. Sale or rental of Project units/space in accordance
with this Agreement; or
E. Sale or assignment to an entity such as a California
limited partnership or limited liability company managed and or
controlled by or in common control with Developer. Developer shall
submit all sale or assignment documents to the City for review and
approval. City's approval shall not be unreasonably withheld.
5.2 Approval or Consent of Citv. When a request for transfer or
assignment is submiüed to City for consideration, approvalwill be conditioned on
the following:
5.2.1 Financial Strenqth and Business Experience. Except as
provided in Section 5.1 .I E above, the proposed transferee will
demonstrate to City's reasonable 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, or portion thereof, competently'
5.2.2 Assumption Aqreement. Any transferee, by recordable
instrument acceptable to City, shall expressly assume all the unfulfilled or
ongo¡ng 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 or applicable portion thereof.
5.2.3 Transfer Documents. The Developer or its successors
shall submit all documents, proposed to effect any transfer or assignment,
to City for review and approval. Such approval shall not be unreasonably
withheld.
5.2.4 Other Information. Developer or its successors shall
deliver all information to City that City may reasonably request to enable it
to evaluate the proposed transfer or assignment. City shall approve,
conditionally approve, or disapprove a request for assignment within
fifteen (15) days after receiving the request and all supporting
documentation.
5.2.5 Developer's Release. City's approval of any transfer,
assignment, or sale will not relieve the Developer or any successor from
any unfulfilled or ongoing obligations of Developer under this Agreement
with respect to any portion of the Property not transferred. The provisions
of this subsection are intended to discourage land speculation, and these
provisions shall be liberally interpreted to accomplish that end.
5.3 Securitv Financinq: Riqhts of Holders.
5.3.1 No Encumbrances Except Mortqaqes, Deeds of Trust,
Sales and Lease-Back or Other Financinq for Development.
Notwithstanding Section 5.1 of this Agreement, mortgages, deeds of trust,
sales and leases-back, restrictive use covenants and land use regulatory
agreements, or any other form of conveyance required for any reasonable
method of financing are permitted before issuance of a Certificate of
Completion but only for the purpose of securing loans of funds to be used
for financing the acquisition of the Property, the construction of
improvements on the Property and any other expenditures necessary and
appropriate to develop the Property under this Agreement. To this end, if
the Developer and the Developer's construction lender provide a written
request to the City Manager for the City to subordinate its interests in this
Agreement to the interests of the construction lender, and the lender
provides a written proposed subordination agreement, then the City
Manager, or his designee, shall consider and approve the subordination
agreement if the following conditions are met: (1) the lender states in
writing a necessity for the requested subordination; (2) the terms of the
requested subordination are commercially reasonable under the
circumstances; (3) the Developer provides to the City Manager a
statement of all material terms of the sources of equity and loans for
construction of the project and that information demonstrates continued
financial viability of the project through completion of construction; (4) the
funds disbursed from each construction loan shall be used only for costs
and charges assoc¡ated with the loan and construction of the
lmprovements; (5) the interest on each construct¡on loan shall be at a
reasonable rate based on all the facts and circumstances; (6) Developer
shall provide City with evidence of Developer's ability to satisfy any equity
requirements of each construction loan; and (7) the City Attorney
approves the subordination as to form. Any requested subordination shall
deemed approved by the City Manager if the above condit¡ons have been
met and the City Manager or his designee has not approved or rejected
the terms of the subordination within thirty (30) days of the conditions
having been met. The Developer shall promptly notify City of any
mortgãge, deed of trust, sale and lease-back or other financing
conveyance, encumbrance or lien that has been created or attached
thereto pr¡or to completion of the construction of the improvements on the
Properly whether by voluntary act of the Developer or otherwise. The
words ';mortgage" and "deed Of trust," as uSed herein, include all Other
appropriate modes of financing real estate acquisition, construction and
land development.
5.3.2 Holder Not obliqated To construct lmprovements. The
holder of any mortgage, deed of trust or other security interest authorized
by this Agreement shall in no way be obligated by the provisions of this
Agreement to construct or complete the improvements or to guarantee
such construction or completion, nor shall any covenant or any other
provision in the grant deed for the Property be construed so to obligate
such holder. Nothing in this Agreement shall be deemed to construe,
permit or authorize any such holder to devote the Property to any uses or
to construct any improvements thereon other than those uses or
improvements provided for or authorized by this Agreement'
5.3.3 Notice of Default to Mortqaoe. Deed of Trust, or other
Securitv lnterest Holders: Riqht to Cure. Whenever City shall deliver any
notice or demand to the Developer with respect to any breach or default
by the Developer in completion of construction of the lmprovements, City
shall at the same time deliver a copy of such not¡ce or demand to each
holder of record of any mortgage, deed of trust, or other security interest
authorized by this Agreement who has previously made a written request
to City therefor default of the Developer under this Section 5.3.3. Nothing
contaìned in this Agreement shall be deemed to permit or authorize such
holder to undertake or continue the construction or completion of the
lmprovements (beyond the extent necessary to conserve or protect the
lmprovements or construction already made) without first having expressly
assumed the Developer's obligations to City by written agreement
reasonably satisfactory to City. The holder in that event must agree to
complete, in the manner provided in this Agreement, the lmprovements to
which the lien or title of such holder relates and submit evidence
reasonably satisfactory to City that it has the qualifications and financial
responsibllity necessary to perform such obligations. Any such holder
6.
properly complet¡ng such lmprovements shall be entitled, upon written
request made to Gity, to a Certificate of Completion from City.
5.3,4 Failure of Holder to complete lmprovements. ln any
case where, six (6) months after default by the Developer in completion of
construction of lmprovements under this Agreement, the holder of any
mortgage, deed of trust, or other security interest creating a lien or
encumbrance upon the Property has not exercised the option to construct,
or if it has exercised the option and has not proceeded diligently with
construction, City rnay purchase the mortgage, deed of trust, or other
security interest by payment to the holder of the amount of the unpaid
debt, þlus any accrued and unpaid interest. lf the ownership of the
Property has vested in the holder, City, if it so desires, shall be entitled to
a conveyance of the Property from the holder to City upon payment to the
holder of an amount equalto the sum of the following:
A. The unpaid mortgage, deed of trust, or other security
interest debt at the time title became vested in the holder (less all
appropriate credits, including those resulting from collection and
application of rentals and other income received during foreclosure
proceedings);
B. All expenses with respect to foreclosure;
C. The net expenses, if any (exclusive of general
overhéad), incurred by the holder as a direct result of the
subsequent management of the Property;
D. The costs of any authorized improvements made by
such holder; and
E. An amount equivalent to the interest that would have
accrued on the aggregate of such amounts had all such amounts
become part of the mortgage or deed of trust debt and such debt
had continued in existence to the date of payment by City.
5.3.5 Riqht of citv to cure Modoaqe. Deed of Trust or other
Security lnterest Default. ln the event of a default or breach by the
De\reloper on a mortgage, deed of trust or other security interest with
respeci to the Property prior to the completion of the Project, and the
holder has not exercised its option to complete the Project, City may cure
the default prior to completion of any foreclosure. ln any such event, City
shall be entitled to reimbursement from Developer of all costs and
expenses incurred by City in curing the default. City shall also be entitled
to a lien upon the Property to the extent of such costs and disbursements.
Any such lien shall be subject to mortgages, deeds of trust or other
seóurity interests executed for the sole purpose of obtaining funds to
purchase and develop the Property as authorized herein.
REPRESENTATIONS AN D WARRANTI ES.
6,1 DeveloperRepresentationsandWarranties'
6.1.1 Representations and Warranties of Developer.
Developer represents and warrants that:
A. Developer is a California non-profit public benefit
corporation duly formed 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.
B. 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.
C. The person or persons signing this Agreement for
Developer have been duly authorized to execute and deliver this
Agreement and to legally bind Developer to its terms and
conditions.
D. Developer's execution and performance of this
Agreement does not violate any provision of any other agreement
to which Developer is a party.
E.
Agreement,
Developer
Agreement.
F.
to fund the
hereunder.
G. This Agreement is valid, binding, and enforceable
against Developer in accordance with its terms, except as such
enforceability may be limited by principals of public policy and
subject to the laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and rules of law governing
specific performance, injunctive relief or other equitable remedies.
H. Developer has made no contract or arrangement of
any kind the performance of which by the other party thereto would
give rise to a lien on the ProPertY.
6.2 Survival of Representations and Warranties. The parties are
relying upon the above representations and warranties in entering this DDA. The
foregoing representations are and shall be continuing in nature and shall remain
in full force and effect until all obligations under this DDA are met or this DDA is
terminated in a manner provided herein.
7. DEFAULT. REMEDIES AND TERMINATION.
7.1 Default. Failure or delay by either party to perform any term of this
Agreement shall be a default under this Agreement if not cured within the time
set forth herein. Any failure or delay by a party in asserting any right or remedy
will not constitute a waiver, and will not deprive the party of its right to institute
Except as may be specifically set forth in this
no approvals or consents not heretofore obtained by
are necessary to Developer's execution of this
Developer has or will have sufficient funds available
Project and to pay all costs assumed by Developer
and ma¡ntain any action or proceeding necessary to protect or enforce any right
or remedy.
7.2 Leqal 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. City may enforce this
Agreement in any manner available at law or in equity. Except as provided in
Section 8.6 entitled "Attorney's Fees," in no event shall City or its officers, agents,
or employees be liable in damages for any breach or violation of this Agreement,
it being expressly understood and agreed Developer's sole legal remedy for
breach of violation of this Agreement by City shall be a legal action in
mandamus, specific performance or other injunctive or declaratory relief to
enforce the provisions of this Agreement. Such legal action shall be brought in
the Fresno County Courts or the Fresno Division of the Federal District Court for
the Eastern District of California.
7.3 Riqhts 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 any other rights or
remedies available at law or in equity, including, without limitation, specific
performance.
7.4 Notice and Cure Periods. lf either party fails to perform under any
provision of this Agreement including documents incorporated herein, the non-
defaulting party shall serve written notice of the default on the defaulting party,
describing the default, and the actions necessary to cure the default. A
defaulting party will have thirty (30) days from the date of the notice to cure the
breach or failure unless a different time period is provided in this Agreement in
which case the latter shall apply. lf the default is not susceptible to cure within
the thirty (30) days, the defaulting party shall begin to cure the default within the
thirty (30) days and after that diligently prosecute the cure to completion. Failure
of the defaulting party to cure within these times shall entitle the non-defaulting
party to enforce any right or remedy provided in this Agreement, at law, or in
equtty This provision is not intended to 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.
B. GENERAL PROVISIONS.
8.1 Notice. Demands and Communication. All notices, elections,
requests, acceptances, demands, instructions or other communications ("notice"
or ;notices") to be given to any party under this Agreement shall be in writing and
shall be deemed to have been duly given (i) on the date of service if personally
served on the party to whom notice is to be given; (ii) within forty-eight (48) hours
after mailing, if mailed to the party to whom notice is to be given, by first class
To Seller:
Buyer:
With a copy to:
With a copy to:
mail which is either registered or certified, postage prepaid, return receipt
requested; (iii) within twenty-four QÐ hours after being deposited with a
recognized private courier service (e.g., Federal Express), if delivered by a
private courier service to the party to whom notice is to be given, all charges
prepaid; or (iv) when sent, if given by electronic format that provides verification
of successful transmission. All notices shall be properly addressed to the party
receiving notice as follows:
8.2
City of Fresno
Attn: Renena Smith, Assistant City Manager
2600 Fresno Street, Room 2097
Fresno, CA 93721-3600
Telephone: (559) 621-7770
Facsimile: (559) 621-7776
E-mail: Renena.Smith@fresno.gov
Cesar Chavez Foundation
Attn: Paul S. Park, Secretary & General Counsel
P.O. Box 62
297 00 Woodford-TehachaPi Road
Keene, CA 93531
Telephone: (213) 362-0260 Ert.261
Facsimile: (213) 362-0265
E-mail: ppark@chavezfoundation.orq
FNTG Concord Title Group Servicing
Attn: Jeff Martin
2150 John Glenn Drive, Suite #400
Concord, CA 94520
Telephone: (925) 288-8062
Facsimile: (925) 288-6413
E-mail: Jeff. Martin@titleqroup.fntq, com
Alfredo lsmajtovich
Executive Vice President
Housing and Economic Development Fund
Cesar Chavez Foundation
316 W. 2nd Street, Suite 600
Los Angeles, CA 90012
Telephone: (213) 362-0260 Ert.222
Facsimile: (213) 362-0265
E-mail : alfredoi@chavezfoundation.orq
Emilio J. Huerta
Law Office of Emilio J. Huerta
P.O. Box2244
Bakersfield, CA 93303
TelePhone: (661 ) 326-8000
Facsimile: (661) 326-8038
E-mail: eihuerta@huertalaw.orq
A party may change its address by notice
subsection.
according to this
g.3 Conflict of lnterests. No member, official, officer or employee of the
Developeror@directorindirectinrestinthisAgreement,or
shall pårticipate in any decision ielating to this Agreement where such interest or
participation is proninited by law. No officer, employee, or agent of City who
äxerciles any function or reóponsibility concerning the planning and carrying out
of the erojeit, or any other person who exercises any function or responsibility
concerning "ny "rp""t of thiå Agreement or the Project, shall have any personal
financial iñterest, direct or indirect, in this Agreement or the Project'
g.3.1 Developer represents and warrants that it has not paid or
given, and will not pay or give, to any third party any money or other
consideration for oUtaíning this Agreement, other than normal costs of
conducting business and côsts of professional services such as architects,
consultants, engineers and attorneys.
8.g.2 No contractor, subcontractor, mechanic, material man,
laborer, vendor or other person hired or retained by Developer shall be,
nor shall any of them be deemed to be, third-party beneficiaries of this
Agreement, íather each such person shall be deemed to have agreed (a)
tnät tney shall look to Developer as their sole source of recovery if not
paid; an'd (b) except as othen¡vise agreed to. by city and any such person
in writing, if,ãV tây not enter any cìaim or bring any such action.against
City undãr any circúmstances. Eicept as provided by law, or as otherwise
agieed to in wríting between City and any such person, each such person
sñall be deemed iô h"u" waived in writing all right to seek redress from
City under any circumstances whatsoever'
8.4 Nonliabilitv of officials. Employeeq. and Aoents Ng member,
official,orice@fCityshallbepersonallyliabletothe
Developer, or any su"i"tsot in iñterest, for any default or breach by City'
g.5 Counterparts. This Agreement may be executed in counterparts,
and together each executed counterþart shall constitute one Agreement'
g.6 Waiver. A party's waiver of the other's breach of any provision of
this Agreeme-nt shall not cónstitute a continuing waiver or a waiver of any
subse{uent breach of the same or a different provision of this Agreement' No
ór*Èñ of this Agreement may be waived except in a writing signed by all the
grven
parties. Waiver of any one provision shall not be deemed to be a waiver of any
other provision herein.
g] Attornevs' Fees. lf a party initiates or defends litigation or any legal
proceeding regarding the erforcement of this Agreement, the prevailing party in
äuch litigation or proceeding, in addition to any other relief that may be granted,
shall bJ entitled to reasonãble attorneys' fees. Attorneys' fees shall include
attorneys' fees on any appeal. A party entitled to attorneys' fees shall be entitled
to all other reasonáble 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.
g.8 Governing Law. This Agreement shall be interpreted and enforced,
and the rignts anO Outies of the parties under this Agreement (both procedural
and substãntive) shall be determined according to California law'
B.g Further Assurances. Each party will take any further acts and will
sign and Oel¡ver any furtner ¡nstruments required to carry out the intent and
purposes of this Agreement.
B.1O Entire Understandinq of the Parties, The exhibits referenced as
attached are by sucn referànces incorporated into this Agreement. This
Agreement, inclúding exhibits, is the entire understanding and agreement of the
pãrties. All prior ðiscussions, understandings, and written agreements are
superseded by this Agreement. 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.
8.11 Consent. Reasonableness. Unless this Agreement spe.cifically
authorizes a p-any to witfitrold its approval, consent or satisfaction in its sole
discretion, any consent, or approval, or satisfaction to be requested or required of
a party, shall ñot be unreasonably withheld, conditioned or delayed'
8.12 partial lnvalidity. lf any paÉ 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 purposes of the
Pro¡ect and this Agreement.
g.13 Ambiquity. 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
aga¡n-st äny party, but by construing the terms according to their generally
aócepted meaning, considering the objective of the Agreement.
g.14 Number and. Gender. Masculine, feminine or neuter gender terms
and singular or plural nurn¡ers will include others when the context so indicates-
8.15 Headings. All headings are for convenience only, are not a part of
this Agreement, and are not to be used in construing this Agreement.
8.16 Bindinq 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 shalt
be deemed to apply to any Successor, heir, administrator, executor,
representative, or assign of the party who has acquired an interest in compliance
with the terms of this Agreement, or under law.
8.17 Relationship of the Parties. 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 retationship between City 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'
8.18 Nature of the Project. The Project is a private undertaking of the
Developer. After City conveys title or possession of the propeily to Developer,
the Developer shall have exclusive control over the Property, subject to the terms
of this Agreement and all applicable Federal, State and local laws, ordinances,
codes, regulations, standards and policies.
S,19 Time of Essence. Time is of the essence of each term, condition,
and covenant contained in this Agreement.
8.20 Survival of Provisions. Those provisions expressly surviving
expiration or earlier termination, including each indemnification provision, shall
survive the Closing and expiration or earlier termination of this Agreement, and
shall not merge with the Grant Deed or other document evidencing any interest in
real property.
ISIGNATURES APPEAR ON NEXT PAGE]
lN WITNESS WHEREOF, City and Developer have executed this Agreement on
the dates set forth below.
DEVELOPER: GITY:
CESAR CHAVEZ FOUNDATION CITY OF FRESNO,
A California Non-Profit Public A MunicipalCorporation
Benefit Corporation
PAUL S. PARK, Secretary BRUCE RUDD, City Manager
Dated:Dated:
The above persons to execute this agrcement before a Notary Public and attach
the notary acknowledgments.
ATTEST:
WONNE SPENCE, CMC
City Clerk
By
Deputy
APPROVED AS TO FORM:
DOUGI.AS T. SLOAN
City Attorney
By- -TRACY N. PARVANIAN, DePutY
Attachments: Exhibit A
Exhibit A-1
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
TNP:nd (67084nd/tnP) OU26l 1 5
Site Map
Legal Description
Scope of Development and Basic Design
PeÉormance Schedule
Gertificate of Completion
Grant Deed
Escrow Instructions
EXHIB¡T A
SITE MAP
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EXHIBIT A.I
LEGAL DESCRIPTION
APN: 472-021-587
Previouslv APN: 472-021 45T (portion)
That real property situated in the City of Fresno, County of Fresno, State of California,
said real property being a portion of Lot 75 of Easterby Rancho, according to the map
thereof recorded in Book 2, al Page 6 of Plats, Fresno County Records, said real
property also being a portion of that parcel of land conveyed to the City of Fresno by a
Grant Deed recorded August 30, 2007 as Document No. 2007-0163315, Official
Records of Fresno County, hereinafter referred to as "Deeded Parcel", said real
property being more particularly described as follows:
COMMENCING at the northwest corner of Lot 76 of said Easterby Rancho; thence S
89"27'54" E, along the north line of said Lots 75 and 76, a distance of 647.00 feet;
thence S 0'45'49" W, parallel with the west line of said Lot 76, a distance of 29.00 feet
to the northwest corner of said Deeded Parcel, said northwest corner being the TRUE
POINT OF BEGINNING of this description; thence continuing S 0"45'49" W, parallel
with the west line of said Lot 76 and along the west line of said Deeded Parcel, a
distance of 137.00 feet; thence S 89"27'54" E, parallel with and 137.00 feet south of the
north line of said Deeded Parcel, a distance of 288.59 feet to a point on the arc of a
non-tangent curve concave to the south and having a radius of 45.00 feet, a radial to
said point bears N 58'50'16" W; thence easterly, along the arc of said non-tangent
curve, through a central angle of 118'44'43", an arc distance of 93.26 feet; thence
S 89"27'54" E, non-tangent to said curve and parallel with and 137.00 feet south of the
north line of said Deeded Parcel, a distance of 255.47 feet to the east line of said
Deeded Parcel; thence N 0'45'49" E, along said east line and parallel with the west line
of said Lot 76, a distance of 137.00 feet to the northeast corner of said Deeded Parcel;
thence N 89"27'54" W, along the north line of said Deeded Parcel, a distance of 621.50
feet to the TRUE POINT OF BEGINNING.
Contains an area of 1.93 Acres, more or less.
For the purposes of this description the north line of said Lot 76 Ís taken to be 30 feet
south of the north line of the Northeast Quarter of Section 7, Township 14 South, Range
21 East, Mount Diablo Base and Meridian, and the west line of said Lot 76 is taken to
be 20 feet east of the west line of said Northeast Quafter.
APN 472-021-607
Previouslv APN 472-021 -59T (portion)
That real property situated in the City of Fresnò, County of Fresno, State of California,
said real property being a portion of Lot 75 of Easterby Rancho, according to the map
thereof recorded in Volume 2 of Plats at Page 6, Fresno County Records, said real
property also being a portion of that parcel of land conveyed to the City of Fresno by the
Grant Deed recorded August 30, 2007 as Document No. 2007-0163315, Official
Records of Fresno County, hereinafter referred to as "Deeded Parcel", said real
property being more particularly described as follows:
COMMENCING at the Northwest corner of Lot 76 of said Easterby Rancho; thence
South 89"27'54" East, 647.00 feet along the North line of said Lots 75 and 76; thence
South 00"45'49" West, 29.00 feet, parallel with the West line of said Lot 76 to the
Northwest corner of said Deeded Parcel; thence continuing South 00o45'49" West,
137.OO feet, parallel with the West line of said Lot 76 and along the West line of said
Deeded Parcel to the TRUE POINT OF BEGINNING of this description, said point of
beginning also being the Southwest comer of the land described in the Grant Deed
recorded March 28,2008 as Document No. 2008-0046264, Official Records of Fresno
County; thence Easterly along the Southerly boundary of the land described in said
Document No. 2008-0046264 the following two courses 1) South 89o27'54" East,
288.59 feet along a line 137.00 feet South of and parallel with the North line of said
Deeded Parcel to the beginning of a non-tangent curve concave to the Southeast
having a radius of 45.00 feet and to which beginning a radial lines bears North 58"50'
16" West; thence 2) Northeasterly, 46.21feet along said curve through a central angle
of 58"49'58"; thence South 00"45'49" West, 269.40 feet on a non-tangent line to last
said curve and parallel with the West line of said Lot 76, to a point on the Southerly
boundary of said Deeded Parcel; thence Westerly along the Southerly boundary of said
Deeded Parcel the following three courses 1) North 89"24'52" West, 41.95 feet; thence
2) North 00"32'24" East, 40.00 feet; thence 3) North 89"29'37" West, 284.69 feet to the
Southwest corner of said Deeded Parcel; thence North 00"45'49" East, 207.44 fee\
parallel with the West line of said Lot 76 and along the West line of said Deeded Parcel
to the TRUE POINT OF BEGINNING.
Contains an area of 70,040 square feet, more or less.
For the purpose of this description the North line of said Lots 75 and 76 is taken to be a
line 30.00 feet South of and parallel with the North line of the Northeast quarter of
Section 7, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, and
the West line of said Lot 76 is taken to be a líne 20.00 feet East of and parallel with the
West line of the Northeast quarter of said Section 7.
2010-037A.
Pr-AT 2763
APN 472-021-617
Previouslv APN 472-021 -59T (portion)
That real property situated in the City of Fresno, County of Fresno, State of California,
said real property being a portíon of Lot 75 of Easterby Rancho, according to the map
thereof recorded in Volume 2 of Plats at Page 6, Fresno County Records, said real
property also being a portion of that parcel of land conveyed to the City of Fresno by the
Grant Deed recorded August 30, 2007 as Document No. 2007-0163315, Offìcial
Records of Fresno County, hereinafter referred to as "Deeded Parcel", said real
property being more particularly described as follows:
COMMENCING at the Northwest comer of Lot 76 of said Easterby Rancho; thence
South 89"27'54 East, 647.00 feet along the NoÉh line of said Lots 75 and 76; thence
South 00"45'49" West, 29.00 feel, parallel with the West line of said Lot 76 to the
Northwest corner of said Deeded Parcel; thence continuing South 00"45'49" West,
137.00 feet, parallel with the West line of said Lot 76 and along the West line of said
Deeded Parcel to the TRUE POINT OF BEGINNING of this description, said point of
beginning also being the Southwest corner of the land described in the Grant Deed
recorded March 28,2008 as Document No. 2008-0046264, OfÍicial Records of Fresno
County; thence Easterly along the Southerly boundary of the land described in said
Document No. 2008-0046264 the following three courses 1) South 89'27'54" East,
288.59 feet along a line 137.00 feet South of and parallel with the North line of said
Deeded Parcel to the beginning of a non-tangent curve concave to the South having a
radius of 45.00feetand towhich beginníng a radial lines bears North 58'50'16"West;
thence 2) Northeasterly and Southeasterly, 93.26 feet along said curve through a
central angle ol 118"44 '43" to a point on a line 137.00 feet South of and parallel with
the North line of said Deeded Parcel; thence 3) South 89"27'54" East, 255.47 feet on a
non-tangent line and along last said parallel line to a point on the East line of said
Deeded Parcel; thence South 00'45'49" West, 298.20 feet, parallelwith the West line of
said Lot 76 and along the East line of said Deeded Parcel to the Southeast corner of
said Deeded Parcel; thence Westerly along the Southerly boundary of said Deeded
Parcel the following five courses 1) North 89'28' 15" West, 142.15 feet; thence 2) North
00"31'45" East, 50.75 feet; thence 3) North 89"24'52" West, 194.29 feet; thence 4)
North 00"32'24" East, 40.00 feet; thence 5) North 89'29'37" West, 284.69 feet to the
Southwest corner of said Deeded Parcel; thence North 00'45'49" East, 207.44 feet
parallel with the West line of said Lot 76 and along the West line of said Deeded Parcel
to the TRUE POINT OF BEGINNING.
EXCEPT¡NG THEREFROM all that portion of the above described real property more
particularly described as follows:
COMMENCING at the Northwest corner of Lot 76 of said Easterby Rancho; thence
South 89"27'54" East, 647.00 feet along the Noilh line of said Lots 75 and 76; thence
South 00"45'49" West, 29.00 feet, parallel with the West line of said Lot 76 to the
Northwest corner of said Deeded Parcel; thence continuing South 00"45'49" West,
137.00 feet, parallel with the West line of said Lot 76 and along the West line of said
Deeded Parcel to the TRUE POINT OF BEGINNING of this description, said point of
beginning also being the Southwest comer of the land described in the Grant Deed
:
L
l
I
I
I
t.
recorded March 28,2008 as Document No. 2008-0046264, Official Records of Fresno i
County; thence Easterly along the Southerly boundary of the land described in said
Document No. 2008-0046264 the following two courses 1) South 89"27'54" East,
288.59 feet along a line 137.00 feet South of and parallel with the North line of said
Deeded Parcel to the beginning of a non-tangent curve concave to the Southeast
having a radius of 45.00 feet and to which beginning a radial lines bears North 58"50'
16" West; thence 2) Northeasterly, 46.21feet along said curve through a central angle
of 58"49'58"; thence South 00'45'49" West, 269.40 feet on a non-tangent line to last
said curve and parallel with the West line of said Lot 76, to a point on the Southerly
boundary of said Deeded Parcel; thence Westerly along the Southerly boundary of said
Deeded Parcel the following three courses 1) North 89'24'52" West, 41.95 feet; thence
2) North 00"32'24" East, 40.00 feet; thence 3) North 89o29'37" West, 284.69 feet to the
Southwest corner of said Deeded Parcel; thence North 00'45'49" East, 207.44 Íeet,
parallel with the West line of said Lot 76 and along the West line of said Deeded Parcel
to the TRUE POINT OF BEGINNING.
Contains an area of 80,752 square feet, more or less.
For the purpose of this description the North line of said Lots 75 and 76 is taken to be a
line 30.00 feet South of and parallel with the North line of the Northeast quarter of
Section 7, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, and
the West line of said Lot 76 is taken to be a line 20.00 feet East of and parallel with the
West line of the Northeast quarter of said Section 7.
EXHIBIT B
SCOPE OF DEVELOPMENT AND BASIC DESIGN
135 unit low-income housing development of which 89 will be for multi-family residents
and 46 will be for senior households.
EXHIBIT C
PERFORMANCE SCHEDULE
Items To Be Completed Estimated Time for
Performance
Estimated Date of
Award/Allocation
State of California Housing and
Community Development Funding
Application
Fallof 2015
State of California Tax Credit Allocation
Committee Funding Application
March 2016 or October 2016 June 2016
Property Acquisition Closing Outside Closing Date
No later than October 30,
2016
Construction Financing Closing October 2016 Completion of
Construction January
2018
Stabilized Occupancy June 2018
Permanent Loan Conversion to Fixed
Rate Debt Financing
September 2018
EXHIBIT D
CERTIFICATE OF COMPLETION
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Fresno
Attention: City Manager
2600 Fresno Street
Fresno, CA93721
No Fee-Govt. Code Sections 6103-27383
APNs:l I
SPACE ABOVE THIS LINE FOR RECORDER'S USE)
This Release of Gonstruction Covenants and Certificate of Completion is recorded
at the request and for the benefit of the City of Fresno.
A. As agreed in a Disposition and Development Agreement including covenants,
conditions and restrictions, ("DDA") dated I , 20J entered by the CITY OF
FRESNO, a municipal corporation, ("C|TY"), and Cesar Chavez Foundation, a
non-profit public benefit corporation, ("DEVELOPER"), CITY conveyed certain
real property to DEVELOPER under a Grant Deed, dated I l,
recorded in the Offícial Records of Fresno County on [ ] as Document No. [ ]
(the "DEED"), and the DEVELOPER agreed to complete/cause the completion of
ifre of construction of certain improvements described therein (the "Project")
upon the premises described therein as the "Property" according to the terms
and conditions of the DDA and the documents and instruments referenced
therein, incorporated herein.
B. The DDA or a memorandum of it was recorded t 20) as lnstrument
No. t I in the official Records of Fresno county, california.
c.Under the terms of the DDA, after DEVELOPER completes/causes completion of
construction of the Project on the Property DEVELOPER may ask CITY to record
an instrument certifying that DEVELOPER has completed the required
improvements for such development in the form of a Release of Construction
Covenants and Certificate of Completion.
DEVELOPER has asked CITY to furnish DEVELOPER with a recordable
Release of Construction Covenants and Certificate of Completion for of the
development for the Project.
ClTy'S issuance of this Release of Construction Covenants and Certifícate of
Completion is conclusive evidence that DEVELOPER has completed the
construction on a Phase of development of the Property to terminate and release
DEVELOPER from the construction/improvement covenants in the DDA
pertaining to such Phase,
D.
E.
NOW THEREFORE:
1. As provided in Section 3.4 of the DDA, the Agency does hereby certify that
construction of all of the improvements required by the DDA on the portion of the
Property described in Attachment A, attached hereto and incorporated herein by
this reference, has been satisfactorily completed.
2. The DDA is therefore of no further force and effect as to such Phase of
Development of the Property (as to the construction requirements for the Project
on the Property), and all rights, duties, obligations and liabilities of the Agency
and the Developer thereunder with respect to such Phase of Development (with
respect to the construction of the Project shall cease to exist. Any continuing
and existing rights, duties, obligations and liabilities of the Agency and the
Developer (and its successors) pertaining such Phase of development [the
Projectl are provided in the Grant Deed conveying the Property from the Agency
to the Developer.
3, This Release of Construction Covenants and Certificate of Completion shall not
be deemed or construed to constitute evidence of compliance with or satisfaction
of any obligation of the Developer to any holder of a mortgage, or any insurer of
a mortgage, securing money loaned to finance the construction of the
improvements on the Property. This Release of Construction Covenants and
Certificate of Completion, is not a notice of completion as referred to in Section
3093 of the California Civil Code.
lN WITNESS WHEREOF, AGENCY has executed this Release of Construction
Covenants and Certificate of Completion as of this day of t ,20-.1
C]TY OF FRESNO,
A municipal corporation
Owner hereby consents to recording this Certificate of Completion against the
Property descríbed herein.
Dated:201 CESAR CHAVEZ FOUNDATION
By:
Its:
Na
THE ABOVE PARTIES ARE TO SIGN THIS INSTRUMENT BEFORE A NOTARY
PUBLIC.
ATTEST: APPROVED AS TO FORM:
CITY CLERK DOUGLAS T. SLOAN
CITY ATTORNEY
EXHIBIT E
FREE RECORDING REQUESTED BY AND
AFTER RECORDATION RETURN TO:
City of Fresno
Attention: City Manager
2600 Fresno Street
Fresno, CA93721
Attn: Bruce Rudd
(Space Above This Line For Recorder's Office Use Only)
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged,
CITY OF FRESNO, a municipal corporation ("Grantor"), hereby grants to CESAR
CHAVEZ FOUNDATION, a California non-profit public benefit corporation ("Grantee"),
the real property ("Property") legally described in Attachment No. 1 attached hereto and
incorporated herein by this reference.
Consistent with the Disposition and Development Agreement including
covenants, conditions and restrictions, ("DDA") dated I , 20) entered by Grantor
and Grantee, all incorporated herein by this reference, the Grantee herein covenants by
and for itself and its successors, transferees, vendees, administrators, and assigns, and
all persons claiming under or through it that:
1. There shall be no discrimination against or segregation of, any person or
group of persons on account of any bases listed in subdivision (a) or (d) of Section
TZggS of ine Government Code, as those bases are defined in Section 12926, 12926.1,
subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section
12955.2 of the Government Code, in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Property, nor shall Developer or any person
claiming únder or througÍr
-him or her, establish or permit any practice or practices of
discrimì-nation or segregãtion with reference to the selection, location, number, use or
occupancy of tenanté, lèssees, subtenants, sublessees, or vendees in the Property.
Z. a. Grantee will take all commercially reasonable precautions to
prevent the release into the environment of any Hazardous Materials (as defined in the
'OOn¡ in, on or under the Property. Grantee will comply with all governmental
requirements with respect to Hazardous Ma'erials.
b. Until a Certificate of Completion is recorded as to the
property/portion thereof, Grantee will notify Grantor and give Grantor ? 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, clean-ì,rp or abatement orders, cease and desist orders, reports filed
pursuant to self-reporting requirements, and repofts filed or applications made pursuant
to any governmental requirement relating to Hazardous Materials and underground
tanks. lmmediately after each incident, Grantee will report any unusual or potentially
important incidents respecting the environmental condition of the Property to Grantor.
c. lf a release of any Hazardous Materials into the environment
occurs, Grantee will, as soon as possible after the release, furnish Grantor with a copy
of any reports relating thereto and copies of all correspondence with governmental
agencies relating to the release. Upon request, Grantee will furnish Grantor 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.
d. Grantee will indemnify, defend, and hold Grantor harmless from
any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, 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 víolation, 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 or cross indemnity
occurring after conveyance, 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 lease, 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, clean-up, or
detoxification and the preparation of any closure or other required plans, and (c) costs
of legal proceedings and attorneys'fees.
e. Grantee releases Grantor from all claims Grantee may have
against, resulting from, or connected with the environmental condition of the Property.
Such claims include, without limitation, all claims Grantee may have against Grantor
under the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCl-./q"), or any other federal, state or local law, whether
statutory or common law, ordinance, or regulation concerning 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. Grantee expressly waives the
benefits of Civil Code section 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.
3. Grantor is the beneficiary of the covenants running with the land for itself
and for protecting the interest of the community and other parties, public or private, in
whose favor and for whose benefit the covenants are provided, without regard to
whether Grantor has been, remains, or is in ownership of any land on the
Property/portion thereof. Grantor may exercise all rights and remedies, and maintain
any actions or suits at law or in equity or other proceedings to enforce the covenants for
itself or any other beneficiaries. The provisions of the DDA which by their terms or
nature are intended to survive completion of the Project are fully enforceable under and
shall not merge with this Deed.
4. lf a conflict exists or arises between the provisions of this Deed and the
DDA, the DDA shall control.
The obligations of the Grantee hereunder are covenants or conditions running with the
land enforceable by Grantor through a reserved right to re-entry and reverter.
¡N WITNESS WHEREOF, the Grantor has caused this instrument to be executed
on its behalf by its respective officers thereunto duly authorized, this
day of 2015.
.GRANTOR"
CITY OF FRESNO
a municipal corporation
Date:
By:
Its:
ATTACHMENT NO. I GRANT DEED
CESAR GHAVEZ FOUNDAT¡ON
LEGAL DESCRIPTION OF THE PROPERTIES
APN:472-021-587
Previouslv APN 472-021 -45T (portion)
That real property situated in the City of Fresno, County of Fresno, State of California,
said real property being a portion of Lot 75 of Easterby Rancho, according to the map
thereof recorded in Book 2, at Page 6 of Plats, Fresno County Records, said real
property also being a portion of that parcel of land conveyed to the City of Fresno by a
Grant Deed recorded August 30, 2007 as Document No. 2007-0163315, Official
Records of Fresno County, hereinafter referred to as "Deeded Parcel", said real
property being more particularly described as follows:
COMMENCING at the northwest corner of Lot 76 of said Easterby Rancho; thence S
89"27'54" E, along the north line of said Lots 75 and 76, a distance of 647.00 feet;
thence S 0"45'49" W, parallel with the west line of said Lot 76, a distance of 29.00 feet
to the northwest corner of said Deeded Parcel, said northwest corner being the TRUE
POINT OF BEGINNING of this description; thence continuing S 0'45'49" W, parallel
with the west line of said Lot 76 and along the west line of said Deeded Parcel, a
distance of 137.00 feet; thence S 89"27'54" E, parallel with and 137.00 feet south of the
north line of said Deeded Parcel, a distance of 288.59 feet to a point on the arc of a
non-tangent curve concave to the south and having a radius of 45.00 feet, a radial to
said poínt bears N 58"50'16" W; thence easterly, along the arc of said non-tangent
curve, through a central angle of 118"44'43", an arc distance of 93.26 feet; thence
S 89"27'54" E, non-tangent to said curve and parallel with and 137.00 feet south of the
north line of said Deeded Parcel, a distance of 255.47 feet to the east line of said
Deeded Parcel; thence N 0'45'49" E, along said east line and parallel with the west line
of said Lot 76, a distance of 137.00 feet to the northeast corner of said Deeded Parcel;
thence N 89'27'54" W, along the north line of said Deeded Parcel, a distance of 621.50
feet to the TRUE POINT OF BEGINNING.
Contains an area of 1.93 Acres, more or less.
For the purposes of this description the north line of said Lot 76 is taken to be 30 feet
south of the north line of the Northeast Quarter of Section 7, Township 14 South, Range
21 East, Mount Diablo Base and Meridian, and the west line of said Lot 76 is taken to
be 20 feet east of the west line of said Northeast Quarter.
APN 472-021-607
Previouslv APN 472-021 -59T (portion)
That real property situated in the City of Fresno, County of Fresno, State of California,
said real property being a portion of Lot 75 of Easterby Rancho, according to the map
thereof recorded in Volume 2 of Plats at Page 6, Fresno County Records, said real
property also being a portion of that parcel of land conveyed to the City of Fresno by the
Grant Deed recorded August 30, 2007 as Document No. 2007-0163315, Official
Records of Fresno County, hereinafter referred to as "Deeded Parcel", said real
property being more particularly described as follows:
COMMENCING at the Northwest corner of Lot 76 of said Easterby Rancho; thence
South 89"27'54" East, 647.00 feet along the North line of said Lots 75 and 76; thence
South 00"45'49" West, 29.00 feet, parallel with the West line of said Lot 76 to the
Northwest corner of said Deeded Parcel; thence continuing South 00o45'49" West,
'137.00 feet, parallel with the West line of said Lot 76 and along the West line of said
Deeded Parcel to the TRUE POINT OF BEGINNING of this description, said point of
beginning also being the Southwest comer of the land described in the Grant Deed
recorded March 28,2008 as Document No. 2008-0046264, Official Records of Fresno
County; thence Easterly along the Southerly boundary of the land described in said
Document No. 2008-0046264 the following two courses 1) South 89"27'54" East,
288.59 feet along a líne 137.00 feet South of and parallel with the North line of said
Deeded Parcel to the beginning of a non-tangent curve concave to the Southeast
having a radius of 45.00 feet and to which beginning a radial lines bears North 58"50'
16" West; thence 2) Northeasterly, 46.21feet along said curve through a central angle
of 58"49'58"; thence South 00o45'49" West, 269.40 feet on a non-tangent line to last
said curve and parallel with the West line of said Lot 76, to a point on the Southerly
boundary of said Deeded Parcel; thence Westerly along the Southerly boundary of said
Deeded Parcel the following three courses 1) North 89'24'52" West, 41.95 feet; thence
2) North 00'32'24" East, 40.00 feet; thence 3) North 89"29'37" West, 284.69 feet to the
Southwest corner of said Deeded Parcel; thence North 00o45'49" East, 207.44 feet,
parallel with the West line of said Lot 76 and along the West line of said Deeded Parcel
to the TRUE POINT OF BEGINNING.
Contains an area of 70,040 square feet, more or less.
For the purpose of this description the North line of said Lots 75 and 76 is taken to be a
line 30.00 feet South of and parallel with the North line of the Northeast quarter of
Section 7, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, and
the West line of said Lot 76 is taken to be a line 20.00 feet East of and parallel with the
West line of the Northeast quarter of said Section 7.
2010-037p.
PLAT 2763
APN 472-021,617
APN 472-021 -59T (portion)
That real property situated in the City of Fresno, County of Fresno, State of California,
said real property being a portion of Lot 75 of Easterby Rancho, according to the map
thereof recorded in Volume 2 of Plats at Page 6, Fresno County Records, said real
property also being a portion of that parcel of land conveyed to the City of Fresno by the
Grant Deed recorded August 30, 2007 as Document No.2007-0163315, Official
Records of Fresno County, hereinafter referred to as "Deeded Parcel", said real
property being more particularly described as follows:
COMMENCING at the Northwest comer of Lot 76 oÍ said Easterby Rancho; thence
South 89"27'54" East, 647.00 feet along the North line of said Lots 75 and 76; thence
South 00o45'49" West, 29.00 feel, parallel with the West line of said Lot 76 to the
Northwest corner of said Deeded Parcel; thence continuing South 00"45'49" West,
137,00 feet, parallel with the West line of said Lot 76 and along the West line of said
Deeded Parcel to the TRUE POINT OF BEGINNING of this description, said point of
beginning also being the Southwest corner of the land described in the Grant Deed
recorded March 28, 2OOB as Document No. 2008-0046264, Official Records of Fresno
County; thence Easterly along the Southerly boundary of the land described in said
Document No. 2008-0046264 the following three courses 1) South 89'27'54" East,
288,59 feet along a line 137.00 feet South of and parallel with the North line of said
Deeded Parcel to the beginning of a non-tangent curve concave to the South having a
radius of 45.00 feet and to which beginning a radial lines bears North 58"50' 16" West;
thence 2) Northeasterly and Southeasterly, 93.26 feet along said curve through a
central angle of 118"44'43" to a point on a line 137.00 feet South of and parallel with
the North line of said Deeded Parcel; thence 3) South 89"27'54" East, 255.47 feet on a
non-tangent line and along last said parallel line to a point on the East line of said
Deeded Parcel; thence South 00"45'49" West, 298.20 feet, parallelwith the West line of
said Lot 76 and along the East line of said Deeded Parcel to the Southeast corner of
said Deeded Parcel; thence Westerly along the Southerly boundary of said Deeded
Parcel the following five courses 1) North 89"28' 15" West, 142.15 feet; thence 2) North
00'31'45" East, 50.75 feet; thence 3) North 89"24'52" West, 194.29 feet; thence 4)
North OO'32'24" East, 40.00 feet; thence 5) North 89'29'37" West, 284.69 feet to the
Southwest corner of said Deeded Parcel; thence North 00"45'49" East, 207.44 teet
parallel with the West line of said Lot 76 and along the West line of said Deeded Parcel
to the TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM all that portion of the above described real property more
particularly described as follows:
COMMENCING at the Northwest corner of Lot 76 of said Easterby Rancho; thence
South 89"27'54" East, 647.00 feet along the North line of said Lots 75 and 76; thence
South 00"45'49" West, 29.00 feet, parallel with the West line of said Lot 76 to the
Northwest corner of said Deeded Parcel; thence continuing South 00'45'49" West,
137.00 feet, parallel with the West line of said Lot 76 and along the West line of said
Deeded Parcel to the TRUE PO¡NT OF BEGINNING of this description, said point of
beginning also being the Southwest comer of the land described in the Grant Deed
recorded March 28, 2008 as Document No. 2008-0046264, Official Records of Fresno
County; thence Easterly along the Southerly boundary of the land described in said
Document No. 2008-0046264 the following two courses 1) South 89o27'54" East,
288.59 feet along a line 137.00 feet South of and parallel with the North line of said
Deeded Parcel to the beginning of a non-tangent curve concave to the Southeast
having a radius of 45,00 feet and to which beginning a radial lines bears North 58"50'
16" West; thence 2) Northeasterly, 46.21feet along said curve through a central angle
of 58"49'58"; thence South 00'45'49" West, 269.40 feet on a non-tangent line to last
said curve and parallel with the West line of said Lot 76, to a point on the Southerly
boundary of said Deeded Parcel; thence Westerly along the Southerly boundary of said
Deeded Parcel the following three courses 1) North 89"24 '52" West, 41 .95 feet; thence
2) North 00"32'24" East, 40.00 feet; thence 3) North 89"29'37" West, 284.69 feet to the
Southwest corner of said Deeded Parcel; thence Nofth 00'45'49" East, 207.44 feet,
parallel with the West line of said Lot 76 and along the West line of said Deeded Parcel
to the TRUE POINT OF BEGINNING.
Contains an area of 80,752 square feet, more or less.
For the purpose of this description the North line of said Lots 75 and 76 is taken to be a
line 30.00 feet South of and parallel with the North line of the Northeast quarter of
Section 7, Township 14 South, Range 21 East, Mount Diablo Base and Meridian, and
the West line of said Lot 76 is taken to be a line 20.00 feet East of and parallel with the
West line of the Northeast quarter of said Section 7.
EXHIBIT F
ESCROW INSTRUCTIONS
(Standard form of escrow instructions)
EXHIBIT C
EXHIBIT 6'C''
FORM OF MEMORANDUM OF OPTION
RECORDING REQUESTED BY:
FNTG Concord Title Group Serwicing
2150 John Glenn I)rÍve, Suite 400
Concord, California 94520
Escrow NO.
WHEN RECORDED RETIJRN TO:
Cesar Chavez Foundation
316 W.2nd Street, Suite 600
Los Angeles, California 90012
MEMORANDUM OF OPTION AGREEMENT
THIS MEMORANDUM OF OPTION AGREEMENT (this
"Memorandum") is made to be effective as of ("Effective Date") by
and between the CITY OF FRESNO, a municipal corporation ("Optionor") and CESAR
C}JAVEZ FOUNDATION, a California non-proflit public benefit corporation
("Optionee") pursuant to the following recitals:
RECITALS:
WHEREAS, this Memorandum is made pursuant to the terms and
conditions of an AGREEMENT FOR PURCHASE OPTION AND RIGHT OF ACCESS
between Optionor and Optionee dated effective 201_ (the
herein by"Option Agreement"), the terms and conditions of which are incorporated
reference; and
WHEREAS, Optionor owns those parcels of real property situated in the
City of Fresno, County of Fresno, State of California commonly identified as APN 472-
021-58T; 60T; and 61T and described in Exhibit "A" hereto (the "Property"); and
WHEREAS, under the terms of the Option Agreement, Optionor has
granted Optionee an option to purchase and develop the Property; and
WHEREAS, it is the intention of Optionor and Optionee that this
Memorandum be filed of record in the Office of the Recorder of Fresno County,
Califomia, to give notice to any and all persons of Optionee's rights under the Option
Agreement.
AGREEMENT:
NO\M, THEREFORE, in consideration of the mutual covenants contained herein,
the receipt and sufficiency of which are hereby acknowledged, and including the Recitals
set forth above, Optionor and Optionee agree as set forth below and execute this
Memorandum to provide notice of the following:
1. Term. The term of the option Agreement commenced on
201_and expires one (l) year after the commencement date, unless
extended as set forth in the Option Agreement.
2. Option Riehts. Optionor has granted Optionee an exclusive option to
purchase and develop the Property on the terms and conditions more particularly
described in the Option Agreement.
3. Addresses: All notices or requests for information shall be given to
Optionor and Optionee at the following addresses:
If to the Cþ City of Fresno
Attention: Assistant City Manager
2600 Fresno Street
Fresno, C^93721-3623
Ifto Seller Cesar Chavez Foundation
316 W. 2nd Street, Suite 600
Los Angeles, CA 90012
IN WITNESS WHEREOF, the undersigned parties have each caused this
Memorandum to be executed as of the day and year first above written.
OPTIONOR OPTIONEE
CITY OF FRESNO, a California municipal CESAR CHAVEZ FOUNDATION, a
corporation Califomia non-profit public benef,rt
corporation
By:By:
RENENA SMITH PAUL S. PARK
Assistant City Manager Secretary
TNP:nd (67086nd/tnP)
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