Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
MM Shirin Properties
2015-0150960 RECORDED AT THE REQUEST OF FRESNO County Recorder AND WHEN RECORDED RETURN TO: Paul Dictos, CPA Wednesday, Dec 19, 2018 10:38:28 AM Titles: 1 Pages: 48 Fees: 0.00 CA SB2 Fee: 0.00 •.rnr�►nt1�^ Il�rrn./ , Taxes: 0.00 "CifY Clerk Total: 0.00 �'Irn to G rf,.CI r� CITY CLERK 25[7 �resnpSt. Fr."'k CA.7721 (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. —13 9-1- OS CITY OF F NO, a municipal corporation By; Q(K-sache&er City Manager Dated: DISPOSITION AND DEVELOPMENT AGREEMENT By and Among CITY OF FRESNO a municipal corporation and CITY OF FRESNO, a municipal corporation, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno MM SHIRIN PROPERTIES, LLC Ventura & 7th Street Fresno, California 93721 ATTACHMENTS Exhibit A Site Map Exhibit A-1 Legal Description Exhibit B Scope of Development and Basic Design Exhibit C Performance Schedule Exhibit D Certificate of Completion Exhibit E City Grant Deed Exhibit F Housing Successor Grant Deed DISPOSITION AND DEVELOPMENT AGREEMENT This Disposition and Development Agreement (DDA or Agreement) is entered into as of the Effective Date (defined below), between CITY OF FRESNO, a municipal corporation (City), the CITY OF FRESNO, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno (Housing Successor) and MM SHIRIN PROPERTIES, LLC (Developer). RECITALS The parties enter this Agreement based on the following facts, understandings, and intentions: A. The City and Housing Successor currently own certain real property located at the corner of Ventura and 7th Street, Fresno, California, more particularly described in Exhibits"A" (Site Map) and "A-1," (legal description) attached. In particular, the City owns APN 470-052-02T and 470-052-03T while the Housing Successor owns 470-052-01T (collectively, the Property.) B. Developer proposes to purchase the Property from City and Housing Successor at fair market value and develop it privately as a mixed use development with retail and live work building areas, as more particularly described in the Scope of Development, attached as Exhibit "B" (the Project). C. Developer agrees to undertake improvements in accordance with the combined Performance Schedule described in Exhibit "C" attached hereto and incorporated herein (the Performance Schedule). D. This project has been environmentally assessed under the California Environmental Quality Act (CEQA) and found to be categorically exempt pursuant to Section 15301 (Class 1 — Existing Facilities), Section 15312 (Class 12- Surplus Government Property, and Section 15332 (Class 32 - Infill Development). AGREEMENT In 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, Housing Successor, and Developer. 1.3 Certificate of Completion. "Certificate of Completion" means that Certificate issued in the form attached as Exhibit D to Developer by City evidencing completion of the Project for purposes of this Agreement. 1.4 Cit)L "City" means the City of Fresno, a municipal corporation, having its offices at 2600 Fresno Street, Fresno, California 93721-3605, and operating through its Council and its various departments. l 1.5 Closing, Close, or Close of Escrow. "Closing," "Close" or "Close of Escrow" means the closing of the escrow in which the City conveys a fee interest in the Property to Developer. 1.6 Day. "Day,"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 MM SHIRIN PROPERTIES, LLC 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 Developer. 1.12 Escrow Holder. "Escrow Holder" means Fidelity Title Company, 7475 N. Palm Avenue, Suite 101, Fresno, California 93711, Attn: Bernadette Watson, Escrow office, 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, or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, (b) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, (c) defined as a "hazardous material,""hazardous substance,"or"hazardous waste" under Section 25501 of the California Health and Safety Code, (d) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, (e) petroleum, (f) friable asbestos, (g) polychlorinated biphenyl, (h) listed under Article 9 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. §1317), Q) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act (42 U.S.C. §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. §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 2 commercial developments which are comparable to the Improvements; 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 Housing Successor. "Housing Successor"means the City of Fresno in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno having its offices at 848 M Street, 3rd Floor, Fresno, California 93721. 1.15 Improvements. "Improvements"means the construction of the Project on the Property as set forth in the Scope of Work in Exhibit "B". 1.16 Outside Date. "Outside Date" means December 31, 2019, the last date on which the parties are willing to Close the Escrow. 1.17 Performance Schedule. "Performance Schedule"means the schedule attached as Exhibit C, setting forth the dates and times by which the parties must accomplish certain obligations under this Agreement. The parties may revise the Schedule from time to time on mutual written agreement of Developer and City, but any delay or extension of the completion date is subject to the requirements in this Agreement. 1.18 Phase. "Phase" means a stage or portion of the Project designated by Developer for construction. A Phase may not consist of less than an entire residential, mixed-use, or commercial structure. 1.19 Project. "Project" means the development that Developer is to complete on the Property and any off-site improvements, as generally described in the Scope of Development, attached as Exhibit B. The Project includes, a mixed use development with retail and live work building areas. 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 and consistent with the General Plan, Ventura Avenue-Kings Canyon Road Corridor goals. The Ventura Avenue—Kings Canyon Corridor is envisioned to be developed with areas of multi- family housing facing directly on the street and retail centers integrated with housing at the one-mile and half-mile road intersections. Much of the Corridor is expected to evolve as a Main Street environment which includes active storefronts, outdoor seating, and pedestrian oriented design. 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 with 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 days. If no action is taken by the City Manager within the forty-five day period, the request shall be deemed approved. 1.20 Project Completion Date. "Project Completion Date" means the date that City shall have determined the Project has reached completion in accordance 3 with the plans and specifications in the Development Schedule, as evidenced by City's issuance of a Certificate of Completion. 1.21 Property. "Property" means the real property described in Exhibits A and A-1. 1.22 Security Financing Interest. "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 and Housing Successor will convey the Property to Developer for the purchase price and on the conditions set forth herein. 2.1 Purchase Price. Developer will purchase the Property from City and Housing Successor for a purchase price of$575,000.00 (Purchase Price). $75,000 of the Purchase Price shall be issued directly to the Housing Successor for deposit into its Low and Moderate Income Housing Asset Fund for the sale of APN 470- 052-01 T, as set forth in Section 2.11(C) below. The Developer shall pay the Purchase Price upon the Close of Escrow. Within five days following the Effective Date of the Agreement, Developer shall deposit with the Escrow Holder the sum of $40,000.00 (Deposit). The Deposit shall become non-refundable at the end of the Review Period as set forth in Section 2.3.2(B). The Deposit shall be applied to the Purchase Price at the Close of Escrow as defined in Section 2.10. 2.2 Escrow. Within five days following the Effective Date of this Agreement, City and the Developer will open an Escrow with the Escrow Holder, and deposit a signed copy of this Agreement as their initial joint escrow instructions. City and the Developer will sign 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 Closing 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. Insurance. 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. 4 B. Notice of Accepting Property Condition. Developer has given written notice to City that it has inspected the Property and accepts the Property in AS IS condition. If the Developer, after its inspection of the Property and review of any environmental reports, disapproves the Property's environmental or other condition, and 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 otherwise. 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 days following the Effective Date. Developer shall notify City in writing within fifteen days after receipt of a copy of the preliminary title report whether it approves the condition of title. Developer's failure to give such notice within fifteen days will be deemed approval of the condition of title. If Developer notifies City that it disapproves any title exception, City may, but is not obligated to, remove that title exception within fifteen days after receipt of Developer's written notice. If 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 business days after the expiration of such fifteen 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. Inspection. Because City will convey fee title of the Property to Developer "AS IS," with all faults, except as specifically provided herein (see Section 2.9.1), fora period of 150 days after the 5 Effective Date of this Agreement(the Review 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 and Phase II environmental 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 Investigation). If, for any reason, Developer is dissatisfied, in Developer's sole and absolute discretion, with the results of the Due Diligence Investigation, Developer shall provide written notice of disapproval of the Due Diligence Investigation to the City and Escrow Holder. Such written notice of disapproval shall be provided prior to the expiration of the Review Period, and will constitute Developer's notice to terminate pursuant to Section 2.3.3, below. Within ten 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); (iii) 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 available 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. 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. D. No Litigation. 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 6 which could materially interfere with the development of the Property as set forth herein. 2.3.3 Termination for Failure of Condition. In the event there is a failure of one or more conditions described in Section 2.3.1 or 2.3.2 that 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. 2.3.4. Failure to Give Notice of Termination or Cancellation. If Developer has not given notice of termination and cancellation on or before expiration of the Review Period (as defined in Section 2.3.2(B)), then the Deposit shall be non-refundable and released and paid over to City by Escrow Holder on the next business day immediately following the expiration of the Review Period without the need for further instructions, notice or demand from City to Developer. If, however, Developer, in its sole and absolute discretion, decides to terminate and cancel the Agreement by timely delivering a termination and cancellation notice on or before expiration of the Review Period, then the entire amount of the Deposit, and any accrued interest thereon, shall be immediately refunded to Developer by Escrow Holder without the need for further instruction, notice or demand from or to City. 2.4 Escrow and Title Costs. The Developer and City shall each pay 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 an ALTA standard 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 an ALTA extended owner's policy of title insurance or any special endorsements required 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. City shall pay a brokerage commission equal to six percent (6%) of the gross sales price of which 2.5% shall be paid to Retail California (Peter Orlando) who represents the Developer and 3.5% shall be paid to Cushman &Wakefield/Pacific who represents the City, at Close of Escrow. 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. If the then- current taxes and assessments are not ascertainable, the Escrow Agent will apportion the taxes and assessments based on the most recent statement of taxes and assessments. Escrow Holder will adjust the proration, if necessary, within thirty days after the actual taxes and assessments are available. Developer will be solely responsible for ad valorem taxes or assessments on the Property or any taxes on this Agreement or any rights hereunder, which may be levied, assessed or imposed for any period after the Closing. 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 7 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 NonmercLer. Prior to the issuance of a Certificate 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 IS" — No Warranties. Subject to the provisions of Section 2.9.1, City will convey the Property "AS IS" with all faults, including, without limitation, the conditions disclosed in any toxics reports delivered to Developer, any conditions disclosed in the files of the regulators such as, but not limited to, the Fresno County Health Department, and the Regional Water Quality Control Board, and any environmental or other physical conditions on or underthe 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. The Escrow will close after the parties satisfy all the conditions precedent to Closing as set forth in this Agreement, but not later than the "Outside Date," unless the parties mutually agree to extend the time for Closing. 2.11 Authority of Escrow Holder. The parties authorize the Escrow Holder to, and the Escrow Holder will do the following: A. Title Policy Premium. Pay and charge City and Developer, respectively, for the title insurance premiums described in Section 2.4 of this Agreement. B. Pay 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. City and Developer must agree in separate writing or instructions to the Escrow Holder to the allocation of costs to cure title exceptions or property conditions; provided, however, that City shall, at its sole cost and expense, clear all liens evidencing monetary encumbrances (other than liens for non-delinquent property taxes). Charge City to pay a brokerage commission equal to six percent (6%) of the gross sales price of at Close of Escrow as set forth in Section 2.4 of this Agreement. C. 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. $75,000 of the Purchase Price shall be issued directly to the Housing Successor for deposit into its Low and Moderate Income Housing Asset Fund and the remainder of the Purchase Price shall be disbursed to the City. 8 D. Actions to Fulfill Obligations. Take any other action necessary to fulfill its obligations under this Agreement. E. FIRPTA and More. Direct the parties to deliver any instrument, or to perform any act, necessary to comply with FIRPTA or any similar state act and regulation promulgated thereunder. 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. F. Closing and Other Statements. Prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, tax withholding forms including, without limitation, an IRS 1099-S form, and be responsible for withholding taxes, if the law so requires. G. 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. H. Termination Without Close. If the Escrow is not in condition to close by the Outside Date, then any party that is not in default of this Agreement may demand the return of money or property and terminate this Agreement and the Escrow. If either party makes a written demand for return of documents or properties, this Agreement will not terminate until five days after Escrow Holder has delivered copies of the demand to the other party at the respective addresses shown in this Agreement. If the other party objects within the five-day period, the parties authorize the Escrow Holder to hold all papers and documents until instructed by a court of competent jurisdiction or by mutual written instructions of the parties. Termination of this Agreement will be without prejudice to whatever legal rights either party may have against the other arising from this Agreement. If no party demands that the Escrow terminate, the Escrow Holder will proceed to Closing as soon as possible. 2.12 City's Authority to Sign Instructions and Documents. The City Manager or her designee is authorized to execute any supplemental escrow instructions for City that are not a material change hereto. The City Manager or her 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 Conveyance. 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 9 than work in connection with Developer's Due Diligence Investigation, 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 set forth in this Agreement, before Developer begins constructing the Improvements or undertakes any other work of improvements on the Property, Developer, at its own cost and expense, will independently secure all land use and other entitlements, permits, and approvals that City or any other governmental agency with jurisdiction over the Project requires for construction of the Project. Except as may be expressly provided herein, Developer shall not begin construction or perform any other work on the Property until after Closing. However, the parties agree that in the event that Developer shall fail to receive all or any material portion of loans as contemplated by Developer, then the Project and Scope of Development contemplated by this Agreement shall 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 amount of the loan funds not received by Developer. Any such change shall be set forth in a written amendment to this Agreement. If the parties cannot agree on a revised Project and Scope of Development within a reasonable period of time not to exceed 180 days under such circumstances, the purchase and sale of the real property shall be rescinded and this Agreement shall be cancelled and the real property shall be reconveyed to the City and all funds previously paid by Developer to City or otherwise related to this Agreement or the Project shall concurrently be refunded to Developer such that the 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 Project. 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 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 a written extension signed by the parties and subject to any extension of time provided for in Section 3.3. In the event Developer does not perform and complete work pursuant to the Performance Schedule as set forth in Exhibit"C" or is otherwise unable to deliver a completed project, the purchase and sale of the real property shall be rescinded and this Agreement shall be cancelled and the real property shall be reconveyed to 10 the City and all funds previously paid by Developer to City or otherwise related to this Agreement or the Project shall concurrently be refunded to Developer such that the parties shall be restored to their original positions prior to the execution of this Agreement to the greatest extent possible. 3.3 Extension of Time for Completion. In 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 weather; 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 of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty days after the commencement of the cause, the period shall commence to run only thirty days prior to the giving of such notice. Times of performance under this Agreement may also be extended in writing by City and the Developer. City Manager, on behalf of City, may grant extension(s) which cumulatively do not exceed 180 days; any additional extension shall require City Council approval. 3.4 Certificate of Completion. After Developer has satisfactorily completed a Phase of the Project according to this Agreement and after the completion of the final Phase of the Project, Developer may ask City to record a Certificate of Completion indicating that a Phase or that all Phases are complete, substantially in the form attached as Exhibit D. For purposes of this section, Developer's submission of a "Safe to Occupy" Certificate or Certificate of Occupancy for the Improvements within the subject Phase of the Project shall be conclusive evidence that Developer has satisfactorily completed those Improvements. Subject to the satisfaction of the conditions to its issuance(see next subsection) and within ten days of such request, City shall provide an instrument certifying Developer's completion of the Project, or any Phase thereof, by preparing and recording the Certificate of Completion. This release, when recorded, will evidence City's conclusive determination that Developer has satisfied the construction covenants in this Agreement as to the subject Phase of the Project. The release will not be evidence that Developer has complied with or satisfied any obligation to any person holding a deed of trust or Security Financing Interest. The release shall not terminate Developer's indemnification or other obligations, which by their nature are intended to survive Project completion. After the release is recorded in the Official Records of Fresno County, any party then owning or after that purchasing, leasing or otherwise acquiring any interest in the applicable portion of the Property shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement regarding the construction requirements or Project development of the completed Project. 11 3.5 Conditions to issuing the Certificate of Completion. The following are all conditions precedent to City issuing the Certificate of Completion for the Project, or any Phase thereof, and each submission will be in a form and substance satisfactory to City: A. Evidence that all mechanics' liens or material men's liens and claims recorded against the Property, or any Phase thereof, and the Project Improvements that are the subject of the Certificate of Completion have been unconditionally and finally released or, if not released, sufficiently bonded against as required by law. 3.6 Liens and Stop Notices. If a claim of lien or bonded stop notice is recorded against the Property or any Project improvements, the Developer, within ninety-one days after that, or within five days after City's demand, whichever last occurs, will do the following: A. Pay or discharge the same; or B. Effect the release of it by recording and delivering to City a surety's release bond in sufficient form and amount, or otherwise; or C. 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. 3.7 Annual Proof of Insurance. 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. 3.8 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, may seek, apply for or take advantage of any exemption from property/possessory taxes under applicable Federal or State Statutes. The Developer is allowed to use, transfer or sell the Property/portion thereof, whether prior to or following completion of the Improvements hereunder, to an entity that is exempt from property/possessory tax and/or which would allow a removal from the tax roll, subject to prior notice to and written consent of City. Such consent shall not be unreasonably withheld. 3.9 Compliance with Laws. In performing its obligations hereunder, Developer shall comply with all applicable laws, regulations, and rules of the governmental agencies having jurisdiction, including, without limitation, applicable federal and state labor standards and environmental laws and regulations. Developer, not City, is responsible for determining applicability of and compliance with all local, state and federal laws including, without limitation,the California Labor Code, Public Contract Code, Public Resources Code, Health & Safety Code, Government Code, the City Charter, and Fresno Municipal Code. City makes no 12 representations regarding the applicability of any such laws to this Agreement, the Project, or the parties' respective rights or obligations hereunder including, without limitation, payment of prevailing wages, competitive bidding, subcontractor listing, or other matters. 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 Indemnity. To the furthest extent allowed by law, Developer shall indemnify, hold harmless and defend, with qualified counsel of Developer's choice, the City, and each of its officers, officials, employees and agents from any loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability including, without limitation, personal injury, death at any time and property damage) incurred by the City, Developer or any other person, and from any claims, demands and actions in law or equity(including reasonable attorneys'fees, litigation and legal expenses incurred by the City or held to be the liability of the City, including plaintiff's or petitioner's attorney's fees if awarded, in connection with City's defense of its actions in any proceeding), arising or alleged to have arisen directly or indirectly out of performance or in any way connected with: (i)the making of this Agreement; (ii) the performance of this Agreement; (iii)the installation of the work or Improvements by the Developer and Developer's employees, officers, agents, contractors or subcontractors; (iv) the design, installation, operation and removal or maintenance of the work and Improvements otherthan those portions of the Improvements that are dedicated to the City for public use; or(v) City's granting, issuing or approving use of this Agreement. Developer's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees or agents are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or authorized volunteers. This indemnity shall also cover, without limitation, the following: (1)any act, error or omission of Developer as to City or any of its officers, employees, contractors, subcontractors, invitees, agents or representatives in connection with this Agreement, the Project or the Property; (ii) any use of the Property by Developer or any of its officers, employees, contractors, subcontractors, invitees, agents or representatives, successors or assigns; (iii) the design, construction, operation or maintenance of the Project, unless otherwise specifically excepted herein, or(iv)the failure of Developer or any of its officers, employees, contractors, subcontractors, invitees, agents or representatives to comply with any Federal, State or local law, code, ordinance or regulation applicable to this Agreement or the Project, including, but not limited to, claims based upon failure to comply fully with prevailing wage laws as may be determined by any court or agency of the State of California or United States Government; with respect to any and all claims related to prevailing wage, Developer, as provided herein and otherwise in this Agreement, assumes all responsibility for payment of prevailing wage and complying with prevailing wage laws, if required, and specifically waives any and all rights against the City, as well 13 as City agents, employees, agencies, and consultants, pursuant to California Labor Code section 1726(c) and analogous federal law, if any, and agrees to defend and fully indemnify the City, as well as City agents, employees, agencies, and consultants, for any claims based upon failure to pay prevailing wage, including, without limitation, claims for damages, fines, penalties, litigation expenses, costs, attorneys' fees, and interest. Developer and/or City have the right to contest or challenge any finding that prevailing wage applies. This section shall survive termination or expiration of this Agreement and the potential recordation of the Grant Deeds. 4.1.1 Action Arising Out of Approval of This Agreement. 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 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 Indemnification 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 Insurance. 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 in full force and effect all insurance as required herein with an insurance company(ies) either(i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. 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 fact that insurance is obtained by Developer shall not be deemed to release or diminish the liability of Developer, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify 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 14 provided by Developer. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Developer, vendors, suppliers, invitees, contractors, consultants, subcontractors, or anyone employed directly or indirectly by any of them. 4.2.1 Commercial General Liability Insurance. Commercial general liability Insurance, which shall be at least as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01 and shall include 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 $5,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $5,000,000 aggregate for products and completed operations, and $10,000,000 general aggregate. 4.2.2 Commercial Automobile Liability Insurance. Commercial automobile liability insurance, which shall be at least as broad as the most current version of Insurance Services Office (ISO) Business Auto Coverage Form CA 00 01 (Section 1, subsection A.1 entitled "Any Auto"), with combined single limits of liability of not less than $2,000,000 per accident for bodily injury and property damage. 4.2.3 Workers' Compensation Insurance. Workers' compensation insurance, as required under the California Labor Code. 4.2.4 Employer's Liability. Employer's liability coverage with minimum limits of liability of not less than $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. The above-described policies of insurance shall be endorsed to provide an unrestricted thirty calendar day's written notice in favor of the City, of policy cancellation, change or reduction of coverage, except the Workers' Compensation policy that shall provide a ten calendar day written notice of such cancellation, change or reduction of coverage. If any policy is due to expire during the term of this Agreement, Developer shall provide a new certificate evidencing policy renewal not less than fifteen calendar days before the expiration date of the policy. When an insurer, broker, or agent issues a notice of cancellation, change or reduction in coverage, Developer shall immediately obtain and file a certified copy of a new or renewal policy and certificates for such policy with the City. The General Liability and Automobile Liability insurance policies shall be written on an occurrence form and shall name the City and the officers, officials, agents and employees as an additional insured. Both the General Liability and Automobile Liability policies shall be or endorsed to provide that Developer's insurance is primary and no contribution is required of the City. Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, employees and 15 volunteers. Developer shall furnish the City with copies of the actual policies upon the request of its designee, or the City's Risk Manager. The fact that insurance is obtained by Developer or its subcontractors shall not be deemed to release or diminish the liability of Developer or its subcontractors including without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify the City, and their officers, officials, agents, employees and volunteers, 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 Developer or its subcontractors, except that any payment from an insurance policy paid towards Developer's indemnity obligation shall be applied towards Developer's total indemnity obligation for the particular claim for which the insurance policy has made such payment. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Developer, its principals, officers, agents, employees, persons under the supervision of Developer, vendors, suppliers, invitees, subcontractors, consultants or anyone employed directly or indirectly by any of them. If Developer fails to maintain the required insurance in full force and effect, Developer shall immediately discontinue all work under this Agreement, and take all necessary actions to secure the work site to insure that public health and safety is protected, until the City receive notice that the required insurance has been restored to full effect and that the premiums for the insurance have been paid for a period satisfactory to City. Developer's failure to maintain any required insurance shall be sufficient cause for the City to terminate this Agreement after notice and the right to cure as provided in Section 7.4. If Developer subcontracts all or any portion of the work under this Agreement, Developer shall require each subcontractor to provide insurance protection in favor of Developer and the City, and their officers, officials, employees, agents and volunteers according to the terms of each of the preceding paragraphs, except that the subcontractors' certificates and endorsements shall be on file with Developer, and City before the subcontractor begins any work. SUBCONTRACTORS - If Developer subcontracts any or all of the services to be performed under this Agreement, Developer shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractor must be reviewed and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, Developer will be solely responsible for ensuring that its subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. 4.2.5 Insurance for Project Design Work. Developer shall maintain for its Project design work, or if Developer subcontracts any of the Project 16 design work Developer shall require each design subcontractor to maintain, professional liability insurance (errors and omissions) with a limit of not less than one million dollars ($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 year discovery period, or (ii) the coverage shall be maintained for a minimum of five 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. 4.2.6 Performance and Pa ment Bonds. Developer will obtain and deliver labor and material bonds, payment, and performance bonds, issued by an insurance company meeting the criteria for Developer's other insurance under this Agreement. The bonds will each contain a penal sum at least equal to 40% of Developer's estimated construction costs of any particular Phase of the Project then under construction and shall remain in full force until the issuance of a "Safe to Occupy" Certificate or Certificate of Occupancy, or the recording of a Certificate of Completion for that Phase, whichever is earlier. The bonds will name City as co-obligee. Instead of requiring performance and payment bonds, City may consider and accept other evidence of Developer's ability to complete the Project. 5, SECURITY FINANCING INTERESTS AND RIGHTS OF HOLDERS. 5.1 Prohibition Against Transfer of Property, the Buildings or Structures Thereon and Assignment of Agreement. 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 Property or the buildings or improvements thereon without the prior 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 Interests; B. A sale, conveyance, or transfer of the Property at foreclosure (or a deed in lieu of foreclosure) resulting from a Security Financing Interest; 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; 17 E. Sale or assignment to an entity controlled by or in common control with Developer; F. Assignments resulting from the death or mental or physical incapacity of an individual; G. Assignments in trust for the benefit of a partner's spouse, children, grandchildren or other family members. 5.2 Approval or Consent of Cit . When a request for transfer or assignment is submitted to City for consideration, approval will be conditioned on the following: A. Financial Strength and Business Experience. 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. B. Assumption Agreement. Any transferee, by recordable instrument acceptable to City, shall expressly assume all the unfulfilled or ongoing obligations of the Developer under this Agreement, and agree to be subject to all the conditions and restrictions to which the Developer is subject with respect to the Property or applicable portion thereof. C. Transfer Documents. The Developer or its successors shall submit all documents, proposed to affect any transfer or assignment, to City for review and approval. D. 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 days after receiving the request and all supporting documentation. E. 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 Security Financing; Rights of Holders. 5.3.1 No Encumbrances Except Mortgages, Deeds of Trust, Sales and Lease-Back or Other Financing for Development. Notwithstanding Section 5.1 of this Agreement, mortgages, deeds of trust, sales and leases- back 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 18 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 associated with the loan and construction of the Improvements; (5) the interest on each construction 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 conditions have been met and the City Manager or his designee has not approved or rejected the terms of the subordination within thirty days of the conditions having been met. The Developer shall promptly notify City of any mortgage, deed of trust, sale and lease-back or other financing conveyance, encumbrance or lien that has been created or attached thereto prior to completion of the construction of the improvements on the Property 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 Obligated To Construct Improvements. 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 Mortgage, Deed of Trust, or Other Security Interest Holders; Right 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 Improvements, City shall at the same time deliver a copy of such notice 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 contained in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Improvements (beyond the 19 extent necessary to conserve or protect the Improvements 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 Improvements to which the lien or title of such holder relates and submit evidence reasonably satisfactory to City that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder properly completing such Improvements shall be entitled, upon written request made to City, to a Certificate of Completion from City. 5.3.4 Failure of Holder to Complete Improvements. In any case where, six months after default by the Developer in completion of construction of Improvements 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 may purchase the mortgage, deed of trust, or other security interest by payment to the holder of the amount of the unpaid debt, plus any accrued and unpaid interest. If 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 equal to 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 overhead), 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 Right of City to Cure Mortgage, Deed of Trust or Other Security Interest Default. In the event of a default or breach by the Developer on a mortgage, deed of trust or other security interest with respect 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. In 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 20 the extent of such costs and disbursements. Any such lien shall be subject to mortgages, deeds of trust or other security interests executed for the sole purpose of obtaining funds to purchase and develop the Property as authorized herein. 6. REPRESENTATIONS AND WARRANTIES. 6.1 Developer Representations and Warranties. 6.1.1 Representations and Warranties of Developer. Developer represents and warrants that: A. Developer is a California limited liability company 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. Except as may be specifically set forth in this Agreement, no approvals or consents not heretofore obtained by Developer are necessary to Developer's execution of this Agreement. F. Developer has or will have sufficient funds available to fund the Project and to pay all costs assumed by Developer 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. 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 21 constitute a waiver, and will not deprive the party of its right to institute and maintain any action or proceeding necessary to protect or enforce any right or remedy. 7.2 Legal Actions. A party may institute a legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purposes of this Agreement. 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 Rights and Remedies are Cumulative. Except as may be expressly stated otherwise in this Agreement, the rights and remedies of the parties are cumulative. The exercise by either party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or a different time, of any other rights or remedies for the same default or any other default. In addition to the specific rights and remedies herein, the parties may resort to any other rights or remedies available at law or in equity, including, without limitation, specific performance. 7.4 Notice and Cure Periods. If 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 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. If the default is not susceptible to cure within the thirty days, the defaulting party shall begin to cure the default within the thirty 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 equity. 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. 7.5 Right of Re-entry JPower of Termination) and Reverter. City may reenter and take possession of the Property, or part of it, and terminate the estate conveyed to Developer by the Grant Deed and revest the estate if City, after the Closing, but before recording a Certificate of Completion, if any of the following occurs: 7.5.1. Developer does not begin and complete construction of the Project within the time specified in the Performance Schedule or this Agreement unless otherwise extended by the terms herein; or 7.5.2 Developer abandons or substantially suspends construction of the Project for 30 days after City gives written notice of the abandonment or suspension; or 7.5.3 Developer assigns or transfers, or suffers an involuntary transfer of, any rights or obligations under this Agreement, or in the Property, in violation of the assignment provision of this Agreement. 7.6 Effect on Security Holders. City's right to reenter, repossess, terminate, and revest shall be secured by the provisions of the Grant Deed attached 22 hereto as Exhibits E and F. Such right to reenter, repossess, terminate and revest shall be subject to, limited by, and shall not defeat, render invalid, or limit: (i) any Security Financing Interest permitted by this Agreement; or(ii) any provision of this Agreement protecting the holder's Security Financing Interest. The provisions of Section 7.5 and 7.6 shall automatically terminate on the recordation of a Certificate of Completion for the Project (or applicable phase.) 8. 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 hours after mailing, if mailed to the party to whom notice is to be given, by first class mail which is either registered or certified, postage prepaid, return receipt requested; (iii)within twenty- four 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: CITY: City of Fresno Attention: City Manager 2600 Fresno Street Fresno, CA 93721 WITH COPIES TO: City Attorney 2600 Fresno Street Fresno CA 93721-3602 Facsimile No.: (559) 498-1815 HOUSING SUCCESSOR: Attention: Executive Director 848 M Street, 3rd Floor Fresno, California 93721 DEVELOPER: MM Shirin Properties, LLC Attn: Mark Shirin 2106 W. Fir Fresno, CA 93711 Phone: 559-430-9997 FAX: 559-447-9790 23 A party may change its address by notice given according to this subsection. 8.2 Conflict of Interests. No member, official, officer or employee of the Developer or City shall have any direct or indirect interest in this Agreement, or shall participate in any decision relating to this Agreement where such interest or participation is prohibited by law. No officer, employee, or agent of City who exercises any function or responsibility concerning the planning and carrying out of the Project, or any other person who exercises any function or responsibility concerning any aspect of this Agreement or the Project, shall have any personal financial interest, direct or indirect, in this Agreement or the Project. 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 obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, consultants, engineers and attorneys. 8.2.1 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, rather each such person shall be deemed to have agreed (a) that they shall look to Developer as their sole source of recovery if not paid; and (b) except as otherwise agreed to by City and any such person in writing, they may not enter any claim or bring any such action against City under any circumstances. Except as provided by law, or as otherwise agreed to in writing between City and any such person, each such person shall be deemed to have waived in writing all right to seek redress from City under any circumstances whatsoever. 8.3 Nonliability of Officials, Employees, and Agents. No member, official, officer, employee or agent of City shall be personally liable to the Developer, or any successor in interest, for any default or breach by City. 8.4 Counterparts. This Agreement may be executed in counterparts, and together each executed counterpart shall constitute one Agreement. 8.5 Waiver. A party's waiver of the other's breach of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of the same or a different provision of this Agreement. No provision of this Agreement may be waived except in a writing signed by all the parties. Waiver of any one provision shall not be deemed to be a waiver of any other provision herein. 8.6 Attorneys' Fees. If a party initiates or defends litigation or any legal proceeding regarding the enforcement of this Agreement, the prevailing party in such litigation or proceeding, in addition to any other relief that may be granted, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys'fees on any appeal. A party entitled to attorneys'fees shall be entitled to all other reasonable costs for investigating the action, retaining expert witnesses, taking depositions and discovery, and all other necessary costs incurred with respect to the action. All such fees shall be deemed to have accrued on commencement of the action and shall be enforceable whether or not such action is prosecuted to judgment. 24 8.7 Governing Law. This Agreement shall be interpreted and enforced, and the rights and duties of the parties under this Agreement (both procedural and substantive) shall be determined according to California law. 8.8 Further Assurances. Each party will take any further acts and will sign and deliver any further instruments required to carry out the intent and purposes of this Agreement. 8.9 Entire Understanding of the Parties. The exhibits referenced as attached are by such references incorporated into this Agreement. This Agreement, including exhibits, is the entire understanding and agreement of the parties. All prior discussions, 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. 8.10 Consent, Reasonableness. Unless this Agreement specifically authorizes a party to withhold its approval, consent or satisfaction in its sole discretion, any consent, or approval, or satisfaction to be requested or required of a party, shall not be unreasonably withheld, conditioned or delayed. 8.11 Partial Invalidity. If any part of this Agreement is held to be invalid, void or unenforceable in any legal, equitable or arbitration proceeding, the remainder of the Agreement shall continue in effect, unless not giving effect to the invalid or unenforceable part would prevent effecting the purposes of the Project and this Agreement. 8.12 Ambiguity. This Agreement is the result of the combined efforts of the parties. Should any provision of this Agreement be found ambiguous, the ambiguity shall not be resolved by construing this Agreement in favor of or against any party, but by construing the terms according to their generally accepted meaning, considering the objective of the Agreement. 8.13 Number and Gender. Masculine, feminine or neuter gender terms and singular or plural numbers will include others when the context so indicates. 8.14 Headings. All headings are for convenience only, are not a part of this Agreement, and are not to be used in construing this Agreement. 8.15 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 shall 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. 8.16 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 relationship between City and the Developer or any of the Developer's contractors, subcontractors, employees, agents, representatives, transferees, 25 successors-in-interest or assigns. Nothing in this Agreement establishes a principal and agent relationship between the parties. 8.17 Nature of the Project. The Project is a private undertaking of the Developer. After City conveys title or possession of the property 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. 8.18 Time of Essence. Time is of the essence of each term, condition, and covenant contained in this Agreement. 8.19 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. [SIGNATURES APPEAR ON NEXT PAGE] 26 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, on the day and year first above written. CITY OF FRESNO, DEVELOPER, A Califor uni ipal core ion MM Shirin Properties, LLC _3 By. ' an-Sc City Manager City of Fresno in its capacity as Housing Name: Mark Shirin Successor to Redevelopment Agency of the City of Fresno Title: Member (If corporation or LLC., Board Chair, Pres. By or Vice Pres.) Marlene Muiriihey Executive Director By: APPROVED AS TO FORM: Name: DOUGLAS T. SLOAN City ttorney Title: (If corporation or LLC., CFO, Treasurer, Secretary or Assistant Secretary) Tracy N arvanian Date REVIEWED BY Senior 134uty City Attorney <<,-,( 4 ATTEST: G% OF PR,�r YVONNE SPENCE, MMC a City Clerk -0d ti t � �4 n oc*•%�- By: Deputy iU/ L� K��cZ Addresses: CITY: DEVELOPER: City of Fresno MM Shirin Properties, LLC Attention: Laura Gloria Attention: Mark Shirin Deputy City Manager Member 2600 Fresno Street 2106 W. Fir City Manager's Office Fresno, California 93711 Fresno, CA 93721 Phone: 559-430-9997 Phone: (559) 621-7773 FAX: 559-447-9790 FAX: (559) 621-7776 HOUSING SUCCESSOR Attention: Marlene Murphy 848 M Street, 3rd Floor Fresno, California 93721 21 i A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness* accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF FRESNO ) On before me, Notary Public personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Sea!) Irlcro�fA 11EIIIIIIII cQTZarLFs cc )MM. #2099999 Z 2 ' �.••. Notary California JD Fresno County �,�.;;�• Comm,6 ires l=eb.13 2d19+ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California ) County of. w e rat4ao } On N04 Zk j ��o before me, Date n.Here Insert Name and Title of the Offic personally appeared "PLIR•� s�� *Is Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. NOEMISCHWARTZ WITNESS my hand and official seal. Notary Public-CaAlornfa Fresno County C*MMNSiOn 0 2215603 Signature My COMM.bpirn Sep 23,2021 67 - Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: + Document Date: _ Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Signer's Name: _ ❑ Corporate Officer — Title(s): ❑Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑General ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑Attorney in Fact ❑ Individual ❑Attorney in Fact ❑Trustee ❑Guardian or Conservator ❑Trustee ❑Guardian or Conservator ❑ Other: ❑ Other: Signer Is Representing: Signer Is Representing: ScXA'1VyUq 02016 National Notary Association - www.NationalNotary.org - 1-800-US NOTARY(1-800-876-6827) Item#5907 J5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy, or validity of that document. State of Calif5�rria ) County of �Yf_s V�--o ) On D4 tAkniptx 4 before me, _ _ � d�_ 6 ,u P h([ Date Here Insert 1Qame and Ale of the Officer personally appeared _4A a*UyL_e r`lA-r -- --- - Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws C. to' of the State of California that the foregoing paragraph REED Commission#2136955 is true and correct. Notary Public-California WITNESS my hand and official seal. Fresno County M Comm.Ex iris Dec 30.2019 Signature_ (Leek-e _- Signature of Notary Public Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: _.,--.- Document Date: _ Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: —__ Signer's Name:-_..— ❑ Corporate Officer — Title(s): __- _ C I Corporate Officer — Title(s): — ❑ Partner — ❑ Limited ❑ General C.I Partner — CI Limited P General ❑ Individual 1 Attorney in Fact ❑ Individual ! I Attorney in Fact ❑Trustee I--1 Guardian or Conservator C I Trustee Guardian or Conservator ❑ Other: _ ❑ Other: Signer Is Representing: Signer Is Representing: . ©2014 National Notary Association - www.NationalNotary.org - 1-800-US NOTARY(1-800-876-6827) Item #5907 EXHIBIT A SITE MAP AN � c a c� d S. ORANGE A VE. a IIII j ' xis � �a f' ur V r + r , , �. ryl SEVENTH ry� GyS. ST. p z S. SEVENTH ST. ti p Re , r i oie q�r jq iq • ,o !t'* 71 ''^^ r - , , m 0 to ----------- --- S. EIGHTH ST. s y Y.H. 71e - SY 75' n 7Y rr 13! V.H. w y n S. NINTH ST. $ -+ 1. 7119 i5 kV OR � O O O O T O O O O O m f� C3 O S. C� OrY m SAC. t NINTH EXHIBIT A-1 LEGAL DESCRIPTION PARCEL 1 APN 470-052-01 T, 02T, & 03T Grant Deed All of Lots 4 through 23, inclusive in Block 2 of the Lincoln Hills Addition to the Town, (now City of Fresno), according to the map of Lincoln Hills Addition, on file in Volume 1 of Plats, at Page 71, Fresno County Records. TOGETHER WITH the alley adjacent to Lots 4 through 23, inclusive in Block 2 of the Lincoln Hills Addition to the Town, (now City of Fresno), according to the map of Lincoln Hills Addition, on file in Volume 1 of Plats, at Page 71, Fresno County Records, as abandoned by the Board of Supervisors of Fresno County by resolution recorded December 16, 1896 in Volume "I" of Deeds, at Pages 347 through 349, Official Records Fresno County. ALSO TOGETHERWITH Lots 1 through 7, inclusive in Block 8, Lots 1 through 4, inclusive in Block 9, and Lots 1 through 10, inclusive in Block 10 of Kenmore Park, according to the map thereof filed November 8, 1911 in Book 7 of Record of Surveys, at Page 4, Fresno County Records. Containing an area of 3.39 acres, more or less. 2018- Plat 2759 Ref: EXHIBIT B SCOPE OF DEVELOPMENT AND BASIC DESIGN A mixed use development with retail and live work building areas blending office with residential units consistent with the General Plan, Ventura Avenue-Kings Canyon Road Corridor goals. The Ventura Avenue—Kings Canyon Corridor is envisioned to be developed with areas of multi-family housing facing directly on the street and retail centers integrated with housing at the one-mile and half-mile road intersections. Much of the Corridor is expected to evolve as a Main Street environment which includes active storefronts, outdoor seating, and pedestrian oriented design. The development will use an architectural style which combines old world with modern materials. 'Except as set forth in this Agreement, before Developer begins constructing the Improvements or undertakes any other work of improvements on the Property, Developer, at its own cost and expense, will independently secure all land use and other entitlements, permits, and approvals that City or any other governmental agency with jurisdiction over the Project requires for construction of the Project. EXHIBIT C PERFORMANCE SCHEDULE* Items Completed Time for Performance Estimated Date City of Fresno City Council November 2018 consideration of Disposition and Development Agreement (DDA) Execution of DDA Within fifteen days after November 2018 approval of DDA by City Council and receipt and approval of insurance certificates and receipt of executed documents from Developer. Due Diligence Period Within 150 days following November 2018 Commencement the effective date of the DDA Escrow Opens Within five days following November 2018 the effective date of the DDA Due Diligence Period Completion April 2019 (Estimated) Submission of Building Plans for November 2019 Planning and Building Review for all phases Escrow Closes Within thirty days of December 31, approval of all land use and 2019 other entitlements, permits, and approvals that City or any other governmental agency with jurisdiction over the Project requires for construction of the Project. Commencement of Construction of January 2020 Developer's Improvements. Within thirty days after receipt of building permits by the Developer, construction shall commence on the improvements to be constructed on the Project Site. Completion of Construction of �! January 2022 Developer's Improvements. The Developer shall complete construction of the improvements to be constructed on the Project Site. Issuance — Certificate of Completion. Promptly after completion of January 2022 City shall furnish the Developer with all construction and upon a Certificate of Completion on the written request thereof by Project. the Developer. * These dates are subject to any extension based upon the extension terms expressly provided in the DDA. 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, CA 93721 No Fee-Govt. Code Sections 6103-27383 (SPACE ABOVE THIS LINE FOR RECORDER'S USE) APNs: This Release of Construction Covenants and Certificate of Completion are 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 , 20 , entered by the CITY OF FRESNO, a municipal corporation, (CITY), and (DEVELOPER), CITY conveyed certain real property to DEVELOPER under a Grant Deed, dated ,20 , recorded in the Official Records of Fresno County on 20 ,as Document No. (the DEED), and the DEVELOPER agreed to complete/cause the completion of the 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 , 20 ,as Instrument No. 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. D. 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. E. CITY'S issuance of this Release of Construction Covenants and Certificate 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. 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 Project]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. [SIGNATURE PAGE TO FOLLOW] `� f IN WITNESS WHEREOF, AGENCY has executed this Release of Construction Covenants and Certificate of Completion as of this day of , 20 CITY OF FRESNO, A municipal corporation By: Its: Owner hereby consents to recording this Certificate of Completion against the Property described herein. Dated: 201 DEVELOPER By: Name- Title: THE ABOVE PARTIES ARE TO SIGN THIS INSTRUMENT BEFORE A NOTARY PUBLIC. ATTEST: APPROVED AS TO FORM: YVONNE SPENCE, MMC DOUGLAS T. SLOAN City Clerk City Attorney By: By: Deputy Tracy N. Parvanian Senior Deputy City Attorney Dated: Dated: EXHIBIT E FREE RECORDING REQUESTED BY AND AFTER RECORDATION RETURN TO: City of Fresno Attention: City Manager 2600 Fresno Street Fresno, CA 93721 (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 - (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 , 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 12995 of the 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 under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property. 2. a. Grantee will take all commercially reasonable precautions to prevent the release into the environment of any Hazardous Materials (as defined in the DDA) in, on or under the Property. Grantee will comply with all governmental requirements with respect to Hazardous Materials. b. Until a Certificate of Completion is recorded as to the Property/portion thereof, Grantee will notify Grantor and give Grantor a copy or copies of all environmental permits, disclosures, applications, entitlements or inquiries relating to the Property including, without limitation, notices of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist orders, reports filed pursuant to self- reporting requirements, and reports filed or applications made pursuant to any 1 governmental requirement relating to Hazardous Materials and underground tanks. Immediately after each incident, Grantee will report any unusual or potentially important incidents respecting the environmental condition of the Property to Grantor. C. If 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 violation, or alleged violation of any statute, ordinance, order, rule, regulation, permit judgment or license relating to any use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in or about, to or from the Property. This indemnity will include, without limitation, any damage, liability, fine, penalty, parallel 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 ("CERCLA"), 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. 2 ��v 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. If 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. IN WITNESS WHEREOF,the Grantor has caused this instrument to be executed on its behalf by its respective officers thereunto duly authorized, this day of 2018. "GRANTOR" CITY OF FRESNO a municipal corporation By: Its: Date: 3 ATTACHMENT NO. 1 GRANT DEED LEGAL DESCRIPTION OF THE PROPERTIES q4 EXHIBIT F HOUSING SUCCESSOR GRANT DEED FREE RECORDING REQUESTED BY AND AFTER RECORDATION RETURN TO: City of Fresno, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno Attention: Executive Director 848 M Street, 3rd Floor Fresno, CA 93721 (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, in its capacity as the Housing Successor to the Redevelopment Agency of the City of Fresno(Grantor), hereby grants to- . (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 , 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 12995 of the 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 under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property. 2. a. Grantee will take all commercially reasonable precautions to prevent the release into the environment of any Hazardous Materials (as defined in the DDA) in, on or under the Property. Grantee will comply with all governmental requirements with respect to Hazardous Materials. b. Until a Certificate of Completion is recorded as to the Property/portion thereof, Grantee will notify Grantor and give Grantor a copy or copies of all environmental permits, disclosures, applications, entitlements or inquiries relating to the Property including, without limitation, notices of violation, notices to comply, citations, inquiries, clean-up or abatement orders, cease and desist orders, reports filed pursuant to self- reporting requirements, and reports filed or applications made pursuant to any governmental requirement relating to Hazardous Materials and underground tanks. Immediately after each incident, Grantee will report any unusual or potentially important incidents respecting the environmental condition of the Property to Grantor. C. If 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 violation, or alleged violation of any statute, ordinance, order, rule, regulation, permit judgment or license relating to any use, generation, release, discharge, storage, disposal, or transportation of Hazardous Materials on, under, in or about, to or from the Property. This indemnity will include, without limitation, any damage, liability, fine, penalty, parallel 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 ("CERCLA"), 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. If 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. IN WITNESS WHEREOF, the Grantor has caused this instrument to be executed on its behalf by its respective officers thereunto duly authorized, this day of 20% "GRANTOR" CITY OF FRESNO a municipal corporation, in its capacity as Housing Successor to the Redevelopment Agency of the City of Fresno By: Its: Date: ATTACHMENT NO. 1 GRANT DEED LEGAL DESCRIPTION OF THE PROPERTY