Res 19-013RESOLUTION NO. 19-013
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, APPROVING (I) A PURCHASE, SALE,
AND DEVELOPMENT AGREEMENT WITH POWAY COMMONS,
LLC, FOR CITY -OWNED PROPERTIES BEARING ASSESSOR'S
PARCEL NUMBER 317-472-18, 317-472-23, 317-472-24, 317-
472-25 AND THE NORTHERLY APPROXIMATELY .64 ACRES
OF 317-101-06, AND (II) A PROPERTY EXCHANGE
IMPLEMENTATION AGREEMENT BETWEEN THE CITY AND
THE CITY OF POWAY HOUSING AUTHORITY
WHEREAS, the City of Poway (the "City") is a municipal corporation and general law city
duly organized and existing under and pursuant to the Constitution and laws of the State of
California;
WHEREAS, the City is authorized to "control, dispose of, and convey" public property for
"the benefit of the city" (Gov. Code Section 37351);
WHEREAS, the City is also authorized to sell property to create an economic opportunity
(Gov. Code Section 52201);
WHEREAS, the City is the fee title owner of five (5) parcels comprising approximately 4.56
acres of real property generally located at 13100 Poway Road and bearing Assessor's Parcel
Number 317-101-06, 317-472-18, 317-472-23, 317-472-24 and 317-472-25 (the "City Parcels"),
in the City of Poway, County of San Diego, State of California;
WHEREAS, the City of Poway Housing Authority (the "Authority") is the fee title owner of
two (2) parcels comprising approximately 2.91 acres of real property generally located at 13021
and 13031 Poway Road and bearing Assessor's Parcel Numbers 317-472-01 and 317-472-06
(the "Housing Authority Parcels"), in the City of Poway, County of San Diego, State of California;
WHEREAS, the Housing Authority Parcels and the City Parcels (with the exception of the
southernmost approximately .9 acres of Assessor's Parcel Number 317-101-06 of the City
Parcels, referred to hereinafter as the "Affordable Parcel") are collectively referred to as the
"Properties", and are identified on the Vicinity Map, which is included as Exhibit A to this
Resolution;
WHEREAS, the City retained Integra Realty Resources to prepare an MAI appraisal of the
Properties, which identified the current full fair market value of the Properties as $5,579,091;
WHEREAS, the Properties are currently zoned for the Poway Road Specific Plan
("Specific Plan"), are designated as Town Center, and allow general commercial and multi -family
residential uses;
Resolution No. 19-013
Page 2
WHEREAS, City staff have negotiated a Purchase, Sale, and Development Agreement
(the "PSDA") with Poway Commons, LLC, a California limited liability company ("Developer"),
pursuant to which the City would sell the Properties to Developer for a purchase price of
$6,400,500, and the Developer would be required to develop the Properties with a commercial
retail development and residential uses permitted by, and in compliance with, the development
standards set forth in, the Specific Plan (the "Project"), all as more particularly described in the
PSDA;
WHEREAS, pursuant to the PSDA, the Developer would be required to perform certain
improvements to the Properties, including demolishing existing buildings, removing hazardous
materials, and remediating contaminated soil, and would also be required to maintain the
completed development in a good condition and repair;
WHEREAS, pursuant to the PSDA, City would make a loan to the Developer to assist in
the purchase of the Properties and the Developer would be required to execute a note evidencing
its obligation to repay the City loan, with interest compounded monthly, with such repayment due
in full on the fourth anniversary of the note;
WHEREAS, concurrently with the negotiation of the PSDA, Housing Authority staff have
negotiated an Affordable Housing and Property Disposition Agreement with the Developer (the
"AHPDA"), pursuant to which the Housing Authority would sell to the Developer the Affordable
Parcel, for the Developer's subsequent sale (after establishing the Affordable Parcel as a
separate legal parcel and performing certain grading and infrastructure work on the Affordable
Parcel) to a limited partnership established by Chelsea Investment Company, an experienced
affordable housing developer, or similarly qualified affordable housing developer acceptable to
the Authority (an "Affordable Developer"), and for the Affordable Developer's development and
operation on the Affordable Parcel of a 44 unit senior affordable housing development;
WHEREAS, City and Authority staff have determined that the proposed AHPDA and
PSDA reflect the optimal development potential of the Affordable Parcel and Properties;
WHEREAS, to facilitate the implementation of the AHPDA and PSDA, City and Authority
staff have prepared a Property Exchange Implementation Agreement, pursuant to which,
concurrently with the close of escrow under the AHPDA and PSDA, (i) the City would transfer the
Affordable Parcel to Authority, (ii) Authority would transfer the Housing Authority Parcels to the
City, and (iii) the City would deposit into the Authority's Low and Moderate Income Housing Asset
Fund the sum of One Million Four Hundred Ninety -Three Thousand Three Hundred Five Dollars
($1,493,305), which is the difference between the value of the Affordable Parcel and the Housing
Authority Parcels;
WHEREAS, Government Code 52201 requires that the City prepare a Summary Report
to consider the financial terms of the transaction, as set forth in the PSDA, that the City Council
conduct a noticed public hearing with respect to the PSDA, and that the approval of the PSDA be
accompanied by certain findings and determinations as set forth herein;
WHEREAS, a Summary Report for the PSDA has been prepared and the public hearing
has been conducted in accordance with applicable requirements of law;
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WHEREAS, the City Council has considered all the information and evidence set forth in
the Summary Report presented by City staff and presented by persons wishing to appear and be
heard concerning the impact of the PSDA on the City;
WHEREAS, the PSDA is of benefit to and in the best interests of the City of Poway; and
WHEREAS, City staff recommend that the City Council find and determine that the
environmental impacts of the contemplated development of the parcels subject to the AHPDA
and PSDA (the "Retail/Residential and Affordable Projects") are fully analyzed in and covered by
the previously certified Poway Road Specific Plan ("PRSP") environmental impact report ("EIR";
SCH# 2017031035), and that the City, by approving this resolution, is not committing itself nor
the City Council to approve any of the entitlements required for the Retail/Residential and
Affordable Projects, and instead both the City and Housing Authority retain the discretion to deny
the Retail/Residential and Affordable Projects, which will still be subject to further environmental
review pursuant to the California Environmental Quality Act ("CEQA") to ensure the PRSP EIR
covers all of the Retail/Residential and Affordable Projects' impacts, and no conditions set forth
in Public Resources Code section 21166 and CEQA Guidelines section 15162 exist.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Poway as
follows:
Section 1: The foregoing recitals are true and correct and are a substantive part of
this Resolution.
Section 2: The environmental impacts of the Retail/Residential and Affordable
Projects are fully analyzed in and covered by the previously certified PRSP EIR (SCH#
2017031035), and no conditions set forth in Public Resources Code section 21166 and CEQA
Guidelines section 15162 exist.
Section 3: Notwithstanding the foregoing, the City Council retains all discretion to
deny any entitlements required for the Retail/Residential and Affordable Projects. The
Retail/Residential and Affordable Projects will be subject to further environmental review pursuant
to CEQA ensure the PRSP EIR covers all of the Retail/Residential and Affordable Projects'
impacts, and no conditions set forth in Public Resources Code section 21166 and CEQA
Guidelines section 15162 exist.
Section 4: The City Council hereby finds and determines that the purchase price for
the Properties pursuant to the PSDA is not less than the fair market value of the Properties at
their highest and best use.
Section 5: The City Council hereby finds and determines that the PSDA will assist in
the creation of economic opportunity in that the PSDA will create at least one full-time equivalent,
permanent job after full capacity and implementation.
Section 6: The City Council approves the PSDA and the sale of the Properties to the
Developer for the purchase price of $6,420,500, which purchase price is not less than the full fair
market value of the Properties, pursuant to the PSDA, a copy of which is attached hereto as
Exhibit B.
Section 7: The City Council approves the Property Exchange Implementation
Agreement, a copy of which is attached hereto as Exhibit C.
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Section 8: The City Council authorizes and directs the City Manager and City Attorney
to make final modifications to the PSDA and Property Exchange Implementation Agreement that
are consistent with the substantive terms of the PSDA and Property Exchange Implementation
Agreement approved hereby, and to thereafter sign the PSDA and Property Exchange
Implementation Agreement on behalf of the City.
Section 9: The City Council authorizes and directs the City Manager to (i) sign such
other and further documents, including but not limited to escrow instructions, that require the City's
signature, and (ii) take such other and further actions, as may be necessary and proper to carry
out the terms of the PSDA and Property Exchange Implementation Agreement.
Section 10: This Resolution shall take effect from and after its adoption.
PASSED, ADOPTED AND APPROVED by the City Council of the City of Poway,
California, at a regular meeting this 19th day of March 2019.
Steve Vaus, Mayor
ATTEST:
Faviola Medina, CMC, City Clerk
STATE OF CALIFORNIA )
SS
COUNTY OF SAN DIEGO )
I, Faviola Medina, City Clerk of the City of Poway, California, do hereby certify under
penalty of perjury that the foregoing Resolution No. 19-013 was duly adopted by the City Council
at a meeting of said City Council held on the 19th day of March 2019, and that it was so adopted
by the following vote:
AYES: LEONARD, FRANK, GROSCH, VAUS
NOES: NONE
ABSENT: NONE
DISQUALIFIED: MULLIN
Faviola Medina, CMC, City Clerk
City of Poway
Resolution No. 19-013
Page 5
Exhibit A
Vicinity Map
Resolution No. 19-013
Exhibit B
PURCHASE, SALE, AND DEVELOPMENT AGREEMENT
by and between
CITY OF POWAY
a California municipal corporation,
and
POWAY COMMONS, LLC
a Delaware limited liability company
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PURCHASE, SALE, AND DEVELOPMENT AGREEMENT
THIS PURCHASE, SALE, AND DEVELOPMENT AGREEMENT (this
"Agreement") is dated as of , 2019 (the "Effective Date"), and is entered into
by and between POWAY COMMONS, LLC, a Delaware limited liability company
("Developer"), and the CITY OF POWAY, a California municipal corporation (the "City").
City and Developer enter into this Agreement with reference to the following recited facts
(each a "Recital"):
RECITALS
A. City owns fee title to that certain real property located in the City of Poway,
County of San Diego, State of California, commonly known as APN Nos. 317-472-18,
23, 24 & 25 (collectively, the "City -Owned Property").
B. City also owns fee title to that certain real property located in the City of
Poway, County of San Diego, State of California, commonly known as APN No. 317-101-
06 (the "City -Owned Mixed Property").
C. Concurrently with the execution of this Agreement, City is entering into an
agreement with the City of Poway Housing Authority ("Authority") to acquire that certain
real property located in the City of Poway, County of San Diego, State of California,
commonly known as APN No. 317-472-01 & 06 (the "Authority -Owned Property").
D. Developer has entered into purchase and sale agreements (the "Private
Parcels Purchase Agreements") with the owners of the real property located at 13029,
13117, and 13126 Poway Road, in the City of Poway, County of San Diego, State of
California (collectively, the "Private Parcels").
E. City and Developer desire by this Agreement for (i) Developer to close
escrow under the Private Parcels Purchase Agreements and acquire fee title to the
Private Parcels; (ii) City to sell to Developer fee title to the "City Parcels," which is
comprised of (a) the City -Owned Property, (b) the City -Owned Mixed Property, other than
approximately nine tenths (.9) acres located in the southernmost portion of the parcel,
and (c) the Authority -Owned Property; (iii) Developer to (a) process through City one or
more subdivision maps to create (1) from the southernmost nine tenths (.9) acre portion
of the City -Owned Mixed Property, the "Affordable Housing Parcel", (2) a subdivision
containing approximately four (4) parcels (collectively, the "Residential Parcels") for
development thereon of a residential condominium development containing ninety-eight
(98) condominium units and common area improvements and amenities to serve such
units (collectively, the "Residential Development"), and (3) approximately two
(2) parcels (the "Retail Parcels"); and (b)(1) construct on the Residential Parcels the
Residential Development, and (2) diligently pursue and attempt to plan and develop a
comprehensive retail development that includes the Retail Parcels and certain other real
property within the City of Poway, County of San Diego, State of California, encompassing
a minimum of twenty-five thousand square feet (25,000 sf) (a "Comprehensive Retail
Development").
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F. The City -Owned Property, the City -Owned Mixed Property, and the
Authority -Owned Property are legally described in Attachment No. 1, which is attached
hereto and incorporated herein by this reference.
G. The City -Owned Property, the City -Owned Mixed Property, the Authority -
Owned Property, and the Private Parcels are depicted on the area site map attached
hereto and incorporated herein as Attachment No. 2A (the "Area Site Map").
H. The proposed subdivisions and locations of the Affordable Housing Parcel,
Residential Parcels, and Retail Parcels are depicted on the proposed subdivision map
attached hereto and incorporated herein as Attachment No. 2B (the "Proposed
Subdivision Map").
City's disposition of the City Parcels to Developer, and Developer's
subsequent construction and completion of the "Project" (as that term is defined in
Article II below), pursuant to the terms of this Agreement, are in the vital and best interest
of the City of Poway and the health, safety and welfare of its residents, and in accord with
the public purposes and provisions of applicable federal, state, and local laws and
requirements.
NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION AND THE
PROMISES AND COVENANTS OF THE PARTIES SET FORTH IN THIS AGREEMENT,
CITY AND DEVELOPER AGREE, AS FOLLOWS:
ARTICLE I
RECITALS AND IDENTITIES OF PARTIES
Section 1.1 Incorporation of Recitals. The Recitals of fact set forth above are
true and correct and are incorporated into this Agreement in their entirety by this
reference.
Section 1.2 Parties to the Agreement. The Parties to this Agreement are City
and Developer.
Section 1.3 Restrictions on Change in Management or Control of Developer
and Assignment or Transfer.
(a) Developer acknowledges that the qualifications and identity of
Developer are of particular importance to City. Developer further recognizes and
acknowledges that City has relied and is relying on the specific qualifications and identity
of Developer in entering into this Agreement with Developer and, as a consequence,
Transfers are permitted only as expressly provided in this Agreement.
(b) Developer shall promptly notify City in writing of any and all changes
whatsoever in the identity of the business entities or individuals either comprising or in
control of Developer, as well as any and all changes in the interest or the degree of control
of Developer by any such person, of which information Developer or any of its partners,
members or officers are notified or may otherwise have knowledge or information. If there
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is any Transfer, whether voluntary or involuntary, in membership, ownership,
management or control of Developer (other than such changes occasioned by the death
or incapacity of any individual) other than a Permitted Transfer or a Transfer that has
been approved in writing by City prior to the time of such Transfer, then prior to the Project
Completion Date City may exercise any remedy available to City under the terms of this
Agreement; provided, however, that (i) City shall first notify Developer in writing of its
intention to terminate this Agreement or to exercise any other remedy, and (ii) Developer
shall have twenty (20) calendar days following its receipt of such written notice to
commence and, thereafter, diligently and continuously proceed to cure the default of
Developer and submit evidence of the initiation and satisfactory completion of such cure
to City, in a form and substance reasonably satisfactory to City.
(c) Except for Permitted Transfers or as otherwise set forth in this
Section 1.3, and notwithstanding any provision to the contrary in this Agreement, prior to
the Project Completion Date, Developer shall not sell, assign, convey, create any trust
estate with respect to or otherwise Transfer any of its interests in this Agreement, the
Property, and/or the Project, without the prior written approval of the City Manager, which
approval shall not be unreasonably conditioned, delayed, or denied; this restriction shall
not apply on and after the Project Completion Date. Developer recognizes that the
qualifications and identity of Developer are of particular concern to City and that a sale,
assignment, conveyance with respect to or other Transfer of any of Developer's interests
in this Agreement, the Property, and/or the Project is for all practical purposes a transfer
or disposition of the responsibilities of Developer with respect to this Agreement, the
Property, and/or the Project and, therefore, are only allowed in accordance with the
provisions of this Section 1.3. Except as expressly permitted in this Agreement,
Developer represents and agrees that it has not made and will not create or suffer to be
made or created, any Transfer, either voluntarily, involuntarily or by operation of law,
without the prior written approval of City, until after the Project Completion Date. Any
Transfer made in contravention of this Section 1.3 shall be voidable at the election of City
and, if voided, shall be deemed to be an Event of Default by Developer, whether or not
Developer knew of or participated in such Transfer.
(d) Subject to the terms of paragraph (c) above in this Section 1.3,
Developer is not required to give City advance notice of, nor shall City have the right to
approve, a Permitted Transfer. Additionally, City may, in its reasonable discretion,
approve in writing any other Transfer (meaning, a Transfer that is not a Permitted
Transfer) requested by Developer, provided the proposed transferee can satisfactorily
demonstrate successful experience in the development of a project of the same type as
the Project, acquires fee title to the Property, and expressly assumes in writing all of the
obligations of the Developer under this Agreement. Further, Developer may allow an
investor to acquire an ownership interest in Developer, and/or Developer may assign (a)
all of its rights and obligations under this Agreement, (b) all of its rights and obligations
with respect to the Retail Parcels and the Comprehensive Retail Development, or (c) all
of its rights and obligations with respect to (I) obtaining all of the Entitlements, (II) the
Residential Parcels, (III) the Residential Development, and (IV) performance of all
demolition and grading activities required by this Agreement to be performed on or with
respect to the Property, to an entity in which Developer or an Affiliate thereof and an
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March 19, 2019 Item #3.1
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investor are the sole owners, provided (i) City approves the investor, and (ii) Poway
Commons, LLC, a Delaware limited liability company, or an Affiliate thereof, retains
control of the day-to-day operations of the development of the Project. City shall be
required to approve any proposed investor that provides evidence to City that it (1) is a
Person that has been legally established and is operating in good standing in the
jurisdiction in which it has been established, (2) has experience in developing and/or
financing development projects similar in nature to the Project, and (3) has the financial
capability to undertake the obligations proposed to be undertaken pursuant to the
contractual arrangement between said investor and Developer. All instruments and other
legal documents proposed to effect any Transfer shall be submitted to City for review,
prior to the Transfer, and the written approval or disapproval of City shall be provided to
Developer, within fifteen (15) calendar days of City's receipt of Developer's request.
(e) The provisions of this Section 1.3 shall terminate and be of no further
force and effect upon issuance of a Release of Construction Covenants for the Project.
(f) Upon an approved or Permitted Transfer of the Property by
Developer prior to the Project Completion Date or any Transfer thereafter, Developer shall
be deemed released from any obligations under this Agreement except for any
indemnification obligations with respect to Claims based on actions and/or inactions
occurring prior to such Permitted Transfer.
ARTICLE II
DEFINITIONS
Section 2.1 Defined Terms. In addition to the usage of certain words, terms or
phrases that are defined in the initial paragraph or Recitals of this Agreement, the
following words, terms and phrases are used in this Agreement, including in ARTICLE I
above, unless the particular context of usage of a word, term or phrase requires another
interpretation:
(a) "13033 Poway Road Parcel" means and refers to the portion of the
City Parcels located at 13033 Poway Road.
(b) "Additional Deposit" means and refers to the amount of One
Hundred Twenty -Five Thousand Dollars ($125,000), in cash or other immediately
available funds.
(c) "Affiliate" means and refers to any Person, directly or indirectly,
Controlling or Controlled by or under common Control with Developer, whether by direct
or indirect ownership of equity interests, by contract or otherwise.
(d) "Affordable Housing Parcel" means and refers to the southernmost
portion of the City -Owned Mixed Property, which is designated as the "Affordable Housing
Parcel" on the Proposed Subdivision Map. The Affordable Housing Parcel comprises
approximately nine tenths (.9) acres. Notwithstanding anything in this Agreement to the
contrary, the Affordable Housing Parcel shall not comprise a portion of the City Parcels
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or the Property, and the disposition and development of the Affordable Housing Parcel
shall be addressed in the AHPDA.
(e) "AHPDA" means and refers to that certain Affordable Housing and
Property Disposition Agreement entered into between the Authority and Developer on or
about the Effective Date, pursuant to which the Authority has agreed to sell to Developer
the Affordable Housing Parcel, and Developer has agreed to perform certain grading and
infrastructure work, and to thereafter transfer the Affordable Housing Parcel and assign
its rights and obligations under the AHPDA to a limited partnership in which any of
(i) Chelsea Investment Corporation, a California nonprofit public benefit corporation
("Chelsea"), (ii) an affiliate of Chelsea, or (iii) another entity experienced in the
development and operation of affordable housing and acceptable to the Authority in the
Authority's reasonable discretion, is a general partner, for said limited partnership to
develop and operate on the Affordable Housing Parcel a forty-four (44) unit affordable
senior rental apartment development.
(f) "Authority" means and refers to the City of Poway Housing
Authority.
(g) "CEQA" means and refers to the California Environmental Quality
Act, Public Resources Code Section 21000, et seq.
(h) "CEQA Claims" means and refers to any appeals or protests
(including litigation) taken or filed with respect to City's findings, determinations, and/or
certifications pursuant to CEQA in connection with City's approval of this Agreement and
in connection with City's approval, conditional approval, or denial, of the Entitlements.
(i) "City" means and refers to the City of Poway, California.
(j) "City and City Personnel" means and refers, collectively, to City, its
elected and appointed officials, commissions, employees, agents, representatives, and
attorneys.
(k) "City Deed of Trust" means and refers to a deed of trust
substantially in the form of Attachment No. 8 to this Agreement, securing Developer's
obligation to repay the City Note. The City Deed of Trust shall be recorded against the
Retail Parcels.
(I) "City Grant Deed" means and refers to a grant deed substantially in
the form of Attachment No. 5 to this Agreement, conveying all of City's interest in the
Property to Developer.
(m) "City Loan " means and refers to the loan to be made by City at the
Close of Escrow, in the amount of One Million Seven Hundred Thousand Dollars
($1,700,000). The City Loan shall be provided to Developer in the form of a credit towards
Developer's payment of the Purchase Price.
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(n) "City Manager" means and refers to the person duly appointed to
the position of City Manager of the City or his or her designee or successor in function.
(o) "City Note" means and refers to a note substantially in the form of
Attachment No. 7 to this Agreement, evidencing the City Loan.
(p) "City -Owned Mixed Property" shall have the meaning ascribed
thereto in Recital B. The City -Owned Mixed Property comprises approximately one and
fifty-four hundredths (1.54) acres. The City -Owned Mixed Property is legally described in
Attachment No. 1, which is incorporated herein by this reference.
(q) "City Parcels" shall have the meaning ascribed thereto in Recital A.
The City Parcels comprise approximately three and two hundredths (3.02) acres. The
City Parcels are legally described in Attachment No. 1, which is attached hereto and
incorporated herein by this reference. Notwithstanding anything to the contrary in this
Agreement, the City Parcels shall not include the Affordable Housing Parcel. The
Affordable Housing Parcel shall be conveyed to Developer pursuant to the AHPDA.
(r) "City's Right of First Refusal" means and refers to City's right to
acquire all or any portion of the Property pursuant to the terms set forth in Section 10.6
below.
(s) "City's Title Notice Response" means and refers to the written
response of City to Developer's Title Notice, in which City elects to (i) cause the removal
from the Preliminary Report of some or all of the disapproved exceptions, or (ii) not to
cause the removal from the Preliminary Title Report of any disapproved exceptions.
(t) "City's Title Policy" means and refers to a standard ALTA lenders'
policy of title insurance issued by the Title Company, with coverage in the full amount of
the City Loan and insuring the priority of the City Loan.
(u) "Claims" means any and all claims, losses, costs, damages,
expenses, liabilities, liens, actions, causes of action (whether in tort or contract, at law or
in equity, or otherwise), charges, awards, assessments, fines, and penalties of any kind
(including consultant and expert expenses, court costs, and reasonable attorney's fees
of counsel retained by the City Parties, expert fees, costs of staff time, and investigation
costs, of whatever kind or nature), and judgments, including, but not limited to, Claims
for: (1) injury to any person (including death at any time resulting from that injury); (2) loss
of, injury or damage to, or destruction of, property (including all loss of use resulting from
that loss, injury, damage, or destruction) regardless of where located, including the
property of the City Parties; (3) any workers' compensation or prevailing wage
determination; and (4) all economic losses and consequential or resulting damage of any
kind.
(v) "Close of Escrow" means and refers to the recording of the City
Grant Deed in the Official Records of the Recorder of the County of San Diego, California,
and completion of each of the actions set forth in ARTICLE IV by the Escrow Holder for
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City to sell the City Parcels to Developer and Developer to purchase the City Parcels from
City.
(w) "Comprehensive Retail Development" shall have the meaning
ascribed thereto in Recital C.
(x) "Control" means and refers to possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a Person,
whether by ownership of equity interests, by contract or otherwise.
(y)
having Control.
Section 5.12.
"Controlling" and "Controlled" mean and refer to exercising or
(z) "Developer CC&Rs" shall have the meaning ascribed thereto in
(aa) "Developer's Second Title Notice" means and refers to a written
notice from Developer to City indicating Developer's continued disapproval of specific
matters shown in Schedule B of the Preliminary Title Report or Supplement Report, as
exceptions to coverage under the proposed Developer's Title Policy for the City Parcels,
describing in suitable detail the actions that Developer reasonably believes are necessary
to obtain Developer's approval of the state of the title to the City Parcels.
(bb) "Developer's Title Notice" means and refers to a written notice from
Developer to City indicating Developer's acceptance of the state of the title to the City
Parcels, as described in the Preliminary Report or Supplemental Report, or Developer's
disapproval of specific matters shown in Schedule B of the Preliminary Report or
Supplemental Report, as exceptions to coverage under the proposed Developer's
Title Policy for the City Parcels, describing in suitable detail the actions that Developer
reasonably believes are necessary to obtain Developer's approval of the state of the title
to the City Parcels.
(cc) "Developer's Title Notice Waiver" means and refers to a written
notice from Developer to City waiving Developer's previous disapproval in the
Developer's Title Notice of specific matters shown in Schedule B of the Preliminary
Report or in the Supplemental Report as exceptions to coverage under the proposed
Developer's Title Policy for the City Parcels.
(dd) "Developer's Title Policy" means and refers to a standard ALTA
owners' policy of title insurance issued by the Title Company, with coverage in the full
amount of the Purchase Price and insuring fee title to the City Parcels vested in the
Developer; provided, however, that Developer shall have the right, at Developer's sole
cost, to elect to obtain title endorsements and/or an extended coverage ALTA owner's
policy, as further set forth in Section 4.8 below.
(ee) "Development Agreement" means and refers to a Development
Agreement entered into or to be entered into between City and Developer pursuant to
Government Code section 65864 et seq., in a form acceptable to City and Developer.
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(ff) "Due Diligence Investigations" means and refers to Developer's
due diligence investigations of the City Parcels to determine the condition of the City
Parcels and the suitability of the City Parcels for development of the Project, and such
other matters as Developer may deem relevant.
(gg) "Due Diligence Investigation Conclusion Notice" means and
refers to a written notice of Developer delivered to both City and the Escrow Holder, prior
to the end of the Due Diligence Period, indicating Developer's acceptance of the City
Parcels or indicating Developer's rejection of the City Parcels and refusal to accept a
conveyance of fee title to the City Parcels, describing in reasonable detail the actions or
circumstances that Developer reasonably believes are necessary to allow Developer to
accept the City Parcels; provided, however, that Developer may, in its sole and absolute
discretion, determine not to accept the City Parcels without identifying any such actions
or circumstances.
(hh) "Due Diligence Period" means and refers to the time period of one
hundred twenty (120) continuous days commencing on the day immediately following the
Escrow Opening Date.
(ii) "Earnest Money Deposit" means and refers, collectively, to the
Initial Deposit and the Additional Deposit.
(jj) "Entitlement Approval Date" means the date that all of the
Entitlements have been approved by each required Governmental Agency and all appeal
and protest periods have expired with no appeals or protests (including litigation) taken
or filed ("Entitlement Claims"), or, if any are so taken or filed, then upon the resolution
of the Entitlement Claims upon terms acceptable to each of City and Developer, in their
respective sole and absolute discretion.
(kk) "Entitlements" means and refers to all of the discretionary
entitlements, permits and approvals required for the development of the Project,
including, without limitation, the Development Agreement, a Development Review and
Tentative Map.
(II) "Environmental Claims" means and refers to any and all claims,
demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of
action, judgments, suits, proceedings, costs, disbursements and expenses, including,
without limitation, attorney fees, disbursements and costs of attorneys, environmental
consultants and other experts, and all foreseeable and unforeseeable damages or costs
of any kind or of any nature whatsoever directly or indirectly relating to or arising from any
Environmental Matters existing or occurring during or arising from Developer's Due
Diligence Investigations, Developer's ownership or occupancy of the Property or
Developer's construction of the Project.
(mm) "Environmental Laws" means and refers to all federal, state, local,
or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or
requirements of any governmental authority regulating, relating to, or imposing liability or
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standards of conduct concerning any Hazardous Substance, or pertaining to occupational
health or industrial hygiene (to the extent that the occupational health or industrial hygiene
laws, ordinances, or regulations relate to any Hazardous Substance on, under, or about
the Property), occupational or environmental conditions on, under, or about the Property,
as now or may, at any later time, be in effect, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA") [42 U.S.C. Section 9601 et seq.]; the Resource Conservation and Recovery
Act of 1976 ("RCRA") [42 U.S.C. Section 6901 et seq.]; the Clean Water Act, also known
as the Federal Water Pollution Control Act ('FWPCA") [33 U.S.C. Section 1251 et seq.];
the Toxic Substances Control Act (TSCA") [15 U.S.C. Section 2601 et seq.]; the
Hazardous Materials Transportation Act (HMTA") [49 U.S.C. Section 1801 et seq.]; the
Insecticide, Fungicide, Rodenticide Act [7 U.S.C. Section 6901 et seq.] the Clean Air Act
[42 U.S.C. Section 7401 et seq.]; the Safe Drinking Water Act [42 U.S.C. Section 300f
et seq.]; the Solid Waste Disposal Act [42 U.S.C. Section 6901 et seq.]; the Surface
Mining Control and Reclamation Act [30 U.S.C. Section 101 et seq.]; the Emergency
Planning and Community Right to Know Act [42 U.S.C. Section 11001 et seq.]; the
Occupational Safety and Health Act [29 U.S.C. Section 655 and 657]; the California
Underground Storage of Hazardous Substances Act [Health and Safety Code
Section 25280 et seq.]; the California Hazardous Substances Account Act [Health and
Safety Code Section 25300 et seq.]; the California Safe Drinking Water and Toxic
Enforcement Act [Health and Safety Code Section 24249.5 et seq.] the Porter -Cologne
Water Quality Act [Water Code Section 13000 et seq.] together with any amendments of,
or regulations promulgated under the statutes cited above and any other federal, state,
or local law, statute, ordinance, or regulation, now in effect or later enacted, that pertains
to occupational health or industrial hygiene, and only to the extent the occupational health
or industrial hygiene laws, ordinances, or regulations relating to any Hazardous
Substance on, under, or about the Property, or the regulation or protection of the
environment, including ambient air, soil, soil vapor, groundwater, surface water, or land
use.
(nn) "Environmental Matters" means and refers to any of the following:
(1) The presence of any Hazardous Substances on, in, under,
from or affecting all or any portion of the Property or the Project;
(2) The storage, holding, handling, release, threatened release,
discharge, generation, leak, abatement, removal or transportation of any Hazardous
Substances on, in, under, from or affecting the Property or the Project;
(3) The violation of any law, rule, regulation, judgment, order,
permit, license, agreement, covenant, restriction, requirement or the like by Developer,
its agents or contractors, relating to or governing in any way Hazardous Substances on,
in, under, from or affecting the Property or the Project;
(4) The failure of Developer, its agents or contractors, to properly
complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations,
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covenants and the like in connection with Developer's activities on the Property or
regarding the Project;
(5) The implementation and enforcement by Developer, its
agents or contractors of any monitoring, notification or other precautionary measures that
may, at any time, become necessary to protect against the release, potential release or
discharge of any Hazardous Substances on, in, under, from or affecting the Property or
the Project;
(6) The failure of Developer, its agents or contractors, in
compliance with all applicable Environmental Laws, to lawfully remove, contain, transport
or dispose of any Hazardous Substances existing, stored or generated on, in, under or
from the Property or the Project;
(7) Any investigation, inquiry, order, hearing, action or other
proceeding by or before any Governmental Agency in connection with any Hazardous
Substances on, in, under, from or affecting the Property or the Project or the violation of
any Environmental Law relating to the Property. or the Project
(oo) "Escrow" means and refers to an escrow, as defined in Civil Code
Section 1057, that is conducted by the Escrow Holder with respect to the Property,
pursuant to this Agreement.
(pp) "Escrow Closing Date" means and refers to the earliest of: (1) a
date two (2) business days after the date that Developer is issued the first grading permit
for the Project, or fifteen (15) months after the Effective Date; provided, however, if any
of such dates is not a business day (meaning a day that documents can be placed of
record in San Diego County), then the applicable date shall be extended to the second
such business day thereafter. Developer shall have the right, but not the obligation and
upon five (5) days advance written notice to City, to extend the Escrow Closing Date for
two successive periods of one (1) month each.
(qq) "Escrow Holder" means and refers to First American Title Insurance
Company, with its offices at 4380 La Jolla Village Drive, Suite 200, San Diego, CA 92122.
(rr) "Escrow Opening Date" means and refers to the first date on which
a fully executed copy of this Agreement, the Initial Earnest Money Deposit is deposited
with the Escrow Holder.
(ss) "Event of Default" shall have the meaning ascribed to the term in
Section 9.2.
(tt) "FIRPTA Affidavit" means and refers to an affidavit complying with
Section 1445 of the United States Internal Revenue Code ("IRC 1445") evidencing that
neither Developer nor Escrow Holder is required to withhold City's closing funds pursuant
to IRC 1445.
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(uu) "First Phase" shall have the meaning ascribed to the term in Section
4.2(b)(17).
(vv) "Form 593" means and refers to a California Franchise Tax Board
Form 593-W evidencing that neither Developer nor Escrow Holder is required to withhold
City's closing funds pursuant to California Revenue and Taxation Code Section 18662e).
(ww) "Governmental Agency" means and refers to any and all courts,
boards, agencies, commissions, offices, or authorities of any nature whatsoever for any
governmental unit (federal, state, county, district, municipal, city, or otherwise), including
the City, pursuant to its general police power jurisdiction, whether now or later in existence
with jurisdiction over the Property or the construction of any portion of the Project.
(xx) "Governmental Requirements" means and refers to all codes,
statutes, ordinances, laws, permits, orders, and any rules and regulations promulgated
thereunder of any Governmental Agency.
(yy) "Hazardous Substance" means and refers to, without limitation,
substances defined as a "Hazardous Substance," "hazardous material," "toxic
substance," "solid waste," or "pollutant or contaminate" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Sections 9601, et seq.; the Toxic Substances Control Act ("TSCA") [15
U.S.C. Sections 2601, et seq.]; the Hazardous Materials Transportation Act, 49
U.S.C. Sections 1801, et seq.; the Resource Conservation and Recovery Act, 42
U.S.C. Sections 6901, et seq.; those substances listed in the United States Department
of Transportation (DOT) Table [ 49 CFR 172.101], or by the EPA, or any successor
authority, as a Hazardous Substance [ 40 CFR Part 302]; and those substances defined
as "hazardous waste" in Section 25117 of the California Health and Safety Code or,
as a "Hazardous Substance" in Section 25316 of the California Health and Safety Code;
other substances, materials, and wastes that are, or become, regulated or classified as
hazardous or toxic under federal, state, or local laws or regulations and in the regulations
adopted pursuant to said laws, and shall also include manure, asbestos, polychlorinated
biphenyl, flammable explosives, radioactive material, petroleum products, and
substances designated as a hazardous substance pursuant to 33 U.S.C. Section 1321 or
listed pursuant to 33 U.S.C. Section 1317.
(zz) "Initial Deposit" means and refers to the amount of One Hundred
Twenty -Five Thousand Dollars ($125,000), in cash or other immediately available funds.
(aaa) "Institutional Lender" means any of the following institutions
having assets or deposits in the aggregate of not less than One Hundred Million Dollars
($100,000,000): a California chartered bank; a bank created and operated under and
pursuant to the laws of the United States of America; an "incorporated admitted insurer"
(as that term is used in Section 1100.1 of the California Insurance Code); a "foreign (other
state) bank" (as that term is defined in Section 1700(1) of the California Financial Code);
a federal savings and loan association (Cal. Fin. Code Section 8600); a commercial
finance lender (within the meaning of Sections 2600 et seq. of the California Financial
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Code); a "foreign (other nation) bank" provided it is licensed to maintain an office in
California, is licensed or otherwise authorized by another state to maintain an agency or
branch office in that state, or maintains a federal agency or federal branch in any state
(Section 1716 of the California Financial Code); a bank holding company or a subsidiary
of a bank holding company which is not a bank (Section 3707 of the California Financial
Code); a trust company, savings and loan association, insurance company, investment
banker; college or university; pension or retirement fund or system, either governmental
or private, or any pension or retirement fund or system of which any of the foregoing shall
be trustee, provided the same be organized under the laws of the United States or of any
state thereof; and a Real Estate Investment Trust, as defined in Section 856 of the Internal
Revenue Code of 1986, as amended, provided such trust is listed on either the American
Stock Exchange or the New York Stock Exchange.
(bbb) "Lender" means and refers to any person or entity making a Loan to
Developer.
(ccc) "Loan" means and refers, individually, to any loan that Developer
shall obtain, the proceeds of which are to be used and applied solely to pay the
reasonable costs of obtaining such loan and: (1) the Purchase Price and the other costs
of acquiring the Property through the Escrow and/or (2) the costs of developing the
Project.
(ddd) "Memorandum of Agreement" means and refers to the
memorandum in substantially the form of Attachment No. 6 to this Agreement to be
recorded against the Property at the Close of Escrow to provide constructive record notice
of the existence and application of this Agreement to the Property.
applicable.
(eee) "Party" means and refers, individually, to either City or Developer, as
(fff) "Parties" means and refers, collectively, to City and Developer.
(ggg) "PCO Report" means and refers to a preliminary change of
ownership report required under California Revenue and Taxation Code Section 480.3.
(hhh) "Permitted Transfer" means and refers to any of the following types
of Transfers by Developer, where the Person to which such Transfer is made, acquires
the Property or a portion thereof (if such Permitted Transfer occurs after the Closing) and
expressly assumes the obligations of Developer under this Agreement with respect to the
portion of the Property so Transferred in a written instrument satisfactory to the City or
acquires an equity interest in Developer:
(1) Any Transfer of stock or equity of Developer that does not
change management or operational control of the Property or the Project or is less than
a 49% interest, as set forth in Section (1) of the definition of Transfer.
(2) Any Transfer of any interest in Developer irrespective of the
percentage of ownership (i) to any other owner of any interest in Developer; or (ii) to any
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Affiliate, or (iii) to any other Person in which any holder of an interest (including any
beneficial interest) in Developer as a manager, officer or partner or in which any of the
aforementioned is a shareholder, member or partner (including a beneficial owner).
(3) The pledge of any interest in the Property as security for a
Loan.
(4) Any foreclosure or deed in lieu of foreclose under the
documents evidencing and securing repayment of a Loan.
(5) Any Property Transfer to an entity in which Developer (or an
Affiliate) has an ownership interest and which is formed with a third party to fund the
development of the Project, and the exercise of any and all remedies under the applicable
entity documents.
(6) The recordation of replacement/permanent financing to
replace a Loan.
(7) The granting of easements and licenses in the ordinary
course of the development and ownership of the Property and the Project.
(8) A Transfer of the Retail Parcels to Sudberry Development
Inc., a California corporation, or an Affiliate thereof.
(iii) "Person" means and refers to any association, corporation,
governmental entity or agency, individual, joint venture, joint-stock company, limited
liability company, partnership, trust, unincorporated organization, or other entity of any
kind.
(jjj) "Poway Stoway Self -Storage Lease" means and refers to that
certain month -to -month lease between City and Poway Stoway Self -Storage with respect
to the 13033 Poway Road Parcel.
(kkk) "Pre -Closing Liquidated Damages Amount" means and refers to
the amount of Fifty Thousand Dollars ($50,000).
(III) "Preliminary Report" means and refers to a preliminary report
issued by the Title Company for the City Parcels, in contemplation of the issuance of the
Developer's Title Policy, accompanied by copies of all documents listed in Schedule B of
the report as exceptions to coverage under the proposed Developer's Title Policy.
(mmm) "Private Parcels" shall have the meaning ascribed thereto in
Recital C. The Private Parcels are legally described in Attachment No. 1, which is
attached hereto and incorporated herein by this reference.
(nnn) "Private Parcels Purchase Agreements" shall have the meaning
ascribed thereto in Recital C.
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(000) "Project" means and refers to Developer's development of (i) the
Residential Development on the Residential Property, (ii) the Comprehensive Retail
Development on the Retail Parcels, and (iii) all required and/or associated on -site and off -
site improvements, all as generally described in the Scope of Development, and all to be
developed in accordance with plans and specifications approved by City and any
conditions imposed by City in its approval of the Developer's development application(s)
related to the Project.
(ppp) "Project Budget" means and refers to the budget attached hereto
and incorporated herein as Attachment No. 9. With respect to said attached budget, City
acknowledges and agrees that Developer's cost estimates may change between the
Effective Date and the Close of Escrow. Prior to the Close of Escrow, Developer shall
submit its revised proposed budget to City for review and approval, which approval shall
not be unreasonably withheld, conditioned or delayed. Upon City's approval thereof, said
revised proposed budget shall become the Project Budget, and said budget shall be the
budget upon which City bases its review pursuant to Section 4.2(b)(4).
(qqq) "Project Completion Date" means and refers to the date on which
City issues a Release of Construction Covenants for the Project.
(rrr) "Property" means and refers to the City Parcels, the Private Parcels,
and any other real property that Developer acquires during the term of this Agreement
and proposes to develop as part of a Comprehensive Retail Development.
(sss) "Property Transfer" means and refers to any "change in ownership,"
as defined in Revenue and Taxation Code Sections 60, et seq., of all or any portion of the
Property.
(ttt) "Purchase Price" means and refers to the amount of Six Million Four
Hundred Twenty Thousand Five Hundred Dollars ($6,420,500).
(uuu) "Record," "recorded," "recording" or "recordation" each mean and
refer to recordation of the referenced document in the official records of the Recorder of
the County of San Diego, California.
(vvv) "Release of Construction Covenants" means and refers to the
written certification of City that the Project is complete and in compliance with the terms
and conditions of this Agreement, in substantially the form of Attachment No. 10 to this
Agreement.
(www) "Residential Development" shall have the meaning ascribed
thereto in Recital D.
Recital D.
D.
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(xxx) " Residential Property" shall have the meaning ascribed thereto in
(yyy) "Retail Parcels" shall have the meaning ascribed thereto in Recital
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March 19, 2019 Item #3.1
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(zzz) "Schedule of Performance" means and refers to the schedule for
the performance of certain actions by City or Developer pursuant to the terms and
conditions of this Agreement, attached to this Agreement as Attachment No. 4.
(aaaa)"Scope of Development" means and refers to the detailed
description of the primary elements of the Project attached to this Agreement as
Attachment No. 3.
(bbbb)Specific Plan" means and refers to the Poway Road Specific Plan,
which was approved by the City Council of City on December 5, 2017. Developer's
development and operation of the Project shall be in substantial conformance with the
Specific Plan, as it may be amended from time to time in accordance with its provisions.
In the event this Agreement is inconsistent with the Specific Plan, the terms of the Specific
Plan shall prevail.
(cccc) "Supplemental Report" means and refers to a supplement issued
to the Preliminary Report by Title Company, accompanied by the additional documents
referred to thereon.
(dddd)"Tentative Map" means and refers to a tentative map subdividing the
Property into multiple parcels, as necessary to accomplish the development of the
Project.
(eeee)'Title Company" means and refers to First American Title Insurance
Company, with its offices at 4380 La Jolla Village Drive, Suite 200, San Diego, CA 92122.
(ffff) "Transfer" means and refers to any of the following:
(1) Any total or partial sale, assignment, conveyance, trust,
power, or transfer in any other mode or form, by Developer of more than a 49% interest
in Developer's interest in this Agreement, the Property, or the Project or a series of such
sales, assignments and the like that, in the aggregate, result in a disposition of more than
a 49% interest in Developer's interest in this Agreement, the Property, or the Project; or
(2) Any total or partial sale, assignment, conveyance, or transfer
in any other mode or form, of or with respect to any interest in Developer or a series of
such sales, assignments and the like that, in the aggregate, result in a disposition of more
than a 49% interest in any interest in Developer; or
(3) Any merger, consolidation, sale or lease of all or substantially
all of the assets of Developer or a series of such sales, assignments and the like that, in
the aggregate, result in a disposition of more than a 49% interest of all or substantially all
of the assets of Developer; or
(4) Any Property Transfer; or
(5) The recordation of any deed of trust, mortgage, lien or similar
encumbrance against all or any portion of the Property or the Project other than a Loan.
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(gggg)"Unavoidable Delay" means and refers to a delay in either Party
performing any obligation under this Agreement, except payment of money, arising from
or on account of any cause whatsoever beyond the Party's reasonable control, despite
such Party's commercially reasonable efforts, including, without limitation, floods,
earthquakes, or other extreme acts of nature, industry -wide strikes, unreasonable delays
in obtaining governmental, utility company approvals or actions (provided, however, the
Party claiming such delay makes a showing of reasonable and timely submission of all
necessary materials and information, and that the response to such submittals was
unusual, unreasonable and/or untimely), labor troubles or other union activities (but only
to the extent such actions affect similar persons at that time and do not result from an act
or omission of the Party), casualty, war, acts of terrorism or riots. Unavoidable Delay
shall not include delay caused by a Party's financial condition, illiquidity, or insolvency.
ARTICLE III
PUBLIC PARCELS DISPOSITION; AS -IS SALE
Section 3.1 Purchase and Sale. City shall sell the City Parcels to Developer
and Developer shall purchase the City Parcels from City pursuant to the terms and
conditions of this Agreement. For the purposes of exchanging funds and documents to
complete the sale from City to Developer and the purchase by Developer from City of the
City Parcels, pursuant to the terms and conditions of this Agreement, City and the
Developer agree to open the Escrow with the Escrow Holder. ARTICLE IV of this
Agreement constitutes the joint escrow instructions of the Parties to the Escrow Holder
for the conduct of the Escrow for the sale of the Property. Developer and City shall
execute the Escrow Holder's standard or general escrow instructions, provided, however,
that the provisions of this Agreement shall be controlling, in the event of any conflict
between the provisions of this Agreement and any such standard or general escrow
instructions requested by the Escrow Holder.
Section 3.2 Payment of Purchase Price. As further described in this
Section 3.2, Developer shall deposit the Purchase Price less the sum of (a) the City Loan,
and (b) the Earnest Money Deposit (for which Developer will receive a credit), into the
Escrow in immediately available funds, as provided in this Agreement.
(a) Earnest Money Deposit. Concurrent with its opening of the Escrow,
Developer shall deposit the Initial Deposit into the Escrow. Upon Developer's acceptance
of the City Parcels in a Due Diligence Investigation Conclusion Notice pursuant to
Section 3.3, (i) Developer shall deposit the Additional Deposit into the Escrow, and
(ii) Escrow Holder shall promptly release the entire Earnest Money Deposit to City. Upon
the Close of Escrow, the Earnest Money Deposit shall be credited to Developer toward
the Purchase Price. In the event the Close of Escrow does not occur as a result of the
failure of one of Developer's conditions to closing to be satisfied, or waived by Developer,
pursuant to the terms of this Agreement, or a material default by City, the Earnest Money
Deposit shall be refundable to Developer. Notwithstanding anything in this Agreement to
the contrary, a portion of the Earnest Money Deposit, in the amount of One Hundred
Dollars ($100) (the "Independent Contract Consideration"), shall be released
immediately to City as consideration for City's execution and delivery of this Agreement
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and Developer's right to approve or disapprove any Developer contingencies set forth in
this Agreement with respect to the Property. The Independent Contract Consideration is
in all respects nonrefundable to Developer.
(b) At Close of Escrow. At least one (1) business day preceding the
Escrow Closing Date, Developer shall deposit into the Escrow the Purchase Price less the
sum of (a) the Earnest Money Deposit, and (b) the City Loan.
(c) Title Approval. As soon as practicable following the Escrow Opening
Date, City shall obtain the Preliminary Report from the Title Company and deliver a copy
of the Preliminary Report to Developer. In addition to the foregoing, Developer shall have
a right, at its own cost, to conduct a survey of the City Parcels. Within forty-five (45) days
following Developer's receipt of the Preliminary Report, Developer shall deliver the
Developer's Title Notice to City. If Developer fails to deliver Developer's Title Notice to
City, within such forty-five (45) day period, Developer will be deemed to approve the
status of title to the City Parcels and to accept title to the City Parcels. Within twenty
(20) days following the earlier of City's receipt of Developer's Title Notice or expiration of
the time period provided in this Section 3.2 for delivery of Developer's Title Notice, City
shall serve City's Title Notice Response. If the Developer's Title Notice does not
disapprove any matter in the Preliminary Report, City shall not be required to serve City's
Title Notice Response. If City does not serve City's Title Notice Response, if necessary,
within twenty (20) days following its receipt of the Developer's Title Notice, City shall be
deemed to elect not to cause any matter disapproved in the Developer's Title Notice to
be removed from the Preliminary Report. If City elects in City's Title Notice Response to
cause the removal of any matter disapproved in Developer's Title Notice from the
Preliminary Report, City shall cause the removal of each such matter from the Preliminary
Report, prior to or concurrently with the Escrow Closing Date. Notwithstanding anything
herein to the contrary, City shall be obligated to remove from record, on or before the
Escrow Closing Date, any liens, claims, encumbrances, deeds of trust or mortgages
encumbering the Property, except to the extent directly caused by Developer. If City
elects or is deemed to have elected not to cause the removal of any matter disapproved
in the Developer's Title Notice from the Preliminary Report, then, within ten (10) days
following the earlier of Developer's receipt of City's Title Notice Response or the
expiration of the time period provided in this Section 3.2 for delivery of City's Title Notice
Response, Developer shall either: (1) refuse to accept the title to and conveyance of the
Property by delivering the Developer's Second Title Notice to City, or (2) waive its
disapproval of any matters set forth in the Developer's Title Notice by delivering the
Developer's Title Notice Waiver to City. Failure by Developer to deliver Developer's
Title Notice Waiver, where City's Title Notice Response or City's failure to serve City's
Title Notice Response indicates or results in City's election not to cause the removal of
any one or more matters disapproved in Developer's Title Notice from the Preliminary
Report, within ten (10) days following Developer's receipt of City's Title Notice Response
or expiration of the time period for City to deliver City's Title Notice Response under this
Agreement, will be deemed Developer's agreement to accept the title to and conveyance
of the City Parcels. In the event Developer delivers Developer's Second Title Notice to
City, either City or Developer shall have the right to cancel the Escrow and terminate this
Agreement, each in their respective sole and absolute discretion, by delivery of a written
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notice of termination to both the other Party and the Escrow Holder, in which case the
Parties and the Escrow Holder shall proceed pursuant to Section 4.10.
(d) In the event that a Supplement is issued, the Parties shall follow and
otherwise abide by the same process set forth in Section 3.2(c).
Section 3.3 Developer Due Diligence Investigations.
(a) City represents to Developer that prior to the Effective Date, City has
provided Developer with hard copies, electronic files, or other access to all reports, plans,
studies and other similar records with respect to the City Parcels (collectively, "City
Reports") that are in City's possession and reasonably known to City. Developer
acknowledges and agrees that (i) the City Parcels were acquired at different times and
by various City entities, and (ii) although City has reviewed its real property files for City
Reports, City has not conducted a comprehensive search of all City files for City Reports.
(b) Developer shall complete all of its Due Diligence Investigations
within the Due Diligence Period and shall conduct all of its Due Diligence Investigations
at its sole cost and expense.
(c) City licenses, permits and authorizes Developer to enter the City
Parcels for the sole purpose of conducting Developer's Due Diligence Investigations,
subject to all of the terms and conditions of this Agreement. Developer shall have the
right, but not the obligation, to engage in environmental testing, soils testing and
surveying on the City Parcels. Following the conduct of any Due Diligence Investigations
on the City Parcels, Developer shall restore the City Parcels to substantially its condition
prior to the conduct of such Due Diligence Investigations.
(d) Any Due Diligence Investigations of the City Parcels by Developer
shall not unreasonably disrupt any then -existing use or occupancy of the City Parcels or
the operations of City, including without limitation the use by Poway Stoway Self -Storage
of the 13033 Poway Road Parcel pursuant to the Poway Stoway Self -Storage Lease.
The activities of Developer or its agents directly or indirectly related to Developer's Due
Diligence Investigations shall be subject to Developer's indemnity, defense and hold
harmless obligations pursuant to Section 9.8. Prior to commencing any Due Diligence
Investigations on the City Parcels, Developer shall deliver all copies of policies or
certificates of insurance required to be delivered pursuant to Section 5.11.
(e) Developer shall deliver to City and the Escrow Holder prior to the end
of the Due Diligence Period a Due Diligence Investigation Conclusion Notice that either
rejects the City Parcels or unconditionally accepts the City Parcels. If Developer does
not deliver a Due Diligence Investigation Conclusion Notice unconditionally accepting the
City Parcels prior to the end of the Due Diligence Period, then Developer shall be deemed
to have accepted the Property and agreed to accept conveyance of title to the City
Parcels. If the City Parcels are rejected by Developer, then each of City or Developer
shall have the right, in their sole and absolute discretion, to cancel the Escrow and
terminate this Agreement, by delivery of a written notice of termination to the other Party
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and the Escrow Holder, in which case the Parties and the Escrow Holder shall proceed
pursuant to Section 4.10.
Section 3.4 Developer to Obtain all Project Approvals.
(a) Following the Escrow Opening Date, City shall reasonably consent,
as necessary, to Developer processing necessary entitlements, permits or applications
with each Governmental Agency for development of the Project, including, as necessary,
the City Manager signing any such applications on behalf of the City, as the owner of the
City Parcels.
(b) Developer shall, within the time period(s) for such actions set forth in
the Schedule of Performance (subject to Unavoidable Delays), prepare and submit a
complete application and any other required application, document, fee, charge or other
item (including, without limitation, deposit, fund or surety) required for construction of the
Project, pursuant to all Governmental Requirements, to each necessary Governmental
Agency for review and approval. City's zoning, building and land use regulations (whether
contained in ordinances, City's municipal code, conditions of approval or elsewhere), shall
be applicable to the construction of the Project by Developer, pursuant to this Agreement.
Developer acknowledges that all plans and specifications and any changes to plans and
specifications for the Project shall be subject to all Governmental Requirements.
No action by City with reference to this Agreement or any related documents shall be
deemed to constitute a waiver of any required City permit, approval or authorization
regarding the City Parcels, the Project, Developer, any successor -in -interest of the
Developer or any successor -in -interest to the City Parcels.
(c) The approval of this Agreement by City shall not constitute a pre -
commitment by City or the City Council of City regarding any approvals required for
development of the Project, including, without limitation, all required analysis under
CEQA. Developer obtains no right or entitlement to construct the Project by virtue of this
Agreement. City reserves unfettered discretion to approve, conditionally approve, or deny
any entitlements and/or other approvals required for the Project and all proceedings and
decisions in connection therewith. This Agreement shall not be construed as a grant of
development rights or land use entitlements to construct the Project on the Property. All
design, architectural, and building plans for the Project shall be subject to the review and
approval of City and any other Governmental Agency. By its execution of this Agreement,
City is not committing itself to or agreeing to undertake any acts or activities requiring the
subsequent independent exercise of discretion by City or any agency or department
thereof.
(d) If any revisions of the Project are required by a Governmental
Agency, Developer shall promptly make any such revisions, provided such revisions are
generally consistent with the Scope of Development.
(e) Notwithstanding any provision to the contrary in this Agreement,
Developer agrees to abide by and comply fully with any and all conditions of approval
applicable to all approvals, permits and other governmental actions regarding the
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construction of the Project; provided, however, that Developer reserves its rights to
challenge any illegally imposed condition of approval applicable to an approval, permit,
or other governmental action regarding the construction of the Project.
(f) Developer and City agree that City shall not provide any financial
assistance to Developer in connection with the construction of the Project. Developer
shall be solely responsible for paying for the costs of all design work, construction, labor,
materials, fees, permit, application, surety bond and other expenses associated with the
Project. Developer shall pay any and all fees pertaining to the review and approval of the
Project by each Governmental Agency and utility service providers, including the costs of
preparation of all required construction, planning and other documents reasonably
required by each Governmental Agency or utility service provider pertinent to the
construction of the Project, including, but not limited to, specifications, drawings, plans,
maps, permit applications, land use applications, zoning applications, environmental
review and disclosure documents and design review documents. Developer shall obtain
any and all necessary governmental approvals, prior to the commencement of applicable
portions of construction of the Project, and Developer shall take all necessary precautions
to ensure the safety and stability of surrounding properties during the construction of the
Project.
(g) Developer shall obtain all entitlements, permits and other approvals
for construction of the Project from each Governmental Agency, within the time periods
for such actions set forth in the Schedule of Performance, subject to any extensions of
time authorized by this Agreement upon the occurrence of an Unavoidable Delay.
Section 3.5 Notice to Vacate. Within five (5) business days after the
occurrence of the Entitlement Approval Date, City shall deliver to each tenant and
occupant of any occupied City Parcels a written notice of termination.
Section 3.6 Quate Court. If requested in writing by Developer, City staff will
agendize, for City Council consideration, Developer's request to vacate Quate Court.
ARTICLE IV
JOINT ESCROW INSTRUCTIONS
Section 4.1 Opening of Escrow. City and Developer shall cause the Escrow to
be opened within five (5) days following the Effective Date. Escrow Holder shall promptly
confirm in writing to each of the Parties the date of the Escrow Opening
Date. This ARTICLE IV shall constitute the joint escrow instructions of City and
Developer to Escrow Holder for conduct of the Escrow.
Section 4.2 Conditions to Close of Escrow. The conditions set forth below in
this Section 4.2 shall be satisfied or waived by the respective benefited Party on or before
the Escrow Closing Date or the Party benefited by any unsatisfied condition shall not be
required to proceed to close the Escrow.
(a) Developer's Conditions. Developer's obligation to purchase the City
Parcels from City on the Escrow Closing Date shall be subject to the satisfaction or waiver
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of each of the following conditions precedent, each of which can only be waived in writing
by Developer, in Developer's sole and absolute discretion:
(1) Developer has not timely elected to terminate the Escrow and
this Agreement pursuant to the provisions in Section 3.2;
(2) The occurrence of the Entitlement Approval Date;
(3) The Title Company is unconditionally committed to issue the
Developer's Title Policy to Developer, at the Close of Escrow;
(4) City has deposited all of the items into the Escrow required by
Section 4.4;
(5) Developer has reasonably approved the Escrow Holder's final
estimated closing/settlement statement;
(6) The escrow under the Private Parcels Purchase Agreements
has closed, and Developer has acquired fee title to the Private Parcels;
(7)
City has acquired fee title to all of the City Parcels;
(8) The escrow under the AHPDA has closed, and Developer has
acquired fee title to the Affordable Housing Parcel;
(9) The City Council of City has approved, and City and
Developer have entered into, a Development Agreement;
(10) Developer has obtained all City permits required to complete
the rough grading of the Property;
(11) The City Parcels have been vacated and are free from
occupancy; and
(12) City has performed all of its material obligations required to be
performed by City under this Agreement prior to Close of Escrow; and is not in default of
any of its obligations under this Agreement.
(b) City's Conditions. City's obligation to sell the City Parcels to
Developer on or before the Escrow Closing Date shall be subject to the satisfaction or
waiver of each of the following conditions precedent, which can only be waived in writing
by City, in City's sole and absolute discretion:
(1) Developer has deposited the Earnest Money Deposit into
Escrow, pursuant to Section 3.2(a), and the Earnest Money Deposit has been released
to City;
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(2) Developer has not timely elected to terminate the Escrow and
this Agreement pursuant to the provisions in Section 3.2;
(3)
The occurrence of the Entitlement Approval Date;
(4) Developer has provided evidence reasonably satisfactory to
City that Developer has sufficient financing, or Developer has obtained commitments for
sufficient financing, to develop the Project in accordance with the Project Budget, and any
such financing for which Developer has obtained commitments shall close and be
available to Developer on the Escrow Closing Date;
(5) Developer has delivered to City, at least fourteen (14) days
prior to the Escrow Closing Date, a legally binding written contract between Developer
and a general contractor, licensed in California, experienced in the construction of
projects similar to the Project, for the construction of the Project, which general contractor
may be an Affiliate of Developer provided that the terms of the construction contract are
standard, competitive, market -based terms;
(6) Developer has deposited all of the items into Escrow required
by Section 4.3;
(7) City has reasonably approved the Escrow Holder's final
estimated closing/settlement statement;
(8) The escrow under the Private Parcels Purchase Agreements
has closed and Developer has acquired fee title to the Private Parcels,
(9) City has acquired fee title to all of the City Parcels;
(10) The escrow under the AHPDA has closed and Developer has
acquired fee title to the Affordable Housing Parcel;
(11) Developer has performed all of its material obligations
required to be performed by Developer under this Agreement prior to Close of Escrow;
and is not in default of any of its obligations under this Agreement;
(12) The Title Company is unconditionally committed to issue the
City's Title Policy to City, at the Close of Escrow;
(13) Developer has obtained all City permits required to complete
the rough grading of the Property;
(14) Developer, at its sole cost and expense, shall have provided
to City all studies, reports, data, and supporting materials necessary for City to conduct
all required analysis under CEQA, City shall have completed such analysis, and the City
Council or City Planning Commission (as applicable), in its sole and absolute discretion,
shall have made all requisite findings, determinations, and/or certifications necessary to
enable the Project to move forward;
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(15) The City Parcels have been vacated and are free from
occupancy;
(16) The representations, warranties and covenants of Developer
set forth in ARTICLE VIII are true and correct in all material respects on the Effective Date
and continuing through and including on the Escrow Closing Date;
(17) Developer has provided City with a residential real estate
report or other documentation and/or analysis reasonably acceptable to the City Manager
evidencing that the residential real estate market for new "for -sale" multifamily homes in
general, and in the City of Poway in particular is in a condition to enable Developer to sell
not less than twelve (12) "for -sale" multifamily homes (the "First Phase"), and
(18) Developer has delivered to City organizational documents
evidencing the establishment and good standing of Developer, and the authority of
Developer to enter into this Agreement and perform its obligations hereunder.
Section 4.3 Developer's Escrow Deposits. Following satisfaction or waiver of
each of Developer's conditions to the Close of Escrow set forth in Section 4.2(a), at least
one (1) business day prior to the Escrow Closing Date scheduled by the Escrow Holder
in a writing delivered to each of the Parties, Developer shall deposit the following funds
and documents into the Escrow and, concurrently, provide a copy of each such document
to City:
(a) Purchase Price. The Purchase Price, less the sum of (i) the Earnest
Money Deposit, and (ii) the City Loan, plus any additional funds required to be deposited
into the Escrow by Developer under the terms of this Agreement to close the Escrow, all
in immediately available funds;
(b) PCO Report. A Preliminary Change of Ownership Report executed
by the authorized representative(s) of Developer;
(c) Memorandum of Agreement. The Memorandum of Agreement
executed by the authorized representative(s) of Developer in recordable form;
(d) City Note. The City Note, executed by the authorized
representative(s) of Developer; and
(e) City Deed of Trust. The City Deed of Trust, executed by the
authorized representative(s) of Developer.
Section 4.4 City's Escrow Deposits. Following satisfaction or waiver of each of
City's conditions to Close of Escrow set forth in Section 4.2(b), at least one (1) business
day prior to the Escrow Closing Date scheduled by the Escrow Holder in a writing
delivered to each of the Parties, City shall deposit the following funds and documents into
the Escrow and, concurrently, provide a copy of each such document to Developer:
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(a) City Grant Deed. The City Grant Deed executed by the authorized
representative(s) of City in recordable form;
(b) FIRPTA Affidavit. The FIRPTA Affidavit completed and executed by
the authorized representative( s) of City;
(c) Memorandum of Agreement. The Memorandum of Agreement
executed by the authorized representative(s) of City in recordable form; and
(d) Form 593. A Form 593 executed by the authorized representative(s)
of City.
Section 4.5 Closing Procedure. When each of Developer's Escrow deposits,
as set forth in Section 4.3, and each of City's Escrow deposits, as set forth in Section 4.4,
are deposited into the Escrow, the Escrow Holder shall request confirmation in writing
from both City and Developer that each of their respective conditions to the Close of
Escrow, as set forth in Section 4.2, are satisfied or waived. Upon the Escrow Holder's
receipt of written confirmation from both City and Developer that each of their respective
conditions to the Close of Escrow are either satisfied or waived, the Escrow Holder shall
close the Escrow by doing all of the following:
(a) Insertion of Dates. Insert the Escrow Closing Date into the City Grant
Deed, Memorandum of Agreement, City Note, and City Deed of Trust, as the date of such
document, prior to the recordation of the City Grant Deed, Memorandum of Agreement
and City Deed of Trust;
(b) Recordation of Documents. File the City Grant Deed, the
Memorandum of Agreement, and City Deed of Trust (as applicable) with the Office of the
Recorder of the County of San Diego, California, for recordation in the order set forth in
Section 4.7;
(c) Distribution of Recorded Documents. Distribute conformed copies of
each recorded document to the Party or person designated for such distribution in
Section 4.7;
(d) PCO Report. File the PCO Report with the Office of the Recorder of
the County of San Diego, California;
(e) FIRPTA Affidavit. Deliver the FIRPTA Affidavit to Developer, and
deliver a copy to City;
(f) Form 593. Deliver the Form 593 to Developer, and deliver a copy to
City;
(g) Developer's Title Policy. Obtain and deliver to Developer the
Developer's Title Policy;
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March 19, 2019 Item #3.1
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(i) Purchase Price. Deliver the Purchase Price to City, less the sum of
(i) the Earnest Money Deposit, (ii) the City Loan, and (iii) any other charges to the account
of City, and return all remaining funds held by the Escrow Holder for the account of
Developer to Developer, less Developer's share of the Escrow closing costs, and less
any other charges chargeable to the account of Developer under the terms of this
Agreement; and
(j) Report to IRS. Following the Close of Escrow and prior to the last
date on which such report is required to be filed with the Internal Revenue Service, if such
report is required pursuant to Section 6045(e) of the Internal Revenue Code, the Escrow
Holder shall report the gross proceeds of the purchase and sale of the Property to the
Internal Revenue Service on Form 1099-B, W-9 or such other form(s) as may be specified
by the Internal Revenue Service pursuant to Section 6045(e). Upon the filing of such
reporting form with the Internal Revenue Service, the Escrow Holder shall deliver a copy
of the filed form to City and Developer.
Section 4.6 Close of Escrow. Close of Escrow shall occur on or before the
Escrow Closing Date. If for any reason the Close of Escrow has not occurred on or before
the Escrow Closing Date, then any Party not then in default of this Agreement may cancel
the Escrow and terminate this Agreement, without liability to the other Party or any other
person for such cancellation and termination, by delivering written notice of termination
to both the other Party and the Escrow Holder and, thereafter, the Parties shall proceed
pursuant to Section 4.10. Without limiting the right of either Party to cancel the Escrow
and terminate this Agreement pursuant to the preceding sentence, if the Escrow does not
close on or before the Escrow Closing Date, and neither Party has exercised its
contractual right to cancel the Escrow and terminate this Agreement before such time,
then the Escrow shall close as soon as reasonably possible following the first date on
which the Escrow Holder is in a position to close the Escrow, pursuant to the terms and
conditions of this Agreement.
Section 4.7 Recordation and Distribution of Documents. Escrow Holder shall
cause the following documents to be recorded in the official records of the Recorder of
the County of San Diego, California, in the following order at the Close of Escrow: (i) the
City Grant Deed, (ii) the City Deed of Trust, (iii) the Memorandum of Agreement, and
(iv) any other documents to be recorded through the Escrow upon the joint instructions of
the Parties. The Escrow Holder shall deliver conformed copies of all documents recorded
through the Escrow to City and Developer and any other person designated in the joint
escrow instructions of the Parties to receive a conformed copy of each such document,
each showing all recording information.
Section 4.8 Escrow Closing Costs, Taxes and Title Policy Premium. Developer
and City shall each pay half of the documentary transfer taxes, Escrow fees, and such
other costs as the Escrow Holder may charge for the conduct of the Escrow. The Escrow
Holder shall notify Developer and City of the costs to be borne by each of Developer and
City at the Close of Escrow by delivering the Escrow Holder's estimated
closing/settlement statement to both City and Developer, at least, four (4) business days
prior to the Escrow Closing Date. City shall pay the premium charged by the
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Title Company for the Developer's Title Policy, with standard coverage, and for the City's
Title Policy; provided, however, that Developer shall pay the costs of any endorsements
or other supplements to the coverage of the Developer's Title Policy that may be
requested by Developer, including the additional cost for extended ALTA coverage, if
such coverage is elected by Developer. City shall pay any and all recording fees, and
any and all other charges, fees and taxes levied by a governmental authority relative to
the conveyance of the Property through the Escrow.
Section 4.9 Escrow Cancellation Charges. If the Escrow fails to close due to
City's material default under this Agreement, City shall pay all ordinary and reasonable
cancellation charges relating to the Escrow, the Developer's Title Policy and the City's
Title Policy. If the Escrow fails to close due to Developer's material default under this
Agreement, or for any reason other than the material default of City, Developer shall pay
all ordinary and reasonable cancellation charges relating to the Escrow, the Developer's
Title Policy, and the City's Title Policy.
Section 4.10 Escrow Cancellation. If the Escrow is cancelled and this
Agreement is terminated pursuant to a contractual right granted to a Party in this
Agreement to cancel the Escrow and terminate this Agreement, other than due to the
default of another Party, the Parties shall do each of the following:
(a) Cancellation Instructions. The Parties shall, within three
(3) business days following receipt of the Escrow Holder's written request, execute any
reasonable Escrow cancellation instructions requested by the Escrow Holder;
(b) Return of Funds and Documents. Within ten (10) days following
receipt by the Parties of a settlement statement from the Escrow Holder of cancellation
charges regarding the Escrow, the Developer's Title Policy, and the City's Title Policy, if
any: (i) Developer or the Escrow Holder shall return to City any documents previously
delivered by City to Developer or the Escrow Holder regarding the Escrow, (ii) City or the
Escrow Holder shall return to Developer all documents previously delivered by Developer
to City or the Escrow Holder regarding the Escrow; and (iii) the Escrow Holder shall return
to Developer any funds deposited into the Escrow, except as otherwise provided in either
Section 3.2(a) or Section 9.3, less the customary and reasonable Escrow and title order
cancellation charges regarding the Escrow, the Developer's Title Policy, and the City's
Title Policy, if any.
Section 4.11 Entitlement Claims; CEQA Claims. If any Entitlement Claims
and/or CEQA Claims are taken or filed, then Developer shall have the right to elect to
either defend the same or not defend the same, at Developer's cost, including, without
limitation, all of the court costs, attorney fees, monetary awards, sanctions, attorney fee
awards, expert witness and consulting fees, and the expenses of any and all financial or
performance obligations resulting from the disposition of the legal action. If Developer
elects to so defend the same, then Developer shall appoint counsel and direct strategy;
provided, however, that such counsel shall be acceptable to City. If Developer elects not
to so defend, then either City or Developer shall have the right to terminate this
Agreement.
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ARTICLE V
PROJECT DEVELOPMENT
Section 5.1 Developer Covenant to Undertake Project. Developer covenants
and agrees for itself and its successors and assigns, to and for the exclusive benefit of
City, that Developer shall develop the Project in a good and workmanlike manner, within
the applicable time periods set forth in the Schedule of Performance, and in conformity
with the terms and conditions of this Agreement, the Scope of Development, the
Entitlements, any and all plans, specifications and similar development documents
required by this Agreement and approved by City, including all conditions of approval
issued in connection with any of the foregoing approvals, except for such changes as may
be mutually agreed upon in writing by and between Developer and City, and all applicable
laws, regulations, orders and conditions of each Governmental Agency. The covenants
of this Section 5.1 shall run with the land of the City Parcels until the Project Completion
Date.
Section 5.2 Developer Changes to Project Plans and Specifications During
Course of Construction. Developer shall have the right, during the course of construction
of the Project, to make "Minor Field Changes" (as defined in the following sentence),
without seeking the approval of City, if such changes do not affect the type of use to be
conducted within all or any portion of a structure. "Minor Field Changes" shall be defined
as those changes from the approved construction drawings, plans and specifications that:
(1) have no substantial effect on the Project and are made in order to expedite, clarify or
facilitate the work of construction in response to field conditions; (2) are changes to the
Project's interior spaces that substantially conform to the drawings, plans, and
specifications and/or are required pursuant to an applicable law by a lender or equity
partner; (3) are changes that represent the selection of a particular design option or
feature; (4) are changes that are required under applicable laws; and/or (5) are changes
dictated by the identification of any unforeseen conditions. Nothing contained in this
Section 5.2 shall be deemed to constitute a waiver of or change in any Governmental
Requirements governing any such Minor Field Changes or in any approvals by any
Governmental Agency otherwise required for any such Minor Field Changes.
Section 5.3 Completion of Project.
(a) Upon Developer's completion of the Project, Developer shall:
(1) Record a Notice of Completion, in accordance with California
Civil Code Section 3093, for the entirety of the Project;
(2) Cause the Project to be inspected by each Governmental
Agency and correct any defects and deficiencies that may be disclosed by any such
inspection; and
(3) Cause all occupancy certificates and other licenses, permits
and authorizations necessary for the operation and occupancy of the completed Project
to be duly issued.
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(b) After commencement of the work of improvement of the Project,
Developer shall not permit the work of improvement of the Project to cease or be
suspended for a time period in excess of thirty (30) calendar days, either consecutively
or in the aggregate. Notwithstanding the foregoing, such thirty (30) calendar day period
may be extended by the City Manager for up to an additional thirty (30) calendar days, in
the aggregate, unless caused by Unavoidable Delays.
Section 5.4 Compliance with Laws. All work performed in connection with the
construction of the Project shall comply with all Governmental Requirements.
Section 5.5 Schedule of Performance. All planning, construction, and other
development obligations and responsibilities of Developer related to the Project shall be
initiated and completed within the times specified in the Schedule of Performance, or
within such reasonable extensions of such times granted by City in writing or as otherwise
provided for in this Agreement.
Section 5.6 Developer Attendance at City Meetings. Developer agrees to have
one or more of its employees or consultants who are knowledgeable regarding this
Agreement and the development of the Project, such that such person(s) can
meaningfully respond to City staff questions regarding the progress of the Project, attend
meetings with City staff or meetings of the Poway City Council, when requested to do so
by City staff.
Section 5.7 City Right to Inspect Project and Property. Officers, employees,
agents and representatives of City shall have the right of reasonable access to the
Property, without the payment of charges or fees, during normal construction hours,
during the period of construction of the Project. Any and all officers, employees, agents
or representatives of City who enter the Property shall identify themselves at the
construction management office or, if none, to the apparent on -site construction
supervisor on the Property, upon their entrance onto the Property, and shall at all times
be accompanied by a representative of Developer, while on the Property. Developer shall
make a representative of Developer available for this purpose at all times during normal
construction hours, upon reasonable advance notice from City. If in City's reasonable
judgment it is necessary, City shall have the further right, from time to time, to retain a
consultant or consultants to inspect the Project and verify compliance by Developer with
the provisions of this Agreement. Developer acknowledges and agrees that any such
City inspections are for the sole purpose of protecting City's rights under this Agreement,
are made solely for City's benefit, may be superficial and general in nature, and are for
the purposes of informing City of the progress of the Project and the conformity of the
Project with the terms and conditions of this Agreement, and that Developer shall not be
entitled to rely on any such inspection(s) as constituting City's approval, satisfaction or
acceptance of any materials, workmanship, conformity of the Project with this Agreement
or otherwise. Developer agrees to make its own regular inspections of the work of
construction of the Project to determine that the quality of the Project and all other
requirements of the work of construction of the Project are being performed in a manner
satisfactory to Developer.
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Section 5.8 Construction in Compliance with Applicable Laws.
(a) Developer shall be solely responsible, expressly or impliedly and
legally and financially, for determining and effectuating compliance with all applicable
federal, state and local public works requirements, prevailing wage laws, and labor laws
and standards, and City makes no representation, either legally and/or financially, as to
the applicability or non -applicability of any federal, state and local laws to Developer's
construction of the Project. Developer expressly, knowingly and voluntarily
acknowledges and agrees that City has not previously represented to Developer or to any
representative, agent or affiliate of Developer, or any contractor(s) or any subcontractor(s)
for the construction or development of the Project, in writing or otherwise, in a call for bids
or otherwise, that the work and construction of the Project is (or is not) a "public work," as
defined in Section 1720 of the Labor Code or under the Davis -Bacon Act, 40 U.S.C.
Section 3141, et seq., and the regulations promulgated thereunder set forth at 29 CFR
Part 1 (collectively, "Davis -Bacon").
(b) Developer knowingly and voluntarily agrees that Developer shall
have the obligation to provide any and all disclosures or identifications as and to the extent
required by Labor Code Section 1781 and/or by Davis -Bacon, as the same may be
amended from time to time, or any other similar law or regulation. Developer shall
indemnify, protect, pay for, defend and hold harmless City, with legal counsel reasonably
acceptable to City from and against any and all loss, liability, damage, claim, cost,
expense and/or "increased costs" (including reasonable attorney's fees, court and
litigation costs, and fees of expert witnesses) which, in connection with the development,
construction (as defined by applicable law) and/or operation of the Project, including,
without limitation, any and all public works (as defined by applicable law), results or arises
in any way from any of the following: (i) the noncompliance by Developer or its contractor
with any applicable local, state and/or federal law or regulation, including, without
limitation, any applicable federal and/or state labor laws or regulations (including, without
limitation, if applicable, the requirement to pay state and/or federal prevailing wages and
hire apprentices); (ii) the implementation of Section 1781 of the Labor Code and/or of
Davis -Bacon, as the same may be amended from time to time, or any other similar law or
regulation; and/or (iii) failure by Developer to provide any required disclosure or
identification as required by Labor Code Section 1781 and/or by Davis -Bacon, as the
same may be amended from time to time, or any other similar law or regulation. It is
agreed by the Parties that, in connection with the development and construction (as
defined by applicable law or regulation) of the Project, including, without limitation, any
and all public works (as defined by applicable law or regulation), Developer shall bear all
risks of payment or non-payment of prevailing wages under applicable federal, state and
local law or regulation and/or the implementation of Labor Code Section 1781 and/or by
Davis -Bacon, as the same may be amended from time to time, and/or any other similar
law or regulation. The foregoing indemnity shall survive termination of this Agreement
and shall continue after completion of the construction and development of the Project.
"Increased costs," as used in this Section 5.8, shall have the meaning
ascribed to it in Labor Code Section 1781, as the same may be amended from time to
time.
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DEVELOPER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND
ASSIGNS, WAIVES AND RELEASES CITY FROM ANY RIGHT OF ACTION THAT MAY
BE AVAILABLE TO ANY OF THEM PURSUANT TO LABOR CODE SECTION 1781.
DEVELOPER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE
SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS
SECTION 5.8, WHICH READS AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH 1F KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
BY INITIALING BELOW, DEVELOPER KNOWINGLY AND VOLUNTARILY
WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE
WAIVERS AND RELEASES OFT • �'• ECT1ON 5.8:
all
rrs Initials
Section 5.9 AS -IS SALE; RELEASE
(a) Developer acknowledges, agrees, and represents to City that
Developer is experienced In the acquisition and development of land similar to the City
Parcels and that as of the Close of Escrow, it has been given an adequateopportunity to
review and inspect, and has approved ati aspects of, the City Parcels. Developer shall
rely solely and exclusively upon the results of its Due Diligence Investigations of the City
Parcels, including, without limitation, investigations regarding geotechnical soil
conditions, compliance with applicable laws pertaining to the use of the Cry Parcels by
Developer and any other maw relevant to the condition or suitability of the City Parcels
for the Project, as Developer may deem necessary or appropriate. City makes no
representation or warranty to Developer relating to the condition of (he City Parcels or
suitability of the City Parcels for any intended use or development by Developer.
(b) Developer shall accept all conditions of the City Parcels, without any
liability of City whatsoever, upon Developer's acceptance of the City Parcels indicated m
its Due Diligence Investigation Conclusion Notice, or Developer's deemed acceptance of
the City Parcels by Developer's failure to deliver a Due Dligence Investigation Conclusion
Notice. Developer's delivery of its Due Diligence Investigation Conclusion Notice
indicating Developer's unconditional acceptance of the City Parcels, or Developer's
deemed acceptance of the City Parcels by Developer's failure to deliver a Due Diligence
Investigation Conclusion Notice, shall evidence Developer's unconditional and
irrevocable acceptance of the City Parcels in the Public Paroel's AS IS, WHERE IS,
SUBJECT TO ALL FAULTS CONDITION, WITHOUT WARRANTY AS TO QUALITY,
CHARACTER, PERFORMANCE OR CONDITION and with full knowledge of the physical
condition of the City Parcels, ail zoning, other land use laws and other Governmental
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March 18, 2019 Item #3.1
Resolution No. 19-013
Requirements affecting the City Parcels, and of the conditions, restricfions,
encumbrances and all matters of record relating to the City Parcels. Developer's delivery
of its Due Diligence Investigation Conclusion Notice indicating Developer's unconditional
acceptance of the City Parcels, Of Developer's deemed acceptance of the City Parcels
by Developer's failure to defMer a Due Diligence Investigation Conclusion Notice, shall
constitute Devefaper's representation and warranty to City that Developer has received
assurances acceptable to Developer by means independent of City or any agent of City
of the truth of all facts material to Developer's acquisition of the City Parcels pursuant to
this Agreement, and that the City Parcels are being acquired by Developer as a result of
is awn knowledge, inspection and investigation of the City Parcels and not as a result of
any representations made by City or any employee, official, consultant or agent of City
wing to the condition of the City Parcels, unless such statement or representation is
expressly and specifically set forth in this Agreement. City hereby expressly and
wily disclaims any express or implied warranties regarding the City Parcels.
DEVELOPER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND
ASSIGNS, WAIVES AND RELEASES CITY FROM ANY RIGHT OF ACTION THAT MAY
BE AVAILABLE TO ANY OF THEM WITH RESPECT TO THE CONDITION OF THE
PUBLIC PARCELS. DEVELOPER ACKNOWLEDGES THE PROTECTIONS OF CIVIL
CODE SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN
THIS SECTION 5.9, WHICH READS AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY H I M
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
BY INITIALING BELOW, DEVELOPER KNOWINGLY AND VOLUNTARILY
WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE
WAIVERS AND RELEASES OF THIS SEEK ON 5.9:
Deve s Initials "
Section 5.10 Environmental Indemnity of City by Developer. On and after the
Escrow Closing Date, Developer agrees, at its sole cost and expense, to fully indemnify,
protect, hold harmless, and defend (with counsel selected by Developer and approved by
City) City and City Personnel, and each of them, from and against any and all claims,
demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of
action, judgments, suits, proceedings, costs, disbursements and expenses, including,
without limitation, attorney fees, disbursements and costs of attorneys, environmental
consultants and other experts, and all foreseeable and unforeseeable damages or costs
of any kind or of any nature whatsoever (collectively, "Environmental Losses") that may,
at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded
against, City directly or indirectly relating to or arising from any of the following
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March 19, 2019 item #3.1
Resolution No. 19-013
"Environmental Matters" occurring during and/or arising from Developer's ownership of
the Property or construction or operation of the Project:
(a) the presence of Hazardous Substances on, in, under, from or
affecting all or any portion of the Property or the Project.
(b) The storage, holding, handling, release, threatened release,
discharge, generation, leak, abatement, removal or transportation of any Hazardous
Substances on, in, under, from or affecting the Property or the Project.
(c) The violation of any law, rule, regulation, judgment, order, permit,
license, agreement, covenant, restriction, requirement or the like by Developer, its agents
or contractors, relating to or governing in any way Hazardous Substances on, in, under,
from or affecting the Property or the Project.
(d) The violation of any law, rule, regulation, judgment, order, permit,
license, agreement, covenant, restriction, requirement or the like by Developer, its agents
or contractors, relating to or governing in any way the discharge of storm water on, in,
under, from or affecting the Property or the Project, and the failure of Developer, its agents
or contractors to comply with any permit issued pursuant to the National Pollutant
Discharge Elimination System and applicable to the Project and/or Property.
(e) The failure of Developer, its agents or contractors, to properly
complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations,
covenants and the like in connection with Developer's activities on the Property or
regarding the Project.
(f) The implementation and enforcement by Developer, its agents or
contractors of any monitoring, notification or other precautionary measures that may, at
any time, become necessary to protect against the release, potential release or discharge
of Hazardous Substances on, in, under, from or affecting the Property or the Project.
(g) The failure of Developer, its agents or contractors, in compliance with
all applicable Environmental Laws, to lawfully remove, contain, transport or dispose of
any Hazardous Substances existing, stored or generated on, in, under or from the
Property or the Project.
(h) Any investigation, inquiry, order, hearing, action or other proceeding
by or before any Governmental Agency in connection with any Hazardous Substances
on, in, under, from or affecting the Property or the Project or the violation of any
Environmental Law relating to the Property or the Project.
On and after the Escrow Closing Date, Developer shall pay to City all costs
and expenses including, without limitation, reasonable attorney's fees and costs, incurred
by City in connection with enforcement of the aforementioned environmental indemnity.
Section 5.11 Insurance. On and after the Escrow Closing Date, Developer,
to protect City, and City Personnel against any and all claims and liability for death, injury,
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loss and damage resulting from Developer's actions in connection with this Agreement,
the Property and the Project, shall secure and maintain the insurance coverage,
described in and required by this Section 5.11. Developer shall pay any deductibles and
self -insured retentions under all insurance policies issued in satisfaction of the terms of
this Agreement.
(a) Workers' Compensation Insurance Requirement. On and after the
Escrow Closing Date, Developer shall submit written proof, if Developer has employees,
that Developer is insured against liability for workers' compensation in accordance with
the provisions of Section 3700 of the Labor Code. By executing this Agreement,
Developer makes the following certification, required by Section 1861 of the Labor Code:
"I am aware of the provisions of section 3700 of the Labor
Code which require every employer to be insured against
liability for workers' compensation or to undertake self-
insurance in accordance with the provisions of that code, and
I will comply with such provisions before commencing the
performance of the work of the Agreement."
(1) On and after the Escrow Closing Date, Developer shall require
each contractor and sub -contractor performing work on the Project or the Property to
provide workers' compensation coverage for all of such contractor's or sub -contractor's
employees, unless the contractor's or sub -contractor's employees are covered by
workers' compensation insurance provided by Developer. If any class of employees
engaged in work or services performed in connection with the Project is not covered by
Labor Code Section 3700, Developer shall provide and/or require each contractor or sub-
contractor to provide adequate workers' compensation insurance covering such
employees.
(b) Liability and Permanent Insurance Requirements.
(1) On and after the Escrow Closing Date, Developer shall
maintain in full force and effect, until the Project Completion Date, subject to
subsection (e), the following insurance coverage:
Commercial General Liability Insurance coverage, including,
but not limited to, Premises -Operations, Contractual Liability
Insurance (specifically covering the indemnity obligations of
Developer pursuant to this Agreement), Products -Completed
Operations Hazards, Personal Injury (including bodily injury
and death), and Property Damage for liability arising out of the
construction of the Project and/or the Developer's operation
of the Property or the Project.
(i) Commercial general liability insurance coverage shall
have minimum limits for Bodily Injury and Property Damage liability of FIVE MILLION
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March 19, 2019 Item #3.1
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DOLLARS ($5,000,000) each occurrence and TEN MILLION DOLLARS ($10,000,000)
aggregate.
(ii) Automobile Liability Insurance against claims of
Personal Injury (including bodily injury and death) and Property Damage covering all
owned, leased, hired and non -owned vehicles used by Developer with minimum limits for
Bodily Injury and Property Damage of ONE MILLION DOLLARS ($1,000,000) each
occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. Such insurance shall
be provided by a business or commercial vehicle policy.
(iii) If Developer hires a consultant to provide design
services, such as architectural or engineering services in connection with the Project, or
any portion of the Project, Developer shall require each such consultant to provide
Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in
connection with, the performance of such design services, with limits of not less than ONE
MILLION DOLLARS ($1,000,000).
(c) On and after the Escrow Closing Date, Developer shall require that
each contractor performing work on the Project maintain the following insurance
coverage, as specified below:
(1) Each General Contractor shall maintain Builder's Risk
Insurance to be written on an All Risk Completed Value form, in an aggregate amount
equal to 100% of the completed insurable value of the Project.
(2) Each General Contractor and each sub -contractor shall
maintain Commercial General Liability Insurance with limits of not less than FIVE
MILLION DOLLARS ($5,000,000) per occurrence and TEN MILLION DOLLARS
($10,000,000) aggregate to protect the Developer during the construction of the Project
from claims involving bodily injury and/or death and damage to the property of others.
(3) Each General Contractor and each sub -contractor shall
maintain Automobile Liability Insurance against claims of personal injury (including bodily
injury and death) and property damage covering all owned, leased, hired and non -owned
vehicles used in the performance of the contractor's obligations with minimum limits for
bodily injury and property damage of ONE MILLION DOLLARS ($1,000,000) each
occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. Such insurance shall
be provided by a business or commercial vehicle policy.
(d) The Commercial General Liability Insurance required in
subsection (b)(1)(i) above, shall include an endorsement naming City and City Personnel
as additional insureds for liability arising out of this Agreement and any operation related
to this Agreement.
(e) If any of the insurance coverage required under this Agreement is
written on a claims -made basis, such insurance policy shall provide an extended reporting
period continuing through the fifth (5th) anniversary of the Project Completion Date.
The requirements of this subsection (e) shall survive any expiration or termination of this
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March 19, 2019 Item #3.1
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Agreement and the recordation of the City Grant Deed and City's issuance of the Release
of Construction Covenants for the Project.
(f) Receipt by City of evidence of insurance that does not comply with
the above requirements shall not constitute a waiver of the insurance requirements of this
Agreement.
(g) Subject to subsection (e), the above required insurance coverage
shall be maintained by Developer or its contractors, as required by the terms of this
Agreement, shall not be reduced, modified, or canceled without, at least, thirty (30) days
prior written notice to City. Also, phrases such as "endeavor to" and "but failure to mail
such notice shall impose no obligation or liability of any kind upon the company" shall not
be included in the cancellation wording of any Certificates of Insurance or any coverage
for City and City Personnel. Developer shall immediately obtain replacement coverage
for any insurance policy that is terminated, canceled, non -renewed, or whose policy limits
are exhausted or upon insolvency of the insurer that issued the policy.
(h) All insurance to be obtained and maintained by Developer under this
Agreement shall be issued by a company or companies listed in the then current "Best's
Key Rating Guide" publication with a minimum of an "A; IX" rating and be admitted to
business in the State of California by the State of California Department of Insurance.
(i) City will not accept self-insurance in satisfaction of the insurance
requirements of this Section 5.11.
(j) All insurance obtained and maintained by Developer in satisfaction
of the requirements of this Agreement shall be primary to and not contributing to any
insurance maintained by any of City and City Personnel.
(k) Insurance coverage in the minimum amounts set forth in this
Agreement shall not be construed to relieve Developer of any liability, whether within,
outside, or in excess of such coverage, and regardless of solvency or insolvency of the
insurer that issues the coverage; nor shall it preclude City from taking such other actions
as are available to it under any other provision of this Agreement or otherwise at law.
(I) Failure by Developer to maintain all insurance required by this
Agreement in effect at all times shall be an Event of Default by Developer. City, at its sole
option, may exercise any remedy available to it in connection with such an Event of
Default. Additionally, City may purchase such required insurance coverage and City shall
be entitled to immediate payment from Developer for any premiums and associated costs
paid by City for such insurance coverage. Any election by City to purchase or not to
purchase insurance for Developer shall not relieve Developer of its obligation to obtain
and maintain the insurance coverage required by this Agreement.
Section 5.12 Developer CC&Rs. Prior to City's issuance of a final certificate of
occupancy for any of individual residential dwelling units in the Residential Development,
Developer shall have submitted to City, obtained City's approval of (such approval not to
be unreasonably withheld, conditioned or delayed), and recorded against the underlying
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March 19, 2019 Item #3.1
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real property a declaration of covenants, conditions, and restrictions that (i) establishes a
homeowners' association, (ii) is necessary to create a condominium regime for the
condominiums described on the condominium plan to be recorded in accordance with all
applicable laws (for any portion of the Residential Development developed with
condominium -style units); and (iii) clearly sets forth the maintenance obligations of the
owners of the residential dwelling units (the "Developer CC&Rs"). The Developer
CC&Rs shall provide that the City is a third party beneficiary thereof with the right, but not
the obligation, to enforce the terms thereof which are required by this Section 5.12 (the
"City Required Provisions"), and shall require that (a) any proposed amendments to the
Developer CC&Rs that would amend any of the City Required Provisions must be
provided to City, (b) City shall have the right, in City's reasonable discretion, to provide a
written objection to any such proposed amendment, within thirty (30) days after City's
receipt of the proposed amendment, and (c) if no objection is provided by City within such
thirty (30) day period, the proposed amendment may be approved.
Section 5.13 Release of Construction Covenants.
(a) Following the completion of the Residential Development or Retail
Development (either of the foregoing, a "Project Component"), excluding any normal
and minor building "punch -list" items to be completed by Developer, and upon written
request from Developer for issuance of a Release of Construction Covenants, City shall
inspect the Project Component to determine whether or not the Project Component has
been completed in substantial conformance with this Agreement. If City determines that
the Project Component is complete and in substantial conformance with this Agreement,
which determination shall not be unreasonably withheld, City shall furnish Developer with
a Release of Construction Covenants for the Project Component. If City determines that
the Project Component is not in substantial conformance with this Agreement, City shall
send written notice of each non -conformity to Developer, pursuant to Section 5.13(c).
(b) A Release of Construction Covenants shall be evidence of City's
conclusive determination of satisfactory completion of the Project Component pursuant
to the terms of this Agreement. After the recordation of a Release of Construction
Covenants for the Project Component, any person then owning or thereafter purchasing,
leasing or otherwise acquiring any interest in the portion of the Property improved with
the Project Component shall not (because of such ownership, purchase, lease or
acquisition) incur any obligation or liability under this Agreement regarding construction
of the Project Component, except that such person shall be bound by any reservations,
covenants, conditions, restrictions and other interests affecting the such portion of the
Property pursuant to this Agreement.
(c) If City in its reasonable discretion fails or refuses to issue a Release
of Construction Covenants for a Project Component, following a written request from
Developer, City shall, within fifteen (15) calendar days following City's receipt of
Developer's written request or within three (3) calendar days after the next regular
meeting of the City Council, whichever date occurs later, provide Developer with a written
statement setting forth in reasonable detail the reasons for City's failure or refusal to issue
a Release of Construction Covenants. The statement shall also contain City's opinion of
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March 19, 2019 Item #3.1
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the action(s) Developer must take to obtain a Release of Construction Covenants from
City. If the reason for Developer's failure to complete the Project Component is confined
to the immediate unavailability of specific items or materials for construction or
landscaping at a price reasonably acceptable to Developer or other minor building
"punch -list" items, City may issue its Release of Construction Covenants upon the posting
of a bond or irrevocable standby letter of credit by Developer in a form reasonably
acceptable to City in an amount representing the fair value of the work on the Project
Component remaining to be completed, as reasonably determined by City. If City fails to
provide such written statement, within the specified time period, Developer shall be
deemed, conclusively and without further action of City, to have satisfied the requirements
of this Agreement with respect to the Project Component, as if a Release of Construction
Covenants had been issued by City pursuant to this Agreement.
(d) A Release of Construction Covenants shall not be deemed to
constitute a Notice of Completion under Section 3093 of the California Civil Code, nor
shall it act to terminate the continuing covenants, restrictions or conditions contained in
the City Grant Deed or any other instruments recorded against the Property or set forth
in this Agreement or otherwise. A Release of Construction Covenants is not evidence of
the compliance of the Project Component with any Governmental Requirements. A
Release of Construction Covenants shall not evidence the satisfaction of any obligation
of Developer to City under this Agreement or otherwise, except Developer's obligation to
construct the Project Component.
(e) Notwithstanding anything in this Section 5.13 to the contrary, at such
time as Developer has completed construction of a residential dwelling unit comprising a
portion of the Residential Development, as evidenced by City's issuance of a certificate
of occupancy for said dwelling unit, City agrees to execute a document in a form
reasonably acceptable to the Title Company terminating the Memorandum of Agreement
with respect to such dwelling unit.
Section 5.14 Comprehensive Retail Development; Phasing. Developer
represents to City that as of the Effective Date, Developer has negotiated in good faith
with the owners of various properties adjacent to the Retail Parcels to acquire those
parcels on commercially reasonable terms. During the term of this Agreement, Developer
shall continue to diligently pursue acquisition of suitable real properties, and attempt to
plan and design a Comprehensive Retail Development. Commencing on the first day of
the first calendar quarter following the Effective Date, Developer shall provide written
updates to the City Manager, on a quarterly basis, describing in reasonable detail
Developer's efforts during the immediately preceding quarter with respect to planning and
designing a Comprehensive Retail Development, and the outcome of such efforts.
(a) The Parties acknowledge and agree that the "Project" as defined in
this Agreement contemplates that Developer will fully develop the Comprehensive Retail
Development. Upon the Close of Escrow, Developer shall commence, and diligently
proceed to completion, the "Phase 1 Retail Development Work," as described in the
Scope of Development. If Developer is unable to plan and design a Comprehensive
Retail Development within two (2) years following the Effective Date, Developer and City
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March 19, 2019 Item #3.1
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shall meet and confer regarding an appropriate alternative development as the
Comprehensive Retail Development (an "Alternative Development"). If by the third
(3rd) anniversary of the Effective Date (the "Third Anniversary"), Developer has not been
able to plan and design a Comprehensive Retail Development, and the Parties have not
agreed on an appropriate Alternative Development, then City shall have a right to
purchase the Retail Parcels from Developer ("City's Retail Parcels Purchase Right")
for the greater of (i) the outstanding amount owed on the City Note, or (ii) eighty percent
(80%) of the appraised value of the Retail Parcels as of that date (the "Retail Parcels
Purchase Price"). City shall exercise City's Retail Parcels Purchase Right by providing
a written notice to Developer, within sixty (60) days after the Third Anniversary, stating
City's intention to exercise City's Retail Parcels Purchase Right, and purchase the Retail
Parcels ("City's Notice of Exercise"). The appraised value of the Retail Parcels shall be
determined by an appraisal conducted by an MAI appraiser selected by City and
reasonably acceptable to Developer. At such time as the Parties receive the appraisal,
City shall have the right to terminate its prior election to exercise City's Retail Parcels
Purchase Right ("City's Right of Termination"). City shall exercise City's Right of
Termination by providing a written notice to Developer, within thirty (30) days after the
Parties receive the appraisal. Notwithstanding anything in this Section 5.14 to the
contrary, the following shall apply if City elects to not exercise City's Retail Parcels
Purchase Right: If at any time within the three (3) year period after such election by City
Developer desires to develop the Retail Parcels with a residential development or sell the
Retail Parcels, as a condition to either of such action, Developer shall be required to pay
to City fifty percent (50%) of the difference between (a) the appraised value of the Retail
Parcels for residential use, determined by an appraisal conducted by an MAI appraiser
selected by City and reasonably acceptable to Developer, and (b) One Million Seven
Hundred Thousand Dollars ($1,700,000), which is the portion of the Purchase Price
attributable to the Retail Parcels.
(b) The provisions of this subparagraph (b) shall apply in the event City
exercises City's Retail Parcels Purchase Right, and does not exercise City's Right of
Termination. The provisions of this subparagraph (b) shall also apply in the event City
exercises its right of first refusal pursuant to Section 10.6 below, except to the extent the
provisions in this subparagraph (b) conflict with the Acceptable Terms or Acceptable Offer
(as applicable), as reasonably determined by the City Manager, in which case the
conflicting provisions of the Acceptable Terms or Acceptable Offer (as applicable) shall
control.
(1) Within thirty (30) business days after City exercises City's
Retail Parcels Purchase Right, Developer and City shall cause an escrow ("City's
Repurchase Escrow") to be opened with the Escrow Holder for the conveyance of the
Retail Parcels by Developer to City. City's Repurchase Escrow shall be deemed opened
on the date City delivers to Escrow Holder (a) a copy of this Section 5.14, and (b) a copy
of City's Notice of Exercise, accompanied by a written certification from City that City has
not exercised City's Right of Termination ("Opening of City's Repurchase Escrow").
Escrow Holder shall notify Developer and City in writing of the date of the Opening of
City's Repurchase Escrow promptly following the opening of City's Repurchase Escrow.
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March 19, 2019 Item #3.1
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(2) City's Repurchase Escrow shall close on or before the date
that is sixty (60) days after the Opening of City's Repurchase Escrow ("City's
Repurchase Escrow Closing Date"). The terms "Close of City's Repurchase Escrow"
and/or the "City's Repurchase Escrow Closing" shall mean the date the "City's
Repurchase Grant Deed" (as that term is defined in paragraph (6) below) conveying fee
title to the Retail Parcels to City is recorded in the Office of the County Recorder of San
Diego County, California. Possession of the Retail Parcels shall be delivered to City at
the Close of City's Repurchase Escrow free and clear of all tenancies, lessees,
occupants, and all possessory rights of any kind or nature.
(3) This Section 5.14, together with any standard instructions of
Escrow Holder, shall constitute the joint escrow instructions of Developer and City to
Escrow Holder as well as an agreement between Developer and City with respect to
Developer's conveyance to City of the Retail Parcels. In the event of any conflict between
the provisions of this Section 5.14 and Escrow Holder's standard instructions, this
Section 5.14 shall prevail.
(4) Developer shall convey and City shall accept fee simple title
to the Retail Parcels free and clear of all recorded and unrecorded monetary liens,
encumbrances, easements, leases, covenants, conditions, restrictions, and other
exceptions to or defects in title, excepting only the following: (a) the title exceptions listed
in City's Title Policy with respect to the Retail Parcels; (b) current taxes not yet delinquent;
(c) the lien of any construction loan obtained by Developer for construction of the Project
that has been approved by City; and (d) those additional title exceptions as may be
approved in writing by City in its sole and absolute discretion.
(5) Developer shall be responsible for all of the escrow fees,
recording fees, documentary transfer taxes, and any other costs and expenses of escrow,
and any property taxes and assessments and all costs required to place title in the
condition described in paragraph (4) above. Concurrently with the conveyance of the
Retail Parcels to City, and as a condition to City's acceptance of said conveyance,
Developer shall cause the Title Company to deliver to City an ALTA standard owner's
policy of title insurance showing title vested in City in the condition described in paragraph
(4) above with insurance coverage in the amount of the Retail Parcels Purchase Price
("City's Repurchase Title Policy"). Developer shall pay the premium for the City's
Repurchase Title Policy. City shall pay for any additional coverage or endorsements to
the City's Repurchase Title Policy.
(6) On or before 1:00 p.m. on the last business day preceding the
scheduled City's Repurchase Escrow Closing Date, City shall deposit or cause to be
deposited with Escrow Holder the following: the Retail Parcels Purchase Price, and any
and all additional instruments or other documents required from City (executed and
acknowledged if appropriate) as may be necessary in order to effect the transfer of the
Retail Parcels to City. On or before 1:00 p.m. on the last business day preceding the
scheduled City's Repurchase Escrow Closing Date, Developer shall deposit or cause to
be deposited with Escrow Holder the following: (a) an executed and acknowledged grant
deed conveying the Retail Parcels to City substantially in the form of the City Grant Deed
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("Retail Parcels Grant Deed"); (b) all escrow fees and closing costs; and (c) any and all
additional funds, instruments, or other documents required from Developer (executed and
acknowledged if appropriate), as may be necessary in order to effect the transfer of the
Retail Parcels to City.
(7) On or before the City's Repurchase Escrow Closing Date, and
when Escrow Holder has received all of the documents and funds listed in paragraph
(6) above, and Escrow Holder is in a position to cause the City's Repurchase Title Policy
referred to in paragraph (5) above to be issued to City, and provided City has approved
the physical condition of the Retail Parcels, Escrow Holder shall close the City's
Repurchase Escrow by (i) recording the Retail Parcels Grant Deed in the Office of the
Official Records of San Diego County, California, (ii) delivering the recorded Retail
Parcels Grant Deed to City, (iii) causing the City's Repurchase Title Policy to be issued
to City, and (iv) delivering the Retail Parcels Purchase Price to Developer.
Section 5.15 City Option to Repurchase Residential Parcels.
(a) Grant of Option., Developer hereby grants to City an option to
repurchase all or any portion of the Residential Parcels not yet then completed, as
evidenced by City's issuance of a certificate of occupancy ("Residential Parcels
Repurchase Option") on the terms set forth in this Section 5.15. The term of the
Residential Parcels Repurchase Option shall commence on the Close of Escrow and shall
extend to the Project Completion Date (the "Residential Parcels Repurchase Option
Period"). City's rights under the Residential Parcels Repurchase Option are in addition
to and are not limited by the City's Retail Parcels Purchase Right granted to City pursuant
to Section 5.14 above.
(b) Conditions to Exercise of Repurchase Option. City shall be entitled
to exercise the Residential Parcels Repurchase Option during the Residential Parcels
Repurchase Option Period in the event of the occurrence of any of the following events
(any such event, a "Residential Parcels Repurchase Option Event"):
(1) Developer's failure to commence vertical construction of the
First Phase of the Residential Development on the Residential Parcels within the time
frame therefor set forth in the Schedule of Performance, subject to the notice and right to
cure provisions set forth in Section 9.2(a) below, unless such failure is a result of an
"Adverse Market Condition" (as that term is defined below) or Unavoidable Delay.
(2) Developer's failure to diligently and continuously develop the
Residential Parcels and construct, complete and market residential units within the
Residential Parcels. Without limitation of the following, any period of inactivity in actually
conducting material construction work on the Residential Development within the
Residential Parcels until completion for more than forty five (45) days, subject to the notice
and right to cure provisions set forth in Section 9.2(a) below, unless such delays are
caused by an Adverse Market Condition or Unavoidable Delay.
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As used in this Section 5.15, the term "Adverse Market Condition"
shall mean and refer to adverse changes in economic conditions of the market for new
homes in general or in the City of Poway in particular. In the event of an Adverse Market
Condition that results in the occurrence of one of the failures described in paragraph (1)
or (2) above, Developer shall provide reasonable evidence thereof to City.
(c) Exercise of Residential Parcels Repurchase Option. City may, but
shall not be obligated to, exercise its Residential Parcels Repurchase Option following
the occurrence of any Residential Parcels Repurchase Option Event (but in no event later
than six (6) months following the occurrence of such Residential Parcels Repurchase
Option Event), City shall do so by delivery of written notice ("Residential Parcels
Repurchase Option Notice") thereof to Developer.
(d) Residential Parcels Repurchase Price. The price at which City shall
be entitled to repurchase the Residential Parcels ("Residential Parcels Repurchase
Price") shall be the lesser of (a) ninety percent (90%) of the appraised value of the
Residential Parcels or portion thereof which City is entitled, and elects, to purchase or (b)
the sum of (i) the "Base Price" plus (ii) the "Design and Hard Construction Costs" (as
those terms are defined below), if any, actually paid by Developer with respect to the
construction of improvements on the Residential Parcels or portion thereof which City is
entitled, and elects, to purchase, provided such Design and Hard Construction Costs
have been verified to City's reasonable satisfaction. Developer will present City with paid
invoices or other reasonable evidence to support the calculation of such costs. For the
purpose of this Section 5.15, the following defined terms shall have the following
meanings:
(i) "Base Price" means the applicable portion of Purchase Price
paid by Developer to City and to private parties for the acquisition of the Residential
Parcels or portion thereof which City is entitled, and elects, to purchase, and
(ii) "Design and Hard Construction Costs" means actual out
of pocket construction costs paid by Developer to any contractor (including but not
limited to the Contractor) or subcontractor for construction costs and materials and
inspection, payments made to consultants, architects, engineers, or other design
professionals, and building permit and similar fees actually paid by Developer to City or
other governmental agency for the construction of the Residential Development or
portion thereof which City is entitled, and elects, to purchase. Design and Hard
Construction Costs specifically exclude, without limitation, (1) salaries and other charges
for office personnel, (2) office expenses, (3) overhead and general expense of any kind,
(4) interest or return on capital, financing costs or expenses, or depreciation, (5)
insurance expenses, (6) sales and marketing expenses, (7) legal and accounting fees
and expenses, (8) taxes or assessments of any kind, or (9) any costs or expenses
attributable to the negligence or misconduct of Developer of its employees, agents, or
contractors.
(e) The appraised value of the Residential Parcels or portion thereof
which City is entitled, and elects, to purchase, shall be determined by an appraisal
conducted by an MAI appraiser selected by City and reasonably acceptable to
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Developer. At such time as the Parties receive the appraisal, City shall have the right to
terminate its prior election to exercise City's Residential Parcels Repurchase Option
("City's Residential Parcels Repurchase Option Right of Termination"). City shall
exercise City's Residential Parcels Repurchase Option Right of Termination by providing
a written notice to Developer, within thirty (30) days after the Parties receive the
appraisal. In the event City does not timely deliver its Residential Parcels Repurchase
Option Notice or in the event the City delivers the City's Residential Parcels Repurchase
Option Right of Termination, then the City's Residential Parcels Repurchase Option shall
be deemed terminated and of no further force or effect.
(f) The provisions of this subparagraph (f) shall apply in the event City
timely delivers its Residential Parcels Repurchase Option Notice and does not exercise
City's Residential Parcels Repurchase Right of Termination. The provisions of this
subparagraph (f) shall also apply in the event City exercises its right of first refusal
pursuant to Section 10.6 below, except to the extent the provisions in this subparagraph
(f) conflict with the Acceptable Terms or Acceptable Offer (as applicable), as reasonably
determined by the City Manager, in which case the conflicting provisions of the
Acceptable Terms or Acceptable Offer (as applicable) shall control.
(1) Within thirty (30) days after receipt of the appraisal, Developer
and City shall cause an escrow ("City's Residential Parcels Repurchase Escrow") to
be opened with the Escrow Holder for the conveyance of the Residential Parcels or
portion thereof which City has the right, and elects, to purchase, by Developer to
City. City's Residential Parcels Repurchase Escrow shall be deemed opened on the date
City delivers to Escrow Holder (a) a copy of this Section 5.15, and (b) a copy of City's
Notice of Exercise, accompanied by a written certification from City that City has not
exercised City's Right of Termination ("Opening of City's Residential Parcels
Repurchase Escrow"). Escrow Holder shall notify Developer and City in writing of the
date of the Opening of City's Residential Parcels Repurchase Escrow promptly following
the opening of City's Residential Parcels Repurchase Escrow.
(2) City's Residential Parcels Repurchase Escrow shall close on
or before the date that is sixty (60) days after the Opening of City's Residential Parcels
Repurchase Escrow ("City's Residential Parcels Repurchase Escrow Closing
Date"). The terms "Close of City's Residential Parcels Repurchase Escrow" and/or
the "City's Residential Parcels Repurchase Escrow Closing" shall mean the date the
"City's Residential Parcels Repurchase Grant Deed" (as that term is defined in
paragraph (6) below) conveying fee title to the Residential Parcels or portion thereof
which City has the right, and elects, to purchase, to City is recorded in the Office of the
County Recorder of San Diego County, California. Possession of the Residential Parcels
or portion thereof which City has the right, and elects, to purchase, shall be delivered to
City at the Close of City's Residential Parcels Repurchase Escrow free and clear of all
tenancies, lessees, occupants, and all possessory rights of any kind or nature.
(3) This Section 5.15, together with any standard instructions of
Escrow Holder, shall constitute the joint escrow instructions of Developer and City to
Escrow Holder as well as an agreement between Developer and City with respect to
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Developer's conveyance to City of the Residential Parcels or portion thereof which City
has the right, and elects, to purchase. In the event of any conflict between the provisions
of this Section 5.15 and Escrow Holder's standard instructions, this Section 5.15 shall
prevail.
(4) Developer shall convey and City shall accept fee simple title
to the Residential Parcels or portion thereof which City has the right, and elects, to
purchase, free and clear of all recorded and unrecorded monetary liens, encumbrances,
easements, leases, covenants, conditions, restrictions, and other exceptions to or defects
in title, excepting only the following: (a) the title exceptions listed in Developer's
Title Policy with respect to the Residential Parcels; (b) current taxes not yet delinquent;
(c) the lien of any construction loan obtained by Developer for construction of the Project
that has been approved by City; and (d) those additional title exceptions as may be
approved in writing by City in its sole and absolute discretion.
(5) Developer shall be responsible for all of the escrow fees,
recording fees, documentary transfer taxes, and any other costs and expenses of escrow,
and any property taxes and assessments and all costs required to place title in the
condition described in paragraph (4) above. Concurrently with the conveyance of the
Residential Parcels or portion thereof which City has the right, and elects, to purchase, to
City, and as a condition to City's acceptance of said conveyance, Developer shall cause
the Title Company to deliver to City an ALTA standard owner's policy of title insurance
showing title vested in City in the condition described in paragraph (4) above with
insurance coverage in the amount of the Residential Parcels Repurchase Price ("City's
Residential Parcels Repurchase Title Policy"). Developer shall pay the premium for
the City's Residential Parcels Repurchase Title Policy. City shall pay for any additional
coverage or endorsements to the City's Residential Parcels Repurchase Title Policy.
(6) On or before 1:00 p.m. on the last business day preceding the
scheduled City's Residential Parcels Repurchase Escrow Closing Date, City shall deposit
or cause to be deposited with Escrow Holder the following: the Residential Parcels
Repurchase Price, and any and all additional instruments or other documents required
from City (executed and acknowledged if appropriate) as may be necessary in order to
effect the transfer of the Residential Parcels or portion thereof that City has the right, and
elects, to purchase, to City. On or before 1:00 p.m. on the last business day preceding
the scheduled City's Residential Parcels Repurchase Escrow Closing Date, Developer
shall deposit or cause to be deposited with Escrow Holder the following: (a) an executed
and acknowledged grant deed conveying the Residential Parcels or portion thereof which
City has the right, and elects, to purchase, to City substantially in the form of the City
Grant Deed ("Residential Parcels Repurchase Grant Deed"); (b) all escrow fees and
closing costs; and (c) any and all additional funds, instruments, or other documents
required from Developer (executed and acknowledged if appropriate), as may be
necessary in order to effect the transfer of the Residential Parcels or portion thereof which
City has a right, and elects, to purchase, to City.
(7) On or before the City's Residential Parcels Repurchase
Escrow Closing Date, and when Escrow Holder has received all of the documents and
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funds listed in paragraph (6) above, and Escrow Holder is in a position to cause the City's
Residential Parcels Repurchase Title Policy referred to in paragraph (5) above to be
issued to City, and provided City has approved the physical condition of the Residential
Parcels or portion thereof which City has the right, and elects, to purchase, Escrow Holder
shall close the City's Residential Parcels Repurchase Escrow by (i) recording the
Residential Parcels Repurchase Grant Deed in the Office of the Official Records of San
Diego County, California, (ii) delivering the recorded Residential Parcels Repurchase
Grant Deed to City, (iii) causing the City's Repurchase Parcels Title Policy to be issued
to City, and (iv) delivering the Residential Parcels Repurchase Price to Developer.
ARTICLE VI
USE AND OPERATION OF THE PROJECT
Section 6.1 Encumbrances and Liens. Developer shall not record and shall not
allow to be recorded against the Property or any portion of the Property any mortgage,
trust deed, deed of trust, encumbrance or lien not expressly authorized by this
Agreement. Developer shall remove, or shall have removed, any unauthorized lien,
encumbrance, mortgage, levy or attachment made or recorded against the Property or
any portion of the Property, or shall assure the satisfaction thereof to the satisfaction of
City. The covenants of Developer set forth in this Section 6.2 regarding the placement of
any unauthorized mortgage, trust deed, deed of trust, encumbrance or lien on the
Property shall only remain in effect until the Project Completion Date.
Section 6.2 Nondiscrimination. In addition to any other nondiscrimination
provisions applicable to the Property under federal, state or local law, Developer
covenants by and for itself and any successors in interest that there shall be no
discrimination against or segregation of any person, or group of persons on any basis
listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
are defined in Sections 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, or
any part thereof, nor shall Developer, or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees of the Property, or any part thereof. The foregoing
covenants shall run with the land.
Developer agrees for itself and any successor in interest that Developer shall
refrain from restricting the rental, sale, or lease of any portion of the Property, or contracts
relating to the Property, on the basis of race, color, creed, religion, sex, marital status,
ancestry, or national origin of any person. All such deeds, leases or contracts shall
contain or be subject to substantially the following nondiscrimination or nonsegregation
clauses:
1. In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming
under or through them, that there shall be no discrimination against or segregation of, any
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person or group of persons on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections 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 premises herein conveyed, nor shall the grantee
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 premises herein conveyed. The foregoing covenants shall run with the land."
2. In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming
under or through him or her, and this lease is made and accepted upon and subject to
the following conditions: "That there shall be no discrimination against or segregation of
any person or group of persons, on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee
himself or herself, or any person claiming under or through him or her, establish or permit
any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy, of tenants, lessees, sublessees,
subtenants, or vendees in the premises herein leased. The foregoing covenants shall
run with the land"
3. In contracts: "There shall be no discrimination against or segregation
of, any person or group of persons on account of any basis listed in subdivision (a) or
(d) of Section 12955 of the Government Code, as those bases are defined in
Sections 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 premises which are the
subject of this agreement, nor shall the grantee 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 premises herein conveyed. The foregoing
covenants shall run with the land."
Section 6.3 Effect of Covenants. The covenants established in this Agreement
shall, without regard to technical classification and designation, be binding for the benefit
and in favor of City and City's successors and assigns, and any successor in interest to
the Property, together with any property acquired by Developer pursuant to this
Agreement, or any part thereof. The covenants against discrimination shall remain in
effect in perpetuity.
Section 6.4 Taxes and Assessments. Developer shall pay prior to delinquency
all real estate taxes and assessments on the Property, so long as Developer retains any
ownership interest therein. Developer shall remove or have removed any levy or
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attachment made on the Property or any part thereof, or assure the satisfaction thereof
within a reasonable time but in any event prior to any sale or transfer of all or any portions
thereof. Notwithstanding the above, Developer shall have the right to contest the validity
or amounts of any tax, assessment, or encumbrance available to Developer in respect
thereto, and nothing herein shall limit the remedies available to Developer in respect
thereto.
Section 6.5 Developer Covenant to Defend this Agreement. Developer
acknowledges that City is a "public entity" and/or a "public agency" as defined under
applicable California law. Therefore, City must satisfy the requirements of certain
California statutes relating to the actions of public entities, including, without limitation,
CEQA. Also, as a California municipal corporation, City's action in approving this
Agreement may be subject to proceedings to invalidate this Agreement or mandamus.
Developer assumes the risk of delays and damages that may result to Developer from
any third -party legal actions related to City's approval of this Agreement or the pursuit of
the activities contemplated by this Agreement, including, without limitation, City's approval
of any Project approvals and issuance of any permits required for development of the
Project, even in the event that an error, omission or abuse of discretion by City is
determined to have occurred. If a third -party files a legal action regarding City's approval
of this Agreement or the pursuit of the activities contemplated by this Agreement,
including, without limitation, City's approval of any Project approvals and issuance of any
permits required for development of the Project, City may terminate this Agreement on
thirty (30) days written notice to Developer of City's intent to terminate this Agreement,
referencing this Section 6.6, without any further obligation to perform the terms of this
Agreement and without any liability to Developer resulting from such termination, unless
Developer unconditionally agrees to indemnify and defend City and City Personnel, with
legal counsel acceptable to City, against such third -party legal action, as provided
hereinafter in this Section 6.6 Within 30 days of receipt of City's notice of intent to
terminate this Agreement, as provided in the preceding sentence, Developer may in
Developer's sole and absolute discretion offer to defend City, with legal counsel
acceptable to City, in the third -party legal action and pay all of the court costs, attorney
fees, monetary awards, sanctions, attorney fee awards, expert witness and consulting
fees, and the expenses of any and all financial or performance obligations resulting from
the disposition of the legal action. At the request of Developer, City shall cooperate with
and assist Developer in its defense of any such third -party legal action, provided that City
shall not be obligated to incur any expense in connection with such cooperation or
assistance.
ARTICLE VII
RIGHTS OF HOLDERS OF APPROVED SECURITY INTERESTS IN PROPERTY
Notwithstanding anything to the contrary in this Agreement, the provisions in this
Article VII shall automatically terminate upon City's issuance of a Release of Construction
Covenants for the Project.
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Section 7.1 No Encumbrances Except Mortgages, Deeds of Trust, or Sale and
Lease -Back for Development. Mortgages, deeds of trust, and sales and leases -back or
any other method of financing shall be permitted before the completion of the Project only
for the purpose of securing loans of funds to be used for financing the construction of the
Project, if necessary, and only if such loans are provided by an Institutional Lender or
other acceptable person or entity reasonably acceptable to City, on commercially
reasonable terms. Developer shall notify City in advance of any mortgage, deed of trust,
sale and lease -back or other form of conveyance for financing if Developer proposes to
enter into the same. Any such form of conveyance (i) shall only encumber the Residential
Parcels, and (ii) may be in a first -priority lien position. Any such construction loan may
include terms that convert the loan to a term loan upon completion of construction of the
Project. Developer shall not enter into any such conveyance that will encumber the Retail
Parcels without the prior written approval of City, which approval City may withhold in its
sole and absolute discretion.
Section 7.2 Holder Not Obligated to Construct Project. The holder of any
mortgage or deed of trust authorized by this Agreement shall not be obligated by the
provisions of this Agreement to construct, repair, or complete the Project or any portion
thereof, or to guarantee such construction or completion; nor shall any covenant or any
other provision in this Agreement 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.
Section 7.3 Notice of Default to Mortgagee or Deed of Trust Holders; Right to
Cure. With respect to any mortgage or deed of trust granted by Developer as provided
herein, whenever City may deliver any notice or demand to Developer with respect to any
breach or default by Developer in completion of construction of the Project, City shall at
the same time deliver a copy of such notice or demand to each holder of record of any
mortgage or deed of trust authorized by this Agreement who has previously requested
such notice in writing. Each such holder shall (insofar as the rights granted by City are
concerned) have the right, at its option, but not the obligation, within thirty (30) days after
the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter
to pursue with due diligence the cure or remedy of any such default and to add the cost
thereof to the mortgage debt and the lien of its mortgage. Nothing contained in this
Agreement shall be deemed to permit or authorize such holder to undertake or continue
the construction or completion of the Project, or any portion thereof (beyond the extent
necessary to conserve or protect the improvements or construction already made) without
first having expressly assumed Developer's obligations to City by written agreement
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. Any such holder properly completing such improvement shall be entitled, upon
compliance with the requirements of this Section 7.3, to a Release of Construction
Covenants. It is understood that a holder shall be deemed to have satisfied the thirty
(30) day time limit set forth above for commencing to cure or remedy a Developer default
which requires title and/or possession of the Property (or portion of this Agreement) if and
to the extent any such holder has within such thirty (30) day period commenced
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proceedings to obtain title and/or possession and thereafter the holder diligently pursues
such proceedings to completion and cures or remedies the default.
Section 7.4 Right of City to Cure Mortgage or Deed of Trust Default. In the
event of a mortgage or deed of trust default or breach by Developer prior to the completion
of construction of the Project or any part of this Agreement, Developer shall immediately
deliver to City a copy of any mortgage holder's notice of default. If the holder of any
mortgage or deed of trust has not exercised its option to construct, City shall have the
right but no obligation to cure the default. In such event, City shall be entitled to
reimbursement from Developer of all proper costs and expenses incurred by City in curing
such default. City shall also be entitled to a lien upon the Property to the extent of such
costs and disbursements. Any such lien shall be junior and subordinate to the mortgages
or deeds of trust permitted pursuant to Section 7.1.
Section 7.5 Right of City to Satisfy Other Liens on the Property. After the Close
of Escrow and prior to the completion of construction, and after Developer has had written
notice and has failed, after a reasonable time, to challenge, cure, or satisfy any other liens
or encumbrances on the Property, City shall have the right but no obligation to satisfy any
such other liens or encumbrances.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES OF DEVELOPER
Section 8.1 Representations and Warranties by Developer. Developer makes
the following representations, covenants and warranties, which shall be deemed to have
been given on the Effective Date and on each date thereafter until the Project Completion
Date, and acknowledges that the execution of this Agreement by City is made in material
reliance by City on such covenants, representations and warranties of Developer:
(a) Developer has taken all requisite action and obtained all requisite
consents in connection with entering into this Agreement, such that this Agreement is
valid and enforceable against Developer in accordance with its terms and each instrument
to be executed by Developer pursuant to or in connection with this Agreement will, when
executed, be valid and enforceable against Developer in accordance with its terms.
No approval, consent, order or authorization of, or designation or declaration of any other
person, is required in connection with the valid execution, delivery or performance of this
Agreement by Developer.
(b) If Developer becomes aware of any act or circumstance that would
change or render incorrect, in whole or in part, any representation or warranty made by
Developer under this Agreement, whether as of the date given or any time thereafter,
whether or not such representation or warranty was based upon Developer's knowledge
and/or belief as of a certain date, Developer will give immediate written notice of such
changed fact or circumstance to City.
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ARTICLE IX
DEFAULTS, REMEDIES AND TERMINATION
Section 9.1 Defaults - General.
(a) Subject to any extensions of time provided for in this Agreement,
failure or delay by either Party to perform any term or provision of this Agreement within
thirty (30) calendar days after receipt of written notice from the injured Party specifying
such default, or if such default cannot reasonably be cured within thirty (30) days, to
commence to cure, correct or remedy such default and to diligently and continuously
prosecute such cure, correction or remedy to completion, shall constitute a default under
this Agreement.
(b) Delay in giving such written notice shall not constitute a waiver of any
default nor shall it change the time of default.
(c) Any failure or delays by either Party in asserting any of their rights
and/or remedies as to any default shall not operate as a waiver of any default or of any
such rights or remedies. Delays by either Party in asserting any of their rights and/or
remedies shall not deprive either Party of its right to institute and maintain any actions or
proceedings that it may deem necessary to protect, assert or enforce any such rights or
remedies.
Section 9.2 Events of Default. In addition to other acts or omissions of
Developer that may constitute a default or breach of this Agreement, the occurrence of
any of the following specific events, prior to the issuance of a Release of Construction
Covenants for the Project, shall constitute an "Event of Default" under this Agreement
and shall not be subject to the provisions of Section 9.1:
(a) Any default by Developer of any of the non -monetary covenants and
conditions of this Agreement that is not cured within thirty (30) days following written
notice of the default to Developer from City or the expiration of an applicable shorter cure
period set forth in this Agreement, or if such default cannot reasonably be cured within
the applicable cure period, to commence to cure, correct or remedy such and to diligently
and continuously prosecute such cure, correction or remedy to completion.
(b) Any representation, warranty or disclosure made to City by
Developer regarding this Agreement or the Project is materially false or misleading at the
time it is made.
(c) Developer fails to make any payment or deposit of funds required
under this Agreement, or to pay any other charge set forth in this Agreement, following
seven (7) days' written notice to Developer from City of such failure.
(d) Any material deviation in the work of improvement of the Project from
the approved Scope of Development, other than Minor Field Changes, without the prior
written approval of City, which approval shall not be unreasonably withheld or delayed,
or the appearance, during the course of initial construction, of materially defective
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workmanship or materials and such material defects are not corrected or substantially
corrected, within thirty (30) days after receipt of written notice thereof from City to
Developer, subject to a time extension as required in order to address any subcontractor
disputes, design a "fix" for the defects and to allow the same to be so repaired.
(e) The construction of the Project is delayed or suspended, or the
development of the Project does not proceed with reasonable due diligence, pursuant to
the Schedule of Performance, subject to the occurrence of Unavoidable Delays.
(f) The Developer sells, Transfers, hypothecates, encumbers or assigns
its interest in this Agreement, the Property or any portion thereof, whether voluntarily or
involuntarily or by operation of law, in violation of the terms and conditions of this
Agreement; it being agreed that Permitted Transfers shall not be in violation hereof.
Section 9.3 Liquidated Damages to City.
(a) UPON THE OCCURRENCE, PRIOR TO THE CLOSE OF
ESCROW, OF AN EVENT OF DEFAULT, OR OTHER MATERIAL DEFAULT OF
DEVELOPER UNDER THIS AGREEMENT THAT IS NOT CURED WITHIN THE
APPLICABLE CURE PERIOD SET FORTH IN THIS AGREEMENT, CITY MAY
TERMINATE THIS AGREEMENT AND CANCEL THE ESCROW, PURSUANT TO
SECTION 4.10, WITHOUT ANY LIABILITY OF CITY TO DEVELOPER OR ANY OTHER
PERSON ARISING FROM SUCH ACTIONS. CITY AND DEVELOPER
ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND IMPRACTICAL, IF NOT
IMPOSSIBLE, TO ASCERTAIN THE AMOUNT OF DAMAGES THAT WOULD BE
SUFFERED BY CITY, IN THE EVENT OF A TERMINATION OF THIS AGREEMENT
DUE TO THE OCCURRENCE, PRIOR TO THE CLOSE OF ESCROW, OF AN EVENT
OF DEFAULT, OR OTHER MATERIAL DEFAULT OF DEVELOPER UNDER THIS
AGREEMENT THAT IS NOT CURED WITHIN THE APPLICABLE CURE PERIOD SET
FORTH IN THIS AGREEMENT. HAVING MADE DILIGENT BUT UNSUCCESSFUL
ATTEMPTS TO ASCERTAIN THE ACTUAL DAMAGES CITY WOULD SUFFER, IN THE
EVENT OF A TERMINATION OF THIS AGREEMENT DUE TO THE OCCURRENCE,
PRIOR TO THE CLOSE OF ESCROW, OF AN EVENT OF DEFAULT, OR OTHER
MATERIAL DEFAULT OF DEVELOPER UNDER THIS AGREEMENT THAT IS NOT
CURED WITHIN THE APPLICABLE CURE PERIOD SET FORTH IN THIS
AGREEMENT, CITY AND DEVELOPER AGREE THAT A REASONABLE ESTIMATE OF
CITY'S DAMAGES IN SUCH EVENT IS THE EARNEST MONEY DEPOSIT OF TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000). THEREFORE, UPON THE
TERMINATION OF THIS AGREEMENT BY CITY DUE TO THE OCCURRENCE, PRIOR
TO THE CLOSE OF ESCROW, OF AN EVENT OF DEFAULT, OR OTHER MATERIAL
DEFAULT OF DEVELOPER UNDER THIS AGREEMENT THAT IS NOT CURED
WITHIN THE APPLICABLE CURE PERIOD SET FORTH IN THIS AGREEMENT,
ESCROW HOLDER SHALL IMMEDIATELY CANCEL THE ESCROW AND CITY SHALL
BE ENTITLED TO RETAIN THE EARNEST MONEY DEPOSIT. RETENTION OF THE
EARNEST MONEY DEPOSIT SHALL BE CITY'S SOLE AND EXCLUSIVE REMEDY
UPON THE OCCURRENCE, PRIOR TO THE CLOSE OF ESCROW, OF AN EVENT OF
DEFAULT OR OTHER MATERIAL DEFAULT OF DEVELOPER UNDER THIS
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AGREEMENT THAT IS NOT CURED WITHIN THE APPLICABLE CURE PERIOD SET
FORTH IN THIS AGREEMENT.
(b) CITY ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE
SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS
SECTION 9.3, WHICH CIVIL CODE SECTION READS AS FOLLOWS:
A general release does not extend to claims which the creditor
or releasing party does not know or suspect to exist in his or
her favor at the time of executing the release and that, if
known by him or her, would have materially affected his or her
settlement with the debtor or released party.
(c) BY INITIALING BELOW, CITY KNOWINGLY AND VOLUNTARILY
WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE
WAIVERS AND RELEASES OF THIS SECT -ION 9.3:
\J/vk
CITY'S INITIALS
Section 9.4 Developer's Limitation on Recovery of Damages Prior to Close of
Escrow.
(a) IN THE EVENT OF ANY MATERIAL BREACH OF THIS
AGREEMENT BY CITY PRIOR TO THE CLOSE OF ESCROW, DEVELOPER'S
REMEDIES SHALL BE LIMITED TO A CHOICE BETWEEN (1) SPECIFIC
PERFORMANCE OR (2) TERMINATION OF THIS AGREEMENT AND RECOVERY OF
THE EARNEST MONEY DEPOSIT. DEVELOPER WAIVES ANY RIGHT TO RECOVER
ANY OTHER SUMS FROM CITY ARISING FROM A MATERIAL BREACH OF THIS
AGREEMENT BY CITY PRIOR TO THE CLOSE OF ESCROW. NOTWITHSTANDING
THE FOREGOING OR ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, IF SPECIFIC PERFORMANCE OF THIS AGREEMENT IS NOT
AVAILABLE TO DEVELOPER BECAUSE (A) CITY HAS SOLD, OR GRANTED AN
OPTION AS TO, THE PROPERTY TO A THIRD PARTY, OR (B) CITY HAS
MORTGAGED OR OTHERWISE BY AFFIRMATIVE ACTION OF CITY ENCUMBERED
THE PROPERTY, AND IS UNWILLING OR UNABLE TO REMOVE SUCH MORTGAGE
OR ENCUMBRANCE (IT BEING UNDERSTOOD THAT IF CITY IS UNWILLING OR
UNABLE TO REMOVE SUCH MORTGAGE OR ENCUMBRANCE, DEVELOPER SHALL
HAVE THE RIGHT TO REMOVE SUCH MORTGAGE OR ENCUMBRANCE THROUGH
PAYMENT ON BEHALF OF CITY AND TO OBTAIN A CREDIT TOWARDS THE
PURCHASE PRICE IN THE AMOUNT OF SUCH PAYMENT), THEN IN ADDITION TO
THE RETURN OF THE EARNEST MONEY DEPOSIT, CITY SHALL REIMBURSE
DEVELOPER FOR DEVELOPER'S ACTUAL OUT-OF-POCKET, THIRD PARTY
COSTS IN CONNECTION WITH ITS DUE DILIGENCE INVESTIGATION AND
RELATED ACTIVITIES AND ITS LEGAL FEES IN NEGOTIATING AND DRAFTING
THIS AGREEMENT AND RELATED DOCUMENTS, SUCH AMOUNT NOT TO EXCEED
TWO HUNDRED THOUSAND DOLLARS ($200,000) IN TOTAL, WHICH EXPENSES
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SHALL BE IDENTIFIED ON A WRITTEN SCHEDULE (TOGETHER WITH
REASONABLY SUFFICIENT BACK-UP DOCUMENTATION EVIDENCING THE
EXPENSES INCURRED) DELIVERED BY DEVELOPER TO CITY. DEVELOPER
ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE
TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 9.4, WHICH CML
CODE SECTION READS AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
(b) BY INITIALING BELOW, DEVELOPER KNOWINGLY AND
VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN
CONNECTION WITH THE W D RELEASES OF THIS SECTION 9.4:
F3ER'S INITIALS
Section 9.5 Legal Actions.
(a) In addition to any other rights or remedies and subject -to the
restrictions set forth in this Agreement, following the Close of Escrow, either Party may
institute an action at law or equity to seek specific is performance of the terms of this
Agreement, or to cure, correct or remedy any default, to recover damages for any default
(subject to the restriction on Developer's rights to recover monet iy damages against City
set forth in the final clause of this sentence), or to obtain any other remedy consistent with
the purpose of this Agreement provided, however, that notwithstanding anything in the
foregoing to the contrary, with the exception of Developer's rights pursuant to Section 9.4
above, in no event shall Developer be entitled to obtain monetary damages of any kind
from City, including but not limited to damages for economic loss, lost profits, or any other
economic or consequential damages of any kind. Such legal actions must be instituted
in the Superior Court of the State of California in and for the County of San Diego,
California, in any other appropriate court within the County of San Diego, California, or in
the United States District Court for the Central District of California.
(b) The laws of the State of California shall govern the interpretation and
enforcement of this Agreement. The Parties acknowledge and agree that this Agreement
is entered into, is to be fully performed in and relates to real property located in the City
of Poway, County of San Diego, California.
Section 9.6 Rights and Remiodieg are. Cumulative. Except as otherwise
expressly stated in this Agreement, the rights andremedies of the Parties as set forth in
this Section 9.6 are cumulative and the exercise by either Party of one or more of such
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rights or remedies shall not preclude the exercise by it, at the same or different times, of
any other rights or remedies for the same default or any other default by the other Party.
Section 9.7 Attorneys' Fees. If either Party to this Agreement is required to
initiate or defend litigation in any way connected with this Agreement, the prevailing Party
in such litigation, in addition to any other relief which may be granted, whether legal or
equitable, shall be entitled to reasonable attorneys' fees. If either Party to this Agreement
is required to initiate or defend litigation with a third party because of the violation of any
term or provision of this Agreement by the other Party, then the Party so litigating shall
be entitled to reasonable attorneys' fees from the other Party to this Agreement.
Attorneys' fees shall include attorney's fees on any appeal, and in addition a Party entitled
to attorney's fees shall be entitled to all other reasonable costs for investigating such
action, retaining expert witnesses, taking depositions and discovery, and all other
necessary costs incurred with respect to such litigation. All such fees shall be deemed to
have accrued on commencement of such action and shall be enforceable whether or not
such action is prosecuted to judgment.
Section 9.8 Developer Indemnification of the City. In addition to any other
specific indemnification or defense obligations of the Developer set forth in this
Agreement, the Developer agrees to indemnify, defend (upon written request by the City
and with counsel reasonably acceptable to the City) and hold harmless the City and City
Personnel from any and all losses, liabilities, charges, damages, claims, liens, causes of
action, awards, judgments, costs and expenses, including, but not limited to reasonable
attorney's fees of counsel retained by the City, expert fees, and investigation costs, of
whatever kind or nature (collectively, "Claims"), that are in any manner directly or
indirectly caused, occasioned or contributed to in whole or in part, through any act,
omission, fault or negligence, whether active or passive, of Developer or Developer's
officers, agents, employees, independent contractors, subcontractors of any tier,
or authorized representatives, relating in any manner to this Agreement, any work to be
performed by Developer related to this Agreement, the Project, or any authority or
obligation exercised or undertaken by Developer under this Agreement, except to the
extent any such Claims are caused by the willful misconduct or active negligence of any
of City and City Personnel. Without limiting the generality of the foregoing, Developer's
obligation to indemnify City shall include injury or death to any person or persons, damage
to any property, regardless of where located, including the property of City, any workers'
compensation or prevailing wage determination, claim or suit or any other matter arising
from or connected with any goods or materials provided or services or labor performed
regarding the Project or the Property on behalf of Developer by any person or entity.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 Notices, Demands and Communications Between the Parties.
(a) Any and all notices, demands or communications submitted by any
Party to another Party pursuant to or as required by this Agreement shall be proper, if in
writing and dispatched by messenger for immediate personal delivery, by a nationally
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recognized overnight courier service or by registered or certified United States mail,
postage prepaid, return receipt requested, to the principal office of City or Developer, as
applicable, as designated in subsection (b). Such written notices, demands and
communications may be sent in the same manner to such other addresses as either Party
may from time to time designate. Any such notice, demand or communication shall be
deemed to be received by the addressee, regardless of whether or when any return
receipt is received by the sender or the date set forth on such return receipt, on the day
that it is delivered by personal delivery, on the date of delivery by a nationally recognized
overnight courier service or three (3) calendar days after it is placed in the United States
mail, as provided in this Section 10.1(a).
(b) The following are the authorized addresses for the submission of
notices, demands or communications to the Parties:
To the Developer:
Poway Commons, LLC
c/o Meridian Development, LLC
9988 H i be rt Street, Suite 210
San Diego, CA 92131
Attention: Guy As a ro
With copy to: Higgs, Fletcher & Mack, LLP
401 West "A" Street, Suite 2600
San Diego, CA 92101
Attention: Tim Waters, Esq.
To the City: City of Poway
13325 Civic Center Drive
Poway, CA 92064
Attention: City Manager
With copies to: Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Attention: Alan Fenstermacher, Esq.
Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Attention: John A. Ramirez, Esq.
Section 10.2 Conflict of Interest. No member, official or employee of City having
any conflict of interest, direct or indirect, related to this Agreement or the development of
the Project shall participate in any decision relating to this Agreement. The Parties
represent and warrant that they do not have knowledge of any such conflict of interest.
Section 10.3 Warranty Against Payment of Consideration for Agreement.
Developer warrants that it has not paid or given, and will not pay or give, any third party
any money or other consideration for obtaining this Agreement. Third parties, for the
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purposes of this Section 10.3, shall not include persons to whom fees are paid for
professional services, if rendered by attorneys, financial consultants, accountants,
engineers, architects and the like when such fees are considered necessary by
Developer.
Section 10.4 Non -liability of City Officials and Employees. No member, official
or employee of City shall be personally liable to Developer, or any successor in interest,
in the event of any default or breach by City under this Agreement or for any amount that
may become due to Developer or to its successor, or on any obligations under the terms
of this Agreement, except as may arise from the gross negligence or willful acts of such
member, official or employee.
Section 10.5 Unavoidable Delay; Extension of Time of Performance.
(a) Subject to specific provisions of this Agreement, performance by
either Party under this Agreement shall not be deemed to be in default, or considered to
be a default, where any such delays or defaults are due to an Unavoidable Delay that is
not attributable to the fault of the Party claiming an extension of time to perform. An
extension of time for any Unavoidable Delay shall be for the period of the Unavoidable
Delay and shall commence to run from the date of occurrence of the Unavoidable Delay,
but only if the Party asserting the existence of the Unavoidable Delay has first provided
the other Party with written notice of the occurrence of the Unavoidable Delay, within ten
(10) days of the commencement of such asserted Unavoidable Delay.
(b) The Parties expressly acknowledge and agree that changes in either
general economic conditions or changes in the economic assumptions of either of them
that may have provided a basis for entering into this Agreement and that occur at any
time after the execution of this Agreement, do not constitute an Unavoidable Delay and
do not provide any Party with grounds for asserting the existence of an Unavoidable Delay
in the performance of any covenant or undertaking arising under this Agreement. Each
Party expressly assumes the risk that changes in general economic conditions or
changes in such economic assumptions relating to the terms and covenants of this
Agreement could impose an inconvenience or hardship on the continued performance of
such Party under this Agreement.
Section 10.6 Right of First Refusal. Upon the Close of Escrow, City shall have
a right of first refusal with respect to any sale of the Property, pursuant to the following
process:
If at any time prior to the Project Completion Date, Developer (i) receives an offer
acceptable to Developer for the purchase of the Property (or any portion thereof not
completed) (an "Acceptable Offer"), or (ii) determines terms on which Developer is
willing to sell the Property (or applicable portion thereof) ("Acceptable Terms"), then
Developer shall forthwith forward a copy of such Acceptable Offer or Acceptable Terms
(as applicable) to City.
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March 19, 2019 Item #3.1
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City shall have a period of sixty (60) days after receiving such copy of the
Acceptable Offer or Acceptable Terms (as applicable) within which to notify Developer
that City elects to purchase the Property (or applicable portion thereof) on the terms
contained therein (except, with respect to an Acceptable Offer, any terms not relevant to
City's purchase of the Property (or applicable portion thereof), such as contingency
clauses, etc.) (a "Right of First Refusal Exercise Notice"). Any Right of First Refusal
Exercise Notice shall be accompanied by any earnest money required under the terms of
the Acceptable Offer (if applicable), and collectively with the Acceptable Offer or
Acceptable Terms (as applicable) shall then constitute a contract between City and
Developer.
If City does not provide a Right of First Refusal Notice within the sixty (60) day
period stated in the immediately preceding paragraph, City shall be deemed to have
waived its right of first refusal with respect to the foregoing Acceptable Offer or Acceptable
Terms, and City shall upon request execute and deliver an instrument in recordable form
appropriate to evidence City's relinquishment of its rights under this Section 10.6 with
respect to such transaction. Notwithstanding any such relinquishment, City's rights under
this Section 10.6 shall remain in effect if the transaction contemplated by the Acceptable
Offer or a transaction pursuant to the Acceptable Terms (as applicable) fails for any
reason to close, with respect to any subsequent offer to purchase the Property (or
applicable portion thereof). Nothing in this Section 10.6 authorizes Developer to sell any
portion of the Property in violation of the provisions of Section 1.3 of this Agreement.
Section 10.7 Real Estate Commissions. City shall not be liable for any real
estate commissions, brokerage fees or finder fees that may arise from or be related to
this Agreement. Developer shall pay any fees or commissions or other expenses related
to its retention or employment of real estate brokers, agents or other professionals.
Section 10.8 Binding on Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Parties and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
Section 10.9 Entire Agreement. This Agreement integrates all of the terms and
conditions mentioned in this Agreement or incidental to this Agreement, and supersedes
all negotiations or previous agreements between the Parties with respect to the Property
and the Project.
Section 10.10 No Merger. None of the terms, covenants, agreements or
conditions set forth in this Agreement shall be deemed to be merged with any deed
conveying title to the Property, and this Agreement shall continue in full force and effect
before and after such conveyances.
Section 10.11 Waivers. All waivers of the provisions of this Agreement and all
amendments to this Agreement must be in writing and signed by the authorized
representative(s) of both City and Developer.
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Section 10.12 Survival of Indemnity Obligations. All general and specific
indemnity and defense obligations of the Parties set forth in this Agreement shall survive
the expiration or termination of this Agreement and the execution or recordation of the
City Grant Deed and/or City's issuance of a Release of Construction Covenants for the
Project for a period of three (3) years.
Section 10.13 City Approvals and Actions. City shall maintain authority of this
Agreement and the authority to implement this Agreement through the City Manager (or
his or her duly authorized representative). The City Manager shall have the authority to
make approvals, issue interpretations, execute documents, waive provisions, and/or
enter into certain amendments of this Agreement on behalf of City so long as such actions
do not materially or substantially change the basic business terms hereof, change the
uses or development permitted on the Property, or add to the costs incurred or to be
incurred by City as specified herein, and such approvals, interpretations, waivers and/or
amendments may include extensions of time to perform as set forth in Section 5.5. All
other material and/or substantive interpretations, waivers, or amendments shall require
the consideration, action and written consent of the City Council.
Section 10.14 Developer Termination. In the event that prior to the Close of
Escrow all or a portion of the Property is condemned or there is a written threat of
condemnation issued by a governmental authority or there is a spill or release of any
Hazardous Substances not caused by Developer upon the Property, then Developer shall
have the right, but not the obligation and upon written notice to City, to terminate the
Agreement and be refunded the Earnest Money Deposit.
Section 10.15 Possession. Upon the Escrow Closing Date, City shall deliver
possession of the Property to Developer (or its assignee) free and clear of all rights or
claims to possession and use.
Section 10.16 Termination. Except where expressly set forth herein, Developer's
obligations hereunder shall terminate upon the issuance of the Release of Construction
Covenants.
Section 10.17 Counterparts. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement binding on both Parties
hereto, notwithstanding that both Parties are not signatories to the same counterpart.
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SIGNATURE PAGE FOLLOWS]
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March 19, 2019 Item #3.1
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IN WITNESS WHEREOF, City and Developer have executed this Purchase, Sale,
and Development Agreement by and through the signatures of their duly authorized
representative(s) set forth below:
"City"
CITY OF POWAY,
a California municip I corporatio
By: / 6'76U / --7.—_
Tina M. White, City Manager
ATTEST:
ice• • �v� .
V ( �l�
Faviola M:tir� . ,City erk
APPROVED AS TO FORM:
Alan Fenstermacher, City Attorney
"Developer":
POWAY COMMONS, LLC, a Delaware limited
liability company
By:
_58-
Guy Asaro, Manager
Resolution No. 19-013
IN WITNESS WHEREOF, City and Developer have executed this Purchase, Sale,
and Development Agreement by and through the signatures of their duly authorized
representative(s) set forth below:
acity
CITY OF POWAY,
a California municipal corporation
By:
ATTEST:
Faviola Medina, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Alan Fensterrnacher, City Attorney
asuaizraz-oozy
iralirw"
Tina M. White, City Manager
"Develo►per":
POWAY COMMONS, LLC,
liability compan
By:
n ger
aware limited
March 19, 2019 ftem #3.1
Resolution No. 19-013
ATTACHMENT NO. 1
LEGAL DESCRIPTIONS
A. Legal Description of City -Owned Property
13029 1/2 Poway Road: Real property in the City of Poway, County of San Diego,
State of California, described as follows:
PARCEL A:
PARCEL 2, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, AS SHOWN AT PAGE 8847 OF PARCEL MAPS, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 21, 1979.
EXCEPTING THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 2; THENCE
WESTERLY ALONG THE SOUTHERLY LINE THEREOF A DISTANCE OF 100.29
FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH 0° 51' 30" EAST OF 0.40
FEET; THENCE SOUTH 89° 08' 30" EAST PARALLEL WITH SAID SOUTH LINE A
DISTANCE OF 19.80 FEET; THENCE SOUTH 88° 59' 58" EAST 80.49 FEET TO THE
INTERSECTION WITH THE EASTERLY LINE OF SAID PARCEL 2; THENCE
SOUTHERLY ALONG SAID EASTERLY LINE A DISTANCE OF 0.20 FEET TO THE
POINT OF BEGINNING.
PARCEL B.
AN EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES OVER, UNDER,
ALONG AND ACROSS THE WESTERLY 30.00 FEET OF PARCEL 1, IN THE COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA, AS SHOWN AT PAGE 8847 OF PARCEL
MAPS, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, JUNE 21, 1979.
PARCEL C:
AN EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES OVER, UNDER,
ALONG AND ACROSS A STRIP OF LAND 30.00 FEET IN WIDTH LYING WITHIN THE
NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 13,
TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL
PLAT THEREOF, THE EASTERLY LINE OF SAID STRIP BEING THE MOST
WESTERLY LINE OF PARCELS 1 AND 2 AS SHOWN AT PAGE 8847 OF PARCEL
MAPS, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, JUNE 21, 1979.
AP N : 317-472-25
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13053 Poway Road: Real property in the City of Poway, County of San Diego, State of
California, described as follows:
PARCEL A:
THE SOUTHERLY 100.00 FEET OF THE NORTHERLY 315.00 FEET OF THE
EASTERLY 133.495 FEET OF THE WESTERLY 466.99 FEET OF THE NORTHWEST
QUARTER OF THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 14
SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF.
PARCEL B:
AN EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES TO BE USED IN
COMMON WITH OTHERS OVER, UNDER, ALONG, AND ACROSS A STRIP OF LAND
60.00 FEET IN WIDTH LYING WITHIN THE NORTHWEST QUARTER OF THE
SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST,
SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, THE CENTER LINE OF
SAID 60.00 FOOT STRIP BEING DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF PARCEL 1 ABOVE; THENCE
NORTHERLY ALONG THE WESTERLY LINE OF SAID PARCEL 1 AND THE
NORTHERLY EXTENSION OF SAID WESTERLY LINE 265.00 FEET TO THE SOUTH
LINE OF THE NORTH 50.00 FEET OF THE SAID NORTHWEST QUARTER OF THE
SOUTHWEST QUARTER OF SECTION 13.
EXCEPTING THEREFROM THAT PORTION INCLUDED WITHIN PARCEL A
HEREINABOVE DESCRIBED.
PARCEL C:
AN EASEMENT FOR PUBLIC UTILITY PURPOSES OVER, UNDER, AND
ACROSS THE SOUTHERLY 5.00 FEET OF THE NORTHERLY 315.00 FEET OF
THAT PORTION OF THE NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN
BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, , STATE OF
CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER
OF SAID SECTION 13; THENCE ALONG THE WESTERLY LINE OF SAID
SOUTHWEST QUARTER, SOUTH 00° 49' 00" WEST,
614.99 FEET TO THE MOST WESTERLY NORTHWEST CORNER OF LAND
DESCRIBED IN DEED TO RUDOLPH WALTER MATZ, ET AL, RECORDED
SEPTEMBER 13, 1956 IN BOOK 6255, PAGE 520 OF OFFICIAL RECORDS; THENCE
ALONG THE BOUNDARY OF SAID MATZ'S LAND AS FOLLOWS: SOUTH 89° 08'
30" EAST, 733.99 FEET, AND NORTH 01 ° 07' 00" EAST, 615.00 FEET TO THE
NORTHERLY LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 13;
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THENCE ALONG THE NORTHERLY LINE OF SAID SOUTHWEST QUARTER,
NORTH 89° 08' 30" WEST TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE WESTERLY 466.99 FEET. EXCEPTING
THEREFROM THE EASTERLY 134.26 FEET.
PARCEL D:
THAT PORTION OF PARCEL 2, IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, AS SHOWN AT PAGE 8847 OF PARCEL MAPS, FILED IN THE OFFICE
OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 21, 1979, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 2; THENCE ALONG
THE SOUTHERLY LINE OF SAID PARCEL 2 NORTH 89° 08' 30" WEST, 100.29 FEET;
THENCE LEAVING SAID SOUTHERLY LINE NORTH 00° 51' 30" EAST. 0.40 FEET;
THENCE PARALLEL WITH THE SOUTHERLY LINE OF SAID PARCEL 2, SOUTH 89°
08' 30' EAST, 19.80 FEET; THENCE SOUTH 88° 59' 58" EAST, 80.49 FEET TO THE
EASTERLY LINE OF SAID PARCEL 2; THENCE ALONG SAID EASTERLY LINE
SOUTH 00° 49' 00" WEST,
0.20 FEET TO THE POINT OF BEGINNING.
AP N : 317-472-24
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13033 Poway Road: Real property in the City of Poway, County of San Diego, State of
California, described as follows:
PARCEL 1:
LOT 2 AND THAT PORTION OF LOT 1 OF K.N.Q. DEVELOPMENT IN THE COUNTY
OF SAN DIEGO, STATE OF CALIFORNIA ACCORDING TO MAP THEREOF NO. 8019
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
SEPTEMBER 12, 1974, BEING A PORTION OF THE NORTHWEST QUARTER OF THE
SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST,
SAN BERNARDINO MERIDIAN, ACCORDING TO THE U.S. GOVERNMENT SURVEY
APPROVED NOVEMBER 19, 1880, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 2 OF MAP NO. 8019;
THENCE ALONG THE SOUTHERLY LINE OF SAID MAP 8019 SOUTH 89°08'30"
EAST 281.73 FEET; THENCE NORTH 1 °07'00" EAST 270.00 FEET TO THE NORTH
LINE OF SAID LOT 1; THENCE NORTH 89°08'30" WEST 149.67 FEET TO A
TANGENT 30.00 FOOT RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE
ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 90°00'00" A DISTANCE OF
47.12 FEET; THENCE NORTH 89°08'30" WEST 103.50 FEET TO THE WEST LINE
OF SAID MAP 8019; THENCE SOUTH 0°49'00" WEST 300.00 FEET TO THE POINT
OF BEGINNING.
PARCEL 2:
AN EASEMENT AND RIGHT OF WAY FOR ROAD AND PUBLIC UTILITY PURPOSES
OVER, UNDER, ALONG AND ACROSS A STRIP OF LAND 60.00 FEET IN WIDTH,
LYING WITHIN THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO BASE
AND MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,
ACCORDING TO UNITED STATES GOVERNMENT SURVEY APPROVED
NOVEMBER 19, 1880, THE CENTER LINE OF SAID STRIP OF LAND BEING THE
EASTERLY LINE OF THE SOUTHERLY 265.00 FEET OF THE NORTHERLY
315.00 FEET OF THE WEST HALF OF THE EASTERLY 266.99 FEET OF THE
WESTERLY 466.99 FEET OF THAT PORTION OF THE NORTHWEST QUARTER
OF THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 14 SOUTH,
RANGE 2 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES
GOVERNMENT SURVEY APPROVED NOVEMBER 19, 1880, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF
SAID SECTION 13; THENCE ALONG THE WESTERLY LINE OF SAID SOUTHWEST
QUARTER, SOUTH 00°49'00" WEST, 614.99 FEET TO THE MOST WESTERLY
NORTHWEST CORNER OF LAND DESCRIBED IN DEED TO RUDOLPH WALTER
MATZ, ET AL., RECORDED SEPTEMBER 13, 1956, IN BOOK 6255, PAGE 520 OF
OFFICIAL RECORDS; THENCE ALONG THE BOUNDARY OF SAID MATZ'S LAND AS
882/012782-0020
iggig6/o1/20
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March 19, 2019 Item #3.1
Resolution No. 19-013
FOLLOWS: SOUTH 89°08'30" EAST, 733.99 FEET, AND NORTH 01 °07'00" EAST,
615.00 FEET TO THE NORTHERLY LINE OF THE SOUTHWEST QUARTER OF SAID
SECTION 13; THENCE ALONG THE NORTHERLY LINE OF SAID SOUTHWEST
QUARTER, NORTH 89°08'30" WEST TO THE POINT OF BEGINNING.
APN: 317-472-18
882/012782-0020
ig98foig6to1/20
-5-
March 19, 2019 Item #3.1
Resolution No. 19-013
Real property in the City of Poway, County of San Diego, State of California, described
as follows:
PARCEL 2 OF PARCEL MAP NO. 9105, IN THE CITY OF POWAY, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, AUGUST 30, 1979 AS INSTRUMENT NO.
79-366067 OF OFFICIAL RECORDS.
AP N : 317-472-23
882/012782-0020
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March 19, 2019 Item #3.1
Resolution No. 19-013
B. Legal Description of City -Owned Mixed Property
13100 Poway Road: The land referred to herein is situated in the State of California,
County of San Diego and is described as follows:
That portion of the Southwest Quarter of the Northwest Quarter of Section 13, Township
14 South, Range 2 West, San Bernardino Base and Meridian, in the City of Poway,
County of San Diego, State of California, according to Official Plat thereof described as
follows:
Beginning at a point on the Southerly line of said Southwest Quarter of the Northwest
Quarter, distant, thereon South 89°08'30" East 332.00 feet from the Southwest corner
thereof, said point being the Southeast corner of land conveyed to James Albert Silkwood
and wife, by deed recorded in Book 5316, Page 83 of Official Records; thence continuing
South 89°08'30" East 281.00 feet; thence parallel with the West line of said Northwest
Quarter North 01 °26'10" East 50 feet to the North line of the South 50 feet of said
Northwest Quarter being the True Point of Beginning; thence along said line South
89°08'30" East 176.48 feet to a tangent 20 foot radius curve, concave Northwesterly in
the Westerly line of Tarascan Drive as shown on Heritage Hills according to Map No. 5934
filed in the Office of the County Recorder of San Diego County; thence along the boundary
line of said Map No. 5934, Northeasterly along said curve 31.17 feet; thence tangent to
said curve North 1 °33'47" East 320.27 feet; thence North 89°08'30" West 68 feet; thence
leaving said boundary North 89°08'30" West 129 feet to a line which bears North
01 °26'10" East parallel with said West line from the True Point of Beginning; thence South
01 °26'10" West 340.02 feet to the True Point of Beginning.
APN: 317-101-06
882/012782-0020
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March 19, 2019 Item #3.1
Resolution No. 19-013
C. Legal Description of Authority -Owned Property
13021 Poway Road: Real property in the City of Poway, County of San Diego, State of
California, described as follows:
THE WEST 200.00 FEET OF THAT PORTION OF THE NORTHWEST QUARTER OF
THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF POWAY,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE UNITED
STATES GOVERNMENT SURVEY APPROVED NOVEMBER 19, 1880, DESCRIBED
AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF
SAID SECTION 13 HEREIN DESCRIBED; THENCE SOUTH 0° 49' 00" WEST, 614.99
FEET; THENCE SOUTH 89° 08' 30" EAST, 733.99 FEET TO THE SOUTHWEST
CORNER OF THAT PORTION OF PROPERTY CONVEYED TO RUDOLPH WALTER
MATZ ET AL, ON SEPTEMBER 13, 1956 IN BOOK 6255, PAGE 520 OF OFFICIAL
RECORDS; THENCE ALONG THE WESTERLY LINE OF THE PROPERTY CONVEYED
TO MATZ, NORTH 1 ° 07' 00" EAST, 615.00 FEET TO THE NORTH LINE OF SAID
SOUTHWEST QUARTER OF SECTION 13 HEREIN DESCRIBED; THENCE ALONG
THE NORTH LINE OF THE SOUTHWEST QUARTER, NORTH 89° 08' 30" WEST TO
THE POINT OF BEGINNING. EXCEPTING THEREFROM THE NORTH 50.00 FEET OF
THE WEST 200.00 FEET OF THE NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST.
AP N : 317-472-01
882/012782-0020
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March 19, 2019 Item #3.1
Resolution No. 19-013
13031 Poway Road: Real property in the City of Poway, County of San Diego, State of
California, described as follows:
PARCEL 1:
THE SOUTHERLY 100.00 FEET OF THE NORTHERLY 315.00 FEET OF THE WEST
HALF OF THE EASTERLY 266.99 FEET OF THE WESTERLY 466.99 FEET OF THAT
PORTION OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO BASE
AND MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO THE UNITED STATES GOVERNMENT SURVEY,
APPROVED NOVEMBER 19, 1880, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF
SAID SECTION 13; THENCE ALONG THE WESTERLY LINE OF SAID SOUTHWEST
QUARTER SOUTH 00° 49' 00" WEST, 614.99 FEET TO THE MOST WESTERLY
NORTHWEST CORNER OF LAND DESCRIBED IN DEED TO RUDOLPH WALTER
MATZ, ET AL, RECORDED SEPTEMBER 13, 1956, IN BOOK 6255, PAGE 520 OF
OFFICIAL RECORDS; THENCE ALONG THE BOUNDARY OF SAID MATZ'S LAND AS
FOLLOWS: SOUTH 89° 08' 30" EAST, 733.99 FEET AND NORTH 01 ° 07' 00" EAST,
615.00 FEET TO THE NORTHERLY LINE OF THE SOUTHWEST QUARTER OF SAID
SECTION 13; THENCE ALONG THE NORTHERLY LINE OF SAID SOUTHWEST
QUARTER, NORTH 89° 08' 30" WEST TO THE POINT OF BEGINNING.
PARCEL 2:
AN EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES, TO BE USED IN
COMMON WITH OTHERS OVER, UNDER, ALONG, AND ACROSS A STRIP OF LAND
60 FEET WIDE IN THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER
OF SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO
MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO UNITED STATES GOVERNMENT SURVEY APPROVED, NOVEMBER 19, 1880,
THE CENTER LINE OF SAID
60 FOOT STRIP BEING DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF PARCEL 1 ABOVE; THENCE
NORTHERLY ALONG THE EASTERLY LINE OF SAID PARCEL 1 AND THE
NORTHERLY EXTENSION OF SAID EASTERLY LINE, 265 FEET TO THE SOUTH
LINE OF THE NORTH 50 FEET OF THE SAID NORTHWEST QUARTER OF THE
SOUTHWEST QUARTER OF SECTION 13. EXCEPTING THEREFROM THAT
PORTION INCLUDED WITH PARCEL 1
ABOVE.
AP N : 317-472-06-00
882/012782-0020
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-9-
March 19, 2019 Item #3.1
Resolution No. 19-013
ATTACHMENT NO. 2A
AREA SITE MAP
ATTACHMENT 2A
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882/012782-0020
1V1902 T ;51 /01 /20
March 19, 2019 Item #3.1
Resolution No. 19-013
ATTACHMENT 2B
PROPOSED SUBDIVISION MAP
[SEE ATTACHED]
EXHIBIT 2B
PROPOSED SUBDIVISION MAP
MER,ID1 lik7/1111
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4x.
882/012782-0020
5)6/01/20
RETAIL AREA -Approx 2.3 gross acres
AFFORDABLE AREA - Approx 0.9 gross acres
RESIDENTIAL AREA - Approx 6.1 gross acres
March 19, 2019 Item #3.1
Resolution No. 19-013
ATTACHMENT NO. 3
SCOPE OF DEVELOPMENT
(Total Project Site area includes approximately 9.6 gross acres)
The Project will consist of:
• A retail land area on the Retail Parcels comprising approximately 2.2 acres that
could include approximately 25,000 square feet of retail. The Phasel Retail
Development Work shall include: (i) establishment of at least two legal lots
defining the approximately 2.2 acre Retail Parcels area; (ii) completing remedial,
rough and finish grading to an approved City plan, in accordance with compaction
standards, (iii) installing wet and dry backbone utility services to ultimately service
the future retail project, and (iv) stabilizing the Retail Parcels in accordance with
the City's storm water standards.
• A residential component that will include development of approximately 98 units of
for -sale housing. All units are contemplated to be type V non -rate wood framed.
Architectural style is "Gill / Monterrey style," subject to City approval. The units are
generally described as follows:
o Approximately 38 units of two-story attached condominiums. Unit size
generally ranges from 1400-1600 square footage. The units will be
configured 2-3 bedrooms, with approximately 2.5 baths. Each unit will have
an attached two -car garage.
o Approximately 54 units configured in three-story buildings. Product consists
of three-story attached buildings, containing two-story townhomes and flat
condominiums. Unit size generally ranges from 1700-2200 square footage.
The units will be configured 3 bed rooms/lofts with 2 to 3 baths. Each unit
will have an attached two -car garage.
o Approximately 6 units of three-story attached condominiums. Unit size
generally ranges from 1300-1800 square footage. The units will be
configured 2-3 bedrooms, 2.5 baths. Each unit will have an attached two -
car garage. This product will include a small live/work space associated with
the units along Poway Road.
Land development consists of demolition of approximately 59,000 square feet of
existing structures, grading and remediation of soils, installation of wet & dry utilities and
surface improvements.
882/012782-0020
gg98ioig6/o1/20
March 19, 2019 Item #3.1
Resolution No. 19-013
ATTACHMENT Na 4.
SCHEDULE OF PERFORMANCE
Task(Event
Time for Performance
1.
Open of Escrow
2. Developer submits tentative map application and
design review package.
Within 120 days of Escrow opening
.
After City staff approval* and within 60 days of
said approval, City Councils approval of tentative
map and design review package.
Within 150 days of submittal
.
Developer submits grading plan
Within 30 days of tentative map
and design review approval
•
City Staff approval of grading plans
Within 120 days of submittal
6.
Close of Escrow. Developer submits improvement
plans and final map.
Within 30 days of grading plan
approval
7.
Developerposts bonds for grading,pulls
p p
grading permit, and after City staff
approval* commences grading.
1 Within 30 days of Close of Escrow
Y
$•
Developer post bonds for improvement plans. City
Staff approval* of public improvement plans. City
Council approval of final map after City staff approval.
within 150 days of submittal
after City staff approval
.
Developer commences improvements and submits
residential building plans
Within 60 days of City's approval of
final map
10.
Developer completes all public improvements
required in the public improvement plans and rough
grading and for first phase of all residential and retail
04,,, ir,,L.., ,.n «,} %,%tn rL�
\Nithin 150 days of Developer start
of improvements
11.
Developer obtains building permits and commences
construction of first phase of Residential
Development, .... ......... .
Wthin 30 days after Developer's
completion of first phase site
improvements
* City staff approval is contingent upon developer addressing all staff corrections.
Developer hereby advises City that the residential units comprising the Residential
Development are expected to sell at a rate of 4.0f units per month. The pace of
construction and completion of units after the first phase of the Residential Development
will be commensurate with sales performance, bank covenants on sales, inventory,
backlog and other lending guidelines as well as general economic conditions.
882/012782-0020
13J092Z.011y3115/19
March 19, 2019 Item #3.1
Resolution No. 19-013
ATTACHMENT NO. 5
FORM OF CITY GRANT DEED
[SEE ATTACHED]
882/012782-0020
6w98ioi g6/01/20
March19, 2019 Item #3.1
cording Requested By:
tt American Title Company
HoniebuiIder Services Division
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Mail 1-610.c aferneat
Poway Commons, LLC
Attention: Guy Asaro
9988 Hibert Street, Suite 210
San Diego, CA 92131
Ore- t46*.51D311
31-7-47
DOC# 2020-0221514
1111111 1111111111111#11111111111111 11 1111111 1E
Apr 30, 2020 03:54 PM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $1,921.00 (SB2 Atkins: $0.00)
PCOR: YES
PAGES: 10
(Space above for Recorder's Use Only)
GRANT DEED
The undersigned declares: Documentary transfer tax $ Pc-0,
Computed on the consideration of the full value of property conveyed
Exempt from recorder's fee pursuant to
Government Code Section 27383
The undersigned declares exemption
under the following:
Exempt from fee per Government
Code Section 27388.1 (a)(2)(D)
For valuable consideration, the receipt of which is hereby acknowledged,
the CITY OF POWAY, a California municipal corporation (the "City"), hereby
grants to POWAY COMMONS, LLC, a Delaware limited liability company (the
"Grantee"), the real property legally described in Exhibit "A" attached hereto and
made a part hereof (the "Property"), subject to all matters of record and subject to
the following:
Grantee, on behalf of itself and its successors and assigns to all or any
portion of the Property, covenants and agrees as follows:
Section 1, Nondiscrimination Covenants. That there shall be no
discrimination against or segregation of any person, or group of persons on any
basis listed in subdivision (a) or (d) of Section 12955 of the Government Code,
as those bases are defined in Sections 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, or any part thereof, nor shall Grantee, or
any person claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants,
9565558.3
sublessees or vendees of the Property, or any part thereof. The foregoing
covenants shall run with the land.
Section 2. Nondiscrimination Clauses in Agreements. Grantee agrees
for itself and any successor in interest that Grantee shall refrain from restricting
the rental, sale, or lease of any portion of the Property, or contracts relating to
the Property, on the basis of race, color, creed, religion, sex, marital status,
ancestry, or national origin of any person. All such deeds, leases or contracts
shall contain or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of any basis listed in
subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
are defined in Sections 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
premises herein conveyed, nor shall the grantee 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 premises herein
conveyed. The foregoing covenants shall run with the land."
ii. In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through him or her, and this lease is made and accepted upon
and subject to the following conditions: "That there shall be no discrimination
against or segregation of any person or group of persons, on account of any basis
listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those
bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1)
of subdivision (p) of Section 12955, and Section 12955.2 of the Government
Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or
enjoyment of the premises herein leased nor shall the lessee himself or herself, or
any person claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy, of tenants, lessees, sublessees,
subtenants, or vendees in the premises herein leased."
iii. In contracts relating to the sale, transfer, or leasing of the
land or any interest therein: "There shall be no discrimination against or
segregation of, any person or group of persons on account of any basis listed in
subdivision (a) or (d) of Section 12955 of the Government Code, as those bases
are defined in Sections 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 premises which are the subject of this agreement, nor shall the grantee or
any person claiming under or through him or her, establish or permit any
9565558.3
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 premises herein conveyed. The foregoing
covenants shall run with the land."
The foregoing nondiscrimination covenants shall remain in effect in perpetuity.
IN WITNESS WHEREOF, the City has causecilhis Grant Deed to be executed
by its authorized representative(s) on this Aq7by of aprii
2020.
City:
CITY OF POWAY, a California municipal corporation
By:
Chris Hazel ine, City Manager
By execution below, Grantee accepts and agrees to be bound by all of the
covenants, restrictions, and obligations set forth in this Grant Deed.
Grantee:
POWAY COMMONS, LLC
A Delaware limited liability company
By:
9565558.3
Signed in Courrterpart
Guy Asaro, Manager
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 premises herein conveyed. The foregoing
covenants shall run with the land."
The foregoing nondiscrimination covenants shall remain in effect in perpetuity.
IN WITNESS WHEREOF, the City has causeAthis Grant Deed to be executed
by its authorized representative(s) on thisaq'clay of
2020.
City:
CITY OF POWAY, a California municipal corporation
By:
Signed in Counterpart
Chris Hazeltine, City Manager
By execution below, Grantee accepts and agrees to be bound by all of the
covenants, restrictions, and obligations set forth in this Grant Deed.
Grantee:
POWAY COMMONS, C
A Delawar ited •
By:
9565553.3
ility company
Guy Asaro, Manager
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 at
On Aio rt 1 4- q, c)--vc)--v , before me, agia 1411, PO4-41 Paist;6
(insert, name and title of the
ancer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person*
whose name() is/ar-e subscribed to the within instrument and acknowledged to
me that he/sheithey executed the same in his/h.edthetr 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 persons-)- 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 edia
9565558.3
4
(Seal)
CAROL S LEGG
Notary Public- California
San Diego County
Commission # 2283958
My Comm. Expires Apr 28. 2023
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 ccict4- ale50
On 8v; 7 fdtd0
Notary Public, personally appeared
, before me, Ai 01, W;1/4hcoi-,
(In.sert name and title of the
°nicer)
Askvo
who proved to me on the basis of satisfactory evidence to be the person(61
whose nxnefes)6are subscribed to the witM instrument and acknowledged to
me thatbd/sh they executed the same inMfheritheir authorized capacity(jesl,
and that by /her/their signaturecsl 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 Ari.d_KL I/UM
9565558.3
(Seal)
ANNETTE M. WILKINSON
Notary Public - California
San Diego County
Commission # 2157324
My Comm. Expires Jul 17, 2020
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
Real property in the City of Poway, County of San Diego, State of California, described
as follows:
PARCEL 1
THE WEST 200.00 FEET OF THAT PORTION OF THE NORTHWEST QUARTER OF
THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF POWAY,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE UNITED
STATES GOVERNMENT SURVEY APPROVED NOVEMBER 19, 1880, DESCRIBED
AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF
SAID SECTION 13 HEREIN DESCRIBED; THENCE SOUTH 0° 49' 00" WEST, 614.99
FEET; THENCE SOUTH 89° 08' 30" EAST, 733.99 FEET TO THE SOUTHWEST
CORNER OF THAT PORTION OF PROPERTY CONVEYED TO RUDOLPH WALTER
MATZ ET AL, ON SEPTEMBER 13, 1956 IN BOOK 6255, PAGE 520 OF OFFICIAL
RECORDS OF SAID SAN DIEGO COUNTY; THENCE ALONG THE WESTERLY LINE
OF THE PROPERTY CONVEYED TO MATZ, NORTH 1 ° 07' 00" EAST, 615.00 FEET
TO THE NORTH LINE OF SAID SOUTHWEST QUARTER OF SECTION 13 HEREIN
DESCRIBED; THENCE ALONG THE NORTH LINE OF THE SOUTHWEST
QUARTER, NORTH 89° 08' 30" WEST TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE NORTH 50.00 FEET OF THE WEST 200.00 FEET
OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION
13, TOWNSHIP 14 SOUTH, RANGE 2 WEST.
ALSO EXCEPTING THEREFROM THAT PORTION LYING SOUTHERLY
OF THE FOLLOWING DESCRIBED LINE:
COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER
OF SAID SECTION 13; THENCE ALONG THE WESTERLY LINE THEREOF SOUTH
01°16'17" WEST, (RECORD SOUTH 00°49'00" WEST), 301.85 FEET TO THE TRUE
POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH
88°39'00" EAST, 62.70 FEET; THENCE SOUTH 43°39'00" EAST, 4.87 FEET;
THENCE SOUTH 88°39'00" EAST, 400.87 FEET TO THE EASTERLY LINE OF THE
WESTERLY 466.99 FEET OF SAID NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, SAID POINT BEING THE POINT OF TERMINUS.
Page 1 of 4
PARCEL 2
9565558.3
THE SOUTHERLY 100.00 FEET OF THE NORTHERLY 315.00 FEET OF THE WEST
HALF OF THE EASTERLY 266.99 FEET OF THE WESTERLY 466.99 FEET OF THAT
PORTION OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO BASE
AND MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO THE UNITED STATES GOVERNMENT SURVEY,
APPROVED NOVEMBER 19, 1880, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF
SAID SECTION 13; THENCE ALONG THE WESTERLY LINE OF SAID SOUTHWEST
QUARTER SOUTH 00°49' 00" WEST, 614.99 FEET TO THE MOST WESTERLY
NORTHWEST CORNER OF LAND DESCRIBED IN DEED TO RUDOLPH WALTER
MATZ, ET AL, RECORDED SEPTEMBER 13, 1956, IN BOOK 6255, PAGE 520 OF
OFFICIAL RECORDS OF SAID SAN DIEGO COUNTY; THENCE ALONG THE
BOUNDARY OF SAID MATZ'S LAND AS FOLLOWS: SOUTH 89° 08' 30" EAST,
733.99 FEET AND NORTH 01 ° 07' 00" EAST, 615.00 FEET TO THE NORTHERLY
LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 13; THENCE ALONG
THE NORTHERLY LINE OF SAID SOUTHWEST QUARTER, NORTH 89° 08' 30"
WEST TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION LYING SOUTHERLY OF THE
FOLLOWING DESCRIBED LINE:
COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER
OF SAID SECTION 13; THENCE ALONG THE WESTERLY LINE THEREOF SOUTH
01 ° 16'17" WEST, (RECORD SOUTH 00°49'00" WEST), 301.85 FEET TO THE TRUE
POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH
88°39'00" EAST, 62.70 FEET; THENCE SOUTH 43°39'00" EAST, 4.87 FEET;
THENCE SOUTH 88°39'00" EAST, 400.87 FEET TO THE EASTERLY LINE OF THE
WESTERLY 466.99 FEET OF SAID NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, SAID POINT BEING THE POINT OF TERMINUS.
Page 2 of 4
9565558.3
PARCEL 3
THE SOUTHERLY 100.00 FEET OF THE NORTHERLY 315.00 FEET OF THE
EASTERLY 133.495 FEET OF THE WESTERLY 466.99 FEET OF THE NORTHWEST
QUARTER OF THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 14
SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF.
EXCEPTING THEREFROM THAT PORTION LYING SOUTHERLY OF THE
FOLLOWING DESCRIBED LINE:
COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER
OF SAID SECTION 13; THENCE ALONG THE WESTERLY LINE THEREOF SOUTH
01°16'17" WEST, (RECORD SOUTH 00°49'00" WEST), 301.85 FEET TO THE TRUE
POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH
88°39'00" EAST, 62.70 FEET; THENCE SOUTH 43°39'00" EAST, 4.87 FEET;
THENCE SOUTH 88°39'00" EAST, 400.87 FEET TO THE EASTERLY LINE OF THE
WESTERLY 466.99 FEET OF SAID NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, SAID POINT BEING THE POINT OF TERMINUS.
PARCEL 4
THAT PORTION OF PARCEL 2, IN THE CITY OF POWAY, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, AS SHOWN AT PAGE 8847 OF PARCEL MAPS,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
JUNE 21, 1979, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 2; THENCE ALONG
THE SOUTHERLY LINE OF SAID PARCEL 2 NORTH 89°08'30" WEST, 100.29 FEET;
THENCE LEAVING SAID SOUTHERLY LINE NORTH 00°51'30" EAST, 0.40 FEET;
THENCE PARALLEL WITH THE SOUTHERLY LINE OF SAID PARCEL 2, SOUTH
89°08'30" EAST, 19.80 FEET; THENCE SOUTH 88°59'58" EAST 80.49 FEET TO THE
EASTERLY LINE OF SAID PARCEL 2; THENCE ALONG SAID EASTERLY LINE
SOUTH 00°49'00" WEST, 0.20 FEET TO THE POINT OF BEGINNING.
Page 3 of 4
9565558.3
PARCEL 5
PARCEL 2, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, AS SHOWN AT PAGE 8847 OF PARCEL MAPS, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 21, 1979.
EXCEPTING THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 2; THENCE
WESTERLY ALONG THE SOUTHERLY LINE THEREOF A DISTANCE OF 100.29
FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH 0°51'30" EAST A
DISTANCE OF 0.40 FEET; THENCE SOUTH 89°08'30" EAST PARALLEL WITH
SAID SOUTH LINE A DISTANCE OF 19.80 FEET; THENCE SOUTH 88°59'58"
EAST 80.49 FEET TO THE INTERSECTION WITH THE EASTERLY LINE OF SAID
PARCEL 2; THENCE SOUTHERLY ALONG SAID EASTERLY LINE A DISTANCE
OF 0.20 FEET TO THE POINT OF BEGINNING.
Page 4 of 4
M:133451081Le al Descri tions1A05 Deed -City to Poway Commons-
Uo m m . do cx l 3 2104.9a03 15119
Resolution No, 19-013
882/012782-0020
6310914.0ig�aQ6/01/20
ATTACHMENT NO. 6
FORM OF MEMORANDUM OF AGREEMENT
[SEE ATTACHED]
March 19, 2019 Item #3.1
RIECLELEFAE ri,-UQUET-SLTED 513'n
First American Title Company
D 0 44.
7,7
virrialm REtZMED DTDCLN-1E17
City of Poway
13325 Civic Center Drive Attn: City Clerk
Poway, CA 92064
A.P.N.: 317-472-18-00 and 317-472-23-00
and 317-472-24-00 and 317-472-25-00 and
317-101-06-00
Prope.rbi Address: vacant land, Poway, CA
Memorandum of Aareement
Title of Document
1[111111, III! ii11111111111111111'1111
11
Apr 30, 2020 03:54, PM
OFFICIAL RECORDS.
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER,
FEES: $0.00 (5B2 Atkins: $0.00)
PAGES: 1-1
.f\i.,-;Div,•?. This Line for Recorder's Use.. Oni7
Fie lo.: DTR-5903772 (SK)
(x ) Recorded [concurrently] in connection with a transfer of real property subject to the imposition of
Documentary Transfer Tax per GC 27338.1 (a) (2).
) Recorded [concurrently] in connection with a transfer of real property that is residential dwelling to an owner -
occupier per GC 27388.1 (a) (2).
) Maximum fee of $225 has been reached per GC 27388.1 (a) (1).
()Not related to real property GC 27388.1 (a) (1).
()Transfer of real property subject to the imposition of Documentary Transfer Tax - GC 27388.1 (a)(2)
) Transfer of real property that is a residential dwelling to an owner -occupier - GC 27388.1 (a)(2)
) Exempt from Tee under GC.27388.1 due to being recorde-d in connection with a transaction that was subject to
documentary transfer tax which was paid on document recorded as Document No. of
Official Records
) Exempt from fee under GC 27388.1 due to the ma,,imum fees having been paid on document(s) recorded
as Document No. of Official Records
()Exempt from fee under GC 27388.1 due to it being recorded in connection with a transfer of real properb/ that
is a residential dwelling to an owner -occupier. The recorded document transferring the dwelling to the owner -
occupier was recorded as document No. of Official Records.
()Exempt from fee under GC 27338.1 for the following reasons:
THIS PAGE ADDED TO PROVIDE EXEMPTION INFORMATION FOR THE BUILDING HOMES AND 3035 ACT FEE
(58-2; AFFORDABLE HOUSING FEE) ($3.00 Additional recording fee applies)
• ••_, • Liompany
Homebuilder Services Division
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Poway
13325 Civic Center Drive
Poway, CA 92064
Attn: City Clerk
Order 14o:,51b)11S
(Space above for Recorder's Use Only)
[Recordation of this Document
is Exempt From Fees Payable to the Recorder
Under Government Code Section 27383]
CITY OF POWAY
MEMORANDUM OF AGREEMENT
(PURCHASE, SALE, AND DEVELOPMENT AGREEMENT — RETAIL PORTION)
This MEMORANDUM OF AGREEMENT (PURCHASE, SALE, AND
DEVELOPMENT AGREEMENT) ("Memorandum") is entered into as of this , day of
, 2020, by and between POWAY COMMONS, LLC, a Delaware limited
liability company (the "Developer") and the CITY OF POWAY, a California municipal
corporation (the "City").
This Memorandum is made with reference to the following:
1. Developer is the owner in fee of that certain real property located in the
City of Poway, County of San Diego, State of California, more particularly described in
the legal description attached hereto as Exhibit "A" and incorporated herein by this
reference ("Property").
2. On or about April 11, 2019, City and Developer entered into that certain tAn —
Purchase, Sale, and Development Agreement, as amended by that certain First ReroR,
Amendment to Purchase, Sale and Development Agreement dated as of August 12,
2019 and by that certain Second Amendment to Purchase, Sale and Development
Agreement dated as of December 5, 2019 (collectively, "PSDA") which provides for,
among other things, Developer to develop a development with 97 detached single
family residential units and common area improvements and amenities to serve such
units, and a retail development. Developer has assigned the residential portion of the
PSDA to its affiliate, MC Poway 97 LLC, a Delaware limited liability company ("MC
Poway 97"). MC Poway 97 and the City are executing and causing to be recorded
concurrently herewith a similar Memorandum of Agreement with respect to the property
to be acquired by MC Poway 97 under the PSDA.
3. The PSDA provides City with (i) a right of first refusal to purchase the
Properly (or certain portions thereof) if Developer desires to sell the Property, and (ii) a
right to purchase the retail portion of the Property on the occurrence of certain, specified
events, all as more fully described in the PSDA.
882/012782-0020
13092704.7 a03/13/19
9565773.2
4. The PSDA provides for City and Developer to enter into this Memorandum
and to record the same in the Official Records of San Diego County, California, to
provide notice to all persons of the existence of said PSDA, which PSDA is binding on
Developer and Developer's successors -in -interest as to the Property.
5. A copy of the PSDA is on file with the City Clerk of City and is available for
inspection and copying by interested persons as a public record of City during the
regular business hours of City.
6. This Memorandum may be executed in several counterparts, and all so
executed shall constitute one agreement binding on both parties hereto, notwithstanding
that both parties are not signatories to the original or the same counterpart.
THIS MEMORANDUM OF AGREEMENT is dated as of A-yr) ' , 20 , and
has been executed on behalf of Developer and City by and through the signatures of
their authorized representative(s) set forth below. This Memorandum of Agreement
may be executed in counterparts and when fully executed each counterpart shall be
deemed to be one original instrument.
nte rim City Clef k
0 VA. A-e6\a"), / 6-Ni\
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Siignedii Couctilei---pa1
Alan Fenstermacher, City Attorney
882/012782-0020
13092704.7 a03/13/19
9565773.2
-2-
"City"
CITY OF POWAY, a California municipal
corporation
By:
1
r
Chris Haz,-.1' , City Manager
"Developer"
POWAY COMMONS, LLC, a Delaware
limited liability company
Simed
By:
Guy Asaro, Manager
4. The PSDA provides for City and Developer to enter into this Memorandum
and to record the same in the Official Records of San Diego County, California, to
provide notice to all persons of the existence of said PSDA, which PSDA is binding on
Developer and Developer's successors -in -interest as to the Property.
5. A copy of the PSDA is on file with the City Clerk of City and is available for
inspection and copying by interested persons as a public record of City during the
regular business hours of City.
6. This Memorandum may be executed in several counterparts, and all so
executed shall constitute one agreement binding on both parties hereto, notwithstanding
that both parties are not signatories to the original or the same counterpart.
THIS MEMORANDUM OF AGREEMENT is dated as of a POI X, 2020 and
has been executed on behalf of Developer and City by and through the signatures of
their authorized representative(s) set forth below. This Memorandum of Agreement
may be executed in counterparts and when fully executed each counterpart shall be
deemed to be one original instrument.
"City"
CITY OF POWAY, a California municipal
corporation
By:
ATTEST:
A. Kay Vinson, Interim City Clerk
Sigel in Counteraat-
Chris Hazeltine, City Manager
APPROVED AS TO FORM: "Developer"
RUTAN n TUCKER, LLP
2
7=`
/ (-;11
,'
Alan Fenstermacher, City Attorney
882/012782-0020
13092704.7 a03/13/19
9565773.2
-2-
P
WAY COMMONS, LLC, a Delaware
limited liability company
By:
Sligned in Cotratetpon
Guy Asaro, Manager
4. The PSDA provides for City and Developer to enter into this Memorandum
and to record the same in the Official Records of San Diego County, California, to
provide notice to all persons of the existence of said PSDA, which PSDA is binding on
Developer and Developer's successors -in -interest as to the Property.
5. A copy of the PSDA is on file with the City Clerk of City and is available for
inspection and copying by interested persons as a public record of City during the
regular business hours of City.
6. This Memorandum may be executed in several counterparts, and all so
executed shall constitute one agreement binding on both parties hereto, notwithstanding
that both parties are not signatories to the original or the same counterpart.
THIS MEMORANDUM OF AGREEMENT is dated as of hprigi 4, 202A and
has been executed on behalf of Developer and City by and through the signatures of
their authorized representative(s) set forth below. This Memorandum of Agreement
may be executed in counterparts and when fully executed each counterpart shall be
deemed to be one original instrument.
ATTEST:
Signed in Coupa
A. Kay Vinson, Interim City Clerk
A
R
OVED AS TO FOR
N E,?-.; TUCKER, LLP
Siped in Cott
Alan Fenstermacher, City Attorney
882/012782-0020
13092704.7 a03/13/19
9565773.2
-2-
"City"
CITY OF POWAY, a California municipal
corporation
By:
Signed in COUTItaii-pal
Chris Hazeltine, City Manager
"Developer"
POWAY COMMONS, LJ
limited liability pany /
/ /
/___/
--
/ 6/
By:
anager
a Delaware
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
On A-pc,t 4-1)
before me, 24/v( P 04r4,41, Pit u ,
(insert name and title of the officdr)
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 agel-d d
(1) CAROL S LEGG p
li ,4•:...,-%---.`1,7-:,,,:,,,,
Notary Public - California li
San Diego County
,L; ..4 ,,.;-:
7 - ';-‘L--',.., Commission 1,t 2233958
My Cor-rr. Eq)ires Aor 23" 2023 1--,-_---,--------1--------- .
(Seal)
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
On
, before me,
(insert name and title of the officer)
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 (Seal)
882/012782-0020
13092704.7 a03/13/19
9565773.2
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
On
, before me,
1YJv1kJ
(insert name and title of the officer)
Ili
Notary Public, personally appeared &Ix
who proved to me on the basis of satisfact&y evidence to be the person(s) whose
name(S) as/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
that the foregoing paragraph is true and correct. '4; •-y'-';T:'-P'ANNETTE M. WILKINSON
Notary Public - California
San Diego County
WITNESS my hand and official seal. :: ,-,,.,,,,L.__44,:;
',1, \\''','-'7:5-,t\-- Commission # 2157324-
:I Mv Comm: E;:pives Jul 1 7, 2020
A:4:-,;!14 ..7—WikiliF.Ad~
Signature /‘ /1/41- 0/1 "Wit#‘.\_
(Seal)
Iifornia
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
On
, before me,
(insert name and title of the officer)
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 (Seal)
882/012782-0020
13092704.7 a03/13/19
9565773.2
Exhibit A
LEG °tL DESCRIPTION OF PROPERTY
Real property in the City of Poway County of San Diego, State of California, described
as follows:
PARCEL 1
THE WEST 200.00 FEET OF THAT PORTION OF THE NORTHWEST QUARTER OF
THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF POWAY,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE UNITED
STATES GOVERNMENT SURVEY APPROVED NOVEMBER 19, 1880, DESCRIBED
AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF
SAID SECTION 13 HEREIN DESCRIBED; THENCE SOUTH 0° 49' 00" WEST, 614.99
FEET; THENCE SOUTH 89° 08' 30" EAST, 733.99 FEET TO THE SOUTHWEST
CORNER OF THAT PORTION OF PROPERTY CONVEYED TO RUDOLPH WAL T ER
MATZ ET AL, ON SEPTEMBER 13, 1956 IN BOOK 6255, PAGE 520 OF OFFICIAL
RECORDS OF SAID SAN DIEGO COUNTY; THENCE ALONG THE WESTERLY LINE
OF THE PROPERTY CONVEYED TO MATZ, NORTH 1 ° 07' 00" EAST, 615.00 FEET
TO THE NORTH LINE OF SAID SOUTHWEST QUARTER OF SECTION 13 HEREIN
DESCRIBED; THENCE ALONG THE NORTH LINE OF THE SOUTHWEST QUARTER,
NORTH 89° 08' 30" WEST TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE NORTH 50.00 FEET OF THE WEST 200.00 FEET
OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION
13, TOWNSHIP 14 SOUTH, RANGE 2 WEST.
ALSO EXCEPTING THEREFROM THAT PORTION LYING SOUTHERLY OF THE
FOLLOWING DESCRIBED LINE:
COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER
OF SAID SECTION 13; THENCE ALONG THE WESTERLY LINE THEREOF SOUTH
01°16'17" WEST, (RECORD SOUTH 00°49'00" WEST), 301.85 FEET TO THE TRUE
POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH
88°39'00" EAST, 62.70 FEET; THENCE SOUTH 43°39'00" EAST, 4.87 FEET; THENCE
SOUTH 88°39'00" EAST, 400.87 FEET TO THE EASTERLY LINE OF THE
WESTERLY 466.99 FEET OF SAID NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, SAID POINT BEING THE POINT OF TERMINUS.
Page 1 of 4
882/012782-0020
13092704.7 a03/13/19
9565773.2
PARCEL 2
THE SOUTHERLY 100.00 FEET OF THE NORTHERLY 315.00 FEET OF THE WEST
HALF OF THE EASTERLY 266.99 FEET OF THE WESTERLY 466.99 FEET OF THAT
PORTION OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO BASE
AND MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO THE UNITED STATES GOVERNMENT SURVEY,
APPROVED NOVEMBER 19, 1880, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF
SAID SECTION 13; THENCE ALONG THE WESTERLY LINE OF SAID SOUTHWEST
QUARTER SOUTH 00°49' 00" WEST, 614.99 FEET TO THE MOST WESTERLY
NORTHWEST CORNER OF LAND DESCRIBED IN DEED TO RUDOLPH WALTER
MATZ, ET AL, RECORDED SEPTEMBER 13, 1956, IN BOOK 6255, PAGE 520 OF
OFFICIAL RECORDS OF SAID SAN DIEGO COUNTY; THENCE ALONG THE
BOUNDARY OF SAID MATZ'S LAND AS FOLLOWS: SOUTH 89° 08' 30" EAST,
733.99 FEET AND NORTH 01 ° 07' 00" EAST, 615.00 FEET TO THE NORTHERLY
LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 13; THENCE ALONG
THE NORTHERLY LINE OF SAID SOUTHWEST QUARTER, NORTH 89° 08' 30"
WEST TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION LYING SOUTHERLY OF THE
FOLLOWING DESCRIBED LINE:
COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER
OF SAID SECTION 13; THENCE ALONG THE WESTERLY LINE THEREOF SOUTH
01°16'17" WEST, (RECORD SOUTH 00°49'00" WEST), 301.85 FEET TO THE TRUE
POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH
88°39'00" EAST, 62.70 FEET; THENCE SOUTH 43°39'00" EAST, 4.87 FEET; THENCE
SOUTH 88°39'00" EAST, 400.87 FEET TO THE EASTERLY LINE OF THE
WESTERLY 466.99 FEET OF SAID NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, SAID POINT BEING THE POINT OF TERMINUS.
882/012782-0020
13092704.7 a03/13/19
9565773.2
Page2of4
-3-
PARCEL 3
THE SOUTHERLY 100.00 FEET OF THE NORTHERLY 315.00 FEET OF THE
EASTERLY 133.495 FEET OF THE WESTERLY 466.99 FEET OF THE NORTHWEST
QUARTER OF THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 14
SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF.
EXCEPTING THEREFROM THAT PORTION LYING SOUTHERLY OF THE
FOLLOWING DESCRIBED LINE:
COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER
OF SAID SECTION 13; THENCE ALONG THE WESTERLY LINE THEREOF SOUTH
01°16'17" WEST, (RECORD SOUTH 00°49'00" WEST), 301.85 FEET TO THE TRUE
POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH
88°39'00" EAST, 62.70 FEET; THENCE SOUTH 43°39'00" EAST, 4.87 FEET; THENCE
SOUTH 88°39'00" EAST, 400.87 FEET TO THE EASTERLY LINE OF THE
WESTERLY 466.99 FEET OF SAID NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, SAID POINT BEING THE POINT OF TERMINUS.
PARCEL 4
THAT PORTION OF PARCEL 2, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, AS SHOWN AT PAGE 8847 OF PARCEL MAPS, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 21,
1979, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 2; THENCE ALONG
THE SOUTHERLY LINE OF SAID PARCEL 2 NORTH 89°08'30" WEST, 100.29 FEET;
THENCE LEAVING SAID SOUTHERLY LINE NORTH 00°51'30" EAST, 0.40 FEET;
THENCE PARALLEL WITH THE SOUTHERLY LINE OF SAID PARCEL 2, SOUTH
89°08'30" EAST, 19.80 FEET; THENCE SOUTH 88°59'58" EAST 80.49 FEET TO THE
EASTERLY LINE OF SAID PARCEL 2; THENCE ALONG SAID EASTERLY LINE
SOUTH 00°49'00" WEST, 0.20 FEET TO THE POINT OF BEGINNING.
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Page 3 of 4
-4-
PARCEL 5
PARCEL 2, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, AS SHOWN AT PAGE 8847 OF PARCEL MAPS, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 21, 1979.
EXCEPTING THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 2; THENCE
WESTERLY ALONG THE SOUTHERLY LINE THEREOF A DISTANCE OF 100.29
FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH 0°51'30" EAST A
DISTANCE OF 0.40 FEET; THENCE SOUTH 89°08'30" EAST PARALLEL WITH SAID
SOUTH LINE A DISTANCE OF 19.80 FEET; THENCE SOUTH 88°59'58" EAST 80.49
FEET TO THE INTERSECTION WITH THE EASTERLY LINE OF SAID PARCEL 2;
THENCE SOUTHERLY ALONG SAID EASTERLY LINE A DISTANCE OF 0.20 FEET
TO THE POINT OF BEGINNING.
Page 4 of 4
lid:\3345\08\Legal Descriptions\A05 Deed -City to Poway Commons-Comm.docx13092704.9a03/15/19
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Resolution No. 19-013
ATTACHMENT NO. 7
CITY NOTE
[SEE ATTACHED]
882/012782-0020
6t)96i0i
LS 6/01/20
March 19, 2019 Item #3.1
PROMISSORY NOTE SECURED BY DEED OF TRUST
$1,700,000 Poway, California
, 2020 (the "Note Date")
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the
CITY OF POWAY, a California municipal corporation ("Holder"), at 13325 Civic Center
Drive, Poway, CA 92064, or at such other address as Holder may direct from time to
time in writing, One Million Seven Hundred Thousand Dollars ($1,700,000) (the "Note
Amount"), together with interest thereon as hereafter set forth. All sums hereunder
shall be payable in lawful money of the United States of America. This Promissory Note
Secured by Deed of Trust (the "Promissory Note" or "Note") is secured by a Deed of
Trust with Assignment of Rents and Rider to Deed of Trust Attached Hereto of even
date herewith, executed by Maker as Trustor in favor of Holder as Beneficiary (the
"Deed of Trust").
1. Purchase, Sale, and Development Agreement. This Promissory Note is
made and delivered pursuant to and in implementation of that certain Purchase, Sale,
and Development Agreement entered into between Holder and Maker on or about April
11, 2019, as amended by that certain First Amendment to Purchase, Sale and
Development Agreement dated as of August 12, 2019 and by that certain Second
Amendment to Purchase, Sale and Development Agreement dated as of December 5,
2019 (collectively, the "Agreement"), a copy of which is on file as a public record with
Holder and is incorporated herein by reference. Pursuant to the terms of the
Agreement, Holder sold to Maker certain real property located at in the City of Poway,
County of San Diego, State of California (the "Property"), for a purchase price of Six
Million Four Hundred Twenty Thousand Five Hundred Dollars ($6,420,500).(the
"Purchase Price"). At the close of the escrow under the Agreement, Maker paid to
Holder a portion of the Purchase Price, in the amount of Four Million Seven Hundred
Twenty Thousand Five Hundred Dollars ($4,720,500), in cash. Holder agreed to loan to
Maker the balance of the Purchase Price, which is the Note Amount.
2. Interest. Interest on the Note Amount shall accrue at the "Applicable
Rate", which shall be the sum of (i) the rate published by the United States Department
of the Treasury, as the interest rate for its Five -Year Treasury Bill, plus (ii) two and one -
quarter percent (2.25%), compounded monthly. With respect to repayment of the Note
Amount, the Applicable Rate shall be determined on the date that is fourteen (14) days
prior to the date such repayment is due.
3. Time and Amount of Payment. The Note Amount, and all accrued
interest thereon, shall be paid on the fourth (4th) anniversary of the Note Date.
4. Default Rate. Any amounts (including but not limited to amounts of
principal and interest on the Note Amount) which Maker does not pay when otherwise
due under the terms of this Note, shall bear interest at the rate of the lesser of ten
percent (10%) or the maximum rate allowed per law per annum ("Default Rate"), simple
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interest, from the date which is ten (10) days after such amount would otherwise be due
until the date paid.
5. Events of Acceleration. The entire outstanding principal balance of this
Note, together with any outstanding interest and other amounts payable hereunder,
shall, at the election of Holder and upon notice to Maker thereof, become immediately
due and payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by Maker, if:
a. Notwithstanding the payment terms set forth in Section 3 above,
upon the occurrence of any "Event of Default" as set forth in Section 10 below; or
b. Maker effects an assignment of this Note and/or sells or transfers
any or all of its interests in the Property in violation of the terms and conditions of the
Agreement.
6. Security for Note. This Promissory Note is secured by the Deed of Trust.
7. Prepayment of Note. Maker may prepay all or any portion of the
outstanding principal or interest due under this Note to Holder without penalty.
8. Holder May Assign. Holder may, at its option and without obtaining the
consent of Maker, assign its right to receive payment under this Promissory Note.
9. Maker Assignment. In no event shall Maker assign or transfer any
portion of the Property or this Promissory Note except in compliance with the terms and
conditions of the Agreement. Any assignment prohibited by this Section 9 shall be null
and void.
10. Events of Default. The occurrence of any of the following shall, after the
giving of any notice and expiration of any applicable cure period as described herein,
constitute an event of default by Maker hereunder ("Event of Default"):
a. The failure of Maker to pay or perform any monetary covenant or
obligation under the terms of this Note without curing such failure within ten (10) days
after receipt of written notice of such default from Holder (or from any party authorized
by Holder to deliver such notice as identified by Holder in writing to Maker);
b. The failure of Maker to perform any non -monetary covenant or
obligation under this Note or the Deed of Trust without curing such failure within thirty
(30) days after receipt of written notice of such default from Holder (or from any party
authorized by Holder to deliver such notice as identified by Holder in writing to Maker)
specifying the nature of the event or deficiency giving rise to the default and the action
required to cure such deficiency. Provided, however, that if any default with respect to a
non -monetary obligation is such that it cannot be cured within a thirty (30) day period, it
shall be deemed cured if Maker commences the cure within said thirty (30) day period
and diligently prosecutes such cure to completion thereafter. Notwithstanding anything
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-2-
herein to the contrary, the herein described notice requirements and cure periods shall
not apply to any Event of Default described in Sections 10(c) or 10(d) below;
c. Maker shall (i) apply for or consent to the appointment of a receiver,
trustee, liquidator or custodian or the like of its property, (ii) fail to pay or admit in writing
its inability to pay its debts generally as they become due, (iii) make a general
assignment for the benefit of creditors, (iv) be adjudicated bankrupt or insolvent or
(v) commence a voluntary petition that is not withdrawn within ten (10) days of the filing
thereof or answer seeking an arrangement with creditors or an order for relief or seeking
to take advantage of any insolvency law or file an answer admitting the material
allegations of a petition filed against it in any bankruptcy or insolvency proceeding;
d. If without the application, approval or consent of Holder, a
proceeding shall be instituted in any court of competent jurisdiction, under any law
relating to bankruptcy, in respect of Holder, for an order for relief or an adjudication in
bankruptcy, a composition or arrangement with creditors, a readjustment of debts, the
appointment of a trustee, receiver, liquidator or custodian or the like of Holder or of all or
any substantial part of Holder's assets, or other like relief in respect thereof under any
bankruptcy or insolvency law, and, if such proceeding is being contested by Holder, in
good faith, the same shall (i) result in the entry of an order for relief or any such
adjudication or appointment, or (ii) continue undismissed, or pending and unstayed, for
any period of ninety (90) consecutive days; or
e. Maker shall be in default under any of the terms of any loan
obtained by Maker that is secured by the Property, unless the default is cured within the
cure period, if any, applicable thereto under the terms and obligation which is in default.
f. Maker shall be in default under any of the terms of the Agreement,
unless the default is cured within the cure period, if any, applicable thereto under the
Agreement.
11. Holder Remedies. Upon the occurrence and during the continuance of
an Event of Default hereunder, Holder may, in its sole discretion, take any one or more
of the following actions:
a. Declare the entire then unpaid outstanding balance due under this
Note immediately due and payable, and the same shall become due and payable
without further demand, protest or further notice of any kind, all of which are expressly
waived. Upon such declaration, outstanding principal and (to the extent permitted by
law) interest and any other sums outstanding in connection with this Note shall
thereafter bear interest at the Default Rate, payable from the date of such declaration
until paid in full;
b. Take any and all actions and do any and all things which are
allowed, permitted or provided by law, in equity or by statute, in the sole discretion of
Holder, to collect the amounts then due and thereafter to become due hereunder, to
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-3-
exercise its rights under the Deed of Trust, and to enforce performance and observance
of any obligation, agreement or covenant of Maker under this Note;
No remedy herein conferred upon or reserved to Holder is intended to be
exclusive of any other available remedy or remedies, but each such remedy shall be
cumulative and shall be in addition to every other remedy given under this Note or now
existing at law or in equity or by statute; and may be exercised in such number, at such
times and in such order as Holder may determine in its sole discretion. No delay or
omission to exercise any right or power upon the occurrence of any Event of Default
hereunder shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time and as often
as may be deemed expedient by Holder. In order to entitle Holder to exercise any right
or remedy reserved to it under this Note, no notice shall be required except as expressly
provided herein.
12. Agreement to Pay Attorneys' Fees and Expenses. In the event that
Holder brings any action or files any proceeding in connection with the enforcement of
its rights under this Note or the Deed of Trust, as a consequence of any breach by
Maker of its obligations hereunder or thereunder, the prevailing party in such action or
proceeding shall be entitled to have its reasonable attorneys' fees and out-of-pocket
expenditures paid by the losing party. The attorneys' fees so recovered shall include
fees for prosecuting or defending any appeal and shall be awarded for any
supplemental proceedings until the final judgment is satisfied in full. In addition to the
foregoing award of attorneys' fees, the prevailing party in any lawsuit on this Note or the
Deed of Trust shall also be entitled to its reasonable attorneys' fees incurred in any post
judgment proceedings to collect or enforce the judgment. In addition to the foregoing,
Maker agrees to pay or reimburse Holder, upon demand by Holder, for all costs incurred
by Holder in connection with enforcement of this Note or the Deed of Trust, including
without limitation, reasonable attorneys' fees and costs, if there shall be filed by or
against Maker any proceedings under any federal or state bankruptcy or insolvency
laws, whether Holder is a creditor in such proceedings or otherwise.
13. Amendments. This Note may not be modified or amended except by an
instrument in writing expressing such intention executed by the parties sought to be
bound thereby, which writing must be so firmly attached to this Note so as to become a
permanent part thereof.
14. Maker's Waivers. Maker waives any rights to require the Holder to:
(a) demand payment of amounts due (known as "presentment"), (b) give notice that
amounts due have not been paid (known as "notice of dishonor"), and (c) obtain an
official certification of nonpayment (known as "protest").
15. Notice. Any notice that must be given to Maker under this Note shall be
in writing and shall be effective when personally delivered or delivered by reputable
overnight courier that provides a receipt with the date and time of delivery, or forty-eight
(48) hours after deposit in the United States Mail, as certified or registered mail, return
receipt requested, first-class postage and fees prepaid, addressed to Maker at: City of
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-4-
Poway, 13325 Civic Center Drive, Poway, CA 92064, Attn: City Treasurer, or such
other address as Maker shall direct from time to time in writing, and to Holder at
Holder's address stated in the preamble to this Note. Failure or delay in giving any
notice required hereunder shall not constitute a waiver of any default or late payment,
nor shall it change the time for any default or payment.
16. Successors Bound. This Promissory Note shall be binding upon the
parties hereto and their respective heirs, successors and assigns.
17. Severability. The invalidity or unenforceability of any one or more
provisions of this Note will in no way affect any other provisions.
18. Interpretation. Whenever the context requires, all words used in the
singular will be construed to have been used in the plural, and vice versa, and each
gender will include any other gender. The captions of the paragraphs of this Note are
for convenience only and do not define or limit any terms or provisions. Time is of the
essence in the performance of this Note by Maker. Maker has been represented by
counsel in the negotiation of this Note, and it shall not be interpreted in favor of or
against any party on account of relative responsibilities in drafting. Notwithstanding any
other provision of this Note, nothing in this Section 18 or elsewhere in this Note shall be
deemed to require Maker to pay interest in an amount in excess of any applicable usury
law or other legal limitation on interest, and the terms of this Note shall be interpreted to
require in each instance the lesser of (a) the amount stated in this Note, and (b) the
maximum applicable legal limit.
19. No Waiver; Consents. Any waiver by Holder must be in writing and will
not be construed as a continuing waiver. No waiver will be implied from any delay or
failure by Holder to take action on account of any default of Maker. Consent by Holder
to any act or omission by Maker will not be construed to be a consent to any other or
subsequent act or omission or to waive the requirements for Holder's consent to be
obtained in any future or other instance.
20. Governing Law. This Note shall be governed by the internal laws of the
State of California without regard to conflict of law principles.
[End —Signature Page Follows]
882/012782-0020
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IN WITNESS WHEREOF, Maker has executed this Promissory Note.
"Maker"
POWAY COMMONS, LLC, a Delaware
limited liability company
By:
Guy anager
882/012782-0020
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-6-
Dated: /3rt./ Z �- � Z7Zo
Resolution No. 19-013
ATTACHMENT NO. 8
CITY DEED OF TRUST
[SEE ATTACHED]
882/012782-0020
i
iii27aiii/01/20
March 19, 2019 Item #3.1
10
RECORDING REQUESTED BY:
First American Title Company
WHEN RECORDED MAIL DOCUMENT TO:
City of Poway
13325 Civic Center Drive Attn: City Clerk
Poway, CA 92064
Property Address: vacant land, Poway, CA
DOC# 2O2OO221516
IIIIIIIIIIIIIIIIIilllllllllllllllll IIIIIIII IIIIIIIIIIIIIillllIII
Apr 30, 2020 03:54 PM
OFFICIAL RECORDS
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $0.00 (SB2 Atkins: $0.00)
PCOR: N/A
PAGES: 14
Space Above This Line for Recorder's Use Only
File No.: DTR-5903778 (SK)
Deed of Trust with Assignment of Rents
Title of Document
(x ) Recorded [concurrently] in connection with a transfer of real property subject to the imposition of
Documentary Transfer Tax per GC 27388.1 (a) (2).
()Recorded [concurrently] in connection with a transfer of real property that is residential dwelling to an owner -
occupier per GC 27388.1 (a) (2).
()Maximum fee of $225 has been reached per GC 27388.1 (a) (1).
()Not related to real property GC 27388.1 (a) (1).
()Transfer of real property subject to the imposition of Documentary Transfer Tax - GC 27388.1 (a)(2)
()Transfer of real property that is a residential dwelling to an owner -occupier - GC 27388.1 (a)(2)
()Exempt from fee under GC 27388.1 due to being recorded in connection with a transaction that was subject to
documentary transfer tax which was paid on document recorded as Document No. of
Official Records
() Exempt from fee under GC 27388.1 due to the maximum fees having been paid on document(s) recorded
as Document No. of Official Records
()Exempt from fee under GC 27388.1 due to it being recorded in connection with a transfer of real property that
is a residential dwelling to an owner -occupier. The recorded document transferring the dwelling to the owner -
occupier was recorded as document No. of Official Records.
() Exempt from fee under GC 27388.1 for the following reasons:
THIS PAGE ADDED TO PROVIDE EXEMPTION INFORMATION FOR THE BUILDING HOMES AND JOBS ACT FEE
(S6-2; AFFORDABLE HOUSING FEE) ($3.00 Additional recording fee applies)
First American Title Company
Flomebuilder Services Division
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Poway
13325 Civic Center Drive
Poway, California 92064
Attn: City Clerk
' ,r tea` 1• G' I�
(Space Above This Line For Recorder's Use)
(Exempt From Recording Fees Pursuant To Government Code Section 27383)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
AND RIDER ATTACHED HERETO
NOTE: RIDER ATTACHED TO THIS DEED OF TRUST CONTAINING TERMS
INCLUDING SECURITY AGREEMENT AND FIXTURE FILING.
This DEED OF TRUST WITH ASSIGNMENT OF RENTS AND RIDER ATTACHED
HERETO ("Deed of Trust"), is made ,"\ p� } 2.1 , 2020, between
POWAY COMMONS, LLC, a Delaware J limited liability company, herein called
TRUSTOR, whose address is 9988 Hibert Street, Suite 210, San Diego, CA 92131,
FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein
called TRUSTEE, and CITY OF POWAY, a California municipal corporation, herein
called BENEFICIARY.
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, Trustor's
estate, dated on or about the date hereof, in that property in the City of Poway, County
of San Diego, State of California, described in Exhibit "A" (the "Property"),
together with the rents, issues and profits thereof, subject, however, to the right, power
and authority hereinafter given to and conferred upon Beneficiary to collect and apply
such rents, issues and profits for the purpose of securing (1) payment of the sum of
ONE MILLION SEVEN HUNDRED THOUSAND DOLLARS ($1,700,000), with interest
thereon according to the terms of a promissory note or notes of even date herewith
made by Trustor, payable to order of Beneficiary, and extensions or renewals thereof;
(2) the performance of each agreement of Trustor incorporated by reference or
contained herein; and (3) payment of additional sums and interest thereon which may
hereafter be loaned to Trustor, or its successors or assigns, when evidenced by a
promissory note or notes reciting that they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the Property above
described, Trustor expressly makes each and all of the agreements, and adopts and
agrees to perform and be bound by each and all of the terms and provisions set forth in
subdivision A, and it is mutually agreed that each and all of the terms and provisions set
forth in subdivision B of the fictitious deed of trust recorded in Orange County
August 17, 1964, and in all other counties August 18, 1964, in the book and at the page
882/012782-0020
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9565740.2
of Official Records in the office of the county recorder of the county where said property
is located, noted below opposite the name of such county, namely:
COUNTY
Alameda
Alpine
Amador
Butte
Calaveras
Colusa
Contra Costa
Del Norte
El Dorado
Fresno
Glenn
Humboldt
Imperial
lnyo
Kern
BOOK
1288
3
133
1330
185
323
4684
101
704
5052
469
801
1189
165
3756
PAGE
556
130-31
438
513
338
391.
1
549
635
623
76
83
701
672
690
COUNTY
Kings
Lake
Lassen
Los Angeles
Madera
Marin
Mariposa
Mendocino
Merced
Modoc
Mono
Monterey
Napa
Nevada
Orange
BOOK
858
437
192
T-3878
911
1849
90
667
1660
191
69
357
704
363
7182
PAGE
713
110
367
874
136
122
453
99
753
93
302
239
742
94
18
COUNTY BOOK PAGE COUNTY
Placer 1028 379 Sierra
Plumas 166 1307 Siskiyou
Riverside 3778 347 Solano
Sacramento 5039 124 Sonoma
San Benito 300 405 Stanislaus
San Bernardino 6213 768 Sutter
San Francisco A-804 596 Tehama
San Joaquin 2855 283 Trinity
San Luis Obispo 1311 137 Tulare
San Mateo 4778 175 Tuolumne
Santa Barbara 2065 881 Ventura
Santa Clara 6626 664 Yolo
Santa Cruz 1638 607 Yuba
Shasta 800 633
San Diego SERIES 5 Book 1964, Page 149774
BOOK
38
506
1287
2067
1970
655
457
108
2530
177
2607
769
398
PAGE
187
762
621
427
56
585
183
595
108
160
237
16
693
shall inure to and bind the parties hereto, with respect to the property above described.
Said agreements, terms and provisions contained in said subdivisions A and B (identical
in all counties, and printed on pages 3 and 4 hereof) are by the within reference thereto,
incorporated herein and made a part of this Deed of Trust for all purposes as fully as if
set forth at length herein, and Beneficiary may charge for a statement regarding the
obligation secured hereby, provided the charge therefor does not exceed the maximum
allowed by law.
The undersigned Trustor, requests that a copy of any notice of default and any notice of
sale hereunder be mailed to him at his address hereinbefore set forth.
SEE RIDERS ATTACHED TO THIS DEED OF TRUST
By: POWAY COMM f ' S, LLC,
a Dela limi d liabilitycompany
p Y
By:
Guy"s.:ro anager
882/012782-0020
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9565740.2
-2-
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
On
, before me, r r . , a� ,
NotaryPublic, personally appeared , if,, ., a/,f- .a
who proved to me on the basis of satisfactoryJevidence to be the personsrwhose
name(s) ,-is'/are subscribed to the within instrument and acknowledged to me that
heshe/the executed the same in his/her/their authorized ca acifi ies) , and that
Y p YC, � by
;his/her/their si nature s� -on the instrument the erson s , or the entityupon behalf of
r g C.,;) p C) p
which the person(s)'acted, executed the instrument.
•
(insert name and title of the officer)
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
882/012782-0020
13092704.7 a03/13/19
9565740.2
ANNETTE M. WILKINSON
Notary Public - California
San Diego County
Commission 4 2157324
My Comm. Expires Jul 17, 2020
(Seal
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each county in California as stated in the foregoing
Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein.
A. To protect the security of this Deed of Trust, Trustor agrees:
1) To keep said property in good condition and repair, not to remove or demolish any building thereon; to complete or restore
promptly and in a good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all
claims for labor performed and materials furnished therefor, to comply with all laws affecting said property or requiring any alterations or
improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation
of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably
necessary, the specific enumerations herein not excluding the general.
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The
amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order
as Beneficiary may determine, or at the option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any such
action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed.
4) To pay: at least ten (10) days before delinquency all taxes and assessments affecting said property, including assessments
on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be
prior or superior hereto; all costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without obligation so to
do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may: make or do the same in such
manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said
property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior
or superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his or her reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with interest from the date of
expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof
regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when
said statement is demanded.
B. It is mutually agreed:
1) That any award in connection with any condemnation for public use of or injury to said property or any part thereof is
hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with the same
effect as above provided for disposition of proceeds of fire or other insurance.
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive its right either to
require prompt payment when due of all other sums so secured or to declare default for failure so to pay.
3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and
presentation of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the
indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting
any easement thereon, or join in any extension agreement or any agreement subordinating the lien or charge hereof.
4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this
Deed and said note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of
its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts
shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as "the person or persons legally
entitled thereto".
5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the
continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by
Trustor in payment of any indebtedness secured hereby or in the performance of any agreement hereunder, to collect and retain such rents, issues
and profits as they become due and payable. Upon any such default (beyond any applicable cure period, and during the continuance of such
default), Beneficiary may at any time without notice, either in person, by agent, or be a receiver to be appointed by a court, and without regard to
the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in its own
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name sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses
of operation and collection, including reasonable attomey's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may
determine. The entering upon and taking possession of said property, the collecting of such rents, issues and profits and the application thereof as
aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice.
6) That upon default by Trustor in payment of any indebtedness secured hereby or in the performance of any agreement
hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default
and demand for sale and of written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed
for record. Beneficiary also shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale
having been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said
notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in
lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public
announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed
by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or
warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person,
including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale,
Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the
amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally
entitled thereto.
7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in
writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and
duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated shall be conclusive proof of
proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title,
estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and
page where this Deed is recorded and the name and address of the new Trustee.
8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators,
executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby,
whether or not named as Beneficiary herein. In this Deed, whenever the context so requires, the masculine gender includes the feminine and/or
neuter, and the singular number includes the plural.
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which
Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO , TRUSTEE:
The undersigned is the legal owner and holder of the note or notes and of all indebtedness secured by the foregoing Deed of Trust.
Said note or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby
requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel said note or notes above
mentioned, an all other evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust,
and to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same.
Dated
Please mail Deed of Trust,
Note and Reconveyan_ce to
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for cancellation before
reconveyance will be made.
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-2-
Exhibit A
LEGAL DESCRIPTION OF PROPERTY
Real property in the City of Poway County of San Diego, State of California, described
as follows:
PARCEL 1
THE WEST 200.00 FEET OF THAT PORTION OF THE NORTHWEST QUARTER OF
THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2
WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE CITY OF POWAY,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE UNITED
STATES GOVERNMENT SURVEY APPROVED NOVEMBER 19, 1880, DESCRIBED
AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF
SAID SECTION 13 HEREIN DESCRIBED; THENCE SOUTH 0° 49' 00" WEST, 614.99
FEET; THENCE SOUTH 89° 08' 30" EAST, 733.99 FEET TO THE SOUTHWEST
CORNER OF THAT PORTION OF PROPERTY CONVEYED TO RUDOLPH WALTER
MATZ ET AL, ON SEPTEMBER 13, 1956 IN BOOK 6255, PAGE 520 OF OFFICIAL
RECORDS OF SAID SAN DIEGO COUNTY; THENCE ALONG THE WESTERLY LINE
OF THE PROPERTY CONVEYED TO MATZ, NORTH 1 ° 07' 00" EAST, 615.00 FEET
TO THE NORTH LINE OF SAID SOUTHWEST QUARTER OF SECTION 13 HEREIN
DESCRIBED; THENCE ALONG THE NORTH LINE OF THE SOUTHWEST QUARTER,
NORTH 89° 08' 30" WEST TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THE NORTH 50.00 FEET OF THE WEST 200.00 FEET
OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION
13, TOWNSHIP 14 SOUTH, RANGE 2 WEST.
ALSO EXCEPTING THEREFROM THAT PORTION LYING SOUTHERLY OF THE
FOLLOWING DESCRIBED LINE:
COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER
OF SAID SECTION 13; THENCE ALONG THE WESTERLY LINE THEREOF SOUTH
01°16'17" WEST, (RECORD SOUTH 00°49'00" WEST), 301.85 FEET TO THE TRUE
POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH
88°39'00" EAST, 62.70 FEET; THENCE SOUTH 43°39'00" EAST, 4.87 FEET; THENCE
SOUTH 88°39'00" EAST, 400.87 FEET TO THE EASTERLY LINE OF THE
WESTERLY 466.99 FEET OF SAID NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, SAID POINT BEING THE POINT OF TERMINUS.
Page 1 of 4
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PARCEL 2
THE SOUTHERLY 100.00 FEET OF THE NORTHERLY 315.00 FEET OF THE WEST
HALF OF THE EASTERLY 266.99 FEET OF THE WESTERLY 466.99 FEET OF THAT
PORTION OF THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 13, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO BASE
AND MERIDIAN, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO THE UNITED STATES GOVERNMENT SURVEY,
APPROVED NOVEMBER 19, 1880, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER OF
SAID SECTION 13; THENCE ALONG THE WESTERLY LINE OF SAID SOUTHWEST
QUARTER SOUTH 00°49' 00" WEST, 614.99 FEET TO THE MOST WESTERLY
NORTHWEST CORNER OF LAND DESCRIBED IN DEED TO RUDOLPH WALTER
MATZ, ET AL, RECORDED SEPTEMBER 13, 1956, IN BOOK 6255, PAGE 520 OF
OFFICIAL RECORDS OF SAID SAN DIEGO COUNTY; THENCE ALONG THE
BOUNDARY OF SAID MATZ'S LAND AS FOLLOWS: SOUTH 89° 08' 30" EAST,
733.99 FEET AND NORTH 01 ° 07' 00" EAST, 615.00 FEET TO THE NORTHERLY
LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 13; THENCE ALONG
THE NORTHERLY LINE OF SAID SOUTHWEST QUARTER, NORTH 89° 08' 30"
WEST TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION LYING SOUTHERLY OF THE
FOLLOWING DESCRIBED LINE:
COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER
OF SAID SECTION 13; THENCE ALONG THE WESTERLY LINE THEREOF SOUTH
01°16'17" WEST, (RECORD SOUTH 00°49'00" WEST), 301.85 FEET TO THE TRUE
POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH
88°39'00" EAST, 62.70 FEET; THENCE SOUTH 43°39'00" EAST, 4.87 FEET; THENCE
SOUTH 88°39'00" EAST, 400.87 FEET TO THE EASTERLY LINE OF THE
WESTERLY 466.99 FEET OF SAID NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, SAID POINT BEING THE POINT OF TERMINUS.
Page 2 of 4
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PARCEL 3
THE SOUTHERLY 100.00 FEET OF THE NORTHERLY 315.00 FEET OF THE
EASTERLY 133.495 FEET OF THE WESTERLY 466.99 FEET OF THE NORTHWEST
QUARTER OF THE SOUTHWEST QUARTER OF SECTION 13, TOWNSHIP 14
SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF.
EXCEPTING THEREFROM THAT PORTION LYING SOUTHERLY OF THE
FOLLOWING DESCRIBED LINE:
COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHWEST QUARTER
OF SAID SECTION 13; THENCE ALONG THE WESTERLY LINE THEREOF SOUTH
01°16'17" WEST, (RECORD SOUTH 00°49'00" WEST), 301.85 FEET TO THE TRUE
POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE SOUTH
88°39'00" EAST, 62.70 FEET; THENCE SOUTH 43°39'00" EAST, 4.87 FEET; THENCE
SOUTH 88°39'00" EAST, 400.87 FEET TO THE EASTERLY LINE OF THE
WESTERLY 466.99 FEET OF SAID NORTHWEST QUARTER OF THE SOUTHWEST
QUARTER OF SECTION 13, SAID POINT BEING THE POINT OF TERMINUS.
PARCEL 4
THAT PORTION OF PARCEL 2, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO,
STATE OF CALIFORNIA, AS SHOWN AT PAGE 8847 OF PARCEL MAPS, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 21,
1979, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 2; THENCE ALONG
THE SOUTHERLY LINE OF SAID PARCEL 2 NORTH 89°08'30" WEST, 100.29 FEET;
THENCE LEAVING SAID SOUTHERLY LINE NORTH 00°51'30" EAST, 0.40 FEET;
THENCE PARALLEL WITH THE SOUTHERLY LINE OF SAID PARCEL 2, SOUTH
89°08'30" EAST, 19.80 FEET; THENCE SOUTH 88°59'58" EAST 80.49 FEET TO THE
EASTERLY LINE OF SAID PARCEL 2; THENCE ALONG SAID EASTERLY LINE
SOUTH 00°49'00" WEST, 0.20 FEET TO THE POINT OF BEGINNING.
Page 3 of 4
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PARCEL 5
PARCEL 2, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, AS SHOWN AT PAGE 8847 OF PARCEL MAPS, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JUNE 21, 1979.
EXCEPTING THAT PORTION DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 2; THENCE
WESTERLY ALONG THE SOUTHERLY LINE THEREOF A DISTANCE OF 100.29
FEET; THENCE LEAVING SAID SOUTHERLY LINE NORTH 0°51'30" EAST A
DISTANCE OF 0.40 FEET; THENCE SOUTH 89°08'30" EAST PARALLEL WITH SAID
SOUTH LINE A DISTANCE OF 19.80 FEET; THENCE SOUTH 88°59'58" EAST 80.49
FEET TO THE INTERSECTION WITH THE EASTERLY LINE OF SAID PARCEL 2;
THENCE SOUTHERLY ALONG SAID EASTERLY LINE A DISTANCE OF 0.20 FEET
TO THE POINT OF BEGINNING.
Page 4 of 4
M:\3345\08\Legal Descriptions\A05 Deed -City to Poway Commons-Comm.docx13092704.9a03/15/19
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RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS
This RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS ("Rider") is
executed this :(-1:2 4 day of ,,—%. r .;/ 2020, by
POWAY COMMONS, LLC, a Delaware limited liability company, herein "Trustor," in
favor of the CITY OF POWAY, a California municipal corporation, herein "Beneficiary,"
the same parties to that certain form Deed of Trust With Assignment of Rents, of even
date hereto, to which this Rider is attached. This Rider is made a part of and is
incorporated into said Deed of Trust. This Rider shall supersede any conflicting term or
provision of the form Deed of Trust to which it is attached.
Reference is made to that certain Promissory Note executed by Trustor on or
about the date set forth above, the repayment of which by Trustor is secured by this
Deed of Trust ("City Note")
The parties hereto agree:
1. Property. The estate subject to this Deed of Trust is Trustor's fee estate in
the real property legally described in the foregoing Deed of Trust to which this Rider is
attached (the "Property").
2. Obligations Secured. Trustor makes this grant and assignment for the
purpose of securing the following obligations ("Secured Obligations"):
a. Payment to Beneficiary of all indebtedness at any time owing under
the terms of the City Note;
b. Payment and performance of all obligations of Trustor under this
Deed of Trust;
c. All modifications, extensions and renewals of any of the obligations
secured hereby, however evidenced.
3. Obligations. The term "obligations" is used herein in its broadest and most
comprehensive sense and shall be deemed to include, without limitation, all interest and
charges, prepayment charges, late charges and fees at any time accruing or assessed
on any of the Secured Obligations.
4. Incorporation. All terms of the City Note and the Secured Obligations are
incorporated herein by this reference. All persons who may have or acquire an interest
in the Property shall be deemed to have notice of the terms of all of the foregoing
documents.
5. Mortgagee -in -Possession. Neither the assignment of rents set forth in the
Deed of Trust nor the exercise by Beneficiary of any of its rights or remedies hereunder
shall be deemed to make Beneficiary a "mortgagee -in -possession" or otherwise liable in
any manner with respect to the Property, unless Beneficiary, in person or by agent,
assumes actual possession thereof. Nor shall appointment of a receiver for the
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Property by any court at the request of Beneficiary or by agreement with Trustor, or the
entering into possession of the Property by such receiver, be deemed to make
Beneficiary a "mortgagee -in -possession" or otherwise liable in any manner with respect
to the Property.
6. No Cure. In the event Beneficiary collects and receives any rents under
the Deed of Trust upon any default hereof, such collection or receipt shall in no way
constitute a curing of the default, except if and to the extent the same are sufficient to
cure all monetary defaults and no other defaults then exist.
7. Possession Upon Default. Upon the occurrence of and during the
continuation of a default, Beneficiary, after having given notice and the applicable cure
periods having expired with the default having not been cured (hereinafter, a "default"),
may, at its option, without any action on its part being required and without in any way
waiving such default, take possession of the Property in accordance with applicable law
and have, hold, manage, lease and operate the same, on such terms and for such
period of time as Beneficiary may deem proper, and may collect and receive all rents
and profits, with full power to make, from time to time, all commercially reasonable
alterations, renovations, repairs or replacements thereto as may seem proper to
Beneficiary, and to apply such rents and profits to the payment of (a) the cost of all such
alterations, renovations, repairs and replacements, and all costs and expenses incident
to taking and retaining possession of the Property, and the management and operation
thereof, and keeping the same properly insured; (b) all taxes, charges, claims,
assessments, and any other liens which may be prior in lien or payment of the City
Note, and premiums for insurance, with interest on all such items; and (c) the
indebtedness secured hereby, together with all costs and attorney's fees, in such order
or priority as to any of such items as Beneficiary in its sole discretion may determine,
any statute, law, custom or use to the contrary notwithstanding. Any amounts received
by Beneficiary or its agents in the performance of any acts prohibited by the terms of
this assignment, including, but not limited to, any amounts received in connection with
any cancellation, modification or amendment of any lease prohibited by the terms of this
assignment and any rents and profits received by Trustor after the occurrence of a
default shall be held by Trustor as trustee for Beneficiary and all such amounts shall be
accounted for to Beneficiary and shall not be commingled with other funds of the
Trustor. Any person receiving any portion of such trust funds shall receive the same in
trust for Beneficiary as if such person had actual or constructive notice that such funds
were impressed with a trust in accordance therewith.
8. Receiver. In addition to any and all other remedies of Beneficiary set forth
under this Deed of Trust or permitted at law or in equity, if a default shall have occurred
and not have been cured within any applicable cure period, Beneficiary, to the extent
permitted by law and without regard to the value, adequacy or occupancy of the security
for the Note and other sums secured hereby, shall be entitled as a matter of right if it so
elects to the appointment of a receiver to enter upon and take possession of the
Property and to collect all rents and profits and apply the same as the court may direct,
and such receiver may be appointed by any court of competent jurisdiction by ex parte
application and without notice, notice of hearing being hereby expressly waived. The
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9565740.2
expenses, including receiver's fees, attorneys' fees, costs and agent's compensation,
incurred pursuant to the power herein contained shall be secured by this Deed of Trust.
9. Notice to Beneficiary. Notices to Beneficiary shall be sent to Beneficiary
addressed to:
City of Poway
13325 Civic Center Drive
Poway, CA 92064
Attn: City Clerk
[End —Signature page follows]
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IN WITNESS WHEREOF, Trustor has executed this Rider on the date of Trustor's
acknowledgment herein below, to be effective for all purposes as of the day and year
first set forth above.
POWAY COMMONS, LLC, a Delaware
limited liability .. pan
Dated: I/2 f Z , 2020 By:
manager
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Resolution No. 19-013
ATTACHMENT NO. 9
PROJECT BUDGET
Poway Commons, LLC
Preliminary Project Cost Budget
I. Project Description
Site Area
Average Unit Size
Number of Units
Future Retail Pads
9.30 Acres
1,721 SF
98 Units
2.30 Acres
II. Development Costs
A. Direct Costs
Site Improvements $6,451,000
Direct Vertical Construction $20,100,034
Other/Contingency $2,340,260
Total Direct Costs $28,891,294
B. Indirect Costs
Engineering $1,092,000
Permits & Fees $2,205,000
Other Soft Costs (Prop Tax, Title, Escrow,
Bonding) $1,335,667
G&A $2,376,340
Selling & Marketing Costs $5,391,933
Other Indirects $950,000
Total Indirect Costs $13,350,939
C. Financing Costs $2,233,416
D. Developer Land Cost $8,300,000
E. Total Development Costs $52,775,649
*These are preliminary budget estimates based on preliminary site plans. Subject to change
with entitlement, project conditions and approved plans.
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March 19, 2019 Item #3.1
Resolution No. 19-013
882/012782-0020
37 t520T iL5/01/20
ATTACHMENT NO. 10
FORM OF RELEASE OF CONSTRUCTION COVENANTS
[SEE ATTACHED]
March 19, 2019 Item #3.1
Resolution No. 19-013
Page 102
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
(Space above for Recorder's Use Only)
CITY OF POWAY
RELEASE OF CONSTRUCTION COVENANTS
A. POWAY COMMONS, LLC, a Delaware limited liability company ("Developer"), is
the owner of fee title to that certain real property legally described in Exhibit "A" attached hereto
and incorporated herein by reference (the "Site"); and
B. By a Purchase, Sale, and Development Agreement (hereinafter referred to as the
"Agreement") dated , 2019, by and between Developer and the City of Poway, a
California municipal corporation ("City"), the Developer has redeveloped the Site in accordance
with the Agreement; and
C. Pursuant to Section 5.13 of the Agreement, promptly after Developer's completion
of the "Project" (as that term is defined in the Agreement) upon the Site, and upon request by
Developer, City shall furnish Developer with a Release of Construction Covenants in such form
as to permit it to be recorded in the Official Records of the County of San Diego; and
D. The issuance by City of the Release of Construction Covenants shall be conclusive
evidence that Developer has complied with the terms of the Agreement pertaining to the
development of the Site; and
E. Developer has requested that City furnish Developer with the Release of
Construction Covenants; and
F. City has conclusively determined that the development of the Site has been
satisfactorily completed as required by the Agreement.
NOW, THEREFORE:
1. As provided in the Agreement, City does hereby certify that development of the
Site has been fully and satisfactorily performed and completed, and that such development is in
full compliance with said Agreement.
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Resolution No. 19-013
Page 103
2. This Release of Construction Covenants shall not constitute evidence of
compliance with or satisfaction of any obligation of Developer to any holder of a mortgage, or any
insurer of a mortgage, securing money loaned to finance construction work on the Site, or any
part thereof.
3. This Release of Construction Covenants is not a Notice of Completion as referred
to in California Civil Code Section 3093.
4. Except as stated herein, nothing contained in this instrument shall modify in any
way any other provisions of the Agreement or any other provisions of any agreements or
documents referenced therein.
IN WITNESS WHEREOF, City has executed this Release of Construction Covenants as
of this day of , 20 .
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City Manager, City of Poway
ATTEST:
City Clerk, City of Poway
-2-
Resolution No. 19-013
Page 104
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
On
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.
before me,
(insert name and title of the officer)
,
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
(Seal)
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
On
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.
before me,
(insert name and title of the officer)
,
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 (Seal)
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Resolution No. 19-013
Page 105
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
Real property in the City of Poway, County of San Diego, State of California, described as follows:
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EXHIBIT "A" Resolution No. 19-013
DEPICTION OF CITY EXCHANGE PROPERTY
AND AUTHORITY EXCHANGE PROPERTY
Future City FErcels
Future Airdab! e Site