HomeMy Public PortalAbout2014-01-01 Fullerton Successor Agency Professional Services Agmt for Escrow Services Pursuant to an Enforceable Obligation - Gold Coast Escrow FULLERTON SUCCESSOR AGENCY
PROFESSIONAL SERVICES AGREEMENT
FOR ESCROW SERVICES
PURSUANT TO AN ENFORCEABLE OBLIGATION
1. PARTIES AND DATE.
This Professional Services Agreement for Escrow Services Pursuant to
Enforceable Obligation ("Agreement") is to be effective January 1, 2014, and is entered
into by and between the Fullerton Successor Agency to the former Fullerton
Redevelopment Agency, a public agency under Health and Safety Code section
34173, with its principal place of business at 303 West Commonwealth Avenue,
Fullerton, CA 92632 ("Successor Agency") and Gold Country Escrow, Inc., a California
corporation, with its principal place of business at 18180 Yorba Linda Blvd., Suite 503,
Yorba Linda, CA 92886 ("Consultant"). Successor Agency and Consultant are
sometimes individually referred to herein as "Party" and collectively as "Parties."
2. RECITALS.
2.1 Consultant.
Consultant desires to perform and assume responsibility for the provision of
professional escrow services required by the Successor Agency on the terms and
conditions set forth in this Agreement. Consultant represents that it is experienced in
providing professional escrow services to public clients, is licensed in the State of
California, and is familiar with the plans of Successor Agency.
2.2 Finding of Enforceable Obligation.
Pursuant to Assembly Bill 26 from the First Extraordinary Session of the 2011-12
California Legislative Session ("ABx1 26") as amended by Assembly Bill 1484 from the
2011-12 Regular Legislative Session ("AB 1484"), as those laws may be amended from
time to time (collectively, the "Dissolution Law"), the Successor Agency submitted to the
California Department of Finance ("DOF") the Recognized Obligation Payment
Schedule ("ROPS") covering the 6-month period commencing January 1 , 2014 (referred
to as "BOPS 13-1413"). One of the items for which the Successor Agency sought DOF
approval as an "enforceable obligation," as defined in the Dissolution Law, is that certain
Owner Participation Agreement by and between the Fullerton Redevelopment Agency
("RDA") and Steven Peck, as Trustee of the Steven Peck Inter Vivos Trust ("Peck" or
"Participant"), entered June 4, 1991 (the "OPA"), with a total funding commitment from
the RDA to Peck in the amount of $6,250,000 (the "Total OPA Funding Obligation" and
"Total OPA Funding Obligation Amount"). A true and correct copy of the OPA is
attached hereto as Exhibit "A" and incorporated herein.
On December 17, 2013, DOF issued its final determination letter for the
Successor Agency's BOPS 13-14B (the "BOPS Final Determination Letter"), in which
DOF determined the OPA is an "enforceable obligation," as defined in the Dissolution
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Law, and approved funding for the BOPS 13-14B period in the amount of $4,125,000
from the Redevelopment Property Tax Trust Fund ("RPTTF"), as defined in the
Dissolution Law. A true and correct copy of the BOPS Final Determination Letter is
attached hereto as Exhibit "B" and incorporated herein.
2.3 Funding Approval and Payment Obligations.
Pursuant to Section 6.2.2 of the OPA, the RDA has the obligation to diligently
prosecute to completion the construction of a parking structure at such a time as the
renovation of the "Fox Theatre" redevelopment project commences, which event has
occurred. Pursuant to the BOPS Final Determination Letter, DOF approved $4,125,000
in funding from the RPTTF (the "BOPS 13-14B Approved RPTTF Funding" and "BOPS
13-14B Approved RPTTF Funding Amount") to satisfy the obligations of the Successor
Agency (as successor-in-interest by operation of law) to Peck to diligently prosecute to
completion the construction of a parking structure on the "Parking Structure Parcel' as
defined in the OPA. For purposes of this agreement, the parking structure to be
constructed on the Parking Structure Parcel is referred to as the 'Parking Structure
Project."
2.4 Services.
Successor Agency desires to engage Consultant to render such escrow services
for the administration and distribution of funds received by the Successor Agency from
the RPTTF for the Total OPA Funding Obligation (the 'Total OPA Funding Obligation
Services" or "Services") as set forth in this Agreement.
In order for Consultant to perform the Total OPA Funding Obligation Services as
set forth in this Agreement, the Successor Agency shall transfer to Consultant funds
from the RPTTF received by the Successor Agency to pay for the Total OPA Funding
Obligation, so long as such additional funding amount is approved by DOF by way of a
BOPS pursuant to the Dissolution Law, including, by way of example, the BOPS 13-14B
Approved RPTTF Funding Amount.
2.5 Implementing Agreement for Enforceable Obligation.
The parties acknowledge and agree that this Agreement is entered into to be in
compliance with the OPA, a DOF-approved enforceable obligation pursuant to Health
and Safety Code section 34177.3(a).
3. TERMS.
3.1 Scope of Services and Term.
3.1.1 General Scope of Services. Consultant promises and agrees to
furnish to the Successor Agency all labor, materials, tools, equipment, services, and
incidental and customary work necessary to fully and adequately supply the Services.
The Services are more particularly described in Exhibit "C" attached hereto and
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incorporated herein by reference. All Services shall be subject to, and performed in
accordance with, this Agreement, the exhibits attached hereto and incorporated herein
by reference, and all applicable local, state and federal laws, rules and regulations.
3.1 .2 Term. The term of this Agreement shall commence from the date
upon which the Successor Agency received the BOPS 13-14B Approved RPTTF
Funding Amount and shall expire, if not terminated earlier pursuant to this Agreement,
on the date that is the earliest of: (i) the date on which all of the funds received by the
Successor Agency for the Total OPA Funding Obligation have been spent in
furtherance of diligently prosecuting to completion the construction of the Parking
Structure Project, (ii) the completion of construction of the Parking Structure Project, or
(iii) June 30, 2015. The Successor Agency shall have the unilateral option, at its sole
discretion, to renew this Agreement every six (6) months for no more than ten (10)
additional 6-month terms pursuant to the Schedule of Services identified in Section
3.2.2 of this Agreement. Each 6-month renewal period shall correspond to a 6-month
BOPS period. In the event that the Dissolution Law is amended to adjust the frequency
of the BOPS periods, the Successor Agency shall have the unilateral option, at its sole
discretion, to renew this Agreement for a period that corresponds to the newly
established BOPS period, with each renewal option, if exercised, to correspond to the
newly established ROPS period; provided, however, that this Agreement may not be
renewed for more than five (5) years after the original expiration date without further
amendment of this Agreement. Any renewal period under this Agreement shall be
considered part of the "term" of this Agreement. Consultant shall complete the Services
within the term of this Agreement, and shall meet any other established schedules and
deadlines.
3.2 Responsibilities of Consultant.
3.2.1 Control and Payment of Subordinates; Independent Contractor.
The Services shall be performed by Consultant or under its supervision. Consultant
shall determine the means, methods and details of performing the Services subject to
the requirements of this Agreement. Successor Agency retains Consultant on an
independent contractor basis and not as an employee. Consultant retains the right to
perform similar or different services for others during the term of this Agreement. Any
additional personnel performing the Services under this Agreement on behalf of
Consultant shall also not be employees of Successor Agency and shall at all times be
under Consultant's exclusive direction and control. Consultant shall pay all wages,
salaries, and other amounts due such personnel in connection with their performance of
Services under this Agreement and as required by law. Consultant shall be responsible
for all reports and obligations respecting such additional personnel, including, but not
limited to: social security taxes, income tax withholding, unemployment insurance,
disability insurance, and workers' compensation insurance.
3.2.2 Schedule of Services. Consultant shall perform the Services
expeditiously, within the term of this Agreement, and in accordance with the Schedule of
Services set forth in Exhibit "D" attached hereto and incorporated herein by reference.
Consultant represents that it has the professional and technical personnel required to
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perform the Services in conformance with such conditions. In order to facilitate
Consultant's conformance with the Schedule, Successor Agency shall respond to
Consultant's submittals in a timely manner. Upon request of Successor Agency,
Consultant shall provide a more detailed schedule of anticipated performance to meet
the Schedule of Services.
3.2.3 Conformance to Applicable Requirements. All work prepared by
Consultant shall be subject to the approval of Successor Agency.
3.2.4 Substitution of Key Personnel. Consultant has represented to
Successor Agency that certain key personnel will perform and coordinate the Services
under this Agreement. Should one or more of such personnel become unavailable,
Consultant may substitute other personnel of at least equal competence upon written
approval of Successor Agency. In the event that Successor Agency and Consultant
cannot agree as to the substitution of key personnel, Successor Agency shall be entitled
to terminate this Agreement for cause. As discussed below, any personnel who fail or
refuse to perform the Services in a manner acceptable to the Successor Agency, or who
are determined by the Successor Agency to be uncooperative, incompetent, a threat to
the adequate or timely completion of the Services or a threat to the safety of persons or
property, shall be promptly removed from the Services by the Consultant at the request
of the Successor Agency.
The key personnel for performance of this Agreement are as follows: for
CONSULTANT: Wendy Iwanaga or successor to the same management position.
3.2.5 Successor Agency's Representative. The Successor Agency
hereby designates the Successor Agency's Executive Director, or his or her designee,
to act as its representative for the performance of this Agreement ("Successor Agency's
Representative"). Successor Agency's Representative shall have the power to act on
behalf of the Successor Agency for all purposes under this Agreement. Consultant shall
not accept direction or orders from any person other than the Successor Agency's
Representative or his or her designee.
3.2.6 Consultant's Representative. Consultant hereby designates the
same individual identified in Section 3.2.4 above, or his or her designee, to act as its
representative for the performance of this Agreement ("Consultant's Representative").
Consultant's Representative shall have full authority to represent and act on behalf of
the Consultant for all purposes under this Agreement. The Consultant's Representative
shall supervise and direct the Services, using his best skill and attention, and shall be
responsible for all means, methods, techniques, sequences and procedures and for the
satisfactory coordination of all portions of the Services under this Agreement.
3.2.7 Coordination of Services. Consultant agrees to work closely with
Successor Agency staff in the performance of Services and shall be available to
Successor Agency's staff, consultants and other staff at all reasonable times.
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3.2.8 Standard of Care; Performance of Employees. Consultant shall
perform all Services under this Agreement in a skillful and competent manner,
consistent with the standards generally recognized as being employed by professionals
in the same discipline in the State of California. Consultant represents and maintains
that it is skilled in the professional calling necessary to perform the Services.
Consultant warrants that all employees and subconsultants shall have sufficient skill
and experience to perform the Services assigned to them. Finally, Consultant
represents that it, its employees and subconsultants have all licenses, permits,
qualifications and approvals of whatever nature that are legally required to perform the
Services, and that such licenses and approvals shall be maintained throughout the term
of this Agreement. As provided for in the indemnification provisions of this Agreement,
Consultant shall perform, at its own cost and expense and without reimbursement from
the Successor Agency, City of Fullerton ("City"), or any of City's commissioners, joint
power authorities, separate governing agencies or authorities, departments, or
committees ("City Related Entities"), any services necessary to correct errors or
omissions which are caused by the Consultant's failure to comply with the standard of
care provided for herein. Any employee of the Consultant or its sub-consultants who is
determined by the City Related Entities to be uncooperative, incompetent, a threat to
the adequate or timely completion of the Project, a threat to the safety of persons or
property, or any employee who fails or refuses to perform the Services in a manner
acceptable to the City Related Entities, shall be promptly removed from providing the
Services by the Consultant and shall not be re-employed to perform any of the Services.
3.2.9 Laws and Reaulations. Consultant shall keep itself fully informed of
and in compliance with all local, state and federal laws, rules and regulations in any
manner affecting the performance of the Services, including all Cal/OSHA requirements,
and shall give all notices required by law. Consultant shall be liable for all violations of
such laws and regulations in connection with Services. If the Consultant performs any
work knowing it to be contrary to such laws, rules and regulations and without giving
written notice to the Successor Agency, Consultant shall be solely responsible for all
costs arising therefrom. Consultant shall defend, indemnify and hold the Successor
Agency and all City Related Entities and their officials, directors, officers, employees
and agents free and harmless, pursuant to the indemnification provisions of this
Agreement, from any claim or liability arising out of any failure or alleged failure to
comply with such laws, rules or regulations.
3.2.10 Insurance.
3.2.10.1 Time for Compliance. Consultant shall not
commence Work under this Agreement until it has provided evidence satisfactory to the
Successor Agency that it has secured all insurance required under this section. In
addition, Consultant shall not allow any subconsultant to commence work on any
subcontract until it has provided evidence satisfactory to the Successor Agency that the
subconsultant has secured all insurance required under this section.
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3.2.10.2 Types of Insurance Required. As a condition
precedent to the effectiveness of this Agreement for work to be performed hereunder
and without limiting the indemnity provisions of the Agreement, the Consultant in partial
performance of its obligations under such Agreement, shall procure and maintain in full
force and effect during the term of the Agreement, the following policies of insurance. If
the existing policies do not meet the insurance requirements set forth herein, Consultant
agrees to amend, supplement or endorse the policies to do so.
(a) Commercial General Liability: Commercial General Liability
Insurance which affords coverage at least as broad as
Insurance Services Office "occurrence" form CG 0001 , with
minimum limits of at least $1,000,000 per occurrence, and if
written with an aggregate, the aggregate shall be double the
per occurrence limit. Defense costs shall be paid in addition
to the limits.
The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability
exclusion for claims or suits by one insured against another;
or (3) contain any other exclusion contrary to the Agreement.
(b) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and
Employer's Liability Insurance with a limit of not less than
$1,000,000 per accident for bodily injury and disease.
(c) Surety Bond or, in lieu thereof, an Assignment to
Commissioner of Corporations, in an amount of no less than
$50,000 or minimum amount as may be required by law or
directive of the Commissioner of Corporations, whichever is
more.
(d) Professional Liability Insurance with a limit of not less than
$1 ,000,000. If policy is written as a "claims made" policy, the
retro date of the policy shall be prior to the start of the
contract work.
(e) Employee/Officer Fidelity Bond with a minimum limit of
$4,000,000, providing coverage for the acts of all
employees, officers and directors.
3.2.10.3 Endorsements. Required insurance policies shall not
be in compliance if they include any limiting provision or endorsement that has not been
submitted to the Successor Agency for approval.
(A) The policy or policies of insurance required by Section
3.2.10.2 (a) (Commercial General Liability) shall be endorsed to provide the following:
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(1) Additional Insured: The Successor Agency, all City Related
Entities, and their respective officials, officers, employees,
agents, and volunteers shall be additional insureds with
regard to liability and defense of suits or claims arising out of
the performance of the Agreement.
Additional Insured Endorsements shall not (1) be restricted
to "ongoing operations"; (2) exclude "contractual liability"; (3)
restrict coverage to "sole" liability of Consultant; or (4)
contain any other exclusions contrary to the Agreement.
(2) Cancellation: Required insurance policies shall not be
canceled or the coverage reduced until a thirty (30) day
written notice of cancellation has been served upon the
Successor Agency except ten (10) days shall be allowed for
non-payment of premium.
(B) The policy or policies of insurance required by Section
3.2.10.2 (b) (Umbrella Policy) shall be endorsed to provide the following:
(1) Cancellation: Required insurance policies shall not be
canceled or the coverage reduced until a thirty (30) day
written notice of cancellation has been served upon the
Successor Agency except ten (10) days shall be allowed for
non-payment of premium.
(C) The policy or policies of insurance required by Section
3.2.10.2 (c) (Workers' Compensation) shall be endorsed to provide the following:
(1) Waiver of Subrogation: A waiver of subrogation stating that
the insurer waives all rights of subrogation against the
indemnified parties.
(2) Cancellation: Required insurance policies shall not be
canceled or the coverage reduced until a thirty (30) day
written notice of cancellation has been served upon the
Successor Agency except ten (10) days shall be allowed for
non-payment of premium.
3.2.10.4 Primary and Non-Contributing Insurance. All
insurance coverages shall be primary and any other insurance, deductible, or self-
insurance maintained by the indemnified parties shall not contribute with this primary
insurance. Policies shall contain or be endorsed to contain such provisions.
3.2.10.5 Waiver of Subrogation. Required insurance
coverages shall not prohibit Consultant from waiving the right of subrogation prior to a
loss. Consultant shall waive all subrogation rights against the indemnified parties.
Policies shall contain or be endorsed to contain such provisions.
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3.2.10.6 Deductible. Any deductible or self-insured retention
must be approved in writing by the Successor Agency and shall protect the indemnified
parties in the same manner and to the same extent as they would have been protected
had the policy or policies not contained a deductible or self-insured retention.
3.2.10.7 Evidence of Insurance. The Consultant, concurrently
with the execution of the Agreement, and as a condition precedent to the effectiveness
thereof, shall deliver either certified copies of the required policies, or original
certificates and endorsements on forms approved by the Successor Agency. The
certificates and endorsements for each insurance policy shall be signed by a person
authorized by that insurer to bind coverage on its behalf. At least fifteen (15 days) prior
to the expiration of any such policy, evidence of insurance showing that such insurance
coverage has been renewed or extended shall be filed with the Successor Agency. If
such coverage is cancelled or reduced, Consultant shall, within ten (10) days after
receipt of written notice of such cancellation or reduction of coverage, file with the
Successor Agency evidence of insurance showing that the required insurance has been
reinstated or has been provided through another insurance company or companies.
3.2.10.8 Failure to Maintain Coverage. Consultant agrees to
suspend and cease all operations hereunder during such period of time as the required
insurance coverage is not in effect and evidence of insurance has not been furnished to
the Successor Agency. The Successor Agency shall have the right to withhold any
payment due Consultant until Consultant has fully complied with the insurance
provisions of this Agreement.
In the event that the Consultant's operations are suspended for
failure to maintain required insurance coverage, the Consultant shall not be entitled to
an extension of time for completion of the Services because of production lost during
suspension.
3.2.10.9 Acceptability of Insurers. Each such policy shall be
from a company or companies with a current A.M. Best's rating of no less than A:VII and
authorized to do business in the State of California, or otherwise allowed to place
insurance through surplus line brokers under applicable provisions of the California
Insurance Code or any federal law.
3.2.10.10 Insurance for Subconsultants. All Subconsultants
shall be included as additional insureds under the Consultant's policies, or the
Consultant shall be responsible for causing Subconsultants to purchase the appropriate
insurance in compliance with the terms of these insurance requirements, including
adding the Successor Agency, all City Related Entities, and their respective officials,
officers, employees, agents and volunteers as an Additional Insured to the
Subconsultant's policies.
3.2.11 Safety. Consultant shall execute and maintain its work so as to
avoid injury or damage to any person or property. In carrying out its Services, the
Consultant shall at all times be in compliance with all applicable local, state and federal
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laws, rules and regulations, and shall exercise all necessary precautions for the safety
of employees appropriate to the nature of the work and the conditions under which the
work is to be performed.
3.3 Fees and Payments.
3.3.1 Compensation. Consultant shall receive compensation, including
authorized reimbursements, for all Services rendered under this Agreement at the rates
set forth in Exhibit "E" attached hereto and incorporated herein by reference.
Notwithstanding any provision in this Agreement to the contrary, without the prior written
approval of Successor Agency's Executive Director, the total compensation for Services
performed by Consultant shall not exceed $12,000 ("Not To Exceed Amount"), which
Not To Exceed Amount expressly includes all fees for any and all escrow accounts that
have been opened pursuant to the Scope of Services. Extra Work may be authorized,
as described below, and if authorized, will be compensated at the rates and manner set
forth in this Agreement.
3.3.2 Payment of Compensation. Consultant shall submit to Successor
Agency a monthly itemized statement which indicates work completed and hours of
Services rendered by Consultant. The statement shall describe the amount of Services
and supplies provided since the initial commencement date, or since the start of the
subsequent billing periods, as appropriate, through the date of the statement.
Successor Agency shall, within 45 days of receiving such statement, review the
statement and pay all charges thereon approved by the Successor Agency that are
solely in furtherance of the Services to be provided under this Agreement.
3.3.3 Reimbursement for Expenses. Consultant shall not be reimbursed
for any expenses unless authorized in writing by Successor Agency.
3.3.4 Extra Work. At any time during the term of this Agreement,
Successor Agency may request that Consultant perform Extra Work. As used herein,
"Extra Work" means any work which is determined by Successor Agency to be
necessary for the proper completion of the Total OPA Funding Obligation Services, but
which the parties did not reasonably anticipate would be necessary at the execution of
this Agreement. Consultant shall not perform, nor be compensated for, Extra Work
without written authorization from Successor Agency's Representative.
3.3.5 Rate Increases. In the event that this Agreement is renewed
pursuant to Section 3.1.2, the rates set forth in Exhibit "E" may be adjusted each year at
the time of renewal in an amount such that Consultant's rates do not exceed the Cost of
Living adjustments according to the Consumer Price Index, All Urban Consumers, Los
Angeles-Riverside-Orange Counties.
3.3.6 Prevailing Wages. Consultant is aware of the requirements of
California Labor Code Section 1720, et seg., and 1770, et sem., as well as California
Code of Regulations, Title 8, Section 16000, et seq., ("Prevailing Wage Laws"), which
require the payment of prevailing wage rates and the performance of other
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requirements on "public works" and "maintenance" projects. If the Services are being
performed as part of an applicable "public works" or "maintenance" project, as defined
by the Prevailing Wage Laws, and if the total compensation is $1 ,000 or more,
Consultant agrees to fully comply with such Prevailing Wage Laws. Upon Consultant's
written request, the Successor Agency shall provide Consultant with a copy of the
prevailing rates of per diem wages in effect at the commencement of this Agreement,
but the Successor Agency shall not be in default of this Agreement for failure to provide
a copy of any prevailing wage rates. Consultant shall make copies of the prevailing
rates of per diem wages for each craft, classification or type of worker needed to
execute the Services available to interested parties upon request, and shall post copies
at the Consultant's principal place of business and at the project site. Consultant shall
defend, indemnify and hold the Successor Agency, and City Related Entities, and their
respective officials, officers, employees and agents free and harmless from any claim or
liability arising out of any failure or alleged failure to comply with the Prevailing Wage
Laws.
3.4 Accounting Records.
3.4.1 Maintenance and Inspection. Consultant shall maintain complete
and accurate records with respect to all costs and expenses incurred under this
Agreement. All such records shall be clearly identifiable. Consultant shall allow a
representative of Successor Agency during normal business hours to examine, audit,
and make transcripts or copies of such records and any other documents created
pursuant to this Agreement. Consultant shall allow inspection of all work, data,
documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
3.5 General Provisions.
3.5.1 Termination of Agreement.
3.5.1.1 Grounds for Termination. Successor Agency may, by
written notice to Consultant, terminate the whole or any part of this Agreement at any
time and without cause by giving written notice to Consultant of such termination, and
specifying the effective date thereof, at least seven (7) days before the effective date of
such termination. Upon termination, Consultant shall be compensated only for those
services which have been adequately rendered to Successor Agency, and Consultant
shall be entitled to no further compensation. Consultant may not terminate this
Agreement except for cause.
3.5.1.2 Effect of Termination. If this Agreement is terminated
as provided herein, Successor Agency may require Consultant to provide all finished or
unfinished Documents and Data and other information of any kind prepared by
Consultant in connection with the performance of Services under this Agreement.
Consultant shall be required to provide such Documents and Data and other information
within fifteen (15) days of the request. For purposes of this Agreement, "Documents
and Data" shall mean any and all documents associated with any of the Services
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provided by this Agreement, including, but not limited to, requests for proposals and
responses thereto, construction agreements, contractor and subcontractor agreements,
escrow instructions, and any other related documents in any tangible form or medium.
3.5.1 .3 Additional Services. In the event this Agreement is
terminated in whole or in part as provided herein, Successor Agency may procure, upon
such terms and in such manner as it may determine appropriate, services similar to
those terminated.
3.5.2 Delivery of Notices. All notices permitted or required under this
Agreement shall be given to the respective parties at the following address, or at such
other address as the respective parties may provide in writing for this purpose:
Consultant:
Gold Country Escrow Company
18180 Yorba Linda Blvd., Suite 503
Yorba Linda, CA 92886
Fax: (714) 579-3525
E-Mail: wendy@goldcountryescrow.com
Successor Agency:
Fullerton Successor Agency
303 W. Commonwealth Ave.
Fullerton, CA 92632
Attn: Executive Director
Fax: (714) 738-6758
E-Mail: ioef@ci.fullerton.ca.us
E-Mail: ramonac@ci.fullerton.ca.us
With Copy To:
Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Attn: William H. Ihrke, Esq.
Fax: (714) 546-9035
E-Mail: bihrke@rutan.com
Such notice shall be deemed made when personally delivered or when mailed,
forty-eight (48) hours after deposit in the U.S. Mail, first class postage prepaid and
addressed to the party at its applicable address. Actual notice shall be deemed
adequate notice on the date actual notice occurred, regardless of the method of service,
which shall include e-mail, facsimile transmission, and personal service.
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3.5.3 Ownership of Materials and Confidentiality.
3.5.3.1 Documents & Data; Licensing of Intellectual Property.
This Agreement creates a non-exclusive and perpetual license for Successor Agency to
copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other
intellectual property embodied in Documents and Data. Consultant shall require all
subconsultants to agree in writing that Successor Agency is granted a non-exclusive
and perpetual license for any Documents and Data the subconsultant prepares under
this Agreement. Consultant represents and warrants that Consultant has the legal right
to license any and all Documents and Data. Consultant makes no such representation
and warranty in regard to Documents and Data which were prepared by design
professionals other than Consultant or provided to Consultant by the Successor
Agency. Successor Agency shall not be limited in any way in its use of the Documents
and Data at any time, provided that any such use not within the purposes intended by
this Agreement shall be at Successor Agency's sole risk.
3.5.3.2 Confidentiality. All ideas, memoranda, specifications,
plans, procedures, drawings, descriptions, computer program data, input record data,
written information, and other Documents and Data either created by or provided to
Consultant in connection with the performance of this Agreement shall be held
confidential by Consultant. Such materials shall not, without the prior written consent of
Successor Agency, be used by Consultant for any purposes other than the performance
of the Services. Nor shall such materials be disclosed to any person or entity not
connected with the performance of the Services or the Project. Nothing furnished to
Consultant which is otherwise known to Consultant or is generally known, or has
become known, to the related industry shall be deemed confidential. Consultant shall
not use Successor Agency's name or insignia or any publicity pertaining to the Services
in any magazine, trade paper, newspaper, television or radio production or other similar
medium without the prior written consent of Successor Agency, which may be granted
or denied in its sole and absolute discretion.
3.5.4 Cooperation; Further Acts. The Parties shall fully cooperate with
one another, and shall take any additional acts or sign any additional documents as
may be necessary, appropriate or convenient to attain the purposes of this Agreement.
3.5.5 Attorney's Fees. If either party commences an action against the
other party, either legal, administrative or otherwise, arising out of or in connection with
this Agreement, the prevailing party in such litigation shall be entitled to have and
recover from the losing party reasonable attorney's fees and all other costs of such
action.
3.5.6 Indemnification. Consultant shall defend (with legal counsel of
Successor Agency's choice), indemnify and hold harmless the Successor Agency, all
City Related Entities, and their respective officials, officers, employees, volunteers and
agents from any and all claims, demands, causes of action, costs, expenses, liability,
loss, damage or injury, in law or equity, to property or persons, including wrongful death,
in any manner arising out of or incident to any alleged acts, omissions, negligence or
698/036753 0126
70575983 AN]1/14 -12-
willful misconduct of Consultant, its officials, officers, employees, agents, subcontractors
and subconsultants arising out of or in connection with the performance of the Services
or this Agreement, including without limitation the payment of all consequential
damages and attorneys fees and other related costs and expenses. Consultant shall
defend, at Consultant's own cost, expense and risk, any and all such aforesaid suits,
actions or other legal proceedings of every kind that may be brought or instituted
against Successor Agency, all City Related Entities, and their respective directors,
officials, officers, employees, agents or volunteers. Consultant shall pay and satisfy any
judgment, award or decree that may be rendered against Successor Agency, all City
Related Entities, and their respective directors, officials, officers, employees, agents or
volunteers, in any such suit, action or other legal proceeding. Consultant shall
reimburse Successor Agency, all City Related Entities, and their respective directors,
officials, officers, employees, agents and/or volunteers, for any and all legal expenses
and costs incurred by each of them in connection therewith or in enforcing the indemnity
herein provided. Consultant's obligation to indemnify shall not be restricted to insurance
proceeds, if any, received by the Successor Agency, all City Related Entities, and their
respective directors, officials, officers, employees, agents or volunteers.
3.5.7 Entire Agreement. This Agreement contains the entire Agreement
of the parties with respect to the subject matter hereof, and supersedes all prior
negotiations, understandings or agreements. This Agreement may only be modified by
a writing signed by both parties.
3.5.8 Governing Law. This Agreement shall be governed by the laws of
the State of California without regard to conflict of law principles. Venue shall be in
Orange County, California.
3.5.9 Time of Essence. Time is of the essence for each and every
provision of this Agreement.
3.5.10 Successor Agency's Right to Employ Other Consultants.
Successor Agency reserves right to employ other consultants in connection with the
Services.
3.5.11 Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the parties.
3.5.12 Assignment or Transfer. Consultant shall not assign, hypothecate,
or transfer, either directly or by operation of law, this Agreement or any interest herein
without the prior written consent of the Successor Agency. Any attempt to do so shall
be null and void, and any assignees, hypothecates or transferees shall acquire no right
or interest by reason of such attempted assignment, hypothecation or transfer.
3.5.13 Construction; References; Captions. Since the Parties or their
agents have participated fully in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and not strictly for
or against any Party. Any term referencing time, days or period for performance shall
698/036753-0126
70575983.06/1 P 14 -13-
be deemed calendar days and not work days. All references to Consultant include all
personnel, employees, agents, and subconsultants of Consultant, except as otherwise
specified in this Agreement. All references to Successor Agency include its elected
officials, officers, employees, agents, and volunteers except as otherwise specified in
this Agreement. The captions of the various articles and paragraphs are for
convenience and ease of reference only, and do not define, limit, augment, or describe
the scope, content, or intent of this Agreement.
3.5.14 Amendment: Modification. No supplement, modification, or
amendment of this Agreement shall be binding unless executed in writing and signed by
both Parties.
3.5.15 Waiver. No waiver of any default shall constitute a waiver of any
other default or breach, whether of the same or other covenant or condition. No waiver,
benefit, privilege, or service voluntarily given or performed by a Party shall give the
other Party any contractual rights by custom, estoppel, or otherwise.
3.5.16 Third Party Beneficiaries. There are no intended third party
beneficiaries of any right or obligation assumed by the Parties, except that the City of
Fullerton is an expressed third party beneficiary of the rights and benefits granted to the
Successor Agency, as specified in this Agreement.
3.5.17 Invalidity: Severability. If any portion of this Agreement is declared
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions shall continue in full force and effect.
3.5.18 Prohibited Interests. Consultant maintains and warrants that it has
not employed nor retained any company or person, other than a bona fide employee
working solely for Consultant, to solicit or secure this Agreement. Further, Consultant
warrants that it has not paid nor has it agreed to pay any company or person, other than
a bona fide employee working solely for Consultant, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, Successor Agency
shall have the right to rescind this Agreement without liability. For the term of this
Agreement, no member, officer or employee of Successor Agency, during the term of
his or her service with Successor Agency, shall have any direct interest in this
Agreement, or obtain any present or anticipated material benefit arising therefrom.
3.5.19 Equal Opportunity Employment. Consultant represents that it is an
equal opportunity employer and it shall not discriminate against any subconsultant,
employee or applicant for employment because of race, religion, color, national origin,
handicap, ancestry, sex or age. Such non-discrimination shall include, but not be
limited to, all activities related to initial employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff or termination. Consultant shall also
comply with all relevant provisions of related federal, state, and local laws.
698/036753-0126
7057598.3 ON 11/14 -14-
3.5.20 Labor Certification. By its signature hereunder, Consultant
certifies that it is aware of the provisions of Section 3700 of the California Labor Code
which require every employer to be insured against liability for Worker's Compensation
or to undertake self-insurance in accordance with the provisions of that Code, and
agrees to comply with such provisions before commencing the performance of the
Services.
3.5.21 Authority to Enter Agreement. Consultant has all requisite power
and authority to conduct its business and to execute, deliver, and perform the
Agreement. Each Party warrants that the individuals who have signed this Agreement
have the legal power, right, and authority to make this Agreement and bind each
respective Party. Successor Agency's Executive Director has the authority to execute
this Agreement for the Successor Agency and the authority to enter into any and all
amendments, modification, interpretations, and other written documents so long as the
Successor Agency's costs and obligations under this Agreement are not materially
increased or altered.
3.5.22 Counterparts. This Agreement may be signed in counterparts,
each of which shall constitute an original.
3.6 Subcontracting.
3.6.1 Prior Approval Required. Consultant shall not subcontract any
portion of the work required by this Agreement, except as expressly stated herein,
without prior written approval of Successor Agency. Subcontracts, if any, shall contain
a provision making them subject to all provisions stipulated in this Agreement.
[Signatures on next page]
698/036753-0126
7057598.3.06/11/14 -15-
IN WITNESS WHEREOF, Successor Agency and Consultant have executed this
Agreement by and through the signatures set forth below.
FULLERTON SUCCESSOR GOLD COUNTRY ESCROW
AGENCY COMPANY
By: .__ By:
Exec uty e Dj'rector
�,- ! / Name:
V Title:
Attest:
[If Corporation, TWO SIGNATURES, President OR
Vice President AND Secretary, AND CORPORATE
SEAL OF CONTRACTOR REQUIRED]
B4cc �r
ency Clerk By:
Name:
Title:
Approved as to Form:
Successor Agency Legal Counsel
698/036753-0126 t
7057598.3 a06/11/16
IN WITNESS WHEREOF, Successor Agency and Consultant have executed this
Agreement by and through the signatures set forth below.
FULLERTON SUCCESSOR GOLD COUNT ES RO
AGENCY COMPANY
By: By: 0 7
Executive Director
Name:
Title: /Pfi✓
Attest:
[if Corporation, TWO SIGNATURES, President OR
Vice President AND Secretary, AND CORPORATE
SEAL OF CONTRACTOR REQUIRED]
By:
Successor Agency Clerk By:
Name:
Title:
Approved as to Form:
By: —
Successor Agency Legal Counsel
69SM16731 9126
7057598 i P001114 -16-
t
EXHIBIT "A"
PECK OWNER PARTICIPATION AGREEMENT
[Attached]
698/036753-0126
7057598.3.06/11/14 '17'
OPMER PARTICIPATION AGREF�ENT
By and Between
The F=ERTON REDEVELOPMENT AGENCY
and
STEVEN PECK, as Trustee of the
Steven Peck Inter Vfvos Trust
9/112/061334-0035/001 06/04/91
TABLE OF CONTENTS
Pace
SECTION 1. PURPOSE OF THIS AGREEMENT. . . . . . . . . . . . 2
SECTION2. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 CEQA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 City. . . . • . . . . . . . . . . . . . . . . . . 3
2.5 Consumer Price Index. . . . . . . . . . . . . . . . 3
2.6 Development Project Plans . . . . . . . . . . . . 3
2.7 Ellis Place Parking Parcel . . . . . . . . . . . 3
2.8 Effective Date. . . . . . . . . . . . . . . . . . . 4
2.9 Event(s) of Default. . . . . . . . 4
2.10 Evidence of Financial Capability. . . . . 4
2.11 Executive Director. . . . . . . . . . . . . . . . . . . 5
2.12 Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . 5
2.13 Hazardous Substances. . . . . . . . . . . . . . 5
2.14 McDonald's Exchange Parcel . . . . . . . . . . . 5
2.15 Owner Participant. . . . . . . . . . . . . . . . 5
2.16 Parking Structure Parcel. . . . . . . . . . . . . 5
2.17 Participant . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.18 Project. . . . . . . . . . . . . . . . . . . 6
2.19 Project Certificate of Completion. . . . 6
2.20 Public Parking Covenant Termination
Date. . . . . . . . 4 . . . . . . . . . . . . . . . . . . . . . . . 6
2. 21 Redevelopment Plan. . . . . . . . . . 6
2.22 Redevelopment Plan Expiration Date. . . 6
2.23 Sale Agreement. . . . . . . . . . . . . . . . . . . . . . . 6
2.24 Schedule of Performance. . . . . . . . . . . . . . 7
2.25 Site. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.26 Site Map. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3. PARTICIPANT REPRESENTATIONS AND
WARRANTIES. . . . . . . . . . . . . . . . . . . 7
3.1 Participant Ownership of the Site. . . . 7
3. 2 Litigation. . . . . . . . . . . . . . I . . . . . . . . . . . . 7
3. 3 No Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.4 No Violation. . . . . . . . . . . . . . . . . . . . . . . . . 7
3.5 Hazardous Substances. . . . . . . . . . . . . . . . . 8
3.6 No Possessory Interests. . . . . . . . . . . . . . 8
3.7 No Bankruptcy. . . . . . . . . . . . . . . . . . . 8
3.8 No Misrepresentation. . . . . . . . . . . . . . . . . 8
3.9 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.10 Due Execution. . . . . . . . . . . . . . . . . . . . 8
3.11 No Extraneous Consideration. . . . . . . . . . 9
-i-
SECTION 4. PARTICIPANT'S COVENANTS. . . . . . . . . . . . . . 9
4.1 Development of the Site. . . . . . . . . . . 9
4.1.1 Development in Accordance
with Plans. . . . . . . . 9
4. 1. 2 Development Project Plans. . . . 9
4. 1. 3 Final Building Plans. . . . . . 9
4.1.4 Architect and Structural
Engineer. . . . . . . . . . . . . . . . . 10
4.1.5 Evidence of Financial
Capability. . . . • . . . 10
4. 1.6 Other GovernmentalPermits. . . 10
4. 1.7 Cost of Construction. . . . . . . . . 10
4.1.8 Construction Schedule. . . . . . . . 10
4.1.9 Liability Insurance. . . . . . . . . . 11
4.1.10 Casualty Insurance. . . . . . . . . . . it
4.1. 11 Workers' Compensation
Insurance. . . . . . . . . . . . . . . . . . . . 12
4.1.12 Easements. . . . . . . . . . . . . . . . . . . . 12
4.1. 13 Rights of Access. . . . . . . . . . . . . 12
4. 1.14 Applicable Laws. . . . . . 12
4.1. 15 Prohibition Against Transfer. 12
4 .1. 16 Antidiscrimination During
Construction. . . . . . . . . . 13
4 .1. 17 Antidiscrimination After
Completion of the Project. . . . 13
4 .1.18 Antidiscrimination in
Agreements. . . . . • . . . 14
4. 1. 18 .1 Clause for Deeds 14
4.1.18. 2 Clause for Leases. . 14
4 . 1. 18.3 Clause for Contracts 14
4.1. 19 Relocation Assistance. . . . . . . . 15
4.2 Use of Site. . . . . . . . . . . . . . . 15
4.2 .1 No Inconsistent Uses. . . . . . . . . 15
4.2 .2 First-Class Condition. . . . . 15
4.3 Duration of Participant's Covenants. . 15
SECTION 5. AGENCY REPRESENTATIONS AND WARRANTIES 16
5. 1 No Approvals. . . . . . . . . . . . . . . . . . . . . . . . . 16
5.2 Due Execution. . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6. AGENCY COVENANTS. . . . . . . . . . . . . . . . . . . . . 16
6. 1 Agency Approvals. . . . . . . . . . . . . . . . . . . . . 16
6. 1. 1 Plans. . . . . . . . . . . . . . . . . . . 16
6. 1.2 City Assistance. . . . . . . . . 16
6. 1. 3 Evidence of Financial
Capability. . . . . . . . 16
6.1.4 Architect and/or Structural
Engineer. . . . . . . . . . . . . . . . . . . . . 16
6. 1.5 Assignments. . . . . . . . . . . 17
6. 1. 6 Project Certificate of
-ii-
Completion. . . . . . . . . . . . . . . . 17
6.1.7 Standards of Review. . . . . . . . . . 17
6.2 Parking and Street and Parkway
Improvements. . . . . . . . . . . . 18
6.2. 1 Construction of Public
Parking Facilities and
Street and Parkway
Improvements. . . . . . . . . . 18
6.2.2 Construction of Parking
Structure. . . . . . . . . . . . . . . . . . . . 19
6.2.3 Parking variances. . . . . . . . . . . . 19
6.3 Indemnity. . . . . . . . . . . . . . . . . . . . . 20
6.4 Relocation Assistance. . . . . . . . . . . . . . . . 20
6.5 Lease Extension. . . . . . . . . . . . . . . . . . . 20
6. 6 Areas for Contractor Use. . . . . . . . . . . 20
6.7 Duration of Agency's Covenants. . . . . . . 20
SECTION 7. DEFAULTS. . . . . . . . . . . . . . . . . . . 21
7. 1 Participant Defaults. . . . . . . . . . . . . . . . . 21
7.2 Agency Defaults. . . . . . . . . . . . . . . . . . . . . . 22
7. 3 Notice of Default. . . . . . . . . . . . . . . . . . . . 22
SECTION S. REMEDIES. . . . . . . . . . . . . . . . . . . . . . 23
8. 1 Participant Remedies. . . . . . . . . . . . . . . . . 23
8. 1.1 Damages. . . . . . . . . . . . . . . . . 23
8.1.2 Specific Performance. . . . . . . . . 23
8.1.3 Right to Terminate. . . . . . . . . . . 23
8. 2 Agency Remedies. . . . . . . . . . . . . . . . . . 24
8.2.1 Performance by Agency. . . . . . . . 24
8.2.2 Damages. . . . . . . . . . . . . . . . . 24
8.2.3 Specific Performance. . . . . . . . . 24
8.2.4 Right to Terminate. . . . . . . 24
8.3 Rights and Remedies are Cumulative. . . 25
SECTION 9. GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . 25
9.1 Covenants Run With The Land. . . . . . . . . . 25
9. 2 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 25
9.3 Attorney's Fees. . . . . . . . . . . . 25
9. 4 Notices, Demands, and Communications
Between the Parties. . . . . . . . . . . . . 25
9.5 Acceptance of Service of Process. . . . . 26
9.6 Conflicts of Interest. . . . 26
9.7 Nonliability of Agency officials and
Employees. . . . . . . . . . . . . . 26
. . . . . . . . . . . . . .
9.8 Inspection of Books and Records. . . . . . 27
9.9 Fair Meaning. . . . . . . . . . . . . . . . . . . . . . 27
9.10 Titles and Captions. . . . . . . . . . . . . . . . . . 27
9. 11 Gender. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
9. 12 Modifications. . . . . . . . . . . . . . . . . . . . . . . . 27
-iii-
9.13 Merger of Prior Agreements and
Understandings. . . . . . . . . . . . . . 27
9.14 No Third Parties Benefited. . . . . . . . . . . 27
9. 15 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 28
9.16 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 28
EXHIBIT "All LEGAL DESCRIPTION OF SITE
EXHIBIT "B" SITE MAP
EXHIBIT "C" LEGAL DESCRIPTION OF PARKING STRUCTURE PARCEL
EXHIBIT "D" LEGAL DESCRIPTION OF MCDONALD'S EXCHANGE
PARCEL
EXHIBIT "E" SCHEDULE OF PERFORMANCE
-iv-
OWNER PARTICIPATION AGRF.F.rrRNT
THIS PARTICIPATION AGREEMENT is entered into as of
1991, by and between The FULLERTON
EVELOP ENT AGENCY, a public agency, and STEVEN PECK, as
rustee of the Steven Peck Inter Vivos Trust.
a -9r. I, TALE
A. Agency is a public body, corporate and politic,
exercising governmental functions and powers and organized
and existing under the Community Redevelopment Law of the
State of California (Health and Safety Code Section 33000, et
sec• ) •
H. Agency desires to implement the Redevelopment Plan
for its Central Fullerton Redevelopment Project Area by
providing for the major renovation of current structures on
the Site, and by providing public parking on the Parking
Structure Parcel, the Ellis Place Parking Parcel, and
potentially other properties owned or to be acquired by
Agency in the vicinity of the Site, all for the non-exclusive
benefit of the Site and the Project .
C. Participant has represented to Agency that: ( i)
Participant (and a corporation wholly owned by Participant)
is the owner of the fee interest in the Site, the Ellis Place
Parking Parcel, and a portion of the Parking Structure Parcel
(Assessor 's Parcel Numbers 9 and 10 on the Assessor's Map,
Hook 29, Page 3, of the Official Records of the County of
Orange) ; (ii) Participant is prepared to redevelop the Site
in accordance with the requirements of Agency, provided the
City will permit such redevelopment and provided that on
conveyance of the interest of Participant and Participant ' s
corporation in the Parking Structure Parcel and the Ellis
Place Parking Parcel to the Agency, the Agency will covenant
to utilize the same for parking for the benefit of the Site
and the Project; and (iii) Participant qualifies as an Owner
Participant.
D. The existing private and public parking available
to the Site is not adequate to justify the expenditure of
funds contemplated herein for the redevelopment of the Site.
The economic viability of redevelopment of the Site is
dependent on the regular and convenient availability of
adequate public parking accessible to the Site.
9/112/061334-0035/001 06/04/91
E. Agency intends to purchase the interest of
Participant and Participant' s corporation in the Parking
Structure Parcel and the Ellis Place Parking Parcel and
construct .public parking thereon in order to provide public
parking for businesses and properties within the
Redevelopment Project Area described in Agency' s
Redevelopment Plan, including adequate parking to enable
Participant to redevelop the Site and construct the Project
on the Site. Agency's purchase of the interest of
Participant and Participant's corporation in the Parking
Structure Parcel and the Ellis Place Parking Parcel is being
negotiated under threat of condemnation under Agency's power
of eminent domain.
F. The City Council, by its approval of this Agree-
ment, hereby determines, pursuant to Section 15.56.170 of the
Municipal Code, that adequate off-site parking for the Site
and Project will exist in the Parking Structure Parcel, the
Ellis Place Parking Parcel, and other public parking
facilities in the area. Accordingly, the City hereby exempts
the Site and the Project if redeveloped in accordance with
this Agreement from municipal off-street parking requirements
that would otherwise apply.
A G R E E M E N T
NOW THEREFORE, in consideration of the promises and
covenants contained herein, the above recitals, and other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. PURPOSE OF THIS AGREEMENT.
This Agreement and the Exhibits hereto are intended to
effectuate the Redevelopment Plan for the Central Fullerton
Redevelopment Project Area by providing for the development
of the Project on the Site and by providing parking for the
Site and the Project on the Parking Structure Parcel, the
Ellis Place Parking Parcel, and potentially other properties
owned or to be acquired by Agency in the vicinity of the
Site. Participant has agreed to participate in the
redevelopment of the Site by entering into this Agreement
with Agency and by concurrently executing the Sale Agreement
to sell to the Agency the Ellis Place Parking Parcel and the
portion of the Parking Structure Parcel owned by Participant
and Participant's corporation. The development of the Site
and the Project pursuant to this Agreement, and the
-2-
fulfillment generally of this Agreement, are in the best
interests of the City and the welfare of its residents, and
consistent with the Redevelopment Plan, and are in accordance
with the public purposes and provisions of applicable
federal, state, and local laws and requirements.
SECTION 2 . DEFINITIONS.
The following terms as used in this Agreement shall have
the meanings given unless expressly provided to the contrary:
2.1 Acencv. The term "Agency" shall mean the
FULLERTON REDEVELOPMENT AGENCY, a public body, corporate and
politic, having its offices at 303 West Commonwealth Avenue,
Fullerton, California 92632, and any assignee of, or
successor to, the rights, powers, and responsibilities of
Agency.
2.2 Agreement . The term "Agreement" or any reference
to this "Agreement" shall mean this Owner Participation
Agreement executed by and between Agency and Participant.
2.3 CEOA. The term "CEQA" shall mean the California
Environmental Quality Act, as amended.
2.4 City. The term "City" shall mean the CITY OF
FULLERTON, CALIFORNIA, a public body, corporate and politic,
organized and existing under the laws of the State of
California and having its offices at 303 West Commonwealth
Avenue, Fullerton, California 92632.
2.5 Consumer Price Index. The term "Consumer Price
Index" shall mean the Consumer Price Index (All Items-All
Urban Consumers) for the Los Angeles-Anaheim-Riverside Area
(1982-84 = 100) , or any successor index published by the
United States Department of Labor, Bureau of Labor Statis-
tics.
2.6 Development Proiect Plans. The term "Development
Project Plans" shall mean the plans prepared by Participant
and approved by Agency and City on June 4, 1991 (DP-90-21A) ,
which plans are consistent with the Conceptual Site Plan and
which indicate all the proposed details of the construction
of the Project, including without limitation the sizes,
heights, and locations of all buildings., the building
elevations, the colors, the materials, and the signage
program.
2.7 Ellis Place Parking Parcel. The term "Ellis
Place Parking Parcel" shall mean Assessor' s Parcel Number 21
-3-
on the Assessor ' s Map, Book 29, Page 3 of the Official
Records of the County of Orange, California. The Ellis Place
Parking Parcel is owned by a corporation (Jupiter Meadows
Enterprises, Inc. ) owned by Participant. Pursuant to the
Sale Agreement, Participant 's corporation has agreed to sell
the Ellis Place Parking Parcel to Agency. Agency
contemplates the construction and maintenance of certain
public parking facilities on the Ellis Place Parking Parcel
as provided herein.
2.8 Effective Date. The term "Effective Date" shall
mean the date first written above.
2.9 Event(s) of Default. The term "Event(s) of
Default" shall mean those events listed in Sections 7 .1 and
7 .2 herein.
2.10 Evidence of Financial Capability. The term
"Evidence of Financial capability" shall mean the following
documents, together with any other documents reasonably
requested by the Executive Director:
(a) A current financial statement and/or other
documentation reasonably satisfactory to Executive
Director for the purpose of demonstrating that
Participant has adequate funds committed to cover the
difference, including working capital for a period of
not less than twelve (12 ) months after the scheduled
date for completion of construction;
(b) A copy of the contract between Participant
and his contractor for construction of the Project,
certified by Participant to be a true and correct copy
thereof; and
(c) A corporate surety bond or bonds, irrevoc-
able letter of credit, or other security instrument,
approved as to form, content, and company by Executive
Director and legal counsel of Executive Director 's
choosing with Participant ' s contractor or contractors as
principal(s) , in a penal sum not less than one hundred
percent (100%) of the amount of the construction cost of
the Project. Such security instrument shall guarantee
completion of construction of the Project and the
payment of wages for services engaged and bills con-
tracted for materials, supplies, and equipment used in
the construction of the Project and shall protect
Participant and Agency from any liability, losses, or
damages arising therefrom. Executive Director shall
have the discretion to accept alternate security in his
sole and absolute discretion.
-4-
2.11 Executive Director . The term "Executive Direc-
tor" shall mean the individual duly appointed to the position
of Executive Director of the Agency.
2.12 Force MAleure. The term "Force Majeure" shall
mean any war, insurrection, strike, lock-out, riot, flood,
earthquake, fire, casualty, Act of God, act of the public
enemy, epidemic, quarantine restriction, freight embargo,
lack of transportation, governmental restriction, unusually
severe weather, inability to secure necessary labor, mater-
ials or tools, delay of any contractor, subcontractor or
supplier, act of the other party, act or failure to act of
City or any other public or governmental agency or entity
(except that any act or failure to act of City shall not
excuse performance by Agency) , or any other cause beyond the
control or without the fault of the party claiming an
extension of time to perform.
2.13 Hazardous Substances. The term "Hazardous Sub-
stances" shall mean any substance or material defined or
designated as hazardous or toxic waste, hazardous or toxic
material, a hazardous or toxic substance, or other similar
term, by any federal, state, or local environmental statute
regulation, or ordinance presently in effect.
2.14 McDonald' s Exchange Parcel. The term "McDonald's
Exchange Parcel" shall mean that certain real property
located on Chapman Avenue east of Harbor Boulevard, in the
City of Fullerton, which is more particularly described in
Exhibit "D" attached hereto. Agency is currently negotiating
with McDonald's Corporation to acquire the McDonald's
Exchange Parcel. in the event Agency is successful in
negotiating the acquisition of the McDonald' s Exchange
Parcel, Agency contemplates constructing and maintaining
certain public parking facilities on the McDonald's Exchange
Parcel as provided herein.
2.15 Owner Participant. The term "Owner Participant"
shall have the meaning given to it in the Redevelopment Plan,
Agency's adopted rules and regulations governing the
participation by owners in redevelopment of their properties,
and the California Community Redevelopment Law (Health &
Safety Code Section 33000, gt seg. ) .
2.16 Parking Structure Parcel. The term "Parking
Structure Parcel" shall mean that certain real property
adjacent to the Site, more particularly described in Exhibit
"C" attached hereto, a portion of which Participant has
agreed to sell to Agency pursuant to the Sale Agreement, and
upon which Agency contemplates construction and maintenance
of certain public parking facilities as provided herein.
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2.17 Participant. The term "Participant" shall mean
Steven Peck, as Trustee of the Steven Peck Inter Vivos Trust,
whose address for purposes of this Agreement is 501
Westchester Place, Fullerton, California 92632, and any
legally permissible assignee or successor to the rights,
powers, and responsibilities of Steven Peck hereunder.
2.18 Proiect. The term "Project" shall mean the
construction upon the Site of a new restaurant to be named
Angelo's 6 Vinci 's Cafe and other commercial uses, with not
to exceed 18,000 square feet of total building area. Said
restaurant and other commercial uses shall be constructed in
accordance with the approved Development Project Plans and
the Final Building Plans to be approved in accordance with
this Agreement.
2. 19 Proiect Certificate of Completion. The term
"Project Certificate of Completion" shall mean that certifi-
cate issued by Agency to Participant upon written request by
Participant and upon satisfactory completion of the Project.
The Project Certificate of Completion shall be in a form so
as to permit recordation in the Office of the Recorder of the
County of Orange.
2.20 Public Parkins Covenant Termination Date. The
"Public Parking Covenant Termination Date" shall have the
meaning ascribed in Section 6.2.1.
2. 21 Redevelopment Plan. The term "Redevelopment
Plan" shall mean the Redevelopment Plan for the Central
Fullerton Redevelopment Project Area, which was adopted by
Ordinance No. 2008 of the City Council of City on December
17, 1974, as amended by Ordinance No. 2597 on December 2,
1986. The Redevelopment Plan is incorporated herein by this
reference and made a part hereof as though fully set forth
herein.
2. 22 Redevelopment Plan Expiration Date. The term
"Redevelopment Plan Expiration Date" shall mean November 26,
2019 .
2.23 Sale Agreement. The term "Sale Agreement" shall
mean that Agreement of Purchase and Sale of Real Property and
Joint Escrow Instructions concurrently executed by Agency and
Participant and Jupiter Meadows Enterprises, Inc. relating to
the sale by participant and Jupiter Meadows Enterprises,
Inc. , to Agency of the Ellis Place Parking Parcel, a portion
of the Parking Structure Parcel, and certain real property
(the "Strip") described therein.
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2.24 Schedule of Performance. The term "Schedule of
Performance" shall mean that schedule attached hereto as
Exhibit "E" .
2.25 Site. The term "Site" shall mean that certain
real property consisting of approximately 10,998 square feet
of net land area (exclusive of existing dedicated rights-of-
way and the grant of easement(s) to be made pursuant to
Section 4.1.12 herein and the approved Development Project
Plans) , more particularly described in Exhibit "A" and
depicted on the Site Map.
2. 26 Site Man. The term "Site Map" shall mean the map
attached hereto as Exhibit "B" .
SECTION 3 . PARTICIPANT REPRESENTATIONS AND WARRANTIES.
Participant hereby makes the following representations,
covenants, and warranties for the benefit of Agency, and
Agency's successors and assigns, and acknowledges that the
execution of this Agreement by Agency has been made, in
MATERIAL reliance by Agency on such representations and war-
ranties:
3.1 Participant Ownership of the Site. As of the
Effective Date, Participant represents that Participant is
owner of fee title to the Site.
3.2 Litigation. To Participant's knowledge, there
are no pending or threatened claims, allocations, or lawsuits
of any kind, whether for personal injury, property damage,
landlord-tenant disputes, property taxes, or otherwise, that
could adversely affect the operation or value of the Site,
nor is there any governmental investigation of any type or
nature, pending or threatened, against or relating to the
Site or the transactions contemplated hereby (other than
those conducted by City and Agency) .
3.3 No Default. The execution and delivery of this
Agreement will not constitute or result in any default or
event that with notice or the lapse of time, or both, would
be a default, breach, or violation of any lease, mortgage,
deed of trust, or other agreement, instrument or arrangement
by which Participant or the Site are bound or any event which
would permit any party to terminate an agreement or
accelerate the maturity of any indebtedness or other
obligation.
3.4 No Violation. Subject to the City' s approval of
off-site parking for the Site as contemplated by this
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Agreement, to Participant's knowledge, the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby will not violate any
provision of, or require any consent, authorization, or
approval under, any law or administrative regulation or any
other order, award, judgment, writ, injunction, or decree
applicable to, or any governmental permit or license issued
to, Participant relating to the Site.
3.5 Hazardous Substances. Participant has received
no notice of and has no knowledge of any Hazardous Substances
(as hereinafter defined) on any part of the Site nor does
Participant have any knowledge of any on-site spills,
releases, discharges, or disposal of Hazardous Substances
which have occurred on the Site during Participant 's
ownership thereof, or are presently occurring, on any of the
Site.
3.6 No Possessory Interests. Participant has the
right of possession of the Site on the scheduled date of
commencement of construction of the Project, free from any
tenant leases, tenancies, licenses, or other similar
occupancy agreements that could interfere with Participant's
right to develop the Project.
3.7 No Bankruptcy. Participant has not filed or been
the subject of any filing of a Petition under the Federal
Bankruptcy Law or any insolvency laws, or any laws for the
discharge of indebtedness or for the reorganization of
debtors.
3.8 No Misrepresentation. No representation,
warranty, or covenant of Participant in this Agreement, or in
any document or certificate furnished or to be furnished to
Agency pursuant to this Agreement, contains or will contain
any untrue statement of a material fact or omits or will omit
to state a material fact necessary to make the statements
contained herein or therein not misleading.
3 . 9 Disclosure. Participant has disclosed all infor-
mation concerning the Site of which Participant is aware
which may materially affect the value of the Site and/or
Participant's continued ability to utilize the Site as
provided in this Agreement .
3.10 Due Execution. This Agreement has been duly exe-
cuted by Participant and constitutes a valid, binding, and
enforceable obligation of Participant.
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3.11 Ng Extraneous Consideration. Other than the
concurrent sale by Participant and Participant's corporation
to Agency of the Ellis Place Parking Parcel, a portion of the
Parking Structure Parcel, and certain other real property
(the "Strip") , as described in the Sale Agreement,
Participant warrants that it has not paid or given to, and
will not pay or give to, the Agency or City or any official
or agent of the Agency or City any money or other
consideration for obtaining this Agreement, except as
expressly provided herein.
SECTION 4. PARTICIPANT'S COVENANTS.
4.1 Development of the Site.
4.1 . 1 Development in Accordance with Plans.
Provided the City issues a building permit in accordance
therewith, Participant shall develop the Project in
accordance with the approved Development Project Plans and
the Final Building Plans to be approved in accordance with
Section 4.1. 2 herein, including any changes thereto as may be
subsequently approved in writing by both Participant and
City/Agency. Notwithstanding the foregoing, Participant
shall have no obligation to develop the Project unless it
obtains a building permit therefor from the City, the
required governmental approvals to develop and operate the
Project, and the Agency covenants parking for the Site and
the Project as provided in this Agreement.
4 .1.2 Development Prosect Plans. On or
before the Effective Date of this Agreement, Participant has
prepared and submitted to City and Agency for their approval
the Development Project Plans and City and Agency have
approved the same.
4.1. 3 final Building Plans. Participant
shall submit to City for City's review and approval a
complete set of Final Building Plans within the time set
forth in the Schedule of Performance. The Final Building
Plans shall be consistent with applicable code requirements
and the approved Development Project Plans and shall be
sufficient to obtain all necessary building permits required
for the Project. Participant shall exercise reasonable
diligence to obtain City' s approval of the Final Building
Plans. In the event City requires any modifications or
changes to the proposed Final Building Plans to meet
applicable code requirements or to conform to the terms of
the approved Development Project Plans, Participant shall
make the necessary changes with reasonable diligence and
resubmit them to City.
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4.1.4 Architect and Structural Encineer.
Agency's Executive Director has previously approved the
architect and structural engineer selected by Participant for
the Project. if Participant desires to utilize any other
architect or structural engineer on the Project at any time
prior to Agency's issuance of its Project Certificate of
Completion, Participant shall obtain the approval of Agency's
Executive Director for the change.
4.1. 5 Evidence of Financial Capability.
Within the time set forth in the Schedule of Performance,
Participant shall submit to Executive Director Participant's
Evidence of Financial Capability. The Evidence of Financial
Capability shall demonstrate to Executive Director, in his
reasonable discretion, that Participant has the financial
resources and commitments necessary for the development of
the Project in accordance with this Agreement.
4.1.6 Other Governmental Pgrmits. Partici-
pant shall, at his own expense and before commencement of
construction, rehabilitation, restoration, revitalization, or
development of any buildings, structures, or other work of
improvement upon the Site, secure or cause to be secured any
and all permits and approvals which may be required by City
or any other governmental agency affected by such construc-
tion, development or work, including but not limited to
necessary building permits and all approvals required under
CEQA.
4 .1.7 Cost of Construction. Participant
shall bear all costs of preparing and developing the Project
and constructing all improvements on the Site, including but
not limited to any and all costs for demolition and clearance
of existing surface and sub-surface improvements inconsistent
with the Project, architectural and engineering plans,
preparation of the Site, costs associated with meeting
applicable seismic standards, interim and permanent financ-
ing, broker ' s and leasing commissions, and fees or charges
for development and building. Participant shall be
responsible to install and maintain a temporary water line to
keep his existing restaurant in service during the course of
construction of the Project.
4.1.8 Construction Schedule. Subject to
delay occasioned by the City and/or the Agency and force
majeure, Participant shall commence and complete construction
of the Project within the times set forth in the Schedule of
Performance. Once construction is commenced, Participant
shall diligently pursue such construction to completion, and
Participant shall not abandon such construction for more than
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five (5) consecutive days, except when due to an event of
Force Majeure.
4.1.9 Liability Insurance. Prior to the com-
mencement of any construction by Participant on the Site,
Participant shall furnish or cause to be furnished to Agency
duplicate originals or appropriate certificates of bodily
injury and property damage insurance policies in the amount
of at least one Million Dollars ($1,000,000. 00) for death or
injury to any person, Two Million Dollars ($2,000,000.00) for
any occurrence, and Five Hundred Thousand Dollars
($500,000 .00) for property damage, naming the Participant,
City, and Agency as additional insureds or co-insureds. All
such insurance: ( i) shall be primary insurance and not
contributory to or with any insurance maintained by City or
Agency; ( ii) shall be with a carrier reasonably approved by
Agency; and (iii) shall provide that the policy will not be
cancelled or modified by the insurer or Participant unless
there is a minimum of thirty ( 30) days' prior written notice
to City and Agency. None of the above described policies
shall require Participant to meet a deductible or self-
insured retention amount of more than Ten Thousand Dollars
($10,000.00) (which amount shall be permitted to increase at
a rate not to exceed the percentage increase in the Consumer
Price Index after the Effective Date) unless approved in
writing by 'Executive Director in his or her sole and absolute
discretion.
4.1.10 Casualty Insurance. From the date of
issuance of the Project Certificate of Completion until the
Redevelopment Plan Expiration Date, Participant shall
maintain and shall furnish or cause to be furnished to Agency
duplicate originals or appropriate certificates of fire and
extended coverage insurance policies including coverage for
not less than ninety percent (90%) replacement value of the
Project and not more than a $10,000 deductible or self-
insured retention (which amount shall be permitted to
increase at a rate not to exceed the percentage increase in
the Consumer Price Index after the Effective Date) . All such
insurance policies shall provide that the policy will not be
cancelled or modified by the Insurer or Participant unless
there is a minimum of thirty (30) days' prior written notice
to City and Agency. In the event of total or partial
destruction of the Project due to a cause for which Partici-
pant is, or is required to be, covered by insurance, and
subject to compliance with then-applicable building code
requirements (but excluding any changed parking requirements)
and the rights of any lender, Participant shall utilize the
proceeds of such insurance and other necessary funds to
restore the Project and the related on-site improvements and
landscaping to substantially the same condition they were in
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immediately prior to such destruction. Participant shall
commence reconstruction as soon as reasonably practicable and
shall diligently pursue such reconstruction to completion.
4.1.11 Workers ' Compensation Insurance.
Participant shall furnish, or cause to be furnished, to
Agency evidence reasonably satisfactory to Agency that any
contractor with whom Participant has contracted for the
performance of work on the Site carries appropriate workers'
compensation insurance as required by law.
4. 1.12 Easements. Participant shall grant to
Agency and City all necessary and appropriate easements for
development of public improvements consistent with the
approved plans for the Project and which do not interfere
with operation of the Project on the Site, including but not
limited to streets, rights of vehicular access, sidewalks,
sewers, storm drains, and water improvements.
4.1.13 Rights of Access. Participant shall
grant to Agency and its agents, employees or designees, the
reasonable right of access to the Site, without charges or
fees, at normal construction hours during the period of con-
struction of the Project for any and all reasonable purposes.
4.1.14 Applicable Laws. Participant shall
construct the Project in conformity with all applicable laws,
including all applicable Federal and State labor laws.
4.1.15 Prohibition Against Transfer. Except
as provided below, prior to the date Agency issues, or is
required to issue, the Project Certificate of Completion,
Participant shall not transfer or encumber the Site or any
portion thereof or assign any of its rights or obligations
under this Agreement without the prior written consent of
Agency. Notwithstanding the foregoing, at any time, Partici-
pant may transfer all or any portion of its rights in this
Agreement, the Site or the Project to the following:
(a) Any entity or entities owned or controlled
by Participant;
(b) Any partnership formed by Participant
pursuant to which Participant retains operational and
managerial control;
(c) Any person or entity receiving such rights
due to the death of Participant, pursuant to a testa-
mentary device, or through the incapacitation (physical
or mental) of Participant;
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•A
(d) Any trust for the benefit of Participant 's
spouse, child, grandchild, or other family member, or
for the benefit of a charitable purpose;
(e) Any entity providing a mortgage, deed of
trust, sale and leaseback, or other form of conveyance
required for any reasonable method of financing the
acquisition and development of the Site and the Project,
including all direct and indirect costs related thereto;
and
(f) City or any other appropriate governmental
agency for the formation of an assessment district, or
the granting of easements or permits to facilitate the
development of the Site.
Except for assignments made pursuant to Section
4.1.15(e) , no assignment shall be effective unless and until
the proposed assignee executes and delivers to Agency an
agreement, in form satisfactory to Agency's attorney,
assuming the obligations of Participant which have been
assigned. Thereafter, Participant shall be relieved of all
responsibility to Agency for performance of the obligations
assumed by the assignee; provided, however, that Participant
shall remain responsible for such obligations in the event of
any transfer pursuant to Sections 4.1.15(a) through
4.1.15(f) .
4 . 1.16 Antidiscrimination Durino Construction.
Participant, for itself and its successors and assigns,
agrees that during the construction of the Project, Partici-
pant will not discriminate against any employee or applicant
for employment because of race, color, creed, religion, sex,
marital status, ancestry, or national origin.
4.1.17 Antidiscrimination After Comoletion of
the Proiect. Participant covenants and agrees, for itself,
its successors, its assigns and every successor in interest
to the Site, or any part thereof, that it: (i) shall not
discriminate against any person, or group of persons, on
account of sex, race, color, creed, marital status, religion,
handicap, national origin, or ancestry in the enjoyment of
the Site; and (ii) shall not establish or permit any such
discriminatory practice or practices with reference to the
selection, location, number, use, or occupancy of tenants,
lessees, subtenants, sublessees, or vendees of the Site or
any portion thereof. The covenant in this Section 4. 1. 18
shall run with the land and shall remain in effect in
perpetuity.
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4.1.18 Antidiscrimination in Agreements.
Participant shall not restrict the rental, sale, or lease of
any portion of the Site on the basis of race, color, creed,
religion, sex, marital status, ancestry, or national origin
of any person. The covenants in this Section 4.1.18 shall
run with the land and shall remain in effect in perpetuity.
Any and all agreements relating to the rental, sale, or lease
of the Site, or any portion thereof, shall contain the
following nondiscrimination or nonsegregation clauses (or
clauses substantially similar thereto) :
4. 1.18. 1 Clause for 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 race, color, creed, religion,
sex, marital status, ancestry, or national origin in the
sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the land herein conveyed, nor shall the grantee
himself or herself, or any persona claiming under or through
him or her, establish or permit any such practice or prac-
tices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy of tenants,
lessees, subtenants, sublessees, or vendees in the land
herein conveyed. The foregoing covenants shall run with the
land."
4.1.18.2 Clause for 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 race, color, creed, religion, sex, marital status,
ancestry, or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of
the land 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 land herein leased. "
4. 1.18. 3 Clause for Contracts. "There
shall be no discrimination against or segregation of any
persons or group of persons on account of race, color , creed,
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religion, sex, marital status, ancestry, or national origin
in the sale, lease, transfer, use, occupancy, tenure, or
enjoyment of land, nor shall the transferee 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 selec-
tion, location, number, use, or occupancy of tenants,
lessees, subtenants, sublessees or vendees of land. "
4.1.19 Relocation Assistance. Participant
waives any claims that he, any entities owned or controlled
by him, and his successors and assigns may have to receive
relocation assistance or benefits arising out of the work to
be performed pursuant to this Agreement.
4.2 Use of Site.
4.2.1 No Inconsistent Uses. Participant
covenants and agrees, for itself, its successors, its
assigns, and every successor in interest to the Site, or any
part thereof, that for the period beginning on the Effective
Date and ending on the Redevelopment Plan Expiration Date,
Participant and such successors shall not devote the Site to
uses inconsistent with the Redevelopment Plan, the applicable
zoning restrictions, and the approved Project plans.
4.2. 2 First-Class Condition. Participant
covenants and agrees, for itself, its successors, its
assigns, and every successor in interest to the Site, or any
part thereof, that for the period beginning on the Effective
Date and ending on the Redevelopment Plan Expiration Date,
Participant and such successors shall maintain the Project
and all related on-site improvements and landscaping on the
Site in first class condition and repair (and, as to land-
scaping, in a healthy condition) and in accordance with the
approved Project plans and all other applicable laws, rules,
ordinances, orders, and regulations of all federal, state,
county, municipal, and other governmental agencies and bodies
having jurisdiction and all their respective departments,
bureaus, and officials. During such period, Participant and
such successors shall not permit any accumulation of weeds,
rubbish, or debris on the Site and Participant and such
successors shall not permit any unlawful use or public or
private nuisance to be maintained on the Site.
4. 3 Duration of Participant's Covenants. After
issuance of the Project Certificate of Completion, or the
accrual of the right to its issuance pursuant to Section
6.4.6, all of the terms, covenants, agreements, or conditions
set forth in this Section 4 shall cease and terminate, except
as follows:
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(a) Sections 4.1.7, 4.1.9, 4.1.10, 4.1.12,
4.1.19, 4.2.1, and 4. 2. 2 shall be binding upon
Participant until the Redevelopment Plan Expiration
Date.
(b) Sections 4.1.17 and 4.1. 18 shall be binding
upon Participant in perpetuity.
SECTION 5. AGENCY REPRESENTATIONS AND WARRANTIES.
Agency hereby represents and warrants for the benefit of
Participant, and Participant' s successors and assigns, that
the following facts are true as of the execution of this
Agreement:
5.1 No Approvals. No approvals or consents not here-
tofore obtained by Agency are necessary in connection with
the execution of this Agreement by Agency or with the
performance by Agency of Agency's obligations hereunder .
5.2 Due Execution. This Agreement has been duly exe-
cuted by Agency or its duly authorized officers or agents and
constitutes a valid, binding, and enforceable obligation of
Agency.
SECTION 6. AGENCY COVENANTS.
6.1 Agency Approvals.
6. 1.1 Plans. Agency shall approve or
disapprove of all the plans, drawings, and related documents
required to be submitted by Participant to Agency within the
time periods set forth in the Schedule of Performance.
6.1. 2 City Assistance. If Participant' s
Final Building Plans are acceptable to Agency and meet
applicable code requirements, Agency shall provide reasonable
assistance to Participant, at no expense to Agency, in ob-
taining City's approval of such Final Building Plans;
provided, however , Agency does not warrant or represent that
such approval shall be obtained.
6.1. 3 Evidence of Financial Capability.
Executive Director shall approve or disapprove Participant 's
Evidence of Financial Capability within the time period set
forth in the Schedule of Performance.
6.1. 4 Architect and/or_ Structural Engineer.
Agency has approved the Architect and/or Structural Engineer
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(or proposed replacement thereto) submitted by Participant to
Agency.
6.1. 5 Assionments . In considering whether it
will grant approval to any transfer or assignment by Partici-
pant pursuant to Section 4.1 . 15, Agency shall consider
factors such as: (i) the financial strength and capability of
the proposed assignee to perform Participant ' s obligations
hereunder; and (ii) the proposed assignee' s experience and
expertise in the planning, financing, development, ownership,
and operation of similar projects.
6.1 . 6 Project Certificate of Completion.
Upon written request by Participant, and upon satisfactory
completion of the Project, Agency shall issue to Participant
a Project Certificate of Completion. The Project Certificate
of Completion shall be, and shall so state, a conclusive
determination of satisfactory completion of the Project
required by this Agreement, and of full compliance with the
terms of this Agreement relating to commencement and comple-
tion of the Project. After the date Participant is entitled
to issuance of the Project Certificate of Completion, and
notwithstanding any other provision of this Agreement to the
contrary, any party then owning or thereafter purchasing,
leasing, or otherwise acquiring any interest in the property
covered by said Project Certificate of Completion shall not
(because of such ownership, purchase, lease, or acquisition)
incur any obligation or liability under this Agreement for
which the Project Certificate of Completion is issued, except
that such party shall be bound by the covenants that survive
issuance of the Project Certificate of Completion, as set
forth in Section 4. 3 hereof. If Agency refuses or fails to
furnish the Project Certificate of Completion for the reason
that specific items or materials for landscaping are not
available, Agency shall issue the Project Certificate of
Completion upon the posting by Participant with Agency of a
cash deposit or irrevocable letter of credit (in form
acceptable to Agency) in an amount representing the fair
value of the work not yet completed. The Project Certificate
of Completion is not a notice of completion as referred to in
California Civil Code Section 3093.
6.1.7 Standards of Review. Agency approval(s)
under this Section 6.1 shall not be unreasonably withheld,
conditioned, or delayed. Any disapproval by Agency shall
state in writing the reasons for disapproval and the changes
which Agency requests to be made. Such reasons and such
changes must be consistent with any items previously approved
hereunder.
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6.2 Parking and Street and Parkway Improvements.
6. 2.1 Construction of Public Parking Facili-
ties and Street and Parkway Imorovements. Upon Agency' s
acquisition of the Ellis Place Parking Parcel and
Participant 's interest in the Parking Structure Parcel
pursuant to the separate Sale Agreement being entered into by
and between Agency, Participant, and Participant ' s
corporation concurrently with this Agreement, Agency, at no
expense to Participant and without cost or assessment against
the Site or the Project, shall diligently commence and
complete construction of: ( i) a minimum 32-space surface
parking lot on the Ellis Place Parking Parcel; ( ii) a
temporary surface parking lot on the Parking Structure Parcel
with a minimum of 110 parking spaces; and (iii) street and
parkway improvements on the south side of Ellis Place from
Harbor Boulevard to the Parking Structure Parcel. In
addition, contingent upon Agency's acquisition of the
McDonald' s Exchange Parcel, Agency shall exercise reasonable
diligence to commence and complete construction of an
additional surface parking lot with a minimum of 30 spaces on
said parcel. All such parking shall be developed within the
times set forth in the Schedule of Performance. Subject to
Section 6. 2 . 2 herein and the balance of this Section 6. 2. 1,
once constructed, such parking spaces shall be regularly and
conveniently available to the public generally, including
customers and invitees of Participant's restaurant and
Project, until the earliest of the following dates (the
"Public Parking Covenant Termination Date" ) : ( i ) five ( 5)
years after the date that the building to be constructed by
Participant on the Site (as the same may be repaired,
improved, reconstructed, or replaced from time to time) is
demolished and cleared from the Site and construction has not
commenced on a new or replacement building; or (ii) five ( 5)
years after the date that the business(es) on the Site
is(are) discontinued and no new business(es) is(are) opened;
or ( iii) fifty (50) years after the date the Project
Certificate of Completion is issued. The parking spaces
shall be public spaces, available to, but not reserved
exclusively for , the use of Participant, its successors and
invitees as to the Site until the aforesaid date. Agency and
City shall retain full regulatory authority over all parking
spaces, including but not limited to hours of operation,
maximum time limits , fees, and charges, allocation of spaces
to comply with applicable laws, rules, and regulations (such
as laws requiring spaces for handicapped parking) , and
temporary removal of spaces for repair, alteration, mainte-
nance, and restriping, provided parking shall be provided on
nondiscriminatory terms to Participant, its successors and
invitees. Agency shall ensure that hourly parking restric-
tions will not be in effect during holidays and weekends for
-18-
the parking required to be constructed and maintained by
Agency pursuant to this Agreement and Agency shall exercise
reasonable diligence to cause the Traffic Commission and City
Council to ensure that hourly parking restrictions will not
be in effect during holidays and weekends for the public
parking lot east of Harbor Boulevard, south of Chapman Avenue
and west of Pomona Avenue. In addition, Agency shall have
the right to reconfigure the parking spaces, to construct
non-parking improvements on any of the properties on which
parking spaces are to be maintained, to transfer some or all
of the required minimum number of spaces from one property or
parcel to another property or parcel (and to transfer from
the transferor site to the transferee all or part of the
covenants and restrictions that would Dtherwise apply to the
transferor site) , and to replace some or all of the surface
parking spaces with a parking structure and/or subsurface
parking, provided that the required minimum number of 142
public parking spaces is maintained on a permanent basis
(excluding the period of construction or reconstruction) on
one or more of the properties subject to this Section 6.2.1.
6.2.2 Construction of Parking Structure. At
such time as the renovation of the Fox Theatre (Assessor ' s
Parcel No. 20 on the Assessor ' s Map, Book 29, Page 3 of the
Official Records of the County of Orange, California)
commences, Agency shall begin, and diligently prosecute to
completion, the construction of a parking structure on the
Parking Structure Parcel, which parking structure will accom-
modate at least 200 vehicles. When completed, parking spaces
in said parking structure shall replace the minimum number of
temporary at-grade spaces to be provided pursuant to Section
6.2.1 shall also be made available for the use of Partici-
pant, its successors, and invitees to the Site in the same
manner and for the same term as provided in Section 6.2.1
herein. During the period of construction of the Parking
Structure, Agency shall exercise its best efforts to provide
temporary public parking for Participant ' s restaurant (either
the existing restaurant located in the Fox Theater building
adjacent to the Site or the new restaurant to be located on
the Site) , at one or more of the following areas: (i ) the
west end of the Parking Structure Parcel; ( ii) the Ellis
Place Parking Parcel; and ( iii ) the McDonald ' s Exchange
Parcel.
6.2. 3 Parking Variances . Except as provided
in the next sentence herein, Agency covenants that, after the
Effective Date of this Agreement and for as long as the
Project continues to be maintained and continuously operated
in accordance with this Agreement, the Agency shall not grant
and the Agency warrants and represents that it shall cause
the City not to grant any variances or exemptions to other
-19-
lots or parcels within the block bounded by Harbor Boulevard,
Chapman Avenue, Pomona Avenue, and Ellis Place reducing the
number of off-street parking spaces required. Notwith-
standing the foregoing, Agency shall be permitted to grant
and to authorize the City to grant a variance of not more
than five (5) parking spaces in order to accommodate the
Agency's acquisition of the McDonald's Exchange Parcel.
6.3 indemnity. Agency shall indemnify, defend, and
hold Participant harmless from any damage caused or liability
arising out of its exercise of its rights pursuant to Section
4.1.13 (access to Site) .
6.4 Relocation ,Assistance. As between Agency and
Participant, and without intending to acknowledge any legal
liability to third parties, Agency agrees to be responsible
for, and to hold Participant harmless against, any third
party claims for relocation assistance or benefits that may
arise out of the work to be performed pursuant to this
Agreement.
6.5 Lease Extension. Upon the execution of this
Agreement, Agency shall exercise reasonable diligence in
attempting to obtain from Edward Lewis, Participant's
landlord at its existing restaurant location, an extension of
Participant's lease until February 14, 1992, and a propor-
tionate rental reduction for vacating the backstage area of
the Fox Theatre during its seismic rehabilitation. Nothing
in this Section 6. 5 shall make Agency liable to Participant
for the failure to obtain said extension or reduction in
rental.
6.6 Areas for Contractor Use. During the period of
construction of the Project, the rehabilitation of the Fox
Theatre, the construction of the temporary surface parking
lot on the Parking Structure Parcel, and the construction of
the parking structure on the Parking Structure Parcel, Agency
will exercise its best efforts to ensure that the following
areas are available for the use of the general and subcon-
tractors working on such projects: (i) Project contractors,
on the portion of Ellis Place immediately north of the
existing liquor store location; ( ii) theatre contractors, on
the McDonald' s Exchange Parcel (assuming that Agency has
acquired the same) and a portion of the Parking Structure
Parcel immediately to the east of the theatre; and ( iii)
parking structure contractors, on a portion of Ellis Place
along the north side of the Parking Structure Parcel.
6.7 Duration of Agency ' s Covenants. After issuance
of the Project Certificate of Completion, or the accrual of
the right to its issuance pursuant to Section 6. 1.6, all of
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the terms, covenants, agreements , or conditions set forth in
this Section 6 shall cease and terminate, except that
Sections 6. 2.1, 6. 2.2, 6. 2. 3, 6. 3, and 6.4, shall be binding
upon Agency until the Public Parking Covenant Termination
Date referenced in Section 6. 2.1 .
SECTION 7. DEFAULTS.
7.1 Participant Defaults. The occurrence of any one
or more of the following events shall constitute an Event of
Default by Participant hereunder :
7.1. 1 Participant fails to observe or perform
any term or provision of this Agreement and such failure is
not cured to Agency's reasonable satisfaction within thirty
( 30) days after Agency gives Participant written notice
identifying such failure; provided, if such default cannot be
cured within thirty ( 30) days even with the exercise of due
diligence, Participant shall not be deemed in default if it
commences to cure within such thirty (30) day period and
continues diligently to effect such cure.
7. 1. 2 Participant fails to timely obtain all
required permits and approvals for the Project which shall be
determined .in the sole and absolute discretion of Agency;
7.1. 3 Participant makes or delivers to Agency
any statement, report, financial statement, or certificate
that is not true or correct in any material respect;
7.1. 4 Participant applies for the appointment
of a receiver , trustee, or custodian for any of Participant ' s
assets;
7. 1. 5 Participant files a petition under any
section or chapter of the Bankruptcy Code or any similar law
or regulation;
7 . 1 .6 Participant makes an assignment for the
benefit of his creditors;
7 . 1.7 Subject to events of force maieure,
Participant ceases to conduct his business substantially as
now conducted (except for the period of time during the
relocation of the restaurant - not to exceed six (6) months) ;
7 .1.8 Participant is enjoined, restrained, or
in any way prevented by court order from conducting all or
any material part of his business affairs;
-21-
7 .1.9 A petition under any section or chapter
of the Bankruptcy Code or any similar law or regulation is
filed against Participant, and such injunction, restraint, or
petition is not dismissed within ninety (90) days after the
entry or filing thereof;
7 .1.10 A notice of lien, levy, or assessment
is filed of record with respect to all or any of
Participant 's assets by the United States, or any department,
agency or instrumentality thereof, or by any state, county,
municipal, or other governmental agency, or if any taxes or
debts owing at any time hereafter to any one of these becomes
a lien or encumbrance upon any of Borrower 's assets or the
Site and the same is not released within ninety (90) days
after the same becomes a lien or encumbrance; provided that
Participant shall have the right to contest in good faith and
by appropriate proceedings any such lien, levy or assessment
if Participant provides Agency with a bond or indemnity
satisfactory to Agency assuring the payment of such lien,
levy, or assessment;
7.1. 11 Participant becomes insolvent or admits
in writing his inability to pay its debts as they mature; or
7 .1.12 Any of Participant 's representations
and warranties set forth in Section 3 of this Agreement is
untrue or materially misleading.
7 . 2 Agency Defaults. The occurrence of any one or
more of the following events shall constitute an Event of
Default by Agency hereunder:
7 .2. 1 Agency fails to observe or perform any
term of provision of this Agreement and such failure is not
cured to Participant's reasonable satisfaction within thirty
(30) days after Participant gives Agency written notice
identifying such failure;
7 . 2 . 2 Agency makes or delivers to Participant
any statement, report, or certificate that is not true or
correct in any material respect; or
7. 2. 3 Any of Agency's representations and
warranties set forth in Section 5 of this Agreement are
untrue or materially misleading.
7. 3 Notice of Default. The lion-defaulting party
shal). give written notice of any default in this Section 7 to
the defaulting party, clearly specifying the default. Copies
of any notice of default given to the defaulting party shall
also be given to any permitted lender requesting such notice.
-22-
Except as required to protect against further damages, and
subject to applicable cure periods, the non-defaulting party
may not institute proceedings against the defaulting party
until thirty ( 30) days after giving such notice. Any failure
or delay in giving such notice or in asserting any of either
party's rights and remedies as to any default shall not
constitute a waiver of any default, nor shall it change the
time of default, nor shall it deprive either party of its
rights to institute and maintain any actions or proceedings
which it may deem necessary to protect, assert or enforce any
such rights or remedies.
SECTION S. REMEDIES.
In addition to any other rights or remedies set forth in
this Section 8, either party may institute legal action to
cure, correct, or remedy any default, to recover damages for
any default, or to obtain specific performance and any other
remedy consistent with the purposes of this Agreement. Such
legal actions must be instituted and maintained in the
Superior Court of the County of Orange, State of California,
or in any other appropriate court in that county.
8. 1 Participant Remedies .
8.1.1 Damages. Subject to any applicable
cure periods and the general right to notice provided for in
this Agreement, upon a default or breach of this Agreement by
Agency, Participant may bring an action for damages proxi-
mately caused thereby.
8.1. 2 Specific Performance. Subject to any
applicable cure periods and the general right to notice
provided for in this Agreement, upon a default or breach of
this Agreement by Agency, Participant may bring an action for
specific performance of this Agreement or any term or
provision hereof.
8.1. 3 Right to Terminate. In the event that,
prior to Participant 's commencement of construction of the
Project, Participant is not in default under this Agreement
and: (i) Agency commits a material default hereunder and
fails to cure such default within the time provided in
Sections 7.2. 1 and 7. 3; or ( ii ) Participant is unable, after
and despite its exercise of best efforts, to timely obtain
all required governmental approvals for development and
operation of the Project; or (iii ) Participant provides
evidence reasonably satisfactory to Agency' s Executive
Director that the City or other governmental agencies with
jurisdiction over the Site and the Project have imposed
-23-
changes and corrections on Participant ' s Final Building Plans
( in addition to those of which Participant has been notified
as of May 29, 1991) with a cumulative cost in excess of One
Hundred Thousand Dollars ($100 ,000.00) ; then, in such event,
Participant may deliver a thirty (30) day written notice of
termination to Agency and, as to clauses ( i) and (ii ) , if the
applicable default or condition has not been satisfied (or
waived by Par=icipant) within said time period, this
Agreement shall terminate and neither party shall have any
further rights against or liabilities to the other (except
Participant reserves its rights under Section 8.1 .1 if Agency
is in default) .
8. 2 Agency Remedies .
8. 2. 1 Performance by Agency. In the event
that Participant breaches any of the covenants contained in
Section 4 . 2. 2 relating to the failure of Participant to
appropriately maintain and preserve the improvements on
landscaped areas located on the Site, then Agency, in
addition to whatever other remedy it may have hereunder or at
law or in equity, shall have the right to enter upon the
Site and perform or cause to be performed all such acts and
work reasonably necessary to cure the default and perform all
acts and work reasonably necessary to preserve and maintain
the improvements and landscaped areas on the Site. In the
event that Agency shall perform any such work, Agency shall
have the right to attach a lien on the Site, or to assess the
Site, in the amount of the expenditures arising from such
work. The costs of such work, including a fifteen percent
(158) administrative charge, shall be promptly paid by
Participant to Agency upon demand.
8. 2. 2 Damages. Subject to any applicable
cure periods and the general right to notice provided for in
this Agreement, upon a default or breach of this Agreement by
Participant, Agency may bring an action for damages proxi-
mately caused thereby.
8 . 2. 3 Specific Performance. Subject to any
applicable cure periods and the general right to notice
provided for in this Agreement, upon a default or breach of
this Agreement by Participant , Agency may bring an action for
specific performance of this Agreement or any term or
provision hereof.
8. 2. 4 Right to Terminate. In the event that,
prior to Participant' s commencement of construction of the
Project , Agency is not in default under this Agreement and:
(i ) Participant commits a material default hereunder and
fails to cure such default within the time provided in
-24-
Sections 7.1.1 and 7.3; or ( ii) Participant fails to obtain
any of the required approvals for the Project referenced
herein; then, in such event, Agency may deliver a thirty ( 30)
day written notice of termination to Participant and, if the
applicable default or condition has not been satisfied (or
waived by Agency) within said time period, this Agreement
shall terminate and neither party shall have any further
rights against or liabilities to the other (except Agency
reserves its rights under Section 8.2 .2 if Participant is in
default) .
8.3 Rights. and Remedies are Cumulative. Except as
otherwise expressly stated in this Agreement, the rights and
remedies of the parties hereto are cumulative, and the
exercise by any party of one or more of its 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 another party.
SECTION 9. GgNERAL PROVISIONS.
9.1 Covenants Run With The Land. All covenants,
conditions, restrictions, representations, reservations,
rights, interests , and privileges created by this Agreement
shall be appurtenant to, for the benefit of, and shall run
with the land and each part thereof and interest therein, and
shall be binding upon and a burden against the Site,
Participant, and its successors and assigns acquiring any
right, title, or interest in the Site, and upon and against
the Parking Lot Parcel, Agency and its successors and assigns
acquiring any right, title or interest in the Parking Lot
Parcel.
9.2 Governing Law. The laws of the State of
California shall govern the interpretation and enforcement of
this Agreement.
9.3 Attorney' s Fees. In the event of litigation
between the parties arising out of this Agreement, the
prevailing party shall be entitled to recover its reasonable
attorneys ' fees and other costs and expenses incurred in
addition to whatever other relief to which it may be
entitled.
9.4 Notices. Demands, and communications Between the
Parties. Formal notices, demands, and communications between
Agency and Participant shall be sufficiently given if: (i)
personally delivered; (ii) delivered by overnight courier
(acknowledged by receipt) ; or (iii) dispatched by registered
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or certified mail, postage prepaid, return receipt requested,
to the addresses set forth below:
If to Participant: STEVEN PECK, as Trustee of the
Steven Peck Inter Vivos Trust
501 Westchester Place
Fullerton, CA 92632
With a copy to: Mitchell, Silberberg & Knupp
11377 W. Olympic Boulevard
Los Angeles, CA 90064
Attn: Marvin Leon, Esq.
If to Agency: FULLERTON REDEVELOPMENT AGENCY
303 West Commonwealth Avenue
Fullerton, CA 92632
Attn: Executive Director
With a copy to: Rutan & Tucker
611 Anton Blvd. , Suite 1400
Costa Mesa, CA 92626
Attn: Jeffrey M. Oderman, Esq.
All notices shall be deemed to be received as of the earlier
of actual receipt by the addressee thereof or the expiration
of forty-eight (48) hours after depositing in the United
States Postal System in the manner described in this Section.
9. 5 AcceRtance of Service of Process. In the event
that any legal action is commenced by Participant against
Agency, service of process on Agency shall be made by
personal service upon Executive Director or the Secretary of
Agency, or in such other manner as may be provided by law.
In the event that any legal action is commenced by Agency
against Participant, service of process on Participant shall
be made by personal service upon Participant or in such other
manner as may be provided by law, and shall be valid whether
made within or without the State of California.
9. 6 Conflicts of Interest . No member, official, or
employee of Agency shall have any personal interest, direct
or indirect, in this Agreement nor shall any such member,
official, or employee participate in any decision relating to
this Agreement which affects his personal interests or the
interests of any corporation, partnership, or association in
which he is, directly or indirectly, interested.
9.7 Nonliability of Agency Officials and Employees.
No member, official, employee, or consultant of Agency or
City shall be personally liable to Participant, or any
successor in interest of Participant, in the event of any
-26-
default or breach by Agency or for any amount which may
become due to Participant or to its successor, or on any
obligations under the terms of this Agreement.
9.8 inspection of _Books and Record@. Agency shall
have the right at all reasonable times to inspect the books
and records of Participant pertaining to the Site as perti-
nent to the purposes of this Agreement. Participant also has
the right at all reasonable times to inspect the books and
records of Agency pertaining to the Site as pertinent to the
purposes of the Agreement.
9. 9 Fair Meaning. This Agreement shall be construed
according to its fair meaning and as if prepared by each
respective party hereto.
9.10 Titles and Captions. Titles and captions are for
convenience only and shall not constitute a portion of this
Agreement.
9.11 Qgader. As used in this Agreement, masculine,
feminine or neuter gender and the singular or plural number
shall each be deemed to include the others wherever and
whenever the context so dictates.
9. 12 Modifications. Any alteration, change or
modification of or to this Agreement, in order to become
effective, shall be made by written instrument or endorsement
thereon and in each such instance executed on behalf of each
party hereto.
9.13 Merger of Prior Agreements and Understandingg.
With the exception of the Sale Agreement entered into by and
between Agency and Participant on or before the Effective
Date (which agreement addresses, inter alfa, Participant's
sale to Agency of the Parking Lot Parcel and a portion of the
property on which the parking structure is to be located) ,
this Agreement and all documents incorporated herein contain
the entire understanding among the parties hereto relating to
the transactions contemplated herein and all prior or
contemporaneous agreements, understandings, representations,
and statements, oral or written, are merged herein and shall
be of no further force or effect.
9.14 No Third Parties Benefited. This Agreement shall
create no other third party beneficiary rights or any other
rights in favor of any persons, firms or corporations This
Agreement is for the sole use and benefit of the parties
hereto and is not for the use or benefit of any other person
or entity.
-27-
9.15 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one and
the same instrument.
9.16 Severability. Wherever possible, each provision
of this Agreement shall be interpreted in such a manner as to
be effective and valid under applicable law. If, however,
any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement to be effective as of the date first written
above (the "Effective Date" ) .
FULLERTON REDEVELOPMENT AGENCY
( "Agency" )
By; W
v
Chairman
ATTEST:
mac/
Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER
By:
Jeffrey M. O erman, Esq.
Attorneys for the Fullerton
Redevelopment Agency
STEVEN PECK INTER VIV TRUST
( "Particip nt")
By:
eck,
-28-
9.15 Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original and .all of which together shall constitute one and
the same instrument.
9.16 Severability. Wherever possible, each provision
of this Agreement shall be interpreted in such a manner as to
be effective and valid under applicable law. If, however,
any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement to be effective as of the date first written
above (the "Effective Date" ) .
FULLERTON REDEVELOPMENT AGENCY
( "Agency")
By:
Chairman
ATTEST:
Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER
By: ,
J r y M O erman, Esq.
A t rneys for the Fullerton
Redevelopment Agency
STEVEN PECK INTER VIVOS TRUST
( "Participant" )
By:
Steven Peck, Trustee
-28-
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
TM North 100.00 tat of Lt 1 at the Central A649tlon L eM City at
fallsrta, 090047 of Camp. lasts of Oslitereta, on a may wearied is bean
7, POP& 7 004 l K N9aelisaa00 NSP, Seards at aid Stamp County,
ahitaefa. .
orolNalro alolrlou d.. Nara SOM tat, the South 1.00 tat and aha vase
10.00 tat thereat.
ALO EMOT O U1117209 all that parties 4*4 Nara+roatly K the
teltaviat Maertbad flat
N1010111N/ at the 94ac604tian at the South lies of ail North
10.00 bet Utah the Nat Use of ail Vast 10.00 Sa0i theles,
slant said South lies Somberly 11.00 bat be the =a MINI Or
N1onomi eMsa. 141 a """ 1W twaweterly to a pia It
8614 an lies of ahs Yat 10.00 tat distant •11M said Sat
1990 Swiderly 11.00 ba tree the POINT OF 311101110100 aid polar
hetet els poor or X1110.
ngnv=N TxUmw a re•aalviw "Scant sed rf t•st•aq for
pedestrir purposes along Berea wA ahrouth e90 South 5.00 tat of de
Garth 01.00 bat of Said W 1.
Page 1 of 1
EXHIBIT "A°
TO OWNER PARTICIPATION AGREEMENT
EXHIBIT 6
Site Map
NAAIdI t_ We
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N 111 ••
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POYONA- AKr4R - - _----
EXHIBIT "C"
LEGAL DESCRIPTION OF
PARKING STRUCTURE PARCEL
THE LAND REFERRED TO HEREIN IS 81TUATED IN THE STATE OF CALIFORNIA]
COUNTY OF ORANGE, CITY OF FULLERTON AND IB DESCRIBED AS FOLLONIS
PARCEL A
LOTS 2 AND 3 OF THE J. E. ELLIS' SUBDIVISION AS SHOWN ON A MAP
THEREOF RECORDED IN SOCK It PAGE 39p MISCELLANEOUS MAPt0 RECORDS
L
OF SAID ORAE COUNTY$
PARCEL B
THAT PORTION OF THE SOUTH 3 FEET OF ELLIS AVENUE ADJOINING LOTS
2 AND 3 ON THE NORTH AS VACATED AND ABANDONED BY RESOLUTION OF
THE BOARD OF TRUSTEES OF THE CITY OF FULLERTON ON SEPTEMBER 28o
19230 A CERTIFIED COPY OF NHICH RESOLUTION WAS RECDRDRD FiBRUARV
4. 19371 IN BOOK 9731 PAGE 1131 OFFICIAL RECORDSe IN THE OFFICE
OF THE COUNTY RECORDER OF SAID ORA14M COUNTY) AND RECORDED
SEPTEMBER 131 1939) IN BOOK 10129 PAOE' 2400 OFFICIAL RSCORDSO
IN THE OFFICE OF THE COUNTY RECORDER OF SAID ORANGE COUNTY.
PARCEL C�
THE FORTE RAW (SORTS 1/9) Of TEE EAST ULF (EAST 1/0 AND TEE
MOM 18 PRT 07 THE' SOOTS RALF (80UTE 1/9) OF TEE BAST RALF (EAST
1/9) OF LOT 9 OF CENTRAL ADDITION, BOOK 7 PAORS 7 AND $ OT
NI80ELLANNOOS NAPS REOORDED IN TEE OFFICE OP TEE COUNTY RECORDER
or sAry COUNTY.
EXCEPTING TEEREPRON TES NORTHERLY 97.00 FEET AS GRANTED TO THE
CITY Of FULLERTON BY DEED RECORDED AUGUST 18, 1919 IE BOOK 341
PAGE 309 OF DEEDS, REOORDS Of SAIij ORANGE COUNTY.
PARCEL D
THE FORTE RALF OF TEE WEST RALF OF LOT 9 OF CENTRAL ADDITION. AS
SHOWN ON A MAP RECORDED IN BOOK 7, PAGES 7 AMD S OF NI8CELLANE0U8
NAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXCEPTING TNEREPRON THE NORTHERLY 97.00 PEST AS GRANTED TO THE
CITY Of FULLERTOS BY DIED RECOROBD JULY 28, 1019 IN BOOK 941, PAGE
99 OF DEED$ RECORDS OF SAID ORANGE COUNTY,
Page 1 of 1
EXHIBIT "C"
TO OWNER PARTICIPATION AGREEMENT
EXHIBIT "D"
LEGAL DESCRIPTION OF
MCDONALD S EXCHANGE PARCEL
ALL TMAT OSRTAIN L M BITOATID IM alt BUTS Of CALI/ORM . COM Of
OBAMOS, CITY Of IUIimcm, DZICRIBID Af 10LLOV1:
fARCQ, t-
Tim W&BT CNN-MALS of silt VBIT ONI.w► z of TMt am on-MALS a LOT 1 Of
TRE "CENTRAL VWTIMP. A@ BMW OM A NW TNtREOf @W=0 W 3M 7. M=
7 AND f, NI@ LIANIW@ MALI, ncoRDt Of @AID =A,= COOMTY.
TMAICSfiliq
ERE"= Tm Vest 7 nn.
IARCXL 1:
A RICO Of VAT M I Me$ AMD SCiLIS OVZR TMS VW 7 ItfY Of TMs slam
ONS-NAil Of LOT 1 Of "=M& ADDITION`. AS IN= ON A 1W TN MM no=n
IM D00@: 7, FAM 7 AMD f, NIiCMJAM M We. MECODD@ W @AID ORAMI
COMM# @AID 110T Of WAY MOT TO ,►t YM TNs =XgIVs Wt Of Tit OVSQ Of
TIM AW" DISCRIBID Lin, DVT TO DL OItD IN O MNOM VI= O=W#
TAROSL 3:
TMS LUT Luz OF TMt an MALI Of TNS s00a sw 0f LOT 1, Of TMS •Cm a"
ADDITIOM•, A IMWM ON A NAI TSE=F DSCOSDtD IN BOON 70 MOfI 7 AND f Of
MZBCEUANtOOI NAW, IMMS Of SAID CBANCI COO V, IMMIs0 TMLRsf m TMt
USTERLY 15.00 RBI.
PARCCL A:
TMS Z"TIRLT 14.00 na Of TMs @WYMBILY 10.00 ftiT Of IAT 1 Of TMS J. S.
BIA"' VADIDI/ION AN BMW 0/ A NAI 2113 0f RIO=M IM BOOK B, MOs 55,
NIICtLLQUOUl ". 120O1H Of OSAMU OWMTY. CALIFORNIA.
Page I of 1
EXHIBIT "D"
TO OWNER PARTICIPATION AGREEMENT
EXHIBIT "E"
SCHEDULE OF PERFORMANCE
Item of Performance Time for Performance
1. Participant submits Develop- Prior to or concurrently
ment Project Plans with the OPA
2. Participant submits final Prior to Effective Date
building plans to City
3. Agency approves OPA, Concurently at the meeting
Development Project Plans, of June 4, 1991
and Purchase and Sale Agree-
ment with Steven Peck
4. Participant submits evidence Within 10 days after
of financial capability and Effective Date
required insurance coverage
5. Agency Executive Director Within 5 days after
approves evidence of finan- submittal
cial capability and insurance
6. Participant obtains building Within 15 days of
permits and comences con- Effective Date
struction of Project
7. Agency begins design for Within 30 days of
temporary parking on Item No. 6
Parking Structure Parcel
and for expansion of existing
parking lot on Ellis Place
Parking Parcel
8. Agency commences construction Construction on Parking
of temporary parking on Structure Parcel to
Parking Structure Parcel commence within 90 days
and expansion of existing of Item No. 7; construc-
parking lot on Ellis Place tion on Ellis Place
Parking Parcel Parking Parcel to commence
within 30 days after
Participant notifies Agency
that Participant has vacated
the building that Partici-
pant is authorized to occupy
on such parcel pursuant to
Section 8 of the Sale.
Agreement
Page 1 of 2
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
9. Agency completes construction As to each facility, within
of temporary parking on 60 days after commencement
Parking Structure Parcel of construction of such
and expansion of existing facility pursuant to Item
parking lot on Ellis Place No. 8
Parking Parcel
10. Agency completes construction In conjunction with
of parking structure on redevelopment of Fox
Parking Structure Parcel Theater property
11. Participant completes Within 210 days of Item
construction of Project No. 6
Page 2 of 2
EXHIBIT "E"
TO OWNER PARTICIPATION AGREEMENT
EXHIBIT "B"
ROPS 13-14B FINAL DETERMINATION LETTER
[Attached]
698/036753-0126
7057598.3.06/11/14 - g-
ANT O,
44,
IL i
W
IIII
{c DEPARTMENT OF EDMUND G. BROWN JR. • GOVERNOR
�9L/FCM1NIP F I N A N C E 91 S L STREET ■ SACRAMENTO CA ■ 952 14-3705 ■ WWW.00F.CA.00V
December 20, 2013 Revised
Ms. Ramona Castaneda, Fiscal Services Manager
City of Fullerton
303 West Commonwealth Avenue
Fullerton, CA 92832
Dear Ms. Castaneda:
Subject: Recognized Obligation Payment Schedule
This letter supersedes the California Department of Finance's (Finance) Recognized Obligation
Payment Schedule (ROPS) letter dated December 17, 2013. Pursuant to Health and Safety
Code (HSC) section 34177 (m), the City of Fullerton Successor Agency (Agency)submitted a
Recognized Obligation Payment Schedule (ROPS 13-14B)to Finance on September 30, 2013,
for the period of January through June 2014. Finance issued a ROPS determination letter on
November 14, 2013. Subsequently, the Agency requested a Meet and Confer session on one
or more of the items denied by Finance. The Meet and Confer session was held on
December 4, 2013.
Based on a review of additional information and documentation provided to Finance during the
Meet and Confer process, Finance has completed its review of the specific items being
disputed.
• Item Nos. 8 and 45— Steven Peck Owner Participation Agreement (OPA)totaling
$4,125,000. Finance no longer denies this item. Finance initially denied this item even
though it was approved for expenditure for the July through December 2013 period
(ROPS 13-14A) because according to the OPA, the Agency was required by the
Schedule of Performance to complete the construction of the parking structure in
conjunction with the renovation of the Fox Theatre. According to information provided to
Finance, the renovation of the theatre was completed on March 19, 2012; however, no
contracts to commence the construction of the parking structure have been created.
Additionally, allocating funds for unknown contingencies is not an allowable use of funds.
During the Meet and Confer process, the Agency provided additional documentation to
identify that the obligation is enforceable and the construction of the parking garage is
required to commence. According to Section 6.2.2 of the OPA, the Agency is required to
diligently prosecute to completion, the construction of a parking structure at such a time
as the renovation of the Fox Theatre commences. During the ROPS 13-14A period, the
Agency requested $1,562,000 in Redevelopment Property Tax Trust Fund (RPTTF)
funding; however, due to insufficient RPTTF funding, the item remained unfunded.
Therefore, Finance approves $4,125,000 in RPTTF funding this period.
Ms. Ramona Castaneda
December 20, 2013
Page 2
• Item No. 15 — State College Grade Separation Project in the amount of$1,000,000 in
unspent pre-2011 bond funds. Finance no longer denies this item. The Agency
originally requested reserve funding, but revised the funding request to bond proceeds
during the initial review. It was our initially understanding that this item was related to a
Memorandum of Understanding (MOU) dated June 22, 2011, that was executed
between the Agency, the City of Fullerton (City), California State University Fullerton
(CSUF), and Hope International University (HIU). The MOU states the total costs for the
preparation of the plan shall not exceed $900,000, and the parties agree to share the
costs equally (1/3 each or$300,000) amongst the City/Agency, CSUF, and HIU.
Therefore, the Agency is obligated at a cost not to exceed $150,000. However, during
the Meet and Confer process, the Agency clarified that the MOU is related to Item
No. 17, which Finance did not dispute in the ROPS 13-14B period to be funded from the
RPTTF as requested.
Item No. 15 is related to a Cooperative Agreement with the Orange County
Transportation Authority(OCTA) dated December 31, 2009. The Agency provided
documentation showing that they received their Finding of Completion on May 10, 2013,
and was approved to expend their pre-2011 unexpended bond proceeds. During the
ROPS 13-14A period, the Agency was approved to expend $4,400,000; however, the
Agency reported expending only $3,400,000. As such, the Agency is requesting
approval to expend the remaining bond funds during the ROPS 13-14B period. Since
the Agency has met all requirements in HSC section 34191.4 and is approved to expend
the excess bond proceeds, Finance is approving the expenditure of the remaining
$1,000,000 in bond funds.
• Item No. 16— Project T Grant Match in the amount of$98,000. Finance continues to
deny this item. Finance denied this item as these contracts are between the City and
various third-parties; the former redevelopment agency (RDA) is neither a party to the
contract nor responsible for payment of the contract. During the Meet and Confer
process, the Agency did not provide any additional documents showing that the former
RDA had a responsibility to pay for this item. Therefore, this line item is not an
enforceable obligation and is not eligible for RPTTF funding.
• Item No. 18 — Downtown Core & Corridors Specific Plan in the amount of$1,321,860.
Finance continues to deny this item. Finance denied the items as the contract is
between the City and a third-party and the former RDA is not a parry to the contract.
The Agency stated the former RDA committed funds for the City's project per the City
and RDA Cooperation Agreement dated January 25, 2011. However, HSC section
34171 (d) (2) states that agreements, contracts, or arrangements between the city that
created the RDA and the former RDA are not enforceable, unless issued within two
years of the RDA creation date or for issuance of indebtedness to third-party investors or
bondholders. During the Meet and Confer process, the Agency did not provide any
additional documents showing that the former RDA had a responsibility to pay for this
item. Therefore, this line item is not an enforceable obligation and is not eligible for
RPTTF funding.
• Item Nos. 19 and 20 — City and former RDA Cooperation Agreements dated
January 29, 2011, and June 7, 2011, totaling $15,500,000. Finance continues to deny
these items. The Agency contends the cooperation agreements committed the RDA to
fund the related capital improvement projects. However, Finance denied these items as
Ms. Ramona Castaneda
December 20, 2013
Page 3
HSC section 34171 (d) (2) states that agreements, contracts, or arrangements between
the city that created the RDA and the former RDA are not enforceable, unless issued
within two years of the RDA creation date or for issuance of indebtedness to third-party
investors or bondholders. During the Meet and Confer process, the Agency did not
provide any additional documents showing that an enforceable obligation existed prior to
June 27, 2011. Therefore, these line items are not enforceable obligations and are not
eligible for RPTTF funding
• Item Nos. 23 and 28-Affordable Housing Monitoring, Administration, and Reporting
contracts totaling $10,735,000. Finance continues to deny these items. Finance denied
these items as the City Housing Division assumed the housing functions. Upon the
transfer of the former RDA's housing functions to the new housing entity, HSC section
34176 requires that"all rights, powers, duties, obligations and housing assets...shall be
transferred" to the new housing entity. This transfer of"duties and obligations"
necessarily includes the transfer of administrative obligations; to the extent any continue
to be applicable. To conclude that such costs should be on-going enforceable
obligations of the successor agency could require a transfer of tax increment for life—
directly contrary to the wind down directive in ABx1-26/AB1484. Therefore, these items
are not enforceable obligations and are not eligible for RPTTF funding.
• Item No. 30—Capital Improvement Projects in the amount of$95,000. Finance
continues to deny this item. Finance originally denied this item because the contract is
between the City and Griffin Structures; the former RDA is not a party to the contract.
The Agency stated the City and RDA signed a cooperation agreement on
January 29, 2011 committing former RDA funding to the City agreement with Griffin
Structures, Inc. However, HSC section 34171(d) (2) states that agreements, contracts,
or arrangements between the city that created the RDA and the former RDA are not
enforceable, unless issued within two years of the RDA creation date or for issuance of
indebtedness to third-party investors or bondholders. During the Meet and Confer
process, the Agency did not provide any additional documents showing that an
enforceable obligation existed prior to June 27, 2011. Therefore, this line item is not an
enforceable obligation and is not eligible for RPTTF funding.
• Item Nos. 41 and 44—The Alexander (Affordable Housing Development) and associated
project management costs totaling $4,600,000 in unspent pre-2011 bond proceeds.
Finance no longer denies these items. Finance initially denied these items as
insufficient documentation was provided to support the amounts claimed. HSC section
34176 (a) (1) states if a city, county, or city and county elects to retain the authority to
perform housing functions previously performed by a RDA, all rights, powers, duties,
obligations, and housing assets shall be transferred to the city, county, or city and
county. Since the City Housing Division assumed the housing functions, the
administrative costs associated with these functions are the responsibility of the housing
successor. During the Meet and Confer process, the Agency provided documentation
showing that they received their Finding of Completion on May 10, 2013, and met all
requirements in HSC section 34191.4. Therefore, the Agency is approved to expend
pre-2011 housing bond proceeds in the amount of$4,600,000.
Pursuant to HSC section 34186 (a), successor agencies were required to report on the
ROPS 13-14B form the estimated obligations and actual payments (prior period adjustments)
associated with the January through June 2013 period. HSC section 34186 (a) also specifies
that the prior period adjustments self-reported by successor agencies are subject to audit by the
Ms. Ramona Castaneda
December 20, 2013
Page 4
county auditor-controller(CAC) and the State Controller. The amount of RPTTF approved in
the below table includes the prior period adjustment resulting from the CAC's audit of the
Agency's self-reported prior period adjustment.
Except for items denied in whole or in part as enforceable obligations or for items that have
been reclassified, Finance is not objecting to the remaining items listed on your ROPS 13-14B.
The Agency's maximum approved RPTTF distribution for the reporting period is $9,409,688 as
summarized below:
Approved RPTTF Distribution Amount
For the period of January through June 2014
Total RPTTF requested for non-administrative obligations 11,097,653
Total RPTTF requested for administrative obligations 360,000
Total RPTTF requested for obligations $ 11,457,653
Total RPTTF requested for non-administrative obligations 11,097,653
Denied Items
Item No. 16 (45,000)
Item No. 18 (330,465)
Item No. 19 (1,000,000)
Item No. 20 (500,000)
Item No. 23 (60,000)
Item No. 28 (65,000)
Item No. 30 47,500
2,047,965
Total RPTTF approved for non-administrative obligations 9,049,688
Total RPTTF approved for administrative obligations 360,000
Total RPTTF approved for obligations 9,409,688
ROPS III prior period adjustment
Total RPTTF approved for distribution $ 9,409,688
Pursuant to HSC section 34177 (I) (1) (E), agencies are required to use all available funding
sources prior to RPTTF for payment of enforceable obligations. Beginning with the
ROPS 13-14B period, Finance required successor agencies to identify fund balances for various
types of funds in its possession. During our ROPS 13-14B review, Finance requested financial
records to support the fund balances reported by the Agency; however, Finance was unable to
reconcile the financial records to the amounts reported. As a result, Finance will continue to
work with the Agency after the ROPS 13-14B review period to properly identify the Agency's
fund balances. If it is determined the Agency possesses fund balances that are available to pay
approved obligations, the Agency should request the use of these fund balances prior to
requesting RPTTF in ROPS 14-15A.
Please refer to the ROPS 13-146schedule that was used to calculate the approved RPTTF
amount:
http://www.dof.ca.gov/redevelopment/ROPS/ROPS 13-14B Forms by Successor Agency .
This is Finance's final determination related to the enforceable obligations reported on your
ROPS for January 1 through June 30, 2014.This determination applies only to items where
Ms. Ramona Castaneda
December 20, 2013
Page 5
funding was requested for the six month period. Finance's determination is effective for this time
period only and should not be conclusively relied upon for future periods. All items listed on a
future ROPS are subject to a subsequent review and may be denied even if it was or was not
denied on this ROPS or a preceding ROPS. The only exception is for those items that have
received a Final and Conclusive determination from Finance pursuant to HSC section
34177.5 (i). Finance's review of items that have received a Final and Conclusive determination
is limited to confirming the scheduled payments as required by the obligation.
The amount available from the RPTTF is the same as the amount of property tax increment that
was available prior to enactment of ABx1 26 and AB 1484. This amount is not and never was
an unlimited funding source. Therefore, as a practical matter, the ability to fund the items on the
ROPS with property tax is limited to the amount of funding available to the successor agency in
the RPTTF.
To the extent proceeds from bonds issued after December 31, 2010, exist and are not
encumbered by an enforceable obligation pursuant to HSC section 34171 (d),
HSC section 34191.4 (c)(2)(B) requires these proceeds be used to defease the bonds or to
purchase those same outstanding bonds on the open market for cancellation.
Please direct inquiries to Evelyn Suess, Dispute Resolution Supervisor, or Derk Symons,
Analyst, at (916) 445-1546.
Sincerely,
JUSTYN HOWARD
Assistant Program Budget Manager
cc: Mr. Charles Kovac, Project Manager, City of Fullerton
Mr. Frank Davies, Property Tax Manager, Orange County
California State Controller's Office
EXHIBIT "C"
SCOPE OF SERVICES
[Attached]
698/036753-0126
70515989 a06/I 1114 -19-
SCOPE OF SERVICES FOR ADMINISTRATION OF
TOTAL OPA FUNDING OBLIGATION
This SCOPE OF SERVICES FOR ADMINISTRATION OF TOTAL OPA FUNDING
OBLIGATION ("Scope of Services") is attached to and incorporated into that certain
Professional Services Agreement for Escrow Services Pursuant to Enforceable Obligation
("Agreement"). The Services to be provided by the Consultant shall be in accordance with the
following:
1. Administration of Covenants and Obligations re Bond Proceeds. Consultant agrees to
administer and distribute the funds received by the Successor Agency from the RPTTF (or
other funding source) and transferred to Consultant for the former RDA's (now Successor
Agency's) obligations in Section 6.2.2 of the OPA pursuant to this Scope of Services and the
Agreement.
2. General Escrow Services of Consultant. Consultant shall establish, open, administer,
manage, and close an escrow account (the "OPA Escrow Account") for the following events
as authorized by the Successor Agency (each, an "OPA Escrow Account Authorized Event"):
(a) Transfer from the Successor Agency to Consultant of funds from the RPTTF in
furtherance of the former RDA's (now Successor Agency's) obligation under Section 6.2.2
of the OPA; (b) Acquisition of any interest in real or personal property within or for use
within the Parking Structure Parcel or Parking Structure Project; (c) Advertisement or
solicitation of requests for proposals ("RFPs") or requests for qualifications ("RFQs") by the
Successor Agency or City for demolition, grading, construction, and other improvement
work in furtherance of the development of the Parking Structure Parcel for the Parking
Structure Project; (d) Demolition, grading, construction (including all pre-
development/design work and post-construction/punch-list work), or any improvement to any
or all of the Parking Structure Parcel and/or in furtherance of the development and
completion of the Parking Structure Project; (e) Disbursement of funds from the RPTTF to
any contractor or subcontractor awarded a contract to complete any work identified in
subparagraph (d) in this Paragraph 2; and (f) Any other event as may be established by the
Successor Agency from time to time in furtherance of the development of the Parking
Structure Project and satisfaction of the Successor Agency's obligations pursuant to Section
6.2.2 of the OPA. The OPA Escrow Account shall earn interest at the then prevailing rate of
interest earned on escrow accounts established for the acquisition of real property in the
Orange County, California market area.
3. General Procedure for Establishing and Opening Escrow Account. Prior to or upon an OPA
Escrow Account Authorized Event, Successor Agency shall deliver to Consultant notice
thereof (the "Notice of OPA Escrow Account Authorized Event"), identifying the OPA
Escrow Account Authorized Event and the anticipated amount of funds from the RPTTF to
be transferred from the Successor Agency to the OPA Escrow Account for the corresponding
OPA Escrow Account Authorized Event. No later than five (5) business days after delivery
of the Notice of OPA Escrow Account Authorized Event, Consultant shall establish and open
the OPA Escrow Account, shall deliver any additional escrow instructions for review and
approval by the Successor Agency (which approval shall be within the reasonable discretion
698/036]53-0126
705/598.3 a06/11/I4 -20-
of the Successor Agency), shall deliver to the Successor Agency the escrow account number
and any other unique identifying information for the OPA Escrow Account, and shall deliver
to the Successor Agency any other information that the Successor Agency deems necessary
or proper for the efficient administration of the OPA Escrow Account and the distribution of
funds from the RPTTF for payment of work completed in furtherance of the Parking
Structure Project. Upon delivery to the Successor Agency by Consultant of all information
set forth in the immediately preceding sentence, the Successor Agency shall transfer to the
OPA Escrow Account the ROPS 13-14B Approved RPTTF Funding Amount. Thereafter,
after the Successor Agency receives funds from the RPTTF in amounts up to the Total OPA
Funding Obligation Amount, the Successor Agency shall transfer those amounts to the OPA
Escrow Account. The Successor Agency may, but shall have no obligation to, transfer funds,
whether from the RPTTF or other funding source, to the OPA Escrow Account in excess of
the ROPS 13-14B Approved RPTTF Funding Amount, it being expressly understood and
agreed between the Parties that the receipt by Consultant of funds for the OPA Escrow
Account shall be contingent upon DOF approval of funds for the development of the Parking
Structure Project.
4. General Procedure for Administering and Managing Escrow Account; Escrow Fees;
Payments Thereof. Upon the opening of the OPA Escrow Account, Consultant shall
administer and manage the OPA Escrow Account with all diligence, duty, and care that is
consistent with industry practice and fiduciary obligations of escrow service providers in the
Orange County, California market area. Consultant shall monitor and track all RPTTF funds
and any other funds, including funds raised from interest, deposited and withdrawn from the
OPA Escrow Account. Consultant may charge a fee for the administration and management
of the OPA Escrow Account; provided, however, that any fees shall be payable only upon a
distribution of funds from the RPTTF (or other funding source approved by the Successor
Agency). In no event shall Consultant charge a fee that exceeds Consultant's generally
applicable fees for the servicing of an escrow for the acquisition of real property or
administration for draw of funds in furtherance of the construction of a public works project,
and in no event shall the aggregate amount of Consultant's fees, for all services rendered in
connection with the OPA Escrow Account, exceed the maximum total compensation that
Consultant may receive under this Agreement set forth in Section 3.3.1. Prior to the payment
of any fees for Consultant's services, the Successor Agency shall have the right to review and
approve the amount of those fees, which approval shall not be unreasonably withheld or
denied by the Successor Agency. Consultant's fees shall be paid from the source of funds as
identified by the Successor Agency, and, in the event the Successor Agency does not identify
any specific source of funds, all Consultant fees shall be paid according to the following:
(a) first, from interest earned on the OPA Escrow Account; (b) second, from funds from the
RPTTF approved by DOF as available for payment to Consultant for the OPA Escrow
Account; and (c) third, other funds as identified and approved by the Successor Agency.
5. General Procedure for Distribution of Funds from OPA Escrow Account. No RPTTF funds
or any other funds, including any interest earned, may be withdrawn, disbursed, or
distributed from the OPA Escrow Account unless and until the Successor Agency delivers
written notice to Consultant that a specified amount of funds are to be withdrawn, disbursed,
or distributed. The Successor Agency shall specify the amount of funds from the OPA
698/036753 0126
7057598.3 x06/11/14 -21
Escrow Account, the recipient (for example, a third party payee) of that amount of funds, and
any other information that is necessary or proper for the distribution of that amount of funds
from the OPA Escrow Account to pay for the corresponding work completed in furtherance
of the Parking Structure Project. Consultant expressly understands, and it is the intent of the
Parties, that certain OPA Escrow Account Authorized Events may involve installment
payments of funds that have been deposited into the OPA Escrow Account, and Consultant
expressly acknowledges and agrees that only the specified amount of funds may be
withdrawn, disbursed, or distributed as instructed by the Successor Agency notwithstanding
the fact that the OPA Escrow Account may have additional funds remaining after the
Successor Agency's written notice to withdraw, disburse, or distribute a specified amount.
The Successor Agency may instruct Consultant to distribute a specified amount of funds
from the OPA Escrow Account to a third party payee, such as a contractor or subcontracted
who has been awarded a contract by either the Successor Agency or City for specified work
in furtherance of the development of the Parking Structure Project. Consultant shall deliver
written notice to Successor Agency of any withdraw, disbursement, or distribution of funds
from the OPA Escrow Account no later than one (l) business day after said withdraw,
disbursement, or distribution.
6. General Procedure for Closing Escrow Account. Upon written notice delivered by the
Successor Agency to Consultant of the completion of the Parking Structure Project or receipt
of all funds from the RPTTF authorized by DOF to be used in furtherance of the Successor
Agency's obligations under Section 6.2.2 of the OPA, whichever date occurs first, Consultant
shall diligently proceed to close the OPA Escrow Account. Any and all funds remaining in
the OPA Escrow Account shall be transferred back to the Successor Agency or, upon the
Successor Agency's instruction, to a contractor or subcontractor or other third party. Any
closing fees shall be charged and payable in accordance with the payment of other Consultant
fees set forth in Paragraph 4 of this Scope of Services.
7. Additional Joint Escrow Instructions. In the event that the Successor Agency enters into a
purchase and sale agreement, public works agreement, or any other agreement or contract
with a third party that governs in whole or in part the payment to that third party with funds
that have been deposited into the OPA Escrow Account (each, a "third party agreement"),
Consultant shall be bound by the terms and conditions of the third party agreement to the
extent it provides for additional escrow instructions that are not directly inconsistent with the
terms and conditions of this Agreement. In the event that Consultant is unable to perform a
term or condition in a third party agreement because it directly conflicts with a term or
condition in this Agreement, Consultant shall notify the Successor Agency and the Successor
Agency and Consultant shall meet and confer to resolve the conflict. In the event that the
Successor Agency and Consultant are unable to resolve the conflict, the Parties shall engage
in binding arbitration pursuant to the general provisions adopted by the American Arbitration
Association at the time the dispute arises.
A. Successor Agency Executive Director/City Manager Authority. The Successor Agency's
Executive Director, or his or her designee, shall have the authority to administer the
Agreement on behalf of the Successor Agency, and the Executive Director, or his or her
designee, shall have the authority to approve on behalf of the Successor Agency any and all
698/036753 0126
70575983 n0N]1/14 -22-
items needing Successor Agency approval under the Agreement, including approval of
compensation to the Consultant for Services completed under the Agreement.
9. Definition of Terms. Capitalized terms not otherwise defined in this Scope of Services shall
have the same meaning ascribed to them in the Agreement.
- end -
698/036753-0126
70575983 aONI 1114 -23-
EXHIBIT "D"
SCHEDULE OF SERVICES
The general schedule for Consultant's performance of the Services shall be as set forth
in Paragraphs 3-6 of Exhibit "C" in the Scope of Services.
This Agreement shall be effective for the Term set forth in Section 3.1 .2.
The Term of this Agreement may be renewed pursuant to Section 3.1 .2.
698/036753-0126
7057598.3 a06/11/14 -24-
EXHIBIT "E"
COMPENSATION
Compensation to Consultant shall be as set forth below and shall comply with
Paragraphs 4 & 6 of Exhibit "C" in the Scope of Services:
• $750.00 flat fee per escrow deposit.
• $25.00 per check cut fee.
• Up to $10,000.00 for Fidelity Bond
698/036753-0126
7057598.3 u06/11/14 -25-
ASSIGNMENTAND ASSUMPTION AGREEMENT
THIS ASSIGNMENT' AND ASSUMPTION AGREEMENT (this "Assignment") is macre
and entered into and is cl'lective as of August 6, 2014 (the "effective date") by and between Gold
Country Escrow, Inc„ a California corporation, with its principal place of business at 18180
Yorba Linda Blvd., Suite 503, Yorba Linda, CA 92886 ("Assignor"), and Sunset One Escrow,
Inc., a California corporation, with its principal place of business al 29970 Technology Drive,
SIe.217, Murrieta, CA 92563 ("Assignec"), with reference to the following Recitals.
RECITALS
A. Assignor and the Fullerton Successor Agency, it public agency under Health and
Safety Code section 34173 ("Agency"), have entered into (flat certain Fullerlet Successor
Agency Professional Services Agreement for Escrow Services Pursuant to an Enforceable
Obligation dated as of January 1, 201 it (the ",ngrcemcnl").
B. Section 3.5.12 of the Agreement allows for the assignment of the Agreement and
section 3.5.21 allows the Agency's Execwivc Director to consent to such an assignment.
C. Assignor now desires to assign its right, title ,incl interest in, to and under the
Agreement to Assignee, and Assignee, desires to accept such assignment on, and subject to, the
terms anti conditions set forth in this Assignrnenl.
D. Agency, by executing the acknowledgement and consent attached to this
Assignment, approves of the assignment of the Agreement as provided herein.
Now, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which arc hereby acknowledged, the parries hereto agree as follows:
AGREEMENT
1 . AcsinenL Assignor hereby assigns, conveys, transfers and delivers to
Assignee all of Assignor's right, title and interest in and to (he Agreement, and Assignee hereby
accepts such assignment and agrees to assume performance of all terms, covenants air(]
conditions occurring or arising under the Agreement, subject to the terms and conditions in this
Assignnenl, on or after the date of this Assignment,
2. Assumption of Obligations. By acceptance of this Assignment, Assignee hereby
assumes and agrees to timely discharge, perform and to be bound by all of the liabilities, duties
and obligations imposed in connection with the Agreement from and alter the effective (late of
this Assignment to the same extent as if Assignee had been the original party and "Consultant"
under the Agreement, subject to the following exception:
a. Assignee will not be required to submit, as part of any invoice or
slaternent for payment under the Agreement, the hours of Services rendered by the
Assignee to the Agency, as set forth in section 3,3,2 of the Agreement. Assignees shall
still submit monthly itemized statements indicating (lie work completed by the Ass'LTec
for the applicable month and all other requirements required by the Agreement. t`
7707025 2 a012')r 1
3. 'Authority tc�_ Sigtl for in(] hind the parties Iierclo. The person signing, on behalf
of Assignor represents and w;urants that person has full authority to bind the Assignor to the
terms and conditions of this Assignment, and that all company, corporate, and other approvals
required to be obtained under Assignor's governing documents have been so obtained to bind the
Assignor, The person signing on behalf or Assignee represents and warrants that person has full
authority to bind the Assignee to the terms and conditions of this Assignment, and that all
company, corporate, and other approvals required to be obtained under Assignee's governing
documents have been so obtained to bind the Assignee. The persons signing for Assignor and
Assignee. respectively, each understand and acknowledge that the Successor Agency materially
relies on the representations and warranties set forth in this Section 3, and that any breach of any
such representation and warranty that exists as of the effective dale or, with lite passage of time,
comes to exist shall be a material breach of this Assignment and the Agreement, and the
Successor Agency shall have the right to seek any remedy at law or in equity for such n breach,
in addition to any other rights and remedies available under the Agreement.
4, L\ttorney's Fees. In the event any action or suit is brought by a party hereto
against another party by reason of any breach ol'any or the covenants, conditions, agreements or
provisions on the part of such other party arising out of this Assignment, tile prevailing party
shall be entitled to have ancf recover of and from any other party all costs and expenses or the
action or suit, including reasonable attorneys' Pecs.
S. Successors _nxl Assiuns. Subject to the assignment and Iransfer provisions of the
Agreement, this Assignment shall be binding upon and shall inure to the benclit of lhe. successors
and assigns of Ole respective: parties hereto.
6. Governing Law, This Assignment shall be governed by and construed in
accordance with the laws of the Slate of California without regard to conflict of law principles.
7. Further Assurances. The parties covenant and agree that they will execute such
other and Auther instruments and documents as are or may become necessary or convenient to
of iectuate and cnrry out this Assignment.
S. Counteortrts. This Assignment may be executed in any number of counterparts,
each of which when so executed and delivered shall be ducted to be an original and all of'which
counterparts taken logelher shall constitute bill one and the same instrument.
Signatures on Next Page
ML*01 3.1.0 n, y
X101025'1012. N
IN WITNESS WHY'RIi01", (his Assignment has been executed by [lie parties as of the
dates set forth below
Dated:�(�' � _ ASSIGNOR:
GOLD COUNTY SCR C�5tN11'ANY��/
a California corp ration �/
Name. .— -
'1'it14 _ _2� ivy✓�� ---- —
Datcd:_ _ _F5 �/{( ASSIGNEE:
SUNSET NEES�CK6 , '
a CaNnia11) 411101By: /Nam (a_y)
Signatures Conlimre on ilex( Page
)WVS,W 21) U -3-
THE AGENCY IIEREBY ACKNOWLEDGES AND CONSENTS TO THIS ASSIGNMENT
AS OF ,r1IE EFFECrIVF, DATE OF SAID ASSIGNMENT
AGENCY:
FULLERTON SUCCESSOR AGENCY, a
public agency under Health and Safety Code
section 34173
By:
Exe lie r ctor
Atte"
,-1
Successor Agency Clerk
Approved as to Form:
By: _
Successor Agency Legal Counsel
2606 03675 0126 _
1307025 2.07/29.'14 -4-