SUPPLEMENTAL INFORMATION FOWLER CITY COUNCILI MEETING TUESDAY, OCTOBER! 5, 2021  Item(s):  7-B.i APPROVE al Disposition and Development Agreement between the City of Fowler and Abdallah Qawadri for City's Surplus Property located at the Northwest Corner of South 7th Street and  East Vine Street, APNs 343-233-02ST and 343-233-03ST Disposition and Development Agreement Draft Conceptual Site Plan Draft Conceptual Massing Diagram  Contents:  About Supplemental Material  In accordance with Government Code Section 54957.5, any writing or document that is a public record and distributed to a majority of the City Council regarding an open session item on the agenda after the Agenda Packet has been distributed is considered supplemental material. Supplemental material is distributed only as needed, and is available for inspection at Fowler City Hall located at 128 South Sth Street, Fowler, CA 93625 during normal business hours. Any supplemental material is also posted in the agenda display case int front of Fowler City Hall andi is available online at www.fowlercity.org:    Recorded By and For the Benefit of And When. Recorded. Return to: CITY OF FOWLER 128 South 5th Street Fowler, California 93625 ATTN: City Clerk  (Spaçe Above for Recorder'sU Use)  DISPOSITION AND DEVELOPMENT AGREEMENT  NORTHWEST CORNER OF SOUTH 7TH STREET AND EAST VINE  STREET, FOWLER, CA  APN343-233-02ST AND 343-233-03ST  CITY OF FOWLER  AND  ABDALLAH QAWDRI    TABLE OF CONTENTS  RECITALS  1.3 CONVEYANCE OF THE PROPERTY. A. Disposition of The Property. B. Purchase Price and Deposit.. C. Escrow D. Costs ofEscrow. E. Escrow Instructions. F. Authority of Escrow Agent.. G. Closing. H. Termination. I. Closing Procedure. J. Review ofTitle. K. Title Insurance. L. Conditions of Closing M. Representations and Warranties. N. Condition of The Property 2. DEVELOPMENT OF THE PROPERTY. A. Developer's Obligation to Construct  10 10 11 12 13 13 14 14 14 15 15 15 15 16 18 18 18 19  Improvements C. Design Review. D. Land Use Approvals Business Activities. F. Cost of Construction. G. Insurance Requirements. H. Developer's Indemnity I. Rights of Access. J. Compliance with Laws K. Nondiscrimination in Employment. L. Taxes and Assessments. M. Release of Construction Covenants. N. Financing ofImprovements. 3. DEFAULTS AND REMEDIES. A. Default Remedies.. B. Institution ofLegal Actions. C. Termination by the Developer Prior to Conveyance of the Property.  B. City Obligations With Respect to the Building.... 10 E. Schedule of Performance and Conforming    D. Termination by the City Prior to Conveyance oft the Property. E. Reentry and Revesting ofTitle in the City for Failure to Timely Commence and Complete Developer Improvements, Begin Operation of Conforming Business Activities, or for an Unlawful Transfer..19 F. Option to Purchase property After Completion ofl Developer Improvements and Operation of Conforming Business  19  Activities. G. Right of First Refusal 4. GENERAL PROVISIONS.  21 22 23 23 23 25 25 .25 25 26 26 26 .26 26 .26 .26 26 .27 .27 .27 27 27 27  A. Notices, Demands and Communications Between the Parties. B. Enforced Delay; Extension of Times ofPerformance. D. Successors and Assigns E. Assignment by City  C. Transfers of Interest in Property or Agreement. : .24 F. Relationship Between City and Developer. G. No Third Party Beneficiaries Excepting Agency ..25 H. City Approvals and Actions. I. Counterparts. J. Integration. L. Interpretation. M. No Waiver.. N. Modifications. O. Severability P. Legal Advice. Q. Cooperation. S. Appliçable Law. oft the City U. Attorneys' Fees. V. Precedence ofDocuments.  K. Real Estate Brokerage Commission  R. Rights and remedies are Cumulative T. Non-Liability ofOfficials and Employees  -ii-    ATTACHMENTS  Attachment No. 1 Attachment No. 2 Attachment No. 3 Attachment No. 4 Attachment No. 5  Legal Description and depiction of] Property Form of Grant Deed Schedule of Performance Release of Construction Covenants Notice of Reversionary Interest  lwdoc:00.50256AGT00896612DOC  -iii-    DISPOSITION AND DEVELOPMENT AGREEMENT  This Disposition and Development Agreement ("Agreement" or "DDA") is entered into Effective October ,2021, between the City of Fowler, a California municipal corporation and general law city ("City") and Abdallah Qawadri ("Developer"), with respect to the following  Recitals, which are a substantive part oft this Agreement:  RECITALS  A. City owns two parcels of real property at the northwest corner of South 7th Street and East Vine Street (APNs 343-233-02ST and 343-233-03ST) ini the City of] Fowler, Fresno County, State of California ("Property"). The Property is legally described and depicted in Attachment No.1. The Property consists ofapproximately 37,025 square feet for both parcels. The Property is in the Form-Based Code zone district, allowing a multitude of uses compatible  with the central business district.  B. After following the California Surplus Land Act, the City made the Property available for sale and private development. Developer expressed interest in purchasing the Property to establish a retail dining establishment and production bakery, and operating other permissible uses. This use shall hereinafter be referred to as "Confirming Business Activities." C. Developer is an experienced commercial developer or has otherwise contracted with experienced commercial developers, contractors, architects, and other professionals for the purposes of developing the Property with a viable commercial business, as proposed. City desires to sell the Property to Developer for the purposes set forth in these Recitals, as further described in this Agreement. The improvements to the Property required by this Agreement shall hereinafter  be referred to as "Developer Improvements" or Improvements".  D. City's disposition of the Property, and the construction, completion, and operation ofthe Developer Improvements pursuant to the terms oft this Agreement, are in the vital and best interest of the City and the health, safety, and welfare of its residents, and will serve the public  purpose ofreal property redevelopment in City's downtown.  NOW,THEREFORE, City and Developer agree as follows:  1.  CONVEYANCE OF THE PROPERTY.  A. Disposition of the Property. Developer agrees to purchase the Property from City, and City agrees to sell the Property to Developer, in accordance with and subject to all of the terms, covenants, and conditions of this Agreement, for the "Purchase Price" set forth below. The conveyance of the Property shall be by "Grant Deed" substantially in the form of Attachment No.  2.  B. Purchase Price and Deposit. The purchase price for the Property shall be Two Hundred Seventy-Five Thousand Dollars ($275,000.00) ("Purchase Price"). The parties agree the Purchase Price constitutes not less than fair market value of the Property and the rights conveyed,    and does not reflect any economic assistance by City. Upon opening of Escrow, Developer shall deposit the sum of One Hundred Twenty-Five Thousand Dollars ($125,000.00) in Escrow ("Developer Deposit"). The Developer Deposit shall be applied to the Purchase Price. The Developer Deposit shall not be refundable to Developer and shall be retained by City as liquidated damages ifEscrow fails to close, except in the event that Escrow fails to close due to the failure of al Developer's Conditions of Closing as described in Section IL(2). The balance oft the Purchase Price shall be paid to the City in three (3)e equal annual installments of Fifty Thousand! Dollars ($50,000) due on December 31 of2022, 2023, and 2024. Developer may prepay the remaining  balance oft the Purchase Price at any time.  C. Escrow. Within ten (10) days after the execution of this Agreement by both parties, the parties shall open escrow ("Escrow") with the Old Republic Title Company ini its Kingsburg office, or another escrow company mutually satisfactory to both parties ("Escrow  Agent").  D. Costs ofEscrow. Developer shall pay all costs for the Title Policy as set forth in Section IK hereof; City shall pay for the documentary transfer taxes due, ifany, with respect to the conveyance of the Property; and Developer shall each pay all other usual fees, charges, and  costs which arise from Escrow.  E.  Escrow Instructions. This Agreement constitutes the joint escrow instructions of  Developer and City, and Escrow Agent to whom these instructions are delivered is hereby empowered to act under this Agreement. The parties agree to do all acts reasonably necessary to  close this Escrow in the shortest possible time.  Ifin the opinion of Developer or the City's City Manager it is necessary or convenient in order to accomplish the Closing, such party may require that the parties sign supplemental escrow instructions; provided that if there is any inconsistency between this Agreement and the supplemental escrow instructions, the provisions oft this Agreement shall control. The parties agree to execute such other and further documents as may be reasonably necessary, helpful, or  appropriate to effectuate the provisions oft this Agreement.  F.  Authority of Escrow Agent. Escrow Agent is authorized to, and shall: (1) Pay and charge City for the premium of the Title Policy and any endorsements thereto as set forth in Section 1K and any amount necessary to place title ini the condition  necessary to satisfy Section 1J oft this Agreement.  (2) Pay and charge Developer and City for their respective shares of any escrow fees, (3) Disburse funds and deliver and record the Grant Deed when both the Developer's Conditions of Closing and the City's Conditions of Closing as described in Section IK herein have  charges, and costs payable under Section ID ofthis Agreement.  been fulfilled or waived by Developer and City.  (4) Do such other actions as necessary to fulfill its obligations under this Agreement.  2    (5) Dosuch other actions as necessary to comply with any federal, state, or local reporting requirements, including directing City and Developer to execute any required forms,  statements, or certificates.  G. Closing. This transaction shall close escrow ("Closing") after satisfaction of all of City and Developer Conditions of Closing as set forth in Section 1L ofthis Agreement, but in no event later than One Hundred Eighty (180) days after Escrow is opened ("Closing Deadline"), unless otherwise extended by written agreement approved by the City's City Council and signed by Developer and the City Manager. Closing shall mean the time and day the Grant Deed is filed  for record with the Fresno County Recorder.  H. Termination. IfEscrow is not in condition to close by the Closing Deadline, then either party which has fully performed under this Agreement may, in writing, demand termination ofthe Escrow. Under these circumstances, Escrow Agent shall return all money, papers, and documents deposited inl Escrow to the respective depositing party, except that Developer Deposit shall be delivered to City in accordance with Section IB above unless otherwise provided in Section 1B. Ifeither party makes a written demand for termination of Escrow, Escrow shall not terminate until ten (10) days after Escrow Agent shall have delivered copies of such demand to the other party at the address shown in this Agreement. Ifany objections are raised within that ten (10) day period, Escrow Agent is authorized to hold all: money, papers, and documents until instructed by a court of competent jurisdiction or by mutual written instructions of the parties. Termination of Escrow shall be without prejudice as to whatever legal rights either party may have against the other arising from this Agreement. Ifno demands are made, Escrow Agent shall  proceed with Closing as soon as possible.  I.  Closing Procedure. Escrow Agent shall close Escrow as follows:  (1) Record the Grant Deed with instructions for the Fresno County Recorder to deliver (2) Instruct the Title Company to deliver the Title Policy to Developer and a copy of (3) File and deliver any informational reports, forms, statements, and certificates as (4) Forward to both Developer and City a separate accounting ofa all funds received and disbursed for each party and copies of all executed and recorded or filed documents deposited into  the Grant Deed to Developer. the Title Policy to City.  required by federal, state or local law.  Escrow, with such recording and filing date and information endorsed thereon.  J.  Review ofTitle. City shall cause Escrow Agent to deliver to Developer a standard  preliminary title report ("Title Report") with respect to title to the Property, together with legible copies of the documents underlying the exceptions ("Exceptions") set forth ini the Title Report, within fifteen (15) days after the Escrow is opened. Developer shall have the right to reasonably approve or disapprove the Exceptions; provided Developer hereby approves the following  3    Exceptions:  (1) Any Redevelopment Plans oft the former Fowler Redevelopment Agency which do (2) Property interests held by a public body or public bodies, including without limitation easements, franchises, licenses, or other property interests of the public body or public bodies, on the Property and/or within the public rights-of-way around the perimeter oft the Property, which do not preclude Developer's use oft the Property as proposed herein.  not preclude Developer's use oft the Property as proposed herein.  (3) The lien of any non-delinquent property taxes and assessments (to be prorated (4) Any incidental easements or other matters affecting title which do not preclude (5) Such other exceptions to title as may hereafter be mutually approved by City and Developer shall have fifteen (15) days from the date ofi its receipt oft the Title Report to give written notice to City and Escrow Agent ofl Developer's approval or disapproval of any oft the Exceptions. Developer's failure to give written disapproval oft the Title Report within such time limit shall be deemed approval oft the Title Report. IfDeveloper notifies City ofits disapproval of any Exceptions in the Title Report, City shall have the right, but not the obligation, to remove any disapproved Exceptions within fifteen (15) days after receiving written notice oft the Developer's disapproval or provide assurances satisfactory to Developer that such Exception(s) will be removed on or before Closing. IfCity cannot or does not elect to remove any oft the disapproved Exceptions within that period, Developer shall have fifteen (15) days after the expiration oft the fifteen(15) day period to give City written notice that Developer elects to terminate this Agreement. The Exceptions to title approved by Developer as provided herein shall hereinafter be  at Closing).  Developer's use oft the Property as proposed herein.  Developer.  referred to as the "Condition ofTitle."  K. Title Insurance. Upon recordation of the Grant Deed, the Title Company shall issue to Developer an California Land Title Association (CLTA) policy of title insurance ("Title Policy"), together with such endorsements as are reasonably requested by Developer, issued by the Title Company insuring the title to the Property is vested in Developer in the condition required by Section IJ ofthis. Agreement. The Title Policy shall be for the amount of1 the Purchase Price. The Title Company shall provide City with a copy ofthe Title Policy. Developer shall be responsible for the cost of the Title Policy and the cost of any additional endorsements Developer desires.  L.  Conditions of Closing. Closing is conditioned upon satisfaction of the following  terms and conditions within the times designated below:  (1) City's Conditions of Closing. City's obligation to proceed with Closing is subject to the fulfillment or waiver by City of each and all oft the conditions precedent (a) through (f),  4    inclusive, described below ("City Conditions of Closing"), which are solely for the benefit of City, and which shall be fulfilled or waived by the time periods provided for herein:  (a) No Default. Prior to the Close of] Escrow, Developer shall not be in default in any ofits obligations under the terms of this Agreement and all representations and warranties of Developer contained herein shall be true and correct in all material respects. other documents required hereunder and delivered such documents into Escrow.  (b) Execution of Documents. Developer shall have executed the Grant Deed and any (c) Payment of Funds. Prior to Closing, Developer shall have deposited the Developer Deposit and all required costs ofClosing intol Escrowi in accordance with Sections 1B and ID  hereof.  (d) Financing. Developer shall have provided evidence of Construction Financing to complete the Developer Improvements, as provided in Section 2N hereof, and such financing shall  fund prior to Closing, or be ready to fund within thirty (30) days after Closing.  (e) Design Review. Developer shall have obtained City approval of] Development (f) Insurance. Developer shall have provided proofofinsurance as required by (2) Developer's Conditions ofClosing. Developer's obligation toj proceed with Closing of the purchase of the Property is subject to the fulfillment or waiver by Developer of each and all the conditions precedent (a) through (f), inclusive, described below ("Developer Conditions of Closing"), which are solely for the benefit ofDeveloper, and which shall be fulfilled  Plans, as provided for in Section 2C.  Section 2F hereof.  or waived by the time periods provided for herein:  (a) No Default. Prior to the Close of Escrow, City shall not bei in default in any ofi its obligations under the terms ofthis Agreement and all representations and warranties of City  contained herein shall be true and correct in all material respects.  (b) Execution of Documents. City shall have executed the Grant Deed and any other (c) Review and Approval ofTitle. Developer shall have reviewed and approved the (d) Title Policy. The Title Company shall, upon payment ofTitle Company's regularly scheduled premium, have agreed to provide to Developer the Title Policy for the Property upon  documents required hereunder and delivered such documents into Escrow. condition of title ofThe Property, as provided in Section 1J1 hereof.  Close of Escrow, in accordance with Section 1K hereof. the proposed development pursuant to Section IN.  (e) Due Diligence. Developer shall have determined that the Property is suitable for  5    (f) Land Use Approvals. Developer shall have obtained approval ofa any Land Use  Entitlements for the Developer Improvements, as provided for in Section 2D.  M. Representations and Warranties.  (1) City Representations. City represents and warrants to Developer as follows: (a) Authority. City has the full right, power and lawful authority to acquire, grant, sell and convey the Property as provided herein, and the execution, performance and delivery oft this Agreement by City has been fully authorized by all requisite actions on the part of City.  (b) Foreign Investment in Real Property Tax Act of1 1980 (FIRPTA). City is nota "foreign person" within the parameters of] FIRPTA or any similar state statute, ori is exempt from the provisions of FIRPTA or any similar state statute, or that City has complied and will comply  with all the requirements under FIRPTA or any similar state statute.  (c) No Conflict. To the best of City's knowledge, City's execution, delivery and performance ofits obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which City is a party or by which it is bound.  (d) Litigation. To the best of City's knowledge, there are no actions, suits, material claims, legal proceedings or any other proceedings affecting the Property, or any portion thereof, at law or in equity, before any court or governmental agency, domestic or foreign.  Until Closing, City shall, upon learning of any fact or condition that would cause any of the warranties and representations in this Section 1M(1) not to be true as of Closing, immediately give written notice ofs such fact or condition to Developer. Such exception(s) to a representation shall not be deemed a breach by City hereunder but shall constitute an exception which Developer shall have a right to approve or disapprove if such exception would have an effect on the value and/or operation ofThe Property. IfDeveloper elects to close Escrow following disclosure of such information, City'sre representations and warranties contained herein shall be deemed to have been made as ofClosing, subject to such exception(s). If, following the disclosure of such information, Developer elects to not close Escrow, then this Agreement and Escrow shall automatically terminate, and neither party shall have any further rights, obligations or liabilities hereunder. Under these circumstances the Developer Deposit shall be returned to Developer. All ofthe representations and warranties set forth in this Section 1M(1) are made with the acknowledgment that they are material, and with the intention that Developer shall rely upon them as inducements to enter into this Agreement and to perform its obligations hereunder and to close the transactions contemplated herein. The representations and warranties contained in this Section IM(1) shall each survive the execution of this Agreement and Closing.  (2) Developer Representations. Developer represents and warrants to City as follows:  6    (a) Authority. Developer has the full right, power and lawful authority toj purchase and accept the conveyance oft the Property, or any portion thereof, and undertake all obligations as provided herein and the execution, performance and delivery oft this Agreement by Developer has  been fully authorized by all requisite actions on the part ofDeveloper.  (b) Experience. Developer is an experienced developer and operator of commercial properties, or has otherwise contracted with experienced commercial developers, contractors, architects, and other professionals for the purposes of developing the Property.  (c) No Conflict. To the best ofl Developer's knowledge, Developer's execution, delivery, and performance ofits obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Developer is a party or by which itis  bound.  (d) No Developer Bankruptcy. Developer is not the subject ofal bankruptcy or other (e) FIRPTA. Developer is not a "foreign person" within the parameters ofFIRPTA or any similar state statute ori is exempt from the provisions of FIRPTA or any similar state statute, or Developer has complied and will comply with all the requirements under FIRPTA or any similar  insolvency proceeding.  state statute.  (f) Deliveries. All documents, instruments and other information delivered by Developer to City pursuant to this Agreement are, to the best of Developer'sknowledge, true,  correct and complete.  (g) Commissions. To the best oft the Developer's knowledge, there are no broker's Until Closing, the Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 1M(2) not to be true as ofthe Closing, immediately give written notice of such fact or condition to City. Such exception(s)toa representation shall not be deemed a breach by Developer hereunder but shall constitute an exception which City shall have a right to approve or disapprove if such exception would have an effect on the value and/or operation oft the Property. IfCity elects to close Escrow following disclosure of such information, Developer's representations and warranties contained herein shall be deemed to have been made as of Closing, subject to such exception(s). If, following the disclosure ofs such information, City elects to not close Escrow, then this Agreement and Escrow shall automatically terminate, and neither party shall have any further rights, obligations or  commissions or finder's fees payable in connection with The Property.  liabilities hereunder.  All oft the representations and warranties set forth in this Section IM(2) are made with the acknowledgment that they are material, and with the intention that City shall rely upon them as inducements to enter into this Agreement and toj perform its obligations hereunder and to close the transactions contemplated herein. The representations and warranties contained ini this Section 1M(2) shall each survive the execution oft this Agreement and Closing.  7    N. Condition ofThe Property.  (1) Disclosure. Developer acknowledges the Property may contain Hazardous Materials as defined in Section IN(5). Upon Closing, it will be Developer's obligation to take any required remedial actions, at its sole cost and expense, to render the Property suitable for development. In that regard, Developer and City may enter into al Right of] Entry Agreement to allow Developer an opportunity to conduct due diligence inspections oft the Property, which will remain in place through Closing. Copies ofa any reports obtained by Developer regarding the condition of the Property shall be provided to City within Ten (10) days after receipt and prior to  Closing.  Except as noted, City and Developer hereby represent and warrant to the other that they have no actual knowledge and have not received any notice or communication from any government agency having. jurisdiction over the Property, notifying such party of the presence of surface or subsurface zone Hazardous Materials in, on, or under the Property, or any portion thereof. "Actual knowledge," - as used herein, shall not impose a duty ofinvestigation, and shall be limited to the actual knowledge of City and Developer employees and agents who have  participated in the preparation oft this Agreement.  (2) No Further Warranties As To Property; Release of City. Notwithstanding any provisions ofthis Agreement to the contrary, the conveyance ofall or any portion oft the Property shall be conveyed to the Developer in an "AS IS" condition, with no warranty, express ori implied by City, as to the Property, improvements on the Property, the soil, its geology, the presence of known or unknown faults or Hazardous Materials, and Developer agrees to and shall indemnify and hold City, and their officers, agents, employees, and volunteers, harmless from and against all liability, loss, damages, costs, or expenses (including reasonable attorneys' fees and court costs) arising from or as a result of the existence ofs such faults or substances. It shall be the sole responsibility ofDeveloper at his expense to investigate and determine the condition oft the soil and improvement conditions on the Property for the development to be constructed. Ifthe soil environmental condition is not in all respects entirely suitable for the use or uses to which the Property will be put, then it is the sole responsibility and obligation of Developer to take such action as may be necessary to place the Property in a condition entirely suitable fori its  development.  Developer hereby waives, releases and discharges forever City, and its officers, agents, employees, and volunteers, from all present and future claims, demands, suits, legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, present and future, arising out of ori in any way connected with the condition oft the Property, any Hazardous Materials in or the Property, or the existence ofHazardous Materials contamination due to the generation of Hazardous Materials from the Property, however they came to be placed there, except that arising out oft the negligence or misconduct oft the City or its  employees, officers, agents or representatives which occur after Closing. Section 1542 of the California Civil Code which provides as follows:  Developer acknowledges that it is aware of and familiar with the provisions of  8    "A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his orl her favor at the time ofexecuting the release and that, if known by him orl her, would have materially affected his or her settlement with the debtor As such relates to this Section IN, Developer hereby waives and relinquishes all rights and  or released party."  benefits which it may have under Section 1542 of the California Civil Code.  balokt Abdallah Qawadri  By:  (3) Developer Precautions After Closing. Upon Closing, Developer shall take all neçessary precautions to prevent the release into the environment of any Hazardous Materials which are located in, on or under the Property. Such precautions shall include compliance with all governmental requirements with respect to Hazardous Materials. In addition, Developer shall install and utilize such equipment and implement and adhere to such procedures as are consistent with commercially reasonable standards as respects the disclosure, storage, use, removal and  disposal ofl Hazardous Materials.  (4) Developer Indemnity. Upon Closing, Developer agrees to indemnify, defend and hold City, and its officers, agents, employees, and volunteers, harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon: (a) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Property which occurs after Closing; or (b) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or liçense relating to the use, generation, release, discharge, storage, disposal or transportation ofHazardous Materials on, under, in or about, to or from, the Property which occurs after Closing. This indemnity shall include, without limitation, any damage, liability, fine, penalty, parallel indemnity after closing cost or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment. At the request ofDeveloper, City shall cooperate with and assist Developer in its defense of any such claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense; provided that City shall not be obligated to incur any  expense in connection with such cooperation or assistance.  9    Hazardous Materials Definition. For purposes ofthis Section IN, Hazardous  Materials means any substance, material, or waste which is or becomes defined and is regulated as hazardous by any governmental authority, the State of California, or the United States government, but shall not include commercially reasonable amounts ofsuch materials in the ordinary course of the development and operation of the Property which are used and stored in accordance with all applicable environmental laws, ordinances and regulations.  2.  DEVELOPMENT OF THE PROPERTY.  A. Developer's Obligation to Construct mprovements. Developer shall develop or cause the development of the Developer Improvements in accordance with the Schedule of Performance (Attachment No. 3), the City of Fowler Municipal Code, and the plans, drawings and documents submitted by Developer and approved by City as set forth herein. Specifically, Developer shall be responsible for construction of a building suitable for retail dining with a  portion oft the building also suitable for aj production bakery.  B. Production Bakery Order Desk. Developer agrees, for aj period of no less than five (5)years beginning upon the Opening ofl Developer Improvements for Business as set forth herein, to locate and designate the Property as the location oft the order desk for purposes of sales from the production bakery sO that the City of] Fowler is deemed the point ofsale, and SO that the City shall receive its portion ofs sales tax revenue from sales from Developer's production bakery located on  the Property.  C. Design Review.  (1) Design, Site Plan, and Construction Drawings. Within the respective times set (a) Design drawings for the Developer improvements, including materials, color board, elevations ofall four facades oft the Developer Improvements, and a rendered perspective, as required by City's Community Development Director and in conformance with applicable City  forth in the Schedule of Performance, Developer shall submit the following:  Code and guidelines ("Design Drawings"). conformance with City guidelines ("Site Plan").  (b) Site plan as required by City's Community Development Director and in  (c) Detailed construction plans and drawings prepared by a registered civil engineer The Design Drawings, Site Plan, and Construction Plans are collectively referred to as the (2) City Review and Approval. City shall have the right to review and reasonably approve the Development Plans ini its sole and reasonable discretion. Developer acknowledges and agrees that City approval is required in order to satisfy City'sobligation to promote the sound  with respect to the Developer Improvements ("Construction Plans").  "Development Plans".  10    development and redevelopment of land within the former redevelopment project area, toj promote al high level of design which will impact the surrounding development, and to provide an environment for the social, economic and psychological growth and well-being oft the citizens of the City ofFowler. Developer shall not be entitled to any monetary damages or compensation as a result ofthe City's disapproval or failure to approve or disapprove the Development Plans. Notwithstanding any provision oft this Agreement to contrary effect, the times for review and action upon the Development Plans by City shall not be deemed to be commenced unless and  until the corresponding submittals by Developer are complete.  City shall state in writing the reasons for disapproval. Developer, upon receipt ofa disapproval based upon powers reserved by the City hereunder, shall revise such portions and resubmit to City by the time established therefor in the Schedule ofl Performance.  (3) Consultation and Coordination. During the preparation oft the Development Plans, staffofCity and Developer shall hold regular progress meetings to coordinate the preparation of, submission to, and review of the Development Plans. The. staff of City and Developer shall communicate and consult informally as frequently as is necessary to ensure that the formal submittal of any documents to City can receive prompt and thorough consideration. City shall designate an employee to serve as the project manager who is responsible for the coordination of City'sactivities under this Agreement and for expediting the land use approval and permitting  process.  (4) Revisions. IfDeveloper desires to propose any revisions to City-approved Development Plans, Developer shall submit such proposed changes to City, and shall also proceed in accordance with any and all State and local laws and regulations regarding such revisions, within the time frame set forth in the Schedule of] Performance. At the sole discretion of City, if any change ini the basic uses ofthe Property is proposed in the Development Plans from the basic uses of the Property as provided fori in this Agreement, then this Agreement is subject to renegotiation ofall terms and conditions. Ift the Development Plans, as modified by the proposed change, generally and substantially conform to the requirements oft this Section 2C, the City Manager shall review the proposed change and notify the Developer in writing within thirty (30) days after submission to City as to whether the proposed change is approved or disapproved. The City Manager is authorized to approve changes to City-approved Development Plans provided such changes: (a) do not significantly modify the scope and character of the Improvements; (b) do not reduce the quality ofn materials to be used; and (c) do not reduce the imaginative and unique qualities of the project design. Any and all change orders or revisions required by City and its inspectors which are required under the Municipal Code and all other applicable codes (e.g., Building, Plumbing, Fire, Electrical, etc.) and under other applicable laws and regulations shall be included by Developer in its Development Plans and completed during construction of the  Developer Improvements.  (5) Defects in Plans. City shall not be responsible either to Developer or to third parties in any way for any defects in the Development Plans, nor for any structural or other defects in any work done according to the approved Development Plans, nor for any delays reasonably caused by the review and approval processes established by this Section 2C. Developer shall hold  11    harmless, indemnify and defend City, and its officers, agents, employees, and volunteers, from and against any claims, suits for damages to property or injuries toj persons arising out ofori in any way relating to defects in the Development Plans, including without limitation the violation of any laws, and for defects in any work done according to the approved Development Plans.  (6) Use ofPlans. City shall not have the right to use Development Plans which are submitted to City by Developer pursuant to this Section 2C, nor shall the City confer any rights to  use such drawings or plans to any person or entity.  D. Land Use Approvals.  (1) Land Use Entitlements. Within the respective times set forth int the Schedule of Performance, Developer shall secure, or cause to be secured, all land use and other discretionary entitlements by City or any other governmental agency necessary to complete the Developer  Improvements.  (2) Other Approvals. Before commencement of construction of Developer Improvements or other related works ofimprovement upon or adjacent to the Property, Developer shall secure or cause to be secured any other permits and approvals which may be required by City  ora any other governmental agency affected by such construction or work. secured by Developer at Developer's sole cost and expense.  (3) Developer Cost and Expense. All land use entitlements and other permits shall be (4) NoP Precommittment by City. Nothing in this Agreement is intended to or shall operate to commit City's discretion with respect to land use and other entitlements, permits, and approvals which may be required by Developer with respect to the Developer Improvements.  E.  Schedule of Performance and Conforming Business Activities.  (1) Schedule of Performance. Developer shall submit all Development Plans, obtain Land Use Approvals, commence and complete all construction ofthe Developer Improvements, and satisfy all other obligations and conditions oft this Agreement, within the respective times established therefor in the Schedule of Performance. The Schedule of Performance shall be  deemed a material part of this Agreement.  (2) Conforming Business Activities. Within ai reasonable period of time following the completion oft the Developer Improvements, not to exceed thirty (30) days after the issuance ofa Certificate of Occupancy, Developer shall operate "Conforming Business Activities." "Conforming Business Activities" means the conduct of commercial and retail uses set forth in the Recitals or as otherwise permitted by applicable zoning and in accordance with the terms of this  Agreement.  Developer shall operate Conforming Business Activities for a period of not less than ten  (10) continuous years after opening.  12    (a) Continuous shall mean the business is not closed during its normal or customarily operated business days for the type ofbusiness, for more than a cumulative total oft thirty (30) days in any calendar year, except as may be required during any enforced delay event as provided  in Section 4B herein.  (b) Non-operation due to government ordered shutdowns beyond the control ofthe (c) Non-operation for repairs or remodeling that are diligently pursued to completion After ten (10)y years, City'so ordinary codes shall apply regarding continuous operation of  Developer, shall be deducted from the ten-year period. shall be deducted from the ten-year period.  the business. F.  Cost of Construction. All ofthe costs of planning, designing, developing, and  constructing the Developer Improvements, including all permits and entitlements, shall be borne  solely by the Developer.  G. Insurance Requirements. Developer shall take out prior to commencement of construction of the Developer Improvements, and maintain or shall cause its contractor to take out and maintain until the issuance oft the Release of Construction Covenants pursuant to Section 2M ofthis Agreement, a comprehensive general liability policy in the amount ofTwo Million Dollars ($2,000,000) combined single limit policy, and ifDeveloper owns automobiles, a comprehensive automobile liability policy in the amount of One Million Dollars ($1,000,000), combined single limit, or such other policy limits as City may approve at its discretion, including contractual liability, as shall protect Developer and City from claims for such damages, and which policy shall be issued by an "A"rated insurance carrier. Such policy or policies shall be written on an occurrence form. Developer shall also furnish or cause to be furnished to City evidence satisfactory to City that the Developer and any contractor with whom it has contracted for the performance of work on The Property or otherwise pursuant to this Agreement carries workers' compensation insurance as. required by law. Developer shall furnish a notarized certificate of insurance countersigned by an authorized agent of the insurance carrier on a form approved by City setting forth the general provisions of the insurance coverage. This countersigned certificate shall name City and its respective officers, agents, employees, and volunteers, as additionally insured parties under the policy, and the certificate shall be accompanied by a duly executed endorsement evidencing such additional insured status. The certificate and endorsement by the insurance carrier shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date ofany such material change, cancellation or termination. Coverage provided hereunder by Developer shall be primary insurance and not be contributing with any insurance maintained by City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of City. The required certificate shall be furnished by Developer at the time set forth therefor ini the Schedule of Performance or, ifr no time is specified, prior to the commencement of construction oft the  Developer Improvements.  13    H. Developer's) Indemnity. Developer shall defend, indemnify, assume all responsibility for, and hold the City and its officers, agents, employees, and volunteers, harmless from all claims, demands, damages, defense costs or liability ofany kind or nature relating to the subject matter oft this Agreement or the implementation thereof and for any damages to property or injuries to persons, including accidental death (including attorneys fees and costs), which may be caused by any acts or omissions of Developer in the performance under this Agreement, whether such activities, performance, or omissions be by Developer or by anyone directly or indirectly employed or contracted with by Developer and whether such damage shall accrue or be discovered before or after termination oft this Agreement. Developer shall not be liable for property damage or bodily injury occasioned by the sole negligence or willful misconduct ofCity or its agents or employees, or the failure of City or its agents or employees to follow accepted safety standards in  connection with accessing the Property pursuant to Section 21, below.  I.  Rights ofAccess. Prior to the issuance ofa a Release of Construction Covenants (as  specified in Section 2M ofthis Agreement), for purposes ofa assuring compliance with this Agreement, including construction oft the Developer Improvements, representatives ofCity shall have the right of access to the Property conveyed to Developer without charges or fees, at normal construction hours during the period of construction. City representatives shall comply with all  safety rules during any such inspection.  J.  Compliance With Laws. Developer shall carry out the design, construction and  operation of the Developer Improvements in conformity with all applicable laws, including all applicable state labor standards, City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City Municipal Code, and all applicable accessibility requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., California Government Code Section 4450, et seq., California Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil  Code Section 51, etseq.  K. Nondiscrimination in Employment. Developer certifies and agrees that all persons employed or applying for employment by it, its affiliates, subsidiaries, orl holding companies, and all subcontractors, bidders and vendors, are and will be treated equally by it without regard to, or  because of any protected class under State of California or Federal law.  L. Taxes and Assessments. Developer shall pay prior to delinquency all ad valorem real estate taxes and assessments on the Property conveyed to Developer. Developer shall remove or have removed any levy or attachment made on any portion oft the Property, or assure the satisfaction thereof within a reasonable time. Developer shall not apply for or receive any exemption from the payment of property taxes or assessments on any interest in or to the Property  ort the Developer Improvements.  M. Release of Construction Covenants. Promptly after completion of the Developer Improvements in conformity with this Agreement, City shall furnish Developer with a "Release of Construction Covenants," substantially in the form of Attachment No. 4 hereto which is incorporated herein by reference. City shall not unreasonably withhold such Release of Construction Covenants. The Release of Construction Covenants shall be a conclusive  14    determination of satisfactory completion of the Developer Improvements in accordance with the terms oft this Agreement and the Release of Construction Covenants shall sO state.  IfCity refuses or fails to furnish the Release of Construction Covenants, after written request from Developer, City shall, within fifteen (15) days of written request therefor, provide Developer with a written statement oft the reasons City refused or failed to furnish the Release of Construction Covenants. The statement shall also contain City's opinion of the actions the Developer must take to obtain the Release of Construction Covenants. The Release of Construction Covenants shall not constitute evidence of compliance with or satisfaction ofany obligation of Developer to any holder of any mortgage, or any insurer ofar mortgage securing money loaned to finance the Developer Improvements, or any part thereof. The Release of Construction Covenants is not ai notice of completion as referred toi in Section 3093 ofthe  California Civil Code.  N. Financing of] Improvements.  (1) Evidence of Financing. Prior to Closing, Developer shall submit evidence satisfactory to City of construction financing ("Construction Financing") as follows:  (a) The obtainment of sufficient equity capital or a: firm and binding commitment for construction financing necessary to undertake development oft the Property and the construction of  the Developer Improvements in accordance with this. Agreement.  (b) The Construction Financing must fund prior to Closing, or be ready to fund within thirty (30) days after Closing. Ifthe Construction Financing fails to fund as provided herein, the City may exercise its rights under this Agreement, including without limitation its right to reenter the Property and revesting of title to the Property in accordance with Section 3E herein.  (c) IfCity is not satisfied with the evidence ofConstruction Financing, City shall notify Developer within twenty (20) days ofreceipt ofa complete submission stating the reasons for such dissatisfaction and Developer shall promptly obtain and submit to City new evidence of financing. City shall not unreasonably withhold or condition its approval of satisfactory  Construction Financing.  (d) Evidence of obtaining Construction Financing shall include the following: (i) a copy of a legally binding, firm and enforceable loan commitment(s) obtained by Developer from one or more financial institutions for the mortgage loan or loans for financing to fund the construction, completion, operation and maintenance of the Developer Improvements, subject to such lenders' reasonable, customary and normal conditions and terms; and/or (ii) a certification from the chief financial officer ofDeveloper that Developer has sufficient funds for such construction, and that such funds have been committed to such construction, and/or other documentation satisfactory to City as evidence of other sources of capital sufficient to demonstrate that Developer has adequate funds to cover the difference between the total cost of the construction and completion of the Developer Improvements, less financing authorized by  those loans set forth in subparagraph (a) above.  15    (2) No Encumbrances Except Mortgages, Deeds ofTrust, or Sale and Lease-Back for Development. Mortgages, deeds oftrust and sales and leases-back shall be permitted before the completion oft the Developer Improvements only with the City's prior written approval, which shall not be unreasonably withheld or delayed, and only for the purpose of securing loans of funds to be used for financing construction of the Developer Improvements (including architecture, engineering, legal, and related direct costs as well as indirect costs), permanent financing, and any other purposes necessary and appropriate in connection with development under this Agreement. Inj no event, however, shall the amount or amounts ofindebtedness: secured by mortgages or deeds oftrust exceed the projected cost of constructing the Developer Improvements, as evidenced by a pro forma and a construction contract which set forth such construction costs. The words "mortgage" and' "trust deed" as used hereinafter shall include sale and lease-back.  (3) Holder Not Obligated to Construct Improvements. The holder of any mortgage or deed oft trust authorized by this Agreement shall not be obligated by the provisions ofthis Agreement to construct or complete the Developer Improvements or any portion thereof, or to guarantee such construction or completion; nor shall any covenant or any other provision in this Agreement be construed so to obligate such holder. Nothing in this Agreement shall be deemed to construe, permit or authorize any such holder to devote the Property to any uses or to construct any improvements thereon, other than those uses or improvements provided for or authorized by  this Agreement.  (4) Notice ofDefault to Mortgagee or Deed ofTrust Holders: Right to Cure. With respect to any mortgage or deed oftrust granted by Developer as provided herein, whenever City may deliver any notice or demand tol Developer with respect to any breach or default by Developer in completion of construction oft the Developer Improvements, City shall at the same time deliver to each holder ofrecord of any mortgage or deed oft trust authorized by this Agreement a copy ofs such notice or demand. Each such holder shall (insofar as the rights granted by the City are concerned) have the right, at its option, within thirty (30) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy ofany such defauit and to add the cost thereoftoi the mortgage debt and the lien ofi its mortgage. Nothing contained in this Agreement shall be deemed toj permit or authorize such holder to undertake or continue the construction or completion oft the Developer Improvements, or any portion thereof (beyond the extent necessary to conserve or protect the improvements or construction already made) without first having expressly assumed Developer's obligations to City by written agreement reasonably satisfactory to City. The holder, in that event, must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title ofs such holder relates. Any such holder properly completing such improvement shall be entitled, upon compliance with the requirements of Section 2M of this Agreement, to a Release ofConstruction Covenants. Iti is understood that a holder shall be deemed to have satisfied the thirty (30) day time limit set forth above for commencing to cure or remedy al Developer default which requires title and/or possession of the Property which shall have been conveyed to Developer if and to the extent any such holder has within such thirty (30) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such  proceedings to completion and cures or remedies the default.  16    (5) Failure ofHolder to Complete Developer Improvements. In any case where, thirty (30) days after the holder of any mortgage or deed oftrust creating a lien or encumbrance upon the Property receives ai notice from City of a default by Developer in completion of construction of any oft the Developer Improvements under this Agreement, and such holder has not exercised the option to construct as set forth in this Section 2N, or ifit has exercised the option but has defaulted hereunder and failed to timely cure such default, City may purchase the mortgage or deed oft trust by payment to the holder of the amount ofthel Purchase Price received by City at the time of Developer's default, and such payment by City shall be City's only obligation to be entitled to any necessary reconveyance of the Property and reconveyance of the mortgage or deed of trust securing the Developer Improvements. Holder's reçourse for any remaining principal and interest and all other sums secured by the mortgage or deed oft trust shall be against Developer and Developer collateral and not against City or the Property. Nothing herein shall impact holder's rights toj proceeds as authorized in Section 3E(2)(b) from a subsequent resale of the Property by City. Ifthe ownership of the Property has vested in the holder, City, ifit SO desires, shall be entitled to a conveyance from the holder to City oft the Property, as applicable, upon payment to  the holder of an amount equal to the sum of the following:  (a) The unpaid mortgage or deed oft trust debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of  rentals and other income received during foreclosure proceedings);  (b) All expenses with respect to foreclosure including reasonable attorneys' fees;  (c) The costs ofa any improvements made by such holder;  (d) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed oftrust debt and such  debt had continued in existence to the date of payment by City.  (6) Right oft the City to Cure Mortgage or Deed of Trust Default. In the event ofa mortgage or deed oftrust default or breach by Developer prior to the completion oft the construction ofa any of the Developer Improvements or any part thereof, Developer shall immediately deliver to City a copy of any mortgage holder's notice of default. Ifthe holder of any mortgage or deed of trust has not exercised its option to construct, City shall have the right but no obligation to cure the default. In such event, City shall be entitled to reimbursement from Developer of all proper costs and expenses incurred by City in curing such default. City shall also be entitled to a lien upon the Property to the extent ofs such costs and disbursements. Any such lien shall be junior and subordinate to the mortgages or deeds oft trust pursuant to this Section 2N.  3.  DEFAULTS AND REMEDIES  A. Default Remedies. Subject to the extensions oftime set forth in Section 4B oft this Agreement, failure by either party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and failure to cure as described hereafter, constitutes a' "Default" under this Agreement. A party claiming a Default shall give written Notice ofDefault to the other party specifying the Default complained of. Except as otherwise expressly  17    provided in this Agreement, the claimant shall not institute any proceeding against any other party, and the other party shall not be in Default ifsuch party within thirty (30) days from receipt ofs such Notice immediately, with due diligence, commences to cure, correct or remedy such failure or  delay and shall complete such cure, correction or remedy with diligence.  B. Institution ofLegal Actions. In addition to any other rights or remedies and subject to the restrictions otherwise set forth in this Agreement, either party may institute an action at law or equity to seek specific performance oft the terms of this Agreement, or to cure, correct or remedy any Default, to recover damages for any Default, or to obtain any other remedy consistent with the purpose oft this Agreement. Such legal actions must be instituted in the Superior Court of the County of Fresno, State ofCalifornia, or ini the District of the United States District Court in  which such county is located.  C. Termination by the Developer Prior to Conveyance oft the Property. In the event that prior to the conveyance of the Property Developer is not in default under this Agreement and: (1) City does not tender title pursuant to the Grant Deed in the manner and condition and by the date provided in this Agreement; or (2) one or more ofthe Developer Conditions of Closing is not fulfilled on or before the time set forth in the Schedule of Performance and such failure is not caused by Developer; or (3) any default ofCity prior to Closing is not cured within the time set forth in Section 3A hereof, after written demand by Developer; then this Agreement may, at the option ofDeveloper, be terminated by written Notice thereofto City. From the date oft the Notice oftermination ofthis Agreement by Developer to City and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties with respect to the Property by virtue of or with respect to this Agreement. Under these circumstances,  Developer shall be entitled to a return ofthe Developer Deposit.  D. Termination by City Prior to Conveyance oft the Property. In the event that prior to conveyance of the Property City is not in Default under this Agreement and: (1) Developer (or any successor ini interest) assigns or attempts to assign the Agreement or any rights therein ori ini the Property in violation ofthis Agreement; or (2) one or more of the City Conditions of Closing is not fulfilled on or before the time set forth ini the Schedule ofl Performance and such failure is not caused by City; or (3) Developer is otherwise in default of this Agreement and fails to cure such default within the time set forth in Section 3A hereof; then this Agreement and any rights of Developer or any assignee or transferee with respect to or arising out oft the Agreement or the Property, shall, at the option of City, be terminated by City by written Notice thereofto Developer. From the date oft the Notice oft termination oft this Agreement by City tol Developer and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties. Under these circumstances, City shall be entitled to keep the  Developer Deposit plus any accrued interest.  E. Reentry and Revesting ofTitle in the City for Failure to Timely Commence and Complete Developer Improvements. Begin Operation of Conforming Business Activities. or fora an  Unlawful Transfer.  (1) After Closing and Prior to Completion ofthe Developer Improvements or Opening ofConforming Business Activities. City has the right, at its election, to reenter and take  18    possession oft the Property transferred tol Developer by Grant Deed pursuant to this Agreement, with all improvements thereon, and terminate and revest in City the estate conveyed to Developer  ifafter the Closing Developer (ori its successors in interest) shall:  (a) Fail to obtain Construction Financing within the time required in this Agreement or fail to provide evidence satisfactory to City of Construction Financing within the time required in  this Agreement.  (b) Fail to start construction oft the Developer Improvements as required by this Agreement for a period of thirty (30) days after written notice thereof from City; or (c) Abandon or substantially suspend construction oft the Developer Improvements required by this Agreement for aj period ofthirty (30) days after written notice thereof: from the City, unless such abandonment or suspension is not caused by Developer's acts or omissions or as  provided for in Section 4B; or Schedule ofPerformance; or Schedule ofPerformance; or  (d) Fail to complete the Developer Improvements within the time limits set forth in the (e) Fail to open Conforming Business Activities within the time limits set forth in the (f) Contrary to the provisions of Section 4C, Transfer or suffer any involuntary (2) Conditions of Reentry and Revesting Rights. City's right to reenter, terminate and  Transfer in violation of this Agreement.  revest shall be subject to and be limited by and shall not defeat, render invalid or limit: (a) Any mortgage or deed of trust permitted by this Agreement; or  (b) Any rights or interests provided in this Agreement for the protection of the holders City shall not unreasonably refuse any request to subordinate its right ofreentry to a City- approved construction lender's mortgage or deed oft trust securing al loan of funds for financing  ofsuchi mortgages or deeds oft trust.  construction oft the Developer Improvements.  The Grant Deed shall contain appropriate reference and provision to give effect to City'sr right as set forth in this Section 3E, to: reenter and take possession oft the Property, with all improvements thereon, and to terminate and revest in City the estate conveyed to Developer. Upon the revesting in City oft title to the Property transferred to Developer by Grant Deed as provided in this Section 3E, City shall have the sole and absolute discretion with respect to the Property, including without limitation retaining the Property for City or other public use, or disposing of the Property in its sole and absolute discretion. IfCity decides to sell the Property City will use reasonable efforts to resell the Property as soon and in such manner as the City may find feasible to a qualified and responsible party or parties (as determined by City) who will  19    assume the obligation ofmaking or completing the Developer Improvements, or such improvements in their stead as shall be satisfactory to City and in accordance with the uses specified for the Property. Upon such resale oft the Property, the net proceeds thereofafter repayment of any mortgage or deed oft trust encumbering the Property, which is permitted by this  Agreement, may be applied:  (c) First, to reimburse City, on its own behalf or on behalf of City, all costs and expenses incurred by City, including, but not limited to, reasonable City staff costs and any expenditures by City in connection with the recapture, management and resale of the Property or any part thereof (but less any income derived by City from the Property or any part thereofin connection with such management); all taxes, assessments and water or sewer charges with respect tot the Property or any part thereofv which Developer has not paid (or, in the event that Property is exempt from taxation or assessment of such charges during the period ofownership thereofby City, an amount, if paid, equal to such taxes, assessments, or charges as would have been payable ifthe Property were not SO exempt); any payments made or necessary to be made to discharge any encumbrances orl liens existing on the Property or part thereofat the time or revesting oftitle thereto in City, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of Developer, its successors or transferees; any expenditures made or obligations incurred with: respect to the making or completion of the Improvements or any part thereofon the Property; and any amounts otherwise owing City; and in the event additional proceeds are thereafter available, then  (d) Second, to reimburse Developer, its successor or transferee, up to the amount equal to the sum ofthe costs incurred for the acquisition and development oft the Property transferred to Developer by Grant Deed and for the Developer Improvements existing on such the Property at the time oft the reentry and possession, less any gains or income withdrawn or made by Developer from the Property transferred to Developer by Grant Deed or the Developer Improvements  thereon.  Any balance remaining afters such reimbursements shall be retained by City as its property. The rights established in this Section 3E are not intended to be exclusive of any other right, power or remedy, but each and every such right, power, and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy authorized herein or now or hereafter existing at law ori in equity. These rights are to be interpreted in light of the fact that City will have conveyed the Property to the Developer for redevelopment purposes, particularly for development and operation of commercial facilities, and not for speculation.  (3) Perfecting Reversionary Interest. City may perfect its revisionary interest by recording a Notice of Reversionary Interest in substantially the form set forth in Attachment No.  5.  F.  Option to Purchase Property After Completion of Developer Improvements and  Operation of Conforming Business Activities. IfDeveloper ceases to operate conforming Business Activities in accordance with Section 2E(2), City shall have the "Option" to purchase the  Property, and all improvements thereon.  20    (1) Exercise of Option. City may exercise this Option by delivering written notice of the exercise ("Exercise Notice")tol Developer before the expiration oft the ten (10): year Conforming Business Activity provision ("Option Term"). Upon exercise of the Option, the price to acquire the Property shall be the Purchase Price paid by Developer for the Property, plus the Developer's costs to construct the Developer Improvements, not to exceed the "Fair Market  Value"o of the Property ("Acquisition Cost").  (a) "Fairl Market Value" ofthe Property shall be established by an MAI appraiser. City and Developer shall each select an MAI appraiser to prepare an appraisal at their own cost. The Fair Market Value forj purposes oft this section shall be the average oft the two appraisals. Developer may forego obtaining an appraisal, in which case the Fair Market Value shall be  established by City's appraisal.  (b) Developer's costs to construct the Developer Improvements shall be established by  written receipts, and Developer shall be solely responsible for furnishing appropriate  documentation to the satisfaction of the City.  (c) The principal balance ofa any mortgage, deed oftrust, security instrument, or similar lien remaining on the Property at the close of escrow shall be deducted from the Acquisition Cost. (d) City and Developer may agree to an alternative method ofo determining the (2) Execution of] Purchase Agreement. After receipt of the Exercise Notice for purchase oft the Property, Developer and City shall promptly prepare and execute. a purchase and sale agreement ("Purchase Agreement"). The Purchase Agreement shall be on a customary commercial form used where public agencies acquire property, or otherwise in a form acceptable tol Developer and City. City and Developer shall open escrow for the Property acquisition within  Acquisition Cost, or any portion thereof.  thirty (30) days of the Exercise Notice.  G. Right of First Refusal. For aj period of Fifty (50) years from the Effective Date of this Agreement, City shall have a "Right ofl First Refusal" to acquire the Property, including any improvements located thereon, at a Fair Market Value as described in Section 3F(1)(a). This Right of First Refusal shall apply to aj proposed purchase or a single term lease in excess oft ten  (10)years that is not otherwise prohibited by this Agreement.  (1) Notification to City. Upon Developer's receipt of a bona fide offer to purchase or lease the Property and/or Building for a single period in excess ofTen (10): years ("Offer") from a party who is not affiliated with Developer ("Third Party"), which Offer Developer is willing to accept, Developer shall give notice to City ("Notice") that Developer intends to accept the Offer,  and concurrently therewith provide City with a copy of the Offer.  (2) Election of Right ofFirst Refusal. IfCity elects to exercise its Right ofl First Refusal, it shall do sO by delivering to Developer written notice ofi its election ("Election") to purchase or lease the Property on terms and conditions substantially the same (identical as to  21    purchase price or lease price) set forth in the Offer, within one hundred twenty (120) days after the  receipt ofthe Notice.  IfCity does not so notify Developer within said 120 days, City shall be deemed to have rejected the Offer and Developer may proceed to sell or lease the Property (free and clear ofthis Right of First Refusal) to the Third Party on the terms and conditions set forth in the Offer, orc on  terms which are better for Developer, but not worse for Developer.  (3) Execution of Purchase Agreement. Ifc City elects to exercises its Right ofl First Refusal, Developer and City shall promptly prepare and execute a purchase and sale or lease agreement ("Purchase Agreement"). The Purchase Agreement shall be on a customary commercial form used where public agencies acquire property, or otherwise in a form acceptable tol Developer and City. City and Developer shall open escrow for the Property acquisition within  Thirty (30) days oft the Election.  (4) Continuation of Right of First Refusal. Upon the consummation ofs such purchase and sale or lease to the Third Party, this Right ofFirst Refusal shall automatically and without further notice terminate. If, however, Developer does not consummate a sale or lease to the Third Party as aforesaid, this Right of First Refusal shall not terminate, but shall be revived and continue  for the then remaining balance oft term oft this Right ofFirst Refusal.  4. GENERAL PROVISIONS  A. Notices, Demands and Communications Between the Parties. Any approval, disapproval, demand, document or other notice ("Notice") which either party may desire to give to the other party under this Agreement must be in writing and may be given by any commercially acceptable means to the party to whom the Notice is directed at the address ofthe party as set forth  below, or at any other address as that party may later designate by Notice.  To City:  City Manager City ofl Fowler 128 South 5th Street Fowler, California 93625 Tel: (559) 834-3113 Email: quangc.iowler.ca.us Abdallah Qawadri 8188 North Chance Avenue Fresno, CA93720 (559) 704-4362 mandanyomlaece  To Developer:  Any written notice, demand or communication shall be deemed received: immediately if delivered by hand; 24 hours after delivery to ai receipted, overnight delivery service such as Federal Express; 24 hours after delivery be e-mail with an acknowledgement ofreceipt by the  22    intended recipient; and on the fourth (4th) day from the date it is postmarked if delivered by  registered or certified mail.  B. Enforced Delay; Extension ofTimes ofl Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to: war; insurrection; pandemic; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; governmental restrictions or priority; litigation; acts or omissions of the other party; or acts or failures to act of City or any other public or governmental agency or entity (other than the acts or failures to act ofCity which shall not excuse performance by City, but where any unreasonable delay by City on an action required by this Agreement shall toll the timeframes for an amount oft time equal to such unreasonable delays). Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period oft the enforced delay and shall commence to run from the time of the commencement oft the cause, ifNotice by the party claiming such extension is sent to the other party within thirty (30) days oft the commencement oft the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of City and Developer. Notwithstanding any provision oft this Agreement to the contrary, the lack of funding to complete the Developer Improvements shall not constitute grounds ofenforced delay pursuant to this  Section 4B. C.  Transfers ofI Interest in Property or Agreement.  (1) Prohibition. The qualifications and identity ofDeveloper, as well as Developer's proposal, are of particular concern to City. Therefore, for the period commencing upon the date of this Agreement and until furnishing of the Release of Construction Covenants: (a) no voluntary or involuntary successor in interest of] Developer shall acquire any rights or powers under this Agreement; (b) nor shall Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease oft the whole or any part ofthe Property or the Developer Improvements thereon; collectively referred tol herein as a "Transfer," without the prior  written approval oft the City, except as expressly set forth herein.  (2) Permitted Transfers. Notwithstanding any other provision oft this Agreement to the contrary, City approval ofa Transfer shall not be required in connection with any of the following: (a) Any Transfer to an entity or entities in which Developer retains a minimum of fifty-one percent (51%) oft the ownership or beneficial interest and retains management and  control oft the transferee entity or entities.  (b) Any requested assignment for financing purposes (subject to such financing being considered and approved by City pursuant to Section 2N herein), including the grant ofa deed of trust to secure the funds necessary for land acquisition, construction and permanent financing of  the Developer Improvements.  In the event ofa a Transfer by Developer under subparagraph (a) above not requiring the City's prior approval, Developer nevertheless agrees that at least thirty (30) days prior to such  23    Transfer it shall give written notice to City of such assignment and satisfactory evidence that the assignee has assumed in writing, through an assignment and assumption agreement in a form satisfactory to City's legal counsel, all oft the obligations of this Agreement. Such assignment shall not, however, release the assigning Developer from any obligations to City hereunder. (3) City Consideration ofRequested Transfer. City agrees that it will not unreasonably withhold approval of a request for approval ofa a Transfer made pursuant to this Section 4C, provided Developer delivers written Notice to City requesting such approval. Such Notice shall be accompanied by evidence regarding the proposed transferee's development and/or operational qualifications and experience, and its financial commitments and resources, in sufficient detail to enable City to evaluate the proposed assignee or purchaser pursuant to the criteria set forth in this Section 4C and as reasonably determined by City. City may, in considering any such request, take into consideration such factors as: (a) the quality ofany new and/or replacement operator; (b) the sales tax revenues projected to be received from the Property; (c) the transferee's past performance as developer and operator of commercial facilities; (d) the current financial condition oft the transferee, and similar factors. City's approval shall be by the City Council. City agrees not to unreasonably withhold its approval of any such requested Transfer, taking into consideration the  foregoing factors.  An assignment and assumption agreement in form satisfactory to City'sl legal counsel shall also be required for all proposed Transfers requiring City approval. Within thirty (30) days after the receipt ofI Developer's written Notice requesting City approval ofa Transfer pursuant to this Section 4C, City shall either approve or disapprove such proposed assignment or shall respond in writing by stating what further information, if any, City reasonably requires in order to determine the request complete and determine whether or not to grant the requested approval. Upon receipt ofsuch a response, Developer shall promptly furnish to City such further information as may be  reasonably requested.  D. Successors and Assigns. All oft the terms, covenants and conditions of this Agreement shall be binding upon Developer and its permitted successors and assigns. Whenever the term "Developer" is used in this Agreement, such term shall include any other permitted  successors and assigns as herein provided.  E.  Assignment by City. The City may assign or transfer any ofi its rights or  obligations under this Agreement with the approval of Developer, which approval shall not be  unreasonably withheld. F.  Relationship Between City and Developer. Itis hereby acknowledged that the  relationship between City and Developer is not that ofa partnership orj joint venture and that City and Developer shall not be deemed or construed for any purpose to be the agent of the other. Except as expressly provided herein or in the Attachments hereto, City shall not have any rights, powers, duties or obligations with respect to the development, operation, maintenance or  management of the Developer Improvements.  24    G. No Third Party Beneficiaries Excepting City. Excepting only City, which shall be deemed to be ai third party beneficiary of this Agreement, there shall be no third party beneficiaries  oft this Agreement.  H. City_Approvals and Actions. City shall maintain authority over this Agreement and the authority to implement this Agreement through the City Manager. The City Manager shall have the authority to make approvals, issue interpretations, waive provisions, and/or enter into certain amendments ofthis Agreement on behalfofCity so long as such actions do not materially ors substantially change the uses or development permitted on the Property, and such approvals, interpretations, waivers and/or amendments may include extensions oft time to perform as specified in the Schedule of Performance. All other material and/or substantive interpretations, waivers, or amendments shall require the consideration, action and written consent of the City  Council. I.  Counterparts. This Agreement may be signed in multiple counterparts which, when  signed by all parties, shall constitute a binding agreement. This Agreement shall be executed in  three (3) originals, each ofv which is deemed to be an original.  J.  Integration. This Agreement contains the entire understanding between the parties  relating to the transaction contemplated by this Agreement, notwithstanding any previous negotiations or agreements between the parties or their predecessors in interest with respect to all orany part oft the subject matter hereof. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be ofr no further force or effect. Eachj party is entering this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. This Agreement includes Attachment Nos. 1 through 5, which  are incorporated herein.  K. Real Estate Brokerage Commission. City and Developer each represent and warrant to the other that no broker or finder is entitled to any commission or finder's fee in connection with Developer's acquisition of the Property from the City. The parties agree to defend and hold harmless the other party from any claim to any such commission or fee from any other broker, agent or finder with respect to this Agreement which is payable by such party. asiffollowed by the words "without limitation." This Agreement has been prepared with input from both parties, and shall be interpreted as though prepared jointly by both parties.  L.  Interpretation. As used in this Agreement, the word "including" shall be construed  M. No Waiver. Any failures or delays by either party in asserting any ofits rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such party ofi its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. Nor shall a waiver by either party ofal breach of any oft the covenants, conditions or agreements under this Agreement to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions ofthis  Agreement.  25    N. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf ofe each  party.  O. Severability. Ifany term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder oft this Agreement, or the application oft the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. P. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do sO with full knowledge ofany right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf oft the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion,  whether economic or otherwise.  Q.  Cooperation. Each party agrees to cooperate with the other in this transaction and,  in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent oft this Agreement including, but not limited to,  releases or additional agreements.  R. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the  other party. S. T.  Applicable Law. The laws of the State ofCalifornia shall govern the interpretation Non-Liability ofOfficials and Employees ofthe City. No member, official or  and enforcement oft this Agreement.  employee oft the City shall be personally liable to the Developer, or any successor in interest, in the event ofany Default or breach by the City or for any amount which may become due to the Developer or its successors, or on any obligations under the terms of this Agreement.  U. Attorneys' Fees. In any action between the parties to interpret, enforce, reform, modify, rescind, or otherwise in connection with any of the terms or provisions oft this Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive relief, or any other relief to which it might be entitled, reasonable costs and expenses including, without  limitation, litigation costs and reasonable attorneys' fees.  26    V. Precedence ofDocuments. Ifthere is any conflict between this Agreement and any supplemental escrow instructions, the order of precedence for resolving conflicts shall be as follows: first this Agreement, second the supplemental escrowi instructions.  Signatures on Next Page  27    IN WITNESS WHEREOF, City and Developer have executed this Disposition and  Development Agreement as oft the date set forth above.  ABDALLAH QAWADRI  Date: 10/4/z1  Abdallah Qawadri CITY OF FOWLER  Date:  Wilma Quan, City Manager  ATTEST:  Date:  Angela Vazquez, Deputy City Clerk APPROVED AS TO FORM: LOZANO SMITH  Date:  Scott Cross, City Attorney  lsdc00250256AGT0088893LDOC  28    ATTACHMENT NO.1  LEGAL DESCRIPTION AND DEPICTION  OF ASSESSOR'S PARCEL NUMBERS 343-233-02ST and  343-233-03S1  LEGAL DESCRIPTION  NORTH CITY OWNED PARCEL AT VINE AND 7TH  THE LAND REFERRED TO HERIN BELOW IS SITUATED IN THE CITY OF FOWLER, COUNTY OF FRESNO, STATE OF CALIFORINIA AND IS DESCRIBED AS FOLLOWS: PARCEL 1 OF PARCEL MAP NO. 97-1 MAP THEREOF FILED DECEMBER 26, 1997D IN BOOK 58 OF PARCEL MAPS AT PAGE 52, FRESNO COUNTY RECORDS  SOUTHCITY OWNED PARCEL AT VINE AND 7TH  THE LAND REFERRED TO HERIN BELOW IS SITUATED IN THE CITY OF FOWLER, COUNTY OF FRESNO, STATE OF CALIFORINIA AND IS DESCRIBED AS FOLLOWS: PARCEL 2 OF PARCEL MAP NO. 97-1 MAP THEREOF FILED DECEMBER 26, 19971 IN BOOK 58 OF PARCEL MAPS ATI PAGE 52, FRESNO COUNTY RECORDS    IS  HIS'S  H19 'S  88  1S  HIL'S:  "8'B OlIOVd NH3HINOS    ATTACHMENT NO.2 FORM OF GRANT DEED  Recorded. By and For the Benefit of, And When Recorded Return to: Abdallah Qawadri 8188 North Chance Avenue Fresno, CA 93720  (Space Above for Recorder'sUse).  GRANT DEED  For valuable consideration, receipt of which is hereby acknowledged,  The City of Fowler, a California municipal corporation ("City"), hereby grants to Abdallah Qawadri ("Developer"), the real property hereinafter referred to as the Property," described in Exhibit A attached hereto and incorporated herein, subject to the existing  easements, restrictions and covenants of record described therein.  1. Conveyance in Accordance Disposition and Development Agreement. The Property is conveyed in accordance with and subject to a Disposition and Development Agreement entered into between City and Developer dated October 2021( ("DDA"), a copy of which is on file with City at its offices as aj public record and which is incorporated herein by reference. The DDA generally requires the Developer to construct certain improvements ("Developer Improvements") and other requirements as set forth therein. All terms used herein shall have the  same meaning as those used in the DDA.  2.  Permitted Uses. Developer covenants and agrees fori itself, its successors, its assigns, and every successor in interest to the Property or any part thereof, that upon the date ofthis Grant Deed and during construction through completion of development and thereafter, Developer shall devote the Property to the uses specified ini this Grant Deed for the periods oftime specified therein. All uses conducted on the Property, including, without limitation, all activities undertaken by Developer pursuant to thel DDA, shall conform to the DDA and all applicable provisions oft the City of] Fowler Municipal Code. The foregoing covenants shall run with the  land. 3.  Restrictions on Transfer and Encumbrances. Developer further agrees as follows: A. For the period commencing upon the date of this Grant Deed and until the furnishing oft the Release of Construction Covenants for the Developer Improvements, no voluntary ori involuntary successor ini interest of] Developer shall acquire any rights or powers under the DDA or this Grant Deed, nor shall Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part ofthe    Property or the Developer Improvements thereon, nor shall Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the facilities being operated upon the Property, without the prior written approval ofthe City pursuant to Section 4C  ofthel DDA.  B. Except as approved in writing by City, Developer shall not place or suffer to be placed on the Property any lien or encumbrance, including but not limited to, mortgages, deeds oftrust, or any other form of conveyance required for financing of the construction of the Developer Improvements on the Property and any other expenditures necessary and appropriate tod develop the Property pursuant to the DDA, except as provided in Section 2N of the DDA. upon Developer and the permitted successors and assigns oft the Developer. Whenever the term "Developer" is used in this Grant Deed, such term shall include any other successors and assigns  C.  All of the terms, covenants and conditions of this Grant Deed shall be binding  as herein provided. 4.  Nondiscrimination. Developer herein covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any protected class under California State or federal law in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment oft the land herein conveyed, nor shall Developer itself or any person claiming under or through Developer, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy oftenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing  covenants shall run with the land.  5.  City Right ofReentry. City has the right, at its election, to reenter and take possession of the Property, with all improvements thereon, and terminate and revest in City the estate conveyed to Developer ifa after the Closing Developer (or its successors ini interest). shall: DDA for a period ofthirty (30) days after written notice thereof from City; or  A. Fail to start the construction of the Developer Improvements as required by the B. Abandon or substantially suspend construction of the Developer Improvements required by the DDA for a period of thirty (30) days after written notice thereof from the City, unless such abandonment or suspension is not caused by Developer's acts or omissions ora as  provided for in Section 4B oft the DDA; or  C. Fail to complete the Developer Improvements within the time limits set forth in D. Fail to open Conforming Business Activities within the time limits set forth in the  the DDA; or DDA; or E.  Contrary to the provisions of Section 4C oft the DDA, Transfer or suffer any  involuntary Transfer in violation of the DDA.  2    The City's right to reenter, terminate and revest shall be subject to and be limited by and  shall not defeat, render invalid or limit:  (1) Any mortgage or deed oftrust permitted by the DDA; or  (2) Any rights or interests provided in the DDA for the protection oft the holders of City shall not unreasonably refuse any request to subordinate its right of reentry to a City- approved construction lender's mortgage or deed oftrust securing a loan of funds for financing construction ofthe Developer Improvements in accordance with Section 2M oft the DDA. Upon the revesting in City oft title to the Property as provided in this Section, City shall use its reasonable efforts to resell the Property as soon and in such manner as City shall find feasible to a qualified and responsible party or parties (as determined by City) who will assume the obligation of making or completing the Developer Improvements, or such improvements in their stead as shall be satisfactory to City and in accordance with the uses specified for the Property. Upon such resale of the Property, the net proceeds thereof after repayment of any mortgage or deed oft trust encumbering the Property, which is permitted by this Agreement, shall  such mortgages or deeds of trust.  be applied:  (1) First, to reimburse City, on its own behalf or on behalfo of City, all costs and expenses incurred by City, excluding City staff costs, but specifically, including, but not limited to, any expenditures by the City in connection with the recapture, management and resale oft the Property or part thereof (but less any income derived by City from the Property or part thereofin connection with such management); all taxes, assessments and water or sewer charges with respect to the Property or part thereof which Developer has not paid (or, in the event that the Property is exempt from taxation or assessment of such charges during the period of ownership thereofby City, an amount, ifp paid, equal to such taxes, assessments, or charges as would have been payable if the Property were not sO exempt); any payments made or necessary to be made to discharge any encumbrances or liens existing on the Property or part thereof at the time or revesting oftitle thereto in City, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts ofl Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the Improvements or any part thereof on the Property; and any amounts otherwise owing City; and in the event additional proceeds are thereafter available, then  (2) Second, to reimburse Developer, its successor or transferee, up to the amount equal to the sum of the costs incurred for the acquisition and development of the Property and for the Developer Improvements existing on the Property at the time of the reentry and possession, less any gains or income withdrawn or made by Developer from the Property or the Developer  Improvements thereon.  Any balance remaining after such reimbursements shall be retained by City as its property. The rights established in this Section are not intended to be exclusive ofa any other  3    right, power or remedy, but each and every such right, power, and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy authorized herein or now or hereafter existing at law or in equity. These rights are to be interpreted in light oft the fact that City will have conveyed the Property tol Developer for redevelopment purposes, particularly  for development and operation of commercial uses, and not for speculation.  6.  Violations Do Not Impair Liens. No violation or breach oft the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid ori in any way impair the lien or charge of any mortgage or deed oft trust or security interest permitted by Section 3 ofthis Grant Deed; provided, however, that any subsequent owner ofthe Property shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such owner's title was acquired by foreclosure, deed in lieu of foreclosure,  trustee's sale or otherwise.  7.  Covenants Run With Land. AlI covenants contained in this Grant Deed shall be covenants running with the land. All ofDeveloper's obligations hereunder except as provided hereunder shall terminate and shall become null and void upon completion oft the Developer Improvements and the opening of Conforming Business Activities. Every covenant contained in this Grant Deed against discrimination contained in Section 4 ofthis Grant Deed shall: remain in  effect inj perpetuity. 8.  Covenants For Benefit of City. All covenants without regard to technical classification or designation shall be binding for the benefit of City, and such covenants shall run in favor of City for the entire period during which such covenants shall be in force and effect, without regard to whether City is or remains an owner of any land ori interest therein to which such covenants relate. City, in the event ofany breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any actions at law or suits in equity or other proper  proceedings to enforce the curing of such breach.  9.  Revisions to Grant Deed. Both City, its successors and assigns, and Developer and the successors and assigns ofI Developer in and to all or any part of the fee title to the Property, shall have the right with the mutual consent ofCity and Developer to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements or restrictions contained in this Grant Deed without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the Property. However, Developer and City are obligated to give written notice to and obtain the consent ofany first mortgagee prior to consent or agreement between the parties concerning such changes to this Grant Deed. The covenants contained in this Grant Deed, without regard to technical classification, shall not benefit or be enforceable by any third party  not aj party to the DDA.  Signatures on Next Page -    ABDALLAH QAWADRI OBdaloke Abdallah Qawadri  Date:  IO/yfzr  CITY OF FOWLER  Date:  Wilma Quan, City Manager  ATTEST:  Date:  Angela Vazquez, Deputy City Clerk APPROVED AS TO FORM: LOZANO SMITH  Date:  5    Exhibit A  LEGAL DESCRIPTION  NORTH CITY OWNED PARCEL ATVINE AND 7TH  THE LAND REFERRED TO HERIN BELOW IS SITUATED IN THE CITY OF FOWLER, COUNTY OF FRESNO, STATE OF CALIFORINIA AND IS DESCRIBED AS FOLLOWS: PARCEL 10 OF PARCEL MAP NO. 97-1 MAP THEREOF FILED DECEMBER 26, 1997IN BOOK 58 OF PARCEL MAPS ATI PAGE 52, FRESNO COUNTY RECORDS  SOUTH CITY OWNED PARCEL ATI VINE AND7TH  THEI LAND REFERRED TO HERIN BELOW IS SITUATED IN THE CITY OF FOWLER, COUNTY OF FRESNO, STATE OF CALIFORINIA AND IS DESCRIBED AS FOLLOWS: PARCEL 2 OF PARCEL MAP NO. 97-1 MAP THEREOF FILED DECEMBER 26, 1997IN BOOK 58 OF PARCEL MAPS ATI PAGE 52, FRESNO COUNTY RECORDS    ATTACHMENT NO.3 SCHEDULE OF PERFORMANCE  NORTHWEST CORNER OF SOUTH 7th STREET & VINE  STREET PROPERTY  1. Execution of Agreement by City. The City shall execute this Agreement if approved by City Council.  Within five (5) days after City Council approval, the City shall deliver two (2) executed copies oft this Agreement to the Developer who shall execute and return to the City within five (5) days. Within ten (10) days after City'sr receipt of  2. Opening of Escrow.  City shall open Escrow with Escrow Agent. fully executed Agreement.  3.E Evidence ofofthe Obtainment of Construction Financing. Developer submits evidence of Construction Financing as required by Section 2N. 4.Submission of Development Plans. Developer submits Design Drawings, Site Plan, and Construction Plans to City's Community Development Director. 5.City Approval or Disapproval of Development Plans. City's Community Development Director shall review the Design Drawings, Site Plan, and Construction Plans, and approve or 6.Revisions to Development Plans. Developer shall prepare revised Development comments. Plans and resubmit them to the Community Development Director for review.  Prior to Closing.  Within (60) days of] Effective Date of this  Agreement.  Within sixty (60) days after submittal.  disapprove same.  Within thirty (30) days after receipt ofCity    7. Final Review of Development Plans. The Community Development Director shall Developer. approve or disapprove the revisions submitted by Developer provided that the revisions necessary to accommodate the Director's comments have been made. 8.1 Land Use Approvals. Developer shall obtain any required discretionary land use entitlements for the Developer Improvements as required by  Within thirty (30) days after submittal by the  Prior to closing.  Section 2D.  9.C Conditions of Closing. Developer and City shall satisfy all their respective Conditions of Closing.  Not later than one hundred eighty (180) days  after Escrow is opened.  10. Close of Escrow for Conveyance of the Not later than one hundred eighty (180) days  Property.  after Escrow is opened.  City shall convey the Property tol Developer. 11. Construction Permits. Developer shall obtain all construction and any other permits ("Building Permits") necessary to commence construction ofthe Developer Improvements as set forth in  Not later than thirty (30) days after Closing.  Section 2D.  12. Insurance Certificate. required by Section 2G.  Prior to the commencement of construction.  Developer shall provide proof ofinsurance as 13. Commencement of Construction. Developer Improvements. 14. Completion of Construction. Developer Improvements.  Within thirty (30) days after issuance of the  Developer shall commence construction of the first building permit.  Within twelve (12) months after issuance of  Developer shall complete construction of the the first building permit.  2    15. Opening of Developer Improvements "Conforming Business Activities" shall  Within thirty (30) days afteri issuance ofa certificate of occupancy.  for Business. commence.  17. Right of First Refusal. City shall have a Right ofFirst Refusal to acquire the Property as set forth in Section 3G. 18. Release of Construction Covenants. City shall record the Release of Construction Covenants as set forth in Section 2M and  Foraj period of fifty (50) years from Effective  Date of Agreement.  Ina accordance with the DDA.  Attachment No. 4.  3    ATTACHMENT NO.4  RELEASE OF CONSTRUCTION COVENANTS  Recorded. By and For the Benefit of And When Recorded. Return t0: Abdallah Qawadri 8188 North Chance Avenue Fresno, CA 93720  (Space Above for Recorder'sUse).  RELEASE OF CONSTRUCTION COVENANTS  THIS RELEASE OF CONSTRUCTION COVENANTS ("Release") is made by the City ofFowler, a California municipal corporation ("City"), in favor of Abdallah Qawadri  ("Developer"), as of the date set forth below.  RECITALS  A. City and Developer have entered into that certain Disposition and Development Agreement dated October 2021 ("DDA") concerning the development of certain real property situated in the City of Fowler, California as more fully described in Exhibit A attached hereto and made a B. Asreferenced in Section 2M oft the DDA, City is required to furnish Developer or its successors with a Release of Construction Covenants upon completion of construction oft the Developer improvements, which Release is required to be in such form as toj permit it to be recorded in the Recorder's office of Fresno County. This Release is conclusive determination of satisfactory completion of the construction and development required by the DDA for the C. City has conclusively determined that such construction and development oft the Developer  part hereof.  Developer Improvements.  Improvements has been satisfactorily completed. NOW,THEREFORE, the City hereby certifies as follows:  1. The Developer Improvements to be constructed by Developer have been fully and satisfactorily completed in conformance with the DDA. Any operating requirements and all use, maintenance or nondiscrimination covenants contained in the DDA and other documents executed and recorded pursuant to the DDA shall remain in effect and enforceable according to 2. Nothing contained in this Release shall modify in any other way any other provisions of  their terms. the DDA. 202_.  IN WITNESS WHEREOF, the City has executed this Release this day of  4    CITY OF FOWLER, a California municipal corporation  By:  Wilma Quan, City Manager  ATTEST:  City Clerk  APPROVED BY DEVELOPER: ABDALLAH QAWADRI  Abdallah Qawadri  5    Exhibit A  LEGAL DESCRIPTION  NORTH CITY OWNED PARCEL AT VINE AND 7TH  THE LAND REFERRED TO HERIN BELOW IS SITUATED IN THE CITY OF FOWLER, COUNTY OF FRESNO, STATE OF CALIFORINIA AND IS DESCRIBED AS FOLLOWS: PARCEL 10 OF PARCEL MAP NO. 97-1 MAP THEREOF FILED DECEMBER 26, 1997IN BOOK 58 OF PARCEL MAPS ATPAGE 52, FRESNO COUNTY RECORDS  SOUTH CITY OWNED PARCEL AT VINE AND 7TH  THE LAND REFERRED TO HERIN: BELOW IS SITUATED IN THE CITY OF FOWLER, COUNTY OF FRESNO, STATE OF CALIFORINIA AND IS DESCRIBED AS FOLLOWS: PARCEL 2 OF PARCEL MAPI NO. 97-1 MAP THEREOF FILED DECEMBER 26, 1997IN BOOK 58 OF PARCEL MAPS ATPAGE 52, FRESNO COUNTY RECORDS  6    ATTACHMENT NO.5  NOTICE OF REVERSIONARY INTEREST  Recorded. By and. For the Benefit of, And When Recorded Return to: CITY OF FOWLER 128 South 5th Street Fowler, California 93625 ATTN: City Clerk  (Space Above for Recorder's Use)  NOTICE OF REVERSIONARY INTEREST APNs 343-233-02ST and 343-233-03ST  RECITALS  WHEREAS, the City ofFowler, a California municipal corporation ("City"), and Abdallah Qawadri CDesehper.CDeeper), entered into that certain Disposition and Development Agreement dated October 2021 ("DDA") concerning the development of certain real property situated in the City ofl Fowler, County of Fresno, State of California (Property")as more fully described in Exhibit A attached hereto and made a part hereof; and  WHEREAS, pursuant to Section 2 oft the DDA, Developer failed to complete certain Improvements by specified dates or otherwise failed to timely cure a breach oft the DDA, and  therefore Title to the Property has reverted back to City. Property and City intends to exercise all rights to the Property.  NOW,1 THEREFORE, City does hereby give notice that Title has reverted to City for the IN WITNESS WHEREOF, City has duly executed this instrument this day of  202_.  CITY OF FOWLER By:  Wilma Quan, City Manager    Exhibit A  LEGAL DESCRIPTION LEGAL DESCRIPTION  NORTH CITY OWNED PARCEL AT VINE AND 7TH  THE LAND REFERRED TO HERIN BELOW IS SITUATED IN THE CITY OF FOWLER, COUNTY OF FRESNO, STATE OF CALIFORINIA AND IS DESCRIBED AS FOLLOWS: PARCEL 1 OF PARCEL MAP NO. 97-1 MAP THEREOF FILED DECEMBER 26, 1997IN BOOK 58 OF PARCEL MAPS AT PAGE 52, FRESNO COUNTY RECORDS  SOUTH CITY OWNED PARCEL AT VINE AND 7TH  THE LAND REFERRED TO HERIN BELOW IS SITUATED IN THE CITY OF FOWLER, COUNTY OF FRESNO, STATE OF CALIFORINIA AND IS DESCRIBED AS FOLLOWS: PARCEL 2 OF PARCEL MAP NO. 97-1 MAP THEREOF FILED DECEMBER 26, 1997IN BOOK 58 OF PARCEL MAPS AT PAGE 52, FRESNO COUNTY RECORDS    BSVOHIVIS +3ONVBINE    -