Loading...
HomeMy WebLinkAboutAGR-7938 - D.R. HORTON LOS ANGELES HOLDING COMPANY, INC. & FIRST AMERICAN TITLE - ESCROW INSTRUCTIONS7yo8Hto8 Aqg- ESCROW INSTRUCTIONS AGREEMENT This ESCROW INSTRUCTIONS AGREEMENT (this "Agreement") is made as of this day of ' "" J , 2026, by and among D.R. HORTON LOS ANGELES HOLDING COMPANY, INC., a California corporation ("DR Horton"), CITY OF ORANGE, a municipal corporation ("City"), and FIRST AMERICAN TITLE COMPANY ("Escrow Holder"), with respect to the facts set forth in the Recitals below. DR Horton and City are sometimes collectively referred to herein as the "Parties." RECITALS : A. City and MILAN REI X, LLC, a California limited liability company ("Milan") will enter into an Agreement Regarding Dedication (the "Dedication Agreement"), whereby Milan will grant to City fee title in Parcel 2 of Parcel Map 2021-187 ("Parcel 2")pursuant to a grant deed (the "Grant Deed"). Pursuant to the Dedication Agreement, City will require that DR Horton deposit into an escrow account the Escrowed Endowment Funds (defined below) pursuant to the Conservation Easement (defined below) and the Endowment Agreement (defined below)prior to City's execution of a certificate of acceptance attached to the Grant Deed Certificate of Acceptance") and subsequent recording of the Grant Deed in the Official Records of Orange County, California("Official Records"). B. City and RIVERS & LANDS CONSERVANCY, a California non-profit public benefit corporation("RLC") will enter into a Conservation Easement Deed (the"Conservation Easement"), whereby City will grant to RLC a conservation easement over an approximately 2.3 acre portion of Parcel 2 (the"Easement Area"). Pursuant to the Conservation Easement, RLC is entitled to: (i)certain funds for RLC's costs, and the costs of RLC's obligations under the Conservation Easement for the first three (3) years ("Initial Financial Requirement"), and(ii) a non-wasting endowment ("Endowment") for RLC's obligations under the Conservation Easement, in perpetuity. C. DR Horton and RLC will enter into an Endowment Management Agreement(the Endowment Agreement"), whereby DR Horton will agree to pay the Initial Financial Requirement and the Endowment on behalf of RLC (the"Escrowed Endowment Funds"), to be managed and administered in accordance with the terms of the Endowment Agreement. The Conservation Easement, Endowment Agreement, and Dedication Agreement are sometimes collectively referred to herein as the "Conservation Agreements". D. The Parties now agree to establish an escrow account in order to secure DR Horton's payment of the Escrowed Endowment Funds pursuant to the Conservation Agreements. E. Capitalized terms not otherwise defined in this Agreement shall have the meanings given to such terms in the Conservation Agreements. 4909-3 23 7-876 5.2.3 91567.00004 AGREEMENT : NOW, THEREFORE, in consideration of and in reliance on the mutual promises and undertakings herein made and made in the Conservation Agreements and the mutual benefits to be derived therefrom, DR Horton, City, and Escrow Holder agree as follows: 1.Escrow Account. Upon Escrow Holder's receipt of the Escrowed Endowment Funds, Escrow Holder is hereby instructed by the Parties to hold the Escrowed Endowment Funds for deposit into an interest-bearing escrow account (the "Escrow Account") with a financial institution of Escrow Holder's choice(but subject to the Parties' reasonable approval), until Escrow Holder's receipt of written confirmation from City, which may be given via email, that the Conservation Easement has been recorded in the Official Records ("Release Notice"). All interest accruing on the Escrowed Endowment Funds while in the Escrow Account shall accrue to RLC's benefit. Pursuant to the Dedication Agreement, the reasonable fees and charges of Escrow Holder with respect to the holding and administering of the Escrow Account shall be paid by DR Horton when due after DR Horton's receipt of periodic invoices from Escrow Holder. 2.Disbursement of Escrow Funds. Upon Escrow Holder's receipt of the Release Notice, Escrow Holder shall release to RLC the Escrowed Endowment Funds. In the event i) the Escrowed Endowment Funds still remain deposited with Escrow Holder and (ii) Escrow Holder has not received a Release Notice within one(1)year of the date that is the latest to occur of the full execution of: (i)this Agreement, (ii) the Conservation Easement, (iii) the Endowment Agreement, or(iv) the Dedication Agreement(the "Outside Termination Date"), Escrow Holder shall release the Escrowed Endowment Funds to RLC within three (3) business days after the expiration of the Outside Termination Date. Notwithstanding the foregoing, in the event the Conservation Easement, the Endowment Agreement and the Dedication Agreement are not fully executed within two (2) years of the date of this Agreement,the Escrowed Endowment Funds shall be immediately returned to DR Horton. 3.Escrow Holder Duties and Limitations. a) Governing Agreement. The duties and responsibilities of Escrow Holder hereunder with respect to the matters described herein shall be determined solely by the express provisions of this Agreement and no other or further duties or responsibilities shall be implied. Escrow Holder shall not have any liability under, nor duty to inquire into the terms and provisions of any agreement or instructions, other than as expressly contemplated by this Agreement. b) Reliance. Escrow Holder may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties. Escrow Holder shall be under no duty to inquire into or investigate the validity, accuracy or content of any such document. c) Banking Failure. Provided that Escrow Holder has deposited the Escrowed Endowment Funds in accordance with the provisions of Section 1 hereof, 2 4909-3237-87652 391567 00004 Escrow Holder shall not be liable and shall be held harmless for(i) any losses of the Escrowed Endowment Funds caused by a failure of any banking institution with whom the Escrowed Endowment Funds have been deposited, and (ii)the performance of the investment and/or institution in which the Escrowed Endowment Funds are deposited. d) Liability. Escrow Holder shall not be liable for any action taken or omitted by it in good faith unless a court of competent jurisdiction determines that Escrow Holder's willful misconduct was the primary cause of any loss to the Parties. In the administration of the Escrowed Endowment Funds hereunder, Escrow Holder may execute any of its powers and perform its duties hereunder directly or through agents or attorneys and may consult with counsel, accountants and other skilled persons to be selected and retained by it. Escrow Holder shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the advice or opinion of any such counsel, accountants or other skilled persons. e) Supplement Instructions. This Agreement constitutes escrow instructions to Escrow Holder. The Parties agree to execute, deliver and be bound by any reasonable or customary supplemental escrow instructions of Escrow Holder or other instruments as may reasonably be required by Escrow Holder in order to consummate the transaction contemplated by this Agreement. Any such supplemental instructions shall not conflict with, amend or supersede any portions of this Agreement. To the extent of any inconsistency between the provisions of such supplemental instructions and the provisions of this Agreement,the provisions of this Agreement shall control. f) Action. If Escrow Holder shall be uncertain as to its duties or rights hereunder or shall receive instructions, claims or demands from any party hereto which. in its opinion, conflict with any of the provisions of this Agreement, it shall be entitled to refrain from taking any action and its sole obligation shall be to keep safely all Escrowed Endowment Funds held in escrow until it shall be directed otherwise in writing by the Parties hereto, by a final order or judgment of a court of competent jurisdiction, or by a final decision pursuant to binding arbitration. g) Successor. Any corporation into which Escrow Holder in its individual capacity may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which Escrow Holder in its individual capacity shall be a party, or any corporation to which substantially all the corporate trust business of Escrow Holder in its individual capacity may be transferred, shall be Escrow Holder under this Agreement without further act. 4.Indemnification. In the event of any suit or claim made against Escrow Holder by any party to this Agreement, the Parties jointly and severally shall indemnify, defend and save harmless Escrow Holder from all loss, liability or expense(including the reasonable fees and expenses of in house or outside counsel) arising out of or in connection with (i) its execution and performance of this Agreement, except to the extent that such loss, liability or expense is due to the negligence or willful misconduct of Escrow Holder, or(ii) its following any written instructions or other written directions executed by the Parties,except to the extent that its following any such instruction or direction is contrary to the terms hereof Anything in this 3 4909-3237-8765.2/391567 00004 Agreement to the contrary notwithstanding, in no event shall Escrow Holder be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits). The parties hereto acknowledge that the foregoing indemnities shall survive the resignation or removal of Escrow Holder or the termination of this Agreement. 5.Miscellaneous a) Notices. Any notice, consent, approval or disapproval to be given or other document to be delivered by any party to the other or others hereunder, shall be delivered in person or by Federal Express, or other private commercial delivery or courier service for next business day delivery, with postage prepaid, and addressed to the party for whom intended, as follows: If to DR Horton: D.R. Horton Los Angeles Holding Company, Inc. 980 Montecito Drive, Suite 300 Corona, California 92879 Attention: Barbara M. Scull; Thomas J. Reimers; Joseph E. Abdelkerim, Esq. Email: BMMurakami@drhorton.com; TJREimers@drhorton.com; JEAbdelkerim@drhorton.com With copies to: D.R. Horton, America's Builder Attention: Jonathon M. Pentecost Email: JMPentecost@drhorton.com D.R. Horton, America's Builder Attention: Lance M. Johnson, Esq. Email: LMJohnson@drhorton.com D.R. Horton, Inc. 1341 Horton Circle Arlington, Texas 76011 Attention: Mark Karnes, Esq. Email: MKarnes@drhorton.com If to City: City of Orange 300 E. Chapman Avenue Orange, CA 92886-1591 Attention: Director of Public Works 4 4909-3237-8765 2 391567 00004 If to Escrow Holder: First American Title Insurance Company 18500 Von Karman Avenue, Suite 600 Irvine, California Attention: Wendy Mendoza Phone: (949) 885-2413 Email: wmendoza@firstam.com Notice may also be given by electronic mail ("Email") to any party at the respective Email address given above, provided delivery of such Email transmission shall be confirmed by secondary notice within one (1) business day of the Email transmittal delivered in person or by Federal Express, other private commercial delivery or courier service for next business day delivery. An Email delivered after 5:00 P.M. Pacific Time on any business day or anytime on the weekend or a legal holiday shall be deemed delivered on the next business day. Any party hereto may from time-to-time, by written notice to the other, designate a different address which shall be substituted for the one above specified. Any notice shall be deemed served or delivered upon actual receipt or first attempted delivery(as shown by the records of the delivery service) at the address listed above. Any counsel designated above or any replacement counsel who may be designated respectively by either party or such counsel by written notice to the other party is hereby authorized to give notices hereunder on behalf of its respective client. b) Attorneys' Fees. In the event of the bringing of any action or suit by a party hereto against another party hereunder by reason of any breach of any of the covenants or agreements contained herein,then in that event, the prevailing party in such action or dispute, whether by formal judgment or out of court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including actual attorneys' fees. c) Entire Agreement and Amendments. This Agreement, together with the Purchase Agreement, constitutes the entire understanding between the parties hereto with respect to the transaction contemplated herein and supersedes any and all prior arrangements or understandings between the parties with respect thereto. This Agreement is intended to supplement and be consistent with, but not supersede,the terms of the Conservation Agreements. Should there be any inconsistency between the terms of this Agreement and the terms of the Conservation Agreements, unless otherwise specifically stated herein, the terms of the Conservation Agreements shall control. Any amendment or modification of the provisions of this Agreement shall only be effective upon execution and delivery, by all parties hereto, of a writing incorporating all of the terms of such amendment or modification. d) Time of the Essence. Time is of the essence in connection with each and every provision of this Agreement. 5 4909-3237-8765.2 391 567 00004 e) Successors. The provisions and covenants contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties hereto. f) Further Actions. The parties agree to execute such further documents, and take such further actions, as may reasonably be required to carry out the provisions of this Agreement. g) Validity of Provisions. In the event any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity or unenforceability shall not affect any other provisions of this Agreement but this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein and the same shall be enforceable to the fullest extent permitted by law. h) Counterparts. This Agreement may be executed in one or more counterparts and shall become effective when one or more counterparts have been signed by all of the parties; each counterpart shall be deemed an original but all counterparts shall constitute a single instrument. i) Business Days. In the event any date described in this Agreement relative to the performance of actions hereunder by DR Horton, City, and/or Escrow Holder falls on a Saturday, Sunday or legal holiday, such date shall be deemed postponed until the next business day thereafter. For purposes of this Agreement, "Business Days"are all days other than Saturday, Sunday or legal holidays. END OF TEXT; SIGNATURE PAGES FOLLOW] 6 4909-3237-8765.2 391567 00004 IN WITNESS WHEREOF, DR Horton, City, and Escrow Holder have executed this Agreement as of the date first written above. DR HORTON" D.R. HORTON LOS ANGELES HOLDING COMPANY, INC., a California corporation By: Name: `ro Title: 11.%iS1oi Tco SIGNATURE PAGES CONTINUE ON NEXT PAGE] 4909-3237-8765 2.391567.00004 CITY" CITY OF ORANGE, a municipal corporation By: el iK CVse4L) Name: R. Slater Title: Mayor j A 141)QABy: Pamela Coleman, City Clerk APPROVED AS TO FORM: By: Nat a ie Adourian, Cit ttomey SIGNATURE PAGES CONTINUE ON NEXT PAGE] 4909-3237-8765.2 391567.00004 2- ESCROW HOLDER" FIRST AMERICAN TITLE COMPANY By: e ppcZ Name:nd NendOtc. Its: Authorized Agent 4909-3237-8765.2/391567 00004 3-