CITY OF BELMONT
CITY COUNCIL AND BELMONT FIRE
PROTECTION DISTRICT BOARD OF
DIRECTORS
www.belmont.gov
1. ROLL CALL
2. PLEDGE OF ALLEGIANCE
3. REPORT FROM CLOSED SESSION
4. SPECIAL PRESENTATIONS
CITY COUNCIL REGULAR MEETING AGENDA
Tuesday, February 28, 2023
7:00 PM
City Council Chambers
City Hall, One Twin Pines Lane, Belmont, California
TELECONFERENCE PARTICIPANTS
Some Members may Participate Virtually
Being held under Gov. Code 54953(e)
The meeting will be broadcast live to Belmont residents on Comcast Cable Channel 27, streamed live via the City’s website at www.Belmont.gov. The public may also attend the meeting in the Chambers and address the Council from the Chambers. Social distancing must be practiced, and seating will be limited.
PUBLIC COMMENT:
To maximize time for live public comment, we encourage members of the public to provide comments by joining the Committee meeting via Zoom : For web, visit https://belmont-gov.zoom.us/ select “Join” and enter Meeting ID: 95745673035. Use the Raise Hand feature to request to speak. You may rename your profile if you wish to remain anonymous.
For dial- in comments, call *67 1-(669) 900-6833 (your phone number will appear on the live broadcast if *67 is not dialed prior to the phone number), enter Meeting ID: 95745673035, and press *9 to request to speak. All public comments are subject to a 3-minute time limit unless otherwise determined by the Committee Chair.
If you wish to submit written public comment, you may send an email to [email protected] before the council considers the item. Please indicate the agenda item topic or agenda item number you wish to comment on in your email’s subject line. Any public comment regarding agenda items that are received from the publication of the agenda through the meeting date will be made part of the meeting record but will not be read during the Council meeting.
1 A. 2023 Dr. Martin Luther King, Jr. Poetry & Essay Contest Winners Recite Winning Pieces
5. PUBLIC COMMENTS ON ITEMS NOT ON THE AGENDA
6. COUNCILMEMBER ANNOUNCEMENTS
7. CONSENT BUSINESS
A. Approval of Minutes
B. Monthly Financial Reports - January
C. Service Agreement Amendment with Regional Government Services Authority D. Belmont's Children's Outdoor Bill of Rights
E. Twin Pines Park Storm Water Capture Project Contract Amendment This portion of the meeting is reserved for persons wishing to address the Body on any City matter not on the agenda. The period for public comment at this point in the agenda is limited to 15 minutes, with a maximum of 3 minutes per speaker. Speakers who requested but did not receive an opportunity to speak during this comment period will be given an opportunity to address the Body later in the meeting. State law prohibits the Body from acting on non-agenda items.
Consent business items are considered to be routine in nature and will be enacted by one motion. There will be no separate discussion on these items unless a member or staf request specific items to be removed for separate action.
The City Attorney will read the title of ordinances to be adopted.
Recommendation: Approve Minutes as presented
Attachment(s):
Minutes of February 13, 2023 Special Meeting Commission Interviews Minutes of February 14, 2023 Regular Meeting
BFPD Meeting Minutes of February 14, 2023
Minutes of February 24, 2023 Special Meeting Commission Interviews Recommendation: Motion to Receive Monthly Financial Reports Attachment(s):
Monthly Financial Report - January
Recommendation: Adopt a resolution authorizing the City Manager to negotiate and execute Amendment No. 1 to the Service Agreement with Regional Government Services Authority (RGS) for payroll services in the amount of $90,000, for a total not-to-exceed amount of $140,000
Attachment(s):
Staff Report
Resolution
Recommendation: Adopt a motion approving the Children's Outdoor Bill of Rights for the City of Belmont
Attachment(s):
Staff Report
Resolution
Children's Outdoor Bill of Rights
Recommendation: Adopt a resolution authorizing the City Manager to execute an amendment 2 F. Side Letter Agreement #2 between the City of Belmont and the Belmont Police Officers’ Association
G. State Legislative Advocacy for the City of Belmont 2023 Update
8. PUBLIC HEARINGS (none)
9. GENERAL BUSINESS
A. Disposition Development and Loan Agreement with Linc-Hill Street, L.P., for an Affordable Housing Project at 876, 884, 898, and 900 El Camino Real at Hill Street B. Council Intergovernmental Assignments for Calendar Year 2023-Update to the contract with Craftwater Engineering, Inc. for additional services to include archaeological testing based on the approved Archaeological Testing Plan and prepare an Archaeological Testing Results Report for an additional amount of $85,070, for a not-toexceed amount of $998,404.00 Attachment(s):
Staff Report
Resolution
Attachment B - Scope of Work for Tribal...and Archaeological Testing Program Recommendation: Adopt a resolution approving side letter agreement #2 between the City of Belmont and the Belmont Police Officers’ Association
Attachment(s):
Staff Report
Resolution
BPOA Side Letter Agreement_ February 2023
Recommendation: Motion to reaffirm Belmont’s State and Federal Legislative Platform as presented
Attachment(s):
Staff Report
2023 Belmont Legislative Platform Draft
General Business items are considered separately, typically in the order listed. The chair will call for public comment on each item when the body considers the item.
Recommendation: Adopt a Resolution 1) authorizing the City Manager to complete negotiations and enter into a Disposition Development and Loan Agreement (DDLA) between the City of Belmont and Linc-Hill Street, L.P. for development of a 37-unit affordable housing project, and 2) authorizing the City Manager to prepare and execute all necessary implementing agreements and documents consistent with the material terms presented to Council, and 3) find the project exempt from CEQA under Government Code Section 65913.4(j)
Attachment(s):
Staff Report
Resolution
Project Plans
Draft DDLA
Recommendation: Motion to approve changes to City Council Intergovernmental Assignments for calendar year 2023
3 C. Appointment to City Commissions and Committee
D. Report on Mid-Year Financial Results as of December 31, 2022
10. BRIEF VERBAL REPORTS FROM MEMBERS AND STAFF
11. MATTERS OF INTEREST/CLARIFICATION
12. ADJOURNMENT
Attachment(s):
Staff Report
2023 ASNMNT
Recommendation: (1) Appoint at least two residents to the Planning Commission; (2) Appoint at least two residents as voting members and up to two non-voting youth members to the Parks and Recreation Commission;
(3) Consider appointing one resident to the Measure I Committee Attachment(s):
Staff Report
Resolution
Recommendation: Adopt resolutions amending the City of Belmont and Belmont Fire Protection District (BFPD) Fiscal Year (FY) 2023 Budgets Attachment(s):
Staff Report
COB Resolution
BFPD Resolution
Financial Reports
Presentation
A. Verbal report from Councilmembers on Intergovernmental (IGR) and Subcommittee Assignments
B. Verbal report from City Manager
Items in this category are for discussion and direction to staf only. However, Council/Board may take final action on an item if there is no need for additional staf analysis.
If you need assistance to participate in this meeting, please contact the City Clerk at (650) 595-7413. Notification in advance of the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.
Meeting information can also be accessed via the internet at:www.belmont.gov. All staf reports will be posted to the web in advance of the meeting, and any writings or documents provided to a majority of the City Council/District Board or Commission regarding any item on this agenda will be made available for public inspection in the City Clerk's Of ice, One Twin Pines Lane, during normal business hours and at the Council Chambers at City Hall, Second Floor, during the meeting. 4 MEETING MINUTES OF CITY OF BELMONT CITY COUNCIL AND BELMONT
FIRE PROTECTION DISTRICT BOARD OF DIRECTORS
EOC 2nd Floor City Hall, One Twin Pines Lane, Belmont, California MONDAY, FEBRUARY 13, 2023
ITEMS OF BUSINESS
CALL TO ORDER: 5:30 PM
ATTENDED BY COUNCILMEMBERS: Latimerlo, Pang-Maganaris, Hurt, Mates ABSENT: McCune
GENERAL BUSINESS
Councilmembers discussed the interview process and conducted interviews of the following:
Planning Commission candidates:
Walter Chen
Mark Gurevich
Peter Meier
Parks and Recreation Candidate
Nicki Fox
Linda Howard
Craig Michaels
Trena Patton
Kristin Pene
Youth (Non-Voting) Commissioners:
Alexander Adamek
Edward Kogan
Aiden Lee
Rowen Sheng
ADJOURNMENT at this time being 8:00 PM
Jozi Plut
City Clerk
5 MEETING MINUTES OF CITY OF BELMONT CITY COUNCIL AND BELMONT
FIRE PROTECTION DISTRICT BOARD OF DIRECTORS
CITY COUNCIL REGULAR MEETING AGENDA
City Council Chambers
City Hall, One Twin Pines Lane, Belmont, California
TUESDAY, FEBRUARY 14, 2023
CALL TO ORDER: 7:00 PM
ROLL CALL
COUNCILMEMBERS PRESENT: Latimerlo, Pang-Maganaris, McCune, Mates COUNCILMEMBERS ABSENT: Hurt
PLEDGE OF ALLEGIANCE
Led by Matt Turturici, Deputy Chief San Mateo Consolidated Fire Department.
REPORT FROM CLOSED SESSION
City Attorney Rennie stated that no closed session was held.
SPECIAL PRESENTATIONS
Black History Month Proclamation
Mayor Mates read the proclamation and presented it to ShaRon Heath and the members of Voice of Recovery. Ms. Heath thanked the Council for recognizing Black History Month.
Proclamation Honoring George Metropulos
Mayor Mates read the proclamation.
Belmont Children’s Outdoor Bill of Rights
Danielle Giuliacci Parks and Recreation Youth and Teen Recreation Coordinator, provided an overview of the program, defining it’s purpose and intent. She outlined next steps, stating that the Bill of Rights will be piloted in the Belmont Youth Summer Program CAMP SOAR 2023. He noted that the program is fluid and subject to amendments as it is implemented.
Councilmembers provided positive feedback and made suggestions to reach out to local schools for advocacy.
Public Comments provided by Givliano Carlini and Thalia.
Mayor Mates concluded the presentation.
PUBLIC COMMENTS ON ITEMS NOT ON THE AGENDA
Comments provided by Givliano Carlini commented on the modes of transportation on Alameda de las Pulgas.
Combined Agency Meeting Minutes
February 14, 2023
Page | 1
6 Combined Agency Meeting Minutes
February 14, 2023
Page | 2
COUNCILMEMBER ANNOUNCEMENTS
Councilmember McCune commented on recent meetings he was absent from due to work related commitments; he noted regret not having the opportunity to vote on the Housing Element. He commented a Comcast outage which caused disruption with communications channels earlier in the day.
Councilmember Latimerlo, commented that the Domini Hoskins Black History Museum remains open until end of February.
Mayor Mates announced the open recruitment for the Measure I Committee, she thanked the community for participation in at community events including the Lunar New Year celebration, Sweetheart dance, and students who submitted their writings for the Martin Luther King Jr. Essay and Poetry Contest, and reminded the community visit the City’s website for upcoming events.
CONSENT BUSINESS
Resolution 2023-011 Finding That The COVID-19 Statewide Emergency Remains In Effect To The End Of The Month And That State And Local Officials Continue To Recommend Measures To Promote Social Distancing And Directing The Council’s Citizen Advisory Bodies To Make Consistent Findings
Approved Minutes of City Council Special and Regular Meeting December 13, 202,2 City Council Special and Regular Meeting January 24, 2023, City Council Special and Regular Meeting January 30, 2023, City Council Special Meeting – Commission Interviews 1st Round January 31, 2023, BFPD Meeting Minutes December 13, 2022, BFPD Meeting Minutes January 10, 2023, BFPD Meeting Minutes January 24, 2023
Approved Monthly Financial Reports - December
Approved FY 2024 Budget Calendar
Approved Annual Investment Policy
Resolution 2023-012 Approving Plans And Specifications, Authorizing Advertisement For Sealed Bids, Authorizing The City Manager To Execute A Contract With The Lowest Responsible Bidder For An Amount Not To Exceed $410,000 Plus A Ten Percent Construction Contingency For The Davey Glen Americans With Disabilities Act Upgrades Project, City Contract Number 2023-621, And (2) Authorizing The City Manager To Execute A Task Order With Pavement Engineering, Inc. To Provide Construction Support Services For The Davey Glen Americans With Disabilities Act Upgrades Project For An Amount Not To Exceed $123,495 Resolution 2023-013 Authorizing The City Manager To Execute A Task Order With Parisi Transportation Consulting To Provide Design, And Construction Support Services For The Belmont Village Bike And Pedestrian Project For An Amount Not To Exceed $115,320 Resolution 2023-014 Approving Plans And Specifications, Authorizing Advertisement For Sealed Bids, Authorizing The City Manager To Execute A Contract With The Lowest Responsible Bidder For An Amount Not To Exceed $85,000 Plus A Fifteen Percent Construction Contingency For The Demolition Of City Owned Properties Located At El Camino Real At Hill Street, APN’s 045- 163-070, 045-162-070, 045-162-080, 045-162-090, CCCN 2022-017 7 Combined Agency Meeting Minutes
February 14, 2023
Page | 3
Resolution 2023-015 approving side letter agreement #2 between the City of Belmont and AFSCME Local 829, amending and replacing provisions of the Memorandum of Understanding between the City and AFSCME related to wages, certification pay and health care benefits Resolution 2023-016 (1) approving plans and specifications, authorizing advertisement for sealed bids, and authorizing the City Manager to execute a contract with the lowest responsible bidder for an amount not to exceed $960,300 with a 10% construction contingency, (2) approving a task order for construction management services with Pavement Engineering, Inc. (PEI) for an amount not to exceed $199,170, and (3) approving appropriation of $886,190 from Sewer Collections Fund balance to Project 7074: Residential Gravity Replacement (Account 503-3-730-7074-9030) to cover the cost of construction and CM/Inspection services for the 2023 Sanitary Sewer Rehabilitation Project, City Contract Number 2023-620
Public Comments provided by, Givliano Carlini and Thalia In response to Councilmember Latimerlo, Public Works Director Brown explained the function of a Hawk Signal.
ACTION: On a motion made by Councilmember McCune and Seconded by Councilmember Pang-Maganaris the Consent Business was approved by a roll call vote. (4-1, Hurt absent)
PUBLIC HEARINGS
Adopt resolution making certain findings under Public Health and Safety Code Section 33433 for disposition of public property
Economic Development and Housing Manager Rose provided a brief background on the four parcels located on El Camino Real, on either side of Hill Street, noting that the City acquired the properties in 2009 and 2010 using monies earmarked for affordable housing. She explained that the City is disposing the assets to comply with housing law to build more affordable housing units.
Mayor Mates opened the public hearing no members of the public came forward.
Mayor Mates closed the public hearing.
ACTION: On a motion made by Council McCune and seconded by Councilmember Latimerlo Resolution 2023-017 Making Certain Findings Under Public Health and Safety Code Section 33433 for Disposition of Public Property Located on El Camino Real at Hill Street (APN’s 045- 163-070, 045-162-070, 045-162-080, 045-162-090) was approved by roll call vote. ( 4-1, Hurt absent)
GENERAL BUSINESS
Annual Transportation and Mobility Update for 2022
Public Works Director brown provide and update from the Parking and Traffic Safety Committee.
He explained the function of the committee and accomplishments in 2022.
Mayor Mates closed the item.
8 Combined Agency Meeting Minutes
February 14, 2023
Page | 4
BRIEF VERBAL REPORTS FROM MEMBERS AND STAFF
Verbal report from Councilmembers on Intergovernmental (IGR) and Subcommittee Assignments
None
Verbal report from City Manager
City Manager Oskoui stated that the opportunity to file FEMA and local claims for property damage from the earlier winter storms is concluding. He reminded residents that some local open space trails remain closed for evaluation and repair. He announced that more spots are available for the second annual police academy and that the SMC Fire is offering a community response training (CERT).
MATTERS OF INTEREST/CLARIFICATION
None
ADJOURNMENT at this time being 8:00 PM
9 REGULAR MEETING
BELMONT FIRE PROTECTION DISTRICT
February 14, 2023
MEETING MINUTES OF REGULAR MEETINGS OF DIRECTORSOF BELMONT FIRE
PROTECTION DISTRICT
Council Chamber, One Twin Pines Lane, Belmont, California TUESDAY, FEBRUARY 14, 2023
CALL TO ORDER 7:00 PM
ROLL CALL
COUNCILMEMEBERS PRESENT: Latimerlo, Pang-Maganaris, McCune, Mates COUNCILMEMBERS ABSENT: Hurt
ITEM APPROVED ON CONSENT BUSINESS
No Fire Protection District items on the agenda.
ADJOURNMENT at this time being 8:00 P.M.
.
Jozi Plut
District Secretary
10 MEETING MINUTES OF CITY OF BELMONT CITY COUNCIL AND BELMONT
FIRE PROTECTION DISTRICT BOARD OF DIRECTOR
Virtual only Via ZOOM
FRIDAY, FEBRUARY 24, 2023
ITEMS OF BUSINESS
CALL TO ORDER: 12:00 PM
ATTENDED BY COUNCILMEMBERS: Pang-Maganaris, McCune, Mates COUNCILMEMBERS ABSENT: HURT, LATIMERLO
GENERAL BUSINESS
No public Comment
Commission Interviews
Interview
Councilmembers conducted interviews of the following candidates for Parks and Recreation Commission and one vacant Measure I Committee position:
Parks and Recreation Commission candidate
Pat Cuviello
Measure I Committee
John Violet
ADJOURNMENT at this time being 12:25 PM
Jozi Plut
City Clerk
11 FISCAL YEAR 2023
MONTHLY FINANCIAL REPORT - JANUARY 31, 2023
HIGHLIGHTS
PERFORMANCE AT
A GLANCE REPORT • General Fund balance increased
compared to prior YTD
• Some funds experiencing cyclical
deficits
FUND RECAP AT A GLANCE REPORT
Notable Fund Balance Increase compared to prior YTD:
•General Fund
•Belmont Fire Protection District
•Afforable Housing Successor
•Planned Park
• Sewer Collection System
• Sewer Treatment
• Measure W
• Liability Insurance
Notable Fund Balance Decrease compared to prior YTD:
• Street Improvements
CASH DISBURSEMENTS &
PURCHASE ORDER
ACTIVITY REPORT
BUDGET VARIANCE
REPORT
• Management Discussion & Analysis
• Tax Trends
This report contains financial information which has not been reviewed or audited by an independent auditor, does not reflect the application of generally accepted accounting principles in all instances and is subject to future revision. This report has not been prepared with a view to informing an investment decision in any of the City’s bonds, notes or other obligations. Any projections, plans or other forward‐looking statements included in this report are subject to a variety of uncertainties that could cause any actual plans or results to differ materially from any such statement. The information herein is not intended to be used by investors or potential investors in considering the purchase or sale of the City’s bonds, notes or other obligations and investors and potential investors should rely only on information filed by the City on the Municipal Securities Rulemaking Board’s Electronic Municipal Market Access System for municipal securities disclosures and website, maintained on the World Wide Web at https://emma.msrb.org/ These financial reports are designed to provide a general overview of the City of Belmont’s interim finances. Questions concerning any information provided in these reports should be addressed to [email protected] or for additional information regarding the City’s financial activities, including past award winning audited financial statements, transparency efforts and best practices please visit the City at www.belmont.gov. 12 City of Belmont
Performance at a Glance
Results for the Period Ended January 31, 2023
(000's)
6/30/2013 $6,200 Audited
6/30/2014 $8,204 Audited
6/30/2015 $9,049 Audited
6/30/2016 $9,177 Audited
6/30/2017 $11,128 Audited
6/30/2018 $11,325 Audited
6/30/2019 $14,846 Audited
6/30/2020 $13,637 Audited
6/30/2021 $13,398 Audited
6/30/2022 $18,013 Audited
1/31/2023 $27,093 Unaudited
* excludes Measure I
\0
The General Fund balance is $27.1 million, a $9.1 million increase compared to amount at the prior fiscal year end. The increase compared to the 6/30/22 balance was primarily due to the receipt of the second and last tranche of one‐time $3.2 million in ARPA Federal Coronavirus State and Local Fiscal Recovery Funds, a $1.5 million VLF reimbursement due to the shortfall from two years prior, transient occupancy tax recovering from the prior year, as well as the timing of property tax collections received in December.
General Fund
Fund Balance ‐ YTD Fund Deficits
As shown on the Fund Recap at a Glance (page 3) the Recreation Fund, Street Maintenance, Library Bond Debt Service, and Facilities Management Fund have deficits and are expected to be eliminated in a future period.
General Fund Balance Trends*
$0
$2
$4
$6
$8
$10
$12
$14
$16
$18
$20
$22
$24
$26
$28
$30
General Fund Balance Trend
(in millions)
June January
$0 $20 $40 $60 $80
Budget
Expenditures
Actual
Expenditures
Budget
Revenues
Actual
Revenues
All Funds Revenues & Expenditures
YTD Comparison (in millions)
46%
44%
4%
4% 2%
Capital Improvement Plan
Streets Sewer
Technology Recreational Facilities
Parks & Open Space
2 13
Audited Unaudited PY YTD
Fund Fund Balance YTD YTD PY YTD YTD YTD PY YTD Fund Balance Fund Balance Fund Name 06/30/22 Budget Actual (Under) % Actual Budget Actual Under % Actual 01/31/23 01/31/22 (1) (2) Over (3) (Over) (1)+(2)‐(3)
GENERAL FUND
101 General $18,013 $18,062 $21,843 $3,781 121% $16,188 $16,512 $12,762 $3,749 77% $11,947 $ 27,093 17,696 102 Measure I 2,938 1,266 986 (280) 78% 889 3,149 526 2,624 17% 737 3,398 3,903
SPECIAL REVENUE FUNDS
205 Recreation (0) 2,276 1,067 (1,209) 47% 785 2,244 2,070 174 92% 1,540 (1,004) (730) 206 Library Maintenance & Operation 836 177 162 (15) 91% 152 420 196 224 47% 222 802 892 207 Athletic Field Maintenance 376 53 74 21 141% 70 158 40 117 25% 38 410 409 208 City Tree 297 6 7 1 122% 6 43 24 19 55% 25 281 307
209 Senior Services Donation 90 2 1 (1) 45% 3 0 0 0 N/A 0 91 89 210 Development Services 1,084 3,224 2,539 (685) 79% 2,422 3,312 2,772 540 84% 2,591 852 208 212 General Plan Maintenance 1,305 292 428 136 146% 125 601 80 521 13% 0 1,653 863 223 Belmont Fire Protection District 16,217 8,520 8,858 338 104% 6,254 7,190 7,092 98 99% 8,846 17,983 12,816 225 Police Grants and Donations 33 0 0 0 849% 0 3 3 (0) 116% 1 30 34 227 Supplemental Law Enforcement ‐ 104 117 13 113% 107 96 102 (6) 106% 139 15 (32)231 Street Maintenance ‐ 1,377 763 (614) 55% 589 1,420 1,305 115 92% 1,138 (542) 153 232 RMRA Street Project ‐ 353 309 (44) 87% 267 449 9 440 2% 619 300 (28) 233 Measure W 1,457 322 352 30 109% 416 187 0 187 0% 0 1,809 397 234 Street Improvements 905 927 970 43 105% 1,735 1,384 803 581 58% 1,859 1,072 2,314237 Traffic Impact 200 475 2 (473) 0% 200 0 0 0 N/A 0 202 200 239 Public Art 396 184 3 (181) 2% 0 0 0 0 N/A 0 399 0
275 Affordable Housing Successor 6,468 2,503 2,992 489 120% 48 1,538 304 1,234 20% 293 9,156 3,443 277 Inclusionary Housing 2,452 463 1 (461) 0% 0 96 0 96 0% 0 2,453 2,385 Total Special Revenue 32,117 21,259 18,646 (2,613) 88% 13,178 19,140 14,799 4,341 77% 17,311 35,965 23,720
CAPITAL PROJECT FUNDS
308 General Facilities 725 22 6 (16) 26% 0 217 5 211 2% 85 725 742 310 Infrastructure 2,810 710 624 (86) 88% 1 1,492 854 638 57% 180 2,580 2,122 312 Comcast PEG Program 396 0 3 3 1009% 33 70 0 70 0% 0 399 363 341 Planned Park 1,989 817 423 (393) 52% 0 438 379 59 87% 450 2,034 (93)342 Park Impact 327 1,641 284 (1,357) 17% 0 765 151 614 20% 0 460 1,397 343 Open Space 164 5 4 (1) 82% 0 75 38 36 51% 8 130 198 704 Special Assessment Districts 308 0 2 2 924% 0 0 0 0 N/A 0 310 308 Total Capital Projects 6,719 3,195 1,347 (1,848) 42% 34 3,056 1,428 1,628 47% 724 6,639 5,037
DEBT SERVICE & OTHER FUNDS
406 Library Bond Debt Service 270 393 347 (46) 88% 337 399 654 (254) 164% 650 (37) (46) 501‐505 Sewer Collection System 25,616 9,206 8,253 (953) 90% 7,058 9,396 6,617 2,779 70% 5,708 27,252 21,667 507 Sewer Treatment 25,992 1,839 1,607 (233) 87% 1,573 2,493 3,004 (511) 120% 2,948 24,594 22,926 525 Storm Drainage Enterprise 2,588 1,286 662 (624) 51% 541 1,707 967 740 57% 1,082 2,283 3,045530 Solid Waste Management 1,766 319 303 (16) 95% 265 325 295 29 91% 248 1,774 1,640 570 Worker's Compensation 1,537 407 470 63 115% 429 413 651 (237) 157% 553 1,357 1,212571 Liability Insurance 3,386 410 (53) (462) ‐13% (1,378) 623 629 (7) 101% 508 2,705 1,489 572 Self Funded Vision ‐ 2 0 (2) 3% 6 3 (5) 8 ‐181% (4) 5 9 573 Fleet & Equipment Management 7,438 2,598 2,643 45 102% 2,980 2,841 2,510 331 88% 2,086 7,571 6,725 574 Facilities Management 0 1,282 1,305 22 102% 978 1,358 1,427 (68) 105% 1,232 (122) (216) 575 Benefit Prefunding 1,082 859 808 (52) 94% 790 765 917 (151) 120% 1,222 973 1,007 Total Debt & Other 69,676 18,602 16,344 (2,258) 88% 17,503 20,323 17,665 2,658 87% 16,586 68,355 59,458 Total All Funds $129,464 $62,384 $59,166 ($3,218) 95% $47,791 $62,179 $47,179 $15,000 76% $47,305 $141,450 $109,814Fund Types:General Fund ‐ Used to account for and report all financial resources not accounted for and reported in another fund.
Special Revenue Funds ‐ Used to account for and report the proceeds of specific revenue sources that are restricted or committed to expenditure for specific purposes other than debt service or capital projects.
Capital Projects Funds ‐ Used to account for and report financial resources that are restricted, committed, or assigned to expenditure for capital outlays, including the acquisition or construction of capital facilities and other capital assets.
Debt Service & Other Funds ‐ Includes funds used to account for and report financial resources that are restricted, committed, or assigned to expenditure for principal and interest; funds used to finance and account for special activities and services performed by a designated department for other departments in the City on a cost reimbursement basis; and funds to account for operations financed and operated in a manner similar to a private business enterprise with the intent that the cost of providing goods and services is primarily financed through user charges; and funds used to account for assets held by the City as an agent.
Variance
Revenues Expenditures
Variance
City of Belmont
Fund Recap at a Glance
Results for the Period Ended January 31, 2023
(000's)
3 14
City of Belmont
Budget Variance Report
General Fund / All Other Funds
Results for the Period Ended January 31, 2023
(000's)
General Fund All Other Funds
Year to Date (YTD) Annual PY YTD Year to Date (YTD) Annual PY YTD Budget Actual Variance % Budget Actual Budget Actual Variance % Budget Actual
REVENUES
Taxes $11,929 $13,549 $1,620 114% $20,449 $9,367 $11,011 $10,428 ($582) 95% b $18,875 $12,104 Property Taxes 3,955 3,684 (271) 93% 6,780 2,994 8,444 8,323 (121) 91% 14,476 10,116 Sales Taxes 2,413 1,932 (481) 80% 4,136 1,796 1,997 1,602 (394) 71% 3,423 1,467 Other Taxes 5,561 7,932 2,372 143% 9,533 4,577 570 503 (67) 99% 977 521 Licenses and permits 655 557 (99) 85% 1,124 474 1,084 1,303 220 120% 1,858 1,016 Intergovernmental 2,033 3,521 1,487 173% 3,486 3,392 2,474 2,086 (388) 84% c 4,240 1,485 Charge for services 2,604 2,584 (20) 99% 4,464 2,397 23,260 19,183 (4,077) 82% d 39,874 17,520 Fines and forfeits 96 70 (26) 73% 165 ‐ 78 ‐ ‐ N/A ‐ ‐ 547 1,546 999 282% 938 435 311 1,453 1,142 467% 534 183 Miscellaneous 197 16 (181) 8% a 337 45 115 (77) ‐ (193) 67% e 198 (721) Other financing sources ‐ ‐ ‐ N/A ‐ ‐ 2,281 2,947 666 129% 3,910 17 Operating transfers in ‐ ‐ ‐ N/A ‐ ‐ ‐ 3,787 (3,787) f ‐ 6,491 Total Revenues 18,062 21,843 3,781 121% 30,963 16,188 44,322 37,323 (6,999) 84% 75,981 31,603
EXPENDITURES
General government 4,091 3,266 (825) 80% 7,013 2,998 4,745 4,722 (23) 100% 8,134 4,385 Public safety 8,551 8,330 (221) 97% 14,658 7,859 7,284 7,197 (86) 99% 12,486 8,986 Streets and utilities ‐ ‐ ‐ N/A ‐ ‐ 19,325 11,009 (8,316) 57% 33,129 12,972 Culture and recreation 1,292 1,166 (126) 90% 2,214 1,090 4,862 4,109 (753) 85% 8,335 3,359 Urban redevelopment ‐ ‐ ‐ N/A ‐ 4,400 2,245 (2,155) 51% 7,543 2,471 Debt service ‐ ‐ ‐ N/A ‐ ‐ 3,843 5,135 1,291 134% g 6,589 3,184 Operating transfer out 2,578 ‐ (2,578) 4,420 1,208 ‐ (1,208) 2,071 Total Expenditures 16,512 12,762 (3,749) 77% 28,306 11,947 45,668 34,417 (11,251) 75% 78,287 35,358 $1,550 $9,080 $32 $2,657 $4,242 ($1,345) $2,907 ($18,249) ($2,306) ($3,755) Management Discussion and Analysis
(Items with unfavorable budget variance more than $0.1 million) General Fund:
Revenues
Other Funds
Revenues
Other Funds
Expenditures
EXCESS OF REVENUES OVER
(UNDER) EXPENDITURES
Trends
Use of money and property
b) Taxes ‐ The budget variance is primarily due to the timing of semi‐annual property tax receipts received in December and April. d) Charges for Services ‐ Various in lieu/impact fees budgeted for are not materialized in the current reporting period. In addition, Sewer Use Fee (Collection & Treatment) is included as part of the City's Property Tax bill to be received semi‐annually, typically in December and April. e) Miscellaneous – This revenue is subject to an accounting adjustment during the fiscal year closing process related to claims liability. c) Intergovernmental ‐ The revenue will be received in a future reporting period and includes activities related to the prior fiscal year, which are subject to accounting adjustment. g) Debt Service ‐ Semi‐annual debt service on bonds were paid in August and January. f) Operating Transfers In – Budgeted operating transfers will be recorded at the end of the fiscal year based on actual results. a) Miscellaneous ‐ The budget variance is primarily due to the timing of the annual Crystal Springs Uplands School (CSUS) Public Service Fee, which will be received in a future reporting period. ** July TOT revenues received were for June activities and accrued to the previous FY. July revenues will be received in August. ‐$650
‐$450
‐$250
‐$50
$150
$350
$550
$750
$950
Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun
Thousands
Sales Taxes & TOT ‐ Monthly Comparison
Sales Taxes FY 22 Sales Taxes FY 23 TOT FY 22 TOT FY 23 $0
$2,000
$4,000
$6,000
$8,000
$10,000
$12,000
FY 13 FY 14 FY 15 FY 16 FY 17 FY 18 FY 19 FY 20 FY 21 FY 22 Thousands
Major General Fund Taxes ‐ 10‐year Trends
Prop Tax Sales Taxes TOT
4 15
City of Belmont
Disbursements & Purchase Order Activity Report
Results for the Period Ended January 31, 2023
Vendor Description Date No. Amount
ADP PAYROLL TAXES 01/13/2023 1/13/23 DAJ000007879 105,724.95 ADP PAYROLL TAXES 01/27/2023 1/27/23 DAJ000007884 92,381.92 BNY MELLON 2018 SEWER REVENUE BONDS DEBT SERVICE 1/30/23 DAJ000007931 502,875.00 BNY MELLON 2019 SEWER REVENUE BONDS DEBT SERVICE 1/30/23 DAJ000007932 409,225.79 BNY MELLON 2004 BONDS DEBT SERVICE 1/30/23 DAJ000007933 115,816.77 BNY MELLON 2016 SEWER REVENUE BONDS DEBT SERVICE 1/30/23 DAJ000007929 253,335.04 BNY MELLON 2016 SEWER REFUNDING BONDS DEBT SERVICE 1/30/23 DAJ000007930 121,107.31 CALPERS HEALTH PREMIUM‐JANUARY 1/5/23 DAJ000007919 169,627.75 CALPERS COB CONTRIBUTION PPE 12/10/22 1/10/23 DAJ000007921 109,489.52 CALPERS COB CONTRIBUTION PPE 12/24/22 1/20/23 DAJ000007924 108,856.69 CITY OF BELMONT EMPLOYEES PAYROLL 01/13/2023 1/13/23 DAJ000007881 416,163.09 CITY OF BELMONT EMPLOYEES PAYROLL 01/27/2023 1/27/23 DAJ000007883 401,995.41 CRAFTWATER ENGINEERING INC TWIN PINES PARK PROJECT 1/13/23 EFT00030676 106,988.34 FIRST FOUNDATION 2022 SEWER REFUNDING BONDS DEBT SERVICE 1/30/23 DAJ000007928 54,696.00 MISSION SQUARE DEF COMP ACCT#302442 1/27/23 DAJ000007925 89,550.96 SILICON VALLEY CLEAN WATER COB QTRLY CASH SHARE & FEBRUARY CONTRIBUTION 1/13/23 EFT00030655 463,023.04 Total Disbursements in Excess of $50,000 3,520,857.58 $ Total Count 16
Vendor Description Date No. Amount
WRA INC PROFESSIONAL SERVICES FOR OPEN SPACE MANAGEMENT PLAN 1/19/23 23 00030 52,591.00 Total Purchase Orders Issued in Excess of $50,000 52,591.00 $ Total Count 1
Disbursements Amounts Equal to $50,000 and Above
Purchase Order Amounts Equal to $50,000 and Above
5 16
Beginning Balance
December 31, 2022 Receipts Disbursements
Ending Balance
January 31, 2023
City of Belmont 105,739,825.33 $ 3,581,317.34 $ (4,470,229.98) $ 104,850,912.69 $ Belmont Fire Protection District 17,850,261.35 174,615.62 (47,548.86) 17,977,328.11 Total $ 3,755,932.96 123,590,086.68 $ (4,517,778.84) $ 122,828,240.80 $ -
Deposit Investments Pool Total
City of Belmont & Belmont Fire Protection District $ 633,614.17 $ 122,194,626.63 $ 122,828,240.80 -
Respectfully Submitted,
s/b Grace Castaneda
Grace Castaneda
City Treasurer
I certify that this report accurately reflects all investments of City of Belmont and Belmont Fire Protection District, and is in conformance with the adopted Investment Policy mandated by Government Code 53646. Furthermore, I certify to the best of my knowledge, sufficient investment liquidity and anticipated revenues are available to meet the Agency's budgeted expenditure requirement for the next six months.
CITY OF BELMONT
TREASURER'S REPORT
January-23
Balance Summary
Agency Receipts and Disbursements Summary
treasurer report 01-2023
17 Investment Type Issuer
Maturity
Date Par Amount Current Market Value Interest Total
Investment
Period Rate
Pricing
Source Manager
Deposit
General Account Wells Fargo 633,614.17 $ 633,614.17 $ Bank Bank Investments:
L.A.I.F.-POOL State of California Daily 114,810,358.90 112,673,652.93 232,012.60 90 days 2.425% LAIF LAIF L.A.I.F.-BONDS State of California Daily 7,384,267.73 7,246,841.03 14,922.37 90 days 2.425% LAIF LAIF Total 122,828,240.80 $ 120,554,108.13 $ 246,934.97 $
s/b Grace Castaneda
S/B John Violet
Investment Detail
CITY OF BELMONT
TREASURER'S REPORT
January-23
Jan‐22 Feb‐22 Mar‐22 Apr‐22 May‐22 Jun‐22 Jul‐22 Aug‐22 Sep‐22 Oct‐22 Nov‐22 Dec‐22 Jan‐23 L.A.I.F.‐POOL 84,634,892 86,774,892 83,344,892 92,612,365 99,512,365 101,582,365 96,162,851 96,412,851 94,372,851 94,252,429 95,052,429 114,502,429 114,810,359 L.A.I.F.‐BONDS 11,341,658 11,341,658 11,341,658 11,350,596 9,084,596 9,084,596 9,103,562 9,103,562 8,770,562 8,581,303 8,581,303 8,581,303 7,384,268 INTEREST RATE 0.234% 0.278% 0.365% 0.523% 0.684% 0.861% 1.090% 1.276% 1.513% 1.772% 2.007% 2.173% 2.425%
0.00%
0.50%
1.00%
1.50%
2.00%
2.50%
3.00%
$0
$20,000,000
$40,000,000
$60,000,000
$80,000,000
$100,000,000
$120,000,000
$140,000,000
City of Belmont Investment Portfolio Trends
RGS Amendment
STAFF REPORT
Meeting Date: February 28, 2023
Agency: City of Belmont
Staff Contact: Grace Castaneda, Finance Director, (650) 595-7436, [email protected] Agenda Title: Service Agreement Amendment with Regional Government Services Authority Agenda Action: Resolution
Recommendation
Adopt a resolution authorizing the City Manager to negotiate and execute Amendment No. 1 to the Service Agreement with Regional Government Services Authority (RGS) for payroll services in the amount of $90,000, for a total not-to-exceed amount of $140,000.
Strategic Focus Area
Fiscal and Organizational Sustainability
Background
Due to various personnel changes and vacancies, the City needed specialized services to assist with a variety of tasks in completing biweekly employee payroll. In August 2022, it was anticipated these services would be needed on an interim basis while the City was in the process of restructuring the payroll division.
The City engaged with Regional Government Services Authority (RGS), a public agency which serves the consulting, administrative and project management needs of local governments. RGS retains a staff which specializes in providing professional payroll support for small to mid-sized agencies throughout California and serves as consultants to the agency’s payroll staff or supplements existing payroll resources. RGS has extensive experience in all aspects of public agency payroll services, including payroll administration, submission of CalPERS retirement payroll contributions and various reporting requirements, such as State Controller’s yearly reports, and updates to various calendar year changes.
With the restructuring of the payroll division still underway and a newly created and approved Payroll Manager recruitment underway, the City continues to have a need for additional advisory and support services related to payroll administration.
Analysis.
Since engaging RGS in August 2022, staff has been working closely on many of the payroll services needed, which include, but are not limited to, the following:
• Facilitate the production and processing of accurate payroll; • Provide expertise and advise for best practices in agency payroll; • Training, coaching and mentoring of City payroll staff, as needed; • Provide immediate, ongoing consultative services for any Finance services as requested. 19
RGS Amendment
RGS is an independent consultant with specialized skills and expertise in the area of payroll administration services and assists the City on an as-needed basis with this essential function of the City’s operations.
In order to maintain the continuity of payroll administration, staff requests that City Council authorize an amendment to the Service Agreement with RGS in the amount of $90,000, as set forth in the proposed resolution accompanying this report, and contingent upon the availability of existing funds.
Alternatives
1. Continue the item for further discussion.
2. Take no action.
Attachments
A. Resolution
Fiscal Impact
☐ No Fiscal Impact
☒ Funding Source Confirmed: There are sufficient funds available in the General Fund (Account 101-1-401-8351) for this purpose.
Source: Purpose: Public Outreach:
Staff Discretionary Action Posting of Agenda
20
RESOLUTION NO. 2023 –
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BELMONT AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 1 TO THE
SERVICE AGREEMENT WITH REGIONAL GOVERNMENT SERVICES
AUTHORITY FOR CONTINUED PAYROLL SERVICES IN THE AMOUNT OF $90,000 FOR A TOTAL NOT-TO-EXCEED AMOUNT OF $140,000
WHEREAS, the City has a need for specialized services and expertise related to payroll services; and,
WHEREAS, Government Services Authority (RGS) has demonstrated expertise in these fields and has proposed to continue to provide such services; and, WHEREAS, the City engaged in Service Agreement No. 2022-37 with RGS for $50,000 to perform such services; and,
WHEREAS, due to a continued need for payroll services, the City is desirous of authorizing Amendment No. 1 to Service Agreement No. 2022-37 in the amount of $90,000.
NOW, THEREFORE, the City Council of the City of Belmont resolves as follows:
SECTION 1. The City Manager is authorized to negotiate and execute an Amendment to the Agreement purchasing continued payroll services from Regional Government Services Authority (RGS) for an amount not to exceed $90,000 for a total not-to-exceed amount of $140,000.
* * *
21
ADOPTED February 28, 2023 by the City of Belmont City Council by the following vote:
Ayes:
Noes:
Absent:
Abstain:
ATTEST:
City Clerk Mayor
APPROVED AS TO FORM:
City Attorney
22
Children's Otutdoor Bill of Rights - Staff Report
STAFF REPORT
Meeting Date: February 28, 2023
Agency: City of Belmont
Staff Contact: Danielle Giuliacci, Recreation Coordinator, (650)637-4715, [email protected]
Agenda Title: Adoption of Children’s Outdoor Bill of Rights for the City of Belmont Agenda Action: Motion
Recommendation
Adopt a motion approving the Children’s Outdoor Bill of Rights for the City of Belmont.
Strategic Focus Area
Quality of Life
Background
The Children’s Outdoor Bill of Rights (COBOR) was originated at a California Roundtable on Recreation, Parks, and Tourism in 2001. The California COBOR was officially endorsed in 2007 by California Governor Schwarzenegger, the California State Park and Recreation Commission, and the California State Alliance of the YMCA. Since then, 15 states and several cities have adopted their own COBORs based on the unique goals that city or state has for its children’s outdoor experiences.
The COBOR is a list of experiences that every child has the right to experience before entering high school or the age of 14. It is a public facing symbol of the overarching goals that a city or state has for its children’s outdoor experiences and a marketing tool that raises awareness of the importance of children’s participation outdoors and their connection to nature.
Analysis
Belmont Parks and Recreation staff collaborated with Belmont’s Youth Advisory Committee (YAC) to brainstorm a list of experiences every child in Belmont has the right to experience. After discussion, Parks and Recreation staff and the YAC created a list of 8 experiences for Belmont’s youth. This list was unanimously voted on and approved by all 18 YAC board members present at their December 15, 2022, meeting.
Belmont Children’s Outdoor Bill of Rights include the following principals in mind:
• Play in a safe, welcoming, and culturally affirming neighborhood, schoolyard, park, or open space • Follow a trail
• Walk, run, or bike to places close to home
• Connect with nature and wildlife by exploring outdoors • Gaze at the night sky
• Be a part of a team through outdoor recreational activities 23
Children's Otutdoor Bill of Rights - Staff Report
• Plant a seed for future generations to enjoy
• Learn how to protect and preserve the environment
This list was presented and discussed at the January 11, 2023, Parks and Recreation Commission Meeting and was unanimously approved by all 6 Commissioners. The Parks and Recreation Commission will review this list again in 2024 and periodically refine the principals based on the shared experiences, if needed.
Staff presented the 2023 COBOR list to City Council on February 14, 2023, for direction and feedback and is now submitting the list for adoption at tonight’s meeting.
Alternatives
1. Take No Action
Attachments
A. Resolution
Fiscal Impact
☒ No Fiscal Impact
☐ Funding Source Confirmed:
Source: Purpose: Public Outreach:
Staff Discretionary Action Posting of Agenda
24
RESOLUTION NO. 2023 –
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BELMONT ADOPTING THE CHILDREN’S OUTDOOR BILL OF RIGHTS
WHEREAS, the Children’s Outdoor Bill of Rights is a list of experiences every child has the right to experience before entering high school or at and above the age of 14; and, WHEREAS, Belmont Parks and Recreation Staff collaborated with Belmont’s Youth Advisory Committee to create a list of 8 outdoor experiences that Belmont children should have a right to experience; and,
WHEREAS, this list was presented at the January 11, 2023 Parks and Recreation Commission Meeting and was unanimously approved by all 6 Commissioners and then presented to City Council at their February 14, 2023 meeting.
NOW, THEREFORE, the City Council of the City of Belmont resolves as follows:
SECTION 1.: To approve the Children’s Outdoor Bill of Rights for the City of Belmont. * * *
ADOPTED February 28, 2023 by the City of Belmont City Council by the following vote:
Ayes:
Noes:
Absent:
Abstain:
ATTEST:
City Clerk Mayor
APPROVED AS TO FORM:
City Attorney
25 Play in a safe, welcoming, and culturally affirming
neighborhood, schoolyard, park, or open space
Follow a trail
Walk, run, or ride to places close to home
Connect with nature and wildlife by
exploring outdoors
Gaze at the night sky
Be a part of a team through outdoor
recreational activities
Plant a seed for future generations to enjoy
Learn how to protect and preserve
the environment
BELMONT CHILDREN'S
OUTDOOR
BILL OF RIGHTS
In which EVERY CHILD has the right to:
"Enhancing the Quality of Life for the Community"
26
Twin Pines Park Storm Water Capture Project Contract Amendment - Staff Report
STAFF REPORT
Meeting Date: February 28, 2023
Agency: City of Belmont
Staff Contact: Selena Lau, Public Works, 226-6901, [email protected] Agenda Title: Twin Pines Park Storm Water Capture Project Contract Amendment Agenda Action: Resolution
Recommendation
Adopt a resolution authorizing the City Manager to execute an amendment to the contract with Craftwater Engineering, Inc. for additional services to include archaeological testing based on the approved Archaeological Testing Plan and prepare an Archaeological Testing Results Report for an additional amount of $85,070, for a not-to-exceed amount of $998,404.
Strategic Focus Area
Infrastructure and Mobility
Background
On June 3, 2022, the City entered into an Architectural and Engineering Services Agreement with Craftwater Engineering, Inc. for the Twin Pines Park Storm Water Capture Project. This stormwater detention basin design project will result in the design of a new stormwater capture facility, or basin, within the Park that will attenuate flow from annual storms thereby reducing downstream flooding potential, provide for trash capture services, and trap sediment and debris in a centralized, maintenancefriendly system, for later removal. Detained Creek water can then be returned to Belmont Creek after it has been cleaned and after high water levels subside, thereby reducing frequency of the Creek spilling its banks as it sometimes does in the Harbor Industrial Area portion of the County, portions of which are subject to future annexation to the City. The proposed detention system would include an inlet diversion structure and pipe, trash capture, hydrodynamic separators, and outlet structure and pipes.
Analysis
As part of this project, the consultant must now conduct archaeological assessments to comply with the California Environmental Quality Act (CEQA) requirements. This task was not included in the original scope of work with Craftwater Engineering, Inc.
The cost of this work in the proposed Amendment to the contract is $85,070.
The tasks included are:
1. Preparation of an archaeological testing plan
2. Archaeological testing
3. Preparation of an Archaeological Testing Report
4. Laboratory analysis, curation, and reporting of artifacts, if needed 27
Twin Pines Park Storm Water Capture Project Contract Amendment - Staff Report The total project cost with the Amendment is $998,404.
Alternatives
1. Take No Action.
2. Refer back to staff for more information.
Attachments
A. Resolution
B. Scope of Work for Tribal Consultation Support & Archaeological Testing Program Fiscal Impact
☐ No Fiscal Impact
☒ Funding Source Confirmed: $85,070 budgeted from Account No. 525-3-730-6045- 9030/Storm Drain CIP Project
Source: Purpose: Public Outreach:
Staff Discretionary Action Posting of Agenda
28
RESOLUTION NO. 2023 –
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BELMONT
AUTHORIZING THE CITY MANAGER TO EXECUTE AN AMENDMENT TO THE CONTRACT WITH CRAFTWATER ENGINEERING, INC. FOR ADDITIONAL
SERVICES TO INCLUDE ARCHAEOLOGICAL TESTING BASED ON THE
APPROVED ARCHAEOLOGICAL TESTING PLAN AND PREPARE AN
ARCHAEOLOGICAL TESTING RESULTS REPORT FOR AN ADDITIONAL AMOUNT OF $85,070, FOR A NOT-TO-EXCEED AMOUNT OF $998,404.
WHEREAS, on June 3, 2022, the City Council approved a contract with Craftwater Engineering, Inc. for professional engineering services for the implementation of a storm water detention basin to alleviate flooding for an amount not to exceed $913,334; and, WHEREAS, additional services are required for the archaeological assessment of the site to comply with Section 106 of the National Historic Preservation Act and California Environmental Quality Act; and,
WHEREAS, funds in the amount of $85,070 for the project will be drawn from Account No. 525-3-730-6045-9030 /Storm Drain CIP Project.
NOW, THEREFORE, the City Council of the City of Belmont resolves as follows:
SECTION 1. Adopt a resolution authorizing the City Manager to execute an amendment to the contract with Craftwater Engineering, Inc. for additional services to include archaeological testing based on the approved Archaeological Testing Plan and prepare an Archaeological Testing Results Report for an additional amount of $85,070, for a not-to-exceed amount of $998,404.
* * *
ADOPTED February 28, 2023 by the City of Belmont City Council by the following vote:
Ayes:
Noes:
Absent:
Abstain:
29
ATTEST:
City Clerk Mayor
APPROVED AS TO FORM:
City Attorney
30
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BPOA Side Letter Agreement No. 2 - Staff Report
STAFF REPORT
Meeting Date: February 28, 2023
Agency: City of Belmont
Staff Contact: Laura Kirby, Acting Human Resources Director, (650) 595-7452, [email protected]
Agenda Title: Side Letter Agreement #2 between the City of Belmont and the Belmont Police Officers’ Association
Agenda Action: Resolution
Recommendation
Adopt a resolution approving side letter agreement #2 between the City of Belmont and the Belmont Police Officers’ Association.
Strategic Focus Area
Fiscal and Organizational Sustainability
Background
On December 14, 2021, the City Council adopted Resolution 2021-110, approving a Memorandum of Understanding (MOU) between the City and the Belmont Police Officers’ Association for the period July 1, 2021, through June 30, 2025. Said MOU, and the prior MOU, provide for a health and welfare plans for BPOA members, including a vision plan. The prior MOU called the City to make monthly contributions to a vision reimbursement account. Claims submitted for vision expenses incurred by members and their eligible dependents were reviewed and reimbursed by a dental/vision plan committee from the City funded reimbursement accountant.
The terms of the current MOU calls for the City to transition BPOA to a vision insurance plan, VSP on July 1, 2022, or as soon as reasonably possible thereafter. The MOU further states that the City and BPOA will meet and confer regarding the appropriate uses of any amounts remaining in the reimbursement plan after January 1, 2023. Having met and conferred in good faith; and having reached a tentative agreement as to the disposition of the remaining reimbursement plan balance, staff bring forth, for Council approval, the terms of the tentative agree in the form of a side letter agreement between the City and BPOA.
Analysis
Under the vision reimbursement plan, the City contributed $19/month for each member and eligible dependent. Following the migration from the vision reimbursement plan to the vision insurance plan, the committee reimbursed all remaining claims, leaving a balance of $6,428.01.
On January 31, 2023, representatives from the City Manager’s Office and BPOA met and conferred on the disposition of the remaining balance. Having done so, the parties tentatively agreed to allow current members of BPOA to seek reimbursement for vision related expenses not covered by insurance. Under the tentative terms, members of the BPOA employed by the City of Belmont on or before January 31, 37
BPOA Side Letter Agreement #2
2023, and their eligible dependents shall be eligible for the reimbursement of vision care expenses up to $178.55. The $178.55 is an equal distribution of the remaining $6,428.01 among BPOA’s thirty-six (36) members. Additional conditions are as follows:
• Eligible expenses must be incurred January 1 through June 30, 2023. • Expenses must be incurred during time of employment with the City. Members who separate from the City shall forfeit eligibility as of the effective date of separation. • All receipts must be submitted on or before July 15, 2023. • Expenses previously reimbursed are not eligible.
• Balances cannot be transferred from one member to another.
As the funding for the reimbursement program were allocated through the budget process, there will be no additional costs incurred. Any remaining balance in July 2023 will be returned to the General Fund for other uses determined by the City Manager or designee.
Alternatives
1. Direct staff to continue the meet and confer process
2. Take No Action
Attachments
A. Side Letter #2 between the City of Belmont and the Belmont Police Officers’ Association Fiscal Impact
☐ No Fiscal Impact
☒ Funding Source Confirmed:
BPOA’s vision plan reimbursement expense is budgeted and available from the Self-Funded Vision Fund 572.
Source: Purpose: Public Outreach:
Staff Statutory/Contractual Requirement Posting of Agenda 38
RESOLUTION NO. 2023 –
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BELMONT APPROVING SIDE LETTER AGREEMENT #2 BETWEEN THE CITY OF BELMONT
AND THE BELMONT POLICE OFFICERS ASSOCIATON
WHEREAS, on December 14, 2021, the City Council adopted Resolution 2021-110, approving a Memorandum of Understanding (“MOU”) between the CITY and the Belmont Police Officers Association (BPOA) for the period July 1, 2021 through June 20, 2025; and, WHEREAS, section 16.4 of the MOU established terms of the vision plan provided by the City to BPOA members ; and,
WHEREAS, section 16.4 calls for the transition from a member reimbursement plan funded by City contributions to a vision insurance plan effective July 1, 2022, or as soon as reasonably possible thereafter; and,
WHERAS, Section 16.4 calls for the parties to meet and confer regarding the appropriate uses of any amounts remaining in the reimbursement plan after January 1, 2023; and,
WHEREAS, the remaining balance in the BPOA reimbursement plan is $6,428.01; and, WHEREAS, the City and BPOA have met and conferred in good faith and reached a tentative agreement on the disposition of the reimbursement plan funds.
NOW, THEREFORE, the City Council of the City of Belmont resolves to amend the MOU between the City and BPOA via the addition of Side Letter Agreement #2 (Exhibit A):
* * *
39
ADOPTED February 28, 2023 by the City of Belmont City Council by the following vote:
Ayes:
Noes:
Absent:
Abstain:
ATTEST:
City Clerk Mayor
APPROVED AS TO FORM:
City Attorney
40 SIDE LETTER AGREEMENT #2
Between the City of Belmont and Belmont Police Officers’ Association February 2023
Pursuant to the provisions of the Meyers-Milias Brown Act (“MMBA”), this Side Letter Agreement is entered into by and between the City of Belmont (“CITY”) and the Belmont Police Officers’ Association (BPOA), collectively referred to as the Parties, with regard to the following:
WHEREAS, on December 14, 2021 the City Council adopted Resolution 2021-110, approving a Memorandum of Understanding (“MOU”) between the CITY and BPOA for the period July 1, 2021 through June 30, 2025;
WHEREAS, section 16.4 of the MOU established the terms of the vision plan provided by the City to BPOA members;
WHEREAS, section 16.4 calls for the transition from a member reimbursement plan funded by City contributions to a vision insurance plan effective July 1, 2022 or as soon as reasonably possible thereafter;
WHEREAS, section 16.4 calls for the parties to meet and confer regarding the appropriate uses of any amounts remaining in the reimbursement plan after January 1, 2023; WHEREAS, the remaining balance in the BPOA reimbursement plan is $6,428.01; WHEREAS, the CITY AND BPOA have met and conferred in good faith and reached a tentative agreement.
NOW THEREFORE, the PARTIES have agreed to the following disposition of the reimbursement plan balance:
Members of the BPOA employed by the City of Belmont on or before January 31, 2023 and their eligible dependents shall be eligible for the reimbursement of vision care expenses up to $178.55.
• Eligible expenses must be incurred January 1 through June 30, 2023. • Expenses must be incurred during time of employment with the City. Members who separate from the City shall forfeit eligibility as of the effective date of separation. • Receipts must be submitted for reimbursement on or before July 15, 2023. • Expenses previously reimbursed are not eligible.
• Balances cannot be transferred from one member to another. • Any remaining plan balance as of July 1, 2023, will be returned to the City’s General Fund.
On behalf of the CITY OF BELMONT On behalf of the BELMONT POLICE OFFICERS’ ASSOCIATION
Afshin Oskoui, City Manager Daniel Friedman, President
Date Date
41
Legislative Platform Update 2023 Legislative Platform Update 2023 - Staff Report
STAFF REPORT
Meeting Date: February 28, 2023
Agency: City of Belmont
Staff Contact: Afshin Oskoui, City Manager, 650-595-7408, [email protected] Agenda Title: State Legislative Advocacy for the City of Belmont 2023 Update Agenda Action: Motion
Recommendation
Motion to reaffirm Belmont’s State and Federal Legislative Platform as presented.
Strategic Focus Area
Fiscal and Organizational Sustainability
Background
On March 24th, 2020, City Council approved Resolution 2020-022 authorizing a contract with Renne Public Policy Group (RPPG) to provide State Legislative Advocacy and Consulting Services. RPPG was engaged to provide guidance and advocacy services when appropriate on state legislation regarding housing initiatives, infrastructure, regional transportation improvements, environmental sustainability, community services, public safety and emergency management, and other policies that may affect the City’s operations or finances.
RPPG conducted a review and initial assessment of the 2017 Belmont Legislative Platform. All told the platform is quite detailed and provided direction for city staff and RPPG to engage on a variety of policy issues. RPPG made some suggested modifications that reflect the City’s 2020 strategic plan as well as made notes outlining the shifts that have occurred in Sacramento policy landscape at that time. Those suggested changes served as a starting point for the City Council Study Session on May 12, 2020. The City’s Legislative Platform was amended and approved by the Council on May 26, 2020 and has since been updated on a yearly basis.
Analysis
The City of Belmont recognizes the need for active legislative engagement at the local, state, and federal levels to protect and enhance the interests of Belmont’s residents and businesses. Accordingly, City officials and staff maintain close relationships with Belmont’s state and federal representatives to advocate, influence and monitor pertinent legislation.
The City’s Legislative Platform (Attachment A) contains broad policy statements pertaining to a variety of issues that impact the City. The Legislative Platform provides a policy framework for the City to respond to legislative issues important to the City in a timely manner, including correspondence from the Mayor or City Manager to the Legislature and/or Congress, and collaborating, when appropriate, with the League of California Cities. The City’s primary legislative focus includes protecting local government control, improving public safety, maintaining local government revenues, obtaining funding for environmental sustainability, transportation, recreational, technology and infrastructure improvements. 42
Legislative Platform 2023 Update Legislative Platform Update 2023 - Staff Report By implementing and maintaining an active legislative advocacy program, the City can ensure that the City Council and staff would be fully apprised of evolving state initiatives that may affect the City’s key priorities, programs, or operations.
In addition, having a legislative advocate with a physical presence in Sacramento is important for tracking legislation that might impact the City, and will help in building relationships with key elected officials and their offices. Accordingly, the statements outlined within the Legislative Platform are intended to assist the Mayor, Councilmembers, and staff to pro-actively and appropriately address legislation to promote City interests and preserve local legislative authority when necessary.
In accordance with the adopted Council strategic priorities and in advance of the 2023 Legislative session, RPPG engaged City staff in conducting a day-long “Deep Dive” meeting with all City department heads and the City Manager. The purpose of this meeting was for RPPG to work with City staff to better assess current City priorities and projects and which legislative policy areas and funding opportunities should be focused on moving into 2023. RPPG conducted a review of the 2022 Belmont Legislative Platform informed by these discussions. All told, the platform is quite detailed and certainly provides direction for city staff and RPPG to engage on a variety of policy issues
At its January 24, 2023, meeting the Council received an update from RPPG on their suggested amendments and provided feedback on issues the City wishes to address in 2023 including:
• Local Control
• Fiscal and Administrative Initiatives
• Housing and Land Use
• Transportation
• Environmental Sustainability
• Community Services
• Infrastructure Maintenance and Rehabilitation
• Utilities
• Public Safety
The attached State And Federal Legislative Platform Draft 2023 Legislative Platform Update provides detailed revisions.
Alternatives
1. Provide direction and postpone for future discussion Attachments
A. State and Federal Legislative Platform - Draft 2023 Update Fiscal Impact
☒ No Fiscal Impact
Source: Purpose: Public Outreach:
Staff Council Vision/Priority Posting of Agenda
43 Belmont Legislative Platform redline 2023
City of Belmont
STATE AND FEDERAL LEGISLATIVE PLATFORM
DRAFT 2023 LEGISLATIVE PLATFORM UPDATE
Note: All proposed changes are indicated by italicized, underlined, and bolded language Platform Overview
The Legislative Platform contains broad policy statements pertaining to a variety of issues that impact the City of Belmont—reflecting the mission, vision and values of the City to enrich the quality of life for our community with services that provide for a safe, fulfilling and vibrant life.
The Legislative Platform provides a policy framework for the City to respond to state and federal legislative issues important to the City in a timely manner. Outlining policy guidelines will also serve to provide direction to City staff and legislative consultants to engage on state legislation on behalf of the City in real time—including correspondence from the Mayor or City Manager to the Legislature and/or Congress.
The City’s primary legislative focus include: protecting local government control, improving public safety, maintaining local government revenue, obtaining funding for environmental sustainability, transportation, recreational, technology and infrastructure improvements.
Furthermore, our focus remains committed to finding ways to work collaboratively with federal, state and local partners to further our City’s ability to achieve its strategic goals.
Legislative Issues
Local Control
The City values its ability and authority to exercise local control and to protect and enhance the quality of life for Belmont’s residents. Support Legislation that enhances local control of resources and that allows cities to address the needs of local constituents within a framework of regional cooperation. Encourage the use of federal and state incentives for local government action rather than mandates (funded or unfunded).
Oppose preemption of local authority whether by state or federal legislation or ballot propositions. Support efforts to streamline regulations that simplify the job of running a city and oppose efforts that erode the city’s authority to control its own affairs.
Governmental Transparency and Public Access
Support legislation that balances increased public trust, confidence, and access to public meetings while realizing the fiscal and operational constraints of local government.
Support legislation that would increase civic participation and engagement, including the continued allowance of legislative subcommittees, advisory committees, and commissions to 44 Belmont Legislative Platform redline 2023
participate virtually (post-COVID-19 state of emergency) without physical location posting requirements under the Ralph M. Brown Act.
Fiscal and Administrative Initiatives
Support fiscal sustainability and ‘best in class’ administrative initiatives to ensure the delivery of superlative city services. Monitor initiatives which seek changes in fiscal relationships at the local, state and federal level, and support legislation that guarantees ongoing revenue sources for local government.
Support opportunities that allow the City to compete for its fair share of regional, state and federal funding, and that maintain funding streams. Opportunities may include competitive grant and funding programs. Pursue funding opportunities for public facilities and services including capital improvement projects, public works projects, homeland security, library, parks and social service facilities.
Support legislative, administrative and/ or funding mechanisms that enable the City to better provide core services and respond to the needs of its residents. Options may include regional service delivery, flexibility around seasonal workforce, project specific workforce or other innovate tools to adapt to changing fiscal conditions and resident’s needs.
Support long term statutory solutions to adequately reimburse cities from the Vehicle License Fee (VLF) Swap of 2004 as well as short term, temporary adjustments.
Oppose efforts to decrease, restrict, eliminate, seize, divert, supplant, or otherwise restrict local revenues. Oppose any efforts at the state level to eliminate, restrict, or redirect revenues currently dedicated to local government for state purposes.
Housing and Land Use
Support incentive-based housing legislation to encourage expanding affordable housing supply including development of fiscal tools and incentives to assist local governments in their efforts to encourage housing, finance the infrastructure to support housing, establish an ongoing state commitment to funding affordable housing, and fund and support affordable housing programs, including supportive housing programs and necessary infrastructure.
Support funding programs that promote the development and enhancement of safe, affordable, and accessible housing within the City for all economic segments of the population, including workforce housing.
Support reforms and improvements to housing element law to provide clear processes and flexibility to allow regional cooperation and establish realistic housing goals and performance standards—including modifications in criteria to meet the State’s Regional Housing Needs Assessment (RHNA) goals.
45 Belmont Legislative Platform redline 2023
Support legislation that provides incentives (tax benefits, grants, loans, credits for affordable units) to local agencies, private developers and non-profit groups in order to rehabilitate residential units and commercial properties.
Monitor and evaluate housing proposals that take a “one-size-fits-all” approach. Specifically, advocate for modifications in proposals to recognize and incentivize communities like Belmont that are good actors in addressing community-housing needs.
Oppose state mandated attempts to usurp local discretion over matters relating to local housing and land use policies.
Advocate for recognition and use of inclusionary housing requirements as a condition of development and other tools in an effort to incorporate affordable housing into market rate development.
Support funding opportunities provided to local jurisdictions through statewide bond efforts.
Support efforts to provide dedicated funding and technical assistance to local governments to adopt and implement plans and process improvements and for the administration and ongoing compliance of state housing programs.
Review and evaluate legislation that would directly tie production mandates to the regional housing needs assessment process.
Transportation
Support state and federal legislation that enhances the safety of the City’s streets for automobile, bicycle and pedestrian traffic, including issues related to speed enforcement, traffic congestion reduction programs and regional transportation improvements.
Support protection of dedicated transportation-related tax revenues and enhance the ability of local agencies to finance local transportation programs and facilities (e.g. Gas Tax, State bond funds).
Support efforts to maximize the State’s purchasing power to lower materials costs for local streets and road repair.
Support federal and state funding and policy goals to enhance multi-modal transportation efforts.
Support and advocate for clear investments to make public transportation an accessible, affordable, and sustainable alternative to driving, especially efforts to enhance local multi modal transportation options.
46 Belmont Legislative Platform redline 2023
Environmental Sustainability
Support cost-effective, sustainable and responsible environmental policy programs in the areas of energy efficiency, greenhouse gases, climate change, wastewater, solid waste removal and stormwater, among others. Support measures that expand markets for recyclable materials and maintain local authority and flexibility to regulate solid waste and recyclables.
Oppose waste and resource recovery measures imposing state-mandated costs when there is no guarantee of local cost recovery or offsetting benefit.
Community Services
Support funding for ADA facility and park upgrades. Promote legislation that provides for increased services to or funding for youth and at-risk populations such as the frail elderly, homeless, disabled and other challenged populations.
Support funding for vital regional and community services including access to parks, open space, bike lanes, after school programming, youth services, senior services, food programs, facilities that provide critical community services, protect natural resources, promote resource management, and strengthen safety and security. Oppose efforts that erode funding for these vital regional and community services.
Infrastructure Maintenance and Rehabilitation
Support legislation and policies that promote investing in the maintenance and rehabilitation of aging infrastructure (streets, stormwater, wastewater, parks and facilities). Support the lowering of the threshold for voter-approved capital financing and opportunities for innovative public financing.
Support legislation and funding opportunities that would help the City fund improvements for parks, open space, green infrastructure, and fuel mitigation and reduction.
Support legislation and funding opportunities that enhance the capacity of local government to enact climate change adaptation and mitigation, promote disaster risk reduction and community resilience, and/or advance sustainability through capital improvement to City facilities.
Utilities
Support efforts that maintain the ability to retain existing fees on telecommunications services and for public, educational and governmental channels. Oppose efforts to restrict the authority of cities to zone and plan for the deployment of telecommunications infrastructure. Support the ability of cities to maintain and manage the public right-of-way and receive compensation for its use.
Support California PUC efforts to require enhanced, more effective and timely notification for planned and unplanned repairs resulting in power outages to customers. Monitor California PUC 47 Belmont Legislative Platform redline 2023
regulatory system for impacts to overall safety, health, and quality of life of the residents of Belmont.
Public Safety
Support legislative efforts to improve local law enforcement, fire suppression and prevention, hazardous materials mitigation, rescue, emergency medical services, and disaster preparedness.
Including legislation and grant funding opportunities for innovate fire suppression technology.
Support legislation that promotes and strengthens law enforcement and first-responder access to mental health services, including peer support, training, family resources, suicide prevention, and other promising practices for wellness programs.
Support forward thinking legislative, administrative and funding polices that promote civic engagement, community partnerships and public education.
Support legislative efforts to grant state and federal funding to supplement local law enforcement to increase staffing, equipment and capital improvements to maintain public safety.
Evaluate legislation on implementation of best practices regarding law enforcement procedures and policies.
48
Linc Housing DDLA
STAFF REPORT
Meeting Date: February 28, 2023
Agency: City of Belmont
Staff Contact: Jennifer Rose, Housing and Economic Development Manager, [email protected] Agenda Title: Disposition Development and Loan Agreement with Linc-Hill Street, L.P., for an Affordable Housing Project at 876, 884, 898, and 900 El Camino Real at Hill Street Agenda Action: Resolution
Recommendation
Adopt a Resolution 1) authorizing the City Manager to complete negotiations and enter into a Disposition Development and Loan Agreement (DDLA) between the City of Belmont and Linc-Hill Street, L.P. for development of a 37-unit affordable housing project, and 2) authorizing the City Manager to prepare and execute all necessary implementing agreements and documents consistent with the material terms presented to Council, and 3) find the project exempt from CEQA under Government Code Section 65913.4(j).
Strategic Focus Area
Economic Development and Housing
Background
In June 2017, the City of Belmont issued a Request for Proposals for development of affordable housing on City-owned project sites located on El Camino Real at Hill Street (876, 884, 898, and 900 El Camino Real at Hill Street, collectively the “Property”). After reviewing responses and interviewing three firms, the City selected Linc Housing Inc. (“Developer”) as the preferred developer. On February 13, 2018, the City Council approved Resolution 2017-007 authorizing the City Manager to enter into an Exclusive Negotiating Agreement (“ENA”) with Linc Housing for development of a 37-unit 100% affordable rental housing project on the project sites (the “Project”). The ENA outlined the general scope, design and financing terms of the project, and directed the developer to proceed with obtaining all project entitlements and funding. The ENA was executed by both parties on August 8, 2018.
Since 2018 the City Council has approved several extensions of the ENA to provide additional time for the applicant and City to work together on completing the entitlement review. Following is a summary of the ENA extensions and amendments:
• On August 9, 2019, the City Manager authorized a two-month extension of the ENA to October 8, 2019.
• On October 22, 2019, the City Council adopted Resolution 2019-105, making certain amendments to the ENA related to target population to be consistent with the County Affordable Housing Fund guidelines, and extending the negotiating term to July 2020. • On July 14, 2020 the City Council adopted Resolution 2020-067 approving an extension to the Amended Exclusive Negotiating Agreement through July 2021. 49
Linc Housing DDLA
• On July 13, 2021, the City Council adopted Resolution 2021-069 approving an extension of the ENA through July 31, 2022.
• On June 21, 2022, the City Council adopted Resolution 2022-066 approving an extension of the ENA through July 31, 2023, authorizing submittal of an SB 35 streamlined ministerial review application, and adopted a term sheet that identified several updated project components such as unit affordability, property disposition, and an updated review timeline.
The Belmont Planning Commission held a public meeting on February 7, 2023 to consider the Project, and adopted Resolution 2023-03 approving the project entitlements, including Design Review, Grading Plan, and various zoning exemptions, exceptions, incentives and waivers. The Planning Commission also adopted Resolution 2023-04 recommending that the City Council approve a Disposition, Development and Loan Agreement (“DDLA”) with the Developer to facilitate development of the approved project.
The City and the Developer have worked collaboratively to negotiate the terms for sale of the property, development of the Project, and a loan of City housing funds to the Developer to support the development.
The material terms of the DDLA and the implementing documents are summarized below, and a draft of the DDLA is attached for Council consideration. If the City Council is in agreement with the terms as presented, the attached resolution would authorize the City Manager to complete negotiations, and finalize and execute the DDLA and all attachments.
Analysis
Following is a summary of the material terms of the DDLA and all attachments.
Disposition Development and Loan Agreement (DDLA)
1. Requirements for disposition of the property, including obtaining all City Approvals, approved financing plan, approved building permit, construction contract and bonds, and public agency financing approvals including the City, San Mateo County, and a commitment of low-income housing tax credits from the State.
2. Property sale transaction details, including the agreed upon purchase price of one dollar ($1.00), escrow and funding requirements, title requirements, and the “as is” conveyance in which the Developer specifically acknowledges buying the property “as is with all faults.”
3. Project construction requirements, including development schedule, approved Project plans, prevailing wage requirements, and other construction responsibilities.
4. The terms for a loan of up to $1,000,000 of City housing funds to the Developer to be used to fund fees and costs related to development of the Property with the approved Project, with a three percent simple annual interest rate.
5. Ongoing Developer obligations, including use of the development as affordable housing, maintaining unit affordability for a minimum of 57 years (or longer if required by other funding sources), property maintenance, hazardous material indemnity, and insurance requirements.
6. Options and procedures for assignments and transfers of the property during the term of the Agreement, and remedies available to both parties if any breach or default of the Agreement occurs.
• Exhibit A: Legal Description of the Property
50
Linc Housing DDLA
• Exhibit B: Schedule of Performance. The Developer has approximately two years from the Agreement date to obtain a building permit and close escrow on the Property, and 30 months to complete construction of the Project.
• Exhibit C: Pro Forma. Financing Plan for the acquisition of the Property and construction of the Development, including a detailed development budget and evidence of equity and debt financing reasonably satisfactory to the City.
• Exhibit D: Scope of Development. The plans approved by the Belmont Planning Commission on February 7, 2023.
• Exhibit E: Form of Grant Deed. Conveys interest in the property to the Developer. • Exhibit F: Form of Memorandum of DDLA. Ensures the ongoing obligations of the DDLA are recorded on title.
• Exhibit G: Form of Regulatory Agreement. The Regulatory Agreement is the tool which enables the City is able to restrict the affordability level of new housing units. For this project, the City has authority to restrict up to 49% of the units as affordable, or a total of 18 units. The City Restricted Units shall be one-bedroom units, and available to households earning 50% or less than the Area Median Income (AMI). This project has received additional public funding from San Mateo County and is expected to receive an allocation of low-income housing tax credits from the California Tax Credit Allocation Committee (CTCAC), both of which will require additional units to be restricted to low-income households ensuring that all rental units will be affordable (one onsite manager unit will not be restricted). • Exhibit H: Form of Notice of Affordability Restrictions • Exhibit I: Form of Promissory Note. The City will provide a loan of up to $1,000,000 of affordable housing fund to the Developer, bearing a simple interest rate of three percent per annum. The loan shall be repaid to the City from project residual receipts as detailed in the DDLA. • Exhibit J: Form of Deed of Trust. Secures the Promissory Note.
Consistency with Health and Safety Code Section 33433 Summary Report The terms of the DDLA and all attachments, as summarized above, remain consistent with the Health and Safety Code Section 33433 Summary Report that was considered by the City Council at a Public Hearing on February 14, 2023. There have been no changes to the fiscal impacts of the agreement, including the sale of property, development, and loan of City funds. No public comments were received during the twoweek public notice period or during the public hearing.
Staff believes that the DDLA with all attachments are appropriate for the proposed Project, and the proposed project is consistent with the City’s goals to produce more lower-income housing units. A resolution has been prepared (Attachment A) authorizing the City Manager to complete negotiations and to finalize and execute all agreements and ancillary documents required to complete the project consistent with the material terms presented to the City Council.
51
Linc Housing DDLA
Alternatives
1. Provide alternative direction on terms of the Agreement.
2. Take no action, not allowing the project to proceed.
Attachments
A. Resolution
B. Project Plans
C. Draft DDLA
Fiscal Impact
☐ No Fiscal Impact
☒ Funding Source Confirmed: Approval of the Resolution would commit the City to a loan of up to $1,000,000 from the Affordable Housing Fund 275 and/or the Housing Mitigation Fees Fund 277. The City has confirmed that there are sufficient funds available to provide this loan, and the loan will be included in the City’s annual budget based on the project closing schedule.
Source: Purpose: Public Outreach:
Staff Council Vision/Priority Other*
* A notification of public hearing was mailed to all property owners within 300-feet of the subject property, and a public hearing notice was posted at City Hall. 52
RESOLUTION NO. 2023 –
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BELMONT
AUTHORIZING THE CITY MANAGER TO COMPLETE NEGOTIATIONS AND
ENTER INTO A DISPOSITION DEVELOPMENT AND LOAN AGREEMENT BETWEEN THE CITY OF BELMONT AND LINC-HILL STREET, L.P., AND TO
COMPLETE AND EXECUTE ALL NECESSARY IMPLEMENTING AGREEMENTS
AND DOCUMENTS CONSISTENT WITH THE TERMS PRESNETED TO THE CITY
COUNCIL
WHEREAS, the City of Belmont and Linc-Hill Street, L.P. (the “Developer”) wish to enter into a Disposition Development and Loan Agreement (“Agreement”) for development of an affordable housing project at 876, 884, 898, and 900 El Camino Real at Hill Street (APN’s 045-163-070, 045-162-070, 045-162-080, 045-162-090); and, WHEREAS, on June 21, 2022, the City Council adopted Resolution 2022-066 authorizing the Developer to submit streamlined ministerial review application under Government Code Section 65913.4 for the project; and,
WHEREAS, on February 14, 2023, the City Council held a duly and properly noticed public hearing approved Resolution No. 2023-017 making certain findings under Public Health and Safety Code Section 33433 for disposition of public property and approving the financial terms of the Agreement between the City of Belmont and the Developer to construct a 37-unit affordable rental housing project (the “Project”); and, WHEREAS, on February 7, 2023, the Belmont Planning Commission held a duly and properly noticed public hearing and approved Resolution No. 2023-03 approving all required entitlements for the Project, and approved Resolution No. 2023-04 recommending that the City Council approve a Disposition Development and Loan Agreement; and, WHEREAS, as part of its recommendation to the City Council, the Planning Commission determined that the Project is consistent with the City’s General Plan and all zoning and land use regulations applicable to the property; and,
WHEREAS, the City of Belmont and the Developer have agreed that the Project financing plan requires public assistance in the form of land and a loan of affordable housing funds in order to be viable and to meet the desired affordability targets.
NOW, THEREFORE, the City Council of the City of Belmont resolves as follows:
SECTION 1. The foregoing Recitals are true and correct and by this reference are made a part of this Resolution.
SECTION 2. Based upon the findings of fact contained in the staff reports to the City Council dated February 28, 2023, the presentations to the City Council and supporting documents and the public testimony received, the City Council finds the provisions of the Disposition, Development, and Loan Agreement and the Grant Agreement consistent with the 53
City's General Plan and Belmont Village Specific Plan, and consistent with the zoning and other land use regulations applicable to the Property.
SECTION 3. The City Council authorizes the City Manager to complete negotiations and execute: 1) a Disposition and Development Loan Agreement between the City of Belmont and Linc-Hill Street L.P., and 2) the regulatory agreement and all necessary implementing agreements and documents consistent with the material terms presented to City Council on February 28, 2023.
SECTION 4. The disposition of the property and the provision of financing assistance by the City is exempt from California Environmental Quality Act under Government Code Section 65913.4(j).
* * *
ADOPTED February 28, 2023 by the City of Belmont City Council by the following vote:
Ayes:
Noes:
Absent:
Abstain:
ATTEST:
City Clerk Mayor
APPROVED AS TO FORM:
City Attorney
54 Site A Program Summary
Address: 900 El Camino Real
Belmont, CA 94002
Zone: Village Core, Belmont Village Specific Plan (BVSP) C2
Land Use: Commercial Residential
Lot Area: 8,453 sf (0.194 acre)
Floor Area Ratio: 2.0 Base
3.23 w/ 61.5% bonus via a Sec. 65915(e) waiver request = 27,303 sf FAR proposed 3.22
Floor Area proposed: 27,177 sf
Unit Mix Provided
1 Bedroom 14
2 Bedroom 4
3 Bedroom 6
Total 24 DU
Parking Req Provided
Residential 0***** 7+1EV
***** Per the SB-35 state streamlining law (CA Gov Code Sec. 65913.4(e)(1)) “a local government… shall not impose automobile parking standards for a streamlined development… located within one-half mile of public transit.”
Bike Parking
Short term (class2) 2 2
Long term (class1) (1 per 5DU) 5 5
Site B Program Summary
Address: 876, 884, 898 El Camino Real
Belmont, CA 94002
Zone: Village Core, Belmont Village Specific Plan (BVSP) C3
Land Use: Commercial Residential
Lot Area: 5,044 sf (0.116 acre)
Floor Area Ratio: 2.0 Base
3.23 w/ 61.5% bonus via a Sec. 65915(e) waiver request= 16,292 sf FAR proposed 3.21
Floor Area proposed: 16,170 sf
Unit Mix Provided
1 Bedroom 4
2 Bedroom 5
3 Bedroom 4
Total 13 DU
Parking Req Provided
Residential 0***** 3+1Manager's space
***** Per the SB-35 state streamlining law (CA Gov Code Sec. 65913.4(e)(1)) “a local government… shall not impose automobile parking standards for a streamlined development… located within one-half mile of public transit.”
Bike Parking
Short term (class2) 2 2
Long term (class1) (1 per 5DU) 3 3
Sites A & B Program Summary
Lot Area Total: 13,497 sf
FAR allowed (with Bonus***): 3.23
Floor Area allowed: 43,595 sf
FAR proposed: 3.21
Floor Area proposed: 43,347 sf****
Site A 27,177 sf
Site B 16,170 sf
*** 61.5% bonus via a Sec. 65915(e) waiver request
**** Excluding garage (per BVSP, page 2-15)
Unit Mix Provided
1 Bedroom (@ 600 nsf) 18 (48.6%)
2 Bedroom (@ 792 nsf) 9 (24.4%)
3 Bedroom (@ 1007 nsf) 10 (27.0%)
Total 37 DU
Parking Req Provided
Residential 0***** 10+1EV+1Manager's space
***** Per the SB-35 state streamlining law (CA Gov Code Sec. 65913.4(e)(1)) “a local government… shall not impose automobile parking standards for a streamlined development… located within one-half mile of public transit.”
Bike Parkings
Short term (class2) 4 4
Long term (class1) 8 8
Note:
Refer to zoning compliance tables on A01 for additional information.
A00 COVER SHEET
A01 ZONING COMPLIANCE
A02 SITE PLAN
A03 LEVEL 1 FLOOR PLAN
A04 LEVEL 2 FLOOR PLAN
A05 LEVEL 3 FLOOR PLAN
A06 LEVEL 4 FLOOR PLAN
A07 LEVEL 5 FLOOR PLAN
A08 ROOF LEVEL PLAN
A09 BUILDING SECTIONS
A10 BUILDING STREET ELEVATIONS
A11 BUILDING ELEVATIONS
A12 SAMPLE UNIT PLANS
A13 MATERIALS, COLORS AND SITE PHOTOS
PROJECT SITE
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A00
COVER SHEET
December 20, 2022
PROJECT INFORMATION
SHEET INDEX
CONTEXT MAP
FLOOR AREA BUILDING A
LEVEL AREA
LEVEL 1 2,488 SF
LEVEL 2 6,032 SF
LEVEL 3 6,242 SF
LEVEL 4 6,431 SF
LEVEL 5 5,984 SF
FLOOR AREA 27,177 SF
FLOOR AREA BUILDING B
LEVEL AREA
LEVEL 1 2,661 SF
LEVEL 2 3,443 SF
LEVEL 3 3,459 SF
LEVEL 4 3,459 SF
LEVEL 5 3,148 SF
FLOOR AREA 16,170 SF
FLOOR AREA SUMMARY
Floor area is determined by the area taken from the outside surface of exterior walls per the Belmont Village Specific Plan page 4-22; Balconies are not include in the area per the City of Belmont Zoning Ordinace Definition of "Floor Area, Gross"
2.60; Garages are not included per the Belmont Village Specific Plan page 4-22.
FIRE DEPARTMENT NOTES
1. All buildings shall be provided with a Knox Key-Lock Box. The approved location shall also be clearly indicated on the project plans. Please contact Fire Department to determine an approved location for its installation.
2. Passive smoke control shall be provided for all buildings greater than four stories or 40 feet in height. All stair shaft doors shall be self-closing with smoke seals. All cross-corridor doors (these may be on hold-open magnets) shall be provided with smoke seals. Said doors shall be fire-rated assemblies.
3. The applicant must install infrastructure, including conduit and subpanel, for possible installation of Emergency Responder Radio Coverage (ERRC) components. This determination will be made by third party special inspection and testing, which will be required prior to occupancy to determine the need for ERRC installation.
4. If the proposed roof elevation is different by 3 feet or more, and where the slope is at or exceeds 1-inch riser over 4- inch run stationary, interconnected ladder and footpath systems to the roof top shall be provided on any plans submitted for a building permit. Please submit the design of these ladders for review and approval of the Fire Code Official.
5. All buildings shall be provided with an Automatic Fire Extinguishing System. A NFPA 13 fire sprinkler system is required.
55 (Active Use- 21.5%)
14' - 2 1/2"
(Non-active Use- 78.5%)
51' - 11 1/2"
(Setback < 10'- 78.3%)
51' - 10"
(Setback > 10'- 21.7%)
14' - 4"
21' - 4"
(Recess)
12' - 1" 22' - 11"
(Recess)
10' - 3"
66' - 7" (Frontage Length)
66' - 2" (Frontage Length)
Limitations on Blank Walls- 1' recess @ 33.5%
Ground Floor Active Uses
Build to Line / Min % of Front Facade within 10' of sidewalk 66' - 2" (Frontage Length)
1' - 0" 8' - 1" 7' - 6"
Ground Floor Transparency- Continuous Plane No Opening
2' - 6"
7' - 0"
(Different Planes)
14' - 4"
Ground Floor
Transparency
Datum
(Alternative Through Design Review Req)
34' - 7"
31' - 2 1/2" (Non-active Use- 47%) 33' - 11" (Active Use- 53%) (Recess)
30' - 0" 37' - 5"
67' - 5" (Frontage Length)
Limitations on Blank Walls- 1' recess @ 44.5%
Ground Floor Active Uses
Build to Line / Min % of Front Facade within 10' of sidewalk Ground Floor Transparency- Continuous Plane No Opening
65' - 1 1/2" (Frontage Length)
65' - 1 1/2" (Frontage Length)
(Setback > 10'- 21%)
13' - 10"
(Setback < 10'- 79%)
51' - 3 1/2"
4' - 8" 1' - 0"
Ground Floor
Transparency
Datum
8' - 6" 1' - 10" 1' - 10" 2' - 5" 7' - 0" 2' - 7" 1' - 7" 1' - 7" 2' - 7" 1' - 8" 1' - 0" 2' - 11" 6' - 11" 4' - 0" 2' - 7" (Setback < 10'- 89.9%)
61' - 5"
(Setback < 10'- 10.1%)
6' - 11 3/8"
Limitations on Blank Walls- 1' recess @ 47.0%
Wall Area- 3780 sf
Openings with 1' recess x 5' wdith (Diagonal Lines)- 1778 sf Percent of Openings with 1' recess x 5' width= 47.0%
Limitations on Blank Walls- 1' recess @ 26.6%
Wall Area- 2267 sf
Openings with 1' recess x 5' wdith (Diagonal Lines)- 604 sf Percent of Openings with 1' recess x 5' width= 26.6%
Ground Floor Active Uses- Not Required on El Camino Real Ground Floor Active Uses - Not Required on El Camino Real Build to Line / Min % of Front Facade within 10' of sidewalk Build to Line / Min % of Front Facade within 10' of sidewalk Ground Floor Transparency- Coninuous Plane No Opening Ground Floor Transparency- Coninuous Plane No Opening 68' - 4 3/8" (Frontage Length)
Build to Line: Design
Review Req for
Pedestrian Access
1' - 6"
115' - 3" (Frontage Length)
(Setback < 10'- 100%)
115' - 3"
5' - 0" 5' - 0"
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A01
ZONING COMPLIANCE
December 20, 2022
Zoning Diagrams Outdoor Living Area Zoning Compliance
56 A10
1 2 A10 3
EL CAMINO REAL
HIL
L
S
T
R
E
E
T
EASEMENT
TO BELMONT STATION UNDERPASS
SITE B
PROPOSED
BUILDING B
5 STORY
MIXED-USE
SITE A
PROPOSED
BUILDING A
5 STORY
MIXED-USE
BELMONT STATION PARKING
PROPERTY LINE PROPERTY LINE
EXISTING
BUILDING
1 STORY
EXISTING
BUILDING
2 STORY
EXISTING
BUILDING
2 STORY
EXISTING
BUILDING
1 STORY
EXISTING
BUILDING
2 STORY
EXISTING
BUILDING
1 STORY
LANSCAPED
OPEN
SPACE
LANSCAPED
OPEN SPACE
GORDON AVE
± 70' - 1" ± 120' - 8"
± 120' - 8"
±
74' - 2"
±
7 0' - 0"
±
7 0' - 3"
EXISTING 1
STORY
BUILDING
OUTLINE
EXISTING
2 STORY
BUILDING
OUTLINE
EXISTING
1 STORY
BUILDING
OUTLINE
SOLAR
SOLAR
A11
1 A11 3 2 A11
± 70' - 0"
EXISTING FIRE
HYDRANT
GROUND FLR
FOOTPRINT
GROUND FLR
FOOTPRINT
STAIR ROOF
ACCESS
STAIR ROOF
ACCESS
A01
3 2 A01 1
NEW FIRE
SIDEWALK
HYDRANT
12' - 0"
TO BLDG
16' - 6"
SIDEWALK
12' - 6"
12' - 6"
EASEMENT
8 1/2"
EASEMENT
6"
2 0' - 0"
9' - 6" . 7' - 6".
± 18' - 8"
±
70' - 1"
NOTE: UTILITIES IN
ACCESS EASMENT
TO BE RELOCATED
UNDERGROUND
0 8' 16' 32' 64'
GRAPHIC SCALE 1/16" = 1'-0"
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A02
SITE PLAN
December 20, 2022
57 BOL
JP
TS
100.14 EB CALTRANS
JP
101.63 ELEC CAB
101.10 ELEC CAB
C
UP
UP
A10
1 A10 3
716 SF
COMMUNITY ROOM
98 SF
OFFICE
469 SF
LOBBY
237 SF
TRASH-RECYCLE
42 SF
FIRE CMND
116 SF
UTILITY
563 SF
OFFICE
1020 SF
UNIT C3
3BR
126 SF
TRASH
385 SF
LOBBY
3 A09
2 2
A09
4 A09
1 A09
BIKE
LOCKERS
(3) BIKE LOCKERS (2)
ACCESSIBLE
6 ACCESSIBLE
4 5 EV
7 1 2 3
230 SF
UTILITY
EL CAMINO REAL
HIL
L
ST
EASEMENT
MAIL
MAIL
1' - 0" 9' - 0" 8' - 0" 8' - 6"
64 SF
RESTROOM
33 SF
CLOSET
TRNSFRMR
PAD
28' - 10 1/2" 24' - 5" 8' - 6 1/2"
4' - 6 5/8" 6"
3' - 0 3/8"
14' - 0" 7' - 6" 21' - 6" 11' - 1 1/2" 11' - 6 1/2" 6"
11"
4 1/8"
2' - 9 3/8" 66' - 2" 1' - 0 7/8"
13' - 6"
4 1/4" 119' - 8 5/8" 6 3/4"
66' - 2"
7' - 0 1/2" 22' - 4" 7' - 2" 8' - 10" 7' - 9" 12' - 8 1/2" 10' - 9" 33' - 4 1/2" 18' - 0" 24' - 0"20' - 0" 1' - 0" 8' - 6" 8' - 6" 1' - 0" 1' - 0" 8' - 6 1/2" 8' - 6" 8' - 6" 1' - 0" 1' - 0" 9' - 0" 8' - 0" 9' - 0" 1' - 0" 18' - 0"
8' - 6" 1' - 0"
1 2
96 SF
LAUNDRY
184 SF
UTILITY
19' - 0"
1' - 0" 8' - 6" 8' - 6" 6' - 5"
45' - 4 1/2" 16' - 0 1/2"
6' - 11 3/8" 61' - 5" 1' - 8 3/8"
26' - 2" 28' - 3" 13' - 0"
67' - 5" 1' - 1 1/2" 1' - 5 1/2"
22' - 3" 18' - 10 1/2"
19' - 10" 5' - 10 1/2" 4' - 6 3/8"
8 1/2" 23' - 1" 1' - 11" 9' - 6" 8' - 2 1/2" 4' - 6 3/8" 16' - 0" 6' - 3"
A11
1 8' - 4 1/2"
63 SF
DECK
SIDEWALK
12' - 0"
SIDEWALK
12' - 6"
A01
3 2 A01 1
82 SF
FIRE CMND
EA
SEMENT
9"
± 2' - 9 1/2"
± 5' - 7 5/8"
EA
SEMENT
6"
COMPACT
BIKE
LOCKERS (2)
SHORT
TERM BIKE
SPACES (4)
HOSE PULL ±15'
HOSE PULL ±24'
HOSE PULL ±77'
H
O
S
E
P
ULL ±42'
2' - 0"
53' - 5"
115' - 3"
2' - 0 1/8"
TRNSFRMR
PAD
BIKE LOCKERS (1)
SHORT
TERM BIKE
SPACES (2)
NOTE: UTILITIES IN
ACCESS EASMENT
TO BE RELOCATED
UNDERGROUND
3 COMPACT
4 COMPACT
0 4' 8' 16' 32'
GRAPHIC SCALE 1/8" = 1'-0"
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A03
LEVEL 1 FLOOR PLAN
December 20, 2022
58 DN
UP
DN
A10
1 A10 3
682 SF
UNIT A3
1BR
610 SF
UNIT A1
1BR
610 SF
UNIT A1
1BR
641 SF
UNIT A2
1BR
776 SF
UNIT B1
2BR
971 SF
UNIT C1
3BR
17 SF
TRASH
1043 SF
UNIT C4
3BR
771 SF
UNIT B2
2BR
58 SF
TRASH
3 A09
2 2
A09
4 A09
1 A09
55' - 5"
67 SF
DECK
61 SF
DECK
61 SF
DECK
67 SF
DECK
56 SF
DECK
13' - 4 1/8" 28' - 9 1/2" 8' - 5 1/2" 7' - 9" 7' - 5 1/2" 13' - 3 1/2" 11' - 8 1/2" 12' - 2 1/2" 12' - 9 1/2" 3' - 9"
5' - 8 1/2" 15' - 3" 4 1/2" 12' - 1" 21' - 11" 11' - 3" 14' - 0 1/2" 24' - 6 1/2" 15' - 11 1/2" 13' - 11" 34' - 1" 13' - 10 1/4" 4' - 2 7/8"
119' - 6 5/8" 1' - 1 1/8"
66' - 7" 3' - 2 1/64"
102' - 6 1/2"
33' - 10" 27' - 6 1/2" 3' - 0"
64' - 4 1/2" 1 3/8" 5' - 6 3/8"
27' - 10 1/2"
11' - 7" 12' - 0" 11' - 8"
1' - 8 1/2"
5' - 6" 10' - 10" 7' - 6 1/2" 7' - 5 1/2"
5' - 2" 5' - 6"
20' - 11 1/2" 45' - 7 1/2"
23' - 8" 25' - 0" 25' - 0"
1' - 6" 4' - 9 1/2"
138 SF
DECK
957 SF
OUTDOOR LIVING
1' - 0" 45' - 4 1/2" 17' - 6" 5' - 1"
63' - 10 1/2"
1' - 0" 27' - 0"
42' - 1 5/8"
3' - 6 1/8" 20' - 8" 1" 18' - 10 1/2"
5' - 6"
1' - 6" 10' - 6" 7' - 11" 8' - 5" 34' - 10" 4' - 3"
13' - 10" 8' - 1" 8' - 0 1/2" 37' - 5 1/8"
67' - 4 5/8" 2' - 7"
2' - 9"
20' - 8"
5' - 11 3/8"
13' - 1 1/2" 1' - 5 1/2"
CL CL
514 SF
UNIT A6
1BR
A11
1 A11 3 2 A11
422 SF
OUTDOOR LIVING
61 SF
DECK
56 SF
DECK
71 SF
DECK
Ground Floor
Footprint
Ground Floor
Footprint
A01
3 2 A01 1
0 4' 8' 16' 32'
GRAPHIC SCALE 1/8" = 1'-0"
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A04
LEVEL 2 FLOOR PLAN
December 20, 2022
59 UP
DN
A10
1 A10 3
971 SF
UNIT C1
3BR
776 SF
UNIT B1
2BR
641 SF
UNIT A2
1BR
614 SF
UNIT A2-1
1BR
614 SF
UNIT A2-1
1BR
685 SF
UNIT A4
1BR
17 SF
TRASH
1043 SF
UNIT C4
3BR
771 SF
UNIT B2
2BR
58 SF
TRASH CL
3 A09
2 2
A09
4 A09
1 A09
201 SF
OUTDOOR LIVING
96 SF
Laundry
55 SF
DECK
57 SF
DECK
62 SF
DECK
63 SF
DECK
56 SF
DECK
13' - 9 5/8" 10' - 6 1/2" 17' - 9 1/2" 8' - 5 1/2" 7' - 9" 7' - 5 1/2" 25' - 0" 12' - 8" 12' - 4" 20' - 11 1/2" 4 1/2" 12' - 1" 21' - 11" 11' - 3"
14' - 0 1/2" 24' - 6 1/2" 15' - 11 1/2" 13' - 11" 34' - 1" 13' - 10 1/4" 4' - 2 7/8"
115' - 9 5/8" 4' - 10 1/8"
102' - 6 1/2"
33' - 10" 16' - 11 1/2" 13' - 7"
64' - 4 1/2" 1 3/8" 5' - 6 3/8"
27' - 10 1/2"
11' - 7" 12' - 0" 11' - 8" 5' - 6" 10' - 10" 7' - 6 1/2" 7' - 5 1/2" 5' - 2" 5' - 6"
42' - 1 41/64" 23' - 8" 25' - 0" 25' - 0"
20' - 11 1/2" 45' - 7 1/2"
66' - 7" 3' - 2 1/64"
1' - 6" 4' - 9 1/2"
4' - 6" 7' - 6 1/2" 15' - 10"
1' - 0" 45' - 4 1/2" 17' - 6" 5' - 1"
63' - 10 1/2"
1' - 0" 27' - 0"
3' - 6 1/8" 20' - 8" 1" 18' - 10 1/2"
5' - 6"
10' - 6" 7' - 11" 8' - 5" 34' - 10" 4' - 3"
8' - 1" 8' - 0 1/2" 37' - 5 1/8"
1' - 5 1/2"
2' - 9"
20' - 8"
5' - 11 3/8"
55' - 5" 13' - 1 1/2"
CL
514 SF
UNIT A6
1BR
A11
1 A11 3 2 A11
56 SF
DECK
61 SF
DECK
67 SF
DECK
Ground Floor
Footprint
Ground Floor
Footprint
A01
3 2 A01 1
4 3/8"
2 3/4"
0 4' 8' 16' 32'
GRAPHIC SCALE 1/8" = 1'-0"
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A05
LEVEL 3 FLOOR PLAN
December 20, 2022
60 UP
DN
UP
A10
1 A10 3
682 SF
UNIT A3
1BR
776 SF
UNIT B1
2BR
971 SF
UNIT C1
3BR
1035 SF
UNIT C2
3BR
610 SF
UNIT A1
1BR
610 SF
UNIT A1
1BR
1043 SF
UNIT C4
3BR
514 SF
UNIT A6
1BR
771 SF
UNIT B2
2BR
58 SF
TRASH
3 A09
2 2
A09
4 A09
1 A09
67 SF
DECK
61 SF
DECK
67 SF
DECK
63 SF
DECK
56 SF
DECK
13' - 4" 28' - 9 43/64" 8' - 5 1/2" 7' - 9" 7' - 11" 12' - 10" 11' - 8 1/2" 12' - 2 1/2" 12' - 9 1/2" 5' - 8 1/2" 15' - 3" 4 1/2" 12' - 1" 21' - 11" 11' - 3" 13' - 10 1/4" 4' - 2 7/8"
66' - 7" 3' - 2"
102' - 6 1/2"
33' - 10"
64' - 4 1/2" 1 3/8" 5' - 6 3/8"
11' - 7" 12' - 0" 11' - 8"
1' - 8 1/2"
5' - 6" 10' - 10" 7' - 6 1/2" 7' - 5 1/2"
5' - 2" 5' - 6"
20' - 11 1/2" 45' - 7 1/2"
23' - 8" 25' - 0" 25' - 0"
1' - 6"
115' - 9 5/8" 4' - 10 1/8"
30' - 6 1/2"
14' - 0 1/2" 24' - 6 1/2" 15' - 11 1/2" 48' - 0"
14' - 4 1/2" 20' - 4 1/2" 13' - 3"
27' - 10 1/2"
4' - 6" 23' - 4 1/2"
42' - 1 5/8"
1' - 0" 45' - 4 1/2" 17' - 6" 5' - 1"
63' - 10 1/2"
1' - 0" 27' - 0"
20' - 8" 1" 18' - 10 1/2"
5' - 6"
18' - 5" 8' - 5" 34' - 10" 4' - 3"
8' - 0 1/2" 37' - 5 1/8"
2' - 9"
20' - 8"
5' - 11 3/8"
65' - 11" 1' - 5 1/2" 2' - 7 1/2"
18' - 5" 3' - 6 1/4"
CL CL
A11
1 A11 3 2 A11
56 SF
DECK
61 SF
DECK
71 SF
DECK
Ground Floor
Footprint
Ground Floor
Footprint
A01
3 2 A01 1
2 3/4"
4 3/8"
3' - 6 1/8"
0 4' 8' 16' 32'
GRAPHIC SCALE 1/8" = 1'-0"
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A06
LEVEL 4 FLOOR PLAN
December 20, 2022
61 DN
DN
A10
1 A10 3
597 SF
UNIT A2-2
1BR
1035 SF
UNIT C2
3BR
971 SF
UNIT C1
3BR
578 SF
UNIT A5
1BR
776 SF
UNIT B1
2BR
937 SF
UNIT B3
2BR
502 SF
UNIT A7
1BR
771 SF
UNIT B2
2BR
3 A09
2 2
A09
4 A09
1 A09
597 SF
UNIT A2-2
1BR
56 SF
DECK
63 SF
DECK
4' - 6 1/8"
4' - 0" 16' - 11 1/2" 4 1/2" 12' - 1" 21' - 4 1/2" 6 1/2" 11' - 3" 13' - 10 1/4" 4' - 2 7/8"
66' - 7" 3' - 2"
102' - 6 1/2"
33' - 10"
64' - 4 1/2" 1 3/8" 5' - 6 3/8"
11' - 7" 12' - 0" 11' - 8"
1' - 8 1/2"
5' - 6" 10' - 10" 7' - 6 1/2" 7' - 5 1/2"
5' - 2" 5' - 6"
20' - 11 1/2" 45' - 7 1/2"
37' - 7 1/2" 23' - 8" 1' - 0" 48' - 0" 1' - 0"
1' - 6"
30' - 6 1/2"
14' - 0 1/2" 24' - 6 1/2" 15' - 11 1/2" 48' - 0"
14' - 4 1/2" 20' - 4 1/2" 13' - 3"
27' - 10 1/2"
4' - 6" 23' - 4 1/2"
36' - 7 1/2" 9' - 5 1/2" 7' - 9" 7' - 5 1/2" 1' - 0" 24' - 0" 24' - 0" 110' - 3 1/2" 5' - 10 1/8"
CL CL
58 SF
TRASH
5' - 1"
63' - 10 1/2"
3' - 8 1/2" 24' - 3 1/2"
20' - 8" 1" 18' - 10 1/2"
5' - 6"
18' - 5" 8' - 5" 34' - 10" 4' - 3"
8' - 0 1/2" 37' - 5 1/8"
2' - 9"
20' - 8"
5' - 11 3/8"
65' - 11" 1' - 5 1/2" 2' - 7 1/2"
18' - 5" 3' - 6 1/4"
41 SF
STORAGE
A11
1 A11 3 2 A11
189 SF
DECK
91 SF
DECK
Ground Floor
Footprint
Ground Floor
Footprint
A01
3 2 A01 1
3' - 6 1/8"
1' - 0" 45' - 4 1/2" 12' - 5"
2 3/4"
0 4' 8' 16' 32'
GRAPHIC SCALE 1/8" = 1'-0"
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A07
LEVEL 5 FLOOR PLAN
December 20, 2022
62 A10
1 A10 3
3 A09
2 2
A09
4 A09
1 A09
SOLAR
SOLAR
2' - 0" 1' - 9"
A11
1 A11 3 2 A11
A01
3 2 A01 1
0 4' 8' 16' 32'
GRAPHIC SCALE 1/8" = 1'-0"
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A08
ROOF LEVEL PLAN
December 20, 2022
63 T ectoni Cp yright 207
LEVEL 1
0.00'
LEVEL 2
12.00'
LEVEL 3
22.00'
LEVEL 4
32.00'
T.O. PARAPET
56.50'
LEVEL 5
42.00'
ROOF
53.00'
11' - 0" 10' - 0" 10' - 0" 10' - 0" 12' - 0"
3' - 6" 53' - 0"
GARAGE
UNIT B2
UNIT B2
UNIT B2
UNIT B2
PROPERTY LINEPROPERTY LINE
11' - 0"
LEVEL 1
0.00'
LEVEL 2
12.00'
LEVEL 3
22.00'
LEVEL 4
32.00'
T.O. PARAPET
56.50'
LEVEL 5
42.00'
ROOF
53.00'
11' - 0" 10' - 0" 10' - 0" 10' - 0" 12' - 0"
3' - 6" 53' - 0"
GARAGE
UNIT A2-2
UNIT A1
UNIT A2-1
UNIT A1
?
SIDEWALK WIDTH
13' - 3 63/64" TO 13' - 6" PROPERTY LINE
4' - 0" STEPBACK
RES
G
R
OUND FLR HGHT
12' - 0"
PROPERTY LINE
11' - 0"
LEVEL 1
0.00'
LEVEL 2
12.00'
LEVEL 3
22.00'
LEVEL 4
32.00'
T.O. PARAPET
56.50'
LEVEL 5
42.00'
ROOF
53.00'
11' - 0" 10' - 0" 10' - 0" 10' - 0" 12' - 0"
3' - 6" 53' - 0"
GARAGE
PROPERTY LINEPROPERTY LINE
SIDEWALK WIDTH
13' - 0" TO 16' - 9"
UNIT C3
UNIT C4
UNIT C4
UNIT C4
UNIT B3
3' - 8 1/2"
5' - 8 1/2" ± 2' - 7 3/4"
11' - 0"
LEVEL 1
0.00'
LEVEL 2
12.00'
LEVEL 3
22.00'
LEVEL 4
32.00'
T.O. PARAPET
56.50'
LEVEL 5
42.00'
ROOF
53.00'
11' - 0" 10' - 0" 10' - 0" 10' - 0" 12' - 0"
3' - 6" 53' - 0"
GARAGE
UNIT C2
UNIT C2
UNIT A2
UNIT B1 UNIT A2
UNIT B1
UNIT B1
UNIT C1 UNIT B1
UNIT C1
UNIT C1
UNIT C1
PROPERTY LINEPROPERTY LINE
11' - 0"
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A09
BUILDING SECTIONS
December 20, 2022
3 1/8" = 1'-0"
BUILDING B SECTION 1
2 1/8" = 1'-0"
BUILDING A SECTION 2
4 1/8" = 1'-0"
BUILDING B SECTION 2
1 1/8" = 1'-0"
BUILDING A SECTION 1
64 LEVEL 1
0.00'
LEVEL 2
12.00'
LEVEL 3
22.00'
LEVEL 4
32.00'
T.O. PARAPET
56.50'
LEVEL 5
42.00'
ROOF
53.00'
53' - 0" 3' - 6"
LEVEL 1
0.00'
LEVEL 2
12.00'
LEVEL 3
22.00'
LEVEL 4
32.00'
T.O. PARAPET
56.50'
LEVEL 5
42.00'
ROOF
53.00'
3' - 6" 53' - 0"
LEVEL 1
0.00'
LEVEL 1
0.00'
LEVEL 2
12.00'
LEVEL 3
22.00'
LEVEL 4
32.00'
T.O. PARAPET
56.50'
LEVEL 5
42.00'
ROOF
53.00'
42.00'
LEVEL 5
32.00'
LEVEL 4
22.00'
LEVEL 3
12.00'
LEVEL 2
53' - 0" 3' - 6"53' - 0" 3' - 6"
53.00'
ROOF B
56.50'
T.O. PARAPET B
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A10
BUILDING STREET ELEVATIONS
December 20, 2022
2 1/8" = 1'-0"
Site B Hill Street Elevation
3 1/8" = 1'-0"
Site A Hill Street Elevation
1 1/8" = 1'-0"
El Camino Real Elevation
LEGEND:
1. Corrugated Metal Siding
2. Metal Panel System
3a. Stucco Color 1
3b. Stucco Color 2
3c. Stucco Color 3
3d. Stucco Color 4
4. Synthetic Wood Gaurdrail
5a. 3'-0" x 6'-0" Window
5b. 5'-0" x 6'-0" Window
5c. 2'-0" x 6'-0" Window
5d. 3'-0" x 4'-4" Window
6. Storefront Window
7. Wood look Aluminum Cladding
8. Metal Canopy
9. Concrete
NOTES:
1. Ground level windows along El Camino Real are
to have a min window transparency of 25%;
Ground level windows along Hill Street are to
have a min window transparency of 75%.
2. Provide a pattern and/or recess on the concrete
garage walls facing Hill Street.
3d 1 2
2 6
5a 5d
8 4
8 2 5a 1
4 8 4 7
5c 5a
5a
3a
3d
2 2 1
3a
5b
3c
4 3b
5b
4 5a
7 6 6
1 6
8 5a 1
3a
7 4
3c
5a
5b
4 5b
6 8
8 2
9 3a
3d
2 9
3a
9 65
LEVEL 1
0.00'
LEVEL 1
0.00'
LEVEL 2
12.00'
LEVEL 3
22.00'
LEVEL 4
32.00'
T.O. PARAPET
56.50'
LEVEL 5
42.00'
ROOF
53.00'
ADJACENT BUILDING OUTLINE
42.00'
LEVEL 5
32.00'
LEVEL 4
22.00'
LEVEL 3
12.00'
LEVEL 2
53.00'
ROOF B
56.50'
T.O. PARAPET B
3' - 6" 53' - 0"3' - 6" 53' - 0"3' - 6" 53' - 0"
LEVEL 1
0.00'
LEVEL 2
12.00'
LEVEL 3
22.00'
LEVEL 4
32.00'
T.O. PARAPET
56.50'
LEVEL 5
42.00'
ROOF
53.00'
ADJACENT BUILDING OUTLINE
LEVEL 1
0.00'
LEVEL 2
12.00'
LEVEL 3
22.00'
LEVEL 4
32.00'
T.O. PARAPET
56.50'
LEVEL 5
42.00'
ROOF
53.00'
ADJACENT BUILDING OUTLINE
3' - 6" 53' - 0"
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A11
BUILDING ELEVATIONS
December 20, 2022
5d 2 3a 5a
4 1 5b 8
3a
3b
5a
5a
1 1/8" = 1'-0"
South-West Elevation (Back)
3 1/8" = 1'-0"
Site B North-West Elevation 2 1/8" = 1'-0"
Site A South-East Elevation
4 LEGEND:
1. Corrugated Metal Siding
2. Metal Panel System
3a. Stucco Color 1
3b. Stucco Color 2
3c. Stucco Color 3
3d. Stucco Color 4
4. Synthetic Wood Gaurdrail
5a. 3'-0" x 6'-0" Window
5b. 5'-0" x 6'-0" Window
5c. 2'-0" x 6'-0" Window
5d. 3'-0" x 4'-4" Window
6. Storefront Window
7. Wood look Aluminum Cladding
8. Metal Canopy
9. Concrete
3a
Site A Building
Beyond
3a
9 9
5a 3a 2 3d 5a 1 2 3b 5b 3a
3c
3a
7 9
66 25' - 3 1/2" 5' - 8 1/2"
BEDROOM
10'-9" X 13'-3"
LIVING / DINING
11'-9" X 13'-2"
ENTRY
BATH
KITCHEN
CLOSET
DECK
13'-0" X 5'-0"
610 SF
UNIT A1
1BR
24' - 0"
LIVING
12'-0" X 13'-0" BEDROOM 1
11'-0" X 13'-0"
CLOSET BATH2
ENTRY
KITCHEN/
DINING
DECK
1043 SF
UNIT C4
3BR
BEDROOM 2
10'-0" X 11'-4"
BEDROOM 2
10'-0" X 11'-4"
BATH1
DECK
28' - 0"
46' - 4 1/2"
LIVING / DINING
12'-3" X 19'-9"
DECK
11'-9" X 5'-0"
KITCHEN
ENTRY
CLOSET
BEDROOM 2
10'-8" X 10'-3"
BEDROOM 1
10'-7" X 12'-0"
BATH
776 SF
UNIT B1
2BR
CLOSET
26' - 3"
35' - 3"
11' - 8" 12' - 0" 11' - 7"
24' - 6 1/2"
LIVING / DINING
12'-0" X 13'-0"
KITCHEN
ENTRY
BATH
CLOSET
CLOSET
BEDROOM 1
10'-11" X 11'-7"
BEDROOM 2
10'-0" X 10'-4"
771 SF
UNIT B2
2BR
CL
25' - 10"
10' - 2"
20' - 8"
BEDROOM 1
10'-0" X 10'-1"
BEDROOM 2
10'-0" X 10'-6"
BEDROOM 1
10'-10" X 10'-9"
KITCHEN /
DINING
LIVING
12'-0" X 13'-3"
DECK
12'-0" X 4'-6"
BATH 1
ENTRY
971 SF
UNIT C1
3BR
BATH 2
45' - 7 1/2"
27' - 11 1/2"
14' - 5" 14' - 8 5/8"
11' - 3" 21' - 11" 12' - 5 1/2"
©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A12
SAMPLE UNIT PLANS
December 20, 2022
1 1/4" = 1'-0"
UNIT A1
2 1/4" = 1'-0"
UNIT C4
3 1/4" = 1'-0"
UNIT B1
4 1/4" = 1'-0"
UNIT B2
5 1/4" = 1'-0"
UNIT C1
67 ©2018 Torti Gallas + Partners 601 West 5th Street, Suite 600, Los Angeles, CA 90071 213.607.0070
BELMONT AFFORDABLE HOUSING
A13
MATERIALS, COLORS AND SITE PHOTOS
December 20, 2022
68 1750\01\3385439.3
4858-0444-0145, v. 1
DISPOSITION, DEVELOPMENT AND LOAN AGREEMENT
BETWEEN
CITY OF BELMONT
AND
(LINC-HILL STREET, L.P.)
(HILL STREET AFFORDABLE HOUSING)
69 1750\01\3385439.3
4858-0444-0145, v. 1
i
ARTICLE 1. DEFINITIONS AND EXHIBITS ............................................................................. 2 Section 1.1 Definitions................................................................................................... 2 Section 1.2 Exhibits. ...................................................................................................... 8 ARTICLE 2. PREDISPOSITION REQUIREMENTS FOR CONVEYANCE OF THE PROPERTY .................................................................................................................................... 9 Section 2.1 Conditions Precedent to Disposition of Property........................................ 9 Section 2.2 City Approvals. ........................................................................................... 9 Section 2.3 Pro Forma and Financing Plan. ................................................................... 9 Section 2.4 Construction Plans and Building Permit. .................................................. 10 Section 2.5 Construction Contract. .............................................................................. 11 Section 2.6 Construction Bonds. .................................................................................. 11 Section 2.7 Developer Organizational Documents. ..................................................... 12 Section 2.8 City Documents. ....................................................................................... 12 Section 2.9 County Documents.................................................................................... 12 Section 2.10 Tax Credit Allocation and Equity Commitment. ...................................... 12 ARTICLE 3. DISPOSITION OF PROPERTY ............................................................................ 12 Section 3.1 Purchase and Sale. .................................................................................... 12 Section 3.2 Purchase Price. .......................................................................................... 12 Section 3.3 Opening Escrow. ....................................................................................... 12 Section 3.4 Close of Escrow. ....................................................................................... 12 Section 3.5 Costs of Escrow and Closing. ................................................................... 14 Section 3.6 Condition of Title. ..................................................................................... 15 Section 3.7 Condition of Property. .............................................................................. 15 ARTICLE 4. CONSTRUCTION OF DEVELOPMENT ............................................................. 17 Section 4.1 Construction and Operation Consistent with Agreements. ....................... 17 Section 4.2 Change in Construction Plans. .................................................................. 17 Section 4.3 Commencement of Development. ............................................................ 18 Section 4.4 Completion of the Development. .............................................................. 18 Section 4.5 Equal Opportunity. .................................................................................... 18 Section 4.6 Construction Under Laws. ........................................................................ 18 Section 4.7 Progress Report. ........................................................................................ 20 Section 4.8 Construction Responsibilities. .................................................................. 20 Section 4.9 Mechanics Liens, Stop Notices, and Notices of Completion.................... 20 Section 4.10 Inspections. ............................................................................................... 20 Section 4.11 Information. .............................................................................................. 21 Section 4.12 Records. .................................................................................................... 21 Section 4.13 Certificate of Completion. ........................................................................ 21 ARTICLE 5. City LOAN PROVISIONS ..................................................................................... 21 70 1750\01\3385439.3
4858-0444-0145, v. 1
ii
Section 5.1 City Loan. ................................................................................................. 21 Section 5.2 Use of City Loan. ...................................................................................... 21 Section 5.3 Regulatory Agreement. ............................................................................. 21 Section 5.4 Term of the City Loan............................................................................... 22 Section 5.5 Interest....................................................................................................... 22 Section 5.6 Disbursement of City Loan. ...................................................................... 22 Section 5.7 Repayment Schedule. ................................................................................ 23 Section 5.8 Reports and Accounting of Residual Receipts.......................................... 24 Section 5.9 Non-Recourse. .......................................................................................... 24 ARTICLE 6. ONGOING DEVELOPER OBLIGATIONS .......................................................... 25 Section 6.1 Applicability. ............................................................................................ 25 Section 6.2 Use of Development. ................................................................................ 25 Section 6.3 Affordability. ............................................................................................ 25 Section 6.4 Waiver of Rights of Protest....................................................................... 25 Section 6.5 Maintenance. ............................................................................................. 25 Section 6.6 Taxes and Assessments. ............................................................................ 26 Section 6.7 Mandatory Language in All Subsequent Deeds, Leases and Contracts. .................................................................................................. 26 Section 6.8 Hazardous Materials. ................................................................................ 28 Section 6.9 Management Agent. .................................................................................. 29 Section 6.10 Insurance Requirements. ........................................................................... 30 Section 6.11 Audits. ....................................................................................................... 32 Section 6.12 Notice of Litigation. .................................................................................. 32 ARTICLE 7. ASSIGNMENTS AND TRANSFERS ................................................................... 32 Section 7.1 Definitions................................................................................................. 33 Section 7.2 Purpose of Restrictions on Transfer. ......................................................... 33 Section 7.3 Prohibited Transfers. ................................................................................. 33 Section 7.4 Permitted Transfers. .................................................................................. 34 Section 7.5 Effectuation of Certain Permitted Transfers. ............................................ 34 Section 7.6 Other Transfers with City Consent. .......................................................... 35 Section 7.7 Termination of Limitations on Transfers. ................................................. 35 ARTICLE 8. DEFAULT AND REMEDIES ................................................................................ 35 Section 8.1 General Applicability. ............................................................................... 35 Section 8.2 No Fault of Parties. ................................................................................... 35 Section 8.3 Fault of City. ............................................................................................. 36 Section 8.4 Fault of Developer. ................................................................................... 36 Section 8.5 Notice and Cure Period Regarding Defaults. ............................................ 37 Section 8.6 Remedies. .................................................................................................. 38 Section 8.7 Right to Cure at Developer's Expense. ..................................................... 39 Section 8.8 Project Documents. ................................................................................... 39 Section 8.9 Rights of Mortgagees. ............................................................................... 39 71 1750\01\3385439.3
4858-0444-0145, v. 1
iii
Section 8.10 Remedies Cumulative. .............................................................................. 39 ARTICLE 9. SECURITY FINANCING AND RIGHTS OF HOLDERS ................................... 39 Section 9.1 No Encumbrances Except for Development Purposes. ............................ 39 Section 9.2 Holder Not Obligated to Construct. .......................................................... 40 Section 9.3 Notice of Default and Right to Cure. ........................................................ 40 Section 9.4 Failure of Holder to Complete Development............................................ 40 Section 9.5 Right of City to Cure................................................................................. 40 Section 9.6 Right of City to Satisfy Other Liens. ........................................................ 41 Section 9.7 Holder to be Notified. ............................................................................... 41 Section 9.8 Estoppel Certificate. .................................................................................. 41 ARTICLE 10. GENERAL PROVISIONS ................................................................................... 41 Section 10.1 Notices, Demands and Communications. ................................................. 41 Section 10.2 Non-Liability of Officials, Employees and Agents. ................................. 42 Section 10.3 Forced Delay. ............................................................................................ 42 Section 10.4 Inspection of Books and Records. ............................................................ 43 Section 10.5 Title of Parts and Sections. ....................................................................... 43 Section 10.6 General Indemnification; Claims by Third Parties. .................................. 43 Section 10.7 No Third-Party Beneficiaries. ................................................................... 44 Section 10.8 Applicable Law. ........................................................................................ 44 Section 10.9 No Brokers. ............................................................................................... 44 Section 10.10 Legal Actions. ........................................................................................... 44 Section 10.11 Severability. .............................................................................................. 44 Section 10.12 Binding Upon Successors. ........................................................................ 44 Section 10.13 Parties Not Co-Venturers. ......................................................................... 44 Section 10.14 Discretion Retained by City. ..................................................................... 45 Section 10.15 Time of the Essence. ................................................................................. 45 Section 10.16 Representation and Warranties of Developer. .......................................... 45 Section 10.17 Entry by the City ....................................................................................... 46 Section 10.18 Entire Understanding of the Parties. ......................................................... 46 Section 10.19 Amendments. ............................................................................................ 46 Section 10.20 City Approval............................................................................................ 46 Section 10.21 Counterparts; Multiple Originals. ............................................................. 47 Section 10.22 Termination. .............................................................................................. 47 Exhibit A: Legal Description of the Property
Exhibit B: Schedule of Performance
Exhibit C: Pro Forma
Exhibit D: Scope of Development
Exhibit E: Form of Grant Deed
Exhibit F: Form of Memorandum of DDA
Exhibit G: Form of Regulatory Agreement
Exhibit H: Form of Notice of Affordability Restrictions 72 1750\01\3385439.3
4858-0444-0145, v. 1
iv
Exhibit I: Form of Promissory Note
Exhibit J: Form of Deed of Trust
Exhibit K: Planning Commission Conditions of Approval
73 1
1750\01\3385439.3
4858-0444-0145, v. 1
DISPOSITION, DEVELOPMENT, AND LOAN AGREEMENT
(________________________)
This Disposition, Development, and Loan Agreement (the "Agreement") is dated as of ______, 202__, and is between the City of Belmont, a municipal corporation (the "City"), and Linc-Hill Street, L.P., a California limited partnership (the "Developer"), each individually a "Party" and collectively the "Parties," with reference to the following facts, understandings and intentions of the Parties:
RECITALS
A. Defined terms used but not defined in these recitals are as defined in Article 1 of this Agreement.
B. In accordance with Health & Safety Code Section 34176, the City is the successor to the "housing assets" (as defined in Health & Safety Section 34176) of the former Belmont Redevelopment Agency (the "Former Agency"). A Property of approximately 13,450 sq. ft. located at 876, 884, 898, and 900 El Camino Real at Hill Street in the City (APN’s 045-163-070, 045-162-070, 045-162-080, 045-162-090) is a "housing asset," as approved by the California Department of Finance on August 30, 2012. As the housing successor to the Former Agency, the City is the owner of the Property. The City is authorized to enter into this Agreement by Health & Safety Code Section 34176(a)(1).
C. The City and the Developer entered into that certain Exclusive Negotiating Agreement dated August 8, 2018, which the Parties subsequently amended to extend the negotiating term, (collectively the "ENA") to negotiate the terms and the conditions for the disposition of the Property and the loan of City funds to Developer to assist in the financing the construction of the Development on the Property.
D. The City and the Developer desire that the Development be constructed on the Property consistent with the provisions of Community Redevelopment Law regarding the use of property acquired with low-and-moderate income housing funds. To effectuate this purpose, the City will convey the Property to the Developer, subject to the terms and conditions of this Agreement.
E. The Property has been declared exempt surplus land by the City Council of the City under Government Code Section 54221(f)(1)(A) and has concluded based on the Developer's site plan and proposed affordability that proposed Development meets the affordability and design requirements of Government Code Section 37364. The California Department of Housing and Community Development has confirmed such exemption.
F. The City and the Developer desire for the Developer to construct the Development on the Property, consisting of approximately thirty-seven (37) units of multi-family rental housing (subject to City Planning approval process), of which eighteen (18) units will be restricted to occupancy by Very Low-Income Households.
G. The Developer's construction and operation of the Development is not financially feasible without the City's financial assistance. The City therefore desires to sell the Property to the Developer in accordance with the terms set forth in this Agreement, and to provide the 74 2
1750\01\3385439.3
4858-0444-0145, v. 1
Developer with the City Loan to provide construction funding in consideration for the Developer's agreement to construct and operate the Development consistent with this Agreement and the Regulatory Agreement, including without limitation, the occupancy and affordability restrictions. The amount of the City Loan provided pursuant to this Agreement does not exceed the amount of City's assistance necessary to make the Developer's acquisition of the Property and the construction and operation of the Development, as restricted by this Agreement, financially feasible.
H. The City has determined that the Developer has the necessary expertise, skill and ability to carry out the commitments set forth in this Agreement and that this Agreement is in the best interests of, and will materially contribute to the implementation of, the City's affordable housing goals through the joint development of the Property.
NOW, THEREFORE, incorporating the foregoing recitals, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Developer agree as follows:
AGREEMENT
The foregoing recitals are hereby incorporated by reference and made part of this Agreement.
ARTICLE 1.
DEFINITIONS AND EXHIBITS
Section 1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, the following definitions apply throughout this Agreement. (a) "Affordable Units" means the eighteen (18) Units to be developed on the Property to be occupied by Very Low-Income Households and available at an affordable housing cost as defined in accordance with Health & Safety Code Section 50052.5. (b) "Annual Financial Statement" means (i) the audited financial statement of Operating Expenses and Revenues, prepared at the Developer's expense, by an independent certified accountant reasonably acceptable to the City; (ii) sufficient back-up data to support the revenues and expenses claimed on the statement; and (iii) such additional information reasonably requested by the City, all of which shall form the basis for determining Residual Receipts. (c) "Annual Operating Expenses" means with respect to a particular fiscal year the following costs reasonably and actually incurred for operation and maintenance of the Project:
(1) Property taxes and assessments imposed on the Development; (2) Debt service currently due on a non-optional basis (excluding debt service due from residual receipts or surplus cash of the Development) on loans associated with construction of the Development and approved by the City in the Financing Plan pursuant to Section 2.4;
75 3
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(3) Property management fees and reimbursements;
(4) Premiums for property damage and liability insurance; (5) Utility services not paid for directly by tenants, including water, electrical, sewer, and trash collection;
(6) Maintenance and repair;
(7) Any annual license or certificate of occupancy fees required for operation of the Development;
(8) Security services;
(9) Advertising and marketing;
(10) Cash deposited into reserves for capital replacements of the Development;
(11) Cash deposited into an operating reserve;
(12) Resident services;
(13) Any previously unpaid portion of the Developer Fee due (without interest) not exceeding a cumulative amount of the Developer Fee; (14) An annual partnership management fee of Twenty-Five Thousand Dollars ($25,000), escalated by three percent (3%) per year; (15) An annual audit fee;
(16) Extraordinary operating costs specifically approved in writing by the City as part of the annual budget approval process pursuant to the Regulatory Agreement; (17) Payments of deductibles in connection with casualty insurance claims not normally paid from reserves;
(18) Fidelity bond premiums;
(19) The amount of uninsured losses actually replaced, repaired or restored, and not normally paid from reserves;
(20) Other ordinary and reasonable operating expenses approved in the Financing Plan or as otherwise approved in writing by the City and not listed above.
Annual Operating Expenses shall exclude the following: partnership or limited liability company distributions made to the Developer or constituent members of the Developer depreciation, amortization, depletion or other non-cash expenses; initial deposits to establish the operating reserve and the replacement reserve and any amount expended from a reserve account; 76 4
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and any capital cost with respect to the Development not otherwise listed above, as determined by the accountant for the Development.
(d) "Approved Financing" means the loans, equity, and other financing obtained by the Developer for the purpose of financing the costs of the Development that are approved by the City and consistent with the Financing Plan. (e) "Approved Plans" means all designs for the Development approved by the City in conjunction with the City Approvals prior to or concurrent with the Effective Date. (f) "Building Permit" means the building permit and all other ministerial construction permits required from the City and other governmental agencies to construct the Development.
(g) "Certificate of Completion" is defined in Section 4.13. (h) "Certificate of Occupancy" means a final certificate of occupancy issued by the City for the Development, or equivalent final inspection. (i) "Certified Access Specialist" means a certified access specialist registered with the State of California Department General Services Division of State Architect and who has met the requirements of Government Code Section 4459.5. (j) "City Documents" means, collectively, this Agreement, the Grant Deed, the Memorandum of DDA, the Promissory Note, the Deed of Trust, the Regulatory Agreement, the Notice of Affordability and any other documents executed by the City and Developer or by the Developer for the benefit of the City in connection with this Agreement. Notwithstanding anything to the contrary herein, the City will reasonably consider modifications to the City Documents requested by another lender to the Developer or the Developer’s investor limited partner.
(k) "City Approvals" is defined in Section 2.2.
(l) "City Event of Default" is defined in Section 8.3.
(m) "City Loan" means the loan by the City to the Developer in the amount not to exceed One Million Dollars ($1,000,000.00).
(n) "Close of Escrow" means the date on which a fee interest in the Property is conveyed to the Developer.
(o) "Complaining Party" is defined in Section 8.5.
(p) "Construction Plans" means the final construction plans for the construction of the Development as approved by the City in accordance with Section 2.5. (q) "Control" means the power to direct the day-to-day management responsibilities for the activities of Developer, and, with respect to a limited liability company, 77 5
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means the: (1) managing member or members; or (2) the right to exercise, directly or indirectly, more than fifty percent (50%) of the voting rights attributable to the limited liability company. (r) “County” means the County of San Mateo.
(s) “County Loan Documents” means the documents to be executed by the County and the Developer evidencing the County Loan.
(t) “County Loan” means the loan to the Developer by the County in the approximate amount of One Million Four Hundred Thousand Dollars ($1,400,000.00) (u) “Declaration of Default" is defined in Section 8.5. (v) “Deed of Trust” shall mean that deed of trust, assignment of rents, and security agreement placed on the Developer’s interest in the Property as security for the City Loan by the Developer as trustor with the City as beneficiary, as well as any amendments to, modifications of, and restatements of said deed of trust, attached hereto as Exhibit J. (w) "Defaulting Party" is defined in Section 8.5.
(x) Developer is defined in the introductory paragraph. (y) "Developer Fee” means the developer fee to be paid to [Linc Housing Corporation or Linc Community Development Corporation] in an amount not to exceed the amount permitted by TCAC, and shown on the approved Financing Plan. (z) "Developer Event of Default" is defined in Section 8.4. (aa) "Development" means the development of thirty-seven (37) apartment units to be developed on the Property, all as more particularly described in the Approved Plans. (bb) "Effective Date" shall mean the date which is the later of (i) the date this Agreement is executed by the Developer and (ii) the date this Agreement is approved and executed by the City.
(cc) "ENA" is defined in Recital C.
(dd) "Financing Plan" means the Developer's plan for financing the acquisition of the Property and the construction of the Development, including a detailed development budget and evidence of equity and debt financing reasonably satisfactory to the City, all of which is consistent with the Financial Proposal.
(ee) "Gross Revenue" with respect to a particular fiscal year shall mean all revenue, income, receipts, and other consideration actually received from operation and leasing of the Development. Gross Revenue shall include, but not be limited to: all rents, fees and charges paid by tenants, Section 8 payments or other rental subsidy payments received for the dwelling units, deposits forfeited by tenants, interest on tenant security deposits not otherwise required to be paid to tenants, all cancellation fees, price index adjustments and any other rental adjustments to leases or rental agreements; net proceeds from vending and laundry room 78 6
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machines; the proceeds of business interruption or similar insurance and not paid to senior lenders; the proceeds of casualty insurance not used to rebuild the Development or replace damaged property and not paid to senior lenders; and condemnation awards for a taking of part or all of the Development for a temporary period not paid to senior lenders. Gross Revenue shall not include tenants' security deposits, loan proceeds, capital contributions or similar advances. (ff) "Hazardous Materials" means any substance, material, or waste which is:
(1) defined as a "hazardous waste", "hazardous material," "hazardous substance," "extremely hazardous waste," "restricted hazardous waste," "pollutant" or any other terms comparable to the foregoing terms under any provision of California law or federal law; (2) petroleum; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; (6) MTBE; or (7) determined by California, federal or local government authority to be capable of posing a risk of injury to health, safety or property. Without limiting the foregoing, Hazardous Materials means and includes any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, a hazardous, toxic or radioactive substance, or other similar term, by any Hazardous Materials Laws including any federal, state or local environmental statute, regulation or ordinance presently in effect that may be promulgated in the future, as such statutes, regulations and ordinances may be amended from time to time.
The term "Hazardous Materials" does not include: (1) construction materials, gardening materials, household products, office supply products or janitorial supply products customarily used in the construction or maintenance, of residential developments, or typically used in office or residential activities; or (2) certain substances which may contain chemicals listed by the State of California under California Health and Safety Code Sections 25249.8 et seq., which substances are commonly used by a significant portion of the population living within the region of the Development, including, but not limited to, alcoholic beverages, aspirin, tobacco products, nutrasweet and saccharine, so long as such materials and substances are stored, used and disposed of in compliance with all applicable Hazardous Materials Laws. (gg) "Hazardous Materials Laws" means all federal, state, and local laws, ordinances, regulations, orders and directives pertaining to Hazardous Materials in, on or under the Development or any portion thereof.
(hh) "Management Agent" means Aperto Property Management, or a management agent retained by the Developer and approved by the City to manage the Development.
(ii) "Memorandum of DDA" means the Memorandum of Disposition, Development and Loan Agreement, in a form provided by the City, recorded against the Property at the Close of Escrow. The form of the Memorandum of DDA is attached to this Agreement as Exhibit F.
(jj) "Notice of Affordability Restrictions" means the Notice of Affordability Restrictions on Transfer of Property, in a form provided by the City, that will be recorded at the Close of Escrow in the Official Records against the Developer's fee interest in the Property and will restrict the development and operation of the Affordable Units to affordable housing under Sections 33334.3 and/or 334131(5) of the Community Redevelopment Law, or successor 79 7
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provisions. The form of the Notice of Affordability Restrictions is attached to this Agreement as Exhibit H.
(kk) "Notice of Default" is defined in Section 8.5.
(ll) "Official Records" means the official land records of San Mateo County. (mm) "Parties" means the City and the Developer and the term Party refers to each of them individually.
(nn) "Permanent Financing" means the sources of approved permanent financing as listed in the approved Financing Plan.
(oo) "Pro Forma " means the Developer's initial proposal for financing the acquisition of the Property and the construction of the Development, including an estimate of the sources and uses of funds, which is attached hereto as Exhibit C. (pp) "Promissory Note" shall mean the promissory note that will evidence the Developer's obligation to repay the City Loan as set forth in this Agreement, in a form to be agreed to by the Parties, substantially in form of Exhibit I. (qq) "Property" means the property generally described in the legal description attached as Exhibit A.
(rr) "Qualified Transferee" means an individual, general or limited partnership, limited liability partnership or company, corporation, trust, estate, real estate investment trust, association or any other entity that: (1) has the financial resources necessary to pay the expected costs necessary for the construction of the Development; (2) has experience and expertise in developing and operating projects similar in size and scope to the Development; and (3) in the reasonable discretion of the City, has an established and good business reputation, including an established record of maintaining fair employment practices. (ss) "Redevelopment Plan" means the redevelopment plan entitled "Redevelopment Plan for the Los Costanos Community Development Project," which was recorded in the Official Records on January 11, 1982 as instrument number 82002401 and modified on September 12, 1991 by instrument number 91120410 recorded in the Official Records, and as further amended from time to time.
(tt) "Regulatory Agreement" means the Regulatory Agreement and Declaration of Restrictive Covenants that will be recorded against the Developer's fee interest in the Property restricting the rent and household income levels for occupancy of eighteen (18) of the Units to Very-Low Households, substantially in the form of Exhibit G. (uu) "Residual Receipts" in a particular calendar year shall mean the amount by which Gross Revenue exceeds Annual Operating Expenses.
(vv) "Schedule of Performance" means the schedule attached as Exhibit B setting forth the anticipated schedule for the Developer's acquisition of the Property and the construction of the Development.
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(ww) "Scope of Development" shall mean the architectural plans for the Development as approved by the Belmont Planning Commission on February 7, 2023, which serve as a basis for the Developer's application for the City Approvals, which architectural plans are included as Exhibit D attached to this Agreement.
(xx) "Security Financing Interest" means a mortgage, deed of trust, or other reasonable method of security encumbering the Developer's fee interest in the Property that: (i) meets the requirements of this Agreement; and (ii) secures any construction or permanent loan or refinancing approved by the City in connection with the approval of the Financing Plan. (yy) “TCAC” means the California Tax Credit Allocation Committee. (zz) “TCAC Regulatory Agreement” means the regulatory agreement entered into between the Developer and TCAC regulating the affordability of the Development to be recorded as an encumbrance on the Property.
(aaa) "Third Party Challenge" is defined in Section 10.7. (bbb) "Title Company" means Commonwealth Land Title Company, or such other title company as the Parties may mutually select. (ccc) Title Report" means that certain title report dated ___________, issued by the Title Company for the Property and approved by the Developer and the City. (ddd) "Transfer" has the meaning set forth in Section 7.1. (eee) "Unit" means one of the residential units to be constructed on the Property.
(fff) "Very Low Income Household" means a household with an adjusted income that does not exceed the qualifying limits for very low income households, adjusted for actual household size, for San Mateo County, as published and periodically updated by HCD under Section 50105 of the California Health and Safety Code, or successor provision.
Section 1.2 Exhibits. The following exhibits are attached to and incorporated in the Agreement:
Exhibit A: Legal Description of the Property
Exhibit B: Schedule of Performance
Exhibit C: Pro Forma
Exhibit D: Scope of Development
Exhibit E: Form of Grant Deed
Exhibit F: Form of Memorandum of DDA
Exhibit G: Form of Regulatory Agreement
Exhibit H: Form of Notice of Affordability Restrictions Exhibit I: Form of Promissory Note
Exhibit J: Form of Deed of Trust
Exhibit K: Planning Commission Conditions of Approval
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ARTICLE 2.
PREDISPOSITION REQUIREMENTS FOR
CONVEYANCE OF THE PROPERTY
Section 2.1 Conditions Precedent to Disposition of Property. The requirements set forth in this Article 2 are conditions precedent to the City's obligation to convey the Property to the Developer. The City has no obligation to convey the Property to the Developer unless the Developer has satisfied the conditions precedent set forth in this Article 2 in the manner set forth below and within the timeframe set forth in the Schedule of Performance. Developer may request extensions to the time periods and dates set forth in the Schedule of Performance.
Section 2.2 City Approvals. Prior to or concurrent with the Effective Date, the City has approved all required discretionary permits for the Development (the "City Approvals").
Section 2.3 Pro Forma and Financing Plan. As of the Effective Date, the City has approved the Pro Forma shown in Exhibit C. The Pro Forma shall serve as the basis for the Financing Plan.
(a) The Developer shall cause the Financing Plan to be completed no later than the date set forth in the Schedule of Performance unless extended by written approval of the City Manager. The Financing Plan must include:
(1) All sources and uses, including all assumptions for debt and equity financing, for construction and permanent financing;
(2) Evidence of sufficient equity and debt commitments to fund the projected development costs for the Development.
(b) The City will approve or disapprove the Financing Plan in writing within fifteen (15) days after the City's receipt of all required documentation, or as soon as reasonably practicable thereafter. The City's approval shall not be unreasonably withheld and the City's approval or disapproval shall be limited to determining whether: (1) the financing will be available for construction and permanent financing as required by this Agreement; (2) the financing would provide sufficient funds to undertake and complete construction of the Development and all City improvements and costs required by City conditions of approval; and (3) to determine consistency with the terms of this Agreement and the Approved Plans; provided, however, in no event shall the City approve of any proposal that requires or contemplates that the Regulatory Agreement be subordinated to a Security Financing Interest. The Developer shall be required to update submissions made under this subsection (b) to the extent there are material changes to the terms of the Developer's financing for the construction of the Development. The Developer shall not rely on the City's approval of the Financing Plan as a representation of any kind. The City's approval shall merely constitute satisfaction of the conditions set forth in this Section.
(c) If the proposed Financing Plan is disapproved by the City, the Developer will have fifteen (15) days from the date of the Developer's receipt of the City's notice of disapproval to submit a revised Financing Plan. The provisions of this Section relating to time periods for approval, disapproval and resubmission of a new Financing Plan will continue to 82 10
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apply until the revised Financing Plan has been approved by the City; provided, however, that if the Developer fails to obtain the City's approval of the revised Financing Plan by the date set forth in the Schedule of Performance, the City may terminate this Agreement in accordance with Section 8.2.
(d) Except as otherwise permitted by the City Manager, all Approved Financing for the construction of the Project must be closed by the Developer prior to, or simultaneously with, the conveyance of the Property by the City to the Developer.
In the event after making a good faith effort, Developer is unable to obtain financing acceptable to the Developer and the City by the time set forth in the Schedule of Performance, either Party may terminate this Agreement by providing written notice to the other Party and thereafter neither Party shall have any rights against or liability to the other under this Agreement.
Section 2.4 Construction Plans and Building Permit. The Developer shall prepare construction plans for the construction of the Development. The final construction plans for the Development submitted by the Developer for City approval shall consist of all construction documentation upon which the Developer and its contractors shall rely in building the Development. Such construction plans shall include (without limitation) final architectural drawings, landscaping plans and specifications, final elevations, building plans and specifications (also known as "working drawings"). The construction plans shall be based upon the Approved Plans and shall not materially deviate from them without the written consent of the City.
(a) No later than the date set forth in the Schedule of Performance, the Developer shall apply for a Building Permit allowing for the construction of the Development called for in the construction plans. After submitting an application for a Building Permit, the Developer shall diligently pursue and obtain a Building Permit for the Development, no later than the date set forth in the Schedule of Performance. For the purposes of this Agreement, the Developer shall be deemed to have satisfied the obligation to obtain the Building Permit for the Development by delivering evidence to the City that the Developer is entitled to issuance of a Building Permit for the Development upon payment of applicable permit fees. Only upon delivery to the City of such evidence in a form reasonably satisfactory to the City shall the predisposition condition of this Section be deemed met. (b) As set forth in Section 10.14, the Developer acknowledges that execution of this Agreement by the City does not constitute approval by the City of any required permits and in no way limits the discretion of the City in the permit approval process. The Developer's failure to satisfy the requirements of this Section by the specific date set forth in the Schedule of Performance shall constitute a Developer Event of Default under Article 8. (c) As part of the Developer's application for a Building Permit, the City shall also have the right to review and approve the proposed construction plans for conformance with the Approved Plans and the other commitments made by the Developer to the City. The Developer acknowledges that the City's right to review and approve the proposed construction plans as allowed by this paragraph is in addition to, and shall not be limited by, the City's obligation to review the Developer's proposed construction plans for consistency with applicable building and construction code requirements. The Developer further acknowledges that the City 83 11
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shall have no obligation to approve such proposed plans in the event that the Developer fails to incorporate the City's reasonably requested changes or modifications to the proposed construction plans to conform to the Approved Plans (even in the event that such requested changes or modifications exceed the minimum thresholds set forth in the applicable building code and have not been required by the City's building department).
As approved, these construction plans for the applicable component of the Development shall be referred to as the "Construction Plans".
Section 2.5 Construction Contract. At least fifteen (15) days prior to the Close of Escrow, the Developer must submit the proposed construction contract for the Development to the City for its limited approval. Upon receipt of the proposed construction contract, the City will promptly review same and approve or disapprove it within ten (10) days, or as soon as reasonably practicable thereafter. The City's review and approval of such construction contract will be limited exclusively to a determination whether: (1) the guaranteed maximum construction cost set forth in the construction contract is consistent with the approved Financing Plan; (2) the construction contract is with a contractor duly licensed by the State of California and reasonably acceptable to the City; (3) the construction contract contains provisions consistent with Article 4 of this Agreement and is otherwise consistent with this Agreement. (a) If the proposed construction contract is disapproved by the City, the City must provide a written notice to the Developer that sets forth, in reasonable detail, the reasons the proposed construction contract was disapproved. The Developer will thereafter submit revised construction contracts for City approval, which approval may be granted or denied in five (5) business days in accordance with the criteria and procedures set forth above, or as soon as reasonably practicable thereafter. Any construction contract for Development executed by the Developer for the Development must be in a form approved by the City. (b) The Developer shall not rely on the City's approval of the construction contract(s) as a representation regarding the enforceability or business advantage of the construction contract(s). City approval shall merely constitute satisfaction of the condition set forth in this Section.
Section 2.6 Construction Bonds. At least ten (10) days prior to Close of Escrow, the Developer shall deliver to the City forms of one (1) labor and material bond and one (1) performance bond for the Development issued by a reputable insurance company licensed to do business in California, and named in the current list of "Surety Companies Acceptable on Federal Bonds" as published in the Federal Register by the Audit Staff Bureau of Accounts, U.S.
Treasury Department, and reasonably acceptable to the City, each in a penal sum of not less than one hundred percent (100%) of the scheduled cost of construction of the Development for the City's review and approval. The bonds shall name the City as co-obligee. Upon receipt by the City of the proposed payment and performance bonds, the City shall promptly review such bonds and approve them within ten days if they satisfy the criteria set forth above and include any other modification reasonably requested by the City, or as soon as reasonably practicable thereafter. If the payment and performance bonds are not approved by the City, the City shall set forth in writing and notify the Developer of the City's reasons for withholding such approval. The Developer shall thereafter submit revised payment and performance bonds for City approval, 84 12
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which approval shall be granted or denied in five (5) business days in accordance with the criteria and procedures set forth above, or as soon as reasonably practicable thereafter.
Section 2.7 Developer Organizational Documents. The Developer has provided the Developer organizational documents to the City for its review and the City has approved the documents.
Section 2.8 City Documents. The Developer and the City have executed the City Documents.
Section 2.9 County Documents. Prior to the approval of the County Documents by the County and at least fifteen (15) days prior to Close of Escrow, the Developer shall deliver to the City the County Documents, in substantially final form, for the City’s reasonable approval, or as soon as reasonably practicable thereafter. The City review of the County documents will be to confirm the County Documents are consistent with the approved Financing Plan.
Section 2.10 Tax Credit Allocation and Equity Commitment. Prior to the Close of Escrow, the Developer has received an allocation of Low-Income Housing Tax Credits from TCAC and a commitment from an investor limited partner to make an equity contribution in an amount consistent with Developer’s Pro Forma.
ARTICLE 3.
DISPOSITION OF PROPERTY
Section 3.1 Purchase and Sale. Provided the pre-disposition requirements set forth in Article 2 and the additional closing conditions set forth in Section 3.4 have been satisfied or waived, the City shall sell to the Developer, and the Developer shall purchase from the City, the Property pursuant to the terms, covenants, and conditions of this Agreement.
Section 3.2 Purchase Price. The purchase price for the Property shall be One Dollar ($1.00) to be paid by the Developer at the Close of Escrow (the “Purchase Price”) Section 3.3 Opening Escrow. To accomplish the transfer of the Property from the City to the Developer, the Parties will establish an escrow with the Title Company. The Parties will execute and deliver all written instructions to the Title Company to accomplish the terms hereof, which instructions must be consistent with this Agreement.
Section 3.4 Close of Escrow. Subject to the satisfaction or waiver of the closing conditions and predisposition conditions to the Close of Escrow set forth in Section 2.1, the Close of Escrow shall occur and the City shall convey, and the Developer shall accept conveyance of, fee simple title to the Property and Appurtenances pursuant to the Grant Deed, substantially in the form attached as Exhibit E. At or before Close of Escrow, the City and the Developer, as applicable, shall deliver to the Title Company and Escrow Holder the following (a) Deposits. The Developer shall deposit: (i) the Purchase Price, (ii) originals of each of the City Documents executed and acknowledged (as applicable) by the Developer, and (iii) any other documents that may be reasonably requested by the Escrow Holder and the Title Company and that are customarily delivered in connection with the closing of real estate 85 13
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transactions in San Mateo County, and any other documents that may be necessary in order to consummate the transactions contemplated under this Agreement. (b) City Conditions Precedent: The following conditions must be satisfied prior to or concurrently with, and as conditions of, the Close of Escrow:
(1) The conditions precedent set forth in Article 2 above have been satisfied in accordance with the Schedule of Performance. (2) There exists no condition, event or act which would constitute a breach or default by the Developer under this Agreement, the City Documents, or under any other project financing agreements or contracts related to the Development, or which, upon the giving of notice or the passage of time, or both, would constitute such a breach or default. (3) All representations and warranties of the Developer contained in this Agreement and in any of the City Documents are true and correct in all material respects as of the date of the Close of Escrow.
(4) The Developer has provided the City with a certified copy of a Developer’s authorizing resolution, approving the transactions contemplated under the City Documents and the Developer’s execution of the City Documents. (5) The Developer has deposited into escrow the Promissory Note, Memorandum of DDA, the Deed of Trust and the Regulatory Agreement. (6) The Developer and the County have executed the County Documents and deposited the County recordable documents with the Title Company for recording.
(7) The Developer has received an allocation of 9% or 4% Low Income Housing Tax Credits from TCAC, in an amount that would generate an equity investment that substantially conforms to the equity projections in the Developer’s pro-forma. (8) There exists no material adverse change in the financial condition of Developer from that shown by the financial statements and other data and information furnished by Developer to the City prior to the Effective Date. (9) The Developer has furnished the City with evidence of the insurance coverage meeting the insurance requirements set forth in Section 6.11. (10) Developer has closed, or is concurrently closing, on the Approved Financing necessary for the construction of the Development and is eligible to receive the proceeds of all construction loans consistent with the Financing Plan. (11) Developer has obtained the Building Permit or has provided the City with a permit-ready to issue letter from the City's Building Department. (12) There is no existing, pending or threatened litigation, suit, action or proceeding before any court or administrative agency affecting the City or the Developer or the 86 14
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Property that would, if adversely determined, materially adversely affect the Development or the Developer's or the City's ability to perform their obligations under this Agreement or the Developers' ability to develop and operate the Development. (c) Developer Conditions Precedent: Developer’s obligation to proceed with the acquisition of the Property from the City pursuant to the terms of this Agreement is subject to the fulfillment or waiver by Developer of each and all of the conditions precedent described below (“Developer Conditions Precedent”). The Developer Conditions Precedent are solely for the benefit of the Developer and shall be fulfilled or waived within the time periods provided for herein, and in any event, no later than the date specified in the Schedule of Performance. (1) There exists no condition, event or act which would constitute a breach or default under this Agreement, the City Documents, the Development Approvals, or under any other project financing agreements or contracts related to the Development, or which, upon the giving of notice or the passage of time, or both, would constitute such a breach or default by the City.
(2) Subject to payment of the applicable fees, City shall be ready to issue the building permit(s) necessary for the Developer to Commence Construction of the Development.
(3) The Title Company shall, upon payment of Title Company’s regularly scheduled premium, be irrevocably committed to issue a title policy upon recordation of the Grant Deed insuring Developer’s fee interest in the Property, subject only to the exceptions in Section 3.7 below.
(4) There shall be an absence of any condemnation, environmental or other pending governmental or any type of administrative or legal proceedings with respect to the Property which would materially and adversely affect Developer’s intended uses of the Property or the value of the Property.
(5) There shall not have occurred between the Effective Date and the Closing a material adverse change to the physical condition of the Property. (6) There is no existing, pending or threatened litigation, suit, action or proceeding before any court or administrative agency affecting the City or the Developer or the Property that would, if adversely determined, materially adversely affect the Development or the Developer's or the City's ability to perform their obligations under this Agreement or the Developers' ability to develop and operate the Development.
Section 3.5 Costs of Escrow and Closing. Ad valorem taxes and other taxes, if any, will be prorated as of the date of conveyance of the Property from the City to the Developer.
The lien of any bond or assessment shall be assumed by the Developer and assessments payable shall be prorated as of the date of conveyance. The City shall pay any delinquent ad valorem taxes and any amounts owning for delinquent bonds and assessments as of the date of conveyance. The Developer must pay the cost of title insurance, transfer tax, Title Company document preparation, recordation fees, and the escrow fees of the Title Company, if any, and any additional costs to close the escrow.
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Section 3.6 Condition of Title. Upon the Close of Escrow, the Developer will have an insurable fee interest in the Property which will be free and clear of all liens, encumbrances, clouds and conditions, rights of occupancy or possession, except:
(a) applicable building and zoning laws and regulations; (b) the provisions of the Redevelopment Plan;
(c) the Memorandum of DDA;
(d) the Regulatory Agreement;
(e) any lien for current taxes and assessments or taxes and assessments accruing subsequent to Close of Escrow; and
(f) exceptions shown in the Title Report
Section 3.7 Condition of Property.
(a) City Information. In fulfillment of the purposes of Health and Safety Code Section 25359.7(a), to the City's Current Actual Knowledge, no release of Hazardous Materials has come to be located on or beneath the Property except as previously disclosed by the City to the Developer. During the Negotiating Period, as defined in the ENA, the Developer completed all due diligence activities, including but not limited to a physical adequacy determination of the Property, and may not terminate this Agreement as a result of the purported physical unsuitability of the Property. As used in this Agreement, the phrase "to the City's Current Actual Knowledge" and words of similar import shall mean the actual knowledge of Afshin Oskoui, the City Manager (the "City Representative"), on behalf of the City, as of the Effective Date, without any duty of separate inquiry and investigation. The City represents and warrants that the City Representative is that person affiliated with the City most knowledgeable regarding the ownership and operation of the Property. Developer hereby agrees that the foregoing person shall not have or incur any personal liability for the breach of any representation or warranty in this Agreement, and that Developer's sole remedy for any such breach shall be against the City.
(b) "As is" Conveyance. Prior to the effective date, the Developer was provided the opportunity to investigate the Property and has approved the physical condition of the Property. The Developer specifically acknowledges and agrees that the City is selling to the Developer the Property(and all thereon) on an "as is with all faults" basis and that the Developer is not relying on any representations or warranties of any kind whatsoever, express (except as expressly set forth in this agreement) or implied, from the City as to any matters concerning the Property, including without limitation: (1) the quality, nature, adequacy and physical condition of the Property (including, without limitation, topography, climate, air, water rights, water, gas, electricity, utility services, grading, drainage, sewers, access to public roads and related conditions); (2) the quality, nature, adequacy, and physical condition of soils, geology, and groundwater; (3) the existence, quality, nature, adequacy and physical condition of utilities serving the Property; (4) the development potential of the Property, and the Property's use, habitability, merchantability, or fitness, suitability, value or adequacy of the Property for any 88 16
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particular purpose; (5) public or private restrictions on the use of the Property; (6) the compliance of the Property or its operation with any applicable codes, laws, regulations, statutes, ordinances, covenants, conditions and restrictions of any governmental or quasi-governmental entity or of any other person or entity; (7) the presence or absence of hazardous materials on, under or about the Property or the adjoining or neighboring property; and (8) the condition of title to the Property. The Developer affirms that the Developer has not relied on the skill or judgment of the City or any of its agents, employees or contractors to select or furnish the Property for any particular purpose, and that the City makes no warranty that the Property is fit for any particular purpose. The Developer acknowledges that it shall use its independent judgment and make its own determination as to the scope and breadth of its due diligence investigation which it shall make relative to the Property and shall rely upon its own investigation of the physical, environmental, economic, and legal condition of the Property (including, without limitation, whether the Property is located in any area which is designated as a special flood hazard area, dam failure inundation area, earthquake fault zone, seismic hazard zone, high fire severity area or wildland fire area, by any federal, state or local agency). The Developer undertakes and assumes all risks associated with all matters pertaining to the Property's location in any area designated as a special flood hazard area, dam failure inundation area, earthquake fault zone, seismic hazard zone, high fire severity area or wildland fire area by any federal, state or local agency.
(c) Survival. The terms and conditions of this Section expressly survive the Close of Escrow. The City is not liable or bound in any manner by any oral or written statements, representations, or information pertaining to the Property furnished by any contractor, agent, employee, servant, or other person. The Developer acknowledges that the Purchase Price will reflect the "as is" nature of this sale and any faults, liabilities, defects, or other adverse matters that may be associated with the Property. The Developer has fully reviewed the disclaimers and waivers set forth in this Agreement with the Developer's counsel and understands the significance and effect thereof.
(d) Acknowledgment. The Developer acknowledges and agrees that: (1) to the extent required to be operative, the disclaimers of warranties contained in this Section are "conspicuous" disclaimers for purposes of all applicable laws and other legal requirements; and (2) the disclaimers and other agreements set forth in such sections are an integral part of this Agreement and that the City would not have agreed to sell the Property to the Developer without the disclaimers and other agreements set forth in this Section. (e) Developer's Release of the City. The Developer, on behalf of itself and anyone claiming by, through or under the Developer hereby waives its right to recover from and fully and irrevocably releases the City, its City Council members, officers, directors, representatives, consultants, employees and agents (the "Released Parties") from any and all claims, responsibility, and/or liability that the Developer may have or hereafter acquire against any of the Released Parties for any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or related to: (1) the condition (including any construction defects, errors, omissions or other conditions, latent or otherwise), valuation, salability or utility of the Property, or its suitability for any purpose whatsoever; (2) any presence of Hazardous Materials; and (3) any information furnished by the Released Parties under or in connection with this Agreement.
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(f) Scope of Release. The release set forth in Section 3.7(e) above includes claims of which the Developer is presently unaware or which the Developer does not presently suspect to exist which, if known by the Developer, would materially affect the Developer's release of the Released Parties. The Developer specifically waives the provision of any statute or principle of law that provides otherwise. In this connection and to the extent permitted by law, the Developer agrees, represents and warrants that the Developer realizes and acknowledges that factual matters now unknown to the Developer may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and the Developer further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that the Developer nevertheless hereby intends to release, discharge and acquit the Released Parties from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses. Accordingly, the Developer, on behalf of itself and anyone claiming by, through or under the Developer, hereby assumes the above-mentioned risks and hereby expressly waives any right the Developer and anyone claiming by, through or under the Developer, may have under Section 1542 of the California Civil Code, which reads as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
Developer's Initials: __________
Notwithstanding the foregoing, this release does not apply to, nor will the City be released from, the City's actual fraud or misrepresentation.
ARTICLE 4.
CONSTRUCTION OF DEVELOPMENT
Section 4.1 Construction and Operation Consistent with Agreements. Unless modified by operation of Section 4.2, the Development must be constructed substantially in accordance with the Scope of Development, the Construction Plans and the terms and conditions of the Approved Plans and the City Approvals. The Developer shall comply with all standards and requirements for construction, use, operation, maintenance, management and encumbrance of the Development which are set forth in this Agreement and the City Approvals. As between the City and the Developer, the Developer shall be solely responsible for all costs necessary for the construction and operation of the Development, including, but not limited to, any construction cost overruns.
Section 4.2 Change in Construction Plans.
(a) If the Developer desires to make any material change (as defined below) in the Development which are not substantially consistent with the Construction Plans, the Developer must submit the proposed change to the City for its approval. If the Development, as modified by any such proposed change, will conform to the requirements of this Agreement and the Approved Plans, the City will approve the change by notifying the Developer in writing. For 90 18
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purposes of this Section, a "material change" is one involving a change in exterior design, building materials, or colors, a change in interior or exterior design that would modify the uses to which the Development may be put, or a change that would reduce the number of parking spaces in the Development.
(b) The City must use good faith best efforts to either approve or disapprove a proposed change within ten business days following the City's receipt of the proposed change, or as soon as reasonably practicable thereafter. If disapproved, the previously approved Construction Plans will continue to remain in full force and effect. If the City rejects a proposed change, the City must provide the Developer with the specific reasons therefor. (c) The approval of changes in the Construction Plans by the City under this Section are in addition to any approvals required to be obtained from the City under Building Permit or other requirements. Approval of changes in the Construction Plans by the City under this Agreement is separate and distinct from approval by the City in its land use, permitting, or other capacity and may in no way limit the City's discretion in approving changes to the Construction Plans nor limit the time required to review such changes.
Section 4.3 Commencement of Development. The Developer must commence construction of the Development no later than the date set forth in the Schedule of Performance and in no event more than thirty (30) days after Close of Escrow. Once the Developer commences construction of the Development, the Developer must diligently prosecute to completion the Development and not halt or permit the cessation of construction for such work for a period of more than thirty (30) days, subject to forced delays described in Section 10.3 below, except to the extent required by applicable law.
Section 4.4 Completion of the Development. Subject to Section 10.3 below, the Developer must diligently prosecute to completion the construction of the Development no later the date set forth in the Schedule of Performance but in no event more than thirty (30) months after Close of Escrow and subject to the provisions of Section 10.3.
Section 4.5 Equal Opportunity. During the construction of the Development, the Developer, and its successors, assigns, and subcontractors must not discriminate against any employee or applicant for employment in connection with the construction of the Development on any basis listed in Section 12940 of the Government Code. Each of the following activities must be conducted in a non-discriminatory manner: hiring; upgrading; demotion and transfers; recruitment and recruitment advertising; layoff and termination; rate of pay and other forms of compensation; and selection for training including apprenticeship.
Section 4.6 Construction Under Laws.
(a) Compliance with Project Documents. Developer shall construct the Development in conformance with the Approved Plans, Approved Financing, and Financing Plan and consistent with the City Approvals. Developer shall notify the City in a timely manner of any changes in the work required to be performed under this Agreement, including any additions, changes, or deletions to the plans and specifications approved by the City. 91 19
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(b) Compliance with Laws. Developer shall cause all construction work to be performed in compliance with, without limitation: (1) all applicable laws, ordinances, rules and regulations of federal, state, county or municipal governments or agencies now in force or that may be enacted hereafter, including without limitation state prevailing wages pursuant to Labor Code Section 1770 et seq., and the regulations pursuant thereto, as further set forth in subsection (c) below; (2) all applicable federal and state accessibility requirements, including but not limited to the Fair Housing Act; Section 504 of the Rehabilitation Act of 1973 and its implementing regulations at 24 CFR 8, the Uniform Federal Accessibility Standards; Title II and/or Title III of the Americans with Disabilities Act; and Title 24 of the California Code of Regulations (collectively the "Accessibility Requirements"), as further set forth in subsection (d) below; and (3) all directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of every governmental agency now having or hereafter acquiring jurisdiction. The work shall proceed only after procurement of each permit, license, or other authorization that may be required by any governmental agency having jurisdiction, and Developer shall be responsible to the City for the procurement and maintenance thereof, as may be required of Developer and all entities engaged in work on the construction. (c) Prevailing Wages. To the extent required by applicable law, the Developer shall pay or cause to be paid to all workers employed in connection with the construction of the Development, not less than the prevailing rates of wages, as provided in the statutes applicable to City public work contracts, including without limitation Sections 33423- 33426 of the California Health and Safety Code and Sections 1770-1780 of the California Labor Code. The Developer agrees to include, or cause to be included, the above provision, to be applicable to contractors and subcontractors, in each contract and subcontract for work covered under this Agreement.
(d) The Developer shall monitor and enforce the prevailing wage requirements imposed on its contractors and subcontractors, including withholding payments to those contractors or subcontractors who violate these requirements. In the event that the Developer fails to monitor or enforce these requirements against any contractor or subcontractor, the Developer shall be liable for the full amount of any underpayment of wages, plus costs and attorneys' fees, as if the Developer was the actual employer, and the City may withhold monies owed to the Developer, may impose penalties on the Developer in the amounts specified herein, may take action directly against the contractor or subcontractor as permitted by law, and/or may declare the Developer in default of this Agreement and pursue any of the remedies available under this Agreement.
(e) The Developer will indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) the City against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including the Developer, its contractor and subcontractors) to pay prevailing wages as determined pursuant to California Labor Code Sections 1720 et seq., to employ apprentices pursuant to California Labor Code Sections 1777.5 et seq., to meet the conditions of California Labor Code Section 1771.4, and implementing regulations of the DIR, or to comply with the other applicable provisions of California Labor Code Sections 1720 et seq., 1777.5 et seq., and 1771.4, and the implementing regulations of the DIR, in connection with the construction of the Development or any other work undertaken or in connection with the Property. The requirements in this subsection (d) shall survive the termination of this Agreement. 92 20
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Section 4.7 Progress Report. Until such time as the Developer has completed construction of the Development, as evidenced by the Certificate of Completion, the Developer must provide the City with quarterly progress reports, or more frequent updates if the City reasonably requires, regarding the status of the construction of the Development.
Section 4.8 Construction Responsibilities.
(a) The Developer must coordinate and schedule the work to be performed so that commencement and completion of construction will take place in accordance with this Agreement.
(b) The Developer is solely responsible for all aspects of the Developer's conduct in connection with the Development, including but not limited to the quality and suitability of the Construction Plans, the supervision of construction work, and the qualifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Any review or inspection undertaken by the City with reference to the Development is solely for the purpose of determining whether the Developer is properly discharging its obligations to the City and should not be relied upon by the Developer or by any third parties as a warranty or representation by the City as to the quality of the design or construction of the Development.
Section 4.9 Mechanics Liens, Stop Notices, and Notices of Completion. (a) If any claim of lien is filed against the Property or the Development or a stop notice is served on any lender or other third party in connection with the Development, then the Developer must, within twenty (20) days after such filing or service, either pay and fully discharge or cause the Developer's contractor to pay and fully discharge, the lien or stop notice, effect the release of such lien or stop notice by delivering to the City a statutory surety bond that, or provide the City with other assurance reasonably satisfactory to the City that the claim of lien or stop notice will be paid or discharged.
(b) If the Developer fails to discharge any lien, encumbrance, charge, or claim in the manner required in this Section or obtain a surety bond, then in addition to any other right or remedy, the City may (but is under no obligation to) discharge such lien, encumbrance, charge, or claim at the Developer's expense. Alternatively, the City may require the Developer to immediately deposit with the City the amount necessary to satisfy such lien or claim and any costs, pending resolution thereof. The City may use such deposit to satisfy any claim or lien that is adversely determined against the Developer.
(c) The Developer must file a valid notice of cessation or notice of completion upon cessation of construction of the Development for a continuous period of thirty (30) days or more and take all other reasonable steps to forestall the assertion of claims of lien against the Property or the Development. The Developer authorizes the City, but without any obligation, to record any notices of completion or cessation of labor, or any other notice that the City deems necessary or desirable to protect its interest in the Development and Property.
Section 4.10 Inspections. The Developer must permit and facilitate, and require its contractors to permit and facilitate, observation and inspection at the Development by the City and by public authorities during reasonable business hours.
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Section 4.11 Information. The Developer must provide any information reasonably requested by the City in connection with the Development.
Section 4.12 Records.
(a) The Developer must maintain complete, accurate, and current records pertaining to the Development for a period of five (5) years after the creation of such records, and permit any duly authorized representative of the City to inspect and copy records during regular business hours. Records must be kept accurate and current. (b) The City will notify the Developer of any records it deems insufficient.
The Developer will have thirty (30) days after the receipt of such a notice to correct any deficiency in the records specified by the City in such notice, or if a period longer than thirty (30) days is reasonably necessary to correct the deficiency, then the Developer must begin to correct the deficiency within thirty (30) days and complete the correction of the deficiency as soon as reasonably possible.
Section 4.13 Certificate of Completion. Promptly after completing the Development in accordance with those provisions of this Agreement that relate solely to the obligations of Developer to construct the Development (including the dates for beginning and completion thereof), upon the Developer's request, the City will provide a Certificate of Completion so certifying (the "Certificate of Completion"). The Certificate of Completion will be the conclusive determination that certain covenants in this Agreement with respect to the obligations of the Developer to construct the Development (excluding the Developer's compliance with Section 4.6) and the dates for the beginning and completion thereof have been met. The Certificate of Completion shall be in such form as will enable such certificate to be recorded in the Official Records. The Certificate of Completion will not constitute evidence of compliance with or satisfaction of any obligation of the Developer to: (a) any holder of a Security Financing Interest; (b) pay prevailing wages; or (c) comply with the Accessibility Requirements. The Certificate of Completion may not be deemed a notice of completion under the California Civil Code.
ARTICLE 5.
CITY LOAN PROVISIONS
Section 5.1 City Loan. Subject to the terms and conditions set forth in this Agreement, the City shall make a loan to the Developer in the original principal amount of up to Two Million Dollars ($2,000,000.00). The City Loan shall be evidenced by the Promissory Note executed by Developer in favor of City in the amount of the City Loan and secured by the Deed of Trust executed by the Developer as trustor in favor of the City as beneficiary and recorded against the Developer’s fee interest in the Property.
Section 5.2 Use of City Loan. The proceeds of the City Loan may only be used to fund the payment of fees and costs reasonably approved by the City related to the development of the Development on the Property.
Section 5.3 Regulatory Agreement. Upon the closing of the City Loan for the development of the Development on the Property, the Developer shall execute the Regulatory 94 22
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Agreement and record it against the Property. The Regulatory Agreement shall remain in full force and effect for the entire term of the City Loan, regardless of any repayment of the City Loan following a Developer Event of Default or otherwise.
Section 5.4 Term of the City Loan. Unless sooner due under the terms of the Note, all principal and interest on the City Loan shall be due upon the earliest of:
(a) a Transfer of the Project or the Developer’s interest in the Property other than a Transfer permitted or approved by the City as provided in Section 10.6; (b) the occurrence of a Developer Event of Default for which the City exercises its right to cause the City Loan indebtedness to become immediately due and payable, or
(c) a default under the Regulatory Agreement which has not been cured within the time periods specified therein.
(d) Minimum Fifty-seven (57) years from the date of the City Promissory Note, or longer as needed to comply with all project financing requirements.
Section 5.5 Interest. Simple interest at three percent (3%) per annum shall accrue on the principal amount of the City Loan except in a Developer Event of Default, whereupon interest shall accrue from and after the date of the Promissory Note until paid at the rate of ten percent (10%) or the highest rate permitted by law. Interest payments shall be structured as residual receipts payments over the course of the City Loan.
Section 5.6 Disbursement of City Loan. The funds for the construction of the Development shall be disbursed in accordance with the following provisions of this Section. The City shall not be obligated to make any disbursement of the City Loan unless the following conditions precedent are satisfied prior to the disbursement:
(1) There shall exist no condition, event, or act which would constitute a breach or default under this Agreement, or any City Document or which, upon the giving of notice or the passage of time, or both would constitute such a breach or default. (2) The Developer has satisfied all of the predisposition requirements set forth in Article 2 and Article 3, and the Developer has acquired the Property in accordance with Article 4.
(3) The Developer has furnished the City with evidence of the insurance coverage meeting the requirements of Section 6.11, below (4) The City has received a written draw request from the Developer, including certification that the condition set forth in Section 5.6(1) continues to be satisfied, and setting forth the proposed uses of funds consistent with the City approved Financing Plan, the amount of funds needed, and, where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. When a disbursement is requested to pay any contractor in connection with improvements on the Property, the written request must be accompanied by: (i) where applicable, certification by the Developer's architect reasonably acceptable to the City that 95 23
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the work for which disbursement is requested has been completed (although the City reserves the right to inspect the Property and make an independent evaluation); and (ii) lien releases and/or mechanics lien title insurance endorsements reasonably acceptable to the City. (5) Provided the conditions set forth above have been satisfied, the City shall from time to time (but not more frequently than one (1) time per month) disburse the Construction Component funds to the Developer no later than fourteen (14) days following the City's receipt and approval of draw request. In the event the City disapproves of the draw request, the City shall provide a written notice to the Developer setting forth the City's reasons for such disapproval. Thereafter, upon the disbursement of the Construction Component funds to the Developer, the Developer shall directly pay the vendor as set forth on the approved invoice no later than thirty (30) days following receipt of such invoice. Upon written request from the City, the Developer shall provide the City with a copy of each check and such other documentation reasonably requested by the City to document the use of the proceeds of the Construction Component.
(6) A title insurer reasonably acceptable to the City is unconditionally and irrevocably committed to issuing an LP-10 2006 ALTA Lender's Policy of insurance insuring the priority of the Regulatory Agreement and the Deed of Trust in the amount of the City Loan subject only to such exceptions and exclusions as may be reasonably acceptable to the City, and containing such endorsements as the City may reasonably require.
Section 5.7 Repayment Schedule. The City Loan shall be repaid as follows:
(a) Payments. Commencing on the first April 1st following the completion of the Development pursuant to this Agreement, and on each April 1st thereafter until the Promissory Note is paid in full, the Developer shall make repayments of the City Loan from fifty percent (50%) of Residual Receipts equal to a percentage based on the [total principal amount of City Loan committed to the Developer compared to the total principal amount of the County Loan committed to the Developer, and any other public entity loans included on the Approved Financing Plan, as of the Close of Escrow]. The Developer shall provide the City, within sixty (60) days following the end of each of the Developer's fiscal year, a report showing the actual income and expenditures with respect to the Development for the immediately preceding fiscal year, the calculation of Annual Operating Expenses, Gross Revenue, and Residual Receipts and the status of all reserve funds. Payments made shall be credited first against accrued interest and then against outstanding principal.
(b) Payment in Full. All principal and interest, if any, on the City Loan shall, at the option of the City, be due and payable upon the earliest of: (1) a Transfer other than a Transfer permitted or approved by the City as provided in Article 7 below; (2) the occurrence of an Event of Default for which the City exercises its right to cause the City Loan indebtedness to become immediately due and payable; or (3) the maturity date of the Promissory Note (c) Prepayment. The Developer shall have the right to prepay the City Loan at any time.
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Section 5.8 Reports and Accounting of Residual Receipts. (a) Audited Financial Statement. In connection with the annual repayment of the City Loan, the Developer shall furnish to the City an audited statement duly certified by an independent firm of certified public accountants approved by the City, setting forth in reasonable detail the computation and amount of Residual Receipts during the preceding fiscal year. (b) Books and Records. The Developer shall keep and maintain full, complete and appropriate books, record and accounts relating to the Development, including all such books, records and accounts necessary or prudent to evidence and substantiate in full detail the Developer's calculation of Residual Receipts. Books, records and accounts relating to the Developer's compliance with the terms, provisions, covenants and conditions of this Agreement shall be kept and maintained in accordance with generally accepted accounting principles consistently applied and shall be consistent with requirements of this Agreement which provide for the calculation of Residual Receipts on a cash basis. All such books, records, and accounts shall be open to and available for inspection by the City, its auditors or other authorized representatives at reasonable intervals during normal business hours on reasonable prior notice to the Developer. Copies of all tax returns and other reports that the Developer may be required to furnish any governmental agency shall at all reasonable times be open for inspection by the City at the place that the books, records and accounts of the Developer are kept. The Developer shall preserve records on which any statement of Residual Receipts is based for a period of not less than five (5) years after such statement is rendered.
Section 5.9 Non-Recourse. Following recordation of the Deed of Trust, and except as provided below, the Developer shall not have any direct or indirect personal liability for payment of the principal of, or interest on, the City Loan or the performance of the covenants of the Developer under the Deed of Trust. The sole recourse of the City with respect to the principal of, or interest on, the Promissory Note and defaults by the Developer in the performance of its covenants under the Deed of Trust shall be to the property described in the Deed of Trust; provided, however, that nothing contained in the foregoing limitation of liability shall: (a) limit or impair the enforcement against all such security for the Promissory Note of all the rights and remedies of the City thereunder; or (b) be deemed in any way to impair the right of the City to assert the unpaid principal amount of the Promissory Note as demand for money within the meaning and intendment of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto.
The foregoing limitation of liability is intended to apply only to the obligation for the repayment of the principal of, and payment of interest on the Note, except as hereafter set forth; nothing contained herein is intended to relieve the Developer of personal liability for (1) fraud or willful misrepresentation; (2) the failure to pay taxes, assessments or other charges (which are not contested by Developer in good faith) which may create liens on the Property that are payable or applicable prior to any foreclosure under the Deed of Trust (to the full extent of such taxes, assessments or other charges); (3) the Developer's indemnification obligations under this Agreement; (4) misappropriation of any rents, security deposits, insurance proceeds, condemnation awards or any other proceeds derived from the collateral security and (5) payment to the City of any rental income or other income arising with respect to the Property received by the Developer after the City has given notice to the Developer of the occurrence of an Event of 97 25
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Default, subject to the rights of any lender providing a loan secured by the Property to which the City has subordinated the Deed of Trust.
ARTICLE 6.
ONGOING DEVELOPER OBLIGATIONS
Section 6.1 Applicability. The conditions and obligations set forth in this Article 6 apply throughout the term of the Regulatory Agreement, unless a different period of applicability is specified for a particular condition or obligation.
Section 6.2 Use of Development. The Developer hereby agrees that, for the entire Term, the Development will be used and continuously operated as affordable housing consistent with the Regulatory Agreement and the TCAC regulatory agreement, and any other regulatory agreement in accordance with all applicable requirements of the California Community Redevelopment Law (the "Law"), including, but not limited to, the requirement that such housing be provided to households described in Section 50079.5 of the Law, at rents not exceeding the amounts set forth in Section 50053(b)(3). In the event of any conflict between the terms of this Agreement, the City Regulatory Agreement, the County Loan Documents and the TCAC Regulatory Agreement, the Developer shall comply with the stricter requirement. In addition, the Developer shall comply all other applicable laws, statutes, and regulations governing the Development, including, but not limited to the applicable requirements of Code Section 42, and all TCAC regulations, for such time that the Development is subject to such regulations.
Section 6.3 Affordability. The Developer agrees that in any application for Tax Credits or County funding, the proposed affordability of the Development will reflect the affordability levels in the Developer's Pro Forma and the Development will be used only for residential use consistent with the Regulatory Agreement, unless the City has approved a modification to the affordability levels to be offered within the Development.
Section 6.4 Waiver of Rights of Protest. If the City proposes to establish an assessment district or community facilities district for street or downtown beautification or for flood control purposes, Developer agrees to waive all rights to: (a) protest any assessment district as otherwise allowed under Government Code Section 53753; or (b) protest a community facilities district as otherwise allowed by Government Code Section 53323.
Section 6.5 Maintenance.
(a) The Developer agrees to maintain all interior and exterior portions of the Development, including landscaping, of the Development in first-class condition and repair and in a sanitary condition (and, as to landscaping, in a healthy condition, subject to any restrictions on water use) and all applicable laws, rules, ordinances, orders, and regulations of all federal, state, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials. (b) The Developer acknowledges the great emphasis the City places on quality maintenance to protect its investment and to provide quality affordable and market-rate housing for area residents. In addition, the Developer must keep the Development free from all 98 26
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graffiti, and any accumulation of shopping carts, debris or waste material. The Developer must promptly make all repairs and replacements necessary to keep the Development in first-class condition and repair and promptly eliminate all graffiti and replace dead and diseased plants and landscaping with comparable approved materials.
(c) In the event that the Developer breaches any of the covenants contained in this Section and such default continues for a period of ten (10) days after written notice from the City with respect to graffiti, debris, waste material, and general maintenance or thirty (30) days after written notice from the City with respect to landscaping and building maintenance, then the City, in addition to whatever other remedy it may have at law or in equity, will have the right to enter upon the Property and perform or cause to be performed all such acts and work necessary to cure the default. Under such right of entry, the City will be permitted (but is not required) to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the Development and landscaped areas on the Property, and to attach a lien on the Property, or to assess the Property, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the City and/or costs of such cure, including a ten percent (10%) administrative charge, which amount must be promptly paid by the Developer to the City upon demand.
Section 6.6 Taxes and Assessments. The Developer must pay all real and personal property taxes, assessments and charges and all franchise, income, employment, social security benefit, withholding, sales, and other taxes assessed against it, or payable by it, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property; provided, however, that the Developer has the right to contest in good faith, any such taxes, assessments, or charges. In the event the Developer exercises its right to contest any tax, assessment, or charge against it, the Developer, on final determination of the proceeding or contest, must immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest.
Section 6.7 Mandatory Language in All Subsequent Deeds, Leases and Contracts. (a) Basic Requirement. The Developer may not restrict the rental, sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Development on any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code. Developer or any person claiming under or through the Developer may not establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the Development. The foregoing covenant runs with the land.
(b) Provisions in Conveyance Documents. All deeds, leases or contracts made or entered into by Developer, and its successor and assigns permitted under this Agreement, as to any portion of the Property must contain therein the following language:
(1) In Deeds:
"(1) Grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in 99 27
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subdivision (a) and (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property herein conveyed, nor shall the grantee or any person claiming under or through the grantee, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein conveyed. The foregoing covenant shall run with the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(2) In Leases:
"(1) Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) and (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government Code in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee or any person claiming under or through the lessee, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased. (2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
(3) In Contracts:
"(1) There shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) and (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government Code in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the transferee or any person claiming under or through the transferee establish or permit any such practice or practices of discrimination or segregation with reference 100
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to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1)."
Section 6.8 Hazardous Materials.
(a) Certain Covenants and Agreements. The Developer hereby covenants and agrees throughout the Term of this Agreement:
(1) The Developer will keep and maintain the Property and the Development located thereon, in compliance with all Hazardous Materials Laws, and may not cause or permit the Development or any portion thereof to be a Property for the release, use, generation, treatment, manufacture, storage, discharge, disposal or transportation of Hazardous Materials or otherwise permit the presence of Hazardous Materials in, on or under the Development;
(2) The Developer must keep and maintain the Development and each portion thereof in compliance with, and may not cause or permit the Development or any portion thereof to be in violation of, any Hazardous Materials Laws; (3) Upon receiving actual knowledge of the same the Developer must immediately advise the City in writing of: (a) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Developer or the Development under any applicable Hazardous Materials Laws; (b) any and all claims made or threatened by any third party against the Developer or the Development relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in the foregoing clause (a) and this clause (b) are hereinafter referred to as "Hazardous Materials Claims"); (c) the presence of any Hazardous Materials in, on or under the Development; or (d) the Developer's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Development that could cause the Property or any part of the Property to be subject to any restrictions on the ownership, occupancy, transferability, or use of the Development or the Property under any Hazardous Materials Laws, including without limitation under the provisions of California Health and Safety Code, Sections 25220 et seq., or any regulation adopted to implement those sections. The City has the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorney's fees in connection therewith paid by the Developer.
(4) Without the City's prior written consent, which will not be unreasonably withheld, the Developer must not take any remedial action in response to the presence of any Hazardous Materials on, under, or about the Development (other than in 101
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emergency situations or as required by governmental agencies having jurisdiction), nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Materials Claims.
(b) Indemnity. Without limiting the generality of the indemnification set forth in Section 10.7 below, in consideration for the transfer of the Property by the City and from and after the conveyance of the Property by the City to the Developer, the Developer hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to the City) the City, and its City Council members, officers, directors, representatives, consultants, employees and agents (together the "Indemnified Parties") from and against any and all claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of any kind, and all costs and expenses incurred in connection therewith (including, but not limited to, reasonable attorney's fees and expenses), arising directly or indirectly, in whole or in part, out of: (1) the failure of the Developer to comply with any Hazardous Materials Law relating in any way whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation or disposal of Hazardous Materials into, on, under or from the Development; (2) during Developer's ownership of the Property, the presence in, on or under the Development of any Hazardous Materials or any releases or discharges of any Hazardous Materials into, on, under or from the Development; or (3) during Developer's ownership of the Property, any activity carried on or undertaken on or off the Property whether by the Developer or any employees, agents, contractors or subcontractors of the Developer or any third persons at any time occupying or present on the Property, in connection with the handling, treatment, removal, storage, decontamination, cleanup, transport or disposal of any Hazardous Materials at any time located or present on or under the Development. The foregoing indemnity applies to any residual contamination on or under the Development, or affecting any natural resources, and to any contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Materials, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws. The forgoing indemnity does not apply to any claims, losses, damages, liabilities, fines, penalties, or charges that are caused by the gross negligence or willful misconduct of the City, or (2) any claims, losses, damages, liabilities, fines, penalties, or charges that are first caused after foreclosure and transfer of property under the Deed of Trust or deed in lieu thereof. The provisions of this subsection (b) will survive the expiration of the Term or other termination of this Agreement and the termination of any applicable City Documents. (c) No Limitation. The Developer hereby acknowledges and agrees that the Developer's duties, obligations and liabilities under this Agreement, including, without limitation, under subsection (b) above, are in no way limited or otherwise affected by any information the City may have concerning the Development and/or the presence within the Development of any Hazardous Materials, whether the City obtained such information from the Developer or from its own investigations.
Section 6.9 Management Agent. The Development shall at all times be managed by an experienced Management Agent reasonably acceptable to the City, with demonstrated ability to operate residential facilities like the Development in a manner that will provide decent, safe, and sanitary housing. For any change in the Management Agent, the Developer shall submit for the City's approval the identity of any proposed Management Agent,. The Developer shall also 102
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submit such additional information about the background, experience and financial condition of any proposed Management Agent as is reasonably necessary for the City to determine whether the proposed Management Agent meets the standard for a qualified Management Agent set forth above. If the proposed Management Agent meets the standard for a qualified Management Agent set forth above, the City shall approve the proposed Management Agent by notifying the Developer in writing within thirty (30) days of such submission, or as soon as reasonably practicable thereafter.
Section 6.10 Insurance Requirements.
(a) Required Coverage. The Developer must maintain and keep in force, at the Developer's sole cost and expense, the following insurance applicable to the Development:
(1) Workers' Compensation insurance, as required by the State of California and consistent with statutory limits, and Employers' Liability coverage, with limits not less than One Million Dollars ($1,000,000) each accident for bodily injury or disease. (2) Commercial General Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence and Two Million Dollars ($2,000,000) aggregate combined single limit for Bodily Injury and Property Damage, including coverages for Contractual Liability, Personal Injury, Broadform Property Damage, Products and Completed Operations. Products and Completed Operations coverage must be obtained no later than completion of construction of the Development.
(3) Commercial Automobile Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for owned, non-owned and hired vehicles, as applicable; provided, however, that if the Developer does not own or lease vehicles for purposes of this Agreement, then no automobile insurance will be required and both Parties to this Agreement must initial this provision signifying same.
(4) Professional liability insurance related to Hazardous Materials and Hazardous Materials Laws in an amount not less than One Million Dollars ($1,000,000) each occurrence and Two Million Dollars ($2,000,000) aggregate policy limit. (5) Builders' risk insurance during the course of construction (and upon completion of construction, property insurance) covering the Development and covering all risks of loss, excluding earthquake and including flood (if required), for one hundred percent (100%) of the replacement value, with deductible, if any, acceptable to the first lender. (b) Subcontractor's Insurance. Developer must require and verify that all subcontractors and agents working on the Development maintain insurance meeting all the requirements stated in this Section 6.11, and Developer must ensure that City is an additional insured on insurance required from subcontractors as described in subsection (c)(2) of this Section.
(c) General Requirements.
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(1) The required insurance must be provided under an occurrence form, and the Developer must maintain such coverage continuously throughout the Term.
Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit must be three (3) times the occurrence limits specified above.
(2) Commercial General Liability, Commercial Automobile Liability and Property insurance policies (including builders' risk) must be endorsed to name as additional insureds the City and its elected officials, officers, directors, representatives, consultants, employees, and agents. The endorsement must include liability arising out of work or operations performed by or on behalf of Developer including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired or borrowed by or on behalf of Developer. For commercial general liability, the policy must be endorsed with a form at least as broad as ISO form CG 20 10, GC 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used.
(3) Developer's insurance must be primary to any other insurance (including self-insurance) available to the City (including its elected officials, officers, directors, representatives, consultants, employees, and agents) with respect to any claim arising out of this Agreement. Any insurance maintained by the City shall be excess of the Developer's insurance and shall not contribute with it.
(4) No policy shall be canceled, limited, or allowed to expire without renewal until after thirty (30) days written notice has been given to the City by first class mail. (5) Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the Entity. Exception may be made for the State Compensation Insurance Fund when not specifically rated. (d) Deductibles. Any deductibles or self-insured retentions must be declared to and approved by City. At the option of City, either:
(1) Developer must reduce or eliminate such deductibles or selfinsured retentions as respects the City and its elected officials, officers, directors, representatives, consultants, employees, and agents; or,
(2) Developer must provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
(e) Subrogation Waiver. Developer hereby grants to City a waiver of any right to subrogation which any insurer of Developer may acquire against the City by virtue of the payment of any loss under such insurance. Developer agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation. The Workers' Compensation policy must be endorsed with a waiver of subrogation in favor of City for all work performed by Developer, its employees, agents, and subcontractors. This provision applies regardless of whether or not the City has requested or received a waiver of subrogation endorsement from the insurer. 104
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(f) Claims Made Policies. If any required coverage is made on a claims-made form:
(1) The "Retro Date" must be shown and must be before the date of the contract or the beginning of contract work.
(2) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. (3) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the contract effective date, Developer must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work.
(4) A copy of the claims reporting requirements must be submitted to City for review.
(5) If the services involve lead-based paint or asbestos identification/remediation, Developer's Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, Developer's Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.
(g) Certificates of Insurance. During the Term, the Developer must provide certificates of insurance, in form and with insurers reasonably acceptable to the City, evidencing compliance with the requirements of this Section, and must provide complete copies of such insurance policies, including endorsements as required by this Section. However, failure to obtain the required documents before the work beginning shall not waive Developer's obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time. (h) Additional Coverage. Developer may carry, at its own expense, any additional insurance it deems necessary or prudent. If Developer maintains higher levels than the minimums shown above, City requires and shall be entitled to coverage for the higher limits maintained by Developer. Any available insurance proceeds in excess of the specified minimum levels of insurance and coverage shall be available to the City.
Section 6.11 Audits. Upon 2 business days prior written notice, the Developer must make available for examination at reasonable intervals and during normal business hours to the City all books, accounts, reports, files, and other papers or property with respect to all matters covered by this Agreement, and permit the City to audit, examine, and make excerpts or transcripts from such records. The City may make audits of any conditions relating to this Agreement.
Section 6.12 Notice of Litigation. Developer must promptly notify the City in writing of any litigation materially affecting Developer or the Property and of any claims or disputes that involve a material risk of such litigation.
ARTICLE 7.
ASSIGNMENTS AND TRANSFERS
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Section 7.1 Definitions. As used in this Article 7, the term "Transfer" means:
(a) Any total or partial sale, assignment or conveyance, or any trust or power, or any transfer in any other mode or form, of or with respect to this Agreement or of the Development or any part thereof or any interest therein or any contract or agreement to do any of the same;
(b) Any total or partial sale, assignment or conveyance, or any trust or power, or any transfer in any other mode or form, of or with respect to any ownership interest in Developer or any contract or agreement to do any of the same; (c) Any merger, consolidation, sale or lease of all or substantially all of the assets of the Developer; or
(d) The leasing of part or all of the Development, except as a Permitted Transfer.
Section 7.2 Purpose of Restrictions on Transfer.
(a) This Agreement is entered into solely for the purpose of the development and operation of the Development and its subsequent use in accordance with the terms hereof.
The Developer recognizes that the qualifications and identity of Developer are of particular concern to the City, in view of:
(1) The importance of the redevelopment of the Property to the general welfare of the community;
(2) The land acquisition assistance and other public aids that have been made available by law and by the government for the purpose of making such redevelopment possible;
(3) The reliance by the City upon the unique qualifications and ability of the Developer to serve as the catalyst for development of the Property; (4) The fact that a change in ownership or Control of the Developer as lessee of the Property, or of a substantial part thereof, or any other act or transaction involving or resulting in a significant change in ownership or with respect to the identity of the parties in Control of the Developer is for practical purposes a transfer or disposition of the Property; (5) The fact that the Property is not to be acquired or used for speculation, but only for development and operation by the Developer in accordance with this Agreement and the Regulatory Agreement; and
(b) The Developer further recognizes that it is because of such qualifications and identity that the City is entering into this Agreement with the Developer and that Transfers are permitted only as provided in this Agreement.
Section 7.3 Prohibited Transfers. Any Transfer made in contravention of this Section and is void and are deemed to be a Developer Event of Default under this Agreement whether or 106
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not the Developer knew of or participated in such Transfer. Except for permitted Transfers described in Section 7.4, no Transfer shall be permitted in the absence of specific written agreement by the City, and, unless approved by the City in writing, no Transfer or assignment will be deemed to relieve the Developer or any other party from any obligations under this Agreement.
Section 7.4 Permitted Transfers. Notwithstanding the provisions of Section 7.3, the following Transfers are permitted and are hereby approved by the City without further review:
(a) Any Transfer creating a Security Financing Interest permitted pursuant to the approved Financing Plan;
(b) The admission of a tax credit investor limited partner to Developer; (c) Any Transfer directly resulting from the foreclosure of a Security Financing Interest or the granting of a deed in lieu of foreclosure of a Security Financing Interest or as otherwise permitted under Article;
(d) The leasing of residential units within the Development in compliance with the Regulatory Agreement;
(e) The granting of easements or permits to facilitate the Development of the Property;
(f) In the event the general partner of the Developer is removed by the limited partner of the Developer for cause following default under the Developer's partnership agreement, the City hereby approves the transfer of the general partner interest to a 501(c)(3) tax-exempt nonprofit public benefit corporation that is selected by the limited partner and approved in advance and in writing by the City, which approval shall not be unreasonably withheld;
(g) After Close of Escrow, any Transfer creating a Security Financing Interest permitted under the approved Financing Plan;
(h) Any Transfer directly resulting from the foreclosure of a Security Financing Interest or the granting of a deed in lieu of foreclosure of a Security Financing Interest or as otherwise permitted under Article 9.
(i) After Close of Escrow, the granting of easements, licenses, or permits to facilitate the development of the Property.
(j) After Close of Escrow, Transfer of the Property or any partnership interest in Developer to Linc Housing Corporation, Linc Community Development Corporation, or any other entity under common control with the foregoing.
Section 7.5 Effectuation of Certain Permitted Transfers. Other than as permitted in Section 7.4, no Transfer of a direct interest in this Agreement shall be permitted unless, at the time of the Transfer, the person or entity to which such Transfer is made, by an agreement reasonably satisfactory to the City and in form recordable among the land records, expressly 107
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agrees to perform and observe, from and after the date of the Transfer, the obligations, terms and conditions of this Agreement; provided, however, that no such transferee shall be liable for the failure of its predecessor to perform any such obligation. The City shall grant or deny approval of a proposed Transfer within thirty (30) days of receipt by the City of the Developer's request for approval of a Transfer, which request shall include evidence of the proposed transferee's business expertise and financial capacity. Failure by the City to approve or disapprove the proposed Transfer within thirty (30) days after receipt of the Developer's written request shall be deemed to be approval of the proposed Transfer by the City.
Section 7.6 Other Transfers with City Consent.
(a) Any Transfers not permitted under Section 7.4 or Section 7.5 or other provisions of this Agreement shall require the prior written consent by the City. At least sixty (60) days prior to the proposed effective date of the Transfer, the Developer shall deliver to the City evidence that the intended transferee is a Qualified Transferee. (b) The City may withhold, condition or delay its approval of a Transfer if City determines in its sole discretion that: (1) there is a Developer Event of Default; (2) the proposed Transfer will in any material respect diminish the City's rights under this Agreement; or (3) the proposed transferee is not a Qualified Transferee. If the City withholds its approval of a Transfer under this Section, it shall provide a written statement to the Developer specifying the City's grounds for withholding approval within thirty (30) business days following receipt of the Developer's Transfer request, or as soon as reasonably practicable thereafter. (c) No Transfer of this Agreement permitted under this Section will be effective unless, at the time of the Transfer, the Qualified Transferee enters into and records an assignment and assumption agreement in a form reasonably approved by the City.
Section 7.7 Termination of Limitations on Transfers. The limitations on Transfers set forth in this Article 7 shall apply with respect to the Property or the Development until issuance by the City of a Certificate of Completion for the Development.
ARTICLE 8.
DEFAULT AND REMEDIES
Section 8.1 General Applicability. The provisions of this Article 8 govern the Parties' remedies for breach or failure of this Agreement.
Section 8.2 No Fault of Parties.
(a) The following events constitute a basis for a Party to terminate this Agreement without the fault of the other:
(1) The Developer, despite good faith and diligent efforts, is unable to obtain commitments for all financing needed to acquire and develop the Property. (2) The City, despite good faith and diligent efforts, is unable to convey the Property to the Developer, and the Developer is otherwise entitled to such conveyance.
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(3) The Developer, despite good faith and diligent efforts, is unable to obtain the City's approval of the Financing Plan or the Construction Plans, or obtain all discretionary approvals necessary to develop the Development. (b) Upon the happening of the above-described event and at the election of either Party, this Agreement may be terminated by written notice to the other Party. After such termination of this Agreement, neither Party will have any rights against, or liability to, the other under this Agreement, except that the indemnification provisions of this Agreement will survive such termination and remain in full force and effect.
Section 8.3 Fault of City. Each of the following events, if uncured after expiration of the applicable cure period, constitutes a "City Event of Default":
(a) The City, without good cause, fails to convey the Property to the Developer in the manner set forth in Article 3 and the Developer is otherwise entitled by this Agreement to such conveyance; or
(b) The City breaches any other material provision of this Agreement which is materially adverse to Developer.
Section 8.4 Fault of Developer. Each of the following events, if uncured after expiration of the applicable cure period, constitutes a "Developer Event of Default":
(a) The Developer fails to exercise good faith and diligent efforts to satisfy, within the time and in the manner set forth in Article 3, one or more of the conditions precedent to the City's obligation to convey the Property to the Developer; (b) The Developer refuses to accept conveyance from the City of the Property within the time periods and under the terms set forth in Article 3; (c) The Developer constructs or attempts to construct the Development in violation of Article 4;
(d) The Developer has not satisfied all preconditions set forth in this Agreement to enable it to commence construction of the Development by the date set forth in the Schedule of Performance, or fails to commence or complete construction of the Development by the date set forth in the Schedule of Performance (as such dates may be extended with the prior written consent of the City Manager), or abandons or suspends construction of the Development prior to completion of all construction for a period of sixty (60) days after written notice by the City of such abandonment or suspension;
(e) The Developer fails to comply with any obligation or requirement set forth in Article 4 or Article 6, including, but not limited to, the Developer's failure to construct the Development, or the Developer's failure to rent the Affordable Units in accordance with this Agreement. Any default by the Developer under the Regulatory Agreement shall also be a Developer Event of Default under this Agreement;
(f) A Transfer occurs, either voluntarily or involuntarily, in violation of Article 7;
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(g) Any representation or warranty contained in this Agreement or in any application, financial statement, certificate, or report submitted to the City in connection with this Agreement proves to have been incorrect in any material and adverse respect when made; (h) A court having jurisdiction makes or enters any decree or order: (1) adjudging the Developer to be bankrupt or insolvent; (2) approving as properly filed a petition seeking reorganization of the Developer, or seeking any arrangement for the Developer, under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction; (3) appointing a receiver, trustee, liquidator, or assignee of the Developer, in bankruptcy or insolvency or for any of their properties; or (4) directing the winding up or liquidation of the Developer, if any such decree or order described in clauses (1) to (4), inclusive, continued unstayed or undischarged for a period of ninety (90) days unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection (i) as well; or the Developer, admits in writing its inability to pay its debts as they fall due or voluntarily submits to or files a petition seeking any decree or order of the nature described in clauses (1) to (4), inclusive; (i) The Developer assigns its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure under any other mortgage on the Property, in which event such lesser time period will apply under this subsection as well) or prior to sooner sale under such sequestration, attachment, or execution; (j) The Developer voluntarily suspends its business or, the Developer is dissolved or terminated;
(k) There occurs any default declared by any entity under any loan document related to any loans secured by a deed of trust on the Development or any regulatory agreement recorded against the Property, after the expiration of applicable cure periods; or (l) The Developer breaches any monetary provision of this Agreement or any monetary provision in any of the other City Documents, and the Developer fails to cure the same within 10 days of written notice thereof.
(m) The Developer breaches any other material non-monetary provision of this Agreement or any material non-monetary provision in any of the other City Documents, and the Developer fails to cure the same within 30 days of written notice thereof, provided that if such cure cannot be reasonably completed in 30 days, then such longer period approved by the City as reasonably necessary to cure the breach provided that the Developer commences the cure within 30 days and diligently, continually, and in good faith works to effect a cure as soon as possible.
Section 8.5 Notice and Cure Period Regarding Defaults.
(a) Before initiating any action for relief specified in Section 8.6 for an alleged breach of this Agreement, the Party claiming breach (the "Complaining Party") must deliver to the other Party (the "Defaulting Party") a written notice of breach (the "Notice of Default"). The Notice of Default must specify the reasons for the allegation of default with 110
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reasonable particularity. Within thirty (30) days the Defaulting Party must either: (1) use good faith efforts to cure the breach or, if such cure is of the nature to take longer than 30 days, to follow the procedures specified in subsection (b) below; or (2) if in the determination of the Defaulting Party, the event does not constitute a breach of this Agreement, the Defaulting Party, within thirty (30) days of receipt of the Notice of Default, must deliver to the Complaining Party a notice which sets forth with reasonable particularity the reasons that a default has not occurred.
Failure to respond within the thirty (30) day period may not be deemed an admission of the default, but the Complaining Party may proceed to pursue its remedies under this Article 8.
After conclusion of the thirty (30) day period, the Complaining Party may declare a City or Developer Event of Default by providing written notice to the Defaulting Party (the "Declaration of Default"), subject to the provisions of subsection (b) below and may proceed to pursue its remedies under this Article 8. Following the admission of Developer’s investor limited partner, any notice provided to the Developer under the City Documents as a Defaulting Party shall also be provided to such investor limited partner at the address provided by the limited partner to the City in writing, and any such cure offered by Developer’s investor limited partner shall be deemed a cure by Developer.
(b) If the Defaulting Party believes that the Default cannot practically be cured within the thirty (30)-day period, the Defaulting Party is not in Default provided that: (1) the cure is commenced during the thirty (30) day period after receipt of the Notice of Default; (2) within the thirty (30) day period, the Defaulting Party provides a schedule to the Complaining Party for cure of the Default, subject to the reasonable approval of the Complaining Party; and (3) the cure is completed in accordance with the schedule agreed to by the Parties, or such additional time as agreed by the Complaining Party. If the Parties cannot mutually agree on a schedule for cure of the Default, at the conclusion of one hundred twenty (120) days after issuance of the Notice of Default, the Complaining Party may issue a Declaration of Default and proceed to pursue its remedies under this Article 8.
(c) Notwithstanding the notice and cure periods set forth in this Section, with respect to a Developer Event of Default described in subsections 8.4(d), (g), and (i) through (m) above, the indebtedness evidenced by the City Note shall be automatically accelerated and City shall be entitled to take its remedies, without the need for action by the City, the provision of any notice, or the passage of any cure period.
Section 8.6 Remedies.
(a) Limitation on Damages. City and Developer acknowledge that the purpose of this Agreement is to carry out the Parties' objectives as set forth in the recitals. City and Developer further agree that, in the event of a Default or breach under this Agreement, following the expiration of the notice and cure periods described in Section 8.5, the only remedies available to the non-breaching Party shall be those listed in this Section 8.6. (b) Developer Remedies. With respect to an uncured City Event of Default, the Developer shall be entitled to the following remedies only: (1) terminate this Agreement with respect to the Property, but only before Close of Escrow; or (2) seek specific performance of this Agreement or other equitable remedy against the City
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(c) City Remedies. With respect to an uncured Developer Event of Default, the City shall be entitled to take any or all of the following remedies:
(1) Terminating this Agreement by giving written notice to the Developer. If the City elects to terminate this Agreement, the provisions of this Agreement that are specified to survive such termination shall remain in full force and effect. (2) Prosecuting an action for damages (excluding specific performance, punitive damages and consequential damages); or seeking any other remedy available at law or in equity (excluding punitive damages and consequential damages).
Section 8.7 Right to Cure at Developer's Expense. The City has the right to cure any monetary default by the Developer under a loan made in connection with the Development. The Developer agrees to reimburse the City for any funds advanced by the City to cure a monetary default by Developer upon demand therefor, together with interest at the lesser of the rate of ten percent (10%) per annum or the maximum rate permitted by law from the date of expenditure until the date of reimbursement.
Section 8.8 Project Documents. If the Agreement is terminated under Sections 8.2 or
8.6, the Developer, at no cost to the City, must deliver to the City copies of any project documents, Construction Plans, and studies in the Developer's possession or to which Developer is entitled related to construction of the Development on the Property and shall obtain appropriate permission for City to utilize the documents.
Section 8.9 Rights of Mortgagees. Any rights of the City under this Article 8 will not defeat, limit or render invalid any Security Financing Interest permitted by this Agreement or any rights provided for in this Agreement for the protection of holders of Security Financing Interests. Any conveyance or reverter of the Property to the City under this Article 8 will be subject to Security Financing Interests permitted by this Agreement.
Section 8.10 Remedies Cumulative. No right, power, or remedy given to the City by the terms of this Agreement is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy will be cumulative and in addition to every other right, power, or remedy given by the terms of any such instrument, or by any statute or otherwise. Neither the failure nor any delay to exercise any such rights and remedies will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy.
ARTICLE 9.
SECURITY FINANCING AND RIGHTS OF HOLDERS
Section 9.1 No Encumbrances Except for Development Purposes. Notwithstanding any other provision of this Agreement, mortgages and deeds of trust, or any other reasonable method of security are permitted to be placed upon the Developer's fee interest in the Property, but only for the purpose of securing loans approved by the City under the approved Financing Plan. Mortgages, deeds of trust, or other reasonable security instruments securing loans approved by the City under the approved Financing Plan are each referred to as a "Security Financing Interest." The words "mortgage" and "deed of trust" as used in this Agreement 112
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include all other appropriate modes of financing real estate acquisition, construction, and land development.
Section 9.2 Holder Not Obligated to Construct. The holder of any Security Financing Interest authorized by this Agreement is not obligated to construct or complete any Development or to guarantee such construction or completion; nor will any covenant or any other provision in conveyances from the City to the Developer evidencing the realty comprising the Property or any part thereof be construed so to obligate such holder. However, nothing in this Agreement is deemed to permit or authorize any such holder to devote the Property or any portion thereof to any uses, or to construct any Development thereon, other than those uses of Development provided for or authorized by this Agreement and the Regulatory Agreement.
Section 9.3 Notice of Default and Right to Cure. Whenever the City under its rights set forth in Article 8 of this Agreement delivers any notice or demand to the Developer with respect to the commencement, completion, or cessation of the construction of the Development, the City will at the same time deliver to each holder of record of any Security Financing Interest creating a lien upon the Developer's fee interest in the Property or any portion thereof, and the Investor, a copy of such notice or demand. Each such holder (insofar as the rights of the City are concerned) has the right, but not the obligation, at its option, within ninety (90) days after the receipt of the notice, to cure or remedy or commence to cure or remedy any such default or breach affecting the Property which is subject to the lien of the Security Financing Interest held by such holder and to add the cost thereof to the security interest debt and the lien on its security interest. Nothing contained in this Agreement is deemed to permit or authorize such holder to undertake or continue the construction or completion of the Development (beyond the extent necessary to conserve or protect such Development or construction already made) without first having expressly assumed in writing the Developer's obligations to the City relating to such Development under this Agreement under an assignment and assumption agreement prepared by the City and recordable among the Official Records (the "Security Financing Interest Assignment"). The holder in that event must agree to complete, in the manner provided in this Agreement (or as may be amended by the Security Financing Interest Assignment; provided, however, the City is under no obligation to extend the dates for performance set forth in this Agreement), the Development to which the lien or title of such holder relates. Any such holder properly completing such Development under this paragraph must assume all rights and obligations of Developer under this Agreement and will be entitled, upon completion and written request made to the City, to a Certificate of Completion from the City.
Section 9.4 Failure of Holder to Complete Development. In any case where six (6) months after default by the Developer in completion of construction of the Development under this Agreement, the holder of record of any Security Financing Interest, having first exercised its option to construct under the Security Financing Interest Assignment, has not proceeded diligently with construction (as reasonably determined by the City), the City must be afforded those rights against such holder it would otherwise have against Developer under this Agreement.
Section 9.5 Right of City to Cure. In the event of a default or breach by the Developer of a Security Financing Interest prior to the completion of the Development, and the holder has not exercised its option to complete the Development on the Property, the City may cure the default, prior to the completion of any foreclosure. In such event the City will be entitled to 113
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reimbursement from the Developer of all costs and expenses incurred by the City in curing the default. The City will also be entitled to a lien upon the Property or any portion thereof to the extent of such costs and disbursements. The City agrees that such lien will be subordinate to any Security Financing Interest, and the City will execute from time to time any and all documentation reasonably requested by Developer to effect such subordination.
Section 9.6 Right of City to Satisfy Other Liens. After the conveyance of title to the Property or any portion thereof and after the Developer has had a reasonable time to challenge, cure or satisfy any liens or encumbrances on the Property or any portion thereof, the City will have the right to satisfy any such lien or encumbrances; provided, however, that nothing in this Agreement will require the Developer to pay or make provision for the payment of any tax, assessment, lien or charge so long as the Developer in good faith may contest the validity or amount therein and so long as such delay in payment is not subject the Property or any portion thereof to forfeiture or sale.
Section 9.7 Holder to be Notified. The Developer will insert each term contained in this Article 9 into each Security Financing Interest or will procure acknowledgement of such terms by each prospective holder of a Security Financing Interest prior to its coming into any security right or interest in the Property or portion thereof.
Section 9.8 Estoppel Certificate. Either the Developer or the City, may at any time, and from time to time, deliver written notice to the other Party requesting such Party to certify in writing that, to the knowledge of the certifying Party: (a) this Agreement is in full force and effect and a binding obligation of the Parties; (b) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments; and (c) the requesting Party is not in default in the performance of its obligations under this Agreement, or if in default, the notice shall describe the nature and amount of any such City or Developer Event of Default. A Party receiving a request shall execute and return such certificate within thirty (30) days following receipt of the request. The City Manager is authorized to execute any estoppel certificate requested by the Developer.
ARTICLE 10.
GENERAL PROVISIONS
Section 10.1 Notices, Demands and Communications. Formal notices, demands, and communications between the City and the Developer will be sufficiently given if, and not be deemed given unless, dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by reputable overnight delivery service, or delivered personally, to the principal office of the City and the Developer as follows:
City: City of Belmont
One Twin Pines Lane
Belmont, CA 94002
Attention: City Manager
With a copy to: City of Belmont
One Twin Pines Lane
Belmont, CA 94002
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Attention: City Attorney
Developer: Linc-Hill Street, L.P.
c/o Linc Housing Corporation
3590 Elm Avenue
Long Beach, CA 90807
Attention: President and Chief Operating Officer
With a copy to: Carle Mackie Power & Ross LLP
100 B Street, Suite 400
Santa Rosa, California 95401
Attention: Henry Loh II
With a copy to: [TBD - investor]
With a copy to: [TBD – investor counsel]
Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected Party may from time to time designate by notice as provided in this Section.
Section 10.2 Non-Liability of Officials, Employees and Agents. No City Council members, officers, directors, representatives, consultants, employees and agents of the City may be personally liable to the Developer, or any successor in interest, in the event of any default or breach by the City or for any amount which may become due to the Developer or successor or on any obligation under the terms of this Agreement. Absent fraud or willful misconduct by the responsible party, no members, officers, directors, representatives, consultants, employees and agents of the Developer may be personally liable to the City, or any successor in interest, in the event of any default or breach by the Developer or for any amount which may become due to the City or successor or on any obligation under the terms of this Agreement.
Section 10.3 Forced Delay. In addition to specific provisions of this Agreement and the City Documents and notwithstanding the Schedule of Performance, performance by any Party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority (except for restrictions or priorities established by the Party required to perform the action required under this Agreement); unusually severe weather; inability to secure necessary labor, materials or tools; acts or the failure to act of any public or governmental agency or entity (except that acts or the failure to act of a Party shall not excuse performance by such Party, including without limitation the Developer's inability to obtain financing for the Development or the economic infeasibility of the Development) ("Force Majeure"). An extension of time for Force Majeure shall only be for the period of the enforced delay, which period shall commence to run from the time of the notification of the delay by the Party requesting the extension to the other Party. The Party requesting an extension of time under this Section 10.3 shall give notice promptly following knowledge of the delay to the other Party. If, however, notice by the Party claiming such extension is sent to the other Party more 115
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than thirty (30) days after knowledge of the commencement of the delay, the period shall commence to run upon the earlier of (i) thirty (30) days prior to the giving of such notice or (ii) the date that the other Party received knowledge of the events giving rise to the delay.
Section 10.4 Inspection of Books and Records. Upon 2 business days prior written request, the Developer must permit the City to inspect at reasonable times and on a confidential basis those books, records and all other documents of the Developer necessary to determine Developer’s compliance with the terms of this Agreement.
Section 10.5 Title of Parts and Sections. Any titles of the articles, sections or subsections of this Agreement are inserted for convenience of reference only and should be disregarded in construing or interpreting any part of its provision.
Section 10.6 General Indemnification; Claims by Third Parties. (a) The Developer hereby agrees to indemnify, defend (with counsel reasonably selected by the City) and hold the City, and its City Council members, officers, directors, representatives, consultants, employees and agents (collectively, the “Indemnified Parties”) harmless against any and all claims, suits, actions, losses and liability of every kind, nature and description made against all or any of the Indemnified Parties, and expenses (including reasonable attorneys’ fees) which arise out of or in connection with this Agreement or any of the City Documents, including but not limited to, the leasing of the Property, construction of the Development, and the operation of the Development, except to the extent such claim arises from the grossly negligent or willful misconduct of the City. The provisions of this Section survive both the issuance of a Certificate of Completion by the City and termination of this Agreement.
(b) In the event of any legal action, claim, or proceeding instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, the leasing of the Property, construction of the Development, or the operation of the Development (“Third-Party Challenge”), the responsibilities of the Parties shall be as follows. (1) The Developer shall bear its own costs of defense as a real party in interest in any Third-Party Challenge, and the Developer shall reimburse City for all costs (including court costs and expenses) and attorneys’ fees incurred by City in defense of such action or other proceeding. In its sole discretion, City may tender its defense of such action to Developer or defend the action itself. Upon a tender of defense to Developer by City, Developer shall defend through counsel approved by City, which approval shall not be unreasonably withheld, and Developer shall bear all attorneys’ fees and costs from the date of tender. Under no circumstances shall Developer be required to pay or perform any settlement arising out of a Third-Party Challenge unless the settlement is expressly approved by Developer. (2) The City shall promptly notify the Developer of any Third-Party Challenge and shall cooperate fully in the defense of the Third Party Challenge. (3) If any part of this Agreement is held by a court of competent jurisdiction to be invalid or unlawful as the result of a Third Party Challenge, the Parties shall use their best efforts to cure any inadequacies or deficiencies identified by the court in a manner 116
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consistent with the express and implied intent of this Agreement, and then to adopt or re-enact such part of this Agreement as necessary or desirable to permit implementation of this Agreement.
Section 10.7 No Third-Party Beneficiaries. There are no third party beneficiaries to this Agreement.
Section 10.8 Applicable Law. This Agreement must be interpreted under and under the laws of the State of California. Venue shall be San Mateo County.
Section 10.9 No Brokers. Each Party represents to the other that it has not had any contact or dealings regarding the Property, or any communication in connection with the subject matter of this transaction, through any real estate broker or other person who can claim a right to a commission or finder’s fee. If any broker or finder makes a claim for a commission or finder’s fee based upon a contact, dealings, or communications, the Party through whom the broker or finder makes this claim must indemnify, defend with counsel of the indemnified Party’s choice, and hold the indemnified Party harmless from all expense, loss, damage and claims, including the indemnified Party’s reasonable attorneys’ fees, if necessary, arising out of the broker’s or finder’s claim. The provisions of this Section survive expiration of the Term or other termination of this Agreement and will remain in full force and effect.
Section 10.10 Legal Actions. In the event any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a result of any breach thereof, each Party shall bear their own attorneys’ fees and no attorneys’ fees may be awarded to the Party prevailing in the action.
Section 10.11 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions will continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability.
Section 10.12 Binding Upon Successors. This Agreement is binding upon and inures to the benefit of the heirs, administrators, executors, successors in interest and assigns of each of the Parties hereto, except that there may be no Transfer of any interest by any of the Parties hereto except under the terms of this Agreement. Any reference in this Agreement to a specifically named Party is deemed to apply to any successor, heir, administrator, executor or assignee of such Party who has acquired an interest in compliance with the terms of this Agreement, or under law.
The covenants and restrictions set forth in this Agreement run with the land and will bind all successors in title to the Property. Each and every contract, deed, or other instrument hereafter executed covering or conveying the Property will be held conclusively to have been executed, delivered, and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed, or other instrument, unless the City expressly releases the Property from the requirements of this Agreement.
Section 10.13 Parties Not Co-Venturers. Nothing in this Agreement is intended to or does establish the Parties as partners, co-venturers, or principal and agent with one another. 117
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Section 10.14 Discretion Retained by City. The City’s execution of this Agreement does not constitute approval by the City and in no way limits the discretion of the City in the permit and approval process in connection with construction of the Development.
Section 10.15 Time of the Essence. In all matters under this Agreement, the Parties agree that time is of the essence.
Section 10.16 Representation and Warranties of Developer. The Developer hereby represents and warrants to the City as follows:
(a) Organization. The Developer is a duly organized, validly existing California limited partnership, is in good standing under the laws of the State of California and has the power and authority to own its property and carry on its business as now being conducted.
(b) Authority of Developer. The Developer has full power and authority to execute and deliver this Agreement and to perform and observe the terms and provisions of all of the above.
(c) Authority of Persons Executing Documents. This Agreement and all other documents or instruments executed and delivered, or to be executed and delivered, under this Agreement have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of Developer, and all actions required under the Developer’s organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement and all other documents or instruments executed and delivered, or to be executed and delivered, under this Agreement, have been duly taken. (d) Valid Binding Agreements. This Agreement and all other documents or instruments which have been executed and delivered under or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of the Developer enforceable against it in accordance with their respective terms.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement or of any other documents or instruments executed and delivered, or to be executed or delivered, under this Agreement, nor the performance of any provision, condition, covenant or other term hereof or thereof, will conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any court, City Council, commission or agency whatsoever binding on the Developer, or any provision of the organizational documents of the Developer, or will conflict with or constitute a breach of or a default under any agreement to which the Developer is a party, or will result in the creation or imposition of any lien upon any assets or property of the Developer, other than liens established pursuant hereto. (f) Compliance with Laws; Consents and Approvals. The construction of the Development will comply with all applicable laws, ordinances, rules and regulations of federal, state and local governments and agencies and with all applicable directions, rules and regulations of the fire marshal, health officer, building inspector and other officers of any such government or agency.
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(g) Pending Proceedings. The Developer is not in default under any law or regulation or under any order of any court, City Council, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of the Developer, threatened against or affecting the Developer, at law or in equity, before or by any court, City Council, commission or agency whatsoever which might, if determined adversely to the Developer, materially affect the Developer’s ability to develop the Development. (h) Financial Statements. The financial statements of the Developer, and other financial data and information furnished by, or on behalf of the Developer, to the City fairly present the information contained therein. As of the date of this Agreement, there has not been any adverse, material change in the financial condition of the Developer from that shown by such financial statements and other data and information. (i) Sufficient Funds. Upon the acquisition of the Property, the Developer will hold sufficient funds or binding commitments to complete the construction of the Development in accordance with this Agreement.
Section 10.17 Entry by the City The Developer hereby permits the City, through its officers, agents, consultants or employees, at all reasonable times, to enter into the Development:
(a) to inspect the work of construction to determine that the same is in conformity with the requirements of this Agreement; and (b), following completion of construction and upon 2 business days prior written notice, to inspect the ongoing operation and management of the Development to determine that the same is in conformance with the requirements of this Agreement. The Developer acknowledges that the City is under no obligation to supervise, inspect, or inform the Developer of the progress of construction, or operations and the Developer may not rely upon the City therefor. Any inspection by the City during the construction is entirely for its purposes in determining whether the Developer is in compliance with this Agreement and is not for the purpose of determining or informing the Developer of the quality or suitability of construction. The Developer must rely entirely upon its own supervision and inspection in determining the quality and suitability of the materials and work, and the performance of architects, subcontractors, and material suppliers.
Section 10.18 Entire Understanding of the Parties. This Agreement constitutes the entire understanding and agreement of the Parties. All prior discussions, understandings and written agreements are superseded by this Agreement. The Developer and the Developer's counsel have read and reviewed this Agreement and agree that any rule of construction (including, but not limited to Civil Code Section 1654, as may be amended from time to time) to the effect that ambiguities are to be resolved against the drafting party will not apply to the interpretation of this Agreement.
Section 10.19 Amendments. The Parties can amend this Agreement only by means of a writing executed by the Developer and the City.
Section 10.20 City Approval. Whenever this Agreement permits City approval, consent, or waiver, to be authorized by the City Manager, the City Manager's signature shall constitute the approval, consent, or waiver of the City, without further authorization required from the City Council unless required by law or the terms of this Agreement. 119
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Section 10.21 Counterparts; Multiple Originals. This Agreement may be executed in counterparts, each of which is deemed to be an original.
Section 10.22 Termination. This Agreement shall automatically terminate upon the occurrence of both of the following events: (a) the full repayment of the City Loan and the Deed of Trust has been reconveyed, and (b) the expiration of the Regulatory Agreement pursuant to its terms. Upon such termination, at the written request of either party hereto, the Parties shall execute a termination of this Agreement, which may be in recordable form. Notwithstanding the foregoing, the provisions of this Agreement that are specified to survive such termination shall remain in full force and effect.
SIGNATURES ON THE FOLLOWING PAGE
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The City and the Developer are signing this Agreement as of the Effective Date.
CITY:
CITY OF BELMONT,
a municipal corporation
By: __________________________,
Afshin Oskoui, City Manager
Dated: __________________________
ATTEST:
By: __________________________
Jozi Plut, City Clerk
Dated: __________________________
APPROVED AS TO FORM:
By: __________________________
Scott Rennie, City Attorney
Dated: __________________________
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DEVELOPER:
Linc-Hill Street, L.P.,
a California limited partnership
By: Linc-Hill Street LLC,
a California limited liability company,
its general partner
By: Linc Housing Corporation,
a California nonprofit public benefit corporation,
its sole member and manager
By:
Anders Plett
Senior Vice President of Housing Development
Dated: ______________________
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A-1
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The land referred to is situated in the City of San Mateo, State of California, and is described as follows:
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A-2
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B-1
EXHIBIT B
SCHEDULE OF PERFORMANCE
Action/Obligation Section
Reference Timeline for Performance
City has approved all required discretionary
entitlement approvals for the Development (the
"City Approvals").
2.2 Prior to or concurrent with
Effective Date.
Developer shall submit a final Financing Plan to
the City.
2.3(a) Prior to Close of Escrow.
City shall review Financing Plan and approve or
disapprove.
2.3(b) Within 15 working days after
submission.
Developer shall submit an application for either a
4% or a 9% tax credit allocation (with up to 3
rounds of subsequent applications if unsuccessful);
Staff can approve an additional two years if
deemed appropriate.
Developer shall submit first
tax credit application no later
than April 25, 2023
Developer shall obtain, with the reasonable
cooperation of the City, all approvals from the City
required for the issuance of a building permit (the
“Building Permit”).
2.4(a) Within two (2) years of the
Effective Date, and prior to the
close of escrow.
Developer shall submit to City its final construction
contract for the Development.
2.5 Prior to Close of Escrow.
Developer shall obtain labor and material and
performance bond for construction of the
Development.
2.6 Prior to Close of Escrow.
Tax Credit Funds and all other financing to
construct the Development shall be closed by
Developer.
2.10 Prior to, or simultaneously
with, Close of Escrow.
Developer shall commence construction of the
Development.
4.3 Within 30 days from the Close
of Escrow.
Developer shall diligently prosecute to completion
the construction of the Development.
4.4 Within 30 months from Close
of Escrow.
Developer shall submit the name and information
of the property Management Agent to the City for
review and approval.
6.9 Prior to final inspection.
City shall furnish the Development’s Certificate of
Completion.
4.13 Within 10 days of the
Development’s final
inspection.
The City Manager may grant an extension to the Performance Schedule. 125
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C-1
EXHIBIT C
PRO FORMA
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EXHIBIT D
SCOPE OF DEVELOPMENT
Developer proposes to develop a high quality, sustainable, mixed-use transit oriented residential community, consisting of the following components:
The architectural drawings prepared by Torti Gallas + Partners, dated June 28, 2022 and October 7, 2022, and the civil drawings prepared by BKF Engineers, dated August 31, 2022, both of which were submitted to the City of Belmont electronically on November 11, 2022. 127
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EXHIBIT E
FORM OF GRANT DEED
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EXHIBIT F
FORM OF MEMORANDUM OF DDA
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EXHIBIT G
FORM OF REGULATORY AGREEMENT
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EXHIBIT H
FORM OF NOTICE OF AFFORDABILITY RESTRICTIONS
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EXHIBIT I
FORM OF PROMISSORY NOTE
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M-1
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EXHIBIT J
FORM OF DEED OF TRUST
133