WHEREAS, the First Final Map for the Saggio Hills Development Project subdivided the land comprising Saggio Hills into eleven (11) parcels, two parcels of which are legally described as Parcels 5 and 6 of Saggio Hills per Map recorded May 23, 2018 in Book 795, Pages 31-40 as Instrument No. 2018-037508, of Official Records, in the City of Healdsburg, County of Sonoma, State of California, APNs 091-310-005 & 091-310-006, as amended by the Parcel 5, 6 and 11 Lot Line Adjustment, approved by the City on May 12, 2022, pursuant to LLA 2021-05, which are collectively known as the "Affordable Housing Land"; and WHEREAS, pursuant to the Development Agreement, SLR has completed its obligations to perform mass grading of the Affordable Housing Land, to implement wetlands mitigation for the removal of wetlands on the Affordable Housing Land, to construct the Parkland Farms Boulevard roadway and utility improvements adjoining the Affordable Housing Land and to convey the Affordable Housing Land to the City; and
WHEREAS, pursuant to the Development Agreement, the City is responsible for making arrangements for the development and construction of up to 150 units of affordable housing on the Affordable Housing Land; and
WHEREAS, on February 16, 2021, the City entered into an Exclusive Negotiating Rights Agreement ("ENA") with Freebird Development Company, LLC ("Developer") which establishes procedures and standards for the negotiation of a Disposition and Development Agreement ("DDA"); and that, during the Negotiation Period, the Developer will conduct community outreach, complete schematic design, and secure entitlements and any required environmental review. In accordance with Section 2 of the ENA, the term of the Negotiating Period was extended to August 16, 2023, as evidenced by the First Amendment to Exclusive Negotiating Rights Agreement dated January 31, 2023; and
WHEREAS, on March 8, 2022, at a properly noticed public workshop, the Healdsburg Planning Commission reviewed the Tentative Map and conceptual plans for the Saggio Hills Affordable Housing Project (“Project”), and provided feedback to the Developer regarding the plans for the Project; and
WHEREAS, the Project includes modifications from the project analyzed in the Saggio Hills Project EIR, and pursuant to CEQA Guidelines section 15164, the City caused the preparation of an Environmental Checklist & Addendum to the Saggio Hills Project EIR, dated September, 2022 ("Addendum"), which can be found in the Planning Department's files for the Project at Healdsburg City Hall, Community Development Center, 401 Grove Street, Healdsburg, CA; and
WHEREAS, on November 8, 2022, at a properly noticed public hearing, following consideration of the Saggio Hills Project EIR and Addendum, the Planning Commission approved Major Design Review DR 2022-05, approved the requested concessions under State Density Bonus Law, and recommended that the City Council approve Tentative Map TM 2022-02; and
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WHEREAS, City and Developer have negotiated a development agreement for the Saggio Hills Affordable Housing Project ("Saggio Hills Affordable Housing Project DA") in order to extend the terms of Project approvals to facilitate the timely construction of the Project; and WHEREAS, Sections 65864 through 65869.5 of the California Government Code and Chapter 17.20 of the Healdsburg Municipal Code (“Development Agreement Law”) authorize the City to establish procedures to enter into binding development agreements with persons having legal or equitable interests in real property located within the City for the development of property; and
WHEREAS, the City of Healdsburg has established and codified such procedures as Chapter 17.20 of the Healdsburg Municipal Code; and
WHEREAS, on February 28, 2023, at a properly noticed public hearing, the Planning Commission reviewed written and oral staff reports, conducted a public hearing on the proposed Saggio Hills Affordable Housing Project DA and took testimony; received into the record all pertinent documents related to the Saggio Hills Affordable Housing Project DA, and following consideration of the Saggio Hills Project EIR and Addendum, by adoption of Resolution 2023-03, the Planning Commission recommended that the City Council approve the Saggio Hills Affordable Housing Project DA with a further recommendation that Section 4.8 "Timing of Development" be deleted; and
WHEREAS, on April 3, 2023, the Healdsburg City Council held a duly noticed public hearing on the Development Agreement DA 2023-01, reviewed the written and verbal staff reports, took testimony, and received into the record all pertinent documents related to the Project.
NOW, THEREFORE BE IT ORDAINED that the Healdsburg City Council hereby approves the Development Agreement as presented in Exhibit 1 to this ordinance and based upon the facts and findings as set forth below:
Section 1. Findings.
1. The Saggio Hills Affordable Housing Project DA is consistent with the Healdsburg 2030 General Plan, the Saggio Hills Area Plan, and the Land Use Code. The Saggio Affordable Housing Project is consistent with the Medium High Density Residential (MHR) land use classification in the General Plan and the Special Purposes of the R-1-3,500 zoning district.
The Project implements Housing Element policies calling for affordable housing and housing which meets special housing needs, including those for residents with developmental disabilities. It complies with policies addressing energy-efficiency performance, multi-modal transportation needs, and development within the wildland urban interface. The Project is consistent with the design guidelines established in the Saggio Hills Area Plan. The Project's proposed bicycle and pedestrian facilities implement Open Space and Recreation and Circulation policies of the Saggio Hills Area Plan. The Project's Vegetation Management Plan addresses fire safety policies in the Public Facilities
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Packet Pg. 161 Attachment: 2. Ordinance (DA 2023-01 Saggio Hills Aff Housing) (4000 : Saggio Hills Affordable Housing TM, DA, DDA) Ordinance No. ___
& Services chapter of the Saggio Hills Area Plan. The Project's environmentally-sensitive siting of development, preservation of open space, design features, and the landscaping plans address the design-related policies of the Saggio Hills Area Plan. The Project received a parking incentive and a waiver of minimum lot size and width requirements in accordance with State Density Bonus Law. The Project is consistent with all other Land Use Code requirements including those for design and lighting of parking areas, bicycle parking, transit access, refuse and recycling storage, setbacks, building height, and site coverage.
2. The Saggio Hills Affordable Housing Project DA will provide Healdsburg with tangible benefits including 118 units of affordable housing and associated amenities and site improvements.
3. The Saggio Affordable Housing Project is addressed in the Final Environmental Impact Report for the Saggio Hills Planned Development Project (State Clearinghouse No. 2003062025) which was certified by the Healdsburg City Council through the adoption of Resolution No. 15-2011. Certain components of development on the site (extension of Parkland Farms Boulevard and related utilities; rough grading of Project site; filling of wetlands and establishment of mitigation wetlands; creek restoration) were addressed at a project-level in the Saggio Hills Project EIR. The Saggio Hills Project EIR addressed the development of up to 150 units of affordable housing on the site at a programmatic level.
An Initial Study/Environmental Checklist was prepared for the Saggio Hills Affordable Housing Project and, based on the analysis contained therein, the Community Development Director determined that an Addendum to the Saggio Hills Project EIR is the appropriate environmental document for the Project. Based upon substantial evidence demonstrated by the analysis included in the Addendum, none of the conditions described in Sections 15162 or 15163 of the CEQA Guidelines calling for the preparation of a subsequent or supplemental EIR or negative declaration have occurred, specifically:
(a) There have not been any substantial changes in the Project that require major revisions of the Saggio Hills Project EIR because of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (b) There have not been any substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the Saggio Hills Project EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and (c) There is no new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the Saggio Hills Project EIR was certified, that shows any of the following:
i. the Project will have one or more significant effects not discussed in the Saggio Hills Project EIR;
ii. significant effects previously examined will be substantially more severe than shown in the Saggio Hills Project EIR;
iii. mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects
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of the Project, but the project proponents decline to adopt the mitigation measure or alternative; or
iv. mitigation measures or alternatives which are considerably different from those analyzed in the Saggio Hills Project EIR would substantially reduce one or more significant effects on the environment, but the Project proponents decline to adopt the mitigation measure or alternative.
Section 2. Approval and Execution. The City Council hereby approves the Saggio Hills Affordable Housing Project Development Agreement, substantially in the form attached hereto as Exhibit 1, subject to such minor and clarifying changes consistent with the terms thereof as may be approved by the City Attorney prior to execution hereof. The City Council further authorizes the City Manager to execute and take all necessary actions to implement the Agreement on behalf of the City.
Section 3. Severability. If any section, subsection, sentence, clause or phrase or word of this Ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have passed and adopted this Ordinance and each and all provisions thereof irrespective of the fact that any one or more of said provisions may be declared unconstitutional, unlawful or otherwise invalid.
Section 4. Effective and Operative Dates. This Ordinance of the City of Healdsburg shall be effective thirty (30) days after the date of its passage. Before expiration of fifteen days after its passage, this ordinance or a summary thereof as provided in Government Code Section 36933, shall be published at least once in a newspaper of general circulation published and circulated in the City of Healdsburg, along with the names of the City Council voting for and against its passage.
This ordinance was introduced by the City Council of the City of Healdsburg, County of Sonoma, at a regular meeting thereof on the 3
rd day of April, 2023, and passed and adopted on the __day of ______, 2023, by the following roll call vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ABSTAINING: Councilmembers:
SO ORDERED ATTEST
__________________________________ ____________________________________ Ariel Kelley, Mayor Raina Allan, City Clerk
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Packet Pg. 163 Attachment: 2. Ordinance (DA 2023-01 Saggio Hills Aff Housing) (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
Attention: City Clerk
Space Above This Line Reserved for Recorder’s Use
Exempt from Recording Fee Per Government Code Sections 6103 and 27383
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF HEALDSBURG,
a California municipal corporation
AND
FREEBIRD DEVELOPMENT COMPANY, LLC,
a California limited liability company
FOR
SAGGIO HILLS AFFORDABLE HOUSING PROJECT
DATED ___________, 2023
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TABLE OF CONTENTS
Page
OAK #4857-7768-0689 v9
-iARTICLE 1 DEFINITIONS............................................................................................... 4 Section 1.1 Definitions............................................................................................ 4 ARTICLE 2 GENERAL PROVISIONS............................................................................ 9 Section 2.1 Ownership of Property......................................................................... 9 ARTICLE 3 EFFECTIVE DATE AND TERM................................................................ 9 Section 3.1 Effective Date ...................................................................................... 9 Section 3.2 Term..................................................................................................... 9 Section 3.3 City Representations and Warranties................................................. 10 Section 3.4 Developer Representations and Warranties....................................... 10 ARTICLE 4 DEVELOPMENT OF PROPERTY........................................................... 11 Section 4.1 The Project......................................................................................... 11 Section 4.2 Project Phasing................................................................................... 12 Section 4.3 Vested Rights..................................................................................... 13 Section 4.4 Reservations of Authority.................................................................. 13 Section 4.5 Regulation by Other Public Agencies................................................ 14 Section 4.6 Life of Project Approvals................................................................... 14 Section 4.7 Initiatives............................................................................................ 14 Section 4.8 Timing of Development..................................................................... 15 Section 4.9 No Conflicting Enactments................................................................ 15 Section 4.10 Changes in the Law............................................................................ 15 ARTICLE 5 DEVELOPMENT STANDARDS AND FEES .......................................... 16 Section 5.1 Compliance With Laws...................................................................... 16 Section 5.2 Construction Progress Meetings........................................................ 16 Section 5.3 City of Healdsburg Business License ................................................ 16 Section 5.4 Developer to Pay All Applicable Fees............................................... 16 ARTICLE 6 ANNUAL REVIEW..................................................................................... 16 Section 6.1 Periodic Review................................................................................. 16 ARTICLE 7 MORTGAGEE PROTECTION................................................................. 17 Section 7.1 Mortgagee Protection......................................................................... 17 Section 7.2 Mortgagee Not Obligated .................................................................. 18 Section 7.3 Notice of Default to Mortgagee ......................................................... 18 Section 7.4 No Supersedure.................................................................................. 18
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Page
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-iiARTICLE 8 AMENDMENT OF AGREEMENT AND EXISTING
APPROVALS ............................................................................................... 18 Section 8.1 Amendment of Agreement By Mutual Consent ................................ 18 Section 8.2 Insubstantial Amendments to Agreement.......................................... 18 Section 8.3 Major Amendments ........................................................................... 19 Section 8.4 Requirement for Writing.................................................................... 19 Section 8.5 Amendments to Development Agreement Statute............................. 19 ARTICLE 9 COOPERATION AND IMPLEMENTATION ........................................ 19 Section 9.1 Subsequent Project Approvals........................................................... 19 Section 9.2 Processing Applications for Subsequent Project Approvals.............. 20 Section 9.3 Other Agency Subsequent Project Approvals; Authority of City...... 20 Section 9.4 Cooperation in the Event of Legal Challenge.................................... 20 ARTICLE 10 ASSIGNMENT, TRANSFER AND NOTICE........................................... 21 Section 10.1 Assignment ........................................................................................ 21 ARTICLE 11 DEFAULT; REMEDIES; TERMINATION............................................. 22 Section 11.1 Breach ................................................................................................ 22 Section 11.2 Default................................................................................................ 23 Section 11.3 Withholding of Permits...................................................................... 23 Section 11.4 Remedies............................................................................................ 23 Section 11.5 Enforced Delay; Extension of Time of Performance......................... 23 Section 11.6 Resolution of Disputes....................................................................... 24 Section 11.7 Surviving Provisions.......................................................................... 24 ARTICLE 12 INDEMNITY AND INSURANCE ............................................................. 24 Section 12.1 Indemnity and Hold Harmless........................................................... 24 Section 12.2 Insurance Requirements..................................................................... 24 Section 12.3 Workers’ Compensation Insurance.................................................... 25 Section 12.4 No Supersedure.................................................................................. 25 ARTICLE 13 MISCELLANEOUS PROVISIONS........................................................... 25 Section 13.1 Incorporation of Recitals, Exhibits and Introductory Paragraph ....... 25 Section 13.2 Severability ........................................................................................ 25 Section 13.3 Construction....................................................................................... 25 Section 13.4 Covenants Running with the Land..................................................... 26 Section 13.5 Notices ............................................................................................... 26
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Page
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-iiiSection 13.6 Counterparts and Exhibits; Entire Agreement ................................... 26 Section 13.7 Recordation of Agreement................................................................. 27 Section 13.8 No Joint Venture or Partnership ........................................................ 27 Section 13.9 Waivers.............................................................................................. 27 Section 13.10 California Law; Venue....................................................................... 27 Section 13.11 City Approvals and Actions............................................................... 27 Section 13.12 Signatures........................................................................................... 27
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-7768-0689 v9
-iv-
LIST OF EXHIBITS:
EXHIBIT A Legal Description of Property
EXHIBIT B Site Map of Property
EXHIBIT C Annual Review Form
EXHIBIT D Assignment and Assumption Agreement
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Packet Pg. 168 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
1 DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (“Agreement”) dated for reference purposes as of ___________, 2023 (“Date of Agreement”), is entered into by and between FREEBIRD DEVELOPMENT COMPANY, LLC, a California limited liability company (“Developer”), and the CITY OF HEALDSBURG, a California municipal corporation (“City”). Developer and City are sometimes referred to individually herein as a “Party” and collectively as “Parties.”
RECITALS
The following recitals are a substantive part of this Agreement; capitalized terms used herein and not otherwise defined are defined in Section 1.1 of this Agreement.
A. In order to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic costs and risk of development, the Legislature of the State of California enacted Section 65864 et seq. of the Government Code (“Development Agreement Statute”), which authorizes a city and a developer having a legal or equitable interest in real property to enter into a binding, long-term development agreement, establishing certain development rights in the property. In accordance with the Development Agreement Statute, the City has adopted rules and regulations establishing procedures and requirements for consideration of development agreements, which procedures and requirements are codified in Chapter 17.20 of Title 17 of the Healdsburg Municipal Code (“Development Agreement Regulations”). The provisions of the Development Agreement Statute and the City’s Development Agreement Regulations are collectively referred to herein as the “Development Agreement Law.”) This Agreement has been drafted and processed pursuant to the Development Agreement Law.
B. On April 11, 2011, under the authority of Ordinance No. 1107, the City and Sonoma Luxury Resort, LLC, a Delaware limited liability company (“SLR”), entered into a Development Agreement By and Between The City of Healdsburg and Sonoma Luxury Resort LLC, as evidenced by a Memorandum of Development Agreement recorded in the Official Records of Sonoma County (“Official Records”) on April 27, 2011 as Instrument No. 2011037227; as amended on April 5, 2016 by that certain Insubstantial Amendment To The Development Agreement By and Between The City Of Healdsburg And Sonoma Luxury Resort, LLC, Dated April 11, 2011, by and between City and SLR; as amended on May 30, 2019 by that certain Second Insubstantial Amendment To Development Agreement by and between City and SLR, as evidenced by a Memorandum of Second Insubstantial Amendment to Development Agreement, of same date, recorded in the Official Records on August 5, 2019, at Instrument No. 2019053988; as amended on January 19, 2021 by that certain Third Amendment to Development Agreement, by and between City and SLR and a Memorandum of Third Amendment to Development Agreement recorded in the Official Records on March 4, 2021 as Instrument No. 2021025567; and as affected by that certain Partial Assignment And Assumption Of Developer’s Interest Under Development Agreement Between The City of Healdsburg and Sonoma Luxury Resort LLC, by and between SLR and Oaks & Olives and consented to by the City, and recorded in the Official Records on April 22, 2021 as Instrument No. 2021049954 in connection with the
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Packet Pg. 169 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
2 sale of Parcel 1, Parcel 4 and Parcel 7 of first final map filed for record in the Official Records on May 23, 2018, in Book 795 of Maps at Pages 31-40, Document No. 2018-037508 (“FM-1”), from SLR to Oaks & Olives (collectively, the “SLR Development Agreement”).
C. The SLR Development Agreement governs, among other matters, the dedication by SLR to the City of two legal parcels described as Parcels 5 and 6 of FM-1, as amended by the Parcel 5, 6 and 11 Lot Line Adjustment, approved by the City on May 12, 2022, pursuant to LLA 2021-05, and described in the legal description attached to this Agreement as Exhibit A and depicted in the Site Map attached to this Agreement as Exhibit B, both of which are incorporated herein by this reference (“Property”), for development of up to 150 affordable housing units.
D. On February 16, 2021, City and Developer entered into an Exclusive Negotiation Rights Agreement (“ENA”), which established procedures and standards for the submittal and processing of applications for land use entitlements needed to develop the Property and the negotiation by the City and the Developer of an agreement pursuant to which the City will convey the Property to the Developer on the condition that certain specified development activities will be undertaken by Developer on the Property, consistent with the terms of the SLR Development Agreement governing the dedication of the Property.
E. Pursuant to the ENA, Developer has submitted applications to the City for approval of design review (“DR 2022-05”) and a tentative map (“TM 2022-02”) to secure the land use entitlements necessary to develop the Project, as defined in Section 4.1 of this Agreement, on the Property.
F. The City has taken numerous actions in connection with the development of the Project on the Property. These include:
(1) Planning Commission and City Council consideration of the Final Environmental Impact Report for the Saggio Hills Project (“Saggio Hills FEIR”), certified as adequate and complete for the Saggio Hills Project pursuant to the California Environmental Quality Act (California Public Resources Code Section 21000 et seq.) (“CEQA”) by City Council Resolution No. 15-2011, and an Addendum to the Saggio Hills FEIR for the Project, dated September 2022, as reflected in the findings of the DR Resolution and TM Resolution, respectively, referenced below (“CEQA Determination”);
(2) Planning Commission approval of DR 2022-05 for the Project, as evidenced by Planning Commission Resolution No. 2022-18, adopted on November 8, 2022 (“DR Resolution”); and
(3) City Council approval of TM 2022-02 for the Project, as evidenced by City Council Resolution No. _____, adopted on _________, 2023 (“TM Resolution”).
The approvals and development policies described in this Recital E are collectively referred to herein as the “Existing Approvals”.
G. City desires to advance the socioeconomic and environmental interests of the City and its residents by encouraging quality development of affordable housing that serves to meet
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3 local and regional demand for housing, while also enhancing the ability of persons employed locally to reside closer to their place of employment and reduce impacts to local and regional transportation networks, greenhouse gas emissions and air quality; promoting development of public recreational infrastructure to serve the needs of residents of the Project and those living in proximity to the Project; and expanding the City’s property tax base.
H. For the reasons recited herein, City and Developer have determined that the Project is a development for which this Agreement is appropriate. This Agreement will eliminate uncertainty regarding Existing Approvals and Subsequent Project Approvals, thereby encouraging planning for, investment in, and commitment to use and development of the Property. Continued use and development of the Property will in turn provide substantial public benefits to the City, and will contribute to the provision of needed affordable housing in the City, thereby achieving the goals and purposes for which the Development Agreement Law was enacted and for which the City has elected to enter into this Development Agreement.
I. The terms and conditions of this Agreement have undergone review by City staff, its Planning Commission, and its City Council at publicly noticed meetings and have been found to be fair, just, and reasonable and in conformance with the goals, policies, standards, and land use designations specified in the City’s General Plan and Zoning Ordinance, will provide tangible benefits to the City of Healdsburg beyond those that may be required by conditions of approval and, further, the City Council finds that the economic interests of the citizens of the City of Healdsburg and the public health, safety, and welfare will be best served by entering into this Agreement.
J. This Agreement between the City and Developer sets forth the applicable City standards and requirements that apply to Developer’s development of the Project and provides Developer with a vested right to develop the Project in accordance with the Existing Approvals and the Applicable Law.
K. Pursuant to the terms of the SLR Development Agreement, the Property was conveyed by SLR to the City pursuant to Grant Deed dated November 14, 2022, and recorded in Official Records on February 22, 2023, as Instrument No. 2023007222.
L. On February 28, 2023, the City of Healdsburg Planning Commission, the initial hearing body for purposes of development agreement review, considered and adopted Resolution No. 2023-03 recommending that the City Council approve this Agreement. On ________, 2023, the City Council of the City of Healdsburg adopted Ordinance No. 2023-___ approving this Agreement. The Ordinance took effect on ________, 2023 (the “Effective Date”).
AGREEMENT
NOW, THEREFORE, in consideration of the promises, covenants and provisions set forth herein, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
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Packet Pg. 171 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
4 ARTICLE 1 DEFINITIONS
Section 1.1 Definitions.
“Adjusted for family size appropriate to the unit” shall have the meaning set forth in Section 50052.5 of the California Health and Safety Code, as amended or any successor statute thereto, subject to the application of federal rules and regulations, if applicable to financing sources for all or a portion of the Project, including applicable federal and TCAC regulations.
“Affiliate of Developer” means either: 1) an entity or entities in which Developer retains more than fifty percent (50%) in the aggregate, directly or indirectly, of the ownership or beneficial interest and retains full management and control of the day-to-day affairs of the transferee entity or entities, either directly or indirectly through another entity, subject only to certain major events requiring the consent or approval of the other owners of such entity; or 2) a limited partnership formed to own and finance those improvements to be constructed as part of Phase 1 Improvements, Phase 2 Improvements or Phase 3 Improvements to be rented to lower income households, of which the Developer, either directly or through a single-member LLC of which Developer is the sole member/manager, is a general partner or a co-general partner and will retain the management and control, together with any co-general partner, of the day-to-day affairs of the limited partnership, subject only to certain major events requiring the consent or approval of the other owners of such entity.
“Affordable housing cost” is defined in Section 50052.5 of the California Health and Safety Code, as amended or any successor statute thereto. “Affordable rent” shall mean rental rates no greater than that considered as affordable rent for extremely low income households to lower income households, adjusted for family size appropriate to the unit, determined in accordance with California Health and Safety Code section 50053, as amended, or any successor statute thereto; provided, however, that for lower income households with gross incomes that exceed 60 percent of the area median income adjusted for family size appropriate to the unit, rental rates may be established at a level not to exceed 30 percent of gross income of the household. Notwithstanding the foregoing, if applicable to financing sources for all or a portion of the Project, during the fifteen (15) year tax credit compliance period under Internal Revenue Code Section 42, or such longer term of the regulatory agreement to be executed by TCAC and Developer and recorded against the applicable portion of the Project, the City hereby permits Developer to use the occupancy standards and rent levels required by TCAC.
“Agreement” means this Development Agreement.
“Applicable City Regulations” means (a) all City policies, standards and specifications set forth in this Agreement and the Existing Approvals, including the specific conditions of approval adopted with respect to the Existing Approvals; (b) with respect to matters not addressed by this Agreement or the Existing Approvals but governing permitted uses of the Property; building locations, sizes, densities, intensities, design and heights; site design, setbacks, lot coverage and open space; and parking; those City ordinances, rules, regulations,
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Packet Pg. 172 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
5 official policies, standards and specifications in force and effect on the Effective Date; and (c) with respect to all other matters, including building, plumbing, mechanical and electrical codes, those City ordinances, rules, regulations, official policies, standards and specifications in force and effect as may be enacted, adopted and amended from time to time, including New City Laws, except those in conflict with this Agreement.
“Applicable Law” means the Applicable City Regulations and all State and Federal laws and regulations applicable to the Property and the Project as enacted, adopted and amended from time to time.
“Area Median Income” means the median household income (adjusted for family size appropriate to the unit) of the Metropolitan Statistical Area in which Sonoma County is located, as established pursuant to Section 50093 of the California Health and Safety Code, as amended or any successor statute thereto, or, as applicable, the median income for Sonoma County, California, adjusted for family size appropriate to the unit, as determined by TCAC regulations.
“Assignee” is defined in Section 10.1E.
“CEQA” is defined in Recital F.
“CEQA Determination” is defined in Recital F.
“Changes in the Law” is defined in Section 4.10.
“City” means the City of Healdsburg, a California municipal corporation. “City Parties” means City and its elected and appointed officials, officers, agents, employees, contractors and representatives.
“Claims” means liabilities, obligations, orders, claims, damages, fines, penalties and expenses, including attorneys’ fees and costs.
“Connection Fees” means those fees charged by City on a citywide basis or by a utility provider to utility users as a cost for connecting to water, sanitary sewer, gas, electric and other applicable utilities.
“Construction of Phase 1 Improvements have commenced” shall mean City has issued one or more building permits for the construction of residential building improvements on Lot 14 and Developer has undertaken substantial work on said Lot in reliance thereon. “Cure Period” is defined in Section 11.1.
“Date of Agreement” is defined in the introductory paragraph preceding the Recitals of this Agreement.
“DDA” is defined in Section 2.1.
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Packet Pg. 173 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
6 “Default” is defined in Section 11.2.
“Developer” means Freebird Development Company, LLC, a California limited liability company, and its permitted assignees and successors-in-interest under this Agreement. “Development Agreement Law” is defined in Recital A.
“Development Agreement Regulations” is defined in Recital A. “Development Agreement Statute” is defined in Recital A. “DR 2022-05” is defined in Recital E.
“DR Resolution” is defined in Recital F.
“Effective Date” is defined in Recital L and Section 3.1. “ENA” is defined in Recital D.
“Exactions” means exactions that may be imposed by the City as a condition of developing the Project, including requirements for acquisition, dedication or reservation of land; and obligations to construct on-site or off-site public and private infrastructure improvements such as roadways, utilities or other improvements necessary to support the Project, whether such exactions constitute subdivision improvements, mitigation measures in connection with environmental review of the Project, or impositions made under Applicable City Regulations.
For purposes of this Agreement, Exactions do not include Impact Fees. “Existing Approvals” is defined in Recital F.
“Extended Cure Period” is defined in Section 11.1.
“Extremely low income households” is defined in Section 50106 of the California Health and Safety Code, as amended or any successor statute thereto. “FM-1” is defined in Recital B.
“Impact Fees” means the monetary amount charged by City in connection with a development project for the purpose of defraying all or a portion of the cost of mitigating the impacts of the development project or development of the public facilities related to the development project, including, any “fee” as that term is defined by Government Code section 66000(b), as amended or any successor statute thereto. For purposes of this Agreement, a fee that meets both the definitions of an Impact Fee and an Exaction, will be considered to be an Impact Fee.
“Insubstantial Amendment” is defined in Section 8.2.
“Litigation Challenge” is defined in Section 9.4.
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7 “Lot 1” is defined in Section 4.1 A.
“Lot 1 Improvements” is defined in Section 4.1 D.
“Lot 2” is defined in Section 4.1 A.
“Lot 2 Improvements” is defined in Section 4.1 E.
“Lot 3” is defined in Section 4.1 A.
“Lot 3 Improvements” is defined in Section 4.1 F.
“Lot 3 Ingress & Egress Easement” is defined in Section 4.1 F. “Lot 14” is defined in Section 4.1 A.
“Lot 14 Improvements” is defined in Section 4.1 H.
“Lot 15” is defined in Section 4.1 A.
“Lot 15 Improvements” is defined in Section 4.1 I.
“Lot 15 Owner-Occupied Option” is defined in Section 4.1 I. “Lot 15 Rental Option” is defined in Section 4.1 I.
“Lower income households” is defined in Section 50079.5 of the California Health and Safety Code, as amended or any successor statute thereto. “Mortgage” is defined in Section 7.1.
“Mortgagee” is defined in Section 7.1.
“New City Laws” means and includes any ordinances, resolutions, orders, rules, official policies, standards, specifications, guidelines or other regulations, which are promulgated or adopted by the City (including but not limited to any City agency, body, department, officer or employee) or its electorate (through their power of initiative or otherwise) after the Effective Date.
“Official Records” is defined in Recital B.
“Other Agency Subsequent Project Approvals” means Subsequent Project Approvals to be obtained from entities other than City. “Owner Occupied Affordable Housing Covenant” is defined in Section 4.1 G. and I.
“Parcel A” is defined in Section 4.1 A.
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8 “Parcel A Improvements” is defined in Section 4.1 B.
“Parcel A Public Access Easement” is defined in Section 4.1 B. “Parcel B” is defined in Section 4.1 A.
“Parcel B Improvements” is defined in Section 4.1 C.
“Party/Parties” is defined in the introductory paragraph preceding the Recitals of this Agreement.
“Permitted Transfer” is defined in Section 10.1D.
“Persons and families of moderate income” is defined in Section 50093 of the California Health and Safety Code, as amended or any successor statute thereto. “Phase 1 Improvements” is defined in Section 4.2.
“Phase 2 Improvements” is defined in Section 4.2.
“Phase 3 Improvements” is defined in Section 4.2.
“Phase 4 Improvements” is defined in Section 4.2.
“Planning Commission” means the Planning Commission of the City of Healdsburg.
“Private Improvements” means the Phase 1 Improvements, Phase 2 Improvements, Phase 3 Improvements and Phase 4 Improvements, excluding the Public Improvements.
“Processing Fees” means all fees for processing development project applications, including any required supplemental or other further environmental review, plan checking (time and materials) and inspection and monitoring for land use approvals, design review, grading and building permits, General Plan maintenance fees, and other permits and entitlements required to implement the Project, which are in effect at the time those permits, approvals or entitlements are applied for, and which are intended to cover the actual costs of processing the foregoing.
“Project” is defined in Section 4.1.
“Project Approvals” means the Existing Approvals and the Subsequent Project Approvals.
“Property” is defined in Recital C and is legally described in the legal description attached to this Agreement as Exhibit A and depicted in the Site Map attached to this Agreement as Exhibit B.
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9 “Public Improvements” is defined in Section 4.1 J.
“Rental Affordable Housing Covenant” is defined in Section 4.1 F., H. and I. “Saggio Hills FEIR” is defined in Recital F.
“Site Map” means the map of the Property attached hereto as Exhibit B. “SLR” and “SLR Development Agreement” are defined in Recital B. “Subsequent Project Approvals” is defined in Section 9.1. “TCAC” means the California Tax Credit Allocation Committee. “Term” is defined in Section 3.2.
“Townhome Lots” is defined in Section 4.1 A.
“Townhome Lot Improvements” is defined in Section 4.1 G. “TM 2022-02” is defined in Recital E.
“TM Resolution” is defined in Recital F.
“Very low income households” is defined in Section 50105 of the California Health and Safety Code, as amended or any successor statute thereto.
ARTICLE 2 GENERAL PROVISIONS
Section 2.1 Ownership of Property. The Parties hereby acknowledge that, as of the Effective Date, City owns fee title to the Property. Developer has a legal and equitable interest in the Property by virtue of the Disposition and Development Agreement (“DDA”) entered into by and between the City and Developer dated ____________, 2023, and approved by the City of Healdsburg City Council pursuant to Resolution No. _____ on ____________, 2023, governing the terms and conditions of transfer of fee title to the Property, excluding Parcel B, from City to Developer for the development and construction of the Project ARTICLE 3 EFFECTIVE DATE AND TERM
Section 3.1 Effective Date. This Agreement shall become effective upon the date that the ordinance approving this Agreement becomes effective (“Effective Date”).
Section 3.2 Term. The term of this Agreement (“Term”) shall commence upon the Effective Date and expire on the first to occur of: (i) completion of development of the Phase 1 Improvements, Phase 2 Improvements, Phase 3 Improvements and Phase 4 Improvement as evidenced by City’s issuance of a certificate of occupancy for each phase, and satisfaction of all of Developer’s obligations in connection therewith, (ii) the tenth (10th) anniversary of the Effective Date if construction of Phase 1 Improvements have commenced on or before the date
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10 which is five (5) years after the Effective Date, or (iii) the fifth (5th) anniversary of the Effective Date if construction of Phase 1 Improvements have not commenced on or before the date which is five (5) years after the Effective Date. Upon expiration of the Term, this Agreement shall be deemed terminated and of no further force and effect, subject, however, to the provisions set forth in Section 11.7.
Section 3.3 City Representations and Warranties. City represents and warrants to Developer that, as of the Effective Date:
A. City is a municipal corporation, and has all necessary powers under the laws of the State of California to enter into and perform the undertakings and obligations of City under this Agreement.
B. The execution and delivery of this Agreement and the performance of the obligations of City hereunder have been duly authorized by all necessary City Council action and all necessary approvals have been obtained.
C. This Agreement is a valid obligation of City and is enforceable in accordance with its terms.
During the Term of this Agreement, City shall, upon learning of any fact or condition that would cause any of the warranties and representations in this Section 3.3 not to be true, immediately give written notice of such fact or condition to Developer.
Section 3.4 Developer Representations and Warranties. Developer represents and warrants to City that, as of the Effective Date:
A. Developer is duly organized and validly existing under the laws of the State of California, and is in good standing and has all necessary powers under the laws of the State of California to own property interests and in all other respects enter into and perform the undertakings and obligations of Developer under this Agreement.
B. The execution and delivery of this Agreement and the performance of the obligations of Developer hereunder have been duly authorized by all necessary corporate action.
C. This Agreement is a valid obligation of Developer and is enforceable in accordance with its terms.
D. Developer has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Developer’s creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Developer’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Developer’s assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.
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11 During the Term of this Agreement, Developer shall, upon learning of any fact or condition that would cause any of the warranties and representations in this Section 3.4 not to be true, immediately give written notice of such fact or condition to City.
ARTICLE 4 DEVELOPMENT OF PROPERTY
Section 4.1 The Project. Consistent with the Existing Approvals, the Project is defined to mean all of the following:
A. Subdivision of the Property into a total of 17 parcels, comprised of two parcels for open space (“Parcel A” and “Parcel B”), one parcel for outdoor amenities (“Lot 1”), one parcel for a community building (“Lot 2”), one parcel for 42 residential housing units (“Lot 3”), ten parcels for a townhome residence on each parcel (“Townhome Lots”), one parcel for 48 residential housing units (“Lot 14”), and one parcel for 18 residential housing units (“Lot 15”), as said parcels and lots are shown on TM 2022-02.
B. Parcel A shall remain as open space and improved with pedestrian trails (“Parcel A Improvements”) to be constructed and maintained by Developer, and subject to a non-exclusive public easement in favor of the City for public access on, over and across Parcel A as necessary to access the Parcel A Improvements, in perpetuity, as more particularly set forth in the “Parcel A Public Access Easement” attached to the DDA.
C. Parcel B shall remain as open space and improved with a multi-use trail (“Parcel B Improvements”) to be constructed and maintained by City, and fee title to Parcel B shall be retained by City.
D. Lot 1 shall be improved with outdoor amenities such as community gardens, picnic areas and/or a small farm (“Lot 1 Improvements”), to be constructed by Developer, maintained by the Owners, and available for use by residents of Lot 3, Townhome Lots, Lot 14 and Lot 15.
E. Lot 2 shall be improved with a one-story community building of approximately 3,067 square feet, 4 surface parking spaces and associated hardscape and landscaping improvements (“Lot 2 Improvements”), to be constructed by Developer, maintained by the Owners, and available for use by residents of Lot 3, Townhome Lots, Lot 14 and Lot 15.
F. Lot 3 shall be improved with four, three-story residential buildings of a height not to exceed 35 feet, containing 42 residential units totaling approximately 45,299 square feet and comprised of one (1) studio unit, nineteen (19) one-bedroom units, eleven (11) twobedroom units, and eleven (11) three-bedroom units, 64 surface parking spaces and associated hardscape and landscaping improvements (“Lot 3 Improvements”), which residential units shall be restricted for rental to and occupancy by lower income households, inclusive of very low income households and extremely low income households, at an affordable rent, for a minimum period of 55 years, as more particularly set forth in the “Rental Affordable Housing Covenant” attached to the DDA. Further, Lot 3 shall be subject to a non-exclusive public easement in favor of the City for ingress and egress from Parkland Farms Boulevard on, over and across Lot 3 to
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12 the planned parking lot serving the Healdsburg Ridge Open Space Reserve to be located adjacent to and east of Lot 3, in perpetuity, as more particularly set forth in the “Lot 3 Ingress & Egress Easement” attached to the DDA.
G. The ten (10) Townhome Lots shall be improved with a two-story, threebedroom townhome residence on each parcel of a height not to exceed 28 feet, and 1,766 square feet, and associated surface parking and hardscaping and landscaping improvements (“Townhome Lot Improvements”), which townhome residences shall be restricted for sale to and occupancy by persons and families of moderate income, at an affordable housing cost, for a minimum period of 45 years, as more particularly set forth in the “Owner-Occupied Affordable Housing Covenant” attached to the DDA.
H. Lot 14 shall be improved with one, three-story residential building of a height not to exceed 35 feet, containing 48 residential units totaling approximately 59,531 square feet and comprised of thirteen (13) studio units, eleven (11) one-bedroom units, twelve (12) twobedroom units, and twelve (12) three-bedroom units, 60 surface parking spaces and associated hardscape and landscaping improvements (“Lot 14 Improvements”), which residential units shall be restricted for rental to and occupancy by lower income households, inclusive of very low income households and extremely low income households, at an affordable rent, for a minimum period of 55 years, as more particularly set forth in the “Rental Affordable Housing Covenant” attached to the DDA.
I. Lot 15 shall be improved with two, three-story residential buildings of a height not to exceed 35 feet, containing 18 residential units totaling approximately 20,077 square feet and comprised of one (1) studio unit, six (6) one-bedroom units, six (6) two-bedroom units, and five (5) three-bedroom units, 29 surface parking spaces and associated hardscape and landscaping improvements (“Lot 15 Improvements”), which residential units shall be restricted either (i) for rental to and occupancy by lower income households, inclusive of very low income households and extremely low income households, at an affordable rent, for a minimum period of 55 years, as more particularly set forth in the “Rental Affordable Housing Covenant” attached to the DDA (“Lot 15 Rental Option”), or (ii) for sale to and occupancy by persons and families of moderate income, at an affordable housing cost, for a minimum period of 45 years, as more particularly set forth in the “Owner-Occupied Affordable Housing Covenant” attached to the DDA (“Lot 15 Owner-Occupied Option”).
J. Public improvements shall include (i) construction of sidewalks and streetlights along Passalacqua Drive and Parkland Farms Boulevard fronting the Property, (ii) striping of that portion of Passalacqua Drive and Parkland Farms Boulevard fronting the Property, (iii) installation and construction of a Rectangular Rapid Flashing Beacon at the crossing of Parkland Farms Boulevard located between Parcel B and Lot 2, and (iv) the Parcel A Improvements (“Public Improvements”).
Section 4.2 Project Phasing. The Project is intended to be constructed in no more than four phases by Developer. The first phase of the Project will consist of the construction and completion thereof of the Parcel A Improvements, Lot 2 Improvements, Lot 14 Improvements, and the Public Improvements in accordance with the Existing Approvals (“Phase 1 Improvements”). The Parcel B Improvements will be designed and constructed by City, at its
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13 sole cost and expense, either before or concurrently with the construction of the Phase 1 Improvements by Developer. The second phase of the Project will consist of the construction and completion thereof of the Lot 1 Improvements and Lot 3 Improvements in accordance with the Existing Approvals (“Phase 2 Improvements”). The third phase of the Project will consist of the construction and completion thereof of the Lot 15 Improvements in accordance with the Existing Approvals (“Phase 3 Improvements”). The fourth phase of the Project will consist of the construction and completion thereof of the Townhome Lot Improvements in accordance with the Existing Approvals (“Phase 4 Improvements”). Phase 2 Improvements may be combined with the Phase 1 Improvements. Further, if Developer elects to develop and construct the Lot 15 Improvements pursuant to the Lot 15 Rental Option, then said Lot 15 Improvements may be constructed and completed as part of Phase 2 Improvements and/or the Phase 1 Improvements; however, if Developer elects to develop and construct the Lot 15 Improvements pursuant to the Lot 15 Owner-Occupied Option, then said Lot 15 Improvements shall be constructed and completed as the Phase 3 Improvements, which may be combined with the Phase 4 Improvements.
Section 4.3 Vested Rights. Subject to the fulfillment of the provisions of this Agreement and the obligations required by the Project Approvals, the City hereby grants to Developer the present vested right to develop and construct on the Property all the improvements authorized by the Project Approvals and this Agreement. To the extent permitted by Applicable Law, and except as otherwise provided herein, no future modification of the City’s General Plan, Municipal Code, ordinances, policies or regulations shall apply to the Property that purports to:
(i) limit the permitted uses of the Property, the density and intensity of use (including but not limited to floor area ratios of commercial/retail buildings), or the maximum height and size of proposed buildings; (ii) impose requirements for reservation or dedication of land for public purposes or requirements for infrastructure, public improvements, or public utilities, other than as provided in the Project Approvals or pursuant to this Agreement; (iii) impose conditions upon development of the Property other than as permitted by the Applicable City Regulations, Changes in the Law, the Project Approvals and this Agreement; (iv) limit the timing, phasing or rate of development of the Property; provided, however, that nothing in this Agreement shall prevent or preclude City from adopting any land use ordinances, policies, regulations or amendments permitted herein; or (v) limit the location of building sites, grading or other improvements on the Property in a manner that is inconsistent with or substantially more restrictive than the limitations included in this Agreement or the Project Approvals.
Section 4.4 Reservations of Authority. The parties acknowledge and agree that City is restricted in its authority to limit its police power by contract. This Agreement shall be construed to reserve to City all such power and authority which cannot be restricted by contract.
Notwithstanding any other provision of this Agreement to the contrary, the following regulations and provisions shall apply to the development of the Project:
A. Processing Fees, Impact Fees, Connection Fees and other fees of every kind and nature imposed by the City that are in force and effect at the time land use or development permits, building permits, approvals or entitlements are applied for or issued on any or all portions of the Project, and any increase or modification to those fees that are in force and
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14 effect at the time land use or development permits, building permits, approvals or entitlements are issued on any or all portions of the Project.
B. Regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure then applicable in City at the time of permit application.
C. Regulations governing construction standards and specifications, including City’s building code, plumbing code, mechanical code, electrical code, fire code and grading code, and all other uniform construction codes then applicable in City at the time of permit issuance.
D. New City Laws applicable to the Property or Project that do not conflict with this Agreement.
E. New City Laws that may be in conflict with this Agreement but that are necessary to protect persons or property from dangerous or hazardous conditions that create a threat to the public health or safety or create a physical risk, based on findings by the City Council identifying the dangerous or hazardous conditions requiring such changes in the law, why there are no feasible alternatives to the imposition of such changes, and how such changes would alleviate the dangerous or hazardous condition.
F. Exactions required by this Agreement and the Existing Approvals.
Section 4.5 Regulation by Other Public Agencies. City and Developer acknowledge and agree that other public agencies not within the control of City may possess authority to regulate aspects of the development of the Property separately from or jointly with City, and this Agreement does not limit the authority of such other public agencies. Developer shall, at the time required by Developer in accordance with Developer’s construction schedule, apply for all such other permits and approvals as may be required by other governmental or quasigovernmental entities in connection with the development of, or the provision of services to, the Project. Developer shall also pay all required fees when due to such public agencies. Developer acknowledges that City does not control the amount of any such fees. City shall reasonably cooperate with Developer in Developer’s effort to obtain such permits and approvals; provided, however, City shall have no obligation to incur any costs, without compensation or reimbursement, or to amend any City policy, regulation or ordinance in connection therewith.
Section 4.6 Life of Project Approvals. The term of any and all Project Approvals shall automatically be extended for the longer of the Term of this Agreement or the term otherwise applicable to such Project Approvals.
Section 4.7 Initiatives. If any New City Law is enacted or imposed by a citizensponsored initiative or referendum, which New City Law would conflict with the Project Approvals or this Agreement or reduce the development rights or assurances provided by this Agreement, such New City Law shall not apply to the Property or Project; provided, however, the Parties acknowledge that City’s approval of this Agreement is a legislative action subject to referendum. Without limiting the generality of the foregoing, no moratorium or other limitation
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15 (whether relating to the rate, timing, phasing or sequencing of development) affecting subdivision maps, use permits, building permits or other entitlements to use that are approved or to be approved, issued or granted by City shall apply to the Property or Project. Developer agrees and understands that City does not have authority or jurisdiction over any other public agency’s ability to grant governmental approvals or permits or to impose a moratorium or other limitations that may affect the Project. City shall reasonably cooperate with Developer and, at Developer’s expense, shall undertake such actions as may be necessary to ensure this Agreement remains in full force and effect. City, except to submit to vote of the electorate initiatives and referendums required by law to be placed on a ballot and fulfill any legal responsibility to defend a ballot measure passed by its voters, shall not support, adopt or enact any New City Law, or take any other action that would violate the express provisions or spirit and intent of this Agreement.
Section 4.8 Timing of Development. Developer shall have the vested right to develop the Project in such order, at such rate and at such times as Developer deems appropriate in the exercise of its business judgment. In particular, and not in any limitation of any of the foregoing, since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that the failure of the parties therein to consider, and expressly provide for, the timing of development resulted in a later-adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the desire of the Parties hereto to avoid that result. Notwithstanding the adoption of an initiative after the Effective Date by City’s electorate to the contrary, the Parties acknowledge that, except as otherwise provided for in this Agreement, Developer shall have the vested right to develop the Project in such order and at such rate and at such times as Developer deems appropriate in the exercise of its business judgment, provided, however, Developer agrees that the Phase 1 Improvements shall be constructed before or at the same time as the Phase 2 Improvements, Phase 3 Improvements or Phase 4 Improvements, and the Public Improvements shall be constructed at the same time as the Phase 1 Improvements.
Section 4.9 No Conflicting Enactments. Except as otherwise provided in this Agreement, City shall not impose on the Project (whether by action of the City Council or by initiative, referendum or other means) any New City Law that is in conflict with this Agreement or the Existing Approvals. Without limiting the generality of the foregoing, City shall not (i) apply to the Property any change in land use designation or permitted use of the Property; (ii) limit or control the ability to obtain public utilities, services, or facilities (provided, however, nothing herein shall be deemed to exempt the Project or the Property from any water use rationing requirements that may be imposed from time to time in the future or be construed as a reservation of any existing sanitary sewer or potable water capacity); (iii) limit or control the uses; building setbacks, square footage, dimensions, floor plates, height, intensity and design; location of buildings and structures; or spacing between buildings in a manner that is inconsistent with or more restrictive than the limitations included in the Existing Approvals or this Agreement; or (iv) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project.
Section 4.10 Changes in the Law. As provided in section 65869.5 of the Development Agreement Law, this Agreement shall not preclude the applicability to the Project of changes in
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16 laws, regulations, plans or policies, to the extent that such changes are specifically mandated and required by changes in State or Federal laws or by changes in laws, regulations, plans or policies of special districts or other governmental entities, other than the City, created or operating pursuant to the laws of the State of California (“Changes in the Law”). In the event Changes in the Law prevent or preclude compliance with one or more provisions of this Agreement, the Parties shall meet and confer in good faith in order to determine whether such provisions of this Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with Changes in the Law, and City and Developer shall agree to such action as may be reasonably required. Nothing in this Agreement shall preclude Developer from contesting by any available means (including administrative or judicial proceedings) the applicability to the Project of any such Changes in the Law.
ARTICLE 5 DEVELOPMENT STANDARDS AND FEES
Section 5.1 Compliance With Laws. Developer, at its sole cost and expense, shall comply with the requirements of, and obtain all permits and approvals required by local, State and Federal agencies having jurisdiction over the Project. Furthermore, Developer shall carry out the Project work in conformity with all Applicable Law, including City zoning and development standards; building, plumbing, mechanical and electrical codes; all other provisions of the City of Healdsburg Municipal Code; and all applicable disabled and handicapped access requirements, including the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
Section 5.2 Construction Progress Meetings. City and Developer shall have regular meetings during the Term of this Agreement to discuss the progress of the development and construction of the Project. Such meetings shall be attended by representatives of the Parties with experience and expertise in the relevant disciplines to the stage of the development and construction process.
Section 5.3 City of Healdsburg Business License. Developer or its successor, at its expense, shall obtain and maintain a business license issued by the City of Healdsburg at all time during the Term.
Section 5.4 Developer to Pay All Applicable Fees. Developer agrees to pay when due any existing, increased or modified fees, or new fees of general application to development within the City, including Processing Fees, Connection Fees and Impact Fees at the rates then in effect at the time land use or development permits, approvals or entitlements are applied for or issued on any or all portions of the Project. In addition, City may impose and Developer shall comply with those Exactions required by this Agreement and the Project Approvals.
ARTICLE 6 ANNUAL REVIEW
Section 6.1 Periodic Review.
A. The City Manager or designee shall on an annual basis and at any other time that the City Manager reasonably determines to be appropriate (but not more than once in
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17 any 12-month period), review the extent of Developer’s good faith substantial compliance with the terms and conditions of this Agreement in accordance with Government Code Section 65865.1. All City costs related to City’s review pursuant to this Section 6.1 shall be borne by Developer.
B. The annual review shall be conducted as provided herein:
(1) The City Manager shall provide thirty (30) days written notice of City’s review of Developer’s good faith substantial compliance with the terms and conditions of this Agreement pursuant to this Section 6.1. Such notice shall require Developer to demonstrate good faith substantial compliance with such terms and conditions, complete and submit to City an Annual Review Form in the form attached hereto as Exhibit C and provide such other information as may be reasonably requested by the City Manager. Such notice shall also advise Developer that the review may result in amendment or termination of this Agreement. (2) If, following his or her review of Developer’s submission, the City Manager is not satisfied that Developer has demonstrated good faith substantial compliance with the terms and conditions of this Agreement, or for any other reason, the City Manager may refer the matter along with his or her recommendation to the City Council, which shall at the first available agenda following the City Manager’s referral conduct a public hearing on Developer’s good faith substantial compliance with the terms and conditions of this Agreement. The City Council’s hearing of the matter shall be de novo.
(3) If the City Council finds and determines, based on substantial evidence in the record, that the Developer has failed to substantially comply in good faith with the terms and conditions of this Agreement, the City Council may terminate or modify this Agreement. Developer’s failure to accept modification of this Agreement as provided in this Section 6.1 shall result in termination of the Agreement. Termination of this Agreement shall not relieve Developer of any obligation to comply with the terms and conditions of any applicable zoning, specific plans, special permit, subdivision map or other land use entitlement approval, nor shall it relieve Developer of any obligation to comply with any covenants which by the terms of this Agreement survive termination.
C. A finding by the City Manager or the City Council of good faith substantial compliance by Developer with the terms and conditions of this Agreement shall conclusively determine the issue up to and including the date of such review.
D. Failure of City to conduct a periodic review as provided in this Section 6.1 shall not constitute a waiver by the City of its rights to otherwise enforce the provisions of this Agreement nor shall Developer have or assert any defense to such enforcement by reason of any such failure to conduct an annual review.
ARTICLE 7 MORTGAGEE PROTECTION
Section 7.1 Mortgagee Protection. This Agreement shall be superior and senior to any lien placed upon the Property or any portion thereof after the date of recording of this Agreement, including the lien of any deed of trust or mortgage (“Mortgage”). Notwithstanding
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18 the foregoing, no breach hereof shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but all of the terms and conditions contained in this Agreement shall be binding upon and effective against and shall run to the benefit of any person or entity, including any deed of trust beneficiary or mortgagee (“Mortgagee”), who acquires title or possession to the Property, or any portion thereof, by foreclosure, trustee’s sale, deed in lieu of foreclosure or otherwise.
Section 7.2 Mortgagee Not Obligated. Notwithstanding the provisions of Section 7.1 above, no Mortgagee shall have any obligation or duty under this Agreement to construct or complete the construction of the Project, or to guarantee such construction or completion; provided, however, that a Mortgagee shall not be entitled to devote the Property to any use except in full compliance with the Project Approvals and this Agreement nor to construct any improvements thereon or institute any uses other than those uses and improvements provided for or authorized by this Agreement and the Project Approvals.
Section 7.3 Notice of Default to Mortgagee. If City receives a notice from a Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying the address for service thereof, then City agrees to deliver to such Mortgagee, concurrently with service thereon to Developer, any notice given to Developer with respect to any claim by City that Developer has committed an event of default; and if City makes a determination of noncompliance hereunder, City shall likewise serve notice of such noncompliance on such Mortgagee concurrently with service thereon on Developer. Each Mortgagee shall have the right during the same period available to Developer to cure or remedy, or to commence to cure or remedy, the event of default claimed or the areas of noncompliance set forth in City’s notice. If a Mortgagee shall be required to obtain possession in order to cure any default, then vis-à-vis the Mortgagee, the time to cure shall be tolled so long as the Mortgagee is attempting to obtain possession, including by appointment of a receiver or foreclosure but in no event may this period exceed one hundred eighty (180) days from the City’s notice (or, if applicable, one hundred eighty (180) days following relief from any automatic stay applicable in connection with any bankruptcy proceedings affecting Developer or the Project or any restraining order or injunction issued in connection with any foreclosure proceedings initiated by a Mortgagee).
Section 7.4 No Supersedure. Nothing in this Article 7 shall be deemed to supersede or release a Mortgagee or modify a Mortgagee’s obligations under any subdivision or public improvement agreement or other obligation incurred with respect to the Project outside this Agreement, nor shall any provision of this Article 7 constitute an obligation of City to such Mortgagee, except as to the notice requirements of Section 7.3.
ARTICLE 8 AMENDMENT OF AGREEMENT AND EXISTING APPROVALS Section 8.1 Amendment of Agreement By Mutual Consent. This Agreement may be amended in writing from time to time by mutual consent of the Parties hereto or their successorsin-interest or assigns. Extension of the Term of this Agreement pursuant to Section 11.5 shall be considered Insubstantial Amendments and shall be processed under Section 8.2.
Section 8.2 Insubstantial Amendments to Agreement. Any amendment to this Agreement which, in the context of the overall Project contemplated by this Agreement, does not
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19 substantially affect (i) the Term of this Agreement (except as otherwise provided in Section 8.1), (ii) permitted uses of the Property, (iii) provisions for the reservation or dedication of land, (iv) conditions, terms, restrictions or requirements for subsequent discretionary actions, (v) the density or intensity of use of the Property or the maximum height or size of proposed buildings, (vi) monetary contributions by Developer, (vii) the nature, timing of delivery, or scope of the Private Improvements or Public Improvements, or (viii) the phasing of the Phase 1 Improvements and Phase 2 Improvements, shall be deemed an “Insubstantial Amendment” and shall not, except to the extent otherwise required by law, require notice or public hearing before the Parties may execute an amendment hereto. The City Manager shall have the authority to execute an Insubstantial Amendment or, in his or her discretion, seek approval of an Insubstantial Amendment by resolution of the City Council.
Section 8.3 Major Amendments. Any amendment to this Agreement other than an Insubstantial Amendment shall be deemed a “Major Amendment” and shall be subject to approval by the City Council by ordinance following duly noticed public hearing before the Planning Commission and City Council consistent with Government Code sections 65867, 65867.5 and 65868.
Section 8.4 Requirement for Writing. No modification, amendment, or other change to this Agreement or any provision hereof shall be effective for any purpose unless specifically set forth in a writing that refers expressly to this Agreement and is signed by duly authorized representatives of both Parties or their successors. A copy of any change shall be provided to the City Council within thirty (30) days of its execution.
Section 8.5 Amendments to Development Agreement Statute. This Agreement has been entered into in reliance upon the provisions of the Development Agreement Statute as those provisions existed as of the date of execution of this Agreement. No amendment or addition to those provisions that would materially affect the interpretation or enforceability of this Agreement shall be applicable to this Agreement, unless such amendment or addition is specifically required by the California State Legislature, or is mandated by a court of competent jurisdiction. If such amendment or change is permissive (as opposed to mandatory), this Agreement shall not be affected by same unless the parties mutually agree in writing to amend this Agreement to permit such applicability.
ARTICLE 9 COOPERATION AND IMPLEMENTATION
Section 9.1 Subsequent Project Approvals. Certain subsequent land use approvals, entitlements, and permits other than the Existing Approvals, will be necessary or desirable for implementation of the Project (“Subsequent Project Approvals”). The Subsequent Project Approvals may include, without limitation, the following: amendments of the Existing Approvals, grading permits, building permits, sewer and water connection permits, certificates of occupancy, final maps, lot line adjustments, parcel maps and/or subdivision maps, and any amendments to, or repealing of, any of the foregoing. Except as otherwise expressly provided herein, the City shall not impose requirements or conditions upon Project development and construction that are inconsistent with the Existing Approvals and the terms and conditions of this Agreement. Further, except as expressly provided herein, the City shall not exercise discretion in determining whether or how to grant Subsequent Project Approvals in a manner that
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20 would prevent development of the Project for the uses and to the maximum intensity of development set forth in the Existing Approvals.
Section 9.2 Processing Applications for Subsequent Project Approvals.
A. Developer acknowledges that City cannot begin processing applications for Subsequent Project Approvals until Developer submits complete applications on a timely basis. Developer shall use its best efforts to (i) provide to City in a timely manner any and all documents, applications, plans, and other information necessary for City to carry out its obligations hereunder; and (ii) cause Developer’s planners, engineers, and all other consultants to provide to City in a timely manner all such documents, applications, plans and other materials required under Applicable Law. It is the express intent of Developer and City to cooperate and diligently work to obtain any and all Subsequent Project Approvals.
B. Upon submission by Developer of all appropriate applications and Processing Fees for any pending Subsequent Project Approval, City shall, to the full extent allowed by Applicable Law, promptly and diligently, subject to City ordinances, policies and procedures regarding hiring and contracting, commence and complete all steps necessary to act on Developer’s currently pending Subsequent Project Approval applications including:
(i) providing at Developer’s expense and subject to Developer’s request and prior approval, reasonable overtime staff assistance, additional staff and/or staff consultants for concurrent, expedited planning and processing of each pending Subsequent Project Approval application; (ii) if legally required, providing notice and holding public hearings; and (iii) acting on any such pending Subsequent Project Approval application.
Section 9.3 Other Agency Subsequent Project Approvals; Authority of City. City shall cooperate with Developer, to the extent appropriate and as permitted by law, in Developer’s efforts to obtain, as may be required, Other Agency Subsequent Project Approvals.
Notwithstanding the issuance to Developer of Other Agency Subsequent Project Approvals, Developer agrees that City shall have the right to review, modify, approve and/or reject any and all submissions subject to the Other Agency Subsequent Project Approvals which, but for the authority of the other governmental or quasi-governmental entities issuing the Other Agency Subsequent Project Approvals, would otherwise require City approval. Developer agrees that City may review, modify, approve and/or reject any such materials or applications to ensure consistency with this Agreement and the Project Approvals and Developer shall incorporate any and all changes required by City prior to submitting such materials and applications to the other governmental or quasi-governmental entities for review and/or approval.
Section 9.4 Cooperation in the Event of Legal Challenge. City and Developer shall cooperate in the defense of any court action or proceeding instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement or the Project Approvals (“Litigation Challenge”), and the Parties shall keep each other informed of all developments relating to such defense, subject only to confidentiality requirements that may prevent the communication of such information. To the extent Developer desires to contest or defend such Litigation Challenge, (i) Developer shall take the lead role defending such Litigation Challenge and may, in its sole discretion, elect to be represented by the legal counsel of its choice; (ii) City may, in its sole discretion, elect to be separately represented by the legal counsel
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21 of its choice in any such action or proceeding, with the reasonable costs of such representation to be paid by Developer; (iii) Developer shall reimburse City, within thirty (30) business days following City’s written demand therefor, which may be made from time to time during the course of such litigation, all reasonable out of pocket costs incurred by City in connection with the Litigation Challenge; and (iv) Developer shall indemnify, defend, and hold harmless City Parties from and against any damages, attorneys’ fees or cost awards, including attorneys’ fees awarded under Code of Civil Procedure section 1021.5, assessed or awarded against City by way of judgment, settlement, or stipulation. Any proposed settlement of a Litigation Challenge shall be subject to City’s approval not to be unreasonably withheld, conditioned or delayed. If the terms of the proposed settlement would constitute an amendment or modification of this Agreement or any Project Approvals, the settlement shall not become effective unless such amendment or modification is approved by City in accordance with Applicable Law, and City reserves its full legislative discretion with respect thereto. If Developer opts not to contest or defend such Litigation Challenge, City shall have no obligation to do so.
ARTICLE 10 ASSIGNMENT, TRANSFER AND NOTICE
Section 10.1 Assignment.
A. The qualifications and identity of Developer are of particular concern to City. It is because of those unique qualifications and identity that City has entered into this Agreement with Developer. No voluntary or involuntary successor in interest of Developer shall acquire any rights or powers under this Agreement, except as expressly set forth herein.
B. Except as otherwise provided below with respect to a Permitted Transfer in connection with the conveyance by City to Developer of Parcel A, Lot 1, Lot 2, Lot 3, Townhome Lots, Lot 14 or Lot 15 in accordance with the terms of the DDA, Developer shall not assign or transfer this Agreement or any interest therein without the prior written approval of City. Developer shall notify City of any proposed transfer or assignment promptly upon commencement of negotiations in connection with such event (or at such later time as such negotiations are not confidential in nature) and in any event at least sixty (60) days prior to completing any transfer or assignment. City shall approve or disapprove any such proposed transfer or assignment within sixty (60) days after receipt of a written request for approval thereof from Developer, together with such documentation as may be reasonably required by City. The documentation to be provided by Developer to City may include all financial and other documentation which City determines is reasonably necessary to evaluate the proposed transaction and the proposed assignee’s/transferee’s experience, reputation and qualifications.
C. Prior to consideration by City of any proposed assignment, including a Permitted Transfer, Developer shall deliver to City the form of a proposed written assignment and assumption agreement in which the assignee expressly agrees to assume all rights and obligations of Developer under this Agreement arising after the effective date of the assignment with respect to the parcel or parcels or other portion of the Property transferred or assigned, and in which the assignee agrees to assume all performance and obligations of Developer arising after the effective date of the assignment applicable to such parcel or parcels or other portion of the Property. The assignment and assumption agreement shall be in substantially the same form attached hereto as Exhibit D. City shall not unreasonably withhold its approval of a transfer or
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22 assignment to a proposed transferee/assignee who, in the reasonable opinion of City, is financially capable and has the development and operational qualifications and experience to perform the duties and obligations of Developer hereunder. No later than the date the assignment becomes effective, Developer shall deliver to City a fully executed counterpart of the assignment and assumption agreement.
D. Any of the following transfers or assignments shall be a “Permitted Transfer”:
(1) Any assignment or transfer to an Affiliate of Developer; or (2) A transfer which, when combined with any and all previous or simultaneous transfers, represents less than fifty percent (50%) of the equity or beneficial interest of Developer, provided such transfer does not cause a material change in the rights to manage and control Developer.
Developer shall give at least sixty (60) days prior written notice to City of a Permitted Transfer. In addition, City shall be entitled to review such documentation as it may reasonably require to establish that the proposed assignment or transfer is a Permitted Transfer.
E. Any assignee under this Section 10.1 (“Assignee”) shall succeed to the rights, duties and obligations of Developer only with respect to the parcel or parcels or other portion of the Property so transferred or assigned, and Developer shall continue to be obligated under this Agreement with respect to all portions of the Property retained by Developer.
ARTICLE 11 DEFAULT; REMEDIES; TERMINATION
Section 11.1 Breach. Subject to extensions of time under Section 11.5 or by mutual consent in writing, the failure or delay by either Party to perform any term or provision of this Agreement shall constitute a breach of this Agreement. In the event of alleged breach of this Agreement, the Party alleging such breach shall give the other Party notice in writing specifying the nature of the breach and the manner in which said breach may be satisfactorily cured, and the Party in breach shall have sixty (60) days following such notice (“Cure Period”) to cure such breach, except that in the event of a breach of an obligation to make a payment, the Party in breach shall have ten (10) days to cure the breach after receipt of notice thereof. If the breach is of a type that cannot be cured within sixty (60) days, the breaching Party shall, within a thirty (30) day period following notice to the non-breaching Party, notify the non-breaching Party of the time it will take to cure such breach which shall be a reasonable period under the circumstances (“Extended Cure Period”); commence to cure such breach within said 30-day period; and be proceeding diligently to cure such breach. Subject to the provisions of Section
11.5, the Extended Cure Period shall in no event exceed one hundred eighty (180) days unless otherwise agreed by the Parties. During the Cure Period or Extended Cure Period, the Party charged shall not be considered in Default for purposes of termination or institution of legal proceedings; but the City’s right to refuse to issue a permit or Subsequent Project Approval, under Section 11.3, shall not be limited by this provision. The failure of any Party to give notice of any breach shall not be deemed to be a waiver of that Party’s right to allege any other breach at any other time.
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23 Section 11.2 Default. If the breaching Party has not cured such breach within the Cure Period or the Extended Cure Period, if any, such Party shall be in default (“Default”), and the non-breaching Party, at its option, may terminate this Agreement, institute legal proceedings pursuant to this Agreement and shall have such remedies as are set forth in Section 11.4 below.
Section 11.3 Withholding of Permits. In the event of a Default by Developer, or following notice of breach to Developer and during the Cure Period or Extended Cure Period, City shall have the right to refuse to issue any permit or other Subsequent Project Approvals to which Developer would otherwise have been entitled pursuant to this Agreement. This provision is in addition to and shall not limit any actions that City may take to enforce the conditions of the Project Approvals.
Section 11.4 Remedies.
A. In the event of a Default by City or Developer, the non-defaulting Party shall have the right to terminate this Agreement upon giving notice of intent to terminate pursuant to Government Code Section 65868 and regulations of City implementing such section.
Following notice of intent to terminate, the matter shall be scheduled for consideration and review in the manner set forth in Government Code Section 65867 and City regulations implementing said section. Following consideration of the evidence presented in said review before the City Council, either Party alleging Default by the other Party may give written notice of termination of this Agreement to the other Party. Termination of this Agreement shall be subject to the provisions of Section 11.7 hereof.
B. If City issues a Project Approval pursuant to this Agreement in reliance upon a specified condition being satisfied by Developer in the future, and if Developer then fails to satisfy such condition, City shall be entitled to specific performance for the purpose of causing Developer to satisfy such condition.
C. In addition to any other rights or remedies, either Party may institute legal action to cure, correct or remedy any Default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation thereof, or to obtain any other remedies consistent with the purpose of this Agreement. Any such legal action shall be brought in the Superior Court for Alameda County, California, or in the Federal District Court for the Northern District of the State of California. Neither Party shall have the right to recover any consequential, punitive or special damages.
Section 11.5 Enforced Delay; Extension of Time of Performance. Subject to the limitations set forth below, performance by either Party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation; unusually severe weather; acts or omissions of the other Party; or acts or failures to act of any other public or governmental agency or entity (other than the acts or failures to act of City which shall not excuse performance by City). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause (but in any event shall not
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24 exceed a cumulative total of two (2) years), if notice by the Party claiming such extension is sent to the other Party within thirty (30) days of the commencement of the cause. The Parties agree that the commencement of any litigation concerning this Agreement, the Ordinance approving this Agreement or any of the Existing Approvals shall constitute cause for an extension of time for performance of obligations under this Agreement up to a maximum of two (2) years, and that the Term of this Agreement shall be automatically extended for the period such litigation is pending (subject, however, to the 2 year maximum extension).
Section 11.6 Resolution of Disputes. With regard to any dispute involving the Project, the resolution of which is not provided for by this Agreement or Applicable Law, Developer shall, at City’s request, meet with designated representatives of City promptly following City’s request. The parties to any such meetings shall attempt in good faith to resolve any such disputes. Nothing in this Section 11.6 shall in any way be interpreted as requiring that Developer and City and/or City’s designee reach agreement with regard to those matters being addressed, nor shall the outcome of these meetings be binding in any way on City or Developer unless expressly agreed to by the parties to such meetings.
Section 11.7 Surviving Provisions. Following the termination of this Agreement, neither Party shall have any further rights or obligations hereunder, except for those obligations of Developer set forth in Section 9.8 (Cooperation in the Event of Legal Challenge) and Section
12.1 (Indemnity and Hold Harmless).
ARTICLE 12 INDEMNITY AND INSURANCE
Section 12.1 Indemnity and Hold Harmless. Developer shall indemnify, defend (with counsel reasonably acceptable to City) and hold harmless City Parties from and against any and all Claims, including Claims for any bodily injury, death, or property damage, resulting directly or indirectly from the development or construction of the Project by or on behalf of Developer, and/or from any other acts or omissions of Developer under this Agreement, whether such acts or omissions are by Developer or any of Developer’s contractors, subcontractors, agents or employees, except to the extent such Claims arise from the sole active negligence or willful misconduct of City or City Parties.
Section 12.2 Insurance Requirements. Developer shall procure and maintain, or cause its contractor(s) to procure and maintain, once construction of Phase 1 Improvements have commenced and for the duration of this Agreement, a commercial general liability policy in an amount not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) combined single limit, including contractual liability, a comprehensive automobile liability policy in the amount of One Million Dollars ($1,000,000), combined single limit, and an excess liability policy in an amount not less than Five Million Dollars ($5,000,000). Such policy or policies shall be written on an occurrence form, so long as such form of policy is then commonly available in the commercial insurance marketplace. Developers’ insurance shall be placed with insurers with a current A.M. Best’s rating of no less than A-:VII or a rating otherwise approved by the City in its reasonable discretion. Developer shall furnish at City’s request appropriate certificate(s) of insurance evidencing the insurance coverage required by City hereunder, and the City Parties shall be named as additional insured parties under the policies required hereunder. Coverage provided hereunder by Developer shall be primary
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25 insurance and shall not be contributing with any insurance, self-insurance or joint self-insurance maintained by City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of City.
Section 12.3 Workers’ Compensation Insurance. Developer shall also provide, or cause to be provided, Workers’ Compensation insurance as required by law, covering employees of Developer and employees of any contractor, subcontractor, agent or representative of Developer.
Section 12.4 No Supersedure. The provisions of this Article 12 relating to indemnity and insurance shall not supersede and shall be in addition to any requirements contained in any Project Approval or any other land use entitlement pertaining to the Property; provided, however, that such provisions of this Article 12 or any such other Project Approval or any other land use entitlement pertaining to the Property shall not supersede or replace in any way the indemnity and insurance requirements set forth in any lease or easement agreement provided for in or to be entered into pursuant to the Public Improvements Funding Agreement.
ARTICLE 13 MISCELLANEOUS PROVISIONS
Section 13.1 Incorporation of Recitals, Exhibits and Introductory Paragraph. The Recitals contained in this Agreement, the introductory paragraph preceding the Recitals and the Exhibits attached hereto are hereby incorporated into this Agreement as if fully set forth herein.
Section 13.2 Severability. If any term or provision of this Agreement, or the application of any term or provision of this Agreement to a particular situation, is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining terms and provisions of this Agreement, or the application of this Agreement to other situations, shall continue in full force and effect unless amended or modified by mutual consent of the Parties.
Notwithstanding the foregoing, if any material provision of this Agreement, or the application of such provision to a particular situation, is held to be invalid, void or unenforceable, the Party adversely affected may terminate this Agreement by providing written notice of such termination to the other Party.
Section 13.3 Construction. Each reference herein to this Agreement or any of the Existing Approvals or Subsequent Project Approvals shall be deemed to refer to the Agreement, Existing Approval or Subsequent Project Approval as it may be amended from time to time, whether or not the particular reference refers to such possible amendment. Section headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Agreement. This Agreement has been reviewed and revised by legal counsel for both City and Developer, and no presumption or rule that ambiguities shall be construed against the drafting party shall apply to the interpretation or enforcement of this Agreement. Unless the context clearly requires otherwise, (i) the plural and singular numbers shall each be deemed to include the other; (ii) the masculine, feminine, and neuter genders shall each be deemed to include the others; (iii) “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (iv) “or” is not exclusive; (v) “include,” “includes” and “including” are not limiting and shall be construed as if followed by the words “without limitation,” and (vi) “days” means calendar days unless specifically provided otherwise.
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26 Section 13.4 Covenants Running with the Land. Except as otherwise more specifically provided in this Agreement, this Agreement and all of its provisions, rights, powers, standards, terms, covenants and obligations, shall be binding upon the Parties and their respective successors (by merger, consolidation, or otherwise) and assigns, and all other persons or entities acquiring the Property, or any interest therein, and shall inure to the benefit of the Parties and their respective successors and assigns, as provided in Government Code section 65868.5.
Section 13.5 Notices. Any notice or communication required hereunder between City or Developer must be in writing, and may be given either personally, by registered or certified mail (return receipt requested), or by Federal Express or other similar courier providing overnight delivery. If personally delivered, a notice shall be deemed to have been given when delivered to the party to whom it is addressed. If given by registered or certified mail, such notice or communication shall be deemed to have been given upon actual receipt (or refusal to accept delivery) by any of the addressees designated below as the party to whom notices are to be sent. If given by Federal Express or similar courier, a notice or communication shall be deemed to have been given on the date delivered as shown on a receipt issued by the courier.
Any party hereto may at any time, by giving ten (10) days written notice to the other party hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below:
To City: City of Healdsburg
401 Grove Street
Healdsburg, California 95448
Attention: City Manager
With a copy to: Burke, Williams & Sorensen, LLP
1 California Street, Suite 3050
San Francisco, California 94111-5432
Attention: Samantha Zutler, City
Attorney
To Developer: Freebird Development Company, LLC
1111 Broadway
Oakland, California 94607
Attention: Robin Zimbler
With a copy to: Miller Starr Regalia
1331 N. California Blvd.
Walnut Creek, CA 94596
Attn: Bryan Wenter
Section 13.6 Counterparts and Exhibits; Entire Agreement. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original. This Agreement, together with the Existing Approvals and attached Exhibits, constitutes the final and
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27 exclusive understanding and agreement of the Parties and supersedes all negotiations or previous agreements of the Parties with respect to all or any part of the subject matter hereof.
Section 13.7 Recordation of Agreement. Pursuant to California Government Code Section 65868.5, no later than ten (10) days after City enters into this Agreement, the City Clerk shall record an executed copy of this Agreement in the Official Records of the County of Alameda.
Section 13.8 No Joint Venture or Partnership. It is specifically understood and agreed to by and between the Parties hereto that: (i) the subject development is a private development; (ii) City has no interest or responsibilities for, or duty to, third parties concerning any public improvements until such time, and only until such time, that City accepts the same pursuant to the provisions of this Agreement or in connection with the various Existing Approvals or Subsequent Project Approvals; (iii) Developer shall have full power over and exclusive control of the Project herein described, subject only to the limitations and obligations of Developer under this Agreement, Existing Approvals, Subsequent Project Approvals, and Applicable Law; and (iv) City and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between City and Developer and agree that nothing contained herein or in any document executed in connection herewith shall be construed as creating any such relationship between City and Developer.
Section 13.9 Waivers. Notwithstanding any other provision in this Agreement, any failures or delays by any Party in asserting any of its rights and remedies under this Agreement shall not operate as a waiver of any such rights or remedies, or deprive any such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. A Party may specifically and expressly waive in writing any condition or breach of this Agreement by the other Party, but no such waiver shall constitute a further or continuing waiver of any preceding or succeeding breach of the same or any other provision. Consent by one Party to any act by another Party shall not be deemed to imply consent or waiver of the necessity of obtaining such consent for the same or similar acts in the future.
Section 13.10 California Law; Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to choice of law provisions. The exclusive venue for any disputes or legal actions shall be the Superior Court of California in and for the County of Sonoma or the US District Court, Northern California District.
Section 13.11 City Approvals and Actions. Whenever reference is made herein to an action or approval to be undertaken by City, the City Manager or his or her designee is authorized to act on behalf of City, unless specifically provided otherwise or the context requires otherwise.
Section 13.12 Signatures. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of Developer and City.
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28 IN WITNESS WHEREOF, this Agreement has been entered into by and between Developer and City as of the day and year first above written. [REMAINDER OF PAGE LEFT BLANK]
CITY:
CITY OF HEALDSBURG, a California
municipal corporation
By:
Jeffrey Kay, City Manager
APPROVED AS TO FORM:
By:
Samantha Zutler, City Attorney
ATTEST:
By:
Raina Allan, City Clerk
DEVELOPER:
FREEBIRD DEVELOPMENT COMPANY,
LLC, a California limited liability company
By:
Name:
Its:
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Packet Pg. 196 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
Exhibit A
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
THE PROPERTY REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF HEALDSBURG, COUNTY OF SONOMA, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE-A:
Lying within the City of Healdsburg, County of Sonoma, State of California, and being pontoons of Parcels 5, 6 and 11 of the Lands of Sonoma Luxury Resort LLC as shown on that Final Map titled Saggio Hills, filed for record, May 23, 2018 in Bock 795 of Maps at pages 31-40, Sonoma County Records, and being more particularly described as follows:
Beginning at a 1/2” iron pipe tagged PLS 5143 marking the northwest corner of Parcel 5 as shown on said map of Saggio Hills; thence along the northerly, easterly and southerly line of Parcel 5, on a curve to the right, from a tangent that bears North 20°32‘ 11” West, radius of 20.00 feet, length of 33.08 feet, central angle of 94°46’43”; thence on a compound a curve to the right, radius of 156.00 feet, length of
54.53 feet, central angle of 20°01 ’42”; thence on a reverse curve to the left radius of 228.00 feet, length of 330.47 feet, central angle of 83°02’47”; thence North 11°09’l5” East, 69.68 feet; thence South 12°48’06” East, 261.00 feet; thence South 46°32‘l4” West, 94.60 feet; thence South 14°18'21" West,
73.62 feet; thence South 22°09’28” East, 408.32;thence on a curve to the right from a tangent that bears South 41°31’14" West, radius of 1750.00 feet, length of 586.91 feet, central angle of 19°12’56”; thence on a reverse curve to the left, radius of 150.00 feet, length of 71.25 feet, central angle of 27°12’56”; thence a curve to the right, radius of 450.00 feet, length of 179.87 feet, central angle of 22° 54‘08" to the southwest corner of said Parcel 5; thence along the westerly line of Parcel 5, North 0°29’37” East, 30.60 feet to the southerly line of said Parcel 11; thence along the common line of said Parcels 5 and 11, on a curve to the left, from a tangent that bears North 54°06 '42“ East, a radius of 425.00 feet, a length of 376.97, central angle of 50°49’15"; thence leaving said common line, on a compound curve to the left, a radius of 325.00, length of 179.02 feet, central angle of 31°33’38"; thence on a reverse curve to the right, radius of 225.00 feet, length of 222.62 feet, central angle of 56°41’24”; thence North 28°25’ 12” East, 70.81 feet; thence on a curve to the left, radius of 275.00, length of 235.31 feet, central angle of 49°01 ’35” to the Point of Beginning.
The parcel above is pursuant to Lot Line Adjustment Application File No. LLA 2021-04 on file in the Office of the City of Healdsburg Planning Department. It is the express intent of the signatories contained in the Grant Deed recorded 9/30/2022 recording no. 2022063599 extinguishes any underlying parcels or portions of parcels.
Basis of bearings: Final Map of Saggio Hills, Book 795 of Maps, Pages 31—40, Sonoma County Records. Being portions of APN 091-310-005, 006, 011.
Containing 7.43 acres.
PARCEL ONE-B:
An Emergency Vehicle Access Easement as described in the Grant of Easement executed by the County of Sonoma, a political subdivision to Sonoma Luxury Resort, LLC, recorded October 29, 2008 as Instrument No. 2008-98282, of Official Records.
PARCEL TWO-A:
Lying within the City of Healdsburg, County of Sonorna, State of California, and being a portion of Parcel 6 of the Lands of Sonoma Luxury Resort LLC as shown on that Final Map titled Saggio Hills, filed for record, May 23, 2018, in Book 795 of Maps at pages 31-40, Sonoma County Records, and being more particularly described as follows:
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Packet Pg. 197 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
Exhibit A
Beginning at a 1/2" iron pipe tagged PLS 5143 marking the northwest corner of Parcel 6 as shown on said map of Saggio Hills; thence along the northeasterly line of said Parcel 6, on a curve to the right, from a tangent that bears South 78°37’43" East, radius of 275.00 feet, length of 68.41 feet, central angle of 14°15’ 13"; thence on a curve to the left, radius of 1025.00 feet, length of 79.06 feet, central angle of 4°25’09”; thence South 68°47'39" East, 163.00 feet; thence on a curve to the right, radius of 225.00 feet, length of 298.24 feet, central angle of 75°56’50”; thence leaving said northeasterly line of said Parcel 6, continuing along said curve to the right, radius of 225.00, length of 83.52 feet, central angle of 21°16’01"; thence South 28°25’12" West, 70.81 feet; thence on a curve to the left, radius of 275.00 feet, length of 272.09 feet, central angle of 56°41'24"; thence on a curve to the right, radius of 275.00 feet, length of 151.48 feet, central angle of 31°33'38“ to the southeasterly line of said Parcel 6; thence along the southeasterly line of said Parcel 6, on a compound curve to the right, radius of 375.00 feet, length of 294.27 feet, central angle of 44°57’42" to the westerly line of said Parcel 6; thence along said westerly line North 0°29’37” East, 441.55 feet; thence South 89°36 ’07” West, 132.85 feet; thence North 0°37’45” West, 452.38 feet; thence North 54°09'32" West, 234.08 feet; thence North 16°45 ‘34” West, 48.44 feet; thence North 36°05’09” East, 99.18 feet to the Point of Beginning.
The parcel above is pursuant to Lot Line Adjustment Application File No. LLA 2021-04 on file in the Office of the City of Healdsburg Planning Department. It is the express intent of the signatories contained in the Grant Deed recorded 9/30/2022 recording no. 2022063600 extinguishes any underlying parcels or portions of parcels.
Basis of bearings: Final Map of Saggio Hills, Book 795 of Maps, Pages 31—40, Sonoma County Records. Being a portion of APN 091-310-006.
Containing 5.01 acres.
PARCEL TWO-B:
An Emergency Vehicle Access Easement as described in the Grant of Easement executed by the County of Sonoma, a political subdivision to Sonoma Luxury Resort, LLC, recorded October 29, 2008 as Instrument No. 2008-98282, of Official Records.
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Packet Pg. 198 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857
-7768-0689 v9
Exhibit B
EXHIBIT B
SITE MAP OF PROPERTY
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Packet Pg. 199 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
Exhibit C
EXHIBIT C
ANNUAL REVIEW FORM
This Annual Review Evaluation Form is submitted to the City of Healdsburg (“City”) by Freebird Development Company, LLC, a California limited liability company (“Developer”), pursuant to the requirements of California Government Code section 65865.1 regarding Developer’s good faith substantial compliance with its obligations under the Development Agreement between the City and Developer having an Effective Date of ______________ (“Development Agreement”). All terms not otherwise defined herein shall have the meanings assigned to them in the Development Agreement:
Annual Review Period: ______________ to ______________.
Specify whether Impact fees, Processing fees, Connection fees and/or other fees due and payable have been paid during this annual review period.
Describe whether other applicable Development Agreement obligations were completed during this annual review period and, if so, specifically identify such obligations.
Specify whether Developer has assigned the Development Agreement, in whole or in part, or otherwise conveyed the Property or any portion thereof during this annual review period.
The undersigned representative confirms that Developer is:
______In good faith substantial compliance with its obligations under the Development Agreement for this annual review period.
______Not in good faith substantial compliance with its obligations under the Development Agreement for this annual review period, in response to which Developer is taking the actions set forth in the attachment hereto.
IN WITNESS WHEREOF, Developer has executed this Annual Review Form as of this ____ day of ______________, 20__.
DEVELOPER:
FREEBIRD DEVELOPMENT COMPANY,
LLC, a California limited liability company
By:
Name:
Its:
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Packet Pg. 200 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
Exhibit D
EXHIBIT D
FORM ASSIGNMENT AND ASSUMPTION AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
Attention: City Clerk
)
)
)
)
)
)
)
(Space Above This Line for Recorder’s Use Only)
Exempt from Recording Fee per Government Code §27383
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (“Assignment
Agreement”) is entered into as of the ____ day of __________, 20__, by and among Freebird Development Company, LLC, a California limited liability company (“Assignor”), ______________________, a ___________________ (“Assignee”), and the City of Healdsburg, a California municipal corporation (“City”).
R E C I T A L S
A. Assignor has entered into a Development Agreement with City effective ______________ (Recorder’s Document No. ________) (“Development Agreement”), to facilitate the development and use of certain real property consisting of approximately ______________ acres within the City of Healdsburg, County of Sonoma, State of California, depicted and legally described in Attachment 1 attached hereto and incorporated herein (“Property). Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to such terms in the Development Agreement.
B. Assignor desires to transfer its fee interest in the [Property] [Townhome Lots or Townhome Lots and Lot 15] [Parcel A, Lot 1, Lot 2, Lot 3, Lot 14 and Lot 15 or Parcel A, Lot 1, Lot 2, Lot 3 and Lot 14] to Assignee concurrently with execution of this Assignment Agreement and Assignee desires to so acquire such interest in the [Property] [Townhome Lots or Townhome Lots and Lot 15] [Parcel A, Lot 1, Lot 2, Lot 3, Lot 14 and Lot 15 or Parcel A, Lot 1, Lot 2, Lot 3 and Lot 14] from Assignor.
C. Article 10 of the Development Agreement provides that Assignor may assign its rights and obligations under the Development Agreement to another party, provided that the Assignor shall have provided to City at least sixty (60) days prior written notice and provided that the assignor and the assignee document the assignment in an agreement substantially in the form of this Assignment Agreement.
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Packet Pg. 201 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
Exhibit D
D. Assignor has provided the required written notice to City of its intent to enter into an assignment and assumption agreement as required by Section 10.1 of the Development Agreement.
E. Assignor desires to assign to Assignee and Assignee desires to assume all rights and obligations of Assignor under the Development Agreement. Upon execution of this Assignment Agreement and transfer to Assignee of legal title to the [Property] [Townhome Lots or Townhome Lots and Lot 15] [Parcel A, Lot 1, Lot 2, Lot 3, Lot 14 and Lot 15 or Parcel A, Lot 1, Lot 2, Lot 3 and Lot 14], Assignor desires to be released from any and all obligations under the Development Agreement with respect to the [Property] [Townhome Lots or Townhome Lots and Lot 15] [Parcel A, Lot 1, Lot 2, Lot 3, Lot 14 and Lot 15 or Parcel A, Lot 1, Lot 2, Lot 3 and Lot 14].
A G R E E M E N T
NOW, THEREFORE, Assignor, Assignee and City hereby agree as follows:
1. Assignment by Assignor. Assignor hereby assigns, transfers and grants to Assignee, and its successors and assigns, all of Assignor’s rights, title and interest and obligations, duties, responsibilities, conditions and restrictions under the Development Agreement with respect to the [Property] [Townhome Lots or Townhome Lots and Lot 15] [Parcel A, Lot 1, Lot 2, Lot 3, Lot 14 and Lot 15 or Parcel A, Lot 1, Lot 2, Lot 3 and Lot 14] (collectively, “Rights and Obligations”).
2. Acceptance and Assumption by Assignee. Assignee, for itself and its successors and assigns, hereby accepts such assignment and assumes all such Rights and Obligations, accruing on or after the Assignment Agreement Effective Date (defined in Section 16 below).
Assignee agrees, expressly for the benefit of City, to comply with, perform and execute all of the Rights and Obligations of Developer with respect to the [Property] [Townhome Lots or Townhome Lots and Lot 15] [Parcel A, Lot 1, Lot 2, Lot 3, Lot 14 and Lot 15 or Parcel A, Lot 1, Lot 2, Lot 3 and Lot 14] arising on or after the Effective Date from or under the Development Agreement.
3. Release of Assignor. Assignee and City hereby fully release Assignor from all Rights and Obligations. Both Assignor and Assignee acknowledge that this Assignment Agreement is intended to fully assign all of Assignor’s Rights and Obligations to Assignee, and it is expressly understood that Assignor shall not retain any Rights and Obligations whatsoever with respect to the [Property] [Townhome Lots or Townhome Lots and Lot 15] [Parcel A, Lot 1, Lot 2, Lot 3, Lot 14 and Lot 15 or Parcel A, Lot 1, Lot 2, Lot 3 and Lot 14].
4. Substitution of Assignor. Assignee hereafter shall be substituted for and replace Assignor in the Development Agreement with respect to the [Property] [Townhome Lots or Townhome Lots and Lot 15] [Parcel A, Lot 1, Lot 2, Lot 3, Lot 14 and Lot 15 or Parcel A, Lot 1, Lot 2, Lot 3 and Lot 14]. Whenever the term “Developer” appears in the Development Agreement, it shall hereafter mean Assignee.
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Packet Pg. 202 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
Exhibit D
5. Assignor and Assignee Agreements, Indemnifications and Waivers. a. Assignee represents and warrants to City as follows:
(i) Assignee is a ____________________ duly formed within and in good standing under the laws of the State of ________________. The copies of the documents evidencing the formation of Assignee, which have been delivered to City, are true and complete copies of the originals, as amended to the date of this Assignment Agreement. Assignee has full right, power and lawful authority to undertake all obligations as provided herein and the execution, performance and delivery of this Assignment Agreement by Assignee has been fully authorized by all requisite actions on the part of Assignee. (ii) Assignee’s execution, delivery and performance of its obligations under this Assignment Agreement will not constitute a default or a breach under any contract, agreement or order to which Assignee is a party or by which it is bound. (iii) Assignee has not (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Assignee’s creditors, (iii) suffered the appointment of a receiver to take possession of all, or substantially all, of Assignee’s assets, (iv) suffered the attachment or other judicial seizure of all, or substantially all, of Assignee’s assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally.
(iv) As of the Effective Date of this Assignment Agreement, Assignee will own fee simple title to the [Property] [Townhome Lots or Townhome Lots and Lot 15] [Parcel A, Lot 1, Lot 2, Lot 3, Lot 14 and Lot 15 or Parcel A, Lot 1, Lot 2, Lot 3 and Lot 14]. b. Assignor and Assignee hereby acknowledge and agree that the City has not made, and will not make, any representation or warranty that the assignment and assumption of the Development Agreement provided for hereunder will have any particular tax implications for Assignor or Assignee.
c. Assignor and Assignee each hereby waives and releases and each hereby agrees to indemnify and hold City harmless from any and all damages, liabilities, causes of action, claims or potential claims against City (including reasonable attorneys’ fees and costs) arising out of this Assignment Agreement or resulting from the assignment and assumption of the Rights and Obligations.
d. Assignor acknowledges and agrees that the Rights and Obligations have been fully assigned to Assignee by this Assignment Agreement and, accordingly, that Assignee shall have the exclusive right to assert any claims against City with respect to such Rights and Obligations. Accordingly, without limiting any claims of Assignee under the Development Agreement, Assignor hereby waives any claims or potential claims by Assignor against City to the extent arising solely out of the Rights and Obligations.
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Packet Pg. 203 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
Exhibit D
6. Development Agreement in Full Force and Effect. Except as specifically provided herein with respect to the assignment, all the terms, covenants, conditions and provisions of the Development Agreement are hereby ratified and shall remain in full force and effect.
7. Recording. Assignor shall cause this Assignment Agreement to be recorded in the Official Records of Sonoma County, California, and shall promptly provide conformed copies of the recorded Assignment Agreement to Assignee and City.
8. Successors and Assigns. Subject to the restrictions on transfer set forth in the Development Agreement, all of the terms, covenants, conditions and provisions of this Assignment Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns, pursuant to Section 13.4 of the Development Agreement.
9. Assignee Address for Notices. The address of Assignee for the purpose of notices, demands and communications under Section 13.5 of the Development Agreement shall be:
_______________________________
_______________________________
_______________________________
_______________________________
Attention: ______________________
Telephone: _____________________
Facsimile: ______________________
With a copy to: _______________________________
_______________________________
_______________________________
_______________________________
Attention: ______________________
Telephone: _____________________
Facsimile: ______________________
10. Applicable Law/Venue. This Assignment Agreement shall be construed and enforced in accordance with the laws of the State of California, without reference to its choice of law provisions. Any legal actions under this Assignment Agreement shall be brought only in the Superior Court of the County of Sonoma, State of California or in the Federal District Court for the Northern District of the State of California.
11. Interpretation. All parties have been represented by counsel in the preparation and negotiation of this Assignment Agreement, and this Assignment Agreement shall be construed according to the fair meaning of its language. The rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Assignment Agreement. Unless the context clearly requires otherwise: (a) the plural and singular numbers shall each be deemed to include the other; (b) the masculine,
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Packet Pg. 204 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
Exhibit D
feminine, and neuter genders shall each be deemed to include the others; (c) “shall,” “will,” or “agrees” are mandatory, and “may” is permissive; (d) “or” is not exclusive; and (e) “includes” and “including” are not limiting.
12. Headings. Section headings in this Assignment Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants or conditions of this Assignment Agreement.
13. Severability. Except as otherwise provided herein, if any provision(s) of this Assignment Agreement is (are) held invalid, the remainder of this Assignment Agreement shall not be affected, except as necessarily required by the invalid provisions, and shall remain in full force and effect unless amended or modified by mutual consent of the parties.
14. Counterparts. This Assignment Agreement may be executed in one or more counterparts, each of which shall be deemed to constitute an original, but all of which, when taken together, shall constitute one and the same instrument, with the same effect as if all of the parties to this Assignment Agreement had executed the same counterpart.
15. City Consent. City is executing this Assignment Agreement for the limited purpose of consenting to the assignment and assumption and clarifying that there is privity of contract between City on the one hand, and Assignee on the other, with respect to the Development Agreement.
16. Effective Date. The Effective Date of this Assignment Agreement shall be the date upon which Assignee obtains fee title to the Property and Assignor delivers evidence of the transfer to City (“Assignment Agreement Effective Date”). For the purposes of this Section, the evidence of transfer shall consist of a duly recorded deed, and title report. [SIGNATURES FOLLOW ON SEPARATE PAGES]
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Packet Pg. 205 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
Exhibit D
IN WITNESS WHEREOF, Assignor, Assignee and City have entered into this Assignment Agreement as of the date first above written.
ASSIGNOR:
_____________________________, a
_______________________________
By:
Name:
Its:
[Signature must be notarized]
By:
Name:
Its:
[Signature must be notarized]
ASSIGNEE:
___________________________________, a
_______________________________________
By:
Name:
Its:
[Signature must be notarized]
By:
Name:
Its:
[Signature must be notarized]
[SIGNATURES CONTINUED ON NEXT PAGE]
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Packet Pg. 206 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857-7768-0689 v9
Exhibit D
CITY:
CITY OF HEALDSBURG, a California municipal
corporation
By:
_______________________, City Manager
[Signature must be notarized]
ATTEST:
By:
__________________, City Clerk
APPROVED AS TO FORM:
By:
________________, City Attorney
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Packet Pg. 207 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4857
-7768-0689 v9
Attachment 1 to ExhibitD
ATTACHMENT 1
PROPERTY
[to be inserted]
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Packet Pg. 208 Attachment: 2A. Exhibit 1 Freebird Saggio Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA)
CITY OF HEALDSBURG
RESOLUTION NO. ___ -2023
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
HEALDSBURG APPROVING A DISPOSITION AND
DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY
OF HEALDSBURG AND FREEBIRD DEVELOPMENT
COMPANY, LLC FOR THE SAGGIO HILLS AFFORDABLE
HOUSING PROJECT AT 450 PARKLAND FARMS
BOULEVARD
WHEREAS, City of Healdsburg ("City") is the owner of certain real property described as Parcels 5 and 6 of Saggio Hills per Map recorded May 23, 2018 in Book 795, Pages 31-40 as Instrument No. 2018-037508, of Official Records of Sonoma County Recorder, located in the City of Healdsburg, County of Sonoma, State of California, APNs 091-310-005 & 091-310-006, as amended by the Parcel 5, 6 and 11 Lot Line Adjustment, approved by the City on May 12, 2022, pursuant to LLA 2021-05, as depicted on the Site Map attached hereto as Attachment No. 1 of Exhibit A and more particularly described in the Site Legal Description attached hereto as Attachment No. 2 of Exhibit A (“Affordable Housing Land”); and WHEREAS, on October 30, 2020, the City issued a Request for Qualifications for the development of affordable housing on the Affordable Housing Land. The City received four responses, including one from Freebird Development Company, LLC ("Developer"); and WHEREAS, on February 16, 2021, City and Developer entered into an Exclusive Negotiation Rights Agreement (“ENA”) which established procedures and standards for the submittal and processing of applications for land use entitlements needed to develop the Affordable Housing Land with affordable housing and the negotiation by the City and the Developer of an agreement pursuant to which the City will convey the Affordable Housing Land to Developer on the condition that certain specified development activities will be undertaken by Developer on the Affordable Housing Land; and
WHEREAS, pursuant to the ENA, Developer has submitted applications to the City for approval of design review (“DR 2022-05”) and a tentative map (“TM 2022-02”) to secure the land use entitlements necessary to develop affordable housing (“Affordable Units”) on the Affordable Housing Land (“Project”); and
WHEREAS, the City has taken numerous actions in connection with the approval of the development of affordable housing and associated improvements on the Affordable Housing Land (“Project Improvements”). These include:
(1) Planning Commission and City Council consideration of the Final Environmental Impact Report for the Saggio Hills Project (“Saggio Hills FEIR”), certified as adequate and complete for the Saggio Hill Project pursuant to the California Environmental Quality Act (California Public Resources Code Section 21000 et seq.)
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Packet Pg. 209 Attachment: 3. City Council Resolution (DDA Saggio Aff Housing) (4000 : Saggio Hills Affordable Housing TM, DA, DDA) Resolution No. -2023
(“CEQA”) by City Council Resolution No. 15-2011, and an Addendum to Saggio Hills FEIR for the Project, dated September 2022, as reflected in the findings of the DR Resolution and TM Resolution, respectively, referenced below (“CEQA Determination”); and
(2) Planning Commission approval of DR 2022-05 for the Project, as evidenced by Planning Commission Resolution No. 2022-18, adopted on November 8, 2022 (“DR Resolution”); and
(3) City Council approval of TM 2022-02 for the Project, as evidenced by City Council Resolution No. _____, adopted on March 20, 2023 (“TM Resolution”); and WHEREAS, City and Developer desire to enter into a Disposition and Development Agreement ("Agreement") to set forth the terms and conditions relating to: (i) the disposition of the Affordable Housing Land to Developer; (ii) the development and maintenance of the Project Improvements by Developer; and (iii) the imposition of covenants running with the land to ensure the long-term affordability of the Affordable Units on the Affordable Housing Land; and WHEREAS, the fulfillment of this Agreement is in the vital and best interests of City and the health, safety and welfare of its residents and in accord with the provisions of applicable federal, state and local law.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Healdsburg hereby determines as follows:
1. The City Council has independently reviewed, analyzed and considered the previously certified Saggio Hills Project EIR, the Addendum, the staff report and all attachments thereto, as well as all written documentation and public comments thereto; and
2. The Addendum was prepared and reviewed in compliance with the provisions of CEQA and the CEQA Guidelines; and
3. The information and analysis contained in the Saggio Hills Project EIR and Addendum reflects the City’s independent judgment as to the environmental consequences of the proposed Project; and
4. That, based upon substantial evidence demonstrated by the analysis included in the Saggio Hills Project EIR and Addendum none of the conditions described in Sections 15162 or 15163 of the CEQA Guidelines calling for the preparation of a subsequent or supplemental EIR or negative declaration have occurred; specifically:
(a) There have not been any substantial changes in the Project that require major revisions of the Saggio Hills Project EIR because of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; (b) There have not been any substantial changes with respect to the circumstances under which the Project is undertaken that require major revisions of the Saggio Hills Project EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
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Packet Pg. 210 Attachment: 3. City Council Resolution (DDA Saggio Aff Housing) (4000 : Saggio Hills Affordable Housing TM, DA, DDA) Resolution No. -2023
(c) There is no new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the Saggio Hills Project EIR was certified, that shows any of the following: (a) the Project will have one or more significant effects not discussed in the Saggio Hills Project EIR:
(b) significant effects previously examined will be substantially more severe than shown in the Saggio Hills Project EIR; (c) mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the project proponents decline to adopt the mitigation measure or alternative; or (d) mitigation measures or alternatives which are considerably different from those analyzed in the Saggio Hills Project EIR would substantially reduce one or more significant effects on the environment, but the Project proponents decline to adopt the mitigation measure or alternative; and
BE IT FURTHER RESOLVED, that (i) the use of the Affordable Housing Land to provide housing affordable to persons and families of low or moderate income is in the City’s best interests, (ii) the terms of the Agreement governing the sale and transfer of the Affordable Housing Land to Developer are in conformance with the requirements of Government Code Section 37364, and (iii) therefore, the Affordable Housing Land is "exempt surplus land" under Government Code Section 54221 (f)(1)(A) and therefore, pursuant to Government Code Section 54222.3, the sale and transfer of the Affordable Housing Land from City to Developer is not subject to the requirements of the Surplus Land Act; and
BE IT FURTHER RESOLVED, that the City Council of the City of Healdsburg hereby approves the Disposition And Development Agreement By And Between the City of Healdsburg, A California Municipal Corporation, And Freebird Development Company, LLC, A California Limited Liability Company For The Saggio Hills Affordable Housing Project as presented in Exhibit A attached hereto and incorporated herein by reference, subject to such minor and clarifying changes consistent with the terms thereof as may be approved by the City Attorney prior to execution hereof, and authorizes the City Manager to take all actions, execute all documents to convey and transfer fee title to the Affordable Housing Land, and accept all easements on behalf of the City and otherwise take all appropriate actions to implement the Disposition And Development Agreement in accordance with its terms on behalf of the City of Healdsburg.
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Packet Pg. 211 Attachment: 3. City Council Resolution (DDA Saggio Aff Housing) (4000 : Saggio Hills Affordable Housing TM, DA, DDA) Resolution No. -2023
Passed, Approved AND Adopted by the City Council of the City of Healdsburg this 3 rd
day of April 2023, by the following vote:
AYES: Councilmembers: ( )
NOES: Councilmembers: ( )
ABSENT: Councilmembers: ( )
ABSTAIN: Councilmembers: ( )
SO ORDERED: ATTEST:
_________________________________ ___________________________________ Ariel Kelley, Mayor Raina Allan, City Clerk
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Packet Pg. 212 Attachment: 3. City Council Resolution (DDA Saggio Aff Housing) (4000 : Saggio Hills Affordable Housing TM, DA, DDA) 4861-3167-8007v6
OAK #4861-3167-8007 v9
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between the
CITY OF HEALDSBURG,
a California municipal corporation,
and
FREEBIRD DEVELOPMENT COMPANY, LLC
a California limited liability company,
for
SAGGIO HILLS AFFORDABLE HOUSING PROJECT
Dated: ______________, 2023
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Packet Pg. 213 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) 4861-3167-8007v6 i
OAK #4861-3167-8007 v9
TABLE OF CONTENTS
Page
100. DEFINITIONS; REPRESENTATIONS AND WARRANTIES.........................................3 101. Definitions................................................................................................................3 102. Representations and Warranties .............................................................................14 102.1. City Representations. .....................................................................14 102.2. Developer Representations ............................................................14 102.3. Material Changes ...........................................................................15 103. Prohibition Against and Limitations on Change in Ownership, Management and Control of Developer .................................................................15 103.1. General ...........................................................................................15 103.2. Assignment ....................................................................................15 103.3. Pre-Approved Transfers .................................................................16 103.4. Mortgagee Protection .....................................................................16 200. CITY DISPOSITION OF PHASE 1 PARCELS TO DEVELOPER ................................17 201. Purchase and Sale of Phase 1 Parcels. ...................................................................17 202. Phase 1 Escrow ......................................................................................................17 202.1. Phase 1 Closing Costs ....................................................................17 202.2. Supplemental Phase 1 Escrow Instructions ...................................17 202.3. Authority of Escrow Agent ............................................................18 202.4. Phase 1 Closing ..............................................................................19 202.5. Phase 1 Closing Procedure.............................................................20 203. Review of Title. .....................................................................................................21 204. Title Insurance. ......................................................................................................23 205. Conditions of Phase 1 Closing. ..............................................................................23 205.1. City’s Conditions of Phase 1 Closing ............................................23 205.2. Developer’s Conditions of Phase 1 Closing ..................................24 206. Property Taxes and Assessments. ..........................................................................25 207. Access to Phase 1 Parcels Prior to Phase 1 Conveyance. ......................................25 208. Condition of Phase 1 Parcels .................................................................................25 208.1. Investigation of Phase 1 Parcels ....................................................25 208.2. No Further Warranties as to Phase 1 Parcels; Release of City .................................................................................................26 209. Hazardous Materials ..............................................................................................27 209.1. Duty to Prevent Hazardous Materials Contamination ...................27 209.2. Environmental Inquiries.................................................................27 209.3. Environmental Indemnification .....................................................27 300. DISPOSITION OF PHASE 2 PARCELS TO DEVELOPER ...........................................27 301. Purchase and Sale of Phase 2 Parcels. ...................................................................27 302. Phase 2 Escrow. .....................................................................................................28 302.1. Phase 2 Closing Costs ....................................................................28 302.2. Supplemental Phase 2 Escrow Instructions ...................................28 302.3. Authority of Escrow Agent ............................................................28 302.4. Phase 2 Closing ..............................................................................29
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302.5. Phase 2 Closing Procedure.............................................................30 303. Review of Title. .....................................................................................................31 304. Title Insurance. ......................................................................................................32 305. Conditions of Phase 2 Closing...............................................................................32 305.1. City’s Conditions of Phase 2 Closing ............................................32 305.2. Developer’s Conditions of Phase 2 Closing ..................................34 306. Property Taxes and Assessments...........................................................................34 307. Access to Phase 2 Parcels Prior to Phase 2 Conveyance. ......................................34 308. Condition of Phase 2 Parcels .................................................................................35 308.1. Investigation of Phase 2 Parcels ....................................................35 308.2. No Further Warranties as to Phase 2 Parcels; Release of City.................................................................................................35 309. Hazardous Materials ..............................................................................................36 309.1. Duty to Prevent Hazardous Materials Contamination ...................36 309.2. Environmental Inquiries.................................................................36 309.3. Environmental Indemnification .....................................................36 400. DISPOSITION OF PHASE 3 PARCEL TO DEVELOPER.............................................36 401. Purchase and Sale of Phase 3 Parcel......................................................................36 402. Phase 3 Escrow. .....................................................................................................37 402.1. Phase 3 Closing Costs....................................................................37 402.2. Supplemental Phase 3 Escrow Instructions ...................................37 402.3. Authority of Escrow Agent............................................................37 402.4. Phase 3 Closing..............................................................................39 402.5. Phase 3 Closing Procedure.............................................................39 403. Review of Title ......................................................................................................40 404. Title Insurance .......................................................................................................42 405. Conditions of Phase 3 Closing...............................................................................42 405.1. City’s Conditions of Phase 3 Closing ............................................42 405.2. Developer’s Conditions of Phase 3 Closing ..................................43 406. Property Taxes and Assessments...........................................................................44 407. Access to Phase 3 Parcel Prior to Phase 3 Conveyance.........................................44 408. Condition of Phase 3 Parcel...................................................................................44 408.1. Investigation of Phase 3 Parcel......................................................44 408.2. No Further Warranties as to Phase 3 Parcel; Release of City........45 409. Hazardous Materials ..............................................................................................46 409.1. Duty to Prevent Hazardous Materials Contamination ...................46 409.2. Environmental Inquiries.................................................................46 409.3. Environmental Indemnification .....................................................46 500. CITY DISPOSITION OF PHASE 4 PARCELS TO DEVELOPER ................................46 501. Purchase and Sale of Phase 4 Parcels....................................................................46 502. Phase 4 Escrow ......................................................................................................46 502.1. Phase 4 Closing Costs....................................................................46 502.2. Supplemental Phase 4 Escrow Instructions ...................................47 502.3. Authority of Escrow Agent............................................................47 502.4. Phase 4 Closing..............................................................................48 502.5. Phase 4 Closing Procedure.............................................................48
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503. Review of Title ......................................................................................................49 504. Title Insurance .......................................................................................................50 505. Conditions of Phase 4 Closing...............................................................................51 505.1. City’s Conditions of Phase 4 Closing ............................................51 505.2. Developer’s Conditions of Phase 4 Closing ..................................52 506. Property Taxes and Assessments...........................................................................52 507. Access to Phase 4 Parcels Prior to Phase 4 Conveyance .......................................52 508. Condition of Phase 4 Parcels .................................................................................53 508.1. Investigation of Phase 4 Parcels ....................................................53 508.2. No Further Warranties as to Phase 4 Parcels; Release of City.................................................................................................53 509. Hazardous Materials ..............................................................................................54 509.1. Duty to Prevent Hazardous Materials Contamination ...................54 509.2. Environmental Inquiries.................................................................54 509.3. Environmental Indemnification .....................................................54 600. DEVELOPMENT OF SITE ..............................................................................................55 601. Project Improvements............................................................................................55 602. Development Approvals ........................................................................................57 602.1. Project Approvals...........................................................................57 602.2. Subsequent Project Approvals.......................................................58 602.3. Final Map; Public Improvement Agreement; Public
Improvement Bonds.......................................................................58 603. Schedule of Performance .......................................................................................58 604. Design Review.......................................................................................................59 604.1. Schematic Plans.............................................................................59 604.2. Construction Drawings and Related Documents...........................59 604.3. Revisions........................................................................................59 604.4. Consultation and Coordination ......................................................59 604.5. Defects in Plans..............................................................................60 605. Construction Requirements....................................................................................60 605.1. General Contractor; Construction Contract ...................................60 605.2. Costs of Development and Construction .......................................60 605.3. Construction Oversight ..................................................................60 605.4. Waste Reduction and Recycling ....................................................60 605.5. Construction Reports .....................................................................60 606. Insurance Requirements.........................................................................................61 607. Rights of Access ....................................................................................................61 608. Compliance with Laws ..........................................................................................62 608.1. Compliance with Laws ..................................................................62 608.2. Prevailing Wage Requirements......................................................62 609. Taxes and Assessments..........................................................................................63 610. Certificate of Completion ......................................................................................63 611. Mortgage and Deed of Trust Financing.................................................................63 611.1. No Encumbrances Except Mortgages and Deeds of Trust ............63 611.2. Holder Not Obligated to Construct Project Improvements............63
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611.3. Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure..................................................................................64 700. COVENANTS, RESTRICTIONS AND AGREEMENTS................................................64 701. Use Covenants .......................................................................................................64 702. Rental Affordable Units.........................................................................................64 702.1. Rent and Income Restrictions........................................................65 702.2. General Requirements for Rental Affordable Units ......................65 702.3. Marketing of Rental Affordable Units...........................................65 702.4. Supportive Services to Residents...................................................65 702.5. On-Site Property Manager; Site Management Plan.......................66 703. Owner-Occupied Affordable Units........................................................................66 703.1. Sales Price and Income Restrictions..............................................66 703.2. General Requirements for Owner-Occupied Affordable Units...............................................................................................66 703.3. Marketing of Owner-Occupied Affordable Units..........................67 704. Maintenance Covenants.........................................................................................67 705. Nondiscrimination Covenants................................................................................68 705.1. No Discrimination..........................................................................68 705.2. Nonsegregation Clause ..................................................................68 706. Project Affordable Housing Covenants.................................................................69 706.1. Rental Affordable Housing Covenant............................................69 706.2. Owner-Occupied Affordable Housing Covenant...........................70 707. Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction...................................................................................70 800. FINANCIAL PROVISIONS .............................................................................................71 801. Preliminary Financing Report, Evidence of Financing, and Loan Closings..........71 801.1. Preliminary Financing Report........................................................71 801.2. Evidence of Financing ...................................................................71 801.3. City Approval.................................................................................71 801.4. Loan Closings, Financing, and Notice of Default to City..............72 802. Public Improvement Loan......................................................................................72 803. Conditions Precedent to Public Improvement Loan ..............................................72 804. Limitations on Assignment of Public Improvement Loan.....................................73 805. City Consultant Cost Deposit.................................................................................73 900. DEFAULTS AND REMEDIES ........................................................................................73 901. Default; Notice and Cure .......................................................................................73 902. Institution of Legal Actions...................................................................................74 903. Termination............................................................................................................74 904. Assignment of Developer Plans.............................................................................74 905. Option to Repurchase.............................................................................................74 906. Acceptance of Service of Process..........................................................................76 907. Rights and Remedies Are Cumulative...................................................................76 908. Inaction Not a Waiver of Default...........................................................................76 1000. GENERAL PROVISIONS ................................................................................................76 1001. Notices, Demands and Communications Between the Parties ..............................76
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1002. Enforced Delay; Extension of Times of Performance ...........................................77 1003. Successors and Assigns..........................................................................................77 1004. Recordation of Memorandum of Agreement.........................................................78 1005. Relationship Between City and Developer............................................................78 1006. City Approvals and Actions...................................................................................78 1007. Counterparts; Electronic Signatures ......................................................................78 1008. Integration..............................................................................................................78 1009. Titles and Captions ................................................................................................78 1010. Interpretation..........................................................................................................79 1011. Modifications.........................................................................................................79 1012. Severability ............................................................................................................79 1013. Computation of Time.............................................................................................79 1014. Legal Advice..........................................................................................................79 1015. Time of Essence.....................................................................................................79 1016. Cooperation............................................................................................................79 1017. Conflicts of Interest................................................................................................79 1018. Time for Acceptance of Agreement by City..........................................................80 1019. Developer’s Indemnity...........................................................................................80 1020. Nonliability of Officials and Employees of City ...................................................80 1021. Assignment by City................................................................................................80 1022. Applicable Law......................................................................................................80 1023. Cooperation in the Event of Legal Challenge........................................................80 1024. Termination of Exclusive Negotiation Rights Agreement.....................................81
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ATTACHMENTS
Attachment No. 1 Site Map
Attachment No. 2 Site Legal Description
Attachment No. 3 Tentative Map TM 2022-02
Attachment No. 4 Memorandum of Agreement
Attachment No. 5 Schedule of Performance
Attachment No. 6 Rental Affordable Housing Agreement & Declaration of Restrictive Covenants
Attachment No. 7 Owner-Occupied Affordable Housing Agreement & Declaration of Restrictive Covenants
Attachment No. 8 SLR Wetlands Monitoring License Agreement Attachment No. 9 Grant Deed
Attachment No. 10 Form of Certificate of Completion
Attachment No. 11 Parcel A Public Access Easement Agreement Attachment No. 12 Lot 3 Ingress & Egress Easement Agreement Attachment No. 13 Appraisal Instructions
Attachment No. 14 Form – Promissory Note
Attachment No. 15 Form – Short Form Deed of Trust
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DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (“Agreement”) is entered into by and between the CITY OF HEALDSBURG, a California municipal corporation (“City”), and FREEBIRD DEVELOPMENT COMPANY, LLC, a California limited liability company (“Developer”), as of the Date of Agreement (as defined in Section 101). City and Developer are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.
RECITALS
The following recitals are a substantive part of this Agreement; capitalized terms used herein and not otherwise defined are defined in Section 101of this Agreement:
A. On April 11, 2011, under the authority of Ordinance No. 1107, the City and Sonoma Luxury Resort, LLC, a Delaware limited liability company (“SLR”), entered into a Development Agreement By and Between The City of Healdsburg and Sonoma Luxury Resort LLC, as evidenced by a Memorandum of Development Agreement recorded in the Official Records of Sonoma County (“Official Records”) on April 27, 2011 as Instrument No. 2011037227; as amended on April 5, 2016 by that certain Insubstantial Amendment To The Development Agreement By and Between The City Of Healdsburg And Sonoma Luxury Resort, LLC, Dated April 11, 2011, by and between City and SLR; as amended on May 30, 2019 by that certain Second Insubstantial Amendment To Development Agreement by and between City and SLR, as evidenced by a Memorandum of Second Insubstantial Amendment to Development Agreement, of same date, recorded in the Official Records on August 5, 2019, at Instrument No. 2019053988; as amended on January 19, 2021 by that certain Third Amendment to Development Agreement, by and between City and SLR and a Memorandum of Third Amendment to Development Agreement recorded in the Official Records on March 4, 2021 as Instrument No. 2021025567; and as affected by that certain Partial Assignment And Assumption Of Developer’s Interest Under Development Agreement Between The City of Healdsburg and Sonoma Luxury Resort LLC, by and between SLR and Oaks & Olives and consented to by the City, and recorded in the Official Records on April 22, 2021 as Instrument No. 2021049954 in connection with the sale of Parcel 1, Parcel 4 and Parcel 7 of first final map filed for record in the Official Records on May 23, 2018, in Book 795 of Maps at Pages 31-40, Document No. 2018-037508 (“FM-1”), from SLR to Oaks & Olives (collectively, the “SLR Development Agreement”).
B. The SLR Development Agreement governs, among other matters, the dedication by SLR to the City of Parcels 5 and 6 of FM-1, as amended by the Parcel 5, 6 and 11 Lot Line Adjustment, approved by the City on May 12, 2022, pursuant to LLA 2021-05, as depicted on the Site Map attached hereto as Attachment No. 1, and more particularly described in the Site Legal Description attached hereto as Attachment No. 2, both of which are incorporated herein by this reference (“Site”), for development of up to 150 affordable housing units.
C. Pursuant to the terms of the SLR Development Agreement, fee title to the Site was conveyed by SLR to the City pursuant to Grant Deed dated November 14, 2022, and recorded in Official Records on February 22, 2023, as Instrument No. 2023007222. City is the owner of fee title to the Site.
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D. On October 30, 2020, the City issued a Request for Qualifications for the development of affordable housing on the Site. The City received four responses, including one from Developer.
E. On February 16, 2021, City and Developer entered into an Exclusive Negotiation Rights Agreement (“ENA”) which established procedures and standards for the submittal and processing of applications for land use entitlements needed to develop the Site with affordable housing and the negotiation by the City and the Developer of this Agreement pursuant to which the City will convey the Site to Developer on the condition that certain specified development activities will be undertaken by Developer on the Site.
F. Pursuant to the ENA, Developer has submitted applications to the City for approval of design review (“DR 2022-05”) and a tentative map (“TM 2022-02”) to secure the land use entitlements necessary to develop the Project Improvements, as defined in Section 301 of this Agreement, on the Site.
G. The City has taken numerous actions in connection with the approval of the development of the Project Improvements on the Site. These include:
(1) Planning Commission and City Council consideration of the Final Environmental Impact Report for the Saggio Hills Project (“Saggio Hills FEIR”), certified as adequate and complete for the Saggio Hill Project pursuant to the California Environmental Quality Act (California Public Resources Code Section 21000 et seq.) (“CEQA”) by City Council Resolution No. 15-2011, and an Addendum to Saggio Hills FEIR for the Project, dated September 2022, as reflected in the findings of the DR Resolution and TM Resolution, respectively, referenced below (“CEQA Determination”);
(2) Planning Commission approval of DR 2022-05 for the Project, as evidenced by Planning Commission Resolution No. 2022-18, adopted on November 8, 2022 (“DR Resolution”); and
(3) City Council approval of TM 2022-02 for the Project, as evidenced by City Council Resolution No. _____, adopted on April 3, 2023 (“TM Resolution”).
H. City and Developer desire to enter into this Agreement to set forth the terms and conditions relating to: (i) the disposition of the Site, excluding Parcel B, to Developer; (ii) the development and maintenance of the Project Improvements by Developer; and (iii) the imposition of covenants running with the land to ensure the long-term affordability of the Affordable Units on the Site.
I. The fulfillment of this Agreement is in the vital and best interests of City and the health, safety and welfare of its residents and in accord with the provisions of applicable federal, state and local law.
AGREEMENT
NOW, THEREFORE, City and Developer hereby agree as follows:
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100. DEFINITIONS; REPRESENTATIONS AND WARRANTIES
101. Definitions.
“Acknowledgment of CC&Rs” is defined in Section 704.
“Adjusted for family size appropriate to the unit” shall have the meaning set forth in Section 50052.5 of the California Health and Safety Code, as amended or any successor statute thereto, subject to the application of federal rules and regulations, if applicable to financing sources for all or a portion of the Project Improvements, including applicable federal and TCAC regulations.
“Affiliate of Developer” means either: 1) an entity or entities in which Developer retains more than fifty percent (50%) in the aggregate, directly or indirectly, of the ownership or beneficial interest and retains full management and control of the day-to-day affairs of the transferee entity or entities, either directly or indirectly through another entity, subject only to certain major events requiring the consent or approval of the other owners of such entity; or 2) a limited partnership formed to own and finance those improvements to be constructed as part of Phase 1 Improvements, Phase 2 Improvements or Phase 3 Improvements to be rented to lower income households, of which the Developer, either directly or through a single-member LLC of which Developer is the sole member/manager, is a general partner or a co-general partner and will retain the management and control, together with any co-general partner, of the day-to-day affairs of the limited partnership, subject only to certain major events requiring the consent or approval of the other owners of such entity.
“Affordable Rent” shall mean rental rates no greater than that considered as affordable rent for extremely low income households to lower income households, adjusted for family size appropriate to the unit, determined in accordance with California Health and Safety Code section 50053, as amended, or any successor statute thereto; provided, however, that for lower income households with gross incomes that exceed 60 percent of the area median income adjusted for family size appropriate to the unit, rental rates may be established at a level not to exceed 30 percent of gross income of the household. Notwithstanding the foregoing, if applicable to financing sources for all or a portion of the Project, during the fifteen (15) year tax credit compliance period under Internal Revenue Code Section 42, or such longer term of the regulatory agreement to be executed by TCAC and Developer and recorded against the applicable portion of the Project, the City hereby permits Developer to use the occupancy standards and rent levels required by TCAC.
“Affordable Sales Price” shall mean housing costs no greater than that considered as affordable housing cost for Persons and Families of Moderate Income, as applicable to an Eligible Purchaser, adjusted for family size appropriate for the unit, determined in accordance with Section 50052.5 of the California Health and Safety Code, as amended or any successor statute thereto.
“Agreement” means this Disposition and Development Agreement between City and Developer.
“Amended Site Management Plan” is defined in Section 702.5.
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“Appraisal Instructions,” as referenced in Sections 201, 301, 401 and 501, shall mean the instructions to the appraiser to determine the fair market value of the Phase 1 Parcels, Phase 2 Parcels, Phase 3 Parcel, or Phase 4 Parcels, attached hereto as Attachment No. 13. “Area Median Income” means the median household income (adjusted for family size appropriate to the unit) of the Metropolitan Statistical Area in which Sonoma County is located, as established pursuant to Section 50093 of the California Health and Safety Code, as amended or any successor statute thereto, or, as applicable, the median income for Sonoma County, California, adjusted for family size appropriate to the unit, as determined by TCAC regulations.. “CC&Rs” is defined in Section 704 and means the declaration of covenants, conditions and restrictions governing the obligation of the Owners to maintain the Project Improvements on the Site, excluding Parcel B, in accordance with the requirements of the Conditions of Approval and this Agreement.
“CEQA” is defined in Recital G. (1).
“CEQA Determination” is defined in Recital G. (1).
“Certificate of Completion” means the document evidencing Developer’s satisfactory completion of construction of each Project Phase, as provided Section 610, and attached hereto in the form of Attachment No. 10.
“City” means the City of Healdsburg, a California municipal corporation. “City Consultant Cost Deposit” is defined in Section 805. “City Council” means the City Council of the City of Healdsburg. “City Manager” means the City Manager of the City of Healdsburg, or his or her designee.
“City Municipal Code” means the Municipal Code of the City of Healdsburg. “City Parties” is defined in Section 606.
“City’s Conditions Precedent to Phase 1 Closing” is defined in Section 205.1. “City’s Conditions Precedent to Phase 2 Closing” is defined in Section 305.1. “City’s Conditions Precedent to Phase 3 Closing” is defined in Section 405.1. “City’s Conditions Precedent to Phase 4 Closing” is defined in Section 505.1. “Claims” means demands, lawsuits, liabilities, obligations, claims, damages, fines, penalties, expenses, costs, and cause of actions (including reasonable attorneys’ fees), whether at law or in equity.
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“Commence Construction” and “Commencement of Construction” are defined in Section 603.
“Complete Construction” and “Completion of Construction” are defined in Section 603. “Conditions of Approval” means the conditions of approval adopted by the (i) Planning Commission in connection with their approval of DR 2022-05 pursuant to the DR Resolution and (ii) the City Council in connection with their approval of TM 2022-02 pursuant to the TM Resolution.
“Conditions Precedent to Public Improvement Loan” is defined in Section 803. “Construction Contract” is defined in Section 605.1.
“Construction Drawings” is defined in Section 604.2.
“Construction of the Phase 1 Project has commenced” shall mean the Phase 1 Closing has been completed and the City has issued one or more building permits for the construction of residential building improvements on Lot 14 and Developer has undertaken substantial work on said Lot 14 in reliance thereon.
“Consultant Costs” is defined in Section 805.
“County” means the County of Sonoma.
“Date of Agreement” means the date on which this Agreement is signed by the City Manager on behalf of City as indicated on the signature page hereof. “Davis-Bacon” is defined in Subsection 608.2(a).
“Deed of Trust,” as referenced in Sections 201, 301, 401, and 802, shall mean the short form deed of trust securing the Promissory Note, attached hereto in the form of Attachment No. 15, to be recorded in the Official Records in connection with (i) Phase 1 Carry-Back Financing extended in the Phase 1 Closing, (ii) Phase 2 Carry-Back Financing extended in the Phase 2 Closing, (iii) Phase 3 Carry-Back Financing extended in the Phase 3 Closing, or (iv) the Public Improvement Loan extended in the Phase 1 Closing, respectively. “Default” is defined in Section 901.
“Developer” means Freebird Development Company, LLC, a California limited liability company.
“Developer Plans” is defined in Section 904.
“Developer’s Conditions Precedent to Phase 1 Closing” is defined in Section 205.2. “Developer’s Conditions Precedent to Phase 2 Closing” is defined in Section 305.2. “Developer’s Conditions Precedent to Phase 3 Closing” is defined in Section 405.2.
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“Developer’s Conditions Precedent to Phase 4 Closing” is defined in Section 505.2. “DR Resolution” is defined in Recital G. (2).
“DR 2022-05” is defined in Recital F.
“Effective Date” means the later of (i) the Date of Agreement, or (ii) May 17, 2023, if Ordinance No. _________, relating to the approval of the Development Agreement between City and Developer, is approved and adopted by the City Council and becomes effective. “Eligible Household” means an Extremely Low Income Household, Very Low Income Household, or Lower Income Household qualified in accordance with the terms of this Agreement, the Rental Affordable Housing Covenant and Sections 50106, 50105 and 50079.5, respectively, of the California Health and Safety Code, as amended or any successor statute thereto.
“Eligible Purchaser” means Persons and Families of Moderate Income qualified in accordance with the terms of this Agreement, the Owner-Occupied Affordable Housing Covenant and Section 50093 of the California Health and Safety Code, as amended or any successor statute thereto.
“ENA” is defined in Recital E.
“Escrow Agent” shall mean Chicago Title Company, One Kaiser Plaza, Suite 745, Oakland, CA 94612.
“Evidence of Financing” is defined in Section 801.2.
“Extremely Low Income Household” is defined in Section 50106 of the California Health and Safety Code section, as amended or any successor statute thereto. “Final Map” is defined in Section 602.3 and means a final map to be prepared by Developer for approval by City in accordance with the City Municipal Code and the Subdivision Map Act, California Government Code Section 66410 et.seq., which is consistent with TM 2022- 02 and the Conditions of Approval as approved by the TM Resolution. “FM-1” is defined in Recital A.
“Grant Deed” means the document effecting a Phased Conveyance to be recorded in the Official Records at a Phased Closing and attached hereto in the form of Attachment No. 9. “Hazardous Materials” means any substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government, including any material or substance which is: (i) defined as a “hazardous waste,” “extremely hazardous waste,” or “restricted hazardous waste” under sections 25115, 25117 or 25122.7, or listed pursuant to section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a “hazardous substance” under section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter7.A.f Packet Pg. 225 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) 4861-3167-8007v6 7
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Presley-Tanner Hazardous Substance Account Act); (iii) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a “hazardous substance” under section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated biphenyls; (viii) listed under Article 9 or defined as “hazardous” or “extremely hazardous” pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20; (ix) designated as “hazardous substances” pursuant to section 311 of the Clean Water Act (33 U.S.C. § 1317); (x) defined as a “hazardous waste” pursuant to section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, (42 U.S.C. § 6903); or (xi) defined as “hazardous substances” pursuant to section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be amended.
“Implementing Agreements” is defined in Section 805.
“Interest” and “Interests” are defined in Section 103.1. “Laws” means all laws, ordinances, statutes, codes, rules, regulations, orders and decrees, of the United States, the State of California, County, City, any other political subdivision in which the Site is located, and of any other political subdivision, City or instrumentality exercising jurisdiction over City, Developer, the Site or the Project Improvements, including all applicable state labor laws and standards (including prevailing wages, as applicable); all applicable public contracts requirements, zoning and development standards; building, plumbing, mechanical and electrical codes; all other provisions of the City Municipal Code; and all applicable disabled and handicapped access requirements, including the Americans With Disabilities Act, 42 U.S.C. section 12101, et seq., Government Code section 4450, et seq., Government Code section 11135, et seq., and the Unruh Civil Rights Act, Civil Code section 51, et seq.
“Lot 1” is defined in Section 601(a)
“Lot 1 Improvements” is defined in Section 601(d)
“Lot 2” is defined in Section 601(a).
“Lot 2 Improvements” is defined in Section 601(e).
“Lot 3” is defined in Section 601(a).
“Lot 3 Ingress & Egress Easement Agreement” is defined in Section 601(f) and attached hereto in the form of Attachment No. 12.
“Lot 3 Improvements” is defined in Section 601(f).
“Lot 14” is defined in Section 601(a).
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“Lot 14 Improvements” is defined in Section 601(h).
“Lot 15” is defined in Section 601(a).
“Lot 15 Improvements” is defined in Section 601(i).
“Lot 15 Owner-Occupied Option” is defined in Section 601(i). “Lot 15 Rental Option” is defined in Section 601(i).
“Lower Income Household” is defined in Section 50079.5 of the California Health and Safety Code, as amended or any successor statute thereto. “Memorandum of Agreement” means the Memorandum of Disposition and Development Agreement defined in Section 1004 and attached hereto in the form of Attachment No. 4.
“NOFA” means a Notice of Funding Availability issued by federal, state or local agencies regarding the availability of funding for the development of affordable housing. “Notice” is defined in Section 1001.
“Official Records” is defined in Recital A.
“Option Price” is defined in Section 905(d).
“Owner-Occupied Affordable Housing Covenant” means the Owner-Occupied Affordable Housing Agreement and Declaration of Restrictive Covenants defined in Section 706.2 and attached hereto in the form of Attachment No. 7. “Owner-Occupied Affordable Unit” and “Owner-Occupied Affordable Units” are defined in Section 703.
“Owner-Occupied Residential Marketing Plan” is defined in Section 703.3. “Owners” means the owners of fee title to Parcel A, Lot 1, Lot 2, Lot 3, Townhome Lots, Lot 14 and Lot 15.
“Parcel A” is defined in Section 601(a).
“Parcel A Improvements” is defined in Section 601(b).
“Parcel A Public Access Easement Agreement” is defined in Section 601(b) and attached hereto in the form of Attachment No. 11.
“Parcel B” is defined in Section 601(a).
“Parcel B Improvements” is defined in Section 601(c).
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“Party” and “Parties” are defined in the introductory paragraph preceding the Recitals of this Agreement.
“Persons and families of moderate income” is defined in Section 50093 of the California Health and Safety Code, as amended or any successor statute thereto. “Phase 1 Carry-Back Financing,” is defined in Section 201. “Phase 2 Carry-Back Financing,” is defined in Section 301. “Phase 3 Carry-Back Financing,” is defined in Section 401. “Phase 1 Closing” is defined in Section 202.4.
“Phase 2 Closing” is defined in Section 302.4.
“Phase 3 Closing” is defined in Section 402.4.
“Phase 4 Closing” is defined in Section 502.4.
“Phase 1 Closing Costs” is defined in Section 202.1.
“Phase 2 Closing Costs” is defined in Section 302.1.
“Phase 3 Closing Costs” is defined in Section 402.1.
“Phase 4 Closing Costs” is defined in Section 502.1.
“Phase 1 Closing Date” is defined in Section 202.4.
“Phase 2 Closing Date” is defined in Section 302.4.
“Phase 3 Closing Date” is defined in Section 402.4.
“Phase 4 Closing Date” is defined in Section 502.4.
“Phase 1 Condition of Title” is defined in Subsection 203. “Phase 2 Condition of Title” is defined in Subsection 303. “Phase 3 Condition of Title” is defined in Subsection 403. “Phase 4 Condition of Title” is defined in Subsection 503. “Phase 1 Escrow” is defined in Section 202.
“Phase 2 Escrow” is defined in Section 302.
“Phase 3 Escrow” is defined in Section 402.
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“Phase 4 Escrow” is defined in Section 502. “Phase 1 Improvements” is defined in Section 601.1. “Phase 2 Improvements” is defined in Section 601.1. “Phase 3 Improvements” is defined in Section 601.1. “Phase 4 Improvements” is defined in Section 601.1. “Phase 1 Outside Date” is defined in Section 202.4. “Phase 2 Outside Date” is defined in Section 302.4. “Phase 3 Outside Date” is defined in Section 402.4. “Phase 4 Outside Date” is defined in Section 502.4. “Phase 1 Parcels” means Parcel A, Lot 2 and Lot 14. “Phase 2 Parcels” means Lot 1 and Lot 3. “Phase 3 Parcel” means Lot 15. “Phase 4 Parcels” means the Townhome Lots. “Phase 1 Pre-Approved Exceptions” is defined in Section 203 .
“Phase 2 Pre-Approved Exceptions” is defined in Section 303. “Phase 3 Pre-Approved Exceptions” is defined in Section 403. “Phase 4 Pre-Approved Exceptions” is defined in Section 503. “Phase 1 Project” is defined in Section 601.1. “Phase 2 Project” is defined in Section 601.1. “Phase 3 Project” is defined in Section 601.1. “Phase 4 Project” is defined in Section 601.1. “Phase 1 Purchase Price” is defined in Section 201 .
“Phase 2 Purchase Price” is defined in Section 301. “Phase 3 Purchase Price” is defined in 401. “Phase 4 Purchase Price” is defined in Section 501.
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“Phase 1 Title Exceptions” is defined in Section 203.
“Phase 2 Title Exceptions” is defined in Section 303.
“Phase 3 Title Exceptions” is defined in Section 403.
“Phase 4 Title Exceptions” is defined in Section 503.
“Phase 1 Title Policy” is defined in Section 204.
“Phase 2 Title Policy” is defined in Section 304.
“Phase 3 Title Policy” is defined in Section 404.
“Phase 4 Title Policy” is defined in Section 504.
“Phase 1 Title Report” is defined in Section 203.
“Phase 2 Title Report” is defined in Section 303.
“Phase 3 Title Report” is defined in Section 403.
“Phase 4 Title Report” is defined in Section 503.
“Phased Closing” shall mean, individually, the time and day the Grant Deed effecting the Phase 1 Conveyance (“Phase 1 Closing”), Phase 2 Conveyance (“Phase 2 Closing”), Phase 3 Conveyance (“Phase 3 Closing”), or Phase 4 Conveyance (“Phase 4 Closing”) is filed for record in the Official Records.
“Phased Conveyance” shall mean, individually, the conveyance of fee title to Phase 1 Parcels (“Phase 1 Conveyance”), Phase 2 Parcels (“Phase 2 Conveyance”), Phase 3 Parcel (“Phase 3 Conveyance”) or Phase 4 Parcels (“Phase 4 Conveyance”) by City to Developer. “Phased Escrow” shall mean, individually, the opening of an escrow with Escrow Agent for the Phase 1 Conveyance (“Phase 1 Escrow”), Phase 2 Conveyance (“Phase 2 Escrow”), Phase 3 Conveyance (“Phase 3 Escrow”), or Phase 4 Conveyance (“Phase 4 Escrow”). “Planning Commission” means the City of Healdsburg Planning Commission. “Preliminary Financing Report” is defined in Section 801. “Project Affordable Housing Covenant” means the Rental Affordable Housing Covenant and the Owner-Occupied Affordable Housing Covenant. “Project Affordable Units” means the Rental Affordable Units and the Owner-Occupied Affordable Units.
“Project Approvals” is defined in Section 602.1.
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“Project Financing” is defined in Section 801.1.
“Project Improvements” shall mean, collectively, the improvements to be designed, constructed and installed by Developer in each Project Phase, as described in Section 601. “Project Phase” shall mean, individually, the Phase 1 Project, Phase 2 Project, Phase 3 Project, or Phase 4 Project.
“Promissory Note,” as referenced in Section 201, 301, 401 and 802, shall mean a promissory note, substantially in the form attached hereto as Attachment 14, and subject to such commercially reasonable modifications as requested by Developer and its lenders and investors and approved by the City Manager and City Attorney, in their reasonable discretion, evidencing Developer’s obligation to pay City (i) the Phase 1 Purchase Price in connection with Phase 1 Carry-Back Financing extended in the Phase 1 Closing, (ii) the Phase 2 Purchase Price in connection with Phase 2 Carry-Back Financing extended in the Phase 2 Closing, (iii) the Phase 3 Purchase Price in connection with Phase 3 Carry-Back Financing extended in the Phase 3 Closing, or (iv) the Public Improvement Loan extended in the Phase 1 Closing, respectively. “Property Manager” is defined in Section 702.5.
“Property Manager Unit” is defined in Section 702.2.
“Public Improvement Agreement” is defined in Section 602.3. “Public Improvement Bonds,” as provided in Section 602.3, means the performance bond and payment bond required to be provided by Developer to City pursuant to the Public Improvement Agreement.
“Public Improvement Loan” is defined in Section 802.
“Public Improvements” is defined in Section 601(j).
“Rental Affordable Housing Covenant” means the Rental Affordable Housing Agreement and Declaration of Restrictive Covenants defined in Section 706.1 and attached hereto in the form of Attachment No. 6.
“Rental Affordable Unit” and “Rental Affordable Units” are defined in Section 702. “Rental Residential Marketing Plan” is defined in Section 702.3. “Saggio Hills FEIR” is defined in Recital G. (1).
“Schedule of Performance” means the Schedule of Performance attached hereto as Attachment No. 5, setting out the dates and/or time periods by which certain obligations of City and Developer set forth in this Agreement must be accomplished. “Schematic Plans” is defined in Section 604.1.
“Site” is defined in Recital B.
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“Site Legal Description” means the legal description of the Site attached hereto as Attachment No. 2.
“Site Management Plan” is defined in Section 702.5.
“Site Map” means the map of the Site attached hereto as Attachment No 1. “SLR” is defined in Recital A and means Sonoma Luxury Resort, LLC, a Delaware limited liability company, the City’s predecessor-in-interest to the Site. “SLR Development Agreement” is defined in Recital A.
“SLR License Agreement” means the license agreement entered into by and between the City and SLR, governing SLR’s obligation to monitor the restoration of creeks located on the Site and attached hereto as Attachment No. 8.
“State Labor Code” is defined in Subsection 608.2(a).
“Subordination Agreement – Owner-Occupied Affordable Units” is defined in Section 706.2.
“Subordination Agreement – Rental Affordable Units” is defined in Section 706.1. “Subsequent Project Approvals” is defined in Section 602.2. “Supportive Services Plan” is defined in Section 702.4. “Title Company” shall mean Old Republic Title Company, 555 12th Street, Suite 2020, Oakland, CA 94607.
“Title Policies” shall mean, collectively, the Phase 1 Title Policy, Phase 2 Title Policy, Phase 3 Title Policy, and Phase 4 Title Policy.
“TM Resolution” is defined in Recital G. (3).
“TM 2022-02,” a copy of which is attached hereto as Attachment No. 3, is defined in Recital F.
“Townhome Lot Improvements” is defined in Section 601(g). “Townhome Lots” is defined in Section 601(a).
“Very Low Income Household” is defined in Section 50105 of the California Health and Safety Code, as amended or any successor statute thereto. “Waste Management Compliance Report” is defined in Section 605.4. “Waste Management Plan” is defined in Section 605.4.
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102. Representations and Warranties.
102.1. City Representations. City represents and warrants to Developer as follows:
(a) Authority. City is a California municipal corporation, which has been authorized to transact business pursuant to action of the City Council of the City. City has full right, power and lawful authority to perform its obligations hereunder and the execution, performance and delivery of this Agreement by City has been fully authorized by all requisite actions on the part of City.
(b) No Conflict. To the best of City’s knowledge, City’s execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which City is a Party or by which it is bound. 102.2. Developer Representations. Developer represents and warrants to City, as to each Project Phase, as follows:
(a) Authority. Developer is a limited liability company, limited partnership, general partnership, corporation, non-profit public benefit corporation or otherwise duly organized under, and qualified to do business and in good standing under, the laws of the State of California, and has provided evidence of such organizational documentation to City for its review and approval prior to the execution of this Agreement or its acquisition of an Interest herein. Developer has full right, power and lawful authority to perform its obligations hereunder and the execution, performance and delivery of this Agreement by Developer has been fully authorized by all requisite actions on the part of Developer. (b) No Conflict. To the best of Developer’s knowledge, Developer’s execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Developer is a Party or by which it is bound.
(c) No Developer Bankruptcy. Developer is not the subject of any voluntary or involuntary bankruptcy proceeding, and there has been no general assignment or general arrangement for the benefit of any of Developer’s creditors, and no trustee or receiver has been appointed to take possession of substantially all of the assets of Developer. (d) Litigation. To the best of Developer’s knowledge, there are no actions, suits, material claims, legal proceedings, or any other proceedings affecting the Site or any portion thereof, at law or in equity before any court or governmental City, domestic or foreign.
(e) No City Member Financial Interest. No member, official or employee of City has any personal interest, direct or indirect, in this Agreement, the Site or any portion thereof, the Project Improvements to be constructed thereon, or in any other development project or business venture in which Developer or its majority shareholder is the controlling or managing member, general partner or majority shareholder.
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102.3. Material Changes. Until the issuance of a Certificate of Completion for each Project Phase, Developer, upon learning of any fact or condition that would cause any of the warranties and representations in Section 102.2 not to be true in material respects, shall give written notice of such fact or condition to City within five (5) days of Developer learning such fact or condition.
103. Prohibition Against and Limitations on Change in Ownership, Management and Control of Developer.
103.1. General. The qualifications and identity of Developer are of particular concern to City. It is because of such demonstrated qualifications and identity that City has entered into this Agreement with Developer. No voluntary or involuntary successor in interest of Developer shall acquire any interest in the Site or Project Phase or any portion thereof, or any rights or powers under this Agreement (each of the foregoing is referred to herein as an “Interest” and collectively as “Interests”), except as expressly set forth herein. It is expressly stipulated and agreed that any assignment, sale, transfer or other disposition of all or any portion of the Site, Project Phase or any interest therein or any rights or powers under this Agreement in violation of this Section 103 shall be null, void and without effect and shall be ineffective to relieve Developer of its obligations under this Agreement. After issuance of the Certificate of Completion for a Project Phase, this Section 103 shall no longer apply to, and the restrictions on transfer shall be as set forth in the Project Affordable Housing Covenant applicable to, the Project Phase.
103.2. Assignment.
(a) Except for pre-approved transfers described in Section 103.3, prior to issuance of a Certificate of Completion for each Project Phase, Developer shall not assign or transfer any Interest without the prior written approval of the City Manager, which may be granted or denied in his or her sole discretion. The foregoing notwithstanding, and not in degradation of his or her discretion, the City Manager shall have the right to disapprove any transfer or assignment that would materially diminish or otherwise materially impair the ability of Developer to fulfill its duties and obligations under this Agreement. (b) Developer shall promptly notify City in advance of any proposed transfer or assignment of any Interest. Notice shall not be required with respect to those preapproved transfers listed in Subsections 103.3(b), 103.3(c), 103.3(d), or 103.3(e). The City Manager shall approve or disapprove the requested transfer or assignment within sixty (60) days after receipt of a written request for approval, together with such documentation as may be reasonably requested by the City Manager in order to evaluate the proposed assignee’s/transferee’s experience and qualifications, including all loan documents in connection with any proposed financing or refinancing and all documentation which the City Manager determines is reasonably necessary to evaluate the proposed transaction and the proposed assignee’s/transferee’s experience and qualifications.
(c) In addition, Developer shall deliver to the City Manager a proposed written assignment and assumption agreement in which the assignee would expressly agree to assume all rights and obligations of Developer under this Agreement as applicable to the
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Project Phase, which arise after the effective date of the assignment, and in which the assignee would agree to assume, or Developer would expressly remain responsible for, all performance of Developer as applicable to the Project Phase which arose prior to the effective date of the assignment. The assignment and assumption agreement shall be in a form reasonably acceptable to City’s legal counsel. Promptly following the date the assignment becomes effective, Developer shall deliver to City a fully executed counterpart of the assignment and assumption agreement.
103.3. Pre-Approved Transfers. Notwithstanding any other provision of this Agreement to the contrary, City approval of a transfer or assignment of any Interest shall not be required in connection with any of the following:
(a) Subject to Developer submitting and obtaining City’s approval of the assignment and assumption agreement referred to in Subsection 103.2(c), any transfer or assignment of any Interest to an Affiliate of Developer occurring contemporaneously with and in connection with a Phased Closing;
(b) Transfers resulting from the death or mental or physical incapacity of any shareholder of Developer or any constituent thereof; (c) The granting of temporary or permanent easements or permits to facilitate development of the Project Improvements;
(d) Any mortgage, deed of trust, or assignment for purposes of financing construction (including design, planning permitting, remediation, site preparation and horizontal and vertical construction) of the Project Improvements; (e) Leasing of Rental Affordable Units to Eligible Households at Affordable Rents;
(f) Sale of Owner-Occupied Affordable Units to Eligible Purchasers at Affordable Sales Price; and
(g) A transfer of the ownership interests in Developer, which, combined with any and all previous or simultaneous transfers after the Date of Agreement, represents less than fifty percent (50%) of the equity or beneficial interest of Developer, provided such transfer does not cause a material change in the rights to manage and control Developer.
In the event of an assignment or transfer by Developer under Subsection 103.3(a), 103.3(d), or 103.3(f) not requiring City’s prior approval, Developer nevertheless agrees that it shall give at least forty five (45) days prior written Notice to City of such assignment or transfer.
In addition, City shall be entitled to review such documentation as may be reasonably required by the City Manager for the purpose of determining compliance of such assignment or transfer with the requirements of Subsection 103.3(a), 103.3(d), or 103.3(f). 103.4. Mortgagee Protection. Nothing in this Section 103 or elsewhere in this Agreement shall prohibit (i) the sale or transfer of all or any portion of a Project Phase through
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foreclosure of a mortgage or deed of trust permitted pursuant to Subsection 103.3(d), (ii) the transfer of all or any portion of a Project Phase to the holder of such permitted mortgage or deed of trust by deed in lieu of foreclosure, or (iii) the transfer of all or any portion of a Project Phase by any such holder subsequent to acquisition by foreclosure or deed in lieu, so long as such transfer complies with Section 611.
200. CITY DISPOSITION OF PHASE 1 PARCELS TO DEVELOPER
201. Purchase and Sale of Phase 1 Parcels. Developer shall purchase from City and City shall sell to Developer the Phase 1 Parcels in accordance with and subject to all of the terms, covenants and conditions of this Agreement. The purchase price for the Phase 1 Parcels, shall be One Dollar ($1.00) (“Phase 1 Purchase Price”), which amount represents the fair reuse value of the Phase 1 Parcels. Developer shall pay the full amount of the Purchase Price in cash at the Phase 1 Closing.
Alternatively, no less than thirty (30) calendar days following the City Manager’s approval of the Evidence of Financing for the Phase 1 Project, Developer may notify City in writing that it has elected to pay the Phase 1 Purchase Price in an amount equal to the fair market value of the Phase 1 Parcels, which notice shall be accompanied by an appraisal of the fair market value of the Phase 1 Parcels, determined in accordance with the Appraisal Instructions, attached hereto as Attachment No. 13, for City’s review and approval. Developer shall pay the full amount of the Phase 1 Purchase Price, as determined in accordance with the appraisal approved by City, at the Phase 1 Closing as applicable to the Phase 1 Conveyance in accordance with the terms of a Promissory Note, substantially in the form attached hereto as Attachment No. 14, to be secured by a Deed of Trust in favor of City, substantially in the form attached hereto as Attachment No. 15, which Deed of Trust shall contain a “due-on sale or further transfer clause” and be subordinate to Developer’s construction and permanent financing for the Phase 1 Project (collectively, the “Phase 1 Carry-Back Financing”). The Phase 1 Carry-Back Financing, as evidenced by the Promissory Note, shall bear interest at the rate of zero percent (0%) per annum and the entire balance shall be due and payable on the fifty-fifth (55th) anniversary of the recordation of the Certificate of Completion for the Phase 1 Project. 202. Phase 1 Escrow. Within the time set forth in the Schedule of Performance, City shall open an escrow with Escrow Agent, for the Phase 1 Conveyance to Developer (“Phase 1 Escrow”).
202.1. Phase 1 Closing Costs. Any and all usual fees, charges, and costs chargeable by Escrow Agent for the Phase 1 Escrow, including the costs of the premium for the Phase 1 Title Policy and any endorsements thereto, recording fees, and documentary transfer taxes, if any, due with respect to the Phase 1 Conveyance, including any and all costs, fees and expenses, including taxes and assessments, if required, pursuant to the Subdivision Map Act related to processing, filing and recording the Final Map in the Official Records (collectively, the “Phase 1 Closing Costs”), shall be satisfied and/or paid by Developer. 202.2. Supplemental Phase 1 Escrow Instructions. Prior to the Phase 1 Conveyance to Developer, the Parties shall submit appropriate supplemental escrow instructions to Escrow Agent for the close of the Phase 1 Escrow in accordance with the terms and conditions
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of this Agreement. The Parties shall use reasonable good faith efforts to close the Phase 1 Escrow in the shortest possible time. Insurance policies for fire or casualty are not to be transferred, and City will cancel its own policies, if any, after the Phase 1 Closing. All funds received in the Phase 1 Escrow shall be deposited in interest-bearing accounts for the benefit of the depositing Party in any state or national bank doing business in the State of California. All disbursements shall be made by check or wire transfer from such account. The Phase 1 Closing shall take place when both City’s and Developer’s Conditions Precedent to Phase 1 Closing as set forth in Section 205 hereof have been satisfied or waived by the Party benefitted by such condition. Escrow Agent is instructed to release City’s escrow closing and Developer’s escrow closing statements to the respective Parties.
202.3. Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
(a) Phase 1 Title Policy. Pay and charge Developer for the premium of the Phase 1 Title Policy as set forth in Section 204 hereof and any amount necessary to place title in the condition necessary to satisfy Section 203 of this Agreement. (b) Endorsements. Pay and charge Developer for any endorsements to the Phase 1 Title Policy that are requested by Developer as set forth in Section 204 hereof. (c) Fees. Pay and charge Developer for the Phase 1 Closing Costs. (d) Final Map. Record the Final Map against the Site.
(e) Memorandum of Agreement. Record the Memorandum of
Agreement against the Site.
(f) CC&Rs. Record the CC&Rs against the Site.
(g) Grant Deed. Record the Grant Deed conveying fee title to the Phase 1 Parcels to Developer.
(h) Acknowledgment of CC&Rs. Record the Acknowledgment of CC&Rs against the Phase 1 Parcels.
(i) Rental Affordable Housing Covenant. Record a Rental Affordable Housing Covenant against Lot 14.
(j) Subordination Agreement – Rental Affordable Units. Record a Subordination Agreement – Rental Affordable Units against Lot 14. (k) Public Improvement Agreement. Record the Public
Improvement Agreement against the Phase 1 Parcels.
(l) Parcel A Public Access Easement Agreement. Record the Parcel A Public Access Easement Agreement against Parcel A.
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(m) Phase 1 Purchase Price; Phase 1 Carry-Back Financing.
Deliver the Phase 1 Purchase Price for the Phase 1 Parcels to City, or, if Developer elects Phase 1 Carry-Back Financing in accordance with Section 201 of this Agreement, deliver the Promissory Note to City and record the Deed of Trust.
(n) Public Improvement Loan. Deliver the Public Improvement Loan proceeds in accordance with Sections 802 and 803 of this Agreement, deliver the Promissory Note to City and record the Deed of Trust.
(o) Disbursement. Disburse funds and deliver and record the Final Map, CC&Rs, Memorandum of Agreement, Grant Deed, Acknowledgment of CC&Rs, Deed of Trust-Phase 1 Carry-Back Financing, Deed of Trust-Public Improvement Loan, Rental Affordable Housing Covenant, Subordination Agreement – Rental Affordable Units, and Parcel A Public Access Easement Agreement, when both Developer’s and City’s Conditions Precedent to Phase 1 Closing have been fulfilled or waived in writing by Developer and/or City, as applicable.
(p) Other Actions. Do such other actions as necessary, including obtaining the Phase 1 Title Policy, to fulfill its obligations under this Agreement. (q) Additional Documents. Direct City and Developer to execute and deliver any instrument, affidavit, and statement, and to perform any act, reasonably necessary to comply with the provisions of FIRPTA and any similar state act and regulations promulgated thereunder. City shall execute a Certificate of Non-Foreign Status by individual transferor and/or a Certification of Compliance with Real Estate Reporting Requirement of the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to be supplied by Escrow Agent. (r) Closing Statement. Prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, tax withholding forms including an IRS 1099-S form, and be responsible for withholding taxes, if any such forms are provided for or required by law.
202.4. Phase 1 Closing. The Phase 1 Conveyance by City to Developer shall take place within ten (10) days after the satisfaction or waiver, as applicable, of all of City’s and Developer’s Conditions Precedent to Phase 1 Closing as set forth in Section 205, below. “Phase 1 Closing” shall mean the time and day the Grant Deed effectuating the Phase 1 Conveyance is filed for record in the Official Records. The “Phase 1 Closing Date” shall mean the date on which the Phase 1 Closing occurs. Notwithstanding anything herein to the contrary, if, for any reason, the Phase 1 Closing has not occurred within five (5) years of the Effective Date (“Phase 1 Outside Date”), this Agreement shall automatically terminate and, thereafter, neither Party shall have any further rights or obligations hereunder except for those provisions which by their terms survive expiration or termination of this Agreement. The foregoing notwithstanding, though the Phase 1 Outside Date is not subject to extension due to an enforced delay, the Phase 1 Outside Date may be extended with the approval of the City Council in accordance with Section 1002.
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202.5. Phase 1 Closing Procedure. Escrow Agent shall close the Phase 1 Escrow for the Phase 1 Parcels as follows:
(a) Final Map. Record the Final Map against the Site in the Official Records.
(b) Memorandum of Agreement. Record the Memorandum of
Agreement against the Site in the Official Records, immediately following recordation of the Final Map.
(c) CC&Rs. Record the CC&Rs against the Site in the Official Records, immediately following recordation of the Memorandum of Agreement. (d) Grant Deed. Record the Grant Deed conveying fee title to the Phase 1 Parcels to Developer in the Official Records, with instructions to deliver the Grant Deed to Developer, immediately following recordation of the CC&Rs. (e) Rental Affordable Housing Covenant. Record the Rental Affordable Housing Covenant against Lot 14 in the Official Records, immediately following recordation of the Grant Deed.
(f) Subordination Agreement – Rental Affordable Units. Record the Subordination Agreement – Rental Affordable Units against Lot 14 in the Official Records, immediately following recordation of the Rental Affordable Housing Covenant. (g) Acknowledgment of CC&Rs. Record the Acknowledgment of CC&Rs against the Phase 1 Parcels in the Official Records, immediately following recordation of the Subordination Agreement – Rental Affordable Units. (h) Deed of Trust – Phase 1 Carry-Back Financing. If Developer elects Phase 1 Carry-Back Financing, record the Deed of Trust against the Phase 1 Parcels securing the Promissory Note executed by Developer in connection with Phase 1 Carry-Back Financing extended in Phase 1 Closing, immediately following recordation of the Acknowledgment of CC&Rs.
(i) Deed of Trust – Public Improvement Loan. Record the Deed of Trust against the Phase 1 Parcels securing the Promissory Note executed by Developer in connection with Public Improvement Loan extended in Phase 1 Closing, immediately following recordation of the Deed of Trust – Phase 1 Carry-Back Financing. (j) Public Improvement Agreement. Record the Public
Improvement Agreement against the Phase 1 Parcels in the Official Records, immediately following recordation of the Deed of Trust – Public Improvement Loan. (k) Parcel A Public Access Easement Agreement. Record the Parcel A Public Access Easement Agreement against Parcel A in the Official Records, immediately following recordation of the Public Improvement Agreement.
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(l) Phase 1 Purchase Price; Promissory Note – Phase 1 CarryBack Financing. Deliver the Phase 1 Purchase Price for the Phase 1 Parcels to City, or, if Developer elects Phase 1 Carry-Back Financing in accordance with Section 201, deliver the Promissory Note evidencing the Phase 1 Carry-Back Financing to City. (m) Promissory Note – Public Improvement Loan. Deliver the Promissory Note evidencing the Public Improvement Loan to City. (n) Public Improvement Loan. Deliver the Public Improvement Loan proceeds to Developer.
(o) Phase 1 Title Policy. Instruct the Title Company to deliver the Phase 1 Title Policy to Developer.
(p) Informational Reports. File any informational reports required by Internal Revenue Code section 6045(e), as amended, and any other applicable requirements. (q) FIRPTA Certificate. Deliver the FIRPTA Certificate, if any, to Developer.
(r) Accounting. Forward to both Developer and City a separate accounting of all funds received from and disbursed to each Party and conformed copies of all executed and recorded or filed documents deposited into Escrow, with such recording and filing date and information endorsed thereon.
203. Review of Title. City shall cause Title Company to deliver to Developer and City a standard preliminary title report with respect to the title to Phase 1 Parcels (“Phase 1 Title Report”), together with legible copies of the documents underlying the exceptions set forth in the Phase 1 Title Report (“Phase 1 Exceptions”), within the time set forth in the Schedule of Performance. Developer shall cause a survey of the Site to be prepared by a licensed civil engineer, certified to Title Company, Developer and City, sufficient to file and record the Final Map in the Official Records as part of the Phase 1 Closing and enable Title Company to issue the Title Policies. Any matter on such survey encumbering the Phase 1 Parcels shall be included in the Phase 1 Exceptions subject to Developer’s review and approval under this Section 203.
Developer shall have the right to reasonably approve or disapprove the Phase 1 Exceptions; provided, however, Developer hereby approves the following Phase 1 Exceptions which shall be referred to herein as the “Phase 1 Pre-Approved Exceptions”:
(a) The lien of any non-delinquent property taxes and assessments; (b) Any incidental easements or other matters affecting title which do not preclude Developer’s intended use of the Phase 1 Parcels; (c) Matters reflected on the Final Map.
(d) The conditions, including repurchase option, set forth in the Grant Deed;
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(e) The Memorandum of Agreement;
(f) The CC&Rs and Acknowledgment of CC&Rs;
(g) The Rental Affordable Housing Covenant;
(h) The Subordination Agreement – Rental Affordable Units; (i) The Public Improvement Agreement;
(j) The Deed of Trust, if Developer elects Phase 1 Carry-Back Financing;
(k) The Deed of Trust securing the Public Improvement Loan; (l) The Parcel A Public Access Easement Agreement;
(m) Public Utility Easement dated September 26, 2022, recorded in Official Records on September 30, 2022, Document No. 2022063604, affecting Lot 14; (n) Matters created by, through, or under Developer;
(o) Such other exceptions to title as may hereafter be mutually approved by City and Developer.
Within the time set forth in the Schedule of Performance, Developer shall give written Notice to City, Title Company and Escrow Agent of Developer’s approval or disapproval of any of the Phase 1 Exceptions (except the Phase 1 Pre-Approved Exceptions). Developer’s failure to give written disapproval of the Phase 1 Exceptions within such time limit shall be deemed approval of the Phase 1 Exceptions. If Developer notifies City of its disapproval of any Phase 1 Exceptions, City shall have the right, but not the obligation, to cause any disapproved Phase 1 Exceptions to be removed within sixty (60) days after receiving written Notice of Developer’s disapproval or provide assurances satisfactory to Developer that such Phase 1 Exceptions will be removed on or before the Phase 1 Closing. City’s failure to notify Developer within such sixty (60) day period shall be deemed an election not to remove the disapproved Phase 1 Exceptions.
City’s election not to remove any disapproved Phase 1 Exceptions shall not be a Default under the provisions of this Agreement. If City cannot or does not elect to remove any of the disapproved Phase 1 Exceptions within such sixty (60) day period, Developer shall have ten (10) days after the expiration of such sixty (60) day period to either give City written Notice that Developer elects, in its sole discretion, to proceed with the purchase of the Phase 1 Parcels subject to the disapproved Phase 1 Exceptions or to give City written Notice that Developer elects to terminate this Agreement. The Phase 1 Exceptions to title approved by Developer as provided herein shall hereinafter be referred to as the “Phase 1 Condition of Title.” If any Phase 1 Exceptions other than Phase 1 Pre-Approved Exceptions are reported by the Title Company after Developer has approved the Phase 1 Condition of Title for the Phase 1 Parcels pursuant to the foregoing procedures, then any such new Phase 1 Exception shall be subject to the same procedures for review and approval set forth above for Phase 1 Exceptions constituting the Phase 1 Condition of Title.
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204. Title Insurance. Concurrently with recordation of the Grant Deed conveying to Developer title to the Phase 1 Parcels, the Title Company shall issue to Developer an ALTA owner’s policy of title insurance (“Phase 1 Title Policy”), together with such endorsements as are reasonably requested by Developer, insuring that title to Developer’s interest in the Phase 1 Parcels acquired as of the date of issuance of the Phase 1 Title Policy is vested in Developer.
Title Company shall provide City with a copy of the Phase 1 Title Policy. The Phase 1 Title Policy shall be in the amount of the Phase 1 Purchase Price. The premium for the Phase 1 Title Policy (and City duplicate Phase 1 Title Policy), plus any additional costs, including the cost of the survey and any endorsements requested by Developer shall be borne by Developer. 205. Conditions of Phase 1 Closing. The Phase 1 Closing is conditioned upon the satisfaction of the following terms and conditions within the times designated below:
205.1. City’s Conditions of Phase 1 Closing. City’s obligation to proceed with the Phase 1 Closing of the Phase 1 Conveyance is subject to the fulfillment or waiver by City of each and all of the conditions precedent described below (“City’s Conditions Precedent to Phase 1 Closing”), which are solely for the benefit of City, and which shall be fulfilled or waived within the time periods provided for herein:
(a) No Default. Prior to the Phase 1 Closing, Developer shall not be in Default under the terms of this Agreement, no event shall have occurred which with the passage of time or giving of notice or both would constitute a Default hereunder, and all representations and warranties of Developer contained herein shall be true and correct in all material respects.
(b) Final Map; Public Improvement Agreement; Public
Improvement Bonds. Developer shall have prepared, processed and secured all approvals of the Final Map required in accordance with the Subdivision Map Act, including City approval of the Final Map, executed and acknowledged the Public Improvement Agreement, and delivered the Final Map and Public Improvement Agreement into Escrow. Developer shall also have delivered the Public Improvement Bonds required pursuant to the Public Improvement Agreement to the City.
(c) Execution of Documents. Developer shall have (i) executed and acknowledged, as applicable, the Grant Deed, Memorandum of Agreement, Acknowledgement of CC&Rs, Rental Affordable Housing Covenant, Parcel A Public Access Easement Agreement, Promissory Note and Deed of Trust in connection with Public Improvement Loan, and any other documents required hereunder and delivered such documents into the Phase 1 Escrow, and (ii) caused its lienholders to execute and acknowledge the Subordination Agreement – Rental Affordable Units and deliver such document into the Phase 1 Escrow. (d) Phase 1 Purchase Price and Phase 1 Closing Costs. Developer shall have delivered the Phase 1 Purchase Price, or if applicable, the Promissory Note and Deed of Trust in connection with Phase 1 Carry-Back Financing, and Phase 1 Closing Costs into the Phase 1 Escrow.
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(e) Evidence of Financing. City shall have approved Developer’s Evidence of Financing for the Phase 1 Project as provided in Section 801 hereof. (f) Insurance. Developer shall have provided proof of insurance for the Phase 1 Project as required by Section 606 hereof.
(g) General Contractor/Construction Contract. City shall have approved Developer’s general contractor and the Construction Contract for the Phase 1 Project, as provided in Section 605.1hereof.
(h) Construction Loan Closing. Developer’s construction loan(s) for the Phase 1 Project shall have closed or shall be ready to close concurrently with the Phase 1 Closing.
(i) Permits and Land Use Approvals. Developer shall have obtained all City and other governmental permits and land use approvals required pursuant to Section 602 hereof and all other entitlements required for the development and construction of the Phase 1 Project, and the period for administrative and legal challenge to such land use approvals and entitlements shall have expired and City shall be ready to issue building permits for the construction of Phase 1 Project upon the payment of the applicable fees by Developer. (j) Payment of Development Fees. Developer shall have paid all or be current on payments to City of all development fees due City pursuant to the Project Approvals to enable Developer to commence development and construction of the Phase 1 Project.
(k) Construction Drawings. City shall have reviewed and approved the Construction Drawings for the Phase 1 Project, as provided in Section 604.4 hereof. 205.2. Developer’s Conditions of Phase 1 Closing. Developer’s obligation to proceed with the Phase 1 Closing of the Phase 1 Conveyance is subject to the fulfillment or waiver by Developer of each and all of the conditions precedent described below (“Developer’s Conditions Precedent to Phase 1 Closing”), which are solely for the benefit of Developer, and which shall be fulfilled or waived within the time periods provided for herein:
(a) No Default. Prior to the Phase 1 Closing, City shall not be in Default of any of its obligations under the terms of this Agreement, no event shall have occurred which with the passage of time or giving of notice or both would constitute a Default hereunder, and all representations and warranties of City contained herein shall be true and correct in all material respects.
(b) Final Map. City, as owner of fee title to the Site, shall have executed and acknowledged the Final Map necessary for filing and recording in the Official Records.
(c) Execution of Documents. City shall have authorized, executed and acknowledged the Grant Deed, Memorandum of Agreement, CC&Rs (as Declarant), Rental Affordable Housing Covenant, Public Improvement Agreement, Parcel A Public Access
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Easement Agreement, and any other documents required hereunder, and delivered such documents into the Phase 1 Escrow.
(d) Review and Approval of Phase 1 Condition of Title. Developer shall have reviewed and approved the Phase 1 Condition of Title, as provided in Section 203 hereof.
(e) Phase 1 Title Policy. The Title Company shall, upon payment of Title Company’s regularly scheduled premium, be ready to issue the Phase 1 Title Policy upon recordation of the Grant Deed in accordance with Section 204 hereof. (f) Public Improvement Loan. City shall have deposited the proceeds of the Public Improvement Loan into the Phase 1 Escrow. 206. Property Taxes and Assessments. Ad valorem taxes and assessments levied, assessed or imposed on the Phase 1 Parcels for any period prior to the Phase 1 Conveyance to Developer shall be borne by City. Ad valorem taxes and assessments levied, assessed or imposed on the Phase 1 Parcels for the period after the Phase 1 Conveyance thereof shall be borne by Developer.
207. Access to Phase 1 Parcels Prior to Phase 1 Conveyance. Prior to the Phase 1 Conveyance, City and Developer shall cooperate to enable representatives of Developer to obtain the right of access to all portions of the Phase 1 Parcels for the purpose of obtaining data and making surveys and tests, including the investigation of the soils and environmental condition of the Phase 1 Parcels. Developer agrees to notify City in writing at least twenty-four (24) hours prior to undertaking any studies or work upon the Phase 1 Parcels. City may require Developer to execute one or more right of entry agreements satisfactory to City’s legal counsel prior to commencing such studies or work. Any preliminary work by Developer shall be undertaken only after securing all required insurance under this Agreement and any and all necessary permits from the appropriate governmental agencies. Developer shall indemnify, defend, protect and hold City and City Parties harmless from any claims, losses, liabilities and damages arising out of the activities of Developer as set forth in this Section 207. In addition, in the event that Developer causes any damage to any portion of the Phase 1 Parcels or the existing improvements thereon, Developer shall promptly restore the Phase 1 Parcels and existing improvements thereon as nearly as possible to the physical condition existing immediately prior to Developer’s entry onto the Phase 1 Parcels.
208. Condition of Phase 1 Parcels.
208.1. Investigation of Phase 1 Parcels. During the term of the ENA, Developer was provided the right, at its sole cost and expense, to engage its own consultants as Developer deems necessary, to determine whether the Site, inclusive of the Phase 1 Parcels, is suitable for development of the Project Improvements, taking into account the geotechnical and soils conditions; the presence or absence of toxic or other hazardous materials; the zoning of the Site; the massing of the proposed Project Improvements; traffic, circulation and parking requirements, issues and constraints imposed on developments of this type that may affect development of the Site; assessment of major public and private utility capacities and
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connections for providing service to the Project Improvements; assessment of Site drainage; assessment of creek and wetland issues that may affect development of the Project Improvements; and assessment of any other environmental and regulatory factors that the Developer deems relevant. In accordance with the ENA, Developer notified City and does hereby confirm in this Agreement that, in the Developer’s judgment, based on its investigations and analyses, the Site, inclusive of the Phase 1 Parcels, is suitable for development.
Developer acknowledges that City makes no representations or warranties with respect to the accuracy, completeness, methodology of preparation or otherwise concerning the contents of any information or reports made available to Developer regarding any inspections, engineering, environmental or other matters pertaining to the Site, inclusive of the Phase 1 Parcels.
Developer acknowledges that City has requested that Developer inspect fully all portions of the Site, inclusive of the Phase 1 Parcels, and investigate all matters relevant thereto and to rely solely upon the results of Developer’s own inspections or other information obtained or otherwise available to Developer, rather than any information that may have been provided by City to Developer.
208.2. No Further Warranties as to Phase 1 Parcels; Release of City.
Notwithstanding any provision of this Agreement to the contrary, the Phase 1 Parcels shall be conveyed by City to Developer in its “AS IS” condition, “WITH ALL FAULTS,” with no warranty expressed or implied by City regarding the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Phase 1 Parcels for the development purposes intended hereunder. To the extent authorized by contract or law, City shall assign to Developer all warranties and guaranties with respect to the Phase 1 Parcels, if any, that City may receive from the prior owner of the Phase 1 Parcels.
Developer hereby waives, releases and discharges forever City and City Parties from all present and future Claims, known and unknown, arising out of or in any way connected with the condition of the Phase 1 Parcels, any existing improvements thereon, or any Hazardous Materials on, under, in, about or emanating from the Phase 1 Parcels or existing improvements thereon, however they came to be placed there.
Developer is aware of and familiar with the provisions of section 1542 of the California Civil Code which provides as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” As such relates to this Section 208.2, Developer hereby waives and relinquishes all rights and benefits which it may have under section 1542 of the California Civil Code. ______________
Developer Initials
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209. Hazardous Materials.
209.1. Duty to Prevent Hazardous Materials Contamination. After the Phase 1 Conveyance, Developer shall take all reasonably necessary precautions to prevent the release of any Hazardous Materials onto or from the Phase 1 Parcels. Such precautions shall include compliance with all Laws with respect to Hazardous Materials. In addition, Developer shall install and utilize such equipment and implement and adhere to such procedures as are consistent with all Laws with respect to the disclosure, storage, use, removal and disposal of Hazardous Materials.
209.2. Environmental Inquiries. If a release of any Hazardous Materials onto or from any portion of the Phase 1 Parcels occurs at any time after the Phase 1 Conveyance, Developer shall, as soon as possible after the release, furnish to City a copy of any and all reports relating thereto and copies of all correspondence with governmental agencies relating to the release.
209.3. Environmental Indemnification. From and after the Phase 1 Conveyance, Developer shall indemnify, defend and hold City and City Parties harmless from and against any Claims resulting from, arising out of, or based upon the release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in, about, or emanating from, or the transportation of any such Hazardous Materials to or from, the Phase 1 Parcels in violation, or alleged violation, of any Laws, no matter when occurred, except that the foregoing indemnity obligation shall not apply to any matters that arise out of the active negligence or willful misconduct of City or City Parties. This indemnity shall include any damage, liability, fine, penalty, parallel indemnity, cost or expense arising from or out of any claim, action, suit or proceeding for bodily injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, trespass, contamination, leak, spill, release or other adverse effect on the environment.
300. DISPOSITION OF PHASE 2 PARCELS TO DEVELOPER
301. Purchase and Sale of Phase 2 Parcels. Developer shall purchase from City and City shall sell to Developer the Phase 2 Parcels in accordance with and subject to all of the terms, covenants and conditions of this Agreement. The purchase price for the Phase 2 Parcels shall be One Dollar ($1.00) (“Phase 2 Purchase Price”), which amount represents the fair reuse value of the Phase 2 Parcels. Developer shall pay the full amount of the Phase 2 Purchase Price in cash at the Phase 2 Closing.
Alternatively, no less than thirty (30) calendar days following the City Manager’s approval of the Evidence of Financing for the Phase 2 Project, Developer may notify City in writing that it has elected to pay the Phase 2 Purchase Price in an amount equal to the fair market value of the Phase 2 Parcels, which notice shall be accompanied by an appraisal of the fair market value of the Phase 2 Parcels determined in accordance with the Appraisal Instructions, attached hereto as Attachment No. 13, for City’s review and approval. Developer shall pay the full amount of the Phase 2 Purchase Price, as determined in accordance with the appraisal approved by City, at the Phase 2 Closing as applicable to the Phase 2 Conveyance in accordance
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with the terms of a Promissory Note, substantially in the form attached hereto as Attachment No. 14, to be secured by a Deed of Trust in favor of City, substantially in the form attached hereto as Attachment No. 15, which Deed of Trust shall contain a “due-on sale or further transfer clause” and be subordinate to Developer’s construction and permanent financing for the Phase 2 Project (collectively, the “Phase 2 Carry-Back Financing”). The Phase 2 Carry-Back Financing, as evidenced by the Promissory Note, shall bear interest at the rate of zero percent (0%) per annum and the entire balance shall be due and payable on the fifty-fifth (55th) anniversary of the recordation of the Certificate of Completion for the Phase 2 Project. 302. Phase 2 Escrow. Within the time set forth in the Schedule of Performance, City shall open an escrow with Escrow Agent for the Phase 2 Conveyance to Developer (“Phase 2 Escrow”).
302.1. Phase 2 Closing Costs. Any and all usual fees, charges, and costs chargeable by Escrow Agent for the Phase 2 Escrow, including the costs of the premium for the Phase 2 Title Policy and any endorsements thereto, recording fees, and documentary transfer taxes, if any, due with respect to the Phase 2 Conveyance (collectively, the “Phase 2 Closing Costs”), shall be paid by Developer.
302.2. Supplemental Phase 2 Escrow Instructions. Prior to the Phase 2 Conveyance to Developer, the Parties shall submit appropriate supplemental escrow instructions to Escrow Agent for the close of the Escrow in accordance with the terms and conditions of this Agreement. The Parties shall use reasonable good faith efforts to close the Phase 2 Escrow in the shortest possible time. Insurance policies for fire or casualty are not to be transferred, and City will cancel its own policies, if any, after the Phase 2 Closing. All funds received in the Phase 2 Escrow shall be deposited in interest-bearing accounts for the benefit of the depositing Party in any state or national bank doing business in the State of California. All disbursements shall be made by check or wire transfer from such account. The Phase 2 Closing shall take place when both City’s and Developer’s Conditions Precedent to Phase 2 Closing as set forth in Section 205 hereof have been satisfied or waived by the Party benefitted by such condition.
Escrow Agent is instructed to release City’s escrow closing and Developer’s escrow closing statements to the respective Parties.
302.3. Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
(a) Phase 2 Title Policy. Pay and charge Developer for the premium of the Phase 2 Title Policy as set forth in Section 204 hereof and any amount necessary to place title in the condition necessary to satisfy Section 203of this Agreement. (b) Endorsements. Pay and charge Developer for any endorsements to the Phase 2 Title Policy that are requested by Developer as set forth in Section 204 hereof. (c) Fees. Pay and charge Developer for the Phase 2 Closing Costs. (d) Phase 2 Purchase Price; Phase 2 Carry-Back Financing.
Deliver the Phase 2 Purchase Price for the Phase 2 Parcels to City, or, if Developer elects Phase 2 Carry-Back Financing in accordance with Section 301 of this Agreement, deliver the Promissory Note to City and record the Deed of Trust.
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(e) Grant Deed. Record the Grant Deed conveying fee title to the Phase 2 Parcels to Developer.
(f) Rental Affordable Housing Covenant. Record a Rental Affordable Housing Covenant against Lot 3.
(g) Subordination Agreement – Rental Affordable Units. Record a Subordination Agreement – Rental Affordable Units against Lot 3. (h) Acknowledgment of CC&Rs. Record the Acknowledgment of CC&Rs against the Phase 2 Parcels.
(i) Lot 3 Ingress & Egress Easement Agreement. Record the Lot 3 Ingress & Egress Easement Agreement against Lot 3.
(j) Disbursement. Disburse funds and deliver and record the Grant Deed, Acknowledgment of CC&Rs, Deed of Trust-Phase 2 Carry Back Financing, Rental Affordable Housing Covenant, Subordination Agreement – Rental Affordable Units, and Lot 3 Ingress & Egress Easement Agreement when both Developer’s and City’s Conditions Precedent to Phase 2 Closing have been fulfilled or waived in writing by Developer and/or City, as applicable.
(k) Other Actions. Do such other actions as necessary, including obtaining the Title Policy, to fulfill its obligations under this Agreement. (l) Additional Documents. Direct City and Developer to execute and deliver any instrument, affidavit, and statement, and to perform any act, reasonably necessary to comply with the provisions of FIRPTA and any similar state act and regulations promulgated thereunder. City shall execute a Certificate of Non-Foreign Status by individual transferor and/or a Certification of Compliance with Real Estate Reporting Requirement of the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to be supplied by Escrow Agent. (m) Closing Statement. Prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, tax withholding forms including an IRS 1099-S form, and be responsible for withholding taxes, if any such forms are provided for or required by law.
302.4. Phase 2 Closing. The Phase 2 Conveyance by City to Developer shall take place within ten (10) days after the satisfaction or waiver, as applicable, of all of City’s and Developer’s Conditions Precedent to Phase 2 Closing as set forth in Section 305, below. “Phase 2 Closing” shall mean the time and day the Grant Deed effectuating the Phase 2 Conveyance is filed for record in the Official Records. The “Phase 2 Closing Date” shall mean the date on which the Phase 2 Closing occurs. Notwithstanding anything herein to the contrary, if, for any reason, the Phase 2 Closing has not occurred within the later of (i) five (5) years of the Effective Date, or (ii) ten (10) years of the Effective Date if construction of the Phase 1 Project has commenced on or before five (5) years of the Effective Date (“Phase 2 Outside Date”), this Agreement shall automatically terminate and, thereafter, neither Party shall have any further rights or obligations hereunder except for those provisions which by their terms survive
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expiration or termination of this Agreement. The foregoing notwithstanding, though the Phase 2 Outside Date is not subject to extension due to an enforced delay, the Phase 2 Outside Date may be extended with the approval of the City Council in accordance with Section 1002. 302.5. Phase 2 Closing Procedure. Escrow Agent shall close the Phase 2 Escrow for the Phase 2 Parcels as follows:
(a) Grant Deed. Record the Grant Deed conveying fee title to the Phase 2 Parcels to Developer in the Official Records, with instructions to deliver the Grant Deed to Developer.
(b) Acknowledgment of CC&Rs. Record the Acknowledgment of CC&Rs against Phase 2 Parcels in the Official Records, immediately following recordation of the Grant Deed.
(c) Rental Affordable Housing Covenant. Record a Rental Affordable Housing Covenant against Lot 3 in the Official Records, immediately following recordation of the Acknowledgment of CC&Rs.
(d) Subordination Agreement – Rental Affordable Units. Record a Subordination Agreement – Rental Affordable Units against Lot 3 in the Official Records, immediately following recordation of the Rental Affordable Housing Covenant. (e) Lot 3 Ingress & Egress Easement Agreement. Record the Lot 3 Ingress & Egress Easement Agreement against Lot 3 in the Official Records, immediately following recordation of the Subordination Agreement – Rental Affordable Units. (f) Phase 2 Purchase Price; Promissory Note – Phase 2 CarryBack Financing. Deliver the Phase 2 Purchase Price for the Phase 2 Parcels to City, or, if Developer elects Phase 2 Carry-Back Financing in accordance with Section 301, deliver the Promissory Note evidencing the Phase 2 Carry-Back Financing to City. (g) Deed of Trust - Phase 2 Carry-Back Financing. If Developer elects Phase 2 Carry-Back Financing in accordance with Section 301, record the Deed of Trust against the Phase 2 Parcels immediately following recordation of the Lot 3 Ingress & Egress Easement Agreement.
(h) Phase 2 Title Policy. Instruct the Title Company to deliver the Phase 2 Title Policy to Developer.
(i) Informational Reports. File any informational reports required by Internal Revenue Code section 6045(e), as amended, and any other applicable requirements. (j) FIRPTA Certificate. Deliver the FIRPTA Certificate, if any, to Developer.
(k) Accounting. Forward to both Developer and City a separate accounting of all funds received from and disbursed to each Party and conformed copies of all
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executed and recorded or filed documents deposited into Escrow, with such recording and filing date and information endorsed thereon.
303. Review of Title. City shall Title Company to deliver to Developer and City a standard preliminary title report with respect to the title to the Phase 2 Parcels (“Phase 2 Title Report”), together with legible copies of the documents underlying the exceptions set forth in the Phase 2 Title Report (“Phase 2 Exceptions”), within the time set forth in the Schedule of Performance. In connection with the Phase 1 Closing, Developer caused a survey of the Site to be prepared by a licensed civil engineer, certified to Title Company, Developer and City, sufficient to file and record the Final Map in the Official Records and enable Title Company to issue the Title Policies. Any matter on such survey encumbering the Phase 2 Parcels shall be included in the Phase 2 Exceptions subject to Developer’s review and approval under this Section 303. Developer shall have the right to reasonably approve or disapprove the Phase 2 Exceptions; provided, however, Developer hereby approves the following Phase 2 Exceptions which shall be referred to herein as the “Phase 2 Pre-Approved Exceptions”:
(a) The lien of any non-delinquent property taxes and assessments; (b) Any incidental easements or other matters affecting title which do not preclude Developer’s intended use of the Phase 2 Parcels; (c) Matters reflected on the Final Map.
(d) The conditions, including repurchase option, set forth in the Grant Deed;
(e) The Memorandum of Agreement;
(f) The Rental Affordable Housing Covenant;
(g) The Subordination Agreement – Rental Affordable Units; (h) The CC&Rs and Acknowledgment of CC&Rs.
(i) The Deed of Trust, if Developer elects Phase 2 Carry-Back Financing;
(j) The Lot 3 Ingress & Egress Easement Agreement;
(k) Access And Public Utility Easement Deed dated January 24, 2023, recorded in Official Records on February 21, 2023, Document No. 2023007027, affecting Lot 1; (l) Matters created by, through, or under Developer;
(m) Such other exceptions to title as may hereafter be mutually approved by City and Developer.
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Within the time set forth in the Schedule of Performance, Developer shall give written Notice to City, Title Company and Escrow Agent of Developer’s approval or disapproval of any of the Phase 2 Exceptions (except the Phase 2 Pre-Approved Exceptions). Developer’s failure to give written disapproval of the Phase 2 Exceptions within such time limit shall be deemed approval of the Phase 2 Exceptions. If Developer notifies City of its disapproval of any Phase 2 Exceptions, City shall have the right, but not the obligation, to cause any disapproved Phase 2 Exceptions to be removed within sixty (60) days after receiving written Notice of Developer’s disapproval or provide assurances satisfactory to Developer that such Phase 2 Exceptions will be removed on or before the Phase 2 Closing. City’s failure to notify Developer within such sixty (60) day period shall be deemed an election not to remove the disapproved Phase 2 Exceptions.
City’s election not to remove any disapproved Phase 2 Exceptions shall not be a Default under the provisions of this Agreement. If City cannot or does not elect to remove any of the disapproved Phase 2 Exceptions within such sixty (60) day period, Developer shall have ten (10) days after the expiration of such sixty (60) day period to either give City written Notice that Developer elects, in its sole discretion, to proceed with the purchase of the Phase 2 Parcels subject to the disapproved Phase 2 Exceptions or to give City written Notice that Developer elects to terminate its right to acquire the Phase 2 Parcels and develop, construct and install the Phase 2 Project pursuant to this Agreement. The Phase 2 Exceptions to title approved by Developer as provided herein shall hereinafter be referred to as the “Phase 2 Condition of Title.” If any Phase 2 Exceptions other than Phase 2 Pre-Approved Exceptions are reported by the Title Company after Developer has approved the Phase 2 Condition of Title for the Phase 2 Parcels pursuant to the foregoing procedures, then any such new Phase 2 Exception shall be subject to the same procedures for review and approval set forth above for Phase 2 Exceptions constituting the Phase 2 Condition of Title.
304. Title Insurance. Concurrently with recordation of the Grant Deed conveying to Developer title to the Phase 2 Parcels, the Title Company shall issue to Developer an ALTA owner’s policy of title insurance (“Phase 2 Title Policy”), together with such endorsements as are reasonably requested by Developer, insuring that title to Developer’s interest in the Phase 2 Parcels acquired as of the date of issuance of the Phase 2 Title Policy is vested in Developer.
Title Company shall provide City with a copy of the Phase 2 Title Policy. The Phase 2 Title Policy shall be in the amount of the Phase 2 Purchase Price. The premium for the Phase 2 Title Policy (and City duplicate Phase 2 Title Policy), plus any additional costs, including the cost of any survey and any endorsements requested by Developer shall be borne by Developer. 305. Conditions of Phase 2 Closing. The Phase 2 Closing is conditioned upon the satisfaction of the following terms and conditions within the times designated below:
305.1. City’s Conditions of Phase 2 Closing. City’s obligation to proceed with the Phase 2 Closing of the Phase 2 Conveyance is subject to the fulfillment or waiver by City of each and all of the conditions precedent described below (“City’s Conditions Precedent to Phase 2 Closing”), which are solely for the benefit of City, and which shall be fulfilled or waived within the time periods provided for herein:
(a) No Default. Prior to the Phase 2 Closing, Developer shall not be in Default under the terms of this Agreement, no event shall have occurred which with the passage of time or giving of notice or both would constitute a Default hereunder, and all
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representations and warranties of Developer contained herein shall be true and correct in all material respects.
(b) Phase 1 Project. Construction of the Phase 1 Project has commenced.
(c) Execution of Documents. Developer shall have (i) executed and acknowledged the Grant Deed, Acknowledgment of CC&Rs, Rental Affordable Housing Covenant, Lot 3 Ingress & Egress Easement Agreement and any other documents required hereunder and delivered such documents into the Phase 2 Escrow, and (ii) caused its lienholders to execute and acknowledge the Subordination Agreement – Rental Affordable Unit and deliver such document into the Phase 2 Escrow.
(d) Phase 2 Purchase Price and Phase 2 Closing Costs. Developer shall have delivered the Phase 2 Purchase Price, or, if applicable, the Promissory Note and Deed of Trust in connection with the Phase 2 Carry-Back Financing, and the Phase 2 Closing Costs into the Phase 2 Escrow.
(e) Evidence of Financing. City shall have approved Developer’s Evidence of Financing for the Phase 2 Project as provided in Section 801 hereof. (f) Insurance. Developer shall have provided proof of insurance for the Phase 2 Project as required by Section 606 hereof.
(g) General Contractor/Construction Contract. City shall have approved Developer’s general contractor and the Construction Contract for the Phase 2 Project as provided in Section 605.1 hereof.
(h) Construction Loan Closing. Developer’s construction loan(s) for the Phase 2 Project shall have closed or shall be ready to close concurrently with the Phase 2 Closing.
(i) Permits and Land Use Approvals. Developer shall have obtained all City and other governmental permits and land use approvals required pursuant to Section 602 hereof and all other entitlements required for the Phase 2 Project, and the period for administrative and legal challenge to such land use approvals and entitlements shall have expired and City shall be ready to issue building permits for the construction of the Phase 2 Project upon the payment of the applicable fees by Developer.
(j) Payment of Development Fees. Developer shall have paid all or be current on payments to City of all development fees due City pursuant to the Project Approvals to enable Developer to commence development and construction of the Phase 2 Project.
(k) Construction Drawings. City shall have reviewed and approved the Construction Drawings for the Phase 2 Project as provided in Section 604.4 hereof.
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305.2. Developer’s Conditions of Phase 2 Closing. Developer’s obligation to proceed with the Phase 2 Closing of the Phase 2 Conveyance is subject to the fulfillment or waiver by Developer of each and all of the conditions precedent described below (“Developer’s Conditions Precedent to Phase 2 Closing”), which are solely for the benefit of Developer, and which shall be fulfilled or waived within the time periods provided for herein:
(a) No Default. Prior to the Phase 2 Closing, City shall not be in Default of any of its obligations under the terms of this Agreement, no event shall have occurred which with the passage of time or giving of notice or both would constitute a Default hereunder, and all representations and warranties of City contained herein shall be true and correct in all material respects.
(b) Execution of Documents. City shall have authorized, executed and acknowledged the Grant Deed, Rental Affordable Housing Covenant, Lot 3 Ingress & Egress Easement Agreement, and any other documents required hereunder, and delivered such documents into the Phase 2 Escrow.
(c) Review and Approval of Phase 2 Condition of Title. Developer shall have reviewed and approved the Phase 2 Condition of Title, as provided in Section 303 hereof.
(d) Phase 2 Title Policy. The Title Company shall, upon payment of Title Company’s regularly scheduled premium, be ready to issue the Phase 2 Title Policy upon recordation of the Grant Deed in accordance with Section 304 hereof. 306. Property Taxes and Assessments. Ad valorem taxes and assessments levied, assessed or imposed on the Phase 2 Parcels for any period prior to the Phase 2 Conveyance to Developer shall be borne by City. Ad valorem taxes and assessments levied, assessed or imposed on the Phase 2 Parcels for the period after the Phase 2 Conveyance thereof shall be borne by Developer.
307. Access to Phase 2 Parcels Prior to Phase 2 Conveyance. Prior to the Phase 2 Conveyance, City and Developer shall cooperate to enable representatives of Developer to obtain the right of access to all portions of the Phase 2 Parcels for the purpose of obtaining data and making surveys and tests, including the investigation of the soils and environmental condition of the Phase 2 Parcels. Developer agrees to notify City in writing at least twenty-four (24) hours prior to undertaking any studies or work upon the Phase 2 Parcels. City may require Developer to execute one or more right of entry agreements satisfactory to City’s legal counsel prior to commencing such studies or work. Any preliminary work by Developer shall be undertaken only after securing all required insurance under this Agreement and any and all necessary permits from the appropriate governmental agencies. Developer shall indemnify, defend, protect and hold City and City Parties harmless from any claims, losses, liabilities and damages arising out of the activities of Developer as set forth in this Section 307. In addition, in the event that Developer causes any damage to any portion of the Phase 2 Parcels or any existing improvements thereon, Developer shall promptly restore the Phase 2 Parcels and any existing improvements thereon as nearly as possible to the physical condition existing immediately prior to Developer’s entry onto the Phase 2 Parcels.
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308. Condition of Phase 2 Parcels.
308.1. Investigation of Phase 2 Parcels. During the term of the ENA, Developer was provided the right, at its sole cost and expense, to engage its own consultants as Developer deems necessary, to determine whether the Site, inclusive of the Phase 2 Parcels, is suitable for development of the Project Improvements, taking into account the geotechnical and soils conditions; the presence or absence of toxic or other hazardous materials; the zoning of the Site; the massing of the proposed Project Improvements; traffic, circulation and parking requirements, issues and constraints imposed on developments of this type that may affect development of the Site; assessment of major public and private utility capacities and connections for providing service to the Project Improvements; assessment of Site drainage; assessment of creek and wetland issues that may affect development of the Project Improvements; and assessment of any other environmental and regulatory factors that the Developer deems relevant. In accordance with the ENA, Developer notified City and does hereby confirm in this Agreement that, in the Developer’s judgment, based on its investigations and analyses, the Site, inclusive of the Phase 2 Parcels, is suitable for development.
Developer acknowledges that City makes no representations or warranties with respect to the accuracy, completeness, methodology of preparation or otherwise concerning the contents of any information or reports made available to Developer regarding any inspections, engineering, environmental or other matters pertaining to the Site, inclusive of the Phase 2 Parcels. Developer acknowledges that City has requested that Developer inspect fully all portions of the Site, inclusive of the Phase 2 Parcels, and investigate all matters relevant thereto and to rely solely upon the results of Developer’s own inspections or other information obtained or otherwise available to Developer, rather than any information that may have been provided by City to Developer.
308.2. No Further Warranties as to Phase 2 Parcels; Release of City.
Notwithstanding any provision of this Agreement to the contrary, the Phase 2 Parcels shall be conveyed by City to Developer in its “AS IS” condition, “WITH ALL FAULTS,” with no warranty expressed or implied by City regarding the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Site for the development purposes intended hereunder. To the extent authorized by contract or law, City shall assign to Developer all warranties and guaranties with respect to the Phase 2 Parcels, if any, that City may receive from the prior owner of the Phase 2 Parcels.
Developer hereby waives, releases and discharges forever City and City Parties from all present and future Claims, known and unknown, arising out of or in any way connected with the condition of the Phase 2 Parcels, any existing improvements thereon, or any Hazardous Materials on, under, in, about or emanating from the Phase 2 Parcels or any existing improvements thereon, however they came to be placed there.
Developer is aware of and familiar with the provisions of section 1542 of the California Civil Code which provides as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of
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executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” As such relates to this Section 308.2, Developer hereby waives and relinquishes all rights and benefits which it may have under section 1542 of the California Civil Code. ______________
Developer Initials
309. Hazardous Materials
309.1. Duty to Prevent Hazardous Materials Contamination. After the Phase 2 Conveyance, Developer shall take all reasonably necessary precautions to prevent the release of any Hazardous Materials onto or from the Phase 2 Parcels. Such precautions shall include compliance with all Laws with respect to Hazardous Materials. In addition, Developer shall install and utilize such equipment and implement and adhere to such procedures as are consistent with all Laws with respect to the disclosure, storage, use, removal and disposal of Hazardous Materials.
309.2. Environmental Inquiries. If a release of any Hazardous Materials onto or from any portion of the Phase 2 Parcels occurs at any time after the Phase 2 Conveyance, Developer shall, as soon as possible after the release, furnish to City a copy of any and all reports relating thereto and copies of all correspondence with governmental agencies relating to the release.
309.3. Environmental Indemnification. From and after the Phase 2 Conveyance, Developer shall indemnify, defend and hold City and City Parties harmless from and against any Claims resulting from, arising out of, or based upon the release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in, about, or emanating from, or the transportation of any such Hazardous Materials to or from, the Phase 2 Parcels in violation, or alleged violation, of any Laws, no matter when occurred, except that the foregoing indemnity obligation shall not apply to any matters that arise out of the active negligence or willful misconduct of City or City Parties. This indemnity shall include any damage, liability, fine, penalty, parallel indemnity, cost or expense arising from or out of any claim, action, suit or proceeding for bodily injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, trespass, contamination, leak, spill, release or other adverse effect on the environment.
400. DISPOSITION OF PHASE 3 PARCEL TO DEVELOPER
401. Purchase and Sale of Phase 3 Parcel. Developer shall purchase from City and City shall sell to Developer the Phase 3 Parcel in accordance with and subject to all of the terms, covenants and conditions of this Agreement. The purchase price for the Phase 3 Parcel shall be One Dollar ($1.00) (“Phase 3 Purchase Price”), which amount represents the fair reuse value of the Phase 3 Parcel. Developer shall pay the full amount of the Phase 3 Purchase Price in cash at the Phase 3 Closing.
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Alternatively, no less than thirty (30) calendar days following the City Manager’s approval of the Evidence of Financing for the Phase 3 Project, if Developer elects the Lot 15 Rental Option in accordance with Section 601, Developer may notify City in writing that it has elected to pay the Phase 3 Purchase Price in an amount equal to the fair market value of the Phase 3 Parcel, which notice shall be accompanied by an appraisal of the fair market value of the Phase 3 Parcel determined in accordance with the Appraisal Instructions, attached hereto as Attachment No. 13, for City’s review and approval. Developer shall pay the full amount of the Phase 3 Purchase Price, as determined in accordance with the appraisal approved by City, at the Phase 3 Closing as applicable to the Phase 3 Conveyance in accordance with the terms of a Promissory Note, substantially in the form attached hereto as Attachment No. 14, to be secured by a Deed of Trust in favor of City, substantially in the form attached hereto as Attachment No. 15, which Deed of Trust shall contain a “due-on sale or further transfer clause” and be subordinate to Developer’s construction and permanent financing for the Phase 3 Project (collectively, the “Phase 3 Carry-Back Financing”). The Phase 3 Carry-Back Financing, as evidenced by the Promissory Note, shall bear interest at the rate of zero percent (0%) per annum and the entire balance shall be due and payable on the fifty-fifth (55th) anniversary of the recordation of the Certificate of Completion for the Phase 1 Project. 402. Phase 3 Escrow. Within the time set forth in the Schedule of Performance, City shall open an escrow with Escrow Agent for the Phase 3 Conveyance to Developer (“Phase 3 Escrow”).
402.1. Phase 3 Closing Costs. Any and all usual fees, charges, and costs chargeable by Escrow Agent for the Phase 3 Escrow, including the costs of the premium for the Phase 3 Title Policy and any endorsements thereto, recording fees, and documentary transfer taxes, if any, due with respect to the Phase 3 Conveyance (collectively, the “Phase 3 Closing Costs”), shall be paid by Developer.
402.2. Supplemental Phase 3 Escrow Instructions. Prior to the Phase 3 Conveyance to Developer, the Parties shall submit appropriate supplemental escrow instructions to Escrow Agent for the close of the Phase 3 Escrow in accordance with the terms and conditions of this Agreement. The Parties shall use reasonable good faith efforts to close the Phase 3 Escrow in the shortest possible time. Insurance policies for fire or casualty are not to be transferred, and City will cancel its own policies, if any, after the Phase 3 Closing. All funds received in the Phase 3 Escrow shall be deposited in interest-bearing accounts for the benefit of the depositing Party in any state or national bank doing business in the State of California. All disbursements shall be made by check or wire transfer from such account. The Phase 3 Closing shall take place when both City’s and Developer’s Conditions Precedent to Phase 3 Closing as set forth in Section 405 hereof have been satisfied or waived by the Party benefitted by such condition. Escrow Agent is instructed to release City’s escrow closing and Developer’s escrow closing statements to the respective Parties.
402.3. Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
(a) Phase 3 Title Policy. Pay and charge Developer for the premium of the Phase 3 Title Policy as set forth in Section 404 hereof and any amount necessary to place title in the condition necessary to satisfy Section 403 of this Agreement.
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(b) Endorsements. Pay and charge Developer for any endorsements to the Phase 3 Title Policy that are requested by Developer as set forth in Section 404 hereof. (c) Fees. Pay and charge Developer for the Phase 3 Closing Costs. (d) Phase 3 Purchase Price; Phase 3 Carry-Back Financing.
Deliver the Phase 3 Purchase Price for the Phase 3 Parcels to City, or, if Developer elects Phase 3 Carry-Back Financing in accordance with Section 401 of this Agreement, deliver the Promissory Note to City and record the Deed of Trust.
(e) Grant Deed. Record the Grant Deed conveying fee title to the Phase 3 Parcels to Developer.
(f) Rental Affordable Housing Covenant. Record a Rental Affordable Housing Covenant against Lot 15, if Developer elects the Lot 15 Rental Option in accordance with Section 601.
(g) Subordination Agreement – Rental Affordable Units. Record a Subordination Agreement – Rental Affordable Units against Lot 15, if Developer elects the Lot 15 Rental Option in accordance with Section 601.
(h) Owner-Occupied Affordable Housing Covenant. Record an Owner-Occupied Affordable Housing Covenant against Lot 15, if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601.
(i) Subordination Agreement – Owner-Occupied Affordable Units. Record a Subordination Agreement – Owner-Occupied Affordable Units against Lot 15, if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601. (j) Acknowledgment of CC&Rs. Record the Acknowledgment of CC&Rs against the Phase 3 Parcel.
(k) Disbursement. Disburse funds and deliver and record the Grant Deed, Acknowledgment of CC&Rs, Deed of Trust – Phase 3 Carry-Back Financing, Rental Affordable Housing Covenant and Subordination Agreement – Rental Affordable Units, if Developer elects the Lot 15 Rental Option in accordance with Section 601, Owner-Occupied Affordable Housing Covenant and Subordination Agreement – Owner-Occupied Affordable Units, if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601, when both Developer’s and City’s Conditions Precedent to Phase 3 Closing have been fulfilled or waived in writing by Developer and/or City, as applicable. (l) Other Actions. Do such other actions as necessary, including obtaining the Phase 3 Title Policy, to fulfill its obligations under this Agreement. (m) Additional Documents. Direct City and Developer to execute and deliver any instrument, affidavit, and statement, and to perform any act, reasonably necessary to comply with the provisions of FIRPTA and any similar state act and regulations promulgated thereunder. City shall execute a Certificate of Non-Foreign Status by individual transferor
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and/or a Certification of Compliance with Real Estate Reporting Requirement of the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to be supplied by Escrow Agent. (n) Closing Statement. Prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, tax withholding forms including an IRS 1099-S form, and be responsible for withholding taxes, if any such forms are provided for or required by law.
402.4. Phase 3 Closing. The Phase 3 Conveyance of the Phase 3 Parcel by City to Developer shall take place within ten (10) days after the satisfaction or waiver, as applicable, of all of City’s and Developer’s Conditions Precedent to Phase 3 Closing as set forth in Section 405, below. “Phase 3 Closing” shall mean the time and day the Grant Deed effectuating the Phase 3 Conveyance is filed for record in the Official Records. The “Phase 3 Closing Date” shall mean the date on which the Phase 3 Closing occurs. Notwithstanding anything herein to the contrary, if, for any reason, the Phase 3 Closing has not occurred within the later of (i) five (5) years of the Effective Date, or (ii) ten (10) years of the Effective Date if construction of the Phase 1 Project has commenced on or before five (5) years of the Effective Date (“Phase 3 Outside Date”), this Agreement shall automatically terminate and, thereafter, neither Party shall have any further rights or obligations hereunder except for those provisions which by their terms survive expiration or termination of this Agreement. The foregoing notwithstanding, though the Phase 3 Outside Date is not subject to extension due to an enforced delay, the Phase 3 Outside Date may be extended with the approval of the City Council in accordance with Section 1002. 402.5. Phase 3 Closing Procedure. Escrow Agent shall close the Phase Escrow for the Phase 3 Parcel as follows:
(a) Grant Deed. Record the Grant Deed conveying fee title to the Phase 3 Parcel to Developer in the Official Records, with instructions to deliver the Grant Deed to Developer.
(b) Acknowledgment of CC&Rs. Record the Acknowledgment of CC&Rs against the Phase 3 Parcel in the Official Records immediately following recordation of the Grant Deed.
(c) Rental Affordable Housing Covenant. Record a Rental Affordable Housing Covenant against Lot 15, if Developer elects the Lot 15 Rental Option in accordance with Section 601, in the Official Records immediately following recordation of the Acknowledgment of CC&Rs.
(d) Subordination Agreement – Rental Affordable Units. Record a Subordination Agreement – Rental Affordable Units against Lot 15, if Developer elects the Lot 15 Rental Option in accordance with Section 601, in the Official Records immediately following recordation of the Rental Affordable Housing Covenant.
(e) Owner-Occupied Affordable Housing Covenant. Record an Owner-Occupied Affordable Housing Covenant against Lot 15, if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601, in the Official Records immediately following recordation of the Acknowledgment of CC&Rs.
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(f) Subordination Agreement – Owner-Occupied Affordable Units. Record a Subordination Agreement – Owner-Occupied Affordable Units against Lot 15, if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601, in the Official Records immediately following recordation of an Owner-Occupied Affordable Housing Covenant.
(g) Phase 3 Purchase Price; Phase 3 Carry-Back Financing.
Deliver the Phase 3 Purchase Price for the Phase 3 Parcel, or, if Developer elects Phase 3 CarryBack Financing in accordance with Section 401, deliver the Promissory Note evidencing the Phase 3 Carry-Back Financing to City.
(h) Deed of Trust - Phase 3 Carry-Back Financing. If Developer elects Phase 3 Carry-Back Financing in accordance with Section 401, record the Deed of Trust against the Phase 3 Parcel immediately following recordation of the Subordination Agreement – Rental Affordable Units or Subordination Agreement – Owner-Occupied Affordable Units. (i) Phase 3 Title Policy. Instruct the Title Company to deliver the Phase 3 Title Policy to Developer.
(j) Informational Reports. File any informational reports required by Internal Revenue Code section 6045(e), as amended, and any other applicable requirements. (k) FIRPTA Certificate. Deliver the FIRPTA Certificate, if any, to Developer.
(l) Accounting. Forward to both Developer and City a separate accounting of all funds received from and disbursed to each Party and conformed copies of all executed and recorded or filed documents deposited into Escrow, with such recording and filing date and information endorsed thereon.
403. Review of Title. City shall cause Title Company to deliver to Developer and City a standard preliminary title report with respect to the title to the Phase 3 Parcel (“Phase 3 Title Report”), together with legible copies of the documents underlying the exceptions set forth in the Phase 3 Title Report (“Phase 3 Exceptions”), within the time set forth in the Schedule of Performance. In connection with the Phase 1 Closing, Developer caused a survey of the Site to be prepared by a licensed civil engineer, certified to Title Company, Developer and City, sufficient to file and record the Final Map in the Official Records and enable Title Company to issue the Title Policies. Any matter on such survey encumbering the Phase 3 Parcel shall be included in the Phase 3 Exceptions subject to Developer’s review and approval under this Section 403. Developer shall have the right to reasonably approve or disapprove the Phase 3 Exceptions; provided, however, Developer hereby approves the following Phase 3 Exceptions which shall be referred to herein as the “Phase 3 Pre-Approved Exceptions”:
(a) The lien of any non-delinquent property taxes and assessments; (b) Any incidental easements or other matters affecting title which do not preclude Developer’s intended use of the Phase 3 Parcel;
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(c) Matters reflected on the Final Map.
(d) The conditions, including repurchase option, set forth in the Grant Deed;
(e) The Memorandum of Agreement;
(f) The Rental Affordable Housing Covenant, if Developer elects the Lot 15 Rental Option in accordance with Section 601;
(g) The Subordination Agreement – Rental Affordable Units, if Developer elects the Lot 15 Rental Option in accordance with Section 601; (h) The Owner-Occupied Affordable Housing Covenant, if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601; (i) The Subordination Agreement – Owner-Occupied Affordable Units, if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601; (j) The CC&Rs and Acknowledgment of CC&Rs.
(k) The Deed of Trust, if Developer elects Phase 3 Carry-Back Financing;
(l) Public Utility Easement dated September 26, 2022, recorded in Official Records on September 30, 2022, Document No. 2022063604, affecting Lot 15; (m) Matters created by, through, or under Developer;
(n) Such other exceptions to title as may hereafter be mutually approved by City and Developer.
Within the time set forth in the Schedule of Performance, Developer shall give written Notice to City, Title Company and Escrow Agent of Developer’s approval or disapproval of any of the Phase 3 Exceptions (except the Phase 3 Pre-Approved Exceptions). Developer’s failure to give written disapproval of the Phase 3 Exceptions within such time limit shall be deemed approval of the Phase 3 Exceptions. If Developer notifies City of its disapproval of any Phase 3 Exceptions, City shall have the right, but not the obligation, to cause any disapproved Phase 3 Exceptions to be removed within sixty (60) days after receiving written Notice of Developer’s disapproval or provide assurances satisfactory to Developer that such Phase 3 Exceptions will be removed on or before the Phase 3 Closing. City’s failure to notify Developer within such sixty (60) day period shall be deemed an election not to remove the disapproved Phase 3 Exceptions.
City’s election not to remove any disapproved Phase 3 Exceptions shall not be a Default under the provisions of this Agreement. If City cannot or does not elect to remove any of the disapproved Phase 3 Exceptions within such sixty (60) day period, Developer shall have ten (10) days after the expiration of such sixty (60) day period to either give City written Notice that Developer elects, in its sole discretion, to proceed with the purchase of the Phase 3 Parcel subject to the disapproved Phase 3 Exceptions or to give City written Notice that Developer elects to
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terminate its right to acquire the Phase 3 Parcel and develop, construct and install the Phase 3 Project pursuant to this Agreement. The Phase 3 Exceptions to title approved by Developer as provided herein shall hereinafter be referred to as the “Phase 3 Condition of Title.” If any Phase 3 Exceptions other than Phase 3 Pre-Approved Exceptions are reported by the Title Company after Developer has approved the Phase 3 Condition of Title for the Phase 3 Parcel pursuant to the foregoing procedures, then any such new Phase 3 Exception shall be subject to the same procedures for review and approval set forth above for Phase 3 Exceptions constituting the Phase 3 Condition of Title.
404. Title Insurance. Concurrently with recordation of the Grant Deed conveying to Developer title to the Phase 3 Parcel, the Title Company shall issue to Developer an ALTA owner’s policy of title insurance (“Phase 3 Title Policy”), together with such endorsements as are reasonably requested by Developer, insuring that title to Developer’s interest in the Phase 3 Parcel acquired as of the date of issuance of the Phase 3 Title Policy is vested in Developer.
Title Company shall provide City with a copy of the Phase 3 Title Policy. The Phase 3 Title Policy shall be in the amount of Phase 3 Purchase Price. The premium for the Phase 3 Title Policy (and City duplicate Phase 3 Title Policy), plus any additional costs, including the cost of any survey and any endorsements requested by Developer shall be borne by Developer. 405. Conditions of Phase 3 Closing. The Phase 3 Closing is conditioned upon the satisfaction of the following terms and conditions within the times designated below:
405.1. City’s Conditions of Phase 3 Closing. City’s obligation to proceed with the Phase 3 Closing of the Phase 3 Conveyance is subject to the fulfillment or waiver by City of each and all of the conditions precedent described below (“City’s Conditions Precedent to Phase 3 Closing”), which are solely for the benefit of City, and which shall be fulfilled or waived within the time periods provided for herein:
(a) No Default. Prior to the Phase 3 Closing, Developer shall not be in Default under the terms of this Agreement, no event shall have occurred which with the passage of time or giving of notice or both would constitute a Default hereunder, and all representations and warranties of Developer contained herein shall be true and correct in all material respects.
(b) Phase 1 Closing. Construction of the Phase 1 Project has commenced.
(c) Execution of Documents. Developer shall have (i) executed and acknowledged the Grant Deed, Acknowledgment of CC&Rs, Rental Affordable Housing Covenant (if Developer elects the Lot 15 Rental Option in accordance with Section 601), OwnerOccupied Affordable Housing Covenant (if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601), and any other documents required hereunder and delivered such documents into the Phase 3 Escrow, and (ii) caused its lienholders to execute and acknowledge a Subordination Agreement – Rental Affordable Units, if Developer elects the Lot 15 Rental Option in accordance with Section 601, or Subordination Agreement – Owner-Occupied Affordable Units, if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601, and deliver such document into the Phase 3 Escrow.
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(d) Phase 3 Purchase Price and Phase 3 Closing Costs. Developer shall have delivered the Phase 3 Closing Costs and Phase 3 Purchase Price, or, if applicable, the Promissory Note and Deed of Trust in connection with the Phase 3 Carry-Back Financing, into the Phase 3 Escrow.
(e) Evidence of Financing. City shall have approved Developer’s Evidence of Financing for the Phase 3 Project as provided in Section 801 hereof. (f) Insurance. Developer shall have provided proof of insurance for the Phase 3 Project as required by Section 806 hereof.
(g) General Contractor/Construction Contract. City shall have approved Developer’s general contractor and the Construction Contract for the Phase 3 Project as provided in Section 605.1 hereof.
(h) Construction Loan Closing. Developer’s construction loan(s) for the Phase 3 Project shall have closed or shall be ready to close concurrently with the Phase 3 Closing.
(i) Permits and Land Use Approvals. Developer shall have obtained all City and other governmental permits and land use approvals required pursuant to Section 602 hereof and all other entitlements required for the Phase 3 Project, and the period for administrative and legal challenge to such land use approvals and entitlements shall have expired and City shall be ready to issue building permits for the construction of the Phase 3 Project upon the payment of the applicable fees by Developer.
(j) Payment of Development Fees. Developer shall have paid all or be current on payments to City of all development fees due City pursuant to the Project Approvals to enable Developer to commence development and construction of the Phase 3 Project.
(k) Construction Drawings. City shall have reviewed and approved the Construction Drawings for the Phase 3 Project as provided in Section 604.4 hereof. 405.2. Developer’s Conditions of Phase 3 Closing. Developer’s obligation to proceed with the Phase 3 Closing of the Phase 3 Conveyance is subject to the fulfillment or waiver by Developer of each and all of the conditions precedent described below (“Developer’s Conditions Precedent to Phase 3 Closing”), which are solely for the benefit of Developer, and which shall be fulfilled or waived within the time periods provided for herein:
(a) No Default. Prior to the Phase 3 Closing, City shall not be in Default of any of its obligations under the terms of this Agreement, no event shall have occurred which with the passage of time or giving of notice or both would constitute a Default hereunder, and all representations and warranties of City contained herein shall be true and correct in all material respects.
(b) Execution of Documents. City shall have authorized, executed and acknowledged the Grant Deed, Rental Affordable Housing Covenant (if Developer elects the
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Lot 15 Rental Option in accordance with Section 601), Owner-Occupied Affordable Housing Covenant (if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601), and any other documents required hereunder, and delivered such documents into the Phase 3 Escrow.
(c) Review and Approval of Phase 3 Condition of Title. Developer shall have reviewed and approved the Phase 3 Condition of Title, as provided in Section 403 hereof.
(d) Phase 3 Title Policy. The Title Company shall, upon payment of Title Company’s regularly scheduled premium, be ready to issue the Phase 3 Title Policy upon recordation of the Grant Deed in accordance with Section 504 hereof. 406. Property Taxes and Assessments. Ad valorem taxes and assessments levied, assessed or imposed on the Phase 3 Parcel for any period prior to the Phase 3 Conveyance to Developer shall be borne by City. Ad valorem taxes and assessments levied, assessed or imposed on the Phase 3 Parcel for the period after the Phase 3 Conveyance thereof shall be borne by Developer.
407. Access to Phase 3 Parcel Prior to Phase 3 Conveyance. Prior to the Phase 3 Conveyance, City and Developer shall cooperate to enable representatives of Developer to obtain the right of access to all portions of the Phase 3 Parcel for the purpose of obtaining data and making surveys and tests, including the investigation of the soils and environmental condition of the Phase 3 Parcel. Developer agrees to notify City in writing at least twenty-four (24) hours prior to undertaking any studies or work upon the Phase 3 Parcel. City may require Developer to execute one or more right of entry agreements satisfactory to City’s legal counsel prior to commencing such studies or work. Any preliminary work by Developer shall be undertaken only after securing all required insurance under this Agreement and any and all necessary permits from the appropriate governmental agencies. Developer shall indemnify, defend, protect and hold City and City Parties harmless from any claims, losses, liabilities and damages arising out of the activities of Developer as set forth in this Section 407. In addition, in the event that Developer causes any damage to any portion of the Phase 3 Parcel or any existing improvements thereon, Developer shall promptly restore the Phase 3 Parcel and any existing improvements thereon as nearly as possible to the physical condition existing immediately prior to Developer’s entry onto the Phase 3 Parcel.
408. Condition of Phase 3 Parcel.
408.1. Investigation of Phase 3 Parcel. During the term of the ENA, Developer was provided the right, at its sole cost and expense, to engage its own consultants as Developer deems necessary, to determine whether the Site, inclusive of the Phase 3 Parcel, is suitable for development of the Project Improvements, taking into account the geotechnical and soils conditions; the presence or absence of toxic or other hazardous materials; the zoning of the Site; the massing of the proposed Project Improvements; traffic, circulation and parking requirements, issues and constraints imposed on developments of this type that may affect development of the Site; assessment of major public and private utility capacities and connections for providing service to the Project Improvements; assessment of Site drainage; assessment of creek and
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wetland issues that may affect development of the Project Improvements; and assessment of any other environmental and regulatory factors that the Developer deems relevant. In accordance with the ENA, Developer notified City and does hereby confirm in this Agreement that, in the Developer’s judgment, based on its investigations and analyses, the Site, inclusive of the Phase 3 Parcel, is suitable for development.
Developer acknowledges that City makes no representations or warranties with respect to the accuracy, completeness, methodology of preparation or otherwise concerning the contents of any information or reports made available to Developer regarding any inspections, engineering, environmental or other matters pertaining to the Site, inclusive of the Phase 3 Parcel. Developer acknowledges that City has requested that Developer inspect fully all portions of the Site, inclusive of the Phase 3 Parcel, and investigate all matters relevant thereto and to rely solely upon the results of Developer’s own inspections or other information obtained or otherwise available to Developer, rather than any information that may have been provided by City to Developer.
408.2. No Further Warranties as to Phase 3 Parcel; Release of City.
Notwithstanding any provision of this Agreement to the contrary, the Phase 3 Parcel shall be conveyed by City to Developer in its “AS IS” condition, “WITH ALL FAULTS,” with no warranty expressed or implied by City regarding the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Phase 3 Parcel for the development purposes intended hereunder. To the extent authorized by contract or law, City shall assign to Developer all warranties and guaranties with respect to the Phase 3 Parcel, if any, that City may receive from the prior owner of the Phase 3 Parcel.
Developer hereby waives, releases and discharges forever City and City Parties from all present and future Claims, known and unknown, arising out of or in any way connected with the condition of the Phase 3 Parcel or the existing improvements thereon or any Hazardous Materials on, under, in, about or emanating from the Phase 3 Parcel or any existing improvements thereon, however they came to be placed there.
Developer is aware of and familiar with the provisions of section 1542 of the California Civil Code which provides as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” As such relates to this Section 408.2, Developer hereby waives and relinquishes all rights and benefits which it may have under section 1542 of the California Civil Code. ______________
Developer Initials
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409. Hazardous Materials.
409.1. Duty to Prevent Hazardous Materials Contamination. After the Phase 3 Conveyance, Developer shall take all reasonably necessary precautions to prevent the release of any Hazardous Materials onto or from the Phase 3 Parcel. Such precautions shall include compliance with all Laws with respect to Hazardous Materials. In addition, Developer shall install and utilize such equipment and implement and adhere to such procedures as are consistent with all Laws with respect to the disclosure, storage, use, removal and disposal of Hazardous Materials.
409.2. Environmental Inquiries. If a release of any Hazardous Materials onto or from any portion of the Phase 3 Parcel occurs at any time after the Phase 3 Conveyance, Developer shall, as soon as possible after the release, furnish to City a copy of any and all reports relating thereto and copies of all correspondence with governmental agencies relating to the release.
409.3. Environmental Indemnification. From and after the Phase 3 Conveyance, Developer shall indemnify, defend and hold City and City Parties harmless from and against any Claims resulting from, arising out of, or based upon the release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in, about, or emanating from, or the transportation of any such Hazardous Materials to or from, the Phase 3 Parcel in violation, or alleged violation, of any Laws, no matter when occurred, except that the foregoing indemnity obligation shall not apply to any matters that arise out of the active negligence or willful misconduct of City or City Parties. This indemnity shall include any damage, liability, fine, penalty, parallel indemnity, cost or expense arising from or out of any claim, action, suit or proceeding for bodily injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, trespass, contamination, leak, spill, release or other adverse effect on the environment.
500. CITY DISPOSITION OF PHASE 4 PARCELS TO DEVELOPER
501. Purchase and Sale of Phase 4 Parcels. Developer shall purchase from City and City shall sell to Developer the Phase 4 Parcels in accordance with and subject to all of the terms, covenants and conditions of this Agreement. The purchase price for the Phase 4 Parcels shall One Dollar ($1.00) (“Phase 4 Purchase Price”), which amount represents the fair reuse value of the Phase 4 Parcels. Developer shall pay the full amount of the Phase 4 Purchase Price in cash at the Phase 4 Closing as applicable to the Phase 4 Conveyance. 502. Phase 4 Escrow. Within the time set forth in the Schedule of Performance, City shall open an escrow with Escrow Agent for the Phase 4 Conveyance to Developer (“Phase 4 Escrow”).
502.1. Phase 4 Closing Costs. Any and all usual fees, charges, and costs chargeable by Escrow Agent for the Phase 4 Escrow, including the costs of the premium for the Phase 4 Title Policy and any endorsements thereto, recording fees, and documentary transfer
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taxes, if any, due with respect to a Phase 4 Conveyance (collectively, the “Phase 4 Closing Costs”), shall be paid by Developer.
502.2. Supplemental Phase 4 Escrow Instructions. Prior to the Phase 4 Conveyance to Developer, the Parties shall submit appropriate supplemental escrow instructions to Escrow Agent for the close of the Phase 4 Escrow in accordance with the terms and conditions of this Agreement. The Parties shall use reasonable good faith efforts to close the Phase 4 Escrow in the shortest possible time. Insurance policies for fire or casualty are not to be transferred, and City will cancel its own policies, if any, after the Phase 4 Closing. All funds received in the Phase 4 Escrow shall be deposited in interest-bearing accounts for the benefit of the depositing Party in any state or national bank doing business in the State of California. All disbursements shall be made by check or wire transfer from such account. The Phase 4 Closing shall take place when both City’s and Developer’s Conditions Precedent to Phase 4 Closing as set forth in Section 505 hereof have been satisfied or waived by the Party benefitted by such condition. Escrow Agent is instructed to release City’s escrow closing and Developer’s escrow closing statements to the respective Parties.
502.3. Authority of Escrow Agent. Escrow Agent is authorized to, and shall:
(a) Phase 4 Title Policy. Pay and charge Developer for the premium of the Phase 4 Title Policy as set forth in Section 504 hereof and any amount necessary to place title in the condition necessary to satisfy Section 503 of this Agreement. (b) Endorsements. Pay and charge Developer for any endorsements to the Phase 4 Title Policy that are requested by Developer as set forth in Section 504 hereof. (c) Fees. Pay and charge Developer for the Phase 4 Closing Costs. (d) Phase 4 Purchase Price. Deliver the Phase 4 Purchase Price for the Phase 4 Parcels to City.
(e) Grant Deed. Record the Grant Deed conveying fee title to the Phase 4 Parcels to Developer.
(f) Owner-Occupied Affordable Housing Covenant. Record the Owner-Occupied Affordable Housing Covenant against the Townhome Lots. (g) Subordination Agreement – Owner-Occupied Affordable Units. Record the Subordination Agreement – Owner-Occupied Affordable Units against the Townhome Lots.
(h) Acknowledgment of CC&Rs. Record the Acknowledgment of CC&Rs against the Townhome Lots.
(i) Disbursement. Disburse funds and deliver and record the Grant Deed, Acknowledgment of CC&Rs, Owner-Occupied Affordable Housing Covenant, Subordination Agreement – Owner-Occupied Affordable Units, when both Developer’s and
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City’s Conditions Precedent to Phase 4 Closing have been fulfilled or waived in writing by Developer and/or City, as applicable.
(j) Other Actions. Do such other actions as necessary, including obtaining the Phase 4 Title Policy, to fulfill its obligations under this Agreement. (k) Additional Documents. Direct City and Developer to execute and deliver any instrument, affidavit, and statement, and to perform any act, reasonably necessary to comply with the provisions of FIRPTA and any similar state act and regulations promulgated thereunder. City shall execute a Certificate of Non-Foreign Status by individual transferor and/or a Certification of Compliance with Real Estate Reporting Requirement of the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to be supplied by Escrow Agent. (l) Closing Statement. Prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, tax withholding forms including an IRS 1099-S form, and be responsible for withholding taxes, if any such forms are provided for or required by law.
502.4. Phase 4 Closing. The Phase 4 Conveyance by City to Developer shall take place within ten (10) days after the satisfaction or waiver, as applicable, of all of City’s and Developer’s Conditions Precedent to Phase 4 Closing as set forth in Section 505 below. “Phase 4 Closing” shall mean the time and day the Grant Deed effectuating the Phase 4 Conveyance is filed for record in the Official Records. The “Phase 4 Closing Date” shall mean the date on which the Phase 4 Closing occurs. Notwithstanding anything herein to the contrary, if, for any reason, the Phase 4 Closing has not occurred within the later of (i) five (5) years of the Effective Date, or (ii) ten (10) years of the Effective Date if construction of the Phase 1 Project has commenced on or before five (5) years of the Effective Date (“Phase 4 Outside Date”), this Agreement shall automatically terminate and, thereafter, neither Party shall have any further rights or obligations hereunder except for those provisions which by their terms survive expiration or termination of this Agreement. The foregoing notwithstanding, though the Phase 4 Outside Date is not subject to extension due to an enforced delay, the Phase 4 Outside Date may be extended with the approval of the City Council in accordance with Section 1002. 502.5. Phase 4 Closing Procedure. Escrow Agent shall close the Phase 4 Escrow for the Phase 4 Parcels as follows:
(a) Grant Deed. Record the Grant Deed conveying fee title to the Phase 4 Parcels to Developer in the Official Records, with instructions to deliver the Grant Deed to Developer.
(b) Acknowledgment of CC&Rs. Record the Acknowledgment of CC&Rs against the Phase 4 Parcels in the Official Records, immediately following recordation of the Grant Deed.
(c) Owner-Occupied Affordable Housing Covenant. Record the Owner-Occupied Affordable Housing Covenant against the Townhome Lots, immediately following recordation of the Acknowledgment of CC&Rs.
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(d) Subordination Agreement – Owner-Occupied Affordable Units. Record the Subordination Agreement – Owner-Occupied Affordable Units against the Townhome Lots, immediately following recordation of the Owner-Occupied Affordable Housing Covenant.
(e) Phase 4 Purchase Price. Deliver the Phase 4 Purchase Price for the Phase 4 Parcels.
(f) Phase 4 Title Policy. Instruct the Title Company to deliver the Phase 4 Title Policy to Developer.
(g) Informational Reports. File any informational reports required by Internal Revenue Code section 6045(e), as amended, and any other applicable requirements. (h) FIRPTA Certificate. Deliver the FIRPTA Certificate, if any, to Developer.
(i) Accounting. Forward to both Developer and City a separate accounting of all funds received from and disbursed to each Party and conformed copies of all executed and recorded or filed documents deposited into Escrow, with such recording and filing date and information endorsed thereon.
503. Review of Title. City shall cause Title Company to deliver to Developer and City a standard preliminary title report with respect to the title to the Phase 4 Parcels (“Phase 4 Title Report”), together with legible copies of the documents underlying the exceptions set forth in the Phase 4 Title Report (“Phase 4 Exceptions”), within the time set forth in the Schedule of Performance. In connection with the Phase 1 Closing, Developer caused a survey of the Site to be prepared by a licensed civil engineer, certified to Title Company, Developer and City, sufficient to file and record the Final Map in the Official Records and enable Title Company to issue the Title Policies. Any matter on such survey encumbering the Phase 4 Parcels shall be included in the Phase 4 Exceptions subject to Developer’s review and approval under this Section 503. Developer shall have the right to reasonably approve or disapprove the Phase 4 Exceptions; provided, however, Developer hereby approves the following Phase 4 Exceptions which shall be referred to herein as the “Phase 4 Pre-Approved Exceptions”:
(a) The lien of any non-delinquent property taxes and assessments; (b) Any incidental easements or other matters affecting title which do not preclude Developer’s intended use of the Phase 4 Parcels; (c) Matters reflected on the Final Map.
(d) The conditions, including repurchase option, set forth in the Grant Deed;
(e) The Memorandum of Agreement;
(f) The Owner-Occupied Affordable Housing Covenant;
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(g) The Subordination Agreement – Owner-Occupied Affordable Units;
(h) The CC&Rs and Acknowledgment of CC&Rs;
(i) Public Utility Easement dated September 26, 2022, recorded in Official Records on September 30, 2022, Document No. 2022063604, affecting the Townhome Lots;
(j) Matters created by, through, or under Developer;
(k) Such other exceptions to title as may hereafter be mutually approved by City and Developer.
Within the time set forth in the Schedule of Performance, Developer shall give written Notice to City, Title Company and Escrow Agent of Developer’s approval or disapproval of any of the Phase 4 Exceptions (except the Phase 4 Pre-Approved Exceptions). Developer’s failure to give written disapproval of the Phase 4 Exceptions within such time limit shall be deemed approval of the Phase 4 Exceptions. If Developer notifies City of its disapproval of any Phase 4 Exceptions, City shall have the right, but not the obligation, to cause any disapproved Phase 4 Exceptions to be removed within sixty (60) days after receiving written Notice of Developer’s disapproval or provide assurances satisfactory to Developer that such Phase 4 Exceptions will be removed on or before the Phase 4 Closing. City’s failure to notify Developer within such sixty (60) day period shall be deemed an election not to remove the disapproved Phase 4 Exceptions.
City’s election not to remove any disapproved Phase 4 Exceptions shall not be a Default under the provisions of this Agreement. If City cannot or does not elect to remove any of the disapproved Phase 4 Exceptions within such sixty (60) day period, Developer shall have ten (10) days after the expiration of such sixty (60) day period to either give City written Notice that Developer elects, in its sole discretion, to proceed with the purchase of the Phase 4 Parcels subject to the disapproved Phase 4 Exceptions or to give City written Notice that Developer elects to terminate its right to acquire the Phase 4 Parcels and develop, construct and install the Phase 4 Project pursuant to this Agreement. The Phase 4 Exceptions to title approved by Developer as provided herein shall hereinafter be referred to as the “Phase 4 Condition of Title.” If any Phase 4 Exceptions other than Phase 4 Pre-Approved Exceptions are reported by the Title Company after Developer has approved the Phase 4 Condition of Title for the Phase 4 Parcels pursuant to the foregoing procedures, then any such new Phase 4 Exception shall be subject to the same procedures for review and approval set forth above for Phase 4 Exceptions constituting the Phase 4 Condition of Title.
504. Title Insurance. Concurrently with recordation of the Grant Deed conveying to Developer title to the Phase 4 Parcels, the Title Company shall issue to Developer an ALTA owner’s policy of title insurance (“Phase 4 Title Policy”), together with such endorsements as are reasonably requested by Developer, insuring that title to Developer’s interest in the Phase 4 Parcels acquired as of the date of issuance of the Phase 4 Title Policy is vested in Developer.
Title Company shall provide City with a copy of the Phase 4 Title Policy. The Phase 4 Title Policy shall be in the amount of the Phase 4 Purchase Price. The premium for the Phase 4 Title
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Policy (and City duplicate Phase 4 Title Policy), plus any additional costs, including the cost of and survey or endorsements requested by Developer shall be borne by Developer. 505. Conditions of Phase 4 Closing. The Phase 4 Closing is conditioned upon the satisfaction of the following terms and conditions within the times designated below:
505.1. City’s Conditions of Phase 4 Closing. City’s obligation to proceed with the Phase 4 Closing of the Phase 4 Conveyance is subject to the fulfillment or waiver by City of each and all of the conditions precedent described below (“City’s Conditions Precedent to Phase 4 Closing”), which are solely for the benefit of City, and which shall be fulfilled or waived within the time periods provided for herein:
(a) No Default. Prior to the Phase 4 Closing, Developer shall not be in Default under the terms of this Agreement, no event shall have occurred which with the passage of time or giving of notice or both would constitute a Default hereunder, and all representations and warranties of Developer contained herein shall be true and correct in all material respects.
(b) Phase 1 Closing. Construction of the Phase 1 Project has commenced.
(c) Execution of Documents. Developer shall have (i) executed and acknowledged the Grant Deed, Acknowledgment of CC&Rs, Owner-Occupied Affordable Housing Covenant, and any other documents required hereunder and delivered such documents into Escrow, and (ii) caused its lienholders to execute and acknowledge the Subordination Agreement – Owner-Occupied Affordable Units and deliver such document into the Phase 4 Escrow.
(d) Phase 4 Purchase Price and Phase 4 Closing Costs. Developer shall have delivered the Phase 4 Closing Costs and Phase 4 Purchase Price into the Phase 4 Escrow.
(e) Evidence of Financing. City shall have approved Developer’s Evidence of Financing for the Phase 4 Project as provided in Section 801 hereof. (f) Insurance. Developer shall have provided proof of insurance for the Phase 4 Project as required by Section 606 hereof.
(g) General Contractor/Construction Contract. City shall have approved Developer’s general contractor and the Construction Contract for the Phase 4 Project as provided in Section 605.1 hereof.
(h) Construction Loan Closing. Developer’s construction loan(s) for the Phase 4 Project shall have closed or shall be ready to close concurrently with the Phase 4 Closing.
(i) Permits and Land Use Approvals. Developer shall have obtained all City and other governmental permits and land use approvals required pursuant to
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Section 602 hereof and all other entitlements required for the Phase 4 Project, and the period for administrative and legal challenge to such land use approvals and entitlements shall have expired and City shall be ready to issue building permits for the construction of the Phase 4 Project upon the payment of the applicable fees by Developer.
(j) Payment of Development Fees. Developer shall have paid all or be current on payments to City of all development fees due City pursuant to the Project Approvals to enable Developer to commence development and construction of the Phase 4 Project.
(k) Construction Drawings. City shall have reviewed and approved the Construction Drawings for the Phase 4 Project as provided in Section 604.4hereof. 505.2. Developer’s Conditions of Phase 4 Closing. Developer’s obligation to proceed with the Phase 4 Closing of the Phase 4 Conveyance is subject to the fulfillment or waiver by Developer of each and all of the conditions precedent described below (“Developer’s Conditions Precedent to Phase 4 Closing”), which are solely for the benefit of Developer, and which shall be fulfilled or waived within the time periods provided for herein:
(a) No Default. Prior to the Phase 4 Closing, City shall not be in Default of any of its obligations under the terms of this Agreement, no event shall have occurred which with the passage of time or giving of notice or both would constitute a Default hereunder, and all representations and warranties of City contained herein shall be true and correct in all material respects.
(b) Execution of Documents. City shall have authorized, executed and acknowledged the Grant Deed, Owner-Occupied Affordable Housing Covenant, and any other documents required hereunder, and delivered such documents into Escrow. (c) Review and Approval of Phase 4 Condition of Title. Developer shall have reviewed and approved the Phase 4 Condition of Title, as provided in Section 503 hereof.
(d) Phase 4 Title Policy. The Title Company shall, upon payment of Title Company’s regularly scheduled premium, be ready to issue the Phase 4 Title Policy upon recordation of the Grant Deed in accordance with Section 504 hereof. 506. Property Taxes and Assessments. Ad valorem taxes and assessments levied, assessed or imposed on the Phase 4 Parcels for any period prior to the Phase 4 Conveyance to Developer shall be borne by City. Ad valorem taxes and assessments levied, assessed or imposed on the Phase 4 Parcels for the period after the Phase 4 Conveyance thereof shall be borne by Developer.
507. Access to Phase 4 Parcels Prior to Phase 4 Conveyance. Prior to the Phase 4 Conveyance, City and Developer shall cooperate to enable representatives of Developer to obtain the right of access to all portions of the Phase 4 Parcels for the purpose of obtaining data and making surveys and tests, including the investigation of the soils and environmental condition of the Phase 4 Parcels. Developer agrees to notify City in writing at least twenty-four (24) hours
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prior to undertaking any studies or work upon the Phase 4 Parcels. City may require Developer to execute one or more right of entry agreements satisfactory to City’s legal counsel prior to commencing such studies or work. Any preliminary work by Developer shall be undertaken only after securing all required insurance under this Agreement and any and all necessary permits from the appropriate governmental agencies. Developer shall indemnify, defend, protect and hold City and City Parties harmless from any claims, losses, liabilities and damages arising out of the activities of Developer as set forth in this Section 507. In addition, in the event that Developer causes any damage to any portion of the Phase 4 Parcels or any existing improvements thereon, Developer shall promptly restore the Phase 4 Parcels and any existing improvements thereon as nearly as possible to the physical condition existing immediately prior to Developer’s entry onto the Phase 4 Parcels.
508. Condition of Phase 4 Parcels.
508.1. Investigation of Phase 4 Parcels. During the term of the ENA, Developer was provided the right, at its sole cost and expense, to engage its own consultants as Developer deems necessary, to determine whether the Site, inclusive of the Phase 4 Parcels, is suitable for development of the Project Improvements, taking into account the geotechnical and soils conditions; the presence or absence of toxic or other hazardous materials; the zoning of the Site; the massing of the proposed Project Improvements; traffic, circulation and parking requirements, issues and constraints imposed on developments of this type that may affect development of the Site; assessment of major public and private utility capacities and connections for providing service to the Project Improvements; assessment of Site drainage; assessment of creek and wetland issues that may affect development of the Project Improvements; and assessment of any other environmental and regulatory factors that the Developer deems relevant. In accordance with the ENA, Developer notified City and does hereby confirm in this Agreement that, in the Developer’s judgment, based on its investigations and analyses, the Site, inclusive of the Phase 4 Parcels, is suitable for development.
Developer acknowledges that City makes no representations or warranties with respect to the accuracy, completeness, methodology of preparation or otherwise concerning the contents of any information or reports made available to Developer regarding any inspections, engineering, environmental or other matters pertaining to the Site, inclusive of the Phase 4 Parcels.
Developer acknowledges that City has requested that Developer inspect fully all portions of the Site, inclusive of the Phase 4 Parcels, and investigate all matters relevant thereto and to rely solely upon the results of Developer’s own inspections or other information obtained or otherwise available to Developer, rather than any information that may have been provided by City to Developer.
508.2. No Further Warranties as to Phase 4 Parcels; Release of City.
Notwithstanding any provision of this Agreement to the contrary, the Phase 4 Parcels shall be conveyed by City to Developer in its “AS IS” condition, “WITH ALL FAULTS,” with no warranty expressed or implied by City regarding the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Phase 4 Parcels for the development purposes intended hereunder. To the extent authorized by contract or law, City shall assign to Developer all warranties and guaranties
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with respect to the Phase 4 Parcels, if any, that City may receive from the prior owner of the Phase 4 Parcels.
Developer hereby waives, releases and discharges forever City and City Parties from all present and future Claims, known and unknown, arising out of or in any way connected with the condition of the Phase 4 Parcels or the existing improvements thereon or any Hazardous Materials on, under, in, about, or emanating from the Phase 4 Parcels or any existing improvements thereon, however they came to be placed there.
Developer is aware of and familiar with the provisions of section 1542 of the California Civil Code which provides as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” As such relates to this Section 508.2, Developer hereby waives and relinquishes all rights and benefits which it may have under section 1542 of the California Civil Code. ______________
Developer Initials
509. Hazardous Materials.
509.1. Duty to Prevent Hazardous Materials Contamination. After the Phase 4 Conveyance, Developer shall take all reasonably necessary precautions to prevent the release of any Hazardous Materials onto or from the Phase 4 Parcels. Such precautions shall include compliance with all Laws with respect to Hazardous Materials. In addition, Developer shall install and utilize such equipment and implement and adhere to such procedures as are consistent with all Laws with respect to the disclosure, storage, use, removal and disposal of Hazardous Materials.
509.2. Environmental Inquiries. If a release of any Hazardous Materials onto or from any portion of the Phase 4 Parcels occurs at any time after the Phase 4 Conveyance, Developer shall, as soon as possible after the release, furnish to City a copy of any and all reports relating thereto and copies of all correspondence with governmental agencies relating to the release.
509.3. Environmental Indemnification. From and after the Phase 4 Conveyance, Developer shall indemnify, defend and hold City and City Parties harmless from and against any Claims resulting from, arising out of, or based upon the release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in, about, or emanating from, or the transportation of any such Hazardous Materials to or from, the Phase 4 Parcels in violation, or alleged violation, of any Laws, no matter when occurred, except that the foregoing indemnity obligation shall not apply to any matters that arise out of the active negligence or willful misconduct of City or City Parties. This indemnity shall include any damage, liability, fine, penalty, parallel indemnity, cost or expense arising from or out of any claim, action, suit or
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proceeding for bodily injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, trespass, contamination, leak, spill, release or other adverse effect on the environment.
600. DEVELOPMENT OF SITE
601. Project Improvements. Consistent with the Project Approvals, the “Project Improvements” to be constructed and developed by Developer on the Site shall consist of and defined as the following:
(a) Subdivision of the Site into a total of 17 parcels, comprised of two parcels for open space (“Parcel A” and “Parcel B”), one parcel for outdoor amenities (“Lot 1”), one parcel for a community building (“Lot 2”), one parcel for 42 residential housing units (“Lot 3”), ten parcels for a townhome residence on each parcel (“Townhome Lots”), one parcel for 48 residential housing units (“Lot 14”), and one parcel for 18 residential housing units (“Lot 15”), as said parcels and lots are shown on TM 2022-02.
(b) Parcel A shall remain as open space and improved with pedestrian trails (“Parcel A Improvements”), to be designed, constructed and installed by Developer and maintained by the Owners pursuant to the terms of the CC&Rs. Further, Parcel A shall be subject to a non-exclusive public easement in favor of the City for public access on, over and across Parcel A as necessary to access the Parcel A Improvements, in perpetuity, as more particularly set forth in the “Parcel A Public Access Easement Agreement” attached hereto as Attachment
11. (c) Parcel B shall remain as open space and improved with a multi-use trail (“Parcel B Improvements”), to be designed, constructed, installed and maintained by City; fee title to Parcel B shall be retained by City.
(d) Lot 1 shall be improved with outdoor amenities such as community gardens, picnic areas and/or a small farm (“Lot 1 Improvements”), to be designed, constructed and installed by Developer, maintained by the Owners pursuant to the terms of the CC&Rs and Amended CC&Rs, and available for use by residents of Lot 3, Townhome Lots, Lot 14 and Lot
15. (e) Lot 2 shall be improved with a one-story community building of approximately 3,067 square feet, 4 surface parking spaces and associated hardscape and landscape improvements (“Lot 2 Improvements”), to be designed, constructed and installed by Developer, maintained by the Owners pursuant to the terms of the CC&Rs and Amended CC&Rs, and available for use by residents of Lot 3, Townhome Lots, Lot 14 and Lot 15. (f) Lot 3 shall be improved with four, three-story residential buildings of a height not to exceed 35 feet, containing 42 residential units totaling approximately 45,299 square feet and comprised of one (1) studio unit, nineteen (19) one-bedroom units, eleven (11) two-bedroom units, and eleven (11) three-bedroom units, 64 surface parking spaces and associated hardscape and landscaping improvements (“Lot 3 Improvements”), which residential units shall be restricted for rental to and occupancy by lower income households, inclusive of
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very low income households and extremely low income households, at an affordable rent, for a minimum period of 55 years, as more particularly set forth in the Rental Affordable Housing Covenant attached hereto as Attachment 6. Further, Lot 3 shall be subject to a non-exclusive public easement in favor of the City for ingress and egress from Parkland Farms Boulevard on, over and across Lot 3 to the planned parking lot serving the Healdsburg Ridge Open Space Reserve to be located adjacent to and east of Lot 3, in perpetuity, as more particularly set forth in the “Lot 3 Ingress & Egress Easement Agreement” attached hereto as Attachment 12. (g) The ten (10) Townhome Lots shall each be improved with a twostory, three-bedroom townhome residence on each parcel of a height not to exceed 28 feet, and 1,766 square feet, and associated surface parking and hardscaping and landscaping improvements (“Townhome Lot Improvements”), which townhome residences shall be restricted for sale to and occupancy by persons and families of moderate income, at an affordable housing cost, for a minimum period of 45 years, as more particularly set forth in the OwnerOccupied Affordable Housing Covenant attached hereto as Attachment 7. (h) Lot 14 shall be improved with one, three-story residential buildings of a height not to exceed 35 feet, containing 48 residential units totaling approximately 59,531 square feet and comprised of thirteen (13) studio units, eleven (11) one-bedroom units, twelve (12) two-bedroom units, and twelve (12) three-bedroom units, 60 surface parking spaces and associated hardscape and landscaping improvements (“Lot 14 Improvements”), which residential units shall be restricted for rental to and occupancy by lower income households, inclusive of very low income households and extremely low income households, at an affordable rent, for a minimum period of 55 years, as more particularly set forth in the Rental Affordable Housing Covenant attached hereto as Attachment 6.
(i) Lot 15 shall be improved with two, three-story residential buildings of a height not to exceed 35 feet, containing 18 residential units totaling approximately 20,077 square feet and comprised of one (1) studio unit, six (6) one-bedroom units, six (6) twobedroom units, and five (5) three-bedroom units, 29 surface parking spaces and associated hardscape and landscaping improvements (“Lot 15 Improvements”), which residential units shall be restricted either (i) for rental to and occupancy by lower income households, inclusive of very low income households and extremely low income households, at an affordable rent, for a minimum period of 55 years, as more particularly set forth in the Rental Affordable Housing Covenant attached hereto as Attachment 6 (“Lot 15 Rental Option”), or (ii) for sale to and occupancy by persons and families of moderate income, at an affordable housing cost, for a minimum period of 45 years, as more particularly set forth in the Owner-Occupied Affordable Housing Covenant attached hereto as Attachment 7 (“Lot 15 Owner-Occupied Option”). (j) Public improvements shall include (i) construction of sidewalks and streetlights along Passalacqua Drive and Parkland Farms Boulevard fronting the Site, (ii) striping of that portion of Passalacqua Drive and Parkland Farms Boulevard fronting the Site, (iii) installation and construction of a Rectangular Rapid Flashing Beacon at the crossing of Parkland Farms Boulevard located between Parcel B and Lot 2, and (iv) the Parcel A Improvements (collectively, the “Public Improvements”).
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601.1. Project Phases. Developer shall develop and construct the Project Improvements in no more than four phases in accordance with the Conditions of Approval required by City, and those plans, drawings and documents (including Construction Drawings) submitted by Developer and approved by City, as applicable, all as provided herein. All work of Project Improvements shall be performed in a first-class, workmanlike manner by qualified, professional contractor(s) duly licensed in California and in good standing under applicable Laws.
The first phase of the Project Improvements shall consist of the construction and completion thereof of the Parcel A Improvements, Lot 2 Improvements, Lot 14 Improvements, and the Public Improvements in accordance with the Project Approvals (“Phase 1 Improvements”) on the Phase 1 Parcels (“Phase 1 Project”). The Parcel B Improvements will be designed and constructed by City, at its sole cost and expense, either before or concurrently with the construction of the Phase 1 Improvements by Developer, and maintained by City thereafter.
The second phase of the Project Improvements will consist of the construction and completion thereof of the Lot 1 Improvements and Lot 3 Improvements in accordance with the Project Approvals (“Phase 2 Improvements”) on the Phase 2 Parcels (“Phase 2 Project”).
The third phase of the Project Improvements will consist of the construction and completion thereof of the Lot 15 Improvements in accordance with the Project Approvals (“Phase 3 Improvements”) on the Phase 3 Parcel (“Phase 3 Project”).
The fourth phase of the Project Improvements will consist of the construction and completion thereof of the Townhome Lot Improvements in accordance with the Project Approvals (“Phase 4 Improvements”) on the Phase 4 Parcels (“Phase 4 Project”).
No less than thirty (30) calendar days following the City Manager’s approval of the Evidence of Financing for the Phase 3 Project, Developer shall elect to develop and construct the Lot 15 Improvements pursuant to the Lot 15 Rental Option or the Lot 15 Owner-Occupied Option. If Developer elects to develop and construct the Lot 15 Improvements pursuant to the Lot 15 Rental Option, then said Lot 15 Improvements may be constructed and completed as a stand-alone rental development or as part of the Phase 1 Project and/or the Phase 2 Project, as may then be feasible; however, if Developer elects to develop and construct the Lot 15 Improvements pursuant to the Lot 15 Owner-Occupied Option, then said Lot 15 Improvements may be constructed and completed as a stand-alone owner-occupied development or as part of and combined with the Phase 4 Project, as may then be feasible. 602. Development Approvals. Except as otherwise expressly provided in this Agreement, Developer shall, at its sole cost, design, construct and install the Project Improvements as applicable to each Project Phase in accordance with the Project Approvals, Subsequent Project Approvals, and the Construction Drawings to be submitted by Developer and approved by City as provided in Section 604.2.
602.1. Project Approvals. “Project Approvals” means the DR Resolution and attendant CEQA Determination approved by the Planning Commission on November 8, 2022, and the TM Resolution and attendant CEQA Determination approved by the City Council on
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March 20, 2023, including the Conditions of Approval thereto, and all other approvals that may be required by the City Municipal Code or other applicable Laws. 602.2. Subsequent Project Approvals. Certain subsequent land use approvals, entitlements, and permits other than the Project Approvals, will be necessary or desirable for implementation of the Project Improvements (“Subsequent Project Approvals”). The Subsequent Project Approvals may include, without limitation, the following: amendments of the Existing Approvals, grading permits, encroachment permits, building permits, sewer and water connection permits, certificates of occupancy, final maps, lot line adjustments, parcel maps and/or subdivision maps, and any amendments to, or repealing of, any of the foregoing. Within the time provided in the Schedule of Performance, Developer, at its expense, shall secure or cause to be secured any and all Subsequent Project Approvals, including those listed in Section 602.3 below, which may be required by City and any other governmental entity exercising jurisdiction, including compliance with CEQA, if applicable. City staff will work cooperatively with Developer to assist in coordinating the expeditious processing and consideration of all necessary Subsequent Project Approvals for the Project Improvements. 602.3. Final Map; Public Improvement Agreement; Public Improvement Bonds. Within the time provided in the Schedule of Performance Developer shall (i) prepare and file with City, for its review and approval in accordance with the Municipal Code and the Subdivision Map Act, a final map in conformance with TM 2022-02 and the Conditions of Approval, as approved by the TM Resolution (the “Final Map”), (ii) execute and deliver to the Phase 1 Escrow an agreement governing Developer’s obligation to design and construct the Public Improvements (“Public Improvement Agreement”), in the form prepared by and acceptable to the City Attorney, (iii) deliver to City performance and labor and material bonds, in an amount and form approved by the City Engineer, to guarantee Developer’s obligations relating to the Public Improvements as set forth in the Public Improvement Agreement (“Public Improvement Bonds”), and (iv) cause the Final Map to be recorded in the Official Records and pay all applicable fees, expenses, costs, taxes and assessments, if any, in connection therewith. 603. Schedule of Performance. Subject to the provisions of Section 1002 hereof, Developer shall commence and complete construction of the Project Improvements as applicable to each Project Phase and satisfy all other obligations and conditions of this Agreement with respect thereto within the times established in the Schedule of Performance. “Commence Construction” or “Commencement of Construction” shall be deemed to have occurred with respect to a Project Phase when City has issued one or more permits for the construction of the Phase 1 Project, Phase 2 Project, Phase 3 Project or Phase 4 Project, and Developer has undertaken substantial work on the Phase 1 Parcels, Phase 2 Parcels, Phase 3 Parcel, or Phase 4 Parcels, respectively, in reliance on the permits issued; and such date shall be memorialized in writing by the Parties. “Complete Construction” or “Completion of Construction” shall be deemed to have occurred with respect to a Project Phase when Developer has completed the work of the Phase 1 Improvements, Phase 2 Improvements, Phase 3 Improvements, or Phase 4 Improvements, as applicable, in conformity with this Agreement and therefore has the right to submit a request for a Certificate of Completion to City pursuant to Section 610. The Schedule of Performance is subject to revision from time to time as mutually agreed upon in writing between Developer and the City Manager, and the City Manager is authorized to make such revisions from time to time as he or she deems reasonably necessary. The foregoing
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notwithstanding, the City Manager has no authority to revise the Phase 1 Outside Date, Phase 2 Outside Date, Phase 3 Outside Date, or Phase 4 Outside Date without the consent and approval of the City Council.
604. Design Review.
604.1. Schematic Plans. City hereby approves the plans prepared by Mithun Architects, dated July 22, 2022, and approved by the Planning Commission on November 8, 2022, pursuant to the DR Resolution (“Schematic Plans”), which illustrate the overall development concept of the Project Improvements.
604.2. Construction Drawings and Related Documents. Within the time set forth in the Schedule of Performance, Developer shall prepare and submit to City for its review and approval detailed construction drawings and plans with respect to the Project Improvements to be constructed and installed in a Project Phase, including a grading plan, which shall be consistent with the Schematic Plans and be prepared by a registered civil engineer and/or licensed architect (“Construction Drawings”).
604.3. Revisions. If, after approval of the Construction Drawings for a Project Phase, Developer desires to propose any material revisions to such Construction Drawings, it shall submit such proposed changes to City, and shall also proceed in accordance with any and all Laws regarding such revisions. If any material change to the Project Improvements to be constructed and installed in a Project Phase is proposed which deviates from the basic concept for the Project Improvements set forth in the Schematic Plans as originally approved by City, then City’s approval of any revisions to such Construction Drawings may be conditioned upon the renegotiation of the economic terms of this Agreement. If the Construction Drawings, as modified by the proposed change, generally and substantially conform to the Schematic Plans and the Project Improvements, the City Manager shall review the proposed change and notify Developer in writing within fifteen (15) days after submission to City as to whether the proposed change is approved or disapproved; provided, however, that the City Manager is authorized to and shall approve changes to the approved Construction Drawings provided such changes do not reduce the number or size of the Project Affordable Units or significantly reduce the quality of materials to be used, as determined by the City Manager in his or her reasonable discretion. Any and all change orders or revisions required by City and its inspectors which are required under City Municipal Code and all other applicable codes (e.g., Building, Plumbing, Fire, Electrical, etc.) and Laws shall be included by Developer in its Construction Drawings and completed during construction of the Project Improvements to be constructed and installed in a Project Phase.
604.4. Consultation and Coordination. During preparation of the Construction Drawings for a Project Phase, City staff and Developer shall hold progress meetings on an asneeded basis to coordinate the preparation, submission, and review of such Construction Drawings. City staff and Developer shall communicate and consult informally as frequently as is necessary to ensure that the formal submittal of any documents to City can receive timely and thorough consideration.
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604.5. Defects in Plans. City shall not be responsible to Developer or to any third parties in any way for (i) any defects in any Schematic Plans or Construction Drawings, (ii) any defects in any of the Project Improvements, or (iii) any structural or other defects in any work done according to the approved Schematic Plans or Construction Drawings. 605. Construction Requirements.
605.1. General Contractor; Construction Contract. Within the time established in the Schedule of Performance, with respect to each Project Phase, Developer shall notify City of the Developer’s selection of a general contractor and the final construction contract (“Construction Contract”), which shall be a guaranteed maximum price contract in a form acceptable to City. The City Manager shall approve or disapprove the proposed general contractor and the Construction Contract for the Project Improvements to be constructed and installed in a Project Phase within the time established in the Schedule of Performance. The City Manager shall not withhold approval of a proposed general contractor who in the reasonable opinion of the City Manager is financially capable and has the qualifications and experience to perform its duties and obligation under a guarantee maximum price contract acceptable to City. 605.2. Costs of Development and Construction. Except as otherwise expressly provided in Section 802 with respect to City’s provision of the Public Improvement Loan for the Phase 1 Project, all costs of preparing the Site, and planning, designing, and constructing the Project Improvements shall be borne solely by Developer. 605.3. Construction Oversight. City may retain a third party consultant to monitor the construction of the Project Improvements, and ensure that Developer maintains adequate funding for completion of each Project Phase.
605.4. Waste Reduction and Recycling. Developer shall, and shall require its general contractor to, with respect to each Project Phase, arrange the segregation of recyclable construction-generated solid waste from non-recyclable waste, and divert at least seventy percent (70%) of all construction debris. Within the time established in the Schedule of Performance, Developer shall submit to City a waste management plan, in a form acceptable to City, outlining the estimated amount and types of waste to be generated, reused, recycled, and disposed of (“Waste Management Plan”). The City Manager shall approve or disapprove the proposed Waste Management Plan for a Project Phase within the time established in the Schedule of Performance. If the City Manager disapproves the Waste Management Plan, the City Manager shall do so by written Notice to Developer stating the reasons for such disapproval. The City Manager shall approve or disapprove any newly submitted Waste Management Plan in the same manner and within the same time established in the Schedule of Performance for the approval or disapproval of the Waste Management Plan initially submitted to City. Upon Completion of Construction of each Project Phase, Developer shall, or shall require the general contractor to, submit a report evidencing compliance with the Waste Management Plan, including evidence of the amounts and types of materials that have been recycled or reused for the Project Improvements in the Project Phase (“Waste Management Compliance Report”). 605.5. Construction Reports. Upon Commencement of Construction and until Completion of Construction of each Project Phase, Developer shall submit to City written
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progress reports of the construction within five (5) days following City’s request (not to be made more frequently than once a month). The progress reports shall be in such form and detail as may reasonably be required by City for proper review and oversight of the Project Improvements applicable to each Project Phase, and shall include a reasonable number of construction photographs taken since the last submitted progress report to visualize progress on the construction of the Project Improvements applicable to the Project Phase. 606. Insurance Requirements. Developer shall take out and maintain, and/or shall cause its contractor to take out and maintain, throughout the term of this Agreement, a commercial general liability policy in an amount not less than Two Million Dollars ($2,000,000) combined single limit, including contractual liability together with a comprehensive automobile liability policy in the amount of One Million Dollars ($1,000,000), combined single limit. Such policy or policies shall be written on an occurrence form. During any period in which construction is being undertaken on a Project Phase, Developer shall maintain or shall cause its contractor to maintain builder’s all-risk insurance in an amount not less than the full insurable value of the Project Improvements under construction in the applicable Project Phase on a replacement cost basis; and Developer, shall cause to be furnished to City evidence reasonably satisfactory to City that any contractor with whom Developer has contracted for the performance of work on a Project Phase carries workers’ compensation insurance as required by law.
Companies writing the insurance required hereunder shall be approved to conduct business in the State of California. Developer’s insurance shall be placed with insurers with a current A.M. Best’s rating of no less than A-:VII. Developer shall furnish appropriate certificate(s) of insurance evidencing the insurance coverage required hereunder, and City and its officers, officials, and employees (collectively, “City Parties”) shall be named as additional insured parties under the liability policies required hereunder. The certificate of insurance shall contain a statement of obligation on the part of the carrier to notify City of any material change, cancellation or termination of the coverage at least thirty (30) days in advance of the effective date of any such material change, cancellation or termination (ten (10) days advance notice in the case of cancellation for nonpayment of premiums), if the insurance carrier provides such notices in its normal course of business. Coverage provided hereunder by Developer shall be primary insurance and shall not be contributing with any insurance, self-insurance or joint self-insurance maintained by City, and the policy shall contain such an endorsement. The insurance policy or the endorsement shall contain a waiver of subrogation for the benefit of City. The required certificate and endorsements shall be furnished by Developer to City within the time provided in the Schedule of Performance, and throughout the term of the Agreement within ten (10) days following City’s request therefor.
607. Rights of Access. During the period of construction of Project Improvements in each Project Phase, representatives of City shall have the reasonable right of access to the Phase 1 Parcels, Phase 2 Parcels, Phase 3 Parcel, and Phase 4 Parcels, as applicable, without charges or fees, at normal construction hours for the purposes of inspecting the Project Phase being constructed and ensuring compliance with this Agreement, so long as City and its representatives comply with all safety and security rules. City and its representatives shall, except in emergency situations, notify Developer at least twenty-four (24) hours in advance of exercising its rights pursuant to this Section 607. Nothing herein shall be deemed to limit the ability of City to conduct code enforcement and other administrative inspections of the Site and Project Improvements in accordance with applicable Laws.
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608. Compliance with Laws.
608.1. Compliance with Laws. Developer shall carry out the construction of the Project Improvements and all other work pursuant to this Agreement in conformity with all applicable Laws. All such work shall be performed by one or more qualified contractors duly licensed in and in good standing under the laws of the State of California. 608.2. Prevailing Wage Requirements.
(a) Developer acknowledges that the Project Improvements to be constructed in a Project Phase constitute “public works” as defined in Labor Code section 1720 in that such Project Improvements involve construction, alteration, demolition, installation, or repair work done under contract and paid for in whole or in part out of public funds under Labor Code section 1720, et seq. (“State Labor Code”); however, depending on Project Financing secured for a Project Phase, the Project Improvements to be constructed in a Project Phase may nevertheless be exempt from the requirement of the State Labor Code. Accordingly, in the event the Project Improvements to be constructed in a Project Phase remain subject to the requirements of the State Labor Code, Developer shall comply with all applicable State Labor Code requirements, including provisions requiring the payment of prevailing wages in connection with construction of the Project Improvements to be constructed in a Project Phase. Developer shall require its general contractor to post at the portion of the Site applicable to the Project Phase under construction the prevailing wage rates for all applicable trades and to submit copies of payroll records to Developer to ensure compliance with State Labor Code requirements pertaining to “public works.” Developer shall provide such payroll records to City promptly following City’s request therefor. Developer shall also include in the Construction Contract with its general contractor a provision, in a form reasonably acceptable to City, obligating such general contractor to require its contractors and/or subcontractors to comply with all State Labor Code requirements pertaining to “public works” (as defined in Labor Code section 1720). If Developer receives federal funding or assistance, Developer shall also comply with any applicable federal labor requirements, including the Davis-Bacon Act of 1931 as codified in 40 U.S.C §§ 3141 through 3148 (“Davis-Bacon”).
(b) Developer shall defend (with counsel reasonably acceptable to City) City and City Parties from and against any and all Claims made by a third party or parties arising out of Developer’s obligation to comply with all State Labor Code and Davis-Bacon requirements pertaining to public works and payment of prevailing wages in connection with the Improvements, as required pursuant to the immediately preceding paragraph, and indemnify and hold harmless City and City Parties with respect to all final judgments or settlements in actions brought by any “contractor” in which City or City is (i) determined to be an “awarding body” and (ii) damages are awarded, pursuant to Labor Code sections 1726 or 1781 or applicable portions of Davis-Bacon. Developer’s indemnity obligations under this Section 608.2 shall survive expiration or termination of this Agreement and issuance of the Certificate of Completion.
(c) Developer hereby waives, releases and discharges forever City and City Parties from any and all present and future Claims arising out of or in any way connected with Developer’s obligation to comply with all State Labor Code and Davis-Bacon requirements
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pertaining to public works and payment of prevailing wages pursuant to the first paragraph of this Section 608.2.
609. Taxes and Assessments. During its period of ownership of the Site and the Project Improvements thereon, or any portion thereof, Developer shall pay prior to delinquency all ad valorem real estate taxes and assessments on the Site and the Project Improvements thereon, or any portion thereof, subject to Developer’s right to contest in good faith any such taxes. Developer shall remove or have removed any levy or attachment made on the Site or the Project Improvements thereon, or any part thereof; or shall assure the satisfaction thereof within thirty (30) days following the date of attachment or levy. 610. Certificate of Completion. Following Developer’s satisfactory completion of a Project Phase, as evidenced by City’s issuance of a certificate of occupancy with respect to the Project Phase, Developer may request that City issue the Certificate of Completion with respect to such work. The “Certificate of Completion” shall be substantially in the form of Attachment No. 10 attached hereto. City shall not unreasonably withhold the Certificate of Completion for a Project Phase. If City refuses or fails to furnish the Certificate of Completion for a Project Phase, City shall, within ten (10) business days after Developer’s written request therefor, provide Developer with a written statement of the reasons City refused or failed to furnish the Certificate of Completion. The statement shall also contain City’s opinion of the actions Developer must take to obtain the Certificate of Completion. The Certificate of Completion shall be a conclusive determination of Developer’s satisfactory completion of the work applicable to the Project Phase. Any party then owning or thereafter purchasing or otherwise acquiring any interest in the applicable Project Phase shall not (because of such ownership, purchase, or acquisition) incur any obligation or liability under this Agreement, except for those continuing covenants as set forth in the applicable Project Affordable Housing Covenant.
Notwithstanding anything in this Agreement to the contrary, the Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to the holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the construction of a Project Phase, or any part thereof; nor shall the Certificate of Completion constitute a notice of completion as referred to in section 3093 of the California Civil Code. 611. Mortgage and Deed of Trust Financing.
611.1. No Encumbrances Except Mortgages and Deeds of Trust. Prior to issuance of a Certificate of Completion for a Project Phase, mortgages and deeds of trust will be permitted only for the purpose of financing construction and development of the Project Improvements required in connection with the Project Phase (including but not limited to, design, planning, permitting, remediation, site preparation and horizontal and vertical construction). Following issuance of the Certificate of Completion for a Project Phase, mortgages and deeds of trust shall be permitted for any purpose, and City shall have no approval or disapproval rights with respect thereto. The words “mortgage” and “deed of trust” as used herein shall include sale and lease-back financing.
611.2. Holder Not Obligated to Construct Project Improvements. The holder of any mortgage or deed of trust shall not be obligated by the provisions of this Agreement to construct or complete the Project Improvements required in a Project Phase or to guarantee such
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construction or completion. Nothing in this Agreement shall be deemed to or be construed to permit or authorize any such holder to devote the Project Phase subject to its mortgage or deed of trust to any uses or to construct any improvements thereon other than those uses and Project Improvements provided for or authorized by this Agreement, the Project Affordable Housing Covenants, and the Project Approvals.
611.3. Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer on the Phase 1 Parcels, Phase 2 Parcels, Phase 3 Parcel, or Phase 4 Parcels, whenever City shall deliver any Notice or demand to Developer with respect to any breach or default by Developer hereunder, City shall at the same time deliver to each holder of record of any mortgage or deed of trust on the Phase 1 Parcels, Phase 2 Parcels, Phase 3 Parcel, or Phase 4 Parcels, a copy of such Notice or demand. No Notice of default shall be effective as to the holder unless such Notice is given.
Each such holder shall (insofar as the rights of City are concerned) have the right, at its option, within one hundred twenty (120) days after the receipt of the Notice, to cure or remedy or commence to cure or remedy any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. In the event possession of the Phase 1 Parcels, Phase 2 Parcels, Phase 3 Parcel or Phase 4 Parcels, or portion thereof, is required to effectuate such cure or remedy, the holder shall be deemed to have timely cured or remedied if it commences the proceedings necessary to obtain possession thereof within one hundred twenty (120) days, diligently pursues such proceedings to completion, and, after obtaining possession, diligently completes such cure or remedy (the foregoing time periods being subject to extension during the period that such holder is precluded from taking or pursuing any such action as a consequence of any bankruptcy stay or other court order). Nothing in this Agreement shall be deemed to permit or authorize such holder to undertake or continue the construction or completion of the Project Improvements applicable to the Project Phase (beyond the extent necessary to conserve or protect such Project Improvements or construction already made) without first having expressly assumed Developer’s obligations to City by written agreement reasonably satisfactory to City.
Any such holder properly completing such Project Improvements applicable to a Project Phase shall be entitled, upon compliance with the requirements of Section 610, to a Certificate of Completion for the Project Phase.
700. COVENANTS, RESTRICTIONS AND AGREEMENTS
701. Use Covenants. The Site shall be used for the uses set forth in the Project Approvals for the Site, as the same may be amended or modified from time to time. All uses on the Site shall conform to the Project Approvals and this Agreement; furthermore, all uses on Lot 3 through Lot 15 shall conform to the applicable Project Affordable Housing Covenant. 702. Rental Affordable Units. As more particularly set forth in the Rental Affordable Housing Covenant, all of the residential units constructed on Lot 3, Lot 14 and Lot 15, if Developer Elects the Lot 15 Rental Option in accordance with Section 601 (with the exception of two (2) units, one (1) each on Lot 3 and Lot 14, which shall be reserved for the Property Manager [as defined in the Rental Affordable Housing Covenant]) shall be rented to and occupied by an Eligible Household at an Affordable Rent (each, an “Rental Affordable Unit” and, collectively, the “Rental Affordable Units”).
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702.1. Rent and Income Restrictions. As more particularly set forth in the Rental Affordable Housing Covenant, the Rental Affordable Units shall be rented to and occupied by Eligible Households at Affordable Rents for a period of fifty-five (55) years. 702.2. General Requirements for Rental Affordable Units. As more particularly set forth in the Rental Affordable Housing Covenant, the Forty-Two (42) Rental Affordable Units constructed on Lot 3 shall consist of one (1) studio unit, nineteen (19) onebedroom units, eleven (11) two-bedroom units, and eleven (11) three-bedroom units; the FortyEight (48) Rental Affordable Units constructed on Lot 14 shall consist of thirteen (13) studio units, eleven (11) one-bedroom units, twelve (12) two-bedroom units, and twelve (12) threebedroom units; and the Eighteen (18) Rental Affordable Units constructed on Lot 15, if Developer elects the Lot 15 Rental Option in accordance with Section 601, shall consist of one (1) studio unit, six (6) one-bedroom units, six (6) two-bedroom units, and five (5) three-bedroom units. The foregoing notwithstanding, two (2) of the Rental Affordable Units, one (1) each on Lot 3 and Lot 14, shall be rented to and occupied by the Property Manager (the “Property Manager Unit”), who is required to reside on the premises pursuant to Section 402.5 below, however, the rental of the Property Manager Unit to the Property Manager shall not be subject to the income and rent restrictions set forth herein. The City will inspect the Rental Affordable Units for compliance with this Section prior to issuance of a certificate of occupancy for Lot 3, Lot 14 and Lot 15.
702.3. Marketing of Rental Affordable Units. Developer shall be responsible for marketing the Rental Affordable Units, as more particularly set forth in the Rental Affordable Housing Covenant. Within the time established in the Schedule of Performance, Developer shall submit to City a residential marketing plan for the Phase 1 Project, Phase 2 Project, and Phase 3 Project, if Developer elects the Lot 15 Rental Option in accordance with Section 601, in a form acceptable to City and consistent with the provisions of the Rental Affordable Housing Covenant (“Rental Residential Marketing Plan”). The City Manager shall approve or disapprove the proposed Rental Residential Marketing Plan for each applicable Project Phase within the time established in the Schedule of Performance. Approval shall not be unreasonably withheld. If the City Manager disapproves the Rental Residential Marketing Plan, the City Manager shall do so by written Notice to Developer stating the reasons for such disapproval. The City Manager shall approve or disapprove any newly submitted Rental Residential Marketing Plan in the same manner and within the same time established in the Schedule of Performance for the approval or disapproval of the Rental Residential Marketing Plan initially submitted to City. 702.4. Supportive Services to Residents. Developer shall be responsible for ensuring that adequate supportive services are provided to residents of the Rental Affordable Units, as more particularly set forth in the Rental Affordable Housing Covenant. Within the time established in the Schedule of Performance, Developer shall submit to City a residential supportive services plan for the Phase 1 Project, Phase 2 Project, and Phase 3 Project, if Developer elects the Lot 15 Rental Option in accordance with Section 601, in a form acceptable to City and consistent with the provisions of the Rental Affordable Housing Covenant (“Supportive Services Plan”). The City Manager shall approve or disapprove the proposed Supportive Services Plan for each applicable Project Phase within the time established in the Schedule of Performance. Approval shall not be unreasonably withheld. If the City Manager disapproves the Supportive Services Plan, the City Manager shall do so by written Notice to
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Developer stating the reasons for such disapproval. The City Manager shall approve or disapprove any newly submitted Supportive Services Plan in the same manner and within the same time established in the Schedule of Performance for the approval or disapproval of the Supportive Services Plan initially submitted to City.
702.5. On-Site Property Manager; Site Management Plan. Developer shall be responsible for ensuring that persons with the requisite skill and experience managing multifamily residential developments (“Property Manager”) lives in two (2) of the Rental Affordable Units, one (1) each on Lot 3 and Lot 14. Further, Developer shall be responsible for addressing in detail their plan to provide for the maintenance, repair (both routine and extraordinary), and rehabilitation of the Rental Affordable Units, replacement of capital items in the Rental Affordable Units, implementation of the vegetation management plan required by the Conditions of Approval, as well as the development and enforcement of a program governing parking of vehicles by residents of the Rental Affordable Units (“Site Management Plan”). Within the time established in the Schedule of Performance, Developer shall submit to City a Site Management Plan for the Phase 1 Project. The City Manager shall approve or disapprove the proposed Site Management Plan for the Phase 1 Project within the time established in the Schedule of Performance. Approval shall not be unreasonably withheld. If the City Manager disapproves the Site Management Plan, the City Manager shall do so by written Notice to Developer stating the reasons for such disapproval. Within the time established in the Schedule of Performance, Developer shall submit to City a revised Site Management Plan (“Amended Site Management Plan”) for the Phase 2 Project and Phase 3 Project, if Developer elects the Lot 15 Rental Option in accordance with Section 601. The City Manager shall approve or disapprove the proposed Amended Site Management Plan for the Phase 2 Project and Phase 3 Project, if applicable, within the time established in the Schedule of Performance. Approval shall not be unreasonably withheld. If the City Manager disapproves the Amended Site Management Plan, the City Manager shall do so by written Notice to Developer stating the reasons for such disapproval. The City Manager shall approve or disapprove any newly submitted Site Management Plan or Amended Site Management Plan in the same manner and within the same time established in the Schedule of Performance for the approval or disapproval of the Site Management Plan initially submitted to City. 703. Owner-Occupied Affordable Units. As more particularly set forth in the Owner-Occupied Affordable Housing Covenant, all of the residential units constructed on the Townhome Lots and Lot 15, if Developer Elects the Lot 15 Owner-Occupied Option in accordance with Section 601, shall be sold to and occupied by an Eligible Purchaser at an Affordable Sales Price (each, an “Owner-Occupied Affordable Unit” and, collectively, the “Owner-Occupied Affordable Units”).
703.1. Sales Price and Income Restrictions. As more particularly set forth in the Owner-Occupied Affordable Housing Covenant, the Owner-Occupied Affordable Units shall be sold to and occupied by Eligible Purchasers at Affordable Sales Price for a period of fortyfive (45) years. 703.2. General Requirements for Owner-Occupied Affordable Units. As more particularly set forth in the Owner Occupied Affordable Housing Covenant, the Ten (10) Owner-Occupied Affordable Units constructed on the Townhome Lots shall consist of two-story,
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three-bedroom townhome residences; and the Eighteen (18) Owner-Occupied Affordable Units constructed on Lot 15, if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601, shall consist of one (1) studio unit, six (6) one-bedroom units, six (6) twobedroom units, and five (5) three-bedroom units. The City will inspect the Owner-Occupied Affordable Units for compliance with this Section prior to issuance of the certificate of occupancy for an Owner-Occupied Affordable Unit.
703.3. Marketing of Owner-Occupied Affordable Units. Developer shall be responsible for marketing the Owner-Occupied Affordable Units, as more particularly set forth in the Owner-Occupied Affordable Housing Covenant. Within the time established in the Schedule of Performance, Developer shall submit to City a residential marketing plan, in a form acceptable to City and consistent with the provisions of the Owner-Occupied Affordable Housing Covenant (“Owner-Occupied Residential Marketing Plan”). The City Manager shall approve or disapprove the proposed Owner-Occupied Residential Marketing Plan within the time established in the Schedule of Performance. Approval shall not be unreasonably withheld. If the City Manager disapproves the Owner-Occupied Residential Marketing Plan, the City Manager shall do so by written Notice to Developer stating the reasons for such disapproval. The City Manager shall approve or disapprove any newly submitted Owner-Occupied Residential Marketing Plan in the same manner and within the same time established in the Schedule of Performance for the approval or disapproval of the Owner-Occupied Residential Marketing Plan initially submitted to City.
704. Maintenance Covenants. Developer hereby covenants and agrees that it shall be responsible for ensuring that the Project Improvements in each Project Phase are maintained in a clean and orderly condition and in good physical and aesthetic condition and repair, and shall be kept in a decent, safe, sanitary, habitable and tenantable living condition, free from any accumulation of debris, waste, unmaintained landscaping, graffiti, disrepair, abandoned vehicles and appliances, and illegal activity, and in conformity with all applicable federal, state and local laws, ordinances, codes and regulations, including the Conditions of Approval. Within the time established in the Schedule of Performance, Developer shall submit to the City Manager for review and approval a declaration of covenants, conditions and restrictions (“CC&Rs”) governing the obligation of the Owners to provide for and pay for the ongoing management of the Project Improvements on each Project Phase, excluding Parcel B, including maintenance, inspection, and repair of the Project Affordable Units and all other Project Improvements on each Project Phase, including implementation of the vegetation management plan required by the Conditions of Approval. The CC&Rs shall initially be recorded against the Site by City as declarant (“Declarant”) before any Phased Conveyance, and thereafter shall be acknowledged by Developer as being applicable to each Project Phase as a condition of each Phased Closing pursuant to an “Acknowledgment of CC&Rs,” in a form and substance acceptable to and approved by the City Manager. Accordingly, the Developer acknowledges and agrees that the Acknowledgment of CC&Rs shall be recorded in the Official Records (i) against the Phase 1 Parcels at the Phase 1 Closing, (ii) against the Phase 2 Parcels at the Phase 2 Closing, (iii) against the Phase 3 Parcel at the Phase 3 Closing, and (iv) against the Phase 4 Parcels at the Phase 4 Closing. The City Manager’s approval of the CC&Rs and Amended CC&Rs shall not be unreasonably withheld, conditioned or delayed. If the City Manager disapproves the CC&Rs or Acknowledgment of CC&Rs, the City Manager shall do so by written Notice to Developer stating the reasons for such disapproval.
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705. Nondiscrimination Covenants.
705.1. No Discrimination. Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of section 12955 of the Government Code, as those bases are defined in sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of section 12955, and section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Site, any improvements thereon, or any part thereof, nor shall the grantee or any person claiming under or through Developer, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants and all other provisions of this Section 705 shall run with the land and shall be contained in each subsequent grant deed conveying title to the Site, any improvements thereon, or any part thereof, to any subsequent owner, and the provisions of this Section 705 shall survive expiration or other termination of this Agreement.
705.2. Nonsegregation Clause. Developer shall refrain from restricting the rental, sale or lease of the Site or any improvements thereon, or any part thereof, on account of any basis listed in subdivision (a) or (d) of section 12955 of the Government Code, as those bases are defined in sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of section 12955, and section 12955.2 of the Government Code. All such deeds, leases or contracts for the rental, sale or lease of the Site or any improvements thereon, or any part thereof, made by Developer after the Date of Agreement, shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses:
(a) In deeds: “The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there will be no discrimination against or segregation of, any person or group of persons on account of any basis listed in subdivision (a) or (d) of section 12955 of the Government Code, as those bases are defined in sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of section 12955, and section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.” (b) In leases: “The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of section 12955 of the Government Code, as those bases are defined in sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of section 12955, and section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him
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or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased.”
(c) In contracts: “There shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of section 12955 of the Government Code, as those bases are defined in sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of section 12955, and section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises.” 706. Project Affordable Housing Covenants. Developer’s covenants with respect to the development, use, maintenance, and operation of the Site shall be more particularly set forth in the Project Affordable Housing Covenants, which shall run with the land and be binding on Developer and its successors and assigns for the period of time set forth therein. 706.1. Rental Affordable Housing Covenant. Within the time provided in the Schedule of Performance, the “Rental Affordable Housing Covenant” shall be executed and acknowledged by City and Developer in the form attached as Attachment No. 6, subject to such commercially reasonable modifications as requested by Developer and its lenders and investors and approved by the City Manager and City Attorney, in their reasonable discretion, and delivered into the Phase 1 Escrow, Phase 2 Escrow, and Phase 3 Escrow if Developer elects the Lot 15 Rental Option in accordance with Section 601, for recordation in the Official Records.
Prior to execution, Developer shall submit Exhibit D [List of Amenities] of the Rental Affordable Housing Covenant to the City Manager for approval and insertion, which approval shall not be unreasonably withheld, conditioned or delayed. In addition, the Parties shall include the approved Rental Residential Marketing Plan and Supportive Services Plan as exhibits to the Rental Affordable Housing Covenant prior to execution and recordation. A Rental Affordable Housing Covenant shall be recorded against each of Lot 14, Lot 3, and Lot 15, if Developer elects the Lot 15 Rental Option in accordance with Section 601, immediately following delivery and recordation of the Phase 1 Conveyance, Phase 2 Conveyance and Phase 3 Conveyance, respectively, and shall have priority over the liens of all mortgages, deeds of trust and other liens (other than the lien for current, unpaid property taxes). Within the time provided in the Schedule of Performance, Developer shall cause all such mortgagees, deed of trust beneficiaries and other lien holders to execute and deliver to Phase 1 Escrow, Phase 2 Escrow, and Phase 3 Escrow, if Developer elects the Lot 15 Rental Option in accordance with Section 601, as applicable, for recordation in the Official Records a subordination agreement in a form reasonably acceptable to City subordinating such mortgages, deeds of trust and other liens to the Rental Affordable Housing Covenant (“Subordination Agreement – Rental Affordable Units”). City hereby acknowledges and agrees that as a condition of the Subordination Agreement – Rental Affordable Units, the Rental Affordable Housing Covenant to be recorded against each of Lot 14, Lot 3, and Lot 15, if Developer elects the Lot 15 Rental Option in accordance with Section 601, as applicable to the Phased Escrow may be amended to allow all Affordable Units to be made available for rent at an Affordable Rent for Low Income Households (i.e. those earning up
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to 60% of Area Median Income) in the event of a foreclosure of the subordinated mortgage or deed of trust.
706.2. Owner-Occupied Affordable Housing Covenant. Within the time provided in the Schedule of Performance, the “Owner-Occupied Affordable Housing Covenant” shall be executed and acknowledged by City and Developer in the form attached as Attachment No. 7, subject to such commercially reasonable modifications as requested by Developer and its lenders and investors and approved by the City Manager and City Attorney, in their reasonable discretion, and delivered into the Phase 3 Escrow, if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601, and Phase 4 Escrow for recordation in the Official Records. Prior to execution, Developer shall submit Exhibit D [List of Amenities] of the Owner-Occupied Affordable Housing Covenant to the City Manager for approval and insertion, which approval shall not be unreasonably withheld or delayed. The Owner-Occupied Affordable Housing Covenant shall be recorded against Lot 15, if Developer elects the Lot 15 Owner-Occupied Option in accordance with Section 601, and Townhome Lots immediately following delivery and recordation of the Phase 3 Conveyance and Phase 4 Conveyance, respectively, and shall have priority over the liens of all mortgages, deeds of trust and other liens (other than the lien for current, unpaid property taxes). Within the time provided in the Schedule of Performance, Developer shall cause all such mortgagees, deed of trust beneficiaries and other lien holders to execute and deliver to Phase 3 Escrow and Phase 4 Escrow, as applicable, for recordation in the Official Records a subordination agreement in a form reasonably acceptable to City subordinating such mortgages, deeds of trust and other liens to the Owner-Occupied Affordable Housing Covenant (“Subordination Agreement – Owner-Occupied Affordable Units”).
707. Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction. City is deemed the beneficiary of the terms and provisions of this Agreement, including the Project Affordable Housing Covenants, and of the covenants running with the land, for and in its own right and for the purposes of protecting the interests of the community and other parties, public or private, in whose favor and for whose benefit this Agreement, including the Project Affordable Housing Covenants, and the covenants running with the land have been provided, without regard to whether City has been, remains or is an owner of any land or interest therein in the Site. City shall have the right, if the Agreement, Project Affordable Housing Covenants, or covenants are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches to which it or any other beneficiaries of this Agreement, Project Affordable Housing Covenants and covenants may be entitled. The covenants contained in this Agreement shall remain in effect until the issuance of the Certificate of Completion applicable to a Project Phase, except for the following:
(a) The covenants pertaining to the Project Affordable Units, use and maintenance of the Project Improvements on each Project Phase, as set forth in Sections 701, 702, 703, 704 and 706, shall remain in effect for the time period set forth in the Project Affordable Housing Covenants.
(b) The covenants against discrimination, as set forth in Section 705 shall remain in effect in perpetuity.
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800. FINANCIAL PROVISIONS
801. Preliminary Financing Report, Evidence of Financing, and Loan Closings. 801.1. Preliminary Financing Report. Within the time established in the Schedule of Performance, Developer shall prepare and submit to City its plan for debt financing that, coupled with the proposed equity financing, are sufficient to undertake the design and construction of the Project Improvements in each Project Phase in accordance with this Agreement (“Preliminary Financing Report”). The Preliminary Financing Report for each Project Phase shall include the following: (i) cost of design and construction of Project Improvements in each Project Phase; (ii) identification of amount to be deposited annually to make up capital reserve fund for replacement of Project Improvements in each Project Phase subject to a Rental Affordable Housing Covenant; and (iii) private and public sources of funding for the design and construction of the Project Improvements in each Project Phase, amount of funding to be provided by each source, and phasing and timing of funding applications, award and disbursements (the “Project Financing”).
801.2. Evidence of Financing. Within the time established in the Schedule of Performance, Developer shall obtain and submit to City written evidence satisfactory to City that Developer has submitted applications for Project Financing and obtained firm commitments for debt and equity financing necessary to undertake the design and construction of the Project Improvements in each Project Phase in accordance with this Agreement (“Evidence of Financing”). The Evidence of Financing shall include the following: (i) cost of construction of Project Improvements in each Project Phase based on 100% Construction Drawings and a guaranteed maximum price Construction Contract; (ii) identification of amount to be deposited annually to make up capital reserve fund for replacement of Project Improvements in each Project Phase subject to a Rental Affordable Housing Covenant; and (iii) written evidence of private and public sources comprising the Project Financing committed to the Project Improvements in each Project Phase, amount of funding to be provided by each source, and phasing and timing of funding disbursements.
801.3. City Approval. The City Manager shall approve or disapprove the Preliminary Financing Report and Evidence of Financing for each Project Phase within the times established in the Schedule of Performance. Approval shall not be unreasonably withheld. If the City Manager shall reasonably disapprove any portion of the Preliminary Financing Report or Evidence of Financing for a Project Phase, the City Manager shall do so by written notice to Developer stating the reasons for such disapproval and, thereafter, Developer shall utilize good faith, diligent efforts to promptly obtain and submit to City a new Preliminary Financing Report or Evidence of Financing for a Project Phase, as applicable. The City Manager shall approve or disapprove such new Preliminary Financing Report or Evidence of Financing in the same manner and within the same times established in the Schedule of Performance for the approval or disapproval of the Preliminary Financing Report or Evidence of Financing for a Project Phase, as applicable, as initially submitted to City. In the event City disapproves Developer’s Preliminary Financing Report or Evidence of Financing for a Project Phase or Developer fails to obtain and deliver the Preliminary Financing Report or Evidence of Financing for a Project Phase to City as provided above, then Developer may terminate this Agreement as provided herein by Notice to the City and, thereafter, neither Party shall have any rights or obligations hereunder.
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801.4. Loan Closings, Financing, and Notice of Default to City. Prior to or simultaneous with a Phased Closing, Developer’s construction loan(s) shall have closed and all other financing shall have been provided to Developer. Developer shall ensure that any and all parties, public and private, providing financing for design and development of a Project Phase shall provide written notice to City (concurrent with notice to Developer) of any breach or default of Developer under their respective financing documents. 802. Public Improvement Loan. In consideration of Developer’s obligations hereunder, including Developer’s obligation to design, develop, construct, and install the Public Improvements in accordance with the terms of this Agreement, and the Public Improvement Agreement, City shall provide a loan to Developer in connection with Phase 1 Closing in the amount of ONE MILLION ONE HUNDRED FIFTY ONE THOUSAND ONE HUNDRED SEVENTY DOLLARS ($1,151,170.00) (the “Public Improvement Loan”). The Public Improvement Loan shall bear interest at the rate zero percent (0%) per annum and the entire balance shall be due and payable on the fifty-fifth (55th) anniversary of the recordation of the Certificate of Completion for the Phase 1 Project. Developer’s obligation to repay City the Public Improvement Loan shall be evidenced in accordance with the terms of the Promissory Note, substantially in the form attached hereto as Attachment No. 14, to be secured by a Deed of Trust, substantially in the form attached hereto as Attachment No. 15, to be recorded against the Phase 1 Parcels, which Deed of Trust shall contain a “due-on sale or further transfer clause” and be subordinate to Developer’s construction and permanent financing for Phase 1 Project. 803. Conditions Precedent to Public Improvement Loan. City’s obligation to deposit the Public Improvement Loan in the Phase 1 Escrow prior to Phase 1 Closing is conditioned upon the satisfaction by Developer or waiver by City of each and all of the following conditions precedent (“Conditions Precedent to Public Improvement Loan”), which are solely for the benefit of City, and which shall be fulfilled by Developer or waived by City prior to Closing:
(a) City and Developer shall be ready to Close the Phase 1 Escrow for the Phase 1 Conveyance to Developer;
(b) City shall have received evidence and assurances reasonably satisfactory to the City Manager that the building permit for the Phase 1 Project is ready for issuance;
(c) Developer shall have secured the Project Financing approved by City in the Evidence of Financing for the Phase 1 Project; (d) Developer shall be ready to Commence Construction of the Phase 1 Project and shall have obtained the grading permit for the Phase 1 Parcels; (e) Developer shall not be in Default of any of its material obligations under the terms of this Agreement, and no event shall have occurred which, with the passage of time or giving of Notice or both, would constitute such Default hereunder on the part of Developer;
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(f) All representations and warranties of Developer contained herein shall be true and correct in all material respects.
804. Limitations on Assignment of Public Improvement Loan. The right to receive the Public Improvement Loan shall run with the Phase 1 Parcels and shall not be assignable to any person or entity other than Developer or its permitted successors or assigns; provided, however, Developer shall have the right to assign its right to receive the Public Improvement Loan to its lender(s) in connection with any Project Financing approved by City in the Evidence of Financing secured by the Phase 1 Parcels and the Phase 1 Improvements thereon. 805. City Consultant Cost Deposit. Developer acknowledges that the City shall expend resources implementing this Agreement and performance of the tasks required of City in the Schedule of Performance. Within the time established in the Schedule of Performance, Developer shall submit to the City an initial deposit of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) (“City Consultant Cost Deposit”). The City Consultant Cost Deposit shall be placed in a separate City deposit account. Any interest earned on the City Consultant Cost Deposit and any subsequent deposits provided by Developer, as may be required from Developer to augment the City Consultant Cost Deposit from time to time, shall be added to the total City Consultant Cost Deposit amount and may be used in accordance with this Agreement.
The City Consultant Cost Deposit shall be used by the City to pay for the City’s third party consultant costs and expenses incurred to implement this Agreement and negotiate and prepare agreements necessary to implement this Agreement (collectively, the “Implementing Agreements”). Such costs may include, but are not limited to reasonable fees and services of third party consultants and attorneys, selected by the City at its sole discretion, relating to the implementation of this Agreement and the negotiation and preparation of the Implementing Agreements (“Consultant Costs”). Developer acknowledges that it shall be responsible for all Consultant Costs incurred by City, which shall include its city attorney services, currently provided by the firm of Burke Williams & Sorensen, LLP, who will assist City with the negotiation and drafting of the Implementing Agreements. 900. DEFAULTS AND REMEDIES
901. Default; Notice and Cure. Subject to permitted extensions of time as provided in Section 1002, failure by either Party to perform any action or covenant required by this Agreement within the time periods provided herein following Notice and expiration of any applicable cure period, shall constitute a “Default” under this Agreement. A Party claiming a Default shall give written Notice of Default to the other Party specifying the Default complained of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against the other Party, and the other Party shall not be in Default if (a) in the case of a monetary Default, such Party cures the monetary Default within ten (10) business days following receipt of such Notice of Default, or (b) in the case of a non-monetary Default, such Party cures, corrects or remedies the non-monetary Default within thirty (30) days following receipt of such Notice of Default, or if the non-monetary Default cannot reasonably be cured within such thirty- (30) day period, said Party commences to cure the non-monetary Default within said thirty- (30) day period and thereafter completes such cure, correction or remedy with diligence.
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902. Institution of Legal Actions. Except as otherwise specifically provided herein, upon the occurrence of a Default, and the expiration of the applicable cure period pursuant to Section 901 above, the non-defaulting Party shall have the right, in addition to any other rights or remedies, to institute any action at law or in equity to cure, correct, prevent or remedy any Default, or to recover damages for any Default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Sonoma, State of California, or in the Federal District Court for the Northern District of the State of California. Notwithstanding anything herein to the contrary, a Party’s right to recover damages in the event of a Default by the other Party shall be limited to recovery of actual damages and neither Party shall have the right to recover any special, punitive, or consequential damages.
903. Termination. This Agreement, and rights hereunder, may be terminated: (i) if there is an uncured Default, by written Notice from the Party not in Default, (ii) if there is a failure of an express condition (which is not waived by the Party whom the condition benefits) by Notice from the Party whom the condition benefits, or (iii) in accordance with the provisions of Sections 202.4, 203, 302.4, 303, 402.4, 403, 502.4, 503, or 801.3 hereof. Upon expiration or termination of this Agreement, or rights hereunder, against the Site or portions thereof, Developer shall cooperate with City to execute and record such document(s) as may reasonably be requested by City to release the lien of this Agreement against the Site, or portion thereof. 904. Assignment of Developer Plans. In addition to City’s other rights and remedies hereunder, upon City’s request which may be made at any time following occurrence of a Developer Default, Developer shall assign and deliver to City, without charge, all plans, drawings, designs, surveys, soils reports, engineering reports, environmental studies, specifications and cost estimates prepared by or on behalf of Developer in connection with the Project Approvals and Project Improvements (collectively, “Developer Plans”). Developer hereby agrees that City may use any such Developer Plans in connection with any other development of the Site. City shall have the right to work with all architects, engineers and other consultants retained by Developer or with whom Developer has worked in connection with the Project Approvals and Project Improvements, and Developer shall not discourage any such architects, engineers and other consultants from working with City. Developer’s obligations under this Section 904 shall survive expiration or termination of this Agreement. 905. Option to Repurchase. City shall have the additional right, at its option, to repurchase the Phase 1 Parcels, Phase 2 Parcels, Phase 3 Parcel and Phase 4 Parcels, or any portion thereof, along with the Phase 1 Improvements, Phase 2 Improvements, Phase 3 Improvements, and Phase 4 Improvements, respectively, constructed thereon, if after the applicable Phased Conveyance and prior to the issuance of the Certificate of Completion for the applicable Project Phase:
(a) Failure to Commence Construction. Developer fails to Commence Construction of the Project Phase within the time set forth in the Schedule of Performance; or
(b) Failure to Diligently Prosecute Construction to Completion.
Once Developer Commences Construction of a Project Phase, Developer fails to diligently
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prosecute construction of the Project Improvements applicable to the Project Phase to completion within the time set forth in the Schedule of Performance; or (c) Abandonment. Developer abandons or substantially suspends construction of the Project Improvements applicable to the Project Phase for a period of three (3) months after Developer’s receipt of written Notice of such abandonment or suspension from City; or
(d) Unauthorized Sale or Transfer. Developer directly or indirectly, voluntarily or involuntarily sells, assigns, transfers, disposes of or further encumbers or agrees to sell, assign, transfer, dispose of or further encumber or suffer to exist any other lien against all or any portion of or any interest in the Site which claim of lien is maintained for a period of thirty (30) calendar days without discharge, satisfaction thereof, or release through posting of bonds or other forms of security, except liens approved in writing by City in accordance with the terms of this Agreement. For the purpose of this provision, the terms “sell” and “transfer” shall include, in addition to the common and ordinary meaning of those terms and without limiting their generality, transfers made to subsidiary or affiliated entities, and any “change in ownership” as that term is used from time to time in California real property taxation law, except as allowed under this Agreement.
This option shall be subordinate and subject to and be limited by and shall not defeat, render invalid or limit: (i) any mortgage, deed of trust or other security instrument permitted by this Agreement; or (ii) any rights or interests provided in this Agreement for the protection of the holder of such mortgages, deeds of trust or other security instruments.
To exercise its option to purchase with respect to the Site or any portion thereof, City shall pay to Developer in cash an amount equal to: (A) the Purchase Price originally paid by Developer; plus (B) the out-of-pocket costs actually incurred by Developer for labor and materials for the construction of the Project Improvements in a Project Phase or that portion thereof existing at the time City exercises the option to purchase (exclusive of costs paid from the Public Improvement Loan and amounts financed by third parties, if any, to the extent such financing obligations are assumed by City); less (C) any net gains or net income withdrawn or made by Developer from the Site or such portion thereof or the Project Improvements thereon; and less (D) the amount of unpaid liens on the Site or such portion thereof which City agrees to pay, and any unpaid current or past-due installments of taxes or assessments against the Site or such portion thereof which City agrees to pay (collectively, the “Option Price”).
In order to exercise such purchase option, City shall give Developer Notice of such exercise and Developer shall, within forty-five (45) days after Developer’s receipt of such Notice, provide City with a detailed accounting of all of Developer’s costs incurred as provided above, supported by executed contracts, invoices and evidence of payment. City, within thirty (30) days thereafter, shall pay to Developer in cash (through an escrow if desired by City) all sums owing pursuant to this Section 905, and Developer shall thereupon execute and deliver to City a grant deed transferring to City all of Developer’s interest in the Site or portion thereof and improvements thereon, as applicable. The foregoing notwithstanding, the City shall have the continuing right to conduct an audit of all of Developer’s records pertaining to the Option Price for a period of two (2) years following Developer’s execution and delivery to City of the grant
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deed; accordingly, Developer shall maintain accurate books and records supporting its costs of design, construction and installation of the Project Improvements until issuance of a Certificate of Completion for the Phase 1 Improvements and Phase 2 Improvements or two years following termination of this Agreement.
906. Acceptance of Service of Process. If any legal action is commenced by Developer against City, service of process on City shall be made by personal service upon the City Manager or in such other manner as may be provided by law. If any legal action is commenced by City against Developer, service of process on Developer shall be made by personal service upon Robin Zimbler or in such other manner as may be provided by law. 907. Rights and Remedies Are Cumulative. Except as otherwise expressly provided herein, the rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same Default or any other Default by the other Party, except as otherwise expressly provided herein. 908. Inaction Not a Waiver of Default. Any failures or delays by either Party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such Party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies.
1000. GENERAL PROVISIONS
1001. Notices, Demands and Communications Between the Parties. Any approval, disapproval, demand, document or other notice (“Notice”) which either Party may desire to give to the other Party under this Agreement must be in writing and may be given by any commercially acceptable means, including via facsimile or via overnight courier, to the Party to whom the Notice is directed at the address of the Party as set forth below, or at any other address as that Party may later designate by Notice. Any Notice shall be deemed received on the date of delivery if delivered by hand or by first class mail, postage prepaid or if sent via nationally recognized overnight courier; and upon receipt of verification of transmission if sent via facsimile (provided a copy is sent the same day via first-class mail). Notices sent by a Party’s attorney on behalf of such Party shall be deemed given by such Party.
To City: City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
Attention: Jeff Kay, City Manager
Telephone:(510) 596-4300
Email: [email protected]
With copies to: Burke, Williams & Sorensen, LLP
1999 Harrison Street, Suite 1650
Oakland, CA 94612
Attention: Michael G. Biddle, Esq.
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Telephone:(510) 273-8780
Email: [email protected]
To Developer: Freebird Development Company, LLC
1111 Broadway
Oakland, CA 94607
Attention: Robin Zimbler, Manager
Telephone:(510) 319-6959
Email: [email protected]
With a copy to: Gubb & Barshay LLP
235 Montgomery Street, Suite 1110
San Francisco, CA 94101
Attention: Evan Gross, Esq.
Telephone: (415) 781-6600 ext. 6
Email: [email protected]
1002. Enforced Delay; Extension of Times of Performance. Subject to the limitations set forth below, performance by either Party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement, excepting the Phase 1 Outside Date, Phase 2 Outside Date, Phase 3 Outside Date, and Phase 4 Outside Date, shall be extended, where delays or failures to timely perform are due to: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation; unusually severe weather; acts or omissions of the other Party; or acts or failures to act on the part of City or any other public or governmental City or entity (other than the acts or failures to act of City which shall not excuse performance by City). An extension of time for any such cause shall be for the period of the enforced delay provided the Party claiming such extension shall provide Notice to the other Party within thirty (30) days of commencement of such cause and the total time period of such enforced delays shall in no event exceed eighteen (18) months. Any Party claiming such extension shall notify the other(s) promptly after becoming aware of the existence of any event or condition giving rise to such claim. Developer expressly agrees that adverse changes in economic conditions, either of Developer specifically or the economy generally, changes in market conditions or demand, and/or Developer’s inability to obtain financing or other lack of funding to complete the Project Improvements shall not constitute grounds of enforced delay pursuant to this Section 1002. Developer expressly assumes the risk of such adverse economic or market changes and/or inability to obtain financing, whether or not foreseeable as of the Date of Agreement.
Times of performance under this Agreement may also be extended in writing by the mutual agreement of City and Developer; provided, however, the Phase 1 Outside Date, Phase 2 Outside Date, Phase 3 Outside Date, and Phase 4 Outside Date may only be extended with the approval of the City Council, which may be granted, conditioned, or denied in its sole discretion. 1003. Successors and Assigns. Subject to the prohibitions set forth in Section 103 against changes in the ownership, management and control of Developer prior to issuance of the Certificate of Completion for a Project Phase, all of the terms, covenants and conditions of this
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Agreement shall be binding upon Developer, and Developer’s permitted successors and assigns.
Whenever the term “Developer” is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided.
1004. Recordation of Memorandum of Agreement. Within the time provided in the Schedule of Performance, the “Memorandum of Agreement” shall be executed and acknowledged by City and Developer in the form attached as Attachment No. 4, and delivered into the Phase 1 Escrow for recordation against the Site in the Official Records upon the Phase 1 Closing.
1005. Relationship Between City and Developer. It is hereby acknowledged that the relationship between City and Developer is not that of a partnership or joint venture and that City and Developer shall not be deemed or construed for any purpose to be the agent of the other.
Accordingly, except as expressly provided herein or in the Attachments hereto, City shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Site or the Project Improvements.
1006. City Approvals and Actions. Whenever a reference is made herein to an action or approval to be undertaken by City, the City Manager is authorized to act on behalf of City unless specifically provided otherwise or the context would require otherwise. The foregoing notwithstanding, the City Manager may, in his or her discretion, defer any matter for consideration and approval by the City Council. The City Manager is hereby authorized to extend times for performance set forth in the Schedule of Performance and to make other minor changes to this Agreement, and to negotiate and execute such other agreements as are called for in this Agreement, or that are necessary to carry out the intent of this Agreement. Except as otherwise provided in this Agreement, whenever City is required to provide an approval or disapproval, City shall give such approval or disapproval within fifteen (15) business days of a Developer’s request. If City fails to give such approval or disapproval with such 15-business day period, the request shall be deemed disapproved.
1007. Counterparts; Electronic Signatures. This Agreement may be signed in multiple counterparts which, when signed by all Parties, shall constitute a binding agreement.
The Parties agree that this Agreement may be executed and delivered by electronic signatures and that the signatures appearing on this Agreement are the same as handwritten signatures for purposes of validity, enforceability and admissibility. 1008. Integration. This Agreement contains the entire understanding between the Parties relating to the transaction contemplated by this Agreement. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. 1009. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. Reference to section numbers is to sections in this Agreement, unless expressly stated otherwise.
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1010. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word “including” shall be construed as if followed by the words “without limitation.” This Agreement shall be interpreted as though prepared jointly by City and Developer.
1011. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each Party.
1012. Severability. If any term, provision, condition or covenant of this Agreement or its application to any Party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law.
1013. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day and including the last day, unless the last day is a holiday, Saturday or Sunday, or a Friday on which City offices are closed, and then that day is also excluded. The term “holiday” shall mean all holidays as specified in sections 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Time Zone time.
1014. Legal Advice. Each Party represents and warrants to the other the following: it has carefully read this Agreement, and in signing this Agreement, it does so with full knowledge of any right which it may have; it has received independent legal advice from its respective legal counsel as to the matters set forth in this Agreement, or has knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, it has freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other Party, or its respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise.
1015. Time of Essence. Time is of the essence with respect to the performance by City and Developer of each and every obligation and condition of this Agreement. 1016. Cooperation. Each Party agrees to cooperate with the other in this transaction and, in that regard, shall execute any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement. 1017. Conflicts of Interest. No member, official or employee of City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested.
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1018. Time for Acceptance of Agreement by City. This Agreement, when executed by Developer and delivered to City, must be authorized, executed and delivered by City on or before forty-five (45) days after signing and delivery of this Agreement by Developer or this Agreement shall be void, except to the extent that Developer shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement by City. 1019. Developer’s Indemnity. Developer shall defend (with counsel reasonably acceptable to City), indemnify, assume all responsibility for, and hold City and City Parties harmless from all Claims arising directly or indirectly from: (a) any of Developer’s acts, omissions, negligence or willful misconduct, whether such acts, omissions, negligence or willful misconduct be by Developer or by anyone directly or indirectly employed or contracted with by Developer, and (b) performance of the work of Project Improvements in a Project Phase (including design, development, and construction); whether such Claims shall accrue or be discovered before or after expiration or termination of this Agreement or issuance of a Certificate of Completion for a Project Phase. Developer’s indemnity obligations under this Section 1019 shall not extend to Claims to the extent occasioned by the active negligence or willful misconduct of City or City Parties. Notwithstanding the foregoing sentence, Developer shall be required to defend City and City Parties against any and all Claims, regardless of the extent to which (or if at all) City or any City Parties is or are alleged or found to have partially caused or contributed to the Claim. The provisions of this Section 1019 shall survive termination or expiration of this Agreement or any portion thereof.
1020. Nonliability of Officials and Employees of City. No member, official or employee of City or City Parties shall be personally liable to Developer, or any successor in interest, in the event of any Default or breach by City or for any amount which may become due to Developer or its successors, or on any obligations under the terms of this Agreement.
Developer hereby waives and releases any claim it may have against the members, officials or employees of City with respect to any Default or breach by City or for any amount which may become due to Developer or its successor, or on any obligations under the terms of this Agreement.
1021. Assignment by City. City may assign or transfer any of its rights or obligations under this Agreement with the approval of Developer, which approval shall not be unreasonably withheld; provided, however, that City may assign or transfer any of its interests hereunder to any entity controlled by City at any time without the consent of Developer. 1022. Applicable Law. The laws of the State of California, without regard to conflict of laws principles, shall govern the interpretation and enforcement of this Agreement. 1023. Cooperation in the Event of Legal Challenge. City and Developer, at Developer’s sole cost and expense, shall cooperate in the event of any court action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Agreement, and City shall, upon request of Developer, appear in the action and defend its decision. To the extent Developer determines to contest or defend such litigation challenges or requests that City cooperate in those defense efforts, Developer shall reimburse City, within ten (10) days following City’s written demand therefor, which may be made from time to time during the course of such litigation, all costs incurred by City in connection with the litigation
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challenge, including City’s administrative, legal and court costs. If Developer opts to defend any such legal challenge, Developer shall indemnify, defend, and hold harmless City and City Parties from and against any Claims assessed or awarded against City or City by way of judgment, settlement, or stipulation. Nothing herein shall authorize Developer to settle such legal challenge on terms that would constitute an amendment or modification of the Project Approvals or this Agreement, unless such amendment or modification is approved by the City Council in accordance with applicable legal requirements, and City reserves its full legislative discretion with respect thereto.
1024. Termination of Exclusive Negotiation Rights Agreement. City and Developer acknowledge and agree that upon the execution of this Agreement, the ENA referenced in Recital E of this Agreement is thereby terminated and of no further force or effect and neither City nor Developer shall have any further rights or obligations hereunder. [Signatures follow on next page]
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IN WITNESS WHEREOF, City and Developer have executed this Agreement on the respective dates set forth below.
Dated: ____________________
[“Date of Agreement”]
CITY:
CITY OF HEALDSBURG,
a California municipal corporation
By:
Jeffrey Kay, City Manager
APPROVED AS TO FORM:
_________________________________
Samantha Zutler, City Attorney
Dated: ____________________ DEVELOPER:
FREEBIRD DEVELOPMENT COMPANY, LLC,
a California limited liability company
By:
Robin Zimbler, Manager
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T-1487
T-1486
T-1517
T-7827
10" OAK
T-7843
T-7844
T-7842
30" OAK
T-1236
T-1237 T-1239
T-1240
16" OAK
20" OAK
18" OAK
36" OAK
24" OAK 20" OAK
15" OAK
30" OAK
T-1238
30" OAK
30" OAK
12" OAK
14" OAK
5" OAK
14" OAK
14" OAK
24" OAK
289.1
303.6
270.3
275.0
280.8
2'
WALL
W/
6'
WIRE
FENCE
OVERHEAD TELEPHONE
EX WETLANDS
FH
SSCO
BFP
TOP OF BANK
TOP OF BANK
TOP OF BANK
CREEK SETBACK
CREEK SETBACK
CREEK SETBACK
CREEK SETBACK
TOP OF BANK
CREEK SETBACK
TOP OF BANK
CREEK SETBACK
TOP OF BANK
CREEK SETBACK
TOP OF BANK
T
E
TV
E
E
E
E
E
E
E
W
S
S
D
NEW BUS STOP
PASSALACQUA RD
PARKLAND FARMS BLVD
AREA 1
FUTURE COMMUNITY
GARDEN
AREA 6
3-STORY WALK-UP
APARTMENTS
AREA 5
3-STORY CORRIDOR
BLDG
AREA 2
1-STORY
COMMUNITY BLDG &
AMENITIES
AREA 3
3-STORY WALK-UP
BLDGS
AREA 4
TOWNHOUSES
TERRACES
PLAYGROUND
MULTI-USE PATH,
BICYCLE & PED W/
PLANTED BUFFER
SHARED
COURTYARD
SHARED
TERRACE
SPACE &
TRAILHEAD
NEW CROSSWALK &
STOPLIGHT PER PARKLAND
FARMS BLVD EXT. (CITY OF
HEALDSBURG)
8'-10' MULTI-USE PATH,
BICYCLE & PED W/
PLANTED BUFFER
(CONTINUES TO WEST)
CREEK SETBACK
CREEK SETBACK
COMPACTED DIRT
TRAILS & KNOLL
(BASED ON
EXISTING TRAIL
NETWORK, NOT
ADA COMPLIANT)
_______ 1
L1.02
_______ 1
L1.03
_______ 1
L1.05
_______ 1
L1.06
_______ 1
L1.04
CREEK SETBACK
SHADE
STRUCTURE
CARPORT W/ PV
CARPORT W/ PV
CONCRETE CAST-IN-PLACE PEDESTRIAN-RATED PAVING WITH SAW CUT CONTRACTION JOINTS AT 6' MAX. SPACING, 4" THICK OVER 4" AGGREGATE BASE, TYPE 1 PORTLAND CEMENT WITH MEDIUM GRAY INTEGRAL COLOR SCOFIELD "COOL GRAY" 1266 WITH 3 FINISHES:
1. BROOM FINISH
2. SEEDED AGGREGATE
3. ACID ETCHED
OVERALL SITE PLAN LEGEND
CIP CONCRETE BENCH WITH BOARDFORM FINISH, WOOD SEAT,
GALV/PTD BACK AND ARMRESTS AND STEEL FRAMING (SEE PLAN FOR
LOCATIONS AND LENGTHS)
CONCRETE TURF BLOCK GRID PAVER UNITS, 3" MIN. THICK, VEHICULAR AND
FIRE TRUCK RATED WITH SAND BEDDING, TOP SOIL AND NATIVE GRASS SEED
OR OPEN-GRADED AGGREGATE TO MATCH SEEDED PAVING AGGREGATE
BUILDING STRUCTURE OVERHEAD
BUILDING STRUCTURE BELOW
PROPERTY LINE
LIMIT OF WORK
WOOD DECKING WITH STEEL FRAMING AND COUNTERSUNK HARDWARE 12' TALL SHADE CANOPY WITH WOOD POSTS, GALV/PTD STEEL FRAME
AND FABRIC SHADES (SEE PLAN FOR LOCATION AND EXTENTS)
PLAY STRUCTURE TO BE SELECTED BY LANDSCAPE ARCHITECT
UNDERGROUND UTILITY LINES, S.C.D.
NOTES:
1. S.C.D. FOR GRADING AND UTILITY LOCATIONS
DECOMPOSED GRANITE PAVING WITH SUB-GRADE, EDGING AND RELATED ACCESSORIES, FLUSH WITH ADJ. PAVING, TYP. (30% OVERALL D.G. WITH WATER PERMEABLE STABILIZER)
RUBBERIZED PLAY SURFACING WITH SUB-BASE MEETING ASTM STANDARDS
CIP CONCRETE SLIDE WITH TROWEL FINISH
ASPHALT VEHICULAR-RATED PAVING AT PARKING LOTS
EXISTING POLE LIGHT TO REMAIN
LIGHTED SECURITY BOLLARD, 20 PER COURTYARD TYP.
FIRE HYDRANT, S.C.D.
POLE LIGHT WITH L.E.D. FIXTURE EVERY 90' O.C., TYP.
DECOMPOSED GRANITE PAVING AT KNOLL TRAILS
PLANTING AREA AT GRADE,
SEE PLANTING PLAN L5.00
BIORETENTION AREA AT GRADE,
SEE PLANTING PLAN L5.00
48" BOX PROPOSED TREES, SEE PLANTING PLAN L5.00
HYDRO SEED,
SEE PLANTING PLAN L5.00
STREAM SETBACK
SEATTLE / Pier 56, 1201 Alaskan Way, #200
Seattle, WA 98101 / 206.623.3344
SAN FRANCISCO / 660 Market Street, #300
San Francisco, CA 94104 / 415.956.0688
LOS ANGELES / 5837 Adams Blvd
Culver City, CA 90232 / 323.937.2150
mithun.com
®
LANDSCAPE ARCHITECT SEAL
TITLE
PROJECT NO.
DATE
SHEET NUMBER
ORIGINAL SHEET SIZE 30" x 42"
© 2021 MITHUN, INC.
Mithun, Inc. Disclaimer
Any information contained in these electronic files is for informational purposes only. Recipient acknowledges that the information contained herein may either be in draft form or may be revised at any time. Accordingly, Mithun, Inc. makes no representations as to the accuracy of this information. If for any reason a conflict exists between information contained herein and the stamped, signed documents, the information on the signed documents is to be interpreted as correct. In addition, errors and discrepancies can be inadvertently introduced into electronic media by differing hardware, software and operators.
All information contained in this electronic data prepared by Mithun, Inc. as instruments of service are the property of Mithun, Inc., which expressly reserves all ownership rights including any common law, statutory or copyrights. This electronic data is intended for use on the project specified, and shall not be used or relied upon in part or in whole, for any future work on the same building(s) or site(s) or for any other project. The recipient of this information shall not copy, use or modify this information without the prior written authorization of Mithun, Inc. The drawings and/or data contained herein conform to Mithun, Inc.'s standard specification for software and file format. Mithun, Inc. will review any request for providing data in a different file format(s) if such a request is made in writing by the original recipient. Such a request may be considered to be a change in services. The recipient agrees, to the fullest extent permitted by law, to defend, indemnify, and hold Mithun, Inc., its shareholders and employees, harmless from and against any claim, liability, demands, losses, damages, penalties or cost (including attorney's fees and defense costs, whether or not a suit is filed) arising or allegedly arising out of any unauthorized use, reuse or modification or in any way connected with, the incompatibility, readability, or durability of the information contained herein by the recipient or any person or entity that acquires or obtains this information thereon from the recipient without written authorization from Mithun, Inc. This agreement to defend, indemnify and hold Mithun, Inc. harmless also applies to the use of this information on any project or construction site without the involvement of Mithun, Inc. in the construction phase services normally associated with such a project.Your use of the attached/enclosed media, shall constitute an acceptance of the above.
PROJECT
LOCATION
PREPARED FOR
NO. DATE REVISION
NOT FOR CONSTRUCTION
DESIGN PARTNER
PROJECT MANAGER
PROJECT LANDSCAPE ARCHITECT
PROJECT TEAM MEMBERS
CHECK
11/3/2021 12:29:33 PM
L1.00
06/23/21
2032600
OVERALL SITE PLAN
SAGGIO HILLS
AFFORDABLE HOUSING
FREEBIRD
DEVELOPMENT
COMPANY
APN: 091-310-005-000
APN: 091-310-006-000
DESIGN REVIEW SUBMITTAL 1 1" = 50'-0"
OVERALL SITE PLAN
6 4 1
11/03/21
7.A.f
Packet Pg. 302 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA)
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Packet Pg. 304 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) NORTH
© ● TE L (707) 542-6451 FA X (707) 542-5212
15 TH I RD STR EE T , SAN TA RO SA, CA 95401
CI VI L EN G I NE E R S UR BAN PLA NN ER S LAN D SU R V EY O R S LA N D SCAP E ARC H ITECT S
NOTESBENCH MARKPROJECT DATA LEGENDSHEET INDEX
HEALDSBURG, CALIFORNIA
BOUNDARY and LOT LAYOUT
TENTATIVE MAP
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Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) NORTH
© ● TE L (707) 542-6451 FA X (707) 542-5212
15 TH I RD STR EE T , SAN TA RO SA, CA 95401
CI VI L EN G I NE E R S UR BAN PLA NN ER S LAN D SU R V EY O R S LA N D SCAP E ARC H ITECT SSTREET and GRADING IMPROVEMENTS
TENTATIVE MAP
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Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) NORTH
© ● TE L (707) 542-6451 FA X (707) 542-5212
15 TH I RD STR EE T , SAN TA RO SA, CA 95401
CI VI L EN G I NE E R S UR BAN PLA NN ER S LAN D SU R V EY O R S LA N D SCAP E ARC H ITECT S
UTILITY PLAN
TENTATIVE MAP
7.A.f
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Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 4
1 OAK #4853-3615-2888 v1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
Attention: City Clerk
)
)
)
)
)
)
)
)
The document is exempt from recording fees per
Government Code § 27383 and Building Homes & Jobs
Trust Fund Fee per Government Code § 27388.1(a)(2)(D).
MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT
THIS MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT (“Memorandum of Agreement”), dated for identification purposes as of __________, 20__, is entered into by and between the CITY OF HEALDSBURG, a California municipal corporation (“City”), and FREEBIRD DEVELOPMENT COMPANY, LLC, a California limited liability company (“Developer”).
1. Disposition and Development Agreement. City and Developer are parties to a Disposition and Development Agreement dated for identification purposes as of _________, 20__ (“DDA”), for: (i) City’s disposition and sale to Developer of certain real property located in the City of Healdsburg, County of Sonoma, State of California, legally described in Exhibit A, attached hereto and incorporated herein by this reference (“Site”); (ii) the development by Developer of One Hundred Eighteen (118) below market rate residential units, including Ten (10) townhomes and One Hundred Eight (108) multi-family units, with ancillary parking and community amenities (“Affordable Units”), which shall be available for rental and sale to households of extremely low, very low, lower and moderate income, on the Site (“Project”); (iii) Developer to use, operate and maintain the Project, including the Affordable Units, in accordance with the terms of the DDA and the Project Affordable Housing Covenants; and (iv) the provision of certain City Assistance, as defined in the DDA, to Developer. The DDA is available for public inspection and copying at the office of the City Clerk, City of Healdsburg, City Hall, 401 Grove Street, Healdsburg, California 95448. All of the terms, conditions, provisions and covenants of the DDA are incorporated in this Memorandum of Agreement by reference as though written out at length herein, and the DDA and this Memorandum of Agreement shall be deemed to constitute a single instrument or document. Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the DDA.
2. Purpose of Memorandum of Agreement. This Memorandum of Agreement is prepared for recordation purposes only, and in no way modifies the terms, conditions, provisions and covenants of the DDA. In the event of any inconsistency between the terms, conditions, provisions and covenants of this Memorandum of Agreement and the DDA, the terms, conditions, provisions and covenants of the DDA shall prevail.
The parties have executed this Memorandum of Agreement on the dates specified immediately adjacent to their respective signatures.
7.A.f
Packet Pg. 308 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 4
2 OAK #4853-3615-2888 v1
Dated: _____________, 20__
APPROVED AS TO FORM:
___________________________
Samantha Zutler, City Attorney
Dated: _______________, 20__
CITY:
CITY OF HEALDSBURG,
a California municipal corporation
By: _______________________________
Jeffrey Kay, City Manager
[notary acknowledgment required]
DEVELOPER:
FREEBIRD DEVELOPMENT COMPANY,
LLC, a California limited liability company
By: __________________________
Robin Zimbler, Manager
[notary acknowledgment required]
7.A.f
Packet Pg. 309 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4853
-3615-2888 v1
EXHIBIT A
LEGAL DESCRIPTION OF SITE
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Packet Pg. 310 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
ATTACHMENT NO. 5
SCHEDULE OF PERFORMANCE
DISPOSITION OF PHASE 1 PARCELS
Action Date
1. Phase 1 Escrow Opening.
City shall open Phase 1 Escrow with Escrow
Agent for the Conveyance of the Phase 1
Parcels to Developer. (§ 202)
Within 30 calendar days
following the Date of
Agreement.
2. City Consultant Cost Deposit.
Developer shall deposit the City
Consultant Cost Deposit in an initial amount
of $25,000 with City. (§ 805)
Within 30 calendar days
following the Date of
Agreement.
3. Phase 1 Title Report.
Developer shall cause the Title Company to
deliver the Phase 1 Title Report to Developer
and City. (§ 203)
Within 60 calendar days
following the Date of
Agreement.
4. Approval/Disapproval of Phase 1 Title
Exceptions.
Developer shall provide Notice to City of
Developer’s approval or disapproval of Phase
1 Title Exceptions. (§ 203)
Within 60 days following
receipt of Phase 1 Title Report.
5. Submittal of Preliminary Financing Report
for Phase 1 Project.
Developer shall submit its Preliminary
Financing Report for development of the
Phase 1 Project to City. (§ 801.1)
At least 30 calendar days prior
to submittal of an application
for Project Financing, and in
any event no later than 90
calendar days following the
Date of Agreement.
6. Approval of Preliminary Financing Report
for Phase 1 Project.
City shall review the Preliminary Financing Within 15 calendar days
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Packet Pg. 311 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
Action Date
Report for the Phase 1 Project and provide
Developer with notice of approval or
disapproval. (§ 801.3)
following submittal.
7. Project Financing Application for Phase 1
Project.
Developer shall provide City with evidence of
submittal of applications for Project
Financing as identified in approved
Preliminary Financing Report for Phase 1
Project. (§ 801.2)
Within 10 calendar days
following submittal of application by
Developer pursuant to NOFA issued
by federal, state or local agencies.
8. Submittal of Evidence of Financing for
Phase 1 Project.
Developer shall submit its Evidence of
Financing for development of the Phase 1
Project. (§ 801.2)
No later than 180 calendar days
prior to Phase 1 Outside
Closing Date.
9. Approval of Evidence of Financing for
Phase 1 Project.
City shall review the Evidence of Financing
for the Phase 1 Project and provide Developer
with notice of approval or disapproval.
(§ 801.3)
Within 15 calendar days
following submittal by
Developer.
10. Approval of General Contractor and
Construction Contract for Phase 1 Project.
Developer shall obtain approval of the
selected general contractor and the
Construction Contract to be entered into for
the work of the Phase 1 Project. (§ 605.1)
Within 30 calendar days
following City approval of
Evidence of Financing for
Phase 1 Project.
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OAK #4890-6298-2972 v4
Action Date
11. Submittal of Final Map for Site.
Developer shall prepare and submit Final Map
for the Site to City for review and approval.
(§ 602.3)
Within 90 calendar days
following the Date of
Agreement.
12. Submittal of CC&Rs for Site.
Developer shall prepare and submit CC&Rs
for the Site, excluding Parcel B, to City for
review and approval. (§ 704)
Within 90 calendar days
following the Date of Agreement.
13. Approval of CC&Rs for Site.
City shall review the CC&Rs for the Site,
excluding Parcel B, and provide Developer
with notice of approval or disapproval.
(§ 704)
Within 45 calendar days
following submittal.
14. Submittal of Rental Residential Marketing
Plan for Phase 1 Project.
Developer shall prepare and submit Rental
Residential Marketing Plan for Phase 1
Project to City for review and approval.
(§ 702.3)
Within 180 calendar days
following the Phase 1 Closing.
15. Approval of Rental Residential Marketing
Plan for Phase 1 Project.
City shall review the Rental Residential
Marketing Plan for the Phase 1 Project and
provide Developer with notice of approval or
disapproval. (§ 702.3)
Within 45 calendar days
following submittal.
16. Submittal of Supportive Services Plan for
Phase 1 Project.
Developer shall prepare and submit
Supportive Services Plan for Phase 1 Project
to City for review and approval. (§ 702.4)
Within 180 calendar days
following the Phase 1 Closing.
17. Approval of Supportive Services Plan for
Phase 1 Project.
Within 45 calendar days
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OAK #4890-6298-2972 v4
Action Date
City shall review the Supportive Services
Plan for the Phase 1 Project and provide
Developer with notice of approval or
disapproval. (§ 702.4)
following submittal.
18. Submittal of Site Management Plan for
Phase 1 Project.
Developer shall prepare and submit a Site
Management Plan for the Phase 1 Project to
City for review and approval. (§ 702.5)
Within 180 calendar days
following the Phase 1 Closing.
19. Approval of Site Management Plan for
Phase 1 Project.
City shall review the Site Management Plan
for the Phase 1 Project and provide Developer
with notice of approval or disapproval.
(§ 702.5)
Within 45 calendar days
following submittal.
20. Insurance for Phase 1 Project.
Developer shall furnish evidence of required
insurance for Phase 1 Project to City. (§ 606)
Prior to Phase 1 Closing.
21. Subsequent Project Approvals for Phase 1
Project.
Developer shall secure all Subsequent Project
Approvals, including the Final Map for the
Site, for development of the Phase 1 Project.
(§ 602.2)
Prior to Phase 1 Closing.
22. Closing of Construction Loan for Phase 1
Project.
Developer’s construction loan for the Phase 1
Project shall have closed. (§ 801.4)
Prior to or simultaneous with
Phase 1 Closing.
23. Phase 1 Closing.
City and Developer shall close Phase 1
Escrow and Convey the Phase 1 Parcels to
Developer. (§202.4)
Within 10 days following
satisfaction of all of City’s and
Developer’s Conditions
Precedent to Phase 1 Closing,
but in no event later than the
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OAK #4890-6298-2972 v4
Action Date
Phase 1 Outside Date.
24. Record Final Map for Site.
Developer shall secure City approval and
execution of the Final Map for the Site (both
as owner of fee title to Site and in its
regulatory capacity) and deliver to Phase 1
Escrow for recording in Official Records.
(§205.1(b), §205.2(b), §602.3)
Concurrent with Phase 1 Closing.
25. Record Grant Deed for Phase 1 Parcels.
City and Developer shall execute the Grant
Deed for the Phase 1 Parcels and deliver to
Phase 1 Escrow for recording in Official
Records. (§205.1(c), §205.2(c))
Concurrent with Phase 1 Closing.
26. Record Memorandum of Agreement for
Site.
City and Developer shall execute the
Memorandum of Agreement for the Site and
provide to Phase 1 Escrow for recording in
Official Records. (§205.1(c), §205.2(c),
§ 1004)
Concurrent with Phase 1 Closing.
27. Record Rental Affordable Housing
Covenant Against Lot 14.
City and Developer shall execute the Rental
Affordable Housing Covenant and provide to
Phase 1 Escrow for recording against Lot 14
in Official Records. (§205.1(c), §205.2(c),
§706.1)
Concurrent with Phase 1 Closing.
28. Record Subordination Agreement – Rental
Affordable Units Against Lot 14.
Developer shall cause all lienholders to
execute, acknowledge and provide a Subordination
Agreement – Rental Affordable Units to Phase 1
Escrow for recording against Lot 14 in Official
Records. (§205.1(c), §706.1)
Concurrent with Phase 1 Closing.
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OAK #4890-6298-2972 v4
Action Date
29. Record Public Improvement Agreement
for Phase 1 Project.
City and Developer shall execute the Public
Improvement Agreement for Phase 1 Project
and provide to Phase 1 Escrow for recording
against Phase 1 Parcels in Official Records.
(§205.1(b), §205.2(c), § 602.3)
Concurrent with Phase 1 Closing.
30. Public Improvement Bonds for Phase 1
Project.
Developer shall have delivered performance
and labor and material bonds required by
Public Improvement Agreement for the Phase
1 Project to City. (§205.1(b), § 602.3)
Concurrent with Phase 1 Closing.
31. Record CC&Rs for Site.
City shall execute the CC&Rs for the Site,
excluding Parcel B, and provide to Phase 1
Escrow for recording against the Site,
excluding Parcel B, in Official Records.
(§205.2 (b), § 704)
Concurrent with Phase 1 Closing.
32. Record Acknowledgment of CC&Rs
Against Phase 1 Parcels.
Developer shall execute the Acknowledgment
of CC&Rs for the Phase 1 Parcels and provide
to Phase 1 Escrow for recording against the
Phase 1 Parcels in Official Records. (§205.1
(b), § 704)
Concurrent with Phase 1 Closing.
33. Record Parcel A Public Access Easement
Agreement.
City and Developer shall execute the Parcel A
Public Access Easement Agreement and
provide to Phase 1 Escrow for recording
against Parcel A in Official Records. (§ 205.1
(c), § 205.2 (c))
Concurrent with Phase 1 Closing.
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OAK #4890-6298-2972 v4
Action Date
34. Deposit Phase 1 Purchase Price and Phase
1 Closing Costs.
Developer shall have delivered the Phase 1
Purchase Price, or, if applicable, the
Promissory Note and Deed of Trust in
connection with Phase 1 Carry-Back
Financing, and Phase 1 Closing Costs into
Phase 1 Escrow. (§ 205.1 (d))
Concurrent with Phase 1
Closing.
35. Deposit Public Improvement Loan.
City shall have deposited the proceeds of the
Public Improvement Loan into Phase 1
Escrow. (§205.2 (f), § 803)
Concurrent with Phase 1
Closing.
36. Deposit Promissory Note and Deed of
Trust
Developer shall have executed and deposited
the Promissory Note and Deed of Trust in connection
with the Public Improvement Loan into the Phase 1
Escrow. (§205.1 (c), § 802)
Concurrent with Phase 1
Closing.
37. Construction Drawings for Phase 1
Improvements.
Developer shall prepare and submit to City
the Construction Drawings for the Phase 1
Improvements. (§ 604.2)
Concurrent with submittal of
application for building permit
for the Phase 1 Improvements.
38. Approval of Waste Management Plan for
Phase 1 Improvements.
Developer shall obtain approval of Waste
Management Plan for the work of the Phase 1
Improvements. (§ 605.4)
Prior to issuance of a building
permit for the Phase 1
Improvements.
39. Commencement of Construction of Phase 1
Improvements.
Developer shall Commence Construction of
the Phase 1 Improvements. (§ 603)
Within 30 calendar days
following Phase 1 Closing.
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OAK #4890-6298-2972 v4
Action Date
40. Completion of Construction of Phase 1
Improvements.
Developer shall complete construction of the
Phase 1 Improvements. (§ 603)
Within twenty four (24) months
following Commencement of
Construction of Phase 1
Improvements.
41. Waste Management Compliance Report
for Phase 1 Improvements.
Developer shall provide to City Waste
Management Compliance Report for
construction of Phase 1 Improvements.
(§ 605.4)
Prior to the earlier of (a)
issuance of Certificate of
Occupancy for the Phase 1
Improvements, or (b) issuance
of the Certificate of Completion
for the Phase 1 Project.
42. Certificate of Completion for Phase 1
Project.
City shall provide a Certificate of Completion
for the Phase 1 Project to Developer. (§ 610)
Within 30 days following
satisfactory completion of the Phase
1 Improvements, as evidenced by
City’s issuance of a certificate of
occupancy, and Developer’s request
therefor.
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Packet Pg. 318 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
SCHEDULE OF PERFORMANCE
DISPOSITION OF PHASE 2 PARCELS
Action Date
43. Phase 2 Escrow Opening.
City shall open Phase 2 Escrow with Escrow
Agent for the Conveyance of the Phase 2
Parcels to Developer. (§ 302)
Within 30 calendar days
following the Date of
Agreement.
44. Phase 2 Title Report.
Developer shall cause the Title Company to
deliver the Phase 2 Title Report to Developer
and City. (§ 303)
Within 60 calendar days
following the Phase 1 Closing.
45. Approval/Disapproval of Phase 2 Title
Exceptions.
Developer shall provide Notice to City of
Developer’s approval or disapproval of Phase
2 Title Exceptions. (§ 303)
Within 30 calendar days
following receipt of Phase 2
Title Report.
46. Submittal of Preliminary Financing
Report for Phase 2 Project.
Developer shall submit its Preliminary
Financing Report for development of the
Phase 2 Project to City. (§ 801.1)
At least 30 calendar days prior
to submittal of an application
for Project Financing, and in
any event no later than 60
calendar days following the
Phase 1 Closing.
47. Approval of Preliminary Financing
Report for Phase 2 Project.
City shall review the Preliminary Financing
Report for the Phase 2 Project and provide
Developer with notice of approval or
disapproval. (§ 801.3)
Within 10 calendar days
following submittal.
48. Project Financing Application for Phase 2
Project.
Developer shall provide City with evidence
Within 10 calendar days
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Action Date
of submittal of application for Project
Financing as identified in approved
Preliminary Financing Report for Phase 2
Project. (§ 801.2)
following submittal of application by
Developer pursuant to NOFA issued by
federal, state or local agencies.
49. Submittal of Evidence of Financing for
Phase 2 Project.
Developer shall submit its Evidence of
Financing for development of the Phase 2
Project. (§ 801.2)
No later than 180 calendar days
prior to Phase 2 Outside Closing
Date.
50. Approval of Evidence of Financing for
Phase 2 Project.
City shall review the Evidence of Financing
for the Phase 2 Project and provide
Developer with notice of approval or
disapproval. (§ 801.3)
Within 15 calendar days
following submittal by
Developer.
51. Approval of General Contractor and
Construction Contract for Phase 2
Project.
Developer shall obtain approval of the
selected general contractor and the
Construction Contract to be entered into for
the work of Phase 2 Project. (§ 605.1)
Within 30 calendar days
following City approval of
Evidence of Financing for Phase
2 Project.
52. Submittal of Rental Residential Marketing
Plan for Phase 2 Project.
Developer shall prepare and submit Rental
Residential Marketing Plan for Phase 2
Project to City for review and approval.
(§ 702.3)
Within 180 calendar days
following Phase 2 Closing.
53. Approval of Rental Residential Marketing
Plan for Phase 2 Project.
City shall review the Rental Residential
Marketing Plan for the Phase 2 Project and
provide Developer with notice of approval or
disapproval. (§ 702.3)
Within 45 calendar days
following submittal.
7.A.f
Packet Pg. 320 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
Action Date
54. Submittal of Supportive Services Plan for
Phase 2 Project.
Developer shall prepare and submit
Supportive Services Plan for Phase 2 Project
to City for review and approval. (§ 702.4)
Within 180 calendar days
following Phase 2 Closing.
55. Approval of Supportive Services Plan for
Phase 2 Project.
City shall review the Supportive Services
Plan for the Phase 2 Project and provide
Developer with notice of approval or
disapproval. (§ 702.4)
Within 45 calendar days
following submittal.
56. Submittal of Site Management Plan for
Phase 2 Project.
Developer shall prepare and submit a Site
Management Plan for the Phase 2 Project to
City for review and approval. (§ 702.5)
Within 180 calendar days
following Phase 2 Closing.
57. Approval of Site Management Plan for
Phase 2 Project.
City shall review the Site Management Plan
for the Phase 2 Project and provide
Developer with notice of approval or
disapproval. (§ 702.5)
Within 45 calendar days
following submittal.
58. Insurance for Phase 2 Project.
Developer shall furnish evidence of required
insurance for Phase 2 Project to City. (§ 606)
Prior to Phase 2 Closing.
59. Subsequent Project Approvals for Phase 2
Project.
Developer shall secure all Subsequent Project
Approvals for development of the Phase 2
Project. (§ 602.2)
Prior to Phase 2 Closing.
60. Closing of Construction Loan for Phase 2
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OAK #4890-6298-2972 v4
Action Date
Project.
Developer’s construction loan for the Phase 2
Project shall have closed. (§ 801.4)
Prior to or simultaneous with
Phase 2 Closing.
61. Phase 2 Closing.
City and Developer shall close Phase 2
Escrow and Convey the Phase 2 Parcels to
Developer. (§302.4)
Within 10 days following
satisfaction of all of City’s and
Developer’s Conditions
Precedent to Phase 2 Closing,
but in no event later than the
Phase 2 Outside Date.
62. Record Grant Deed for Phase 2 Parcels.
City and Developer shall execute the Grant
Deed for the Phase 2 Parcels and deliver to
Phase 2 Escrow for recording in Official
Records. (§305.1(c), §305.2 (b))
Concurrent with Phase 2 Closing.
63. Record Rental Affordable Housing
Covenant Against Lot 3.
City and Developer shall execute the Rental
Affordable Housing Covenant and provide to
Phase 2 Escrow for recording against Lot 3 in
Official Records. (§305.1(c), §305.2 (b),
§706.1)
Concurrent with Phase 2
Closing.
64. Record Subordination Agreement –
Rental Affordable Units Against Lot 3.
Developer shall cause all lienholders to
execute and acknowledge a Subordination
Agreement – Rental Affordable Units and
provide to Phase 2 Escrow for recording
against Lot 3 in Official Records. (§305.1(c),
§706.1)
Concurrent with Phase 2 Closing.
65. Record Acknowledgment of CC&Rs
Against Phase 2 Parcels.
Developer shall execute the Acknowledgment
Concurrent with Phase 2
Closing.
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OAK #4890-6298-2972 v4
Action Date
of CC&Rs for the Phase 2 Parcels and
provide to Phase 2 Escrow for recording
against the Phase 2 Parcels in Official
Records. (§305.1 (c), § 704)
66. Record Lot 3 Ingress & Egress Easement
Agreement.
City and Developer shall execute the Lot 3
Ingress & Egress Easement Agreement and
provide to Phase 2 Escrow for recording
against Lot 3 in Official Records. (§ 305.1
(c), § 305.2 (b))
Concurrent with Phase 2
Closing.
67. Deposit Phase 2 Purchase Price and Phase
2 Closing Costs.
Developer shall have delivered the Phase 2
Purchase Price, or, if applicable, the
Promissory Note and Deed of Trust in
connection with Phase 2 Carry-Back
Financing, and Phase 2 Closing Costs into
Phase 2 Escrow. (§ 305.1 (d))
Concurrent with Phase 2
Closing.
68. Construction Drawings for Phase 2
Improvements.
Developer shall prepare and submit to City
the Construction Drawings for the Phase 2
Improvements. (§ 604.2)
Concurrent with submittal of
application for building permit
for the Phase 2 Improvements.
69. Approval of Waste Management Plan for
Phase 2 Improvements.
Developer shall obtain approval of Waste
Management Plan for the work of the Phase 2
Improvements. (§ 605.4)
Prior to issuance of a building
permit for the Phase 2
Improvements.
70. Commencement of Construction of Phase
2 Improvements.
Developer shall Commence Construction of
the Phase 2 Improvements. (§ 603)
Within 30 calendar days
following Phase 2 Closing.
7.A.f
Packet Pg. 323 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
Action Date
71. Completion of Construction of Phase 2
Improvements.
Developer shall complete construction of the
Phase 2 Improvements. (§ 603)
Within twenty four (24) months
following Commencement of
Construction of Phase 2
Improvements.
72. Waste Management Compliance Report
for Phase 2 Improvements.
Developer shall provide to City Waste
Management Compliance Report for
construction of Phase 2 Improvements.
(§ 605.4)
Prior to the earlier of (a)
issuance of Certificate of
Occupancy for the Phase 2
Improvements, or (b) issuance
of the Certificate of Completion
for the Phase 2 Project.
73. Certificate of Completion for Phase 2
Project.
City shall provide a Certificate of
Completion for the Phase 2 Project to
Developer. (§ 610)
Within 30 days following
satisfactory completion of the Phase
2 Improvements, as evidenced by
City’s issuance of a certificate of
occupancy, and Developer’s request
therefor.
7.A.f
Packet Pg. 324 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
SCHEDULE OF PERFORMANCE
DISPOSITION OF PHASE 3 PARCEL
Action Date
74. Phase 3 Escrow Opening.
City shall open Phase 3 Escrow with Escrow
Agent for the Conveyance of the Phase 3 Parcel
to Developer. (§ 402)
Within 30 calendar days
following the Date of
Agreement.
75. Phase 3 Title Report.
Developer shall cause the Title Company to
deliver the Phase 3 Title Report to Developer
and City. (§ 403)
Within 60 calendar days
following the Phase 1
Closing.
76. Approval/Disapproval of Phase 3 Title
Exceptions.
Developer shall provide Notice to City of
Developer’s approval or disapproval of the
Phase 3 Title Exceptions. (§ 403)
Within 30 days following
receipt of Phase 3 Title
Report.
77. Submittal of Preliminary Financing Report
for Phase 3 Project.
Developer shall submit its Preliminary
Financing Report for development of the Phase
3 Project to City. (§ 801.1)
At least 30 calendar days
prior to submittal of an
application for Project
Financing, and in any event
no later than 60 calendar
days following Phase 1
Closing.
78. Approval of Preliminary Financing Report
for Phase 3 Project.
City shall review the Preliminary Financing
Report for the Phase 3 Project and provide
Developer with notice of approval or
disapproval. (§ 801.3)
Within 10 calendar days
following submittal.
79. Public Financing Application for Phase 3
7.A.f
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OAK #4890-6298-2972 v4
Action Date
Project.
Developer shall provide City with evidence of
submittal of application for Project Financing as
identified in approved Preliminary Financing
Report for Phase 3 Project. (§ 801.2)
Within 10 calendar days
following submittal of application
by Developer pursuant to NOFA
issued by federal, state or local
agencies.
80. Submittal of Evidence of Financing for Phase
3 Project.
Developer shall submit its Evidence of
Financing for development of the Phase 3
Project to City. (§ 801.2)
No later than 180 calendar
days prior to Phase 3 Outside
Closing Date.
81. Approval of Evidence of Financing for Phase
3 Project.
City shall review the Evidence of Financing for
Phase 3 Project and provide Developer with
notice of approval or disapproval. (§ 801.3)
Within 15 calendar days
following submittal by
Developer.
82. Election of Lot 15 Option.
Developer shall provide City with written notice
of its election to develop and construct the Lot
15 Improvements pursuant to Lot 15 Rental
Option or Lot 15 Owner-Occupied Option.
(§ 601)
Within 30 calendar days
following City’s approval of
Evidence of Financing.
83. Approval of General Contractor and
Construction Contract for Phase 3 Project.
Developer shall obtain approval of the selected
general contractor and the Construction Contract
to be entered into for the work of Phase 3
Project. (§ 605.1)
Within 30 calendar days
following City’s approval of
Evidence of Financing.
7.A.f
Packet Pg. 326 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
Action Date
84. Submittal of Rental Residential Marketing
Plan for Phase 3 Project, if applicable.
Developer shall prepare and submit Rental
Residential Marketing Plan for Phase 3 Project,
if applicable, to City for review and approval.
(§ 702.3)
Within 180 days following
Phase 3 Closing.
85. Approval of Rental Residential Marketing
Plan for Phase 3 Project, if applicable.
City shall review the Rental Residential
Marketing Plan for the Phase 3 Project, if
applicable, and provide Developer with notice
of approval or disapproval. (§ 702.3)
Within 45 calendar days
following submittal.
86. Submittal of Supportive Services Plan for
Phase 3 Project, if applicable.
Developer shall prepare and submit Supportive
Services Plan for Phase 3 Project, if applicable,
to City for review and approval. (§ 702.4)
Within 180 calendar days
following Phase 3 Closing.
87. Approval of Supportive Services Plan for
Phase 3 Project, if applicable.
City shall review the Supportive Services Plan
for Phase 3 Project, if applicable, and provide
Developer with notice of approval or
disapproval. (§ 702.4)
Within 45 calendar days
following submittal.
88. Submittal of Site Management Plan for Phase
3 Project.
Developer shall prepare and submit a Site
Management Plan for the Phase 3 Project to City
for review and approval. (§ 702.5)
Within 180 calendar days
following Phase 3 Closing.
89. Approval of Site Management Plan for Phase
3 Project.
City shall review Site Management Plan for
Phase 3 Project and provide Developer with
notice of approval or disapproval. (§702.5)
Within 45 calendar days
following submittal.
7.A.f
Packet Pg. 327 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
Action Date
90. Submittal of Owner-Occupied Residential
Marketing Plan for Phase 3 Project, if
applicable.
Developer shall prepare and submit OwnerOccupied Residential Marketing Plan for Phase 3 Project, if applicable, to City for review and
approval. (§ 703.3)
Within 180 calendar days
following Phase 3 Closing.
91. Approval of Owner-Occupied Residential
Marketing Plan for Phase 3 Project, if
applicable.
City shall review the Owner-Occupied
Residential Marketing Plan for Phase 3 Project,
if applicable, and provide Developer with notice
of approval or disapproval. (§ 703.3)
Within 45 calendar days
following submittal.
92. Insurance for Phase 3 Project.
Developer shall furnish evidence of required
insurance for Phase 3 Project to City. (§ 606)
Prior to Phase 3 Closing.
93. Subsequent Project Approvals for Phase 3
Project.
Developer shall secure all Subsequent Project
Approvals for development of the Phase 3
Project. (§ 602.2)
Prior to Phase 3 Closing.
94. Closing of Construction Loan for Phase 3
Project.
Developer’s construction loan for Phase 3
Project shall have closed. (§ 801.4)
Prior to or simultaneous with
Phase 3 Closing.
95. Phase 3 Closing.
City and Developer shall close Phase 3 Escrow
and Convey the Phase 3 Parcel to Developer.
(§402.4)
Within 10 calendar days
following satisfaction of all
of City’s and Developer’s
Conditions Precedent to
Phase 3 Closing, but in no
event later than the Phase 3
7.A.f
Packet Pg. 328 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
Action Date
Outside Date.
96. Record Grant Deed for Phase 3 Parcel.
City and Developer shall execute the Grant Deed
for the Phase 3 Parcel and deliver to Phase 3
Escrow for recording in Official Records.
(§ 405.1 (c), § 405.2 (b))
Concurrent with Phase 3 Closing.
97. Record Project Affordable Housing
Covenants Against Lot 15.
As applicable, City and Developer shall execute
the Rental Affordable Housing Covenant or the
Owner-Occupied Affordable Housing Covenant
and provide to Phase 3 Escrow for recording
against Lot 15 in Official Records. (§ 405.1(c),
§ 405.2(b), § 706.1, § 706.2)
Concurrent with Phase 3
Closing.
98. Record Subordination Agreement – Rental
Affordable Units or Subordination
Agreement – Owner-Occupied Affordable
Units Against Lot 15.
As applicable, Developer shall cause all
lienholders to execute and acknowledge a
Subordination Agreement – Rental Affordable
Units or Subordination Agreement – OwnerOccupied Affordable Units and provide to Phase 3 Escrow for recording against Lot 15 in Official
Records. (§ 405.1(c), § 706.1, § 706.2)
Concurrent with Phase 3 Closing.
99. Record Acknowledgment of CC&Rs Against
Lot 15.
Developer shall execute the Acknowledgment of
CC&Rs for the Phase 3 Parcel and provide to
Phase 3 Escrow for recording against Lot 15 in
Official Records. (§ 405.1 (c), § 704)
Concurrent with Phase 3
Closing.
100. Deposit Phase 3 Purchase Price and Phase 3
Closing Costs.
Developer shall have delivered the Phase 3 Concurrent with Phase 3
7.A.f
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OAK #4890-6298-2972 v4
Action Date
Purchase Price, or, if applicable, the Promissory
Note and Deed of Trust in connection with
Phase 3 Carry-Back Financing, and Phase 3
Closing Costs into Phase 3 Escrow. (§ 405.1
(d))
Closing.
101. Construction Drawings for Phase 3
Improvements.
Developer shall prepare and submit to City the
Construction Drawings for the Phase 3
Improvements. (§ 604.2)
Concurrent with submittal of
application for building
permit for the Phase 3
Improvements.
102. Approval of Waste Management Plan for
Phase 3 Improvements.
Developer shall obtain approval of Waste
Management Plan for the work of Phase 3
Improvements. (§ 605.4)
Prior to issuance of a
building permit for the Phase
3 Improvements.
103. Commencement of Construction of Phase 3
Improvements.
Developer shall Commence Construction of the
Phase 3 Improvements. (§ 603)
Within 30 calendar days
following Phase 3 Closing.
104. Completion of Construction of Phase 3
Improvements.
Developer shall complete construction of the
Phase 3 Improvements. (§ 603)
Within twenty four (24)
months following
Commencement of
Construction of Phase 3
Improvements.
105. Waste Management Compliance Report for
Phase 3 Improvements.
Developer shall provide to City Waste
Management Compliance Report for
construction of Phase 3 Improvements. (§ 605.4)
Prior to the earlier of (a)
issuance of Certificate of
Occupancy for the Phase 3
Improvements, or (b)
issuance of the Certificate of
Completion for the Phase 3
7.A.f
Packet Pg. 330 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
Action Date
Project.
106. Certificate of Completion for Phase 3
Improvements.
City shall provide a Certificate of Completion
for the Phase 3 Project to Developer. (§ 610)
Within 30 days following
satisfactory completion of the
Phase 3 Improvements, as
evidenced by City’s issuance of a
certificate of occupancy, and
Developer’s request therefor.
SCHEDULE OF PERFORMANCE
7.A.f
Packet Pg. 331 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
DISPOSITION OF PHASE 4 PARCELS
Action Date
107. Phase 4 Escrow Opening.
City shall open Phase 4 Escrow with Escrow
Agent for the Conveyance of the Phase 4
Parcels to Developer. (§ 502)
Within 30 calendar days
following the Date of
Agreement.
108. Phase 4 Title Report.
Developer shall cause the Title Company to
deliver the Phase 4 Title Report to Developer
and City. (§ 503)
Within 60 calendar days
following the Phase 1 Closing.
109. Approval/Disapproval of Phase 4 Title
Exceptions.
Developer shall provide Notice to City of
Developer’s approval or disapproval of Phase
4 Title Exceptions. (§ 503)
Within 30 days following
receipt of Phase 4 Title Report.
110. Submittal of Preliminary Financing Report
for Phase 4 Project.
Developer shall submit its Preliminary
Financing Report for development of the
Phase 4 Project to City. (§ 801.1)
At least 30 days prior to
submittal of an application for
Project Financing, and in any
event no later than 60 calendar
days following the Phase 1
Closing.
111. Approval of Preliminary Financing Report
for Phase 4 Project.
City shall review the Preliminary Financing
Report for the Phase 4 Project and provide
Developer with notice of approval or
disapproval. (§ 801.3)
Within 10 calendar days
following submittal.
112. Project Financing Application for Phase 4
Project.
Developer shall provide City with evidence of
submittal of application for Project Financing
Within 10 calendar days
following submittal by Developer
7.A.f
Packet Pg. 332 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
Action Date
as identified in approved Preliminary
Financing Report for Phase 4 Project.
(§ 801.2)
pursuant to NOFA issued by federal,
state or local agencies.
113. Submittal of Evidence of Financing for
Phase 4 Project.
Developer shall submit its Evidence of
Financing for development of the Phase 4
Project. (§ 801.2)
No later than 180 calendar days
prior to Phase 4 Outside
Closing Date.
114. Approval of Evidence of Financing for
Phase 4 Project.
City shall review the Evidence of Financing
for the Phase 4 Project and provide Developer
with notice of approval or disapproval.
(§ 801.3)
Within 15 calendar days
following submittal by
Developer.
115. Approval of General Contractor and
Construction Contract for Phase 4 Project.
Developer shall obtain approval of the
selected general contractor and the
Construction Contract to be entered into for
the work of the Phase 4 Project. (§ 605.1)
Within 30 calendar days
following City approval of
Evidence of Financing for
Phase 4 Project.
116. Submittal of Site Management Plan for
Phase 4 Project.
Developer shall prepare and submit a Site
Management Plan for the Phase 4 Project to
City for review and approval. (§ 702.5)
Within 180 calendar days
following Phase 4 Closing.
117. Approval of Site Management Plan for
Phase 4 Project.
City shall review the Site Management Plan
for the Phase 4 Project and provide Developer
with notice of approval or disapproval.
(§ 702.5)
Within 45 calendar days
following submittal.
7.A.f
Packet Pg. 333 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
Action Date
118. Submittal of Owner-Occupied Residential
Marketing Plan for Phase 4 Project.
Developer shall prepare and submit OwnerOccupied Residential Marketing Plan for Phase 4 Project to City for review and
approval. (§ 703.3)
Within 180 calendar days
following Phase 4 Closing.
119. Approval of Owner-Occupied Residential
Marketing Plan for Phase 4 Project.
City shall review the Owner-Occupied
Residential Marketing Plan for Phase 4
Project and provide Developer with notice of
approval or disapproval. (§ 703.3)
Within 45 calendar days
following submittal.
120. Insurance for Phase 4 Project.
Developer shall furnish evidence of required
insurance for Phase 4 Project to City. (§ 606)
Prior to Phase 4 Closing.
121. Subsequent Project Approvals for Phase 4
Project.
Developer shall secure all Subsequent Project
Approvals for development of the Phase 4
Project. (§ 602.2)
Prior to Phase 4 Closing.
122. Closing of Construction Loan for Phase 4
Project.
Developer’s construction loan for the Phase 4
Project shall have closed. (§ 801.4)
Prior to or simultaneous with
Phase 4 Closing.
123. Phase 4 Closing.
City and Developer shall close Phase 4
Escrow and Convey the Phase 4 Parcels to
Developer. (§502.4)
Within 10 days following
satisfaction of all of City’s and
Developer’s Conditions
Precedent to Phase 4 Closing,
but in no event later than the
Phase 4 Outside Date.
124. Record Grant Deed for Phase 4 Parcels.
7.A.f
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OAK #4890-6298-2972 v4
Action Date
City and Developer shall execute the Grant
Deed for the Phase 4 Parcels and deliver to
Phase 4 Escrow for recording in Official
Records. (§ 505.1 (c), § 505.2 (b))
Concurrent with Phase 4 Closing.
125. Record Owner-Occupied Affordable
Housing Covenant Against Phase 4 Parcels.
City and Developer shall execute the OwnerOccupied Affordable Housing Covenant and provide to Phase 4 Escrow for recording
against the Phase 4 Parcels in Official
Records. (§505.1 (c), §505.2 (b), §706.2)
Concurrent with Phase 4
Closing.
126. Record Subordination Agreement –
Owner-Occupied Affordable Units Against
Phase 4 Parcels.
Developer shall cause all lienholders to
execute and acknowledge a Subordination
Agreement – Owner-Occupied Affordable
Units and provide to Phase 4 Escrow for
recording against the Phase 4 Parcels in
Official Records. (§505.1 (c), §706.2)
Concurrent with Phase 4 Closing.
127. Record Acknowledgment of CC&Rs
Against Phase 4 Parcels.
Developer shall execute the Acknowledgment
of CC&Rs and provide to Phase 4 Escrow for
recording against the Phase 4 Parcels in
Official Records. (§505.1 (c), § 704)
Concurrent with Phase 4
Closing.
128. Deposit Phase 4 Purchase Price and Phase
4 Closing Costs.
Developer shall have delivered the Phase 4
Purchase Price and Phase 4 Closing Costs
into Phase 4 Escrow. (§ 505.1 (d))
Concurrent with Phase 4
Closing.
7.A.f
Packet Pg. 335 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
Action Date
129. Construction Drawings for Phase 4
Improvements.
Developer shall prepare and submit to City
the Construction Drawings for the Phase 4
Improvements. (§ 604.2)
Concurrent with submittal of
application for building permit
for the Phase 4 Improvements.
130. Approval of Waste Management Plan for
Phase 4 Improvements.
Developer shall obtain approval of Waste
Management Plan for the work of the Phase 4
Improvements. (§ 605.4)
Prior to issuance of a building
permit for the Phase 4
Improvements.
131. Commencement of Construction of Phase 4
Improvements.
Developer shall Commence Construction of
the Phase 4 Improvements. (§ 603)
Within 30 days following Phase
4 Closing.
132. Completion of Construction of Phase 4
Improvements.
Developer shall complete construction of the
Phase 4 Improvements. (§ 603)
Within twenty four (24) months
following Commencement of
Construction of Phase 4
Improvements.
133. Waste Management Compliance Report
for Phase 4 Improvements.
Developer shall provide to City Waste
Management Compliance Report for
construction of Phase 4 Improvements.
(§ 605.4)
Prior to the earlier of (a)
issuance of Certificate of
Occupancy for the Phase 4
Improvements, or (b) issuance
of the Certificate of Completion
for the Phase 4 Project.
7.A.f
Packet Pg. 336 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) ATTACHMENT NO. 5
OAK #4890-6298-2972 v4
Action Date
134. Certificate of Completion for Phase 4
Improvements.
City shall provide a Certificate of Completion
for the Phase 4 Project to Developer. (§ 610)
Within 30 days following
satisfactory completion of the Phase
4 Improvements, as evidenced by
City’s issuance of a certificate of
occupancy, and Developer’s request
therefor.
7.A.f
Packet Pg. 337 Attachment: 3A Healdsburg_Freebird_Disposition and Development Agreement (4000 : Saggio Hills Affordable Housing TM, DA, DDA) OAK #4889-6516-3838 v4
Rental Affordable Housing Covenant